EXHIBIT 10.26
MERGER AGREEMENT
THIS MERGER AGREEMENT (together with the Exhibits and Schedules hereto, the
"Agreement"), dated January 14, 2000, is entered into by and among
XxxXxxxx.xxx, Inc., a Delaware corporation ("Parent"), Lujack Subsidiary, Inc.,
a Delaware corporation and a wholly-owned subsidiary of Parent ("Mergersub"),
Intralogix, Inc., an Illinois corporation (the "Company"), and Xxxx X. Xxxxx,
Xxxxxxx X. Xxxxx and Xxxx X. Xxxxx (collectively, the "Founders").
RECITALS
A. The Board of Directors of the Company and the shareholders of the
Company have approved the proposed merger (the "Merger") of Mergersub with and
into the Company in accordance with the Business Corporation Act of 1938 of the
State of Illinois (the "Illinois BCA Corporation Law") and on the terms and
conditions set forth herein.
B. The Board of Directors of Mergersub and Parent, the sole shareholder of
Mergersub, have approved the Merger in accordance with the Delaware General
Corporation Law (the "DGCL") and on the terms and conditions set forth herein.
C. The parties intend for the Merger, for federal income tax purposes, to
qualify as a "reorganization" within the meaning of Section 368 of the Internal
Revenue Code of 1986, as amended (the "Code"); however, nothing in this
Agreement shall be construed as a representation or warranty by Parent, or an
agreement by Parent to indemnify any party, with respect to the tax treatment or
tax effects of the transaction.
NOW, THEREFORE, in consideration of the recitals and the mutual covenants,
representations, warranties, conditions, and agreements hereinafter expressed,
the parties agree as follows:
ARTICLE I
THE MERGER
1.1 The Merger. At the Effective Time, Mergersub shall merge with and into
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the Company through the filing of a Certificate of Merger with the Office of the
Secretary of State of the State of Delaware, in accordance with the applicable
provisions of the Delaware General Corporation Law, and a Certificate of Merger
with the Office of the Secretary of State of the State of Illinois, in
accordance with the applicable provisions of the Illinois BCA (the time of the
later of such filings (collectively, the "Merger Filings") is hereinafter
referred to as the "Effective Time"). From and after the Effective Time, the
separate existence of Mergersub shall cease and the Company shall continue as
the surviving corporation (the "Surviving Corporation").
1.2 The Closing. The closing of the Merger (the "Closing") shall take
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place at the offices of Xxxxxxxxx & Xxxxx PLLC, 0000 Xxxxxxx Xxxx Xxxx, Xxxxx
000, Xxxxxxx, Xxxxx Xxxxxxxx 00000, immediately prior to the filing of the
Merger Filings. The Closing shall take place within five (5) business days
after the approval of the Merger by the shareholders of the
Company, or on such other date as the parties may agree (the "Closing Date"). At
the Closing, each party shall execute and deliver to the other all such
agreements, documents, and instruments as may be required or contemplated by
this Agreement or as may be reasonably requested by any party to effect and
evidence the consummation of the Merger, all of which shall be in a form and
substance reasonably satisfactory to the other parties.
1.3 Conversion of the Company Stock.
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(a) At the Effective Time, by virtue of the Merger and without any action
on the part of Parent, Mergersub, the Company or their respective stockholders,
each share of the capital stock of the Company issued and outstanding
immediately prior to the Effective Time (the "Company Stock") shall be canceled
and converted automatically into the right to receive the types and amounts of
consideration as set forth opposite each shareholder's name on Schedule 1.3
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attached hereto. All undeclared or unpaid dividends on the capital stock of the
Company immediately prior to the Effective Time shall be cancelled at the
Effective Time. All the Company stock held in the treasury of the Company
immediately prior to the Effective Time shall be cancelled and no consideration
of any kind shall be delivered in exchange therefor under this Agreement.
(b) At the Closing, each of the shareholders of the Company (the
"Shareholders") shall surrender and deliver to Parent the certificates
evidencing all of the issued and outstanding shares of the Company Stock, in
accordance with the provisions of Section 1.7, in exchange for the aggregate
consideration payable to the Shareholders in the Merger, as described below (the
"Merger Consideration"). The Merger Consideration (which shall constitute all of
the consideration to be delivered to the Shareholders or any other person in
respect of the shares of capital stock, or rights to acquire shares of capital
stock, of the Company) shall be subject to adjustment as described in Sections
1.4 (Post-Closing Adjustment), 1.5 (Escrow Agreement), 1.6 (Holdback) and
Article VII (Indemnification). The Merger Consideration shall consist of (i) a
number of unregistered shares of the Common Stock, $0.001 par value, of Parent
("Parent Common Stock"), as described below (the "Merger Shares"), and (ii) a
total of $192,000.00 in cash (the "Cash Consideration"). The Merger Shares
shall be divided into two categories, (i) 19,250 unregistered shares of Parent
Common Stock (the "Initial Shares") and (ii) that number of unregistered shares
of Parent Common Stock equal to the quotient of $500,000 divided by the Average
Stock Price (the "Escrowed Shares"). The "Average Stock Price" shall mean the
average closing price of the Parent Common Stock as reported on the Nasdaq Stock
Market for the ten (10) trading day period ending on and including the second
trading day prior to the Closing Date. The Merger Consideration shall be payable
as follows:
(i) Each Shareholder shall receive a certificate or certificates
representing a number of Initial Shares, which shall be delivered to such
Shareholder as soon as practicable following the Effective Time (subject to
compliance by the Shareholder with the requirements relating thereto set
forth in Section 1.7), and a portion of the Cash Consideration (subject to
subparagraph (iii) below), each in the amounts set forth opposite such
holder's name on Schedule 1.3 under the headings titled "Closing Payment -
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Cash" and "Closing Payment - Initial Shares"; and
(ii) The Escrowed Shares payable to the Shareholders shall be
withheld by Parent and delivered to Xxxxxxxxx & Xxxxx PLLC (the "Escrow
Agent") in accordance with Section 1.5; and
(iii) $25,000 of the Cash Consideration payable to the
Shareholders (the "Holdback ") shall be withheld by Parent as deferred
Merger Consideration and issued to the Shareholders in accordance with the
provisions of Section 1.6.
(c) Notwithstanding anything to the contrary herein, no fractional
shares of Parent Common Stock will be issued. Any person who would be entitled
to receive a fractional share of Parent Common Stock but for this Section will,
in lieu of such fractional share and upon surrender of such person's certificate
or certificates of the Company Capital Stock, receive cash (without interest) in
an amount equal to such fractional portion of a full share of Parent Common
Stock multiplied by the Average Stock Price.
(d) Each Shareholder's pro rata portion of the Initial Merger
Consideration, which includes the Escrowed Shares and the Holdback, is set forth
on Schedule 1.3 under the appropriately titled columns. Shares of Parent Common
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Stock shall be valued for all purposes at the Average Stock Price.
1.4 Post-Closing Adjustment. Within ten (10) business days of the
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Closing, the Company shall deliver to Parent, in a form satisfactory to Parent,
financial statements and other documentation necessary to determine the total
amount of liabilities of the Company outstanding as of the Closing Date (the
"Closing Date Liabilities"). Parent shall have such access to the Company'
books and records as it deems necessary to verify the amount of such Closing
Date Liabilities. Based on the Closing Date Liabilities, the Cash Consideration
payable to the Shareholders shall be reduced (the "Cash Adjustment") pro rata
among the Shareholders based on their respective ownership of the Company Stock,
on a dollar for dollar basis in an amount equal to the amount by which the
Closing Date Liabilities exceed $73,000 in the aggregate (inclusive of the
Company' January advertisement in American Laboratory), such reductions to be
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paid from the Holdback described in Section 1.6.
1.5 Escrow Agreement.
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(a) On the Closing Date, Parent, each of the Shareholders and the Escrow
Agent shall execute an escrow agreement in the form of Exhibit A (the "Escrow
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Agreement"), pursuant to which Parent shall deposit into escrow the Escrowed
Shares in payment of part of the Initial Merger Consideration. The Escrowed
Shares shall be available on the terms and conditions set forth herein and in
the Escrow Agreement (i) for the satisfaction of certain performance milestones
of the Company, and (ii) to secure the payment of any Indemnified Losses for
which the Shareholders are obligated to indemnify the Indemnified Persons under
Article VII hereof. During the period such Escrowed Shares are held in escrow,
all cash dividends, if any, paid with respect to the Escrowed Shares shall be
the property of, and shall be delivered to, the Shareholders, each in accordance
with their respective ownership interests, and each of the Shareholders shall
have the sole power to exercise all voting rights pertaining to their pro rata
portion of Escrowed Shares. All shares issued in respect of the Escrowed Shares
(including,
without limitation, shares issued in connection with stock dividends, stock
splits, recapitalizations, reorganizations or similar transactions affecting the
Parent Common Stock) shall, upon issuance, be deposited in the escrow, held
subject to the terms and conditions of the Escrow Agreement and treated for all
purposes as Escrowed Shares.
(b) The adoption of this Agreement and the approval of the Merger by the
Shareholders shall constitute full approval by the Shareholders of the Escrow
Agreement and the appointment of Xxxxxxxxx & Xxxxx PLLC as the escrow agent
under the Escrow Agreement (the "Escrow Agent") and of all of the arrangements
relating thereto, including, without limitation, the indemnification provisions
and obligations set forth in Article VII of this Agreement, the placement in
escrow of the Escrowed Shares, and the appointment of Xxxx X. Xxxxx to serve as
the Shareholders' representative (the "Shareholder Representative") to act as
the representative of the Shareholders for purposes of the Escrow Agreement and
this Agreement.
