<PAGE> 1
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
WELLSTONE ACQUISITION CORP.
(Name of Issuer)
Common Stock, $.0001 Par Value
(Title of Class of Securities)
None
(CUSIP Number)
Mr. Steven Dempsey
President and Chief Executive Officer
Pet Quarters, Inc.
720 East Front Street
Lonoke, Arkansas 72086
(501) 676-9222
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
March 6, 2000
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Sections 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check
the following box: [ ].
Page 1 of 5
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SCHEDULE 13D
CUSIP No. None
<TABLE>
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<S> <C> <C>
(1) NAMES OF REPORTING PERSONS, I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Pet Quarters, Inc., 62-1698524
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(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS) (a) [ ]
(b) [X]
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(3) SEC USE ONLY
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(4) SOURCE OF FUNDS (SEE INSTRUCTIONS)
WC
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(5) CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ]
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(6) CITIZENSHIP OR PLACE OF ORGANIZATION
State of Arkansas
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(7) SOLE VOTING POWER
NUMBER OF 5,000,000
SHARES ---------------------------------------------------------------------------------------------------
BENEFICIALLY (8) SHARED VOTING POWER
OWNED BY EACH None
REPORTING PERSON ---------------------------------------------------------------------------------------------------
WITH (9) SOLE DISPOSITIVE POWER
5,000,000
---------------------------------------------------------------------------------------------------
(10) SHARED DISPOSITIVE POWER
None
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(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
5,000,000
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(12) CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS) [ ]
- ------------------------------------------------------------------------------------------------------------------------------
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
100%
- ------------------------------------------------------------------------------------------------------------------------------
(14) TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
CO
- ------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Page 2 of 5
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ITEM 1. SECURITY AND ISSUER
This statement relates to the common stock $.0001 par value
("Common Stock") of Wellstone Acquisition Corp. (the "Issuer"). The Issuer has
not sought or received a CUSIP number for its Common Stock. The executive
offices of the Issuer were located at 1504 R Street, N.W., Washington, DC 20009,
but are now located at 720 East Front Street, Lonoke, Arkansas 72086.
ITEM 2. IDENTITY AND BACKGROUND
(a) Name: PetQuarters, Inc.
(b) Business address: 720 East Front Street, Lonoke, Arkansas
72086
(c) Present Occupation: N/A
(d) Pet Quarters, Inc. has not, during the last five years,
been convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors).
(e) PetQuarters, Inc. was not, during the last five years, a party
to a civil proceeding of a judicial or administrative body of
competent jurisdiction, or subject to a judgment, decree or
final order enjoining future violations of, or prohibiting or
mandating activities subject to, federal or state securities
laws or finding any violation with respect to such laws.
(f) Citizenship: PetQuarters, Inc. is organized under the laws of
the State of Arkansas.
The executive officers and directors of PetQuarters, Inc. are Steven
Dempsey (Director and President), Gregg Rollins (Chief Financial Officer), and
Dino Moshova (Director and Vice President of Technology).
(a) Name: Steven Dempsey
(b) Business address: 720 East Front Street, Lonoke, Arkansas
72086
(c) Present Occupation: President and Chairman of the Board of
PetQuarters, Inc.
(d) Steven Dempsey has not, during the last five years, been
convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors).
(e) Steven Dempsey was not, during the last five years, a party to
a civil proceeding of a judicial or administrative body of
competent jurisdiction, or subject to a judgment, decree or
final order enjoining future violations of, or prohibiting or
mandating activities subject to, federal or state securities
laws or finding any violation with respect to such laws.
(f) Citizenship: United States citizen.
Page 3 of 5
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(a) Name: Gregg Rollins
(b) Business address: 720 East Front Street, Lonoke, Arkansas
72086
(c) Present Occupation: Chief Financial Officer of PetQuarters,
Inc.
(d) Gregg Rollins has not, during the last five years, been
convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors).
(e) Gregg Rollins was not, during the last five years, a party to
a civil proceeding of a judicial or administrative body of
competent jurisdiction, or subject to a judgment, decree or
final order enjoining future violations of, or prohibiting or
mandating activities subject to, federal or state securities
laws or finding any violation with respect to such laws.
