EXHIBIT 8
PLAN OF MERGER
DATED AS OF OCTOBER 9, 1998
AMONG
YAHOO! INC.,
YO ACQUISITION CORPORATION
AND
YOYODYNE ENTERTAINMENT, INC.
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TABLE OF CONTENTS
(continued)
EXHIBITS Page
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EXHIBIT A - VOTING AGREEMENT
EXHIBIT B - NONCOMPETITION AGREEMENT
EXHIBIT C - STOCKHOLDERS AGREEMENT
EXHIBIT D - ESCROW AGREEMENT
EXHIBIT E - SUBJECT MATTER OF OPINION OF COUNSEL TO TARGET
EXHIBIT F - SUBJECT MATTER OF OPINION OF COUNSEL TO ACQUIROR
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AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER dated as of October 9, 1998 (this
"AGREEMENT"), is entered into by and among Yahoo! Inc., a California corporation
("ACQUIROR"), YO Acquisition Corporation, a Delaware corporation and a
wholly-owned subsidiary of Acquiror ("SUB"), and Yoyodyne Entertainment, Inc., a
Delaware corporation ("TARGET").
RECITALS:
A. The Boards of Directors of Acquiror, Sub and Target deem it advisable
and in the best interests of each corporation and their respective stockholders
that Acquiror and Target combine in order to advance the long-term business
interests of Acquiror and Target;
B. The combination of Acquiror and Target shall be effected by the terms
of this Agreement through a transaction in which Sub will merge with and into
Target, Target will become a wholly-owned subsidiary of Acquiror and the
stockholders of Target will become shareholders of Acquiror (the "MERGER");
C. For Federal income tax purposes, it is intended that the Merger shall
qualify as a reorganization within the meaning of Section 368(a) of the Internal
Revenue Code of 1986, as amended (the "CODE");
D. For accounting purposes, it is intended that the Merger shall be
accounted for as a pooling of interests transaction;
E. As a condition and inducement to Acquiror's willingness to enter into
this Agreement, certain Target stockholders holding no less than 95% of the
issued and outstanding voting stock of Target, have, concurrently with the
execution of this Agreement, executed and delivered Voting Agreements in the
form attached hereto as Exhibit A (the "VOTING AGREEMENTS"), pursuant to which
such stockholders have, among other things, agreed to vote their shares of
Target capital stock in favor of the Merger and to grant Acquiror irrevocable
proxies to vote such shares;
F. As a further condition and inducement to Acquiror's willingness to
enter into this Agreement, certain employees of Target who are also stockholders
of Target have, concurrently with the execution of this Agreement executed and
delivered Noncompetition Agreements in the form attached hereto as Exhibit B
(the "NONCOMPETITION AGREEMENTS"), which agreements shall only become effective
at the Effective Time (as defined in Section 1.1 below).
G. As a further condition and inducement to Acquiror's willingness to
enter into this Agreement, certain stockholders of Target have executed and
delivered to Acquiror Stockholders Agreements in the form attached hereto as
Exhibit C (the "STOCKHOLDERS AGREEMENTS").
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NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth below, the
parties agree as follows:
ARTICLE I
THE MERGER
Section 1.1 Effective Time of the Merger. Subject to the provisions of
this Agreement, a certificate of merger (the "CERTIFICATE OF MERGER") in such
mutually acceptable form as is required by the relevant provisions of the
Delaware General Corporation Law ("DELAWARE LAW") shall be duly executed and
delivered by the parties hereto and thereafter delivered to the Secretary of
State of the State of Delaware for filing on the Closing Date (as defined in
Section 1.2). The Merger shall become effective upon the due and valid filing of
the Certificate of Merger with the Secretary of State of the State of Delaware
or at such time thereafter as is provided in the Certificate of Merger (the
"EFFECTIVE TIME").
Section 1.2 Closing. The closing of the Merger (the "CLOSING") will take
place at 10:00 a.m., California time, on a date to be specified by Acquiror and
Target, which shall be no later than the second business day after satisfaction
or waiver of the latest to occur of the conditions set forth in Article VIII
(other than the delivery of the officers' certificates referred to therein) (the
"CLOSING DATE"), at the offices of Venture Law Group, A Professional
Corporation, 0000 Xxxx Xxxx Xxxx, Xxxxx Xxxx, Xxxxxxxxxx unless another date,
time or place is agreed to in writing by Acquiror and Target.
Section 1.3 Effects of the Merger.
(a) At the Effective Time (i) the separate existence of Sub shall cease
and Sub shall be merged with and into Target (Sub and Target are sometimes
referred to herein as the "CONSTITUENT CORPORATIONS" and Target following
consummation of the Merger is sometimes referred to herein as the "SURVIVING
CORPORATION"), (ii) the Certificate of Incorporation of Sub shall be the
Certificate of Incorporation of the Surviving Corporation and (iii) the Bylaws
of Sub as in effect immediately prior to the Effective Time shall be the Bylaws
of the Surviving Corporation.
(b) At the Effective Time, the effect of the Merger shall be as provided
in the applicable provisions of Delaware Law. Without limiting the generality of
the foregoing, at and after the Effective Time, the Surviving Corporation shall
possess all the rights, privileges, powers and franchises, and be subject to all
the restrictions, disabilities and duties of each of the Constituent
Corporations.
Section 1.4 Directors and Officers. The directors of Sub immediately
prior to the Effective Time shall be the initial directors of the Surviving
Corporation, each to hold office in accordance with the Certificate of
Incorporation and Bylaws of the Surviving Corporation, and the officers of Sub
immediately prior to the Effective Time shall be the initial officers of the
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Surviving Corporation, in each case until their respective successors are
duly elected or appointed and qualified.
ARTICLE II
CONVERSION OF SECURITIES
Section 2.1 Conversion of Capital Stock. At the Effective Time, by virtue
of the Merger and without any action on the part of the holder of any shares of
Series A Cumulative Convertible Preferred Stock, $.01 par value, of Target (the
"TARGET PREFERRED STOCK") or shares of Common Stock, $0.01 par value, of Target
("TARGET COMMON STOCK"), or capital stock of Sub:
(a) Capital Stock of Sub. Each issued and outstanding share of the
capital stock of Sub shall be converted into and become one fully paid and
nonassessable share of Common Stock, no par value, of the Surviving Corporation.
(b) Cancellation of Acquiror-Owned and Target-Owned Stock. Any shares
of Target Common Stock or Target Preferred Stock that are owned by Acquiror,
Sub, Target or any other direct or indirect wholly-owned Subsidiary (as defined
below) of Acquiror or Target shall be canceled and retired and shall cease to
exist and no stock of Acquiror or other consideration shall be delivered in
exchange. As used in this Agreement, the word "SUBSIDIARY" means, with respect
to any other party, any corporation or other organization, whether incorporated
or unincorporated, of which (i) such party or any other Subsidiary of such party
is a general partner (excluding partnerships, the general partnership interests
of which held by such party or any Subsidiary of such party do not have a
majority of the voting interest in such partnership) or (ii) at least a majority
of the securities or other interests having by their terms ordinary voting power
to elect a majority of the Board of Directors or others performing similar
functions with respect to such corporation or other organization or a majority
of the profit interests in such other organization is directly or indirectly
owned or controlled by such party or by any one or more of its Subsidiaries, or
by such party and one or more of its Subsidiaries.
(c) Exchange Ratio.
(i) Subject to Sections 2.2 and 2.4, each issued and outstanding
share of Target Common Stock and Target Preferred Stock (other than shares to
be canceled in accordance with Section 2.1(b) and any Dissenting Shares as
defined in and to the extent provided in Section 2.3) shall, by virtue of the
Merger and without any action on the part of the holder thereof, be converted
into the right to receive a fraction of a fully paid and nonassessable share of
Acquiror Common Stock (as defined in Section 4.2) equal to the "COMMON EXCHANGE
RATIO" or the "PREFERRED EXCHANGE RATIO", as the case may be, as defined in and
determined in accordance with the provisions of this Section 2.1(c). All such
shares of Target Common Stock and Target Preferred Stock, when so converted,
shall no longer be outstanding and shall automatically be canceled and retired
and shall cease to exist, and each holder of a certificate representing any
such shares shall cease to have any rights with respect thereto, except the
right to receive the shares of Acquiror Common Stock and any cash in lieu of
fractional shares of
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Acquiror Common Stock to be issued or paid in consideration therefor upon the
surrender of such certificate in accordance with Section 2.4, without interest.
(ii) The "TOTAL CONSIDERATION SHARES" shall be equal to 280,664
shares of Acquiror Common Stock. The "PREFERRED EXCHANGE RATIO" shall be equal
to (i) the number of the Total Consideration Shares required to be distributed
to the holders of Target Preferred Stock, pursuant to Target's Certificate of
Incorporation, divided by (ii) the number of shares of Target Preferred Stock
outstanding as of the Effective Time. The "COMMON EXCHANGE RATIO" shall be equal
to (i) the number of the Total Consideration Shares required to be distributed
to the holders of Target Common Stock (assuming prior exercise for cash of all
Target Options and Target Warrants), pursuant to Target's Certificate of
Incorporation, divided by (ii) the number of shares of Target Common Stock
outstanding or subject to issuance upon exercise of Target Options and Target
Warrants as of the Effective Time. The Preferred Exchange Ratio and the Common
Exchange Ratio are referred to collectively as the "EXCHANGE RATIOS". In no
event will the total number of shares of Acquiror Common Stock issuable by
Acquiror pursuant to the Merger (including shares of Acquiror Common Stock
issuable upon exercise of Target Options or Target Warrants assumed by Target in
the Merger) exceed the Total Consideration Shares. The allocation of the Total
Consideration Shares among each holder of Target capital stock, warrants and
options is set forth in the Disclosure Schedule.
(iii) If, on or after the date of this Agreement and prior to the
Effective Time, the outstanding shares of Acquiror Common Stock or Target
Preferred Stock shall have been changed into a different number of shares or a
different class by reason of any reclassification, split-up, stock dividend or
stock combination, then the Exchange Ratios shall be correspondingly adjusted.
The Exchange Ratios shall not change as a result of fluctuations in the market
price of Acquiror Common Stock between the date of this Agreement and the
Effective Time.
(d) Target Stock Options and Warrants. At the Effective Time, all
then outstanding options, whether vested or unvested ("TARGET OPTIONS") to
purchase Target Common Stock issued under Target's 1996 Stock Option Plan (the
"TARGET OPTION PLAN") and all outstanding warrants to purchase Target Common
Stock ("TARGET WARRANTS") that by their terms survive the Closing will be
assumed by Acquiror in accordance with Section 6.5. All of the Target Options
and all of the Target Warrants issued and outstanding as of the date of this
Agreement are listed on Schedule 2.1(d) attached hereto. An updated Schedule
2.1(d) of Target Options and Target Warrants shall be delivered by Target to
Acquiror on the Closing Date.
(e) Restricted Shares. Any shares of Target Common Stock which are
subject to repurchase by Target in the event the holder thereof ceases to be
employed by Target ("TARGET RESTRICTED SHARES") shall be converted into
Acquiror Common Stock on the same basis as provided in subsection (c) above and
shall be registered in such holder's name, but shall be held by Target or
Acquiror pursuant to the existing agreements in effect on the date of this
Agreement. Holders of the Target Restricted Shares are identified on Schedule
2.1(e) together with the vesting schedules associated with such shares.
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Section 2.2 Escrow Agreement. At the Effective Time or such later time
as determined in accordance with Section 2.3(b), Acquiror will, on behalf of the
holders of Target Common Stock, Target Preferred Stock, Target Options and
Target Warrants, deposit in escrow certificates representing 23,528 shares of
Acquiror Common Stock. Such shares shall be held in escrow on behalf of the
persons who are the holders of Target Common Stock or Target Preferred Stock in
the Merger immediately prior to the Effective Time (the "FORMER TARGET
STOCKHOLDERS"), in accordance with the portion of Total Consideration Shares
allocable to each such Former Target Stockholder based upon the Exchange Ratios
("PRO RATA PORTION"). Such shares (collectively, the "ESCROW SHARES") shall be
held and applied pursuant to the provisions of an escrow agreement (the "ESCROW
AGREEMENT") to be executed pursuant to Section 7.6.
Section 2.3 Dissenting Shares.
(a) Notwithstanding any provision of this Agreement to the contrary,
any shares of Target Common Stock or Target Preferred Stock held by a holder
who has exercised such holder's appraisal rights in accordance with Section 262
of Delaware Law, and who, as of the Effective Time, has not effectively
withdrawn or lost such appraisal rights ("DISSENTING SHARES"), shall not be
converted into or represent a right to receive Acquiror Common Stock pursuant
to Section 2.1, but the holder of the Dissenting Shares shall only be entitled
to such rights as are granted by Section 262 of Delaware Law.
(b) Notwithstanding the provisions of Section 2.3(a), if any holder
of shares of Target Common Stock or Target Preferred Stock who demands his
appraisal rights with respect to such shares under Section 2.1 shall effectively
withdraw or lose (through failure to perfect or otherwise) his rights to receive
payment for the fair market value of such shares under Delaware Law, then, as of
the later of the Effective Time or the occurrence of such event, such holder's
shares shall automatically be converted into and represent only the right to
receive Acquiror Common Stock and payment for fractional shares as provided in
Section 2.1(c), without interest, upon surrender of the certificate or
certificates representing such shares; provided that if such holder effectively
withdraws or loses his right to receive payment for the fair market value of
such shares after the Effective Time, then, at such time Acquiror will deposit
in escrow certificates representing such holder's Pro Rata Portion of the Escrow
Shares.
(c) Target shall give Acquiror (i) prompt notice of any written
demands for payment with respect to any shares of capital stock of Target
pursuant to Section 262 of Delaware Law, withdrawals of such demands, and any
other instruments served pursuant to Delaware Law and received by the Target
and (ii) the opportunity to participate in all negotiations and proceedings
with respect to demands for appraisal rights under Delaware Law. Target shall
not, except with the prior written consent of Acquiror, voluntarily make any
payment with respect to any demands for appraisal rights with respect to Target
Common Stock or Target Preferred Stock or offer to settle or settle any such
demands.
Section 2.4 Exchange of Certificates.
(a) From and after the Effective Time, each holder of an outstanding
certificate or certificates ("CERTIFICATES") which represented shares of Target
Common Stock or
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Target Preferred Stock immediately prior to the Effective Time shall have the
right to surrender each Certificate to Acquiror (or at Acquiror's option, an
exchange agent to be appointed by Acquiror), and receive promptly in exchange
for all Certificates held by such holder a certificate representing the number
of whole shares of Acquiror Common Stock (other than the Escrow Shares) into
which the Target Common Stock or Target Preferred Stock evidenced by the
Certificates so surrendered shall have been converted pursuant to the provisions
of Article II of this Agreement. The surrender of Certificates shall be
accompanied by duly completed and executed Letters of Transmittal in such form
as may be reasonably specified by Acquiror. Until surrendered, each outstanding
Certificate which prior to the Effective Time represented shares of Target
Common Stock or Target Preferred Stock shall be deemed for all corporate
purposes to evidence ownership of the number of whole shares of Acquiror Common
Stock into which the shares of Target Common Stock have been converted but
shall, subject to applicable appraisal rights under Delaware Law and Section
2.3, have no other rights. Subject to applicable appraisal rights under Delaware
Law and Section 2.3, from and after the Effective Time, the holders of shares of
Target Common Stock and Target Preferred Stock shall cease to have any rights in
respect of such shares and their rights shall be solely in respect of the
Acquiror Common Stock into which such shares of Target Common Stock or Target
Preferred Stock have been converted. From and after the Effective Time, there
shall be no further registration of transfers on the records of Target of shares
of Target Common Stock and Target Preferred Stock outstanding immediately prior
to the Effective Time.
(b) If any shares of Acquiror Common Stock are to be issued in the
name of a person other than the person in whose name the Certificate(s)
surrendered in exchange therefor is registered, it shall be a condition to the
issuance of such shares that (i) the Certificate(s) so surrendered shall be
transferable, and shall be properly assigned, endorsed or accompanied by
appropriate stock powers, (ii) such transfer shall otherwise be proper and
(iii) the person requesting such transfer shall pay Acquiror, or its exchange
agent, any transfer or other taxes payable by reason of the foregoing or
establish to the satisfaction of Acquiror that such taxes have been paid or are
not required to be paid. Notwithstanding the foregoing, neither Acquiror nor
Target shall be liable to a holder of shares of Target Common Stock or Target
Preferred Stock for shares of Acquiror Common Stock issuable to such holder
pursuant to the provisions of Article II of this Agreement that are delivered
to a public official pursuant to applicable abandoned property, escheat or
similar laws.
(c) In the event any Certificate shall have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the person claiming
such Certificate to be lost, stolen or destroyed, Acquiror shall issue in
exchange for such lost, stolen or destroyed Certificate the shares of Acquiror
Common Stock issuable in exchange therefor pursuant to the provisions of Article
II of the Agreement. The Board of Directors of Acquiror may in its discretion
and as a condition precedent to the issuance thereof, require the owner of such
lost, stolen or destroyed Certificate to provide to Acquiror an indemnity
agreement against any claim that may be made against Acquiror with respect to
the Certificate alleged to have been lost, stolen or destroyed.
