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Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of May 2, 2001 is
entered into by and among xXxxxxxx.xxx, Inc., Colonial Direct Financial Group,
Inc. ("Colonial Direct"), vFinance Investments, Inc. formerly known as First
Colonial Securities Group, Inc. ("Merger Subsidiary") and a wholly owned
subsidiary of Colonial Direct, vFinance Investments Holding, Inc, ("VIH"), a
newly formed company which is a wholly owned subsidiary of xXxxxxxx.xxx, Inc.,
and First Level Capital, Inc. ("First Level") which will become a wholly owned
subsidiary of VIH prior to the Closing, as defined herein.
Whereas, the Board of Directors of each of xXxxxxxx.xxx, Inc., Colonial Direct,
Merger Subsidiary, VIH and First Level has determined that it is in the best
interests of its shareholders that Merger Subsidiary and First Level enter into
a business combination under which First Level will become a wholly owned
subsidiary of VIH (a newly formed wholly owned subsidiary of xXxxxxxx.xxx,
Inc.), VIH shall then acquire all of the issued and outstanding capital stock of
Merger Subsidiary from Colonial Direct and then Merger Subsidiary will merge
with and into First Level pursuant to the Merger (as defined in Section 1.1
hereof);
Whereas, upon completion of the Merger, Board of Directors of Merger Subsidiary
become the Board of Directors of First Level;
Whereas, upon completion of the Merger, the name of First Level will to changed
to vFinance Investments, Inc., the name of Merger Subsidiary;
Whereas, upon completion of the Merger, the executive officers, supervisors and
registered representatives of Merger Subsidiary shall become the executive
officers, supervisors and registered representative of First Level;
Whereas, the Board of Directors of each of xXxxxxxx.xxx, Inc., Colonial Direct,
Merger Subsidiary, VIH and First Level has determined that the Merger and the
other transactions contemplated hereby are consistent with, and in furtherance
of, its respective business strategies and goals and has approved the Merger
upon the terms and conditions set forth herein; and
Now, therefore, in consideration of the foregoing and the mutual covenants and
agreements herein contained, and intending to be legally bound hereby, the
Parties hereto hereby agree as follows:
ARTICLE I
THE MERGER
Section 1.1 THE MERGER. At the Effective Time (as defined in Section 1.2
hereof), subject to and upon the terms and conditions of this Agreement and the
applicable state laws, after First Level becomes a wholly owned subsidiary of
VIH followed by the acquisition of all of the issued and outstanding shares of
Merger Subsidiary from Colonial Direct by VIH as described in Section 2.1,
Merger Subsidiary will then be merged with and into First Level (the "Merger"),
whereby the separate corporate existence of Merger Subsidiary shall cease and
First Level shall continue as the surviving corporation which shall be a
subsidiary of VIH. First Level as the surviving corporation after the Merger is
herein sometimes referred to as the "Surviving Corporation" and Merger
Subsidiary as the non-surviving corporation after the Merger is herein sometimes
referred to as the "Merged Corporation." xXxxxxxx.xxx, Inc., Colonial Direct,
VIH, First Level and Merger Subsidiary are herein referred to collectively as
the "Parties" and each individually as a "Party."
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Section 1.2 EFFECTIVE TIME. As promptly as practicable after the satisfaction or
waiver of the conditions set forth in Article VII hereof, the consummation of
the acquisition of the Merger Subsidiary Common Stock described in Section 2.1
and the Closing referred to in Section 2.9 hereof, the Parties shall cause the
Merger to be consummated by filing a Certificate of Merger with the Secretary of
State of the State of New Jersey with respect to the Merger, in such form as
required by, and executed in accordance with, the relevant provisions of the
applicable state corporate laws (the time of such filing being the "Effective
Time").
Section 1.3 EFFECT OF THE MERGER. At the Effective Time, the effect of the
Merger shall be as provided in the applicable provisions of the applicable state
corporate laws. Without limiting the generality of the foregoing, and subject
thereto, at the Effective Time all the property, rights, privileges, powers and
franchises of First Level and Merger Subsidiary shall continue with, or vest in,
as the case may be, First Level as the Surviving Corporation, and all debts,
liabilities and duties of First Level and Merger Subsidiary shall continue to
be, or become, as the case may be, the debts, liabilities and duties of First
Level as the Surviving Corporation. As of the Effective Time, the Surviving
Corporation shall be a direct subsidiary of VIH. VIH shall remain a direct
subsidiary of xXxxxxxx.xxx, Inc.
Section 1.4 SUBSEQUENT ACTIONS. If at any time after the Effective Time the
Surviving Corporation shall consider or be advised that any deeds, bills of
sale, assignments, assurances or any other actions or things are necessary or
desirable to continue in, vest, perfect or confirm of record or otherwise in the
Surviving Corporation its right, title or interest in, to or under any of the
rights, properties, privileges, franchises or assets of either of its
constituent corporations acquired or to be acquired by the Surviving Corporation
as a result of, or in connection with, the Merger or otherwise to carry out this
Agreement, the officers and directors of the Surviving Corporation shall be
directed and authorized to execute and deliver, in the name and on behalf of
either of such constituent corporations, all such deeds, bills of sale,
assignments and assurances and to take and do, in the name and on behalf of each
of such corporations or otherwise, all such other actions and things as may be
necessary or desirable to vest, perfect or confirm any and all right, title and
interest in, to and under such rights, properties, privileges, franchises or
assets in the Surviving Corporation or otherwise to carry out this Agreement.
Section 1.5 CERTIFICATE OF INCORPORATION; BYLAWS; DIRECTORS AND OFFICERS OF
SURVIVING CORPORATION; NAME CHANGE. Unless otherwise agreed by First Level and
Merger Subsidiary before the Effective Time, at the Effective Time:
(a) the Certificate of Incorporation of First Level as the Surviving
Corporation shall be the Articles of Incorporation of First Level as in effect
immediately prior to the Effective Time, until thereafter amended as provided by
Law and such Certificate of Incorporation;
(b) the bylaws of First Level as the Surviving Corporation shall be the
bylaws of First Level immediately prior to the Effective Time, until thereafter
amended as provided by Law and the Certificate of Incorporation and the bylaws
of such Surviving Corporation;
(c) the directors and officers of Merger Subsidiary immediately prior
to the Effective Time shall continue to serve in their respective offices of the
Surviving Corporation from and after the Effective Time, in each case until
their successors are elected or appointed and qualified or until their
resignation or removal. If at the Effective Time a vacancy shall exist on the
Board of Directors or in any office of the Surviving Corporation, such vacancy
may thereafter be filled in the manner provided by Law and the bylaws of the
Surviving Corporation; and
(d) the name of First Level shall be changed to "vFinance Investments,
Inc.", the name of Merger Subsidiary.
