EXHIBIT B
AGREEMENT AND PLAN OF REORGANIZATION
AGREEMENT AND PLAN OF REORGANIZATION
BY AND AMONG
GLOBALNET INTERNATIONAL, INC.,
GN ACQUISITION CORP.
AND
RICH EARTH, INC.
DATED AS OF MARCH 22, 2000
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AGREEMENT AND PLAN OF REORGANIZATION
This AGREEMENT AND PLAN OF MERGER (the Agreement) is made and entered into
as of March 22, 2000 by and among Rich Earth, Inc., a Nevada corporation (Rich
Earth), GN Acquisition Corp., an Delaware corporation ("Merger Sub"), and
GlobalNet International, Inc., a Delaware corporation ("GLOBALNET").
The parties agree as follows:
1. THE MERGER.
1.1 The Merger. At the Effective Time (as defined in Section 1.2) and
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subject to and upon the terms and conditions of this Agreement, GLOBALNET shall
be merged into Merger Sub (the Merger), the separate corporate existence of
Merger Sub shall cease and GLOBALNET shall continue as the surviving
corporation. The surviving corporation after the Merger is hereinafter
sometimes referred to as the "Surviving Corporation" which shall be a
wholly-owned subsidiary of Rich Earth.
1.2 Effective Time. Unless this Agreement is earlier terminated
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pursuant to Section 8.1, the closing of the Merger (the "Closing") will take
place as promptly as practicable, but no later than two (2) business days
following satisfaction or waiver of the conditions set forth in Section 6, via
facsimile or at the offices of Venture Law Corporation, Suite 618, 688 West
Hastings Street, Vancouver, British Columbia, Canada, V6B 1P1, unless another
place or time is agreed to in writing by Rich Earth and GLOBALNET. The date
upon which the Closing actually occurs is herein referred to as the "Closing
Date." On the Closing Date, the parties hereto shall cause the Merger to be
consummated by filing Articles of Merger (or like instrument) in the form
attached hereto as Exhibit A with the Secretary of State of the State of
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Delaware (the "Merger Articles"), in accordance with the applicable provisions
of Delaware law (the later time of acceptance by the Secretary of State of the
State of Delaware of such filing being referred to herein as the "Effective
Time").
1.3 Effect of the Merger. At the Effective Time, the effect of the
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Merger shall be as provided in the applicable provisions of Delaware law.
Without limiting the generality of the foregoing, and subject thereto, at the
Effective Time, all the property, rights, privileges, powers and franchises of
GLOBALNET and Merger Sub shall vest in the Surviving Corporation, and all debts,
liabilities and duties of GLOBALNET and Merger Sub shall become the debts,
liabilities and duties of the Surviving Corporation.
1.4 Articles of Incorporation, Bylaws. The Certificate of
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Incorporation and Bylaws of Surviving Corporation shall be the Certificate of
Incorporation and Bylaws of GLOBALNET.
1.5 Directors and Officers. Directors of Rich Earth and the Surviving
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Corporation immediately after the Effective Time shall consist of eleven
members. Nine nominee directors selected by Robert Donahue and two nominees
selected by Myron Gushlak, each director to hold the office in accordance with
the provisions of applicable laws and the Bylaws of Rich Earth and the Surviving
Corporation, as applicable, until their successors are duly qualified and
elected. The directors and officers of Rich Earth immediately after the
Effective Time shall be the same as the Surviving Corporation except as changed
by Robert Donahue, President and C.E.O., each to hold office in accordance with
the provisions of the Bylaws of Rich Earth and the Surviving Corporation, as
applicable, on conversion as provided for in the succeeding paragraph.
1.6 Conversion of GLOBALNET and Merger Sub Common Stock.
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(a) At the Effective Time, each share of GLOBALNET Common Stock,
par value $ 0.001 per share ("GLOBALNET Common Stock"), upon the terms and
subject to the conditions set forth below shall be converted automatically into
10,000 shares (the "Exchange Ratio") of Rich Earth Common Stock par value $0.001
per share ("Rich Earth Common Stock") for an aggregate amount of 20,000,000
shares of Rich Earth Common Stock. Accordingly, at the Effective Time, the
Shareholders of GLOBALNET will hold approximately 67% of the issued shares of
the Rich Earth Common Stock in the Rich Earth without taking into account the
issuance of 600,000 shares of Rich Earth Common Stock in accordance with Section
5.1 below. At the Effective Time, each share of the common stock of Merger Sub
issued and outstanding immediately prior to the Effective Time shall be
converted into and exchanged for one validly issued, fully paid and
non-assessable share of common stock of the Surviving Corporation.
(b) The Exchange Ratio shall be adjusted to reflect fully the
effect of any stock split, reverse split, stock dividend (including any dividend
or distribution of securities convertible into GLOBALNET Common Stock or Rich
Earth Common Stock), reorganization, recapitalization or other like charge with
respect to GLOBALNET Common Stock or Rich Earth Common Stock occurring after the
date hereof.
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(c) No fractional share of GLOBALNET Common Stock shall be issued
in the Merger. In lieu thereof, any fractional share shall be rounded up to the
nearest whole share of GLOBALNET Common Stock.
1.7 Surrender of Certificates.
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(a) Exchange Agent. The Venture Law Corporation of Vancouver,
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British Columbia, Canada shall serve as exchange agent (the "Exchange Agent") in
the Merger.
(b) GLOBALNET to Provide Common Stock. Promptly after the
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Effective Time, GLOBALNET shall make available to the Exchange Agent for
exchange in accordance with this Section, the shares of GLOBALNET Common Stock
convertible pursuant to Section 1.6(a) in exchange for shares of Rich Earth
Common Stock.
(c) Exchange Procedures. On or after the Closing Date, the
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holders of GLOBALNET Common Stock will surrender the certificates representing
their GLOBALNET Common Stock (the "GLOBALNET Stock Certificate") to the Exchange
Agent for cancellation together with a letter of transmittal in such form and
having such provisions that the Exchange Agent reasonably requests. Promptly
following the Effective Time, Exchange Agent will cause to be issued
stockholders certificates for the number of shares of Rich Earth Common Stock to
which such stockholders are entitled pursuant to Section 1.6.
(d) Transfers of Ownership. If any certificate for shares of Rich
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Earth Common Stock is to be issued in a name other than that in which the
certificate surrendered in exchange therefor is registered or if any cash is to
be delivered to a person other than the person whose name is on the certificate
surrendered, it will be a condition to the issuance and/or delivery thereof that
the certificate so surrendered will be properly endorsed and otherwise in proper
form for transfer and that the person requesting such exchange will have paid to
GLOBALNET or any agent designated by it any transfer or other taxes required by
reason or the issuance of a certificate for shares of Rich Earth Common Stock or
the delivery of any cash in any name other than that of the registered holder of
the certificate surrendered, or established to the satisfaction of the Exchange
Agent or any agent designated by it that such tax has been paid or is not
payable. Rich Earth and the Transfer Agent acknowledge and agree that Robert
Donahue shall designate prior to the Effective Time such persons and respective
amounts of Rich Earth Common Stock set forth in Section 5.16 hereof.