Section 2.5 Distributions with Respect to Unexchanged Shares. No
dividends or other distributions declared or made after the Effective Time
with respect to Acquiror Common Stock
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with a record date after the Effective Time shall be paid to the holder of any
unsurrendered Certificate with respect to the shares of Acquiror Common Stock
represented thereby and no cash payment in lieu of fractional shares shall be
paid to any such holder pursuant to Section 2.6 below until the holder of record
of such Certificate shall surrender such Certificate. Subject to the effect of
applicable laws, following surrender of any such Certificate, there shall be
paid to the record holder of the certificates representing whole shares of
Acquiror Common Stock issued in exchange therefor, without interest, (i) at the
time of such surrender, the amount of any cash payable in lieu of a fractional
share of Acquiror Common Stock to which such holder is entitled pursuant to
Section 2.6 below and the amount of any dividends or other distributions with a
record date after the Effective Time previously paid with respect to such whole
shares of Acquiror Common Stock, and (ii) at the appropriate payment date, the
amount of dividends or other distributions with a record date after the
Effective Time but prior to surrender and a payment date subsequent to surrender
payable with respect to such whole shares of Acquiror Common Stock.
Section 2.6 No Fractional Shares. No certificate or scrip representing
fractional shares of Acquiror Common Stock shall be issued upon the surrender
for exchange of Certificates, and such fractional share interests will not
entitle the owner thereof to vote or to any rights of a shareholder of Acquiror.
Notwithstanding any other provision of this Agreement, each holder of shares of
Target Common Stock or Target Preferred Stock exchanged pursuant to the Merger
who would otherwise have been entitled to receive a fraction of a share of
Acquiror Common Stock (after taking into account all Certificates delivered by
such holder) shall receive, in lieu thereof, cash (without interest) in an
amount equal to such fractional part of a share of Acquiror Common Stock
multiplied by $119.36.
Section 2.7 Tax and Accounting Consequences.
(a) It is intended by the parties hereto that the Merger shall
constitute a "reorganization" within the meaning of Section 368 of the Code.
The parties hereto adopt this Agreement as a "plan of reorganization" within
the meaning of Sections 1.368-2(g) and 1.368- 3(a) of the United States Income
Tax Regulations.
(b) It is intended by the parties hereto that the Merger shall
qualify for accounting treatment as a pooling of interests.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF TARGET
Target represents and warrants to Acquiror and Sub that the statements
contained in this Article III are true and correct, except as set forth in the
disclosure schedule delivered by Target to Acquiror on or before the date of
this Agreement (the "TARGET DISCLOSURE SCHEDULE"). The Target Disclosure
Schedule shall be arranged in paragraphs corresponding to the numbered and
lettered paragraphs contained in this Article III and shall deem to
cross-reference to the other numbered or lettered paragraphs to which the
representation and warranty with respect to which disclosure is made is
reasonably related on the face of such disclosure without reference to
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extrinsic documentation to an objective third party reviewing such disclosure.
Moreover, the disclosures made on the Target Disclosure Schedule shall not, by
the fact of their disclosure, be deemed to acknowledge that disclosure of such
information is required to be disclosed under this Article III.
Section 3.1 Organization of Target. Target is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, has all requisite corporate power to own, lease and operate its
property and to carry on its business as now being conducted, and is duly
qualified or licensed to do business and is in good standing as a foreign
corporation in each jurisdiction in which the nature of its business or
ownership or leasing of properties makes such qualification or licensing
necessary and where the failure to be so qualified or licensed could reasonably
be expected to result in a material adverse effect on the business, assets
(including intangible assets), liabilities, condition (financial or otherwise),
property or results of operations (a "MATERIAL ADVERSE EFFECT") of Target. The
Target Disclosure Schedule contains a true and complete listing of the locations
of all sales offices, manufacturing facilities, and any other offices or
facilities of Target and a true and complete list of all states in which Target
maintains any employees. The Target Disclosure Schedule contains a true and
complete list of all states in which Target is duly qualified or licensed to
transact business as a foreign corporation.
Section 3.2 Target Capital Structure.
(a) The authorized capital stock of Target consists of 8,950,000
shares of Target Common Stock, 50,000 shares of Class B Common Stock,
$0.01 par value per share ("TARGET CLASS B COMMON STOCK"), and 2,000,000 shares
of Preferred Stock, of which 1,500,000 shares are designated as Series A
Cumulative Convertible Preferred Stock. As of the date of this Agreement, there
are (i) 4,241,883 shares of Target Common Stock issued and outstanding, all of
which are validly issued, fully paid and nonassessable and none of which are
subject to repurchase rights, (ii) no shares of Target Class B Common Stock
issued or outstanding, (iii) 1,276,958.332 shares of Series A Preferred Stock
issued and outstanding, all of which are validly issued, fully paid and
nonassessable, and each share of which is convertible into 1.2 shares of Target
Common Stock, (iii) warrants to purchase up to 632,610.671 shares of Target
Common Stock (collectively, the "TARGET WARRANTS"); (iv) 1,532,349.998 shares of
Target Common Stock reserved for future issuance upon conversion of the Target
Preferred Stock; (v) 774,952 shares of Target Common Stock reserved for future
issuance pursuant to Target Options granted and outstanding under the Target
Option Plan; and (vi) 225,048 shares of Target Common Stock reserved for
issuance upon exercise of options available to be granted in the future under
the Target Option Plan. The issued and outstanding shares of Target Common Stock
and of Target Preferred Stock are held of record by the shareholders of Target
as set forth and identified in the shareholder list attached as Schedule 3.2(a)
to the Target Disclosure Schedule. The issued and outstanding Target Options are
held of record by the option holders as set forth and identified in the option
holder list provided to Acquiror or its representatives. The issued and
outstanding Target Warrants are held of record by the warrantholders as set
forth and identified in the warrantholder list provided to Acquiror or its
representatives. All shares of Target Common Stock and Target Preferred Stock
subject to issuance as specified above, upon
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issuance on the terms and conditions (including payment) specified in the
instruments pursuant to which they are issuable, shall be duly authorized,
validly issued, fully paid and nonassessable. All shares of Target Common Stock
subject to issuance upon the exercise of Target Options and Target Warrants,
upon issuance on the terms and conditions (including payment) specified in the
instrument pursuant to which they are issuable, will be duly authorized, validly
issued, fully paid and nonassessable. All outstanding shares of Target Common
Stock, Target Preferred Stock and outstanding Target Options and Target Warrants
(collectively "TARGET SECURITIES") were issued in compliance with applicable
federal and state securities laws. Except as set forth in the Target Disclosure
Schedule, there are no obligations, contingent or otherwise, of Target to
repurchase, redeem or otherwise acquire any shares of Target Common Stock or
Target Preferred Stock or make any investment (in the form of a loan, capital
contribution or otherwise) in any other entity. An updated Schedule 3.2(a)
reflecting changes permitted by this Agreement in the capitalization of Target
between the date hereof and the Effective Time shall be delivered by Target to
Acquiror on the Closing Date.
(b) Except as set forth in this Section 3.2, there are no equity
securities of any class or series of Target, or any security exchangeable into
or exercisable for such equity securities, issued, reserved for issuance or
outstanding. Except as set forth in this Section 3.2, there are no options,
warrants, equity securities, calls, rights, commitments or agreements of any
character to which Target is a party or by which it is bound obligating Target
to issue, deliver or sell, or cause to be issued, delivered or sold, additional
shares of capital stock of Target or obligating Target to grant, extend,
accelerate the vesting of or enter into any such option, warrant, equity
security, call, right, commitment or agreement. Except as set forth in the
Target Disclosure Schedule, Target is not in active discussion, formal or
informal, with any person or entity regarding the issuance of any form of
additional Target equity that has not been issued or committed to prior to the
date of this Agreement. Except as provided in this Agreement and the other
Transaction Documents (as defined in Section 3.3(a)) or any transaction
contemplated hereby or thereby, there are no voting trusts, proxies or other
agreements or understandings with respect to the voting of the shares of capital
stock of Target.
(c) All Target Options have been issued in accordance with the terms
of the Target Option Plan and pursuant to the standard forms of option agreement
previously provided to Acquiror or its representatives. No option will by its
terms require an adjustment in connection with the Merger. Neither the
consummation of transactions contemplated by this Agreement or the other
Transaction Documents nor any action taken by Target in connection with such
transactions will result in (i) any acceleration of vesting in favor of any
optionee under any Target Option; (ii) any additional benefits for any optionee
under any Target Option; or (iii) the inability of Acquiror after the Effective
Time to exercise any right or benefit held by Target prior to the Effective Time
with respect to any Target Option assumed by Acquiror, including, without
limitation, the right to repurchase an optionee's unvested shares on termination
of such optionee's employment. The assumption by Acquiror of Target Options in
accordance with Section 6.5 hereunder will not constitute a breach of the Target
Plan or any agreement entered into pursuant to such plan.
Section 3.3 Authority; No Conflict; Required Filings and Consents.
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(a) Target has all requisite corporate power and authority to enter
into this Agreement and all Transaction Documents to which it is or will become
a party and to consummate the transactions contemplated by this Agreement and
such Transaction Documents. The execution and delivery of this Agreement and
such Transaction Documents and the consummation of the transactions contemplated
by this Agreement and such Transaction Documents have been duly authorized by
all necessary corporate action on the part of Target, subject only to the
approval of the Merger by Target's stockholders under the provisions of Delaware
Law and Target's Certificate of Incorporation. This Agreement has been and such
Transaction Documents have been or, to the extent not executed by Target as of
the date hereof, will be duly executed and delivered by Target. This Agreement
and each of the Transaction Documents to which Target is a party constitutes,
and each of the Transaction Documents to which Target will become a party, when
executed and delivered by Target, will constitute, assuming the due
authorization, execution and delivery by the other parties hereto and thereto,
the valid and binding obligation of Target, enforceable against Target in
accordance with their respective terms, except to the extent that enforceability
may be limited by applicable bankruptcy, reorganization, insolvency, moratorium
or other laws affecting the enforcement of creditors' rights generally and by
general principles of equity, regardless of whether such enforceability is
considered in a proceeding at law or in equity. For purposes of this Agreement,
"TRANSACTION DOCUMENTS" means all documents or agreements required to be
delivered by any party under this Agreement including the Certificate of Merger,
the Escrow Agreement, the Voting Agreements, the Stockholders Agreements and the
Noncompetition Agreements.
(b) The execution and delivery by Target of this Agreement and the
Transaction Documents to which it is or will become a party does not, and the
consummation of the transactions contemplated by this Agreement and the
Transaction Documents to which it is or will become a party will not, (i)
conflict with, or result in any violation or breach of any provision of the
Certificate of Incorporation or Bylaws of Target, (ii) result in any violation
or breach of, or constitute (with or without notice or lapse of time, or both) a
default (or give rise to a right of termination, cancellation or acceleration of
any obligation or loss of any benefit) under any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, lease, contract or other
agreement, instrument or obligation to which Target is a party or by which it or
any of its properties or assets may be bound, or (iii) conflict or violate any
permit, concession, franchise, license, judgment, order, decree, statute, law,
ordinance, rule or regulation applicable to Target or any of its properties or
assets, except in the case of (ii) and (iii) for any such conflicts, violations,
defaults, terminations, cancellations or accelerations which would not
reasonably be expected to have a Material Adverse Effect on Target.
(c) None of the execution and delivery by Target of this Agreement or
of any other Transaction Document to which Target is or will become a party or
the consummation of the transactions contemplated by this Agreement or such
Transaction Document or the continuation of the business activities of Target
following consummation of the Merger without a Material Adverse Change (as
defined in Section 3.6(a)) will require any consent, approval, order or
authorization of, or registration, declaration or filing with, any court,
administrative agency or commission or other governmental authority or
instrumentality ("GOVERNMENTAL ENTITY"), except for (i) the filing of the
Certificate of Merger with the Delaware Secretary of State, (ii)
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such consents, approvals, orders, authorizations, registrations, declarations
and filings as may be required under applicable federal and state securities
laws and (iii) such other consents, authorizations, filings, approvals and
registrations which, if not obtained or made, could be expected to have a
Material Adverse Effect on Target.
Section 3.4 Financial Statements; Absence of Undisclosed Liabilities.
(a) Target has delivered to Acquiror copies of Target's unaudited
balance sheet as of September 30, 1998 (the "MOST RECENT BALANCE SHEET") and
statements of operations, stockholders' equity and cash flow for the 9-month
period then-ended (together with the Most Recent Balance Sheet, the "TARGET
INTERIM FINANCIALS") and the audited balance sheets as of December 31, 1997,
and the related audited statements of operations, stockholders' equity and cash
flows for the fiscal year ended December 31, 1997, respectively (collectively,
the "TARGET FINANCIAL STATEMENTS").
(b) The Target Financial Statements are in accordance with the books
and records of Target and present fairly in all material respects the financial
position, results of operations and cash flows of Target as of their historical
dates and for the periods indicated. The Target Financial Statements have been
prepared in accordance with generally accepted accounting principles applied on
a basis consistent with prior periods. The reserves, if any, reflected on the
Target Financial Statements are adequate in light of the contingencies with
respect to which they were made.
(c) Target has no debt, liability, or obligation of any nature,
whether accrued, absolute, contingent, or otherwise, and whether due or to
become due, that is not reflected or reserved against in the Most Recent
Balance Sheet, except for those that may have been incurred after the date of
the Most Recent Balance Sheet or that would not reasonably be required, in
accordance with generally accepted accounting principles applied on a basis
consistent with prior periods, to be included in a balance sheet or the notes
thereto. All debts, liabilities, and obligations incurred after the date of the
Most Recent Balance Sheet were incurred in the ordinary course of business and
are not material both individually and in the aggregate to Target or its
business.
Section 3.5 Tax Matters.
(a) For purposes of this Section 3.5 and other provisions of this
Agreement relating to Taxes, the following definitions shall apply:
(i) The term "TAXES" shall mean all taxes, however denominated,
including any interest, penalties or other additions to tax that may become
payable in respect thereof, (A) imposed by any federal, territorial, state,
local or foreign government or any agency or political subdivision of any such
government, which taxes shall include, without limiting the generality of the
foregoing, all income or profits taxes (including but not limited to, federal
income taxes and state income taxes), payroll and employee withholding taxes,
unemployment insurance, social security taxes, sales and use taxes, ad valorem
taxes, excise taxes, franchise taxes, gross receipts taxes, business license
taxes, occupation taxes, real and personal property
- 11 -
taxes, stamp taxes, environmental taxes, ozone depleting chemicals taxes,
transfer taxes, workers' compensation, Pension Benefit Guaranty Corporation
premiums and other governmental charges, and other obligations of the same or
of a similar nature to any of the foregoing, which are required to be paid,
withheld or collected, (B) any liability for the payment of amounts referred to
in (A) as a result of being a member of any affiliated, consolidated, combined
or unitary group, or (C) any liability for amounts referred to in (A) or (B) as
a result of any obligations to indemnify another person.
(ii) The term "RETURNS" shall mean all reports, estimates,
declarations of estimated tax, information statements and returns relating to,
or required to be filed in connection with, any Taxes, including information
returns or reports with respect to backup withholding and other payments to
third parties.
(b) All Returns required to be filed by or on behalf of Target have
been duly filed on a timely basis and such Returns are true, complete and
correct. All Taxes shown to be payable on such Returns or on subsequent
assessments with respect thereto, and all payments of estimated Taxes required
to be made by or on behalf of Target under Section 6655 of the Code or
comparable provisions of state, local or foreign law, have been paid in full on
a timely basis or have been accrued on the Most Recent Balance Sheet, and no
other Taxes are payable by Target with respect to items or periods covered by
such Returns (whether or not shown on or reportable on such Returns). Target
has withheld and paid over all Taxes required to have been withheld and paid
over, and complied with all information reporting and backup withholding
requirements, including maintenance of required records with respect thereto,
in connection with amounts paid or owing to any employee, creditor, independent
contractor, or other third party. There are no liens on any of the assets of
Target with respect to Taxes, other than liens for Taxes not yet due and payable
or for Taxes that Target is contesting in good faith through appropriate
proceedings and for which appropriate reserves have been established on the
Most Recent Balance Sheet. Target has not at any time been (i) a member of an
affiliated group of corporations filing consolidated, combined or unitary
income or franchise tax returns, or (ii) a member of any partnership or joint
venture for a period for which the statue of limitations for any Tax potentially
applicable as a result of such membership has not expired.
(c) The amount of Target's liability for unpaid Taxes (whether actual
or contingent) for all periods through the date of the Most Recent Balance Sheet
does not, in the aggregate, exceed the amount of the current liability accruals
for Taxes reflected on the Most Recent Balance Sheet, and the Most Recent
Balance Sheet reflects proper accrual in accordance with generally accepted
accounting principles applied on a basis consistent with prior periods of all
liabilities for Taxes payable after the date of the Most Recent Balance Sheet
attributable to transactions and events occurring prior to such date. No
liability for Taxes has been incurred (or prior to Closing will be incurred)
since such date other than in the ordinary course of business.
