AGREEMENT AND PLAN OF MERGER
BY AND BETWEEN
GLOBAL ENVIROTECH, INC.
AND
QLINKS AMERICA, INC.
May 25, 2006
TABLE OF CONTENTS
ARTICLE I Definitions.............................................1
ARTICLE II Transactions; Terms of Transaction; Manner of Converting Shares...5
2.1 Transaction.................................................5
2.2 Time and Place of Closing...................................5
2.3 Effective Time..............................................5
2.4 Charter.....................................................5
2.5 Bylaws......................................................6
2.6 Directors and Officers......................................6
2.7 Conversion of Shares........................................6
2.8 Exchange of Shares..........................................6
2.9 Rights of Former QLINKS Stockholders........................7
2.10 Legending of Shares.........................................7
2.11 Fractional Shares...........................................7
2.12 Lost, Stolen or Destroyed Certificates......................7
ARTICLE III Representations and Warranties of GLOBAL, PURCHASER and
GLOBAL SHAREHOLDERS....................................8
3.1 Organization; Standing and Power............................8
3.2 Authorization; Enforceability...............................8
3.3 No Violation or Conflict....................................8
3.4 Consents of Governmental Authorities and Others.............9
3.5 Conduct of Business.........................................9
3.6 Litigation..................................................9
3.7 Brokers.....................................................9
3.8 Compliance..................................................10
3.9 Charter, Bylaws and Corporate Records.......................10
3.10 Subsidiaries and Investments................................10
3.11 Capitalization..............................................10
3.12 Rights, Warrants, Options...................................10
3.13 Commission Filings and Financial Statements.................11
3.14 Absence of Undisclosed Liabilities..........................11
3.15 Real Property...............................................11
3.16 List of Accounts and Proxies................................11
3.17 Personnel...................................................11
3.18 Employment Agreements and Employee Benefit Plans............12
3.19 Tax Matters.................................................12
3.20 Material Agreements.........................................14
3.21 Guaranties..................................................14
3.22 Environmental Matters.......................................15
3.23 Absence of Certain Business Practices.......................15
3.24 Disclosure..................................................15
ARTICLE IV Representations and Warranties of QLINKS................16
4.1 Organization................................................16
4.2 Authorization; Enforceability...............................16
4.3 No Violation or Conflict....................................16
4.4 Consents of Governmental Authorities and Others.............16
4.5 Brokers.....................................................17
4.6 Charter, Bylaws and Corporate Records.......................17
4.7 Subsidiaries and Investments................................17
4.8 Capitalization..............................................17
4.9 Rights, Warrants, Options...................................17
ARTICLE V Additional Agreements...................................17
5.1 Survival of the Representations and Warranties..............17
5.2 Investigation...............................................18
5.4 Indemnity Procedure.........................................18
ARTICLE VI Closing; Deliveries; Conditions Precedent...............19
6.1 Closing; Effective Date.....................................19
6.2 Deliveries..................................................19
6.3 Conditions Precedent to the Obligations of QLINKS...........21
6.4 Conditions Precedent to the Obligations of GLOBAL...........22
6.5 Best Efforts................................................22
6.6 Termination.................................................22
ARTICLE VII Covenants...............................................23
7.1 General Confidentiality.....................................23
7.2 Continuing Obligations......................................24
7.3 Satisfaction of Certain Outstanding Payables................24
7.4 Tax Matters.................................................24
ARTICLE VIII Miscellaneous...........................................25
8.1 Notices.....................................................25
8.2 Entire Agreement; Incorporation.............................26
8.3 Binding Effect..............................................26
8.4 Assignment..................................................26
8.5 Waiver and Amendment........................................26
8.6 No Third Party Beneficiary..................................26
8.7 Severability................................................26
8.8 Expenses....................................................26
8.9 Headings....................................................27
8.10 Other Remedies; Injunctive Relief...........................27
8.11 Counterparts................................................27
8.12 Remedies Exclusive..........................................27
8.13 Governing Law...............................................27
8.14 Jurisdiction and Venue......................................27
8.14 Participation of Parties....................................28
8.14 Further Assurances..........................................28
8.14 Publicity...................................................28
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (the "Agreement"), made and entered into
as of this 16th day of June, 2006, by and among QLINKS AMERICA, INC., a Colorado
Corporation ("QLINKS"), and GLOBAL Envirotech, INC., a Colorado Corporation
("GLOBAL").
W I T N E S S E T H:
Recitals
WHEREAS, the parties desire to enter into a merger of GLOBAL into QLINKS;
WHEREAS, the respective Boards of Directors of QLINKS and GLOBAL deem
the transactions described herein to be in the best interests of their
respective companies and their respective shareholders;
WHEREAS, it is the intention of the parties hereto that (a) QLINKS will
cause a statutory merger to occur with GLOBAL, whereby GLOBAL is merged into
QLINKS and (b) QLINKS as the surviving company and as owner of 90.6% of the
equity interest in GLOBAL shall continue to conduct its business and operations
as the operating company;
WHEREAS, each of the parties intends that the restructuring of the
above-mentioned corporations required in order to effect such Merger (the
"Merger") shall be effected in the manner provided for herein and it is the
intention of the parties to this Agreement that the transaction for federal
income tax purposes shall qualify as a "Merger" within the meaning of Section
368(a) of the Code; and
WHEREAS, the transactions described in this Agreement are subject to
the satisfaction of certain other conditions described in this Agreement.
NOW, THEREFORE, in consideration of the above and the mutual
warranties, representations, covenants, and agreements set forth herein, the
parties agree as follows:
ARTICLE I
Definitions
In addition to terms defined elsewhere in this Agreement, the following
terms when used in this Agreement shall have the meanings indicated below:
"Affiliate" shall mean with respect to a specified Person, any other
Person which, directly or indirectly through one or more intermediaries,
controls or is controlled by or is under common control with such Person, and
without limiting the generality of the foregoing, includes, with respect to a
Person (a) any other Person which beneficially owns or holds ten percent (10%)
or more of any class of voting securities or other securities convertible into
voting securities of such Person or beneficially owns or holds ten percent (10%)
or more of any other equity interests in such Person, (b) any other Person with
respect to which such Person beneficially owns or holds ten percent (10%) or
more of any class of voting securities or other securities convertible into
voting securities of such Person, or owns or holds ten percent (10%) or more of
the equity interests of the other Person, and (c) any director or senior officer
of such Person. For purposes of this definition, the term "control" (including,
with correlative meanings, the terms "controlled by" and "under common control
with"), as used with respect to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of such Person, whether through the ownership of voting securities or
by contract or otherwise.
"Agreement" shall mean this Agreement and Plan of Merger together with
all exhibits and schedules referred to herein, which exhibits and schedules are
incorporated herein and made a part hereof.
"Certificates" shall have the meaning set forth in Section 2.8.
"Closing" shall have the meaning set forth in Section 2.2.
"Closing Date" shall mean the date that the Closing takes place.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Commission" shall mean the United States Securities and Exchange
Commission.
"Consideration Shares" shall have the meaning set forth in Section
2.7(c).
"Effective Time" shall have the meaning set forth in Section 2.3.
"Employee Benefit Plans" shall have the meaning set forth in Section
3.18.
"Environmental Laws" shall have the meaning set forth in Section 3.22.
"ERISA" shall have the meaning set forth in Section 3.18.
"Financial Statements of GLOBAL" shall mean (i) the audited balance
sheet and the audited statements of income, cash flow and retained earnings of
GLOBAL for the twelve (12) month period ended December 31, 2005, and (ii) the
unaudited balance sheet and the unaudited statements of income, cash flow and
retained earnings of GLOBAL for the period ended March 31, 2006 including in
each such case any related notes, each prepared according to GAAP consistently
applied with prior periods, except as set forth on Schedule 3.13.
"GAAP" shall have the meaning set forth in Section 3.13.
"Guaranty" shall mean, as to any Person, all liabilities or obligations
of such Person, with respect to any indebtedness or other obligations of any
other Person, which have been guaranteed, directly or indirectly, in any manner
by such Person, through an agreement, contingent or otherwise, to purchase such
indebtedness or obligation, or to purchase or sell property or services,
primarily for the purpose of enabling the debtor to make payment of such
indebtedness or obligation or to guarantee the payment to the owner of such
indebtedness or obligation against loss, or to supply funds to or in any manner
invest in the debtor.
"Indemnified Party" shall have the meaning set forth in Section 5.3.
"Indemnifying Party" shall have the meaning set forth in Section 5.3.
"Intellectual Property" shall mean the rights to any patent,
trademark, copyright, service ▇▇▇▇, invention, software, software code, trade
secret, technology, product, composition, formula, method or process.
"Investments" shall mean, with respect to any Person, all advances,
loans or extensions of credit to any other Person (except for extensions of
credit to customers in the ordinary course of business), all purchases or
commitments to purchase any stock, bonds, notes, debentures or other securities
of any other Person, and any other investment in any other Person, including
partnerships or joint ventures (whether by capital contribution or otherwise) or
other similar arrangement (whether written or oral) with any Person, including,
but not limited to, arrangements in which (i) the first Person shares profits
and losses of the other Person, (ii) any such other Person has the right to
obligate or bind the first Person to any third party, or (iii) the first Person
may be wholly or partially liable for the debts or obligations of such
partnership, joint venture or other entity.
