Exhibit 2.1
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (this "Agreement") is made
and entered into as of June 10, 1999, by and among ▇▇▇▇▇.▇▇▇, Inc., a Delaware
corporation ("▇▇▇▇▇.▇▇▇"), ▇▇▇▇▇.▇▇▇ Acquisition Corp., a Delaware corporation
and a wholly-owned subsidiary of ▇▇▇▇▇.▇▇▇ ("AAC"), VantageNet, Inc., a
Minnesota corporation ("VantageNet"), and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇.
▇▇▇▇, the sole stockholders of VantageNet (collectively, the "Stockholders").
RECITALS
WHEREAS, ▇▇▇▇▇.▇▇▇, AAC, VantageNet and the Stockholders each have
determined to engage in the transactions contemplated hereby, pursuant to which
(i) AAC will merge with and into VantageNet and (ii) each issued and outstanding
share of capital stock of VantageNet shall be converted into cash and shares of
▇▇▇▇▇.▇▇▇ capital stock in the manner herein described;
WHEREAS, the respective Boards of Directors of VantageNet, ▇▇▇▇▇.▇▇▇
and AAC, and the Stockholders and ▇▇▇▇▇.▇▇▇, as the sole stockholder of AAC,
have each approved this Agreement and the transactions contemplated hereby;
WHEREAS, following the Closing (as defined below), ▇▇▇▇▇.▇▇▇ wishes
to engage each of the Stockholders as an employee of ▇▇▇▇▇.▇▇▇ or AAC and each
of the Stockholders desires to be so employed; and
WHEREAS, the parties intend for the transactions contemplated by
this Agreement to qualify as a plan of reorganization in accordance with the
provisions of Section 368(a) of the Internal Revenue Code of 1986, as amended
(the "Code").
NOW, THEREFORE, in consideration of the foregoing and the mutual
representations, warranties, covenants and agreements set forth herein, the
parties agree as follows:
ARTICLE 1
THE MERGER
1.1 Surviving Corporation; Effective Time.
(a) At the Closing (as defined in Section 7.1) and subject to
the terms and conditions of this Agreement, AAC shall be merged with and into
VantageNet in accordance with the Delaware General Corporation Law (the "DGCL")
and the Minnesota Business Corporation Act ("MBCA"),whereupon the separate
existence of AAC shall cease, and VantageNet shall be the surviving corporation.
(b) Simultaneously with the Closing, VantageNet and AAC shall
file a certificate of merger (the "Certificate of Merger") in the office of the
Secretary of State of the State of Delaware in accordance with the DGCL and in
the office of the Secretary of State of the
State of Minnesota. The Merger shall become effective at such time as the
Certificate of Merger is duly filed in both Delaware and Minnesota (the date of
such filings being hereinafter referred to as the "Effective Date" and the time
of such filings being hereinafter referred to as the "Effective Time"). It is
the intention of the parties that this Agreement shall constitute an agreement
of merger under the DGCL and the MBCA. From and after the Effective Time,
VantageNet shall possess all the rights, privileges, powers and franchises and
be subject to all of the restrictions, disabilities and duties of both
VantageNet and AAC, as provided under the DGCL and the MBCA.
1.2 Certificate of Incorporation and Bylaws. The Certificate of
Incorporation and Bylaws of VantageNet following the Closing shall be the
Certificate of Incorporation and Bylaws of VantageNet as in effect immediately
prior to the Effective Time, until thereafter amended in accordance with
applicable law.
1.3 Directors and Officers. From and after the Effective Time,
except as set forth herein and until successors are duly elected or appointed
and qualified in accordance with applicable law, the directors and officers of
VantageNet immediately prior to the Effective Time shall remain directors and
officers of VantageNet.
1.4 Conversion of Shares. As of the Effective Time, by virtue of the
Merger, automatically and without any action on the part of any holder thereof:
(a) each issued and outstanding share of VantageNet common
stock, $0.01 par value per share (the "Shares"), shall
be converted into (i) 21.85 shares, or 65,550 shares in
the aggregate, of ▇▇▇▇▇.▇▇▇'s common stock, $0.001 par
value per share (the "▇▇▇▇▇.▇▇▇ Common Stock") and (ii)
$183.33 per share, or $550,000 in the aggregate(the
"Cash Consideration");
(b) Fractional shares of ▇▇▇▇▇.▇▇▇ Common Stock will not be
issued in connection with the conversion of the Shares
into shares of ▇▇▇▇▇.▇▇▇ Common Stock and the ▇▇▇▇▇.▇▇▇
Common Stock converted pursuant to subsection (a) above
shall be rounded up to the nearest whole number of
shares of ▇▇▇▇▇.▇▇▇ Common Stock.
1.5 Exchange of Certificates.
(a) At the Closing and subject to the terms of the Escrow
Agreement (as defined below), upon receipt of the certificates representing the
Shares, AAC shall deliver to each Stockholder in exchange therefor a certificate
for the number of shares of ▇▇▇▇▇.▇▇▇ Common Stock to which such holder is
entitled pursuant to Section 1.4 (subject to any Escrowed Amounts (as defined in
Section 1.6)). Certificates representing the shares of ▇▇▇▇▇.▇▇▇ Common Stock to
be issued pursuant to Section 1.4 shall include an appropriate Securities Act of
1933 legend (Rule 144 legend), providingthat the stock evidenced by the
certificates are restricted securities. In addition, at the Closing, AAC shall
deliver to each Stockholder the Cash Consideration to which such holder is
entitled pursuant to Section 1.4.
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(b) All ▇▇▇▇▇.▇▇▇ Common Stock delivered to the Stockholders
or the Escrow Agent (as defined below) in exchange for the Shares in accordance
with the terms hereof shall be deemed to have been delivered in full
satisfaction of all rights pertaining to such Shares. After the Effective Time,
there shall be no further registration of transfers on the stock transfer books
of VantageNet of certificates representing any VantageNet capital stock that
were outstanding immediately prior to the Effective Time. If, after the
Effective Time, certificates representing VantageNet capital stock are presented
for any reason, they shall be cancelled and exchanged as provided in this
Section 1.5.