(d) Acquiror has been furnished by Target with true and complete
copies of (i) relevant portions of income tax audit reports, statements of
deficiencies, closing or other agreements received by or on behalf of Target
relating to Taxes, and (ii) all federal and state income or franchise tax
Returns and state sales and use tax Returns for or including Target for all
- 12 -
periods since the inception of Target. Target does not do business in or derive
income from any state other than states for which Returns have been duly filed
and furnished to Acquiror.
(e) The Returns of or including Target have never been audited by a
government or taxing authority, nor is any such audit in process, pending or,
to Target's knowledge, threatened (either in writing or verbally, formally or
informally). No deficiencies exist or have been asserted (either in writing or
verbally, formally or informally), and Target has not received notice (either in
writing or verbally, formally or informally) that it has not filed a Return or
paid Taxes required to be filed or paid. Target is neither a party to any action
or proceeding for assessment or collection of Taxes, nor has such event been
asserted or threatened (either in writing or verbally, formally or informally)
against Target or any of its assets. No waiver or extension of any statute of
limitations is in effect with respect to Taxes or Returns of Target. Target has
disclosed on its federal and state income and franchise tax Returns all
positions taken therein that could give rise to a substantial understatement
penalty within the meaning of Code Section 6662 or comparable provisions of
applicable state tax laws.
(f) Target is not, nor has it ever been, a party to any tax sharing
agreement.
(g) Target is not, nor has it been, a United States real property
holding corporation within the meaning of Section 897(c)(2) of the Code during
the applicable period specified in Section 897(c)(1)(A)(ii) of the Code, and
Acquiror is not required to withhold tax by reason of Section 1445 of the Code.
Target is not a "consenting corporation" under Section 341(f) of the Code.
Target has not entered into any compensatory agreements with respect to the
performance of services which payment thereunder would result in a nondeductible
expense to Target pursuant to Section 280G of the Code or an excise tax to the
recipient of such payment pursuant to Section 4999 of the Code. Target has not
agreed to, nor is it required to make any adjustment under Code Section 481(a)
by reason of, a change in accounting method. Target is not, nor has it been, a
"reporting corporation" subject to the information reporting and record
maintenance requirements of Section 6038A and the regulations thereunder. Target
is in compliance with the terms and conditions of any applicable tax exemptions,
agreements or orders of any foreign government to which it may be subject or
which it may have claimed, and the transactions contemplated by this Agreement
will not have any adverse effect on such compliance.
(h) The Target Disclosure Schedule sets forth accurate and complete
information regarding Target's net operating losses for federal and each
applicable state tax purposes. Except as a result of the transactions
contemplated hereby, Target has no net operating losses and credit carryovers or
other tax attributes currently subject to limitation under Sections 382, 383, or
384 of the Code.
Section 3.6 Absence of Certain Changes or Events. Since December 31,
1997, Target has not:
(a) suffered any material adverse change in its business, assets
(including intangible assets), liabilities, condition (financial or otherwise)
or results of operations ("MATERIAL ADVERSE CHANGE").
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(b) suffered any damage, destruction or loss, whether covered by
insurance or not, that has resulted, or could be reasonably expected to result,
in a Material Adverse Effect on Target;
(c) granted or agreed to make any increase in the compensation
payable or to become payable by Target to its officers or employees;
(d) declared, set aside or paid any dividend or made any other
distribution on or in respect of the shares of the capital stock of Target or
declared any direct or indirect redemption, retirement, purchase or other
acquisition by Target of such shares;
(e) issued any shares of capital stock of Target or any warrants,
rights, options or entered into any commitment relating to the shares
of Target, except for the issuance of shares of Target capital stock pursuant
to the exercise of Target Options and Target Warrants listed in the Target
Disclosure Schedule and the conversion of outstanding Target Preferred Stock;
(f) made any change in the accounting methods or practices it follows,
whether for general financial or tax purposes, or any change in depreciation or
amortization policies or rates adopted therein;
(g) sold, leased, abandoned or otherwise disposed of any real
property or any machinery, equipment or other operating property with an
individual net book value in excess of $1,000;
(h) sold, assigned, transferred, licensed or otherwise disposed of
any patent, trademark, trade name, brand name, copyright (or pending application
for any patent, trademark or copyright) invention, work of authorship, process,
know-how, formula or trade secret or interest thereunder or other intangible
asset;
(i) permitted or allowed any of its property or assets to be
subjected to any mortgage, deed of trust, pledge, lien, security interest or
other encumbrance of any kind (except those permitted under Section 3.7);
(j) made any capital expenditure or commitment individually in
excess of $10,000 or in the aggregate in excess of $25,000;
(k) paid, loaned or advanced any amount to, or sold, transferred or
leased any properties or assets to, or entered into any agreement or arrangement
with, any of its Affiliates (as defined in Section 3.16), officers, directors or
stockholders or any affiliate or associate of any of the foregoing;
(l) made any amendment to or terminated any agreement which, if not
so amended or terminated, would be required to be disclosed on the Target
Disclosure Schedule; or
- 14 -
(m) agreed to take any action described in this Section 3.6 or
outside of its ordinary course of business or which would constitute a breach
of any of the representations contained in this Agreement.
Section 3.7 Title and Related Matters. Target has good and valid title
to all its properties, interests in properties and assets, real and personal,
free and clear of all mortgages, liens, pledges, charges or encumbrances of any
kind or character, except the lien of current taxes not yet due and payable and
minor inperfections of and encumbrances on title, if any, as do not materially
detract from the value of or interfere with the present use of the property
affected thereby. The equipment of Target used in the operation of its business
is, taken as a whole, (i) adequate for the business conducted by Target and
(ii) in good operating condition and repair, ordinary wear and tear excepted.
All personal property leases to which Target is a party are valid, binding,
enforceable against Target and in effect in accordance with their respective
terms. To the knowledge of Target, there is not under any of such leases any
existing default or event of default or event which, with notice or lapse of
time or both, would constitute a default. The Target Disclosure Schedule
contains a description of all items of personal property with an individual net
book value in excess of $1,000 and real property leased or owned by Target,
describing its interest in said property. True and correct copies of Target's
real property and personal property leases have been provided to Acquiror or
its representatives.
Section 3.8 Proprietary Rights.
(a) Target owns all right, title and interest in and to, or otherwise
possesses legally enforceable rights, or is licensed to use, all patents,
copyrights, technology, software, software tools, know-how, processes, trade
secrets, trademarks, service marks, trade names, Internet domain names and other
proprietary rights used in the conduct of Target's business as conducted to the
date of this Agreement, including, without limitation, the technology,
information, databases, data lists, data compilations, and all proprietary
rights developed or discovered or used in connection with or contained in all
versions and implementations of Target's World Wide Web sites (including
xxx.xxxxxxxx.xxx and the other domain names listed in the Target Disclosure
Schedule) or any product which has been or is being distributed or sold by
Target or currently is under development by Target or has previously been under
development by Target (collectively, including such Web sites, the "TARGET
PRODUCTS"), free and clear of all liens, claims and encumbrances (including
without limitation licensing and distribution rights) (all of which are referred
to as "TARGET PROPRIETARY RIGHTS"). The Target Disclosure Schedule contains an
accurate and complete (i) description of all patents, trademarks (with separate
listings of registered and unregistered trademarks), trade names, Internet
domain names and registered copyrights in or related to the Target Products or
otherwise included in the Target Proprietary Rights and all applications and
registration statements therefor, including the jurisdictions in which each such
Target Proprietary Right has been issued or registered or in which any such
application of such issuance and registration has been filed, (ii) list of all
licenses and other agreements with third parties (the "THIRD PARTY LICENSES")
relating to any material patents, copyrights, trade secrets, software,
inventions, technology, know-how, processes or other proprietary rights that
Target is licensed or otherwise authorized by such third parties to use, market,
distribute or incorporate in Target Products (such patents, copyrights, trade
secrets,
- 15 -
software, inventions, technology, know-how, processes or other proprietary
rights are collectively referred to as the "THIRD PARTY TECHNOLOGY") and (iii)
list of all licenses and other agreements with third parties relating to any
material information, compilations, data lists or databases that Target is
licensed or otherwise authorized by such third parties to use, market,
disseminate distribute or incorporate in Target Products. All of Target's
patents, copyrights, trademarks, trade names or Internet domain name
registrations related to or in the Target Products are valid and in full force
and effect; and consummation of the transactions contemplated by this Agreement
will not alter or impair any such rights. No claims have been asserted or
threatened against Target (and Target is not aware of any claims which are
likely to be asserted or threatened against Target or which have been asserted
or threatened against others relating to Target Proprietary Rights or Target
Products) by any person challenging Target's use, possession, manufacture, sale
or distribution of Target Products under any Target Proprietary Rights
(including, without limitation, the Third Party Technology) or challenging or
questioning the validity or effectiveness of any material license or agreement
relating thereto (including, without limitation, the Third Party Licenses) or
alleging a violation of any person's or entity's privacy, personal or
confidentiality rights. Target knows of no valid basis for any claim of the type
specified in the immediately preceding sentence which could in any material way
relate to or interfere with the continued enhancement and exploitation by Target
of any of the Target Products. None of the Target Products nor the use or
exploitation of any Target Proprietary Rights in Target's current business
infringes on the rights of or constitutes misappropriation of any proprietary
information or intangible property right of any third person or entity,
including without limitation any patent, trade secret, copyright, trademark or
trade name, and Target has not been sued or named in any suit, action or
proceeding which involves a claim of such infringement, misappropriation or
unfair competition.
(b) Except as set forth in the Target Disclosure Schedule, Target has
not granted any third party any right to reproduce, distribute, market or
exploit any of the Target Products or any adaptations, translations, or
derivative works based on the Target Products or any portion thereof. Except
with respect to the rights of third parties to the Third Party Technology, no
third party has any express right to reproduce, distribute, market or exploit
any works or materials of which any of the Target Products are a "derivative
work" as that term is defined in the United States Copyright Act, Title 17,
U.S.C. Section 101.
(c) All material designs, drawings, specifications, source code,
object code, scripts, documentation, flow charts, diagrams, data lists,
databases, compilations and information incorporating, embodying or reflecting
any of the Target Products at any stage of their development (the "TARGET
COMPONENTS") were written, developed and created solely and exclusively by
employees of Target without the assistance of any third party or entity or were
created by third parties who assigned ownership of their rights to Target by
means of valid and enforceable consultant confidentiality and invention
assignment agreements, copies of which have been delivered to Acquiror. Target
has at all times used commercially reasonable efforts customary in its industry
to treat the Target Proprietary Rights related to Target Products and Target
Components as containing trade secrets and has not disclosed or otherwise dealt
with such items in such a manner as intended or reasonably likely to cause the
loss of such trade secrets by release into the public domain.
- 16 -
(d) To Target's knowledge, after due investigation, no employee,
contractor or consultant of Target is in violation in any material respect of
any term of any written employment contract, patent disclosure agreement or any
other written contract or agreement relating to the relationship of any such
employee, consultant or contractor with Target or, to Target's knowledge, any
other party because of the nature of the business conducted by Target or
proposed to be conducted by Target. The Target Disclosure Schedule lists all
employees, contractors and consultants who have participated in any way in the
development of the Target Products or the Target Proprietary Rights.
(e) Each person presently or previously employed by Target (including
independent contractors, if any) with access authorized by Target to
confidential information has executed a confidentiality and non-disclosure
agreement pursuant to the form of agreement previously provided to Acquiror or
its representatives.
(f) No product liability or warranty claims have been communicated
in writing to or threatened against Target.
(g) To Target's knowledge, there is no material unauthorized use,
disclosure, infringement or misappropriation of any Target Proprietary Rights,
or any Third Party Technology to the extent licensed by or through Target, by
any third party, including any employee or former employee of Target. Target has
not entered into any agreement to indemnify any other person against any charge
of infringement of any Target Proprietary Rights, except in the ordinary course
consistent with normal commercial practice for businesses of its type.
(h) Target has taken all steps customary and reasonable in the
industry to protect and preserve the confidentiality and proprietary nature of
all Intellectual Property and other confidential information not otherwise
protected by patents, patent applications or copyright ("CONFIDENTIAL
INFORMATION"). All use, disclosure or appropriation by Target or, to the best
knowledge of Target, by another party pursuant to rights granted to it by
Target, of Confidential Information owned by Target to a third party has been
pursuant to the terms of a written agreement between Target and such third
party. All use, disclosure or appropriation by Target of Confidential
Information not owned by Target has been pursuant to the terms of a written
agreement between Target and the owner of such Confidential Information, or is
otherwise lawful.
(i) The information contained in the Target consumer database
described in Schedule 3.8(i) hereto was gathered in the normal course of
Target's business pursuant to bona fide Target transactions and, to Target's
knowledge, is true and complete in all material respects. The number of users
entered into such database via registration is listed in Schedule 3.8(i).
Section 3.9 Employee Benefit Plans.
(a) The Target Disclosure Schedule lists, with respect to Target and
any trade or business (whether or not incorporated) which is treated as a single
employer with Target (an "ERISA AFFILIATE") within the meaning of Section
414(b), (c), (m) or (o) of the Code, (i) all employee benefit plans (as defined
in Section 3(3) of the Employee Retirement Income Security
- 17 -
Act of 1974, as amended ("ERISA"), (ii) each loan to a non-officer employee,
loans to officers and directors and any stock option, stock purchase,
phantom stock, stock appreciation right, supplemental retirement, severance,
sabbatical, medical, dental, vision care, disability, employee relocation,
cafeteria benefit (Code Section 125) or dependent care (Code Section 129), life
insurance or accident insurance plans, programs or arrangements, (iii) all
bonus, pension, profit sharing, savings, deferred compensation or incentive
plans, programs or arrangements, (iv) other fringe or employee benefit plans,
programs or arrangements that apply to senior management of Target and that do
not generally apply to all employees, and (v) any current or former employment
or executive compensation or severance agreements, written or otherwise, for the
benefit of, or relating to, any present or former employee, consultant or
director of Target as to which (with respect to any of items (i) through (v)
above) any potential liability is borne by Target (together, the "TARGET
EMPLOYEE PLANS").
(b) Target has delivered to Acquiror or its representatives a copy
of each of the Target Employee Plans and related plan documents (including trust
documents, insurance policies or contracts, employee booklets, summary plan
descriptions and other authorizing documents, and, to the extent still in its
possession, any material employee communications relating thereto) and has, with
respect to each Target Employee Plan which is subject to ERISA reporting
requirements, provided copies of any Form 5500 reports filed for the last three
plan years. Any Target Employee Plan intended to be qualified under Section
401(a) of the Code has either obtained from the Internal Revenue Service a
favorable determination letter as to its qualified status under the Code,
including all amendments to the Code effected by the Tax Reform Act of 1986 and
subsequent legislation, or has applied to the Internal Revenue Service for such
a determination letter prior to the expiration of the requisite period under
applicable Treasury Regulations or Internal Revenue Service pronouncements in
which to apply for such determination letter and to make any amendments
necessary to obtain a favorable determination. Target has also furnished
Acquiror with the most recent Internal Revenue Service determination letter
issued with respect to each such Target Employee Plan, and nothing has occurred
since the issuance of each such letter which could reasonably be expected to
cause the loss of the tax-qualified status of any Target Employee Plan subject
to Code Section 401(a).
(c) (i) None of the Target Employee Plans promises or provides
retiree medical or other retiree welfare benefits to any person; (ii) there has
been no "prohibited transaction," as such term is defined in Section 406 of
ERISA and Section 4975 of the Code, with respect to any Target Employee Plan;
(iii) each Target Employee Plan has been administered in accordance with its
terms and in compliance with the requirements prescribed by any and all
statutes, rules and regulations (including ERISA and the Code), and Target and
each subsidiary or ERISA Affiliate have performed all material obligations
required to be performed by them under, are not in any material respect in
default, under or violation of, and have no knowledge of any material default
or violation by any other party to, any of the Target Employee Plans;
(iv) neither Target nor any subsidiary or ERISA Affiliate is subject to any
liability or penalty under Sections 4976 through 4980 of the Code or Title I of
ERISA with respect to any of the Target Employee Plans; (v) all contributions
required to be made by Target or any subsidiary or ERISA Affiliate to any Target
Employee Plan have been made on or before their due dates and a reasonable
amount has been accrued for contributions to each Target Employee Plan for
- 18 -
the current plan years; (vi) with respect to each Target Employee Plan, no
"reportable event" within the meaning of Section 4043 of ERISA (excluding any
such event for which the thirty (30) day notice requirement has been waived
under the regulations to Section 4043 of ERISA) nor any event described in
Section 4062, 4063 or 4041 of ERISA has occurred; and (vii) no Target Employee
Plan is covered by, and neither Target nor any subsidiary or ERISA Affiliate has
incurred or expects to incur any material liability under Title IV of ERISA or
Section 412 of the Code. With respect to each Target Employee Plan subject to
ERISA as either an employee pension plan within the meaning of Section 3(2) of
ERISA or an employee welfare benefit plan within the meaning of Section 3(1) of
ERISA, Target has prepared in good faith and timely filed all requisite
governmental reports (which were true and correct as of the date filed) and has
properly and timely filed and distributed or posted all notices and reports to
employees required to be filed, distributed or posted with respect to each such
Target Employee Plan. No suit, administrative proceeding, action or other
litigation has been brought, or to the knowledge of Target is threatened,
against or with respect to any such Target Employee Plan, including any audit or
inquiry by the IRS or United States Department of Labor. Neither Target nor any
ERISA Affiliate is a party to, or has made any contribution to or otherwise
incurred any obligation under, any "multi-employer plan" as defined in Section
3(37) of ERISA.
