U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K/A
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): July 15, 1999
INTERNET BUSINESS'S INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
Nevada .
(State or jurisdiction of incorporation or organization)
33-43621
(Commission File Number)
33-03007734
(I.R.S. Employer Identification Number)
3900 Birch Street, Suite 111, Newport Beach, California 92660
(Address of principal executive offices) (Zip Code)
Registrant's telephone number: (714) 833-0261
(Former name or former address, if changed since last report)
ITEM 5. OTHER EVENTS.
On July 1, 1999, an Agreement and Plan of Merger between
Internet Business's International, Inc., a Delaware corporation,
and Internet Business's International, Inc., a Nevada
corporation, was executed by an authorized signatory of each
company. At a duly called annual meeting of shareholders on July
9, 1999, the merger of the two companies was approved by a
majority of the shareholders entitled to vote (appearing either
in person or by proxy). On July 15, 1999, Articles of Merger
were filed with the Nevada Secretary of State, which formally
resulted in the redomicile of the registrant to the State of
Nevada.
SIGNATURE
Pursuant to the requirements of Section 13 or 15(d) of the
Securities Exchange Act of 1934, the Registrant has duly caused
this report to be signed on its behalf by the undersigned,
thereunto duly authorized.
INTERNET BUSINESS'S INTERNATIONAL, INC.
Dated: July 15, 1999 By: /s/ Albert R. Reda
Albert R. Reda
Chief Executive Officer
EXHIBIT INDEX
Exhibit No. Description
2 Agreement and Plan of Merger, dated July 1, 1999 (see
below).
AGREEMENT AND PLAN OF MERGER
BY AND BETWEEN
INTERNET BUSINESS'S INTERNATIONAL, INC. (NEVADA)
AND
INTERNET BUSINESS'S INTERNATIONAL, INC. (DELAWARE)
This Agreement and Plan of Merger ("Agreement") between Internet
Business's International, Inc. ("Internet Nevada" or "Surviving
Corporation") and Internet Business's International, Inc.
("Internet Delaware"), the two corporations acting by their
respective boards of directors and sometimes collectively
referred to as the "Constituent Corporations," is entered into
this 1st day of July, 1999 in Newport Beach, California, and will
have an effective date, if approved as set forth in Article I,
Section 1 hereafter, as set forth in Article I, Section 2
hereafter.
WHEREAS, Internet Nevada is a corporation organized and existing
under the laws of the State of Nevada, having been originally
incorporated on December 8, 1998 under the name International
Business Industries, Inc. (on June 30, 1999, the Articles of
Incorporation were amended to change the name to Internet
Business's International, Inc.), with its principal business
office to be located at 3900 Birch Street, Suite 111, Newport
Beach, California 92660;
WHEREAS, the authorized capital stock of Internet Nevada consists
of One Hundred Ninety-Nine Million (199,000,000) shares of common
stock, par value of One Tenth of One Cent ($0.001) per share,
none of which have been issued, and One Million (1,000,000)
shares of preferred stock, par value of One Tenth of One Cent
($0.001) per share, none of which have been issued;
WHEREAS, Nevada Revised Statutes 92A.190 confers upon Internet
Nevada the power to merge with a foreign corporation, and Nevada
Revised Statutes 92A.250 confers upon Internet Nevada the right
to issue its own shares in exchange for shares of any corporation
to be merged into Internet Nevada;
WHEREAS, Internet Delaware is a corporation organized and
existing under the laws of the State of Delaware, having been
originally incorporated on September 1, 1981 as International
Food & Beverage, Inc. (on February 17, 1999, the Articles of
Incorporation were amended to change the name to Internet
Business's International, Inc.);
WHEREAS, the authorized capital stock of Internet Delaware
consists of One Hundred Ninety-Nine Million (199,000,000) shares
of common stock, par value of One Cent ($0.01) per share, of
which One Hundred Seventy-Seven Million Three Hundred Two
Thounsand Nine Hundred Ninety-Seven (177,302,997) shares are
presently issued and outstanding, and One Million (1,000,000)
shares of preferred stock, par value of One Cent ($0.01) per
share, of which Twenty-Three Thousand Nine Hundred (23,900) are
presently issued and outstanding. Section 252(a) of the Delaware
General Corporation Law provides that a foreign corporation and a
domestic corporation may be merged and the foreign corporation
can be the surviving entity.