(f) Citizenship: United States citizen.
(a) Name: Dino Moshova
(b) Business address: 56 Stuart Place, Manhasset, New York 11030
(c) Present Occupation: Owner and Operator of Moon Bark Web Design
and serves as Vice President of Technology and Director of
PetQuarters, Inc.
(d) Dino Moshova has not, during the last five years, been
convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors).
(e) Dino Moshova was not, during the last five years, a party to a
civil proceeding of a judicial or administrative body of
competent jurisdiction, or subject to a judgment, decree or
final order enjoining future violations of, or prohibiting or
mandating activities subject to, federal or state securities
laws or finding any violation with respect to such laws.
(f) Citizenship: United States citizen.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
The 5,000,000 shares of Wellstone Acquisition Corp. were acquired
for $225,000 and 130,208 shares of PetQuarters, Inc. common stock, $.001 par
value.
ITEM 4. PURPOSE OF TRANSACTION
The acquisition of Wellstone Acquisition Corp. was undertaken to
accomplish or assist in accomplishing two goals of PetQuarters, Inc ("Company").
First, the Company believed at the time of the acquisition that the acquisition
and subsequent merger of the Company with Wellstone Acquisition Corp. might
assist the Company in becoming a fully reporting company under the Securities
Exchange Act of 1934. This goal was subsequently accomplished by clearing all
comments on a previously filed Form 10-SB.
Page 4 of 5
<PAGE> 5
Second, the Company has, from time to time, considered acquiring
additional corporations through mergers for either cash or securities, or both.
As a result, the Company believed, and still believes, that Wellstone
Acquisition Corp. may serve as a vehicle for assisting in such acquisitions. At
the time of the acquisition of Wellstone Acquisition Corp. and on this date, the
Company does not have a specific acquisition under consideration that would
require the use of Wellstone Acquisition Corp. as an acquisition vehicle.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
Pet Quarters, Inc. owns 5,000,000 shares of Common Stock of
Wellstone Acquisition Corp., which represents 100% of the outstanding Common
Stock of Wellstone Acquisition Corp.
During the most recent sixty days, there were no transactions in
the Common Stock.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF THE ISSUER
Except with respect to the terms of the acquisition agreement, a
copy of which is attached hereto as Exhibit 1, there exists no contract
arrangements, understandings or relationships, legal or otherwise, between
PetQuarters, Inc., and any other person with respect to any securities of
Wellstone Acquisition Corp., including but not limited to the transfer or voting
of any such securities, finders fees, joint ventures, loan or option
arrangements, puts or calls, guarantees of profits, division of profits or loss,
or the giving or withholding of proxies.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
Exhibit No. 1 - Wellstone Acquisition Corp. acquisition agreement
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this Statement is true, complete and
correct.
Date: April 28, 2000
---------------------
Signature: /s/ Steven Dempsey
---------------------------------
Steven Dempsey, President
Pet Quarters, Inc.
Page 5 of 5
<PAGE> 6
INDEX TO EXHIBITS
Exhibit No. 1 Wellstone Acquisition Corp. acquisition agreement
<PAGE> 1
EXHIBIT 1
AGREEMENT AND PLAN OF REORGANIZATION among PET QUARTERS, INC., an Arkansas
corporation ("Pet Quarters"), WELLSTONE ACQUISITION CORPORATION, a Delaware
corporation ("Wellstone") and the persons listed in Exhibit A hereof
(collectively the "Shareholders"), being the owners of record of all the issued
and outstanding stock of Wellstone.
Whereas, Pet Quarters wishes to acquire and the Shareholders wish to transfer
all of the issued and outstanding securities of Wellstone in a transaction
intended to qualify as a reorganization within the meaning of Section
368(a)(1)(B) of the Internal Revenue Code of 1986, as amended (the "Exchange").
Now, therefore, Pet Quarters, Wellstone, and the Shareholders adopt this plan of
reorganization and agree as follows:
1. EXCHANGE OF STOCK
1.1. NUMBER OF SHARES. The Shareholders agree to transfer to Pet Quarters at the
Closing (defined below) the number of shares of common stock of Wellstone,
$0.0001 par value per share, shown opposite their names in Exhibit A, in
exchange for an aggregate of 130,208 shares of voting common stock of Pet
Quarters, $.001 par value per share.