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ARTICLE II
ACQUISITION OF MERGER SUBSIDIARY STOCK AND EFFECT ON STOCK OF THE
SURVIVING CORPORATION AND THE MERGED CORPORATION
Section 2.1 ACQUISITION OF MERGER SUBSIDIARY SECURITIES BY VIH FROM COLONIAL
DIRECT.
(a) xXxxxxxx.xxx, Inc. and VIH, which is wholly owned by xXxxxxxx.xxx,
Inc., agree that First Level which is currently wholly owned by xXxxxxxx.xxx,
Inc. shall become wholly owned by VIH. VIH. VIH shall become the holding company
to First Level and First Level shall remain wholly owned by xXxxxxxx.xxx, Inc.
indirectly as a third tier subsidiary. This reorganization shall be accomplished
by xXxxxxxx.xxx, Inc. transferring 100% of the capital stock of First Level to
VIH.
(b) Following the reorganization described in Section 2.1(a) above and
based upon the representations and warranties set forth herein, VIH hereby
purchases from Colonial Direct, and Colonial Direct hereby sells to VIH all of
the issued and outstanding capital stock of Merger Subsidiary (the "Merger
Subsidiary Common Stock") free and clear of any and all encumbrances. In
consideration of and in full payment for the Merger Subsidiary Common Stock, VIH
hereby agrees to assume all of the loans payable due from Colonial Direct to
xXxxxxxx.xxx, Inc. representing the loans made from xXxxxxxx.xxx, Inc. to
Colonial Direct on January 5, 2001, February 28, 2001, March 30, 2001 and April
6, 2001 and April 30, 2001 in the aggregate amount of $856,000
("Consideration"). The manner and basis of converting the shares of common stock
of the Surviving Corporation and of the Merged Corporation at the Effective
Time, by virtue of the Merger and without any action on the part of any of the
Parties or the holder of any of such securities, shall be as hereinafter set
forth in this Article II.
Section 2.2 CONVERSION OF SHARES.
(a) Immediately following the acquisition of the Merger Subsidiary
Common Stock by VIH as described in Section 2.1, subject to Section 2.7, each
share of Merger Subsidiary Common Stock issued and outstanding immediately
before the Effective Time (excluding those canceled pursuant to Section 2.3) and
all rights in respect thereof, shall at the Effective Time, without any action
on the part of any holder thereof, be converted into and become one (1) share of
common stock of First Level ("First Level Common Stock").
(b) As of the Effective Time, all shares of Merger Subsidiary Common
Stock converted pursuant to Section 2.2(a) shall no longer be outstanding and
shall automatically be canceled and retired and shall cease to exist, and any
holder of a certificate (each, an "Old Certificate") representing any such
shares of Merger Subsidiary Common Stock shall cease to have any rights with
respect thereto.
Section 2.3 CANCELLATION OF TREASURY SHARES AND SHARES OWNED BY COLONIAL DIRECT
AND MERGER SUBSIDIARY. At the Effective Time, each share of Merger Subsidiary
Common Stock held in the treasury of Merger Subsidiary or owned by Merger
Subsidiary or Colonial Direct immediately prior to the Effective Time shall be
canceled and retired and no shares of stock or other securities of VIH or the
Surviving Corporation shall be issuable, and no payment or other consideration
shall be made by xXxxxxxx.xxx, Inc., VIH or the Surviving Corporation, with
respect thereto.
Section 2.4 CONVERSION OF COMMON STOCK OF THE MERGED CORPORATION INTO COMMON
STOCK OF THE SURVIVING CORPORATION. At the Effective Time, each share of common
stock of Merger Subsidiary issued and outstanding immediately prior to the
Effective Time, and all rights in respect thereof, shall, without any action on
the part of Colonial Direct or Merger Subsidiary, forthwith cease to exist and
be converted into one (1) validly issued, fully paid and nonassessable share of
common stock, of the Surviving Corporation (the "Surviving Corporation Common
Stock"). Immediately after the Effective
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Time and upon surrender by VIH of the of the certificates representing the
Merger Subsidiary Common Stock, First Level as the Surviving Corporation shall
deliver to VIH an appropriate certificate or certificates representing the
Surviving Corporation Common Stock created by conversion of the Merger
Subsidiary Common Stock owned by VIH.
Section 2.5 ADJUSTMENTS TO EXCHANGE RATIO. Without limiting any other provision
of this Agreement, the Exchange Ratio shall not be adjusted or adjustable.
Section 2.6 FRACTIONAL SHARES. No fraction of a share of First Level Common
Stock will be issued hereunder.
Section 2.7 SURRENDER OF CERTIFICATES.
(a) EXCHANGE AGENT. Prior to the Effective Time, VIH shall act as
Exchange Agent in the Merger.
(b) FIRST LEVEL TO PROVIDE COMMON STOCK. On or prior to the Effective
Time, First Level shall make available to the Exchange Agent for exchange in
accordance with this Article II, the shares of First Level Common Stock issuable
pursuant to Section 2.2 in exchange for outstanding Merger Subsidiary Common
Stock.
(c) EXCHANGE PROCEDURES. Promptly after the Effective Time, the
Surviving Corporation shall cause to be issued a certificate or certificates
(the "Certificates") which immediately prior to the Effective Time represented
outstanding shares of Merger Subsidiary Common Stock whose shares were converted
into the right to receive shares of First Level Common Stock pursuant to Section
2.2. and shall be in such form and have such other provisions as First Level may
reasonably specify.
Section 2.8 FURTHER OWNERSHIP RIGHTS IN MERGER SUBSIDIARY COMMON STOCK. All
shares of First Level Common Stock issued upon the surrender for exchange of
Merger Subsidiary Common Stock in accordance with the terms of this Article II
shall be deemed to have been issued in full satisfaction of all rights
pertaining to such Merger Subsidiary Common Stock under this Article II, and
there shall be no further registration of transfers on the records of the
Surviving Corporation of Merger Subsidiary Common Stock which were outstanding
immediately prior to the Effective Time. If, after the Effective Time,
Certificates are presented to the Surviving Corporation for any reason, they
shall be canceled and exchanged as provided in this Article II.
