EX-2.2
AGREEMENT AND PLAN OF MERGER AND SHARE EXCHANGE
THIS AGREEMENT AND PLAN OF MERGER AND SHARE EXCHANGE is made as
of June 4, 2001 by and among Return Assured Incorporated, a Delaware
corporation ("RAI"), IBUI Acquisition Corp., a Nevada corporation (the
"Merger Subsidiary" and together with RAI, the "RAI Parties"), and
Internet Business's International, Inc., a Nevada corporation
("IBUI"). RAI, the Merger Subsidiary and IBUI are individually
referred to as a "Party" and collectively referred to herein as the
"Parties". Certain other terms are used herein as defined below in
Article I or elsewhere in this Agreement.
BACKGROUND
This Agreement sets forth the terms and conditions under which
(i) the Merger Subsidiary, which is a Wholly-Owned Subsidiary of RAI,
will merge with and into IBUI (the "Merger and Share Exchange"). The
Parties intend that upon completion of the Merger and Share Exchange,
IBUI will be a Wholly-Owned Subsidiary of RAI.
The Merger Subsidiary is a Wholly-Owned Subsidiary of RAI and has
been formed solely to facilitate the Merger and Share Exchange and has
conducted and will conduct no business or activity other than in
connection with the Merger and Share Exchange.
NOW, THEREFORE, in consideration of the respective covenants
contained herein and intending to be legally bound hereby, the Parties
hereto agree as follows:
ARTICLE 1
DEFINITIONS
For convenience, certain terms used in more than one part of this
Agreement are listed in alphabetical order and defined or referred to
below (such terms as well as any other terms defined elsewhere in this
Agreement shall be equally applicable to both the singular and plural
forms of the terms defined).
"Acquisition Proposal" is defined in Section 8.2(a).
"Affiliate" means, with respect to any Person, any other Person that
directly or indirectly controls or is controlled by or under common
control with such Person. For the purposes of this definition,
"control" when used with respect to any Person, means the possession,
direct or indirect, of the power to direct or cause the direction of
the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise; and the
terms of "affiliated," "controlling" and "controlled" have meanings
correlative to the foregoing.
"Agreement" means this Agreement and the Exhibits and Disclosure
Schedules hereto.
"Articles of Merger and Share Exchange" is defined in Section 2.2.
"Assets" means, with respect to RAI, the Merger Subsidiary or IBUI, as
shown by the context in which used, all of the assets, properties,
goodwill and rights of every kind and description, real and personal,
tangible and intangible, wherever situated and whether or not
reflected in such Party's most recent financial statements, that are
owned or possessed by such Party and its Subsidiaries, taken as a whole.
"Assumed IBUI Option" is defined in Section 2.10(b).
"IBUI" means The Internet Business's International, Inc., a Nevada
corporation.
"IBUI Assets" means the Assets of IBUI.
"IBUI Balance Sheet" is defined in Section 6.7.
"IBUI Balance Sheet Date" is defined in Section 6.7.
"IBUI Benefit Plan" is defined in Section 6.15.
"IBUI Business" means the Business of IBUI.
"IBUI Common Stock" means the common stock, par value $0.001 per
share, of IBUI.
"IBUI Companies" means IBUI and any IBUI subsidiaries.
"IBUI Disclosure Schedule" means the Disclosure Schedule containing
information relating to IBUI pursuant to Article V and other
provisions hereof that has been provided to the other Parties on the
date hereof.
"IBUI Financial Statements" means the financial statements of IBUI.
"IBUI Indemnified Loss" is defined in Section 16.2.
"IBUI Indemnified Party" means IBUI and its Affiliates and each of
their respective officers, directors, employees, agents and counsel;
provided, however, that no Person who indemnifies IBUI Indemnified
Parties in this Agreement in his capacity as a Stockholder will be an
IBUI Indemnified Party for purposes of this Agreement, notwithstanding
that the Person is an IBUI Indemnified Party for purposes of one or
more of the other Agreements.
"IBUI's knowledge" or "knowledge of IBUI" with reference to any item
means that which an executive officer of IBUI actually knows.
"IBUI Required Consents" is defined in Section 15.4.
"IBUI Shareholder" means a recordholder, as of the Effective Date of
an outstanding certificate or certificates that immediately prior to
the Effective Date represented IBUI Shares.
"IBUI Shareholder Meeting" is defined in Section 10.2.
"IBUI Subsidiary" means any Subsidiary of IBUI.
"IBUI Warrants" means any warrants to purchase IBUI Common Stock that
are outstanding immediately prior to the Closing.
"IBUI Welfare Plan" is defined in Section 6.15(f).
"Benefit Plan" means all employee benefit, health, welfare,
supplemental unemployment benefit, bonus, pension, profit sharing,
deferred compensation, severance, incentive, stock compensation, stock
purchase, retirement, hospitalization insurance, medical, dental,
legal, disability, fringe benefit and similar plans, programs,
arrangements or practices, including, without limitation, each
"employee benefit plan" as defined in Section 3(3) of ERISA.
"Business" means with respect to RAI, or IBUI, as shown by the context
in which used, the entire business and operations of such Party and
its Subsidiaries, taken as a whole.
"Business Day" means any day except Saturday, Sunday and any day which
shall be a legal holiday or a day on which banking institutions in the
state of New York generally are authorized or required by law or other
government actions to close.
"Charter Documents" means an entity's certificate or articles of
incorporation, certificate defining the rights and preferences of
securities, articles of organization, general or limited partnership
agreement, certificate of limited partnership, joint venture agreement
or similar document governing the entity.
"Closing" is defined in Section 4.1.
"Closing Date" is defined in Section 4.1.
"Code" means the Internal Revenue Code of 1986, as amended. All
citations to provisions of the Code, or to the Treasury Regulations
promulgated thereunder, shall include any amendments thereto and any
substitute or successor provisions thereto.
"Commission" means the Securities and Exchange Commission.
"Confidentiality Agreement" is defined in Section 8.4(b).
"Contract" means any written or oral contract, agreement, letter of
intent, agreement in principle, lease, instrument or other commitment
that is binding on any Person or its property under applicable Law.
"Copyrights" means registered copyrights, copyright applications and
unregistered copyrights.
"Court Order" means any judgment, decree, injunction, order or ruling
of any federal, state, local or foreign court or governmental or
regulatory body or authority, or any arbitrator that is binding on any
Person or its property under applicable Law.
"Default" means (i) a breach, default or violation, (ii) the
occurrence of an event that with or without the passage of time or the
giving of notice, or both, would constitute a breach, default or
violation or (iii) with respect to any Contract, the occurrence of an
event that with or without the passage of time or the giving of
notice, or both, would give rise to a right of termination,
renegotiation or acceleration or a right to receive damages or a
payment of penalties.
"DGCL" means the Delaware General Corporation Law, as amended.
"Effective Date" shall mean the time that the Articles of Merger and
Share Exchange are filed with the Nevada Secretary of State.
"Effectiveness Period" shall have the meaning set forth in Section 7.2(a).
"Encumbrances" means any lien, mortgage, security interest, pledge,
restriction on transferability, defect of title or other claim, charge
or encumbrance of any nature whatsoever on any property or property
interest.
"Environmental Condition" means any condition or circumstance,
including the presence of Hazardous Substances which does or would (i)
require assessment, investigation, abatement, correction, removal or
remediation under any Environmental Law, (ii) give rise to any civil
or criminal Liability under any Environmental Law, (iii) create or
constitute a public or private nuisance or (iv) constitute a violation
of or non-compliance with any Environmental Law.
"Environmental Law" means all Laws, Court Orders, principles of common
law, and permits, licenses, registrations, approvals or other
authorizations of any Governmental Authority relating to Hazardous
Substances, pollution, protection of the environment or human health.
"ERISA" means the Employee Retirement Income Security Act of 1974, as amended.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Agent" is defined in Section 2.6(a).
"Execution Date" means June [date], 2001
"Existing IBUI Option" is defined in Section 2.10(a).
"GAAP" means United States generally accepted accounting principles as
in effect on the Issue Date, including those set forth: (a) in the
opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants, (b) in the
statements and pronouncements of the Financial Accounting Standards
Board, (c) in such other statements by such other entity as approved
by a significant segment of the accounting profession, and (d) the
rules and regulations of the Commission governing the inclusion of
financial statements (including pro forma financial statements) in
periodic reports required to be filed pursuant to Section 13 of the
Exchange Act, including opinions and pronouncements in staff
accounting bulletins and similar written statements from the
accounting staff of the Commission.
"Governmental Authority" means any federal, state, local, municipal or
foreign or other government or governmental agency or body.
"Governmental Permit" is defined in Section 5.12(c).
"Hazardous Substances" means any material, waste or substance
(including, without limitation, any product) that may or could pose a
hazard to the environment or human health or safety including, without
limitation, (i) any "hazardous substances" as defined by the
Comprehensive Environmental Response, Compensation and Liability Act,
42 U.S.C. 9601 et seq. and its implementing regulations, (ii) any
"extremely hazardous substance," "hazardous chemical" or "toxic
chemical" as those terms are defined by the Emergency Planning and
Community Xxxxx-xx-Xxxx Xxx, 00 X.X.X. 00000 et seq. and its
implementing regulations, (iii) any "hazardous waste," as defined
under the Solid Waste Disposal Act, as amended by the Resource
Conservation and Recovery Act, 42 U.S.C. 6901 et seq. and its
implementing regulations (iv) any "pollutant," as defined under the
Water Pollution Control Act, 33 U.S.C. 1251 et seq. and its
implementing regulations as any of such Laws in clauses (i) through
(iv) may be amended from time to time, and (v) any material, substance
or waste regulated under any Laws or Court Orders that currently exist
or that may be enacted, promulgated or issued in the future by any
Governmental Authority concerning protection of the environment,
pollution, health or safety or the public welfare.
"Intellectual Property" means any Copyrights, Patents, Trademarks,
technology, licenses, trade secrets, computer software and other
intellectual property.
"Law" means any statute, law, ordinance, regulation, order, rule,
common law principles or consent agreements of any Governmental
Authority, including, without limitation, those covering
environmental, energy, safety, health, transportation, bribery, record
keeping, zoning, antidiscrimination, antitrust, wage and hour, and
price and wage control matters.
"Liability" means any direct or indirect liability, indebtedness,
obligation, expense, claim, loss, damage, deficiency, guaranty or
endorsement of or by any Person.
"Litigation" means any lawsuit, action, arbitration, administrative or
other proceeding, criminal prosecution or governmental investigation
or inquiry.
"Material Adverse Effect" means a fact or event which has had or is
reasonably likely to have a material adverse effect on the Assets,
Business, financial condition or results of operations of RAI, either
as a corporate entity or with its Subsidiaries taken as a whole, or
IBUI, as indicated by the context in which used, and when used with
respect to representations, warranties, conditions, covenants or other
provisions hereof means the individual effect of the situation to
which it relates and also the aggregate effect of all similar
situations unless the context indicates otherwise.
"Merger and Share Exchange" is defined in Section 2.1.
"Merger Subsidiary" is defined above in the Preamble.
"Nevada Law" means the Nevada Revised Statues.
"Party Representatives" is defined in Section 8.4(b).
"Patents" means patents, patent applications, reissue patents, patents
of addition, divisions, renewals, continuations,
continuations-in-part, substitutions, additions and extensions of any
of the foregoing.
"Person" means an individual or a corporation, partnership, trust,
incorporated or unincorporated association, joint venture, limited
liability company, joint stock company, government (or an agency or
political subdivision thereof) or other entity of any kind.
"Post-Signing Returns" is defined in Section 9.7.
"Proceeding" means an action, claim, suit, investigation or proceeding
(including, without limitation, an investigation or partial
proceeding, such as a deposition), whether commenced or threatened.
"Prospectus" means the prospectus included in the Registration
Statement (including, without limitation, a prospectus that includes
any information previously omitted from a prospectus filed as part of
an effective registration statement in reliance upon Rule 430A
promulgated under the Securities Act), as amended or supplemented by
any prospectus supplement, with respect to the terms of the offering
of any portion of the Registrable Securities covered by the
Registration Statement, and all other amendments and supplements to
the Prospectus, including post-effective amendments, and all material
incorporated by reference or deemed to be incorporated by reference in
such Prospectus.
"Proxy Statement" is defined in Section 8.1(a).
"RAI" is defined above in the Preamble.
"RAI Assets" means the Assets of RAI.
"RAI Balance Sheet" is defined in Section 5.7.
"RAI Balance Sheet Date" is defined in Section 5.7.
"RAI Benefit Plan" is defined in Section 5.16(a).
"RAI Business" means the Business of RAI.
"RAI Common Shares" is defined in Section 2.6(a).
"RAI Companies" means RAI and any RAI Subsidiaries.
"RAI Disclosure Schedule" means the Disclosure Schedule containing
information relating to RAI pursuant to Article V and other provisions
hereof that has been provided to the other Parties on the date hereof.
"RAI Holder" means a recordholder, as of the Effective Date, of an
outstanding certificate or certificates that immediately prior to the
Effective Date represented RAI Shares.
"RAI's knowledge" or "knowledge of RAI" with reference to any item
means that which an executive officer of RAI actually knows.
"RAI Personnel" is defined in Section 5.21(a).
"RAI Required Consents" is defined in Section 14.4.
"RAI SEC Reports" is defined in Section 5.7.
"RAI Shares" is defined in Section 2.5(a).
"RAI Stockholder" means a recordholder, as of the Effective Date, or
an outstanding Certificate or Certificates that immediately prior to
the Effective Date represented RAI Shares.
"RAI Stockholder Indemnified Party" means (a) each Stockholder and
each of that Stockholder's Affiliates (other than the Company or,
following the Closing, the Surviving Corporation or IBUI or any of its
Subsidiaries, if the Stockholder is an Affiliate of IBUI), and each of
their respective officers, directors, employees, agents and counsel
and (b) prior to the Closing, the Company and each of its officers,
directors, employees, agents and counsel who are not Stockholder
Indemnified Parties within the meaning of clause (a) of this definition.
"RAI Stockholder Meeting" is defined in Section 9.2.
"RAI Subsidiary" means any Subsidiary of RAI.
"RAI 10-KSB" is defined in Section 5.9.
"RAI Warrants" means any warrants to purchase Merged Company Common
Stock that are outstanding immediately prior to the Closing.
"RAI Welfare Plan" is defined in Section 5.16(f).
"Registration Indemnified Party" shall have the meaning set forth in
Section 7.6(c).
"Registration Indemnifying Party" shall have the meaning set forth in
Section 7.6(c).
"Registration Statement" means the registration statement,
contemplated by Section 7.1, including the Prospectus, amendments and
supplements to such registration statement or Prospectus, including
pre- and post-effective amendments, all exhibits thereto, and all
material incorporated by reference or deemed to be incorporated by
reference in such registration statement.
"Regulation" means any federal, state, local or foreign rule or
regulation.
"Rule 144" means Rule 144 promulgated by the Commission pursuant to
the Securities Act, as such Rule may be amended from time to time, or
any similar rule or regulation hereafter adopted by the Commission
having substantially the same effect as such Rule.
"Rule 145" means Rule 145 promulgated by the Commission pursuant to
the Securities Act, as such Rule may be amended from time to time, or
any similar rule or regulation hereafter adopted by the Commission
having substantially the same effect as such Rule.
"Rule 158" means Rule 158 promulgated by the Commission pursuant to
the Securities Act, as such Rule may be amended from time to time, or
any similar rule or regulation hereafter adopted by the Commission
having substantially the same effect as such Rule.
"Rule 415" means Rule 415 promulgated by the Commission pursuant to
the Securities Act, as such Rule may be amended from time to time, or
any similar rule or regulation hereafter adopted by the Commission
having substantially the same effect as such Rule.
"SEC" means the United States Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Subsidiary" means any corporation or other legal entity of which RAI
or IBUI, as the case may be (either above or through or together with
any other Subsidiary) owns, directly or indirectly, more than 50% of
the stock or other equity interests the holders of which are generally
entitled to vote for the election of directors or other governing body
of such corporation or other entity.
"Tax Return" means any report, return, election, notice, estimate,
declaration, information statement and other forms and documents
(including all schedules, exhibits and other attachments thereto)
relating to and filed or required to be filed with a taxing authority
in connection with any Taxes (including, without limitation, estimated
Taxes).
"Taxes" means any and all federal, state, local and foreign taxes,
assessments and other governmental charges, duties, impositions,
levies and liabilities, including, without limitation, taxes based
upon or measured by gross receipts, income, profits, sales, use and
occupation, and value added, ad valorem, transfer, gains, franchise,
withholding, payroll, recapture, employment, excise, unemployment,
insurance, social security, business license, occupation, business
organization, stamp, environmental and property taxes, together with
all interest, penalties and additions imposed with respect to such
amounts. For purposes of this Agreement, "Taxes" also includes any
obligations under any agreements or arrangements with any Person with
respect to the liability for, or sharing of, Taxes (including pursuant
to Treas. Reg. Section 1.1502-6 or comparable provisions of state,
local or foreign Tax Law) and including any liability for Taxes as a
transferee or successor, by Contract or otherwise.
"Termination Date" means September 30, 2001
"Trademarks" means registered trademarks, registered service marks,
trademark and service xxxx applications and unregistered trademarks
and service marks.
"Transaction Documents" means this Agreement and the Employment
Agreements.
"Transactions" means the Merger and Share Exchange, the exchange of
the IBUI Shares for RAI Shares, the assumption by RAI of the Existing
IBUI Options, the exchange of the IBUI Warrants for RAI Warrants, and
the other transactions contemplated by the Transaction Documents.
"Wholly-Owned Subsidiary" of any Person means any Subsidiary in which
all of the stock or other equity interests is owned, directly or
indirectly, by such Person.
ARTICLE 2
PLAN OF MERGER AND SHARE EXCHANGE
2.1 THE MERGER AND SHARE EXCHANGE
Upon the terms and subject to the conditions hereof, and in
accordance with the relevant provisions of the DGCL and Nevada Law,
the Merger Subsidiary shall be merged with and into IBUI (the "Merger
and Share Exchange"). Following the Merger and Share Exchange, IBUI
shall continue as the surviving corporation (the "Surviving
Corporation") and shall continue its existence under Nevada Law, and
the separate corporate existence of the Merger Subsidiary shall cease.
2.2 EFFECTIVE DATE
As soon as practicable, but in any event within one business day
after the satisfaction or waiver of all conditions to the Merger and
Share Exchange, the Parties shall file with the Secretary of State of
Nevada the Articles of Merger and Share Exchange (the "Articles of
Merger and Share Exchange") in such form as is required by Nevada Law.
The Merger and Share Exchange shall become effective at the Effective Date.
2.3 CERTIFICATE OF INCORPORATION AND BYLAWS
The Certificate of Incorporation of IBUI as in effect immediately
prior to the Effective Date shall be the initial Certificate of
Incorporation of the Surviving Corporation. The bylaws of IBUI as in
effect immediately prior to the Effective Date shall be the initial
bylaws of the Surviving Corporation.
