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EXHIBIT 99(c)
AGREEMENT AND PLAN OF SHARE EXCHANGE
Agreement entered into on August ___, 2000 by and between INTERNET
MULTI-MEDIA, CORP., a Nevada corporation (the "Buyer"), and OASIS TECHNOLOGY
SRL, a foreign corporation organized pursuant to the laws of the country of
Italy, (the "Target"). The Buyer and the Target are referred to collectively
herein as the "Parties."
This Agreement contemplates a tax-free share exchange of the Target
with and into the Buyer in a reorganization pursuant to Code Section
ss.368(a)(1)(A). The Target Stockholders will receive capital stock in the Buyer
in exchange for their capital stock in the Target.
Now, therefore, in consideration of the premises and the mutual
promises herein made, and in consideration of the representations, warranties,
and covenants herein contained, the Parties agree as follows.
1. Definitions.
"Affiliate" has the meaning set forth in Rule 12b-2 of the regulations
promulgated under the Securities Exchange Act.
"Buyer" has the meaning set forth in the preface above.
"Buyer-owned Share" means any Target Share that the Buyer owns
beneficially.
"Buyer Share" means any share of the Common Stock, $0.001 par value per
share, of the Buyer.
"Certificate of Share Exchange" has the meaning set forth in ss.2(c)
below.
"Closing" has the meaning set forth in ss.2(b) below.
"Closing Date" has the meaning set forth in ss.2(b) below.
"Confidential Information" means any information concerning the
businesses and affairs of the Target and its Subsidiaries that is not already
generally available to the public.
"Conversion Ratio" has the meaning set forth in ss.2(d)(v) below.
"Definitive Target Proxy Materials" means the definitive proxy
materials relating to the Special Target Meeting.
"Nevada General Corporation Law" means the General Corporation Law of
the State of Nevada, as amended.
"Disclosure Schedule" has the meaning set forth in ss.3 below.
"Dissenting Share" means any Target Share which any stockholder who or
which has exercised his or its appraisal rights under the Nevada General
Corporation Law holds of record.
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"Effective Time" has the meaning set forth in ss.2(d)(i) below.
"Exchange Agent" has the meaning set forth in ss.2(e) below.
"GAAP" means United States generally accepted accounting principles as
in effect from time to time.
"IRS" means the Internal Revenue Service.
"Knowledge" means actual knowledge after reasonable investigation.
"Share exchange" has the meaning set forth in ss.2(a) below.
"Most Recent Fiscal Quarter End" has the meaning set forth in ss.3(f)
below.
"Italian Law" means the General Corporation Law of the country of
Italy.
"Ordinary Course of Business" means the ordinary course of business
consistent with past custom and practice (including with respect to quantity and
frequency).
"Party" has the meaning set forth in the preface above.
"Person" means an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, an unincorporated
organization, or a governmental entity (or any department, agency, or political
subdivision thereof).
"Requisite Buyer Board of Directors Approval" means the affirmative
vote of a majority of the Buyer Directors in favor of this Agreement and the
Share exchange.
"Requisite Target Shareholder Approval" means the affirmative vote of a
majority of the Buyer Shares in favor of this Agreement and the Share exchange.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Security Interest" means any mortgage, pledge, lien, encumbrance,
charge, or other security interest, other than (a) mechanic's, materialmen's,
and similar liens, (b) liens for taxes not yet due and payable or for taxes that
the taxpayer is contesting in good faith through appropriate proceedings, (c)
purchase money liens and liens securing rental payments under capital lease
arrangements, and (d) other liens arising in the
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Ordinary Course of Business and not incurred in connection with the borrowing of
money.
"Special Buyer Meeting" has the meaning set below.
"Special Target Meeting" has the meaning set forth below.
"Subsidiary" means any corporation with respect to which a specified
Person (or a Subsidiary thereof) owns a majority of the common stock or has the
power to vote or direct the voting of sufficient securities to elect a majority
of the directors.
