ACQUISITION AGREEMENT AND PLAN OF MERGER
DATED AS OF APRIL 19, 2000
BETWEEN
HIGH SPEED NET SOLUTIONS, INC.
AND
J.S.J. CAPITAL CORP.
TABLE OF CONTENTS
ARTICLE 1. The Merger
Section 1.1. The Merger
Section 1.2. Effective Time
Section 1.3. Closing of the Merger
Section 1.4. Effects of the Merger
Section 1.5. Board of Directors and Officers of HSNS
Section 1.6. Conversion of Shares
Section 1.7. Exchange of Certificates
Section 1.8. Taking of Necessary Action; Further Action
ARTICLE 2. Representations and Warranties of HSNS
Section 2.1. Organization and Qualification
Section 2.2. Capitalization of HSNS
Section 2.3.Authority Relative to this Agreement; Recommendation.
Section 2.4. SEC Reports; Financial Statements
Section 2.5. Information Supplied
Section 2.6. Consents and Approvals; No Violations
Section 2.7. No Default
Section 2.8. No Undisclosed Liabilities; Absence of Changes
Section 2.9. Litigation
Section 2.10. Compliance with Applicable Law
Section 2.11. Employee Benefit Plans; Labor Matters
Section 2.12. Environmental Laws and Regulations
Section 2.13. Tax Matters
Section 2.14. Title To Property
Section 2.15. Intellectual Property
Section 2.16. Insurance
Section 2.17. Vote Required
Section 2.18. Tax Treatment
Section 2.19. Affiliates
Section 2.20. Certain Business Practices
Section 2.21. Insider Interests
Section 2.22. Opinion of Financial Adviser
Section 2.23. Brokers
Section 2.24. Disclosure
Section 2.25. No Existing Discussion
Section 2.26. Material Contracts
ARTICLE 3. Representations and Warranties of JSJ.
Section 3.1. Organization and Qualification
Section 3.2. Capitalization of JSJ
Section 3.3.Authority Relative to this Agreement; Recommendation
Section 3.4. SEC Reports; Financial Statements
Section 3.5. Information Supplied
Section 3.6. Consents and Approvals; No Violations
Section 3.7. No Default
Section 3.8 No Undisclosed Liabilities; Absence of Changes
Section 3.9. Litigation
Section 3.10. Compliance with Applicable Law
Section 3.11. Employee Benefit Plans; Labor Matters
Section 3.12. Environmental Laws and Regulations
Section 3.13. Tax Matters
Section 3.14. Title to Property
Section 3.15. Intellectual Property
Section 3.16. Insurance
Section 3.17. Vote Required
Section 3.18. Tax Treatment
Section 3.19. Affiliates
Section 3.20. Certain Business Practices
Section 3.21. Insider Interests
Section 3.22. Opinion of Financial Adviser
Section 3.23. Brokers
Section 3.24. Disclosure
Section 3.25. No Existing Discussions
Section 3.26. Material Contracts
ARTICLE 4. Covenants
Section 4.1. Conduct of Business of HSNS
Section 4.2. Conduct of Business of JSJ
Section 4.3. Preparation of 8-K
Section 4.4. Other Potential Acquirers
Section 4.5. Meetings of Stockholders
Section 4.6. NASD OTC:BB Listing
Section 4.7. Access to Information
Section 4.8. Additional Agreements; Reasonable Efforts.
Section 4.9. Indemnification
Section 4.10. Notification of Certain Matters
ARTICLE 5. Conditions to Consummation of the Merger
Section 5.1. Conditions to each Party's Obligation to Effect the Merger
Section 5.2. Conditions to the Obligations of HSNS
Section 5.3. Conditions to the Obligations of JSJ
ARTICLE 6. Termination; Amendment; Waiver
Section 6.1. Termination
Section 6.2. Effect of Termination
Section 6.3. Fees and Expenses
Section 6.4. Amendment
Section 6.5. Extension; Waiver
ARTICLE 7. Miscellaneous
Section 7.1. Nonsurvival of Representations and Warranties
Section 7.2. Entire Agreement; Assignment
Section 7.3. Validity
Section 7.4. Notices
Section 7.5. Governing Law
Section 7.6. Descriptive Headings
Section 7.7. Parties in Interest
Section 7.8. Certain Definitions
Section 7.9. Personal Liability
Section 7.10. Specific Performance
Section 7.11. Counterparts
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger (this "Agreement"), dated as of April
19, 2000, is between HIGH SPEED NET SOLUTIONS, INC., a Florida corporation
("HSNS"), and J.S.J. CAPITAL CORP., a Nevada corporation ("JSJ").
Whereas, the Boards of Directors of HSNS and JSJ each have, in light of
and subject to the terms and conditions set forth herein, (i) determined that
the Merger (as defined below) is fair to their respective stockholders and in
the best interests of such stockholders and (ii) approved the Merger in
accordance with this Agreement;
Whereas, for Federal income tax purposes, it is intended that the Merger
qualify as a reorganization under the provisions of Section 368(a) of the
Internal Revenue Code of 1986, as amended (the "Code"); and
Whereas, HSNS and JSJ desire to make certain representations,
warranties, covenants and agreements in connection with the Merger and also
to prescribe various conditions to the Merger.
Now, therefore, in consideration of the promises and the
representations, warranties, covenants and agreements herein contained, and
intending to be legally bound hereby, HSNS and JSJ hereby agree as follows:
ARTICLE I
The Merger
Section 1.1. The Merger. At the Effective Time (as defined below) and
upon the terms and subject to the conditions of this Agreement and in
accordance with the General Corporation Law of the State of Nevada (the
"NGCL") and the General Corporation Law of the State of Florida (the "FGCL"),
JSJ shall be merged with and into HSNS (as defined below) (the ``Merger").
Following the Merger, HSNS shall continue as the surviving corporation (the
"Successor Corporation"), shall continue to be governed by the laws of the
jurisdiction of its incorporation or organization and the separate corporate
existence of JSJ shall cease to exist. Prior to the Effective Time, the
parties hereto shall mutually agree as to the name of the Successor
Corporation; however, initially the Successor Corporation shall be named HIGH
SPEED NET SOLUTIONS, INC., a Florida corporation. The Merger is intended to
qualify as a tax-free reorganization under Section 368 of the Code as relates
to the non-cash exchange of stock referenced herein.
Section 1.2. Effective Time. Subject to the terms and conditions set
forth in this Agreement, a Certificate of Merger (the "Merger Certificate")
shall be duly executed and acknowledged by each of JSJ and HSNS, and
thereafter the Merger Certificate reflecting the Merger shall be delivered to
the Secretary of State of the State of Nevada for filing pursuant to the NGCL
and to the Secretary of State of the State of Florida for filing pursuant to
the FGCL on the Closing Date (as defined in Section 1.3). The Merger shall
become effective at such time as a properly executed and certified copy of
the Merger Certificate is duly filed by the Secretary of State of the State
of Nevada in accordance with the NGCL and by the Secretary of State of the
State of Florida in accordance with the FGCL or such later time as the
parties may agree upon and set forth in the Merger Certificate (the time at
which the Merger becomes effective shall be referred to herein as the
"Effective Time").
Section 1.3. Closing of the Merger. The closing of the Merger (the
"Closing") will take place at a time and on a date to be specified by the
parties, which shall be no later than the second business day after
satisfaction of the latest to occur of the conditions set forth in Article 5
(the "Closing Date"), at the offices of Sperry Young & Xxxxxxxxxx, 0000 X.
Xxxxxxxx Xx., Xxxxx 000, Xxx Xxxxx, Xxxxxx, unless another time, date or
place is agreed to in writing by the parties hereto.
Section 1.4. Effects of the Merger. The Merger shall have the effects
set forth in the NGCL and FGCL. Without limiting the generality of the
foregoing, and subject thereto, at the Effective Time, all the properties,
rights, privileges, powers of JSJ shall vest in the Successor Corporation,
and all debts, liabilities and duties of JSJ shall become the debts,
liabilities and duties of the Successor Corporation.
Section 1.5. Board of Directors and Officers of HSNS. At or prior to the
Effective Time, each of JSJ and HSNS agrees to take such action as is
necessary (i) to cause the number of directors comprising the full Board of
Directors of HSNS to remain the same
Section 1.6. Conversion of Shares. At the Effective Time, each share of
common stock, par value $.0001 per share of JSJ (individually a "JSJ Share"
and collectively, the "JSJ Shares") issued and outstanding immediately prior
to the Effective Time shall, by virtue of the Merger and without any action
on the part of JSJ, HSNS, or the holder thereof, be converted into and shall
become fully paid and nonassessable HSNS common shares determined by issuing
one (1) share of HSNS common share for every 13.44 shares of JSJ.
Section 1.7. Exchange of Certificates.
(a) Prior to the Effective Time, HSNS shall enter into an agreement
with, and shall deposit with, Sperry Young & Xxxxxxxxxx, or such other agent
or agents as may be satisfactory to HSNS and JSJ (the "Exchange Agent'), for
the benefit of the holders of JSJ Shares, for exchange through the Exchange
Agent in accordance with this Article I: (i) certificates representing the
appropriate number of HSNS Shares to be issued to holders of JSJ Shares
issuable pursuant to Section 1.6 in exchange for outstanding JSJ Shares.
(b) As soon as reasonably practicable after the Effective Time, the
Exchange Agent shall mail to each holder of record of a certificate or
certificates which immediately prior to the Effective Time represented
outstanding JSJ Shares (the "Certificates") whose shares were converted into
the right to receive HSNS Shares pursuant to Section 1.6: (i) a letter of
transmittal (which shall specify that delivery shall be effected, and risk of
loss and title to the Certificates shall pass, only upon delivery of the
Certificates to the Exchange Agent and shall be in such form and have such
other provisions as JSJ and HSNS may reasonably specify) and (ii)
instructions for use in effecting the surrender of the Certificates in
exchange for certificates representing HSNS Shares. Upon surrender of a
Certificate to the Exchange Agent, together with such letter of transmittal,
duly executed, and any other required documents, the holder of such
Certificate shall be entitled to receive in exchange therefore a certificate
representing that number of whole HSNS Shares, which such holder has the
right to receive pursuant to the provisions of this Article I, and the
Certificate so surrendered shall forthwith be canceled. In the event of a
transfer of ownership of JSJ Shares which are not registered in the transfer
records of JSJ, a certificate representing the proper number of HSNS Shares
may be issued to a transferee if the Certificate representing such JSJ Shares
is presented to the Exchange Agent accompanied by all documents required by
the Exchange Agent or HSNS to evidence and effect such transfer and by
evidence that any applicable stock transfer or other taxes have been paid.
Until surrendered as contemplated by this Section 1.7, each Certificate shall
be deemed at any time after the Effective Time to represent only the right to
receive upon such surrender the certificate representing HSNS Shares as
contemplated by this Section 1.7.
(c) No dividends or other distributions declared or made after the
Effective Time with respect to HSNS Shares with a record date after the
Effective Time shall be paid to the holder of any unsurrendered Certificate
with respect to the HSNS Shares represented thereby until the holder of
record of such Certificate shall surrender such Certificate.
(d) In the event that any Certificate for JSJ Shares or HSNS Shares
shall have been lost, stolen or destroyed, the Exchange Agent shall issue in
exchange therefore, upon the making of an affidavit of that fact by the
holder thereof such HSNS Shares and cash in lieu of fractional HSNS Shares,
if any, as may be required pursuant to this Agreement; provided, however,
that HSNS or the Exchange Agent, may, in its respective discretion, require
the delivery of a suitable bond, opinion or indemnity.
(e) All HSNS Shares issued upon the surrender for exchange of JSJ Shares
in accordance with the terms hereof shall be deemed to have been issued in
full satisfaction of all rights pertaining to such JSJ Shares. There shall be
no further registration of transfers on the stock transfer books of JSJ of
the JSJ Shares which were outstanding immediately prior to the Effective
Time. If, after the Effective Time, Certificates of JSJ are presented to HSNS
for any reason, they shall be canceled and exchanged as provided in this
Article I.
(f) No fractional HSNS Shares shall be issued in the Merger, but in lieu
thereof each holder of JSJ Shares otherwise entitled to a fractional HSNS
Share shall, upon surrender of its, his or her Certificate or Certificates,
be entitled to receive an additional share to round up to the nearest round
number of shares.
