EXHIBIT 2.6
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
IXL MERGER CORP.,
IXL HOLDINGS, INC.,
CONSUMER FINANCIAL NETWORK, INC.
XXXXXXX, XXXXX & XXXXX, LLC
XXXXX X. XXXXX,
XXXXXXX X. XXXXX
AND
XXXXX X. XXXXXXX
DATED AS OF DECEMBER 13, 1996
EXHIBITS
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Sub's Closing Certificate............................................. Exhibit A
CFN's Closing Certificate............................................. Exhibit B
Merger Certificates................................................... Exhibit C
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SCHEDULES
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Certificate of Incorporation of Surviving Corporation.............................. Schedule 3.1
Articles of Incorporation and Bylaws of CFN........................................ Schedule 5.1(a)
Articles of Organization and Operating Agreement of MRS............................ Schedule 5.1(b)
Absence of Conflicting Agreements.................................................. Schedule 5.4
Title to CFN Assets................................................................ Schedule 5.6
The Contracts...................................................................... Schedule 5.7(a)
Exceptions to Contracts............................................................ Schedule 5.7(b)
Intangible Property................................................................ Schedule 5.8(a)
Exceptions to Intangible Property.................................................. Schedule 5.8(b)
No Litigation; Labor Disputes; Compliance with Laws................................ Schedule 5.9
Insurance.......................................................................... Schedule 5.11
Employees.......................................................................... Schedule 5.13
Conflicting Agreements............................................................. Schedule 6.3
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AGREEMENT AND PLAN OF MERGER
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THIS AGREEMENT AND PLAN OF MERGER is entered into this 13th day of
December, 1996, by and between CONSUMER FINANCIAL NETWORK, INC., a Georgia
corporation ("CFN"); XXXXXXX, XXXXX & XXXXX, LLC, a Georgia limited liability
partnership ("MRS"); XXXXX X. XXXXX ("Xxxxx"); XXXXXXX X. XXXXX ("Xxxxx"); XXXXX
X. XXXXXXX ("Xxxxxxx"); IXL HOLDINGS, INC., a Delaware corporation ("Parent");
and IXL MERGER CORP., a Delaware corporation, or its successors or assigns
("Sub").
R E C I T A L S:
- - - - - - - -
A. CFN is engaged in the business of Internet-based insurance brokerage.
B. 100% of the outstanding capital stock of CFN is owned by MRS.
C. 100% of the outstanding membership interests in MRS are owned by Xxxxx,
Xxxxx and Xxxxxxx.
D. CFN and Sub each desire to merge their respective companies and
business operations, all on the terms and subject to the conditions set forth
herein.
E. The respective Boards of Directors of Parent, Sub and CFN deem it
advisable and in the best interests of their respective corporations and
respective stockholders that Sub and CFN merge with each other pursuant to the
Georgia Business Corporation Code and the Delaware General Corporation Law, with
Sub as the surviving corporation, as set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants, benefits,
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
DEFINITIONS
1.1 DEFINITIONS. When used in this Agreement, the following terms shall
have the meanings specified:
"AGREEMENT" shall mean this Agreement and Plan of Merger, together with the
Schedules and the Exhibits attached hereto, as the same shall be amended from
time to time in accordance with the terms hereof;
"AMENDMENT TO STOCKHOLDERS AGREEMENT" shall mean the First Amendment to
Stockholders Agreement dated of even date herewith among the stockholders of
Parent.
