REORGANIZATION PLAN AND AGREEMENT
A PLAN AND AGREEMENT dated as of September 20, 2000 by and among Innovation
International, Inc., a Delaware corporation ("INNO"), REFERRAL HOLDINGS, INC., a
Nevada corporation organized by INNO ("HOLDINGS"), Referralfinance.Com
Corporation, a Wyoming corporation ("RFCC"), and Glenn A. LaPointe ('LaPointe")
as Owners Agent and Representative for the sixteen (16) individual shareholders
of RFC whose names are listed on Schedule I annexed hereto ("the OWNERS").
WITNESSETH:
WHEREAS: INNO is owned by more than 400 shareholders residing in 26 States
(the "Shareholders"); and HOLDINGS is owned by INNO; and 100% of the stock of
RFCC is held by the OWNERS; and
WHEREAS, the Owners have appointed LaPointe as their agent and
representative to act in their behalf and to execute this agreement in their
behalf with full authority to obligate each of them as if each of the Owners had
himself or herself executed this agreement; and.
WHEREAS, the Board of Directors of INNO has declared a stock
dividend-in-kind, equal to 1,600,000 shares of the Common Stock of HOLDINGS and
1,600,000 Common Stock Purchase Warrants of HOLDINGS, payable directly to the
Shareholders and subject to their acceptance or return as described elsewhere
herein, resulting in the severance and termination of INNO's control over
HOLDINGS; and
WHEREAS, the Board of Directors of HOLDINGS has approved a plan to acquire
100% of the stock of RFCC, and the OWNERS wish to transfer the same to HOLDINGS
as provided herein, in exchange for the Consideration described herein, 'and
subject to the condition that HOLDINGS be severed from INNO; and
NOW, THEREFORE, in consideration of the foregoing and the mutual
premises herein set forth, and subject to the terms and conditions hereof, the
parties agree as follows:
1. ACQUISITION OF RFCC BY HOLDINGS. Prior to the Closing Date defined
herein, INNO shall have declared and given notice of a stock dividend, payable
to all shareholders of INNO, pro-rata, in shares of HOLDINGS Common Stock and
Common Stock Purchase Warrants. The payment date for said dividend shall be as
soon as practicable following the closing date and shall be postponed only to
accommodate the preparation of a Foffi1 10SB and a Disclosure Statement required
by the SEC to be distributed to shareholders at the time the stock is physically
delivered to them. Nothing herein contained shall diminish the obligations set
forth herein pursuant to which INNO shall distribute or cause HOLDINGS to
distribute 1,600,000 shares ("Shares") of the $.001 par value Common Stock of
HOLDINGS and 1,600,000 Common Stock Purchase Warrants ("Warrants") of HOLDINGS
to the Shareholders in the ratio of One (1) HOLDINGS share and One (1) HOLDINGS
warrant for each Twenty-five (25) INNO shares owned, said distribution to be
done as a Stock Dividend-in- Kind. On the Closing Date, HOLDINGS shall issue and
deliver to the OWNERS the consideration described below in exchange for 100% of
the stock in RFCC owned by them; whereupon RFCC shall then have become a wholly
owned subsidiary of HOLDINGS.
2. CONSIDERATION. In consideration of the acquisition of RFCC, HOLDINGS
shall issue and deliver an aggregate of nineteen million, seven hundred thousand
(19,700,000) shares of its common stock to be allocated to the OWNERS in the
same proportion as their holdings in RFCC are described in Schedule I hereto.
3. THE CLOSING. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place on September 20, 2000 at a place
deteffi1ined and agreed by HOLDINGS and the OWNERS.
4. REPRESENTATIONS OF RFCC AND THE OWNERS. RFCC and the OWNERS identified
herein jointly and severally represent and warrant to INNO and HOLDINGS as
follows:
(a) Organization. RFCC is duly organized and validly exists as a
business corporation under the laws of the State of Texas. RFCC has no
subsidiaries. RFCC has the legal power and authority to own, operate and
lease its RFCC and assets and to carry on its business as now conducted,
and is duly qualified to do business wherever the nature and location of
its business and assets require such qualification.