Section 1.8. Taking of Necessary Action; Further Action. If, at any time
after the Effective Time, JSJ or HSNS reasonably determines that any deeds,
assignments, or instruments or confirmations of transfer are necessary or
desirable to carry out the purposes of this Agreement and to vest HSNS with
full right, title and possession to all assets, property, rights, privileges,
powers and franchises of JSJ, the officers and directors of HSNS and JSJ are
fully authorized in the name of their respective corporations or otherwise to
take, and will take, all such lawful and necessary or desirable action.
ARTICLE 2
Representations and Warranties of HSNS
Except as set forth on the Disclosure Schedule delivered by HSNS to JSJ
(the "HSNS Disclosure Schedule"), HSNS hereby represents and warrants to JSJ
as follows:
Section 2.1. Organization and Qualification.
(a) HSNS is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its incorporation or organization, has 300 or
more round lot (100 or more shares) stockholders and has all requisite power
and authority to own, lease and operate its properties and to carry on its
businesses as now being conducted, except where the failure to be so
organized, existing and in good standing or to have such power and authority
would not have a Material Adverse Effect (as defined below) on HSNS. When
used in connection with HSNS, the term "Material Adverse Effect" means any
change or effect (i) that is or is reasonably likely to be materially adverse
to the business, results of operations, condition (financial or otherwise) or
prospects of HSNS, other than any change or effect arising out of general
economic conditions unrelated to any business in which HSNS is engaged, or
(ii) that may impair the ability of HSNS to perform its obligations hereunder
or to consummate the transactions contemplated hereby.
(b) HSNS has heretofore delivered to JSJ accurate and complete copies of
the Articles of Incorporation and Bylaws (or similar governing documents), as
currently in effect, of HSNS. Except as set forth on Schedule 2.1 of the HSNS
Disclosure Schedule, HSNS is duly qualified or licensed and in good standing
to do business in each jurisdiction in which the property owned, leased or
operated by it or the nature of the business conducted by it makes such
qualification or licensing necessary, except in such jurisdictions where the
failure to be so duly qualified or licensed and in good standing would not
have a Material Adverse Effect on HSNS.
Section 2.2. Capitalization of HSNS.
(a) The authorized capital stock of HSNS consists of: (i) Fifty Million
(50,000,000) Authorized Shares of Common Stock, $0.001 par value, 21,062,149
Common shares are issued and outstanding as of February 10, 2000, and held by
300 or more round lot (100 or more shares) stockholders; (ii) Five Million
(5,000,000) Authorized Shares of Preferred Stock, $0.001 par value, no
Preferred Shares have been issued. Pursuant to the Merger Agreement HSNS will
issue 50,000 shares of 144 restricted common stock to the stockholder of JSJ.
All of the outstanding HSNS Shares have been duly authorized and validly
issued, and are fully paid, nonassessable and free of preemptive rights.
Except as set forth herein, as of the date hereof, there are no outstanding
(i) shares of capital stock or other voting securities of HSNS, (ii)
securities of HSNS convertible into or exchangeable for shares of capital
stock or voting securities of HSNS, (iii) options or other rights to acquire
from HSNS, except as set forth in 2.2(a) of the Disclosure Schedule, and, no
obligations of HSNS to issue, any capital stock, voting securities or
securities convertible into or exchangeable for capital stock or voting
securities of HSNS, and (iv) equity equivalents, interests in the ownership
or earnings of HSNS or other similar rights (collectively, "HSNS
Securities"). As of the date hereof, except as set forth on Schedule 2.2(a)
of the HSNS Disclosure Schedule there are no outstanding obligations of HSNS
or its subsidiaries to repurchase, redeem or otherwise acquire any HSNS
Securities or stockholder agreements, voting trusts or other agreements or
understandings to which HSNS is a party or by which it is bound relating to
the voting or registration of any shares of capital stock of HSNS. For
purposes of this Agreement, ``Lien" means, with respect to any asset
(including, without limitation, any security) any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such
asset.
(b) The HSNS Shares constitute the only class of equity securities of
HSNS registered or required to be registered under the Exchange Act.
(c) HSNS does not own directly or indirectly more than fifty percent
(50%) of the outstanding voting securities or interests (including membership
interests) of any entity, other than as specifically disclosed in the
disclosure documents.
Section 2.3. Authority Relative to this Agreement; Recommendation. HSNS
has all 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 have been duly and validly authorized by the
Board of Directors of HSNS (the "HSNS Board") and no other corporate
proceedings on the part of HSNS are necessary to authorize this Agreement or
to consummate the transactions contemplated hereby. This Agreement has been
duly and validly executed and delivered by HSNS and constitutes a valid,
legal and binding agreement of HSNS, enforceable against HSNS in accordance
with its terms.
Section 2.4. SEC Reports; Financial Statements. SEC Reports; Financial
Statements.
(a) HSNS filed a Form 10 with the Securities and Exchange Commission
(the "SEC") on February 22, 2000 and a Form 10/A on March 13, 2000, which
have complied in all material respects with all applicable requirements of
the Securities Act of 1933, as amended (the "Securities Act"), and the
Exchange Act (and the rules and regulations promulgated thereunder,
respectively), as in effect on the date such form was filed. HSNS has
heretofore delivered or promptly will deliver prior to the Effective Date to
JSJ, in the form filed with the SEC (including any amendments thereto but
excluding any exhibits), (i) its Form 10 filed February 22, 2000, (ii) its
Form 10/A filed Xxxxx 00, 0000, (xxx) all definitive proxy statements
relating to HSNS's meetings of stockholders (whether annual or special) held
since March 13, 2000, if any, and (iv) all other reports or registration
statements filed by HSNS with the SEC since March 13, 2000 (all of the
foregoing, collectively, the "HSNS SEC Reports"). None of such HSNS SEC
Reports, including, without limitation, any financial statements or schedules
included or incorporated by reference therein, contained, when filed, any
untrue statement of a material fact or omitted to state a material fact
required to be stated or incorporated by reference therein or necessary in
order to make the statements therein, in light of the circumstances under
which they were made, not misleading. The audited financial statements of
HSNS included in the HSNS SEC Reports fairly present, in conformity with
generally accepted accounting principles applied on a consistent basis
(except as may be indicated in the notes thereto), the financial position of
HSNS as of the dates thereof and its results of operations and changes in
financial position for the periods then ended. All material agreements,
contracts and other documents required to be filed as exhibits to any of the
HSNS SEC Reports have been so filed.
(b) HSNS has heretofore made available or promptly will make available
to JSJ a complete and correct copy of any amendments or modifications which
are required to be filed with the SEC but have not yet been filed with the
SEC, to agreements, documents or other instruments which previously had been
filed by HSNS with the SEC pursuant to the Exchange Act.
Section 2.5. Information Supplied. None of the information supplied or
to be supplied by HSNS for inclusion or incorporation by reference in
connection with the Merger will at the date presented to the stockholder of
JSJ and at the times of the meeting or meetings of stockholders of HSNS to be
held in connection with the Merger, contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of the
circumstances under which they are made, not misleading.
Section 2.6. Consents and Approvals; No Violations. Except for filings,
permits, authorizations, consents and approvals as may be required under, and
other applicable requirements of, the Securities Act, the Exchange Act, state
securities or blue sky laws, the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act
of 1916, as amended (the ``HSR Act''), the rules of the National Association
of Securities Dealers, Inc. ("NASD"), the filing and recordation of the
Merger Certificate as required by the NGCL, and as set forth on Schedule 2.6
of the HSNS Disclosure Schedule no filing with or notice to, and no permit,
authorization, consent or approval of, any court or tribunal or
administrative, governmental or regulatory body, agency or authority (a
"Governmental Entity") is necessary for the execution and delivery by HSNS of
this Agreement or the consummation by HSNS of the transactions contemplated
hereby, except where the failure to obtain such permits, authorizations,
consents or approvals or to make such filings or give such notice would not
have a Material Adverse Effect on HSNS.
Except as set forth in Section 2.6 of the HSNS Disclosure Schedule,
neither the execution, delivery and performance of this Agreement by HSNS nor
the consummation by HSNS of the transactions contemplated hereby will (i)
conflict with or result in any breach of any provision of the respective
Articles of Incorporation or Bylaws (or similar governing documents) of HSNS,
(ii) result in a violation or breach of, or constitute (with or without due
notice or lapse of time or both) a default (or give rise to any right of
termination, amendment, cancellation or acceleration or Lien) under, any of
the terms, conditions or provisions of any note, bond, mortgage, indenture,
lease, license, contract, agreement or other instrument or obligation to
which HSNS is a party or by which any of its properties or assets may be
bound, or (iii) violate any order, writ, injunction, decree, law, statute,
rule or regulation applicable to HSNS or any of its properties or assets,
except in the case of (ii) or (iii) for violations, breaches or defaults
which would not have a Material Adverse Effect on HSNS.
Section 2.7. No Default. Except as set forth in Section 2.7 of the HSNS
Disclosure Schedule, HSNS is not in breach, default or violation (and no
event has occurred which with notice or the lapse of time or both would
constitute a breach default or violation) of any term, condition or provision
of (i) its Articles of Incorporation or Bylaws (or similar governing
documents), (ii) any note, bond, mortgage, indenture, lease, license,
contract, agreement or other instrument or obligation to which HSNS is now a
party or by which any of its respective properties or assets may be bound or
(iii) any order, writ injunction, decree, law, statute, rule or regulation
applicable to HSNS or any of its respective properties or assets, except in
the case of (ii) or (iii) for violations, breaches or defaults that would not
have a Material Adverse Effect on HSNS. Except as set forth in Section 2.7 of
the HSNS Disclosure Schedule, each note, bond, mortgage, indenture, lease,
license, contract, agreement or other instrument or obligation to which HSNS
is now a party or by which its respective properties or assets may be bound
that is material to HSNS and that has not expired is in full force and effect
and is not subject to any material default thereunder of which HSNS is aware
by any party obligated to HSNS thereunder.
Section 2.8. No Undisclosed Liabilities; Absence of Changes. Except as
and to the extent disclosed in the December 31, 1999 audited financial
statements, none of HSNS or its subsidiaries had any liabilities or
obligations of any nature, whether or not accrued, contingent or otherwise,
that would be required by generally accepted accounting principles to be
reflected on a consolidated balance sheet of HSNS and its consolidated
subsidiaries (including the notes thereto) or which would have a Material
Adverse Effect on HSNS. Except as disclosed by HSNS, none of HSNS or its
subsidiaries has incurred any liabilities of any nature, whether or not
accrued, contingent or otherwise, which could reasonably be expected to have,
and there have been no events, changes or effects with respect to HSNS or its
subsidiaries having or which could reasonably be expected to have, a Material
Adverse Effect on HSNS. Except as and to the extent disclosed by HSNS there
has not been (i) any material change by HSNS in its accounting methods,
principles or practices (other than as required after the date hereof by
concurrent changes in generally accepted accounting principles), (ii) any
revaluation by HSNS of any of its assets having a Material Adverse Effect on
HSNS, including, without limitation, any write-down of the value of any
assets other than in the ordinary course of business or (iii) any other
action or event that would have required the consent of any other party
hereto pursuant to Section 4.2 of this Agreement had such action or event
occurred after the date of this Agreement.
Section 2.9. Litigation. Except as set forth in Schedule 2.9 of the HSNS
Disclosure Schedule there is no suit, claim, action, proceeding or
investigation pending or, to the knowledge of HSNS, threatened against HSNS
or any of its subsidiaries or any of their respective properties or assets
before any Governmental Entity which, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect on HSNS or could
reasonably be expected to prevent or delay the consummation of the
transactions contemplated by this Agreement. Except as disclosed by HSNS,
none of HSNS or its subsidiaries is subject to any outstanding order, writ,
injunction or decree which, insofar as can be reasonably foreseen in the
future, could reasonably be expected to have a Material Adverse Effect on
HSNS or could reasonably be expected to prevent or delay the consummation of
the transactions contemplated hereby.
Section 2.10. Compliance with Applicable Law. Except as disclosed by
HSNS, HSNS and its subsidiaries hold all permits, licenses, variances,
exemptions, orders and approvals of all Governmental Entities necessary for
the lawful conduct of their respective businesses (the "HSNS Permits"),
except for failures to hold such permits, licenses, variances, exemptions,
orders and approvals which would not have a Material Adverse Effect on HSNS.
