EXHIBIT 1.1
AMENDED AND RESTATED
PLAN AND AGREEMENT TO EXCHANGE STOCK
BY AND BETWEEN
RAINWIRE PARTNERS, INC.,
AND
OASIS GROUP, INC.
DATED AS OF DECEMBER 19, 2001
TABLE OF CONTENTS
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ARTICLE I
THE SHARE EXCHANGE
Section 1.01. The Share Exchange.......................................... A-1
Section 1.02. Time and Place of Closing................................... A-1
Section 1.03. Effective Time.............................................. A-1
Section 1.04. Amendment to Certificate of Incorporation................... A-1
ARTICLE II
MANNER OF CONVERTING SHARES
Section 2.01. Share Exchange Consideration................................ A-2
Section 2.02. Conversion of Shares........................................ A-2
Section 2.03. Adjustments to Exchange Ratio............................... A-2
Section 2.04. Shares Held by Oasis........................................ A-2
Section 2.05. Fractional Shares........................................... A-2
ARTICLE III
EXCHANGE OF SHARES
Section 3.01. Exchange Agent.............................................. A-2
Section 3.02. Instructions to Exchange Agent.............................. A-3
Section 3.03. Exchange Procedures......................................... A-3
Section 3.04. Rights of Former Oasis Owners............................... A-3
Section 3.05. No Further Ownership Rights in Oasis Stock.................. A-3
Section 3.06. No Liability................................................ A-3
Section 3.07. Lost Certificates........................................... A-3
Section 3.08. Withholding Rights.......................................... A-3
Section 3.09. Further Assurances.......................................... A-4
Section 3.10. No Fractional Shares........................................ A-4
ARTICLE IV
FURTHER TERMS AND COVENANTS
Section 4.01. Preparation of Registration Statement....................... A-4
Section 4.02. Oasis Shareholder Approval.................................. A-5
Section 4.03. Rainwire Shareholder Approval............................... A-5
Section 4.04. New Officers and Directors.................................. A-5
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF OASIS
Section 5.01. Organization, Authority and Capacity........................ A-5
Section 5.02. Authorization and Validity.................................. A-6
Section 5.03. Absence of Conflicting Agreements or Required Consents...... A-6
Section 5.04. Governing Documents of Oasis................................ A-6
Section 5.05. Outstanding and Authorized Capitalization................... A-6
Section 5.06. Financial Statements........................................ A-6
Section 5.07. Absence of Changes.......................................... A-7
Section 5.08. No Undisclosed Liabilities.................................. A-8
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Section 5.09. Litigation, Etc. ........................................... A-9
Section 5.10. No Violation of Law......................................... A-9
Section 5.11. Real and Personal Property.................................. A-9
Section 5.12. Contracts and Commitments................................... A-9
Section 5.13. Employment and Labor Matters................................ A-11
Section 5.14. Employee Benefit Matters.................................... A-11
Section 5.15. Insurance Policies.......................................... A-12
Section 5.16. Taxes....................................................... A-12
Section 5.17. Interested Transactions..................................... A-12
Section 5.18. Intellectual Property....................................... A-12
Section 5.19. Required Vote of Oasis Shareholders......................... A-13
Section 5.20. Brokerage................................................... A-13
Section 5.21. Statements True and Correct................................. A-13
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF RAINWIRE
Section 6.01. Organization, Authority and Capacity........................ A-13
Section 6.02. Authorization and Validity.................................. A-14
Section 6.03. Absence of Conflicting Agreements or Required Consents...... A-14
Section 6.04. Governing Documents......................................... A-14
Section 6.05. Outstanding and Authorized Capitalization................... A-14
Section 6.06. Reports and Financial Statements............................ A-15
Section 6.07. Absence of Changes.......................................... A-15
Section 6.08. No Undisclosed Liabilities.................................. A-17
Section 6.09. Litigation, Etc. ........................................... A-17
Section 6.10. No Violation of Law......................................... A-17
Section 6.11. Real and Personal Property.................................. A-17
Section 6.12. Contracts and Commitments................................... A-18
Section 6.13. Employment and Labor Matters................................ A-19
Section 6.14. Employee Benefit Matters.................................... A-20
Section 6.15. Insurance Policies.......................................... A-20
Section 6.16. Taxes....................................................... A-20
Section 6.17. Interested Transactions..................................... A-21
Section 6.18. Intellectual Property....................................... A-21
Section 6.19. Brokerage................................................... A-21
Section 6.20. Subsidiaries................................................ A-21
Section 6.21. Statements True and Correct................................. A-21
ARTICLE VII
ADDITIONAL AGREEMENTS
Section 7.01. Access to Information....................................... A-22
Section 7.02. No-Shop..................................................... A-22
Section 7.03. Affirmative Covenants of Oasis.............................. A-22
Section 7.04. Negative Covenants of Oasis................................. A-23
Section 7.05. Affirmative Covenants of Rainwire........................... A-25
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Section 7.06. Negative Covenants of Rainwire.............................. A-25
Section 7.07. Confidentiality............................................. A-25
Section 7.08. Public Announcements........................................ A-25
Section 7.09. Filings with State Offices.................................. A-25
Section 7.10. Conditions to Closing....................................... A-26
ARTICLE VIII
CONDITIONS TO OBLIGATIONS OF RAINWIRE
Section 8.01. Representations and Warranties.............................. A-26
Section 8.02. Performance; Covenants...................................... A-26
Section 8.03. Necessary Consents and Approvals............................ A-26
Section 8.04. No Material Adverse Change.................................. A-26
Section 8.05. No Injunction, Etc. ........................................ A-27
Section 8.06. Oasis Shareholder Approval.................................. A-27
Section 8.07. Effectiveness of the Form S-4............................... A-27
Section 8.08. Certificate of Share Exchange............................... A-27
Section 8.09. Tax-Free Share Exchange..................................... A-27
ARTICLE IX
CONDITIONS TO OBLIGATIONS OF OASIS AND OASIS SHAREHOLDERS
Section 9.01. Representations and Warranties.............................. A-27
Section 9.02. Performance; Covenants...................................... A-27
Section 9.03. Necessary Consents and Approvals............................ A-28
Section 9.04. No Material Adverse Change.................................. A-28
Section 9.05. No Injunction, Etc. ........................................ A-28
Section 9.06. Effectiveness of Form S-4................................... A-28
Section 9.07. Certificate of Share Exchange............................... A-28
Section 9.08. Tax-Free Share Exchange..................................... A-28
Section 9.09. OTC Bulletin Board Listing.................................. A-28
Section 9.10. Rainwire Shareholder Approval............................... A-28
ARTICLE X
TERMINATION
Section 10.01. Right of Termination........................................ A-28
Section 10.02. Effect of Termination....................................... A-29
ARTICLE XI
SURVIVAL OF TERMS; INDEMNIFICATION
Section 11.01. Indemnification by Rainwire................................. A-29
Section 11.02. Indemnification by Oasis and the Oasis Shareholders......... A-29
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01. Notices..................................................... A-30
Section 12.02. Expenses.................................................... A-30
Section 12.03. Further Assurances.......................................... A-30
Section 12.04. Waiver...................................................... A-30
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Section 12.05. Assignment.................................................. A-30
Section 12.06. Binding Effect.............................................. A-30
Section 12.07. Headings.................................................... A-30
Section 12.08. Entire Agreement............................................ A-30
Section 12.09. Governing Law; Severability................................. A-31
Section 12.10. Counterparts................................................ A-31
Section 12.11. Brokers and Finders......................................... A-31
Section 12.12. Schedules and Exhibits...................................... A-31
Section 12.13. Enforcement of Agreement.................................... A-31
ARTICLE XIII
CERTAIN DEFINITIONS......................................................... A-31
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PLAN AND AGREEMENT TO EXCHANGE STOCK
THIS AMENDED AND RESTATED
PLAN AND AGREEMENT TO EXCHANGE STOCK (this
"Agreement") is made and entered into as of December 19, 2001, by and between
RAINWIRE PARTNERS, INC., a Delaware corporation ("Rainwire"), and OASIS GROUP,
INC., a
Georgia corporation ("Oasis").
WHEREAS, Oasis and Rainwire intend to effect a reorganization pursuant to
Section 368(a)(1)(B) of the Code (as hereinafter defined) whereby Rainwire will
acquire all of the outstanding shares of stock of Oasis from the Oasis
Shareholders in exchange for newly issued shares of common stock of Rainwire.
NOW, THEREFORE, for and in consideration of these premises and the mutual
covenants, promises, agreements, representations and warranties set forth
herein, and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, Rainwire and Oasis hereby agree as follows:
ARTICLE I
THE SHARE EXCHANGE
SECTION 1.01. THE SHARE EXCHANGE. Upon the terms and subject to the
conditions set forth in this Agreement, and in accordance with the
Georgia
Business Corporation Code ("GBCC") and the General Corporation Law of the State
of Delaware ("DGCL"), Rainwire will acquire all of the outstanding shares of
stock of Oasis from the Oasis Shareholders in exchange for validly issued, fully
paid and nonassessable shares of common stock of Rainwire, and, after giving
effect to all of the transactions contemplated by this Agreement, (a) the
Rainwire shareholders and the Oasis Shareholders will jointly own all of the
issued and outstanding shares of Rainwire and (b) Oasis will be a wholly-owned
subsidiary of Rainwire (the "Share Exchange").
SECTION 1.02. TIME AND PLACE OF CLOSING. The "Closing" shall mean the
consummation of the exchange of Rainwire Shares and the Oasis Shares, as set
forth in Article III, as well as the consummation of any other transactions
which are contemplated by this Agreement to occur at Closing. Closing shall take
place no later than within three business days following the date upon which all
of the conditions precedent contained in Articles VIII and IX of this Agreement
have occurred and all regulatory matters have been complied with, at 10:00 a.m.,
local time, at the offices of Xxxxx Xxxx, LLP, Suite 2100, 000 Xxxxxxxxx Xxxxxx,
X.X. Xxxxxxx, Xxxxxxx 00000, or at such other time and place as the parties may
agree in writing. The date the Closing actually occurs is the "Closing Date."
SECTION 1.03. EFFECTIVE TIME. Subject to the provisions of this
Agreement, the parties shall file a Certificate of Share Exchange in such form
as is required by, and executed in accordance with, the relevant provisions of
the GBCC, including sec. 14-2-1105, and shall make all other filings or
recordings required under the GBCC as soon as practicable on or after the
Closing Date. The Share Exchange and other transactions contemplated by this
Agreement shall become effective on the date and at the time the Certificate of
Share Exchange reflecting the Share Exchange is duly filed with the Secretary of
State of the State of
Georgia, or at such other time and date as Oasis,
Rainwire, and the Oasis Shareholders shall agree and as specified in the
Certificate of Share Exchange (the "Effective Time").
SECTION 1.04. AMENDMENT TO CERTIFICATE OF INCORPORATION. Prior to the
Closing, Rainwire will effect a twenty-for-one reverse split of its authorized
and outstanding common stock so that Rainwire will have approximately 495,495
shares of authorized common stock after the Reverse split (the "Reverse Split"),
and after the Reverse Split shall amend its Amended and Restated Certificate of
Incorporation to increase its authorized shares of common stock to 100,000,000
(the "Amendment"). Rainwire shall use its best efforts to obtain the written
consent of the majority of the Rainwire Shareholders in favor of the Reverse
Split and Amendment, and shall timely comply with all applicable state and
federal laws in connection with the shareholder consent, including the filing
and mailing of a Schedule 00X (xx Xxxxxxxxxxxx
X-0
Xxxxxxxxx on Form S-4) pursuant to the Securities Exchange Act of 1934 to all
shareholders as of the record date that did not provide Rainwire with their
written consent to the Reverse Split and Amendment.
ARTICLE II
MANNER OF CONVERTING SHARES
SECTION 2.01. SHARE EXCHANGE CONSIDERATION. Upon the terms and subject to
the conditions of this Agreement, the Oasis Shareholders shall receive, as
consideration for the Share Exchange of all of the issued and outstanding shares
of Oasis's Common Stock, no par value ("Oasis Common Stock"), shares of the
Common Stock, par value $.001, of Rainwire ("Rainwire Common Stock"), such
shares of Rainwire Common Stock to be issuable at the Closing in accordance with
the terms of this Agreement. At the Effective Time, all such shares of Rainwire
Common Stock shall be duly and validly issued, fully paid and nonassessable.
SECTION 2.02. CONVERSION OF SHARES. Subject to the provisions of this
Article II, at the Effective Time, by virtue of the Share Exchange and without
any action on the part of the parties hereto or the shareholders of any of the
parties, each 2.5 shares of the Fully Diluted Shares of Oasis Common Stock
issued and outstanding at the Effective Time shall, by virtue of the Share
Exchange and without any action on the part of the holder thereof, automatically
be converted into one (1) share of Rainwire Common Stock (the "Exchange Ratio").
"Fully Diluted Shares" shall be equal to the total number of outstanding shares
of Oasis Common Stock calculated on a fully diluted, fully converted basis as
though any and all convertible debt and equity securities (including any Oasis
Preferred Stock and any outstanding warrants and outstanding options (whether
vested or unvested)) had been converted or exercised into Common Stock. The
Exchange Ratio shall not change as a result of fluctuations in the market price
of Rainwire Common Stock between the date of this Agreement and the Effective
Time. The aggregate number of shares of Rainwire Common Stock issued pursuant to
this Section 2.02 shall be referred to as "Share Exchange Shares."
SECTION 2.03. ADJUSTMENTS TO EXCHANGE RATIO. The Exchange Ratio shall be
equitably adjusted to reflect fully the effect of any stock split, reverse
split, stock dividend (including any dividend or distribution of securities
convertible into Rainwire Common Stock or Oasis Common Stock), reorganization,
recapitalization or other like change with respect to Rainwire Common Stock or
Oasis Common Stock occurring after the date of this Agreement and prior to the
Effective Time. Any such change for which a record date is established shall be
deemed for the purposes of this Section 2.03 to have occurred on the record
date. Notwithstanding the foregoing, the Exchange Ratio shall not be adjusted
for any effects that the Stock Dividend and Amendment shall have on the Rainwire
Common Stock.
SECTION 2.04. SHARES HELD BY OASIS. Each share of Oasis Common Stock held
in treasury by Oasis, shall be canceled and retired at the Effective Time, and
no consideration shall be issued in exchange therefor.
SECTION 2.05. FRACTIONAL SHARES. No certificates representing fractional
shares of Rainwire Common Stock will be issued as a result of the Share
Exchange. Any fractional share interest to which an Oasis Shareholder would
otherwise be entitled to receive shall be rounded up to the nearest whole share
if such fraction is 0.5 or greater and shall be rounded down to the nearest
whole share if such fraction is less than 0.5.