WHEREAS, the respective boards of directors of Internet Nevada
and Internet Delaware deem it desirable and in the best interests
of the corporations and their stockholders that the corporations
enter into this Agreement and merge pursuant to the terms and
conditions contained herein and for the sole purpose of
redomiciling the corporation into the State of Nevada; and
WHEREAS, in order to consummate this merger and in consideration
of the mutual benefits to be derived and the mutual agreements
contained herein, Internet Nevada and Internet Delaware approve
and adopt this Agreement.
NOW, THEREFORE, in consideration of the promises and mutual
agreements, provisions and covenants herein contained, it is
agreed by and between the parties that, in accordance with the
provisions of the laws of the State of Nevada, Internet Nevada
and Internet Delaware and shall be, and they are, as of the
Effective Date (as defined in Article I, Section 2 hereafter)
merged into a single surviving corporation, which shall be and is
Internet Nevada, one of the Constituent Corporations, which shall
continue its corporate existence and remain a Nevada corporation
governed by the laws of that state, all on the terms and
conditions set forth as follows:
ARTICLE I
MERGER
1. Shareholder Approval.
Within thirty (30) days from the date of this Agreement, or such
longer period as the parties hereto shall agree upon in writing,
this Agreement shall be submitted for approval and adoption,
pursuant to and in accordance with the applicable provisions of
the laws of the State of Nevada and the State of Delaware, to the
holders of common stock of Internet Nevada and to the holders of
common shares of Internet Delaware at duly held shareholders'
meetings or by unanimous written consent. This Agreement shall
be approved and adopted upon receiving the affirmative vote of
the holders of a majority of the common stock of Internet Nevada
outstanding on the record date established for determining the
holders of Internet Nevada common stock entitled to vote at such
Internet Nevada shareholders' meeting, and the affirmative vote
of a majority of the common shares of Internet Delaware
outstanding on the record date established for determining the
holders of common shares entitled to vote at such Internet
Delaware shareholders' meeting. If this Agreement shall be so
approved and adopted, Internet Nevada and Internet Delaware shall
immediately proceed to effectuate the merger of Internet Delaware
into Internet Nevada. If this Agreement shall not be so approved
and adopted, it shall, without any further action by the parties,
other than certification to the other Constituent Corporation of
the results of the vote by the Secretary or Clerk, as the case
may be, of the Constituent Corporation the shareholders of which
shall not have approved or adopted this Plan, be cancelled
without liability from either party to the other.
2. Filings After Shareholder Approval.
Under Section 252(a) of the Delaware General Corporation
Law, Internet Delaware will cease to exist and Internet Nevada
will possesses all the powers and property formerly possessed by
Internet Delaware upon approval of this Agreement by its
shareholders, and the filing with the Delaware Secretary of State
a certificate of merger, executed in accordance with Section 103,
stating the following: (a) the name and state or jurisdiction of
incorporation of each of the constituent corporations; (b) that
an agreement of merger or consolidation has been approved,
adopted, certified, executed and acknowledged by each of the
constituent corporations in accordance with this subsection; (c)
The name of the surviving or resulting corporation; (d) such
amendments or changes in the certificate of incorporation of the
surviving corporation as are desired to be effected by the
merger, or, if no such amendments or changes are desired, a
statement that the certificate of incorporation of the surviving
corporation shall be its certificate of incorporation; (e) that
the executed agreement of merger is on file at an office of the
surviving corporation and the address thereof; (f) that a copy of
the agreement of merger will be furnished by the surviving
corporation, on request and without cost, to any stockholder of
any constituent corporation; and (g) the agreement that Internet
Nevada may be served with process in Delaware in any proceeding
for enforcement of any obligation of any constituent corporation
in Delaware, as well as for enforcement of any obligation of the
surviving or resulting corporation arising from the merger or
consolidation, including any suit or other proceeding to enforce
the right of any stockholders as determined in appraisal
proceedings pursuant to Section 262, and shall irrevocably
appoint the Secretary of State as its agent to accept service of
process in any such suit or other proceedings and shall specify
the address to which a copy of such process shall be mailed by
the Secretary of State.