1.2. EXCHANGE OF CERTIFICATES. Each holder of an outstanding certificate or
certificates theretofore representing shares of Wellstone common stock shall
surrender such certificate(s) for cancellation to Pet Quarters, and shall
receive in exchange a certificate or certificates representing the number of
full shares of Pet Quarters common stock into which the shares of Wellstone
common stock represented by the certificate or certificates so surrendered shall
have been converted. The transfer of Wellstone shares by the Shareholders shall
be effected by the delivery to Pet Quarters at the Closing of certificates
representing the transferred shares endorsed in blank or accompanied by stock
powers executed in blank.
1.3. FURTHER ASSURANCES. At the Closing and from time to time thereafter, the
Shareholders shall execute such additional instruments and take such other
action as Pet Quarters may request in order more effectively to sell, transfer,
and assign the transferred stock of Wellstone to Pet Quarters and to confirm Pet
Quarters' title thereto.
2. CLOSING
2.1. DATE AND PLACE. The Closing contemplated herein shall be held at the
offices of the Exchange Agent provided for herein without requiring the meeting
of the parties hereof. All proceedings to be taken and all documents to be
executed at the Closing shall be deemed to have been taken, delivered and
executed simultaneously, and no proceeding shall be deemed taken nor documents
deemed executed or delivered until all have been taken, delivered and executed.
The date of Closing may be accelerated or extended by agreement of the parties.
2.2. EXECUTION OF DOCUMENTS. Any copy, facsimile telecommunication or other
reliable reproduction of the writing or transmission required by this agreement
or any signature required thereon may be used in lieu of an original writing or
transmission or signature for any and all purposes for which the original could
be used, provided that such copy, facsimile telecommunication or other
reproduction shall be a complete reproduction of the entire original writing or
transmission or original signature.
<PAGE> 2
3. UNEXCHANGED CERTIFICATES. Until surrendered, each outstanding certificate
that prior to the Closing represented Wellstone common stock shall be deemed for
all purposes, other than the payment of dividends or other distributions, to
evidence ownership of the number of shares of Pet Quarters common stock into
which it was converted. No dividend or other distribution shall be paid to the
holders of certificates of Wellstone common stock until presented for exchange
at which time any outstanding dividends or other distributions shall be paid.
4. REPRESENTATIONS AND WARRANTIES OF WELLSTONE
Wellstone represents and warrants as follows:
4.1. CORPORATE ORGANIZATION AND GOOD STANDING. Wellstone is a corporation duly
organized, validly existing, and in good standing under the laws of the State of
Delaware, and is qualified to do business as a foreign corporation in each
jurisdiction, if any, in which its property or business requires such
qualification.
4.2. REPORTING COMPANY STATUS. Wellstone has filed with the Securities and
Exchange Commission a registration statement on Form 10-SB which became
effective without condition on January 10, 2000 pursuant to the Securities
Exchange Act of 1934 and is, and will be at Closing, a reporting company
pursuant to Section 12(g) thereunder.
4.3. REPORTING COMPANY FILINGS. Wellstone has timely filed and is current on all
reports required to be filed by it pursuant to Section 13 of the Securities
Exchange Act of 1934.
4.4. CAPITALIZATION. Wellstone's authorized capital stock consists of
100,000,000 shares of common stock, $.0001 par value, of which 5,000,000 shares
are issued and outstanding, and 20,000,000 shares of non-designated preferred
stock of which no shares are designated or issued.
4.5. ISSUED STOCK. All the outstanding shares of its common stock are owned by
the Shareholders and duly authorized and validly issued, fully paid and
non-assessable.
4.6. STOCK RIGHTS. Except as may be set out by attached schedule, there are no
stock grants, options, rights, warrants or other rights to purchase or obtain
Wellstone common or preferred Stock issued or committed to be issued.
