EXHIBIT 2.1
FIRST AMENDED AND RESTATED
AGREEMENT AND PLAN OF
MERGER AND REORGANIZATION
AMONG
724 SOLUTIONS INC.
SAPPHIRE MERGER SUB, INC.
XXXXXXX.XXX, INC.
AND
XXXXXXXXX XXXXXXXXX, AS
SHAREHOLDERS' AGENT
DATED AS OF MAY 9, 2000
XXXXXXXX & XXXXXXXX LLP
000 XXXXXX XXXXXX
XXX XXXXXXXXX, XX 00000
TABLE OF CONTENTS
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ARTICLE I THE MERGER................................................... 1
1.1 The Merger.................................................. 1
1.2 Closing; Effective Time..................................... 2
1.3 Effect of the Merger........................................ 2
1.4 Articles of Incorporation; Bylaws........................... 2
1.5 Directors and Officers...................................... 2
1.6 Effect on Capital Stock..................................... 2
1.7 Surrender of Certificates................................... 4
1.8 No Further Ownership Rights in Ezlogin Capital Stock........ 6
1.9 Lost, Stolen or Destroyed Certificates...................... 6
1.10 Tax and Accounting Consequences............................. 6
1.11 Fairness Hearing and Exemption from Registration; Legends... 6
1.12 Taking of Necessary Action; Further Action.................. 7
ARTICLE II REPRESENTATIONS AND WARRANTIES OF Ezlogin................... 7
2.1 Organization, Standing and Power............................ 7
2.2 Capital Structure........................................... 8
2.3 Authority................................................... 9
2.4 Financial Statements........................................ 9
2.5 Absence of Certain Changes.................................. 10
2.6 Absence of Undisclosed Liabilities.......................... 10
2.7 Litigation.................................................. 10
2.8 Restrictions on Business Activities......................... 10
2.9 Governmental Authorization.................................. 11
2.10 Title to Personal Property.................................. 11
2.11 Intellectual Property....................................... 11
2.12 Environmental Matters....................................... 12
2.13 Taxes....................................................... 12
2.14 Employee Benefit Plans...................................... 13
2.15 Certain Agreements Affected by the Merger................... 15
2.16 Employee Matters............................................ 15
2.17 Interested Party Transactions............................... 16
2.18 Insurance................................................... 16
2.19 Compliance With Laws........................................ 16
2.20 Minute Books................................................ 16
2.21 Complete Copies of Materials................................ 16
2.22 Brokers' and Finders' Fees.................................. 17
2.23 Voting Agreements; Irrevocable Proxies...................... 17
2.24 Vote Required............................................... 17
2.25 Inventory................................................... 17
2.26 Accounts Receivable......................................... 17
2.27 Board Approval.............................................. 17
2.28 Customers and Suppliers..................................... 17
2.29 Material Contracts.......................................... 17
2.30 No Breach of Material Contracts............................. 18
2.31 Material Third Party Consents............................... 18
2.32 Real Property............................................... 18
2.33 Product Releases............................................ 19
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PAGE
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2.34 Year 2000................................................... 19
2.35 Hearing Documents; Rule 506 Documents....................... 19
2.36 Waiver of Right of First Refusal............................ 19
2.37 Assets and Revenues......................................... 19
2.38 Ezlogin Transaction Expenses................................ 19
2.39 Representations Complete.................................... 19
ARTICLE III REPRESENTATIONS AND WARRANTIES OF 724 SOLUTIONS AND MERGER SUB...
19
3.1 Organization, Standing and Power............................ 19
3.2 Capital Structure........................................... 20
3.3 Authority................................................... 20
3.4 SEC Documents; Financial Statements......................... 20
3.5 Absence of Certain Changes.................................. 21
3.6 Absence of Undisclosed Liabilities.......................... 21
3.7 Litigation.................................................. 21
3.8 Broker's and Finders' Fees.................................. 21
3.9 Board Approval; No Shareholder Approval Required............ 22
3.10 Interim Operations of Merger Sub............................ 22
3.11 Hearing Documents; Rule 506 Documents....................... 22
3.12 Representations Complete.................................... 22
ARTICLE IV CONDUCT PRIOR TO THE EFFECTIVE TIME......................... 22
4.1 Conduct of Business of Ezlogin.............................. 22
4.2 Restriction on Conduct of Business of Ezlogin............... 22
4.3 No Solicitation............................................. 25
ARTICLE V ADDITIONAL AGREEMENTS........................................ 25
5.1 Registration Exemption; Fairness Hearing.................... 25
5.2 Transfer Restrictions and Holders' Agreements............... 26
5.3 Access to Information; Confidentiality...................... 27
5.4 Public Disclosure........................................... 27
5.5 Consents; Cooperation....................................... 27
5.6 Affiliates.................................................. 28
5.7 Legal Requirements.......................................... 28
5.8 Shareholder Approval........................................ 28
5.9 Ezlogin Options and Ezlogin Convertible Securities.......... 29
5.10 Termination of Employee Plans............................... 32
5.11 Granting of 724 Solutions Options........................... 32
5.12 Escrow Agreement............................................ 33
5.13 Expenses.................................................... 33
5.14 Best Efforts and Further Assurances......................... 33
5.15 Employment and Non-Compete Agreements....................... 33
5.16 Notices..................................................... 33
5.17 Notification; Updates to Disclosure Schedule................ 33
5.18 Director and Officer Indemnification........................ 34
5.19 Employee Benefit Plans...................................... 34
5.20 Issuance of Restricted Securities........................... 35
5.21 Amendment of Bonus Share Agreements......................... 35
5.22 Other Actions............................................... 36
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ARTICLE VI CONDITIONS TO THE MERGER.................................... 37
6.1 Conditions to Obligations of Each Party to Effect the
Merger.................................................... 37
6.2 Additional Conditions to Obligations of Ezlogin............. 37
6.3 Additional Conditions to the Obligations of 724 Solutions... 38
ARTICLE VII TERMINATION, AMENDMENT AND WAIVER.......................... 41
7.1 Termination................................................. 41
7.2 Effect of Termination....................................... 41
7.3 Expenses.................................................... 41
7.4 Amendment................................................... 41
7.5 Extension; Waiver........................................... 41
ARTICLE VIII ESCROW AND INDEMNIFICATION................................ 42
8.1 Escrow Fund and Subject Options............................. 42
8.2 Indemnification and Survival................................ 42
8.3 Payment for 724 Solutions Damages........................... 43
8.4 Escrow Period............................................... 43
8.5 Claims upon Escrow Fund..................................... 44
8.6 Objections to Claims........................................ 44
8.7 Resolution of Conflicts; Arbitration........................ 45
8.8 Shareholders' Agent......................................... 45
8.9 Actions of the Shareholders' Agent.......................... 46
8.10 Third-Party Claims.......................................... 46
ARTICLE IX GENERAL PROVISIONS.......................................... 46
9.1 Non-Survival at Effective Time.............................. 46
9.2 Notices..................................................... 47
9.3 Interpretation.............................................. 48
9.4 Counterparts; Facsimile Delivery............................ 48
9.5 Entire Agreement; Nonassignability; Parties in Interest..... 48
9.6 Severability................................................ 48
9.7 Remedies Cumulative......................................... 49
9.8 Governing Law............................................... 49
9.9 Rules of Construction....................................... 49
ANNEXES
Annex I -- Definitions
SCHEDULES
Ezlogin Disclosure Schedule
Ezlogin Disclosure Schedule Update
Other Schedules
Schedule 4.2(o) -- Restrictions on Conduct of Business -- Employee Bonuses
Schedule 5.2(b) -- Non-Employee Shareholders
Schedule 5.6 -- Affiliates
Schedule 5.15(a) -- Key Employees
Schedule 5.15(b) -- Other Employees
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EXHIBITS
Exhibit A -- Agreement of Merger
Exhibit B -- Voting Agreement
Exhibit C-1 -- Employee Holders' Agreement
Exhibit C-2 -- Non-Employee Shareholder Agreement
Exhibit D -- Registration Rights Agreement
Exhibit E -- Escrow Agreement
Exhibit F -- Employment and Non-Competition Agreement
Exhibit G -- Employment Agreement
Exhibit H -- FIRPTA Notice
Exhibit I -- IRS Notice
Exhibit J -- Form of Ezlogin Stock Option Agreement (Immediately
Exercisable)
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FIRST AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
THIS FIRST AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER AND
REORGANIZATION (this "Agreement") is made as of May 9, 2000 by and among
724 SOLUTIONS INC., a corporation amalgamated under the laws of Ontario
("724 Solutions"), SAPPHIRE MERGER SUB, INC., a California corporation ("Merger
Sub"), XXXXXXX.XXX, INC., a California corporation ("Ezlogin"), and Xxxxxxxxx
Xxxxxxxxx, as Shareholders' Agent. As used in this Agreement, certain terms
shall have the meanings set forth in Annex I.
RECITALS
A. The parties hereto have entered into that certain Agreement and Plan of
Merger and Reorganization (the "Original Merger Agreement"), dated as of
March 30, 2000, which provided for the Merger (as defined below) and the
exercise (whether or not then vested) or termination at the Effective Time of
all Ezlogin Options.
B. The parties hereto desire to amend and restate the Original Merger
Agreement as set forth herein to allow the assumption by 724 Solutions of the
Ezlogin Stock Option Plan, subject to confirmation that no shareholder vote of
724 Solutions is required in connection with such assumption.
C. The Boards of Directors of 724 Solutions, Merger Sub and Ezlogin each
have determined that the acquisition of Ezlogin by 724 Solutions through the
merger of Merger Sub with and into Ezlogin pursuant to the terms and subject to
the conditions set forth herein (the "Merger") is in the best interests of their
respective companies and shareholders.
D. Merger Sub is a wholly-owned subsidiary of 724 Solutions.
E. Pursuant to the Merger, each outstanding share of capital stock of
Ezlogin ("Ezlogin Capital Stock") shall be converted into common shares of
724 Solutions, at the rate set forth herein.
F. Ezlogin and 724 Solutions desire to make certain representations,
warranties, covenants and other agreements in connection with the Merger.
G. The parties intend, by executing this Agreement, to adopt a plan of
reorganization within the meaning of Section 368 of the Internal Revenue Code of
1986, as amended (the "Code"), and to cause the Merger to qualify as a
reorganization under the provisions of Section 368(a) of the Code.
H. As an inducement to 724 Solutions to enter into the Original Merger
Agreement, the officers and directors and certain Shareholders previously
entered into the Voting Agreement to vote the shares of Ezlogin Capital Stock
owned by such persons to approve the Merger, each Shareholder who entered into
the Voting Agreement also entered into a Holders' Agreement, the Key Employees
of Ezlogin entered into Employment and Non-Competition Agreements with Ezlogin
and certain Other Employees entered into Employment Agreements with Ezlogin. As
an inducement to 724 Solutions to enter into this Agreement, each Shareholder
who entered into an Employee Shareholders' Agreement has entered into an
Employee Holders' Agreement, which Employee Holders' Agreement amends and
restates in its entirety the Employee Shareholders' Agreement previously entered
into by such Shareholder.
