Exhibit 2.0
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AGREEMENT AND PLAN OF MERGER
among:
XXXXXXXXXX.XXX, INC.,
a Delaware corporation;
XXXXXXXXXX.XXX MERGER CORP.,
a Delaware corporation;
NET.CAPITOL, INC.,
a Delaware corporation;
and
the Representing Stockholders of Net.Capitol, Inc.,
listed on Exhibit A hereto
Dated as of November 17, 1999
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TABLE OF CONTENTS
Page
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SECTION 1 - DESCRIPTION OF TRANSACTION 1
1.1 Merger of Merger Sub into Net.Capitol 1
1.2 Effect of the Merger 1
1.3 Closing; Effective Time 1
1.4 Certificate of Incorporation, Bylaws and Directors and Officers 2
1.5 Conversion of Net.Capitol Stock 2
1.6 Additional Consideration 3
1.7 Closing of Net.Capitol's Transfer Books 3
1.8 Exchange of Certificates, Options and Warrants 3
1.9 Dissenting Shares 5
1.10 Tax Consequences 5
1.11 Accounting Treatment 5
1.12 Further Action 5
SECTION 2 - REPRESENTATIONS AND WARRANTIES OF
NET.CAPITOL AND THE REPRESENTING STOCKHOLDERS 6
2.1 Organization, Good Standing and Qualification 6
2.2 Subsidiaries 6
2.3 Capitalization; Voting Rights 6
2.4 Authorization; Binding Obligations 6
2.5 Financial Statements 7
2.6 Liabilities 7
2.7 Agreements; Action 7
2.8 Obligations to Related Parties 8
2.9 Absence of Changes 8
2.10 Title to Properties and Assets; Liens, Etc. 9
2.11 Patents and Trademarks 10
2.12 Compliance with Other Instruments 10
2.13 Litigation 11
2.14 Tax Returns and Payments 11
2.15 Employees 12
2.16 Employment Agreements 12
2.17 Registration Rights 12
2.18 Compliance with Legal Requirements; Consents 13
2.19 Full Disclosure 13
2.20 Year 2000 Compliance 14
2.21 Representing Stockholders 14
SECTION 3 - REPRESENTATIONS AND WARRANTIES OF
NETIVATION 15
3.1 Organization, Good Standing and Qualification 15
3.2 Subsidiaries 15
3.3 Capitalization; Voting Rights 15
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3.4 Authorization; Binding Obligations 16
3.5 Full Disclosure 16
SECTION 4 - CERTAIN COVENANTS OF NET.CAPITOL
AND THE REPRESENTING STOCKHOLDERS 16
4.1 Access and Investigation 16
4.2 Operation of Business 17
4.3 Notification; Updates to Schedule of Exceptions; Opportunity to Cure 19
4.4 No Negotiation 20
4.5 Purchaser Representative 21
SECTION 5 - ADDITIONAL COVENANTS OF THE PARTIES 21
5.1 Notification; Opportunity to Cure. 21
5.2 Filings and Consents 22
5.3 Disclosure Document 22
5.4 Consents in Lieu of a Special Meeting 22
5.5 Public Announcements 23
5.6 Best Efforts 23
5.7 Tax Matters 23
5.8 Committee Appointment 23
5.9 Capital Infusion 23
SECTION 6 - CONDITIONS PRECEDENT TO OBLIGATIONS
OF NETIVATION AND MERGER SUB 24
6.1 Accuracy of Representations 24
6.2 Performance of Covenants 24
6.3 Stockholder Approval 24
6.4 Consents 24
6.5 No Material Adverse Change 24
6.6 Agreements and Documents 24
6.7 Fairness Hearing 25
6.8 Lock-Up Agreements 25
6.9 No Restraints 25
6.10 No Proceedings 25
6.11 Securities Law Compliance 26
6.12 Dissenters Rights 26
6.13 Unaccredited Investors 26
6.14 Proceedings and Documents 26
6.15 Corporate Approvals 26
6.16 Board Approval 26
SECTION 7 - CONDITIONS PRECEDENT TO OBLIGATIONS
OF NET.CAPITOL AND THE REPRESENTING STOCKHOLDERS 26
7.1 Accuracy of Representations 26
7.2 Performance of Covenants 26
7.3 Consents 26
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7.4 Agreements and Documents 27
7.5 No Restraints 27
7.6 No Proceedings 27
7.7 Corporate Approvals 27
7.8 Fairness Hearing 27
SECTION 8 - TERMINATION 28
8.1 Termination Events 28
8.2 Termination Procedures 28
8.3 Effect of Termination 29
SECTION 9 - INDEMNIFICATION, ETC. 29
9.1 Survival of Representations, Warranties and Covenants 29
9.2 Indemnification by the Representing Stockholders 29
9.3 Contribution 30
9.4 Ceiling; Limitation on Additional Damages 30
9.5 Defense of Third Party Claims 30
9.6 Indemnity Reserve 31
9.7 Exercise of Remedies by Netivation Indemnitees Other Than Netivation 31
SECTION 10 - MISCELLANEOUS PROVISIONS 31
10.1 Representing Stockholders' Agent 31
10.2 Further Assurances 32
10.3 Fees and Expenses 32
10.4 Attorneys' Fees 33
10.5 Notices 33
10.6 Headings 34
10.7 Counterparts 34
10.8 Governing Law 34
10.9 Successors and Assigns 34
10.10 Remedies Cumulative; Specific Performance 35
10.11 Waiver 35
10.12 Amendments 35
10.13 Time of the Essence 35
10.14 Severability 35
10.15 Parties in Interest 35
10.16 Entire Agreement 35
10.17 Construction 36
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EXHIBITS
Exhibit A - Stockholders, Optionholders and Warrantholders
Exhibit B - Certain Definitions
Exhibit C - Director and Officer of Surviving Corporation
Exhibit D - Allocation of Merger Consideration Pursuant to
Section 1.5 and Section 1.6
Exhibit E - Form of Subscription Agreement
Exhibit F - Form of Employment and Noncompetition Agreement
Exhibit G - Form of Escrow Agreement
Exhibit H - Form of Release of Claims
Exhibit I1 - Form of Lock-Up Agreement for Preferred Stockholders,
Non-Former Employee, and Non-Current Employee
Common Stockholders
Exhibit I2 - Form of Lock-Up Agreement for Current Employee and
Former Employee Common Stockholders
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AGREEMENT AND PLAN
OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement") is made and
entered into as of November 17, 1999, by and among: XXXXXXXXXX.XXX, INC., a
Delaware corporation ("Netivation"), XXXXXXXXXX.XXX MERGER CORP., a Delaware
corporation and a wholly-owned subsidiary of Netivation ("Merger Sub"),
NET.CAPITOL, INC., a Delaware corporation ("Net.Capitol"), and certain
stockholders of Net.Capitol set forth on Exhibit A hereto (the "Representing
Stockholders"). Certain capitalized terms used in this Agreement are defined in
Exhibit B.
RECITALS
A. The parties intend to effect a merger of Merger Sub into
Net.Capitol in accordance with this Agreement and the Delaware General
Corporation Law ("Delaware Law") (the "Merger"). Upon consummation of the
Merger, Merger Sub will cease to exist, and Net.Capitol will become a wholly-
owned subsidiary of Netivation.
B. The stockholders, optionholders, and warrantholders of
Net.Capitol (the "Selling Stockholders") own an aggregate of (a) 7,274,223
shares of capital stock of Net.Capitol and (b) options and warrants to purchase
495,724 shares of capital stock of Net.Capitol (collectively, the "Net.Capitol
Stock"), constituting 100% of the Net.Capitol capital stock on a fully-diluted
basis.
AGREEMENT
The parties to this Agreement agree as follows:
SECTION 1 - DESCRIPTION OF TRANSACTION
1.1 Merger of Merger Sub into Net.Capitol . Upon the terms and
subject to the conditions set forth in this Agreement, at the Effective Time (as
defined in Section 1.3), Merger Sub shall be merged with and into Net.Capitol,
and the separate existence of Merger Sub shall cease. Net.Capitol will continue
as the surviving corporation in the Merger (the "Surviving Corporation").
1.2 Effect of the Merger . The Merger shall have the effects set
forth in this Agreement and in the applicable provisions of Delaware Law.
1.3 Closing; Effective Time . The consummation of the transactions
contemplated by this Agreement (the "Closing") shall take place at the offices
of Xxxxxxx, Xxxxxx, Xxxxxxx, Rock & Fields, Chartered, 000 X. Xxxxxxx Xxxxxxxxx,
00xx Xxxxx, Xxxxx, Xxxxx 00000 as soon as practical following the completion of
the Fairness Hearing described herein or at such other time and place
AGREEMENT AND PLAN OF MERGER - 1
as the parties may agree (the "Scheduled Closing Time"). (The date on which the
Closing actually takes place is referred to in this Agreement as the "Closing
Date.") Contemporaneously with or as promptly as practicable after the Closing,
a properly executed certificate of merger (the "Certificate of Merger"),
conforming to the requirements of Delaware Law, shall be filed with the
Secretary of State of the State of Delaware. The Merger shall become effective
at the time such Certificate of Merger is filed with and accepted by the
Secretary of State of the State of Delaware (the "Effective Time").
1.4 Certificate of Incorporation, Bylaws and Directors and Officers.
(a) The certificate of incorporation of Net.Capitol, as in effect
immediately prior to the Effective Time, shall be the certificate of
incorporation of the Surviving Corporation until thereafter amended as provided
by law; provided, however, that Article Fourth of the Certificate of
Incorporation shall be amended to read as follows: "The corporation shall have
authority to issue One Thousand (1,000) shares of Common Stock, and each such
share shall have a par value of one cent ($.01)."
(b) The bylaws of Net.Capitol, as in effect immediately prior to the
Effective Time, shall be the bylaws of the Surviving Corporation until
thereafter amended.
(c) The directors and officers of the Surviving Corporation
immediately after the Effective Time shall be the individuals identified on
Exhibit C.
1.5 Conversion of Net.Capitol Stock. Subject to Sections 1.8(c) and 1.9,
at the Effective Time, by virtue of the Merger and without any further action on
the part of Netivation, Merger Sub, Net.Capitol or any stockholder of
Net.Capitol: (i) each share of Common Stock of Net.Capitol issued and
outstanding immediately prior to the Effective Time shall be converted into the
right to receive 0.2123566 shares of Common Stock of Netivation (the "Netivation
Stock"), (ii) each share of Series A Preferred Stock of Net.Capitol issued and
outstanding immediately prior to the Effective Time shall be converted into the
right to receive 0.2123566 shares of Netivation Stock, (iii) each share of
Series B Preferred Stock of Net.Capitol issued and outstanding immediately prior
to the Effective Time shall be converted into the right to receive 0.2123566
shares of Netivation Stock, (iv) each share of Series C Preferred Stock of
Net.Capitol issued and outstanding immediately prior to the Effective Time shall
be converted into the right to receive 0.2123566 shares of Netivation Stock and
(v) each option or warrant to purchase a share of Common Stock of Net.Capitol
outstanding immediately prior to the Effective Time shall be converted into a
fully-vested option or warrant, as the case may be, to purchase 0.2123566 shares
of Netivation Stock as provided above (together the "Merger Consideration"). The
exercise price of the options and warrants to purchase Netivation Stock shall be
economically
AGREEMENT AND PLAN OF MERGER - 2
equivalent to the exercise price of the options and warrants to purchase Common
Stock of Net.Capitol exchanged therefor. For example, if a Net.Capitol Common
Stock option is exercisable for $1 per share, then the Netivation Stock option
exchanged therefor shall be exercisable for $4.70906 per share after giving
effect to the 4.70906:1 conversion ratio. All outstanding shares of Net.Capitol
capital stock, and other rights to acquire Net.Capitol capital stock shall be
exchanged for One Million Six Hundred Fifty Thousand (1,650,000) shares (or
options or warrants to purchase shares, as the case may be) of Netivation Stock.
Each share of common stock of Merger Sub issued and outstanding immediately
prior to the Effective Time shall be converted into one (1) share of common
stock of the Surviving Corporation. The Merger Consideration to be received by
the Selling Stockholders is set forth on Exhibit D. If, between the date of this
Agreement and the Closing Date, the shares of capital stock of Net.Capitol or
the Netivation Stock is changed into a different number or class of shares by
reason of any stock dividend, subdivision, reclassification, recapitalization,
split-up, reverse split, combination or similar transaction, the Merger
Consideration shall be appropriately adjusted.
