AGREEMENT AND PLAN OF MERGER
----------------------------
THIS AGREEMENT is made as of the 8th day of February, 2001.
AMONG:
CAPITAL ONE VENTURES CORP., a body corporate formed pursuant to the
laws of the State of Delaware and having an office for business located
at ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇
(the "Purchaser")
AND:
CAPITAL ONE ACQUISITION CORP., a body corporate formed pursuant to the
laws of the State of Delaware and a wholly-owned subsidiary of the
Purchaser
(the "Acquirer")
AND:
DMS ACQUISITION CORP., a body corporate formed pursuant to the laws of
the State of Delaware and having an office for business located at (the
"Company")
AND:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇, businessman, of ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇
AND:
UNIVERSAL NETWORK SOLUTIONS, INC., a body corporate formed pursuant to
the laws of the State of Delaware and having an office for business
located at
AND:
9278 COMMUNICATIONS, INC, a body corporate formed pursuant to the laws
of the State of Delaware and having an office for business located at
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
AND:
HANSA CAPITAL CORP. a body corporate formed pursuant to the laws of the
Province of British Columbia and having an office for business located
at Suite 1107, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇
(▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇, Universal Network Solutions, Inc., 9278
Communications, Inc. and Hansa Capital Corp. being hereinafter referred
to as the "Company Shareholders")
WHEREAS:
A. the Company is a body corporate formed pursuant to the laws of the
State of Delaware and engaged in the business of providing
telecommunications solutions to small and medium sized communications
companies;
B. The Company Shareholders own all of the issued and outstanding common
shares in the capital stock of the Company (the "Company Shares"); and
C. the respective Boards of Directors of the Company and the Acquirer deem
it advisable and in the best interests of the Purchaser, the Company
and the Acquirer that the Company merge with and into the Acquirer (the
"Merger") pursuant to this Agreement and the Plan of Merger, and the
applicable provisions of the laws of the State of Delaware.
NOW THEREFORE THIS AGREEMENT WITNESSETH THAT in consideration of the premises
and the mutual covenants, agreements, representations and warranties contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereto hereby agree as follows:
A. ARTICLE 1
DEFINITIONS AND INTERPRETATION
(ii) Definitions
1.1 In this Agreement the following terms will have the following meanings:
(a) "Acquirer" means Capital One Acquisition Corp.;
(b) "Acquisition Shares" means the 10,000,000 Purchaser Common
Shares to be issued in the name of the Company Shareholders at
Closing;
(c) "Agreement" means this agreement and plan of merger among the
Purchaser, the Acquirer, the Company and the Company
Shareholders;
(d) "Audited Company Financial Statements" means audited financial
statements of the Company for the fiscal period ended December
31, 2000, prepared in accordance with United States' generally
accepted accounting principles, together with the unqualified
auditors' report thereon;
(e) "Business" means all aspects of the business conducted by the
Company, including, without limitation, providing
telecommunications solutions to small and medium sized
communications companies, and all other related activities;
(f) "Closing" means the completion, on the Closing Date, of the
transactions contemplated hereby in accordance with Article 8
hereof;
(g) "Closing Date" means the day on which all conditions precedent
to the completion of the transaction as contemplated hereby
have been satisfied or waived;
(h) "Company" means DMS Acquisition Corp.;
(i) "Company Accounts Payable and Liabilities" means all accounts
payable and liabilities of the Company due and owing as at the
date hereof as set forth is Schedule "B" hereto;
(j) "Company Accounts Receivable" means any and all accounts
receivable and other debts owing to the Company;
(k) "Company Assets" means the undertaking and all the property
and assets of the Business of every kind and description
wheresoever situated;
(l) "Company Equipment" means all machinery, equipment, furniture,
and furnishings used in the Business;
(m) "Company Goodwill" means the goodwill of the Business together
with the exclusive right of the Purchaser to represent itself
as carrying on the Business in succession of the Company
subject to the terms hereof, the right to all corporate,
operating and trade names associated with the Business, or any
variations of such names as part of or in connection with the
Business, all telephone listings and telephone advertising
contracts, all lists of customers, books and records and other
information relating to the Business, all necessary licenses
and authorizations and any other rights used in connection
with the Business;
(n) "Company Intangible Assets" means all of the intangible assets
of the Company, including, without limitation, the Company
Goodwill, all trademarks, logos, copyrights, designs, and
other intellectual and industrial property including, without
limiting the generality of the foregoing, the domain names
listed in Schedule "D" hereto and all other domain names
registered by or in the name of the Company Shareholders or
the Company or its officers, directors, and employees and
related to the Business;
(o) "Company Material Contracts" means the burden and benefit of
and the right, title and interest of the Company in, to and
under all trade and non-trade contracts, engagements or
commitments, whether written or oral, to which the Company is
entitled in connection with the Business as set forth in
Schedule "A" hereto;
(p) "Company Shares" means all of the issued and outstanding
shares of the Company's common stock, par value $.001;
(q) "Company Shareholders" means ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇, Universal
Network Solutions, Inc., 9278 Communications, Inc. and Hansa
Capital Corp;
(r) "Place of Closing" means the offices of Sichenzia, Ross &
▇▇▇▇▇▇▇▇ LLP or such other place as the Purchaser, the Company
and the Company Shareholders may mutually agree upon;
(s) "Private Placement" means the private sale by the Purchaser of
not less than 750 Purchaser Preferred Shares at a price of
$1,000.00 per Purchaser Preferred Share;
(t) "Purchaser" means Capital One Ventures Corp.;
(u) "Purchaser Accounts Payable and Liabilities" means all
accounts payable and liabilities of the Purchaser due and
owing as of the date hereof as set forth is Schedule "F"
hereto;
(v) "Purchaser Common Shares" means the shares of common stock in
the capital of the Purchaser;
(w) "Purchaser Financial Statements" means the audited financial
statements of the Purchaser for the periods ended September
30, 2000 and 1999, and the unaudited financial statements of
the Purchaser for the periods ended December 31, 2000and 1999,
true copies of which are attached as Schedule "E" hereto;
(x) "Purchaser Preferred Shares" means the shares of the
Purchaser's Series A Convertible Preferred Stock to be issued
in the Private Placement;
(y) "State Corporation Law" means the Business Corporation Law of
the State of Delaware;
(z) "Subscription" means the subscription for Purchaser Preferred
Shares to be entered into at or prior to Closing pursuant to
the Private Placement, substantially in the form attached
hereto as Schedule "G"; and
(aa) "Surviving Company" means the Acquirer following the merger
with the Company.
