EX-2.1 2 exhibit2-1.txt ACQUISITION AGREEMENT AND PLAN OF MERGER Exhibit 2.1. ACQUISITION AGREEMENT AND PLAN OF MERGER ACQUISITION AGREEMENT AND PLAN OF MERGER DATED AS OF DECEMBER 28, 2004 BETWEEN ENERGENX, INC. AND EDWARD II, INC. TABLE OF CONTENTS ARTICLE 1. The Merger Section 1.1. The Merger Section 1.2. The Acquisition Section 1.3. Effective Time Section 1.4. Closing of the Merger Section 1.5. Effects of the Merger Section 1.6. Board of Directors and Officers of EGX Section 1.7. Taking of Necessary Action; Further Action ARTICLE 2. Representations and Warranties of EGX Section 2.1. Organization and Qualification Section 2.2. Capitalization of EGX Section 2.3. Authority Relative to this Agreement; Recommendation Section 2.4. SEC Reports; Financial Statements Section 2.5. Information Supplied Section 2.6. Consents and Approvals; No Violations Section 2.7. No Default Section 2.8. No Undisclosed Liabilities; Absence of Changes Section 2.9. Litigation Section 2.10. Compliance with Applicable Law Section 2.11. Employee Benefit Plans; Labor Matters Section 2.12. Environmental Laws and Regulations Section 2.13. Tax Matters Section 2.14. Title To Property Section 2.15. Intellectual Property Section 2.16. Insurance Section 2.17. Vote Required Section 2.18. Tax Treatment Section 2.19. Affiliates Section 2.20. Certain Business Practices Section 2.21. Insider Interests Section 2.22. Opinion of Financial Adviser Section 2.23. Brokers Section 2.24. Disclosure Section 2.25. No Existing Discussion ARTICLE 3. Representations and Warranties of EDW. Section 3.1. Organization and Qualification Section 3.2. Capitalization of EDW Section 3.3. Authority Relative to this Agreement; Recommendation Section 3.4. SEC Reports; Financial Statements Section 3.5. Information Supplied Section 3.6. Consents and Approvals; No Violations Section 3.7. No Default Section 3.8 No Undisclosed Liabilities; Absence of Changes Section 3.9. Litigation Section 3.10. Compliance with Applicable Law Section 3.11. Employee Benefit Plans; Labor Matters Section 3.12. Environmental Laws and Regulations Section 3.13. Tax Matters Section 3.14. Title to Property Section 3.15. Intellectual Property Section 3.16. Insurance Section 3.17. Vote Required Section 3.18. Tax Treatment Section 3.19. Affiliates Section 3.20. Certain Business Practices Section 3.21. Insider Interests Section 3.22. Opinion of Financial Adviser Section 3.23. Brokers Section 3.24. Disclosure Section 3.25. No Existing Discussions ARTICLE 4. Covenants Section 4.1. Conduct of Business of EGX Section 4.2. Conduct of Business of EDW Section 4.3. Preparation of 8-K Section 4.4. Other Potential Acquirers Section 4.5. NASD OTC:BB Listing Section 4.6. Access to Information Section 4.7. Additional events; Reasonable Efforts Section 4.8. Indemnification Section 4.9. Notification of Certain Matters ARTICLE 5. Conditions to Consummation of the Merger Section 5.1. Conditions to each Party's Obligation Section 5.2. Conditions to the Obligations of EGX Section 5.3. Conditions to the Obligations of EDW ARTICLE 6. Termination; Amendment; Waiver Section 6.1. Termination Section 6.2. Effect of Termination Section 6.3. Fees and Expenses Section 6.4. Amendment Section 6.5. Extension; Waiver ARTICLE 7. Miscellaneous Section 7.1. Nonsurvival of Representations and Warranties Section 7.2. Entire Agreement; Assignment Section 7.3. Validity Section 7.4. Notices Section 7.5. Governing Law Section 7.6. Descriptive Headings Section 7.7. Parties in Interest Section 7.8. Certain Definitions Section 7.9. Personal Liability Section 7.10. Specific Performance Section 7.11. Counterparts ACQUISITION AGREEMENT AND PLAN OF MERGER This Agreement and Plan of Merger (this "Agreement"), dated as of December 28, 2004, is between ENERGENX, INC., a Nevada corporation ("EGX"), and EDWARD II, INC., a Nevada corporation ("EDW"). Whereas, the Boards of Directors of EGX and EDW each have, in light of and subject to the terms and conditions set forth herein, (i) determined that the Merger (as defined below) is fair to their respective stockholders and in the best interests of such stockholders and (ii) approved the Acquisition Agreement and Plan of Merger in accordance with this Agreement; Whereas, for Federal income tax purposes, it is intended that the Merger qualify as a reorganization under the provisions of Section 368(a) of the Internal Revenue Code of 1986, as amended (the "Code"); and Whereas, EGX and EDW desire to make certain representations, warranties, covenants and agreements in connection with the Merger and also to prescribe various conditions to the Merger. Now, therefore, in consideration of the promises and the representations, warranties, covenants and agreements herein contained, and intending to be legally bound hereby, EGX and EDW hereby agree as follows: ARTICLE I The Merger Section 1.1. The Merger. At the Effective Time (as defined below) and upon the terms and subject to the conditions of this Agreement and in accordance with the General Corporation Law of the State of Nevada (the "NGCL"), EDW shall be merged with and into EGX (as defined below) (the "Merger"). Following the Merger, EGX shall continue as the surviving corporation (the "Successor Corporation"), shall continue to be governed by the laws of the jurisdiction of its incorporation or organization and the separate corporate existence of EDW shall cease to exist. The Successor Corporation shall continue to adapt its original Articles and By-laws. The Successor Corporation is named Energenx, Inc., a Nevada corporation. The Merger is intended to qualify as a tax-free reorganization under Section 368 of the Code as relates to the non-cash exchange of stock referenced herein. Section 1.2. The Acquisition. EGX shall purchase for cash all of the issued and outstanding shares of EDW. EDW has 430,000 common shares issued and outstanding to one shareholder. This shareholder has agreed to sell and EGX has agreed to purchase all 430,000 shares for cash at par value $0.001 for a total of $4,300. Once EGX purchases all of the common shares of EDW, EGX will have complete ownership of EDW. Section 1.3. Effective Time. Subject to the terms and conditions set forth in this Agreement, a Certificate of Merger (the "Merger Certificate") shall be duly executed and acknowledged by each of EDW and EGX, and thereafter the Merger Certificate reflecting the Merger shall be delivered to the Secretary of State of the State of Nevada for filing pursuant to the NGCL on the Closing Date (as defined in Section 1.3). The Merger shall become effective at such time as a properly executed and certified copy of the Merger Certificate is duly filed by the Secretary of State of the State of Nevada in accordance with the NGCL or such later time as the parties may agree upon and set forth in the Merger Certificate (the time at which the Merger becomes effective shall be referred to herein a the "Effective Time"). Section 1.4. Closing of the Merger. The closing of the Merger (the "Closing") will take place at a time and on a date to be specified by the parties, which shall be no later than the second business day after satisfaction of the latest to occur of the conditions set forth in Article 5 (the "Closing Date"), at the law offices of Thomas C. Cook, 2921 N. Tenaya Way, Suite 234, Las Vegas, NV 89128, unless another time, date or place is agreed to in writing by the parties hereto. Section 1.5. Effects of the Merger. The Merger shall have the effects set forth in the NGCL. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time, all the properties, rights, privileges, powers of EDW shall vest in the Successor Corporation, and all debts, liabilities and duties of EDW shall become the debts, liabilities and duties of the Successor Corporation. Section 1.6. Board of Directors and Officers of EGX. At or prior to the Effective Time, each of EDW and EGX agrees to take such action as is necessary (i) to cause the number of directors comprising the full Board of Directors of EGX to remain the same. Section 1.7. Taking of Necessary Action; Further Action. If, at any time after the Effective Time, EDW or EGX reasonably determines that any deeds, assignments, or instruments or confirmations of transfer are necessary or desirable to carry out the purposes of this Agreement and to vest EGX with full right, title and possession to all assets, property, rights, privileges, powers and franchises of EDW, the officers and directors of EGX and EDW are fully authorized in the name of their respective corporations or otherwise to take, and will take, all such lawful and necessary or desirable action. ARTICLE 2 Representations and Warranties of EGX Except as set forth on the Disclosure Schedule delivered by EGX to EDW (the "EGX Disclosure Schedule"), EGX hereby represents and warrants to EDW as follows: Section 2.1. Organization and Qualification. (a) EGX is duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, has approximately 10 or more round lot (100 or more shares) stockholders and has all requisite power and authority to own, lease and operate its properties and to carry on its businesses as now being conducted, except where the failure to be so organized, existing and in good standing or to have such power and authority would not have a Material Adverse Effect (as defined below) on EGX. When used in connection with EGX, the term "Material Adverse Effect" means any change or effect (i) that is or is reasonably likely to be materially adverse to the business, results of operations, condition (financial or otherwise) or prospects of EGX, other than any change or effect arising out of general economic conditions unrelated to any business in which EGX is engaged, or (ii) that may impair the ability of EGX to perform its obligations hereunder or to consummate the transactions contemplated hereby. (b) EGX has heretofore delivered to EDW accurate and complete copies of the Articles of Incorporation and Bylaws (or similar governing documents), as currently in effect, of EGX. Except as set forth on Schedule 2.1 of the EGX Disclosure Schedule, EGX is duly qualified or licensed and in good standing to do business in each jurisdiction in which the property owned, leased or operated by it or the nature of the business conducted by it makes such qualification or licensing necessary, except in such jurisdictions where the failure to be so duly qualified or licensed and in good standing would not have a Material Adverse Effect on EGX. Section 2.2. Capitalization of EGX. (a) The authorized capital stock of EGX consists of: (i) Seventy Million (70,000,000) Authorized Shares of Common Stock, $0.001 par value, 14,123,670 Common shares are issued and outstanding as of December 28, 2004, and held by approximately 10 or more round lot (100 or more shares) stockholders; (ii) Five Million (5,000,000) Authorized Shares of Preferred Stock, $0.001 par value, no Preferred Shares have been issued. Pursuant to the Merger Agreement EGX will not issue any shares to EDW, and purchase the 430,000 issued and outstanding of EDW for cash at par value of $0.001 per share. All of the outstanding EGX Shares have been duly authorized and validly issued, and are fully paid, nonassessable and free of preemptive rights. Except as set forth herein, as of the date hereof, there are no outstanding (i) shares of capital stock or other voting securities of EGX, (ii) securities of EGX convertible into or exchangeable for shares of capital stock or voting securities of EGX, (iii) options or other rights to acquire from EGX, except as set forth in 2.2(a) of the Disclosure Schedule, and, no obligations of EGX to issue, any capital stock, voting securities or securities convertible into or exchangeable for capital stock or voting securities of EGX, and (iv) equity equivalents, interests in the ownership or earnings of EGX or other similar rights (collectively, "EGX Securities"). As of the date hereof, except as set forth on Schedule 2.2(a) of the EGX Disclosure Schedule there are no outstanding obligations of EGX or its subsidiaries to repurchase, redeem or otherwise acquire any EGX Securities or stockholder agreements, voting trusts or other agreements or understandings to which EGX is a party or by which it is bound relating to the voting or registration of any shares of capital stock of EGX. For purposes of this Agreement, "Lien" means, with respect to any asset (including, without limitation, any