Except as disclosed by HSNS, HSNS and its subsidiaries are in compliance with
the terms of the HSNS Permits, except where the failure so to comply would
not have a Material Adverse Effect on HSNS. Except as disclosed by HSNS, the
businesses of HSNS and its subsidiaries are not being conducted in violation
of any law, ordinance or regulation of any Governmental Entity except that no
representation or warranty is made in this Section 2.10 with respect to
Environmental Laws and except for violations or possible violations which do
not, and, insofar as reasonably can be foreseen, in the future will not, have
a Material Adverse Effect on HSNS. Except as disclosed by HSNS no
investigation or review by any Governmental Entity with respect to HSNS or
its subsidiaries is pending or, to the knowledge of HSNS, threatened, nor, to
the knowledge of HSNS, has any Governmental Entity indicated an intention to
conduct the same, other than, in each case, those which HSNS reasonably
believes will not have a Material Adverse Effect on HSNS.
Section 2.11. Employee Benefit Plans; Labor Matters.
(a) Except as set forth in Section 2.11(a) of the HSNS Disclosure
Schedule with respect to each employee benefit plan, program, policy,
arrangement and contract (including, without limitation, any "employee
benefit plan," as defined in Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA")), maintained or contributed to at
any time by HSNS or any entity required to be aggregated with HSNS pursuant
to Section 414 of the Code (each, a "HSNS Employee Plan"), no event has
occurred and to the knowledge of HSNS, no condition or set of circumstances
exists in connection with which HSNS could reasonably be expected to be
subject to any liability which would have a Material Adverse Effect on HSNS.
(b) (i) No HSNS Employee Plan is or has been subject to Title IV of
ERISA or Section 412 of the Code; and (ii) each HSNS Employee Plan intended
to qualify under Section 401(a) of the Code and each trust intended to
qualify under Section 501(a) of the Code is the subject of a favorable
Internal Revenue Service determination letter, and nothing has occurred which
could reasonably be expected to adversely affect such determination.
(c) Section 2.11(c) of the HSNS Disclosure Schedule sets forth a true
and complete list, as of the date of this Agreement, of each person who holds
any HSNS Stock Options, together with the number of HSNS Shares which are
subject to such option, the date of grant of such option, the extent to which
such option is vested (or will become vested as a result of the Merger), the
option price of such option (to the extent determined as of the date hereof),
whether such option is a nonqualified stock option or is intended to qualify
as an incentive stock option within the meaning of Section 422(b) of the
Code, and the expiration date of such option. Section 2.11(c) of the HSNS
Disclosure Schedule also sets forth the total number of such incentive stock
options and such nonqualified options. HSNS has furnished JSJ with complete
copies of the plans pursuant to which the HSNS Stock Options were issued.
Other than the automatic vesting of HSNS Stock Options that may occur without
any action on the part of HSNS or its officers or directors, HSNS has not
taken any action that would result in any HSNS Stock Options that are
unvested becoming vested in connection with or as a result of the execution
and delivery of this Agreement or the consummation of the transactions
contemplated hereby.
(d) HSNS has made available to JSJ (i) a description of the terms of
employment and compensation arrangements of all officers of HSNS and a copy
of each such agreement currently in effect; (ii) copies of all agreements
with consultants who are individuals obligating HSNS to make annual cash
payments in an amount exceeding $60,000; (iii) a schedule listing all
officers of HSNS who have executed a non-competition agreement with HSNS and
a copy of each such agreement currently in effect; (iv) copies (or
descriptions) of all severance agreements, programs and policies of HSNS with
or relating to its employees, except programs and policies required to be
maintained by law; and (v) copies of all plans, programs, agreements and
other arrangements of HSNS with or relating to its employees which contain
change in control provisions all of which are set forth in Section 2.11(d) of
the HSNS Disclosure Schedule.
(e) There shall be no payment, accrual of additional benefits,
acceleration of payments, or vesting in any benefit under any HSNS Employee
Plan or any agreement or arrangement disclosed under this Section 2.11 solely
by reason of entering into or in connection with the transactions
contemplated by this Agreement.
(f) There are no controversies pending or, to the knowledge of HSNS,
threatened, between HSNS and any of their employees, which controversies have
or could reasonably be expected to have a Material Adverse Effect on HSNS.
Neither HSNS nor any of its subsidiaries is a party to any collective
bargaining agreement or other labor union contract applicable to persons
employed by HSNS or any of its subsidiaries (and neither HSNS nor any of its
subsidiaries has any outstanding material liability with respect to any
terminated collective bargaining agreement or labor union contract), nor does
HSNS know of any activities or proceedings of any labor union to organize any
of its or employees. HSNS has no knowledge of any strike, slowdown, work
stoppage, lockout or threat thereof, by or with respect to any of its
employees.
Section 2.12. Environmental Laws and Regulations.
(a) Except as publicly disclosed by HSNS in the HSNS SEC Reports, (i)
HSNS is in material compliance with all applicable federal, state, local and
foreign laws and regulations relating to pollution or protection of human
health or the environment (including, without limitation, ambient air,
surface water, ground water, land surface or subsurface strata)
(collectively, "Environmental Laws"), except for non-compliance that would
not have a Material Adverse Effect on HSNS, which compliance includes, but is
not limited to, the possession by HSNS of all material permits and other
governmental authorizations required under applicable Environmental Laws, and
compliance with the terms and conditions thereof; (ii) HSNS has not received
written notice of, or, to the knowledge of HSNS, is the subject of, any
action, cause of action, claim, investigation, demand or notice by any person
or entity alleging liability under or non-compliance with any Environmental
Law (an ``Environmental Claim") that could reasonably be expected to have a
Material Adverse Effect on HSNS; and (iii) to the knowledge of HSNS, there
are no circumstances that are reasonably likely to prevent or interfere with
such material compliance in the future.
(b) Except as publicly disclosed by HSNS, there are no Environmental
Claims which could reasonably be expected to have a Material Adverse Effect
on HSNS that are pending or, to the knowledge of HSNS, threatened against
HSNS or, to the knowledge of HSNS, against any person or entity whose
liability for any Environmental Claim HSNS has or may have retained or
assumed either contractually or by operation of law.
Section 2.13. Tax Matters.
(a) Except as set forth in Section 2.13 of the HSNS Disclosure Schedule:
(i) HSNS has filed or has had filed on its behalf in a timely manner (within
any applicable extension periods) with the appropriate Governmental Entity
all income and other material Tax Returns (as defined herein) with respect to
Taxes (as defined herein) of HSNS and all Tax Returns were in all material
respects true, complete and correct; (ii) all material Taxes with respect to
HSNS have been paid in full or have been provided for in accordance with GAAP
on HSNS's most recent balance sheet which is part of the HSNS SEC Documents.
(iii) there are no outstanding agreements or waivers extending the statutory
period of limitations applicable to any federal, state, local or foreign
income or other material Tax Returns required to be filed by or with respect
to HSNS; (iv) to the knowledge of HSNS none of the Tax Returns of or with
respect to HSNS is currently being audited or examined by any Governmental
Entity; and (v) no deficiency for any income or other material Taxes has been
assessed with respect to HSNS which has not been abated or paid in full.
(b) For purposes of this Agreement, (i) "Taxes" shall mean all taxes,
charges, fees, levies or other assessments, including, without limitation,
income, gross receipts, sales, use, ad valorem, goods and services, capital,
transfer, franchise, profits, license, withholding, payroll, employment,
employer health, excise, estimated, severance, stamp, occupation, property or
other taxes, customs duties, fees, assessments or charges of any kind
whatsoever, together with any interest and any penalties, additions to tax or
additional amounts imposed by any taxing authority and (ii) "Tax Return"
shall mean any report, return, documents declaration or other information or
filing required to be supplied to any taxing authority or jurisdiction with
respect to Taxes.
Section 2.14. Title to Property. HSNS has good and defensible title to
all of its properties and assets, free and clear of all liens, charges and
encumbrances except liens for taxes not yet due and payable and such liens or
other imperfections of title, if any, as do not materially detract from the
value of or interfere with the present use of the property affected thereby
or which, individually or in the aggregate, would not have a Material Adverse
Effect on HSNS; and, to HSNS's knowledge, all leases pursuant to which HSNS
leases from others real or personal property are in good standing, valid and
effective in accordance with their respective terms, and there is not, to the
knowledge of HSNS, under any of such leases, any existing material default or
event of default (or event which with notice of lapse of time, or both, would
constitute a default and in respect of which HSNS has not taken adequate
steps to prevent such a default from occurring) except where the lack of such
good standing, validity and effectiveness, or the existence of such default
or event, would not have a Material Adverse Effect on HSNS.
Section 2.15. Intellectual Property.
(a) HSNS owns, or possesses adequate licenses or other valid rights to
use, all existing United States and foreign patents, trademarks, trade names,
service marks, copyrights, trade secrets and applications therefore that are
material to its business as currently conducted (the "HSNS Intellectual
Property Rights").
(b) The validity of the HSNS Intellectual Property Rights and the title
thereto of HSNS is not being questioned in any litigation to which HSNS is a
party.
(c) Except as set forth in Section 2.15(c) of the HSNS Disclosure
Schedule, the conduct of the business of HSNS as now conducted does not, to
HSNS's knowledge, infringe any valid patents, trademarks, trade names,
service marks or copyrights of others. The consummation of the transactions
completed hereby will not result in the loss or impairment of any HSNS
Intellectual Property Rights.
(d) HSNS has taken steps it believes appropriate to protect and maintain
its trade secrets as such, except in cases where HSNS has elected to rely on
patent or copyright protection in lieu of trade secret protection.
Section 2.16. Insurance. HSNS currently maintains general liability and
other business insurance.
Section 2.17. Vote Required. Approval of this Agreement and Plan of
Merger by the Stockholders of HSNS is not required pursuant to current Nevada
law.
Section 2.18. Tax Treatment. Neither HSNS nor, to the knowledge of HSNS,
any of its affiliates has taken or agreed to take action that would prevent
the Merger from constituting a reorganization qualifying under the provisions
of Section 368(a) of the Code.
Section 2.19. Affiliates. Except for the directors and executive
officers of HSNS, each of whom is listed in Section 2.19 of the HSNS
Disclosure Schedule, there are no persons who, to the knowledge of HSNS, may
be deemed to be affiliates of HSNS under Rule 1-02(b) of Regulation S-X of
the SEC (the "HSNS Affiliates").
Section 2.20. Certain Business Practices. None of HSNS or any directors,
officers, agents or employees of HSNS has (i) used any funds for unlawful
contributions, gifts, entertainment or other unlawful expenses relating to
political activity, (ii) made any unlawful payment to foreign or domestic
government officials or employees or to foreign or domestic political parties
or campaigns or violated any provision of the Foreign Corrupt Practices Act
of 1977, as amended (the "FCPA"), or (iii) made any other unlawful payment.
Section 2.21. Insider Interests. Except as set forth in Section 2.21 of
the HSNS Disclosure Schedule, neither any officer or director of HSNS has any
interest in any material property, real or personal, including without
limitation, any computer software or HSNS Intellectual Property Rights, used
in or pertaining to the business of HSNS, expect for the ordinary rights of a
stockholder or employee stock optionholder.
Section 2.22. Opinion of Financial Adviser. No advisers, as of the date
hereof, have delivered to the HSNS Board a written opinion to the effect
that, as of such date, the exchange ratio contemplated by the Merger is fair
to the holders of HSNS Shares.
Section 2.23. Brokers. No broker, finder or investment banker (other
than the HSNS Financial Adviser, a true and correct copy of whose engagement
agreement has been provided to JSJ) is entitled to any brokerage, finder's or
other fee or commission in connection with the transactions contemplated by
this Agreement based upon arrangements made by or on behalf of HSNS.
Section 2.24. Disclosure. No representation or warranty of HSNS in this
Agreement or any certificate, schedule, document or other instrument
furnished or to be furnished to JSJ pursuant hereto or in connection herewith
contains, as of the date of such representation, warranty or instrument, or
will contain any untrue statement of a material fact or, at the date thereof,
omits or will omit to state a material fact necessary to make any statement
herein or therein, in light of the circumstances under which such statement
is or will be made, not misleading.
Section 2.25. No Existing Discussions. As of the date hereof, HSNS is
not engaged, directly or indirectly, in any discussions or negotiations with
any other party with respect to any Third Party Acquisition (as defined in
Section 4.4).
