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EXHIBIT 10.3
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
FLOUR CITY INTERNATIONAL, INC.
AND
INTERNATIONAL FOREST INDUSTRIES, INC.
Dated as of April _____, 1997
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TABLE OF CONTENTS
PAGE
I. DEFINITIONS..........................................................................1
II. THE MERGER TRANSACTION...............................................................2
2.1 Merger; Surviving Corporation.................................................2
2.2 The Closing...................................................................2
2.3 Effective Time; Effect of Merger..............................................3
2.4 Articles of Incorporation.....................................................3
2.5 By-Laws.......................................................................3
2.6 Directors and Officers........................................................3
2.7 Conversion of Shares..........................................................3
III. REPRESENTATIONS AND WARRANTIES OF IFI................................................4
3.1 Organization and Authorization................................................4
3.2 Non-Contravention.............................................................4
3.3 Capital Stock.................................................................4
3.4 Financial Statements..........................................................5
3.5 No Adverse Changes............................................................5
3.6 Approvals.....................................................................6
3.7 Taxes.........................................................................6
3.8 Contracts; Absence of Default.................................................7
3.9 Title to Assets...............................................................8
3.10 Litigation....................................................................8
3.11 Permits.......................................................................8
3.12 Corporate Records.............................................................8
3.13 Absence of Undisclosed Liabilities............................................9
3.14 Corporate Compliance..........................................................9
3.15 Regulatory Compliance.........................................................9
3.16 Conflict of Interest..........................................................9
3.17 Labor Matters.................................................................9
3.18 Benefit Plans................................................................10
3.19 Accuracy of Information Furnished............................................10
3.20 Brokers......................................................................10
3.21 Reorganization Representations of IFI........................................10
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IV. SPECIAL MATTERS.....................................................................11
4.1 No-Shop......................................................................11
4.2 Payment of Certain Expenses..................................................11
V. REPRESENTATIONS AND WARRANTIES OF FCI...............................................11
5.1 Organization and Authorization...............................................11
5.2 Non-Contravention............................................................12
5.3 Capital Stock................................................................12
5.4 Unaudited Financial Statements and Stock Purchase Agreement..................12
5.5 No Adverse Changes...........................................................13
5.6 Litigation...................................................................13
5.7 Corporate Records............................................................13
5.8 Corporate Compliance.........................................................13
5.9 Accuracy of Information Furnished............................................13
5.10 Brokers......................................................................13
5.11 Reorganization Representations of FCI........................................13
VI. COVENANTS...........................................................................14
6.1 Negative Covenants of IFI and FCI............................................14
6.2 Additional Affirmative Covenants of FCI......................................14
6.3 Additional Affirmative Covenants of IFI......................................15
6.4 Access and Confidentiality...................................................15
6.5 Public Announcements.........................................................15
6.6 Expenses.....................................................................15
6.7 Survival of Representations and Warranties and Covenants; Indemnification....16
6.8 Reorganization Covenant......................................................17
6.9 Financial Covenants of IFI...................................................17
VII. CONDITIONS..........................................................................17
7.1 Conditions Precedent to the Obligations of All Parties.......................17
7.2 Additional Conditions Precedent to the Obligations of IFI....................18
7.3 Additional Conditions Precedent to the Obligations of FCI....................18
VIII. TERMINATION.........................................................................19
8.1 Termination by Mutual Consent................................................19
8.2 Termination by FCI...........................................................19
8.3 Effect of Termination........................................................19
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IX. GENERAL PROVISIONS..................................................................19
9.1 Notices......................................................................19
9.2 Amendment and Waiver.........................................................20
9.3 Counterparts.................................................................20
9.4 Assignability................................................................21
9.5 Entire Agreement.............................................................21
9.6 Applicable Law...............................................................21
9.7 Headings.....................................................................21
9.8 Attorneys' Fees..............................................................21
9.9 Further Assurances...........................................................21
EXHIBITS:
A - Form of Plan of Merger
B - Issuance of IFI Common Stock to FCI Shareholders
C - Form of Articles of Merger
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AGREEMENT AND PLAN OF MERGER (this "Agreement") made and entered into as
of the ______ day of April, 1997 by and among International Forest Industries,
Inc., a Nevada corporation ("IFI"), and Flour City International, Inc., a Nevada
corporation ("FCI").
WHEREAS, in order that IFI may acquire all of the capital stock of FCI,
and FCI desires that FCI merge with and into IFI pursuant to the terms and
conditions set forth in this Agreement and in accordance with the laws of the
State of Nevada (the "Merger"); and
WHEREAS, the parties intend that the Merger will constitute a
reorganization under the provisions of Section 368 of the Internal Revenue Code
of 1986, as amended;
NOW, THEREFORE, in consideration of the premises and the
representations, warranties and agreements herein contained, the parties hereby
agree as follows:
I. DEFINITIONS
For purposes of this Agreement, the following terms shall have the
meanings set forth:
"Articles of Merger" shall mean the Articles of Merger to be entered
into by and between the Constituent Corporations as provided in Section 2.2, in
substantially the Form attached hereto as Exhibit "C."
"Closing" and "Closing Date" shall have the meanings set forth in
Section 2.2.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Constituent Corporations" shall mean both FCI and IFI.
"Conversion Ratio" shall have the meaning set forth in Section 2.7.
"Effective Time" shall have the meaning set forth in Section 2.3.
"FCI Common Stock" shall mean the common stock, $.0001 par value, of
FCI.
"IFI" shall have the meaning set forth in the preface of this Agreement.
"IFI Common Stock" shall mean the Common Stock, $.001 par value, of IFI.
"IFI Financial Statements" shall mean Financial Statements of IFI
referred to in Section 3.4, including the notes thereto.
"Knowledge" or "to the knowledge" of a party shall mean any item of
which any executive officer of FCI or IFI has actual knowledge or of which such
executive officer would have discovered following reasonable inquiry.
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"Merger" shall have the meaning set forth in the preambles hereto and
more fully described in Section 2.1.
"Ordinary course of business" or similar reference shall mean consistent
with past custom and practice, including with respect to quantity and frequency.
"Plan of Merger" shall mean the Plan of Merger to be entered into by and
between the Constituent Corporations as provided in Section 2.2, in
substantially the form attached hereto as Exhibit A.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Surviving Corporation" shall have the meaning set forth in Section 2.1.
"Surviving Corporation Common Stock" shall mean the common stock of the
Surviving Corporation.
"Tax" or "Taxes" shall mean a net income, gross income, gross receipts,
sales, use, ad valorem, franchise, profits, license, withholding, payroll,
employment, excise, severance, stamp, transfer, occupation, real property,
premium, property or windfall profit tax, custom duty, or other tax,
governmental fee or other like assessment or charge of any kind whatsoever,
together with any interest and any penalty, additional tax or additional amount
imposed by any jurisdiction or other taxing authority (federal, state, local or
foreign).