2.4 DIRECTORS
The initial directors of the Surviving Corporation shall be
[Names]. Such persons shall hold such positions until their
successors are elected or appointed in accordance with the Certificate
of Incorporation and the bylaws of the Surviving Corporation.
2.5 EXCHANGE OF SHARES
On the Effective Date the shares of the IBUI Common Stock shall
be converted and exchanged into shares of RAI common stock, par value
$0.001 per share , (the "Merged Company Common Stock") and warrants
exercisable with respect to shares of RAI Common Stock shall become
exercisable with respect to shares of Merged Company Common Stock in
the following manner:
(a) Each issued and outstanding share of the IBUI Common Stock
shall, by virtue of the Merger and Share Exchange and without any
action on the part of the holder thereof, be converted and
exchanged into 0.14 shares of Merged Company Common Stock,
provided however, that to the extent any holder of the IBUI
Common Stock shall be entitled, as a result of the foregoing
conversion and exchange, to receive less than a whole share of
Merged Company Common Stock, then and in any such event:
(i) no fractional share and/or fractional interest in a
whole share shall be issued; and
(ii) the fractional interest of such holder shall be
liquidated for cash equivalent calculated on the basis of
the closing sales price of Merged Company Common Stock on
the Effective Date or on the first day thereafter that such
price is available.
(b) Anything in this Section 4 to the contrary notwithstanding,
any and all issued shares of the IBUI Common Stock owned by IBUI
and held as treasury stock shall be cancelled and retired and no
shares of RAI Common Stock shall be issued with respect thereto.
2.6 APPOINTMENT OF EXCHANGE AGENT
Prior to the Effective Date RAI shall, subject to the provisions of
Paragraph 8 hereof:
(a) Designate Continental Stock Transfer and Trust (the
"Exchange Agent") to implement the exchange (subsequent to the
Effective Date) of certificates representing shares of the IBUI
Common Stock (the "Old Certificates") for certificates
representing shares of RAI Common Stock (the "New Certificates");
(b) engage the Exchange Agent for a period of the lesser of (i)
12 consecutive months following the Effective Date and (ii) the
date on which all of the Old Certificates held by the IBUI
Stockholders have been surrendered for the New Certificates; and
(c) provide to the Exchange Agent sufficient supplies of New
Certificates so as to enable a holder of an Old Certificate(s) to
surrender such Certificate(s) and receive New Certificate(s).
2.7 CERTIFICATE EXCHANGE
Subsequent to the Effective Date the issuance and distribution of
New Certificates in exchange for Old Certificates shall be implemented
as follows:
(a) As promptly after the Effective Date as shall be
reasonably possible, the Exchange Agent shall be directed to, and
shall, notify (the "Notification") each holder of an Old
Certificate of the consummation of the Merger and Share Exchange,
the availability of New Certificates and a description of the
procedure to be followed (and documents to be executed and
submitted) in connection with the surrender of the Old
Certificate and the issuance of the New Certificate. Upon
compliance by a holder thereof with the requirements for the
certificate surrender and issuance specified in the Notification,
the Exchange Agent shall be directed to, and shall, issue and
transmit to such holder New Certificates (representing that
number of shares of RAI Common Stock to which such holder shall
be entitled as herein provided). Until surrendered and replaced
as aforesaid:
(i) each Old Certificate shall, and be deemed to,
represent and evidence (for all corporate purposes other
than the payment of dividends and other distributions) that
number of shares of RAI Common Stock into which the shares
of the IBUI Common Stock therein referred to are convertible
and exchangeable as herein provided and
(ii) each Old Certificate shall not be transferable on
the books and records of IBUI and/or RAI.
(b) From and after the Effective Date any and all dividends
and/or distributions of every kind, nature or description
declared and payable by RAI on, or with respect to, RAI Common
Stock to any holder of an Old Certificate (collectively
"Distributions") shall be paid, retained, invested and paid over
as follows:
(i) Until such time as the Old Certificate is
surrendered for replacement by a New Certificate(s) as
herein provided, no Distribution shall be paid over by RAI
and/or the Exchange Agent to such holder on, or with respect
to, the shares of RAI Common Stock evidenced by such Old
Certificate;
(ii) All Distributions payable on, or with respect to,
shares of RAI Common Stock represented by Old Certificates
shall be paid over by RAI to the Exchange Agent and dealt in
and with by the Exchange Agent as follows:
(A) All Distributions in cash shall be deposited
by the Exchange Agent in an interest bearing account
(the "Distribution Account") and retained and disposed
of as hereinbelow provided;
(B) Upon surrender by, or on behalf of, a holder
of an Old Certificate for surrender and replacement as
hereinabove provided (or satisfactory proof of loss and
an indemnity in favor of, and acceptable to, RAI and
the Exchange Agent), the Exchange Agent shall pay over
and/or deliver to such holder (in addition to the New
Certificate(s) to which such holder shall be entitled)
(y) the principal amount of any cash dividends and any
property (other than shares of RAI Common Stock)
previously received by the Exchange Agent with respect
to the shares of RAI Common Stock evidenced by such Old
Certificate and (z) a certificate representing any
shares of RAI Common Stock forming part of any
Distribution made prior to the date of any such
surrender; and
(C) Any and all interest earned and/or credited
on, or with respect to, Distributions shall be applied
by the Exchange Agent to the payment of its fees and
disbursements and the remainder, if any, paid over to
RAI upon the termination of the engagement of the
Exchange Agent.
(c) From and after the Effective Date the sole rights of
the holders of Old Certificates (except as otherwise provided by
law) shall be those to which they are entitled as owners of RAI
Common Stock into which the shares of the IBUI Common Stock
evidenced by such Old Certificates shall have been converted as
herein provided.
2.8 TRANSFERS
If the holder of any Old Certificate desires that the New
Certificate to be issued in replacement therefore (as hereinabove
provided) is to be issued in a name other than that on the Old
Certificate which it replaces, any such issuance shall be subject to
and conditioned upon:
(a) Delivery to the Exchange Agent of the Old Certificate
duly endorsed in blank or accompanied by a duly executed stock
assignment power and otherwise in form for transfer acceptable to
the Exchange Agent; and
(b) Payment to RAI or the Exchange Agent of any and all
transfer and/or other taxes payable, in the opinion of the
Exchange Agent, by reason of the issuance and/or transfer of such
New Certificate and/or the shares of RAI Common Stock evidenced
thereby.
2.9 TERMINATION OF EXCHANGE AGENT
Upon the termination of the Exchange Agent's engagement as
hereinabove provided, the Exchange Agent shall deliver to RAI the then
balance of the Distribution Account and, upon such delivery, the
Exchange Agent shall have no further duties or obligations as exchange
agent to RAI, The Merger Subsidiary, IBUI or their respective
stockholders. Thereafter, the duties to be performed by the Exchange
Agent as described in Sections 6 and 7 hereof shall be performed by
RAI in lieu of, and instead of, the Exchange Agent. All blank stock
certificates evidencing RAI Common Stock shall be retained by the
Exchange Agent for utilization by it in the performance of its duties
as transfer agent for, and with respect to, RAI Common Stock.
2.10 OPTIONS AND WARRANTS
(a) At the Effective Date, RAI shall assume IBUI's
rights and obligations under each of the outstanding stock
options previously granted by IBUI to certain of its employees,
directors and consultants that are outstanding immediately prior
to the Effective Date (each such stock option existing
immediately prior to the Effective Date is referred to herein as
an "Existing IBUI Option" and each such assumed stock option
existing immediately after the Effective Date is referred to
herein as an "Assumed IBUI Option"). Under each Assumed IBUI
Option, the optionee shall have the right to receive from RAI, in
accordance with the terms and subject to the conditions of the
Existing IBUI Option, the Merger Consideration that such optionee
would have been entitled to receive had the optionee exercised
his or her Existing IBUI Option immediately prior to the
Effective Date, but only in accordance with the terms and
conditions of the Existing IBUI Option (including payment of the
aggregate exercise price thereof). Except as provided in this
Section 2.10(a), the Assumed IBUI Option shall not give the
optionee any additional benefits that the holder thereof did not
have under the Existing IBUI Option; provided, however, that the
terms of such Existing IBUI Options shall govern the vesting
thereof, including, if applicable, any vesting of Existing IBUI
Options as a result of the Merger and Share Exchange. Each
Assumed IBUI Option shall constitute a continuation of the
Existing IBUI Option, substituting RAI for IBUI.
(b) Each IBUI Warrant that is outstanding immediately
prior to the Effective Date and that does not expire at the
Effective Date by the terms thereof shall, by virtue of the
Merger and Share Exchange and pursuant to the terms of the IBUI
Warrant or with the consent of the majority of the holders
thereof, be converted into and exchanged for a Merged Company
Warrant exercisable for the [Conversion Number] of Merged Company
Shares for each share of Merged Company Common Stock for which
the IBUI Warrant is exercisable immediately prior to the
Effective Date, at an exercise price per Merged Company Share
that has been adjusted in accordance with the terms of the IBUI
Warrant converted hereunder as a result of the Merger and Share
Exchange. The IBUI Warrants shall have the terms and conditions
of the IBUI Warrants converted hereunder. At the Effective Date,
RAI shall make available to any holders of IBUI Warrants
converted hereunder a new warrant evidencing RAI Warrant.
2.11 [Intentionally Omitted]
2.12 MERGER SUBSIDIARY CAPITAL STOCK
Each share of capital stock of the Merger Subsidiary issued and
outstanding immediately prior to the Effective Date shall be
converted, by virtue of the Merger and Share Exchange, into one share
of common stock of the Surviving Corporation.
2.13 NO FURTHER TRANSFER OF SHARES
After the Effective Date, there shall be no transfers of IBUI
Shares that were outstanding immediately prior to the Effective Date
on the stock transfer books of the Surviving Corporation. If, after
the Effective Date, Certificates are presented to the Surviving
Corporation for transfer, they shall be canceled and exchanged for the
Merger Consideration as provided in this Article II.
ARTICLE 3
RESCISSION RIGHTS
3.1 GENERAL
Each of the RAI Parties and IBUI acknowledge and agree that the
obligations of the RAI Parties and IBUI are unique and personal to the
RAI Parties and IBUI, respectively, and may be discharged only by the
RAI Parties and IBUI, respectively. The RAI Parties and IBUI further
acknowledge and agree that if the RAI Parties or IBUI were to fail to
observe or to perform any of certain provisions of this Agreement,
including in particular those set forth in this Article III, the award
of damages arising from such breach would be difficult, and perhaps
impossible, to ascertain in money or money's worth, and therefore,
damages would not be an adequate remedy. Therefore the Parties agree
that each of the RAI Parties and IBUI shall have rescission rights as
set forth in this Article III.
3.2 RESCISSION RIGHTS OF RAI STOCKHOLDERS
If any representation or warranty of IBUI contained in this
Agreement or any covenant of IBUI contained in this Agreement shall be
materially breached, then, at any time for twelve (12) months after
the Effective Date, the majority in interest of the RAI Stockholders
may rescind the Merger and Share Exchange by signing RAI notice of the
right to rescind the Merger and Share Exchange. RAI shall then
promptly give notice of the RAI Stockholders notice of rescission to
the IBUI Shareholders and the IBUI Shareholders shall have thirty (30)
days from the date of the RAI Stockholders notice to cure such breach
if such breach is capable of being cured. If the breach is not cured
within the applicable period or not capable of being cured, then all
of the shares of the Surviving Corporation shall be put back to the
RAI Stockholders in accordance with Section 3.4.
3.3 RESCISSION RIGHTS OF IBUI SHAREHOLDERS
If any representation or warranty of the RAI Parties contained in
this Agreement or any covenant of IBUI contained in this Agreement
shall be materially breached then, at any time twelve (12) months
after the Effective Date, then the majority in interest of the IBUI
Shareholders may rescind the Merger and Share Exchange by signing RAI
notice of the right to rescind the Merger and Share Exchange. RAI
shall then promptly give notice of the IBUI Shareholders notice of
rescission to the RAI Stockholders and the RAI Stockholders shall have
thirty (30) days from the date of the IBUI Shareholders notice to cure
such breach if each breach is capable of being cured. If the breach
is not cured within the applicable period or not capable of being
cured, then all of the shares of the Surviving Corporation shall be
put back to the IBUI Shareholders in accordance with Section 3.4.
3.4 APPLICABLE PROVISIONS TO ARTICLE III
In the event of rescission under Sections 3.2 or 3.3, the following
shall apply:
(a) All assets held by IBUI at the Effective Date
shall be held by IBUI when returned to the IBUI Shareholders,
upon the closing of the rescission; and
(b) New assets acquired by the Surviving Corporation
after the Effective Date and held by IBUI on the closing of the
rescission, to the extent not offset by new liabilities of IBUI
on the closing of the rescission shall be equitably divided
between RAI and IBUI, and, to the extent that the Parties can not
agree upon an equitable division, such new assets shall be sold
and the net proceeds of sale shall be evenly divided between RAI
and IBUI.
3.5 MODIFICATION
Any provision under this Article III may be modified or waived only
by the written consents of the majority in interest or the IBUI
Shareholders and the RAI Stockholders.
ARTICLE 4
THE CLOSING
4.1 THE CLOSING
The closing of the transactions contemplated by this Agreement
shall take place on such date, at such place and at such time within
five business days after the satisfaction or waiver of the last of the
conditions set forth in Article XII, XIII, XIV and XV hereof. The
closing of such transactions shall be referred to herein as the
"Closing;" the date of the Closing shall be referred to herein as the
"Closing Date".
4.2 DELIVERIES
At the Closing,
(a) IBUI, the Merger Subsidiary and RAI shall deliver or
cause to be delivered to the Secretary of State of the State of
Nevada a duly executed Articles of Merger and Share Exchange as
required under Nevada Law and the Parties shall take all such
other and further actions as may be required by Nevada Law and
any other applicable Law to make the Merger and Share Exchange
effective upon the terms and subject to the conditions hereof;
and
(b) The Parties shall also deliver to each other the
respective agreements and other documents and instruments
specified with respect to them in Articles XII, XIII, XIV and XV.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF RAI
RAI hereby represents and warrants to IBUI as follows, except as
otherwise set forth in the RAI Disclosure Schedule (items disclosed in
one Section of such Schedule shall apply to all other Sections unless
specified otherwise):
5.1 CORPORATE
Each RAI Company is a corporation duly organized, validly existing
and in good standing under the Laws under which it was incorporated.
Each RAI Company is qualified to do business as a foreign corporation
in any jurisdiction where it is required to be so qualified, except
where the failure to so qualify would not have a Material Adverse
Effect. The Charter Documents and bylaws of each RAI Company (all of
which have been delivered or made available to IBUI) have been duly
adopted and are current, correct and complete. Each RAI Company has
all necessary corporate power and authority to own, lease and operate
its part of the RAI Assets and to carry on its part of the RAI
Business as it is now being conducted.
5.2 AUTHORIZATION
Each RAI Company has the requisite corporate power and authority to
execute and deliver the Transaction Documents to which it is a party
and to perform the Transactions to be performed by it. Such execution,
delivery and performance by each RAI Company has been duly authorized
by all necessary corporate action, other than the approval of this
Agreement and consummation of the Merger and Share Exchange, which is
subject to the approval of the holders of a majority of the
outstanding RAI Common Shares, and are the only consents or approvals
of holders of RAI capital stock required for the consummation of the
Transactions. Each Transaction Document executed and delivered by
each RAI Company as of the date hereof has been duly executed and
delivered by such RAI Company and constitutes a valid and binding
obligation of such RAI Company enforceable against such RAI Company in
accordance with its terms. Any Transaction Document executed and
delivered by each RAI Company after the date hereof will be duly
executed and delivered by such RAI Company and will constitute a valid
and binding obligation of such RAI Company, enforceable against such
RAI Company in accordance with its terms, except as otherwise limited
by bankruptcy, insolvency, reorganization and other laws affecting
creditors rights generally, and except that the remedy of specific
performance or other equitable relief is available only at the
discretion of the court before which enforcement is sought.
5.3 VALIDITY OF CONTEMPLATED TRANSACTIONS
Except for compliance with (i) the Securities Act and the Exchange
Act and (ii) the filing of the Articles of Merger and Share Exchange
with the Secretary of State of the State of Nevada, neither the
execution and delivery by each RAI Company of the respective
Transaction Documents to which it is or will be a party, nor the
performance of the Transactions to be performed by it, will require
any filing, consent or approval under or constitute a Default, or
result in a loss of material benefit under, (a) any Law or Court Order
to which any RAI Company is subject, (b) the Charter Documents or
bylaws of any RAI Company, or (c) any Contracts to which any RAI
Company is a party or by which any of the RAI Assets may be subject,
except for Defaults which would not have a Material Adverse Effect.
5.4 CAPITALIZATION AND STOCK OWNERSHIP
The total authorized capital stock of RAI consists of (a)
50,000,000 shares of Merged Company Common Stock, and (b) 1,000,000
shares of Series A Preferred Stock, par value $0.001 per share (the
"Preferred Stock"). Of such authorized capital stock, the only issued
and outstanding shares on the date hereof are [ ] RAI Common
Shares. Except as set forth in the RAI Disclosure Schedule, there are
no existing options, warrants, calls, commitments or other rights of
any character (including conversion or preemptive rights) relating to
the acquisition of any issued or unissued capital stock or other
securities of RAI. The RAI Disclosure Schedule sets forth, as of the
date hereof, as to each option or warrant, the holder, date of grant,
exercise price and number of shares subject thereto. All of the issued
and outstanding RAI Common Shares are validly issued fully paid and
non-assessable. Following the Effective Date, no options, warrants,
calls, commitments or other rights of any character (including
conversion or preemptive rights) will entitle any Person to acquire
any securities of the Surviving Corporation or any subsidiary thereof.
5.5 LISTING
RAI Common Stock is listed for quotation on the NASDAQ Small Cap
Market under the symbol "RTRN". RAI has received a letter from NASDAQ
indicating that it has not met the ongoing listing requirements in
that RAI's common stock has traded below $1.00 for more than 30
trading days. The Company's shares now must close above $1.00 for 10
consecutive trading days by June 4, 2001. After June 4, 2001, RAI may
request a meeting with NASDAQ to address this issue.
5.6 REGISTRATION STATEMENT; CONSENT SOLICITATION STATEMENT; PROSPECTUS
None of the information supplied or to be supplied by or on behalf
of any RAI Company specifically for inclusion in the Registration
Statement (as defined in Section 7.1) will (except to the extent
revised or superseded by amendments or supplements contemplated
hereby), at the time of distribution to the IBUI Shareholders, contain
any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading. None of the information supplied or to be supplied by or
on behalf of any RAI Company specifically for inclusion or
incorporation by reference in the Consent Solicitation
Statement/Prospectus (as defined in Section 7.1) will (except to the
extent revised or superseded by amendments or supplements contemplated
hereby), at the date it (or any such amendment or supplement) is
mailed to the stockholders of RAI and at the time of the RAI
Stockholder Meeting, 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
Registration Statement and the Consent Solicitation
Statement/Prospectus (except for information relating solely to IBUI)
will comply in all material respects with the requirements of the
Securities Act and the Exchange Act and the Regulations promulgated
thereunder.