1.6 Escrow. Contemporaneously with the execution of this Agreement,
▇▇▇▇▇.▇▇▇, AAC, VantageNet, the Stockholders and First Union National Bank (the
"Escrow Agent") shall enter into an Escrow Agreement substantially in the form
as attached hereto as Exhibit A (the "Escrow Agreement"). Pursuant to the terms
and conditions of the Escrow Agreement, upon the Closing ▇▇▇▇▇.▇▇▇ shall deliver
all of the shares of ▇▇▇▇▇.▇▇▇ Common Stock that the Stockholders are eligible
to receive pursuant to Section 1.4 (the "Escrowed Amounts") to the Escrow Agent
for deposit in the Escrow Account (as defined in the Escrow Agreement) for the
purpose of securing various obligations of VantageNet and the Stockholders set
forth in this Agreement and the Escrow Agreement. The Escrowed Amounts shall be
held by the Escrow Agent under the Escrow Agreement pursuant to the terms
thereof. The Escrowed Amounts shall be held as a trust fund and shall not be
subject to any lien, attachment, trustee process or any other judicial process
of any creditor of any party, and shall be held and disbursed solely for the
purposes and in accordance with the terms of the Escrow Agreement.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF ▇▇▇▇▇.▇▇▇ AND AAC
Each of ▇▇▇▇▇.▇▇▇ and AAC, jointly and severally, agrees with, and
represents and warrants to VantageNet and each of the Stockholders as follows:
2.1 Organization. Each of ▇▇▇▇▇.▇▇▇ and AAC is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Delaware.
2.2 Power and Authority. Each of ▇▇▇▇▇.▇▇▇ and AAC has the requisite
corporate power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by each of ▇▇▇▇▇.▇▇▇ and AAC, has been authorized by all necessary
corporate action of each of ▇▇▇▇▇.▇▇▇ and AAC and constitutes the legal, valid
and binding obligation of each of ▇▇▇▇▇.▇▇▇ and AAC, enforceable against
▇▇▇▇▇.▇▇▇ and AAC in accordance with its terms, except as such enforceability
may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization,
moratorium and other laws relating to or affecting creditors' rights generally
and by general equitable principles.
2.3 1933 Act Filings. ▇▇▇▇▇.▇▇▇ has furnished to VantageNet true and
complete copies of its prospectus filed with the United States Securities and
Exchange Commission on March 24, 1999 (the "Prospectus"). Each of the balance
sheets included in the Prospectus fairly presents the financial position of
▇▇▇▇▇.▇▇▇ as of its date.
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2.4 No Conflict or Default. Each of ▇▇▇▇▇.▇▇▇'s and AAC's
consummation of the transactions contemplated hereby and the compliance with the
terms hereof by it do not, or as of the Closing will not, violate any provisions
of their respective Certificates of Incorporation or Bylaws, or conflict with or
result in a breach of any terms of, or constitute a default under any material
agreement, obligation or instrument to which either of them is a party or by
which either of them is bound.
2.5 Consents and Approvals. Except in connection with the filing of
the Certificate of Merger or any applicable federal or state securities filings,
no consent, approval, order, authorization of, or registration, qualification,
designation, declaration or filing with, any federal, state or local
governmental authority or any non-governmental third party on the part of
▇▇▇▇▇.▇▇▇ or AAC is required in connection with the execution, delivery and
performance by ▇▇▇▇▇.▇▇▇ and AAC of this Agreement or the consummation of the
transactions contemplated hereby.
2.6 Brokers or Finders. Neither ▇▇▇▇▇.▇▇▇ nor AAC has incurred, or
will incur, directly or indirectly, any liability for brokerage or finders' fees
or agents' commissions or any similar charges in connection with this Agreement
or any transaction contemplated hereby.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF VANTAGENET
AND THE STOCKHOLDERS
VantageNet and each of the Stockholders, jointly and severally,
represents and warrants to each of ▇▇▇▇▇.▇▇▇ and AAC that:
3.1 Organization and Corporate Authority. VantageNet is a
corporation duly incorporated, validly existing and in good standing under the
laws of the State of Minnesota and has requisite corporate power and authority
to carry on its business in the places where such business is now conducted.
3.2 Power and Authority. VantageNet has all requisite corporate
power and authority to enter into this Agreement and all other documents
contemplated hereby (collectively, the "VantageNet Documents") and to consummate
the transactions contemplated hereby. The VantageNet Documents have been duly
executed and delivered by VantageNet, have been authorized by all necessary
corporate action of VantageNet and constitute legal, valid and binding
obligations of VantageNet, enforceable against VantageNet in accordance with
their respective terms, except as such enforceability may be limited by
bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and
other laws relating to or affecting creditors' rights generally and by general
equitable principles.
3.3 Capitalization. The authorized capital stock of VantageNet
consists of 1,000,000 shares of common stock, par value $.01 per share, of which
3,000 shares are presently issued and outstanding. All such shares of stock are
owned of record and beneficially by the Stockholders in the amounts set forth on
Schedule 3.3. All outstanding shares of VantageNet capital stock have been duly
authorized and validly issued and are fully paid and nonassessable. There have
been no additional shares of capital stock of VantageNet that have been issued
or that
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are presently outstanding and there are no subscriptions, options, warrants,
conversion rights, rights of exchange or other rights, plans, agreements or
commitments of any nature whatsoever (including, without limitation, conversion
or preemptive rights) providing for the purchase, issuance, transfer,
registration or sale of any shares of VantageNet's capital stock or any
securities convertible into or exchangeable for any shares of VantageNet capital
stock. All of the shares of capital stock issued by VantageNet have been issued
pursuant to valid exemptions from registration under all federal and state
securities laws and there are no outstanding obligations of VantageNet to
repurchase, redeem or otherwise acquire any of the shares of capital stock
issued by VantageNet.
3.4 Subsidiaries. VantageNet does not presently own, directly or
indirectly, any interest in any other corporation, association, joint venture or
other business entity.
3.5 Financial Records.. The internal books and records of VantageNet
from which the accounting records were derived do not contain any information
which is false or misleading.
3.6 Absence of Certain Changes. Except as set forth in Schedule 3.6
hereto, since May 6, 1999, there has not been:
(a) Any event that may reasonably have a material adverse
effect on the business, properties, results of operations, condition
(financial or otherwise) or prospects of VantageNet (each a "Material
Adverse Effect");
(b) Any increase in or modification of any bonus, pension,
insurance or other employee benefit plan, payment or arrangement
(including, without limitation, the granting of stock options, restricted
stock awards or stock appreciation rights) made to, for or with any of
VantageNet's directors or employees;
(c) Any declaration, setting aside or payment of dividends or
distributions in respect of the capital stock of VantageNet, or any
split-up or other recapitalization in respect of the capital stock of
VantageNet or any direct or indirect redemption, purchase or other
acquisition of any such capital stock of VantageNet or any agreement to do
any of the foregoing;
(d) Any issuance, transfer, sale or pledge by VantageNet of
any shares of its capital stock or other securities or of any commitment,
option, right or privilege under which VantageNet is or may become
obligated to issue any shares of its capital stock or other securities;
(e) Any alteration in any term of any outstanding securities
of VantageNet;
(f) Any change in the accounting methods, practices or
policies followed by VantageNet from those in effect during the past year;
(g) Any sale, assignment, or transfer of any patents,
trademarks, copyrights, trade secrets or other intangible assets of
material value by VantageNet;
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(h) Any change in or amendment to the Certificate of
Incorporation or Bylaws of VantageNet; or
(i) Any agreement or commitment, whether written or oral, by
VantageNet to do any of the things described in this Section 3.6.
3.7 Liabilities. VantageNet does not have, and as of the Closing
Date (as defined below) will not have, any liabilities or obligations of any
kind that, in the aggregate, exceed Five Thousand Dollars ($5,000.00) (whether
absolute or contingent or accrued).