Section 2.26. Material Contracts.
(a) HSNS has delivered or otherwise made available to JSJ true, correct
and complete copies of all contracts and agreements (and all amendments,
modifications and supplements thereto and all side letters to which HSNS is a
party affecting the obligations of any party thereunder) to which HSNS is a
party or by which any of its properties or assets are bound that are,
material to the business, properties or assets of HSNS taken as a whole,
including, without limitation, to the extent any of the following are,
individually or in the aggregate, material to the business, properties or
assets of HSNS taken as a whole, all: (i) employment, product design or
development, personal services, consulting, non-competition, severance,
golden parachute or indemnification contracts (including, without limitation,
any contract to which HSNS is a party involving employees of HSNS); (ii)
licensing, publishing, merchandising or distribution agreements; (iii)
contracts granting rights of first refusal or first negotiation; (iv)
partnership or joint venture agreements; (v) agreements for the acquisition,
sale or lease of material properties or assets or stock or otherwise entered
into since December 31, 1999; (vi) contracts or agreements with any
Governmental Entity. and (vii) all commitments and agreements to enter into
any of the foregoing (collectively, together with any such contracts entered
into in accordance with Section 4.1 hereof, the "HSNS Contracts"). HSNS is
not a party to or bound by any severance, golden parachute or other agreement
with any employee or consultant pursuant to which such person would be
entitled to receive any additional compensation or an accelerated payment of
compensation as a result of the consummation of the transactions contemplated
hereby.
(b) Each of the HSNS Contracts is valid and enforceable in accordance
with its terms, and there is no default under any HSNS Contract so listed
either by HSNS or, to the knowledge of HSNS, by any other party thereto, and
no event has occurred that with the lapse of time or the giving of notice or
both would constitute a default thereunder by HSNS or, to the knowledge of
HSNS, any other party, in any such case in which such default or event could
reasonably be expected to have a Material Adverse Effect on HSNS.
(c) No party to any such HSNS Contract has given notice to HSNS of or
made a claim against HSNS with respect to any breach or default thereunder,
in any such case in which such breach or default could reasonably be expected
to have a Material Adverse Effect on HSNS.
ARTICLE 3
Representations and Warranties of JSJ
Except as set forth on the Disclosure Schedule delivered by JSJ to HSNS
(the "JSJ Disclosure Schedule"), JSJ hereby represents and warrants to HSNS
as follows:
Section 3.1. Organization and Qualification.
(a) Each of JSJ and its subsidiaries is duly organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation
or organization and has all requisite power and authority to own, lease and
operate its properties and to carry on its businesses as now being conducted,
except where the failure to be so organized, existing and in good standing or
to have such power and authority would not have a Material Adverse Effect (as
defined below) on JSJ. When used in connection with JSJ, the term "Material
Adverse Effect'' means any change or effect (i) that is or is reasonably
likely to be materially adverse to the business, results of operations,
condition (financial or otherwise) or prospects of JSJ and its subsidiaries,
taken as a whole, other than any change or effect arising out of general
economic conditions unrelated to any businesses in which JSJ and its
subsidiaries are engaged, or (ii) that may impair the ability of JSJ to
consummate the transactions contemplated hereby.
(b) JSJ has heretofore delivered to HSNS accurate and complete copies of
the Articles of Incorporation and Bylaws (or similar governing documents), as
currently in effect, of JSJ. Each of JSJ and its subsidiaries is duly
qualified or licensed and in good standing to do business in each
jurisdiction in which the property owned, leased or operated by it or the
nature of the business conducted by it makes such qualification or licensing
necessary except in such jurisdictions where the failure to be so duly
qualified or licensed and in good standing would not have a Material Adverse
Effect on JSJ.
Section 3.2. Capitalization of JSJ.
(a) As of April 18, 2000, the authorized capital stock of JSJ consists
of Fifty Million (50,000,000) JSJ common Shares, $0.0001 par value, of which
672,000 common Shares are issued and outstanding. All of the outstanding JSJ
Shares have been duly authorized and validly issued, and are fully paid,
nonassessable and free of preemptive rights.
(b) Except as set forth in Section 3.2(b) of the JSJ Disclosure
Schedule, JSJ is the record and beneficial owner of all of the issued and
outstanding shares of capital stock of its subsidiaries.
(c) Except as set forth in Section 3.2(c) of the JSJ Disclosure
Schedule, between December 31, 1999 and the date hereof, no shares of JSJ's
capital stock have been issued and no JSJ Stock options have been granted.
Except as set forth in Section 3.2(a) above, as of the date hereof, there are
no outstanding (i) shares of capital stock or other voting securities of JSJ,
(ii) securities of JSJ or its subsidiaries convertible into or exchangeable
for shares of capital stock or voting securities of JSJ, (iii) options or
other rights to acquire from JSJ or its subsidiaries, or obligations of JSJ
or its subsidiaries to issue, any capital stock, voting securities or
securities convertible into or exchangeable for capital stock or voting
securities of JSJ, or (iv) equity equivalents, interests in the ownership or
earnings of JSJ or its subsidiaries or other similar rights (collectively,
"JSJ Securities"). As of the date hereof, there are no outstanding
obligations of JSJ or any of its subsidiaries to repurchase, redeem or
otherwise acquire any JSJ Securities. There are no stockholder agreements,
voting trusts or other agreements or understandings to which JSJ is a party
or by which it is bound relating to the voting or registration of any shares
of capital stock of JSJ.
(d) Except as set forth in Section 3.2(d) of the JSJ Disclosure
Schedule, there are no securities of JSJ convertible into or exchangeable
for, no options or other rights to acquire from JSJ, and no other contract,
understanding, arrangement or obligation (whether or not contingent)
providing for the issuance or sale, directly or indirectly, of any capital
stock or other ownership interests in, or any other securities of, any
subsidiary of JSJ.
(e) The JSJ Shares constitute the only class of equity securities of JSJ
or its subsidiaries.
(f) Except as set forth in Section 3.2(f) of the JSJ Disclosure
Schedule, JSJ does not own directly or indirectly more than fifty percent
(50%) of the outstanding voting securities or interests (including membership
interests) of any entity.
Section 3.3. Authority Relative to this Agreement; Recommendation.
(a) JSJ has all 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 have been duly and validly authorized by
the Board of Directors of JSJ (the "JSJ Board"), and no other corporate
proceedings on the part of JSJ are necessary to authorize this Agreement or
to consummate the transactions contemplated hereby, except, as referred to in
Section 3.17, the approval and adoption of this Agreement by the holders of
at least a majority of the then outstanding JSJ Shares. This Agreement has
been duly and validly executed and delivered by JSJ and constitutes a valid,
legal and binding agreement of JSJ, enforceable against JSJ in accordance
with its terms.
(b) The JSJ Board has resolved to recommend that the stockholders of JSJ
approve and adopt this Agreement.
Section 3.4. SEC Reports; Financial Statements.
(a) JSJ has filed all required forms, reports and documents with the
Securities and Exchange Commission (the "SEC") since January 26, 2000, each
of which has complied in all material respects with all applicable
requirements of the Securities Act of 1933, as amended (the "Securities
Act"), and the Exchange Act (and the rules and regulations promulgated
thereunder, respectively), each as in effect on the dates such forms, reports
and documents were filed. JSJ has heretofore delivered or promptly will
deliver prior to the Effective Date to JSJ, in the form filed with the SEC
(including any amendments thereto but excluding any exhibits), (i) its
initial Registration Statement on Form 10SB12G filed January 26, 2000, (ii)
all definitive proxy statements relating to JSJ's meetings of stockholders
(whether annual or special) held since January 26, 2000, if any, and (iii)
all other reports or registration statements filed by JSJ with the SEC since
January 26, 2000 (all of the foregoing, collectively, the "JSJ SEC Reports").
None of such JSJ SEC Reports, including, without limitation, any financial
statements or schedules included or incorporated by reference therein,
contained, when filed, any untrue statement of a material fact or omitted to
state a material fact required to be stated or incorporated by reference
therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The audited
financial statements of JSJ included in the JSJ SEC Reports fairly present,
in conformity with generally accepted accounting principles applied on a
consistent basis (except as may be indicated in the notes thereto), the
financial position of JSJ as of the dates thereof and its results of
operations and changes in financial position for the periods then ended. All
material agreements, contracts and other documents required to be filed as
exhibits to any of the JSJ SEC Reports have been so filed.
(b) JSJ has heretofore made available or promptly will make available to
HSNS a complete and correct copy of any amendments or modifications which are
required to be filed with the SEC but have not yet been filed with the SEC,
to agreements, documents or other instruments which previously had been filed
by JSJ with the SEC pursuant to the Exchange Act.
Section 3.5. Information Supplied. None of the information supplied or
to be supplied by JSJ for inclusion or incorporation by reference to the 8-K
will, at the time the 8-K is filed with the SEC and at the time it becomes
effective under the Securities Act, contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading.
Section 3.6. Consents and Approvals; No Violations. Except as set forth
in Section 3.6 of the JSJ Disclosure Schedule, and for filings, permits,
authorizations, consents and approvals as may be required under, and other
applicable requirements of, the Securities Act, the Exchange Act, state
securities or blue sky laws, the HSR Act, the rules of the NASD, and the
filing and recordation of the Merger Certificate as required by the NGCL, no
filing with or notice to, and no permit, authorization, consent or approval
of, any Governmental Entity is necessary for the execution and delivery by
JSJ of this Agreement or the consummation by JSJ of the transactions
contemplated hereby, except where the failure to obtain such permits,
authorizations consents or approvals or to make such filings or give such
notice would not have a Material Adverse Effect on JSJ.
Neither the execution, delivery and performance of this Agreement by JSJ
nor the consummation by JSJ of the transactions contemplated hereby will (i)
conflict with or result in any breach of any provision of the respective
Articles of Incorporation or Bylaws (or similar governing documents) of JSJ
or any of JSJ's subsidiaries, (ii) result in a violation or breach of, or
constitute (with or without due notice or lapse of time or both) a default
(or give rise to any right of termination, amendment, cancellation or
acceleration or Lien) under, any of the terms, conditions or provisions of
any note, bond, mortgage, indenture, lease, license, contract, agreement or
other instrument or obligation to which JSJ or any of JSJ's subsidiaries is a
party or by which any of them or any of their respective properties or assets
may be bound or (iii) violate any order, writ, injunction, decree, law,
statute, rule or regulation applicable to JSJ or any of JSJ's subsidiaries or
any of their respective properties or assets, except in the case of (ii) or
(iii) for violations, breaches or defaults which would not have a Material
Adverse Effect on JSJ.
Section 3.7. No Default. None of JSJ or any of its subsidiaries is in
breach, default or violation (and no event has occurred which with notice or
the lapse of time or both would constitute a breach, default or violation) of
any term, condition or provision of (i) its Articles of Incorporation or
Bylaws (or similar governing documents), (ii) any note, bond, mortgage,
indenture, lease, license, contract, agreement or other instrument or
obligation to which JSJ or any of its subsidiaries is now a party or by which
any of them or any of their respective properties or assets may be bound or
(iii) any order, writ, injunction, decree, law, statute, rule or regulation
applicable to JSJ, its subsidiaries or any of their respective properties or
assets, except in the case of (ii) or (iii) for violations, breaches or
defaults that would not have a Material Adverse Effect on JSJ. Each note,
bond, mortgage, indenture, lease, license, contract, agreement or other
instrument or obligation to which JSJ or any of its subsidiaries is now a
party or by which any of them or any of their respective properties or assets
may be bound that is material to JSJ and its subsidiaries taken as a whole
and that has not expired is in full force and effect and is not subject to
any material default thereunder of which JSJ is aware by any party obligated
to JSJ or any subsidiary thereunder.
Section 3.8. No Undisclosed Liabilities; Absence of Changes. Except as
set forth in Section 2.8 of the JSJ Disclosure Schedule and except as and to
the extent publicly disclosed by JSJ in the JSJ SEC Reports, as of December
31, 1999, JSJ does not have any liabilities or obligations of any nature,
whether or not accrued, contingent or otherwise, that would be required by
generally accepted accounting principles to be reflected on a balance sheet
of JSJ (including the notes thereto) or which would have a Material Adverse
Effect on JSJ. Except as publicly disclosed by JSJ, since December 31, 1999,
JSJ has not incurred any liabilities of any nature, whether or not accrued,
contingent or otherwise, which could reasonably be expected to have, and
there have been no events, changes or effects with respect to JSJ having or
which reasonably could be expected to have, a Material Adverse Effect on JSJ.
