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EXHIBIT 2.2
VOTING AND INDEMNITY AGREEMENT
BY AND AMONG
CONSUMER FINANCIAL NETWORK, INC.,
CFN MERGER CORP., INC.,
AND
THE ICC STOCKHOLDERS
SET FORTH ON THE SIGNATURE PAGES HERETO
DATED AS OF APRIL 17, 2000
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EXECUTION COPY
VOTING AND INDEMNITY AGREEMENT
THIS VOTING AND INDEMNITY AGREEMENT is entered into as of this 17th day
of April, 2000, by and among CONSUMER FINANCIAL NETWORK, INC., a Delaware
corporation ("Parent"), CFN MERGER CORP., INC., a Delaware corporation, or its
successors or assigns ("Sub"), and the stockholders of INTERACTIVE CORPORATE
COMMUNICATIONS, INC. set forth on the signature pages hereto (collectively, the
"ICC Stockholders").
RECITALS:
A. Interactive Corporate Communications, Inc., a New York
corporation ("ICC"), Parent and Sub have entered into an Agreement and Plan of
Merger dated as of April 17, 2000 (the "Merger Agreement"), providing for,
among other things, ICC to merge with and into Sub (the "Merger").
B. Of the issued and outstanding capital stock of ICC (the "ICC
Stock"), a majority is owned by the ICC Stockholders.
C. The respective Boards of Directors of Parent, Sub and ICC, and
the stockholder of Sub, have approved the Merger, upon the terms and subject to
the conditions set forth in the Merger Agreement and herein.
D. The Board of Directors of ICC has determined to recommend that
the stockholders of ICC adopt and approve the Merger Agreement and approve the
Merger.
E. It is a condition and inducement to Parent's and Sub's
willingness to enter into the Merger Agreement that the ICC Stockholders enter
into this Agreement; and it is a condition to ICC's, Parent's and Sub's
obligations to complete the Merger (the "Closing"), that the stockholders of ICC
adopt and approve the Merger Agreement and approve the Merger.
NOW, THEREFORE, in consideration of the mutual covenants,
representations, conditions and agreements set forth herein and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, it is hereby agreed as follows:
ARTICLE I
REPRESENTATIONS AND WARRANTIES OF THE ICC STOCKHOLDERS
Each of the ICC Stockholders represents and warrants, but only with
respect to such ICC Stockholder, to Parent and Sub as follows, which
representations and warranties shall survive the Closing in accordance with
Section 6.1.
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1.1 AUTHORITY. This Agreement has been duly executed and delivered
by each ICC Stockholder, and assuming the due authorization, execution and
delivery by Parent and Sub, constitutes the valid and binding obligation of each
ICC Stockholder, enforceable against each ICC Stockholder in accordance with its
terms, subject, in each case, to bankruptcy, insolvency, reorganization,
moratorium and similar laws of general application relating to or affecting
creditors' rights and to general principles of equity, including principles of
commercial reasonableness, good faith and fair dealing.
1.2 NO CONFLICTS, REQUIRED FILINGS AND CONSENTS. Except as set
forth on Schedule 1.2, none of (i) the execution and delivery hereof by the ICC
Stockholders, (ii) the consummation by the ICC Stockholders of the transactions
contemplated hereby or by the Merger Agreement (including the Merger) or (iii)
compliance by the ICC Stockholders with any of the provisions hereof will:
(a) as to any ICC Stockholder that is a corporation,
partnership, limited liability company, joint venture, association or other
entity (any of the foregoing, an "Entity"), conflict with or violate its
governing documents; or
(b) as to any ICC Stockholder, result in a violation or
breach of, or constitute a default (or an event that, with notice or lapse of
time or both, would become a default) under, or give to any other any right of
termination, amendment, acceleration or cancellation of, or result in the
creation of a lien or encumbrance on any ICC Stock or other ICC securities
pursuant to, any note, bond, mortgage or indenture, or any material contract,
agreement, arrangement, lease, license, permit, judgment, decree, franchise or
other instrument or obligation, to which he is a party or by which he or any of
his properties or assets may be bound or affected.