As soon as practicable after the approval of the merger by the
shareholders of Internet Nevada has been obtained and all other
conditions to the obligations of the parties to this agreement to
the effect the merger shall have been satisfied or waived,
Internet Nevada shall file with the Nevada Secretary of State a
duly executed Articles of Merger, as required by Nevada Revised
Statutes 92A.200, and take such other and future actions as may
be required by Nevada law to make the merger effective. The
merger of Internet Delaware into Internet Nevada shall become
effective upon the filing of the Articles of Merger with the
Nevada Secretary of State ("Effective Date").
3. Effect of Merger.
Internet Nevada shall succeed to, without other transfer, and
shall possess and enjoy all rights, privileges, powers and
franchises as well of a public as of a private nature, and be
subject to all restrictions, disabilities and duties of each of
two Constituent Corporations, and all and singular, the rights,
privileges, powers and franchises of each of corporations, and
all property, real, personal and mixed, and all debts to either
of Constituent Corporations on whatever account, as well for
stock subscriptions as all other things in action or belonging to
each of the corporations shall be vested in the Surviving
Corporation; and all property, rights, privileges, powers and
franchises, and all and every other interest shall be as
effectually property of the Surviving Corporation as they were of
Constituent Corporations, provided, that all rights of creditors
and all liens on any property of each of Constituent Corporations
shall be preserved unimpaired, limited to property affected by
the liens at time of merger, and all debts, liabilities and
duties of Constituent Corporations shall attach to the Surviving
Corporation, and may be enforced against it to the same extent as
if debts, liabilities and duties had been incurred or contracted
by it. If at any time the Surviving Corporation shall deem or be
advised that any further assignments or assurances in law or
things are necessary or desirable to vest, or to perfect or
confirm, of record or otherwise, in the Surviving Corporation the
title to any property acquired or to be acquired by reason of or
as a result of merger provided for by this Agreement, proper
officers and directors of each of Constituent Corporations shall
execute and deliver all proper deeds, assignments and assurances
in law and do all things necessary or proper to vest, perfect or
confirm title to property in the Surviving Corporation and
otherwise to carry out the purpose of this Agreement.
ARTICLE II
NAME AND CONTINUED CORPORATE EXISTENCE
OF SURVIVING CORPORATION
The corporate name of Internet Nevada, the Constituent
Corporation whose corporate existence is to survive this merger
and continue thereafter as the Surviving Corporation, and its
identity, existence, purposes, powers, objects, franchises,
rights and immunities shall continue unaffected and unimpaired by
the merger, and the corporate identity, existence, purposes,
powers, objects, franchises, rights and immunities of Internet
Delaware shall be wholly merged into Internet Nevada.
Accordingly, on the Effective Date the separate existence of
Internet Delaware, except insofar as continued by statute, shall
cease.
ARTICLE III
GOVERNING LAW
CERTIFICATE OF INCORPORATION
As stated, the laws of State of Nevada shall govern the Surviving
Corporation. From and after the Effective Date, the certificate
of incorporation of Internet Nevada attached as Appendix A (which
Appendix A represents the certificate of incorporation of
Internet Nevada filed in the office of the Secretary of State of
the State of Nevada on December 8, 1998) shall be and become the
certificate of incorporation of the Surviving Corporation. In
addition to the powers conferred upon it by law, the Surviving
Corporation shall have the powers set forth in Appendix A and be
governed by those provisions. From and after the Effective Date,
and until further amended as provided by law, Appendix A may be
certified, separate and apart from this Agreement, as the
certificate of incorporation of the Surviving Corporation.
ARTICLE IV
BYLAWS OF SURVIVING CORPORATION
From and after the Effective Date the present bylaws of Internet
Nevada shall be and become the bylaws of the Surviving
Corporation until they shall be altered, amended or repealed, or
until new bylaws shall be adopted, in accordance with the
provisions of law, the bylaws and the certificate of
incorporation of the Surviving Corporation.
