EXHIBIT 2.9
AGREEMENT AND PLAN OF MERGER
BY AND BETWEEN
IXL HOLDINGS, INC.,
IXL MERGER CORP. III, INC.
BOXTOP INTERACTIVE, INC.,
XXXXX XXXX,
XXXXX XXXXX,
XXXX XXXXXX,
XXXX XXXXX,
XXXX XXXXXXXXX,
XXXXXX XXXXXXX,
XXXX XXXXX,
XXXXXXX X. XXXXXXX,
XXXXX X. XXXXXX
AND
XXXXXXXXX XXXX
DATE AS OF MAY 30, 1997
AGREEMENT AND PLAN OF MERGER
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THIS AGREEMENT AND PLAN OF MERGER is entered into this 30th day of MAY,
1997, by and between BOXTOP INTERACTIVE, INC., a California corporation ("BII"),
IXL HOLDINGS, INC., a Delaware corporation ("Parent"), IXL MERGER CORP. III,
INC., a Delaware corporation, or its successors or assigns ("Sub"), and the
shareholders of BII as listed on the signature page hereto (the "BII
Shareholders").
R E C I T A L S:
- - - - - - - -
A. BII is engaged in the business of (i) creating and designing WEB pages
and providing internet hosting; and (ii) developing video conference software
(the "BII Business").
B. BII and Sub each desire to merge their respective companies and
business operations, all on the terms and subject to the conditions set forth
herein (the "Merger").
C. The BII Shareholders collectively own 100% of the issued and
outstanding capital stock of BII (the "BII Stock").
D. The respective Boards of Directors and stockholders of Parent, Sub and
BII have approved the Merger, upon the terms and subject to the conditions set
forth herein.
E. The parties hereto intend for the Merger to qualify, for federal
income tax purposes, as a reorganization within the meaning of Section 368(a) of
the Internal Revenue Code of 1986, as amended (the "Code").
NOW, THEREFORE, in consideration of the mutual covenants, benefits,
conditions and agreements set forth herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, it
is hereby agreed as follows:
ARTICLE I
THE MERGER
1.1 THE MERGER. Upon the terms and subject to the conditions hereof, at
the Effective Time (as defined in Section 1.3 hereof), (a) BII shall be merged
with and into Sub, (b) the separate existence of BII shall cease, and (c) Sub
shall continue as the surviving corporation in the Merger under the laws of the
State of Delaware under the name BoxTop Interactive, Inc. For purposes of this
Agreement, Sub shall be referred to, for the period commencing on the Effective
Time, as the "Surviving Corporation".
1.2 CLOSING. Subject to the satisfaction or waiver of the conditions set
forth in Article VII hereof, the closing of the Merger (the "Closing") will take
place at the offices of Xxxxxx & Xxxxxx, A Professional Corporation, One
Buckhead Plaza, 0000 Xxxxxxxxx Xxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000.
1.3 EFFECTIVE TIME OF THE MERGER. At the Closing, the parties hereto shall
cause (a) a certificate of merger (the "Certificate of Merger") to be filed
with the office of the Secretary of State of the State of Delaware in accordance
with the provisions of the Delaware General Corporation Law, as amended (the
"DGCL"); and (b) a copy of the Certificate of Merger to be filed with the office
of the Secretary of State of the State of California in accordance with the
provisions of the California Corporations Code, as amended (the "CCC"). When
used in this Agreement, the term "Effective Time" shall mean the time when the
Certificate of Merger has been accepted for filing by the Secretary of State of
the State of Delaware and California, respectively, or such time as otherwise
specified in the Certificate of Merger.
1.4 EFFECT OF THE MERGER. The Merger shall, from and after the Effective
Time, have all the effects provided by the DGCL and CCC. If at any time after
the Effective Time, any further action is deemed necessary or desirable to carry
out the purposes of this Agreement, the parties hereto agree that the Surviving
Corporation and its proper officers and directors shall be authorized to take,
and shall take, any and all such action.
ARTICLE II
THE SURVIVING CORPORATION
2.1 CERTIFICATE OF INCORPORATION. The Amended and Restated Certificate of
Incorporation of Sub, a form of which is attached hereto on Schedule 5.1, shall
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be the Certificate of Incorporation of the Surviving Corporation after the
Effective Time, until thereafter changed or amended as provided therein or by
applicable law.
2.2 BYLAWS. The Bylaws of Sub as in effect immediately prior to the
Effective Time shall be the Bylaws of the Surviving Corporation, until
thereafter changed or amended as provided therein or by applicable law. A copy
of the Bylaws of Sub are included on Schedule 5.1 hereto.
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2.3 BOARD OF DIRECTORS; OFFICERS. The Board of Directors and officers of
Sub immediately prior to the Effective Time shall be the Board of Directors and
officers, respectively, of the Surviving Corporation, until the earlier of their
respective resignations or the time that their respective successors are duly
elected or appointed and qualified; provided, however, that the President and
Chief Executive Officer of the Surviving
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Corporation after the Effective Time will be Xxxxx Xxxx, until such time as he
resigns or his successor is duly elected or appointed and qualified.
ARTICLE III
CONVERSION OF SHARES
3.1 MERGER CONSIDERATION. As of the Effective Time, by virtue of the
Merger and without any action on the part of any stockholder of BII or Sub:
(a) All shares of BII Stock owned by BII (including treasury shares)
shall be canceled and retired and shall cease to exist, and no consideration
shall be delivered in exchange therefor;
(b) Each issued and outstanding share of BII Stock (other than any
Dissenting Shares, as defined in Section 3.2 hereof) shall be converted into,
and become exchangeable for, 0.011562 shares of validly issued, fully paid and
nonassessable Class B Common Stock of Parent, $.01 par value (the "Parent
Stock").
(c) Each issued and outstanding share of common stock of Sub shall be
converted into and become one fully paid and nonassessable share of common stock
of the Surviving Corporation.
(d) As additional consideration for the Merger, each issued and
outstanding BII Stock Right (as defined in Section 6.4 hereof) shall be
surrendered and exchanged for a specified number of options or warrants to
purchase Parent Stock, as applicable, as set forth in Section 6.4 hereof.
3.2 DISSENTING SHARES. Notwithstanding any provisions of this Agreement to
the contrary, any shares of BII Stock held by a Dissenting Shareholder (as
hereinafter defined) shall not be canceled as described in Section 3.1(b)
hereof, but instead shall be converted into the right to receive the
consideration due a Dissenting Shareholder pursuant to the DGCL or the CCC, as
applicable; provided, however, that if a Dissenting Shareholder shall fail to
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perfect his demand, withdraw his demand or otherwise lose his right for
appraisal under the terms of the DGCL or the CCC, as applicable, the BII Stock
held by such Dissenting Shareholder (the "Dissenting Shares") shall be deemed to
be canceled as of the Effective Time in accordance with the provisions of
Section 3.1 hereof. BII shall give Parent prompt notice of any written demands
for appraisal of shares of BII Stock, and the opportunity to direct all
negotiations and proceedings with respect to any such demands. Without the prior
written consent of Parent, BII shall not voluntarily make any payment with
respect to, settle, or offer to settle or otherwise negotiate, any such demands.
All amounts paid to Dissenting
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Shareholders shall be paid without interest thereon (to the extent permitted by
applicable law) by the Surviving Corporation. For purposes of this Agreement,
the term "Dissenting Shareholder" shall mean a BII Shareholder who (a) objects
to the Merger; and (b) complies with the applicable provisions of the DGCL and
CCC concerning dissenter's rights.
3.3 NO FURTHER RIGHTS. From and after the Effective Time, holders of
certificates theretofore evidencing BII Stock shall cease to have any rights as
stockholders of BII, except as provided herein or by law.
3.4 CLOSING OF THE BII'S TRANSFER BOOKS. At the Effective Time, the stock
transfer books of BII shall be closed and no transfer of BII Stock shall be made
thereafter. If after the Effective Time, certificates for BII Stock are
presented to Parent or the Surviving Corporation, they shall be canceled and
exchanged for an amount of Parent Stock as set forth in Section 3.1 hereof,
subject to applicable law in the case of Dissenting Shares.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BII
BII, Xxxxx Xxxx ("Wall") and Xxxxx Xxxxx ("Wyler") jointly and severally
make to Parent and Sub the representations and warranties set forth in this
Article IV, other than the representations and warranties specifically
enumerated in the following sentence. In addition, the BII Shareholders
(including Wall and Wyler) individually (but not jointly and severally) make the
representations and warranties that are stated in this Article IV to be made by
each BII Shareholder (specifically, the representations and warranties contained
in Sections 4.3(b), 4.29, 4.31, 4.32, 4.33 and 4.34). The representations and
warranties contained in this Article IV shall survive the Closing in accordance
with Section 9.1 of this Agreement.
4.1 ORGANIZATION AND QUALIFICATION. BII is a corporation duly organized,
validly existing and in good standing under the laws of the State of California.
BII has the requisite corporate power and authority to carry on the BII Business
as it is now being conducted and is duly qualified or licensed to do business,
and is in good standing, in each jurisdiction where the character of its
properties owned or held under lease or the nature of its activities makes such
qualification necessary. Complete and correct copies of the Articles of
Incorporation and Bylaws of BII as in effect on the date hereof are attached as
Schedule 4.1 hereto. The minute book of BII, a true and complete copy of which
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has been delivered to Parent, (a) accurately reflects all action taken by the
directors and shareholders of BII at meetings of BII's Board of Directors or
shareholders, as the case may be; and (b) contains true and complete copies of,
or originals of,
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the respective minutes of all meetings or consent actions of the directors or
shareholders.
4.2 AUTHORITY. BII has the necessary corporate power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby by BII have been duly and
validly authorized and approved by BII's Board of Directors and the BII
Shareholders, and no other corporate or shareholder proceedings on the part of
BII, its Board of Directors or the BII Shareholders is necessary to authorize or
approve this Agreement or to consummate the transactions contemplated hereby.
This Agreement has been duly executed and delivered by BII and each BII
Shareholder, and assuming the due authorization, execution and delivery by
Parent and Sub, constitutes the valid and binding obligation of BII and each BII
Shareholder, enforceable against BII and each BII Shareholder in accordance with
its terms.
4.3 CAPITALIZATION.
(a) The authorized capital stock of BII consists (i) of 50,000,000
shares of common stock, $.01 par-value, of which (A) 3,595,265 shares were
validly issued and outstanding prior to the execution and delivery of the
Redemption Agreements (as defined in Section 7.1(h) hereof), and (B) 2,955,265
shares are validly issued and outstanding, fully paid and nonassessable
immediately following the execution and delivery of the Redemption Agreements;
and (ii) 5,000,000 shares of preferred stock, $.01 par value, of which no shares
are validly issued and outstanding. All outstanding capital stock of BII was
issued in accordance with applicable federal and state securities laws. There
are no classes of or series of capital stock of BII outstanding other than the
BII Stock, and except as set forth on Schedule 4.3 hereto, no options, warrants,
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calls, agreements, commitments or other rights presently outstanding that would
obligate BII or the any of the BII Shareholders to issue, deliver or sell shares
of its capital stock, or to grant, extend or enter into any such option,
warrant, call, agreement, commitment or other right. In addition to the
foregoing, as of the date hereof, BII has no bonds, debentures, notes or other
indebtedness issued or outstanding that have voting rights in BII. Schedule 4.3
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sets forth a list of all holders of record of BII Stock Rights, the number of
shares of capital stock of BII represented by the BII Stock Rights and held by
each such holder, and the exercise price for each such BII Stock Right.
(b) Each of the BII Shareholders represents and warrants that the BII
Stock held by such BII Shareholder is free and clear of any lien, charge,
security interest, pledge, option, right of first refusal, voting proxies or
other voting agreements, or encumbrance of any kind or nature (any of the
foregoing, a "Lien").
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4.4 SUBSIDIARIES. BII has no subsidiaries and does not otherwise own or
control, directly or indirectly, any equity interest in, or any security
convertible into an equity interest in, any corporation, partnership, limited
liability company, joint venture, association or other business entity (any of
the foregoing, an "Entity").
4.5 NO CONFLICTS, REQUIRED FILINGS AND CONSENTS. Except as set forth on
Schedule 4.5 hereto, none of the execution and delivery of this Agreement by BII
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or the BII Shareholders, the consummation by BII and the BII Shareholders of the
transactions contemplated hereby or compliance by BII with any of the provisions
hereof will:
(a) conflict with or violate the Articles of Incorporation or Bylaws
of BII;
(b) result in a violation of any statute, ordinance, rule,
regulation, order, judgment or decree applicable to BII or the BII Shareholders,
or by which BII or its properties or assets may be bound or affected;
(c) result in a violation or breach of, or constitute a default (or
an event that, with notice or lapse of time or both, would become a default)
under, or give to others any rights of termination, amendment, acceleration or
cancellation of, any note, bond, mortgage, indenture, or any material contract,
agreement, arrangement, lease, license, permit, judgment, decree, franchise or
other instrument or obligation to which BII is a party or by which BII or its
properties may be bound or affected (collectively, for purposes of this Section
4.5, a "BII Agreement");
(d) result in the creation of any Lien on any of the property or
assets of BII; or
(e) require any consent, waiver, license, approval, authorization,
order, permit, registration or filing with, or notification to (any of the
foregoing being a "Consent"), of (i) any government or subdivision thereof,
whether domestic, foreign or multinational, or any administrative, governmental,
or regulatory authority, agency, commission, court, tribunal or body, whether
domestic, foreign or multinational (a "Governmental Entity"), except for the
filing of the Certificate of Merger pursuant to the DGCL and CCC; or (ii) any
other individual or Entity (collectively, a "Person") pursuant to any BII
Agreement.