(d) With respect to each Target Employee Plan, Target has complied
with (i) the applicable health care continuation and notice provisions of the
Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA") and the
proposed regulations thereunder, (ii) the applicable requirements of the Family
Leave Act of 1993 and the regulations thereunder, and (iii) the applicable
requirements of the Health Insurance Portability and Accountability Act of 1996
("HIPAA") and the temporary regulations thereunder.
(e) The consummation of the transactions contemplated by this
Agreement will not (i) entitle any current or former employee or other service
provider of Target or any other ERISA Affiliate to severance benefits or any
other payment (including, without limitation, unemployment compensation, golden
parachute or bonus), except as expressly provided in this Agreement, or
(ii) accelerate the time of payment or vesting of any such benefits, or
(iii) increase or accelerate any benefits or the amount of compensation due any
such employee or service provider.
(f) There has been no amendment to, written interpretation or
announcement (whether or not written) by Target or other ERISA Affiliate
relating to, or change in participation or coverage under, any Target Employee
Plan which would materially increase the expense of maintaining such Plan above
the level of expense incurred with respect to that Plan for the most recent
fiscal year included in the Target Financial Statements.
Section 3.10 Bank Accounts. The Target Disclosure Schedule sets forth the
names and locations of all banks, trust companies, savings and loan
associations, and other financial institutions at which Target maintains
accounts of any nature and the names of all persons authorized to draw thereon
or make withdrawals therefrom.
Section 3.11 Contracts.
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(a) Except as set forth on the Target Disclosure Schedule:
(i) Target has no agreements, contracts or commitments that
provide for the sale, licensing or distribution by Target of any Target Products
or Target Proprietary Rights. Without limiting the foregoing, Target has not
granted to any third party (including, without limitation, original equipment
manufacturers ("OEMS") and site-license customers) any rights to reproduce,
manufacture or distribute any of the Target Products, nor has Target granted to
any third party any exclusive rights of any kind (including, without limitation,
exclusivity with regard to categories of advertisers on Target's World Wide Web
site, territorial exclusivity or exclusivity with respect to particular
versions, implementations or translations of any of the Target Products), nor
has Target granted any third party any right to market any of the Target
Products under any private label or "OEM" arrangements, nor has Target granted
any license of any Target trademarks or servicemarks.
(ii) Target has no Third Party Licenses.
(iii) Target has no agreements, contracts or commitments that
call for fixed and/or contingent payments or expenditures by or to Target
(including, without limitation, any advertising or revenue sharing arrangement).
(iv) Target has no outstanding sales or advertising contract,
commitment or proposal (including, without limitation, insertion orders,
slotting agreements or other agreements under which Target has allowed third
parties to advertise on or otherwise be included in Target's World Wide Web
sites).
(v) Target has no outstanding agreements, contracts or
commitments with officers, employees, agents, consultants, advisors, salesmen,
sales representatives, distributors or dealers that are not cancelable by
Target "at will" and without liability, penalty or premium.
(vi) Target has no employment, independent contractor or similar
agreement, contract or commitment that is not terminable on thirty (30) days'
notice or less without penalty, liability or premium of any type, including,
without limitation, severance or termination pay.
(vii) Target has no currently effective collective bargaining or
union agreements, contracts or commitments.
(viii) Target is not restricted by agreement from competing with
any person or from carrying on its business anywhere in the world.
(ix) Target has not guaranteed any obligations of other persons
or made any agreements to acquire or guarantee any obligations of other persons.
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(x) Target has no outstanding loan or advance to any person;
nor is it party to any line of credit, standby financing, revolving credit or
other similar financing arrangement of any sort which would permit the
borrowing by Target of any sum.
(xi) Target has no agreements pursuant to which Target has
agreed to manufacture for, supply to or distribute to any third party any
Target Products or Target Components.
True and correct copies of each document or instrument listed on the
Target Disclosure Schedule pursuant to this Section 3.11(a) (the "MATERIAL
CONTRACTS") have been provided to Acquiror or its representatives.
(b) All of the Material Contracts listed on the Target Disclosure
Schedule are valid, binding, in full force and effect, and enforceable by
Target in accordance with their respective terms. No Material Contract contains
any liquidated damages, penalty or similar provision. To the knowledge of
Target, no party to any such Material Contract intends to cancel, withdraw,
modify or amend such contract, agreement or arrangement.
(c) Target is not in default under or in breach or violation of,
nor, to Target's knowledge, is there any valid basis for any claim of default
by Target under, or breach or violation by Target of, any material provision of
any Material Contract. To Target's knowledge, no other party is in default
under or in breach or violation of, nor is there any valid basis for any claim
of default by any other party under or any breach or violation by any other
party of, any Material Contract.
(d) Except as specifically indicated on the Target Disclosure
Schedule, none of the Material Contracts provides for indemnification by Target
of any third party, except in the ordinary course and consistent with normal
commercial practice for businesses of its type. No claims have been made or
threatened that would require indemnification by Target, and Target has not
paid any amounts to indemnify any third party as a result of indemnification
requirements of any kind.
Section 3.12 Orders, Commitments and Returns. All accepted advertising
arrangements entered into by Target, and all material agreements, contracts, or
commitments for the purchase of supplies by Target, were made in the ordinary
course of business. There are no oral contracts or arrangements for the sale of
advertising or any other product or service by Target.
Section 3.13 Compliance With Law. Target and the operation of its
business are in compliance in all material respects with all applicable laws
and regulations material to the operation of its business. Neither Target nor,
to Target's knowledge, any of its employees has directly or indirectly paid or
delivered any fee, commission or other sum of money or item of property, however
characterized, to any finder, agent, government official or other party in the
United States or any other country, that was or is in violation of any federal,
state, or local statute or law or of any statute or law of any other country
having jurisdiction. Target has not participated directly or indirectly in any
boycotts or other similar practices affecting any of its
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customers. Target has complied in all material respects at all times with
any and all applicable federal, state and foreign laws, rules, regulations,
proclamations and orders relating to the importation or exportation of its
products except for such noncompliances as would not in the aggregate reasonably
be expected to have a Material Adverse Effect.
Section 3.14 Labor Difficulties; No Discrimination.
(a) Target is not engaged in any unfair labor practice and is not in
material violation of any applicable laws respecting employment and employment
practices, terms and conditions of employment, and wages and hours. There is no
unfair labor practice complaint against Target actually pending or, to the
knowledge of Target, threatened before the National Labor Relations Board. There
is no strike, labor dispute, slowdown, or stoppage actually pending or, to the
knowledge of Target, threatened against Target. To the knowledge of Target, no
union organizing activities are taking place with respect to the business of
Target. No grievance, nor any arbitration proceeding arising out of or under any
collective bargaining agreement is pending and, to the knowledge of Target, no
claims therefor exist. No collective bargaining agreement that is binding on
Target restricts it from relocating or closing any of its operations. Target has
not experienced any material work stoppage or other material labor difficulty.
(b) There is and has not been any claim against Target or its
officers or employees, or to Target's knowledge, threatened against Target or
its officers or employees, based on actual or alleged race, age, sex, disability
or other harassment or discrimination, or similar tortious conduct, or based on
actual or alleged breach of contract with respect to any person's employment by
Target, nor, to the knowledge of Target, is there any basis for any such claim.
(c) There are no pending claims against Target or any of its
Subsidiaries under any workers compensation plan or policy or for long term
disability. Neither Target nor any of its subsidiaries has any material
obligations under COBRA with respect to any former employees or qualifying
beneficiaries thereunder. There are no proceedings pending or, to the knowledge
of Target, threatened, between Target and any of its employees, which
proceedings have or could reasonably be expected to have a Material Adverse
Effect on Target.
Section 3.15 Trade Regulation. All of the prices charged by Target in
connection with the marketing or sale of any products or services have been in
compliance with all applicable laws and regulations. No claims have been
communicated or threatened in writing against Target with respect to wrongful
termination of any dealer, distributor or any other marketing entity,
discriminatory pricing, price fixing, unfair competition, false advertising, or
any other violation of any laws or regulations relating to anti-competitive
practices or unfair trade practices of any kind, and to Target's knowledge, no
specific situation, set of facts, or occurrence provides any basis for any such
claim against Target.
Section 3.16 Insider Transactions. To the knowledge of Target, no
affiliate ("AFFILIATE") as defined in Rule 12b-2 under the Securities Exchange
Act of 1934, as amended (the "EXCHANGE ACT") of Target has any interest in any
equipment or other property, real or personal, tangible or intangible of Target,
including, without limitation, any Target Proprietary
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Rights or any creditor, supplier, customer, manufacturer, agent, representative,
or distributor of Target Products; provided, however, that no such Affiliate or
other person shall be deemed to have such an interest solely by virtue of the
ownership of less than 1% of the outstanding stock or debt securities of any
publicly-held company, the stock or debt securities of which are traded on a
recognized stock exchange or quoted on the National Association of Securities
Dealers Automated Quotation System.
Section 3.17 Employees, Independent Contractors and Consultants. The
Target Disclosure Schedule lists all past and all currently effective written or
oral consulting, independent contractor and/or employment agreements and other
material agreements concluded with individual employees, independent contractors
or consultants to which Target is a party. True and correct copies of all such
written agreements have been provided to Acquiror or its representatives. All
independent contractors have been properly classified as independent contractors
for the purposes of federal and applicable state tax laws, laws applicable to
employee benefits and other applicable law. All salaries and wages paid by
Target are in compliance in all material respects with applicable federal, state
and local laws. Also shown on the Target Disclosure Schedule are the names,
positions and salaries or rates of pay, including bonuses, of all persons
presently employed by Target.
Section 3.18 Insurance. The Target Disclosure Schedule contains a list of
the principal policies of fire, liability and other forms of insurance currently
or previously held by Target, and all claims made by Target under such policies.
To the knowledge of Target, Target has not done anything, either by way of
action or inaction, that might invalidate such policies in whole or in part.
There is no claim pending under any of such policies or bonds as to which
coverage has been questioned, denied or disputed by the underwriters of such
policies or bonds. All premiums due and payable under all such policies and
bonds have been paid and Target is otherwise in compliance with the terms of
such policies and bonds in all material respects. Target has no knowledge of any
threatened termination of, or material premium increase with respect to, any of
such policies.
Section 3.19 Accounts Receivable. Subject to any reserves set forth in
the Most Recent Balance Sheet, the accounts receivable shown on the Most Recent
Balance Sheet represent and will represent bona fide claims against debtors for
sales and other charges, and are not subject to discount except for normal cash
and immaterial trade discounts. The amount carried for doubtful accounts and
allowances disclosed in the Most Recent Balance Sheet is sufficient to provide
for any losses which may be sustained on realization of the receivables.
Section 3.20 Litigation. There is no private or governmental action,
suit, proceeding, claim, arbitration or investigation pending before any agency,
court or tribunal, foreign or domestic, or, to the knowledge of Target,
threatened against Target or any of its properties or any of its officers or
directors (in their capacities as such). There is no judgment, decree or order
against Target, or, to the knowledge of Target, any of its directors or
officers (in their capacities as such). To Target's knowledge, no circumstances
exist that could reasonably be expected to result in a claim against Target as
a result of the conduct of Target's business (including, without limitation,
any claim of infringement of any intellectual property right). The matters
described in
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this Section 3.20 include, but are not limited to, those arising under any
applicable federal, state and local laws, regulations and agency interpretations
of the same relating to the operation of sweepstakes, contests and similar
events, or relating to the collection and use of user information gathered in
the course of the Company's operations.
Section 3.21 Governmental Authorizations and Regulations. Target has
obtained each federal, state, county, local or foreign governmental consent,
license, permit, grant, or other authorization of a Governmental Entity (i)
pursuant to which Target currently operates or holds any interest in any of its
properties or (ii) that is required for the operation of Target's business or
the holding of any such interest, and all of such authorizations are in full
force and effect, except when the failure to obtain such authorization could not
be reasonably expected to have a Material Adverse Effect and does not relate to
the operation of sweepstakes, contests and similar events or the collection and
use of user information gathered in the course of the Company's operations.
Section 3.22 Subsidiaries. Target has no Subsidiaries. Target does not
own or control (directly or indirectly) any capital stock, bonds or other
securities of, and does not have any proprietary interest in, any other
corporation, general or limited partnership, firm, association or business
organization, entity or enterprise, and Target does not control (directly or
indirectly) the management or policies of any other corporation, partnership,
firm, association or business organization, entity or enterprise.
Section 3.23 Compliance with Environmental Requirements. Target has
obtained all permits, licenses and other authorizations which are required under
federal, state and local laws applicable to Target and relating to pollution or
protection of the environment, including laws or provisions relating to
emissions, discharges, releases or threatened releases of pollutants,
contaminants, or hazardous or toxic materials, substances, or wastes into air,
surface water, groundwater, or land, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport, or
handling of pollutants, contaminants or hazardous or toxic materials,
substances, or wastes or which are intended to assure the safety of employees,
workers or other persons, except where the failure to obtain such authorizations
could not be reasonably expected to have a Material Adverse Effect. Target is in
compliance in all material respects with all terms and conditions of all such
permits, licenses and authorizations. There are no conditions, circumstances,
activities, practices, incidents, or actions known to Target which could
reasonably be expected to form the basis of any claim, action, suit, proceeding,
hearing, or investigation of, by, against or relating to Target, based on or
related to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport, or handling, or the emission, discharge, release or
threatened release into the environment, of any pollutant, contaminant, or
hazardous or toxic substance, material or waste, or relating to the safety of
employees, workers or other persons.
Section 3.24 Corporate Documents. Target has furnished to Acquiror or its
representatives: (a) copies of its Certificate of Incorporation and Bylaws, as
amended to date; (b) its minute book containing consents, actions, and meetings
of the stockholders, the board of directors and any committees thereof; (c) all
material permits, orders, and consents issued by any regulatory agency with
respect to Target, or any securities of Target, and all applications for such
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permits, orders, and consents; and (d) the stock transfer books of Target
setting forth all transfers of any capital stock. The corporate minute books,
stock certificate books, stock registers and other corporate records of Target
are complete and accurate, and the signatures appearing on all documents
contained therein are the true or facsimile signatures of the persons purporting
to have signed the same.
Section 3.25 No Brokers. Except for the brokers' fees described on the
Target Disclosure Schedule, neither Target nor, to Target's knowledge, any
Target stockholder is obligated for the payment of fees or expenses of any
broker or finder in connection with the origin, negotiation or execution of this
Agreement or the other Transaction Documents or in connection with any
transaction contemplated hereby or thereby.
Section 3.26 Pooling of Interests. To Target's knowledge, neither Target
nor any of its Affiliates has, through the date of this Agreement, taken or
agreed to take any action which would prevent Acquiror from accounting for the
business combination to be effected by the Merger as a pooling of interests.
Section 3.27 Advertisers, Customers and Suppliers. As of the date hereof,
no advertiser or other customer which individually accounted for more than 2% of
Target's gross revenues during the 12-month period preceding the date hereof,
and no material supplier of Target, has canceled or otherwise terminated prior
to the expiration of the contract term, or made any written threat to Target to
cancel or otherwise terminate its relationship with Target, or has at any time
on or after December 31, 1997 decreased materially its services or supplies to
Target in the case of any such supplier, or its usage of the services or
products of Target in the case of such customer, and to Target's knowledge, no
such supplier or customer intends to cancel or otherwise terminate its
contractual relationship with Target or to decrease materially its services or
supplies to Target or its usage of the services or products of Target, as the
case may be. Target has not knowingly (i) breached, so as to provide a benefit
to Target that was not intended by the parties, any agreement with, or (ii)
engaged in any fraudulent conduct with respect to, any customer or supplier or
Target.
Section 3.28 Target Action. The Board of Directors of Target, by
unanimous written consent or at a meeting duly called and held, has by the
unanimous vote of all directors (i) determined that the Merger is fair and in
the best interests of Target and its stockholders, (ii) approved the Merger and
this Agreement in accordance with the provisions of Delaware Law, and
(iii) directed that this Agreement and the Merger be submitted to Target
stockholders for their approval and resolved to recommend that Target
stockholders vote in favor of the approval of this Agreement and the Merger.
Section 3.29 Offers. Target has suspended or terminated, and has the
legal right to terminate or suspend, all negotiations and discussions of
Acquisition Transactions (as defined in Section 5.6) with parties other than
Acquiror.