"Knowledge" shall mean, in the case of any Person who is an individual,
knowledge that a reasonable individual under similar circumstances would have
after such investigation and inquiry as such reasonable individual would under
such similar circumstances make, and in the case of a Person other than an
individual, the knowledge that a senior officer or director of such Person, or
any other Person having responsibility for the particular subject matter at
issue of such Person, would have after such investigation and inquiry as such
senior officer, director or responsible Person would under such similar
circumstances make.
"Law" and "Laws" shall mean any federal, state, local or foreign
statue, law, ordinance, regulation, rule, code, order or other requirement or
rule of law.
"Liabilities" shall have the meaning set forth in Section 3.14.
"Litigation" shall have the meaning set forth in Section 3.6.
"GLOBAL" shall have the meaning ascribed thereto in the preamble.
"GLOBAL Common Stock" shall have the meaning set forth in Section 3.11.
"GLOBAL Leased Property" shall have the meaning set forth in Section
3.15.
"Material Adverse Effect" shall mean any event or condition of any
character which has had or could reasonably be expected to have a material
adverse effect on the condition (financial or otherwise), results of operations,
assets, liabilities, properties, business or prospects of GLOBAL or QLINKS, as
applicable.
"Material GLOBAL Agreements" shall have the meaning set forth in
Section 3.20.
"QLINKS" shall mean Qlinks America, Inc., a Colorado Corporation.
"QLINKS Common Stock" shall mean the shares of QLINK's common stock, no
par value per share, held by each of the QLINKS Shareholders.
"QLINKS Shareholders" shall have the meaning ascribed thereto in the
preamble of this Agreement.
"Outstanding GLOBAL Common Stock" shall have the meaning set forth in
Section 3.11.
"Periodic Reports" shall have the meaning set forth in Section 3.13.
"Person" shall mean any natural person, corporation, unincorporated
organization, partnership, association, limited liability company, joint stock
company, joint venture, trust or government, or any agency or political
subdivision of any government or any other entity.
"Purchase Documents" shall have the meaning set forth in Section 3.2.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Subsidiary" of any Person shall mean any Person, whether or not
capitalized, in which such Person owns, directly or indirectly, an equity
interest of more than fifty percent (50%), or which may effectively be
controlled, directly or indirectly, by such Person.
"Tax" and "Taxes" shall mean (i) all income, excise, gross receipts, ad
valorem, sales, use, employment, franchise, profits, gains, property, transfer,
payroll, withholding, severance, occupation, social security, unemployment
compensation, alternative minimum, value added, intangibles or other taxes,
fees, stamp taxes, duties, charges, levies or assessments of any kind whatsoever
(whether payable directly or by withholding), together with any interest and any
penalties, fines, additions to tax or additional amounts imposed by any
Governmental Authority with respect thereto, (ii) any liability for the payment
of any amounts of the type described in (i) as a result of being a member of a
consolidated, combined, unitary or aggregate group for any Taxable period, and
(3) any liability for the payment of any amounts of the type described in (i) or
(ii) as a result of being a transferee or successor to any person or as a result
of any express or implied obligation to indemnify any other Person.
"Tax Returns" shall mean returns, declarations, reports, claims for
refund, information returns or other documents (including any related or
supporting schedules, statements or information) filed or required to be filed
in connection with the determination, assessment or collection of any Taxes of
any party or the administration of any laws, regulations or administrative
requirements relating to any Taxes.
"Termination Date" shall have the meaning set forth in Section 6.6.
"Transaction" shall have the meaning set forth in Section 2.1.
"Transaction Consideration" shall have the meaning set forth in Section
2.7(c).
The words "hereof," "herein" and "hereunder" and the words of similar
import shall refer to this Agreement as a whole and not to any particular
provision of this Agreement. The terms defined in the singular shall have a
comparable meaning when used in the plural and vice versa.
ARTICLE II
Transactions; Terms of Transaction; Manner of Converting Shares
2.1 Transaction. Subject to the terms and conditions of this Agreement,
at the Effective Time, ninety and six-tenth percent (90.6%) of the issued and
outstanding shares of GLOBAL Common Stock shall have been acquired by QLINKS in
accordance with the provisions of the Laws of the State of Colorado. QLINKS will
acquire as of closing hereof 8,646,712 shares of the outstanding shares of
GLOBAL Common Stock from ▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇ & Te ▇▇▇▇ ▇▇▇▇▇ for
Fifteen Thousand Dollars which consideration has previously been paid. to Rocky
Mountain Financial Network on behalf of the Sellers and Fifteen Thousand Dollars
will be paid by QLINKS to GLOBAL prior to closing as a purchase of 12,284,546
shares of Global common stock for those expenses listed in 7.3 Schedule. As a
result of these Purchase Transactions, QLINKS shall own 90.6% of shares of
GLOBAL and be the majority shareholder of GLOBAL. GLOBAL will then be merged
into QLINKS by a statutory merger and the shareholders of GLOBAL will own a
minority of shares of QLINKS and QLINKS shall continue to conduct its business
and operations and shall be the surviving company.
2.2 Time and Place of Closing. The closing of the transactions
contemplated hereby (the "Closing") will take place at 1:00 PM on the date that
the Effective Time occurs or at such other time as the parties, acting through
their authorized officers, may mutually agree. The Closing shall be held at the
offices of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, or at such
other location as may be mutually agreed upon by the parties.
2.3 Effective Time. The transactions contemplated by this Agreement
shall become effective on the date and at the time this document has been
executed by all parties (the "Effective Time"), and the transactions have been
approved by the Boards of Directors of the constituent companies, and the QLINKS
shareholders have approved the transactions.
2.4 Charter. The Certificate of Incorporation of QLINKS in effect
immediately prior to the Effective Time shall be the Certificate of
Incorporation of QLINKS until duly amended or repealed.
2.5 Bylaws. The Bylaws of QLINKS in effect immediately prior to the
Effective Time shall be the Bylaws of the Surviving Corporation until duly
amended or repealed.
2.6 Directors and Officers. The directors of QLINKS in office
immediately prior to the Effective Time, shall serve as the directors of QLINKS
from and after the Effective Time in accordance with the Bylaws of QLINKS. The
officers of QLINKS in office immediately prior to the Effective Time, together
with such additional Persons as may thereafter be elected, shall have been
appointed by the Board of Directors of QLINKS to serve as the officers of QLINKS
from and after the Effective Time in accordance with the Bylaws of the QLINKS.
2.7 Conversion of Shares. Subject to the provisions of this Article II,
at the Effective Time, by virtue of this Agreement and without any further
action on the part of GLOBAL, QLINKS or the stockholders of any of the
foregoing, QLINKS Common Stock shall be converted as follows:
Each share of GLOBAL Common Stock not owned by QLINKS issued and
outstanding immediately prior to the Effective Time shall be converted into
shares of QLINKS Common Stock (the "Consideration Shares"). The Consideration
Shares shall, upon delivery to the GLOBAL Shareholders in accordance with the
terms hereof, be fully paid, validly issued and non-assessable, but shall not be
registered securities under the Securities Act of 1933, as amended, (the
"Securities Act") pursuant to a valid exemption thereunder. The total number of
issued and outstanding shares of GLOBAL Common Stock not owned by QLINKS that
shall be converted into QLINKS Common Stock is 2,161,680 shares. The shares
shall be converted on a one-to-one basis (e.g., each share of GLOBAL Common
Stock shall be converted to a share of QLINKS Common Stock). Schedule 2.7 lists
the remaining shareholders and held shares to be converted.
Global shares owned by QLINKS at the effective date of this Agreement
shall not be converted in the merger but shall be deemed cancelled and retired.
2.8 Exchange of Certificates. After the Closing, the GLOBAL
Shareholders shall surrender each certificate or certificates which represented
shares of GLOBAL Common Stock converted by the merger immediately prior to the
Effective Time (the "Certificates") and shall promptly upon surrender thereof
receive in conversion therefore the number of whole Consideration Shares
issuable in respect of all shares of GLOBAL Common Stock held by such GLOBAL
Shareholder (rounded to the nearest share). QLINKS shall not be obligated to
deliver the Consideration Shares to which a GLOBAL Shareholder is entitled as a
result of the Transaction until such GLOBAL Shareholder surrenders its
Certificate or Certificates for conversion as provided in this Section 2.8. Any
other provision of this Agreement notwithstanding, QLINKS shall not be liable to
a GLOBAL Shareholder for any amounts paid or property delivered in good faith to
a public official pursuant to any applicable abandoned property, escheat or
similar law.
2.9 Rights of Former GLOBAL Shareholders. At the Effective Time, the
stock transfer books of GLOBAL shall be closed as to holders of GLOBAL Common
Stock immediately prior to the Effective Time and no transfer of GLOBAL Common
Stock by any such holder shall thereafter be made or recognized. Until
surrendered for exchange in accordance with the provisions of Section 2.8, each
Certificate theretofore representing shares of GLOBAL Common Stock shall from
and after the Effective Time represent for all purposes only the right to
receive the consideration provided in Section 2.7 in exchange therefore.
Whenever a dividend or other distribution is declared by QLINKS on the QLINKS
Common Stock, the record date for which is at or after the Effective Time, the
declaration shall include dividends or other distributions on all shares of
QLINKS Common Stock issuable pursuant to this Agreement, but no dividend or
other distribution payable to the holders of record of QLINKS Common Stock as of
any time subsequent to the Effective Time shall be delivered to the holder of
any Certificate until such holder surrenders such Certificate for exchange as
provided in Section 2.8. However, upon surrender of such Certificate, both the
QLINKS Common Stock certificate (together with all such undelivered dividends or
other distributions without interest) and any undelivered dividends payable in
respect thereof (without interest) shall be delivered and paid with respect to
the holder of each share represented by such Certificate.