Any other terms defined within the text of this Agreement will have the meanings
so ascribed to them.
(iii) Captions and Section Numbers
1.2 The headings and section references in this Agreement are for convenience of
reference only and do not form a part of this Agreement and are not intended to
interpret, define or limit the scope, extent or intent of this Agreement or any
provision thereof.
(iv) Section References and Schedules
1.3 Any reference to a particular "Article", "section", "paragraph", "clause" or
other subdivision is to the particular Article, section, clause or other
subdivision of this Agreement and any reference to a Schedule by letter will
mean the appropriate Schedule attached to this Agreement and by such reference
the appropriate Schedule is incorporated into and made part of this Agreement.
The Schedules to this Agreement are as follows:
(v) Information concerning the Company
1.2 Schedule "A" Company Material Contracts
1.3 Schedule "B" Company Accounts Payable and Liabilities
Schedule "C" Debts to Related Parties
Schedule "D" Domain Names
Information concerning the Purchaser
1.4 Schedule "E" Purchaser Financial Statements
Schedule "F" Purchaser Accounts Payable and
Liabilities
Agreements
Schedule "G" Subscription
Schedule "H" Lock-up Agreement
(i) Severability of Clauses
1.4 If any part of this Agreement is declared or held to be invalid for any
reason, such invalidity will not affect the validity of the remainder which will
continue in full force and effect and be construed as if this Agreement had been
executed without the invalid portion, and it is hereby declared the intention of
the parties that this Agreement would have been executed without reference to
any portion which may, for any reason, be hereafter declared or held to be
invalid.
ARTICLE 2
THE MERGER
(ii) The Merger
2.1 At Closing, the Company shall be merged with and into the Acquirer pursuant
to this Agreement and the separate corporate existence of the Company shall
cease and the Acquirer, as it exists from and after the Closing, shall be the
Surviving Company.
(iii) Effect of the Merger
2.2 The Merger shall have the effect provided therefor by the State Corporation
Law. Without limiting the generality of the foregoing, and subject thereto, at
Closing (i) all the rights, privileges, immunities, powers and franchises, of a
public as well as of a private nature, and all property, real, personal and
mixed, and all debts due on whatever account, including without limitation
subscriptions to shares, and all other choses in action, and all and every other
interest of or belonging to or due to the Company or the Acquirer, as a group,
subject to the terms hereof, shall be taken and deemed to be transferred to, and
vested in, the Surviving Company without further act or deed; and all property,
rights and privileges, immunities, powers and franchises and all and every other
interest shall be thereafter as effectually the property of the Surviving
Company, as they were of the Company and the Acquirer, as a group, and (ii) all
debts, liabilities, duties and obligations of the Company and the Acquirer, as a
group, subject to the terms hereof, shall become the debts, liabilities and
duties of the Surviving Company and the Surviving Company shall thenceforth be
responsible and liable for all debts, liabilities, duties and obligations of the
Company and the Acquirer, as a group, and neither the rights of creditors nor
any liens upon the property of the Company or the Acquirer, as a group, shall be
impaired by the Merger, and may be enforced against the Surviving Company.
(iv) Articles of Incorporation; Bylaws; Directors and
Officers
2.3 The Articles of Incorporation of the Surviving Company from and after the
Closing shall be the Articles of Incorporation of the Company until thereafter
amended in accordance with the provisions therein and as provided by the
applicable provisions of the State Corporation Law. The Bylaws of the Surviving
Company from and after the Closing shall be the Bylaws of the Company as in
effect immediately prior to the Closing, continuing until thereafter amended in
accordance with their terms, the Articles of Incorporation of the Surviving
Company and as provided by the State Corporation Law. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ shall
be the director of the Company until his successors are elected and qualified,
and shall be the officer of the Company, immediately prior to the Closing, until
his successor is duly elected and qualified.
(v) Conversion of Securities
2.4 At Closing, by virtue of the Merger and without any action on the part of
the Acquirer, the Company or the Company Shareholders, the shares of capital
stock of each of the Company and the Acquirer shall be converted as follows:
(a) Capital Stock of the Acquirer. Each issued and outstanding
share of the Acquirer's capital stock shall continue to be
issued and outstanding and shall be converted into one share
of validly issued, fully paid, and non-assessable common stock
of the Surviving Company. Each stock certificate of the
Acquirer evidencing ownership of any such shares shall
continue to evidence ownership of such shares of capital stock
of the Surviving Company.
(b) Conversion of Company Shares. Each Company Share that is
issued and outstanding immediately prior to the Closing shall
automatically be cancelled and extinguished and converted,
without any action on the part of the holder thereof, into the
right to receive an amount of Acquisition Shares equal to the
number of Acquisition Shares divided by the number of Company
Shares outstanding immediately prior to Closing. All such
Company Shares, when so converted, shall no longer be
outstanding and shall automatically be cancelled and retired
and shall cease to exist, and each holder of a certificate
representing any such shares shall cease to have any rights
with respect thereto, except the right to receive the
Acquisition Shares paid in consideration therefor upon the
surrender of such certificate in accordance with this
Agreement.
Adherence with Applicable Securities Laws
2.3 The Company Shareholders agree that they will be receiving the Acquisition
Shares for investment purposes only and will not offer, sell or otherwise
transfer, pledge or hypothecate any of the Acquisition Shares (other than
pursuant to an effective Registration Statement under the Securities Act of
1933, as amended) directly or indirectly unless:
(a) the sale is to the Purchaser;
(b) the sale is made pursuant to the exemption from registration
under the Securities Act of 1933 provided by Rule 144
thereunder; or
(c) the Acquisition Shares are sold in a transaction that does not
require registration under the Securities Act of 1933 or any
applicable United States state laws and regulations governing
the offer and sale of securities, and the Company Shareholders
have furnished to the Purchaser an opinion of counsel to that
effect or such other written opinion as may be reasonably
required by the Purchaser.
The Company Shareholders acknowledge that the certificates representing
the Acquisition Shares shall bear the following legend:
NO SALE, OFFER TO SELL, OR TRANSFER OF THE SHARES REPRESENTED
BY THIS CERTIFICATE SHALL BE MADE UNLESS A REGISTRATION
STATEMENT UNDER THE FEDERAL SECURITIES ACT OF 1933, AS
AMENDED, IN RESPECT OF SUCH SHARES IS THEN IN EFFECT OR AN
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SAID ACT IS
THEN IN FACT APPLICABLE TO SAID SHARES.