4.7. CORPORATE AUTHORITY. Wellstone has all requisite corporate power and
authority to own, operate and lease its properties, to carry on its business as
it is now being conducted and to execute, deliver, perform and conclude the
transactions contemplated by this agreement and all other agreements and
instruments related to this agreement.
4.8. AUTHORIZATION. Execution of this agreement has been duly authorized and
approved by Wellstone's board of directors.
4.9. SUBSIDIARIES. Except as may be set out by attached schedule, Wellstone has
no subsidiaries.
4.10. FINANCIAL STATEMENTS. Wellstone's financial statements dated October 31,
1999, copies of which will have been delivered by Wellstone to Pet Quarters
prior to the Closing (the "Wellstone Financial Statements"), fairly present the
financial condition of Wellstone as of the date therein and the results of its
operations for the periods then ended in conformity with generally accepted
accounting principles consistently applied.
4.11. ABSENCE OF UNDISCLOSED LIABILITIES. Except to the extent reflected or
reserved against in the Wellstone Financial Statements, Wellstone did not have
at that date any liabilities or obligations (secured, unsecured, contingent, or
otherwise) of a
<PAGE> 3
nature customarily reflected in a corporate balance sheet prepared in accordance
with generally accepted accounting principles.
4.12. NO MATERIAL CHANGES. Except as may be set out by attached schedule, there
has been no material adverse change in the business, properties, liabilities, or
financial condition of Wellstone since the date of the Wellstone Financial
Statements.
4.13. LITIGATION. Except as may be set out by attached schedule, there is not,
to the knowledge of Wellstone, any pending, threatened, or existing litigation,
bankruptcy, criminal, civil, or regulatory proceeding or investigation,
threatened or contemplated against Wellstone or against any of its officers.
4.14. CONTRACTS. Except as may be set out by attached schedule, Wellstone is not
a party to any material contract not in the ordinary course of business that is
to be performed in whole or in part at or after the date of this agreement.
4.15. TITLE. Except as may be set out by attached schedule, Wellstone has good
and marketable title to all the real property and good and valid title to all
other property included in the Wellstone Financial Statements. Except as set out
in the balance sheet thereof, the properties of Wellstone are not subject to any
mortgage, encumbrance, or lien of any kind except minor encumbrances that do not
materially interfere with the use of the property in the conduct of the business
of Wellstone.
4.16. TAX RETURNS. Except as may be set out by attached schedule, all required
tax returns for federal, state, county, municipal, local, foreign and other
taxes and assessments have been properly prepared and filed by Wellstone for all
years for which such returns are due unless an extension for filing any such
return has been filed. Any and all federal, state, county, municipal, local,
foreign and other taxes and assessments, including any and all interest,
penalties and additions imposed with respect to such amounts have been paid or
provided for. The provisions for federal and state taxes reflected in the
Wellstone Financial Statements are adequate to cover any such taxes that may be
assessed against Wellstone in respect of its business and its operations during
the periods covered by the Wellstone Financial Statements and all prior periods,
and for all periods to the date hereof.
4.17. NO VIOLATION. Consummation of the Exchange will not constitute or result
in a breach or default under any provision of any charter, bylaw, indenture,
mortgage, lease, or agreement, or any order, judgment, decree, law, or
regulation to which any property of Wellstone is subject or by which Wellstone
is bound.
5. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS
The Shareholders, individually and separately, represent and warrant as follows:
5.1. TITLE TO SHARES. The Shareholders, and each of them, are the owners, free
and clear of any liens and encumbrances, of the number of Wellstone shares which
are listed in the attached Exhibit A and which they have contracted to exchange.
The Wellstone shares owned by the Shareholders constitute 100% of the issued and
outstanding common shares of Wellstone.
5.2. LITIGATION. There is no litigation or proceeding pending, or to each
Shareholder's knowledge threatened, against or relating to shares of Wellstone
held by the Shareholders.
5.3 DISCLOSURE. The Shareholders acknowledge that they have been provided with a
copy of the Form 10-SB as filed by Pet Quarters with the Securities and Exchange
Commission ("Form 10-SB").