II. THE MERGER TRANSACTION
2.1 Merger; Surviving Corporation. Pursuant to the provisions of this
Agreement and in accordance with Nevada Corporate Law, at the Effective Time FCI
shall be merged with and into IFI. IFI shall be the corporation surviving the
Merger (the "Surviving Corporation") and shall maintain its corporate existence
under the laws of the State of Nevada.
2.2 The Closing.
(a) Subject to the conditions set forth in Article VII, unless
this Agreement shall have been terminated as provided in Article VIII, the
consummation of the transactions contemplated by this Agreement (the "Closing")
shall take place at the offices of Xxxxxxx, Xxxxxx & Xxxxx, 000 Xxxxxxxx
Xxxxxxxxx, 00xx Xxxxx, Xxx Xxxxxxx, Xxxxxxxxxx, commencing at 9:00 a.m., on
April ____, 1997 or such other place or such other date as the parties may
mutually determine (the "Closing Date").
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(b) At the Closing, (i) IFI shall deliver to FCI the various
certificates, instruments and documents referred to in Section 7.3, and shall
deliver to FCI share certificates as set forth in Exhibit B hereto of IFI
representing 27,980,667 shares of IFI Common Stock, which shall be validly
issued and fully paid and nonassessable, free and clear of any lien or other
encumbrance and (ii) the Constituent Corporations shall cause a properly
executed Plan of Merger and Articles of Merger (together with such certificates
and other documents as may be required by law to effectuate the merger) to be
filed with the Secretary of State of the State Nevada.
2.3 Effective Time; Effect of Merger. The Merger shall become effective
at the time (the "Effective Time") the Constituent Corporations file the
Articles of Merger with the Secretary of State of the State of Nevada. At the
Effective Time, the separate existence of FCI shall cease. All properties,
franchises and rights belonging to FCI by virtue of the Merger and without
further act or deed, shall be deemed to be vested in the Surviving Corporation,
which shall thenceforth be responsible for all of the liabilities and
obligations of FCI. The Surviving Corporation may, at any time after the
Effective Time, take any action (including executing and delivering any
document) in the name and on behalf of either of the Constituent Corporations in
order to carry out and effectuate the transactions contemplated by this
Agreement.
2.4 Articles of Incorporation. The Articles of Incorporation of IFI in
effect immediately prior to the Effective Time shall be the Articles of
Incorporation of the Surviving Corporation until amended in accordance with the
provisions thereof and as set forth in the Plan of Merger and Articles of Merger
which are Exhibits A and C hereto, respectively.
2.5 By-Laws. The By-Laws of FCI as in effect immediately prior to the
Effective Time shall be the By-Laws of the Surviving Corporation until further
amended in accordance with the provisions thereof and of the Articles of
Incorporation of the Surviving Corporation.
2.6 Directors and Officers.
(a) The Board of Directors of the Surviving Corporation from and
after the Effective Time shall consist of the persons who are members of the
Board of Directors of FCI as of the Effective Time. Such directors shall serve
until their resignation, removal or failure to be reelected and until their
respective successors are duly elected or appointed and qualified in accordance
with the Articles of Incorporation and By-Laws of the Surviving Corporation.
(b) The persons who are officers of FCI as of the Effective Time
shall continue in the same capacity as officers of the Surviving Corporation
until the Board of Directors of the Surviving Corporation shall otherwise
determine. Other persons may be elected or appointed to other offices from time
to time in accordance with the By-Laws of the Surviving Corporation.
2.7 Conversion of Shares.
At and as of the Effective Time, each share of FCI shall be
converted into the right
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to receive 2.7980667 IFI Common Shares. No FCI shares shall be deemed to be
outstanding or to have any rights after the Effective Time.
III. REPRESENTATIONS AND WARRANTIES OF IFI
IFI hereby represents and warrants to FCI as follows:
3.1 Organization and Authorization.
IFI is a corporation duly organized, validly existing and in good
standing under the laws of Nevada, has the corporate power and all necessary
corporate authorizations to own all of its properties and assets and to carry on
its business as it is now being conducted. IFI is duly qualified to do business
and is in good standing in each jurisdiction in which the nature of its business
or character of its properties requires such qualification and where the failure
to be so qualified would materially and adversely affect IFI, its business,
properties or rights. IFI has delivered to FCI complete and correct copies of
IFI's Articles of Incorporation and By-Laws, as amended and in effect on the
date of this Agreement. IFI has all requisite corporate power to execute,
deliver and perform its obligations under this Agreement. The execution,
delivery and performance of this Agreement by IFI, and the consummation by IFI
of the transactions contemplated hereby have been duly authorized by the Board
of Directors and shareholders of IFI. This Agreement has been duly executed and
delivered by IFI and constitutes a valid and binding agreement of IFI.
3.2 Non-Contravention. The execution and delivery of this Agreement do
not and the consummation of the transactions contemplated hereby will not (a)
violate the Articles of Incorporation or By-Laws of IFI (b) violate any material
provision of or result in the breach or the acceleration of or entitle any party
to accelerate (whether after the giving of notice or the lapse of time or both)
any obligation under any material mortgage, lease, agreement, license or
instrument, or any order, arbitration award, judgment, or decree, to which IFI
is a party or by which it is bound, (c) result in the creation or imposition of
any lien, charge, pledge, security interest or other encumbrance on any material
property of IFI or (d) to the knowledge of IFI violate or conflict with any law,
ordinance or rule to which IFI is subject.
3.3. Capital Stock.
(a) The authorized and outstanding capital stock of IFI consists
of 50,000,000 shares of Common Stock, $.001 par value. As of the date of this
Agreement there is 25,360,000 shares of Common Stock issued and outstanding
which are validly issued, fully paid and nonassessable. Prior to the Closing IFI
shall have completed all actions required to effect a 1 for 10 reverse stock
split resulting in 2,536,000 shares of Common Stock issued and outstanding
immediately prior to the Closing. There are sufficient authorized but unissued
shares of IFI Common Stock to permit the issuance of all shares required to be
issued in accordance with the terms and conditions of this Agreement to FCI upon
consummation of the Merger.
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(b) There are no outstanding subscriptions, options, conversion
rights, warrants or other agreements or commitments of any nature whatsoever
obligating IFI to issue, deliver or sell, or cause to be issued, delivered or
sold, any additional shares of the capital stock of IFI or obligating IFI to
grant, extend or enter into any such agreement or commitment. No preemptive or
similar rights exist or will arise as a result of the transactions contemplated
by this Agreement. There are no voting trusts, voting agreements, irrevocable
proxies or other agreements to which IFI is a party, or of which IFI has
knowledge, in effect relating to the voting or transfer of any shares of IFI
Common Stock.