1.6 Holdback. The Holdback portion of the Merger Consideration payable to
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the Shareholders shall be withheld at Closing for satisfaction of any Cash
Adjustment determined in accordance with Section 1.4. Accordingly, the parties
agree that Parent shall be entitled to withhold at Closing the amount of cash
set forth opposite each Shareholder's name under the column titled "Holdback" on
Schedule 1.3. Promptly after the Cash Adjustment has been finally and
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conclusively determined, Parent shall (subject to any reduction of the Holdback
pursuant to Section 1.5 hereof) pay to each Shareholder cash equal to such
Shareholder's portion of the Holdback as set forth on Schedule 1.3. The payment
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of the Holdback shall be accompanied by a cash payment of interest accrued on
such installment payment since the Closing Date at the rate of eight percent
(8%) per annum. Parent will be entitled to any interest earned on the portion,
if any, of the Holdback that is reduced as a result of the Cash Adjustment.
1.7 Surrender and Exchange of Certificates. At the Closing, each of the
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Shareholders shall surrender and deliver to Parent the certificates evidencing
all of the issued and outstanding shares of the Company Stock, duly endorsed by
such Shareholders, and upon such surrender, each such certificate shall
represent the right to receive such Shareholder's pro rata portion of the Merger
Consideration. As soon as practicable following the Closing, Parent shall
instruct the transfer agent of Parent Common Stock to issue the Merger Shares
and to deliver such Merger Shares to the Shareholders or the Escrow Agent, as
provided in this Agreement.
1.8 Intentionally deleted.
1.9 Intentionally deleted.
1.10 Legend. The shares of Parent Common Stock issued in connection with
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the Merger will be issued in a transaction exempt from registration under the
Securities Act of 1933, as amended (the "Securities Act"), by reason of Rule 506
of Regulation D thereof and, as such, will constitute restricted securities
within the meaning of Rule 144 promulgated thereunder. Each certificate of the
Parent Common Stock issued in connection with the Merger will bear appropriate
legends to evidence such privately placed shares as being restricted under the
Securities Act, and any other applicable restrictions upon the transferability
of the shares or otherwise. It is acknowledged and understood that Parent is
relying on certain representations made by the Shareholders in the Stockholder
Investment Representation Letters (as herein defined). The Securities Act
legend shall read substantially as follows:
THE SHARES OF STOCK EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND MAY NOT BE SOLD, OFFERED FOR SALE, ASSIGNED,
MORTGAGED, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND ALL
APPLICABLE STATE SECURITIES LAWS COVERING SUCH SHARES, COMPLIANCE WITH
AN EXEMPTION FROM SUCH REGISTRATION OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
1.11 Conversion of Subsidiary Stock. At the Effective Time, by virtue of
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the Merger and without any action on the part of the Parent, Mergersub, the
Company or their respective stockholders, each share of Common Stock, having a
par value per share of $0.001, of Mergersub issued and outstanding immediately
prior to the Effective Time shall be converted into and exchanged for one
validly issued, fully paid and nonassessable share of common stock of the
Surviving Corporation, and, upon surrender of the certificate(s) representing
such shares of Mergersub Common Stock, the Surviving Corporation shall promptly
issue to the owner thereof a certificate representing the share of Common Stock
of the Surviving Corporation into which it has been converted. Such share shall
be the only issued and outstanding capital stock of the Surviving Corporation
and shall be owned by the Parent.
1.12 Certificate of Incorporation. After the Effective Time, the
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Certificate of Incorporation of Mergersub as in effect immediately prior to the
Effective Time shall be the Certificate of Incorporation of the Surviving
Corporation until amended in accordance with applicable law.
1.13 Bylaws. After the Effective Time, the Bylaws of Mergersub as in
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effect immediately prior to the Effective Time shall be the Bylaws of the
Surviving Corporation until amended or repealed in accordance with the
provisions thereof and applicable law.
1.14 Directors and Officers. Immediately after the Effective Time, the
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directors and officers of Mergersub immediately prior to the Effective Time
shall be the directors and officers of the Surviving Corporation and shall serve
in such capacities until their respective successors are duly elected and
qualified. The Surviving Corporation may designate such other officers as it
determines.
1.15 No Further Rights. As of the Effective Time, the Shareholders shall
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cease to have any rights as stockholders of the Company.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
AND THE FOUNDERS
The Company and each of the Founders, jointly and severally, represent and
warrant to Parent as follows:
2.1 Organization and Good Standing. The Company is a corporation duly
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organized, validly existing and in good standing under the laws of the State of
Illinois. The Company has all requisite power and authority to own, operate
and/or license and lease the Company Assets (as defined below) and the other
properties owned or used in its business license or (including, without
limitation, intangible property) (collectively with the Company Assets, the "the
Company Business Assets") and to conduct the operations of its business as
presently conducted. The Company is duly qualified to do business as a foreign
corporation and is in good standing in the jurisdictions listed on Schedule 2.1,
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which are all the jurisdictions in which it is required to be so qualified other
than such jurisdictions where the failure to be so qualified would not have a
Material Adverse Effect (as defined in Section 2.4) on the Company.
2.2 Authority. The Company has all requisite power and authority to
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execute and deliver this Agreement and the other documents, certificates and
instruments contemplated hereby (collectively with the Merger Agreement, the
"Transaction Documents") to which it is a party and to perform the transactions
contemplated hereby and thereby. The execution, delivery and performance of the
Transaction Documents to which the Company is a party, and the consummation of
the transactions contemplated thereby, have been duly and validly authorized by
all necessary corporate and stockholder action. Each of the Founders has all
requisite power and authority to execute and deliver the Transaction Documents
to which such Founder is a party, to perform his obligations thereunder, and to
consummate the transactions contemplated by the Transaction Documents. Each of
the Founders has all requisite power and authority to vote the outstanding
shares of the Company Common Stock held by such Founder, to approve this
Agreement and the transactions contemplated hereby and in the Transaction
Documents and the transactions contemplated hereby and thereby in compliance
with all applicable laws and the Articles and Bylaws of the Company. Each of
the Transaction Documents to which the Company or the Founders is a party has
been duly executed and delivered by the Company and the Founders and constitutes
a valid and binding obligation of each of the Company and the Founders,
enforceable against them in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights and by general equitable principles (regardless of
whether enforceability is considered in a proceeding in equity or at law).
2.3 Capitalization. The authorized capital stock of the Company consists
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of 10,000 shares of common stock, par value $1.00 per share (the "the Company
Stock"), of which 4,175 shares are issued and outstanding and 5,825 shares are
held in the treasury of the Company. Schedule 2.3 sets forth a complete and
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accurate list of all stockholders of the Company, indicating the number of
shares held by each stockholder, duly authorized, validly issued, fully paid,
nonassessable and free of all preemptive rights. There are no outstanding or
authorized options,
warrants, rights, agreements or commitments to which the Company or the Founders
is a party or which are binding upon the Company or the Founders providing for
the issuance, disposition or acquisition of any of the Company's capital stock,
other than as listed in Schedule 2.3. There are no plans providing for stock
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options or similar rights. There are no outstanding or authorized stock
appreciation, phantom stock or similar rights with respect to the capital stock
of the Company. There are no agreements, voting trusts, proxies or
understandings with respect to the voting, or registration under the Securities
Act, of any shares of the Company. All of the issued and outstanding Company
Stock was issued in compliance with applicable federal and state securities
laws.
2.4 Effect of Agreement. Except as disclosed on Schedule 2.4, the
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execution, delivery and performance of the Transaction Documents to which the
Company is a party do not and will not: (a) conflict with the Articles of
Incorporation or Bylaws of the Company; (b) violate any law or any rule or
regulation of any governmental body or administrative agency, or conflict with
any judicial or administrative order or decree relating to the Company or the
Company Business Assets, except for any such violations or conflicts which would
not, individually or in the aggregate, have a material adverse effect on the
business, the Company Business Assets, liabilities, results of operations or
condition (financial or otherwise) (a "Material Adverse Effect") of the Company
or impair the ability of the Company or the Founders to consummate the
transactions contemplated by this Agreement; (c) constitute a breach or default
under any of the Company Contracts (as defined below); (d) create any security
interest, mortgage, lien, claim, or encumbrance of any kind on any of the
Company Business Assets; or (e) except for the filing of a Certificate of Merger
with the Secretary of State of the State of Illinois and a Certificate of Merger
with the Secretary of State of the State of Delaware, require any consent,
notice to or filing with any governmental authority or administrative agency or
any third party on behalf of the Company or the Founders. The matters described
on Schedule 2.4 are referred to as the "Company Required Consents."