3.8 Litigation. No litigation, arbitration or other proceeding is
pending or, to the best knowledge of VantageNet or either of the Stockholders,
threatened by or against VantageNet, its properties or assets, the capital stock
of VantageNet or its officers, directors or stockholders before any court or any
government agency, and, to the best knowledge of VantageNet and the
Stockholders, no facts exist which might form the basis for any such litigation,
arbitration or proceeding. VantageNet is not the subject of any investigation
for violation of any laws, regulations or administrative orders applicable to
its business by any governmental authority or any other person. There is no
judgment, decree, injunction, rule or order of any court, governmental
department, commission, agency, instrumentality or arbitrator outstanding
against VantageNet or either of the Stockholders, their respective properties or
assets or the capital stock of VantageNet or which in any manner challenges or
seeks to prevent enjoin, alter or materially delay any of the transactions
contemplated hereby. There is no action, suit, proceeding or investigation by
VantageNet or the Stockholders currently pending or that is currently
contemplated.
3.9 No Conflict or Default. Neither the execution and delivery of
this Agreement or any of the documents to be delivered hereunder, nor compliance
with the terms and provisions hereof or thereof, will violate any statute,
regulation or ordinance of any governmental authority, or conflict with or
result in the breach of any term, condition or provision of (i) the Certificate
of Incorporation or Bylaws of VantageNet, or (ii) any agreement, deed, contract,
mortgage, indenture, writ, order, decree, legal obligation or instrument to
which either of the Stockholders is a party or by which any of them are or may
be bound, or (iii) of any agreement, deed, contract, mortgage, indenture, writ,
order, decree, legal obligation or instrument to which VantageNet is a party and
that is set forth on Schedule 3.9 hereto, or constitute a default (or an event
which, with the lapse of time or the giving of notice, or both, would constitute
a default) thereunder, or result in the creation or imposition of any lien,
charge, encumbrance or restriction of any nature whatsoever.
3.10 Consents and Approvals. Except for the contracts set forth on
Schedule 3.9 hereto and in connection with the filing of the Certificate of
Merger, no consent, approval, order, authorization of, or registration,
qualification, designation, declaration or filing with, any federal, state or
local governmental authority or any non-governmental third party on the part of
VantageNet or either of the Stockholders is required in connection with the
execution, delivery and performance by VantageNet and the Stockholders of this
Agreement, the consummation of the transactions contemplated hereby or the
operation of VantageNet's business following the Closing Date.
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3.11 Taxes. VantageNet has (i) duly and timely filed or caused to be
filed all Federal, state and local tax returns, statements, reports and forms
required to be filed by VantageNet and will duly and timely file or cause to be
filed all such applicable tax returns, statements, reports and forms required to
be filed prior to the Effective Date which relate to VantageNet or with respect
to which VantageNet is liable or otherwise in any way subject, including,
without limitation, any income, property, sales, use, franchise, added value,
withholding, and social security taxes, and all such tax returns (including all
amendments thereto) (A) are complete, accurate and in accordance in all material
respects with all legal requirements applicable thereto and (B) as of the time
of filing, correctly reflected the facts regarding the income, business assets,
operations, activities, status or other matters of VantageNet required to be
shown thereon, (ii) paid, when due, all taxes shown to be due and payable on
such returns, or pursuant to any assessment or otherwise, and (iii) properly
accrued, charged or established adequate reserves on the Unaudited Financial
Statements for all taxes arising in respect of any fiscal year of VantageNet. No
tax liabilities, disallowances or assessments relating to the business, assets
or employees or independent contractors of VantageNet have been assessed as of
the date hereof, and, to the best knowledge of VantageNet and the Stockholders,
there is no basis for any such liabilities, disallowances or assessments.
VantageNet is not delinquent in the payment of any taxes which would result in
the imposition of any charge, lien, encumbrance or adverse claim of any kind
whatsoever on VantageNet, its properties or assets or the capital stock of
VantageNet. VantageNet has properly withheld and/or paid all withholding,
employment or other similar taxes and all unemployment compensation and similar
obligations required to be withheld or paid. The Stockholders will be
responsible for filing any tax return relating to the business of VantageNet
conducted prior to the Closing.
3.12 Intellectual Property Rights.
(a) Schedule 3.12 hereto sets forth a list of all patents,
trade names, trademarks, service marks, brandmarks,
copyrights trade secrets, software and other
intellectual property rights owned by, licensed or used
in the business of VantageNet, or which are registered
in the name of VantageNet, other than the Excluded
Inventions as such term is defined in the Stockholders'
respective employment agreements (collectively, the
"VantageNet Rights"). Except as set forth on Schedule
3.12, VantageNet is the sole owner of all right, title
and interest in the VantageNet Rights, free and clear of
all liens, encumbrances, licenses, claims, rights of use
and restrictions whatsoever.
(b) There are no outstanding options, licenses, sublicenses
or agreements of any kind relating to the VantageNet
Rights nor are there any options, licenses, sublicenses
or agreements of any kind with respect to the patents,
trademarks, trade names, copyrights, trade secrets,
rights, or other intellectual property or other
proprietary rights of any other person or entity which
relate to the business of VantageNet and there has been
no disposition, license, sublicense or disclosure of the
VantageNet Rights or any portion thereof, except
pursuant to that certain Employment Agreement between
VantageNet, Inc. and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, dated May 5,
1999, that certain Employment Agreement
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between VantageNet, Inc. and ▇▇▇▇▇ ▇. ▇▇▇▇ dated May 5,
1999, and that certain Asset Purchase Agreement dated
May 5, 1999, and that certain Assignment Agreement
between ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and VantageNet, Inc., dated
February 7, 1999.
(c) Neither the VantageNet Rights nor anything used in
connection with the business of VantageNet, now or in
the past, infringes or infringed or will infringe upon
any rights or intellectual property of any other person,
firm, corporation or other entity and no one has
disputed (or has a basis to dispute) the right, title or
interest of VantageNet to the VantageNet Rights. Neither
VantageNet nor either of the Stockholders is aware of
any facts which would invalidate or render unenforceable
any of the VantageNet Rights. As of the date of this
Agreement, VantageNet has not received any notices of
infringement with respect to the VantageNet Rights and,
to the best knowledge of VantageNet and each of the
Stockholders, the VantageNet Rights are not being
infringed or violated by any other person or entity, nor
do they infringe any rights of others.
(d) VantageNet has taken reasonable security measures to
protect the secrecy, confidentiality and value of the
VantageNet Rights. Any employee or other person who,
either alone or in concert with others, developed,
invented, discovered, derived, programmed or designed
any of the VantageNet Rights or any part thereof, or who
has knowledge of or access to information relating to
it, has been put on notice that the VantageNet Rights is
proprietary to VantageNet and not to be divulged or
misused, has assigned all of his or her rights relating
to the VantageNet Rights to VantageNet and has executed
a proprietary information and assignment of inventions
agreement to such effect (all of which such agreements
have been delivered to ▇▇▇▇▇.▇▇▇). No claim of ownership
or legal title or interest in or with respect to the
VantageNet Rights by or against any employee who had
access to the VantageNet Rights has been made or now
exists and neither VantageNet nor the Stockholders know
of any basis for any such claims. No third party has
access to the source code versions of any of the
VantageNet Rights or is otherwise in a position to
duplicate or make any unauthorized use of such source
code versions.
