AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (the "Agreement") is made and entered into as
of this 17th day of November, 2000 by and among EBIZ ENTERPRISES, INC., a Nevada
corporation ("EBIZ"), JONES BUSINESS SYSTEMS, INC., a Texas corporation
("JBSI"), and JBSI ACQUISITION, INC., a Texas corporation and a wholly-owned
subsidiary of EBIZ ("Merger Sub").
RECITALS
A. Upon the terms and subject to the conditions of this Agreement and in
accordance with the Texas Business Corporation Act (the "TBCA"), EBIZ, JBSI and
Merger Sub intend to enter into a business combination transaction whereby the
parties desire that EBIZ acquire all of the outstanding capital stock and equity
interests of JBSI by means of a merger (the "Merger") of JBSI with and into
Merger Sub.
B. For federal income tax purposes, the parties intend that the Merger qualify
as a reorganization within the meaning of Section 368(a) of the Internal Revenue
Code of 1986, as amended (the "Code"). For accounting purposes, the Merger is
intended to be accounted for as a "purchase" under United States generally
accepted accounting principles ("GAAP").
C. The parties hereby set forth the terms, considerations and conditions of the
Merger.
NOW THEREFORE, in consideration of the promises, representations, mutual
covenants contained herein, and for other good and valuable consideration, the
parties hereto agree as follows:
ARTICLE 1
THE MERGER
1.1 The Merger.
(a) At the Effective Time (as hereinafter defined) and subject to and upon
the terms and conditions of this Agreement, Merger Sub shall merge with and into
JBSI in accordance with the provisions of the TBCA, the separate corporate
existence of Merger Sub shall cease and JBSI shall continue as the surviving
corporation (the "Surviving Corporation"). The "Effective Time" shall occur upon
the filing with the Texas Secretary of State of articles of merger (the
"Articles of Merger") substantially in the form of Exhibit A attached hereto and
executed in accordance with the applicable provisions of the TBCA, or at such
later time as may be agreed to by EBIZ and JBSI and specified in the Articles of
Merger. Provided that this Agreement has not been terminated pursuant to Article
10, the parties will cause the Articles of Merger to be filed with the Texas
Secretary of State as soon as practicable after the Closing (as defined in
Section 1.2 below).
(b) At the Effective Time, the Articles of Incorporation of Merger Sub, as in
effect immediately prior to the Effective Time, shall be the Articles of
Incorporation of the Surviving Corporation; provided, however, that Article 1
thereof shall be amended to read: "The name of the corporation is Jones Business
Systems, Inc. (the "Corporation")." Thereafter, the Articles of Incorporation
may be amended as provided by law and such Articles of Incorporation of the
Surviving Corporation.
(c) At the Effective Time, the Bylaws of Merger Sub, as in effect immediately
prior to the Effective Time, shall be the Bylaws of the Surviving Corporation
until thereafter amended.
(d) The directors of Merger Sub immediately prior to the Effective Time
shall be the initial directors of the Surviving Corporation, until their
respective successors are duly elected or appointed and qualified. The officers
of Merger Sub immediately prior to the Effective Time shall be the initial
officers of the Surviving Corporation, until their respective successors are
duly appointed.
(e) The Merger shall have the effects set forth in Article 5.06 of the TBCA.
Without limiting the generality of the foregoing, and subject thereto, at the
Effective Time, all the properties, rights, privileges, powers and franchises of
Merger Sub shall vest in the Surviving Corporation, and all debts, liabilities
and duties of Merger Sub shall become the debts, liabilities and duties of the
Surviving Corporation. If, at any time after the Effective Time, the Surviving
Corporation considers or is advised that any deeds, bills of sale, assignments,
assurances or any other actions or things are necessary or desirable to vest,
perfect or confirm of record or otherwise in the Surviving Corporation its
right, title or interest in, to or under any of the rights, properties, or
assets of either JBSI or Merger Sub, or otherwise to carry out the intent and
purposes of this Agreement, the officers and directors of the Surviving
Corporation will be authorized to execute and deliver, in the name and on behalf
of each of JBSI and Merger Sub, all such deeds, bills of sale, assignments and
assurances and to take and do, in the name and on behalf of each of JBSI and
Merger Sub, all such other actions and things as the Board of Directors of the
Surviving Corporation may determine to be necessary or desirable to vest,
perfect or confirm any and all right, title and interest in, to and under such
rights, properties or assets in the Surviving Corporation or otherwise to carry
out the intent and purposes of this Agreement.
1.2 Closing.
The closing of the Merger (the "Closing") shall take place (i)
at 9:00 a.m. (Mountain Standard Time) at the offices of EBIZ, within five
business days following the date on which the last of the conditions set forth
in Article 7 (other than the filing of the Articles of Merger and other than any
such conditions which by their terms are not capable of being satisfied until
the Closing Date (as hereinafter defined) or thereafter) is satisfied or, when
permissible, waived, or (ii) on such other date and at such other time or place
as is mutually agreed by the parties hereto. The date on which the Closing
occurs is hereinafter referred to as the "Closing Date." The parties anticipate
that the Closing Date will be December 15, 2000.
1.3 Conversion of Securities.
At the Effective Time, by virtue of the Merger and without any action on the
part of EBIZ, Merger Sub, JBSI or the holders of any of their respective
securities:
(a) Each share of common stock of JBSI, par value $0.01 per share ("JBSI Common
Stock"), outstanding immediately prior to the Effective Time shall be
automatically converted (subject to Sections 1.3(f), 1.4 and 1.5 below) into the
right to receive, and shall be exchangeable for 1.549911636 shares (the "Common
Stock Exchange Ratio") of validly issued, fully paid and non-assessable share(s)
of the common stock of EBIZ, par value $0.001 per share (the "EBIZ Common
Stock").
(b) Each share of Series A Convertible Preferred Stock of JBSI, par value $.01
per share ("JBSI Preferred Stock"), outstanding immediately prior to the
Effective Time shall be automatically converted (subject to Sections 1.3(f), 1.4
and 1.5 below) into the right to receive, and shall be exchangeable for
13.01925775 shares of EBIZ Common Stock (the "Preferred Stock Exchange Ratio").
(c) The right to receive 36,952 shares of JBSI Common Stock upon conversion of
the Convertible Debenture (defined below), shall be automatically converted
(subject to Sections 1.3(f) and 1.4 below) into the right to receive 57,273
shares of EBIZ Common Stock (the "Debenture Stock") upon conversion of the
Convertible Debenture in accordance with its terms. If, following the Effective
Time, the Convertible Debenture is converted by the holder thereof on or before
April 30, 2002, such holder will be entitled to receive the Debenture Stock
following such conversion. If the Convertible Debenture is not converted by the
holder thereof on or before April 30, 2002, as soon as reasonably practicable
after such date, EBIZ shall issue the Debenture Stock to the JBSI Stockholders
(as defined below) on a pro rata basis in accordance with the relative
Applicable Stock Percentage (as defined below) of each JBSI Stockholder. As used
herein, "Convertible Debenture" means the 6% convertible debenture of JBSI in
favor of Pick Systems, Inc., in the original principal amount of $184,764.77 and
convertible into JBSI Common Stock at $5.00 per share.
(d) Subject to and as more fully provided in Section 5.9, each unexpired option
to purchase JBSI Common Stock that is outstanding at the Effective Time, whether
or not exercisable, shall automatically and without any action on the part of
the holder thereof be converted into an exercisable option to purchase a number
of shares of EBIZ Common Stock equal to the number of shares of JBSI Common
Stock that could be purchased under such option multiplied by 1.78, at a price
per share of EBIZ Common Stock equal to the per share exercise price of such
option divided by 1.78.
(e) Each share of Common Stock of Merger Sub (the "Merger Sub Common Stock")
issued and outstanding immediately prior to the Effective Time shall be
converted into one validly issued, fully paid and nonassessable share of Common
Stock of the Surviving Corporation. Following the Effective Time, each share
evidencing ownership of such shares of Merger Sub Common Stock shall evidence
ownership of such shares of capital stock of Surviving Corporation.
(f) The conversion of the JBSI Common Stock, options to acquire JBSI Common
Stock, JBSI Preferred Stock and the right to receive JBSI Common Stock upon
conversion of the Convertible Debenture (collectively, the "JBSI Equity
Interests") into the right to receive EBIZ Common Stock and options to acquire
EBIZ Common Stock under the terms set forth in Sections 1.3(a), (b), (c) and (d)
of this Agreement is subject to and expressly contingent upon the condition that
the average of the session ending market price of EBIZ Common Stock as reported
on the principal exchange or market on which the EBIZ Common Stock is then
traded, calculated for the ten market days prior to the Closing Date, must equal
a number which is greater than or equal to $.50 and less than or equal to $1.50
(the "Price Collar"). In the event that such average of the session ending
market prices of EBIZ Common Stock does not fall within the range of the Price
Collar, EBIZ and JBSI shall negotiate in good faith to establish new terms for
the conversion prices set forth in Sections 1.3(a), (b), (c) and (d) of this
Agreement.
(g) For purposes of this Agreement, "Merger Consideration" shall mean, with
respect to the JBSI Equity Interests, the number of shares of EBIZ Common Stock
or options to acquire EBIZ Common Stock into which the JBSI Equity Interests are
converted pursuant to Sections 1.3(a), (b), (c) and (d) of this Agreement.
(h) Notwithstanding the provisions contained in Sections 1.3(a), 1.3(b), 1.3(c),
1.3(d) and 1.4 of this Agreement, the maximum aggregate number (the "Cap") of
shares of EBIZ Common Stock that EBIZ shall be obligated to issue in exchange
for or pursuant to the Merged Interests (as defined below) shall be (i)
8,300,000; less (ii) the number of shares of EBIZ Common Stock that would have
been issued for any Merger Interests for which an election to exercise
dissenters' rights is made as contemplated by Section 1.4 had such election not
been made. For purposes of this Agreement, the "Merged Interests" shall consist
of all shares of JBSI Common Stock and JBSI Preferred Stock outstanding as of
immediately prior to the Effective Time, the Convertible Debenture and any
option, warrant or other interest outstanding as of immediately prior to the
Effective Time that would, but for the Merger or this Agreement, be convertible
into or exercisable for shares of JBSI Common Stock, JBSI Preferred Stock or any
other class or type of equity interest in JBSI; provided, however, the "Merged
Interests" shall not include any unexpired options referenced in Section 1.3(d)
of this Agreement. If the number of shares of EBIZ Common Stock that EBIZ would,
but for this Section 1.3(h), be required to issue under this Agreement in
exchange for or pursuant to the Merged Interests exceeds the Cap, then the
number of shares of EBIZ Common Stock that EBIZ shall be required to issue to
each holder of any Merged Interest shall be reduced proportionately based upon
the relative number of shares of EBIZ Common Stock to which each such holder
would otherwise be entitled upon the full exchange, conversion or exercise of
all Merged Interests held by such holder.
1.4 Dissenting Shares.
(a) Notwithstanding anything to the contrary in this Agreement, if appraisal
rights are available to holders of JBSI Common Stock or JBSI Preferred Stock
pursuant to Articles 5.11, 5.12 and 5.13 of the TBCA (collectively, "Article
5.11"), each outstanding share of JBSI Common Stock or JBSI Preferred Stock, the
holder of which has demanded and perfected his demand for appraisal of the fair
value of such shares in accordance with Article 5.11 and has not effectively
withdrawn or lost his right to such appraisal (the "Dissenting Shares"), shall
not be converted into or represent a right to receive the Merger Consideration,
but the holder thereof shall be entitled only to such rights as are granted by
Article 5.11. JBSI shall give EBIZ prompt written notice upon receipt of any
such written demands for appraisal of the fair value of shares of JBSI Common
Stock or JBSI Preferred Stock and of withdrawals of such demands and any other
instruments provided pursuant to Article 5.11 (any stockholder duly making such
demand being hereafter called a "Dissenting Stockholder"). Each Dissenting
Stockholder who becomes entitled, pursuant to the provisions of Article 5.11, to
payment for his shares of JBSI Common Stock or JBSI Preferred Stock shall
receive payment therefor from the Surviving Corporation (but only after the
amount thereof shall have been agreed upon or at the times and in the amounts
required by Article 5.11), and such shares of JBSI Common Stock or JBSI
Preferred Stock, as the case may be, shall be cancelled.
(b) If any holder of shares of a JBSI Equity Interest who demands appraisal of
the fair value of his shares under Article 5.11 shall effectively withdraw or
lose (through failure to perfect or otherwise) his right to such appraisal, the
shares of the JBSI Equity Interest of such holder shall be converted into a
right to receive the Merger Consideration.
1.5 Exchange of Share Certificates; Fractional Shares.
(a) As soon as practicable after the Effective Time and surrender to EBIZ of any
certificate (a "Certificate") that immediately prior to the Effective Time
represented any shares of JBSI Common Stock or JBSI Preferred Stock, EBIZ shall,
subject to Section 1.5(d) and Article 11 hereof, if such Certificate represented
shares of stock which were converted in the Merger into the right to receive the
Merger Consideration, distribute to the person in whose name such Certificate
shall have been issued, a certificate registered in the name of such person
representing the Merger Consideration payable in respect of such shares. Each
Certificate so surrendered shall forthwith be cancelled.
(b) If certificates for shares of EBIZ Common Stock are to be issued in a name
other than that in which the Certificates surrendered in exchange therefore are
registered, it will be a condition of the issuance thereof that the Certificates
so surrendered will be properly endorsed and otherwise in proper form for
transfer and that the persons requesting such exchange will have paid to EBIZ or
any agent designated by it any transfer or other taxes required by reason of the
issuance of certificates for shares of EBIZ Common Stock in any name other than
that of the registered holder of the Certificates surrendered, or established to
the satisfaction of EBIZ or any agent designated by it that such tax has been
paid or is not payable.
(c) In the event that any Certificates have been lost, stolen or destroyed, EBIZ
shall issue in exchange for such lost, stolen or destroyed Certificates, upon
the making of an affidavit of that fact by the holder thereof, certificates
representing shares of EBIZ Common Stock into which the shares of JBSI Common
Stock or JBSI Preferred Stock represented by such Certificates were converted
pursuant to Section 1.3; provided, however, that EBIZ may, in its discretion and
as a condition precedent to the issuance of such certificates representing
shares of EBIZ Common Stock, require the owner of such lost, stolen or destroyed
Certificates to deliver a bond in such sum as it may reasonably direct as
indemnity against any claim that may be made against EBIZ or the Surviving
Corporation or agent designated by EBIZ with respect to the Certificates alleged
to have been lost, stolen or destroyed.
(d) At and after the Effective Time, there shall be no transfers on the stock
transfer books of the Surviving Corporation of shares of JBSI Common Stock or
JBSI Preferred Stock that were converted into the right to receive the Merger
Consideration. Each share of EBIZ Common Stock into which shares of JBSI Common
Stock or JBSI Preferred Stock shall be converted in the Merger shall be deemed
to have been issued at the Effective Time.
(e) Notwithstanding any other provision of this Agreement, no certificates or
script for fractional shares of EBIZ Common Stock shall be issued in the Merger
and no EBIZ Common Stock dividend, stock split or interest shall relate to any
fractional security, and such fractional interests shall not entitle the owner
thereof to vote or to any other rights of a security holder. In lieu of any such
fractional shares, each holder of shares of JBSI Common Stock and JBSI Preferred
Stock who would otherwise have been entitled to receive a fraction of a share of
EBIZ Common Stock upon surrender of certificates for exchange pursuant to this
Article shall be entitled to receive from EBIZ one share of EBIZ Common Stock.
1.6 Tax Free Merger.
It is intended by the parties hereto that the Merger shall constitute a
reorganization within the meaning of Section 368 of the Code. The parties hereto
adopt this Agreement as a "plan of reorganization" within the meaning of
Sections 1.368-2(g) and 1.368-3(a) of the United States Income Tax Regulations.
Accordingly, both prior to and after the Closing Date, each parties books and
records shall be maintained and federal, state and local income tax returns and
schedules thereto shall be filed in a manner consistent with the Merger being
qualified as a tax free merger under Section 368(a) of the Code (unless a court
of competent jurisdiction renders a determination (as defined in Section
1313(a)(1) of the Code) that the Merger does not qualify as such). Each party
shall provide to each other such information, reports, returns or schedules as
may be reasonably required to assist such party in accounting for reporting the
Merger being so qualified.
1.7 Taking Necessary Action. If at any time after the Effective Time, any
further action is necessary or desirable to carry out the purposes of this
Agreement and to vest the Surviving Corporation with all right, title and
possession to all assets, property, rights, privileges, powers and franchises of
JBSI and Merger Sub, the officers and directors of JBSI, EBIZ and Merger Sub
will take all such lawful and necessary action, so long as such action is
consistent with this Agreement.
ARTICLE 2
ADDITIONAL TERMS
2.1 Employment Agreements.
At the Effective Time EBIZ shall enter into employment agreements, in a form
reasonably acceptable to EBIZ and JBSI, with Bruce Parsons, Mike Colesante, Don
Young, Nick Futter and such other JBSI employees as are mutually acceptable to
EBIZ and JBSI, with such employment agreements containing terms, including
non-competition and non-solicitation provisions, substantially as set forth in
the Employment Agreement Term Sheet attached as Exhibit B hereto (the
"Employment Agreement Term Sheet"). In addition , at the Effective Time, EBIZ
shall enter into employment agreements with members of its management as
determined by the Compensation Committee of the EBIZ Board of Directors on terms
and conditions acceptable to such persons and EBIZ.
2.2 Board of Directors.
At the Effective Time, EBIZ shall cause the number of members of its Board of
Directors to equal seven. EBIZ shall fill 1 of such 7 directorships by
appointing 1 inside Director as directed by JBSI acting through its President
(the "Appointed Director"). The Appointed Director shall be appointed to hold
office until a successor is properly elected and qualified. At the next annual
or special meeting of EBIZ stockholders following the Merger at which an
election of Directors is properly held, EBIZ shall cause to be nominated the
Appointed Director along with the Directors of EBIZ as of the Closing for
election to the Board of Directors of EBIZ, and shall not nominate any other
person for a Director position. At the Closing, a Shareholder Voting Agreement
and Proxy (the "Shareholder Voting Agreement and Proxy"), in a form reasonable
satisfactory to EBIZ and JBSI, reconstituting the Board of Directors of EBIZ as
set forth in this Section 2.2 shall be executed by such stockholders of EBIZ and
JBSI as are reasonably satisfactory to both EBIZ and JBSI.
2.3 Registration Rights/Lock-up.
(a) At the Closing, EBIZ shall enter into a Registration Rights Agreement (the
"Registration Rights Agreement") with each of the stockholders of JBSI,
substantially in the form attached as Exhibit C hereto.