ARTICLE V
DIRECTORS AND OFFICERS
1. Directors.
The number of directors of the Surviving Corporation, who
shall hold office until their successors have been duly elected
and shall have qualified, or as otherwise provided in the
certificate of incorporation of Internet Nevada or its bylaws,
shall be three (3) until changed by action of the Board of
Directors of the Surviving Corporation pursuant to its bylaws;
and the respective names of the first directors of the Surviving
Corporation are as follows:
Arnold Sock
Albert Reda
Louis Cherry
If, on or after the Effective Date, a vacancy shall for any
reason exist in the Board of Directors of the Surviving
Corporation, or in any of the offices, the vacancy shall be
filled in the manner provided in the certificate of incorporation
of Internet Nevada or in its bylaws.
2. Annual Meeting.
The first annual meeting of the shareholders of the Surviving
Corporation after the Effective Date shall be the annual meeting
provided by the bylaws of Internet Nevada for the year 2000.
3. Officers.
The first officers of the Surviving Corporation, who shall
hold office until their successors have been elected or appointed
and shall have qualified, or as otherwise provided in its bylaws,
are as follows:
Arnold Sock, President
Albert Reda, Secretary
Louis Cherry, Treasurer
ARTICLE VI
CAPITAL STOCK OF SURVIVING CORPORATION
The capitalization of the Surviving Corporation upon the
Effective Date shall be as set forth in the certificate of
incorporation of Internet Nevada.
ARTICLE VII
CONVERSION OF SHARES ON MERGER
Each of the shares of common stock, par value of One Cent ($0.01)
per share, of Internet Delaware outstanding on the Effective Date
("Internet Delaware Stock"), and all rights shall upon the
Effective Date be converted into one share of common stock, par
value One Tenth of One Cent ($0.001) per share of Internet Nevada
("Internet Nevada Stock"). At any time and from time to time
after the Effective Date, each holder of an outstanding
certificate or certificates representing shares of Internet
Delaware Stock shall be entitled, upon the surrender of the
certificate or certificates at the office of an transfer agent of
Internet Nevada to be designated by the Board of Directors of
Internet Nevada to receive in exchange a certificate or
certificates representing the number of shares of Internet Nevada
Stock into which the shares of Internet Delaware Stock
represented by the certificate or certificates surrendered shall
have been converted. No dividend shall be paid by Internet
Nevada to the holders of outstanding certificates expressed to
represent shares of Internet Delaware Stock, but, upon surrender
and exchange as provided, there shall be paid to the record
holder of the certificate or certificates for Internet Nevada
Stock issued in exchange therefor an amount with respect to each
such share of Internet Nevada Stock equal to all dividends which
shall have been paid or become payable to holders of record of
Internet Nevada Stock between the Effective Date and the date of
exchange.
ARTICLE VIII
ASSETS AND LIABILITIES
On the Effective Date, all property, real, personal and mixed,
and all debts due to either of the Constituent Corporations on
whatever account, as well for stock subscriptions as all other
choses in action, and all and every other interest of or
belonging to either of Constituent Corporations shall be taken by
and deemed to be transferred to and vested in the Surviving
Corporation without further act or deed; and all property and
every other interest shall be as effectually the property of the
Surviving Corporation as it was of the respective Constituent
Corporations, and the title to any real estate or any interest,
whether vested by deed or otherwise, in either of the Constituent
Corporations shall not revert or be in any way impaired by reason
of the merger; provided, however, that all rights of creditors
and all liens upon the property of either of the Constituent
Corporations shall be preserved unimpaired, and all debts,
liabilities, obligations and duties of the respective Constituent
Corporations shall attach to the Surviving Corporation, and may
be enforced against it to the same extent as if the debts,
liabilities, obligations and duties had been incurred or
contracted by it. Any action or proceeding pending by or against
either of the Constituent Corporations may be prosecuted to
judgment as if the merger had not taken place, or the Surviving
Corporation may be submitted in place of either of the
Constituent Corporations. The parties respectively agree that
from time to time, when requested by the Surviving Corporation or
by its successors or assigns, they will execute and deliver or
cause to be executed and delivered all deeds and instruments, and
will take or cause to be taken all further or other action, as
the Surviving Corporation may deem necessary or desirable in
order to vest in and confirm to the Surviving Corporation or its
successors or assigns title to and possession of all the property
and rights and otherwise carry out the intent and purposes of
this Agreement.