1.6 Additional Consideration. At Closing, Netivation shall repay
in full the outstanding loans in the aggregate principal amount of Seventy-six
Thousand Five Hundred Ninety-two and 25/100 Dollars ($76,592.25) owed by
Net.Capitol to Oron Xxxxxxx and Xxxx Xxxx. At Closing, Netivation shall also
deliver the aggregate sum of Four Hundred Ten Thousand Two Hundred Twenty
Dollars ($410,220) in readily available funds (the "Additional Merger
Consideration") to the holders of Net.Capitol Preferred Stock on the basis of
each such holder's capital investment in such Preferred Stock as provided on
Exhibit D.
1.7 Closing of Net.Capitol's Transfer Books. At the Effective Time,
holders of certificates representing Net.Capitol Stock that were outstanding
immediately prior to the Effective Time shall cease to have any rights as
stockholders of Net.Capitol, and the stock transfer books of Net.Capitol shall
be closed with respect to all shares of such capital stock outstanding
immediately prior to the Effective Time, except with respect to the Selling
Stockholders' right of first refusal regarding 15,000 shares of Net.Capitol
Stock owned by Xxxx Xxxx. Except as specified in the preceding sentence, no
further transfer of any such capital stock of Net.Capitol shall be made on such
stock transfer books after the Effective Time. If, after the Effective Time, a
valid certificate previously representing any of such capital stock of
Net.Capitol (a "Net.Capitol Stock Certificate") is presented to the Surviving
Corporation or Netivation, such Net.Capitol Stock Certificate shall be canceled
and shall be exchanged as provided in Section 1.8.
1.8 Exchange of Certificates, Options and Warrants.
(a) At or as soon as practicable after the Effective Time,
Netivation will send to each holder of a Net.Capitol Stock Certificate a letter
of transmittal and instructions for use in customary form and containing such
provisions as may reasonably be required for use in effecting the surrender of
such Net.Capitol Stock Certificate for payment therefor and conversion thereof.
Upon
AGREEMENT AND PLAN OF MERGER - 3
surrender of a Net.Capitol Stock Certificate to Netivation for exchange,
together with a duly executed letter of transmittal and such other documents as
may be reasonably required by Netivation, the holder of such Net.Capitol Stock
Certificate shall be entitled to receive in exchange therefor certificates
representing the number of whole shares of Netivation Stock that such holder has
the right to receive pursuant to the provisions of this Section 1 and the
Net.Capitol Stock Certificate so surrendered shall be canceled. Until
surrendered as contemplated by this Section 1.8, each Net.Capitol Stock
Certificate shall be deemed, from and after the Effective Time, to represent
only the right to receive upon such surrender the Merger Consideration and, to
the extent applicable, the Additional Merger Consideration as contemplated by
this Section 1. If any Net.Capitol Stock Certificate shall have been lost,
stolen or destroyed, Netivation may, in its discretion and as a condition
precedent to the issuance of any certificates representing Netivation Stock,
require the owner of such lost, stolen or destroyed Net.Capitol Stock
Certificate to provide an appropriate affidavit and to deliver a bond (in such
sum as Netivation may reasonably direct) as indemnity. At or as soon as possible
after the Effective Time, Netivation will exchange with each holder of an option
or warrant to purchase shares of Net.Capitol capital stock an option or warrant
to purchase Netivation Stock.
(b) No dividends or other distributions declared or made with respect
to Netivation Stock with a record date after the Effective Time shall be paid to
the holder of any unsurrendered Net.Capitol Stock Certificate with respect to
the shares of Netivation Stock represented thereby, and no cash payment in lieu
of any fractional share shall be paid to any such holder, until such holder
surrenders such Net.Capitol Stock Certificate in accordance with this Section
1.8 (at which time such holder shall be entitled to receive all such accrued
dividends and distributions and such accrued cash payment).
(c) No fractional shares of Netivation Stock shall be issued in
connection with the Merger. In lieu of such fractional shares, any holder of
capital stock of Net.Capitol who would otherwise be entitled to receive a
fraction of a share of Netivation Stock shall, upon surrender of such holder's
Net.Capitol Stock Certificate(s), be paid in cash the dollar amount (rounded to
the nearest whole cent), without interest, determined by multiplying such
fraction by the closing price of one share of Netivation Stock as reported on
the Nasdaq National Market on the Closing Date.
(d) Each certificate representing any of the shares of Netivation
Stock to be issued in the Merger shall bear a legend identical or similar in
effect to the following legend (together with any other legend or legends
required by applicable state securities laws or otherwise):
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE ISSUED PURSUANT TO
SECTION 3(a)(10) OF THE SECURITIES ACT OF 1933 (THE "ACT") AND MAY NOT BE
AGREEMENT AND PLAN OF MERGER - 4
OFFERED, SOLD OR OTHERWISE TRANSFERRED, ASSIGNED, PLEDGED OR
HYPOTHECATED UNLESS CERTAIN RESTRICTIONS ARE SATISFIED AND UNLESS THE
SECURITIES ARE EITHER REGISTERED UNDER THE ACT OR AN EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE ACT IS AVAILABLE."
(e) Netivation and the Surviving Corporation shall be entitled to
deduct and withhold from any consideration payable or otherwise deliverable to
any holder or former holder of capital stock of Net.Capitol pursuant to this
Agreement such amounts as Netivation or the Surviving Corporation may be
required to deduct or withhold therefrom under the Code or under any provision
of state, local or foreign tax law. To the extent such amounts are so deducted
or withheld, such amounts shall be treated for all purposes under this Agreement
as having been paid to the Person to whom such amounts would otherwise have been
paid.
1.9 Dissenting Shares. Notwithstanding anything in this Agreement to the
contrary, shares of capital stock of Net.Capitol that are issued and outstanding
immediately prior to the Effective Time and that are held by stockholders who
have not voted such shares in favor of the Merger and who have delivered a
written demand for appraisal of such shares in the manner provided in Section
262 of the Delaware Law ("Dissenting Shares") shall not be canceled and
converted in accordance with Section 1.5 unless and until such holder shall have
failed to perfect, or shall have effectively withdrawn or lost, such holder's
right to appraisal and payment under Section 262 of the Delaware Law. If such
holder shall have so failed to perfect, or shall have effectively withdrawn or
lost such right, such holder's capital stock of Net.Capitol shall thereupon be
deemed to have been canceled and converted as described in Section 1.5 at the
Effective Time, and each such share shall represent solely the right to receive
the Merger Consideration and, to the extent applicable, the Additional Merger
Consideration described in Sections 1.5 and 1.6. Net.Capitol shall give prompt
notice of any demands received by Net.Capitol for appraisal of its shares, and,
prior to the Effective Time, Netivation shall have the right to participate in
all negotiations and proceedings with respect to such demands. Prior to the
Effective Time, Net.Capitol shall not, except with the prior written consent of
Netivation, make any payment with respect to, or settle or offer to settle, any
such demands. From and after the Effective Time, no stockholder of Net.Capitol
who has demanded appraisal rights as provided in Section 262(d) of the Delaware
Law shall be entitled to vote such holder's shares of Netivation Stock or
capital stock of Net.Capitol for any purpose or to receive payment of dividends
or other distributions with respect to such holder's shares (except dividends
and other distributions payable to stockholders of record of Net.Capitol at a
date which is prior to the Effective Time). Any stockholder who has effectively
withdrawn said holder's claim for appraisal rights prior to the Effective Time
shall be entitled to receive dividends or other
AGREEMENT AND PLAN OF MERGER - 5
distributions with respect to such holder's shares in the same manner as if such
appraisal rights had not been demanded.
1.10 Tax Consequences. For federal income tax purposes, the Merger
is intended to constitute a reorganization within the meaning of Section 368 of
the Code. The parties to this Agreement hereby adopt this Agreement as a "plan
of reorganization" within the meaning of Sections 1.368-2(g) and 1.368-3(a) of
the United States Treasury Regulations.
1.11 Accounting Treatment. For accounting purposes, the Merger is
intended to be treated as a "purchase."
1.12 Further Action. If, at any time after the Effective Time, any
further action is determined by Netivation to be necessary or desirable to carry
out the purposes of this Agreement or to vest the Surviving Corporation or
Netivation with full right, title and possession of and to all rights and
property of Net.Capitol, the officers and directors of the Surviving Corporation
and Netivation shall be fully authorized (in the name of Net.Capitol and
otherwise) to take such action.
SECTION 2 - REPRESENTATIONS AND WARRANTIES OF
NET.CAPITOL AND THE REPRESENTING STOCKHOLDERS
Net.Capitol and each of the Representing Stockholders jointly and
severally represent and warrant, to the Netivation Indemnitees, as follows:
2.1 Organization, Good Standing and Qualification. Net.Capitol is
a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware. Net.Capitol has all requisite corporate power
and authority to own and operate its properties and assets, to execute and
deliver the Transactional Agreements, to carry out the provisions of the
Transactional Agreements and to carry on its business as presently conducted and
as presently proposed to be conducted. Net.Capitol is duly qualified and is
authorized to do business and is in good standing as a foreign corporation in
all jurisdictions in which the nature of its activities and of its properties
(both owned and leased) make such qualifications necessary, except for those
jurisdictions in which failure to do so would not have a Material Adverse Effect
on Net.Capitol or its business. Net.Capitol has made available to Netivation
true, correct and complete copies of Net.Capitol's certificate of incorporation
and bylaws, each as amended to date.
2.2 Subsidiaries. Except as set forth in Schedule 2.2, Net.Capitol
owns no equity securities of any other corporation, limited partnership or
similar entity and Net.Capitol is not a participant in any joint venture,
partnership or similar arrangement.
AGREEMENT AND PLAN OF MERGER - 6
2.3 Capitalization; Voting Rights. The authorized capital stock of
Net.Capitol consists of (a) 12,400,000 shares of Common Stock, of which
5,494,560 shares are issued and outstanding, and (b) 12,600,000 shares of
Preferred Stock, of which 2,000,000 shares are designated Series A Preferred
Stock, of which 600,000 shares are issued and outstanding, of which 2,000,000
shares are designated Series B Preferred Stock, of which 329,656 shares are
issued and outstanding, and of which 3,000,000 shares are designated Series C
Preferred Stock, of which 850,007 shares are issued and outstanding. Schedule
2.3 sets forth the names of (i) the stockholders of Net.Capitol and the number
of shares of capital stock owned of record by each such stockholder and (ii) the
names of all holders of rights to acquire shares of capital stock of Net.Capitol
and the type of security, number of shares and purchase price applicable to such
securities. The Selling Stockholders together own all of the outstanding shares
of capital stock of Net.Capitol. All issued and outstanding shares of
Net.Capitol's Common Stock and Preferred Stock (i) have been duly authorized and
validly issued, (ii) are fully paid and nonassessable and (iii) were issued in
compliance with all applicable state and federal laws concerning the issuance of
securities. Except as set forth in Schedule 2.3, there are no outstanding
options, warrants, rights (including conversion or preemptive rights and rights
of first refusal), proxy or stockholder agreements, or agreements of any kind
for the purchase or acquisition from Net.Capitol of any of its securities.
2.4 Authorization; Binding Obligations. Net.Capitol has the power
and corporate authority to enter into and to perform its obligations under the
Transactional Agreements to which Net.Capitol is or may become a party. This
Agreement constitutes the legal, valid and binding obligation of Net.Capitol,
enforceable against Net.Capitol in accordance with its terms, subject to (i)
laws of general application relating to bankruptcy, insolvency, moratorium, and
the relief of debtors; (ii) rules of law governing specific performance,
injunctive relief and other equitable remedies, whether in a court of law or
equity; and (iii) rules of law governing indemnity and contribution. Upon the
execution of each of the other Transactional Agreements at the Closing, each of
such other Transactional Agreements will constitute the legal, valid and binding
obligation of Net.Capitol, enforceable against Net.Capitol in accordance with
its terms, subject to (i) laws of general application relating to bankruptcy,
insolvency, moratorium, and the relief of debtors; (ii) rules of law governing
specific performance, injunctive relief and other equitable remedies, whether in
a court of law or equity; and (iii) rules of law governing indemnity and
contribution.
