EXHIBIT 2.11
AGREEMENT AND PLAN OF MERGER
BY AND BETWEEN
IXL HOLDINGS, INC.,
IXL-NEW YORK, INC.
SMALL WORLD SOFTWARE, INC.,
AND
THE SHAREHOLDERS OF SMALL WORLD
DATED AS OF JANUARY 23, 1998
AGREEMENT AND PLAN OF MERGER
----------------------------
THIS AGREEMENT AND PLAN OF MERGER is entered into this 23rd day of
January, 1998, by and between SMALL WORLD SOFTWARE, INC., a New York corporation
("Small World"), IXL HOLDINGS, INC., a Delaware corporation ("Parent"), iXL-NEW
YORK, INC., a Delaware corporation, or its successors or assigns ("Sub"), and
the shareholders of Small World as listed on the signature page hereto (the
"Small World Shareholders").
R E C I T A L S:
- - - - - - - -
A. Small World is engaged in the business of web page design and web
site hosting (the "Small World Business").
B. Small World and Sub each desire to merge their respective
companies and business operations, all on the terms and subject to the
conditions set forth herein (the "Merger").
C. The Small World Shareholders collectively own 100% of the issued
and outstanding capital stock of Small World (the "Small World Stock").
D. The respective Boards of Directors and stockholders of Parent,
Sub and Small World have approved the Merger, upon the terms and subject to the
conditions set forth herein.
E. The parties hereto intend for the Merger to qualify, for federal
income tax purposes, as a reorganization within the meaning of Section 368(a) of
the Internal Revenue Code of 1986, as amended (the "Code").
NOW, THEREFORE, in consideration of the mutual covenants, benefits,
conditions and agreements set forth herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, it
is hereby agreed as follows:
ARTICLE I
THE MERGER
1.1 THE MERGER. Upon the terms and subject to the conditions hereof,
at the Effective Time (as defined in Section 1.3 hereof), (a) Small World shall
be merged with and into Sub, (b) the separate existence of Small World shall
cease, and (c) Sub shall continue as the surviving corporation in the Merger
under the laws of the State of Delaware under the name iXL-New York, Inc. For
purposes of this Agreement, Sub shall be referred to, for the period commencing
on the Effective Time, as the "Surviving Corporation".
1.2 CLOSING. Subject to the satisfaction or waiver of the conditions
set forth in Article VII hereof, the closing of the Merger (the "Closing") will
take place at the offices of Xxxxx & Company, 000 Xxxx Xxxxxx, 00/xx/ Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, or at such other place as the
parties may agree.
1.3 EFFECTIVE TIME OF THE MERGER. At the Closing, the parties hereto
shall cause (a) a certificate of merger (the "Delaware Certificate of Merger")
to be filed with the office of the Secretary of State of the State of Delaware
in accordance with the provisions of the Delaware General Corporation Law, as
amended (the "DGCL"); and (b) a certificate of merger (the "New York Certificate
of Merger") to be filed with the office of the Secretary of State of the State
of New York in accordance with the provisions of the New York Business
Corporation Law (the "BCL"). When used in this Agreement, the term "Effective
Time" shall mean the time when the Delaware Certificate of Merger and the New
York Certificate of Merger (collectively herein referred to as the "Certificate
of Merger") have been accepted for filing by the Secretary of State of the State
of Delaware and New York, respectively, or such time as otherwise specified in
the Certificate of Merger.
1.4 EFFECT OF THE MERGER. The Merger shall, from and after the
Effective Time, have all the effects provided by the DGCL and BCL. If at any
time after the Effective Time, any further action is deemed necessary or
desirable to carry out the purposes of this Agreement, the parties hereto agree
that the Surviving Corporation and its proper officers and directors shall be
authorized to take, and shall take, any and all such action.
ARTICLE II
THE SURVIVING CORPORATION
2.1 CERTIFICATE OF INCORPORATION. The Amended and Restated
Certificate of Incorporation of Sub, a form of which is attached hereto as
Schedule 2.1, shall be the Certificate of Incorporation of the Surviving
------------
Corporation after the Effective Time, until thereafter changed or amended as
provided therein or by applicable law.
2.2 BYLAWS. The Bylaws of Sub as in effect immediately prior to the
Effective Time shall be the Bylaws of the Surviving Corporation, until
thereafter changed or amended as provided therein or by applicable law.
2.3 BOARD OF DIRECTORS; OFFICERS. The Board of Directors and officers
of Sub immediately prior to the Effective Time shall be the Board of Directors
and officers, respectively, of the Surviving Corporation, until the earlier of
their respective resignations or the time that their respective successors are
duly elected or appointed and qualified.
ARTICLE III
CONVERSION OF SHARES
3.1 MERGER CONSIDERATION. As of the Effective Time, by virtue of the
Merger and without any action on the part of any stockholder of Small World or
Sub:
(a) All shares of Small World Stock owned by Small World shall
be canceled
2
and retired and shall cease to exist, and no consideration shall be delivered
in exchange therefor.
(b) Each issued and outstanding share of Small World Stock shall
be converted into, and become exchangeable for, a number of shares of validly
issued, fully paid and nonassessable Class B Common Stock of Parent, $.01 par
value (the "Parent Stock") based on the following equation:
SWD
---
PS = 450,000 - $5
-------------------------
X
where:
PS = the number of shares of Parent Stock for which each
share of Small World Stock shall be exchanged pursuant
to the Merger
X = the number of shares of issued and outstanding Small
World Stock on the date hereof
SWD = the outstanding indebtedness of Small World (including,
without limitation, debt for borrowed money and accrued
interest thereon) as of the date one day prior to the
Closing (the "Small World Debt"), as set forth on
Schedule 4.29 hereto
-------------
$5 = the per share value of the Parent Stock, subject to
Section 3.1(d) below
(c) Each issued and outstanding share of common stock of Sub
shall be converted into and become one fully paid and nonassessable share of
common stock of the Surviving Corporation.
(d) The parties hereby agree and acknowledge that the per
share value of Parent Stock described in Section 3.1(b) above has been
determined in part by taking into account a 100 to 1 stock split of Parent
Stock that is expected to be effective on February 15, 1998 for all holders of
record of Parent Stock as of January 9, 1998. If the aforementioned stock split
does not occur for any reason, the parties agree that the per share value of
Parent Stock shall be $500, and that the provisions of this Agreement, including
without limitation the equation set forth in Section 3.1(b) above, shall be
adjusted accordingly.
3.2 NO FURTHER RIGHTS. From and after the Effective Time, holders of
certificates theretofore evidencing Small World Stock shall cease to have any
rights as stockholders of Small World, except as provided herein or by law.
3.3 CLOSING OF THE SMALL WORLD'S TRANSFER BOOKS. At the Effective
Time, the stock transfer books of Small World shall be closed and no transfer of
Small World Stock shall be made
3
thereafter. If after the Effective Time, certificates for Small World Stock are
presented to Parent or the Surviving Corporation, they shall be canceled and
exchanged for an amount of Parent Stock as set forth in Section 3.1 hereof.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SMALL WORLD
Small World and the Small World Shareholders, jointly and severally,
represent and warrant to Parent and Sub, which representations and warranties
shall survive the Closing in accordance with Section 9.1 of this Agreement, as
follows:
4.1 ORGANIZATION AND QUALIFICATION. Small World is a corporation duly
organized, validly existing and in good standing under the laws of the State of
New York. Small World has the requisite corporate power and authority to carry
on the Small World Business as it is now being conducted and is duly qualified
or licensed to do business, and is in good standing, in each jurisdiction where
the character of its properties owned or held under lease or the nature of its
activities makes such qualification necessary. Complete and correct copies of
the Certificate of Incorporation and Bylaws of Small World as in effect on the
date hereof are attached as Schedule 4.1 hereto. The minute book of Small World,
------------
a true and complete copy of which has been delivered to Parent, (a) accurately
reflects all action taken by the directors and shareholders of Small World at
meetings of Small World's Board of Directors or shareholders, as the case may be
at which minutes were taken; and (b) contains true and complete copies of, or
originals of, the respective minutes of all meetings or consent actions of the
directors or shareholders at which minutes were taken.
4.2 AUTHORITY. Small World has the necessary corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby by Small World have
been duly and validly authorized and approved by Small World's Board of
Directors and the Small World Shareholders, and no other corporate or
shareholder proceedings on the part of Small World, its Board of Directors or
the Small World Shareholders is necessary to authorize or approve this Agreement
or to consummate the transactions contemplated hereby. This Agreement has been
duly executed and delivered by Small World and each Small World Shareholder, and
assuming the due authorization, execution and delivery by Parent and Sub,
constitutes the valid and binding obligation of Small World and each Small World
Shareholder, enforceable against Small World and each Small World Shareholder in
accordance with its terms.
4.3 CAPITALIZATION.
(a) The authorized capital stock of Small World consists of
2,000,000 shares of common stock, $.01 par value per share, of which 1,530,000
shares are validly issued and outstanding, fully paid and nonassessable (without
taking into account the transactions contemplated by the Stock Purchase and
Release Agreement (as defined in Section 7.2(g) hereof)). All outstanding
capital stock of Small World was issued in accordance with applicable federal
and state securities laws. Except as set forth on Schedule 4.3(a) hereto, there
---------------
are no options, warrants,
4
calls, agreements, commitments or other rights presently outstanding that would
obligate Small World or the any of the Small World Shareholders to issue,
deliver or sell shares of its capital stock, or to grant, extend or enter into
any such option, warrant, call, agreement, commitment or other right. In
addition to the foregoing, as of the date hereof, Small World has no bonds,
debentures, notes or other indebtedness issued or outstanding that have voting
rights in Small World.
