AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (this "Agreement") is entered
into this 26th day of September, 2000, by and among GO ONLINE NETWORKS
CORPORATION, a Delaware corporation ("GONT"), WESTLAKE CAPITAL CORP., a Colorado
corporation and a wholly-owned subsidiary of GONT ("Westlake"), and the
"Surviving Corporation"), and AMER SOFTWARE, INC., a Nevada corporation
("Amer").
RECITALS
A. Westlake is a wholly-owned subsidiary of GONT.
B. Subject to and in accordance with the terms and conditions of this
Agreement and pursuant to the Certificate of Merger attached hereto as Exhibit A
("Certificate of Merger"), the parties intend that Amer will merge with and into
Westlake (the "Merger"), whereby at the Effective Time of the Merger, all of the
Amer Common Stock will be converted into one million three hundred eighty-eight
thousand eight hundred eighty-eight (1,388,888) shares of GONT Common Stock
C. For federal income tax purposes, it is intended that the Mergers
shall qualify as a tax free reorganization within the meaning of '368(a)(2)(D)
of the Code.
D. The parties hereto desire to set forth certain representations,
warranties and covenants made by each to the other as an inducement to the
consummation of the Mergers.
AGREEMENT
NOW, THEREFORE, in reliance on the foregoing recitals and in and for the
consideration and mutual covenants set forth herein, the parties agree as
follows:
10 CERTAIN DEFINITIONS.
1.1 "GONT COMMON STOCK" shall mean all of the outstanding shares of
Common Stock of GONT.
1.2 "GONT DISCLOSURE SCHEDULE" shall mean the disclosure schedule
provided to Amer by GONT and Westlake disclosing such items and matters as are
required to be disclosed under this Agreement.
1.3 "GONT FINANCIAL STATEMENTS" shall mean GONT's audited balance sheet
as of December 31, 1999, and statements of operations, stockholder's equity and
cash flow for the twelve (12) month period then ended and GONT's unaudited
balance sheet as of June 30, 2000 and statements of operations, stockholder's
equity and cash flow for the six month period then ended.
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1.4 "GONT PRODUCTS/SERVICES" shall mean all products or services which
have been, or are being, marketed by GONT, or are currently under development,
and all patents, patent applications, trade secrets, copyrights, trademarks,
trade names and other proprietary rights related to such products or services.
1.5 "AFFILIATE" shall have the meaning set forth in the rules and
regulations promulgated by the Commission pursuant to the Securities Act.
1.6 "CLOSING" shall mean the closing of the transactions contemplated
by this Agreement.
1.7 "CLOSING DATE" shall mean the date of the Closing.
1.8 "CODE" shall mean the United States Internal Revenue Code of 1986,
as amended.
1.9 "COMMISSION" shall mean the United States Securities and Exchange
Commission.
1.10 "DISSENTING SHARES" shall mean those shares held by holders who
perfect their appraisal rights under the applicable state laws.
1.11 "EFFECTIVE TIME" shall mean the date and time of the effectiveness
of the Merger under Nevada and Colorado law.
1.12 "GAAP" shall mean generally accepted accounting principles.
1.13 "AMER COMMON STOCK" shall mean all the outstanding shares of
common stock of Amer.
1.14 "AMER DISCLOSURE SCHEDULE" shall mean the disclosure schedule
provided to GONT and Westlake by Amer disclosing such items and matters as are
required to be disclosed under this Agreement.
1.15 "AMER FINANCIAL STATEMENTS" shall mean Amer's audited balance
sheet as of December 31, 1999, and statements of operations, stockholders'
equity and cash flow for the twelve (12) month period then-ended and Amer's
unaudited balance sheet as of June 30, 2000, and statements of operations,
stockholders' equity and cash flow for the six (6) month period then-ended.
1.16 "AMER PRODUCTS/SERVICES" shall mean all products or services which
have been, or are being, marketed by Amer or are currently under development,
and all trade secrets, copyrights, trademarks, trade names and other proprietary
rights related to such products or services.
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1.17 "MATERIAL ADVERSE EFFECT" shall mean an effect on the operations,
assets or financial condition of an entity considered as a whole which would
lead a reasonable business person to conclude that entering into the Merger
would not be advisable in light of the effect.
1.18 "SECURITIES ACT" shall mean the Securities Act of 1933, as
amended, or any similar federal statute and the rules and regulations
thereunder, all as the same shall be in effect at the time.
1.19 "SUBSIDIARY" OR "SUBSIDIARIES" shall mean all corporations,
trusts, partnerships, associations, joint ventures or other Persons, as defined
below, of which a corporation or any other Subsidiary of such corporation owns
not less than twenty percent (20%) of the voting securities or other equity or
of which such corporation or any other Subsidiary of such corporation possesses,
directly or indirectly, the power to direct or cause the direction of the
management and policies, whether through ownership of voting shares, management
contracts or otherwise. "Person" means any individual, corporation, trust,
association, partnership, proprietorship, joint venture or other entity.
1.20 "TRANSACTION DOCUMENTS" shall mean all documents or agreements
attached as an exhibit or schedule hereto, and set forth on the Table of
Contents.
20 PLAN OF REORGANIZATION.
2.1 THE MERGER. Subject to the terms and conditions of this Agreement
and the Certificate of Merger, Amer shall be merged with and into Westlake in
accordance with the applic-able provisions of the laws of the States of Nevada
and Colorado, and with the terms and conditions of this Agreement and the
Certificates of Merger set forth as Exhibits A and, B so that:
(A) At the Effective Time (as defined in Section 2.5 (below)), Amer
shall be merged with and into Westlake. As a result of the Merger, the separate
corporate existence of Amer shall cease, and Westlake shall continue as the
surviving corporation, and shall succeed to and assume all of the rights and
obligations of Amer (which shall include the rights and obligations of GONT) in
accordance with the laws of Colorado.
(B) The Certificate of Incorporation and Bylaws of Westlake in effect
immediately prior to the Effective Time shall be the Certificate of
Incorporation and Bylaws, respectively, of the Surviving Corporation after the
Effective Time unless and until further amended as provided by law.
2.2 CONVERSION OF SHARES. All of the shares of Amer common stock,
issued and outstanding immediately prior to the Effective Time will, by virture
of the Merger, and at the Effective Time, and without further action on the part
of the shareholders of Amer, be converted into one million three hundred
eighty-eight thousand eight hundred and eighty-eight (1,388,888) shares of fully
paid and nonassessable shares of GONT common stock.
2.3 FRACTIONAL SHARES. No fractional shares of GONT common stock will
be issued in connection with the Subsequent Merger.
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2.4 THE CLOSING. Subject to termination of this Agreement as provided
in Section 10 (below), the Closing shall take place at the offices of Cutler Law
Group, 610 Newport Center Drive, Suite 800, Newport Beach, CA 92660, as soon as
possible upon the satisfaction or waiver of all conditions set forth in Sections
8, 9 and 10 hereof, or such other time and place as is mutually agreeable to the
parties. The Closing shall be no later than the time following the clearance
of GONT's Form S-4 filed in connection with this Agreement.
2.5 EFFECTIVE TIME. Simultaneously with the Closing, the Certificate
of Merger for the Merger shall be filed in the office of the Secretary of State
of the State of Nevada and the Secretary of State of the State of Colorado. The
Merger shall become effective immediately upon the filing of the Certificate of
Merger with such offices.
