EXHIBIT 2.1
AGREEMENT
This AGREEMENT (this "Agreement") is entered into as of August 8, 2001,
by and among IVG CORP., a Delaware corporation, and XXXXXX XXXXXX ("Xxxxxx") and
XXXXXX XXXX ("Xxxx" and together with Xxxxxx, the "Shareholders"). As used
herein, "IVG" shall refer to both IVG Corp., a Delaware corporation, and
Internet Venture Group, Inc., a Florida corporation and the predecessor entity
to IVG Corp.
RECITALS
WHEREAS, on March 30, 2001, the Shareholders, IVG and certain other
parties entered into that certain Amended and Restated Asset Purchase Agreement
and Agreement and Plan of Merger (the "Merger Agreement"), whereby the
Shareholders, as the holders of 100% of the issued and outstanding common stock
of SES-Corp., Inc., a Delaware corporation ("SES-Corp"), agreed to cause the
merger of SES-Corp. with and into a subsidiary of IVG (the "Merger");
WHEREAS, pursuant to the Merger, the Shareholders received shares of
IVG common stock (the "Merger Shares"), of which an aggregate of 10 million
shares (the "Escrow Shares") were to be subject to an escrow agreement, and IVG
became the holder of 100% of the issued and outstanding common stock of
SES-Corp. (the "SES Shares");
WHEREAS, the Shareholders and IVG desire to exchange the Escrow Shares
for the SES Shares (the "Exchange");
WHEREAS, the Shareholders and IVG hereby acknowledge and agree that the
Exchange will result in the Shareholders holding 100% of the SES Shares and IVG
holding 100% of the Escrow Shares;
WHEREAS, the Shareholders desire to relinquish all officer and director
positions with IVG and its subsidiaries;
WHEREAS, as contemplated by the Merger Agreement, the Shareholders were
each issued shares of common stock of SES Professional Services, Inc. ("SES
Pro");
WHEREAS, the Shareholders and IVG mutually agree that in consideration
of the Exchange, each of the Shareholders shall return to IVG the shares of SES
Pro such Shareholder received pursuant to the Merger Agreement or otherwise (the
"SES Pro Shares");
NOW THEREFORE, in consideration of the premises and the mutual promises
herein made and of the mutual benefits to be derived hereby, the parties hereto
agree as follows:
ARTICLE I. SHARE EXCHANGE
SECTION 1.01 SHARE EXCHANGE. On the terms and subject to the conditions
contained in this Agreement, IVG hereby sells, assigns, transfers, conveys and
delivers to the Shareholders, and the Shareholders hereby purchase, acquire and
accept delivery from IVG of, all of the issued and outstanding SES Shares, and
the Shareholders hereby sell, assign, transfer, convey and deliver to IVG and
IVG hereby purchases, acquires and accepts delivery from the Shareholders of,
all of the Escrow Shares, of which Xxxx holds 50% and Xxxxxx holds 50%. Each of
Xxxxxx and Xxxx hereby releases all claim to the Escrow Shares.
SECTION 1.02 DELIVERY OF SES SHARES. IVG hereby delivers: (a) a stock
certificate, complete with stock powers, transferring 50% of the SES Shares to
Xxxxxx; and (b) a stock certificate, complete with stock powers, transferring
50% of the SES Shares to Xxxx.
SECTION 1.03 100% OF THE SES SHARES. IVG hereby represents and warrants
to the Shareholders that the SES Shares represent 100% of the shares of SES-Corp
issued to IVG in connection with the Merger. Upon completion of the Exchange,
IVG shall not have any right, title or interest in any shares of capital stock,
or any right to purchase or receive capital stock of, SES-Corp.
SECTION 1.04 100% OF THE ESCROW SHARES. The Shareholders hereby rely
and accept the representation of IVG that the Escrow Shares represent
approximate 85% of the shares of IVG issued to the Shareholders in connection
with the Merger. Upon completion of the Exchange, neither Xxxx nor Xxxxxx shall
have any right, title or interest in any shares of capital stock, or any right
to purchase or receive capital stock of, IVG, except for that portion of the
Merger Shares (909,631 Shares held by Xxxxxx Xxxx) that are not Escrow Shares,
and for shares either of them may have purchased in open market transactions.
The only restrictions on the 909,631 Shares held by Xxxxxx Xxxx are those
restrictions designated by Rule 144 of the Internal Revenue Code.
Section 1.05 OTHER CONSIDERATION. The Shareholders waive any rights to,
and acknowledge they have no right to receive, Earn-out Shares, as such term is
defined in the Merger Agreement.
ARTICLE II. SES PRO SHARES
Section 2.01 PURCHASE OF SES PRO SHARES. For $5 each and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, each of the Shareholders hereby sells, assigns, transfers, conveys
and delivers to IVG, and IVG hereby purchases, acquires and accepts delivery
from each of the Shareholders of, 100% of their respective SES Pro Shares.
