AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "AGREEMENT"), is dated and made
effective as of February 10, 2006 (the "EFFECTIVE DATE"), by and between
Compliance Systems Corporation, a Delaware corporation ("CSC"), and GSA
Publications, Inc., a Nevada corporation and majority-owned subsidiary of CSC
("GSA"). CSC and GSA are sometimes hereinafter collectively referred to as the
"PARTIES" and each a "PARTY" to this Agreement.
RECITALS:
WHEREAS, on or about November 30, 2005, CSC purchased ninety percent (90%)
of the issued and outstanding shares of common stock of GSA, par value $0.001
per share (the "GSA COMMON STOCK") from the then-existing stockholders of GSA
pursuant to (i) that certain Stock Purchase Agreement of said date by and
between CSC and the Sellers under said Agreement (the "TANGERINE SPA"), and (ii)
that certain Stock Purchase Agreement of said date by and between CSC and Xxxx
Xxxx (the "XXXX SPA" and collectively with the Tangerine SPA, the "SPAS");
WHEREAS, pursuant to the terms of the SPAs, the total aggregate
consideration remitted by CSC thereunder, $100,000, was to be held in escrow
until such time that the Surviving Corporation (as defined in Section 1.1
hereof) files a Form 15c211 with the National Association of Securities Dealers
(the "NASD");
WHEREAS, CSC transferred five percent (5%) of the issued and outstanding
GSA Common Stock that it acquired pursuant to the SPAs to Knightsbridge Capital
("KNIGHTSBRIDGE") for its services rendered to CSC in connection with the SPAs,
and Knightsbridge is also entitled to receive $25,000 of the $100,000
consideration remitted by CSC under the SPAs in connection with rendering such
services;
WHEREAS, in light of the foregoing, CSC currently owns eighty-five percent
(85%) of the issued and outstanding GSA Common Stock and therefore GSA is a
majority-owned subsidiary of CSC;
WHEREAS, CSC desires to assume the reporting obligations of GSA, a public
shell whose stock is currently listed on the Pink Sheets, and to avail itself of
the benefits of GSA's public status pursuant to the filing of a Form 15C211 with
the NASD (collectively, the "TRANSFER OF GSA'S PUBLIC STATUS TO CSC");
WHEREAS, to facilitate the Transfer of GSA's Public Status to CSC, CSC
desires to merge with and into GSA, with GSA remaining the surviving
corporation, on the terms and subject to the conditions set forth in this
Agreement;
WHEREAS, the Board of Directors of CSC deems it advisable and in the best
interest of CSC and its stockholders that CSC merge with and into GSA as
provided herein and has approved and adopted the form, terms and provisions of
this Agreement and such merger, and the Board of Directors of CSC has directed
that this Agreement and such merger be submitted to holders of the Class A
Common Stock of CSC, par value $0.001 per share (the "CSC CLASS A COMMON STOCK")
for approval and adoption; and
WHEREAS, the Board of Directors of GSA deems it advisable and in the best
interest of GSA and its stockholders that CSC merge with and into GSA as
provided herein and has approved and adopted the form, terms and provisions of
this Agreement and such merger, and the Board of Directors of GSA has directed
that this Agreement and such merger be submitted to the holders of GSA Common
Stock for approval and adoption.
NOW, THEREFORE, for and in consideration of the foregoing premises, the
mutual promises, covenants and agreements contained herein, and for other good
and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the Parties, intending to be legally bound, hereby agree as set
forth below.
ARTICLE 1
THE MERGER
1.1 Merger of CSC with and into GSA. Upon the terms and subject to the
conditions set forth in this Agreement, and in accordance with the Delaware
General Corporation Law (the "DGCL") and the Nevada General Corporation Law (the
"NGCL"), at the Effective Time (as defined in Section 1.6 hereof): (a) CSC shall
merge with and into GSA, (b) the separate corporate existence of CSC shall cease
to exist and its Certificate of Incorporation and Bylaws shall be terminated,
and (c) GSA shall be the surviving corporation in the merger (the "SURVIVING
CORPORATION") and shall succeed to and assume all the rights and obligations of
CSC in accordance with the NGCL and the DGCL, and shall continue its existence
under the NGCL (the "MERGER").
