SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of report (Date of earliest event reported) May 22, 1998
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AMBASSADORS INTERNATIONAL, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware
(State or Other Jurisdiction of Incorporation)
0-26420 91-1688605
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(Commission File Number) (I.R.S. Employer
Identification No.)
Dwight D. Eisenhower Building, 110 So. Ferrall St.,
Spokane, Washington 99202
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(Address of Principal Executive Offices) (Zip Code)
(509) 534-6200
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(Registrant's Telephone Number, Including Area Code)
Not Applicable
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(Former Name or Former Address, if Changed
Since Last Report)
<PAGE>
Item 2. Other Events
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On May 22, 1998 (the "Closing Date"), Ambassador Performance Group,
Inc., a Delaware corporation ("APG"), a wholly-owned subsidiary of
Ambassadors International, Inc. (the "Company"), acquired all of the
outstanding shares of common stock (the "Shares") of Incentive
Associates, Inc., a California corporation ("IAI"), pursuant to a
certain Agreement and Plan of Merger dated May 22, 1998 by and among
APG, the Company, IAI, Wayne Wright and Russ Medevic (the latter two
individuals collectively referred to as the "Selling Shareholders").
The Shares were acquired for $4,300,000 as follows: $1,800,000 paid
in cash (subject to adjustment as described below) and $2,500,000
delivered in the form of 85,672 shares of the Company's common stock.
The Selling Shareholders were granted certain "piggyback" registration
rights with respect to the shares they received.
For each of the twelve-month periods ending March 31, 1999, 2000,
2001, and 2002, the Company will be required to make additional
payments to the Selling Shareholders in the following amounts: (i) for
the first year, an amount equal to 80% of IAI's revenues from clients,
prospects and account executives as of the Closing Date, less program
costs ("Gross Profits"), between $2,000,000 and $3,200,000, 50% of the
Gross Profits between $3,200,000 and $4,000,000, and 15% of the Gross
Profits in excess of $4,000,000; and (ii) for each of the second,
third and fourth years, 60% of the Gross Profits between $2,200,000
and $3,000,000, 50% of the Gross Profits between $3,000,000 and
$4,000,000, and 15% of the Gross Profits in excess of $4,000,000. Each
such additional payment will be paid one-half in cash and one-half in
the Company's common stock at its market value on the date of such
payment.
The cash portion of the purchase price is subject to adjustment as
follows. Within six months after the Closing Date, a determination
will be made, as of April 1, 1998, as to the difference between (i)
the sum of cash, prepaid expenses and collected accounts receivable of
IAI and (ii) the sum of the liabilities and deposits of IAI. If the
amount calculated in (i) exceeds the amount calculated in (ii), the
Company will pay the difference to the Selling Shareholders; if the
amount calculated in (ii) exceeds the amount calculated in (i), the
Selling Shareholders will pay the difference to the Company. Of the
$1,800,000 cash portion of the purchase price required to be paid by
the Company on the Closing Date, there was a "holdback" of $50,000
until the above calculations are finalized.
The purchase price for the Shares was arrived at through arms' length
negotiations between the Company and the Selling Shareholders, neither
of whom is an affiliate of the Company. The cash portion of the
purchase price came from funds raised in previous public offerings of
the Company's common stock.
<PAGE>
IAI has been in the business of providing travel incentive, business
meeting and conference planning services from its offices in Orange
County, California. Its operations will be consolidated with those of
APG in Newport Beach, California.
The Selling Shareholders have each entered into five-year employment
agreements and non-competition agreements with APG, pursuant to which,
among other things, each was granted, as of the Closing Date, options
to purchase 7,500 shares of the Company's Common Stock, and the
opportunity to receive further options based on achievement of certain
incentive targets.
Item 7. Financial Statements, Pro Forma Financial Information and
Exhibits
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(c) Exhibits
2.5 Agreement and Plan of Merger, dated May 22, 1998 by and
among Ambassadors International, Inc., Ambassador
Performance Group, Inc., Incentive Associates, Inc., Wayne
Wright and Russ Medevic.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf
by the undersigned hereunder duly authorized.
Dated: June 4, 1998
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AMBASSADORS INTERNATIONAL, INC.
By /s/ John A. Ueberroth
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John A. Ueberroth, President
<PAGE>
EXHIBIT 2.5
AGREEMENT AND PLAN OF MERGER
----------------------------
THIS AGREEMENT AND PLAN OF MERGER ("Agreement") is made and entered
into this 22nd day of May, 1998 ("Closing Date"), by and among
AMBASSADORS INTERNATIONAL, INC. ("AII"), a Delaware corporation,
AMBASSADOR PERFORMANCE GROUP, INC. ("APG"), a Delaware corporation,
INCENTIVE ASSOCIATES, INC. ("IAI"), a California corporation, WAYNE
WRIGHT ("Wright") and RUSS MEDEVIC ("Medevic").
A. Wright and Medevic (individually, "Shareholder," and
collectively, "Shareholders") are the beneficial and record
owners of 100% of the issued and outstanding shares of the
capital stock of IAI ("IAI Shares").
B. AII is the beneficial and record owner of all of the issued and
outstanding shares of the capital stock of APG.
C. The respective Boards of Directors of AII and IAI deem it
advisable and in the best interest of AII and IAI, and their
respective shareholders, that IAI be merged with and into APG
("Merger"), upon the terms and subject to the conditions set
forth in this Agreement.
D. As a part of the Merger transaction, the Shareholders will
receive, in exchange for the IAI Shares, cash and common stock
of AII upon the terms and conditions contained herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree
as follows:
ARTICLE 1
THE MERGER
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1.1 DELIVERY AND FILING OF ARTICLES OF MERGER; EFFECTIVE TIME OF
MERGER. Notwithstanding anything to the contrary contained in
this Agreement and notwithstanding the filing date of the
Articles of Merger (as provided below), the Merger shall be
deemed effective as of April 1, 1998 ("Effective Date") and APG
and IAI will cause Articles of Merger, in substantially the form
attached hereto as Exhibit 1.1 ("Articles of Merger"), to be
signed, verified and delivered to the Secretary of State of
California as provided in the California General Corporation
Law, and the Secretary of State of Delaware as provided in the
Delaware Corporation Law, as soon as possible after the
execution of this Agreement. The separate existence of IAI
shall cease and IAI shall be merged with and into APG. APG,
which shall be the party surviving the Merger, is sometimes
referred to herein as the "Surviving Corporation" and, as such,
as provided under the provisions of this Agreement, will succeed
to all rights, assets, liabilities and obligations of IAI
effective as of the Effective Date.
<PAGE>
1.2 CERTIFICATE OF INCORPORATION. The Certificate of Incorporation
of APG shall be and, until further amended as provided by law,
continue to be the Certificate of Incorporation of the Surviving
Corporation.
1.3 BYLAWS. The Bylaws of APG shall be and, until duly amended as
therein provided, continue to be the Bylaws of the Surviving
Corporation.
1.4 DIRECTORS. The members of the Board of Directors of APG shall
constitute the Board of Directors of the Surviving Corporation
until their successors shall have been duly elected and
qualified as provided in the Bylaws of the Surviving
Corporation.