Transfer Restrictions
2.3 The Company Shareholders agree not to pledge, hypothecate, assign, option or
otherwise deal with the Acquisition Shares in any manner whatsoever until the
date which is twelve (12) months from the Closing Date and agree that the
certificates representing the acquisition shares shall bear a legend to that
effect, subject to the terms and conditions of the form of Lock-up Agreement
attached hereto as Schedule "H".
Allocation
2.4 The Acquisition Shares shall be allocated and issued to the Company
Shareholders on the following basis, reflecting their proportionate holdings of
the Company Shares immediately prior to Closing:
(a) 2,500,000 Acquisition Shares to ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇;
(b) 2,300,000 Acquisition Shares to Universal Network
Solutions Inc.;
(c) 2,700,000 Acquisition Shares to 9278 Communications, Inc.; and
(d) 2,500,000 Acquisition Shares to Hansa Capital Corp.
ARTICLE 3
(vi) REPRESENTATIONS AND WARRANTIES OF
A. THE COMPANY SHAREHOLDERS
(vii) Representations and Warranties
3.1 Each of the Company Shareholders jointly and severally represent and warrant
in all material respects to the Purchaser, with the intent that the Purchaser
will rely thereon in entering into this Agreement and in completing the
transactions contemplated hereby, that:
(viii) The Company - Corporate Status and Capacity
(a) Incorporation. The Company is a corporation duly incorporated
and validly subsisting under the laws of the State of
Delaware, and is in good standing with the office of the
Secretary of State for the State of Delaware;
(b) Carrying on Business. The Company carries on business in the
State of New York and does not carry on any material business
activity in any other jurisdiction. The Company has an office
in New York, New York and in no other locations. The nature of
the Business does not require the Company to register or
otherwise be qualified to carry on business in any other
jurisdiction;
(c) Corporate Capacity. The Company has the corporate power,
capacity and authority to own the Company Assets and to carry
on the Business;
(ix) The Company Shareholders - Capacity
(d) Capacity. The Company Shareholders have the full right, power
and authority to enter into and complete this Agreement on the
terms and conditions contained herein and to transfer and
cause the transfer of full legal, registered and beneficial
title and ownership of the Company Shares to the Purchaser;
The Company - Capitalization
(e) Authorized Capital. The authorized capital of the Company
consists of 1,000 shares of common stock;
(f) Ownership of Company Shares. The issued and outstanding share
capital of the Company will on to Closing consist of 1,000
shares of Common Stock, par value $.001 (being the Company
Shares), which shares on Closing shall be validly issued and
outstanding as fully paid and non-assessable shares. The
Company Shareholders will be immediately prior to Closing the
registered and beneficial owner of all of the Company Shares.
The Company Shareholders own and will immediately prior to
Closing own all of the Company Shares free and clear of any
and all liens, charges, pledges, encumbrances, restrictions on
transfer and adverse claims whatsoever;
(g) No Option. No person, firm or corporation has any agreement or
option or any right capable of becoming an agreement or option
for the acquisition of the Company Shares or for the purchase,
subscription or issuance of any of the unissued shares in the
capital of the Company;
(h) No Restrictions. The transfer of the Company Shares to the
Purchaser will not be restricted under the charter documents
of the Company or under any agreement, and will be permitted
under all applicable laws and regulations;
(x) The Company - Records
(i) Charter Documents. The charter documents of the Company have
not been altered since the incorporation of the Company,
except as filed in the record book of the Company;
(j) Books and Records. The books and records of the Company fairly
and correctly set out and disclose in all material respects
the financial position of the Company, and all material
financial and other transactions of the Company relating to
the Business, including any and all Company Material Contracts
and any amendments thereto, have been accurately recorded or
filed in such books and records;
(k) The Audited Company Financial Statements. The Audited Company
Financial Statements will be, when delivered to the Purchaser,
true and correct and present fairly and correctly the assets
and liabilities (whether accrued, absolute, contingent or
otherwise) of the Company as of the date thereof, and the
sales and earnings of the Business during the period covered
thereby, in all material respects, and have been prepared in
substantial accordance with United States' generally accepted
accounting principles consistently applied;
(l) Company Accounts Receivable. All Company Accounts Receivable
(if any) are bona fide and are good and collectible without
set-off or counterclaim;
(m) Company Accounts Payable and Liabilities. There are no
material liabilities, contingent or otherwise, of the Company
which are not disclosed in Schedules "B" or "C" hereto except
those incurred in the ordinary course of business since the
date of this Agreement, and the Company has not guaranteed or
agreed to guarantee any debt, liability or other obligation of
any person, firm or corporation. Without limiting the
generality of the foregoing, all accounts payable and
liabilities of the Company are described in Schedules "B" or
"C" hereto;
(n) No Debt to Related Parties. The Company is not, and on Closing
will not be, materially indebted to any of the Company
Shareholders nor to any family member of any of the Company
Shareholders, nor to any affiliate, director, officer or
shareholder of the Company or the Company Shareholders except
as set forth in Schedule "C" hereto;
(o) No Related Party Debt to the Company. None the Company
Shareholders are now indebted to or under any financial
obligation to the Company on any account whatsoever, except
for advances on account of travel and other expenses not
exceeding $5,000 in total;
(p) No Dividends. No dividends or other distributions on any
shares in the capital of the Company have been made, declared
or authorized since incorporation;
(q) No Payments. No payments of any kind have been made or
authorized since the date of incorporation to or on behalf of
the Company Shareholders or to or on behalf of officers,
directors, or employees of the Company or the Company
Shareholders or under any management agreements with the
Company, except payments made in the ordinary course of
business and at the regular rates of salary or other
remuneration payable to them;
(r) No Pension Plans. There are no pension, profit sharing, group
insurance or similar plans or other deferred compensation
plans affecting the Company;
(xi) The Company - Income Tax Matters
(s) Tax Returns. All tax returns and reports of the Company
required by law to be filed have been filed and are true,
complete and correct, and any taxes payable in accordance with
any return filed by the Company or in accordance with any
notice of assessment or reassessment issued by any taxing
authority have been so paid;
(t) Current Taxes. Adequate provisions have been made for taxes
payable for the current period for which tax returns are not
yet required to be filed and there are no agreements, waivers,
or other arrangements providing for an extension of time with