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2.5 Financials; Books. Attached hereto as Schedule 2.5 are true and
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complete copies of the balance sheet, statements of operations, changes in
stockholders' equity and cash flows for the fiscal years ended December 31,
1999, December 31, 1998 and December 31, 1997 and for the interim period ended
January 7, 2000 (collectively, the "Company Financial Statements"). The Company
Financial Statements (a) are true, complete and correct in all material
respects; (b) are in accordance with the books and records of the Company; and
(c) present fairly, in all material respects, the assets, liabilities and
financial condition of the Company as of the respective dates thereof, and the
results of operations for the periods then ending in conformity with generally
accepted accounting principles applied on a consistent basis throughout the
periods involved. The Company has no liability or obligation that is not
reflected or reserved against on the balance sheet for the twelve months ending
December 31, 1999 (the "the Company Balance Sheet"), except for those that are
not required by generally accepted accounting principles to be included therein
or those that have been incurred in the ordinary course of business since the
date of the Company Balance Sheet (none of which may reasonably be expected to
have a Material Adverse Effect on the Company). The books and records of the
Company are true, accurate and complete in all material respects and have been
maintained in accordance with generally accepted accounting principles applied
on a consistent basis.
2.6 Title to and Sufficiency of Assets and other Property. Set forth on
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Schedule 2.6 is a true and complete list of all material inventory, machinery,
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equipment, furniture, office equipment, supplies, materials, vehicles and other
material items of tangible personal property of every kind owned by the Company
and used in connection with its business (the "the Company Assets"). the Company
has good and marketable title to all of the Company Business Assets, free and
clear of all security interests, mortgages, liens, claims and encumbrances of
every kind except for liens for current taxes not yet due and payable and as
disclosed on Schedule 2.6. The Company Business Assets constitute all of the
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assets of any nature required to operate the Company's business in the manner
presently operated by the Company. The Company Assets (a) are in good operating
order, condition and repair (ordinary wear and tear excepted), (b) are suitable
for use in the ordinary course of business of the Company's business and (c) are
free from material defects.
2.7 Real Property. The Company neither owns nor leases any real
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property.
2.8 Contracts and Leases. Schedule 2.8 lists all contracts, commitments,
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agreements, understandings, obligations, whether written or oral (including,
without limitation, agreements for the borrowing of money or the extension of
credit that involve a commitment or expenditure by, or revenue to, the Company
in excess of $1,000.00, and agreements with employees, consultants and other
contractors), leases (including, without limitation, leases for the Company
Leased Real Property) and licenses, whether written or oral, to which the
Company or any of the Founders (on behalf of the Company) is party or by which
the Company or the Company Business Assets or any of the Founders (on behalf of
the Company) is bound (collectively, the "Company Contracts"). Each of the
Company Contracts is valid, binding and enforceable in accordance with its terms
and is in full force and effect, except as such enforceability may be limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or
other similar laws now or hereafter in effect relating to creditors' rights and
by general equitable principles (regardless of whether enforceability is
considered in a proceeding in equity or at law). There are no existing defaults
on the part of the Company or, to the knowledge of the Company and the Founders,
any other party to the Company Contracts, and, to the knowledge of the Company
and the Founders, no events or circumstances have occurred which, with or
without notice or lapse of time or both, would constitute defaults under any of
the Company Contracts. The execution, delivery and performance of the
Transaction Documents do not and will not, with respect to any the Company
Contract, (a) constitute a default or accelerate the obligations thereunder, (b)
require the consent of any person or party, except for the Company Required
Consents, or (c) affect the enforceability or validity thereof or the terms
thereof.
2.9 Receivables. Attached hereto as Schedule 2.9 hereto is a true,
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complete and accurate detailed listing of all accounts receivable of the Company
(the "Company Receivables"). The Company Receivables are, and will be at the
Effective Time, legal, valid and binding obligations and arose in the ordinary
course of business. The Company Receivables are not subject to any
counterclaim, set off, defense, security interest, claim or encumbrance. the
Company has made available to Parent complete and correct copies of all
instruments, documents and agreements evidencing such the Company Receivables,
including, without limitation, an aging schedule related to the Company
Receivables.
2.10 Intellectual Property.
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(a) Intellectual Property Rights. Schedule 2.10(a) hereto sets forth
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a complete and correct list of (i) all patents (the "Company Patents"),
trademarks, trade names (including all federal and state registrations
pertaining thereto, or applications for such registrations and a description of
the status of such applications), proprietary databases and registered
copyrights owned by the Company (collectively with all unregistered copyrights,
the "Company Proprietary Intellectual Property") and (ii) all patents,
trademarks, trade names, copyrights, technology and processes used by the
Company in its businesses which are material to its business and are used
pursuant to a license or other right granted by a third party, and all
agreements related thereto (collectively, the "Company Licensed Intellectual
Property", and together with the Company Proprietary Intellectual Property
referred to as "the Company Intellectual Property"). Each of the federal, state
and other governmental registrations with any country pertaining to the Company
Proprietary Intellectual Property is valid and in full force and effect. The
Company owns, or has the right to use pursuant to valid and effective
agreements, all the Company Intellectual Property, and the consummation of the
transactions contemplated hereby will not materially adversely alter or impair
any such rights. No claims are pending against the Company by any person with
respect to the use of any the Company Intellectual Property or challenging or
questioning the validity or effectiveness of any license or agreement relating
to the same that would be likely to have a Material Adverse Effect on the
Company, and, to the knowledge of the Company and the Founders, the current use
by the Company of the Intellectual Property does not in any material respect
infringe upon the rights of any third party. Schedule 2.10(a) sets forth a list
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of all jurisdictions in which the Company is operating under a trade name, and
each jurisdiction in which any such trade name is registered. No the Company
Patent has been or is now involved in any interference, reissue, reexamination
or opposition proceeding of which the Company has received notice, nor is the
Company aware of any potentially interfering patent or patent application of any
third party. To the knowledge of the Company, no person or entity is presently
selling or marketing a product which is covered by the Patents, and, to the
knowledge of the Company, the Patents have not been challenged or threatened in
any way. No current or former the Company employee is named as an inventor on
any pending patent application. All of the Company Patents are currently in
compliance with formal legal requirements (including payment of filing,
examination and maintenance fees and proofs of working or use) and to the
knowledge of the Company, there is no currently existing circumstance which
would render the Company Patents invalid or unenforceable, and they are not
subject to any maintenance fees or taxes or actions falling due within ninety
days after the date of Closing.
(b) Company Computer Software and Hardware.
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(i) Schedule 2.10(b) hereto sets forth a true and complete list
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of: (a) all software and associated documentation owned by or developed by or
for the Company material to the business of the Company (such items set forth on
Schedule 2.10(b) are hereinafter referred to as the "Company Proprietary
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Software"); (b) all software (other than the Company Proprietary Software and
"shrink-wrap" software) used by the Company or its employees in connection with
the business of the Company (the "Company Licensed Software" and together with
the Company Proprietary Software, the "Company Software"). The Company has all
rights that are necessary or appropriate to distribute, license or sublicense
the Company Software to
third parties and to appoint others to do any of the foregoing to the extent
that distribution, licensing or sublicensing of such software is necessary to
the conduct of business of the Company. The Company has or has the right to use
all technical and descriptive materials to run its business in accordance with
its historical practices, except as would not have a Material Adverse Effect on
the Company. The Company Proprietary Software consists of: source and object
code embodied in magnetic media.
(ii) The Company has sole and exclusive rights, title and
interest in and to all intellectual property rights in the Company Proprietary
Software, including all worldwide copyrights, trade secrets, trademarks, moral
rights and proprietary and confidential information rights therein. The Company
Proprietary Software is free and clear of all liens, claims and encumbrances.
The use by the Company of the Company Licensed Software and the use and
distribution of the Company Proprietary Software in the manner currently used
and distributed by the Company complies with the terms of all contracts and
agreements to which the Company is a party or by which it is bound and is in
compliance with all applicable laws, regulations and codes of any foreign, U.S.,
state or local authority, including without limitation, all U.S. Export
Administration Regulations, except where such failure to comply would not have a
Material Adverse Effect. The Company has been granted under the license
agreements relating to the Company Licensed Software (the "the Company License
Agreements") valid and subsisting license rights with respect to all software
comprising the Company Licensed Software and such rights are sufficient in all
respects to conduct the business of the Company as presently conducted and as
currently proposed to be conducted. The Company is in compliance with each of
the terms and conditions of each of the Company License Agreements except to the
extent failure to so comply, individually or in the aggregate, would not have a
Material Adverse Effect on the Company. In the case of any commercially
available "shrink-wrap" software programs (such as Lotus 1-2-3 or Microsoft
Word), the Company has not made and is not, to the knowledge of the Company and
the Founders, using any unauthorized copies of any such software programs and,
to the knowledge of the Company, none of the employees, agents or
representatives of the Company have made or are using any such unauthorized
copies, except as would not have a Material Adverse Effect on the Company.
(iii) The Company Proprietary Software and such of the
Company Licensed Software as is bundled with or is otherwise an integral part of
the Company Proprietary Software does not infringe the patent, copyright or
trade secret rights or any other intellectual property right of any third party
which may exist anywhere in the world. To the Company's knowledge, there are no
threatened or pending claims or actions against it with respect to the Company
Proprietary Software.
(iv) The Company has not granted rights in the Company
Software to any third party other than as set forth on Schedule 2.10(b).
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(v) There have been no problems experienced by the Company
in the past twelve (12) months with respect to the Company Software, the related
computer hardware used by the Company in its operations or the provision of
services to the Company clients which have arisen outside the ordinary course of
business and would have a Material Adverse Effect on the Company.
