_________________________________________________________________
_________________________________________________________________
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
LOCKWAVE, INC.,
IMOJO, INC.,
AUDIOMONSTER ONLINE, INC.
AND
AMOL INC.
DATED: SEPTEMBER 25, 2000
_________________________________________________________________
_____________
_________________________________________________________________
_____________
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger (the AAgreement@), dated
September 25, 2000, is made and entered into by and among
Lockwave, Inc., a Delaware corporation (ALockwave@), Imojo, Inc.,
a Delaware corporation and the owner of all of the outstanding
capital stock of Lockwave (the AShareholder@), Audiomonster
Online, Inc., a Nevada corporation (AAudiomonster@), and AMOL,
Inc., a Delaware corporation and wholly-owned subsidiary of
Audiomonster (AAMOL@).
BACKGROUND
Whereas, Lockwave's authorized capital consists of 10,000
shares of common stock, $.01 par value per share, and all of the
issued and outstanding shares of the Common Stock (the AShares@)
are owned by the Shareholder; and
Whereas, Lockwave is engaged in the business of
incorporating virtual storage and an MP3 player into one
traveling web-based application targeting the MP3 generation (the
ABusiness@); and
Whereas, the respective Boards of Directors of Lockwave,
Audiomonster and AMOL, have approved the merger of AMOL with and
into Lockwave (the AMerger@) with Lockwave being the surviving
corporation, upon the terms and subject to the conditions more
fully set forth herein.
Now, Therefore, and in consideration of the mutual promises
and covenants set forth herein, and intending to be legally bound
hereby, the parties hereto agree as follows:
ARTICLE I
The Merger and Related Matters
Section 1.1. The Merger. Subject to the terms and
conditions of this Agreement, Articles of Merger duly executed
and acknowledged shall be filed in the office of the Secretary of
State of the State of Delaware on the Closing Date (as defined in
Article IV) or as soon as practicable thereafter. The Merger
shall become effective upon such filing (the AEffective Time@).
At the Effective Time, AMOL shall be merged with and into
Lockwave, and Lockwave shall continue as the surviving
corporation under the laws of the State of Delaware (such
continuing corporation sometimes hereinafter referred to as the
ASurviving Corporation@).
Section 1.2. Effect of Merger. At the Effective Time, the
effect of the Merger shall be as provided in the applicable
provisions of the laws of the State of Delaware. Except as
herein specifically set forth, the identity, existence, purposes,
powers, objects, franchises, privileges, rights and immunities of
Lockwave shall continue unaffected and unimpaired by the Merger
and the corporate franchises, existence and rights of AMOL shall
be merged with and into Lockwave, and Lockwave, as the Surviving
Corporation, shall be fully vested therewith. At the Effective
Time, the separate existence of AMOL shall cease and, in
accordance with the terms of this Agreement, the Surviving
Corporation shall possess all the rights, privileges, immunities
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 subscriptions to shares, and all
taxes, including those due and owing and those accrued, and all
other choses in action, and all and every other interest of or
belonging to or due to Lockwave and AMOL shall be taken and
deemed to be transferred to, and vested in, the Surviving
Corporation without further act or deed; and all property, rights
and privileges, powers and franchises and all and every other
interest shall be thereafter effectually the property of the
Surviving Corporation as they were of Lockwave and AMOL. Except
as otherwise provided herein, the Surviving Corporation shall
thenceforth be responsible and liable for all the liabilities and
obligations of Lockwave and AMOL and any claim existing, or
action or proceeding pending, by or against Lockwave or AMOL may
be prosecuted as if the Merger had not taken place, or the
Surviving Corporation may be substituted in their place. Neither
the rights of creditors nor any liens upon the property of
Lockwave or AMOL shall be impaired by the Merger, and all debts,
liabilities and duties of Lockwave and AMOL shall attach to the
Surviving Corporation, and may be enforced against the Surviving
Corporation to the same extent as if said debts, liabilities and
duties had been incurred or contracted by such Surviving
Corporation.