(c) The Shares of IFI Common Stock to be delivered pursuant to
the Merger will, upon issuance, be validly issued, fully paid and nonassessable.
3.4 Financial Statements. IFI has previously furnished FCI with its
audited Balance Sheets as of December 31, 1994, December 31, 1995, and September
30, 1996 and the related Statements of Operations, Stockholders' Equity and Cash
Flows for the period January 1, 1996 to September 30, 1996 and for the two years
ended December 31, 1994 and December 31, 1995 (collectively the "IFI Financial
Statements"). The IFI Financial Statements (a) were prepared in accordance with
the books and records of IFI; and (b) have been prepared in accordance with
generally accepted accounting principles ("GAAP") applied on a consistent basis
throughout the periods covered thereby. The IFI Financial Statements present
fairly the financial position of IFI as of the dates thereof and the results of
operations and changes in financial position of IFI for the periods then ended.
The balance sheet of IFI as of September 30, 1996 is sometimes referred to
herein as the "Latest IFI Balance Sheet."
3.5 No Adverse Changes. Except as contemplated herein, since the date of
the Latest IFI Balance Sheet, IFI has conducted its business only in the
ordinary course, there has not been any material adverse change in the financial
condition, assets, liabilities, properties, business or operations of IFI and
IFI has not:
(a) issued or sold any stock, notes, bonds or other securities,
or any option to purchase the same, or entered into any agreement with respect
thereto, with the exception of 7,500,000 Common Shares sold pursuant to Rule 504
of Regulation D;
(b) declared, set aside or made any dividend or other
distribution on capital stock or redeemed, purchased or acquired any shares
thereof or entered into any agreement in effect to the foregoing, with the
exception of that certain assignment of assets to a trust for the benefit of the
existing IFI shareholders declared and effective as of April ____, 1997;
(c) amended its Articles of Incorporation or By-Laws;
(d) incurred any material obligation or liability (absolute or
contingent);
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(e) entered into any contract or agreement other than contracts
or commitments made pursuant to this Agreement;
(f) made any payment or arrangement, agreement or commitment to
pay any bonus, incentive compensation or retirement, termination or severance
benefits;
(g) borrowed or loaned any money;
(h) changed its method of accounting; or
(i) agreed, whether in writing or otherwise, to take any action
described in this Section 3.5.
3.6 Approvals. Except for the approval by the IFI shareholders and the
filing of the Articles of Merger with the Nevada Secretary of State, no consent,
approval, order or authorization of, or registration, declaration or filing with
any governmental authority is required in connection with the execution and
delivery of this Agreement by IFI or the consummation by IFI of the transactions
contemplated hereby.
3.7 Taxes. (a) IFI has filed or will, before the Closing Date, file all
material returns, declarations, reports and information returns and statements
required by law to be filed by it before the Closing Date (taking into account
any extension for time of filing granted by any appropriate taxing authority)
relating to any Taxes with respect to any income, properties or operations of
IFI before the Closing Date (collectively, the "Returns"), and all such Returns
were, or will be, correct and complete in all material respects; (b) IFI has
timely paid (taking into account any extension for time of filing granted by any
appropriate taxing authority) in full Taxes that have been shown as due and
payable on Returns that have been filed and is not delinquent in the payment of
any amount of Taxes attributable to any settlement with governmental
authorities; (c) all other material Taxes due and payable by IFI for any taxable
period ending on or before the Closing Date (taking into account any extension
for time of filing granted by any appropriate taxing authority) have been, or
will have been, paid in full unless such Taxes are being contested or have been
reserved for on IFI's Financial Statements; (d) all material Taxes required to
be withheld by or on behalf of IFI or with respect to the business operated by
IFI or the assets thereof have been withheld, and such withheld Taxes have been
duly paid to the proper governmental authority or set aside in accounts for such
purpose; (e) no Returns or Taxes for which IFI could be held liable is currently
being audited by any taxing authority and no taxing authority has given notice
in writing that it will commence any such audit; (f) the charges, accruals and
reserves for Taxes (including deferred Taxes) currently reflected on the books
of IFI, if any, are and will be as of the Closing Date, adequate in accordance
with generally accepted accounting principles, consistently applied, to cover
all unpaid liabilities for Taxes accruing or payable by IFI in respect of
periods that end on or before the Closing Date (except for any Taxes payable as
a result of any event occurring on the Closing Date, but after the Closing,
which is outside the ordinary course of business) and for periods that begin
before the Closing Date and end after the Closing Date to the extent that such
Taxes are attributable to the portion of any such period ending
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at the Closing Date; for purposes of this subsection (f), in the case of a
period that begins before the Closing Date and ends after the Closing Date, the
Taxes attributable to the portion of the period ending at the Closing Date shall
be determined by closing the books of IFI on the Closing Date and determining
the Taxes that would have been imposed on IFI if the period ending at the
Closing Date had been a separate taxable year; except, however, in the case of
any property taxes, the amount attributable to the portion of the period ending
at the Closing Date shall be equal to the total amount of such property taxes
for the period in question multiplied by a fraction, the numerator of which is
the number of days from the beginning of the period through the Closing Date,
and the denominator of which is the total number of days in the period; (g) no
deficiency for any amount of material Taxes has been proposed, asserted or
assessed in writing against IFI; (h) IFI has not granted an extension of the
limitations period applicable to the assessment of Taxes; (i) IFI has not been a
party to any tax sharing arrangement; (j) IFI has not made any election under
Section 341(f) of the Code; (k) there are no elections in effect made by or with
respect to IFI pursuant to Section 338 or 336(e) of the Code or the regulations
thereunder and, prior to the Closing Date, IFI will not be subject to any
constructive elections under Section 338 of the Code or regulations thereunder;
(1) none of the property of IFI is subject to a lease under (i) Section
168(f)(8) of the Internal Revenue Code of 1954 as in effect prior to the date of
enactment of the Tax Reform Act of 1982, or (ii) Section 7701(h) of the Code;
(m) IFI is not nor has been a member of any affiliated group for purposes of
filing tax returns or paying Taxes at any time other than the affiliated group
of which IFI is the common parent; and (o) there are no liens for delinquent
Taxes upon the assets of IFI.