(vi) The Company Proprietary Software is, and such of the
Company Licensed Software as is bundled with or is otherwise an integral part of
the Company Proprietary Software (to the knowledge of the Company and the
Founders, after due inquiry of the licensors and the Company Proprietary
Software developers of such Company Licensed Software) is, "Millennium
Compliant" (defined below). For the purposes of this Agreement, "Millennium
Compliant" means that such software accurately accepts and processes date/time
data (including, but not limited to, calculating, comparing, sorting and
sequencing) ("Processes") and returns and displays date/time data in a
consistent manner and without interruption regardless of dates used, whether
before, on or after January 1, 2000, and regardless of the date in time which
such Processes are performed, and such software accurately processes all leap
year calculations, including without limitation recognizing the year 2000 as a
leap year.
(vii) Prior to any export or re-export either directly or
indirectly by the Company of any software or other technical data, the Company
has first obtained the written approval or required export license for such
export or re-export from the United States Department of Commerce or any other
agency of the U.S. Government having jurisdiction over such export or re-export
unless the export or re-export of software or other technical data is covered by
a license exemption.
2.11 Litigation. There are no claims, actions, suits or investigations
----------
pending, or to the knowledge of the Company and the Founders, threatened,
against the Company or its business or affecting the Company Business Assets or
against the Founders.
2.12 Compliance with Laws; Permits. There is not outstanding or, to the
-----------------------------
knowledge of the Company and the Founders, threatened, any order or decree of
any court, governmental agency or arbitration tribunal against or involving the
Company or its business or the Company Business Assets. The Company is
currently, and has been at all times, in full compliance with all laws, rules,
regulations and licensing requirements of all federal, state, local and foreign
authorities applicable to the Company Business Assets and operations of its
business, except for failures to comply which would not, individually or in the
aggregate, have a Material Adverse Effect on the Company. The Company has
obtained all permits, certificates and licenses required for the conduct of its
business and the ownership of the Company Business Assets, all of which are
described on Schedule 2.12 (the "the Company Permits"). The Company is not in
-------------
violation of any of the Company Permits, and no proceedings are pending or, to
the knowledge of the Company and the Founders, threatened to revoke or limit any
the Company Permit.
2.13 Taxes.
-----
(a) The Company has properly completed and timely filed all federal,
state, local and foreign tax returns and reports required to be filed by it (the
"Tax Returns"). All Tax Returns are accurate, complete and correct as filed,
and the Company has paid in full or made adequate provision in the Company
Financial Statements for all amounts shown to be due thereon. the Company is
not delinquent in the payment of any tax assessment or other governmental charge
(including, without limitation, withholding taxes).
(b) The Company has not been notified by any governmental authority
that an audit or review of any tax matter is contemplated. The Company knows of
no tax deficiency or claim for additional taxes asserted or threatened to be
asserted against it by any taxing authority and the Company knows of no grounds
for any such assessment. No extension of time with respect to any date on which
a tax return was or is to be filed by the Company is in force, and no waiver or
agreement by the Company is in force for the extension of time for the
assessment or payment of any tax. For purposes of this Agreement, the term
"tax" includes all federal, state, local and foreign taxes or assessments,
including income, sales, gross receipts, excise, use, value added, royalty
franchise, payroll, withholding, property and import taxes and any interest or
penalties applicable thereto.
(c) The Company has not agreed to, and is not required to, make any
adjustment under Section 481(a) of the Code by reason of a change in accounting
method or otherwise.
(d) The Company is not and has never been a member of a consolidated
group or combined group or combined group of corporations.
2.14 Insurance. Schedule 2.14 describes all insurance policies maintained
--------- -------------
by the Company with respect to its business and the Company Business Assets.
Such policies are valid, binding and enforceable in accordance with their terms,
are in full force and effect, and all premiums due thereon have been paid.
2.15 Employment and Labor Matters. No employees of the Company have
----------------------------
entered into employment or other agreements regarding compensation, whether
written or oral, with the Company. No employees of the Company have been or are
represented by a union or other labor organization or covered by any collective
bargaining agreement. There is no unfair labor practice complaint, labor
organizational effort, strike, slowdown or similar labor matter pending or, to
the knowledge of the Company and the Founders, threatened against the Company or
its business. the Company is in compliance with all federal, state and local
laws and regulations respecting employment and employment practices, terms and
conditions of employment and wages and hours, and there is no unfair labor
practice complaint against the Company pending or, to the knowledge of the
Company and the Founders, threatened. Upon termination of the employment of any
employees, neither the Company nor the Parent nor the Surviving Corporation will
by reason of the Merger or anything done prior to the Effective Time be liable
to any of such employees for severance pay or any other payments (other than
accrued salary, vacation or sick pay in accordance with the Company's normal
policies). Set forth on Schedule 2.15 is a true and complete list of all
-------------
current directors, officers, employees or consultants of the Company, including,
in each case, name, current job title, base salary, bonus potential,
commissions, and termination obligations.
2.16 Employee Benefits. Except as set forth on Schedule 2.16, there are no
----------------- -------------
Plans, as defined below, contributed to, maintained or sponsored by the Company,
or to which the Company is obligated to contribute or with respect to which the
Company has any liability or potential liability, whether direct or indirect
(including all Plans contributed to, maintained or sponsored by each member of
the controlled group of companies, within the meaning of Sections
414(b), 414(c), and 414(m) of the Internal Revenue Code of 1986, as amended (the
"Code"), of which the Company is a member, to the extent the Company has any
potential liability with respect to such Plans). For purposes of this Agreement,
the term "Plans" shall mean: (a) employee benefit plans as defined in Section
3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), whether or not funded and whether or not terminated, (b) employment
agreements, and (c) personnel policies or fringe benefit plans, policies,
programs and arrangements, whether or not subject to ERISA, whether or not
funded, and whether or not terminated, including without limitation, stock
bonus, deferred compensation, pension, severance, bonus, vacation, travel,
incentive, and health, disability and welfare plans.
2.17 Absence of Changes. Except as disclosed on Schedule 2.17, since
------------------ -------------
January 7, 2000, the Company has conducted the operations of its business only
in the ordinary course, and has not:
(a) Suffered any damage to any of the Company Business Asset, whether
or not covered by insurance, except damage that could not reasonably be
expected, individually or in the aggregate, to have a Material Adverse
Effect on the Company;
(b) Sold or disposed of any of the Company Business Assets, except
such sales or dispositions made in the ordinary course of business that
would not, either individually or in the aggregate, have a Material Adverse
Effect on the Company;
(c) Made any general wage increase for its employees as a group other
than in the ordinary course of business;
(d) Amended or terminated any Company Contract;
(e) Incurred any obligation or liability, except normal trade or
business obligations incurred in the ordinary course of business;
(f) Introduced any new method of management, operations or accounting;
(g) Suffered any adverse change in the condition (financial or
otherwise), or any other event, that might reasonably be expected to have
a Material Adverse Effect on the Company; or
(h) Agreed, whether in writing or otherwise, to take any action
described in this Section 2.17.
2.18 Intentionally deleted.
2.19 Related Party Transactions. Except as set forth on Schedule 2.19,
-------------------------- -------------
the Company Contracts do not include any agreement with or any other commitment
to (a) any officer or director of the Company; (b) any person related by blood
or marriage to any such officer or director; or (c) any corporation,
partnership, trust or other entity in which the Company or any
such officer, director or related person has an equity or participating
interest, and no such other agreement or commitment exists.
2.20 Disclosure. No representation, warranty or statement made by the
----------
Company or the Founders in this Agreement or the exhibits or schedules hereto,
or in any financial statement, other written financial information or schedules,
or any other document, certificate or other instrument furnished or to be
furnished to Parent by or on behalf of the Company at or prior to the Closing
pursuant to this Agreement, contains or will contain any untrue statement of a
material fact, or omits to state any material fact necessary, in light of the
circumstances in which they were made, to make the statements contained herein
or therein not misleading. There is no event, fact or condition that has had,
or that reasonably could be expected to have, a Material Adverse Effect on the
Company, that has not been set forth in this Agreement or the Schedules hereto.
2.20 Subsidiaries. The Company has no wholly owned or partially owned
------------
subsidiaries.
2.21 Brokers' Fees. Neither the Company nor any of the Founders has
-------------
retained any broker, finder or agent, or has any liability or obligation, nor
will either of them, or anyone on their behalf, incur any liability or
obligation, to pay any fees, commissions or similar payments to any broker,
finder or agent with respect to the transactions contemplated by this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF PARENT AND MERGERSUB
Parent and Mergersub, jointly and severally, represent and warrant to the
Company as follows:
3.1 Organization and Good Standing. Each of Parent and its subsidiaries,
------------------------------
including Mergersub, is a corporation duly organized, validly existing and in
good standing under the laws of its respective jurisdiction and has all
requisite power and authority to own, operate and/or lease its assets and the
other properties owned or used in its business (including, without limitation,
intangible property) and to conduct the operations of its business as presently
conducted. Each of Parent and its subsidiaries is duly qualified to do
business as a foreign corporation and is in good standing in the jurisdictions
listed on Schedule 2.1, which are all the jurisdictions in which they are
------------
required to be so qualified other than such jurisdictions where the failure to
be so qualified would not have a material adverse effect on the Company on the
business or condition of Parent.
