RETURN ASSURED INCORPORATED
885 West Georgia, Suite 2240
Vancouver, BC V6C 3E8
May 10, 2001
Board of Directors of
Internet Business's International, Inc.
3900 Birch Street
Suite 103
Newport Beach, CA 32826
RE: Proposed Combination of Return Assured Incorporated and
Internet Business's International, Inc.
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Gentlemen:
This Letter of Intent memorializes a proposal with respect to the
proposed corporate combination of Internet Business's International, Inc., a
Nevada corporation, ("IBI") and Return Assured Incorporated., a Delaware
corporation ("RAI"). (IBI and RAI shall be collectively referred to herein as
the "Parties" and each separately as a "Party"). It has been the object of our
discussion to execute and implement as soon as practical a definitive merger
agreement and plan of reorganization between IBI and RAI which among other
things, would provide for the various matters set forth below:
1. Merger
(a) It is intended that IBI and RAI shall enter into a reverse
triangular merger (the "Merger") pursuant to a definitive merger agreement (the
"Merger Agreement") in which IBI shall become a wholly-owned subsidiary of RAI
(the "Merged Company") resulting in the current shareholders of RAI (the "RAI
Shareholders") owning approximately 10% of the outstanding shares of the common
stock ("Common Stock") of RAI, on a fully diluted basis, and the current
shareholders of IBI (the "IBI Shareholders") owning approximately 90% of the
outstanding shares of Common Stock of RAI on a fully diluted basis. The Merger
is intended to qualify as a tax-free reorganization under Section 368 of the
Internal Revenue Code. In addition, IBI shall assume 100% of RAI's current
liabilities, not to exceed US$900,000, and 100% of RAI's fees and commissions in
consummating the Merger.
(b) The Merged Company's board of directors shall consist of seven (7)
persons, which shall consist of one (1) independent director appointed by RAI,
at least two (2) independent directors appointed by IBI, and four (4) other
directors appointed by IBI. Each member of RAI's board of directors shall resign
at the closing of the Merger. RAI's board of directors shall have the right to
be indemnified by the Merged Company for acts or omissions as directors of RAI
and the Merged Company shall obtain directors and officers tail insurance
coverage.
2. Due Diligence and Conduct of Business
(a) From the date hereof, each Party, will make available to the other
Party for review their respective financial statements, books, records,
corporate documents and other information as the other Party may reasonably
request, and each Party shall have the opportunity to meet with attorneys,
accountants and key personnel of the other Party to discuss the financial and
business conditions of the respective Party and to make whatever future
independent investigation deemed necessary and prudent. The Parties agree to
cooperate with each other in complying with these requests and providing such
materials as the other Party may request.
(b) Each Party represents and agrees that all confidential information
which each Party or any of its officers, employees, agents, consultants, or
representatives, may possess or may receive in the future pertaining to the
financial or other condition of the other Party, shall not be utilized,
disclosed or made available to any other person or entity other than current
members of the Board of Directors, officers, employees, agents, consultants, or
representatives of either Party for their due diligence use under this Letter of
Intent at any time without the express written consent of the other Party.
Board of Directors of
Internet Business's International, Inc.
May 10, 2001
Page 2
(c) From the date hereof RAI agrees to operate its business in the
ordinary course and to refrain from any extraordinary transactions.