security) any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset. (b) The EGX Shares constitute the only class of equity securities of EGX registered or required to be registered under the Exchange Act. (c) EGX does not own directly or indirectly more than fifty percent (50%) of the outstanding voting securities or interests (including membership interests) of any entity, other than as specifically disclosed in the disclosure documents. Section 2.3. Authority Relative to this Agreement; Recommendation. EGX has all necessary corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by the Board of Directors of EGX (the "EGX Board") and no other corporate proceedings on the part of EGX are necessary to authorize this Agreement or to consummate the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by EGX and constitutes a valid, legal and binding agreement of EGX, enforceable against EGX in accordance with its terms. Section 2.4. SEC Reports; Financial Statements. SEC Reports; Financial Statements. (a) EGX has not filed any reports with the U. S. Securities and Exchange Commission. Section 2.5. Information Supplied. None of the information supplied or to be supplied by EGX for inclusion or incorporation by reference in connection with the Merger will at the date presented to the stockholder of EDW and at the times of the meeting or meetings of stockholders of EGX to be held in connection with the Merger, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. Section 2.6. Consents and Approvals; No Violations. Except for filings, permits, authorizations, consents and approvals as may be required under, and other applicable requirements of, the Securities Act, the Exchange Act, state securities or blue sky laws, the Hart-Scott-Rodino Antitrust Improvements Act of 1916, as amended (the "HSR Act"), the rules of the National Association of Securities Dealers, Inc. ("NASD"), the filing and recordation of the Merger Certificate as required by the NGCL, and as set forth on Schedule 2.6 of the EGX Disclosure Schedule no filing with or notice to, and no permit, authorization, consent or approval of, any court or tribunal or administrative, governmental or regulatory body, agency or authority (a "Governmental Entity") is necessary for the execution and delivery by EGX of this Agreement or the consummation by EGX of the transactions contemplated hereby, except where the failure to obtain such permits, authorizations, consents or approvals or to make such filings or give such notice would not have a Material Adverse Effect on EGX. Except as set forth in Section 2.6 of the EGX Disclosure Schedule, neither the execution, delivery and performance of this Agreement by EGX nor the consummation by EGX of the transactions contemplated hereby will (i) conflict with or result in any breach of any provision of the respective Articles of Incorporation or Bylaws (or similar governing documents) of EGX, (ii) result in a violation or breach of, or constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, amendment, cancellation or acceleration or Lien) under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract, agreement or other instrument or obligation to which EGX is a party or by which any of its properties or assets may be bound, or (iii) violate any order, writ, injunction, decree, law, statute, rule or regulation applicable to EGX or any of its properties or assets, except in the case of (ii) or (iii) for violations, breaches or defaults which would not have a Material Adverse Effect on EGX. Section 2.7. No Default. Except as set forth in Section 2.7 of the EGX Disclosure Schedule, EGX is not in breach, default or violation (and no event has occurred which with notice or the lapse of time or both would constitute a breach default or violation) of any term, condition or provision of (i) its Articles of Incorporation or Bylaws (or similar governing documents), (ii) any note, bond, mortgage, indenture, lease, license, contract, agreement or other instrument or obligation to which EGX is now a party or by which any of its respective properties or assets may be bound or (iii) any order, writ injunction, decree, law, statute, rule or regulation applicable to EGX or any of its respective properties or assets, except in the case of (ii) or (iii) for violations, breaches or defaults that would not have a Material Adverse Effect on EGX. Except as set forth in Section 2.7 of the EGX Disclosure Schedule, each note, bond, mortgage, indenture, lease, license, contract, agreement or other instrument or obligation to which EGX is now a party or by which its respective properties or assets may be bound that is material to EGX and that has not expired is in full force and effect and is not subject to any material default thereunder of which EGX is aware by any party obligated to EGX thereunder. Section 2.8. No Undisclosed Liabilities; Absence of Changes. Except as and to the extent disclosed in the December 31, 1999 audited financial statements, none of EGX or its subsidiaries had any liabilities or obligations of any nature, whether or not accrued, contingent or otherwise, that would be required by generally accepted accounting principles to be reflected on a consolidated balance sheet of EGX and its consolidated subsidiaries (including the notes thereto) or which would have a Material Adverse Effect on EGX. Except as disclosed by EGX, none of EGX or its subsidiaries has incurred any liabilities of any nature, whether or not accrued, contingent or otherwise, which could reasonably be expected to have, and there have been no events, changes or effects with respect to EGX or its subsidiaries having or which could reasonably be expected to have, a Material Adverse Effect on EGX. Except as and to the extent disclosed by EGX there has not been (i) any material change by EGX in its accounting methods, principles or practices (other than as required after the date hereof by concurrent changes in generally accepted accounting principles), (ii) any revaluation by EGX of any of its assets having a Material Adverse Effect on EGX, including, without limitation, any write-down of the value of any assets other than in the ordinary course of business or (iii) any other action or event that would have required the consent of any other party hereto pursuant to Section 4.2 of this Agreement had such action or event occurred after the date of this Agreement. Section 2.9. Litigation. Except as set forth in Schedule 2.9 of the EGX Disclosure Schedule there is no suit, claim, action, proceeding or investigation pending or, to the knowledge of EGX, threatened against EGX or any of its subsidiaries or any of their respective properties or assets before any Governmental Entity which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect on EGX or could reasonably be expected to prevent or delay the consummation of the transactions contemplated by this Agreement. Except as disclosed by EGX, none of EGX or its subsidiaries is subject to any outstanding order, writ, injunction or decree which, insofar as can be reasonably foreseen in the future, could reasonably be expected to have a Material Adverse Effect on EGX or could reasonably be expected to prevent or delay the consummation of the transactions contemplated hereby. Section 2.10. Compliance with Applicable Law. Except as disclosed by EGX, EGX and its subsidiaries hold all permits, licenses, variances, exemptions, orders and approvals of all Governmental Entities necessary for the lawful conduct of their respective businesses (the "EGX Permits"), except for failures to hold such permits, licenses, variances, exemptions, orders and approvals which would not have a Material Adverse Effect on EGX. Except as disclosed by EGX, EGX and its subsidiaries are in compliance with the terms of the EGX Permits, except where the failure so to comply would not have a Material Adverse Effect on EGX. Except as disclosed by EGX, the businesses of EGX and its subsidiaries are not being conducted in violation of any law, ordinance or regulation of any Governmental Entity except that no representation or warranty is made in this Section 2.10 with respect to Environmental Laws and except for violations or possible violations which do not, and, insofar as reasonably can be foreseen, in the future will not, have a Material Adverse Effect on EGX. Except as disclosed by EGX no investigation or review by any Governmental Entity with respect to EGX or its subsidiaries is pending or, to the knowledge of EGX, threatened, nor, to the knowledge of EGX, has any Governmental Entity indicated an intention to conduct the same, other than, in each case, those which EGX reasonably believes will not have a Material Adverse Effect on EGX. Section 2.11. Employee Benefit Plans; Labor Matters. (a) Except as set forth in Section 2.11(a) of the EGX Disclosure Schedule with respect to each employee benefit plan, program, policy, arrangement and contract (including, without limitation, any "employee benefit plan," as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), maintained or contributed to at any time by EGX or any entity required to be aggregated with EGX pursuant to Section 414 of the Code (each, a "EGX Employee Plan"), no event has occurred and to the knowledge of EGX, no condition or set of circumstances exists in connection with which EGX could reasonably be expected to be subject to any liability which would have a Material Adverse Effect on EGX. (b) (i) No EGX Employee Plan is or has been subject to Title IV of ERISA or Section 412 of the Code; and (ii) each EGX Employee Plan intended to qualify under Section 401(a) of the Code and each trust intended to qualify under Section 501(a) of the Code is the subject of a favorable Internal Revenue Service determination letter, and nothing has occurred which could reasonably be expected to adversely affect such determination. (c) Section 2.11(c) of the EGX Disclosure Schedule sets forth a true and complete list, as of the date of this Agreement, of each person who holds any EGX Stock Options, together with the number of EGX Shares which are subject to such option, the date of grant of such option, the extent to which such option is vested (or will become vested as a result of the Merger), the option price of such option (to the extent determined as of the date hereof), whether such option is a nonqualified stock option or is intended to qualify as an incentive stock option within the meaning of Section 422(b) of the Code, and the expiration date of such option. Section 2.11(c) of the EGX Disclosure Schedule also sets forth the total number of such incentive stock options and such nonqualified options. EGX has furnished EDW with complete copies of the plans pursuant to which the EGX Stock Options were issued. Other than the automatic vesting of EGX Stock Options that may occur without any action on the part of EGX or its officers or directors, EGX has not taken any action that would result in any EGX Stock Options that are unvested becoming vested in connection with or as a result of the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby. (d) There shall be no payment, accrual of additional benefits, acceleration of payments, or vesting in any benefit under any EGX Employee Plan or any agreement or arrangement disclosed under this Section 2.11 solely by reason of entering into or in connection with the transactions contemplated by this Agreement. (e) There are no controversies pending or, to the knowledge of EGX, threatened, between EGX and any of their employees, which controversies have or could reasonably be expected to have a Material Adverse Effect on EGX. Neither EGX nor any of its subsidiaries is a party to any collective bargaining agreement or other labor union contract applicable to persons employed by EGX or any of its subsidiaries (and neither EGX nor any of its subsidiaries has any outstanding material liability with respect to any terminated collective bargaining agreement or labor union contract), nor does EGX know of any activities or proceedings of any labor union to organize any of its or employees. EGX has no knowledge of any strike, slowdown, work stoppage, lockout or threat thereof, by or with respect to any of its employees. Section 2.12. Environmental Laws and Regulations. (a) Except as publicly disclosed by EGX in the EGX SEC Reports, (i) EGX is in material compliance with all applicable federal, state, local and foreign laws and regulations relating to pollution