[EXHIBIT 2.1]
AGREEMENT AND PLAN OF MERGER
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THIS AGREEMENT AND PLAN OF MERGER dated as of February 8,
2005 (this "Agreement"), is entered into by and among IPI
Fundraising, Inc., a Delaware corporation ("Acquiror"), BF
Acquisition Group III, Inc., a Florida corporation ("BF
Acquisition Group"); XxxxxxxxxxxXxxxxx.xxx, Inc., a Delaware
corporation and a majority-owned subsidiary of BF
Acquisition Group ("FundraisingDirect"), Imprints Plus,
Inc., a Delaware corporation ("Imprints Plus"), those
stockholders of Imprints Plus listed on Exhibit A as
Imprints Plus Key Stockholders ("Imprints Plus Key
Stockholders"), those stockholders of BF Acquisition Group
listed on Exhibit A as BF Acquisition Group Key Stockholders
(the "BF Acquisition Group Key Stockholders"), and those
stockholders of FundraisingDirect listed on Exhibit A as
FundraisingDirect Key Stockholders (the "FundraisingDirect
Key Stockholders"). BF Acquisition Group, FundraisingDirect
and Imprints Plus are collectively referred to herein as the
"Disappearing Companies" or individually, a "Disappearing
Company." Imprints Plus Key Stockholders, BF Acquisition
Group Key Stockholders and FundraisingDirect Key
Stockholders are collectively referred to herein as
"Stockholders."
RECITALS
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A. The Boards of Directors of Acquiror, BF Acquisition Group,
FundraisingDirect and Imprints Plus deem it advisable and in
the best interests of each corporation and the respective
stockholders that Acquiror, BF Acquisition Group,
FundraisingDirect and Imprints Plus combine in order to
advance the long-term business interests of each of them;
B. The combination of Acquiror, BF Acquisition Group,
FundraisingDirect and Imprints Plus shall be effected
pursuant to the plan of merger ("Plan of Merger") attached
hereto as Exhibit B and by the terms of this Agreement
through a transaction in which each of BF Acquisition Group,
FundraisingDirect and Imprints Plus will merge with and into
Acquiror and the stockholders of each of BF Acquisition
Group, FundraisingDirect and Imprints Plus will become
stockholders of Acquiror (the "Merger" and, together with
the other transactions contemplated by this Agreement, the
"Contemplated Transactions");
C. For Federal income tax purposes, it is intended that the
Merger shall qualify as a tax-free reorganization within the
meaning of Section 368 of the Internal Revenue Code of 1986,
as amended (the "Code");
D. As a condition and inducement to Acquiror's willingness
to enter into this Agreement, significant shareholders of
Imprints Plus, BF Acquisition Group and FundraisingDirect,
collectively listed on Exhibit A as Significant
Stockholders, have, concurrently with the execution of this
Agreement, executed and delivered Sales Restriction
Agreements (the "Sales Restriction Agreements"), in the
forms attached hereto as Exhibits C-1, C-2 and C-3, which
agreements shall only become effective at the Effective Time
(as defined in Section 1.1 below);
NOW, THEREFORE, in consideration of the foregoing and the
respective representations, warranties, covenants and
agreements set forth below, the parties agree as follows:
ARTICLE I
THE MERGER
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1.1 Effective Time of the Merger. Subject to the
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provisions of this Agreement, a certificate of merger
(the "Certificate of Merger") in such mutually
acceptable form as is required by the relevant
provisions of the Delaware General Corporation Law
("Delaware Law") and Florida Business Corporation Act
("Florida Law") shall be duly executed and delivered
by the Surviving Corporation (as defined below) hereto
and thereafter delivered to the Secretary of State of the
States of Delaware and Florida for filing on the Closing
Date (as defined in Section 1.2). The Merger shall
become effective upon the due and valid filing of the
Certificate of Merger with the Secretary of State of
the State of Delaware or at such time thereafter as
is provided in the Certificate of Merger (the
"Effective Time").
1.2 Closing. The closing of the Merger (the
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"Closing") will take place at the Acquiror's offices
at 0 Xxxx Xxxx Xx., Xxxxxx, Xxxxxxxx 00000, at 10:00
a.m., local time, on the date that is twenty-one (21)
days after the effective date of the Registration
Statement (as defined in Section 3.1.11), or at such
other time and place as the parties may agree (the
"Closing Date").
1.3 Effects of the Merger.
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(a) At the Effective Time (i) the separate
existence of each of BF Acquisition Group,
FundraisingDirect and Imprints Plus shall cease and
each of these corporations shall be merged with and
into the Acquiror (BF Acquisition Group,
FundraisingDirect, Imprints Plus and the Acquiror are
sometimes referred to herein as the "Constituent
Corporations" and the Acquiror following consummation
of the Merger is sometimes referred to herein as the
"Surviving Corporation"), (ii) the Certificate of
Incorporation of the Acquiror shall be the
Certificate of Incorporation of the Surviving
Corporation, and (iii) the Bylaws of the Acquiror as
in effect immediately prior to the Effective Time
shall be the Bylaws of the Surviving Corporation.
(b) At the Effective Time, the effect of the
Merger shall be as provided in the applicable
provisions of Delaware Law and Florida Law. Without
limiting the generality of the foregoing, at and
after the Effective Time, the Surviving Corporation
shall possess all the rights, privileges, powers and
franchises of a public as well as of a private
nature, and be subject to all the restrictions,
disabilities and duties of each of the Constituent
Corporations.
1.4 Directors and Officers. At the Effective Time,
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the directors and officers of the Surviving
Corporation shall consist of the following persons,
each to hold office in accordance with the
Certificate of Incorporation and Bylaws of the
Surviving Corporation, and in each case until their
respective successors are duly elected or appointed.
Xxxxxx XxXxxxxxx Director, President, Chief
Executive Officer, Secretary
Xxx Xxxxxx, Xx. Interim Chief Financial
Officer
Xxxxx XxXxxxxxx V.P. Human Resources and
Administration
Xxxxxx X. Xxxxxx National Sales Director
Xxxxxxx Xxxxxxxx Operations Manager
Xxxxxxx X. Xxxxxxxx Director
Xxxxxx X. Xxxxxxx Director
ARTICLE II
CONVERSION OF SECURITIES
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2.1 Conversion of Capital Stock. At the Effective
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Time, by virtue of the Merger and without any action
on the part of the holder of any shares of the capital
stock of any of the Constituent Corporations:
(a) Capital Stock of Acquiror. Each issued and
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outstanding share of the capital stock of Acquiror
immediately prior to the Effective time shall be
canceled and retired and shall cease to exist.
(b) Cancellation of BF Acquisition Group-Owned
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FundraisingDirect Common Stock. Any shares of
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FundraisingDirect common stock that are owned by BF
Acquisition Group shall be canceled and retired and
shall cease to exist and no stock of Acquiror or
other consideration shall be delivered in exchange
therefore.
(c) Conversion of Stock. Subject to Sections 2.2
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(as applicable) and 2.3 (other than any Dissenting
Shares as defined in and to the extent provided in
Section 2.2), each issued and outstanding share of BF
Acquisition Group series A preferred stock, BF
Acquisition Group common stock, FundraisingDirect
common stock (other than as provided in Section
2.1(b)), and Imprints Plus common stock shall be
converted into the right to receive the Merger
Consideration (as defined in Section 2.1(d)), and BF
Acquisition Group, FundraisingDirect and Imprints
Plus shall automatically disappear into the Acquiror,
and each holder of a certificate representing any
Disappearing Company's shares shall cease to have any
rights with respect thereto, except the right to
receive the Merger Consideration in accordance with
Section 2.3.
(d) Merger Consideration. The aggregate maximum
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consideration payable by Acquiror in connection with
the Merger (the "Merger Consideration") will be a
maximum of ten million sixty four thousand six hundred
twenty eight (10,064,628) shares of Acquiror's common
stock, par value $.001 ("Acquiror Common Stock") and
3,000,000 shares of the Surviving Corporation's series
A preferred stock, par value $.50 ("Acquiror Preferred
Stock"). Acquiror shall deliver the Merger
Consideration at the Closing, upon surrender of the
Certificates (as defined in Section 2.3): (i) holders
of BF Acquisition Group series A preferred stock
shall be entitled to receive in exchange for each
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share of BF Acquisition Group series A preferred
stock one (1) share of the Acquiror Preferred Stock;
(ii) holders of BF Acquisition Group common stock
shall be entitled to receive in exchange for each
share of BF Acquisition Group common stock one (1)
share of the Acquiror Common Stock; (iii) holders of
FundraisingDirect common stock shall be entitled to
receive in exchange for each share of
FundraisingDirect common stock one hundred (100)
shares of the Acquiror Common Stock, except that any
and all shares of FundraisingDirect common stock
owned by BF Acquisition Group shall be canceled and
retired and shall cease to exist and no IPI
Fundraising common stock or other consideration shall
be delivered in exchange therefore; and (iv) holders
of Imprints Plus common stock shall be entitled to
receive in exchange for each share of Imprints Plus
common stock one (1) share of the Acquiror Common
Stock.
(e) Imprints Plus Stock Options. At the Effective
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Time, all then outstanding options, whether vested or
unvested, ("Imprints Plus Options") to purchase
Imprints Plus common stock issued under Imprints
Plus' 2004 Stock Option Plan (the "Imprints Plus
Option Plan") or otherwise that by their terms
survive the Closing, will be assumed by Acquiror in
accordance with Section 6.2. All of Imprints Plus
Options issued and outstanding as of February 8, 2005
are listed on Schedule 2.1(e) delivered by
Imprints Plus on or before the date of this
Agreement. Imprints Plus shall deliver an updated
Schedule 2.1(e) of Imprints Plus Options to Acquiror
on the Closing Date.
2.2 Dissenting Shares.
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(a) Notwithstanding any provision of this
Agreement to the contrary, any shares of any
Disappearing Company's common stock held by a holder
who has exercised such holder's dissenter's rights in
accordance with Section 262 of Delaware Law or
Sections 1301 to 1333 of Florida Law, as the case may
be, and who, as of the Effective Time, has not
effectively withdrawn or lost such dissenter's rights
("Dissenting Shares"), shall not be converted into or
represent a right to receive the Merger Consideration
pursuant to Section 2.1, but the holder of the
Dissenting Shares shall only be entitled to such
rights as are granted by Section 262 of Delaware Law
and Sections 1301 to 1333 of Florida Law, as
applicable.
(b) Notwithstanding the provisions of Section
2.2(a), if any holder of shares of any Disappearing
Company's common stock who demands his dissenter's
rights with respect to such shares under Section
2.2(a) shall effectively withdraw or lose (through
failure to perfect or otherwise) his rights to
receive payment for the fair market value of such
shares under Delaware Law or Florida Law, then, as of
the later of the Effective Time or the occurrence of
such event, such holder's shares shall automatically
be converted into and represent only the right to
receive Merger Consideration and payment for
fractional shares as provided in Sections 2.1(c) and
2.5, without interest, upon surrender of the
certificate or certificates representing such shares.
(c) Each Disappearing Company shall give Acquiror
(i) prompt notice of any written demands for payment
with respect to any shares of capital stock of such
Disappearing Company pursuant to Section 262 of
Delaware Law or Sections 1301 to 1333 of Florida Law,
as applicable, and any withdrawals of such demands,
and (ii) the opportunity to participate in all
negotiations and proceedings with respect to demands
for dissenter's rights under Delaware Law or Florida
Law. No Disappearing Company shall, except with the
prior written consent of Acquiror, voluntarily make
any payment with respect to any demands for
dissenter's rights with respect to such Disappearing
Company's common stock or offer to settle or settle
any such demands.
2.3 Exchange of Certificates.
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(a) From and after the Effective Time, each holder
of an outstanding certificate or certificates
("Certificates") which represented BF Acquisition
Group common stock or series A preferred stock,
FundraisingDirect common stock or Imprints Plus
common stock immediately prior to the Effective Time
shall have the right to surrender each Certificate to
the Acquiror (or at Acquiror's option, another
exchange agent to be appointed by Acquiror), and
receive in exchange for all Certificates held by such
holder a certificate representing the number of whole
shares of Acquiror Common Stock or Acquiror Preferred
Stock into which the shares of BF Acquisition Group
common stock or series A preferred stock,
FundraisingDirect common stock or Imprints Plus
common stock evidenced by the Certificates so
surrendered shall have been converted pursuant to the
provisions of Article II of this Agreement. The
surrender of Certificates shall be accompanied by
duly completed and executed Letters of Transmittal in
such form as may be reasonably specified by Acquiror.
Until surrendered, each outstanding Certificate which
prior to the
Effective Time represented shares of BF Acquisition
Group common stock or series A preferred stock,
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FundraisingDirect common stock or Imprints Plus
common stock shall be deemed for all corporate
purposes to evidence ownership of the number of whole
shares of Acquiror Common Stock or Acquiror Preferred
Stock into which the shares of BF Acquisition Group
common stock or series A preferred stock,
FundraisingDirect common stock or Imprints Plus
common stock have been converted, subject to
applicable dissenter's rights under Delaware Law,
Florida Law and Section 2.2, have no other rights.
Subject to dissenter's rights under Delaware Law,
Florida Law and Section 2.2, from and after the
Effective Time, the holders of shares of BF
Acquisition Group common stock or series A preferred
stock, FundraisingDirect common stock or Imprints
Plus common stock shall cease to have any rights in
respect of such shares and their rights shall be
solely in respect of the Acquiror Common Stock or
Acquiror Preferred Stock into which such shares have
been converted. From and after the Effective Time,
there shall be no further registration of transfers
on the records of BF Acquisition Group common stock
or series A preferred stock, FundraisingDirect common
stock or Imprints Plus common stock outstanding
immediately prior to the Effective Time.
(b) If any shares of Acquiror Common Stock are to
be issued in the name of a person other than the
person in whose name the Certificate(s) surrendered
in exchange therefor is registered, it shall be a
condition to the issuance of such shares that (i) the
Certificate(s) so surrendered shall be transferable,
and shall be properly assigned, endorsed or
accompanied by appropriate stock powers, (ii) such
transfer shall otherwise be proper and (iii) the
person requesting such transfer shall pay Acquiror,
or its exchange agent, any transfer or other taxes
payable by reason of the foregoing or establish to
the satisfaction of Acquiror that such taxes have
been paid or are not required to be paid.
Notwithstanding the foregoing, neither Acquiror nor
any Disappearing Company shall be liable to a holder
of shares of any Disappearing Company's common stock
for shares of Acquiror Common Stock issuable to such
holder pursuant to the provisions of Article II of
this Agreement that are delivered to a public
official pursuant to applicable abandoned property,
escheat or similar laws.
(c) In the event any Certificate shall have been
lost, stolen or destroyed, upon the making of an
affidavit of that fact by the person claiming such
Certificate to be lost, stolen or destroyed, the
Acquiror shall issue in exchange for such lost,
stolen or destroyed Certificate the shares of
Acquiror Common Stock issuable in exchange therefor
pursuant to the provisions of Article II of this
Agreement. The Board of Directors of Acquiror may in
its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost,
stolen or destroyed Certificate to provide to
Acquiror an indemnity agreement against any claim
that may be made against Acquiror with respect to the
Certificate alleged to have been lost, stolen or
destroyed.