"BUSINESS" shall mean the business operations of CFN;
"CFN GROUP" shall mean CFN, the CFN Shareholder, Xxxxxxx, Xxxxx and
Xxxxx;
"CFN SHAREHOLDER" shall mean MRS;
"CFN ASSETS" shall mean the right, title and interest of CFN in and to
all assets used in the Business;
"CFN STOCK" shall mean one thousand eight hundred seventy six (1,876)
shares of the no par value common capital stock of CFN;
"CFN'S CLOSING CERTIFICATE" shall mean the certificate delivered by
CFN to Sub at the Closing, in the form of Exhibit B attached hereto;
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"CLOSING" shall mean the conference to be held at 10:00 a.m., Atlanta,
Georgia time on the Closing Date at the offices of Xxxxxx & Xxxxxx, P.C.,
One Buckhead Plaza, 0000 Xxxxxxxxx Xxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx
00000, or at such other time and place as the parties may mutually agree to
in writing, at which the transactions contemplated by this Agreement shall
be consummated;
"CLOSING DATE" shall mean the date hereof;
"COPYRIGHTS" shall mean all copyrights and copyright applications
owned by CFN or related to the Business;
"EFFECTIVE TIME" shall have the meaning set forth in Section 1.3
hereof;
"INTANGIBLE PROPERTY" shall mean (a) the Copyrights, (b) the
Trademarks, (c) the Trade Secrets, and (d) all goodwill associated
therewith;
"KNOWLEDGE OF CFN" shall mean the actual knowledge of Xxxxxx Xxxxxxx,
or the knowledge he would have possessed upon reasonable investigation of
the affairs and operations of the Business;
"LIEN" shall mean any mortgage, deed of trust, pledge, hypothecation,
security interest, encumbrance, claim, lien, lease (including any
capitalized lease) or charge of any kind, whether voluntarily incurred or
arising by operation of law or otherwise, affecting any assets or property
of CFN or the Business, and any agreement to give or grant any of the
foregoing;
"MERGER" shall mean the merger between CFN and Sub as contemplated by
this Agreement;
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"MERGER CERTIFICATES" shall mean the Certificates of Merger, in the
form of Exhibit A attached hereto, to be dated of even date herewith, filed
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with the Secretary of State of Delaware and the Secretary of State of
Georgia;
"PARENT" shall mean IXL Holdings, Inc., a Delaware corporation;
"PARENT STOCK" shall mean Five Hundred (500) shares of the Class B
Common Stock, $.01 par value per share, of Parent;
"PERSON" shall mean any natural person, general or limited
partnership, corporation, limited liability company, firm, association or
other legal entity;
"STOCKHOLDERS AGREEMENT" shall mean the Stockholders Agreement, dated
April 30, 1996, as amended by and among Parent and the other parties
thereto;
"SUB'S CLOSING CERTIFICATE" shall mean the certificate delivered by
Sub to CFN at Closing, in the form of Exhibit C attached hereto;
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"SURVIVING CORPORATION" shall have the meaning set forth in Section
2.1 hereof.
"TRADE SECRETS" shall mean all proprietary information of the CFN
relating to the Business;
"TRADEMARKS" shall mean all of those trade names, trademarks, service
marks, logos, trademark and service xxxx registrations and trademark and
service xxxx applications owned, used, held for use, licensed by or leased
by CFN relating to the Business;
1.2 SINGULAR/PLURAL; GENDER. Where the context so requires or
permits, the use of the singular form includes the plural, and the use of
the plural form includes the singular, and the use of any gender includes
any and all genders.
ARTICLE II
THE MERGER
2.1 THE MERGER. Upon the terms and subject to the conditions hereof,
at the Effective Time, CFN shall be merged with and into Sub, and the
separate existence of CFN shall thereupon cease, and Sub shall continue as
the surviving corporation in the Merger under the laws of the State of
Delaware under the name set forth in the Certificate of Incorporation of
Sub. For purposes of this Agreement, Sub shall be referred to, for the
period commencing on the Effective Time, as the "Surviving Corporation".
2.2 EFFECTIVE TIME OF THE MERGER. The Merger shall become effective
upon the filing of the respective Merger Certificates with the Secretary of
State of Delaware and the Secretary of State of Georgia, in accordance with
the provisions of the Delaware General Corporation Law
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(the "DGCL") and the Georgia Business Corporation Code ("GBCC"), or at such
other time as Sub and CFN shall agree should be specified in the
Certificate of Merger. When used in this Agreement, the term "Effective
Time" shall mean the time at which the Merger Certificate is accepted for
filing by the Secretary of State of Delaware and Secretary of State of
Georgia or such time as otherwise specified in the Merger Certificates.
2.3 EFFECT OF THE MERGER. The Merger shall, from and after the
Effective Time, have all the effects provided by the DGCL and GBCC. If at
any time after the Effective Time, any further action is deemed necessary
or desirable to carry out the purposes of this Agreement, the parties
hereto agree that the Surviving Corporation and its proper officers and
directors shall be authorized to take, and shall take, any and all such
action.
ARTICLE III
THE SURVIVING CORPORATION
3.1 CERTIFICATE OF INCORPORATION. The Certificate of Incorporation
of the Sub, a copy of which is attached hereto as Schedule 3.1, shall be
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the Certificate of Incorporation of the Surviving Corporation after the
Effective Time, until thereafter changed or amended as provided therein or
by applicable law.
3.2 BYLAWS. The Bylaws of the Sub as in effect immediately prior to
the Effective Time shall be the Bylaws of the Surviving Corporation, until
thereafter changed or amended as provided therein or by applicable law.
3.3 BOARD OF DIRECTORS; OFFICERS. The Board of Directors and
officers of the Sub immediately prior to the Effective Time shall be the
Board of Directors and officers, respectively, of the Surviving
Corporation, until the earlier of their respective resignations or the time
that their respective successors are duly elected or appointed and
qualified.