(b) At the Closing, JBSI shall cause those JBSI stockholders who own at least
0.25% of the JBSI Common Stock (assuming conversion of the JBSI Preferred Stock)
to execute and deliver a lock-up agreement (the "Lock-Up Agreement")
substantially in the form attached as Exhibit D hereto.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF JBSI
JBSI hereby represents and warrants to EBIZ as follows:
3.1 Organization, Capacity and Authority.
(a) JBSI has been duly organized and is validly existing and in good standing
under the laws of the State of Texas and has the full corporate power and
authority to own its properties; to carry on its business as now being conducted
and to perform its obligation under all contracts by which it is bound. JBSI is
duly qualified and in good standing as a foreign corporation in the states set
forth on Schedule 3.1(a) hereto and is not required to qualify in any other
state as a foreign corporation, where the failure to do so would have a material
adverse effect on the transactions contemplated hereby or on the business,
assets, results of operations, financial condition or prospects ("collectively,
a Material Adverse Effect") of JBSI.
(b) JBSI Subsidiaries. Each wholly or partially owned subsidiary (singularly
"JBSI Subsidiary" and collectively, the "JBSI Subsidiaries") of JBSI, is set
forth on Schedule 3.1(b) hereto. Each JBSI Subsidiary has been duly organized
and is validly existing and in good standing under the laws of its state of
organization as set forth in Schedule 3.1(b) and has the full corporate power
and authority to own its properties and to carry on its business as now being
conducted. Each JBSI Subsidiary is duly qualified as a foreign corporation in
the states set forth on Schedule 3.1(b) and is not required to qualify in any
other state as a foreign corporation, where the failure to do so would have a
Material Adverse Effect on its conduct of business. Except as noted on Schedule
3.1(b), JBSI owns 100% of the outstanding equity interest of each of the JBSI
Subsidiaries.
(c) JBSI has delivered or made available to EBIZ a true and correct copy of the
Articles of Incorporation and Bylaws of JBSI and similar governing instruments
of each of its subsidiaries, each as amended to date (collectively, the "JBSI
Charter Documents"), and each such instrument is in full force and effect. JBSI
is not in violation of any provision of the JBSI Charter Documents. None of the
JBSI Subsidiaries is in violation of its Articles or Certificate of
Incorporation or Bylaws or other similar governing instruments, except for such
violations as are not material to JBSI and its subsidiaries taken as a whole.
JBSI has delivered or made available to EBIZ all proposed or considered
amendments to the JBSI Charter Documents.
(d) JBSI has all requisite corporate power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby. The execution,
delivery and performance of this Agreement have been duly authorized by the
Board of Directors of JBSI and all other necessary corporate action by JBSI has
occurred and no other corporate proceeding on the part of JBSI is necessary to
authorize this Agreement or the transactions contemplated hereby other than the
approval of this Agreement and the transactions contemplated hereby by JBSI's
stockholders.
(e) Except as set forth on Schedule 3.1(b), JBSI does not directly or indirectly
own any equity or similar interest in, or any interest convertible or
exchangeable for, any equity or similar interest in, any corporation,
partnership, joint venture or other business association or entity.
3.2 No Conflict, Breach or Default.
The execution and delivery of this Agreement and the performance by JBSI of the
terms hereof do not (a) assuming the approval of this Agreement and the
transactions contemplated hereby by JBSI's stockholders, conflict with or result
in a violation of the Articles of Incorporation or Bylaws or other
organizational documents of JBSI or any JBSI Subsidiary, (b) violate any order,
writ, judgment or decree to which JBSI or any JBSI Subsidiary is a party or is
subject, or (c) conflict with or result in a violation of, or result in a breach
of any provision of, or constitute a default (or an event which, with notice or
lapse of time or both, would constitute a default) under, or result in the
termination of, or accelerate the performance required by, or result in the
creation of any lien, security interest, charge or encumbrance upon any of the
properties or assets of JBSI or any JBSI Subsidiary under any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, deed of trust,
lease, license, credit facility, financing agreement, or other agreement or
other instrument or obligation to which JBSI or any JBSI Subsidiary is bound or
by which JBSI or any JBSI Subsidiary or any of its properties or assets may be
bound except, in the case of this clause (c), where such conflict, violation,
default, termination, cancellation or acceleration would not, individually or in
the aggregate, have a Material Adverse Effect on JBSI.
3.3 Approvals and Consents.
Except for the filing of the Articles of Merger with the Secretary of State of
Texas, and except for such consents, approvals, orders, authorizations,
registrations, declarations and filings as may be required under applicable
federal, foreign and state securities (or related laws) and except as set forth
on Schedule 3.3 hereto, no approval, authorization, consent, exemption,
registration, filing or other action by or filing with any court, administrative
agency or commission, taxing authority or other governmental authority or
instrumentality, foreign or domestic ("Governmental Entity(ies)") is required to
be obtained or made by JBSI in connection with the execution and delivery by
JBSI of this Agreement or the transactions contemplated herein.
3.4 Valid Obligation.
This Agreement constitutes a legal, valid and binding obligation of JBSI
enforceable against JBSI in accordance with its terms, except that (a) the
enforceability of the same may be limited by applicable bankruptcy, insolvency,
reorganization or similar laws affecting enforcement of creditors' rights
generally, and (b) the remedy of specific performance and injunctive and other
forms of equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be brought.
3.5 Capital Stock of JBSI.
The authorized capital stock of JBSI consists of 20,000,000 shares of JBSI
Common Stock, of which 3,714,970 shares are issued and outstanding, and
10,000,000 shares of preferred stock of which 1,000,000 shares are authorized
JBSI Preferred Stock and 190,858 shares of JBSI Preferred Stock are issued. JBSI
has awarded options to purchase 2,106,355 shares of Common Stock under JBSI's
2000 Stock Option Plan. All the outstanding shares of JBSI Common Stock and JBSI
Preferred Stock have been duly and validly authorized and issued, and are
fully-paid and non-assessable, and there exist no preemptive rights of any
present or former stockholders of the JBSI Common Stock or JBSI Preferred Stock.
All of such outstanding shares of JBSI Common Stock and JBSI Preferred Stock
have been offered, sold, issued and delivered in compliance with applicable
federal and state securities laws. Except as set forth on Schedule 3.5, JBSI has
no other (i) outstanding securities convertible into or exercisable for its
capital stock and no other agreements of any nature whatsoever whereby JBSI may,
under any circumstances, be obligated to issue, sell, repurchase or redeem
additional shares of its capital stock, (ii) voting agreements, trusts, proxies
or other similar agreements with respect to voting of its capital stock, or
(iii) registration rights, right of first refusal, preemptive rights,
anti-dilution rights, co-sale, stockholders', buy-sell or similar agreements
relating to the sale or transfer of its capital stock.
3.6 JBSI Financial Statements.
(a) Schedule 3.6(a) hereto sets forth a listing of financial statements of JBSI
delivered to EBIZ (collectively, the "JBSI Financial Statements"). The JBSI
Financial Statements are true, accurate and complete in all material respects
and present fairly the financial position of JBSI and all JBSI Subsidiaries as
of the dates stated and the results of the operations of JBSI and all JBSI
Subsidiaries for the periods stated and have been prepared in accordance with
GAAP (except in the case of unaudited statements for the absence of footnotes
and normal year end audit adjustments).
(b) Neither JBSI nor any JBSI Subsidiary has any liabilities or obligations of a
material nature (whether accrued, absolute, asserted, unasserted, known,
unknown, contingent or otherwise) except for those described in the most current
JBSI Financial Statements ("Current JBSI Financial Statements"), described in
Schedule 3.6(b) hereto or otherwise disclosed to EBIZ.
3.7 Books and Records.
The books and records of JBSI and of each JBSI Subsidiary are complete and
correct in all material respects and have been maintained in accordance with
sound business practices, including the maintenance of an adequate system of
internal controls. The books and records, financial and otherwise, of JBSI and
each JBSI Subsidiary accurately set out and disclose in all material respects
the financial position of JBSI and each JBSI Subsidiary, and all transactions of
JBSI and each JBSI Subsidiary have been accurately recorded in all material
respects in such books and records. The minute books of JBSI and each JBSI
Subsidiary contain accurate and complete records of all meetings held of, and
all material corporate actions taken by, its stockholders or Board of Directors
or any committee of its Board of Directors of JBSI or such JBSI Subsidiaries.
3.8 Regulatory Filings.
JBSI and each JBSI Subsidiary has heretofore filed all reports, forms,
registration statements and schedules as required pursuant to any applicable law
except where the failure to make such filings has not had and could not be
reasonably expected to have a Material Adverse Effect on JBSI. All such filings
by JBSI and each JBSI Subsidiary complied as of their respective dates in all
material respects with the applicable requirements of such laws and the rules
and regulations adopted thereunder.
3.9 Absence of Certain Changes and Events.
Except as set forth in Schedule 3.9, since the date of the most current JBSI
Financial Statements delivered to EBIZ, there has not been any change in the
affairs, prospects, condition (financial or otherwise, or arising as a result of
any legislative or regulatory change), operations, liabilities, earnings or
business of JBSI or any JBSI Subsidiary which has had or reasonably could be
expected to have, individually or in the aggregate with other changes, a
Material Adverse Effect on JBSI.
3.10 No Breach of Statute, Decree or Order.
Except as disclosed in Schedule 3.10, neither JBSI nor any JBSI Subsidiary is in
default under, or in violation in any material respect of, any material
applicable statute, law, ordinance, judgment, decree, order, rule or regulation
of any Governmental Entity, and the consummation of this Agreement and the
transactions contemplated hereby will not constitute or result in any such
default, breach or violation. Except as set forth in Schedule 3.10, there is no
known or suspected material action, investigation, review or proceeding by any
governmental body pending or threatened against JBSI or any JBSI Subsidiary
relating to the conduct of its business, and, to the best of JBSI's knowledge,
there is no basis for any such action or proceeding.
3.11 Litigation.
Except as described in Schedule 3.11 or otherwise similarly disclosed to EBIZ in
writing, there is no suit, claim, action, proceeding or governmental
investigation now pending or, to the best of JBSI's knowledge, threatened, nor,
to the best of JBSI's knowledge, is there any condition or set of facts which
will give rise to any litigation, against JBSI or any JBSI Subsidiary before any
Governmental Entity arising out of or relating to any aspect of the business, or
any part of the properties, of JBSI or any JBSI Subsidiary, or concerning the
transactions contemplated by this Agreement. Except as disclosed in Schedule
3.11, there are no decrees, judgments, injunctions or orders of any Governmental
Entity outstanding or, to the best of JBSI's knowledge, threatened against JBSI
or any JBSI Subsidiary relating to any aspect of its business or any part of its
properties or that could prevent consummation of the transactions contemplated
by this Agreement.
3.12 Employee Benefit Plans; Employee Matters.
(a) Except for the plans and arrangements set forth on Schedule 3.12(a) (the
"JBSI Plans"), neither JBSI nor any member of the JBSI Controlled Group (as
hereinafter defined) now maintains, has ever maintained or contributed to, or
has any plans or commitments for, any employee benefit plans (as such term is
defined in ss. 3(3) of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA")) or any other retirement, pension, stock option, stock
appreciation right, profit sharing, incentive compensation, deferred
compensation, savings, thrift, vacation pay, severance pay, or other employee
compensation or benefit plan, agreement, practice, or arrangement, whether
written or unwritten, whether or not legally binding. For purposes of this
Agreement, "JBSI Controlled Group" means a controlled or affiliated group within
the meaning of Code ss. 414(b), (c), (m), or (o) of which JBSI is a member. JBSI
has made available to EBIZ correct and complete copies of all JBSI Plans
(including a detailed written description of any JBSI Plan that is unwritten,
including a description of eligibility criteria, participation, vesting,
benefits, funding arrangements and assets and any other provisions relating to
JBSI) and, with respect to each JBSI Plan, a copy of each of the following, as
applicable: (i) the most recent favorable determination letter issued by the
Internal Revenue Service, (ii) materials submitted to the Internal Revenue
Service in support of a pending determination letter request, (iii) the most
recent letter issued by the Internal Revenue Service recognizing tax exemption,
(iv) each insurance contract, trust agreement, or other funding vehicle, (v) the
three most recently filed Forms 5500 plus all schedules and attachments, and
(vi) each summary plan description or other general explanation or communication
distributed or otherwise provided to employees with respect to each JBSI Plan
that describes the terms of the JBSI Plan.
(b) Each JBSI Plan has at all times been in compliance, in form and in
operation, in all material respects with all applicable requirements of law and
regulations, including without limitation, ERISA.
(c) With respect to each JBSI Plan, there are no actions, suits, grievances,
arbitrations or other manner of dispute, or claims with respect to any JBSI Plan
(except for routine claims for benefits made in the ordinary course of plan
administration for which plan administrative procedures have not been exhausted)
pending, threatened or imminent against or with respect to any JBSI Plan, any
plan sponsor, or any fiduciary (as such term is defined in ERISA ss. 3(21)) of
such JBSI Plan, and JBSI has no knowledge of any facts that could give rise to
any action, suit, grievance, arbitration or other manner of dispute, or claim.
(d) Neither JBSI nor any member of the JBSI Controlled Group has any liability
for post-retirement welfare benefits except for the continuation coverage
required by Code ss. 4980B.
(e) The consummation of the transactions contemplated by this Agreement will not
result in any "excess parachute payments" within the meaning of Code ss. 280G.
Except as set forth on Schedule 3.12(e), the execution of this Agreement and the
consummation of the transactions contemplated hereby will not (either alone or
upon the occurrence of any additional or subsequent events) constitute an event
under any JBSI Plan or JBSI Employment Contract (as hereinafter defined), trust
or loan that will or may result in any payment (whether of severance or
otherwise), acceleration, forgiveness of indebtedness, vesting, distribution,
increase in benefits or obligation to fund benefits with respect to any former
or current employee or director.
(f) No JBSI Plan provides retiree medical or retiree life insurance benefits to
any person and JBSI is not contractually or otherwise obligated (whether or not
in writing) to provide any person with life insurance or medical benefits upon
retirement or termination of employment, other than as required by the
provisions of Sections 601 through 608 of ERISA and Section 4980B of the Code.
(g) Schedule 3.12(g) sets forth a true and complete list of each of the
following agreements, arrangements and commitments to which JBSI or any JBSI
Subsidiary is a party or by which it may be bound (the "JBSI Employment
Contracts"): (i) each employment, consulting, agency or commission agreement not
terminable without liability to JBSI or any JBSI Subsidiary upon 60 days' or
less prior notice to the employee, consultant or agent and involving
compensation or remuneration of more than $50,000 per annum; (ii) each labor
union or collective bargaining agreement; (iii) each agreement with any
executive officer or other key employee of JBSI or any JBSI Subsidiary the
benefits of which are contingent, or the terms of which are materially altered,
upon the occurrence of a transaction involving JBSI or any JBSI Subsidiary of
the nature contemplated by this Agreement; (iv) each agreement with respect to
any officer or other key employee of JBSI or any JBSI Subsidiary providing any
term of employment or compensation guarantee extending for a period longer than
one year; and (v) each equity incentive plan and each other agreement or plan
any of the benefits of which will be increased, or the vesting of the benefits
of which will be accelerated, by the occurrence of any of the transactions
contemplated by this Agreement or the value of any of the benefits of which will
be calculated on the basis of any of the transactions contemplated by this
Agreement. True and complete copies of each JBSI Employment Contract, amendments
thereto and written interpretations thereof, have been made available to EBIZ.
(h) Except as set forth on Schedule 3.12(g) or as stated in Section 3.12(g) of
this Agreement, neither JBSI nor any JBSI Subsidiary has any legally binding
plan or commitment to enter into new or modify existing JBSI Employment
Contracts, nor does it have any intention to do any of the foregoing.
(i) No work stoppage or labor strike against JBSI or any JBSI Subsidiary is
pending, threatened or reasonably anticipated. Neither JBSI nor any JBSI
Subsidiary knows of any activities or proceedings of any labor union to organize
any of its employees.
3.13 Permits and Licenses.
JBSI and each JBSI Subsidiary has such permits, licenses and authorities as
required by any Governmental Entity with jurisdiction over JBSI or any JBSI
Subsidiary with respect to its business as currently conducted and to own or
lease, operate and use its assets and properties, except where the failure to
have such permits, licenses or authorities has not had and could not reasonably
be expected to have a Material Adverse Effect on JBSI. Except as may be
expressly permitted by the terms of this Agreement or otherwise disclosed in
this Agreement or any schedule hereto, the business of JBSI and each JBSI
Subsidiary as presently conducted in any jurisdiction complies in all material
respects with all known and suspected applicable legal requirements of such
jurisdiction, all known and suspected requisite governmental approvals have been
duly obtained and are in full force and effect, and there is no basis for any
Governmental Entity to deny or rescind any approval for the conduct of the
business of JBSI or any JBSI Subsidiary.
3.14 Material Contracts.
Attached hereto as Schedule 3.14 is a list of all contracts of JBSI and each
JBSI Subsidiary ("JBSI Material Contracts") (a) for an aggregate payment by or
to it of more than $50,000, (b) extending for a term beyond 12 months, (c)
relating to the acquisition or disposition of any material asset or any interest
in any business enterprise, (d) containing a guaranty of liabilities or
obligations of others, (e) containing any covenant limiting the freedom of JBSI
or any JBSI Subsidiary to engage in any line of business or to compete with any
person or entity or (f) for all policies of insurance in force as of the date
hereof. True and complete copies of all JBSI Material Contracts have been made
available to EBIZ. JBSI and each JBSI Subsidiary, as applicable, has fulfilled,
or taken all actions necessary to enable it to fulfill when due, its obligations
under each of such contracts. To the best knowledge of JBSI, all parties thereto
have complied in all material respects with the provisions thereof and no party
is in breach or violation of, or in default under such contracts.
3.15 Tax Matters.
(a) Except as set forth in Schedule 3.15(a), all Returns (as hereinafter
defined) required to be filed by JBSI or any JBSI Subsidiary have been duly
filed on a timely basis and all Returns filed by or on behalf of JBSI or any
JBSI Subsidiary (including all attached statements and schedules) are true,
complete and correct in all respects, except for such failures to file and
failures to be true, complete and correct as would not, individually or in the
aggregate, have a Material Adverse Effect on JBSI. No claim has been made or
threatened in writing by any jurisdiction where JBSI or any JBSI Subsidiary does
not file returns that JBSI or any JBSI Subsidiary is or may be subject to Taxes
(as hereinafter defined) in that jurisdiction. All Taxes shown to be payable on
such Returns or on subsequent assessments with respect thereto have been paid in
full on a timely basis, except to the extent any nonpayment is reflected as a
liability on the JBSI Financial Statements. No other Taxes are payable by JBSI
or any JBSI Subsidiary with respect to items or periods covered by such Returns
(whether or not shown on or reportable on such Returns), except for such Taxes
as would not, individually or in the aggregate, have a Material Adverse Effect
on JBSI.