(e) No Liability. Notwithstanding anything to the contrary in
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this Section 1.7, none of the Exchange Agent, the Surviving Corporation or any
party hereto shall be liable to a holder of shares of Rich Earth Common Stock or
GLOBALNET Common Stock for any amount properly paid to a public official
pursuant to any applicable abandoned property, escheat or similar law.
1.8 No Further Ownership Rights in GLOBALNET Common Stock. All shares
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of Rich Earth Common Stock issued upon the surrender for exchange of shares of
GLOBALNET Common Stock in accordance with the terms hereof, and any cash paid in
respect thereof, shall be deemed to be full satisfaction of all rights
pertaining to such shares of GLOBALNET Common Stock, and there shall be no
further registration of transfers on the records of Rich Earth of shares of
GLOBALNET Common Stock which were outstanding immediately prior to the Effective
Time. If, after the Effective Time, GLOBALNET Stock Certificates are presented
to Rich Earth for any reason, they shall be canceled and exchanged as provided
in this Section 1.
1.9 Lost, Stolen or Destroyed Certificates. In the event any
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certificates evidencing shares of GLOBALNET Common Stock shall have been lost,
stolen or destroyed, the Exchange Agent shall issue in exchange for such lost,
stolen or destroyed certificates, upon the making of an affidavit of that fact
by the holder thereof, such amount, if any, as may be required pursuant to
Section 1.6; provided, however, that the Exchange Agent may, in its discretion
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and as a condition precedent to the issuance thereof, require the owner of such
lost, stolen or destroyed certificates to deliver an indemnity in such sum as it
may reasonably direct against any claim that may be made against Rich Earth or
the Exchange Agent with respect to the certificates alleged to have been lost,
stolen or destroyed.
1.10 Tax Consequences. It is intended by the parties hereto that the
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Merger will constitute a reorganization within the meaning of Section 368 of the
Internal Revenue Code of 1986, as amended. Each party has consulted with its
own tax advisors with respect to the tax consequences of the Merger.
1.11 Taking of Necessary Action; Further Action. If, at any time after
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the Effective Time, any such further action is necessary or desirable to carry
out the purposes of this Agreement and to vest the Surviving Corporation with
full right, title and possession to all assets, property, rights, privileges,
powers and franchises of GLOBALNET, the officers and directors of GLOBALNET,
Merger Sub and Rich Earth are fully authorized in the name of their respective
corporations or otherwise to take, and will take, all such lawful and necessary
action.
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2.0 REPRESENTATIONS AND WARRANTIES OF RICH EARTH AND MERGER SUB
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Rich Earth and Merger Sub represent and warrant to GLOBALNET, subject to such
exceptions as are specifically disclosed in the Rich Earth Disclosure Schedule
(referencing the appropriate Section and paragraph numbers) supplied by Rich
Earth to GLOBALNET (the "Rich Earth Disclosure Schedule") and dated as of the
date hereof, as follows:
2.1 Organization of Rich Earth and Merger Sub. Rich Earth is a
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corporation duly organized, validly existing and in good standing under the laws
of the State of Nevada. Merger Sub is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware. Rich
Earth and Merger Sub each has the corporate power to own its properties and to
carry on its business. Rich Earth and Merger Sub has each delivered a true and
correct copy of its Articles of Incorporation and Bylaws and the Certificate of
Incorporation and Bylaws, each as amended to date, to GLOBALNET. Xenios
Xenopoulous is the sole director and officer of Rich Earth. Rich Earth has never
conducted any operations.
2.2 Authority. Rich Earth and Merger Sub each has all requisite
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corporate power and authority to enter into this Agreement and the Related
Agreements (as defined below) and to consummate the transactions contemplated
hereby and thereby. The execution and delivery of this Agreement and the
Related Agreements and the consummation of the transactions contemplated hereby
and thereby have been duly authorized by all necessary corporate action on the
part of Rich Earth and Merger Sub except that the Merger must be approved by the
stockholders of Rich Earth. This Agreement has been duly executed and delivered
by Rich Earth and Merger Sub and constitutes, and the Related Agreements, when
duly executed and delivered by Rich Earth and Merger Sub, will constitute the
valid and binding obligations of each party, enforceable in accordance with
their terms, except as such enforceability may be limited by principles of
public policy and subject to the laws of general application relating to
bankruptcy, insolvency and the relief of debtors and rules of law governing
specific performance, injunctive relief or other equitable remedies. The
"Related Agreements" shall mean all such ancillary agreements required in this
Agreement to be executed and delivered in connection with the transactions
contemplated hereby.
2.3 Capital Structure of Rich Earth.
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(a) The authorized capital stock of Rich Earth consists of
100,000,000 shares of authorized Common Stock, par value $0.001 per share, of
which 9,960,000 shares are issued and outstanding and an additional 20,000,000
shares will be issued and outstanding at the Closing which shall exclude the
600,000 shares to be issued under Section 2.3(b) below. The authorized capital
stock of Merger Sub consists of 1,000 shares of authorized Common Stock, no par
value, of which 100 shares are issued and outstanding in favor of Rich Earth.
All outstanding shares of Rich Earth Common Stock are duly authorized, validly
issued, fully paid and non-assessable and not subject to preemptive rights
created by statute, the Articles of Incorporation or Bylaws of Rich Earth or any
agreement to which Rich Earth is a party or by which it is bound and have been
issued in compliance with federal and state securities laws. Rich Earth has no
other capital stock authorized, issued or outstanding.
(b) Rich Earth has arranged a private placement of 600,000 units
at a price of $10.00 per unit for an aggregate amount of US$ 6,000,000 with two
purchasers. The $6,000,000 shall be raised prior to the Closing and be
available as cash to Rich Earth prior to Closing. Each "Unit" consists of one
share in the common stock of the Company and one share purchase warrant
("Warrant") with each Warrant entitling the holder to purchase one common share
in the Company for US$ 15.00 per share at any time on or before six months from
the date of the acquisition of the Units by the Purchasers. No Units have yet
been sold. Rich Earth may conduct another private placement of Units with the
consent of GLOBALNET prior to the Closing of this Merger in accordance with
Section 4.2. Except for the Rich Earth Warrants, there are no options,
warrants, calls, rights, commitments or agreements of any character, written or
oral, to which Rich Earth or any of its shareholders is a party or by which Rich
Earth or any of its shareholders is bound obligating Rich Earth or any of its
shareholders to issue, deliver, sell, repurchase or redeem, or cause to be
issued, delivered, sold, repurchased or redeemed, any shares of the capital
stock of Rich Earth or obligating Rich Earth to grant, extend, accelerate the
vesting of, change the price of, otherwise amend or enter into any such option
warrant, call, right, commitment or agreement. There are no outstanding or
authorized stock appreciation, phantom stock, profit participation, or other
similar rights with respect to Rich Earth. There are no voting trusts, proxies,
or other agreements or understandings with respect to the voting stock of Rich
Earth.