2.10 Legending of Securities. Each certificate for QLINKS Common Stock
to be issued to the GLOBAL Shareholders as part of the Consideration Shares
shall bear substantially the following legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, OR ANY STATE SECURITIES LAWS. THESE SHARES
HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE OFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT UNDER SAID ACT OR LAWS, OR AN OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY THAT SUCH REGISTRATION IS NOT, IN THE CIRCUMSTANCES, REQUIRED UNDER SAID
ACT."
2.11 Fractional Shares. Notwithstanding any other provision of this
Agreement, if a GLOBAL Shareholder would otherwise have been entitled to receive
a fraction of a share of QLINKS Common Stock (after taking into account all
certificates delivered by the GLOBAL Shareholders), the number of shares
issuable to the GLOBAL Shareholder shall be rounded up to the next whole number,
provided that the total number of GLOBAL shares exchanged for QLINKS shares
shall not exceed 2,161,680 shares.
2.12 Lost, Stolen or Destroyed Certificates. In the event that any
Certificates shall have been lost, stolen or destroyed, upon the making of an
affidavit of that fact by such GLOBAL Shareholder (setting forth the number of
shares of GLOBAL Common Stock represented by such lost, stolen or destroyed
Certificates), GLOBAL shall issue such GLOBAL Shareholder the Consideration
Shares to which such QLINKS Shareholder is entitled.
ARTICLE III
Representations and Warranties of GLOBAL
In order to induce QLINKS and the QLINKS Shareholders to enter into
this Agreement and to consummate the transactions contemplated hereby, GLOBAL
makes the representations and warranties set forth below to QLINKS and the
QLINKS Shareholders.
3.1 Organization; Standing and Power. GLOBAL is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Colorado. GLOBAL has all requisite right, power and authority to execute,
deliver and perform this Agreement and the other Purchase Documents (as defined
below) and to consummate the transactions contemplated hereby and thereby.
GLOBAL has all corporate right, power and authority to own or lease and operate
its properties, and to conduct its business as presently conducted. GLOBAL is
duly qualified to transact business as a foreign corporation in all
jurisdictions where the ownership or leasing of its properties or the conduct of
its business requires such qualification.
3.2 Authorization; Enforceability. The execution, delivery and
performance of this Agreement by GLOBAL, and all other agreements to be
executed, delivered and performed by GLOBAL pursuant to this Agreement
(collectively, the "Purchase Documents") and the consummation by GLOBAL of the
transactions contemplated hereby and thereby have been duly authorized by all
requisite corporate or individual action on the part of GLOBAL as applicable.
This Agreement and the other Purchase Documents have been duly executed and
delivered by GLOBAL, and constitute the legal, valid and binding obligation of
GLOBAL, enforceable in accordance with their respective terms, except to the
extent that their enforcement is limited by bankruptcy, insolvency, Merger or
other laws relating to or affecting the enforcement of creditors' rights
generally and by general principles of equity. GLOBAL represents that this
authorization and enforceability includes its shareholders and that all
remaining shareholders will tender their 2,161,680 shares for exchange into
QLINKS shares, without dissent.
3.3 No Violation or Conflict. The execution, delivery and performance
of this Agreement and the other Purchase Documents by GLOBAL and the
consummation of the transactions contemplated hereby and thereby: (a) do not
violate or conflict with any provision of law or regulation (whether federal,
state or local), or any writ, order or decree of any court or governmental or
regulatory authority, or any provision of GLOBAL's Certificate of Incorporation
or Bylaws; and (b) do not and will not, with or without the passage of time or
the giving of notice, result in the breach of, or constitute a default (or an
event that with notice or lapse of time or both would become a default), cause
the acceleration of performance, give to others any right of termination,
amendment, acceleration or cancellation of or require any consent under, or
result in the creation of any lien, charge or encumbrance upon any property or
assets of GLOBAL pursuant to any instrument or agreement to which GLOBAL is a
party or by which GLOBAL or its properties may be bound or affected, other than
instruments or agreements as to which consent shall have been obtained at or
prior to the Closing, each of which instruments or agreements is listed in
Schedule 3.3 hereto.
3.4 Consents of Governmental Authorities and Others. No consent,
approval, order or authorization of, or registration, declaration, qualification
or filing with any federal, state or local governmental or regulatory authority,
or any other Person, is required to be made by GLOBAL in connection with the
execution, delivery or performance of this Agreement by GLOBAL, or the
consummation by GLOBAL of the transactions contemplated hereby.
3.5 Conduct of Business. Except as disclosed on Schedule 3.5 hereto,
since [December 31, 2005], GLOBAL has conducted its businesses in the ordinary
and usual course consistent with past practices and there has not occurred any
adverse change in the condition (financial or otherwise), results of operations,
properties, assets, liabilities, business or prospects of GLOBAL, and no such
change is threatened. Without limiting the generality of the foregoing, except
as disclosed on Schedule 3.6, since December 31, 2005, GLOBAL has not: (a)
amended its Articles of Incorporation or Bylaws (b) issued, sold or authorized
for issuance or sale, shares of any class of its securities (including, but not
limited to, by way of stock split or dividend) or any subscriptions, options,
warrants, rights or convertible securities or entered into any agreements or
commitments of any character obligating it to issue or sell any such securities;
(c) redeemed, purchased or otherwise acquired, directly or indirectly, any
shares of its capital stock or any option, warrant or other right to purchase or
acquire any such capital stock; (d) suffered any damage, destruction or loss,
whether or not covered by insurance, which has had or could reasonably be
expected to have a Material Adverse Effect on any of its properties, assets,
business or prospects; (e) granted or made any mortgage or pledge or subjected
itself or any of its properties or assets to any lien, charge or encumbrance of
any kind; (f) made or committed to make any capital expenditures in excess of
$10,000; (g) become subject to any Guaranty; (h) granted any increase in the
compensation payable or to become payable to directors, officers or employees
(including, without limitation, any such increase pursuant to any severance
package, bonus, pension, profit-sharing or other plan or commitment); (i)
entered into any agreement which would be an GLOBAL Material Agreement, or
amended or terminated any existing GLOBAL Material Agreement; (j) been named as
a party in any Litigation, or become the focus of any investigation by any
government or regulatory agency or authority; (k) declared or paid any dividend
or other distribution with respect to its capital stock; or (l) experienced any
other event or condition of any character which has had or to GLOBAL's
Knowledge, could reasonably be expected to have a Material Adverse Effect on
GLOBAL.
3.6 Litigation. There are no actions, suits, investigations, claims or
proceedings ("Litigation") pending or, to the Knowledge of GLOBAL, threatened
before any court or by or before any governmental or regulatory authority or
arbitrator, (a) affecting GLOBAL (as plaintiff or defendant) or (b) against
GLOBAL relating to GLOBAL's Common Stock or the transactions contemplated by
this Agreement and/or the other Purchase Documents and there exist no facts or
circumstances to the Knowledge of GLOBAL creating any reasonable basis for the
institution of any Litigation against GLOBAL.
3.7 Brokers. Neither of GLOBAL, nor QLINKS has employed any broker or
finder, and none of them has incurred or will incur, directly or indirectly, any
broker's, finder's, investment banking or similar fees, commissions or expenses
in connection with the transactions contemplated by this Agreement.
3.8 Compliance. GLOBAL is in compliance with all federal, state, local
and foreign laws, ordinances, regulations, judgments, rulings, orders and other
requirements applicable to GLOBAL and its respective assets and properties,
including, without limitation, those relating to the registration and sale of
the GLOBAL Common Stock. GLOBAL is not subject to any judicial, governmental or
administrative inquiry, investigation, order, judgment or decree.
3.9 Charter, Bylaws and Corporate Records. A true, correct and complete
copy of (a) the Articles of Incorporation of GLOBAL as amended and in effect on
the date hereof, (b) the Bylaws of GLOBAL, as amended and in effect on the date
hereof, and (c) the minute books of GLOBAL (containing all corporate proceedings
from the date of incorporation) have been furnished to QLINKS. Such minute books
contain accurate records of all meetings and other corporate actions of the
board of directors, committees of the board of directors, incorporators and
shareholders of GLOBAL from the date of its incorporation to the date hereof
which were memorialized in writing. No actions have been taken since the date of
GLOBAL incorporation that are not memorialized in writing.
3.10 Subsidiaries and Investments. Except as described on Schedule 3.10,
QLINKS has no Subsidiaries or Investments.
3.11 Capitalization. The authorized capital of stock of GLOBAL consists
of 50,000,000 shares of common stock, of which 23,089,946 shares will be issued
and outstanding (the "Outstanding GLOBAL Common Stock") at the closing to this
transaction. All shares of Outstanding GLOBAL Common Stock have been duly
authorized, are validly issued and outstanding, and are fully paid and
non-assessable. No securities issued by GLOBAL from the date of its
incorporation to the date hereof were issued in violation of any statutory,
contractual or common law preemptive rights. There are no dividends which have
accrued or been declared but are unpaid on the capital stock of GLOBAL. All
taxes required to be paid in connection with the issuance and any transfers of
GLOBAL's capital stock have been paid. All permits or authorizations required to
be obtained from or registrations required to be effected with any Person in
connection with any and all issuances of securities of GLOBAL from the date of
GLOBAL's incorporation to the date hereof have been obtained or effected and all
securities of GLOBAL have been issued and are held in accordance with the
provisions of all applicable
securities or other laws. The Outstanding GLOBAL Common Stock constitutes one
hundred percent (100%) of the issued and outstanding capital stock of GLOBAL.