4.6 FINANCIAL STATEMENTS. BII has heretofore furnished Parent with a true
and complete copy of (a) the unaudited financial statements of BII for the
period ending September 30, 1996; and (b) the unaudited financial statements of
BII for the period ending March 31, 1997, a copy of each of which is attached
hereto as Schedule 4.6 (collectively herein referred to as the
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"BII Financial Statements"). The BII Financial Statements have been prepared in
accordance with generally accepted accounting principles (except, in the case of
the unaudited financial statements, for the absence of footnotes and normal
year-end adjustments) consistently followed throughout the period indicated, and
present fairly, in all material respects, the financial position and operating
results of BII as of the dates, and during the periods, indicated therein.
4.7 ABSENCE OF CHANGES. Except as provided in Schedule 4.7 hereto and
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except as contemplated by this Agreement, since March 31, 1997, (a) BII has not
entered into any transaction that was not in the ordinary course of business;
(b) there has been no sale, assignment, transfer, mortgage, pledge, encumbrance
or lease of any material assets or properties of BII; (c) there has been (i) no
declaration or payment of a dividend, or any other declaration, payment or
distribution of any type or nature to any shareholder of BII in respect of its
stock, whether in cash or property, and (ii) no purchase or redemption of any
shares of the capital stock of BII; (d) there has been no declaration, payment,
or commitment for the payment, by BII, of a bonus or other additional salary,
compensation, or benefit to any employee of BII that was not in the ordinary
course of business; (e) there has been no release, compromise, waiver or
cancellation of any debts to or claims by BII, or waiver of any rights of BII,
in each case having a value in excess of $10,000; (f) there have been no capital
expenditures in excess of $10,000 for any single item, or $25,000 in the
aggregate; (g) there has been no change in accounting methods or practices or
revaluation of any assets of BII (other than BII Accounts Receivable (as defined
in Section 4.26 hereof) written down in the ordinary course of business that are
not in excess of $10,000 for any single BII Account Receivable and $25,000 in
the aggregate); (h) there has been no material damage, destruction or loss of
physical property (whether or not covered by insurance) adversely affecting the
BII Business or the operations of BII; (i) there has been no loan by BII, or
guaranty by BII of any loan, to any employee of BII or to any Person related to
the BII Business; (j) to the knowledge of BII, BII has not ceased to transact
business with any customer that, as of the date of such cessation, represented
more than 5% of the annual gross revenues of BII; (k) there has been no
termination or resignation of any key employee or officer of BII, and to the
knowledge of BII, no such termination or resignation is threatened; (1) there
has been no amendment or termination of any material oral or written contract,
agreement or license related to the BII Business, to which BII is a party or by
which it is bound, except in the ordinary course of business, or except as
expressly contemplated by this Agreement; (m) BII has not failed to satisfy any
of its debts, obligations or liabilities related to the BII Business or the
assets of BII as the same become due and owing (except for BII Accounts Payable
(as defined in Section 4.27 hereof), payable in accordance with past practices
and in the ordinary course of business); (n) there has
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been no agreement or commitment by BII to do any of the foregoing; and (o) there
has been no other event or condition of any character pertaining to and
materially affecting the assets or financial condition of BII or the BII
Business.
4.8 UNDISCLOSED LIABILITIES. Except as set forth on Schedule 4.8 hereto,
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BII has no debt, liability or obligation of any kind, whether accrued, absolute
or otherwise, including, without limitation, any liability or obligation on
account of taxes or any governmental charges or penalty, interest or fines,
except (a) liabilities not in excess of $50,000 (whether individually or in the
aggregate) incurred in the ordinary course of business after March 31, 1997; (b)
liabilities reflected on the BII Financial Statements; and (c) liabilities
incurred as a result of the transactions contemplated by this Agreement.
4.9 TITLE TO PROPERTIES. Except as set forth on Schedule 4.9 hereto, BII
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has good and marketable title to all property and assets used in the BII
Business (other than BII Real Property (as defined in Section 4.12 hereof)), and
good title to all of its leasehold interests, in each case, free and clear of
any and all Liens other than liens for taxes not yet due and payable.
4.10 EQUIPMENT. Schedule 4.10 hereto sets forth a true and correct list of
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all items of tangible personal property (including, without limitation, computer
hardware) necessary for or used in the operation of the BII Business in the
manner in which it has been and is now operated by BII ("the BII Equipment"),
except for personal property having a net book value of less than $1,000. Except
as set forth on Schedule 4.10, each material item of BII Equipment is in good
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condition and repair, ordinary wear and tear excepted.
4.11 INTELLECTUAL PROPERTY.
(a) BII owns, or is validly licensed or otherwise has the right to
use or exploit, all BII Intellectual Property Rights (as hereinafter defined),
free of any obligation to make any payment (whether of a royalty, license fee,
compensation or otherwise). No claims are pending or, to the knowledge of BII,
threatened, that BII is infringing or otherwise adversely affecting the rights
of any Person with regard to any BII Intellectual Property Right. BII has used
commercially reasonable efforts to protect the BII Intellectual Property Rights,
and, to the knowledge of BII, no Person is infringing the rights of BII with
respect to any BII Intellectual Property Right. To the knowledge of BII, neither
BII nor any employee, agent or independent contractor of BII has used,
appropriated or disclosed, directly or indirectly, any trade secrets or other
proprietary or confidential information of any other Person, or otherwise
violated any confidential relationship with any other Person. To the knowledge
of BII, use of the name "BoxTop Interactive, Inc." does not infringe upon the
rights of any
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Person. For purposes of this Section 4.11(a), the term "BII Intellectual
Property Right(s)" shall mean all material proprietary technology, trade
secrets, know-how, patents, patent rights, trademarks, trademark rights, trade
names, trade name rights, service marks, service xxxx rights, copyrights, and
other intellectual property rights used or required to be used by BII in the
conduct of the BII Business.
(b) BII currently licenses, or otherwise has the legal right to use,
all of the BII Software (as hereinafter defined) (including any upgrades,
alterations or enhancements with respect thereto), and all of the BII Software
is being used in compliance with any applicable licenses or other agreements.
For purposes of this Section 4.11(b), the term "BII Software" shall mean all
material computer software used or required to be used by BII in the conduct of
the BII Business.
4.12 REAL PROPERTY. Except as set forth on Schedule 4.12 hereto:
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(a) BII has good and valid leasehold interest in all real property
(including all buildings, improvements and fixtures thereon) used in the
operation of the BII Business (the "BII Real Property"). BII owns no real
property. Except for liens for current taxes not yet due and the items set forth
on Schedule 4.12, there are no Liens on BII's interest in any of the BII Real
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Property.
(b) There are no parties in possession of any portion of the BII Real
Property other than BII, whether as sublessees, subtenants at will, trespassers
or otherwise.
(c) There are water, sewer, gas and electrical lines presently in
existence on the BII Real Property that are sufficient to service adequately the
operations of the BII Business as presently operated in each building located on
the BII Real Property.
(d) To the knowledge of BII, there is no pending or threatened
condemnation or similar proceeding affecting the BII Real Property or any
portion thereof, and, to the knowledge of BII, no such action is presently
contemplated.
(e) To the knowledge of BII, there are no laws, ordinances,
restrictions, judicial or administrative actions, actions by adjacent
landowners, or natural or artificial conditions upon the BII Real Property, or
any other fact or condition, that would have a material adverse effect upon the
use of the BII Real Property for the operation of the BII Business.
(f) To the knowledge of BII, BII's use, operation and maintenance of
the BII Real Property does not violate any restrictive covenants affecting the
BII Real Property, or any
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zoning, building or other federal, state or municipal law, ordinance, regulation
or restriction.
(g) To the knowledge of BII, there is no law, ordinance, order,
regulation or requirement now in existence or under active consideration by any
Governmental Entity, that would require, under the provisions of any of the BII
Leases (as hereinafter defined), any material expenditure by BII to modify or
improve any of the BII Real Property to bring it into compliance therewith.
(h) To the knowledge of BII, there are no structural, or material
electrical, mechanical, plumbing, or other defects in the buildings located on
the BII Real Property and the buildings thereon are free from leaks.
4.13 LEASES. Schedule 4.13 hereto sets forth a list of all leases pursuant
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to which BII leases, as lessor or lessee, real or personal property used in
operating the BII Business or otherwise (the "BII" Leases"). Copies of the BII
Leases, which have previously been provided to Parent, are true and complete
copies thereof. All of the BII Leases are valid, binding and enforceable in
accordance with their respective terms against BII (and, to the knowledge of
BII, against the other parties thereto), and there is not under any such BII
Lease any existing default by BII, or, to the knowledge of BII, by any other
party thereto, or any condition or event of that, with notice or lapse of time
or both, would constitute a default. BII has not received written notice that
the landlord of any of the BII Leases intends to cancel, suspend or terminate
the BII Leases or to exercise or not exercise any options under any of the BII
Leases. The current offices used by BII are suitable for the operation of
the BII Business in the manner in which it is now being conducted by BII.
4.14 CONTRACTS. Except as set forth on Schedule 4.14 hereto, BII is not,
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directly or indirectly, a party (in its own name or as a successor in interest),
or otherwise bound by, any written or oral:
(a) material service agreement or commitment (including, without
limitation, agreements or commitments covering business and office equipment,
repairs, interior design, outdoor landscaping, graphics, sanitation, voice mail,
advertising, and vending machines);
(b) material supplier agreement or commitment (including, without
limitation, agreements or commitments involving office supplies, cleaning
supplies, food/refreshment supplies);
(c) material agreement or commitment with any customer of BII
(including without limitation any agreement or commitment
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providing for a retainer) entered into on or prior to May 27, 1997;
(d) shareholder agreement (including voting agreements, proxies and
the like);
(e) employment agreement;
(f) agreement or commitment relating to computer systems, including
those relating to hardware, software, maintenance, and upgrades;
(g) agreement or commitment with a term of more than one year;
(h) merger or acquisition agreement or commitment whereby BII acquired
or disposed of (or will acquire or dispose of) stock or assets;
(i) agreement or commitment on the part of BII to loan money to, or
to guarantee the indebtedness of, any third party;
(j) agreement or commitment on the part of BII to borrow money from,
or receive a guarantee of indebtedness from, any third party, including, without
limitation, any agreement in connection therewith creating a Lien on any of the
property or assets of BII;
(k) agreement or commitment containing covenants (i) limiting,
directly or indirectly, the freedom of BII (or, to the knowledge of BII or the
BII Shareholders, a material employee of BII) to compete in any line of business
in any geographical area; (ii) limiting, directly or indirectly, the freedom of
BII to use any Intellectual Property Right in any geographic area; or (iii)
requiring BII, directly or indirectly, to share any profits or revenues;
(1) material warranty arrangements (whether BII is the provider or the
recipient);
(m) agreement or commitment including dividend restrictions or other
negative covenants;
(n) indemnity agreements or commitments given or received by BII; or
(o) any other material agreement or commitment relating to BII or the
BII Business.
True and complete copies of each such written contract or commitment, and a
true and complete narrative description of any oral contract or commitments,
listed on Schedule 4.14 (collectively, the "BII Contracts") have previously
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been made
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available to Parent. Neither BII nor, to the knowledge of BII, any other party
to any of the BII Contracts, (x) is in default under (nor does there exist any
condition that, with notice or lapse of time or both, would cause such a default
under) any of the BII Contracts, or (y) has waived any right it may have under
any of the BII Contracts, the waiver of which would have a material adverse
effect on the assets or financial condition of BII or the BII Business taken as
a whole. All of the BII Contracts constitute the valid and binding obligation of
BII, and, to the knowledge of BII, the other parties thereto. For purposes of
this Agreement, an agreement or commitment shall be deemed to be "material" to
the extent such agreement or commitment obligates BII to pay, or entitles BII to
receive, in any one year or in the aggregate, in excess of $10,000. In addition
to the foregoing, BII hereby represents and warrants that the aggregate value of
all payment obligations, and rights to receive payments, under agreements,
contracts and commitments (whether oral or in writing) to which BII is a party
or by which it is otherwise bound, that would not be considered "material" in
accordance with the preceding sentence, and that are not listed on Schedule 4.
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14, is less than $200,000 (calculating such value by adding together the value
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of rights and obligations, and not by determining the net amount thereof).
4.15 DIRECTORS AND OFFICERS. Schedule 4.1.5 hereto sets forth a list, as of
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the date of this Agreement, of the name of each director and officer of BII and
the offices held by each.
4.16 PAYROLL INFORMATION. Schedule 4.16 hereto sets forth a true and
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complete copy of the most recent payroll report of BII, showing all current
employees of BII and their current levels of compensation, other than bonuses
and other extraordinary compensation. BII has paid all compensation required to
be paid to employees of BII on or prior to the date hereof.
4.17 LITIGATION. Except as set forth on Schedule 4.17 hereto, there is no
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suit, action, claim, investigation or proceeding pending or, to the knowledge of
BII, threatened against or affecting BII, the BII Business, or the BII
Shareholders, nor is there any judgment, decree, injunction or order of any
applicable Governmental Entity or arbitrator outstanding against BII that,
either individually or in the aggregate, would have a material adverse effect on
the assets or financial condition of BII or the BII Business taken as a whole.