(c) The Rich Earth Common Stock has been duly approved for
quotation on the NASD OTC Bulletin Board. Rich Earth has filed all forms,
reports, exhibits and other documents required to be filed with the Securities
and Exchange Commission under the Securities Act of 1933, the Securities
Exchange Act of 1934 and the rules and regulations promulgated thereunder. Rich
Earth shall have filed its annual report on Form 10-KSB for the year ended
December 31, 1999 with the Securities and Exchange Commission no later than the
earlier of such date as required under the regulations promulgated under the
Securities Exchange Act of 1934, as amended, or within ten days of the Effective
Date.
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2.4 Subsidiaries. Except for Merger Sub, Rich Earth does not have, and
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has never had, any subsidiaries or affiliated companies and does not otherwise
own, and has not otherwise owned, any shares in the capital of or any interest
in, or control, directly or indirectly, any other corporation, partnership,
association, joint venture or other business entity. Rich Earth owns all of the
issued and outstanding capital stock of Merger Sub.
2.5 Conflict. The execution and delivery of this Agreement and any
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Related Agreements to which it is a party by Rich Earth and Merger Sub do not,
and, the consummation of the transactions contemplated hereby and thereby will
not, conflict with, or result in any violation of, or default under (with or
without notice or lapse of time, or both), or give rise to a right of
termination, cancellation, modification or acceleration of any obligation or
loss of any benefit under (any such event, a "Conflict") (i) any provision of
the Articles of Incorporation and Bylaws of Rich Earth or Merger Sub, (ii) any
mortgage, indenture, lease, contract or other agreement or instrument, permit,
concession, franchise or license to which Rich Earth, Merger Sub or any of their
properties or assets are subject, or (iii) any judgment, order, decree, statute,
law, ordinance, rule or regulation applicable to Rich Earth, Merger Sub or their
respective properties or assets.
2.6 Consents. No consent, waiver, approval, order or authorization of,
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or registration, declaration or filing with, any court, administrative agency or
commission or other federal, state, county, local or other foreign governmental
authority, instrumentality, agency or commission ("Governmental Entity") or any
third party, including a party to any agreement with Rich Earth or Merger Sub
(so as not to trigger any Conflict), is required by or with respect to Rich
Earth or Merger Sub in connection with the execution and delivery of this
Agreement and any Related Agreements to which Rich Earth or Merger Sub is a
party or the consummation of the transactions contemplated hereby and thereby,
except for (i) such consents, waivers, approvals, orders, authorizations,
registrations, declarations and filings as may be required under applicable
securities laws thereby, and (ii) the filing of the Merger Articles with the
Secretary of State of the Delaware.
2.7 Rich Earth Financial Statements. Rich Earth has provided GLOBALNET
--------------------------------
with a copy of its audited balance sheets as of June 30, 1999, December 31, 1998
and December 31, 1997 and the related audited statements of operations,
stockholders' equity and cash flow for the periods then ended (the "Audited
Financials"). The Audited Financials are correct in all material respects and
have been prepared in accordance with GAAP applied on a basis consistent
throughout the periods indicated and consistent with each other. The Audited
Financials present fairly the financial condition, operating results and cash
flows of Rich Earth as of the dates and during the periods indicated therein.
The audited financial statements for the period ended December 31, 1999 will be
substantially the same in all respects as the audited financial statements for
the period ended June 30, 1999 except for any changes as a result of entering
into this Agreement, the transactions contemplated hereby and the transactions
referenced in Section 5.0 hereof
2.8 No Undisclosed Liabilities. Rich Earth and Merger Sub do not have
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any liability, indebtedness, obligation, expense, claim, deficiency, guaranty or
endorsement of any type, whether accrued, absolute, contingent, matured,
unmatured or other (whether or not required to be reflected in financial
statements in accordance with GAAP).
2.9 No Changes. Since inception of Rich Earth and Merger Sub, there
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has not been, occurred or arisen any:
(a) transaction, commitment or obligation by Rich Earth or Merger
Sub of any kind other than the stock and warrant issuances described in
paragraph (b) hereof;
(b) issuance or sale, or contract to issue or sell, by Rich Earth
of any shares of Rich Earth Common Stock, by Merger Sub of any of its capital
stock or securities exchangeable, convertible or exercisable therefor, or any
securities, warrants, options or rights to purchase any of the foregoing, except
for the issuance of Units and underlying shares of Rich Earth Common Stock and
the issuance of the Rich Earth Warrants previously disclosed in paragraph
2.3(b);
(c) negotiation or agreement by Rich Earth or Merger Sub or any
officer or employees thereof to do any of the things described in the preceding
clauses (a) or (b) (other than negotiations with GLOBALNET and its
representatives regarding the transactions contemplated by this Agreement and
the disclosed private placement offering).
2.10 Restrictions on Business Activities. There is no agreement
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(noncompete or otherwise), commitment, judgment, injunction, order or decree to
which Rich Earth or Merger Sub is a party or otherwise binding upon Rich Earth
which has or may have the effect of prohibiting or impairing any business
practice of Rich Earth, Merger Sub or the Surviving Corporation, any acquisition
of property (tangible or intangible) by Rich Earth, Merger Sub or the Surviving
Corporation or the conduct of business by Rich Earth, Merger Sub or the
Surviving Corporation.
2.11 Agreements, Contracts and Commitments. Rich Earth and Merger Sub
--------------------------------------
are not a party to nor are they bound by any contracts, obligations or
agreements of any kind except for this Agreement. (collectively a "Contract").
2.12 Litigation. There is no action, suit or proceeding of any nature
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pending, or, to Rich Earth's knowledge, threatened, against Rich Earth or Merger
Sub, their properties or any of its officers or directors, nor, to the knowledge
of Rich Earth, is there any reasonable basis therefor. There is no
investigation pending or, to Rich Earth's knowledge threatened, against Rich
Earth or Merger Sub, their properties or any of its officers or directors (nor,
to the best knowledge of Rich Earth, is there any reasonable basis therefor) by
or before any Governmental Entity. No Governmental Entity has at any time
challenged or questioned the legal right of Rich Earth or Merger Sub to conduct
its operations as presently or previously conducted.
2.13 Minute Books. The minutes of Rich Earth delivered to counsel for
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GLOBALNET are the only minutes of Rich Earth and contain a reasonably accurate
summary of all meetings of the Board of Directors (or committees thereof) of
Rich Earth and its shareholders or actions by written consent since the time of
incorporation of Rich Earth.