NOW, THEREFORE, in consideration of the covenants and representations set
forth herein, and for other good and valuable consideration, the parties hereto
agree as follows:
ARTICLE I
THE MERGER
1.1 THE MERGER.
(a) Subject to and in accordance with the terms and conditions set forth in
this Agreement, at the Effective Time, Merger Sub shall be merged with and into
Ezlogin, which shall be the surviving corporation (the "Surviving Corporation")
in the Merger, and the separate existence of Merger Sub shall thereupon cease.
The
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name of the Surviving Corporation shall remain "Ezlogin." The Merger shall have
the effects set forth in the applicable provisions of the California Business
Corporations Code ("California Law") and the law of the jurisdiction of
incorporation of any Replacement Merger Sub, if applicable.
(b) The parties hereto acknowledge and agree that, any time prior to the
Effective Time, Merger Sub may transfer and assign to any other wholly-owned
subsidiary of 724 Solutions ("Replacement Merger Sub") all of its right and
interest in and to, and all of its obligations and liabilities under, this
Agreement, without any additional consent or approval by Ezlogin or the Ezlogin
Shareholders, and upon such transfer or assignment, Replacement Merger Sub shall
be deemed to be the Merger Sub for all purposes under this Agreement.
1.2 CLOSING; EFFECTIVE TIME. The closing of the transactions contemplated
hereby (the "Closing") shall take place as soon as practicable, but not later
than the second business day, after the satisfaction or waiver of each of the
conditions set forth in Article VI hereof or at such other time as the parties
hereto agree in writing (the "Closing Date"). The Closing shall take place at
the offices of Xxxxxxxx & Xxxxxxxx LLP, 000 Xxxxxx Xxxxxx, Xxx Xxxxxxxxx,
Xxxxxxxxxx, or at such other location as the parties hereto agree in writing. In
connection with the Closing, the parties hereto shall cause the Merger to be
consummated by filing an agreement of merger, in the form to be attached hereto
as Exhibit A at the Closing ("Agreement of Merger"), together with the required
officers' certificates, with the Secretary of State of the State of California,
in accordance with the relevant provisions of California Law, and filing any
other documents of merger as may be required by the jurisdiction of
incorporation of any Replacement Merger Sub, if applicable (the time of such
filing with the Secretary of State of California being the "Effective Time").
1.3 EFFECT OF THE MERGER. At the Effective Time, the effect of the Merger
shall be as provided in this Agreement, the Agreement of Merger and the
applicable provisions of California Law and the law of the jurisdiction of
incorporation of any Replacement Merger Sub, if applicable. Without limiting the
generality of the foregoing, and subject thereto, at the Effective Time, all the
property, rights, privileges, powers and franchises of Ezlogin and the Merger
Sub shall vest in the Surviving Corporation, and all debts, liabilities and
duties of Ezlogin and the Merger Sub shall become the debts, liabilities and
duties of the Surviving Corporation.
1.4 ARTICLES OF INCORPORATION; BYLAWS.
(a) At the Effective Time, the Articles of Incorporation of Ezlogin, as in
effect immediately prior to the Effective Time, shall be the Articles of
Incorporation of the Surviving Corporation until thereafter amended as provided
by California Law and such Articles of Incorporation; provided, that such
Articles of Incorporation shall be amended and restated as of the Effective Time
in form and substance satisfactory to 724 Solutions.
(b) The Bylaws of Merger Sub, as in effect immediately prior to the
Effective Time, shall be the Bylaws of the Surviving Corporation until
thereafter amended.
1.5 DIRECTORS AND OFFICERS. At the Effective Time, the directors of Merger
Sub, as in effect immediately prior to the Effective Time, shall be the
directors of the Surviving Corporation, until their respective successors are
duly elected or appointed and qualified. The officers of Merger Sub, as in
effect immediately prior to the Effective Time, shall be the officers of the
Surviving Corporation, until their respective successors are duly elected or
appointed and qualified.
1.6 EFFECT ON CAPITAL STOCK.
(a) CONVERSION OF EZLOGIN CAPITAL STOCK. By virtue of the Merger and
without any action on the part of 724 Solutions, Ezlogin, Merger Sub or the
holders of any of Ezlogin's securities, at the Effective Time, each share of
Ezlogin Common Stock issued and outstanding immediately prior to the Effective
Time (excluding any shares cancelled pursuant to Section 1.6(b) and excluding
any Dissenting Shares) will be cancelled and extinguished and automatically
converted into the right to receive the number of shares of 724 Solutions Common
Stock equal to the Exchange Ratio; provided that the maximum number of shares of
724 Solutions Common Stock to be issued in exchange for the acquisition by
724 Solutions of all outstanding shares of Ezlogin Capital Stock and all Ezlogin
Convertible Securities (including, if applicable, 724 Solutions Common Stock to
be reserved for issuance upon exercise of Ezlogin Options assumed by
724 Solutions), and, if applicable, the termination of all outstanding Ezlogin
Options, shall be Eight Hundred Eighty-Eight Thousand Nine Hundred
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Thirty-Four (888,934), reduced as a result of any Dissenting Shares and shares
cancelled pursuant to Section 1.6(b), and increased as a result of the issuance
of any Additional Ezlogin Options or shares of Ezlogin Common Stock issuable
upon the early exercise thereof in accordance with Section 4.2(e)(iv) (the
"Merger Consideration"). The shares of 724 Solutions Common Stock issued as
Merger Consideration shall be subject to the transfer restrictions described in
Section 5.2 and to the provisions for Escrow Shares described in Section 1.7(d)
and Article VIII.
(b) CANCELLATION OF EZLOGIN CAPITAL STOCK OWNED BY EZLOGIN. At the
Effective Time, all shares of Ezlogin Capital Stock that are owned by Ezlogin as
treasury stock shall be cancelled and extinguished without any conversion
thereof.
(c) EXERCISE OR TERMINATION, OR ASSUMPTION, OF EZLOGIN OPTIONS; CONVERSION
OF EZLOGIN CONVERTIBLE SECURITIES. As provided in Section 5.9 hereof, and
subject to Section 5.2 hereof, at the Effective Time, the Ezlogin 1999 Stock
Option Plan (the "Ezlogin Stock Option Plan") shall:
(i) if, prior to the Closing Date, 724 Solutions shall have received
written confirmation from the Nasdaq National Market, reasonably
satisfactory to 724 Solutions and Ezlogin, that no shareholder vote will be
required in connection with such assumption, and such confirmation shall not
have been rescinded (the "Nasdaq Confirmation"), be assumed by
724 Solutions in accordance with Section 5.9; or
(ii) if, prior to the Closing Date, 724 Solutions shall not have
received the Nasdaq Confirmation, be terminated, and each option agreement
covering all Ezlogin Options then outstanding under the Ezlogin Stock Option
Plan shall be amended in accordance with Section 5.9(c)(ii), and all such
Ezlogin Options shall be exercised by the holders thereof, or, if not
exercised prior to or at the Effective Time, be terminated.
Immediately prior to the Effective Time, all Ezlogin Convertible Securities,
whether or not presently convertible or vested, shall be automatically converted
into shares of Ezlogin Common Stock. All Bonus Shares, to the extent not accrued
or paid prior to the Effective Time, shall be treated in accordance with
Section 5.21.
(d) ADJUSTMENTS TO EXCHANGE RATIO. The Exchange Ratio shall be adjusted to
reflect fully the effect of any stock split, reverse stock split, stock dividend
(including any dividend or general distribution of securities convertible into
or exchangeable for 724 Solutions Common Stock or Ezlogin Capital Stock),
reorganization, recapitalization or other like change with respect to
724 Solutions Common Stock or Ezlogin Capital Stock occurring after March 30,
2000 and prior to the Effective Time.
(e) FRACTIONAL SHARES. No fraction of a share of 724 Solutions Common Stock
will be issued, but in lieu thereof each holder of shares of Ezlogin Capital
Stock who would otherwise be entitled to a fraction of a share of 724 Solutions
Common Stock (after aggregating all fractional shares of 724 Solutions Common
Stock to be received by such holder) shall receive from 724 Solutions an amount
of cash (rounded to the nearest whole cent) equal to the product of (i) such
fraction, multiplied by (ii) the 724 Solutions Stock Price, less any amount
required to be withheld under foreign, federal, state or local tax laws.
(f) DISSENTERS' RIGHTS. Any Dissenting Shares shall not be converted into
the right to receive 724 Solutions Common Stock but shall instead be converted
into the right to receive such consideration as may be determined to be due with
respect to such Dissenting Shares pursuant to California Law. Ezlogin agrees
that, except with the prior written consent of 724 Solutions, or as required
under California Law, it will not voluntarily make any payment with respect to,
or settle or offer to settle, any such demand. Each holder of Dissenting Shares
("Dissenting Shareholder") who, pursuant to the provisions of California Law,
becomes entitled to payment of the fair value for shares of Ezlogin Capital
Stock shall receive payment therefor (but only after the value therefor shall
have been agreed upon or finally determined pursuant to such provisions of
California law). If, after the Effective Time, any Dissenting Shares shall lose
their status as Dissenting Shares, 724 Solutions shall issue and deliver, upon
surrender by such Shareholder of certificate or certificates representing shares
of Ezlogin Capital Stock, the number of shares of 724 Solutions Common Stock to
which such Shareholder would otherwise be entitled under this Section 1.6 and
the Agreement of Merger less the number of shares allocable to such Shareholder
that have been deposited in the Escrow Fund (as defined below) in respect of
such shares of 724 Solutions Common Stock pursuant to Section 1.7(d) and
Article VIII hereof.
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(g) CONSIDERATION FOR 724 SOLUTIONS COMMON STOCK. Immediately prior to the
Effective Time, Merger Sub shall, in consideration for 724 Solutions' issuance
and delivery of 724 Solutions Common Stock in the Merger in accordance with
Section 1.6(a), validly issue 9,000 fully paid and nonassessable shares of
common stock of Merger Sub to 724 Solutions; provided that such shares shall be
deemed fully paid for upon 724 Solutions issuance of the 724 Solutions Common
Stock in the Merger.
(h) CAPITAL STOCK OF MERGER SUB. At the Effective Time, each share of
common stock of Merger Sub 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.
Each stock certificate of Merger Sub evidencing ownership of any such shares
shall continue to evidence ownership of such shares of capital stock of the
Surviving Corporation.
1.7 SURRENDER OF CERTIFICATES.
(a) EXCHANGE AGENT. 724 Solutions' transfer agent shall act as exchange
agent (the "Exchange Agent") in the Merger.