<PAGE> 4
6. REPRESENTATIONS AND WARRANTIES OF PET QUARTERS
Pet Quarters represents and warrants as follows:
6.1. CORPORATE ORGANIZATION AND GOOD STANDING. Pet Quarters is a corporation
duly organized, validly existing, and in good standing under the laws of the
State of Arkansas and is qualified to do business as a foreign corporation in
each jurisdiction, if any, in which its property or business requires such
qualification.
6.2. CAPITALIZATION. Pet Quarters' authorized capital stock consists of
40,000,000 shares of common stock, $.001 par value, of which 11,653,244 shares
were issued and outstanding as of December 31, 1999, and 10,000,000 shares of
preferred stock, $.001 par value, of which no shares are issued and outstanding.
6.3. ISSUED STOCK. All the outstanding shares of its common stock are duly
authorized and validly issued, fully paid and non-assessable.
6.4. STOCK RIGHTS. Except as may be set out by attached schedule or in the Form
10-SB, there are no stock grants, options, rights, warrants or other rights to
purchase or obtain Pet Quarters common or preferred Stock issued or committed to
be issued.
6.5. CORPORATE AUTHORITY. Pet Quarters has all requisite corporate power and
authority to own, operate and lease its properties, to carry on its business as
it is now being conducted and to execute, deliver, perform and conclude the
transactions contemplated by this agreement and all other agreements and
instruments related to this agreement.
6.6. AUTHORIZATION. Execution of this agreement has been duly authorized and
approved by Pet Quarters' board of directors.
6.7. SUBSIDIARIES. Except as may be set out by attached schedule or in the Form
10-SB, Pet Quarters has no subsidiaries.
6.8. FINANCIAL STATEMENTS. Pet Quarters' audited financial statements dated as
of June 30, 1999 and unaudited financial statements dated as of December 31,
1999, copies of which will have been delivered by Pet Quarters to Wellstone
prior to the Exchange Date (the "Pet Quarters Financial Statements"), fairly
present the financial condition of Pet Quarters as of the dates therein and the
results of its operations for the periods then ended in conformity with
generally accepted accounting principles consistently applied.
6.9. ABSENCE OF UNDISCLOSED LIABILITIES. Except to the extent reflected or
reserved against in the Pet Quarters Financial Statements, Pet Quarters did not
have at that date any liabilities or obligations (secured, unsecured,
contingent, or otherwise) of a nature customarily reflected in a corporate
balance sheet prepared in accordance with generally accepted accounting
principles.
6.10. NO MATERIAL CHANGES. Except as may be set out by attached schedule, there
has been no material adverse change in the business, properties, or financial
condition of Pet Quarters since the date of the most recent Pet Quarters
Financial Statements.
6.11. LITIGATION. Except as may be set out by attached schedule, there is not,
to the knowledge of Pet Quarters, any pending, threatened, or existing
litigation, bankruptcy, criminal, civil, or regulatory proceeding or
investigation, threatened or contemplated against Pet Quarters or against any of
its officers.
6.12. CONTRACTS. Except as may be set out by attached schedule or in the Form
10-SB, Pet Quarters is not a party to any material contract not in the ordinary
course of
<PAGE> 5
business that is to be performed in whole or in part at or after the date of
this agreement.
6.13. TITLE. Except as may be set out by attached schedule, Pet Quarters has
good and marketable title to all the real property and good and valid title to
all other property included as owned property in the Pet Quarters Financial
Statements. Except as set out in the balance sheet thereof, the properties of
Pet Quarters are not subject to any mortgage, encumbrance, or lien of any kind
except minor encumbrances that do not materially interfere with the use of the
property in the conduct of the business of Pet Quarters.
6.14. TAX RETURNS. Except as may be set out by attached schedule, all required
tax returns for federal, state, county, municipal, local, foreign and other
taxes and assessments have been properly prepared and filed by Pet Quarters for
all years for which such returns are due unless an extension for filing any such
return has been filed. Any and all federal, state, county, municipal, local,
foreign and other taxes and assessments, including any and all interest,
penalties and additions imposed with respect to such amounts have been paid or
provided for. The provisions for federal and state taxes reflected in the Pet
Quarters Financial Statements are adequate to cover any such taxes that may be
assessed against Pet Quarters in respect of its business and its operations
during the periods covered by the Pet Quarters Financial Statements and all
prior periods.
