EXHIBIT 8.1
AGREEMENT AND PLAN OF REORGANIZATION
This Agreement and Plan of Reorganization (the "Agreement"), entered into
this 17th day of February 1999, is by, between, and among Florida Venture Fund,
Inc., a Florida corporation (hereinafter"FVFI"), Information Highway, Inc., a
Washington corporation (hereinafter "IHI"), and the shareholders of IHI who have
executed Subscription Agreements in the form attached in Exhibit "A" hereto (the
"Shareholders").
RECITALS:
WHEREAS, FVFI wishes to acquire, and the Shareholders, by executing Exhibit
"A" hereto, are willing to sell, a majority the outstanding stock of IHI in
exchange solely for a part of the voting stock of FVFI whereby the Shareholders
would acquire a controlling interest of FVFI; and
WHEREAS, the parties hereto intend to qualify such transaction as a tax-
free exchange pursuant to the provisions of the Internal Revenue Code of 1986,
as amended;
NOW, THEREFORE, based upon the stated premises, which are incorporated
herein by reference, and for and in consideration of the mutual covenants and
agreements set forth herein, the mutual benefits to the parties to be derived
herefrom, and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto approve and adopt this
Agreement and Plan of Reorganization and mutually covenant and agree with each
other as follows:
1. Shares to be Transferred and Shares to be Issued.
1.1 Provided that Shareholders owning at least a majority of the
outstanding shares of IHI execute and deliver copies of Exhibit "A" on or before
the Closing Date, the Shareholders shall transfer to FVFI certificates for the
number of shares of the common stock of IHI represented by such shares of the
common stock of IHI.
1.2 In exchange for the transfer of the common stock of IHI pursuant
to subsection 1.1. hereof, FVFI shall on the Closing Date and contemporaneously
with such transfer of the common stock of IHI to it by the Shareholders issue
and deliver to the Shareholders one share of the common stock of FVFI for each
share of IHI transferred pursuant to this Agreement. In addition, FVFI hereby
assumes the obligation of IHI to issue shares pursuant to warrants and stock
options issued by IHI and outstanding as of Closing at the rate of one share of
FVFI for
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each share of IHI to have been issued pursuant to such outstanding warrants and
stock options.
1.3 On the Closing Date FVFI shall cause to be canceled 1,659,833
shares of outstanding Common Stock, such that at Closing FVFI shall have not
more than 319,667 shares of Common Stock outstanding.
2. Representations and Warranties of IHI. IHI represents and warrants to
FVFI as set forth below. These representations and warranties are made as an
inducement for FVFI to enter into this Agreement and, but for the making of such
representations and warranties and their accuracy, FVFI would not be a party
hereto.
2.1 Organization and Authority. IHI is a corporation duly organized,
validly existing and in good standing under the laws of the State of Washington
with full power and authority to enter into and perform the transactions
contemplated by this Agreement. IHI has three wholly owned subsidiaries, namely
Blue Crow Internet Company, Ltd., YesIC, Communications, Inc., and World Tel,
Internet (Toronto) Ltd., each of which was acquired by IHI in December 1996.
2.2 Capitalization. As of the date of the Closing, IHI will have a
total of no more than 5,650,000 shares of common stock issued and outstanding.
All of the shares will have been duly authorized and validly issued and will be
fully paid and nonassessable. There are no options, warrants, debentures,
conversion privileges, or other rights, agreements, or commitments obligating
IHI to issue or to transfer from treasury any additional shares of capital stock
of any class, other than common stock options to purchase 865,000 shares at from
$0.50 to $0.75 per share exercisable immediately and warrants to purchase
873,650 shares of common stock of IHI at $1.00 per share exercisable
immediately.
2.3 Directors. The names of all directors of IHI as of the date of
this Agreement are as follows: Xxxx X. Xxxxxxxxx, Xxxxxxxx Xxxxxxx, and Xxxxx
X. Xxxxxxxxx.
2.4 Performance of This Agreement. The execution and performance of
this Agreement and the transfer of stock contemplated hereby have been
authorized by the board of directors of IHI.
2.5 Financials. True copies of the financial statements of IHI
consisting of the balance sheets as of the fiscal year ended May 31, 1998
(audited) and the period ended November 30, 1998 (unaudited), and statements of
income, cash flow and changes in stockholder's equity for each of the periods
then ended, have been delivered by IHI to FVFI. These statements have been
examined and certified by Elliott, Tulk, Pryce, Anderson, Chartered Accountants.