(b) All of the issued and outstanding shares of capital stock
of Small World are validly issued, fully paid and nonassessable and owned by the
Small World Shareholders, free and clear of any lien, charge, security interest,
pledge, option, right of first refusal, voting proxies or other voting
agreements, or encumbrance of any kind or nature, other than restrictions on
transfer imposed by federal and state securities laws (any of the foregoing, a
"Lien").
4.4 SUBSIDIARIES. Small World has no subsidiaries and does not
otherwise own or control, directly or indirectly, any equity interest in, or any
security convertible into an equity interest in, any corporation, partnership,
limited liability company, joint venture, association or other business entity
(any of the foregoing, an "Entity").
4.5 NO CONFLICTS, REQUIRED FILINGS AND CONSENTS. Except as set forth
on Schedule 4.5 hereto, none of the execution and delivery of this Agreement by
------------
Small World or the Small World Shareholders, the consummation by Small World and
the Small World Shareholders of the transactions contemplated hereby or
compliance by Small World with any of the provisions hereof will:
(a) conflict with or violate the Certificate of Incorporation or
Bylaws of Small World;
(b) result in a violation of any statute, ordinance, rule,
regulation, order, judgment or decree applicable to Small World or the Small
World Shareholders, or by which Small World or its properties or assets may be
bound or affected;
(c) result in a violation or breach of, or constitute a default
(or an event that, with notice or lapse of time or both, would become a default)
under, or give to others any rights of termination, amendment, acceleration or
cancellation of, any note, bond, mortgage, indenture, or any material contract,
agreement, arrangement, lease, license, permit, judgment, decree, franchise or
other instrument or obligation to which Small World is a party or by which Small
World or its properties may be bound or affected;
(d) result in the creation of any Lien on any of the property or
assets of Small World; or
(e) require any consent, waiver, license, approval,
authorization, order, permit, registration or filing with, or notification to
(any of the foregoing being a "Consent"), of (i) any government or subdivision
thereof, whether domestic, foreign or multinational, or any administrative,
governmental, or regulatory authority, agency, commission, court, tribunal or
body, whether domestic, foreign or multinational (a "Governmental Entity"),
except for the filing of the Certificate of Merger pursuant to the DGCL and BCL;
or (ii) any other individual or Entity
5
(collectively, a "Person").
4.6 FINANCIAL STATEMENTS. Small World has heretofore furnished Parent
with a true and complete copy of (a) the unaudited (compiled) financial
statements of Small World for the years ending December 31, 1995 and 1996; and
(b) the unaudited financial statements of Small World for the period ending
December 10, 1997, (collectively herein referred to as the "Small World
Financial Statements"). The Small World Financial Statements fairly and
consistently present, in all material respects, the financial position and
operating results of Small World as of the dates, and during the periods,
indicated therein.
4.7 ABSENCE OF CHANGES. Except as provided in Schedule 4.7 hereto and
------------
except as contemplated by this Agreement, since December 10, 1997, (a) Small
World has not entered into any transaction that was not in the ordinary course
of business; (b) except for sales of services and licenses of software in the
ordinary course of business, there has been no sale, assignment, transfer,
mortgage, pledge, encumbrance or lease of any material assets or properties of
Small World; (c) there has been (i) no declaration or payment of a dividend, or
any other declaration, payment or distribution of any type or nature to any
shareholder of Small World in respect of its stock, whether in cash or property,
and (ii) no purchase or redemption of any shares of the capital stock of Small
World except as provided in Section 7.2(g) hereof; (d) there has been no
declaration, payment, or commitment for the payment, by Small World, of a bonus
or other additional salary, compensation, or benefit to any employee of Small
World that was not in the ordinary course of business; (e) there has been no
release, compromise, waiver or cancellation of any debts to or claims by Small
World, or waiver of any rights of Small World; (f) there have been no capital
expenditures in excess of $10,000 for any single item, or $25,000 in the
aggregate; (g) there has been no change in accounting methods or practices or
revaluation of any assets of Small World (other than Small World Accounts
Receivable (as defined in Section 4.25 hereof) written down in the ordinary
course of business that are not in excess of $10,000 for any single Small World
Account Receivable and $25,000 in the aggregate); (h) there has been no
material damage, destruction or loss of physical property (whether or not
covered by insurance) adversely affecting the Small World Business or the
operations of Small World; (i) there has been no loan by Small World, or
guaranty by Small World of any loan, to any employee of Small World or to any
Person related to the Small World Business; (j) Small World has not ceased to
transact business with any customer that, as of the date of such cessation,
represented more than 5% of the annual gross revenues of Small World; (k) there
has been no termination or resignation of any key employee or officer of Small
World, and to the knowledge of Small World and the Small World Shareholders, no
such termination or resignation is threatened; (l) there has been no amendment
or termination of any material oral or written contract, agreement or license
related to the Small World Business, to which Small World is a party or by which
it is bound, except in the ordinary course of business, or except as expressly
contemplated by this Agreement; (m) Small World has not failed to satisfy any of
its debts, obligations or liabilities related to the Small World Business or the
assets of Small World as the same become due and owing (except for Small World
Accounts Payable (as defined in Section 4.26 hereof), payable in accordance with
past practices and in the ordinary course of business); (n) there has been no
agreement or commitment by Small World to do any of the foregoing; and (o) there
has been no other event or condition of any character pertaining to and
materially affecting the assets, Business or financial condition of Small World.
6
4.8 UNDISCLOSED LIABILITIES. Except as set forth on Schedule 4.8
------------
hereto, Small World has no debt, liability or obligation of any kind, whether
accrued, absolute or otherwise, including, without limitation, any liability or
obligation on account of taxes or any governmental charges or penalty, interest
or fines, except (a) liabilities incurred in the ordinary course of business
after December 10, 1997, that would not, whether individually or in the
aggregate, have a material adverse impact on the business or financial condition
of Small World; (b) liabilities reflected on the Small World Financial
Statements; and (c) liabilities incurred as a result of the transactions
contemplated by this Agreement
4.9 TITLE TO PROPERTIES. Except as set forth on Schedule 4.9 hereto,
------------
Small World has good and marketable title to all tangible property and assets
used in the Small World Business, and good title to all of its leasehold
interests, in each case, free and clear of any and all Liens other than liens
for taxes not yet due and payable.
4.10 EQUIPMENT. Small World has heretofore furnished Parent with a
true and correct list of all items of tangible personal property (including,
without limitation, computer hardware) necessary for or used in the operation of
the Small World Business in the manner in which it has been and is now operated
by Small World ("the Small World Equipment"), except for personal property
having a net book value of less than $1,000. Except as set forth on Schedule
--------
4.10, each material item of Small World Equipment is in good condition and
----
repair, ordinary wear and tear excepted.
4.11 INTELLECTUAL PROPERTY. Except as set forth on Schedule 4.11,
-------------
hereto,
(a) Small World has heretofore furnished Parent with a true and
complete list of all material proprietary technology, trade secrets, know-how,
patents, patent rights, trademarks, trademark rights, trade names, trade name
rights, service marks, service xxxx rights, and copyrights used or required to
be used by Small World in the conduct of the Small World Business (the "Small
World Intellectual Property Rights"). Small World owns, or is validly licensed
or otherwise has the right to use or exploit, as currently used or exploited,
all of the Small World Intellectual Property Rights, free of any obligation to
make any payment (whether of a royalty, license fee, compensation or otherwise).
No claims are pending or, to the knowledge of Small World, threatened, that
Small World is infringing or otherwise adversely affecting the rights of any
Person with regard to any Small World Intellectual Property Right. Small World
has used commercially reasonable efforts to protect the Small World Intellectual
Property Rights, and, to the knowledge of Small World, no Person is infringing
the rights of Small World with respect to any Small World Intellectual Property
Right. To the knowledge of Small World, neither Small World nor any employee,
agent or independent contractor of Small World has used, appropriated or
disclosed, directly or indirectly, any trade secrets or other proprietary or
confidential information of any other Person, or otherwise violated any
confidential relationship with any other Person. To the knowledge of Small
World, use of the name "Small World Software, Inc." does not infringe upon the
rights of any Person.
(b) Small World has heretofore furnished Parent with a true and
complete list of all material computer software used or required to be used by
Small World in the conduct of the Small World Business (the "Small World
Software"). Small World currently licenses, or otherwise has the legal right to
use, all of the Small World Software (including any upgrades, alterations or
7
enhancements with respect thereto), and all of the Small World Software is being
used in compliance with any applicable licenses or other agreements.
4.12 REAL PROPERTY. Small World owns no real property.
4.13 LEASES. Schedule 4.13 hereto sets forth a list of all leases
-------------
pursuant to which Small World leases, as lessor or lessee, real or personal
property used in operating the Small World Business or otherwise (the "Small
World Leases"). Copies of the Small World Leases, which have previously been
provided to Parent, are true and complete copies thereof. All of the Small World
Leases are valid, binding and enforceable in accordance with their respective
terms, and there is not under any such Small World Lease any existing default by
Small World, or, to the knowledge of Small World and the Small World
Shareholders, by any other party thereto, or any condition or event of that,
with notice or lapse of time or both, would constitute a default. Small World
has not received notice that the lessor of any of the Small World Leases intends
to cancel, suspend or terminate the Small World Leases or to exercise or not
exercise any options under any of the Small World Leases.
