STOCK ACQUISITION AGREEMENT
among
800AMERICA.COM, INC.,
INSHOP.COM INC.
and
CERTAIN SHAREHOLDERS OF INSHOP.COM INC.
<PAGE>
Stock Acquisition Agreement
AGREEMENT dated as of October 27, 2000 by and among 800America.com, Inc., a
Nevada corporation ("800America"); inShop.COM Inc., a Delaware corporation
("inShop") and those persons listed on Exhibit A (collectively the
"Stockholders" and individually a "Stockholder").
WITNESSETH:
PLAN OF REORGANIZATION OF THE COMPANIES
---------------------------------------
The reorganization will comprise the transfer to 800America of all of the
issued and outstanding Capital Stock of inShop in exchange solely for one
million eight hundred thousand (1,800,000) shares of common stock of 800America
having a par value of $0.001 per share (the "800America Stock"), all upon and
subject to the terms and conditions of the Agreement hereinafter set forth.
AGREEMENT
---------
NOW, THEREFORE, in consideration of the premises and the mutual and
independent covenants hereinafter set forth, the parties hereto agree as
follows:
1 Representations and Warranties of inShop.
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inShop hereby represents and warrants, that the following are true and
correct on the date hereof:
1.1 No Breaches of Statute or Contract; Required Consents.
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Neither the execution and delivery of this Agreement nor compliance by
inShop with the terms and provisions hereof will: (i) conflict with or result in
a breach of any of the provisions of the certificate of incorporation, bylaws or
other governing instruments of inShop or any judgment, order, decree, or ruling
to which inShop is a party, or any injunction to which it is subject of any
court or governmental authority or of any agreement, contract or commitment to
which it is a party and which is material to the financial condition of inShop
considered as a whole or (ii) require the affirmative consent or approval of any
non-governmental third party.
1.2 Authorization of Agreement.
--------------------------
inShop has the corporate power to enter into this Agreement and to perform
its obligations hereunder; the execution, delivery and, subject to requisite
stockholder approval, the performance of this Agreement by inShop has been duly
and validly authorized by the Board of Directors of inShop and inShop has taken,
or will use its best efforts to take prior to the Closing Date, all action
required by law, its certificate of incorporation and bylaws to authorize the
execution, delivery and performance of this Agreement.
1.3 Further Representations.
-----------------------
(a) inShop is duly organized and validly existing as a corporation under
the laws of the State of Delaware; has full corporate power to carry
on its business as it is now being conducted, and to own and operate
the properties and assets it now owns or operates; and is duly
qualified to do business and is in good standing in each jurisdiction,
other than the State of Delaware, where the conduct of its business or
the ownership of its properties require such qualification, except
where the failure to so qualify could not reasonably be expected to
have a materially adverse effect upon the business or financial
condition of inShop.
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(b) Pursuant to its certificate of incorporation, inShop is authorized to
issue twenty million (20,000,000) shares of common stock, $0.01 par
value, of which a total of eight million eighty-nine thousand eight
hundred (8,089,800) shares are each validly issued, fully paid and
non-assessable and ten million (10,000,000) shares of preferred stock,
$0.01 par value, of which a total of five million six hundred
ninety-two thousand three hundred ninety-three and 79/100
(5,692,393.79) shares are each validly issued, fully paid and
non-assessable. Pursuant to each Series B Note (each a "Note") issued
by inShop pursuant to a Note Purchase Agreement dated September 2000
between inShop and a Stockholder purchasing such Note (each a "Note
Purchase Agreement"), such Stockholder has the right to require inShop
to issue a certain number of shares of a class of preferred stock to
be designated Series B Convertible Participating Preferred Stock of
inShop pursuant to the Note Purchase Agreement applicable to such
Note. Pursuant to each Common Stock Purchase Warrant (each a
"Warrant") issued by inShop pursuant to a Stock Purchase Agreement
dated November 5, 1999 among inShop, Lazard Technology Partners, LP
and the other purchasers signatory thereto, such Stockholder has the
right to purchase from inShop a certain number of shares of common
stock. inShop has no other classes of stock or convertible securities
outstanding. Except as set forth on Exhibit B, there are no existing
options, warrants, calls, commitments or rights of any character to
purchase or otherwise acquire from inShop shares of capital stock of
any class, no outstanding securities of inShop that are convertible
into shares of capital stock of inShop of any class, and no options,
warrants or rights to purchase from inShop any such convertible
securities.