2.6 TAX FREE REORGANIZATION. The parties intend to adopt this
Agreement as a tax-free plan of reorganization and to consummate the Mergers in
accordance with the provisions of '368(a)(2)(D) of the Code. Each party agrees
that it will not take or assert any position on any tax return, report or
otherwise which is inconsistent with the qualification of the Mergers as a
reorganization within the meaning of '368(a) of the Code. Except for cash paid
in lieu of fractional shares, no consideration that could constitute "other
property" within the meaning of '356 of the Code is being paid by GONT for the
Amer Common Stock. In addition, GONT and Westlake represent now, and as of the
Closing Date, that they presently intend to continue Amer's historic business or
use a significant portion of Amer's business assets in a business.
30 REPRESENTATIONS AND WARRANTIES OF GONT AND WESTLAKE. Except as
otherwise set forth in the GONT Disclosure Schedule attached hereto, GONT and
Westlake jointly and severally represent and warrant to Amer as set forth below.
No fact or circumstance disclosed shall constitute an exception to these
representations and warranties unless such fact or circumstance is set forth in
the GONT Disclosure Schedule or such supplements thereto as may mutually be
agreed upon in writing by GONT, Westlake and Amer.
3.1 ORGANIZATION. GONT and Westlake are corporations duly organized,
validly existing and in good standing under the laws of the state of
incorporation of such entity and have the corporate power and authority to carry
on their respective businesses as it is now being conducted. GONT and Westlake
are duly qualified or licensed to do business and are in good standing in each
jurisdiction in which the nature of their respective businesses or properties
makes such qualification or licensing necessary except where the failure to be
so qualified would not have a Material Adverse Effect on GONT and Westlake.
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3.2 CAPITALIZATION. The authorized capital of GONT will consist, prior
to the Closing, of 100,000,000 shares of Common Stock, of which 83,960,343
shares were issued and outstanding at June 30, 2000. GONT is the record and
beneficial owner of all shares of Westlake Common Stock, free and clear of any
and all claims, liens, encumbrances or security interests. All of the issued
and outstanding shares of GONT and Westlake capital stock have been duly
authorized, validly issued, are fully paid and nonassessable, and such capital
stock has been issued in full compliance with all applicable federal and state
securities laws. None of GONT's or Westlake's issued and outstanding shares of
capital stock are subject to repurchase or redemption rights.
3.3 POWER, AUTHORITY AND VALIDITY. GONT and Westlake have the
corporate power to enter into this Agreement and the other Transaction Documents
to which they are parties and to carry out their obligations hereunder and
thereunder. The execution and delivery of this Agreement and the Transaction
Documents and the consummation of the transactions contemplated hereby and
thereby have been duly authorized by the Boards of Directors of GONT and
Westlake and, except for approval of the shareholders of GONT, no other
corporate proceedings on the part of GONT or Westlake are necessary to authorize
this Agreement, the other Transaction Documents and the transactions
contemplated herein and therein. GONT and Westlake are not subject to, or
obligated under, any charter, bylaw or contract provision or any license,
franchise or permit, or subject to any order or decree, which would be breached
or violated by or in conflict with its executing and carrying out this Agreement
and the transactions contemplated hereunder and under the Transaction Documents.
Except for (i) the filing of the Certificate of Merger with the Secretary of
State of the State of Nevada and appropriate documents with the relevant
authorities of other states in which GONT is qualified to do business, (ii) the
filing of the Certficate of Merger with the Secretary of State of the State of
Colorado and (ii) filings under applicable securities laws, no consent of any
person who is a party to a contract which is material to GONT's business, nor
consent of any governmental authority, is required to be obtained on the part of
GONT to permit the transactions contemplated herein and to permit GONT to
continue the business activities of GONT as previously conducted by GONT without
a Material Adverse Effect. This Agreement is, and the other Transaction
Documents when executed and delivered by GONT and Westlake shall be, the valid
and binding obligations of GONT and Westlake, enforceable in accordance with
their respective terms.
3.4 FINANCIAL STATEMENTS.
(A) GONT has made available to Amer copies of the GONT Financial
Statements.
(B) The GONT Financial Statements are complete and in accordance with
the books and records of GONT and present fairly the financial position of GONT
as of its historical dates. The GONT Financial Statements have been prepared in
accordance with GAAP, applied on a basis consistent with prior periods.
3.5 TAX MATTERS.
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(A) GONT has fully and timely, properly and accurately filed all tax
returns and reports required to be filed by it (or extensions thereof),
including all federal, foreign, state and local tax returns and estimates for
all years and periods (and portions thereof) for which any such returns, reports
or estimates were due. All such returns, reports and estimates were prepared in
the manner required by applicable law. All income, sales, use, occupation,
property or other taxes or assessments due from GONT have been paid. There are
no pending assessments, asserted deficiencies or claims for additional taxes
that have not been paid. The reserves for taxes, if any, reflected on the GONT
Financial Statements are adequate and there are no tax liens on any property or
assets of GONT. There have been no audits or examinations of any tax returns or
reports by any applicable governmental agency. No state of facts exists or has
existed which would constitute grounds for the assessment of any penalty or of
any further tax liability beyond that shown on the respective tax reports,
returns or estimates. There are no outstanding agreements or waivers extending
the statutory period of limitation applicable to any federal, state or local
income tax return or report for any period.
(B) All taxes which GONT has been required to collect or withhold have
been duly withheld or collected and, to the extent required, have been paid to
the proper taxing authority.
(C) GONT is not a party to any tax-sharing agreement or similar
arrangement with any other party.
(D) At no time has GONT been included in the federal consolidated
income tax return of any affiliated group of corporations.
(E) No payment which GONT is obliged to pay to any director, officer,
employee or independent contractor pursuant to the terms of an employment
agree-ment, severance agreement or otherwise will constitute an excess parachute
payment as defined in '280G of the Code.
(F) GONT is not currently under any contractual obligation to pay any
tax obligations of, or with respect to any transaction relating to, any other
person or to indemnify any other person with respect to any tax.
3.6 TAX-FREE REORGANIZATION.
(A) Neither GONT nor Westlake has taken or agreed to take any action
that would prevent the Mergers from constituting a reorganization qualifying
under the provi-sions of '368(a) of the Code.
(B) Neither GONT nor Westlake is an investment company as defined in
''368(a)(2)(F)(iii) and (iv) of the Code.
3.7 NO BROKERS. Neither GONT nor Westlake is obligated for the payment
of fees or expenses of any broker or finder in connection with the origin,
negotiation or execution of this Agreement or the Certificate of Merger or in
connection with any transaction contemplated hereby or thereby.
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40 REPRESENTATIONS AND WARRANTIES OF AMER, Except as otherwise set
forth in the Amer Disclosure Schedule attached hereto, Amer jointly and
severally represent and warrant to GONT as set forth below. No fact or
circumstance disclosed to GONT shall constitute an exception to these
representations and warranties unless such fact or circumstance is set forth in
the Amer Disclosure Schedule or such supplements thereto as may mutually be
agreed upon in writing by Amer and GONT.
4.1 ORGANIZATION. Amer is a corporations duly organized, validly
existing and in good standing under the laws of the state of incorporation of
such entity and have the corporate power and authority to carry on their
respective businesses as it is now being conducted. Amer is duly qualified or
licensed to do business and are in good standing in each jurisdiction in which
the nature of its business or properties makes such qualification or licensing
necessary except where the failure to be so qualified would not have a Material
Adverse Effect on Amer. True and complete copies of Amer's Articles of
Incorporation and Bylaws, as in effect on the date hereof and as to be in effect
as of the Closing, have been provided to GONT or its representatives.