(b) Authorization and Capital Stock. RFCC has and the OWNERS have the
legal power, authority and capacity to enter into, execute, deliver and
perform its obligations under this Agreement. This Agreement constitutes
the valid and binding agreement of RFCC, and the OWNERS and is enforceable
in accordance with its terms (subject to applicable bankruptcy, insolvency
and other rights affecting the enforceability of creditors' rights
generally and the discretion of the courts in granting equitable remedies).
The authorized capital stock of RFCC consists of 100,000,000 shares of no
par value Common Stock and 20,000,000 shares of no par value Preferred
Stock of which 9,979,700 Common Shares and no Preferred Shares are validly
issued, fully paid, non-assessable and outstanding. There are no other
securities, subscriptive rights or rights, warrants, options, contracts,
understandings or commitments providing for issuance of, or granting rights
to acquire any capital stock of RFCC or securities convertible into or
exchangeable for capital stock of RFCC.
(c) Assets and Business. Except as described in any schedule and/or
exhibit hereto and in the financial statements, RFCC owns, free and clear
of all other mortgages, claims, charges, liens, encumbrances restrictions,
options, pledges, calls or commitments of any character and any security
interest whatsoever, and holds good and marketable title to all of the
assets and rights currently used in the conduct of its business. There are
no existing agreements, warrants or rights providing for the sale of any
assets, properties, rights or for the business of RFCC except for sales in
the ordinary course of business.
(d) Licenses. If any licenses from which no exemption is applicable or
has been obtained, are necessary, RFCC holds all licenses necessary to the
conduct of its business, all of which have been duly and validly obtained,
are enforceable and are in full force and effect as of the date hereof.
RFCC is not in default under any of such licenses and has not committed or
omitted an act which would constitute default or which would be grounds for
license revocation or suspension. Neither this Agreement nor its
consummation will result in the forfeiture, revocation, impairment or
suspension of such licenses.
(e) Financial Statements. RFCC has delivered to INNO true, correct and
complete financial statements of RFCC (copies of which are annexed hereto
as Exhibit 3) as of and for the year ending March 31, 2000 in audited form,
from an independent auditing firm of standing up to the requirements of the
SEC and NASD for the level of public reporting selected by HOLDINGS and
RFCC after the closing. The financial statements appearing as Exhibit 3 are
materially correct and complete and have been prepared in accordance with
generally accepted accounting principles consistently applied. Financial
statements for the year ending March 31,2001 and all subsequent years will
be audited and certified by such qualified auditors and will include the
combination or consolidation of the accounts of RFCC and HOLDINGS.
(f) Public and Regulatory Information. RFCC and the OWNERS shall
prepare or obtain and deliver to HOLDINGS all financial and other
information required to be included in the reports which HOLDINGS must file
in support of the trading of its common stock in the Over The Counter
markets, or as may be required by the SEC in connection with the issuance
and/or trading of its securities, or by the NASD or any Broker Dealer
organization making a market or proposing to make a market in the
securities of HOLDINGS, all of which shall be prepared and filed in a
timely manner. The preparation and provision of all financial statements
described above in sub-paragraph (e) are included, without limiting the
generality hereof, in this sub- paragraph (f).
(g) Information. All written material furnished or to be furnished by
RFCC and the OWNERS does not and will not contain any statement which is
false or misleading with respect to any material fact, and does not and
will not omit to state any material fact, the omission of which makes the
statements therein false or misleading.
(h) Taxes. RFCC has duly filed all tax returns and reports ( or
extensions for filing such returns and reports) related to its business
required to be filed and has duly paid all taxes and other governmental
charges ("Taxes") upon RFCC's properties, assets, income, franchises,
licenses, stock issuances or transfers or sales related to its business.
There are no unpaid taxes which are a lien on RFCC's properties and assets,
except liens for Taxes not yet due and payable. There is not pending or
known any proposed assessment by any taxing authority for additional Taxes
applicable to RFCC. RFCC has not adopted a plan of liquidation under any
tax code, or entered into any contract to merge or consolidate with or sell
all or any substantial part of its assets to any other firm or corporation.