(c) inShop has heretofore delivered to 800America an accurate and complete
copy of the balance sheet of inShop as of October 3, 2000 (the "inShop
Balance Sheet"). Such balance sheet fairly presents the financial
position of inShop at the date thereof and such balance sheet is in
conformity with accounting principles generally accepted in the United
States and consistently applied.
(d) inShop has delivered to 800America the following documents, all of
which have been signed for identification by the President of inShop
and are dated as of the date hereof: (i) a list of all the liabilities
and obligations of inShop as of the date of this Agreement as set
forth on Exhibit C and (ii) a list of all property and assets of
inShop as of the date of this Agreement as set forth on Exhibit D.
inShop has good and marketable title to all properties and assets,
including web sites and domains described in Exhibit D. All of the
properties and assets listed on Exhibit D are free and clear of all
mortgages, pledges, liens, charges, security interests or other
encumbrances of any nature whatsoever, except for mortgages, pledges,
liens, charges, security interests or other encumbrances as set forth
in Exhibit C, liens for current taxes not yet due and payable and
imperfections of title, easements and encumbrances, if any, that are
not substantial in character, amount or extent and do not materially
detract from the value, or interfere with the present or proposed use,
of the property or assets subject thereto or affected thereby, or
otherwise materially impair business operations. All leases pursuant
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to which inShop leases any substantial amount of real or personal
property are in good standing, valid and effective in accordance with
their respective terms, and under none of these leases is there any
existing default, event of default or event that with notice or the
lapse of time, or both, would constitute a default and in respect to
which inShop has not taken adequate steps to prevent a default from
occurring.
(e) The equipment, computers, and other physical assets of inShop that are
necessary to the operation of the business being conducted by it are
in good operating condition and repair, subject only to the ordinary
wear and tear of the business.
(f) Neither inShop nor, to the knowledge of inShop, any other party have
breached any material provision of, or defaulted in any material
respect of the terms of any contract or agreement to which inShop is a
party which could reasonably be expected to have a materially adverse
effect upon the business or financial condition of inShop.
(g) inShop will deliver such other lists, descriptions, information,
schedules, documents and reports as may reasonably be requested by
800America.
(h) To the best knowledge of inShop, there is no default or claim,
purported or alleged default, or statement of facts under which lack
of notice or the lapse of time, or both, would constitute a default on
any obligation to be performed by inShop under any material lease,
contract, plan or other arrangement.
(i) No suit, action or legal, administrative or arbitration proceeding,
which might materially and adversely affect the overall financial
condition, business or property of inShop is pending or, to the
knowledge of inShop, threatened.
(j) inShop has no knowledge of any tax liability or claim by any taxing
authority for due but unpaid taxes, interest or penalties, nor has
inShop been advised of any request or demand for audit by any taxing
authority.
(k) inShop owns or possesses, or reasonably believes it can acquire on
reasonable terms, adequate patent rights or other rights to use patent
rights, inventions, trademarks, service marks, trade names and
copyrights necessary to conduct the business now operated by it, and
inShop has not received any notice of infringement of or conflict with
asserted rights of others with respect to any patent, patent rights,
inventions, trademarks, service marks, trade names or copyrights
which, individually or in the aggregate, if subject of an unfavorable
decision, ruling or finding, could reasonably be expected to have a
material adverse effect upon the business, operations, properties,
assets or condition, financial or otherwise, of inShop.
(l) The representations and warranties of its shareholders and inShop
shall be as of the date of this Agreement and as of the Closing Date.
Any such representation made as of such dates shall survive the
Closing Date. Unless otherwise indicated, all representations and
warranties of inShop are based upon knowledge only of its officers and
directors and no one else.
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2 Representations and Warranties of the Stockholders.