(d) Promptly after the Effective Time, Acquiror
shall make available to the transfer agent for
exchange in accordance with this Section 2.3, through
such reasonable procedures as Acquiror may adopt, the
shares of Acquiror Common Stock issuable pursuant to
Section 2.5
2.4 Distributions with Respect to Unexchanged
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Shares. No dividends or other distributions declared
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or made after the Effective Time with respect to
Acquiror Common Stock with a record date after the
Effective Time shall be paid to the holder of any
unsurrendered Certificate with respect to the shares
of Acquiror Common Stock represented thereby until
the holder of record of such Certificate shall
surrender such Certificate. Subject to the effect of
applicable laws, following surrender of any such
Certificate, there shall be paid to the record
holder of the certificates representing shares of
Acquiror Common Stock issued in exchange therefore,
without interest, (i) at the time of such surrender,
the amount of dividends or other distributions with
record date after the Effective Time previously
paid with respect to such shares of Acquiror Common
Stock, and (ii) at the appropriate payment date, the
amount of dividends or other distributions with a
record date after the Effective Time but prior to
surrender and a payment date subsequent to surrender
payable with respect to such shares of Acquiror
Common Stock.
2.5 No Fractional Shares. No certificate or scrip
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representing fractional shares of Acquiror Common
Stock shall be issued upon the surrender for exchange
of Certificates, and such fractional share interests
will not entitle the owner thereof to vote or to any
rights of a stockholder of Acquiror. Notwithstanding
any other provision of this Agreement, each holder of
shares of a Disappearing Company's common stock
exchanged pursuant to the Merger who would otherwise
have been entitled to receive a fraction of a share
of Acquiror Common Stock (after taking into account
all Certificates delivered by such holder) shall
receive, in lieu thereof, a whole share resulting
from such fractional share being rounded up to the
nearest whole share.
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2.6 Tax and Accounting Consequences.
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It is intended by the parties hereto that the
Merger shall constitute a tax-free transaction
within the meaning of Section 368(a) of the Code.
2.7 Closing Obligations.
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At the Closing:
(a) Each Disappearing Company will deliver to
Acquiror:
(i) solely with respect to Imprints Plus Key
Stockholders, BF Acquisition Group Key
Stockholders and FundraisingDirect Key
Stockholders, the Sales Restriction Agreements
in the form of Exhibits C-1, C-2 and C-3,
executed by each such Stockholder;
(ii) a copy of the resolutions of each
Disappearing Company's stockholders and Board
of Directors certified by its Secretary,
authorizing and approving the execution
delivery and performance of this Agreement and
the Contemplated Transactions and the acts of
the officers and employees of each
Disappearing Company in carrying out the terms
and provisions hereof; and
(iii) such other documents as Acquiror may
reasonably request for the purpose of (A)
enabling its counsel to provide the opinion
referred to in Section 2.7(b), (B) evidencing
the accuracy of any representation or warranty
of the Disappearing Companies, (C) evidencing
the performance by the Disappearing Companies
of, or the compliance by the Disappearing
Companies with, any covenant or obligation
required to be performed or complied with by
the Disappearing Companies, (D) evidencing the
satisfaction of any condition referred to in
Article VIII, or (E) otherwise facilitating
the consummation of any of the Contemplated
Transactions.
(b) Acquiror will deliver to Imprints Plus
(except as indicated otherwise):
(i) a certificate executed by Acquiror to
the effect that, except as otherwise stated in
such certificate, each of Acquiror's
representations and warranties in this
Agreement was accurate in all respects as of
the date of this Agreement and is accurate in
all respects as of the Effective Time as if
made on the Effective Time;
(ii) an opinion of Xxxxxxxx Xxxx Lodge &
Hutz LLP, dated the Closing Date, in the form
of Exhibit D; and
(iii) such other documents as each
Disappearing Company may reasonably request for
the purpose of (A) evidencing the accuracy of
any representation or warranty of Acquiror,
(B) evidencing the performance by Acquiror of,
or the compliance by Acquiror with, any covenant
or obligation required to be performed or
complied with by Acquiror, (C) evidencing the
satisfaction of any condition referred to in
Article IX, or (D) otherwise facilitating the
consummation of any of the Contemplated
Transactions.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE
DISAPPEARING COMPANIES AND THE STOCKHOLDERS
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3.1.0 Imprints Plus represents and warrants to
Acquiror the following.
3.1.1. Capital Structure. The capitalization of
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Imprints Plus consists of 25,000,000 shares of common
stock, $0.0001 par value, of which 5,096,628 shares
are issued and outstanding. All of the issued and
outstanding capital stock of Imprints Plus has been
duly authorized and validly issued, and is fully paid
and nonassessable, free of preemptive rights, and not
subject to any restriction on transfer under the
Certificate of Incorporation of Imprints Plus or any
agreement to which Imprints Plus is a party or of
which Imprints Plus has been given notice. Other than
as described on Schedule 2.1(e), there are no
outstanding subscriptions, options, warrants,
convertible securities, rights, agreements,
understandings, or commitments of any kind relating
to the subscription, issuance, repurchase, or
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purchase of capital stock or other securities of
Imprints Plus, or obligating Imprints Plus to
transfer any additional shares of its capital stock
of any class or any other securities.
3.1.2 Organization and Good Standing. Imprints
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Plus is duly qualified as a Delaware corporation and
is in good standing in any jurisdiction in which the
conduct of its business or the ownership of its
assets requires such qualification. A true and
complete copy of the Certificate of Incorporation of
Imprints Plus, each as amended to this date, has been
delivered or made available to Acquiror. The minute
books of Imprints Plus are current as required by
law, contain the minutes of all meetings of the
incorporators, Board of Directors, committees of the
Board of Directors, and shareholders from the date of
incorporation to this date, and adequately reflect
all material actions taken by the incorporators,
Board of Directors, committees of the Board of
Directors, and shareholders of Imprints Plus.
Imprints Plus has no subsidiaries.
3.1.3 Authorization; Validity. The execution,
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delivery, and performance of this Agreement by
Imprints Plus has been duly and validly authorized by
all requisite corporate action. This Agreement has
been duly and validly executed and delivered by
Imprints Plus, and is the legal, valid, and binding
obligation of Imprints Plus, enforceable in
accordance with its terms, except as limited by
bankruptcy, insolvency, moratorium, reorganization,
and other laws of general application affecting the
enforcement of creditors' rights and by the
availability of equitable remedies.
3.1.4 Consents. Other than is set forth herein, no
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approval, consent, waiver, or authorization of or filing
or registration with any governmental authority or third
party is required for the execution, delivery, or
performance by Imprints Plus of the transactions
contemplated by this Agreement.
3.1.5 Litigation. Other than is set forth herein, no
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litigation is pending or to the knowledge of Imprints
Plus, threatened, to which Imprints Plus is or may
become a party.
3.1.6 Violations. The execution, delivery, or
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performance of this Agreement does not and will not
(i) with or without the giving of notice or the passage
of time, or both, constitute a default under, result in
breach of, result in the termination of, result in the
acceleration of performance of, require any consent,
approval, or waiver, or result in the imposition of
any lien or other encumbrance on any property or
assets of Imprints Plus under, any agreement, lease,
or other instrument to which Imprints Plus is a party
or by which any of the property or assets of Imprints
Plus are bound; (ii) violate any permit, license, or
approval required by Imprints Plus to own its assets
and operate its business; (iii) violate any law,
statute, or regulation or any judgment, order,
ruling, or other decision of any governmental
authority, court, or arbitrator; or (iv) violate any
provision of Imprints Plus's Articles of
Incorporation or Bylaws.
3.1.7 Broker and Finder Fees. Imprints Plus has
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not incurred any obligation or liability, contingent or
otherwise, for brokerage or finders' fees or agents
commissions or other similar payment in connection with
this Agreement.
3.1.8 Financial statements. Audited financial
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statements for the nine months ended September 30, 2004
and year ended December 31, 2003 and unaudited financial
statements for the three months ended December 31,
2004 and 2003 have been submitted to the Acquiror.
These statements were prepared according to generally
accepted accounting principals. They fairly
represent the financial position of Imprints Plus as
of the respective dates and the results of its
operations for the periods indicated. Since the date
of the last balance sheet, there has not been any
material change in the financial condition or
operations of Imprints Plus. Imprints Plus did not,
as of the date of the last balance sheet, have any
debt, liability or obligations of any nature, whether
accrued, absolute, contingent or otherwise, and
whether due or to become due that is not reflected in
Imprints Plus' balance sheet.
3.1.9 Tax Filings. All tax returns required to
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be filed with respect to Imprints Plus and its
affiliates, or any of their income, properties or
operations are in all material respects true,
complete and correct and have been duly filed in a
timely manner. Further, all taxes attributable to
Acquiror and its affiliates that are or were due and
payable (without regard to whether such taxes have
been assessed) have been paid.
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3.1.10 Survival of Representations and Warranties.
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Each of the representations and warranties in this
Article III shall survive the Closing until the
expiration of all applicable statute of limitations
periods.
3.1.11 Registration Statement; Prospectus. The
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information supplied by Imprints Plus and/or its Key
Stockholders for inclusion in the S-4 registration
statement to be filed with the SEC by Acquiror in
connection with the issuance of Acquiror Common Stock
and Acquiror Preferred Stock in or as a result of the
Merger (as supplemented or amended prior to the
Effective Time, the "Registration Statement") shall
not at the time the Registration Statement is filed
with the SEC and at the time it becomes effective
under the Securities Act contain any untrue statement
of a material factor 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.
The information supplied by Imprints Plus and/or its
Key Stockholders for inclusion in the proxy statement
or information statement of Imprints Plus and prospectus
of Acquiror in connection with the Merger (as
supplemented or amended prior to the Effective Time,
the "Prospectus") shall not, on the date the
Prospectus is first mailed to Imprints Plus'
Stockholders or at the Effective Time contain any
untrue statement of a material fact. The proxy
statement or information statement relating to this
agreement and the Contemplated Transactions (as
supplemented or amended prior to the Effective Time)
will comply as to form in all material respects with
the provisions of all applicable federal and state
laws. If, at any time prior to the Effective Time,
any event relating to Imprints Plus or any of its
affiliates, officers, directors or Stockholders
should be discovered by Imprints Plus which is
required to be set forth in an amendment to the
Registration Statement or a supplement to the
Prospectus, Imprints Plus shall promptly inform
Acquiror. Notwithstanding the foregoing, Imprints
Plus makes no representation or warranty with respect
to any information supplied by BF Acquisition Group,
FundraisingDirect or Acquiror, or any of their
respective Stockholders, that is contained in any of
the foregoing documents.
3.1.12 Certain Proceedings.
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There is no pending proceeding that has been
commenced against Imprints Plus and that challenges,
or may have the effect of preventing, delaying, making
illegal, or otherwise interfering with, any of the
Contemplated Transactions. To Imprints Plus'
knowledge, no such proceeding has been threatened.
3.1.13 Disclosure. The representations and
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warranties of Imprints Plus contained in this Article
III do not contain any untrue statement of a material
fact and do not omit to state any material fact
necessary to make such representations and
warranties, in light of the circumstances under which
they were made, not misleading.
3.2.0 FundraisingDirect represents and warrants to
Acquiror the following.
3.2.1. Capital Structure. The capitalization of
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FundraisingDirect consists of 20,000,000 shares of
common stock, $0.01 par value, of which 39,930
shares are issued and outstanding. All of the issued
and outstanding capital stock of FundraisingDirect
has been duly authorized and validly issued, and is
fully paid and nonassessable, free of preemptive
rights, and not subject to any restriction on
transfer under the Certificate of Incorporation of
FundraisingDirect or any agreement to which
FundraisingDirect is a party or of which
FundraisingDirect has been given notice. There are no
outstanding subscriptions, options, warrants,
convertible securities, rights, agreements,
understandings, or commitments of any kind relating
to the subscription, issuance, repurchase, or
purchase of capital stock or other securities of
FundraisingDirect, or obligating FundraisingDirect to
transfer any additional shares of its capital stock
of any class or any other securities.
3.2.2 Organization and Good Standing.
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FundraisingDirect is duly qualified as a Delaware
corporation and is in good standing in any jurisdiction
in which the conduct of its business or the ownership
of its assets requires such qualification. A true and
complete copy of the Certificate of Incorporation of
FundraisingDirect, each as amended to this date, has
been delivered or made available to Acquiror. The
minute books of FundraisingDirect are current as
required by law, contain the minutes of all meetings
of the incorporators, Board of Directors, committees
of the Board of Directors, and shareholders from the
date of incorporation to this date, and adequately
reflect all material actions taken by the
incorporators, Board of Directors, committees of the
Board of Directors, and shareholders of
FundraisingDirect. FundraisingDirect has no
subsidiaries.
7
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3.2.3 Authorization; Validity. The execution,
-----------------------
delivery, and performance of this Agreement by
FundraisingDirect has been duly and validly
authorized by all requisite corporate action. This
Agreement has been duly and validly executed and
delivered by FundraisingDirect, and is the legal,
valid, and binding obligation of FundraisingDirect,
enforceable in accordance with its terms, except as
limited by bankruptcy, insolvency, moratorium,
reorganization, and other laws of general application
affecting the enforcement of creditors' rights and by
the availability of equitable remedies.
3.2.4 Consents. Other than is set forth herein, no
--------
approval, consent, waiver, or authorization of or
filing or registration with any governmental
authority or third party is required for the
execution, delivery, or performance by
FundraisingDirect of the transactions contemplated by
this Agreement.
3.2.5 Litigation. Other than is set forth herein,
----------
no litigation is pending or to the knowledge of
FundraisingDirect, threatened, to which
FundraisingDirect is or may become a party.
3.2.6 Violations. The execution, delivery, or
----------
performance of this Agreement does not and will not
(i) with or without the giving of notice or the
passage of time, or both, constitute a default under,
result in breach of, result in the termination of,
result in the acceleration of performance of, require
any consent, approval, or waiver, or result in the
imposition of any lien or other encumbrance on any
property or assets of FundraisingDirect under, any
agreement, lease, or other instrument to which
FundraisingDirect is a party or by which any of the
property or assets of FundraisingDirect are bound;
(ii) violate any permit, license, or approval
required by FundraisingDirect to own its assets and
operate its business; (iii) violate any law, statute,
or regulation or any judgment, order, ruling, or other
decision of any governmental authority, court, or
arbitrator; or (iv) violate any provision of
FundraisingDirect's Certificate of Incorporation or
Bylaws.
3.2.7 Broker and Finder Fees. FundraisingDirect
----------------------
has not incurred any obligation or liability,
contingent or otherwise, for brokerage or finders'
fees or agents' commissions or other similar payment
in connection with this Agreement.
3.2.8 Financial statements. Audited consolidated
--------------------
financial statements for the nine months ended
September 30, 2004 and the year ended December 31,
2003 and unaudited consolidated financial statements
for the three months ended December 31, 2004 and 2003
have been submitted to the Acquiror. These statements
were prepared according to generally accepted
accounting principals. They fairly represent the
financial position of FundraisingDirect as of the
respective dates and the results of its operations
for the periods indicated. Since the date of the last
balance sheet, there has not been any material change
in the financial condition or operations of
FundraisingDirect. FundraisingDirect did not, as of
the date of the last balance sheet, have any debt,
liability or obligations of any nature, whether
accrued, absolute, contingent or otherwise, and
whether due or to become due that is not reflected in
FundraisingDirect's balance sheet.
3.2.9 Tax Filings. All tax returns required to
-----------
be filed with respect to FundraisingDirect and its
affiliates, or any of their income, properties or
operations are in all material respects true, complete
and correct and have been duly filed in a timely manner.
Further, all taxes attributable to Acquiror and its
affiliates that are or were due and payable (without
regard to whether such taxes have been assessed) have
been paid.
3.2.10 Survival of Representations and Warranties.
------------------------------------------
Each of the representations and warranties in this Article
III shall survive the Closing until the expiration of
all applicable statute of limitations periods.