4.18 EMPLOYEE BENEFIT PLANS/LABOR RELATIONS.
(a) Except as disclosed in Schedule 4.18 hereto, there are no employee
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benefit plans, agreements or arrangements maintained by BII, including, without
limitation, (i) "employee benefit plans," within the meaning of Section 3(3)
of the Employee Retirement Income Security Act of 1974, as amended ("ERISA");
(ii) affirmative action plans; (iii) current or
12
deferred compensation, pension, profit sharing, vacation or severance plans or
programs; or (iv) medical, hospital, accident, disability or death benefit plans
(collectively, "BII Benefit Plans"). All BII Benefit Plans are administered in
accordance with, and are in material compliance with, all applicable laws and
regulations. No default exists with respect to the obligations of BII under any
BII Benefit Plans.
(b) BII is not a party to any collective bargaining agreement, no such
agreement determines the terms and conditions of employment of any employee of
BII, no collective bargaining agent has been certified as a representative of
any of the employees of BII, no representation campaign or election is now in
progress with respect to any employee of BII and there are no labor disputes,
grievances, controversies, strikes or requests for union representation pending,
or, to the knowledge of BII, threatened, relating to or affecting the BII
Business. To the knowledge of BII, no event has occurred that could give rise to
any such dispute, controversy, strike or request for representation.
4.19 ERISA.
(a) All BII Benefit Plans that are subject to ERISA have been
administered in accordance with, and are in material compliance with, the
applicable provisions of ERISA. Each of BII Benefit Plans that is intended to
meet the requirements of Section 401(a) of the Code has been determined by the
Internal Revenue Service to meet such requirements within the meaning of such
provision. No BII Benefit Plan is subject to Title IV of ERISA or Section 412 of
the Code. BII has not engaged in any non-exempt "prohibited transactions," as
such term is defined in Section 4975 of the Code or Section 406 of ERISA,
involving BII Benefit Plans that would subject BII to the penalty or tax imposed
under Section 502(i) of ERISA or Section 4975 of the Code. BII has not engaged
in any transaction described in Section 4069 of ERISA within the last five
years. Except as disclosed in Schedule 4.19 hereto or pursuant to the terms of
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BII Benefit Plans, neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby will (i) result in any
payment (including, without limitation, severance, unemployment compensation or
golden parachute) becoming due to any director or other employee of BII, (ii)
increase any benefits otherwise payable under any BII Benefit Plan or (iii)
result in the acceleration of the time of payment or vesting of any such
benefits to any extent.
(b) No notice of a "reportable event," within the meaning of Section
4043 of ERISA for which the 30-day reporting requirement has not been waived,
has been required to be filed for any BII Benefit Plan that is an "employee
pension benefit plan" within the meaning of Section 3(2) of ERISA and that is
intended to meet the requirements of Section 401(a) of the Code,
13
or by any entity that is considered one employer with BII under Section 4001 of
ERISA or Section 414 of the Code (an "ERISA Affiliate"), within the 12-month
period ending on the date hereof. BII has not incurred any liability to the
Pension Benefit Guaranty Corporation in respect of any BII Benefit Plan that
remains unpaid.
4.20 TAXES.
(a) BII has duly and timely filed all federal, state and local income,
franchise, excise, real and personal property and other tax returns and reports,
including extensions, required to have been filed by BII on or prior to the date
hereof. BII has duly and timely paid all taxes and other governmental charges,
and all interest and penalties with respect thereto, required to be paid by BII
(whether by way of withholding or otherwise) to any federal, state, local or
other taxing authority (except to the extent the same are being contested in
good faith, and adequate reserves therefore have been provided in the BII
Financial Statements). As of the date hereof, all deficiencies proposed as a
result of any audits have been paid or settled.
(b) BII is not a party to, or bound by, or otherwise in any way
obligated under, any tax sharing or similar agreement.
(c) BII has not consented to have the provisions of Section 341(f)(2)
of the Code (or comparable state law provisions) apply to it, and BII has not
agreed or been requested to make any adjustment under Section 481(c) of the Code
by reason of a change in accounting method or otherwise.
(d) As of the date hereof, BII has made all payments required to be
made by it under that certain IRS Form 433-D Installment Agreement, dated as of
November 11, 1996.
4.21 COMPLIANCE WITH APPLICABLE LAWS. BII holds all material permits,
licenses, variances, exemptions, orders and approvals of all Governmental
Entities necessary to own, lease or operate all of the assets and properties of
BII, and to carry on the BII Business as now conducted (the "BII Permits"). To
the knowledge of BII, BII is in material compliance with all applicable laws,
ordinances and regulations and the terms of the BII Permits. Schedule 4.21
-------------
hereto sets forth a list of the BII Permits, a true and correct copy of each of
which has been provided to Parent.
4.22 BOARD OF DIRECTOR/SHAREHOLDER CONSENT. Both the Board of Directors BII
and the BII Shareholders have, by all requisite action under applicable law,
adopted and approved this Agreement and the transactions contemplated hereby
(including, without limitation, the Merger).
14
4.23 BROKERS. Except as set forth on Schedule 4.23 hereto, no broker or
-------------
finder is entitled to any broker's or finder's fee or other commission in
connection with the transactions contemplated by this Agreement as a result of
arrangements made by or on behalf of BII.
4.24 ENVIRONMENTAL MATTERS.
(a) To the knowledge of BII, no real property currently or formerly
owned or operated by BII is contaminated with any Hazardous Substances (as
hereinafter defined);
(b) BII is not a party to any litigation or administrative proceeding
nor, to the knowledge of BII, is any litigation or administrative proceeding
threatened against it, that, in either case, asserts or alleges that BII (i)
violated any Environmental Laws (as hereinafter defined); (ii) is required to
clean up, remove or take remedial or other response action due to the disposal,
deposit, discharge, leak or other release of any Hazardous Substances; or (iii)
is required to pay all or a portion of the cost of any past, present or future
cleanup, removal or remedial or other action that arises out of or is related to
the disposal, deposit, discharge, leak or other release of any Hazardous
Substances.
(c) To the knowledge of BII, there are not now nor have there
previously been tanks or other facilities on, under, or at any real property
owned, leased, used or occupied by BII containing materials that, if known to be
present in soils or ground water, would require cleanup, removal or other
remedial action under Environmental Laws.
(d) To the knowledge of BII, there are no conditions existing
currently that would subject BII or the BII Shareholders ,(as owners of BII) to
damages, penalties, injunctive relief or cleanup costs under any Environmental
Laws, or that would require cleanup, removal, remedial action or other response
pursuant to Environmental Laws.
(e) To the knowledge of BII, BII is not subject to any judgment, order
or citation related to or arising out of any Environmental Laws and has not been
named or listed as a potentially responsible party by any Governmental Entity in
a matter related to or arising out of any Environmental Laws.
(f) For purposes of this Agreement, (i) the term "Environmental Law"
means any federal, state or local law (including statutes, regulations,
ordinances, codes, rules, judicial opinions and other governmental restrictions
and requirements), relating to the discharge of air pollutants, water
pollutants, noise, odors or process waste water, or otherwise relating to the
environment or hazardous or toxic substances; and (ii) the term "Hazardous
Substance" means any toxic or hazardous
15
substance that is regulated by or under authority of any Environmental Law,
including, without limitation, any petroleum products, asbestos or
polychlorinated biphenyls.
4.25 INTEREST IN CUSTOMERS, SUPPLIERS AND COMPETITORS. Except as provided
in Schedule 4.25 hereto, no officer, director, shareholder or employee of BII,
-------------
and no family member of any of the foregoing, has any direct or indirect
material interest in any material customer, supplier or competitor of BII, or in
any Person from whom or to whom BII leases any real or personal property, or in
any other Person with whom BII is doing business, whether directly or indirectly
(including, without limitation, as a debtor or creditor), whether in existence
as of the date hereof or proposed, other than the ownership of stock of publicly
traded corporations that does not exceed 1% of the issued and outstanding stock
of such corporation.
4.26 ACCOUNTS RECEIVABLE. All accounts, notes, contracts and other
receivables of BII (collectively, "BII Accounts Receivable") were acquired by
BII in the ordinary course of business arising from bona fide transactions
completed in accordance with the terms and provisions contained in any documents
related thereto. To the knowledge of BII, there are no set-offs, counterclaims
or disputes asserted with respect to any BII Accounts Receivable that would
result in claims in excess of the reserve for bad debts set forth on the BII
Financial Statements and, to the knowledge of BII, subject to such reserve, all
BII Accounts Receivable are collectible in full. Schedule 4.26 hereto is a true
-------------
and complete aging report prepared as of April 16, 1997, which shows the time
elapsed since invoice date for all BII Accounts Receivable.
4.27 ACCOUNTS PAYABLE. All material accounts, notes, contracts and other
amounts payable of BII (collectively, "BII Accounts Payable") are currently
within their respective terms, and are neither in default nor otherwise past due
by more than 90 days. Schedule 4.27 hereto is a true and complete aging report
-------------
prepared as of April 16, 1997, which shows the time elapsed since invoice date
for all BII Accounts Payable.
4.28 INSURANCE. BII currently maintains, in full force and effect, all
insurance policies that are either (a) required to be maintained for the conduct
of the BII Business or the ownership of BII's property (both real and personal);
or (b) otherwise maintained by companies engaged in a business comparable to the
BII Business (collectively, the "BII Insurance Policies"). The BII Insurance
Policies are listed on Schedule 4.28 hereto, and true and complete copies of all
-------------
BII Insurance Policies have previously been provided to Parent. BII (i) is not
in default regarding the provisions of any BII Insurance Policy; (ii) has paid
all premiums due thereunder; and (iii) has not failed to present any notice or
present any material claim thereunder in a due and timely fashion.
16
4.29 BANKRUPTCY. BII hereby represents and warrants that it has not, and
each BII Shareholder hereby represents and warrants that he or she has not,
filed a petition or request for reorganization or protection or relief under the
bankruptcy laws of the United States or any state or territory thereof, made any
general assignment for the benefit of creditors, or consented to the appointment
of a receiver or trustee, including a custodian under the United States
bankruptcy laws, whether such receiver or trustee is appointed in a voluntary or
involuntary proceeding.
4.30 BII DEBT. As of the date one day prior to the date hereof, the
aggregate amount of BII Debt (as hereinafter defined) outstanding was no greater
than $2,365,680. For purposes of this Agreement, the term "BII Debt" shall mean
and include (i) the aggregate amount of debt for borrowed money (including any
bank overdrafts), customer advances (other than advances made by Interactive
Channel, Inc.), deferred income and capitalized leases of BII, together with
accrued interest on any of the foregoing; (ii) the aggregate purchase price
required to be paid by BII for the repurchase of certain of the outstanding
capital stock of BII pursuant to the Redemption Agreements; and (iii) the amount
required to be paid for the BoxTop Entertainment license (as described on
Schedule 4.14 hereto); provided, however, that BII Debt shall be reduced by any
--------------
cash of BoxTop (determined in accordance with generally accepted accounting
principles) as of such date.
4.31 ACCREDITED INVESTORS; INVESTMENT PURPOSE. Each BII Shareholder
represents that he is an "accredited investor" as such term is defined in Rule
501 of Regulation D promulgated by the Securities and Exchange Commission under
the Securities Act of 1933, as amended (the "Securities Act"). Each BII
Shareholder further represents that he is acquiring the Parent Stock solely for
his own account for investment and not with a view to, or for sale in connection
with, any distribution thereof. Each BII Shareholder agrees that he will not,
directly or indirectly, offer, transfer, sell, pledge, hypothecate or otherwise
dispose of any Parent Stock (or solicit any offers to buy, purchase or other
acquire or take a pledge of any such shares) except in compliance with the
Securities Act and the rules and regulations thereunder, other applicable laws,
rules and regulations, and the First Amended and Restated Stockholders'
Agreement of Parent, as amended effective the date hereof (the "Stockholders'
Agreement").
4.32 RESTRICTIONS ON TRANSFER. Each BII Shareholder acknowledges that (a)
the Parent Stock received by him hereunder has not been registered under the
Securities Act; (b) the Parent Stock may be required to be held indefinitely,
and each BII Shareholder must continue to bear the economic risk of the
investment in such shares unless such shares are subsequently registered under
the Securities Act or an exemption from such registration is available; (c)
there may not be any public market
17
for the Parent Stock in the foreseeable future; (d) Rule 144 promulgated under
the Securities Act is not presently available with respect to sales of any
securities of Parent, and such Rule is not anticipated to be available in the
foreseeable future; (e) when and if Parent Stock may be disposed of without
registration in reliance upon Rule 144, such disposition generally can be made
only in limited amounts and in accordance with the terms and conditions of such
Rule; (f) if the exemption afforded by Rule 144 is not available, public sale
without registration will require the availability of an exemption under the
Securities Act; (g) the Parent Stock is subject to the terms and conditions of
the Stockholders, Agreement; (h) restrictive legends shall be placed on the
certificates representing Parent Stock; and (i) a notation shall be made in the
appropriate records of Parent indicating that Parent Stock is subject to
restrictions on transfer and, if Parent should in the future engage the services
of a stock transfer agent, appropriate stop-transfer instructions will be issued
to such transfer agent with respect to Parent Stock.