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Each Stockholder, unless specifically stated other wise, individually
hereby represents and warrants, that the following are true and correct on the
date hereof:
2.1 No Liens or Encumbrances.
------------------------
None of the Notes or shares of common or preferred stock of inShop of such
Stockholder being acquired hereunder by 800America is subject to any lien,
security interest, charge, mortgage or other encumbrance of any kind or nature
and, when delivered to 800America at Closing, shall confer all ownership rights
previously enjoyed by such Stockholder to 800America.
2.2 Authorization of Agreement.
--------------------------
Such Stockholder has the authority to enter into this Agreement and to
perform its obligations hereunder (if a corporate or business entity type, such
Stockholder has received the requisite approval from its respective Board of
Directors or other governing body, as the case may be, necessary to authorize
the execution, delivery and performance of this Agreement).
2.3 Securities Act.
--------------
Each Stockholder receiving 800America Stock individually hereby represents
and warrants, that the following are true and correct on the date hereof:
(a) The Stockholder is an "Accredited Investor," as that term is defined
in Regulation D promulgated under the Securities Act of 1933 (the
"Securities Act") and is acquiring the 800America Stock without a view
to distribution thereof. The Stockholder understands that the
800America Stock has not been registered under the Securities Act. In
connection with any future resale of the 800America Stock, the
Stockholder understands that the 800America Stock may not be sold
directly or indirectly in the United States or any of its territories
or possessions or areas subject to its jurisdiction or to any person
who is a national, citizen or resident thereof or any person normally
resident therein or to any person for resale to any such person unless
the 800America Stock is sold in accordance with the provisions of Rule
144 or Regulation S promulgated under the Securities Act or is
registered under the Securities Act or another exemption from such
registration is available.
(b) The Stockholder acknowledges that the certificate representing the
800America Stock will bear a legend to the effect of the matters
mentioned in the preceding paragraph.
3 Representations and Warranties of 800America.
--------------------------------------------
800America hereby represents and warrants, that the following are true and
correct on the date hereof:
3.1 800America's Organization.
-------------------------
800America is a corporation duly organized, validly existing and in good
standing under the laws of the State of Nevada, and has full power and authority
to carry on its business as it is now being conducted and to own the properties
and assets it now owns.
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3.2 800America Subsidiaries.
-----------------------
800America has no subsidiaries nor does it own any securities of another
issuer, except for Fileshooter.com Inc. Fileshooter.com Inc. is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware, and has full power and authority to carry on its business as
it is now being conducted and to own the properties and assets it now owns.
3.3 800America's Capitalization.
---------------------------
800America has an authorized capital stock consisting of 50,000,000 shares
of common stock, $0.001 par value, of which 12,450,000 shares are issued and
outstanding and no shares are held in the treasury and 5,000,000 shares of
preferred stock, $0.001 par value, of which no shares are issued or held in
treasury. All such issued shares are validly issued, fully paid and
non-assessable.
3.4 Issuance of 800America Stock.
----------------------------
The shares of common stock of 800America which are to be issued and
delivered by 800America pursuant to the terms of this Agreement, when so issued
and delivered, will be duly and validly authorized and issued and will be fully
paid and non-assessable, and will not be subject to any preemptive right.
3.5 Financial Statements.
--------------------
800 America has delivered to inShop and the Stockholders its most recent
annual report, as filed with the Securities and Exchange Commission ("SEC"),
which includes the balance sheet of 800America as at December 31, 1999, and the
related statements of income and cash flow for the fiscal year then ended,
certified by Jack F. Burke, Jr., independent accountant. Said financial
statements are true and correct, have been prepared in accordance with generally
accepted accounting principles applied on a basis consistent with the preceding
year, and fairly present the financial condition of 800America as at December
31, 1999, and the results of operations thereof for the fiscal year then ended.
Since December 31, 1999, there has not been any material adverse change in the
business, assets, liabilities, results of operations or financial condition of
800America other than changes in the ordinary course of business, or any other
event or condition of any character directly, materially and adversely affecting
the property or business of 800America. The quarterly report of 800America, as
filed with the SEC, dated June 30, 2000, heretofore furnished by 800America to
inShop and the Stockholders fairly presents the results of operations for the
six month period ended June 30, 2000, subject to year-end audit and adjustments.