ARTICLE IV
CONVERSION OF SHARES
4.1 MERGER CONSIDERATION. As of the Effective Time, by virtue of the
Merger and without any action on the part of any stockholder of CFN or Sub:
(a) All shares of CFN Stock held by CFN shall be canceled and
retired and shall cease to exist, and no consideration shall be delivered
in exchange therefor;
(b) Each issued and outstanding share of CFN Stock (other than
any Dissenting Shares, as defined in Section 4.2) shall be canceled and
retired and shall cease to exist;
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(c) The CFN Shareholder shall receive .267 shares of the Class
B Common Stock of Parent for each share of CFN Stock owned by the CFN
Shareholder and canceled pursuant to Section 4.1(b); and
(d) Each issued and outstanding share of common stock of Sub
shall be converted into and become one fully paid and nonassessable share
of common stock of the Surviving Corporation.
4.2 DISSENTING SHARES. Notwithstanding anything in this Agreement to
the contrary, no issued and outstanding share of CFN Stock held by a
stockholder of CFN who objects to the Merger and complies with all of the
provisions of the DGCL and GBCC concerning the right of holders of CFN
Stock to dissent from the Merger and require appraisal of his shares of CFN
Stock ("Dissenting Stockholders") shall be canceled as described in Section
4.1(b), but shall instead become the right to receive such consideration as
may be determined to be due to such Dissenting Stockholder pursuant to the
DGCL and GBCC; provided, however, that each share of CFN Stock issued and
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outstanding immediately prior to the Effective Time of the Merger and held
by a Dissenting Stockholder ("Dissenting Shares") who shall, after the
Effective Time of the Merger, withdraw his demand for appraisal or lose his
right of appraisal, in either case pursuant to the DGCL and GBCC, shall be
deemed to be canceled as of the Effective Time of the Merger, and such CFN
shareholder shall receive such shares of Parent Stock, all as set forth in
Section 4.1 hereof. CFN shall give Parent prompt notice of any written
demands for appraisal of shares of CFN Stock, and the opportunity to direct
all negotiations and proceedings with respect to any such demands. CFN
shall not, without the prior written consent of Parent, voluntarily make
any payment with respect to, or settle, or offer to settle or otherwise
negotiate, any such demands.
4.3 NO FURTHER RIGHTS. From and after the Effective Time, holders of
certificates theretofore evidencing CFN Stock shall cease to have any
rights as stockholders of CFN, except as provided herein or by law.
4.4 CLOSING OF THE CFN'S TRANSFER BOOKS. At the Effective Time, the
stock transfer books of CFN shall be closed and no transfer of CFN Stock
shall be made thereafter. If after the Effective Time, certificates for CFN
Stock are presented to Parent or the Surviving Corporation, they shall be
canceled and exchanged for an amount of Parent Stock as set forth in
Section 4.1 hereof, subject to applicable law in the case of Dissenting
Shares.
4.5 CLOSING DATE DELIVERIES. On the Closing Date:
(a) CFN shall deliver, or cause to be delivered to Parent,
properly executed and dated as of the Closing Date (i) the Merger
Certificates, (ii) CFN's Closing Certificate, (iii) the Amendment to
Stockholders Agreement, and (iv) such other documents as Parent or Sub may
reasonably request.
(b) Sub shall deliver, or cause to be delivered to CFN,
properly executed and dated as of the Closing Date (i) the Merger
Certificates, (ii) Sub's Closing Certificate, and (iii) such other
documents as CFN may reasonably request.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES OF CFN
Subject to the limitations provided in Sections 8.8(a) and (b) hereof,
each of CFN, the CFN Shareholder, Xxxxxxx, Xxxxx and Xxxxx, as applicable,
represent and warrant to Sub (which representations and warranties shall
survive the Closing for a period of six (6) months), as follows:
5.1 ORGANIZATION.
(a) CFN is a corporation duly organized, validly existing and in
good standing under the laws of the State of Georgia, and is qualified to
do business as a foreign corporation in all jurisdictions where such
qualification is required for the operation of the Business. CFN has the
power and authority to own, lease and operate its properties and to carry
on the Business in the places where such properties are now owned, leased
or operated as the Business is now conducted. Complete and correct copies
of the Articles of Incorporation and Bylaws of CFN as in effect on the date
hereof are attached as Schedule 5.1(a) hereto.
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(b) MRS is a limited liability company duly organized, validly
existing and in good standing under the laws of the State of Georgia, and
is qualified to do business as a foreign limited liability company in all
jurisdictions where such qualification is required for the operation of its
business. MRS has the power and authority to own, lease and operate its
properties and to carry on its business in the places where such properties
are now owned, leased or operated as its business is now conducted.
Complete and correct copies of the Articles of Organization and Operating
Agreement of MRS as in effect on the date hereof are attached as Schedule
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5.1(b) hereto.