4.33 ABILITY TO BEAR RISK; ACCESS TO INFORMATION; SOPHISTICATION. Each BII
Shareholder represents and warrants that (a) his financial situation is such
that he can afford to bear the economic risk of holding Parent Stock acquired by
him hereunder for an indefinite period; (b) he can afford to suffer the complete
loss of such Parent Stock; (c) he has been granted the opportunity to ask
questions of, and receive answers from, representatives of Sub and Parent
concerning the terms and conditions of the Parent Stock and to obtain any
additional information that he deems necessary; (d) his knowledge and experience
in financial business matters is such that he is capable of evaluating the
merits and risk of ownership of the Parent Stock; and (e) he has carefully
reviewed the terms of the Stockholders' Agreement and has evaluated the
restrictions and obligations contained therein.
4.34 CONFIDENTIAL MEMORANDUM. Each of the BII Shareholders represents and
warrants that he or she (i) has received a copy of the Confidential Memorandum,
dated May 21, 1997 (the "Memorandum"); (ii) has carefully examined the
Memorandum, and has had an opportunity to ask questions of, and receive answers
from, representatives of Parent, and to obtain additional information concerning
Parent and its Subsidiaries (as hereinafter defined); (iii) does not require
additional information regarding Parent or its Subsidiaries in connection with
the Merger.
4.35 DISCLOSURE. No statement of fact by BII contained in this Agreement
and no written statement of fact furnished by BII to Parent or Sub pursuant to
or in connection with this Agreement contains contain any untrue statement of a
material fact or omits to state a material fact necessary in order to make the
statements herein or therein contained not misleading.
18
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PARENT AND SUB
Each of Parent and Sub represents and warrants to BII and the BII
Shareholders, which representations and warranties shall survive the Closing in
accordance with Section 9.1 of this Agreement, as follows:
5.1 ORGANIZATION AND QUALIFICATION. Each of Parent and its Subsidiaries (as
defined in Section 9.12 hereof) is a corporation duly organized, validly
existing and in good standing under the laws of the state of its incorporation.
Each of Parent and its Subsidiaries has the requisite corporate power and
authority to carry on its business as it is now being conducted and is duly
qualified or licensed to do business, and is in good standing, in each
jurisdiction where the character of its properties owned or held under lease or
the nature of its activities makes such qualification necessary. Complete and
correct copies of the Certificates of Incorporation and Bylaws of Parent and Sub
as in effect on the date hereof are attached as Schedule 5.1 hereto. The minute
------------
books of Parent and Sub, a true and complete copy of each of which has been made
available to BII, (a) accurately reflects all action taken by the directors and
shareholders of Parent at meetings of Parent's Board of Directors or
shareholders, as the case may be; and (b) contains true and complete copies of,
or originals of, the respective minutes of all meetings or consent actions of
the directors or shareholders.
5.2 AUTHORITY. Each of Parent and Sub has the necessary corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby by each of Parent
and Sub have been duly and validly authorized and approved by their respective
Board of Directors and shareholders, and no other corporate or shareholder
proceedings on the part of either Parent or Sub, or their respective boards of
directors or shareholders, are necessary to authorize or approve this Agreement
or to consummate the transactions contemplated hereby. This Agreement has been
duly executed and delivered by each of Parent and Sub, and assuming the due
authorization, execution and delivery by BII and the BII Shareholders,
constitutes the valid and binding obligation of each of Parent and Sub,
enforceable against each of Parent and Sub in accordance with its terms.
5.3 NO CONFLICTS, REQUIRED FILINGS AND CONSENTS. Except as set forth on
Schedule 5.3 hereto, none of the execution and delivery of this Agreement by
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Parent or Sub, the consummation by Parent and Sub of the transactions
contemplated hereby or compliance by Parent and Sub with any of the provisions
hereof Will:
19
(a) conflict with or violate the Certificate of Incorporation or
Bylaws of Parent or Sub, or the organizational documents of any other
Subsidiaries;
(b) result in a violation of any statute, ordinance, rule, regulation,
order, judgment or decree applicable to Parent or its Subsidiaries, or by which
Parent, any of its Subsidiaries, or their respective properties or assets may be
bound or affected;
(c) result in a violation or breach of, or constitute a default (or an
event that, with notice or lapse of time or both, would become a default) under,
or give to others any rights of termination, amendment, acceleration or
cancellation of, any note, bond, mortgage, indenture, or any material contract,
agreement, arrangement, lease, license, permit, judgment, decree, franchise or
other instrument or obligation to which Parent or any of its Subsidiaries is a
party or by which Parent, any of its Subsidiaries or their respective properties
may be bound or affected (collectively, for purposes of this Section 5.3, an
"IXL Agreement");
(d) result in the creation of any Lien on any of the property or
assets of Parent or any of its Subsidiaries; or
(e) require any Consent of (i) any Governmental Entity (except for
(x) compliance with any applicable requirements of any applicable securities
laws, and (y) the filing of the Certificate of Merger pursuant to the DGCL and
CCC; or (ii) any other Person.
5.4 LITIGATION. Except as set forth on Schedule 5.4 hereto, there is no
-------------
suit, action, claim, investigation or proceeding pending or, to the knowledge of
Parent, threatened against or affecting Parent or its Subsidiaries, nor is there
any judgment, decree, injunction or order of any applicable Governmental Entity
or arbitrator outstanding against Parent or its Subsidiaries that, either
individually or in the aggregate, would have a material adverse effect on the
assets, business or financial condition of Parent and its Subsidiaries, taken as
a whole.
5.5 BROKERS. Except as disclosed on Schedule 5.5 hereto, No broker or
-------------
finder is entitled to any broker's or finder's fee in connection with the
transactions contemplated by this Agreement based upon arrangements made by or
on behalf of Parent or Sub.
5.6 PARENT STOCK.
(a) As of the date hereof the authorized capital stock of Parent
consists of (i) (A) 250,000 shares of Class A Common Stock, $.01 par value (the
"Class A Common Stock"), of which no
20
shares are validly issued and outstanding, and (B) 1,000,000 shares of Class B
Common Stock, $.01 par value, of which 45,292 shares are validly issued and
outstanding (without taking into account any shares of Parent Stock to be issued
pursuant to this Agreement), fully paid and nonassessable; and (ii) 250,000
shares of Class A Convertible Preferred stock, of which 157,760 shares are
validly issued and outstanding, fully paid and nonassessable. All outstanding
capital stock of Parent was issued in accordance with applicable federal and
state securities laws. Except as set forth on Schedule 5.6(a) hereto, there are
----------------
no options, warrants, calls, agreements, commitments or other rights presently
outstanding that would obligate Parent to issue, deliver or sell shares of its
capital stock, or to grant, extend or enter into any such option, warrant, call,
agreement, commitment or other right. In addition to the foregoing, as of the
date hereof, Parent has no bonds, debentures, notes or other indebtedness issued
or outstanding that have voting rights in Parent.
(b) The holders of record as of the Effective Time of the outstanding
shares of capital stock of Parent, together with the number of shares of capital
stock then outstanding, are set forth on a pro forma basis on Schedule 5.6(b)
---------------
hereto.
(c) When delivered to the BII Shareholders in accordance with the
terms hereof, the Parent Stock will (i) be duly authorized, fully paid and
nonassessable, (ii) represent 43.0% of the issued and outstanding shares of
Parent Stock, (iii) represent, on an as-converted and fully diluted basis, 14.4%
of the issued and outstanding capital stock of Parent, and (iv) be free and
clear of all Liens.
5.7 SUBSIDIARIES. Except as set forth on Schedule 5.7 hereto, Parent has
-------------
no subsidiaries and does not otherwise own or control, directly or indirectly,
any equity interest in, or any security convertible into an equity interest in,
any Entity. Schedule 5.7 hereto lists the name of each of the Subsidiaries of
-------------
Parent, and indicates their respective jurisdictions of incorporation and
authorized and outstanding capitalization.
5.8 FINANCIAL STATEMENTS. Parent has heretofore furnished BII with a true
and complete copy of (a) the audited financial statements of iXL Interactive
Excellence, Inc. (n/k/a iXL, Inc.) for the years ended December 31, 1993, 1994
and 1995, and for the-four-month period ending April 30, 1996; (b) audited
combined financial statements for Creative Video, Inc. (n/k/a iXL, Inc.),
Creative Video Library, Inc. and Entrepreneur Television, Inc. for the years
ending December 31, 1993, 1994 and 1995, and for the four-month period ending
April 30, 1996; (c) the audited consolidated financial statements for Parent and
its Subsidiaries for the eight months ended December 31, 1996; and (d) the
unaudited consolidated financial statements for Parent and its Subsidiaries,
dated March 31, 1997 (collectively herein referred to as the "Parent Financial
Statements"). The Parent Financial
21
statements have been prepared in accordance with generally accepted accounting
principles (except, in the case of the unaudited financial statements, for the
exclusion of footnotes and normal year-end adjustments) consistently followed
throughout the period indicated, and present fairly, in all material respects,
the financial position and operating results of Parent and its Subsidiaries as
of the dates, and during the periods, indicated therein.
5.9 ABSENCE OF CHANGES. Except as provided in Schedule 5.9 hereto and
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except as contemplated by this Agreement, since March 31, 1997, (a) neither
Parent nor any of its Subsidiaries has entered into any transaction that was not
in the ordinary course of business; (b) there has been no sale, assignment,
transfer, mortgage, pledge, encumbrance or lease of any material assets or
properties of Parent or any of its Subsidiaries; (c) there has been (i) no
declaration or payment of a dividend, or any other declaration, payment or
distribution of any type or nature to any shareholder of Parent in respect of
its stock, whether in cash or property, and (ii) no purchase or redemption of
any shares of the capital stock of Parent; (d) there has been no declaration,
payment, or commitment for the payment by Parent or its Subsidiaries of a bonus
or other additional salary, compensation, or benefit to any employee of Parent
or any of its Subsidiaries that was not in the ordinary course of business; (e)
there has been no release, compromise, waiver or cancellation of any debts to or
claims by Parent or any of its Subsidiaries, or waiver of any rights of Parent
or any of its Subsidiaries, in each case having a value in excess of $10,000;
(f) there have been no capital expenditures by Parent in excess of $100,000 for
any single item, or $250,000 in the aggregate; (g) there has been no change in
accounting methods or practices or revaluation of any assets of Parent or its
Subsidiaries (other than Parent Accounts Receivable (as defined in Section 5.26
hereof) written down in the ordinary course of business that are not in excess
of $10,000 for any single Parent Account Receivable and $25,000 in the
aggregate); (h) there has been no material damage, destruction or loss of
physical property (whether or not covered by insurance) adversely affecting the
business or the operations of Parent or any of its Subsidiaries (referred to in
this Article V as "Parent's Business"); (i) there has been no loan by Parent or
any of its Subsidiaries, or guaranty by Parent or any of its Subsidiaries of any
loan, to any employee of Parent or any of its Subsidiaries or to any Person
related to Parent's Business; (i) to the knowledge of Parent, neither Parent nor
any of its Subsidiaries has ceased to transact business with any customer that,
as of the date of such cessation, represented more than 5% of the annual gross
revenues of Parent and its Subsidiaries, taken as a whole; (k) there has been
no termination or resignation of any key employee or officer of Parent or any of
its Subsidiaries, and to the knowledge of Parent no such termination or
resignation is threatened; (1) there has been no amendment or termination of any
material oral or written
22
contract, agreement or license related to the Parent's Business, to which Parent
or any of its Subsidiaries is a party or by which Parent or any of its
Subsidiaries is bound, except in the ordinary course of business; (m) neither
Parent nor any of its Subsidiaries has failed to satisfy any of its debts,
obligations or liabilities related to Parent's Business, or the assets of Parent
or any of its Subsidiaries, as the same become due and owing (except for Parent
Accounts Payable (as defined in Section 5.27 hereof), payable in accordance with
past practices and in the ordinary course of business); (n) there has been no
agreement or commitment by Parent or any of its Subsidiaries to do any of the
foregoing; and (o) there has been no other event or condition of any character
pertaining to and materially affecting Parent's Business or the assets or
financial condition of Parent and its Subsidiaries, taken as a whole.
5.10 UNDISCLOSED LIABILITIES. Except as set forth on Schedule 5.10 hereto,
-------------
neither Parent nor any of its Subsidiaries has any debt, liability or obligation
of any kind, whether accrued, absolute or otherwise, including, without
limitation, any liability or obligation on account of taxes or any governmental
charges or penalty, interest or fines, except (a) liabilities not in excess of
$300,000 (whether individually or in the aggregate) incurred in the ordinary
course of business after March 31, 1997; (b) liabilities reflected on the Parent
Financial Statements; and (c) liabilities incurred as a result of the
transactions contemplated by this Agreement.
5.11 TITLE TO PROPERTIES. Except as set forth on Schedule 5.11 hereto,
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Parent or one of its Subsidiaries has good and marketable title to all property
and assets used in Parent's Business (other than Parent Real Property (as
defined in Section 5.14 hereof)), and good title to all of its leasehold
interests, in each case, free and clear of any and all Liens other than liens
for taxes not yet due and payable.
5.12 EQUIPMENT. Schedule 5.12 hereto sets forth a true and correct list of
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all items of tangible personal property (including, without limitation, computer
hardware) necessary for or used in the operation of Parent's Business in the
manner in which it has been and is now operated by Parent (the "Parent
Equipment"), except for personal property having a net book value of less than
$1,000. Except as set forth on Schedule 5.12, each material item of Parent
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Equipment is in good condition and repair, ordinary wear and tear excepted.