(b) JBSI and each JBSI Subsidiary has withheld and paid over all Taxes required
to have been withheld and paid over to those Governmental Entities to which
payment is required by law, and has complied with all information reporting and
backup withholding requirements, including maintenance of required records with
respect thereto, in connection with amounts paid or owing to any employee,
creditor, independent contractor or other third party, except for such failures
to withhold or pay over and such failures to comply as would not, individually
or in the aggregate, have a Material Adverse Effect on JBSI.
(c) No Return filed by or on behalf of JBSI or any JBSI Subsidiary contains any
position that is or would be subject to penalties under section 6602 of the Code
and the regulations thereunder (and any corresponding provision of state, local
or foreign law), except to the extent such penalties would not, individually or
in the aggregate, have a Material Adverse Effect on JBSI.
(d) There are no liens on any of the assets of JBSI or any JBSI Subsidiary with
respect to Taxes, other than liens for Taxes not yet due and payable or for
Taxes that are being contested in good faith through appropriate proceedings and
for which appropriate reserves have been established, except for such liens as
would not, individually or in the aggregate, have a Material Adverse Effect on
JBSI.
(e) Except as disclosed on Schedule 3.15(e), neither JBSI nor any JBSI
Subsidiary has ever been included in an affiliated group of corporations, within
the meaning of section 1504 of the Code and never been a member of any combined
or unitary group.
(f) With respect to all tax years beginning after December 31, 1996, JBSI has
furnished EBIZ with true and complete copies of: (i) all Returns of JBSI and
each JBSI Subsidiary , and (ii) all tax audit reports, work papers in JBSI's
possession or control, statements of deficiencies or closing or other agreements
received by JBSI, any JBSI Subsidiary or on its behalf relating to Taxes.
(g) Neither JBSI nor any JBSI Subsidiary does business in, or derives a material
amount of income from, any state, local, territorial or foreign taxing
jurisdiction other than those for which Returns have been furnished to EBIZ,
except to the extent any failure to file Returns in any such jurisdiction would
not, individually or in the aggregate, have a Material Adverse Effect on JBSI.
(h) Except for items disclosed on Schedule 3.15(h) attached hereto:
(i) None of the Returns of JBSI or any JBSI Subsidiary has ever been audited by
a Governmental Entity and there are no audits, inquiries, investigations or
examinations relating to any such Returns pending or, to the knowledge of JBSI,
threatened in writing.
(ii) No deficiencies exist or have been asserted in writing with respect to
Taxes of JBSI or any JBI Subsidiary and no written notice has been received by
JBSI or any JBSI Subsidiary with respect to the failure to file any Return or
pay any Taxes.
(iii) Neither JBSI nor any JBSI Subsidiary is a party to any action or
proceeding for assessment or collection of Taxes, nor has any such action or
proceeding been asserted or, to the knowledge of JBSI, threatened in writing
against JBSI, any JBSI Subsidiary, or any of its assets.
(iv) No extension of time to file any Return (which has not been filed) has
been requested by or granted to JBSI or any JBSI Subsidiary. No waiver or
extension of any statute of limitations is in effect with respect to Taxes or
Returns of JBSI or any JBSI Subsidiary.
(v) Neither JBSI nor any JBSI Subsidiary is (and has never been) a party to any
tax sharing agreement, tax indemnity agreement, tax allocation agreement, or
similar arrangement with any person other than JBSI and any JBSI Subsidiary.
(vi) All liabilities for Taxes of JBSI or any JBSI Subsidiary that have been
deferred from a period prior to Closing to a period after Closing are, to the
extent required by GAAP, reflected in the Current JBSI Financial Statements.
(vii) Neither JBSI nor any JBSI Subsidiary has ever been an "S corporation"
under the Code.
(viii) The aggregate liability of JBSI and the JBSI Subsidiaries for unpaid
Taxes for all periods ending on or before September 30, 2000 determined
according to GAAP does not exceed the amount of the current liability accruals
for Taxes (excluding reserves for deferred Taxes) on the JBSI Financial
Statements as of that date, and the aggregate liability of JBSI and the JBSI
Subsidiaries for unpaid Taxes for all periods ending on or before the Closing
Date determined on a GAAP basis will not exceed the amount of the current
liability accruals for Taxes (excluding reserves for deferred Taxes) as such
accruals will be reflected on the balance sheet of JBSI as of the Closing Date,
except to the extent any excess of such Taxes over the relevant current
liability accrual amount would not have a Material Adverse Effect on JBSI.
(i) Subject to the items disclosed on Schedule 3.15(h) attached hereto:
(i) Neither JBSI nor any JBSI Subsidiary is required to treat any asset as
owned by another person for federal income tax purposes or as tax-exempt bond
financed property or tax-exempt use property within the meaning of Section 168
of the Code.
(ii) Neither JBSI nor any JBSI Subsidiary has entered into any agreement,
contract, arrangement or plan that has resulted or would result, separately or
in the aggregate, in the payment of any amount subject to the provisions of
Section 280G or Section 4999 of the Code or any similar provision of state,
local or foreign tax law.
(iii) Neither JBSI nor any JBSI Subsidiary has made an election under Section
338 of the Code and no action has been taken that would result in any income tax
liability to JBSI or any JBSI Subsidiary as a result of a deemed election within
the meaning of Section 338 of the Code.
(iv) No consent under Section 341(f) of the Code has been filed with respect to
JBSI or any JBI Subsidiary.
(v) Neither JBSI nor any JBSI Subsidiary has disposed of any property that is
currently or as of any date subsequent to December 31, 1998 was being accounted
for under the installment method.
(vi) Within the last five years, neither JBSI nor any JBSI Subsidiary has
agreed to make, or has made, any adjustment under Code Section 481 by reason of
a change in accounting method or otherwise.
(vii) Neither JBSI nor any JBSI Subsidiary is a United States real property
holding corporation within the meaning of Section 897(c)(2) of the Code and EBIZ
is not required to withhold any amount on the acquisition of the shares of JBSI.
(viii) Neither JBSI nor any JBSI Subsidiary has made or will make a deemed
dividend election under Treas. Reg.ss. 1.1502-32(f)(2) or a consent dividend
under Section 565 of the Code.
(ix) None of the assets or operations of JBSI or any JBSI Subsidiary is
subject to any joint venture, partnership or other arrangement or contract that
is treated as a partnership for federal income tax purposes.
(x) Neither JBSI nor any JBSI Subsidiary has made any election comparable to
those described in this section under any state, local or foreign tax laws or is
required to apply any rules comparable to those described in this Section under
any state, local or foreign tax laws.
(xi) The transactions contemplated hereby are not subject to the tax
withholding provisions of Section 3406 of the Code, or of Subchapter A of
Chapter 3 of the Code, or of any other provision of law.
(j) Within 10 calendar days following the date of this Agreement, JBSI shall
prepare and deliver to EBIZ a Schedule 3.15(j) which shall contain information
that is accurate and complete in all material respects with respect to (A) all
affirmative tax elections in effect with respect to JBSI and each JBSI
Subsidiary; (B) the tax basis of the assets of JBSI and each JBSI Subsidiary
broken out by asset class as of December 31, 1999; (C) the net operating losses
of JBSI and each JBSI Subsidiary by taxable year; (D) the net capital losses of
JBSI and each JBSI Subsidiary by taxable year; and (E) the overall foreign
losses of JBSI and each JBSI Subsidiary under Section 904(f) of the Code that
are subject to recapture. When timely delivered to EBIZ by JBSI as provided
above, such Schedule 3.15(j) shall, as of the date of this Agreement, be
construed with and be an integral part of this Agreement and be incorporated
herein by this reference.
(k) There are no transfer taxes (exclusive of income taxes) that will become due
and payable as a result of the Merger under Texas or federal law.
(l) "Taxes" as used in this Agreement means all taxes, however denominated,
including any interest, penalties or other additions to tax that may become
payable in respect thereof, imposed by any Governmental Entity or taxing
authority, which taxes shall include, without limiting the generality of the
foregoing, all income or profits taxes, payroll and employee withholding taxes,
unemployment insurance, social security taxes, sales and use taxes, value added
taxes, ad valorem taxes, excise taxes, franchise taxes, gross receipts taxes,
business license taxes, occupation taxes, real and personal property taxes,
escheat amounts, stamp taxes, environmental taxes, severance taxes, production
taxes, transfer taxes, workers' compensation, Pension Benefit Guaranty
Corporation premiums and other governmental charges, and other obligations of
the same or of a similar nature to any of the foregoing.
(m) "Returns" as used in this Agreement means all returns, declarations,
reports, forms, claims for refund, estimates, information returns and statements
and other documentation, including amendments, required to be maintained or
filed with or supplied to any Governmental Entity in connection with any Taxes.
3.16 Title to Properties.
Except as disclosed in Schedule 3.16, JBSI and each JBSI Subsidiary has good and
indefeasible title, free and clear of any mortgage, pledge, lien, charge or
other encumbrance, to all of its real and/or personal property and other assets
whether reflected on the Current JBSI Financial Statements or otherwise, or
acquired by it subsequent to the date thereof or used by it in the ordinary
course of its business, except for (a) liens or encumbrances on such property or
assets described in the Current JBSI Financial Statements, (b) liens for current
taxes not yet due and payable, (c) such imperfections of title and encumbrances,
if any, as are not material in character, amount or extent and do not detract
from the value or interfere with the present or presently contemplated future
use of the properties subject thereto or affected thereby, and (d) acquisitions
and dispositions in the ordinary course of business. JBSI and each JBSI
Subsidiary has valid leasehold interests in, and enjoys peaceable and
undisturbed possession under, all material leases under which it is operating,
and all of its premises which are leased, are in good condition and repair
(ordinary wear and tear excepted) and are suitable for the purposes for which
such premises are being utilized. Neither JBSI nor any JBSI Subsidiary has
received any notice of violation of any applicable zoning ordinance or other
law, order, regulation or requirement relating to its operations or to its owned
or leased properties. JBSI shall furnish EBIZ with true and correct copies of
all such leases.
3.17. Environmental Matters.
To the best knowledge of JBSI, JBSI and each JBSI Subsidiary has duly complied
with, and the operation of its business, equipment and other assets and the
facilities owned or leased by JBSI or any JBSI Subsidiary are in compliance with
the provisions of all applicable federal, state and local environmental, health
and safety laws, statutes, ordinances, rules, permits and regulations of any
Governmental Entities relating to (i) errors or omissions, (ii) discharges to
the atmosphere, soils, surface water or ground water, (iii) solid or liquid
waste disposal, (iv) the use, storage, generation, handling, transport,
discharge, release or disposal of toxic or hazardous substances or waste, (v)
the emission of non-ionizing electromagnetic radiation or (vi) other
environmental, health or safety matters, including without limitation, all
matters set forth in the Comprehensive Environmental Response, Compensation and
Liability Act, as amended; the Occupational Safety and Health Act; the Resource
Conservation Recovery Act of 1976; the Federal Water Pollution Control Act of
1970; the Safe Drinking Water Act of 1974; the Toxic Substances Control Act of
1976; the Occupational Safety and the Clean Air Act, as amended (collectively,
"Environmental and Health Laws"), except for the noncompliance with or violation
of any of the above that has not and could not reasonably be expected to have a
Material Adverse Effect on JBSI. To the knowledge of JBSI or any JBSI
Subsidiary, there are no investigations, administrative proceedings, judicial
actions, orders, claims or notices that are pending, anticipated or threatened
against JBSI relating to violations of the Environmental and Health Laws. The
Company has not received a notice of, and does not know or have any reason to
suspect, facts which constitute a violation of any Environmental and Health Laws
which relate to the use, ownership or occupancy of any property or facilities
used by JBSI or any JBSI Subsidiary in connection with the operation of its
business or any activity of the business of JBSI or any JBSI Subsidiary which
would result in a material violation or threatened violation of any
Environmental and Health Laws.
3.18 Intellectual Property.
(a) JBSI owns, or is licensed or otherwise possesses legally enforceable rights
to use, all patents, trademarks, trade names, service marks, copyrights, and any
applications therefor, trade dress, business names, product names, logos,
slogans, domain names, technology, processes, schematics, know-how, trade
secrets, computer software programs or applications (in both source code and
object code form), design and program documentation, analysis, data flow
diagrams, website content and all other tangible or intangible proprietary
information or material ("Intellectual Property") used in the business of JBSI
as currently conducted, except to the extent that the failure to have such
rights has not and could not reasonably be expected to have a Material Adverse
Effect on JBSI.
(b) Schedule 3.18 (b) lists: (i) all patents and patent applications and all
registered and unregistered trademarks, trade names and service marks,
registered domain names and registered and unregistered copyrights, which JBSI
considers to be material to its business and included in the Intellectual
Property, including the jurisdictions in which each such Intellectual Property
right has been issued or registered or in which any application for such
issuance and registration has been filed, (ii) all material licenses,
sublicenses and other agreements as to which JBSI is a party and pursuant to
which any person is authorized to use any Intellectual Property, and (iii) all
material licenses, sublicenses and other agreements as to which JBSI is a party
and pursuant to which JBSI is authorized to use any third party patents,
trademarks or copyrights, including software ("JBSI Third Party Intellectual
Property Rights"), in each case which are incorporated in, are, or form a part
of any product or service of JBSI. JBSI has not transferred ownership of, or
granted any exclusive license with respect to, any Intellectual Property, that
would have a Material Adverse Effect on JBSI.
(c) To the knowledge of JBSI, there has not been and currently is no
unauthorized use, disclosure, infringement or misappropriation of any
Intellectual Property or any trade secret of JBSI, or any JBSI Third Party
Intellectual Property Right, by any third party, including any employee or
former employee of JBSI. To the knowledge of JBSI, the operation of the business
of JBSI as such business is currently conducted, including JBSI's design,
development, marketing and sale of the products or services of JBSI (including
with respect to products currently under development) has not, does not and will
not infringe or misappropriate intellectual property of any third party or
constitute unfair competition or trade practices under the laws of any
jurisdiction. JBSI has not entered into any agreement to indemnify any other
person against any charge of infringement of any Intellectual Property, other
than indemnification provisions contained in purchase orders arising in the
ordinary course of business, or contained in license agreements relating to
Intellectual Property licensed to or by JBSI in the ordinary course of business.
(d) JBSI is not, and will not be as a result of the execution and delivery of
this Agreement or the performance of JBSI's obligations under this Agreement, in
breach of any license, sublicense or other agreement relating to the
Intellectual Property or JBSI Third Party Intellectual Property Rights, the
breach of which could have a Material Adverse Effect on JBSI.
(e) All patents, registered trademarks, service marks, registered domain names
and copyrights held by JBSI are valid and subsisting and all necessary
registration, maintenance and renewal fees, where currently required or where
currently due, have been made. JBSI (i) has not been sued in any suit, action or
proceeding which involves a claim of infringement of any patents, trademarks,
service marks, domain names, copyrights or violation of any trade secret or
other proprietary right of any third party and (ii) has not brought any action,
suit or proceeding for infringement of Intellectual Property or breach of any
license or agreement involving Intellectual Property against any third party. To
the knowledge of JBSI, the manufacture, marketing, licensing or sale of the
products and services of JBSI does not infringe any patent, trademark, service
mark, copyright, trade secret, domain name or other proprietary right of any
third party.
(f) JBSI has secured valid written assignments from all consultants and
employees who contributed to the creation or development of Intellectual
Property of the rights to such contributions that JBSI does not already own by
operation of law.
3.19 Condition and Sufficiency of Assets.
All real property and equipment of JBSI and each JBSI Subsidiary are
structurally sound and in good operating condition and repair (ordinary wear and
tear excepted) and are adequate for the uses thereof. None of the real property
or equipment is in need of maintenance or repairs except for ordinary, routine
maintenance and repair that are not material. The real property and equipment
are sufficient for the continued conduct of the business of JBSI and each JBSI
Subsidiary.
3.20 Accuracy of Statements.
JBSI has disclosed to EBIZ all facts required to be disclosed by this Agreement
and material to the liabilities, assets, business, conditions, organization and
operations (financial and otherwise) of JBSI and the JBSI Subsidiaries. Neither
this Agreement nor any exhibit or schedule hereto nor any certificate, document,
instrument or information furnished or to be furnished by JBSI or any JBSI
Subsidiary to EBIZ in connection with this Agreement or any of the transactions
contemplated hereby contains or will contain any untrue statement of a material
fact or omits or will omit to state a material fact necessary to make the
statements contained herein or therein, in light of the circumstances under
which they are made, not misleading.
3.21 Brokers' and Finders' Fees.
JBSI has not incurred, and will not incur, directly or indirectly, any liability
for brokerage or finders' fees or agents' commissions or investment bankers'
fees or any similar charges in connection with this Agreement or any transaction
contemplated hereby.
3.22 Shareholder List.
To the best of JBSI's knowledge, upon reasonable investigation, the JBSI
shareholder list set forth on Schedule 3.22 hereto correctly states with respect
to each record holder of JBSI Common Stock or JBSI Preferred Stock: (a) the name
of such holder; (b) the address of the principal residence, or in the case of a
holder that is a business entity, the principal place of business, of such
holder; and (c) the the number of shares of JBSI Common Stock or JBSI Preferred
Stock, as the case may be, held by such holder.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF EBIZ
AND MERGER SUB
EBIZ and Merger Sub hereby represent and warrant to JBSI as follows:
4.1 (a) Organization of EBIZ. EBIZ has been duly organized and is validly
existing and in good standing under the laws of the State of Nevada and has the
full corporate power and authority to own its properties and to carry on its
business as now being conducted. EBIZ is duly qualified and in good standing as
a foreign corporation in the states set forth on Schedule 4.1(a) hereto and is
not required to qualify in any other state as a foreign corporation, where the
failure to do so would have a Material Adverse Effect on EBIZ.