Said financial statements are true and correct in all material respects and
present an
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accurate and complete disclosure of the financial condition of FVFI as of
November 30, 1998, and the earnings for the periods covered, in accordance with
generally accepted accounting principles applied on a consistent basis.
2.6 Liabilities. There are no material liabilities of IHI, whether
accrued, absolute, contingent or otherwise, which arose or relate to any
transaction of IHI, its agents or servants occurring prior to November 30, 1998,
which are not disclosed by or reflected in said financial statements. As of the
date hereof, there are no known circumstances, conditions, happenings, events or
arrangements, contractual or otherwise, which may hereafter give rise to
liabilities, except in the normal course of business of IHI.
2.7 Absence of Certain Changes or Events. Except as set forth in
this Agreement, since November 30, 1998, there has not been (i) any material
adverse change in the business, operations, properties, level of inventory,
assets, or condition of IHI, or (ii) any damage, destruction, or loss to IHI
(whether or not covered by insurance) materially and adversely affecting the
business, operations, properties, assets, or conditions of IHI.
2.8 Litigation. There are no legal, administrative or other
proceedings, investigations or inquiries, product liability or other claims,
judgments, injunctions or restrictions, either threatened, pending, or
outstanding against or involving IHI or its subsidiaries, if any, or their
assets, properties, or business, nor does IHI or its subsidiaries know, or have
reasonable grounds to know, of any basis for any such proceedings,
investigations or inquiries, product liability or other claims, judgments,
injunctions or restrictions. In addition, there are no material proceedings
existing, pending or reasonably contemplated to which any officer, director, or
affiliate of IHI or as to which any of the Shareholders is a party adverse to
IHI or any of its subsidiaries or has a material interest adverse to IHI or any
of its subsidiaries.
2.9 Taxes. All federal, state, foreign, county and local income,
profits, franchise, occupation, property, sales, use, gross receipts and other
taxes (including any interest or penalties relating thereto) and assessments
which are due and payable have been duly reported, fully paid and discharged as
reported by IHI, and there are no unpaid taxes which are, or could become a lien
on the properties and assets of IHI, except as provided for in the financial
statements of IHI, or have been incurred in the normal course of business of IHI
since that date. All tax returns of any kind required to be filed have been
filed and the taxes paid or accrued. There are no disputes as to taxes of any
nature payable by IHI.
2.10 Hazardous Materials. No hazardous material has been released,
placed, stored, generated, used, manufactured, treated, deposited, spilled,
discharged, released, or disposed of on or under any real property currently or
previously owned or leased by IHI or any of its subsidiaries.
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2.11 Accuracy of All Statements Made by IHI. No representation or
warranty by IHI in this Agreement, nor any statement, certificate, schedule, or
exhibit hereto furnished or to be furnished by or on behalf of IHI pursuant to
this Agreement, nor any document or certificate delivered to FVFI by IHI
pursuant to this Agreement or in connection with actions contemplated hereby,
contains or shall contain any untrue statement of material fact or omits or
shall omit a material fact necessary to make the statements contained therein
not misleading.
3. Representations and Warranties of FVFI. FVFI represents and warrants
to IHI as set forth below. These representations and warranties are made as an
inducement for IHI to enter into this Agreement and, but for the making of such
representations and warranties and their accuracy, IHI would not be parties
hereto.
3.1 Organization and Good Standing. FVFI is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Florida with full power and authority to enter into and perform the transactions
contemplated by this Agreement. FVFI does not have any subsidiaries or own any
interest in any other entity.
3.2 Capitalization. FVFI presently has outstanding 1,979,500 shares
of common stock. As of the date of the Closing, FVFI will have a total of no
more than 319,667 shares of common stock issued and outstanding (excluding the
shares to be issued pursuant to this Agreement). All of the outstanding shares
have been duly authorized and validly issued and are fully paid and
nonassessable. Except for FVFI's obligations hereunder with respect to the
shares to be issued pursuant to subsection 1.2 hereof, there are no options,
warrants, debentures, conversion privileges, or other rights, agreements, or
commitments obligating FVFI to issue or to transfer from treasury any additional
shares of capital stock of any class. As of the Closing, the Articles of
Incorporation, as amended, of FVFI and as currently in effect shall remain
unchanged, except as provided herein.