1.2 Charter Documents of the Surviving Corporation. The Articles of
Incorporation and Bylaws of GSA at the Effective Time shall continue to be the
Articles of Incorporation and Bylaws of the Surviving Corporation subject to any
future amendments or deletions thereto in accordance with applicable law and as
set forth herein; provided that (i) Article FIRST of the Articles of
Incorporation shall be amended to provide as follows: "The name of the
corporation is Compliance Systems Corporation"; and (ii) Article FOURTH shall be
amended to provide as follows: The total number of shares of common stock
authorized that may be issued by the Corporation is FIVE HUNDRED MILLION
(500,000,000), par value $0.001 per share, and no other class of stock shall be
authorized. Said shares may be issued by the Corporation, from time to time, for
such consideration as may be fixed by the Board of Directors."
1.3 Directors and Officers of the Surviving Corporation. The directors
and officers of CSC immediately prior to the Effective Time shall become the
respective directors and officers of the Surviving Corporation, who shall serve
in accordance with applicable law and until their respective successors are duly
qualified and elected.
1.4 Cancellation, Conversion and Continuance of GSA Common Stock.
(a) GSA Common Stock Held by CSC Pre-Merger. At the Effective
Time, all shares of GSA Common Stock owned by CSC immediately prior to the
consummation of the Merger shall be cancelled.
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(b) Conversion of CSC Common Stock into New GSA Common Stock. Each
issued and outstanding share of the CSC Class A Common Stock and Class B common
stock of CSC, par value $0.001 per share (the "CSC CLASS B COMMON STOCK", and
collectively with CSC Class A Common Stock, the "CSC COMMON STOCK") shall, by
virtue of the Merger and without any action on the part of the holder thereof,
be automatically converted at the Effective Time into 3.278055546 shares of
common stock, par value $0.001 per share, rounded to the whole number (the "CSC
EXCHANGE RATIO") of common stock of the Surviving Corporation (the "NEW CSC
COMMON STOCK"). Each share of CSC Common Stock held in the treasury as of the
Effective Time shall be cancelled.
(c) Conversion of GSA Common Stock Not Held by CSC. Each issued
and outstanding share, and each share then held in the treasury, of GSA Common
Stock not held by CSC immediately prior to the consummation of the Merger shall,
by virtue of the Merger and without any action on the part of the holder
thereof, be automatically converted at the Effective Time into one (1) share of
New CSC Common Stock, rounded to the whole number (the "GSA EXCHANGE RATIO").
(d) Options and Warrants. The terms and conditions of each stock
option and warrant to purchase shares of CSC's Common Stock outstanding
immediately prior to the consummation of the Merger shall remain the same,
except that such option or warrant shall be an option or warrant, as the case
may be, to purchase shares of New GSA Common Stock at the CSC Exchange Ratio.
The terms and conditions of each stock option and warrant to purchase shares of
GSA's Common Stock outstanding immediately prior to the consummation of the
Merger shall remain the same, except that such option or warrant shall be an
option or warrant, as the case may be, to purchase shares of New GSA Common
Stock at the GSA Exchange Ratio.