1.3 ACCREDITED INVESTORS; INVESTMENT PURPOSE. Each ICC Stockholder
receiving Parent Stock (as defined in the Merger Agreement) under the Merger
Agreement represents and warrants that he (a) is an "accredited investor" as
such term is defined in Rule 501 of Regulation D promulgated by the Securities
and Exchange Commission under the Securities Act of 1933, as amended (the
"Securities Act"); (b) is acquiring the Parent Stock solely for his own account
for investment and not with a view to, or for sale in connection with, any
distribution thereof; and (c) will not, directly or indirectly, offer, transfer,
sell, pledge, hypothecate or otherwise dispose of (any of the foregoing, a
"Transfer") any Parent Stock (or solicit any offer to buy, purchase or otherwise
acquire or take a pledge of any such shares) except in compliance with the
Securities Act and the rules and regulations thereunder, other applicable laws,
rules and regulations, and the Amended and Restated Stockholders' Agreement of
Parent, dated as of June 8, 1999 (the "Stockholders' Agreement").
1.4 RESTRICTIONS ON TRANSFER. Each ICC Stockholder receiving
Parent Stock under the Merger Agreement acknowledges that (a) the Parent Stock
received by him hereunder has not been registered under the Securities Act; (b)
the Parent Stock may be required to be held indefinitely, and he must continue
to bear the economic risk of the investment in such shares unless such shares
are subsequently registered under the Securities Act or an exemption from such
registration is available; (c) there may not be any public market for the Parent
Stock in the foreseeable future; (d) Rule 144 promulgated under the Securities
Act ("Rule 144") is not at
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present available with respect to sales of any securities of Parent, and such
Rule is not anticipated to be available in the foreseeable future; (e) when and
if Parent Stock may be disposed of without registration in reliance upon Rule
144, such disposition can be made only in limited amounts and in accordance with
the terms and conditions of such Rule; (f) if the exemption afforded by Rule 144
is not available, then public sale without registration will require the
availability of an exemption under the Securities Act; (g) the Parent Stock is
subject to the terms and conditions of the Stockholders' Agreement; (h)
restrictive legends shall be placed on the certificates representing Parent
Stock; and (i) a notation shall be made in the appropriate records of Parent
indicating that Parent Stock is subject to restrictions on transfer and, if
Parent should in the future engage the services of a stock transfer agent, then
appropriate stop-transfer instructions will be issued to such transfer agent
with respect to Parent Stock.
1.5 ABILITY TO BEAR RISK; ACCESS TO INFORMATION; SOPHISTICATION.
Each ICC Stockholder receiving Parent Stock under the Merger Agreement
represents and warrants that (a) his financial situation is such that he can
afford to bear the economic risk of holding Parent Stock acquired by him
hereunder for an indefinite period; (b) he can afford to suffer the complete
loss of such Parent Stock; (c) he has been granted the opportunity to ask
questions of, and receive answers from, representatives of Parent concerning the
terms and conditions of the Parent Stock and to obtain any additional
information that he deems necessary; (d) his knowledge and experience in
financial and business matters is such that he is capable of evaluating the
merits and risk of ownership of the Parent Stock; and (e) he has carefully
reviewed the terms of the Stockholders' Agreement and has evaluated the
restrictions and obligations contained therein.
1.6 NO PROXY. No ICC Stockholder has appointed or granted any
proxy, which appointment or grant remains effective, with respect to any ICC
Stock other than pursuant hereto.
1.7 DOCUMENTS RECEIVED. Each ICC Stockholder acknowledges receipt
of copies of the Merger Agreement, including all schedules and exhibits thereto,
and of the Memorandum.