Section 1.3. Articles of Incorporation of the Surviving
Corporation. The Articles of Incorporation of Lockwave, as in
effect immediately prior to the Closing, shall be the Articles of
Incorporation of the Surviving Corporation.
Section 1.4. By-Laws of the Surviving Corporation. The By-
Laws of Lockwave, as in effect immediately prior to the Closing,
shall be the By-Laws of the Surviving Corporation until
thereafter amended as provided by law.
Section 1.5. Directors and Officers of the Surviving
Corporation. At the Effective Time, Paul Steo and Gregory
Corcoran shall be the directors of the Surviving Corporation,
each of such directors to hold office, subject to the applicable
provisions of the Articles of Incorporation and By-Laws of the
Surviving Corporation, until the next annual shareholders=
meeting of the Surviving Corporation and until their respective
successors shall be duly elected or appointed and qualified. At
the Effective Time, the officers of Lockwave, subject to the
applicable provisions of the Articles of Incorporation and By-
Laws of the Surviving Corporation, shall be as designated by the
Board of Directors of the Surviving Corporation until their
respective successors shall be duly elected or appointed and
qualified.
Section 1.6. Manner of Conversion. As of the Effective
Time:
(a) all of the Shares which are issued and
outstanding immediately prior to the Effective Time, by
virtue of the Merger and without any action on the part of
the holder thereof, automatically shall be deemed to
represent the right to receive the Merger Consideration, as
provided in Section 1.7 hereof;
(b) all Shares which are held by Lockwave as
treasury stock shall be canceled and retired and no consideration
shall be delivered or paid in exchange therefore; and
(c) each share of the capital stock of AMOL shall
be cancelled and in exchange therefore, 1,000 shares of Lockwave,
Inc. shall be issued to Audiomonster.
Section 1.7. Merger Consideration. The consideration
payable by Audiomonster to the Shareholder or its designees in
connection with the Merger shall be (i) Three Million Dollars
($3,000,000) in cash (the ACash Portion@) ($100,000 of which has
been previously paid to the Shareholder) and (ii) an aggregate of
Four Million Five Hundred Thousand (4,500,000) shares of
Audiomonster common stock (the AShare Portion@ and together with
the Cash Portion, the AMerger Consideration@). The Merger
Consideration shall be payable or delivered to the Shareholder or
its designees as follows:
(a) At the Closing, on the Closing Date,
Audiomonster shall pay to the Shareholder or its designees by
wire transfer of immediately available funds, to an account
designated in writing by the Shareholder or its designees, One
Hundred Fifty Thousand Dollars ($150,000). The remainder of the
Cash Portion shall be payable to the Shareholder or its designees
by wire transfer of immediately available funds to an account
designated in writing as follows:
(i) $500,000 on or before November 4, 2000;
(ii) $750,000 on or before December 4, 2000;
(iii) $500,000 on or before January 4,
2001;
(iv) $500,000 on or before February 4, 2001;
and
(v) $500,000 on or before March 4, 2001.
Any payment due on a day which is not a day
in which banks are open for business in the United States will be
due on the next business day.
(b) At the Closing, all of the outstanding shares
of the Surviving Corporation (the AEscrowed Shares@) shall be
endorsed in blank by Audiomonster and placed in escrow with the
escrow agent (AEscrow Agent@) named in the Escrow Agreement
between Audiomonster, AMOL and the Shareholder, substantially in
the form attached hereto as Exhibit A (the AEscrow Agreement@).
The Escrowed Shares shall be held by the Escrow Agent pursuant to
the terms of the Escrow Agreement.
(c) No later than (45) days after the delivery to
Audiomonster of any required audited financial statements of
Lockwave, Audiomonster shall file a registration statement on
Form SB-2 (or other applicable form) with the Securities and
Exchange Commission (ASEC@) relating to the resale of Two Million
Five Hundred Thousand (2,500,000) shares of the Share Portion.