Except as and to the extent publicly disclosed by JSJ in the JSJ SEC Reports
and except as set forth in Section 2.8 of the JSJ Disclosure Schedule, since
December 31, 1999, there has not been (i) any material change by JSJ in its
accounting methods, principles or practices (other than as required after the
date hereof by concurrent changes in generally accepted accounting
principles), (ii) any revaluation by JSJ of any of its assets having a
Material Adverse Effect on JSJ, including, without limitation, any write-down
of the value of any assets other than in the ordinary course of business or
(iii) any other action or event that would have required the consent of any
other party hereto pursuant to Section 4.1 of this Agreement had such action
or event occurred after the date of this Agreement.
Section 3.9. Litigation. Except as publicly disclosed by JSJ in the JSJ
SEC Reports, there is no suit, claim, action, proceeding or investigation
pending or, to the knowledge of JSJ, threatened against JSJ or any of its
subsidiaries or any of their respective properties or assets before any
Governmental Entity which, individually or in the aggregate, could reasonably
be expected to have a Material Adverse Effect on JSJ or could reasonably be
expected to prevent or delay the consummation of the transactions
contemplated by this Agreement. Except as publicly disclosed by JSJ in the
JSJ SEC Reports, JSJ is not subject to any outstanding order, writ,
injunction or decree which, insofar as can be reasonably foreseen in the
future, could reasonably be expected to have a Material Adverse Effect on JSJ
or could reasonably be expected to prevent or delay the consummation of the
transactions contemplated hereby.
Section 3.10. Compliance with Applicable Law. Except as publicly
disclosed by JSJ in the JSJ SEC Reports, JSJ holds all permits, licenses,
variances, exemptions, orders and approvals of all Governmental Entities
necessary for the lawful conduct of their respective businesses (the `'JSJ
Permits"), except for failures to hold such permits, licenses, variances,
exemptions, orders and approvals which would not have a Material Adverse
Effect on JSJ. Except as publicly disclosed by JSJ in the JSJ SEC Reports,
JSJ is in compliance with the terms of the JSJ Permits, except where the
failure so to comply would not have a Material Adverse Effect on JSJ. Except
as publicly disclosed by JSJ in the JSJ SEC Reports, the business of JSJ is
not being conducted in violation of any law, ordinance or regulation of any
Governmental Entity except that no representation or warranty is made in this
Section 2.10 with respect to Environmental Laws (as defined in Section 2.12
below) and except for violations or possible violations which do not, and,
insofar as reasonably can be foreseen, in the future will not, have a
Material Adverse Effect on JSJ. Except as publicly disclosed by JSJ in the
JSJ SEC Reports, no investigation or review by any Governmental Entity with
respect to JSJ is pending or, to the knowledge of JSJ, threatened, nor, to
the knowledge of JSJ, has any Governmental Entity indicated an intention to
conduct the same, other than, in each case, those which JSJ reasonably
believes will not have a Material Adverse Effect on JSJ.
Section 3.11. Employee Benefit Plans; Labor Matters.
(a) With respect to each employee benefit plan, program, policy,
arrangement and contract (including, without limitation, any "employee
benefit plan," as defined in Section 3(3) of ERISA), maintained or
contributed to at any time by JSJ, any of its subsidiaries or any entity
required to be aggregated with JSJ or any of its subsidiaries pursuant to
Section 414 of the Code (each, a "JSJ Employee Plan"), no event has occurred
and, to the knowledge of JSJ, no condition or set of circumstances exists in
connection with which JSJ or any of its subsidiaries could reasonably be
expected to be subject to any liability which would have a Material Adverse
Effect on JSJ.
(b) (i) No JSJ Employee Plan is or has been subject to Title IV of ERISA
or Section 412 of the Code; and (ii) each JSJ Employee Plan intended to
qualify under Section 401(a) of the Code and each trust intended to qualify
under Section 501(a) of the Code is the subject of a favorable Internal
Revenue Service determination letter, and nothing has occurred which could
reasonably be expected to adversely affect such determination.
(c) Section 3.11(c) of the JSJ Disclosure Schedule sets forth a true and
complete list, as of the date of this Agreement, of each person who holds any
JSJ Stock Options, together with the number of JSJ Shares which are subject
to such option, the date of grant of such option, the extent to which such
option is vested (or will become vested as a result of the Merger), the
option price of such option (to the extent determined as of the date hereof),
whether such option is a nonqualified stock option or is intended to qualify
as an incentive stock option within the meaning of Section 422(b) of the
Code, and the expiration date of such option. Section 3.11(c) of the JSJ
Disclosure Schedule also sets forth the total number of such incentive stock
options and such nonqualified options. JSJ has furnished HSNS with complete
copies of the plans pursuant to which the JSJ Stock Options were issued.
Other than the automatic vesting of JSJ Stock Options that may occur without
any action on the part of JSJ or its officers or directors, JSJ has not taken
any action that would result in any JSJ Stock Options that are unvested
becoming vested in connection with or as a result of the execution and
delivery of this Agreement or the consummation of the transactions
contemplated hereby.
(d) JSJ has made available to HSNS (i) a description of the terms of
employment and compensation arrangements of all officers of JSJ and a copy of
each such agreement currently in effect; (ii) copies of all agreements with
consultants who are individuals obligating JSJ to make annual cash payments
in an amount exceeding $60,000; (iii) a schedule listing all officers of JSJ
who have executed a non-competition agreement with JSJ and a copy of each
such agreement currently in effect; (iv) copies (or descriptions) of all
severance agreements, programs and policies of JSJ with or relating to its
employees, except programs and policies required to be maintained by law; and
(v) copies of all plans, programs, agreements and other arrangements of the
JSJ with or relating to its employees which contain change in control
provisions.
(e) Except as disclosed in Section 3.11(e) of the JSJ Disclosure
Schedule there shall be no payment, accrual of additional benefits,
acceleration of payments, or vesting in any benefit under any JSJ Employee
Plan or any agreement or arrangement disclosed under this Section 3.11 solely
by reason of entering into or in connection with the transactions
contemplated by this Agreement.
(f) There are no controversies pending or, to the knowledge of JSJ
threatened, between JSJ or any of its subsidiaries and any of their
respective employees, which controversies have or could reasonably be
expected to have a Material Adverse Effect on JSJ. Neither JSJ nor any of its
subsidiaries is a party to any collective bargaining agreement or other labor
union contract applicable to persons employed by JSJ or any of its
subsidiaries (and neither JSJ nor any of its subsidiaries has any outstanding
material liability with respect to any terminated collective bargaining
agreement or labor union contract), nor does JSJ know of any activities or
proceedings of any labor union to organize any of its or any of its
subsidiaries' employees. JSJ has no knowledge of any strike, slowdown, work
stoppage, lockout or threat thereof by or with respect to any of its or any
of its subsidiaries' employees.
Section 3.12. Environmental Laws and Regulations.
(a) Except as disclosed by JSJ, (i) each of JSJ and its subsidiaries is
in material compliance with all Environmental Laws, except for non-compliance
that would not have a Material Adverse Effect on JSJ, which compliance
includes, but is not limited to, the possession by JSJ and its subsidiaries
of all material permits and other governmental authorizations required under
applicable Environmental Laws, and compliance with the terms and conditions
thereof; (ii) none of JSJ or its subsidiaries has received written notice of,
or, to the knowledge of JSJ, is the subject of, any Environmental Claim that
could reasonably be expected to have a Material Adverse Effect on JSJ; and
(iii) to the knowledge of JSJ, there are no circumstances that are reasonably
likely to prevent or interfere with such material compliance in the future.
(b) Except as disclosed by JSJ, there are no Environmental Claims which
could reasonably be expected to have a Material Adverse Effect on JSJ that
are pending or, to the knowledge of JSJ, threatened against JSJ or any of its
subsidiaries or, to the knowledge of JSJ, against any person or entity whose
liability for any Environmental Claim JSJ or its subsidiaries has or may have
retained or assumed either contractually or by operation of law.
Section 3.13. Tax Matters. Except as set forth in Section 3.13 of the
JSJ Disclosure Schedule: (i) JSJ and each of its subsidiaries has filed or
has had filed on its behalf in a timely manner (within any applicable
extension periods) with the appropriate Governmental Entity all income and
other material Tax Returns with respect to Taxes of JSJ and each of its
subsidiaries and all Tax Returns were in all material respects true, complete
and correct; (ii) all material Taxes with respect to JSJ and each of its
subsidiaries have been paid in full or have been provided for in accordance
with GAAP on JSJ's most recent balance sheet which is part of the JSJ SEC
Documents; (iii) there are no outstanding agreements or waivers extending the
statutory period of limitations applicable to any federal, state, local or
foreign income or other material Tax Returns required to be filed by or with
respect to JSJ or its subsidiaries; (iv) to the knowledge of JSJ none of the
Tax Returns of or with respect to JSJ or any of its subsidiaries is currently
being audited or examined by any Governmental Entity; and (v) no deficiency
for any income or other material Taxes has been assessed with respect to JSJ
or any of its subsidiaries which has not been abated or paid in full.
Section 3.14. Title to Property. JSJ and each of its subsidiaries have
good and defensible title to all of their properties and assets, free and
clear of all liens, charges and encumbrances except liens for taxes not yet
due and payable and such liens or other imperfections of title, if any, as do
not materially detract from the value of or interfere with the present use of
the property affected thereby or which, individually or in the aggregate,
would not have a Material Adverse Effect on JSJ; and, to JSJ's knowledge, all
leases pursuant to which JSJ or any of its subsidiaries lease from others
real or personal property are in good standing, valid and effective in
accordance with their respective terms, and there is not, to the knowledge of
JSJ, under any of such leases, any existing material default or event of
default (or event which with notice or lapse of time, or both, would
constitute a material default and in respect of which JSJ or such subsidiary
has not taken adequate steps to prevent such a default from occurring) except
where the lack of such good standing, validity and effectiveness, or the
existence of such default or event of default would not have a Material
Adverse Effect on JSJ.
Section 3.15. Intellectual Property.
(a) Each of JSJ and its subsidiaries owns, or possesses adequate
licenses or other valid rights to use, all existing United States and foreign
patents, trademarks, trade names, services marks, copyrights, trade secrets,
and applications therefore that are material to its business as currently
conducted (the "JSJ Intellectual Property Rights").
(b) Except as set forth in Section 3.15(b) of the JSJ Disclosure
Schedule the validity of the JSJ Intellectual Property Rights and the title
thereto of JSJ or any subsidiary, as the case may be, is not being questioned
in any litigation to which JSJ or any subsidiary is a party.
(c) The conduct of the business of JSJ and its subsidiaries as now
conducted does not, to JSJ's knowledge, infringe any valid patents,
trademarks, tradenames, service marks or copyrights of others. The
consummation of the transactions contemplated hereby will not result in the
loss or impairment of any JSJ Intellectual Property Rights.
(d) Each of JSJ and its subsidiaries has taken steps it believes
appropriate to protect and maintain its trade secrets as such, except in
cases where JSJ has elected to rely on patent or copyright protection in lieu
of trade secret protection.
Section 3.16. Insurance. JSJ currently does not maintain general
liability and other business insurance.
Section 3.17. Vote Required. The affirmative vote of the holders of at
least a majority of the outstanding JSJ Shares is the only vote of the
holders of any class or series of JSJ's capital stock necessary to approve
and adopt this Agreement and the Merger.
Section 3.18. Tax Treatment. Neither JSJ nor, to the knowledge of JSJ,
any of its affiliates has taken or agreed to take any action that would
prevent the Merger from constituting a reorganization qualifying under the
provisions of Section 368(a) of the Code.
Section 3.19. Affiliates. Except for the directors and executive
officers of JSJ, each of whom is listed in Section 3.19 of the JSJ Disclosure
Schedule, there are no persons who, to the knowledge of JSJ, may be deemed to
be affiliates of JSJ under Rule 1-02(b) of Regulation S-X of the SEC (the
"JSJ Affiliates").