(b) 724 SOLUTIONS TO PROVIDE COMMON STOCK AND CASH. Promptly after the
Effective Time, 724 Solutions shall make available to the Exchange Agent for
exchange in accordance with this Article I, through such reasonable procedures
as 724 Solutions may adopt, (i) the shares of 724 Solutions Common Stock
issuable pursuant to Section 1.6(a) (provided that delivery of any shares that
are subject to vesting shall be in book entry form only until such vesting
restrictions have lapsed, following which time such shares shall be delivered
promptly to the holder thereof) in exchange for shares of Ezlogin Capital Stock
outstanding immediately prior to the Effective Time (less the number of shares
of 724 Solutions Common Stock to be deposited into an escrow fund (the "Escrow
Fund") pursuant to the requirements of Article VIII), and (ii) cash in an amount
sufficient to permit payment of cash in lieu of fractional shares pursuant to
Section 1.6(e), less any amount required to be withheld from such cash under
foreign, federal, state or local tax laws.
(c) EXCHANGE PROCEDURES. Subject to Section 1.6(f), promptly after the
Effective Time, the Surviving Corporation shall cause to be mailed to each
holder of record of a certificate or certificates (the "Certificates") that
immediately prior to the Effective Time represented outstanding shares of
Ezlogin Capital Stock, whose shares were converted into the right to receive
shares of 724 Solutions Common Stock (and cash in lieu of fractional shares)
pursuant to Section 1.6, (i) a letter of transmittal (which shall specify that
delivery shall be effected, and risk of loss and title to the Certificates shall
pass, only upon receipt of the Certificates by the Exchange Agent, and shall be
in such form and have such other provisions as 724 Solutions may reasonably
specify), and (ii) instructions for use in effecting the surrender of the
Certificates in exchange for certificates (or book entries in the case of
Unvested Shares and the Shareholders shall not call for certificates to be
issued for such Unvested Shares) representing shares of 724 Solutions Common
Stock (and cash in lieu of fractional shares). Upon surrender of a Certificate
for cancellation to the Exchange Agent or to such other agent or agents as may
be appointed by 724 Solutions, together with such letter of transmittal, duly
completed and validly executed in accordance with the instructions thereto, the
holder of such Certificate shall be entitled to receive in exchange therefor a
certificate (or a book entry in the case of Unvested Shares and the Shareholders
shall not call for certificates to be issued for such Unvested Shares)
representing the number of whole shares of 724 Solutions Common Stock (less the
number of shares of 724 Solutions Common Stock to be deposited in the Escrow
Fund on such holder's behalf pursuant to Article VIII hereof) and payment in
lieu of fractional shares (less any amount required to be withheld from such
cash under foreign, federal, state or local tax laws) that such holder has the
right to receive pursuant to Section 1.6, and the Certificate so surrendered
shall forthwith be canceled. Until so surrendered, each outstanding Certificate
that, prior to the Effective Time, represented shares of Ezlogin Capital Stock
will be deemed from and after the Effective Time, for all corporate purposes to
evidence the ownership of the number of full shares of 724 Solutions Common
Stock into which such shares of Ezlogin Capital Stock shall have been so
converted and the right to receive an amount in cash in lieu of the issuance of
any fractional shares in accordance with Section 1.6.
(d) ESCROW SHARES AND SUBJECT OPTIONS.
(i) As security for the Holders' indemnity obligations as set forth in
Article VIII, (i) ten percent (10%) of the shares of 724 Solutions Common
Stock issued in the Merger in respect of Ezlogin Capital
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Stock outstanding at the Effective Time (the "Escrow Shares") shall be
subject to the escrow described below, and (ii) if 724 Solutions assumes the
Ezlogin Stock Option Plan in connection with the Merger, ten percent (10%)
of the Assumed Options (the "Subject Options") shall be subject to
cancellation as provided below. The Escrow Shares, along with the Subject
Options, shall be available to compensate 724 Solutions for certain damages
as provided in Article VIII; provided, to the extent not used to compensate
724 Solutions for such damages, the Escrow Shares and Subject Options shall
be released, all as provided in Article VIII hereof and the Escrow
Agreement.
(ii) As soon as reasonably practicable after the Effective Time, and
subject to and in accordance with the provisions of Article VIII hereof,
724 Solutions shall distribute to the Escrow Agent a certificate or
certificates representing the Escrow Shares. The Escrow Shares shall be
registered in the name of the Escrow Agent, as nominee for the holders of
Certificates cancelled pursuant to this Section 1.7. The Escrow Shares shall
be withheld on a pro rata basis from the shares of 724 Solutions Common
Stock issuable in respect of each share of Ezlogin Capital Stock pursuant to
Section 1.6 hereof.
(iii) If applicable, the Assumed Options that will be Subject Options
will be determined on a pro rata basis amongst the Optionholders, and shall
consist of ten percent (10%) of all Assumed Options resulting from the
assumption of Ezlogin Options that were vested as of the Closing Date and
ten percent (10%) of all Assumed Options vesting on each vesting date
thereafter (whether or not such vesting would occur prior to or after the
termination of the Escrow Period). The shares of 724 Solutions Common Stock
that will be Escrow Shares will be determined on a pro rata basis amongst
the Holders, and shall consist of ten percent (10%) of all shares of
724 Solutions Common Stock not subject to an Unvested Share Repurchase
Option as of the Closing Date, and, if applicable, ten percent (10%) of all
shares of 724 Solutions Common Stock for which the Unvested Share Repurchase
Option will lapse on each lapsing date thereafter (whether or not such
lapsing would occur prior to or after the termination of the Escrow Period).
(iv) If any Subject Option is exercised prior to the termination of the
Escrow Period (or after the Escrow Period, if such Subject Option has been
subject to cancellation to satisfy any unsatisfied claims specified in any
Officers' Certificate delivered to the Escrow Agent and the Shareholders'
Agent prior to the termination of the Escrow Period with respect to facts
and circumstances existing prior to the expiration of the Escrow Period and
until such claims have been resolved), the resulting shares of
724 Solutions Common Stock (the "Subject Shares") shall be delivered to the
Escrow Fund in the name of the Escrow Agent as nominee for the Holder and
shall be treated as Escrow Shares hereunder and under the Escrow Agreement.
As soon as reasonably possible after any delivery of Subject Shares to the
Escrow Agent, 724 Solutions and the Shareholders' Agent will deliver to the
Escrow Agent a new Schedule 1 to the Escrow Agreement, reflecting the
additional Subject Shares and the change in each Holder's pro rata portion
of the Escrow Fund.
(e) DISTRIBUTIONS WITH RESPECT TO UNEXCHANGED SHARES. No dividends or other
distributions with respect to 724 Solutions Common Stock with a record date
after the Effective Time will be paid to the holder of any unsurrendered
Certificate with respect to the shares of 724 Solutions Common Stock represented
thereby until the holder of record of such Certificate shall surrender such
Certificate. Subject to applicable law, following surrender of any such
Certificate, there shall be paid to the record holder of the certificates
representing whole shares of 724 Solutions Common Stock issued in exchange
therefor, without interest, at the time of such surrender, the amount of any
such dividends or other distributions with a record date after the Effective
Time theretofore payable (but for the provisions of this Section 1.7(e)) with
respect to such shares of 724 Solutions Common Stock.
(f) TRANSFERS OF OWNERSHIP. If any certificate for shares of 724 Solutions
Common Stock is to be issued in a name other than that in which the Certificate
surrendered in exchange therefor is registered, it will be a condition of the
issuance thereof that the Certificate so surrendered will be properly endorsed
and otherwise in proper form for transfer and that the person requesting such
exchange will have paid to 724 Solutions or any agent designated by it any
transfer or other taxes required by reason of the issuance of a certificate for
shares of 724 Solutions Common Stock in any name other than that of the
registered holder of the Certificate surrendered, or established to the
reasonable satisfaction of 724 Solutions or any agent designated by it that such
tax has been paid or is not payable.
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(g) NO LIABILITY. Notwithstanding anything to the contrary in this
Section 1.7, none of the Exchange Agent, the Surviving Corporation or any party
hereto shall be liable to any person for any amount properly paid to a public
official pursuant to any applicable abandoned property, escheat or similar law.
(h) DISSENTING SHARES. The provisions of this Section 1.7 shall also apply
to Dissenting Shares that lose their status as such, except that the obligations
of 724 Solutions under this Section 1.7 shall commence on the date of loss of
such status and the holder of such shares shall be entitled to receive in
exchange for such shares the number of shares of 724 Solutions Common Stock and
cash in lieu of any fractional shares to which such holder is entitled pursuant
to Section 1.6 hereof, subject to the provision for Escrow Shares in
Section 1.7(d) and Article VIII.
1.8 NO FURTHER OWNERSHIP RIGHTS IN EZLOGIN CAPITAL STOCK. All shares of
724 Solutions Common Stock issued upon the surrender for exchange of shares of
Ezlogin Capital Stock in accordance with the terms hereof (including any Escrow
Shares and any cash paid in lieu of fractional shares) shall be deemed to have
been issued in full satisfaction of all rights pertaining to such shares of
Ezlogin Capital Stock, and there shall be no further registration of transfers
on the records of the Surviving Corporation of shares of Ezlogin Capital Stock
that were outstanding immediately prior to the Effective Time. If, after the
Effective Time, Certificates are presented to the Surviving Corporation for any
reason, they shall be canceled and exchanged as provided in this Article I.
1.9 LOST, STOLEN OR DESTROYED CERTIFICATES. In the event any Certificates
shall have been lost, stolen or destroyed, the Exchange Agent shall issue in
exchange for such lost, stolen or destroyed Certificates, upon the making of an
affidavit of that fact by the holder thereof, such shares of 724 Solutions
Common Stock (and cash in lieu of fractional shares) as may be required pursuant
to Section 1.6; provided, however, that 724 Solutions may, in its discretion and
as a condition precedent to the issuance thereof, require the owner of such
lost, stolen or destroyed Certificates to deliver a bond in such sum as it may
reasonably direct as indemnity against any claim that may be made against
724 Solutions, the Surviving Corporation or the Exchange Agent with respect to
the Certificates alleged to have been lost, stolen or destroyed.
1.10 TAX AND ACCOUNTING CONSEQUENCES. The parties intend that the Merger
shall (a) constitute a reorganization within the meaning of Section 368 of the
Code and (b) qualify for accounting treatment as a purchase transaction under
U.S. GAAP.