or protection of human health or the environment (including, without limitation, ambient air, surface water, ground water, land surface or subsurface strata) (collectively, "Environmental Laws"), except for non-compliance that would not have a Material Adverse Effect on EGX, which compliance includes, but is not limited to, the possession by EGX of all material permits and other governmental authorizations required under applicable Environmental Laws, and compliance with the terms and conditions thereof; (ii) EGX has not received written notice of, or, to the knowledge of EGX, is the subject of, any action, cause of action, claim, investigation, demand or notice by any person or entity alleging liability under or non-compliance with any Environmental Law (an ``Environmental Claim") that could reasonably be expected to have a Material Adverse Effect on EGX; and (iii) to the knowledge of EGX, there are no circumstances that are reasonably likely to prevent or interfere with such material compliance in the future. (b) Except as publicly disclosed by EGX, there are no Environmental Claims which could reasonably be expected to have a Material Adverse Effect on EGX that are pending or, to the knowledge of EGX, threatened against EGX or, to the knowledge of EGX, against any person or entity whose liability for any Environmental Claim EGX has or may have retained or assumed either contractually or by operation of law. Section 2.13. Tax Matters. (a) Except as set forth in Section 2.13 of the EGX Disclosure Schedule: (i) EGX has filed or has had filed on its behalf in a timely manner (within any applicable extension periods) with the appropriate Governmental Entity all income and other material Tax Returns (as defined herein) with respect to Taxes (as defined herein) of EGX and all Tax Returns were in all material respects true, complete and correct; (ii) all material Taxes with respect to EGX have been paid in full or have been provided for in accordance with GAAP on EGX's most recent balance sheet which is part of the EGX SEC Documents. (iii) there are no outstanding agreements or waivers extending the statutory period of limitations applicable to any federal, state, local or foreign income or other material Tax Returns required to be filed by or with respect to EGX; (iv) to the knowledge of EGX none of the Tax Returns of or with respect to EGX is currently being audited or examined by any Governmental Entity; and (v) no deficiency for any income or other material Taxes has been assessed with respect to EGX which has not been abated or paid in full. (b) For purposes of this Agreement, (i) "Taxes" shall mean all taxes, charges, fees, levies or other assessments, including, without limitation, income, gross receipts, sales, use, ad valorem, goods and services, capital, transfer, franchise, profits, license, withholding, payroll, employment, employer health, excise, estimated, severance, stamp, occupation, property or other taxes, customs duties, fees, assessments or charges of any kind whatsoever, together with any interest and any penalties, additions to tax or additional amounts imposed by any taxing authority and (ii) "Tax Return" shall mean any report, return, documents declaration or other information or filing required to be supplied to any taxing authority or jurisdiction with respect to Taxes. Section 2.14. Title to Property. EGX has good and defensible title to all of its properties and assets, free and clear of all liens, charges and encumbrances except liens for taxes not yet due and payable and such liens or other imperfections of title, if any, as do not materially detract from the value of or interfere with the present use of the property affected thereby or which, individually or in the aggregate, would not have a Material Adverse Effect on EGX; and, to EGX's knowledge, all leases pursuant to which EGX leases from others real or personal property are in good standing, valid and effective in accordance with their respective terms, and there is not, to the knowledge of EGX, under any of such leases, any existing material default or event of default (or event which with notice of lapse of time, or both, would constitute a default and in respect of which EGX has not taken adequate steps to prevent such a default from occurring) except where the lack of such good standing, validity and effectiveness, or the existence of such default or event, would not have a Material Adverse Effect on EGX. Section 2.15. Intellectual Property. (a) EGX owns, or possesses adequate licenses or other valid rights to use, all existing United States and foreign patents, trademarks, trade names, service marks, copyrights, trade secrets and applications therefore that are material to its business as currently conducted (the "EGX Intellectual Property Rights"). (b) The validity of the EGX Intellectual Property Rights and the title thereto of EGX is not being questioned in any litigation to which EGX is a party. (c) Except as set forth in Section 2.15(c) of the EGX Disclosure Schedule, the conduct of the business of EGX as now conducted does not, to EGX's knowledge, infringe any valid patents, trademarks, trade names, service marks or copyrights of others. The consummation of the transactions completed hereby will not result in the loss or impairment of any EGX Intellectual Property Rights. (d) EGX has taken steps it believes appropriate to protect and maintain its trade secrets as such, except in cases where EGX has elected to rely on patent or copyright protection in lieu of trade secret protection. Section 2.16. Insurance. EGX currently maintains general liability and other business insurance. Section 2.17. Vote Required. Approval of this Acquisition Agreement and Plan of Merger by the Stockholders of EGX is not required pursuant to current Nevada law. Section 2.18. Tax Treatment. Neither EGX nor, to the knowledge of EGX, any of its affiliates has taken or agreed to take action that would prevent the Merger from constituting a reorganization qualifying under the provisions of Section 368(a) of the Code. Section 2.19. Affiliates. Except for the directors and executive officers of EGX, each of whom is listed in Section 2.19 of the EGX Disclosure Schedule, there are no persons who, to the knowledge of EGX, may be deemed to be affiliates of EGX under Rule 1-02(b) of Regulation S-X of the SEC (the "EGX Affiliates"). Section 2.20. Certain Business Practices. None of EGX or any directors, officers, agents or employees of EGX has (i) used any funds for unlawful contributions, gifts, entertainment or other unlawful expenses relating to political activity, (ii) made any unlawful payment to foreign or domestic government officials or employees or to foreign or domestic political parties or campaigns or violated any provision of the Foreign Corrupt Practices Act of 1977, as amended (the "FCPA"), or (iii) made any other unlawful payment. Section 2.21. Insider Interests. Except as set forth in Section 2.21 of the EGX Disclosure Schedule, neither any officer or director of EGX has any interest in any material property, real or personal, including without limitation, any computer software or EGX Intellectual Property Rights, used in or pertaining to the business of EGX, expect for the ordinary rights of a stockholder or employee stock option holder. Section 2.22. Opinion of Financial Adviser. No advisers, as of the date hereof, have delivered to the EGX Board a written opinion to the effect that, as of such date, the exchange ratio contemplated by the Merger is fair to the holders of EGX Shares. Section 2.23. Brokers. No broker, finder or investment banker (other than the EGX Financial Adviser, a true and correct copy of whose engagement agreement has been provided to EDW) is entitled to any brokerage, finder's or other fee or commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of EGX. Section 2.24. Disclosure. No representation or warranty of EGX in this Agreement or any certificate, schedule, document or other instrument furnished or to be furnished to EDW pursuant hereto or in connection herewith contains, as of the date of such representation, warranty or instrument, or will contain any untrue statement of a material fact or, at the date thereof, omits or will omit to state a material fact necessary to make any statement herein or therein, in light of the circumstances under which such statement is or will be made, not misleading. Section 2.25. No Existing Discussions. As of the date hereof, EGX is not engaged, directly or indirectly, in any discussions or negotiations with any other party with respect to any Third Party Acquisition (as defined in Section 4.4). ARTICLE 3 Representations and Warranties of EDW Except as set forth on the Disclosure Schedule delivered by EDW to EGX (the "EDW Disclosure Schedule"), EDW hereby represents and warrants to EGX as follows: Section 3.1. Organization and Qualification. (a) Each of EDW and its subsidiaries is duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization and has all requisite power and authority to own, lease and operate its properties and to carry on its businesses as now being conducted, except where the failure to be so organized, existing and in good standing or to have such power and authority would not have a Material Adverse Effect (as defined below) on EDW. When used in connection with EDW, the term "Material Adverse Effect" means any change or effect (i) that is or is reasonably likely to be materially adverse to the business, results of operations, condition (financial or otherwise) or prospects of EDW and its subsidiaries, taken as a whole, other than any change or effect arising out of general economic conditions unrelated to any businesses in which EDW and its subsidiaries are engaged, or (ii) that may impair the ability of EDW to consummate the transactions contemplated hereby. (b) EDW has heretofore delivered to EGX accurate and complete copies of the Articles of Incorporation and Bylaws (or similar governing documents), as currently in effect, of EDW. Each of EDW and its subsidiaries is duly qualified or licensed and in good standing to do business in each jurisdiction in which the property owned, leased or operated by it or the nature of the business conducted by it makes such qualification or licensing necessary except in such jurisdictions where the failure to be so duly qualified or licensed and in good standing would not have a Material Adverse Effect on EDW. Section 3.2. Capitalization of EDW. (a) As of September 30, 2004, the authorized capital stock of EDW consists of Seventy Million (70,000,000) EDW common Shares, $0.001 par value, of which 430,000 common Shares are issued and outstanding. All of the outstanding EDW Shares have been duly authorized and validly issued, and are fully paid, nonassessable and free of preemptive rights. EDW has five million (5,000,000) Authorized Shares of Preferred Stock, $0.001 par value, no Preferred Shares have been issued. (b) Except as set forth in Section 3.2(b) of the EDW Disclosure Schedule, Edward Zimmerman, Jr. is the record and beneficial owner of all of the issued and outstanding shares of capital stock of its subsidiaries. (c) Except as set forth in Section 3.2(c) of the EDW Disclosure Schedule, between March 30, 2004 (inception) and the date hereof, no shares of EDW's capital stock have been issued and no EDW Stock options have been granted. Except as set forth in Section 3.2(a) above, as of the date hereof, there are no outstanding (i) shares of capital stock or other voting securities of EDW, (ii) securities of EDW or its subsidiaries convertible into or exchangeable for shares of capital stock or voting securities of EDW, (iii) options or other rights to acquire from EDW or its subsidiaries, or obligations of EDW or its subsidiaries to issue, any capital stock, voting securities or securities convertible into or exchangeable for capital stock or voting securities of EDW, or (iv) equity equivalents, interests in the ownership or earnings of EDW or its subsidiaries or other similar rights (collectively, "EDW Securities"). As of the date hereof, there are no outstanding obligations of EDW or any of its subsidiaries to repurchase, redeem or otherwise acquire any EDW Securities. There are no stockholder agreements, voting trusts or other agreements or understandings to which EDW is a party or by which it is bound relating to the voting or registration of any shares of capital stock of