(e) VantageNet and the Stockholders are not aware that any
employees of VantageNet are obligated under any contract
or other agreement, or subject to any judgment, decree
or order of any court or administrative agency, that
would, after the date of Closing, interfere with the use
of such employee's best efforts to promote the interests
of VantageNet or that would reasonably be expected
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to conflict with VantageNet's business as proposed to be
conducted, including the unrestricted use of the
VantageNet Rights. Neither the execution nor delivery of
this Agreement, nor the carrying on of VantageNet's
business by the employees of VantageNet following the
Closing, will conflict with or result in a breach of the
terms, conditions or provisions of, or constitute a
default under, any contract, covenant or instrument
under which any of such employees is now obligated.
(f) VantageNet is Year 2000 Compliant. As used herein, Year
2000 Compliant means that each item of software used in
its business, and all other VantageNet Rights, is
designed effectively and without error to record, store,
process, calculate, verify and present calendar dates
falling on or after (and, if applicable, spans of time
including) January 1, 2000, and before December 31,
2049, and that each such item will calculate any
information (including information imported from, or
exported to, other programs or systems) dependent on or
relating to such dates in the same manner, and with the
same functionality, data integrity and performance, as
it records, stores, processes, calculates and presents
calendar dates on or before December 31, 1999, or
calculates any information dependent on or relating to
such dates.
3.13 Compliance with Law. VantageNet has complied and is in
compliance in all material respects with all applicable federal, state and local
laws, statutes, licensing requirements, rules and regulations, including those
that relate to environmental, employment, labor and matters.
3.14 Brokers or Finders. VantageNet has not incurred, and will not
incur, directly or indirectly, any liability for brokerage or finders' fees or
agents' commissions or any similar charges in connection with this Agreement or
any transaction contemplated hereby.
3.15 Employees. Other than the Stockholders, VantageNet has never
had any other employees.
3.16 Bank Accounts VantageNet has furnished to ▇▇▇▇▇.▇▇▇ a true and
complete list in Schedule 3.16 setting forth the names and addresses of all
banks, other institutions and state governmental departments at which VantageNet
has accounts, deposits or the like, and the names of all persons authorized to
draw on or give instructions with respect thereto or holding a power-of-attorney
on behalf of VantageNet. All cash held in such accounts is not subject to any
restriction or limitation as to withdrawal.
3.17 Title to Properties and Assets; Leases. Schedule 3.17 sets
forth the real and all material items of tangible personal property, including
fixed assets and equipment, owned or leased by VantageNet or used in the
operation of the business of VantageNet. VantageNet owns, or has a valid right
to use, its assets and property free and clear of all
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mortgages, liens, claims and encumberances. With respect to the property and
assets it leases or licenses, VantageNet is in compliance with such leases or
licenses in all material respects.
3.18 Accounts Receivable. Schedule 3.18 contains a summary of the
accounts receivable of VantageNet as of the date of this Agreement, together
with an accurate aging of such accounts receivable. The accounts receivable are
collectible at their full amounts.
3.19 Accounts Payable. Schedule 3.19 contains a summary of the
accounts payable of VantageNet as of the date of this Agreement, all of which
arose in the normal and ordinary course of the business of VantageNet.
3.20 Contracts. Schedule 3.20 contains a complete list of each
contract or agreement to which VantageNet is a party or which relates to the
operation of the business of VantageNet. Each of these contracts or agreements
is a legal, binding and enforceable obligation by or against VantageNet. To
VantageNet's and the Stockholder's knowledge, no party with whom VantageNet has
an agreement or contract is in default thereunder or has breached any term or
provision thereof which is material to the conduct of VantageNet's business.
VantageNet is not in material default in respect of any contract or agreement to
which it is a party.
3.21 Representations Complete. None of the representations and
warranties made by VantageNet herein, nor any statement made in any Exhibit or
certificate furnished pursuant to this Agreement, contains or will contain any
untrue statement of a material fact, or omit to state any material fact required
to be stated therein, or necessary in order to make the statements made, in
light of the circumstances under which they were made, not misleading.
ARTICLE 4
CERTAIN COVENANTS AND AGREEMENTS
4.1 Conduct of Business by VantageNet. During the period from the
date of this Agreement to the Closing Date, VantageNet shall conduct its
operations, and the Stockholders will ensure such conduct to be, only according
to its ordinary and usual course of business and will use its best efforts to
preserve intact its business organization, keep available the services of its
officers and employees and maintain satisfactory relationships with clients and
others having business relationships with VantageNet. During the period from the
date of this Agreement to the Closing Date, VantageNet shall confer on a regular
and frequent basis with one or more designated representatives of ▇▇▇▇▇.▇▇▇ to
report material operational matters and to report the general status of ongoing
operations. VantageNet shall immediately notify ▇▇▇▇▇.▇▇▇ of any emergency or
other change in the normal course of its business or in the operation of its
properties and of any complaints, investigations or hearings (or communications
indication that the same may be contemplated), adjudicatory proceedings, budget
meetings or submissions involving VantageNet and permit ▇▇▇▇▇.▇▇▇'s
representatives prompt access to all materials prepared in connection therewith.
Further:
(a) From the date hereof until the Closing, neither VantageNet
nor the Stockholders, without ▇▇▇▇▇.▇▇▇'s prior express written consent or
except as expressly permitted hereby:
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(i) incur any additional indebtedness relating to
VantageNet, or guarantee any indebtedness or obligation of any other
party;
(ii) issue, redeem or purchase any of VantageNet's
capital stock or securities convertible into VantageNet capital
stock or grant or issue any options, warrants or rights to subscribe
for VantageNet capital stock or securities convertible into
VantageNet capital stock or commit to do any of the foregoing;
(iii) enter into, amend or terminate any material
agreement or arrangement relating to VantageNet;
(iv) increase the compensation payable or to become
payable to any of VantageNet's officers, employees or agents,
including, without limitation, the payment or obligation to pay any
bonus, pension, retirement or insurance proceeds to such persons, or
adopt or amend any employee benefit plan or arrangement;
(v) enter into any employment contract or agreement with
any existing or prospective employee;
(vi) cancel, without full payment, any note, loan or
other obligation owing to VantageNet;
(vii) acquire or dispose of any properties or assets
used in the business of VantageNet;
(viii) create or suffer to be imposed any lien,
mortgage, security interest or other charge on or against
VantageNet's properties or assets;
(ix) engage in any other material activities or
transactions;
(x) make or adopt any change in the Certificate of
Incorporation or Bylaws of VantageNet as in force and effect on the
date hereof; or
(xi) take any action, or omit to take any action, within
their control, that would cause, and shall promptly notify ▇▇▇▇▇.▇▇▇
in writing of any event or occurrence which cause any of the
representations and warranties set forth in Article 3 hereof to
become untrue, incomplete, or inaccurate in any material respect as
or prior to the Closing Date.