"Surviving Corporation" has the meaning set forth in ss.2(a) below.
"Target" has the meaning set forth in the preface above.
"Target Share" means any share of the Common Stock, $0.01 par value per
share, of the Target.
"Target Stockholder" means any Person who or which holds any Target
Shares.
2. Basic Transaction.
(a) The Share exchange. On and subject to the terms and conditions of
this Agreement, the Target will become a majority owned subsidiary of the Buyer
(the "Share exchange") at the Effective Time. The Buyer shall be the corporation
surviving the Share exchange (the "Surviving Corporation").
(b) The Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place at the offices of the law office of
[___________________________] commencing at 9:00 a.m. local time on the second
business day following the satisfaction or waiver of all conditions to the
obligations of the Parties to consummate the transactions contemplated hereby
(other than conditions with respect to actions the respective Parties will take
at the Closing itself) or such other date as the Parties may mutually determine
(the "Closing Date"); provided, however, that the Closing Date shall be no
earlier than August [ ] 2000.
(c) Actions at the Closing. At the Closing, (i) the Target will deliver
to the Buyer the various certificates, instruments, and documents referred to in
ss.6(a) below, (ii) the Buyer will deliver to the Target the various
certificates, instruments, and documents referred to in ss.6(b) below, (iii) the
Buyer and the Target will file with the Secretary of State of the State of
Nevada a Certificate of Share exchange in the form attached hereto as Exhibit B
(the "Certificate of Share exchange"), and (iv) the Buyer will deliver to the
Exchange Agent in the manner provided below in this ss.2 the certificate
evidencing the Buyer Shares issued in the Share exchange.
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(d) Effect of Share exchange.
(i) General. The Share exchange shall become effective at the
time (the "Effective Time") the Buyer and the Target file the
Certificate of Share exchange with the Secretary of State of the States
of Nevada. The Share exchange shall have the effect set forth in the
Nevada General Corporation Law and the Italian General Corporation Law.
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 the Buyer or the Target in order to
carry out and effectuate the transactions contemplated by this
Agreement.
(ii) Certificate of Incorporation. The Certificate of
Incorporation of the Buyer and the Target will be modified as provided
for in the Nevada Statutes.
(iii) Bylaws. The Bylaws of the Target in effect at and as of
the Effective Time will remain the Bylaws of the Target.
(iv) Directors and Officers. As soon as practicable after the
Closing of this Agreement, the Directors of the Surviving Corporation
shall hold a special meeting for the purpose, of, among other things,
the appointment of officers for said Target.
(v) Conversion of Target Shares. At and as of the Effective
Time, (A) each Target Share (other than any Dissenting Share or
Buyer-owned Share) shall be converted into the right to receive
[________________] Buyer Shares. (the ratio of one Target share to
[________] Buyer Shares is referred to herein as the "Conversion
Ratio"), (B) The Target represents that one shareholder owns,
collectively, [_____________] shares of Target shares, and (C) That the
[_____________] shares represented above are one hundred (100%) percent
of the issued and outstanding shares of the Target, and that no other
shares are issued and outstanding. No Target Share shall be deemed to
be outstanding or to have any rights other than those set forth above
in this ss.2(d)(v) after the Effective Time.
(e) Procedure for Payment.
(i) Immediately after the Effective Time, (A) the Buyer will
furnish to The Delaware Escrow Company (the "Exchange Agent") a stock
certificate issued in the name of the holder of the Target shares
representing [_______________]Buyer Shares, and (B) the Target
Shareholder shall deliver a total of [______________] shares to the
Exchange Agent and (C) The Exchange Agent will then cause the
[____________] Buyer shares to be delivered to the Target Shareholder
representing the
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number of Buyer Shares to which he or it is entitled as of the date of
closing.
(ii) The Buyer shall pay all charges and expenses of the
Exchange Agent.
