Exhibit 10.1
A.M.S. Marketing, Inc.
7040 W. Palmetto Park Road
Building 4, Suite 572
Boca Raton, Florida 33433
April 2, 2001
IPlatform, Inc.
100 Front Street East, 4th Fl.
Toronto, Ontario
Canada M5V 1E1
Re: Proposed Merger
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Gentlemen:
This letter confirms our mutual intent concerning the merger of
IPlatform, Inc., a Delaware corporation ("IPI"), with and into A.M.S. Marketing,
Inc., a Delaware corporation ("AMS") with a capital structure of 20,000,000
shares of authorized common stock, par value $.001 per share, of which 4,588,900
shares are issued and outstanding as of the date hereof, pursuant to Section 251
of the General Corporation Law of the State of Delaware (the "Merger"). Upon
execution of this letter by you, we expect that the parties would immediately
commence good faith negotiations with the objective of executing a definitive
agreement and plan of merger (the "Agreement").
1. The parties to the Agreement would be IPI and AMS.
2. The Agreement is expected to provide, among other things,
that:
(a) IPI shall be merged with and into AMS, with AMS as the
survivor of the Merger. Following the Merger, AMS will change its name
to I Platform, Inc. (AMS, following the Merger and such name change,
herein the "Survivor").
(b) The Merger shall be structured as a tax free
reorganization pursuant to the applicable sections of the Internal
Revenue Code of 1986, as amended (the "Code").
(c) The Survivor shall amend its Articles of Incorporation to
increase its authorized shares of common stock to 100,000,000 shares,
$.001 par value per share.
(d) The Agreement shall provide that the Merger Shares (as
hereinafter defined) shall be issued to the stockholders of IPI, on a
share for share basis. As used herein, "Merger Shares" shall mean that
number of shares of AMS common stock equal to the sum of (i) 8,233,333,
representing the total number of shares of IPI common stock, par value
$.001 per share (the "IPI Common Stock"), issued and outstanding on the
date hereof, plus (ii) that number of Exchangeable Shares (as
hereinafter defined) that are exchanged, on a share for share basis,
into shares of IPI Common Stock on or prior to the Merger. AMS shall
reserve for issuance, such number of its authorized but unissued shares
of common stock as may be required to be issued upon exchange of any
outstanding shares of Exchangeable Shares following the Merger. As of
the date hereof, there are 4,666,667 Exchangeable Shares issued and
outstanding. As used herein, "Exchangeable Shares" shall mean the
non-voting common shares of IPI's wholly owned subsidiary, IPlatform
Canada Inc., a corporation formed under the laws of the Province of
Ontario ("IP Canada) issued in connection with the acquisition by IP
Canada of all of the issued and outstanding capital stock of RammGramph
Limited, a corporation formed under the laws of the Province of Ontario
("RLtd."), and RammGraph Inc., a corporation formed under the laws of
Arizona ("RInc."), which shares are by their terms exchangeable, on a
share for share basis, into shares of IPIC Common Stock.
(e) The Merger Shares and the shares of AMS common stock
issuable in exchange for the Exchange Shares shall be registered with
the Securities and Exchange Commission (the "SEC") pursuant to a Form
S-4 Registration Statement, and such Registration Statement shall be
declared effective by the SEC prior to the closing of the Agreement.
(f) Upon the effectiveness of the Registration Statement, a
proxy statement or information statement shall be mailed to the
stockholders of AMS and IPI, and the stockholders of both corporations
must approve the Merger.
(g) Prior to or upon completion of the Merger, as required by
Securities Exchange Act Rule 15c2-11, AMS shall file Form 211 with the
National Association of Securities Dealers, Inc. in order to initiate
trading of AMS's common stock on the OTC Bulletin Board.
(h) The Bylaws of AMS shall remain the bylaws of the Survivor.
