[EXHIBIT 2.1]
Execution Copy
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AGREEMENT AND PLAN OF REORGANIZATION
This Agreement and Plan of Reorganization (the "Agreement")
is made as of March 31, 2004 by and among American Apparel and
Accessories, Inc., an Arkansas corporation ("A3") and Ram Venture
Holdings Corp., a Florida corporation ("RAM").
RECITALS
Whereas, the parties desire that A3 be merged into RAM (the
"Merger"), with RAM being the surviving corporation, all as more
particularly set forth herein;
Whereas, the board of directors of each of the parties to
this Agreement has determined that the proposed transaction is
advisable and for the general welfare and advantage of their
respective corporations and shareholders;
Whereas, the parties intend that the terms and conditions of
this Agreement comply with Section 368(a)(1)(B) of the Internal
Revenue Code of 1986, as amended (the "Code"), and the
regulations corresponding thereto, such that this reorganization
shall qualify as a tax-free "reorganization";
Whereas, the parties intend that as a result of this
Agreement, no gain or loss shall be recognized by RAM, A3, the
shareholders of RAM, or the shareholders of A3 (the "A3
Shareholders") upon the transfer of A3's shares held by the A3
Shareholders in exchange for RAM's shares and the basis for RAM's
shares shall be the same as A3's shares exchanged therefore; and,
Whereas, the Merger shall be consummated pursuant to and in
accordance with the terms and conditions set forth in this
Agreement, and RAM shall acquire 100% of A3's issued and
outstanding shares and options thereto.
Now, therefore, in consideration of the premises and the
mutual covenants set forth in this Agreement, the parties agree
as follows:
SECTION 1
Plan of Merger
1.1 Plan of Merger. The Plan of Merger set forth on
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Schedule 1.1 of the disclosure schedule hereto (the "Disclosure
Schedule"), is incorporated by reference.
SECTION 2
Closing Dates: Delivery
2.1 Closing Dates. The closing of the transactions
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contemplated hereunder shall take place within ten (10) days
after A3 obtains shareholder approval to close the transactions
contemplated hereunder (the "Closing Date"), and shall be held at
the offices of A3 (the "Closing") or at such other time and place
upon which RAM and A3 shall agree.
SECTION 3
Representations and Warranties of RAM
3.1 Organization and Standing; Articles and By-Laws. RAM is
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a corporation duly organized and existing under, and by virtue
of, the laws of the State of Florida and is in good standing
under such laws. RAM has the requisite corporate power and
authority to own and operate its properties and assets, and to
carry on its business as it is presently conducted, and is
presently qualified to do business as a foreign corporation in
any jurisdiction where its activities or business so require,
except those jurisdictions where the failure to be so qualified
will not have a materially adverse affect on RAM's business as
now conducted or as now proposed to be conducted. RAM has
furnished to A3 certified copies of its Articles of
Incorporation, By-Laws, and a certified copy of a certificate of
good standing or its equivalent from the Secretary of State of
Florida. Said copies are true, correct and complete and contain
all amendments through the Closing Date.
3.2 Corporate Power. RAM will have at the Closing Date all
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requisite legal and corporate power and authority to execute and
deliver this Agreement, to issue and exchange the shares
hereunder and perform its obligations under the terms of this
Agreement.
3.3 Subsidiaries. At Closing RAM will have no subsidiaries
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or affiliated companies and will not otherwise own or control,
directly or indirectly, any equity interest in any corporation,
association or business entity.
3.4 Capitalization. The authorized capital stock of RAM
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consists of 25122,000,000 shares of common stock, par value
$.00001 per share of which 1,500,000 shares will be issued and
outstanding prior to the Closing Date. RAM's initial public offer
and sale of its stock met the prospectus delivery requirement of
the Securities Act of 1933, as amended (the "Securities Act").
All of the issued and outstanding shares of RAM have been duly
authorized and validly issued, and are fully paid and
nonassessable. All outstanding shares of RAM were issued in
compliance with applicable federal and state securities laws.
There are no options, warrants or other rights to purchase any of
RAM's capital stock. The holders of record of the presently
issued and outstanding shares of common stock are set forth on
the Certified Shareholder's List on Schedule 3.4. There are no
options, warrants or other rights to purchase any of RAM's
authorized and unissued capital stock.
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3.5 Authorization. All corporate action on the part of RAM,
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its directors, and shareholders necessary for the authorization,
execution, delivery and performance of this Agreement by RAM, the
authorization, sale, issuance and delivery of the RAM common
stock to the A3 Shareholders (the "Shares") and the performance
of all RAM's obligations hereunder will be taken prior to the
Closing. This Agreement, when executed and delivered by RAM, will
be enforceable in accordance with its terms. The Shares to be
delivered to the A3 Shareholders, when issued in compliance with
the provisions of this Agreement, will be validly issued, fully
paid and nonassessable; and free of any liens or encumbrances;
provided, however, that the Shares issued to the A3 Shareholders
will be unregistered, "legend" securities subject to all of the
restrictions on transfer under state and/or federal securities
laws. The shares will not be subject to any preemptive rights or
rights of first refusal.