(f) Closing of Transfer Records. After the close of business on the
Closing Date, transfers of Target Shares outstanding prior to the Effective Time
shall not be made on the stock transfer books of the Surviving Corporation.
3. Representations and Warranties of the Target. The Target represents
and warrants to the Buyer that the statements contained in this ss.3 are correct
and complete as of the date of this Agreement and will be correct and complete
as of the Closing Date (as though made then and as though the Closing Date were
substituted for the date of this Agreement throughout this ss.3), except as set
forth in the disclosure schedule accompanying this Agreement and initialed by
the Parties (the "Disclosure Schedule"). The Disclosure Schedule will be
arranged in paragraphs corresponding to the lettered and numbered paragraphs
contained in this ss.3.
(a) Organization, Qualification, and Corporate Power. Each of the
Target and its Subsidiaries is a corporation duly organized, validly existing,
and in good standing under the laws of the jurisdiction of its incorporation.
Each of the Target and its Subsidiaries is duly authorized to conduct business
and is in good standing under the laws of each jurisdiction where such
qualification is required. Each of the Target and its Subsidiaries has full
corporate power and authority to carry on the businesses in which it is engaged
and to own and use the properties owned and used by it.
(b) Capitalization. The entire authorized capital stock of the Target
consists of [_________________] Target Shares, of which all Target Shares are
issued and outstanding and no Target Shares are held in treasury. All of the
issued and outstanding Target Shares have been duly authorized and are validly
issued, fully paid, and nonassessable. There are no outstanding or authorized
options, warrants, purchase rights, subscription rights, conversion rights,
exchange rights, or other contracts or commitments that could require the Target
to issue, sell, or otherwise cause to become outstanding any of its capital
stock. There are no outstanding or authorized stock appreciation, phantom stock,
profit participation, or similar rights with respect to the Target.
(c) Authorization of Transaction. The Target has full power and
authority (including full corporate power and authority) to execute and deliver
this Agreement and to perform its obligations hereunder; provided, however, that
the Target cannot consummate the Share exchange unless and until it receives the
Requisite Target Stockholder Approval. This Agreement constitutes the valid and
legally binding obligation of the Target, enforceable in accordance with its
terms and conditions.
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(d) Noncontravention. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby, will
(i) violate any constitution, statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge, or other restriction of any government,
governmental agency, or court to which any of the Target and its Subsidiaries is
subject or any provision of the charter or bylaws of any of the Target and its
Subsidiaries or (ii) conflict with, result in a breach of, constitute a default
under, result in the acceleration of, create in any party the right to
accelerate, terminate, modify, or cancel, or require any notice under any
agreement, contract, lease, license, instrument or other arrangement to which
any of the Target and its Subsidiaries is a party or by which it is bound or to
which any of its assets is subject (or result in the imposition of any Security
Interest upon any of its assets). Other than in connection with the provisions
of the Nevada General Corporation Law, the Securities Exchange Act, the
Securities Act, and the state securities laws, none of the Target and its
Subsidiaries needs to give any notice to, make any filing with, or obtain any
authorization, consent, or approval of any government or governmental agency in
order for the Parties to consummate the transactions contemplated by this
Agreement.
(e) Filings with the SEC. The Target will make all filings with the SEC
that it may been required to make.
(f) Financial Statements. The financial statements included in or
incorporated by reference have been prepared in accordance with GAAP applied on
a consistent basis throughout the periods covered thereby and present fairly the
financial condition of the Target and its Subsidiaries as of the indicated dates
and the results of operations of the Target and its Subsidiaries for the
indicated periods; provided, however, that the interim statements are subject to
normal year-end adjustments.
(g) Events Subsequent to Most Recent Fiscal Quarter End. Since the Most
Recent Fiscal Quarter End, there has not been any material adverse change in the
business, financial condition, operations, results of operations, or future
prospects of the Target and its Subsidiaries taken as a whole.