respect to the filing of any tax return by, or payment of, any
tax, governmental charge or deficiency by the Company. The
Vendors are not aware of any contingent tax liabilities or any
grounds which would prompt a reassessment including aggressive
treatment of income and expenses in filing earlier tax
returns;
(xii) The Company- Applicable Laws and Legal Matters
(u) Licences. The Company holds all licences and permits as may be
requisite for carrying on the Business in the manner in which
it has heretofore been carried on, which licences and permits
have been maintained and continue to be in good standing;
(v) Applicable Laws. The Company has not been charged with or
received notice of breach of any laws, ordinances, statutes,
regulations, by-laws, orders or decrees to which it is subject
or which apply to it the violation of which would have a
material adverse effect on the Company, and the Company is not
in breach of any laws, ordinances, statutes, regulations,
by-laws, orders or decrees the contravention of which would
result in a material adverse impact on the Business;
(w) Pending or Threatened Litigation. There is no material
litigation or administrative or governmental proceeding or
enquiry pending or threatened against or relating to the
Company, the Business, or any of the Company Assets, nor does
the Company have any knowledge of any deliberate act or
omission of the Company that would form any material basis for
any such action, proceeding or enquiry;
(x) No Bankruptcy. The Company has not made any voluntary
assignment or proposal under applicable laws relating to
insolvency and bankruptcy and no bankruptcy petition has been
filed or presented against the Company and no order has been
made or a resolution passed for the winding-up, dissolution or
liquidation of the Company;
(y) Labour Matters. The Company is not party to any collective
agreement relating to the Business with any labour union or
other association of employees and no part of the Business has
been certified as a unit appropriate for collective bargaining
or, to the knowledge of the Company Shareholders, has made any
attempt in that regard;
(z) Finder's Fees. The Company is not party to any agreement which
provides for the payment of finder's fees, brokerage fees,
commissions or other fees or amounts which are or may become
payable to any third party in connection with the execution
and delivery of this Agreement and the transactions
contemplated herein;
Execution and Performance of Agreement
(aa) Authorization and Enforceability. The execution and delivery
of this Agreement, and the completion of the transactions
contemplated hereby, have been duly and validly authorized by
all necessary action, corporate or otherwise, on the part of
the Company Shareholders and this Agreement constitutes a
legal, valid and binding obligation of the Company
Shareholders and is enforceable against the Company
Shareholders in accordance with its terms;
(bb) No Violation or Breach. The performance of this Agreement will
not
(i) violate the charter documents of the Company or
result in any breach of, or default under, any loan
agreement, mortgage, deed of trust, or any other
agreement to which any of the Company Shareholders,
or the Company, is a party,
(ii) give any person any right to terminate or cancel any
agreement including, without limitation, the Company
Material Contracts, or any right or rights enjoyed by
the Company,
(iii) result in any alteration of the Company's obligations
under any agreement to which the Company is party
including, without limitation, the Company Material
Contracts,
(iv) result in the creation or imposition of any lien,
encumbrance or restriction of any nature whatsoever
in favour of a third party upon or against the
Company Assets,
(v) result in the imposition of any tax liability to the
Company relating to the Company Assets or the Company
Shares, or
(vi) violate any court order or decree to which the
Company and the Company Shareholders or any of them
are subject;
(xiii) The Company Assets - Ownership and Condition
(cc) Business Assets. The Company Assets comprise all of the
property and assets of the Business, and none of the Company
Shareholders nor any other person, firm or corporation owns
any assets used by the Company in operating the Business,
whether under a lease, rental agreement or other arrangement;
(dd) Title. The Company is the legal and beneficial owner of the
Company Assets, free and clear of all mortgages, liens,
charges, pledges, security interests, encumbrances or other
claims whatsoever;
(ee) No Option. No person, firm or corporation has any agreement or
option or a right capable of becoming an agreement for the
purchase of any of the Company Assets;
(ff) Company Material Contracts. The Company Material Contracts
listed in Schedule "A" constitute all of the material
contracts of the Company;
(gg) No Default. There has not been any default in any material
obligation of either of the Company or the Company
Shareholders or any other party to be performed under any of
the Company Material Contracts, each of which is in good
standing and in full force and effect and unamended, and the
Company Shareholders are not aware of any default in the
obligations of any other party to any of the Company Material
Contracts;
(hh) No Compensation on Termination. There are no agreements,
commitments or understandings relating to severance pay or
separation allowances on termination of employment of any
employee of the Company. The Company is not obliged to pay
benefits or share profits with any employee after termination
of employment except as required by law;
(xiv) The Company Assets - Company Equipment
(ii) Company Equipment. The Company Equipment, if any, has been
maintained in a manner consistent with that of a reasonably
prudent owner;
(xv) The Company Assets - Company Goodwill and Other
Assets
(jj) Company Goodwill. The Company carries on the Business only
under the names "DMS Acquisition Corp." and "Cirus Networks"
and under no other business or trade names. The Company has
the legal right to use its corporate name in the State of New
York and neither the Company nor the Company Shareholders are
aware of any names similar to "Cirus Networks" in use in any
areas where the Business is conducted or is planned to be
conducted. The Company Shareholders have no knowledge of any
infringement by the Company of any patent, trademark,
copyright or trade secret;
a. The Business
(kk) Maintenance of Business. Since the date incorporation, the
Business has been carried on in the ordinary course and the
Company has not entered into any material agreement or
commitment except in the ordinary course; and
(ll) No Ownership of Company. The Company does not own any
subsidiary and does not otherwise own, directly or indirectly,
any shares or interest in any other corporation, partnership,
joint venture or firm.
(xvi) Non-Merger and Survival
3.2 The representations and warranties of the Company Shareholders contained
herein will be true at and as of Closing in all material respects as though such
representations and warranties were made as of such time. Notwithstanding the
completion of the transactions contemplated hereby, the waiver of any condition
contained herein (unless such waiver expressly releases a party from any such
representation or warranty) or any investigation made by the Purchaser, the
representations and warranties of the Company Shareholders shall survive the
Closing.