3.3 Performance of This Agreement. The execution and performance of
this Agreement and the issuance of stock contemplated hereby have been
authorized by the board of directors of FVFI.
3.4 Financials. True copies of the financial statements of FVFI
consisting of the balance sheets as of the fiscal years ended December 31, 1998,
1997, and 1996 (audited) and the period ended February 15, 1999 (unaudited), and
statements of income, cash flow and changes in stockholder's equity for each of
the periods then ended, have been delivered by FVFI to IHI. These statements
have been examined and certified by Xxxxx Xxxxx, Certified Public Accountant.
Said financial statements are true and correct in all material respects and
present an accurate and complete disclosure of the financial condition of FVFI
as of February 15, 1999, and
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the earnings for the periods covered, in accordance with generally accepted
accounting principles applied on a consistent basis.
3.5 Liabilities. There are no material liabilities of FVFI, whether
accrued, absolute, contingent or otherwise, which arose or relate to any
transaction of FVFI, its agents or servants which are not disclosed by or
reflected in said financial statements. As of the date hereof, there are no
known circumstances, conditions, happenings, events or arrangements, contractual
or otherwise, which may hereafter give rise to liabilities, except in the normal
course of business of FVFI.
3.6 Litigation. There are no legal, administrative or other
proceedings, investigations or inquiries, product liability or other claims,
judgments, injunctions or restrictions, either threatened, pending, or
outstanding against or involving FVFI or its subsidiaries, if any, or their
assets, properties, or business, nor does FVFI or its subsidiaries know, or have
reasonable grounds to know, of any basis for any such proceedings,
investigations or inquiries, product liability or other claims, judgments,
injunctions or restrictions. In addition, there are no material proceedings
existing, pending or reasonably contemplated to which any officer, director, or
affiliate of FVFI is a party adverse to FVFI or any of its subsidiaries or has a
material interest adverse to FVFI or any of its subsidiaries.
3.7 Taxes. All federal, state, foreign, county and local income,
profits, franchise, occupation, property, sales, use, gross receipts and other
taxes (including any interest or penalties relating thereto) and assessments
which are due and payable have been duly reported, fully paid and discharged as
reported by FVFI, and there are no unpaid taxes which are, or could become a
lien on the properties and assets of FVFI, except as provided for in the
financial statements of FVFI, or have been incurred in the normal course of
business of FVFI since that date. All tax returns of any kind required to be
filed have been filed and the taxes paid or accrued. There are no disputes as
to taxes of any nature payable by FVFI.
3.8 Hazardous Materials. No hazardous material has been released,
placed, stored, generated, used, manufactured, treated, deposited, spilled,
discharged, released, or disposed of on or under any real property currently or
previously owned or leased by FVFI or any of its subsidiaries.
3.9 Legality of Shares to be Issued. The shares of common stock of
FVFI to be issued by FVFI pursuant to this Agreement, when so issued and
delivered, will have been duly and validly authorized and issued by FVFI and
will be fully paid and nonassessable.
3.10 Accuracy of All Statements Made by FVFI. No representation or
warranty by FVFI in this Agreement, nor any statement, certificate, schedule, or
exhibit hereto furnished
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or to be furnished by FVFI pursuant to this Agreement, nor any document or
certificate delivered to IHI pursuant to this Agreement or in connection with
actions contemplated hereby, contains or shall contain any untrue statement of
material fact or omits to state or shall omit to state a material fact necessary
to make the statements contained therein not misleading.
4. Covenants of the Parties.
4.1 Corporate Records.
a. Simultaneous with the execution of this Agreement by IHI, if not
previously furnished, such entity shall deliver to FVFI copies of the articles
of incorporation, as amended, and the current bylaws of IHI, and copies of the
resolutions duly adopted by the board of directors of IHI approving this
Agreement and the transactions herein contemplated.
b. Simultaneous with the execution of this Agreement by FVFI, if not
previously furnished, such entity shall deliver to IHI copies of the FVFI
articles of incorporation, as amended, and the current bylaws of FVFI, and
copies of the resolutions duly adopted by the board of directors of FVFI
approving this Agreement and the transactions herein contemplated.