3.6 Financial Statements; Absence of Assets, Operations.
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The financial statements of RAM contained within the most recent
filings with the Securities and Exchange Commission (the
"Financial Statements") are complete and correct in all material
respects and have been prepared in accordance with generally
accepted accounting principles applied on a consistent basis
throughout the periods indicated. The Financial Statements
accurately set out and describe the financial condition and
operating results of RAM as of the dates, and for the periods,
indicated therein. At Closing, RAM will have no material assets
or business operations. RAM's Annual Report on Form 10-K will be
filed timely (i.e. within the Form 12b-25 extension period ending
April 16, 2004).
3.7 Absence of Changes. Except for the transactions
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specifically contemplated by this Agreement and as set forth on
Schedule 3.7, from the date of RAM's most recent quarterly report
on Form 10Q, filed with the Securities and Exchange Commission on
November 13, 2003 until the date hereof: (a) RAM has not entered
into any transaction or agreement; (b) there has been no
materially adverse change in the condition (financial or
otherwise), business, property, assets or liabilities of RAM, and
(c) to the best knowledge of RAM, there has been no other event
or condition of any character pertaining to RAM which would
materially and adversely affect the assets or business of RAM.
3.8 Material Operations, Asset and Liabilities. At Closing,
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RAM will have no material assets, commercial operations,
liabilities or obligations, absolute or contingent (individually
or in the aggregate).
3.9 Compliance with Other Instruments, None Burdensome, etc.
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RAM is not in violation of any term of its Articles of
Incorporation or By-Laws or, in any material respect, of any term
or provision of any material mortgage, indebtedness, indenture,
contract, agreement, instrument, judgment or decree, and to the
best of its knowledge is not in violation of any order, statute,
rule or regulation applicable to RAM. The execution, delivery and
performance of, and compliance with, this Agreement has not
resulted and will not result in any violation of, or conflict
with, or constitute a default under, RAM's Articles or By-laws or
any of its agreements or result in the creation of, any mortgage,
pledge, lien, encumbrance or charge against RAM or its future
properties or assets; and, there is now no such violation or
default which may materially and adversely affect the future
business of RAM or any of its future properties or assets.
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3.10 Litigation, etc. There are no pending or threatened
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actions, suits, proceedings or investigations by any agency of
any state, the federal government, or individual or entity, nor,
to the best of RAM's knowledge, is there any reasonable basis
therefor.
3.11 Employees. RAM has two (2) employees.
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3.12 Certain Transactions. At Closing, RAM will not be
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indebted, directly or indirectly, to any of its officers,
directors or shareholders or to their respective spouses or
children, in any amount whatsoever; none of said officers,
directors or, to the best of RAM's knowledge, shareholders, or
any members of their immediate families, will be indebted to RAM.
RAM is not guarantor nor indemnitor of any indebtedness of any
other person, firm or corporation.
3.13 Material Contracts and Obligations. RAM is not a party
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to nor bound by any agreements, contracts, indebtedness,
liabilities and other obligations, except as listed on Schedule
3.13. Copies of such agreements and contracts and documentation
evidencing such liabilities and other obligations have been made
available for inspection by A3 and its counsel. All of such
agreements and contracts are valid, binding and in full force and
effect in all material respects, assuming due execution by the
other parties to such agreements and contracts.
3.14 Governmental Consent, etc. No consent, approval or
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authorization of (or designation, declaration of filing with) any
governmental authority on the part of RAM is required in
connection with the valid execution and delivery of this
Agreement, or the offer, sale or issuance of the common stock, or
the consummation of any other transaction contemplated hereby,
except (a) filing of the Certificate or Articles of Merger in the
office of the Secretary of State of Arkansas and Florida, and (b)
qualification (or taking such action as may be necessary to
secure an exemption from qualification, if available), or notice
of the exchange and merger offer under applicable state
corporation or securities laws, which filings and qualifications,
if required, will be accomplished in a timely manner.
3.15 Offering. The offer and issuance of RAM's Shares in
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exchange for all of A3's shares held by the A3 Shareholders in
conformity with the terms of this Agreement constitutes a
transaction exempt from the registration requirements of Section
5 of the Securities Act, and rules promulgated thereunder. A3
shall file Form D as appropriate, post-closing.