(b) EBIZ Subsidiaries. Each wholly or partially owned subsidiary (singularly
"EBIZ Subsidiary" and collectively, the "EBIZ Subsidiaries") of EBIZ, including
Merger Sub, is set forth on Schedule 4.1(b) hereto. Each EBIZ Subsidiary has
been duly organized and is validly existing and in good standing under the laws
of its state of organization as set forth in Schedule 4.1(b) and has the full
corporate power and authority to own its properties and to carry on its business
as now being conducted. Each EBIZ Subsidiary is duly qualified as a foreign
corporation in the states set forth on Schedule 4.1(b) and is not required to
qualify in any other state as a foreign corporation, where the failure to do so
would have a Material Adverse Effect on its conduct of business. Except as noted
on Schedule 4.1(b), EBIZ owns 100% of the outstanding equity interest of each of
the EBIZ Subsidiaries.
(c) Corporate Power and Authority. EBIZ and Merger Sub have
all corporate power and authority to enter into this Agreement and to consummate
the transactions contemplated hereby. The execution, delivery and performance of
this Agreement have been duly authorized by the Boards of Directors of EBIZ and
Merger Sub and all other necessary corporate action by EBIZ and Merger Sub has
occurred and no other corporate proceeding on the part of EBIZ or Merger Sub is
necessary to authorize this Agreement or the transactions contemplated hereby.
4.2 No Conflict, Breach or Default. The execution and delivery
of this Agreement and the performance by EBIZ and Merger Sub of its terms do not
(a) conflict with or result in a violation of the articles of incorporation or
bylaws or other organizational documents of EBIZ or any EBIZ Subsidiary, (b)
violate any order, writ, judgment or decree to which EBIZ or any EBIZ Subsidiary
is a party or is subject, or (c) conflict with or result in a violation of, or
result in a breach of any provision of, or constitute a default (or an event
which, with notice or lapse of time or both, would constitute a default) under,
or result in the termination of, or accelerate the performance required by, or
result in the creation of any lien, security interest, charge or encumbrance
upon any of the properties or assets of EBIZ or any EBIZ Subsidiary under, any
of the terms, conditions or provisions of any note, bond, mortgage, indenture,
deed of trust, lease, license, agreement or other instrument or obligation to
which EBIZ or any EBIZ Subsidiary is bound or by which EBIZ or any EBIZ
Subsidiary or any of their properties or assets may be bound, except, in the
case of this clause (c), where such conflict, violation, default, termination,
cancellation or acceleration would not individually or in the aggregate, have a
Material Adverse Effect on EBIZ.
4.3 Approvals and Consents. Except for the filing of the Articles of Merger with
the Secretary of State of the State of Texas, and except for such consents,
approvals, orders, authorizations, registrations, declarations and filings as
may be required under applicable federal, foreign and state securities (or
related laws), and as set forth on Schedule 4.3 hereto, no approval,
authorization, consent, exemption, filing, registration or other action by or
filing with any Governmental Entity is required in connection with the execution
and delivery by EBIZ and Merger Sub of this Agreement or the transactions
contemplated herein or therein.
4.4 Valid Obligation. This Agreement constitutes a legal, valid and binding
obligation of EBIZ and Merger Sub enforceable against each of them in accordance
with its terms, except that (a) the enforceability of the same may be limited by
applicable bankruptcy, insolvency, reorganization or similar laws affecting
enforcement of creditors' rights generally, and (b) the remedy of specific
performance and injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
4.5 Validly Issued Shares; Securities Act Exemption; Blue Sky.
(a) Upon issuance, all EBIZ Common Stock to be issued to the stockholders of
JBSI in exchange for the JBSI Common Stock and JBSI Preferred Stock will be duly
authorized, validly issued, fully paid and nonassessable outstanding shares of
the capital stock of EBIZ.
(b) Based upon the assumption that Schedule 3.22 correctly lists all of the
holders of record of the Merged Intersts as of the date hereof, and that the
information set forth in Schedule 3.22 with respect to each such holder is true,
complete and correct, and further based upon the assumption that all relevant
representations and warranties received by either JBSI or EBIZ from any holder
of JBSI Common Stock or JBSI Preferred Stock pursuant to Section 5.11 of this
Agreement are true, correct and complete, and further based upon the assumption
that the Closing occurs, as of the Closing: (i) the issuance of the EBIZ Common
Stock to the stockholders of JBSI pursuant to the terms of this Agreement will
constitute a transaction exempt from registration under the Securities Act of
1933, as amended (the "Securities Act"); and (ii) EBIZ will have obtained, all
necessary Blue Sky law permits and qualifications, or will have available
exemptions therefrom, for the issuance of the EBIZ Common Stock to the
stockholders of JBSI pursuant to the terms of this Agreement.
4.6 Capital Stock of EBIZ and Merger Sub.
The authorized capital stock of EBIZ consists of 70,000,000 shares of EBIZ
Common Stock, of which 22,596,544 shares are issued and outstanding, and
5,000,000 shares of preferred stock of which 60,000 shares of Series A 10%
Convertible Preferred Stock ("EBIZ Preferred Stock") are authorized and 7,590
shares of EBIZ Preferred Stock are issued and outstanding. An additional
6,799,169 shares of EBIZ Common Stock have been reserved for issuance upon the
exercise of outstanding warrants. EBIZ has awarded options to purchase 1,507,450
shares of EBIZ Common Stock under its 1998 Equity Incentive Plan outstanding,
and anticipates issuing additional options to purchase 5,650,000 shares of
Common Stock . EBIZ has assumed debentures outstanding that will be converted,
with accrued interest, into 2,509,810 shares of common stock in January 2001 and
has outstanding the Debenture (as defined in Section 5.3(b)), which is
convertible into EBIZ Common Stock at variable prices. The authorized capital
stock of Merger Sub consists of 1000 shares of common stock, 100 of which are
issued and outstanding. All of the issued and outstanding shares of Merger Sub
are owned by EBIZ. All the outstanding shares of EBIZ Common Stock and EBIZ
Preferred Stock and Merger Sub are duly and validly authorized and issued,
fully-paid and non-assessable, and there exist no preemptive rights of any
present or former stockholders of the EBIZ Common Stock and EBIZ Preferred
Stock. All of such outstanding shares of EBIZ Common Stock and EBIZ Preferred
Stock have been offered, sold, issued and delivered in compliance with
applicable federal and state securities laws. Except as set forth in Schedule
4.6, EBIZ has no other (i) outstanding securities convertible into or
exercisable for its capital stock and no other agreements of any nature
whatsoever whereby EBIZ may, under any circumstances, be obligated to issue,
sell, repurchase or redeem shares of its capital stock (ii) voting agreements,
trusts, proxies or other similar agreements with respect to voting of its
capital stock, or (iii) registration rights, right of first refusal, co-sale,
preemptive rights, anti-dilution rights, stockholders', buy-sell or similar
agreements relating to the sale or transfer of its capital stock. EBIZ has a
sufficient number of EBIZ Common Stock authorized to issue the Merger
Consideration at the Effective Time and to fulfill the obligations under the
JBSI stock options that are to be issued by EBIZ at the Effective Time pursuant
to Section 1.3(c) above.
4.7 EBIZ Financial Statements.
(a) Schedule 4.7(a) hereto sets forth a listing of financial statements of EBIZ
delivered to JBSI (collectively, the "EBIZ Financial Statements"). The EBIZ
Financial Statements are true, accurate and complete in all material respects
and present fairly the financial position of EBIZ and its Subsidiaries as of the
dates stated and the results of the operations of EBIZ and its Subsidiaries for
the periods stated and have been prepared in accordance with GAAP, consistently
applied with all adjustments as mandated by any agency or other authority
(except in the case of unaudited statements for the absence of footnotes and
normal year end audit adjustments).
(b) Neither EBIZ nor any EBIZ Subsidiary have any liabilities or obligations of
a material nature (whether accrued, absolute, asserted, unasserted, known,
unknown, contingent or otherwise) except for those disclosed in the most current
EBIZ Financial Statements ("Current EBIZ Financial Statements") or in Schedule
4.7(b) hereto.
4.8 Books and Records.
The books and records of EBIZ and of each EBIZ Subsidiary are complete and
correct and have been maintained in accordance with sound business practices and
the requirements of Section 13(b)(2) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act") where required, including the maintenance of an
adequate system of internal controls. The books and records, financial and
otherwise, of EBIZ and each EBIZ Subsidiary accurately set out and disclose in
all material respects the financial position of EBIZ and of each EBIZ
Subsidiary, and all transactions of EBIZ and of each EBIZ Subsidiary have been
accurately recorded in all material respects in such books and records in
accordance with GAAP. The minute books of EBIZ and of each EBIZ Subsidiary
contain accurate and complete records of all meetings held of, and all material
corporate actions taken by, the stockholders, Board of Directors or any
committee of the Board of Directors of EBIZ or such EBIZ Subsidiaries.
4.9 Regulatory Filings.
EBIZ and each EBIZ Subsidiary has heretofore filed all reports, registration
statements and schedules as required pursuant to any applicable law except where
the failure to make such filings has not had and could not be reasonably
expected to have a Material Adverse Effect on EBIZ. All such filings by EBIZ and
each such EBIZ Subsidiary complied as of their respective dates in all material
respects with the applicable requirements of such laws and the rules and
regulations adopted thereunder.
4.10 Absence of Certain Changes and Events.
Except as set forth in Schedule 4.10, since the date of the most current EBIZ
Financial Statements delivered to JBSI, there has not been any change in the
affairs, prospects, condition (financial or otherwise, or arising as a result of
any legislative or regulatory change), operations, liabilities, earnings or
business of EBIZ or any EBIZ Subsidiary which has had or reasonably could be
expected to have, individually or in the aggregate with other changes, a
Material Adverse Effect on EBIZ.
4.11 No Breach of Statute, Decree or Order.
Except as disclosed in Schedule 4.11, neither EBIZ nor any Subsidiary is in
default under, or in violation in any respect of, any material applicable
statute, law, ordinance, judgment, decree, order, rule or regulation of any
Governmental Entity, and the consummation of this Agreement and the transactions
contemplated hereby will not constitute or result in any such default, breach or
violation. Except as set forth in Schedule 4.11, there is no known or suspected
material action or proceeding by any Governmental Entity, pending or threatened
against EBIZ or any EBIZ Subsidiary relating to the conduct of its business, and
to the best of EBIZ's knowledge there is no basis for any such action or
proceeding.
4.12 Litigation.
Except as disclosed in Schedule 4.12, there is no suit, claim, action,
proceeding or governmental investigation now pending or, to the best knowledge
of EBIZ, threatened, nor, to the best of EBIZ's knowledge, is there any
condition or set of facts which will give rise to any litigation, against EBIZ
or any Subsidiary before any court, administrative or regulatory body or any
governmental agency arising out of or relating to any aspect of the business, or
any part of the properties, of EBIZ or any EBIZ Subsidiary, or concerning the
transactions contemplated by this Agreement. Except as disclosed in Schedule
4.12, there are no decrees, injunctions or orders of any court or governmental
department or agency outstanding or, to the best knowledge of EBIZ, threatened
against EBIZ or any EBIZ Subsidiary relating to any aspect of its business or
any part of its properties or that could prevent consummation of the
transactions contemplated by this Agreement.
4.13 Employee Benefit Plans; Employee Matters.
(a) Except for the plans and arrangements set forth on Schedule 4.13(a) (the
"EBIZ Plans"), neither EBIZ nor any member of the EBIZ Controlled Group (as
hereinafter defined) now maintains, has ever maintained or contributed to, or
has any plans or commitments for, any employee benefit plans (as such term is
defined in ERISA ss. 3(3)) or any other retirement, pension, stock option, stock
appreciation right, profit sharing, incentive compensation, deferred
compensation, savings, thrift, vacation pay, severance pay, or other employee
compensation or benefit plan, agreement, practice, or arrangement, whether
written or unwritten, whether or not legally binding. For purposes of this
Agreement, "EBIZ Controlled Group" means a controlled or affiliated group within
the meaning of Code ss. 414(b), (c), (m), or (o) of which EBIZ is a member. EBIZ
has made available to JBSI correct and complete copies of all EBIZ Plans
(including a detailed written description of any EBIZ Plan that is unwritten,
including a description of eligibility criteria, participation, vesting,
benefits, funding arrangements and assets and any other provisions relating to
EBIZ) and, with respect to each EBIZ Plan, a copy of each of the following, as
applicable: (i) the most recent favorable determination letter issued by the
Internal Revenue Service, (ii) materials submitted to the Internal Revenue
Service in support of a pending determination letter request, (iii) the most
recent letter issued by the Internal Revenue Service recognizing tax exemption,
(iv) each insurance contract, trust agreement, or other funding vehicle, (v) the
three most recently filed Forms 5500 plus all schedules and attachments, and
(vi) each summary plan description or other general explanation or communication
distributed or otherwise provided to employees with respect to each EBIZ Plan
that describes the terms of the EBIZ Plan.
(b) Each EBIZ Plan has at all times been in compliance, in form and in
operation, in all material respects with all applicable requirements of law and
regulations, including without limitation, ERISA.
(c) With respect to each EBIZ Plan, there are no actions, suits, grievances,
arbitrations or other manner of dispute, or claim with respect to any EBIZ Plan
(except for routine claims for benefits made in the ordinary course of plan
administration for which plan administrative procedures have not been exhausted)
pending, threatened or imminent against or with respect to any EBIZ Plan, any
plan sponsor, or any fiduciary (as such term is defined in ERISA ss. 3(21)) of
such EBIZ Plan, and EBIZ has no knowledge of any facts that could give rise to
any action, suit, grievance, arbitration or other manner of dispute, or claim.
(d) Neither EBIZ nor any member of the EBIZ Controlled Group has any liability
for post-retirement welfare benefits except for the continuation coverage
required by Code ss. 4980B.
(e) The consummation of the transactions contemplated by this Agreement will not
result in any "excess parachute payments" within the meaning of Code ss. 280G.
Except as set forth on Schedule 4.13(e), the execution of this Agreement and the
consummation of the transactions contemplated hereby will not (either alone or
upon the occurrence of any additional or subsequent events) constitute an event
under any EBIZ Plan or EBIZ Employment Contract (as hereinafter defined), trust
or loan that will or may result in any payment (whether of severance or
otherwise), acceleration, forgiveness of indebtedness, vesting, distribution,
increase in benefits or obligation to fund benefits with respect to any former
or current employee or director.
(f) No EBIZ Plan provides retiree medical or retiree life insurance benefits to
any person and EBIZ is not contractually or otherwise obligated (whether or not
in writing) to provide any person with life insurance or medical benefits upon
retirement or termination of employment, other than as required by the
provisions of Sections 601 through 608 of ERISA and Section 4980B of the Code.
(g) Schedule 4.13(g) sets forth a true and complete list of each of the
following agreements, arrangements and commitments to which EBIZ or any
Subsidiary is a party or by which it may be bound (the "EBIZ Employment
Contracts"): (i) each employment, consulting, agency or commission agreement not
terminable without liability to EBIZ or any Subsidiary upon 60 days' or less
prior notice to the employee, consultant or agent and involving compensation or
remuneration of more than $50,000 per annum; (ii) each labor union or collective
bargaining agreement; (iii) each agreement with any executive officer or other
key employee of EBIZ or any Subsidiary the benefits of which are contingent, or
the terms of which are materially altered, upon the occurrence of a transaction
involving EBIZ or any Subsidiary of the nature contemplated by this Agreement;
(iv) each agreement with respect to any officer or other key employee of EBIZ or
any Subsidiary providing any term of employment or compensation guarantee
extending for a period longer than one year; and (v) each equity incentive plan
and each other agreement or plan any of the benefits of which will be increased,
or the vesting of the benefits of which will be accelerated, by the occurrence
of any of the transactions contemplated by this Agreement or the value of any of
the benefits of which will be calculated on the basis of any of the transactions
contemplated by this Agreement. True and complete copies of each EBIZ Employment
Contract, amendments thereto and interpretations thereof, have been made
available to JBSI.
4.14 Permits and Licenses.
EBIZ and each EBIZ Subsidiary has such permits, licenses and authorities as
required by any Governmental Entity with jurisdiction over EBIZ or any EBIZ
Subsidiary with respect to its business as currently conducted and to own or
lease, operate and use its assets and properties except where the failure to
have such permits, licenses or authorities has not had and could not be
reasonably expected to have a Material Adverse Effect on EBIZ. Except as may be
expressly permitted by the terms of this Agreement or otherwise disclosed in
this Agreement or any schedule hereto, the business of EBIZ and each EBIZ
Subsidiary as presently conducted in any jurisdiction complies in all material
respects with all known and suspected applicable legal requirements of such
jurisdiction, all known and suspected requisite governmental approvals have been
duly obtained and are in full force and effect, and there is no basis for any
Governmental Entity to deny or rescind any approval for the conduct of the
business of EBIZ or any EBIZ Subsidiary.
4.15 Material Contracts.
Attached hereto as Schedule 4.15 is a list of all contracts of EBIZ and each
EBIZ Subsidiary (the "EBIZ Material Contracts") (a) for an aggregate payment by
or to it of more than $50,000, (b) extending for a term beyond 12 months, (c)
relating to the disposition or acquisition of any material asset or any interest
in any business enterprise, (d) containing a guaranty of liabilities or
obligations of others, (e) containing any covenant limiting the freedom of EBIZ
or any EBIZ Subsidiary to engage in any line of business or compete with any
person or entity, or (f) for all policies of insurance in force as of the date
hereof. True and complete copies of all EBIZ Material Contracts have been
delivered to JBSI. EBIZ and each EBIZ Subsidiary, as applicable, has fulfilled,
or taken all actions necessary to enable it to fulfill when due its obligations
under each of such contracts. To the best knowledge of EBIZ, all parties thereto
have complied in all material respects with the provisions thereof and no party
is in breach or violation of, or in default under such contracts.
4.16 Tax Matters.
(a) Except as set forth in Schedule 4.16(a), all Returns required to be filed by
EBIZ or any EBIZ Subsidiary have been duly filed on a timely basis and all
Returns filed by or on behalf of EBIZ or any EBIZ Subsidiary (including all
attached statements and schedules) are true, complete and correct in all
respects, except for such failures to file and failures to be true, complete and
correct as would not, individually or in the aggregate, have a Material Adverse
Effect on EBIZ. No claim has been made or threatened in writing by any
jurisdiction where EBIZ or any Subsidiary does not file returns that EBIZ or any
EBIZ Subsidiary is or may be subject to Taxes in that jurisdiction. All Taxes
shown to be payable on such Returns or on subsequent assessments with respect
thereto have been paid in full on a timely basis, except to the extent any
nonpayment is reflected as a liability on the EBIZ Financial Statements. No
other Taxes are payable by EBIZ or any EBIZ Subsidiary with respect to items or
periods covered by such Returns (whether or not shown on or reportable on such
Returns), except for such Taxes as would not, individually or in the aggregate,
have a Material Adverse Effect on EBIZ.