ARTICLE III
EXCHANGE OF SHARES
SECTION 3.01. EXCHANGE AGENT. Rainwire's transfer agent shall serve as
the exchange agent (the "Exchange Agent") in the Share Exchange.
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SECTION 3.02. INSTRUCTIONS TO EXCHANGE AGENT. At or prior to the
Effective Time, Rainwire shall give instructions to the Exchange Agent
concerning the issuance of such certificates representing the aggregate number
of shares of Rainwire Common Stock issuable pursuant to Section 2.02 in exchange
for outstanding shares of Oasis Common Stock.
SECTION 3.03. EXCHANGE PROCEDURES. Upon surrender of a certificate for
cancellation to the Exchange Agent, together with a letter of transmittal, duly
executed, and such other documents as may reasonably be required by the Exchange
Agent, the holder of such certificate shall be entitled to receive in exchange
therefor a Rainwire certificate representing that number of whole shares of
Rainwire Common Stock that such holder has the right to receive pursuant to the
provisions of this Article III, and the certificate so surrendered shall
forthwith be cancelled. Until surrendered as contemplated by this Section 3.03,
each certificate shall be deemed at any time after the Effective Time to
represent only the right to receive upon such surrender the Share Exchange
Consideration that the holder thereof has right to receive pursuant to the
provisions of this Article III. No interest will be paid or will accrue on any
cash payable to holders of certificates pursuant to the provisions of this
Article.
Rainwire shall not be obligated to deliver the consideration to which any
Oasis Shareholder is entitled as a result of the Share Exchange until such
holder surrenders his or her certificate or certificates representing the shares
of Oasis Common Stock for exchange as provided in this Article III or such
holder provides an appropriate affidavit regarding loss of such certificate or
agreement and an indemnification in favor of Rainwire pursuant to Section 3.07
hereof.
SECTION 3.04. RIGHTS OF FORMER OASIS OWNERS. At the Effective Time, the
stock transfer books of Oasis shall be closed and no transfer of Oasis Common
Stock by any such holder shall thereafter be made or recognized. Until
surrendered in accordance with the provisions of Section 3.03 of this Agreement,
each certificate theretofore representing shares of Oasis Common Stock (other
than shares to be canceled pursuant to Section 2.04 of this Agreement) shall
from and after the Effective Time represent for all purposes only the right to
receive the consideration provided in Section 2.01 of this Agreement in exchange
therefor.
SECTION 3.05. NO FURTHER OWNERSHIP RIGHTS IN OASIS STOCK. All shares of
Rainwire Common Stock issued upon the surrender for exchange of shares of Oasis
Common Stock in accordance with the terms hereof shall be deemed to have been
issued in full satisfaction of all rights pertaining to such shares of Oasis
Common Stock, and there shall be no further registration of transfers on the
records of Oasis of shares of Oasis Common Stock which were outstanding
immediately prior to the Effective Time.
SECTION 3.06. NO LIABILITY. None of Rainwire, Oasis, the Exchange Agent
or any party hereto shall be liable to any Person in respect of any shares of
Rainwire Common Stock properly delivered to a public official pursuant to any
applicable abandoned property, escheat or similar law.
SECTION 3.07. LOST CERTIFICATES. If any certificate representing Oasis
Common Stock shall have been lost, stolen or destroyed, upon the making of an
affidavit of that fact by the Person claiming such certificate to be lost,
stolen or destroyed and, if required by Rainwire, the posting by such Person of
a bond in such reasonable amount as Rainwire may direct as indemnity against any
claim that may be made against either of them with respect to such certificate,
the transfer agent will issue in exchange for such lost, stolen or destroyed
certificate the Share Exchange Consideration and unpaid dividends and
distributions on shares of Rainwire Common Stock deliverable in respect thereof,
in each case pursuant to this Agreement.
SECTION 3.08. WITHHOLDING RIGHTS. Rainwire shall be entitled to deduct
and withhold from the consideration otherwise payable pursuant to this Agreement
to any holder of shares of Rainwire Common Stock such amounts as it is required
to deduct and withhold with respect to the making of such payment under the Code
and the rules and regulations promulgated thereunder, or any provision of state,
local or foreign tax law. To the extent that amounts are so withheld by Rainwire
such withheld amounts shall be treated for all purposes of this Agreement as
having been paid to the holder of the shares of Oasis Common Stock in respect of
which such deduction and withholding was made by Rainwire.
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SECTION 3.09. FURTHER ASSURANCES. At and after the Effective Time, the
officers and directors of Rainwire shall be authorized to execute and deliver,
in the name and on behalf of Oasis, any deeds, bills of sale, assignments or
assurances and to take and do, in the name and on behalf of Oasis, any other
actions and things to vest, perfect or confirm of record or otherwise in Oasis
any and all right, title and interest in, to and under any of the rights,
properties or assets acquired or to be acquired by Oasis as a result of, or in
connection with, the Share Exchange.
SECTION 3.10. NO FRACTIONAL SHARES. No certificates or scrip representing
fractional shares of Rainwire Common Stock shall be issued upon the surrender
for exchange of certificates, no dividend or distribution of Rainwire Common
Stock shall relate to such fractional share interests and such fractional share
interests will not entitle the owner thereof to vote or to any rights as a
Stockholder of Rainwire. The procedure with respect to fractional shares is set
forth in Section 2.05 hereof.
ARTICLE IV
FURTHER TERMS AND COVENANTS
SECTION 4.01. PREPARATION OF REGISTRATION STATEMENT. As promptly as
reasonably practicable following the date of this Agreement, Rainwire and Oasis
shall prepare and file with the SEC a mutually acceptable Information
Statement/Proxy Statement (the "Information/Proxy Statement") and Rainwire shall
prepare and file with the SEC a Registration Statement on Form S-4 in which the
Information/ Proxy Statement will be included as a prospectus (such Registration
statement, and any amendments or supplements thereto, the Form "S-4"). Rainwire
agrees to provide Oasis with a reasonable opportunity to review and comment on
the Form S-4 before filing with the SEC. Each of Rainwire and Oasis shall use
commercially reasonable efforts (a) to request, within twenty-four (24) hours of
receiving oral or written notification by the SEC that it has no further
comments on the Form S-4, that the effective date of the Form S-4 be accelerated
so that the Form S-4 become effective as promptly and as practicable thereafter,
(b) to otherwise have the Form S-4 declared effective by the SEC as promptly as
practicable, (c) to keep the Form S-4 effective as long as is necessary to
consummate the Share Exchange and the transactions contemplated thereby.
Rainwire and Oasis shall, as promptly as practicable after receipt thereof, (i)
provide the other party copies of any written comments and advise the other
party of any oral comments received from the SEC relating to matters being
considered by the SEC in connection with its review, if any, of the Form S-4 and
(ii) respond to such comments by filing with the SEC a proper response and, if
necessary or desirable, an amendment to the Form S-4. Rainwire and its counsel
shall be responsible for the preparation and filing of the Form S-4, provided,
however, that Oasis and its counsel shall promptly provide such information,
draft and provide to Rainwire such portions of the Form S-4 and provide such
other assistance with respect to the preparation and filing of the Form S-4 as
Rainwire may from time to time reasonably request. Notwithstanding any other
provision herein to the contrary, no portion of the Form S-4 or any amendment or
supplement thereto nor any response to comments relating thereto may be filed
with the SEC, and no document or portion thereof may be incorporated by
reference into the Form S-4, without the prior approval of both Rainwire and
Oasis, which approval shall not be unreasonably withheld or delayed. Oasis will
use commercially reasonable efforts to cause the Form S-4 to be mailed to Oasis'
stockholders as soon as practicable after the Form S-4 is declared effective by
the SEC. Rainwire shall take any action (other than qualifying to do business in
any jurisdiction in which it is not now so qualified or to file a general
consent to service of process) required to be taken under any applicable state
securities laws in connection with the issuance of the shares of Rainwire Common
Stock to be issued in the Share Exchange (the "Share Issuance") and Oasis shall
furnish all information concerning Oasis and the holders of Oasis Common Stock
as may be reasonably requested in connection with any such action. Each party
will advise the other party, promptly after it receives notice thereof, of the
time when the Form S-4 has been declared effective by the SEC, the issuance by
the SEC or any state securities regulatory authority of any stop order or
threatened stop order relating to the Form S-4, the suspension of the
qualification of the Rainwire Common Stock issuable in connection with the Share
Exchange for offering or sale in any jurisdiction, any request by the SEC or any
state securities regulatory authority to respond to an inquiry, to provide any
information on a supplemental basis, to amend or
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supplement any document incorporated by reference into the Form S-4 (regardless
of whether the document which is the subject of such request was filed by the
party who is to receive notice as provided above), or any request by the SEC to
amend or supplement the Form S-4; in each case, together with all of the facts
and circumstances known to the notifying party relating to the event or events
which has or have given rise to the obligation to provide such notification. If
at any time prior to the Effective Time either Rainwire or Oasis becomes aware
that any information including, without limitation, information relating to
Rainwire or Oasis, or any of their respective affiliates, officers or directors,
has either been misstated in, or omitted from, the Form S-4, the party who has
become aware of such misstatement or omission shall promptly advise the other
party and Rainwire and Oasis shall cooperate with one another in the preparation
and filing, as soon as reasonably practicable, of an amendment or supplement to
the Form S-4 so that following the filing of such amendment or supplement, the
Form S-4 (including any documents incorporated by reference therein) would not
include any misstatement of a material fact or omit to state any material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
SECTION 4.02. OASIS SHAREHOLDER APPROVAL.
(a) As soon as reasonably practicable after the date on which the
Form S-4 has been declared effective by the SEC, Oasis shall take all
actions required by the GBCC and Regulations 14A and 14C promulgated under
the Exchange Act to call, give notice of, solicit proxies with respect to,
convene and hold a meeting of its stockholders for the purpose of obtaining
the Required Oasis Vote (the "Oasis Stockholder Meeting").
(b) In connection with obtaining the Required Oasis Vote, the Board
of Oasis will not withdraw, modify or qualify the Oasis Recommendation in a
manner adverse to Rainwire (any such withdrawal, modification or
qualification, a "Change") or take any action in connection with or make
any statement at the Oasis Stockholder Meeting which is inconsistent with
the Oasis Recommendation or would reasonably be expected to diminish the
likelihood of obtaining the Required Oasis Vote.
(c) Oasis shall also take all action required under the GBCC with
respect to the holders of Dissenting Shares, if any; and
(d) Oasis shall cooperate with Rainwire in mailing to Oasis'
shareholders a transmittal letter to be used by such shareholders in
forwarding their certificates for surrender and exchange.
SECTION 4.03. RAINWIRE SHAREHOLDER APPROVAL. Rainwire shall take all
actions required by the DGCL and Regulations 14A and 14C promulgated under the
Exchange Act to obtain the consent of a majority of its shareholders in favor of
the Share Exchange and Amendments and to notify the remaining shareholders of
the actions taken by the majority.
SECTION 4.04. NEW OFFICERS AND DIRECTORS. Upon Closing, Xxxx Xxxxxxxxxxxx
will resign as President of Rainwire, and Xxxxxx X. Xxxxx will be appointed
President and Chief Executive Officer of Rainwire. Additionally, upon Closing,
Xxxxxx X. Xxxxx will be appointed to the Board of Directors of Rainwire, and the
number of directors constituting Rainwire's Board of Directors will be increased
to a total of five (5) directors.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF OASIS
Oasis represents and warrants the following to Rainwire:
SECTION 5.01. ORGANIZATION, AUTHORITY AND CAPACITY. Oasis is a
corporation, duly organized, validly existing, and in good standing under
the laws of the State of
Georgia, and has the full corporate power and
authority necessary to (a) execute, deliver and perform its obligations
under this Agreement and the other documents and instruments to be executed
and delivered by Oasis pursuant to this Agreement (collectively, the "Share
Exchange Documents") and (b) carry on its business as
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it has been and is now being conducted and to own and lease the properties
and assets which it now owns or leases. Oasis is duly qualified to do
business and is in good standing in the jurisdictions set forth in Schedule
5.01, which includes every state of the United States in which the conduct
of the business and the ownership of such properties and assets requires it
to be so qualified.
SECTION 5.02. AUTHORIZATION AND VALIDITY. The execution, delivery
and performance of the Share Exchange Documents to be executed and
delivered by Oasis have been duly authorized by all necessary corporate
action on the part of Oasis, and the Board of Directors has recommended
that the Stockholders of Oasis approve this Agreement and the transactions
contemplated hereby be submitted for consideration to its shareholders. The
Share Exchange Documents to be executed and delivered by Oasis have been or
will be, as the case may be, duly executed and delivered by Oasis and
constitute or will constitute the legal, valid and binding obligations of
Oasis, enforceable in accordance with their respective terms, except as may
be limited by bankruptcy, insolvency, or other laws affecting creditors'
rights generally, or as may be modified by a court of equity.
SECTION 5.03. ABSENCE OF CONFLICTING AGREEMENTS OR REQUIRED
CONSENTS. Except as set forth on Schedule 5.03, the execution, delivery
and performance by Oasis of the Share Exchange Documents to be executed and
delivered by Oasis: (a) do not require the consent of or notice to any
Authority or any other third party (except for those required under or in
relation to state securities or "blue sky" laws, the Securities Act, and
the GBCC with respect to the filing of the Certificate of Share Exchange);
(b) do not conflict with any provision of Oasis's articles or certificate
of incorporation or bylaws; (c) do not violate any law, ordinance,
regulation, ruling, judgment, order or injunction of any court or
governmental instrumentality to which Oasis is subject or by which Oasis or
any of its respective properties are bound; (d) do not conflict with,
constitute grounds for termination of, result in a breach of, or constitute
a default under the terms of any agreement, instrument, license or permit
to which Oasis is a party or by which Oasis or any of its properties are
bound; and (e) will not create any lien, encumbrance or restriction upon
any of the assets or properties of Oasis.
SECTION 5.04. GOVERNING DOCUMENTS OF OASIS. True and correct copies
of the organizational documents and all amendments thereto of Oasis in
effect on the date hereof have been or will be provided to Rainwire.
Rainwire has been or will be provided with access to the minutes of Oasis,
and such minutes accurately reflect all proceedings of the board of
directors of Oasis (and all committees thereof) required to be reflected in
such records through the date hereof.