EDW. (d) Except as set forth in Section 3.2(d) of the EDW Disclosure Schedule, there are no securities of EDW convertible into or exchangeable for, no options or other rights to acquire from EDW, and no other contract, understanding, arrangement or obligation (whether or not contingent) providing for the issuance or sale, directly or indirectly, of any capital stock or other ownership interests in, or any other securities of, any subsidiary of EDW. (e) The EDW Shares constitute the only class of equity securities of EDW or its subsidiaries. (f) Except as set forth in Section 3.2(f) of the EDW Disclosure Schedule, EDW does not own directly or indirectly any outstanding voting securities or interests (including membership interests) of any entity. Section 3.3. Authority Relative to this Agreement; Recommendation. (a) EDW has all necessary corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by the Board of Directors of EDW (the "EDW Board"), and no other corporate proceedings on the part of EDW are necessary to authorize this Agreement or to consummate the transactions contemplated hereby, except, as referred to in Section 3.17, the approval and adoption of this Agreement by the holders of at least a majority of the then outstanding EDW Shares. This Agreement has been duly and validly executed and delivered by EDW and constitutes a valid, legal and binding agreement of EDW, enforceable against EDW in accordance with its terms. (b) The EDW Board has resolved to recommend that the sole stockholder of EDW approved and adopted this Agreement. Section 3.4. SEC Reports; Financial Statements. (a) EDW has filed all required forms, reports and documents with the Securities and Exchange Commission (the "SEC") since March 30, 2004, each of which has complied in all material respects with all applicable requirements of the Securities Act of 1933, as amended (the "Securities Act"), and the Exchange Act (and the rules and regulations promulgated thereunder, respectively), each as in effect on the dates such forms, reports and documents were filed. EDW has heretofore delivered or promptly will deliver prior to the Effective Date to EDW, in the form filed with the SEC (including any amendments thereto but excluding any exhibits), (i) its initial Registration Statement on Form 10SB12G filed May 3, 2004, (ii) all other reports or registration statements filed by EDW with the SEC since its inception on March 30, 2004 (all of the foregoing, collectively, the "EDW SEC Reports"). None of such EDW SEC Reports, including, without limitation, any financial statements or schedules included or incorporated by reference therein, contained, when filed, any untrue statement of a material fact or omitted to state a material fact required to be stated or incorporated by reference therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The audited financial statements of EDW included in the EDW SEC Reports fairly present, in conformity with generally accepted accounting principles applied on a consistent basis (except as may be indicated in the notes thereto), the financial position of EDW as of the dates thereof and its results of operations and changes in financial position for the periods then ended. All material agreements, contracts and other documents required to be filed as exhibits to any of the EDW SEC Reports have been so filed. (b) EDW has heretofore made available or promptly will make available to EGX a complete and correct copy of any amendments or modifications which are required to be filed with the SEC but have not yet been filed with the SEC, to agreements, documents or other instruments which previously had been filed by EDW with the SEC pursuant to the Exchange Act. Section 3.5. Information Supplied. None of the information supplied or to be supplied by EDW for inclusion or incorporation by reference to the 8-K will, at the time the 8-K is filed with the SEC and at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading. Section 3.6. Consents and Approvals; No Violations. Except as set forth in Section 3.6 of the EDW Disclosure Schedule, and for filings, permits, authorizations, consents and approvals as may be required under, and other applicable requirements of, the Securities Act, the Exchange Act, state securities or blue sky laws, the HSR Act, the rules of the NASD, and the filing and recordation of the Merger Certificate as required by the NGCL, no filing with or notice to, and no permit, authorization, consent or approval of, any Governmental Entity is necessary for the execution and delivery by EDW of this Agreement or the consummation by EDW of the transactions contemplated hereby, except where the failure to obtain such permits, authorizations consents or approvals or to make such filings or give such notice would not have a Material Adverse Effect on EDW. Neither the execution, delivery and performance of this Agreement by EDW nor the consummation by EDW of the transactions contemplated hereby will (i) conflict with or result in any breach of any provision of the respective Articles of Incorporation or Bylaws (or similar governing documents) of EDW or any of EDW's subsidiaries, (ii) result in a violation or breach of, or constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, amendment, cancellation or acceleration or Lien) under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract, agreement or other instrument or obligation to which EDW or any of EDW's subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or (iii) violate any order, writ, injunction, decree, law, statute, rule or regulation applicable to EDW or any of EDW's subsidiaries or any of their respective properties or assets, except in the case of (ii) or (iii) for violations, breaches or defaults which would not have a Material Adverse Effect on EDW. Section 3.7. No Default. EDW is not in breach, default or violation (and no event has occurred which with notice or the lapse of time or both would constitute a breach, default or violation) of any term, condition or provision of (i) its Articles of Incorporation or Bylaws (or similar governing documents), (ii) any note, bond, mortgage, indenture, lease, license, contract, agreement or other instrument or obligation to which EDW or any of its subsidiaries is now a party or by which any of them or any of their respective properties or assets may be bound or (iii) any order, writ, injunction, decree, law, statute, rule or regulation applicable to EDW, its subsidiaries or any of their respective properties or assets, except in the case of (ii) or (iii) for violations, breaches or defaults that would not have a Material Adverse Effect on EDW. Each note, bond, mortgage, indenture, lease, license, contract, agreement or other instrument or obligation to which EDW or any of its subsidiaries is now a party or by which any of them or any of their respective properties or assets may be bound that is material to EDW and its subsidiaries taken as a whole and that has not expired is in full force and effect and is not subject to any material default thereunder of which EDW is aware by any party obligated to EDW or any subsidiary thereunder. Section 3.8. No Undisclosed Liabilities; Absence of Changes. Except as set forth in Section 2.8 of the EDW Disclosure Schedule and except as and to the extent publicly disclosed by EDW in the EDW SEC Reports, as of December 31, 2003, EDW does not have any liabilities or obligations of any nature, whether or not accrued, contingent or otherwise, that would be required by generally accepted accounting principles to be reflected on a balance sheet of EDW (including the notes thereto) or which would have a Material Adverse Effect on EDW. Except as publicly disclosed by EDW, since December 31, 2003, EDW has not incurred any liabilities of any nature, whether or not accrued, contingent or otherwise, which could reasonably be expected to have, and there have been no events, changes or effects with respect to EDW having or which reasonably could be expected to have, a Material Adverse Effect on EDW. Except as and to the extent publicly disclosed by EDW in the EDW SEC Reports and except as set forth in Section 2.8 of the EDW Disclosure Schedule, since March 30, 2004, there has not been (i) any material change by EDW in its accounting methods, principles or practices (other than as required after the date hereof by concurrent changes in generally accepted accounting principles), (ii) any revaluation by EDW of any of its assets having a Material Adverse Effect on EDW, including, without limitation, any write-down of the value of any assets other than in the ordinary course of business or (iii) any other action or event that would have required the consent of any other party hereto pursuant to Section 4.1 of this Agreement had such action or event occurred after the date of this Agreement. Section 3.9. Litigation. Except as publicly disclosed by EDW in the EDW SEC Reports, there is no suit, claim, action, proceeding or investigation pending or, to the knowledge of EDW, threatened against EDW or any of its subsidiaries or any of their respective properties or assets before any Governmental Entity which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect on EDW or could reasonably be expected to prevent or delay the consummation of the transactions contemplated by this Agreement. Except as publicly disclosed by EDW in the EDW SEC Reports, EDW is not subject to any outstanding order, writ, injunction or decree which, insofar as can be reasonably foreseen in the future, could reasonably be expected to have a Material Adverse Effect on EDW or could reasonably be expected to prevent or delay the consummation of the transactions contemplated hereby. Section 3.10. Compliance with Applicable Law. Except as publicly disclosed by EDW in the EDW SEC Reports, EDW holds all permits, licenses, variances, exemptions, orders and approvals of all Governmental Entities necessary for the lawful conduct of their respective businesses (the `'EDW Permits"), except for failures to hold such permits, licenses, variances, exemptions, orders and approvals which would not have a Material Adverse Effect on EDW. Except as publicly disclosed by EDW in the EDW SEC Reports, EDW is in compliance with the terms of the EDW Permits, except where the failure so to comply would not have a Material Adverse Effect on EDW. Except as publicly disclosed by EDW in the EDW SEC Reports, the business of EDW is not being conducted in violation of any law, ordinance or regulation of any Governmental Entity except that no representation or warranty is made in this Section 2.10 with respect to Environmental Laws (as defined in Section 2.12 below) and except for violations or possible violations which do not, and, insofar as reasonably can be foreseen, in the future will not, have a Material Adverse Effect on EDW. Except as publicly disclosed by EDW in the EDW SEC Reports, no investigation or review by any Governmental Entity with respect to EDW is pending or, to the knowledge of EDW, threatened, nor, to the knowledge of EDW, has any Governmental Entity indicated an intention to conduct the same, there than, in each case, those which EDW reasonably believes will not have a Material Adverse Effect on EDW. Section 3.11. Employee Benefit Plans; Labor Matters. (a) With respect to each employee benefit plan, program, policy, arrangement and contract (including, without limitation, any "employee benefit plan," as defined in Section 3(3) of ERISA), maintained or contributed to at any time by EDW, any of its subsidiaries or any entity required to be aggregated with EDW or any of its subsidiaries pursuant to Section 414 of the Code (each, a "EDW Employee Plan"), no event has occurred and, to the knowledge of EDW, no condition or set of circumstances exists in connection with which EDW or any of its subsidiaries could reasonably be expected to be subject to any liability which would have a Material Adverse Effect on EDW. (b) (i) No EDW Employee Plan is or has been subject to Title IV of ERISA or Section 412 of the Code; and (ii) each EDW Employee Plan intended to qualify under Section 401(a) of the Code and each trust intended to qualify under Section 501(a) of the Code is the subject of a favorable Internal Revenue Service determination letter, and nothing has occurred which could reasonably be expected to adversely affect such determination. (c) Section 3.11(c) of the EDW Disclosure Schedule sets forth