(b) EBIZ and each EBIZ Subsidiary has withheld and paid over all Taxes required
to have been withheld and paid over to those Governmental Entities to which
payment is required by law, and has complied with all information reporting and
backup withholding requirements, including maintenance of required records with
respect thereto, in connection with amounts paid or owing to any employee,
creditor, independent contractor or other third party, except for such failures
to withhold or pay over and such failures to comply as would not, individually
or in the aggregate, have a Material Adverse Effect on EBIZ.
(c) No Return filed by or on behalf of EBIZ or any EBIZ Subsidiary contains any
position that is or would be subject to penalties under section 6602 of the Code
and the Regulations thereunder (and any corresponding provision of state, local
or foreign law), except to the extent such penalties would not, individually or
in the aggregate, have a Material Adverse Effect on EBIZ.
(d) There are no liens on any of the assets of EBIZ or any EBIZ Subsidiary with
respect to Taxes, other than liens for Taxes not yet due and payable or for
Taxes that are being contested in good faith through appropriate proceedings and
for which appropriate reserves have been established, except for such liens as
would not, individually or in the aggregate, have a Material Adverse Effect on
EBIZ.
(e) Except as disclosed on Schedule 4.16(e), neither EBIZ nor any EBIZ
Subsidiary has been included in an affiliated group of corporations, within the
meaning of section 1504 of the Code or been a member of any combined or unitary
group.
(f) EBIZ has furnished JBSI with true and complete copies of: (i) all Returns of
EBIZ and each Subsidiary for all tax periods since June 30, 1997, and (ii) all
tax audit reports, work papers in EBIZ's possession or control, statements of
deficiencies or closing or other agreements received by EBIZ, any EBIZ
Subsidiary or on any of their behalf relating to Taxes.
(g) Neither EBIZ nor any EBIZ Subsidiary does business in, or derives a material
amount of income from, any state, local, territorial or foreign taxing
jurisdiction other than those for which Returns have been furnished to JBSI,
except to the extent any failure to file Returns in any such jurisdictions would
not, individually or in the aggregate, have a Material Adverse Effect on EBIZ.
(h) Except for items disclosed on Schedule 4.16(h) attached hereto:
(i) None of the Returns of EBIZ or any EBIZ Subsidiary has ever been audited
by a governmental or taxing authority and there are no audits, inquiries,
investigations or examinations relating to any such Returns pending or, to the
knowledge of EBIZ, threatened in writing.
(ii) No deficiencies exist or have been asserted in writing with respect to
Taxes of EBIZ or any Subsidiary and no written notice has been received by EBIZ
or any EBIZ Subsidiary with respect to the failure to file any Return or pay any
Taxes.
(iii) Neither EBIZ nor any EBIZ Subsidiary is a party to any action or
proceeding for assessment or collection of Taxes, nor has any such action or
proceeding been asserted or, to the knowledge of EBIZ, threatened in writing
against EBIZ, any EBIZ Subsidiary or any of their respective assets.
(iv) No extension of time to file any Return (which has not been filed) has
been requested by or granted to EBIZ or any EBIZ Subsidiary. No waiver or
extension of any statute of limitations is in effect with respect to Taxes or
Returns of EBIZ or any EBIZ Subsidiary.
(v) Neither EBIZ nor any EBIZ Subsidiary is (and has never been) a party to any
tax sharing agreement, tax indemnity agreement, tax allocation agreement, or
similar arrangement with any person other than EBIZ and any EBIZ Subsidiary.
(vi) All liabilities for Taxes of EBIZ or any EBIZ Subsidiary that have been
deferred from a period prior to Closing to a period after Closing are, to the
extent required by GAAP, reflected in the Current EBIZ Financial Statements.
(vii) Neither EBIZ nor any EBIZ Subsidiary has ever been an "S corporation"
under the Code.
(viii) The aggregate liability of EBIZ and the EBIZ Subsidiaries for unpaid
Taxes for all periods ending on or before June 30, 2000 determined on a GAAP
basis does not exceed the amount of the current liability accruals for Taxes
(excluding reserves for deferred Taxes) on the EBIZ financial statements as of
that date, and the aggregate liability of EBIZ and the EBIZ Subsidiaries for
unpaid Taxes for all periods ending on or before the Closing Date determined on
a GAAP basis will not exceed the amount of the current liability accruals for
Taxes (excluding reserves for deferred Taxes) as such accruals will be reflected
on the balance sheet of EBIZ as of the Closing Date, except to the extent any
excess of such Taxes over the relevant current liability accrual amount would
not have a Material Adverse Effect on EBIZ.
(i) Subject to the items disclosed on Schedule 4.16(h) attached hereto:
(i) Neither EBIZ nor any EBIZ Subsidiary is required to treat any asset as owned
by another person for federal income tax purposes or as tax-exempt bond financed
property or tax-exempt use property within the meaning of Section 168 of the
Code.
(ii) Neither EBIZ nor any EBIZ Subsidiary has entered into any agreement,
contract, arrangement or plan that has resulted or would result, separately or
in the aggregate, in the payment of any amount subject to the provisions of
Section 280G or Section 4999 of the Code or any similar provision of state,
local or foreign tax law.
(iii) Neither EBIZ nor any EBIZ Subsidiary has made an election under
Section 338 of the Code and no action has been taken that would result in any
income tax liability to EBIZ or any EBIZ Subsidiary as a result of a deemed
election within the meaning of Section 338 of the Code.
(iv) No consent under Section 341(f) of the Code has been filed with respect
to EBIZ or any EBIZ Subsidiary.
(v) Neither EBIZ nor any EBIZ Subsidiary has disposed of any property that is
currently or as of any date subsequent to December 31, 1999 was being accounted
for under the installment method.
(vi) Within the last five years, neither EBIZ nor any EBIZ Subsidiary has agreed
to make, or has made, any adjustment under Code Section 481 by reason of a
change in accounting method or otherwise.
(vii) Neither EBIZ nor any EBIZ Subsidiary is a United States real property
holding corporation within the meaning of Section 897(c)(2) of the Code.
(viii) Neither EBIZ nor any EBIZ Subsidiary has made or will make a deemed
dividend election under Treas. Reg.ss. 1.1502-32(f)(2) or a consent dividend
under Section 565 of the Code.
(ix) None of the assets or operations of EBIZ or any EBIZ Subsidiary is
subject to any joint venture, partnership or other arrangement or contract that
is treated as a partnership for federal income tax purposes.
(x) Neither EBIZ nor any EBIZ Subsidiary has made any elections comparable to
those described in this section under any state, local or foreign tax laws or is
required to apply any rules comparable to those described in this Section under
any state, local or foreign tax laws.
(xi) The transactions contemplated hereby are not subject to the tax
withholding provisions of Section 3406 of the Code, or of Subchapter A of
Chapter 3 of the Code, or of any other provision of law.
(j) Schedule 4.16(j) contains information that is accurate and complete in
all material respects with respect to: (A) all tax elections in effect with
respect to EBIZ and each EBIZ Subsidiary; (B) the current tax basis of the
assets of EBIZ and each EBIZ Subsidiary broken out by asset class; (C) the net
operating losses of EBIZ and each EBIZ Subsidiary by taxable year; (D) the net
capital losses of EBIZ and each EBIZ Subsidiary by taxable year; and (E) the
overall foreign losses of EBIZ and each EBIZ Subsidiary under Section 904(f) of
the Code that are subject to recapture.
(k) There are no transfer taxes (exclusive of income taxes) that will become
due and payable as a result of the Merger transaction under Arizona, Nevada or
federal law.
4.17 Title to Properties.
Except as disclosed in Schedule 4.17, EBIZ and each EBIZ Subsidiary has good and
indefeasible title, free and clear of any mortgage, pledge, lien, charge or
other encumbrance, to all of its real and/or personal property and other assets
whether reflected on the Current EBIZ Financial Statements or otherwise, or
acquired by it subsequent to the date thereof or used by it in the ordinary
course of its business, except for (a) liens or encumbrances on such property or
assets described in the Current EBIZ Financial Statements, (b) liens for current
taxes not yet due and payable, (c) such imperfections of title and encumbrances,
if any, as are not material in character, amount or extent and do not detract
from the value or interfere with the present or presently contemplated future
use of the properties subject thereto or affected thereby, and (d) acquisitions
and dispositions in the ordinary course of business. EBIZ and each EBIZ
Subsidiary has valid leaseholds in, and enjoys peaceable and undisturbed
possession under all material leases under which it is operating, and all of its
premises which are leased, are in good condition and repair (ordinary wear and
tear excepted) and are suitable for the purposes for which such premises are
being utilized. Neither EBIZ nor any EBIZ Subsidiary has received any notice of
violation of any applicable zoning ordinance or other law, order, regulation or
requirement relating to its operations or to its owned or leased properties.
4.18. Environmental Matters
To the best knowledge of EBIZ, EBIZ and each EBIZ Subsidiary has duly complied
with, and the operation of its business, equipment and other assets and the
facilities owned or leased by EBIZ or any Subsidiary are in compliance with the
provisions of all applicable federal, state and local environmental, health and
safety laws, statutes, ordinances, rules and regulations of any Governmental
Entity relating to (i) errors or omissions, (ii) discharges to the atmosphere,
soils, surface water or ground water, (iii) solid or liquid waste disposal, (iv)
the use, storage, generation, handling, transport, discharge, release or
disposal of toxic or hazardous substances or waste, (v) the emission of
non-ionizing electromagnetic radiation or (vi) Environmental and Health Laws,
except for the noncompliance with or violation of any of the above that has not
and could not reasonably be expected to have a Material Adverse Effect on EBIZ.
To the knowledge of EBIZ, there are no investigations, administrative
proceedings, judicial actions, orders, claims or notices that are pending,
anticipated or threatened against EBIZ or any EBIZ Subsidiary relating to
violations of the Environmental and Health Laws. EBIZ has not received a notice
of, and does not know or have any reason to suspect, facts which constitute a
violation of any Environmental and Health Laws which relate to the use,
ownership or occupancy of any property or facilities used by EBIZ or any EBIZ
Subsidiary in connection with the operation of its business or any activity of
the business of EBIZ or any EBIZ Subsidiary which would result in a material
violation or threatened violation of any Environmental or Health Laws.
4.19 Intellectual Property.
(a) EBIZ owns, or is licensed or otherwise possesses legally enforceable rights
to use all Intellectual Property used in the business of EBIZ as currently
conducted, except to the extent that the failure to have such rights has not and
could not reasonably be expected to have a Material Adverse Effect on EBIZ.
(b) Schedule 4.19(b) lists: (i) all patents and patent applications and all
registered and unregistered trademarks, trade names and service marks,
registered domain names and registered and unregistered copyrights, which EBIZ
considers to be material to its business and included in the Intellectual
Property, including the jurisdictions in which each such Intellectual Property
right has been issued or registered or in which any application for such
issuance and registration has been filed, (ii) all material licenses,
sublicenses and other agreements as to which EBIZ is a party and pursuant to
which any person is authorized to use any Intellectual Property, and (iii) all
material licenses, sublicenses and other agreements as to which EBIZ is a party
and pursuant to which EBIZ is authorized to use any third party patents,
trademarks or copyrights, including software ("EBIZ Third Party Intellectual
Property Rights"), in each case which are incorporated in, are, or form a part
of any product or service of EBIZ.
(c) To the knowledge of EBIZ, there has not been and currently is no
unauthorized use, disclosure, infringement or misappropriation of any
Intellectual Property or any trade secret of EBIZ, or any EBIZ Third Party
Intellectual Property Right, by any third party, including any employee or
former employee of EBIZ. To the knowledge of EBIZ, the operation of the business
of EBIZ as such business is currently conducted, including EBIZ's design,
development, marketing and sale of the products or services of EBIZ (including
with respect to products currently under development) has not, does not and will
not infringe or misappropriate intellectual property of any third party or
constitute unfair competition or trade practices under the laws of any
jurisdiction. EBIZ has not entered into any agreement to indemnify any other
person against any charge of infringement of any Intellectual Property, other
than indemnification provisions contained in purchase orders arising in the
ordinary course of business, or contained in license agreements relating to
Intellectual Property licensed to or by EBIZ in the ordinary course of business.
(d) EBIZ is not, and will not be as a result of the execution and delivery of
this Agreement or the performance of EBIZ's obligations under this Agreement, in
breach of any license, sublicense or other agreement relating to the
Intellectual Property or EBIZ Third Party Intellectual Property Rights, the
breach of which could have a Material Adverse Effect on EBIZ.
(e) All patents, registered trademarks, service marks, registered domain names
and copyrights held by EBIZ are valid and subsisting and all necessary
registration, maintenance and renewal fees, where currently required or where
currently due, have been made. EBIZ (i) has not been sued in any suit, action or
proceeding which involves a claim of infringement of any patents, trademarks,
service marks, domain names, copyrights or violation of any trade secret or
other proprietary right of any third party and (ii) has not brought any action,
suit or proceeding for infringement of Intellectual Property or breach of any
license or agreement involving Intellectual Property against any third party. To
the knowledge of EBIZ, the manufacture, marketing, licensing or sale of the
products and services of EBIZ does not infringe any patent, trademark, service
mark, copyright, trade secret, domain name or other proprietary right of any
third party.
(f) EBIZ has secured valid written assignments from all consultants and
employees who contributed to the creation or development of Intellectual
Property of the rights to such contributions that EBIZ does not already own by
operation of law.
4.20 Condition and Sufficiency of Assets.
All real property and equipment of EBIZ and each EBIZ Subsidiary is structurally
sound and in good operating condition and repair (ordinary wear and tear
excepted) and are adequate for the uses thereof. None of the real property or
equipment is in need of maintenance or repairs except for ordinary, routine
maintenance and repair that are not material. The real property and equipment
are sufficient for the continued conduct of the business of EBIZ and each
Subsidiary.
4.21 EBIZ Reports and Financial Statements.
EBIZ has made available to JBSI true and complete copies of all reports,
registration statements, definitive proxy statements and other documents (in
each case together with all amendments thereto) filed by EBIZ or its predecessor
with the Securities and Exchange Commission (the "Commission") since October 1,
1999 (such reports, registration statements, definitive proxy statements and
other documents, together with any amendments thereto, are sometimes
collectively referred to as the "EBIZ Commission Filings"). The EBIZ Commission
Filings constitute all of the documents (other than preliminary material) that
EBIZ or its predecessor was required to file with the Commission since such
date. As of their respective dates, each of the EBIZ Commission Filings complied
in all material respects with the applicable requirements of the Securities Act,
the Exchange Act and the rules and regulations under each such Act, and none of
the EBIZ Commission Filings contained as of such date any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. When filed with the Commission, the
financial statements included in the EBIZ Commission Filings complied as to form
in all material respects with the applicable rules and regulations of the
Commission. EBIZ has complied with all of the rules, regulations and
requirements for trading of EBIZ's common stock on the OTC Bulletin Board.
4.22 Accuracy of Statements.
EBIZ has disclosed to JBSI all facts required to be disclosed by this Agreement
and material to the liabilities, assets, business, conditions, organization and
operations (financial and otherwise) of EBIZ and the EBIZ Subsidiaries. Neither
this Agreement nor any exhibit or schedule hereto nor any certificate,
documents, instrument or information furnished or to be furnished by EBIZ or
Merger Sub to JBSI in connection with this Agreement or any of the transactions
contemplated hereby, or will contain any untrue statement of a material fact or
omits or will omit to state a material fact necessary to make the statements
contained herein or therein, in light of the circumstances under which they are
made, not misleading.
4.23 Brokers and Finders' Fees.
EBIZ has not incurred, and will not incur, directly or indirectly, any liability
for brokerage or finders' fees or agents' commissions or investment bankers'
fees or any similar changes in connection with this Agreement or any transaction
contemplated hereby.
ARTICLE 5
COVENANTS OF JBSI AND EBIZ
5.1 Access to Information.
JBSI shall provide EBIZ, its counsel, accountants and other representatives, and
EBIZ shall provide JBSI, its counsel, accountants and other representatives,
full access, from and after the date of this Agreement, to all of their
respective properties, books, contracts, commitments and records, and each shall
furnish to the other during such period all such information concerning its
affairs as the other may reasonably request. In addition, each shall make its
officers, personnel and vendors available to discuss with the designated
representatives of the other the substance of all documents, financial
statements and other information provided by the party to the other and such
other matters as either party shall deem pertinent to the transactions
contemplated by this Agreement.
5.2 Conduct of Business.
Except as otherwise consented to in writing by the other, from the effective
date of execution of this Agreement until the Closing Date or the date of
termination of this Agreement, each of JBSI and EBIZ shall:
(a) maintain and operate its properties in a manner consistent with the
efficient operation of its business and conduct its business only in the
ordinary course. It shall not be considered to be in the ordinary course of its
business to make any acquisition of direct or indirect ownership or control of
voting shares of any other corporation, or of any interest in any partnership,
joint venture, association or similar organization, other than shares acquired
in satisfaction of a security interest or of a debt previously contracted or in
a fiduciary or custodial capacity.
(b) punctually pay and discharge all Taxes, assessments and governmental charges
lawfully imposed upon it or any of its property, or upon the income and profits
thereof; provided, however, that nothing herein contained shall require a party
to pay or discharge any Tax assessment or governmental charge so long as the
validity thereof shall be contested in good faith and by appropriate proceedings
unless property essential to the conduct of its business will be lost, forfeited
or materially endangered.
(c) maintain its existence as a corporation in good standing under the laws of
its state of organization and comply in all material respects with all laws,
governmental regulations, rules and ordinances, and judicial orders, judgments
and decrees applicable to its business or its properties, except while
contesting the validity of any of the foregoing in good faith and by appropriate
proceedings.
(d) notify the other of the commencement of any material litigation against it
or of the existence of any adverse business conditions threatening its
continued, normal business operations or of any agreement, consent or order
involving its operations.
(e) at all times maintain, preserve and keep its properties in good repair,
working order and condition in all material respects so that the business
carried on in connection therewith may be properly and advantageously conducted.
(f) make every reasonable effort to fulfill its contractual obligations and to
maintain in effect its insurance as currently in effect.
(g) use its best efforts to preserve its business relations with its present
customers.
(h) use its best efforts to assure, to the extent within its control, the
satisfaction of the conditions to the effectiveness of the transactions
contemplated in this Agreement.
5.3 Negative Covenants.
Prior to the Closing Date or the termination of this Agreement, neither JBSI
nor EBIZ shall, unless the other shall have otherwise consented in writing:
(a) amend its Articles or Certificate of Incorporation or Bylaws, except to the
extent necessary to effect the transactions contemplated by this Agreement.