5.7 RAI SEC REPORTS; FINANCIAL STATEMENTS
RAI has filed all required forms, reports, statements, schedules
and other documents with the SEC since January 1, 1997, including its
(a) Annual Reports on Form 10-KSB for the fiscal years ended August
30, 2000, 1999 and 1998, (b) all proxy statements relating to RAI's
meetings of stockholders (whether annual or special) held since
January 1, 1997, and (c) all other reports or registration statements
filed by RAI with the SEC since January 1, 1997 (collectively, the
"RAI SEC Reports"). Each of such RAI SEC Reports, at the time it was
filed, complied in all material respects with all applicable
requirements of the Securities Act and the Exchange Act, and with the
forms and Regulations of the SEC promulgated thereunder, and did not
contain at the time filed 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 financial
statements, including all related notes and schedules, contained in
the RAI SEC Reports (or incorporated by reference therein) fairly
present the consolidated financial position of RAI as at the
respective dates thereof and the consolidated results of operations
and cash flows of RAI for the periods indicated in accordance with
GAAP applied on a consistent basis throughout the periods involved
(except for changes in accounting principles disclosed in the notes
thereto) and subject in the case of interim financial statements to
normal year-end adjustments and the absence of notes. For purposes of
this Agreement, the balance sheet of RAI as of August 30, 2000 is
referred to as the "RAI Balance Sheet" and the date thereof is
referred to as the "RAI Balance Sheet Date."
5.8 TAXES
(a) Each RAI Company has (i) filed (or, in the case
of Tax Returns not yet due, will file) with the appropriate
governmental agencies all material Tax Returns required to be
filed on or before the Effective Date and all such Tax Returns
filed were true, correct and complete in all material respects,
and (ii) paid (or, in the case of Taxes not yet due, will pay),
all Taxes shown on such Tax Returns.
(b) Each RAI Company has (i) duly paid or caused to be
paid all material Taxes and all Taxes shown on Tax Returns that
are or were due, except to the extent that a sufficient reserve
for Taxes has been reflected on the RAI Balance Sheet and (ii)
provided a sufficient reserve on the RAI Balance Sheet for the
payment of all Taxes not yet due and payable.
(c) No deficiency in respect of any Taxes which has
been assessed against an RAI Company remains unpaid, except for
Taxes being contested in good faith, and RAI has no knowledge of
any unassessed Tax deficiencies or of any audits or
investigations pending or threatened against an RAI Company with
respect to any Taxes.
(d) No RAI Company has extended or waived the
application of any applicable statute of limitations of any
jurisdiction regarding the assessment or collection of any Tax or
any Tax Return.
(e) There are no liens for Taxes upon any assets of
any RAI Company except for liens for current Taxes not yet due.
(f) Each RAI Company has to its knowledge (i) complied
with all material provisions of the Code relating to the
withholding and payment of Taxes and (ii) has made all deposits
required by applicable Law to be made with respect to employees'
withholding and other payroll, employment or other withholding or
related Taxes.
(g) No RAI Company is a party to any contract,
agreement, plan or arrangement that, individually or in the
aggregate, or when taken together with any payment that may be
made under this Agreement or any agreements contemplated hereby,
could give rise to the payment of any "excess parachute payment"
within the meaning of Section 280G of the Code.
(h) No RAI Company is a party to any agreement
relating to the allocating or sharing of the payment of, or
liability for, Taxes for any period (or portion thereof).
(i) To RAI's knowledge, except for the group of
which RAI is presently the ultimate parent, no RAI Company
has ever been a member of an affiliated group of
corporations (within the meaning of Section 1504 of the Code).
5.9 TITLE TO ASSETS AND RELATED MATTERS
Each RAI Company has good and marketable title to its part of the
RAI Assets, free from any Encumbrances except (a) any Encumbrance in
favor of any RAI Company, (b) items described in any notes to the
consolidated financial statements of RAI contained in RAI's Annual
Report on Form 10-KSB for the fiscal year ended August 31, 2000 (the
"RAI 10-KSB") included in the RAI SEC Reports, (c) minor matters that
would not have a Material Adverse Effect, (d) constitutional and
statutory liens arising from the obligation to pay for the provision
of materials or services not yet in Default and Taxes not yet due and
(e) RAI Assets transferred among the RAI Companies.
5.10 REAL PROPERTY
All material real estate leased by any RAI Company as of the date
hereof and used in the operation of the RAI Business are disclosed in
the RAI SEC Reports. As of the date hereof, none of the RAI Companies
owns any real property.
5.11 SUBSIDIARIES
As of the date hereof none of the RAI Companies owns, directly or
indirectly, any interest or investment (whether equity or debt) in any
corporation, partnership, limited liability company, business trust,
joint venture or other legal entity. RAI (or another RAI Company) owns
all of the issued and outstanding shares of capital stock of each RAI
Subsidiary. There are no existing options, warrants, calls,
commitments or other rights of any character (including conversion or
preemptive rights) relating to the acquisition or voting of any issued
or unissued capital stock or other securities of any RAI Subsidiary.
All of the shares of capital stock of each RAI Subsidiary are duly and
validly authorized and issued, fully paid and non-assessable.
5.12 LEGAL PROCEEDINGS; COMPLIANCE WITH LAW; GOVERNMENTAL PERMITS
..
(a) There is no Litigation that is pending or, to
RAI's knowledge, threatened against any RAI Company that would
have a Material Adverse Effect. RAI is and has been in compliance
with all applicable Laws, including Environmental Law, except
where the failure to be in compliance would not have a Material
Adverse Effect. There has been no Default under any Laws
applicable to any RAI Company, including Environmental Laws,
except for any Defaults that would not have a Material Adverse
Effect. There has been no Default with respect to any Court Order
applicable to any RAI Company. No RAI Company has received any
written notice and, to the knowledge of RAI, no other
communication has been received to the effect that it is not in
compliance with any applicable Laws, and RAI has no reason to
believe that any presently existing circumstances are likely to
result in violations of any applicable Laws, except to the extent
that such failures to comply or violations would not have a
Material Adverse Effect.
(b) To RAI's knowledge, there is no Environmental
Condition at any property presently or formerly owned or leased
by an RAI Company which is reasonably likely to have a Material
Adverse Effect.
(c) The RAI Companies have all material consents,
permits, franchises, licenses, concessions, registrations,
certificates of occupancy, approvals and other authorizations of
Governmental Authorities (collectively, the "Governmental
Permits") required in connection with the operation of their
respective businesses as now being conducted, all of which are in
full force and effect, except where the failure to obtain any
such Governmental Permit or of any such Governmental Permit to be
in full force and effect, would not have a Material Adverse
Effect. Each RAI Company has complied, in all material respects,
with all of its Governmental Permits, except where the failure to
so comply would not have a Material Adverse Effect.
5.13 CONTRACTS AND COMMITMENTS
The RAI Disclosure Schedule describes:
(a) Contracts (excluding letters of intent and agreements
in principle) involving any RAI Company in amounts in excess of $100,000.
(b) All employment, consulting, management, severance or
agency Contracts providing for annual payments of at least
$100,000 (y) with any executive officers or directors of RAI, or
(z) allowing the other party to terminate and receive payment
based on the execution of this Agreement and consummation of the
Transactions.
(c) Any employment agreements with any Person to whom any
RAI Company makes annual salary payments in excess of $100,000.
(d) All Contracts limiting the freedom of any RAI Company
to compete in any line of business, or with any Person, or in any
geographic area or market.
Each Contract providing for payments in excess of $100,000 to which
any RAI Company is a party (i) is legal, valid, binding and
enforceable against RAI or the applicable Subsidiary except as
otherwise limited by bankruptcy, insolvency, reorganization and other
laws affecting creditors' rights generally, and except that the remedy
of specific performance or other equitable relief is available only at
the discretion of the court before which enforcement is sought, and
(ii) neither RAI nor the applicable Subsidiary, nor to RAI's
knowledge, any other party, is in Default under any such Contract,
other than in the case of (i) and (ii) above where the failure to be
so would not have a Material Adverse Effect.
5.14 EMPLOYEE RELATIONS
No RAI Company is (a) a party to, involved in or, to RAI's
knowledge, threatened by, any labor dispute or unfair labor practice
charge, or (b) currently negotiating any collective bargaining
agreement, and no RAI Company has experienced any work stoppage during
the last three years.
5.15 ERISA
..
(a) The RAI Disclosure Schedule contains a complete
list of all Benefit Plans sponsored or maintained by any RAI
Company or under which any RAI Company may be obligated for its
employees, directors or independent contractors ("RAI Benefit
Plans"). RAI has delivered or made available to IBUI (i)
accurate and complete copies of all RAI Benefit Plan documents
and of any summary plan descriptions, summary annual reports and
insurance contracts relating thereto, (ii) accurate and complete
detailed summaries of all unwritten RAI Benefit Plans, (iii)
accurate and complete copies of the most recent financial
statements and actuarial reports with respect to all RAI Benefit
Plans for which financial statements or actuarial reports are
required or have been prepared and (iv) accurate and complete
copies of all annual reports for all RAI Benefit Plans (for which
annual reports are required) prepared within the last two years.
(b) All RAI Benefit Plans conform in all material
respects to, and are being administered and operated in material
compliance with, the requirements of ERISA, the Code and all
other applicable Laws, including applicable Laws of foreign
jurisdictions. There have not been any "prohibited transactions,"
as such term is defined in Section 4975 of the Code or Section
406 of ERISA involving any of the RAI Benefit Plans, that could
subject any RAI Company to any material penalty or tax imposed
under the Code or ERISA.
(c) Any RAI Benefit Plan that is intended to be
qualified under Section 401(a) of the Code and exempt from tax
under Section 501(a) of the Code has been determined by the
Internal Revenue Service to be so qualified, and such
determination remains in effect and has not been revoked. Nothing
has occurred since the date of any such determination that is
reasonably likely to affect adversely such qualification or
exemption, or result in the imposition of excise taxes or income
taxes on unrelated business income under the Code or ERISA with
respect to any RAI Benefit Plan.
(d) No RAI Company has a current or contingent
obligation to contribute to any multiemployer plan (as defined in
Section 3(37) of ERISA) and (ii) no RAI Company, nor any entity
that has been treated as a single employer with any RAI Company
under Sections 414(b), (c), (m) or (o) of the Code, has any
liability, contingent or otherwise, under Title IV of ERISA or
Section 412 of the Code.
(e) There are no pending or, to the knowledge of RAI,
threatened claims by or on behalf of any RAI Benefit Plans, or by
or on behalf of any individual participants or beneficiaries of
any RAI Benefit Plans, alleging any breach of fiduciary duty on
the part of any RAI Company or any of the officers, directors or
employees of any RAI Company under ERISA or any other applicable
Regulations, or claiming benefit payments other than those made
in the ordinary operation of such plans, or alleging any
violation of any other applicable Laws. To RAI's knowledge, the
RAI Benefit Plans are not the subject of any investigation, audit
or action by the Internal Revenue Service, the Department of
Labor or the Pension Benefit Guaranty Corporation ("PBGC"). Each
RAI Company has made all required contributions under the RAI
Benefit Plans including the payment of any premiums payable to
the PBGC and other insurance premiums.
(f) With respect to any RAI Benefit Plan that is an
employee welfare benefit plan (within the meaning of Section 3(1)
of ERISA) (an "RAI Welfare Plan"), (i) each RAI Welfare Plan for
which contributions are claimed as deductions under any provision
of the Code is in material compliance with all applicable
requirements pertaining to such deduction, (ii) with respect to
any welfare benefit fund (within the meaning of Section 419 of
the Code) related to an RAI Welfare Plan, there is no
disqualified benefit (within the meaning of Section 4976(b) of
the Code) that would result in the imposition of a tax under
Section 4976(a) of the Code, and (iii) any RAI Benefit Plan that
is a group health plan (within the meaning of Section 4980B(g)(2)
of the Code) complies, and in each and every case has complied,
with all of the material requirements of Section 4980B of the
Code, ERISA, Title XXII of the Public Health Service Act and the
applicable provisions of the Social Security Act.
(g) The execution of this Agreement and the
performance of the Transactions will not (either alone or in
combination with the occurrence of any additional or subsequent
events) constitute an event under any RAI Benefit Plan that will
or may result in any payment (whether of severance pay or
otherwise), acceleration, forgiveness of indebtedness, vesting,
distribution, increase in benefits or obligation to fund benefits
with respect to any current or former employee, director or
consultant of any RAI Company.
5.16 PATENTS, TRADEMARKS, ETC.
To RAI's knowledge, no RAI Company infringes upon or unlawfully or
wrongfully uses any Intellectual Property owned or claimed by another
Person and no Person infringes on or wrongfully uses any Intellectual
Property owned or claimed by RAI, except for those situations that
would not have a Material Adverse Effect. To RAI's knowledge, the RAI
Companies own or have valid rights to use all Intellectual Property
used in the conduct of their business except where the failure to have
valid rights to use such Intellectual Property will not have a
Material Adverse Effect, free and clear of all Encumbrances, other
than Encumbrances which would not have a Material Adverse Effect.
5.17 ABSENCE OF CERTAIN CHANGES
Since the RAI Balance Sheet Date, the RAI Companies have conducted
the RAI Business in the ordinary course, as of the date hereof, there
has not been:
(a) any Material Adverse Effect on the RAI Business
or, in the aggregate, Liabilities of the RAI Companies;
(b) any distribution or payment declared or made in
respect of RAI's capital stock by way of dividends, purchase or
redemption of shares or otherwise;
(c) any increase in the compensation payable or to
become payable to any current director or officer of any RAI
Company, except for merit and seniority increases for employees
made in the ordinary course of business, nor any material change
in any existing employment, severance, consulting arrangements or
any RAI Benefit Plan;
(d) any sale, assignment or transfer of any RAI
Assets, or any additions to or transactions involving any RAI
Assets, other than those made in the ordinary course of business
or those solely involving the RAI Companies;
(e) other than in the ordinary course of business, any
waiver or release of any material claim or right or cancellation
of any material debt held by any RAI Company;
(f) any change in practice with respect to Taxes, or
any election, change of any election, or revocation of any
election with respect to Taxes, or any settlement or compromise
of any dispute involving a Tax liability;
(g) (i) any creation, assumption or maintenance of any
long-term debt or any short-term debt for borrowed money other
than under existing notes payable, lines of credit or other
credit facility or in the ordinary course of business or with
respect to its Wholly-Owned Subsidiaries; (ii) any assumption,
granting of guarantees, endorsements or otherwise becoming liable
or responsible (whether directly, contingently or otherwise) for
the obligations of any other Person except its Wholly-Owned
Subsidiaries; or (iii) any loans, advances or capital
contributions to, or investments in, any other Person except its
Wholly-Owned Subsidiaries;
(h) any material agreement, commitment or contract,
except agreements, commitments or contracts for the purchase,
sale or lease of goods or services in the ordinary course of
business;
(i) other than in the ordinary course of business, any
authorization, recommendation, proposal or announcement of an
intention to authorize, recommend or propose, or enter into any
Contract with respect to, any (i) plan of liquidation or
dissolution, (ii) acquisition of a material amount of assets or
securities, (iii) disposition or Encumbrance of a material amount
of assets or securities, (iv) merger or consolidation or (v)
material change in its capitalization; or
(j) any change in accounting or Tax procedure or
practice.
5.18 CORPORATE RECORDS
The minute books of each RAI Company contain accurate, complete and
current copies of all Charter Documents and of all minutes of
meetings, resolutions and other proceedings of its Board of Directors
and stockholders.
5.19 FINDER'S FEES
No Person is or will be entitled to any commission, finder's fee or
other payment in connection with the Transactions based on
arrangements made by or on behalf of RAI.
5.20 REORGANIZATION
No RAI Company has or, as of the Closing Date, will have taken any
action or failed to take any action which action or failure would
result in the failure of the Merger and Share Exchange to qualify as a
reorganization within the meaning of Code Section 368(a). RAI has no
knowledge of any fact or circumstance that is reasonably likely to
prevent the Merger and Share Exchange from qualifying as a
reorganization within the meaning of Code Section 368(a).
5.21 OWNERSHIP OF MERGER SUBSIDIARY; NO PRIOR ACTIVITIES
The Merger Subsidiary is a Wholly-Owned Subsidiary of RAI created
solely for the purpose of effecting the Merger and Share Exchange. As
of the date hereof and the Effective Date, except for Liabilities
incurred in connection with its incorporation or organization and the
Transactions and except for this Agreement and the other Transaction
Documents, neither RAI or the Merger Subsidiary has, nor will have,
directly or indirectly, through any Subsidiary or Affiliate of RAI,
any material Liabilities, engaged in any material business activities
of any type or kind whatsoever or entered into any agreements or
arrangements with any Person.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF IBUI
IBUI hereby represents and warrants to RAI as follows, except as
otherwise set forth in the IBUI Disclosure Schedule (items disclosed
in one Section of such Schedule shall apply to all other Sections
unless specified otherwise):
6.1 CORPORATE
Each IBUI Company is a corporation duly organized, validly existing
and in good standing under the Laws under which it was incorporated.
Each IBUI Company is qualified to do business as a foreign corporation
in any jurisdiction where it is required to be so qualified, except
where the failure to so qualify would not have a Material Adverse
Effect. The Charter Documents and bylaws of each IBUI Company (all of
which have been delivered or made available to RAI) have been duly
adopted and are current, correct and complete. Each IBUI Company has
all necessary corporate power and authority to own, lease and operate
its part of the IBUI Assets and to carry on its part of the IBUI
Business as it is now being conducted.
6.2 AUTHORIZATION
Each IBUI Company has the requisite corporate power and authority
to execute and deliver the Transaction Documents to which it is a
party and to perform the Transactions to be performed by it. Such
execution, delivery and performance by each IBUI Company has been duly
authorized by all necessary corporate action, other than the approval
of this Agreement and consummation of the Merger and Share Exchange,
which is subject to the approval of the holders of a majority of the
outstanding IBUI Common Stock, and are the only consents or approvals
of holders of IBUI capital stock required for the consummation of the
Transactions. Each Transaction Document executed and delivered by
each IBUI Company as of the date hereof has been duly executed and
delivered by such IBUI Company and constitutes a valid and binding
obligation of such IBUI Company, enforceable against such IBUI Company
in accordance with its terms. Any Transaction Document executed and
delivered by each IBUI Company after the date hereof will be duly
executed and delivered by such IBUI Company and will constitute a
valid and binding obligation of such IBUI Company , enforceable
against such IBUI Company in accordance with its terms, except as
otherwise limited by bankruptcy, insolvency reorganization and other
laws affecting creditors rights generally, and except that the remedy
of specified performance or other equitable relief is available only
at the discretion of the court before which enforcement is sought.