2.14 Broker's and Finder's Fees: Third Party Expenses. Rich Earth and
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Merger Sub have not incurred, nor will they incur, directly or indirectly, any
liability for brokerage or finders' fees or agents' commissions or any similar
charges in connection with the Agreement or any transaction contemplated hereby.
2.15 Compliance with Laws. Rich Earth and Merger Sub have complied
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with, are not in violation of, and have not received any notices of violation
with respect to, any foreign, federal, state or local statute, law or
regulation.
2.16 Complete Copies of Materials. Rich Earth has delivered or made
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available true and complete copies of each document (or summaries of same) that
has been requested by GLOBALNET or its counsel.
2.17 Representations Complete. None of the representations or
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warranties made by Rich Earth or Merger Sub (as modified by the Rich Earth
Disclosure Schedule), nor any statement made in any Schedule or certificate
furnished by Rich Earth pursuant to this Agreement or finished in or in
connection with documents mailed or delivered to the shareholders of Rich Earth
for use in soliciting their consent to this Agreement and the Merger contains or
will contain at the Effective Time, any untrue statement of a material fact, or
omits or will omit at the Effective Time to state any material fact necessary in
order to make the statements contained herein or therein, in the light of the
circumstances under which made, not misleading.
3.0 REPRESENTATIONS AND WARRANTIES OF GLOBALNET.
GLOBALNET and its subsidiaries represents and warrants to Rich Earth, subject to
such exceptions as are specifically disclosed in the GLOBALNET Disclosure
Schedule (referencing the appropriate Section and paragraph numbers) supplied by
GLOBALNET to Rich Earth (the "GLOBALNET Disclosure Schedule") and dated as of
the date hereof, as follows (for purposes of this Section 3.0 references to
GLOBALNET shall include its subsidiaries when appropriate under the
circumstances):
3.1 Organization of GLOBALNET. GLOBALNET is a corporation duly
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organized, validly existing and in good standing under the laws of the State of
Delaware. GlobalNet's subsidiaries are limited liability companies organized,
validly existing and in good standing under the laws of the State of Illinois.
GLOBALNET has the corporate power to own its properties and to carry on its
business as now being conducted and is duly qualified to do business and is in
good standing in each jurisdiction in which the failure to be so qualified would
have a material adverse effect on the ability of GLOBALNET to consummate the
transactions contemplated hereby. GLOBALNET has delivered a true and correct
copy of its Articles of Incorporation and Bylaws and the Certificate of
Incorporation and Bylaws, each as amended to date, to Rich Earth.
3.2 Authority. GLOBALNET has all requisite corporate power and
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authority to enter into this Agreement and the Related Agreements and to
consummate the transactions contemplated hereby and thereby. The execution and
delivery of this Agreement and the Related Agreements and the consummation of
the transactions contemplated hereby and thereby have been duly authorized by
all necessary corporate action on the part of GLOBALNET except that the Merger
must be approved by the stockholders of GLOBALNET. This Agreement has been duly
executed and delivered by GLOBALNET and constitutes, and the Related Agreements,
when duly executed and delivered by GLOBALNET, will constitute the valid and
binding obligations of GLOBALNET, enforceable in accordance with their terms,
except as such enforceability may be limited by principles of public policy and
subject to the laws of general application relating to bankruptcy, insolvency
and the relief of debtors and rules of law governing specific performance,
injunctive relief or other equitable remedies.
3.3 Capital Structure of GLOBALNET.
---------------------------------
(a) The authorized stock of GLOBALNET consists of 2,000 shares of
Common Stock, $ 0.001 par value, of which 2,000 shares are issued and
outstanding. All outstanding shares of GLOBALNET Common Stock are duly
authorized, validly issued, fully paid and non-assessable and not subject to
preemptive rights created by statute, the Articles of Incorporation or Bylaws of
GLOBALNET or any agreement to which GLOBALNET is a party or by which it is bound
and have been issued in compliance with federal and state securities laws.
GLOBALNET has no other capital stock authorized, issued or outstanding.
(b) There are no options, warrants, calls, rights, commitments or
agreements of any character, written or oral, to which GLOBALNET or any of its
stockholders is a party or by which GLOBALNET or any of its stockholders is
bound obligating GLOBALNET or any of its stockholders to issue, deliver, sell,
repurchase or redeem, or cause to be issued, delivered, sold, repurchased or
redeemed, any shares of the capital stock of GLOBALNET. There are no
outstanding or authorized stock appreciation, phantom stock, profit
participation, or other similar rights with respect to GLOBALNET. There are no
voting trusts, proxies, or other agreements or understandings with respect to
the voting stock of GLOBALNET.
3.4 Subsidiaries. Except for its wholly owned subsidiary DTA
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Communications Network, LLC, an Illinois limited liability company, which, at
closing, is expected to own all of the membership interests of GlobalNet, LLC,
an Illinois limited liability company, GLOBALNET does not have, and has never
had, any subsidiaries or affiliated companies and does not otherwise own, and
has not otherwise owned, any shares in the capital of or any interest in, or
control, directly or indirectly, any other corporation, partnership,
association, joint venture or other business entity.
3.5 Conflict. The execution and delivery of this Agreement and any
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Related Agreements to which it is a party by GLOBALNET do not, and, the
consummation of the transactions contemplated hereby and thereby will not,
conflict with, or result in any violation of, or default under (with or without
notice or lapse of time, or both), or give rise to a right of termination,
cancellation, modification or acceleration of any obligation or loss of any
benefit under (any such event, a "Conflict") (i) any provision of the Articles
of Incorporation and Bylaws of GLOBALNET, (ii) any mortgage, indenture, lease,
contract or other agreement or instrument, permit, concession, franchise or
license to which GLOBALNET or any of its properties or assets are subject, or
(iii) any judgment, order, decree, statute, law, ordinance, rule or regulation
applicable to GLOBALNET or its properties or assets.
3.6 Consents. No consent, waiver, approval, order or authorization of,
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or registration, declaration or filing with, any court, administrative agency or
commission or other federal, state, county, local or other foreign governmental
authority, instrumentality, agency or commission ("Governmental Entity") or any
third party, including a party to any agreement with GLOBALNET (so as not to
trigger any Conflict), is required by or with respect to GLOBALNET in connection
with the execution and delivery of this Agreement and any Related Agreements to
which GLOBALNET is a party or the consummation of the transactions contemplated
hereby and thereby, except for (i) such consents, waivers, approvals, orders,
authorizations, registrations, declarations and filings as may be required under
applicable securities laws thereby, and (ii) the filing of the Merger Articles
with the Secretary of State of the Delaware.
3.7 GLOBALNET Financial Statements. GLOBALNET has furnished Rich Earth
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with a true and complete copy of its unaudited December 31, 1999 financials
statements (the "GLOBALNET Financials"). The GLOBALNET Financials present
fairly the financial condition of GLOBALNET as of the date indicated therein,
subject, to year-end adjustments.