3.2.11 Registration Statement; Prospectus. The
----------------------------------
information supplied by FundraisingDirect and/or its
Stockholders for inclusion in the Registration Statement
shall not at the time the Registration Statement 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 in order
to make the statements therein, in light of the
circumstances under which they are made, not
misleading. The information supplied by
FundraisingDirect and/or its Stockholders for
inclusion in the proxy statement or information
statement of FundraisingDirect and prospectus of
Acquiror in connection with the Merger (as
supplemented or amended prior to the Effective Time,
the "Prospectus") shall not, on the date the
Prospectus is first mailed to FundraisingDirect's
Stockholders or at the Effective Time contain any
untrue statement of a material fact. The proxy
8
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statement or information statement relating to this
agreement and the Contemplated Transactions (as
supplemented or amended prior to the Effective Time)
will comply as to form in all material respects with
the provisions of all applicable federal and state
laws. If, at any time prior to the Effective Time,
any event relating to FundraisingDirect or any of its
affiliates, officers, directors or Stockholders
should be discovered by FundraisingDirect which is
required to be set forth in an amendment to the
Registration Statement or a supplement to the
Prospectus, FundraisingDirect shall promptly inform
Acquiror. Notwithstanding the foregoing,
FundraisingDirect makes no representation or warranty
with respect to any information supplied by BF
Acquisition Group, Imprints Plus or Acquiror, or any
of their respective Stockholders, that is contained
in any of the foregoing documents.
3.2.12 Certain Proceedings.
-------------------
There is no pending proceeding that has been
commenced against FundraisingDirect and that
challenges, or may have the effect of preventing,
delaying, making illegal, or otherwise interfering
with, any of the Contemplated Transactions. To
FundraisingDirect's knowledge, no such proceeding
has been threatened.
3.2.13 Disclosure. The representations and
----------
warranties of FundraisingDirect contained in this
Article III do not contain any untrue statement of a
material fact and do not omit to state any material
fact necessary to make such representations and
warranties, in light of the circumstances under which
they were made, not misleading.
3.3.0 BF Acquisition Group represents and
warrants to Acquiror the following.
3.3.1. Capital Structure. The capitalization of BF
-----------------
Acquisition Group consists of (i) 50,000,000 shares
of common stock, $0.001 par value, of which 975,000
shares are issued and outstanding; and (ii) 5,000,000
shares of preferred stock. The board of directors is
authorized to provide for the issuance of such
preferred stock in classes and series and, by filing
the appropriate articles of amendment with the
Secretary of State of Florida, is authorized to
establish the number of shares to be included in each
class and series and the preferences, limitations,
and relative rights of each class and series. Of
these 5,000,000 shares of preferred stock, 3,000,000
shares are designated as series A preferred stock.
All of the issued and outstanding capital stock of BF
Acquisition Group has been duly authorized and
validly issued, and is fully paid and nonassessable,
free of preemptive rights, and not subject to any
restriction on transfer under the Articles of
Incorporation or Bylaws of BF Acquisition Group or
any agreement to which BF Acquisition Group is a party
or of which BF Acquisition Group has been given
notice. There are no outstanding subscriptions,
options, warrants, convertible securities, rights,
agreements, understandings, or commitments of any kind
relating to the subscription, issuance, repurchase, or
purchase of capital stock or other securities of BF
Acquisition Group, or obligating BF Acquisition Group
to transfer any additional shares of its capital
stock of any class or any other securities.
3.3.2 Organization and Good Standing. BF
------------------------------
Acquisition Group is duly qualified as a Florida
corporation and is in good standing in any
jurisdiction in which the conduct of its business or
the ownership of its assets requires such
qualification. A true and complete copy of the
Articles of Incorporation of BF Acquisition Group,
each as amended to this date, has been delivered or
made available to Acquiror. The minute books of BF
Acquisition Group are current as required by law,
contain the minutes of all meetings of the
incorporators, Board of Directors, committees of the
Board of Directors, and shareholders from the date of
incorporation to this date, and adequately reflect
all material actions taken by the incorporators,
Board of Directors, committees of the Board of
Directors, and shareholders of BF Acquisition Group.
Other than FundraisingDirect, BF Acquisition Group
has no subsidiaries.
3.3.3 Authorization; Validity. The execution,
-----------------------
delivery, and performance of this Agreement by BF
Acquisition Group has been duly and validly
authorized by all requisite corporate action. This
Agreement has been duly and validly executed and
delivered by BF Acquisition Group, and is the legal,
valid, and binding obligation of BF Acquisition
Group, enforceable in accordance with its terms,
except as limited by bankruptcy, insolvency,
moratorium, reorganization, and other laws of general
application affecting the enforcement of creditors'
rights and by the availability of equitable remedies.
3.3.4 Consents. Other than is set forth herein, no
--------
approval, consent, waiver, or authorization of or
filing or registration with any governmental
authority or third party is required for the
execution, delivery, or performance by BF Acquisition
Group of the transactions contemplated by this
Agreement.
9
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3.3.5 Litigation. Other than is set forth herein,
----------
no litigation is pending or to the knowledge of BF
Acquisition Group, threatened, to which BF
Acquisition Group is or may become a party.
3.3.6 Violations. The execution, delivery, or
----------
performance of this Agreement does not and will not
(i) with or without the giving of notice or the
passage of time, or both, constitute a default under,
result in breach of, result in the termination of,
result in the acceleration of performance of, require
any consent, approval, or waiver, or result in the
imposition of any lien or other encumbrance on any
property or assets of BF Acquisition Group under, any
agreement, lease, or other instrument to which BF
Acquisition Group is a party or by which any of the
property or assets of BF Acquisition Group are bound;
(ii) violate any permit, license, or approval required
by BF Acquisition Group to own its assets and operate
its business; (iii) violate any law, statute, or
regulation or any judgment, order, ruling, or other
decision of any governmental authority, court, or
arbitrator; or (iv) violate any provision of BF
Acquisition Group's Articles of Incorporation or
Bylaws.
3.3.7 Broker and Finder Fees. BF Acquisition
----------------------
Group has not incurred any obligation or liability,
contingent or otherwise, for brokerage or finders'
fees or agents' commissions or other similar payment
in connection with this Agreement.
3.3.8 Reports and Financial Statements. Other
--------------------------------
than as set forth herein, from September 30, 2004 to
the date hereof, except where failure to do so did
not and would not have a material adverse effect on
BF Acquisition Group, BF Acquisition Group has filed
all reports, registrations and statements, together
with any required amendments thereto, that it was
required to file with the SEC, including, but not
limited to, Forms 10-KSB, Forms 10-QSB, Forms 8-K and
Proxy Statements (collectively the "BF Acquisition
Group's Reports"). BF Acquisition Group has
furnished or will furnish to FundraisingDirect,
Imprints Plus and Acquiror (and the Shareholders upon
the request of Shareholders) copies of all BF
Acquisition Group's Reports filed with the SEC since
April 2002. As of their respective dates (but taking
into account any amendments filed prior to the date
of this Agreement), the BF Acquisition Group's
Reports (other than the financial statements included
therein) complied in all material respects with all
the rules and regulations promulgated by the SEC and
did not contain any untrue statement of material fact
or omit to state a material fact required to be
stated therein or necessary to make the statements
therein, in light of the circumstances under which
they were made, misleading. The financial statements
of BF Acquisition Group included in the BF
Acquisition Group's Reports complied as to form in
all material respects with applicable accounting
requirements and the published rules and regulations
of the SEC with respect thereto, were prepared in
accordance with GAAP consistently applied during the
periods presented (except, as noted therein, or, in
the case of unaudited statements, as permitted by
Form 10-QSB of the SEC) and fairly present (subject,
in the case of unaudited statements, to normal audit
adjustments) the financial position of BF Acquisition
Group and its consolidated subsidiaries as of the
date thereof and the results of their operations and
their cash flows for the periods then ended.
3.3.9 Financial statements. Audited consolidated
--------------------
financial statements for the nine months ended
September 30, 2004 and the year ended December 31,
2003 and unaudited consolidated financial statements
for the three months ended December 31, 2004 and 2003
have been submitted to Acquiror. These statements
were prepared according to generally accepted
accounting principals. They fairly represent the
financial position of BF Acquisition Group as of the
respective dates and the results of its operations
for the periods indicated. Since the date of the last
balance sheet, there has not been any material change
in the financial condition or operations of BF
Acquisition Group other than as described in
the BF Acquisition Group SEC Reports (as defined in
section 3.3.10 below). BF Acquisition Group did not,
as of the date of the last balance sheet, have any
debt, liability or obligations of any nature, whether
accrued, absolute, contingent or otherwise, and
whether due or to become due that is not reflected in
BF Acquisition Group's balance sheet.
3.3.10 BF Acquisition Group SEC Filings.
--------------------------------
BF Acquisition Group has filed all forms, reports
and documents required to be filed by BF Acquisition
Group with the SEC since September 30, 2004, and has
made available to FundraisingDirect, Imprints Plus
and Acquiror (and the Shareholders upon the request
of Shareholders) all such forms, reports and
documents in the form filed with the SEC. All such
required forms, reports and documents (including
those that BF Acquisition Group may file subsequent
to the date hereof) are referred to herein as the "BF
Acquisition Group SEC Reports." As of their
respective dates, the BF Acquisition Group SEC
Reports (i) were or will be prepared in accordance
with the requirements of the Securities Act or the
Exchange Act, as applicable, and the rules and
regulations thereunder, and (ii) did not at the time
10
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they were filed, or will not at the time they are
filed, contain any untrue statement of a material
fact or omit to state a material fact required to be
stated therein or necessary in order to make the
statements therein, in the light of the circumstances
under which they were made, not misleading. The
financial statements contained in the BF Acquisition
Group Documents, together with the notes thereto,
have been prepared in accordance with GAAP
consistently applied throughout the periods indicated
(except as may be indicated in the notes thereto, or,
in the case of the unaudited financial statements, as
permitted by Form 10Q), and present fairly the
consolidated financial condition of BF Acquisition
Group at their respective dates and the consolidated
results of operations and cash flows of BF
Acquisition Group for the periods then ended.
3.3.11 Tax Filings. All tax returns required to
-----------
be filed with respect to BF Acquisition Group and its
affiliates, or any of their income, properties or
operations are in all material respects true,
complete and correct and have been duly filed in a
timely manner. Further, all taxes attributable to BF
Acquisition Group and its affiliates that are or were
due and payable (without regard to whether such taxes
have been assessed) have been paid.
3.3.12 Survival of Representations and Warranties.
------------------------------------------
Each of the representations and warranties in this Article
III shall survive the Closing until the expiration of
all applicable statute of limitations periods.
3.3.13 Registration Statement; Prospectus. The
----------------------------------
information supplied by BF Acquisition Group and/or
its Stockholders for inclusion in the Registration
Statement shall not at the time the Registration
Statement 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 in order to make the statements therein,
in light of the circumstances under which they are
made, not misleading. The information supplied by BF
Acquisition Group and/or its Stockholders for
inclusion in the proxy statement or information
statement of Acquiror and prospectus of Acquiror in
connection with the Merger (as supplemented or
amended prior to the Effective Time, the
"Prospectus") shall not, on the date the Prospectus
is first mailed to BF Acquisition Group's
Stockholders or at the Effective Time contain any
untrue statement of a material fact. The proxy
statement or information statement relating to this
agreement and the Contemplated Transactions (as
supplemented or amended prior to the Effective Time)
will comply as to form in all material respects with
the provisions of all applicable federal and state
laws. If, at any time prior to the Effective Time,
any event relating to BF Acquisition Group or any of
its affiliates, officers, directors or Stockholders
should be discovered by BF Acquisition Group which is
required to be set forth in an amendment to the
Registration Statement or a supplement to the
Prospectus, BF Acquisition Group shall promptly inform
Acquiror. Notwithstanding the foregoing, BF
Acquisition Group makes no representation or warranty
with respect to any information supplied by Imprints
Plus or Acquiror, or any of their respective
Stockholders, that is contained in any of the
foregoing documents.
3.3.14 Certain Proceedings.
-------------------
There is no pending proceeding that has been
commenced against BF Acquisition Group and that
challenges, or may have the effect of preventing,
delaying, making illegal, or otherwise interfering with,
any of the Contemplated Transactions. To BF Acquisition
Group's knowledge, no such proceeding has been
threatened.
3.3.15 Disclosure. The representations and
----------
warranties of BF Acquisition Group contained in
this Article III do not contain any untrue
statement of a material fact and do not omit to state
any material fact necessary to make such
representations and warranties, in light of the
circumstances under which they were made, not
misleading.
3.4.0 Each Stockholder severally represents and
warrants to the Acquiror as follows:
3.4.1 Acquiring For Their Own Account. The
-------------------------------
Stockholder is acquiring the shares of Acquiror stock
to be received by it as contemplated by this
Agreement for its own account for investment and not
with a view towards the resale, transfer or
distribution thereof, nor with any present intention
of distributing such shares of Acquiror stock, but
subject, nevertheless, to any requirement of law that
the disposition of the Stockholders' property shall
at all times be within the Stockholders' control, and
without prejudice to the Stockholders' right at all
times to sell or otherwise dispose of all or any part
of such shares of Acquiror Stock under a registration
statement filed with and declared effective by the
SEC under the Securities Act or under an exemption
from said registration available under the Securities
Act.
11
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3.4.2 Authorization. The Stockholder has full
-------------
power and legal right and authority to execute and
deliver this Agreement and to perform its obligations
hereunder.
3.4.3 Binding Obligation. The Stockholder has
------------------
taken all action necessary for the authorization,
execution, delivery, and performance of this Agreement
and its obligations hereunder, and, upon execution and
delivery by the Acquiror, this Agreement shall
constitute the valid and binding obligation of such
Stockholder, enforceable against such Stockholder in
accordance with its terms, except that such
enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws now
or hereafter in effect relating to creditors' rights
and general principles of equity.
3.4.4 Investment Sophistication. The Stockholder
-------------------------
has such knowledge and experience in financial and
business matters that he is capable of evaluating the
merits and risks of its investment in the Acquiror as
contemplated by this Agreement, and is able to bear
the economic risk of such investment for an
indefinite period of time. The Stockholder has
been furnished access to such information and
documents as it has requested and has been afforded
an opportunity to ask questions of and receive
answers from representatives of the Acquiror
concerning the terms and conditions of this Agreement
and the receipt of the shares of Acquiror stock
contemplated hereby.
3.4.5 No Violations. The Stockholder is not in
-------------
material violation of any applicable federal, state
or local laws, rules or regulations, including,
without limitation, federal or state securities laws,
rules or regulations, and the receipt by it of shares
of Acquiror stock as contemplated by this Agreement
will not result in a material violation by it of any
applicable state securities laws, rules and
regulations applicable to it by virtue of the state
of its organization or domicile (as applicable), the
location of its offices or residence (as applicable)
or its assets or the nature and/or location of its
business operations.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF ACQUIROR
------------------------------------------
The Acquiror represents and warrants to each of
the Disappearing Companies the following.
4.1 Capital Structure. The capitalization of
-----------------
Acquiror consists of (i) 50,000,000 shares of common
stock, $0.001 par value, of which 100 shares are
issued and outstanding; (ii) 5,000,000 shares of
series A preferred stock; $0.50 par value, which have
identical rights and preferences to the BF Acquisition
Group series A preferred stock described in section
3.3.1, of which no shares are issued and outstanding;
and (ii) 20,000,000 shares of preferred stock, of
which no shares are issued and outstanding. The board
of directors is authorized to provide for the
issuance of such preferred stock in classes and
series and, by filing the appropriate articles of
amendment with the Secretary of State of Delaware, is
authorized to establish the number of shares to be
included in each class and series and the
preferences, limitations, and relative rights of each
class and series. There are no outstanding
subscriptions, options, warrants, convertible
securities, rights, agreements, understandings, or
commitments of any kind relating to the subscription,
issuance, repurchase, or purchase of capital stock or
other securities of Acquiror, or obligating Acquiror
to transfer any additional shares of its capital
stock of any class or any other securities.