1.5 OFFICERS. The officers of APG shall constitute the officers of
the Surviving Corporation until their successors shall have been
duly elected and qualified as provided in the Bylaws of the
Surviving Corporation.
1.6 EFFECT OF MERGER. As a result of the Merger, the separate
existence of IAI shall cease, and the Surviving Corporation
shall possess all the rights, privileges, immunities, powers and
franchises of a public and of a private nature being subject to
all of the restrictions, disabilities, liabilities and duties of
IAI, the rights, privileges, powers and franchises and
immunities of IAI, all property (whether real, personal or
mixed) and all debts due on whatever account, as well as stock
subscriptions, and all other things in action or belonging to or
due to IAI shall be vested in the Surviving Corporation without
further act or deed; and the title to any real estate, or any
interest therein, vested in IAI shall not revert or be in any
way impaired by reason of the Merger.
1.7 FURTHER ASSURANCES. If, at any time after the Closing Date, the
Surviving Corporation shall reasonably decide that any further
assignments, assumptions or assurances in law or any other
things are necessary or desirable to vest, perfect or confirm of
record or otherwise, in the Surviving Corporation, title to any
property or right of IAI acquired or to be acquired by reason or
as a result of the Merger, the proper officers and directors of
the Surviving Corporation shall, in the name of IAI, execute and
deliver all deeds, assignments and assurances in law and do all
things reasonably necessary or proper to vest, perfect and
confirm title to such property or rights in the Surviving
Corporation and otherwise to carry out the terms and conditions
of this Agreement.
1.8 TAX-FREE REORGANIZATION. The parties hereto acknowledge and
agree that the transaction contemplated herein is intended to
qualify as a tax-free reorganization under Section 368(a) of the
Internal Revenue Code of 1986, as in effect on the Closing Date.
<PAGE>
ARTICLE 2
CONVERSION OF SHARES
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2.1 CONVERSION OF SHARES; PURCHASE PRICE. At the Closing (as
defined in Section 9.1), by virtue of the Merger, the IAI Shares
shall automatically convert into the right of the holders of the
IAI Shares to receive, from AII and/or APG, the following:
2.1.1 The sum of (i) $4,300,000, payable in cash or check and
common stock of AII as provided below, (ii) an amount
equal to the Cash Book Value (as that term is defined
below) of IAI as of the Effective Date, except that if
the Cash Book Value is a negative amount, then such
negative amount shall be deducted from the cash portion
in accordance with the terms below, and (iii) the Earn-
Out Payments (as that term is defined and calculated
below). All of the foregoing shall be paid as follows.
2.1.2 The amount of $4,300,000 provided for in Section
2.1.1(i) above shall be paid $1,800,000 in cash at the
Closing, less $50,000 ("Holdback"), and $2,500,000 by
way of the issuance of shares of common stock of AII
("AII Shares") in an amount equal to $2,500,000 divided
by the average of the closing prices of AII's common
stock on NASDAQ for the ten (10) trading days
immediately preceding the earlier of the date of any
public announcement regarding the Merger or the Closing
Date, but in no event less than $29.00 or more than
$30.00. The cash and AII Shares provided for in this
Section 2.1.2 shall be allocated among all of the
shareholders of IAI in proportion to their ownership of
the IAI Shares.
2.1.3 For purposes of this Agreement, the term Cash Book Value
shall be (i) the sum of cash, prepaid expenses and
accounts receivable of IAI as of the Effective Date, but
only to the extent that such accounts receivable are
collected within six (6) months after the Closing Date,
less (ii) the sum of all liabilities of IAI as of the
Effective Date, all deposits received by IAI through the
Effective Date and any and all accrued and unpaid
expenses through the Effective Date, including but not
limited to unpaid compensation, unpaid vacation pay,
sick pay and the value of unused vacation time. On or
before six (6) months after the Closing Date, APG and
the Shareholders shall determine the Cash Book Value of
IAI as of the Effective Date. If the Cash Book Value is
a positive amount, then APG shall immediately pay to the
Shareholders the amount of the Holdback plus the amount
of the Cash Book Value. If the Cash Book Value is a
negative amount and is less than the amount of the
Holdback, then APG shall deduct such amount from the
<PAGE>
Holdback and remit the difference to the Shareholders.
If the Cash Book Value is a negative amount and is more
than the Holdback, the entire amount of the Holdback
shall be retained by APG and the difference shall
forthwith be paid by the Shareholders to APG. To the
extent that any of the accounts receivable are not
collected within six (6) months after the Closing Date
and, therefore, not included in Cash Book Value, such
uncollected accounts receivable shall be assigned to the
Shareholders. The payments provided for in this Section
2.1.3, as well as the payments provided for in Section
2.1.4 below, shall be allocated among all of the
shareholders of IAI in proportion to their ownership of
the IAI Shares.
2.1.4 For each of the twelve month periods ending March 31,
1999, 2000, 2001 and 2002 ("Earn-Out Years"), APG shall
pay to the Shareholders earn-out payments ("Earn-Out
Payments") based upon Gross Profits (as that term is
defined below) upon the following terms and conditions:
(i) For the first Earn-Out Year, an amount equal to
eighty percent (80%) of the Gross Profits between
$2,000,000 and $3,200,000, fifty percent (50%) of
the Gross Profits between $3,200,000 and
$4,000,000, and fifteen percent (15%) of the Gross
Profits in excess of $4,000,000.
(ii) For each of the second, third and fourth Earn-Out
Years, sixty percent (60%) of the Gross Profits
between $2,200,000 and $3,000,000, fifty percent
(50%) of the Gross Profits between $3,000,000 and
$4,000,000, and fifteen percent (15%) of the Gross
Profits in excess of $4,000,000.
(iii) Each Earn-Out Payment shall be paid one-half (1/2)
in cash and one-half (1/2) in shares of common
stock of AII. Such shares shall be valued at the
average of the closing prices of AII's common
stock on NASDAQ for the last fifteen (15) trading
days of the Earn-Out Year for which such payment
is made.
(iv) For purposes of this Section 2.1.4, the term
"Gross Profits" for any Earn-Out Year shall mean
all revenues of APG's Laguna Hills Business (as
that term is defined below) actually received by
APG during such Earn-Out Year less all direct
program costs. For purposes of this Agreement,
the term "Laguna Hills Business" shall mean the
sales generated from (a) those persons named on
Exhibit 2.1.4(a) attached hereto and (b) those
clients and prospective clients identified on
Exhibit 2.1.4(b) attached hereto. Exhibit
<PAGE>
2.1.4(b) shall separately identify existing
clients and prospective clients. In determining
the Gross Profits for the Earn-Out Year ending
December 31, 1998, there shall be included therein
the Gross Profits of IAI for the period January 1,
1998 through the Closing Date. The Earn-Out
Payment for any Earn-Out Year shall be paid within
three (3) months after the end of the Earn-Out
Year.
2.2 DELIVERY OF PURCHASE PRICE AND SHARE CERTIFICATES. At the
Closing, the stock certificates representing the IAI Shares
shall be automatically canceled, and the Shareholders shall
deliver to AII or APG all such stock certificates. Upon
delivery of such certificates, AII shall at the Closing deliver
to the Shareholders the cash payments as provided for above.