SECTION 5.05. OUTSTANDING AND AUTHORIZED CAPITALIZATION. All
authorized and outstanding shares of Oasis Common Stock are accurately
described on Schedule 5.05. All outstanding shares of Oasis Common Stock
are listed and held of record as indicated on Schedule 5.05 and all shares
of outstanding Oasis Common Stock have been duly and validly issued, and
are fully paid and nonassessable. No shares of Oasis Common Stock were
issued in violation of preemptive rights of any past or present holder of
any Oasis Common Stock. Except as set forth on Schedule 5.05, there are no
outstanding warrants, options, rights, calls or other commitments of any
nature relating to Oasis Common Stock and there are no outstanding
securities of Oasis Convertible into or exchangeable for any Oasis Common
Stock. Except as set forth on Schedule 5.05, Oasis is not obligated to
issue or repurchase any Oasis Common Stock for any reason and no person or
entity has any right or privilege (whether preemptive or contractual) for
the purchase, subscription or issuance of any unissued Oasis Common Stock.
SECTION 5.06. FINANCIAL STATEMENTS. Attached hereto as Schedule
5.06(a), is the audited financial statements of Oasis for the year ended
December 31, 2000, and the unaudited financial statements for the period
ended September 30, 2001, which reflect the results of operation and
financial condition of Oasis for such periods and at such dates (the "Oasis
Financial Statements"). Except as disclosed in Schedule 5.06(b), to the
best of Oasis's or the Oasis Shareholders' knowledge, as of their
respective dates (or if amended or superseded by a subsequent report
created prior to the date of this Agreement, then as of the date of such
subsequent report), the Oasis Financial Statements did not contain any
untrue statement of a material fact or omit to state a material fact
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required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading.
Except as disclosed in Schedule 5.06(b), to the best of Oasis's or the
Oasis Shareholders' knowledge, the Oasis Financial Statements present
fairly the financial position of Oasis as of the dates indicated and
present fairly the results of operations of Oasis for the periods then
ended, and are in accordance with the books and records of Oasis, which are
complete and correct in all material respects.
SECTION 5.07. ABSENCE OF CHANGES. Since September 30, 2001, Oasis
has conducted its business only in the ordinary course and has not, except
as set forth in Schedule 5.07:
(a) suffered any material adverse change in its working capital,
condition (financial or otherwise), assets, liabilities, reserves,
business or operations;
(b) paid, discharged or satisfied any material liability other than
in the ordinary course of business;
(c) written off as uncollectible any account receivable other than
in the ordinary course of business or suffered an impairment of any
other asset (or is aware of any facts that would result in such
write-off or impairment);
(d) compromised any debts, claims or rights or disposed of any of
its properties or assets other than in the ordinary course of business;
(e) entered into any commitments or transactions not in the
ordinary course of business involving aggregate value in excess of
$25,000 or made aggregate capital expenditures or commitments in excess
of $25,000;
(f) made any material change in any method of accounting or
accounting practice;
(g) subjected any of its assets, tangible or intangible, to any
Lien, encumbrance or restriction of any nature whatsoever, except for
liens for current property taxes not yet due and payable;
(h) hired, committed to hire or terminated any employee other than
in the ordinary course of business;
(i) except for payments, dividends or distributions consistent with
past practices for prior periods, declared, set aside or made any
payment, dividend or other distribution to any holder of Oasis Common
Stock or purchased, redeemed or otherwise acquired, directly or
indirectly, any Oasis Common Stock;
(j) terminated or amended any material contract, license or other
instrument to which Oasis is a party or suffered any loss or termination
or threatened loss or termination of any existing business arrangement
or material supplier, the termination or loss of which, in the
aggregate, would have a Oasis Material Adverse Effect;
(k) effected any change in its capital structure;
(l) (i) incurred, assumed or refinanced any Indebtedness other than
in the ordinary course of business consistent with past practice, or
(ii) made any loans, advances or capital contributions to, or
investments in, any Person other than an Oasis Subsidiary or any
employee or officer as a cash advance, in each case in the ordinary
course of business and consistent with past practice;
(m) paid, discharged or satisfied any liability, obligation, or
Lien other than payment, discharge or satisfaction of (i) Indebtedness
as it matures and become due and payable or (ii) liabilities,
obligations or Liens in the ordinary course of business consistent with
past practice;
(n) changed any of the accounting or tax principles, practices or
methods used by Oasis, except as required by changes in applicable Tax
Laws or changed reserve amounts or policies;
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(o) (i) entered into any employment contract or other arrangement
or made any change in the compensation payable or to become payable to
any of the officers of Oasis or Persons acting in a similar capacity or
Affiliates in the ordinary course consistent with past practice, (ii)
terminated or entered into or amended any employment, severance,
consulting, termination or other agreement or employee benefit plan, and
except for cash advances made in the ordinary course of business
consistent with past practice, (iii) paid any bonuses payable or to
become payable to any of the officers of Oasis or Persons acting in a
similar capacity or (iv) made any change in its existing borrowing or
lending arrangements for or on behalf of any of such Persons pursuant to
an employee benefit plan or otherwise;
(p) (i) paid or made any accrual or arrangement for payment of any
pension, retirement allowance or other employee benefit pursuant to any
existing plan, agreement or arrangement to any Affiliate, officer,
employee or Person acting in a similar capacity, or paid or agreed to
pay or made any accrual or arrangement for payment to any Affiliate,
officers, employees or Persons acting in a similar capacity of any
amount relating to unused vacation days, except payments and accruals
made in the ordinary course consistent with past practice, (ii) granted,
issued, accelerated or accrued salary or other payments or benefits
pursuant to any pension, profit-sharing, bonus, extra compensation,
incentive, deferred compensation, stock purchase, stock option, stock
appreciation right, group insurance, severance pay, retirement or other
employee benefit plan, agreement or arrangement, or any employment or
consulting agreement with or for the benefit of any Affiliate, officer,
employee, agent or consultant or Person acting in a similar capacity,
whether past or present or (iii) or amended in any material respect any
such existing plan, agreement or arrangement to effect any of the
foregoing;
(q) made any payments (other than regular compensation and cash
advances payable to officers and employees or Persons acting in a
similar capacity of Oasis in the ordinary course consistent with past
practice), loans, advances or other distributions, or enter into any
transaction, agreement or arrangement with, the Oasis Shareholders, any
Oasis Affiliates, officers, employees, agents, consultants or Persons
acting in a similar capacity, stockholders of their Affiliates,
associates or family members;
(r) settled or compromised any Tax liability or agreed to any
adjustment of any Tax attribute or made any election with respect to
Taxes;
(s) (i) made any change in its working capital practices generally,
including accelerating any collections of cash or accounts receivable or
deferring payments or (ii) failed to make timely accruals, including
with respect to accounts payable and liabilities incurred in the
ordinary course of business;
(t) failed to renew (at levels consistent with presently existing
levels), terminated or amended or failed to perform any of its
obligations or permitted any material default to exist or caused any
material breach under, or entered into (except for renewals in the
ordinary course of business consistent with past practice), any policy
of insurance;
(u) except in the ordinary course of business consistent with past
practice pursuant to appropriate confidentiality agreements, and except
as required by any Law or any existing agreements set forth on Schedule
5.19 or as may be reasonably necessary to secure or protect intellectual
or other property rights of Oasis, provided any confidential information
to any Person other than Rainwire; or
(v) agreed, whether in writing or otherwise, to take any action
described in this Section 5.07.
SECTION 5.08. NO UNDISCLOSED LIABILITIES. To the best of Oasis's or
the Oasis Shareholders' knowledge, Oasis does not have any liabilities,
other than those liabilities which have been adequately reflected in or
provided for in the Oasis Financial Statements or as shown on Schedule 5.08
hereto.
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SECTION 5.09. LITIGATION, ETC. Except as listed on Schedule 5.09
hereto and except for matters that are covered by Oasis's insurance (taking
into account any applicable limits on coverage), (a) there are no claims,
lawsuits, actions, arbitrations, administrative or other proceedings
pending (a "Claim") against Oasis, or to the knowledge of Oasis, no such
matter is threatened, and there is no basis for any such action, (b) to the
knowledge of Oasis, there are no governmental or administrative
investigations or inquiries pending that involve Oasis, (c) there are no
judgments against or consent decrees binding on Oasis or its assets or
which may have an adverse effect on, the business or goodwill of Oasis; and
(d) all Claims have been reported to the appropriate insurance carrier and,
to the knowledge of Oasis, Oasis has not received a notice of denial of
coverage or a reservation of rights. A list of all outstanding Claims
against Oasis is set forth on Schedule 5.15.
SECTION 5.10. NO VIOLATION OF LAW. Oasis has not been or is not
currently in violation of any applicable local, state or federal law,
ordinance, regulation, order, injunction or decree, or any other
requirement of any governmental body, agency or authority or court binding
on it, or relating to its property or business or its advertising, sales or
pricing practices, except for any such violations as would not individually
or in the aggregate have a Oasis Material Adverse Effect.
SECTION 5.11. REAL AND PERSONAL PROPERTY.
(a) Schedule 5.11(a) sets forth a list of all items of material
personal and mixed, tangible and intangible property, rights and assets
owned or leased by Oasis. Except as set forth on Schedule 5.11(a), Oasis
(i) has good and valid title to all of the personal and mixed, tangible and
intangible property, rights and assets which it purports to own, including
all the personal property and assets reflected in the Oasis Financial
Statements; and (ii) owns such rights, assets and personal property free
and clear of all Liens, encumbrances or restrictions of any nature
whatsoever (except for current year ad valorem taxes).
(b) Schedule 5.11(b) contains a true and correct description of all
real property owned or leased by Oasis, including all improvements located
thereon. Except as set forth on Schedule 5.11(b), Oasis has good and
marketable title to all real property owned by it, free and clear of any
Liens, encumbrances or restrictions of any nature whatsoever. Rainwire has
been furnished with true, correct and complete copies of all leases, deeds,
easements and other documents and instruments concerning the matters listed
on Schedule 5.11(b). No condemnation or similar actions are currently in
effect or pending against any part of any real property owned or leased by
Oasis or, to the knowledge of Oasis, no such action is threatened against
any such real property. There are no encroachments, leases, easements,
covenants, restrictions, reservations or other burdens of any nature which
might impair in any material respect the use of any owned or leased real
property in a manner consistent with past practices nor does any part of
any building structure or any other improvement thereon encroach on any
other property.
(c) The assets owned or leased by Oasis (including all buildings and
improvements in connection therewith) are in good operating condition and
repair, ordinary wear and tear excepted, and such assets (together with any
assets leased by Oasis) include all rights, properties, interests in
properties, and assets necessary to permit Oasis to carry on its business
as presently conducted following the Share Exchange.
SECTION 5.12. CONTRACTS AND COMMITMENTS.
(a) Schedule 5.12 contains a complete and accurate list of all
contracts, agreements, commitments, instruments and obligations (whether
written or oral, contingent or otherwise) of Oasis of or concerning the
following matters which involve (i) payments by or to Oasis in excess of
$5,000, (ii) performance by or for Oasis of services or obligations the
value of which is in excess of $5,000, or
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(iii) performance by or for Oasis of services or obligations for greater
than 90 days (the "Oasis Agreements"):
(i) the lease (as lessee or lessor) or license (as licensee or
licensor) of any real or personal property (tangible or intangible);
(ii) the employment or engagement of any officer, director,
employee, consultant or agent;
(iii) any relationship with any Oasis Shareholder, or any person or
entity affiliated with or related to any Oasis Shareholder or any
officer, director, employee, consultant or agent of Oasis;
(iv) any arrangement limiting the freedom of Oasis to compete in
any manner in any line of business;
(v) any arrangement that could reasonably be anticipated to have a
Oasis Material Adverse Effect;
(vi) any arrangement not in the ordinary course of business;
(vii) any power of attorney, whether limited or general, granted by
or to Oasis;
(viii) any agreements relating to the making of any loan or advance
by Oasis;
(ix) any agreements providing for the indemnification by Oasis of
any Person;
(x) any agreements with any Authority except those entered into in
the ordinary course of business which are not material to Oasis;
(xi) any broker, distributor, dealer or representative or agency
agreements pursuant to which Oasis made payments in excess of $25,000
during the preceding fiscal year;
(xii) any agreements (including settlement agreements) currently in
effect pursuant to which Oasis licenses the right to use any
Intellectual Property to any Person or from any Person (other than
license agreements related to off-the-shelf software products);
(xiii) any confidentiality agreements entered into by Oasis during
the period commencing three years prior to the date hereof pursuant to
which confidential information has been provided to a third party or by
which Oasis was restricted from providing information to third parties,
other than confidentiality agreements entered into in the normal course
of business;
(xiv) any voting trust or similar agreements relating to any of the
ownership interests in Oasis to which any of the Oasis Shareholders or
Oasis is a party;
(xv) any joint venture, partnership or similar documents or
agreements; and
(xvi) any agreement that materially limits or purports to
materially limit the ability of Oasis to own, operate, sell, transfer,
pledge or otherwise dispose of any assets.
(b) Oasis has delivered or will deliver to Rainwire true and complete
copies of all Oasis Agreements. Except as indicated on Schedule 5.12, the
Oasis Agreements are valid and enforceable in accordance with their terms
(except to the extent limited by equitable principles or bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights
generally) and there is not under any of such contracts (i) any existing or
claimed default by Oasis or event which with the notice or lapse of time,
or both, would constitute a default by Oasis or (ii) to the knowledge of
Oasis, any existing or claimed default by any other party or event which
with notice or lapse of time, or both, would constitute a default by any
such party. Except as indicated on Schedule 5.12, the continuation validity
and enforceability of the Oasis Agreements will not be affected by the
Share Exchange and the Share Exchange will not result in a breach of, or
default under, or require the consent of any other party to any of the
Oasis Agreements. Except as set forth on Schedule 5.12, there is no actual
or, to the knowledge of Oasis, threatened termination, cancellation or
limitation of any Oasis Agreements that would have a Oasis Material Adverse
Effect. To the knowledge of Oasis, there is no
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pending or threatened bankruptcy, insolvency or similar proceeding with
respect to any other party to the Oasis Agreements.
SECTION 5.13. EMPLOYMENT AND LABOR MATTERS.
(a) Schedule 5.13(a) sets forth (i) the number of full-time and
part-time employees of Oasis and (ii) the name and compensation paid to
each employee of or consultant to Oasis who currently receives or has
received salary, benefits and bonuses for the two most recently ended
fiscal years in excess of $50,000.
(b) Oasis is in compliance in all material respects with all
applicable laws respecting employment and employment practices, terms and
conditions of employment, wages and hours, occupational safety and health,
including the National Labor Relations Act, the Immigration Reform and
Control Act of 1986, Title VII of the Civil Rights Act of 1964, the Civil
Rights Act of 1991, 42 U.S.C. Section 1981, the Americans With Disabilities
Act, the Fair Labor Standards Act, ERISA, the Occupational Safety and
Health Act, the Family Medical Leave Act, and any other law, ordinance or
regulation respecting the terms and conditions of employment, including
authorization to work in the United States, equal employment opportunity
(including prohibitions against discrimination, harassment, and
retaliation), payment of wages, hours of work, occupational safety and
health, and labor practices.