ARTICLE IX
CONDUCT OF BUSINESS BY CONSTITUENT CORPORATIONS
Prior to the Effective Date Internet Delaware shall conduct its
business in its usual and ordinary manner, and shall not enter
into any transaction other than in the usual and ordinary course
of such business except as provided. Without limiting the
generality of the above, Internet Delaware shall not, except as
otherwise consented to in writing by Internet Nevada or as
otherwise provided in this Agreement:
1. Issue or sell any shares of its capital stock in addition to
those outstanding on this date, except shares issued pursuant to
rights or options outstanding at that date;
2. Issue rights to subscribe to or options to purchase any
shares of its stock in addition to those outstanding on this
date;
3. Amend its certificate of incorporation or its bylaws;
4. Issue or contract to issue funded debt;
5. Declare or pay any dividend or make any other distribution
upon or with respect to its capital stock.
6. Repurchase any of its outstanding stock or by any other means
transfer any of its funds to its shareholders either selectively
or rateably, in return for value or otherwise, except as salary
or other compensation in the ordinary or normal course of
business;
7. Undertake or incur any obligations or liabilities except
current obligations or liabilities in the ordinary course of
business and except for liabilities for fees and expenses in
connection with the negotiation and consummation of the merger in
amounts to be determined after the Effective Date;
8. Mortgage, pledge, subject to lien or otherwise encumber any
realty or any tangible or intangible personal property;
9. Sell, assign or otherwise transfer any tangible assets of
whatever kind, or cancel any claims, except in the ordinary
course of business;
10. Sell, assign, or otherwise transfer any trademark, trade
name, patent or other intangible asset;
11. Default in performance of any material provision of any
material contract or other obligation;
12. Waive any right of any substantial value; or
13. Purchase or otherwise acquire any equity or debt security of
another corporation except to realize on an otherwise worthless
debt.
ARTICLE X
WARRANTIES OF THE CONSTITUENT CORPORATIONS
1. Representations and Warranties of Internet Delaware.
Internet Delaware covenants, represents and warrants to Internet
Nevada that:
a. It is on the date of this Agreement, and will be on the
Effective Date, (a) a corporation duly organized and existing and
in good standing under the laws of the jurisdiction of the State
of Delaware, (b) duly authorized under its articles, and under
applicable laws, to engage in the business carried on by it, and
(c) it is fully qualified to do business in the State of
Delaware;
b. All federal, state and local tax returns required to be filed
by it on or before the Effective Date will have been filed, and
all taxes shown to be required to be paid on or before the
Effective Date will have been paid;
c. It will use its best efforts to collect the accounts
receivable owned by it on or prior to the Effective Date and will
follow its past practices in connection with the extension of any
credit prior to the Effective Date;
d. All fixed assets owned by it and employed in its business are
of the type, kind and condition appropriate for its business and
will be operated in the ordinary course of business until the
Effective Date;
e. All leases now held by it are now and will be on the
Effective Date in good standing and not voidable or void by
reason of any default whatsoever;
f. During the period between January 1, 1999, and the date of
this Agreement, except as disclosed in writing to Internet
Nevada, it has not taken any action, or suffered any conditions
to exist, to any material or substantial extent in the aggregate,
which it has agreed in Article IX or this Article X of this
Agreement not to take or to permit to exist during the period
between the date of this Agreement and the Effective Date;
g. It has not been represented by any broker in connection with
the transaction contemplated, except as it has advised Internet
Nevada in writing; and
h. Its Board of Directors has, subject to the authorization and
approval of its stockholders, authorized and approved the
execution and delivery of this Agreement, and the performance of
the transactions contemplated by this Agreement.
i. Internet Delaware, in addition to other action which is has
covenanted, represented, and warranted to Internet Nevada that it
shall take, shall also:
(1) Use its best efforts to preserve its business organization
intact, to keep available to Internet Nevada the present officers
and employees of Internet Delaware, and to preserve for Internet
Nevada the relationships of Internet Delaware with suppliers and
customers and others having business relations with Internet
Delaware; and
(2) Not increase the compensation, wages, or other benefits
payable to its officers or employees, other than increases which
Internet Nevada has approved in writing.