(i) No Adverse Change. Except as set forth on Schedule 3i annexed
hereto, and to the best knowledge of the OWNERS after due inquiry, since
March 31,2000, there has not been (i) any material adverse change in the
financial condition of RFCC or in its operations, business, prospects,
properties or assets, (ii) any past or prospective loss of its business, or
any notice from any customer that it is planning or considering a material
change in its patronage, (iii) any mortgage, pledge, lien or encumbrance or
other security interest made or incurred on any of RFCC's assets, other
than liens for Taxes not yet due and payable, (iv) any sale, transfer or
other disposition of RFCC's properties or assets other than arising in the
ordinary course of business, (v) any loan, borrowing or guaranty obligating
RFCC other than arising in the ordinary course of business, or (vi) any
other event or condition of any character which has materially and
adversely affected or does materially and adversely affect RFCC's assets or
impede its business.
(j) Insurance. RFCC maintains fully paid-up transferable insurance
policies or bonds which provide insurance coverage in normal and customary
amounts with respect to the risks normally insured against by companies
similarly situated, including general and public liability insurance.
(k) Litigation. Except as disclosed in any schedule or exhibit hereto,
there is no legal, administrative, arbitration or other proceeding or
claim, governmental or administrative investigation or inquiry pending or
threatened against or involving RFCC or RFCC's properties, assets, business
or financial condition, or which questions. RFCC's ability to carry out its
obligations hereunder,. or which challenges the acquisition of RFCC by
HOLDINGS or the exchange of securities contemplated hereby.
(l) Authority. On or before the closing date, RFCC will have taken all
necessary legal action to approve the execution and delivery of this
Agreement and the performance of its obligations hereunder and all
transactions contemplated hereby will have been duly authorized by all
requisite corporate action on the part of the Directors and OWNERS of RFCC,
and RFCC and no further authorization, approval or consent is necessary.
Neither the Directors nor any other present OWNERS of RFCC will have any
appraisal or other dissenters' rights respecting the transactions
contemplated hereby.
(m) Compliance with Other Instruments. Etc. Neither the execution and
delivery of this Agreement nor the consummation of the transactions
contemplated hereby will conflict with or result in violation of or
constitute a default under and is not prohibited by the Articles of
Incorporation or By-Laws of RFCC, the provisions of any agreement,
mortgage, indenture, franchise, license, permit, or other consent, approval
authorization, lease or other instrument, judgement, decree, order, law or
regulation by which RFCC is bound or by which RFCC's business or assets may
be affected.
(n) Governmental and Other Consents. Etc. No consent, approval or
authorization of or declaration or filing with any governmental authority
or other person or entity, domestic or foreign, on the part of RFCC is
required in connection with the execution and delivery of this Agreement or
the consummation of the transactions contemplated hereby.
(o) Compliance with Law. Etc. RFCC has complied with and is not in
default in any respect under any law, ordinance, requirement, regulation,
judgement, decree or order applicable to it or its business or RFCC and
RFCC has not received notice of any claimed default with respect to any of
the foregoing.
(p) Adverse Agreements. Etc. Except as set forth on any Schedule or
exhibit hereto, neither RFCC nor the OWNERS is a party to any agreement or
instrument or subject to any charter or other corporate restriction which
materially and adversely affects RFCC's or the OWNERS' obligations
hereunder.
(q) Brokers. All negotiations relative to this Agreement and the
transactions contemplated hereby have been conducted without the
intervention of any other person or entity, and in such a manner so as not
to give rise to any valid claim against INNO, HOLDINGS or RFCC for a
finder's or brokerage fee or like payment.