Section 3.30 Sweepstakes and Privacy Laws and Policies Compliance. The
Company has complied with all applicable federal, state and local laws,
regulations and agency interpretations of the same relating to the operation of
sweepstakes, contests and similar events,
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and relating to the collection and use of user information gathered in the
course of the Company's operations, and the Company has at all times complied
with all rules, policies and procedures established by the Company from time to
time with respect to the foregoing.
Section 3.31 Disclosure. No statements by Target contained in this
Agreement, its exhibits and schedules nor in any of the certificates or
documents, including any of the Transaction Documents, delivered or required to
be delivered by Target to Acquiror or Sub under this Agreement contains any
untrue statement of a material fact or omits to state a material fact necessary
in order to make the statements contained herein or therein not misleading in
light of the circumstances under which they were made. Target has disclosed to
Acquiror all material information of which it is aware relating specifically to
the operations and business of Target as of the date of this Agreement or the
transactions contemplated by this Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF ACQUIROR AND SUB
Acquiror and Sub jointly and severally represent and warrant to Target
that, except as disclosed in a filing with the Securities and Exchange
Commission (the "COMMISSION"), the statements contained in this Article IV are
true and correct.
Section 4.1 Organization of Acquiror and Sub. Each of Acquiror and its
Subsidiaries, including Sub, is a corporation duly organized, validly existing
and in good standing under the laws of its respective jurisdiction of
incorporation and has all requisite corporate power to own, lease and operate
its property and to carry on its business as now being conducted and is duly
qualified or licensed to do business and is in good standing in each
jurisdiction in which the failure to be so qualified or licensed would have a
Material Adverse Effect on Acquiror or Sub. The authorized capital stock of Sub
consists of 1,000 shares of Common Stock, all of which are issued and
outstanding and are held by Acquiror.
Section 4.2 Valid Issuance of Acquiror Common Stock. The shares of
Acquiror's Common Stock, par value of $0.00033 per share ("ACQUIROR COMMON
STOCK"), to be issued pursuant to the Merger will be duly authorized, validly
issued, fully paid, and non-assessable and issued in compliance with all
applicable federal or state securities laws.
Section 4.3 Authority; No Conflict; Required Filings and Consents.
(a) Each of Acquiror and Sub has all requisite corporate power and
authority to enter into this Agreement and the other Transaction Documents to
which it is or will become a party and to consummate the transactions
contemplated by this Agreement and such Transaction Documents. The execution and
delivery of this Agreement and such Transaction Documents and the consummation
of the transactions contemplated by this Agreement and such Transaction
Documents have been duly authorized by all necessary corporate action on the
part of Acquiror and Sub. This Agreement has been and such Transaction Documents
have been or, to the extent not executed as of the date hereof, will be duly
executed and delivered by Acquiror and Sub. This Agreement and each of the
Transaction Documents to which Acquiror or Sub is a party
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constitutes, and each of the Transaction Documents to which Acquiror or
Sub will become a party when executed and delivered by Acquiror or Sub will
constitute, the valid and binding obligation of Acquiror or Sub, enforceable
against Acquiror or Sub, as the case may be, in accordance with its terms,
except to the extent that enforceability may be limited by applicable
bankruptcy, reorganization, insolvency, moratorium or other laws affecting the
enforcement of creditors' rights generally and by general principles of equity,
regardless of whether such enforceability is considered
(b) The execution and delivery by Acquiror or Sub of this Agreement
and the Transaction Documents to which it is or will become a party does not,
and consummation of the transactions contemplated by this Agreement or the
Transaction Documents to which it is or will become a party will not, (i)
conflict with, or result in any violation or breach of any provision of the
Articles of Incorporation or Bylaws of Acquiror or Sub, (ii) result in any
violation or breach of, or constitute (with or without notice or lapse of time,
or both) a default (or give rise to a right of termination, cancellation or
acceleration of any obligation or loss of any material benefit) under any of the
terms, conditions or provisions of any note, bond, mortgage, indenture, lease,
contract or other agreement, instrument or obligation to which Acquiror or Sub
is a party or by which either of them or any of their properties or assets may
be bound, or (iii) conflict or violate any permit, concession, franchise,
license, judgment, order, decree, statute, law, ordinance, rule or regulation
applicable to Acquiror or Sub or any of their properties or assets, except in
the case of (ii) and (iii) for any such conflicts, violations, defaults,
terminations, cancellations or accelerations which would not have a Material
Adverse Effect on Acquiror and its Subsidiaries, taken as a whole.
(c) Neither the execution and delivery of this Agreement by Acquiror
or Sub or the Transaction Documents to which Acquiror or Sub is or will become a
party or the consummation of the transactions contemplated hereby or thereby
will require any consent, approval, order or authorization of, or registration,
declaration or filing with, any Governmental Entity, except for (i) the filing
of the Certificate of Merger with the Delaware Secretary of State, (ii) such
consents, approvals, orders, authorizations, registrations, declarations and
filings as may be required under applicable federal and state securities laws
and the laws of any foreign country, and (iii) such other consents,
authorizations, filings, approvals and registrations which, if not obtained or
made, could be expected to have a Material Adverse Effect on Acquiror and its
Subsidiaries, taken as a whole.
Section 4.4 Commission Filings; Financial Statements.
(a) Acquiror has filed with the Commission and made available to
Target or its representatives all forms, reports and documents required to be
filed by Acquiror with the Commission since December 31, 1996 (collectively, the
"ACQUIROR COMMISSION REPORTS"). The Acquiror Commission Reports (i) at the time
filed, complied in all material respects with the applicable requirements of the
Securities Act of 1933, as amended, (the "SECURITIES ACT"), and the Exchange
Act, as the case may be, and (ii) did not at the time they were filed (or if
amended or superseded by a filing prior to the date of this Agreement, then on
the date of such filing) contain any untrue statement of a material fact or omit
to state a material fact required to be
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stated in such Acquiror Commission Reports or necessary in order to make the
statements in such Acquiror Commission Reports, in the light of the
circumstances under which they were made, not misleading.
(b) Each of the financial statements (including, in each case, any
related notes) contained in the Acquiror Commission Reports, including any
Acquiror Commission Reports filed after the date of this Agreement until the
Closing, complied or will comply as to form in all material respects with the
applicable published rules and regulations of the Commission with respect
thereto, was prepared in accordance with generally accepted accounting
principles applied on a consistent basis throughout the periods involved (except
as may be indicated in the notes to such financial statements or, in the case of
unaudited statements, as permitted by Form 10-Q of the Commission) and fairly
presented the consolidated financial position of Acquiror and its Subsidiaries
as at the respective dates and the consolidated results of its operations and
cash flows for the periods indicated, except that the unaudited interim
financial statements were or are subject to normal and recurring year-end
adjustments which were not or are not expected to be material in amount.
Section 4.5 Compliance with Laws. Acquiror has complied with, is not in
violation of, and has not received any notices of violation with respect to, any
federal, state or local statute, law or regulation with respect to the conduct
of its business, or the ownership or operation of its business, except for
failures to comply or violations which would not have a Material Adverse Effect
on Acquiror and its Subsidiaries, taken as a whole.
Section 4.6 Pooling of Interests. To its knowledge, neither Acquiror nor
any of its affiliates has taken or agreed to take any action which would prevent
Acquiror from accounting for the business combination to be effected by the
Merger as a pooling of interests.
Section 4.7 Interim Operations of Sub. Sub was formed solely for the
purpose of engaging in the transactions contemplated by this Agreement, has
engaged in no other business activities and has conducted its operations only as
contemplated by this Agreement.
Section 4.8 Shareholders Consent. No consent or approval of the
shareholders of Acquiror is required or necessary for Acquiror to enter into
this Agreement or the Transaction Documents or to consummate the transactions
contemplated hereby and thereby.
Section 4.9 Absence of Certain Changes or Events. Since June 30, 1998,
Acquiror and its Subsidiaries have conducted their business in the ordinary
course and, since such date, there has not been any Material Adverse Change with
respect to Acquiror and any of its Subsidiaries, taken as a whole.
Section 4.10 Disclosure. No statements by Acquiror contained in this
Agreement, its exhibits and schedules, or any of the certificates or documents,
including any of the Transaction Documents, required to be delivered by Acquiror
or Sub to Target under this Agreement contain any untrue statement of material
fact or omits to state a material fact necessary in order to make the statements
contained herein or therein not misleading in light of the circumstances under
which they were made.
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ARTICLE V
PRECLOSING COVENANTS OF TARGET
Section 5.1 Approval of Target Stockholders. Prior to the Closing Date
and at the earliest practicable date following the date hereof, Target will
solicit written consents from its stockholders seeking, or hold a stockholders'
meeting (the "TARGET STOCKHOLDERS' MEETING") for the purpose of seeking,
approval of this Agreement, the Merger and related matters. If Target holds a
stockholders' meeting, the Board of Directors of Target will solicit proxies
from Target's stockholders to vote such stockholders' shares at the Target
Stockholders' Meeting. In soliciting such written consent or proxies, the Board
of Directors of Target will (subject to satisfying its fiduciary obligations to
the stockholders of Target) recommend to the stockholders of Target that they
approve this Agreement and the Merger and shall use its reasonable efforts to
obtain the approval of the stockholders of Target entitled to vote on or consent
to this Agreement and the Merger in accordance with Delaware Law and Target's
Certificate of Incorporation.
Section 5.2 Advice of Changes. Target will promptly advise Acquiror in
writing of any event occurring subsequent to the date of this Agreement which
would render any representation or warranty of Target contained in this
Agreement, if made on or as of the date of such event or the Closing Date,
untrue or inaccurate in any material respect.
Section 5.3 Operation of Business. During the period from the date of
this Agreement and continuing until the earlier of the termination of the
Agreement or the Effective Time, Target agrees (except to the extent that
Acquiror shall otherwise consent in writing), to carry on its business in the
usual, regular and ordinary course in substantially the same manner as
previously conducted, to pay its debts and taxes when due, subject to good faith
disputes over such debts or taxes, to pay or perform other obligations when due,
and, to the extent consistent with such business, use all reasonable efforts
consistent with past practices and policies to preserve intact its present
business organization, keep available the services of its present officers and
key employees andpreserve its relationships with customers, suppliers,
distributors, licensors, licensees, and others having business dealings with it,
to the end that its goodwill and ongoing businesses would be unimpaired at the
Effective Time. Target shall promptly notify Acquiror of any event or occurrence
not in the ordinary course of business of Target. Except as expressly
contemplated by this Agreement, Target shall not, without the prior written
consent of Acquiror:
(a) accelerate, amend or change the period of exercisability or the
vesting schedule of restricted stock granted under any employee stock plan or
agreements or authorize cash payments in exchange for any options granted under
any of such plans except as specifically required by the terms of such plans or
any related agreements or any such agreements in effect as of the date of this
Agreement and disclosed in the Target Disclosure Schedule;
(b) declare or pay any dividends on or make any other distributions
(whether in cash, stock or property) in respect of any of its capital stock, or
split, combine or reclassify any of its capital stock or issue or authorize the
issuance of any other securities in respect of, in lieu of or in substitution
for shares of capital stock of such party, or purchase or otherwise acquire,
- 29 -
directly or indirectly, any shares of its capital stock except from former
employees, directors and consultants in accordance with agreements providing for
the repurchase of shares in connection with any termination of service by such
party;
(c) issue, deliver or sell or authorize or propose the issuance,
delivery or sale of, or purchase or propose the purchase of, any shares of its
capital stock or securities convertible into shares of its capital stock, or
subscriptions, rights, warrants or options to acquire, or other agreements or
commitments of any character obligating it to issue any such shares or other
convertible securities, other than (i) the issuance of (A) shares of Target
Common Stock issuable upon exercise of Target Options or Target Warrants, which
are outstanding on the date of this Agreement or (B) shares of Target Common
Stock issuable upon conversion of shares of Target Preferred Stock or (ii) the
repurchase of shares of Common Stock from terminated employees pursuant to the
terms of outstanding stock restriction or similar agreements;
(d) acquire or agree to acquire by merging or consolidating with, or
by purchasing a substantial equity interest in or substantial portion of the
assets of, or by any other manner, any business or any corporation, partnership
or other business organization or division, or otherwise acquire or agree to
acquire any assets;
(e) sell, lease, license or otherwise dispose of any of its
properties or assets which are material, individually or in the aggregate, to
the business of Target, except in the ordinary course of business;
(f) (i) except as set forth on the Target Disclosure Schedule,
increase or agree to increase the compensation payable or to become payable to
its officers or employees, (ii) except as set forth on the Target Disclosure
Schedule, grant any additional severance or termination pay to, or enter into
any employment or severance agreements with, officers, (iii) grant any severance
or termination pay to, or enter into any employment or severance agreement, with
any non-officer employee, (iv) enter into any collective bargaining agreement,
or (v) establish, adopt, enter into or amend in any material respect any bonus,
profit sharing, thrift, compensation, stock option, restricted stock, pension,
retirement, deferred compensation, employment, termination, severance or other
plan, trust, fund, policy or arrangement for the benefit of any directors,
officers or employees;
(g) revalue any of its assets, including writing down the value of
inventory or writing off notes or accounts receivable;
(h) incur any indebtedness for borrowed money or guarantee any such
indebtedness or issue or sell any debt securities or warrants or rights to
acquire any debt securities or guarantee any debt securities of others;
(i) amend or propose to amend its Certificate of Incorporation or
Bylaws;
(j) incur or commit to incur any capital expenditures in excess of
$20,000 in the aggregate or in excess of $5,000 as to any individual matter;
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(k) lease, license, sell, transfer or encumber or permit to be
encumbered any asset, Target Proprietary Right or other property associated
with the business of Target (including sales or transfers to Affiliates of
Target);
(1) enter into any lease or contract for the purchase or sale of any
property, real or personal except in the ordinary course of business;
(m) fail to maintain its equipment and other assets in good working
condition and repair according to the standards it has maintained up to the date
of this Agreement, subject only to ordinary wear and tear;
(n) change accounting methods;
(o) amend or terminate any material contract, agreement or license to
which it is a party except in the ordinary course of business;
(p) loan any amount to any person or entity, or guaranty or act as a
surety for any obligation;
(q) waive or release any material right or claim, except in the
ordinary course of business;
(r) make or change any Tax or accounting election, change any annual
accounting period, adopt or change any accounting method, file any amended
Return, enter into any closing agreement, settle any Tax claim or assessment
relating to Target, surrender any right to claim refund of Taxes, consent to any
extension or waiver of the limitation period applicable to any Tax claim or
assessment relating to Target, or take any other action or omit to take any
action, if any such action or omission would have the effect of increasing the
Tax liability of Target or Acquiror;
(s) take any action or fail to take any action that would cause there
to be a Material Adverse Change with respect to Target;
(t) enter into any agreement in which the obligation of Target
exceeds $10,000 or shall not terminate or be subject to termination for
convenience within 180 days following execution;
(u) enter into any agreement not in the ordinary course of business
(including without limitation any material licenses to information or databases,
any OEM agreements, any exclusive agreements of any kind, or any agreements
providing for obligations that would extend beyond 180 days of the date of this
Agreement); or
(v) take, or agree in writing or otherwise to take, any of the
actions described in Sections (a) through (u) above, or any action which is
reasonably likely to make any of Target's representations or warranties
contained in this Agreement untrue or incorrect in any material respect on the
date made (to the extent so limited) or as of the Effective Time.
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Section 5.4 Access to Information. Until the Closing, Target shall allow
Acquiror and its agents reasonable free access during normal business hours upon
reasonable notice to its files, books, records, and offices, including, without
limitation, any and all information relating to taxes, commitments, contracts,
leases, licenses, and personal property and financial condition. Until the
Closing, Target shall cause its accountants to cooperate with Acquiror and its
agents in making available all financial information requested, including
without limitation the right to examine all working papers pertaining to all
financial statements prepared or audited by such accountants. No information or
knowledge obtained in any investigation pursuant to this Section shall affect or
be deemed to modify any representation or warranty contained in this Agreement
or its exhibits and schedules. All such access shall be subject to the terms of
the Confidentiality Agreement (as defined in Section 7.1).
Section 5.5 Satisfaction of Conditions Precedent. Target will use its
reasonable best efforts to satisfy or cause to be satisfied all the conditions
precedent which are set forth in Sections 8.1 and 8.2, and Target will use its
reasonable best efforts to cause the transactions contemplated by this Agreement
to be consummated, and, without limiting the generality of the foregoing, to
obtain all consents and authorizations of third parties and to make all filings
with, and give all notices to, third parties which may be necessary or
reasonably required on its part in order to effect the transactions contemplated
by this Agreement. Target shall use its best efforts to obtain any and all
consents necessary with respect to those Material Contracts listed on Schedule
5.5 of the Target Disclosure Schedule in connection with the Merger (the
"MATERIAL CONSENTS").