4.2 CAPITALIZATION.
(A) The authorized capital of Amer will consist, prior to the Closing,
of 100,000,000 shares of Common Stock, of which approximately 5,710,194 shares
are issued and outstanding as of the date hereof. All of the Amer Common Stock
is free and clear of any and all claims, liens, encumbrances or security
interests.
(B) Except as set forth in the Amer Disclosure Schedule, Amer has no
outstanding preemptive rights, subscription rights, options, warrants, rights to
convert or exchange, capital stock equivalents, or other rights to purchase or
otherwise acquire any Amer capital stock or other securities.
(C) All of the issued and outstanding shares of Amer capital stock have
been duly authorized, validly issued, are fully paid and nonassessable, and such
capital stock has been issued in full compliance with all applicable federal and
state securities laws. None of Amer's issued and outstanding shares of capital
stock are subject to repurchase or redemption rights.
(D) Except for any restrictions imposed by applicable state and federal
securities laws, there is no right of first refusal, option, or other
restriction on transfer applicable to any shares of Amer's capital stock.
(E) Amer is not under any obligation to register under the Securities
Act any shares of its capital stock or any other of its securities that might be
issued in the future if the Merger were not consummated.
(F) Amer is not a party or subject to any agreement or understanding
and there is no agreement or understanding between or among any persons that
affects or relates to the voting or giving of written consent with respect to
any security.
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4.3 POWER, AUTHORITY AND VALIDITY. Amer has the corporate power to
enter into this Agreement and the other Transaction Documents to which it is a
party and to carry out its obligations hereunder and thereunder. The execution
and delivery of this Agreement and the Transaction Documents and the
consummation of the transactions contemplated hereby and thereby have been duly
authorized by the Boards of Directors of Amer and no other corporate proceedings
on the part of Amer are necessary to authorize this Agreement, the other
Transaction Documents and the transactions contemplated herein and therein.
Amer is not subject to, or obligated under, any charter, bylaw or contract
provision or any license, franchise or permit, or subject to any order or
decree, which would be breached or violated by or in conflict with its executing
and carrying out this Agreement and the transactions contemplated hereunder and
under the Transaction Documents. Except for (i) the filing of the Certificate
of Merger with the Secretary of State of the State of Nevada and appropriate
documents with the relevant authorities of other states in which Amer is
qualified to do business, (ii) the filing of the Certficate of Merger with the
Secretary of State of the State of Colorado and (ii) filings under applicable
securities laws, no consent of any person who is a party to a contract which is
material to Amer's business, nor consent of any governmental authority, is
required to be obtained on the part of Amer to permit the transactions
contemplated herein and to permit Amer to continue the business activities of
Amer as previously conducted by Amer without a Material Adverse Effect. This
Agreement is, and the other Transaction Documents when executed and delivered by
Amer shall be, the valid and binding obligations of Amer, enforceable in
accordance with their respective terms.
4.4 FINANCIAL STATEMENTS.
(A) Amer has delivered to GONT copies of the Amer Financial Statements.
(B) The Amer Financial Statements are complete and in accordance with
the books and records of Amer and present fairly the financial position of Amer
as of its historical dates. The Amer Financial Statements have been prepared in
accordance with GAAP, applied on a basis consistent with prior periods. Except
and to the extent reflected or reserved against in such balance sheets
(including the notes thereto), Amer does not have, as of the dates of such
balance sheets, any liabilities or obligations (absolute or contingent) of a
nature required or customarily reflected in a balance sheet (or the notes
thereto) prepared in accordance with GAAP. The reserves, if any, reflected on
the Amer Financial Statements are adequate in light of the contingencies with
respect to which they are made.
(C) Amer has no debt, liability, or obligation of any nature, whether
accrued, absolute, contingent, or otherwise, and whether due or to become due,
that is not reflected or reserved against in the Amer Financial Statements,
except for those (i) that may have been incurred after the date of the Amer
Financial Statements; or (ii) that are not required by GAAP to be included in a
balance sheet or the notes thereto, except that Amer has not established any
reserves with respect to the costs and fees associated with this Agreement, the
other Transaction Documents, and the transactions contemplated hereby and
thereby. All material debts, liabilities, and obligations incurred after the
date of the Amer Financial Statements were incurred in the ordinary course of
business, and are usual and normal in amount both individually and in the
aggregate.
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4.5 TAX MATTERS.
(A) Amer has fully and timely, properly and accurately filed all tax
returns and reports required to be filed by it (or extensions thereof),
including all federal, foreign, state and local tax returns and estimates for
all years and periods (and portions thereof) for which any such returns, reports
or estimates were due. All such returns, reports and estimates were prepared in
the manner required by applicable law. All income, sales, use, occupation,
property or other taxes or assessments due from Amer have been paid. There are
no pending assessments, asserted deficiencies or claims for additional taxes
that have not been paid. The reserves for taxes, if any, reflected on the Amer
Financial Statements are adequate and there are no tax liens on any property or
assets of Amer. There have been no audits or examinations of any tax returns or
reports by any applicable governmental agency. No state of facts exists or has
existed which would constitute grounds for the assessment of any penalty or of
any further tax liability beyond that shown on the respective tax reports,
returns or estimates. There are no outstanding agreements or waivers extending
the statutory period of limitation applicable to any federal, state or local
income tax return or report for any period.
(BI All taxes which Amer has been required to collect or withhold have
been duly withheld or collected and, to the extent required, have been paid to
the proper taxing authority.
(CI Amer is not a party to any tax-sharing agreement or similar
arrangement with any other party.
(DI At no time has Amer been included in the federal consolidated
income tax return of any affiliated group of corporations.
(EI No payment which Amer is obliged to pay to any director, officer,
employee or independent contractor pursuant to the terms of an employment
agree-ment, severance agreement or otherwise will constitute an excess parachute
payment as defined in '280G of the Code.
(FI Amer is not currently under any contractual obligation to pay any
tax obligations of, or with respect to any transaction relating to, any other
person or to indemnify any other person with respect to any tax.
4.6 TAX-FREE REORGANIZATION.
(AI Amer has not taken or agreed to take any action that would prevent
the Merger from constituting a reorganization qualifying under the provi-sions
of '368(a) of the Code.
(BI Amer is not an investment company as defined in ''368(a)(2)(F)(iii)
and (iv) of the Code.