1.8 REPRESENTATIONS AND WARRANTIES OF ICC UNDER MERGER AGREEMENT.
All of the representations and warranties made by ICC pursuant to Article IV of
the Merger Agreement are true as of the date hereof and (except for such
representations and warranties made as of a specified date, which need only be
true as of such date) shall be true at and as of the Closing as if made at and
as of such time.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF PARENT AND SUB
Each of Parent and Sub jointly and severally represents and warrants to
the ICC Stockholders as follows, which representations and warranties shall
survive the Closing in accordance with Section 6.1: Each of Parent and Sub has
the necessary corporate power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby. The execution
and delivery hereof and the consummation of the transactions contemplated hereby
by each of Parent and Sub have been duly and validly
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authorized and approved by their respective board of directors and by Parent, in
its capacity as Sub's sole stockholder, and no other corporate or stockholder
proceedings on the part of either Parent or Sub, or their respective board of
directors or stockholders, are necessary to authorize or approve this Agreement
or to consummate the transactions contemplated hereby. This Agreement has been
duly executed and delivered by each of Parent and Sub, and assuming the due
authorization, execution and delivery hereof by the ICC Stockholders,
constitutes the valid and binding obligation of each of Parent and Sub,
enforceable against each of Parent and Sub in accordance with its terms,
subject, in each case, to bankruptcy, insolvency, reorganization, moratorium and
similar laws of general application relating to or affecting creditors' rights
and to general principles of equity, including principles of commercial
reasonableness, good faith and fair dealing.
ARTICLE III
ADDITIONAL AGREEMENTS
3.1 PUBLIC ANNOUNCEMENTS. Each party agrees to consult with the
other party prior to any public announcement or other disclosure relating to the
Merger and shall mutually approve the timing, the content and dissemination of
any such public announcement or other disclosure, except for such public
announcement or other disclosure as may be necessary, in the written opinion of
outside counsel reasonably satisfactory to the other party, for the party
proposing to make the public announcement or other disclosure not to be in
violation of or in default under any applicable law, regulation or governmental
order (including securities laws and NASDAQ rules). If either party proposes to
make any public announcement or other disclosure based upon such an opinion,
that party shall deliver a copy of such opinion to the other party, together
with the text of the proposed public announcement or other disclosure, as far in
advance of its public announcement or other disclosure as is practicable, and
shall in good faith consult with and consider the suggestions of the other party
concerning the nature and scope of the information it proposes to announce or
disclose.
3.2 CONTRACTUAL RESTRICTIONS ON ICC STOCKHOLDERS. All ICC
Stockholders listed on Schedule 3.2 covenant and agree that they shall, in
connection with the Closing, enter into (i) subject to Section 6.7(a) of the
Merger Agreement, the Confidentiality, Non-Compete and Non-Solicitation
Agreement with Parent, in the form of Exhibit "E" to the Merger Agreement; and
(ii) the Securities Representation Letter, in the form of Exhibit "F" to the
Merger Agreement.
3.3 VOTE OF STOCKHOLDERS; VOTING PROXY.
(a) Each of the ICC Stockholders covenants and agrees (i)
to appear for the purpose of obtaining a quorum at any meeting of stockholders
of ICC, or adjournment thereof, at which matters relating to the Merger are
considered; and (b) to vote, in person or by proxy (or, if applicable, execute
written consent in accordance with applicable law with respect to), all of his
shares of ICC Stock (now owned or hereafter acquired or over which he has voting
control), at any meeting of, or in any action taken under applicable law
(including written consent) by, the
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stockholders of ICC with respect to the Merger, in favor of adopting and
approving the Merger Agreement and approving the Merger, in accordance with the
terms and provisions of the Merger Agreement.
(b) In order to effectuate Section 3.3(a), each ICC
Stockholder hereby grants to the Secretary of Parent, or his designee, an
irrevocable proxy, pursuant to the New York Business Corporation Law ("BCL") or
other applicable law, coupled with an interest, solely for the purposes of
demanding that the Secretary of ICC call a special meeting of stockholders to
consider matters related to the Merger, and of voting (or signing his name on
any written consent in accordance with applicable law with respect to) all of
the shares of ICC Stock owned (now or hereafter acquired or over which he has
voting control) by the grantor of the proxy in favor of adopting and approving
the Merger Agreement and approving the Merger, in accordance with the terms and
provisions of the Merger Agreement.