5.13 INTELLECTUAL PROPERTY.
(a) Except as set forth on Schedule 5.13 hereto, Parent or one of its
-------------
Subsidiaries owns, or is validly licensed or otherwise has the right to use or
exploit, all Parent Intellectual Property Rights (as hereinafter defined), free
of any obligation to make any payment (whether of a royalty, license
23
fee, compensation or otherwise). No claims are pending or, to the knowledge of
Parent, threatened, that Parent or any of its Subsidiaries is infringing or
otherwise adversely affecting the rights of any Person with regard to any Parent
Intellectual Property Right. Parent and its Subsidiaries have used commercially
reasonable efforts to protect the Intellectual Property Rights, and, to the
knowledge of Parent, no Person is infringing the rights of Parent or its
Subsidiaries with respect to any Parent Intellectual Property Right. To the
knowledge of Parent, neither Parent nor any employee, agent or independent
contractor of Parent has used, appropriated or disclosed, directly or
indirectly, any trade secrets or other proprietary or confidential information
of any other Person, or otherwise violated any confidential relationship with
any other Person. To the knowledge of Parent, use of the names "iXL, Inc.",
"IXL Holdings, Inc." and the other names used in the conduct of Parent's
Business do not infringe upon the rights of any Person. For purposes of this
Section 5.13(a), the term "Parent Intellectual Property Right(s)" shall mean all
material proprietary technology, trade secrets, know-how, patents, patent
rights, trademarks, trademark rights, trade names, trade name rights, service
marks, service xxxx rights, copyrights, and other intellectual property rights
used or required to be used by Parent or its Subsidiaries in the conduct of
Parent's Business.
(b) Except as set forth on Schedule 5.13 hereto, Parent and/or its
-------------
Subsidiaries currently licenses, or otherwise has the legal right to use, all of
the Parent Software (as hereinafter defined) (including any upgrades,
alterations or enhancements with respect thereto), and all of the Parent
Software is being used in compliance with any applicable licenses or other
agreements. For purposes of this Section 5.13(b), the term "Parent Software"
shall mean all material computer software used or required to be used in the
conduct of Parent's Business.
5.14 REAL PROPERTY. Except as set forth on Schedule 5.14 hereto:
-------------
(a) Parent or one of its Subsidiaries has good and marketable,
insurable fee simple title or good and valid leasehold interest in all real-
property (including all buildings, improvements and fixtures thereon) used in
the operation of Parent's Business (the "Parent Real Property"). Attached to
Schedule 5.14 are all policies of title insurance currently existing in favor of
-------------
Parent or one of its Subsidiaries with respect to the Parent Real Property.
Except for liens for current taxes not yet due and the items set forth on
Schedule 5.14, there are no Liens on any of the Parent Real Property or the
--------------
interest of Parent or one of its Subsidiaries therein.
(b) There are no parties in possession of any portion of the Parent
Real Property other than Parent or one of its
24
Subsidiaries, whether as lessees, tenants at will, trespassers or otherwise.
(c) There are water, sewer, gas and electrical lines presently in
existence on the Parent Real Property that are sufficient to service adequately
the operations of Parent Business as presently operated in each building located
on the Parent Real Property.
(d) To the knowledge of Parent, there is no pending or threatened
condemnation or similar proceeding affecting the Parent Real Property or any
portion thereof, and, to the knowledge of Parent, no such action is presently
contemplated.
(e) To the knowledge of Parent, there are no laws, ordinances,
restrictions, judicial or administrative actions, actions by adjacent
landowners, or natural or artificial conditions upon the Parent Real Property,
or any other fact or condition, that would have a material adverse effect upon
the use of the Parent Real Property for the operation of Parent's Business.
(f) Parent has not received any notice from any insurance company of
any defects or inadequacies in the Parent Real Property or any part thereof that
would materially adversely affect the insurability of Parent's or its
Subsidiaries' interest in the Parent Real Property or the premiums for the
insurance thereof.
(g) To the knowledge of Parent, neither Parent's nor its Subsidiaries,
use, operation and maintenance of the Parent Real Property violates any
restrictive covenants affecting the Parent Real Property, or any zoning,
building or other federal, state or municipal law, ordinance, regulation or
restriction.
(h) To the knowledge of Parent, there is no law, ordinance, order,
regulation or requirement now in existence, or, to the knowledge of Parent,
under active consideration by any Governmental Entity, that would require Parent
or its Subsidiaries (whether directly or under the provisions of any of the
Parent Leases (as hereinafter defined) or otherwise covering the Parent Real
Property) to make any material expenditure to modify or improve any of the
Parent Real Property to bring it into compliance therewith.
(i) To the knowledge of Parent, there are no structural, or material
electrical, mechanical, plumbing, or other defects in the buildings located on
the Parent Real Property and the buildings thereon are free from leaks.
5.15 LEASES. Schedule 5.15 hereto sets forth a list of all leases pursuant
-------------
to which Parent or its Subsidiaries lease, as lessor or lessee, real or personal
property used in operating
25
Parent's Business or otherwise (the "Parent Leases"). Copies of the Parent
Leases, which have previously been made available to BII, are true and complete
copies thereof. All of the Parent Leases are valid, binding and enforceable in
accordance with their respective terms against Parent or its Subsidiary, as
applicable (and, to the knowledge of Parent, against the other parties thereto),
and there is not under any such Lease any existing default by Parent or its
Subsidiaries, or, to the knowledge of Parent, by any other party thereto, or any
condition or event of that, with notice or lapse of time or both, would
constitute a default. None of Parent or its Subsidiaries has received written
notice that the landlord of any of the Parent Leases intends to cancel, suspend
or terminate the Parent Leases or to exercise or not exercise any options under
any of the Parent Leases.
5.16 CONTRACTS. Except as set forth on Schedule 5.16 hereto, neither Parent
--------------
nor any of its Subsidiaries is, directly or indirectly, a party (in its own name
or as a successor in interest), or otherwise bound by, any written or oral:
(a) material service agreement or commitment (including, without
limitation, agreements or commitments covering business and office equipment,
repairs, interior design, outdoor landscaping, graphics, sanitation, voice mail,
advertising, and vending machines);
(b) material supplier agreement or commitment (including, without
limitation, agreements or commitments involving office supplies, cleaning
supplies, food/refreshment supplies);
(c) material agreement or commitment with any customer of Parent or
its Subsidiaries (including without limitation any agreement or commitment
providing for a retainer) entered into on or prior to May 27, 1997;
(d) shareholder agreement (including voting agreements, proxies and
the like) covering the shareholders of Parent;
(e) employment agreement covering employees of Parent or any of its
Subsidiaries;
(f) agreement or commitment relating to computer systems, including
those relating to hardware, software, maintenance, and upgrades;
(g) agreement or commitment with a term of more than one year;
26
(h) merger or acquisition agreement or commitment whereby parent or
any of its subsidiaries acquired or disposed of (or will acquire or dispose of)
stock or assets;
(i) agreement or commitment on the part of Parent or any of its
Subsidiaries to loan money to, or to guarantee the indebtedness of, any third
party;
(j) agreement or commitment on the part of Parent or any of its
Subsidiaries to borrow money from, or receive a guarantee of indebtedness from,
any third party, including, without limitation, any agreement in connection
therewith creating a Lien on any of the property or assets of Parent or any of
its Subsidiaries;
(k) agreement or commitment containing covenants (i) limiting,
directly or indirectly, the freedom of Parent (or, to the knowledge of Parent, a
material employee of Parent or one of its Subsidiaries) or any of its
Subsidiaries to compete in any line of business in any geographical area; (ii)
limiting, directly or indirectly, the freedom of Parent or any of its
Subsidiaries to use any Parent Intellectual Property Right in any geographic
area; or (iii) requiring Parent, directly or indirectly, to share any profits or
revenues;
(1) material warranty arrangements (whether Parent or any of its
Subsidiaries is the provider or the recipient);
(m) agreement or commitment including dividend restrictions or other
negative covenants;
(n) indemnity agreements or commitments given or received by Parent
or any of its Subsidiaries; or
(o) any other material agreement or commitment relating to Parent,
any of its Subsidiaries or Parent's Business.
True and complete copies of each such written contract or commitment, and a
true and complete narrative description of any oral contract or commitments,
listed on Schedule 5.16 (collectively, the "Parent Contracts") have previously
-------------
been made available to BII. Neither Parent nor any of its Subsidiaries nor, to
the knowledge of Parent, any other party to any of the Parent contracts, (x) is
in default under (nor does there exist any condition that, with notice or lapse
of time or both, would cause such a default under) any of the Parent Contracts,
or (y) has waived any right it may have under any of the Parent Contracts, the
waiver of which would have a material adverse effect on the assets or financial
condition of Parent and its Subsidiaries, taken as a whole, or on Parent's
Business. All of the Parent Contracts constitute the valid and binding
obligation of Parent (or, if applicable, its Subsidiary), and, to the knowledge
of Parent, the other parties thereto. For purposes of
27
this Agreement, an agreement or commitment shall be deemed to be "material" to
the extent such agreement or commitment obligates Parent (or its Subsidiary, if
applicable) to pay, or entitles Parent (or its Subsidiary) to receive, in any
one year or in the aggregate, in excess of $25,000. In addition to the
foregoing, Parent hereby represents and warrants that the aggregate value of all
payment obligations, and rights to receive payments, under agreements, contracts
and commitments (whether oral or in writing) to which Parent or any of its
Subsidiaries is a party or by which any thereof is otherwise bound, that would
not be considered "material" in accordance with the preceding sentence, and that
are not listed on Schedule 5.16, is less than $300,000 (calculating such value
-------------
by adding together the value of rights and obligations, and not by determining
the net amount thereof).
5.17 DIRECTORS AND OFFICERS. Schedule 5.17 hereto sets forth a list, as of
-------------
the date of this Agreement, of the name of each director and officer of Parent
and each Subsidiary and the offices held by each.
5.18 [INTENTIONALLY OMITTED]
5.19 EMPLOYEE BENEFIT PLANS/LABOR RELATIONS.
(a) Except as disclosed in Schedule 5.19 hereto, there are no
-------------
employee benefit plans, agreements or arrangements maintained by Parent or any
of its Subsidiaries, including, without limitation, (i) "employee benefit
plans," within the meaning of Section 3(3) of ERISA; (ii) affirmative action
plans; (iii) current or deferred compensation, pension, profit sharing, vacation
or severance plans or programs; or (iv) medical, hospital, accident, disability
or death benefit plans (collectively, "Parent Benefit Plans"). All Parent
Benefit Plans are administered in accordance with, and are in material
compliance with, all applicable laws and regulations. No default exists with
respect to the obligations of Parent under any Parent Benefit Plans.
(b) Neither Parent nor any of its Subsidiaries is a party to any
collective bargaining agreement, no such agreement determines the terms and
conditions of employment of any employee of Parent or any of its Subsidiaries,
no collective bargaining agent has been certified as a representative of any of
the employees of Parent or any of its Subsidiaries, no representation campaign
or election is now in progress with respect to any employee of Parent or any of
its Subsidiaries and there are no labor disputes, grievances, controversies,
strikes or requests for union representation pending, or, to the knowledge of
Parent, threatened, relating to or affecting the Parent's Business. To the
knowledge of Parent, no event has occurred that could give rise to any such
dispute, controversy, strike or request for representation.
28
5.20 ERISA.
(a) All Parent Benefit Plans that are subject to ERISA have been
administered in accordance with, and are in material compliance with, the
applicable provisions of ERISA. Each of Parent Benefit Plans that is intended to
meet the requirements of Section 401(a) of the Code has been determined by the
Internal Revenue Service to meet such requirements within the meaning of such
provision. No Parent Benefit Plan is subject to Title IV of ERISA or Section 412
of the Code. Neither Parent nor any of its Subsidiaries has engaged in any non-
exempt "prohibited transactions," as such term is defined in Section 4975 of the
Code or Section 406 of ERISA, involving Parent Benefit Plans that would subject
Parent or any of its Subsidiaries to the penalty or tax imposed under Section
502(i) of ERISA or Section 4975 of the Code. Neither Parent nor any of its
Subsidiaries has engaged in any transaction described in Section 4069 of ERISA
within the last five years. Except as disclosed in Schedule 5.20 hereto or
-------------
pursuant to the terms of Parent Benefit Plans, neither the execution and
delivery of this Agreement nor the consummation of the transactions contemplated
hereby will (i) result in any payment (including, without limitation, severance,
unemployment compensation or golden parachute) becoming due to any director or
other employee of Parent or any of its Subsidiaries, (ii) increase any benefits
otherwise payable under any Parent Benefit Plan or (iii) result in the
acceleration of the time of payment or vesting of any such benefits to any
extent.
(b) No notice of a "reportable event," within the meaning of Section
4043 of ERISA for which the 30-day reporting requirement has not been waived,
has been required to be filed for any Parent Benefit Plan that is an "employee
pension benefit plan" within the meaning of Section 3(2) of ERISA and that is
intended to meet the requirements of Section 401(a) of the Code, or by any
entity that is considered one employer with Parent under Section 4001 of ERISA
or Section 414 of the Code (an "ERISA Affiliate"), within the 12-month period
ending on the date hereof. Neither Parent nor any Subsidiary has incurred any
liability to the Pension Benefit Guaranty Corporation in respect of any Parent
Benefit Plan that remains unpaid.