4.14 CONTRACTS. Schedule 4.14 hereto sets forth a true and complete
-------------
list of all material contracts, agreements and commitments (whether written or
oral) to which Small World is, directly or indirectly, a party (in its own name
or as a successor in interest); or by which it is otherwise bound, including,
without limitation, any service agreements, customer agreements, supplier
agreements, agreements to lend or borrow money, shareholder agreements,
employment agreements, agreements relating to Small World Intellectual Property
and the like (collectively, the "Small World Contracts").
True and complete copies of each Small World Contract (or a true and
complete narrative description of any oral Small World Contract) have previously
been provided to Parent. Neither Small World nor, to the knowledge of Small
World and the Small World Shareholders, any other party to any of the Small
World Contracts, (x) is in default under (nor does there exist any condition
that, with notice or lapse of time or both, would cause such a default under)
any of the Small World Contracts, or (y) has waived any right it may have under
any of the Small World Contracts, the waiver of which would have a material
adverse effect on the business, assets or financial condition of Small World.
All of the Small World Contracts constitute the valid and binding obligation of
Small World, enforceable in accordance with their respective terms, and, to the
knowledge of Small World and the Small World Shareholders, the other parties
thereto.
4.15 DIRECTORS AND OFFICERS. Schedule 4.15 hereto sets forth a list,
-------------
as of the date of this Agreement, of the name of each director and officer of
Small World and the offices held by each.
4.16 PAYROLL INFORMATION. Small World has previously provided Parent
with a true and complete copy of the most recent payroll report of Small World,
showing all current employees of Small World and their current levels of
compensation, other than bonuses and other extraordinary compensation. Small
World has paid all compensation required to be paid to employees of Small World
on or prior to the date hereof, except for payments owed in respect of the
current pay period (for which the applicable pay day has not yet occurred).
8
4.17 LITIGATION. Except as set forth on Schedule 4.17 hereto, there is
-------------
no suit, action, claim, investigation or proceeding pending or, to the knowledge
of Small World and the Small World Shareholders, threatened against or affecting
Small World, the Small World Business, or the Small World Shareholders, nor is
there any judgment, decree, injunction or order of any applicable Governmental
Entity or arbitrator outstanding against Small World.
4.18 EMPLOYEE BENEFIT PLANS/LABOR RELATIONS.
(a) Except as disclosed in Schedule 4.18 hereto, there are no
-------------
employee benefit plans, agreements or arrangements maintained by Small World,
including, without limitation, (1) "employee benefit plans," within the meaning
of Section 3(3) of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"); (2) affirmative action plans; (3) current or deferred
compensation, pension, profit sharing, vacation or severance plans or programs;
or (4) medical, hospital, accident, disability or death benefit plans
(collectively, "Small World Benefit Plans"). All Small World Benefit Plans are
administered in accordance with, and are in material compliance with, all
applicable laws and regulations. No default exists with respect to the
obligations of Small World under any Small World Benefit Plans.
(b) Small World is not a party to any collective bargaining
agreement, no collective bargaining agent has been certified as a representative
of any of the employees of Small World, no representation campaign or election
is now in progress with respect to any employee of Small World and there are no
labor disputes, grievances, controversies, strikes or requests for union
representation pending, or, to the knowledge of Small World and the Small World
Shareholders, threatened, relating to or affecting the Small World Business. To
the knowledge of Small World and the Small World Shareholders, no event has
occurred that could give rise to any such dispute, controversy, strike or
request for representation.
4.19 ERISA.
(a) All Small World Benefit Plans that are subject to ERISA
have been administered in accordance with, and are in material compliance with,
the applicable provisions of ERISA. Each of Small World Benefit Plans that is
intended to meet the requirements of Section 401(a) of the Code has been
determined by the Internal Revenue Service to meet such requirements within the
meaning of such provision. No Small World Benefit Plan is subject to Title IV of
ERISA or Section 412 of the Code. Small World has not engaged in any non-exempt
"prohibited transactions," as such term is defined in Section 4975 of the Code
or Section 406 of ERISA, involving Small World Benefit Plans that would subject
Small World to the penalty or tax imposed under Section 502(i) of ERISA or
Section 4975 of the Code. Small World has not engaged in any transaction
described in Section 4069 of ERISA within the last five years. Except as
disclosed in Schedule 4.19 hereto or pursuant to the terms of Small World
-------------
Benefit Plans, neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby will (1) result in any
payment (including, without limitation, severance, unemployment compensation or
golden parachute) becoming due to any director or other employee of Small World,
(2) increase any benefits otherwise payable under any Small World Benefit Plan
or (3) result in the acceleration of the time of payment or vesting of any such
benefits to any extent.
9
(b) No notice of a "reportable event," within the meaning of
Section 4043 of ERISA for which the 30-day reporting requirement has not been
waived, has been required to be filed for any Small World Benefit Plan that is
an "employee pension benefit plan" within the meaning of Section 3(2) of ERISA
and that is intended to meet the requirements of Section 401(a) of the Code, or
by any entity that is considered one employer with Small World under Section
4001 of ERISA or Section 414 of the Code, within the 12-month period ending on
the date hereof. Small World has not incurred any liability to the Pension
Benefit Guaranty Corporation in respect of any Small World Benefit Plan that
remains unpaid.
4.20 TAXES.
(a) Small World has duly and timely filed all federal, state
and local income, franchise, excise, real and personal property and other tax
returns and reports, including extensions, required to have been filed by Small
World on or prior to the date hereof. Small World has duly and timely paid all
taxes and other governmental charges, and all interest and penalties with
respect thereto, required to be paid by Small World (whether by way of
withholding or otherwise) to any federal, state, local or other taxing authority
(except to the extent the same are being contested in good faith, and adequate
reserves therefore have been provided in the Small World Financial Statements).
As of the date hereof, all deficiencies proposed as a result of any audits have
been paid or settled.
(b) Small World is not a party to, or bound by, or otherwise in
any way obligated under, any tax sharing or similar agreement.
(c) Small World has not consented to have the provisions of
Section 341(f)(2) of the Code (or comparable state law provisions) apply to it,
and Small World has not agreed or been requested to make any adjustment under
Section 481(c) of the Code by reason of a change in accounting method or
otherwise.
(d) Small World is an "S corporation" within the meaning of
Section 1361(a) of the Code.
4.21 COMPLIANCE WITH APPLICABLE LAWS. Small World holds all material
permits, licenses, variances, exemptions, orders and approvals of all
Governmental Entities necessary to own, lease or operate all of the assets and
properties of Small World, as appropriate, and to carry on the Small World
Business as now conducted (the "Small World Permits"). To the knowledge of Small
World, Small World is in material compliance with all applicable laws,
ordinances and regulations and the terms of the Small World Permits. Except as
set forth on Schedule 4.21, all of the Small World Permits are fully assignable
-------------
by Small World in connection with the Merger. Schedule 4.21 hereto sets forth a
-------------
true and complete list of all Small World Permits, true and complete copies of
which have previously been provided to Parent.
4.22 BOARD OF DIRECTOR/SHAREHOLDER CONSENT. Both the Board of
Directors of Small World and the Small World Shareholders have, by unanimous
written consent, adopted and approved this Agreement and the transactions
contemplated hereby (including, without limitation, the Merger).
10
4.23 BROKERS. Except as set forth on Schedule 4.23 hereto, no broker
-------------
or finder is entitled to any broker's or finder's fee or other commission in
connection with the transactions contemplated by this Agreement as a result of
arrangements made by or on behalf of Small World.
4.24 ENVIRONMENTAL MATTERS.
(a) To the knowledge of Small World and the Small World
Shareholders, no real property currently or formerly owned or operated by Small
World is contaminated with any Hazardous Substances (as hereinafter defined);
(b) Small World is not a party to any litigation or
administrative proceeding nor, to the knowledge of Small World and the Small
World Shareholders, is any litigation or administrative proceeding threatened
against it, that, in either case, asserts or alleges that Small World (i)
violated any Environmental Laws (as hereinafter defined); (ii) is required to
clean up, remove or take remedial or other response action due to the disposal,
deposit, discharge, leak or other release of any Hazardous Substances; or (iii)
is required to pay all or a portion of the cost of any past, present or future
cleanup, removal or remedial or other action that arises out of or is related to
the disposal, deposit, discharge, leak or other release of any Hazardous
Substances.
(c) To the knowledge of Small World and the Small World
Shareholders, there are not now nor have there previously been tanks or other
facilities on, under, or at any real property owned, leased, used or occupied by
Small World containing materials that, if known to be present in soils or ground
water, would require cleanup, removal or other remedial action under
Environmental Laws.
(d) To the knowledge of Small World and the Small World
Shareholders, Small World is not subject to any judgment, order or citation
related to or arising out of any Environmental Laws and has not been named or
listed as a potentially responsible party by any Governmental Entity in a matter
related to or arising out of any Environmental Laws.