a true and complete list, as of the date of this Agreement, of each person who holds any EDW Stock Options, together with the number of EDW Shares which are subject to such option, the date of grant of such option, the extent to which such option is vested (or will become vested as a result of the Merger), the option price of such option (to the extent determined as of the date hereof), whether such option is a nonqualified stock option or is intended to qualify as an incentive stock option within the meaning of Section 422(b) of the Code, and the expiration date of such option. Section 3.11(c) of the EDW Disclosure Schedule also sets forth the total number of such incentive stock options and such nonqualified options. EDW has furnished EGX with complete copies of the plans pursuant to which the EDW Stock Options were issued. Other than the automatic vesting of EDW Stock Options that may occur without any action on the part of EDW or its officers or directors, EDW has not taken any action that would result in any EDW Stock Options that are unvested becoming vested in connection with or as a result of the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby. (d) Except as disclosed in Section 3.11(e) of the EDW Disclosure Schedule there shall be no payment, accrual of additional benefits, acceleration of payments, or vesting in any benefit under any EDW Employee Plan or any agreement or arrangement disclosed under this Section 3.11 solely by reason of entering into or in connection with the transactions contemplated by this Agreement. (e) There are no controversies pending or, to the knowledge of EDW threatened, between EDW or any of its subsidiaries and any of their respective employees, which controversies have or could reasonably be expected to have a Material Adverse Effect on EDW. Neither EDW nor any of its subsidiaries is a party to any collective bargaining agreement or other labor union contract applicable to persons employed by EDW or any of its subsidiaries (and neither EDW nor any of its subsidiaries has any outstanding material liability with respect to any terminated collective bargaining agreement or labor union contract), nor does EDW know of any activities or proceedings of any labor union to organize any of its or any of its subsidiaries' employees. EDW has no knowledge of any strike, slowdown, work stoppage, lockout or threat thereof by or with respect to any of its or any of its subsidiaries' employees. Section 3.12. Environmental Laws and Regulations. (a) Except as disclosed by EDW, (i) each of EDW and its subsidiaries is in material compliance with all Environmental Laws, except for non-compliance that would not have a Material Adverse Effect on EDW, which compliance includes, but is not limited to, the possession by EDW and its subsidiaries of all material permits and other governmental authorizations required under applicable Environmental Laws, and compliance with the terms and conditions thereof;(ii) none of EDW or its subsidiaries has received written notice of, or, to the knowledge of EDW, is the subject of, any Environmental Claim that could reasonably be expected to have a Material Adverse Effect on EDW; and (iii) to the knowledge of EDW, there are no circumstances that are reasonably likely to prevent or interfere with such material compliance in the future. (b) Except as disclosed by EDW, there are no Environmental Claims which could reasonably be expected to have a Material Adverse Effect on EDW that are pending or, to the knowledge of EDW, threatened against EDW or any of its subsidiaries or, to the knowledge of EDW, against any person or entity whose liability for any Environmental Claim EDW or its subsidiaries has or may have retained or assumed either contractually or by operation of law. Section 3.13. Tax Matters. Except as set forth in Section 3.13 of the EDW Disclosure Schedule: (i) EDW and each of its subsidiaries has filed or has had filed on its behalf in a timely manner (within any applicable extension periods) with the appropriate Governmental Entity all income and other material Tax Returns with respect to Taxes of EDW and each of its subsidiaries and all Tax Returns were in all material respects true, complete and correct; (ii) all material Taxes with respect to EDW and each of its subsidiaries have been paid in full or have been provided for in accordance with GAAP on EDW's most recent balance sheet which is part of the EDW SEC Documents; (iii) there are no outstanding agreements or waivers extending the statutory period of limitations applicable to any federal, state, local or foreign income or other material Tax Returns required to be filed by or with respect to EDW or its subsidiaries; (iv) to the knowledge of EDW none of the Tax Returns of or with respect to EDW or any of its subsidiaries is currently being audited or examined by any Governmental Entity; and (v) no deficiency for any income or other material Taxes has been assessed with respect to EDW or any of its subsidiaries which has not been abated or paid in full. Section 3.14. Title to Property. EDW and each of its subsidiaries have good and defensible title to all of their properties and assets, free and clear of all liens, charges and encumbrances except liens for taxes not yet due and payable and such liens or other imperfections of title, if any, as do not materially detract from the value of or interfere with the present use of the property affected thereby or which, individually or in the aggregate, would not have a Material Adverse Effect on EDW; and, to EDW's knowledge, all leases pursuant to which EDW or any of its subsidiaries lease from others real or personal property are in good standing, valid and effective in accordance with their respective terms, and there is not, to the knowledge of EDW, 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 and in respect of which EDW or such subsidiary has not taken adequate steps to prevent such a default from occurring) except where the lack of such good standing, validity and effectiveness, or the existence of such default or event of default would not have a Material Adverse Effect on EDW. Section 3.15. Intellectual Property. (a) Each of EDW and its subsidiaries owns, or possesses adequate licenses or other valid rights to use, all existing United States and foreign patents, trademarks, trade names, services marks, copyrights, trade secrets, and applications therefore that are material to its business as currently conducted (the "EDW Intellectual Property Rights"). (b) Except as set forth in Section 3.15(b) of the EDW Disclosure Schedule the validity of the EDW Intellectual Property Rights and the title thereto of EDW or any subsidiary, as the case may be, is not being questioned in any litigation to which EDW or any subsidiary is a party. (c) The conduct of the business of EDW as now conducted does not, to EDW's knowledge, infringe any valid patents, trademarks, trade names, service marks or copyrights of others. The consummation of the transactions contemplated hereby will not result in the loss or impairment of any EDW Intellectual Property Rights. (d) EDW has taken steps it believes appropriate to protect and maintain its trade secrets as such, except in cases where EDW has elected to rely on patent or copyright protection in lieu of trade secret protection. Section 3.16. Insurance. EDW currently does not maintain general liability and other business insurance. Section 3.17. Vote Required. The affirmative vote of the holders of at least a majority of the outstanding EDW Shares is the only vote of the holders of any class or series of EDW's capital stock necessary to approve and adopt this Agreement and the Merger. Section 3.18. Tax Treatment. Neither EDW nor, to the knowledge of EDW, any of its affiliates has taken or agreed to take any action that would prevent the Merger from constituting a reorganization qualifying under the provisions of Section 368(a) of the Code. Section 3.19. Affiliates. Except for the directors and executive officers of EDW, each of whom is listed in Section 3.19 of the EDW Disclosure Schedule, there are no persons who, to the knowledge of EDW, may be deemed to be affiliates of EDW under Rule 1-02(b) of Regulation S-X of the SEC (the "EDW Affiliates"). Section 3.20. Certain Business Practices. None of EDW, any of its subsidiaries or any directors, officers, agents or employees of EDW or any of its subsidiaries has (i) used any funds for unlawful contributions, gifts, entertainment or other unlawful expenses relating to political activity, (ii) made any unlawful payment to foreign or domestic government officials or employees or to foreign or domestic political parties or campaigns or violated any provision of the FCPA, or (iii) made any other unlawful payment. Section 3.21. Insider Interests. Except as set forth in Section 3.21 of the EDW Disclosure Schedule, no officer or director of EDW has any interest in any material property, real or personal, including without limitation, any computer software or EDW Intellectual Property Rights, used in or pertaining to the business of EDW or any subsidiary, except for the ordinary rights of a stockholder or employee stock option holder. Section 3.22. Opinion of Financial Adviser. No advisers, as of the date hereof, have delivered to the EDW Board a written opinion to the effect that, as of such date, the exchange ratio contemplated by the Merger is fair to the holders of EDW Shares. Section 3.23. Brokers. No broker, finder or investment banker (other than the EDW Financial Adviser, a true and correct copy of whose engagement agreement has been provided to EGX) is entitled to any brokerage, finders or other fee or commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of EDW. Section 3.24. Disclosure. No representation or warranty of EDW in this Agreement or any certificate, schedule, document or other instrument furnished or to be furnished to EGX pursuant hereto or in connection herewith contains, as of the date of such representation, warranty or instrument, or will contain any untrue statement of a material fact or, at the date thereof, omits or will omit to state a material fact necessary to make any statement herein or therein, in light of the circumstances under which such statement is or will be made, not misleading. Section 3.25. No Existing Discussions. As of the date hereof, EDW is not engaged, directly or indirectly, in any discussions or negotiations with any other party with respect to any Third Party Acquisition (as defined in Section 5.4). ARTICLE 4 Covenants Section 4.1. Conduct of Business of EGX. Except as contemplated by this Agreement or as described in Section 4.1 of the EGX Disclosure Schedule, during the period from the date hereof to the Effective Time, EGX will conduct its operations in the ordinary course of business consistent with past practice and, to the extent consistent therewith, with no less diligence and effort than would be applied in the absence of this Agreement, seek to preserve intact its current business organization, keep available the service of its current officers and employees and preserve its relationships with customers, suppliers and others having business dealings with it to the end that goodwill and ongoing businesses shall be unimpaired at the Effective Time. Without limiting the generality of the foregoing, except as otherwise expressly provided in this Agreement or as described in Section 4.1 of the EGX Disclosure Schedule, prior to the Effective Time, EGX will not, without the prior written consent of EDW: (a) amend its Articles of Incorporation or Bylaws (or other similar governing instrument); (b) amend the terms of any stock of any class or any other securities (except bank loans) or equity equivalents. (c) split, combine or reclassify any shares of its capital stock, declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock, make any other actual, constructive or deemed distribution in respect of its capital stock or otherwise make any payments to stockholders in their capacity as such, or redeem or otherwise acquire any of its securities; (d) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of EGX (other than the Merger); (e) (i) incur or assume any long-term or short-term debt or issue any debt securities except for borrowings or issuances of letters of credit under existing lines of credit in the ordinary course of business; (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person. (iii) make