(c) Each ICC Stockholder shall perform such further acts
and execute such further instruments as required to vest in Parent and Sub the
power to carry out and give effect to the provisions hereof.
(d) Each ICC Stockholder covenants and agrees that he
shall not hereafter enter into any voting agreement, or grant any other proxy or
any power of attorney, inconsistent herewith.
(e) Each ICC Stockholder covenants and agrees that he
shall not Transfer his ICC Stock, or any other ICC securities, or any interest
therein, without Parent's prior written consent.
ARTICLE IV
INDEMNIFICATION
Effective on the date hereof, the following provisions shall apply:
4.1 INDEMNIFICATION BY PARENT.
(a) Parent shall indemnify and hold the stockholders of
ICC, including the ICC Stockholders, and their respective stockholders,
directors, officers and employees (collectively, the "ICC Indemnified Parties"),
harmless from and against, and agrees promptly to defend each of the ICC
Indemnified Parties from and reimburse each of the ICC Indemnified Parties for,
any and all losses, damages, costs, expenses, liabilities, obligations and
claims of any kind (including reasonable attorneys' fees and other legal costs
and expenses) (collectively, an "ICC Loss") that any of the ICC Indemnified
Parties may at any time suffer or incur, or become subject to, as a result of or
in connection with:
(i) any breach or inaccuracy of any of the
representations and warranties made by Parent or Sub in or pursuant hereto or in
or pursuant to the Merger Agreement, or in any instrument, certificate or
affidavit delivered by Parent or Sub at the Closing in accordance with the
provisions hereof or of the Merger Agreement;
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(ii) any failure by Parent or Sub to carry out,
perform, satisfy and discharge any of its respective covenants, agreements,
undertakings, liabilities or obligations hereunder or under any of the documents
and materials delivered by Parent pursuant hereto or to the Merger Agreement;
and
(iii) any suit, action or other proceeding arising
out of, or in any way related to, any of the matters referred to in this Section
4.1(a).
(b) Notwithstanding any other provision hereof to the
contrary, Parent shall not have any liability under Section 4.1(a)(i) (or
Section 4.1(a)(iii), to the extent arising from or based upon matters subject to
Section 4.1(a)(i)) (i) unless the aggregate of all ICC Losses for which Parent
would be liable but for this sentence exceeds, on a cumulative basis, an amount
equal to $100,000 ("Basket"), and then only to the extent of such excess, (ii)
absent fraud, for ICC Losses in excess of $10 million ("Cap") in the aggregate,
and (iii) unless the ICC Indemnified Parties have asserted a claim with respect
to the matters set forth in Section 4.1(a)(i), or 4.1(a)(iii) to the extent
applicable to Section 4.1(a)(i), within 25 months of the Effective Time (as
defined in the Merger Agreement), except with respect to the matters arising
under Section 5.14, 5.15 or 5.16 of the Merger Agreement, in which event the ICC
Indemnified Parties must have asserted a claim within the applicable statute of
limitations. Notwithstanding any implication to the contrary contained herein,
the parties acknowledge and agree that a decrease in the value of Parent Stock
would not, by itself, constitute an ICC Loss, unless and then only to the extent
a decrease in the value of Parent Stock has been demonstrated to be as a result
of any event described in Sections 4.1(a)(i), (ii) or (iii).