(e) For purposes of this Agreement, (i) the term "Environmental
Law" means any federal, state or local law (including statutes, regulations,
ordinances, codes, rules, judicial opinions and other governmental restrictions
and requirements), relating to the discharge of air pollutants, water
pollutants, noise, odors or process waste water, or otherwise relating to the
environment or hazardous or toxic substances; and (ii) the term "Hazardous
Substance" means any toxic or hazardous substance that is regulated by or under
authority of any Environmental Law, including, without limitation, any petroleum
products, asbestos or polychlorinated biphenyls.
4.25 ACCOUNTS RECEIVABLE. All accounts, notes, contracts and other
receivables of Small World (collectively, "Small World Accounts Receivable")
were acquired by Small World in the ordinary course of business arising from
bona fide transactions completed in accordance with the terms and provisions
related thereto. To the knowledge of Small World and the Small World
Shareholders, there are no set-offs, counterclaims or disputes asserted with
respect to any Small World Accounts Receivable that would result in claims in
excess of the reserve for bad debts set forth on the Small World Financial
Statements and, to the knowledge of Small World and the Small
11
World Shareholders, subject to such reserve, all Small World Accounts Receivable
are collectible in full. Small World has previously provided Parent true and
complete aging reports prepared as of December 10, 1997, and December 31, 1996,
both of which show the time elapsed since invoice date for all Small World
Accounts Receivable as of the relevant dates.
4.26 ACCOUNTS PAYABLE. Except as set forth on Schedule 4.26 hereto,
-------------
all material accounts, notes, contracts and other amounts payable of Small World
(collectively, "Small World Accounts Payable") are currently within their
respective terms, and are neither in default nor otherwise past due by more than
90 days. Small World has previously provided Parent with a true and complete
aging report prepared as of December 10, 1997, and December 31, 1996, both of
which show the time elapsed since invoice date for all Small World Accounts
Payable as of the relevant dates.
4.27 INSURANCE. Small World currently maintains, in full force and
effect, all insurance policies that are either (a) required to be maintained for
the conduct of the Small World Business or the ownership of Small World's
property (both real and personal); or (b) otherwise maintained by companies
engaged in a business comparable to the Small World Business (collectively, the
"Small World Insurance Policies"). The Small World Insurance Policies are listed
on Schedule 4.27 hereto, and true and complete copies of all Small World
-------------
Insurance Policies have previously been provided to Parent. Small World (i) is
not in default regarding the provisions of any Small World Insurance Policy;
(ii) has paid all premiums due thereunder; and (iii) has not failed to present
any notice or present any material claim thereunder in a due and timely fashion.
4.28 BANKRUPTCY. Neither Small World nor any of the Small World
Shareholders has filed a petition or request for reorganization or protection or
relief under the bankruptcy laws of the United States or any state or territory
thereof, made any general assignment for the benefit of creditors, or consented
to the appointment of a receiver or trustee, including a custodian under the
United States bankruptcy laws, whether such receiver or trustee is appointed in
a voluntary or involuntary proceeding.
4.29 SMALL WORLD DEBT. As of the date hereof, the Small World Debt
(including, without limitation, that certain Promissory Note to Xxxx Xxxx, dated
as of January 23, 1998, in the principal amount of $722,145.72 (the "Xxxx
Note")), is not in excess of $936,979.34. The Small World Debt is more
particularly described on Schedule 4.29 hereto.
-------------
4.30 SMALL WORLD SPORTS. Small World has previously provided Parent
with true and complete copies of all documentation evidencing the spin off of
Small World Sports, Inc. from Small World (the "Small World Spin Off").
4.31 INVESTMENT PURPOSE. Each Small World Shareholder represents that
he is acquiring the Parent Stock solely for his own account for investment and
not with a view to, or for sale in connection with, any distribution thereof.
Each Small World Shareholder agrees that he will not, directly or indirectly,
offer, transfer, sell, pledge, hypothecate or otherwise dispose of any Parent
Stock (or solicit any offers to buy, purchase or other acquire or take a pledge
of any such shares) except in compliance with the Securities Act of 1933, as
amended (the "Securities Act") and the rules and regulations thereunder, other
applicable laws, rules and regulations, and the
12
Stockholders' Agreement (as defined in Section 7.2(c) hereof).
4.32 RESTRICTIONS ON TRANSFER. Each Small World Shareholder
acknowledges that (a) the Parent Stock received by him hereunder has not been
registered under the Securities Act; (b) neither Parent nor any Person acting on
its behalf has offered to sell the Parent Stock in any form of general
solicitation or general advertising within the meaning of Rule 502 of Regulation
D promulgated by the Securities and Exchange Commission under the Securities
Act; (c) the Parent Stock may be required to be held indefinitely, and each
Small World Shareholder must continue to bear the economic risk of the
investment in such shares unless such shares are subsequently registered under
the Securities Act or an exemption from such registration is available; (d)
there may not be any public market for the Parent Stock in the foreseeable
future; (e) Rule 144 promulgated under the Securities Act is not presently
available with respect to sales of any securities of Parent, and such Rule is
not anticipated to be available in the foreseeable future; (f) when and if
Parent Stock may be disposed of without registration in reliance upon Rule 144,
such disposition can be made only in limited amounts and in accordance with the
terms and conditions of such Rule; (g) if the exemption afforded by Rule 144 is
not available, public sale without registration will require the availability of
an exemption under the Securities Act; (h) the Parent Stock is subject to the
terms and conditions of the Stockholders' Agreement; (i) restrictive legends
shall be placed on the certificates representing Parent Stock; and (j) a
notation shall be made in the appropriate records of Parent indicating that
Parent Stock is subject to restrictions on transfer and, if Parent should in the
future engage the services of a stock transfer agent, appropriate stop-transfer
instructions will be issued to such transfer agent with respect to Parent Stock.
4.33 ABILITY TO BEAR RISK; ACCESS TO INFORMATION; SOPHISTICATION. Each
Small World Shareholder represents and warrants that (a) his financial situation
is such that he can afford to bear the economic risk of holding Parent Stock
acquired by him hereunder for an indefinite period; (b) he can afford to suffer
the complete loss of such Parent Stock; (c) he has been granted the opportunity
to ask questions of, and receive answers from, representatives of Sub and Parent
concerning the terms and conditions of the Parent Stock and to obtain any
additional information that he deems necessary; (d) his knowledge and experience
in financial business matters is such that he is capable of evaluating the
merits and risk of ownership of the Parent Stock; and (e) he has carefully
reviewed the terms of the Stockholders' Agreement and has evaluated the
restrictions and obligations contained therein.
4.34 DISCLOSURE. No statement of fact by Small World contained in this
Agreement and no written statement of fact furnished by Small World to Parent or
Sub pursuant to or in connection with this Agreement contains or will contain
any untrue statement of a material fact or omits to state a material fact
necessary in order to make the statements herein or therein contained not
materially misleading.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PARENT AND SUB
Each of Parent and Sub jointly and severally represents and warrants to
Small World and the Small World Shareholders, which representations and
warranties shall survive the Closing in
13
accordance with Section 9.1 of this Agreement, as follows:
5.1 ORGANIZATION AND QUALIFICATION. Each of Parent and its
Subsidiaries (as defined in Section 9.12 hereof) is a corporation duly
organized, validly existing and in good standing under the laws of the state of
its incorporation. Each of Parent and its Subsidiaries has the requisite
corporate power and authority to carry on its business as it is now being
conducted and is duly qualified or licensed to do business, and is in good
standing, in each jurisdiction where the character of its properties owned or
held under lease or the nature of its activities makes such qualification
necessary. Complete and correct copies of the Certificates of Incorporation and
Bylaws of Parent and Sub as in effect on the date hereof are attached as
Schedule 5.1 hereto.
------------
5.2 AUTHORITY. Each of Parent and Sub has the necessary corporate
power and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby by each of Parent
and Sub have been duly and validly authorized and approved by their respective
Board of Directors and shareholders, and no other corporate or shareholder
proceedings on the part of either Parent or Sub, or their respective boards of
directors or shareholders, are necessary to authorize or approve this Agreement
or to consummate the transactions contemplated hereby. This Agreement has been
duly executed and delivered by each of Parent and Sub, and assuming the due
authorization, execution and delivery by Small World and the Small World
Shareholders, constitutes the valid and binding obligation of each of Parent and
Sub, enforceable against each of Parent and Sub in accordance with its terms.
5.3 NO CONFLICTS, REQUIRED FILINGS AND CONSENTS. Except as set forth
on Schedule 5.3 hereto, none of the execution and delivery of this Agreement by
------------
Parent or Sub, the consummation by Parent and Sub of the transactions
contemplated hereby or compliance by Parent and Sub with any of the provisions
hereof will:
(a) conflict with or violate the Certificate of Incorporation or
Bylaws of Parent or Sub, or the organizational documents of any other
Subsidiaries;
(b) result in a violation of any statute, ordinance, rule,
regulation, order, judgment or decree applicable to Parent or its Subsidiaries,
or by which Parent, any of its Subsidiaries, or their respective properties or
assets may be bound or affected;
(c) result in a violation or breach of, or constitute a default
(or an event that, with notice or lapse of time or both, would become a default)
under, or give to others any rights of termination, amendment, acceleration or
cancellation of, any note, bond, mortgage, indenture, or any material contract,
agreement, arrangement, lease, license, permit, judgment, decree, franchise or
other instrument or obligation to which Parent or any of its Subsidiaries is a
party or by which Parent, any of its Subsidiaries or their respective properties
may be bound or affected;
(d) result in the creation of any Lien on any of the property or
assets of Parent or any of its Subsidiaries; or
(e) require any Consent of (i) any Governmental Entity (except
for (x)
14
compliance with any applicable requirements of any applicable securities laws,
and (y) the filing of the Certificate of Merger pursuant to the DGCL and BCL);
or (ii) any other Person.