any loans, advances or capital contributions to, or investments in, any other person; (iv) pledge or otherwise encumber shares of capital stock of EGX; or (v) mortgage or pledge any of its material assets, or create or suffer to exist any material Lien thereupon (other than tax Liens for taxes not yet due); (f) except as may be required by law, enter into, adopt or amend or terminate any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, restricted stock, performance unit, stock equivalent, stock purchase agreement, pension, retirement, deferred compensation, employment, severance or other employee benefit agreement, trust, plan, fund or other arrangement for the benefit or welfare of any director, officer or employee in any manner, or increase in any manner the compensation or fringe benefits of any director, officer or employee or pay any benefit not required by any plan and arrangement as in effect as of the date hereof (including, without limitation, the granting of stock appreciation rights or performance units); provided, however, that this paragraph (f) shall not prevent EGX from (i) entering into employment agreements or severance agreements with employees in the ordinary course of business and consistent with past practice or (ii) increasing annual compensation and/or providing for or amending bonus arrangements for employees or fiscal 2000 in the ordinary course of year-end compensation reviews consistent with past practice and paying bonuses to employees for fiscal 2000 in amounts previously disclosed to EDW (to the extent that such compensation increases and new or amended bonus arrangements do not result in a material increase in benefits or compensation expense to EGX); (g) acquire, sell, lease or dispose of any assets in any single transaction or series of related transactions (other than in the ordinary course of business); (h) except as may be required as a result of a change in law or in generally accepted accounting principles, change any of the accounting principles or practices used by it; (i) revalue in any material respect any of its assets including, without limitation, writing down the value of inventory or writing-off notes or accounts receivable other than in the ordinary course of business; (j) (i) acquire (by merger, consolidation, or acquisition of stock or assets) any corporation, partnership or other business organization or division thereof or any equity interest therein; (ii) enter into any contract or agreement other than in the ordinary course of business consistent with past practice which would be material to EGX; (iii) authorize any new capital expenditure or expenditures which, individually is in excess of $1,000 or, in the aggregate, are in excess of $5,000; provided, however that none of the foregoing shall limit any capital expenditure required pursuant to existing contracts; (k) make any tax election or settle or compromise any income tax liability material to EGX; (l) settle or compromise any pending or threatened suit, action or claim which (i) relates to the transactions contemplated hereby or (ii) the settlement or compromise of which could have a Material Adverse Effect on EGX; (m) commence any material research and development project or terminate any material research and development project that is currently ongoing, in either case, except pursuant to the terms of existing contracts or in the ordinary course of business; or (n) take, or agree in writing or otherwise to take, any of the actions described in Sections 4.1(a) through 4.1(m) or any action which would make any of the representations or warranties of contained in this Agreement untrue or incorrect. Section 4.2. Conduct of Business of EDW. Except as contemplated by this Agreement or as described in Section 4.2 of the EDW Disclosure Schedule during the period from the date hereof to the Effective Time, EDW will conduct its operations in the ordinary course of business consistent with past practice and, to the extent consistent therewith, with no less diligence and effort than would be applied in the absence of this Agreement, seek to preserve intact its current business organization, keep available the service of its current officers and employees and preserve its relationships with customers, suppliers and others having business dealings with it to the end that goodwill and ongoing businesses shall be unimpaired at the Effective Time. Without limiting the generality of the foregoing, except as otherwise expressly provided in this Agreement or as described in Section 4.2 of the EDW Disclosure Schedule, prior to the Effective Time, EDW will not, without the prior written consent of: (a) amend its Articles of Incorporation or Bylaws (or other similar governing instrument); (b) authorize for issuance, issue, sell, deliver or agree or commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any stock of any class or any other securities (except bank loans) or equity equivalents (including, without limitation, any stock options or stock appreciation rights; (c) split, combine or reclassify any shares of its capital stock, declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock, make any other actual, constructive or deemed distribution in respect of its capital stock or otherwise make any payments to stockholders in their capacity as such, or redeem or otherwise acquire any of its securities; (d) adopt a plan of complete or partial liquidation, dissolution, merger consolidation, restructuring, recapitalization or other reorganization of EDW (other than the Merger); (e) (i) incur or assume any long-term or short-term debt or issue any debt securities except for borrowings or issuances of letters of credit under existing lines of credit in the ordinary course of business. (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person; (iii) make any loans, advances or capital contributions to or investments in, any other person; (iv) pledge or otherwise encumber shares of capital stock of EDW or its subsidiaries; or (v) mortgage or pledge any of its material assets, or create or suffer to exist any material Lien thereupon (other than tax Liens for taxes not yet due); (f) except as may be required by law, enter into, adopt or amend or terminate any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, restricted stock, performance unit stock equivalent, stock purchase agreement, pension, retirement, deferred compensation, employment, severance or other employee benefit agreement, trust, plan, fund or other arrangement for the benefit or welfare of any director, officer or employee in any manner, or increase in any manner the compensation or fringe benefits of any director, officer or employee or pay any benefit not required by any plan and arrangement as in effect as of the date hereof (including, without limitation, the granting of stock appreciation rights or performance units); provided, however, that this paragraph (f) shall not prevent EDW or its subsidiaries from (i) entering into employment agreements or severance agreements with employees in the ordinary course of business and consistent with past practice or (ii) increasing annual compensation and/or providing for or amending bonus arrangements for employees for fiscal 2003 in the ordinary course of yearend compensation reviews consistent with past practice and paying bonuses to employees for fiscal 2003 in amounts previously disclosed to (to the extent that such compensation increases and new or amended bonus arrangements do not result in a material increase in benefits or compensation expense to EDW); (g) acquire, sell, lease or dispose of any assets in any single transaction or series of related transactions other than in the ordinary course of business; (h) except as may be required as a result of a change in law or in generally accepted accounting principles, change any of the accounting principles or practices used by it; (i) revalue in any material respect any of its assets, including, without limitation, writing down the value of inventory of writing-off notes or accounts receivable other than in the ordinary course of business; (j) (i) acquire (by merger, consolidation, or acquisition of stock or assets) any corporation, partnership, or other business organization or division thereof or any equity interest therein; (ii) enter into any contract or agreement other than in the ordinary course of business consistent with past practice which would be material to EDW; (iii) authorize any new capital expenditure or expenditures which, individually, is in excess of $1,000 or, in the aggregate, are in excess of $5,000: provided, however that none of the foregoing shall limit any capital expenditure required pursuant to existing contracts; (k) make any tax election or settle or compromise any income tax liability material to EDW and its subsidiaries taken as a whole; (l) settle or compromise any pending or threatened suit, action or claim which (i) relates to the transactions contemplated hereby or (ii) the settlement or compromise of which could have a Material Adverse Effect on EDW; (m) commence any material research and development project or terminate any material research and development project that is currently ongoing, in either case, except pursuant to the terms of existing contracts or except in the ordinary course of business; or (n) take, or agree in writing or otherwise to take, any of the actions described in Sections 4.2(a) through 4.2(m) or any action which would make any of the representations or warranties of the EDW contained in this Agreement untrue or incorrect. Section 4.3. Preparation of 8-K. EDW and EGX shall promptly prepare and file with the SEC an 8-K disclosing this merger with audited financials of EGX along with pro forma combined statements. Section 4.4. Other Potential Acquirers. (a) EDW, its affiliates and their respective officers, directors, employees, representatives and agents shall immediately cease any existing discussions or negotiations, if any, with any parties conducted heretofore with respect to any Third Party Acquisition. Section 4.6. Access to Information. (a) Between the date hereof and the Effective Time, EGX will give EDW and its authorized representatives, and EDW will give EGX and its authorized representatives, reasonable access to all employees, plants, offices, warehouses and other facilities and to all books and records of itself and its subsidiaries, will permit the other party to make such inspections as such party may reasonably require and will cause its officers and those of its subsidiaries to furnish the other party with such financial and operating data and other information with respect to the business and properties of itself and its subsidiaries as the other party may from time to time reasonably request. (b) Between the date hereof and the Effective Time, EGX shall furnish to EDW, and EDW will furnish to EGX, within 25 business days after the end of each quarter, quarterly statements prepared by such party in conformity with its past practices) as of the last day of the period then ended. (c) Each of the parties hereto will hold and will cause its consultants and advisers to hold in confidence all documents and information furnished to it in connection with the transactions contemplated by this Agreement. Section 4.7. Additional Agreements, Reasonable Efforts. Subject to the terms and conditions herein provided, each of the parties hereto agrees to use all reasonable efforts to take, or cause to be taken, all action, and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement, including, without limitation, (i) cooperating in the preparation and filing of the 8-K, any filings that may be required under the HSR Act, and any amendments to any thereof; (ii) obtaining consents of all third parties and Governmental Entities necessary, proper or advisable for the consummation of the transactions contemplated by this Agreement; (iii) contesting any legal proceeding relating to the Merger and (iv) the execution of any additional instruments necessary to consummate the transactions contemplated hereby. Subject to the terms and conditions of this Agreement, EDW and EGX agree to use all reasonable efforts to cause the Effective Time to occur as soon as practicable after the stockholder votes with respect to the Merger. In case at any time after the Effective Time any further action is necessary to carry out the purposes of this