(b) From the date hereof until the Closing, or except as
expressly permitted hereby, VantageNet shall, unless otherwise expressly
consented to in writing by ▇▇▇▇▇.▇▇▇:
(i) maintain VantageNet's existing insurance policies,
unless comparable insurance is substituted therefor, and shall not
take any action to terminate or modify those insurance policies;
11
(ii) maintain VantageNet's books and records consistent
with past practices and policies and in accordance with generally
accepted accounting principles;
(iii) maintain in good working condition, ordinary wear
and tear excepted, and in compliance in all material respects with
all applicable laws and regulations, all fixed assets owned, leased
or operated, as the case may be, by VantageNet;
(iv) observe and perform, and remain in compliance with,
VantageNet's obligations in agreements and contracts the breach or
violation of which would have, individually or in the aggregate, a
Material Adverse Effect; and
(v) maintain compliance with the terms and conditions of
all VantageNet Rights and use its best efforts to maintain all such
VantageNet Rights in full force and effect.
(c) From the date hereof until the Closing, ▇▇▇▇▇.▇▇▇ shall be
authorized to serve advertisements across all of the VantageNet network.
With respect to any advertisements served by ▇▇▇▇▇.▇▇▇ on the VantageNet
network during this period, ▇▇▇▇▇.▇▇▇ agrees that VantageNet shall be
entitled to compensation equal to 20% of Net VantageNet Revenues. For
purposes of this Section 4.1(c), Net VantageNet Revenues shall be equal to
Gross VantageNet Realized Revenues minus all advertising and marketing
costs relating to the activities of VantageNet up to a maximum of 20% of
Gross VantageNet Realized Revenues. Gross VantageNet Realized Revenues
shall include all revenues actually received (on a cash basis) by
▇▇▇▇▇.▇▇▇ from all advertisers whose advertisements are served on the
VantageNet network.
4.2 Necessary Consents. Prior to the Closing, each of the parties
hereto shall obtain such written consents and releases and take such other
actions as may be necessary or appropriate to allow the consummation of the
transactions contemplated hereby and to allow the continuation of VantageNet's
business by ▇▇▇▇▇.▇▇▇ and AAC after the Closing as conducted at the date hereof.
4.3 Access to Information. VantageNet and the Stockholders shall
give ▇▇▇▇▇.▇▇▇ and AAC and their respective accountants, legal counsel and other
representatives (collectively, the "Requesting Parties") full access, during
normal business hours throughout the period prior to the Closing, to all of the
properties, books, contracts, commitments and records relating to the business,
assets and liabilities of VantageNet, and shall furnish the Requesting Parties
during such period all such information concerning its affairs as the Requesting
Parties may reasonably request; provided, that any furnishing of such
information pursuant hereto or any investigation by a Requesting Party shall not
affect such Requesting Party's right to rely on the representations, warranties
and covenants made by VantageNet or the Stockholders in this Agreement. Pending
the Closing, each Requesting Party shall hold in confidence all information so
obtained and will use such information only for purposes related to the
transactions contemplated hereby. Each Requesting Party further agrees that,
pending the Closing, it will not
12
disclose any such information to any third party except upon the prior written
consent of VantageNet and the Stockholders, or except as required by law or
except to its accountants, legal counsel or other representatives who have
agreed to maintain the confidentiality of such information. If the transactions
contemplated hereby are not consummated, the Requesting Party shall return all
data to VantageNet and the Stockholders and continue to honor the foregoing
confidentiality and non-disclosure covenants for a period of three (3) years.
Such obligation of confidentiality shall not extend to any information (i) which
is shown to be or to have been generally known to others engaged in the same
trade or business as VantageNet; (ii) previously known to the Requesting Party
prior to the start of discussions leading to the execution of this Agreement;
(iii) obtained by the Requesting Party in good faith from third parties who are
not obligated to maintain the information confidential; (iv) that is or shall be
public knowledge through no act or omission by the Requesting Party or any of
its directors, officers, employees, or representatives; or (v) that is required
to be disclosed pursuant to any law, rule or regulation or pursuant to any order
or decree of any appropriate court or governmental agency or pursuant to any
disclosure obligations set forth in the federal securities laws.
4.4 Other Negotiations. Prior to the Closing, or such earlier date
on which this Agreement is terminated in accordance with its terms, neither
VantageNet nor any of its officers, directors, employees, agents or
representatives will, directly or indirectly, initiate discussions or negotiate,
or authorize any person or entity to discuss or negotiate on behalf of such
party with any other party, or entertain or consider any inquiries or proposals
received from any other party, concerning the possible disposition of
VantageNet's business, assets or capital stock, in whole or in part. Neither
VantageNet nor any of its officers, directors, employees, agents or
representatives will furnish any information concerning VantageNet to any person
other than the other parties hereto for the purpose of, or with the intent of,
permitting such person or entity to evaluate a possible acquisition of
VantageNet's business, assets or capital stock, in whole or in part.
4.5 Certain Defaults; Litigation. VantageNet and the Stockholders
will give prompt notice to the other parties of:
(a) any notice of default received by such party subsequent to
the date of this Agreement and prior to the Closing under any instrument
or agreement to which such party or its assets is a party or by which it
is bound, which default could, if not remedied, result in a Material
Adverse Effect or which would render incorrect or misleading any
representation made herein, and
(b) any suit, action, proceeding or investigation instituted
or threatened against or affecting such party subsequent to the date of
this Agreement and prior to the Closing which, if adversely determined,
could result in a Material Adverse Effect or which would render incorrect
or misleading any representation made herein.
13
ARTICLE 5
CONDITIONS PRECEDENT TO
OBLIGATIONS OF ▇▇▇▇▇.▇▇▇ AND AAC
The obligations of ▇▇▇▇▇.▇▇▇ and AAC to consummate the transactions
contemplated by this Agreement are subject to the satisfaction, at or before the
Closing, of all the following conditions, unless expressly waived in writing by
▇▇▇▇▇.▇▇▇ and AAC:
5.1 Representations and Warranties True; Schedules Delivered. The
representations and warranties set forth in Article III hereof shall have been
true and correct at and as of the Closing as though such representations and
warranties were made on and as of that date. The Schedules referred to herein
shall have been completed and provided to ▇▇▇▇▇.▇▇▇ and shall be in form and
substance satisfactory to ▇▇▇▇▇.▇▇▇ and its counsel.
5.2 Covenants Performed. VantageNet and the Stockholders shall have
performed, satisfied and complied in all respects with all covenants, agreements
and conditions required by this Agreement to be performed or complied with by
VantageNet or the Stockholders on or before the Closing.
5.3 [Reserved]
5.4 VantageNet Stockholders. The current stockholders of VantageNet
shall have executed a unanimous written action whereby such stockholders vote
their respective shares in favor of the approval of this Agreement and shall not
have withdrawn such consent.
5.5 [Reserved]
5.6 Employment Agreements. Each of the Stockholders shall have
executed and delivered an employment agreement to ▇▇▇▇▇.▇▇▇ in the form attached
hereto as Exhibit B (collectively, the "Employment Agreements").