3.16 Brokers or Finders; Other Offers. Except as set forth
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on Schedule 3.16, RAM has not incurred, and will not incur,
directly or indirectly, as a result of any action taken by it,
any liability for brokerage or finders' fees or agents'
commissions or any similar charges in connection with this
Agreement.
3.17 Tax Matters. RAM: (i) has timely filed all tax returns
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that are required to have been filed by it with all appropriate
federal, state, county and local governmental agencies (and all
such returns fairly reflect RAM's operations for tax purposes);
(ii) has timely paid all taxes owed by it for which it is
obligated to withhold from amounts owing to any employee
(including without limitation social security taxes), creditor or
third party (other than taxes the validity of which are being
contested in good faith by appropriate proceedings); and (iii)
has not waived any statute of limitations with respect to taxes
or agreed to any extension of time with respect to a tax
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assessment or deficiency. The assessment of any additional taxes
for periods for which returns have been filed is not expected to
exceed the recorded liability therefor, and, to the best of RAM's
knowledge, there are no material unresolved questions or claims
concerning RAM's tax liability. RAM's tax returns have not been
reviewed or audited by any federal, state, local or county taxing
authority. There is no pending dispute with any taxing authority
relating to any of said returns which, if determined adversely to
RAM, would result in the assertion by any taxing authority of any
valid deficiency in any material amount for taxes.
3.18 Minute Books. The minute book of RAM provided to A3
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contains a complete summary of all meetings of directors and
stockholders since the time of incorporation and reflects all
transactions referred to in such minutes accurately in all
material respects.
3.19 Disclosure. This Agreement, the Schedules hereto,
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and all of the RAM filings made pursuant to the Securities Act of
1933 and the Securities Exchange Act of 1934, each as amended, do
not contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
contained therein not misleading in light of the circumstances
under which they were made.
SECTION 4
Representations and Warranties of A3
4.1 Organization and Standing; Articles and By-Laws. A3 is a
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corporation duly organized and existing under, and by virtue of,
the laws of the State of Arkansas and is good standing under such
laws. A3 has the requisite corporate power and authority to own
and operate its properties and assets, and to carry on its
business as it is presently conducted, and is presently qualified
to do business as a foreign corporation in any jurisdiction,
where its activities or business so require, except where the
failure to be so qualified will not have a materially adverse
affect on A3's business as now conducted or as now proposed to be
conducted. A3 has furnished to RAM or its special counsel copies
of its Articles of Incorporation and By-Laws, as amended. Said
copies are true, correct and complete and contain all amendments
through the Closing Date.
4.2 Corporate Power. A3 will have at the Closing Date all
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requisite legal and corporate power and authority to execute and
deliver this Agreement, to issue and exchange the Shares
hereunder and perform its obligations under the terms of this
Agreement.
4.3 Subsidiaries. A3 does not own or control, directly or
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indirectly, any equity interest in any other corporation,
association or business entity except as set forth on Schedule
4.3.
4.4 Capitalization. The authorized capital stock of A3 is
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40 million shares of which 25 million is common stock and 15
million is preferred stock. All shares of capital stock are $.01
par value. All of the issued and outstanding A3 shares have been
duly authorized and validly issued, and are fully paid and
nonassessable. All outstanding securities of A3 were issued in
compliance with applicable federal and state securities laws. The
holders of record of the presently issued and outstanding shares
of common stock are set forth on the Certified Shareholder's List
on Schedule 4.4. There are no other outstanding options, warrants
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or other rights to purchase any of A3's authorized and unissued
capital stock except those set forth on Schedule 4.4.
4.5 Authorization. All corporate action on the part of A3,
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its directors and shareholders necessary for the authorization,
execution, delivery and performance of this Agreement by A3, the
delivery of the A3 common stock and the performance of all A3's
obligations hereunder has been taken or will be taken prior to
the Closing. This Agreement, when executed and delivered by A3,
will be enforceable in accordance with its terms. The A3 common
stock, when delivered in compliance with the provisions of this
Agreement, will be validly issued, fully paid and nonassessable;
and, the common stock will be free of any liens or encumbrances;
provided, however, that the common stock issued to the
shareholders of A3 by RAM will be subject to restrictions on
transfer under state and/or federal securities laws as set forth
herein. At Closing, the A3 common stock will not be subject to
any preemptive rights or rights of first refusal.
4.6 Financial Statements. A3 has delivered to RAM its
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audited balance sheet and statements of operations and statements
of stockholders equity as of and for the period ended March 31,
2003 and its unaudited balance sheet and statements of operations
and statements of stockholders equity as of and for the period
ended December 31, 2003 (collectively the "Financial
Statements"). The Financial Statements are complete and correct
in all material respects and have been prepared in accordance
with generally accepted accounting principles applied on a
consistent basis throughout the periods indicated, except that
they do not contain footnotes. The Financial Statements
accurately set out and describe the financial condition and
operating results of the Company as of the dates, and for the
periods, indicated therein.