2.5 Financial Statements. Net.Capitol has delivered to Netivation
(i) its audited balance sheet as at December 31, 1998 and audited statement of
income (loss) and cash flows for the twelve months ending December 31, 1998 and
(ii) its unaudited balance sheet as at June 30, 1999 (the "Statement Date") and
unaudited consolidated statement of income (loss) and cash flows for the six-
month period ending on the Statement Date (collectively, the "Net.Capitol
Financial Statements"). The Net.Capitol Financial Statements, together with the
notes thereto, are complete and correct in all material respects, have been
prepared
AGREEMENT AND PLAN OF MERGER - 7
in accordance with generally accepted accounting principles applied on a
consistent basis throughout the periods indicated, except as disclosed therein,
and present fairly the financial condition and position of Net.Capitol for the
periods covered thereby; provided, however, that the unaudited financial
statements are subject to normal recurring year-end audit adjustments (which are
not expected to be material), and do not contain all footnotes required under
generally accepted accounting principles.
2.6 Liabilities. Except as set forth in Schedule 2.6, Net.Capitol
has no material liabilities and, to the Knowledge of Net.Capitol, has no
material contingent liabilities not otherwise disclosed in the Net.Capitol
Financial Statements, except current liabilities incurred in the Ordinary Course
of Business subsequent to the Statement Date which have not been, either in any
individual case or in the aggregate, materially adverse. All obligations of
Net.Capitol, other than those incurred in the Ordinary Course of Business, to
affiliates, officers, directors and stockholders of Net.Capitol are disclosed on
the Net.Capitol Financial Statements.
2.7 Agreements; Action.
(a) Except as set forth in Schedule 2.7(a), there are no
agreements, understandings, instruments, contracts, proposed transactions,
judgments, orders, writs or decrees to which Net.Capitol is a party or to its
Knowledge by which it is bound which may involve (i) obligations (contingent or
otherwise) of, or payments to, Net.Capitol in excess of $75,000, or (ii) the
license of any patent, copyright, trade secret or other proprietary right to or
from Net.Capitol (other than licenses arising from the purchase of "off the
shelf" or other standard products), or (iii) provisions restricting or affecting
the development, manufacture or distribution of Net.Capitol's products or
services or (iv) indemnification by Net.Capitol with respect to infringements of
proprietary rights.
(b) Except as set forth in Schedule 2.7(b), Net.Capitol has not
(i) incurred any indebtedness for money borrowed or any other liabilities (other
than with respect to dividend obligations, distributions, indebtedness and other
obligations incurred in the Ordinary Course of Business or as disclosed in the
Net.Capitol Financial Statements) individually in excess of $75,000 or, in
excess of $75,000 in the aggregate, (ii) made any loans or advances to any
person, other than ordinary advances for travel expenses or (iii) sold,
exchanged or otherwise disposed of any of its assets or rights, other than the
sale of its inventory and services in the Ordinary Course of Business.
(c) For the purposes of subsections (a) and (b) above, all
indebtedness, liabilities, agreements, understandings, instruments, contracts
and proposed transactions involving the same person or entity (including persons
or entities Net.Capitol has reason to believe are affiliated therewith) shall be
AGREEMENT AND PLAN OF MERGER - 8
aggregated for the purpose of meeting the individual minimum dollar amounts of
such subsections.
2.8 Obligations to Related Parties. Except as disclosed in the
Schedules or in the Financial Statements, there are no obligations of
Net.Capitol to officers, directors, stockholders, or employees of Net.Capitol
other than (a) for payment of salary and bonuses for services rendered, (b)
reimbursement for reasonable expenses incurred on behalf of Net.Capitol and (c)
for other standard employee benefits made generally available to all employees.
No such officer, director or stockholder, or any member of their immediate
families is, directly or indirectly, interested in any material contract with
Net.Capitol (other than such contracts as relate to any such person's ownership
of capital stock or other securities of Net.Capitol). Net.Capitol is not a
guarantor or indemnitor of any indebtedness of any other person, firm or
corporation.
2.9 Absence of Changes. Except as set forth in Schedule 2.9, since
the Statement Date, there has not been:
(a) Any change in the assets, liabilities, financial condition or
operations of Net.Capitol from that reflected in the Net.Capitol Financial
Statements, other than changes in the Ordinary Course of Business, none of which
individually or in the aggregate has had or is expected to have a Material
Adverse Effect on such assets, liabilities, financial condition or operations of
Net.Capitol;
(b) Any resignation or termination of any key officers of
Net.Capitol; and Net.Capitol, to its Knowledge, does not know of the impending
resignation or termination of employment of any such officer;
(c) Any material change, except in the Ordinary Course of
Business, in the contingent obligations of Net.Capitol by way of guaranty,
endorsement, indemnity, warranty or otherwise;
(d) Any damage, destruction or loss, whether or not covered by
insurance, materially and adversely affecting the properties, business or
prospects or financial condition of Net.Capitol;
(e) Any waiver by Net.Capitol of a valuable right or of a
material debt owed to it;
(f) Any direct or indirect loans made by Net.Capitol to any
stockholder, employee, officer or director of Net.Capitol, other than advances
made in the Ordinary Course of Business;
(g) Any material change in any compensation arrangement or
agreement with any employee, officer, director or stockholder;
AGREEMENT AND PLAN OF MERGER - 9
(h) Any declaration or payment of any dividend or other
distribution of the assets of Net.Capitol;
(i) Any labor organization activity;
(j) Any debt, obligation or liability incurred, assumed or
guaranteed by Net.Capitol, except those for immaterial amounts and for current
liabilities incurred in the Ordinary Course of Business;
(k) Any sale, assignment or transfer of any patents, trademarks,
copyrights, trade secrets or other intangible assets;
(l) Any change in any material agreement to which Net.Capitol
is a party or by which it is bound which materially and adversely affects the
business, assets, liabilities, financial condition, operations or prospects of
Net.Capitol; or
(m) Any other event or condition of any character that, either
individually or cumulatively, has materially and adversely affected the
business, assets, liabilities, financial condition, operations or prospects of
Net.Capitol. For purposes of this subsection (m), a material and adverse effect
shall only be deemed to occur if its monetary impact exceeds, or with the
passage of time, will exceed $75,000.
2.10 Title to Properties and Assets; Liens, Etc. Net.Capitol has
good and marketable title to its properties and assets, and good title to its
leasehold estates, in each case subject to no mortgage, pledge, lien, lease,
encumbrance or charge, other than (i) those resulting from taxes which have not
yet become due and payable or which are being disputed in good faith by
Net.Capitol, as disclosed in Schedule 2.10, (ii) minor liens and encumbrances
which do not materially detract from the value of the property subject thereto
or materially impair the operations of Net.Capitol and (iii) those that have
arisen from purchase money security interests in an amount not to exceed
$50,000. Except for the necessity of normal upgrades and maintenance, all
facilities, machinery, equipment, fixtures, vehicles and other properties owned,
leased or used by Net.Capitol are in good operating condition and repair and are
reasonably fit and usable for the purposes for which they are being used.
Net.Capitol is in compliance with all material terms of each lease to which it
is a party or is otherwise bound.
2.11 Patents and Trademarks. Except as specified in Schedule 2.11,
to the Knowledge of Net.Capitol, Net.Capitol owns or possesses sufficient legal
rights to all trademarks, service marks, trade names, copyrights, trade secrets,
licenses, patents, information and other proprietary rights and processes
necessary for its business as now conducted and as proposed to be conducted,
without any known infringement of the rights of others. There are no
outstanding options, licenses or agreements of any kind relating to the
foregoing, nor is Net.Capitol bound by or a party to any options, licenses or
agreements of any kind with respect
AGREEMENT AND PLAN OF MERGER - 10
to the patents, trademarks, service marks, trade names, copyrights, trade
secrets, licenses, information and other proprietary rights and processes of any
other person or entity other than such licenses or agreements arising from the
purchase of "off the shelf" or standard products. Net.Capitol has not received
any written communications alleging that Net.Capitol has violated or, by
conducting its business as proposed, would violate any of the patents,
trademarks, service marks, trade names, copyrights or trade secrets or other
proprietary rights of any other person or entity. To Net.Capitol's Knowledge,
none of Net.Capitol's employees is obligated under any contract (including
licenses, covenants or commitments of any nature) or other agreement, or subject
to any judgment, decree or order of any court or administrative agency, that
would interfere with their duties to Net.Capitol's business by the employees of
Net.Capitol. The conduct of Net.Capitol's business as proposed, will not, to the
Knowledge of Net.Capitol, conflict with or result in a breach of the terms,
conditions or provisions of, or constitute a default under, any contract,
covenant or instrument under which any employee is now obligated. Net.Capitol
does not believe it is, nor will it be, necessary to utilize any inventions,
trade secrets or proprietary information of any of its employees made prior to
their employment by Net.Capitol, except for inventions, trade secrets or
proprietary information that have been assigned to Net.Capitol.
2.12 Compliance with Other Instruments. To the knowledge of
Net.Capitol, Net.Capitol is not in violation or default of any term of its
certificate of incorporation or bylaws, or of any provision of any mortgage,
indenture, contract, agreement, instrument or contract to which it is party or
by which it is bound or of any judgment, decree, order, writ or, to its
Knowledge, any statute, rule or regulation applicable to Net.Capitol which would
materially and adversely affect the business, assets, liabilities, financial
condition, operations or prospects of Net.Capitol. The execution, delivery, and
performance of and compliance with the Transactional Agreements will not, with
or without the passage of time or giving of notice, result in any such material
violation, or be in conflict with or constitute a default under any such term,
or result in the creation of any mortgage, pledge, lien, encumbrance or charge
upon any of the properties or assets of Net.Capitol or the suspension,
revocation, impairment, forfeiture or nonrenewal of any permit, license,
authorization or approval applicable to Net.Capitol, its business or operations
or any of its assets or properties.
2.13 Litigation. Except as set forth in Schedule 2.13, there is no
action, suit, proceeding or investigation pending, or to the Knowledge of
Net.Capitol, currently threatened against Net.Capitol that questions the
validity of this Agreement or Transactional Agreements or the right of
Net.Capitol to enter into any of such agreements, or to consummate the
transactions contemplated hereby or thereby, or which might result, either
individually or in the aggregate, in any material adverse change in the assets,
condition, affairs or prospects of Net.Capitol, financially or otherwise, or any
change in the current equity ownership of Net.Capitol, nor is Net.Capitol aware
that there is any basis for the foregoing. The foregoing includes, without
limitation, actions pending or threatened (or any basis therefor known to
Net.Capitol) involving the prior employment of any of
AGREEMENT AND PLAN OF MERGER - 11
Net.Capitol's employees, their use in connection with Net.Capitol's business of
any information or techniques allegedly proprietary to any of their former
employers, or their obligations under any agreements with prior employers.
Net.Capitol is not a party or subject to the provisions of any order, writ,
injunction, judgment or decree of any court or government agency or
instrumentality. There is no action, suit, proceeding or investigation by
Net.Capitol currently pending or which Net.Capitol intends to initiate.
2.14 Tax Returns and Payments.
(a) Each tax required to have been paid, or claimed by any
Governmental Body to be payable, by Net.Capitol (whether pursuant to any tax
return or otherwise) has been duly paid in full and on a timely basis. Any tax
required to have been withheld or collected by Net.Capitol, including with
respect to employees, has been duly withheld and collected; and (to the extent
required) each such tax has been paid to the appropriate Governmental Body.
(b) Schedule 2.14(b) of the Disclosure Schedule accurately identifies
all tax returns required to be filed by or on behalf of Net.Capitol with any
Governmental Body with respect to any taxable period ending on or before the
Closing Date ("Net.Capitol Returns"). All taxes required to be paid by
Net.Capitol for the fiscal year 1998 have either been paid in full or shall not
result in any liability to Net.Capitol. All Net.Capitol Returns (i) have been
or will be filed when due and (ii) have been, or will be when filed, accurately
and completely prepared in full compliance with all applicable legal
requirements. All amounts shown on the Net.Capitol Returns to be due on or
before the Closing Date have been or will be paid on or before the Closing Date.
Net.Capitol has delivered to Netivation accurate and complete copies of all
Net.Capitol Returns filed since inception.
(c) There have been no examinations or audits of any Net.Capitol
Return, and, to the Knowledge of Net.Capitol, no such examination or audit has
been proposed or scheduled by any Governmental Body. Net.Capitol has delivered
to Netivation accurate and complete copies of all audit reports and similar
documents (to which Net.Capitol has access) relating to the Net.Capitol Returns.
(d) No claim or Proceeding is pending or, to the Knowledge of
Net.Capitol, has been threatened against Net.Capitol in respect of any tax.
There are no unsatisfied Liabilities for taxes (including Liabilities for
interest, additions to tax and penalties thereon and related expenses) with
respect to any notice of deficiency or similar document received by Net.Capitol.