Section 2.9 CLOSING. Unless this Agreement shall have been terminated and the
transactions contemplated by this Agreement abandoned pursuant to the provisions
of Article VIII, and subject to the provisions of Article VII, the closing of
the Merger (the "Closing") will take place at 10:00 a.m. (Eastern time) on a
date (the "Closing Date") to be mutually agreed upon by the parties, which date
shall be not later than the third Business Day after all the conditions set
forth in Article VII shall have been satisfied (or waived in accordance with
Section 8.4, to the extent the same may be waived), unless another time and/or
date is agreed to in writing by the parties. The Closing shall take place at the
offices of Merger Subsidiary, unless another place is agreed to in writing by
the parties.
Section 2.10 LOST, STOLEN OR DESTROYED CERTIFICATES. In the event any
Certificates shall have been lost, stolen or destroyed, the Exchange Agent shall
issue in exchange for such lost, stolen or destroyed Certificates, upon the
making of an affidavit of that fact by Colonial Direct.
Section 2.11 TAX CONSEQUENCES. For federal income tax purposes, the parties
intend that the Merger be treated as a tax free reorganization under the Code
and the parties agree to take whatever steps are required to give effect to the
Merger on such a basis.
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Section 2.12 OPTIONS TO PURCHASE MERGER SUBSDIARY COMMON STOCK. At the Effective
Time, there shall be no options or warrants granted by Merger Subsidiary to
purchase shares of Merger Subsidiary Common Stock (collectively, the "Merger
Subsidiary Options", and each a "Merger Subsidiary Option) and there shall be no
Merger Subsidiary Options outstanding and unexercised immediately prior to the
Effective Time. In the alternative, and and all Merger Subsidiary Options shall
be deemed null and void at the Effective Time.
Section 2.13 DISSENTING SHAREHOLDERS. There are no shareholders of Merger
Subsidiary Common Stock which are issued and outstanding immediately prior to
the Effective Time and which are held by a shareholder who has the right (to the
extent such right is available by Law) to demand and receive payment of the fair
value of the shares of Merger Subsidiary Common Stock owned by such shareholder
(the "Dissenting Shares") pursuant to applicable law.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF COLONIAL DIRECT AND MERGER SUBSIDIARY
Except as set forth in the disclosure schedule delivered by Colonial Direct or
Merger Subsidiary to First Level as provided for herein (the "Merger Subsdiary
Disclosure Schedule") (each section of which qualifies the correspondingly
numbered representation and warranty or covenant as specified therein), Colonial
Direct and Merger Subsidiary hereby represents and warrants to First Level as
follows:
Section 3.1 ORGANIZATION AND QUALIFICATION. Merger Subsidiary is a corporation
duly organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation or organization. Merger Subsidiary has the
requisite corporate power and authority and any necessary Governmental
Authority, franchise, license, certificate or permit to own, operate or lease
the properties that it purports to own, operate or lease and to carry on its
business as it is now being conducted, and is duly qualified as a foreign
corporation to do business, and is in good standing, in each jurisdiction where
the character of its properties owned, operated or leased or the nature of its
activities makes such qualification necessary.
Section 3.2 ARTICLES OF INCORPORATION AND BYLAWS. Merger Subsidiary has
heretofore furnished, or otherwise made available, to First Level a complete and
correct copy of the Articles of Incorporation and the bylaws, each as amended to
the date hereof, of Merger Subsidiary. Such Articles of Incorporation and bylaws
are in full force and effect. Merger Subsidiary is not in violation of any of
the provisions of its Articles of Incorporation.
Section 3.3 CAPITALIZATION.
(a) The authorized, issued and outstanding capital stock of Merger
Subsidiary consists of the shares as described in its December 31, 2000 audited
financial statement. Since December 31, 2000, no shares of Merger Subsidiary
Common Stock have been issued. There are no outstanding obligations of Merger
Subsidiary to repurchase, redeem or otherwise acquire any shares of capital
stock of Merger Subsidiary.
(b) Merger Subsidiary does not have any subsidiaries.
(c) There are no voting trusts, proxies or other agreements,
commitments or understandings of any character to which Merger Subsidiary is a
party or by which Merger Subsidiary is bound with respect to the voting of any
shares of capital stock of Merger Subsidiary.
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Section 3.4 AUTHORITY RELATIVE TO THIS AGREEMENT.
Colonial Direct and Merger Subsidiary has the necessary corporate power
and authority to enter into this Agreement. The execution and delivery of this
Agreement by Colonial Direct and Merger Subsidiary, and the consummation by
Colonial Direct and Merger Subsidiary of the transactions contemplated hereby,
have been duly authorized by all necessary corporate action on the part of
Colonial Direct and Merger Subsidiary. This Agreement has been duly executed and
delivered by Colonial Direct and Merger Subsidiary and, assuming the due
authorization, execution and delivery thereof by xXxxxxxx.xxx, Inc., VIH and
First Level, constitutes a legal, valid and binding obligation of Merger
Subsidiary, enforceable against it in accordance with its terms.
Section 3.5 NO CONFLICT; REQUIRED FILINGS AND CONSENTS.
(a) Except as described in subsection (b) below, the execution and
delivery of this Agreement by Colonial Direct and Merger Subsidiary does not,
and the performance of this Agreement by Colonial Direct and Merger Subsidiary
will not, (i) violate or conflict with the Articles of Incorporation or bylaws
of Colonial Direct and Merger Subsidiary, (ii) conflict with or violate any Law
applicable to Colonial Direct or Merger Subsidiary or by which any of their
property or assets (including investments) is bound or affected, or (iii) result
in any breach of or constitute a default (or an event which with notice or lapse
of time or both would become a default) under, or give to others any rights of
termination or cancellation of, or result in the creation of an Encumbrance on
any of the properties or assets (including investments) of Colonial Direct or
Merger Subsidiary pursuant to, result in the loss of any material benefit under,
or result in any modification or alteration of, or require the consent of any
other party to, any contract, instrument, permit, license or franchise to which
Colonial Direct or Merger Subsidiary is a party or by which Colonial Direct or
Merger Subsidiary or any of their property or assets (including investments) is
bound or affected, except, in the case of clauses (ii) and (iii) above, for
conflicts, violations, breaches, defaults, results or consents which,
individually or in the aggregate, would not have a Material Adverse Effect on
Colonial Direct or Merger Subsidiary.