The certificates evidencing the AII Shares shall be delivered
within ten (10) business days after the Closing Date.
2.3 REGISTRATION RIGHTS. If, during the one (1) year period
immediately following the issuance of any AII common stock under
this Article 2, AII completes an underwritten public offering of
its common stock, which offering includes for sale shares of AII
common stock which are owned by other shareholders of AII
("Selling Stockholders"), each of the Shareholders shall have
the right to include in such offering that percentage of shares
of common stock of AII issued during the previous year to such
Shareholder which is the same percentage determined by dividing
the number of shares sold by the Selling Stockholders by the
total number of shares then owned by the Selling Stockholders,
but in no event shall the percentage be less than the percentage
of John Ueberroth's shares which are included in the offering.
In order for a shareholder of IAI to include his shares in such
offering, he shall enter into an agreement with the underwriter
upon the same terms and conditions contained in the agreements
between the underwriter and the Selling Stockholders. In
addition, AII and such shareholder shall agree upon the same
indemnification provisions agreed upon between Ambassadors and
the Selling Stockholders.
ARTICLE 3
OTHER AGREEMENTS
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3.1 EMPLOYMENT AGREEMENTS. At the Closing, the Surviving
Corporation and each of the Shareholders shall enter into an
Employment Agreement ("Employment Agreement") in the form of
Exhibit 3.1 attached hereto.
3.2 NON-COMPETITION AGREEMENTS. At the Closing, the Surviving
Corporation and each of the Shareholders shall enter into a Non-
Competition Agreement ("Non-Competition Agreement") in the form
of Exhibit 3.2 attached hereto.
<PAGE>
3.3 INVESTMENT REPRESENTATIONS. At the Closing, each of the
Shareholders shall execute and deliver to AII investment
representations in the form of Exhibit 3.3 attached hereto.
3.4 ASSIGNMENT OF CLAIM. AII and APG hereby assigns to the
Shareholders all of IAI's right, title and interest in and to
IAI's claim against Certified Grocers of California, effective
as of the Effective Date. The Shareholders agree that they
shall be responsible for all costs of collection (including
attorneys' fees incurred after the Effective Date) incurred in
connection therewith as well as any counterclaim or cross-
complaint filed in connection therewith.
3.5 TERMINATION OF LEASE. The lease between IAI and Wright for the
premises located at 22972 Mill Creek Drive, Laguna Hills,
California 92653, shall be as of August 31, 1998 and,
notwithstanding anything to the contrary contained in this
Agreement or such lease, neither IAI, AII nor APG shall have any
obligation or liability under said lease other than the payment
of rent through August 31, 1998.
3.6 POST EFFECTIVE DATE PROFITS. Within three (3) months after the
Closing Date, APG shall prepare a balance sheet of IAI as of the
Closing Date ("Closing Balance Sheet") and a profit and loss
statement of IAI for the period from the Effective Date through
the Closing Date ("Closing Earnings Statement"). IAI and the
Shareholders agree, represent and warrant that the profits
earned by IAI during the period between the Effective Date and
the Closing Date ("Transition Period") will be calculated as if
APG was the owner of the business during the Transition Period.
In connection therewith, in preparing the Closing Balance Sheet
and the Closing Earnings Statement, any and all salary,
compensation and other payments and reimbursements made to or on
behalf of the Shareholders during the Transition Period shall be
calculated not as to the actual payments and reimbursements but,
rather, as if their Employment Agreements, as provided for in
Section 3.1 above, were in effect during that period and,
furthermore, there shall not be any provision for bonuses either
before or after the Effective Date or any provision for employee
compensation for services rendered prior to the Effective Date,
except to the extent reflected in the Reference Balance Sheet,
even though such services may benefit contracts which are not
completed as of the Effective Date. To the extent that the
profits earned by IAI during the Transition Period are not
reflected in the Closing Balance Sheet and the Closing Earnings
Statement, then the Shareholders shall forthwith pay such amount
to APG. In other words, the net profits earned by IAI during
said period should have remained within IAI and not distributed
or paid out other than for operating expenses in the ordinary
course of business.
<PAGE>
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF
THE SHAREHOLDERS AND IAI
---------------------------------
Each of the Shareholders and IAI, jointly and severally, represent and
warrant to AII and APG that the following statements are true, correct
and complete as of the Effective Date and as of the date of this
Agreement and will be true, correct and complete as of the Closing
Date:
4.1 EXECUTION AND DELIVERY OF AGREEMENT. IAI and the Shareholders
have duly executed and delivered this Agreement, and this
Agreement constitutes the valid and binding obligation of each
of them enforceable against each such party in accordance with
its terms. The execution and delivery of this Agreement and the
consummation of the transactions contemplated by this Agreement
have been duly authorized by the Board of Directors and the
unanimous vote of the shareholders of IAI.
4.2 COMPLIANCE, CONSENTS AND APPROVALS. Except as described in
Exhibit 4.2, the execution and delivery of this Agreement by IAI
and the Shareholders, the performance by IAI and the
Shareholders of their obligations under this Agreement and the
consummation by IAI and the Shareholders of the transactions
contemplated by this Agreement do not require any of them to
obtain any consent, approval or action of, or make any filing
with or give any notice to, any corporation, person or firm or
any public, governmental or judicial authority nor will the
consummation of the transactions hereby result in the breach of
any of the terms, provisions, or conditions of, or constitute a
default under or violate, IAI's Articles of Incorporation,
Bylaws or any agreement, lease, license or other document or
undertaking, oral or written, to which IAI and/or any of the
Shareholders is bound or by which any of their properties or
assets may be affected.
4.3 ORGANIZATION, STANDING AND AUTHORITY. IAI is a corporation duly
organized, validly existing and in good standing under the laws
of the State of California and has all requisite power and
authority to own, lease and operate its assets, properties and
business and to carry on its business as now being conducted.
IAI is not required to be qualified or otherwise authorized as a
foreign corporation to transact business in any jurisdiction
other than California and no other jurisdiction has claimed, in
writing or otherwise, that IAI is required to qualify or
otherwise be licensed therein. IAI does not presently file any
franchise, income or other tax returns in any jurisdiction other
than California.
4.4 CAPITALIZATION AND TITLE. The authorized capital stock of IAI
is 1,000 shares of common stock with a par value of $1.00 per
share, of which 720 shares (referred to herein as the "IAI
<PAGE>
Shares") are validly issued and outstanding and are fully paid
and nonassessable, with no personal liability attaching to the
ownership thereof. The Shareholders are all of the shareholders
of IAI, and no other person, firm, corporation or entity owns
any shares of capital stock of IAI. Each of the shareholders of
IAI is the owner of the number of IAI Shares set forth opposite
his name on Exhibit 4.4 attached hereto, and each has good and
marketable title thereto and the absolute right to sell, assign,
transfer, convey and deliver the same to APG, free and clear of
liens, agreements, pledges, mortgages or encumbrances of any
kind or nature. There are no stock restriction agreements or
voting trust agreements or proxies affecting the IAI Shares, nor
are there any outstanding subscriptions, warrants, calls,
options, rights, commitments or agreements by which IAI or any
of the shareholders of IAI are bound calling for the issuance,
repurchase, or redemption of any class of shares of IAI's
capital stock, or securities convertible or exchangeable,
actually or contingently, into any class of shares of IAI's
capital stock.