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5.2 CAPITALIZATION. The authorized capital stock of CFN consists of
Five Thousand (5,000) shares of common capital stock, no par value, and
Five Thousand (5,000) shares of preferred stock. As of the date hereof, (i)
1,876 shares of CFN Stock are validly issued and outstanding, fully paid
and nonassessable; (ii) all of the previously outstanding preferred stock
of CFN has been properly redeemed and canceled; (iii) there are no bonds,
debentures, notes or other indebtedness issued or outstanding having
general voting rights under ordinary circumstances; and (iv) except as
contemplated by this Agreement, there are no options, warrants, calls or
other rights, agreements or commitments presently outstanding obligating
CFN to issue, deliver or sell shares of its capital stock, or obligating
CFN to grant, extend or enter into any such option, warrant, call or other
such right, agreement or commitment.
5.3 AUTHORIZATION; ENFORCEABILITY. CFN has the necessary corporate
power and authority to execute and deliver this Agreement and to consummate
the transactions contemplated hereby. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby by
CFN have been duly and validly authorized and approved by CFN's Board of
Directors and the holders of the required percentage of CFN Stock and no
other corporate or stockholder proceedings on the part of CFN necessary to
authorize or approve this
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Agreement or to consummate the transactions contemplated hereby. This
Agreement has been duly executed and delivered by each member of the CFN
Group and constitutes the valid and binding obligation of the members of
the CFN Group, enforceable against each member of the CFN Group in
accordance with its terms except as such enforceability may be limited by
general principles of equity or principles applicable to creditors rights
generally.
5.4 ABSENCE OF CONFLICTING AGREEMENTS. Except as set forth on Schedule
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5.4 hereto, neither the execution, delivery or performance of this
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Agreement by CFN, nor the consummation of the Merger or any other
transaction contemplated by this Agreement, does or will, after the giving
of notice, or the lapse of time or both, or otherwise:
(a) conflict with, result in a breach of, or constitute a
default under the Articles of Incorporation and Bylaws of CFN, or any
federal, state or local law, statute, ordinance, rule or regulation
applicable to CFN, or any court or administrative order or process, or any
Contract or other material agreement, arrangement, commitment or plan to
which CFN is a party or by which CFN is bound, and which relates to the
ownership or operation of the Business or the CFN Assets;
(b) result in the creation of any Lien upon any of the CFN
Assets;
(c) terminate, amend or modify, or give any party the right to
terminate, amend, modify, abandon or refuse to perform any material
agreement to which CFN is a party or bound or to which the Business or the
CFN Assets are bound or subject;
(d) require the consent, waiver, approval, permit, license,
clearance or authorization of, or any declaration or filing with, any court
or governmental or public agency or other authority; or
(e) require the consent of any Person under any material
agreement to which CFN is a party or bound or to which the Business or the
CFN Assets are bound or subject.
5.5 CFN ASSETS. The CFN Assets include all of the assets, properties
and rights of every type and description that are necessary for or used in
the conduct of the Business of CFN in the manner in which the Business has
been and is now conducted.
5.6 TITLE TO CFN ASSETS. Except as set forth on Schedule 5.6 hereto,
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CFN owns good and marketable title to, or has valid leasehold interests in,
all of the respective CFN Assets, free and clear of any and all Liens,
other than liens for taxes not yet due and payable.
5.7 THE CONTRACTS. Schedule 5.7(a) hereto contains a list of all of
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the agreements relating to the Business that involve average annual
payments or receipts by CFN of greater than One Thousand Dollars ($1,000)
(the "Contracts"). Except as set forth on Schedule 5.7(b) hereto;
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(a) no event has occurred under any of the Contracts that would
constitute a default thereunder or that, with notice or the lapse of time
or both, would constitute such a default on the part of CFN or, to the
Knowledge of CFN, on the part of any other party thereto;
(b) each of the Contracts is in full force and effect, and
constitutes the legal and binding obligation of, and is legally enforceable
against CFN, and to the Knowledge of CFN, against each other party thereto
in accordance with its terms;
(c) CFN has furnished to Parent true and complete copies of all
Contracts, including all amendments, modifications and supplements thereto,
and Schedule 5.7(a) hereto contains summaries of the provisions of all oral
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contracts;
(d) all right, title and interest in and to the Contracts is
fully assignable to Sub without the consent, approval or waiver of any
other Person.
5.8 INTANGIBLE PROPERTY. Schedule 5.8(a) hereto contains a complete
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and accurate list of all Intangible Property used in the Business. Except
as set forth on Schedule 5.8(b) hereto:
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(a) there are no claims, demands or proceedings instituted,
pending or, to the Knowledge of CFN, threatened by any third party
pertaining to or challenging CFN's right to use any of the Intangible
Property;
(b) there are no royalty or licensing agreements relating to any
of the Intangible Property;
(c) the Intangible Property constitutes all Copyrights,
Trademarks, Trade Secrets and rights in and to the operating/business names
necessary or appropriate for or used in the operation of the Business; and
(d) all Copyrights and Trademarks included in the Intangible
Property are transferable to Sub by the sole act of CFN.