The Consideration Shares shall, upon issuance and delivery to the QLINKS
Shareholders in accordance with the terms hereof, be fully paid, validly issued
and non-assessable, but shall not be registered securities under the Securities
Act of 1933. There are no registration rights outstanding that relate to the
Outstanding GLOBAL Common Stock and, to the Knowledge of GLOBAL, there are no
voting trusts, proxies or other agreements or understandings with respect to any
equity security of any class of securities of GLOBAL.
3.12 Rights, Warrants, Options. There are no outstanding (a) securities
or instruments convertible into or exercisable for any of the capital stock or
other equity interests of GLOBAL; (b) options, warrants, subscriptions, puts,
calls, or other rights to acquire capital stock or other equity interests of
GLOBAL; or (c) commitments, agreements or understandings of any kind, including
employee benefit arrangements, relating to the issuance or repurchase by GLOBAL
of any capital stock or other equity interests of GLOBAL, or any instruments
convertible or exercisable for any such securities or any options, warrants or
rights to acquire such securities.
3.13 Commission Filings and Financial Statements. All of the periodic
reports of GLOBAL required to satisfy the information requirements of Section 13
of the Exchange Act have been filed with the Commission (the "Periodic
Reports"), have been true, accurate and complete in all material respects and
have been filed in compliance with the requirements of the Exchange Act. The
Financial Statements of GLOBAL: (a) have been prepared in accordance with the
books of account and records of GLOBAL; (b) fairly present, and are true,
correct and complete statements in all material respects of GLOBAL's financial
condition and the results of its operations at the dates and for the periods
specified in those statements; and (c) have been prepared in accordance with
United States generally accepted accounting principles ("GAAP") consistently
applied with prior periods, except as specified in Schedule 3.13.
3.14 Absence of Undisclosed Liabilities. Other than as disclosed by the
Periodic Reports, the Financial Statements of GLOBAL or as disclosed on Schedule
3.14, GLOBAL does not have any direct or indirect indebtedness, liability,
claim, loss, damage, deficiency, obligation or responsibility, known or unknown,
fixed or unfixed, ▇▇▇▇▇▇ or inchoate, liquidated or unliquidated, secured or
unsecured, accrued, absolute, contingent or otherwise, including, without
limitation, liabilities on account of taxes, other governmental charges or
Litigation, whether or not of a kind required by GAAP to be set forth on a
financial statement ("Liabilities"). Except as listed on Schedule 3.14, GLOBAL
does not have any Liabilities other than Liabilities fully and adequately
reflected in the Periodic Reports or the Financial Statements of GLOBAL. GLOBAL
has no Knowledge of any circumstances, conditions, events or arrangements which
may hereafter give rise to any Liabilities of GLOBAL, except as set forth on
Schedule 3.14.
3.15 Real Property, Leased Property and Mineral Leases. Schedule 3.15
contains a true and complete list of all of the GLOBAL Leases. GLOBAL does not
own any fee simple interest in any real property nor does it have any mineral
leases.
3.16 List of Accounts and Proxies. Set forth on Schedule 3.16 is: (a)
the name and address of each bank or other institution in which GLOBAL maintains
an account (cash, securities or other) or safe deposit box; (b) the name and
phone number of GLOBAL's contact person at such bank or institution; (c) the
account number of the relevant account and a description of the type of account;
(d) the name of each person authorized by GLOBAL to effect transactions
therewith or to have access to any safe deposit box or vault; and (e) all
proxies, powers of attorney or other like instruments to act on behalf of GLOBAL
in matters concerning its business or affairs.
3.17 Personnel. Schedule 3.17 contains the names and annual salary
rates and other compensation of all officers, directors, consultants and
employees of GLOBAL (including compensation paid or payable by GLOBAL under any
employee benefit or option plans). There are no employee policies, employee
manuals or other written statements of rules or policies as to working
conditions, vacation and sick leave.
3.18 Employment Agreements and Employee Benefit Plans. GLOBAL has not
had any and does not have any defined contribution plan and it is not (and was
never) part of a controlled group contributing to any defined contribution plan
and is not and was never a party to any collective bargaining agreement or other
employment contracts. GLOBAL has not, nor does it now contribute to any pension,
profit-sharing, option, other incentive plan, or any other type of Employee
Benefit Plan (as defined in Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA")), or any health, dental, vision,
long-term disability, short-term disability, life insurance or other welfare
benefits plan, or have any obligation to or customary arrangement with employees
for bonuses, incentive compensation, vacations, severance pay, insurance, or
other benefits, and it is not now (and was never) a part of a controlled group
with regard to any of the foregoing. Schedule 3.17 also contains a true and
correct statement of the names, relationship with GLOBAL, present rates of
compensation (whether in the form of salary, bonuses, commissions, or other
supplemental compensation now or hereafter payable), and aggregate compensation
for the fiscal year ended December 31, 2004 of each director, officer,
consultant or employee of GLOBAL. Except as set forth on Schedule 3.17, since
December 31, 2004, GLOBAL has not changed the rate of compensation of any of its
directors, officers, consultants or employees, and GLOBAL will not be required
to make any severance payments to any of its directors, officers, consultants or
employees as a result of the Transaction.
There are no complaints, charges, claims, allegations,
grievances, or litigations pending or threatened which reflect or pertain to:
(i) any federal, state or local labor, employment, anti-discrimination, workers
compensation, disability or unemployment law, regulation or ordinance; (ii) any
claim for wrongful discharge, harassment, discrimination, breach of employment
contract or employment-related tort; or (iii) any employment agreement,
restrictive covenant, non-competition agreement or employee confidentiality
agreement.
3.19 Taxes.
(a) GLOBAL has properly prepared and timely filed all Tax Returns (as
defined below) relating to any and all Taxes (as defined below) concerning or
attributable to it or its operations for any period ending on or before the
Closing Date and such Tax Returns are true, correct and complete in all material
respects and have been completed in accordance with applicable Laws (as defined
below).
(b) All Taxes (whether or not shown on any Tax Return) payable by
GLOBAL have been fully and timely paid. The cash reserves or accruals for Taxes
provided in the books and records of GLOBAL with respect to any period for which
Tax Returns have not yet been filed or for which Taxes are not yet due and owing
have been established in accordance with GAAP and are, or prior to the Closing
Date, will be, sufficient for all unpaid Taxes of GLOBAL through and including
the Closing Date (including, without limitation, with respect to any Taxes
resulting from the transactions contemplated by this Agreement).
(c) Neither GLOBAL nor any Person on behalf of or with respect to
GLOBAL has executed or filed any agreements or waivers extending any statute of
limitations on or extending the period for the assessment or collection of any
Tax. No power of attorney on behalf of GLOBAL with respect to any Tax matter is
currently in force.
(d) GLOBAL is not a party to any Tax-sharing agreement or similar
arrangement with any other party (whether or not written), and GLOBAL has not
assumed any Tax obligations of, or with respect to any transaction relating to,
any other Person or agreed to indemnify any other Person with respect to any
Tax.
(e) No Tax Return concerning or relating to GLOBAL or its operations
has ever been audited by a government or taxing authority, nor is any such audit
in process or pending, and GLOBAL has not been notified of any request for such
an audit or other examination. No claim has been made by any taxing authority in
any jurisdiction where Tax Returns concerning or relating to GLOBAL or its
operations have not been filed where GLOBAL is or may be subject to taxation by
that jurisdiction.
(f) GLOBAL has never been included in any consolidated, combined, or
unitary Tax Return.
(g) GLOBAL has complied in all material respects with all applicable
Laws relating to the payment and withholding of Taxes and has duly and timely
withheld from employee salaries, wages and other compensation and has paid over
to the appropriate taxing authorities all amounts required to be so withheld and
paid over for all periods under all applicable laws.
(h) Neither GLOBAL nor any other Person on behalf of and with respect
to GLOBAL has (i) agreed to or is required to make any adjustments pursuant to
Section 481(a) of the Internal Revenue Code of 1986 (the "Code") or any similar
provision of state, local or foreign law by reason of a change in accounting
method initiated by GLOBAL, and GLOBAL has no Knowledge that the Internal
Revenue Service ("IRS") has proposed any such adjustment or change in accounting
method, or has any application pending with any taxing authority requesting
permission for any changes in accounting methods that relate to the business or
operations of GLOBAL, (ii) executed or entered into a closing agreement pursuant
to Section 7121 of the Code or any predecessor provision thereof or any similar
provision of state, local or foreign law with respect to GLOBAL or (iii)
requested any extension of time within which to file any Tax Return concerning
or relating to GLOBAL or its operations, which Tax Return has since not been
filed.
(i) No property owned by GLOBAL is (i) property required to be treated
as being owned by another Person pursuant to the provisions of Section 168(f)(8)
of the Internal Revenue Code of 1954, as amended and in effect immediately prior
to the enactment of the Tax Reform Act of 1986, (ii) constitutes "tax-exempt use
property" within the meaning of Section 168(h)(1) of the Code or (iii) is
"tax-exempt bond financed property" within the meaning of Section 168(g) of the
Code.
(j) GLOBAL is not subject to any private letter ruling of the IRS or
comparable rulings of other taxing authorities.
(k) GLOBAL does not own any interest in any entity that is treated as a
partnership for U.S. federal income Tax purposes or would be treated as a
pass-through or disregarded entity for any Tax purpose.