In the event Audiomonster fails to file the registration required
hereby in accordance with the time frame provided, Audiomonster
shall issue to the Shareholder or its designees One Hundred Sixty
Two Thousand Five Hundred (162,500) shares of common stock of
Audiomonster per month until such time as the registration
statement is filed with the SEC.
ARTICLE II
Representations And Warranties of Lockwave And
The Shareholder
Lockwave and the Shareholder hereby make the following
representations and warranties to AMOL and Audiomonster:
Section 2.1. Organization. Lockwave is a corporation duly
organized, validly existing and in good standing under the laws
of the State of Delaware and is duly authorized to carry on the
business presently conducted by it. All of the issued and
outstanding shares of capital stock of Lockwave are owned by the
Shareholder free and clear of all liens and encumbrances of any
kind. The Shares represent all of the issued and outstanding
shares, of all types or classes, of Lockwave and there are no
outstanding options, warrants, convertible or exchangeable
securities or other rights to purchase shares of capital stock of
Lockwave.
Section 2.2. Pending Claims.
(a) There is no litigation, suit, action, claim,
arbitration, administrative or legal or other proceeding, or
governmental investigation pending or, to Lockwave=s or the
Shareholder=s knowledge threatened, against Lockwave relating to
the Business and there are no unasserted claims possible of
assertion involving the Business of which Lockwave has notice or
knowledge;
(b) There are no audits by a governmental
authority, claims for unpaid taxes of any kind, or other similar
actions, proceedings or disputes pending or, to Lockwave=s
knowledge, threatened against or affecting the Business;
(c) There are no unpaid judgments of any kind
against Lockwave or the Shareholder relating to the Business; and
(d) Neither Lockwave nor the Shareholder are
charged with or, to either the Company=s or the Shareholder=s
knowledge threatened, with a charge or violation or, to either
Company=s or the Shareholder=s knowledge, is it under
investigation with respect to any alleged violation of any
provision of any federal, state, local or foreign law or
administrative ruling or regulation relating to any aspect of the
Business.
(e) To the best knowledge of Lockwave and the
Shareholder, there are no liabilities or potential liabilities of
Lockwave which in the aggregate exceed Fifty Thousand Dollars
($50,000).
Section 2.3. Title to Assets. Lockwave is the sole and
exclusive owner of, and has good and marketable title to, all of
its assets, rights, properties, claims, contracts and business of
every kind, nature, character and description, tangible and
intangible, personal, real or mixed, wherever located, wherever
located, free and clear of all liens, mortgages, pledges, claims,
encumbrances, security interests, covenants, easements, rights of
way, equities, options, rights of first refusal, assessments,
defects in title, encroachments, charges or any other burden of
restriction of any kind or nature (collectively, ALiens@); and
(b) no other person, firm or corporation has or will have on the
Closing Date any interest whatsoever in any of such assets. The
assets of Lockwave are identified on Schedule 2.3 hereof (the
AAssets@).
Section 2.4. No Breach or Violation. The execution,
delivery and performance of this Agreement and any other
agreements contemplated hereby between the parties hereto by
Lockwave and the consummation of the transactions contemplated by
this Agreement or any other agreements contemplated hereby will
not (a) result in or constitute a breach or an event that, with
notice or lapse of time or both, would be a default, breach or
other violation of the articles of incorporation, bylaws of
Lockwave; (b) violate (with or without the giving of notice or
the lapse of time or both), or require any consent, approval,
filing or notice under, any provision of any law, rule or
regulation, court or administrative order, writ, judgment or
decree applicable to Lockwave, the Business or any of the Assets,
and (c) with or without the giving of notice or the lapse of time
or both (i) violate or conflict with, or result in the breach,
suspension or termination of any provision of, or constitute a
default under, or result in the acceleration of the performance
of the obligations of any of Lockwave under, or (ii) result in
the creation of any Liens upon all or any portion of the
properties, assets (including the Assets) or the Business
pursuant to, the articles of incorporation or bylaws of Lockwave,
or any indenture, mortgage, deed of trust, lease, agreement,
contract or instrument to which Lockwave is a party or by which
Lockwave, its Assets or business is bound.