Agreement, the proper officers and directors of each party hereto shall take all such necessary action. Section 4.8. Indemnification. (a) To the extent, if any, not provided by an existing right under one of the parties' directors and officers liability insurance policies, from and after the Effective Time, EGX shall, to the fullest extent permitted by applicable law, indemnify, defend and hold harmless each person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a director, officer or employee of the parties hereto or any subsidiary thereof (each an "Indemnified Party" and, collectively, the "Indemnified Parties") against all losses, expenses (including reasonable attorneys' fees and expenses), claims, damages or liabilities or, subject to the proviso of the next succeeding sentence, amounts paid in settlement arising out of actions or omissions occurring at or prior to the Effective Time and whether asserted or claimed prior to, at or after the Effective Time) that are in whole or in part (i) based on, or arising out of the fact that such person is or was a director, officer or employee of such party or a subsidiary of such party or (ii) based on, arising out of or pertaining to the transactions contemplated by this Agreement. In the event of any such loss expense, claim, damage or liability (whether or not arising before the Effective Time), (i) EGX shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to EGX, promptly after statements therefore are received and otherwise advance to such Indemnified Party upon request reimbursement of documented expenses reasonably incurred, in either case to the extent not prohibited by the NGCL or its Articles of Incorporation or bylaws, (ii) EGX will cooperate in the defense of any such matter and (iii) any determination required to be made with respect to whether an Indemnified Party's conduct complies with the standards set forth under the NGCL and EGX's Articles of Incorporation and bylaws shall be made by independent counsel mutually acceptable to EGX and the Indemnified Party; provided, however, that EGX shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld). The Indemnified Parties as a group may retain only one law firm with respect to each related matter except to the extent there is, in the opinion of counsel to an Indemnified Party, under applicable standards of professional conduct, conflict on any significant issue between positions of any two or more Indemnified Parties. (b) In the event EGX or any of its successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity or such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any person, then and in either such case, proper provision shall be made so that the successors and assigns of EGX shall assume the obligations set forth in this Section 4.9. (c) To the fullest extent permitted by law, from and after the Effective Time, all rights to indemnification now existing in favor of the employees, agents, directors or officers of EGX and EDW and their subsidiaries with respect to their activities as such prior to the Effective Time, as provided in EGX's and EDW's Articles of Incorporation or bylaws, in effect on the date thereof or otherwise in effect on the date hereof, shall survive the Merger and shall continue in full force and effect for a period of not less than two years from the Effective Time. (d) The provisions of this Section 4.9 are intended to be for the benefit of, and shall be enforceable by, each Indemnified Party, his or her heirs and his or her representatives. Section 4.9. Notification of Certain Matters. The parties hereto shall give prompt notice to the other parties, of (i) the occurrence or nonoccurrence of any event the occurrence or nonoccurrence of which would be likely to cause any representation or warranty contained in this Agreement to be untrue or inaccurate in any material respect at or prior to the Effective Time, (ii) any material failure of such party to comply with or satisfy any covenant, condition or agreement to be complied with or satisfied by it hereunder, (iii) any notice of, or other communication relating to, a default or event which, with notice or lapse of time or both, would become a default, received by such party or any of its subsidiaries subsequent to the date of this Agreement and prior to the Effective Time, under any contract or agreement material to the financial condition, properties, businesses or results of operations of such party and its subsidiaries taken as a whole to which such party or any of its subsidiaries is a party or is subject, (iv) any notice or other communication from any third party alleging that the consent of such third party is or may be required in connection with the transactions contemplated by this Agreement, or (v) any material adverse change in their respective financial condition, properties, businesses, results of operations or prospects taken as a whole, other than changes resulting from general economic conditions; provided, however, that the delivery of any notice pursuant to this Section 4.10 shall not cure such breach or non-compliance or limit or otherwise affect the remedies available hereunder to the party receiving such notice. ARTICLE 5 Conditions to Consummation of the Merger Section 5.1. Conditions to Each Party's Obligations to Effect the Merger. The respective obligations of each party hereto to effect the Merger are subject to the satisfaction at or prior to the Effective Time of the following conditions: (a) this Agreement shall have been approved and adopted by the requisite vote of the stockholders of EDW; (b) this Agreement shall have been approved and adopted by the Board of Directors of EGX and EDW; (c) no statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or enforced by any United States court or United States governmental authority which prohibits, restrains, enjoins or restricts the consummation of the Merger; (d) any waiting period applicable to the Merger under the HSR Act shall have terminated or expired, and any other governmental or regulatory notices or approvals required with respect to the transactions contemplated hereby shall have been either filed or received; and Section 5.2. Conditions to the Obligations of EGX. The obligation of EGX to effect the Merger is subject to the satisfaction at or prior to the Effective Time of the following conditions: (a) the representations of EDW contained in this Agreement or in any other document delivered pursuant hereto shall be true and correct (except to the extent that the breach thereof would not have a Material Adverse Effect on EDW) at and as of the Effective Time with the same effect as if made at and as of the Effective Time (except to the extent such representations specifically related to an earlier date, in which case such representations shall be true and correct as of such earlier date), and at the Closing EDW shall have delivered to EGX a certificate to that effect; (b) each of the covenants and obligations of EDW to be performed at or before the Effective Time pursuant to the terms of this Agreement shall have been duly performed in all material respects at or before the Effective Time and at the Closing EDW shall have delivered to EGX a certificate to that effect; (d) EDW shall have obtained the consent or approval of each person whose consent or approval shall be required in order to permit the Merger as relates to any obligation, right or interest of EDW under any loan or credit agreement, note, mortgage, indenture, lease or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, in the reasonable opinion of EGX, individually or in the aggregate, have a Material Adverse Effect on EDW; (e) there shall have been no events, changes or effects with respect to EDW or its subsidiaries having or which could reasonably be expected to have a Material Adverse Effect on EDW; and Section 5.3. Conditions to the Obligations of EDW. The respective obligations of EDW to effect the Merger are subject to the satisfaction at or prior to the Effective Time of the following conditions: (a) the representations of EGX contained in this Agreement or in any other document delivered pursuant hereto shall be true and correct (except to the extent that the breach thereof would not have a Material Adverse Effect on EGX) at and as of the Effective Time with the same effect as if made at and as of the Effective Time (except to the extent such representations specifically related to an earlier date, in which case such representations shall be true and correct as of such earlier date), and at the Closing EGX shall have delivered to EDW a certificate to that effect; (b) each of the covenants and obligations of EGX to be performed at or before the Effective Time pursuant to the terms of this Agreement shall have been duly performed in all material respects at or before the Effective Time and at the Closing EGX shall have delivered to EDW a certificate to that effect; (c) there shall have been no events, changes or effects with respect to EGX having or which could reasonably be expected to have a Material Adverse Effect on EGX. ARTICLE 6 Termination; Amendment; Waiver Section 6.1. Termination. This Agreement may be terminated and the Merger may be abandoned at any time prior to the Effective Time, whether before or after approval and adoption of this Agreement by EGX's or EDW's stockholders: (a) by mutual written consent of EGX and EDW; (b) by EDW or EGX if (i) any court of competent jurisdiction in the United States or other United States Governmental Entity shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become nonappealable or (ii) the Merger has not been consummated by December 31, 2004; provided, however, that no party may terminate this Agreement pursuant to this clause (ii) if such party's failure to fulfill any of its obligations under this Agreement shall have been the reason that the Effective Time shall not have occurred on or before said date; (c) by EGX if (i) there shall have been a breach of any representation or warranty on the part of EDW set forth in this Agreement, or if any representation or warranty of EDW shall have become untrue, in either case such that the conditions set forth in Section 5.2(a) would be incapable of being satisfied by Dec 20, 2004 (or as otherwise extended), (ii) there shall have been a breach by EDW of any of their respective covenants or agreements hereunder having a Material Adverse Effect on EDW or materially adversely affecting (or materially delaying) the consummation of the Merger, and EDW, as the case may be, has not cured such breach within 20 business days after notice by EGX thereof, provided that EGX has not breached any of its obligations hereunder, (iii) EGX shall have convened a meeting of its stockholders to vote upon the Merger and shall have failed to obtain the requisite vote of its stockholders; or (iv) EGX shall have convened a meeting of its Board of Directors to vote upon the Merger and shall have failed to obtain the requisite vote; (d) by EDW if (i) there shall have been a breach of any representation or warranty on the part of EGX set forth in this Agreement, or if any representation or warranty of EGX shall have become untrue, in either case such that the conditions set forth in Section 5.3(a) would be incapable of being satisfied by Dec. 20, 2004 (or as otherwise extended), (ii) there shall have been a breach by EGX of its covenants or agreements hereunder having a Material Adverse Effect on EGX or materially adversely affecting (or materially delaying) the consummation of the Merger, and EGX, as he case may be, has not cured such breach within twenty business days after notice by EDW thereof, provided that EDW has not breached any of its obligations hereunder, (iii) the EGX Board shall have recommended to EGX's stockholders a Superior Proposal, (iv) the EGX Board shall have withdrawn, modified or changed its approval or recommendation of this Agreement or the Merger, or hold a stockholders' meeting to vote upon the Merger, or shall have adopted any resolution to effect any of the foregoing, (v) EDW shall have convened a meeting of its stockholders to vote upon the Merger and shall have failed to obtain the requisite vote of its stockholders. Section 6.2. Effect of Termination. In the event of the termination and abandonment of this Agreement pursuant to Section 6.1, this Agreement shall forthwith become void and have no effect, without any liability