(r) Restricted Securities. The HOLDINGS common stock to be issued
hereunder, upon issuance c and transfer to the OWNERS, will not have been
"registered" and therefore will be "restricted securities", as those terms
are used under the Securities Act of 1933, as amended (the "1933 Act"), and
the rules and regulations thereunder. By execution of this Agreement, each
OWNER agrees, represents and warrants that his acquisition of the HOLDINGS
Shares hereunder is for investment only, for his own account (both of
record and beneficially) and not with a view to "distribution" as that term
is used under the 1933 Act. The HOLDINGS shares to be issued hereunder may
bear a legend substantially as follows: "THE SHARES OF STOCK REPRESENTED BY
THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR UNDER ANY STATE SECURITIES LAW, AND MAY NOT BE TRANSFERRED
UNLESS THE CORPORATION RECEIVES AN OPINION OF COUNSEL, AT THE REQUEST OF
THE PRESIDENT, SATISFACTORY TO THE CORPORATION AND ITS COUNSEL, THAT SUCH
TRANSFER OR OTHER DISPOSITION CAN BE MADE WITHOUT REGISTRATION UNDER THE
SECURITIES ACT OF 1933 AND ALL APPLICABLE FEDERAL AND STATE SECURITIES
LAWS. BY ACQUIRING THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE,
EACH STOCKHOLDER REPRESENTS THAT HE HAS ACQUIRED SUCH SHARES OF STOCK FOR
INVESTMENT AND THAT HE WILL NOT SELL OR OTHERWISE DISPOSE OF THE SHARES OF
STOCK WITHOUT REGISTRATION OR OTHER COMPLIANCE WITH THE AFORESAID ACT AND
RULES AND REGULATIONS THEREUNDER."
5. REPRESENTATIONS AND WARRANTIES OF INNO AND HOLDINGS. INNO and HOLDINGS
represent and warrant to the OWNERS as follows:
(a) Organization: Good Standing. INNO and HOLDINGS are duly organized,
validly existing and in good standing under the laws of their respective
States of incorporation with all requisite corporate power and authority to
own, operate and lease its respective RFCC and assets and to carry on its
business as now or to be conducted, and is and will be duly qualified to do
business wherever the nature and location of its businesses and assets
requires such qualification.
(b) Authority. INNO and HOLDINGS have taken and will have taken,
prior to the closing date, all necessary corporate action to approve the
execution, delivery and perfoffi1ance of this Agreement and the
transactions contemplated hereunder.
(c) Capitalization. (i) The authorized capital of INNO consists of one
hundred million (100,000,000) shares of common stock of which forty million
(40,000,000) shares are validly issued, fully paid, non-assessable and
outstanding. (ii) The authorized capital of HOLDINGS consists of one
hundred million (100,000,000) shares of common stock of which 1,600,000
will have been issued prior to the Closing Date, and five million
(5,000,000) shares of Preferred stock of which none will have been issued
prior to the closing date. In addition Holdings will have issued 1,600,000
Redeemable Common Stock Purchase Warrants entitling each Warrant Holder to
purchase on or before December 31, 2002 one (1) share of Holdings common
stock per Purchase Warrant for the sum of one dollar and fifty cents
($1.50); (iii) except as set forth in this Agreement, there are and will be
on the Closing Date, no existing agreements, warrants, options,
subscription rights or other contracts or rights providing for the sale or
issuance of securities of HOLDINGS.
(d) Assets and Business. INNO and HOLDINGS respectively engage in no
business except as characterized by the purposes of this Agreement. Neither
INNO nor HOLDINGS own any material assets or RFCC. There are no existing
agreements, warrants or rights currently used or useful in the conduct of
the business of either INNO or HOLDINGS.
(e) Licenses. Neither INNO nor HOLDINGS holds any licenses.
(f) Financial Statements. (i) During the seven (7) years preceding the
date of this Agreement, no audited or unaudited financial statement has
been prepared on INNO. INNO has no material assets and no material
liabilities. INNO has not engaged in any business during the period since
1991. (ii) HOLDINGS was incorporated on April 26,2000. HOLDINGS has not
prepared a financial statement. On the Closing Date, HOLDINGS will have no
liabilities and no assets with the exception of "Organization Costs" in an
amount less than two thousand dollars ($2,000.00).