1.5 Shareholder and Registration Rights Agreements. At the Effective
Time, any investor rights agreements or shareholder agreements by and between
CSC and the holders of any CSC Common Stock, stock options or warrants to
purchase CSC Common Stock shall terminate and cease to be of any further force
and effect, except the following agreements (which involve agreements among
shareholders of the Company and the Company's securities) shall not be
terminated by operation of this Section 1.5: (i) that certain Separation, Mutual
Release and Stock Purchase Agreement, dated September 20, 2005, by and between
Xxxxxx Xxxxxxxxx and Compliance Systems Corporation; and (ii) that certain
Consulting Agreement, dated June 1, 2005, by and between Call Compliance, Inc.
and Xxxxxx Xxxxxxxxx. At the Effective Time, any investor rights agreements or
shareholder agreements by and between GSA and the holders of any GSA Common
Stock, stock options or warrants to purchase GSA Common Stock shall terminate
and cease to be of any further force and effect.
1.6 Approval, Filing and Effective Time. This Agreement has been adopted
and approved by the Board of Directors (the "BOARD") of CSC and the Board of GSA
in the manner required under the DGCL and NGCL, respectively. If this Agreement
has not been terminated pursuant to Section 1.7 hereof, CSC and GSA, upon
obtaining the requisite approval of their respective stockholders under the DGCL
and the NGCL, respectively, shall, when the Surviving Corporation deems
appropriate, file a Certificate of Ownership and Merger with the Secretary of
State of Delaware and a Certificate of Merger with the Secretary of State of
Nevada (collectively, the "ARTICLES OF MERGER"). The Merger shall become
effective upon the filing of the Articles of Merger (the "EFFECTIVE TIME").
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1.7 Amendment; Termination. This Agreement may be amended or terminated
at any time prior to the Effective Time by action of the Board of both CSC and
GSA, except as otherwise prohibited by the DGCL or the NGCL, notwithstanding the
adoption or approval by CSC and GSA. Termination of this Agreement pursuant to
this Section 1.7 shall terminate all obligations of the parties hereunder
(except for the liability of any party then in breach).
1.8 Further Assurances. From time to time, as and when required by the
Surviving Corporation or its successors or assigns, there shall be executed and
delivered on behalf of CSC such documents and other instruments, and there shall
be taken or caused to be taken by it all such further and other action, as shall
be appropriate, advisable or necessary to: (i) vest, perfect or confirm, of
record or otherwise, in the Surviving Corporation, the title to and possession
of all property, interests, assets, rights, privileges, immunities, powers,
franchises and authority of CSC; and (ii) otherwise carry out the purposes of
this Agreement. The executive officers and directors of the Surviving
Corporation are fully authorized in the name and on behalf of CSC or otherwise,
to take any and all such action and to execute and deliver any and all such
deeds and other instruments.
1.9 Service of Process; Appointment of Agent. The Surviving Corporation
hereby agrees that it may be sued in the State of Delaware for any prior
obligation of CSC, any prior obligation of any constituent foreign corporation,
and any obligations hereafter incurred by the Surviving Corporation, so long as
any liability remains outstanding against CSC in the State of Delaware, and it
hereby irrevocably appoints the Secretary of State of Delaware as its agent to
accept service of process in any action for the enforcement of any such
obligation, including taxes.
1.10 Closing. Subject to the fulfillment or waiver of the conditions
precedent set forth in Article 5 hereof, the closing of the transactions
contemplated by this Agreement (the "CLOSING") shall take place at the offices
of CSC at 10:00 am (local time) on the Closing Date. Except as otherwise
provided herein, all proceedings to be taken and all documents to be executed at
the Closing shall be deemed to have been taken, delivered and executed
simultaneously, and no proceeding shall be deemed taken nor documents deemed
executed or delivered until all have been taken, delivered and executed. At the
Closing, CSC and GSA shall execute and deliver for filing the Articles of
Merger.
1.11 Miscellaneous.
(a) The consummation of the Merger shall not be deemed a
transaction that constitutes a "change of control," as such term is defined in
the respective stock option plans or agreements of CSC or GSA under which
options to purchase shares of their common stock have been granted. Accordingly,
the terms of outstanding stock options of CSC and GSA, if any, shall not be
affected as a result of the Merger.