There are no liens for taxes upon any of the assets of Net.Capitol, except liens
for current taxes not yet due and payable. Net.Capitol has not entered into or
become bound by any agreement or consent pursuant to Section 341(f) of the Code.
(e) To the Knowledge of Net.Capitol, there is no agreement, plan,
arrangement or other contract covering any employee or
AGREEMENT AND PLAN OF MERGER - 12
independent contractor or former employee or independent contractor of
Net.Capitol that, individually or collectively, could give rise, directly or
indirectly, to the payment of any amount that would not be deductible pursuant
to Section 280G or Section 162 of the Code. Net.Capitol is not, and has never
been, a party to or bound by any tax indemnity agreement, tax sharing agreement,
tax allocation agreement or similar contract.
2.15 Employees. Except as set forth in Schedule 2.15, Net.Capitol is
not a party to or bound by any currently effective written (or to its Knowledge,
oral) employment contract, deferred compensation arrangement, bonus plan,
incentive plan, profit sharing plan, retirement agreement or other employee
compensation plan or agreement. To the Knowledge of Net.Capitol, no employee of
Net.Capitol, nor any consultant with whom Net.Capitol has contracted, is in
violation of any term of any employment contract, proprietary information
agreement or any other agreement relating to the right of any such individual to
be employed by, or to contract with, Net.Capitol because of the nature of the
business to be conducted by Net.Capitol; and to the Knowledge of Net.Capitol the
continued employment by Net.Capitol of its present employees, and the
performance of Net.Capitol's contracts with its independent contractors, will
not result in any such violation. Net.Capitol has not received any notice
alleging that any such violation has occurred. Except as set forth in Schedule
2.15 or as contemplated herein, no employee of Net.Capitol has been granted the
right to continued employment by Net.Capitol or to any material compensation
following termination of employment with Net.Capitol. To the Knowledge of
Net.Capitol, no officer or key employee, or any group of key employees, intends
to terminate their employment with Net.Capitol, nor does Net.Capitol have a
present intention to terminate the employment of any officer, key employee or
group of key employees.
2.16 Employment Agreements. Each current employee (including key
management personnel), officer and consultant of Net.Capitol has executed an
Employment Agreement, Confidentiality, Non-Competition, and Stock Option
Agreement, or other agreement whereby the employee has agreed not to disclose
proprietary information owned or developed by Net.Capitol. To the knowledge of
Net.Capitol, no current employee, officer or consultant of Net.Capitol has
excluded works or inventions made prior to his or her employment with
Net.Capitol from his or her assignment of inventions pursuant to such employee,
officer or consultant's particular agreement.
2.17 Registration Rights. Net.Capitol is presently not under any
obligation, and has not granted any rights, to register any of Net.Capitol's
presently outstanding securities or any of its securities that may hereafter be
issued.
2.18 Compliance with Legal Requirements; Consents.
(a) To the Knowledge of Net.Capitol, Net.Capitol is in full
compliance with each legal requirement that is applicable to it or to the
conduct of its business or the ownership or use of any of its assets as
currently being
AGREEMENT AND PLAN OF MERGER - 13
conducted, except where the failure to comply with each such legal requirement
has not had and will not have a Material Adverse Effect on Net.Capitol.
(b) Except for the automatic vesting provisions of various Net.Capitol
stock options, neither the execution and delivery of any of the Transactional
Agreements, nor the consummation or performance of any of the Transactions, will
directly or indirectly (with or without notice or lapse of time):
(i) contravene, conflict with or result in a violation of (A)
any of the provisions of the Net.Capitol's certificate of incorporation or
bylaws or (B) any resolution adopted by Net.Capitol's stockholders or
Net.Capitol's board of directors;
(ii) contravene, conflict with or result in a violation of, or
give any Governmental Body or other Person the right to exercise any remedy or
obtain any relief under, any legal requirement or any order to which
Net.Capitol, or any of the assets owned or used by Net.Capitol, is subject;
(iii) contravene, conflict with or result in a violation or
Breach (resulting in a Material Adverse Effect) of, or result in a default
under, any provision of any contract to which Net.Capitol is a party; or
(iv) give any Person the right to (A) declare a default or
exercise any remedy under any contract to which Net.Capitol is a party, (B)
accelerate the maturity or performance of any contract to which Net.Capitol is a
party or (C) cancel, terminate or modify any contract to which Net.Capitol is a
party.
(c) Net.Capitol will not be required to make any filing with or give
any notice to, or to obtain any consent from, any Person other than the Selling
Shareholders in connection with the execution and delivery of any of the
Transactional Agreements or the consummation or performance of any of the
Transactions.
2.19 Full Disclosure. This Agreement does not (i) contain any
representation, warranty or information that is false or misleading with respect
to any material fact or (ii) omit to state any material fact necessary in order
to make the representations, warranties and information of or with respect to
Net.Capitol and the Representing Stockholders contained and to be contained
herein (in light of the circumstances under which such representations,
warranties and information were or will be made or provided) not false or
misleading. Net.Capitol has provided Netivation and Netivation's
Representatives with full and complete access to all of Net.Capitol's records
and other documents and data.
2.20 Year 2000 Compliance. Net.Capitol has purchased computer hardware
and software that has been represented by the manufacturers of such hardware and
software to be Year 2000 compliant. Assuming all
AGREEMENT AND PLAN OF MERGER - 14
representations and warranties made to Net.Capitol by any manufacturer, vendor,
supplier or installer of the hardware and software purchased by the Company are
true and correct in all respects, all computer applications that are material to
Net.Capitol's business and operations are reasonably expected to be Year 2000
compliant except to the extent that a failure to do so could not reasonably be
expected to have a Material Adverse Effect. The foregoing representation is
necessarily limited by those limitations and exclusions to any Year 2000
compliance statements made by the vendor, manufacturer or supplier of the
hardware and software.
2.21 Representing Stockholders.
(a) Authorization; Binding Obligations. Each Representing Stockholder
represents and warrants that (i) he, she or it has the absolute and unrestricted
right, power and authority to enter into and to perform his, her or its
obligations under each of the Transactional Agreements to which such
Representing Stockholder is or may become a party; (ii) this Agreement
constitutes his, her or its legal, valid and binding obligation, enforceable
against such Representing Stockholder in accordance with its terms, subject to
(A) laws of general application relating to bankruptcy, insolvency, moratorium,
and the relief of debtors; (B) rules of law governing specific performance,
injunctive relief and other equitable remedies, whether in a court of law or
equity; and (C) rules of law governing indemnity and contribution; and (iii)
upon the execution of each of the other Transactional Agreements at the Closing,
each of such other Transactional Agreements will constitute the legal, valid and
binding obligation of such Representing Stockholder, enforceable against such
Representing Stockholder in accordance with its terms, subject to (A) laws of
general application relating to bankruptcy, insolvency, moratorium, and the
relief of debtors; (B) rules of law governing specific performance, injunctive
relief and other equitable remedies, whether in a court of law or equity; and
(C) rules of law governing indemnity and contribution.
(b) Consents. Each Representing Stockholder represents and warrants
that he, she or it will not be required to make any filing with or give any
notice to, or to obtain any consent from, any Person other than the Selling
Stockholders in connection with the execution and delivery of any of the
Transactional Agreements or the consummation or performance of any of the
Transactions.
(c) Accredited Investor. Except as set forth in Schedule 2.21(c),
each Selling Stockholder represents and warrants that he, she or it is an
"accredited investor" as such term is defined in Rule 501 under the Securities
Act of 1933, as amended (the "Securities Act"). Net.Capitol has no more than 35
non-accredited investors.
AGREEMENT AND PLAN OF MERGER - 15
SECTION 3 - REPRESENTATIONS AND WARRANTIES OF
NETIVATION
Netivation represents and warrants to Net.Capitol and the Representing
Stockholders as follows:
3.1 Organization, Good Standing and Qualification.
(a) Netivation is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware. Netivation has all
requisite corporate power and authority to own and operate its properties and
assets, to execute and deliver this Agreement and the Transactional Agreements,
to issue and sell the Netivation Stock, to carry out the provisions of this
Agreement and the Transactional Agreements and to carry on its business as
presently conducted and as presently proposed to be conducted. Netivation is
duly qualified and is authorized to do business and is in good standing as a
foreign corporation in all jurisdictions in which the nature of its activities
and of its properties (both owned and leased) make such qualifications
necessary, except for those jurisdictions in which failure to do so would not
have a Material Adverse Effect on Netivation or its business. Netivation has
made available to Net.Capitol true, correct and complete copies of the
Netivation's certificate of incorporation and bylaws, each as amended to date.
(b) Merger Sub is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware. Merger Sub has all
requisite corporate power and authority to own and operate its properties and
assets, to execute and deliver the Transactional Agreements, to carry out the
provisions of the Transactional Agreements and to carry on its business as
presently conducted and as presently proposed to be conducted.
3.2 Subsidiaries. Except for Merger Sub, InterLink Internet
Services, Inc., The Online Medical Bookstore, Inc., Raintree Communications
Corporation, Xxxxxxxxxxxxxxxx.xxx, Inc., Public Disclosure, Inc., MEDMarket,
Inc., and Xxxxxxxxxx.xxx Merger Three Corp., all of which are wholly-owned
subsidiaries of Netivation, and an approximately five percent (5%) equity
interest in EB Online, Inc., Netivation owns no equity securities of any other
corporation, limited partnership or similar entity. Netivation is not a
participant in any joint venture, partnership or similar arrangement.
AGREEMENT AND PLAN OF MERGER - 16
3.3 Capitalization; Voting Rights.
(a) The authorized capital stock of Netivation, immediately
prior to the Closing, consists of (a) 30,000,000 shares of Common Stock, of
which 9,196,305 shares are issued and outstanding, and (b) 2,000,000 shares of
Preferred Stock, of which no shares are issued and outstanding. All issued and
outstanding shares of Netivation's Common Stock and Preferred Stock (i) have
been duly authorized and validly issued, (ii) are fully paid and nonassessable
and (iii) were issued in compliance with all applicable state and federal laws
concerning the issuance of securities. Except as set forth in Schedule 3.3 and
in the Registration Statement, there are no outstanding options, warrants,
rights (including conversion or preemptive rights and rights of first refusal),
proxy or stockholder agreements, or agreements of any kind for the purchase or
acquisition from Netivation of any of its securities. The Netivation Stock has
been duly authorized and, when issued in compliance with the provisions of this
Agreement and its certificate of incorporation, will be validly issued, fully
paid and nonassessable, with no personal liability attaching to the ownership
thereof, other than liabilities imposed upon stockholders generally by the
provisions of Delaware Law, and will not be subject to any other restrictions,
except as set forth in or provided by this Agreement and as may be imposed by
applicable law.
(b) The authorized capital stock of Merger Sub consists of one
hundred (100) shares of Common Stock, all of which have been issued to
Netivation. All of the issued and outstanding shares of Common Stock of Merger
Sub (i) have been duly authorized and validly issued, (ii) are fully paid and
nonassessable and (iii) were issued in compliance with all applicable state and
federal laws concerning the issuance of securities.
3.4 Authorization; Binding Obligations. Each of Netivation and
Merger Sub has the absolute and unrestricted right, power and authority to enter
into and to perform its obligations under the Transactional Agreements to which
Netivation and Merger Sub, as the case may be, is or may become a party. This
Agreement constitutes the legal, valid and binding obligation of each of
Netivation and Merger Sub, enforceable against them in accordance with its
terms, subject to (i) laws of general application relating to bankruptcy,
insolvency and the relief of debtors and (ii) rules of law governing specific
performance, injunctive relief and other equitable remedies. Upon the execution
of each of the other Transactional Agreements at the Closing, each of such other
Transactional Agreements will constitute the legal, valid and binding obligation
of Netivation, enforceable against Netivation in accordance with its terms,
subject to (i) laws of general application relating to bankruptcy, insolvency
and the relief of debtors and (ii) rules of law governing specific performance,
injunctive relief and other equitable remedies.