6.3 VALIDITY OF CONTEMPLATED TRANSACTIONS
Except for compliance with (i) the Securities Act and the Exchange
Act and (ii) the filing of the Articles of Merger and Share Exchange
with the Secretary of State of the State of Nevada, neither the
execution and delivery by each IBUI Company of the respective
Transaction Documents to which it is or will be a party, nor the
performance of the Transactions to be performed by it, will require
any filing, consent or approval under or constitute a Default, or
result in a loss of material benefit under, (a) any Law or Court Order
to which any IBUI Company is subject, (b) the Charter Documents or
bylaws of any IBUI Company, (c) any other Contracts to which any IBUI
Company is a party or by which any of the IBUI Assets may be subject,
except for Defaults which would not have a Material Adverse Effect.
6.4 CAPITALIZATION AND STOCK OWNERSHIP
The total authorized capital stock of IBUI consists of 349,000,000
shares of IBUI Common Stock, par value $0.001 per share and 1,000,000
shares of preferred stock, par value $100.00 per share. Of such
authorized capital stock, the only issued and outstanding shares on
the date hereof are 267,236,029 shares of IBUI Common Stock and
10,000 shares of preferred stock. There are no existing options,
warrants, calls, commitments or other rights of any character
(including conversion or preemptive rights) relating to the
acquisition of any issued or unissued capital stock or other
securities of IBUI. The IBUI Disclosure Schedule sets forth, as of the
date hereof, as to each option or warrant, the holder, date of grant,
exercise price and number of shares subject thereto. All of the shares
of issued and outstanding shares of IBUI Common Stock are validly
issued, fully paid and non-assessable.
6.5 [Intentionally Omitted]
6.6 REGISTRATION STATEMENT; CONSENT SOLICITATION STATEMENT; PROSPECTUS
None of the information supplied or to be supplied by or on behalf
of any IBUI Company specifically for inclusion in the Registration
Statement will (except to the extent revised or superseded by
amendments or supplements contemplated hereby), at the time of
distribution to the IBUI Shareholders, contain any untrue statement of
a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading. None
of the information supplied or to be supplied by or on behalf of any
IBUI Company specifically for inclusion or incorporation by reference
in the Consent Solicitation Statement/Prospectus (as defined in
Section 7.1) will (except to the extent revised or superseded by
amendments or supplements contemplated hereby), at the date it (or any
such amendment or supplement) is mailed to the stockholders of RAI and
at the time of the RAI Stockholder Statement Meeting, 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.
6.7 IBUI SEC REPORTS; FINANCIAL STATEMENTS
IBUI has filed all required forms, reports, statements, schedules
and other documents with the SEC since March 31, 1998, including its
(a) Annual Reports on Form 10-KSB for the fiscal years ended June 30,
2000, 1999 and 1998, (b) all proxy statements relating to IBUI's
meetings of stockholders (whether annual or special) held since July
1999, and (c) all other reports or registration statements filed by
IBUI with the SEC since March 31, 1998 (collectively, the "IBUI SEC
Reports"). Each of such IBUI SEC Reports, at the time it was filed,
complied in all material respects with all applicable requirements of
the Securities Act and the Exchange Act, and with the forms and
Regulations of the SEC promulgated thereunder, and did not contain at
the time filed 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 financial statements,
including all related notes and schedules, contained in the IBUI SEC
Reports (or incorporated by reference therein) fairly present the
consolidated financial position of IBUI as at the respective dates
thereof and the consolidated results of operations and cash flows of
IBUI for the periods indicated in accordance with GAAP applied on a
consistent basis throughout the periods involved (except for changes
in accounting principles disclosed in the notes thereto) and subject
in the case of interim financial statements to normal year-end
adjustments and the absence of notes. For purposes of this Agreement,
the balance sheet of IBUI as of June 30, 2000 is referred to as the
"IBUI Balance Sheet" and the date thereof is referred to as the "IBUI
Balance Sheet Date."
6.8 TAXES
..
(a) Each IBUI Company (i) has filed (or, in the case
of Tax Returns not yet due, will file) with the appropriate
governmental agencies all material Tax Returns required to be
filed on or before the Effective Date and all such Tax Returns
filed were true, correct and complete in all material respects,
and (ii) has paid (or, in the case of Taxes not yet due, will
pay), all Taxes shown on such Tax Returns.
(b) Each IBUI Company has (i) duly paid or caused to
be paid all material Taxes and all Taxes shown on Tax Returns
that are or were due, except to the extent that a sufficient
reserve for Taxes has been reflected on the IBUI Balance Sheet
and (ii) provided a sufficient reserve on the IBUI Balance Sheet
for the payment of all Taxes not yet due and payable.
(c) No deficiency in respect of any Taxes which has
been assessed against any IBUI Company remains unpaid, except for
Taxes being contested in good faith, and IBUI has no knowledge of
any unassessed Tax deficiencies or of any audits or
investigations pending or threatened against IBUI with respect to
any Taxes.
(d) No IBUI Company has extended or waived the
application of any applicable statute of limitations of any
jurisdiction regarding the assessment or collection of any Tax or
any Tax Return.
(e) There are no liens for Taxes upon any assets of
any IBUI Company except for liens for current Taxes not yet due.
(f) Each IBUI Company has to its knowledge (i)
complied with all material provisions of the Code relating to the
withholding and payment of Taxes and (ii) has made all deposits
required by applicable Law to be made with respect to employees'
withholding and other payroll, employment or other withholding or
related Taxes.
(g) No IBUI Company is a party to any contract,
agreement, plan or arrangement that, individually or in the
aggregate, or when taken together with any payment that may be
made under this Agreement or any agreements contemplated hereby,
could give rise to the payment of any "excess parachute payment"
within the meaning of Section 280G of the Code.
(h) No IBUI Company is a party to any agreement
relating to the allocating or sharing of the payment of, or
liability for, Taxes for any period (or portion thereof).
(i) To IBUI's knowledge, no IBUI Company has ever been
a member of an affiliated group of corporations (within the
meaning of Section 1504 of the Code).
6.9 TITLE TO ASSETS AND RELATED MATTERS
Each IBUI Company has good and marketable title to its part of the
IBUI Assets, free from any Encumbrances except (a) any Encumbrance in
favor of IBUI, (b) items described in any notes to the consolidated
financial statements of IBUI contained in IBUI's Annual Report on Form
10-KSB included in the IBUI SEC Reports, (c) minor matters that would
not have a Material Adverse Effect, (d) constitutional and statutory
liens arising from the obligation to pay for the provision of
materials or services not yet in Default and Taxes not yet due and (e)
IBUI Assets transferred among the IBUI Companies.
6.10 REAL PROPERTY
All material real estate leased by any IBUI Company as of the date
hereof and used in the operation of the IBUI Business are disclosed in
the IBUI Financial Statements. As of the date hereof, none of the IBUI
Companies owns any real property.
6.11 SUBSIDIARIES
As of the date hereof none of the IBUI Companies owns,
directly or indirectly, any interest or investment (whether equity or
debt) in any corporation, partnership, limited liability company,
business trust, joint venture or other legal entity. IBUI (or another
IBUI Company) owns all of the issued and outstanding shares of capital
stock of each IBUI Subsidiary, except that Global GPP Corp. is eighty
percent (80%) owned by IBUI. There are no existing options, warrants,
calls, commitments or other rights of any character (including
conversion or preemptive rights) relating to the acquisition or voting
of any issued or unissued capital stock or other securities of any
IBUI Subsidiary. All of the shares of capital stock of each IBUI
Subsidiary are duly and validly authorized and issued, fully paid and
non-assessable.
6.12 LEGAL PROCEEDINGS; COMPLIANCE WITH LAW; GOVERNMENTAL PERMITS
..
(a) There is no Litigation that is pending or, to
IBUI's knowledge, threatened against any IBUI Company that would
have a Material Adverse Effect. Each IBUI Company is and has
been in compliance with all applicable Laws, including
Environmental Laws, except where the failure to be in compliance
would not have a Material Adverse Effect. There has been no
Default under any Laws applicable to any IBUI Company, including
Environmental Laws, except for any Defaults that would not have a
Material Adverse Effect. There has been no Default with respect
to any Court Order applicable to any IBUI Company. No IBUI
Company has received any written notice and, to the knowledge of
IBUI, no other communication has been received to the effect that
it is not in compliance with any applicable Laws, and IBUI has no
reason to believe that any presently existing circumstances are
likely to result in violations of any applicable Laws, except to
the extent that such failures to comply or violations would not
have a Material Adverse Effect.
(b) To IBUI's knowledge, there is no Environmental
Condition at any property presently or formerly owned or leased
by an IBUI Company which is reasonably likely to have a Material
Adverse Effect.
(c) The IBUI Companies have all Governmental Permits
required in connection with the operation of their respective
businesses as now being conducted, all of which are in full force
and effect, except where the failure to obtain any such
Governmental Permit or of any such Governmental Permit to be in
full force and effect, would not have a Material Adverse Effect.
Each IBUI Company has complied, in all material respects, with
all of its Governmental Permits, except where the failure to so
comply would not have a Material Adverse Effect
6.13 CONTRACTS AND COMMITMENTS
The IBUI Disclosure Schedule describes:
(a) Contracts (excluding letters of intent and agreements
in principle) involving IBUI in amounts in excess of $100,000.
(b) All employment, consulting, management, severance or
agency Contracts providing for annual payments of at least
$100,000 (y) with any executive officers or directors of IBUI, or
(z) allowing the other party to terminate and receive payment
based on the execution of this Agreement and consummation of the
Transactions, and (ii) any employment agreements with any Person
to whom IBUI makes annual salary payments in excess of $100,000.
(c) All Contracts limiting the freedom of IBUI to compete
in any line of business, or with any Person, or in any geographic
area or market.
Each Contract providing for payments in excess of $100,000 to which
IBUI is a party (i) is legal, valid, binding and enforceable against
IBUI except as otherwise limited by bankruptcy, insolvency,
reorganization and other laws affecting creditors' rights generally,
and except that the remedy of specific performance or other equitable
relief is available only at the discretion of the court before which
enforcement is sought, and (ii) IBUI, and to IBUI's knowledge, any
other party, is not in Default under any such Contract, other than in
the case of (i) and (ii) above where the failure to be so would not
have a Material Adverse Effect.
6.14 INITIAL LISTING REQUIREMENT
IBUI exceeds the Initial Listing Requirements for the NASDAQ Small
Cap Market, as defined in the listing requirements for the NASDAQ
SmallCap Market, except for the minimum required bid price for its
common stock.
6.15 EMPLOYEE RELATIONS
No IBUI Company is (a) a party to, involved in or, to IBUI's
knowledge, threatened by, any labor dispute or unfair labor practice
charge, or (b) currently negotiating any collective bargaining
agreement, and IBUI has not experienced any work stoppage during the
last three years.
6.16 ERISA
(a) The IBUI Disclosure Schedule contains a complete
list of all Benefit Plans sponsored or maintained by any IBUI
Company or under which any IBUI Company may be obligated for its
employees, directors or independent contractors ("IBUI Benefit
Plans"). IBUI has delivered or made available to RAI (i) accurate
and complete copies of all IBUI Benefit Plan documents and of any
summary plan descriptions, summary annual reports and insurance
contracts relating thereto, (ii) accurate and complete detailed
summaries of all unwritten IBUI Benefit Plans, (iii) accurate and
complete copies of the most recent financial statements and
actuarial reports with respect to all IBUI Benefit Plans for
which financial statements or actuarial reports are required or
have been prepared and (iv) accurate and complete copies of all
annual reports for all IBUI Benefit Plans (for which annual
reports are required) prepared within the last two years.
(b) All IBUI Benefit Plans conform in all material
respects to, and are being administered and operated in material
compliance with, the requirements of ERISA, the Code and all
other applicable Laws, including applicable Laws of foreign
jurisdictions. There have not been any "prohibited transactions,"
as such term is defined in Section 4975 of the Code or Section
406 of ERISA involving any of the IBUI Benefit Plans, that could
subject IBUI to any material penalty or tax imposed under the
Code or ERISA.
(c) Any IBUI Benefit Plan that is intended to be
qualified under Section 401(a) of the Code and exempt from tax
under Section 501(a) of the Code has been determined by the
Internal Revenue Service to be so qualified, and such
determination remains in effect and has not been revoked. Nothing
has occurred since the date of any such determination that is
reasonably likely to affect adversely such qualification or
exemption, or result in the imposition of excise taxes or income
taxes on unrelated business income under the Code or ERISA with
respect to any IBUI Benefit Plan.
(d) (i) No IBUI Company has current or contingent
obligation to contribute to any multiemployer plan (as defined in
Section 3(37) of ERISA) and (ii) no IBUI Company nor any entity
that has been treated as a single employer with any IBUI Company
under Sections 414(b), (c), (m) or (o) of the Code, has any
liability, contingent or otherwise, under Title IV of ERISA or
Section 412 of the Code.
(e) There are no pending or, to the knowledge of IBUI,
threatened claims by or on behalf of any IBUI Benefit Plans, or
by or on behalf of any individual participants or beneficiaries
of any IBUI Benefit Plans, alleging any breach of fiduciary duty
on the part of any IBUI Company or any of the officers, directors
or employees of any IBUI Company under ERISA or any other
applicable Regulations, or claiming benefit payments other than
those made in the ordinary operation of such plans, or alleging
any violation of any other applicable Laws. To IBUI's knowledge,
the IBUI Benefit Plans are not the subject of any investigation,
audit or action by the Internal Revenue Service, the Department
of Labor or the Pension Benefit Guaranty Corporation ("PBGC").
Each IBUI Company has made all required contributions under the
IBUI Benefit Plans including the payment of any premiums payable
to the PBGC and other insurance premiums.
(f) With respect to any IBUI Benefit Plan that is an
employee welfare benefit plan (within the meaning of Section 3(1)
of ERISA) (an "IBUI Welfare Plan"), (i) each IBUI Welfare Plan
for which contributions are claimed as deductions under any
provision of the Code is in material compliance with all
applicable requirements pertaining to such deduction, (ii) with
respect to any welfare benefit fund (within the meaning of
Section 419 of the Code) related to an IBUI Welfare Plan, there
is no disqualified benefit (within the meaning of Section 4976(b)
of the Code) that would result in the imposition of a tax under
Section 4976(a) of the Code, and (iii) any IBUI Benefit Plan that
is a group health plan (within the meaning of Section 4980B(g)(2)
of the Code) complies, and in each and every case has complied,
with all of the material requirements of Section 4980B of the
Code, ERISA, Title XXII of the Public Health Service Act and the
applicable provisions of the Social Security Act.
(g) The execution of this Agreement and the
performance of the Transactions will not (either alone or in
combination with the occurrence of any additional or subsequent
events) constitute an event under any IBUI Benefit Plan that will
or may result in any payment (whether of severance pay or
otherwise), acceleration, forgiveness of indebtedness, vesting,
distribution, increase in benefits or obligation to fund benefits
with respect to any current or former employee, director or
consultant of any IBUI Company.
6.17 PATENTS, TRADEMARKS, ETC.
To IBUI's knowledge, no IBUI Company infringes upon or unlawfully or
wrongfully use any Intellectual Property owned or claimed by another
Person and no Person infringes on or wrongfully uses any Intellectual
Property owned or claimed by any IBUI Company, except for those
situations that would not have a Material Adverse Effect. The IBUI
Companies own or have valid rights to use all Intellectual Property
used in the conduct of their business except where the failure to have
valid rights to use such Intellectual Property will not have a
Material Adverse Effect, free and clear of all Encumbrances, other
than Encumbrances which would not have a Material Adverse Effect.
6.18 ABSENCE OF CERTAIN CHANGES
Since the IBUI Balance Sheet Date, the IBUI Companies have
conducted the IBUI Business in the ordinary course, as of the date
hereof, there has not been:
(a) any Material Adverse Effect on the IBUI Business
or, in the aggregate, Liabilities of the IBUI Companies;
(b) any distribution or payment declared or made in
respect of IBUI's capital stock by way of dividends, purchase or
redemption of shares or otherwise;
(c) any increase in the compensation payable or to
become payable to any current director or officer of any IBUI
Company, except for merit and seniority increases for employees
made in the ordinary course of business, nor any material change
in any existing employment, severance, consulting arrangements or
any IBUI Benefit Plan;
(d) any sale, assignment or transfer of any IBUI
Assets, or any additions to or transactions involving any IBUI
Assets, other than those made in the ordinary course of business
or those solely involving the IBUI Companies;
(e) other than in the ordinary course of business, any
waiver or release of any material claim or right or cancellation
of any material debt held by any IBUI Company;
(f) any change in practice with respect to Taxes, or
any election, change of any election, or revocation of any
election with respect to Taxes, or any settlement or compromise
of any dispute involving a Tax liability;
(g) (i) any creation, assumption or maintenance of any
long-term debt or any short-term debt for borrowed money other
than under existing notes payable, lines of credit or other
credit facility or in the ordinary course of business (ii) any
assumption, granting of guarantees, endorsements or otherwise
becoming liable or responsible (whether directly, contingently or
otherwise) for the obligations of any other Person or (iii) any
loans, advances or capital contributions to, or investments in,
any other Person except its Wholly-Owned Subsidiaries;
(h) any material agreement, commitment or contract,
except agreements, commitments or contracts for the purchase,
sale or lease of goods or services in the ordinary course of
business;
(i) other than in the ordinary course of business, any
authorization, recommendation, proposal or announcement of an
intention to authorize, recommend or propose, or enter into any
Contract with respect to, any (i) plan of liquidation or
dissolution, (ii) acquisition of a material amount of assets or
securities, (iii) disposition or Encumbrance of a material amount
of assets or securities, (iv) merger or consolidation or (v)
material change in its capitalization; or
(j) any change in accounting or Tax procedure or practice.
6.19 CORPORATE RECORDS
The minute books of each IBUI Company contain accurate, complete
and current copies of all Charter Documents and of all minutes of
meetings, resolutions and other proceedings of its Board of Directors
and stockholders.
6.20 FINDER'S FEES
No Person is or will be entitled to any commission, finder's fee or
other payment in connection with the Transactions based on
arrangements made by or on behalf of IBUI.
6.21 REORGANIZATION
No IBUI Company has not or, as of the Closing Date, will have not
taken any action or failed to take any action which action or failure
would result in the failure of the Merger and Share Exchange to
qualify as a reorganization within the meaning of Code Section 368(a).
IBUI has no knowledge of any fact or circumstance that is reasonably
likely to prevent the Merger and Share Exchange from qualifying as a
reorganization within the meaning of Code Section 368(a).