4.5 EQUITY INTERESTS. IAI has no subsidiary which it owns or
controls, and has no equity interest, whether of record or
beneficial or otherwise, in any corporation, partnership,
limited liability company, joint venture or other business
association or entity.
4.6 CORPORATE RECORDS. The minute books and capital stock records
of IAI are accurate and complete. All formal meetings and
actions of stockholders and directors of IAI heretofore held are
reflected in minutes which appear in said minute books and were
duly held. Copies of consents and of minutes of any meetings
and formal actions of the directors or shareholders of IAI held
after the date hereof and on or prior to the Closing will be
made available to AII and its counsel immediately after such
meeting or action, as the case may be, and in all events prior
to the Closing. The copies of the Articles of Incorporation and
Bylaws of IAI contained in said minute books are true, correct
and complete, as amended and existing at the date hereof. The
books of account and other records of IAI are complete and
correct and accurately present and reflect all of the
transactions entered into by IAI. Exhibit 4.6 attached hereto
sets forth a true and complete listing of IAI's existing
officers, directors, bank accounts, safe deposit boxes and the
names of all persons authorized to draw thereon or have access
thereto.
4.7 FINANCIAL STATEMENTS. The financial statements of IAI as at and
for the fiscal years ended March 31, 1996, 1997 and 1998 (copies
of which statements are collectively attached hereto as Exhibit
4.7), are true and correct, having been prepared in accordance
with generally accepted accounting principles, are consistent
with practices followed for prior periods, and present fairly
the financial condition of IAI at such respective dates and the
results of its operations for each of the respective periods.
<PAGE>
Such financial statements are hereinafter collectively referred
to as the "IAI Financial Statements", and the balance sheet
included therein as at March 31, 1998, is hereinafter referred
to as the "Reference Balance Sheet".
4.8 ABSENCE OF UNDISCLOSED LIABILITIES. Except to the extent
reflected or reserved in the Reference Balance Sheet, IAI as of
such date had no liabilities of any nature, whether accrued,
absolute, contingent or otherwise, including without limitation,
tax liabilities due or to become due and whether incurred in
respect to or measured by IAI's income for any period prior to
the date of this Agreement, or arising out of transactions
entered into or any state of facts existing prior thereto. None
of the Shareholders nor IAI know or have reasonable grounds to
know of any basis for the assertion against IAI, as of the date
of the Reference Balance Sheet, of any liabilities of any nature
or in any amount not fully reflected or reserved against in the
Reference Balance Sheet. Between the date of the Reference
Balance Sheet and the date hereof, IAI has not, and between the
date hereof and Closing, IAI will not have, incurred any
liabilities, debts or obligations of any nature whatsoever other
than those incurred in the ordinary course of business during
such respective period.
4.9 ABSENCE OF CERTAIN CHANGES. Except as indicated in Exhibit 4.9,
since March 31, 1998 and through the Closing Date, there has not
been and there will not be any:
4.9.1 transaction by IAI except in the ordinary course of
business;
4.9.2 any capital expenditure by IAI or lease of capital
equipment;
4.9.3 material adverse change in the condition (financial or
otherwise), liabilities, assets, business or prospects
of IAI;
4.9.4 destruction, damage to or loss of any asset of IAI
(whether or not covered by insurance) which materially
and adversely affects the condition (financial or
otherwise), business or prospects of IAI;
4.9.5 labor trouble, strike or other event or condition of any
character materially and adversely affecting the
condition (financial or otherwise), business or
prospects of IAI;
4.9.6 change in the accounting methods or practices
(including, without limitation, any change in
depreciation or amortization policies or rates) of IAI;
4.9.7 reevaluation by IAI of any of its assets;
<PAGE>
4.9.8 declaration, setting aside or payment of a dividend or
other distribution in respect of, or any direct or
indirect redemption, repurchase, or other acquisition by
IAI, of any of its capital stock of any class or of any
other of its securities;
4.9.9 increase in the salary or other compensation payable or
to become payable by IAI to any of its respective
officers, directors or employees, the adoption of a plan
or agreement or amendment to any plan or agreement
providing any new or additional "fringe benefits", or
the declaration or payment by IAI of a bonus or other
additional salary or compensation to any such person or
the contribution to any profit sharing or defined
benefit plan;
4.9.10 any sale or transfer of any asset of IAI, except in the
ordinary course of business;
4.9.11 amendment other than in the ordinary course of business
or termination of any contract or other agreement to
which IAI is a party;
4.9.12 loan by IAI to any person or entity, or guaranty by IAI
of any loan;
4.9.13 payment by IAI of any loan or guaranty by IAI of any
loan;
4.9.14 cancellation by IAI without full payment, of any note,
loan, or other obligation owing to IAI;
4.9.15 mortgage, pledge or other encumbrance of any asset of
IAI;
4.9.16 incurrence of, assumption of, or taking any properties
subject to, any liability, except for liabilities
incurred or assumed or property taken in IAI's ordinary
course of business and consistent with past practice;
4.9.17 waiver or release of any right or claim of IAI, except
in the ordinary course of business;
4.9.18 amendment of the Articles of Incorporation, Bylaws or
other charter documents of IAI, or issuance or creation
of any warrants, obligations, subscriptions, options,
convertible securities or other commitments under which
any additional shares of capital stock or other
securities or other equity interest of IAI may be
directly or indirectly authorized, issued, or
transferred from treasury;
4.9.19 event or condition of any character which has or might
reasonably be expected to have a material and adverse
<PAGE>
effect on the financial condition, business, assets or
prospects of IAI; or
4.9.20 agreement, commitment by or obligation of IAI to do, or
undertaking which may cause IAI to do, any of the
matters described in the preceding clauses (1) through
(20).
4.10 COPIES OF DOCUMENTS; NO DEFAULT. The Shareholders have made
available to APG true and complete copies of all contracts or
other agreements, whether or not made in the ordinary course of
business, to which IAI is a party. Each such contract and other
agreement is valid, subsisting, in full force and effect and
binding upon the parties thereto in accordance with its terms,
and IAI is not in default under any of them and neither IAI nor
any of the Shareholders has received any notice from any other
party to such contract(s) alleging that such a default exists or
has reason to believe that IAI will not be able to fulfill, when
due, all of its obligations which remain to be performed after
the date hereof. No other party to any or all of such contracts
or agreements is in default thereunder and neither IAI nor any
of the Shareholders is aware of any condition or event which
after notice or lapse of time or both would constitute a default
by any party thereto. None of such contracts or agreements will
expire or be terminated or be subject to any modification of
terms or conditions upon the consummation of the Merger.
Exhibit 4.10 sets forth a list of all such contracts and other
agreements.
4.11 ASSETS. IAI owns outright and has good title to all of its
assets and properties, free and clear of any lien or other
encumbrance, except as specifically stated in the Reference
Balance Sheet. All of the property (whether real or personal,
owned or leased) used by IAI has been reasonably maintained, is
in good operating condition allowing for normal wear and tear,
and is fit for the purposes for which they are being utilized.