Section 5.6 Other Negotiations. Following the date hereof and until
termination of this Agreement pursuant to Section 9.1, Target will not (and it
will not permit any of its officers, directors, employees, agents and Affiliates
on its behalf to) take any action to solicit, initiate, seek, encourage or
support any inquiry, proposal or offer from, furnish any information to, or
participate in any negotiations with, any corporation, partnership, person or
other entity or group (other than Acquiror) regarding any acquisition of Target,
any merger or consolidation with or involving Target, or any acquisition of any
material portion of the stock or assets of Target or any material license of
Target Proprietary Rights (any of the foregoing being referred to in this
Agreement as an "ACQUISITION TRANSACTION") or enter into an agreement concerning
any Acquisition Transaction with any party other than Acquiror. If between the
date of this Agreement and the termination of this Agreement pursuant to Section
9.1, Target receives from a third party any offer or indication of interest
regarding any Acquisition Transaction, or any request for information regarding
any Acquisition Transaction, Target shall (i) notify Acquiror immediately
(orally and in writing) of such offer, indication of interest or request,
including the identity of such party and the full terms of any proposal therein,
and (ii) notify such third party of Target's obligations under this Agreement.
ARTICLE VI
PRECLOSING AND OTHER COVENANTS OF ACQUIROR AND SUB
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Section 6.1 Advice of Changes. Acquiror and Sub will promptly
advise Target in writing of any event occurring subsequent to the date of this
Agreement which would render any representation or warranty of Acquiror or Sub
contained in this Agreement, if made on or as of the date of such event or the
Closing Date, untrue or inaccurate in any material respect.
Section 6.2 Reservation of Acquiror Common Stock. Acquiror shall reserve
for issuance, out of its authorized but unissued capital stock, the maximum
number of shares of Acquiror Common Stock as may be issuable upon consummation
of the Merger.
Section 6.3 Satisfaction of Conditions Precedent. Acquiror and Sub will
use their reasonable best efforts to satisfy or cause to be satisfied all the
conditions precedent which are set forth in Sections 8.1 and 8.3, and Acquiror
and Sub will use their reasonable best efforts to cause the transactions
contemplated by this Agreement to be consummated, and, without limiting the
generality of the foregoing, to obtain all consents and authorizations of third
parties and to make all filings with, and give all notices to, third parties
which may be necessary or reasonably required on its part in order to effect the
transactions contemplated hereby.
Section 6.4 Nasdaq National Market Listing. Acquiror shall cause the
shares of Acquiror Common Stock issuable to the stockholders of Target in the
Merger to be authorized for listing on the Nasdaq National Market.
Section 6.5 Stock Options and Warrants.
(a) At the Effective Time, each outstanding Target Option under the
Target Option Plan, whether vested or unvested, shall be assumed by Acquiror and
deemed to constitute an option (a "ACQUIROR OPTION") to acquire, on the same
terms and conditions as were applicable under the Target Option, the same number
of shares of Acquiror Common Stock as the holder of such Target Option would
have been entitled to receive pursuant to the Merger had such holder exercised
such option in full immediately prior to the Effective Time (rounded down to the
nearest whole number), at a price per share (rounded up to the nearest whole
cent) equal to (i) the aggregate exercise price for the shares of Target Common
Stock otherwise purchasable pursuant to such Target Option divided by (ii) the
number of full shares of Acquiror Common Stock deemed purchasable pursuant to
such Acquiror Option in accordance with the foregoing; provided, however, that,
in the case of any Target Option to which Section 422 of the Code applies
("INCENTIVE STOCK OPTIONS"), the option price, the number of shares purchasable
pursuant to such option and the terms and conditions of exercise of such option
shall be determined in order to comply with Section 424(a) of the Code. In
connection with the assumption by Acquiror of the Target Options pursuant to
this Section 6.5(a), Target shall be deemed to have assigned to Acquiror,
effective at the Effective Time, Target's right to repurchase unvested shares of
Target Common Stock issuable upon the exercise of the Target Options or
previously issued upon the exercise of options granted under the Target Option
Plan, in accordance with the terms of the Target Option Plan and the related
stock option agreements and stock purchase agreements entered into under the
Target Option Plan.
(b) As soon as practicable after the Effective Time, Acquiror shall
deliver to the participants in the Target Option Plan appropriate notice setting
forth such participants' rights
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pursuant thereto and the grants pursuant to the Target Option Plan shall
continue in effect on the same terms and conditions (subject to the adjustments
required by this Section 6.5 after giving effect to the Merger). Acquiror shall
comply with the terms of the Target Option Plan and use best efforts to ensure,
to the extent required by, and subject to the provisions of, such Target Option
Plan and Sections 422 and 424(a) of the Code, that Target Options which
qualified as incentive stock options prior the Effective Time continue to
qualify as incentive stock options after the Effective Time.
(c) Acquiror shall take all corporate action necessary to reserve for
issuance a sufficient number of shares of Acquiror Common Stock for delivery
upon exercise of Target Options assumed in accordance with this Section 6.5. No
later than the fifth business day after the Closing Date, Acquiror shall file a
registration statement on Form S-8 (or any successor or other appropriate forms)
under the Securities Act or another appropriate form with respect to the shares
of Acquiror Common Stock subject to such options and shall use its best efforts
to maintain the effectiveness of such registration statement or registration
statements (and maintain the current status of the prospectus or prospectuses
contained therein) for so long as such options remain outstanding.
(d) Each Target Warrant, to the extent outstanding at the Effective
Time, whether or not exercisable and whether or not vested at the Effective
Time, shall remain outstanding at the Effective Time. At the Effective Time,
Target Warrants shall, by virtue of the Merger and without any further action on
the part of Target or the holder of any of Target Warrants (unless further
action may be required by the terms of any of Target Warrants), be assumed by
Acquiror and each Target Warrant assumed by Acquiror shall be exercisable upon
the same terms and conditions as under the applicable warrant agreements with
respect to such Target Warrants, except that (A) each such Target Warrant shall
be exercisable for that whole number of shares of Acquiror Common Stock (rounded
down to the nearest whole share) into which the number of shares of Target
Common Stock subject to such Target Warrant would be converted under Section
2.1(c), and (B) the exercise price per share of Acquiror Common Stock shall be
an amount equal to the exercise price per share of Target Common Stock subject
to such Target Warrant in effect immediately prior to the Effective Time divided
by the applicable Exchange Ratio (the exercise price per share, so determined,
being rounded to the nearest full cent). From and after the Effective Time, all
references to Target in the warrant agreements underlying Target Warrants shall
be deemed to refer to Acquiror. Acquiror further agrees that, notwithstanding
any other term of this Section 6.5(d) to the contrary, if required under the
terms of Target Warrants or if otherwise appropriate under the terms of Target
Warrants, it will execute a supplemental agreement with the holders of Target
Warrants to effectuate the foregoing. No payment shall be made for fractional
shares. Acquiror shall (i) on or prior to the Effective Time, reserve for
issuance the number of shares of Acquiror Common Stock that will become subject
to warrants to purchase Acquiror Common Stock ("ACQUIROR WARRANTS") pursuant to
this Section 6.5(d), (ii) from and after the Effective Time, upon exercise of
the Acquiror Warrants in accordance with the terms thereof, make available for
issuance all shares of Acquiror Common Stock covered thereby and (iii) as
promptly as practicable following the Effective Time, issue to each holder of an
outstanding Target Warrant a document evidencing the foregoing assumption by
Acquiror.
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Section 6.6 Registration of Shares Issued in the Merger.
(a) Registrable Shares. For purposes of this Agreement, "REGISTRABLE
SHARES" shall mean the shares of Acquiror Common Stock issued in the Merger,
including any and all Escrow Shares, and the shares of Acquiror Common Stock
issuable upon the exercise of the Target Warrants assumed by Acquiror pursuant
to Section 6.5(d), but excluding shares of Acquiror Common Stock issued in the
Merger or issuable upon the exercise of the Target Warrants that have been sold
or otherwise transferred by the stockholders of Target who initially received
such shares in the Merger or by the holder of the Target Warrants prior to the
effective date of the Registration Statement (as defined below) (collectively,
the "HOLDERS"); provided however, that a distribution of shares of Acquiror
Common Stock issued in the Merger without additional consideration, to
underlying beneficial owners (such as the general and limited partners,
stockholders or trust beneficiaries of a Holder) shall not be deemed such a sale
or transfer for purposes of this Section 6.6 and such underlying beneficial
owners shall be entitled to the same rights under this Section 6.6 as the
initial Holder from which the Registrable Shares were received and shall be
deemed a Holder for the purposes of this Section 6.6.
(b) Required Registration. No later than the fifth business day
following the Effective Time, Acquiror shall prepare and file with the
Commission a registration statement on Form S-3 (or such successor or other
appropriate form) under the Securities Act with respect to the Registrable
Shares (the "REGISTRATION STATEMENT") and shall effect all such registrations,
qualifications and compliances (including, without limitation, obtaining
appropriate qualifications under applicable state securities or "blue sky" laws
and compliance with any other applicable governmental requirements or
regulations) as any selling Holder may reasonably request and that would permit
or facilitate the sale of all Registrable Shares (provided however that Acquiror
shall not be required in connection therewith to qualify to do business or to
file a general consent to service of process in any such state or jurisdiction),
and in each case Acquiror will use its best efforts to cause such Registration
Statement and all other such registrations, qualifications and compliances to
become effective as soon as practicable thereafter.
(c) Effectiveness; Suspension Right.
(i) Acquiror will use its best efforts to maintain the
effectiveness of the Registration Statement and other applicable registrations,
qualifications and compliances for up to one (1) year from the Closing Date (the
"REGISTRATION EFFECTIVE PERIOD"), and from time to time will amend or supplement
the Registration Statement and the prospectus contained therein as and to the
extent necessary to comply with the Securities Act, the Exchange Act and any
applicable state securities statute or regulation, subject to the following
limitations and qualifications.
(ii) Following the date on which the Registration Statement is
first declared effective, the Holders will be permitted (subject in all cases to
the terms of the Stockholders Agreements and to Section 6.7 below) to offer and
sell Registrable Shares during the Registration Effective Period in the manner
described in the Registration Statement provided that the Registration Statement
remains effective and has not been suspended.
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(iii) Notwithstanding any other provision of this Section 6.6 but
subject to Section 6.7, Acquiror shall have the right at any time to require
that all Holders suspend further open market offers and sales of Registrable
Shares whenever, and for so long as, in the reasonable judgment of Acquiror
after consultation with counsel there is or may be in existence material
undisclosed information or events with respect to Acquiror (the "SUSPENSION
RIGHT"). In the event Acquiror exercises the Suspension Right, such suspension
will continue for the period of time reasonably necessary for disclosure to
occur at a time that is not detrimental to Acquiror and its shareholders or
until such time as the information or event is no longer material, each as
determined in good faith by Acquiror after consultation with counsel. Acquiror
will promptly give the Holders notice of any such suspension and will use all
reasonable efforts to minimize the length of the suspension.
(d) Expenses. The costs and expenses to be borne by Acquiror for
purposes of this Section 6.6 shall include, without limitation, printing
expenses (including a reasonable number of prospectuses for circulation by the
selling Holders), legal fees and disbursements of counsel for Acquiror, "blue
sky" expenses, accounting fees and filing fees, but shall not include
underwriting commissions or similar charges, or any legal fees and disbursements
of counsel for the selling Holders.
(e) Indemnification.
(i) To the extent permitted by law, Acquiror will indemnify and
hold harmless each Holder, any underwriter (as defined in the Securities Act)
for such Holder, its officers, directors, stockholders or partners and each
person, if any, who controls such Holder or underwriter within the meaning of
the Securities Act or the Exchange Act, against any losses, claims, damages, or
liabilities (joint or several) to which they may become subject under the
Securities Act, the Exchange Act or other federal or state law, insofar as such
losses, claims, damages, or liabilities (or actions in respect thereof) arise
out of or are based upon any of the following statements, omissions or
violations (collectively a "VIOLATION"): (A) any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement,
including any preliminary prospectus or final prospectus contained therein or
any amendments or supplements thereto, (B) the omission or alleged omission to
state therein a material fact required to be stated therein, or necessary to
make the statements therein not misleading, or (C) any violation or alleged
violation by Acquiror of the Securities Act, the Exchange Act, any state
securities law or any rule or regulation promulgated under the Securities Act,
the Exchange Act or any state securities law; and Acquiror will pay to each such
Holder (and its officers, directors, stockholders or partners), underwriter or
controlling person, any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability, or action; provided, however, that the indemnity agreement contained
in this Section 6.6(e)(i) shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability, or action if such settlement is effected
without the consent of Acquiror; nor shall Acquiror be liable in any such case
for any such loss, claim, damage, liability, or action to the extent that it
arises out of or is based upon (a) a Violation which occurs in reliance upon and
in conformity with written information furnished expressly for use in the
Registration Statement by any such Holder, or (b) a Violation that would not
have occurred if such Holder had delivered to
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the purchaser the version of the Prospectus most recently provided by Acquiror
to the Holder as of the date of such sale.
(ii) To the extent permitted by law, each selling Holder will
indemnify and hold harmless Acquiror, each of its directors, each of its
officers who has signed the Registration Statement, each person, if any, who
controls Acquiror within the meaning of the Securities Act, any underwriter, any
other Holder selling securities pursuant to the Registration Statement and any
controlling person of any such underwriter or other Holder, against any losses,
claims, damages, or liabilities (joint or several) to which any of the foregoing
persons may become subject, under the Securities Act, the Exchange Act or other
federal or state law, insofar as such losses, claims, damages, or liabilities
(or actions in respect thereto) arise out of or are based upon any Violation
(which includes without limitation the failure of the Holder to comply with the
prospectus delivery requirements under the Securities Act, and the failure of
the Holder to deliver the most current prospectus provided by Acquiror prior to
such sale), in each case to the extent (and only to the extent) that such
Violation occurs in reliance upon and in conformity with written information
furnished by such Holder expressly for use in the Registration Statement or such
Violation is caused by the Holder's failure to deliver to the purchaser of the
Holder's Registrable Shares a prospectus (or amendment or supplement thereto)
that had been made available to the Holder by Acquiror; and each such Holder
will pay any legal or other expenses reasonably incurred by any person intended
to be indemnified pursuant to this Section 6.6(e)(ii) in connection with
investigating or defending any such loss, claim, damage, liability, or action;
provided, however, that the indemnity agreement contained in this Section
6.6(e)(ii) shall not apply to amounts paid in settlement of any such loss,
claim, damage, liability or action if such settlement is effected without the
consent of the Holder, which consent shall not be unreasonably withheld. The
aggregate indemnification and contribution liability of each Holder under this
Section 6.6(e)(ii) shall not exceed the net proceeds received by such Holder in
connection with sale of shares pursuant to the Registration Statement.
(iii) Each person entitled to indemnification under this Section
6.6(e) (the "INDEMNIFIED PARTY") shall give notice to the party required to
provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may be
sought and shall permit the Indemnifying Party to assume the defense of any such
claim and any litigation resulting therefrom, provided that counsel for the
Indemnifying Party who conducts the defense of such claim or any litigation
resulting therefrom shall be approved by the Indemnified Party (whose approval
shall not unreasonably be withheld), and the Indemnified Party may participate
in such defense at such party's expense, and provided further that the failure
of any Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Section 6.6 unless the
Indemnifying Party is materially prejudiced thereby. No Indemnifying Party, in
the defense of any such claim or litigation, shall (except with the consent of
each Indemnified Party) consent to entry of any judgment or enter into any
settlement that does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such Indemnified Party of a release from all
liability in respect to such claim or litigation. Each Indemnified Party shall
furnish such information regarding itself or the claim in question as an
Indemnifying Party may reasonably request in
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writing and as shall be reasonably required in connection with the defense of
such claim and litigation resulting therefrom.
(iv) To the extent that the indemnification provided for in this
Section 6.6(e) is held by a court of competent jurisdiction to be unavailable to
an Indemnified Party with respect to any loss, liability, claim, damage or
expense referred to herein, then the Indemnifying Party, in lieu of indemnifying
such Indemnified Party hereunder, shall contribute to the amount paid or payable
by such Indemnified Party as a result of such loss, liability, claim, damage or
expense in such proportion as is appropriate to reflect the relative fault of
the Indemnifying Party on the one hand and of the Indemnified Party on the other
in connection with the statements or omissions which resulted in such loss,
liability, claim, damage or expense, as well as any other relevant equitable
considerations. The relative fault of the Indemnifying Party and of the
Indemnified Party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Indemnifying Party or by the Indemnified Party and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
Section 6.7 Procedures for Sale of Shares Under Registration Statement.
(a) Notice and Approval. If any Holder shall propose to sell any
Registrable Shares pursuant to the Registration Statement, it shall notify
Acquiror of its intent to do so (including the proposed manner and timing of all
sales) at least two (2) full trading days prior to such sale, and the provision
of such notice to Acquiror shall conclusively be deemed to reestablish and
reconfirm an agreement by such Holder to comply with the registration provisions
set forth in this Agreement. Unless otherwise specified in such notice, such
notice shall be deemed to constitute a representation that any information
previously supplied by such Holder expressly for inclusion in the Registration
Statement (as the same may have been superseded by subsequent such information)
is accurate as of the date of such notice. At any time within such two (2)
trading-day period, Acquiror may delay, consistent with Acquiror's obligations
under Section 6.6(c)(iii) to minimize any delay, the resale by such Holder of
any Registrable Shares pursuant to the Registration Statement only if a sale
pursuant to the Registration Statement in its then current form without the
addition of material, non-public information about Acquiror could reasonably
constitute a violation of the federal securities laws; provided, however, that
in order to exercise this right, Acquiror must deliver a certificate in writing
to the Holder to such effect. Notwithstanding the foregoing, Acquiror will
ensure that in any event the Holders shall have at least twenty (20) trading
days (prorated for partial quarters) available to sell Registrable Shares during
each calendar quarter (or portion thereof) during the Registration Effective
Period.