5.7 No Violations; No Actions. Consummation of the transactions
contemplated hereby shall not violate any order, decree or judgment of any court
or governmental body having competent jurisdiction and no action or proceeding
shall have been instituted or threatened by any person, entity or governmental
agency which, in any such case, in the sole judgment of ▇▇▇▇▇.▇▇▇, has a
reasonable probability of resulting in (i) the obtaining of material damages
from VantageNet; (ii) an order, judgment or decree restraining, prohibiting or
rendering unlawful the consummation of the transactions contemplated hereby; or
(iii) other relief in connection therewith.
5.8 No Material Adverse Effect. During the period from June 9, 1999
to the Closing Date, there shall not have been any material adverse change in
the condition (financial or otherwise), liabilities, business or prospects of
VantageNet.
5.9 Proceedings and Documents. All corporate and other proceedings
in connection with the transactions contemplated hereby and all documents and
instruments incident to such transactions shall be in form and substance
reasonably satisfactory to ▇▇▇▇▇.▇▇▇
14
and its counsel, and ▇▇▇▇▇.▇▇▇ shall have received all such counterpart
originals or certified or other copies of such documents as it may reasonably
request.
5.10 Delivery of Documents. ▇▇▇▇▇.▇▇▇ shall have received all
documents and other items to be delivered by VantageNet under Section 7.2.
5.11 Illegality or Legal Constraint. No statute, rule, regulation,
executive order, decree, injunction or restraining order shall have been
enacted, promulgated or enforced (and not repealed, superseded or otherwise made
inapplicable) by any court or governmental authority which prohibits the
consummation of the transactions contemplated hereby (each party agreeing
promptly to use its reasonable best efforts to have any such order, decree or
injunction lifted). There shall be no pending legal action, suit or proceeding
regarding the transactions contemplated hereby.
5.12 Required Consents. All consents, approvals and waivers from
third parties necessary to the transactions as contemplated hereby and to the
continued validity and effectiveness of the VantageNet Rights shall have been
obtained.
5.13 [Reserved]
5.14 Resignation of Directors. The directors and officers of
VantageNet shall have submitted their resignations in writing to ▇▇▇▇▇.▇▇▇ which
shall be effective as of the Closing Date.
5.15 Assignment of VantageNet Rights. All VantageNet Rights shall
have been properly assigned, if necessary, to provide the benefit of such
VantageNet Rights to ▇▇▇▇▇.▇▇▇.
ARTICLE 6
CONDITIONS PRECEDENT TO
OBLIGATIONS OF VANTAGENET AND THE STOCKHOLDERS
The obligations of VantageNet and the Stockholders to consummate the
transactions contemplated by this Agreement are subject to the satisfaction, at
or before the Closing, of all the following conditions, unless expressly waived
in writing by VantageNet and the Stockholders:
6.1 Representations True. All representations and warranties by
▇▇▇▇▇.▇▇▇ and AAC in this Agreement shall be true on and as of the Closing as
though such representations and warranties were made on and as of that date.
6.2 Covenants Performed. Each of ▇▇▇▇▇.▇▇▇ and AAC shall have
performed, satisfied, and complied in all respects with all covenants,
agreements and conditions required by this Agreement to be performed or complied
with by ▇▇▇▇▇.▇▇▇ or AAC on or before the Closing.
6.3 Delivery of Documents. VantageNet shall have received all
documents and other items to be delivered by ▇▇▇▇▇.▇▇▇ and AAC under Section
7.3.
15
6.4 Required Consents. All consents, approvals and waivers from
third parties and governmental authorities necessary to the transactions as
contemplated hereby shall have been obtained.
6.5 Employment Agreements. ▇▇▇▇▇.▇▇▇ shall have executed and
delivered the Employment Agreements.
ARTICLE 7
CLOSING
7.1 Time and Place. The closing of the Merger (the "Closing") shall
occur at the offices of ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ at 10:00 a.m. on the earliest practicable date
after the conditions of Articles 5 and 6 shall have been met or at such other
time and date to which the parties may agree in writing (the "Closing Date").
7.2 Deliveries by VantageNet and the Stockholders. At the Closing,
VantageNet and the Stockholders shall execute and deliver or cause to be
executed and delivered to ▇▇▇▇▇.▇▇▇:
(a) Corporate Documents. The Certificate of Incorporation of
VantageNet, certified by the Secretary of State of Minnesota as of a
recent date, and the Bylaws of VantageNet, certified by the Secretary of
VantageNet as in effect as of the Closing Date;
(b) [Reserved]
(c) Certificate of Good Standing. VantageNet shall have
delivered to ▇▇▇▇▇.▇▇▇ a certificate from the Secretary of State or other
appropriate official of the State of Minnesota to the effect that each of
VantageNet is in good standing or subsisting in Minnesota and listing all
charter documents of VantageNet on file;
(d) Resolutions. A copy of the resolutions of the Board of
Directors of VantageNet certified by the Secretary of VantageNet as having
been duly and validly adopted and being in full force and effect,
authorizing execution and delivery of this Agreement and performance of
the transactions contemplated hereby by VantageNet;
(e) [Reserved]
(f) Certificates Representing Shares. The Stockholders shall
have provided ▇▇▇▇▇.▇▇▇ with the certificates representing the Shares;
(g) Books and Records. All of the minute books, stock ledgers
and similar corporate records of VantageNet;
(h) [Reserved]
16
(i) Consent. Evidence that all consents, releases, approvals,
or authorizations of or notifications to any third parties (including
governmental agencies), if any, required to effect the Merger and to
consummate the transactions contemplated hereby have been obtained by
VantageNet;
(j) [Reserved]
(k) [Reserved]
(l) Escrow Agreement. The Escrow Agreement; and
(m) Other Documents. Such other documents and instruments as
▇▇▇▇▇.▇▇▇ or its counsel shall deem reasonably necessary to consummate the
transactions contemplated hereby.
All documents delivered to ▇▇▇▇▇.▇▇▇ shall be in form and substance
reasonably satisfactory to ▇▇▇▇▇.▇▇▇ and its counsel.
7.3 Deliveries of ▇▇▇▇▇.▇▇▇. At the Closing, ▇▇▇▇▇.▇▇▇ shall execute
and deliver or cause to be executed and delivered to VantageNet simultaneously
with delivery of the items referred to in Section 7.2 above:
(a) Resolutions. A copy of the resolutions of the Board of
Directors of each of ▇▇▇▇▇.▇▇▇ and AAC, certified by the Secretary thereof
as having been duly and validly adopted and being in full force and
effect, authorizing execution and delivery of this Agreement and
performance of the transactions contemplated hereby by ▇▇▇▇▇.▇▇▇ and AAC;
(b) Escrow Agreement. The Escrow Agreement; and
(c) ▇▇▇▇▇.▇▇▇ Common Stock and Cash Consideration. Subject to
the Escrow Agreement, ▇▇▇▇▇.▇▇▇ will deliver to the Stockholders the
▇▇▇▇▇.▇▇▇ Common Stock and the Cash Consideration.
All documents delivered to VantageNet shall be in form and substance
reasonably satisfactory to VantageNet.