4.2 Access to Information.
a. FVFI and its authorized representatives shall have full access
during normal business hours to all properties, books, records, contracts, and
documents of IHI, and IHI shall furnish or cause to be furnished to FVFI and its
authorized representatives all information with respect to its affairs and
business as FVFI may reasonably request. FVFI shall hold, and shall cause its
representatives to hold confidential, all such information and documents, other
than information that (i) is in the public domain at the time of its disclosure
to FVFI; (ii) becomes part of the public domain after disclosure through no
fault of FVFI; (iii) is known to FVFI or any of its officers or directors prior
to disclosure; or (iv) is disclosed in accordance with the written consent of
IHI. In the event this Agreement is terminated prior to Closing, FVFI shall,
upon the written request of IHI, promptly return all copies of all documentation
and information provided by IHI hereunder.
b. IHI and its authorized representatives shall have full access
during normal business hours to all properties, books, records, contracts, and
documents of FVFI, and FVFI shall furnish or cause to be furnished to IHI and
its authorized representatives all information with respect to its affairs and
business IHI may reasonably request. IHI shall hold, and shall cause its
representatives to hold confidential, all such information and documents, other
than information that (i) is in the public domain at the time of its disclosure
to IHI; (ii) becomes part of the public domain after disclosure through no fault
of IHI; (iii) is known to IHI or any of
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its officers or directors prior to disclosure; or (iv) is disclosed in
accordance with the written consent of FVFI. In the event this Agreement is
terminated prior to Closing, IHI shall, upon the written request of FVFI,
promptly return all copies of all documentation and information provided by FVFI
hereunder.
4.3 Actions Prior to Closing. From and after the date of this
Agreement and until the Closing Date:
a. Neither FVFI nor IHI shall negotiate with any other person or
contemplate any inquiries or proposals relating to the possible disposition of
their capital stock, or their assets.
b. FVFI and IHI shall each carry on its business diligently and
substantially in the same manner as heretofore, and neither party shall make or
institute any unusual or novel methods of purchase, sale, management, accounting
or operation.
c. Neither FVFI nor IHI shall enter into any contract or commitment,
or engage in any transaction not in the usual and ordinary course of business
and consistent with its business practices.
d. Neither FVFI nor IHI shall amend its articles of incorporation or
bylaws or make any changes in authorized or issued capital stock, except as
provided in this Agreement.
e. FVFI and IHI shall each use its best efforts (without making any
commitments on behalf of the company) to preserve its business organization
intact.
f. Neither FVFI nor IHI shall do any act or omit to do any act, or
permit any act or omission to act, which will cause a material breach of any
material contract, commitment, or obligation of such party.
g. FVFI and IHI shall each duly comply with all applicable laws as
may be required for the valid and effective issuance or transfer of stock
contemplated by this Agreement.
h. Neither FVFI nor IHI shall sell or dispose of any property or
assets, except products sold in the ordinary course of business.
i. FVFI and IHI shall each promptly notify the other of any lawsuits,
claims, proceedings, or investigations that may be threatened, brought,
asserted, or commenced
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against it, its officers or directors involving in any way the business,
properties, or assets of such party.
4.4 Shareholders' Approval. FVFI shall promptly submit this
Agreement and the transactions contemplated hereby for the approval of its
stockholders by majority written consent or at a meeting of stockholders and,
subject to the fiduciary duties of the board of directors of FVFI under
applicable law, shall obtain stockholder approval and adoption of this Agreement
and the transactions contemplated hereby.
4.5 No Covenant as to Tax or Accounting Consequences. It is
expressly understood and agreed that neither FVFI nor its officers or agents has
made any warranty or agreement, expressed or implied, as to the tax or
accounting consequences of the transactions contemplated by this Agreement or
the tax or accounting consequences of any action pursuant to or growing out of
this Agreement.
4.6 Indemnification. IHI shall indemnify FVFI for any loss, cost,
expense, or other damage (including, without limitation, attorneys' fees and
expenses) suffered by FVFI resulting from, arising out of, or incurred with
respect to the falsity or the breach of any representation, warranty, or
covenant made by IHI herein, and any claims arising from the operations of IHI
prior to the Closing Date. FVFI shall indemnify and hold IHI harmless from and
against any loss, cost, expense, or other damage (including, without limitation,
attorneys' fees and expenses) resulting from, arising out of, or incurred with
respect to, or alleged to result from, arise out of or have been incurred with
respect to, the falsity or the breach of any representation, covenant, warranty,
or agreement made by FVFI herein, and any claims arising from the operations of
FVFI prior to the Closing Date. The indemnity agreement contained herein shall
remain operative and in full force and effect, regardless of any investigation
made by or on behalf of any party and shall survive the consummation of the
transactions contemplated by this Agreement.