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4.7 ABSENCE OF CERTAIN CHANGES OR EVENTS. Since December 31, 1999,
Amer has not:
(AI suffered any material adverse change in its financial condition or
in the operations of its business, nor any material adverse changes in its
balance sheet, (with the Amer Financial Statements and any subsequent balance
sheet analyzed as if each had been prepared according to GAAP), including but
not limited to cash distributions or material decreases in the net assets of
Amer;
(BI suffered any damage, destruction or loss, whether covered by
insurance or not, materially and adversely affecting its properties or business;
(CI granted or agreed to make any increase in the compensation payable
or to become payable by it to its officers or employees, except those occurring
in the ordinary course of business;
(DI declared, set aside or paid any dividend or made any other
distribution on or in respect of the shares of its capital stock or declared any
direct or indirect redemption, retirement, purchase or other acquisition by it
of such shares;
(EI issued any shares of its capital stock or any warrants, rights,
options or entered into any commitment relating to its shares except for the
issuance of its pursuant to the exercise of outstanding options;
(FI made any change in the accounting methods or practices it follows,
whether for general financial or tax purposes, or any change in depreciation or
amorti-zation policies or rates adopted therein;
(GI sold, leased, abandoned or otherwise disposed of any real property
or any machinery, equipment or other operating property other than in the
ordinary course of business;
(HI sold, assigned, transferred, licensed or otherwise disposed of any
patent, trademark, trade name, brand name, copyright (or pending application for
any patent, trademark or copyright) invention, work of authorship, process,
know-how, formula or trade secret or interest thereunder or other intangible
asset except in the ordinary course of its business;
(II suffered any labor dispute;
(JI engaged in any activity or entered into any material commitment or
transaction (including without limitation any borrowing or capital expenditure)
other than in the ordinary course of business;
(KI incurred any liabilities except in the ordinary course of business
and consistent with past practice which would be required to be disclosed in
financial statements prepared in accordance with GAAP;
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(LI permitted or allowed any of its property or assets to be subjected
to any mortgage, deed of trust, pledge, lien, security interest or other
encumbrance of any kind, except those permitted under Section 4.8 hereof, other
than any purchase money security interests incurred in the ordinary course of
business;
(MI made any capital expenditure or commitment for additions to
property, plant or equipment in excess of One Thousand Dollars ($1,000);
(NI paid, loaned or advanced any amount to, or sold, transferred or
leased any properties or assets to, or entered into any agreement or arrangement
with any of its Affiliates, officers, directors or stockholder or any Affiliate
or associate of any of the foregoing;
(OI made any amendment to or terminated any agreement which, if not so
amended or terminated, would be required to be disclosed on the Amer Disclosure
Schedule; or
(PI agreed to take any action outside of its ordinary course of
business or which would constitute a breach of any of the representations
contained in this Agreement.
4.8 TITLE AND RELATED MATTERS. Amer has good and marketable title to
all the properties, interests in properties and assets, real and personal,
reflected in the Amer Financial Statements or acquired after the date of the
Amer Financial Statements (except properties, interests in properties and assets
sold or otherwise disposed of since the date of the Amer Financial Statements in
the ordinary course of business), free and clear of all mortgages, liens,
pledges, charges or encumbrances of any kind or character, except the lien of
current taxes not yet due and payable and except for liens which in the
aggregate do not secure more than One Thousand Dollars ($1,000) in liabilities.
The equipment of Amer used in the operation of its business is in good operating
condition and repair. All real or personal property leases to which Amer is a
party are valid, binding, enforceable obligations of Amer effective in
accordance with their respective terms. There is not under any of such leases
any existing material default or event of default or event which, with notice or
lapse of time or both, would constitute a material default. The Amer Disclosure
Schedule contains a description of all real and personal property leased or
owned by Amer, identifying such property and, in the case of real property,
stating the monthly rental due, term of lease and square feet leased. True and
correct copies of each of Amer's leases have been provided to GONT or its
representatives.
4.9 PROPRIETARY RIGHTS.
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(AI Amer owns all right, title and interest in and to, or valid
licenses for use of, all patents, copyrights, technology, software, software
tools, know-how, processes, trade secrets, trademarks, service marks, trade
names and other proprietary rights used in or necessary for the conduct of
Amer's business as conducted to the date hereof or contemplated, including,
without limitation, the technology and all proprietary rights developed or
discovered or used in connection with or contained in the Amer
Products/Services, free and clear of all liens, claims and encumbrances
(including without limitation distribution rights) (all of which are referred to
as "Amer Proprietary Rights") and Amer has the right to transfer all such rights
to Amer as contemplated hereby. The foregoing representation as it relates to
Amer Third-Party Technology (as hereinafter defined) is limited to Amer's
interest pursuant to the Amer Third-Party Licenses (as hereinafter defined), all
of which are valid and enforceable and in full force and effect and which grant
Amer such rights to the Amer Third-Party Technology as are employed in or
necessary to the business of Amer as conducted or proposed to be conducted. The
Amer Disclosure Schedule contains an accurate and complete description of (i)
all patents, trademarks (with separate listings of registered and unregistered
trademarks), trade names, and registered copyrights in or related to the Amer
Products/ Services, all applications and registration statements therefor, and a
list of all licenses and other agreements relating thereto; and (ii) a list of
all licenses and other agreements with third parties (the "Amer Third-Party
Licenses") relating to any inventions, technology, know-how, or processes that
Amer is licensed or otherwise authorized by such third parties to use, market,
distribute or incorporate into products distributed by Amer (such software,
inventions, technology, know-how and processes are collectively referred to as
the "Amer Third-Party Technology"). Amer's trademark or trade name
registrations related to the Amer Products/Services and all of Amer's copyrights
in any of the Amer Products/Services are valid and in full force and effect, and
consummation of the transactions contemplated hereby will not alter or impair
any such rights. No claims have been asserted against Amer (and Amer is not
aware of any claims which are likely to be asserted against it or which have
been asserted against others) by any person challenging Amer's use, possession,
manufacture, sale, provision or distribution of the Amer Products/Services under
any patents, trademarks, trade names, copyrights, trade secrets, technology,
know-how or processes utilized by Amer (including, without limitation, the Amer
Third-Party Technology) or challenging or question-ing the validity or
effectiveness of any license or agreement relating thereto (including, without
limitation, the Amer Third-Party Licenses). There is no valid basis for any
claim of the type specified in the immediately preceding sentence which could in
any material way relate to or interfere with the currently planned continued
enhancement and exploitation by Amer of any of the Amer Products/Services. None
of the Amer Products/Services nor the use or exploita-tion of any patents,
trademarks, trade names, copyrights, technology, know-how or processes by Amer
in its current business infringes on the rights of, constitutes
misappro-priation of, or in any way involves unfair competition with respect to,
any proprietary information or intangible property right of any third person or
entity, including without limitation any patent, trade secret, copyright,
trademark or trade name.
(BI No employee of Amer is in violation of any term of any employment
contract, patent disclosure agreement or any other contract or agreement
relating to the relationship of any such employee with Amer or, to Amer's actual
knowledge, any other party because of the nature of the business conducted by
Amer or proposed to be conducted by Amer.
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(CI Each person presently or previously employed by Amer (including
independent contractors, if any) with access to confidential information has
executed a confidentiality and non-disclosure agreement pursuant to the form of
agreement previously provided to Amer or its representatives. Such
confidentiality and non-disclosure agreements constitute valid and binding
obligations of Amer and such person, enforceable in accordance with their
respective terms. Neither the execution or delivery of such agreements, nor the
carrying on of their business as employees by such persons, nor the conduct of
their business as currently anticipated, will conflict with or result in a
breach of the terms, conditions or provisions of or constitute a default under
any contract, covenant or instrument under which any of such persons is
obligated.
(DI No product or service liability or warranty claims which could
exceed One Thousand Dollars ($1,000) have been communicated to, or threatened
against, Amer nor, to Amer's actual knowledge, is there any specific situation,
set of facts or occurrence that provides a basis for such claim.
4.10 EMPLOYEE BENEFIT PLANS. There is no unfunded prior service cost
with respect to any bonus, deferred compensation, pension, profit-sharing,
retirement, stock purchase, stock option, or other employee benefit or fringe
benefit plans, whether formal or informal, maintained by Amer. Each bonus,
deferred compensation, pension, profit-sharing, retirement, stock purchase,
stock option, and other employee benefit or fringe benefit plans, whether formal
or informal, maintained by Amer conforms to all applicable requirements of the
Employees Retirement Income Security Act. The Amer Disclosure Schedule lists
and describes all profit-sharing, bonus, incentive, deferred compensation,
vacation, severance pay, retirement, stock option, group insurance or other
plans (whether written or not) providing employee benefits.