ARTICLE 8
INDEMNIFICATION
8.1 Indemnification by the Stockholders. The Stockholders shall
indemnify ▇▇▇▇▇.▇▇▇ and AAC and their respective directors, officers, employees,
agents or advisors, or any of their respective successors and assigns, in
respect of, and hold each of them harmless against, any and all demands, claims,
debts, actions, assessments, judgements, settlements, sanctions, obligations and
other liabilities (whether absolute, accrued, contingent, fixed or otherwise,
known or unknown, due or to become due or otherwise), 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
17
and expenses of attorneys, accountants, financial advisors and other experts,
and other expenses of litigation) ("Damages"), incurred or suffered by them:
(a) resulting from, relating to or constituting any
misrepresentation, breach of warranty or failure to perform any covenant
or agreement of VantageNet or the Stockholders contained, or referred to,
in this Agreement, the Escrow Agreement or in the certificates delivered
pursuant to Section 7.2 herein; or
(b) arising out of the conduct of VantageNet's business prior
to the Effective Date or resulting from or relating to any goods sold or
services rendered by VantageNet through the Effective Date, including
without limitation, customer claims and customer warranty claims in
respect of such pre-Effective Date goods and services ("Customer Claims"),
regardless of when asserted.
8.2 Indemnification by ▇▇▇▇▇.▇▇▇ and AAC. ▇▇▇▇▇.▇▇▇ and AAC, jointly
and severally, shall indemnify the Stockholders and hold each of them harmless
against, any and all Damages incurred or suffered by them arising out of the
conduct of VantageNet's business following the Effective Date or resulting from
or relating to any goods sold or services rendered by or through VantageNet
following the Effective Date, including without limitation, customer claims and
customer warranty claims in respect of such post-Effective Date goods and
services, regardless of when asserted.
8.3 Method of Asserting Claims.
(a) All claims for indemnification by any party entitled to
make such claim hereunder (or any of their affiliated parties (each an
"Indemnified Person")) pursuant to this Article 8 shall be made in accordance
with the provisions of this Section 8.3 and the Escrow Agreement.
(b) The Indemnified Person shall give prompt written
notification to the party obligated to provide such indemnification (the
"Indemnifying Person") of the commencement of any action, suit or proceeding
relating to a third party claim for which indemnification pursuant to this
Article 8 may be sought; provided, however, that no delay on the part of the
Indemnified Person in notifying the Indemnifying Person shall relieve the
Indemnifying Person from any liability or obligation under this Article 8 unless
such notification delay shall prejudice the Indemnifying Person. Within 30 days
after delivery of such notification, the Indemnifying Person may, upon written
notice thereof to the Indemnified Person, assume control of the defense of such
action, suit or proceeding with counsel reasonably satisfactory to the
Indemnified Person, provided (i) the Indemnifying Person acknowledges in writing
to the Indemnified Person that the Indemnifying Person shall indemnify the
Indemnified Person with respect to all elements of such action, suit or
proceeding and any damages, fines, costs or other liabilities that may be
assessed against the Indemnified Person in connection with such action, suit or
proceeding, and (ii) the third party seeks monetary damages only. If the
Indemnifying Person does not so assume control of such defense, the Indemnified
Person shall control such defense. The party not controlling such defense may
participate therein; provided, that if the Indemnifying Person assumes control
of such defense and the Indemnified Person is advised by counsel in writing that
the Indemnifying Person and the Indemnified Person may
18
have conflicting interests or different defenses available with respect to such
action, suit or proceeding, the reasonable fees and expenses of counsel to the
parties 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 and shall consider in
good faith recommendations made by the other party with respect thereto. An
Indemnified Person shall not agree to any settlement of such action, suit or
proceeding without the prior written consent of the Indemnifying Person. The
Indemnifying Person shall not agree to any settlement or the entry of a judgment
in any action, suit or proceeding without the prior written consent of the
Indemnified Person, which shall not be unreasonably withheld (it being
understood that it is reasonable to withhold such consent if, among other
things, the settlement or the entry of a judgment (A) lacks a complete release
of the Indemnified Person for all liability with respect thereto or (B) imposes
any liability or obligation on the Indemnified Person).
(c) The Escrowed Amounts in Paragraph 5(c) of the Escrow
Agreement shall be used to satisfy all Damages of any and all parties pursuant
to the provisions of the Escrow Agreement.
8.4 Survival and Limitations.
(a) Except with respect to the representations and warranties
contained in Section 3.11, the representations and warranties of VantageNet and
the Stockholders set forth in Article 3 above and the indemnification
obligations set forth in this Article 8 with respect to such representations and
warranties of VantageNet and the Stockholders (i) shall survive the Effective
Date and the consummation of the transactions contemplated hereby and continue
for a period of twelve (12) months after the Effective Date and (ii) shall not
be affected by any examination made for or on behalf of ▇▇▇▇▇.▇▇▇ or AAC or the
knowledge of any of ▇▇▇▇▇.▇▇▇'s or AAC's officers, directors, stockholders,
employees or agents.
(b) The representations and warranties of VantageNet and the
Stockholders set forth in Section 3.11 shall survive the Effective Date and the
consummation of the transactions contemplated hereby and shall continue for
seven (7) years in full force and effect in accordance with their terms.
(c) The representations and warranties of ▇▇▇▇▇.▇▇▇ and AAC
set forth in Article 2 above shall survive the Effective Date and the
consummation of the transactions contemplated hereby and continue for a period
of twelve (12) months after the Effective Date.
(d) The date on which any particular representation, warranty
or indemnification obligation of any party hereto terminates shall be referred
to herein and in the Escrow Agreement as the "Termination Date". If a notice of
a claim is given in accordance with the notice provisions of this Agreement or
the Escrow Agreement before the Termination Date, then (notwithstanding the
occurrence of the Termination Date) the representation, warranty or
indemnification obligation applicable to such claim shall survive until, but
only for purposes of, the resolution of such claim.
19
ARTICLE 9
MISCELLANEOUS PROVISIONS
9.1 Termination of Agreement. All parties hereto agree to fulfill
the requirements of Articles 5 and 6 as soon as practicable. If any precondition
to the completion of the transactions contemplated hereby as set forth in
Articles 5 and 6 is not fulfilled on or prior to June 19, 1999, which date may
be extended by mutual written agreement of the parties, this Agreement shall be
null and void and have no further effect and no party shall have any liability
to any other party as a result of such termination, except as to such matters as
are specified to survive the termination of this Agreement.
9.2 Further Assurances. At the request of any of the parties hereto,
and without further consideration, each party agrees to execute such documents
and instruments and to do such further acts as may be necessary or desirable to
effectuate the transactions contemplated hereby including, without limitation,
that the principals of VantageNet shall cooperate with ▇▇▇▇▇.▇▇▇ in the
preparation of any short-year tax returns required of VantageNet as a result of
the Transaction.
9.3 Each Party to Bear Own Costs. Each of the parties shall pay all
costs and expenses incurred or to be incurred by it in negotiating and preparing
this Agreement and in closing and carrying out the transactions contemplated by
this Agreement.
9.4 Headings. The subject headings of the Articles and Sections of
this Agreement are included for purposes of convenience only, and shall not
affect the construction or interpretation of any of its provisions.