4.7 Publicity. The parties agree that no publicity, release, or
other public announcement concerning this Agreement or the transactions
contemplated by this Agreement shall be issued by any party hereto without the
advance approval of both the form and substance of the same by the other parties
and their counsel, which approval, in the case of any publicity, release, or
other public announcement required by applicable law, shall not be unreasonably
withheld or delayed.
4.8 Expenses. Except as otherwise expressly provided herein, each
party to this Agreement shall bear its own respective expenses incurred in
connection with the negotiation and preparation of this Agreement, in the
consummation of the transactions contemplated hereby, and in connection with all
duties and obligations required to be performed
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by each of them under this Agreement.
4.9 Further Actions. Each of the parties hereto shall take all such
further action, and execute and deliver such further documents, as may be
necessary to carry out the transactions contemplated by this Agreement.
4.10 Finder's Fee. At the Closing IHI shall pay to Business
Development Corporation, a finder's fee of $100,000 in the form of a cashier's
check payable to such entity.
4.11 Leakage Agreement. At the Closing Business Development
Corporation shall execute and deliver a leakage agreement in the form attached
hereto as Exhibit "B" and incorporated herein.
4.12 Name Change. On or before the Closing Date FVFI shall obtain
shareholder approval to amend its articles of incorporation to change the name
of the corporation to "Information Xxxxxxx.xxx, Inc." or some other name
reasonably designated by IHI.
4.13 Stock Exchange. Following Closing new management of FVFI shall
use its best efforts to exchange shares of FVFI for all of the remaining
outstanding shares of IHI such that IHI shall become a wholly owned subsidiary
of FVFI and then to merge IHI into FVFI such that FVFI shall be the surviving
entity.
4.14 Legal Opinions. At Closing IHI shall deliver to FVFI an opinion
of counsel in form reasonably satisfactory to FVFI that the issuance of shares
to the Shareholders pursuant to this Agreement, and the shares of common stock
of FVFI proposed to be issued to the remaining shareholders of IHI following the
Closing, shall not violate federal or state securities laws, as applicable. At
Closing FVFI shall deliver to IHI an opinion of counsel in form reasonably
satisfactory to IHI that FVFI is duly organized, validly existing under the laws
of the State of Florida and that the outstanding shares of FVFI have been
legally issued, and are fully paid and non-assessable.
4.15 Compliance with New Bulletin Board Requirements. Following
Closing new management of FVFI shall use its best efforts to maintain the
quotation of the common stock of FVFI on the Bulleting Board.
5. Conditions Precedent to FVFI's Obligations. Each and every obligation
of FVFI to be performed on the Closing Date shall be subject to the satisfaction
prior thereto of the following conditions:
5.1 Truth of Representations and Warranties. The representations and
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warranties made by IHI in this Agreement or given on its behalf hereunder shall
be substantially accurate in all material respects on and as of the Closing Date
with the same effect as though such representations and warranties had been made
or given on and as of the Closing Date.
5.2 Performance of Obligations and Covenants. IHI shall have
performed and complied with all obligations and covenants required by this
Agreement to be performed or complied with by it prior to or at the Closing.
5.3 Officer's Certificate. FVFI shall have been furnished with a
certificate (dated as of the Closing Date and in form and substance reasonably
satisfactory to FVFI), executed by an executive officer of IHI, certifying to
the fulfillment of the conditions specified in subsections 5.1 and 5.2 hereof.
5.4 No Litigation or Proceedings. There shall be no litigation or
any proceeding by or before any governmental agency or instrumentality pending
or threatened against any party hereto that seeks to restrain or enjoin or
otherwise questions the legality or validity of the transactions contemplated by
this Agreement or which seeks substantial damages in respect thereof.
5.5 No Material Adverse Change. As of the Closing Date there shall
not have occurred any material adverse change, financially or otherwise, which
materially impairs the ability of IHI to conduct its business or the earning
power thereof on the same basis as in the past.
5.6 Shareholders' Execution of Subscription Agreement. As of the
Closing Date Shareholders owning not less than 51% of the outstanding common
stock of IHI shall have duly executed and delivered Subscription Agreements in
the form as set forth in Exhibit "A."