3. Prior to the closing of the Merger, the parties shall conduct
their respective "due diligence" investigations, during which the parties agree
to produce to the other, subject to the terms of customary confidentiality
covenants, all reasonably requested information, including, without limitation,
the following:
(a) The parties' respective audited financial statements for
the periods ended December 31, 2000 and 1999, prepared in accordance
with United States GAAP (including with respect to IPI, its
consolidated financial statements reflecting the results of operations
of IPI's subsidiaries, IP Canada, RLtd., RInc., and 3668703 Canada
Inc., a corporation formed under the laws of Canada ("3668703";
together with IP Canada, Rltd., RInc., the "Subsidiaries";
(b) IPI's reviewed interim financial statements for the
quarterly periods ended March 31, 2001 and March 31, 2000, prepared in
accordance with United States GAAP except as otherwise noted therein;
(c) AMS's Form 10-KSB for the fiscal year ended December 31,
2000;
(d) AMS's Form 10-QSB for the quarterly period ended March 31,
2001;
(e) The parties' respective tax returns filed with all
jurisdictions for fiscal years 2000 and 1999 (if applicable);
(f) Certificates of Good Standing of each of AMS, IPI, and the
Subsidiaries from the jurisdiction in which each was incorporated and
from such other jurisdictions where each is qualified to do business;
and each party's respective certified copies of Articles of
Incorporation and Bylaws and all amendments thereto;
(g) Such information and reports on pending or threatened
litigation, claims or disputes as may be reasonably requested;
(h) A list of AMS's stockholders, as evidenced by the records
maintained by AMS's transfer agent; and
(i) IPI's business plan for operations of the Survivor
following the closing of the Merger.
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The results of each party's due diligence investigations must
be satisfactory to it, each in its sole discretion.
4. The Agreement shall contain, among other things, the customary
covenants, representations and warranties and provisions for indemnification by
IPI and AMS (including those as to corporate organization, authorization and
consents, ownership of assets necessary for the conduct of the businesses
acquired, conflicts with other instruments, title, merchantability of inventory,
disclosure, litigation, intellectual property rights, liens, leases and
contracts, employment agreements and other compensation arrangements and
benefits (including unfunded obligations under pension plans), the absence of
undisclosed liabilities, ERISA, environmental matters, financial statements,
taxes, absence of material adverse changes, etc.) shall survive the closing of
the Merger to the extent the parties may agree. IPI's representations and
warranties shall include, among other things, representations that it owns,
directly or indirectly, 100% of the outstanding stock of each of the
Subsidiaries. The Agreement shall further be conditioned upon the parties
obtaining requisite consents and approvals to the Agreement, including those of
lenders and governmental authorities and agencies. The directors and officers of
the parties shall agree to vote any shares held by them in favor of the Merger.
5. Neither IPI nor AMS shall, without the prior consent of the
other, make any public statement, announcement or release to trade publications
or to the press, or make any statements to any competitor, customer or any third
party, with respect to this letter of intent or discussions and negotiations
between the parties, except to the extent that AMS is advised by its counsel
that a public statement is required by law and then only upon prior notice to
IPI.
6. Each party agrees that it will not, for a period of sixty (60)
days following the date of this Letter of Intent:
(a) solicit any other party to participate in any business
combination, merger, tender offer, or any transaction alternative to
the Merger;
(b) negotiate in response to any unsolicited proposal
regarding transactions of the type referred to in (a), above;
(c) supply any information to or for the benefit of any third
party contemplating transactions of the type referred to in (a), above,
other than press releases or documents required to be filed with the
SEC; or
(d) reveal to any person (other than to its executives,
directors, counsel and other business advisors and consultants on a
confidential need-to-know basis) any information concerning our
negotiations. Notwithstanding the foregoing, nothing shall preclude AMS
from making such public disclosures as it deems necessary, based on the
advice of its counsel, in order to comply with the timely public
disclosure obligations arising under the federal securities laws or the
rules or policies of the NASD; provided that AMS will use its best
efforts to communicate to you its intention to make any such disclosure
as soon as is practicable after determination to make such disclosure
is made.
The provisions of this paragraph 6 (b), (c), and (d) shall not apply to AMS in
the event its Board of Directors determines, following advice of counsel, that
it must consider competing or alternative proposals presented to it, in order to
fulfill its fiduciary duties to its stockholders. If the Board should elect to
accept any such competing or alternative proposal and the closing thereof shall
occur on or before the expiration of six months from the date hereof, then, upon
such closing, AMS agrees to reimburse IPI for all of its out-of pocket expenses
incurred in connection with the transaction contemplated hereunder (including
any expenses or advances made on behalf of AMS as provided hereunder) up to a
maximum of $100,000.
7. The parties agree that until the closing of the Merger and
except as otherwise contemplated herein: (a) the operations of the parties'
respective businesses will be conducted only in the ordinary course; (b) the
operations, books and records, and accounting and other systems of the parties
will be maintained and kept on a basis consistent with current operations,
books, records, and accounting and other systems; and (c) no dividends will be
paid or shares of stock redeemed or cash distributed by either party.