(l) GLOBAL has not constituted either a "distributing corporation" or a
"controlled corporation" within the meaning of Section 355(a)(1)(A) of the Code
in a distribution qualifying for tax-free treatment under Section 355 of the
Code (i) in the two years prior to the date of this Agreement or (ii) in a
distribution that could otherwise constitute part of a "plan" or "series of
transactions" (within the meaning of Section 355(e) of the Code) in conjunction
with this Agreement.
(m) GLOBAL has no elections in effect for U.S. federal income Tax
purposes under Sections 108, 168, 441, 472, 1017, 1033 or 4977 of the Code.
3.20 Material Agreements. Schedule 3.20 sets forth a brief description
of all material written and oral contracts or agreements relating to GLOBAL
including any GLOBAL Leases, which are set forth on Schedule 3.15, which are
hereby incorporated by reference into Schedule 3.20 and made a part thereof),
including without limitation any: (i) contract resulting in a commitment or
potential commitment for expenditure or other obligation or potential
obligation, or which provides for the receipt or potential receipt, involving in
excess of Ten Thousand Dollars ($10,000.00) in any instance, or series of
related contracts that in the aggregate give rise to rights or obligations
exceeding such amount; (ii) indenture, mortgage, promissory note, loan
agreement, guarantee or other agreement or commitment for the borrowing or
lending of money or encumbrance of assets involving more than Ten Thousand
Dollars ($10,000.00) in each instance; (iii) agreement which restricts GLOBAL;
from engaging in any line of business or from competing with any other Person;
or (iv) any other contract, agreement, instrument, arrangement or commitment
that is material to the condition (financial or otherwise), results of
operation, assets, properties, liabilities, business or prospects of GLOBAL
(collectively, and together with the GLOBAL Leases, employment agreements,
Employee Benefit Plans and all other agreements required to be disclosed on any
Schedule to this Agreement, the "Material GLOBAL Agreements"). GLOBAL has
previously furnished to QLINKS true, complete and correct copies of all written
agreements, as amended, required to be listed on Schedule 3.20.
Except as set forth on Schedule 3.20, none of the Material
GLOBAL Agreements was entered into outside the ordinary course of business of
GLOBAL, or contains any provisions that will impair or adversely affect the
operations and/or financial condition of GLOBAL. The Material GLOBAL Agreements
are each in full force and effect and are the valid and legally binding
obligations of GLOBAL and, to the Knowledge of GLOBAL, the other parties
thereto. GLOBAL has not received notice of default by GLOBAL under any of the
Material GLOBAL Agreements. GLOBAL has not received notice of any pending or
threatened Litigation relating to any of the Material GLOBAL Agreements.
3.21 Guaranties. Except as set forth on Schedule 3.21, GLOBAL is not a
party to any Guaranty, and no Person is a party to any Guaranty for the benefit
of GLOBAL.
3.22 Environmental Matters. Property used by GLOBAL presently or in the
past has not been used to manufacture, treat, store, or dispose of any hazardous
substance and such property is free of all such substances such that the
condition of the property is in compliance with applicable Environmental Laws
(as defined below). As for it has become aware, GLOBAL is in compliance with all
laws, regulations and other federal, state or local governmental requirements,
and all applicable judgments, orders, writs, notices, decrees, permits,
licenses, approvals, consents or injunctions relating to the generation,
management, handling, transportation, treatment, disposal, storage, delivery,
discharge, release or emission of any waste, pollutant or toxic or hazardous
substance (including, without limitation, asbestos, radioactive material and
pesticides) (the "Environmental Laws") applicable to GLOBAL or its business as a
result of any hazardous substance utilized by GLOBAL in its business or
otherwise placed at any of the facilities owned, leased or operated by GLOBAL,
or in which GLOBAL has a contractual interest. Neither GLOBAL (or its directors
or officers), has received any complaint, notice, order, or citation of any
actual, threatened or alleged noncompliance by GLOBAL with any Environmental
Laws, and there is no Litigation pending or threatened against GLOBAL, or any
director or officer of GLOBAL, with respect to any violation or alleged
violation of the Environmental Laws, and there is no reasonable basis for the
institution of any such Litigation.
3.23 Absence of Certain Business Practices. None of the GLOBAL's
employees, nor GLOBAL, nor any Affiliates thereof nor, to the Knowledge of each,
any other Person acting on behalf of GLOBAL has with respect to the business or
activities of GLOBAL: (a) received, directly or indirectly, any rebates,
payments, commissions, promotional allowances or any other economic benefits,
regardless of their nature or type, from any customer, supplier, trading
company, shipping company, governmental employee or other Person with whom
GLOBAL has done business directly or indirectly; or (b) directly or indirectly,
given or agreed to give any gift or similar benefit to any customer, supplier,
trading company, shipping company, governmental employee or other Person who is
or may be in a position to help or hinder the business of GLOBAL (or assist
GLOBAL in connection with any actual or proposed transaction) which (i) may
subject GLOBAL to any material damage or any penalty in any Litigation, (ii) if
not given in the past, may have had a Material Adverse Effect on the assets,
business or operations of GLOBAL as reflected in the Periodic Reports or
Financial Statements of GLOBAL or (iii) if not continued in the future, may
materially adversely affect the assets, business or operations of GLOBAL or
subject GLOBAL to suit or penalty in any private or governmental litigation or
proceeding.
3.24 Disclosure. No representation or warranty of GLOBAL contained in
this Agreement, and no statement, report, or certificate furnished by or on
behalf of GLOBAL to QLINKS or its agents pursuant hereto or in connection with
the transactions contemplated hereby, contains any untrue statement of a
material fact or omits to state a material fact necessary in order to make the
statements contained herein or therein not misleading or omits or will omit to
state a material fact necessary in order to provide QLINKS and the QLINKS
Shareholders with full and proper information as to the business, financial
condition, assets, liabilities, results of operation and/or prospects of GLOBAL
and the value of its business and properties.
ARTICLE IV
Representations and Warranties of QLINKS
In order to induce GLOBAL to enter into this Agreement and to
consummate the transactions contemplated hereby, QLINKS makes the
representations and warranties set forth below to GLOBAL.
4.1 Organization. QLINKS is a Corporation duly organized, validly
existing and in good standing under the laws of the State of Colorado. QLINKS is
duly qualified to transact business as a foreign corporation in all
jurisdictions where the ownership or leasing of its properties or the conduct of
its business requires such qualification, except where the failure to so qualify
would not have a Material Adverse Effect on QLINKS. QLINKS has the requisite
power and authority to (a) own or lease and operate its properties and (b)
conduct its business as presently conducted.
4.2 Authorization; Enforceability. QLINKS has the capacity to execute,
deliver and perform this Agreement. This Agreement and all other documents
executed and delivered by QLINKS pursuant to this Agreement have been duly
executed and delivered and constitute the legal, valid and binding obligations
of QLINKS, assuming the due authorization, execution and delivery of this
Agreement by GLOBAL, enforceable in accordance with their respective terms,
except to the extent that their enforcement is limited by bankruptcy,
insolvency, Merger or other laws relating to or affecting the enforcement of
creditors' rights generally and by general principals of equity. QLINKS Board
and Shareholders have voted to authorize this Agreement and Plan of Merger and
the Shareholders have authorized the QLINKS Board to prepare, finalize, and sign
the Agreement of Merger.
4.3 No Violation or Conflict. The execution, delivery and performance
of this Agreement and the other Purchase Documents by QLINKS, and the
consummation by QLINKS of the transactions contemplated hereby: (a) do not
violate or conflict with any provision of law or regulation (whether federal,
state or local), or any writ, order or decree of any court or governmental or
regulatory authority, or any provision of QLINK'S Certificate of Incorporation
or Bylaws; and (b) except as set forth on Schedule 4.3 hereto, do not, with or
without the passage of time or the giving of notice, result in the breach of, or
constitute a default, cause the acceleration of performance or require any
consent under, or result in the creation of any lien, charge or encumbrance upon
any property or assets of QLINKS pursuant to any instrument or agreement to
which QLINKS is a party or by which QLINKS or its properties may be bound or
affected, other than instruments or agreements as to which consent shall have
been obtained at or prior to the Closing, each of which instruments or
agreements is listed in Schedule 4.3 hereto.
4.4 Consents of Governmental Authorities and Others. No consent,
approval or authorization of, or registration, qualification or filing with any
federal, state or local governmental or regulatory authority, or any other
Person, is required to be made by QLINKS in connection with the execution,
delivery or performance of this Agreement by QLINKS or the consummation by
QLINKS of the transactions contemplated hereby, excluding the execution,
delivery and performance of this Agreement by QLINKS.
4.5 Brokers. QLINKS has not employed any broker or finder, and has not
incurred and will not incur any broker's, finder's, investment banking or
similar fees, commissions or expenses in connection with the transactions
contemplated by this Agreement.
4.6 Charter Records. A true, correct and complete copy of the Certificate
of Incorporation and Bylaws of QLINKS, as amended and in effect on the date
hereof, have been furnished to GLOBAL.
4.7 Subsidiaries and Investments. Except as described on Schedule 4.7,
QLINKS has no Subsidiaries or Investments.