(h) Undisclosed Liabilities. None of the Target and its Subsidiaries
has any liability (whether known or unknown, whether asserted or unasserted,
whether absolute or contingent, whether accrued or unaccrued, whether liquidated
or unliquidated, and whether due or to become due), including any liability for
taxes, except for (i) liabilities set forth on the face of the balance sheet
dated as of the Most Recent Fiscal Quarter End (rather than in any notes
thereto) and (ii) liabilities which have arisen after the Most Recent Fiscal
Quarter End in the Ordinary Course of Business (none of which results from,
arises out of, relates to, is in the nature of, or was caused by any breach of
contract, breach of warranty, tort, infringement, or violation of law).
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(i) Brokers' Fees. None of the Target and its Subsidiaries has any
liability or obligation to pay any fees or commissions to any broker, finder, or
agent with respect to the transactions contemplated by this Agreement.
(j) Continuity of Business Enterprise. The Target operates at least one
significant historic business line, or owns at least a significant portion of
its historic business assets, in each case within the meaning of Reg.
ss.1.368-1(d).
(k) Disclosure. The Target's statements to its shareholders will not
contain any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements made therein, in the light of the
circumstances under which they will be made, not misleading; provided, however,
that the Target makes no representation or warranty with respect to any
information that the Buyer will supply specifically for use in any Proxy
Materials. None of the information that the Target will supply will contain any
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements made therein, in the light of the circumstances
under which they will be made, not misleading.
4. Representations and Warranties of the Buyer. The Buyer represents
and warrants to the Target that the statements contained in this '4 are correct
and complete as of the date of this Agreement and will be correct and complete
as of the Closing Date (as though made then and as though the Closing Date were
substituted for the date of this Agreement throughout this ss.4), except as set
forth in the Disclosure Schedule. The Disclosure Schedule will be arranged in
paragraphs corresponding to the numbered and lettered paragraphs contained in
this ss.4.
(a) Organization. The Buyer is a corporation duly organized, validly
existing, and in good standing under the laws of the jurisdiction of its
incorporation.
(b) Capitalization. The entire authorized capital stock of the Buyer
consists of 100,000,000 Buyer Shares, of which 25,382,247 Common, 0.001 par
value Buyer Shares are issued and outstanding and no Buyer Shares are held in
treasury. All of the Buyer Shares to be issued in the Share exchange have been
duly authorized and, upon consummation of the Share exchange, will be validly
issued, fully paid, and nonassessable.
(c) Authorization of Transaction. The Buyer has full power and
authority (including full corporate power and authority) to execute and deliver
this Agreement and to perform its obligations hereunder; provided, however, that
the Buyer cannot consummate the Share exchange unless and until it receives the
Requisite Buyer Stockholder Approval. This Agreement constitutes the valid and
legally binding obligation of the Buyer, enforceable in accordance with its
terms and conditions.
(d) Noncontravention. To the Knowledge of any director or officer of
the Buyer, neither the execution and the delivery of
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this Agreement, nor the consummation of the transactions contemplated hereby,
will (i) violate any constitution, statute, regulation, rule, injunction,
judgment, order, decree, ruling, charge, or other restriction of any government,
governmental agency, or court to which the Buyer is subject or any provision of
the charter or bylaws of the Buyer or (ii) conflict with, result in a breach of,
constitute a default under, result in the acceleration of, create in any party
the right to accelerate, terminate, modify, or cancel, or require any notice
under any agreement, contract, lease, license, instrument or other arrangement
to which the Buyer is a party or by which it is bound or to which any of its
assets is subject, except where the violation, conflict, breach, default,
acceleration, termination, modification, cancellation, or failure to give notice
would not have a material adverse effect on the ability of the Parties to
consummate the transactions contemplated by this Agreement.
(e) Brokers' Fees. The Buyer does not have any liability or obligation
to pay any fees or commissions to any broker, finder, or agent with respect to
the transactions contemplated by this Agreement for which any of the Target and
its Subsidiaries could become liable or obligated.