4.11 BANK ACCOUNTS. The Amer Disclosure Schedule sets forth the names
and locations of all banks, trusts, companies, savings and loan associations,
and other financial institutions at which Amer maintains accounts of any nature
and the names of all persons authorized to draw thereon or make withdrawals
therefrom.
4.12 CONTRACTS.
(AI Amer has no agreements, contracts or commitments that provide for
the sale, licensing or distribution by Amer of any of its products, services,
inventions, technology, know-how, trademarks or trade names except in the
ordinary course of its business.
(BI Without limiting the provisions of Section 4.9 and except for any
agreements with GONT, Amer has not granted to any third party any exclusive
rights of any kind with respect to any of the Amer Products/Services.
(CI There is no outstanding sales contract, commitment or proposal of
Amer that is currently expected to result in any loss to Amer (before allocation
of overhead and administrative costs) upon completion or performance thereof.
(DI Amer has no outstanding agreements, contracts or commitments with
officers, employees, agents, consultants, advisors, salesmen, sales
representatives, distributors or dealers that are not cancelable by it on notice
of not longer than thirty (30) days and without liability, penalty or premium.
(EI Amer has no employment, independent contractor or similar
agreement, contract or commitment that is not terminable on no more than thirty
(30) days' notice without penalty or liability of any type, including without
limitation severance or termination pay.
<PAGE>
(FI Amer has no currently effective collective bargaining or union
agreements, contracts or commitments.
(GI Amer is not restricted by agreement from competing with any person
or from carrying on its business anywhere in the world.
(HI Amer has not guaranteed any obligations of other persons or made
any agreements to acquire or guarantee any obligations of other persons.
(II Amer has no outstanding loan or advance to any person; nor is it
party to any line of credit, standby financing, revolving credit or other
similar financing arrangement of any sort which would permit the borrowing by
Amer of any sum not reflected in the Amer Financial Statements.
(JI All material contracts, agreements and instruments to which Amer is
a party are valid, binding, in full force and effect, and enforceable by Amer in
accordance with their respective terms. No such material contract, agreement or
instrument contains any material liquidated-damages, penalty or similar
provision. Amer has not received any notice from any party to any such material
contract, agreement or instrument that such party intends to cancel, withdraw,
modify or amend such contract, agreement or arrangement.
(KI The Amer Disclosure Schedule lists all material agreements pursuant
to which Amer has agreed to supply to any third party Amer Products/Services.
(LI Amer is not in default under or in breach or violation of, nor, to
its actual knowledge, is there any valid basis for any claim of default by Amer
under, or breach or violation by Amer of, any contract, commitment or
restriction to which Amer is a party or to which it or any of its properties is
bound, where such defaults, breaches, or violations would, in the aggregate,
have a Material Adverse Effect on Amer. To Amer's actual knowledge, no other
party is in default under or in breach or violation of, nor is there any valid
basis for any claim of default by any other party under or any breach or
violation by any other party of, any material contract, commitment, or
restriction to which Amer is bound or by which any of its properties is bound,
where such defaults, breaches, or violations would, in the aggregate, have a
Material Adverse Effect on Amer.
(MI All agreements, contracts and commitments (the "Material
Contracts") listed or described in the Amer Disclosure Schedule pursuant to this
Section 4.12 are assumable, or will otherwise be the property of, the Surviving
Corporation following the Mergers without further action by the Surviving
Corporation or Amer. If any of the Material Contracts are not assumable by or
will not be the property of, the Surviving Corporation following the Mergers,
then Amer has described in the Amer Disclosure Schedule such actions as is
necessary for assumption of the Material Contract by the Surviving Corporation.
(NI True and correct copies of each document or instrument described in
the Amer Disclosure Schedule pursuant to this Section 4.12 have been made
available to GONT or its representatives.
<PAGE>
4.13 INSIDER TRANSACTIONS. No Affiliate of Amer has any interest in
(i) any material equipment or other property, real or personal, tangible or
intangible, including, without limitation, any item of intellectual property,
used in connection with or pertaining to the business of Amer; or (ii) any
creditor, supplier, customer, agent or representative of Amer; provided,
however, that no such Affiliate or other person shall be deemed to have such an
interest solely by virtue of the ownership of less than one percent (1%) of the
outstanding stock or debt securities of any publicly-held company, the stock or
debt securities of which are traded on a recognized stock exchange or quoted on
the National Association of Securities Dealers Automated Quotation System.
4.14 INSURANCE. The Amer Disclosure Schedule contains a list of the
principal policies of fire, liability and other forms of insurance held by Amer.
4.15 DISPUTES AND LITIGATION. Except as set forth in the Amer
Disclosure Schedule, there is no suit, action, litigation, proceeding,
investigation, claim, complaint, or accusation pending, or to its knowledge
threatened against or affecting Amer or any of its properties, assets or
business or to which Amer is a party, in any court or before any arbitrator of
any kind or before or by any governmental agency (including, without limitation,
any federal, state, local, foreign or other governmental department, commission,
board, bureau, agency or instrumentality), and to its knowledge, there is no
basis for such suit, action, litigation, proceeding, investigation, claim,
complaint, or accusation; (b) there is no pending or threatened change in any
environmental, zoning or building laws, regulations or ordinances which affect
or could affect Amer or any of its properties, assets or businesses; and (c)
there is no outstanding order, writ, injunction, decree, judgment or award by
any court, arbitrator or governmental body against or affecting Amer or any of
its properties, assets or business. There is no litigation, proceeding,
investigation, claim, complaint or accusation, formal or informal, or
arbitration pending, or any of the aforesaid threatened, or any contingent
liability which would give rise to any right of indemnification or similar right
on the part of any director or officer of Amer or any such person's heirs,
executors or administrators as against Amer.
4.16 COMPLIANCE WITH LAWS. Amer has at all times been, and presently
is, in full compliance with, and has not received notice of any claimed
violation of, any applicable federal, state, local, foreign and other laws,
rules and regulations. Amer has filed all returns, reports and other documents
and furnished all information required or requested by any federal, state, local
or foreign governmental agency and all such returns, reports, documents and
information are true and complete in all respects. All permits, licenses,
orders, franchises and approvals of all federal, state, local or foreign
governmental or regulatory bodies required of Amer for the conduct of its
business have been obtained, no violations are or have been recorded in respect
of any such permits, licenses, orders, franchises and approvals, and there is no
litigation, proceeding, investigation, arbitration, claim, complaint or
accusation, formal or informal, pending or threatened, which may revoke, limit,
or question the validity, sufficiency or continuance of any such permit,
license, order, franchise or approval. Such permits, licenses, orders,
franchises and approvals are valid and sufficient for all activities presently
carried on by Amer.
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4.17 SUBSIDIARIES. Amer has no subsidiaries. Amer does not own or
control (directly or indirectly) any capital stock, bonds or other securities
of, and does not have any proprietary interest in, any other corporation,
general or limited partnership, firm, association or business organization,
entity or enterprise, and Amer does not control (directly or indirectly) the
management or policies of any other corporation, partnership, firm, association
or business organization, entity or enterprise.