(b) Except for applicable requirements, if any, of the Securities Act,
the Exchange Act, the Blue Sky Laws, or NASD rules and regulations and the
filing and recordation of appropriate merger or other documents under the
applicable state corporate laws, (i) Colonial Direct or Merger Subsidiary is not
required to submit any notice, report or other filing with any Governmental
Authority in connection with the execution, delivery or performance of this
Agreement and (ii) no waiver, consent, approval or authorization of any
Governmental Authority is required to be obtained by Colonial Direct or Merger
Subsidiary in connection with its execution, delivery or performance of this
Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF VIH AND FIRST LEVEL
Except as set forth in the disclosure schedule delivered by VIH and First Level
to Merger Subsidiary as provided for herein (the "First Level Disclosure
Schedule") (each section of which qualifies the correspondingly numbered
representation and warranty or covenant as specified therein), VIH and First
Level hereby represents and warrants to Colonial Direct and Merger Subsidiary as
follows:
Section 4.1 ORGANIZATION AND QUALIFICATION; SUBSIDIARIES. VIH and First Level
are duly organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation or organization. VIH and First Level have the
requisite corporate power and authority and any necessary Governmental
Authority, franchise, license, certificate or permit to own, operate or lease
the properties that it purports to own, operate or lease and to carry on its
business as it is now being conducted, and is duly qualified as a foreign
corporation to do business, and is in good standing, in each jurisdiction where
the character of its properties owned, operated or leased or the nature of its
activities makes such qualification necessary.
Section 4.2 CERTIFICATE OF INCORPORATION AND BYLAWS. VIH and First Level has
heretofore furnished, or otherwise made available, to Colonial Direct and Merger
Subsidiary a complete and correct
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copy of the Certificate of Incorporation and the bylaws, each as amended to the
date hereof, of VIH and First Level and each of its Subsidiaries. Such
Certificate of Incorporation and bylaws are in full force and effect. Neither
First Level nor any of its Subsidiaries is in violation of any of the provisions
of its respective Certificate of Incorporation.
Section 4.3 AUTHORITY RELATIVE TO THIS AGREEMENT.
VIH and First Level have the necessary corporate power and authority to
enter into this Agreement and, subject to obtaining the requisite approval of
this Agreement and the related increase in the authorized capital of First Level
as required by applicable state corporate law to perform its obligations
hereunder. The execution and delivery of this Agreement by VIH and First Level,
and the consummation by VIH and First Level of the transactions contemplated
hereby, have been duly authorized by all necessary corporate action on the part
of xXxxxxxx.xxx, Inc., VIH and First Level. This Agreement has been duly
executed and delivered by xXxxxxxx.xxx, Inc., VIH and First Level, assuming the
due authorization, execution and delivery thereof by Colonial Direct and Merger
Subsidiary, constitutes a legal, valid and binding obligation of First Level,
enforceable against it in accordance with its terms.
Section 4.5 NO CONFLICT; REQUIRED FILINGS AND CONSENTS.
(a) Except as described in subsection (b) below, the execution and
delivery of this Agreement by VIH and First Level does not, and the performance
of this Agreement by VIH and First Level will not, (i) violate or conflict with
the Certificate of Incorporation or bylaws of VIH or First Level, (ii) conflict
with or violate any Law applicable to VIH or First Level or by which any of
their respective property or assets (including investments) is bound or
affected, (iii) result in any breach of or constitute a default (or an event
which with notice or lapse of time or both would become a default) under, or
give to others any rights of termination or cancellation of, or result in the
creation of an Encumbrance on any of the properties or assets (including
investments) of VIH or First Level pursuant to, result in the loss of any
material benefit under, or result in any modification or alteration of, or
require the consent of any other party to, any contract, instrument, permit,
license or franchise to which VIH or First Level are a party or by which VIH or
First Level or any of their respective property or assets (including
investments) is bound or affected, except, in the case of clauses (ii) and (iv)
above, for conflicts, violations, breaches, defaults, results or consents which,
individually or in the aggregate, would not have a Material Adverse Effect on
VIH or First Level.
(b) Except for applicable requirements, if any, of the Securities Act
Exchange Act Blue Sky Laws, NASD, and the filing and recordation of appropriate
merger or other documents under the applicable state corporate laws, (i) neither
VIH or First Level are required to submit any notice, report or other filing
with any Governmental Authority in connection with the execution, delivery or
performance of this Agreement and (ii) no waiver, consent, approval or
authorization of any Governmental Authority is required to be obtained by VIH or
First Level in connection with its execution, delivery or performance of this
Agreement.
ARTICLE V CONDUCT OF BUSINESSES
PENDING THE MERGER
Section 5.1 CONDUCT OF BUSINESS IN THE ORDINARY COURSE. Each of Merger
Subsidiary and First Level covenants and agrees that, except as otherwise
provided for herein, between the date hereof and the Effective Time, unless the
Chairman of the Board of Directors of the other shall otherwise consent in
writing, the business of such Party shall be conducted only in, and such
entities shall not take any action except in, the ordinary course of business
and in a manner consistent with past practice; and each of Merger Subsidiary and
First Level will use their commercially reasonable efforts to preserve
substantially intact their business organizations, to keep available the
services of those of their present
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officers, employees and consultants who are integral to the operation of their
businesses as presently conducted, to maintain in effect all Material Agreements
and to preserve their present relationships with significant customers, service
agents, clearing firms and suppliers and with other persons with whom they have
significant business relations.
Section 5.2 NO SOLICITATION.
(a) From the date hereof until the earlier of the Effective Time or the
termination of this Agreement in accordance with its terms, neither Party shall,
nor shall it permit any of its affiliates to, nor shall it authorize or permit
or any of its or their respective officers, directors, employees,
representatives or agents (collectively, the "Representatives") directly or
indirectly, to (i) solicit, facilitate, initiate or encourage, or take any
action to solicit, facilitate, initiate or encourage, any inquiries or the
making of any proposal or offer that constitutes an Acquisition Proposal or (ii)
participate or engage in discussions or negotiations with, or provide any
information to, any Person concerning an Acquisition Proposal or which might
reasonably be expected to result in an Acquisition Proposal. Each party shall
immediately cease and cause to be terminated and shall cause all of its
Representatives to terminate all existing discussions or negotiations with any
Persons conducted heretofore with respect to, or that could reasonably be
expected to lead to, an Acquisition Proposal. Each party shall promptly notify
all of its Representatives of its obligations under this Section.