3.5 Full Disclosure. Netivation has delivered to Net.Capitol an
accurate and complete copy of its Registration Statement on Form SB-2 No. 333-
74569 filed with the Securities and Exchange Commission (the "SEC") on June 22,
AGREEMENT AND PLAN OF MERGER - 17
1999 (the "Registration Statement"), and all subsequent SEC filings. The
Registration Statement (i) complies in all material respects with the applicable
requirements of the Securities Act and (ii) does not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
SECTION 4 - CERTAIN COVENANTS OF NET.CAPITOL AND THE
REPRESENTING STOCKHOLDERS
4.1 Access and Investigation . Net.Capitol and the Representing
Stockholders shall ensure that, at all times during the Pre-Closing Period:
(a) Net.Capitol and its Representatives provide Netivation and its
Representatives with access, during normal business hours upon reasonable
notice, to Net.Capitol's Representatives, personnel and assets and to all
existing books, records, tax returns, work papers and other documents and
information relating to Net.Capitol;
(b) Net.Capitol and its Representatives provide Netivation and its
Representatives with such copies of existing books, records, tax returns, work
papers and other documents and information relating to Net.Capitol as Netivation
may request in good faith; and
(c) Net.Capitol and its Representatives compile and provide Netivation
and its Representatives with such additional financial, operating and other data
and information regarding Net.Capitol as Netivation may request in good faith.
Without limiting the generality of the foregoing, during the Pre-Closing Period,
Net.Capitol shall promptly provide Netivation with copies of:
(i) all material operating and financial reports prepared by
Net.Capitol for its senior management, including copies of the unaudited monthly
balance sheets of Net.Capitol and the related unaudited monthly statements of
operations, statements of stockholders' equity and statements of cash flows;
(ii) any written materials or communications sent by or on behalf
of Net.Capitol to its stockholders generally;
(iii) any material notice, document or other communication sent
by or on behalf of Net.Capitol to any party to any Net.Capitol contract or sent
to Net.Capitol by any party to any Net.Capitol contract (other than any
communication that relates solely to commercial transactions between Net.Capitol
and the other party to any such Net.Capitol contract and that is of the type
sent in the Ordinary Course of Business);
AGREEMENT AND PLAN OF MERGER - 18
(iv) any written notice, report or other document filed with or
sent to any Governmental Body in connection with the Merger or any of the other
Transactions; and
(v) any material written notice, report or other document
received by Net.Capitol from any Governmental Body.
4.2 Operation of Business. Net.Capitol and the Representing Stockholders
shall use its or their reasonable best efforts to ensure that, during the Pre-
Closing Period, unless prior written approval is provided by Netivation:
(a) Net.Capitol conducts its operations exclusively in the Ordinary
Course of Business and in the same manner as such operations have been conducted
prior to the date of this Agreement;
(b) Net.Capitol uses its commercially reasonable efforts to preserve
intact its current business organization, keep available the services of its
current officers and employees and maintain its relations and good will with
suppliers, customers, landlords, creditors, licensors, licensees, employees and
other Persons having business relationships with Net.Capitol;
(c) Net.Capitol keeps in full force all existing insurance policies;
(d) Net.Capitol's officers confer regularly, upon request, with
Netivation concerning operational matters and otherwise report regularly, upon
request, to Netivation concerning the status of Net.Capitol's business,
condition, assets, liabilities, operations, financial performance and prospects;
(e) Net.Capitol immediately notifies Netivation of any inquiry,
proposal or offer from any Person relating to any Acquisition Transaction;
(f) Net.Capitol not declare, accrue, set aside or pay any dividend or
make any other distribution in respect of any shares of capital stock, and does
not repurchase, redeem or otherwise reacquire any shares of capital stock or
other securities;
(g) Net.Capitol does not sell or otherwise issue any shares of
capital stock or any other securities;
(h) Net.Capitol does not amend its certificate of incorporation or
bylaws, and does not effect or become a party to any Acquisition Transaction,
recapitalization, reclassification of shares, stock split, reverse stock split
or similar transaction;
(i) Net.Capitol does not form any subsidiary or acquire any equity
interest or other interest in any other entity;
AGREEMENT AND PLAN OF MERGER - 19
(j) Net.Capitol does not make any capital expenditure, except for
capital expenditures that are made in the Ordinary Course of Business and that
do not exceed $10,000;
(k) Net.Capitol does not (i) lend money to any Person or (ii) incur,
assume or otherwise become subject to any Liability, except for current
liabilities incurred in the Ordinary Course of Business;
(l) Net.Capitol does not establish or adopt any employee benefit plan,
and does not pay or agree to pay any bonus or make any profit-sharing or similar
payment to, or increase the amount of the wages, salary, commissions, fringe
benefits or other compensation or remuneration payable to, any of its directors,
officers or employees (except for regularly scheduled salary increases in the
Ordinary Course of Business);
(m) Net.Capitol does not change any of its methods of accounting or
accounting practices in any respect;
(n) Net.Capitol does not commence any Proceeding, except in the
Ordinary Course of Business, except as set forth in Schedule 2.13;
(o) Net.Capitol does not enter into any transaction or take any
other action of the type referred to in Section 2.9;
(p) Net.Capitol does not enter into any transaction or take any other
action outside the Ordinary Course of Business;
(q) Net.Capitol does not enter into any transaction or take any other
action that is reasonably likely to cause or constitute a Breach (resulting in a
Material Adverse Effect) of any representation or warranty made by Net.Capitol
or the Representing Stockholders; and
(r) Net.Capitol does not agree, commit or offer (in writing or
otherwise), and does not attempt, to take any of the actions described in
clauses "(f)" through "(q)" of this Section 4.2.
4.3 Notification; Updates to Schedule of Exceptions; Opportunity to Cure.
(a) During the Pre-Closing Period, Net.Capitol and/or the Representing
Stockholders shall promptly notify Netivation in writing of:
(i) the discovery by Net.Capitol or any of the Representing
Stockholders of any event, condition, fact or circumstance that occurred or
existed on or prior to the date of this Agreement that caused or
AGREEMENT AND PLAN OF MERGER - 20
constitutes a Breach of any representation or warranty made by Net.Capitol or
the Representing Stockholders in this Agreement;
(ii) any event, condition, fact or circumstance that occurs,
arises or exists after the date of this Agreement and that would cause or
constitute a Breach of any representation or warranty made by Net.Capitol or the
Representing Stockholders in this Agreement if (A) such representation or
warranty had been made as of the time of the occurrence, existence or discovery
of such event, condition, fact or circumstance or (B) such event, condition,
fact or circumstance had occurred, arisen or existed on or prior to the date of
this Agreement;
(iii) any Breach of any covenant or obligation of Net.Capitol
or the Representing Stockholders; and
(iv) any event, condition, fact or circumstance that may make
the timely satisfaction of any of the conditions set forth in Section 6 or
Section 7 impossible or unlikely.
(b) If any event, condition, fact or circumstance that is required to
be disclosed pursuant to Section 4.3(a) requires any change in the Schedule of
Exceptions, or if any such event, condition, fact or circumstance would require
such a change assuming the Schedule of Exceptions were dated as of the date of
the occurrence, existence or discovery of such event, condition, fact or
circumstance, then Net.Capitol shall promptly deliver to Netivation an update to
the Schedule of Exceptions specifying such change. No such update shall be
deemed to supplement or amend the Schedule of Exceptions for the purpose of (i)
determining the accuracy of any of the representations and warranties made by
Net.Capitol in this Agreement for purposes of Section 6.1, but shall be deemed
to supplement or amend the Schedule of Exceptions for purposes of Section 9 or
(ii) determining whether any of the other conditions set forth in Section 6 have
been satisfied.
(c) Upon receipt of any notification pursuant to Section 4.3(a),
Netivation shall send written notice to Net.Capitol and/or the Representing
Stockholders of its decision to seek termination of this Agreement or pursue any
other available remedy. Netivation shall provide Net.Capitol and/or the
Representing Stockholders a reasonable opportunity to cure, but in no event less
than ten (10) days.
(d) During the Pre-Closing Period, Net.Capitol and/or the Representing
Stockholders, as appropriate, shall promptly notify Netivation in writing of the
awareness by Net.Capitol or its representatives or any of the Representing
Stockholders of any event, condition, fact or circumstance that occurred or
existed on or prior to the date of this Agreement or thereafter that caused or
constitutes or will cause or constitute a Breach of any representation or
warranty made by Netivation in this Agreement.
AGREEMENT AND PLAN OF MERGER - 21
(e) Upon receipt of any notification pursuant to Section 4.3(d),
Netivation shall send written notice to Net.Capitol and/or the Representing
Stockholders of its intent to cure the defect. Net.Capitol and the Representing
Stockholders shall provide a reasonable opportunity to cure the defect, but in
no event less than ten (10) days. Net.Capitol and the Representing Stockholders
shall not have the right to xxx for indemnity or contribution for any defect
that Net.Capitol and/or the Representing Stockholders were aware of prior to or
during the Pre-Closing Period for which no notification pursuant to Section
4.3(d) was given to Netivation.
4.4 No Negotiation. Net.Capitol shall ensure that, during the
Pre-Closing Period, neither Net.Capitol nor any of Net.Capitol's Representatives
directly or indirectly:
(a) solicits or encourages the initiation of any inquiry, proposal or
offer from any Person (other than Netivation) relating to any Acquisition
Transaction;
(b) participates in any discussions or negotiations with, or provides
any non-public information to, any Person (other than Netivation) relating to
any Acquisition Transaction; or
(c) considers the merits of any unsolicited inquiry, proposal or offer
from any Person (other than Netivation) relating to any Acquisition Transaction.
4.5 Purchaser Representative. On or before the Closing Date, a person
(the "Purchaser Representative") shall have been appointed, and agreed to act
as, "purchaser representative," as that term is defined in Rule 501 under the
Securities Act, to represent those Selling Stockholders set forth on Schedule
2.21(c) who are not "accredited investors" in connection with the Transactions.
SECTION 5 - ADDITIONAL COVENANTS OF THE PARTIES
5.1 Notification; Opportunity to Cure.
(a) During the Pre-Closing Period, Netivation shall promptly notify
Net.Capitol and/or the Representing Stockholders in writing of:
(i) the discovery by Netivation of any event, condition, fact or
circumstance that occurred or existed on or prior to the date of this Agreement
that caused or constitutes a Breach of any representation or warranty made by
Netivation in this Agreement;
(ii) any event, condition, fact or circumstance that occurs,
arises or exists after the date of this Agreement and that would cause or
AGREEMENT AND PLAN OF MERGER - 22
constitute a Breach of any representation or warranty made by Netivation in this
Agreement if (A) such representation or warranty had been made as of the time of
the occurrence, existence or discovery of such event, condition, fact or
circumstance or (B) such event, condition, fact or circumstance had occurred,
arisen or existed on or prior to the date of this Agreement;
(iii) any Breach of any covenant or obligation of Netivation; and
(iv) any event, condition, fact or circumstance that may make
the timely satisfaction of any of the conditions set forth in Section 6 or
Section 7 impossible or unlikely.
(b) Upon receipt of any notification pursuant to Section 5.1(a),
Net.Capitol and/or the Representing Stockholders shall send written notice to
Netivation of its/their decision to seek termination of this Agreement or pursue
any other available remedy. Net.Capitol and/or the Representing Stockholders
shall provide Netivation a reasonable opportunity to cure, but in no event less
than ten (10) days.
(c) During the Pre-Closing Period, Netivation shall promptly notify
Net.Capitol and/or the Representing Stockholders, as appropriate, in writing of
the awareness by Netivation or its representatives of any event, condition, fact
or circumstance that occurred or existed on or prior to the date of this
Agreement or thereafter that caused or constitutes or will cause or constitute a
Breach of any representation or warranty made by Net.Capitol and/or a
Representing Stockholder in this Agreement.
(d) Upon receipt of any notification pursuant to Section 5.1(c),
Net.Capitol and/or the Representing Stockholders shall send written notice to
Netivation of its/their intent to cure the defect. Netivation shall provide a
reasonable opportunity to cure the defect, but in no event less than ten (10)
days. Netivation shall not have the right to xxx for indemnity or contribution
for any defect that Netivation was aware of prior to or during the Pre-Closing
Period for which no notification pursuant to Section 5.1(c) was given to
Net.Capitol and/or the Representing Stockholders, as appropriate.
5.2 Filings and Consents. As promptly as practicable after the execution
of this Agreement, each party to this Agreement (i) shall make all filings (if
any) and give all notices (if any) required to be made and given by such party
in connection with the Transactions and (ii) shall use all commercially
reasonable efforts to obtain all consents (if any) required to be obtained
(pursuant to any applicable legal requirement or contract, or otherwise) by such
party in connection with the Transactions. Each of the parties shall (upon
request) promptly deliver to the other a copy of each such filing made, each
such notice given and each such consent obtained by Net.Capitol or Netivation,
as the case may be, during the Pre-Closing Period.