4.18 ENVIRONMENTAL MATTERS.
(AI As of the date hereof, no underground storage tanks are present
under any property that Amer has at any time owned, operated, occupied or
leased. As of the date hereof except as set forth in the Amer Disclosure
Schedule, no material amount of any substance that has been designated by any
governmental entity or by applicable federal, state or local law to be
radioactive, toxic, hazardous or otherwise a danger to health or the
environment, including, without limitation, PCBs, asbestos, petroleum,
urea-formaldehyde and all substances listed as hazardous substances pursuant to
the Comprehensive Environmental Response, Compensation, and Liability Act of
1980, as amended, or defined as a hazardous waste pursuant to the United States
Resource Conservation and Recovery Act of 1976, as amended, and the regulations
promulgated pursuant to said laws (a "Hazardous Material"), excluding office,
janitorial and other immaterial supplies, are present, as a result of the
actions of Amer or, to Amer's actual knowledge, as a result of any actions of
any third party or otherwise, in, on or under any property, including the land
and the improvements, ground water and surface water, that Amer have at any time
owned, operated, occupied or leased.
(BI At no time has Amer transported, stored, used, manufactured,
disposed of, released or exposed its employees or others to Hazardous Materials
in violation of any law in effect on or before the Closing Date, nor has Amer
disposed of, transported, sold, or manufactured any product containing a
Hazardous Material in violation of any rule, regulation, treaty or statute
promulgated by any governmental entity to prohibit, regulate or control
Hazardous Materials or any Hazardous Material Activities.
(CI Amer currently holds all environmental approvals, permits,
licenses, clearances and consents necessary for the conduct of its business as
such business is currently being conducted, the absence of which would be
reasonably likely to have a Material Adverse Effect on Amer.
(DI No action, proceeding, revocation proceeding, amendment procedure,
writ, injunction or claim is pending or, to the actual knowledge of Amer,
threatened concerning any Environmental Permit. Amer is not aware of any fact
or circumstance which could involve it in any environmental litigation or impose
upon it any environmental liability which would be reasonably likely to have a
Material Adverse Effect on Amer.
<PAGE>
4.19 CORPORATE DOCUMENTS. Amer has furnished to GONT for its
examination: (i) copies of its Certificate or Articles of Incorporation and
Bylaws; (ii) its Minute Book containing all records required to be set forth of
all proceedings, consents, actions, and meetings of the stockholders, the board
of directors and any committees thereof; (iii) all permits, orders, and consents
issued by any regulatory agency with respect to Amer, or any securities of Amer,
and all applications for such permits, orders, and consents; and (iv) their
stock transfer books setting forth all transfers of any capital stock. The
corporate minute books, stock certificate books, stock registers and other
corporate records of Amer are complete and accurate in all material respects,
and the signatures appearing on all documents contained therein are the true
signatures of the persons purporting to have signed the same. All actions
reflected in such books and records were duly and validly taken in compliance
with the laws of the applicable jurisdiction.
4.20 NO BROKERS. Amer is not obligated for the payment of fees or
expenses of any broker or finder in connection with the origin, negotiation or
execution of this Agreement or the Certificate of Merger or in connection with
any transaction contemplated hereby or thereby.
4.21 DISCLOSURE. No statements by Amer contained in this Agreement and
the Exhibits and Amer Disclosure Schedule attached hereto, any other Transaction
Document or any written statement or certificate furnished or to be furnished
pursuant hereto or in connection with the transactions contemplated hereby and
thereby (when read together) contains any untrue statement of a material fact or
omits to state a material fact necessary in order to make the statements
contained herein or therein not misleading in light of the circumstances under
which they were made.
5. PRECLOSING COVENANTS OF GONT AND WESTLAKE.
5.1 NOTICES AND APPROVALS. GONT agrees: (a) to give and to cause
Westlake to give all notices to third parties which may be necessary or deemed
desirable by Amer in connection with this Agreement and the consummation of the
transactions contemplated hereby; (b) to use its best efforts to obtain and to
cause Westlake to obtain, all federal and state governmental regulatory agency
approvals, consents, permit, authorizations, and orders necessary or deemed
desirable by Amer in connection with this Agreement and the consummation of the
transaction contemplated hereby; and (c) to use its best efforts to obtain, and
to cause Westlake to obtain, all consents and authorizations of any other third
parties necessary or deemed desirable by Amer in connection with this Agreement
and the consummation of the transactions contemplated hereby.
5.2 INFORMATION FOR AMER'S STATEMENTS AND APPLICATIONS. GONT and
Westlake and their employees, accountants and attorneys shall cooperate fully
with Amer in the preparation of any statements or applications made by Amer to
any federal or state governmental regulatory agency in connection with this
Agreement and the transactions contemplated hereby and to furnish Amer with all
information concerning GONT and Westlake necessary or deemed desirable by Amer
for inclusion in such statements and applications, including, without
limitation, all requisite financial statements and schedules.
6. PRECLOSING COVENANTS OF AMER.
<PAGE>
6.1 NOTICES AND APPROVALS. Amer agrees: (a) to give all notices to
third parties which may be necessary or deemed desirable by GONT in connection
with this Agreement and the consummation of the transactions contemplated
hereby; (b) to use its best efforts to obtain all federal and state governmental
regulatory agency approvals, consents, permit, authorizations, and orders
necessary or deemed desirable by GONT in connection with this Agreement and the
consummation of the transaction contemplated hereby; and (c) to use its best
efforts to obtain all consents and authorizations of any other third parties
necessary or deemed desirable by GONT in connection with this Agreement and the
consummation of the transactions contemplated hereby.
6.2 ADVICE OF CHANGES. Amer will promptly advise GONT in writing (i)
of any event occurring subsequent to the date of this Agreement which would
render any representation or warranty of Amer contained in this Agreement, if
made on or as of the date of such event or the Closing Date, untrue or
inaccurate in any material respect and (ii) of any material adverse change in
Amer's business, taken as a whole.
6.3 INFORMATION FOR GONT'S STATEMENTS AND APPLICATIONS. Amer and its
employees, accountants and attorneys shall cooperate fully with GONT in the
preparation of any statements or applications made by GONT to any federal or
state governmental regulatory agency in connection with this Agreement and the
transactions contemplated hereby and to furnish GONT with all information
concerning Amer necessary or deemed desirable by GONT for inclusion in such
statements and applications, including, without limitation, all requisite
financial statements and schedules.
6.4 CONDUCT OF BUSINESS BY AMER. Until the Closing, Amer will continue
to conduct its business and maintain its business relationships in the ordinary
and usual course and will not, without the prior written consent of GONT:
(AI borrow any money;
(BI lease, license, sell, transfer or encumber or permit to be
encumbered any asset, intellectual property right or other property associated
with the business of Amer (including sales or transfers to Affiliates of Amer);
(CI dispose of any of its assets;
(DI enter into any lease or contract for the purchase or sale of any
property, real or personal;
(EI pay any bonus, increased salary, or special remuneration to any
officer or employee, including any amounts for accrued but unpaid salary or
bonuses;
(FI change accounting methods;
(GI declare, set aside or pay any cash or stock dividend or other
distribution in respect of capital, or redeem or otherwise acquire any of its
capital stock;
(HI amend or terminate any contract, agreement or license to which it
is a party;
<PAGE>
(II loan any amount to any person or entity, or guaranty or act as a
surety for any obligation;
(JI issue or sell any shares of its capital stock of any class or any
other of its securities, or issue or create any warrants, obligations,
subscriptions, options, convertible securities, or other commitments to issue
shares of capital stock;
(KI split or combine the outstanding shares of its capital stock of any
class or enter into any recapitalization affecting the number of outstanding
shares of its capital stock of any class or affecting any other of its
securities;
(LI amend its Certificate of Incorporation or Bylaws;
(MI make or change any election, change any annual accounting period,
adopt or change any accounting method, file any amended tax return, enter into
any closing agreement, settle any tax claim or assessment, surrender any right
to claim refund of taxes, consent to any extension or waiver of the limitation
period applicable to any tax claim or assessment, or take any other action or
omit to take any action, if any such election, adoption, change, amendment,
agreement, settlement, surrender, consent or other action or omission would have
the effect of increasing the tax liability of Amer;
(NI do anything that would cause there to be material adverse changes
in its Financial Statements (with such Financial Statements analyzed as if it
had been prepared according to GAAP, and including but not limited to cash
distributions or material decreases in the net assets of Amer), between the date
of the Amer Financial Statements and the Closing Date; or
(OI agree to do any of the things described in the preceding clauses
Section 6.4(a) through (n).