5.4 LITIGATION. Except as set forth on Schedule 5.4 hereto, there is no
------------
suit, action, claim, investigation or proceeding pending or, to the knowledge of
Parent, threatened against or affecting Parent or its Subsidiaries, nor is there
any judgment, decree, injunction or order of any applicable Governmental Entity
or arbitrator outstanding against Parent or its Subsidiaries that, either
individually or in the aggregate, would have a material adverse effect on the
assets, business or financial condition of Parent and its Subsidiaries, taken as
a whole.
5.5 BROKERS. Except as disclosed on Schedule 5.5 hereto, no broker or
------------
finder is entitled to any broker's or finder's fee in connection with the
transactions contemplated by this Agreement based upon arrangements made by or
on behalf of Parent or Sub.
5.6 PARENT STOCK.
(a) As of the date hereof the authorized capital stock of Parent
consists of (i) (A) 50,000,000 shares of Class A Common Stock, $.01 par value,
of which no shares are validly issued and outstanding, and (B) 100,000,000
shares of Class B Common Stock, $.01 par value, of which 8,172,000 shares are
validly issued and outstanding (taking into account the stock split described in
Section 3.1(d) hereof, but without taking into account any shares of Parent
Stock to be issued pursuant to this Agreement), fully paid and nonassessable;
(ii) 500,000 shares of blank check preferred stock, (A) 250,000 of which have
been designated as Class A Convertible Preferred Stock, of which 169,260 shares
are validly issued and outstanding, fully paid and nonassessable, (B) 100,000 of
which have been designated as Class B Convertible Preferred Stock, of which
83,075 shares are validly issued and outstanding, fully paid and nonassessable,
and (C) 15,000 of which have been designated as Class C Convertible Preferred
Stock, of which 9,232 shares are validly issued and outstanding, fully paid and
nonassessable. All outstanding capital stock of Parent was issued in accordance
with applicable federal and state securities laws. Except as set forth on
Schedule 5.6 hereto, there are no options, warrants, calls, agreements,
------------
commitments or other rights presently outstanding that would obligate Parent to
issue, deliver or sell shares of its capital stock, or to grant, extend or enter
into any such option, warrant, call, agreement, commitment or other right. In
addition to the foregoing, as of the date hereof, Parent has no bonds,
debentures, notes or other indebtedness issued or outstanding that have voting
rights in Parent.
(b) The holders of record as of the Effective Time of the outstanding
shares of capital stock of Parent, together with the number of shares of capital
stock then outstanding, are set forth on a pro forma basis on Schedule 5.6
------------
hereto.
(c) When delivered to the Small World Shareholders in accordance with
the terms hereof, the Parent Stock will (i) be duly authorized, fully paid and
nonassessable, and (ii) be free and clear of all Liens other than restrictions
imposed by the Stockholders' Agreement and by federal and state securities laws.
5.7 SUBSIDIARIES. Except as set forth on Schedule 5.7 hereto, Parent has
------------
no subsidiaries and does not otherwise own or control, directly or indirectly,
any equity interest in, or any security
15
convertible into an equity interest in, any Entity. Schedule 5.7 hereto lists
------------
the name of each of the Subsidiaries of Parent, and indicates their respective
jurisdictions of incorporation.
5.8 FINANCIAL STATEMENTS. Parent has heretofore furnished Small World with
a true and complete copy of (a) the audited financial statements of iXL
Interactive Excellence, Inc. (n/k/a iXL, Inc.) for the years ended December 31,
1993, 1994 and 1995, and for the four-month period ending April 30, 1996; (b)
audited combined financial statements for Creative Video, Inc. (n/k/a iXL,
Inc.), Creative Video Library, Inc. and Entrepreneur Television, Inc. for the
years ending December 31, 1993, 1994 and 1995, and for the four-month period
ending April 30, 1996; (c) the audited consolidated financial statements for
Parent and its Subsidiaries for the eight months ended December 31, 1996; and
(iv) the unaudited consolidated financial statements for Parent and its
Subsidiaries, dated November 30, 1997. Such financial statements present fairly
in all material respects the consolidated financial position, results of
operations, shareholders' equity and cash flows of Parent at the respective
dates or for the respective periods to which they apply. Except as disclosed
therein, such statements and related notes have been prepared each in accordance
with GAAP consistently applied throughout the periods involved (except, in the
case of the unaudited financial statements, for the exclusion of footnotes and
normal year end adjustments).
5.9 UNDISCLOSED LIABILITIES. Except as set forth on Schedule 5.9 hereto,
------------
neither Parent nor any of its Subsidiaries has any debt, liability or obligation
of any kind, whether accrued, absolute or otherwise, including, without
limitation, any liability or obligation on account of taxes or any governmental
charges or penalty, interest or fines, except (a) liabilities incurred in the
ordinary course of business after November 30, 1997 that would not, whether
individually or in the aggregate, have a material adverse impact on the business
or financial condition of the Parent and its Subsidiaries, taken as a whole; (b)
liabilities reflected on the Parent Financial Statements; and (c) liabilities
incurred as a result of the transactions contemplated by this Agreement.
5.10 COMPLIANCE WITH APPLICABLE LAWS. Parent or its Subsidiaries holds all
material permits, licenses, variances, exemptions, orders and approvals of all
Governmental Entities necessary to own, lease or operate all of the assets and
properties of Parent and its Subsidiaries, as appropriate, and to carry on
Parent's business as now conducted (the "Parent Permits"). To the knowledge of
Parent, Parent and its Subsidiaries are in material compliance with all
applicable laws, ordinances and regulations and the terms of the Parent Permits.
5.11 BOARD OF DIRECTOR CONSENT. Both the Board of Directors of Parent and
Sub have, by unanimous written consent, adopted and approved this Agreement and
the transactions contemplated hereby (including, without limitation, the
Merger).
5.12 BANKRUPTCY. Neither Parent nor any of its Subsidiaries has filed a
petition or request for reorganization or protection or relief under the
bankruptcy laws of the United States or any state or territory thereof, made any
general assignment for the benefit of creditors, or consented to the appointment
of a receiver or trustee, including a custodian under the United States
bankruptcy laws, whether such receiver or trustee is appointed in a voluntary or
involuntary proceeding.
5.13 DISCLOSURE. No statement of fact by Parent or Sub contained in this
Agreement and
16
no written statement of fact furnished or to be furnished by Parent or Sub to
Small World pursuant to or in connection with this Agreement contains or will
contain any untrue statement of a material fact or omits or will omit to state a
material fact necessary in order to make the statements herein or therein
contained not misleading.
ARTICLE VI
ADDITIONAL AGREEMENTS
6.1 PUBLIC ANNOUNCEMENTS. The parties agree that, except as may otherwise
be required to comply with applicable laws and regulations (including, without
limitation, applicable securities laws) or to obtain consents required
hereunder, public disclosure of the transactions contemplated by this Agreement
shall be made only upon or after the consummation of the Merger. Any such
disclosure shall be coordinated by Parent, and none of Small World nor the Small
World Shareholders shall make any such disclosure without the prior written
consent of Parent.
6.2 TRANSFER AND GAINS TAXES AND CERTAIN OTHER TAXES AND EXPENSES. Parent
agrees that, to the extent it is legally able to do so, the Surviving
Corporation will pay all real property transfer, gains and other similar taxes
and all documentary stamps, filing fees, recording fees and sales and use taxes,
if any, and any penalties or interest with respect thereto, payable in
connection with consummation of the Merger.
6.3 FURTHER ASSURANCES. From time to time after the Effective Time, upon
the reasonable request of any party hereto, the other party or parties hereto
shall execute and deliver or cause to be executed and delivered such further
instruments, and take such further action, as the requesting party may
reasonably request in order to effectuate fully the purposes, terms and
conditions of this Agreement.
6.4 SMALL WORLD OPTIONS.
(a) Small World hereby covenants and agrees that, at the Effective
Time, there shall be no outstanding options, warrants and other rights to
acquire Small World Stock. Prior to the Effective Time, Small World shall have
obtained, and shall have delivered to Parent, releases reasonably acceptable to
Parent from any employee of Small World who had been told that he or she would
receive any such options, warrants or other rights.
(b) Parent hereby covenants and agrees that, at the Effective Time,
each of the individuals listed on Schedule 6.4(b) hereto shall receive options
---------------
to purchase that number shares of validly issued, fully paid and nonassessable
Parent Stock, at an exercise price per share, as is set forth on Schedule
--------
6.4(b), all of which shall have been issued pursuant to the IXL Holdings, Inc.