4.12 REAL ESTATE AND LEASES. IAI does not own any real property.
IAI does not have any options or contractual obligations to
purchase or acquire any interest in real property. All leases,
subleases or other agreements under which IAI is lessee of any
real or personal property are described on Exhibit 4.12 and true
and complete copies of all such agreements have been made
available to APG. Such leases, subleases and other agreements
are in full force and effect and neither IAI nor any of the
other parties are in default thereunder and IAI has not received
any notice of any default thereunder.
4.13 INTANGIBLE PROPERTY AND COMPUTER SOFTWARE. IAI owns and/or has
registered or has valid rights to use all trademarks, trade
names, designs, formulas, know-how, processes, trade secrets,
copyrights and computer software which are necessary for the
conduct of its business as now being conducted. IAI is not
infringing the rights of others with respect to any of the
<PAGE>
foregoing and neither IAI nor any of the Shareholders has
received written notice that IAI is infringing upon any existing
or pending trademark, trade name registration or copyright. IAI
does not own any patents, patent licenses, permits with respect
to patents, copyrights, or any applications therefor. Exhibit
4.13 is a list of all trademarks, trade names, copyrights and
computer software created by or for IAI's specific use, whether
or not now being used.
4.14 LITIGATION AND REGULATION. There are no litigations, suits or
governmental proceedings, administrative or judicial, pending,
nor to the knowledge of the Shareholders or IAI threatened,
against the Shareholders or IAI; and no strike is pending, or to
the knowledge of the Shareholders or IAI threatened, against IAI
by its employees or any labor organization claiming to represent
such employees. IAI is not subject to or in violation or
default in any material respect of, any order, writ, injunction
or decree of any court, administrative agency or governmental
body. IAI is in compliance in all material respects with all
laws, rules, regulations and orders applicable to its business
and is in possession of all governmental licenses necessary to
the conduct of its business, and such licenses are valid and in
full force and effect. There are no unresolved complaints
pending against IAI before any governmental agency.
4.15 EMPLOYEES. Except as set forth in Exhibit 4.15, IAI has no
written or oral agreement with any employee which cannot be
terminated at will and there has been no increase in
compensation to any employee of IAI since December 31, 1997.
Included in Exhibit 4.15 attached hereto is a list of all of the
employees of IAI as well as their compensation and fringe
benefits.
4.16 EMPLOYEE PLANS. Except as set forth in Exhibit 4.16 attached
hereto, IAI does not maintain, contribute to, or have any
liability to any pension, profit sharing, defined benefit or
other "employee pension benefit plan" or "employee welfare
benefit plan" (as those terms are respectively defined in
sections 3(2) and 3(1) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA")). Each plan listed
on Exhibit 4.16 is in compliance with the requirements
prescribed by any and all statutes, orders, or governmental
rules or regulations currently in effect, including, but not
limited to ERISA, and the Internal Revenue Code of 1986, as
amended (the "Code"), applicable to such plans. Except as
disclosed in Exhibit 4.16, IAI does not have any other plan or
agreement with any of its employees, officers, directors, agents
or representatives providing for present or future employee
benefits or deferred compensation of any nature whatsoever,
stock options, stock purchase or other employee benefits of any
nature whatsoever.
<PAGE>
4.17 INSURANCE. IAI has provided to APG copies of all policies or
binders of fire, professional errors and omissions, liability,
workers' compensation, vehicular and other insurance held by or
on behalf of IAI. No claims are pending with respect to any
such policies or binders. Such policies and binders are in full
force and effect, and insure against risks and liabilities to
the extent and in the manner that is customary in IAI's
industry. IAI has insurance coverage for potential workers'
compensation liabilities. A description of each of the
aforesaid insurance policies is set forth in Exhibit 4.17.
4.18 TAXES. IAI has paid all federal, state, county, local and
foreign taxes, including, without limitation, withholding taxes
and social security taxes on all employees, sales taxes, license
fees, and any charges levied, assessed or imposed upon any of
the property of IAI, whether disputed or not, which are now
known to be, or are hereafter found to be or to have been due.
IAI has filed all federal, state, county, local and foreign tax
returns required to be filed by it and has paid all taxes as
shown on said returns and all assessments received by it to the
extent that such taxes have become due. None of IAI's tax
returns are currently the subject of an audit. IAI has not
waived any statute of limitations or agreed to any extension of
time with respect to any payment, assessment or deficiency of
taxes.
4.19 PROPRIETY OF PAST PAYMENTS. No unrecorded fund or asset of IAI
has been established for any purpose; no accumulation or use of
IAI's corporate funds has been made without being accurately
accounted for in the books and records of IAI; all payments by
or on behalf of IAI have been accurately recorded and accounted
for in its books and records; no false or artificial entry has
been made in the books and records IAI for any reason; no
payment has been made by or on behalf of IAI with the
understanding that any part of such payment is to be used for
any purpose other than that described in the documents
supporting such payment; neither IAI nor any of its directors,
officers, employees or agents, have made or received, directly
or indirectly, any illegal contributions or payment to any
political party, candidate or government official, either
domestic or foreign; receipts or disbursements for the purpose
of commercial bribery or unlawful political influence or
kickbacks; or any other illegal payments or receipts of
consideration (cash or otherwise) of any kind, without regard to
whether any of the foregoing may have been authorized or
ratified by IAI.
4.20 BUSINESS CONDITIONS. Neither IAI nor any of the Shareholders
has any knowledge of any condition which would have a material
adverse effect upon the business of IAI or prevent such business
from being carried on in the future, including but not limited
to any notice from any client of IAI that such client does not
intend to continue its contract with IAI. To the best knowledge
of Shareholders, the execution of this Agreement and the
<PAGE>
consummation of the transactions contemplated by this Agreement
will not cause any of IAI's clients or customers to terminate
their association with IAI. No stockholder, officer, director or
employee of IAI owns, directly or indirectly, an interest in, or
is an employee of, any corporation, firm or other business
organization which is a competitor of IAI.
4.21 FULL DISCLOSURE. All documents and other papers delivered by or
on behalf of IAI and/or the Shareholders in connection with this
Agreement and the transactions contemplated hereby are true,
complete and authentic. The information furnished to APG and/or
AII by or on behalf of IAI and/or the Shareholders in connection
with this Agreement and the transactions contemplated hereby
does not contain any untrue statement of a material fact and
does not omit to state any material fact necessary to make the
statements made, in the context in which made, not false or
misleading. There is no fact of which IAI and/or any of the
Shareholders have not disclosed to APG in writing which
materially adversely affects, or so far as IAI or any of the
Shareholders can now foresee will materially adversely affect,
the business or condition (financial or otherwise) of IAI.
ARTICLE 5
REPRESENTATIONS, WARRANTIES AND COVENANTS OF APG AND AII
--------------------------------------------------------
APG and AII, jointly and severally, represent and warrant to IAI and
the Shareholders that the following statements are true, correct and
complete as of the date of this Agreement and will be true, correct
and complete as of the Closing Date:
5.1 CORPORATE AUTHORITY. The execution, delivery and performance by
APG and AII of this Agreement have been duly authorized and
approved by the respective Boards of Directors of APG and AII.