(c) Except as disclosed on Schedule 5.13(c),
(i) there are no charges, governmental audits, investigations,
administrative proceedings or complaints concerning Oasis's employment
practices pending or, to the knowledge of Oasis, threatened before any
federal, state or local agency or court, and, to the knowledge of Oasis,
no basis for any such matter exists;
(ii) Oasis is not a party to any union or collective bargaining
agreement, and, to the knowledge of Oasis, no union attempts to organize
the employees of Oasis have been made, nor are any such attempts now
threatened; and
(iii) there are no pending or, to the knowledge of Oasis,
threatened material claims by any current or former employee of Oasis or
any employment-related claims or investigations by any Authority,
including any charges to the Equal Employment Opportunity Commission or
state employment practice agency, investigations regarding compliance
with federal, state or local wage and hour laws, audits by the Office of
Federal Contractor Compliance Programs, complaints of sexual harassment
or any other form of unlawful harassment, discrimination, or
retaliation.
SECTION 5.14. EMPLOYEE BENEFIT MATTERS. Schedule 5.14 attached
hereto sets forth a description of all "Employee Welfare Benefit Plans" and
"Employee Pension Benefit Plans" (as defined in Sections 3(1) and 3(2),
respectively, of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA")) existing on the date hereof that are or have been
maintained or contributed to by Oasis. Except as listed on Schedule 5.14,
Oasis does not maintain any retirement or deferred compensation plan,
savings, incentive, stock option or stock purchase plan, unemployment
compensation plan, vacation pay, severance pay, bonus or benefit
arrangement, insurance or hospitalization program or any other fringe
benefit arrangement for any employee, consultant or agent of Oasis, whether
pursuant to contract, arrangement, custom or informal understanding, which
do not constitute an "Employee Benefit Plan" (as defined in Section 3(3) of
ERISA), for which Oasis may have any ongoing material liability after
Closing. Oasis does not maintain nor has it ever contributed to any
Multi-Employer Plan as defined by Section 3(37) of ERISA. Oasis does not
currently maintain any Employee Pension Benefit Plan subject to Title IV of
ERISA. There have been no "prohibited transactions" (as described in
Section 406 of ERISA or Section 4975 of the Code) with respect to any
Employee Pension Benefit Plan or Employee Welfare Benefit Plan maintained
by Oasis as to which Oasis has been a party. As to any employee pension
benefit plan listed on Schedule 5.14 and subject to Title IV of ERISA,
there have been no reportable events (as such term is defined in Section
4043 of ERISA).
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SECTION 5.15. INSURANCE POLICIES. Attached hereto as Schedule 5.15
is a list of all insurance policies of Oasis setting forth with respect to
each policy the name of the insurer, a description of the policy, the
dollar amount of coverage, the amount of the premium, the date through
which all premiums have been paid, and the expiration date. Each insurance
policy relating to the insurance referred to in Schedule 5.15 is in full
force and effect, is valid and enforceable, and Oasis is not in breach of
or in default under any such policy. All policies listed on Schedule 5.15
will be outstanding and duly in force at the Closing Date, the premiums
payable in respect of such policies have been paid or will be paid in full
prior to the closing date, and none of such policies provide for any
retrospective premium adjustment or other experience based liability on the
part of Oasis. Oasis has not received any notice of or any reason to
believe that there is or has been any actual, threatened, or contemplated
termination or cancellation of any insurance policy relating to the said
insurance. Oasis has not since inception (a) been denied or had revoked,
canceled or rescinded any policy of insurance, or (b) self insured against
any risk ordinarily insured against by similar businesses. Schedule 5.15
contains a true, correct and complete list and summary of all claims which
have been made under each insurance policy relating to the said insurance.
Oasis has not failed to give any notice or to present any claim under any
insurance policy in a due and timely fashion, and to the best of its
knowledge, all insurable risks are adequately covered by insurance except
for any exposure occasioned by lack of Directors' and Officers' insurance
coverage.
SECTION 5.16. TAXES. Except as set forth on Schedule 5.16, Oasis has
filed or obtained filing extensions for all tax returns, federal, state,
county, and local, including payroll taxes, required to be filed by it, and
Oasis has paid or established adequate reserves (in accordance with
generally accepted accounting principles) for the payment of all taxes
shown to be due by such returns as well as all other taxes, assessments,
and governmental charges which have become due or payable, including,
without limitation, all taxes which Oasis is obligated to withhold from
amounts owing to employees, creditors, and third parties. The federal
income tax returns of Oasis have never been audited by the Internal Revenue
Service and no state income or sales tax returns of Oasis have been
audited. No deficiency assessment with respect to or proposed adjustment of
Oasis's federal, state, county, or local taxes, including payroll taxes, is
pending or, to the best of Oasis's knowledge, threatened. There is no tax
lien, whether imposed by any federal, state, county, or local taxing
authority, outstanding against the assets, properties, or business of Oasis
(other than liens for taxes not yet due and payable). Neither Oasis nor any
of its shareholders have ever filed a consent pertaining to Oasis pursuant
to Section 341(f) of the IRC (as hereinafter defined), relating to
collapsible corporations.
SECTION 5.17. INTERESTED TRANSACTIONS. Except as provided on
Schedule 5.17, Oasis is not a party to any contract, loan or other
transaction with any Oasis Shareholder nor does Oasis have any direct or
indirect interest in or affiliation with any Oasis Shareholder to any such
contract, loan or other transaction. No Oasis Shareholder is an employee,
consultant, partner, principal, director or owner of, or has any other
direct or indirect interest in or affiliation with, any person or business
entity that is engaged in a business that competes with or is similar to
the business of Oasis.
SECTION 5.18. INTELLECTUAL PROPERTY.
(a) Attached hereto as Schedule 5.18 is a true, correct and complete
list of all of Oasis's patents, trademarks, trade names, or trademark or
trade name registrations, domain name registrations, service marks, and
copyrights or copyright registrations (the "Proprietary Rights"). All of
Oasis's Proprietary Rights are valid, enforceable, in full force and effect
and free and clear of any and all security interests, liens, pledges and
encumbrances of any nature or kind. Oasis has not infringed upon and are
not infringing upon any patent, trademark, trade name, or trademark or
trade name registration, service xxxx, copyright, or copyright registration
of any other Person.
(b) No trade secret or confidential know-how material to the business
of Oasis as currently operated has been disclosed or authorized to be
disclosed to any third party, other than pursuant to a non-disclosure
agreement that protects Oasis's proprietary interests in and to such trade
secrets and confidential know-how, and other than disclosures to employees,
officers, directors, agents, attorneys,
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accountants, consultants, independent contractors or other representatives
of Oasis, each of whom is obligated (by contract, employment policy,
cannons of ethics or the like) to maintain the confidentiality of such
information.
(c) The consummation of the transactions contemplated hereby will not
result in the loss or impairment of the right of Rainwire or any of its
successors to own, use, license or sublicense any of the Intellectual
Property currently owned, used, licensed or sublicensed by Oasis nor will
it require the consent of any Authority or third party in respect of any
such Intellectual Property and no present or former employee, or officer of
Oasis has any right, title or interest, directly or indirectly, in whole or
in part, in any Intellectual Property.
SECTION 5.19. REQUIRED VOTE OF OASIS SHAREHOLDERS. The affirmative
vote of the holders of a majority of the outstanding shares of Oasis Common
Stock to adopt this Agreement and approve the Share Exchange is the only
vote of the holders of any class or series of Oasis Capital Stock necessary
to adopt this Agreement and approve the Share Exchange and the other
transactions contemplated hereby.
SECTION 5.20. BROKERAGE. Except as disclosed on Schedule 5.20,
neither Oasis, nor any Oasis Shareholder has employed any broker, finder,
advisor, consultant or other intermediary in connection with this Agreement
or the transactions contemplated by this Agreement who is or might be
entitled to any fee, commission or other compensation from Oasis, or from
Rainwire or its Affiliates, upon or as a result of the execution of this
Agreement or the consummation of the transactions contemplated hereby. Such
fee shall be borne by the Oasis Shareholders and not by Oasis or Rainwire.
SECTION 5.21. STATEMENTS TRUE AND CORRECT.
(a) No representation or warranty made herein by Oasis or any of the
Oasis Shareholders, nor in any statement, certificate or instrument to be
furnished to Rainwire by Oasis or any of the Oasis Shareholders pursuant to
any Share Exchange Document, contains or will contain any untrue statement
of material fact or omits or will omit to state a material fact necessary,
in light of the circumstances under which it was made, to make these
statements contained herein and therein not misleading.
(b) None of the information supplied or to be supplied by Oasis for
inclusion or incorporation by reference into the Form S-4 will, at the time
the Form S-4 is filed with the SEC, at any time the Form S-4 is amended or
supplemented, at the time the Form S-4 becomes effective under the
Securities Act and the Exchange Act or on the date it is first mailed to
holders of Oasis Common Stock, contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they will be made, not misleading.
(c) Notwithstanding the foregoing provisions of Section 5.21(b), no
representation or warranty is made by Oasis with respect to information
supplied or to be supplied by Rainwire for inclusion or incorporation by
reference into the Form S-4 nor with respect to any statements made or
incorporated by reference in the Form S-4 based in whole or in part upon
such information.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF RAINWIRE
Rainwire hereby represents and warrants to Oasis as follows:
SECTION 6.01. ORGANIZATION, AUTHORITY AND CAPACITY. Rainwire is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware. Rainwire has the full power and authority
necessary to (a) execute, deliver and perform its obligations under the
Share Exchange Documents to be executed and delivered by it, and (b) carry
on its business as it has been and is now being conducted and to own and
lease the properties and assets which it now owns or
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leases. Rainwire is duly qualified to do business and is in good standing
in the jurisdictions set forth on Schedule 6.01, which includes every state
of the United States in which the conduct of the business and the ownership
of such properties and assets requires it to be so qualified.
SECTION 6.02. AUTHORIZATION AND VALIDITY. The execution, delivery
and performance of the Share Exchange Documents to be executed and
delivered by Rainwire have been duly authorized by all necessary corporate
action by Rainwire, and the Board of Directors has recommended that the
Shareholders of Rainwire approve the Share Exchange and the transactions
contemplated thereby be submitted for consideration to its shareholders.
The Share Exchange Documents to be executed and delivered by Rainwire have
been or will be, as the case may be, duly executed and delivered by
Rainwire and constitute or will constitute the legal, valid and binding
obligations of Rainwire, enforceable in accordance with their respective
terms, except as may be limited by bankruptcy, insolvency, or other laws
affecting creditors' rights generally, or as may be modified by a court of
equity.
SECTION 6.03. ABSENCE OF CONFLICTING AGREEMENTS OR REQUIRED
CONSENTS. Except as set forth on Schedule 6.03, the execution, delivery
and performance by Rainwire of the Share Exchange Documents to be executed
and delivered by it: (a) do not require the consent of or notice to any
Authority or any other third party (except for those required under or in
relation to State Securities or "blue sky" laws, the Securities Act, and
the GCDL with respect to the filing of the Certificate of Share Exchange);
(b) will not conflict with any provision of Rainwire's articles or
certificate of incorporation or bylaws; (c) do not conflict with or result
in a violation of any law, ordinance, regulation, ruling, judgment, order
or injunction of any court or governmental instrumentality to which
Rainwire is a party or by which Rainwire or any of its respective
properties are bound; (d) do not conflict with, constitute grounds for
termination of, result in a breach of, constitute a default under, require
any notice under, or accelerate or permit the acceleration of any
performance required by the terms of any Rainwire Material Agreement; and
(e) will not create any lien, encumbrance or restriction upon any of the
assets or properties of Rainwire.
SECTION 6.04. GOVERNING DOCUMENTS. True and correct copies of the
organizational documents and all amendments thereto of Rainwire and copies
of the bylaws of Rainwire have been provided to Oasis. Oasis has previously
been provided with access to Rainwire's minutes, and such minutes
accurately reflect all proceedings of the shareholders and board of
directors of Rainwire (and all committees thereof).
SECTION 6.05. OUTSTANDING AND AUTHORIZED CAPITALIZATION. The
authorized capital stock of Rainwire consists of 20,000,000 shares of
Rainwire Common Stock and 2,500,000 shares of Rainwire Preferred Stock. As
of the date of this Agreement, Rainwire has 9,909,886 shares of Rainwire
Common Stock issued and outstanding, 24,960 shares of Series C Preferred
Stock issued and outstanding, and 500,000 Shares of Series D Convertible
Preferred Stock issued and outstanding. All issued and outstanding shares
of Rainwire Common and Preferred Stock have been duly and validly issued,
and are fully paid and non-assessable. Except as set forth in Schedule
6.05, there are no outstanding warrants, options, rights, calls or other
commitments of any nature relating to shares of capital stock of Rainwire,
no outstanding securities convertible into or exchangeable for shares of
capital stock of Rainwire, and, Rainwire is not obligated to issue or
repurchase any of its shares of capital stock for any reason and no person
or entity has any right or privilege (whether preemptive or contractual)
for the purchase, subscription or issuance of any unissued shares of
capital stock of Rainwire. Except as set forth in Schedule 6.05 or the
Certificate of Incorporation, as amended, Rainwire has no obligation or
right (contingent or other) to purchase, redeem, or otherwise acquire any
of its equity securities or any interests therein or to pay any dividend or
make any other distribution in respect thereof. Except as set forth in
Schedule 6.05, there are no voting trusts or agreements nor any preemptive
rights relating to any outstanding securities of Rainwire (whether or not
Rainwire is a party thereto). No shares of Rainwire Common Stock are held
in Rainwire's treasury. All outstanding securities of Rainwire were issued
in compliance with all applicable federal
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and state securities laws. All Rainwire Common Stock to be issued in
connection with the Share Exchange will be duly and validly issued, fully
paid and nonassessable.
SECTION 6.06. REPORTS AND FINANCIAL STATEMENTS. Rainwire shall
complete, file and make available to Oasis (including through the SEC's
XXXXX system) true and complete copies of: (a) Rainwire's Annual Report on
Form 10-KSB filed with the SEC for the fiscal year ending December 31,
2000; (b) Rainwire's Quarterly Report on Form 10-QSB filed with the SEC for
the quarter ended March 31, 2001; (c) Rainwire's Quarterly Report on Form
10-QSB filed with the SEC for the quarter ended June 30, 2001; and (d)
Rainwire's Quarterly Report on Form 10-QSB filed with the SEC for the
quarter ended September 30, 2001 (individually a "SEC Report" and
collectively, the "SEC Reports"). To the best of Rainwire's knowledge, the
audited consolidated financial statements and unaudited consolidated
interim financial statements included in Rainwire SEC Reports (including
any related notes and schedules) complied as to form, as of their
respective dates of filing with the SEC, in all material respects with all
applicable accounting requirements and the published rules and regulations
of the SEC with respect thereto, were prepared in accordance with GAAP
consistently applied during the periods involved (except as otherwise
disclosed in the notes thereto, and except that unaudited statements do not
contain footnotes in substance or form required by GAAP, as is permitted by
Form 10-QSB of the Exchange Act) and fairly presented the financial
position of Rainwire and its consolidated Subsidiaries as of the dates
thereof and the results of operations and cash flows for the periods or as
of the dates then ended (subject, where appropriate, to normal year-end
adjustments).