3. Condition Precedent to Obligations to Perform
The Merger Agreement and the performance of the obligations thereunder
will be subject to customary conditions including:
(a) The performance of a due diligence investigation by the Parties
determined to be satisfactory and favorable by each Party, its legal counsel,
financial advisors, accountants and agents on all matters pertaining to the
transaction contemplated hereby, including the delivery of audited financial
statements of IBI for the years ended June 30, 1998, 1999, and 2000;
(b) The execution of definitive agreements between the Parties
satisfactory in form and substance to such Parties and to their respective
counsel and financial advisors and containing such conditions, representations,
warranties, covenants and indemnities customary in a transaction of the type
contemplated by this Letter of Intent.;
(c) Compliance with all applicable legal and/or regulatory requirements;
(d) Completion of all required corporate and shareholder actions and
approvals, if any; including any approvals of all terms and conditions of the
proposed Merger by the board of directors or shareholders of each Party;
(e) RAI shall have a sufficient number of authorized but unissued and
unreserved shares of Common Stock to consummate the transaction contemplated
hereby;
(f) Opinions of counsel to RAI and of counsel to IBI that the
transactions contemplated hereby do not violate any state or federal securities
laws and any and all regulations of any applicable governmental agencies, and
has been duly authorized by RAI, or IBI as the case may be, and such other
customary matters;
(g) RAI and IBI shall each timely file all reports required to be filed
pursuant to Section 13 of the Securities Exchange Act of 1934, as amended
("Exchange Act");
(h) Absence of any event having a material adverse effect on the Parties
respective business or financial condition;
(i) Absence of pending or threatened litigation regarding the Parties
respective shares of stock, its assets or the Merger Agreement;
(j) The execution of employment agreements with certain senior
executives of IBI in form and substance acceptable to them.
4. Capitalizations
(a) RAI.
(1) Common Stock. As of March 31, 2001, RAI has approximately
9,113,265 issued and outstanding shares of common stock, which includes 857,934
shares held in escrow for FreeLotto and 100,000 shares held in escrow to
guarantee certain registration rights.
Board of Directors of
Internet Business's International, Inc.
May 10, 2001
Page 3
(2) Preferred Stock. As of March 31, 2001, RAI has one class of
preferred stock outstanding, Series A Preferred Stock, which upon conversion at
an assumed price of $0.72 per share, the closing price on February 9, 2001,
results in the issuance of 6,719,794 shares of common stock.
(3) Options and Warrants. As of March 31, 2001, RAI has
outstanding options and warrants as set forth below:
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Description Exercise Price Underlying Shares Expiration Date
- -----------------------------------------------------------------------------------------------
Warrants $0.70 600,000 2/8/03
- -----------------------------------------------------------------------------------------------
Options - RAI Plan Options $0.63 868,000 2/8/06
- -----------------------------------------------------------------------------------------------
Options - HTG Plan Options $0.845 173,231 various
- -----------------------------------------------------------------------------------------------
Warrants - settlement $1.00 600,000 6/7/03
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Warrants - fees for bridge $1.00 100,000 7/13/03
- -----------------------------------------------------------------------------------------------
Warrants - Fees for merger $1.00 340,000 7/13/05
- -----------------------------------------------------------------------------------------------
Warrants - private placement $1.43 28,000 6/20/03
- -----------------------------------------------------------------------------------------------
Options - HTG Plan Options $2.69 124,000 various
- -----------------------------------------------------------------------------------------------
Options - HTG Non Plan Options $0.845 700,000 12/2/03
- -----------------------------------------------------------------------------------------------
Options - HTG Non Plan Options (1) $2.69 400,000 9/23/02
- -----------------------------------------------------------------------------------------------
Warrants - Gem $3.00 737,371 7/13/05
- -----------------------------------------------------------------------------------------------
Options - HTG Non Plan Options $1.31 160,000 various
- -----------------------------------------------------------------------------------------------
Options - HTG Non Plan Options $2.69 13,000 various
- -----------------------------------------------------------------------------------------------
Warrants - Public $8.25 (2) 1,686,698 11/2/01
- -----------------------------------------------------------------------------------------------
Warrant - U/W Shares underlying Units $13.62 73,333 11/2/01
- -----------------------------------------------------------------------------------------------
Warrants - U/W Shares underlying $8.25 146,667 11/2/01
Warrants underlying Units
- -----------------------------------------------------------------------------------------------
Total 6,750,300
- -----------------------------------------------------------------------------------------------
(1) To be canceled.
(2) Two shares for one warrant, there are 1/2 the number of warrants
outstanding.
Board of Directors of
Internet Business's International, Inc.
May 10, 2001
Page 4
(4) Other Equity or Equity Equivalent Securities. Except as set forth
in (1)-(3) above, RAI has no outstanding equity or equity equivalent securities.