(b) It will be necessary for all holders of CSC Common Stock to
exchange their existing stock certificates representing shares of CSC Common
Stock for stock certificates representing shares of New GSA Common Stock, and
upon such exchange, they shall receive shares of New GSA Common Stock based on
the CSC Exchange Ratio, possessing, subject to differences in applicable law,
the rights as set forth in the Certificate of Incorporation of the Surviving
Corporation, as amended pursuant to Section 1.2 hereof and as may be further
amended from time to time.
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(c) It will be necessary for all holders of GSA Common Stock other
than CSC, to exchange their existing stock certificates representing shares of
GSA Common Stock for stock certificates representing shares of New GSA Common
Stock, and upon such exchange, they shall receive shares of New GSA Common
Stock, based on the GSA Exchange Ratio, possessing, subject to differences in
applicable law, the rights as set forth in the Certificate of Incorporation of
the Surviving Corporation, as amended pursuant to Section 1.2 hereof and as may
be further amended from time to time. Notwithstanding the foregoing, the
exchange procedure for holders of GSA Common Stock may be altered by the Board
of Directors of the Surviving Corporation in its sole and absolute discretion,
and/or as a result of such holders exercising their dissenters' rights under
NGCL as described in Article 7 hereof.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF CSC
In order to induce GSA to enter into this Agreement and to consummate the
transactions contemplated hereby, CSC hereby represents and warrants to GSA as
follows:
2.1 Organization and Standing. CSC is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware.
2.2 Authority, Enforceability. CSC has all requisite corporate power and
authority to execute and deliver this Agreement, and the other agreements,
instruments, certificates and documents contemplated hereby (each a "DOCUMENT"
and collectively, the "DOCUMENTS") to which it is a party, to perform its
obligations under each such Document, and to consummate the transactions
contemplated by this Agreement and each such Document. The execution, delivery
and performance by CSC of this Agreement and each Document to which it is a
party and the consummation of the transactions contemplated hereby and thereby
have been duly and validly authorized by all necessary corporate action on the
part of the CSC. This Agreement and each Document to which CSC is a party is, or
upon its execution and delivery will be, a valid and binding obligation of CSC
enforceable against it in accordance with the terms thereof.
2.3 Noncontravention. Neither the execution, delivery or performance by
CSC of this Agreement or any Document to which it is a party, nor the
consummation by CSC of the transactions contemplated hereby or thereby, nor
compliance by CSC with any of the provisions hereof or thereof will (i) violate
any law, statute, rule or regulation or judgment, order, writ, injunction or
decree of any governmental authority, in each case applicable to CSC or its
assets or properties, or (ii) with or without the passage of time or the giving
of notice or both, result in the breach of, or constitute a default or require
any consent under, or result in the creation of any lien, claim or encumbrance
(collectively, "LIEN") upon any property or assets of CSC pursuant to, any
material instrument or agreement to which CSC is a party or by which CSC or its
properties may be bound or affected, except where the violation, conflict,
breach or default would not have a material adverse effect on the ability of CSC
to consummate the transactions contemplated by this Agreement.
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2.4 Consents and Approvals. No filing with, and no permit,
authorization, consent or approval of any governmental authority or any other
person or entity is necessary for the consummation by CSC of the transactions
contemplated hereby.
2.5 Brokers. CSC has not employed any broker or finder nor has incurred
or will incur any broker's, finder's or similar fees, commissions or expenses
payable in connection with the transactions contemplated by this Agreement.