5.2 DELIVERY OF AGREEMENT AND AII COMMON STOCK. APG and AII have
duly executed and delivered this Agreement, and this Agreement
constitutes the valid and binding obligation of APG and AII
enforceable against each of them in accordance with its terms.
The AII Shares have been duly authorized and, once issued in
accordance with the terms of this Agreement, will be validly
issued, fully paid and non-assessable.
5.3 SEC FORMS. AII has furnished to IAI and the Shareholders a copy
of AII's Form 10-K for its fiscal year ended December 31, 1997,
which has been filed with the Securities and Exchange
Commission. AII represents and warrants that the financial and
other information contained therein are true, accurate and
complete, and are in accordance with the books and records of
AII, set forth fairly AII's financial condition and results of
its operations as of the dates specified therein, are understood
to contain and reflect all necessary adjustments for a fair
<PAGE>
presentation of the results of operations and financial
condition for the periods covered thereunder and, with respect
to any of AII's contracts and commitments, contain and reflect
reserves for all material liabilities and for all reasonably
anticipated material losses.
5.4 PRICE PROTECTION OF AII SHARES. At the end of the fifteen (15)
month period immediately following the Closing, a calculation
shall be made as to the average of the closing bid and ask
prices of AII's common stock on NASDAQ for the trading days
during the last three (3) months of said fifteen (15) month
period ("Price Average"). If the Price Average is less than
$27.00, then AII and/or APG shall pay to each of the
Shareholders an amount of cash equal to (i) $27.00 less the
greater of $24.00 or the Price Average, multiplied by (ii) the
number of AII Shares then owned by each of the Shareholders. In
addition to the foregoing price protection, in the event that
any of the Shareholders sells any of his AII Shares through a
normal brokerage transaction at any time during the fifteen (15)
month period immediately following the Closing at a price of
less than $27.00 per share, AII and/or APG shall pay to each
such Selling Shareholder (for each share sold within that
fifteen month period) an amount of cash equal to $27.00 less the
greater of $24.00 or the actual sales price of the AII Shares
sold by the Shareholder. Notwithstanding anything to the
contrary contained in this Section 5.4, the price protection
afforded herein shall apply only to the AII Shares which were
issued in accordance with Section 2.1.2 above and not to any of
the shares issued under Section 2.1.4 above.
5.5 FULL DISCLOSURE. All documents and other papers delivered by or
on behalf of AII and/or APG in connection with this Agreement
and the transactions contemplated hereby are true, complete and
authentic. The information furnished to IAI and the
Shareholders by or on behalf of AII and/or APG in connection
with this Agreement and the transactions contemplated hereby
does not contain any untrue statement of a material fact and
does not omit to state any material fact necessary to make the
statements made, in the context in which made, not false or
misleading. There is no fact of which AII and/or APG have not
disclosed to IAI or any of the Shareholders in writing which
materially adversely affects, or so far as AII and APG can now
foresee will materially adversely affect, the business or
condition (financial or otherwise) of AII or APG.
<PAGE>
ARTICLE 6
COVENANTS AND AGREEMENTS PRIOR TO CLOSING
-----------------------------------------
The parties covenant and agree as follows:
6.1 CONTINUED DUE DILIGENCE. During the period from the date hereof
through and until the Closing Date, APG and its representatives,
agents and employees shall continue to have reasonable access
(during normal business hours) to the properties, employees,
business and operations of IAI, and the right to make such
continuing examination of the books, records and financial
condition of IAI as APG may wish.
6.2 EXPENSES. Except as otherwise specifically provided in this
Agreement, the parties to this Agreement shall each bear their
own respective expenses incurred in connection with the
preparation, execution and performance of this Agreement and the
transactions contemplated hereby, including without limitation,
all fees and expenses of agents, representatives, counsel and
accountants.
6.3 EMPLOYMENT OF CONTINUING EMPLOYEES. Immediately after the
Closing, IAI's employees (other than the Shareholders) shall
receive the same salary they received immediately prior thereto.
Notwithstanding the foregoing, APG reserves the right to make
(or to cause the Surviving Corporation to make) necessary
personnel or staffing adjustments following the Closing and,
except as provided in Section 3.1, this Agreement shall not be
construed to create contractual employment rights in any
employees other than as employees terminable at will.
6.4 BANK ACCOUNTS. Prior to the Closing, IAI shall not establish
any new bank accounts or add any authorized signatories without
the prior written consent of APG.
6.5 FURTHER ASSURANCES. Each of the parties to this Agreement shall
execute such documents and other papers and take such further
actions as may reasonably be required or desirable to carry out
the provisions hereof and the transactions contemplated hereby.
Each such party shall use its best efforts to fulfill or obtain
the fulfillment of the conditions to the Closing as promptly as
practicable.
ARTICLE 7
CONDITIONS TO OBLIGATIONS OF APG AND AII
----------------------------------------
The obligations of APG and AII to consummate this Agreement shall be
subject to and shall be conditioned upon each of the following
conditions, any one or more of which may be waived by APG and AII:
<PAGE>
7.1 BREACH. Neither APG nor AII shall have discovered any material
error, misstatement or omission in any of the representations or
warranties made by IAI and/or the Shareholders in this
Agreement, and all of the terms, covenants and conditions of
this Agreement to be complied with or performed by IAI and the
Shareholders on or before the Closing shall have been complied
with and performed.
7.2 NO MATERIAL CHANGES. There shall not have been any material
adverse change to the financial or business condition of IAI.
7.3 APPROVALS. All actions, proceedings, instruments and documents
required to carry out this Agreement or incidental thereto and
all other related legal matters shall have been reasonably
approved by counsel for APG and AII.
7.4 GOVERNMENTAL REGULATION. No consent, approval, authorization or
order of any court or governmental agency or administrative body
not obtained and in effect on the Closing shall be required for
the consummation of the transactions contemplated by this
Agreement, and no regulation, claim, proceeding, investigation
or litigation, either administrative or judicial, shall be
threatened or pending against any of the parties hereto, or
applicable to any of them, which, in the opinion of counsel for
APG and AII, presents a reasonable probability that the
transactions contemplated by this Agreement would be enjoined or
prevented, or that the business of IAI would be adversely
affected. At the Closing, there shall exist no violations of
any federal, state or local law, ordinance or regulation
materially affecting the assets, properties or business of IAI.
7.5 EMPLOYMENT AGREEMENTS AND NON-COMPETITION AGREEMENTS. The
Employment Agreements and the Non-Competition Agreements shall
have been executed by all parties thereto.
7.6 ITEMS TO BE DELIVERED BY IAI AND SHAREHOLDERS. At the Closing,
IAI and the Shareholders shall deliver to APG, in form and
substance satisfactory to APG and AII, the following:
7.6.1 A current certificate issued by the California Secretary
of State confirming that no Uniform Commercial Code
filings, chattel mortgages, assignments, pledges or
other encumbrances have been filed with respect to any
of the assets of IAI.
7.6.2 A current certificate from the California Secretary of
State indicating that IAI is in good standing under the
laws of that state.