1.11 FAIRNESS HEARING AND EXEMPTION FROM REGISTRATION; LEGENDS.
(a) As provided in, and subject to, Section 5.1 hereof, 724 Solutions
intends to apply for a permit to be issued by the California Commissioner of
Corporations after a public hearing on the fairness of the terms and conditions
of the Merger (the "Fairness Hearing") in order to issue the shares of
724 Solutions Common Stock to the Ezlogin Shareholders pursuant to an exemption
from the registration requirements of the Securities Act of 1933, as amended
(the "Securities Act") provided by Section 3(a)(10) thereof (the "3(a)(10)
Exemption"). In the event 724 Solutions shall not have received a favorable
determination in the Fairness Hearing and a Permit covering all of the shares of
724 Solutions Common Stock to be issued in the Merger such that the issuance
qualifies for exemption under the 3(a)(10) Exemption, the 724 Solutions Common
Stock shall, provided such exemption is available for the shares of
724 Solutions Common Stock to be issued in the Merger, be issued in a private
placement as "restricted securities" as defined under Rule 144 of the Securities
Act and will be subject to the following legend, which legend is subject to
approval by The Toronto Stock Exchange:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT
AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"). THESE SECURITIES MAY NOT BE SOLD, TRANSFERRED,
ASSIGNED OR HYPOTHECATED UNLESS (A) THERE IS AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE ACT COVERING SUCH SECURITIES, OR (B) A VALID EXEMPTION
THEREFROM AND THE COMPANY RECEIVES AN OPINION OF COUNSEL FOR THE HOLDER OF
THESE SECURITIES REASONABLY SATISFACTORY TO THE COMPANY, STATING THAT SUCH
SALE, TRANSFER, ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM THE REGISTRATION
AND PROSPECTUS DELIVERY REQUIREMENTS OF THE SECURITIES ACT.
6
724 Solutions agrees that it will not unreasonably require an opinion of
counsel for any transfer made pursuant to Rule 144 under the Securities Act. The
legend set forth above shall be removed from the certificate representing shares
of 724 Solutions Common Stock at the request of the holder thereof at such time
as they become eligible for resale pursuant to Rule 144(k) under the Securities
Act, which request shall be accompanied by the favorable opinion of legal
counsel, reasonably satisfactory to 724 Solutions, concerning compliance with
the conditions of Rule 144(k).
(b) Regardless of whether 724 Solutions receives a favorable determination
in the Fairness Hearing, the shares of 724 Solutions Common Stock to be issued
in connection with the Merger will be subject to the following legend, which
legend is subject to approval by The Toronto Stock Exchange:
THE SHARES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS OF
[AN EMPLOYEE HOLDERS' AGREEMENT] [A NON-EMPLOYEE SHAREHOLDERS'
AGREEMENT], DATED , 2000, A COPY OF WHICH MAY BE OBTAINED
FROM THE COMPANY.
The legend set forth above shall be removed from the certificate
representing shares of 724 Solutions Common Stock at the request of the holder
thereof at such time as the restrictions set forth in the applicable Holders'
Agreement expire.
(c) In addition, 724 Solutions may place on the certificates representing
shares of 724 Solutions Common Stock issued in the Merger other appropriate
legends pursuant to applicable law.
1.12 TAKING OF NECESSARY ACTION; FURTHER ACTION. If, at any time after the
Effective Time, any further action is necessary or desirable to carry out the
purposes of this Agreement and to vest the Surviving Corporation with full
right, title and possession to all assets, property, rights, privileges, powers
and franchises of Ezlogin, the officers and directors of Ezlogin and the
Surviving Corporation are fully authorized in the name of their respective
corporation or otherwise to take, and will take, all such lawful and necessary
action, so long as such action is not inconsistent with this Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF EZLOGIN
Except as disclosed in a document dated March 30, 2000 attached as a
schedule to the Original Agreement and delivered by Ezlogin to 724 Solutions
prior to the execution and delivery of the Original Agreement, the parts of
which are numbered according to the relevant sections of this Agreement, as
updated in a document of even date herewith attached as a schedule to this
Agreement, the paragraphs of which are numbered according to the sections of the
original document being updated (as so updated, the "Ezlogin Disclosure
Schedule"), Ezlogin represents and warrants to 724 Solutions as follows:
2.1 ORGANIZATION, STANDING AND POWER.
(a) Ezlogin is a corporation duly organized, validly existing and in good
standing under the laws of California. Ezlogin has the corporate power to own
its properties and to carry on its business as now being conducted and as
currently proposed by Ezlogin to be conducted and is duly qualified to do
business and is in good standing in each jurisdiction in which the failure to be
so qualified and in good standing would have a Material Adverse Effect. Ezlogin
has delivered a true and correct copy of the Articles of Incorporation and
Bylaws of Ezlogin, each as amended to March 30, 2000, to 724 Solutions. Ezlogin
is not in violation of any of the provisions of its Articles of Incorporation or
Bylaws, as both are amended through March 30, 2000.
(b) Except as set forth on Schedule 2.1 to the Ezlogin Disclosure Schedule,
Ezlogin currently does not, directly or indirectly, own any equity or similar
interest in, or any interest convertible or exchangeable or exercisable for, any
equity or similar interest in, any corporation, partnership, joint venture or
other business association or entity, nor has Ezlogin ever, directly or
indirectly, owned such interests.
(c) Ezlogin is not conducting, and has never conducted, its business or any
of its operations under any names other than Xxxxxxx.xxx, Inc. or ePorter, Inc.
or substantially similar variations thereof.
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2.2 CAPITAL STRUCTURE.
(a) The authorized capital stock of Ezlogin consists of (i) 25,000,000
shares of Common Stock, par value $0.001 per share ("Ezlogin Common Stock"), and
(ii) 9,100,000 shares of preferred stock, par value $0.001 per share, of which
2,400,000 shares have been designated as Series A Preferred Stock and 6,700,000
shares have been designated as Series B Preferred Stock. As of May 9, 2000,
there are (i) 7,262,990 shares of Ezlogin Common Stock issued and outstanding,
(ii) 2,400,000 shares of Series A Preferred Stock issued and outstanding, and
(iii) 3,701,665 shares of Series B Preferred Stock issued and outstanding. There
are no other outstanding shares of capital stock or voting securities and no
outstanding commitments to issue any shares of capital stock or voting
securities, other than pursuant to the exercise of options outstanding as of
May 9, 2000 under the Ezlogin Stock Option Plan or the conversion of Preferred
Stock outstanding on May 9, 2000 into Ezlogin Common Stock. Attached to or as
set forth in Schedule 2.2 to the Ezlogin Disclosure Schedule is a true and
correct list of Ezlogin's Shareholders, Optionholders and any persons with
rights to acquire Ezlogin securities (showing the name of each holder, they type
of right, the number of shares subject to the right, and the exercise price,
vesting and other restrictions applicable to each such right), including,
without limitation, any rights to acquire Ezlogin securities held by employees,
consultants or other third parties, as compensation for services rendered, upon
the achievement of predetermined goals, upon termination of agreements between
Ezlogin and such persons, or for any other reason ("Bonus Shares"), which list
will be updated prior to Closing to reflect any changes thereto (which changes
are in any event subject to the restrictions imposed under Section 4.2 below).
All outstanding shares of Ezlogin Capital Stock are duly authorized, validly
issued, fully paid and non-assessable, are free of any liens or encumbrances
(other than any liens or encumbrances created by the holder thereof), and are
not subject to preemptive rights or rights of first refusal created by statute,
the Articles of Incorporation or Bylaws of Ezlogin or, except as set forth on
Schedule 2.2 of the Ezlogin Disclosure Schedule, any agreement to which Ezlogin
is a party or by which it is bound.
(b) Ezlogin has reserved 3,000,000 shares of Common Stock for issuance to
employees, consultants and directors, pursuant to the Ezlogin Stock Option Plan,
of which as of May 9, 2000, 226,000 shares have been issued pursuant to option
exercises or direct stock purchases, 1,974,833 shares are subject to
outstanding, unexercised options, and 799,167 shares are available for future
grant thereunder. Except for (i) the rights created pursuant to this Agreement,
(ii) Ezlogin's right to repurchase any unvested shares under the Ezlogin Stock
Option Plan, to the extent indicated on Schedule 2.2 (showing the repurchase
price and the schedule for the lapsing of any repurchase right), and (iii) as
otherwise set forth on Schedule 2.2 of the Ezlogin Disclosure Schedule, there
are no other options, warrants, calls, rights, commitments or agreements of any
character to which Ezlogin is a party or by which it is bound obligating Ezlogin
to issue, deliver, sell, repurchase or redeem, or cause to be issued, delivered,
sold, repurchased or redeemed, any shares of capital stock of Ezlogin or
obligating Ezlogin to grant, extend, accelerate the vesting of, change the price
of, or otherwise amend or enter into any such option, warrant, call, right,
commitment or agreement.
(c) Except for the agreements contemplated by this Agreement, or as
otherwise set forth on Schedule 2.2 of the Ezlogin Disclosure Schedule, there
are no contracts, commitments or agreements relating to voting, purchase or sale
of Ezlogin's capital stock (i) between or among Ezlogin and any of its
securityholders or (ii) to Ezlogin's Knowledge, between or among any of
Ezlogin's securityholders.
(d) The terms of the Ezlogin Stock Option Plan and the applicable stock
option agreements permit the termination or assumption of the options to
purchase Ezlogin Common Stock as provided in this Agreement, without the consent
or approval of the holders of such securities, the Ezlogin Shareholders, or
otherwise. Except as contemplated hereby or as otherwise set forth on
Schedule 2.2 of the Ezlogin Disclosure Schedule, none of the outstanding options
permit any accelerated vesting or exercisability of those options by reason of
the Merger or any other transactions contemplated by this Agreement. True and
complete copies of all agreements and instruments relating to or issued under
the Ezlogin Stock Option Plan or relating to any other Ezlogin Convertible
Securities have been made available to 724 Solutions and such agreements and
instruments have not been amended, modified or supplemented, and there are no
agreements to amend, modify or supplement such agreements or instruments in any
case from the form provided to 724 Solutions, except as contemplated by
Section 5.9 of this Agreement.
8
(e) All outstanding shares of Ezlogin Capital Stock and all outstanding
Ezlogin Options were issued in compliance with all applicable federal, state and
foreign securities laws.
2.3 AUTHORITY.
(a) Ezlogin has all requisite corporate power and authority to enter into
this Agreement and to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of Ezlogin (other than the approval of the
Shareholders of Ezlogin described in Section 5.8 or Section 5.20). This
Agreement has been duly executed and delivered by Ezlogin and, assuming the due
authorization, execution and delivery of this Agreement by 724 Solutions or
Merger Sub, constitutes the valid and binding obligation of Ezlogin enforceable
against Ezlogin in accordance with its terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium and other similar laws and
equitable principles relating to or limiting creditors' rights generally and by
general principles of equity.