3.8 No Undisclosed Liabilities. Except as disclosed in the GLOBALNET
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Financials, GLOBALNET does not have any liability, indebtedness, obligation,
expense, claim, deficiency, guaranty or endorsement of any type, whether
accrued, absolute, contingent, matured, un-matured or other (whether or not
required to be reflected in financial statements in accordance with GAAP).
3.9 Restrictions on Business Activities. Other than license and other
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restrictions included in agreements entered into in the ordinary course of
business, there is no agreement (non-compete or otherwise), commitment,
judgment, injunction, order or decree to which GLOBALNET is a party or otherwise
binding upon GLOBALNET which has or may have the effect of prohibiting or
impairing any business practice of GLOBALNET or the Surviving Corporation, any
acquisition of property (tangible or intangible) by GLOBALNET or the Surviving
Corporation or the conduct of business by GLOBALNET or the Surviving
Corporation.
3.10 Agreements, Contracts and Commitments. GLOBALNET is in compliance
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with and has not breached, violated or defaulted under, or received notice that
it has breached, violated or defaulted under, any of the terms or conditions of
any agreement, contract, covenant, instrument, lease, license or commitment to
which GLOBALNET is a party or by which it is bound (collectively a "Contract"),
nor is GLOBALNET aware of any event that would constitute such a breach,
violation or default with the lapse of time, giving of notice or both. GLOBALNET
has obtained, or will obtain prior to the Closing Date, all necessary consents,
waivers and approvals as are required in connection with the Merger.
3.11 Litigation. There is no action, suit or proceeding of any nature
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pending, or, to GLOBALNET's knowledge, threatened, against GLOBALNET, its
properties or any of its officers or directors, nor, to the knowledge of
GLOBALNET, is there any reasonable basis therefor. There is no investigation
pending or, to GLOBALNET's knowledge threatened, against GLOBALNET, its
properties or any of its officers or directors (nor, to the best knowledge of
GLOBALNET, is there any reasonable basis therefor) by or before any Governmental
Entity. No Governmental Entity has at any time challenged or questioned the
legal right of GLOBALNET to conduct its operations as presently or previously
conducted.
3.12 Minute Books. The minutes of GLOBALNET made available to counsel
-------------
for Rich Earth are the only minutes of GLOBALNET and contain a reasonably
accurate summary of all meetings of the Board of Directors (or committees
thereof) of GLOBALNET and its shareholders or actions by written consent since
the time of incorporation of GLOBALNET.
3.13 Broker's and Finder's Fees: Third Party Expenses. Except for an
---------------------------------------------------
agreement dated October 6, 1999 between GLOBALNET and Patrick Kealy, GLOBALNET
has not incurred, nor will it incur, directly or indirectly, any liability for
brokerage or finder's fees or agents' commissions or any similar charges in
connection with the Agreement or any transaction contemplated hereby.
3.14 Compliance with Laws. GLOBALNET has complied with in all material
--------------------
respects, is not in violation of, and has not received any notices of violation
with respect to, any foreign, federal, state or local statute, law or
regulation.
3.15 Complete Copies of Materials. GLOBALNET has delivered or made
-------------------------------
available true and complete copies of each document (or summaries of same) that
has been requested by Rich Earth or its counsel.
3.16 Representations Complete. None of the representations or
-------------------------
warranties made by GLOBALNET (as modified by the GLOBALNET Disclosure Schedule),
nor any statement made in any Schedule or certificate furnished by GLOBALNET
pursuant to this Agreement or finished in or in connection with documents mailed
or delivered to the shareholders of GLOBALNET for use in soliciting their
consent to this Agreement and the Merger contains or will contain at the
Effective Time, any untrue statement of a material fact, or omits or will omit
at the Effective Time to state any material fact necessary in order to make the
statements contained herein or therein, in the light of the circumstances under
which made, not misleading.
4.0 CONDUCT PRIOR TO THE EFFECTIVE TIME.
4.1 Conduct of Business of GLOBALNET. During the period from the date
---------------------------------
of this Agreement and continuing until the earlier of the termination of this
Agreement or the Effective Time, GLOBALNET agrees that it shall not:
(a) issue, grant, deliver or sell or authorize or propose the
issuance, grant, delivery or sale of, or purchase or propose the purchase of,
any shares of its capital stock or securities convertible into, or
subscriptions, rights, warrants or options to acquire, or other agreements or
commitments of any character obligating it to issue any such shares or other
convertible securities except if in connection therewith, it negotiates a
proportionate adjustment in the Exchange Ratio.
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(b) cause or permit any amendments to its Articles of
Incorporation or Bylaws; or
(c) Take, or agree in writing or otherwise to take, any of the
actions described in Sections 4.1 above, or any other action that would prevent
GLOBALNET from performing or cause GLOBALNET not to perform its covenants
hereunder.
4.2 Conduct of Business of Rich Earth and Merger Sub. During the
------------------------------------------------------
period from the date of this Agreement and continuing until the earlier of the
termination of this Agreement or the Effective Time, Rich Earth and Merger Sub
each agrees that it shall not:
(a) issue, grant, deliver or sell or authorize or propose the
issuance, grant, delivery or sale of, or purchase or propose the purchase of,
any shares of its capital stock (other than shares issued upon exercise of the
Rich Earth Warrants) or securities convertible into, or subscriptions, rights,
warrants or options to acquire, or other agreements or commitments of any
character obligating it to issue any such shares or other convertible securities
except if in connection therewith, it negotiates a proportionate adjustment in
the Exchange Ratio;
(b) enter into any contract, arrangement or obligation of any kind;
(c) cause or permit any amendments to their Articles of
Incorporation or Bylaws; or
(d) Take, or agree in writing or otherwise to take, any of the
actions described in Sections 4.2 above, or any other action that would prevent
Rich Earth or Merger Sub from performing or cause Rich Earth or Merger Sub not
to perform its covenants hereunder.
5.0 ADDITIONAL AGREEMENTS.
5.1 Sale of Shares. The parties hereto acknowledge and agree that the
---------------
shares of Rich Earth Common Stock issuable to the stockholders of GLOBALNET
pursuant to Section 1.6 (the "Merger Shares") shall constitute "restricted
securities" within the meaning of the Securities Act. The certificates for the
Merger Shares shall bear appropriate legends to identify such privately placed
shares as being restricted under the Securities Act, to comply with applicable
state securities laws and, if applicable, to notice the restrictions on transfer
of such shares. It is understood and agreed by the parties that after the
Effective Time, Rich Earth intends to file a registration statement on Form S-1
with the Securities and Exchange Commission for registration of all or a portion
of the Merger Shares.