4.2 INDEMNIFICATION BY THE ICC STOCKHOLDERS.
(a) Subject to clause (c) below, the ICC Stockholders
shall indemnify and hold Parent, Sub, Surviving Corporation (as defined in the
Merger Agreement) and their respective stockholders, directors, officers and
employees (collectively, the "Parent Indemnified Parties") harmless from and
against, and agree to defend promptly each of the Parent Indemnified Parties
from and reimburse each of the Parent Indemnified Parties for, any and all
losses, damages, costs, expenses, liabilities, obligations and claims of any
kind (including reasonable attorneys' fees and other legal costs and expenses)
(collectively, a "Parent Loss") that any of the Parent Indemnified Parties may
at any time suffer or incur, or become subject to, as a result of or in
connection with:
(i) any breach or inaccuracy of any of the
representations and warranties made by ICC or the ICC Stockholders in or
pursuant hereto, the Merger Agreement, the Securities Representation Letter or
in any instrument certificate or affidavit delivered by any of the same at the
Closing in accordance with the provisions hereof or of the Merger Agreement;
(ii) any failure by ICC or any of the ICC
Stockholders to carry out, perform, satisfy and discharge any of their
respective covenants, agreements, undertakings, liabilities or obligations
hereunder or under any of the documents and materials delivered by any of the
same pursuant hereto, the Merger Agreement, or the Securities Representation
Letter; and
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(iii) any suit, action or other proceeding arising
out of, or in any way related to, any of the matters referred to in this Section
4.2.
(b) Notwithstanding the above, the ICC Stockholders shall
not have any liability under Section 4.2(a)(i) (or Section 4.2(a)(iii), to the
extent arising from or based upon matters subject to Section 4.2(a)(i)) (i)
unless the aggregate of all Parent Losses for which the ICC Stockholders would
be liable but for this sentence exceeds, on a cumulative basis, an amount equal
to the Basket, and then only to the extent of such excess, (ii) for Parent
Losses in excess of the Cap in the aggregate, and (iii) unless Parent has
asserted a claim with respect to the matters set forth in Sections 4.2(a)(i), or
4.2(a)(iii) to the extent applicable to Section 4.2(a)(i), within 25 months of
the Effective Time, except with respect to the matters arising under Sections
4.18, 4.19, 4.20 or 4.24 of the Merger Agreement, in which event Parent must
have asserted a claim within the applicable statute of limitations.
Notwithstanding any implication to the contrary contained herein, the parties
acknowledge and agree that a decrease in the value of ICC business acquired by
Parent pursuant to the Merger Agreement would not, by itself, constitute a
Parent Loss, unless and then only to the extent a decrease in the value of the
business of ICC acquired by Parent pursuant to the Merger Agreement has been
demonstrated to be as a result of any event described in Sections 4.2(a)(i),
(ii) or (iii).
(c) Notwithstanding anything to the contrary in this
Agreement, (i) absent fraud, the amount of Parent Losses for which any ICC
Stockholder shall be responsible under Section 4.2(a) of this Agreement shall
not exceed the product of (x) the total number of shares of ICC Stock held of
record by such ICC Stockholder immediately prior to the Effective Time divided
by the total number of shares of ICC Stock held by ICC Stockholders as a whole
outstanding immediately prior to the Effective Time and (y) the amount of Parent
Losses payable under Section 4.2(a) and subject to Section 4.2(b) of this
Agreement; (ii) any ICC Stockholder that is responsible for any amount of Parent
Losses as provided in the preceding clause (i) may, at such ICC Stockholder's
option, pay all or any portion of such amount in shares of Parent Stock (at the
option of the ICC Stockholder at $4 per share or fair market value ("Fair Market
Value")) (such Fair Market Value to be determined at the time of such claim by a
mutually acceptable, nationally-recognized investment banking firm (a "Firm")),
or in cash; and (iii) the costs and expenses of any Firm retained to determine
the Fair Market Value shall be borne 100% by the ICC Stockholders.
4.3 NOTIFICATION OF CLAIMS; ELECTION TO DEFEND
(a) A party entitled to be indemnified pursuant to
Section 4.1 or 4.2, as the case may be (the "Indemnified Party"), shall notify
the party liable for such indemnification (the "Indemnifying Party") in writing
of any claim or demand (a "Claim") that the Indemnified Party has determined has
given or could give rise to a right of indemnification hereunder. Subject to the
Indemnifying Party's right to defend in good faith third party claims as
hereinafter provided, the Indemnifying Party shall satisfy its obligations under
this Article IV within 30 days after the receipt of written notice thereof from
the Indemnified Party.