4.8 Capitalization. The authorized capital stock of QLINKS consists of
30,000,000 shares of common stock, (the "QLINKS Common Stock") of which
14,350,000 shares are issued and outstanding (the "Outstanding QLINKS Common
Stock"). As of the Closing Date, the Outstanding QLINKS Common Stock shall
constitute one hundred percent (100%) of the issued and outstanding capital
stock of QLINKS. All of the Outstanding QLINKS Common Stock will have been duly
authorized, is validly issued and outstanding, and is fully paid and
non-assessable. No securities issued by QLINKS from the date of its
incorporation to the date hereof were issued in violation of any statutory or
common law preemptive rights. All taxes required to be paid in connection with
the issuance and any transfers of QLINKS Common Stock has been paid. All permits
or authorizations required to be obtained from or registrations required to be
effected with any Person in connection with any and all issuances of securities
of QLINKS from the date of its incorporation to the date hereof have been
obtained or effected and all securities of QLINKS have been issued and are held
in accordance with the provisions of all applicable securities or other laws.
4.9 Rights, Warrants, Options. There are no outstanding (a) securities
or instruments convertible into or exercisable for any of the capital stock or
other equity interests of QLINKS; (b) options, warrants, subscriptions or other
rights to acquire capital stock or other equity interests of QLINKS; or (c)
commitments, agreements or understandings of any kind, including employee
benefit arrangements, relating to the issuance or repurchase by QLINKS of any
capital stock or other equity interests of QLINKS, or any instruments
convertible or exercisable for any such securities or any options, warrants or
rights to acquire such securities, except as listed on Schedule 4.9 hereto.
ARTICLE V
Additional Agreements
5.1 Survival of the Representations and Warranties. The representations
and warranties contained in Sections 3.1, 3.2, 3.3, 3.4, 3.12, 3.13 and 3.14 and
the covenants in Sections 7.1 and 7.3 shall survive the Closing and remain in
effect indefinitely. The representations and warranties contained in Section
3.23 (relating to environmental matters) shall survive the Closing until the
expiration of two (2) years from the Closing Date. The representations and
warranties contained in Section 3.20 (relating to taxes) shall survive the
Closing until the later of the expiration of twenty four (24) months from the
Closing Date or the expiration of the last day of the statute of limitations
applicable to any action against GLOBAL based upon the non-payment of taxes, or
other violation of the Code, which occurred prior to the Closing Date. Except as
set forth above, the representations and warranties and covenants of GLOBAL
contained in this Agreement shall survive the Closing until the expiration of
twenty-four (24) months from the Closing Date. No claim for indemnity with
respect to breaches of representations and warranties may be brought by any
party hereto, other than a claim for fraud or intentional misrepresentation,
after expiration of the applicable survival period therefore as set forth in
this Section 5.1.
5.2 Investigation. The representations, warranties, covenants and
agreements set forth in this Agreement shall not be affected or diminished in
any way by any investigation (or failure to investigate) at any time by or on
behalf of the party for whose benefit such representations, warranties,
covenants and agreements were made. All statements contained herein or in any
schedule, certificate, exhibit, list or other Purchase Document required to be
delivered pursuant hereto, shall be deemed to be representations and warranties
for purposes of this Agreement; provided, that any knowledge or materiality
qualifications contained herein shall be applicable to such other documents.
5.3 Indemnity Procedure. A party or parties hereto agreeing to be
responsible for or to indemnify against any matter pursuant to this Agreement is
referred to herein as the "Indemnifying Party" and the other party or parties
claiming indemnity is referred to as the "Indemnified Party."
(a) An Indemnified Party under this Agreement shall, with respect to claims
asserted against such party by any third party, give written notice to the
Indemnifying Party of any liability which might give rise to a claim for
indemnity under this Agreement within sixty (60) business days of the receipt of
any written claim from any such third party, but not later than twenty (20) days
prior to the date any answer or responsive pleading is due, and with respect to
other matters for which the Indemnified Party may seek indemnification, give
prompt written notice to the Indemnifying Party of any liability which might
give rise to a claim for indemnity; provided, however, that any failure to give
such notice will not waive any rights of the Indemnified Party except to the
extent the rights of the Indemnifying Party are materially prejudiced.
(b) The Indemnifying Party shall have the right, at its election, to take over
the defense or settlement of such claim by giving written notice to the
Indemnified Party at least fifteen (15) days prior to the time when an answer or
other responsive pleading or notice with respect thereto is required. If the
Indemnifying Party makes such election, it may conduct the defense of such claim
through counsel of its choosing (subject to the Indemnified Party's approval of
such counsel, which approval shall not be unreasonably withheld), shall be
solely responsible for the expenses of such defense and shall be bound by the
results of its defense or settlement of the claim. The Indemnifying Party shall
not settle any such claim without prior notice to and consultation with the
Indemnified Party, and no such settlement involving any equitable relief or
which might have an adverse effect on the Indemnified Party may be agreed to
without the written consent of the Indemnified Party (which consent shall not be
unreasonably withheld). So long as the Indemnifying Party is diligently
contesting any such claim in good faith, the Indemnified Party may pay or settle
such claim only at its own expense and the Indemnifying Party will not be
responsible for the fees of separate legal counsel to the Indemnified Party,
unless the named parties to any proceeding include both parties and
representation of both parties by the same counsel would be inappropriate. If
the Indemnifying Party does not make such election, or having made such election
does not, in the reasonable opinion of the Indemnified Party proceed diligently
to defend such claim, then the Indemnified Party may (after written notice to
the Indemnifying Party), at the expense of the Indemnifying Party, elect to take
over the defense of and proceed to handle such claim in its discretion and the
Indemnifying Party shall be bound by any defense or settlement that the
Indemnified Party may make in good faith with respect to such claim. In
connection therewith, the Indemnifying Party will fully cooperate with the
Indemnified Party should the Indemnified Party elect to take over the defense of
any such claim.
(c) The parties agree to cooperate in defending such third party claims and the
Indemnified Party shall provide such cooperation and such access to its books,
records and properties as the Indemnifying Party shall reasonably request with
respect to any matter for which indemnification is sought hereunder; and the
parties hereto agree to cooperate with each other in order to ensure the proper
and adequate defense thereof.
With regard to claims of third parties for which indemnification is
payable hereunder, such indemnification shall be paid by the Indemnifying Party
upon the earlier to occur of: (i) the entry of a judgment against the
Indemnified Party and the expiration of any applicable appeal period, or if
earlier, five (5) days prior to the date that the judgment creditor has the
right to execute the judgment; (ii) the entry of an unappealable judgment or
final appellate decision against the Indemnified Party; or (iii) a settlement of
the claim. Notwithstanding the foregoing, provided that there is no dispute as
to the applicability of indemnification, the reasonable expenses of counsel to
the Indemnified Party shall be reimbursed on a current basis by the Indemnifying
Party if such expenses are a liability of the Indemnifying Party. With regard to
other claims for which indemnification is payable hereunder, such
indemnification shall be paid promptly by the Indemnifying Party upon demand by
the Indemnified Party.
ARTICLE VI
Closing; Deliveries; Conditions Precedent
6.1 Closing; Effective Date. All proceedings taken and all documents
executed at the Closing shall be deemed to have been taken, delivered and
executed simultaneously, and no proceeding shall be deemed taken nor documents
deemed executed or delivered until all have been taken, delivered and executed.
6.2 Deliveries
(a) At Closing, GLOBAL shall deliver the following documents to QLINKS:
(1) the written resignation of all GLOBAL directors and officers from all
of their positions as GLOBAL or officers, all to be effective upon
Closing, or upon mailing of the 14f Notice to Shareholders as may be
required;
(2) the minute books of GLOBAL, including its corporate seals, unissued
stock certificates, stock registers, Articles of Incorporation, Bylaws
and corporate minutes approving the terms and conditions of this
Agreement and the other documents contemplated hereby and the
transactions contemplated hereby and thereby;
(3) certificates issued by the Secretary of State of Colorado, as of a
recent date, as to the good standing of GLOBAL in its jurisdiction of
incorporation and certifying its Certificate of Incorporation;
(4) a certificate, dated the Closing Date, executed by the Secretary of
GLOBAL setting forth (i) that authorizing resolutions (attached as an
exhibit thereto) were adopted by GLOBAL's Boards of Directors and its
shareholders, approving the terms and conditions of this Agreement and
the other Purchase Documents contemplated hereby and the transactions
contemplated hereby and thereby and that such resolutions are in full
force and effect as of the Closing and have not be modified, amended
or otherwise altered as of the Closing, (ii) that GLOBAL's Certificate
of Incorporation and Bylaws (attached as exhibits thereto) are in full
force and effect as of the Closing in the attached forms and have not
been modified, amended or otherwise altered as of the Closing;
(5) the consents of any third party including, but not limited to, parties
to any of the Material GLOBAL Agreements whose consent is required
under the terms of any such Material GLOBAL Agreement or otherwise;
(6) the certificates referred to in Section 6.3(d);
(7) the favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq., counsel to GLOBAL,
dated the Closing Date, addressed to QLINKS; and
(8) such other documents and instruments as QLINKS may reasonably request.
(b) At Closing, QLINKS shall deliver the following documents to GLOBAL:
(1) a certificate of the Secretary of State of the State of Colorado, as
of a recent date, as to the good standing of QLINKS and certifying its
Certificate of Incorporation;
(2) a certificate, dated the Closing Date, of an officer of QLINKS setting
forth that authorizing resolutions were adopted by QLINK'S Board of
Directors, approving the terms and conditions of this Agreement and
the other documents contemplated hereby and the transactions
contemplated hereby and thereby;
(3) the certificates referred to in Section 6.4(d);
6.3 Conditions Precedent to the Obligations of QLINKS. Each and every
obligation of QLINKS to consummate the transactions described in this Agreement
and any and all liability of QLINKS to GLOBAL shall be subject to the
fulfillment on or before the Closing Date of the following conditions precedent:
(a) Representations and Warranties True. Each of the
representations and warranties of GLOBAL, contained herein or in any certificate
or other document delivered pursuant to this Agreement or in connection with the
transactions contemplated hereby shall be true and correct in all material
respects as of the Closing Date with the same force and effect as though made on
and as of such date.