6. Conditions Precedent to Obligations of IHI. Each and every obligation
of IHI to be performed on the Closing Date shall be subject to the satisfaction
prior thereto of the following conditions:
6.1 Truth of Representations and Warranties. The representations and
warranties made by FVFI in this Agreement or given on its behalf hereunder shall
be substantially accurate in all material respects on and as of the Closing Date
with the same effect as though such representations and warranties had been made
or given on and as of the Closing Date.
6.2 Performance of Obligations and Covenants. FVFI shall have
performed and complied with all obligations and covenants required by this
Agreement to be performed or
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complied with by it prior to or at the Closing.
6.3 Officer's Certificate. IHI shall have been furnished with a
certificate (dated as of the Closing Date and in form and substance reasonably
satisfactory to IHI), executed by an executive officer of FVFI, certifying to
the fulfillment of the conditions specified in subsections 6.1 and 6.2 hereof.
6.4 No Litigation or Proceedings. There shall be no litigation or
any proceeding by or before any governmental agency or instrumentality pending
or threatened against any party hereto that seeks to restrain or enjoin or
otherwise questions the legality or validity of the transactions contemplated by
this Agreement or which seeks substantial damages in respect thereof.
6.5 No Material Adverse Change. As of the Closing Date there shall
not have occurred any material adverse change, financially or otherwise, which
materially impairs the ability of FVFI to conduct its business.
7. Change of Management. Upon and as a condition of Closing this
Agreement:
7.1 Prior to Closing FVFI will present to its shareholders for
approval the election of Xxxx X. Xxxxxxxxx, Xxxxxxxx Xxxxxxx, and Xxxxx X.
Xxxxxxxxx as directors of FVFI effective immediately following the Closing of
this Agreement. Prior to Closing IHI will furnish material information of Xxxx
X. Xxxxxxxxx, Xxxxxxxx Xxxxxxx, and Xxxxx X. Xxxxxxxxx as nominees to be elected
by the shareholders of FVFI. FVFI reserves the right to refuse to cause the
nomination of any or all such persons as directors of FVFI if, after review of
the foregoing information concerning said persons, it is the opinion of FVFI
that the election of such persons would not be in the best interests of FVFI.
7.2 IHI reserves the right to terminate this Agreement if nominees
selected by it are not elected or appointed as set forth above.
8. Closing.
8.1 Time and Place. The Closing of this transaction ("Closing")
shall take place at 00 Xxxx 000 Xxxxx, Xxxxx 000, Xxxx Xxxx Xxxx, Xxxx, at 11:00
am, on February 19, 1999, or at such other time and place as the parties hereto
shall agree upon. Such date is referred to in this Agreement as the "Closing
Date."
8.2 Documents To Be Delivered by IHI. At the Closing IHI shall
deliver to FVFI the following documents:
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a. Executed copies of Exhibit "A" executed by shareholders of IHI
owning not less than 51% of the outstanding common stock of IHI.
b. Stock certificates endorsed to FVFI representing the shares of
stock of IHI transferable to FVFI pursuant to subsection 1.1 hereof.
c. The certificate required pursuant to subsection 5.3 hereof.
d. The legal opinion set forth in subsection 4.14 hereof.
e. A cashier's check in the amount of $100,000 as required pursuant to
subsection 4.10 hereof.
f. A signed consent and/or minutes of IHI's directors approving this
Agreement and each matter to be approved under this Agreement.
g. Such other documents of transfer, certificates of authority, and
other documents as FVFI may reasonably request.
8.3 Documents To Be Delivered by FVFI. At the Closing FVFI shall
deliver to IHI the following documents:
a. Certificates for the number of shares of common stock of FVFI
as determined in subsection 1.2 hereof.
b. The certificate required pursuant to subsection 6.3 hereof.
c. The executed leakage agreement as set forth in subsection 4.11
hereof.
d. The legal opinion as set forth in subsection 4.14 hereof.
e. A signed consent and/or minutes of FVFI's directors and
shareholders approving this Agreement and each matter to be approved under this
Agreement.
f. Such other documents of transfer, certificates of authority, and
other documents as IHI may reasonably request.