6.15. NO VIOLATION. Consummation of the Exchange will not constitute or result
in a breach or default under any provision of any charter, bylaw, indenture,
mortgage, lease, or agreement, or any order, judgment, decree, law, or
regulation to which any property of Pet Quarters is subject or by which Pet
Quarters is bound.
7. CONDUCT OF WELLSTONE PENDING THE CLOSING. Wellstone covenants that between
the date of this agreement and the Closing:
7.1. No change will be made in Wellstone's certificate of incorporation or
bylaws.
7.2. Wellstone will not make any change in its authorized or issued capital
stock, declare or pay any dividend or other distribution or issue, encumber,
purchase, or otherwise acquire any of its capital stock other than as provided
herein.
7.3. Wellstone will use its best efforts to maintain and preserve its business
organization, employee relationships, and goodwill intact, and will not enter
into any material commitment except in the ordinary course of business.
8. CONDUCT PENDING THE CLOSING
Pet Quarters, Wellstone and the Shareholders covenant that between the date of
this agreement and the Closing as to each of them:
8.1. No change will be made in the charter documents or by-laws of Pet Quarters
or Wellstone.
8.2. Wellstone and Pet Quarters will use their best efforts to maintain and
preserve their business organization, employee relationships, and goodwill
intact, and will not enter into any material commitment except in the ordinary
course of business.
8.3. None of the Shareholders will sell, transfer, assign, hypothecate, lien, or
otherwise dispose or encumber the Wellstone shares of common stock owned by
them.
<PAGE> 6
9. CONDITIONS PRECEDENT TO OBLIGATION OF WELLSTONE AND THE SHAREHOLDERS
Wellstone's and the Shareholders' obligation to consummate the Exchange shall be
subject to fulfillment on or before the Closing of each of the following
conditions, unless waived in writing or by acceptance of Pet Quarters' shares by
the Shareholders:
9.1. PET QUARTERS' REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Pet Quarters set forth herein shall be true and correct at the
Closing as though made at and as of that date, except as affected by
transactions contemplated hereby.
9.2. PET QUARTERS' COVENANTS. Pet Quarters shall have performed all covenants
required by this agreement to be performed by it on or before the Closing.
9.3. BOARD OF DIRECTOR APPROVAL. This Agreement shall have been approved by the
Board of Directors of Pet Quarters.
9.4. SUPPORTING DOCUMENTS OF PET QUARTERS. Pet Quarters shall have delivered to
Wellstone and the Shareholders supporting documents in form and substance
reasonably satisfactory to Wellstone and the Shareholders, to the effect that:
(a) Pet Quarters is a corporation duly organized, validly existing, and in good
standing;
(b) Pet Quarters' authorized capital stock is as set forth herein;
(c) Certified copies of the resolutions of the board of directors of Pet
Quarters authorizing the execution of this agreement and the consummation
hereof;
(d) Secretary's certificate of incumbency of the officers and directors of Pet
Quarters;
(e) Pet Quarters' Financial Statements and unaudited financial statement from
the date of Pet Quarters'
Financial Statements to close of most recent fiscal quarter; and
(f) Any document as may be specified herein or required to satisfy the
conditions, representations and warranties enumerated elsewhere herein.
10. CONDITIONS PRECEDENT TO OBLIGATION OF PET QUARTERS
Pet Quarters' obligation to consummate the Exchange shall be subject to
fulfillment on or before the Closing of each of the following conditions, unless
waived in writing or by acceptance of Wellstone's shares by Pet Quarters:
10.1. WELLSTONE'S AND THE SHAREHOLDERS' REPRESENTATIONS AND WARRANTIES. The
representations and warranties of Wellstone and the Shareholders set forth
herein shall be true and correct at the Closing as though made at and as of that
date, except as affected by transactions contemplated hereby.
10.2. WELLSTONE'S AND THE SHAREHOLDERS' COVENANTS. Wellstone and the
Shareholders shall have performed all covenants required by this agreement to be
performed by them on or before the Closing.