(b) Notwithstanding the foregoing, any Party (the "Solicited Party")
may participate in discussions or negotiations with, or furnish information to a
third party pursuant to a confidentiality agreement with terms no less favorable
to the Solicited Party than those in effect between the Solicited Party and the
other Parties hereto if and only if (i) such Solicited Party has submitted an
unsolicited BONA FIDE written Acquisition Proposal to the Solicited Party's
Board of Directors and (ii) neither the Solicited Party nor any of its
Representatives, shall have violated Section 5.2(a) and the Board of Directors
of the Solicited Party (A) believes in good faith based on such matters as it
deems relevant, including the advice of the Solicited Party's financial advisor,
that such Acquisition Proposal constitutes a Superior Proposal, (B) receives a
written opinion of outside counsel to the effect that, and based on such advice
such Board determines by a majority vote in its good faith judgment that, taking
such action is required to satisfy the fiduciary duties of such Board under
applicable Law and (C) provides prior written notice to the other Parties of its
decision to so participate or furnish.
(c) Except as set forth in the following sentence, neither the Board of
Directors of a Party to this Agreement nor any committee thereof shall (i)
approve or recommend, or propose to approve or recommend, any Acquisition
Proposal other than the Merger, (ii) withdraw or modify or propose to withdraw
or modify in a manner adverse to the other party its approval or recommendation
of the Merger, this Agreement or the transactions contemplated hereby, (iii)
upon a request by either of the other Parties to reaffirm its approval or
recommendation of this Agreement or the Merger, fail to do so within two (2)
Business Days after such request is made, (iv) enter, or cause such Party or any
Subsidiary of such Party to enter, into any letter of intent, agreement in
principle, acquisition agreement or other similar agreement related to any
Acquisition Proposal, or (v) resolve or announce its intention to do any of the
foregoing. The immediately preceding sentence notwithstanding, in the event that
prior to approval of the Merger by its shareholders, the Board of Directors of a
Party receives a Superior Proposal, the Board of Directors of such party may (i)
approve or recommend, or propose to approve or recommend, such Superior
Proposal, (ii) withdraw or modify, or propose to withdraw or modify, in a manner
adverse to the other Party its recommendation of the Merger, this Agreement or
the transactions contemplated hereby, (iii) fail to reaffirm its recommendation
of this Agreement or the Merger after a request by the other Party to do so, or
(iv) resolve or announce its intention to do any of the actions set forth in the
preceding clauses (i) through (iii), if (1) such Board of Directors receives a
written opinion of outside counsel to the effect that, and based on such advice
of outside counsel such Board determines by a majority vote of directors in
their good faith judgment that, taking such action is required to satisfy the
fiduciary duties of such directors and (2) such Party furnishes the other
Parties two (2) Business Days' prior written notice of the
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taking of such action (which notice shall include a description of the material
terms and conditions of the Superior Proposal and identify the person making the
same).
(d) In addition to the other obligations of the Parties set forth in
this Section 5.2, each Party shall immediately advise the other Party orally and
in writing of any request for information with respect to any Acquisition
Proposal, or any inquiry with respect to or which could result in an Acquisition
Proposal, the material terms and conditions of such request, Acquisition
Proposal or inquiry, and the identity of the person making the same. Each Party
shall inform the other Party on a prompt and current basis of the status and
content of any discussions regarding any Acquisition Proposal with a third Party
and as promptly as practicable of any change in the price, structure or form of
the consideration or material terms of and conditions regarding any Acquisition
Proposal or of any other developments or circumstances which could reasonably be
expected to culminate in the taking of any of the actions referred to in Section
5.2(c). Nothing contained in this Section 5.2(d) shall prevent any Party hereto
from complying with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange
Act.
ARTICLE VI
ADDITIONAL AGREEMENTS
Section 6.1 COLONIAL DIRECT AND MERGER SUBSIDIARY CORPORATE ACTION. Colonial
Direct and Merger Subsidiary shall promptly after the date hereof take all
action necessary in accordance with applicable state corporate laws and their
Certificate of Incorporation and bylaws to effectuate the terms and conditions
of this Agreement.
Section 6.2 VIN AND FIRST LEVEL SHAREHOLDERS' MEETING. VIH and First Level shall
promptly after the date hereof take all action necessary in accordance with
applicable state corporate laws and its Certificate of Incorporation and bylaws
to effectuate the terms and conditions of this Agreement.
Section 6.3 CONSUMMATION OF MERGER; ADDITIONAL AGREEMENTS.
(a) Upon the terms and subject to the conditions hereof and as soon as
practicable after the conditions set forth in Article VII hereof have been
fulfilled or waived, each of the Parties required to do so shall execute in the
manner required by the applicable state corporate laws and deliver to and file
with the applicable such instruments and agreements as may be required by such
state corporate laws and the Parties shall take all such other and further
actions as may be required by law to make the Merger effective.
(b) Each of the Parties will comply in all material respects with all
applicable laws and with all applicable rules and regulations of any
Governmental Authority in connection with its execution, delivery and
performance of this Agreement and the transactions contemplated hereby. Each of
the Parties agrees to use all commercially reasonable efforts to obtain in a
timely manner all necessary waivers, consents and approvals and to effect all
necessary registrations and filings, and to use all commercially reasonable
efforts to take, or cause to be taken, all other actions and to do, or cause to
be done, all other things necessary, proper or advisable to consummate and make
effective as promptly as practicable the transactions contemplated by this
Agreement and to effect all necessary filings under the Securities Act, the
Exchange Act, and the NASD Rules and Regulations.
(c) Each of the Parties shall, in connection with the efforts
referenced in Section 6.3(a) and (b), (i) cooperate in all respects with each
other in connection with any filing or submission and in connection with any
investigation or other inquiry, including any proceeding initiated by a private
party; (ii) promptly inform the other party of any material communication
received by such party from, or given by such party to any Governmental
Authority and of any material communication received or given in connection with
any proceeding by a private party, in each case regarding any of the
transactions contemplated hereby and (iii) consult with each other in advance of
any meeting or conference with any
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such Governmental Authority or, in connection with any proceeding by a private
party, with any other person, and to the extent permitted by the applicable
Governmental Authority or other person, give the other Parties the opportunity
to attend and participate in such meetings and conferences.