2. Representations and Warranties of Internet Nevada.
Internet Nevada covenants, represents and warrants to Internet
Delaware that:
a. Internet Nevada is a corporation duly organized and existing
and in good standing under the laws of the State of Nevada and
has the corporate power to own its properties and to carry on its
business as now being conducted; and
b. Its Board of Directors has, subject to the authorization and
approval of its stockholders, authorized and approved the
execution and delivery of this Agreement, and the performance of
the transactions contemplated by this Agreement.
ARTICLE XI
CONSUMMATION OF MERGER
If the merger contemplated is completed, all expenses incurred in
consummating the plan of merger shall, except as otherwise agreed
in writing between the Constituent Corporations, be borne by
Internet Nevada. If the merger is not completed, each of the
Constituent Corporations shall be liable for, and shall pay, the
expenses incurred by it.
Notwithstanding shareholder authorization and at any time prior
to the filing, the filing and recording of this Agreement may be
deferred from time to time by mutual consent of the respective
boards of directors of each of the Constituent Corporations, and,
to the extent provided in (a), (b), (c) and (d) below, the merger
may be abandoned:
1. By the mutual consent of the respective Boards of Directors
of each of the Constituent Corporations;
2. At the election of the Board of Directors of Internet Nevada,
if (a) demands by shareholders for appraisal of their shares of
Internet Delaware Stock have been received from the holders of
twenty-five percent (25%) or more of the outstanding shares, or
(b) in the judgment of the Board any judgment is rendered
relating to any legal proceeding not commenced and the existence
of the judgment will or may materially affect the rights of
either Constituent Corporation to sell, convey, transfer or
assign any of its assets or materially interfere with the
operation of its business, renders the merger impracticable,
undesirable or not in the best interests of its shareholders;
3. By the Board of Directors of Internet Nevada if there shall
not have been submitted to Internet Nevada the opinion of counsel
for Internet Delaware, in form and substance satisfactory to
Internet Nevada, to the effect that (1) Internet Delaware is a
validly organized and duly existing corporation, (2) this
Agreement has been duly authorized by, and is binding upon,
Internet Delaware in accordance with its terms, and (3) all the
properties, estate, rights, privileges, powers and franchises of
Internet Delaware and all debts due to Internet Delaware shall be
transferred to and vested in Internet Nevada, as the Surviving
Corporation, without further act or deed, subject only to any
legal requirements for recording or filing any instruments of
conveyance, assignment or transfer, the giving of notice of any
such conveyance, assignment or transfer, consents of third
parties and governmental authorities to assignment of any
contract or lease, and other specified exceptions acceptable to
Internet Nevada;
4. At the election of the Board of Directors of Internet
Delaware if there shall not have been submitted to Internet
Delaware the opinion of counsel for Internet Nevada, in form and
substance satisfactory to Internet Delaware, to the effect that
(1) Internet Nevada is a validly organized and duly existing
corporation, (2) this Agreement has been duly authorized by, and
is binding upon, Internet Nevada in accordance with its terms,
(3) when Articles of Merger shall have been filed as provided in
this Agreement, the merger will become effective and all
liabilities and obligations of Internet Delaware will become the
liabilities and obligations of Internet Nevada, as the surviving
corporation, fully and without any further action by either
Constituent Corporation, (4) the Internet Delaware Stock will be
converted into Internet Nevada Stock, (5) the Internet Nevada
Stock into which the Internet Delaware Stock will be converted as
provided herein will be legally and validly authorized, exempt
from the registration requirements of Section 5 of the Securities
Act of 1933, as amended, ("Act'), provided by Section 3(a)(10)
thereof, exempt from the registration requirements of Nevada
Revised Statutes 90.460, as amended, provided by Nevada Revised
Statutes 90.530(11), and may be issued without a restrictive
legend pursuant to Rule 145(a)(2) under the Act if the shares of
Internet Delaware are otherwise unrestricted, and (6) when issued
will be validly issued, fully paid and nonassessable stock of the