4.2 Organization and Good Standing. Acquiror is a
------------------------------
newly formed corporation. Acquiror is duly qualified
as a Delaware corporation and is in good standing in
any jurisdiction in which the conduct of its business
or the ownership of its assets requires such
qualification. A true and complete copy of the
Certificate of Incorporation and Bylaws of Acquiror,
each as amended to this date, has been delivered or
made available to each Disappearing Company. The
minute books of Acquiror are current as required by
law, contain the minutes of all meetings of the
incorporators, Board of Directors, and committees of
the Board of Directors from the date of incorporation
to this date, and adequately reflect all material
actions taken by the incorporators, Board of Directors,
and committees of the Board of Directors. Acquiror has
no subsidiaries.
4.3 Authorization; Validity. The execution, delivery,
-----------------------
and performance of this Agreement by Acquiror has been
duly and validly authorized by all requisite
corporate action. This Agreement has been duly and
validly executed and delivered by Acquiror, and is the
legal, valid, and binding obligation of Acquiror,
enforceable in accordance with its terms, except as
limited by bankruptcy, insolvency, moratorium,
reorganization, and other laws of general application
affecting the enforcement of creditors' rights and by
the availability of equitable remedies.
12
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4.4 Consents. Other than is set forth herein, no
--------
approval, consent, waiver, or authorization of or
filing or registration with any governmental
authority or third party is required for the
execution, delivery, or performance by Acquiror of
the transactions contemplated by this Agreement.
4.5 Litigation. Other than is set forth herein, no
----------
litigation is pending or to the knowledge of
Acquiror, threatened, to which Acquiror is or may
become a party.
4.6 Violations. The execution, delivery, or
----------
performance of this Agreement does not and will not
(i) with or without the giving of notice or the
passage of time, or both, constitute a default under,
result in breach of, result in the termination of,
result in the acceleration of performance of, require
any consent, approval, or waiver, or result in the
imposition of any lien or other encumbrance on any
property or assets of Acquiror under, any agreement,
lease, or other instrument to which Acquiror is a
party or by which any of the property or assets of
Acquiror are bound; (ii) violate any permit, license,
or approval required by Acquiror to own its assets
and operate its business; (iii) violate any law,
statute, or regulation or any judgment, order, ruling,
or other decision of any governmental authority, court,
or arbitrator; or (iv) violate any provision of
Acquiror's Certificate of Incorporation or Bylaws.
4.7 Broker and Finder Fees. Acquiror and its
----------------------
officers and agents have incurred no obligation or
liability, contingent or otherwise, for brokerage or
finders' fees or agents' commissions or other similar
payment in connection with this Agreement, and will
indemnify and hold Stockholders harmless from any
such payment alleged to be due by or through Acquiror
as a result of the action of Acquiror or its officers
or agents.
4.8 Survival of Representations and Warranties.
------------------------------------------
Each of the representations and warranties in this
Article IV shall survive the Closing until the
expiration of all applicable statute of limitations
periods.
4.9 Certain Proceedings.
-------------------
There is no pending proceeding that has been commenced
against Acquiror and that challenges, or may have the
effect of preventing, delaying, making illegal, or
otherwise interfering with, any of the Contemplated
Transactions. To Acquiror's knowledge, no such
proceeding has been threatened.
4.10 Registration Statement; Prospectus.
----------------------------------
The information supplied by Acquiror for inclusion
in the Registration Statement shall not at the time
the Registration Statement 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 in order to make the
statements therein, in light of the circumstances
under which they are made, not misleading. The
information supplied by Acquiror for inclusion in the
information statement and Prospectus shall not, on
the date the Prospectus is first mailed to the
Stockholders or at the Effective Time 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 false or misleading. The information statement
relating to the Contemplated Transactions (as
supplemented or amended prior to the Effective Time)
and the Prospectus will comply as to form in all
material respects with the provisions of the
Securities Act, the Exchange Act, and the rules and
regulations thereunder. If at any time prior to the
Effective Time, any event relating to Acquiror or any
of its affiliates, officers or directors should be
discovered by Acquiror which is required to be set
forth in an amendment to the Registration Statement
or a supplement to the Prospectus, Acquiror shall
promptly inform each of the Disappearing Companies
and shall prepare and cause to be filed such
amendment or supplement. Notwithstanding the
foregoing, Acquiror makes no representation or
warranty with respect to any information supplied by
the Disappearing Companies or the Stockholders that
is contained in any of the foregoing documents.
4.11 Issuance of Acquiror Common Stock and Preferred
----------------------------------------------
Stock.
-----
Acquiror has a sufficient number of shares of
authorized but unissued shares (or shares held in
treasury) of Acquiror Common Stock and Preferred
Stock to allow it to issue all shares of Acquiror
Common Stock and Preferred Stock required to be
issued or reserved for issuance pursuant to Section
2.1 and has taken or will, prior to the Closing Date,
take such actions as are required to reserve such
shares for issuance as required under Section 2.1.
13
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4.12 Disclosure.
----------
The representations and warranties of Acquiror
contained in this Article IV do not contain any
untrue statement of a material fact and do not omit
to state any material fact necessary to make such
representations and warranties, in light of the
circumstances under which they were made, not
misleading.
ARTICLE V
COVENANTS OF EACH DISAPPEARING COMPANY PRIOR TO
CLOSING DATE
-----------------------------------------------
5.1 Conduct Pending Closing. Except as may otherwise
-----------------------
be consented to or approved in writing by Acquiror, each
Disappearing Company agrees that from the date of
this Agreement and until the Closing that the
business of each such company shall be conducted only
in the ordinary course consistent with past
practices.
5.2 Confidentiality. Except as may otherwise be
---------------
consented to or approved in writing by Acquiror, each
Disappearing Company agrees that from the date of this
Agreement and until the Closing that each Disappearing
Company shall keep the provisions of this Agreement
confidential and will not disclose its provisions to
any person, excluding their accountants, attorneys,
and other professionals with whom they conducts
business and to whom such disclosure is reasonably
necessary; provided, however, that such persons shall
be advised of the confidential nature of this
Agreement at the time of such disclosure.
5.3 Written Consent. By the Closing Date, each
---------------
Disappearing Company shall have obtained the written
consent of a majority of the shares of their
respective companies entitled to vote on the matter
consenting to the Merger, this Agreement and the
Contemplated Transactions.
5.4 Record Date; Notice of Appraisal Rights. Each
---------------------------------------
Disappearing Companies' Board of Directors shall fix
as the record date for determination of their
Stockholders entitled to notice or to vote on the
same a date that is on or within ten (10) days after
the date on which the Board of Directors shall have
approved the Merger, this Agreement and the
Contemplated Transactions. Each Disappearing Company
shall mail notices to the Stockholders not more than
ten (10) days after such record date advising the
Stockholders of the taking of action by written
consent approving the Merger, this Agreement and the
Contemplated Transactions, and notifying the
Stockholders of the availability of appraisal rights
in accordance with Delaware Law and Florida Law.
5.5 Best Efforts. Between the date of this Agreement
------------
and the Closing Date, each Disappearing Company will
use their Best Efforts to cause the conditions in
Articles VIII and IX to be satisfied.
ARTICLE VI
COVENANTS OF ACQUIROR PRIOR TO CLOSING DATE
-------------------------------------------
6.1 Conduct Pending Closing. Except as may
-----------------------
otherwise be consented to or approved in writing by
each Disappearing Company, Acquiror agrees that from
the date of this Agreement and until the Closing that
the business of Acquiror shall be conducted only in
the ordinary course consistent with past practices.
6.2 Stock Options.
-------------
(a) At the Effective Time, each outstanding
Imprints Plus Option under Imprints Plus Option Plan,
whether vested or unvested, shall be assumed by
Acquiror and deemed to constitute an option (a "New
Acquiror Option") to acquire, on the same terms and
conditions as were applicable under Imprints Plus
Option Plan, the same amount of cash and the same
number of shares of Acquiror Common Stock as the
holder of such Imprints Plus Option would have been
entitled to receive pursuant to the Merger had such
holder exercised such option in full immediately
prior to the Effective Time (rounded down to the
nearest whole number). The exercise price per share
(including the cash payment) shall equal (i) the
aggregate exercise price for the shares of Imprints
Plus Common Stock otherwise purchasable pursuant to
such Imprints Plus Option divided by (ii) the number
of full shares of Acquiror Common Stock deemed
purchasable pursuant to such New Acquiror Option in
accordance with the foregoing; provided, however,
that in the case of any Imprints Plus Option to which
Section 422 of the Code applies ("Incentive Stock
Options"), the option price, the number of shares
purchasable pursuant to such option and the terms and
14
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conditions of exercise of such option shall be
determined in order to comply with Section 424(a) of
the Code. The term, exercisability, vesting schedule,
acceleration events, status as an "incentive stock
option" under Section 422 of the Code, if applicable
and all of the other terms of the option shall
otherwise remain unchanged.
(b) As soon as practicable after the Effective
Time, Acquiror shall deliver to the participants in
Imprints Plus Option Plan appropriate notice setting
forth such participants' rights pursuant thereto and
the grants pursuant to Imprints Plus Option Plan
shall continue in effect on the same terms and
conditions (subject to the adjustments required by
this Section 6.2 after giving effect to the Merger).
Acquiror shall comply with the terms of Imprints Plus
Option Plan and use Best Efforts to ensure, to the
extent required by, and subject to the provisions of,
such Imprints Plus Option Plan and Sections 422
and 424(a) of the Code, that Imprints Plus Options
which qualified as Incentive Stock Options prior to
the Effective Time continue to qualify as incentive
stock options after the Effective Time.
(c) In the event any New Acquiror Options are
cancelled after the Effective Time without having
been fully exercised, (i) Acquiror shall be entitled
to retain the amount of cash that would have been
payable by the Acquiror upon exercise of such
cancelled New Acquiror Options and the Stockholders
shall have no right to receive any portion of such
cash, and (ii) the shares reserved for issuance upon
exercise of such New Acquiror Options shall no longer
be reserved and the Stockholders shall have no right
to receive any portion of such shares.
6.3 Confidentiality. Except as may otherwise be
---------------
consented to or approved in writing by each Disappearing
Company, Acquiror agrees that from the date of this
Agreement and until the Closing, Acquiror shall keep
the provisions of this Agreement confidential and will
not disclose its provisions to any person, excluding
Acquiror's accountants, attorneys, and other
professionals with whom Acquiror conducts business
and to whom such disclosure is reasonably necessary;
provided, however, that such persons shall be advised
of the confidential nature of this Agreement at the
time of such disclosure.
6.4 Best Efforts.
------------
Except as set forth in the proviso to Section 6.1,
between the date of this Agreement and the Closing Date,
Acquiror will use its Best Efforts to cause the
conditions in Articles VIII and IX to be satisfied.
ARTICLE VII
ADDITIONAL AGREEMENTS
---------------------
7.1 Prospectus; Registration Statement; Other
------------------------------------------
Filings: Board Recommendations.
------- ----------------------
(a) As promptly as practicable after the
execution of this Agreement, Acquiror will prepare
and file with the SEC the Registration Statement,
which shall include a preliminary proxy statement or
information statement of the Disappearing Companies
relating to the Merger, to the extent required by
law, as well as the Prospectus of Acquiror. Each of
the Disappearing Companies and Acquiror will respond
to any comments of the SEC and will use its
respective commercially reasonable efforts to have
the Registration Statement declared effective under
the Securities Act as promptly as practicable after
such filing. Each Disappearing Company will cause the
proxy statement or information statement to be mailed
to its stockholders at the earliest practicable time
after the Registration Statement is declared
effective by the SEC. As promptly as practicable
after the date of this Agreement, each of the
Disappearing Companies and Acquiror will prepare and
file any other filings required to be filed by it
under the Exchange Act, the Securities Act or any
other federal, foreign or Blue Sky or related laws
relating to the Merger and the transactions
contemplated in this Agreement (the "Other Filings").
Each of the Disappearing Companies and Acquiror will
notify the other promptly upon the receipt of any
comments from the SEC or its staff or any other
government officials and of any request by the SEC or
its staff or any other government officials for
amendments or supplements to the Registration
Statement, the Prospectus or any Other Filing or for
additional information, oral or written, and will
supply the other with copies of all correspondence
between such party or any of its representatives,
on the one hand, and the SEC,
or its staff or any other government officials, on
the other hand, with respect to the Registration
Statement, the Prospectus, the Merger or any Other
Filing. Each of the Disappearing Companies and
Acquiror will cause all documents that it is
responsible for filing with the SEC or other
regulatory authorities under this Section 7.1(a) to
comply in all material respects with all applicable
requirements of law and the rules and regulations
promulgated thereunder. Whenever any event occurs
which is required to be set forth in an amendment or
supplement to the Prospectus, the Registration
Statement or any Other Filing, the Disappearing
15
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Companies or Acquiror, as the case may be, will
promptly inform the other of such occurrence and
cooperate in filing with the SEC or its staff or any
other government officials, and/or mailing to
stockholders of the Disappearing Companies and
Acquiror, such amendment or supplement
(b) The Disappearing Companies shall prepare a
proxy statement or information statement containing
the information required under Delaware Law or
Florida Law with respect to the Contemplated
Transactions. Such proxy statement or information
statement will be mailed to the Stockholders promptly
(but in no event more than three business days) after
the Registration Statement is declared effective by
the SEC.
7.2 Filing Of Form S-8.
------------------
As soon as practicable following the Effective
Time, Acquiror shall file a registration statement on
Form S-8 (or any successor or other appropriate form)
with respect to the shares of Acquiror Common Stock
subject to New Acquiror Options and shall use its
reasonable efforts to maintain the effectiveness of
such registration statement (and maintain the current
status of the prospectus or prospectuses contained
therein) for so long as such New Acquiror Options
remain outstanding.
7.3 Imprints Plus Employees.
-----------------------
Immediately following the Effective Time, Acquiror
shall retain substantially all employees of Imprints
Plus who are employed at the Effective Time as
employees-at-will (except to the extent that such
employees are parties to contracts providing for
other employment terms, in which case such employees
shall be retained in accordance with the terms of
such contracts) and shall make available to such
employees employee benefits comparable to those
provided by Imprints Plus prior to the effective
time. Acquiror shall give employees of Imprints Plus
credit for their respective periods of employment
with Imprints Plus prior to the Effective Time for
purposes of determining their eligibility for and
level of participation in any employee benefit
program, plan or arrangement which Acquiror adopts,
maintains or contributes to following the Effective
Time.
7.4 Compliance with Rule 145.
------------------------
For as long as (i) Acquiror is required to file
reports pursuant to Section 13 or 15(d) of the
Exchange Act and (ii) any affiliate (as defined for
purposes of Rule 145 under the Securities Act) of any
Disappearing Company holds shares of Acquiror Common
Stock issued in the Merger (but not for a period in
excess of two years from the Effective Time),
Acquiror shall file with the SEC or otherwise make
publicly available all information about Acquiror
required pursuant to Rule 144(c) under the Securities
Act to enable such affiliate to resell such shares
under the provisions of Rule 145(d) under the
Securities Act; provided that this covenant shall
terminate with respect to any such affiliate at such
time as such all Acquiror Common Stock held by such
affiliate that was received by such affiliate in the
Merger can be sold without registration in any three
(3)-month period without violating the volume
limitations of Section 145.