(g) Public and Regulatory Information. INNO shall use its best efforts
to supply infonI1ation to the OWNERS and HOLDINGS and RFCC for inclusion in
any reports required to be filed by HOLDINGS in support of the trading of
its common stock in the Over The Counter markets, or as may be required by
the SEC in connection with the issuance and/or trading of its securities,
or by the NASD or any Broker Dealer organization making ~ market or
proposing to make a market in the securities of HOLDINGS. Nothing contained
herein shall function to obligate INNO to obtain and/or supply audited
financial infonI1ation or other infonI1ation which INNO, in the sole
judgement of its officers and directors, cannot practicably obtain.
(h) Information. All written material furnished or to be furnished by
INNO and HOLDINGS does not and will not contain any statement which is
false or misleading with respect to any material fact, and does not and
will not omit to state any material fact, the omission of which makes the
statements therein false or misleading.
(i) Taxes. INNO has not since 1991 filed federal, state, local or
foreign tax returns and reports (or extensions for filing such returns and
reports) related to its business. INNO believes that no such returns were
required to be filed between 1991 and the Closing Date. There are no unpaid
taxes which are a lien on INNO's RFCC and assets. There is not pending or
known any proposed assessment by any taxing authority for additional Taxes
applicable to INNO.
(j) Insurance. Neither INNO nor HOLDINGS maintains any insurance
policies or bonds with respect to the risks normally insured against by
companies similarly situated, including general and public liability
insurance.
(k) Litigation. There is no legal, administrative, arbitration or
other proceeding or claim, governmental or administrative investigation or
inquiry pending or threatened against or involving INNO or HOLDINGS, their
RFCC, assets, business or financial condition, or which questions the
ability of INNO or HOLDINGS to carry out its obligations hereunder, or
which challenges the acquisition of RFCC by HOLDINGS or the exchange of
securities contemplated hereby.
(l) Authority. On or before the closing date, INNO and HOLDINGS will
have taken all necessary legal action to approve the execution and delivery
of this Agreement and the performance of its obligations hereunder and all
transactions contemplated hereby will have been duly authorized by all
requisite corporate action on the part of the Directors of INNO and
HOLDINGS, and INNO and HOLDINGS, and no further authorization, approval or
consent is necessary.
(m) Compliance with Other Instruments. Etc. Neither the execution and
delivery of this l Agreement nor the consummation of the transactions
contemplated hereby will conflict with or I result in violation of or
constitute a default under and is not prohibited by the Articles of
Incorporation or By-Laws of INNO or HOLDINGS, the provisions of any
agreement, mortgage, indenture, franchise, license, permit, or other
consent, approval authorization, lease or other instrument, judgement,
decree, order, law or regulation by which INNO or HOLDINGS is bound or by
which any business or assets may be affected.
(n) Governmental and Other Consents. Etc. No consent, approval or
authorization of or declaration or filing with any governmental authority
or other person or entity, domestic or foreign, on the part of INNO or
HOLDINGS is required in connection with the execution and delivery of this
Agreement or the consummation of the transactions contemplated hereby.
(o) Compliance with Law. Etc. INNO and HOLDINGS have complied with and
are not in default in any respect under any law, ordinance, requirement,
regulation, judgement, decree or order applicable to them or their business
or RFCC and neither has received notice of any claimed default with respect
to any of the foregoing.
(p) Adverse Agreements. Etc. Neither INNO nor HOLDINGS is a party to
any agreement or instrument or subject to any charter or other corporate
restriction which materially and adversely affects their obligations
hereunder.
(q) No Continuing INNO Interest.
(a)By execution of this Agreement, INNO and HOLDINGS agree,
represent and warrant that after distribution of the HOLDINGS shares
described
(b) Operation in Usual Manner. From and after the execution and
delivery of this Agreement and until the Closing Date, INNO and
HOLDINGS shall continue to conduct business in a prudent manner and
not engage in any activity outside the normal and ordinary course of
such business in pursuit of the transactions contemplated by this
Agreement and not incur any obligations not incurred in the interests
of the transactions contemplated hereby and take no actions or omit to
take any actions the taking or omitting of which would result in any
material adverse change in the financial condition of INNO or HOLDINGS
or either of their operations, business, prospects, RFCC or assets or
ability to perform their respective obligations hereunder.