------
1996 Stock Option Plan, as amended (the "Parent Stock Option Plan").
(c) In addition to the foregoing, at the Effective Time, Parent shall
issue options to purchase 50,000 shares of validly issued, fully paid and
nonassessable Parent Stock, at an exercise price of $5.00 per share (in each
case, subject to the stock split described in Section 3.1(d) hereof), to those
Persons listed on Schedule 6.4(c) hereto (or to such other individuals as are
--------------
17
selected by Small World and approved by Parent), pursuant to the Parent Stock
Option Plan.
(d) Notwithstanding anything to the contrary contained in this
Section 6.4, Xxxx Xxxx shall not be treated as a Small World Shareholder under,
and shall have no liability under, this Section 6.4; provi
6.5 SMALL WORLD DEBT. Parent hereby agrees that, contemporaneously with
the execution and delivery of this Agreement, Parent shall acquire, and assume
all obligations under, the Small World Debt (including, without limitation, the
Xxxx Note). Parent shall pay all amounts due in respect of the Small World Debt
at the Closing; provided, however, that Small World shall have provided Parent
at least two days prior to the Closing with complete and accurate pay-off
letters for all amounts owed as part of the Small World Debt.
6.6 SUBLEASE TO SMALL WORLD SPORTS, INC. Parent hereby agrees and
acknowledges that Small World will sublease office space to Small World Sports,
Inc. on such terms as are reasonably acceptable to Parent, Small World and Small
World Sports, Inc.
6.7 SECTION 338 ELECTION; TAX-FREE MERGER.
(a) The parties agree and acknowledge that the Merger is intended to
qualify, for federal income tax purposes, as a reorganization within the meaning
of Section 368(a) of the Code. Accordingly, none of the parties hereto shall
attempt to file a Section 338 election without the prior written consent of the
other parties hereto.
(b) Parent hereby agrees that it will continue to maintain its
ownership of Sub so as not to violate the continuity of interest requirements
under Section 368 of the Code and the regulations thereunder. If Parent (i)
fails to continue its ownership in accordance with the foregoing sentence, or
(ii) takes any action, or fails to take any reasonable action, and, as a result
of any thereof, the Internal Revenue Service (the "IRS") determines that the
Merger constitutes a taxable event for the Small World Shareholders, then Parent
shall loan to the Small World Shareholders, on an interest-free basis for a
period to be agreed upon by the parties, an amount equal to the federal income
tax imposed on the Small World Shareholders in connection with the Merger as a
result of such determination; provided, however, that (1) each Small World
Shareholder shall promptly (and in any event with five days of his receipt
thereof) deliver to Parent a copy of any notice received from the IRS relating
to the taxability of the Merger; and (2) Parent shall have the right, at its
sole cost, expense and determination, to defend against and/or settle any claim
by the IRS to the effect that the Merger constitutes a taxable event.
ARTICLE VII
CONDITIONS PRECEDENT
7.1 CONDITIONS TO OBLIGATION OF SMALL WORLD AND THE SMALL WORLD
SHAREHOLDERS TO EFFECT THE MERGER. The obligation of Small World and the Small
World Shareholders to effect the Merger shall be subject to the fulfillment at
or prior to the Effective Time of the following conditions:
18
(a) (i) the appropriate officers of Parent shall have executed and
delivered to Small World at the Closing, a closing certificate and incumbency
certificate, substantially in the form of Exhibit "A-1" hereto, and (ii) the
------------
appropriate officers of Sub shall have executed and delivered to Small World at
the Closing, a closing certificate and incumbency certificate, substantially in
the form of Exhibit "A-2" hereto;
------------
(b) Parent shall have obtained all of the Consents listed on Schedule
--------
7.1(b) hereto;
------
(c) Small World shall have received a corporate certificate of good
standing for Parent and Sub, and a copy of the Certificate of Incorporation for
Parent and Sub, both as certified by the Secretary of State of Delaware;
(d) there shall have been delivered to each of the Small World
Shareholders at the Closing, duly executed by Parent, an Agreement to be Bound
to the Registration Rights Agreement of Parent, dated as of the hereof (the
"Agreement to be Bound to the Registration Rights Agreement"), substantially in
the form of Exhibit "B" hereto;
-----------
(e) Parent shall have executed and delivered at the Closing an Option
Agreement for each of the Persons listed on Schedule 6.4(b) and Schedule 6.4(c)
--------------- ---------------
hereto, substantially in the form of Exhibit "C" hereto;
----------
(f) Parent shall have complied with its obligations under Section 6.5
hereof;
(g) Parent shall have delivered to Small World that certain side
letter, dated of even date herewith, a form of which is attached hereto as
Exhibit "D" hereto;
-----------
(h) Small World shall have received, at the Closing, a duly executed
opinion of counsel to Parent, substantially in the form of Exhibit "E" hereto;
-----------
and
(i) Small World shall have received from Parent such other documents
as Small World's counsel shall have reasonably requested, in form and substance
reasonably satisfactory to Small World's counsel.
7.2 CONDITIONS TO OBLIGATIONS OF PARENT AND SUB TO EFFECT THE MERGER. The
obligations of Parent and Sub to effect the Merger shall be subject to the
fulfillment, at or prior to the Effective Time of the following conditions.
(a) the appropriate officers of Small World shall have executed and
delivered to Parent at the Closing, a closing certificate, substantially in the
form of Exhibit "F" hereto;
-----------
(b) Small World and the Small World Shareholders shall have obtained
or caused to be obtained all of the Consents listed on Schedule 7.2(b) hereto;
---------------
(c) there shall have been delivered to Parent at the Closing, duly
executed by
19
each of the Small World Shareholders, (i) an Agreement to be Bound to the Second
Amended and Restated Stockholders' Agreement of Parent, dated December 17, 1997
(the "Stockholders' Agreement"), substantially in the form of Exhibit "G"
-----------
hereto; and (ii) an Agreement to be Bound by the Registration Rights Agreement;
(d) Parent shall have received a corporate certificate of good
standing for Small World, and a copy of the Certificate of Incorporation of
Small World, both as certified by the Secretary of State of New York;
(e) as of the Closing the Small World Debt shall be no greater than
$936,976.34, and Parent shall have received pay-off letters with respect thereto
in accordance with Section 6.5 hereto;
(f) Small World shall have complied with its obligations under
Section 6.4(a) hereof;
(g) Small World shall have purchased all of Xxxx Xxxx'x right, title
and interest in and to a certain number of shares of the capital stock of Small
World owned by him, and any rights he may have had in respect thereof (in each
case, as determined in accordance with the terms of that certain Stock Purchase
Agreement between Small World and Xxxx Xxxx, dated of even date herewith), in
exchange for the Xxxx Note, a form of which is attached hereto as Exhibit "H";
-----------
(h) Small World shall have delivered to Parent a release, fully
executed by Xxxx Xxxx, substantially in the form of Exhibit "I" hereof;
-----------
(i) Parent shall have received, at the Closing, a duly executed
opinion of counsel to Small World and the Small World Shareholders,
substantially in the form of Exhibit "J" hereto; and
-----------
(j) Parent shall have received from Small World or the Small World
Shareholders, as the case may be, such other documents as Parent's counsel shall
have reasonably requested, in form and substance reasonably satisfactory to
Parent's counsel.
ARTICLE VIII
INDEMNIFICATION
8.1 INDEMNIFICATION BY PARENT.
(a) Parent shall indemnify and hold the Small World Shareholders and
Small World's directors, officers and employees (collectively, the "Small World
Indemnified Parties") harmless from and against, and agree promptly to defend
each of the Small World Indemnified Parties from and reimburse each of the Small
World Indemnified Parties for, any and all losses, damages, costs, expenses,
liabilities, obligations and claims of any kind (including, without limitation,
reasonable attorney fees and other legal costs and expenses) (collectively a
"Small World Loss") that any of the Small World Indemnified Parties may at any
time suffer or incur, or
20
become subject to, as a result of or in connection with:
(i) any breach or inaccuracy of any of the representations
and warranties made by Parent or Sub in or pursuant to this Agreement, or in any
instrument, certificate or affidavit delivered by Parent or Sub at the Closing
in accordance with the provisions hereof;
(ii) any failure by Parent or Sub to carry out, perform,
satisfy and discharge any of its respective covenants, agreements, undertakings,
liabilities or obligations under this Agreement or under any of the documents
and materials delivered by Parent pursuant to this Agreement; and
(iii) any suit, action or other proceeding arising out of,
or in any way related to, any of the matters referred to in this Section 8.1.
(b) Notwithstanding any other provision to the contrary Parent shall
not have any liability under Section 8.1(a) above (i) unless the aggregate of
all Small World Losses for which Parent would be liable but for this sentence
exceeds, on a cumulative basis, an amount equal to $50,000, and then only to the
extent of such excess, (ii) for amounts in excess of $2,250,000 in the
aggregate, and (iii) unless the Small World Shareholders have asserted a claim
with respect to the matters set forth in Section 8.1(a)(i), or 8.1(a)(iii) to
the extent applicable to Section 8.1(a)(i), within 18 months of the Effective
Time. Notwithstanding any implication to the contrary contained herein, the
parties acknowledge and agree that a decrease in the value of Parent Stock would
not, by itself, constitute a Small World Loss, unless and to the extent a
decrease in the value of Parent Stock has been demonstrated to be as a result of
any event described in Sections 8.1(a)(i), (ii) or (iii) above.