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(b) If the Indemnified Party shall notify the
Indemnifying Party of any Claim pursuant to Section 4.3(a), and if such Claim
relates to a Claim asserted by a third party against the Indemnified Party that
the Indemnifying Party acknowledges is a Claim for which it must indemnify or
hold harmless the Indemnified Party under Section 4.1 or 4.2, as the case may
be, then the Indemnifying Party shall have the right, at its sole cost and
expense, to employ counsel reasonably acceptable to the Indemnified Party to
defend any such Claim asserted against the Indemnified Party. Notwithstanding
anything to the contrary in the preceding sentence, if the Indemnified Party (i)
reasonably believes that its interests with respect to a Claim (or any material
portion thereof) are in conflict with the interests of the Indemnifying Party
with respect to such Claim (or portion thereof) and (ii) promptly notifies the
Indemnifying Party, in writing, of the nature of such conflict, then the
Indemnified Party shall be entitled to choose, at the sole cost and expense of
the Indemnifying Party, independent counsel to defend such Claim (or the
conflicting portion thereof). The Indemnified Party shall have the right to
participate in the defense of any Claim, at its own expense (except to the
extent provided in the preceding sentence), but the Indemnifying Party shall
retain control over such litigation (except as provided in the preceding
sentence). The Indemnifying Party shall notify the Indemnified Party in writing,
as promptly as possible (but in any case before the due date for the answer or
response to a Claim) after receipt of the notice of Claim given by the
Indemnified Party to the Indemnifying Party under Section 4.3(a), of its
election to defend in good faith any such third party Claim. For so long as the
Indemnifying Party is defending in good faith any such Claim asserted by a third
party against the Indemnified Party, the Indemnified Party shall not settle or
compromise such Claim without the prior written consent of the Indemnifying
Party. The Indemnified Party shall cooperate with the Indemnifying Party in
connection with any such defense and shall make available to the Indemnifying
Party or its agents all records and other materials in the Indemnified Party's
possession reasonably required by the Indemnifying Party for its use in
contesting any third party Claim; provided, however, that the Indemnifying Party
shall have agreed, in writing, to keep such records and other materials
confidential except (i) to the extent required for defense of the relevant Claim
or (ii) as required by law, rule or regulation or court order. Whether or not
the Indemnifying Party elects to defend any such Claim, the Indemnified Party
shall have no obligation to do so. Within 30 days after a final determination
(including a settlement) has been reached with respect to any Claim contested
pursuant to this Section 4.3(b), the Indemnifying Party shall satisfy its
obligations hereunder with respect thereto.
4.4 DETERMINATION OF LOSS AND AMOUNT. For purposes of determining
whether any ICC Loss or Parent Loss has occurred, or the amount of any such ICC
Loss or Parent Loss, the representations, warranties, covenants and agreements
of the parties set forth herein, the Merger Agreement, the Securities
Representation Letter or in any other instrument, certificate or affidavit
delivered in connection herewith or therewith shall be considered without regard
to any materiality qualification set forth herein or therein.
ARTICLE V
TERMINATION, AMENDMENT AND WAIVER
5.1 TERMINATION. This Agreement shall terminate 20 business days
after termination of the Merger Agreement in accordance with Section 8.1
thereof.
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5.2 AMENDMENT. This Agreement may be amended by the mutual
agreement of Parent, Sub and the ICC Stockholders at any time before or after
approval of the Merger by the stockholders of ICC; provided, however, that after
such approval, no amendment shall be made which (i) changes the form or
decreases the amount of the consideration to be received in the Merger, (ii) in
any way materially adversely affects the rights of the stockholders of ICC, or
(iii) under applicable law would require approval of the stockholders of ICC, in
any such case referred to in clauses (i), (ii) and (iii), without the further
approval of the stockholders of ICC. This Agreement may not be amended except by
an instrument in writing signed on behalf of the parties hereto, provided that
after the Effective Time (as defined in the Merger Agreement), any such
amendment must be signed by the former holders of a majority of the ICC Stock.