(b) IBI. As of March 31, 2001, IBI has 251,736,599 issued and
outstanding common shares. Except as set forth in the preceding sentence, IBI
has no other outstanding equity securities or securities convertible into equity
securities.
(c) At the closing as contemplated in the Merger Agreement there will be
no outstanding shares or rights convertible into shares of Common Stock, or any
other security, except as set forth in Paragraphs 1 and 4.
5. The Merger Agreement and Shareholder's Consent
(a) Promptly upon the signing of this Letter of Intent, the Parties
shall seek to negotiate and finalize the terms of the Merger Agreement
containing the terms outlined in this Letter of Intent. Counsel for RAI shall
prepare, and counsel for IBI shall review, the Merger Agreement.
(b) RAI shall be responsible for preparing, at IBI's expense, and IBI
shall review, at its expense, a proxy statement and file the proxy statement
with the Securities and Exchange Commission necessary to hold a Special Meeting
of Stockholders of RAI by proxy in order to vote on and authorize, and
consummate, the Merger. The RAI Shareholders will be presented with and asked to
vote upon the following proposals:
(i) to approve the change in control and issuance of the
shares of Common Stock to the IBI Shareholders;
(ii) to approve a reverse split of RAI's outstanding Common
Stock;
(iii) to approve the board of directors;
(iv) to ratify the sale of RAI's Hergo/RemoteIT/HCC operations;
(v) to change the name of RAI; and
(vi) to take whatever corporate action will be deemed necessary
by the Parties in order to carry out the transactions
anticipated in this Letter of Intent.
(c) At such appropriate time as permitted by law, IBI will immediately
take the appropriate and necessary corporate action to authorize the Merger and
to authorize IBI to take whatever corporate action deemed necessary in order to
carry out the transactions anticipated hereby.
(d) In connection with the foregoing stockholders' approvals, the
Parties shall obtain a fairness opinion for the entire transaction reasonably
acceptable to each Party and shall be included in the Proxy Statement.
(e) The Common Stock issued to the IBI Shareholders will be accompanied
by disclosure documents and the IBI Shareholders will sign an appropriate
investment letter.
6. Representations of RAI
(a) RAI is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware, and has the authority to
execute this Letter of Intent.
(b) RAI represents that: (i) it has filed all reports required to be
filed with the Securities and Exchange Commission pursuant to the Securities Act
of 1933 and the Securities Exchange Act of 1934 as amended, and has filed such
reports on a timely basis, (ii) such reports do not contain any material
misstatement or omission, and (iii) it is a fully-reporting company pursuant to
the federal securities laws.
Board of Directors of
Internet Business's International, Inc.
May 10, 2001
Page 5
(c) RAI represents that its common stock is listed for quotation on the
Nasdaq SmallCap Market.
7. Representations of IBI
(a) IBI is a corporation duly organized, validly existing and in good
standing under the laws of the State of Nevada and has the authority to execute
this Letter of Intent.
(b) IBI represents that: (i) it has filed all reports required to be
filed with the Securities and Exchange Commission pursuant to the Securities Act
of 1933 and the Securities Exchange Act of 1934 as amended, and has filed such
reports on a timely basis, (ii) such reports do not contain any material
misstatement or omission, and (iii) it is a fully-reporting company pursuant to
the federal securities laws.
(c) IBI represents that it exceeds the Initial Listing Requirement for
the NASDAQ SmallCap Market, as defined by NASDAQ.
8. Termination; Recission
This Letter of Intent may only be terminated by the mutual written
consent of the Parties hereto and may be extended upon the mutual written
consent of the Parties. If the terms and conditions of this Letter of Intent are
not fulfilled and the Merger Agreement is not finalized and executed prior to
June 4, 2001 or any extensions thereof, this Letter of Intent shall
automatically expire and be void and of no further effect.
9. Assignability
This Letter of Intent shall not be assignable or transferable by either
Party.
10. Governing Laws
The validity and interpretation of this Letter of Intent shall be
governed by and construed in accordance with the laws of the State of New York.