ARTICLE VIII
CONDITIONS PRECEDENT TO ACQUIROR'S OBLIGATION TO CLOSE
------------------------------------------------------
Acquiror's obligation to pay the Merger Consideration
on the Closing Date and to consummate the other
Contemplated Transactions at the Closing is subject to
the satisfaction, at or prior to the Closing, of each of
the following conditions (any of which may be waived
by Acquiror, in whole or in part):
8.1 Accuracy Of Representations. (a) Each of the
---------------------------
Disappearing Companies' representations and
warranties in this Agreement must have been true,
complete and correct in all respects as of the date
of this Agreement, and must be true, complete and
correct in all material respects as of the Closing
Date as if made on the Closing Date, without giving
effect to any supplement to their disclosure
schedule, if any; provided that any representation or
warranty qualified by the term "material" or words to
such effect, or otherwise qualified as to
materiality, shall be true, complete and correct on
the Closing Date in accordance with the terms
thereof. (b) To the extent that such representations
and warranties are not true, complete and correct in
all material respects as of the Closing Date as if
made on the Closing Date (subject to the proviso
contained in the last sentence of Section 8.1(a)),
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any inaccuracies in such representations and
warranties, individually or in the aggregate, shall
not have given rise to a material adverse effect on
any Disappearing Company.
8.2 Stockholders' Performance. All of the
-------------------------
covenants and obligations that each Disappearing
Company is required to perform or to comply with
pursuant to this Agreement at or prior to the Closing
(considered collectively), and each of these
covenants and obligations (considered individually),
must have been duly performed and complied with in
all material respects.
8.3 Consents. Any consent identified herein of any
--------
Disappearing Company must have been obtained and must
be in full force and effect.
8.4 Delivery of Closing Documents. Each of the
-----------------------------
documents set forth in Section 2.7(a) must have been
delivered to Acquiror.
8.5 No Proceedings. Since the date of this
--------------
Agreement, there must not have been commenced or
threatened against Acquiror, or against any person
affiliated with Acquiror, any Proceeding (a)
involving any challenge to, or seeking damages or
other relief in connection with, any of the
Contemplated Transactions, or (b) that may have the
effect of preventing, delaying, making illegal, or
otherwise interfering with any of the Contemplated
Transactions.
8.6 No Claim Regarding Stock Ownership Or Sale
------------------------------------------
Proceeds.
--------
There must not have been made or threatened by any
person any claim asserting that such person (a) is
the holder or the beneficial owner of any stock of a
Disappearing Company (other than a stockholder), (b)
has the right to acquire or to obtain beneficial
ownership of, any stock of, or any other voting,
equity, or ownership interest in, any of the
Disappearing Companies, or (c) is entitled to all or
any portion of the Merger Consideration.
8.7 No Prohibition. Neither the consummation nor
--------------
the performance of any of the Contemplated
Transactions and the other covenants and obligations
contemplated hereby will, directly or indirectly
(with or without notice or lapse of time), materially
contravene, or conflict with, or result in a material
violation of, or cause Acquiror or any person
affiliated with Acquiror to suffer any material
adverse consequence under, any applicable legal
requirement or order.
8.8 Stockholder and Board Approval. All action
------------------------------
required to be taken by the Board of Directors of each
of the Disappearing Companies to authorize the
execution, delivery and performance of this Agreement
and the consummation of the Contemplated Transactions
shall have been duly and validly taken by the Board of
Directors of each of the Disappearing Companies.
Additionally, at least a majority of the shares of
each of the Disappearing Companies entitled to vote
thereon shall have executed a written consent
approving this Agreement and the Contemplated
Transactions.
8.9 Record Date; Notice of Appraisal Rights. The
---------------------------------------
Board of Directors of each of the Disappearing
Companies shall have fixed as the record date for
determination of the stockholders entitled to notice
or to vote in accordance with applicable Delaware Law
and Florida Law. Notice shall have been mailed to the
stockholders not more than ten (10) days after such
record date advising the stockholders of the taking
of action by written consent approving the Merger,
this Agreement and the Contemplated Transactions, and
notifying the Stockholders of the availability of
appraisal rights in accordance with Section 262(d)(2)
of Delaware law.
8.10 No Injunction. There must not be in effect
-------------
any legal requirement or any injunction or other
order that (a) prohibits any of the Contemplated
Transactions, and (b) has been adopted or issued, or
has otherwise become effective, since the date of
this Agreement; provided, however, that Acquiror
shall have used its commercially reasonable efforts
to prevent the entry of any such injunction or order
and to appeal as promptly as possibly any such
injunction or order that may be entered.
8.11 Effectiveness of Form S-4 Registration
--------------------------------------
Statement. The Registration Statement shall have been
---------
declared effective by the SEC in accordance with the
provisions of the Securities Act, no stop order
suspending the effectiveness of the Registration
Statement shall have been issued by the SEC, and no
proceeding for that purpose shall have been initiated
or threatened by the SEC or any state securities
administrator. Any request for additional information
17
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of any of the Disappearing Companies or any of the
stockholders on the part of the SEC shall have been
complied with to the reasonable satisfaction of the
Acquiror.
8.12 Dissenting Shares. As of the Effective Time,
-----------------
Stockholders holding no more than twenty percent
(20%) of each of any Disappearing Company's common
stock, in the aggregate (as of the record date for
purposes of determining the Stockholders of any
Disappearing Company entitled to receive notice of
their appraisal rights in accordance with Delaware
Law or Florida Law, as applicable), shall have
delivered to any Disappearing Company written notice
of their intent to demand payment for their shares of
such Disappearing Company's common stock.
ARTICLE IX
CONDITIONS PRECEDENT TO EACH DISAPPEARING
COMPANY'S OBLIGATION TO CLOSE
-----------------------------
Each Disappearing Company's obligation to take the
actions required to be taken by each Disappearing
Company at the Closing is subject to the
satisfaction, at or prior to the Closing, of each of
the following conditions (any of which may be waived
by any Disappearing Company, in whole or in part):
9.1 Accuracy Of Representations.
---------------------------
(a) Each of Acquiror's representations and
warranties in this Agreement must have been true,
complete and correct in all respects as of the date
of this Agreement, and must be true, complete and
correct in all material respects as of the Closing
Date as if made on the Closing Date, without giving
effect to any supplement to the Acquiror disclosure
schedule; provided that any representation or
warranty qualified by the term "material" or words to
such effect, or otherwise qualified as to
materiality, shall be true, complete and correct on
the Closing Date in accordance with the terms
thereof.
(b) To the extent that such representations and
warranties are not true, complete and correct in all
material respects as of the Closing Date as if made
on the Closing Date (subject to the proviso contained
in the last sentence of Section 9.1(a)), any
inaccuracies in such representations and warranties,
individually or in the aggregate, shall not have
given rise to a material adverse effect on Acquiror.
9.2 Acquiror's Performance.
----------------------
(a) All of the covenants and obligations that
Acquiror is required to perform or to comply with
pursuant to this Agreement at or prior to the Closing
(considered collectively), and each of these
covenants and obligations (considered individually),
must have been performed and complied with in all
material respects.
(b) Acquiror must have delivered each of the
documents required to be delivered by Acquiror pursuant
to Section 2.7.
9.3 Tax Opinion. Each Disappearing Company shall
-----------
have received an opinion of Xxxxxxxx Xxxx Lodge & Hutz
LLP as to the tax-free nature of the equity portion of
the Merger Consideration.
9.4 Delivery of Closing Documents. Each of the
-----------------------------
documents set forth in Section 2.7(b) must have been
delivered to each of the Disappearing Companies.
ARTICLE X
TERMINATION
-----------
10.1 Termination Events. This Agreement may, by
------------------
notice given prior to or at the Closing, be terminated:
(a) by either Acquiror or any Disappearing Company
if material breach of any provision of this Agreement
has been committed by the other party and such breach
has not been waived or cured;
(b) (i) by Acquiror if any of the conditions in
Article VIII has not been satisfied as of the Closing Date
or if satisfaction of such a condition is or becomes
impossible (other than through the failure of
18
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Acquiror to comply with its obligations under this
Agreement) and Acquiror has not waived such condition
on or before the Closing Date; or (ii) by any
Disappearing Company, if any of the conditions in
Article IX has not been satisfied of the Closing Date
or if satisfaction of such a condition is or becomes
impossible (other than through the failure of
Imprints Plus to comply with their obligations under
this Agreement) and each of the Disappearing
Companies has not waived such condition on or before
the Closing Date; or
(c) by mutual consent of Acquiror and
each of the Disappearing Companies.
10.2 Effect Of Termination.
---------------------
(a) Each party's right of termination under
Section 10.1 is in addition to any other rights it may
have under this Agreement or otherwise, and the
exercise of a right of termination will not be an
election of remedies. If this Agreement is terminated
pursuant to Section 10.1, all further obligations of the
parties under this Agreement will terminate, except that
the obligations in Sections 12.1 will survive; provided,
however, that if this Agreement is terminated by a
party because of the breach of the Agreement by the
other party or because one or more of the conditions
to the terminating party's obligations under this
Agreement is not satisfied as a result of the other
party's failure to comply with its obligations under
this Agreement, the terminating party's right to
pursue all legal remedies will survive such
termination unimpaired.
ARTICLE XI
INTENTIONALLY LEFT BLANK
------------------------
ARTICLE XII
GENERAL PROVISIONS
------------------
12.1 Expenses. Except as otherwise expressly
--------
provided in this Agreement, Imprints Plus will bear the
expenses incurred in connection with the preparation,
execution, and performance of this Agreement and the
Contemplated Transactions, including all fees and
expenses of agents, representatives, counsel, and
accountants.
12.2 Further Assurances. The parties agree (a) to
------------------
furnish upon request to each other such further information,
(b) to execute and deliver to each other such other
documents, and (c) to do such other acts and things,
all as the other party may reasonably request for the
purpose of carrying out the intent of this Agreement
and the documents referred to in this Agreement.
12.3 Waiver. The rights and remedies of the
------
parties to this Agreement are cumulative and not
alternative. Neither the failure nor any delay by any
party in exercising any right, power, or privilege
under this Agreement or the documents referred to in
this Agreement will operate as a waiver of such
right, power, or privilege, and no single or partial
exercise of any such right, power, or privilege will
preclude any other or further exercise of such right,
power, or privilege or the exercise of any other
right, power, or privilege. To the maximum extent
permitted by applicable law, (a) no claim or right
arising out of this Agreement or the documents
referred to in this Agreement can be discharged by
one party, in whole or in part, by a waiver or
renunciation of the claim or right unless in writing
signed by the other party; (b) no waiver that may be
given by a party will be applicable except in the
specific instance for which it is given; and (c) no
notice to or demand on one party will be deemed to be
a waiver of any obligation of such party or of the
right of the party giving such notice or demand to
take further action without notice or demand as
provided in this Agreement or the documents referred
to in this Agreement.
12.4 Entire Agreement And Modification. This
---------------------------------
Agreement supersedes all prior agreements between the
parties with respect to its subject matter and
constitutes (along with the documents referred to in
this Agreement) a complete and exclusive statement of
the terms of the agreement between the parties with
respect to its subject matter. This Agreement may not
be amended except by a written agreement executed by
the party to be charged with the amendment.
12.5 Disclosure Schedules. In the event of any
--------------------
inconsistency between the statements in the body of
this Agreement and those in the disclosure schedules
(other than an exception expressly set forth as such in
19
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the disclosure schedules with respect to a specifically
identified representation or warranty), the
statements in the body of this Agreement will
control.
12.6 Assignments, Successors, And No Third-Party
-------------------------------------------
Rights. Neither Party may assign any of its rights under
------
Agreement without the prior consent of the other
parties except that Acquiror may assign any of its
rights (but not its obligations) under this Agreement
to any Subsidiary of Acquiror. Subject to the
preceding sentence, this Agreement will apply to, be
binding in all respects upon, and inure to the
benefit of the successors and permitted assigns of
the parties. Nothing expressed or referred to in this
Agreement will be construed to give any person other
than the parties to this Agreement any legal or
equitable right, remedy, or claim under or with
respect to this Agreement or any provision of this
Agreement. Except as expressly provided herein, this
Agreement and all of its provisions and conditions
are for the sole and exclusive benefit of the parties
to this Agreement and their successors and assigns.
12.7 Severability. If any provision of this
------------
Agreement is held invalid or unenforceable by any court
of competent jurisdiction, the other provisions of this
Agreement will remain in full force and effect. Any
provision of this Agreement held invalid or unenforceable
only in part or degree will remain in full force and
effect to the extent not held invalid or unenforceable.
12.8 Section Headings, Construction. The headings
------------------------------
of Sections in this Agreement are provided for
convenience only and will not affect its construction
or interpretation. All references to "Section" or
"Sections" refer to the corresponding Section or
Sections of this Agreement. All words used in this
Agreement will be construed to be of such gender or
number as the circumstances require. Unless otherwise
expressly provided, the word "including" does not
limit the preceding words or terms.
12.9 Time Of Essence. With regard to all dates and
---------------
time periods set forth or referred to in this Agreement,
time is of the essence.
12.10 Governing Law. This Agreement will be
-------------
governed by the laws of the State of Delaware without
regard to conflicts of laws principles.
12.11 Counterparts. This Agreement may be executed
------------
in one or more counterparts, each of which will be deemed
to be an original copy of this Agreement and all of which,
when taken together, will be deemed to constitute one
and the same agreement.
12.12 Joint Preparation. This Agreement has been
-----------------
prepared and extensively negotiated by all parties hereto
with the assistance and input of their respective
attorneys, and therefore no ambiguity herein shall be
construed for or against any party based upon the identity
of the author of this Agreement or any portion hereof.
IN WITNESS WHEREOF, the parties have executed and delivered
this Agreement as of the date first written above.
ATTEST: IPI FUNDRAISING, INC.,
By:/s/Xxxxxx XxXxxxxxx By:/s/ Xxxxxx XxXxxxxxx
------------------------ ---------------------------
Xxxxxx XxXxxxxxx, President
BF ACQUISITION GROUP III, INC.,
By:/s/Xxxxxx XxXxxxxxx By:/s/ Xxxxxx XxXxxxxxx
------------------------ ---------------------------
Xxxxxx XxXxxxxxx, President
20
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XXXXXXXXXXXXXXXXX.XXX, INC.,
By:/s/Xxxxxx XxXxxxxxx By:/s/ Xxxxxx XxXxxxxxx
------------------------ ---------------------------
Xxxxxx XxXxxxxxx, President
IMPRINTS PLUS, INC.,
By:/s/Xxxxxx XxXxxxxxx By:/s/ Xxxxxx XxXxxxxxx
------------------------ ---------------------------
Xxxxxx XxXxxxxxx, President
[See Counterpart Signature Pages Attached]
21
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COUNTERPART SIGNATURE PAGE
TO
AGREEMENT AND PLAN OF MERGER
(the "Merger Agreement") dated
February 8, 2005
between and among
IPI Fundraising, Inc.;
BF Acquisition Group III, Inc.;
XxxxxxxxxxxXxxxxx.xxx, Inc.;
Imprints Plus, Inc.;
and
the Shareholders whose signatures
appear on the Counterpart Signature Pages thereto
-------------------------------------------------
By execution of this Counterpart Signature Page and upon
acknowledgment by IPI Fundraising, Inc.; BF Acquisition
Group III, Inc.; XxxxxxxxxxxXxxxxx.xxx, Inc.; and Imprints
Plus, Inc.; the undersigned agrees to become a party to
and be bound by the terms of the Merger Agreement, and the
undersigned shall be deemed a "Stockholder" under the Merger
Agreement.
[Individuals] [Entities]
_______________________________ _______________________________
By:____________________________
Name: _________________________ Name:__________________________
Title:_________________________
Date:__________________________
Date:__________________________
ACKNOWLEDGMENT:
---------------
IPI Fundraising, Inc.; BF Acquisition Group III, Inc.;
XxxxxxxxxxxXxxxxx.xxx, Inc.; and Imprints Plus, Inc.;
hereby acknowledges execution of this Counterpart
Signature Page by the above Shareholder(s).