Section 2.02 XXXX'X SES PRO SHARES. Xxxx hereby delivers a stock
certificate, complete with stock powers, transferring ownership of his SES Pro
Shares to IVG, which represents 100% of the SES Pro Shares owned by Xxxx. In
transferring his SES Pro Shares to IVG, Xxxx hereby acknowledges and agrees that
he shall have no further right, title or interest in the SES Pro Shares or SES
Pro in the future. Xxxx further acknowledges and agrees that any rights to
receive shares in SES Pro in the future pursuant to the Merger Agreement or
otherwise are hereby terminated. Xxxx waives any rights he may have regarding
SES Pro under the Merger Agreement or otherwise.
Section 2.03 XXXXXX'X SES PRO SHARES. Xxxxxx hereby delivers a stock
certificate, complete with stock powers transferring ownership of his SES Pro
Shares to IVG, which represents 100% of the SES Pro Shares owned by Xxxxxx. In
transferring his SES Pro Shares to IVG, Xxxxxx hereby acknowledges and agrees
that he shall have no further right, title or interest in the SES Pro Shares or
SES Pro, and any additional rights to receive shares in SES Pro pursuant to the
Merger Agreement or otherwise are hereby terminated. Xxxxxx waives any rights he
may have regarding SES Pro under the Merger Agreement or otherwise.
ARTICLE III. RESIGNATIONS
SECTION 3.01 RESIGNATION OF XXXX. By his execution of this Agreement,
Xxxx hereby resigns from the Board of Directors of IVG and any of its
subsidiaries and any other positions with IVG and any of its subsidiaries,
whether as an officer or on an employment or consulting basis, effective
immediately. This provision does not apply to any position that Xxxx may
presently hold with SES-Corp. or any of its subsidiaries.
SECTION 3.02 RESIGNATION OF XXXXXX. By his execution of this Agreement,
Xxxxxx hereby resigns from the Board of Directors of IVG and any of its
subsidiaries and any other positions with IVG and any of its subsidiaries,
whether as an officer or on an employment or consulting basis, effective
immediately. This provision does not apply to any position that Xxxxxx may
presently hold with SES-Corp. or any of its subsidiaries.
ARTICLE IV. MISCELLANEOUS PROVISIONS
SECTION 4.01 GOVERNING LAW. The laws of the State of Delaware (without
regard to its choice of law principles that might apply the law of another
jurisdiction) will govern the validity of this Agreement, the construction of
its terms, and the interpretation and enforcement of the rights and duties of
the parties.
SECTION 4.02 SEVERABILITY. If any provision of this Agreement, or the
application thereof, is for any reason held to any extent to be invalid or
unenforceable, then the remainder of this Agreement and the application of such
provisions to other persons or circumstances will be interpreted so as
reasonably to effect the intent of the parties. The parties further agree to
replace such unenforceable provision of this Agreement with valid and
enforceable provisions that will achieve, to the extent possible, the economic,
business and other purposes of the invalid provision.
SECTION 4.03 COUNTERPARTS. This Agreement may be executed in
counterparts, each of which will be an original as regards any party whose
signature appears thereon and all of which together will constitute one and the
same instrument. This Agreement will become binding when one or more
counterparts hereof, individually or taken together, bear the signatures of all
parties reflected hereon as signatories.
SECTION 4.04 FURTHER ASSURANCES. Each party agrees to cooperate fully
with the other party and to execute such further instruments, documents and
agreements and to give such further written assurances as may be reasonably
requested by the other party to evidence and reflect the transactions provided
for herein and to carry into effect the intent of this Agreement, so long as
further assurances are not inconsistent with this Agreement.
Section 4.05 VENUE. The proper venue for any action filed by IVG as
against either Shareholder, Xxxx or Xxxxxx, or both of them, or by the
Shareholders, or either of them, as against IVG shall only be in the State of
Michigan, federal or state court as may be appropriate. The parties hereby
irrevocably agree, as a further part of their mutual consideration and support
of this Agreement, that this venue shall not be challenged by IVG for removal to
either Delaware and/or Texas, the previous provisions of the Merger Agreement
here notwithstanding. Any attempt by IVG to change venue from Michigan shall
result in this Agreement having been breached by IVG and IVG having been
declared in default hereunder to the Shareholders, or either of them. As a
result of such default, IVG will be obligated to the Shareholders, or either of
them, for all of their costs, expenses and actual attorney fees incurred in this
defense of, or in the prosecution of the Shareholders rights, remedies and/or
defenses as against IVG hereunder and as allowed in law and/or equity by the
court of competent jurisdiction from the date of inception of said case until
its final (trial and/or appellate) determination. The costs, expenses and
attorney fees may be taxable as against IVG intermittently as the Shareholders,
or either of them, shall so petition the court for interim payment thereof and
as allowed by said court.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first written above.
IVG CORP.
By: /s/ Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: CEO
SHAREHOLDERS:
/s/ Xxxxxx Xxxxxx
XXXXXX XXXXXX
/s/ Xxxxxx Xxxx
XXXXXX XXXX