9.5 Entire Agreement; Waivers. This Agreement and the Exhibits and
Schedules hereto constitute the entire agreement between the parties pertaining
to the contemporaneous agreements, representations, and understandings of the
parties. No supplement, modification, or amendment of this Agreement shall be
binding unless executed in writing by all parties. No waiver of any of the
provisions of this Agreement shall be deemed, or shall constitute, a waiver of
any other provision, whether or not similar, nor shall any waiver constitute a
continuing waiver. No waiver shall be binding unless executed in writing by the
party making the waiver.
9.6 Third Parties. Nothing in this Agreement, whether express or
implied, is intended to confer any rights or remedies under or by reason of this
Agreement on any persons other than the parties to it and their respective
successors and assigns, nor is anything in this Agreement intended to relieve or
discharge the obligation or liability of any third person to any party to this
Agreement, nor shall any provision give any third persons any right of
subrogation or action over against any party to this Agreement.
9.7 Parties in Interest. This Agreement may not be transferred,
assigned, pledged or hypothecated by any party hereto, other than by operation
of law. This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and thereto and their respective heirs, executors,
administrators, successors and assigns.
20
9.8 Notices. All notices, requests, demands, and other
communications under this Agreement shall be in writing and shall be deemed to
have been duly given on the date of service if served personally on the party to
whom notice is to be given, on the date of transmittal of services via telecopy
to the party to whom notice is to be given, or on the third day after mailing if
mailed to the party to whom notice is to be given, by first class mail,
registered or certified, postage prepaid, and properly addressed as follows:
To ▇▇▇▇▇.▇▇▇
or AAC at: ▇▇▇▇▇.▇▇▇, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Senior Vice President and General Counsel
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇▇▇, Phleger & ▇▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
To VantageNet at: VantageNet, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇
3100 ▇▇▇▇▇ ▇▇▇▇▇▇▇ Tower
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇
▇. ▇▇▇▇▇, Esq.
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Any party may change its address for purposes of this paragraph by giving notice
of the new address to each of the other parties in the manner set forth above.
9.9 Attorneys' Fees. If any party to this Agreement shall bring any
action, suit, counterclaim or appeal for any relief against the other,
declaratory or otherwise, to enforce the terms hereof or to declare rights
hereunder (collectively, an "Action"), the Prevailing Party shall be entitled to
recover as part of any such Action its reasonable attorneys' fees and costs,
including any fees and costs incurred in bringing and prosecuting such Action
and/or enforcing
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any order, judgment, ruling or award granted as part of such Action. "Prevailing
Party" within the meaning of this Section 9.9 includes, without limitation, a
party who agrees to dismiss an Action upon the other party's payment of all or a
portion of the sums allegedly due or performance of the covenants allegedly
breached, or who obtains substantially the relief sought by it.
9.10 Governing Law. The terms of this Agreement shall be governed by
the laws of the State of New York, without regard to principles of choice or
conflicts of laws.
9.11 Dispute Resolution. In the event that a dispute shall ever
arise between the parties, the parties agree to act in good faith to attempt to
resolve such dispute. In consideration for the mutual promises of each party,
the parties agree that, in the event of any dispute, the parties shall meet
within 10 days of a written request by a party for such a meeting. The party
requesting the meeting shall set forth in detail the nature of the dispute.
Within the period outline above, the parties shall meet and attempt in good
faith to resolve the dispute. If, and only if, the dispute remains unresolved
through the foregoing process, the parties agree that all actions or proceedings
arising in connection with this Agreement shall be tried and litigated
exclusively in the State and Federal courts located in the Borough of Manhattan
in New York, New York. The aforementioned choice of venue is intended by the
parties to be mandatory and not permissive in nature, thereby precluding the
possibility of litigation between the parties with respect to or arising out of
this Agreement in any jurisdiction other than that specified in this Section
9.11. Each party hereby waives any right it may have to assert the doctrine of
forum non conveniens or similar doctrine or to object to venue with respect to
any proceeding brought in accordance with this paragraph, and stipulates that
the State and Federal courts located in the Borough of Manhattan in New York,
New York shall have in personam jurisdiction and venue over each of them for the
purposes of litigating any dispute, controversy or proceeding arising out of or
related to this Agreement. Each party hereby authorizes and accepts service of
process sufficient for personal jurisdiction in any action against it as
contemplated by this Section 9.11 by registered or certified mail, return
receipt requested, postage prepaid, to its address for the giving of notices as
set forth in this Agreement. Any final judgment rendered against a party in any
action or proceeding shall be conclusive as to the subject of such final
judgment and may be enforced in other jurisdictions in any manner provided by
law.
9.12 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same instrument.
9.13 Severability. All provisions contained herein are severable and
in the event that any of them shall be held to be to any extent invalid or
otherwise unenforceable by any court of competent jurisdiction, such provision
shall be construed as if it were written so as to effectuate to the greatest
possible extent the parties' expressed intent; and in every case the remainder
of this Agreement shall not be affected thereby and shall remain valid and
enforceable, as if such affected provision were not contained herein.
9.14 Construction of Agreement; Knowledge. The words "include,"
"includes," and "including" when used herein shall be deemed in each case to be
followed by the words "without limitation." For purposes of this Agreement, and
except as provided in the
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following sentence, the term "knowledge," when used in reference to a
corporation means the actual knowledge of the executive officers of such
corporation after such officers shall have made inquiry that is customary and
appropriate under the circumstances to which reference is made, and when used in
reference to an individual means the actual knowledge of such individual after
the individual shall have made inquiry that is customary and appropriate under
the circumstances to which reference is made.
9.15 Publicity. The parties shall cooperate with each other in the
development and distribution of all news releases and other public disclosures
relating to the transactions contemplated hereby. Neither VantageNet nor the
Stockholders shall issue or make, or cause to have issued or made, any press
release or announcement concerning the transactions contemplated hereby without
the advance approval in writing of the form and substance thereof by ▇▇▇▇▇.▇▇▇
and AAC.
9.16 Mutual Drafting. This Agreement is the joint product of the
parties hereto, and each provision hereof has been subject to the mutual
consultation, negotiation and agreement of such parties, and shall not be
construed for or against any party hereto.
9.17 Specific Performance and Other Remedies. The parties hereto
each acknowledge that the rights of each party to consummate the transactions
contemplated hereby are special, unique and of extraordinary character, and
that, in the event that any party violates or fails or refuses to perform any
covenant or agreement made by it herein, the non-breaching party may be without
an adequate remedy at law. The parties each agree, therefore, that in the event
that either party violates or fails or refuses to perform any covenant or
agreement made by such party herein, the non-breaching party or parties may,
subject to the terms of this Agreement and in addition to any remedies at law
for damages or other relief, institute and prosecute an action in any court of
competent jurisdiction to enforce specific performance of such covenant or
agreement or seek any other equitable relief.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
and Plan of Reorganization as of the date first above written.
▇▇▇▇▇.▇▇▇, INC.
By:/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Its: Senior VP and General Counsel
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▇▇▇▇▇.▇▇▇ ACQUISITION CORP.
By:/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Its: Senior VP and General Counsel
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VANTAGENET, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Its: President
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▇▇▇▇▇▇▇ ▇. TREPANEIR
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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