Section 3.20. Certain Business Practices. None of JSJ, any of its
subsidiaries or any directors, officers, agents or employees of JSJ or any of
its subsidiaries has (i) used any funds for unlawful contributions, gifts,
entertainment or other unlawful expenses relating to political activity, (ii)
made any unlawful payment to foreign or domestic government officials or
employees or to foreign or domestic political parties or campaigns or
violated any provision of the FCPA, or (iii) made any other unlawful payment.
Section 3.21. Insider Interests. Except as set forth in Section 3.21 of
the JSJ Disclosure Schedule, no officer or director of JSJ has any interest
in any material property, real or personal, including without limitation, any
computer software or JSJ Intellectual Property Rights, used in or pertaining
to the business of JSJ or any subsidiary, except for the ordinary rights of a
stockholder or employee stock optionholder.
Section 3.22. Opinion of Financial Adviser. No advisers, as of the date
hereof, have delivered to the JSJ Board a written opinion to the effect that,
as of such date, the exchange ratio contemplated by the Merger is fair to the
holders of JSJ Shares.
Section 3.23. Brokers. No broker, finder or investment banker (other
than the JSJ Financial Adviser, a true and correct copy of whose engagement
agreement has been provided to HSNS) is entitled to any brokerage, finders or
other fee or commission in connection with the transactions contemplated by
this Agreement based upon arrangements made by or on behalf of JSJ.
Section 3.24. Disclosure. No representation or warranty of JSJ in this
Agreement or any certificate, schedule, document or other instrument
furnished or to be furnished to HSNS pursuant hereto or in connection
herewith contains, as of the date of such representation, warranty or
instrument, or will contain any untrue statement of a material fact or, at
the date thereof, omits or will omit to state a material fact necessary to
make any statement herein or therein, in light of the circumstances under
which such statement is or will be made, not misleading.
Section 3.25. No Existing Discussions. As of the date hereof, JSJ is not
engaged, directly or indirectly, in any discussions or negotiations with any
other party with respect to any Third Party Acquisition (as defined in
Section 5.4).
Section 3.26. Material Contracts.
(a) JSJ has delivered or otherwise made available to HSNS true, correct
and complete copies of all contracts and agreements (and all amendments,
modifications and supplements thereto and all side letters to which JSJ is a
party affecting the obligations of any party thereunder) to which JSJ or any
of its subsidiaries is a party or by which any of their properties or assets
are bound that are, material to the business, properties or assets of JSJ and
its subsidiaries taken as a whole, including, without limitation, to the
extent any of the following are, individually or in the aggregate, material
to the business, properties or assets of JSJ and its subsidiaries taken as a
whole, all: (i) employment, product design or development, personal services,
consulting, non-competition, severance, golden parachute or indemnification
contracts (including, without limitation, any contract to which JSJ is a
party involving employees of JSJ); (ii) licensing, publishing, merchandising
or distribution agreements; (iii) contracts granting rights of first refusal
or first negotiation; (iv) partnership or joint venture agreements; (v)
agreements for the acquisition, sale or lease of material properties or
assets or stock or otherwise. (vi) contracts or agreements with any
Governmental Entity; and (vii) all commitments and agreements to enter into
any of the foregoing (collectively, together with any such contracts entered
into in accordance with Section 5.2 hereof, the `JSJ Contracts"). Neither JSJ
nor any of its subsidiaries is a party to or bound by any severance, golden
parachute or other agreement with any employee or consultant pursuant to
which such person would be entitled to receive any additional compensation or
an accelerated payment of compensation as a result of the consummation of the
transactions contemplated hereby.
(b) Each of the JSJ Contracts is valid and enforceable in accordance
with its terms, and there is no default under any JSJ Contract so listed
either by JSJ or, to the knowledge of JSJ, by any other party thereto, and no
event has occurred that with the lapse of time or the giving of notice or
both would constitute a default thereunder by JSJ or, to the knowledge of
JSJ, any other party, in any such case in which such default or event could
reasonably be expected to have a Material Adverse Effect on JSJ.
(c) No party to any such JSJ Contract has given notice to JSJ of or made
a claim against JSJ with respect to any breach or default thereunder, in any
such case in which such breach or default could reasonably be expected to
have a Material Adverse Effect on JSJ.
ARTICLE 4
Covenants
Section 4.1. Conduct of Business of HSNS. Except as contemplated by this
Agreement or as described in Section 4.1 of the HSNS Disclosure Schedule,
during the period from the date hereof to the Effective Time, HSNS will
conduct its operations in the ordinary course of business consistent with
past practice and, to the extent consistent therewith, with no less diligence
and effort than would be applied in the absence of this Agreement, seek to
preserve intact its current business organization, keep available the service
of its current officers and employees and preserve its relationships with
customers, suppliers and others having business dealings with it to the end
that goodwill and ongoing businesses shall be unimpaired at the Effective
Time. Without limiting the generality of the foregoing, except as otherwise
expressly provided in this Agreement or as described in Section 4.1 of the
HSNS Disclosure Schedule, prior to the Effective Time, HSNS will not, without
the prior written consent of JSJ:
(a) amend its Articles of Incorporation or Bylaws (or other similar
governing instrument);
(b) amend the terms of any stock of any class or any other securities
(except bank loans) or equity equivalents.
(c) split, combine or reclassify any shares of its capital stock,
declare, set aside or pay any dividend or other distribution (whether in
cash, stock or property or any combination thereof) in respect of its capital
stock, make any other actual, constructive or deemed distribution in respect
of its capital stock or otherwise make any payments to stockholders in their
capacity as such, or redeem or otherwise acquire any of its securities;
(d) adopt a plan of complete or partial liquidation, dissolution,
merger, consolidation, restructuring, recapitalization or other
reorganization of HSNS (other than the Merger);
(e) (i) incur or assume any long-term or short-term debt or issue any
debt securities except for borrowings or issuances of letters of credit under
existing lines of credit in the ordinary course of business; (ii) assume,
guarantee, endorse or otherwise become liable or responsible (whether
directly, contingently or otherwise) for the obligations of any other person.
(iii) make any loans, advances or capital contributions to, or investments
in, any other person; (iv) pledge or otherwise encumber shares of capital
stock of HSNS; or (v) mortgage or pledge any of its material assets, or
create or suffer to exist any material Lien thereupon (other than tax Liens
for taxes not yet due);
(f) except as may be required by law, enter into, adopt or amend or
terminate any bonus, profit sharing, compensation, severance, termination,
stock option, stock appreciation right, restricted stock, performance unit,
stock equivalent, stock purchase agreement, pension, retirement, deferred
compensation, employment, severance or other employee benefit agreement,
trust, plan, fund or other arrangement for the benefit or welfare of any
director, officer or employee in any manner, or increase in any manner the
compensation or fringe benefits of any director, officer or employee or pay
any benefit not required by any plan and arrangement as in effect as of the
date hereof (including, without limitation, the granting of stock
appreciation rights or performance units); provided, however, that this
paragraph (f) shall not prevent HSNS from (i) entering into employment
agreements or severance agreements with employees in the ordinary course of
business and consistent with past practice or (ii) increasing annual
compensation and/or providing for or amending bonus arrangements for
employees for fiscal 2000 in the ordinary course of year-end compensation
reviews consistent with past practice and paying bonuses to employees for
fiscal 2000 in amounts previously disclosed to JSJ (to the extent that such
compensation increases and new or amended bonus arrangements do not result in
a material increase in benefits or compensation expense to HSNS);
(g) acquire, sell, lease or dispose of any assets in any single
transaction or series of related transactions (other than in the ordinary
course of business);
(h) except as may be required as a result of a change in law or in
generally accepted accounting principles, change any of the accounting
principles or practices used by it;
(i) revalue in any material respect any of its assets including, without
limitation, writing down the value of inventory or writing-off notes or
accounts receivable other than in the ordinary course of business;
(j) (i) acquire (by merger, consolidation, or acquisition of stock or
assets) any corporation, partnership or other business organization or
division thereof or any equity interest therein; (ii) enter into any contract
or agreement other than in the ordinary course of business consistent with
past practice which would be material to HSNS; (iii) authorize any new
capital expenditure or expenditures which, individually is in excess of
$1,000 or, in the aggregate, are in excess of $5,000; provided, however that
none of the foregoing shall limit any capital expenditure required pursuant
to existing contracts;
(k) make any tax election or settle or compromise any income tax
liability material to HSNS;
(l) settle or compromise any pending or threatened suit, action or claim
which (i) relates to the transactions contemplated hereby or (ii) the
settlement or compromise of which could have a Material Adverse Effect on
HSNS;
(m) commence any material research and development project or terminate
any material research and development project that is currently ongoing, in
either case, except pursuant to the terms of existing contracts or in the
ordinary course of business; or
(n) take, or agree in writing or otherwise to take, any of the actions
described in Sections 4.1(a) through 4.1(m) or any action which would make
any of the representations or warranties of contained in this Agreement
untrue or incorrect.
Section 4.2. Conduct of Business of JSJ. Except as contemplated by this
Agreement or as described in Section 4.2 of the JSJ Disclosure Schedule
during the period from the date hereof to the Effective Time, JSJ will
conduct its operations in the ordinary course of business consistent with
past practice and, to the extent consistent therewith, with no less diligence
and effort than would be applied in the absence of this Agreement, seek to
preserve intact its current business organization, keep available the service
of its current officers and employees and preserve its relationships with
customers, suppliers and others having business dealings with it to the end
that goodwill and ongoing businesses shall be unimpaired at the Effective
Time. Without limiting the generality of the foregoing, except as otherwise
expressly provided in this Agreement or as described in Section 4.2 of the
JSJ Disclosure Schedule, prior to the Effective Time, JSJ will not, without
the prior written consent of:
(a) amend its Articles of Incorporation or Bylaws (or other similar
governing instrument);
(b) authorize for issuance, issue, sell, deliver or agree or commit to
issue, sell or deliver (whether through the issuance or granting of options,
warrants, commitments, subscriptions, rights to purchase or otherwise) any
stock of any class or any other securities (except bank loans) or equity
equivalents (including, without limitation, any stock options or stock
appreciation rights;
(c) split, combine or reclassify any shares of its capital stock,
declare, set aside or pay any dividend or other distribution (whether in
cash, stock or property or any combination thereof) in respect of its capital
stock, make any other actual, constructive or deemed distribution in respect
of its capital stock or otherwise make any payments to stockholders in their
capacity as such, or redeem or otherwise acquire any of its securities;
(d) adopt a plan of complete or partial liquidation, dissolution, merger
consolidation, restructuring, recapitalization or other reorganization of JSJ
(other than the Merger);
(e) (i) incur or assume any long-term or short-term debt or issue any
debt securities except for borrowings or issuances of letters of credit under
existing lines of credit in the ordinary course of business. (ii) assume,
guarantee, endorse or otherwise become liable or responsible (whether
directly, contingently or otherwise) for the obligations of any other person;
(iii) make any loans, advances or capital contributions to or investments in,
any other person; (iv) pledge or otherwise encumber shares of capital stock
of JSJ or its subsidiaries; or (v) mortgage or pledge any of its material
assets, or create or suffer to exist any material Lien thereupon (other than
tax Liens for taxes not yet due);
(f) except as may be required by law, enter into, adopt or amend or
terminate any bonus, profit sharing, compensation, severance, termination,
stock option, stock appreciation right, restricted stock, performance unit
stock equivalent, stock purchase agreement, pension, retirement, deferred
compensation, employment, severance or other employee benefit agreement,
trust, plan, fund or other arrangement for the benefit or welfare of any
director, officer or employee in any manner, or increase in any manner the
compensation or fringe benefits of any director, officer or employee or pay
any benefit not required by any plan and arrangement as in effect as of the
date hereof (including, without limitation, the granting of stock
appreciation rights or performance units); provided, however, that this
paragraph (f) shall not prevent JSJ or its subsidiaries from (i) entering
into employment agreements or severance agreements with employees in the
ordinary course of business and consistent with past practice or (ii)
increasing annual compensation and/or providing for or amending bonus
arrangements for employees for fiscal 2000 in the ordinary course of yearend
compensation reviews consistent with past practice and paying bonuses to
employees for fiscal 2000 in amounts previously disclosed to (to the extent
that such compensation increases and new or amended bonus arrangements do not
result in a material increase in benefits or compensation expense to JSJ);
(g) acquire, sell, lease or dispose of any assets in any single
transaction or series of related transactions other than in the ordinary
course of business;
(h) except as may be required as a result of a change in law or in
generally accepted accounting principles, change any of the accounting
principles or practices used by it;
(i) revalue in any material respect any of its assets, including,
without limitation, writing down the value of inventory of writing-off notes
or accounts receivable other than in the ordinary course of business;
(j) (i) acquire (by merger, consolidation, or acquisition of stock or
assets) any corporation, partnership, or other business organization or
division thereof or any equity interest therein; (ii) enter into any contract
or agreement other than in the ordinary course of business consistent with
past practice which would be material to JSJ; (iii) authorize any new capital
expenditure or expenditures which, individually, is in excess of $1,000 or,
in the aggregate, are in excess of $5,000: provided, however that none of the
foregoing shall limit any capital expenditure required pursuant to existing
contracts;
(k) make any tax election or settle or compromise any income tax
liability material to JSJ and its subsidiaries taken as a whole;
(l) settle or compromise any pending or threatened suit, action or claim
which (i) relates to the transactions contemplated hereby or (ii) the
settlement or compromise of which could have a Material Adverse Effect on
JSJ;
(m) commence any material research and development project or terminate
any material research and development project that is currently ongoing, in
either case, except pursuant to the terms of existing contracts or except in
the ordinary course of business; or
(n) take, or agree in writing or otherwise to take, any of the actions
described in Sections 4.2(a) through 4.2(m) or any action which would make
any of the representations or warranties of the JSJ contained in this
Agreement untrue or incorrect.