The parties to this Letter of Intent agree that any litigation arising out of
the terms of the proposed acquisition set forth herein shall be commenced in
courts located in the State of New York, New York County. All parties consent to
the exclusive jurisdiction and venue of the state courts located in New York
County, New York or in the United States District Court for the Southern
District of New York, with respect to any action arising under this Letter of
Intent.
11. Amendment
This Letter of Intent shall be amended only with the written consent of
all parties hereto.
12. Counterparts
This Letter of Intent may be executed in any number of counterparts by
original or facsimile signature, and each such counterpart shall be deemed to be
an original instrument, but all such counterparts together shall constitute but
one agreement.
Board of Directors of
Internet Business's International, Inc.
May 10, 2001
Page 6
13. Brokers' or Finders' Fees
Each Party represents that it has incurred no obligation or liability
for brokerage or finders' fee or similar payment in connection with this Letter
of Intent or the transactions contemplated thereby. Each Party shall indemnify
and hold the other Party harmless from any claim for brokerage or finders' fees
arising out the transactions contemplated hereby by any person claiming to have
been engaged by either Party.
14. Expenses
IBI and its shareholders shall bear all expenses in connection with the
preparation of the Merger Agreement and consummation of the Merger and all the
transactions contemplated by this Letter of Intent. IBI shall also pay KGL
US$100,000 at the closing of the Merger for legal services provided to RAI in
consummating the Merger. IBI and its shareholders shall bear all expenses in
connection with the preparation for the consummation of the transaction
contemplated by this Letter of Intent.
15. Binding Effect
Except as hereinafter set forth, the understandings contained herein (i)
do not constitute a binding agreement between the Parties hereto but merely
express their intent with respect thereto and (ii) shall only become binding
when a Merger Agreement is executed and the transactions contemplated hereby
have been approved by each of the Parties. Notwithstanding anything herein to
the contrary, the provisions set forth in Paragraphs 2(b), 10, and 15 are
intended to be and are hereby binding and enforceable obligations of the
Parties. Until the termination of this Letter of Intent, neither RAI nor IBI,
nor any of their respective affiliates or advisors on either Party's respective
behalf, shall, directly or indirectly, enter into any agreement, commitment or
understanding with respect to, or engage in any discussions or negotiations
with, or encourage or respond to any solicitations from, any other party with
respect to a merger, a sale or management of any material portion of the Party's
assets or a sale of any shares of capital stock, unless the breaching Party pays
the other Party a break-up fee of One Hundred Thousand Dollars (US$100,000).
16. Public Announcements
IBI and RAI shall issue a joint press release announcing the terms of
the Merger in form mutually acceptable to the Parties as promptly as practicable
if, in the good faith opinion of counsel for RAI such public disclosure is
required by the Securities and Exchange Commission or NASDAQ. The Parties
acknowledge that each Party is a publicly traded company with disclosure
obligations under federal and state securities laws and regulations and that the
existence, conduct and results of the relationship between IBI and RAI may
present material disclosure items for the Parties. In the event that IBI and RAI
shall disagree over the form or substance of any public press release
communication, RAI shall be justified in relying on the advice of its counsel
regarding the obligations of RAI under any federal or state securities laws or
regulations in deciding whether to release any public press release without the
prior consent of IBI. RAI will provide copies of any public announcement to IBI
prior to any public dissemination of such announcement.
[SIGNATURE PAGE FOLLOWS]
Board of Directors of
Internet Business's International, Inc.
May 10, 2001
Page 7
The foregoing Letter of Intent of seven (7) pages is accepted, approved
and agreed to by Return Assured Incorporated this 10th day of May, 2001.
RETURN ASSURED INCORPORATED
By: /s/ Matthew Sebal
---------------------------------
Name: Matthew Sebal
------------------------------
President and Chief
Title: Executive Officer
-----------------------------
The foregoing Letter of Intent of seven (7) pages is accepted, approved
and agreed to by Internet Business's International, Inc. this 10th day of May,
2001.
INTERNET BUSINESS'S INTERNATIONAL,
INC.
By: /s/ Albert Reda
---------------------------------
Name: Albert Reda
-----------------------------
Title: Chief Executive Officer
-----------------------------