IPI FUNDRAISING, INC. BF ACQUISITION GROUP III, INC.
By:____________________________ By:____________________________
Xxxxxx XxXxxxxxx, President Xxxxxx XxXxxxxxx, President
XXXXXXXXXXXXXXXXX.XXX, INC. IMPRINTS PLUS, INC.
By:____________________________ By:____________________________
Xxxxxx XxXxxxxxx, President Xxxxxx XxXxxxxxx, President
22
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Schedule 2.1(e)
---------------
Imprints Plus Options
Employees Options vest 25% every 12 months
beginning May 1, 2005
@$0.50
------
Xxxxxx XxXxxxxxx 100,000
Xxxxxxx Xxxxxxxx 200,000
Xxxxxx X. Xxxxxx 160,000
Xxxxxxxx Xxxxxxxx 16,000
Xxxxxxxxx Xxxxxxxx 16,000
Xxxxxx X. Xxxxxxxx 16,000
Xxxx X. Xxxxxx 32,000
Xxxxx XxXxxxxx 16,000
Xxxxx XxXxxxxx 16,000
Xxxxx Xxxxx 16,000
Xxxxxx X. Xxxxx 16,000
Xxxxxx X. Xxxx 28,000
Xxxxxx X. Xxxxxxx 50,000
Xxxxxxx X. Xxxxxxxx 50,000
-------
Total 732,000
@$1.00
------
Xxxxx Xxxxxx 40,000
Xxxxxxx Xxxxx 40,000
Xxxxxx Xxxxx 40,000
-------
Total 120,000
23
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Exhibit A
---------
Stockholders
Imprints Plus Key Stockholders
------------------------------
XxXxxxxxx, Xxxxxx X.
XxXxxxxxx, Xxxxx
Xxxxxx, Xxxxxx X.
Xxxxxxxx, Xxxxxxx
Xxxxxxxx, Xxxxxxx X.
Xxxxxxx, Xxxxxx X.
BF Acquisition Group Key Stockholders
-------------------------------------
XxXxxxxxx Xxxxxx P.
XxXxxxxxx, Xxxxx
Xxxxxxx, Xxxxxxx R
FundraisingDirect Key Stockholders
----------------------------------
BF Acquisition Group III, Inc.
Significant Stockholders
------------------------
XxXxxxxx, Xxxxxx BF Acquisition Group IV, Inc
Four Mile Partnership I Xxxxxxxx, Xxxxxxxx XX
Xxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxxx
Xxxxxxxx, Xxxxxxx Xxxxxx, Xxx, Xx.
Xxxxxx, Xxxxxxx F Xxxxxx, Xxxxxxx: Xxx Xxxxxx c/f
Xxxxx, Xxxxxxx X & Xxxxx X Xxxxxx, Xxxxx: Xxx Xxxxxx c/f
Xxxxxx, Xxxxx X & Xxxxxxx X Xxxxxx, Xxxxxxx
Xxxxx, Xxxxxxx Xxxxxx Holdings, Inc
Stella, Xxxxxx X XxXxxxxxx, Xxxxxx
Xxxxxx, Xxxxxx XxXxxxxxx, Xxxxx
Xxxxxxxxxxx, Xxxxxx XxXxxxxxx, Xxxxxxx
Thirgen LLC XxXxxxxxx, Xxxxxx X.
Urban, Xxxxxxx Xxxxxxx, Xxxxx
Xxxxxxx, Xxxxxxx Xxxxxxx, Xxxxx
Xxxxxxxxxxx, Xxxxxx Harpoon Capital
Xxxxxxx, Xxxxxxxxxxx Imirage, Inc
Pack, Xxxx / Xxxx Insight Capital, Inc
Xxxxxxxx, Xxxxxxx Liberator Holdings
Xxxxxxxx, Xxxxxxx Lynden Capital
Xxxxx, Xxxxxx XxXxxx Associates, LLC
Xxxxxx, Xxxx Xxxxxxx, Xxxxx
Zenith Holdings Corporation Orga, Xxx
Xxxxxxx, Xxxxxxx X. Xxxxxxxx, A: Xxx Xxxxxx c/f
Xxxx, Xxxxx X. Universal Capital Management
Xxxxxxx, Xxxxxx X. Xxxxxxxxxx Partners, Inc
Nortia Capital Partners, Inc. Wilmington Property Mgmt
BAMF Enterprises, Inc. & Acquisition
24
A-24
Exhibit B
---------
3
PLAN OF MERGER
Merger between BF Acquisition Group III, Inc., a Florida
corporation ("BF Acquisition Group"); XxxxxxxxxxxXxxxxx.xxx,
Inc., a Delaware Corporation ("FundraisingDirect"); Imprints
Plus, Inc., a Delaware corporation ("Imprints Plus"); and IPI
Fundraising, Inc., a Delaware corporation (the "Surviving
Corporation"). BF Acquisition Group, FundraisingDirect and
Imprints Plus shall collectively be referred to as the
"Disappearing Corporations" or each a "Disappearing Corporation."
Collectively all of the Disappearing Corporations and the
Surviving Corporation are the "Constituent Corporations". This
Merger is being effected pursuant to this Plan of Merger ("Plan")
in accordance with the provisions of the Delaware General
Corporation Law (the "DGCL") and the Florida Business Corporation
Act (the "FBCA").
1. Certificate of Incorporation and Bylaws. The
---------------------------------------
Certificate of Incorporation of Surviving Corporation in effect
immediately before the Effective Date of the Merger (the
"Effective Date" or the "Effective Time") shall, without any
changes, be the Certificate of Incorporation of the Surviving
Corporation from and after the Effective Date until further
amended as permitted by law. The Bylaws of the Surviving
Corporation as in effect immediately prior to the Effective Date
shall be the Bylaws of the Surviving Corporation.
2. Effect of the Merger on Capital Stock. At the Effective
-------------------------------------
Time, by virtue of the Merger and without any action on the part
of the holder of any shares of the capital stock of any of the
Constituent Corporations:
(a) Cancellation of Capital Stock of Surviving Corporation.
------------------------------------------------------
Each issued and outstanding share of the capital stock of
Surviving Corporation issued prior to the Effective Time shall be
canceled and retired and shall cease to exist and no stock of
Surviving Corporation or other consideration shall be delivered
in exchange therefore.
(b) Cancellation of BF Acquisition Group-Owned
------------------------------------------
FundraisingDirect Common Stock. Any shares of FundraisingDirect
------------------------------
common stock that are owned by BF Acquisition Group shall be
canceled and retired and shall cease to exist and no stock of
Surviving Corporation or other consideration shall be delivered
in exchange therefore.
(c) Conversion of Stock. Each issued and outstanding share
-------------------
(other than any dissenting shares) of BF Acquisition Group series
A preferred stock, BF Acquisition Group common stock,
FundraisingDirect common stock (other than as provided in Section
2(b) above), and Imprints Plus Common Stock shall be converted
into the right to receive the applicable Merger Consideration (as
described in Section 2(d) below), and BF Acquisition Group,
FundraisingDirect and Imprints Plus shall automatically disappear
into the Surviving Corporation, and each holder of a certificate
representing any Disappearing Company's shares shall cease to
have any rights with respect thereto, except the right to receive
the Merger Consideration.
1
A-25
(d) Merger Consideration. The aggregate maximum
--------------------
consideration payable by the Surviving Corporation in connection
with the Merger (the "Merger Consideration") will be a maximum of
ten million sixty four thousand six hundred twenty eight
(10,064,628) shares of the Surviving Corporation's common stock,
par value $.001 ("Surviving Corporation Common Stock") and
3,000,000 shares of the Surviving Corporation's series A
preferred stock, par value $.50 ("Surviving Corporation Preferred
Stock"). The holders of (i) BF Acquisition Group series A
preferred stock shall be entitled to receive in exchange for each
share of BF Acquisition Group series A preferred stock one (1)
share of the Surviving Corporation Preferred Stock; (ii) BF
Acquisition Group common stock shall be entitled to receive in
exchange for each share of BF Acquisition Group common stock one
(1) share of the Surviving Corporation Common Stock; (iii)
FundraisingDirect common stock shall be entitled to receive in
exchange for each share of FundraisingDirect common stock one
hundred (100) shares of the Surviving Corporation Common Stock;
and (iv) Imprints Plus common stock shall be entitled to receive
in exchange for each share of Imprints Plus common stock one (1)
share of the Surviving Corporation Common Stock.
(e) Imprints Plus Stock Options. At the Effective Time, all
---------------------------
then outstanding options, whether vested or unvested, ("Imprints
Plus Options") to purchase Imprints Plus common stock issued
under Imprints Plus's 2004 Stock Option Plan (the "Imprints Plus
Option Plan") or otherwise that by their terms survive the
Closing, will be assumed by Surviving Corporation in accordance
with the Agreement and Plan of Merger.
3. Satisfaction of Rights of Surviving Corporation
-----------------------------------------------
Shareholders. All shares of Surviving Corporation's stock into
------------
which each Disappearing Corporation stock shall have been
converted and become exchangeable for under this Plan shall be
deemed to have been paid in full satisfaction of such exchanged
shares.
4. Fractional Shares. No fractional shares of the
-----------------
Surviving Corporation will be issued as a result of the Merger.
Fractional shares shall be rounded up to the nearest whole share,
and any stockholder of the Surviving Corporation who would
otherwise be entitled to a fractional share of the Surviving
Corporation's Common Stock pursuant to this Plan will be entitled
to a whole share.
5. Effect of Merger. On the Effective Date, the separate
----------------
existence of each of BF Acquisition Group, FundraisingDirect and
Imprints Plus shall cease and each of these corporations shall be
merged with and into the Surviving Corporation. At the Effective
Time, the effect of the Merger shall be as provided in the
applicable provisions of the DGCL and FBCA. Without limiting the
generality of the foregoing, at and after the Effective Time, the
Surviving Corporation shall possess all the rights, privileges,
powers and franchises of a public as well as of a private nature,
and be subject to all the restrictions, disabilities and duties
of each of the Constituent Corporations.
The persons whose names appear below shall be appointed to
the position of the Surviving Corporation set forth next to their
name until their successors are appointed or elected and shall
qualify:
2
A-26
Xxxxxx XxXxxxxxx Director, President, Chief
Executive Officer, Secretary
Xxx Xxxxxx, Xx. Interim Chief Financial Officer
Xxxxx XxXxxxxxx V.P. Human Resources and
Administration
Xxxxxx X. Xxxxxx National Sales Director
Xxxxxxx Xxxxxxxx Operations Manager
Xxxxxxx X. Xxxxxxxx Director
Xxxxxx X. Xxxxxxx Director
6. Supplemental Action. If at any time after the Effective
-------------------
Date Surviving Corporation shall determine that any further
conveyances, agreements, documents, instruments, and assurances
or any further action is necessary or desirable to carry out the
provisions of this Plan, the appropriate officers of Surviving
Corporation or Disappearing Corporations, as the case may be,
whether past or remaining in office, shall execute and deliver,
on the request of Surviving Corporation, any and all proper
conveyances, agreements, documents, instruments, and assurances
and perform all necessary or proper acts, to vest, perfect,
confirm, or record such title thereto in Surviving Corporation,
or to otherwise carry out the provisions of this Plan.
7. Filing with the Secretary of State of the State of
--------------------------------------------------
Delaware and Florida and Effective Date. Upon the Closing, as
---------------------------------------
provided in the Agreement and Plan of Merger, of which this Plan
is a part, each Disappearing Corporation and Surviving
Corporation shall cause their respective Presidents or Vice
Presidents to execute a Certificate of Merger or Articles of
Merger, as the case may be, and upon such execution this Plan
shall be deemed incorporated by reference into the Certificate of
Merger or Articles of Merger, as applicable, as if fully set
forth in such Certificate or Articles and shall become an exhibit
to such Certificate of Merger or Articles of Merger. Thereafter,
such Certificate of Merger or Articles of Merger shall be
delivered for filing by Surviving Corporation to the Delaware
Secretary of State and the Florida Secretary of State. In
accordance with the DGCL and FBCA, the Certificate of Merger and
Articles of Merger shall specify the "Effective Date," which
shall be the filing date of the Certificate of Merger with the
Delaware Secretary of State.
8. Amendment and Waiver. Any of the terms or conditions
--------------------
of this Plan may be waived at any time by any one of the
Constituent Corporations which is, or the shareholders of which
are, entitled to the benefit thereof by action taken by the Board
of Directors of such party, or may be amended or modified in
whole or in part at any time before the vote of the shareholders
of the Constituent Corporations by an agreement in writing
executed in the same manner (but not necessarily by the same
persons), or at any time thereafter as long as such change is in
accordance with the DGCL and the FBCA.
9. Termination. At any time before the Effective Date
-----------
(whether before or after filing of the Certificate of Merger),
this Plan may be terminated and the Merger abandoned by mutual
consent of the Boards of Directors of the Constituent
Corporations, notwithstanding favorable action by the shareholders
of the respective Constituent Corporations.
3
A-27
Exhibit C-1
SALES RESTRICTION AGREEMENT
THIS SALES RESTRICTION AGREEMENT ("Agreement") is entered
into as of the 8th day of February, 2005 by and between IPI
Fundraising, Inc., a Delaware corporation (the "Company"); and
__________________ ("Stockholder").
WHEREAS, pursuant to the terms and conditions of that
certain Agreement and Plan of Merger (the "Merger Agreement")
dated February 8, 2005 between, inter alia, the Company; BF
Acquisition Group III, Inc., a Florida corporation,
XxxxxxxxxxxXxxxxx.xxx, Inc., a Delaware corporation, and Imprints
Plus, Inc., a Delaware corporation, on the "Closing Date" defined
in Section 1.2 of the Merger Agreement, the Stockholder will
acquire shares of Company common stock in exchange for his shares
of Imprints Plus, Inc. common stock.
WHEREAS, the Stockholder agrees that among other reasons, in
order to create and sustain an orderly public trading market for
the Company's common stock after the Closing Date, that it is in
the best interest of the Stockholder, the Company, and the
Company's other stockholders (the "Third Party Beneficiaries")
for the Stockholder not to transfer, sell, contract to sell,
devise, give, assign, pledge, hypothecate, distribute or grant
any option to purchase or otherwise dispose of, directly or
indirectly, his shares of Company Stock owned beneficially or
otherwise by him except pursuant to the terms of this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements contained herein, the receipt and
sufficiency of which are hereby acknowledged, the parties,
intending to be legally bound, hereby agree as follows:
1. Shares Subject to this Agreement. On the Closing Date, the
Stockholder, directly or indirectly, shall own ________________
shares of the Company's common stock, which shall be subject to
this Agreement and referred to herein as "Subject Stock".
2. Sale Restriction. The Stockholder agrees for the benefit of
himself, the Company and the Third Party Beneficiaries that he
will not transfer, sell, contract to sell, devise, give, assign,
pledge, hypothecate, distribute or grant any option to purchase
or otherwise dispose of, directly or indirectly, the Subject
Stock except pursuant to the terms of this Agreement. Any
attempted sale, transfer or other disposition in violation of
this Agreement shall be null and void. Notwithstanding the
foregoing, the Stockholder may transfer any Subject Stock by will
or intestacy, provided that any recipient of such Subject Stock
must execute an agreement stating that the recipient is receiving
or holding the Subject Stock subject to the provisions of this
Agreement.
-1-
A-28
3. Sale Periods.
3.1 Commencing on the Closing Date, and terminating thirty (30)
days after the date that a bid and an ask price for the Company's
common stock is initiated on the over-the-counter bulletin board
(or similar medium of exchange), the Stockholder shall not be
entitled to dispose of any shares of the Subject Stock.