SECTION 6.07. ABSENCE OF CHANGES. Since September 30, 2001, Rainwire
has conducted its business only in the ordinary course and has not, except
as set forth in the SEC Reports or Schedule 6.07:
(a) suffered any material adverse change in its working capital,
condition (financial or otherwise), assets, liabilities, reserves,
business or operations;
(b) paid, discharged or satisfied any material liability other than
in the ordinary course of business;
(c) written off as uncollectible any account receivable other than
in the ordinary course of business or suffered an impairment of any
other asset (or is aware of any facts that would result in such
write-off or impairment);
(d) compromised any debts, claims or rights or disposed of any of
its properties or assets other than in the ordinary course of business;
(e) entered into any commitments or transactions not in the
ordinary course of business involving aggregate value in excess of
$25,000 or made aggregate capital expenditures or commitments in excess
of $25,000;
(f) made any material change in any method of accounting or
accounting practice;
(g) subjected any of its assets, tangible or intangible, to any
Lien, encumbrance or restriction of any nature whatsoever, except for
liens for current property taxes not yet due and payable;
(h) hired, committed to hire or terminated any employee other than
in the ordinary course of business;
(i) except for payments, dividends or distributions consistent with
past practices for prior periods, declared, set aside or made any
payment, dividend or other distribution to any holder of Rainwire Common
Stock or purchased, redeemed or otherwise acquired, directly or
indirectly, any Rainwire Common Stock;
(j) terminated or amended any material contract, license or other
instrument to which Rainwire is a party or suffered any loss or
termination or threatened loss or termination of any
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existing business arrangement or material supplier, the termination or
loss of which, in the aggregate, would have a Rainwire Material Adverse
Effect;
(k) effected any change in its capital structure;
(l) (i) incurred, assumed or refinanced any Indebtedness other than
in the ordinary course of business consistent with past practice, or
(ii) made any loans, advances or capital contributions to, or
investments in, any Person other than an Rainwire Subsidiary or any
employee or officer as a cash advance, in each case in the ordinary
course of business and consistent with past practice;
(m) paid, discharged or satisfied any liability, obligation, or
Lien other than payment, discharge or satisfaction of (i) Indebtedness
as it matures and become due and payable or (ii) liabilities,
obligations or Liens in the ordinary course of business consistent with
past practice;
(n) changed any of the accounting or tax principles, practices or
methods used by Rainwire, except as required by changes in applicable
Tax Laws or changed reserve amounts or policies;
(o) (i) entered into any employment contract or other arrangement
or made any change in the compensation payable or to become payable to
any of the officers of Rainwire or Persons acting in a similar capacity
or Affiliates in the ordinary course consistent with past practice, (ii)
terminated or entered into or amended any employment, severance,
consulting, termination or other agreement or employee benefit plan, and
except for cash advances made in the ordinary course of business
consistent with past practice, (iii) paid any bonuses payable or to
become payable to any of the officers of Rainwire or Persons acting in a
similar capacity or (iv) made any change in its existing borrowing or
lending arrangements for or on behalf of any of such Persons pursuant to
an employee benefit plan or otherwise;
(p) (i) paid or made any accrual or arrangement for payment of any
pension, retirement allowance or other employee benefit pursuant to any
existing plan, agreement or arrangement to any Affiliate, officer,
employee or Person acting in a similar capacity, or paid or agreed to
pay or made any accrual or arrangement for payment to any Affiliate,
officers, employees or Persons acting in a similar capacity of any
amount relating to unused vacation days, except payments and accruals
made in the ordinary course consistent with past practice, (ii) granted,
issued, accelerated or accrued salary or other payments or benefits
pursuant to any pension, profit-sharing, bonus, extra compensation,
incentive, deferred compensation, stock purchase, stock option, stock
appreciation right, group insurance, severance pay, retirement or other
employee benefit plan, agreement or arrangement, or any employment or
consulting agreement with or for the benefit of any Affiliate, officer,
employee, agent or consultant or Person acting in a similar capacity,
whether past or present or (iii) or amended in any material respect any
such existing plan, agreement or arrangement to effect any of the
foregoing;
(q) made any payments (other than regular compensation and cash
advances payable to officers and employees or Persons acting in a
similar capacity of Rainwire in the ordinary course consistent with past
practice), loans, advances or other distributions, or enter into any
transaction, agreement or arrangement with, the Rainwire Shareholders,
any Rainwire Affiliates, officers, employees, agents, consultants or
Persons acting in a similar capacity, stockholders of their Affiliates,
associates or family members;
(r) settled or compromised any Tax liability or agreed to any
adjustment of any Tax attribute or made any election with respect to
Taxes;
(s) (i) made any change in its working capital practices generally,
including accelerating any collections of cash or accounts receivable or
deferring payments or (ii) failed to make timely accruals, including
with respect to accounts payable and liabilities incurred in the
ordinary course of business;
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(t) failed to renew (at levels consistent with presently existing
levels), terminated or amended or failed to perform any of its
obligations or permitted any material default to exist or caused any
material breach under, or entered into (except for renewals in the
ordinary course of business consistent with past practice), any policy
of insurance;
(u) except in the ordinary course of business consistent with past
practice pursuant to appropriate confidentiality agreements, and except
as required by any Law or as may be reasonably necessary to secure or
protect intellectual or other property rights of Rainwire, provided any
confidential information to any Person other than Rainwire; or
(v) agreed, whether in writing or otherwise, to take any action
described in this Section 6.07.
SECTION 6.08. NO UNDISCLOSED LIABILITIES. To the best of Rainwire's
knowledge, neither Rainwire nor any of its Subsidiaries have any
Liabilities or obligations of any nature, whether or not accrued,
contingent or otherwise, except (a) Liabilities or obligations reflected in
any of the SEC Reports, (b) Liabilities incurred in the ordinary course of
business since the date of the most recent SEC Reports, or (c) Liabilities
or obligations that would not, individually or in the aggregate, have an
Rainwire Material Adverse Effect.
SECTION 6.09. LITIGATION, ETC. Except as listed on Schedule 6.09
hereto and except for matters that are covered by Rainwire's insurance
(taking into account any applicable limits on coverage), (a) there are no
claims, lawsuits, actions, arbitrations, administrative or other
proceedings pending (a "Claim") against Rainwire, or to the knowledge of
Rainwire, no such matter is threatened, and there is no basis for any such
action, (b) to the knowledge of Rainwire, there are no governmental or
administrative investigations or inquiries pending that involve Rainwire,
(c) there are no judgments against or consent decrees binding on Rainwire
or its assets or which may have an adverse effect on, the business or
goodwill of Rainwire; and (d) all Claims have been reported to the
appropriate insurance carrier and, to the knowledge of Rainwire, Rainwire
has not received a notice of denial of coverage or a reservation of rights.
A list of all outstanding Claims against Rainwire is set forth on Schedule
6.15.
SECTION 6.10. NO VIOLATION OF LAW. The business of Rainwire and its
Subsidiaries have not been and are not currently in violation of no local,
state or federal law, ordinance, regulation, order, injunction or decree,
or any other requirement of any governmental body except (a) as described
in any of the SEC Reports and (b) for violations that would not,
individually or in the aggregate, have an Rainwire Material Adverse Effect.
SECTION 6.11. REAL AND PERSONAL PROPERTY.
(a) Schedule 6.11(a) sets forth a list of all items of material
personal and mixed, tangible and intangible property, rights and assets
owned or leased by Rainwire. Except as set forth on Schedule 6.11(a),
Rainwire (i) has good and valid title to all of the personal and mixed,
tangible and intangible property, rights and assets which it purports to
own, including all the personal property and assets reflected in the
Rainwire Financial Statements; and (ii) owns such rights, assets and
personal property free and clear of all Liens, encumbrances or restrictions
of any nature whatsoever (except for current year ad valorem taxes).
(b) Schedule 6.11(b) contains a true and correct description of all
real property owned or leased by Rainwire, including all improvements
located thereon. Except as set forth on Schedule 6.11(b), Rainwire has good
and marketable title to all real property owned by it, free and clear of
any Liens, encumbrances or restrictions of any nature whatsoever. Oasis has
been furnished with true, correct and complete copies of all leases, deeds,
easements and other documents and instruments concerning the matters listed
on Schedule 6.11(b). No condemnation or similar actions are currently in
effect or pending against any part of any real property owned or leased by
Rainwire or, to the knowledge of Rainwire, no such action is threatened
against any such real property. There are no encroachments, leases,
easements, covenants, restrictions, reservations or other burdens of any
nature which might
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impair in any material respect the use of any owned or leased real property
in a manner consistent with past practices nor does any part of any
building structure or any other improvement thereon encroach on any other
property.
(c) The assets owned or leased by Rainwire (including all buildings
and improvements in connection therewith) are in good operating condition
and repair, ordinary wear and tear excepted, and such assets (together with
any assets leased by Rainwire) include all rights, properties, interests in
properties, and assets necessary to permit Rainwire to carry on its
business as presently conducted following the Share Exchange.
SECTION 6.12. CONTRACTS AND COMMITMENTS.
(a) Schedule 6.12 contains a complete and accurate list of all
contracts, agreements, commitments, instruments and obligations (whether
written or oral, contingent or otherwise) of Rainwire of or concerning the
following matters which involve (i) payments by or to Rainwire in excess of
$5,000, (ii) performance by or for Rainwire of services or obligations the
value of which is in excess of $5,000, or (iii) performance by or for
Rainwire of services or obligations for greater than 90 days (the "Rainwire
Agreements"):
(i) the lease (as lessee or lessor) or license (as licensee or
licensor) of any real or personal property (tangible or intangible);
(ii) the employment or engagement of any officer, director,
employee, consultant or agent;
(iii) any relationship with any Rainwire Shareholder, or any person
or entity affiliated with or related to any Rainwire Shareholder or any
officer, director, employee, consultant or agent of Rainwire;
(iv) any arrangement limiting the freedom of Rainwire to compete in
any manner in any line of business;
(v) any arrangement that could reasonably be anticipated to have a
Rainwire Material Adverse Effect;
(vi) any arrangement not in the ordinary course of business;
(vii) any power of attorney, whether limited or general, granted by
or to Rainwire;
(viii) any agreements relating to the making of any loan or advance
by Rainwire;
(ix) any agreements providing for the indemnification by Rainwire
of any Person;
(x) any agreements with any Authority except those entered into in
the ordinary course of business which are not material to Rainwire;
(xi) any broker, distributor, dealer or representative or agency
agreements pursuant to which Rainwire made payments in excess of $25,000
during the preceding fiscal year;
(xii) any agreements (including settlement agreements) currently in
effect pursuant to which Rainwire licenses the right to use any
Intellectual Property to any Person or from any Person (other than
license agreements related to off-the-shelf software products);
(xiii) any confidentiality agreements entered into by Rainwire
during the period commencing three years prior to the date hereof
pursuant to which confidential information has been provided to a third
party or by which Rainwire was restricted from providing information to
third parties, other than confidentiality agreements entered into in the
normal course of business;
(xiv) any voting trust or similar agreements relating to any of the
ownership interests in Rainwire to which any of the Rainwire
Shareholders or Rainwire is a party;
(xv) any joint venture, partnership or similar documents or
agreements; and
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(xvi) any agreement that materially limits or purports to
materially limit the ability of Rainwire to own, operate, sell,
transfer, pledge or otherwise dispose of any assets.
(b) Rainwire has delivered or will deliver to Oasis true and complete
copies of all Rainwire Agreements. Except as indicated on Schedule 6.12,
the Rainwire Agreements are valid and enforceable in accordance with their
terms (except to the extent limited by equitable principles or bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights
generally) and there is not under any of such contracts (i) any existing or
claimed default by Rainwire or event which with the notice or lapse of
time, or both, would constitute a default by Rainwire or (ii) to the
knowledge of Rainwire, any existing or claimed default by any other party
or event which with notice or lapse of time, or both, would constitute a
default by any such party. Except as indicated on Schedule 6.12, the
continuation validity and enforceability of the Rainwire Agreements will
not be affected by the Share Exchange and the Share Exchange will not
result in a breach of, or default under, or require the consent of any
other party to any of the Rainwire Agreements. Except as set forth on
Schedule 6.12, there is no actual or, to the knowledge of Rainwire,
threatened termination, cancellation or limitation of any Rainwire
Agreements that would have a Rainwire Material Adverse Effect. To the
knowledge of Rainwire, there is no pending or threatened bankruptcy,
insolvency or similar proceeding with respect to any other party to the
Rainwire Agreements.
SECTION 6.13. EMPLOYMENT AND LABOR MATTERS.
(a) Schedule 6.13(a) sets forth (i) the number of full-time and
part-time employees of Rainwire and (ii) the name and compensation paid to
each employee of or consultant to Rainwire who currently receives or has
received salary, benefits and bonuses for the two most recently ended
fiscal years in excess of $50,000.
(b) Rainwire is in compliance in all material respects with all
applicable laws respecting employment and employment practices, terms and
conditions of employment, wages and hours, occupational safety and health,
including the National Labor Relations Act, the Immigration Reform and
Control Act of 1986, Title VII of the Civil Rights Act of 1964, the Civil
Rights Act of 1991, 42 U.S.C. Section 1981, the Americans With Disabilities
Act, the Fair Labor Standards Act, ERISA, the Occupational Safety and
Health Act, the Family Medical Leave Act, and any other law, ordinance or
regulation respecting the terms and conditions of employment, including
authorization to work in the United States, equal employment opportunity
(including prohibitions against discrimination, harassment, and
retaliation), payment of wages, hours of work, occupational safety and
health, and labor practices.
(c) Except as disclosed on Schedule 6.13(c),
(i) there are no charges, governmental audits, investigations,
administrative proceedings or complaints concerning Rainwire's
employment practices pending or, to the knowledge of Rainwire,
threatened before any federal, state or local agency or court, and, to
the knowledge of Rainwire, no basis for any such matter exists;
(ii) Rainwire is not a party to any union or collective bargaining
agreement, and, to the knowledge of Rainwire, no union attempts to
organize the employees of Rainwire have been made, nor are any such
attempts now threatened; and
(iii) there are no pending or, to the knowledge of Rainwire,
threatened material claims by any current or former employee of Rainwire
or any employment-related claims or investigations by any Authority,
including any charges to the Equal Employment Opportunity Commission or
state employment practice agency, investigations regarding compliance
with federal, state or local wage and hour laws, audits by the Office of
Federal Contractor Compliance Programs, complaints of sexual harassment
or any other form of unlawful harassment, discrimination, or
retaliation.