(xvii) Indemnity
3.3 The Company Shareholders jointly and severally agree to indemnify and save
harmless the Purchaser from and against any and all claims, demands, actions,
suits, proceedings, assessments, judgments, damages, costs, losses and expenses,
including any payment made in good faith in settlement of any claim (subject to
the right of the Company Shareholders to defend any such claim), resulting from
the breach by any of them of any representation or warranty of such party under
this Agreement or from any misrepresentation in or omission from any certificate
or other instrument furnished or to be furnished by the Company Shareholders to
the Purchaser hereunder.
ARTICLE 4
COVENANTS OF THE COMPANY
AND THE COMPANY SHAREHOLDERS
(xviii) Covenants
4.1 The Company and the Company Shareholders jointly and severally covenant and
agree with the Purchaser that they will:
(a) Conduct of Business. Until the Closing, conduct the Business
diligently and in the ordinary course consistent with the
manner in which the Business generally has been operated up to
the date of execution of this Agreement;
(b) Preservation of Business. Until the Closing, use their best
efforts to preserve the Business and the Company Assets and,
without limitation, preserve for the Purchaser the Company's
relationships with their suppliers, customers and others
having business relations with them;
(c) Access. Until the Closing, give the Purchaser and its
representatives full access to all of the properties, books,
contracts, commitments and records of the Company relating to
the Company, the Business and the Company Assets, and furnish
to the Purchaser and its representatives all such information
as they may reasonably request;
(d) Procure Consents. Until the Closing, take all reasonable steps
required to obtain, prior to Closing, any and all third party
consents required to permit the merger of the Acquirer and the
Company and to preserve and maintain the Company Assets,
including the Company Material Contracts, notwithstanding a
possible change in control of the Company arising from the
merger of the Acquirer and the Company;
(e) Alterations of Purchaser's Capital Stock. Except as provided
for in Article 9 hereof, from and after the Closing, the
Company and the Company Shareholders covenant and agree with
the Purchaser that they shall not, for a period of twelve (12)
months following the date of the Closing, take any action to
cause or result in a stock split or reverse stock split of
capital stock, change any attributes of the Purchaser's
capital stock, or create, issue or amend any new series of the
Purchaser's capital stock other than for acquisitions, third
party financing, or other bona fide corporate purposes of the
Purchaser including, without limitation, debt conversions,
settlements of outstanding accounts payable obligations and
contracts with public relations or investor relations firms
(f) Reporting Obligations. From and after the Closing Date, the
Company Shareholders covenant and agree with the Purchaser
that they shall take all such steps as are necessary to
discharge all reporting obligations imposed upon them by the
Exchange Act by virtue of their being as affiliates of the
Purchaser.
(xix) Authorization
4.2 The Company and the Company Shareholders hereby agree to promptly cause the
Company, upon the request of the Purchaser, to authorize and direct any and all
federal, provincial, municipal, foreign and international governments and
regulatory authorities having jurisdiction respecting the Company to release any
and all information in their possession respecting the Company to the Purchaser.
The Company Shareholders shall promptly cause the Company to execute and deliver
to the Purchaser any and all consents to the release of information and specific
authorizations which the Purchaser reasonably requires to gain access to any and
all such information.
(xx) Survival
4.3 The covenants set forth in this Article shall survive until the Closing for
the benefit of the Purchaser.
ARTICLE 5
Schedule "A" REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
(xxi) Representations and Warranties
5.1 The Purchaser represents and warrants in all material respects to the
Company Shareholders, with the intent that the Company Shareholders will rely
thereon in entering into this Agreement and in completing the transactions
contemplated hereby, that:
(xxii) The Purchaser - Corporate Status and Capacity
(a) Incorporation. The Purchaser is a corporation duly
incorporated and validly subsisting under the laws of the
State of Delaware, and is in good standing with the office of
the Secretary of State for the State of Delaware;
(b) Carrying on Business. Other than the acquisition of Sierra
Madre Gold de Mexico S.A. de C.V. in 1997, the Purchaser has
not carried on and does not now carry on any material business
activity. The Purchaser has an office in Vancouver, British
Columbia and in no other locations;
(c) Corporate Capacity. The Purchaser has the corporate power,
capacity and authority to enter into and complete this
Agreement;
(d) Reporting Status. The Purchaser Common Shares have been
registered pursuant to s. 12(g) of the Securities and Exchange
Act of 1934 (United States), the Purchaser has made all
current filings with the SEC as required by Section 13 or
15(d) of the Exchange Act (none of which contain any untrue
statement of a material fact or omit to state any material
fact), the Purchaser Common Shares are quoted on the NASD
"Bulletin Board" and the Purchaser has received no notice,
either oral or written, with respect to its continued
eligibility for such listing;
The Purchaser - Capitalization
(e) Authorized Capital. The authorized capital of the Purchaser
consists of 30,000,000 Purchaser Common Shares, $0.0001 par
value and 5,000,000 shares of preferred stock $0.0001 par
value, of which 5,175,456 Purchaser Common Shares and no
shares of preferred stock are presently issued and outstanding
and, at Closing, will consist of 5,175,456 Purchaser Common
Shares and at least 750 Purchaser Preferred Shares;
(f) No Option. The Purchaser has not entered into any agreements
or granted any options or rights capable of becoming an
agreement or option for the acquisition of Purchaser Common
Shares or for the purchase, subscription or issuance of any of
the unissued shares in the capital of the Purchaser save and
except as referred to herein;
(g) Capacity. The Purchaser has the full right, power and
authority to enter into and complete this Agreement on the
terms and conditions contained herein;
(h) No Restrictions. There are no restrictions on the transfer,
sale or other disposition of the Acquisition Shares contained
in the charter documents of the Purchaser or under any
agreement to which the Purchaser is a Party, save and except
for the Lock-up Agreement;
(xxiii) The Purchaser - Records and Financial Statements
(i) Charter Documents. The charter documents of the Purchaser have
not been altered since the incorporation of the Purchaser,
except as filed in the record books of the Purchaser;
(j) Books and Records. The books and records of the Purchaser
fairly and correctly set out and disclose in all material
respects the financial position of the Purchaser, and all
material financial and other transactions of the Purchaser,
including any and all contracts and any amendments thereto,
have been accurately recorded or filed in such books and
records;
(k) Purchaser Financial Statements. The Purchaser Financial
Statements are true and correct and present fairly and
correctly the assets and liabilities (whether accrued,
absolute, contingent or otherwise) of the Purchaser as of the
respective dates thereof and have been prepared in substantial
accordance with United States' generally accepted accounting
principles consistently applied;
(l) Purchaser Accounts Payable and Liabilities. There are no
material liabilities, contingent or otherwise, of the
Purchaser which are not disclosed in Schedule "F" hereto or
reflected in the Purchaser Financial Statements except those
incurred in the ordinary course of business since the date of
the said financial statements, and the Purchaser has not