7.6.3 A certificate, executed and sworn to by IAI and each of
the Shareholders, confirming that (i) as of the Closing,
all of the warranties and representations set forth in
this Agreement are true and correct, and all covenants
and agreements set forth in this Agreement have been
<PAGE>
satisfied, (ii) IAI and the Shareholders have delivered
true, correct and complete original leases, contracts
and other agreements to which IAI is a party, and (iii)
that no adverse changes have occurred with respect to
the business or assets of IAI.
7.6.4 Certified copies of resolutions of all of the
shareholders and Board of Directors of IAI.
7.6.5 Such other documents, instruments and certificates
required of APG and IAI as are contemplated herein to
effect and complete the Closing.
7.6.6 In connection with the AII Shares, an executed copy of
the investment representations in the form attached
hereto as Exhibit 3.3.
7.7 CONSENTS. All parties to any leases, contracts and agreements
of IAI whose consents are required shall have consented to the
transactions contemplated hereby or have waived the preferential
or other rights they would otherwise have by reason of such
transactions.
7.8 APG'S DUE DILIGENCE. Through the Closing Date, APG and its
representatives, agents and employees shall conduct such review
as they deem appropriate in their sole and absolute discretion
of the books, records and affairs of IAI. As a condition to
APG's and AII's obligation to consummate the Merger, APG and AII
must be completely satisfied with the results of such review.
If, for any reason whatsoever, APG or AII is not satisfied with
such review, they may terminate this Agreement and neither party
shall have any obligation hereunder to any of the other parties.
7.9 OPINION OF COUNSEL. APG and AII shall have received a favorable
opinion, reasonably satisfactory to APG, of Mills & Mills,
counsel to IAI and the Shareholders, dated as of the Closing
Date, addressed to APG and AII, to the effect that:
7.9.1 IAI is duly organized, validly existing and in good
standing under the laws of the State of California and
have all requisite power to own, lease and operate their
respective assets, properties and business as now
conducted.
7.9.2 IAI and the Shareholders have the full right, power and
authority required to enter into, execute and deliver
this Agreement and all other agreements and instruments
to be executed by them in connection herewith and to
perform fully their obligations hereunder and
thereunder.
7.9.3 This Agreement and all other agreements and instruments
to be executed by IAI and the Shareholders in connection
herewith have been duly and validly authorized, executed
<PAGE>
and delivered by them and constitute the legal, valid
and binding obligations of them, enforceable in
accordance with their respective terms, except to the
extent that such enforceability is limited by
bankruptcy, insolvency, moratorium or similar laws now
or hereafter in effect relating to or limiting
creditors' rights generally.
7.9.4 To the best knowledge of such counsel, the authorized,
issued and outstanding capital stock of IAI is as stated
in Paragraph 4.4 and Exhibit 4.4 hereof; all of the
shares of issued and outstanding capital stock of IAI
have been duly authorized and are validly issued and
outstanding, fully paid and nonassessable.
7.9.5 To the best knowledge of such counsel, IAI is not a
party to or bound by any outstanding option or agreement
to sell, issue, buy or otherwise dispose of or acquire
any shares of capital stock or any debt security of IAI.
7.9.6 To the best knowledge of such counsel, there is no
pending claim, action, suit, investigation or proceeding
of any kind in which IAI or any of the Shareholders has
been served with process or otherwise received actual
notice, and there is no threat of any such claim,
action, suit, investigation or proceeding against,
involving, affecting or relating to them or against,
involving, affecting or relating to any of them or their
officers or directors in connection with the business
and affairs of IAI.
7.9.7 To the best knowledge of such counsel, there is no
default (or event which, with notice or lapse of time or
both, would constitute a default) by any party thereto
under any contract or by IAI under any governmental
license, franchise, permit or other governmental
authorization, which defaults and events would, in the
aggregate, have a material adverse effect with respect
to the condition (financial or otherwise), assets,
properties, business or prospects of IAI, or a breach of
any provision of the Articles of Incorporation, bylaws
or other charter documents IAI.
7.9.8 This Agreement and the transactions contemplated herein
have been duly approved by the Board of Directors and by
the Shareholders of IAI at a meeting duly held (or by
written consent in lieu of a meeting) in compliance with
the California General Corporation Law and the
applicable regulations thereunder and is binding as to
all Shareholders and this Agreement has been duly and
validly executed and delivered by IAI; and the
consummation of the Merger in accordance with the terms
of this Agreement is a valid and binding obligation of
IAI; and upon the filing by of this Agreement or
<PAGE>
Articles of Merger, executed, acknowledged and amended
as required by the California General Corporation Law,
with the Secretary of State of California, the Merger
shall become effective.
7.9.9 Nothing has come to the attention of such counsel to
indicate that any of the material representations and
warranties of IAI or any of the Shareholders contained
in this Agreement are untrue in any material respect or
misleading in any material respect.
ARTICLE 8
CONDITIONS TO OBLIGATIONS OF
IAI AND THE SHAREHOLDERS
---------------------------
The obligations of IAI and the Shareholders under this Agreement are
subject to the satisfaction or waiver at or prior to the Closing of
the following conditions:
8.1 PERFORMANCE. Each of the acts and undertakings of APG and AII
to be performed at or prior to the Closing pursuant to this
Agreement shall have been performed in all material respects.
8.2 ACCURACY OF REPRESENTATIONS AND WARRANTIES. The representations
and warranties of APG and AII made in this Agreement shall be
true in all respects on and as of the Closing Date and with the
same effect as though such representations and warranties had
been made on and as of such date except as otherwise
contemplated or permitted by this Agreement, and IAI and the
Shareholders shall have received at Closing a certificate or
certificates to that effect dated the Closing Date and executed
on behalf of APG and AII.
8.3 ACTIONS OR PROCEEDINGS. No action or proceeding by any
governmental agency shall have been instituted or threatened
which seeks to enjoin, restrain or prohibit, or which would if
successful result in, damages in respect of, this Agreement or
the complete consummation of the transactions as contemplated by
this Agreement, and which would, in the good faith and
reasonable judgment of the Shareholders, make it inadvisable to
consummate such transactions, and no court order shall have been
entered and be in force in any action or proceeding instituted
by any other party which enjoins, restrains or prohibits this
Agreement or the complete consummation of the transactions as
contemplated by this Agreement.
8.4 OPINION OF COUNSEL. The Corporation shall have received a
favorable opinion, reasonably satisfactory to it, of Richman,
Lawrence, Mann, Chizever & Phillips, counsel to APG and AII,
dated as of the Closing Date, addressed to the Corporation, to
the effect that:
<PAGE>
8.4.1 APG and AII have all requisite power, authority and
approval required to enter into, execute and deliver
this Agreement and all other agreements and instruments
to be executed by APG and AII in connection herewith and
to perform fully their respective obligations hereunder
and thereunder.
8.4.2 This Agreement has been duly and validly authorized,
executed and delivered by APG and AII and constitute the
legal, valid and binding obligations of APG and AII,
enforceable in accordance with its terms, except to the
extent that such enforceability is limited by
bankruptcy, insolvency, reorganization, moratorium or
similar laws now or hereafter in effect relating to or
limiting creditors' rights generally.