10.3. BOARD OF DIRECTOR APPROVAL. This Agreement shall have been approved by the
Board of Directors of Wellstone.
10.4. SHAREHOLDER EXECUTION. This Agreement shall have been executed by all of
the Shareholders of Wellstone.
10.5. SUPPORTING DOCUMENTS OF WELLSTONE. Wellstone shall have delivered to Pet
Quarters supporting documents in form and substance reasonably satisfactory to
Pet Quarters to the effect that:
(a) Wellstone is a corporation duly organized, validly existing, and in good
standing;
(b) Wellstone's capital stock is as set forth herein;
(c) Certified copies of the resolutions of the board of directors of Wellstone
authorizing the execution of this agreement and the consummation hereof;
(d) Secretary's certificate of incumbency of the officers and directors of
Wellstone;
<PAGE> 7
(e) Wellstone's Financial Statements and unaudited financial statements for the
period from the date of the Wellstone's Financial Statements to the close of the
most recent fiscal quarter; and
(f) Any document as may be specified herein or required to satisfy the
conditions, representations and warranties enumerated elsewhere herein.
11. SHAREHOLDERS' REPRESENTATIVE. The Shareholders hereby irrevocably designate
and appoint Cassidy & Associates, Washington, D.C. as their agent and attorney
in fact ("Shareholders' Representative") with full power and authority until the
Closing to execute, deliver, and receive on their behalf all notices, requests,
and other communications hereunder; to fix and alter on their behalf the date,
time, and place of the Closing; to waive, amend, or modify any provisions of
this agreement, and to take such other action on their behalf in connection with
this agreement, the Closing, and the transactions contemplated hereby as such
agent or agents deem appropriate; provided, however, that no such waiver,
amendment, or modification may be made if it would decrease the number of shares
to be issued to the Shareholders hereunder or increase the extent of their
obligation to indemnify Pet Quarters hereunder.
12. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Wellstone, the Shareholders and Pet Quarters set out herein shall
survive the Closing.
13. ARBITRATION
13.1. SCOPE. The parties hereby agree that any and all claims (except only for
requests for injunctive or other equitable relief) whether existing now, in the
past or in the future as to which the parties or any affiliates may be adverse
parties, arising out of or in any way based upon this agreement or the
transactions to which it relates (regardless of the cause of action), will be
resolved by arbitration before the American Arbitration Association within the
District of Columbia.
13.2. CONSENT TO JURISDICTION, SITUS AND JUDGEMENT. The parties hereby
irrevocably consent to the jurisdiction of the American Arbitration Association
and the situs of the arbitration (and any requests for injunctive or other
equitable relief) within the District of Columbia. Any award in arbitration may
be entered in any domestic or foreign court having jurisdiction over the
enforcement of such awards.
13.3. APPLICABLE LAW. The law applicable to the arbitration and this agreement
shall be that of the State of Delaware, determined without regard to its
provisions which would otherwise apply to a question of conflict of laws.
13.4. DISCLOSURE AND DISCOVERY. The arbitrator may, in its discretion, allow the
parties to make reasonable disclosure and discovery in regard to any matters
which are the subject of the arbitration and to compel compliance with such
disclosure and discovery order. The arbitrator may order the parties to comply
with all or any of the disclosure and discovery provisions of the Federal Rules
of Civil Procedure, as they then exist, as may be modified by the arbitrator
consistent with the desire to simplify the conduct and minimize the expense of
the arbitration.
13.5. RULES OF LAW. Regardless of any practices of arbitration to the contrary,
the arbitrator will apply the rules of contract and other law of the
jurisdiction whose law applies to the arbitration so that the decision of the
arbitrator will be, as much as possible, the same as if the dispute had been
determined by a court of competent jurisdiction.
<PAGE> 8
13.6. FINALITY AND FEES. Any award or decision by the American Arbitration
Association shall be final, binding and non-appealable except as to errors of
law or the failure of the arbitrator to adhere to the arbitration provisions
contained in this agreement. Each party to the arbitration shall pay its own
costs and counsel fees except as specifically provided otherwise in this
agreement.