2.6 Capitalization of Company and Subsidiary. CSC's authorized capital
stock consists of (i) fifteen million (15,000,000) shares of CSC Class A Common
Stock, of which eight million one hundred twenty-five thousand three (8,125,003)
shares are outstanding, and (ii) twenty-five million (25,000,000) shares of CSC
Class B Common Stock, of which four million eight hundred forty thousand
(4,840,000) shares are outstanding. All of the issued and outstanding shares of
CSC Common Stock (i) are duly authorized, validly issued, fully paid and
nonassessable, and (ii) were not issued in violation of the preemptive rights,
purchase options, call options, rights of first refusal, subscription rights or
any similar right of any person or entity or any agreement or law by which CSC
at the time of issuance was bound. All of the issued and outstanding shares of
each subsidiary of CSC: (x) are duly authorized, validly issued, fully paid and
nonassessable, (y) are held of record by CSC or another subsidiary of CSC, and
(z) were not issued in violation of the preemptive rights, purchase options,
call options, rights of first refusal, subscription rights or any similar right
of any person or entity or any agreement or law by which such subsidiary at the
time of issuance was bound. ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF GSA
In order to induce CSC to enter into this Agreement, and to consummate the
transactions contemplated hereby, GSA represents and warrants to CSC as follows.
3.1 Organization and Standing. GSA is a corporation duly organized,
validly existing and in good standing under the laws of the State of Nevada.
3.2 Authority, Enforceability. GSA has all requisite corporate power and
authority to execute and deliver this Agreement and the Documents to which it is
a party, to perform its obligations under each such Document, and to consummate
the transactions contemplated by this Agreement and each such Document. The
execution, delivery and performance by GSA of this Agreement and each Document
to which it is a party and the consummation of the transactions contemplated
hereby and thereby have been duly and validly authorized by all necessary
corporate action on the part of the GSA. This Agreement and each Document to
which GSA is a party is, or upon its execution and delivery will be, a valid and
binding obligation of GSA enforceable against it in accordance with the terms
thereof.
3.3 Noncontravention. Neither the execution, delivery or performance by
GSA of this Agreement or any Document to which it is a party, nor the
consummation by GSA of the transactions contemplated hereby or thereby, nor
compliance by GSA with any of the provisions hereof or thereof will (i) violate
any law, statute, rule or regulation or judgment, order, writ, injunction or
decree of any governmental authority, in each case applicable to GSA or its
assets or properties, or (ii) with or without the passage of time or the giving
of notice or both, result in the breach of, or constitute a default or require
any consent under, or result in the creation of any Lien upon any property or
assets of GSA pursuant to, any material instrument or agreement to which GSA is
a party or by which GSA or its properties may be bound or affected, except where
the violation, conflict, breach or default would not have a material adverse
effect on the ability of GSA to consummate the transactions contemplated by this
Agreement.
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3.4 Consents and Approvals. No filing with, and no permit,
authorization, consent or approval of any governmental authority or any other
person or entity is necessary for the consummation by GSA of the transactions
contemplated hereby.
3.5 Brokers. GSA has not employed any broker or finder nor has incurred
or will incur any broker's, finder's or similar fees, commissions or expenses
payable in connection with the transactions contemplated by this Agreement.
3.6 Capitalization of Company. GSA's authorized capital stock consists
of seventy-five million (75,000,000) shares of GSA Common Stock, of which fifty
million (50,000,000) shares are outstanding. All of the issued and outstanding
shares of GSA Common Stock (i) are duly authorized, validly issued, fully paid
and nonassessable, and (ii) were not issued in violation of the preemptive
rights, purchase options, call options, rights of first refusal, subscription
rights or any similar right of any person or entity or any agreement or law by
which GSA at the time of issuance was bound.
ARTICLE 4
PRE-CLOSING COVENANTS
4.1 Conduct of Business. During the period from the Effective Date to
the Closing Date: (i) CSC will, and will cause its subsidiaries to, continue to
conduct the business affairs of CSC and its subsidiaries in the ordinary course
of their respective businesses; and (ii) GSA will continue to conduct the
business affairs of GSA in the ordinary course of its business.