Section 2.5. Corporate Documents. Lockwave has furnished
to Audiomonster for its examination true and correct copies of
the articles of incorporation, bylaws and minute books of
Lockwave.
Section 2.6. Conduct of Business. From the date of this
Agreement until full payment of the Cash Portion, Lockwave shall
operate the Business in the ordinary course and in a commercially
reasonable manner and will make all reasonably necessary efforts
to preserve intact the Business, its relationships with third
parties, all memberships, if any, that it presently holds, the
goodwill it has accrued and the services, to the extent
practicable, of its existing officers, employees, and directors.
Section 1.1.
ARTICLE III
Audiomonster=s and AMOL=s Representations and Warranties
Audiomonster and AMOL each represent and warrant to Lockwave
and the Shareholder, their respective successors and assigns,
that:
Section 3.1. Organization. Audiomonster is a corporation
duly organized, existing and in good standing under the laws of
the State of Nevada, and is not presently and has not since its
incorporation been the subject of any governmental or quasi-
governmental inquiry or review which would materially adversely
effect its business or operations, nor to the knowledge of
Audiomonster, is any such inquiry or review pending or
threatened. AMOL is a corporation duly organized, existing and
in good standing under the laws of the State of Delaware.
Section 3.2. Authority. Each of Audiomonster and AMOL
have taken all necessary corporate action on its part as may be
required under the laws of the jurisdiction of organization and
under its charter documents to authorize the execution, delivery
and carrying out of this Agreement on behalf of Audiomonster and
AMOL, respectively.
Section 3.3. Authority and Enforceability. Audiomonster
and AMOL each have the full right, power, legal capacity and
authority to enter into and perform their respective obligations
under this Agreement. The execution, delivery and performance by
Audiomonster and AMOL of this Agreement and any other agreements
contemplated hereby and the consummation by them of the
transactions contemplated hereby and thereby have been duly
authorized by Audiomonster as the sole shareholder of AMOL and by
the Board of Directors of Audiomonster. No other corporate or
stockholder action is necessary for the authorization, execution,
delivery and performance by Audiomonster and AMOL of this
Agreement and any other agreements between the parties
contemplated hereby and the consummation by Audiomonster and AMOL
of the transactions contemplated hereby or thereby. This
Agreement has been duly executed and delivered by Audiomonster
and AMOL and constitutes a valid and legally binding obligation
of Audiomonster and AMOL, enforceable against each of them in
accordance with the terms hereof.
Section 3.4. No Breach or Violation. The execution,
delivery and performance of this Agreement and any other
agreements contemplated hereby between the parties hereto by
Audiomonster and AMOL and the consummation of the transactions
contemplated by this Agreement or any other agreements
contemplated hereby will not (a) result in or constitute a breach
or an event that, with notice or lapse of time or both, would be
a default, breach or other violation of the articles of
incorporation or bylaws of Audiomonster or AMOL; (b) violate
(with or without the giving of notice or the lapse of time or
both), or require any consent, approval, filing or notice under,
any provision of any law, rule or regulation, court or
administrative order, writ, judgment or decree applicable to
Audiomonster or AMOL; and (c) with or without the giving of
notice or the lapse of time or both violate or conflict with, or
result in the breach, suspension or termination of any provision
of, or constitute a default under, or result in the acceleration
of the performance of any obligations of Audiomonster or AMOL.
Section 1.1.
Section 3.5. Capitalization. As of the date hereof, the
authorized capital stock of Audiomonster consists of Fifty
Million (50,000,000) shares of Common Stock, par value $.001 per
share (the "Common Stock"), of which 13,805,000 shares of Common
Stock have been validly issued and outstanding, fully paid and
nonassessable (excluding the Share Portion of the Merger
Consideration). The Company has no obligation (contingent or
other) to purchase, redeem or otherwise acquire any of its equity
securities, or any interest therein or to pay any dividend or to
make any other distribution in respect thereof. Except for this
Agreement, there are no voting trusts or agreements, shareholder
agreements, buy-sell agreements, rights of first refusal,
preemptive rights or proxies relating to any securities of
Audiomonster (whether or not Audiomonster is a party thereto).