5.21 TAXES.
(A) Except as set forth on Schedule 5.21 hereto, all federal, state
-------------
and local income, franchise, excise, real and personal property and other tax
returns and reports, including extensions, required to have been filed by Parent
and its Subsidiaries (including, where applicable, consolidated returns) on or
prior to the date hereof have been duly and timely filed by or on behalf of
Parent and its Subsidiaries. All taxes and other governmental charges, and all
interest and penalties with respect thereto, required to be paid by Parent and
its Subsidiaries (whether by way of withholding or otherwise) to any federal,
29
state, local or other taxing authority have been paid by or on behalf of Parent
and its Subsidiaries (except to the extent the same are being contested in good
faith, and adequate reserves therefore have been provided in the Parent
Financial Statements). As of the date hereof, all deficiencies proposed as a
result of any audits have been paid or settled.
(b) Neither Parent nor any of its Subsidiaries is a party to, or
bound by, or otherwise in any way obligated under, any tax sharing or similar
agreement.
(c) Neither Parent nor any of its Subsidiaries has consented to have
the provisions of Section 341(f)(2) of the Code (or comparable state law
provisions) apply to it, and Parent has not agreed or been requested to make any
adjustment under Section 481(c) of the Code by reason of a change in accounting
method or otherwise.
5.22 COMPLIANCE WITH APPLICABLE LAWS. Parent or its Subsidiaries holds all
material permits, licenses, variances, exemptions, orders and approvals of all
Governmental Entities necessary to own, lease or operate all of the assets and
properties of Parent and its Subsidiaries, as appropriate, and to carry on
Parent's Business as now conducted (the "Parent Permits"). To the knowledge of
Parent, Parent and its Subsidiaries are in material compliance with all
applicable laws, ordinances and regulations and the terms of the Parent Permits.
Schedule 5.22 hereto sets forth a list of the Parent Permits, a true and correct
-------------
copy of each of which has been made available to BII.
5.23 BOARD OF DIRECTOR CONSENT. Both the Board of Directors of Parent and
Sub have, by all requisite action under applicable law, adopted and approved
this Agreement and the transactions contemplated hereby (including, without
limitation, the Merger).
5.24 ENVIRONMENTAL MATTERS.
(a) To the knowledge of Parent, no real property currently or
formerly owned or operated by Parent or its Subsidiaries is contaminated with
any Hazardous Substances;
(b) None of Parent or its Subsidiaries is a party to any litigation
or administrative proceeding or, to the knowledge of Parent, is any litigation
or administrative proceeding threatened against Parent or its Subsidiaries,
that, in either case, asserts or alleges that Parent or any of its Subsidiaries
(i) violated any Environmental Laws; (ii) is required to clean up, remove or
take remedial or other response action due to the disposal, deposit, discharge,
leak or other release of any Hazardous Substances; or (iii) is required to pay
all or a portion of the cost of any past, present or future cleanup, removal or
remedial or other action that arises out of or is
30
related to the disposal, deposit, discharge, leak or other release of any
Hazardous Substances.
(c) To the knowledge of Parent, there are not now, nor have there
previously been, tanks or other facilities on, under, or at any real property
owned, leased, used or occupied by Parent or any of its Subsidiaries containing
materials that, if known to be present in soils or ground water, would require
cleanup, removal or other remedial action under Environmental Laws.
(d) To the knowledge of Parent, there are no conditions existing
currently that would subject Parent or its Subsidiaries to damages, penalties,
injunctive relief or cleanup costs under any Environmental Laws, or that would
require cleanup, removal, remedial action or other response pursuant to
Environmental Laws.
(e) To the knowledge of Parent, neither Parent nor its Subsidiaries
is subject to any judgment, order or citation related to or arising out of any
Environmental Laws and,,to the knowledge of Parent, neither Parent nor its
Subsidiaries have been named or listed as a potentially responsible party by any
Governmental Entity in a matter related to or arising out of any Environmental
Laws.
5.25 INTEREST IN CUSTOMERS, SUPPLIERS AND COMPETITORS. Except as provided
in Schedule 5.25 hereto, no officer, director, shareholder or employee of Parent
-------------
or any of its Subsidiaries, and no family member of any of the foregoing, has
any direct or indirect material interest in any material customer, supplier or
competitor of Parent or any of its Subsidiaries, or in any Person from whom or
to whom Parent leases any real or personal property, or in any other Person with
whom Parent or any of its Subsidiaries is doing business, whether directly or
indirectly (including, without limitation, as a debtor or creditor), whether in
existence as of the date hereof or proposed, other than the ownership of stock
of publicly traded corporations that does not exceed 1% of the issued and
outstanding stock of such corporation.
5.26 ACCOUNTS RECEIVABLE. Except as set forth on Schedule 5.26 hereto, all
-------------
accounts, notes, contracts and other receivables of Parent (collectively,
"Parent Accounts Receivable") were acquired by Parent in the ordinary course of
business arising from bona fide transactions completed in accordance with the
terms and provisions contained in any documents related thereto. To the
knowledge of Parent, there are no set-offs, counterclaims or disputes asserted
with respect to any Parent Accounts Receivable that would result in claims in
excess of the reserve for bad debts set forth on the Parent Financial Statements
and, to the knowledge of Parent, subject to such reserve, all Parent Accounts
Receivable are collectible in full. Schedule 5.26 hereto is a true and complete
-------------
aging report prepared as of March
31
31, 1997 (or April 24, 1997, in the case of IXL-Memphis, Inc.), which shows the
time elapsed since invoice date for all Parent Accounts Receivable.
5.27 ACCOUNTS PAYABLE. All material accounts, notes, contracts and other
amounts payable of Parent and its Subsidiaries (collectively, "Parent Accounts
Payable") are currently within their respective terms, and are neither in
default nor otherwise past due by more than 90 days. Schedule 5.27 hereto is a
-------------
true and complete aging report prepared as of March 31, 1997 (or April 9, 1997,
in the case of IXL-Memphis, Inc.), which shows the time elapsed since invoice
date for all Parent Accounts Payable.
5.28 INSURANCE. Parent or one of its Subsidiaries currently maintains, in
full force and effect, all insurance policies that are either (a) required to be
maintained for the conduct of Parent's Business or the ownership of Parent's
property (both real and personal); or (b) otherwise maintained by companies
engaged in a business comparable to Parent's Business (collectively, the "Parent
Insurance Policies"). The Parent Insurance Policies are listed on Schedule 5.28
-------------
hereto, and true and complete copies of all Parent Insurance Policies have
previously been made available to BII. Neither Parent nor any of its
Subsidiaries (i) is in default regarding the provisions of any Insurance Policy;
(ii) has paid all premiums due thereunder; and (iii) has not failed to present
any notice or present any material claim thereunder in a due and timely fashion.
5.29 BANKRUPTCY. Neither Parent nor any of its Subsidiaries has filed a
petition or request for reorganization or protection or relief under the
bankruptcy laws of the United States or any state or territory thereof, made any
general assignment for the benefit of creditors, or consented to the appointment
of a receiver or trustee, including a custodian under the United States
bankruptcy laws, whether such receiver or trustee is appointed in a voluntary or
involuntary proceeding.
5.30 DISCLOSURE. No statement of fact by Parent or Sub contained in this
Agreement and no written statement of fact furnished or to be furnished by
Parent or Sub to BII pursuant to or in connection with this Agreement contains
or will contain any untrue statement of a material fact or omits or will omit to
state a material fact necessary in order to make the statements herein or
therein contained not misleading.
5.31 OWNERSHIP OF SUB; NO PRIOR ACTIVITIES. Sub was formed solely for the
purpose of engaging in the transactions contemplated by this Agreement. As of
the Effective Time, all of the outstanding capital stock of Sub will be owned by
Parent.
32
ARTICLE VI
ADDITIONAL AGREEMENTS
6.1 PUBLIC ANNOUNCEMENTS. The parties agree that, except as may otherwise
be required to comply with applicable laws and regulations (including, without
limitation, applicable securities laws), public disclosure of the transactions
contemplated by this Agreement shall be made only upon or after the consummation
of the Merger. Any such disclosure shall be coordinated between the parties, and
no party shall make any such disclosure without the prior consent of the other
parties, which consent shall not be unreasonably withheld or delayed.
6.2 EFFORTS; CONSENTS.
(a) Subject to the terms and conditions herein provided, and
fiduciary duties under applicable law, each of the parties hereto agrees to use
its reasonable efforts to take, or cause to be taken, all actions, and to do, or
cause to be done, all things necessary, proper or advisable, to consummate and
make effective as promptly as practicable the transactions contemplated by this
Agreement and the Merger c-ind to cooperate with each other in connection with
the foregoing. Without limiting the generality of the foregoing, each of BII,
the BII Shareholders and Parent shall use its or his reasonable efforts to (i)
obtain or cause to be obtained all Consents required to be obtained in
connection with the transactions contemplated by this Agreement, (ii) make or
cause to be made all required filings with applicable Governmental Entities, and
(iii) use its reasonable efforts to fulfill all conditions to this Agreement.
(b) Each of Parent and BII shall promptly provide the other with a
copy of any inquiry or request for information (including notice of any oral
request for information), pleading, order or other document either party
receives from any Governmental Entity with respect to the matters referred to in
this Section 6.2.
6.3 TRANSFER AND GAINS TAXES AND CERTAIN OTHER TAXES AND EXPENSES. Parent
agrees that, to the extent it is legally able to do so, the Surviving
Corporation will pay all real property transfer, gains and other similar taxes
and all documentary stamps, filing fees, recording fees and sales and use taxes,
if any, and any penalties or interest with respect thereto, payable in
connection with consummation of the Merger.
6.4 OPTIONS/WARRANTS.
(a) BII hereby covenants and agrees that, at the Effective Time, all
of the outstanding options, warrants and other rights to purchase capital stock
of BII (all of which are set forth on Schedule 4.3 hereto) (collectively, the
------------
"BII Stock
33
Rights") shall have been properly canceled, and, except for the right to receive
options or warrants (as the case may be) to acquire Parent Stock described in
Section 6.4(b) below, all rights and obligations thereunder shall have been
terminated.
(b) Parent hereby covenants and agrees that, at the Effective Time,
each of the holders of BII Stock Rights shall receive, as appropriate, either
(i) options to purchase that number shares of validly issued, fully paid and
nonassessable Parent Stock, at an exercise price per share, as is set forth on
Schedule 6.4(b) hereto, all of which shall have been issued pursuant to the IXL
---------------
Holdings, Inc. 1996 Stock Option Plan, as amended (the "Parent Stock Option
Plan"); and/or (ii) warrants to purchase that number of shares of validly
issued, fully paid and nonassessable Parent Stock, at an exercise price per
share, as is set forth on Schedule 6.4(b).
---------------
(c) In addition to the foregoing, at the Effective Time, Parent shall
issue options to purchase 4,000 shares of validly issued, fully paid and
nonassessable Parent Stock, at an exercise price of $250 per share, to those
Persons listed on Schedule 6.4(c) hereto, pursuant to the Parent.Stock Option
---------------
Plan. Parent hereby agrees and acknowledges that the options issued pursuant to
this subsection (c) shall be in addition to any options issued in connection
with acquisitions of other companies discussed by Parent and any of the BII
Shareholders.
6.5 BII DEBT. Parent hereby agrees that, as soon as reasonably
practicable after the Effective Time, Parent shall cause the BII Debt to be paid
or otherwise satisfied, other than BII Debt attributable to capital leases of
BII.
ARTICLE VII
CONDITIONS PRECEDENT
7.1 CONDITIONS TO OBLIGATION OF BII AND THE BII SHAREHOLDERS TO EFFECT THE
MERGER. The obligation of BII and the BII Shareholders to effect the Merger
shall be subject to the fulfillment at or prior to the Effective Time of the
following conditions:
(a) (i) the appropriate officers of Parent shall have executed and
delivered to BII at the Closing, a closing certificate and incumbency
certificate, substantially in the form of Exhibit "A-1" hereto (collectively
------------
"Parent's Closing Certificate"), and (ii) the appropriate officers of Sub shall
have executed and delivered to BII at the Closing, a closing certificate and
incumbency certificate, substantially in the form of Exhibit "A-2" hereto
------------
(collectively "Sub's Closing Certificate");
34
(b) Parent shall have obtained all of the Consents listed on Schedule
--------
7.1(b) hereto;
------
(c) Parent shall have executed and delivered at the Closing an Option
Agreement for each of the Persons listed on Schedule 7.1(c) hereto,
---------------
substantially in the form of Exhibit "B-" and Exhibit "B-2" hereto (each, an
------------ -------------
"Option Agreement");
(d) Parent shall have executed and delivered at the Closing a Warrant
Agreement for each of the Persons listed on Schedule 7.1(d) hereto,
---------------
substantially in the form of Exhibit "C" hereto (each, a "Warrant Agreement");
-----------
(e) BII shall have received a corporate certificate of good standing
for Parent and Sub, and a copy of the Articles of Incorporation of Parent and
Sub, both as certified by the Secretary of State of the State of Delaware;
(f) there shall have been delivered to the BII Shareholders, duly
executed by the required shareholders of Parent, the First Amendment to the
First Amended and Restated Stockholders' Agreement of Parent (the "Stockholders'
Agreement Amendment"), substantially in the form of Exhibit "D" hereto;
-----------
(g) there shall have been delivered to the BII Shareholders, duly
executed by Parent, a copy of an Agreement to Be Bound By the Registration
Rights Agreement, substantially in the form of Exhibit "E" hereto (the
-----------
"Agreement to Be Bound");
(h) there shall have been delivered to BII duly executed copies of
the Amendment to the Settlement Agreement and Mutual Release, dated as of the
date hereof, between BII and certain former shareholders of BII listed thereon
(the "Redemption Agreements"), and the transactions contemplated thereby shall
have been consummated in accordance with the terms thereof;
(i) Parent shall have complied with its obligations under Section
6.4(b), 6.4(c) and 6.5 hereof;
(j) Parent shall have duly executed and delivered to BII the
Assumption Agreement, dated of even date herewith, between Parent and BII;
(k) BII shall have received, at the Closing, a duly executed opinion
of counsel to Parent, substantially in the form of Exhibit "F" hereto ("Parent's
-----------
Opinion of Counsel"); and
(l) BII shall have received from Parent such other documents as BII's
counsel shall have reasonably requested, in form and substance reasonably
satisfactory to BII's counsel.