5.3 WAIVER. At any time prior to the Effective Time, the parties
hereto may, to the extent permitted by applicable law, (i) extend the time for
the performance of any of the obligations or other acts of any other party
hereto, (ii) waive any inaccuracies in the representations and warranties by any
other party contained herein or in any documents delivered by any other party
pursuant hereto and (iii) waive compliance with any of the agreements of any
other party or with any conditions to its own obligations contained herein. Any
agreement on the part of a party hereto to any such extension or waiver shall be
valid only if set forth in an instrument in writing signed on behalf of such
party.
ARTICLE VI
GENERAL PROVISIONS
6.1 SURVIVAL; RECOURSE. None of the agreements contained herein
shall survive the Merger, except that (i) the covenants contained in Article III
and the obligations to indemnify contained in Article IV shall survive the
Merger indefinitely (except to the extent a shorter period of time is explicitly
specified therein); and (ii) the representations and warranties made in Articles
I and II shall survive the Merger, and shall survive any independent
investigation by the parties, and any dissolution, merger or consolidation of
Parent, and shall bind the legal representatives, assigns and successors of the
ICC Stockholders and Parent, for a period of 18 months after the Effective Time.
6.2 NOTICES. All notices or other communications under this
Agreement shall be in writing and shall be given (and shall be deemed to have
been duly given upon receipt) by delivery in person, by facsimile (with
confirmation of receipt), or by registered or certified mail, postage prepaid,
return receipt requested, addressed as follows:
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If to the ICC To the address listed under the signature
Stockholders: line of the applicable ICC Stockholder
With copies to: Interactive Corporate Communications, Inc.
000 Xxxxxxxxxxxx Xxxx
0xx Xxxxx
Xxxxx Xxxxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
and to: Winston & Xxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Telephone: (000) 000-0000
Fax: (000) 000-0000
If to Parent or Sub: Consumer Financial Network, Inc.
0000 Xxxxxxxxx Xxxxxx
Xxxxx 000, Xxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Telephone: (000) 000-0000
Fax: (000) 000-0000
With copies to: Xxxxxxxxx Traurig LLP
One Buckhead Plaza
0000 Xxxxxxxxx Xx., Xxx. 0000
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
Telephone: (000) 000-0000
Fax: (000) 000-0000
and to: Xxxxx & Company
000 Xxxx Xxx., 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx XX, Esq.
Telephone: (000) 000-0000
Fax: (000) 000-0000
or to such other address as any party may have furnished to the other parties in
writing in accordance with this Section.
6.3 ENTIRE AGREEMENT. The schedules hereto are incorporated herein
by reference. This Agreement, the Merger Agreement and the documents, schedules
and instruments referred
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to herein or therein and to be delivered pursuant hereto or thereto constitute
the entire agreement among the parties pertaining to the subject matter hereof,
and supersede all other prior agreements and understandings, both written and
oral, among the parties, or between any of them, with respect to the subject
matter hereof. There are no other representations or warranties, whether written
or oral, between the parties in connection with the subject matter hereof,
except as expressly set forth herein or in the Merger Agreement.
6.4 ASSIGNMENTS; PARTIES IN INTEREST. Neither this Agreement nor
any of the rights, interests or obligations hereunder may be assigned by any of
the parties hereto (whether by operation of law or otherwise) without the prior
written consent of the other parties (and any assignment otherwise shall be
void), except that the rights, interests, and obligations of Sub hereunder may
be assigned to any direct wholly owned Delaware subsidiary of Parent without
such prior consent. Subject to the preceding sentence, this Agreement shall be
binding upon and inure solely to the benefit of each party hereto, and nothing
herein, express or implied, is intended to or shall confer upon any individual
or Entity not a party hereto any right, benefit or remedy of any nature
whatsoever under or by reason hereof, except as otherwise provided herein.