4.7 Absence of Changes. Since December 31, 2003 (date of
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latest balance sheet): (a) A3 has not entered into any material
transaction; (b) there has been no materially adverse change in
the condition (financial or otherwise), business, property,
assets or liabilities of A3; and, (c) to the best knowledge of
A3, there has been no other event or condition of any character
pertaining to and materially adversely affecting the assets or
business of A3, except as set forth on Schedule 4.7.
4.8 Material Liabilities. A3 has no material liabilities or
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obligations, absolute or contingent (individually or in the
aggregate) except as set forth on Schedule 4.8.
4.9 Compliance with Other Instruments, None Burdensome, etc.
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A3 is not in violation of any term of its Articles of
Incorporation or By-Laws, or, in any material respect, of any
term or provision of any material mortgage, indebtedness,
indenture, contract, agreement, instrument, judgment or decree,
and to the best of its knowledge is not in violation of any
order, statute, rule or regulation applicable to A3. The
execution, delivery and performance of and compliance with this
Agreement has not resulted and will not result in any violation
of, or conflict with, or constitute a default under, A3's
Articles of Incorporation or By-laws or any of its agreements or
result in the creation of, any mortgage, pledge, lien,
encumbrance or charge upon any of the properties or assets of A3;
and, there is no such violation or default which materially
adversely affects the business of A3 or any of its properties or
assets.
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4.10 Litigation, etc. There are no pending or threatened
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actions, suits, proceedings or investigations by any agency of
any state, the federal government, individual or entity, nor, to
the best of A3' knowledge, is there any reasonable basis
therefor, except as set forth and described on Schedule 4.10.
4.11 Employees. A3 has 12 employees.
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4.12 Certain Transactions. Except as set forth on Schedule
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4.12, A3 is not indebted, directly or indirectly, to any of its
officers, directors or shareholders or to their respective
spouses or children, in any amount whatsoever; none of said
officers, directors or, to the best of A3's knowledge,
shareholders, or any members of their immediate families, are
indebted to A3. A3 is not guarantor or indemnitor of any
indebtedness of any other person, firm or corporation.
4.13 Material Contracts and Obligations. Schedule 4.13
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contains a list of all agreements, contracts, indebtedness,
liabilities and other obligations to which A3 is a party or by
which it is bound. Copies of such agreements and contracts and
documentation evidencing such liabilities and other obligations
have been made available for inspection by RAM and its counsel.
All of such agreements and contracts are valid, binding and in
full force and effect in all material respects, assuming due
execution by the other parties to such agreements and contracts.
4.14 Governmental Consent, etc. No consent, approval or
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authorization of (or designation, declaration of filing with) any
governmental authority on the part of A3 is required in
connection with the valid execution and delivery of this
Agreement or the consummation of any other transaction
contemplated hereby, except (a) filing of the Certificate or
Articles of Merger in the offices of the Secretary of State of
the State of Florida and Arkansas (b) qualification (or taking
such action as may be necessary to secure an exemption from
qualification, if available) of the exchange and merger offer
under applicable state corporation or securities laws, which
filings and qualifications, if required, will be accomplished in
a timely manner.
4.15 Brokers or Finders; Other Offers. A3 has not incurred,
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and will not incur, directly or indirectly, as a result of any
action taken by it, any liability for brokerage or finders' fees
or agents' commissions or any similar charges in connection with
this Agreement, except as set forth on Schedule 4.15.
4.16 Tax Matters. A3: (i) has timely filed all tax returns
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that are required to have been filed by it with all appropriate
federal, state, county and local governmental agencies (and all
such returns fairly reflect A3's operations for tax purposes);
(ii) has timely paid all taxes owed by for which it is obligated
to withhold from amounts owing to any employee (including without
limitation social security taxes), creditor or third party (other
than taxes the validity of which are being contested in good
faith by appropriate proceedings); and (iii) has not waived any
statute of limitations with respect to taxes or agreed to any
extension of time with respect to a tax assessment or deficiency.
The assessment of any additional taxes for periods for which
returns have been filed is not expected to exceed the recorded
liability therefor, and, to the best of A3's knowledge, there are
no material unresolved questions or claims concerning A3's tax
liability. A3's tax returns have not been reviewed or audited by
any federal, state, local or county taxing authority. There is no
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pending dispute with any taxing authority relating to any of said
returns which, if determined adversely to A3, would result in the
assertion by any taxing authority of any valid deficiency in any
material amount for taxes.