7. MUTUAL COVENANTS.
7.1 DUE DILIGENCE, INVESTIGATION, AND AUDITS. At such time prior to
the Closing as may be reasonably requested, each party shall make available to
the other party and the other party's employees, agents and representatives all
information concerning the operation, business and prospects of such party as
may be reasonably requested by the other party. Each party will cooperate with
the other party for the purpose of permitting the other party to discuss such
party's business and prospects with such party's customers, creditors, suppliers
and other persons having business dealings with such party, subject to
reasonable confidentiality obligations between the parties.
<PAGE>
7.2 REGULATORY FILINGS; CONSENTS; REASONABLE EFFORTS. Subject to the
terms and conditions of this Agreement, GONT, Westlake and Amer shall use their
respective best efforts to (i) make all necessary filings with respect to the
Merger and this Agreement under the Securities Act, and applicable blue sky or
similar securities laws and shall use all reasonable efforts to obtain required
approvals and clearances with respect thereto and shall supply all additional
information requested in connection therewith; (ii) make merger notification or
other appropriate filings with federal, state or local governmental bodies or
applicable foreign governmental agencies and shall use all reasonable efforts to
obtain required approvals and clearances with respect thereto and shall supply
all additional information requested in connection therewith; (iii) obtain all
consents, waivers, approvals, authorizations and orders required in connection
with the authorization, execution and delivery of this Agreement and the
consummation of the Merger; and (iv) take, or cause to be taken, all appropriate
action, and do, or cause to be done, all things necessary, proper or advisable
to consummate and make effective as promptly as practicable the transactions
contemplated by this Agreement.
7.3 FURTHER ASSURANCES. Prior to and following the Closing, each party
agrees to cooperate fully with the other parties and to execute such further
instruments, documents and agreements and to give such further written
assurances, as may be reasonably requested by any other party to better evidence
and reflect the transactions described herein and contemplated hereby and to
carry into effect the intents and purposes of this Agreement.
8. CLOSING MATTERS.
8.1 REGISTRATION STATEMENT. Within 90 days of execution of this
Agreement, GONT shall prepare and file with the Securities and Exchange
Commission a Registration Statement on Form S-4 for the registration of the GONT
Common Stock issued to the Amer Shareholders hereunder (the "Registration
Statement"). GONT shall use its reasonable best efforts to obtain clearance of
such Registration Statement with the SEC. GONT shall pay all costs and expenses
incurred in connection with such registration statement and shall make any and
all appropriate blue sky filings required in connection with such Registration
Statement. The Closing shall occur upon the effectiveness of the Registration
Statement.
8.2 FILING OF CERTIFICATES OF MERGER. On the date of the Closing, but not
prior to the Closing, the Certificates of Merger for the Merger shall be filed
with the offices of the Secretary of State of the State of Nevada and Colorado
and the merger of Amer with and into Westlake shall be consummated.
8.3 DELIVERY OF DOCUMENTS. On or before the Closing, the parties shall
deliver the documents, and shall perform the acts, which are set forth in
Sections 9 and 10, as specified in such Sections, including delivery of the
counterpart signature pages of the Transaction Documents executed by GONT,
Westlake and/or Amer, as the case may be. All documents which GONT or Westlake
shall deliver or cause to be delivered shall be in form and substance reasonably
satisfactory to Amer. All documents which Amer shall deliver or cause to be
delivered shall be in form and substance reasonably satisfactory to GONT.
9. CONDITIONS TO GONT'S OBLIGATIONS. Unless otherwise provided below,
GONT's and Westlake's obligations to close the transactions contemplated under
this Agreement are subject to the fulfillment or satisfaction by Closing of each
of the following conditions (any one or more of which may be waived by GONT, but
only in a writing signed by GONT):
<PAGE>
9.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES. The representations
and warranties of Amer set forth in Section 4 shall be true in all material
respects on and as of the Closing with the same force and effect as if they had
been made at the Closing, and GONT shall receive a certificate to such effect
executed by the Chairmen and Presidents of Amer.
9.2 COVENANTS. Amer shall have performed and complied with all of its
covenants contained in Sections 6 and 7 on or before the Closing, and GONT shall
receive a certificate from Amer to such effect executed by the Presidents of
Amer.
9.3 NO LITIGATION. On and as of the Closing, no litigation or
proceeding shall be threatened or pending against Amer with the purpose or with
the probable effect of enjoining or preventing the consummation of any of the
transactions contemplated by this Agreement, and GONT shall receive a
certificate to such effect executed by the President of Amer.
9.4 NO ADVERSE DEVELOPMENT. There shall not have been any material
adverse changes in the financial condition, results of operations, assets,
liabilities, business or prospects of Amer since the date of this Agreement, and
GONT shall receive a certificate to such effect executed by the President of
Amer.
9.5 AUTHORIZATIONS. GONT shall have received from Amer written
evidence that the execution, delivery and performance of Amer's obligations
under this Agreement and the Certificate of Merger have been duly and validly
approved and authorized by the Board of Directors of Amer.
9.6 GOVERNMENT CONSENTS. There shall have been obtained at or prior to
the Closing such permits or authorizations, and there shall have been taken such
other action, as may be required by any regulatory authority having jurisdiction
over the parties and the subject matter and the actions herein proposed to be
taken.
9.7 FILING OF CERTIFICATE OF MERGER. As of the Closing, the
Certificate of Merger for the Merger shall have been filed with the Secretary of
State of the State of Nevada and the Secretary of State of the State of
Colorado.
10. CONDITIONS TO AMER'S OBLIGATIONS. Unless otherwise provided below,
the obligations of Amer is subject to the fulfillment or satisfaction by
Closing, of each of the following conditions (any one or more of which may be
waived by Amer, but only in a writing signed by Amer):
10.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES. The representations
and warranties of GONT and Westlake contained in Section 3 shall be true in all
material respects on and as of the Closing with the same force and effect as if
they had been made at the Closing.
10.2 COVENANTS. GONT and Westlake shall have performed and complied
with all of its covenants contained in Sections 5 and 6 on or before the
Closing.
<PAGE>
10.3 AUTHORIZATIONS. Amer shall have received from GONT written
evidence that the execution, delivery and performance of this Agreement and the
Certificate of Merger have been duly and validly approved and authorized by
GONT's Board of Directors and by Westlake's Board of Directors.