AGREEMENT AND PLAN OF MERGER - 23
5.3 Disclosure Document. As soon as practicable following the date
hereof, Netivation and Net.Capitol shall prepare and provide to the stockholders
of Net.Capitol a disclosure document regarding the issuance of Netivation Stock
(the "Disclosure Document"). Each party shall provide to the other such
information as may reasonably be requested in connection with the preparation of
the Disclosure Document. Each party shall promptly supplement, update and
correct any information provided by it for use in the Disclosure Document if and
to the extent that it is or shall have become incomplete, false or misleading.
In any such event, Netivation and Net.Capitol shall take all steps necessary to
cause the Disclosure Document as so supplemented, updated or corrected to be
disseminated to the stockholders of Net.Capitol as and to the extent required by
applicable United States federal securities laws.
5.4 Consents in Lieu of a Special Meeting. Net.Capitol shall, in
accordance with its certificate of incorporation and bylaws and the applicable
requirements of Delaware Law, call and hold a special meeting of its
stockholders, or solicit written consents in lieu of a special meeting from its
stockholders, as promptly as practicable for the purpose of permitting them to
consider and approve the Merger and this Agreement. Net.Capitol shall use its
reasonable best efforts (i) to solicit from each of such stockholders a proxy or
consent in lieu of a special meeting in favor of the approval of the Merger and
this Agreement and (ii) to cause each of such stockholders to execute and
deliver to Netivation a Subscription Agreement in a form acceptable to
Netivation certifying, among other items, as to whether each of such
stockholders is an "accredited investor" as such term is defined in Rule 501
under the Securities Act.
5.5 Public Announcements. During the Pre-Closing Period, (i)
neither Net.Capitol nor Netivation shall (and neither Net.Capitol nor Netivation
shall permit any of its respective Representatives to) issue any press release
or make any public statement regarding this Agreement or the Transactions,
without the other party's prior written consent, and (ii) each party will use
reasonable efforts to consult with the other party prior to issuing any press
release or making any public statement regarding the Merger; provided that
Netivation shall be free to make any announcements which are required by
applicable law, regulatory bodies, or stock exchange or stock association rules,
so long as Netivation promptly upon learning of such requirement notifies
Net.Capitol of such requirement and discusses with Net.Capitol in good faith the
exact wording of any such announcement.
5.6 Best Efforts. During the Pre-Closing Period, (i) Net.Capitol
shall use reasonable efforts to cause the conditions set forth in Section 6 to
be satisfied on a timely basis and (ii) Netivation and Merger Sub shall use
their commercially reasonable efforts to cause the conditions set forth in
Section 7 to be satisfied on a timely basis and Netivation will take all actions
necessary to cause Merger Sub to perform its obligations under this Agreement
and to consummate the Merger on the terms and conditions set forth in this
Agreement.
AGREEMENT AND PLAN OF MERGER - 24
5.7 Tax Matters. At or prior to the Closing, (a) Net.Capitol shall
execute and deliver to Xxxxxxx, Xxxxxx, Xxxxxxx, Rock & Fields, Chtd. and to
Netivation a tax representation letter, in a form reasonably acceptable to such
parties, and (b) Netivation shall execute and deliver to Long Xxxxxxxx & Xxxxxx
LLP and to Net.Capitol and the Selling Shareholders a tax representation letter,
in a form reasonably acceptable to such parties. Netivation, Net.Capitol, and
the Representing Stockholders will use all of their respective reasonable
efforts to cause the transactions contemplated hereby to qualify as a
reorganization under the provisions of Section 368(a) of the Code and will not
take any action after the Merger is effected that could reasonably be expected
to cause the Merger to lose its tax-free status. All parties hereto agree to
file this Agreement with their respective federal income tax returns for the
year in which the Merger closes and to comply with the reporting requirements of
United States Treasury Regulations Section 1.368-3, if applicable.
5.8 Committee Appointment. Upon Closing, Oron Xxxxxxx shall be
appointed a member of Netivation's Management Executive Committee.
5.9 Capital Infusion. Netivation shall provide the Surviving
Corporation with One Hundred Fifty Thousand Dollars ($150,000) to be used at the
sole discretion of the Surviving Corporation's President, to pay bonuses to any
employees of the Surviving Corporation. Such funds shall be provided one-half (
1/2) at Closing and one-half ( 1/2) on the first anniversary of Closing. All
recipients of such bonuses must be current employees of the Surviving
Corporation at the time such bonuses are paid.
SECTION 6 - CONDITIONS PRECEDENT TO OBLIGATIONS OF
NETIVATION AND MERGER SUB
The obligations of Netivation and Merger Sub to effect the
Transactions are subject to the satisfaction, at or prior to the Closing, of
each of the following conditions (any of which may be waived by Netivation, in
whole or in part, in accordance with Section 10.11):
6.1 Accuracy of Representations. Each of the representations and
warranties made by Net.Capitol and the Representing Stockholders in this
Agreement shall have been accurate in all material respects as of the date of
this Agreement and shall be accurate in all material respects as of the
Scheduled Closing Time as if made at the Scheduled Closing Time.
6.2 Performance of Covenants. Each covenant and obligation that
Net.Capitol or any of the Representing Stockholders is required to comply with
or to perform pursuant to this Agreement at or prior to the Closing shall have
been duly complied with and performed in all material respects.
AGREEMENT AND PLAN OF MERGER - 25
6.3 Stockholder Approval. The principal terms of the Merger shall
have been duly approved by the stockholders of Net.Capitol in accordance with
the provisions of Delaware Law and applicable agreements.
6.4 Consents. All consents required to be obtained by Net.Capitol
in connection with the Transactions (including the consents identified in
Section 2.18) shall have been obtained and shall be in full force and effect.
6.5 No Material Adverse Change. Except for adverse changes that
result from general economic conditions, there shall have been no material
adverse change in Net.Capitol's business, condition, assets, liabilities,
operations, financial performance or prospects since the date of this Agreement.
6.6 Agreements and Documents. Netivation shall have received the
following agreements and documents, each of which shall be in full force and
effect:
(a) the Escrow Agreement, substantially in the form of Exhibit G;
(b) Employment and Noncompetition Agreements, substantially in
the forms of Exhibits F1, F2 and F3, executed by each of Xxxx Xxxxx, Xxxx Xxxxxx
and Oron Xxxxxxx;
(c) a Tax Representation Letter executed by Net.Capitol;
(d) written resignations of all officers and directors from their
position as officer or director of Net.Capitol, effective as of the Closing
Date;
(e) a certificate executed by each of the Representing
Stockholders containing the representation and warranty of each such
Representing Stockholder that (i) each of the representations and warranties
made by Net.Capitol and the Representing Stockholders in this Agreement is
accurate in all material respects as of the Closing Date as if made on the
Closing Date and (ii) the conditions set forth in this Section 6 have been duly
satisfied (the Representing Stockholders' Closing Certificate");
(f) a Subscription Agreement, substantially in the form of
Exhibit E, completed and executed by each Selling Stockholder;
(g) a Release of Claims, substantially in the form of Exhibit H
executed by Xxxx Xxxx and Xxxxxxx Xxxx; and
(h) such other documents as Netivation may reasonably request
in good faith for the purpose of (i) evidencing the accuracy of any
representation or warranty made by Net.Capitol or the Representing Stockholders,
(ii) evidencing the compliance by Net.Capitol or the Representing Stockholders
AGREEMENT AND PLAN OF MERGER - 26
with, or the performance by Net.Capitol or the Representing Stockholders of, any
covenant or obligation set forth in this Agreement, (iii) evidencing the
compliance with any applicable federal or state securities law, (iv) evidencing
the satisfaction of any condition set forth in this Section 6 or (v) otherwise
facilitating the consummation or performance of any of the Transactions.
6.7 Fairness Hearing. Netivation shall have received a favorable
outcome to a fairness hearing conducted pursuant to Section 3(a)(10) of the
Securities Act, in reliance upon which Netivation intends to issue the
Netivation Stock, or shall have taken all action necessary to qualify for
another exemption from registration under applicable federal and state
securities laws.
6.8 Lock-Up Agreements. Each of the Selling Stockholders identified
in Schedule 6.8A shall have delivered to Netivation a lock-up agreement,
substantially in the form of Exhibit I1. Each of the Selling Stockholders
identified in Schedule 6.8B shall have delivered to Netivation a lock-up
agreement, substantially in the form of Exhibit I2.
6.9 No Restraints. No temporary restraining order, preliminary or
permanent injunction or other order preventing the consummation of the Merger
shall have been issued by any court of competent jurisdiction and remain in
effect, and there shall not be any legal requirement enacted or deemed
applicable to the Merger that makes consummation of the Merger illegal.
6.10 No Proceedings. No Person, except as provided in Schedule 2.13,
shall have commenced or threatened to commence any Proceeding challenging or
seeking the recovery of a material amount of damages in connection with the
Merger or seeking to prohibit or limit the exercise by Netivation of any
material right pertaining to its ownership of stock of the Surviving
Corporation.
6.11 Securities Law Compliance. All applicable requirements of the
federal and state securities laws shall have been satisfied.
6.12 Dissenters Rights. No more than one percent (1%) of the
outstanding shares of capital stock of Net.Capitol shall have exercised
dissenters rights with respect to approval of the Transactions.
6.13 Unaccredited Investors. The Subscription Agreements delivered
pursuant to Sections 5.4 and 6.6 shall indicate that no more than 35 of the
stockholders of Net.Capitol are "unaccredited investors," as defined by Rule 501
under the Securities Act.
6.14 Proceedings and Documents. All corporate and other proceedings
in connection with the Transactions and all documents and instruments incident
to such Transactions shall be reasonably satisfactory in substance and form to
Netivation.
AGREEMENT AND PLAN OF MERGER - 27
6.15 Corporate Approvals. This Agreement and the consummation of
the Transactions shall have been approved by all necessary corporate action on
the part of Net.Capitol, Netivation, Merger Sub and the Representing
Stockholders.
6.16 Board Approval. The Board of Directors of Netivation shall
have duly authorized and approved this Agreement and the consummation of the
Transactions.
SECTION 7 - CONDITIONS PRECEDENT TO OBLIGATIONS OF
NET.CAPITOL AND THE REPRESENTING STOCKHOLDERS
The obligations of Net.Capitol and the Representing Stockholders to
effect the Transactions are subject to the satisfaction, at or prior to the
Closing, of each of the following conditions (any of which may be waived solely
by Net.Capitol, in whole or in part, in accordance with Section 10.11):
7.1 Accuracy of Representations. Each of the representations and
warranties made by Netivation in this Agreement shall have been accurate in all
material respects as of the date of this Agreement and shall be accurate in all
material respects as of the Scheduled Closing Time as if made at the Scheduled
Closing Time.
7.2 Performance of Covenants. Each covenant and obligation that
Netivation and Merger Sub are required to comply with or to perform pursuant to
this Agreement at or prior to the Closing shall have been duly complied with and
performed in all material respects.
7.3 Consents. All consents required to be obtained by Netivation
in connection with the Transactions shall have been obtained and shall be in
full force and effect.
7.4 Agreements and Documents. Net.Capitol shall have received the
following agreements and documents, each of which shall be in full force and
effect:
(a) the Escrow Agreement, substantially in the form of Exhibit G;
(b) Employment and Noncompetition Agreements, substantially in
the forms of Exhibits F1, F2 and F3, executed by each of Xxxx Xxxxx, Xxxx Xxxxxx
and Oron Xxxxxxx;
(c) a Tax Representation Letter executed by Netivation;
(d) a certificate executed by Netivation containing the
representation and warranty of Netivation that (i) each of the representations
and
AGREEMENT AND PLAN OF MERGER - 28
warranties made by Netivation in this Agreement is accurate in all material
respects as of the Closing Date as if made on the Closing Date and (ii) the
conditions set forth in this Section 7 have been duly satisfied; and
(e) such other documents as Net.Capitol may reasonably request
in good faith for the purpose of (i) evidencing the accuracy of any
representation or warranty made by Netivation, (ii) evidencing the compliance by
Netivation with, or the performance by Netivation of, any covenant or obligation
set forth in this Agreement, (iii) evidencing the compliance with any applicable
federal and state securities law, (iv) evidencing the satisfaction of any
condition set forth in this Section 7 or (v) otherwise facilitating the
consummation or performance of any of the Transactions.
7.5 No Restraints. No temporary restraining order, preliminary
or permanent injunction or other order preventing the consummation of the Merger
shall have been issued by any court of competent jurisdiction and remain in
effect, and there shall not be any legal requirement enacted or deemed
applicable to the Merger that makes consummation of the Merger illegal.