(f) Continuity of Business Enterprise. It is the present intention of
the Buyer to continue at least one significant historic business line of the
Target, or to use at least a significant portion of the Target's historic
business assets in a business, in each case within the meaning of Reg.
ss.1.368-1(d).
(g) Disclosure. The Buyer's's statements to its shareholders will not
contain any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements made therein, in the light of the
circumstances under which they will be made, not misleading provided, however,
that the Buyer makes no representation or warranty with respect to any
information that the Target will supply specifically for use in any Proxy
Materials. None of the information that the Buyer will supply will contain any
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements made therein, in the light of the circumstances
under which they will be made, not misleading.
5. Covenants. The Parties agree as follows with respect to the period
from and after the execution of this Agreement.
(a) General. Each of the Parties will use its best efforts to take all
action and to do all things necessary in order to consummate and make effective
the transactions contemplated by this Agreement (including satisfaction, but not
waiver, of the closing conditions set forth in ss.6 below).
(b) Notices and Consents. The Target will give any notices (and will
cause each of its Subsidiaries to give any notices) to third parties, and will
use its [reasonable] best efforts to obtain (and will cause each of its
Subsidiaries to use its
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[reasonable] best efforts to obtain) any third party consents, that the Buyer
[reasonably] may request in connection with the matters referred to in ss.3(d)
above.
(c) Regulatory Matters and Approvals. Each of the Parties will (and the
Target will cause each of its Subsidiaries to) give any notices to, make any
filings with, and use its [reasonable] best efforts to obtain any
authorizations, consents, and approvals of governments and governmental agencies
in connection with the matters referred to in ss.3(d) and ss.4(d) above.
Without limiting the generality of the foregoing:
(i) Italian Corporation Law. The Target will call a special meeting of its
stockholders (the "Special Target Meeting") as soon as practicable in order that
the stockholders may consider and vote upon the adoption of this Agreement and
the approval of the Share exchange in accordance with the Italian General
Corporation Law.
(d) Operation of Business. The Target will not (and will not cause or
permit any of its Subsidiaries to) engage in any practice, take any action, or
enter into any transaction outside the Ordinary Course of Business. Without
limiting the generality of the foregoing:
(i) none of the Target and its Subsidiaries will authorize or
effect any change in its charter or bylaws;
(ii) none of the Target and its Subsidiaries will grant any
options, warrants, or other rights to purchase or obtain any of its
capital stock or issue, sell, or otherwise dispose of any of its
capital stock (except upon the conversion or exercise of options,
warrants, and other rights currently outstanding);
(iii) none of the Target and its Subsidiaries will declare,
set aside, or pay any dividend or distribution with respect to its
capital stock (whether in cash or in kind), or redeem, repurchase, or
otherwise acquire any of its capital stock [, in either case outside
the Ordinary Course of Business];
(iv) none of the Target and its Subsidiaries will issue any
note, bond, or other debt security or create, incur, assume, or
guarantee any indebtedness for borrowed money or capitalized lease
obligation outside the Ordinary Course of Business;
(v) none of the Target and its Subsidiaries will impose any
Security Interest upon any of its assets outside the Ordinary Course of
Business;
(vi) none of the Target and its Subsidiaries will make any
capital investment in, make any loan to, or acquire the securities or
assets of any other Person outside the Ordinary Course of Business;
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(vii) none of the Target and its Subsidiaries will make any
change in employment terms for any of its directors, officers, and
employees outside the Ordinary Course of Business; and
(viii) none of the Target and its Subsidiaries will commit to
any of the foregoing.
(e) Full Access. The Target will permit representatives of the Buyer to
have full access to all premises, properties, personnel, books, records
(including tax records), contracts, and documents of or pertaining to each of
the Target and its Subsidiaries. The Buyer will treat and hold as such any
Confidential Information it receives from any of the Target and its Subsidiaries
in the course of the reviews contemplated by this ss.5(g), will not use any of
the Confidential Information except in connection with this Agreement, and, if
this Agreement is terminated for any reason whatsoever, agrees to return to the
Target all tangible embodiments (and all copies) thereof which are in its
possession.