(b) The execution and delivery of this Agreement by Ezlogin does not, and
the execution by Ezlogin of the agreements contemplated by this Agreement and
the consummation by Ezlogin and the Shareholders and Optionholders of the
transactions contemplated hereby will not, conflict with, or result in any
violation of, or default under (with or without notice or lapse of time, or
both), or give rise to a right of termination, cancellation or acceleration of
any obligation or loss of any benefit under (i) any provision of the Articles of
Incorporation or Bylaws of Ezlogin, as amended, or (ii) any material mortgage,
indenture, lease, contract or other agreement or instrument, permit, franchise,
license, judgment, order, decree, statute, law, ordinance, rule or regulation
applicable to Ezlogin or any of its properties or assets except, in the case of
clause (ii) for any such conflict, violation, default, termination,
cancellation, acceleration or loss which is set forth on Schedule 2.3. No
consent, approval, order or authorization of, or registration, declaration or
filing with, any court, administrative agency or commission or other
governmental authority or instrumentality ("Governmental Entity") is required by
or with respect to Ezlogin in connection with the execution and delivery of this
Agreement or the consummation of the transactions contemplated hereby or
thereby, except for (i) the filing of the Agreement of Merger, together with the
required officers' certificates, as provided in Section 1.2 and any other merger
documents required to be filed by the law of the jurisdiction of incorporation
of any Replacement Merger Sub, if applicable; (ii) any filings as may be
required under applicable state, provincial, federal, local or foreign
securities laws and other consents, authorizations, filings, approvals and
registrations as may be required by NASDAQ or The Toronto Stock Exchange or
other applicable stock exchanges, (iii) the filing by 724 Solutions of an
application for qualification by permit with the State of California pursuant to
Section 25121 of California Law; and (iv) such other consents, authorizations,
filings, approvals and registrations that, if not obtained or made, would not
prevent, or materially alter or delay any of the transactions contemplated by
this Agreement.
2.4 FINANCIAL STATEMENTS. Ezlogin has delivered to 724 Solutions its
unaudited financial statements as at and for the period from January 21, 1999
(date of inception) to December 31, 1999 and for the two-month period ending
February 29, 2000 (the "Financial Statements"). The Financial Statements have
been prepared in accordance with United States generally accepted accounting
principles ("GAAP") applied on a consistent basis throughout the periods
indicated and with each other, except that the Financial Statements do not have
all required GAAP disclosures or a statement of shareholders' equity. The
Financial Statements were complete (except for omitted GAAP disclosures and the
statement of shareholders' equity) and correct in all material respects as of
their respective dates, and fairly present the financial condition and operating
results of Ezlogin, as of the dates, and for the periods, indicated therein,
subject to normal audit adjustments, which, as of March 30, 2000, are not
expected to be material, and which, as of the Effective Time, will not be
material. Ezlogin maintains and will continue to maintain an adequate system of
internal controls established and administered in accordance with GAAP;
provided, that the accounting software used by Ezlogin in connection with its
maintenance of such system is as appropriate for companies at a comparable stage
of development. As of March 30, 2000, Ezlogin has provided to 724 Solutions'
accountants all information reasonably requested by such accountants as of
March 30, 2000 in connection with the conduct of their audit of Ezlogin. As of
the Effective Time, Ezlogin shall have provided to 724 Solutions' accountants
all information reasonably requested by such accountants, in connection with the
conduct of their audit of Ezlogin, and shall not have failed to
9
provide any information that could reasonably considered to be material to such
audit, whether or not such information was specifically requested by the
accountants.
2.5 ABSENCE OF CERTAIN CHANGES. Since December 31, 1999 (the "Ezlogin
Balance Sheet Date"), except as listed on Schedule 2.5 of the Ezlogin Disclosure
Schedule, Ezlogin has conducted its business in the ordinary course consistent
with past practice and there has not occurred: (i) any change, event or
condition (whether or not covered by insurance) that has resulted in, or might
reasonably be expected to result in, a Material Adverse Effect to Ezlogin;
(ii) any acquisition, sale or transfer of any material asset of Ezlogin;
(iii) any change in accounting methods or practices (including any change in
depreciation or amortization policies or rates) by Ezlogin or any revaluation by
Ezlogin of any of its respective assets; (iv) any declaration, setting aside, or
payment of a dividend or other distribution with respect to the shares of
Ezlogin, or any direct or indirect redemption, purchase or other acquisition by
Ezlogin of any of its shares of capital stock, other than repurchases of stock
as a result of termination of employees in accordance with the Ezlogin Stock
Option Plan; (v) any amendment or change to the Articles of Incorporation or
Bylaws of Ezlogin; (vi) any increase in or modification of the compensation or
benefits payable or to become payable by Ezlogin to any of its respective
directors or employees or (vii) any oral or written agreement or understanding
by Ezlogin to do any of the things described in the preceding clauses (i)
through (vi) (other than negotiations with 724 Solutions and its representatives
regarding the transactions contemplated by this Agreement).
2.6 ABSENCE OF UNDISCLOSED LIABILITIES. Ezlogin has no material obligations
or liabilities of any nature (matured or unmatured, fixed or contingent), other
than (i) those set forth or adequately provided for in the Balance Sheet
included in the Financial Statements as of December 31, 1999 (the "Ezlogin
Balance Sheet"), (ii) those incurred in the ordinary course of business since
the Ezlogin Balance Sheet Date and consistent with past practice; and
(iii) those incurred in connection with the execution of this Agreement.
2.7 LITIGATION.
(a) Except as set forth in Schedule 2.7 of the Ezlogin Disclosure Schedule,
there is no private or governmental action, suit, proceeding, claim, arbitration
or investigation pending before any agency, court or tribunal, foreign or
domestic, or, to Ezlogin's Knowledge, threatened, against Ezlogin or any of its
properties or officers or directors (in their capacities as such). There is no
judgment, decree or order against Ezlogin or any of its directors or officers
(in their capacities as such), that could prevent, enjoin, or materially alter
or delay any of the transactions contemplated by this Agreement, or that could
be reasonably likely to have a Material Adverse Effect on Ezlogin. Schedule 2.7
of the Ezlogin Disclosure Schedule also lists all litigation that Ezlogin has
pending against other parties.
(b) To the Knowledge of Ezlogin, there are no claims, demands, damages,
actions, causes of action, suits or proceedings, fixed or contingent, matured or
unmatured, of whatever nature, character, type or description that have been or
in the future might be asserted by Shareholders, Optionholders, or other holders
of other rights or interests in the Ezlogin Capital Stock (or by any other
person as successor to such Shareholders, optionholders or other holders)
against Ezlogin or against 724 Solutions or Merger Sub, or any of their
respective predecessors, successors or assigns, any past or present, direct or
indirect, partner, subsidiary, or affiliated entity or corporation, or any past
or present employee, agent, representative, attorney, officer, director or
stockholder of any of them acting in its capacity as such an employee, agent,
representative, attorney, officer, director or stockholder, arising out of facts
or circumstances occurring at any time on or prior to March 30, 2000 and
relating to such person's ownership of Ezlogin Capital Stock or any rights or
options to acquire Ezlogin Capital Stock (either beneficially or of record),
whether based on tort, contract (express or implied), or any federal, state or
local law, statute or regulation, at law or in equity, or any act or omission on
the part of such parties, other than any matters relating to Dissenting Shares.
2.8 RESTRICTIONS ON BUSINESS ACTIVITIES. There is no agreement, judgment,
injunction, order or decree binding upon Ezlogin that has or could reasonably be
expected to have the effect of prohibiting or impairing any business practice of
Ezlogin, as currently conducted or as currently proposed to be conducted by
Ezlogin, any acquisition of property by Ezlogin, or the conduct of business by
Ezlogin as currently conducted or as currently proposed to be conducted by
Ezlogin.
10
2.9 GOVERNMENTAL AUTHORIZATION. Ezlogin has obtained each federal, state,
county, local or foreign governmental consent, license, permit, grant, or other
authorization of a Governmental Entity (i) pursuant to which Ezlogin currently
operates or holds any interest in any of its properties or (ii) that is required
for the operation of Ezlogin's business or the holding of any such interest
((i) and (ii) herein collectively called "Ezlogin Authorizations"), and all of
such Ezlogin Authorizations are in full force and effect, expect where the
failure to obtain or have any such Ezlogin Authorizations could not reasonably
expected to have a Material Adverse Effect on Ezlogin.
2.10 TITLE TO PERSONAL PROPERTY. Ezlogin has good and marketable title to,
or with respect to leased properties and assets, valid leasehold interests in,
all of its personal properties, interests in personal properties and assets,
reflected in the Ezlogin Balance Sheet, or acquired after the Ezlogin Balance
Sheet Date (except properties, interests in properties and assets sold or
otherwise disposed of since the Ezlogin Balance Sheet Date, in the ordinary
course of business), which assets and properties are listed on Schedule 2.10
hereof (other than any individual asset or property with a cost of less than
$5,000), free and clear of all mortgages, liens, pledges, charges or
encumbrances of any kind or character, except (i) the lien of current taxes not
yet due and payable, (ii) such imperfections of title, liens and easements as do
not and will not materially detract from or interfere with the use of the
properties subject thereto or affected thereby, or otherwise impair business
operations involving such properties and (iii) liens securing debt that is
reflected on the Ezlogin Balance Sheet ("Permitted Liens"). The plants, property
and equipment of Ezlogin that are used in the operations of its business are in
good operating condition and repair, subject to normal wear and tear. All
personal properties used in the operations of Ezlogin are reflected in the
Ezlogin Balance Sheet to the extent United States GAAP require the same to be
reflected.
2.11 INTELLECTUAL PROPERTY.
(a) Ezlogin owns, licenses or has valid and marketable title in or rights to
use all the U.S. or foreign patent, patent application, trademark (whether
registered or unregistered), trademark application, trade name, domain name,
fictitious business name, service xxxx (whether registered or unregistered),
service xxxx application, copyright (whether registered or unregistered and
whether or not relating to a published work), copyright registration
application, maskwork, maskwork registration application, trade secret, know
how, rights in data or databases, invention, or other proprietary right, all
licenses, sublicenses and agreements related to the foregoing, and any other
intellectual property right ("Intellectual Property") that are used, currently
proposed by Ezlogin to be used, or necessary for the conduct of the business of
Ezlogin as currently conducted or currently proposed to be conducted by Ezlogin,
free and clear of all liens and encumbrances other than Permitted Liens. Ezlogin
has not (i) licensed any of its Intellectual Property in source code form to any
party; (ii) entered into any exclusive agreements relating to its Intellectual
Property with any party; or (iii) entered into any source code escrow
agreements. The source code and system documentation relating to any software
included in the Intellectual Property have at all times been maintained in
confidence and have been disclosed only to employees and consultants having a
"need to know" of the contents thereof in connection with their duties to
Ezlogin, and who have executed appropriate confidentiality agreements in
connection therewith.