8.2 INDEMNIFICATION BY THE SMALL WORLD SHAREHOLDERS.
(a) The Small World Shareholders shall jointly and severally
indemnify and hold Parent, Sub, Surviving Corporation and their respective
shareholders, directors, officers and employees (collectively, the "Parent
Indemnified Parties") harmless from and against, and agree to promptly defend
each of the Parent Indemnified Parties from and reimburse each of the Parent
Indemnified Parties for, any and all losses, damages, costs, expenses,
liabilities, obligations and claim of any kind (including, without limitation,
reasonable attorney fees (collectively, a "Parent Loss") that any of the Parent
Indemnified Parties may at any time suffer or incur, or become subject to, as a
result of or in connection with:
(i) any breach or inaccuracy of any representations and
warranties made by Small World or the Small World Shareholders in or pursuant to
this Agreement, or in any instrument, certificate or affidavit delivered by the
same at the Closing in accordance with the provisions hereof;
(ii) any failure by Small World or the Small World
Shareholders to carry out, perform, satisfy and discharge any of their
respective covenants, agreements, undertakings, liabilities or obligations under
this Agreement or under any of the documents and materials delivered by Small
World pursuant to this Agreement;
21
(iii) the Small World Spin Off; and
(iv) any suit, action or other proceeding arising out of,
or in any way related to, any of the matters referred to in this Section 8.2.
(b) Notwithstanding the above, none of the Small World Shareholders
shall have any liability under Section 8.2(a) above (i) unless the aggregate of
all Parent Losses for which the Small World Shareholders would be liable but for
this sentence exceeds, on a cumulative basis, an amount equal to $50,000, and
then only to the extent of such excess, (ii) in the case of Parent Losses
described in Sections 8.2(a)(i) and 8.2(a)(ii), and in Section 8.2(a)(iv) to the
extent attributable to Section 8.2(a)(i) or (ii), for amounts in excess of
$2,250,000 in the aggregate (it being understood that the provisions of this
clause (ii) shall not limit the liability of Small World Shareholders under
Section 8.2(a)(iii) hereof), and (iii) unless Parent has asserted a claim with
respect to the matters set forth in Section 8.2(a)(i) or 8.2(a)(iv) (to the
extent applicable to Section 8.2(a)(i)) within 18 months of the Effective Time,
except with respect to the matters arising under Sections 4.18, 4.19, 4.20 or
4.24 hereof, or in connection with the Small World Spin Off, in which event
Parent must have asserted a claim within the applicable statute of limitations.
Notwithstanding any implication to the contrary contained herein, the parties
acknowledge and agree that a decrease in the value of Parent Stock would not, by
itself, constitute a Parent Loss, unless and to the extent a decrease in the
value of Parent Stock has been demonstrated to be as a result of any event
described in Sections 8.2(a)(i), (ii) or (iii) above.
(c) Notwithstanding anything to the contrary contained herein, if there
has been a public offering of Parent Stock registered under the Securities Act,
any claims under this Section 8.2 in respect of the shareholders of Parent shall
be made only through Parent, Small World, or the officers or directors of either
of the foregoing.
8.3 NOTIFICATION OF CLAIMS; ELECTION TO DEFEND.
(a) A party entitled to be indemnified pursuant to Section 8.1 or 8.2
hereof, as the case may be (the "Indemnified Party"), shall notify the party
liable for such indemnification (the "Indemnifying Party") in writing of any
claim or demand (a "Claim") that the Indemnified Party has determined has given
or could give rise to a right of indemnification under this Agreement. Subject
to the Indemnifying Party's right to defend in good faith third party claims as
hereinafter provided, the indemnifying Party shall satisfy its obligations under
this Article VIII within 60 days after the receipt of written notice thereof
from the Indemnified Party. Any amounts paid thereafter shall include interest
thereon for the period commencing at the end of such 60-day period and ending on
the actual date of payment, at a rate of 15% per annum, or, if lower, at the
highest rate of interest permitted by applicable law at the time of such
payment.
(b) If the Indemnified Party shall notify the Indemnifying Party of
any Claim pursuant to Section 8.3(a) hereof, and if such Claim relates to a
Claim asserted by a third party against the Indemnified Party that the
Indemnifying Party acknowledges is a Claim for which it must indemnify or hold
harmless the Indemnified Party under Section 8.1 or 8.2 hereof, as the case may
be, the Indemnifying Party shall have the right, at its sole cost and expense,
to employ counsel
22
of its own choosing to defend any such Claim asserted against the Indemnified
Party; provided, however, that if the Indemnified Party (i) reasonably believes
-------- -------
that its interests with respect to a Claim (or any material portion thereof) are
in conflict with the interests of the Indemnifying Party with respect to such
Claim (or portion thereof), and (ii) promptly notifies the Indemnifying Party,
in writing, of the nature of such conflict, then the Indemnified Party shall be
entitled to choose, at the sole cost and expense of the Indemnifying Party,
independent counsel to defend such Claim (or the conflicting portion thereof).
The lndemnified Party shall have the right to participate in the defense of any
such Claim at its own expense (except to the extent provided in the foregoing
sentence), but the Indemnifying Party shall retain control over such litigation
(except as provided in the foregoing sentence). The Indemnifying Party shall
notify the Indemnified Party in writing, as promptly as possible (but in any
case before the due date for the answer or response to a claim) after the date
of the notice of claim given by the Indemnified Party to the Indemnifying Party
under Section 8.3(a) hereof of its election to defend in good faith any such
third party Claim. So long as the Indemnifying Party is defending in good faith
any such Claim asserted by a third party against the Indemnified Party (or has
been relieved of the obligation to defend such Claim in accordance with this
Section 8.3(b) as a result of a conflict of interest between the Indemnified
Party and the Indemnifying Party), the Indemnified Party shall not settle or
compromise such Claim without the prior written consent of the Indemnifying
Party. The Indemnified Party shall cooperate with the Indemnifying Party in
connection with any such defense and shall make available to the Indemnifying
Party or its agents all records and other materials in the Indemnified Party's
possession reasonably required by it for its use in contesting any third party
Claim; provided, however, that the Indemnifying Party shall have agreed, in
-------- -------
writing, to keep such records and other materials confidential expect to the
extent required for defense of the relevant Claim. Whether or not the
Indemnifying Party elects to defend any such Claim, the Indemnified Party shall
have no obligations to do so. Within 30 days after a final determination
(including, without limitation, a settlement) has been reached with respect to
any Claim contested pursuant to this Section 8.3(b), the Indemnifying Party
shall satisfy its obligations with respect thereto. Any amounts paid thereafter
shall include interest thereon for the period commencing at the end of such 30-
day period and ending on the actual date of payment, at a rate of 15% per annum,
or, if lower, at the highest rate of interest permitted by applicable law at the
time of such payment.
ARTICLE IX
GENERAL PROVISIONS
9.1 SURVIVAL; RECOURSE. None of the agreements contained in this Agreement
shall survive the Merger, except that (i) the agreements contained in Article
III hereof, the covenants contained in Article VI hereof, the obligations to
indemnify contained in Article VIII hereof and the agreements of the Surviving
Corporation referred to in Sections 9.10 and 9.11 hereof, shall survive the
Merger (except to the extent a shorter period of time is explicitly specified
therein) and (ii) the representations and warranties made in Articles IV and V
of this Agreement shall survive the Merger, and shall survive any independent
investigation by the parties, and any dissolution, merger or consolidation of
Small World or Parent, and shall bind the legal representatives, assigns and
successors of Small World, the Small World Shareholders, Parent, for a period of
18 months after the Closing Date (other than the representations and warranties
contained in Sections 4.18, 4.19, 4.20 and 4.24 hereof, which shall survive for
the applicable statute of limitations).
23
9.2 NOTICES. All notices or other communications under this Agreement
shall be in writing and shall be given (and shall be deemed to have been duly
given upon receipt) by delivery in Person, by telecopy (with confirmation of
receipt), or by registered or certified mail, postage prepaid, return receipt
requested, addressed as follows:
If to Small World: Small World Software, Inc.
000 Xxxx 00xx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxx
Telecopy: 212/501-9816
Telephone: 212/000-0000
With copies to: Xxxxx Law Firm
30 Corporate Xxxxx, Xxxxx 000
Xxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxx, Esq.
Telecopy: 716/272-8280
Telephone: 716/000-0000
If to the Small World To the address listed under the signature
Shareholders: line of the applicable Small World Shareholder
In the case of a
notice to Xxxx Xxxx,
with copies to: Xxxxx Xxxx Eidman Xxxxxxxxxx & Xxxxx P.C.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxx, Esq.
Telecopy: 212/757-2010
Telephone: 212/000-0000
If to Parent: IXL Holdings, Inc.
Two Park Place
0000 Xxxxx Xxxxxx
0xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention Xxxxx X. Xxxxxx
Telecopy: 404/267-3801
Telephone: 404/000-0000
24
With copies to: Xxxxxx & Xxxxxx, A Professional Corporation
One Buckhead Plaza
0000 Xxxxxxxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
Telecopy: 404/233-5824
Telephone: 404/000-0000
and to: Xxxxx & Company
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx XX, Esq.
Telecopy: 212/223-2379
Telephone: 212/000-0000
If to Sub/Surviving
Corporation: iXL-New York, Inc.