4.17 Minute Books. The minute book of A3 provided to RAM
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contains a complete summary of all meetings of directors and
stockholders since the time of incorporation and reflect all
transactions referred to in such minutes accurately in all
material respects.
4.18 Disclosure. This Agreement with the Schedules hereto,
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when taken as a whole, do not contain any untrue statement of a
material fact or omit to state a material fact necessary in order
to make the statements contained herein or therein not misleading
in light of the circumstances under which they were made.
SECTION 5
Representations and Warranties of RAM Officers and Directors
5.1 Involvement in Certain Legal Proceedings. None of the
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RAM officers or directors, have been the subject of any
indictment or conviction for a felony, or of any order, judgment,
decree, or investigation, of any court or agency, federal or
state, permanently or temporarily enjoining the individual from,
or otherwise limiting, the individual from engaging in any type
of business practice or engaging in any activity in connection
with the purchase or sale of any security or commodity or in
connection with any violation of Federal or State securities
laws. Further, none of the RAM officers or directors have been
found by a court of competent jurisdiction or by the Securities
and Exchange Commission to have violated any Federal or State
securities laws.
SECTION 6
Deposit of Funds
6.1 Deposit of Funds Upon Acceptance. A3 shall deposit the
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sum of $250,000 in cash with RAM's counsel in trust upon
acceptance of this Agreement and Plan of Reorganization by RAM
and A3. Upon closing of the transaction contemplated herein, all
of the trust funds deposited shall be disbursed pursuant to RAM's
instructions. In the event that the transaction contemplated is
not completed within 60 days of the date hereof through no fault
of RAM, the deposit shall be returned to A3 without interest less
the sum of $25,000 which sum shall be retained in trust and
disbursed to RAM upon expiration of the stated 60 days and
closure of the trust account forthwith.
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SECTION 7
Representations and Warranties Regarding A3 Affiliates
7.1 Involvement in Certain Legal Proceedings. To the best of
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A3's knowledge, the A3 Affiliates[1] have not been the subject of
any indictment or conviction for a felony, or any order,
judgment, decree, or investigation of any court or agency,
federal or state, permanently or temporarily enjoining the
individual from, or otherwise limiting, the individual from
engaging in any type of business practice or engaging in any
activity in connection with the purchase or sale of any security
or commodity or in connection with any violation of Federal or
State securities laws. Further, to the best of A3's knowledge,
the A3 Shareholders individually have not been found by a court
of competent jurisdiction in a civil action or by the Securities
and Exchange Commission to have violated any Federal or State
securities laws
Section 8
RAM's Conditions to Closing
RAM's obligation to issue the common shares at the Closing
Date is, at the option of RAM, subject to the fulfillment as of
the Closing Date of the following conditions:
8.1 Representations. The representations in Section 4 and
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Section 7 hereof shall be true and correct in all material
respects when made, and shall be true and correct in all material
respects on the Closing Date.
8.2 Certificate of Amendment and Merger. The Certificate or
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Articles of Merger shall have been filed with the offices of the
Secretary of State for Florida and Arkansas.
8.3 Legal Matters. All material matters of a legal nature
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which pertain to this Agreement, and the transactions
contemplated hereby shall have been approved by counsel to RAM,
which approval shall not be unreasonably withheld.
8.4 Suitability of A3 Shareholders. The A3 Shareholders will
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have executed and delivered to RAM a suitability questionnaire or
otherwise qualified to participate in the transactions
contemplated by this Agreement.
8.5 Items to be Delivered at Closing. At Closing, A3 shall
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have tendered for delivery to RAM the following:
8.5.1 A3 Shares: All of A3's issued and outstanding capital
stock shall be cancelled upon issuance and delivery of the
restricted RAM common stock to the A3 Shareholders as
contemplated herein.
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[1] The term "Affiliate" is defined in Rule 144(a)(1) of the
Securities Act as "a person that directly, or indirectly through
one or more intermediaries, controls, or is controlled by, or is
under common control with, such issuer," and is commonly
understood to include officers, directors, and 10% shareholders.
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8.5.2 Funds: Transfer of the $250,000 deposit to the Trust
Account of Xxxxxx Xxxxxxx, PA, consistent with RAM's instructions
at or prior to Closing.
8.5.3 Officers and Directors Certificate: A certificate
representing that the representations and warranties in Section 4
and Section 7 are true and correct in all material respects on
the date of Closing.
8.5.4 Good Standing Certificate. A certificate of the
Arkansas Secretary of State, dated within ten (10) days of the
Closing, showing that A3 is in good standing.
8.5.5 Opinion of Counsel. RAM shall have received from A3's
counsel, an opinion dated the Closing Date, in form and substance
satisfactory to A3 and its counsel, to the effect that:
(a) A3 is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Arkansas and A3 has the requisite corporate power and authority
to conduct its business.