3.8 Contracts; Absence of Default. IFI is not a party to any material
written or oral:
(a) contract, agreement or understanding for the employment of any
officer, consultant, director, employee or any other person;
(b) contract, agreement or understanding with any labor union;
(c) contract, agreement or understanding for the purchase of any
materials, supplies, equipment, personal property or real property;
(d) contract, agreement or understanding for the sale of products or
performance of services;
(e) license or franchise agreement, either as licensor or licensee
or franchisor or franchisee, or distributor, or sales agency contract;
(f) lease under which IFI is a lessor or lessee of real property or
personal property, or contract, agreement or understanding to purchase or sell
real property or personal property;
(g) pension, profit-sharing, bonus, deferred compensation,
retirement or stock option or stock purchase plan in effect with respect to
employees or others;
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(h) contract or agreement granting to any person, or obtaining from
any person, the right to use any property or property right, including any
trademark, trade secret, know-how, software, or patent licensing agreement,
contract or understanding;
(i) plan or contract or other arrangement providing for insurance
for any officer director or employee or member of their families;
(j) contract or agreement containing covenants by IFI not to compete
in any line of business or with any person;
(k) partnership, joint venture contract or arrangement or other
agreement involving a sharing of profits;
(l) contract or agreement relating to the borrowing or lending of
money; or
(m) other material contract, agreement or understanding which
requires by its terms the payment of more than $100.00 during any twelve-month
period or has a term of more than twelve months.
3.9 Title to Assets. IFI owns and has good and marketable title to all
of its assets and properties (real, personal and mixed, tangible or intangible),
reflected in the IFI Financial Statements free and clear of any mortgage, lien,
pledge, charge, claim, conditional sales or other agreement, lease, right or
encumbrance, except to the extent stated or reserved against in the IFI
Financial Statements.
3.10 Litigation. There are no actions, suits or proceedings or
investigations pending or, to the knowledge of IFI threatened against or
affecting the business or financial condition of IFI at law or in equity in any
court or before any foreign, federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality. IFI is not in
default in respect of any judgment, order, writ, injunction or decree of any
court or any foreign, federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality.
3.11 Permits. IFI has all permits, licenses, orders and approvals of all
foreign, federal, state, or local governmental or regulatory bodies required for
it to conduct its business as presently conducted, the absence of which would
have a material adverse effect on the business or financial condition of IFI all
such permits, licenses, orders and approvals are in full force and effect and no
suspension or cancellation of any of them is threatened; and such permits,
licenses, orders or approvals will not be adversely affected by the consummation
of the transactions contemplated by this Agreement.
3.12 Corporate Records. The minute books of IFI contain complete and
accurate records of all material corporate actions taken at all meetings, all
actions by written consent without a
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meeting, and all other material corporate actions taken by the Board of
Directors and shareholders of IFI.
3.13 Absence of Undisclosed Liabilities. Except as and to the extent
reflected or reserved against in the IFI Financial Statements, IFI had as of the
dates of such financial statements, no liabilities or obligations, whether
accrued, contingent or otherwise required by GAAP to be reflected in the IFI
Financial Statements or otherwise material to IFI. As of the date of this
Agreement, IFI does not have any liabilities or obligations, whether accrued,
contingent or otherwise, except as provided for in the preceding sentence and
for such liabilities or obligations as have arisen in the ordinary course of
business since the date of the Latest Balance Sheet, none of which newly arisen
liabilities or obligations has a material adverse effect upon the business or
financial condition of IFI.
3.14 Corporate Compliance. IFI is not in violation of, or in default
under, any term or provision of its Articles of Incorporation or By-Laws.
3.15 Regulatory Compliance. To its knowledge, IFI is in compliance in
all material respects with all federal, state, local and foreign laws and
regulations applicable to it, including, without limitation, environmental laws.
IFI has not generated, used, handled, treated or stored hazardous waste or
hazardous substance (as hereinafter defined) and/or oil at, on or in any site
currently or formerly owned, leased or used by IFI or shipped the same for
treatment, storage or disposal at any other site or facilities other than those
generated, used, handled, treated or stored in the ordinary course of business
which was in compliance in all material respects with the laws and regulations
relating to hazardous waste and hazardous substances. For the purpose of this
Section 3.15, "hazardous waste" and "hazardous substance" shall have the
meanings set forth in the Resource Conservation and Recovery Act, 42 U.S.C.
SectionSection 6901, et seq., and the Comprehensive Environmental Response,
Compensation, and Liability Act, 42 U.S.C. SectionSection 9601 et seq., and any
federal regulations adopted pursuant to or in furtherance of such acts as such
statutes or regulations may be amended, or as defined in any state or local
statutes or regulations governing such waste and substances.
3.16 Conflict of Interest.
(a) No director or officer of IFI or, to the knowledge of IFI any
employee of IFI, has any interest in any material property, real or personal or
tangible or intangible necessary for, used in or pertaining to the business of
IFI; and
(b) No director or officer of IFI, or to the knowledge of IFI,
employee of IFI, (i) competes with IFI in any line of business, or (ii) is a
party to any IFI contract, nor does any director or officer of IFI, or, to the
knowledge of IFI, any employee of IFI have an ownership interest, direct or
indirect, in any entity which competes with IFI in any line of business or is a
party to any IFI contract.
3.17 Labor Matters. There are no disputes pending or, to the knowledge
of IFI, threatened, between IFI and any of its former employees. To the
knowledge of IFI, IFI is in compliance with
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all applicable labor laws the failure to comply with which would have a material
adverse effect on the business or financial condition of IFI. IFI is not a party
to any collective bargaining agreements.
3.18 Benefit Plans.
(a) IFI is not a party to any compensation, bonus, pension, profit
sharing, retirement, savings, stock option, stock purchase, severance, bonus,
medical, dental, health benefit, disability, income, vacation, holiday, leave of
absence, expense reimbursement, automobile or other transportation allowance, or
similar plans, procedures, programs or agreements (the "IFI" Employee Benefit
Plans").
(b) IFI does not maintain or contribute to any "employee welfare
benefit plan" as defined in Section 3(1) of the Employee Retirement Income
Security Act of 1974 ("ERISA") (a "Welfare Benefit Plan"), pursuant to
collective bargaining agreement or otherwise, providing benefits to retirees or
former employees.
(c) IFI has administered all former IFI Employee Benefit Plans, if
any, in compliance in all material respects with applicable law, including but
not limited to ERISA, and with respect to each such plan all applicable
reporting and disclosure obligations have been satisfied in all material
respects.
(d) There is no pending or, to the knowledge of IFI, threatened
litigation against IFI, with respect to any IFI Employee Benefit Plan and no
such plan has been the subject of an audit, investigation or other proceeding by
any governmental agency.
3.19 Accuracy of Information Furnished. The certificates, statements and
other information furnished to FCI in writing by or on behalf of IFI do not to
the knowledge of IFI contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
3.20 Brokers. All negotiations relating to this Agreement and the
transactions contemplated hereby have been carried on without the intervention
of any person acting on behalf of IFI who has or may have a valid claim against
FCI or the Surviving Corporation for any broker's or finder's fee or similar
compensation.