3.2 Commencing thirty (30) days after the date that a bid and an
ask price for the Company's common stock is initiated on the over-
the-counter bulletin board (or similar medium of exchange), and
terminating eighteen (18) months thereafter, during every
calendar month, the Stockholder shall be entitled to dispose of
up to the amount of Subject Stock that is equal to 10% of the
Subject Stock held by the Stockholder on the Closing Date.
3.3 Paragraphs 3.1 and 3.2 above shall not apply to any Subject
Stock that was acquired by the Stockholder pursuant to the
Imprints Plus, Inc. Rule 504 private offerings initiated during
2004, but instead, the following shall apply to any Subject Stock
acquired by a Stockholder pursuant to such private offerings:
Commencing on the Closing Date, and terminating eighteen (18)
months after the date that a bid and an ask price for the
Company's common stock is initiated on the over-the-counter
bulletin board (or similar medium of exchange), the Stockholder
shall be entitled to dispose of up to an aggregate of 20,000
shares of the Subject Stock every calendar month.
4. No portion of Subject Stock that was not sold in any
calendar month period, as described in paragraphs 3.2 and 3.3
above, shall be carried over into the next, or any other,
calendar month for the purpose of increasing the eligible amount
of Subject Stock that may be disposed of in any other given
calendar month. Stockholders eligible to utilize the sales
periods described in paragraph 3.3 may elect instead to be
subject to paragraphs 3.1 and 3.2, but such Stockholders may not
combine paragraphs 3.1 and 3.2 with paragraph 3.3 for the purpose
of increasing the eligible amount of Subject Stock that may be
disposed of by such Stockholder pursuant to this Agreement.
5. Legend/Stop Transfer Instructions. The Stockholder further
agrees that the Company may instruct its transfer agent not to
transfer the Subject Stock, may provide a copy of this Agreement
to the Company's transfer agent for the purpose of instructing
the Company's transfer agent to place a legend on the
certificates disclosing that any transfer, sale, contract for
sale, devise, gift, assignment, pledge or hypothecation of the
Subject Stock is subject to the terms of this Agreement and may
issue stop-transfer instructions to its transfer agent for the
period contemplated by this Agreement for the Subject Stock.
-2-
A-29
6. Equitable Remedy. The Stockholder agrees that any breach of
this Agreement will cause the Company and the Third Party
Beneficiaries irreparable damage for which there is no adequate
remedy at law. If there is a breach or threatened breach of this
Agreement by the Stockholder, the Stockholder agrees that the
Company shall be entitled to the issuance of an immediate
injunction without notice to restrain the breach or threatened
breach.
7. Miscellaneous.
7.1 Entire Agreement. This Agreement (including the
documents referred to herein) constitutes the entire
agreement among the parties and supersedes any prior
understandings, agreements, or representations by or
among the parties, written or oral, to the extent they
related in any way to the subject matter hereof.
7.2 Succession and Assignment. This Agreement
shall be binding upon and inure to the benefit of the
parties named herein and their respective successors,
assigns, heirs or legal representatives, as the case
may be.
7.3 Counterparts. This Agreement may be executed
in one or more counterparts, each of which shall be
deemed an original but all of which together will
constitute one and the same instrument.
7.4 Headings. The paragraph and subparagraph headings
contained in this Agreement are inserted for
convenience only and shall not affect in any way the
meaning or interpretation of this Agreement.
7.5 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of
Delaware without giving effect to any choice or
conflict of law provision or rule that would cause the
application of the laws of any jurisdiction other than
the State of Delaware.
7.6 Amendments and Waivers. No amendment of any
provision of this Agreement shall be valid unless the
same shall be in writing and signed by each of the
parties hereto. No waiver by any party of any default,
misrepresentation, or breach of warranty or covenant
hereunder, whether intentional or not, shall be deemed
to extend to any prior or subsequent default,
misrepresentation, or breach of warranty or covenant
hereunder or affect in any way any rights arising by
virtue of any prior or subsequent such occurrence.
7.7 Severability. Any term or provision of this
Agreement that is invalid or unenforceable in any
situation in any jurisdiction shall not affect the
validity or enforceability of the remaining terms and
provisions hereof or the validity or enforceability of
the offending term or provision in any other situation
or in any other jurisdiction.
-3-
A-30
7.8 Conflict of Terms. In the event of a conflict of terms
and conditions between this Agreement and any other
agreement, the terms and conditions of this Agreement
shall prevail.
7.9 General Interpretive Principles. For purposes of
this Agreement, except as otherwise expressly provided
or unless the context otherwise requires:
(a) The terms defined in this Agreement include the
plural as well as the singular, and the use of any
gender herein shall be deemed to include the other
gender;
(b) Accounting terms not otherwise defined herein have
the meanings given to them in accordance with generally
accepted accounting principles;
(c) References herein to "paragraphs", "subparagraphs"
and other subdivisions without reference to a document
are to designate paragraphs, subparagraphs and other
subdivisions of this Agreement;
(d) A reference to a subparagraph without further
reference to a paragraph is a reference to such
subparagraph as contained in the same paragraph in
which the reference appears;
(e) The words "herein", "hereof", "hereunder" and
other words of similar import refer to this Agreement
as a whole and not to any particular provision; and
(f) The term "include" or "including" shall mean
without limitation by reason of enumeration.
7.10 Incorporation of Agreements. The agreements
identified in this Agreement are incorporated herein by
reference and made a part hereof.
In Witness, the parties have duly executed this Agreement as
of the date first above written.
WITNESS: SELLING STOCKHOLDER:
____________________ ________________________
Name:_______________ Name:___________________
WITNESS: COMPANY:
____________________ By:______________________
Name:_______________ Xxxxxx X. XxXxxxxxx,
president
-4-
A-31
Exhibit C-2
SALES RESTRICTION AGREEMENT
THIS SALES RESTRICTION AGREEMENT ("Agreement") is entered
into as of the 8th day of February, 2005 by and between IPI
Fundraising, Inc., a Delaware corporation (the "Company"); and
__________________ ("Stockholder").
WHEREAS, pursuant to the terms and conditions of that
certain Agreement and Plan of Merger (the "Merger Agreement")
dated February 8, 2005 between, inter alia, the Company; BF
Acquisition Group III, Inc., a Florida corporation,
XxxxxxxxxxxXxxxxx.xxx, Inc., a Delaware corporation, and Imprints
Plus, Inc., a Delaware corporation, on the "Closing Date" defined
in Section 1.2 of the Merger Agreement, the Stockholder will
acquire shares of Company common stock in exchange for his shares
of BF Acquisition Group III, Inc. common stock.
WHEREAS, the Stockholder agrees that among other reasons, in
order to create and sustain an orderly public trading market for
the Company's common stock after the Closing Date, that it is in
the best interest of the Stockholder, the Company, and the
Company's other stockholders (the "Third Party Beneficiaries")
for the Stockholder not to transfer, sell, contract to sell,
devise, give, assign, pledge, hypothecate, distribute or grant
any option to purchase or otherwise dispose of, directly or
indirectly, his shares of Company Stock owned beneficially or
otherwise by him except pursuant to the terms of this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements contained herein, the receipt and
sufficiency of which are hereby acknowledged, the parties,
intending to be legally bound, hereby agree as follows:
1. Shares Subject to this Agreement. On the Closing Date, the
Stockholder, directly or indirectly, shall own ________________
shares of the Company's common stock, which shall be subject to
this Agreement and referred to herein as "Subject Stock".
2. Sale Restriction. The Stockholder agrees for the benefit of
himself, the Company and the Third Party Beneficiaries that he
will not transfer, sell, contract to sell, devise, give, assign,
pledge, hypothecate, distribute or grant any option to purchase
or otherwise dispose of, directly or indirectly, the Subject
Stock except pursuant to the terms of this Agreement. Any
attempted sale, transfer or other disposition in violation of
this Agreement shall be null and void. Notwithstanding the
foregoing, the Stockholder may transfer any Subject Stock by will
or intestacy, provided that any recipient of such Subject Stock
must execute an agreement stating that the recipient is receiving
or holding the Subject Stock subject to the provisions of this
Agreement.
-1-
A-31
3. Sale Periods.
3.1 Commencing on the Closing Date, and terminating thirty (30)
days after the date that a bid and an ask price for the Company's
common stock is initiated on the over-the-counter bulletin board
(or similar medium of exchange), the Stockholder shall not be
entitled to dispose of any shares of the Subject Stock.
3.2 Commencing thirty (30) days after the date that a bid and an
ask price for the Company's common stock is initiated on the over-
the-counter bulletin board (or similar medium of exchange), and
terminating eighteen (18) months thereafter, during every
calendar month, the Stockholder shall be entitled to dispose of
up to the amount of Subject Stock that is equal to 10% of the
Subject Stock held by the Stockholder on the Closing Date.
3.3 Paragraphs 3.1 and 3.2 above shall not apply to any Subject
Stock that was acquired by the Stockholder pursuant to the
Imprints Plus, Inc. Rule 504 private offerings initiated during
2004, but instead, the following shall apply to any Subject Stock
acquired by a Stockholder pursuant to such private offerings:
Commencing on the Closing Date, and terminating eighteen (18)
months after the date that a bid and an ask price for the
Company's common stock is initiated on the over-the-counter
bulletin board (or similar medium of exchange), the Stockholder
shall be entitled to dispose of up to an aggregate of 20,000
shares of the Subject Stock every calendar month.
4. No portion of Subject Stock that was not sold in any
calendar month period, as described in paragraphs 3.2 and 3.3
above, shall be carried over into the next, or any other,
calendar month for the purpose of increasing the eligible amount
of Subject Stock that may be disposed of in any other given
calendar month. Stockholders eligible to utilize the sales
periods described in paragraph 3.3 may elect instead to be
subject to paragraphs 3.1 and 3.2, but such Stockholders may not
combine paragraphs 3.1 and 3.2 with paragraph 3.3 for the purpose
of increasing the eligible amount of Subject Stock that may be
disposed of by such Stockholder pursuant to this Agreement.
5. Legend/Stop Transfer Instructions. The Stockholder further
agrees that the Company may instruct its transfer agent not to
transfer the Subject Stock, may provide a copy of this Agreement
to the Company's transfer agent for the purpose of instructing
the Company's transfer agent to place a legend on the
certificates disclosing that any transfer, sale, contract for
sale, devise, gift, assignment, pledge or hypothecation of the
Subject Stock is subject to the terms of this Agreement and may
issue stop-transfer instructions to its transfer agent for the
period contemplated by this Agreement for the Subject Stock.
-2-
A-32
6. Equitable Remedy. The Stockholder agrees that any breach of
this Agreement will cause the Company and the Third Party
Beneficiaries irreparable damage for which there is no adequate
remedy at law. If there is a breach or threatened breach of this
Agreement by the Stockholder, the Stockholder agrees that the
Company shall be entitled to the issuance of an immediate
injunction without notice to restrain the breach or threatened
breach.
7. Miscellaneous.
7.1 Entire Agreement. This Agreement (including the
documents referred to herein) constitutes the entire
agreement among the parties and supersedes any prior
understandings, agreements, or representations by or
among the parties, written or oral, to the extent they
related in any way to the subject matter hereof.
7.2 Succession and Assignment. This Agreement
shall be binding upon and inure to the benefit of the
parties named herein and their respective successors,
assigns, heirs or legal representatives, as the case
may be.
7.3 Counterparts. This Agreement may be executed
in one or more counterparts, each of which shall be
deemed an original but all of which together will
constitute one and the same instrument.
7.4 Headings. The paragraph and subparagraph headings
contained in this Agreement are inserted for
convenience only and shall not affect in any way the
meaning or interpretation of this Agreement.
7.5 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of
Delaware without giving effect to any choice or
conflict of law provision or rule that would cause the
application of the laws of any jurisdiction other than
the State of Delaware.
7.6 Amendments and Waivers. No amendment of any
provision of this Agreement shall be valid unless the
same shall be in writing and signed by each of the
parties hereto. No waiver by any party of any default,
misrepresentation, or breach of warranty or covenant
hereunder, whether intentional or not, shall be deemed
to extend to any prior or subsequent default,
misrepresentation, or breach of warranty or covenant
hereunder or affect in any way any rights arising by
virtue of any prior or subsequent such occurrence.
7.7 Severability. Any term or provision of this
Agreement that is invalid or unenforceable in any
situation in any jurisdiction shall not affect the
validity or enforceability of the remaining terms and
provisions hereof or the validity or enforceability of
the offending term or provision in any other situation
or in any other jurisdiction.
-3-
A-33
7.8 Conflict of Terms. In the event of a conflict of terms
and conditions between this Agreement and any other
agreement, the terms and conditions of this Agreement
shall prevail.
7.9 General Interpretive Principles. For purposes of
this Agreement, except as otherwise expressly provided
or unless the context otherwise requires:
(a) The terms defined in this Agreement include the
plural as well as the singular, and the use of any
gender herein shall be deemed to include the other
gender;
(b) Accounting terms not otherwise defined herein have
the meanings given to them in accordance with generally
accepted accounting principles;
(c) References herein to "paragraphs", "subparagraphs"
and other subdivisions without reference to a document
are to designate paragraphs, subparagraphs and other
subdivisions of this Agreement;
(d) A reference to a subparagraph without further
reference to a paragraph is a reference to such
subparagraph as contained in the same paragraph in
which the reference appears;
(e) The words "herein", "hereof", "hereunder" and
other words of similar import refer to this Agreement
as a whole and not to any particular provision; and
(f) The term "include" or "including" shall mean
without limitation by reason of enumeration.
7.10 Incorporation of Agreements. The agreements
identified in this Agreement are incorporated herein by
reference and made a part hereof.
In Witness, the parties have duly executed this Agreement as
of the date first above written.
WITNESS: SELLING STOCKHOLDER:
____________________ ________________________
Name:_______________ Name:___________________
WITNESS: COMPANY:
____________________ By:______________________
Name:_______________ Xxxxxx X. XxXxxxxxx,
president
-4-
A-34
Exhibit C-3
SALES RESTRICTION AGREEMENT
THIS SALES RESTRICTION AGREEMENT ("Agreement") is entered
into as of the 8th day of February, 2005 by and between IPI
Fundraising, Inc., a Delaware corporation (the "Company"); and
__________________ ("Stockholder").
WHEREAS, pursuant to the terms and conditions of that
certain Agreement and Plan of Merger (the "Merger Agreement")
dated February 8, 2005 between, inter alia, the Company; BF
Acquisition Group III, Inc., a Florida corporation,
XxxxxxxxxxxXxxxxx.xxx, Inc., a Delaware corporation, and Imprints
Plus, Inc., a Delaware corporation, on the "Closing Date" defined
in Section 1.2 of the Merger Agreement, the Stockholder will
acquire shares of Company common stock in exchange for his shares
of XxxxxxxxxxxXxxxxx.xxx, Inc. common stock.
WHEREAS, the Stockholder agrees that among other reasons, in
order to create and sustain an orderly public trading market for
the Company's common stock after the Closing Date, that it is in
the best interest of the Stockholder, the Company, and the
Company's other stockholders (the "Third Party Beneficiaries")
for the Stockholder not to transfer, sell, contract to sell,
devise, give, assign, pledge, hypothecate, distribute or grant
any option to purchase or otherwise dispose of, directly or
indirectly, his shares of Company Stock owned beneficially or
otherwise by him except pursuant to the terms of this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements contained herein, the receipt and
sufficiency of which are hereby acknowledged, the parties,
intending to be legally bound, hereby agree as follows:
1. Shares Subject to this Agreement. On the Closing Date, the
Stockholder, directly or indirectly, shall own ________________
shares of the Company's common stock, which shall be subject to
this Agreement and referred to herein as "Subject Stock".