5.2 Stockholder Approval. GLOBALNET and Rich Earth shall promptly
---------------------
submit this Agreement and the transactions contemplated hereby to their
stockholders for approval and adoption as required by law. Rich Earth shall
include in its proxy materials submitted to its shareholders a proposal (i) to
amend its charter to change its name from Rich Earth, Inc. to "GlobalNet
International, Inc."; and (ii) to approve an omnibus stock incentive plan for up
to 3,000,000 shares of Rich Earth Common Stock for issuance under such plan to
officers, directors, employees and consultants of Rich Earth and its
subsidiaries and affiliates.
5.3 Access to Information. Each party shall afford the other and its
-----------------------
accountants, counsel and other representatives, reasonable access during normal
business hours during the period prior to the Effective Time to
(a) all of such party's properties, books, contracts, commitments and records
and (b) all other information concerning the business, properties and personnel
(subject to restrictions imposed by applicable law) of such party as the other
may reasonably request. No information or knowledge obtained in any
investigation pursuant to this Section shall affect or be deemed to modify any
representation or warranty contained herein or the conditions to the obligations
of the parties to consummate the Merger.
5.4 Confidentiality. Each party acknowledges that in the course of the
---------------
performance of this Agreement, it may obtain the Confidential Information of the
other party. The Receiving Party shall, at all times, both during the term of
this Agreement and thereafter, keep in confidence and trust all of the
Disclosing Party's Confidential Information received by it. The Receiving Party
shall not use the Confidential Information of the Disclosing Party other than as
expressly permitted under the terms of this Agreement or by a separate written
agreement. The Receiving Party shall take all reasonable steps to prevent
unauthorized disclosure or use of the Disclosing Party's Confidential
Information and to prevent it from falling into the public domain or into the
possession of unauthorized persons. The Receiving Party shall not disclose
Confidential Information of the Disclosing Party to any person or entity other
than its officers or employees (or outside legal, financial or accounting
advisors) who need GLOBALNET to such Confidential Information in order to effect
the intent of this Agreement and who have entered into confidentiality
agreements with such person's employer or who are subject to ethical
restrictions on disclosure which protects the Confidential Information of the
Disclosing Party. The Receiving Party shall immediately give notice to the
Disclosing Party of any unauthorized use or disclosure of Disclosing Party's
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Confidential Information. The Receiving Party agrees to assist the Disclosing
Party to remedy such unauthorized use or disclosure of its Confidential
Information. These obligations shall not apply to the extent that Confidential
Information includes information which:
(a) is already known to the Receiving Party at the time of
disclosure, which knowledge the Receiving Party shall have the burden of
proving;
(b) is, or through no act or failure to act of the Receiving Party
becomes, publicly known;
(c) is received by the Receiving Party from a third party without
restriction on disclosure (although this exception shall not apply if such third
party is itself violating a confidentiality obligation by making such
disclosure);
(d) is independently developed by the Receiving Party without
reference to the Confidential Information of the Disclosing Party, which
independent development the Receiving Party will have the burden of proving;
(e) is approved for release by written authorization of the Disclosing
Party; or
(f) is required to be disclosed by a Government Body to further
the objectives of this Agreement or by a proper order of a court of competent
jurisdiction; provided, however that the Receiving Party will use its best
efforts to minimize such disclosure and will consult with and assist the
Disclosing Party in obtaining a protective order prior to such disclosure.
5.5 Expenses. Whether or not the Merger is consummated, all fees and
--------
expenses incurred in connection with the Merger including, without limitation,
all legal, accounting, financial advisory, consulting and all other fees and
expenses of third parties ("Third Party Expenses") incurred by a party in
connection with the negotiation and effectuation of the terms and conditions of
this Agreement and the transactions contemplated hereby, shall be the obligation
of the respective party incurring such fees and expenses.
5.6 Public Disclosure. Unless otherwise required by law, prior to the
------------------
Effective Time, no disclosure (whether or not in response to an inquiry) of the
subject matter of this Agreement shall be made by any party hereto unless
approved by Rich Earth and GLOBALNET prior to release, provided that such
approval shall not be unreasonably withheld.
5.7 Consents. Each party shall use its best efforts to obtain the
--------
consents, waivers and approvals as may be required in connection with the Merger
so as to preserve all rights of, and benefits to, such party following the
Merger.
5.8 Reasonable Effort. Subject to the terms and conditions provided in
-----------------
this Agreement, each of the parties hereto shall use commercially reasonable
efforts to take promptly, or cause to be taken, all actions, and to do promptly,
or cause to be done, all things necessary, proper or advisable under applicable
laws and regulations to complete and make effective the transactions
contemplated hereby, to obtain all necessary waivers, consents and approvals and
to effect all necessary registrations and filings and to remove any injunctions
or other impediments or delays, legal or otherwise, in order to consummate and
make effective the transactions contemplated by this Agreement for the purpose
of securing to the parties hereto the benefits contemplated by this Agreement.
5.9 Notification of Certain Matters. Each party shall give prompt
----------------------------------
notice to the other of (i) the occurrence or non-occurrence of any event, the
occurrence or non-occurrence of which is likely to cause any representation or
warranty of such party contained in this Agreement to be untrue or inaccurate at
or prior to the Effective Time and (ii) any failure of such party to comply with
or satisfy any covenant, condition or agreement to be complied with or satisfied
by it hereunder; provided, however, that the delivery of any notice pursuant to
this Section shall not limit or otherwise affect any remedies available to the
party receiving such notice.
5.10 Additional Documents and Further Assurances. Each party hereto,
---------------------------------------------
at the request of another party hereto, shall execute and deliver such other
instruments and do and perform such other acts and things as may be necessary or
desirable for effecting completely the consummation of this Agreement and the
transactions contemplated hereby.
5.11 Private Placement. Rich Earth will complete a private placement
------------------
raising a minimum of $6,000,000. The private placement will be a unit offering
conducted in connection with this Merger. Each "Unit" will consist of one
common share and one share purchase warrant. Each warrant will be exercisable
for a period of six months for one additional share in the capital of Rich Earth
for $15.00 per share from the date of acquisition by the purchaser of the Units.
Rich Earth may conduct an additional offering under the same terms prior to the
Closing Date with the consent of GLOBALNET prior to the Closing of this Merger
in accordance with Section 4.2. All such funds to be made available minus
expenses to Rich Earth.
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5.12 Bridge Loan. Rich Earth will arrange or directly provide DTA
------------
Communications Network, LLC with a bridge loan in the amount of $2,427,198 (the
"Loan"). The Loan is to be evidenced by a promissory note with a maturity date
of (1)May 31, 2000, or (2) September 21, 2000 in the event the Closing shall not
occur. The parties agree the loan may be repaid or assumed by Rich Earth on
closing the private placement contemplated in sub-section 5.11 above.
5.13 Stock Purchase Agreement. Imperium Capital (USA), Inc. will enter
------------------------
into a binding agreement with Robert Donahue to purchase Rich Earth Common Stock
for an aggregate amount of $1,500,000. Imperium Capital (USA), Inc. will be
obligated to acquire these shares from Robert Donahue within 30 days of the
Closing Date of the Effective Date.