(b) A3 is not presently required to be qualified
to do business as a foreign corporation in any state or
jurisdiction of the United States.
(c) A3 has the requisite corporate power
and authority to execute, deliver and perform this Agreement. The
Agreement has been duly and validly authorized by A3, duly
executed and delivered by an authorized officer of A3 and
constitutes a legal, valid and binding obligation of A3.
(d) The capitalization of A3 is as follows:
(i) Capital Stock. 25 million authorized
shares of common stock of which 17,292,500 common shares, issued
and delivered and are validly outstanding, fully paid and
nonassessable and were issued in compliance with all applicable
federal and state securities laws.
(ii) There are no outstanding preemptive
rights, options, warrants, conversion privileges or other similar
rights (or agreements for any such rights), other than the
options issued and outstanding to purchase or otherwise obtain
any of the Company's securities as set forth in Schedule 4.4.
(e) The certificates representing shares of
common stock are in due and proper form and have been duly and
validly executed by the officers of A3 named thereon.
Section 9
A3's Conditions to Closing
A3's obligation to close on the Closing Date is subject to
the fulfillment of the following conditions:
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9.1. Representations. The representations made in Section 3 and
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Section 5 hereof shall be true and correct when made, and shall
be true and correct on the Closing Date.
9.2. Certificate of Amendment and Merger. The Certificate or
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Articles of Merger shall have been filed with the Secretary of
State of Florida and Arkansas.
9.3. Legal Matters. All material matters of a legal nature which
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pertain to this Agreement, and the transactions contemplated
hereby, shall have been reasonably approved by counsel to A3,
which approval shall not be unreasonably withheld.
9.4. Items to be Delivered at Closing. At Closing, RAM shall have
tendered for delivery to A3 the following:
9.4.1. Delivery of Securities: Stock certificates and stock
purchase options representing in the aggregate 94% of the then
issued and outstanding capital stock of RAM. Certificate(s)
representing the shares of common stock to be issued shall have
affixed a restrictive legend stating as follows:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. SUCH
SHARES MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT AS TO THE SECURITIES UNDER SAID ACT OR AN OPINION
OF COUNSEL SATISFACTORY TO THE CORPORATION THAT SUCH
REGISTRATION IS NOT REQUIRED.
9.4.2. Officers and Directors Certificate: A certificate
representing that the representations and warranties in Sections
3 and 5 are true and correct on the date of Closing.
9.4.3. Stock Purchase Options: Options from Xxxxxx X. Xxxxxxx
and Corporation Investment Associates, Inc. granting the right to
purchase a total of 200,000 issued and outstanding shares of RAM
Common Stock held by such shareholders at any time during the two
(2) year period following the Closing at an exercise price of
$1.50 per share.
9.4.4. Corporate Authorization: Resolution(s) adopted by the
Board of RAM and approved by the shareholders of RAM authorizing
or approving the following:
(a) Change of name of RAM to American Apparel and
Accessories, Inc.
(b) Appointing the following individuals as the
sole directors of RAM: Xxxx Xxxxx, Xxxxx Xxxx, Xxxx Xxxxxx,
Xxxxx Xxxxx, Xxxxxx Xxxxx, Xxxxxxx Xxxxxx, and Xxxxx Xxxxxxx.
(c) The resignation of Xxxxxx Xxxxxx, Xxxxx Xxxxx
and Xxxxx Xxxxxx as directors and officers of RAM.
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(d) The issuance of an aggregate of 23,500,000
shares of common stock, including options to purchase shares of
common stock of RAM, where each such option is exercisable into
one (1) share of Common Stock to be issued as set forth on
Schedule 1.1.
9.4.5. Good Standing Certificate. A certificate of the Florida
Secretary of State, dated within ten (10) days of the closing,
showing that RAM is in good standing.
9.4.6. Opinion of Counsel. A3 shall have received from RAM's
counsel, an opinion dated the Closing Date, in form and substance
satisfactory to A3 and its counsel, to the effect that:
(a) RAM is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Florida and RAM has the requisite corporate power and authority
to conduct its business as it is presently conducted.
(b) RAM is not presently required to be qualified
to do business as a foreign corporation in any state or
jurisdiction of the United States.
(c) RAM has the requisite corporate power and
authority to execute, deliver and perform this Agreement. The
Agreement has been duly and validly authorized by RAM, duly
executed and delivered by an authorized officer of RAM and
constitutes a legal, valid and binding obligation of RAM.