2. Sale Restriction. The Stockholder agrees for the benefit of
himself, the Company and the Third Party Beneficiaries that he
will not transfer, sell, contract to sell, devise, give, assign,
pledge, hypothecate, distribute or grant any option to purchase
or otherwise dispose of, directly or indirectly, the Subject
Stock except pursuant to the terms of this Agreement. Any
attempted sale, transfer or other disposition in violation of
this Agreement shall be null and void. Notwithstanding the
foregoing, the Stockholder may transfer any Subject Stock by will
or intestacy, provided that any recipient of such Subject Stock
must execute an agreement stating that the recipient is receiving
or holding the Subject Stock subject to the provisions of this
Agreement.
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3. Sale Periods.
3.1 Commencing on the Closing Date, and terminating thirty (30)
days after the date that a bid and an ask price for the Company's
common stock is initiated on the over-the-counter bulletin board
(or similar medium of exchange), the Stockholder shall not be
entitled to dispose of any shares of the Subject Stock.
3.2 Commencing thirty (30) days after the date that a bid and an
ask price for the Company's common stock is initiated on the over-
the-counter bulletin board (or similar medium of exchange), and
terminating eighteen (18) months thereafter, during every
calendar month, the Stockholder shall be entitled to dispose of
up to the amount of Subject Stock that is equal to 10% of the
Subject Stock held by the Stockholder on the Closing Date.
3.3 Paragraphs 3.1 and 3.2 above shall not apply to any Subject
Stock that was acquired by the Stockholder pursuant to the
Imprints Plus, Inc. Rule 504 private offerings initiated during
2004, but instead, the following shall apply to any Subject Stock
acquired by a Stockholder pursuant to such private offerings:
Commencing on the Closing Date, and terminating eighteen (18)
months after the date that a bid and an ask price for the
Company's common stock is initiated on the over-the-counter
bulletin board (or similar medium of exchange), the Stockholder
shall be entitled to dispose of up to an aggregate of 20,000
shares of the Subject Stock every calendar month.
4. No portion of Subject Stock that was not sold in any
calendar month period, as described in paragraphs 3.2 and 3.3
above, shall be carried over into the next, or any other,
calendar month for the purpose of increasing the eligible amount
of Subject Stock that may be disposed of in any other given
calendar month. Stockholders eligible to utilize the sales
periods described in paragraph 3.3 may elect instead to be
subject to paragraphs 3.1 and 3.2, but such Stockholders may not
combine paragraphs 3.1 and 3.2 with paragraph 3.3 for the purpose
of increasing the eligible amount of Subject Stock that may be
disposed of by such Stockholder pursuant to this Agreement.
5. Legend/Stop Transfer Instructions. The Stockholder further
agrees that the Company may instruct its transfer agent not to
transfer the Subject Stock, may provide a copy of this Agreement
to the Company's transfer agent for the purpose of instructing
the Company's transfer agent to place a legend on the
certificates disclosing that any transfer, sale, contract for
sale, devise, gift, assignment, pledge or hypothecation of the
Subject Stock is subject to the terms of this Agreement and may
issue stop-transfer instructions to its transfer agent for the
period contemplated by this Agreement for the Subject Stock.
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6. Equitable Remedy. The Stockholder agrees that any breach of
this Agreement will cause the Company and the Third Party
Beneficiaries irreparable damage for which there is no adequate
remedy at law. If there is a breach or threatened breach of this
Agreement by the Stockholder, the Stockholder agrees that the
Company shall be entitled to the issuance of an immediate
injunction without notice to restrain the breach or threatened
breach.
7. Miscellaneous.
7.1 Entire Agreement. This Agreement (including the
documents referred to herein) constitutes the entire
agreement among the parties and supersedes any prior
understandings, agreements, or representations by or
among the parties, written or oral, to the extent they
related in any way to the subject matter hereof.
7.2 Succession and Assignment. This Agreement
shall be binding upon and inure to the benefit of the
parties named herein and their respective successors,
assigns, heirs or legal representatives, as the case
may be.
7.3 Counterparts. This Agreement may be executed
in one or more counterparts, each of which shall be
deemed an original but all of which together will
constitute one and the same instrument.
7.4 Headings. The paragraph and subparagraph headings
contained in this Agreement are inserted for
convenience only and shall not affect in any way the
meaning or interpretation of this Agreement.
7.5 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of
Delaware without giving effect to any choice or
conflict of law provision or rule that would cause the
application of the laws of any jurisdiction other than
the State of Delaware.
7.6 Amendments and Waivers. No amendment of any
provision of this Agreement shall be valid unless the
same shall be in writing and signed by each of the
parties hereto. No waiver by any party of any default,
misrepresentation, or breach of warranty or covenant
hereunder, whether intentional or not, shall be deemed
to extend to any prior or subsequent default,
misrepresentation, or breach of warranty or covenant
hereunder or affect in any way any rights arising by
virtue of any prior or subsequent such occurrence.
7.7 Severability. Any term or provision of this
Agreement that is invalid or unenforceable in any
situation in any jurisdiction shall not affect the
validity or enforceability of the remaining terms and
provisions hereof or the validity or enforceability of
the offending term or provision in any other situation
or in any other jurisdiction.
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A-37
7.8 Conflict of Terms. In the event of a conflict of terms
and conditions between this Agreement and any other
agreement, the terms and conditions of this Agreement
shall prevail.
7.9 General Interpretive Principles. For purposes of
this Agreement, except as otherwise expressly provided
or unless the context otherwise requires:
(a) The terms defined in this Agreement include the
plural as well as the singular, and the use of any
gender herein shall be deemed to include the other
gender;
(b) Accounting terms not otherwise defined herein have
the meanings given to them in accordance with generally
accepted accounting principles;
(c) References herein to "paragraphs", "subparagraphs"
and other subdivisions without reference to a document
are to designate paragraphs, subparagraphs and other
subdivisions of this Agreement;
(d) A reference to a subparagraph without further
reference to a paragraph is a reference to such
subparagraph as contained in the same paragraph in
which the reference appears;
(e) The words "herein", "hereof", "hereunder" and
other words of similar import refer to this Agreement
as a whole and not to any particular provision; and
(f) The term "include" or "including" shall mean
without limitation by reason of enumeration.
7.10 Incorporation of Agreements. The agreements
identified in this Agreement are incorporated herein by
reference and made a part hereof.
In Witness, the parties have duly executed this Agreement as
of the date first above written.
WITNESS: SELLING STOCKHOLDER:
____________________ ________________________
Name:_______________ Name:___________________
WITNESS: COMPANY:
____________________ By:______________________
Name:_______________ Xxxxxx X. XxXxxxxxx,
president
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Exhibit D
---------
Opinion of Xxxxxxxx Xxxx Lodge & Hutz LLP
[XXXXXXXX XXXX LODGE & HUTZ LLP LETTERHEAD]
Xxxxxxx X. Xxxxxxx
Partner
February 7, 2005
Board of Directors
IPI Fundraising, Inc.
0 Xxxx Xxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
RE: MERGER AMONG BF ACQUISITION GROUP III, INC.,
XXXXXXXXXXXXXXXXX.XXX, INC., IMPRINTS PLUS, INC.;
AND IPI FUNDRAISING, INC.
Ladies and Gentlemen:
We have been asked to render this opinion in connection with
the merger (the "Merger") among BF Acquisition Group III, Inc., a
Florida corporation ("BF Acquisition Group"); Imprints Plus, Inc., a
Delaware corporation ("Imprints Plus"); XxxxxxxxxxxXxxxxx.xxx, Inc.,
a Delaware corporation ("FundraisingDirect"); and IPI Fundraising,
Inc., a Delaware corporation ("IPI Fundraising" or the "Surviving
Corporation").
BF Acquisition Group, Imprints Plus and FundraisingDirect are
referred to collectively as the "Disappearing Corporations," each a
"Disappearing Corporation." The four corporation are collectively
referred to herein as the "Constituent Corporations," each a
"Constituent Corporation."
Under the Merger, BF Acquisition Group, FundraisingDirect and
Imprints Plus are to be merged into IPI Fundraising.
In that capacity, we have examined the Entity Documents and
Merger Documents enumerated in our opinion of this date concerning
the consequences of the Merger under the Delaware General
Corporation Law or copies thereof certified or otherwise identified
to our satisfaction. We have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as
originals and the conformity to the original documents of all
documents submitted to us as copies.
We have also relied on a Certificate, executed by each of the
Constituent Corporations, representing to us that:
1. No consideration other than stock of the Constituent
Corporations is being exchanged in the merger, except
for dissenting shareholders.
A-39
February 7, 2005
Page 2
2. There is no plan or intention by any shareholder who
owns five percent or more of the stock of any of the
Constituent Corporations, and the management of each
of the Constituent Corporations, to its best
knowledge, is not aware of any plan or intention on
the part of any particular remaining shareholder or
security holder of any of the Constituent
Corporations, to exercise any dissenters' rights, as
described in the Agreement of Merger.
3. There is no plan or intention by any shareholder who
owns five percent or more of the stock of any of the
Constituent Corporations, and the management of each
of the Constituent Corporations, to its best
knowledge, is not aware of any plan or intention on
the part of any particular remaining shareholder or
security holder of any of the Constituent
Corporations, to sell, exchange, transfer by gift, or
otherwise dispose of any stock in, or securities of
the Surviving Corporation after the Merger.
4. Although the Agreement and Plan of Merger provides
for payment in cash to shareholders of the
Disappearing Corporations who exercise their
statutory right of appraisal under 8 Del. C.
Section 262, there is no reasonable likelihood that
continuing interest through stock ownership in the
Surviving Corporation on the part of the shareholders
of each Disappearing Corporation will not equal in
value, as of the effective date of the merger, at
least 50 percent of the value of all of the formerly
outstanding stock of each Disappearing Corporation as
of the merger, taking into account any sales,
redemptions and other dispositions of stock occurring
prior or subsequent to the exchange which are part of
the plan of merger.
5. The liabilities of the Disappearing Corporations
assumed by the Surviving Corporation and the
liabilities to which the transferred assets of the
Disappearing Corporations are subject were incurred
by the Disappearing Corporations in the ordinary
course of business.
6. Following the Merger, the Surviving Corporation will
continue the business heretofore conducted by
Imprints Plus and FundraisingDirect.
7. Each party to the Merger will pay its respective
expenses incurred in connection with the Merger,
except that the Surviving Corporation will assume (by
operation of law) and pay each Disappearing
Corporations's expenses not paid before the Merger
occurs.
8. There is no intercorporate indebtedness existing
among the Constituent Corporations that was issued or
acquired or will be settled at a discount.
A-40
February 7, 2005
Page 3
9. There is no plan or intention to liquidate the
Surviving Corporation, to merge it with any other
corporation or other entity (except pursuant to the
Merger), or to sell or otherwise dispose of the
assets of any of the Constituent Corporations after
the Merger, except in the ordinary course of business.
10. None of the Constituent Corporations are investment
companies as defined in section 368(a)(2)(F)(iii) and
(iv) of the Internal Revenue Code (the "Code").
11. No party to the Merger is under the jurisdiction of a
court in a Title 11 or similar case within the
meaning of section 368(a)(3)(A) of the Code.
12. The fair market value of the assets of each
Disappearing Corporation will equal or exceed the sum
of its liabilities assumed by the Surviving
Corporation plus the amount of liabilities, if any,
to which such assets are subject.
13. No debt that will be assumed by the Surviving
Corporation is personally guaranteed by any
shareholder of any of the Disappearing Corporations.
14. Before the Merger, the Surviving Corporation owned no
shares of any of the Disappearing Corporations.
15. None of the Disappearing Corporations accumulated its
receivables nor made extraordinary payment of its
payables in anticipation of the Merger.
16. There has been no redemption of stock in any of the
Disappearing Corporations in the year before the Merger.
We have relied on resolutions of the Constituent Corporations
as to the due execution and delivery of all such Documents and on
Certificates with other representations made by the Constituent
Corporations concerning the Merger.
Capitalized items not otherwise defined herein shall have the
same meaning as ascribed in the documents described thereof.
For purposes of this opinion, we have not reviewed any
documents other than the documents listed above and we have not
reviewed any document that is referred to in or incorporated by
reference into any document reviewed by us. We have assumed that
there exists no provision in any document that we have not reviewed
that is inconsistent with the aforementioned documents and the
actions stated therein. We have conducted no independent factual
investigation of our own but rather have relied solely upon the
foregoing documents, and the statements and information set forth
therein, all of which we have assumed to be true, complete and
accurate in all material respects.
A-41
February 7, 2005
Page 4
We have undertaken no inquiry to verify the accuracy or
completeness of the representations in any certificates. We have
assumed that the Certificate of Merger will be duly recorded in the
Office of the Secretary of State of Delaware and that all applicable
fees imposed in connection therewith will be paid.
We have not been engaged or undertaken to verify or review
the execution, acknowledgment or delivery of the Documents.
With respect to all documents, examined by us, we have
assumed that (a) all documents examined by us are executed by all
necessary parties and all signatures on documents examined by us are
genuine, (b) all documents submitted to us as originals are
authentic and (c) all documents submitted to us as copies conform
with the originals of those documents.
We have assumed: (a) the due organization, due formation or
due creation, as the case may be, and valid existence in good
standing of each party to the documents examined by us under the
laws of the jurisdiction governing its organization, formation or
creation, (b) the legal capacity of natural persons who are
signatories to the documents examined by us, (c) that each of the
parties to the documents examined by us has the power and authority
to execute and deliver, and to perform its obligations under, such
documents, (d) the due authorization, execution and delivery by all
parties thereto of all documents examined by us, and (e) that each
of the documents examined by us constitutes a valid and binding
agreement of the parties thereto, and is enforceable against the
parties thereto, in accordance with its terms.
Based on our examination of the Documents and such
investigation as we have deemed necessary, and subject to the
qualifications and exceptions herein contained, we are of the
opinion that:
A. The Merger will qualify as a "merger" under the
Internal Revenue Code;
B. Each of the Constituent Corporations will be a party
to the Merger; and
C. The shareholders of Imprints Plus, BF Acquisition
Group and FundraisingDirect will not recognize any gain or loss on
the exchange of their respective shares of Imprints Plus, BF
Acquisition Group and FundraisingDirect common stock and preferred
stock (as applicable) for IPI Fundraising common stock and preferred
stock (as applicable) in the merger .
In addition to any exceptions, qualifications and assumptions
noted hereinabove, the foregoing opinions are subject to the
following exceptions, qualifications and assumptions:
A. The opinions expressed herein are limited to the
laws, rules and regulations of the Internal Revenue Code of the
United States of America and of the State of Delaware (excluding the
securities and blue sky laws of the State of Delaware) now in
effect, and we have not considered and express no opinion on any
other laws, rules or regulations.
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February 7, 2005
Page 5
B. We have assumed that all signatures of or on behalf
of parties other than the Company on documents and instruments
examined by us are genuine, all documents submitted to us as
originals are authentic and all documents submitted to us as copies
conform with the originals, which assumptions we have not
independently verified.
C. The opinions expressed in this letter are rendered as
of the date hereof and we express no opinion as to circumstances or
events or changes of the law that may occur subsequent to such date.
We undertake no responsibility to advise you of changes in law or
fact hereafter occurring.
The opinions expressed in this letter are given solely for
the benefit of the addressee, and may be used in connection with the
S-4 registration statement to filed on behalf of IPI Fundraising.
The opinions expressed in this letter may not be relied upon, in
whole or in part, by any other person, firm or company for any
purpose, without our prior written consent.
Very truly yours,
/S/ Xxxxxxxx Xxxx Lodge & Hutz, LLP
XXXXXXXX XXXX LODGE & HUTZ LLP
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