0000 Xxxxx Xxxxxx
0xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
Telecopy: 404/267-3801
Telephone: 404/000-0000
With copies to: Xxxxxx & Xxxxxx, A Professional Corporation
One Buckhead Plaza
0000 Xxxxxxxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
Telecopy: 404/233-5824
Telephone: 404/000-0000
and to: Xxxxx & Company
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx XX, Esq.
Telecopy: 212/223-2379
Telephone: 212/000-0000
or to such other address as any party may have furnished to the other parties in
writing in accordance with this Section.
9.3 ENTIRE AGREEMENT. This Agreement and the documents, schedules and
instruments
25
referred to herein and to be delivered pursuant hereto constitute the entire
agreement between the parties pertaining to the subject matter hereof, and
supersede all other prior agreements and understandings, both written and oral,
among the parties, or any of them, with respect to the subject matter hereof.
There are no other representations or warranties, whether written or oral,
between the parties in connection the subject matter hereof, except as expressly
set forth herein.
9.4 ASSIGNMENTS; PARTIES IN INTEREST. Neither this Agreement nor any of
the rights, interests or obligations hereunder may be assigned by any of the
parties hereto (whether by operation of law or otherwise) without the prior
written consent of the other parties, except that the rights, interests, and
obligations of Sub hereunder may be assigned to any direct wholly owned Delaware
subsidiary of Parent without such prior consent. Subject to the preceding
sentence, this Agreement shall be binding upon and inure solely to the benefit
of each party hereto, and nothing in this Agreement, express or implied, is
intended to or shall confer upon any Person not a party hereto any right,
benefit or remedy of any nature whatsoever under or by reason of this Agreement,
except as otherwise provided herein.
9.5 FEES AND EXPENSES. All reasonable fees and expenses incurred in
connection with this Agreement and the transactions contemplated by this
Agreement shall be paid by the party incurring such fees or expenses; provided,
--------
however, that the expenses of the Small World Shareholders shall be paid by
-------
Small World.
9.6 GOVERNING LAW. This Agreement, except to the extent that the BCL or
the DGCL is mandatorily applicable to the Merger or the rights of the
shareholders of Small World or the other parties hereto with respect to the
Merger, shall be governed in all respects by the laws of the State of Georgia
(without giving effect to the provisions thereof relating to conflicts of law).
9.7 HEADINGS. The descriptive headings herein are inserted for convenience
of reference only and are not intended to be part of or to affect the meaning or
interpretation of this Agreement.
9.8 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which taken
together shall constitute a single agreement.
9.9 SEVERABILITY. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economics or legal substance of
the transactions contemplated hereby are not affected in any manner materially
adverse to any party. Upon determination that any term or other provision hereof
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible to the fullest extent permitted by
applicable law in an acceptable manner to the end that the transactions
contemplated hereby are fulfilled to the extent possible.
9.10 POST-CLOSING ACCESS. For a period of three years after the Closing
Date, the Small World Shareholders and their agents and representatives shall
have reasonable access to the books
26
and records of Small World.
9.11 POST-CLOSING NOTICE. To the extent the Surviving Corporation receives
written notice of any event or circumstance that materially affects any of the
Small World Shareholders, the Surviving Corporation shall promptly notify the
affected Small World Shareholder of such matter, information, or event and shall
provide them with copies of all relevant documentation or correspondence in
connection thereto.
9.12 CERTAIN DEFINITIONS. As used in this Agreement:
(a) the term "Subsidiary" or "Subsidiaries" means any Entity of which
Parent (either alone or through or together with any other Subsidiary) owns,
directly or indirectly, stock or other equity interests the holders of that are
entitled to more than 50% of the vote for the election of the board of directors
or other governing body of such Entity (including, without limitation, Sub);
provided, however, that with respect to the Parent, the terms "Subsidiary" and
-------- -------
"Subsidiaries" shall not include (i) University Netcasting, Inc., or (ii) Small
World; and
(b) any representation or warranty stated to be made "to the
knowledge" of a party shall refer to such party's knowledge following reasonable
inquiry as to the matter in question.
- SIGNATURES ON THE FOLLOWING PAGE -
27
IN WITNESS WHEREOF, Parent, Sub and Small World have caused this Agreement
to be signed by their respective officers thereunder duly authorized, and each
Small World Shareholder has signed this Agreement, all as of the date first
written above.
"SMALL WORLD"
SMALL WORLD SOFTWARE, INC., a New York corporation
By: /s/ Xxxx Xxxxxxxxxx
---------------------------------------------
Title: President
-------------------------------------------
"PARENT"
IXL HOLDINGS, INC., a Delaware corporation
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------------
Title: Executive Vice President
-------------------------------------------
"SUB"
iXL-NEW YORK, INC., a Delaware corporation
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------------
Title: Executive Vice President
-------------------------------------------
- SIGNATURES CONTINUE ON THE FOLLOWING PAGE -
28
"SMALL WORLD SHAREHOLDERS"
By: /s/ Xxxx Xxxxxxxxxx
---------------------------------------------
Xxxx Xxxxxxxxxx
Address: 000 Xxx Xxxxxx Xx, Xxx 0X
---------------------------------------
Xxx Xxxx, XX 00000
---------------------------------------
---------------------------------------
By: /s/ M. Xxxxx Xxxxxx
---------------------------------------------
Xxxxx Xxxxxx
Address: 200 W, 79th #2g
---------------------------------------
XXX, XX 00000
---------------------------------------
---------------------------------------
By: /s/ Xxxx Xxxx
---------------------------------------------
Xxxx Xxxx
Address: 000 X 00 #00
---------------------------------------
XXX, XX 00000
---------------------------------------
---------------------------------------
29
EXHIBITS
--------
Parent's Closing Certificate....................................... Exhibit A-1
Sub's Closing Certificate.......................................... Exhibit A-2
Agreement to be Bound to Registration Rights Agreement............. Exhibit B
Option Agreement................................................... Exhibit C
Side Letter Agreement.............................................. Exhibit D
Opinion of Counsel to Parent....................................... Exhibit E
Small World Closing Certificate.................................... Exhibit F
Agreement to be Bound to Stockholders' Agreement................... Exhibit G
Stock Purchase Agreement between Small World and Xxxx Xxxx......... Exhibit H
Release Agreement.................................................. Exhibit I
Opinion of Counsel to Small World.................................. Exhibit J
SCHEDULE 4.1
------------
CERTIFICATE OF INCORPORATION AND
BYLAWS OF SMALL WORLD
SCHEDULE 4.3(A)
---------------
OUTSTANDING OBLIGATIONS OF SMALL WORLD
TO ISSUE SMALL WORLD OPTION,
WARRANTS OR OTHER STOCK RIGHTS
SCHEDULE 4.5
------------
CONFLICTS, REQUIRED FILINGS AND CONSENTS OF SMALL WORLD
SCHEDULE 4.7
------------
EXCEPTIONS TO ABSENCE OF CHANGES OF SMALL WORLD
SCHEDULE 4.8
------------
UNDISCLOSED LIABILITIES OF SMALL WORLD
SCHEDULE 4.9
------------
EXCEPTIONS TO TITLE TO PROPERTIES OF SMALL WORLD
SCHEDULE 4.10
-------------
EXCEPTIONS TO GOOD CONDITION OF EQUIPMENT OF SMALL WORLD
SCHEDULE 4.11
-------------
INTELLECTUAL PROPERTY OF SMALL WORLD
SCHEDULE 4.13
-------------
LEASES OF SMALL WORLD
SCHEDULE 4.14
-------------
CONTRACTS OF SMALL WORLD
SCHEDULE 4.15
-------------
DIRECTORS AND OFFICERS OF SMALL WORLD
SCHEDULE 4.17
-------------
LITIGATION OF SMALL WORLD
SCHEDULE 4.18
-------------
EMPLOYEE BENEFIT PLANS/LABOR RELATIONS OF SMALL WORLD
SCHEDULE 4.19
-------------
ERISA ISSUES OF SMALL WORLD
SCHEDULE 4.21
-------------
SMALL WORLD PERMITS
SCHEDULE 4.23
-------------
SMALL WORLD BROKERS
SCHEDULE 4.26
-------------
EXCEPTIONS TO CURRENT STATUS OF ACCOUNTS PAYABLE OF SMALL WORLD
SCHEDULE 4.27
-------------
INSURANCE POLICIES OF SMALL WORLD
SCHEDULE 4.29
-------------
SMALL WORLD DEBT
SCHEDULE 5.1
------------
CERTIFICATE OF INCORPORATION AND BYLAWS OF PARENT AND SUB
SCHEDULE 5.3
------------
CONFLICTS, REQUIRED FILINGS AND CONSENTS OF PARENT AND SUB
SCHEDULE 5.4
------------
PARENT LITIGATION
SCHEDULE 5.5
------------
PARENT AND SUB BROKERS
SCHEDULE 5.6
------------
CAPITALIZATION OF PARENT
SCHEDULE 5.7
------------
SUBSIDIARIES OF PARENT
SCHEDULE 5.9
------------
PARENT UNDISCLOSED LIABILITIES
SCHEDULE 6.4(B) & (C)
---------------------
OPTIONS TO PURCHASE CLASS B COMMON STOCK
SCHEDULE 7.1(B)
---------------
PARENT CONSENTS
SCHEDULE 7.2(B)
---------------
SMALL WORLD CONSENTS