(b) Schedule 2.11 lists (i) all patents and patent applications and all
registered and unregistered trademarks, trade names and service marks,
registered copyrights and maskworks, and all applications therefor, included in
the Intellectual Property of Ezlogin, including the jurisdictions in which each
such Intellectual Property right has been issued or registered or in which any
application for such issuance and registration has been filed, (ii) all
licenses, sublicenses and other agreements as to which Ezlogin is a party and
pursuant to which any person is authorized to use any Intellectual Property of
Ezlogin, and (iii) all licenses, sublicenses and other agreements as to which
Ezlogin is a party and pursuant to which Ezlogin is authorized to use any third
party Intellectual Property, other than end user licenses entered into in the
ordinary course of business relating to off-the-shelf "shrinkwrap" software with
a purchase price per copy of less than $5,000 ("Third Party Intellectual
Property Rights").
(c) To Ezlogin's Knowledge, there is no unauthorized use, disclosure,
infringement or misappropriation of any Intellectual Property rights of Ezlogin
or any Third Party Intellectual Property Rights by any third party, including by
any employee or former employee of Ezlogin. Ezlogin has not entered into any
agreement to indemnify any other person against any charge of infringement of
any Intellectual Property, other than
11
indemnification provisions contained in purchase orders or license agreements
arising in the ordinary course of business, containing such terms as are typical
for the business, products and services of Ezlogin.
(d) Ezlogin is not, nor will it be as a result of the execution and delivery
of this Agreement or the performance of its obligations under this Agreement, in
material breach of any license, sublicense or other agreement relating to the
Intellectual Property of Ezlogin or Third Party Intellectual Property Rights.
(e) All patents and registered trademarks, service marks and copyrights held
by Ezlogin are valid and subsisting. Ezlogin is not infringing and has not at
any time infringed (either through the conduct of its business or by the
manufacturing, marketing, licensing, use or sale of its products and services)
any license, patent, copyright, service xxxx, trademark, trade name, trade
secret or other Intellectual Property or proprietary rights of any other person
or third party. Ezlogin has not received any notice or other communication (in
writing or otherwise) of any actual, alleged, possible or potential infringement
of any Intellectual Property or other proprietary right owned or licensed to any
other person or third party. Ezlogin has not been sued or threatened to be sued
in any suit, action or proceeding that involves a claim of infringement or
violation of any Intellectual Property or other proprietary right of any third
party. Ezlogin has not brought any action, suit or proceeding for infringement
of Intellectual Property of Ezlogin or breach of any license or agreement
involving Intellectual Property of Ezlogin against any third party.
(f) Ezlogin has secured valid written assignments from all consultants and
employees who contributed to the creation or development of Intellectual
Property of Ezlogin of all rights to such contributions that Ezlogin does not
already own by operation of law.
(g) Ezlogin has taken all necessary and appropriate steps to protect and
preserve the confidentiality of all Intellectual Property of Ezlogin not
otherwise protected by patents, patent applications or copyright ("Confidential
Information"). All use, disclosure or appropriation of Confidential Information
owned by Ezlogin by or to a third party has been pursuant to the terms of a
written agreement between Ezlogin and such third party. All use, disclosure or
appropriation of Confidential Information not owned by Ezlogin has been pursuant
to the terms of a written agreement between Ezlogin and the owner of such
Confidential Information, or is otherwise lawful.
(h) Except as set forth on Schedule 2.11 of the Ezlogin Disclosure Schedule,
there are no actions that must be taken by Ezlogin within one hundred twenty
(120) days after March 30, 2000 that, if not taken, will result in the loss of
any Intellectual Property, including the payment of any registration,
maintenance or renewal fees or the filing of any responses to PTO office
actions, documents, applications or certificates for the purposes of obtaining,
maintaining, perfecting or preserving or renewing any Intellectual Property of
Ezlogin.
(i) Ezlogin is the sole owner of all "Propriete Industrielle" (as defined in
the "Altran Agreement" (as defined below)) developed by ALTRAN Technologies or
its employees, under or pursuant to that certain Proposition Technique &
Financiere (the "Altran Agreement"), between Ezlogin and ALTRAN Technologies,
dated March 12, 1999 (the "Altran IP"). For all purposes under this Agreement,
the Intellectual Property of Ezlogin (or a like phrase) shall be deemed to
include the Altran IP.
2.12 ENVIRONMENTAL MATTERS. Ezlogin has not caused or allowed toxic or
other hazardous wastes or other like materials to be stored, spilled or
otherwise released on any property or location where Ezlogin currently conducts
or previously conducted its business, nor does Ezlogin have Knowledge of the
presence of any such toxic or other hazardous wastes or like materials on such
premises, including the existence of storage tanks on such property.
2.13 TAXES.
(a) Except as disclosed on Schedule 2.13, Ezlogin has timely filed all Tax
Returns that it was required to file, and such Tax Returns are true, correct and
complete. All Taxes shown to be payable on such Tax Returns or on subsequent
assessments with respect thereto have been paid in full on a timely basis, and
no other Taxes are payable by Ezlogin with respect to any period ending prior to
the date of the Original Merger Agreement, whether or not shown due or
reportable on such Tax Returns, other than Taxes for which adequate accruals
have been provided in its Financial Statements. Ezlogin has no material
liability for unpaid Taxes accruing after the
12
date of its latest Financial Statements except for Taxes incurred in the
ordinary course of business. There are no liens for Taxes on the properties of
Ezlogin, other than liens for Taxes not yet due and payable.
(b) Ezlogin has received extensions of time (a copy of such extension being
attached hereto as Schedule 2.13) to file all US federal or state income Tax
Returns required to be filed by it for any taxable period ending on or before
March 30, 2000 and as such has not filed any such Tax Returns and has no income
Tax Returns that have been audited or that currently are the subject of audit.
Schedule 2.13 lists all other Tax Returns filed by Ezlogin since its inception
and none of these returns have been or are currently the subject of an audit.
Ezlogin has delivered or made available to 724 Solutions correct and complete
copies of all such Tax Returns filed and any examination reports or statement of
deficiencies assessed or agreed to by Ezlogin in connection therewith. Except as
disclosed on Schedule 2.13 of the Ezlogin Disclosure Schedule, Ezlogin has not
waived any statute of limitations in respect of any Tax or agreed to an
extension of time with respect to any Tax assessment or deficiency.
(c) Ezlogin is not a party to or bound by any tax indemnity agreement, tax
sharing agreement or similar contract. Ezlogin is not a party to any joint
venture, partnership, or other arrangement or contract that could be treated as
a partnership or "disregarded entity" for United States federal income tax
purposes.
(d) Ezlogin is not obligated under any agreement, contract or arrangement
that may result in the payment of any amount that would not be deductible by
reason of Section 280G or Section 404 of the Code (whether as a result of the
transactions contemplated by this Agreement or otherwise).
(e) Ezlogin has not been and will not be required to include any material
adjustment in Taxable income for any Tax period (or portion thereof) pursuant to
Section 481 or 263A of the Code or any comparable provision under state or
foreign Tax laws as a result of transactions, events or accounting methods
employed prior to the Merger. Ezlogin has not filed or will not file any consent
to have the provisions of paragraph 341(f)(2) of the Code (or comparable
provisions of any state Tax laws) apply to Ezlogin. Ezlogin has not filed any
disclosures under Section 6662 or comparable provisions of state, local or
foreign law to prevent the imposition of penalties with respect to any Tax
reporting position taken on any Tax Return. Ezlogin is not currently and has not
been a United States real property holding corporation (within the meaning of
Section 897(c)(2) of the Code) during the applicable periods specified in
Section 897(c)(1)(A)(ii) of the Code.
(f) For purposes of this Agreement, the following terms have the following
meanings: "Tax" (and, with correlative meaning, "Taxes" and "Taxable") means
(i) any net income, alternative or add-on minimum tax, gross income, gross
receipts, sales, use, ad valorem, transfer, franchise, profits, license,
withholding, payroll, employment, excise, severance, stamp, occupation, premium,
property, environmental or windfall profit tax, custom, duty or other tax,
governmental fee or other like assessment or charge of any kind whatsoever,
together with any interest or any penalty, addition to tax or additional amount
imposed by any governmental entity (a "Tax Authority") responsible for the
imposition of any such tax (domestic or foreign), (ii) any liability for the
payment of any amounts of the type described in (i) as a result of being a
member of an affiliated, consolidated, combined or unitary group for any Taxable
period, and (iii) any liability for the payment of any amounts of the type
described in (i) or (ii) as a result of being a transferee of or successor to
any person or as a result of any express or implied obligation to indemnify any
other person. As used herein, "Tax Return" shall mean any return, statement,
report or form (including, without limitation, estimated tax returns and
reports, withholding tax returns and reports and information reports and
returns) required to be filed with respect to Taxes.
2.14 EMPLOYEE BENEFIT PLANS.
(a) Schedule 2.14 of the Ezlogin Disclosure Schedule lists, with respect to
Ezlogin and any trade or business (whether or not incorporated) that is treated
as a single employer with Ezlogin (an "ERISA Affiliate") within the meaning of
Section 414(b), (c), (m) or (o) of the Code, (i) all material employee benefit
plans (as defined in Section 3(3) of the Employee Retirement Income Security Act
of 1974, as amended ("ERISA"), and any equivalent thereof under applicable
French law, (ii) each loan to a non-officer employee in excess of $10,000 (other
than loans made by Ezlogin pursuant to Section 5.9, if applicable), loans to
officers and directors and any stock option, stock purchase, phantom stock,
stock appreciation right, supplemental retirement, severance, sabbatical,
medical, dental, vision care, disability, employee relocation, cafeteria benefit
(Code Section 125 or any equivalent thereof under applicable French law) or
dependent care (Code Section 129 Code or any
13
equivalent thereof under applicable French law), life insurance or accident
insurance plans, programs or arrangements, (iii) all bonus, pension, profit
sharing, savings, deferred compensation or incentive plans, programs or
arrangements, (iv) other fringe or employee benefit plans, programs or
arrangements that apply to senior management of Ezlogin and that do not
generally apply to all employees, and (v) any current or former employment or
executive compensation or severance agreements, written or otherwise, as to
which unsatisfied obligations of Ezlogin of greater than $10,000 remain for the
benefit of, or relating to, any present or former employee, consultant or
director of Ezlogin (together, the "Ezlogin Employee Plans").
(b) Ezlogin has made available to 724 Solutions a copy of each of the
Ezlogin Employee Plans and related plan documents (including trust documents,
insurance policies or contracts, employee booklets, summary plan descriptions
and other authorizing documents, and any written material employee
communications from Ezlogin relating thereto) and has, with respect to each
Ezlogin Employee Plan that is subject to ERISA reporting requirements, made
available copies of the Form 5500 reports filed for the last three plan years
(or if the plan has been in existence for less than three years, for all years
of existence for which Form 5500 is due). Any Ezlogin Employee Plan intended to
be qualified under Section 401(a) of the Code has either obtained from the
Internal Revenue Service a favorable determination letter as to its qualified
status under the Code, including all amendments to the Code effected by the Tax
Reform Act of 1986 and subsequent legislation, or has applied (or has time
remaining in which to apply) to the Internal Revenue Service for such a
determination letter prior to the expiration of the requisite period under
applicable Treasury Regulations or Internal Revenue Service pronouncements in
which to apply for such determination letter and to make any amendments
necessary to obtain a favorable determination or has been established under a
standardized prototype plan for which an Internal Revenue Service opinion letter
has been obtained by the plan sponsor and is valid as to the adopting employer.