(f) Notice of Developments. Each Party will give prompt written notice
to the other of any material adverse development causing a breach of any of its
own representations and warranties in ss.3 and ss.4 above. No disclosure by any
Party pursuant to this ss.5(h), however, shall be deemed to amend or supplement
the Disclosure Schedule or to prevent or cure any misrepresentation, breach of
warranty, or breach of covenant.
(g) Continuity of Business Enterprise. The Buyer will continue at least
one significant historic business line of the Target, or use at least a
significant portion of the Target's historic business assets in a business, in
each case within the meaning of Reg. ss.1.368-1(d), except that the Buyer may
transfer the Target's historic business assets (i) to a corporation that is a
member of the Buyer's "qualified group," within the meaning of Reg.
ss.1.368-1(d)(4)(ii), or (ii) to a partnership if (A) one or more members of the
Buyer's "qualified group" have active and substantial management functions as a
partner with respect to the Target's historic business or (B) members of the
Buyer's "qualified group" in the aggregate own an interest in the partnership
representing a significant interest in the Target's historic business, in each
case within the meaning of Reg. ss.1.368-1(d)(4)(iii).
6. Conditions to Obligation to Close.
(a) Conditions to Obligation of the Buyer. The obligation of the Buyer
to consummate the transactions to be performed by it in connection with the
Closing is subject to satisfaction of the following conditions:
(i) this Agreement and the Share exchange shall have received
the Requisite Target Stockholder Approval;
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(ii) the Target and its Subsidiaries shall have procured all
of the third party consents specified in ss.5(b) above;
(iii) the representations and warranties set forth in ss.3
above shall be true and correct in all material respects at and as of
the Closing Date;
(iv) the Target shall have performed and complied with all of
its covenants hereunder in all material respects through the Closing;
(v) No action, suit, or proceeding shall be pending or
threatened before any court or quasi-judicial or administrative agency
of any federal, state, local, or foreign jurisdiction or before any
arbitrator wherein an unfavorable injunction, judgment, order, decree,
ruling, or charge would (A) prevent consummation of any of the
transactions contemplated by this Agreement, (B) cause any of the
transactions contemplated by this Agreement to be rescinded following
consummation, (C) affect adversely the right of the Surviving
Corporation to own the former assets, to operate the former businesses,
and to control the former Subsidiaries of the Target, or (D) affect
adversely the right of any of the former Subsidiaries of the Target to
own its assets and to operate its businesses (and no such injunction,
judgment, order, decree, ruling, or charge shall be in effect);]
(vi) the Target shall have delivered to the Buyer a
certificate to the effect that each of the conditions specified above
in ss.6(a)(i)-(v) is satisfied in all respects;
(vii) this Agreement and the Share exchange shall have
received the Requisite Approval from the Buyer's Board of Directors;
(viii) the Buyer shall have received from counsel to the
Target an opinion in form and substance is deemed appropriate by the
Buyer's counsel, addressed to the Buyer, and Dated as of the Closing
Date;
(ix) The Buyer shall have received the resignations, effective
as of the Closing, of each director and officer of the Target and its
Subsidiaries other than those whom the Buyer shall have specified in
writing at least [five] business days prior to the Closing;] and
(x) all actions to be taken by the Target in connection with
consummation of the transactions contemplated hereby and all
certificates, opinions, instruments, and other documents required to
effect the transactions contemplated hereby will be reasonably
satisfactory in form and substance to the Buyer;
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The Buyer may waive any condition specified in this ss.6(a) if it
executes a writing so stating at or prior to the Closing.