3.21 Reorganization Representations of IFI. IFI does not own, directly
or indirectly, and has not owned directly or indirectly during the past five
years, any shares of FCI Common Stock. The fair market value of the IFI Common
Stock received by FCI shareholders will be approximately equal to the fair
market value of the FCI Common Stock surrendered in the Merger. IFI has no plan
or intention to reacquire any of the IFI Common Stock issued in the Merger. IFI
has no plan or intention to cause the Surviving Corporation to issue shares of
its stock that would result in IFI owning less than 80% of the Surviving
Corporation's stock by vote or value. Immediately following the Merger, the
Surviving Corporation will hold all of FCI's net assets and gross assets. IFI
has no
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present plan or intention to liquidate the Surviving Corporation, to merge the
Surviving Corporation with or into another corporation, to sell or otherwise
dispose of any of the stock of the Surviving Corporation, in each case except
for transfer of stock to corporations controlled by IFI, except for dispositions
made in the ordinary course of business or transfers of assets to a corporation
controlled by the Surviving Corporation. IFI is not an investment company as
defined in Section 368(a) (2) (F) (iii) and (iv) of the Code.
IV. SPECIAL MATTERS
4.1 No-Shop. IFI agrees, severally, for the benefit of FCI that IFI will
not, directly or indirectly, prior to the termination of this Agreement as
provided in Article VIII, (i) sell, transfer, pledge, encumber or otherwise
dispose of any shares and capital stock of IFI, or discuss or negotiate with any
other corporation, person (other than its professional advisors) or firm (other
than representatives of FCI) or entertain or consider any inquiry or proposals,
regarding the possible disposition of such shares or the business or all or
substantially all of the assets of IFI, or a merger or combination of IFI, or an
acquisition of IFI by another party; (ii) provide any information relating to
the possible sale of IFI or its business, or all or substantially all of the
assets of IFI, to any potential third-party purchaser or to disclose to any
potential third-party purchaser that IFI, or all or any significant portion of
the assets of IFI, is or may be for sale; or (iii) intentionally take any action
which is inconsistent with the obligations of IFI hereunder.
4.2 Payment of Certain Expenses. If the closing does not occur, each
party shall pay its or his own expenses for legal, accounting and other
professional fees incurred in connection with this Agreement.
V. REPRESENTATIONS AND WARRANTIES OF FCI
FCI hereby represents and warrants to IFI as follows:
5.1 Organization and Authorization.
(a) FCI is a corporation duly organized, validly existing and in
good standing under the laws of the State of Nevada, has the corporate power and
all necessary authorizations to own all of its properties and assets and to
carry on its business as it is now being conducted. FCI is duly qualified to do
business and is in good standing in each jurisdiction in which the nature of its
business or character of its properties requires such qualification and where
the failure to be so qualified would materially and adversely affect FCI its
businesses, properties or rights. FCI has delivered to IFI complete and correct
copies of its Articles of Incorporation and By-Laws, as amended and in effect on
the date of this Agreement. FCI has all requisite corporate power to execute,
deliver and perform its obligations under this Agreement. The execution,
delivery and performance of this Agreement by FCI, and the consummation by FCI
of the transactions
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contemplated hereby have been duly authorized by the Board of Directors of FCI.
This Agreement has been duly executed and delivered by FCI and upon the approval
of the FCI shareholders will constitute a valid and binding agreement of FCI.
(b) FCI owns 100% of the issued and outstanding capital stock of
Flour City Architectural Metals, Inc. ("FCAM"), a Delaware corporation, and
Hockley International Limited ("HIL"), a British Virgin Islands corporation.
5.2 Non-Contravention. The execution and delivery of this Agreement do
not and the consummation of the transactions contemplated hereby will not (a)
violate the Articles of Incorporation or By-Laws of FCI (b) violate any
provision of or result in the breach or the acceleration of or entitle any party
to accelerate (whether after the giving of notice or the lapse of time or both)
any obligation under any mortgage, lease, agreement, license or instrument, or
any order, arbitration award, judgment, or decree, to which FCI is a party or by
which either of them is bound, (c) result in the creation or imposition of any
lien, charge, pledge, security interest or other encumbrance on any property of
FCI or (d) violate or conflict with any law, ordinance or rule to which FCI or
the property of FCI is subject.
5.3 Capital Stock.
(a) The authorized capital stock of FCI consists of 25,000,000
shares of Common Stock, $.0001 par value, and 5,000,000 shares of Preferred
Xxxxx, x.0000 par value. As of the date of this Agreement there is 10,000,000
shares of Common Stock issued and outstanding which are validly issued, fully
paid and nonassessable.
(b) There are no outstanding subscriptions, options, conversion
rights, warrants or other agreements or commitments of any nature whatsoever
obligating FCI to issue, deliver or sell, or cause to be issued, delivered or
sold, any additional shares of the capital stock of FCI or obligating FCI to
grant, extend or enter into any such agreement or commitment. No preemptive or
similar rights exist or will arise as a result of the transaction contemplated
by this Agreement. There are no voting trusts, voting agreements, irrevocable
proxies or other agreements to which FCI is a party, or of which FCI has
knowledge, in effect relating to voting or transfer of any shares of FCI Common
Stock.
5.4 Unaudited Financial Statements and Stock Purchase Agreement. The
unaudited consolidated profit and loss accounts and balance sheets for HIL for
the years ending October 31, 1993, 1994, 1995 and 1996 (collectively the "HIL
Financial Statements") which have been previously provided to IFI to the
knowledge of FCI present fairly the financial position of HIL as of the dates
thereof and the results of operations of FCI for the periods then ended; subject
to any adjustments therein which may be required upon an audit of the foregoing
financial statements, which adjustments may be material. The Stock Purchase
Agreement (the "FCI-SPA") among Armco, Inc., FCAM and FCI effective January 1,
1997 which has been previously provided to IFI
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to the knowledge of FCI represents the terms and conditions of FCI's acquisition
of FCAM from Armco, Inc.
5.5 No Adverse Changes. Since the dates of the HIL Financial Statements
and the FCI- SPA, FCI has conducted its business only in the ordinary course,
and there has not been any material adverse changes in the business, financial
condition, assets, liabilities, properties or operations of FCI.
5.6 Litigation. Except as set forth in the FCI-SPA, there are no
material actions, suits or proceedings or investigations pending or, to the
knowledge of FCI, threatened against or affecting the business, operations or
financial condition of FCI at law or in equity in any court or before any
foreign, federal, state, municipal or other governmental department, commission,
board, bureau, agency or instrumentality. FCI is not in default in respect of
any judgment, order, writ, injunction or decree of any court or any foreign,
federal, state, municipal or other governmental department, commission, board,
bureau, agency or instrumentality.