(b) Delivery of Prospectus. For any offer or sale of any of the
Registrable Shares by a Holder in a transaction that is not exempt under the
Securities Act, the Holder, in addition to complying with any other federal
securities laws, shall deliver a copy of the final prospectus (or amendment of
or supplement to such prospectus) of Acquiror covering the
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Registrable Shares in the form furnished to the Holder by Acquiror to the
purchaser of any of the Registrable Shares on or before the settlement date for
the purchase of such Registrable Shares.
(c) Copies of Prospectuses. Subject to the provisions of this Section
6.7, when a Holder is entitled to sell and gives notice of its intent to sell
Registrable Shares pursuant to the Registration Statement, Acquiror shall,
within two (2) trading days following the request, furnish to such Holder a
reasonable number of copies of a supplement to or an amendment of such
prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such Registrable Shares, such prospectus shall not as of the date
of delivery to the Holder include an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading or incomplete in the light of the
circumstances then existing.
Section 6.8 Certain Employee Benefit Matters. From and after the
Effective Time, employees of Target at the Effective Time will be provided with
employee benefits by the Surviving Corporation or Acquiror which in the
aggregate are no less favorable to such employees than those provided from time
to time by Acquiror to similarly situated employees. If any employee of Target
becomes a participant in any employee benefit plan, program, policy or
arrangement of Acquiror, such employee shall be given credit for all service
prior to the Effective Time with Target to the extent permissible under such
plan, program, policy or arrangement. Employees of Target as of the Effective
Time shall be permitted to participate in the Yahoo! Inc. 1996 Employee Stock
Purchase Plan ("ESPP") commencing on the first enrollment date following the
Effective Time, subject to compliance with the eligibility and other provisions
of such plan.
Section 6.9 Director and Officer Liability. For six years after the
Effective Time, Acquiror will ensure that the Surviving Corporation (or Acquiror
will directly, in the event the Surviving Corporation is dissolved or wound up)
will indemnify and hold harmless the present and former officers, directors,
employees and agents of Target (the "Indemnified Parties") in respect of acts or
omissions occurring on or prior to the Effective Time to the extent provided
under Target's certificate of incorporation and bylaws in effect on the date
hereof; provided, that such indemnification shall be subject to any limitation
imposed from time to time under applicable law. In addition, Acquiror will
include the Indemnified Parties in any directors/officers insurance policy
otherwise obtained by Acquiror to the extent Acquiror can do so without
significant additional expense.
ARTICLE VII
OTHER AGREEMENTS
Section 7.1 Confidentiality. Each party acknowledges Acquiror and Target
have previously executed Mutual Non-Disclosure Agreement dated August 31, 1998
(the "CONFIDENTIALITY AGREEMENTS"), which agreement shall continue in full force
and effect in accordance with its terms.
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Section 7.2 No Public Announcement. The parties shall make no public
announcement concerning this Agreement, their discussions or any other
memoranda, letters or agreements between the parties relating to the Merger;
provided, however, that either of the parties, but only after reasonable
consultation with the other, may make disclosure if required under applicable
law; and provided further, however, that within five business days following the
Closing Date, Acquiror will make a public announcement regarding the Merger and
the integration of Target's business into that of Acquiror.
Section 7.3 Regulatory Filings; Consents; Reasonable Efforts. Subject to
the terms and conditions of this Agreement, Target and Acquiror shall use their
respective reasonable good faith efforts to (i) make all necessary filings with
respect to the Merger and this Agreement under the Exchange Act and applicable
blue sky or similar securities laws and obtain required approvals and clearances
with respect thereto and supply all additional information requested in
connection therewith; (ii) make merger notification or other appropriate filings
with federal, state or local governmental bodies or applicable foreign
governmental agencies and obtain required approvals and clearances with respect
thereto and supply all additional information requested in connection therewith;
(iii) obtain all consents, waivers, approvals, authorizations and orders
required in connection with the authorization, execution and delivery of this
Agreement and the consummation of the Merger; and (iv) take, or cause to be
taken, all appropriate action, and do, or cause to be done, all things
necessary, proper or advisable to consummate and make effective the transactions
contemplated by this Agreement as promptly as practicable.
Section 7.4 Pooling Accounting. Target and Acquiror shall each use its
reasonable good faith efforts to cause the business combination to be effected
by the Merger to be accounted for as a pooling of interests. Neither Target nor
Acquiror shall take any action that would adversely affect the ability of
Acquiror to account for the business combination to be effected by the Merger as
a pooling of interests.
Section 7.5 Further Assurances. Prior to and following the Closing, each
party agrees to cooperate fully with the other parties and to execute such
further instruments, documents and agreements and to give such further written
assurances, as may be reasonably requested by any other party to better evidence
and reflect the transactions described herein and contemplated hereby and to
carry into effect the intents and purposes of this Agreement.
Section 7.6 Escrow Agreement. On or before the Effective Time, Acquiror
shall, and the parties hereto shall exercise their reasonable good faith efforts
to cause the Escrow Agent (as defined in Section 10.2) and the Stockholders'
Agents (as defined in Section 10.9), to enter into an Escrow Agreement
substantially in the form attached hereto as Exhibit D.
Section 7.7 FIRPTA. Target shall, prior to the Closing Date, provide
Acquiror with a properly executed Foreign Investment and Real Property Tax Act
of 1980 ("FIRPTA") FIRPTA Notification Letter which states that shares of
capital stock of Target do not constitute "United States real property
interests" under Section 897(c) of the Code, for purposes of satisfying
Acquiror's obligations under Treasury Regulation Section 1.14452(c)(3). In
addition, simultaneously with delivery of such FIRPTA Notification Letter,
Target shall provide to
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Acquiror, as agent for Target, a form of notice to the Internal Revenue
Service in accordance with the requirements of Treasury Regulation Section
1.8972(h)(2), along with written authorization for Acquiror to deliver such
notice form to the Internal Revenue Service on behalf of Target upon the Closing
of the Merger.
Section 7.8 Blue Sky Laws. Acquiror shall take such steps as may be
necessary to comply with the securities and blue sky laws of all jurisdictions
which are applicable to the issuance of the Acquiror Common Stock in connection
with the Merger. Target shall use its reasonable good faith efforts to assist
Acquiror as may be necessary to comply with the securities and blue sky laws of
all jurisdictions which are applicable in connection with the issuance of
Acquiror Common Stock in connection with the Merger.
Section 7.9 Other Filings. As promptly as practicable after the date of
this Agreement, Target and Acquiror will prepare and file any other filings
required under the Exchange Act, the Securities Act or any other Federal,
foreign or state securities or blue sky laws relating to the Merger and the
transactions contemplated by this Agreement (the "OTHER FILINGS"). The Other
Filings will comply in all material respects with all applicable requirements of
law and the rules and regulations promulgated thereunder. Whenever any event
occurs which is required to be set forth in an amendment or supplement to the
Other Filings, Target or Acquiror, as the case may be, will promptly inform the
other of such occurrence and cooperate in making any appropriate amendment or
supplement, and/or mailing to stockholders of Target, such amendment or
supplement.
ARTICLE VIII
CONDITIONS TO MERGER
Section 8.1 Conditions to Each Party's Obligation to Effect the Merger.
The respective obligations of each party to this Agreement to effect the Merger
shall be subject to the satisfaction prior to the Closing Date of the following
conditions:
(a) Stockholder Approval. The stockholders of Target entitled to vote
on or consent to this Agreement and the Merger in accordance with the Delaware
Law and Target's Certificate of Incorporation shall have approved this Agreement
and the Merger.
(b) Approvals. Other than the filing provided for by Section 1.2, all
authorizations, consents, orders or approvals of, or declarations or filings
with, or expirations of waiting periods imposed by, any Governmental Entity
shall have been filed, occurred or been obtained.
(c) No Injunctions or Restraints; Illegality. No temporary
restraining order, preliminary or permanent injunction or other order issued by
any court of competent jurisdiction or other legal or regulatory restraint or
prohibition preventing the consummation of the Merger or limiting or restricting
the conduct or operation of the business of Target by Acquiror after the Merger
shall have been issued, nor shall any proceeding brought by a domestic
administrative agency or commission or other domestic Governmental Entity or
other third party, seeking any
- 41 -
of the foregoing be pending; nor shall there be any action taken, or any
statute, rule, regulation or order enacted, entered, enforced or deemed
applicable to the Merger which makes the consummation of the Merger illegal.
(d) Nasdaq. The shares of Acquiror Common Stock to be issued in the
Merger shall have been approved for quotation on the Nasdaq National Market.
(e) Tax Opinions. Target shall have received the opinion dated the
Closing Date of Pillsbury Madison & Sutro, special counsel to Target, to the
effect that the Merger will be treated for Federal income tax purposes as a
tax-free reorganization within the meaning of Section 368(a) of the Code. In
regarding such opinions, counsel shall be entitled to rely upon, among other
things, reasonable assumptions as well as representations of Acquiror, Sub and
Target.
Section 8.2 Additional Conditions to Obligations of Acquiror and Sub.
The obligations of Acquiror and Sub to effect the Merger are subject to the
satisfaction of each of the following conditions, any of which may be waived in
writing exclusively by Acquiror and Sub:
(a) Representations and Warranties. The representations and
warranties of Target set forth in this Agreement shall be true and correct in
all material respects as of the date of this Agreement and (except to the extent
such representations and warranties speak as of an earlier date) as of the
Closing Date as though made on and as of the Closing Date, except for changes
contemplated by this Agreement; and Acquiror shall have received a certificate
signed on behalf of Target by the chief executive officer and the chief
financial officer of Target to such effect.
(b) Performance of Obligations of Target. Target shall have performed
in all material respects all obligations required to be performed by it under
this Agreement at or prior to the Closing Date; and Acquiror shall have received
a certificate signed on behalf of Target by the chief executive officer and the
chief financial officer of Target to such effect.
(c) Blue Sky Laws. Acquiror shall have received all state securities
or "Blue Sky" permits and other authorizations necessary to issue shares of
Acquiror Common Stock pursuant to the Merger.
(d) Dissenting Stockholders. Holders of not more than five percent
(5%) of Target's issued and outstanding capital stock as of the Closing shall
have elected to exercise appraisal rights under Delaware Law as to such shares.
(e) Escrow Agreement. The Escrow Agent and Stockholders' Agents shall
have executed and delivered to Acquiror the Escrow Agreement and such agreement
shall remain in full force and effect.
(g) Ancillary Agreements. Each of the Stockholders Agreements and
Noncompetition Agreements executed and delivered concurrently with the execution
of this Agreement shall remain in full force and effect; and each "affiliate" of
Target that does not own
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stock of Target but holds options or warrants shall have entered into an
Affiliates Agreement in form reasonably acceptable to Acquiror.
(h) Opinion of Target's Counsel. Acquiror shall have received an
opinion dated the Closing Date of Kalow, Springut & Xxxxxxxx, counsel to Target,
and special regulatory counsel to Target, as to the matters in the form attached
hereto as Exhibit E.
(i) Approvals. All authorizations, consents (including the Material
Consents), or approvals of, or notifications to any third party, required by
Target's contracts, agreements or other obligations in connection with the
consummation of the Merger shall have occurred or been obtained.
(j) Termination of Agreements. The following agreements or provisions
shall be terminated to Acquiror's reasonable satisfaction: 1995 Stockholders
Agreement, Registration Rights Agreement dated April 9, 1998 with Silicon Valley
Bank, Section 1.7.3 of the Warrant to Purchase Stock held by Silicon Valley Bank
(April 9, 1998, and as amended), and all other agreements and provisions
granting registration rights to Target securityholders.
(k) Board Resignations. Target shall have received written letters of
resignation from the Target Board of Directors from each of the current members
of such Board, in each case effective at the Effective Time.
(l) No Material Adverse Change. Target shall not have suffered any
Material Adverse Change since the date of this Agreement.
(m) Pooling Letter. Acquiror shall have received a letter from
PricewaterhouseCoopers LLP, and Target shall have received a letter from KPMG
Peat Marwick, each dated as of the Closing Date, regarding that firm's
unqualified concurrence with Acquiror's management's and Target's management's
conclusion that the business combination to be effected by the Merger will
qualify as a pooling of interests transaction under generally accepted
accounting principles if consummated in accordance with this Agreement.
(n) Termination of Employment Agreement. The Employment Agreement
dated August 15, 1996, between Target and Xxxx Xxxxx shall have been terminated
without liability to Target.
Section 8.3 Additional Conditions to Obligations of Target. The
obligation of Target to effect the Merger is subject to the satisfaction of each
of the following conditions, any of which may be waived, in writing, exclusively
by Target:
(a) Representations and Warranties. The representations and
warranties of Acquiror and Sub set forth in this Agreement shall be true and
correct in all material respects as of the date of this Agreement and (except to
the extent such representations speak as of an earlier date) as of the Closing
Date as though made on and as of the Closing Date, and Target shall have
received a certificate signed on behalf of Acquiror by the chief executive
officer and the chief financial officer of Acquiror to such effect.
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(b) Performance of Obligations of Acquiror and Sub. Acquiror and Sub
shall have performed in all material respects all obligations required to be
performed by them under this Agreement at or prior to the Closing Date; and
Target shall have received a certificate signed on behalf of Acquiror by the
chief executive officer and the chief financial officer of Acquiror to such
effect.
(c) Opinion of Acquiror's Counsel. Target shall have received an
opinion dated the Closing Date of Venture Law Group, A Professional Corporation,
counsel to Acquiror, as to the matters attached hereto as Exhibit F.
(d) No Material Adverse Change. Acquiror shall not have suffered any
Material Adverse Change since the date of this Agreement (provided that changes
in the trading prices for Acquiror Common Stock during such period shall not be
taken into account in connection with the determination as to the existence or
absence of such a change with respect to Acquiror).
ARTICLE IX
TERMINATION AND AMENDMENT
Section 9.1 Termination. This Agreement may be terminated at any time
prior to the Effective Time:
(a) by mutual written consent of Acquiror and Target;
(b) by either Acquiror or Target, by giving written notice to the
other party, if a court of competent jurisdiction or other Governmental Entity
shall have issued a nonappealable final order, decree or ruling or taken any
other action, in each case having the effect of permanently restraining,
enjoining or otherwise prohibiting the Merger, except, if such party relying on
such order, decree or ruling or other action shall not have complied with its
respective obligations under Sections 5.5 or 6.3 of this Agreement, as the case
may be;
(c) by Acquiror or Target, by giving written notice to the other
party, if the other party is in material breach of any representation, warranty,
or covenant of such other party contained in this Agreement, which breach shall
not have been cured, if subject to cure, within 10 business days following
receipt by the breaching party of written notice of such breach by the other
party;
(d) by Acquiror, by giving written notice to Target, if the Closing
shall not have occurred on or before December 1, 1998 by reason of the failure
of any condition precedent under Section 8.1 or 8.2 (unless the failure results
primarily from a breach by Acquiror of any representation, warranty, or covenant
of Acquiror contained in this Agreement or Acquiror's failure to fulfill a
condition precedent to closing or other default);
(e) by Target, by giving written notice to Acquiror, if the Closing
shall not have occurred on or before December 1, 1998 by reason of the failure
of any condition precedent
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under Section 8.1 or 8.3 (unless the failure results primarily from a breach by
Target of any representation, warranty, or covenant of Target contained in this
Agreement or Target's failure to fulfill a condition precedent to closing or
other default); or
(f) by Acquiror, by giving written notice to Target, if the required
approvals of the stockholders of Target contemplated by this Agreement shall not
have been obtained by reason of the failure to obtain the required consents or
votes upon a vote taken by written consent or at a meeting of stockholders, duly
convened therefor or at any adjournment thereof.
Section 9.2 Effect of Termination. In the event of termination of this
Agreement as provided in Section 9.1, this Agreement shall immediately become
void and there shall be no liability or obligation on the part of Acquiror,
Target, Sub or their respective officers, directors, stockholders or Affiliates,
except as set forth in Section 9.3 and further except to the extent that such
termination results from the willful breach by any such party of any of its
representations, warranties or covenants set forth in this Agreement.
Section 9.3 Fees and Expenses.
(a) Except as set forth in this Section 9.3, all fees and expenses
incurred in connection with this Agreement and the transactions contemplated
hereby shall be paid by the party incurring such expenses, whether or not the
Merger is consummated. Target has submitted a budget to Acquiror for completion
of the Merger. Target shall use its best efforts to consummate the Merger within
such budget and shall not enter into any agreement inconsistent with such
budget.