Ezlogin has also made available to 724 Solutions the most recent Internal
Revenue Service determination or opinion letter issued with respect to each such
Ezlogin Employee Plan, and nothing has occurred since the issuance of each such
letter that could reasonably be expected to result in the loss of the
tax-qualified status of any Ezlogin Employee Plan subject to Code
Section 401(a). Ezlogin has also made available to 724 Solutions all
registration statements and prospectuses prepared in connection with each
Ezlogin Employee Plan.
(c) (i) None of the Ezlogin Employee Plans promises or provides retiree
medical benefits to any person other than as required under the Consolidated
Omnibus Budget Reconciliation Act of 1985 ("COBRA") or comparable state or
foreign law; (ii) there has been no "prohibited transaction," as such term is
defined in Section 406 of ERISA and Section 4975 of the Code, (other than an
exempt prohibited transaction under Section 408 of ERISA or Section 4975 of the
Code or one for which an administrative class exemption is available) with
respect to any Ezlogin Employee Plan, that could reasonably be expected to have,
in the aggregate, a Material Adverse Effect on Ezlogin; (iii) each Ezlogin
Employee Plan has been administered in accordance with its terms and in
compliance with the requirements prescribed by any and all statutes, rules and
regulations (including ERISA and the Code and any comparable foreign statutes,
rules and regulations), except as would not have, in the aggregate, a Material
Adverse Effect on Ezlogin, and Ezlogin or ERISA Affiliate have performed all
material obligations required to be performed by them under, are not in any
material respect in default under or violation of, and have no Knowledge of any
material default or violation by any other party to, any of the Ezlogin Employee
Plans; (iv) neither Ezlogin nor any ERISA Affiliate is subject to any material
liability or penalty under Sections 4976 through 4980 of the Code or Title I of
ERISA with respect to any of the Ezlogin Employee Plans; (v) all material
contributions required to be made and all insurance premiums required to be paid
by Ezlogin or ERISA Affiliate to any Ezlogin Employee Plan have been made or
paid on or before their due dates and a reasonable amount has been accrued for
contributions to each Ezlogin Employee Plan, in accordance with Ezlogin's
ordinary accounting and business practices, for the current plan years and any
previous plan years as to which all contributions have not yet been made;
(vi) with respect to each Ezlogin Employee Plan, no "reportable event" within
the meaning of Section 4043 of ERISA (excluding any such event for which the
thirty (30) day notice requirement has been waived under the regulations to
Section 4043 of ERISA) nor any event described in Section 4062, 4063 or 4041 or
ERISA has occurred; (vii) no Ezlogin Employee Plan is covered by, and neither
Ezlogin nor any ERISA Affiliate has incurred or expects to incur any liability
under Title IV of ERISA or Section 412 of the Code; and (viii) each Ezlogin
Employee Plan can be amended, terminated or otherwise discontinued after the
Effective Time in accordance with its terms, without liability to 724 Solutions
(other than ordinary administrative expenses typically incurred in a termination
event).
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With respect to each Ezlogin Employee Plan subject to ERISA as either an
employee pension plan within the meaning of Section 3(2) of ERISA or an employee
welfare benefit plan within the meaning of Section 3(1) of ERISA, Ezlogin has
prepared in good faith and timely filed all requisite governmental reports,
including any such reports required to be filed in connection with any
applicable foreign laws (which were true and correct as of the date filed) and
has properly and timely filed and distributed or posted all notices and reports
to employees required to be filed, distributed or posted with respect to each
such Ezlogin Employee Plan except to the extent that such failure to comply
would not, in the aggregate, have a Material Adverse Effect on Ezlogin. No suit,
administrative proceeding, action or other litigation has been brought, or to
the best Knowledge of Ezlogin is threatened, against or with respect to any such
Ezlogin Employee Plan, including any audit or other material written or oral
inquiry by the IRS or United States Department of Labor, or an audit or other
material written or oral inquiry by any applicable foreign authority. No payment
or benefit that will or may be made by Ezlogin to any Employee will be
characterized as an "excess parachute payment" within the meaning of
Section 280G(b)(1) of the Code.
(d) With respect to each Ezlogin Employee Plan, Ezlogin has complied with
(i) the applicable health care continuation and notice provisions of COBRA and
the regulations (including proposed regulations) thereunder except to the extent
that such failure to comply would not, in the aggregate, have a Material Adverse
Effect on Ezlogin, (ii) the applicable requirements of the Family Medical and
Leave Act of 1993 and the regulations thereunder, except to the extent that such
failure to comply would not, in the aggregate, have a Material Adverse Effect on
Ezlogin, and (iii) the applicable requirements of the Health Insurance
Portability and Accountability Act of 1996 and the regulations (including
proposed regulations) thereunder, except to the extent that such failure to
comply would not, in the aggregate, have a Material Adverse Effect on Ezlogin,
and (iv) in each instance above, any comparable foreign laws which are
applicable to the Ezlogin Employee Plans.
(e) There has been no amendment to, written interpretation or announcement
(whether or not written) by Ezlogin, any ERISA Affiliate relating to, or change
in participation or coverage under, any Ezlogin Employee Plan that would
materially increase the expense of maintaining such Plan above the level of
expense incurred with respect to that Plan for the most recent fiscal year
included in Ezlogin's financial statements.
(f) Ezlogin does not currently maintain, sponsor, participate in or
contribute to, nor has it ever maintained, established, sponsored, participated
in, or contributed to, any pension plan (within the meaning of Section 3(2) of
ERISA) that is subject to Part 3 of Subtitle B of Title I of ERISA, Title IV of
ERISA or Section 412 of the Code.
(g) Neither Ezlogin nor any ERISA Affiliate is a party to, or has made any
contribution to or otherwise incurred any obligation under, any "multiemployer
plan" as defined in Section 3(37) of ERISA.
(h) Neither Ezlogin nor any ERISA Affiliate has any liability or is
threatened with any liability (whether joint or several) (i) for any excise tax
imposed by Sections 4971, 4975, 4976, 4977 or 4979 of the Code, or (ii) to a
fine under Section 502 of ERISA.
(i) Ezlogin has duly fulfilled on a timely basis all its affiliation,
payment and reporting obligations under applicable French social security laws
and regulations, and under any voluntary French complementary health,
unemployment or retirement insurance plans (copies of which have been made
available to 724 Solutions) which Ezlogin has subscribed for the benefit of its
employees.
2.15 CERTAIN AGREEMENTS AFFECTED BY THE MERGER. Except as otherwise
contemplated by this Agreement or as otherwise set forth on Schedule 2.15,
neither the execution and delivery of this Agreement nor the consummation of the
transactions contemplated hereby will (i) result in any payment (including,
without limitation, severance, unemployment compensation, golden parachute,
bonus or otherwise) becoming due to any director, officer, agent or employee of
Ezlogin or any other third party, (ii) materially increase any benefits
otherwise payable by Ezlogin, or (iii) result in the acceleration of the time of
payment or vesting of any such benefits except as required under Code
Section 411(d)(3).
2.16 EMPLOYEE MATTERS. Ezlogin is in compliance in all material respects
with all currently applicable laws and regulations respecting employment,
discrimination in employment, terms and conditions of employment, wages, hours
and occupational safety and health and employment practices, and is not engaged
in any unfair
15
labor practice. Ezlogin has withheld all amounts required by law or by agreement
to be withheld from the wages, salaries, and other payments to employees; and is
not liable for any arrears of wages or any taxes or any penalty for failure to
comply with any of the foregoing. Ezlogin is not liable for any payment to any
trust or other fund or to any governmental or administrative authority, with
respect to unemployment compensation benefits, social security or other benefits
or obligations for employees (other than routine payments to be made in the
normal course of business and consistent with past practice). There are no
pending claims against Ezlogin under any workers compensation plan or policy or
for long term disability. There are no controversies pending or, to the
Knowledge of Ezlogin, threatened, between Ezlogin and any of its employees,
which controversies have or could reasonably be expected to result in an action,
suit, proceeding, claim, arbitration or investigation before any agency, court
or tribunal, foreign or domestic. Ezlogin is not a party to any collective
bargaining agreement or other labor unions contract nor does Ezlogin know of any
activities or proceedings of any labor union or organize any such employees. To
Ezlogin's Knowledge, no employees of Ezlogin are in violation of any term of any
employment contract, patent disclosure agreement, enforceable noncompetition or
nonsolicitation agreement, or any enforceable restrictive covenant to a former
employer relating to the right of any such employee to be employed by Ezlogin
because of the nature of the business conducted or presently proposed to be
conducted by Ezlogin or to the use of trade secrets or proprietary information
of others. As of the date of the Original Merger Agreement, no employees of
Ezlogin have given notice to Ezlogin, nor is Ezlogin otherwise aware, that any
such employee intends to terminate his or her employment with Ezlogin. To the
Knowledge of Ezlogin, except as disclosed on Schedule 2.16, all employees of
Ezlogin, to the extent applicable, have duly issued and valid visas permitting
such employees to fully render such services and perform such duties and
obligations as presently, or presently contemplated to be, rendered or performed
by such employee for Ezlogin and such visas will be in full force and effect as
of the Effective Time and will not be adversely affected by the Merger or the
transactions contemplated by this Agreement.
2.17 INTERESTED PARTY TRANSACTIONS. Ezlogin is not indebted to any of its
directors, officers, employees or agents (except for amounts due as normal
salaries and bonuses and in reimbursement of ordinary expenses), and no such
person is indebted to either Ezlogin, except, if applicable, for loans by
Ezlogin to employees, consultants or directors to exercise Ezlogin Options in
connection with this Agreement, pursuant to Section 5.9.
2.18 INSURANCE. Ezlogin has policies of insurance and bonds of the type and
in amounts customarily carried by persons conducting businesses or owning assets
similar to those of Ezlogin at a comparable stage of development. There is no
material claim pending under any of such policies or bonds as to which coverage
has been questioned, denied or disputed by the underwriters of such policies or
bonds. All premiums due and payable under all such policies and bonds have been
paid and Ezlogin is otherwise in compliance with the terms of such policies and
bonds. Ezlogin has no Knowledge of any threatened termination of, or material
premium increase with respect to, any of such policies.
2.19 COMPLIANCE WITH LAWS. Ezlogin has complied with, is not in violation
of, and has not received any notices of violation with respect to, any federal,
state, local or foreign statute, law or regulation with respect to the conduct
of its business, or the ownership or operation of its business, except for such
violations or failures to comply as could not be reasonably expected to have a
Material Adverse Effect on Ezlogin.