7.6 No Proceedings. No Person shall have commenced or threatened
to commence any Proceeding challenging or seeking the recovery of a material
amount of damages in connection with the Merger or seeking to prohibit or limit
the exercise by Netivation of any material right pertaining to its ownership of
stock of the Surviving Corporation.
7.7 Corporate Approvals. This Agreement and the consummation of the
Transactions shall have been approved by all necessary corporate action on the
part of the Net.Capitol, Netivation, Merger Sub and the Representing
Stockholders.
7.8 Fairness Hearing. Netivation shall have received a favorable
outcome to a fairness hearing conducted pursuant to Section 3(a)(10) of the
Securities Act, in reliance upon which Netivation intends to issue the
Netivation Stock, or shall have taken all action necessary to qualify for
another exemption from registration under applicable federal and state
securities laws.
SECTION 8 - TERMINATION
8.1 Termination Events. This Agreement may be terminated prior to
the Closing:
(a) by Netivation if (i) there is a material Breach of any
covenant or obligation of Net.Capitol or any of the Representing Stockholders or
(ii) Netivation reasonably determines that the timely satisfaction of any
condition set forth in Section 6 has become impossible (other than as a result
of any failure on the part of Netivation or Merger Sub to comply with or perform
any covenant or obligation of Netivation or Merger Sub set forth in this
Agreement);
AGREEMENT AND PLAN OF MERGER - 29
(b) by the Agent (as defined in Section 10.1) or Net.Capitol if (i)
there is a material Breach of any covenant or obligation of Netivation or (ii)
the Agent reasonably determines that the timely satisfaction of any condition
set forth in Section 7 has become impossible (other than as a result of any
failure on the part of Net.Capitol or any of the Representing Stockholders to
comply with or perform any covenant or obligation of Net.Capitol or the
Representing Stockholders set forth in this Agreement);
(c) by Netivation at or after the Scheduled Closing Time if any
condition set forth in Section 6 has not been satisfied by the Scheduled Closing
Time;
(d) by the Agent or Net.Capitol at or after the Scheduled Closing Time
if any condition set forth in Section 7 has not been satisfied by the Scheduled
Closing Time;
(e) by Netivation if the Closing has not taken place on or before
December 31, 1999 (other than as a result of any failure on the part of
Netivation or Merger Sub to comply with or perform any covenant or obligation of
Netivation or Merger Sub set forth in this Agreement);
(f) by the Agent or Net.Capitol if the Closing has not taken place on
or before December 31, 1999 (other than as a result of the failure on the part
of Net.Capitol or any of the Representing Stockholders to comply with or perform
any covenant or obligation of Net.Capitol or the Representing Stockholders set
forth in this Agreement); or
(g) by the mutual consent of Netivation, the Agent and Net.Capitol.
8.2 Termination Procedures. If Netivation wishes to terminate this
Agreement pursuant to Section 8.1(a), Section 8.1(c) or Section 8.1(e),
Netivation shall deliver to the Agent and Net.Capitol a written notice stating
that Netivation is terminating this Agreement and setting forth a brief
description of the basis on which Netivation is terminating this Agreement. If
the Agent or Net.Capitol wishes to terminate this Agreement pursuant to Section
8.1(b), Section 8.1(d) or Section 8.1(f), the Agent or Net.Capitol shall deliver
to Netivation a written notice terminating this Agreement and setting forth a
brief description of the basis on which this Agreement is terminated.
8.3 Effect of Termination. If this Agreement is terminated pursuant to
Section 8.1, all further obligations of the parties under this Agreement shall
automatically terminate; provided, however, that: (a) neither Net.Capitol nor
the Representing Stockholders nor Netivation shall be relieved of any obligation
or liability arising from any prior Breach by such party of any provision of
this Agreement; (b) the parties shall, in all events, remain bound by and
continue to be
AGREEMENT AND PLAN OF MERGER - 30
subject to the provisions set forth in Section 9; (c) Net.Capitol and Netivation
shall, in all events, remain bound by and continue to be subject to Section 5.5;
and (d) Netivation shall reimburse Net.Capitol up to $10,000 for legal fees
pursuant to Section 10.3 if this Agreement is terminated pursuant to Section
8.1(b), (d), (f) or (g).
SECTION 9 - INDEMNIFICATION, ETC.
9.1 Survival of Representations, Warranties and Covenants.
(a) The representations, warranties and covenants of each party
pursuant to this Agreement shall survive the Closing and shall expire on the
first anniversary of the Closing Date; provided, however, (i) that fraud claims
and claims under Section 2.14 shall survive for the statute of limitations
applicable to claims based on such matters and (ii) that if, at any time prior
to the first anniversary of the Closing Date, any Netivation Indemnitee seeking
indemnification under this Section 9 (acting in good faith) delivers to the
Agent a written notice alleging the existence of a Breach of any of the
representations and warranties made by Net.Capitol or any of the Representing
Stockholders or a Breach of any covenant contained herein (and setting forth in
reasonable detail the basis for such Netivation Indemnitee's belief that such a
Breach may exist) and asserting a claim for recovery under Section 9.2 based on
such alleged Breach, then the claim asserted in such notice shall survive the
first anniversary of the Closing Date until such time as such claim is fully and
finally resolved.
(b) The representations, warranties, covenants and obligations of
Net.Capitol and the Representing Stockholders, and the rights and remedies that
may be exercised by the Netivation Indemnitees, shall not be limited or
otherwise affected by or as a result of any information furnished to, or any
investigation made by or Knowledge of, any of the Netivation Indemnitees or
their Representatives.
(c) For purposes of this Agreement, each statement or other item of
information set forth in the Schedule of Exceptions or in any update to the
Schedule of Exceptions shall be deemed to be a representation and warranty made
in this Agreement.
AGREEMENT AND PLAN OF MERGER - 31
9.2 Indemnification by the Representing Stockholders.
(a) Subject to the provisions of this Section 9, the Representing
Stockholders, jointly and severally, shall indemnify and hold harmless each of
the Netivation Indemnitees from and against the amount of any Damages, subject
to the limitations of Section 9.4, incurred by any of the Netivation Indemnitees
directly or indirectly as a result of (i) any Breach of a representation or
warranty of Net.Capitol or any of the Representing Stockholders contained in
Section 2 hereof or in any instrument delivered pursuant to this Agreement (each
as modified by the Schedule of Exceptions delivered by Net.Capitol and the
Representing Stockholders on the date of this Agreement and not as modified by
any revisions to such Schedule of Exceptions after such date), (ii) any Breach
of any covenant or obligation contained herein, (iii) any final determination of
Net.Capitol's net tax liability for the fiscal year immediately prior to the
Closing or (iv) any Breach of any representation or warranty made in the
Representing Stockholders' Closing Certificate.
(b) The Representing Stockholders acknowledge and agree that, if
there is any Breach of any representation or warranty or other provision
relating to Net.Capitol or Net.Capitol's business, condition, assets,
Liabilities, operations, financial performance, net income or prospects (or any
aspect or portion thereof), then Netivation itself shall be deemed, by virtue of
its ownership of the capital stock of Net.Capitol, to have incurred Damages as
result of such Breach or Liability.
9.3 Contribution. Each Representing Stockholder waives and
acknowledges and agrees that such Representing Stockholder shall not have and
shall not exercise or assert (or attempt to exercise or assert), any right of
contribution, right of indemnity or other similar right or remedy against the
Surviving Corporation in connection with any indemnification obligation or any
other Liability to which such Representing Stockholder may become subject under
the Transactional Agreements or otherwise in connection with any of the
Transactions.
9.4 Ceiling; Limitation on Additional Damages. Net.Capitol and the
Representing Stockholders shall have no liability nor be subject to any claim
for Damages made by Netivation Indemnities pursuant to the provisions of
Sections 9.2(a) or 9.5 unless and until the aggregate amount of Damages exceeds
the sum of $100,000. After the aggregate amount of Damages exceeds the sum of
$100,000, Net.Capitol and the Representing Stockholders shall be liable for his
or its pro rata share of the amount of Damages exceeding the sum of $100,000.
However, in no event may the Netivation Indemnitees recover an aggregate amount
in excess of 90% of the value of the shares of Netivation Stock, received by the
Representing Stockholders at the Effective Time of the Merger, and no
Representing Stockholder will incur personal liability in excess of the dollar
value of the shares that such Representing Stockholder received at the Effective
Time of the Merger. The floor and ceiling provisions of this Section 9.4 shall
not apply to
AGREEMENT AND PLAN OF MERGER - 32
claims for willful misconduct, fraud, bad faith or recklessness on the part of
Net.Capitol or any Representing Stockholder.
9.5 Defense of Third Party Claims. In the event of the assertion
or commencement by any Person of any claim or Proceeding (whether against
Net.Capitol, against any other Netivation Indemnitee or any other Person) with
respect to which any of the Representing Stockholders may become obligated to
indemnify, hold harmless, compensate or reimburse any Netivation Indemnitee
pursuant to this Section 9, Netivation shall have the right, at its election, to
proceed with the defense of such claim or Proceeding on its own. If Netivation
so proceeds with the defense of any such claim or Proceeding:
(a) all expenses relating to the defense of such claim or
Proceeding (whether or not incurred by Netivation) shall be borne and paid
exclusively by the Representing Stockholders;
(b) the Representing Stockholders shall make available to
Netivation any documents and materials in the possession or control of any of
the Representing Stockholders that may be necessary to the defense of such claim
or Proceeding; and
(c) Netivation shall keep the Agent informed of all material
developments and events relating to such claim or Proceeding.
9.6 Indemnity Reserve. In order to secure Netivation's and each
Netivation Indemnitee's rights of indemnity, the Representing Stockholders, on a
pro rata basis, shall place 250,000 shares of Netivation Stock received by the
Representing Stockholders in this Merger in escrow in accordance with the terms
of the Escrow Agreement, substantially in the form attached hereto as Exhibit G.
9.7 Exercise of Remedies by Netivation Indemnitees Other Than
Netivation. No Netivation Indemnitee (other than Netivation or any successor
thereto or assign thereof) shall be permitted to assert any indemnification
claim or exercise any other remedy under this Agreement unless Netivation (or
any successor thereto or assign thereof) shall have consented to the assertion
of such indemnification claim or the exercise of such other remedy.
AGREEMENT AND PLAN OF MERGER - 33
SECTION 10 - MISCELLANEOUS PROVISIONS
10.1 Representing Stockholders' Agent.
(a) The Representing Stockholders hereby irrevocably nominate,
constitute and appoint Oron Xxxxxxx as the agent and true and lawful attorney-
in-fact of the Representing Stockholders (the "Agent"), with full power of
substitution, to act in the name, place and stead of the Representing
Stockholders for purposes of executing any documents and taking any actions that
the Agent may, in his sole discretion, determine to be necessary, desirable or
appropriate in connection with any of the Transactional Agreements or any of the
Transactions on behalf of the Representing Stockholders. Oron Xxxxxxx hereby
accepts his appointment as Agent.
(b) The Representing Stockholders hereby grant to the Agent full
authority to execute, deliver, acknowledge, certify and file on behalf of the
Representing Stockholders (in the name of any or all of the Representing
Stockholders or otherwise) any and all documents that the Agent may, in his sole
discretion, determine to be necessary, desirable or appropriate, in such forms
and containing such provisions as the Agent may, in his sole discretion,
determine to be appropriate (including the Representing Stockholders' Closing
Certificate and any amendment to or waiver of rights under any of the
Transactional Agreements). Notwithstanding anything to the contrary contained
in the Transactional Agreements:
(i) Netivation shall be entitled to deal exclusively with the
Agent, acting on behalf of the Representing Stockholders, on all matters
relating to the Transactional Agreements and the respective Transactions
(including all matters relating to any notice to, or any consent to be given or
action to be taken by, any Representing Stockholder, including any matters set
forth in Section 9); and
(ii) each Netivation Indemnitee shall be entitled to rely
conclusively (without further evidence of any kind whatsoever) on any document
executed or purported to be executed on behalf of any Representing Stockholder
by the Agent, and on any other action taken or purported to be taken on behalf
of any Representing Stockholder by the Agent, as fully binding upon such
Representing Stockholder.
(c) The Representing Stockholders recognize and intend that the power
of attorney granted herein (i) is coupled with an interest and is irrevocable,
(ii) may be delegated by the Agent and (iii) shall survive the death or
incapacity of each of the Representing Stockholders.