3.6 Litigation.
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Neither 800America nor its subsidiary is engaged in, or has any knowledge
that it is threatened with, any legal action or other proceeding before any
court, administrative agency or arbitrator, wherein an adverse determination
would materially and adversely affect the business, assets, liabilities, results
of operations or financial condition of 800America or its subsidiary. Neither
800America nor its subsidiary has been charged with, and is not to its knowledge
under investigation with respect to, any charge concerning any presently pending
material violation of any provisions of federal, state or local law or
administrative regulation in respect to its business.
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3.7 No Restriction.
--------------
800America is not subject to any charter, by-law, mortgage, lien, lease,
agreement, instrument, order, award, judgment, decree or any other restriction
of any kind or character which by its terms would interfere with or prevent the
consummation of the transactions contemplated by this Agreement, or which, as a
result of such consummation, would automatically, or with the giving of notice
or passage of time, or both have the effect of accelerating any lien or
encumbrance on any substantial portion of its assets or properties.
3.8 Securities Filings.
------------------
All filings made by 800America with the SEC are complete and correct in all
material respects.
3.9 Authorization.
-------------
This Agreement and the transactions contemplated hereby have been duly
authorized, executed and delivered on behalf of 800America and this Agreement
constitutes a legal, valid and binding obligation of 800America in accordance
with its terms.
4 Exchange of inShop's Stock and Related Transactions.
---------------------------------------------------
Subject to and in reliance upon the representations and warranties and
agreements of the Stockholders, inShop and 800America and subject to the terms
and conditions herein:
4.1 Exchange of inShop's Securities.
-------------------------------
The Stockholders agree to transfer, assign and deliver to 800America and
800America agrees to acquire from the Stockholders on the Closing Date all of
the Warrants, Notes and the issued and outstanding capital stock of inShop (the
"inShop Stock"), with the exception of a maximum of 400,000 shares of common
stock of inShop representing no more than five percent (5%) of the voting rights
of such class. In full consideration for the aforesaid transfer, assignment and
delivery, 800America agrees that on the Closing Date it will deliver to the
Stockholders, according to the Stockholder's instructions and in accordance with
the relative interests listed on Exhibit A, the 800America Stock with all
original issue taxes paid against delivery of certificates representing the
inShop Stock being acquired by 800America hereunder (duly endorsed for transfer
and with all necessary federal and state transfer taxes paid) and the sum of
five thousand dollars ($5,000).
4.2 Closing Date.
------------
The exchange of 800America Stock and inShop Stock hereunder shall be made
by 800America and the Stockholders at the offices of Sokolow, Dunaud, Mercadier
& Carreras LLP, 770 Lexington Avenue, 6th Floor, New York, New York 10021, at
11:30 a.m. on October __, 2000 (herein called the "Closing Date"), by
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(a) delivery of certificates of 800America Stock in such denominations and
registered in such names (subject to paragraph 4.1 above) as listed on
Exhibit A for the total number of shares of 800America Stock to be
delivered pursuant to paragraph 4.1 hereof; and
(b) delivery of certificates of inShop Stock endorsed in blank for the
total number of shares of inShop Stock to be delivered pursuant to
paragraph 4.1 hereof.
4.3 Full Disclosure.
---------------
Except for this Agreement, the Stockholders Agreement to be entered into
contemporaneously with this Agreement among 800America and the Stockholders, and
the Consulting Agreement between 800America and Veronique Bardach, each
Stockholder hereby represents and warrants to each other Stockholder that such
Stockholder has no oral or written agreement or understanding with 800America
relating to, resulting from or triggered by the acquisition by 800America of the
outstanding stock of inShop.
5 Additional Undertakings.
-----------------------
800America, inShop and the Stockholders further agree:
5.1 Access to Information.
---------------------
800America may, prior to the Closing Date, through its representatives,
make such investigation of the business, assets, liabilities, operations and
financial condition of inShop as 800America deems necessary or advisable to
familiarize itself therewith, which investigation shall not, however, affect the
Stockholders representations and warranties hereunder. inShop agrees to permit
800America and its authorized representatives to have, after the date of
execution hereof, full access to the premises and to all the books and records
of inShop without disrupting normal operations, and the officers of inShop will
furnish 800America with such financial and operating data and other information
with respect to the business, assets, liabilities and operations of inShop as
800America shall from time to time reasonably request, excluding any patent
applications and other proprietary information which inShop is restricted from
disclosing by reason of governmental security regulations or otherwise. inShop
agrees to deliver or make available to 800America copies of all contracts,
leases, agreements and understandings referred to in paragraph 1.3(d) and (g)
hereof, and not previously furnished to 800America pursuant thereto. In the
event the Closing hereunder does not take place, 800America and its
representatives shall keep confidential and shall not use any information
(unless already known to 800America or readily ascertainable from public or
published information or trade sources) obtained from inShop concerning its
business, assets, liabilities, operations and financial condition of inShop and
shall return to inShop any statements, documents or other written information
obtained from inShop in connection therewith.
5.2 No Broker.
---------
800America, inShop and the Stockholders each represents that it has, and they
have, not retained any broker or paid or agreed to pay any brokerage fee or
commission to any agent or broker for or on account of this Agreement except for
Goldsmith, Agio, Helms & Lynner, Ltd. and Ganguly & Co., each of which shall
receive as full payment of their compensation a portion of the 800America Stock
as listed on Exhibit A.
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5.3 Continuance of Business Relations.
---------------------------------
inShop will use its best efforts to keep available to inShop the services
of its present employees and to preserve for inShop the present relationship
with its suppliers, customers and others having business relations with it.
6 Conditions Precedent to 800America's Obligations.
------------------------------------------------
The obligations of 800America to acquire the inShop Stock to be conveyed
and transferred hereunder is subject to the satisfaction, or the waiver thereof
by 800America, on or prior to the Closing Date, of the following conditions:
6.1 Certified Resolutions and Documents.
-----------------------------------
inShop shall have furnished 800America with:
(a) certified copies of resolutions duly adopted by the Board of Directors
of inShop approving the execution and delivery to 800America of this
Agreement on behalf of inShop and authorizing all corporate action
necessary to enable inShop to comply with the terms of this Agreement;
and
(b) all other documents, certificates and other instruments required to be
furnished to 800America by inShop pursuant to the terms of this
Agreement.
6.2 Opinion of Counsel.
------------------
800America and the Stockholders shall have received a favorable opinion,
dated the Closing Date, of Sokolow, Dunaud, Mercadier & Carreras LLP, counsel
for inShop, in form and substance satisfactory to 800America and its counsel, to
the effect that:
(a) inShop is a corporation duly organized and validly existing under the
laws of the State of Delaware, has full corporate power to carry on
its business as then being conducted and is duly qualified as a
foreign corporation and in good standing in each jurisdiction, other
than the State of Delaware, in which the conduct of its business or
ownership of property requires such qualification; and
(b) the execution, delivery and performance of this Agreement by inShop
have been fully and validly authorized and approved by the Board of
Directors of inShop and this Agreement is valid and binding upon
inShop in accordance with its terms; and the execution, delivery and
performance of this Agreement on the part of inShop will not result in
the breach of any term or provision of, or constitute a default under,
the Certificate of Incorporation or By-laws of inShop, or any
indenture, mortgage, deed of trust or other agreement to which inShop
is a party; or cause any acceleration or maturity of any obligation or
loan to which inShop is a party.
6.3 No Change in Condition of inShop.
--------------------------------
Since the date hereof and to the Closing Date, there shall not have been:
(a) any change in inShop's business, assets, liabilities, results of
operations or financial condition other than in the ordinary course of
business, none of which has been materially adverse;
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(b) declared, set aside or paid any dividend on,
declared or made any distribution on,
authorized the creation or issuance of or issued,
authorized or effected any split-up or any other recapitalization of
any of its stock or
directly or indirectly redeemed, retired, purchased or otherwise
acquired any of its outstanding capital stock or agreed to take
any such action;
(c) any sale or any other disposition of assets of inShop other than in
the ordinary course of business of inShop;
(d) any damage, destruction or loss (whether or not covered by insurance)
materially and adversely affecting inShop's property or business; and
(e) any strike or other labor trouble; or any event or condition of any
character directly, materially and adversely affecting the business,
assets, liabilities, results of operation or financial condition of
inShop.