6.5 GOVERNING LAW. This Agreement, except to the extent that the
Delaware General Corporation Law or the BCL is mandatorily applicable to the
Merger, or to the rights of the ICC Stockholders or the other parties hereto
with respect to the Merger, shall be governed in all respects by the laws of the
State of New York (without giving effect to the provisions thereof relating to
conflicts of law).
6.6 HEADINGS; INTERPRETATION; INCORPORATION. The descriptive
headings herein are inserted for convenience of reference only and are not
intended to be part of or to affect the meaning or interpretation hereof. Words
such as "herein," "hereof," "hereto," "hereunder" or the like shall refer to
this Agreement as a whole. The words "include" or "including" shall be by way of
example rather than by limitation. The words "or," "either" or "any" shall not
be exclusive. Any pronoun used herein shall include the corresponding masculine,
feminine or neuter forms. The parties hereto have participated jointly in the
negotiation and drafting hereof; accordingly, no presumption or burden of proof
shall arise favoring or disfavoring any party by virtue of the authorship
hereof. References to Sections, Articles, Schedules or Exhibits shall, unless
the context otherwise requires, be to Sections, Schedules or Exhibits hereof.
The Schedules and Exhibits hereto are incorporated herein by reference.
6.7 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, including by facsimile, each of which shall be deemed an original
but all of which taken together shall constitute a single agreement.
6.8 SEVERABILITY. If any term or other provision hereof is
invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions hereof shall nevertheless remain in
full force and effect provided that the economics or legal substance of the
transactions contemplated hereby are not affected in any manner materially
adverse to any party. Upon determination by a court of competent jurisdiction
that any term or other provision hereof is invalid, illegal or incapable of
being enforced, the parties hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
- 11 -
13
possible to the fullest extent permitted by applicable law in an acceptable
manner to the end that the transactions contemplated hereby are fulfilled to the
extent possible.
- SIGNATURES ON THE FOLLOWING PAGE -
- 12 -
14
IN WITNESS WHEREOF, Parent and Sub have caused this Agreement to be
signed and delivered by their respective duly authorized officers, and each ICC
Stockholder has signed and delivered this Agreement, all as of the date first
written above.
"PARENT"
Consumer Financial Network, Inc., a Delaware
corporation
By: /s/ C. Xxxxxxxx Xxxxxxxx
------------------------------------------
Title: President
---------------------------------------
"SUB"
CFN Merger Corp., Inc., a Delaware corporation
By: /s/ C. Xxxxxxxx Xxxxxxxx
------------------------------------------
Title: President
---------------------------------------
"ICC STOCKHOLDERS"[ ]
Xxxxx Xxxxxxxxx Partners, LP
By: /s/ Xxxxx Xxxxxxxxx
------------------------------------------
Title: General Partner
---------------------------------------
/s/ Xxxxxxx Xxxxxxxxx
---------------------------------------------
Xxxxxxx Xxxxxxxxx
/s/ Xxxxxxxx Xxxxxx
---------------------------------------------
Xxxxxxxx Xxxxxx
/s/ Xxxxx Xxxxxxx
---------------------------------------------
Xxxxx Xxxxxxx
/s/ Xxxxxx XxXxxxx
---------------------------------------------
Xxxxxx XxXxxxx
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
15
Garfield Associates LLC
By: /s/ Xxxxxxx Xxxxxxxxx
------------------------------------------
Title: Member Manager
---------------------------------------
/s/ Xxxxxxx Xxxxxxxxx
---------------------------------------------
Xxxxxxx Xxxxxxxxx
/s/ Xxxxxxx Xxxxxxxxx
---------------------------------------------
Xxxxxxx Xxxxx Securities Inc.
By: /s/ Xxxxxxx Xxxxxxxxx
------------------------------------------
Title: President
---------------------------------------
/s/ Xxxxxx Xxxxxx
---------------------------------------------
Xxxxxx Xxxxxx