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8. Each party represents and warrants to the other that it knows
of no, and shall indemnify the other against any liability to, any broker,
finder, consultant or other person entitled to a broker's or finder's or similar
fee in connection with the transaction outlined herein.
9. IPI will bear all expenses incurred in connection with the
preparation and execution of this Letter of Intent and the Agreement. Further,
the Agreement shall provide that all additional reasonable expenses of both
parties, their respective counsel, accountants and other advisors, including out
of pocket expenses, shall be borne entirely by IPI, including without
limitation, the costs of registration, proxy statements or information
statements and registration fees. In the event no Agreement is executed or if
the Merger is not implemented for any reason whatsoever, including the lack of
shareholder approval, IPI shall nevertheless reimburse AMS for 100% of its costs
and expenses promptly upon submission of invoice therefor. Upon request, IPI
shall advance reimbursement of AMS's expenses to AMS during the preparation of
the Agreement, the registration statement and the other documents necessary for
the implementation of the Letter of Intent. Simultaneous with the execution of
this Letter of Intent, IPI will lend to AMS the sum of $25,000 which shall be
used by AMI to satisfy its outstanding obligations, including the repayment of a
$15,000 loan to AMS by its president and controlling shareholder, Alfred M.
Schiffrin ("Schiffrin"). If for any reason the Merger does not occur as shall be
provided in the Agreement, AMS agrees to repay such loan by the issuance to IPI
of 25,000 restricted shares of AMS common stock in full satisfaction thereof.
10. In the event stockholders of IPI ("Exercising IPI
Stockholders") exercise appraisal rights as provided for under Section 262 of
the General Corporation Law of the State of Delaware ("Appraisal Rights"), and
in the event the Exercising IPI Stockholders hold not less than ten percent
(10%) of the issued and outstanding shares of IPI immediately prior to the
closing of the Merger, either party shall be entitled to terminate the
Agreement. In the event stockholders of AMS ("Exercising AMS Stockholders")
exercise Appraisal Rights, and in the event the Exercising AMS Stockholders hold
not less than ten percent (10%) of the issued and outstanding shares of AMS
immediately prior to the closing of the Merger, either party shall be entitled
to terminate the Agreement. In calculating the percentage holdings of the
Exercising AMS Stockholders, the Merger Shares shall not be considered to be
issued and outstanding.
11. This letter sets forth the terms of our preliminary
discussions but it is not to be a binding or enforceable agreement, but as a
statement of the terms of the proposed transaction to be negotiated between the
parties. The parties will be legally bound only by a definitive Agreement,
executed and delivered by each of them (and such other related agreements as may
be necessary or appropriate to carry out the intent expressed herein)
containing, among others, the terms outlined above. This Letter of Intent shall
terminate upon the earlier of (a) the execution and delivery of the Agreement
(b) sixty (60) days from the date hereof unless extended in writing by an
agreement signed by both parties hereto. Notwithstanding the foregoing, the
parties expressly agree that the respective obligations of the parties under
paragraphs 5, 6, 8 and 9 shall be binding upon them, respectively and the
respective obligations of the parties under paragraphs 5, 6, 8 and 9 shall
survive the termination of this Letter of Intent.
12. This Letter of Intent is not to be relied upon by or deemed to
be for the benefit of any third party.
13. Simultaneous with the execution of this Letter of Intent, IPI
and Schiffrin are entering into an agreement pursuant to which Schiffrin has
agreed to sell to IPI, and IPI has agreed to purchase from Schiffrin, upon
consummation of the Merger, an aggregate of 3,800,000 shares of AMS's common
stock owned of record and beneficially by Schiffrin on the terms and conditions
set forth therein.
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If this letter of intent correctly states our current intentions,
please sign one of the enclosed counterparts and return it to the undersigned.
This letter may be signed in one or more counterparts, each of which shall be
deemed an original but all of which together shall constitute one and the same
instrument.
Very truly yours,
A.M.S. Marketing, Inc.
By: /s/ ALFRED M. SCHIFFRIN
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Alfred M. Schiffrin, President
Agreed this 2nd day
of April, 2001
I Platform, Inc.
By: /s/ WILLIAM M. SMITH
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William M. Smith, President
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