6.4 Restatement of Representations and Warranties and Performance of
Pre-Closing Undertakings.
----------------------------------------------------------------
The representations and warranties of inShop and the Stockholders contained
in this Agreement or otherwise made in writing in connection with the
transactions contemplated by this Agreement shall be true in all material
respects on and as of the Closing Date with the same effect (except as to
transactions contemplated herein and to changes occurring in the ordinary course
of business after the date hereof and not materially and adversely affecting the
business, assets, liabilities, results of operations or financial condition of
inShop) as if such representations and warranties had been made on and as of
such date, each and all of the agreements and conditions to be performed or
observed by inShop on or before the Closing Date pursuant to the terms hereof
shall have been duly performed or observed in all material respects and there
shall be delivered to 800America at the Closing a certificate to that effect
dated the Closing Date and executed by the President of inShop.
6.5 No Action to Enjoin Acquisition.
-------------------------------
No action, proceeding or investigation shall have been instituted or be
threatened to restrain or prohibit the acquisition by 800America or the transfer
by any Stockholder of the inShop Stock to be transferred in accordance with the
terms of this Agreement or to threaten to force divestiture thereafter.
6.6 Procurement of all inShop Stock.
-------------------------------
The Stockholders shall have procured the transfer, assignment and delivery
to 800America on the Closing Date, free and clear of all liens, pledges
mortgages or other encumbrances and of any restrictions on the transfer,
assignment and delivery, of all of the inShop Stock constituting on the Closing
Date all the issued and outstanding capital stock of inShop, with the exception
of a maximum of 400,000 shares of common stock of inShop representing no more
than five percent (5%) of the voting rights of such class.
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6.7 Stockholders Agreement.
----------------------
Each of the Stockholders shall have simultaneously with the execution of
this Agreement entered into a stockholders agreement.
7 Conditions Precedent to the Stockholders' Obligations.
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The obligation of the Stockholders to transfer, assign and deliver their
respective shares of inShop Stock and to acquire the 800America Stock to be
conveyed and transferred hereunder is subject to the satisfaction, or the waiver
thereof by the Stockholders on or prior to the Closing Date, of the following
conditions:
7.1 Opinion of Counsel.
------------------
800America shall have furnished the Stockholders with a favorable opinion,
dated the Closing Date, of Allen G. Reeves, Esq,. counsel for 800America, in
form and substance satisfactory to the Stockholders and their counsel to the
effect that:
(a) 800America is a corporation duly organized and validly existing and in
good standing under the laws of the State of Nevada, has full
corporate power to carry on its business as then being conducted and
is duly qualified as a foreign corporation and in good standing in
each jurisdiction in which the conduct of its business or ownership of
property requires such qualification;
(b) the execution, delivery and performance of this Agreement by
800America have been fully and validly authorized and approved by the
Board of Directors of 800America and this Agreement is valid and
binding upon 800America in accordance with its terms; and the
execution, delivery and performance of this Agreement on the part of
800America will not result in the breach of any term or provision of,
or constitute a default under, the Certificate of Incorporation or
By-laws of 800America, or any indenture, mortgage, deed of trust or
other agreement to which 800America is a party; or cause any
acceleration or maturity of any obligation or loan to which 800America
is a party; and
(c) the shares of 800America Stock which are to be issued pursuant to the
terms of this Agreement have been validly authorized and issued and
will, upon delivery to the Stockholders, constitute fully-paid and
non-assessable shares and no stockholder of 800America has or will
have any preemptive right to subscription or purchase in respect
thereof.
7.2 Certified Resolutions.
---------------------
800America shall have furnished the Stockholders and inShop with:
(a) certified copies of resolutions duly adopted by the Board of Directors
of 800America approving the execution and delivery of this Agreement,
authorizing the acquisition of the inShop Stock in exchange for the
800America Stock and authorizing all corporate action necessary to
enable 800America to comply with the terms of this Agreement; and
(b) all other documents, certificates and other instruments required to be
furnished by 800America pursuant to the terms of this Agreement.
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7.3 Restatement of Representations and Warranties and Performance of
Pre-Closing Undertakings.