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SECTION 6.14. EMPLOYEE BENEFIT MATTERS. Schedule 6.14 attached
hereto sets forth a description of all "Employee Welfare Benefit Plans" and
"Employee Pension Benefit Plans" (as defined in Sections 3(1) and 3(2),
respectively, of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA")) existing on the date hereof that are or have been
maintained or contributed to by Rainwire. Except as listed on Schedule
6.14, Rainwire does not maintain any retirement or deferred compensation
plan, savings, incentive, stock option or stock purchase plan, unemployment
compensation plan, vacation pay, severance pay, bonus or benefit
arrangement, insurance or hospitalization program or any other fringe
benefit arrangement for any employee, consultant or agent of Rainwire,
whether pursuant to contract, arrangement, custom or informal
understanding, which do not constitute an "Employee Benefit Plan" (as
defined in Section 3(3) of ERISA), for which Rainwire may have any ongoing
material liability after Closing. Oasis does not maintain nor has it ever
contributed to any Multi-Employer Plan as defined by Section 3(37) of
ERISA. Rainwire does not currently maintain any Employee Pension Benefit
Plan subject to Title IV of ERISA. There have been no "prohibited
transactions" (as described in Section 406 of ERISA or Section 4975 of the
Code) with respect to any Employee Pension Benefit Plan or Employee Welfare
Benefit Plan maintained by Rainwire as to which Rainwire has been a party.
As to any employee pension benefit plan listed on Schedule 6.14 and subject
to Title IV of ERISA, there have been no reportable events (as such term is
defined in Section 4043 of ERISA).
SECTION 6.15. INSURANCE POLICIES. Attached hereto as Schedule 6.15
is a list of all insurance policies of Rainwire setting forth with respect
to each policy the name of the insurer, a description of the policy, the
dollar amount of coverage, the amount of the premium, the date through
which all premiums have been paid, and the expiration date. Each insurance
policy relating to the insurance referred to in Schedule 6.15 is in full
force and effect, is valid and enforceable, and Rainwire is not in breach
of or in default under any such policy. All policies listed on Schedule
6.15 will be outstanding and duly in force at the Closing Date, the
premiums payable in respect of such policies have been paid or will be paid
in full prior to the closing date, and none of such policies provide for
any retrospective premium adjustment or other experience based liability on
the part of Rainwire. Rainwire has not received any notice of or any reason
to believe that there is or has been any actual, threatened, or
contemplated termination or cancellation of any insurance policy relating
to the said insurance. Rainwire has not since inception (a) been denied or
had revoked, canceled or rescinded any policy of insurance, or (b) self
insured against any risk ordinarily insured against by similar businesses.
Schedule 6.15 contains a true, correct and complete list and summary of all
claims which have been made under each insurance policy relating to the
said insurance. Rainwire has not failed to give any notice or to present
any claim under any insurance policy in a due and timely fashion, and to
the best of its knowledge, all insurable risks are adequately covered by
insurance except for any exposure occasioned by lack of Directors' and
Officers' insurance coverage.
SECTION 6.16. TAXES. Except as set forth on Schedule 6.16, Rainwire
has filed or obtained filing extensions for all tax returns, federal,
state, county, and local, including payroll taxes, required to be filed by
it, and Rainwire has paid or established adequate reserves (in accordance
with generally accepted accounting principles) for the payment of all taxes
shown to be due by such returns as well as all other taxes, assessments,
and governmental charges which have become due or payable, including,
without limitation, all taxes which Rainwire is obligated to withhold from
amounts owing to employees, creditors, and third parties. The federal
income tax returns of Rainwire have never been audited by the Internal
Revenue Service and no state income or sales tax returns of Rainwire have
been audited. No deficiency assessment with respect to or proposed
adjustment of Rainwire's federal, state, county, or local taxes, including
payroll taxes, is pending or, to the best of Rainwire's knowledge,
threatened. There is no tax lien, whether imposed by any federal, state,
county, or local taxing authority, outstanding against the assets,
properties, or business of Rainwire (other than liens for taxes not yet due
and payable). Neither Rainwire nor any of its shareholders have ever filed
a consent pertaining to Rainwire pursuant to Section 341(f) of the IRC (as
hereinafter defined), relating to collapsible corporations.
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SECTION 6.17. INTERESTED TRANSACTIONS. Except as provided on
Schedule 6.17, Rainwire is not a party to any contract, loan or other
transaction with any Rainwire Shareholder nor does Rainwire have any direct
or indirect interest in or affiliation with any Rainwire Shareholder to any
such contract, loan or other transaction. No Rainwire Shareholder is an
employee, consultant, partner, principal, director or owner of, or has any
other direct or indirect interest in or affiliation with, any person or
business entity that is engaged in a business that competes with or is
similar to the business of Rainwire.
SECTION 6.18. INTELLECTUAL PROPERTY.
(a) Attached hereto as Schedule 6.18 is a true, correct and complete
list of all of Rainwire's patents, trademarks, trade names, or trademark or
trade name registrations, domain name registrations, service marks, and
copyrights or copyright registrations (the "Proprietary Rights"). All of
Rainwire's Proprietary Rights are valid, enforceable, in full force and
effect and free and clear of any and all security interests, liens, pledges
and encumbrances of any nature or kind. Rainwire has not infringed upon and
are not infringing upon any patent, trademark, trade name, or trademark or
trade name registration, service xxxx, copyright, or copyright registration
of any other Person.
(b) No trade secret or confidential know-how material to the business
of Rainwire as currently operated has been disclosed or authorized to be
disclosed to any third party, other than pursuant to a non-disclosure
agreement that protects Rainwire's proprietary interests in and to such
trade secrets and confidential know-how, and other than disclosures to
employees, officers, directors, agents, attorneys, accountants,
consultants, independent contractors or other representatives of Rainwire,
each of whom is obligated (by contract, employment policy, cannons of
ethics or the like) to maintain the confidentiality of such information.
(c) The consummation of the transactions contemplated hereby will not
result in the loss or impairment of the right of Rainwire or any of its
successors to own, use, license or sublicense any of the Intellectual
Property currently owned, used, licensed or sublicensed by Rainwire nor
will it require the consent of any Authority or third party in respect of
any such Intellectual Property and no present or former employee, or
officer of Rainwire has any right, title or interest, directly or
indirectly, in whole or in part, in any Intellectual Property.
SECTION 6.19. BROKERAGE. Except as disclosed on Schedule 6.20,
Rainwire has not employed any broker, finder, advisor, consultant or other
intermediary in connection with this Agreement or the transactions
contemplated by this Agreement who is or might be entitled to any fee,
commission or other compensation from Rainwire, or from Oasis or its
Affiliates, upon or as a result of the execution of this Agreement or the
consummation of the transactions contemplated hereby. Such fee shall be
borne by Rainwire.
SECTION 6.20. SUBSIDIARIES. Except as set forth on Schedule 6.20,
Rainwire does not have any subsidiaries and does not, directly or
indirectly, own a controlling interest in any corporation, partnership,
joint venture or other entity.
SECTION 6.21. STATEMENTS TRUE AND CORRECT.
(a) No representation or warranty made herein by Rainwire, nor in any
statement, certificate or instrument to be furnished to Oasis or the Oasis
Shareholders by Rainwire pursuant to any Share Exchange Document, contains
or will contain any untrue statement of material fact or omits or will omit
to state a material fact necessary, in light of the circumstances under
which it was made, to make these statements contained herein and therein
not misleading.
(b) None of the information supplied or to be supplied by Rainwire for
inclusion or incorporation by reference into the Form S-4 will, at the time
the Form S-4 is filed with the SEC, at any time the Form S-4 is amended or
supplemented, at the time the Form S-4 becomes effective under the
Securities Act and the Exchange Act or on the date it is first mailed to
holders of Rainwire Common Stock, contain any untrue statement of a
material fact or omit to state any material fact
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required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they will be made, not
misleading.
(c) Notwithstanding the foregoing provisions of this Section 6.21(b),
no representation or warranty is made by Rainwire with respect to
information supplied or to be supplied by Oasis for inclusion or
incorporation by reference into the Form S-4 nor with respect to any
statements made or incorporated by reference in the Form S-4 based in whole
or in part upon such information.
ARTICLE VII
ADDITIONAL AGREEMENTS
SECTION 7.01. ACCESS TO INFORMATION. From the date of this Agreement
through the Closing Date, Oasis will afford the officers and authorized
representatives of Rainwire access during regular business hours and upon
reasonable notice to Oasis's properties, books and records that may relate to or
concern the Share Exchange and will furnish such parties with such additional
financial, operating and other information as to the business and properties of
Oasis as such parties may from time to time reasonably request. Such parties
shall also be allowed access, upon reasonable notice, to consult with the
officers, employees, accountants, counsel and agents of Oasis in connection with
such investigation of the properties and business of Oasis. In addition, from
the date of this Agreement through the Closing Date, Rainwire will afford the
officers and authorized representatives of Oasis access during regular business
hours and upon reasonable notice to all of Rainwire's properties, books and
records that may relate to or concern the Share Exchange and will furnish such
parties with such additional financial, operating and other information as to
the business and properties of Rainwire as such parties may from time to time
reasonably request. Such parties shall also be allowed access, upon reasonable
notice, to consult with the officers, employees, accountants, counsel and agents
of Rainwire in connection with such investigation of the properties and business
of Rainwire. In each case, such access or investigation shall be subject to
Section 7.07.
SECTION 7.02. NO-SHOP. Unless and until this Agreement is terminated
pursuant to Article X hereof, Oasis shall not directly or indirectly, through
any officer, director, shareholder, employee, agent, or otherwise: (a) solicit,
initiate or encourage submission of proposals or offers from any person or other
entity relating to any purchase of any acquisition or business combination of
all or a material amount of the assets of, or an equity interest in Oasis, or
approve or undertake any such transaction; (b) participate in any discussions or
negotiations regarding, or furnish to any other person, corporation or other
entity, any information with respect to, or otherwise cooperate in any way with,
or assist or participate in, facilitate or encourage, any effort or attempt by
any other person, corporation or other entity to do, any of the foregoing; or
(c) enter into any contract, agreement or understanding, whether oral or
written, that would prevent the consummation of the Share Exchange.
Notwithstanding the foregoing, in the event Oasis or any Oasis Shareholder shall
directly or indirectly receive a proposal relating to any acquisition or
business combination involving Oasis, Oasis or such Oasis Shareholder shall
immediately notify Rainwire in writing of the terms of such proposal. Oasis
agrees that it will, and will cause its officers, directors and representatives
to, immediately cease and cause to be terminated any activities, discussions or
negotiations existing as of the date of this Agreement with any parties
conducted heretofore with respect to any acquisition, business combination,
equity interest or similar transaction with respect to Oasis.
If either Oasis or the Oasis Shareholders signs a letter of intent or other
agreement in breach of this Section 7.02, and such transaction is ultimately
consummated, then, immediately upon the closing of such transaction, Oasis shall
pay Rainwire the sum of $10,000. The Parties agree that this amount is in
consideration for Rainwire's expenses and lost opportunities in connection with
a breach of this Section 7.02 by Oasis and shall not be construed as a penalty.
SECTION 7.03. AFFIRMATIVE COVENANTS OF OASIS. From the date hereof until
the earlier of the Effective Time or the termination of this Agreement, Oasis
covenants and agrees that, unless the prior
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written consent of Rainwire shall have been obtained, and except as otherwise
expressly contemplated herein, Oasis shall:
(a) operate its business only in the usual, regular, and ordinary
course of business, consistent with past practices;
(b) use reasonable commercial efforts to preserve intact its business
organization, licenses, permits, government programs, private programs and
customers;
(c) use reasonable commercial efforts to retain the services of its
employees, agents and consultants on terms and conditions not less
favorable than those existing prior to the date hereof and to ensure that
there are no material or adverse changes to employee relations;
(d) keep and maintain its assets in their present condition, repair
and working order, except for normal depreciation and wear and tear, and
maintain its insurance, rights and licenses;
(e) pay all accounts payable of Oasis in accordance with past practice
and collect all accounts receivable in accordance with past practice;
(f) consult with Rainwire prior to undertaking any new business
opportunity outside the ordinary course of business and not undertake such
new business opportunity without the prior written consent of Rainwire;
(g) make available to Rainwire true and correct copies of all internal
management and control reports (including aging of accounts receivable,
listings of accounts payable, and inventory control reports) and financial
statements related to Oasis and furnished to management of Oasis;
(h) cause all tax returns that have not been filed prior to the date
hereof to be prepared and filed on or before the date such tax return is
required to be filed (taking into account any extensions of the filing
deadlines granted); provided, however, that any such tax return shall not
be filed without a reasonable opportunity for prior review and comment by
Rainwire;
(i) as soon as reasonably practicable after they become available, but
in no event more than 30 days following the end of each calendar month,
deliver to Rainwire true and complete copies of its monthly financial
statements for each calendar month ending subsequent to the date hereof on
the format historically utilized by Oasis;
(j) perform in all material respects all obligations under agreements
relating to or affecting its assets, properties or rights;
(k) keep in full force and effect present insurance policies or other
comparable insurance coverage; and
(l) notify Rainwire of (i) any event or circumstance which has caused
or constituted, or is reasonably likely to have a Oasis Material Adverse
Effect or would cause or constitute, a breach of any of the
representations, warranties or covenants contained herein by Oasis or the
Oasis Shareholders; or (ii) any material change in the normal course of
business or in the operation of the assets, and of any governmental
complaints, investigations or hearings (or communications indicating that
the same may be contemplated), adjudicatory proceedings, budget meetings or
submissions involving Oasis or any material property of Oasis. Oasis agrees
to keep Rainwire fully informed of such events and to permit Rainwire's
representatives prompt access to all materials prepared in connection
therewith.