(c) Miscellaneous. INNO and HOLDINGS agree to call and hold such
meeting(s) of Directors as shall be necessary to consider and approve
the transactions described herein.
8. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF RFCC AND THE OWNERS. All
obligations of RFCC and the OWNERS under this Agreement are subject at their
discretion to the fulfillment, at or prior to the Closing Date of each of the
following conditions:
(i) INNO's and HOLDINGS's representations and warranties herein
contained shall be true in all material respects on and as of the Closing
Date with the same force and effect as though made on and as of said date;
(ii) INNO and HOLDINGS shall have performed in all material respects
all its obligations and agreements and complied with all its covenants
contained in this Agreement to be performed and complied with by INNO and
HOLDINGS on or prior to the Closing Date;
(iii) The OWNERS shall have received a certificate executed by the
President of INNO dated the Closing Date, in form and substance
satisfactory to the OWNERS, with respect to the matters specified in
Section 9(i) and 9(ii);
(iv) The OWNERS shall have received a certificate executed by the
President of INNO and attaching evidence of Corporate existence and good
standing of INNO and HOLDINGS in form and substance satisfactory to OWNERS.
(v) No suit action or other proceeding shall be pending before any
court or governmental agency in which it is sought to restrain or prohibit,
or to obtain damages or other relief in connection with, this Agreement or
the consummation of the transactions contemplated hereby or which might
materially and adversely affect the value of HOLDINGS's business and
assets.
9. CONDITIONS PRECEDENT TO INNO'S AND HOLDINGS'S OBLIGATIONS All
obligations of RFCC and the OWNERS under this Agreement are subject at their
discretion, to the fulfillment, at or prior to the Closing Date of each of the
following conditions:
(i) RFCC' and the OWNERS' representations and warranties herein
contained shall be true in all material respects on and as of the Closing
Date with the same force and effect as though made on and as of said date;
(ii) RFCC and the OWNERS shall have performed in all material respects
all its obligations and agreements and complied with all its covenants
contained in this Agreement to be performed and complied with by RFCC and
the OWNERS on or prior to the Closing Date;
(iii) INNO shall have received a certificate executed by the President
of RFCC and by the OWNERS dated the Closing Date, in form and substance
satisfactory to the President of INNO, with respect to the matters
specified in Section 10(i) and 10(ii);
(iv) INNO shall have received a certificate executed by the President
of RFCC and attaching evidence of Corporate existence and good standing of
RFCC in form and substance satisfactory to the President of INNO.
(v) No suit action or other proceeding shall be pending before any
court or governmental agency in which it is sought to restrain or prohibit,
or to obtain damages or other relief in connection with, this Agreement or
the consummation of the transactions contemplated hereby or which might
materially and adversely affect the value of RFCC' business and assets.
10. SURVIVAL OF CERTAIN PROVISIONS. All of the representations, warranties
and covenants contained in Sections 5,6,7 ,and 8 of this Agreement shall survive
the Closing Date for a period of two (2) years.