(b) Conditions to Obligation of the Target. The obligation of the
Target to consummate the transactions to be performed by it in connection with
the Closing is subject to satisfaction of the following conditions:
(i) this Agreement and the Share exchange shall have received
the Requisite Approval from the Buyer's Board of Directors;
(ii) the representations and warranties set forth in ss.4
above shall be true and correct in all material respects at and as of
the Closing Date;
(iii) the Buyer shall have performed and complied with all of
its covenants hereunder in all material respects through the Closing;
(iv) the Buyer shall have delivered to the Target a
certificate to the effect that each of the conditions specified above
in ss.6(b)(i)-(vi) is satisfied in all respects;
(v) this Agreement and the Share exchange shall have received
the Requisite Target Stockholder Approval;
(vi) the Target shall have received from counsel to the Buyer
an opinion in form and substance as set forth in Exhibit F attached
hereto, addressed to the Target, and dated as of the Closing Date;
(vii) all actions to be taken by the Buyer in connection with
consummation of the transactions contemplated hereby and all
certificates, opinions, instruments, and other documents required to
effect the transactions contemplated hereby will be [reasonably]
satisfactory in form and substance to the Target.
The Target may waive any condition specified in this ss.6(b) if it
executes a writing so stating at or prior to the Closing.
7. Termination.
(a) Termination of Agreement. Either of the Parties may terminate this
Agreement with the prior authorization of its board of directors (whether before
or after stockholder approval) as provided below:
(i) the Parties may terminate this Agreement by mutual written
consent at any time prior to the Effective Time;
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(ii) the Buyer may terminate this Agreement by giving written
notice to the Target at any time prior to the Effective Time (A) in the
event the Target has breached any material representation, warranty, or
covenant contained in this Agreement in any material respect, the Buyer
has notified the Target of the breach, and the breach has continued
without cure for a period of [30 days] after the notice of breach or
(B) if the Closing shall not have occurred on or before August [__],
2000 by reason of the failure of any condition precedent under ss.6(a)
hereof (unless the failure results primarily from the Buyer breaching
any representation, warranty, or covenant contained in this Agreement);
(iii) the Target may terminate this Agreement by giving
written notice to the Buyer at any time prior to the Effective Time (A)
in the event the Buyer has breached any material representation,
warranty, or covenant contained in this Agreement in any material
respect, the Target has notified the Buyer of the breach, and the
breach has continued without cure for a period of [30 days] after the
notice of breach or (B) if the Closing shall not have occurred on or
before August [__], 2000, by reason of the failure of any condition
precedent under ss.6(b) hereof (unless the failure results primarily
from the Target breaching any representation, warranty, or covenant
contained in this Agreement);
(iv) any Party may terminate this Agreement by giving written
notice to the other Party at any time after the Special Target Meeting
in the event this Agreement and the Share exchange fail to receive the
Requisite Target Stockholder Approval.
(b) Effect of Termination. If any Party terminates this Agreement
pursuant to ss.7(a) above, all rights and obligations of the Parties hereunder
shall terminate without any liability of any Party to any other Party (except
for any liability of any Party then in breach); provided, however, that the
confidentiality provisions contained in ss.5(g) above shall survive any such
termination.
8. Miscellaneous.
(a) Survival. None of the representations, warranties, and covenants of
the Parties (other than the provisions in ss.2 above concerning issuance of the
Buyer Shares, the provisions in ss.5(j) above concerning insurance and
indemnification will survive the Effective Time.
(b) Press Releases and Public Announcements. No Party shall issue any
press release or make any public announcement relating to the subject matter of
this Agreement without the prior written approval of the other Party; provided,
however, that any Party may make any public disclosure it believes in good faith
is required by applicable law or any listing or trading agreement
14
AGREEMENT AND PLAN OF SHARE EXCHANGE
August [__], 2000
Page 14
concerning its publicly-traded securities (in which case the disclosing Party
will use its [reasonable] best efforts to advise the other Party prior to making
the disclosure).