(b) issue, sell or otherwise dispose of any shares of its capital stock or any
of its securities convertible into or representing a right or option to purchase
any such shares or enter into other agreements to issue or sell any shares of
its capital stock or change the presently outstanding shares of such stock into
a greater or lesser number of shares either by way of a recapitalization,
reorganization, consolidation of shares or the like, or by way of a merger or
consolidation, other than (i) the issuance by EBIZ of such shares of EBIZ Common
Stock as are required to comply with the terms of the $7,100,000 Subordinated
Convertible Debenture, dated August 25, 1999, issued by EBIZ in favor of JEM
Ventures EBIZ, LLC (the "Debenture"), (ii) the issuance by EBIZ or JBSI, as the
case may be, of Common Stock upon the exercise of any outstanding warrants or
outstanding stock options granted under the respective company's stock option
plan currently in effect, including amendments thereto, or (iii) the issuance by
JBSI of JBSI Common Stock upon conversion of the Convertible Debenture.
(c) purchase, redeem, retire or otherwise acquire or sell, hypothecate, pledge
or otherwise encumber, any shares of its capital stock.
(d) declare, set aside, make or pay stock or cash dividends on any share of its
capital stock or make any other distribution of assets to the holders of any
shares of its capital stock.
(e) institute a wage or salary adjustment increasing the base compensation rate
of any person whose annual base compensation rate on the date hereof exceeds
$25,000, pay a new employee an annual base compensation rate exceeding $50,000,
enter into any agreement, understanding or commitment, written or oral, which
obligates it, or its successors or assigns, to pay, at any time, to a new
employee an annual base compensation rate exceeding $50,000, or institute or
agree to institute wage or salary adjustments which, taken either individually
or in the aggregate, increase by more than 10% the aggregate of the annual base
compensation rates paid by either on the date hereof to all of its employees.
(f) enter into or institute any employment contracts, including but not limited
to employee policy manual, deferred compensation, non-competition, bonus, stock
option, profit-sharing, pension, retirement, consultation after retirement,
payments upon retirement, severance agreement, incentive, extraordinary vacation
accrual, education payment or benefit, disability, medical, life or other
insurance plan or arrangement or, except as required by applicable law or
regulation, renew, amend, modify or terminate any such arrangement or plan now
in existence; provided, however, that (i) EBIZ may enter into employment
contracts with current EBIZ or JBSI employees which employment contracts shall
not exceed a duration of four (4) months for the purpose of retaining the
services of those employees during that period, and (ii) EBIZ may grant any
options or warrants referenced in this Agreement or the EBIZ Schedules attached
hereto or issue any option or warrants pursuant to any agreements referenced in
the EBIZ Schedules.
(g) enter into any agreement, understanding or commitment, written or oral, with
any other person which is in any manner inconsistent with its obligations
arising under this Agreement.
(h) make any loan, advance or commitment to extend credit to any of its
directors, officers or any affiliated or related persons of such directors or
officers; renew any outstanding loan or any outstanding commitment to extend
credit to any of its directors, officers or any affiliated or related persons of
such directors or officers; increase any outstanding loan to any of its
directors, officers or any affiliated or related persons of such directors or
officers; or enter into any agreement, understanding or commitment, written or
oral, which obligates it, its successors or assigns, to make any loan or advance
or payment to any of its directors or officers or to any affiliated or related
persons of any such directors or officers.
(i) sell, lease or otherwise transfer or dispose of any property or asset, other
than in the ordinary course of business consistent with past practice.
(j) take, or agree to take, any other action that would make any of its
representations or warranties contained in this Agreement untrue.
5.4 Continued Relationships.
JBSI shall preserve intact the business of JBSI and each JBSI Subsidiary and
EBIZ shall preserve intact the business of EBIZ and each EBIZ Subsidiary and
keep available the services of their respective officers and employees and
maintain good relationships with suppliers, customers and others having business
relationships with any of the parties, and shall not cause any change in the
business, condition or results of operations which may have an adverse effect on
any the assets, business, condition or prospects of the respective party.
5.5 Confidentiality.
(a) Except as contemplated by this Agreement, as required by law or otherwise
expressly consented to in writing by EBIZ and JBSI, all information or documents
furnished hereunder by any party shall be kept strictly confidential by the
party or parties to whom furnished at all times prior to the Closing Date, and
in the event such transactions are not consummated, each shall return to the
other all documents furnished hereunder and copies thereof upon request and
shall continue to keep confidential all information furnished hereunder and
shall not thereafter use the same for its advantage. Notwithstanding the
foregoing, (i) EBIZ or JBSI may, with the consent of the other, which consent
shall not be unreasonably withheld or delayed, issue or make a press release,
announcement or other disclosure regarding this Agreement and the transactions
contemplated hereby which it reasonably determines necessary or desirable under
applicable law, and (ii) EBIZ may, at any time after the date of this Agreement,
file with the Commission a form 8-K pursuant to the Exchange Act with respect to
the transactions contemplated by this Agreement, which Form 8-K may include,
among other things, financial statements and pro forma financial information
with respect to JBSI. Prior to the Closing Date or termination of this
Agreement, JBSI shall cooperate with EBIZ and provide such information and
documents as may be required in connection with any such filings.
(b) If the Closing is not consummated, each party will hold, and each party will
cause its respective Subsidiaries to hold, in absolute confidence any
information obtained from another party except to the extent (i) such party is
required to disclose such information by law or regulation, (ii) disclosure of
such information is necessary in connection with the pursuit of a claim by such
party against another party, (iii) such information was known by such party
prior to such disclosure or was thereafter developed or obtained by such party
independent of such disclosure, or (iv) such information becomes generally
available to the public or is otherwise no longer confidential. Prior to any
disclosure of information pursuant to the exception in clause (i) or (ii) of the
preceding sentence, the party intending to disclose the same shall so notify the
party which provided the same in order that such party may seek a protective
order or other appropriate remedy should it choose to do so. Notwithstanding the
foregoing, EBIZ or JBSI may, with the consent of the other, which consent shall
not be unreasonably withheld or delayed, issue or make a press release,
announcement or other disclosure regarding the termination of this Agreement and
the transactions contemplated hereby which it reasonably determines necessary or
desirable under applicable law.
5.6 No Solicitation.
JBSI, EBIZ and those acting on behalf of either will not, and JBSI and EBIZ will
use their best efforts to cause their officers, employees, agents, and
representatives (including any investment banker) to not, directly or
indirectly, solicit, encourage, or initiate any discussions with, or negotiate
or otherwise deal with, or provide any information to, any person or entity
other than the other and its officers, employees, and agents, concerning any
merger, other business combination, sale of substantial assets, or similar
transaction involving either or any sale of any of their capital stock or of the
capital stock or other securities or assets of either. Each will notify the
other immediately upon receipt of any inquiry, offer or proposal relating to any
of the foregoing. None of the foregoing shall prohibit (i) sale of EBIZ Common
Stock as contemplated under this Agreement or (ii) providing information to
others in a manner in keeping with the ordinary conduct of the parties'
business, or providing information to Governmental Entities.
5.7 Notification of Certain Matters.
Between the date hereof and the Closing Date, each party will give prompt notice
in writing to the other party of: (i) any information that indicates that any of
its representations or warranties contained herein was not true and correct as
of the date hereof or will not be true and correct at and as of the Closing Date
with the same force and effect as if made at and as of the Closing Date (except
for changes permitted or contemplated by this Agreement), (ii) the occurrence of
any event which will result, or has a reasonable prospect of resulting, in the
failure of any condition specified in Article 7 hereof to be satisfied or (iii)
any notice or other communication from any third party alleging that the consent
of such third party is or may be required in connection with the transactions
contemplated by this Agreement or that such transactions otherwise may violate
the rights of or confer remedies upon such third party.
5.8 Actions by Merger Sub.
In its capacity as the sole stockholder of Merger Sub, EBIZ shall cause Merger
Sub to approve and adopt the Merger and to take all corporate action necessary
on its part to consummate the Merger and the transactions contemplated hereby.
Merger Sub shall not conduct any other business, and will have no other assets
or liabilities.
5.9 Amendment of Stock Option Plan.
Prior to or concurrently with the Effective Time, EBIZ shall take such action as
may be necessary, including obtaining any required approval by the shareholders
of EBIZ, to amend the EBIZ 1998 Equity Incentive Plan (the "Plan") and increase
the number of shares of EBIZ Common Stock available under the Plan, to cause
each unexpired and unexercised option to purchase shares of JBSI Common Stock
(each a "JBSI Option") that is outstanding as of the Effective Time to be
automatically converted at the Effective Time into an exercisable option (each
an "EBIZ Option") to purchase a number of shares of EBIZ Common Stock equal to
the number shares of JBSI Common Stock that could have been purchased under the
JBSI Option multiplied by 1.78, at a price per share of EBIZ Common Stock equal
to the option exercise price determined pursuant to the JBSI Option divided by
1.78. The date of grant of a substituted EBIZ Option shall be deemed to be the
date on which the corresponding JBSI Option was granted, and the expiration date
of each such substituted EBIZ Option shall be the date upon which the
corresponding JBSI Option would otherwise have expired. Except as otherwise
expressly stated above in this Section 5.9, the terms and conditions of each
substituted EBIZ Option shall be as set forth in the Plan, as in effect from
time to time. At the Effective Time, EBIZ shall assume all of JBSI's obligations
with respect to the JBSI Options as so amended and shall, from and after the
Effective Time, make available for issuance upon exercise of the EBIZ Options
all shares of EBIZ Common Stock covered thereby Within 15 days following the
Effective Date, EBIZ shall file a registration statement on Form S-8 with the
SEC to register the additional shares of EBIZ Common Stock subject to EBIZ
Options granted in replacement of JBSI Options; provided, EBIZ and such shares
of EBIZ Common Stock satisfy the requirements of using Form S-8.
5.10 Directors' and Officers' Indemnification.
The indemnification provisions of the Articles of Incorporation of the Surviving
Corporation as in effect immediately following the Effective Time shall not be
amended, repealed or otherwise modified after the Effective Time in any manner
that would adversely affect the indemnification rights thereunder, unless such
modification is required by law.
5.11. Private Offering Memorandum/ Information Statement.
EBIZ and JBSI shall prepare as soon as is reasonably practicable after the date
hereof the Private Offering Memorandum/ Information Statement relating to the
private offering of EBIZ Common Stock contemplated by the Merger and the
approval of the Merger by JBSI's stockholders EBIZ shall use its best efforts to
take any action required to be taken under applicable state blue sky or
securities laws in connection with the issuance of EBIZ Common Stock pursuant
hereto; provided, JBSI shall provide EBIZ its reasonable cooperation and
assistance in obtaining from the holders of any and all Merged Interests, such
representations, warranties and covenants as EBIZ shall reasonably require in
order to assure that the issuance of EBIZ Common Stock pursuant to this
Agreement is exempt from the registration requirements of the Securities Act and
of applicable Blue Sky laws and in order to permit EBIZ to make such filings, or
obtain such permits or qualifications, as may be required in connection
therewith under the Securities Act or applicable Blue Sky laws. EBIZ and JBSI
shall promptly furnish to each other all information, and take such other
actions, as may reasonably be requested in connection with any action by any of
them in connection with the preceding sentences. The information provided and to
be provided by EBIZ and JBSI, respectively, for use in the Private Offering
Memorandum/Proxy Statement shall not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
ARTICLE 6
TAX REPRESENTATIONS AND WARRANTIES
6.1 EBIZ Representations and Warranties.
EBIZ hereby represents and warrants to JBSI as follows:
(a) EBIZ has no plan or intention to reacquire any of its capital stock
issued in the Merger.
(b) EBIZ has no current plan or intention to, and will not, (a) liquidate JBSI;
merge JBSI with or into another corporation; sell or otherwise dispose of the
capital stock of JBSI except for transfers of capital stock to a corporation
that is a member of EBIZ's "qualified group" as defined in Treas. Reg.
ss.1.368-1(d)(4)(ii); or (b) cause JBSI to sell or otherwise dispose of any of
its assets or of any of the assets acquired from Merger Sub, except for
dispositions made in the ordinary course of business or transfers of assets to a
corporation controlled by JBSI.
(c) The liabilities of Merger Sub assumed by JBSI and the liabilities to which
the transferred assets of Merger Sub are subject were incurred by Merger Sub in
the ordinary course of its business.
(d) Following the Merger, EBIZ will cause JBSI to continue its historic business
or use a significant portion of its historic business assets in a business.
(e) EBIZ does not own, nor has it owned during the past five years, any
shares of the capital stock of JBSI.
(f) Neither EBIZ nor Merger Sub is an investment company as defined in
section 368(a)(2)(F)(iii) and (iv) of the Code.
6.2 Joint Representations and Warranties.
Each of EBIZ, Merger Sub and JBSI (each a "Party") hereby represents and
warrants to each other Party as follows:
(a) Each Party believes the fair market value of EBIZ capital stock and any
other consideration received by each JBSI shareholder will be approximately
equal to the fair market value of the JBSI capital stock surrendered in the
exchange.
(b) Each Party, and the shareholders of JBSI will pay their respective expenses,
if any, incurred in connection with the Merger.
(c) There is no intercorporate indebtedness existing between EBIZ and JBSI or
between Merger Sub and JBSI that was issued, acquired, or will be settled at a
discount.
(d) Following the Merger, each Party believes that JBSI will hold at least 90
percent of the fair market value of its net assets and at least 70 percent of
the fair market value of its gross assets and at least 90 percent of the fair
market value of Merger Sub's net assets and at least 70 percent of the fair
market value of Merger Sub's gross assets held immediately prior to the Merger.
For purposes of this representation, amounts paid by JBSI or Merger Sub to
dissenters, amounts paid by JBSI or Merger Sub to shareholders who receive cash
or other property, amounts used by JBSI or Merger Sub to pay reorganization
expenses, and all redemptions and distributions (except for regular, normal
dividends) made by JBSI will be included as assets of JBSI or Merger Sub,
respectively, immediately prior to the Merger.
ARTICLE 7
CONDITIONS PRECEDENT
7.1 Conditions to the Obligation of EBIZ to Close.
The obligation of EBIZ to consummate the transactions contemplated hereby shall
be subject to the satisfaction, on or prior to the Closing Date, of each of the
following conditions:
(a) during the period from the date of the Current JBSI Financial Statements to
the Closing Date, there shall not have occurred any material adverse change,
other than as set forth on any schedule or exhibit hereto, in the financial
condition, business or operation of JBSI taken as a whole, and EBIZ shall have
received at the Closing a certificate dated as of the Closing Date, signed by
the President and Chief Financial Officer of JBSI to that effect;
(b) each of the representations and warranties of JBSI contained in this
Agreement shall, in all material respects, be true when made and as of the
Closing Date, with the same effect as though such representations and warranties
had been made on and as of such date; each of the covenants and agreements of
JBSI to be performed on or prior to the Closing Date shall have been duly
performed in all material respects; and EBIZ shall have received at the Closing
a certificate to that effect dated as of the Closing Date and executed by the
President and Chief Financial Officer of JBSI;
(c) EBIZ shall have received an opinion from Porter & Hedges, LLP, counsel to
JBSI, substantially in the form of Exhibit E attached hereto;
(d) there shall not have been issued or be in effect any order of any court,
agency or other tribunal of competent jurisdiction which has the effect of
prohibiting or prohibits the performance of the Agreement and the transactions
contemplated thereby or imposes limitations on the ability of JBSI to exercise
and possess all of its rights, privileges, immunities and franchises or to
otherwise conduct its business (with limitations applicable only to all similar
entities engaged in similar business) as of the Closing Date;
(e) all proceedings, corporate or otherwise, to be taken in connection with the
transactions contemplated by this Agreement, including the shareholder approvals
of the transactions contemplated by this Agreement, shall have occurred and all
appropriate documents incident thereto as EBIZ may reasonably request shall have
been delivered to it, including, without limitation, the receipt of appropriate
consents from any third parties which may be necessary to effect the
transactions contemplated hereby;
(f) no action, suit or proceeding before any court or any governmental or
regulatory authority shall have been commenced or threatened, and no
investigation by any governmental or regulatory authority shall have been
commenced against the parties hereto or any of the affiliates, associates,
officers or directors, or any of them, seeking to restrain, prevent or change
the transactions contemplated hereby, or questioning the validity or legality of
any such transactions contemplated hereby, or questioning the validity or
legality of any such transactions, or seeking damages in connection with any of
such transactions;
(g) JBSI and each JBSI Subsidiary shall have received any requisite approvals to
this Agreement from all third parties having, under the terms of its respective
loan, lease and other agreements, the right to approve or reject this Agreement
or to cancel its agreement with JBSI on or before the Closing Date; JBSI hereby
represents that all such third parties will have been disclosed to EBIZ as of
the Closing Date;
(h) JBSI shall execute and deliver or cause to be executed and delivered to
EBIZ such documents as are required at the Closing, pursuant to Article 8;
(i) EBIZ and Bruce Parsons, Mike Colesante, Don Young, Nick Futter and such
other JBSI employees as are mutually acceptable to EBIZ and JBSI shall have
executed the employment agreements contemplated in Section 2.1;
(j) EBIZ and such members of its management as determined by the Compensation
Committee of the EBIZ Board of Directors shall have executed the employment
agreements contemplated in Section 2.1;
(k) the Board of Directors of EBIZ shall have made a reasonable good faith
determination that funds provided from operations of JBSI and the JBSI
Subsidiaries are sufficient to fund the operations of JBSI and the JBSI
Subsidiaries from the Effective Date through the 90 days following the Effective
Date;
(l) EBIZ shall have received (i) from Caldera Systems, Inc. ("Caldera"), with
respect to this Agreement and the transactions contemplated hereby, a written
waiver of the right to participate in certain sales of additional securities
contained in Section 13 of the Investor Rights Agreement dated September 15,
2000 by and between EBIZ and Caldera, and (ii) from The Canopy Group, Inc.