8.4.3 The AII shares, when delivered to the Shareholders
pursuant to this Agreement, will be validly issued,
fully paid and non-assessable shares of AII common
stock.
ARTICLE 9
CLOSING
-------
The closing of the Merger ("Closing") shall take place on May 22,
1998, at 10:00 a.m., at the offices of Richman, Lawrence, Mann,
Chizever & Phillips, 9601 Wilshire Boulevard, Beverly Hills,
California 90210, or at such other place or time as the parties may
mutually agree. The parties hereto agree to use their best efforts to
bring about the satisfaction of the conditions for Closing specified
in this Agreement, but if any condition so specified is not satisfied
and such condition is not waived in writing by the party for the
benefit of whom or which such condition is stated, such party may
terminate this Agreement by notice in writing to the other party. Any
such conditions not so waived in writing shall nevertheless be deemed
to have been waived by the party for the benefit of whom or which such
condition is stated, if such party shall not so terminate this
Agreement.
ARTICLE 10
INDEMNIFICATION
---------------
10.1 BY IAI AND THE SHAREHOLDERS. IAI and the Shareholders, jointly
and severally, agree to indemnify, reimburse and hold APG and
AII harmless against and from all losses, damages, costs,
expenses and deficiencies suffered, incurred or sustained by APG
and/or AII, including reasonable attorneys' fees and expenses
("Claim"), as a result of the untruth of any representation or
the breach of any warranty, covenant or agreement made by IAI
<PAGE>
and/or any of the Shareholders in this Agreement or in any
document, exhibit, agreement or certificate given in connection
with this Agreement, and the untruth of any certificate required
under this Agreement to be delivered by IAI and/or the
Shareholders at the Closing. APG and AII shall be entitled to
recover any Claim made under this Paragraph 10.1 only to the
extent the aggregate amount of all such Claims exceeds $50,000
and then only to the extent of such excess.
10.2 APG AND AII. APG and AII, jointly and severally, hereby agree
to indemnify, reimburse and hold harmless IAI and the
Shareholders against and from all losses, damages, costs,
expenses and deficiencies suffered, incurred or sustained by IAI
and the Shareholders, including reasonable attorneys' fees and
expenses, as a result of the untruth of any representation or
the breach of any warranty, covenant or agreement made by APG or
AII in this Agreement or in any document, exhibit, agreement or
certificate given in connection with this Agreement and the
untruth of any certificate required under this Agreement to be
delivered by it at the Closing.
ARTICLE 11
MISCELLANEOUS PROVISIONS
------------------------
11.1 NATURE AND SURVIVAL OF REPRESENTATIONS, WARRANTIES AND
AGREEMENTS. All statements contained in any certificate or
other instrument covered by this Agreement, or made on behalf of
any party pursuant hereto or in connection with the transactions
contemplated hereby, shall be deemed representations, warranties
and agreements provided hereunder. Any representations,
warranties and agreements made by the parties hereto shall
survive the Closing and continue until the applicable statute of
limitations shall have barred any claim thereon and shall be
effective regardless of any investigation which may have been
made at any time by or on behalf of a party.
11.2 EXHIBITS. Exhibits referred to in this Agreement are hereby
made a part hereof.
11.3 PARTIES IN INTEREST AND BINDING EFFECT. This Agreement shall be
binding upon, and inure to the benefit of, the respective heirs,
personal representatives, successors and assigns of the parties
hereto.
11.4 ASSIGNMENT AND AMENDMENT OF AGREEMENT. This Agreement shall not
be assignable by any of the parties hereto except with written
consent of all other parties hereto. This Agreement may be
amended only by written agreement of all the parties hereto.
<PAGE>
11.5 NOTICES. Any notice or communication given by any of the
parties hereto to the other parties hereto pursuant to this
Agreement shall be in writing and delivered, faxed or mailed by
certified mail, postage prepaid, as follows:
(1) If to IAI and/or the Shareholders, to:
Wayne Wright
22522 Allview Terrace
Laguna Hills, California 92651
Fax No. (714) 455-9308
With a copy to:
Mills & Mills
11755 Wilshire Boulevard, Suite 1400
Los Angeles, California 90025
Attention: Michael E. Mills, Esq.
Fax No. (310) 575-1918
(2) If to APG and/or AII, to:
Ambassador Performance Group, Inc.
One Corporate Plaza, Suite 100
Newport Beach, California 92660
Attention: Ronald L. Merriman
Fax No. (714) 717-5051
With a copy to:
Richman, Lawrence, Mann,
Chizever & Phillips
9601 Wilshire Boulevard, Penthouse
Beverly Hills, California 90210
Attention: Gerald M. Chizever, Esq.
Fax No. (310) 274-2831
or to such other address as hereafter shall be furnished in
writing by any of the parties hereto to the other parties
hereto.
11.6 ENTIRE UNDERSTANDING. This Agreement sets forth the entire
understanding of the parties, and it shall not be changed or
terminated orally. All prior discussions between the parties
pertaining to this transaction, both written and oral, are
superseded by and merged into this Agreement.
11.7 HEADINGS. The headings herein are inserted only as a matter of
convenience and reference, and in no way define, limit or
describe the scope of this Agreement, or the intent of any
provisions thereof.
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11.8 COUNTERPARTS. This Agreement may be executed simultaneously in
one or more counterparts, each of which shall be deemed an
original and all of which together shall constitute one and the
same instrument.
11.9 FURTHER ACTS. Each party to this Agreement agrees to execute
any and all documents and perform any and all acts requested by
any of the other parties in order to effectuate or consummate
the terms of this Agreement.
11.10 JOINT AND SEVERAL LIABILITY. Any and all obligations or
liabilities under this Agreement by IAI and/or Shareholders
shall be joint and several on the part of IAI and Wright and
several and proportionate on the part of Medevic to the extent
of 25% thereof, and each of them guarantees the full and
faithful performance of the others as to all terms, conditions,
provisions, representations and warranties made by each of them
under this Agreement, except that Medevic's obligations
hereunder shall be proportionate and several to the extent of
25% thereof.
11.11 NO FINDER OR BROKER. Each party to this Agreement represents
and warrants that no person or entity is entitled to any
brokerage commission, finder's fee or any other like payment in
connection with any transaction contemplated by this Agreement
by reason of the action of such party.
11.12 ATTORNEYS' FEES. In the event that any party to this Agreement
institutes legal action against one or more of the other parties
as a result of a breach or default under this Agreement, the
prevailing party shall be entitled to recover reasonable
attorneys' fees and court costs.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement the day and year first above written.
AMBASSADOR PERFORMANCE GROUP, INC.
By: /s/ Jeffrey D. Thomas
---------------------------------------
Its: Vice President
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AMBASSADORS INTERNATIONAL, INC.
By: /s/ Jeffrey D. Thomas
----------------------------------------
Its: Executive Vice President
----------------------------------------
INCENTIVE ASSOCIATES, INC.
By: /s/ Wayne Wright
----------------------------------------
Its: President
----------------------------------------
/s/ Wayne Wright
---------------------------------------------
WAYNE WRIGHT
/s/ Russ Medevic
---------------------------------------------
RUSS MEDEVIC
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