All of the outstanding securities of Audiomonster were issued in
compliance with all applicable Federal and state securities laws.
Audiomonster holds no shares of capital stock in its treasury.
Section 3.6. Liabilities. To the best knowledge of
Audiomonster, there are no liabilities or potential liabilities
of Audiomonster that are not included in the financial statements
of Audiomonster dated as of June 30, 2000 which in the aggregate
exceed Fifty Thousand Dollars ($50,000). The parties hereto
acknowledge that there are $1,655,000 in convertible debentures
which are expected, on or immediately after Closing, to be
converted to 1,655,000 shares of common stock of Audiomonster.
The parties acknowledge that these shares of common stock are not
included in Section 3.5 above.
Section 3.7. Each of the documents filed by Audiomonster
with the SEC (including all financial statements included
therein) (the ASEC Filings@) at the time of filing thereof
conformed with the requirements of the Securities Act of 1933, as
amended and the Rules and Regulations promulgated thereto, and
none of the SEC Filings at the time of filing thereof contained
an untrue statement of a material fact or omitted to state a
material fact required to be stated therein and necessary to make
the statements therein in light of the circumstances under which
they were made, not misleading.
ARTICLE IV
The Closing
The closing (AClosing@) of the Merger and any other
transactions contemplated by this Agreement shall take place at
the law offices of Westerman Shapiro, Draghi & Miller, LLP, 600
Old Country Road, Suite 500, Garden City, New York 11530 at 9:00
a.m., on September 25, 2000, or at such other place and time and
on such other date, as the parties may agree upon in writing
(AClosing Date@).
ARTICLE V
Conditions to ClosinG
The obligations of Lockwave and the Shareholder to engage in
the transactions contemplated by this Agreement are subject to
the fulfillment to the satisfaction of Lockwave and the
Shareholder, prior to or at the Closing Date, of the following
condition:
(a) Audiomonster shall deliver or cause to be delivered
Three Million Six Hundred Twenty-Five Thousand (3,625,000) shares
of Audiomonster common stock to the Shareholder or its designees.
All such shares shall be subject to Ademand@ registration rights
exercisable by the Shareholder or its designees and their
respective assigns at any time after the Closing Date and
Apiggyback@ registration rights in accordance with the
registration rights agreement between Audiomonster and the
Shareholder substantially in the form attached hereto as Exhibit
B (the ARegistration Rights Agreement@).
ARTICLE VI
POST CLOSING COVENANTS OF AUDIOMONSTER
Immediately following the Closing or as soon thereafter as
is reasonably practicable, Audiomonster shall take all steps
necessary to ensure that it Board of Directors is comprised of
Paul Steo and Gregory Corcoran, each of such directors to hold
office, subject to the applicable provisions of the Articles of
Incorporation and By-Laws of Audiomonster until the next annual
shareholders= meeting of Audiomonster and until their respective
successors shall be duly elected or appointed and qualified.
ARTICLE VII
Obligations of Lockwave and the Shareholder at Closing
At the Closing, Lockwave or the Shareholder (as the case may
be) shall deliver or cause to be delivered to Audiomonster the
following in a form and substance reasonably satisfactory to
Audiomonster:
Section 7.1. Deliveries. Imojo or Lockwave shall execute,
acknowledge, deliver and cause to be executed, acknowledged and
delivered to Audiomonster:
(a) Stock certificates for all of the Shares duly
endorsed for transfer or accompanied by duly executed stock
powers executed in blank;
(b) A Certificate of Merger;
(c) The Escrow Agreement; and
(d) The Registration Rights Agreement.