ARTICLE 7
REGISTRATION STATEMENT AND CONSENT
SOLICITATION STATEMENT
7.1 REGISTRATION STATEMENT AND CONSENT SOLICITATION STATEMENT
In connection with the subject Merger and Share Exchange and the
solicitation of stockholder consents thereto and pursuant to Rule 145,
RAI shall file a Registration Statement on Form S-4 (the "Registration
Statement"), with the Securities and Exchange Commission (the "SEC")
pursuant to the Securities Act of 1933, as amended (the "Securities
Act"), the Registration Statement to include as Part I thereof the
prospectus and consent solicitation statement to be transmitted to the
IBUI Stockholders (such prospectus and consent solicitation statement,
as from time to time amended and/or supplemented, hereinafter referred
to as the "Consent Solicitation Statement/Prospectus") (a) with
respect to the solicitation of consents from the IBUI Stockholders to
the subject merger and share exchange pursuant to Section 92A.120 of
the Nevada Law and Section 14(a) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and (b) with respect to the
distribution of the shares of RAI Common Stock to the IBUI
Stockholders in exchange for their shares of the IBUI Common Stock
pursuant to the terms of this Agreement, the subject Merger and Share
Exchange, the Securities Act and the rules and regulations promulgated
thereunder. In connection with the preparation, utilization and/or
distribution of the Consent Solicitation Statement/Prospectus to be
issued and distributed to the IBUI Stockholders in connection with the
Merger and Share Exchange and the preparation and utilization of the
Registration Statement of which the Consent Solicitation
Statement/Prospectus constitutes Part I thereof, the parties shall
follow the procedures as provided in this Section 7.
(a) The parties hereto shall cooperate in the
preparation thereof consistent with the applicable requirements
of Nevada Law, the Securities Act and the Exchange Act and the
rules and regulations promulgated under the Securities Act and
the Exchange Act by the SEC; and, without limiting the generality
of the foregoing, each of RAI and IBUI shall promptly supply to
the other any and all information and material (relating to
itself and/or the subject transaction) as may be requested or
required in connection with the preparation and filing of the
Registration Statement, including, without limitation, all
information concerning their respective officers, directors and
principal stockholders that is reasonably requested for inclusion
in the Consent Solicitation Statement/Prospectus; and each shall
take and perform such other and further acts and actions as shall
be necessary or appropriate to cause the prompt preparation,
completion, filing, review, finalization and clearance of the
Registration Statement.
(b) Subject to the Registration Statement being
declared effective by the SEC, the Consent Solicitation
Statement/Prospectus, and any other communication required by the
Exchange Act or the rules and regulations promulgated thereunder
or reasonably requested by RAI, shall be mailed by IBUI or its
transfer agent to the IBUI Stockholders as soon after such
effective date as is reasonably possible. Subsequent thereto,
IBUI shall transmit to the IBUI Stockholders such amended and/or
supplemental consent solicitation materials as may be necessary,
in light of subsequent developments or otherwise, to render the
Consent Solicitation Statement/Prospectus, as so amended or
supplemented, not false or misleading with respect to any
material fact and so as not to omit to state any information
necessary to make the statements made, within the context made,
not misleading. Prior to the Effective Date (or earlier
termination of this Agreement) neither party hereto shall
distribute any material (other than the Consent Solicitation
Statement/Prospectus as herein provided) which might constitute,
or be deemed to constitute, a "prospectus" relating to the Merger
and Share Exchange within the meaning of the Securities Act
without the prior written consent of all of the parties hereto in
each instance.
(c) IBUI hereby authorizes the utilization by RAI in
the Registration Statement, or in any filing with a state
securities administrator, of all information concerning IBUI
either provided to RAI by IBUI in connection with or contained in
the Consent Solicitation Statement/Prospectus and/or contained in
any filings heretofore made by IBUI pursuant to the Securities
Act and/or the Exchange Act. IBUI shall promptly advise RAI if
at any time any of such information or material is or becomes
incorrect, inaccurate or incomplete in any material respect and,
in connection therewith, IBUI shall provide RAI with such
information and material as shall be needed to correct any such
inaccuracy or omission. RAI shall promptly advise IBUI if at any
time any of the information or material contained in the
Registration Statement and supplied by RAI is or becomes
incorrect, inaccurate or incomplete in any material respect. RAI
shall cause the preparation, review, clearance, approval and
distribution of such amended or supplemented material as shall be
necessary to correct or eliminate any such inaccuracies and/or
omissions as provided in this Section 12.
(d) Each of RAI and IBUI covenants and warrants to the
other that any and all information and/or material supplied by it
to the other and/or in connection with the Registration Statement
and/or the within transactions (i) will, at the time made and at
each Relevant Date (as hereinafter defined), be true and correct
in all material respects; (ii) will comply in all material
respects with the requirements of the Securities Act and the
Exchange Act and the rules and regulations promulgated thereunder
by the SEC; and (iii) will not contain any statement which, at
the time, and at each Relevant Date and in light of the
circumstances under which it is made, is false or misleading with
respect to any material fact, or which omits to state any
material fact necessary in order to make the statements therein
made not false or misleading. For the purposes of this
Agreement, the term "Relevant Date" shall be and mean each of (x)
the effective date of the Registration Statement, (y) the mailing
date of the Consent Solicitation Statement/Prospectus and (z) the
Effective Date. Each of RAI and IBUI specifically agrees to
indemnify and hold harmless the other (and their respective
officers, directors, employees, agents and representatives) from
and against any and all costs, expenses, losses, demands, claims
and liabilities of every kind, nature and description (including
reasonable attorneys' fees) arising out of, or relating to any
breach or anticipatory breach by it of its duties and obligations
pursuant to this Section 12(d) hereof.
7.2 REGISTRATION EXPENSES
..
(a) All fees and expenses incident to the performance
of or compliance with this Agreement by RAI shall be borne by RAI
whether or not the Registration Statement is filed or becomes
effective and whether or not any Registrable Securities are sold
pursuant to the Registration Statement. The fees and expenses
referred to in the foregoing sentence shall include, without
limitation, (i) all registration and filing fees (including,
without limitation, fees and expenses (A) with respect to filings
required to be made with the Nasdaq Stock Market and (B) in
compliance with state securities or Blue Sky laws (ii) printing
expenses (including, without limitation, expenses of printing
certificates for Registrable Securities and of printing
prospectuses if the printing of prospectuses is requested by the
Majority Holders) (iii) messenger, telephone and delivery
expenses, (iv) fees and disbursements of counsel for RAI and, (v)
fees and disbursements of all independent certified public
accountants, (vi) Securities Act liability insurance, if RAI so
desires such insurance, and (vii) fees and expenses of all other
Persons retained by RAI in connection with the consummation of
the transactions contemplated by this Article VII. In addition,
RAI shall be responsible for all of its internal expenses
incurred in connection with the consummation of the transactions
contemplated by this Agreement (including, without limitation,
all salaries and expenses of its officers and employees
performing legal or accounting duties), the expense of any annual
audit and, the fees and expenses incurred in connection with the
listing of the Registrable Securities on any securities exchange
or market on which similar securities issued by RAI are then
listed.
(b) Notwithstanding anything to the contrary herein,
IBUI shall be responsible for the cost of the fees and expenses
of its attorneys and accountants.
7.3 INDEMNIFICATION
(a) RAI shall, notwithstanding termination of this
Agreement and without limitation as to time, indemnify and hold
harmless IBUI and each of its officers and directors and
employees, each Person who controls IBUI (within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange
Act) and the officers, directors, agents and employees of each
such controlling Person, to the fullest extent permitted by
applicable law, from and against any and all losses, claims,
damages, liabilities, costs (including, without limitation, costs
of preparation and attorneys' and expert fees) and expenses
(collectively, "Losses"), as incurred, arising out of or relating
to any breach of any warranty or representation contained herein,
any untrue or alleged untrue statement of a material fact
contained in the Registration Statement or the Consent
Solicitation Statement/Prospectus or arising out of or relating
to any omission or alleged omission of a material fact required
to be stated therein or necessary to make the statements therein
(in the case of any Prospectus or form of prospectus or
supplement thereto, in light of the circumstances under which
they were made) not misleading, except solely to the extent that
(i) such untrue statements or omissions are based solely upon
information regarding IBUI furnished in writing to RAI by or on
behalf of IBUI expressly for use therein, which information was
relied on by RAI for use therein or (ii) such information relates
to IBUI or IBUI's proposed method of distribution of Registrable
Securities and was furnished in writing to RAI by or on behalf of
IBUI expressly for use therein. RAI shall notify the IBUI
promptly of the institution, threat or assertion of any
Proceeding of which RAI is aware in connection with the
transactions contemplated by this Agreement.
(b) In connection with the Registration Statement,
IBUI shall furnish to RAI in writing such information as RAI
reasonably requests for use in connection with the Registration
Statement or any Prospectus and agrees to indemnify and hold
harmless RAI, their directors, officers, agents and employees,
each Person who controls RAI (within the meaning of Section 15 of
the Securities Act and Section 20 of the Exchange Act), and the
directors, officers, agents or employees of such controlling
Persons, to the fullest extent permitted by applicable law, from
and against all Losses (as determined by a court of competent
jurisdiction in a final judgment not subject to appeal or review)
arising solely out of or based solely upon any untrue statement
of a material fact contained in the information provided to RAI
as provided for hereinabove, and only to the extent, that (i)
such untrue statement or omission is contained in any information
furnished in writing by IBUI to RAI specifically for inclusion in
the Registration Statement or such Prospectus and such
information was relied upon by RAI for use in the Registration
Statement, such Prospectus or such form of prospectus or (ii)
such information relates to IBUI or IBUI's proposed method of
distribution of Registrable Securities and was furnished in
writing by or on behalf of IBUI to RAI specifically for inclusion
in the Registration Statement or such Prospectus and such
information was relied upon by RAI for use in the Registration
Statement, such Prospectus or such form of prospectus.
(c) If any Proceeding shall be brought or asserted
against any Person entitled to indemnity hereunder (a
"Registration Indemnified Party"), such Registration Indemnified
Party promptly shall notify the Person from whom indemnity is
sought (the "Registration Indemnifying Party") in writing, and
the Registration Indemnifying Party shall assume the defense
thereof, including the employment of counsel reasonably
satisfactory to the Registration Indemnified Party and the
payment of all fees and expenses incurred in connection with
defense thereof; provided, that the failure of any Registration
Indemnified Party to give such notice shall not relieve the
Registration Indemnifying Party of its obligations or liabilities
pursuant to this Article VII, except (and only) to the extent
that it shall be finally determined by a court of competent
jurisdiction (which determination is not subject to appeal or
further review) that such failure shall have proximately and
materially adversely prejudiced the Registration Indemnifying Party.
A Registration Indemnified Party shall have the right to employ
separate counsel in any such Proceeding and to participate in the
defense thereof, but the fees and expenses of such counsel shall
be at the expense of such Registration Indemnified Party or
Parties unless: (1) the Registration Indemnifying Party has
agreed to pay such fees and expenses; or (2) the Registration
Indemnifying Party shall have failed promptly to assume the
defense of such Proceeding and to employ counsel reasonably
satisfactory to such Registration Indemnified Party in any such
Proceeding; or (3) the named parties to any such Proceeding
(including any impleaded parties) include both such Registration
Indemnified Party and the Registration Indemnifying Party, and
such Registration Indemnified Party shall have been advised by
counsel that a conflict of interest is likely to exist if the
same counsel were to represent such Registration Indemnified
Party and the Registration Indemnifying Party (in which case, if
such Registration Indemnified Party notifies the Registration
Indemnifying Party in writing that it elects to employ separate
counsel at the expense of the Registration Indemnifying Party,
the Registration Indemnifying Party shall not have the right to
assume the defense thereof and such counsel shall be at the
expense of the Registration Indemnifying Party). The
Registration Indemnifying Party shall not be liable for any
settlement of any such Proceeding effected without its written
consent, which consent shall not be unreasonably withheld. No
Registration Indemnifying Party shall, without the prior written
consent of the Registration Indemnified Party, effect any
settlement of any pending Proceeding in respect of which any
Registration Indemnified Party is a party, unless such settlement
includes an unconditional release of such Registration
Indemnified Party from all liability on claims that are the
subject matter of such Proceeding.
All fees and expenses of the Registration Indemnified Party to
which the Registration Indemnified Party is entitled hereunder
(including reasonable fees and expenses to the extent incurred in
connection with investigating or preparing to defend such
Proceeding in a manner not inconsistent with this Section) shall
be paid to the Registration Indemnified Party, as incurred,
within ten (10) Business Days of written notice thereof to the
Registration Indemnifying Party.
(d) If a claim for indemnification under Section
7.3(a) or 7.3(b) is unavailable to a Registration Indemnified
Party or is insufficient to hold such Registration Indemnified
Party harmless for any Losses in respect of which this would
apply by its terms (other than by reason of exceptions provided
in this Section 7.3(d), then each Registration Indemnifying
Party, in lieu of indemnifying such Registration Indemnified
Party, shall contribute to the amount paid or payable by such
Registration Indemnified Party as a result of such Losses, (i) in
such proportion as is appropriate to reflect the relative
benefits received by the Registration Indemnifying Party on the
one hand and the Registration Indemnified Party on the other from
the distribution of the Registrable Securities or (ii) if the
allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above
but also the relative fault of the Registration Indemnifying
Party and Registration Indemnified Party in connection with the
actions, statements or omissions that resulted in such Losses as
well as any other relevant equitable considerations. The
relative fault of such Registration Indemnifying Party and
Registration Indemnified Party shall be determined by reference
to, among other things, whether any action in question, including
any untrue or alleged untrue statement of a material fact or
omission or alleged omission of a material fact, has been taken
or made by, or relates to information supplied by, such
Registration Indemnifying Party or Registration Indemnified
Party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action,
statement or omission. The amount paid or payable by a party as
a result of any Losses shall be deemed to include, subject to the
limitations set forth in Section 7.3(c), any attorneys' or other
fees or expenses incurred by such party in connection with any
Proceeding to the extent such party would have been indemnified
for such fees or expenses if the indemnification provided for in
this Section was available to such party.
The parties hereto agree that it would not be just and equitable
if contribution pursuant to this Section 7.3(d) were determined
by pro rata allocation or by any other method of allocation that
does not take into account the equitable considerations referred
to in the immediately preceding paragraph. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f)
of the Securities Act) shall be entitled to contribution from any
Person who was not guilty of such fraudulent misrepresentation.
(e) No Holder shall be required to contribute, in the
aggregate, any amount in excess of the amount by which the
proceeds actually received by such Holder from the sale of the
Registrable Securities subject to the Proceeding exceeds the
amount of any damages that any person has otherwise been required
to pay by reason of such Holder's untrue or alleged untrue
statement or omission or alleged omission.
(f) The indemnity and contribution agreements
contained in this Section are in addition to any liability that
the Indemnifying Parties may have to the Indemnified Parties.
7.4 RULE 144
RAI shall file the reports required to be filed by it under the
Securities Act and the Exchange Act in a timely manner and, if at any
time RAI is not required to file such reports, they will, upon the
request of any Holder, make publicly available other information so
long as necessary to permit sales of its securities pursuant to Rule
144. RAI further covenants that it will take such further action as
any Holder may reasonably request, all to the extent required from
time to time to enable such Holder to sell Registrable Securities
without registration under the Securities Act within the limitation of
the exemptions provided by Rule 144. Upon the request of any Holder,
RAI shall deliver to such Holder a written certification of a duly
authorized officer as to whether it has complied with such
requirements.
ARTICLE 8
COVENANTS OF THE PARTIES
8.1 PROXY STATEMENT
RAI and IBUI will each prepare and file with the SEC as soon as
reasonably practicable after the date hereof a proxy statement to be
filed under the Exchange Act by such Party and to be distributed by
such Party in connection with such Party's Stockholder Meeting (each,
a "Proxy Statement, and together, the "Proxy Statements"). Each
Party shall allow the other Party the opportunity to review and
comment on the Proxy Statement prior to filing with the SEC. Each
Party will furnish to the other Party all information concerning
itself and its Subsidiaries as the other Party or its counsel may
reasonably request and that is required or customary for inclusion in
the such Proxy Statement. Notwithstanding anything to the contrary
contained in this Agreement, IBUI shall bear all expenses incurred by
RAI in the preparation, filing and distribution of the Proxy
Statement.
8.2 NO SOLICITATION
..
(a) From and after the date hereof, RAI, without the
prior written consent of IBUI, will not, and will not authorize
or permit any of its Subsidiaries or its Party Representatives
to, directly or indirectly, solicit, initiate or encourage
(including by way of furnishing information) or take any other
action to facilitate knowingly any inquiries or the making of any
proposal which constitutes or may reasonably be expected to lead
to an Acquisition Proposal (as defined below) from any Person, or
engage in any discussion or negotiations relating thereto or
accept any Acquisition Proposal; provided, however, that
notwithstanding any other provision hereof, RAI may at any time
prior to the time RAI's stockholders shall have voted to approve
this Agreement, engage in discussions or negotiations with a
third party who (without any solicitation, initiation,
encouragement, discussion or negotiation, directly or indirectly,
by or with any RAI Company or its Party Representatives after the
date hereof) seeks to initiate such discussions or negotiations
and may furnish such third party information concerning RAI and
its Business and Assets if, and only to the extent that, (i)(x)
the third party has first made an Acquisition Proposal that is
(as determined in good faith by the RAI Board of Directors after
consultation with its legal and financial advisor) financially
superior to the Transactions and has demonstrated that the funds
necessary for the Acquisition Proposal are reasonably likely to
be available and the Acquisition Proposal is reasonably capable
of consummation in accordance with its terms (as determined in
good faith in each case by RAI's Board of Directors after
consultation with its legal and financial advisors) and (y) RAI's
Board of Directors shall conclude in good faith, after
considering applicable provisions of applicable Law, on the basis
of advice of its counsel, that such action is necessary for the
Board of Directors to act in a manner consistent with its
fiduciary duties under applicable Law and (ii) prior to
furnishing such information to or entering into discussions or
negotiations with such Person, RAI (x) provides prompt notice to
IBUI to the effect that it is furnishing information to or
entering into discussions or negotiations with such Person and
(y) receives from such Person an executed confidentiality
agreement in reasonably customary form. RAI shall immediately
cease and terminate any existing solicitation, initiation,
encouragement, activity, discussion or negotiation with any
Persons conducted heretofore by RAI or its Party Representatives
with respect to the foregoing. RAI shall not release any third
party from, or waive any provision of, any standstill agreement
to which it is a party or any confidentiality agreement between
it and another Person who has made an Acquisition Proposal,
unless such Person has made an Acquisition Proposal meeting the
criteria set forth in clause (a)(i)(x) above and RAI's Board of
Directors shall conclude in good faith, after considering
applicable provisions of applicable Law, on the basis of advice
of its counsel, that such action is necessary for the Board of
Directors to act in a manner consistent with its fiduciary duties
under applicable Law. RAI shall immediately notify IBUI orally
(with a prompt written confirmation) of any such inquiries,
offers or proposals (including the terms and conditions of any
such proposal and the identity of the Person making it and shall
provide copies of any such written inquiries, offers or
proposals), shall keep IBUI informed of the status and details of
any such inquiry, offer or proposal (and agrees that any material
modification of the terms of an inquiry or proposal shall
constitute a new inquiry or proposal), and shall give IBUI two
(2) business days' advance notice of any agreement to be entered
into with, or any information to be supplied to, any Person
making such inquiry, offer or proposal (no such agreement, other
than a confidentiality agreement as set forth in this Section, to
be executed or agreed prior to the termination of this Agreement
in accordance with its terms). As used herein, "Acquisition
Proposal" shall mean a bona fide proposal or offer (other than by
IBUI) for a tender or exchange offer, merger, consolidation or
other business combination involving RAI or any Subsidiary
thereof, of any proposal to acquire in any manner a substantial
equity interest in, or a substantial amount of the assets of, RAI
or any such Subsidiary.