(d) In furtherance and not in limitation of the covenants of the
Parties contained in Sections 6.3(a), (b) and (c), if any Action, including any
Action by a private party, is instituted (or threatened to be instituted)
challenging any transaction contemplated by this Agreement as violative of any
applicable Law, or if any Law is enacted, entered or promulgated or enforced by
a Governmental Authority which would make the Merger or the other transactions
contemplated hereby illegal or otherwise prohibit or materially impair or delay
consummation of the transactions contemplated hereby or thereby, each of Parties
shall cooperate in all respects with each other and use all commercially
reasonable efforts to contest and resist any such Action, to have vacated,
lifted, reversed or overturned any Law, whether temporary, preliminary or
permanent, that is in effect and that prohibits, prevents or restricts
consummation of the transactions contemplated by this Agreement and to have such
Law repealed, rescinded or made inapplicable. Notwithstanding the foregoing or
any other provision of this Agreement, nothing in this Section 6.3 shall limit a
Party's right to terminate this Agreement pursuant to Section 8.1 so long as
such Party has up to then complied in all respects with its obligations under
this Section 6.3.
(e) If any objections are asserted with respect to the transactions
contemplated hereby under any applicable Law or if any suit is instituted by any
Governmental Authority or any private party challenging any of the transactions
contemplated hereby as violative of any applicable Law, each of First Level and
Merger Subsidiary shall use its commercially reasonable efforts to resolve any
such objections or challenge as such Governmental Authority or private party may
have to such transactions under such Law so as to permit consummation of the
transactions contemplated by this Agreement.
Section 6.4 NOTIFICATION OF CERTAIN MATTERS. Each of Colonial Direct, Merger
Subsidiary, VIH and First Level shall give prompt notice to the other of the
following:
(a) the occurrence or nonoccurrence of any event whose occurrence or
nonoccurrence would be likely to cause either (i) any representation or warranty
contained in this Agreement to be untrue or inaccurate in any material respect
at any time from the date hereof to the Effective Time, or (ii) directly or
indirectly, any Material Adverse Effect on such Party;
(b) any material failure of such Party, or any officer, director,
employee or Agent of any thereof, to comply with or satisfy any covenant,
condition or agreement to be complied with or satisfied by it hereunder.
Section 6.5 ACCESS TO INFORMATION; CONFIDENTIALITY.
From the date hereof to the Effective Time, each of Colonial Direct and
Merger Subsidiary shall, and its and their officers, directors, employees,
auditors, counsel and agents to afford the officers, employees, auditors,
counsel and agents of the other Party complete access at all reasonable times to
such Party's officers, employees, auditors, counsel agents, properties, offices
and other facilities and to all of their respective books and records (except as
may be required by Law), and shall furnish the other with all financial,
operating and other data and information as such other Party may reasonably
request, including in connection with confirmatory due diligence.
Section 6.6 POST-MERGER FIRST LEVEL BOARD OF DIRECTORS.
After the Effective Time, the Board of Directors of First Level shall
be comprised of four directors: Xxxx Xxxxxx, Xxxxxxx Xxxxxxxxxx, Xxxxxxx Xxxxx
and Xxxxxxx Xxxxxxx.
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Section 6.7 TAX-FREE REORGANIZATION. Each of the Parties will use its best
efforts to cause the Merger to qualify as a tax-free reorganization under the
Code.
ARTICLE VII
CONDITIONS TO MERGER
Section 7.1 CONDITIONS TO OBLIGATIONS OF EACH PARTY TO EFFECT THE MERGER. The
respective obligations of each Party to effect the Merger shall be subject to
the following conditions:
(a) BOARD AND SHAREHOLDER APPROVAL. The Colonial Direct, Merger
Subsidiary VIH and First Level Shareholder and Board approval and xXxxxxxx.xxx,
Inc. Board approval;
(b) AMENDMENT OF ARTICLES OF FIRST LEVEL. The Certificate of
Incorporation of First Level shall have been amended to increase the authorized
capital of First Level to permit the issuance of First Level Common Stock in
accordance with the requirements of Section 2.2;
(c) REGULATORY MATTERS. All authorizations, consents, orders, permits
or approvals of, or declarations or filings with, and all expirations of waiting
periods imposed by the NASD (all of the foregoing, "Consents") which are
necessary for the consummation of the transactions contemplated hereby, shall
have been filed, have occurred or have been obtained (all such Consents being
referred to as the "Requisite Regulatory Approvals") and all such Requisite
Regulatory Approvals shall be in full force and effect.
Section 7.2 ADDITIONAL CONDITIONS TO OBLIGATIONS OF MERGER SUBSIDIARY. The
obligations of Merger Subsidiary to effect the Merger are also subject to the
fulfillment of the following conditions:
REPRESENTATIONS AND WARRANTIES. The representations and warranties of
VIH and First Level contained in this Agreement shall be true and correct on the
date hereof and (except to the extent such representations and warranties speak
as of a date earlier than the date hereof) shall also be true and correct on and
as of the Closing Date, except for changes contemplated by this Agreement, with
the same force and effect as if made on and as of the Closing Date, provided,
however, that for purposes of this Section 7.2 only, such representations and
warranties shall be deemed to be true and correct unless the failure or failures
of such representations and warranties to be so true and correct (without regard
to materiality qualifiers contained therein), individually or in the aggregate,
results or would reasonably be expected to result in a Material Adverse Effect
on VIH and First Level, either with or without including its ownership of Merger
Subsidiary after the Merger;
Section 7.3 ADDITIONAL CONDITIONS TO OBLIGATIONS OF FIRST LEVEL. The obligations
of First Level to effect the Merger are also subject to the fulfillment of the
following conditions:
REPRESENTATIONS AND WARRANTIES. The representations and warranties of
Colonial Direct and Merger Subsidiary contained in this Agreement shall be true
and correct on the date hereof and (except to the extent such representations
and warranties speak as of a date earlier than the date hereof) shall also be
true and correct on and as of the Closing Date, except for changes contemplated
by this Agreement, with the same force and effect as if made on and as of the
Closing Date, provided, however, that for purposes of this Section 7.3 only,
such representations and warranties shall be deemed to be true and correct
unless the failure or failures of such representations and warranties to be so
true and correct (without regard to materiality qualifiers contained therein),
individually or in the aggregate, results or would reasonably be expected to
result in a Material Adverse Effect on Colonial Direct, Merger Subsidiary, VIH
or First Level (only after including its ownership of Merger Subsidiary);
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ARTICLE VIII
TERMINATION, AMENDMENT AND WAIVER
Section 8.1 TERMINATION.