5.9 NO LITIGATION; LABOR DISPUTES; COMPLIANCE WITH LAWS. Except as
set forth on Schedule 5.9 hereto:
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(a) There is no decree, judgment, order, litigation at law or in
equity, arbitration proceeding or proceeding before or by any commission,
agency or other administrative or regulatory body or authority pending or,
to the Knowledge of CFN, threatened, to which CFN is a party or to which
CFN or the CFN Assets are subject which would have a material adverse
effect on the Business or the CFN Assets. There is no investigation by any
commission, agency or other administrative or regulatory body or authority
pending or, to the Knowledge of CFN, threatened, which is specifically
concerned with CFN, the Business or the CFN Assets.
(b) The Business is not subject to or bound by any labor
agreement or collective bargaining agreement, there is no labor dispute,
grievance, controversy, strike or request
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for union representation pending or to the Knowledge of CFN threatened
against CFN relating to or affecting the Business, and no events have
occurred that would give rise to any such labor dispute, controversy,
strike or request for representation.
(c) CFN owns and operates, and has owned and operated, its
properties and assets, and carries on and conducts, and has carried on and
conducted, the Business, in compliance with all material federal, foreign,
state and local laws, statutes, ordinances, rules and regulations, and all
court or administrative orders or processes.
5.10 TAXES. CFN has duly filed all federal, state and local income,
franchise, excise, real and personal property and other tax returns and
reports, including extensions (including, but not limited to, those filed
on a consolidated, combined or unitary basis), required to have been filed
by CFN prior to the date hereof, and has timely paid all amounts shown
thereon to be due and payable. As of the date hereof, all deficiencies
proposed as a result of any audits have been paid or settled.
5.11 INSURANCE. CFN has in full force and effect the liability and
casualty insurance insuring the Business and the CFN Assets attached hereto
as Schedule 5.11. CFN is not in default with respect to such insurance
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policies, and CFN has not failed to give any notice or present any claim
under any policies in due and timely fashion.
5.12 BROKERS. Neither this Agreement nor the Merger or any other
transaction contemplated by this Agreement was induced or procured through
any Person acting on behalf of or representing CFN as broker, finder,
investment banker, financial advisor or in any similar capacity.
5.13 EMPLOYEES. Schedule 5.13 hereto is a true and complete list
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showing the names and current annual salary rates of all employees,
consultants and independent contractors of CFN. There are no employment
agreements between CFN and their respective employees or professional
service agreements not terminable at will relating to the Business. The
consummation of the transactions contemplated under this Agreement will not
cause Sub or Parent to incur or suffer any liability relating to, or
obligation to pay, severance, termination, or other payments to any Person
or entity.
5.14 EMPLOYEE BENEFIT PLANS. CFN has not at any time maintained or
been a party to or made contributions to any Employee Benefit Plan.
5.15 ACCREDITED INVESTORS; INVESTMENT PURPOSE. Each of Xxxxxxx,
Xxxxx and Xxxxx represents that he 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"). Each of the CFN Shareholder, and Xxxxxxx, Xxxxx and
Xxxxx, through their respective ownership interests in the CFN Shareholder,
is acquiring the Parent Stock solely for his or its own account for
investment and not with a view to, or for sale in connection with, any
distribution thereof, whether directly or indirectly. Each of the CFN
Shareholder and Xxxxxxx, Xxxxx and Xxxxx agrees that none of them will,
directly or indirectly, offer, transfer, sell,
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pledge, hypothecate or otherwise dispose of any Parent Stock (or solicit
any offers to buy, purchase or other 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 Stockholders' Agreement.
5.16 RESTRICTIONS ON TRANSFER. The CFN Shareholder and each of
Xxxxxxx, Xxxxx and Xxxxx acknowledge that (i) the shares of Parent Stock
received by the CFN Shareholder hereunder have not been registered under
the Act, (ii) such shares may be required to be held indefinitely, and the
CFN Shareholder 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, (iii)
there may not be any public market for such shares in the foreseeable
future, (iv) Rule 144 promulgated under the Securities Act is not presently
available with respect to sales of any securities of Parent and Parent has
made no covenants to make such Rule available and such Rule is not
anticipated to be available in the foreseeable future, (v) when and if such
shares 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, (vi) if the exemption afforded by
Rule 144 is not available, public sale without registration will require
the availability of an exemption under the Securities Act, (vii)
restrictive legends shall be placed on the certificates representing such
shares, and (viii) a notation shall be made in the appropriate records of
CFN indicating that such shares are subject to restrictions on transfer
and, if CFN should in the future engage the services of a stock transfer
agent, appropriate stop-transfer instructions will be issued to such
transfer agent with respect to such shares.