5.7 Corporate Records. The minute books of FCI made available to IFI or
its legal counsel to review contained complete and accurate records of all
material corporate actions taken at all meetings, all actions by written consent
without a meeting, and all other material corporate actions taken by the Board
of Directors and shareholders of FCI.
5.8 Corporate Compliance. FCI is not in violation of, or in default
under, any term or provision of its Articles of Incorporation or By-Laws.
5.9 Accuracy of Information Furnished. The certificates, statements, and
other information furnished to IFI in writing by or on behalf of FCI in
connection with the transactions contemplated hereby, do not to the knowledge of
FCI contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in light of the circumstances
under which they are made, not misleading; provided, however, that no
representation is made as to the accuracy of any financial projections contained
in such information.
5.10 Brokers. All negotiations relating to this Agreement and the
transactions contemplated hereby have been carried on without the intervention
of any person acting on behalf of FCI who has or may have a valid claim against
IFI or the Surviving Corporation for any broker's or finder's fee or similar
compensation.
5.11 Reorganization Representations of FCI. There is no intercorporate
indebtedness existing between IFI and FCI. FCI is not an investment company as
defined in Section 368(a) (2) (F) (iii) and (iv) of the Code. FCI is not under
the jurisdiction of a court in a Title 11 or similar case. The fair market value
of the assets of FCI exceeds and will exceed as of the Effective Time the sum of
its liabilities plus the amount of liabilities, if any, to which the assets are
subject. Any liabilities of FCI assumed by the Surviving Corporation and any
liabilities to which the transferred assets of FCI are subject were incurred by
FCI in the ordinary course of its business.
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VI. COVENANTS
6.1 Negative Covenants of IFI and FCI. From the date of this Agreement
until the Effective Time, except with the prior written consent of the other
parties or as expressly permitted by this Agreement, IFI and FCI each hereby
covenant and agree that it will not:
(a) declare or pay any dividends or effect any stock split or other
reclassification;
(b) merge or consolidate with any corporation;
(c) make any acquisition of stock or assets of any person or entity;
(d) authorize the creation or issuance of or issue, sell or dispose
of, or create any obligation to issue, sell or dispose of, any shares of its
capital stock except pursuant to conversion rights, options or other commitments
or agreements existing on the date of this Agreement.
(e) incur any indebtedness for borrowed money other than in the
ordinary course of business or in connection with transactions disclosed
hereunder or contemplated herein;
(f) enter into or amend any employment contract with any of its
officers, increase the salary of any officer other than in the ordinary course
of business, adopt or amend in any material respect (except as required by law)
any employee benefit plan, severance plan or collective bargaining agreement or
make awards or distributions under any employee benefit plan not consistent with
past practice or custom;
(g) amend its Articles of Incorporation or By-Laws;
(h) dispose of any material assets or otherwise conduct its business
in a manner that is not consistent with past practices; or
6.2 Additional Affirmative Covenants of FCI. In addition to the
covenants set forth in Section 6.1, FCI hereby covenants and agrees that from
the date of this Agreement until the Effective Time (or until the items referred
to have either been accomplished or, in good faith, abandoned), except with the
prior written consent of IFI:
(a) shall use all reasonable efforts to comply with all applicable
federal or state filing requirements imposed on FCI with respect to the Merger,
and cooperate with and promptly furnish information to IFI in connection with
any such filing requirements imposed upon IFI in connection with the Merger; and
(b) shall (i) promptly advise IFI orally and in writing of any
inquiry or proposal for the acquisition of its stock, assets or business; (ii)
use all reasonable efforts to obtain any consent, authorization or approval of,
or exemption by, any governmental authority or agency or other third
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party required to be obtained or made by in connection with the Merger or the
taking of any action in connection with the consummation thereof; and (iii) use
all reasonable efforts to cause the conditions precedent to the Merger to be
fulfilled.
6.3 Additional Affirmative Covenants of IFI. In addition to the
covenants set forth in Section 6.1, IFI hereby covenants and agrees that from
the date of this Agreement until the Effective Time (or until the items referred
to have either been accomplished or, in good faith, abandoned), except with the
prior written consent of FCI, it shall use all reasonable efforts to comply with
all filing requirements which federal or state law may impose on IFI with
respect to the Merger, and cooperate with and promptly furnish information to
FCI in connection with any such filing requirements imposed upon FCI in
connection with the Merger.
6.4 Access and Confidentiality.
(a) From the date of this Agreement to the Effective Time, FCI shall
afford to IFI and to the officers and authorized representatives of IFI
(including, without limitation, counsel, financial advisors and independent
accountants) full access to its properties, personnel, books and records at such
reasonable times and in such manner as not to disrupt normal business
operations; and the officers of FCI will furnish such officers and
representatives with such additional financial and operating data and other
information as to its business and properties as may be reasonably requested.
Similarly, from the date of this Agreement to the Effective Time, IFI shall
afford to FCI and to FCI's officers and authorized representatives (including,
without limitation, counsel, financial advisors and independent accountants)
full access to its properties, personnel, books and records at such reasonable
times and in such manner as not to disrupt normal business operations; and the
officers of IFI will furnish such officers and representatives with such
additional financial and operating data and other information as to its business
and properties as may be reasonably requested.
(b) FCI and IFI shall at all times prior to the Effective Time and,
in the event the transactions contemplated by this Agreement are not
consummated, at all times thereafter, keep confidential all confidential or
proprietary information furnished to it by the other party in connection with
this Agreement and the transactions contemplated hereby, and will not disclose
such confidential or proprietary information to any third party without the
prior written consent of the other party. In addition, in the event of
termination of this Agreement, all non-public documents (including copies
thereof) and other non-public written information obtained hereunder by any
party from any other party shall be returned to such party.
6.5 Public Announcements. Each of the parties hereto will obtain the
prior written approval from the other parties before issuing any press release
or otherwise making any public statements with respect to the Merger prior to
the Effective Time.
6.6 Expenses. Subject to Section 4.3 hereof, each of the parties hereto
shall pay all of its own costs and expenses incurred in connection with the
Merger, this Agreement and the
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transactions contemplated thereby or hereby.
6.7 Survival of Representations and Warranties and Covenants;
Indemnification.
(a) The parties hereto hereby acknowledge and agree that the
representations and warranties and covenants set forth in this Agreement shall
survive the Closing Date for a period of 24 months, provided that, any covenant
contained herein that is to be performed after the Closing Date shall survive
for a period of 24 months from the date or expiration of the period upon or
during which such covenant is to be performed.