(b) From and after the date hereof, IBUI, without the
prior written consent of RAI, will not, and will not authorize or
permit any of its Subsidiaries or its Party Representatives to,
directly or indirectly, solicit, initiate or encourage (including
by way of furnishing information) or take any other action to
facilitate knowingly any inquiries or the making of any proposal
which constitutes or may reasonably be expected to lead to an
Acquisition Proposal (as defined above) from any Person, or
engage in any discussion or negotiations relating thereto or
accept any Acquisition Proposal; provided, however, that
notwithstanding any other provision hereof, IBUI may at any time
prior to the time the Shareholders shall have voted to approve
this Agreement, engage in discussions or negotiations with a
third party who (without any solicitation, initiation,
encouragement, discussion or negotiation, directly or indirectly,
by or with IBUI or its Party Representatives after the date
hereof) seeks to initiate such discussions or negotiations and
may furnish such third party information concerning IBUI and its
Business and Assets if, and only to the extent that, (i)(x) the
third party has first made an Acquisition Proposal that is (as
determined in good faith by the IBUI Board of Directors after
consultation with its legal and financial advisor) financially
superior to the Transactions and has demonstrated that the funds
necessary for the Acquisition Proposal are reasonably likely to
be available and the Acquisition Proposal is reasonably capable
of consummation in accordance with its terms (as determined in
good faith in each case by IBUI's Board of Directors after
consultation with its legal and financial advisors) and (y)
IBUI's Board of Directors shall conclude in good faith, after
considering applicable provisions of applicable Law, on the basis
of advice of its counsel, that such action is necessary for the
Board of Directors to act in a manner consistent with its
fiduciary duties under applicable Law and (ii) prior to
furnishing such information to or entering into discussions or
negotiations with such Person, IBUI (x) provides prompt notice to
RAI to the effect that it is furnishing information to or
entering into discussions or negotiations with such Person and
(y) receives from such Person an executed confidentiality
agreement in reasonably customary form. IBUI shall immediately
cease and terminate any existing solicitation, initiation,
encouragement, activity, discussion or negotiation with any
Persons conducted heretofore by IBUI or its Party Representatives
with respect to the foregoing. IBUI shall not release any third
party from, or waive any provision of, any standstill agreement
to which it is a party or any confidentiality agreement between
it and another Person who has made an Acquisition Proposal,
unless such Person has made an Acquisition Proposal meeting the
criteria set forth in clause (a)(i)(x) above and IBUI's Board of
Directors shall conclude in good faith, after considering
applicable provisions of applicable Law, on the basis of advice
of its counsel, that such action is necessary for the Board of
Directors to act in a manner consistent with its fiduciary duties
under applicable Law. IBUI shall immediately notify RAI orally
(with a prompt written confirmation) of any such inquiries,
offers or proposals (including the terms and conditions of any
such proposal and the identity of the Person making it and shall
provide copies of any such written inquiries, offers or
proposals), shall keep RAI informed of the status and details of
any such inquiry, offer or proposal (and agrees that any material
modification of the terms of an inquiry or proposal shall
constitute a new inquiry or proposal) , and shall give RAI two
(2) business days' advance notice of any agreement to be entered
into with, or any information to be supplied to, any Person
making such inquiry, offer or proposal (no such agreement, other
than a confidentiality agreement as set forth in this Section, to
be executed or agreed prior to the termination of this Agreement
in accordance with its terms).
8.3 NOTIFICATION OF CERTAIN MATTERS
Each of RAI and IBUI shall give prompt notice to each other of the
following:
(a) the occurrence or nonoccurrence of any event whose
occurrence or nonoccurrence would be likely to cause either (i)
any representation or warranty contained in this Agreement to be
untrue or inaccurate in any material respect at any time from the
date hereof to the Effective Date, or (ii) directly or
indirectly, any Material Adverse Effect;
(b) any material failure of such Party, or any
officer, director, employee or agent of any thereof, to comply
with or satisfy any covenant, condition or agreement to be
complied with or satisfied by it hereunder; and
(c) any facts relating to such Party which would make
it necessary or advisable to amend the Proxy Statement in order
to make the statements therein not misleading or to comply with
applicable Law; provided, however, that the delivery of any
notice pursuant to this Section 8.3 shall not limit or otherwise
affect the remedies available hereunder to the Party receiving
such notice.
8.4 ACCESS TO INFORMATION
(a) From the date hereof to the Effective Date, RAI
and IBUI shall, and shall cause its respective Subsidiaries, and
its officers, directors, employees, auditors, counsel and agents
to afford the officers, employees, auditors, counsel, financial
advisors and agents of the other Party complete access at all
reasonable times to such Party's and its Subsidiaries' officers,
employees, auditors, counsel, agents, properties, offices and
other facilities and to all of their respective books and
records, and shall furnish the other with all financial,
operating and other data and information as such other Party may
reasonably request.
(b) All information so received from the other Party
shall be deemed received pursuant to the confidentiality
agreement provisions in the Letter of Intent dated May 10, 2001
heretofore executed and delivered by IBUI and RAI (the
"Confidentiality Agreement"), and each such Party shall, and
shall cause its Subsidiaries and each of its and their respective
officers, directors, employees, auditors, counsel, financial
advisors and agents ("Party Representatives"), to comply with the
provisions of the Confidentiality Agreement with respect to such
information. The provisions of the Confidentiality Agreement are
hereby incorporated herein by reference with the same effect as
if fully set forth herein.
8.5 PUBLIC ANNOUNCEMENTS
RAI and IBUI (a) shall use all reasonable efforts to develop a
joint communications plan and each Party shall use all reasonable
efforts to ensure that all press releases and other public statements
with respect to the Transactions shall be consistent with such joint
communications plan or, to the extent inconsistent therewith, shall
have received the prior written approval of the other and (b) before
issuing any press release or otherwise making any public statements
with respect to the Transactions, will consult with each other as to
its form and substance and shall not issue any such press release or
make any such public statement prior to such consultation, except for
each of (a) and (b) above as may be required by Law (it being agreed
that the Parties hereto are entitled to disclose all requisite
information concerning the Transactions in any filings required with
the SEC) or the rules and regulations of the Nasdaq Stock Market, Inc.
8.6 COOPERATION
Upon the terms and subject to the conditions hereof, each of the
Parties shall use its commercially reasonable efforts to take or cause
to be taken all actions and to do or cause to be done all things
necessary, proper or advisable to consummate as promptly as
practicable the Transactions and shall use its commercially reasonable
efforts to obtain all RAI Required Consents and IBUI Required
Consents, and to effect all necessary filings under the Securities Act
and the Exchange Act. Without limiting the generality of the
foregoing, each Party shall use all commercially reasonable efforts to
take, or cause to be taken, all other actions and to do, or cause to
be done, all other things necessary, proper or advisable to fulfill
the conditions herein to the extent that the fulfillment thereof is
within a Party's control.
8.7 REORGANIZATION
From and after the date hereof and until the Effective Date,
neither RAI or IBUI, nor any of their respective Subsidiaries shall
knowingly take any action, or knowingly fail to take any action, that
would jeopardize qualification of the Merger and Share Exchange as a
reorganization within the meaning of Section 368(a) of the Code.
Notwithstanding that there is no guaranty of qualification, the
Parties agree that the Merger and Share Exchange is intended to be a
tax-free reorganization under Section 368 of the Code, and this
Agreement is intended to be a "plan of reorganization" within the
meaning of the regulations promulgated under such section of the Code.
ARTICLE 9
COVENANTS OF RAI
9.1 OPERATION OF THE BUSINESS
Except as contemplated by this Agreement or as expressly agreed to
in writing by IBUI, during the period from the date of this Agreement
to the Effective Date, RAI and its Subsidiaries will conduct their
operations only in the ordinary course of business consistent with
sound financial, operational and regulatory practice, and will take no
action which would materially adversely affect their ability to
consummate the Transactions. Without limiting the generality of the
foregoing, except as otherwise expressly provided in this Agreement or
except as disclosed in the RAI Disclosure Schedule, prior to the
Effective Date, neither RAI nor any of its Subsidiaries will, without
the prior written consent of IBUI:
(a) amend its Charter Documents or bylaws (or similar
organizational documents);
(b) authorize for issuance, issue, sell, deliver,
grant any options for, or otherwise agree or commit to issue,
sell or deliver any shares of its capital stock or any other
securities, other than pursuant to and in accordance with the
terms of any existing RAI options or warrants listed on the RAI
Disclosure Schedule;
(c) recapitalize, split, combine or reclassify any
shares of its capital stock; declare, set aside or pay any
dividend or other distribution (whether in cash, stock or
property or any combination thereof) in respect of its capital
stock; or purchase, redeem or otherwise acquire any of its or its
Subsidiaries' securities or modify any of the terms of any such
securities, except for the Reverse Stock Split as defined in
Section 9.8 hereof.
(d) (i) create, incur, assume or permit to exist any
long-term debt or any short-term debt for borrowed money other
than under existing notes payable, lines of credit or other
credit facilities or in the ordinary course of business, or with
respect to its Wholly-Owned Subsidiaries in the ordinary course
of business, or with respect to its Wholly-Owned Subsidiaries;
(ii) assume, guarantee, endorse or otherwise become liable or
responsible (whether directly, contingently or otherwise) for the
obligations of any other Person except its Wholly-Owned
Subsidiaries in the ordinary course of business or as otherwise
may be contractually required and disclosed in the RAI Disclosure
Schedule; or (iii) make any loans, advances or capital
contributions to, or investments in, any other Person except its
Wholly-Owned Subsidiaries;
(e) (i) amend any RAI Benefit Plan or (ii) except in
the ordinary course of business consistent with usual practice or
established policy (a) increase in any manner the rate of
compensation of any of its directors, officers or other employees
everywhere, except for increases in the ordinary course of
business; (b) pay or agree to pay any bonus, pension, retirement
allowance, severance or other employee benefit except as required
under currently existing RAI Benefit Plans disclosed in the RAI
Disclosure Schedule or in the ordinary course of business; or (c)
amend, terminate or enter into any employment, consulting,
severance, change in control or similar agreements or
arrangements with any of its directors, officers or other
employees;
(f) enter into any material agreement, commitment or
contract, except agreements, commitments or contracts for the
purchase, sale or lease of goods or services in the ordinary
course of business;
(g) other than in the ordinary course of business,
authorize, recommend, propose or announce an intention to
authorize, recommend or propose, or enter into any Contract with
respect to, any (i) plan of liquidation or dissolution, (ii)
acquisition of a material amount of assets or securities, (iii)
disposition or Encumbrance of a material amount of assets or
securities, (iv) merger or consolidation or (v) material change
in its capitalization;
(h) change any material accounting or Tax procedure or
practice;
(i) take any action the taking of which, or knowingly
omit to take any action the omission of which, would cause any of
the representations and warranties herein to fail to be true and
correct in all material respects as of the date of such action or
omission as though made at and as of the date of such action or
omission;
(j) compromise, settle or otherwise modify any
material claim or litigation not identified in the RAI Disclosure
Schedule; or
(k) commit or agree to do any of the foregoing.
9.2 RAI STOCKHOLDER MEETING
RAI shall cause a meeting of its stockholders (the "RAI Stockholder
Meeting") to be duly called and held as soon as reasonably practicable
for the purpose of voting on the adoption of this Agreement and the
Merger and Share Exchange as required by the DGCL and the Nasdaq
Stock Market. Subject to their fiduciary duties, the directors of RAI
shall recommend such adoption of this Agreement and the Merger and
Share Exchange by RAI's stockholders and the other matters to be voted
upon. In connection with such meeting, RAI (a) will mail to its
stockholders as promptly as practicable the Proxy Statement and all
other proxy materials for such meeting, (b) will use all reasonable
efforts to obtain the necessary approvals by its stockholders of this
Agreement and the Transactions, and (c) will otherwise comply with all
legal requirements applicable to such meeting.
9.3 MAINTENANCE OF THE ASSETS
RAI shall, and shall cause each other RAI Company to, use its
reasonable best efforts to continue to maintain and service the RAI
Assets consistent with past practice. RAI shall not, and shall cause
each other RAI Company not to, directly or indirectly, sell or
encumber all or any part of the RAI Assets, other than sales in the
ordinary course of business or sales to or Encumbrances in favor of
any other RAI Company, or initiate or participate in any discussions
or negotiations or enter into any agreement to do any of the
foregoing.
9.4 EMPLOYEES AND BUSINESS RELATIONS
RAI shall, and shall cause each other RAI Company to, use
commercially reasonable efforts to keep available the services of its
current employees and agents and to maintain its relations and
goodwill with its suppliers, customers, distributors and any others
having business relations with it.
9.5 CERTAIN TAX MATTERS
From the date hereof until the Effective Date, (a) RAI and each of
its Subsidiaries will prepare and file, in the manner required by
applicable Law, all Tax Returns (the "Post-Signing Returns") required
to be filed under applicable Law; (b) RAI and each of its Subsidiaries
will timely pay all Taxes shown as due and payable on such
Post-Signing Returns that are so filed; (c) RAI and each of its
Subsidiaries will make provision for all Taxes payable by RAI and/or
any such Subsidiary under applicable Law for which no Post-Signing
Return is due prior to the Effective Date; and (d) RAI will promptly
notify IBUI in writing of any action, suit, proceeding, claim or audit
pending against or with respect to RAI or any of its Subsidiaries in
respect of any Tax that is not disclosed on the RAI Disclosure Schedule.
9.6 MAINTENANCE OF LISTING
RAI will use its best efforts to maintain the listing of Merged
Company Common Stock on the Nasdaq Small Cap Market and to keep
current its filings with the SEC as required under Section 13 of the
Exchange Act. RAI shall immediately notify IBUI of, and provide IBUI
a copy of, any notice or correspondence from the Nasdaq Stock Market Inc.
9.7 STATE ANTI-TAKEOVER LAW
If any "business combination," "moratorium," "control share," "fair
price," "interested shareholder," "affiliated transaction" or other
anti-takeover statute or regulation under the DGCL or Nevada Law (i)
prohibits or restricts RAI's ability to perform its obligations under
this Agreement or any party's ability to consummate the Merger and
Share Exchange or the other transactions contemplated hereby or
thereby, or (ii) would have the effect of invalidating or voiding this
Agreement or any provision hereof, then RAI shall use its best efforts
to obtain any necessary consents or approvals so that the foregoing
shall not apply.
9.8 REVERSE STOCK SPLIT
Prior to the Closing Date, RAI shall have conducted a reverse split
of its Common Stock on a 1:6 basis (the "Reverse Stock Split").
ARTICLE 10
COVENANTS OF IBUI
10.1 OPERATION OF THE BUSINESS
Except as contemplated by this Agreement or as expressly agreed to
in writing by RAI, during the period from the date of this Agreement
to the Effective Date, IBUI and its subsidiaries will conduct its
operations only in the ordinary course of business consistent with
sound financial, operational and regulatory practice, and will take no
action which would materially adversely affect its ability to
consummate the Transactions. Without limiting the generality of the
foregoing, except as otherwise expressly provided in this Agreement or
except as disclosed in the IBUI Disclosure Schedule, prior to the
Effective Date, IBUI will not, without the prior written consent of RAI:
(a) amend its Charter Documents or bylaws (or similar
organizational documents);
(b) authorize for issuance, issue, sell, deliver,
grant any options for, or otherwise agree or commit to issue,
sell or deliver any shares of its capital stock or any other
securities, other than pursuant to and in accordance with the
terms of any Existing Options or IBUI Warrants listed on the IBUI
Disclosure Schedule;
(c) recapitalize, split, combine or reclassify any
shares of its capital stock; declare, set aside or pay any
dividend or other distribution (whether in cash, stock or
property or any combination thereof) in respect of its capital
stock; or purchase, redeem or otherwise acquire any of its
securities or modify any of the terms of any such securities;
(d) (i) create, incur, assume or permit to exist any
long-term debt or any short-term debt for borrowed money other
than under existing notes payable, lines of credit or other
credit facilities or in the ordinary course of business, or with
respect to its Wholly-Owned Subsidiaries ; (ii) assume,
guarantee, endorse or otherwise become liable or responsible
(whether directly, contingently or otherwise) for the obligations
of any other Person except its Wholly-Owned Subsidiaries in the
ordinary course of business or as otherwise may be contractually
required and disclosed in the IBUI Disclosure Schedule; or (iii)
make any loans, advances or capital contributions to, or
investments in, any other Person;
(e) (i) amend any IBUI Benefit Plan or (ii) except in
the ordinary course of business consistent with usual practice or
established policy (a) increase in any manner the rate of
compensation of any of its directors, officers or other employees
everywhere, except for increases in the ordinary course of
business; (b) pay or agree to pay any bonus, pension, retirement
allowance, severance or other employee benefit except as required
under currently existing IBUI Benefit Plans disclosed in the IBUI
Disclosure Schedule or in the ordinary course of business; or (c)
amend, terminate or enter into any employment, consulting,
severance, change in control or similar agreements or
arrangements with any of its directors, officers or other
employees;
(f) enter into any material agreement, commitment or
contract, except agreements, commitments or contracts for the
purchase, sale or lease of goods or services in the ordinary
course of business;
(g) other than in the ordinary course of business,
authorize, recommend, propose or announce an intention to
authorize, recommend or propose, or enter into any Contract with
respect to, any (i) plan of liquidation or dissolution, (ii)
acquisition of a material amount of assets or securities, (iii)
disposition or Encumbrance of a material amount of assets or
securities, (iv) merger or consolidation or (v) material change
in its capitalization;
(h) change any material accounting or Tax procedure or practice;
(i) take any action the taking of which, or knowingly
omit to take any action the omission of which, would cause any of
the representations and warranties herein to fail to be true and
correct in all material respects as of the date of such action or
omission as though made at and as of the date of such action or
omission;
(j) compromise, settle or otherwise modify any
material claim or litigation not identified in the IBUI
Disclosure Schedule; or
(k) commit or agree to do any of the foregoing.