13.7. MEASURE OF DAMAGES. In any adverse action, the parties shall restrict
themselves to claims for compensatory damages and/or securities issued or to be
issued and no claims shall be made by any party or affiliate for lost profits,
punitive or multiple damages.
13.8. COVENANT NOT TO SUE. The parties covenant that under no conditions will
any party or any affiliate file any action against the other (except only
requests for injunctive or other equitable relief) in any forum other than
before the American Arbitration Association, and the parties agree that any such
action, if filed, shall be dismissed upon application and shall be referred for
arbitration hereunder with costs and attorney's fees to the prevailing party.
13.9. INTENTION. It is the intention of the parties and their affiliates that
all disputes of any nature between them, arising out of or in any way based upon
this agreement or the transactions to which it relates (regardless of the cause
of action), be decided by arbitration as provided herein and that no party or
affiliate be required to litigate in any other forum any disputes or other
matters except for requests for injunctive or equitable relief. This agreement
shall be interpreted in conformance with this stated intent of the parties and
their affiliates.
13.10. SURVIVAL. The provisions for arbitration contained herein shall survive
the termination of this agreement for any reason.
14. GENERAL PROVISIONS.
14.1. FURTHER ASSURANCES. From time to time, each party will execute such
additional instruments and take such actions as may be reasonably required to
carry out the intent and purposes of this agreement.
14.2. WAIVER. Any failure on the part of either party hereto to comply with any
of its obligations, agreements, or conditions hereunder may be waived in writing
by the party to whom such compliance is owed.
14.3. BROKERS. Each party agrees to indemnify and hold harmless the other party
against any fee, loss, or expense arising out of claims by brokers or finders
employed or alleged to have been employed by the indemnifying party.
14.4. NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed to have been given if delivered in person or sent by
prepaid first-class certified mail, return receipt requested, or recognized
commercial courier service, as follows: If to Pet Quarters, to: Pet Quarters,
Inc. 720 East Front Street Lonoke, Arkansas 72086 If to Wellstone, to: Wellstone
Acquisition Corporation 1504 R Street, N.W. Washington, D.C. 20009 If to the
Shareholders, to: Cassidy & Associates 1504 R Street N.W. Washington, D.C. 20009
14.5. GOVERNING LAW. This agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Delaware.
<PAGE> 9
14.6. ASSIGNMENT. This agreement shall inure to the benefit of, and be binding
upon, the parties hereto and their successors and assigns; provided, however,
that any assignment by either party of its rights under this agreement without
the written consent of the other party shall be void.
14.7. COUNTERPARTS. This agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Signatures sent by
facsimile transmission shall be deemed to be evidence of the original execution
thereof.
14.8. EXCHANGE AGENT AND CLOSING DATE. The Exchange Agent shall be Cassidy &
Associates, Washington, D.C. The Closing shall take place on March 6, 2000
unless extended by mutual consent of the parties.
14.9. REVIEW OF AGREEMENT. Each party acknowledges that it has had time to
review this agreement and, as desired, consult with counsel. In the
interpretation of this agreement, no adverse presumption shall be made against
any party on the basis that it has prepared, or participated in the preparation
of, this agreement.
14.10. SCHEDULES. All schedules attached hereto, if any, shall be acknowledged
by each party by signature or initials thereon.
14.11. EFFECTIVE DATE. This effective date of this agreement shall be March 6,
2000.
SIGNATURE PAGE TO AGREEMENT AND PLAN OF REORGANIZATION AMONG PET QUARTERS,
WELLSTONE AND THE SHAREHOLDERS OF
WELLSTONE
IN WITNESS WHEREOF, the parties have executed this agreement.
PET QUARTERS, INC.
By
-----------------------------------
WELLSTONE ACQUISITION CORPORATION
By
-----------------------------------
SHAREHOLDERS:
TPG CAPITAL CORPORATION
By
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Exhibit A
Number of Number of Wellstone Shares Pet Quarters Name of To Be Shares To Be
Shareholder Address Transferred Received
5,000,000 130,208 TPG Capital Corporation, 1504 R Street, N.W. Washington,
D.C. 20009