11. INDEMNIFICATION OF INNO AND HOLDINGS.
(a) Notwithstanding the events to take place on the Closing Date, and
regardless of any investigation at any time made by or on behalf of INNO or
HOLDINGS or any information that either of them may have, RFCC and the
OWNERS agree to fully indemnify, defend, save and hold INNO and HOLDINGS
harmless in the event that INNO or HOLDINGS shall at any time during the
two (2) year period following the Closing Date, suffer any expense, damage,
liability, los~ cost or deficiency, or shall have asserted against it any
claim, demand or suit, which arises out of or results from, or if INNO or
HOLDINGS shall pay or become obligated to pay any sum or incur any expense
(including reasonable attorney's fees) on account of the following: (i) any
inaccuracy in any representation or the breach of any warranty of RFCC or
the OWNERS hereunder; (ii) any failure of RFCC or the OWNERS duly to
perform or observe any term, provision, covenant, agreement or condition
hereunder on the part of RFCC or the OWNERS to be performed or observed;
(iii) any material misrepresentation in, or omission from, any statement,
exhibit, certificate, schedule or other document furnished on or after the
date hereof pursuant to this Agreement by RFCC or the OWNERS (or any
representative thereof); (iv) any and all claims, demands, suits, actions,
causes of action, proceedings, losses, liabilities, judgements, including
but not limited to, costs and legal and other expenses, incident to any of
the matters otherwise indemnified against by this Section 12 must be
asserted by INNO or HOLDINGS no later than the second anniversary of the
Closing Date.
(b) The foregoing indemnification is in addition to all of INNO's and
HOLDINGS's other rights and remedies under law or in equity for any breach
by RFCC or the OWNERS and INNO's and HOLDINGS' right of offset for any
Consideration or other sum which INNO or HOLDINGS is obligated to pay to
the OWNERS is expressly preserved.
12. INDEMNIFICATION OF RFCC AND THE OWNERS.
(a) Notwithstanding the events to take place on the Closing Date, and
regardless of any investigation at any time made by or on behalf of RFCC or
the OWNERS or any information that either of them may have, INNO and
HOLDINGS agree to fully indemnify, defend, save and hold RFCC and the
OWNERS harmless in the event that RFCC or the OWNERS shall at any time
during the two (2) year period following the Closing Date, suffer any
expense, damage, liability, loss, cost or deficiency, or shall have
asserted against it any claim, demand or suit, which arises out of or
results from, or if RFCC or the OWNERS shall pay or become obligated to pay
any sum or incur any expense (including reasonable attorney's fees) on
account of the following: (i) any inaccuracy in any representation or the
breach of any warranty of INNO or HOLDINGS hereunder; (ii) any failure of
INNO or HOLDINGS duly to perform or observe any Term, provision, covenant,
agreement or condition hereunder on the part of INNO or HOLDINGS to be
performed or observed; (iii) any material misrepresentation in, or omission
from, any statement, exhibit, certificate, schedule or other document
furnished on or after the date hereof pursuant to this Agreement by INNO or
HOLDINGS ( or any representative thereof); (iv) any and all claims,
demands, suits, actions, causes of action, proceedings, losses,
liabilities, judgements, including but not limited to, costs and legal and
other expenses, incident to any of the matters otherwise indemnified
against by this Section 13 must be asserted by RFCC or the OWNERS no later
than the second anniversary of the Closing Date.
(b) The foregoing indemnification is in addition to all of RFCC' and
the OWNERS' other rights and remedies under law or in equity for any breach
by INNO or HOLDINGS and RFCC' and the OWNERS right of offset for any
Consideration or other sum which RFCC or the OWNERS is obligated to pay to
INNO or HOLDINGS is expressly preserved.
Agreement shall be determined by a court of competent jurisdiction to
be invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
22. 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.
23. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Massachusetts and shall be binding on
and shall inure to the benefit of the parties hereto and their respective
successors and assigns.
24. HEADINGS. The descriptive headings of the several paragraphs of this
Agreement are inserted for convenience only and do not constitute apart of this
Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
INNOVATION INTERNATIONAL, INC.
Attest:
/s/ Lee B. Wright /s/ Frank G. Wright
------------------------- -------------------------------
Lee B. Wright, Secretary Frank G. Wright, President
REFERRAL HOLDINGS CORPORATION
Attest:
/s/ Lee B. Wright /s/ Frank G. Wright
------------------------- -------------------------------
Lee B. Wright, Secretary Frank G. Wright, President
RFCC, INC.
/s/ Glenn A. LaPointe
----------------------------------
President
Attest:
/s/ Ty Davidson
____________________________________ Assistant Secretary
THE OWNERS.
By their agent and representative:
Glenn A. LaPointe
/s/ Glenn A. LaPointe Witness:
/s/ Ty Davidson
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