----------------------------------------------------------------
The representations and warranties of 800America contained in this
Agreement or otherwise made in writing in connection with the transactions
contemplated by this Agreement shall be true in all material respects on and as
of the Closing Date with the same effect (except as to transactions contemplated
herein and to changes occurring in the ordinary course of business after the
date hereof and not materially and adversely affecting the business, assets,
liabilities, results of operations or financial condition of 800America) as if
such representations and warranties had been made on and as of such date, each
and all of the agreements and conditions to be performed or observed by
800America on or before the Closing Date pursuant to the terms hereof shall have
been duly performed or observed in all material respects and there shall be
delivered to the Stockholders and inShop at the Closing a certificate to that
effect dated the Closing Date and executed by the President and the Secretary of
800America.
7.4 No Action to Enjoin Acquisition.
-------------------------------
No action, proceeding or investigation shall have been instituted or be
threatened to restrain or prohibit the acquisition by 800America or the transfer
by any Stockholder of the inShop Stock to be transferred in accordance with the
terms of this Agreement or to threaten to force divestiture thereafter.
7.5 Stockholders Agreement.
----------------------
800America and each of the Stockholders shall have simultaneously with the
execution of this Agreement entered into a stockholders agreement.
8 Notices.
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Any notice herein required or permitted to be given shall be in writing and
may be sent by hand delivery, facsimile, email or registered or certified mail,
return receipt requested, and shall be deemed to have been given: if by hand
delivery, on the date of delivery; if by facsimile or email, on the business day
after transmission thereof to the proper facsimile number or email address; or
if mailed, on the date indicated as the date of delivery on the return receipt
or the date of attempted delivery if refused. For purposes hereof, the addresses
of the parties hereto (until notice of a change thereof is given as provided in
this Section 8) shall be as follows:
To 800America: With a copy to:
800America.com, Inc Allen G. Reeves, P.C.
1929 So. 21st Avenue 900 Equitable Building
Nashville, TN 37212 730 17th Street
Attention: Mr. Elie Rabi Denver, CO 80202
Attention: Allen Reeves, Esq.
Facsimile:
Email: Facsimile: 303-796-7566
Email: [email protected]
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To inShop: With a copy to:
inShop.com Inc. Sokolow, Dunaud, Mercadier & Carreras
LLP
655 Avenue of the Americas 770 Lexington Avenue, Sixth Floor
New York, NY 10010 New York, NY 10021
Attention: Ms. Veronique Bardach Attention: Robert Miklautsch, Esq.
Facsimile: 212-271-6372 Facsimile: 212-935-4865
Email: [email protected] Email: [email protected]
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To the Stockholders: With a copy to:
Lazard Technology Partners LP Hudson Venture Partners, LP
30 Rockefeller Plaza, 61st Floor 660 Madison Avenue
New York, NY 10020 New York, NY 10021
Attention: Mr. Gene Lowe Attention: Mr. Doug Chertok
Facsimile: 212-656-1663 Facsimile: 212-644-7430
Email: [email protected] Email: [email protected]
---------------------- ----------------------
9 Expenses of Counsel and Others.
------------------------------
800America and inShop shall bear individually the expense of their legal
counsel, brokers and other advisers, if any, and all other costs related to the
negotiation and consummation of this Agreement incurred by it, except as
mentioned in paragraph 5.2.
10 Amendments.
----------
This Agreement may be amended or modified only by a written instrument
executed by the parties hereto, acting in the case of corporations by their
respective officers thereunto duly authorized by their respective Boards of
Directors.
11 Termination.
-----------
This Agreement may be terminated at any time prior to the Closing Date
whether before or after action by 800America, inShop or the Stockholders:
(a) by mutual consent of the Board of Directors of 800America and inShop;
or
(b) by the Board of Directors of 800America or the Board of Directors of
inShop, if
(i) any representation or warranty made herein by the other
corporation or by the Stockholders (in the case of a termination
by 800America) jointly or severally, or any financial statement,
certificate, document or information (written or oral) by one
corporation to the other or by the Stockholders to 800America (in
the case of a termination by 800America) or by 800America to the
Stockholders (in the case of a termination by inShop) pursuant
hereto or in connection with the transactions contemplated herein
is untrue in any material respect or contains any untrue
statement of a material fact or omits to state a material fact
necessary to make the statements contained therein not
misleading, all as of the date hereof or, except as contemplated
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<PAGE>
herein, as of any subsequent date as if made or furnished at and
as such subsequent date or any party hereto shall have failed to
perform all of the obligations undertaken by it herein; or
(ii) there shall exist any pending or threatened litigation or
investigation pertaining to the transactions;
(c) by the Board of Directors of 800America if one hundred percent (100%)
of the inShop Stock is not available for transfer, assignment and
delivery to 800America on the Closing Date;
(d) by any party if the conditions precedent to Closing by the party have
not been performed or waived on the Closing Date;
(e) by any party if the Closing contemplated by this Agreement shall not
have taken place prior to October 30, 2000.