35
7.2 CONDITIONS TO OBLIGATIONS OF PARENT AND SUB TO EFFECT THE MERGER. The
obligations of Parent and Sub to effect the Merger shall be subject to the
fulfillment, at or prior to the Effective Time of the following conditions:
(a) the appropriate officers of BII shall have executed and delivered
to Parent at the Closing, a closing certificate, substantially in the form of
Exhibit "G" hereto (11BII's Closing Certificate");
-----------
(b) BII and the BII Shareholders shall have obtained or caused to be
obtained all of the Consents listed on Schedule 7.2(b) hereto;
---------------
(c) there shall have been delivered to Parent at the Closing, (i)
duly executed by each of the BII Shareholders, the Stockholders' Agreement
Amendment and the Agreement to Be Bound; and (ii) duly executed by each of the
Persons listed on Schedule 7.1(c) above, an Option Agreement;
---------------
(d) Parent shall have received (i) a corporate certificate of good
standing for BII, and (ii) a copy of the Articles of Incorporation of BII, both
as certified by the Secretary of State of California;
(e) Parent shall have received a Tax Clearance Certificate for BII,
that is valid as of the date hereof, issued by the State of California Franchise
Tax Board;
(f) the total amount of BII Debt outstanding as of the date one day
prior to the date hereof shall be no greater than $2,365,680;
(g) Parent shall have received duly executed copies of the Redemption
Agreements, and the transactions contemplated thereby shall have been
consummated in accordance with the terms thereof;
(h) BII shall have complied with its obligations under Section 6.4(a)
hereof (and Parent shall have received evidence thereof, in the case of the
surrender of BII Stock Rights);
(i) Parent shall have received, at the Closing, a duly executed
opinion of counsel to BII and the BII Shareholder, substantially in the form of
Exhibit "H" hereto ("BII's Opinion of Counsel"); and
-----------
(j) Parent shall have received from BII or the BII Shareholders, as
the case may be, such other documents as Parent's counsel shall have reasonably
requested, in form and substance reasonably satisfactory to Parent's counsel.
36
ARTICLE VIII
INDEMNIFICATION
8.1 INDEMNIFICATION BY PARENT.
(a) Parent shall indemnify and hold the BII Shareholders and BII's
directors, officers and employees (collectively, the "BII Indemnified Parties")
harmless from and against, and agree promptly to defend each of the BII
Indemnified Parties from and reimburse each of the BII Indemnified Parties for,
any and all losses, damages, costs, expenses, liabilities, obligations and
claims of any kind (including, without limitation, reasonable attorney fees and
other legal costs and expenses) (collectively a "BII Loss") that any of the BII
Indemnified Parties may at any time suffer or incur, or become subject to, as a
result of or in connection with:
(i) any breach or inaccuracy of any of the representations
and warranties made by Parent or Sub in or pursuant to this Agreement, or in any
instrument, certificate or affidavit delivered by Parent at the Closing in
accordance with the provisions hereof;
(ii) any failure by Parent or Sub to carry out, perform, satisfy
and discharge any of its respective covenants, agreements, undertakings,
liabilities or obligations under this Agreement or under any of the documents
and materials delivered by Parent pursuant to this Agreement; and
(iii) any suit, action or other proceeding arising out of, or in
any way related to, any of the matters referred to in this Section 8.1.
(b) Notwithstanding any other provision to the contrary Parent shall
not have any liability under Section 8.1(a) above (i) unless the aggregate of
all BII Losses for which Parent would be liable but for this sentence exceeds,
on a cumulative basis, an amount equal to $200,000, and then only to the extent
of such excess, (ii) for amounts in excess of $14,000,000 in the aggregate, and
(iii) unless the BII Shareholders have asserted a claim with respect to the
matters set forth in Section 8.1(a)(i), or 8.1(a)(iii) to the extent applicable
to Section 8.1(a)(i), within two years of the Effective Time, except with
respect to the matters arising under Sections 5.19, 5.20, 5.21 or 5.24 hereof,
in which event Parent must have asserted a claim within the applicable statute
of limitations. Notwithstanding any implication to the contrary contained
herein, the parties acknowledge and agree that a decrease in the value of Parent
Stock would not, by itself, constitute a BII Loss, unless and to the extent a
decrease in the value of Parent Stock has been demonstrated to be as a result
of, or in connection with, any event described in Sections 8.1(a)(i), (ii) or
(iii) above.
37
8.2 INDEMNIFICATION BY THE BII SHAREHOLDERS.
(a) Wall and Wyler (the "Controlling Shareholders") shall jointly and
severally, and the BII shareholders shall severally and not jointly, indemnify
and hold Parent, Sub, Surviving Corporation and their respective shareholders,
directors, officers and employees (collectively, the "Parent Indemnified
Parties") harmless from and against, and agree to promptly defend each of the
Parent Indemnified Parties from and reimburse each of the Parent Indemnified
Parties for, any and all losses, damages, costs, expenses, liabilities,
obligations and claims of any kind (including, without limitation, reasonable
attorney fees (collectively, a "Parent Loss") that any of the Parent Indemnified
Parties may at any time suffer or incur, or become subject to, as a result of or
in connection with:
(i) in the case of the Controlling Shareholders, any breach
or inaccuracy of any representations and warranties made by BII, Wall or Wyler
in or pursuant to this Agreement, or in any certificate or affidavit delivered
by the same at the Closing in accordance with the provisions hereof;
(ii) in the case of each BII Shareholder (including Wall and
Wyler individually), any breach or inaccuracy of any representations and
warranties made by such BII Shareholder in or pursuant to this Agreement
(specifically, the representations and warranties contained in Sections 4.3(b),
4.29, 4.31, 4.32, 4.33 and 4.34), or in any certificate or affidavit delivered
by the same at the Closing in accordance with the provisions hereof;
(iii) in the case of the Controlling Shareholders and, as
applicable, each BII Shareholder, any failure by BII or such BII Shareholder, as
applicable, to carry out, perform, satisfy and discharge any of their respective
covenants, agreements, undertakings, liabilities or obligations under this
Agreement or under any of the documents and materials delivered by BII pursuant
to this Agreement; and
(iv) any suit, action or other proceeding arising out of, or in
any way related to, any of the matters referred to in this Section 8.2.
(b) Notwithstanding the above, the BII Shareholders (including Wall
and Wyler individually and as Controlling Shareholders) shall riot have any
liability under Section 8.2(a) above (i) unless the aggregate of all Parent
Losses for which the BII Shareholders would be liable but for this sentence
exceeds, on a cumulative basis, an amount equal to $200,000, and then only to
the extent of such excess, (ii) for amounts in excess of $14,000,000 in the
aggregate, and (iii) unless Parent has asserted a claim with respect to the
matters set forth in Section 8.2(a)(i) or 8.2(a)(iii) (to the extent applicable
to Section
38
8.2(a)(i)) within two years of the Effective Time, except with respect to the
matters arising under Sections 4.18, 4.19, 4.20 or 4.24 hereof, in which event
Parent must have asserted a claim within the applicable statute of limitations.
8.3 NOTIFICATION OF CLAIMS; ELECTION TO DEFEND.
(a) A party entitled to be indemnified pursuant to Section 8.1 or 8.2
hereof, as the case may be (the "Indemnified Party"), shall notify the party
liable for such indemnification (the "Indemnifying Party") in writing of any
claim or demand (a "Claim") that the Indemnified Party has determined has given
or could give rise to a right of indemnification under this Agreement. Subject
to the Indemnifying Party's right to defend in good faith third party claims as
hereinafter provided, the Indemnifying Party shall satisfy its obligations under
this Article VIII within 30 days after the receipt of written notice thereof
from the Indemnified Party. Any amounts paid thereafter shall include interest
thereon for the period commencing at the end of such 30-day period and ending on
the actual date of payment, at a rate of 15 per annum, or, if lower, at the
highest rate of interest permitted by applicable law at the time of such
payment.
(b) If the Indemnified Party shall notify the Indemnifying Party of
any Claim pursuant to Section 8.3(a) hereof, and if such Claim relates to a
Claim asserted by a third party against the Indemnified Party that the
Indemnifying Party acknowledges is a Claim for which it must indemnify or hold
harmless the Indemnified Party under Section 8.1 or 8.2 hereof, as the case may
be, the Indemnifying Party shall have the right, at its sole cost and expense,
to employ counsel of its own choosing to defend any such Claim asserted against
the Indemnified Party; provided, however, that if the Indemnified Party (i)
-------- -------
reasonably believes that its interests with respect to a Claim (or any material
portion thereof) are in conflict with the interests of the Indemnifying Party
with respect to such Claim (or portion thereof), and (ii) promptly notifies the
Indemnifying Party, in writing, of the nature of such conflict, then the
Indemnified Party shall be entitled to choose, at the sole cost AND EXPENSE of
the Indemnifying Party, independent counsel to DEFEND such Claim (or the
conflicting portion thereof). The Indemnified Party shall have the right to
participate in the defense of any such Claim at its own expense (except to the
extent provided in the foregoing sentence), but the Indemnifying Party shall
retain control over such litigation (except as provided in the foregoing
sentence). The Indemnifying Party shall notify the Indemnified Party in writing,
as promptly as possible (but in any case before the due date for the answer or
response to a claim) after the date of the notice of claim given by the
Indemnified Party to the Indemnifying Party under Section 8.3(a) hereof of its
election to defend in good faith any such third party Claim. So long as the
Indemnifying Party is
39
defending in good faith any such Claim asserted by a third party against the
Indemnified Party, the Indemnified Party shall not settle or compromise such
Claim without the prior written consent of the Indemnifying Party. The
Indemnified Party shall cooperate with the Indemnifying Party in connection with
any such defense and shall make available to the Indemnifying Party or its
agents all records and other materials in the Indemnified Party's possession
reasonably required by it for its use in contesting any third party Claim;
provided, however, that the Indemnifying Party shall have agreed, in writing, to
-------- -------
keep such records and other materials confidential expect to the extent
required for defense of the relevant Claim. Whether or not the Indemnifying
Party elects to defend any such Claim, the Indemnified Party shall have no
obligations to do so. Within 30 days after a final determination (including,
without limitation, a settlement) has been reached with respect to any Claim
contested pursuant to this Section 8.2(b), the Indemnifying Party shall satisfy
its obligations with respect thereto. Any amounts paid thereafter shall include
interest thereon for the period commencing at the end of such 30-day period and
ending on the actual date of payment, at a rate of 15% per annum, or, if lower,
at the highest rate of interest permitted by applicable law at the time of such
payment.
ARTICLE IX
GENERAL PROVISIONS
9.1 SURVIVAL; RECOURSE. None of the agreements contained in this Agreement
shall survive the Merger, except that (i) the agreements contained in Section
2.3 hereof, Article III hereof and Section 6.4 hereof, the obligations to
indemnify contained in Article VIII hereof and the agreements of the Surviving
Corporation referred to in Sections 9.10 and 9.11 hereof, shall survive the
Merger indefinitely (except to the extent a shorter period of time is explicitly
specified therein) and (ii) the representations and warranties made in Articles
IV and V of this Agreement shall survive the Merger, and shall survive any
independent investigation by the parties, and any dissolution, merger or
consolidation of BII or Parent, and shall bind the legal representatives,
assigns and successors of BII, the BII Shareholders, Parent, for a period of two
years after the Closing Date (other than the representations and warranties
contained in Sections 4.18, 4.19, 4.20, 4.24, 5.19, 5.20, 5.21 and 5.24 hereof,
which shall survive for the applicable statute of limitations).
9.2 NOTICES. All notices or other communications under this Agreement
shall be in writing and shall be given (and shall be deemed to have been duly
given upon receipt) by delivery in Person, by telecopy (with confirmation of
receipt), or by registered or certified mail, postage prepaid, return receipt
requested, addressed as follows:
40
If to BII: BoxTop Interactive, Inc.
00000 Xxxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxx, President
Telecopy: 310/235-3999
with copies to: Weissmann, Wolff, Xxxxxxx, Xxxxxxx &
Xxxxxxxxx, LLP
0000 Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxx, Esq.
Telecopy: 310/550-7191
If to the BII To the address listed under the
Shareholders: signature line of the applicable BII
Shareholder
With copies to: Weissmann, Wolff, Xxxxxxx, Xxxxxxx &
Xxxxxxxxx, LLP
0000 Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxx, Esq.
Telecopy: 310/550-7191
If to Parent: IXL Holdings, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
Telecopy: 404/350-9823
With copies to: Xxxxxx & Xxxxxx, A Professional
Corporation
One Buckhead Plaza
0000 Xxxxxxxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
Telecopy: 404/233-5824
and to: Xxxxx & Company
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx XX, Esq.