5.17 ABILITY TO BEAR RISK; ACCESS TO INFORMATION; SOPHISTICATION.
Each of the CFN Shareholder, Xxxxxxx, Xxxxx and Xxxxx represents and
warrants that (i) his or its financial situation is such that he or it, as
the case may be, can afford to bear the economic risk of holding the Sub
Stock acquired by him or it (whether directly or indirectly) hereunder for
an indefinite period and (ii) he or it, as the case may be, can afford to
suffer the complete loss of such shares. Each of Xxxxxxx, Xxxxx and Xxxxx
represents and warrants that (x) he has been granted the opportunity to ask
questions of, and receive answers from, representatives of Sub and Parent
concerning the terms and conditions of the Parent Stock hereunder and to
obtain any additional information that he deems necessary, (y) his
knowledge and experience in financial business matters is such that he is
capable of evaluating the merits and risk of ownership of the Stock, and
(z) he has carefully reviewed the terms of the Stockholders' Agreement and
has evaluated the restrictions and obligations contained therein.
5.18 UNDISCLOSED LIABILITIES. Neither CFN nor the Business has any
debt, liability or obligation of any kind, whether accrued, absolute or
otherwise, including, without limitation, any liability or obligation on
account of taxes or any governmental charges or penalty, interest or fines,
except (i) liabilities incurred in the ordinary course of business since
August 31, 1996; and (ii) liabilities incurred in connection with the
transactions contemplated by this Agreement.
5.19 DISCLOSURE. No statement of fact by any member of the CFN Group
contained in this Agreement and no written statement of fact furnished or
to be furnished by any member of
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the CFN Group to Parent or Sub pursuant to or in connection with this
Agreement contains or will contain any untrue statement of a material fact
or omits or will omit to state a material fact necessary in order to make
the statements herein or therein contained not misleading.
5.20 CONDUCT OF THE BUSINESS. Since August 31, 1996, none of Mellett,
Smith, Xxxxx or the CFN Shareholder has taken any action that would (a)
obligate CFN or its assets or properties in any way; (b) result in the
creation of any Lien on any of the assets or properties of CFN; or (c) have
a material adverse effect on the Business or on the overall financial
condition of CFN.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF PARENT AND SUB
Parent and Sub jointly and severally represent and warrant to CFN
(which representations and warranties shall survive the Closing for a
period of six (6) months) as follows:
6.1 ORGANIZATION. Parent is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware. Sub
is a corporation duly incorporated, validly existing and in good standing
under the laws of the State of Delaware. Each of Parent and Sub has the
power and authority to own, lease and operate its properties and to carry
on its business in the places where such properties are now owned, leased
or operated as such business is now conducted.
6.2 AUTHORIZATION; ENFORCEABILITY. The execution, delivery and
performance of this Agreement and all of the documents and instruments
required herein by Parent and Sub and the consummation by Parent and Sub of
the transactions contemplated hereby and thereby, are within the respective
corporate power of Parent and Sub and have been duly authorized by their
respective Boards of Directors, and all other necessary corporate action
has been taken by Parent and Sub. This Agreement is, and the other
documents and instruments required hereby will be, when executed and
delivered by Parent and Sub, the valid and binding obligations of Parent
and Sub, as applicable, enforceable against Parent and Sub in accordance
with their respective terms, subject only to bankruptcy, insolvency,
reorganization, moratoriums or similar laws at the time in effect affecting
the enforceability or right of creditors generally and by general equitable
principles which may limit the right to obtain equitable remedies.
6.3 ABSENCE OF CONFLICTING AGREEMENTS. Except as set forth on
Schedule 6.3, neither the execution, delivery and performance of this
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Agreement by Parent and Sub, nor the consummation of the Merger or any
other transaction contemplated by this Agreement, does or will, after the
giving of notice, or the lapse of time, or otherwise:
(a) conflict with, result in a breach of, or constitute a
default under, the respective Certificate of Incorporation or Bylaws of
Parent or Sub, or any federal, state or local law, statute, ordinance, rule
or regulations applicable to Parent or Sub, or any court or administrative
order or process;
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(b) require the consent, waiver, approval, permit, license,
clearance or authorization of, or any declaration or filing with, any court
or governmental or public agency; or
(c) require the consent of any person under any material
contract, agreement, arrangement or commitment of any nature which Parent
or Sub is a party to or bound by.