If for any reason the acquisition contemplated by this Agreement is not
consummated and this Agreement is terminated, each party shall bear the expense
incurred by it in connection with the proposed acquisition with the exception
that 800America will be responsible for the legal expenses incurred by the
Stockholders.
12 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.
13 Counterparts.
------------
This Agreement may be executed simultaneously in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
14 Parties in Interest.
-------------------
This Agreement shall inure to the benefit of, and be binding upon, the
parties hereto and their respective successors.
15 Survival of Representations and Warranties.
------------------------------------------
The representations and warranties of the Stockholders and inShop shall be
as of the date of this Agreement and as of the Closing Date. Any such
representation made as of such dates shall survive the Closing Date. Unless
otherwise indicated, all representations and warranties of inShop are based upon
knowledge only of its officers and directors and no one else.
16 Governing Law.
-------------
This Agreement shall be construed and enforced in accordance with the laws
of United States and the State of New York (as applicable), without regard to
the rules governing conflict of laws.
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<PAGE>
17 Consent to Jurisdiction.
-----------------------
800America, inShop and the Stockholders agree to submit any claim, suit or
proceeding hereunder to the jurisdiction of the courts of the State of New York
located in New York County, and further consent to waive their right to trial by
jury in any such action.
18 Entire Agreement.
----------------
This Agreement, together with the other agreements referred to herein,
constitutes the entire agreement among the parties pertaining to the subject
matter hereof and supercedes all prior and contemporaneous agreements,
representations and understandings of the parties.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the day and year first above written.
800America.com, Inc inShop.com Inc.
By: /s/ Elie Rabi By: /s/ Veronique Bardach
----------------------------- --------------------------------
Name: Elie Rabi Name: Veronique Bardach
Title: President Title: Chief Executive Officer
----------------------------------- -------------------------------------
Robert Mashaal Frank Mori
New York Capital Partners FL Inc. Senvest International, LLC
By:
----------------------------- -------------------------------------
Name: Andrew Moses Name: Richard Mashaal
Title: Title: President
----------------------------------- -------------------------------------
Jeffrey Steiner Peter W. Williams
----------------------------------- -------------------------------------
Raffiq Nathoo Richard A. Dunn
-14-
<PAGE>
Lazard Freres & CO. LLC America Online, Inc.
By: By:
----------------------------- ----------------------------------
Name: Russell Planitzer Name:
Title: Managing Director Title:
Hudson Ventures Partners, L.P.
By:
----------------------------------- ----------------------------------
Anthony Dub Name: Jay N. Goldberg
Title: General Partner
Peekoport Two LLC
By:
------------------------------------- --------------------------------
Hendrik te Neues Name:
Title:
Sicor Holdings S.A.
By:
----------------------------- -------------------------------------
Name: Veronique Bardach
Title:
----------------------------------- -------------------------------------
Jacqueline Bardach Paulette Monserrat-Bonomo
----------------------------------- -------------------------------------
Cristina Melotti Rayya Hamza
----------------------------------- -------------------------------------
Steven S. Ullman Dann Moss
-15-
<PAGE>
Goldsmith-Agio-Helms & Lynner, Ltd.
By:
----------------------------------- ----------------------------------
Patrick Ghali Name: Roger Redmond
Title: Managing Director
Ganguly & Co. Ganguly Investment Group, LLC
By: By:
----------------------------- ---------------------------------
Name: Arun Ganguly Name: Arun Ganguly
Title: Title: Managing Member
-16-