Section 4.3. Preparation of 8-K. JSJ and HSNS shall promptly prepare
and file with the SEC an 8-K disclosing this merger with audited financials
of HSNS along with pro forma combined statements.
Section 4.4. Other Potential Acquirers.
(a) JSJ, its affiliates and their respective officers, directors,
employees, representatives and agents shall immediately cease any existing
discussions or negotiations, if any, with any parties conducted heretofore
with respect to any Third Party Acquisition.
Section 4.5. Meetings of Stockholders. JSJ shall take all action
necessary, in accordance with the respective General Corporation Law of its
respective state, and its respective Articles of Incorporation and bylaws, to
duly call, give notice of, convene and hold a meeting of its stockholders as
promptly as practicable, to consider and vote upon the adoption and approval
of this Agreement and the transactions contemplated hereby. The stockholder
votes required for the adoption and approval of the transactions contemplated
by this Agreement. JSJ will, through its Boards of Directors, recommend to
their respective stockholders approval of such matters
Section 4.6. NASD OTC:BB Listing. The parties shall use all reasonable
efforts to cause the HSNS Shares, subject to Rule 144, to be traded on the
Over-The-Counter Bulletin Board (OTC:BB).
Section 4.7. Access to Information.
(a) Between the date hereof and the Effective Time, HSNS will give JSJ
and its authorized representatives, and JSJ will give HSNS and its authorized
representatives, reasonable access to all employees, plants, offices,
warehouses and other facilities and to all books and records of itself and
its subsidiaries, will permit the other party to make such inspections as
such party may reasonably require and will cause its officers and those of
its subsidiaries to furnish the other party with such financial and operating
data and other information with respect to the business and properties of
itself and its subsidiaries as the other party may from time to time
reasonably request.
(b) Between the date hereof and the Effective Time, HSNS shall furnish
to JSJ, and JSJ will furnish to HSNS, within 25 business days after the end
of each quarter, quarterly statements prepared by such party in conformity
with its past practices) as of the last day of the period then ended.
(c) Each of the parties hereto will hold and will cause its consultants
and advisers to hold in confidence all documents and information furnished to
it in connection with the transactions contemplated by this Agreement.
Section 4.8. Additional Agreements, Reasonable Efforts. Subject to the
terms and conditions herein provided, each of the parties hereto agrees to
use all reasonable efforts to take, or cause to be taken, all action, and to
do, or cause to be done, all things reasonably necessary, proper or advisable
under applicable laws and regulations to consummate and make effective the
transactions contemplated by this Agreement, including, without limitation,
(i) cooperating in the preparation and filing of the 8-K, any filings that
may be required under the HSR Act, and any amendments to any thereof; (ii)
obtaining consents of all third parties and Governmental Entities necessary,
proper or advisable for the consummation of the transactions contemplated by
this Agreement; (iii) contesting any legal proceeding relating to the Merger
and (iv) the execution of any additional instruments necessary to consummate
the transactions contemplated hereby. Subject to the terms and conditions of
this Agreement, JSJ and HSNS agree to use all reasonable efforts to cause the
Effective Time to occur as soon as practicable after the stockholder votes
with respect to the Merger. In case at any time after the Effective Time any
further action is necessary to carry out the purposes of this Agreement, the
proper officers and directors of each party hereto shall take all such
necessary action.
Section 4.9. Indemnification.
(a) To the extent, if any, not provided by an existing right under one
of the parties' directors and officers liability insurance policies, from and
after the Effective Time, HSNS shall, to the fullest extent permitted by
applicable law, indemnify, defend and hold harmless each person who is now,
or has been at any time prior to the date hereof, or who becomes prior to the
Effective Time, a director, officer or employee of the parties hereto or any
subsidiary thereof (each an "Indemnified Party" and, collectively, the
``Indemnified Parties") against all losses, expenses (including reasonable
attorneys' fees and expenses), claims, damages or liabilities or, subject to
the proviso of the next succeeding sentence, amounts paid in settlement
arising out of actions or omissions occurring at or prior to the Effective
Time and whether asserted or claimed prior to, at or after the Effective
Time) that are in whole or in part (i) based on, or arising out of the fact
that such person is or was a director, officer or employee of such party or a
subsidiary of such party or (ii) based on, arising out of or pertaining to
the transactions contemplated by this Agreement. In the event of any such
loss expense, claim, damage or liability (whether or not arising before the
Effective Time), (i) HSNS shall pay the reasonable fees and expenses of
counsel selected by the Indemnified Parties, which counsel shall be
reasonably satisfactory to HSNS, promptly after statements therefore are
received and otherwise advance to such Indemnified Party upon request
reimbursement of documented expenses reasonably incurred, in either case to
the extent not prohibited by the NGCL or its Articles of Incorporation or
bylaws, (ii) HSNS will cooperate in the defense of any such matter and (iii)
any determination required to be made with respect to whether an Indemnified
Party's conduct complies with the standards set forth under the NGCL and
HSNS's Articles of Incorporation or bylaws shall be made by independent
counsel mutually acceptable to HSNS and the Indemnified Party; provided,
however, that HSNS shall not be liable for any settlement effected without
its written consent (which consent shall not be unreasonably withheld). The
Indemnified Parties as a group may retain only one law firm with respect to
each related matter except to the extent there is, in the opinion of counsel
to an Indemnified Party, under applicable standards of professional conduct,
c conflict on any significant issue between positions of any two or more
Indemnified Parties.
(b) In the event HSNS or any of its successors or assigns (i)
consolidates with or merges into any other person and shall not be the
continuing or surviving corporation or entity or such consolidation or merger
or (ii) transfers all or substantially all of its properties and assets to
any person, then and in either such case, proper provision shall be made so
that the successors and assigns of HSNS shall assume the obligations set
forth in this Section 4.9.
(c) To the fullest extent permitted by law, from and after the Effective
Time, all rights to indemnification now existing in favor of the employees,
agents, directors or officers of HSNS and JSJ and their subsidiaries with
respect to their activities as such prior to the Effective Time, as provided
in HSNS's and JSJ's Articles of Incorporation or bylaws, in effect on the
date thereof or otherwise in effect on the date hereof, shall survive the
Merger and shall continue in full force and effect for a period of not less
than six years from the Effective Time.
(d) The provisions of this Section 4.9 are intended to be for the
benefit of, and shall be enforceable by, each Indemnified Party, his or her
heirs and his or her representatives.
Section 4.10. Notification of Certain Matters. The parties hereto shall
give prompt notice to the other parties, of (i) the occurrence or
nonoccurrence of any event the occurrence or nonoccurrence of which would be
likely to cause any representation or warranty contained in this Agreement to
be untrue or inaccurate in any material respect at or prior to the Effective
Time, (ii) any material failure of such party to comply with or satisfy any
covenant, condition or agreement to be complied with or satisfied by it
hereunder, (iii) any notice of, or other communication relating to, a default
or event which, with notice or lapse of time or both, would become a default,
received by such party or any of its subsidiaries subsequent to the date of
this Agreement and prior to the Effective Time, under any contract or
agreement material to the financial condition, properties, businesses or
results of operations of such party and its subsidiaries taken as a whole to
which such party or any of its subsidiaries is a party or is subject, (iv)
any notice or other communication from any third party alleging that the
consent of such third party is or may be required in connection with the
transactions contemplated by this Agreement, or (v) any material adverse
change in their respective financial condition, properties, businesses,
results of operations or prospects taken as a whole, other than changes
resulting from general economic conditions; provided, however, that the
delivery of any notice pursuant to this Section 4.10 shall not cure such
breach or non-compliance or limit or otherwise affect the remedies available
hereunder to the party receiving such notice.
ARTICLE 5
Conditions to Consummation of the Merger
Section 5.1. Conditions to Each Party's Obligations to Effect the
Merger. The respective obligations of each party hereto to effect the Merger
are subject to the satisfaction at or prior to the Effective Time of the
following conditions:
(a) this Agreement shall have been approved and adopted by the requisite
vote of the stockholders of JSJ;
(b) this Agreement shall have been approved and adopted by the Board of
Directors of HSNS and JSJ;
(c) no statute, rule, regulation, executive order, decree, ruling or
injunction shall have been enacted, entered, promulgated or enforced by any
United States court or United States governmental authority which prohibits,
restrains, enjoins or restricts the consummation of the Merger;
(d) any waiting period applicable to the Merger under the HSR Act shall
have terminated or expired, and any other governmental or regulatory notices
or approvals required with respect to the transactions contemplated hereby
shall have been either filed or received; and
Section 5.2. Conditions to the Obligations of HSNS. The obligation of
HSNS to effect the Merger is subject to the satisfaction at or prior to the
Effective Time of the following conditions:
(a) the representations of JSJ contained in this Agreement or in any
other document delivered pursuant hereto shall be true and correct (except to
the extent that the breach thereof would not have a Material Adverse Effect
on JSJ) at and as of the Effective Time with the same effect as if made at
and as of the Effective Time (except to the extent such representations
specifically related to an earlier date, in which case such representations
shall be true and correct as of such earlier date), and at the Closing JSJ
shall have delivered to HSNS a certificate to that effect;
(b) each of the covenants and obligations of JSJ to be performed at or
before the Effective Time pursuant to the terms of this Agreement shall have
been duly performed in all material respects at or before the Effective Time
and at the Closing JSJ shall have delivered to HSNS a certificate to that
effect;
(d) JSJ shall have obtained the consent or approval of each person whose
consent or approval shall be required in order to permit the Merger as
relates to any obligation, right or interest of JSJ under any loan or credit
agreement, note, mortgage, indenture, lease or other agreement or instrument,
except those for which failure to obtain such consents and approvals would
not, in the reasonable opinion of HSNS, individually or in the aggregate,
have a Material Adverse Effect on JSJ;
(e) there shall have been no events, changes or effects with respect to
JSJ or its subsidiaries having or which could reasonably be expected to have
a Material Adverse Effect on JSJ; and
Section 5.3. Conditions to the Obligations of JSJ. The respective
obligations of JSJ to effect the Merger are subject to the satisfaction at or
prior to the Effective Time of the following conditions:
(a) the representations of HSNS contained in this Agreement or in any
other document delivered pursuant hereto shall be true and correct (except to
the extent that the breach thereof would not have a Material Adverse Effect
on HSNS) at and as of the Effective Time with the same effect as if made at
and as of the Effective Time (except to the extent such representations
specifically related to an earlier date, in which case such representations
shall be true and correct as of such earlier date), and at the Closing HSNS
shall have delivered to JSJ a certificate to that effect;
(b) each of the covenants and obligations of HSNS to be performed at or
before the Effective Time pursuant to the terms of this Agreement shall have
been duly performed in all material respects at or before the Effective Time
and at the Closing HSNS shall have delivered to JSJ a certificate to that
effect;
(c) there shall have been no events, changes or effects with respect to
HSNS having or which could reasonably be expected to have a Material Adverse
Effect on HSNS.