Telecopy: 212/223-2379
41
If to Sub/Surviving
Corporation: IXL Merger Corp. III, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
Telecopy: 404/350-9823
With copies to: Xxxxxx & Xxxxxx, A Professional
Corporation
One Buckhead Plaza
0000 Xxxxxxxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
Telecopy: 404/233-5824
and to: Xxxxx & Company
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx XX, Esq.
Telecopy: 212/223-2379
or to such other address as any party may have furnished to the other parties in
writing in accordance with this Section.
9.3 ENTIRE AGREEMENT. This Agreement and the documents, schedules and
instruments referred to herein and to be delivered pursuant hereto constitute
the entire agreement between,the parties pertaining to the subject matter
hereof, and supersede all other prior agreements and understandings, both
written and oral, among the parties, or any of them, with respect to the subject
matter hereof. There are no other representations or warranties, whether written
or oral, between the parties in connection the subject matter hereof, except as
expressly set forth herein or made pursuant hereto.
9.4 ASSIGNMENTS; PARTIES IN INTEREST. Neither this Agreement nor any of
the rights, interests or obligations hereunder may be assigned by any of the
parties hereto (whether by operation of law or otherwise) without the prior
written consent of the other parties, except that the rights, interests, and
obligations of Sub hereunder may be assigned to any wholly owned Delaware
subsidiary of Parent without such prior consent. Subject to the preceding
sentence, this Agreement shall be binding upon and inure solely to the benefit
of each party hereto, and nothing in this Agreement, express or implied, is
intended to or shall confer upon any Person not a party hereto any right,
benefit or remedy of any nature whatsoever under or by reason of this Agreement,
except as otherwise provided herein.
42
9.5 FEES AND EXPENSES. All reasonable fees and expenses incurred in
connection with this Agreement and the transactions contemplated by this
Agreement shall be paid by the party incurring such fees or expenses; provided,
--------
however, that the reasonable fees and expenses of BII and the BII Shareholders
-------
shall be paid by Parent.
9.6 GOVERNING LAW. This Agreement, except to the extent that the CCC or
the DGCL is mandatorily applicable to the Merger or the rights of the
shareholders of BII or the other parties hereto with respect to the Merger,
shall be governed in all respects by the laws of the State of Georgia (without
giving effect to the provisions thereof relating to conflicts of law).
9. HEADINGS. The descriptive headings herein are inserted for convenience
of reference only and are not intended to be part of or to affect the meaning or
interpretation of this Agreement.
9.8 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which taken
together shall constitute a single agreement.
9.9 SEVERABILITY. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economics or legal substance of
the transactions contemplated hereby are not affected in any manner materially
adverse to any party. Upon determination that any term or other provision hereof
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible to the fullest extent permitted by
applicable law in an acceptable manner to the end that the transactions
contemplated hereby are fulfilled to the extent possible.
9.10 POST-CLOSING ACCESS. For a period of at least three years after the
Closing Date, the BII Shareholders and their agents and representatives shall
have reasonable access to the books and records of BII.
9.11 POST-CLOSING NOTICE. To the extent the Surviving Corporation receives
written notice of any event or circumstance that materially affects any of the
BII Shareholders, the Surviving Corporation shall promptly notify the affected
BII Shareholder of such matter, information, or event and shall provide them
with copies of all relevant documentation or correspondence in connection
thereto.
9.12 CERTAIN DEFINITIONS. As used in this Merger Agreement (a) the term
"Subsidiary" or "Subsidiaries" means, with respect to Parent, any Entity of
which Parent (either alone or through or
43
together with any other Subsidiary) owns, directly or indirectly, stock or other
equity interests the holders of which are generally entitled to more than 50* of
the vote for the election of the board of directors or other governing body of
such corporation or other legal entity (including, without limitation, Sub);
provided, however, that the terms "Subsidiary" and "Subsidiaries" shall not
-------- -------
include (i) University Netcasting, Inc., or (ii) BII; and (b) any representation
or warranty stated to be made "to the knowledge" of a party shall refer to such
party's knowledge following reasonable inquiry as to the matter in question;
provided, however, that the "knowledge of BII" shall mean the knowledge of
Wall, Wyler or Xxxx Xxxxx following reasonable inquiry.
- SIGNATURES ON THE FOLLOWING PAGE -
44
IN WITNESS WHEREOF, Parent, Sub and BII have caused this Agreement to be
signed by their respective officers thereunder duly authorized, and each BII
Shareholder has signed this Agreement, all as of the date first written above.
"BII"
BOXTOP INTERACTIVE, INC., a California
corporation
By: /s/ Xxxxx Xxxx
------------------------------------------
Title: President
---------------------------------------
(Corporate Seal]
"PARENT"
IXL HOLDINGS, INC., a Delaware corporation
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Xxxxx X. Xxxxxx, Executive Vice President
[Corporate Seal]
"SUB"
IXL MERGER CORP. III, INC., a Delaware
corporation
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Xxxxx X. Xxxxxx, Executive Vice President
[Corporate Seal]
- SIGNATURES CONTINUE ON THE FOLLOWING PAGE -
00
"XXX Xxxxxxxxxxx"
By: /s/ Xxxxx Xxxx
-------------------------------
Xxxxx Xxxx
Address: 0000 X. Xxxxxxx Xx
--------------------------
XX 00000
--------------------------
__________________________
By /s/ Xxxxx Xxxxx
-------------------------------
Xxxxx Xxxxx
Address: 000 Xxxxxx Xx.
--------------------------
Xxx Xxxxxxx, XX, 00000
--------------------------
__________________________
By: /s/ Xxxx Xxxxxx
-------------------------------
Xxxx Xxxxxx
Address: 0000 Xxxxx Xxx
--------------------------
Xxxxxx XX 00000
--------------------------
__________________________
By: /s/ Xxxx Xxxxx
-------------------------------
Xxxx Xxxxx
Address: 0000 X. Xxxxxx Xxx
--------------------------
Xxx Xxxxxxx XX 00000
--------------------------
__________________________
By: /s/ Xxxx Xxxxxxxxx
------------------------------
Xxxx Xxxxxxxxx
Address: 00000 Xxxxx Xxxxxx Xxxx
--------------------------
Suite 990
--------------------------
Xxx Xxxxxxx XX 00000
--------------------------
By: /s/ Xxxxxx Xxxxxxx
-------------------------------
Xxxxxx Xxxxxxx
Address: 00000 Xxxxxxxx Xxxx.
--------------------------
Suite 865
--------------------------
Xxx Xxxxxxx, XX 00000
--------------------------
- SIGNATURES CONTINUE ON THE FOLLOWING PAGE -
46
By: /s/ Xxxx Xxxxx, trustee
--------------------------------
Xxxx Xxxxx
Address: 00000 Xxxxxxx Xxxxxx
---------------------------
Xxx Xxxxxxx, XX 00000
---------------------------
___________________________
By: /s/ Xxxx Xxxxxxxxx, atty-in-fact
-------------------------------
Xxxxxxx X. Xxxxxxx
Address: 2121 Avenue of the Stars
--------------------------
Xxx Xxxxxxx, XX 00000
--------------------------
18th Floor
__________________________
By: /s/ Xxxx Xxxxx, atty-in-fact
-------------------------------
Xxxxx X. Xxxxxx
Address: 00000 Xxx Xxxxxxx Xxxx
--------------------------
Suite 606
--------------------------
Xxx Xxxxxxx XX 00000
--------------------------
By: /s/ Xxxxxxxxx Xxxx
-------------------------------
Xxxxxxxxx Xxxx
Address: 000 Xxxx 00xx Xx
--------------------------
N.Y 10024
--------------------------
__________________________
47
EXHIBITS
--------
Parent's Closing Certificate.................................... Exhibit A-1
Sub's Closing Certificate....................................... Exhibit A-2
Option Agreement................................................ Exhibit B-1
Option Agreement................................................ Exhibit B-2
Warrant Agreement............................................... Exhibit C
Stockholders' Agreement Amendment............................... Exhibit D
Agreement to Be Bound to Registration Rights Agreement.......... Exhibit E
Parent's Opinion of Counsel..................................... Exhibit F
BII's Closing Certificate....................................... Exhibit G
BII's Opinion of Counsel........................................ Exhibit H
SCHEDULE 4.1
ARTICLES OF INCORPORATION AND BYLAWS OF BII
SCHEDULE 4.3
HOLDERS OF BII STOCK AND BII STOCK RIGHTS
SCHEDULE 4.5
CONFLICTS, REQUIRED FILINGS AND CONSENTS OF BII
SCHEDULE 4.6
FINANCIAL STATEMENTS OF BII
SCHEDULE 4.7
EXCEPTIONS TO ABSENCE OF CHANGES OF BII
SCHEDULE 4.8
UNDISCLOSED LIABILITIES OF BII
SCHEDULE 4.9
------------
EXCEPTIONS TO TITLE TO PROPERTIES OF BII
SCHEDULE 4.10
-------------
BAD EQUIPMENT OF BII
SCHEDULE 4.12
-------------
LIENS ON REAL PROPERTY OF BII
SCHEDULE 4.13
-------------
LEASES OF BII
SCHEDULE 4.14
-------------
CONTRACTS OF BII
SCHEDULE 4.15
-------------
LIST OF DIRECTORS AND OFFICERS OF BII
2
SCHEDULE 4.16
-------------
PAYROLL INFORMATION OF BII
SCHEDULE 4.17
-------------
LITIGATION OF BII
SCHEDULE 4.18
-------------
EMPLOYEE BENEFIT PLANS/LABOR RELATIONS OF BII
SCHEDULE 4.19
-------------
ERISA ISSUES OF BII
SCHEDULE 4.21
-------------
PERMITS OF BII
SCHEDULE 4.23
-------------
BROKERS OF BII
SCHEDULE 4.25
-------------
INTEREST IN CUSTOMERS, SUPPLIERS & COMPETITORS OF BII
3
SCHEDULE 4.26
-------------
ACCOUNTS RECEIVABLE AGING REPORT OF BII
SCHEDULE 4.27
-------------
ACCOUNTS PAYABLE AGING REPORT OF BII
SCHEDULE 4.28
-------------
INSURANCE OF BII
SCHEDULE 5.1
------------
CERTIFICATE OF INCORPORATION AND BYLAWS OF PARENT AND SUB
SCHEDULE 5.3
------------
CONFLICTS, REQUIRED FILINGS AND CONSENTS OF PARENT AND SUB
SCHEDULE 5.4
------------
PARENT LITIGATION
SCHEDULE 5.5
------------
PARENT AND SUB BROKERS
4
SCHEDULE 5.6(A)
---------------
PARENT STOCK, OPTIONS, WARRANTS, ETC.
SCHEDULE 5.6(B)
---------------
PARENT STOCK - STOCKHOLDERS AS OF THE EFFECTIVE DATE
SCHEDULE 5.7
------------
SUBSIDIARIES OF PARENT
SCHEDULE 5.9
------------
EXCEPTIONS TO ABSENCE OF CHANGES OF PARENT OR SUB
SCHEDULE 5.10
-------------
PARENT UNDISCLOSED LIABILITIES
SCHEDULE 5.11
-------------
PARENT EXCEPTIONS TO TITLE TO PROPERTIES
SCHEDULE 5.12
-------------
BAD PARENT EQUIPMENT
5
SCHEDULE 5.13
-------------
EXCEPTIONS TO PARENT INTELLECTUAL PROPERTY RIGHTS/SOFTWARE
SCHEDULE 5.14
-------------
TITLE POLICIES FOR & LIENS ON PARENT REAL PROPERTY
SCHEDULE 5.15
-------------
PARENT LEASES
SCHEDULE 5.16
-------------
CONTRACTS OF PARENT
SCHEDULE 5.17
-------------
PARENT DIRECTORS AND OFFICERS
SCHEDULE 5.19
-------------
PARENT EMPLOYEE BENEFIT PLANS
SCHEDULE 5.20
-------------
EFFECT OF TRANSACTION ON PARENT BENEFIT PLANS UNDER ERISA
6
SCHEDULE 5.21
-------------
EXCEPTION TO FILING OF TAX RETURNS OF PARENT
SCHEDULE 5.22
-------------
PARENT PERMITS
SCHEDULE 5.25
-------------
PARENT INTEREST IN CUSTOMERS, SUPPLIERS AND COMPETITORS
SCHEDULE 5.26
-------------
PARENT ACCOUNTS RECEIVABLE AGING REPORT
SCHEDULE 5.27
-------------
PARENT ACCOUNTS PAYABLE AGING REPORT
SCHEDULE 5.28
-------------
PARENT INSURANCE
SCHEDULE 6.4(B)
---------------
OPTIONS/WARRANTS OF PARENT ISSUED TO HOLDER OF BII STOCK RIGHTS
7
SCHEDULE 6.4(C)
---------------
OPTIONS/WARRANTS OF PARENT ISSUED TO PERSONS NOT LISTED IN SCHEDULE 6.4(B)
SCHEDULE 7.1(B)
---------------
PARENT CONSENTS
SCHEDULE 7.1(C)
---------------
PERSONS TO SIGN AN OPTION AGREEMENT
SCHEDULE 7.1(D)
---------------
PERSONS TO SIGN A WARRANT AGREEMENT
SCHEDULE 7.2(B)
---------------
CONSENTS OF BII
8