(b) The following individual directors of IFI, Xxxxxx X. Xxxxxx,
Xxxxx Xxxxxx and Xxxx X. Xxxxxx (the "IFI Directors") jointly and severally
hereby agree to indemnify, defend, save and hold the Surviving Corporation
harmless from and against any and all damage, liability, loss, expense,
assessment, judgment or deficiency of any nature whatsoever (including without
limitation, reasonable attorneys' fees and other costs and expenses incident to
any suit, action or proceeding) actually paid or incurred or sustained by the
Surviving Corporation which shall arise out of, or result from, any breach with
respect to which notice has been given within the 24-month period following the
Closing Date of any representation, warranty or covenant of IFI in this
Agreement.
(c) The following individual directors of FCI, Xxxx Xxxx and Xxxxxxx
Xxxxx (the "FCI Directors") jointly and severally hereby agree to indemnify,
defend, save and hold the Surviving Corporation harmless from and against any
and all damage, liability, loss, expense, assessment, judgment or deficiency of
any nature whatsoever (including without limitation, reasonable attorneys' fees
and other costs and expenses incident to any suit, action or proceeding)
actually paid or incurred or sustained by the Surviving Corporation which shall
arise out of, or result from, any breach with respect to which notice has been
given within the 24-month period following the Closing Date of any
representation, warranty or covenant of FCI in this Agreement.
(d) Promptly after service of notice within the 24-month period
following the Closing Date of any claim or of process by any third party in any
matter in respect of which indemnity may be sought from a party pursuant to this
Agreement, the party so served shall notify the indemnifying party of the
receipt thereof. The indemnifying party shall have the right to participate in,
or assume, at its own expense, the defense of any such claim or process or
settlement thereof. Such defense shall be conducted expeditiously (but with due
regard for obtaining the most favorable outcome reasonably likely under the
circumstances, taking into account costs and expenditures) and the indemnified
party shall be advised promptly of all developments. In the event that the
indemnifying party assumes the defense of the indemnified party, then the
indemnified party shall retain the right to participate, at its own cost and
expense, in such defense. Notwithstanding any provision to the contrary set
forth herein, the obligations of the indemnifying party hereunder shall be
subject to and conditioned upon its receipt of timely notice of such claim or
process and in the event that the failure to give such timely notice materially
and adversely affects the ability of the indemnifying party to defend such claim
or materially increases the amount of indemnification
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which the indemnifying party is obligated to pay hereunder, said indemnifying
party shall have no indemnification obligations whatsoever with respect to such
claim. No settlement of any such claim as to which the indemnifying party has
not elected to assume the defense thereof shall be made without the prior
written consent of the indemnifying party, which consent shall not be
unreasonably withheld or delayed. In addition, in the event of such a settlement
without the prior written consent of the indemnifying party, the indemnifying
party shall have no indemnification obligation whatsoever with respect to such
claim.
(e) In determining the amount of loss subject to indemnity under
this Section 6.7, the parties shall make appropriate adjustments for any
recoveries received by the indemnified party under insurance policies. In
addition, the amount of loss subject to indemnity under this Section 6.7 shall
be adjusted to reflect any tax benefits received by the indemnified party as a
result of the breach that gave rise to the indemnification obligation and the
time value of money shall be calculated using the prevailing prime rate of
interest as the discount rate.
(f) Notwithstanding any term or condition of this Section 6.7 to the
contrary, the liability of the FCI Directors shall be limited pursuant to this
Section 6.7 as follows: (i) the maximum liability of any individual FCI Director
for all claims pursuant to this Section 6.7 shall not exceed the value of such
FCI Director's shares in IFI received pursuant to this Agreement at the time he
is required to satisfy any liability pursuant to the provisions of this Section
6.7; and (ii) at the option of any FCI Director, he shall have the right to
satisfy any liability on his part pursuant to this Section 6.7 by the tender of
IFI Common Stock received by him pursuant to this Agreement to IFI and to
receive a credit against such liability in an amount equal to the number of
shares so tendered times the IFI closing price or bid, as may be applicable, at
the time he is required to satisfy any liability pursuant to the provisions of
this Section 6.7.
6.8 Reorganization Covenant.
Following the Merger, the Surviving Corporation will continue the
historic businesses of FCI.
6.9 Financial Covenants of IFI.
Following the Closing Date, IFI shall use its best efforts to promptly
complete the required audits and accounting with respect to IFI and its then
existing subsidiaries so as to permit IFI to prepare and file a true, correct
and complete registration statement under the Securities Act of 1933, as
amended.
VII. CONDITIONS
7.1 Conditions Precedent to the Obligations of All Parties.
Notwithstanding any other provision of this Agreement, the obligations of IFI on
the one hand, and of FCI on the other hand,
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to effect the Merger shall be subject to the fulfillment, as of the Closing, of
each of the following conditions (unless waived by the written consent of the
parties hereto):
(a) all permits, approvals and consents of any governmental body or
agency or other third party necessary or appropriate for consummation of the
Merger shall have been obtained;
(b) there shall not be in effect an order or decision of a court of
competent jurisdiction which prevents, or would materially alter the terms of,
the Merger;
(c) there shall not be any action or proceeding commenced by or
before any court or governmental agency or authority in the United States, or
threatened by any governmental agency or authority in the United States, that
challenges the consummation of the Merger.
7.2 Additional Conditions Precedent to the Obligations of IFI. In
addition to the conditions contained in Section 7.1, the obligations of IFI to
effect the Merger shall also be subject to the fulfillment as of the Closing
Date of each of the following conditions (unless waived in writing by IFI): The
representations and warranties of FCI contained in Article V shall be true in
all material respects at and as of the date hereof and as of the Closing Date as
if made at and as of such time; and FCI shall have duly performed and complied
in all material respects with all agreements, covenants and conditions required
by this Agreement to be performed or complied with by it prior to or on the
Closing Date.
7.3 Additional Conditions Precedent to the Obligations of FCI. In
addition to the conditions contained in Section 7.1, the obligations of FCI to
effect the Merger shall also be subject to the fulfillment at the Closing Date
of each of the following conditions (unless waived in writing by FCI):
(a) the representations and warranties of IFI contained in Article
III shall be true in all material respects at and as of the date hereof and as
of the Closing Date as if made at and as of the Closing Date; IFI shall have
duly performed and complied in all material respects with all agreements,
covenants and conditions required by this Agreement to be performed or complied
with by it prior to or at the Closing Date; and
(b) IFI shall have delivered to FCI the following documents:
(i) IFI Common Stock certificates issued in the names of the
persons and in the quantities set forth in Exhibit B hereto, representing an
aggregate of 27,980,667 shares;
(ii) A certified copy of IFI's amendment to its Articles of
Incorporation evidencing the completion of a 1 for 10 reverse stock split,
resulting in a total of 2,536,000 shares of IFI Common Stock being issued and
outstanding immediately prior to the Closing;
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(iii) The written resignations of IFI's officers and
directors, effective as of the Closing Date; and
(iv) A copy of IFI's shareholder list, certified by IFI's
transfer agent, dated within five days prior to the Closing.