This Agreement may be terminated at any time before the Effective Time,
in each case as authorized by the respective Boards of Directors of the Parties:
(a) By mutual written consent of each of xXxxxxxx.xxx, Inc., Colonial
Direct, Merger Subsidiary, VIH and First Level;
(b) By either Merger Subsidiary or First Level if the Merger shall not
have been consummated on or before June 1, 2001 (the "Initial Termination Date"
and as such may be extended pursuant to this paragraph, the "Termination Date"),
provided, however, that if the NASD has not approved this transaction by the
Termination Date, then the Termination Date shall be extended to July 1, 2001,
(the "Extended Termination Date"); or
(d) (i) by Colonial Direct or Merger Subsidiary, if VIH or First Level
shall have breached or failed to perform in any material respect any of its
representations, warranties, covenants or other agreements contained in this
Agreement, which breach or failure to perform is incapable of being cured by VIH
or First Level prior to the Termination Date; (ii) by First Level, if Colonial
Direct or Merger Subsidiary shall have breached or failed to perform in any
material respect any of its representations, warranties, covenants or other
agreements contained in this Agreement, which breach or failure to perform is
incapable of being cured by Colonial Direct or Merger Subsidiary prior to the
Termination Date.
Section 8.2 EFFECT OF TERMINATION.
In the event of termination of this Agreement as provided in Section
8.1 hereof, and subject to the provisions of Section 9.1 hereof, this Agreement
shall forthwith become void and there shall be no liability on the part of any
of the Parties.
Section 8.3 AMENDMENT. This Agreement may be amended by the Parties pursuant to
a writing adopted by action taken by all of the Parties at any time before the
Effective Time. This Agreement may not be amended except by an instrument in
writing signed by the Parties.
Section 8.4 WAIVER. At any time before the Effective Time, any Party may (a)
extend the time for the performance of any of the obligations or other acts of
the other Parties, (b) waive any inaccuracies in the representations and
warranties contained herein or in any document delivered pursuant hereto and (c)
waive compliance with any of the agreements or conditions contained herein. Any
agreement on the part of a Party to any such extension or waiver shall be valid
only as against such Party and only if set forth in an instrument in writing
signed by such Party.
ARTICLE IX
GENERAL PROVISIONS
Section 9.1 NON-SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS. The
representations, warranties and agreements in this Agreement shall terminate at
the Effective Time or upon the termination of this Agreement pursuant to Section
8.1 hereof, as the case may be, except that (a) the agreements set forth in
Article I and Sections 2.2, 2.4, 2.6, 2.7, 2.8, 2.11, and 2.12 shall survive the
Effective Time indefinitely, (b) nothing contained herein shall limit any
covenant or Agreement of the Parties which by its terms contemplates performance
after the Effective Time.
Section 9.2 NOTICES. All notices and other communications given or made pursuant
hereto shall be in writing and shall be deemed to have been duly given or made
as of the date of receipt and shall be
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delivered personally or mailed by registered or certified mail (postage prepaid,
return receipt requested), sent by overnight courier or sent by telecopy, to the
Parties.
Section 9.3 EXPENSES. Except as otherwise provided in this Agreement, all costs
and expenses incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the Party incurring such costs and
expenses.
Section 9.4 CERTAIN DEFINITIONS. For purposes of this Agreement, the following
terms shall have the following meanings:
(a) "Acquisition Proposal" shall mean any inquiry, proposal or offer
from any Person (other than xXxxxxxx.xxx, Inc., Colonial Direct, First Level,
VIH, and Merger Subsidiary or any of their affiliates) relating to any merger,
consolidation, recapitalization, liquidation or other direct or indirect
business combination, involving any of the Parties or any of their respective
Subsidiaries or the issuance or acquisition of shares of capital stock or other
equity securities of any of the Parties or any of their respective Subsidiaries
representing 19.9% or more of the outstanding capital stock of such Party or
Subsidiary, as the case may be, or any tender or exchange offer that if
consummated would result in any Person, together with all affiliates thereof,
(other than xXxxxxxx.xxx, Inc., Colonial Direct, First Level, VIH, Merger
Subsidiary or any of their affiliates) beneficially owning shares of capital
stock or other equity securities of any of the Parties or any of their
respective Subsidiaries representing 19.9% or more of the outstanding capital
stock of such Party, as the case may be, or the sale, lease exchange, license
(whether exclusive or not), or other disposition of any significant portion of
the Intellectual Property rights, or any significant portion of the business or
other assets of any Party, or any other transaction, the consummation of which
could reasonably be expected to impede, interfere with, prevent or materially
delay the consummation of the transactions contemplated hereby or which would
reasonably be expected to diminish significantly the benefits to any of the
Parties of the transactions contemplated hereby.
(b) "Actions" means any claim, action, suit, charge, complaint,
arbitration, proceeding or announced investigation by or before any Governmental
Authority.
(c) "affiliate" of a person means a person that directly or indirectly,
through one or more intermediaries, controls, is controlled by, or is under
common control with, the first mentioned person.
(d) "Blue Sky Laws" means the state securities laws.
(e) "Commercially reasonable efforts" shall mean those efforts
necessary or advisable to advance the interests of the Parties in achieving the
purposes and specific requirements and satisfying the conditions of this
Agreement, provided that such efforts will not require or include either expense
or conduct not ordinarily incurred or engaged in by Parties seeking to implement
agreements of this type unless part of a separate mutual understanding of the
Parties not contained in this Agreement whether reached before or after the
Agreement is executed.
(f) "Control" (including the terms "controlled by" and "under common
control with") means the possession, direct or indirect, of the power to direct
or cause the direction of the management and policies of a person, whether
through the ownership of stock, as trustee or executor, by contract or credit
arrangement or otherwise.
(g) "Encumbrance" means any security interest granted in assets located
in the United States or similar security right granted outside of the United
States, pledge, mortgage, lien (including, without limitation, environmental and
tax liens), encumbrance, adverse claim, preferential arrangement or restriction
of any kind, including, without limitation, any restriction on the use, voting,
transfer, receipt of income or other exercise of any attributes of ownership.
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(h) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(i) "Governmental Authority" means any federal, state, local or foreign
government, any court, administrative, regulatory or other governmental agency,
commission or authority or any non-governmental U.S. or foreign self- regulatory
agency, commission or authority or any arbitral tribunal.
(j) "Law" means any federal, state, local or foreign statute, act, law,
ordinance, regulation, rule, code, order, decree, judgment, policy, other
requirement or rule of law.