(d) The capitalization of RAM is as follows:
(i) Capital Stock. 25,000,000 shares of
common stock of which 1,500,000 common shares have been duly
authorized, issued and delivered and are validly outstanding,
fully paid and nonassessable and were issued in compliance with
all applicable federal and state securities laws;
(ii) The 23,500,000 shares of RAM common
stock and stock purchase options to be issued to the A3
Shareholders pursuant to this Agreement, will upon issuance, be
duly authorized, issued and delivered and validly outstanding,
fully paid and nonassessable and issued in compliance with all
applicable federal and state securities laws.
(iii) There are no preemptive rights or, to
the best of counsel's knowledge, options, warrants, conversion
privileges or other rights (or agreements for any such rights)
outstanding to purchase or otherwise obtain any of the RAM's
securities.
(e) The certificates representing shares of Common
Stock are in due and proper form and have been duly and validly
executed by the officers of RAM named thereon.
(f) Based in part upon the representations of the
A3 Shareholders, the offer and sale of the Common Stock pursuant
to the terms of this Agreement are exempt from the registration
requirements of Section 5 of the Securities Act by virtue of
Section 4 (2) thereof. A3 shall file a Form D as appropriate,
post-closing.
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Section 10
Corporate Restrictions
10.1. Issuance of Capital Stock or Convertible Debt.
---------------------------------------------
Immediately subsequent to the transactions contemplated herein
and for a 3-year period thereafter, A3 (f/k/a RAM) shall not
issue any capital stock or convertible debt to an Affiliate, as
defined in footnote 1 above, except to the extent such an offer
is made to all shareholders of A3. Notwithstanding the foregoing,
A3 may adopt a stock incentive plan and grant options or
restricted stock to employees of A3, including an Affiliate, if
such a grant is customary and reasonable and consistent with the
terms and conditions of the plan or otherwise.
10.2. No Reverse Split. Immediately subsequent to the
----------------
transactions contemplated herein and for a two (2) year period
thereafter, A3 (f/k/a RAM) shall not reverse split the surviving
entity capital stock.
Section 11
Miscellaneous
11.1. Governing Law. This Agreement shall be governed,
-------------
construed, and enforced in all respects by the internal laws of
the State of Florida.
11.2. Survival. The representations, warranties, covenants
--------
and agreements made herein shall survive the closing of the
transactions contemplated hereby.
11.3. Successors and Assigns. Except as otherwise provided
----------------------
herein, the provisions hereof shall inure to the benefit of, and
be binding upon, the successors, assigns, heirs, executors and
administrators of the parties hereto.
11.4. Entire Agreement: Amendment. This Agreement and the
---------------------------
other documents delivered pursuant hereto at the Closing
constitute the full and entire understanding and agreement
between the parties with regard to the subject hereof and
thereof, and no party shall be liable or bound to any other party
in any manner by any warranties, representations or covenants
except as specifically set forth herein or therein. Except as
expressly provided herein, neither this Agreement nor any term
hereof may be amended, waived, discharged or terminated other
than by a written instrument signed by the party against whom
enforcement of any such amendment, waiver, discharge or
termination is sought.
11.5. Notices, etc.
-------------
A3 and A3 Shareholders: see attached Schedule 11.5.1.
RAM: see attached Schedule 11.5.2.
11.6. Delays or Omissions. Except as expressly provided
-------------------
herein, any delay or omission to exercise any right, power or
remedy accruing to a party, upon any breach or default of the
other party under this Agreement, shall not impair any right,
power or remedy of the non-defaulting party nor shall it be
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construed to be a waiver of any such breach or default, or an
acquiescence therein, or of or in any similar breach or default
thereafter occurring; nor shall any waiver of any single breach
or default be deemed a waiver of any other breach or default
theretofore or thereafter occurring. Any waiver, permit, consent
or approval of any kind or character on the part of a non-
defaulting party of any breach or default under this Agreement,
or any waiver on the part of a non-defaulting party of any
provisions or conditions of this Agreement, must be in writing
and shall be effective only to the extent specifically set forth
in such writing. All remedies, either under this Agreement or by
law or otherwise afforded to any holder, shall be cumulative and
not alternative.
11.7. Expenses. All parties shall bear their own expenses
--------
incurred with respect to this Agreement and the transactions
contemplated hereby.
11.8. Counterparts. This Agreement may be executed in any
------------
number of counterparts, each of which may be executed by less
than all of the parties, each of which shall be enforceable
against the parties actually executing such counterparts, and all
of which together shall constitute one instrument.
11.9. Severability. In the event that any provision of this
------------
Agreement becomes or is declared by a court of competent
jurisdiction to be illegal, unenforceable or void, this Agreement
shall continue in full force and effect without said provision.
11.10. Titles and Subtitles. The titles and subtitles used in
--------------------
this Agreement are used for convenience only and are not
considered in constructing or interpreting this Agreement.