Section 7.2. Corporate Good Standing and Corporate
Resolution. Lockwave shall deliver to Audiomonster a Certificate
of Good Standing from the Secretary of State of Delaware for
Lockwave, together with a certified copy of the resolutions of
the Board of Directors of Lockwave and the Shareholder,
authorizing the execution, delivery and consummation of this
Agreement and the execution, delivery and consummation of all
other agreements and documents executed in connection herewith.
Section 1.1.
ARTICLE VIII
Obligations of AMOL and Audiomonster at Closing
At Closing, AMOL or Audiomonster (as the case may be) shall
deliver or cause to be delivered to the Shareholder the following
in a form and substance reasonably satisfactory to the
Shareholder:
Section 8.1. Merger Consideration. Audiomonster shall
deliver to the Shareholder or its designees cash or other
immediately available funds in the aggregate amount of the Cash
Portion specified herein, the Share Portion to be transferred to
the Shareholder or its designees, and shall deliver to the Escrow
Agent the Escrowed Shares as specified herein.
Section 8.2. AMOL and/or Audiomonster shall execute,
acknowledge, deliver and cause to be executed, acknowledged and
delivered to Audiomonster:
(a) A Certificate of Merger;
(b) The Escrow Agreement; and
(c) The Registration Rights Agreement.
Section 8.3. Corporate Good Standing and Certified Board
Resolutions. AMOL and Audiomonster shall deliver to Lockwave a
Certificate of Good Standing from the Secretary of the State of
Delaware for AMOL and Nevada for Audiomonster and a certified
copy of the resolutions of the Boards of Directors of AMOL and
Audiomonster approving this Agreement and consummation of the
transactions contemplated hereby.
ARTICLE IX
Miscellaneous
Section 9.1. Expenses. Each party shall bear its own
expenses in connection with this Agreement and the
transactions contemplated hereby.
Section 9.2. References to Dollar Amounts. All
references in this Agreement to dollar amounts shall be
deemed to mean United States dollars unless specifically
indicated otherwise.
Section 9.3. Headings. The subject headings of the
sections, paragraphs and subparagraphs of this Agreement are
included for purposes of convenience only, and shall not
affect the construction or interpretation of any of its
provisions.
Section 9.4. Entire Agreement, Modification and
Waiver. This Agreement, together with the agreements referenced
herein or contemplated hereby, constitute the entire agreement
between the parties pertaining to its subject matter and
supersede all prior and contemporaneous agreements,
representations and understandings of the parties. No
supplement, modification or amendment of this Agreement shall be
binding unless executed in writing by all the parties. No waiver
of any of the provisions of this Agreement shall be deemed, or
shall constitute, a waiver of any other provision, whether or not
similar, nor shall any waiver constitute a continuing waiver. No
waiver shall be binding unless executed in writing by the party
making the waiver.
Section 9.5. Counterparts. This Agreement may be
executed simultaneously in one or more counterparts, each of
which shall be deemed an original, but all of which together
shall constitute one and the same instrument.
Section 9.6. Rights of Parties. Nothing in this
Agreement, whether expressed or implied, is intended to confer
any rights or remedies under or by reason of this Agreement on
any persons other than the parties to it and their respective
successors and assigns, nor is anything in this Agreement
intended to relieve or discharge the obligation or liability of
any third persons to any party to this Agreement, nor shall any
provision give any third persons any right of subrogation or
action over or against any party to this Agreement.
Section 9.7. Assignment. Neither AMOL nor
Audiomonster shall assign this Agreement to any person other than
an Affiliate or successor without the prior written consent of
Imojo. Subject to the previous sentence, this Agreement shall be
binding on, and shall inure to the benefit of, the parties to it
and their respective heirs, legal representatives, successors and
permitted assigns. The Shareholder shall be free to assign its
right to receive payments under Section 1.7 to any party upon
delivery of written notice thereof to Audiomonster not less than
two (2) days prior to the Closing Date; provided however, that
the Shareholder may not assign any other right, or delegate any
obligation hereunder, without the prior written consent of
Audiomonster. Any assignment or attempted assignment in
violation of the provisions of this Section 9.7 shall be void.