(b) Performance. GLOBAL shall have performed and complied in all
material respects with all of the agreements, covenants and obligations required
under this Agreement to be performed or complied with by them on or prior to the
Closing Date.
(c) No Material Adverse Change. Except as expressly permitted or
contemplated by this Agreement, no event or condition shall have occurred which
has adversely affected or may adversely affect in any respect the condition
(financial or otherwise) of GLOBAL.
(d) GLOBAL's Certificate. GLOBAL shall have delivered to QLINKS a
certificate dated the Closing Date, executed by the President of GLOBAL and the
Secretary of GLOBAL (for purposes of attesting to the President's incumbency),
certifying that the conditions specified in Section 6.3(a), (b) and (c) above
have been fulfilled and as to such other matters as QLINKS may reasonably
request.
(e) No Litigation. No litigation, arbitration or other legal or
administrative proceeding shall have been commenced or be pending by or before
any court, arbitration panel or governmental authority or official, and no
statute, rule or regulation of any foreign or domestic, national or local
government or agency thereof shall have been enacted after the date of this
Agreement, and no judicial or administrative decision shall have been rendered
which enjoins or prohibits, or seeks to enjoin or prohibit, the consummation of
all or any of the transactions contemplated by this Agreement.
(f) Consents. GLOBAL shall have obtained all authorizations,
consents, waivers and approvals as may be required to consummate the
transactions contemplated by this Agreement including, but not limited to, those
with respect to any Material GLOBAL Agreement.
(g) No GLOBAL Options or Warrants Outstanding. On the Closing Date
there shall be no options, warrants or other securities convertible into or
exercisable for GLOBAL Common Stock outstanding.
(h) Opinion of Counsel. GLOBAL shall have obtained an opinion
letter from counsel to GLOBAL addressed to QLINKS in form and substance
reasonably acceptable to QLINKS and its counsel, and such opinion shall not have
been withdrawn.
6.4 Conditions Precedent to the Obligations of GLOBAL. Each and every
obligation of GLOBAL to consummate the transactions described in this Agreement
and any and all liability of GLOBAL to QLINKS shall be subject to the
fulfillment on or before the Closing Date of the following conditions precedent:
(a) Representations and Warranties True. Each of the
representations and warranties of QLINKS contained herein or in any certificate
or other document delivered pursuant to this Agreement or in connection with the
transactions contemplated hereby shall be true and correct in all material
respects as of the Closing Date with the same force and effect as though made on
and as of such date.
(b) Performance. QLINKS shall have performed and complied in all
material respects with all of the agreements, covenants and obligations required
under this Agreement to be performed or complied with by it on or prior to the
Closing Date.
(c) QLINK'S Certificate. QLINKS shall have delivered to GLOBAL, a
certificate addressed to GLOBAL, dated the Closing Date, certifying that the
conditions specified in Sections 6.4(a), and (b) above have been fulfilled.
(d) No Litigation. No litigation, arbitration or other legal or
administrative proceeding shall have been commenced or be pending by or before
any court, arbitration panel or governmental authority or official, and no
statute, rule or regulation of any foreign or domestic, national or local
government or agency thereof shall have been enacted after the date of this
Agreement, and no judicial or administrative decision shall have been rendered
which enjoins or prohibits, or seeks to enjoin or prohibit, the consummation of
all or any of the transactions contemplated by this Agreement.
(e) Consents. QLINKS shall have obtained all authorizations,
consents, waivers and approvals as may be required to consummate the
transactions contemplated by this Agreement, including but not limited to, those
with respect to any material agreement of QLINKS.
6.5 Best Efforts. Subject to the terms and conditions provided in this
Agreement, each of the parties shall use their respective best efforts in good
faith to take or cause to be taken as promptly as practicable all reasonable
actions that are within its power to cause to be fulfilled those of the
conditions precedent to its obligations or the obligations of the other parties
to consummate the transactions contemplated by this Agreement that are dependent
upon its actions, including obtaining all necessary consents, authorizations,
orders, approvals and waivers.
6.6 Termination. This Agreement and the transactions contemplated
hereby may be terminated (i) at any time by the mutual consent of the parties
hereto; (ii) by QLINKS, or by GLOBAL, if the Closing has not occurred on or
prior to May 31, 2006 (such date of termination being referred to herein as the
"Termination Date"), provided the failure of the Closing to occur by such date
is not the result of the failure of the party seeking to terminate this
Agreement to perform or fulfill any of its obligations hereunder; (iii) by
QLINKS at any time at or prior to Closing in its sole discretion if (1) any of
the representations or warranties of GLOBAL in this Agreement are not in all
material respects true, accurate and complete or if GLOBAL, breaches in any
material respect any covenant contained in this Agreement, provided that such
misrepresentation or breach is not cured within ten (10) business days after
notice thereof, but in any event prior to the Termination Date or (2) any of the
conditions precedent to QLINK'S
obligations to conduct the Closing have not been satisfied by the date required
thereof; (iv) by GLOBAL at any time at or prior to Closing in its sole
discretion if (1) any of the representations or warranties of QLINKS in this
Agreement are not in all material respects true, accurate and complete or if
QLINKS breaches in any material respect any covenant contained in this
Agreement, provided that such misrepresentation or breach is not cured within
ten (10) business days after notice thereof, but in any event prior to the
Termination Date or (2) any of the conditions precedent to QLINK'S' obligations
to conduct the Closing have not been satisfied by the date required thereof. If
this Agreement is terminated pursuant to this Section 6.6, written notice
thereof shall promptly be given by the party electing such termination to the
other party and, subject to the expiration of the cure periods provided in
clauses (iii) and (iv) above, if any, this Agreement shall terminate without
further actions by the parties and no party shall have any further obligations
under this Agreement. Notwithstanding the preceding sentence, the respective
obligations of the parties under Section 7.1 shall survive the termination of
this Agreement. Notwithstanding anything to the contrary contained herein, if
the termination of this Agreement is a result of the willful misrepresentation,
willful inaccuracy or omission in a representation, willful breach of warranty,
fraud or any willful failure to perform or comply with any covenant or agreement
contained herein, the aggrieved party shall be entitled to recover from the
non-performing party all out-of-pocket expenses which such aggrieved party has
incurred and the termination of this Agreement shall not be deemed or construed
as limiting or denying any other legal or equitable right or remedy of such
party.
ARTICLE VII
Covenants
7.1 General Confidentiality. GLOBAL acknowledges that the Intellectual
Property and all other confidential or proprietary information with respect to
the business and operations of QLINKS are valuable, special and unique assets of
QLINKS. GLOBAL shall not, at any time either before or after the Closing Date,
disclose, directly or indirectly, to any Person, or use or purport to authorize
any Person to use any confidential or proprietary information with respect to
QLINKS, whether or not for GLOBAL's own benefit, without the prior written
consent of QLINKS or unless required by law, including without limitation, (i)
any of QLINK'S trade secrets, designs, formulae, drawings, Intellectual
Property, diagrams, techniques, research and development, specifications, data,
know-how, formats, marketing plans, business plans, budgets, strategies,
forecasts or client data; (ii) information relating to the products developed by
QLINKS, (iii) the names of QLINK'S customers and contacts, (iv) QLINK'S
marketing strategies, (v) the names of QLINK'S vendors and suppliers, (vi) the
cost of materials and labor, and the prices obtained for products or services
sold (including the methods used in price determination, manufacturing and sales
costs), (vii) the lists or other written records used in QLINK'S business,
including compensation paid to employees and consultants and other terms of
employment, production operation techniques or any other confidential
information of, about or pertaining to the business of QLINKS, and, (viii) all
tangible material that embodies any such confidential and proprietary
information as well as all records, files, memoranda, reports, price lists,
drawings, plans, sketches and other written and graphic records, documents,
equipment, and the like, relating to the business of QLINKS, and (ix) any other
confidential information or trade secrets relating to the business or affairs of
QLINKS which GLOBAL may acquire or develop in connection with or as a result of
their performance of the terms and conditions of this Agreement, excepting only
such information as is already known to the public or which may become known to
the public without any fault of GLOBAL, or in violation of any confidentiality
restrictions; provided, however, that the restrictions of this Section 7.1 shall
not be applicable to GLOBAL in connection with such Parties' enforcement of its
rights under this Agreement. GLOBAL acknowledges that QLINKS would not enter
into this Agreement without the assurance that all such confidential and
proprietary information will be used for the exclusive benefit of QLINKS.