11.11. Litigation. The prevailing party in any dispute or
----------
disagreement arising out of or related to this Agreement shall be
entitled to an award of reasonable attorney's fees and costs,
including those incurred through all appellate proceedings. The
parties agree to submit to the jurisdiction and venue of the
courts in Broward County, Florida and waive any and all
jurisdictional defenses and objections to such venue.
11.12. Disclosure Schedule. The Disclosure Schedule shall be
-------------------
maintained at the offices of A3 in Little Rock, Arkansas, and
shall be made available to RAM upon request.
[REMAINDER OF PAGE LEFT BLANK-SIGNATURE PAGE FOLLOWS]
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The foregoing Agreement is hereby executed as of the date
first above written.
American Apparel and Accessories,
Inc., an Arkansas corporation
By: /s/
--------------------------------
Its:
RAM Venture Holdings Corp., a
Florida corporation
By:
--------------------------------
Its:
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Schedule 1.1
Agreement and Plan of Merger
This Agreement and Plan of Merger ("Plan" or "Plan of
Merger") dated March 31, 2004 (the "Closing Date") by and between
American Apparel and Accessories Inc., an Arkansas corporation
("A3"), and RAM Venture Holdings Corp., a Florida corporation
("RAM" or "Surviving Corp.").
1. Articles of Incorporation. The Articles of Incorporation of
-------------------------
Surviving Corp., as in effect immediately before the Effective
Date, shall be the Articles of Incorporation of the Surviving
Corp. until further amended as provided by law.
2. Distribution and Payment to A3 Shareholders. Upon the
-------------------------------------------
Effective Date, each share of the A3 voting common stock issued
and outstanding at that time shall, without more, be converted
into and exchanged for one (1) share of voting common stock of
the Surviving Corp. Similarly, each unexercised A3 common stock
purchase option outstanding shall be, without more, converted
into and exchanged for one (1) RAM common stock purchase option
with terms and conditions otherwise identical to the converted A3
option exchanged.
3. Filing with the Florida Secretary of State and Effective Date.
-------------------------------------------------------------
Upon the Closing, as provided herein, A3 and the Surviving Corp.
shall immediately cause their respective President (or Vice
President) to execute Articles of Merger and upon such execution,
the Plan of Merger shall be deemed incorporated by reference into
the Articles of Merger as if fully set forth in such Articles and
shall become an exhibit to such Articles of Merger. Thereafter,
such Articles of Merger shall be delivered for filing by the
Surviving Corp. to the Florida Secretary of State. The Articles
of Merger shall specify the "Effective Date," which shall be the
date of filing with the Florida Secretary of State.
4. Assignment. If at any time A3 shall consider or be advised
----------
that any further assignment or assurances in law are necessary or
desirable to vest, perfect, or confirm or record in the Surviving
Corp. the title to any property or rights of A3, or to otherwise
carry out the provisions of this Agreement, the proper officers
and directors of A3 as of the Effective Date shall execute and
deliver any and all proper deeds, assignments, and assurances in
law, and do all things necessary or proper to vest, perfect, or
confirm title to such property or rights in the Surviving Corp.
5. Satisfaction of Rights of A3 Shareholders. All shares of
-----------------------------------------
Surviving Corp.'s common stock into which shares of A3's common
stock shall have been converted and become exchangeable for under
this Plan shall be deemed to have been paid in full satisfaction
of such converted shares.
6. No Fractional Shares. Fractional shares of Surviving Corp.'s
--------------------
stock will not be issued.
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7. Effect of Merger. On the Effective Date, the separate
----------------
existence of A3 shall cease, and Surviving Corp. shall be fully
vested in A3 rights, privileges, immunities, powers, and
franchises, subject to its restrictions, liabilities,
disabilities, and duties.
8. Supplemental Action. If at any time after the Effective Date
-------------------
the Surviving Corp. 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 Corp. or A3, as
the case may be, whether past or remaining in office, shall
execute and deliver, on the request of Surviving Corp., 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
Corp., or to otherwise carry out the provisions of this Plan.
9. Filing with the Arkansas Secretary of State and Effective
---------------------------------------------------------
Date. Upon the Closing, as provided herein, A3 and Surviving
----
Corp. shall immediately cause their respective President, Vice
President, or other duly authorized officer to execute Articles
of Merger and upon such execution this Plan shall be deemed
incorporated by reference into the Articles of Merger as if fully
set forth in such Articles and shall become an exhibit to such
Articles of Merger. Thereafter, Surviving Corp. shall deliver
such Articles of Merger for filing to the Arkansas Secretary of
State. The Articles of Merger shall specify the "Effective Date,"
which shall be the filing date of the Articles of Merger.
10. 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
applicable law.
11. Termination. At any time before the Effective Date (whether
-----------
before or after filing of Articles 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.
17