guaranteed or agreed to guarantee any debt, liability or other
obligation of any person, firm or corporation. Without
limiting the generality of the foregoing, all accounts payable
and liabilities of the Purchaser are described in Schedule "F"
hereto;
(m) No Dividends. No dividends or other distributions on any
shares in the capital of the Purchaser have been made,
declared or authorized since the date of the Purchaser
Financial Statements;
(n) No Payments. No payments of any kind have been made or
authorized since the date of the Purchaser Financial
Statements to or on behalf of officers, directors,
shareholders or employees of the Purchaser or under any
management agreements with the Purchaser;
(o) No Pension Plans. There are no pension, profit sharing, group
insurance or similar plans or other deferred compensation
plans affecting the Purchaser;
(p) No Adverse Events. Since the date of the Purchaser Financial
Statements there has not been any material adverse change in
the financial position or condition of the Purchaser or its
liabilities or any damage, loss or other change in
circumstances materially affecting the Purchaser;
(q) Applicable Laws. The Purchaser has not been charged with or
received notice of breach of any laws, ordinances, statutes,
regulations, by-laws, orders or decrees to which it is subject
or which apply to it the violation of which would have a
material adverse effect on the Purchaser;
(r) Pending or Threatened Litigation. There is no material
litigation or administrative or governmental proceeding or
enquiry pending or threatened against or relating to the
Purchaser nor does the Purchaser have any knowledge of any
deliberate act or omission of the Purchaser that would form
any material basis for any such action, proceeding or enquiry;
(s) No Bankruptcy. The Purchaser has not made any voluntary
assignment or proposal under applicable laws relating to
insolvency and bankruptcy and no bankruptcy petition has been
filed or presented against the Purchaser and no order has been
made or a resolution passed for the winding-up, dissolution or
liquidation of the Purchaser;
(t) Finder's Fees. The Purchaser is not party to any agreement
which provide for the payment of finder's fees, brokerage
fees, commissions or other fees or amounts which are or may
become payable to any third party in connection with the
execution and delivery of this Agreement and the transactions
contemplated herein;
(xxiv) The Purchaser - Income Tax Matters
(dd) Tax Returns. All tax returns and reports of the Purchaser
required by law to be filed have been filed and are true,
complete and correct, and any taxes payable in accordance with
any return filed by the Purchaser or in accordance with any
notice of assessment or reassessment issued by any taxing
authority have been so paid;
(ee) Current Taxes. Adequate provisions have been made for taxes
payable for the current period for which tax returns are not
yet required to be filed and there are no agreements, waivers,
or other arrangements providing for an extension of time with
respect to the filing of any tax return by, or payment of, any
tax, governmental charge or deficiency by the Purchaser. The
Purchaser is not aware of any contingent tax liabilities or
any grounds which would prompt a reassessment including
aggressive treatment of income and expenses in filing earlier
tax returns;
Execution and Performance of Agreement
(u) Authorization and Enforceability. The execution and delivery
of this Agreement, and the completion of the transactions
contemplated hereby, have been duly and validly authorized by
all necessary corporate action on the part of the Purchaser
and this Agreement constitutes a legal, valid and binding
obligation of the Purchaser and is enforceable against it in
accordance with its terms;
(v) No Violation or Breach. The performance of this Agreement will
not violate the charter documents of the Purchaser or result
in any breach of, or default under, any agreement to which the
Purchaser is a party; and
(xxv) The Purchaser - Acquisition Shares
(w) Acquisition Shares. The Acquisition Shares when delivered to
the Company Shareholders shall be validly issued and
outstanding as fully paid and non-assessable shares, subject
to the provisions of this Agreement, and the Acquisition
Shares shall be transferable upon the books of the Purchaser,
in all cases subject to the provisions and restrictions of all
applicable securities laws.
(xxvi) Non-Merger and Survival
5.2 The representations and warranties of the Purchaser contained herein will be
true at and as of Closing in all material respects as though such
representations and warranties were made as of such time. Notwithstanding the
completion of the transactions contemplated hereby, the waiver of any condition
contained herein (unless such waiver expressly releases a party from any such
representation or warranty) or any investigation made by the Company
Shareholders, the representations and warranties of the Purchaser shall survive
the Closing.
(xxvii) Indemnity
5.3 The Purchaser agrees to indemnify and save harmless the Company Shareholders
from and against any and all claims, demands, actions, suits, proceedings,
assessments, judgments, damages, costs, losses and expenses, including any
payment made in good faith in settlement of any claim (subject to the right of
the Purchaser to defend any such claim), resulting from the breach by it of any
representation or warranty of such party under this Agreement or from any
misrepresentation in or omission from any certificate or other instrument
furnished or to be furnished by the Purchaser to the Company Shareholders
hereunder.
ARTICLE 6
CONDITIONS PRECEDENT
(xxviii) Conditions Precedent in favour of the Purchaser
6.1 The Purchaser's obligations to carry out the transactions contemplated
hereby is subject to the fulfillment of each of the following conditions
precedent on or before the Closing:
(a) all documents or copies of documents required to be executed
and delivered to the Purchaser hereunder will have been so
executed and delivered;
(b) the Audited Company Financial Statements shall have been
delivered to the Purchaser;
(c) pro forma financial statements showing the combined assets,
liabilities, stockholders' equity and results of operations of
the Purchaser and the Company, prepared in accordance with
United States' generally accepted accounting principles and
the requirements of the Securities and Exchange Commission
shall have been delivered to the Purchaser;
(d) the Purchaser shall have completed its due diligence review of
the affairs of the Company, and shall be satisfied with same
in all material respects;
(e) all of the terms, covenants and conditions of this Agreement
to be complied with or performed by the Company Shareholders
at or prior to the Closing will have been complied with or
performed;
(f) title to the Company Shares and Company Assets will be free
and clear of all mortgages, liens, charges, pledges, security
interests, encumbrances or other claims whatsoever;
(g) the Company Shareholders will have transferred the Company
Shares to the Purchaser and the Company Shares will be issued
to the Purchaser and registered on the books of the Company in
the name of the Purchaser at Closing;
(h) the Certificate of Merger shall be executed by the Company;
(i) subject to Article 9 hereof, there will not have occurred
(i) any material adverse change in the financial position
or condition of the Company, its liabilities or the
Company Assets or any damage, loss or other change in
circumstances materially and adversely affecting the
Company Shareholders, the Business or the Company
Assets or the Company's right to carry on the
Business, other than changes in the ordinary course
of business, none of which has been materially
adverse, or
(ii) any damage, destruction, loss or other event,
including changes to any laws or statutes applicable
to the Company or the Business (whether or not
covered by insurance) materially and adversely
affecting the Company, the Business or the Company
Assets; and
(j) the transactions contemplated hereby shall have been approved
by all other regulatory authorities having jurisdiction over
the subject matter hereof, if any.