(b) If the Merger is consummated, all legal, accounting, investment
banking, broker's and finder's fees and expenses incurred by Target or its
stockholders in connection with the Merger shall be deemed expenses of the
stockholders of Target to the extent such fees and expenses exceed $870,000, in
the case of broker's fees and $75,000 in the case of all other fees, and shall
be borne by the stockholders of Target to such extent and will not become
obligations of Target. Target will make arrangements for the payments of such
fees acceptable to Acquiror.
ARTICLE X
ESCROW AND INDEMNIFICATION
Section 10.1 Indemnification. From and after the Effective Time and
subject to the limitations contained in Section 10.2, the Former Target
Stockholders will, severally and pro rata, in accordance with their Pro Rata
Portion, indemnify and hold Acquiror harmless against any loss, expense,
liability or other damage, including attorneys' fees, to the extent of the
amount of such loss, expense, liability or other damage (collectively "DAMAGES")
that Acquiror has incurred by reason of the breach or alleged breach by Target
of any representation, warranty, covenant or agreement of Target contained in
this Agreement that occurs or becomes known to Acquiror during the Escrow Period
(as defined in Section 10.4 below). Acquiror, Target and Sub acknowledge and
agree, and the Former Target Stockholders, by their approval of this Agreement,
agree that notwithstanding anything to the contrary contained in this Agreement
or
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any other Transaction Document, such indemnification under this Article X
shall be the sole and exclusive remedy for any such claim of breach by Target,
except for Damages based upon a claim of fraud.
Section 10.2 Escrow Fund. As security and the sole and exclusive recourse
for the indemnities in Section 10.1, as soon as practicable after the Effective
Time, the Escrow Shares shall be deposited with U.S. Bank Trust, National
Association (or such other institution selected by Acquiror with the reasonable
consent of Target) as escrow agent (the "ESCROW AGENT"), such deposit to
constitute the Escrow Fund (the "ESCROW FUND") and to be governed by the terms
set forth in this Article X and in the Escrow Agreement. Notwithstanding the
foregoing or anything to the contrary contained in this Agreement or in any
Transaction Document, the indemnification obligations of the Former Target
Stockholders pursuant to this Article X or otherwise shall be limited to the
amount and assets deposited and present in the Escrow Fund and Acquiror shall
not be entitled to pursue any claims for indemnification under this Article X or
otherwise against the Former Target Stockholders directly or personally, and the
sole recourse of Acquiror shall be to make claims against the Escrow Fund in
accordance with the terms of the Escrow Agreement.
Section 10.3 Damage Threshold. Notwithstanding the foregoing, the Former
Target Stockholders shall have no liability under Section 10.1 and Acquiror may
not receive any shares from the Escrow Fund unless and until an Officer's
Certificate or Certificates (as defined in Section 10.5 below) for an aggregate
amount of Acquiror's Damages in excess of $50,000 has been delivered to the
Stockholders' Agents and to the Escrow Agent; provided, however, that after an
Officer's Certificate or Certificates for an aggregate of $50,000 in Damages has
been delivered, Acquiror shall be entitled to receive Escrow Shares equal in
value to the full amount of Damages identified in such Officer's Certificate or
Certificates; and provided further that any Acquiror Damages arising from or
relating to any breach of Section 3.25 shall not be subject to this Section 10.3
and shall be recoverable from the Escrow Fund without regard to any damage
threshold.
Section 10.4 Escrow Periods. The Escrow Fund shall terminate upon the
earlier of (i) the first anniversary date of the Closing Date and (ii) the date
on which Acquiror's auditors deliver their opinion as to Acquiror's financial
statements for the fiscal year ending after the Effective Time (the period from
the Closing Date to such date referred to as the "ESCROW PERIOD"), provided,
however, that the number of Escrow Shares, which, in the reasonable judgment of
Acquiror, subject to the objection of the Stockholders' Agents and the
subsequent resolution of the matter in the manner provided in Section 10.8, are
necessary to satisfy any unsatisfied claims specified in any Officer's
Certificate theretofore delivered to the Escrow Agent and the Stockholders'
Agents prior to termination of the Escrow Period with respect to Damages
incurred or litigation pending prior to expiration of the Escrow Period, shall
remain in the Escrow Fund until such claims have been finally resolved.
Section 10.5 Claims Upon Escrow Fund. Upon receipt by the Escrow Agent
on or before the last day of the Escrow Period of a certificate signed by any
appropriately authorized officer of Acquiror (an "OFFICER'S CERTIFICATE"):
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(i) Stating the aggregate amount of Acquiror's Damages or an
estimate thereof, in each case to the extent known or determinable at such time;
and
(ii) Specifying in reasonable detail the individual items of such
Damages included in the amount so stated, the date each such item was paid or
properly accrued or arose, and the nature of the misrepresentation, breach or
claim to which such item is related, the Escrow Agent shall, subject to the
provisions of Sections 10.3 and 10.8 hereof and of the Escrow Agreement, deliver
to Acquiror out of the Escrow Fund, as promptly as practicable, Escrow Shares
having a value equal to such Damages all in accordance with the Escrow Agreement
and Section 10.6 below. Amounts paid or distributed from the Escrow Fund shall
be paid or distributed pro rata among the Holders (as defined in the Escrow
Agreement) based upon their respective percentage interests therein at the time.
Section 10.6 Valuation. For the purpose of compensating Acquiror for its
Damages pursuant to this Agreement, the value per share of the Escrow Shares
which shall be released to Acquiror in respect of a claim for Damages shall be
the average closing price of Acquiror Common Stock for the five consecutive
trading days preceding the date of this Agreement.
Section 10.7 Objections to Claims. At the time of delivery of any
Officer's Certificate to the Escrow Agent, a duplicate copy of such Officer's
Certificate shall be delivered to the Stockholders' Agents (as defined in
Section 10.9 below) and for a period of thirty (30) days after such delivery,
the Escrow Agent shall make no delivery of Escrow Shares pursuant to Section
10.4 unless the Escrow Agent shall have received written authorization from the
Stockholders' Agents to make such delivery. After the expiration of such thirty
(30) day period, the Escrow Agent shall make delivery of the Escrow Shares in
the Escrow Fund in accordance with Section 10.4, provided that no such delivery
may be made if the Stockholders' Agents shall object in a written statement to
the claim made in the Officer's Certificate, and such statement shall have been
delivered to the Escrow Agent and to Acquiror prior to the expiration of such
thirty (30) day period.
Section 10.8 Resolution of Conflicts.
(a) In case the Stockholders' Agents shall so object in writing to
any claim or claims by Acquiror made in any Officer's Certificate, Acquiror
shall have thirty (30) days to respond in a written statement to the objection
of the Stockholders' Agents. If after such thirty (30) day period there remains
a dispute as to any claims, the Stockholders' Agents and Acquiror shall attempt
in good faith for thirty (30) days to agree upon the rights of the respective
parties with respect to each of such claims. If the Stockholders' Agents and
Acquiror should so agree, a memorandum setting forth such agreement shall be
prepared and signed by both parties and shall be furnished to the Escrow Agent.
The Escrow Agent shall be entitled to rely on any such memorandum and shall
distribute the Escrow Shares from the Escrow Fund in accordance with the terms
of the memorandum.
(b) If no such agreement can be reached after good faith negotiation,
either Acquiror or the Stockholders' Agents may, by written notice to the other,
demand arbitration of the matter unless the amount of the damage or loss is at
issue in pending litigation with a third
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party, in which event arbitration shall not be commenced until such amount is
ascertained or both parties agree to arbitration; and in either such event
the matter shall be settled by arbitration conducted by three arbitrators.
Within fifteen (15) days after such written notice is sent, Acquiror (on the one
hand) and the Stockholders' Agents (on the other hand) shall each select one
arbitrator, and the two arbitrators so selected shall select a third arbitrator.
The decision of the arbitrators as to the validity and amount of any claim in
such Officer's Certificate shall be binding and conclusive upon the parties to
this Agreement, and notwithstanding anything in Section 10.4, the Escrow Agent
shall be entitled to act in accordance with such decision and make or withhold
payments out of the Escrow Fund in accordance with such decision.
(c) Judgment upon any award rendered by the arbitrators may be
entered in any court having jurisdiction. Any such arbitration shall be held in
Santa Xxxxx or San Mateo County, California under the commercial rules then in
effect of the American Arbitration Association. The non-prevailing party to an
arbitration shall pay its own expenses, the fees of each arbitrator, the
administrative fee of the American Arbitration Association, and the expenses,
including, without limitation, the reasonable attorneys' fees and costs,
incurred by the prevailing party to the arbitration.
Section 10.9 Stockholders' Agents.
(a) Xxxx Xxxxx and Xxxxxxxxx X. Xxxxxx shall be constituted and
appointed as agents (the "STOCKHOLDERS' AGENTS") for and on behalf of the Former
Target Stockholders to give and receive notices and communications, to authorize
delivery to Acquiror of the Escrow Shares or other property from the Escrow Fund
in satisfaction of claims by Acquiror, to object to such deliveries, to agree
to, negotiate, enter into settlements and compromises of, and demand arbitration
and comply with orders of courts and awards of arbitrators with respect to such
claims, and to take all actions necessary or appropriate in the judgment of the
Stockholders' Agents for the accomplishment of the foregoing. All actions of the
Stockholders' Agents shall be taken jointly, not individually. Such agency may
be changed by the holders of a majority in interest of the Escrow Shares from
time to time upon not less than ten (10) days' prior written notice to Acquiror.
No bond shall be required of the Stockholders' Agents, and the Stockholders'
Agents shall receive no compensation for services. Notices or communications to
or from the Stockholders' Agents shall constitute notice to or from each of the
Former Target Stockholders.
(b) The Stockholders' Agents shall not be liable for any act done or
omitted hereunder as Stockholders' Agent while acting in good faith, and any act
done or omitted pursuant to the advice of counsel shall be conclusive evidence
of such good faith. The Former Target Stockholders shall severally and pro rata,
in accordance with their Pro Rata Portion, indemnify the Stockholders' Agents
and hold them harmless against any loss, liability or expense incurred without
gross negligence or bad faith on the part of the Stockholders' Agents and
arising out of or in connection with the acceptance or administration of their
duties hereunder under this Agreement or the Escrow Agreement.
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(c) The Stockholders' Agents shall have reasonable access to
information about Target and Acquiror and the reasonable assistance of Target's
and Acquiror's officers and employees for purposes of performing their duties
and exercising their rights under this Article X, provided that the
Stockholders' Agents shall treat confidentially and not disclose any nonpublic
information from or about Target or Acquiror to anyone (except on a need to know
basis to individuals who agree to treat such information confidentially).
Section 10.10 Actions of the Stockholders' Agents. A decision, act,
consent or instruction of the Stockholders' Agents shall constitute a decision
of all of the Former Target Stockholders for whom shares of Acquiror Common
Stock otherwise issuable to them are deposited in the Escrow Fund and shall be
final, binding and conclusive upon each such Former Target Stockholder, and the
Escrow Agent and Acquiror may rely upon any decision, act, consent or
instruction of the Stockholders' Agents as being the decision, act, consent or
instruction of each and every such Former Target Stockholder. The Escrow Agent
and Acquiror are hereby relieved from any liability to any person for any acts
done by them in accordance with such decision, act, consent or instruction of
the Stockholders' Agents.
Section 10.11 Claims. In the event Acquiror becomes aware of a third-party
claim which Acquiror believes may result in a demand against the Escrow Fund,
Acquiror shall promptly notify the Stockholders' Agents of such claim, and the
Stockholders' Agents and the Former Target Stockholders for whom shares of
Acquiror Common Stock otherwise issuable to them are deposited in the Escrow
Fund shall be entitled, at their expense, to participate in any defense of such
claim. Acquiror shall have the right in its sole discretion to settle any such
claim; provided, however, that Acquiror may not effect the settlement of any
such claim without the consent of the Stockholders' Agents, which consent shall
not be unreasonably withheld. In the event that the Stockholders' Agents have
consented to any such settlement, the Stockholders' Agents shall have no power
or authority to object to the amount of any claim by Acquiror against the Escrow
Fund for indemnity with respect to such settlement in the amount agreed to.
ARTICLE XI
MISCELLANEOUS
Section 11.1 Survival of Representations and Covenants. All
representations, warranties, covenants and agreements of Target contained in
this Agreement shall survive the Closing and any investigation at any time made
by or on behalf of Acquiror until the end of the Escrow Period. If Escrow Shares
or other assets are retained in the Escrow Fund beyond expiration of the period
specified in the Escrow Agreement, then (notwithstanding the expiration of such
time period) the representation, warranty, covenant or agreement applicable to
such claim shall survive until, but only for purposes of, the resolution of the
claim to which such retained Escrow Shares or other assets relate. All
representations, warranties, covenants and agreements of Acquiror contained in
this Agreement shall terminate as of the Effective Time, provided that the
covenants and agreements contained in Sections 6.5, 6.6, 6.7, 6.8 and 9.3 shall
survive the Closing and shall continue in full force and effect.
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Section 11.2 Notices. All notices and other communications hereunder
shall be in writing and shall be deemed given if delivered personally,
telecopied (which is confirmed) or two business days after being mailed by
registered or certified mail (return receipt requested) to the parties at the
following addresses (or at such other address for a party as shall be specified
by like notice):
(a) if to Acquiror or Sub:
Yahoo! Inc.
0000 Xxxxxxx Xxxxxxxxxx
Xxxxx Xxxxx, XX 00000
Attention: Chief Executive Officer
Fax No: (000) 000-0000
Telephone No: (000) 000-0000
with a copy at the same address to the attention of the General Counsel and
Secretary and with a copy to:
Venture Law Group
A Professional Corporation
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxx
Fax No: (000) 000-0000
Telephone No: (000) 000-0000
(b) if to Target, to:
Yoyodyne Entertainment, Inc.
0 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: President
Fax No:
Telephone No: (000) 000-0000
with a copy to:
Kalow, Springut & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxx
Fax No: (000) 000-0000
Telephone No: (000) 000-0000
Section 11.3 Interpretation. When a reference is made in this Agreement
to Sections, such reference shall be to a Section of this Agreement unless
otherwise indicated. The table of contents and headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. Whenever the words "INCLUDE,"
"INCLUDES" or "INCLUDING" are used in this Agreement they shall be deemed to be
followed by the words "WITHOUT LIMITATION." Whenever the words "TO THE KNOWLEDGE
OF TARGET" or "KNOWN TO TARGET" or similar phrases are used in this Agreement,
they mean to the
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actual knowledge, after reasonable inquiry, of Xxxx Xxxxx, Xxxxxxxx Xxxxxxx, Xxx
Xxxx, Xxxxxx Shereshewski, Xxxxx Xxxxx, Xxxxxxx Xxxxxxx and Xxx Xxxxx.
Section 11.4 Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when two or more counterparts have been signed by each of
the parties and delivered to the other parties, it being understood that all
parties need not sign the same counterpart.
Section 11.5 Entire Agreement; No Third Party Beneficiaries. This
Agreement (including the documents and the instruments referred to herein), the
Confidentiality Agreement, and the Transaction Documents (a) constitute the
entire agreement and supersedes all prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter hereof,
and (b) are not intended to confer upon any person other than the parties hereto
(including without limitation any Target employees) any rights or remedies
hereunder.
Section 11.6 Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of California without regard
to any applicable conflicts of law.
Section 11.7 Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto (whether by operation of law or otherwise) without the prior written
consent of the other parties. Subject to the preceding sentence, this Agreement
will be binding upon, inure to the benefit of and be enforceable by the parties
and their respective successors and assigns.
Section 11.8 Amendment. This Agreement may be amended by the parties
hereto, at any time before or after approval of matters presented in connection
with the Merger by the stockholders of Target, but after any such stockholder
approval, no amendment shall be made which by law requires the further approval
of stockholders without obtaining such further approval. This Agreement may not
be amended except by an instrument in writing signed on behalf of each of the
parties hereto.
Section 11.9 Extension; Waiver. At any time prior to the Effective Time,
the parties hereto may, to the extent legally allowed, (i) extend the time for
the performance of any of the obligations or the other acts of the other parties
hereto, (ii) waive any inaccuracies in the representations or warranties
contained herein or in any document delivered pursuant hereto and (iii) waive
compliance with any of the agreements or conditions contained herein. Any
agreement on the part of a party hereto to any such extension or waiver shall be
valid only if set forth in a written instrument signed on behalf of such party.
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Section 11.10 Specific Performance. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties shall be entitled
to injunctive relief to prevent breaches of this Agreement and to enforce
specifically the terms and provisions hereof in any court of the United States
or any state having jurisdiction, this being in addition to any other remedy to
which they are entitled at law or in equity.
[Signature Page Follows]
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IN WITNESS WHEREOF, Acquiror, Sub and Target have caused this Agreement and Plan
of Merger to be signed by their respective officers thereunto duly authorized as
of the date first written above.
YAHOO! INC.
By:________________________________
Title:_____________________________
YO ACQUISITION CORPORATION
By:_______________________________
Title:____________________________
YOYODYNE ENTERTAINMENT, INC.
By:
Title:
