PLAN AND AGREEMENT OF MERGER
THIS PLAN AND AGREEMENT OF MERGER (this "Agreement") made and entered into
this ___ day of ______________________, 2001, by and between ADZONE INTERACTIVE,
INC., a New York corporation ("AdZone"), and EXECUTIVE HELP SERVICES, INC.,
a Delaware
corporation ("Executive Help");
RECITALS
A. WHEREAS, AdZone is a corporation duly organized and existing
under the laws of the State of New York;
B. WHEREAS, Executive Help is a corporation duly organized and
existing under the laws of the State of Delaware;
C. WHEREAS, ont the date of this Agreement, AdZone has authority to
issue ______ shares of Common Stock, ______ par value (the
"AdZone Common Stock"), of which ______ shares are issued and
outstanding;
D. WHEREAS, on the date of this Agreement, Executive Help has
authority to issue one hundred million (100,000,000) shares of
common stock, $0.001 par value (the "Executive Help Common
Stock"), of which 9,896,000 shares of are issued and outstanding
and 20,000,000 shares of preferred stock, $0.001 par value (the
"Executive Help Preferred Stock"), of which no shares are
outstanding;
E. WHEREAS, the respective Boards of Directors of Executive Help and
AdZone deem it advisable and in the best interests of the
corporations' respective shareholders that AdZone be acquired by
Executive Help through a merger ("Merger") of AdZone and
Executive Help, who shall acquire all of the business, assets and
goodwill, subject to the liabilities, of AdZone and that shares
of AdZone Common Stock shall be converted to shares of Executive
Help Common Stock on the terms and conditions hereinafter set
forth;
NOW, THEREFORE, in consideration of the mutual warranties and covenants set
forth herein, the parties hereto agree as follows:
AGREEMENT
1. Merger of AdZone into Executive Help.
-- -------------------------------------
1.1. Merger of AdZone with and into Executive Help. Executive Help and
AdZone hereby adopt the plan of reorganization encompassed by this Agreement and
hereby agree that AdZone shall merge with and into Executive Help on the terms
and conditions set forth herein. AdZone will, upon the filing of the Certificate
of Merger contemplated by Section 252 of the
1
General Corporation Law of the State of Delaware (the "Effective Date"), merge
with and into Executive Help, and thereafter the separate existence of AdZone
will cease. As of the Effective Date, Executive Help shall succeed to all of the
rights, privileges, powers and property, including, without limitation, all
rights, privileges, franchises, patents, trademarks, licenses, registrations,
bank accounts, contracts, patents, copyrights and other assets of every kind and
description of AdZone, and Executive Help shall assume all of the obligations
and liabilities of AdZone, excepting and excluding, (i) the minute books and
stock records of AdZone insofar as they relate solely to its organization and
capitalization, and (ii) the rights of AdZone arising out of this Agreement. The
Merger will occur in accordance with the General Corporation Law of the State of
Delaware.
1.2. Pending and Subsequent Actions. AdZone will cooperate, and will cause
its officers, directors and other employees to cooperate, with Executive Help on
and after the Effective Date (i) in effecting the collection of all receivables
and other items owing to AdZone and (ii) in prosecuting claims and furnishing
information, testimony and other assistance in connection with all actions,
proceedings, arrangements or disputes based upon contracts, arrangements or acts
of AdZone which were in effect or which occurred on or prior to the Merger.
1.3 Initial Board of Directors of Merged Entity. Upon the closing of this
Agreement (closing shall mean the execution of this Plan and Agreement of
Merger), and for the first thirty-six (36) months thereafter, the board of
directors of the merged entity shall consist of three (3) members designated by
the shareholders of AdZone and two (2) members designated by the shareholders of
Executive Help. The proposed initial directors shall be Xxxxxxx Xxxxxxx, Xxxx
Xxxxxxx, and Xxxxxx Xxxxxxxxx (designated by AdZone's shareholders) and Xxxxxxx
Xxx and Xxxxx Xxxxx (designated by Executive Help's shareholders).
2. Delivery of Executive Help Common Stock and Assumption of Liabilities by
-- --------------------- -------------------------------- -------------- --
Executive Help.
---------------
2.1. Conversion of Stock. Effective as of the Effective Date, each stock
certificate representing shares of AdZone Common Stock, along with any and all
accrued and unpaid dividend rights with respect thereto, shall be deemed to
represent the respective numbers of shares of Executive Help Common Stock, and
each right to purchase shares of AdZone Common Stock (including employee stock
options) shall be deemed to represent a right to purchase the respective number
of shares of Executive Help Common Stock, in each case as is determined by the
formula set forth in Section 2.2.
2.2. Issuance and Delivery of Executive Help Common Stock. Upon surrender
of certificates representing AdZone Common Stock, Executive Help will issue and
deliver as provided in Section 2.3 certificates representing a number of whole
shares of its Common Stock as follows:
a. Executive Help will issue and deliver eighteen million (18,000,000)
shares of its common stock to the current shareholders of AdZone upon
closing of this merger agreement.
2
b. After closing of the merger, the total number of voting shares
outstanding will not exceed 27.9 million.
Fractional shares of Executive Help Common Stock shall not be issued, but their
cash value, as determined in good faith by the board of directors of Executive
Help, shall be paid for the fractional shares.
2.3. Surrender and Conversion of AdZone Share Certificates. All persons
holding shares of AdZone Common Stock shall surrender the certificates
representing the shares of AdZone Common Stock, either by certified mail, return
receipt requested, or in person to: AdZone Interactive, Inc., 000 Xxxxxxx
Xxxxxx, Xxxxxxxxx, Xxx Xxxx, 00000, or such other location as AdZone shall
advise such holders in writing. Upon receipt of the surrendered share
certificate of AdZone Common Stock, a replacement certificate reflecting shares
of Executive Help Common Stock as set forth in Paragraph 2.2 hereof shall be
issued and caused to be delivered in accordance with this Agreement.
Notwithstanding proposed exchanges of certificates, each certificate
representing shares of AdZone Common Stock not physically surrendered pursuant
to this section shall be deemed to represent shares of Executive Help Common
Stock as outlined in section 2.2 above.
2.4. Employee Plans.
2.4.1. Stock Option Plans. Executive Help shall assume each option to
purchase shares of AdZone's Common Stock ("AdZone Options") outstanding at
the Effective Date and each AdZone Option shall thereafter be exercisable
for a number of shares of Executive Help Common Stock equal to the number
of shares of AdZone Common Stock subject to such option immediately prior
to the Effective Date. The exercise price per share of Executive Help
Common Stock for such AdZone Option so assumed shall be the exercise price
per share specified in such AdZone Option. Each of the assumed AdZone
Options shall be continued upon the same terms and conditions as were
applicable prior the assumption, except for the adjustments contemplated
immediately above.
2.4.2. Employment Agreements. As of the Effective Date, Executive Help
will adopt as employer mutatis mutandis all employment agreements and
employment, salary and fringe benefit arrangements and obligations of
AdZone.
2.4.3. Other Agreements. As of the Effective Date, Executive Help will
assume mutatis mutandis any and all agreements of AdZone, and agrees to be
bound by the terms and conditions of each such agreement. Those agreements
are attached as Exhibit A.
3. Dissenters' Rights. Notwithstanding anything in this Agreement to the
contrary, shares of AdZone's Common Stock that are issued and outstanding
immediately prior to the Effective Date and that are held by stockholders who
have not voted such shares in favor of the Merger and who have delivered a
written demand for appraisal of such shares in the manner
3
provided in Section 623 of the New York Consolidated Laws ("Dissenting Shares")
shall have no right to receive any cash payment unless and until such holder
shall have failed to perfect, or shall have effectively withdrawn or lost, such
holder's right to appraisal and payment under New York and Delaware Law. If such
holder shall have so failed to perfect, or shall have effectively withdrawn or
lost such right, such holder's shares of AdZone's Common Stock shall thereupon
be deemed to have been canceled and converted at the Effective Date, and each
such share shall represent the right to receive the appropriate cash payment
based upon the applicable exchange rate. AdZone shall give Executive Help prompt
notice of any demands received by AdZone for appraisal of its shares.
4. Representations and Warranties of AdZone. AdZone represents and warrants to
-- ---------------------------------------------------------------------------
Executive Help as follows:
--------------------------
4.1. Corporate Organization. AdZone is a corporation duly organized,
validly existing and in good standing under the laws of the State of New York,
and is duly qualified to do business as a foreign corporation in each other
jurisdiction in which the failure to so qualify would have a material adverse
effect on its business as presently conducted and as proposed to be conducted.
4.2. Validity of Transaction. AdZone has full right, power and authority to
enter into this Agreement and to perform its obligations hereunder. This
Agreement has been duly authorized, executed and delivered by AdZone and
constitutes the valid and legally binding obligation of AdZone.
4.3. Capitalization. Immediately prior to the Effective Date, the
authorized capital stock of AdZone shall consist solely of ______ shares of
Common Stock, of which ______ shares will be issued and outstanding and ______
shares will be reserved for issuance to employees, directors and consultants,
upon exercise of stock options. Except for the shares reserved for issuance as
described above, AdZone has no agreement or understanding to issue any capital
stock.
4.4. Litigation. AdZone is not a party to any litigation or any
governmental proceeding and, to the best of its knowledge, there is no valid
basis for any such litigation or proceeding. There is no judgment or order of
any court or governmental authority in effect against AdZone.
5. Representations and Warranties of Executive Help. Executive Help
represents and warrants to AdZone as follows:
5.1. Corporate Organization. Executive Help is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, and is duly qualified to do business as a foreign corporation in each
other jurisdiction in which the failure to so qualify would have a material
adverse effect on its business as presently conducted and as proposed to be
conducted.
4
5.2. Validity of Transaction. Executive Help has full right, power and
authority to enter into this Agreement and to perform its obligations hereunder.
This Agreement has been duly authorized, executed and delivered by Executive
Help and constitutes the valid and legally binding obligation of Executive Help.
5.3. Capitalization. Immediately prior to the Effective Date, the
authorized capital stock of Executive Help shall consist solely of one hundred
million (100,000,000) shares of Common Stock, $0.001 par value and 20,000,000
shares of Preferred Stock, $0.001 par value.
5.4. Litigation. Executive Help is not a party to any litigation or any
governmental proceeding and, to the best of its knowledge, there is no valid
basis for any such litigation or proceeding. There is no judgment or order of
any court or governmental authority in effect against Executive Help.
6. Conditions Precedent to Executive Help's Obligations to Close.
-- ---------- ---------------------- ------ ---------------------
Executive Help's obligation to consummate the Merger is subject to the
satisfaction, on or before the closing, of the following conditions:
(a) Performance of Acts and Undertakings of AdZone. Each of the acts
and undertakings of AdZone to be performed on or before the Closing Date
pursuant to the terms of this Agreement shall have been duly performed.
(b) Certified Resolutions. AdZone shall have furnished Executive Help
with a copy, certified by AdZone's secretary, of (1) a resolution or
resolutions duly adopted by AdZone's board of directors authorizing and
approving this Agreement and directing that it be submitted to a vote of
AdZone's shareholders, and (2) a resolution or resolutions adopting this
Plan and Agreement of Merger, duly approved by the holders of at least a
majority of the total number of outstanding shares of common stock of
AdZone.
(c) Continued Accuracy of AdZone's Representations and Warranties. All
of the representations and warranties of AdZone contained in this Agreement
and in the Schedules furnished pursuant to paragraph 8 shall be true in
every respect on and as of the Closing Date, with the same effect as though
such representations and warranties had been made on and as of that date;
and Executive Help shall have received at the closing a certificate, dated
the Closing Date and executed by the president or a vice president of
AdZone, containing a representation and warranty to that effect.
(d) Opinion of AdZone's Counsel Required. AdZone shall have furnished
Executive Help with a favorable opinion of Xxxxx X. Xxxxxx, counsel for
AdZone, dated the Closing Date, substantially in the form attached hereto
as Exhibit B. In addition to matters specified in the form, the opinion
shall include such other matters incident to the contemplated transactions
as are reasonably requested by Executive Help or its counsel.
5
(e) Opinion to Executive Help of Executive Help's Counsel. Executive
Help shall have received the opinion of its counsel to the effect that the
transactions contemplated by this Agreement will not violate any federal
statute or any court decree or order, and that all legal matters relating
to the consummation of the transactions contemplated by this Agreement have
been or will be completed to the satisfaction of Executive Help's counsel
in all material respects.