surviving corporation;
5. At the election of the Board of Directors of either
Constituent Corporation if:
a. The warranties and representations of the other Constituent
Corporation contained in this Agreement shall not be
substantially accurate in all material respects on and as of the
date of election; or the covenants contained of the other
Constituent Corporation shall not have been performed or
satisfied in all material respects;
b. This Agreement shall not have been approved by the requisite
votes of shareholders of the Constituent Corporations on or
before August 1, 1999;
c. Prior to the merger (1) there shall have been filed in any
court or agency having jurisdiction a complaint or other
proceeding seeking to restrain or enjoin the merger contemplated
hereby, or (2) there shall have been presented to Internet
Delaware or Internet Nevada or any director or officer of either
of them any process, demand or request which, in the opinion of
counsel for either Constituent Corporation, offers reasonable
ground to believe that a complaint or bill in equity may be
forthcoming which, if successful, would restrain, enjoin or
dissolve the merger, and if, in either case, such Board of
Directors determines that abandonment and cancellation of this
Agreement is advisable in the best interests of the Constituent
Corporations, their shareholders, employees and customers;
d. If the Effective Date shall not have occurred by August 1,
1999, then, at the option of the Board of Directors of ABC it may
be deferred to a date on or after October 1, 1999. If the
Effective Date shall not have occurred by November 1, 1999, then,
at the option of the Board of Directors of either Constituent
Corporation the merger may be abandoned. In the event of the
abandonment of the merger pursuant to the foregoing provisions,
this Agreement shall become void and have no effect, without any
liability on the part of either of the Constituent Corporations
or its shareholders or directors or officers in respect of this
merger except the obligation of each Constituent Corporation to
pay its own expenses as provided in this Article XI.
ARTICLE XII
RESIDENT AGENT
The respective names of the county and the city within the county
in which the principal office of the surviving corporation is to
be located in the State of Nevada, the street and number of this
office, the name of the registered agent will, as of the
Effective Date, be as set forth in Article Second of the Articles
of Incorporation of the Surviving Corporation.
ARTICLE XIII
RIGHT TO AMEND ARTICLES OF INCORPORATION
The Surviving Corporation reserves the right to amend, alter,
change or repeal its Articles of Incorporation in the manner now
or later prescribed by statute or otherwise authorized by law;
and all rights and powers conferred in the certificate of
incorporation on shareholders, directors or officers of Internet
Nevada, or any other person, are subject to this reserved power.
ARTICLE XIV
MISCELLANEOUS
1. Access to Books and Records.
To enable Internet Nevada to coordinate the activities of
Internet Delaware into those of Internet Nevada on and after the
Effective Date, Internet Delaware shall, before the Effective
Date, afford to the officers and authorized representatives of
Internet Nevada free and full access to the plants, properties,
books and records of Internet Delaware, and the officers of
Internet Delaware will furnish Internet Nevada with financial and
operating data and other information as to the business and
properties of Internet Delaware as Internet Nevada shall from
time to time reasonably request. Internet Nevada shall, before
the Effective Date, afford to the officers and authorized
representatives of Internet Delaware such access, and Internet
Nevada's officers will furnish such data and information to
Internet Delaware, as may be reasonably required by Internet
Delaware for the preparation of its proxy statement in connection
with the meeting of shareholders to be called pursuant to section
1 of Article I of this Agreement. Internet Nevada and Internet
Delaware agree that, unless and until the merger contemplated by
this Agreement has been consummated, Internet Nevada and Internet
Delaware and their officers and representatives will hold in
strict confidence all data and information obtained from one
another as long as it is not in the public domain, and if the
merger provided for is not consummated as contemplated, Internet
Nevada and Internet Delaware will each return to the other party
all data as the other party may reasonably request.