(d) The Agent shall be entitled to treat as genuine, and as the
document it purports to be, any letter, facsimile, telex or other document that
is believed by him to be genuine and to have been telexed, telegraphed, faxed or
AGREEMENT AND PLAN OF MERGER - 34
cabled by any Representing Stockholder or to have been signed and presented by
an Representing Stockholder.
(e) If the Agent shall die, become disabled or otherwise be
unable to fulfill his responsibilities hereunder, then the Representing
Stockholders shall, within ten (10) days after such death or disability, appoint
a successor agent and, immediately thereafter, shall notify Netivation of the
identity of such successor. Any such successor shall succeed the Agent as Agent
hereunder. If for any reason there is no Agent at any time, all references
herein to the Agent shall be deemed to refer to the Representing Stockholders.
(f) All expenses incurred by the Agent in connection with the
performance of his duties as Agent shall be borne and paid by the Representing
Stockholders.
10.2 Further Assurances. Each party hereto shall execute and cause
to be delivered to each other party hereto such instruments and other documents,
and shall take such other actions, as such other party may reasonably request
(prior to, at or after the Closing) for the purpose of carrying out or
evidencing any of the Transactions.
10.3 Fees and Expenses. Subject to Section 9, and except as provided
in Section 8.3, Netivation and Net.Capitol shall bear and pay all fees, costs
and expenses (including legal fees and accounting fees) that have been incurred
or that are incurred in the future by such party in connection with the
Transactions, including all fees, costs and expenses incurred by such party in
connection with or by virtue of (i) the investigation and review conducted by
Netivation and its Representatives with respect to Net.Capitol's business (and
the furnishing of information to Netivation and its Representatives in
connection with such investigation and review), (ii) the negotiation,
preparation and review of this Agreement (including the Schedule of Exceptions)
and all agreements, certificates, opinions and other instruments and documents
delivered or to be delivered in connection with the Transactions, (iii) the
preparation and submission of any filing or notice required to be made or given
in connection with any of the Transactions and the obtaining of any consent
required to be obtained in connection with any of such Transactions and (iv) the
consummation of the Merger; provided that if the Merger is successfully
completed or terminated pursuant to Section 8.1(b), (d), (f) or (g), Netivation
shall reimburse Net.Capitol at Closing (or upon such termination as the case may
be) up to $10,000 for legal fees Net.Capitol incurs in connection with the
Transactions.
10.4 Attorneys' Fees. If any action or Proceeding relating to this
Agreement or the enforcement of any provision of this Agreement is brought
against any party hereto, the prevailing party shall be entitled to recover
reasonable attorneys' fees, costs and disbursements (in addition to any other
relief to which the prevailing party may be entitled).
AGREEMENT AND PLAN OF MERGER - 35
10.5 Notices. Any notice or other communication required or
permitted to be delivered to any party under this Agreement shall be in writing
and shall be deemed properly delivered, given and received when delivered (by
hand, by registered mail, by courier or overnight delivery service or by
facsimile) to the address or facsimile telephone number set forth beneath the
name of such party below (or to such other address or facsimile telephone number
as such party shall have specified in a written notice given to the other
parties hereto):
if to Netivation: Xxxxxxxxxx.xxx, Inc.
000 Xxxxxxxxxx Xxxx, Xxxxx X
Xxxx Xxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, President and
Chief Executive Officer
Facsimile: (000) 000-0000
with a copy to: Xxxxxxx Xxxxxx Xxxxxxx Rock & Fields, Chtd.
000 X. Xxxxxxx Xxxx., 00xx Xxxxx
Xxxxx, XX 00000
Attention: Xxxx X. Xxxxxxx
Facsimile: (000) 000-0000
if to Net.Capitol, Net.Capitol, Inc.
the Agent or any 000 X Xxxxxx, X.X.
of the Xxxxxxxxxx, X.X. 00000
Representing Attention: Oron Xxxxxxx
Stockholders: Facsimile: (000) 000-0000
with a copy to: Long Xxxxxxxx & Xxxxxx LLP
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxxxxx
Facsimile: (000) 000-0000
Any of the above addresses may be changed at any time by notice
given as provided above; provided, however, that any such notice of change of
address shall be effective only upon receipt. All notices, requests or
instructions given in accordance herewith shall be deemed received on the date
of delivery, if hand delivered, telecopied or by overnight courier, and three
(3) business days after the date of mailing, if mailed by certified mail, return
receipt requested.
10.6 Headings. The boldface headings contained in this
Agreement are for convenience of reference only, shall not be deemed to be a
part of this Agreement and shall not be referred to in connection with the
construction or interpretation of this Agreement.
AGREEMENT AND PLAN OF MERGER - 36
10.7 Counterparts. This Agreement may be executed in several
counterparts, each of which shall constitute an original and all of which, when
taken together, shall constitute one agreement.
10.8 Governing Law. This Agreement shall be construed in
accordance with, and governed in all respects by, the internal laws of the State
of Idaho (without giving effect to principles of conflicts of laws).
10.9 Successors and Assigns. This Agreement shall be binding upon:
Net.Capitol and its successors and assigns (if any); the Representing
Stockholders and their respective personal representatives, executors,
administrators, estates, heirs, successors and assigns (if any); Netivation and
its successors and assigns (if any); and Merger Sub and its successors and
assigns (if any). This Agreement shall inure to the benefit of: Net.Capitol;
the Representing Stockholders; Netivation; Merger Sub; the Netivation
Indemnitees; and the respective successors and assigns (if any) of the
foregoing. Each party may freely assign any or all of its rights (but not its
obligations) under this Agreement (including its indemnification rights under
Section 9), in whole or in part, to any other Person without obtaining the
consent or approval of any other party hereto or of any other Person.
10.10 Remedies Cumulative; Specific Performance. The rights and
remedies of the parties hereto shall be cumulative (and not alternative). The
parties to this Agreement agree that, in the event of any Breach or threatened
Breach by any party to this Agreement of any covenant, obligation or other
provision set forth in this Agreement for the benefit of any other party to this
Agreement, such other party shall be entitled (in addition to any other remedy
that may be available to it) to (i) a decree or order of specific performance or
mandamus to enforce the observance and performance of such covenant, obligation
or other provision, and (ii) an injunction restraining such Breach or threatened
Breach.
10.11 Waiver.
(a) No failure on the part of any Person to exercise any
power, right, privilege or remedy under this Agreement, and no delay on the part
of any Person in exercising any power, right, privilege or remedy under this
Agreement, shall operate as a waiver of such power, right, privilege or remedy;
and no single or partial exercise of any such power, right, privilege or remedy
shall preclude any other or further exercise thereof or of any other power,
right, privilege or remedy.
(b) No Person shall be deemed to have waived any claim arising
out of this Agreement, or any power, right, privilege or remedy under this
Agreement, unless the waiver of such claim, power, right, privilege or remedy is
expressly set forth in a written instrument duly executed and delivered on
behalf of such Person; and any such waiver shall not be applicable or have any
effect except in the specific instance in which it is given.
AGREEMENT AND PLAN OF MERGER - 37
10.12 Amendments. This Agreement may not be amended, modified,
altered or supplemented other than by means of a written instrument duly
executed and delivered on behalf of all of the parties hereto.
10.13 Time of the Essence. Time is of the essence of this Agreement.
10.14 Severability. In the event that any provision of this
Agreement, or the application of any such provision to any Person or set of
circumstances, shall be determined to be invalid, unlawful, void or
unenforceable to any extent, the remainder of this Agreement, and the
application of such provision to Persons or circumstances other than those as to
which it is determined to be invalid, unlawful, void or unenforceable, shall not
be impaired or otherwise affected and shall continue to be valid and enforceable
to the fullest extent permitted by law.
10.15 Parties in Interest. Except for the provisions of Section 9,
none of the provisions of this Agreement is intended to provide any rights or
remedies to any Person other than the parties hereto and their respective
successors and assigns (if any).
10.16 Entire Agreement. This Agreement and the Schedules and other
agreements referred to herein set forth the entire understanding of the parties
hereto relating to the subject matter hereof and thereof and supersede all prior
agreements and understandings among or between any of the parties relating to
the subject matter hereof and thereof.
10.17 Construction.
(a) For purposes of this Agreement, whenever the context
requires: the singular number shall include the plural, and vice versa; the
masculine gender shall include the feminine and neuter genders; the feminine
gender shall include the masculine and neuter genders; and the neuter gender
shall include the masculine and feminine genders.
(b) The parties hereto agree that any rule of construction to
the effect that ambiguities are to be resolved against the drafting party shall
not be applied in the construction or interpretation of this Agreement.
(c) As used in this Agreement, the words "include" and
"including," and variations thereof, shall not be deemed to be terms of
limitation, but rather shall be deemed to be followed by the words "without
limitation."
(d) Except as otherwise indicated, all references in this
Agreement to "Sections" and "Exhibits" are intended to refer to Sections of this
Agreement and Exhibits to this Agreement.
AGREEMENT AND PLAN OF MERGER - 38
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AGREEMENT AND PLAN OF MERGER - 39
The parties hereto have caused this Agreement to be executed and
delivered as of the date first set forth above.
NETIVATION:
XXXXXXXXXX.XXX, INC.,
a Delaware corporation
By /s/ Xxxxxxx X. Xxxxxx
---------------------
Xxxxxxx X. Xxxxxx
President and Chief Executive Officer
MERGER SUB:
XXXXXXXXXX.XXX MERGER CORP.,
a Delaware corporation
By /s/ Xxxxxxx X. Xxxxxx
---------------------
Xxxxxxx X. Xxxxxx
President and Chief Executive Officer
NET.CAPITOL:
NET.CAPITOL, INC.,
a Delaware corporation
By /s/ Oron Xxxxxxx
----------------
Oron Xxxxxxx
President
AGREEMENT AND PLAN OF MERGER - 40
REPRESENTING
STOCKHOLDERS:
/s/ Xxxxxxx Xxxxx /s/ Xxxx Xxxx
----------------- -------------
Xxxxxxx Xxxxx Xxxx Xxxx
/s/ Xxxx Xxxxxxx /s/ Oron Xxxxxxx
---------------- ----------------
Xxxx Xxxxxxx Oron Xxxxxxx
/s/ Xxxx Xxxxxx /s/ Xxxxxx Xxxxxxxx
--------------- -------------------
Xxxx Xxxxxx Xxxxxx Xxxxxxxx
/s/ Xxxxx Xxxxxxxxx /s/ Xxxxxxx Xxxxxxx
------------------- -------------------
Xxxxx Xxxxxxxxx Xxxxxxx Xxxxxxx
/s/ Xxxxxxxxx Xxxxxxx /s/ Xxxxxx Xxxx
--------------------- ---------------
Xxxxxxxxx Xxxxxxx Xxxxxx Xxxx
/s/ Xxxxx Xxxxxxx /s/ Xxxxx Xxxx
----------------- --------------
Xxxxx Xxxxxxx Xxxxx Xxxx
/s/ Xxxxx Xxxxxx /s/ Xxxxxxx Xxxxxxxxxxx
---------------- -----------------------
Xxxxx Xxxxxx Xxxxxxx Xxxxxxxxxxx
/s/ Xxx XxXxxxxxx /s/ Xxxxxx Xxxxxxxxx
----------------- --------------------
Xxx XxXxxxxxx Xxxxxx Xxxxxxxxx
/s/ Xxxx Xxxxxx /s/ Xxxxxxxx Xxxxx
--------------- ------------------
Xxxx Xxxxxx Xxxxxxxx Xxxxx
/s/ Xxxxx Xxxxxx /s/ Xxxxxx Xxxxx
---------------- ----------------
Xxxxx Xxxxxx Xxxxxx Xxxxx
/s/ Xxxxxxx Xxxxxx /s/ Xxxxxxx Xxxxxx
------------------ ------------------
Xxxxxxx Xxxxxx Xxxxxxx Xxxxxx
AGREEMENT AND PLAN OF MERGER - 41
AGENT:
By /s/ ORON XXXXXXX
-------------------
ORON XXXXXXX
SECRETARY'S CERTIFICATE
I, Xxxx X. Xxxxxx, Secretary of Xxxxxxxxxx.xxx Merger Corp., hereby
certify that this Agreement has been adopted pursuant to the first sentence of
Title 8, Section 251(f) of the Delaware Corporations Laws, and that the
conditions specified in that sentence have been satisfied.
/s/ Xxxx X. Xxxxxx
--------------------------------
Xxxx X. Xxxxxx, Secretary
AGREEMENT AND PLAN OF MERGER - 42