(f) Approvals From Authorities. Executive Help shall have received, or
shall have satisfied itself that it will receive, in form satisfactory to
Executive Help, all necessary approvals of the transactions contemplated by
this Agreement from authorities having any jurisdiction over the business
of AdZone of any AdZone Subsidiary, so that AdZone and AdZone Subsidiaries
may continue to carry on their business as presently conducted after
consummation of the Merger; and no such approval shall have been withdrawn
or suspended.
(g) Consents. All consents of other parties (if applicable) to the
mortgages, notes, leases, franchises, agreements, licenses, and permits of
AdZone or any AdZone Subsidiary necessary to permit consummation of the
Merger shall have been obtained.
(h) Adoption of Merger by Shareholders. At least a majority of the
outstanding shares of AdZone Common Stock shall have been voted for the
adoption of the Merger and Plan of Reorganization set forth in this
Agreement.
(i) Dissenting Shares. Not more than ten percent (10%) of the
outstanding shares of AdZone Common Stock shall be "dissenting shares"
within the definition of Section 623 of the New York Consolidated Laws.
(j) Employment Agreements. Those executives of AdZone and AdZone
Subsidiaries designated by Executive Help shall have entered into
employment agreements on terms satisfactory to such executives or employees
and their respective counsel and to Executive Help and its counsel. The
Agreements are attached as Exhibit C.
(k) Filing of Merger Agreement. The Plan and Agreement of Merger shall
have been filed in the office of the Secretary of State or other office or
each jurisdiction in which such filings are required in order for the
Merger to become effective, or Executive Help shall have satisfied itself
that all such filings will be or are capable of being made effective as of
the Closing Date.
(l) AdZone's Delivery of Updated Schedules. AdZone shall have
delivered the Schedules, updated through the Closing Date.
(m) Resignation of Xxxx X. Xxxxx. Upon the signing of this agreement
by all parties, Xxxx X. Xxxxx shall resign as an officer and director of
Executive Help, effective immediately. Xx. Xxxxx shall not be required to
return the shares of stock in Executive Help previously issued to him for
his services to the company.
6
7. Condition Precedent to AdZone's Obligation to Close.
-- ----------------------------------------------------
AdZone's obligation to consummate the Merger is subject to the satisfaction
on or prior to the Closing Date of the following conditions:
(a) Performance of Acts and Undertakings by Executive Help. Each of
Executive Help's acts and undertakings to be performed on or before the Closing
Date pursuant to this Agreement shall have been performed.
(b) Certified Resolutions. Executive Help shall have furnished AdZone with
certified copies of (1) resolutions duly adopted by the board of directors of
Executive Help and authorizing and approving the execution and delivery of this
Plan and Agreement of Merger and authorizing the consummation of the
transactions contemplated by this Agreement, and (2) resolutions duly adopted by
Executive Help adopting the plan of merger set forth in this Agreement.
(c) Continued Accuracy of Executive Help's Representations and Warranties.
The representations and warranties of Executive Help contained in this Agreement
shall be true on and as of the Closing Date with the same effect as though such
representations and warranties had been made on and as of that date; and AdZone
shall have received at the closing a certificate, dated the Closing Date and
executed on behalf of Executive Help by its president or any vice president,
containing a representation and warranty to that effect.
(d) Shareholder Vote. At least a majority of the outstanding shares of
common stock of AdZone shall have been voted for the adoption of the Merger and
Plan of Reorganization contemplated by this Agreement.
(e) Opinion of Executive Help's Counsel Required. Executive Help shall have
furnished AdZone with a favorable opinion of Xxxxx Law Firm, P.C., counsel for
Executive Help, which opinion shall be dated on the closing and is attached as
Exhibit D and shall contain such information as required by counsel to AdZone.
8. Schedules.
-------------
As soon as practicable, but in no event later than five (5) days after the
date of this Agreement, AdZone shall deliver to Executive Help Schedules in the
form attached to this Agreement as Exhibit E. Each such Schedule shall have been
executed by or on behalf of AdZone and shall be accompanied by a copy of each
document referred to in the Schedule. Pursuant to paragraph 6(k), all Schedules
shall be updated through the effective date; however, the updating of the
Schedules shall not relieve AdZone of its responsibility to indemnify Executive
Help, as provided in paragraph 11, with respect to any information not disclosed
in the original Schedules. Each matter disclosed in a Schedule shall be taken as
relating only to that specific Schedule.
9. Investigation by Executive Help.
-- --------------------------------
Prior to the Closing Date, Executive Help may directly or through its
representatives make such investigation of the assets and business of AdZone and
its Subsidiaries (including, without limitation, confirmation of its cash,
inventories, accounts, accounts receivable and liabilities, and investigation of
its titles to and the condition of its property
7
and equipment) as Executive Help deems necessary or advisable. The investigation
shall not affect (1) AdZone's representations and warranties contained or
provided for in this Agreement, (2) Executive Help's right to rely on those
representations and warranties, or (3) Executive Help's right to terminate this
Agreement as provided in this paragraph 9 and in paragraph 13. AdZone shall
allow Executive Help and its representatives full access, at reasonable times
after the date of execution of this Agreement, to the premises and to all the
books, records, and assets of AdZone and its Subsidiaries, and AdZone's officers
shall furnish to Executive Help such financial and operating data and other
information with respect to the business and properties of AdZone and each
AdZone Subsidiary as Executive Help shall from time to time reasonably request.
Executive Help agrees not to disclose any confidential information obtained in
the course of its investigation or use it for any purposes other than evaluation
of AdZone and its Subsidiaries with respect to the contemplated merger.
As soon as practicable, and in any event within 10 days after the receipt
of (1) the last Schedule required to be delivered to Executive Help by AdZone
pursuant to paragraph 8 and (2) any supporting documentation requested by
Executive Help, Executive Help shall give AdZone notice if Executive Help has
decided that it wishes to terminate this Agreement based on any information
contained in any of the Schedules or obtained during the course of its
investigation. The notice shall specify the information contained in the
Schedules or obtained during the investigation on which Executive Help's
decision to terminate is based. AdZone shall have 10 days after receipt of the
notice to review that information with Executive Help. If Executive Help does
not withdraw its notice within this 10-day period, then all further obligations
of Executive Help and of AdZone under this Agreement shall terminate without
further liability of Executive Help to AdZone or of AdZone to Executive Help,
except their respective obligations to return documents as provided in paragraph
16. If Executive Help does not advise AdZone within the 10 day period specified
in the first sentence above that it wishes to terminate this Agreement,
Executive Help shall be deemed to be satisfied with the information relating to
AdZone and its Subsidiaries contained in the Schedules and/or obtained during
the course of its investigation, subject to Executive Help's rights concerning
the continued accuracy of AdZone's warranties and representations set forth in
paragraph 4.
10. Survival of Representations, Warranties, and Indemnities.
--- ---------------------------------------------------------
The representations, warranties, and indemnities included or provided for
in this Agreement or in any Schedule or certificate or other document delivered
pursuant to this Agreement shall survive the Closing Date for a period of four
(4) years. No claim may be made under this paragraph unless written notice of
the claim is given within that 4-year period.
11. Indemnification.
--------------------
Notwithstanding Executive Help's investigations of AdZone and its
Subsidiaries before the Closing Date, and notwithstanding the fact that
Executive Help may be deemed satisfied as to certain matters investigated by
Executive Help, all as provided in paragraph 9, AdZone shall indemnify, defend,
and hold Executive Help and each of its subsidiaries harmless, to the maximum
extent, from and against any and all losses, liabilities, costs, expenses,
judgments, assessments, penalties, damages, deficiencies, suits, actions,
claims, proceedings, demands, and
8
causes of action, including but not limited to reasonable attorney fees, court
costs, and related expenses, that were caused by, arose as a result of, or arose
with respect to any of the following:
(a) Any inaccuracy in any representation or warranty or any breach of any
warranty of AdZone under this Agreement or any Schedule, certificate,
instrument, or other document delivered pursuant to this Agreement;
(b) Any failure of AdZone duly to perform or observe any term, provision,
covenant, or agreement to be performed or observed by AdZone pursuant to this
Agreement, and any Schedule, certificate, agreement, or other document entered
into or delivered pursuant to this Agreement; or
(c) Any inaccuracy whatsoever in the Balance Sheet, whether such losses
were known or unknown to AdZone or its Subsidiaries; provided, however, that
Executive Help and its subsidiaries shall not be indemnified and held harmless
unless and until such damages, losses, and expenses exceed $100,000, in which
event, Executive Help and its subsidiaries shall be indemnified and held
harmless in full. All claims under this provision for indemnity shall be made
within one year from the effective date.
12. Establishment of Escrow.
--- ------------- ----------
Upon closing, the parties shall forthwith enter into an escrow to carry out
the terms of this Agreement, and an Escrow shall be created consisting of the
shares specified in paragraph 2. Xxxxx Law Firm shall act as Escrow Holder.
Escrow Holder shall hold and dispose of the Escrow shares in accordance
with the Escrow Agreement attached hereto as Exhibit F. The parties to this
Agreement understand and agree to the terms of the Escrow Agreement set forth as
Exhibit F, which when duly executed shall be incorporated as part of this
Agreement.
13. Further Assurances.
-----------------------
Executive Help and AdZone each agrees that from time to time, as and when
requested by the other, it will execute, acknowledge, deliver and file all
proper deeds, assurances, assignments, bills of sale, assumptions and other
documents, and do, or cause to be done, all other acts and things necessary or
proper in order to vest, perfect, assure or confirm in Executive Help title to
and possession of all the property, rights, privileges, powers, franchises, bank
accounts, contracts, patents, copyrights, and stated liabilities of AdZone, or
otherwise necessary or proper to carry out the intent and purposes of this
Agreement.
14. Termination of this Agreement.
--- ----------- ------- ----------
In addition to the termination rights provided for in paragraph 9, this
Agreement and the transactions contemplated under this Agreement may be
terminated at any time prior to the Closing Date, either before or after the
meeting of AdZone's shareholders:
(a) By mutual consent of Executive Help and AdZone;
9
(b) By Executive Help if there has been a material misrepresentation or a
material breach of warranty in AdZone's representations and warranties set forth
in this Agreement or in any Schedule or certificate delivered pursuant to this
Agreement;
(c) By AdZone if there has been a material misrepresentation or a material
breach of warranty in Executive Help's representations and warranties set forth
in this Agreement;
(d) By Executive Help or AdZone if either party shall have determined in
its sole discretion that the transactions contemplated by this Agreement have
become inadvisable or impracticable by reason of the institution or threat of
institution, by governmental authorities (local, state, or federal) or by any
other person, of material litigation or proceedings against either or both of
the parties, it being understood and agreed that a written request by
governmental authorities for information with respect to the proposed
transactions, which information could be used in connection with such litigation
or proceedings, may be deemed by Executive Help or AdZone to be a threat of
material litigation or proceedings, whether such request is received before or
after the date of this Agreement;
(e) By Executive Help if it has determined that the business, assets, or
financial condition of AdZone have been materially and adversely affected,
whether by reason of changes, developments, or operations in the ordinary course
of business or otherwise;
(f) By AdZone or by Executive Help if the Effective Date referred to in
paragraph 1.1 has not occurred by July 1, 2001; and
(g) By AdZone if it has determined that the business, assets or financial
conditions of Executive Help and its subsidiaries, taken as a whole, have been
adversely affected, whether by reason of changes, developments, or operations in
the ordinary course of business or otherwise.
15. Right to Proceed.
---------------------
In the event that this Agreement is terminated pursuant to this paragraph
15 or paragraph 9, or because of the failure to satisfy any of the conditions
specified in paragraph 6 or paragraph 7, all further obligations of Executive
Help and of AdZone under this Agreement shall terminate without further
liability of Executive Help to AdZone or AdZone to Executive Help, except for
the obligations of both parties under paragraph 14 and of Executive Help under
paragraph 16; provided, however, anything in this Agreement to the contrary
notwithstanding, that if AdZone fails to furnish any of the Schedules referred
to in paragraph 8 or fails to satisfy any of the conditions specified in
paragraph 6, Executive Help shall nonetheless have the right in its discretion,
to proceed with the transactions contemplated by this Agreement, and if
Executive Help fails to satisfy any of the conditions specified in paragraph 7,
AdZone shall nonetheless have the right, in its discretion, to proceed with the
transactions contemplated by this Agreement.
16. Return of Documents in Event of Termination.
--- --------------------------------------------
In the event of the termination of this Agreement for any reason, Executive
Help will return to AdZone all documents, work papers, and
10
other materials (including copies) relating to the transactions contemplated by
this Agreement, whether obtained before or after execution of this Agreement.
Executive Help will not use any information so obtained for any purpose, and
will take all practicable steps to have such information kept confidential. In
addition, all shares held in the Escrow shall be returned.
17. Miscellaneous.
--- --------------
(a) Amendments. At any time before or after approval and adoption by the
shareholders of AdZone, this Agreement may be amended in any manner (except that
the provisions of paragraph 2 may not be amended without the approval of the
shareholders of AdZone) as may be determined in the judgment of the respective
Boards of Directors of Executive Help and AdZone to be necessary, desirable or
expedient in order to clarify the intention of the parties hereto or to effect
or facilitate the purposes and intentions of this Agreement.
(b) Attorney Fees and Costs in Event of Termination. In the event of the
termination of this Agreement for any reason, each party shall bear its own
costs and expenses, including attorney fees.
(c) Public Announcement. Neither Executive Help nor AdZone, without the
consent of the other, shall make any public announcement or issue any press
release with respect to this Agreement or the transactions contemplated by it,
which consent shall not be unreasonably withheld.
(d) Meeting of AdZone's Shareholders. AdZone shall take all necessary steps
to call a meeting of its shareholders to be held within sixty (60) days from the
date of this Agreement, which number of days includes adequate time for the
preparation and mailing of proxy statements if applicable. In all proxy
statements or other communications with the shareholders on this subject,
AdZone's board of directors shall recommend to the shareholders that they adopt
the plan of merger and approve the terms of this Agreement.
(e) Covenant to Operate in the Ordinary Course. Between the date of this
Agreement and the Closing Date, AdZone shall operate its business only in the
ordinary course and in a normal manner consistent with past practice. During
this period, AdZone shall not encumber any asset or enter into any transaction
or make any commitment relating to its assets or business otherwise than in the
ordinary course of its business (consistent with its prior practices), or take
any action that would render inaccurate any representation or warranty contained
in this Agreement or would cause a breach of any other covenant under this
Agreement, without first obtaining the written consent of Executive Help.
(f) Governing Law; Successors and Assigns; Counterparts; Entire Agreement.
This Agreement (a) shall be construed under and in accordance with the laws of
the state of Delaware; (b) shall be binding on and shall inure to the benefit of
the parties to the Agreement and their respective successors and assigns; (c)
may be executed in one or more counterparts, all of
11
which shall be considered one and the same agreement, and shall become effective
when one or more counterparts shall have been signed by each of the parties and
delivered to Executive Help and AdZone; and (d) embodies the entire agreement
and understanding, superseding all prior agreements and understandings between
AdZone and Executive Help relating to the subject matter of this Agreement.
(g) Notices. All notices, requests, demands, and other communications under
this Agreement shall be in writing and shall be deemed to have been duly given
on the date of service if served personally on the party to whom notice is to be
given, or on the third day after mailing if mailed to the party to whom notice
is to be given, by first class mail, registered or certified, postage prepaid,
and properly addressed as follows:
12
To AdZone at:
AdZone Interactive, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
To Executive Help and its Subsidiary at:
Executive Help Services, Inc.
0000 Xxxx Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Any party may change its address for purposes of this paragraph by
giving the other parties written notice of the new address in the manner set
forth above.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed by their duly authorized officers and their corporate
seals to be hereto affixed effective as of the date first written above.
ADZONE INTERACTIVE, INC.
a New York corporation
By:
---------------------
Xxxx Xxxxxxx, President
ATTEST:
, Secretary
--------------------------
EXECUTIVE HELP SERVICES, INC.
a Delaware corporation
By:
--------------------------
Xxxxxxx X. Xxx, President
ATTEST:
--------------------------
Xxxx X. Xxxxx, Secretary
13