SECTION 7.04. NEGATIVE COVENANTS OF OASIS. From the date hereof until the
earlier of the Effective Time or the termination of this Agreement, Oasis
covenants and agrees that it will not do any of the following without the prior
written consent of Rainwire:
(a) take any action which would (i) adversely affect the ability of
any party to the Share Exchange Documents to obtain any consents required
for the transactions contemplated thereby, or
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(ii) adversely affect the ability of any party hereto to perform its
covenants and agreements under the Share Exchange Documents;
(b) amend any of its organizational or governing documents;
(c) incur any additional debt obligation or other obligation for
borrowed money except in the ordinary course of the business of Oasis
consistent with past practices, or impose, or suffer the imposition, on any
asset of Oasis of any lien or permit any such lien to exist;
(d) repurchase, redeem, or otherwise acquire or exchange, directly or
indirectly, any Oasis Common Stock, or declare or pay any dividend or make
any other distribution in respect of Oasis Common Stock;
(e) other than pursuant to the Share Exchange Documents, issue, sell,
pledge, encumber, authorize the issuance of, enter into any contract to
issue, sell, pledge, encumber, or authorize the issuance of, or otherwise
permit to become outstanding, any additional Oasis Common Stock or any
rights with respect to any Oasis Common Stock;
(f) purchase or acquire any assets or properties, whether real or
personal, tangible or intangible, or sell or dispose of any assets or
properties, whether real or personal, tangible or intangible, except in the
ordinary course of business and consistent with past practices;
(g) adjust, split, combine or reclassify any Oasis Common Stock or
issue or authorize the issuance of any other securities in respect of or in
substitution for Oasis Common Stock, or sell, lease, mortgage or otherwise
dispose of or otherwise encumber any asset having a book value in excess of
$50,000 other than in the ordinary course of business for reasonable and
adequate consideration;
(h) purchase any securities or make any material investment, either by
purchase of stock or other securities, contributions to capital, asset
transfers, or purchase of any assets, in any entity, or otherwise acquire
direct or indirect control over any other entity;
(i) grant any increase in compensation or benefits to the employees or
officers of Oasis, except in accordance with past practice; pay any
severance or termination pay or any bonus other than pursuant to written
policies or written contracts in effect as of the date hereof and disclosed
on the Schedules hereto; enter into or amend any severance agreements with
officers of Oasis; or grant any material increase in fees or other
increases in compensation or other benefits to directors of Oasis except in
accordance with past practice;
(j) other than as contemplated by this Agreement or as set forth on
Schedule 7.04, enter into or amend any employment contract between Oasis
and any person or entity (unless such amendment is required by law) that
Oasis does not have the unconditional right to terminate without liability
(other than liability for services already rendered), at any time on or
after the Effective Time;
(k) adopt any new employee benefit plan or make any material change in
or to any existing employee benefit plans other than any such change that
is required by law or that, in the opinion of counsel, is necessary or
advisable to maintain the tax qualified status of any such plan;
(l) make any significant change in any tax or accounting methods or
systems of internal accounting controls, except as may be appropriate to
conform to changes in tax laws or regulatory accounting requirements or
GAAP;
(m) commence any litigation other than in accordance with past
practice, settle any litigation involving any liability of Oasis for
material money damages or restrictions upon the operations of Oasis;
(n) except as set forth on Schedule 7.04, modify, amend or terminate
any material contract or waive, release, compromise or assign any material
rights or claims;
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(o) except in the ordinary course of business and, even if in the
ordinary course of business, then not in an amount to exceed $25,000 in the
aggregate, make or commit to make any capital expenditure, or enter into
any lease of capital equipment as lessee or lessor;
(p) take any action, or omit to take any action, which would cause any
of the representations and warranties contained in Article V to be untrue
or incorrect;
(q) make any loan to any person or increase the aggregate amount of
any loan currently outstanding to any person; and
(r) shall not agree, in writing or otherwise, to take any of the
foregoing actions or take any action that would result in any of the
conditions to the Share Exchange not being satisfied, or, except as
otherwise allowed hereunder, that could reasonably be expected to prevent,
impede, interfere with or significantly delay the transactions contemplated
hereby.
SECTION 7.05. AFFIRMATIVE COVENANTS OF RAINWIRE. From the date hereof
until the earlier of the Effective Time or the termination of this Agreement,
Rainwire covenants and agrees that, unless the prior written consent of Oasis
shall have been obtained, and except as otherwise expressly contemplated herein,
Rainwire shall and shall cause each of its Subsidiaries to:
(a) use reasonable commercial efforts to preserve intact its business
organization, licenses, permits, government programs, private programs and
customers; and
(b) notify Oasis of (i) any event or circumstance which has caused or
constituted, or is reasonably likely to have an Rainwire Material Adverse
Effect or would cause or constitute, a breach of any of Rainwire's
representations, warranties or covenants contained herein; or (ii) any
material change in the normal course of business or in the operation of
Rainwire's assets, and of any material governmental complaints,
investigations or hearings (or communications indicating that the same may
be contemplated) or adjudicatory proceedings.
SECTION 7.06. NEGATIVE COVENANTS OF RAINWIRE. From the date hereof until
the earlier of the Effective Time or the termination of this Agreement, Rainwire
covenants and agrees that neither Rainwire nor any of its Subsidiaries, will do
any of the following without the prior written consent of Oasis:
(a) take any action which would (i) adversely affect the ability of
any party to the Share Exchange Documents to obtain any consents required
for the transactions contemplated thereby, or (ii) adversely affect the
ability of any party hereto to perform its covenants and agreements under
the Share Exchange Documents;
(b) take any action, or omit to take any action, which would cause any
of the representations and warranties contained in Article VI to be untrue
or incorrect.
SECTION 7.07. CONFIDENTIALITY. Rainwire and Oasis agree that each shall
hold in confidence any confidential information about the other that it has
received, or hereafter receives, pursuant to any provision of this Agreement
under circumstances indicating the confidentiality of such information unless
(a) such information shall have been publicly disclosed other than as a result
of any wrongful action by the recipient of such information or (b) the recipient
of such information independently develops or is aware of such information.
SECTION 7.08. PUBLIC ANNOUNCEMENTS. Rainwire, Oasis and the Oasis
Shareholders will consult with each other before issuing any press releases or
otherwise making any public statements or filings with governmental entities
with respect to this Agreement or the transactions contemplated hereby and shall
not issue any press releases or make any public statements or filings with
governmental entities prior to such consultation and shall modify any portion
thereof if the other party objects thereto, unless the same may be required by
applicable law.
SECTION 7.09. FILINGS WITH STATE OFFICES. Upon the terms and subject to
the conditions of this Agreement, Oasis and Rainwire shall execute and file a
Certificate of Share Exchange with the Secretary of State of the State of
Georgia in connection with the Closing.
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SECTION 7.10. CONDITIONS TO CLOSING. The Oasis Shareholders, Oasis and
Rainwire agree to use their commercially reasonable best efforts to satisfy the
closing conditions set forth in Articles VIII and IX of this Agreement within
three (3) business days after all regulatory matters have been complied with.
ARTICLE VIII
CONDITIONS TO OBLIGATIONS OF RAINWIRE
The obligation of Rainwire to consummate the Share Exchange is subject to
the satisfaction or written waiver, at or prior to Closing, of each of the
following conditions:
SECTION 8.01. REPRESENTATIONS AND WARRANTIES. The representations
and warranties of Oasis and the Oasis Shareholders set forth in this
Agreement, or any document or instrument delivered to Rainwire hereunder,
shall be true and correct in all material respects as of the Effective Time
with the same force and effect as if such representations and warranties
had been made at and as of the Effective Time, except with respect to any
of such representations and warranties referring to a state of facts
existing on a specified date prior to the Closing Date, it shall be
sufficient if at the Effective Time such representation and warranty
continues to describe accurately the state of facts existing on the date so
specified; provided, however, that Oasis and the Oasis Shareholders shall
have five days to cure any such material breach of a representation or
warranty (it being agreed that such five day period shall commence as to
such breach upon Rainwire becoming aware thereof and that disclosure of a
matter subsequent to the date hereof shall not constitute a cure).
SECTION 8.02. PERFORMANCE; COVENANTS. All of the terms, covenants
and conditions of the Share Exchange Documents to be complied with or
performed by Oasis or the Oasis Shareholders at or prior to Closing shall
have been complied with and performed in all material respects including,
but not limited to, the delivery of the following documents:
(a) A good standing certificate regarding Oasis, certified by the
Secretary of State of the respective state of incorporation and all
states where such entity is qualified to do business, dated within 30
business days of the Closing;
(b) A certificate dated as of the Closing Date signed by the duly
authorized officers of Oasis certifying that the representations and
warranties of Oasis set forth herein are true and correct in all
material respects as of the Effective Time and that Oasis and each of
the Oasis Shareholders have fulfilled all of the conditions of this
Article VIII;
(c) Written consents of all third parties necessary for the
consummation of the transactions contemplated by the Share Exchange
Documents;
(d) Resolutions duly adopted by Oasis (Board and shareholder)
approving the execution, delivery and performance of this Agreement and
the consummation of the Share Exchange, certified by an appropriate
officer of Oasis; and
(e) All books and records of Oasis, including all corporate and
other records, minute books, stock record books, stock registers, books
of accounts, contracts, agreements and such other documents or
certificates as shall be reasonably requested by Rainwire, which the
parties acknowledge will at the Closing be located at the corporate
offices of Oasis.
SECTION 8.03. NECESSARY CONSENTS AND APPROVALS. Rainwire, Oasis and
the Oasis Shareholders shall have obtained all licenses, consents and
permits, provided all notices, and all waiting periods required by Law,
shall have expired, necessary in order for Rainwire and Oasis to consummate
the Share Exchange.
SECTION 8.04. NO MATERIAL ADVERSE CHANGE. There shall not have
occurred a Oasis Material Adverse Effect between the date hereof and the
Effective Time or a material change in the financial condition of Oasis as
represented in the Oasis Financial Statements and the Schedules attached to
this Agreement.
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SECTION 8.05. NO INJUNCTION, ETC. No action, proceeding,
investigation or legislation shall have been instituted, threatened or
proposed before any court, governmental agency, or legislative body to
enjoin, restrain, prohibit or obtain substantial damages in respect of, or
which is related to, arises out of, this Agreement or the consummation of
the Share Exchange, or which is related to or arises out of the business or
operations of Oasis, if such action, proceeding, investigation or
legislation, in the reasonable judgment of Rainwire or its counsel, would
make it inadvisable to consummate such transactions. In the event any
order, decree or injunction shall have been issued, each party shall use
its reasonable efforts to remove any such order, decree or injunction.
SECTION 8.06. OASIS SHAREHOLDER APPROVAL. This Agreement and all
other documents and instruments to be delivered in connection herewith,
shall have been approved by the Oasis Shareholders.
SECTION 8.07. EFFECTIVENESS OF THE FORM S-4. The Form S-4 shall have
been declared effective by the SEC under the Securities Act. No stop order
suspending the effectiveness of the Form S-4 shall have been issued by the
SEC and no proceedings for that purpose shall have been initiated or
threatened by the SEC.
SECTION 8.08. CERTIFICATE OF SHARE EXCHANGE. Oasis shall have
executed and delivered to Rainwire the Certificate of Share Exchange to be
filed with the Secretary of State of the State of
Georgia in connection
with the Share Exchange.
SECTION 8.09. TAX-FREE SHARE EXCHANGE. The Parties are reasonably
satisfied that as of the Closing Date, the transactions contemplated by the
Share Exchange will qualify as a tax-free reorganization within the meaning
of Section 368(a) of the Code.
ARTICLE IX
CONDITIONS TO OBLIGATIONS OF OASIS AND OASIS SHAREHOLDERS
The obligations of Oasis and the Oasis Shareholders to close the Share
Exchange are subject to the satisfaction or waiver, at or prior to Closing, of
each of the following conditions:
SECTION 9.01. REPRESENTATIONS AND WARRANTIES. The representations
and warranties of Rainwire set forth in this Agreement, or any document or
instrument delivered to any party hereunder, shall be true and correct in
all material respects as of the Effective Time with the same force and
effect as if such representations and warranties had been made at and as of
the Effective Time, except with respect to any of such representations and
warranties referring to a state of facts existing at a specified date prior
to the Closing Date, it shall be sufficient if at the Effective Time such
representation and warranty continues to describe accurately in all
material respects the state of facts existing on the date so specified;
provided, however, that Rainwire shall have five days to cure any such
material breach of a representation or warranty (it being agreed that such
five day period shall commence as to such breach upon Oasis becoming aware
thereof and that disclosure of a matter subsequent to the date hereof shall
not constitute a cure).
SECTION 9.02. PERFORMANCE; COVENANTS. All of the terms, covenants
and conditions of this Agreement to be complied with or performed by
Rainwire at or prior to the Closing shall have been complied with and
performed in all material respects, including, but not limited to delivery
of the following documents:
(a) A good standing certificate regarding Rainwire certified by
the Secretary of State of the State of Delaware, dated within 30 days
prior to Closing;
(b) A certificate dated as of the Closing Date signed by a duly
authorized officer of Rainwire certifying that the representations and
warranties of Rainwire set forth herein are true and correct in all
material respects as of the Effective Time and that Rainwire has
fulfilled all of the conditions of this Article; and
A-27
(c) Resolutions duly adopted by the Board of Directors of Rainwire
approving the execution, delivery and performance of this Agreement and
the consummation of the Share Exchange, certified by an appropriate
officer of Rainwire;
SECTION 9.03. NECESSARY CONSENTS AND APPROVALS. Rainwire, Oasis and
the Oasis Shareholders shall have obtained all licenses, consents and
permits, provided all notices, and all waiting periods required by Law,
shall have expired, necessary in order for Rainwire and Oasis to consummate
the Share Exchange, including the waiting period associated with the Form
S-4 filed, or to be filed, by Rainwire in connection with the Amendment.
SECTION 9.04. NO MATERIAL ADVERSE CHANGE. There shall not have
occurred an Rainwire Material Adverse Effect between the date hereof and
the Effective Time.
SECTION 9.05. NO INJUNCTION, ETC. No action, proceeding,
investigation or legislation shall have been instituted, threatened or
proposed before any court, governmental agency, or legislative body to
enjoin, restrain, prohibit or obtain substantial damages in respect of, or
which is related to, arises out of, this Agreement or the consummation of
the Share Exchange, or which is related to or arises out of the business or
operations of Rainwire, if such action, proceeding, investigation or
legislation, in the reasonable judgment of Oasis or its counsel, would make
it inadvisable to consummate such transactions. In the event any order,
decree or injunction shall have been issued, each party shall use its
reasonable efforts to remove any such order, decree or injunction.
SECTION 9.06. EFFECTIVENESS OF FORM S-4. The Form S-4 shall have
been declared effective by the SEC under the Securities Act. No stop order
suspending the effectiveness of the Form S-4 shall have been issued by the
SEC and no proceedings for that purpose shall have been initiated or
threatened by the SEC.
SECTION 9.07. CERTIFICATE OF SHARE EXCHANGE. Rainwire shall have
executed and delivered to Oasis the certificate of share exchange to be
filed with the Secretary of State of the State of
Georgia in connection
with the Share Exchange.
SECTION 9.08. TAX-FREE SHARE EXCHANGE. The Parties are reasonably
satisfied that as of the Closing Date, the transactions contemplated by the
Share Exchange will qualify as a tax-free reorganization within the meaning
of Section 368(a) of the Code.