(c) No Third Party Beneficiaries. This Agreement shall not confer any
rights or remedies upon any Person other than the Parties and their respective
successors and permitted assigns; provided, however, that (i) the provisions in
ss.2 above concerning issuance of the Buyer Shares are intended for the benefit
of the Target Stockholders and (ii) the provisions in ss.5(j) above concerning
insurance and indemnification are intended for the benefit of the individuals
specified therein and their respective legal representatives.
(d) Entire Agreement. This Agreement (including the documents referred
to herein) constitutes the entire agreement between the Parties and supersedes
any prior understandings, agreements, or representations by or between the
Parties, written or oral, to the extent they related in any way to the subject
matter hereof.
(e) Succession and Assignment. This Agreement shall be binding upon and
inure to the benefit of the Parties named herein and their respective successors
and permitted assigns. No Party may assign either this Agreement or any of its
rights, interests, or obligations hereunder without the prior written approval
of the other Party.
(f) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
(g) Headings. The section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
(h) Notices. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice, request, demand, claim,
or other communication hereunder shall be deemed duly given if (and then two
business days after) it is sent by registered or certified mail, return receipt
requested, postage prepaid, and addressed to the intended recipient as set forth
below:
If to the Target: Corporate Offices
Copy to:
If to the Buyer: Corporate Offices
Copy to:
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AGREEMENT AND PLAN OF SHARE EXCHANGE
August [__], 2000
Page 15
Any Party may send any notice, request, demand, claim, or other
communication hereunder to the intended recipient at the address set forth above
using any other means (including personal delivery, expedited courier, messenger
service, telecopy, telex, ordinary mail, or electronic mail), but no such
notice, request, demand, claim, or other communication shall be deemed to have
been duly given unless and until it actually is received by the intended
recipient. Any Party may change the address to which notices, requests, demands,
claims, and other communications hereunder are to be delivered by giving the
other Party notice in the manner herein set forth.
(i) Governing Law. This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of Nevada without giving effect
to any choice or conflict of law provision or rule (whether of the State of
Nevada or any other jurisdiction) that would cause the application of the laws
of any jurisdiction other than the State of Nevada.
(j) Amendments and Waivers. The Parties may mutually amend any
provision of this Agreement at any time prior to the Effective Time with the
prior authorization of their respective boards of directors; provided, however,
that any amendment effected subsequent to stockholder approval will be subject
to the restrictions contained in the Nevada General Corporation Law. No
amendment of any provision of this Agreement shall be valid unless the same
shall be in writing and signed by both of the Parties. No waiver by any Party of
any default, misrepresentation, or breach of warranty or covenant hereunder,
whether intentional or not, shall be deemed to extend to any prior or subsequent
default, misrepresentation, or breach of warranty or covenant hereunder or
affect in any way any rights arising by virtue of any prior or subsequent such
occurrence.
(k) Severability. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions hereof or
the validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
(l) Expenses. Each of the Parties will bear its own costs and expenses
(including legal fees and expenses) incurred in connection with this Agreement
and the transactions contemplated hereby.
(m) Construction. The Parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the Parties and no presumption or burden of proof shall
arise favoring or disfavoring any Party by virtue of the authorship of any of
the provisions of this Agreement. Any reference to any federal, state, local, or
foreign statute or law shall be deemed also to
16
AGREEMENT AND PLAN OF SHARE EXCHANGE
August [__], 2000
Page 16
refer to all rules and regulations promulgated thereunder, unless the context
otherwise requires. The word "including" shall mean including without
limitation.
(n) Incorporation of Exhibits and Schedules. The Exhibits and Schedules
identified in this Agreement are incorporated herein by reference and made a
part hereof.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on
[as of] the date first above written.
INTERNET MULTI-MEDIA, CORP.
Buyer
By:
----------------------------
Title:
--------------------------
OASIS TECHNOLOGY SRL
Target Company
By:
----------------------------
Title:
--------------------------