(xxix) Waiver by the Purchaser
6.2 The conditions precedent set out in the preceding section are inserted for
the exclusive benefit of the Purchaser and any such condition may be waived in
whole or in part by the Purchaser at or prior to Closing by delivering to the
Company Shareholders a written waiver to that effect signed by the Purchaser. In
the event that the conditions precedent set out in the preceding section are not
satisfied on or before the Closing the Purchaser shall be released from all
obligations under this Agreement.
(xxx) Conditions Precedent in Favour of the Company and the
Company Shareholders
6.3 The obligation of the Company and the Company Shareholders to carry out the
transactions contemplated hereby is subject to the fulfillment of each of the
following conditions precedent on or before the Closing:
(a) all documents or copies of documents required to be executed
and delivered to the Company and the Company Shareholders
hereunder will have been so executed and delivered;
(b) all of the terms, covenants and conditions of this Agreement
to be complied with or performed by the Purchaser at or prior
to the Closing will have been complied with or performed;
(c) the Certificate of Merger shall be executed by the Acquirer;
(d) the Purchaser will have delivered the Acquisition Shares to
the Company Shareholders and the Acquisition Shares will be
registered on the books of the Purchaser in the name of the
Company Shareholders at Closing;
(e) title to the Acquisition Shares will be free and clear of all
mortgages, liens, charges, pledges, security interests,
encumbrances or other claims whatsoever; and
(f) the Purchaser shall have received duly executed subscriptions
for not less than 750 Purchaser Preferred Shares pursuant to
the Private Placement and shall have received in full the
subscription funds therefore, such funds being held in escrow
pending Closing.
(xxxi) Waiver by the Company and the Company Shareholders
6.4 The conditions precedent set out in the preceding section are inserted for
the exclusive benefit of the Company and the Company Shareholders and any such
condition may be waived in whole or in part by the Company and the Company
Shareholders at or prior to the Closing by delivering to the Purchaser a written
waiver to that effect signed by the Company and the Company Shareholders. In the
event that the conditions precedent set out in the preceding section are not
satisfied on or before the Closing the Company and the Company Shareholders
shall be released from all obligations under this Agreement.
(xxxii) Nature of Conditions Precedent
6.5 The conditions precedent set forth in this Article are conditions of
completion of the transactions contemplated by this Agreement and are not
conditions precedent to the existence of a binding agreement. Each party
acknowledges receipt from the other parties of the sum of $1.00 and other good
and valuable consideration as separate and distinct consideration for agreeing
to the conditions of precedent in favour of the other party or parties set forth
in this Article.
(xxxiii) Confidentiality
6.6 Notwithstanding any provision herein to the contrary, the parties hereto
agree that the existence and terms of this Agreement are confidential and that
if this Agreement is terminated the parties agree to return to one another any
and all financial, technical and business documents delivered to the other party
or parties in connection with the negotiation and execution of this Agreement
and shall keep the terms of this Agreement and all information and documents
received from the Company and the contents thereof confidential and not utilize
nor reveal or release same, provided, however, that the Purchaser will be
required to issue one or more news releases and file a Current Report on Form
8-K with the Securities and Exchange Commission respecting the proposed share
purchase contemplated hereby.
ARTICLE 7
RISK
If any material loss or damage to the Business occurs prior to Closing
and such loss or damage, in the Purchaser's reasonable opinion, cannot be
substantially repaired or replaced within sixty (60) days, the Purchaser shall,
within seven (7) days following any such loss or damage, by notice in writing to
the Company and the Company Shareholders, at its option, either:
(a) terminate this Agreement, in which case no party will be under
any further obligation to any other party; or
(b) elect to complete the Merger and the other transactions
contemplated hereby, in which case the proceeds and the rights
to receive the proceeds of all insurance covering such loss or
damage will, as a condition precedent to the Purchaser's
obligations to carry out the transactions contemplated hereby,
be vested in the Company or otherwise adequately secured to
the satisfaction of the Purchaser on or before the Closing
Date.
ARTICLE 8
(xxxiv) CLOSING
(xxxv) Closing
8.1 The Merger and the other transactions contemplated by this Agreement will be
closed at the Place of Closing in accordance with the closing procedure set out
in this Article.
Documents to be Delivered by the Company and the Company Shareholders
8.2 On or before the Closing, the Company and the Company Shareholders will
deliver or cause to be delivered to the Purchaser:
(a) certified copies of such resolutions of the directors of
Universal Network Solutions, Inc., Hansa Capital Corp. and
9278 Communications Inc. as are required to be passed to
authorize the execution, delivery and implementation of this
Agreement;
(b) the original or certified copies of the charter documents of
the Company and all corporate records documents and
instruments of the Company, the corporate seals of the Company
and all books and accounts of the Company;
(c) certificates representing the Company Shares, duly endorsed
for transfer to the Purchaser, together with a duly executed
share certificate respecting the Company Shares issued to the
Purchaser and recorded in the share register of the Company;
(d) all reasonable consents or approvals required to be obtained
by the Company and the Company Shareholders for the purposes
of completing the Merger and preserving and maintaining the
interests of the Company under any and all Company Material
Contracts and in relation to the Company Assets;
(e) certified copies of such resolutions of the Company
Shareholders and directors of the Company as are required to
be passed to authorize the execution, delivery and
implementation of this Agreement;
(f) an acknowledgement from the Company and the Company
Shareholders of the satisfaction of the conditions precedent
set forth in section 6.3 hereof;
(g) the Certificate of Merger, duly executed by the Company;
(h) the Lock-up Agreement, duly executed by the Company
Shareholders; and
(i) such other documents as the Purchaser may reasonably require
to give effect to the terms and intention of this Agreement.