6.4 BROKERS. Neither this Agreement nor the Merger or any other
transaction contemplated by this Agreement was induced or procured through
any Person acting on behalf of or representing Parent or Sub as broker,
finder, investment banker, financial advisor or in any similar capacity.
6.5 PARENT STOCK. When delivered to CFN stockholders in accordance
with the terms hereof, the Parent Stock will be fully paid and
nonassessable, and free and clear of all Liens, other than liens for taxes
not yet due and payable.
6.6 REVIEW OF CFN. Without limiting the representations and
warranties of CFN set forth in Article V hereof, Parent and Sub have had
the opportunity to review the manner in which the Business operates,
including documentation with respect thereto, and have satisfied themselves
with such operations.
ARTICLE VII
FURTHER AGREEMENTS
7.1 FURTHER ASSURANCES. From time to time after the Closing Date,
upon the reasonable request of Sub, CFN shall execute and deliver or cause
to be executed and delivered such further instruments and take such further
action as Sub may reasonably request in order more effectively to
consummate fully the Merger and other transactions contemplated herein.
ARTICLE VIII
MISCELLANEOUS
8.1 ENTIRE AGREEMENT; AMENDMENT; AND WAIVERS. This Agreement and the
documents referred to herein and to be delivered pursuant hereto constitute
the entire agreement between the parties pertaining to the subject matter
hereof, and supersede all prior and contemporaneous agreements,
understandings, negotiations and discussions of the parties, whether oral
or written, and there are no warranties, representations or other
agreements between the parties in connection with the subject matter
hereof, except as specifically set forth herein. No amendment, supplement,
modification, waiver or termination of this Agreement shall be binding
unless executed in writing by the party to be bound thereby. No waiver of
any of the provisions of this Agreement shall be deemed or shall constitute
a waiver of any other provision or breach of this Agreement, whether or not
similar, unless otherwise expressly provided.
12
8.2 EXPENSES. Except as otherwise specifically provided herein,
whether or not the transactions contemplated by this Agreement are
consummated, each of the parties hereto shall pay the fees and expenses of
its respective counsel, accountants and other experts incident to the
negotiation and preparation of this Agreement and consummation of the
transactions contemplated hereby.
8.3 BENEFIT; ASSIGNMENT. This Agreement shall be binding upon and
inure to the benefit of and shall be enforceable by Parent, Sub and CFN and
their respective successors and assigns. This Agreement shall not be
assigned by any party without the prior written consent of the other party;
provided, however, that Sub may, without such consent, assign any or all of
-------- -------
its rights and obligations under this Agreement to any corporation,
partnership, limited liability company or joint venture controlled by or
under common control with Sub.
8.4 NOTICES. All communications or notices required or permitted by
this Agreement shall be in writing and shall be deemed to have been given
at the earlier of the date when actually delivered to an officer of the
other party, or when sent by telecopy or facsimile machine to the number
shown below, or when properly deposited for delivery by commercial
overnight delivery service, prepaid, or by deposit in the United States
mail, certified or registered mail, postage prepaid, return receipt
requested, and addressed as follows, unless and until either of such
parties notifies the other in accordance with this Section of a change of
address or change of telecopy number:
If to Parent: IXL Holdings, Inc.
0000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, Executive Vice President
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
With a copy to: XXXXXX & XXXXXX, P.C.
0000 Xxxxxxxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
If to CFN, the
CFN Shareholder: CONSUMER FINANCIAL NETWORK, INC.
0000 Xxxxxx Xxxxx Xx., Xxxxx 000
Attention: Xxxxxx Xxxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
13
If to Xxxxxxx: Xxxxx X. Xxxxxxx
000 Xxxx Xxxxxx Xxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
If to Xxxxx: Xxxxxxx X. Xxxxx
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxx 00000
If to Xxxxx: Xxxxx X. Xxxxx
00000 Xxxxx Xxxxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
8.5 COUNTERPARTS; HEADINGS. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but such
counterparts shall together constitute but one and the same Agreement. The
Article and Section headings in this Agreement are inserted for convenience
of reference only and shall not constitute a part hereof.
8.6 SEVERABILITY. If any provision, clause or part of this Agreement
or the application thereof under certain circumstances is held invalid, or
unenforceable, the remainder of this Agreement, or the application of such
provision, clause or part under other circumstances, shall not be affected
thereby.
8.7 GOVERNING LAW. This Merger Agreement, except to the extent that
the DGCL or GBCC is mandatorily applicable to the Merger and the rights of
the CFN Shareholders, shall be governed in all respects by the laws of the
State of Georgia (without giving effect to the provisions thereof relating
to conflicts of law).