4.2 Efforts to Consummate. Subject to the terms and conditions of this
Agreement, each party hereto shall use reasonable efforts to take or cause to be
taken all actions, and do or cause to be done all things required under
applicable law, in order to consummate the Merger and the other transactions
contemplated hereby, including, without limitation, (i) obtaining all permits,
authorizations, consents and approvals of any governmental authority, entity or
person which are required for or in connection with the consummation of the
transactions contemplated hereby and by the other Documents, (ii) taking any and
all reasonable actions necessary to satisfy all of the conditions to such
party's obligations hereunder, and (iii) executing and delivering all agreements
and documents required by the terms hereof to be executed and delivered by such
party on or prior to the Closing.
ARTICLE 5
CONDITIONS TO CLOSING
5.1 Conditions to CSC's Obligations. The obligations of CSC to
consummate the transactions contemplated by this Agreement are subject to the
satisfaction at or prior to the Closing of each and every one of the following
conditions precedent, any one or more of which may be waived by CSC:
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(a) The representations and warranties of GSA contained in Article
III hereof shall be true and correct in all material respects on the Closing
Date with the same force and effect as though made on and as of the Closing Date
(except to the extent that any such representations or warranties by their terms
speak to a specific date prior to the Closing Date, which only need to speak of
such date).
(b) GSA shall have performed and complied in all material respects
with all of the agreements, covenants and obligations required under this
Agreement to be performed or complied with by GSA prior to or at the Closing.
(c) There shall be in force no injunction, judgment, order, decree
or ruling by or before any governmental authority of competent jurisdiction
restraining, enjoining, prohibiting, invalidating or otherwise preventing the
consummation of the transactions contemplated hereby by GSA and no action, suit,
claim or proceeding shall be pending before any such authority which seeks to
prohibit or enjoin the consummation of the transactions contemplated hereby by
GSA.
5.2 Conditions to GSA's Obligations. The obligations of GSA to
consummate the transactions contemplated by this Agreement are subject to the
satisfaction at or prior to the Closing of each and every one of the following
conditions precedent, any one or more of which may be waived by GSA:
(a) The representations and warranties of CSC contained in Article
II hereof shall be true and correct in all material respects on the Closing Date
with the same force and effect as though made on and as of the Closing Date
(except to the extent that any such representations or warranties by their terms
speak to a specific date prior to the Closing Date, which only need to speak of
such date).
(b) CSC shall have performed and complied in all material respects
with all of the agreements, covenants and obligations required under this
Agreement to be performed or complied with by CSC prior to or at the Closing.
(c) There shall be in force no injunction, judgment, order, decree
or ruling by or before any governmental authority of competent jurisdiction
restraining, enjoining, prohibiting, invalidating or otherwise preventing the
consummation of the transactions contemplated hereby by CSC and no action, suit,
claim or proceeding shall be pending before any such authority which seeks to
prohibit or enjoin the consummation of the transactions contemplated hereby by
CSC.
ARTICLE 6
ADDITIONAL AGREEMENTS
6.1 Further Assurances. The parties hereto shall deliver any and all
other instruments or documents required or reasonably requested by any other
party to be delivered pursuant to, or necessary or proper in order to give
effect to all of the terms and provisions of this Agreement.
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6.2 No Additional Representations. The parties hereto acknowledge that
neither CSC nor GSA has made any representation or warranty, express or implied,
as to the accuracy or completeness of any information regarding the parties
hereto or their subsidiaries or affiliates, if any, except as expressly set
forth in this Agreement, and the parties hereto further agree that neither CSC
nor GSA will have or be subject to any liability to the other party hereto
resulting from the distribution to the parties hereto, or the use by the parties
hereto of, any such information. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES
EXPRESSLY SET FORTH IN ARTICLE 2 HEREOF, CSC MAKES NO REPRESENTATION OR
WARRANTY, EXPRESS OR IMPLIED, AT LAW OR IN EQUITY, IN RESPECT OF CSC OR ITS
SUBSIDIARIES OR ANY OF THE ASSETS, LIABILITIES OR OPERATIONS OF CSC OR ITS
SUBSIDIARIES, AND GSA EXPRESSLY DISCLAIMS ANY SUCH REPRESENTATION OR WARRANTY.
EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN ARTICLE 3
HEREOF, GSA MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AT LAW OR
IN EQUITY, IN RESPECT OF GSA OR ANY OF THE ASSETS, LIABILITIES OR OPERATIONS OF
GSA, AND CSC EXPRESSLY DISCLAIMS ANY SUCH REPRESENTATION OR WARRANTY.
ARTICLE 7
DISSENTERS RIGHTS
7.1 GSA Shareholders. Notwithstanding anything in this Agreement to the
contrary, any issued and outstanding shares of GSA Common Stock held by any
person or entity other than CSC immediately prior to the consummation of the
Merger (a "DISSENTING GSA STOCKHOLDER") who objects to the Merger and complies
with all the provisions of Section 92A.380 of the NGCL concerning the right of
holders of GSA Common Stock to dissent from the Merger and require appraisal of
their shares of GSA Common Stock ("DISSENTING SHARES") shall not be converted as
described in Section 1.4(c) hereof but shall become the right to receive such
consideration as may be determined to be due to such Dissenting GSA Stockholder
pursuant to Section 92A.380 of the NGCL. If, after the Effective Time, such
Dissenting GSA Stockholder withdraws his or its demand for appraisal or fails to
perfect or otherwise loses his or its right of appraisal, in any case pursuant
to the NGCL, his or its Dissenting Shares shall be deemed to be converted as of
the Effective Time into the right to receive shares of New CSC Common Stock as
described in Section 1.4(c) hereof.
7.2 CSC Stockholders. Stockholders of CSC are not entitled to
dissenters' or appraisal rights under applicable state law in connection with
the Merger.
ARTICLE 8
MISCELLANEOUS
8.1 Non-survival of Representations and Warranties. None of the
representations and warranties in this Agreement or in any instrument delivered
pursuant to this Agreement shall survive the Effective Time. This Section 8.1
shall not limit any covenant or agreement of the parties hereto which by its
terms contemplates performance after the Effective Time of the Merger. In the
absence of fraud, rescission of this Agreement shall not be available as a
remedy to any of the parties hereto.
8.2 Notices. Any notices, requests, demands and other communications
required or permitted to be given hereunder shall be in writing and, except as
otherwise specified in writing, shall be given by personal delivery, facsimile
transmission, FedEx or UPS (or other similar courier service) or by registered
or certified mail, postage prepaid, return receipt requested:
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If to CSC: Compliance Systems Corporation
00 Xxxxx Xxxx
Xxxx Xxxx, Xxx Xxxx 00000
If to GSA: GSA Publications, Inc.
c/o Compliance Systems Corporation
00 Xxxxx Xxxx
Xxxx Xxxx, Xxx Xxxx 00000
or to such other addresses as any party hereto may from time to time give notice
of (complying as to delivery with the terms of this Section 8.2) to the other.
Notice by registered or certified mail shall be effective three (3) days after
deposit in the United States mail. Notice by any other permitted means will be
effective upon receipt.
8.3 Entire Agreement. This Agreement and the Documents constitute the
entire agreement among the parties hereto with respect to the transactions
contemplated hereby and supersede all prior agreements, understandings,
negotiations and discussions, both written and oral, among the parties hereto
with respect thereto. This Agreement may not be altered or otherwise amended
except pursuant to an instrument in writing signed by the parties hereto,
8.4 Benefits; Binding Effect; Assignment. This Agreement shall be for
the benefit of and binding upon the parties hereto, their respective successors
and, where applicable, assigns. No party may assign this Agreement or any of its
rights, interests or obligations hereunder without the prior approval of the
other party.
8.5 Waiver. No waiver of any of the provisions of this Agreement shall
be deemed or shall constitute a waiver of any other provision hereof (whether or
not similar), nor shall any such waiver constitute a continuing waiver unless
otherwise expressly so provided.