2. Rights Cumulative; Waivers.
The rights of each of the parties under this Agreement are
cumulative. The rights of each of the parties hereunder shall
not be capable of being waived or varied other than by an express
waiver or variation in writing. Any failure to exercise or any
delay in exercising any of such rights shall not operate as a
waiver or variation of that or any other such right. Any
defective or partial exercise of any of such rights shall not
preclude any other or further exercise of that or any other such
right. No act or course of conduct or negotiation on the part of
any party shall in any way preclude such party from exercising
any such right or constitute a suspension or any variation of any
such right.
3. Benefit; Successors Bound.
This Agreement and the terms, covenants, conditions, provisions,
obligations, undertakings, rights, and benefits hereof, shall be
binding upon, and shall inure to the benefit of, the undersigned
parties and their heirs, executors, administrators,
representatives, successors, and permitted assigns.
4. Entire Agreement.
This Agreement contains the entire agreement between the parties
with respect to the subject matter hereof. There are no
promises, agreements, conditions, undertakings, understandings,
warranties, covenants or representations, oral or written,
express or implied, between them with respect to this Agreement
or the matters described in this Agreement, except as set forth
in this Agreement. Any such negotiations, promises, or
understandings shall not be used to interpret or constitute this
Agreement.
5. Assignment.
Neither this Agreement nor any other benefit to accrue hereunder
shall be assigned or transferred by either party, either in whole
or in part, without the written consent of the other party, and
any purported assignment in violation hereof shall be void.
6. Amendment.
This Agreement may be amended only by an instrument in writing
executed by all the parties hereto.
7. Severability.
Each part of this Agreement is intended to be severable. In the
event that any provision of this Agreement is found by any court
or other authority of competent jurisdiction to be illegal or
unenforceable, such provision shall be severed or modified to the
extent necessary to render it enforceable and as so severed or
modified, this Agreement shall continue in full force and effect.
8. Section Headings.
The Section headings in this Agreement are for reference purposes
only and shall not affect in any way the meaning or
interpretation of this Agreement.
9. Construction.
Unless the context otherwise requires, when used herein, the
singular shall be deemed to include the plural, the plural shall
be deemed to include each of the singular, and pronouns of one or
no gender shall be deemed to include the equivalent pronoun of
the other or no gender.
10. Further Assurances.
In addition to the instruments and documents to be made, executed
and delivered pursuant to this Agreement, the parties hereto
agree to make, execute and deliver or cause to be made, executed
and delivered, to the requesting party such other instruments and
to take such other actions as the requesting party may reasonably
require to carry out the terms of this Agreement and the
transactions contemplated hereby.
11. Notices.
Any notice which is required or desired under this Agreement
shall be given in writing and may be sent by personal delivery or
by mail (either a. United States mail, postage prepaid, or b.
Federal Express or similar generally recognized overnight
carrier), addressed as follows (subject to the right to designate
a different address by notice similarly given):
To Internet Nevada:
Shawn F. Hackman, Esq.
Shawn F. Hackman, P.C.
3360 West Sahara Avenue, Suite 200
Las Vegas, Nevada 89102
To Internet Delaware:
Albert Reda, Secretary
Internet Business's International, Inc.
3900 Birch Street, Suite 111
Newport Beach, California 92660
12. Governing Law.
This Agreement shall be construed and enforced under, in
accordance with, and governed by, the laws of the State of
Nevada.
13. Consents.
The person signing this Agreement on behalf of each party hereby
represents and warrants that he has the necessary power, consent
and authority to execute and deliver this Agreement on behalf of
such party.
14. Termination of Agreement.
This Agreement shall terminate on the Effective Date unless all
actions required under this Agreement have not been fully
performed.
15. Survival of Provisions.
The representations and warranties contained in Article X of this
Agreement and any liability of one Constituent Corporation to the
other for any default under the provisions of Articles IX or X of
this Agreement, shall expire with, and be terminated and
extinguished by, the merger under this Agreement on the Effective
Date.
16. Execution in Counterparts.
This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original and all of which
together shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered as of the date first above written.
INTERNET NEVADA:
By: /s/ Arnold Sock
Arnold Sock, President
INTERNET DELAWARE:
By: /s/ Arnold Sock
Arnold Sock, President