10.4 FILING OF CERTIFICATE OF MERGER. As of the Closing, the
Certificate of Merger for the Merger shall have been filed with the Secretary of
State of the State of Nevada and the Secretary of State of the State of
Colorado.
11. TERMINATION OF AGREEMENT.
11.1 TERMINATION. This Agreement may be terminated at any time prior
to the Closing by the mutual written consent of each of the parties hereto.
This Agreement may also be terminated and abandoned:
(A) By Amer if any of the conditions precedent to Amer's obligations
pursuant to Section 10 shall not have been fulfilled at and as of the Closing.
(B) By GONT if any of the conditions precedent to GONT's and Westlake's
obligations pursuant to Section 9 above shall not have been fulfilled at and as
of the Closing.
Any termination of this Agreement under this Section 11.1 shall be effected
by the delivery of written notice of the terminating party to the other parties
hereto.
12. MISCELLANEOUS.
12.1 GOVERNING LAWS. It is the intention of the parties hereto that
the internal laws of the State of California (irrespective of its choice of law
principles) shall govern the validity of this Agreement, the construction of its
terms, and the interpretation and enforcement of the rights and duties of the
parties hereto.
12.2 BINDING UPON SUCCESSORS AND ASSIGNS. Subject to, and unless
otherwise provided in, this Agreement, each and all of the covenants, terms,
provisions, and agreements contained herein shall be binding upon, and inure to
the benefit of, the permitted successors, executors, heirs, representatives,
administrators and assigns of the parties hereto.
12.3 SEVERABILITY. If any provision of this Agreement, or the
application thereof, shall for any reason and to any extent be invalid or
unenforceable, the remainder of this Agreement and application of such provision
to other persons or circumstances shall be interpreted so as best to reasonably
effect the intent of the parties hereto. The parties further agree to replace
such void or unenforceable provision of this Agreement with a valid and
enforceable provision which will achieve, to the extent possible, the economic,
business and other purposes of the void or unenforceable provision.
<PAGE>
12.4 ENTIRE AGREEMENT. This Agreement, the exhibits hereto, the
documents referenced herein, and the exhibits thereto, constitute the entire
understanding and agreement of the parties hereto with respect to the subject
matter hereof and thereof and supersede all prior and contemporaneous agreements
or understandings, inducements or conditions, express or implied, written or
oral, between the parties with respect hereto and thereto. The express terms
hereof control and supersede any course of performance or usage of the trade
inconsistent with any of the terms hereof.
12.5 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original as against any party whose
signature appears thereon and all of which together shall constitute one and the
same instrument. This Agreement shall become binding when one or more
counterparts hereof, individually or taken together, shall bear the signatures
of all of the parties reflected hereon as signatories.
12.6 EXPENSES. Except as provided to the contrary herein, each party
shall pay all of its own costs and expenses incurred with respect to the
negotiation, execution and delivery of this Agreement, the exhibits hereto, and
the other Transaction Documents.
12.7 AMENDMENT AND WAIVERS. Any term or provision of this Agreement
may be amended, and the observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively) only by a writing signed by the party to be bound thereby. The
waiver by a party of any breach hereof for default in payment of any amount due
hereunder or default in the performance hereof shall not be deemed to constitute
a waiver of any other default or any succeeding breach or default.
12.8 SURVIVAL OF AGREEMENTS. All covenants, agreements,
representations and warranties made herein shall survive the execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby notwithstanding any investigation of the parties hereto and shall
terminate on the date one year after the Closing Date.
12.9 NO WAIVER. The failure of any party to enforce any of the
provisions hereof shall not be construed to be a waiver of the right of such
party thereafter to enforce such provisions.
12.10 ATTORNEYS' FEES. Should suit be brought to enforce or interpret
any part of this Agreement, the prevailing party shall be entitled to recover,
as an element of the costs of suit and not as damages, reasonable attorneys'
fees to be fixed by the court (including without limitation, costs, expenses and
fees on any appeal). The prevailing party shall be the party entitled to
recover its costs of suit, regardless of whether such suit proceeds to final
judgment. A party not entitled to recover its costs shall not be entitled to
recover attorneys' fees. No sum for attorneys' fees shall be counted in
calculating the amount of a judgment for purposes of determining if a party is
entitled to recover costs or attorneys' fees.
<PAGE>
12.11 NOTICES. Any notice provided for or permitted under this
Agreement will be treated as having been given when (a) delivered personally,
(b) sent by confirmed telex or telecopy, (c) sent by commercial overnight
courier with written verification of receipt, or (d) mailed postage prepaid by
certified or registered mail, return receipt requested, to the party to be
notified, at the address set forth below, or at such other place of which the
other party has been notified in accordance with the provisions of this Section
13.11.
GONT or Westlake: Go Online Networks Corporation
5681 Beach Blvd., Suite 101
Buena Park, CA 90621
Attn: Joseph M. Naughton
Facsimile No.: (714) 736-9488
With copy to:
Cutler Law Group
610 Newport Center Drive, Suite 800
Newport Beach, CA 92660
Attn: M. Richard Cutler
Facsimile No.: (949) 719-1977
Amer:
6301 Indian School Road
Albuquerque, NM 87123
Attn: Jack Benezra
Facsimile No.: (___)_____________
Such notice will be treated as having been received upon actual receipt.
12.12 TIME. Time is of the essence of this Agreement.
12.13 CONSTRUCTION OF AGREEMENT. This Agreement has been negotiated by
the respective parties hereto and their attorneys and the language hereof shall
not be construed for or against any party. The titles and headings herein are
for reference purposes only and shall not in any manner limit the construction
of this Agreement which shall be considered as a whole.
12.14 NO JOINT VENTURE. Nothing contained in this Agreement shall be
deemed or construed as creating a joint venture or partnership between any of
the parties hereto. No party is by virtue of this Agreement authorized as an
agent, employee or legal representative of any other party. No party shall have
the power to control the activities and operations of any other and their status
is, and at all times, will continue to be, that of independent contractors with
respect to each other. No party shall have any power or authority to bind or
commit any other. No party shall hold itself out as having any authority or
relationship in contravention of this Section 13.14.
12.15 PRONOUNS. All pronouns and any variations thereof shall be
deemed to refer to the masculine, feminine or neuter, singular or plural, as the
identity of the person, persons, entity or entities may require.
<PAGE>
12.16 FURTHER ASSURANCES. Each party agrees to cooperate fully with
the other parties and to execute such further instruments, documents and
agreements and to give such further written assurances, as may be reasonably
requested by any other party to better evidence and reflect the transactions
described herein and contemplated hereby and to carry into effect the intents
and purposes of this Agreement.
12.17 ABSENCE OF THIRD-PARTY BENEFICIARY RIGHTS. Except for the
agreements provided for in Section 5.2 of this Agreement, no provisions of this
Agreement are intended, nor shall be interpreted, to provide or create any
third-party bene-ficiary rights or any other rights of any kind in any client,
customer, affiliate, stockholder, partner of any party hereto or any other
person or entity except employees and stockholders of GONT specifically referred
to herein, and, except as so provided, all provisions hereof shall be personal
solely between the parties to this Agreement.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first set forth above.
GO ONLINE NETWORKS CORPORATION WESTLAKE CAPITAL CORP.
a Delaware corporation a Colorado corporation
By: /s/ Joseph M. Naughton By: /s/ Joseph M. Naughton
Joseph M. Naughton Joseph M. Naughton
President President
AMER SOFTWARE, INC.
a Nevada corporation
By: /s/ Jack Benezra
Jack Benezra
President