("Canopy"), with respect to this Agreement and the transactions contemplated
hereby, a written waiver of the investor's right of first refusal contained in
Section 3 of the Investors' Rights Agreement dated October 20, 2000 by and
between EBIZ and Canopy;
(m) EBIZ shall have received the Consent Letter (as defined hereafter) from
FINOVA and shall have made a reasonable good faith determination that the terms
of the JBSI Credit Facility as modified by the Consent Letter are acceptable to
EBIZ;
(n) EBIZ shall have received from JBSI, within 10 days of the date of this
Agreement, Schedule 3.15(j) and shall have made a reasonable good faith
determination that the information contained therein is acceptable to EBIZ; and,
(o) EBIZ shall have obtained such representations, warranties and covenants from
the holders of the Merged Interests as EBIZ deems reasonably necessary to assure
that the issuance of EBIZ Common Stock pursuant to this Agreement is exempt from
the registration requirements of the Securities Act and of applicable Blue Sky
laws and to permit EBIZ to make such filings, or obtain such permits or
qualifications, as may be required in connection therewith under the Securities
Act or applicable Blue Sky laws;
7.2 Conditions to the Obligation of JBSI to Close.
The obligation of JBSI to consummate the transactions contemplated hereby shall
be subject to the satisfaction, on or prior to the Closing Date, of each of the
following conditions:
(a) during the period from the date of the Current EBIZ Financial Statements to
the Closing Date, there shall not have occurred any Material Adverse Change,
other than as set forth on any schedule or exhibit hereto, in the financial
condition, business or operation of EBIZ taken as a whole, and JBSI shall have
received at the Closing a certificate dated as of the Closing Date, signed by
the Chief Executive Officer and Chief Financial Officer of EBIZ to that effect;
(b) each of the representations and warranties of EBIZ and Merger Sub contained
in this Agreement shall, in all material respects, be true when made and as of
the Closing Date, with the same effect as though such representations and
warranties had been made on and as of such date; each of the covenants and
agreements of EBIZ and Merger Sub to be performed on or prior to the Closing
Date shall have been duly performed in all material respects; and JBSI shall
have received at the Closing a certificate to that effect dated as of the
Closing Date and executed by the Chief Executive Officer and Chief Financial
Officer of EBIZ;
(c) JBSI shall have received an opinion from Holme Roberts & Owen LLP, counsel
to EBIZ, substantially in the form attached as Exhibit F hereto;
(d) JBSI's stockholders shall have approved the Merger pursuant to the
requirements of the TBCA, and JBSI shall have received all other approvals
reasonably necessary, in the opinion of JBSI, to consummate the Merger,
including, without limitation, the consents and waivers from third parties which
may be necessary to effect the transactions contemplated hereby;
(e) there shall not have been issued or be in effect any order of any court,
agency or other tribunal of competent jurisdiction which has the effect of
prohibiting or prohibits the performance of the Agreement and the transactions
contemplated thereby or imposes limitations on the ability of EBIZ to exercise
and possess all of its rights, privileges, immunities and franchises or to
otherwise conduct its business (with limitations applicable only to all similar
entities engaged in similar business) as of the Closing Date;
(f) all proceedings, corporate or otherwise, to be taken in connection with the
transactions contemplated by this Agreement, including the shareholder approvals
of the transactions contemplated by this Agreement, shall have occurred and all
appropriate documents incident thereto as JBSI may reasonably request shall have
been delivered to it, including, without limitation, the receipt of appropriate
consents from any third parties which may be necessary to effect the
transactions contemplated hereby;
(g) no action, suit or proceeding before any Governmental Entity shall have been
commenced or threatened, and no investigation by any governmental or regulatory
authority shall have been commenced against the parties hereto or any of the
affiliates, associates, officers or directors, or any of them, seeking to
restrain, prevent or change the transactions contemplated hereby, or questioning
the validity or legality of any such transactions contemplated hereby, or
questioning the validity or legality of any such transactions, or seeking
damages in connection with any of such transactions;
(h) EBIZ and each EBIZ Subsidiary shall have received any requisite approvals to
this Agreement from all third parties having, under the terms of its respective
loan, lease and other agreements, the right to approve or reject this Agreement
or to cancel its agreement with EBIZ on or before the Closing; EBIZ hereby
represents that all such third parties will have been disclosed to JBSI as of
the Closing Date;
(i) EBIZ shall execute and deliver or cause to be executed and delivered to
JBSI such documents as are required at the Closing, pursuant to Article 8;
(j) EBIZ and Bruce Parsons, Mike Colesante, Don Young, Nick Futter and such
other JBSI employees as are mutually acceptable to EBIZ and JBSI shall have
executed the employment agreements contemplated in Section 2.1;
(k) (k) EBIZ and such members of its management as determined by the
Compensation Committee of the EBIZ Board of Directors shall have executed the
employment agreements contemplated in Section 2.1; (l) the Board of Directors of
JBSI shall have made a reasonable good faith determination that funds provided
from operations of EBIZ and the EBIZ Subsidiaries are sufficient to fund the
operations of EBIZ and the EBIZ Subsidiaries from the Effective Date through the
90 days following the Effective Date;
(m) JBSI shall have received (i) from Caldera Systems, Inc. ("Caldera"), with
respect to this Agreement and the transactions contemplated hereby, a written
waiver of the right to participate in certain sales of additional securities
contained in Section 13 of the Investor Rights Agreement dated September 15,
2000 by and between EBIZ and Caldera, and (ii) from The Canopy Group, Inc.
("Canopy"), with respect to this Agreement and the transactions contemplated
hereby, a written waiver of the investor's right of first refusal contained in
Section 3 of the Investors' Rights Agreement dated October 20, 2000 by and
between EBIZ and Canopy; and,
(n) JBSI shall have received the Consent Letter (as defined hereafter) from
FINOVA and shall have made a reasonable good faith determination that the terms
of the JBSI Credit Facility as modified by the Consent Letter are acceptable to
JBSI.
7.3 JBSI Credit Facility.
The obligation of each of EBIZ and JBSI to consummate the transactions
contemplated hereby shall be subject to the receipt by JBSI prior to the
Effective Time of a written statement from FINOVA Capital Corporation ("FINOVA")
that (i) FINOVA consents to the Merger (the"Consent Letter") as required
pursuant to the Second Amended and Restated Loan and Security Agreement dated
May 25, 2000, between FINOVA and JBSI (the "JBSI Credit Facility"), and (ii) the
JBSI Credit Facility (a) shall continue to be in full force and effect following
the Effective Time as expressly modified by such terms as are set forth in the
Consent Letter, and (b) shall not be canceled or terminated as a result of the
Merger and other disclosed transactions contemplated hereby provided that all
conditions precedent set forth in the Consent Letter are satisfied.
ARTICLE 8
CLOSING
8.1 Documents to be Delivered by EBIZ.
At the Closing, EBIZ will deliver the following to JBSI:
(a) Share Certificates. Certificates representing the shares of EBIZ Common
Stock constituting the Merger Consideration;
(b) Certified Resolutions. Certified resolutions of each of the Board of
Directors of EBIZ and Merger Sub approving the execution, delivery and
performance of this Agreement and authorizing the consummation of the
transactions contemplated hereby;
(c) Officer's Certificate. A certificate, dated as of the Closing Date, signed
by the Chief Executive Officer and Chief Financial Officer of EBIZ, as required
pursuant to Section 7.2;.
(d) Opinion. A written opinion of Holme Roberts & Owen, LLP, counsel to EBIZ
addressed to JBSI, dated as of the Closing Date, in substantially the form
attached as Exhibit F;
(e) Good Standing Certificates. Governmental certificates showing that EBIZ and
Merger Sub are duly incorporated, validly existing and in good standing in their
respective states of incorporation and qualified to do business as a foreign
corporation in each state listed in Schedule 4.1(a), certified as of a date not
more than ten (10) days before the Closing Date;
(f) Stock Options. Notices of grant or equivalent documentation approved by
the Board of Directors of EBIZ and issued to each holder of JBSI Options,
evidencing the issuance of the EBIZ Options pursuant to the terms and conditions
set forth in Sections 1.3(d) and 5.9 hereof;
(g) Written Waivers. Written waivers from Caldera and Canopy contemplated in
Sections 7.1 and 7.2.
(h) JBSI Credit Facility Documents. Such documents and instruments as may be
required to be executed by EBIZ or any EBIZ Subsidiary by FINOVA in connection
with the transfer of the JBSI Credit Facility to the Surviving Corporation; and,
(i) Other Documents. Such additional certificates, instruments, documents,
information and materials as JBSI may reasonably request.
8.2 Documents to be Delivered by JBSI. At the Closing, JBSI will deliver the
following to EBIZ:
(a) Share Certificates. Certificates representing the shares of the
outstanding JBSI Common Stock and JBSI Preferred Stock;
(b) Certified Resolutions. Certified resolutions of the Board of Directors of
JBSI approving the execution, delivery and performance of this Agreement and
authorizing the consummation of the transactions contemplated hereby;
(c) Officer's Certificate. A certificate, dated as of the Closing Date,
signed by the President and Chief Financial Officer of JBSI, as required
pursuant to Section 7.1;
(d) Opinion. A written opinion of Porter & Hedges, LLP, counsel to JBSI
addressed to EBIZ, dated as of the Closing Date, in substantially the form
attached as Exhibit E;
(e) Good Standing Certificates. Governmental certificates showing that JBSI is
duly organized, validly existing and in good standing in the State of Texas and
qualified to do business as a foreign corporation in each state listed in
Schedule 3.1(a), certified as of a date not more than ten (10) days before the
Closing Date;
(f) Lock Up Agreement. Lock Up Agreements executed by JBSI stockholders as
required pursuant to Section 2.3(b) and in substantially the form attached as
Exhibit D hereto;
(g) Consent Letter. The Consent Letter FINOVA contemplated in Section 7.3;
(h) JBSI Credit Facility Documents. Such documents and instruments as may be
required to be executed by JBSI or any JBSI Subsidiary by FINOVA in connection
with the transfer of the JBSI Credit Facility to the Surviving Corporation; and,
(i) Other Documents. Such additional certificates, instruments, documents,
information and materials as EBIZ may reasonably request.
8.3 Mutual Deliveries.
At the Closing, each of EBIZ and JBSI, as applicable, shall execute and deliver
or cause to be executed and delivered:
(a) Articles of Merger substantially in the form attached as Exhibit A;
(b) A Shareholder Voting Agreement and Proxy, as required pursuant to Section
2.2;
(c) A Registration Rights Agreement as required pursuant to Section
2.3(a) and in substantially the form attached hereto as Exhibit C;
(d) The employment agreements between EBIZ and Bruce Parsons, Mike Colesante,
Don Young, Nick Futter and such other JBSI employees as are mutually acceptable
to EBIZ and JBSI contemplated in Section 2.1; and
ARTICLE 9
AMENDMENT AND WAIVER
9.1 Amendment and Modification.
This Agreement may only be amended or modified in a writing signed by EBIZ.
Merger Sub and JBSI at any time prior to the Closing Date.
9.2 Waiver.
At any time prior to the Closing Date, the parties hereto may by mutual
agreement extend the time for the performance of any of the obligations or other
acts of any other party hereto. Any party may waive any inaccuracies in the
representations and warranties of any other party contained herein or in any
schedule or document delivered pursuant hereto and waive compliance by any other
party with any of the covenants, agreements or conditions contained herein. Any
agreement on the part of a party hereto to any such extension or waiver shall be
valid only if set forth in an instrument in writing signed by the parties
hereto.
ARTICLE 10
TERMINATION
10.1 Termination by Parties.
This Agreement may be terminated prior to the Closing Date:
(a) (i) At the option of EBIZ, upon written notice to the other parties, if in
the good faith opinion of the Board of Directors of EBIZ, JBSI has breached any
of the representations and warranties or other covenants of this Agreement or
any condition precedent set forth in Section 7.1 has failed to occur and such
breach or noncompliance has not been cured in all material respects within 30
days after notice from EBIZ to JBSI of such default, or (ii) at the option of
JBSI, upon written notice to the other parties, if in the good faith opinion of
the Board of Directors of JBSI, either EBIZ or Merger Sub has breached any of
the representations and warranties or other covenants of this Agreement or any
condition precedent set forth in Section 7.2 has failed to occur and such breach
or noncompliance has not been cured in all material requested within 30 days
after notice from JBSI to EBIZ of such default;
(b) by mutual agreement of EBIZ and JBSI; and
(c) at the option of the respective Board of Directors of EBIZ or JBSI, if any
litigation is instituted against JBSI or EBIZ, the object of which is to enjoin
any party from proceeding with the transactions contemplated under this
Agreement or to seek damages against any party hereto or any officer, director
or agent of any party as a result of the transactions proposed under this
Agreement.
(d) by JBSI, if JBSI and EBIZ are not able to negotiate new terms for the Common
Stock Conversion Price and Preferred Stock Conversion Price as provided in
Section 1.3(f) above.
(e) by JBSI or EBIZ if the Merger is not completed by January 31, 2001.
10.2 Effect of Termination.
In the event this Agreement is terminated as provided in Section 10.1, this
Agreement shall be void and of no further force and effect, and, except as set
forth herein and Section 5.5 above, there shall be no further liability on the
part of EBIZ or JBSI or any of their respective directors, officers or
stockholders as a result of this Agreement. Section 5.5 shall survive any
termination of this Agreement. Nothing in this Section 10.2 shall relieve any
party from liability for any willful or intentional breach of this Agreement.
ARTICLE 11
INDEMNIFICATION
11.1 Definitions.
Capitalized terms used in this Article 11 and not defined elsewhere in this
Agreement shall have the meanings ascribed to them below:
"Applicable Stock Percentage" shall mean, with respect to each JBSI
Stockholder, the percentage that corresponds to a fraction, the numerator of
which is an amount equal to the total number of shares (on a fully diluted
basis) of JBSI Common Stock or JBSI Common Stock issuable on conversion of JBSI
Preferred Stock held by such JBSI Stockholder immediately prior to the Effective
Time and the denominator of which is an amount equal to the total number of
shares (on a fully diluted basis) of JBSI Common Stock or JBSI Common Stock
issuable on conversion of JBSI Preferred Stock outstanding as of immediately
prior to the Effective Time.
"Damages" shall mean any loss, liability, obligation, debt, claim, damage or
expense (including costs of investigation and defense and reasonable attorneys'
fees).
"Due Date" shall mean the date that is 30 days after the Indemnification
Determination Date.
"EBIZ Average Trading Price" shall mean, with respect to any trading day,
the average of the high and low bid prices for EBIZ Common Stock as reported by
the Nasdaq OTC Bulletin Board for such day.
"EBIZ Designated Representative" shall mean Jeffrey Rassas; provided, however,
if EBIZ designates any person to succeed Jeffrey Rassas as the EBIZ Designated
Representative by a writing executed by an authorized officer of EBIZ, then the
EBIZ Designated Representative shall mean such successor.
"EBIZ Indemnification Amount" shall mean the total amount of all Damages,
without any offset with respect to the JBSI Indemnification Amount, due and
payable to EBIZ pursuant to Section 11.3(b), as determined by Final Decision.
"EBIZ Share Value" shall mean the average of the per share EBIZ Average Trading
Price for the ten trading day prior to the Due Date.
"Escrow Agent" shall mean Colonial Trust, or such other escrow agent as may
be agreed upon in writing by the EBIZ Designated Representative and the JBSI
Designated Representative.
"Escrowed Shares" shall mean 5 percent of the shares of EBIZ Common Stock
to be delivered to the JBSI Stockholders pursuant to Section 1.3 of this
Agreement. All such shares referenced in this definition of escrowed shares
shall be deposited into an escrow account to be held by the Escrow Agent.
"Final Decision" shall mean a final, binding written agreement executed by
the EBIZ Designated Representative and the JBSI Designated Representative,
pursuant to which such Representatives agree as to the EBIZ Indemnification
Amount and the JBSI Indemnification Amount; provided, however, if such
Representatives cannot agree upon such Amounts, then Final Decision shall mean a
final, non-appealable decision of the arbitrator pursuant to Section 11.5,
setting forth such Amounts.
"Indemnification Cap" shall mean $1,000,000.
"Indemnification Claim" shall mean a claim asserted by the JBSI Designated
Representative pursuant to Section 11.3(a) or a claim asserted by the EBIZ
Designated Representative pursuant to Section 11.3(b), in each case, by
providing written notice of such claim to other Representative in accordance
with Section 11.4(a) below.
"Indemnification Determination Date" shall mean the date upon which all
Indemnification Claims are resolved by Final Decision.
"JBSI Designated Representative" shall mean Bruce Parsons, provided, however,
if the JBSI Stockholders designate any person to succeed Bruce Parsons as the
JBSI Designated Representative by a written consent executed by JBSI
Stockholders holding not less that a majority of votes eligible to be cast by
all shares of JBSI Common Stock and JBSI Preferred Stock held by the JBSI
Stockholders, then the JBSI Designated Representative shall mean such successor.
"JBSI Indemnification Amount" shall mean the total amount of all Damages,
without any offset with respect to the EBIZ Indemnification Amount, owed by EBIZ
to the JBSI Stockholders pursuant to Section 11.3(a), as determined by Final
Decision.
"JBSI Stockholders" shall mean (i) holders of JBSI Common Stock or JBSI
Preferred Stock immediately prior to the Effective Time, whose shares of stock
are converted in the Merger into the right to receive the Merger Consideration.
"Net Indemnification Amount" shall mean the difference between (i) the JBSI
Indemnification Amount and (ii) the EBIZ Indemnification Amount.
11.2 Survival; Right to Indemnification Not Affected by Knowledge.
All representations, warranties, covenants and obligations in this Agreement or
in the certificates delivered pursuant to Sections 7.1(a), 7.1(b), 7.2(a) and
7.2(b) or any other certificate delivered pursuant to this Agreement (other than
the Articles of Merger) will survive until the expiration of all periods during
which a "Notice of Claim" may be submitted as provided in Section 11.4(a);
provided, however, if any Notice of Claim is submitted within the time period
provided for the submission thereof pursuant to Section 11.4(a), the
non-survival of any such representation, warranty, covenant or obligation shall
not affect, terminate or prejudice any Indemnification Claim as to which such
Notice of Claim is timely submitted. The right to indemnification, payment of
Damages, or other remedy based on the representations, warranties, covenants and
obligations in this Agreement will not be affected by any investigation
conducted with respect to, or any knowledge acquired or capable of being
acquired, whether before or after the execution and delivery of this Agreement
or the Closing Date, with respect to the accuracy of or compliance with any such
representation or warranty, or the performance of or compliance with any such
covenant or obligation.
11.3 Indemnification after Effective Time.
If the Merger is consummated pursuant to this Agreement, the indemnification
provisions of this Article 11 shall be effective immediately after the Effective
Time:
(a) Indemnification of JBSI Stockholders. In accordance with the procedures and
subject to the limitations set forth in Sections 11.4 and 11.5 below, EBIZ shall
defend, indemnify and hold harmless the JBSI Stockholders from and against any
Damages arising, directly or indirectly, from and in connection with (a) any
inaccuracy or breach of any representation or warranty made by EBIZ in this
Agreement or in any certificate delivered by EBIZ pursuant to this Agreement
(except the Articles of Merger), or (b) any failure by EBIZ to perform or comply
with any covenant or obligation of EBIZ in this Agreement.