(k) "Material Adverse Effect" means any change in or effect on the
business of the referenced corporation or any of its Subsidiaries that is or
will be materially adverse to the business, operations (including the income
statement), properties (including intangible properties), condition (financial
or otherwise), assets, liabilities or regulatory status of such referenced
corporation and its Subsidiaries taken as a whole, but shall not include the
effects of changes that are generally applicable in (A) the United States
economy or (B) the United States securities markets if, in any of (A) or (B),
the effect on Colonial Direct, Merger Subsidiary, VIH or First Level, determined
without including its ownership of Merger Subsidiary (as the case may be) taken
as a whole, is not materially disproportionate relative to the effect on the
other, taken as a whole. All references to Material Adverse Effect on VIH and
First Level contained in Article III, IV, VI or VII of this Agreement shall be
deemed to refer solely to VIH and First Level without including its ownership of
Merger Subsidiary after the Merger.
(l) "Permits" permits, franchises, licenses, authorizations,
certificates, variances, exemptions, orders, registrations or consents that are
granted by any Governmental Authority (including any stock exchange or other
self-regulatory body).
(m) "Person" means an individual, corporation, partnership,
association, trust, estate, limited liability company, labor union,
unincorporated organization, entity or group (as defined in the Exchange Act).
(n) "SEC" means the United States Securities and Exchange Commission.
(o) "Securities Act" means the Securities Act of 1933, as amended.
(p) "Superior Proposal" means any BONA FIDE Acquisition Proposal to
effect a merger, consolidation or sale of all or substantially all of the assets
or capital stock of any of Colonial Direct, VIH, First Level or Merger
Subsidiary which is on terms which the Board of Directors of such Party
determine by a majority vote of its directors in their good faith judgment
(based on the written opinion, with only customary qualifications, of a
financial advisor of nationally recognized reputation that the consideration
provided in such Acquisition Proposal likely exceeds the value of the
consideration provided for in the Merger), after taking into account all
relevant factors, including any conditions to such Acquisition Proposal, the
timing of the closing thereof, the risk of non-consummation, the ability of the
person making the Acquisition Proposal to finance the transaction contemplated
thereby and any required governmental or other consents, filings and approvals,
to be more favorable to the shareholders of such Party than the Merger (or any
revised proposal made by the other Party).
(q) "Tax" or "Taxes" shall mean taxes and governmental impositions of
any kind in the nature of (or similar to) taxes, payable to any federal, state,
local or foreign taxing authority, including but not limited to those on or
measured by or referred to as income, franchise, profits, gross receipts,
capital ad valorem, custom duties, alternative or add-on minimum taxes,
estimated, environmental, disability, registration, value added, sales, use,
service, real or personal property, capital stock, license, payroll,
withholding, employment, social security, workers' compensation, unemployment
compensation, utility, severance, production, excise, stamp, occupation,
premiums, windfall profits, transfer and gains taxes, and interest, penalties
and additions to tax imposed with respect thereto; and "Tax Returns" shall mean
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returns, reports and information statements, including any schedule or
attachment thereto, with respect to Taxes required to be filed with the Internal
Revenue Service or any other governmental or taxing authority or agency,
domestic or foreign, including consolidated, combined and unitary tax returns.
Section 9.5 HEADINGS. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
Section 9.6 SEVERABILITY. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of Law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner adverse to
any Party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the Parties shall negotiate in good
faith to modify this Agreement so as to effect the original intent of the
Parties as closely as possible in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the maximum extent possible.
Section 9.7 ENTIRE AGREEMENT; NO THIRD-PARTY BENEFICIARIES. This Agreement
constitutes the entire agreement and, except as expressly set forth herein,
supersedes any and all other prior agreements and undertakings, both written and
oral, among the Parties, or any of them, with respect to the subject matter
hereof and, except for Section 6.6 (Post-Merger First Level Board of Directors),
is not intended to confer upon any person other than xXxxxxxx.xxx, Inc.,
Colonial Direct, Merger Subsidiary, VIH and First Level, after the Effective
Time, their respective shareholders, any rights or remedies hereunder.
Section 9.8 ASSIGNMENT. This Agreement shall not be assigned by operation of Law
or otherwise.
Section 9.9 GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the Laws of the State of Florida applicable to contracts
executed in and to be performed entirely within that State, without regard to
the conflicts of laws provisions thereof; provided that the Merger shall be
governed by the Laws of the State of Florida applicable to contracts executed in
and to be performed entirely within that State, without regard to the conflicts
of laws provisions thereof.
Section 9.10 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, and by the different Parties in separate counterparts, each of
which when executed shall be deemed to be an original, but all of which shall
constitute one and the same Agreement.
Section 9.11 INTERPRETATION.
(a) Whenever the words "include", "includes" or "including" are used in
this Agreement they shall be deemed to be followed by the words "without
limitation."
(b) Words denoting any gender shall include all genders. Where a word
or phrase is defined herein, each of its other grammatical forms shall have a
corresponding meaning. The plural shall include the singular, and vice versa.
(c) A reference to any party to this Agreement or any other agreement
or document shall include such party's successors and permitted assigns.
(d) A reference to any legislation or to any provision of any
legislation shall include any modification or re-enactment thereof, any
legislative provision substituted therefor and all regulations and statutory
instruments issued thereunder or pursuant thereto.
(e) All references to "$" and dollars shall be deemed to refer to
United States currency unless otherwise specifically provided.
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In Witness Whereof, xXxxxxxx.xxx, Inc., Colonial Direct, Merger Subsidiary, VIH
and First Level have caused this Agreement to be executed as of the date first
written above by their respective officers thereunto duly authorized.
COLONIAL DIRECT FINANCIAL GROUP, INC. FIRST LEVEL CAPITAL, INC.
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxx Xxxxxx
----------------------------------- ---------------------------------
Name: Xxxxxxx X. Xxxxxxx Name: Xxxx Xxxxxx
Title: Director and President Title: Chairman and President
VFINANCE INVESTMENTS, INC. VFINANCE INVESTMENTS HOLDINGS, INC.
By: /s/ Xxxxxxx Xxxxxxxxxx By: /s/ Xxxxxxx Xxxxxxx
----------------------------------- ---------------------------------
Name: Xxxxxxx Xxxxxxxxxx Name: Xxxxxxx Xxxxxxx
Title: Director and COO Title: Director and President
XXXXXXXX.XXX, INC.
By: /s/ Xxxxxxx Xxxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Chairman and COO
Draft April 30, 2001