on the part of any party hereto or its affiliates, directors, officers or stockholders, other than the provisions of this Section 6.2 and Sections 4.7(c) and 6.3 hereof. Nothing contained in this Section 6.2 shall relieve any party from liability for any breach of this Agreement. Section 6.3. Fees and Expenses. Except as specifically provided in this Section 6.3, each party shall bear its own expenses in connection with this Agreement and the transactions contemplated hereby. Section 6.4. Amendment. This Agreement may be amended by action taken by EGX and EDW at any time before or after approval of the Merger by the stockholders of EGX and EDW (if required by applicable law) but, after any such approval, no amendment shall be made which requires the approval of such stockholders under applicable law without such approval. This Agreement may not be amended except by an instrument in writing signed on behalf of the parties hereto. Section 6.5. Extension; Waiver. At any time prior to the Effective Time, each party hereto may (i) extend the time for the performance of any of the obligations or other acts of any other party, (ii) waive any inaccuracies in the representations and warranties of any other party contained herein or in any document, certificate or writing delivered pursuant hereto or (iii) waive compliance by any other party with any of the agreements or conditions contained herein. Any agreement on the part of any party hereto to any such extension or waiver shall be valid only if set forth in an instrument in writing signed on behalf of such party. The failure of any party hereto to assert any of its rights hereunder shall not constitute a waiver of such rights. ARTICLE 7 Miscellaneous Section 7.1. Nonsurvival of Representations and Warranties. The representations and warranties made herein shall not survive beyond the Effective Time or a termination of this Agreement. This Section 7.1 shall not limit any covenant or agreement of the parties hereto which by its terms requires performance after the Effective Time. Section 7.2. Entire Agreement; Assignment. This Agreement (a) constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all other prior agreements and understandings both written and oral, between the parties with respect to the subject matter hereof and (b) shall not be assigned by operation of law or otherwise. Section 7.3. Validity. If any provision of this Agreement, or the application thereof to any person or circumstance, is held invalid or unenforceable, the remainder of this Agreement, and the application of such provision to other persons or circumstances, shall not be affected thereby, and to such end, the provisions of this Agreement are agreed to be severable. Section 7.4. Notices. All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be given (and shall be deemed to have been duly given upon receipt) by delivery in person, by facsimile or by registered or certified mail (postage prepaid, return receipt requested), to each other party as follows: If to EDW: EDW, INC. Attn: Edward Zimmerman, Jr. 3415 Ocatillo Mesa Way North Las Vegas, NV 89031 if to EGX: Energenx, Inc. Attn: Gary A. Bedini 6200 E. Commerce Loop Post Falls, ID 83854 or to such other address as the person to whom notice is given may have previously furnished to the others in writing in the manner set forth above. Section 7.5. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Nevada, without regard to the principles of conflicts of law thereof. Section 7.6. Descriptive Headings. The descriptive headings herein are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement. Section 7.7. Parties in Interest. This Agreement shall be binding upon and inure solely to the benefit of each party hereto and its successors and permitted assigns, and except as provided in Sections 4.9 and 4.11, nothing in this Agreement, express or implied, is intended to or shall confer upon any other person any rights, benefits or remedies of any nature whatsoever under or by reason of this Agreement. Section 7.8. Certain Definitions. For the purposes of this Agreement, the term: (a) "affiliate" means (except as otherwise provided in Sections 2.19 and 3.19 a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person; (b) "business day" means any day other than a day on which Nasdaq is closed; (c) "capital stock" means common stock, preferred stock, partnership interests, limited liability company interests or other ownership interests entitling the holder thereof to vote with respect to matters involving the issuer thereof; (d) "knowledge" or "known" means, with respect to any matter in question, if an executive officer of EGX or EDW or its subsidiaries, as the case may be, has actual knowledge of such matter; (e) "person" means an individual, corporation, partnership, limited liability company, association, trust, unincorporated organization or other legal entity; and (f) "subsidiary" or "subsidiaries" of EGX, EDW or any other person, means any corporation, partnership, limited liability company, association, trust, unincorporated association or other legal entity of which EGX, EDW or any such other person, as the case may be (either alone or through or together with any other subsidiary), owns, directly or indirectly, 50% or more of the capital stock, the holders of which are generally entitled to vote for the election of the board of directors or other governing body of such corporation or other legal entity. Section 7.9. Personal Liability. This Agreement shall not create or be deemed to create or permit any personal liability or obligation on the part of any direct or indirect stockholder of EGX, EDW or any officer, director, employee, agent, representative or investor of any party hereto. Section 7.10. Specific Performance. The parties hereby acknowledge and agree that the failure of any party to perform its agreements and covenants hereunder, including its failure to take all actions as are necessary on its part to the consummation of the Merger, will cause irreparable injury to the other parties for which damages, even if available, will not be an adequate remedy. Accordingly, each party hereby consents to the issuance of injunctive relief by any court of competent jurisdiction to compel performance of such party's obligations and to the granting by any court of the remedy of specific performance of its obligations hereunder; provided, however, that, if a party hereto is entitled to receive any payment or reimbursement of expenses pursuant to Sections 6.3(a), (b) or (c), it shall not be entitled to specific performance to compel the consummation of the Merger. Section 7.11. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement. In Witness Whereof, each of the parties has caused this Agreement to be duly executed on its behalf as of the day and year first above written. ENERGENX, INC. By: /s/ Gary A. Bedini ---------------------- Name: Gary A. Bedini Title: President Edward II, Inc. By: /s/ Edward Zimmerman, Jr. ----------------------------- Name: Edward Zimmerman, Jr. Title: President EGX DISCLOSURE SCHEDULE Schedule 2.1 Organization See Articles/Bylaws Schedule 2.2(a) Options, Stock Preference Rights Not Applicable Schedule 2.6 Consents & Approvals None Provided Schedule 2.7 No Default Not Applicable Schedule 2.8 No Undisclosed Liability None Exist Schedule 2.9 Litigation Not Applicable Schedule 2.10 Compliance with Applicable Law None Schedule 2.11 Employee Benefit Plans None Schedule 2.12 Environmental Laws and Regs Not Applicable Schedule 2.13 Tax Matters None Exist Schedule 2.14 Title to Property None Exist Schedule 2.15 Intellectual Property None Exist Schedule 2.16 Insurance None Exist Schedule 2.17 Vote Required None Required Schedule 2.18 Tax Treatment Not Applicable Schedule 2.19 Affiliates Gary A. Bedini Schedule 2.20 Certain Business Practices None Exist Schedule 2.21 Insider Interest Not Applicable Schedule 2.22 Opinion of Financial Adviser Waived - None Exist Schedule 2.23 Broker None Exist Schedule 4.1 Conduct of Business None Provided EDW DISCLOSURE SCHEDULE Schedule 3.2(b) Subsidiary Stock None Exist Schedule 3.2(c) Capital Stock Rights None Exist other than as in Articles Schedule 3.2(d) Securities conversions None Exist Schedule 3.2 (f) Subsidiaries None Exist Schedule 3.6 Consents & Approvals Provided Schedule 3.7 No Default Not Applicable Schedule 3.8 No Undisclosed Liability None Exist Schedule 3.9 Litigation None Exist Schedule 3.10 Compliance with Applicable Law Not Applicable - full disclosed in 10-KSB Schedule 3.11 Employee Benefit Plans Section 3.11( c)No Options Exist Section 3.11(e) No Agreements Exist Schedule 3.12 Environmental Laws and Regs Not Applicable Schedule 3.13 Tax Matters None Exist Schedule 3.14 Title to Property None Exist Schedule 3.15(b) Intellectual Property None Exist Schedule 3.16 Insurance None Exist Schedule 3.17 Vote Required See Shareholder Meeting Certificate Schedule 3.18 Tax Treatment Not Applicable Schedule 3.19 Affiliates Edward Zimmerman, Jr. Schedule 3.20 Certain Business Practices None Exist Schedule 3.21 Insider Interest None Exist Schedule 3.22 Opinion of Financial Adviser Waived - None Exist Schedule 3.23 Broker None Exist Schedule 4.2 Conduct of Business See Amended Articles Exhibit A CERTIFICATE OF MERGER OF ENERGENX, INC. a Nevada corporation and EDW, Inc. a Nevada corporation The undersigned corporations, ENERGENX, INC., a Nevada corporation ("EGX"), and EDW, Inc. a Nevada corporation ("EDW"), do hereby certify: 1. EGX is a corporation duly organized and validly existing under the laws of the State of Nevada. Articles of Incorporation were originally filed on September 29, 1999. 2. EDW is a corporation duly organized and validly existing under the laws of the State of Nevada. Articles of Incorporation were originally filed on March 30, 2004. 3. EGX and EDW are parties to a Merger Agreement, pursuant to which EDW will be merged with and into EGX. Upon completion of the merger EGX will be the surviving corporation in the merger and EDW will be dissolved. Pursuant to the Merger Agreement the stockholders of EDW will receive stock in EGX. For purposes of service, the address for EGX is 6200 E. Commerce Loop, Post Falls, ID 83854. 4. The Articles of Incorporation and Bylaws of EDW as existing prior to the effective date of the merger shall continue in full force as the Articles of Incorporation and Bylaws of the surviving corporation. 5. The complete executed Agreement and Plan of Merger dated as of December 28, 2004, which sets forth the plan of merger providing for the merger of EDW with and into EGX is on file at the corporate offices of EGX. 6. A copy of the Merger Agreement will be furnished by EGX on request and without cost to any stockholder of any corporation which is a party to the merger. 7. The plan of merger as set forth in the Agreement and Plan of Merger, has been approved by a majority of the Board of Directors of EDW at a meeting held December 28, 2004. 8. EDW has 430,000 shares of common stock issued, outstanding and entitled to vote on the merger. At a meeting of the Shareholders of EDW held December 28, 2004, all 430,000 shares voted in favor of the merger. 9. The plan of merger as set forth in the Agreement and Plan of Merger, was approved by a majority of the Board of Directors of EGX at a meeting held December 28, 2004. 10. The manner in which the exchange of issued shares of EGX shall be affected is set forth in the Agreement and Plan of Merger. IN WITNESS WHEREOF, the undersigned have executed these Certificate of Merger this 28th day of December, 2004. ENERGENX, INC. By: /s/ Gary A. Bedini ---------------------- Name: Gary A. Bedini Title: President EDW, INC. By: /s/ Edward Zimmerman, Jr. ----------------------------- Name: Edward Zimmerman, Jr. Title: President Exhibit B RESOLUTION IN LIEU OF STOCKHOLDERS MEETING THE UNDERSIGNED, being the Stockholders of Edward II, Inc., a Nevada Corporation, in lieu of a Stockholders meeting, hereby consent to the following resolutions: RESOLVED, that the Corporation enter into an Acquisition Agreement and Plan of Merger with ENERGENX, INC. (A copy of which is attached) with ENERGENX, INC. remaining as the surviving corporation, and be it FURTHER RESOLVED, that the Corporation officers are hereby authorized to execute any and all documents necessary to accomplish the merger. DATED: December 28, 2004 /s/ Edward Zimmerman, Jr. ------------------------- Edward Zimmerman, Jr.