(xxxvi) Documents to be Delivered by the Purchaser
8.3 On or before the Closing, the Purchaser shall deliver or cause to be
delivered to the Company Shareholders:
(a) share certificates representing the Acquisition Shares duly
registered in the name of the Company Shareholders;
(b) certified copies of such resolutions of the director of the
Purchaser, the directors of the Acquirer, and the shareholder
of the Acquirer as are required to be passed to authorize the
execution, delivery and implementation of this Agreement;
(c) the Certificate of Merger, duly executed by the Acquirer; and
(d) an acknowledgement from the Purchaser of the satisfaction of
the conditions precedent set forth in section 6.1 hereof.
A. ARTICLE 9
POST CLOSING CONDITIONS
9.1 Forthwith following the Closing, the Purchaser and the Company agree to file
a Certificate of Merger with the Secretary of State for the State of Delaware.
9.2 Forthwith following the Closing, the Purchaser shall file with the
Securities and Exchange Commission the disclosure required by Rule 14f-1,
"Change in Majority of Directors" promulgated under the Securities Exchange Act
of 1934 and shall mail such report to its shareholders as required by Rule
14f-1. On the date which is ten days following the filing of such report, the
Board of Directors of the Purchaser shall appoint ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇
▇▇▇▇ as directors of the Purchaser.
9.3 Forthwith following the Closing, the Purchaser shall file a Form D with the
Securities and Exchange Commission.
9.4 Forthwith following the Closing, the Purchaser shall file with the
Securities and Exchange Commission a Current Report on Form 8K disclosing the
particulars of the acquisition by the Purchaser of the Company Shares.
9.5 As soon as practicable following the Closing, the Purchaser shall:
(a) increase its authorized capital to 100,000,000 Purchaser
Common Shares, $0.0001 par value;
(b) forward split the number of Purchaser Common Shares on the
basis of three new Purchaser Common Shares for each one old
Purchaser Common Share;
(c) change its name to "Cirus Networks, Inc."; and
(d) have this Agreement ratified by its shareholders.
ARTICLE 10
GENERAL PROVISIONS
(xxxvii) Arbitration
10.1 The parties hereto shall attempt to resolve any dispute, controversy,
difference or claim arising out of or relating to this Agreement by negotiation
in good faith. If such good negotiation fails to resolve such dispute,
controversy, difference or claim within fifteen (15) days after any party
delivers to any other party a notice of its intent to submit such matter to
arbitration, then any party to such dispute, controversy, difference or claim
may submit such matter to arbitration in the City of New York, New York.
(xxxviii) Notice
10.2 Any notice required or permitted to be given by any party will be deemed to
be given when in writing and delivered to the address of the intended recipient
stated above by personal delivery, prepaid single certified or registered mail,
or facsimile. Any notice delivered by mail shall be deemed to have been received
on the fourth business day after and excluding the date of mailing, except in
the event of a disruption in regular postal service in which event such notice
shall be deemed to be delivered on the actual date of receipt. Any notice
delivered personally or by facsimile shall be deemed to have been received on
the actual date of delivery.
(xxxix) Change of Address
10.3 Any party may, by notice to the other parties change its address for notice
to some other address in North America and will so change its address for notice
whenever the existing address or notice ceases to be adequate for delivery by
hand. A post office box may not be used as an address for service.
(xl) Further Assurances
10.4 Each of the parties will execute and deliver such further and other
documents and do and perform such further and other acts as any other party may
reasonably require to carry out and give effect to the terms and intention of
this Agreement.
(xli) Time of the Essence
10.5 Time is expressly declared to be the essence of this Agreement.
(xlii) Entire Agreement
10.6 The provisions contained herein constitute the entire agreement among the
Company Shareholders and the Purchaser respecting the subject matter hereof and
supersede all previous communications, representations and agreements, whether
verbal or written, among the Company Shareholders and the Purchaser with respect
to the subject matter hereof.
(xliii) Enurement
10.7 This Agreement will enure to the benefit of and be binding upon the parties
hereto and their respective heirs, executors, administrators, successors and
permitted assigns.
(xliv) Assignment
10.8 This Agreement is not assignable without the prior written consent of the
parties hereto.
(xlv) Counterparts
10.9 This Agreement may be executed in counterparts, each of which when executed
by any party will be deemed to be an original and all of which counterparts will
together constitute one and the same Agreement. Delivery of executed copies of
this Agreement by telecopier will constitute proper delivery, provided that
originally executed counterparts are delivered to the parties within a
reasonable time thereafter.
Applicable Law
10.10 This Agreement is subject to the laws of the State of New York and,
subject to section 1-.1 hereof, the parties hereto to attorn to the exclusive
jurisdiction of the Courts of the State of New York.
(xlvi) Independent Legal Advice
10.11 The parties hereto acknowledge that they have each received independent
legal advice with respect to the terms of this Agreement and the transactions
contemplated herein or have knowingly and willingly elected not to do so. The
parties hereto further acknowledge that this Agreement has been prepared by
Century Capital Management Ltd. as a convenience to the parties only, and that
Century Capital Management Ltd. has not provided any of the parties hereto with
any professional advice with respect to this Agreement.
IN WITNESS WHEREOF the parties have executed this Agreement effective as of the
day and year first above written.
CAPITAL ONE VENTURES CORP.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Witness Authorized Signatory
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Name
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Address
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CAPITAL ONE ACQUISITION CORP.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Witness Authorized Signatory
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Name
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Address
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_________________________________
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Witness ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
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Name
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
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Address
---------------------------------------- DMS ACQUISITIONS , INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
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Witness Authorized Signatory
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Name
----------------------------------------
Address
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UNIVERSAL NETWORK
SOLUTIONS , INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
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Witness Authorized Signatory
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Name
----------------------------------------
Address
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9278 COMMUNICATIONS, INC.
By: /s/ ▇▇▇▇▇ KAPIDA
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Witness Authorized Signatory
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Name
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Address
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HANSA CAPITAL CORP.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
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Witness Authorized Signatory
Name
Address
This is Page 25 to the Agreement and Plan of Merger dated February 8, 2001 among
Capital One Ventures Corp., Capital One Acquisition Corp., DMS Acquisition
Corp., ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇, Universal Network Solutions, Inc., 9278
Communications, Inc. and Hansa Capital Corp.