10.2 IBUI SHAREHOLDER MEETING
IBUI shall cause a meeting of the IBUI Shareholders (the "IBUI
Shareholder Meeting") to be duly called and held as soon as reasonably
practicable for the purpose of voting on the adoption of this
Agreement and the Merger and Share Exchange as required by Nevada Law.
Subject to their fiduciary duties, the directors of IBUI shall
recommend such adoption of this Agreement and the Merger and Share
Exchange by IBUI's stockholders. In connection with such meeting, IBUI
(a) will mail to its stockholders as promptly as practicable all
required materials for such meeting, (b) will use all reasonable
efforts to obtain the necessary approvals by its stockholders of this
Agreement and the Transactions, and (c) will otherwise comply with all
legal requirements applicable to such meeting.
10.3 MAINTENANCE OF THE ASSETS
IBUI shall, and shall cause each other IBUI Company to, use its
reasonable best efforts to continue to maintain and service the IBUI
Assets consistent with past practice. IBUI shall not, and shall cause
each other RAI Company not to, use its indirectly, sell or encumber
all or any part of the IBUI Assets, other than sales in the ordinary
course of business or initiate or participate in any discussions or
negotiations or enter into any agreement to do any of the foregoing.
10.4 EMPLOYEES AND BUSINESS RELATIONS
IBUI shall, and shall cause each other IBUI Company to use
commercially reasonable efforts to keep available the services of its
current employees and agents and to maintain its relations and
goodwill with its suppliers, customers, distributors and any others
having business relations with it.
10.5 ASSUMPTION OF LIABILITIES
IBUI shall assume 100% of RAI's current liabilities, as listed on
Schedule 10.5 hereto, not to exceed $900,000.
10.6 EXPENSES
IBUI shall pay all of the legal, accounting and other expenses
incurred by each RAI Company and IBUI in connection with the
Transactions.
10.7 CERTAIN TAX MATTERS
From the date hereof until the Effective Date, (a) IBUI will
prepare and file, in the manner required by applicable Law, all
Post-Signing Returns required to be filed under applicable Law; (b)
IBUI and each of its Subsidiaries will timely pay all Taxes shown as
due and payable on such Post-Signing Returns that are so filed; (c)
IBUI and each of its Subsidiaries will make provision for all Taxes
payable by IBUI under applicable Law for which no Post-Signing Return
is due prior to the Effective Date; and (d) IBUI will promptly notify
RAI in writing of any action, suit, proceeding, claim or audit pending
against or with respect to IBUI or any of Subsidiaries in respect of
any Tax that is not disclosed on the IBUI Disclosure Schedule.
10.8 STATE ANTI-TAKEOVER LAW
If any "business combination," "moratorium," "control share," "fair
price," "interested shareholder," "affiliated transaction" or other
anti-takeover statute or regulation under Nevada Law (i) prohibits or
restricts IBUI's ability to perform its obligations under this
Agreement or any party's ability to consummate the IBUI Merger and
Share Exchange or the other transactions contemplated hereby or
thereby, or (ii) would have the effect of invalidating or voiding this
Agreement or any provision hereof or thereof, then IBUI shall use its
best efforts to obtain any necessary consents or approvals so that the
foregoing shall not apply.
ARTICLE 11
POST-CLOSING COVENANTS
11.1 APPOINTMENT TO THE BOARD OF DIRECTORS OF RAI
At the Effective Date, the size of RAI Board of Directors shall be
seven (7) and RAI Board of Directors shall be as set forth on Exhibit 11.1.
11.2 EMPLOYMENT AGREEMENTS
RAI shall execute and deliver employment agreements to [names] and
[names] shall execute and deliver said employment agreements in the
form annexed hereto as Exhibit 11.2.
11.3 INDEMNIFICATION, DIRECTORS' AND OFFICERS' INSURANCE
For a period of two (2) years after the Effective Date, RAI shall
(a) maintain in effect the current provisions regarding
indemnification of officers and directors contained in the Charter
Documents and bylaws of RAI, and (b) indemnify the directors and
officers of RAI to the fullest extent to which RAI is permitted to
indemnify such officers and directors under its Charter Documents and
bylaws and applicable Law as in effect immediately prior to the
Effective Date. For a period of two (2) years after the Effective
Date, RAI shall maintain in effect the current policies of directors'
and officers' liability insurance and fiduciary liability insurance
maintained by RAI (provided that RAI may substitute therefor policies
of at least the same coverage and amounts containing terms and
conditions which are, in the aggregate, no less advantageous to the
insured in any material respect) with respect to claims arising from
facts or events which occurred on or before the Effective Date.
ARTICLE 12
CONDITIONS PRECEDENT TO OBLIGATIONS OF ALL PARTIES
The respective obligations of each Party to consummate the Merger and
Share Exchange and the other Transactions shall be subject to the
fulfillment at or prior to the Effective Date of the following
conditions:
12.1 LEGALITY
All required governmental approvals shall have been obtained and
any applicable waiting periods, shall have expired. No Law or Court
Order shall have been enacted, entered, promulgated or enforced by any
court or governmental entity that is in effect and that has the effect
of making the Merger and Share Exchange illegal or otherwise
prohibiting the consummation of the Merger and Share Exchange and no
legal action shall be pending or threatened which is reasonably likely
to have a Material Adverse Effect on Party.
12.2 FAIRNESS OPINION
An investment banking firm reasonably acceptable to the Parties
will have delivered to RAI's Board of Directors and IBUI's Board of
Directors its opinion to the effect that on the date of the opinion
the (i) the Merger and Share Exchange and the other Transactions
contemplated herein, as a whole, is fair from a financial point of
view to the RAI Stockholders, (ii) the Merger and Share Exchange and
the other Transactions contemplated herein, as a whole, is fair from a
financial point of view to the IBUI Shareholders, and (iii) the Merger
Consideration is fair to the IBUI Shareholders from a financial point
of view.
12.3 APPROVAL BY IBUI SHAREHOLDERS AND RAI STOCKHOLDERS
This Agreement shall have been approved and adopted by the
stockholders of RAI in accordance with the DGCL and its Charter
Documents, and by the stockholders of IBUI in accordance with Nevada
Law and its Charter Documents. No shareholder of IBUI will have
exercised any appraisal rights such shareholder may have under
applicable Law.
ARTICLE 13
CONDITIONS CONCURRENT TO OBLIGATIONS OF ALL PARTIES
The respective obligations of each Party to consummate the Merger and
Share Exchange and the Transactions shall be subject to the
fulfillment, concurrent with the Closing, of each of the following
conditions:
13.1 [Intentionally Omitted]
ARTICLE 14
CONDITIONS PRECEDENT TO OBLIGATIONS OF IBUI
The obligations of IBUI to consummate the Merger and Share Exchange
and the Transactions shall be subject to the satisfaction or waiver,
on or before the Effective Date, of each of the following conditions:
14.1 REPRESENTATIONS AND WARRANTIES
The representations and warranties of the RAI Parties contained in
this Agreement shall be true and correct on the date hereof and
(except to the extent such representations and warranties speak as of
an earlier date) shall also be true and correct on and as of the
Closing Date, except for changes contemplated by this Agreement, with
the same force and effect as if made on and as of the Closing Date.
14.2 AGREEMENTS, CONDITIONS AND COVENANTS
The RAI Parties shall have performed or complied in all material
respects with all agreements, conditions and covenants required by
this Agreement to be performed or complied with by them on or before
the Effective Date.
14.3 CERTIFICATES
IBUI shall have received a certificate of an executive officer of
RAI to the effect set forth in Sections 14.1, 14.2 , 14.4 and 14.5.
14.4 REQUIRED CONSENTS
RAI sure shall have obtained all consents ("RAI Required Consents")
from third parties the absence of which would result in a Material
Adverse Effect on the RAI Companies.
14.5 MATERIAL ADVERSE EFFECT
There shall have been no Material Adverse Effect on the RAI
Companies taken as a whole or the RAI Companies taken as a whole.
14.6 ANCILLARY DOCUMENTS
Each RAI Party shall have tendered executed copies of the
respective Transaction Documents to which it is intended to be a
party.
14.7 BOARD RECOMMENDATION
The Board of Directors of IBUI will have (a) approved and adopted
this Agreement, including the Merger and Share Exchange and the other
Transactions, and determined that the Merger and Share Exchange is
fair to the stockholders of IBUI, and (b) subject to fiduciary
obligations of the IBUI Board of Directors, resolved to recommend
approval and adoption of this Agreement, including the Merger and
Share Exchange and the other Transactions, by the IBUI Shareholders.
14.8 LEGAL OPINION
IBUI shall have received an opinion of counsel, reasonably
acceptable to IBUI, it being understood that Xxxxxx Xxxxxxxxxx &
Xxxxxxxx, LLP is acceptable to IBUI, that:
(a) Each of the RAI Companies is a corporation, duly
chartered, validly existing and in good standing under the laws
of it state of incorporation, with the requisite corporate power
and authority to own and use its properties and assets and to
carry on its business as currently conducted. Each of the RAI
Companies is duly qualified to do business and is in good
standing as a foreign corporation in each jurisdiction in which
the nature of the business conducted or property owned by it
makes such qualification necessary, except where the failure to
be so qualified or in good standing, as the case may be, would
not individually or in the aggregate have a Material Adverse Effect.
b) Each of the RAI Companies has the requisite
corporate power and authority to enter into and to consummate
the transactions contemplated by the Merger and Share Exchange
Agreement and to otherwise carry out their respective obligations
thereunder. The execution and delivery of the Merger and Share
Exchange Agreement by the RAI Companies and the consummation by
them of the transactions contemplated thereby, including the
issuance of the shares thereunder have been duly authorized by
all necessary action on the part of each of the RAI Companies,
including without limitation approval by the shareholders of each
of the RAI Companies if required by applicable Law. The Merger
and Share Exchange Agreement has been duly executed and delivered
by the RAI Companies and constitutes the valid and binding
obligation of the RAI Companies enforceable against the RAI
Companies in accordance with its terms.
(c) The shares of RAI to be issued to the shareholders
of IBUI pursuant to the Merger and Share Exchange, have been duly
authorized, and assuming without independent investigation that
the shares of capital stock of IBUI outstanding on the date of
effectiveness of the Merger and Share Exchange are duly
authorized, validly issued, fully paid and nonassessable, when
(a) the Merger and Share Exchange has become effective and (b)
the shares of capital stock of IBUI have been duly delivered
pursuant to the terms of the Merger and Share Exchange Agreement,
such shares of RAI will be validly issued, fully paid and non-
assessable.
(d) No shares of the capital stock of RAI are entitled
to preemptive or similar rights. There are no outstanding
options, warrants, script rights to subscribe to, registration
rights, calls or commitments of any character whatsoever relating
to, or, securities, rights or obligations convertible into or
exchangeable for, or giving any person any right to subscribe for
or acquire, any shares of capital stock, or contracts,
commitments, understandings, or arrangements by which RAI is or
may become bound to issue additional shares of capital stock, or
securities or rights convertible or exchangeable into shares of
capital stock.
ARTICLE 15
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE RAI PARTIES
The obligations of the RAI Parties to consummate the Merger and Share
Exchange and the Transactions and the obligations of the RAI Parties
to consummate the IBUI Merger and Share Exchange and the Transactions
shall be subject to the satisfaction or waiver, on or before the
Effective Date, of each of the following conditions:
15.1 REPRESENTATIONS AND WARRANTIES
The representations and warranties of IBUI contained in this
Agreement shall be true and correct on the date hereof and (except to
the extent such representations and warranties speak as of an earlier
date) shall also be true and correct on and as of the Closing Date,
except for changes contemplated by this Agreement, with the same force
and effect as if made on and as of the Closing Date.
15.2 AGREEMENTS, CONDITIONS AND COVENANTS
IBUI shall have performed or complied in all material respects with
all agreements, conditions and covenants required by this Agreement to
be performed or complied with by it on or before the Effective Date.
15.3 CERTIFICATES
RAI shall have received a certificate of an executive officer of
IBUI to the effect set forth in Sections 15.1, 15.2, 15.4 and 15.5,
respectively.
15.4 REQUIRED CONSENTS
IBUI shall have obtained all consents ("IBUI Required Consents")
from third parties the absence of which would result in a Material
Adverse Effect on IBUI.
15.5 MATERIAL ADVERSE EFFECT
There shall have been no Material Adverse Effect on IBUI taken as a
whole.
15.6 ANCILLARY DOCUMENTS
IBUI shall have tendered executed copies of the Transaction
Documents to which it is intended to be a party.
15.7 BOARD RECOMMENDATION
The Board of Directors of RAI will have approved and adopted this
Agreement, including the RAI Merger and Share Exchange, the IBUI
Merger and Share Exchange and the other Transactions, and determined
that each of the RAI Merger and Share Exchange and IBUI Merger and
Share Exchange is fair to RAI.
15.8 LEGAL OPINION
RAI shall have received an opinion of counsel, reasonably
acceptable to RAI, it being understood that Xxxxx X. Xxxxxxxx, Esq. is
acceptable to RAI, that:
(a) Each of the IBUI companies is a corporation, duly
chartered, validly existing and in good standing under the laws
of it state of incorporation, with the requisite corporate power
and authority to own and use its properties and assets and to
carry on its business as currently conducted. Each of the IBUI
Companies is duly qualified to do business and is in good
standing as a foreign corporation in each jurisdiction in which
the nature of the business conducted or property owned by it
makes such qualification necessary, except where the failure to
be so qualified or in good standing, as the case may be, would
not individually or in the aggregate have a Material Adverse Effect.
(b) Each of the IBUI Companies has the requisite
corporate power and authority to enter into and to consummate the
transactions contemplated by the Merger and Share Exchange
Agreement and to otherwise carry out their respective obligations
thereunder. The execution and delivery of the Merger and Share
Exchange Agreement by the IBUI Companies and the consummation by
them of the transactions contemplated thereby, including the
issuance of the shares thereunder have been duly authorized by
all necessary action on the part of each IBUI Company, including
without limitation approval by the shareholders of each of the
IBUI Companies, if required by applicable Law. The Merger and
Share Exchange Agreement has been duly executed and delivered by
the IBUI Companies, and constitutes the valid and binding
obligation of the IBUI Companies, enforceable against the IBUI
Companies in accordance with its terms.
(c) No shares of the capital stock of IBUI are
entitled to preemptive or similar rights. There are no
outstanding options, warrants, script rights to subscribe to,
registration rights, calls or commitments of any character
whatsoever relating to, or, securities, rights or obligations
convertible into or exchangeable for, or giving any person any
right to subscribe for or acquire, any shares of capital stock,
or contracts, commitments, understandings, or arrangements by
which IBUI is or may become bound to issue additional shares of
capital stock, or securities or rights convertible or
exchangeable into shares of capital stock.
15.9 LINE OF CREDIT
IBUI Shall have obtained a line of credit which is substantially
similar in all material respects with the Form of Equity Line
Agreement attached hereto as Exhibit 15.9.
ARTICLE 16
INDEMNIFICATION
16.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES
All of the representations and warranties set forth in Articles V
and VI in this Agreement, notwithstanding any investigation at any
time made by or on behalf of any party hereto, and in any certificate
delivered in connection herewith with respect to any of those
representations and warranties, will terminate on the Effective Date.
16.2 INDEMNIFICATION OF IBUI INDEMNIFIED PARTIES
RAI covenants and agrees that it will indemnify each IBUI
Indemnified Party against, and hold each IBUI Indemnified Party
harmless from and in respect of, all claims that arise from, are based
on, arise out of, or are attributable to (i) any breach of the
representations and warranties of the RAI Companies or in certificates
delivered in connection herewith; (ii) the nonfulfillment of any
covenant or agreement on the part of the RAI Companies under this
Agreement to be performed prior to the Closing or (iii) any liability
under the Securities Act, the Exchange Act or other applicable Law
which arises out of or is based on (A) any untrue statement or alleged
untrue statement of a material fact relating to RAI and its
Subsidiaries, or any of them, which is provided to IBUI or its counsel
in writing by the RAI or (B) any omission or alleged omission to state
therein a material fact relating to RAI and its Subsidiaries, or any
of them, required to be stated therein or necessary to make the
statements therein not misleading, and not provided to IBUI or its
counsel by RAI after a written request therefor (each damage claim
described in Section 16.2 being an "IBUI Indemnified Loss"). Once the
occurrence of a breach of any representations or warranties has been
established, damages shall be calculated without regard to whether
such breach caused a Material Adverse Effect.
16.3 NDEMNIFICATION OF RAI INDEMNIFIED PARTIES
IBUI covenants and agrees that it will indemnify each RAI
Indemnified Party against, and hold each RAI Indemnified Party
harmless from and in respect of, all claims that arise from, are based
on, arise out of, or are attributable to (i) any breach of the
representations and warranties of the IBUI Companies or in
certificates delivered in connection herewith; (ii) the nonfulfillment
of any covenant or agreement on the part of the IBUI Companies under
this Agreement to be performed prior to the Closing or (iii) any
liability under the Securities Act, the Exchange Act or other
applicable Law which arises out of or is based on (A) any untrue
statement or alleged untrue statement of a material fact relating to
IBUI and its Subsidiaries, or any of them, which is provided to RAI or
its counsel in writing by the IBUI Companies or (B) any omission or
alleged omission to state therein a material fact relating to IBUI and
its Subsidiaries, or any of them, required to be stated therein or
necessary to make the statements therein not misleading, and not
provided to RAI or its counsel by IBUI after a written request
therefor (each damage claim described in Section 16.3 being a "RAI
Indemnified Loss"). Once the occurrence of a breach of any
representations or warranties has been established, damages shall be
calculated without regard to whether such breach caused a Material
Adverse Effect.
16.4 CONDITIONS OF INDEMNIFICATION
(a) All claims for indemnification under this
Agreement (except Article VII) shall be asserted and resolved as
follows in this Section 16.4. The provisions of Article XVI
shall be the sole manner by which the Indemnified Party shall
assert any claim against the Indemnifying Party that does not
involve a Third Party Claim, including without limitation any
claim for breach of this Agreement.