5.14 Employment Agreements. Rich Earth shall enter into employment
----------------------
agreements with Robert Donahue and Colum Donahue (collectively, the "Donahues")
in form and substance acceptable to each of the Donahues.
5.15 Officers and Directors. Rich Earth shall cause each of their
------------------------
officers and directors to submit and such persons shall have submitted written
resignations effective as of the Closing and the nominees selected as per
Section 1.5 shall have been appointed officers and directors of Rich Earth and
the Surviving Corporation, as applicable, effective as of the Closing.
5.16 Donahue Designee's. Robert Donahue and the shareholders of
-------------------
GlobalNet, pro rata based upon their percentage ownership interest in GlobalNet,
shall designate Patrick Kealy and Carmine Adimando to each receive 300,000
shares of Rich Earth Common Stock and such other persons within Robert Donahue's
sole discretion to receive not more than 2,000,000 shares of Rich Earth Common
Stock in the aggregate.
6.0 CONDITIONS TO THE MERGER.
6.1 Conditions to Obligations of Each Party to Effect the Merger. The
-------------------------------------------------------------
respective obligations of each party to this Agreement to effect the Merger
shall be subject to the satisfaction at or prior to the Effective Time of the
following conditions:
(a) No Injunctions or Restraints; Illegality. No temporary
--------------------------------------------
restraining order, preliminary or permanent injunction or other order issued by
any court of competent jurisdiction or other legal restraint or prohibition
preventing the consummation of the Merger shall be in effect, nor shall any
proceeding brought by an administrative agency or commission or other
governmental authority or instrumentality, domestic or foreign, seeking any of
the foregoing be pending; nor shall there be any action taken, or any statute,
rule, regulation or order enacted, entered, enforced or deemed applicable to the
Merger, which makes the consummation of the Merger illegal.
(b) Governmental Approval. Approvals from Governmental Entities
----------------------
(if any) deemed appropriate or necessary by any party to this Agreement shall
have been timely obtained.
(c) Litigation. There shall be no bona fide action, suit, claim
----------
or proceeding of any nature pending, or overtly threatened, against the Rich
Earth or GLOBALNET, their respective properties or any of their officers or
directors, arising out of, or in any way connected with, the Merger or the other
transactions contemplated by the terms of this Agreement.
(d) Minimum Asset Value. Effective as of the Closing and
---------------------
excluding expenses as permitted hereunder, Rich Earth shall have not less than
$3,572,802 of cash and shall have no commitments, obligations or liabilities,
whether fixed, accrued or contingent, other than legal fees and disbursements or
as otherwise disclosed or set forth in this Agreement or the Rich Earth
Disclosure Schedule. Rich Earth shall have loaned to DTA Communications
Network, LLC or to its subsidiaries $2,127,198 in cash for payment by DTA
Communications Network, LLC in accordance with the Transfer Agreement dated
March 6, 2000 between I:Comm Networks, LLC and DTA Communications Network, LLC
and an additional $300,000 to DTA Communications Network, LLC for working
capital purposes of DTA Communications Network, LLC and its affiliates.
6.2 Additional Conditions to Obligations of GLOBALNET. The obligations
-------------------------------------------------
of GLOBALNET to consummate and effect this Agreement and the transactions
contemplated hereby shall be subject to the satisfaction at or prior to the
Effective Time of each of the following conditions, any of which may be waived,
in writing, exclusively by GLOBALNET:
(a) Representations, Warranties and Covenants. The
--------------------------------------------
representations and warranties of Rich Earth in this Agreement shall be true and
correct in all material respects on and as of the Effective Time as though such
representations and warranties were made on and as of such time and Rich Earth
shall have performed and complied in all material respects with all covenants
and obligations of this Agreement required to be performed and complied with by
it as of the Effective Time.
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(b) Claims. There shall not have occurred any claims (whether or
------
not asserted in litigation) which may materially and adversely affect the
consummation of the transactions contemplated hereby or may have a material
adverse effect on Rich Earth.
(c) Certificate of President. GLOBALNET shall have been provided
-------------------------
with a certificate executed on behalf of Rich Earth by its President to the
effect that, as of the Effective Time:
(i) all representations and warranties made by the Rich Earth
in this Agreement are true and correct in all material respects;
(ii) all covenants and obligations of this Agreement to be
performed by the Rich Earth on or before such date have been so performed in all
material respects.
(iii) the conditions set forth in Section 6.1 and 6.2 have
been satisfied.
6.3 Additional Conditions to the Obligations of Rich Earth. The
-------------------------------------------------------------
obligations of Rich Earth to consummate and effect this Agreement and the
transactions contemplated hereby shall be subject to the satisfaction at or
prior to the Effective Time of each of the following conditions, any of which
may be waived, in writing, exclusively by Rich Earth:
(a) Representations, Warranties and Covenants. The
--------------------------------------------
representations and warranties of GLOBALNET in this Agreement shall be true and
correct in all material respects on and as of the Effective Time as though such
representations and warranties were made on and as of the Effective Time and
GLOBALNET shall have performed and complied in all material respects with all
covenants and obligations of this Agreement required to be performed and
complied with by it as of the Effective Time.
(b) Claims. There shall not have occurred any claims (whether or
------
not asserted in litigation) which may materially and adversely affect the
consummation of the transactions contemplated hereby or may have a material
adverse effect on GLOBALNET.
(c) Third Party Consents. Any and all consents, waivers, and
----------------------
approvals required by GLOBALNET shall have been obtained.
(d) Certificate of GLOBALNET. Rich Earth shall have been provided
------------------------
with a certificate executed on behalf of GLOBALNET by its President to the
effect that, as of the Effective Time:
(i) all representations and warranties made by GLOBALNET in
this Agreement are true and correct in all material respects; and
(ii) all covenants and obligations of this Agreement to be
performed by GLOBALNET on or before such date have been so performed in all
material respects.
(iii) the provisions set forth in Section 6.3 have been
satisfied.
7.0 SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
7.1 Survival of Representations and Warranties. All representations,
---------------------------------------------
warranties, agreements, covenants contained in this Agreement shall survive for
a period of three years from the anniversary date of the Effective Date; except
for the representations and warranties relating or pertaining to any tax or tax
returns by the parties which shall survive until the expiration of all
applicable statutes of limitations, or extensions thereof, governing each tax or
tax returns.