(b) Indemnification of EBIZ. In accordance with the procedures and subject to
the limitations set forth in Sections 11.4 and 11.5 below, the JBSI Stockholders
shall defend, indemnify and hold harmless EBIZ from and against any Damages
arising, directly or indirectly, from and in connection with (a) any inaccuracy
or breach of any representation or warranty made by JBSI in this Agreement or in
any certificate delivered by JBSI pursuant to this Agreement (except the
Articles of Merger), or (b) any failure by JBSI to perform or comply with any
covenant or obligation of JBSI in this Agreement.
(c) Intended Third Party Beneficiaries. The provisions contained in this
Article 11 are intended to benefit the JBSI Stockholders, provided the rights
and remedies of the JBSI Stockholders under this Article 11 may only be
exercised by or on their behalves by the JBSI Designated Representative, and are
subject to the limitations and conditions set forth in this Article 11. The EBIZ
stockholders shall not constitute third party beneficiaries under this Agreement
and shall have no right to enforce any right or remedy hereunder.
(d) Exclusive Remedies. After the Effective Time, the remedies provided in this
Article 11 shall be the sole and exclusive remedies available to JBSI, the JBSI
Stockholders and EBIZ with respect to the matters described in Sections 11.3(a)
or 11.3(b) of this Agreement.
11.4 Limitations on Indemnification Obligations.
(a) Time Limit to Assert Claim. All Indemnification Claims held by the JBSI
Stockholders or EBIZ shall expire and be of no further force unless the JBSI
Designated Representative submits to the EBIZ Designated Representative or the
EBIZ Designated Representative submits to the JBSI Designated Representative, as
the case may be, a Notice of Claim meeting the requirements set forth in this
subsection (a) within 9 months after the Effective Time. If a designated
representative submits a Notice of Claim to the other designated representative
within 30 days of the end of such 9 month period, the receiving designated
representative shall have 30 days from such submission date to file a Notice of
Claim with the other designated representative. To be effective, a Notice of
Claim shall be in writing, signed by the Designated Representative submitting
the Indemnification Claim, delivered in accordance with Section12.6 of this
Agreement, and specify, in general terms, the basis for the claim and the amount
of Damages being claimed.
(b) De minimus Claim. If it is determined by Final Decision that the Net
Indemnification Amount is less than $250,000.00, then no person shall have any
obligation to any other person under Section 11.3, and the Escrowed Shares shall
be transferred to the JBSI Stockholders pursuant to Section 11.4(f) of this
Agreement. If the Net Indemnification Amount is greater than $250,000.00, then
the party prevailing under any Final Decision shall be entitled to recover its
full Indemnification Amount, subject to any other limitations set forth in this
Article 11, including, without limitation, Sections 11.4(c) and (e) hereof, it
being intended that such Indemnification Amount shall be payable from the first
dollar.
(c) Offset of Claims. If it is determined by Final Decision that the EBIZ
Indemnification Amount is greater than the JBSI Indemnification Amount, then the
JBSI Indemnification Amount shall be offset against the EBIZ Indemnification
Amount, the JBSI Stockholders shall not be entitled to any recovery whatsoever
with respect to their Indemnification Claims, and EBIZ shall only be entitled to
recover with respect to its Indemnification Claims an amount equal to the excess
of the EBIZ Indemnification Amount over the JBSI Indemnification Amount. If it
is determined by Final Decision that the JBSI Indemnification Amount is greater
than the EBIZ Indemnification Amount, then the EBIZ Indemnification Amount shall
be offset against the JBSI Indemnification Amount, EBIZ shall not be entitled to
any recovery whatsoever with respect to its Indemnification Claims, and the JBSI
Stockholders shall only be entitled to recover with respect to their
Indemnification Claims an amount equal to the excess of the JBSI Indemnification
Amount over the EBIZ Indemnification Amount.
(d) Due Date. All amounts which become payable pursuant to this Article 11 shall
be due and payable on the Due Date.
(e) Indemnification Cap. Notwithstanding anything in this Section 10 to the
contrary, neither the JBSI Stockholders, as a group, nor EBIZ, shall be entitled
to any recovery in excess of the Indemnification Cap.
(f) Escrow. The Escrowed Shares, when initially issued, shall be issued to the
Escrow Agent as nominee of the JBSI Stockholders, such shares to be deposited in
an escrow account. The Escrowed Shares shall be allocated against the number of
shares of EBIZ Common Stock to which each JBSI Stockholder is entitled on a pro
rata basis in accordance with the relative Applicable Stock Percentage of each
JBSI Stockholder. The Escrowed Shares shall be held by the Escrow Agent in
escrow, and shall be transferred or released by the Escrow Agent only as
follows. If no Notice of Claim is submitted by the EBIZ Designated
Representative to the JBSI Designated Representative within the applicable time
period provided in Section 11.4(a), then the Escrow Agent shall promptly
transfer all of the Escrowed Shares to the JBSI Stockholders on a pro rata basis
in accordance with the relative Applicable Stock Percentage of each JBSI
Stockholder. If a Notice of Claim is submitted by the EBIZ Designated
Representative to the JBSI Designated Representative within the applicable time
period provided in Section 11.4(a), then the Escrow Agent shall hold the
Escrowed Shares until the first to occur of the issuance of a Final Decision or
the waiver and release by EBIZ of the Indemnification Claims to which the Notice
of Claim relates. If the Final Decision results in EBIZ being entitled to no
payment pursuant to this Article 11 or if EBIZ waives and releases its
Indemnification Claims, then the Escrow Agent shall promptly transfer all of the
Escrowed Shares to the JBSI Stockholders on a pro rata basis in accordance with
the relative Applicable Stock Percentage of each JBSI Stockholder. If, however,
pursuant to the Final Decision it is determined that EBIZ is entitled pursuant
to this Article 11 to receive payment with respect to its Indemnification
Claims, then the Escrow Agent shall transfer to EBIZ on the Due Date such number
of Escrowed Shares as have an aggregate EBIZ Share Value equal to the amount of
such payment and shall transfer all of the remaining Escrowed Shares to the JBSI
Stockholders on a pro rata basis in accordance with the relative Applicable
Stock Percentage of each JBSI Stockholder. Any JBSI Stockholder may, but shall
not be required, to redeem any Escrowed Shares allocable to him that are
required to be transferred to EBIZ pursuant to this subsection (f) by paying to
the Escrow Agent, prior to the transfer thereof to EBIZ, the EBIZ Share Value of
such Escrowed Shares. Any Escrowed Shares that are so redeemed shall be
transferred to the redeeming JBSI Stockholder and the cash paid to redeem such
Escrowed Shares shall be paid, in lieu of such shares, to EBIZ.
(g) Non-Recourse Obligations. EBIZ's sole recourse with respect to any amount to
which it is entitled to receive from the JBSI Stockholders pursuant to this
Article 11 shall be to the Escrowed Shares. No JBSI Stockholder shall have any
personal liability to EBIZ whatsoever under this Article 11.
(h) Payment to JBSI Stockholders. Any amount which EBIZ is obligated to pay to
the JBSI Stockholders pursuant to this Article 11 shall be payable to the JBSI
Stockholders on a pro rata basis in accordance with the relative Applicable
Stock Percentage of each JBSI Stockholder. At the option of the Board of EBIZ,
each JBSI Stockholder shall receive any amount to which it is entitled under
this Article 11 either in cash or in EBIZ Common Stock, valued at the EBIZ Share
Value.
11.5 Dispute Resolution Procedure.
Within the 10 days afterthe the first date upon which each Designated
Representative has submitted a Notice of Claim to the other, or, if only one
Designated Representative submits a Notice of Claim, within 10 days after the
expiration of the last deadline for the submission of a Notice of Claim pursuant
to Section 11.4(a) (such 10th day is referred to herein as the "Base Date"), the
EBIZ Designated Representative and the JBSI Designated Representative shall meet
and engage in good faith negotiations to resolve any pending Indemnification
Claims. If the Designated Representatives cannot resolve the dispute within 30
days after the Base Date, the Designated Representatives shall mediate the
dispute in accordance with the Commercial Mediation Rules of the American
Arbitration Association ("AAA"), but the mediation proceeding may not revoke or
revise any provision of this Agreement. If within 60 days after the Base Date
the matter has not been resolved to the satisfaction of the Designated
Representatives, either Designated Representative may submit the matter to
arbitration in accordance with the Commercial Arbitration Rules of the AAA, by a
sole arbitrator, but the arbitration proceeding may not revoke or revise any
provision of this Agreement. The arbitrator selected shall be an independent
third party and shall have knowledge and experience in the matters addressed by
the claim. Arbitration shall be the sole and exclusive remedy of the JBSI
Stockholders and EBIZ with respect to any Indemnification Claim; provided, that
the arbitrator shall not have the power or authority to award consequential,
incidental or punitive damages. Unless all the parties to an arbitration
otherwise consent in writing, the location of the arbitration hearings and the
place of entry of the award shall be in Phoenix, Arizona. The parties consent to
exclusive jurisdiction of, and agree that sole venue will lie in, the state and
federal courts in Arizona or the state of the otherwise agreed location for any
allowable judicial proceeding relating to any arbitration under this Agreement,
including entry of a judgment on the award. The arbitration award shall be final
and binding and shall not be reviewable in any court on any grounds except
corruption, fraud or undue means of a party or for evident partiality or
corruption of the arbitrator. The parties intend to eliminate all other court
review of the award and the arbitration proceedings. Except for a proceeding to
enforce or confirm an award or except for a proceeding brought by all parties to
the dispute to vacate or modify an award, the initiation of any suit relating to
an Indemnification Claim that is arbitrable under this Agreement shall
constitute a material breach of this Agreement.
11.6 Exercise of Rights with Respect to Escrowed Shares.
During the period the Escrowed Shares are held in escrow pursuant to Section
11.4(f), the JBSI Stockholders shall be entitled to exercise the voting rights
with respect to such shares in proportion to their relative Applicable Stock
Percentages. The JBSI Stockholders shall also be entitled to any dividends or
other distributions with respect to the Escrowed Shares in such proportions.
ARTICLE 12
MISCELLANEOUS
12.1 Entire Agreement.
This Agreement, and the exhibits and schedules attached hereto, and the
agreements contemplated by this Agreement contain the entire agreement among the
parties and supersede all prior agreements, arrangements and understandings
relating to the subject matter hereof. There are nor written or oral agreements,
understandings, representations or warranties between the parties other than
those set forth or referred to in this Agreement.
12.2 Expenses. All legal and other costs and expenses incurred in connection
with this Agreement and the transactions contemplated hereby shall be paid by
the party incurring such costs and expenses. Notwithstanding the foregoing, if
this Agreement is terminated by a party (the "Non-breaching Party") as a result
of a material breach by the other party (the "Breaching Party") of its covenants
or agreements contained herein or the representations and warranties made by it
herein, the Breaching Party shall reimburse the Non-breaching Party for all
reasonable out-of-pocket fees and expenses (including, without limitation, fees
and expenses of counsel and accountants) incurred in connection with the
negotiation, preparation and performance of this Agreement and the transactions
contemplated hereby. Such payment shall be made by the Breaching Party within 5
business days of receipt of documentation from the Non-breaching Party in
reasonable detail supporting the amount of such costs and expenses. The remedies
set forth in this Section 12.2 shall be in addition to any other rights and
remedies allowed by law.
12.3 Attorneys Fees. Notwithstanding Section 12.2 above, in the event of any
proceeding to enforce this Agreement, the prevailing party shall be entitled to
receive from the losing party all reasonable costs and expenses, including the
reasonable fees of attorneys, accountants and other experts, incurred by the
prevailing party in investigating and prosecuting (or defending) such action at
trial or upon any appeal.
12.4 Section Headings. The section headings contained in this Agreement are
for reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
12.5 Assignment. This Agreement shall not be assigned by any party without the
written consent of the other parties and any attempted assignment without such
written consent shall be null and void and without legal effect.
12.6 Notices. All notices hereunder shall be deemed given if in writing and
delivered personally or sent by telex, telegram, telecopier, registered mail or
certified mail (return receipt requested) to the parties at the addresses below
(or at such other addresses as shall be specified by like notice). Any notice,
however given, shall be effective five days after it is sent.
If to EBIZ: EBIZ Enterprises, Inc.
15695 North 83rd Way
Scottsdale, AZ 85260
Attn: Jeffrey I. Rassas
Fax: 480-778-1001
With copies to: Holme Roberts & Owen, LLP
Attn: David Little
111 East Broadway
Suite 1100
Salt Lake City, UT 84111-5233
Fax: 801-521-9639
If to JBSI: Jones Business Systems, Inc.
13715 Murphy Road
Suite D
Stafford, TX 77477
Attn: Bruce Parsons
Fax: 281-403-8591
With copies to: Porter & Hedges, L.L.P.
Attn: Robert G. Reedy
700 Lousiana, 35th Floor
Houston, TX 77002
Fax: 713-226-0274
Steve Shadle
2260 4th Avenue, Suite 2000
Yuma, AZ 85364
Fax: (520) 782-2310
12.7 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Arizona without regard to conflict of
law principles.
12.8 Equitable Remedies. The parties acknowledge that the remedies at law may be
inadequate to protect against any default hereunder, and consent to the granting
of injunctive relief or other forms of equitable relief by a court of competent
jurisdiction or a similar judicial body, whether temporary, preliminary or
final, whether or not actual damages can be shown.
12.9 Number of Days. In computing the number of days for purposes of this
Agreement, all days will be counted, including Saturdays, Sundays and holidays;
provided, however, that if the final day of any time period falls on a Saturday,
Sunday or day that is a legal holiday in the State of Arizona, then the final
day will be deemed to be the next day that is not a Saturday, Sunday or day that
is a legal holiday in the State of Arizona.
12.10 Provisions Severable. The provisions of this Agreement are independent of
and severable from each other, and no provision will be affected or rendered
invalid or unenforceable by virtue of the fact that for any reason any other or
others of them may be invalid or unenforceable in whole or in part. Further, if
a court of competent jurisdiction determines that any provision of this
Agreement is invalid or unenforceable as written, the court may interpret,
construe, rewrite or revise such provision, to the fullest extent allowed by
law, so as to make it valid and enforceable, consistent with the intent of the
parties hereto.
12.11 Construction. The parties hereto hereby acknowledge and agree that each
party has participated in the drafting of this Agreement and that this Agreement
has been, to the extent it was felt necessary, reviewed by the respective legal
counsel for the parties hereto and that the rule of construction to the effect
that any ambiguities are to be resolved against the drafting party will not be
applied to the interpretation of this Agreement. No inference in favor of, or
against, any party will be drawn from the fact that one party has drafted any
portion hereof.
12.12 Headings. The headings contained in this Agreement are for convenience
only and will not affect the meaning or interpretation of this Agreement.
12.13 Counterparts. This Agreement may be executed in any number of
counterparts, each of which will be deemed to be an original as against any
party whose signature appears thereon, and all of which will together constitute
one and the same instrument. This Agreement will become binding when one or more
counterparts hereof, individually or taken together, bears the signatures of all
of the parties reflected hereon as the signatories. Any photocopy or
telefacsimilie of this Agreement, with all signatures reproduced on one or more
sets of signature pages, will be considered for all purposes as if it were an
executed counterpart of this Agreement.
12.14 Recitals, Schedules and Exhibits. The recitals, schedules and exhibits
referred to in this Agreement shall be construed with and are an integral part
of this Agreement and are incorporated herein by this reference.
IN WITNESS WHEREOF, this Agreement has been executed by each
of the parties as of the day and year first above written.
EBIZ:
EBIZ ENTERPRISES, INC.
By:/s/ Jeffrey I. Rassas
Jeffrey I. Rassas
Chief Strategic Officer
By:/s/ David Shaw
David Shaw
Chief Executive Officer
MERGER SUB:
By:/s/ David Shaw
David Shaw, President
JBSI:
JONES BUSINESS SYSTEMS, INC.
By:/s/ Bruce Parsons
Bruce Parsons, President
EXHIBIT AND SCHEDULE LIST
Exhibit A Form of Articles of Merger
Exhibit B Employment Agreement Term Sheet
Exhibit C Form of Registration Rights Agreement
Exhibit D Form of Lock-Up Agreement
Exhibit E Form of Opinion of Porter & Hedges, L.L.P.
Exhibit F Form of Opinion of Holme Roberts & Owen, LLP
Schedule 3.1(a) JBSI Jurisdictions of Qualification
Schedule 3.1(b) JBSI Interests in Other Business Entities
Schedule 3.3 JBSI Approvals and Consents
Schedule 3.5 JBSI Options, Warrants and Convertible Securities
Schedule 3.6(a) JBSI Financial Statements
Schedule 3.6(b) JBSI Additional Liabilities
Schedule 3.9 JBSI Adverse Changes and Events
Schedule 3.10 JBSI Defaults
Schedule 3.11 JBSI Litigation
Schedule 3.12(a) JBSI Plans
Schedule 3.12(e) Excess Parachute Payments
Schedule 3.12(g) JBSI Employee Contracts, Etc.
Schedule 3.14 JBSI Material Contracts and Insurance Policies
Schedule 3.15(a) JBSI Tax Returns
Schedule 3.15(e) JBSI Taxes
Schedule 3.15(h) JBSI Certain Tax Exceptions
Schedule 3.15(j) JBSI Certain Tax Elections, Etc.
Schedule 3.16 JBSI Title Defects
Schedule 3.18(b) JBSI Intellectual Property
Schedule 3.22 JBSI Shareholder List
Schedule 4.1(a) EBIZ Jurisdictions of Qualification
Schedule 4.1(b) EBIZ Subsidiaries
Schedule 4.3 EBIZ Approvals and Consents
Schedule 4.6 EBIZ Options, Warrants and Convertibles
Schedule 4.7(a) EBIZ Financial Statements
Schedule 4.7(b) EBIZ Additional Liabilities
Schedule 4.10 EBIZ Adverse Changes and Events
Schedule 4.11 EBIZ Defaults
Schedule 4.12 EBIZ Litigation
Schedule 4.13(a) EBIZ Plans
Schedule 4.13(e) EBIZ Excess Parachute Payments
Schedule 4.13(g) EBIZ Employee Contracts
Schedule 4.15 EBIZ Material Contracts and Insurance Policies
Schedule 4.16(a) EBIZ Tax Returns
Schedule 4.16(e) EBIZ Taxes due or unfiled or extended
Schedule 4.16(h) EBIZ Certain Tax Exceptions
Schedule 4.16(j) EBIZ Certain Tax Elections, Etc.
Schedule 4.17 EBIZ Encumbrances
Schedule 4.19(b) EBIZ Intellectual Property