8.6 No Third Party Beneficiary. Nothing expressed or implied in this
Agreement is intended, or shall be construed, to confer upon or give rights to
any person or entity other than the parties hereto and their respective
successors and permitted assigns.
8.7 Severability. It is the desire and intent of the parties hereto that
the provisions of this Agreement be enforced to the fullest extent permissible
under the laws and public policies applied in each jurisdiction in which
enforcement is sought. Accordingly, if any particular provision of this
Agreement shall be adjudicated by a court of competent jurisdiction to be
invalid, prohibited or unenforceable for any reason so long as the economic or
legal substance of the transactions contemplated hereby is not affected in any
manner materially adverse to any party, such provision, as to such jurisdiction,
shall be ineffective, without invalidating the remaining provisions of this
Agreement or affecting the validity or enforceability of this Agreement or
affecting the validity or enforceability of such provision in any other
jurisdiction. Notwithstanding the foregoing, so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party, if such provision could be more narrowly drawn
so as not to be invalid, prohibited or unenforceable in such jurisdiction, it
shall, as to such jurisdiction, be so narrowly drawn, without invalidating the
remaining provisions of this Agreement or affecting the validity or
enforceability of such provision in any other jurisdiction.
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8.8 Expenses. Except as otherwise provided in this Agreement, all legal,
accounting and other costs and expenses incurred in connection with this
Agreement and the other Documents and the transactions contemplated hereby and
thereby shall be paid by the parties incurring such expenses.
8.9 Section Headings. The section and other headings contained in this
Agreement are for reference purposes only and shall not affect the meaning or
interpretation of any provisions of this Agreement.
8.10 Counterparts. This Agreement may be executed in any number of
counterparts and by the several parties hereto in separate counterparts, each of
which shall be deemed to be one and the same instrument,
8.11 Governing Law: Waiver of Jury Trial. THIS AGREEMENT AND ALL
DISPUTES, CONTROVERSIES OR CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR A BREACH THEREOF SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
DOMESTIC LAWS OF THE STATE OF NEVADA, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW
OR CONFLICTING PROVISION OR RULE THAT WOULD CAUSE THE LAWS OF ANY JURISDICTION
OTHER THAN THE STATE OF NEVADA TO BE APPLIED. EACH PARTY HERETO HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT IT MAY LEGALLY AND
EFFECTIVELY DO SO, TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING ARISING
HEREUNDER.
8.12 Construction. The provisions of this Agreement shall be construed
according to their fair meaning and neither for nor against any party hereto
irrespective of which party caused such provisions to be drafted. Each of the
parties acknowledge that it, he or she has been represented by an attorney in
connection with the preparation and execution of this Agreement. Unless
otherwise defined herein, all terms defined in this Agreement shall have the
defined meanings when used in any certificate, report or other document made or
delivered pursuant hereto. The words "hereof," "herein," "hereunder" and
"hereto" and words of similar import when used in this Agreement shall refer to
this Agreement as a whole and not to any particular provision of this Agreement.
The specification of any dollar amount in the representations and warranties or
otherwise in this Agreement is not intended and shall not be deemed to be an
admission or acknowledgment of the materiality of such amounts or items, nor
shall the same be used in any dispute or controversy between the parties to
determine whether any obligation, item or matter (whether or not described
herein or included in any schedule) is or is not material for purposes of this
Agreement.
[SIGNATURE PAGE FOLLOWS; REMAINDER OF PAGE INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, the Parties have executed this Agreement and Plan of
Merger as of the Effective Date.
CSC:
COMPLIANCE SYSTEMS CORPORATION:
By: _____________________________
Name: ___________________________
Title: _________________________
GSA:
GSA PUBLICATIONS, INC.:
By: _____________________________
Name: ___________________________
Title: _________________________
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