9. Termination. This Agreement may be terminated by FVFI or IHI by notice
to the
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other if, (i) at any time prior to the Closing Date any event shall have
occurred or any state of facts shall exist that renders any of the conditions to
its or their obligations to consummate the transactions contemplated by this
Agreement incapable of fulfillment, or (ii) on February 26, 1999, if the Closing
shall not have occurred. Following termination of this Agreement no party shall
have liability to another party relating to such termination, other than any
liability resulting from the breach of this Agreement by a party prior to the
date of termination.
10. Miscellaneous.
10.1 Notices. All communications provided for herein shall be in
writing and shall be deemed to be given or made when served personally or when
deposited in the United States mail, certified return receipt requested,
addressed as follows, or at such other address as shall be designated by any
party hereto in written notice to the other party hereto delivered pursuant to
this subsection:
FVFI: 000 Xxxxxx Xxxxx
Xxxxx 0000
Xx. Xxxxxxxxxx, XX 00000
Attn: Van X. Xxxxxxx, President
With Copy to: Xxxxxx X. Xxxxx
Attorney at Law
00 Xxxx 000 Xxxxx
Xxxxx 000
Xxxx Xxxx Xxxx, XX 00000
IHI: #000-00000 Xxxxxxxxxxx Xxx
Xxxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxx X0X 0X0
Attn: Xxxx Xxxxxxxxx, Chairman
With Copy to: Xxxxx Xxxxxxxxx
XXXXXXXXX XXXXXXX & XXXXXXX
Xxx Xxxxx Xxxxxx, Xxxxx 0000
000 Xxxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
10.2 Default. Should any party to this Agreement default in any of
the covenants, conditions, or promises contained herein, the defaulting party
shall pay all costs and expenses, including a reasonable attorney's fee, which
may arise or accrue from enforcing this Agreement, or in pursuing any remedy
provided hereunder or by any statute.
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10.3 Assignment. This Agreement may not be assigned in whole or in
part by the parties hereto without the prior written consent of the other party
or parties, which consent shall not be unreasonably withheld.
10.4 Successors and Assigns. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto, their heirs, executors,
administrators, successors and assigns.
10.5 Partial Invalidity. If any term, covenant, condition, or
provision of this Agreement or the application thereof to any person or
circumstance shall to any extent be invalid or unenforceable, the remainder of
this Agreement or application of such term or provision to persons or
circumstances other than those as to which it is held to be invalid or
unenforceable shall not be affected thereby and each term, covenant, condition,
or provision of this Agreement shall be valid and shall be enforceable to the
fullest extent permitted by law.
10.6 Entire Agreement. This Agreement constitutes the entire
understanding between the parties hereto with respect to the subject matter
hereof and supersedes all negotiations, representations, prior discussions,
letters of intent, and preliminary agreements between the parties hereto
relating to the subject matter of this Agreement.
10.7 Interpretation of Agreement. This Agreement shall be interpreted
and construed as if equally drafted by all parties hereto.
10.8 Survival of Covenants, Etc. All covenants, representations, and
warranties made herein to any party, or in any statement or document delivered
to any party hereto, shall survive the making of this Agreement and shall remain
in full force and effect until the obligations of such party hereunder have been
fully satisfied.
10.9 Further Action. The parties hereto agree to execute and deliver
such additional documents and to take such other and further action as may be
required to carry out fully the transactions contemplated herein.
10.10 Amendment. This Agreement or any provision hereof may not be
changed, waived, terminated, or discharged except by means of a written
supplemental instrument signed by the party or parties against whom enforcement
of the change, waiver, termination, or discharge is sought.
10.11 Full Knowledge. By their signatures, the parties acknowledge
that they have carefully read and fully understand the terms and conditions of
this Agreement, that each
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party has had the benefit of counsel, or has been advised to obtain counsel, and
that each party has freely agreed to be bound by the terms and conditions of
this Agreement.
10.12 Headings. The descriptive headings of the various sections or
parts of this Agreement are for convenience only and shall not affect the
meaning or construction of any of the provisions hereof.
10.13 Counterparts. This Agreement may be executed in two or more
partially or fully executed counterparts, each of which shall be deemed an
original and shall bind the signatory, but all of which together shall
constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto executed the foregoing Agreement and
Plan of Reorganization as of the day and year first above written.
FVFI: Florida Venture Fund, Inc.
By
---------------------------
Van X. Xxxxxxx, President
IHI: Information Highway, Inc.
By
---------------------------
Xxxx X. Xxxxxxxxx, President
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