ARTICLE 6
Termination; Amendment; Waiver
Section 6.1. Termination. This Agreement may be terminated and the
Merger may be abandoned at any time prior to the Effective Time, whether
before or after approval and adoption of this Agreement by HSNS's or JSJ's
stockholders:
(a) by mutual written consent of HSNS and JSJ;
(b) by JSJ or HSNS if (i) any court of competent jurisdiction in the
United States or other United States Governmental Entity shall have issued a
final order, decree or ruling or taken any other final action restraining,
enjoining or otherwise prohibiting the Merger and such order, decree, ruling
or other action is or shall have become nonappealable or (ii) the Merger has
not been consummated by May 1, 2000; provided, however, that no party may
terminate this Agreement pursuant to this clause (ii) if such party's failure
to fulfill any of its obligations under this Agreement shall have been the
reason that the Effective Time shall not have occurred on or before said
date;
(c) by HSNS if (i) there shall have been a breach of any representation
or warranty on the part of JSJ set forth in this Agreement, or if any
representation or warranty of JSJ shall have become untrue, in either case
such that the conditions set forth in Section 5.2(a) would be incapable of
being satisfied by May 1, 2000 (or as otherwise extended), (ii) there shall
have been a breach by JSJ of any of their respective covenants or agreements
hereunder having a Material Adverse Effect on JSJ or materially adversely
affecting (or materially delaying) the consummation of the Merger, and JSJ,
as the case may be, has not cured such breach within 20 business days after
notice by HSNS thereof, provided that HSNS has not breached any of its
obligations hereunder, (iii) HSNS shall have convened a meeting of its
stockholders to vote upon the Merger and shall have failed to obtain the
requisite vote of its stockholders; or (iv) HSNS shall have convened a
meeting of its Board of Directors to vote upon the Merger and shall have
failed to obtain the requisite vote;
(d) by JSJ if (i) there shall have been a breach of any representation
or warranty on the part of HSNS set forth in this Agreement, or if any
representation or warranty of HSNS shall have become untrue, in either case
such that the conditions set forth in Section 5.3(a) would be incapable of
being satisfied by May 1, 2000 (or as otherwise extended), (ii) there shall
have been a breach by HSNS of its covenants or agreements hereunder having a
Material Adverse Effect on HSNS or materially adversely affecting (or
materially delaying) the consummation of the Merger, and HSNS, as the case
may be, has not cured such breach within twenty business days after notice by
JSJ thereof, provided that JSJ has not breached any of its obligations
hereunder, (iii) the HSNS Board shall have recommended to HSNS's stockholders
a Superior Proposal, (iv) the HSNS Board shall have withdrawn, modified or
changed its approval or recommendation of this Agreement or the Merger, or
hold a stockholders' meeting to vote upon the Merger, or shall have adopted
any resolution to effect any of the foregoing, (v) JSJ shall have convened a
meeting of its stockholders to vote upon the Merger and shall have failed to
obtain the requisite vote of its stockholders.
Section 6.2. Effect of Termination. In the event of the termination and
abandonment of this Agreement pursuant to Section 6.1, this Agreement shall
forthwith become void and have no effect, without any liability on the part
of any party hereto or its affiliates, directors, officers or stockholders,
other than the provisions of this Section 6.2 and Sections 4.7(c) and 6.3
hereof. Nothing contained in this Section 6.2 shall relieve any party from
liability for any breach of this Agreement.
Section 6.3. Fees and Expenses. Except as specifically provided in this
Section 6.3, each party shall bear its own expenses in connection with this
Agreement and the transactions contemplated hereby.
Section 6.4. Amendment. This Agreement may be amended by action taken by
HSNS and JSJ at any time before or after approval of the Merger by the
stockholders of HSNS and JSJ (if required by applicable law) but, after any
such approval, no amendment shall be made which requires the approval of such
stockholders under applicable law without such approval. This Agreement may
not be amended except by an instrument in writing signed on behalf of the
parties hereto.
Section 6.5. Extension; Waiver. At any time prior to the Effective Time,
each party hereto may (i) extend the time for the performance of any of the
obligations or other acts of any other party, (ii) waive any inaccuracies in
the representations and warranties of any other party contained herein or in
any document, certificate or writing delivered pursuant hereto or (iii) waive
compliance by any other party with any of the agreements or conditions
contained herein. Any agreement on the part of any party hereto to any such
extension or waiver shall be valid only if set forth in an instrument in
writing signed on behalf of such party. The failure of any party hereto to
assert any of its rights hereunder shall not constitute a waiver of such
rights.
ARTICLE 7
Miscellaneous
Section 7.1. Nonsurvival of Representations and Warranties. The
representations and warranties made herein shall not survive beyond the
Effective Time or a termination of this Agreement. This Section 7.1 shall not
limit any covenant or agreement of the parties hereto which by its terms
requires performance after the Effective Time.
Section 7.2. Entire Agreement; Assignment. This Agreement (a)
constitutes the entire agreement between the parties hereto with respect to
the subject matter hereof and supersedes all other prior agreements and
understandings both written and oral, between the parties with respect to the
subject matter hereof and (b) shall not be assigned by operation of law or
otherwise.
Section 7.3. Validity. If any provision of this Agreement, or the
application thereof to any person or circumstance, is held invalid or
unenforceable, the remainder of this Agreement, and the application of such
provision to other persons or circumstances, shall not be affected thereby,
and to such end, the provisions of this Agreement are agreed to be severable.
Section 7.4. Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt) by delivery in person, by
facsimile or by registered or certified mail (postage prepaid, return receipt
requested), to each other party as follows:
If to JSJ:
J S J CAPITAL CORP.
Attn: Xxxxxxx X. XxXxxx, President
0000 Xxxx Xxxxxxxx Xx. Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
with a copy to:
Xxxxxx X. Xxxxxxxxxx
Sperry Young & Xxxxxxxxxx
0000 Xxxx Xxxxxxxx Xx. Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
(000) 000-0000
if to HSNS:
Xxxxxx Xxx, President
HIGH SPEED NET SOLUTIONS, INC.
Two Hanover Square, Suite 2120
000 Xxxxxxxxxxxx Xxxxxx Xxxx
Xxxxxxx, XX 00000
(000) 000-0000
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
Section 7.5. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Nevada, without regard
to the principles of conflicts of law thereof.
Section 7.6. Descriptive 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.
Section 7.7. Parties in Interest. This Agreement shall be binding upon
and inure solely to the benefit of each party hereto and its successors and
permitted assigns, and except as provided in Sections 4.9 and 4.11, nothing
in this Agreement, express or implied, is intended to or shall confer upon
any other person any rights, benefits or remedies of any nature whatsoever
under or by reason of this Agreement.
Section 7.8. Certain Definitions. For the purposes of this Agreement,
the term:
(a) "affiliate" means (except as otherwise provided in Sections 2.19 and
3.19 a person that directly or indirectly, through one or more
intermediaries, controls, is controlled by, or is under common control with,
the first mentioned person;
(b) "business day" means any day other than a day on which Nasdaq is
closed;
(c) "capital stock" means common stock, preferred stock, partnership
interests, limited liability company interests or other ownership interests
entitling the holder thereof to vote with respect to matters involving the
issuer thereof;
(d) "knowledge'' or "known'' means, with respect to any matter in
question, if an executive officer of HSNS or JSJ or its subsidiaries, as the
case may be, has actual knowledge of such matter;
(e) "person" means an individual, corporation, partnership, limited
liability company, association, trust, unincorporated organization or other
legal entity; and
(f) "subsidiary" or "subsidiaries" of HSNS, JSJ or any other person,
means any corporation, partnership, limited liability company, association,
trust, unincorporated association or other legal entity of which HSNS, JSJ or
any such other person, as the case may be (either alone or through or
together with any other subsidiary), owns, directly or indirectly, 50% or
more of the capital stock, the holders of which are generally entitled to
vote for the election of the board of directors or other governing body of
such corporation or other legal entity.
Section 7.9. Personal Liability. This Agreement shall not create or be
deemed to create or permit any personal liability or obligation on the part
of any direct or indirect stockholder of HSNS, JSJ or any officer, director,
employee, agent, representative or investor of any party hereto.
Section 7.10. Specific Performance. The parties hereby acknowledge and
agree that the failure of any party to perform its agreements and covenants
hereunder, including its failure to take all actions as are necessary on its
part to the consummation of the Merger, will cause irreparable injury to the
other parties for which damages, even if available, will not be an adequate
remedy. Accordingly, each party hereby consents to the issuance of injunctive
relief by any court of competent jurisdiction to compel performance of such
party's obligations and to the granting by any court of the remedy of
specific performance of its obligations hereunder; provided, however, that,
if a party hereto is entitled to receive any payment or reimbursement of
expenses pursuant to Sections 6.3(a), (b) or (c), it shall not be entitled to
specific performance to compel the consummation of the Merger.
Section 7.11. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original, but all
of which shall constitute one and the same agreement.
In Witness Whereof, each of the parties has caused this Agreement to be
duly executed on its behalf as of the day and year first above written.
HIGH SPEED NET SOLUTIONS, INC.
By:/s/ Xxxxxx Xxx
Name: Xxxxxx Xxx
Title: President
J.S.J. CAPITAL CORP.
By:/s/ Xxxxxxx XxXxxx
Name: Xxxxxxx X. XxXxxx
Title: President
HSNS DISCLOSURE SCHEDULE
Schedule 2.1 Organization See Amended Articles/Bylaws
Schedule 2.2(a) Options, Stock Preference Rights See Form 10 and Form 10/A
Schedule 2.6 Consents & Approvals None Provided
Schedule 2.7 No Default Not Applicable
Schedule 2.8 No Undisclosed Liability None Exist
Schedule 2.9 Litigation See Form 10 and Form 10/A
Schedule 2.10 Compliance with Applicable Law None
Schedule 2.11 Employee Benefit Plans See Form 10 and Form 10/A
Schedule 2.12 Environmental Laws and Regs Not Applicable
Schedule 2.13 Tax Matters None Exist
Schedule 2.14 Title to Property None Exist
Schedule 2.15 Intellectual Property See Form 10 and Form 10/A
Schedule 2.16 Insurance None Exist
Schedule 2.17 Vote Required None Required
Schedule 2.18 Tax Treatment Not Applicable
Schedule 2.19 Affiliates Xxxxxx Xxx
Xx. Xxxxx Xxxxxxx
Xxxxxxx X Xxxxxxx
Xxxxxxx Xxxxxxxx Xxxxxxxxxx
Xxxx Xxxxxxxxxx
Xxxxxxx X. Xxxxxx
Xxxxxxx Xxx
Xxxxx Xxxxxx
Summus Ltd.
Schedule 2.20 Certain Business Practices None Exist
Schedule 2.21 Insider Interest See 2.19
Schedule 2.22 Opinion of Financial Adviser Waived - None Exist
Schedule 2.23 Broker None Exist
Schedule 4.1 Conduct of Business None Provided
JSJ DISCLOSURE SCHEDULE
Schedule 3.2(b) Subsidiary Stock None Exist
Schedule 3.2(c) Capital Stock Rights None Exist other than as in
Articles
Schedule 3.2(d) Securities conversions None Exist
Schedule 3.2 (f) Subsidiaries None Exist
Schedule 3.6 Consents & Approvals Provided
Schedule 3.7 No Default Not Applicable
Schedule 3.8 No Undisclosed Liability None Exist
Schedule 3.9 Litigation None Exist
Schedule 3.10 Compliance with Applicable Law Not Applicable - full
disclosed in 10SB
Schedule 3.11 Employee Benefit Plans Section 3.11( c)No Options
Exist
Section 3.11(e) No Agreements Exist
Schedule 3.12 Environmental Laws and Regs Not Applicable
Schedule 3.13 Tax Matters None Exist
Schedule 3.14 Title to Property None Exist
Schedule 3.15(b) Intellectual Property None Exist
Schedule 3.16 Insurance None Exist
Schedule 3.17 Vote Required See Shareholder Meeting
Certificate
Schedule 3.18 Tax Treatment Not Applicable
Schedule 3.19 Affiliates Xxxxxxx X. XxXxxx
Schedule 3.20 Certain Business Practices None Exist
Schedule 3.21 Insider Interest None Exist
Schedule 3.22 Opinion of Financial Adviser Waived - None Exist
Schedule 3.23 Broker None Exist
Schedule 4.2 Conduct of Business See Amended & Restated Articles