SECTION 9.09. OTC BULLETIN BOARD LISTING. The shares of Rainwire
Common Stock to be issued in the Share Exchange shall have been approved
for listing on the OTC Bulletin Board, unless the failure to have such
shares approved for listing on the OTC Bulletin Board is waived in writing
by Oasis.
SECTION 9.10. RAINWIRE SHAREHOLDER APPROVAL. Rainwire shall have
taken all steps required by the DGCL and the federal securities laws to
obtain the consent of a majority of its shareholders in favor of the
Amendment and to notify the remaining shareholders of the Amendment.
ARTICLE X
TERMINATION
SECTION 10.01. RIGHT OF TERMINATION. This Agreement and the Share
Exchange may be terminated at any time prior to the Closing Date:
(a) By the mutual written consent of Rainwire and Oasis.
(b) by either Rainwire or Oasis if any court of competent jurisdiction
in the United States or any State shall have issued an order, judgment or
decree (other than a temporary restraining order) restraining, enjoining or
otherwise prohibiting the exchange of stock and such order, judgment or
decree shall have become final and nonappealable; provided that the right
to terminate this Agreement under this Section 10.01(b) shall not be
available to any party whose failure to fulfill any
A-28
obligation under this Agreement has been the cause of, or resulted in, the
failure of the completion of the Closing to occur on or before such date;
or
(c) by Rainwire if there has been (i) a material breach of any
covenant or agreement or of a representation or warranty herein on the part
of Oasis which has not been cured, or adequate assurance (acceptable to
Rainwire in its sole discretion) of cure given, in either case, within
fifteen (15) business days following receipt of notice of such breach; or
(d) by Oasis if (i) there has been a material breach of any covenant
or agreement or of a representation or warranty herein on the part of
Rainwire which has not been cured, or adequate assurance (acceptable to
Oasis in its sole discretion) of cure given, in either case, within fifteen
(15) business days following receipt of notice of such breach or (ii) at
Closing Rainwire shall not be listed on the Over-the-Counter Bulletin Board
(OTC:BB) exchange; or
(e) by either Rainwire or Oasis (and the Oasis Shareholders) if either
of such party's due diligence investigation has disclosed the existence of
(i) any matter relating to the other party or its business that is
materially and adversely (to the investigating party) at variance with
those matters theretofore disclosed to the investigating party, or (ii) any
matter which, in the investigating party's reasonable judgment, (A)
indicates a material adverse change in the condition, assets or prospects
of the other party, or (B) would make it inadvisable to consummate the
exchange of stock and other transactions contemplated by this Agreement.
SECTION 10.02. EFFECT OF TERMINATION. In the event of termination in
accordance with this Article X, this Agreement shall become void and of no
further force or effect, without any liability on the part of any of the parties
hereto or their respective owners, directors, officers or employees, except the
obligations of each party to preserve the confidentiality of documents,
certificates and information furnished to such party pursuant thereto and for
any obligation or liability of any party based on or arising from any breach or
default by any such party with respect to his or its particular representations,
warranties, covenants or agreements, as to his or its particular actions or
inactions, contained in the Share Exchange Documents.
ARTICLE XI
SURVIVAL OF TERMS; INDEMNIFICATION
SECTION 11.01. INDEMNIFICATION BY RAINWIRE. Rainwire shall defend,
indemnify and hold harmless Oasis and the Oasis Shareholders and their
respective heirs, personal and legal representatives, guardians, successors and
assigns, from and against any and all claims, threats, liabilities, taxes,
interest, fines, penalties, suits, actions, proceedings, demands, damages,
losses, costs and expenses (including attorneys' and experts' fees and court
costs) of every kind and nature arising out of, resulting from or in connection
with any misrepresentation or omission or breach by Rainwire of any
representation or warranty contained in this Agreement.
SECTION 11.02. INDEMNIFICATION BY OASIS AND THE OASIS SHAREHOLDERS. Oasis
and the Oasis Shareholders shall defend, indemnify and hold harmless Rainwire
and its respective representatives, successors and assigns, from and against any
and all claims, threats, liabilities, taxes, interest, fines, penalties, suits,
actions, proceedings, demands, damages, losses, costs and expenses (including
attorneys' and experts' fees and court costs) of every kind and nature arising
out of, resulting from, or in connection with any misrepresentation or omission
or breach by Oasis or the Oasis Shareholders or any representation or warranty
contained in this Agreement.
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ARTICLE XII
MISCELLANEOUS PROVISIONS
SECTION 12.01. NOTICES.
(a) Any notice sent in accordance with the provisions of this Section
12.01 shall be deemed to have been received (even if delivery is refused or
unclaimed) on the date which is: (i) the date of proper posting, if sent by
certified U.S. mail or by express U.S. mail or private overnight courier;
or (ii) the date on which sent, if sent by facsimile transmission, with
confirmation and with the original to be sent by certified U.S. mail,
addressed as follows:
If to Oasis: Oasis Group, Inc.
First Floor, Monteith Commons
0000 Xxxxxxxx Xxxx, X.X.
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
Facsimile: (000) 000-0000
If to Rainwire: Rainwire Partners, Inc.
First Floor, Monteith Commons
0000 Xxxxxxxx Xxxx, X.X.
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxxxxxx
Facsimile: (000) 000-0000
(b) Any party hereto may change its address specified for notices
herein by designating a new address by notice in accordance with this
Section 12.01.
SECTION 12.02. EXPENSES. Each of the parties hereto shall bear and pay
all costs and expenses incurred by it or on its behalf in connection with the
transactions contemplated hereunder, including any fees of brokers, finders
investment bankers or other agents or incurred to obtain a fairness opinion;
provided, however, for all legal, accounting, investment banking and other fees
and expenses incurred by Oasis and the Oasis Shareholders as a result of the
transactions contemplated hereby, Oasis shall pay from its own funds the fees
and expenses of the Oasis Shareholders prior to the Closing, or to the extent
not so paid, then Oasis shall pay such fees and expenses after the Closing when
due.
SECTION 12.03. FURTHER ASSURANCES. Each party covenants that at any time,
and from time to time, after the Closing, it will execute such additional
instruments and take such actions as may be reasonably requested by the other
parties to confirm or perfect or otherwise to carry out the intent and purposes
of this Agreement.
SECTION 12.04. WAIVER. Any failure on the part of any party to comply
with any of its obligations, agreements or conditions hereunder may be waived by
any other party to whom such compliance is owed. No waiver of any provision of
this Agreement shall be deemed, or shall constitute, a waiver of any other
provision, whether or not similar, nor shall any waiver constitute a continuing
waiver.
SECTION 12.05. ASSIGNMENT. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto without the prior written consent of all other parties.
SECTION 12.06. BINDING EFFECT. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs, legal
representatives, executors, administrators, successors and permitted assigns.
This Agreement shall survive the Closing and not be merged therein.
SECTION 12.07. HEADINGS. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
SECTION 12.08. ENTIRE AGREEMENT. This Agreement and the Exhibits,
Schedules, certificates and other documents delivered pursuant hereto or
incorporated herein by reference, contain and constitute the
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entire agreement among the parties and supersede and cancel any prior
agreements, representations, warranties, or communications, whether oral or
written, among the parties relating to the transactions contemplated by this
Agreement. Neither this Agreement nor any provision hereof may be changed,
waived, discharged or terminated orally, but only by an agreement in writing
signed by the party against whom or which the enforcement of such change,
waiver, discharge or termination is sought.
SECTION 12.09. GOVERNING LAW; SEVERABILITY. This Agreement shall be
governed by and construed in accordance with the Laws of the State of
Georgia,
without regard to any applicable conflicts of Laws. The provisions of this
Agreement are severable and the invalidity of one or more of the provisions
herein shall not have any effect upon the validity or enforceability of any
other provision.
SECTION 12.10. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
SECTION 12.11. BROKERS AND FINDERS. Except as set forth on Schedule
12.11, neither Oasis nor the Oasis Shareholders on the one hand, or Rainwire on
the other hand, has employed or otherwise incurred in any manner any liability
for any brokerage fees, agents commissions or finder's fees concerning the
transactions contemplated hereby.
SECTION 12.12. SCHEDULES AND EXHIBITS. All Schedules and Exhibits
attached to this Agreement are by reference made a part hereof. All Schedules
will be attached to this Agreement prior to the Closing. All Exhibits will be
attached to this Agreement within five (5) after this Agreement is signed by all
parties.
SECTION 12.13. ENFORCEMENT OF AGREEMENT. Except as otherwise provided
herein, any and all remedies herein expressly conferred upon a party will be
deemed cumulative with and not exclusive of any other remedy conferred hereby,
or by law or equity upon such party, and the exercise by a party of any one
remedy will not preclude the exercise of any other remedy. Oasis hereto agrees
that money damages or other remedy at law would not be sufficient or adequate
remedy for any breach or violation of, or a default under, this Agreement by
them and that in addition to all other remedies available to Rainwire, Rainwire
shall be entitled to the fullest extent permitted by law to an injunction
restraining such breach, violation or default or threatened breach, violation or
default and to any other equitable relief, including, without limitation,
specific performance, without bond or other security being required.
ARTICLE XIII
CERTAIN DEFINITIONS
Except as otherwise provided herein, the capitalized terms set forth below
shall have the following meanings:
"Affiliate" shall mean, with regard to any Person, (a) any Person,
directly or indirectly, controlled by, under common control of, or
controlling such Person, (b) any Person, directly or indirectly, in which
such Person holds, of record or beneficially, five percent or more of the
equity or voting securities, (c) any Person that holds, of record or
beneficially, five percent or more of the equity or voting securities of
such Person, (d) any Person that, through Contract, relationship or
otherwise, exerts a substantial influence on the management of such
Person's affairs, (e) any Person that, through Contract, relationship or
otherwise, is influenced substantially in the management of their affairs
by such Person, or (f) any director, officer, partner or individual holding
a similar position in respect of such Person.
"Agreement" shall mean the Amended and Restated Agreement and Plan of
Share Exchange.
"Authority" shall mean any governmental, regulatory or administrative
body, agency, arbitrator or authority, any court or judicial authority, any
public, private or industry regulatory agency, arbitrator authority,
whether international, national, federal, state or local.
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"Claim" shall have the meaning set forth in Section 5.09.
"Closing Date" shall have the meaning set forth in Section 1.02.
"Closing" shall mean the meaning set forth in Section 1.02.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"DGCL" shall mean the General Corporation Law of the State of
Delaware.
"Effective Time" shall have the meaning set forth in Section 1.03.
"ERISA" shall mean the Employee Retirement Security Act of 1974, as
amended.
"Exchange Agent" shall have the meaning set forth in Section 3.01.
"Exchange Ratio" shall have the meaning set forth in Section 2.02.
"GBCC" shall mean the
Georgia Business Corporation Code, as amended.
"Intellectual Property" shall mean all letters patent, patent
applications, inventions upon which patent applications have not yet been
filed, trade names, trademarks, trademark registrations and applications,
service marks, service xxxx registrations and applications, copyrights and
copyright registrations and applications, both domestic and foreign, owned,
possessed or used by Borrower.
"Knowledge" or "known," "to the knowledge of," or similar references
shall mean the actual knowledge of any of the directors, officers or
managerial personnel of Oasis with respect to the matter in question, and
such knowledge as any of the directors, officers or managerial personnel of
Oasis reasonably should have obtained upon diligent investigation and
inquiry into the matter in question.
"Lien" shall mean any mortgage, deed of trust, pledge, hypothecation,
assignment, deposit arrangement, encumbrance (including, without
limitation, any easement, right-of-way, zoning or similar restriction or
title defect), lien (statutory or other) or preference, priority or other
security agreement or preferential arrangement of any kind or nature
whatsoever (including, without limitation, any conditional sale or other
title retention agreement, any financing lease having substantially the
same economic effect as any of the foregoing and the filing of any
financing statement under the UCC or comparable law of any jurisdiction).
"Oasis" shall mean Oasis Group, Inc., a
Georgia corporation.
"Oasis Agreements" shall have the meaning set forth in Section 5.12.
"Oasis Common Stock" shall mean the Common Stock, no par value, of
Oasis.
"Oasis Material Adverse Effect" shall have mean a material adverse
effect on (a) Oasis's ability to perform its obligations under the Share
Exchange Documents to be executed and delivered by it or (b) the assets,
results of operations or prospects of Oasis taken as a whole.
"Oasis Shareholders" shall mean those persons listed on Schedule 1 of
this Agreement.
"Person" shall mean any corporation, partnership, joint venture,
company, syndicate, organization, association, trust, entity, joint stock
company, unincorporated organization, Authority or natural person.
"Rainwire" shall mean Rainwire Partners, Inc., a Delaware corporation.
"Rainwire Common Stock" shall mean the common stock, $.001 par value,
of Rainwire.
"Rainwire Material Adverse Effect" shall mean a material adverse
effect on (a) Rainwire's ability to perform its obligations under the Share
Exchange Documents to be executed and delivered by it or, (b) the assets,
results of operations or prospects of Rainwire and its Subsidiaries taken
as a whole.
"SEC Reports" shall have the meaning set forth in Section 6.06.
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"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Share Exchange" shall have the meaning set forth in Section 1.01.
"Share Exchange Documents" shall have the meaning set forth in Section
5.01.
"Subsidiary" shall mean any Person of which a majority of the
outstanding voting securities or other voting equity interests are owned,
directly or indirectly.
"Tax Return" means any return, declaration, report, claim for refund
or information return or statement relating to Taxes, including any
schedule or attachment thereto and including any amendment thereof.
"Tax" shall mean any Federal, state, local or foreign income, gross
receipts, license, payroll, employment, excise, severance, stamp,
occupation, premium, windfall profits, environmental (including taxes under
Section 59A of the Code), customs duties, capital stock, franchise,
profits, withholding, social security (or similar), unemployment,
disability, real property, personal property, sales, use, transfer,
registration, value added, alternative or add-on minimum, estimated or
other tax of any kind whatsoever, including any interest, penalty or
addition thereto, whether disputed or not, and "Taxes" means any or all of
the foregoing collectively.
Any singular term in this Agreement shall be deemed to include the plural,
and any plural term the singular. Whenever the words "include," "includes" or
"including" are used in this Agreement, they shall be deemed followed by the
words "without limitation."
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[Signature page to Amended and Restated Agreement and Plan of Share Exchange]
IN WITNESS WHEREOF, each of the Parties has caused this Amended and
Restated Agreement and Plan of Share Exchange to be executed on its behalf and
its corporate seal to be hereunto affixed and attested by officers thereunto as
of the day and year first above written.
RAINWIRE PARTNERS, INC.
By
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Name
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Title
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OASIS GROUP, INC.
By
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Name
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Title
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