8.0 TERMINATION, AMENDMENT AND WAIVER.
8.1 Termination. Except as provided in Section 8.2, this Agreement may
-----------
be terminated and the Merger abandoned at any time prior to the Effective Time:
(a) by mutual consent of GLOBALNET and Rich Earth;
(b) by Rich Earth or GLOBALNET if (a) the Effective Time has not
occurred by July 1, 2000; (b) there shall be a final nonappealable order of a
federal or state court in effect preventing consummation of the Merger; or (c)
there shall be any statute, rule, regulation or order enacted, promulgated or
issued or deemed applicable to the Merger by any Governmental Entity that would
make consummation of the Merger illegal;
(c) by either party if there shall be any action taken, or any
statute, rule, regulation or order enacted, promulgated or issued or deemed
applicable to the Merger by any Governmental Entity, which would prohibit
GLOBALNET's ownership or operation of any portion of the business of Rich Earth;
(d) by GLOBALNET if it is not in material breach of its
obligations under this Agreement and there has been a material breach of any
representation, warranty, covenant or agreement contained in this Agreement on
the part of Rich Earth and such breach has not been cured within ten (10)
calendar days after written notice to Rich Earth; provided, however, that, no
-------- -------
cure period shall be required for a breach which by its nature cannot be cured;
45
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(e) by Rich Earth if it is not in material breach of its
obligations under this Agreement and there has been a material breach of any
representation, warranty, covenant or agreement contained in this Agreement on
the part of GLOBALNET and such breach has not been cured within ten (10)
calendar days after written notice to GLOBALNET; provided, however, that no cure
-------- -------
period shall be required for a breach which by its nature cannot be cured.
Where action is taken to terminate this Agreement pursuant to this Section 8.1,
it shall be sufficient for such action to be authorized by the Board of
Directors (as applicable) of the party taking such action.
8.2 Effect of Termination. In the event of termination of this
-----------------------
Agreement as provided in Section 8.1, this Agreement shall forthwith become void
and there shall be no liability or obligation on the part of Rich Earth or
GLOBALNET, or their respective officers, directors or shareholders, provided
that each party shall remain liable for any breaches of this Agreement prior to
its termination; provided further that, the provisions of Sections 5.4, 5.5 and
5.6, Section 9 and this Section 8.2 shall remain in full force and effect and
survive any termination of this Agreement.
8.3 Amendment. This Agreement may be amended by the parties hereto at
---------
any time by execution of an instrument in writing signed on behalf of each of
the parties hereto.
8.4 Extension; Waiver. At any time prior to the Effective Time, Rich
------------------
Earth and GLOBALNET, may, to the extent legally allowed, (i) extend the time for
the performance of any of the obligations of the other party hereto, (ii) waive
any inaccuracies in the representations and warranties made to such party
contained herein or in any document delivered pursuant hereto, and (iii) waive
compliance with any of the agreements or conditions for the benefit of such
party contained herein. Any agreement on the part of a party hereto to any such
extension or waiver shall be valid only if set forth in an instrument in writing
signed on behalf of such party.
9.0 GENERAL PROVISIONS.
9.1 Notices. All notices and other communications hereunder shall be
-------
in writing and shall be deemed given if delivered personally or by commercial
messenger or courier service, or mailed by registered or certified mail (return
receipt requested) or sent via facsimile (with acknowledgment of complete
transmission) to the parties at the following addresses (or at such other
address for a party as shall be specified by like notice), provided, however,
--------
that notices sent by mail will not be deemed given until received:
(a) if to Rich Earth, to:
Venture Law Corporation
688 West Hastings Street, Suite 618
Vancouver, BC, V6B 1P1
Attention: Alixe B. Cormick
Telephone No.: (604) 659-9188
Facsimile No.: (604) 659-9178
(b) if to GLOBALNET, to:
GLOBALNET, Inc.
721 E. Madison
Villa Park, Illinois 60181
Attention: Robert Donahue, President
Telephone No.: (630) 279-1735
Facsimile No.: (630) 279-9720
and copies to:
Cummings & Lockwood
Four Stamford Plaza
P.O. Box 120
Stamford, Connecticut 06904-0120
Attn: David E. Fleming, Esq.
Telephone No.: (203) 327-1700
Facsimile No.: (203) 351-4535
46
<PAGE>
and to:
Greenhill Partners, P.C.
555 Fifth Avenue
18th Floor
New York, NY 10017
Attn: Jonathan S. Greenhill, Esq.
Telephone No.: (212) 661-5500
Facsimile No.: (212) 661-5509
9.2 Interpretation. The words include, includes and including when
--------------
used herein shall be deemed in each case to be followed by the words without
limitation. 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.
9.3 Counterparts. This Agreement may be executed in one or more
------------
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other party, it being understood that all
parties need not sign the same counterpart.
9.4 Entire Agreement; Assignment. This Agreement, the Exhibits hereto
-----------------------------
and the documents and instruments and other agreements among the parties hereto
referenced herein: (a) constitute the entire agreement among the parties with
respect to the subject matter hereof and supersede all prior agreements and
understandings both written and oral among the parties with respect to the
subject matter hereof, (b) are not intended to confer upon any other person any
rights or remedies hereunder; and (c) shall not be assigned by operation of law
or otherwise.
9.5 Severability. In the event that any provision of this Agreement or
------------
the application thereof, becomes or is declared by a court of competent
jurisdiction to be illegal, void or unenforceable, the remainder of this
Agreement will continue in full force and effect and the application of such
provision to other persons or circumstances will be interpreted so as reasonably
to effect the intent of the parties hereto. The parties further agree to
replace such void or unenforceable provision of this Agreement with a valid and
enforceable provision that will achieve, to the extent possible, the economic,
business and other purposes of such void or unenforceable provision.
9.6 Other Remedies. 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.
9.7 Governing Law. This Agreement shall be governed by and construed
--------------
in accordance with the laws of the State of Nevada, regardless of the laws that
might otherwise govern under applicable principles of conflicts of laws thereof.
Each of the parties hereto irrevocably consents to the exclusive jurisdiction
and venue of any court within Clark County, State of Nevada, in connection with
any matter based upon or arising out of this Agreement or the matters
contemplated herein, agrees that process may be served upon them in any manner
authorized by the laws of the State of Nevada for such persons and waives and
covenants not to assert or plead any objection which they might otherwise have
to such jurisdiction, venue and such process.
9.8 Rules of Construction. The parties hereto agree that they have
-----------------------
been represented by counsel during the negotiation and execution of this
Agreement and, therefor, waive the application of any law, regulation, holding
or rule of construction providing that ambiguities in an agreement or other
document will be construed against the party drafting such agreement or
document.
47
<PAGE>
IN WITNESS WHEREOF, the Parties have executed this Agreement as of March __,
2000.
GLOBALNET, INC. RICH EARTH, INC.
By:_____________________________ By:___________________________
Name: Robert Donahue Name: Xenios Xenopoulous
Title: Chief Executive Officer and Title: President
GN ACQUISITION CORP.
By:___________________________
Name:
Title:
Agreed and accepted to as to Sections 1.7 and
9 hereof:
VENTURE LAW CORPORATION
By:_____________________________
Name:
Title:
48
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