8.8 LIMITATION ON RECOVERY. Any prior provision in this Agreement, or
in any agreement, certificate or other document executed or delivered in
connection with this Agreement or its performance to the contrary
notwithstanding:
(a) Neither CFN, the CFN Shareholder, Xxxxxxx, Xxxxx nor Xxxxx,
nor any two or more of them together, shall be obligated or liable for any
damages resulting from or related to any breach or inaccuracy of any one or
more representations, warranties or covenants, in the total aggregate for
all such breaches, for any amount in excess of $125,000, and recovery for
all such breaches, in the aggregate, shall be limited to $125,000. For
purposes of satisfying any such claims, payment shall be made by delivering
shares of Parent Stock received pursuant to Section 4.1(c) hereof;
provided, however, that for purposes of determining the number of shares of
Parent Stock required to be delivered in satisfaction of any such claim,
the value of such Parent stock shall be deemed to be $250 per share,
regardless of the actual value of such Parent Stock at the time any payment
is required to be made hereunder.
(b) Neither CFN, the CFN Shareholder, Xxxxxxx, Xxxxx nor Xxxxx
shall be obligated or liable in any respect for any damages resulting from
or in any manner related to the
14
operation of the Business subsequent to August 31, 1996, whether or not in
the ordinary course, unless such damages result from, or are otherwise
attributable to, any breach or inaccuracy of the representation set forth
in Section 5.20 hereof, in all respects, subject to Section 8.8(a) above.
IN WITNESS WHEREOF, the parties have executed this Agreement and Plan
of Merger as of the day and year first above written.
IXL MERGER CORP.
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President
IXL HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President
- SIGNATURES CONTINUE ON THE FOLLOWING PAGE -
15
CONSUMER FINANCIAL NETWORK, INC.
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
-------------------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
-----------------------------------
Title: President
----------------------------------
XXXXXXX, XXXXX & XXXXX, LLC
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
----------------------------------------
Xxxxx X. Xxxxx
----------------------------------------
Xxxxxxx X. Xxxxx
----------------------------------------
Xxxxx X. Xxxxxxx
16
CONSUMER FINANCIAL NETWORK, INC.
By: ____________________________________
Name: __________________________________
Title: _________________________________
XXXXXXX, XXXXX & XXXXX, LLC
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: __________________________________
Title: _________________________________
________________________________________
Xxxxx X. Xxxxx
________________________________________
Xxxxxxx X. Xxxxx
/s/ Xxxxx X. Xxxxxxx
----------------------------------------
Xxxxx X. Xxxxxxx
17
CONSUMER FINANCIAL NETWORK, INC.
By: ____________________________________
Name: __________________________________
Title: _________________________________
XXXXXXX, XXXXX & XXXXX, LLC
By: ____________________________________
Name: __________________________________
Title: _________________________________
/s/ Xxxxx X. Xxxxx
----------------------------------------
Xxxxx X. Xxxxx
________________________________________
Xxxxxxx X. Xxxxx
________________________________________
Xxxxx X. Xxxxxxx
18
CONSUMER FINANCIAL NETWORK, INC.
By: ____________________________________
Name: __________________________________
Title: _________________________________
XXXXXXX, XXXXX & XXXXX, LLC
By: ____________________________________
Name: __________________________________
Title: _________________________________
________________________________________
Xxxxx X. Xxxxx
/s/ Xxxxxxx X. Xxxxx
----------------------------------------
Xxxxxxx X. Xxxxx
________________________________________
Xxxxx X. Xxxxxxx
19
EXHIBITS
--------
Merger Certificate ............................................. Exhibit A
CFN's Closing Certificate ...................................... Exhibit B
Sub's Closing Certificate ...................................... Exhibit C
SCHEDULE 3.1
------------
CERTIFICATE OF INCORPORATION OF SURVIVING CORPORATION
SCHEDULE 5.1(A)
---------------
ARTICLES OF INCORPORATION AND BYLAWS OF CFN
SCHEDULE 5.1(B)
---------------
ARTICLES OF ORGANIZATION AND OPERATING AGREEMENT OF MRS
SCHEDULE 5.4
------------
EXCEPTIONS TO ABSENCE OF CONFLICTING AGREEMENTS
SCHEDULE 5.6
------------
EXCEPTIONS TO TITLE TO CFN ASSETS
SCHEDULE 5.7(A)
---------------
CONTRACTS
SCHEDULE 5.7(B)
---------------
EXCEPTIONS TO CONTRACTS
SCHEDULE 5.8(A)
---------------
INTANGIBLE PROPERTY
SCHEDULE 5.8(B)
---------------
EXCEPTIONS TO INTANGIBLE PROPERTY
SCHEDULE 5.9
------------
LITIGATION
SCHEDULE 5.11
-------------
INSURANCE
SCHEDULE 5.13
-------------
EMPLOYEES
SCHEDULE 6.3
------------
CONFLICTING AGREEMENTS