7.2 Continuing Obligations. The restrictions set forth in Section 7.1
are considered by the parties to be reasonable for the purposes of protecting
the value of the business and goodwill of QLINKS. GLOBAL acknowledges that
QLINKS and the QLINKS Shareholders would be irreparably harmed and that monetary
damages would not provide an adequate remedy to QLINKS and the QLINKS
Shareholders in the event the covenants contained in Section 7.1 were not
complied with in accordance with their terms. Accordingly, GLOBAL agrees that
any breach or threatened breach of any provision of Section 7.1 shall entitle
QLINKS and/or the QLINKS Shareholders to injunctive and other equitable relief
to secure the enforcement of these provisions, in addition to any other remedies
(including damages) which may be available to QLINKS and/or the QLINKS
Shareholders. It is the desire and intent of the parties that the provisions of
Section 7.1 be enforced to the fullest extent permissible under the laws and
public policies of each jurisdiction in which enforcement is sought. If any
provision of Section 7.1 are adjudicated to be invalid or unenforceable, the
invalid or unenforceable provisions shall be deemed amended (with respect only
to the jurisdiction in which such adjudication is made) in such manner as to
render them enforceable and to effectuate as nearly as possible the original
intentions and agreement of the parties. In addition, if any party brings an
action to enforce Section 7.1 hereof or to obtain damages for a breach thereof,
the prevailing party in such action shall be entitled to recover from the
non-prevailing party all reasonable attorney's fees and expenses incurred by the
prevailing party in such action.
7.3 Satisfaction of Certain Expenses of the Transaction. On or prior to
the closing, QLINKS will provide funds to and pay expenses of the Transaction in
an aggregate amount of $15,000.00 including costs, with such payments being made
in cash to the entities or persons and in the amounts identified on Schedule 7.3
hereto.
7.4 Tax Treatment. Neither GLOBAL nor QLINKS will knowingly take any
action, written or otherwise, which would result in the transactions
contemplated by this Agreement not being accounted for as a tax-free exchange
pursuant to Section 368(a)(1)(B) of the Code.
ARTICLE VIII
Miscellaneous
8.1 Notices. Any notice, demand, claim or other communication under
this Agreement shall be in writing and delivered personally or sent by certified
mail, return receipt requested, postage prepaid, or sent by facsimile or prepaid
overnight courier to the parties at the addresses as follows (or at such other
addresses as shall be specified by the parties by like notice):
If to GLOBAL GLOBAL, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
If to QLINKS: QLINKS America, Inc.
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With a copy to: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Such notice shall be deemed delivered upon receipt against
acknowledgment thereof if delivered personally, on the third business day
following mailing if sent by certified mail, upon transmission against
confirmation if sent by facsimile and on the next business day if sent by
overnight courier.
8.2 Entire Agreement; Incorporation. This Agreement and the documents
and instruments and other agreements among the parties hereto as contemplated by
or referred to herein contain every obligation and understanding between the
parties relating to the subject matter hereof and merges all prior discussions,
negotiations, agreements and understandings, both written and oral, if any,
between them, and none of the parties shall be bound by any conditions,
definitions, understandings, warranties or representations other than as
expressly provided or referred to herein. All schedules, exhibits and other
documents and agreements executed and delivered pursuant hereto are incorporated
herein as if set forth in their entirety herein.
8.3 Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors,
heirs, personal representatives, legal representatives, and permitted assigns.
8.4 Assignment. This Agreement may not be assigned by any party without
the written prior consent of the other parties hereto. Subject to the preceding
sentence, this Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors and permitted assigns.
8.5 Waiver and Amendment. Any representation, warranty, covenant, term
or condition of this Agreement which may legally be waived, may be waived, or
the time of performance thereof extended, at any time by the party hereto
entitled to the benefit thereof, and any term, condition or covenant hereof
(including, without limitation, the period during which any condition is to be
satisfied or any obligation performed) may be amended by the parties thereto at
any time. Any such waiver, extension or amendment shall be evidenced by an
instrument in writing executed on behalf of the party against whom such waiver,
extension or amendment is sought to be charged. No waiver by any party hereto,
whether express or implied, of its rights under any provision of this Agreement
shall constitute a waiver of such party's rights under such provisions at any
other time or a waiver of such party's rights under any other provision of this
Agreement. No failure by any party thereof to take any action against any breach
of this Agreement or default by another party shall constitute a waiver of the
former party's right to enforce any provision of this Agreement or to take
action against such breach or default or any subsequent breach or default by
such other party.
8.6 No Third Party Beneficiary. Nothing expressed or implied in this
Agreement is intended, or shall be construed, to confer upon or give any Person
other than the parties hereto and their respective heirs, personal
representatives, legal representatives, successors and permitted assigns, any
rights or remedies under or by reason of this Agreement, except as otherwise
provided herein.
8.7 Severability. In the event that any one or more of the provisions
contained in this Agreement, or the application thereof, shall be declared
invalid, void or unenforceable by a court of competent jurisdiction, the
remainder of this Agreement shall remain in full force and effect and the
application of such provision to other Persons or circumstances will be
interpreted so as reasonably to effect the intent of the parties hereto. The
parties further agree to replace such invalid, void or unenforceable provision
with a valid and enforceable provision that will achieve, to the extent
possible, the economic, business and other purposes of such invalid, void or
unenforceable provision.
8.8 Expenses. Except as otherwise provided herein, each party agrees to
pay, without right of reimbursement from the other party, the costs incurred by
it incident to the performance of its obligations under this Agreement and the
consummation of the transactions contemplated hereby, including, without
limitation, costs incident to the preparation of this Agreement, and the fees
and disbursements of counsel, accountants and consultants employed by such party
in connection herewith.
8.9 Headings. The table of contents and the section and other headings
contained in this Agreement are for reference purposes only and shall not affect
the meaning or interpretation of any provisions of this Agreement.
8.10 Other Remedies; Injunctive Relief. Except as otherwise provided
herein, any and all remedies herein expressly conferred upon a party will be
deemed cumulative with and not exclusive of any other remedy conferred hereby,
or by law or equity upon such party, and the exercise by a party of any one
remedy will not preclude the exercise of any other remedy. The parties hereto
agree that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that the
parties shall be entitled to seek an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically the terms and provisions
hereof in any court of the United States or any state having jurisdiction, this
being in addition to any other remedy to which they are entitled at law or in
equity. In any action at law or suit in equity to enforce this Agreement or the
rights of the parties hereunder, the prevailing party in any such action or suit
shall be entitled to receive a reasonable sum for its attorneys' fees and all
other reasonable costs and expenses incurred in such action or suit.
8.11 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument. Facsimile signatures
shall be deemed valid and binding.
8.12 Remedies Exclusive. Except in the case of fraud or equitable
remedies expressly provided for herein, the parties acknowledge and agree that
the indemnification provisions set forth in Article V of this Agreement
constitute the parties' sole and exclusive remedy with respect to any and all
claims relating to the transactions contemplated by this Agreement.
8.13 Governing Law. This Agreement has been entered into and shall
be construed and enforced in accordance with the laws of the State of Colorado,
without reference to the choice of law principles thereof.
8.14 Jurisdiction and Venue. This Agreement shall be subject to the
exclusive jurisdiction of the courts of Jefferson County Colorado. The parties
to this Agreement agree that any breach of any term or condition of this
Agreement shall be deemed to be a breach occurring in the State of Colorado by
virtue of a failure to perform an act required to be performed in the State of
Colorado and irrevocably and expressly agree to submit to the jurisdiction of
the courts of the State of Colorado for the purpose of resolving any disputes
among the parties relating to this Agreement or the transactions contemplated
hereby. The parties irrevocably waive, to the fullest extent permitted by law,
any objection which they may now or hereafter have to the laying of venue of any
suit, action or proceeding arising out of or relating to this Agreement, or any
judgment entered by any court in respect hereof brought in Colorado County,
Colorado, and further irrevocably waive any claim that any suit, action or
proceeding brought in Colorado County, Colorado has been brought in an
inconvenient forum.
8.15 Participation of Parties. The parties hereby agree that they have
been represented by counsel during the negotiation and execution of this
Agreement and, therefore, waive the application of any law, regulation, holding,
or rule of construction providing that ambiguities in an agreement or other
document will be construed against the party drafting such agreement or
document.
8.16 Further Assurances. The parties hereto shall deliver any and all
other instruments or documents reasonably required to be delivered pursuant to,
or necessary or proper in order to give effect to, all of the terms and
provisions of this Agreement including, without limitation, all necessary stock
powers and such other instruments of transfer as may be necessary or desirable
to transfer ownership of the QLINKS Stock.
8.17 Publicity. No public announcement or other publicity concerning
this Agreement or the transactions contemplated hereby shall be made without the
prior written consent of both QLINKS and GLOBAL as to form, content, timing and
manner of distribution. Nothing contained herein shall prevent any party from
making any filing required by federal or state securities laws or stock exchange
rules.
8.18 Conditional Agreement. This contract is contingent and will not be
effective or deemed definitive until and unless the unaudited QLINKS 3/31/06
financial statements and the 8K 12g3 with Consolidated Pro Forma financial
statements are delivered in final form to Global.
[Signature Page to Follow]
IN WITNESS WHEREOF, the parties hereto have each executed and
delivered this Agreement as of the day and year first above written.
GLOBAL Envirotech, Inc.
By:________________________
Name: /s/▇▇▇▇ ▇▇▇▇▇
Title: President
QLINKS AMERICA, INC.
By:________________________
Name:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
--------------------------------------------------------------------------------
Schedules
AGREEMENT AND PLAN OF MERGER BY AND BETWEEN GLOBAL ENVIROTECH, INC., QLINKS
AMERICA, INC., AND THE SHAREHOLDERS OF QLINKS AMERICA, INC
SCHEDULE 2.7
Listing of GLOBAL Shareholders and held shares (remaining shares total
2,161,680):
AGREEMENT AND PLAN OF MERGER BY AND BETWEEN GLOBAL ENVIROTECH, INC., QLINKS
AMERICA, INC., AND THE SHAREHOLDERS OF QLINKS AMERICA, INC
SCHEDULE 7.3
Rocky Mountain Financial Network - $15,000