3.2 Authority. Each of Parent and Mergersub has all requisite power and
---------
authority to execute and deliver the Transaction Documents to which it is a
party and to perform the transactions contemplated thereby. The execution,
delivery and performance of the Transaction Documents, and the consummation of
the transactions contemplated thereby, have been duly and validly authorized by
all necessary corporate and stockholder action on the part of each of Parent and
Mergersub (as applicable). Each of the Transaction Documents to which Parent or
Mergersub is a party has been duly executed and delivered by such party and each
constitutes a valid and binding obligation of Parent and Mergersub, enforceable
against them in accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights and by general equitable principles (regardless of whether
enforceability is considered in a proceeding in equity or at law).
3.3 Capitalization. Immediately prior to the Effective Time, the
--------------
authorized capital stock of Parent consists of (a) 90,000,000 shares of common
stock, $0.001 par value, and 10,000,000 shares of Preferred Stock, $0.001 par
value, of which no shares of Preferred Stock are designated or issued and
outstanding. All of the issued and outstanding shares of capital stock of
Parent were issued in compliance with applicable federal and state securities
laws.
3.4 Effect of Agreement. Except for (i) the filing of the Merger Filings,
-------------------
(ii) such filings, consents, approvals as may be required under federal and
state securities laws, (iii) the filing with the Nasdaq National Market of an
application for listing of the Merger Shares, and (iv) such other consents,
authorizations, filings, approvals and registrations which, if not obtained or
made, could be expected to have a material adverse effect on Parent and its
subsidiaries, taken as a whole, the execution, delivery and performance of the
Transaction Documents to which Parent is a party do not and will not: (a)
conflict with the Certificate of Incorporation or Bylaws of Parent; (b) violate
any law or any rule or regulation of any governmental body or administrative
agency, or conflict with any judicial or administrative order or decree relating
to Parent or the Parent's assets, except for any such violations or conflicts
which would not, individually or in the aggregate, have a material adverse
effect on Parent and its subsidiaries, taken as a whole, or impair the ability
of Parent to consummate the transactions contemplated by this Agreement; (c)
constitute a breach or default under any instrument, contract or other agreement
to which the Parent is party to which it or any of its assets or properties is
bound or subject; (d) create any security interest, mortgage, lien, claim, or
encumbrance of any kind on any of the Parent's assets; or (e) require any
consent, notice to or filing with any governmental authority or administrative
agency.
3.5 Litigation. There are no claims, actions, suits or investigations
----------
pending, or to the knowledge of Parent, threatened, against Parent that in the
aggregate could have a material adverse effect upon the transactions
contemplated hereby or Parent and its subsidiaries, taken as a whole.
3.6 Disclosure. No representation, warranty or statement made by Parent
----------
in this Agreement or the exhibits or schedules hereto, contains or will contain
any untrue statement of a material fact, or omits to state any material fact
necessary, in light of the circumstances in which they were made, to make the
statements contained herein or therein not misleading.
3.7 Brokers' Fees. Parent has not retained any broker, finder or agent,
-------------
nor has any liability or obligation, nor will it, or anyone on its behalf, incur
any liability or obligation, to pay any fees, commissions or similar payments to
any broker, finder or agent with respect to the transactions contemplated by
this Agreement.
3.8 Merger Shares. The shares of Parent Common Stock to be issued in
-------------
connection with the Merger, when delivered hereunder, will be validly issued,
fully paid and nonassessable, and will be free of any liens or encumbrances.
3.9 Effect of Agreement. The execution, delivery and performance of the
--------------------
Transaction Documents to which the Parent and Merger Sub (as applicable) is a
party do not and will not: (a) conflict with the Certificate of Incorporation or
Bylaws of the Parent or Mergersub, as the case may be; or (b) violate any law or
any rule or regulation of any governmental body or administrative agency, or
conflict with any judicial or administrative order or decree relating to the
Parent or the Mergersub, except for any such violations or conflicts which would
not, individually or in the aggregate, have a material adverse effect on the
business, the assets, liabilities, results of operations or condition (financial
or otherwise) of the Parent or impair the ability of the Parent to consummate
the transactions contemplated by this Agreement.
3.10 Governmental Filings; No Violations. Except as disclosed on Schedule
------------------------------------
3.10, no notices, reports or other filings are required to be made by Parent and
its subsidiaries with, nor are any consents, registrations, approvals, permits
or authorizations required to be obtained by Parent and its subsidiaries from,
any government entity, in connection with the execution and delivery of the
Transaction Documents and the consummation by Parent and Mergersub of the
transactions contemplated herein, except those that the failure to make or
obtain are not, individually or in the aggregate, reasonably likely to prevent,
materially burden or materially impair the ability of Parent and Mergersub to
consummate the transactions contemplated by the Transaction Documents.
3.11 Financial Capability. As of the Closing Date, Parent and Mergersub
--------------------
have access to and will have sufficient funds to purchase the Company Stock and
satisfy all of their respective obligations under the Transaction Documents and
the transactions contemplated herein. Parent's and Mergersub's obligations
hereunder are not subject to any conditions regarding Parent's or Mergersub's
ability to obtain financing for the consummation of the transactions
contemplated herein.
3.12 Securities Act. Parent and Mergersub are acquiring the Company Stock
---------------
solely for the purpose of investment and not with a view to, or for sale in
connection with, any distribution thereof in violation of the Securities Act.
Parent acknowledges that the Company Stock is not registered under the
Securities Act or any applicable state securities law, and that such Company
Stock may not be sold or otherwise transferred except pursuant to the
registration provisions of the Securities Act or an applicable exemption
therefrom and pursuant to any applicable state and other securities law.
ARTICLE IV
COVENANTS
4.1 Conduct of Business. Between the date of this Agreement and the
-------------------
Effective Time, the Company and the Founders shall:
(a) Conduct the operations of the Company's business in the normal and
customary manner in the ordinary course of business;
(b) Maintain the Company Assets in good operating order, repair and
condition;
(c) Keep in full force and effect the insurance described in Section
2.15;
(d) Perform all of its obligations under all of the Company Contracts
and not amend any provision thereof other than amendments that involve a
commitment or expenditure, or revenue to the Company, of less than $500.00;
(e) Use its best efforts to preserve the Company's organization intact
and maintain its relationships with its employees, suppliers and customers;
(f) Promptly advise Parent of any adverse change in the condition
(financial or otherwise) of the Company's business or the Company Business
Assets;
(g) Promptly advise Parent of the occurrence of any event or
circumstance which affects the consummation of the transactions
contemplated by this Agreement or which, if in existence on the date of
this Agreement, would have been required to have been disclosed in a
Schedule to this Agreement;
(h) Not create or permit to exist any security interest, mortgage,
lien, claim, or encumbrance of any kind with respect to any of the Company
Business Assets;
(i) Not sell or dispose of any of the Company Business Assets, except
in the ordinary course of business of the Company's business;
(j) Promptly advise Parent of any change in the list of employees
referred to in Section 2.16 or in the compensation payable to any such
employee;
(k) Not make any capital improvement or expenditure without the prior
consent of Parent, other than improvements or expenditures in the ordinary
course of business in amounts of less than $500.00; and
(l) Maintain and collect the Company Receivables and extend credit
terms to its customers in the ordinary course of business consistent with
past practices.
4.2 Access and Information. The Company and the Founders shall permit
----------------------
Parent and its counsel, accountants and other representatives full access during
normal business hours to all the properties, assets, books, records, agreements
and other documents of the Company. the Company shall furnish to Parent and its
representatives all information concerning the Company Business Assets or the
Company's business as Parent may request. the Company shall permit and
facilitate communications between Parent and the Company's suppliers, customers,
landlords and other persons having relationships with the Company's business.
4.3 No Other Solicitations. Until the earlier of the Effective Time or
----------------------
the termination of this Agreement, the Company and the Founders shall not, and
the Company and the Founders shall use their best efforts to cause each of their
respective officers, directors, employees, representatives and agents or
affiliates of such officers, directors, employees, representatives and agents
not to, directly or indirectly, solicit, initiate or encourage any offer,
proposal or inquiry from, or engage in any discussions or negotiations with, any
person regarding the sale or lease of the capital stock of the Company, its
business, or any of the Company Business Assets. The Company shall immediately
notify Parent of, and shall disclose to Parent all details of, any inquiries,
discussions or negotiations of the nature described above.
4.4 Shareholders' Consent.
---------------------
(a) The Company shall, acting through its Board of Directors and in
accordance with the Illinois BCA, as soon as practicable, obtain the
affirmative vote at a meeting of the Shareholders duly noticed and held or
solicit and obtain written consents of the required number of the Shareholders
for the purpose of adopting and approving this Agreement and the approval of
the Merger in accordance with the provisions of the Company Articles of
Incorporation and the Illinois BCA (the "Shareholders' Vote"). In connection
with the Shareholders' Vote, the Company, acting through its Board of Directors,
shall recommend that the Shareholders of the Company consent to the adoption of
this Agreement and the approval of the Merger, shall prepare and send any
information required to be provided to the Shareholders in accordance with
applicable law and not include in the materials sent to the Shareholders any
false or misleading statement or omit to state any fact required to be stated in
order to make the statements therein not false or misleading, and shall
otherwise use its best efforts to obtain the Shareholders' Vote and any other
consents or approvals from the Shareholders necessary to consummate the
transactions contemplated herein.
(b) Each of the Founders agrees to (i) vote all shares that are
beneficially owned by him or her, or for which he or she has voting authority,
in favor of the adoption of this Agreement and the approval of the Merger and
(ii) otherwise use his or her best efforts to obtain the Shareholders' Vote.
4.5 Agreements. The Company shall use all reasonable efforts to deliver to
----------
the Parent prior to the Closing Date all agreements of the Shareholders required
to be executed by them under this Agreement.
4.6 Further Assurances. From and after the Closing Date, the parties
------------------
shall take such steps and execute such documents, and instruments as may be
reasonably required to make effective the transactions contemplated hereby.
4.7 Confidentiality. In recognition of the confidential nature of certain
---------------
of the information which will be provided to any party by the other parties,
each of Parent and its subsidiaries, the Company and the Founders agrees to
retain in confidence, and to require its directors, officers, employees,
consultants, professional representatives and agents (collectively, its
"Representatives") to retain in confidence all information transmitted or
disclosed to it by any
other party, and further agrees that it shall not use for its own benefit (other
than in connection with the transactions contemplated by this Agreement) and
shall not use or disclose to any third party, or permit the use or disclosure to
any third party of, any information obtained from or revealed by any other
party, except that each of Parent and its subsidiaries, the Company and the
Founders may disclose the information to those of its Representatives who need
the information for the proper performance of their assigned duties with respect
to the consummation of the transactions contemplated hereby. In making such
information available to its Representatives, each of Parent, the Company and
the Founders shall take all precautions to ensure that its Representatives use
the information only as permitted hereby. Notwithstanding anything to the
contrary in the foregoing provisions, such information may be disclosed: (a)
where it is legally necessary, to any regulatory authorities or governmental
agencies; (b) if it is required by court order or decree or applicable law; (c)
if it is ascertainable or obtained from public or published information; (d) if
it is received from a third party not known to the recipient to be under an
obligation to keep such information confidential; or (e) if the recipient can
demonstrate that such information was in its possession prior to disclosure
thereof in connection with this Agreement. If any party is required to make
disclosure of any such information by operation of law, such disclosing party
will give the other parties prior notice of the making of such disclosure and
will use all reasonable efforts to afford such other parties an opportunity to
contest the making of such disclosure. In the event that the Closing does not
occur, each of Parent, the Company and the Founders shall immediately deliver,
or cause to be delivered, to the other (without retaining any copies thereof)
any and all documents, statements or other written information obtained from the
other that contain confidential information.
4.8 Prior Agreement. Each party acknowledges that Parent and the company
---------------
have executed an Agreement dated November 12, 1999, which contains certain no-
shop and confidentiality provisions, which Agreement shall continue in full
force and effect in accordance with its terms.
ARTICLE V
CONDITIONS PRECEDENT TO PARENT'S AND
MERGERSUB'S OBLIGATIONS
The obligations of Parent and Mergersub to consummate the transactions
contemplated by this Agreement are subject to the satisfaction of the following
conditions on or before the Effective Time:
5.1 Representations, Warranties and Covenants. The representations and
-----------------------------------------
warranties of the Company and the Founders contained in this Agreement shall
have been true and correct on date of this Agreement and shall be true and
correct as of the Effective Time as though made on and as of the Effective Time,
and the Company and the Founders shall have duly performed and complied with all
covenants and obligations required by this Agreement to be performed or complied
with by it or them on or prior to the Closing.
5.2 Absence of Litigation. As of the Effective Time, no action or
---------------------
proceeding shall be pending or, in the reasonable opinion of the Company or the
Founders, threatened by or before any court or other governmental body or agency
seeking to restrain, prohibit or invalidate the transactions contemplated by
this Agreement or which would adversely affect the right of Parent to own,
operate or control the Company Business Assets or the Company's business after
the Effective Time.
5.3 Absence of Change. Between the date of this Agreement and the
-----------------
Effective Time, no adverse change shall have occurred in the business,
operations or financial or other condition of the Company, its business or the
Company Business Assets, nor shall there have occurred any casualty loss or
destruction of, or damage to, any of the Company Assets.
5.4 Consents and Approvals. All (a) the Company Required Consents, (b)
----------------------
licenses, (c) other orders or notifications of, or registrations, declarations
or filings with, or expiration of waiting periods imposed by, any applicable
governmental or judicial authority and (d) consents, approvals, authorizations
or notifications of any other third parties, all as required in connection with
consummation of the transactions contemplated by this Agreement, including the
operation of the Company's business by Parent, shall have been made or obtained
or shall have occurred.
5.5 Shareholders' Vote; Dissenting Shares. This Agreement and the Merger
-------------------------------------
shall have received the Shareholders' Vote and the number of dissenting shares
shall not exceed 2% of the number of outstanding shares of the Company Stock as
of the Effective Time.
5.6 Compliance Certificate. Each of the Company and the Founders shall
----------------------
have delivered to Parent and Mergersub a certificate (without qualification as
to knowledge or materiality or otherwise except as may be set forth in the
representations and warranties themselves) to the effect that each of the
conditions specified in Sections 5.1 through 5.5 is satisfied in all respects.
5.7 Secretary's Certificate. The Company shall have delivered to Parent
-----------------------
and Mergersub a certificate of the Secretary of the Company, dated as of the
Effective Time, in form
and substance reasonably satisfactory to Parent and Mergersub, certifying (i)
the names of its officers authorized to sign this Agreement, the certificates
and the other documents and instruments delivered pursuant to this Agreement by
the Company or any of its officers, together with true signatures of such
officers; (ii) that the copies of the Articles of Incorporation and Bylaws of
the Company attached thereto are true, correct and complete; (iii) that the
resolutions of the Board of Directors of the Company attached thereto evidencing
the approval of this Agreement and the transactions contemplated herein were
duly adopted, have not been amended or rescinded and are in full force and
effect; and (iv) that the resolutions of the Shareholders attached thereto
evidencing approval of the Agreement and the transactions contemplated herein
were duly adopted, have not been rescinded or amended and are in full force and
effect; (v) that notice of the action of the Shareholders, if taken by written
consent of fewer than all of the Shareholders, has been sent to the remaining
Shareholders in accordance with the applicable provisions of the Illinois BCA;
and (vi) that the number of dissenting shares does not exceed two percent (2%)
of the number of outstanding shares of the Company as of the Effective Time.
5.8 Legal Opinion. Parent and Mergersub shall have received an opinion of
-------------
Xxxxxxxx & Xxx LLC, counsel to the Company, dated as of the Effective Time, in
the form of Exhibit B attached hereto.
---------
5.9 Inventions Agreements. Parent shall have received a Non-Disclosure,
---------------------
and Invention and Non-Competition Agreement in the form attached to the
Employment Agreements, duly executed by all employees of the Company.
5.10 Shareholder Investment Representation Letter. Parent shall have
--------------------------------------------
received a Shareholder Investment Representation Letter in the form of Exhibit C
---------
attached hereto, duly executed by each of the Shareholders.
5.11 Escrow Agreement. Parent shall have received the Escrow Agreement,
----------------
duly executed by the Shareholder Representative and each of the Shareholders.
5.12 Mergersub Stock Certificate. Parent shall have received a
---------------------------
certificate evidencing one (1) share of the Company Common Stock, dated the
Effective Time and issued in the name of Parent.
5.13 Resignations. The Parent shall have received resignations, duly
------------
executed, by all officers and directors of the Company, of their respective
positions with the Company, effective as of the Effective Time.
5.14 Intentionally deleted.
---------------------
5.15 Employment / Consulting Agreements. Parent shall have received
----------------------------------
employment and/or consulting agreement in forms reasonably satisfactory to the
Parent (the "Employment Agreements"), duly executed by each of the Founders and
such other individuals as Parent may request.
5.16 Registration Rights Agreement. Parent shall have received a
-----------------------------
Registration Rights Agreement by and between the Parent and the Shareholders in
the form of Exhibit D attached hereto (the "Registration Rights Agreement"),
---------
duly executed by all of the Shareholders.
5.17 Stock Powers. Parent shall have received executed stock powers from
------------
each of the Shareholders with respect to the Escrowed Shares.
5.18 Surrendered Stock Certificates. Parent shall have received stock
------------------------------
certificates representing all the issued and outstanding Company Stock, duly
endorsed by the Shareholders.
5.19 Listing of Merger Shares. The Merger Shares shall have been approved
------------------------
for listing and quotation on the Nasdaq Stock Market.
5.20 Securities Laws. Parent shall have received all federal or state
---------------
securities permits, approvals or other approvals necessary to issue shares of
Parent Common Stock pursuant to the Merger.
5.21 Other Documents. Parent shall have received such other agreements,
---------------
documents, and instruments as Parent has reasonably requested to effect and
evidence the consummation of the transactions contemplated by this Agreement.
ARTICLE VI
CONDITIONS PRECEDENT TO THE COMPANY'S AND
THE FOUNDERS' OBLIGATIONS
The obligations of the Company and the Founders to consummate the
transactions contemplated by this Agreement are subject to the satisfaction of
each of the following conditions on or before the Effective Time:
6.1 Representations, Warranties and Covenants. The representations and
-----------------------------------------
warranties of Parent and Mergersub contained in this Agreement shall have been
true and correct on the date of this Agreement, and shall be true and correct as
if the Effective Time as though made on and as of the Effective Time, and Parent
and Mergersub shall have duly performed and complied with all covenants and
obligations required by this Agreement to be performed or complied with by it on
or before the Closing.
6.2 Compliance Certificate. Each of Parent and Mergersub shall have
----------------------
delivered to the Company a certificate (without qualification as to knowledge or
materiality or otherwise except as may be set forth in the representations and
warranties themselves) to the effect that each of the conditions specified in
Sections 6.1, 6.3, 6.5 and 6.6 is satisfied in all respects.