(b) A party claiming indemnification under this
Agreement (an "Indemnified Party") shall promptly (i) notify the
party from whom indemnification is sought (the "Indemnifying
Party") of any third-party claim or claims asserted against the
Indemnified Party ("Third Party Claim") that could give rise to a
right of indemnification under this Agreement and (ii) transmit
to the Indemnifying Party a written notice ("Claim Notice")
describing in reasonable detail the nature of the Third Party
Claim, a copy of all papers served with respect to that claim (if
any), an estimate of the amount of damages attributable to the
Third Party Claim to the extent feasible (which estimate shall
not be conclusive of the final amount of such claim) and the
basis for the Indemnified Party's request for indemnification
under this Agreement. Except as set forth in Section 16.1, the
failure to promptly deliver a Claim Notice shall not relieve the
Indemnifying Party of its obligations to the Indemnified Party
with respect to the related Third Party Claim except to the
extent that the resulting delay is materially prejudicial to the
defense of that claim. Within 15 days after receipt of any Claim
Notice (the "Election Period"), the Indemnifying Party shall
notify the Indemnified Party (i) whether the Indemnifying Party
disputes its potential liability to the Indemnified Party under
this Article XVI with respect to that Third Party Claim and (ii)
if the Indemnifying Party does not dispute its potential
liability to the Indemnified Party with respect to that Third
Party Claim, whether the Indemnifying Party desires, at the sole
cost and expense of the Indemnifying Party, to defend the
Indemnified Party against that Third Party Claim.
(c) If the Indemnifying Party does not dispute its
potential liability to the Indemnified Party and notifies the
Indemnified Party within the Election Period that the
Indemnifying Party elects to assume the defense of the Third
Party Claim, then the Indemnifying Party shall have the right to
defend, at its sole cost and expense, that Third Party Claim by
all appropriate proceedings, which proceedings shall be
prosecuted diligently by the Indemnifying Party to a final
conclusion or settled at the discretion of the Indemnifying Party
in accordance with this Section 16.4(c) and the Indemnified Party
will furnish the Indemnifying Party with all information in its
possession, subject to a confidentiality agreement, with respect
to that Third Party Claim and otherwise cooperate with the
Indemnifying Party in the defense of that Third Party Claim;
provided, however, that the Indemnifying Party shall not enter
into any settlement with respect to any Third Party Claim that
(i) purports to limit the activities of, or otherwise restrict in
any way, any Indemnified Party or any Affiliate of any
Indemnified Party, (ii) involves a guilty plea to any crime or
(iii) involves a fine or penalty, whether or not paid by the
Indemnifying Party, without the prior consent of that Indemnified
Party (which consent may be withheld in the sole discretion of
that Indemnified Party). The Indemnified Party is hereby
authorized, at the sole cost and expense of the Indemnifying
Party, to file, during the Election Period, any motion, answer or
other pleadings that the Indemnified Party shall deem necessary
or appropriate to protect its interests or those of the
Indemnifying Party. The Indemnified Party may participate in, but
not control, any defense or settlement of any Third Party Claim
controlled by the Indemnifying Party pursuant to this Section
16.4(c) and will bear its own costs and expenses with respect to
that participation; provided, however, that if the named parties
to any such action (including any impleaded parties) include both
the Indemnifying Party and the Indemnified Party, and the
Indemnified Party has been advised by counsel that there may be
one or more legal defenses available to it which are different
from or additional to those available to the Indemnifying Party,
then the Indemnified Party may employ separate counsel at the
expense of the Indemnifying Party (provided that such expenses
are reasonable), and, on its written notification of that
employment, the Indemnifying Party shall not have the right to
assume or continue the defense of such action on behalf of the
Indemnified Party.
(d) If the Indemnifying Party (i) within the Election
Period (A) disputes its potential liability to the Indemnified
Party under this Article XVI, (B) elects not to defend the
Indemnified Party pursuant to Section 16.4(c) or (C) fails to
notify the Indemnified Party that the Indemnifying Party elects
to defend the Indemnified Party pursuant to Section 16.4(c) or
(ii) elects to defend the Indemnified Party pursuant to Section
16.4(c) but fails diligently and promptly to prosecute or settle
the Third Party Claim, then the Indemnified Party shall have the
right to defend, at the sole cost and expense of the Indemnifying
Party (provided that such expenses are reasonable) (if the
Indemnified Party is entitled to indemnification hereunder), the
Third Party Claim by all appropriate proceedings, which
proceedings shall be promptly and vigorously prosecuted by the
Indemnified Party to a final conclusion or settled. The
Indemnified Party shall have full control of such defense and
proceedings. Notwithstanding the foregoing, if the Indemnifying
Party has delivered a written notice to the Indemnified Party to
the effect that the Indemnifying Party disputes its potential
liability to the Indemnified Party under this Article XVI and if
such dispute is resolved in favor of the Indemnifying Party, the
Indemnifying Party shall not be required to bear the costs and
expenses of the Indemnified Party's defense pursuant to this
Section 16.4 or of the Indemnifying Party's participation therein
at the Indemnified Party's request, and the Indemnified Party
shall reimburse the Indemnifying Party in full for all reasonable
costs and expenses of such litigation. The Indemnifying Party may
participate in, but not control, any defense or settlement
controlled by the Indemnified Party pursuant to this Section
16.4(d), and the Indemnifying Party shall bear its own costs and
expenses with respect to such participation.
(e) In the event any Indemnified Party should have a
claim against any Indemnifying Party hereunder that does not
involve a Third Party Claim, the Indemnified Party shall transmit
to the Indemnifying Party a written notice (the "Indemnity
Notice") describing in reasonable detail the nature of the claim,
an estimate of the amount of damages attributable to that claim
to the extent feasible (which estimate shall not be conclusive of
the final amount of such claim) and the basis of the Indemnified
Party's request for indemnification under this Agreement. If the
Indemnifying Party does not notify the Indemnified Party within
15 days from its receipt of the Indemnity Notice that the
Indemnifying Party disputes such claim, the claim specified by
the Indemnified Party in the Indemnity Notice shall be deemed a
liability of the Indemnifying Party hereunder. If the
Indemnifying Party has timely disputed such claim, as provided
above, such dispute shall be resolved by proceedings in an
appropriate court of competent jurisdiction if the parties do not
reach a settlement of such dispute within 30 days after notice of
a dispute is given.
(f) Payments of all amounts owing by an Indemnifying
Party pursuant to this Article XVI relating to a Third Party
Claim shall be made within 30 days after the latest of (i) the
settlement of that Third Party Claim, (ii) the expiration of the
period for appeal of a final adjudication of that Third Party
Claim or (iii) the expiration of the period for appeal of a final
adjudication of the Indemnifying Party's liability to the
Indemnified Party under this Agreement. Payments of all amounts
owing by an Indemnifying Party pursuant to Section 16.4(e) shall
be made within 30 days after the later of (i) the expiration of
the 30-day Indemnity Notice period or (ii) the expiration of the
period for appeal of a final adjudication of the Indemnifying
Party's liability to the Indemnified Party under this Agreement.
16.5 REMEDIES NOT EXCLUSIVE
The remedies provided in this Agreement shall not be exclusive of
any other rights or remedies available to one party against the other,
either at law or in equity.
ARTICLE 17
TERMINATION
17.1GROUNDS FOR TERMINATION
This Agreement may be terminated at any time before the Effective
Date, in each case as authorized by the respective Boards of Directors
of the Parties:
(a) By mutual written consent of each of RAI and IBUI;
(b) By RAI or IBUI if the Merger and Share Exchange
shall not have been consummated on or before the Termination
Date; provided, however, that the right to terminate this
Agreement under this Section 17.1(b) shall not be available to
any Party whose failure to fulfill any obligation under this
Agreement has been the cause of, or resulted in, the failure of
the Effective Date to occur on or before the Termination Date;
(c) By RAI or IBUI if a court of competent
jurisdiction or governmental, regulatory or administrative agency
or commission shall have issued a Court Order (which Court Order
the Parties shall use commercially reasonable efforts to lift)
that permanently restrains, enjoins or otherwise prohibits the
Transactions, and such Court Order shall have become final and
nonappealable;
(d) By IBUI if RAI shall have breached, or failed to
comply with, in any material respect, any of its obligations
under this Agreement or any representation or warranty made by
RAI shall have been incorrect in any material respect when made,
and such breach, failure or misrepresentation is not cured within
20 days after notice thereof, and in either case, any such
breaches, failures or misrepresentations, individually or in the
aggregate, results or would reasonably be expected to result in a
failure to satisfy a condition to RAI's obligations to consummate
the transactions contemplated hereby;
(e) By RAI if IBUI shall have breached, or failed to
comply with, in any material respect, any of its obligations
under this Agreement or any representation or warranty made by it
shall have been incorrect in any material respect when made, and
such breach, failure or misrepresentation is not cured within 20
days after notice thereof, and in either case, any such breaches,
failures or misrepresentations, individually or in the aggregate,
results or would reasonably be expected to result in a failure to
satisfy a condition to IBUI's obligations to consummate the
transactions contemplated hereby;
(f) By RAI if at the RAI Stockholder Meeting
(including any adjournment thereof) this Agreement and the Merger
and Share Exchange shall fail to be approved and adopted by the
affirmative vote of the stockholders of RAI as required under the DGCL;
(g) By IBUI if at the IBUI Shareholder Meeting
(including any adjournment thereof) this Agreement and the Merger
and Share Exchange shall fail to be approved and adopted by the
affirmative vote of the stockholders of IBUI as required under
Nevada law;
(h) By RAI, prior to the approval of this Agreement by
the stockholders of RAI, upon five days notice to IBUI, if, as a
result of an Acquisition Proposal received by RAI from a Person
other than a Party to this Agreement or any of its Affiliates,
the Board of Directors of RAI determines in good faith that its
fiduciary obligations under applicable Law require that such
Acquisition Proposal be accepted; provided, however, that (i)
immediately following such termination RAI executes with such
third party a definitive agreement to implement such Acquisition
Proposal, (ii) the Board of Directors of RAI shall have concluded
in good faith, after considering applicable provisions of
applicable Law and after giving effect to all concessions which
may be offered by IBUI pursuant to clause (iii) below, on the
basis of advice of counsel, that such action is necessary for the
Board of Directors to act in a manner consistent with its
fiduciary duties under applicable Law, and (iii) prior to any
such termination, (x) RAI shall have provided IBUI with five
days' notice of the terms of the proposal and otherwise complied
with Section 8.2(a) hereof (including making the finding
contemplated by Section 8.2(a)(x) hereof) and (y) RAI shall, and
shall cause its financial and legal advisors to, negotiate with
IBUI to make such adjustments in the terms and conditions of this
Agreement as would enable RAI to proceed with the Transactions;
(i) By IBUI, prior to the approval of this Agreement
by the stockholders of IBUI, upon five days notice to RAI, if, as
a result of an Acquisition Proposal received by IBUI from a
Person other than a Party to this Agreement or any of its
Affiliates, the Board of Directors of IBUI determines in good
faith that its fiduciary obligations under applicable Law require
that such Acquisition Proposal be accepted; provided, however,
that (i) immediately following such termination IBUI executes
with such third party a definitive agreement to implement such
Acquisition Proposal, (ii) the Board of Directors of IBUI shall
have concluded in good faith, after considering applicable
provisions of applicable Law and after giving effect to all
concessions which may be offered by RAI pursuant to clause (iii)
below, on the basis of advice of counsel, that such action is
necessary for the Board of Directors to act in a manner
consistent with its fiduciary duties under applicable Law, and
(iii) prior to any such termination, (x) IBUI shall have provided
RAI with five days' notice of the terms of the proposal and
otherwise complied with Section 8.2(b) hereof (including making
the finding contemplated by Section 8.2(b)(i)(x) hereof) and (y)
IBUI shall, and shall cause its financial and legal advisors to,
negotiate with RAI to make such adjustments in the terms and
conditions of this Agreement as would enable IBUI to proceed with
the Transactions.
(j) By RAI if the Board of Directors of IBUI shall
withdraw, modify or change its recommendation of this Agreement
or the Merger and Share Exchange or shall have failed to reaffirm
its recommendation within five business days of RAI's request
that it do so or shall have recommended or issued a neutral
recommendation (or taken no position) with respect to any
Acquisition Proposal.
(k) By IBUI if the Board of Directors of RAI shall
withdraw, modify or change its recommendation of this Agreement
or the Merger and Share Exchange or shall have failed to reaffirm
its recommendation within five business days of IBUI's request
that it do so or shall have recommended or issued a neutral
recommendation (or taken no position) with respect to any
Acquisition Proposal.
(l) By IBUI if RAI is not listed for trading on the NASDAQ
Smallcap Market on the Effective Date.
17.2 EFFECT OF TERMINATION
..
(a) If this Agreement is terminated pursuant to
Section 17.1(a), (b), or (l), this Agreement shall be terminated
and there shall be no liability on the part of any of the
Parties; notwithstanding the foregoing, nothing herein shall
relieve any Party from liability for any willful breach hereof;
provided that the provisions of Sections 8.3, 8.4(b), 9.6, 10.6,
11.2 and this Section 17.2 shall survive the termination hereof.
(b) If this Agreement is terminated by IBUI pursuant
to Section 17.1(d) or (k) or by RAI pursuant to Section 17.1(f)
or (h), then RAI shall pay IBUI liquidated damages in the amount
of US$500,000.
(c) If this Agreement is terminated by RAI pursuant to
Section 17.1(e) or (j) or by IBUI pursuant to Section 17.1(g) or
(i) , then IBUI shall pay RAI liquidated damages in the amount of
US$500,000.
ARTICLE 18
GENERAL MATTERS
18.1 [Intentionally Omitted]
18.2 CONTENTS OF AGREEMENT
This Agreement, together with the other Transaction Documents, set
forth the entire understanding of the Parties hereto with respect to
the Transactions and supersede all prior agreements or understandings
among the Parties regarding those matters.
18.3 AMENDMENT, PARTIES IN INTEREST, ASSIGNMENT, ETC.
This Agreement may be amended, modified or supplemented only by a
written instrument duly executed by each of the Parties hereto. If any
provision of this Agreement shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provision
hereof, and this Agreement shall be construed as if such invalid,
illegal or unenforceable provision had never been contained herein.
This Agreement shall be binding upon and inure to the benefit of and
be enforceable by the respective heirs, legal representatives,
successors and permitted assigns of the Parties hereto. No Party
hereto shall assign this Agreement or any right, benefit or obligation
hereunder. Any term or provision of this Agreement may be waived at
any time by the Party entitled to the benefit thereof by a written
instrument duly executed by such Party. The Parties hereto shall
execute and deliver any and all documents and take any and all other
actions that may be deemed reasonably necessary by their respective
counsel to complete the Transactions. Nothing in this Agreement is
intended or will be construed to confer on any Person other than the
Parties hereto any rights or benefits hereunder.
18.4 INTERPRETATION
Unless the context of this Agreement clearly requires otherwise,
(a) references to the plural include the singular, the singular the
plural, the part the whole, (b) references to any gender include all
genders, (c) "or" has the inclusive meaning frequently identified with
the phrase "and/or," (d) "including," "includes" or similar words has
the inclusive meaning frequently identified with the phrase "but not
limited to" and (e) references to "hereunder" or "herein" relate to
this Agreement. The section and other headings contained in this
Agreement are for reference purposes only and shall not control or
affect the construction of this Agreement or the interpretation
thereof in any respect. Section, subsection, Disclosure Schedule and
Exhibit references are to this Agreement unless otherwise specified.
The Exhibits and Schedules referred to in this Agreement will be
deemed to be a part of this Agreement. Each accounting term used
herein that is not specifically defined herein shall have the meaning
given to it under GAAP.
18.5 NOTICES
All notices that are required or permitted hereunder shall be in
writing and shall be sufficient if personally delivered or sent by a
nationally recognized overnight courier upon proof of delivery. Any
notices shall be deemed given upon receipt at the address set forth
below, unless such address is changed by notice to the other Party
hereto:
If to RAI: Return Assured Incorporated
000 Xxxx Xxxxxxx, Xxxxx 0000
Xxxxxxxxx, XX X0X 0X0
Attn: Xxxxxxx Xxxxx
with a required copy to: Xxxxxx Gottbetter & Xxxxxxxx, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxxxxxxx, Esq.
If to IBUI: Internet Business's International, Inc.
0000 Xxxxx Xxxxxx
Xxxxx 000
Xxx Xxxx Xxxxx, XX 00000
Attn: Xxxxxx X. Xxxx
18.6 GOVERNING LAW AND VENUE
This Agreement shall be construed and interpreted in accordance
with the Laws of the State of New York without regard to its
provisions concerning conflict of laws. Any dispute or controversy
concerning or relating to this Agreement shall be exclusively resolved
in the federal or state courts located in the State of New York, New
York County.
18.7 COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of
which shall be binding as of the date first written above, and all of
which shall constitute one and the same instrument. Each such copy
shall be deemed an original, and it shall not be necessary in making
proof of this Agreement to produce or account for more than one such
counterpart.
18.8 WAIVERS
Compliance with the provisions of this Agreement may be waived only
by a written instrument specifically referring to this Agreement and
signed by the Party waiving compliance. No course of dealing, nor any
failure or delay in exercising any right, will be construed as a
waiver, and no single or partial exercise of a right will preclude any
other or further exercise of that or any other right.
18.9 MODIFICATION
No supplement, modification or amendment of this Agreement will be
binding unless made in a written instrument that is signed by all of
the Parties hereto and that specifically refers to this Agreement.
18.10 ENFORCEMENT OF AGREEMENT
The parties hereto agree that irreparable damage would occur in the
event that any of the provisions of this Agreement was not performed
in accordance with its specific terms or was otherwise breached. It is
accordingly agreed that the parties shall be entitled to an injunction
to prevent breaches of this Agreement and to enforce specifically the
terms and provisions hereof in any court of competent jurisdiction,
this being in addition to any other remedy to which they are entitled
at law or equity.
18.11 WAIVER OF JURY TRIAL
Each party acknowledges and agrees that any controversy which may
arise under this Agreement is likely to involve complicated and
difficult issues, and therefore each such party hereby irrevocably and
unconditionally waives any right such party may have to a trial by
jury in respect of any litigation directly or indirectly arising out
of or relating to this Agreement, or the Transactions contemplated by
this Agreement. Each party certifies and acknowledges that (i) no
representative, agent or attorney of any other party has represented,
expressly or otherwise, that such other party would not, in the event
of litigation, seek to enforce the foregoing waiver, (ii) each party
understands and has considered the implications of this waiver, (iii)
each party makes this waiver voluntarily, and (iv) each party has been
induced to enter into this Agreement by, among other things, the
mutual waivers and certifications in this Section 18.11.
18.12 SEVERABILITY
If any term or other provision of this Agreement is invalid,
illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect. Upon such determination
that any term or other provision is invalid, illegal or incapable of
being enforced, the parties hereto shall negotiate in good faith to
modify this Agreement so as to effect the original intent of the
parties as closely as possible to the fullest extent permitted by
applicable Law in an acceptable manner to the end that the
Transactions are fulfilled to the extent possible.
IN WITNESS WHEREOF, this Agreement has been executed by the Parties
hereto as of the day and year first written above.
INTERNET BUSINESS'S INTERNATIONAL, INC.
By:/s/ Xxxxxx Xxxx
Xxxxxx Xxxx
Chief Executive Officer
RETURN ASSURED INCORPORATED
By:/s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
President
IBUI ACQUISITION CORPORATION
By:/s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: President