VIII. TERMINATION
8.1 Termination by Mutual Consent. At any time prior to the Effective
Time, this Agreement and the Agreement of Merger may be terminated by written
consent of IFI and FCI, notwithstanding approval of the Merger by the
shareholders of IFI or FCI.
8.2 Termination by FCI. FCI may terminate this Agreement and the
Agreement of Merger at any time prior to the Effective Time by delivery of
written notice to IFI if:
(a) There has been a material adverse change in IFI's business,
assets, financial condition or prospects since the date of this Agreement;
(b) IFI has violated any material term or provision of this
Agreement which has not been cured by IFI within ten (10) days from the date of
receipt of notice of such violation by FCI; or
(c) Any representation or warranty made by IFI in this Agreement is
false or inaccurate in any material respect or there is any material
misrepresentation or omission by IFI.
8.3 Effect of Termination. In the event of termination as provided
above, this Agreement shall forthwith become of no further force or effect, all
parties hereto shall bear their own costs associated with this Agreement and all
transactions mentioned herein and there shall be no obligation on the part of
any party's officers, directors or shareholders; provided, however, that Section
6.4(b), Section 6.5 and Section 9.8 shall survive such termination and continue
in full force and effect.
IX. GENERAL PROVISIONS
9.1 Notices. All notices, requests, demands or other communications
required or authorized or contemplated to be given by this Agreement shall be in
writing and shall be deemed to have been duly given if hand delivered, sent by
commercial overnight courier or sent by certified or registered mail, postage
prepaid, and addressed as follows:
If to IFI: International Forest Industries, Inc.
0000 Xxxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Attention: President
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With a copy to: Xxxxx X. Xxxxxxxx, Esq.
Resch, Polster, Xxxxxx & Xxxxxx LLP
00000 Xxxxx Xxxxxx Xxxxxxxxx,
Xxxxxx Xxxxx
Xxx Xxxxxxx, XX 00000
If to FCI: Flour City International, Inc.
000 Xxxxxxxxx Xxxxx
Xxxxxxx Xxxx, XX 00000
Attention: President
With a copy to: Xxxxxxx Xxxxxxxx, Esq.
Xxxxxxx, Xxxxxx & Xxxxx
000 Xxxxxxxx Xxxxxxxxx
00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
If to Xxxxxx X. Xxxxxx: At the address for IFI
set forth hereinabove
If to Xxxxx Xxxxxx: At the address for IFI
set forth hereinabove
If to Xxxx X. Xxxxxx: At the address for IFI
set forth hereinabove
If to Xxxx Xxxx: At the address for FCI
set forth hereinabove
If to Xxxxxxx Xxxxx: At the address for FCI
set forth hereinabove
or such other address as the parties hereto may from time to time designate in
writing, prior to the giving of such notice. Any such notice, if hand delivered,
shall be effective upon the date of delivery, and if given by commercial
overnight courier or by certified or registered mail, shall be effective two
business days following the date of sending such notice. A facsimile
transmission, when received, shall be considered delivery of written notice.
9.2 Amendment and Waiver. No amendment or waiver of any provision of
this Agreement shall in any event be effective, unless the same shall be in
writing signed by each of the parties hereto, and then such amendment, waiver or
consent shall be effective only in a specific instance and for the specific
purpose for which given.
9.3 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same Agreement.
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9.4 Assignability. This Agreement shall not be assigned by any party
without the prior written consent of all of the parties hereto, which consent
may be withheld by any such party in its sole and absolute discretion. In the
event of such permitted assignment, this Agreement shall bind and inure to the
benefit of the parties named herein and their respective successors and assigns.
9.5 Entire Agreement. This Agreement and the documents referred to
herein, including without limitation, the Employment Agreement, the Registration
Rights Agreement and the Agreement of Merger, contain the entire understanding
among the parties with respect to the transactions contemplated hereby and
supersede all prior and contemporaneous agreements and understandings whether
oral or written, relating to the subject matter hereof.
9.6 Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Nevada and the parties hereby consent
to the jurisdiction of the Nevada courts for all matters relating to this
Agreement.
9.7 Headings. The section and other headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of the terms and conditions contained therein or of this
Agreement.
9.8 Attorneys' Fees. In the event of any dispute which results in a suit
or other legal proceeding to construe or enforce any provision of this Agreement
or because of any alleged breach, default or misrepresentation in connection
with any of the provisions of this Agreement, the parties agree that the
prevailing party or parties (in addition to all other amounts and relief to
which sued party or parties may be entitled) shall be entitled to recover
reasonable attorneys' fees and other costs and expenses incurred in any action
or proceeding.
9.9. Further Assurances. At the request of any of the parties hereto,
and without further consideration, the other parties agree to execute and
deliver to the other parties such documents and instruments and to do such
further acts as may be necessary or desirable to effectuate the Merger as
contemplated by this Agreement.
(SIGNATURES ON FOLLOWING PAGE)
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IN WITNESS WHEREOF, the parties hereto have signed this Agreement or
have caused this Agreement to be signed by their respective duly authorized
officers as of the date first above written.
INTERNATIONAL FOREST INDUSTRIES, INC.
By: ______________________________
Name: ______________________________
Title: ______________________________
FLOUR CITY INTERNATIONAL, INC.
By: ______________________________
Name: ______________________________
Title: ______________________________
FOR PURPOSES OF THE INDEMNIFICATION PROVISIONS OF SECTION 6.7 OF THIS AGREEMENT
THE FOLLOWING INDIVIDUALS HAVE EXECUTED THIS AGREEMENT THEREBY ACCEPTING THE
TERMS AND CONDITIONS OF SECTION 6.7 AND AGREEING TO BE BOUND THEREBY:
Agreed to and Accepted by:
________________________________
Xxxxxx X. Xxxxxx, an individual
________________________________
Xxxxx Xxxxxx, an individual
________________________________
Xxxx X. Xxxxxx, an individual
________________________________
Xxxx W. Y. Tang, an individual
________________________________
Xxxxxxx Xxxxx, an individual
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EXHIBIT B
ISSUANCE OF IFI COMMON STOCK TO FCI SHAREHOLDERS
Number of IFI Common Shares
Name of Shareholder to be delivered at the Closing
------------------- ------------------------------
Xxxx Xxxx 5,036,520
Xxxxxxx Xxxxx 1,399,033
Xxxxx Xxxxxx 1,119,227
Xxxxx Xxxxxxxx 279,807
Gold Manor Limited 3,357,680
Dynamic Choice Enterprises Inc. 3,357,680
Xxxxxx International Limited 13,430,720
-----------
Total 27,980,667
===========