6.3 Absence of Litigation. As of the Effective Time, no action or
---------------------
proceeding shall be pending or, to the knowledge of Parent, threatened by or
before any court or other government body or agency seeking to restrain,
prohibit or invalidate the transactions contemplated by this Agreement or which
would adversely affect the right of Parent to own, operate or control the
Company Business Assets or the Company's business after the Effective Time or
otherwise affect Parent's ability to consummate the transactions contemplated by
this Agreement.
6.4 Secretary's Certificates. The Company shall have received a
------------------------
certificate of the Secretary of each of the Parent and Mergersub, dated as of
the Effective Time, in form and substance reasonably satisfactory to the
Company, certifying (i) the names of its officers authorized to sign this
Agreement, the certificates and the other documents and instruments delivered
pursuant to this Agreement by Parent or Mergersub, as the case may be, or any of
its officers, together with true signatures of such officers; (ii) that the
copies of the Certificate of Incorporation and Bylaws attached thereto are true,
correct and complete; and (iii) that the resolutions of the Board of Directors
attached thereto evidencing the approval of this Agreement and the transactions
contemplated herein were duly adopted, have not been amended or rescinded and
are in full force and effect;
6.5 Absence of Change. Between the date of this Agreement and the
------------------
Effective Time, no adverse change shall have occurred in the business,
operations or financial or other condition of Parent that would affect Parent's
ability to consummate the transactions contemplated by this Agreement.
6.6 Consents and Approvals. All licenses, other orders or notifications
----------------------
of, or registrations, declarations or filing with, or expiration of waiting
periods imposed by, any applicable governmental or judicial authority and
consents, approvals, authorizations or notifications of any other third parties,
all as required in connection with consummation of the transactions contemplated
by this Agreement, including the operation of the Company's business by Parent,
shall have been made or obtained or shall have occurred. That the resolutions
of Parent and Mergersub attached thereto evidencing approval of the Agreement
and the transactions contemplated herein were duly adopted, have been rescinded
or amended and are in full force and effect.
6.7 Legal Opinion. The Company shall have received an opinion of
-------------
Xxxxxxxxx & Xxxxx PLLC, counsel to Parent, dated as of the Effective Time, in
the form of Exhibit E attached hereto.
---------
6.8 Escrow Agreement. The Company shall have received the Escrow
----------------
Agreement, duly executed by the Parent and the Escrow Agent.
6.9 Employment Agreements. The Company shall have received the
---------------------
Compensation Agreements, duly executed by Parent.
6.10 Shareholder Agreements. The Company shall have received the
----------------------
Shareholder Agreements, duly executed by Parent.
6.11 Registration Rights Agreement. The Company shall have received the
-----------------------------
Registration Rights Agreement, duly executed by Parent.
6.12 Other Documents. The Company shall have received such other
---------------
agreements, documents, and instruments as the Company has reasonably requested
to effect and evidence the consummation of the transactions contemplated by the
Agreement.
ARTICLE VII
INDEMNIFICATION
7.1 Indemnification. The Shareholders, jointly and severally (including
---------------
the Founders), shall, up to the number of the Escrowed Shares, indemnify the
Surviving Corporation and the Parent (the "Indemnified Persons") in respect of,
and hold the Indemnified Persons harmless against, any and all debts,
obligations and other liabilities, monetary damages, fines, fees, penalties,
interest obligations, deficiencies, losses and expenses (including without
limitation amounts paid in settlement, interest, court costs, costs of
investigators, reasonable fees and expenses of attorneys, accountants, financial
advisors and other experts, and other expenses of litigation) incurred or
suffered by the Indemnified Persons ("Damages"):
(i) resulting from, relating to or constituting any (1)
misrepresentation, (2) breach of warranty or (3) failure to perform any
covenant or agreement of the Company or the Founders contained in this Agreement
or the certificate delivered pursuant to Section 5.6; or
(ii) resulting from any failure of any of the Shareholders to
have good, valid and marketable title to the issued and outstanding the Company
Stock held by any such Shareholder, free and clear of all liens, claims,
pledges, options, adverse claims or charges of any nature whatsoever; or
(iii) resulting from any claim by a Shareholder or former
security holder of the Company, or any other person, firm, corporation or
entity, seeking to assert, or based upon: (A) ownership or a right to ownership
of any shares of capital stock of the Company which is claimed to have arisen
prior to the Effective Time; (B) any rights of a shareholder of the Company
(other than the right to receive the Merger Consideration pursuant to this
Agreement or appraisal rights under the applicable provisions of the Illinois
BCA, including, without limitation, rights with respect to any option,
preemptive rights or rights to notice or to vote, in each case with respect to
capital stock of the Company owned or claimed to have been owned prior to the
Effective Time; (C) any rights under the Articles of Incorporation or Bylaws of
the Company as in effect at any time prior to the Effective Time; or (D) any
claim that his, her or its shares of the Company were wrongfully repurchased by
the Company prior to the Effective Time.
7.2 Method of Asserting Claims.
--------------------------
(a) All claims for indemnification as specified in Section 7.1
("Claims") by an Indemnified Person pursuant to this Article VII shall be made
in accordance with the provisions of this Agreement and the Escrow Agreement.
(b) If a third party asserts that an Indemnified Person is liable to
such third party for a monetary or other obligation which may constitute or
result in Damages for which such Indemnified Person may be entitled to
indemnification pursuant to this Article VII, then the Indemnified Person shall
give prompt written notification of the assertion to the Shareholder
Representative. If within thirty (30) days after delivery of such notification,
the Shareholder
Representative has not contested or otherwise notified the indemnified Person of
any objection to the assertion and such Indemnified Person reasonably determines
that it has a valid business reason to fulfill such obligation, then (i) such
Indemnified Person shall be entitled to satisfy such obligation, without prior
notice to or consent from the Shareholder Representative, (ii) such Indemnified
Person may make a Claim for indemnification pursuant to this Article VII in
accordance with the provisions of the Escrow Agreement (if applicable) and this
Article VII, and (iii) such Indemnified Person shall be reimbursed in accordance
with the provisions of the Escrow Agreement (if applicable) and this Article
VII, for any such Damages for which it is entitled to indemnification pursuant
to this Article VII (subject to the right of the Shareholder Representative to
dispute the Indemnified Person's entitlement to indemnification under the terms
of the Escrow Agreement (if applicable) and this Article VII.
(c) The Indemnified Person shall give prompt written notification to
the Shareholder Representative of the commencement of any action, suit or
proceeding relating to a third party claim for which indemnification pursuant to
this Article VII may be sought; provided, however, that no delay on the part of
the Indemnified Person in notifying the Shareholder Representative shall relieve
the Shareholders of any liability or obligation hereunder except to the extent
of any damage or liability caused by or arising out of such failure. Within
thirty (30) days after delivery of such notification, the Shareholder
Representative may, upon written notice thereof to the Indemnified Person,
assume control of the defense of such action, suit or proceeding provided the
Shareholder Representative acknowledges in writing to the Indemnified Person
that any damages, fines, costs or other liabilities that may be assessed against
the Indemnified Person in connection with such action, suit or proceeding
constitute Damages for which the Indemnified Person shall be entitled to
indemnification pursuant to this Article VII. If the Shareholder Representative
does not so assume control of such defense, the Indemnified Person shall control
such defense. The party not controlling such defense may participate therein at
its own expense; provided that if the Shareholder Representative assumes control
of such defense and the Indemnified Person reasonably concludes that the
indemnifying parties and the Indemnified Person have conflicting interests or
different defenses available with respect to such action, suit or proceeding,
the reasonable fees and expenses of counsel to the Indemnified Person shall be
considered "Damages" for purposes of this Agreement. The party controlling such
defense shall keep the other party advised of the status of such action, suit or
proceeding and the defense thereof. The Indemnified Person shall not agree to
any settlement of such action, suit or proceeding without the prior written
consent of the Shareholder Representative, which shall not be unreasonably
withheld. The Shareholder Representative shall not agree to any settlement of
such action, suit or proceeding without the prior written consent of the
Indemnified Person, which shall not be unreasonably withheld.
7.3 Satisfaction and Treatment of Indemnity Payments. In the event that
------------------------------------------------
the Shareholders are required to provide indemnification hereunder to the
Indemnified Persons, such indemnification obligations shall be satisfied
initially by the delivery of the Escrowed Shares (with each share for this
purpose valued at the Average Stock Price in accordance with the terms of this
Agreement and the Escrow Agreement. Any payment so made to an Indemnified
Person pursuant to this Article VII or the Escrow Agreement shall be treated as
a reduction in the Merger Consideration.
7.4 Limitation. Notwithstanding anything to the contrary herein, with
----------
respect to Claims other than claims based on fraud or willful misrepresentation,
for which the liability of the Shareholders shall not be limited in amount or to
the Escrow, the sole and exclusive remedy for indemnification Claims by the
Parent or Mergersub under this Article VII is the Merger Consideration received
by the Shareholders. No Shareholder shall have any right of contribution
against the Company or the Surviving Corporation with respect to any breach by
the Company of any of the representations, warranties, covenants or agreements.