Section 9.8. Remedies. Each party=s obligation under
this Agreement is unique. If any party should default in its
obligations under this Agreement, the parties each acknowledge
that it would be extremely impracticable to measure the resulting
damages; accordingly, the nondefaulting party, in addition to any
other available rights or remedies, may sue in equity for
specific performance, and the parties each expressly waive the
defense that a remedy in damages will be adequate.
Section 9.9. Effect of Certain Actions. No action
taken pursuant to or related to this Agreement, including without
limitation any investigation by or on behalf of any party, shall
be deemed to constitute a waiver by the party taking such action
of compliance with any representation, warranty, condition or
agreement contained herein.
Section 9.10. Notices. All notices, requests and
other communications under this Agreement shall be in writing and
shall be deemed to have been duly given on the date of service if
served personally on the party (including without limitation
service by overnight courier service) to whom notice is to be
given, or on the third day after mailing if mailed to the party
to whom notice is to be given, by first class mail, registered or
certified, postage prepaid, at the address set forth below, or on
the date of service if delivered by facsimile to the facsimile
number set forth below which facsimile is confirmed within three
days by deposit of a copy of such notice in first class mail,
registered or certified, postage prepaid at the address set forth
below. Any party may change its address for purposes of this
paragraph by giving the other parties written notice of the new
address in the manner set forth above.
If to Lockwave 47 Mall Drive
or Unit 5
to Shareholder: Commack, NY 11725
Attn: Mr. Corey Morrison
with a copy to: Westerman Shapiro Draghi & Miller, LLP
600 Old Country Road
Suite 500
Garden City, NY 11530
Attn: Alan C. Ederer, Esq.
If to Audiomonster Suite 200
or to AMOL: 1311 Howe Street
Vancouver, B.C.
Canada V6Z 2P3 With Audiomonster Online, Inc.
copies to: Suite 200, 311 Howe Street
Vancouver, B.C.
Attn: Mr. Gregory Corcoran
Tel. No.: (604) 691-1765
Fax No.: (604 608-4722
Section 9.11. Severability. If any provision of this
Agreement shall be declared by any court of competent
jurisdiction to be illegal, void or unenforceable, all other
provisions of this Agreement shall not be affected and shall
remain in full force and effect.
Section 9.12. Definition of Affiliate. As used in
this Agreement the term AAffiliate@ as to any person, means any
other person, that, directly or indirectly, through one or more
intermediaries, controls, is controlled by or is under common
control with such person.
Section 9.13. Governing Law; Venue. This Agreement
shall be construed in accordance with, and governed by, the laws
of the State of New York as applied to contracts that are
executed and performed entirely in New York. The parties hereby
agree that any action, suit, arbitration or other proceeding
arising out of or related to this Agreement shall be brought,
maintained and conducted only in New York, and each party hereby
irrevocably consents and submits to the personal jurisdiction of
and venue in the United States District Court for the Eastern
District of New York and the New York State Courts in any such
proceeding.
Section 9.14. Legal Fees. In the event any legal
action or proceeding is instituted to enforce or interpret any of
the provisions of this Agreement, the prevailing party shall be
entitled to reasonable attorneys= fees.
Section 9.15. Schedules and Exhibits. The Schedules
and Exhibits attached to this Agreement are a part hereof as if
fully set forth herein.
Section 9.16. Time of Essence. Time is of the essence
for each and every provision of this Agreement where time is a
factor.
In Witness Whereof, the parties to this Agreement have duly
executed it as of the day and year first set forth above.
Lockwave, Inc.
By:________________________________
_
Title:
Imojo, Inc.
By:
_________________________________
Title:
Audiomonster Online, Inc.
By:
_________________________________
Title:
AMOL Inc.
By:
_________________________________
Title:
H:\WPDOCS\LOCKWAVE\AGREEMENT AND PLAN OF MERGER-7