ARTICLE VIII Intentionally Deleted
ARTICLE IX
TERMINATION
9.1 Termination. This Agreement may be terminated at any time prior to
-----------
the Effective Time:
(a) By the mutual written consent of all of the parties to this
Agreement;
(b) By Parent (if it is not then in breach of any term of this
Agreement), if the Company or the Founders: (i) fail(s) to perform in any
material respect their agreements contained herein required to be performed on
or prior to the Effective Time, or (ii) materially breaches any of their
representations or warranties contained herein, which failure or breach is not
cured within ten (10) days after Parent shall have notified the Company and the
Founders of its intent to terminate this Agreement pursuant to this
subparagraph;
(c) By the Company or the Founders (if they are not then in breach of
any term of this Agreement), if Parent: (i) fails to perform in any material
respect its agreements contained herein required to be performed on or prior to
the Effective Time, or (ii) materially breaches any of its representations or
warranties contained herein, which failure or breach is not cured within ten
(10) days after the Company and the Founders have notified Parent of their
intent to terminate this Agreement pursuant to this subparagraph;
(d) By any of the parties, if there is any order, writ, injunction or
decree of any court or governmental or regulatory agency binding on such party
which prohibits or restrains such party from consummating the transactions
contemplated hereby; or
(e) By either the Parent or the Company, if the requisite
Shareholders' Vote is not obtained; or
(f) By any of the parties, if the Closing has not occurred by January
31, 2000, for any reason other than delay or nonperformance of the party seeking
such termination.
9.2 Effect on Obligations. Termination of this Agreement pursuant to this
---------------------
Article IX shall terminate all obligations of the parties hereunder, except for
the obligations under Sections
10.1 (with respect to expenses), 10.3 (with respect to publicity), and 4.7 (with
respect to confidentiality); provided, however, that termination pursuant to
subparagraphs (b) or (c) of Section 9.1 hereof shall not relieve the defaulting
or breaching party from any liability to the other parties hereto.
ARTICLE X
MISCELLANEOUS
10.1 Expenses. All costs and expenses incurred in connection with this
--------
Agreement and the transactions contemplated hereby shall be paid by the party
incurring such expense, whether or not the Merger is consummated; provided,
--------
however, that if the Merger is consummated, the reasonable legal fees and
-------
expenses incurred by the Company which are solely and directly related to the
Merger, up to a maximum of $17,500, shall be paid by Parent; any additional
legal fees and expenses in excess of $17,500, and any investment banking,
accounting and other out-of-pocket fees and expenses incurred by the Company and
all other expenses of the Company or the Shareholders of any kind shall be paid
directly by the Shareholders, and neither the Parent nor the Surviving
Corporation shall have any liability or obligation therefor.
10.2 Survival of Representations and Covenants. The representations,
-----------------------------------------
warranties and covenants of the Company and the Shareholders set forth in this
Agreement (the "Representations") shall survive the Closing and the consummation
of the transactions contemplated by this Agreement and continue until thirty
months following the Effective Time (the "Termination Date"). If notice of a
Claim is given in accordance with the Escrow Agreement or Article VII before the
Termination Date, then the Representation applicable to such Claim shall survive
until, but only for purposes of, the resolution of such Claim. Notwithstanding
the foregoing, with respect to any Claims for indemnification based on, arising
from, resulting from or related to fraud or willful misrepresentation, the
Representations shall survive the Termination Date and shall remain in force and
effect for the duration of the applicable statute of limitations. All
representations and warranties of Parent or Mergersub contained in this
Agreement shall terminate as of the Effective Time. All covenants and other
agreements of Parent shall survive the Closing until fulfilled or waived.
10.3 Publicity. No party to this Agreement shall issue any press release
---------
or make any public disclosure relating to the subject matter of this Agreement
or the terms hereof or the existence of this Agreement without the prior written
approval of the Parent. Any press releases or other announcements concerning
the transactions contemplated by this Agreement shall be approved by the Parent
in writing prior to their issuance.
10.4 Notices. All notices, requests, demands, claims, and other
-------
communications hereunder shall be in writing. Any notice, request, demand,
claim, or other communication hereunder shall be deemed duly delivered four (4)
business days after it is sent by registered or certified mail, return receipt
requested, postage prepaid, one (1) business day after it is sent via a
reputable nationwide overnight courier service, in each case to the intended
recipient as set forth below:
If to the Company: Copy to:
----------------- -------
Intralogix, Inc. Xxxxxxx & Xxx, LLC
000 Xxxxx Xxxxxx 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000 Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxx Attn: Xxxxxxx X. Xxx
If to the Parent: Copy to:
----------------- --------
XxxXxxxx.xxx, Inc. Xxxxxxxxx & Xxxxx PLLC
0000 XxXxxxxxx Xxxxxxx, Xxxxx 000 3110 Xxxxxxx Mill Road, Suite 100
Morrisville, North Carolina 27560 Xxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxx Attn: Xxxxx X. Xxxxxxxx
If to Mergersub: Copy to:
--------------- -------
Lujack Subsidiary, Inc. Xxxxxxxxx & Xxxxx PLLC
0000 XxXxxxxxx Xxxxxxx, Xxxxx 000 3110 Xxxxxxx Mill Road, Suite 100
Morrisville, North Carolina 27560 Xxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxx Attn: Xxxxx X. Xxxxxxxx
Any party to this Agreement may give any notice, request, demand, claim, or
other communication hereunder using any other means (including personal
delivery, expedited courier, messenger service, telecopy, telex, ordinary mail,
or electronic mail), but no such notice, request, demand, claim, or other
communication shall be deemed to have been duly given unless and until it
actually is received by the party for whom it is intended. Any party may change
the address to which notices, requests, demands, claims, and other
communications hereunder are to be delivered by giving the other parties notice
in the manner set forth in this Agreement.
10.5 Tax Matters. Although the parties acknowledge and agree that the
-----------
Merger is intended to qualify as a "tax free" exchange under Section 368 of the
Code, all parties to this Agreement acknowledge and agree that no representation
or warranty has been or is being made by Parent to any party or by Parent's
officers, employees, agents, accountants or attorneys, with respect to the
federal income or other tax consequences of the transactions contemplated by
this Agreement and the Merger or that such transactions are or will be "tax
free".
10.6 Governing Law. This Agreement shall be governed by the laws of the
-------------
State of North Carolina applicable to agreements made and to be performed
entirely within such state.
10.7 Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
10.8 Assignment. This Agreement shall be binding upon and inure to the
----------
benefit of the parties hereto and their respective successors and permitted
assigns. This Agreement may not be assigned by any of the parties hereto
without the prior written consent of all other parties hereto, and any purported
assignment without such consent shall be void.
10.9 Headings. The Article and Section headings contained in this
--------
Agreement are solely for the purpose of reference, are not part of this
Agreement and shall not in any way affect the meaning or interpretation of this
Agreement.
10.10 Amendments. Any waiver, amendment, modification or supplement of or
----------
to any term or condition of this Agreement shall be effective only if in writing
and signed by a majority in interest of the Shareholders and by all parties
hereto, and the parties hereto waive the right to amend the provisions of this
Section orally. Any amendment effected subsequent to the Shareholders' Consent
shall be subject to the restrictions contained in the Delaware General
Corporation Law and the Illinois BCA to the extent applicable. No waiver of any
default, misrepresentation, or breach of warranty or covenant hereunder, whether
intentional or not, shall be deemed to extend to any prior or subsequent
default, misrepresentation, or breach of warranty or covenant hereunder or
affect in any way any rights arising by virtue of any prior or subsequent such
occurrence.
10.11 Severability. In the event that any provision in this Agreement
------------
shall be determined to be invalid, illegal or unenforceable in any respect, the
remaining provisions of this Agreement shall not be in any way impaired, and the
illegal, invalid or unenforceable provision shall be fully severed from this
Agreement and there shall be automatically added in lieu thereof a provision as
similar in terms and intent to such severed provision as may be legal, valid and
enforceable.
10.12 Entire Agreement. This Agreement, and the Schedules and Exhibits
----------------
hereto, constitute the entire Agreement between the parties hereto pertaining to
the subject matter hereof, and supersede all prior and contemporaneous
agreements and understandings between the parties with respect to such subject
matter.
10.12 Risk of Loss. The risk of loss, damage or condemnation of any of the
------------
Company Business Assets from any cause whatsoever shall be borne by the Company
at all times prior to the Effective Time.
10.13 Best Efforts. Each party agrees to use its best efforts to satisfy
------------
the conditions to the Closing set forth in this Agreement and otherwise to
consummate the transactions contemplated by this Agreement.
10.14 Letter of Intent. This Agreement supersedes and replaces the letter
----------------
agreement between the Parent and the Company dated December 23, 1999, which
shall be of no further force and effect.
[Remainder of this page intentionally left blank]
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be signed by its duly authorized officer as of the date first above written.
PARENT:
XXXXXXXX.XXX, INC.
By: _____________________________________
M. Xxxxx Xxxxxxx
President and Chief Executive Officer
MERGERSUB:
LUJACK SUBSIDIARY, INC.
By: _____________________________________
M. Xxxxx Xxxxxxx
President and Chief Executive Officer
THE COMPANY:
INTRALOGIX, INC.
By: _____________________________________
Xxxx X. Xxxxx
President
FOUNDERS:
_________________________________________
Xxxx X. Xxxxx
_________________________________________
Xxxx X. Xxxxx
_________________________________________
Xxxxxxx X. Xxxxx
SHAREHOLDER REPRESENTATIVE:
_________________________________________
Xxxx X. Xxxxx