2.20 MINUTE BOOKS. All minute books of Ezlogin have been made available to
724 Solutions and the minute books contain a complete and accurate summary of
all meetings of its directors and shareholders or actions by written consent
since the time of incorporation of Ezlogin through the date of the Original
Merger Agreement, and reflect all transactions referred to in such minutes
accurately in all material respects. There are no material actions taken by
Ezlogin or its board of directors or shareholders that are not summarized or
described in the minutes of Ezlogin provided to 724 Solutions.
2.21 COMPLETE COPIES OF MATERIALS. Ezlogin has delivered true and complete
copies of each document that has been requested by 724 Solutions or its counsel
in writing in connection with their legal and accounting review of Ezlogin and
has delivered all materials and documents that could reasonably be deemed to be
necessary or appropriate to the due diligence conducted by 724 Solutions
(whether or not requested by 724 Solutions) in connection with the Merger.
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2.22 BROKERS' AND FINDERS' FEES. Ezlogin has not incurred, nor will it
incur, directly or indirectly, any liability for brokerage or finders' fees or
agents' commissions or investment bankers' fees or any similar charges in
connection with this Agreement or any transaction contemplated hereby.
2.23 VOTING AGREEMENTS; IRREVOCABLE PROXIES. All of the persons and/or
entities deemed "Affiliates" of Ezlogin within the meaning of Rule 145
promulgated under the Securities Act, Intuit, Inc. and certain Shareholders of
Ezlogin who collectively hold more than (i) 50% of each class or series of
outstanding Ezlogin Capital Stock, and (ii) 50% of the Ezlogin Capital Stock
voting together as a single class, have agreed in writing, among other things,
to vote for approval of the Merger pursuant to a Voting Agreement attached
hereto as Exhibit B ("Voting Agreement"), and pursuant to Irrevocable Proxies
attached thereto as Exhibit A ("Irrevocable Proxies").
2.24 VOTE REQUIRED. The affirmative vote of the holders of at least 50% of
each class or series of Ezlogin Capital Stock outstanding on the record date set
for the Ezlogin Shareholders Meeting and at least 50% of the Ezlogin Capital
Stock voting together as a single class is the only vote or other approval of
the holders of any of Ezlogin's Capital Stock necessary to approve this
Agreement and the transactions contemplated thereby and hereby.
2.25 INVENTORY. Ezlogin has no assets which are required to be classified
as "inventory" on a balance sheet prepared in accordance with U.S. GAAP.
2.26 ACCOUNTS RECEIVABLE. Ezlogin has no assets which are required to be
classified as "accounts receivable" on a balance sheet prepared in accordance
with U.S. GAAP.
2.27 BOARD APPROVAL. The Board of Directors of Ezlogin has (i) approved
this Agreement and the Merger, (ii) determined that the Merger is in the best
interests of the Shareholders of Ezlogin and is on terms that are fair to such
Shareholders and (iii) recommended that the Shareholders of Ezlogin approve this
Agreement and the Merger.
2.28 CUSTOMERS AND SUPPLIERS. No customer that individually accounted for
more than 5% of Ezlogin's gross revenues during the period covered by the
Financial Statements, and no material supplier of Ezlogin has canceled or
otherwise terminated, or made any written threat to Ezlogin to cancel or
otherwise terminate, its relationship with Ezlogin, or has decreased materially
its services or supplies to Ezlogin in the case of any such supplier, or its
usage of the services or products of Ezlogin in the case of such customer,
except at the decision of Ezlogin, and no such supplier or customer has
otherwise notified Ezlogin that it intends to cancel or otherwise terminate its
relationship with Ezlogin or to decrease materially its services or supplies to
Ezlogin or its usage of the services or products of Ezlogin, as the case may be.
2.29 MATERIAL CONTRACTS. Except for the contracts and agreements described
in Schedule 2.29 (collectively, the "Material Contracts"), Ezlogin is not a
party to or bound by any material contract, including without limitation:
(a) any distributor, sales, agency or manufacturer's representative
contract;
(b) any continuing contract for the purchase of materials, supplies,
equipment or services involving in the case of any such contact more than
$50,000 over the life of the contract;
(c) any contract that expires, or may be renewed at the option of any
person other than Ezlogin, as the case may be, so as to expire more than one
year after the date of the Original Merger Agreement;
(d) any trust indenture, mortgage, promissory note, loan agreement or
other contract for the borrowing of money, any currency exchange,
commodities or other hedging arrangement or any leasing transaction of the
type required to be capitalized in accordance with generally accepted
accounting principles;
(e) any contract for capital expenditures in excess of $50,000 in the
aggregate;
(f) any contract limiting the freedom of Ezlogin to engage in any line
of business or to compete with any other Person as that term is defined in
the Exchange Act, as defined herein;
17
(g) any confidentiality, secrecy or non-disclosure contract, which
individually or in the aggregate, materially affect or could be reasonably
anticipated to materially affect the business or operations of Ezlogin;
(h) any contract pursuant to which Ezlogin is a lessor of any machinery,
equipment, motor vehicles, office furniture, fixtures or other personal
property involving in the case of any such contact more than $50,000 over
the life of the contract;
(i) any contract with any person with whom Ezlogin does not deal at
arm's length; or
(j) any agreement of guarantee, support, indemnification, assumption or
endorsement of, or any similar commitment with respect to, the obligations,
liabilities (whether accrued, absolute, contingent or otherwise) or
indebtedness of any other Person.
2.30 NO BREACH OF MATERIAL CONTRACTS. All Material Contracts are in written
form. Ezlogin has performed all of the obligations required to be performed by
it and is entitled to all benefits under, and is not alleged to be in default in
respect of any Material Contract. Each of the Material Contracts is in full
force and effect, in all material respects, and, except as disclosed on
Schedule 2.29, unamended, and there exists no default or event of default or
event, occurrence, condition or act, with respect to Ezlogin or to Ezlogin's
Knowledge with respect to the other contracting party, which, with the giving of
notice, the lapse of the time or the happening of any other event or conditions,
would become a default or event of default under any Material Contract. True,
correct and complete copies of all Material Contracts have been delivered to
724 Solutions.
2.31 MATERIAL THIRD PARTY CONSENTS. Schedule 2.31 lists all contracts that
require a novation, or consent to the Merger or change of control, as the case
may be, prior to the Effective Time so that such contracts may remain in full
force and effect after the Closing and sets forth every contract requiring
novation or consent to change of control that, if no novation occurs or if no
consent to the Merger or change of control is obtained, would have a Material
Adverse Effect on 724 Solutions' ability to operate the business in the same
manner as the business was operated by Ezlogin prior to the Effective Time.
2.32 REAL PROPERTY.
(a) Ezlogin has never owned any real property.
(b) Schedule 2.32(b) sets forth a list of all leases, licenses or similar
agreements to which Ezlogin is a party, that are for the use or occupancy of
real estate owned by a third party ("Leases") (copies of which have previously
been furnished to 724 Solutions), in each case, setting forth: (i) the lessor
and lessee thereof and the commencement date, term and renewal rights under each
of the Leases, and (ii) the street address or legal description of each property
covered thereby (the "Leased Premises"). The Leases are in full force and effect
in all material respects and have not been amended except as disclosed in
Schedule 2.32(b), and no party thereto is in default or breach under any such
Lease. No event has occurred that, with the passage of time or the giving of
notice or both, would cause a breach of or default under any of such Leases.
Ezlogin has valid leasehold interests in each of the Leased Premises, which
leasehold interest is free and clear of any liens, covenants and easements or
title defects of any nature whatsoever other than Permitted Liens.
(c) With respect to the Leased Premises, (i) there are no pending or, to the
Knowledge of Ezlogin, threatened condemnation proceedings, suits or
administrative actions relating to any such parcel or other matters affecting
adversely the current use, occupancy or value thereof, (ii) all improvements,
buildings and systems on any such parcel are in good repair and safe for their
current occupancy and use, (iii) there are no contracts or agreements (whether
oral or written) granting to any party or parties the right of use or occupancy
of any such parcel, and there are no parties (other than Ezlogin) in possession
of any such parcel; (iv) there are no outstanding options or rights of first
refusal or similar rights to purchase any such parcel or any portion thereof or
interest therein, (v) all facilities located on each such parcel are supplied
with utilities and other services necessary for their ownership, operation or
use, currently or as currently proposed by Ezlogin, all of which services are
adequate in accordance with all applicable laws, ordinances, rules and
regulations, and (vi) each such parcel abuts on and has adequate direct
vehicular access to a public road and there is no pending or, to the Knowledge
of Ezlogin, threatened termination of such access.
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2.33 PRODUCT RELEASES. Ezlogin has provided 724 Solutions a Schedule of
Product Releases of Ezlogin, which Schedule is attached hereto as
Schedule 2.33. Ezlogin has a good faith reasonable belief that it can achieve
the release of products on the schedule described in Schedule 2.33 and is not
currently aware of any change in its circumstances or other fact that has
occurred that would cause it to believe that it will be unable to meet such
release schedule.
2.34 YEAR 2000. None of the products and services sold, licensed, rendered,
or otherwise provided by Ezlogin in the conduct of its businesses have
malfunctioned, ceased to function, generated materially incorrect data or
produced materially incorrect results (nor has Ezlogin received any notice or
other communication regarding such a malfunction) when processing, providing or
receiving (i) date-related data from, into and between the Twentieth (20th) and
Twenty-First (21st) centuries, or (ii) date-related data in connection with any
valid date in the Twentieth (20th) and Twenty-First (21st) centuries causing a
Material Adverse Effect on Ezlogin.
2.35 HEARING DOCUMENTS; RULE 506 DOCUMENTS. The information relating to
Ezlogin included in the Hearing Documents and the Rule 506 Documents, if
applicable, shall not, at the time the Hearing Documents, and the Rule 506
Documents, if applicable, are mailed to Shareholders of Ezlogin and at all times
subsequent thereto (through and including the Effective Date), 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 therein, in
light of the circumstances under which they were made, not misleading.
2.36 WAIVER OF RIGHT OF FIRST REFUSAL. Intuit, Inc. has executed and
delivered an enforceable waiver of its right of first refusal pursuant to
Section 5 of the Amended and Restated Rights Agreement, dated October 8, 1999,
and a copy of such waiver has been delivered to 724 Solutions.
2.37 ASSETS AND REVENUES. Ezlogin is its own "ultimate parent entity" as
such term is defined in 16 C.F.R. Section 801.1(a)(3). Ezlogin, on a
consolidated basis, does not (i) have assets having an aggregate book value of
$10 million or more based on its most recent regularly prepared balance sheet or
(ii) sales of $10 million or more in its most recent fiscal year.
2.38 EZLOGIN TRANSACTION EXPENSES. Ezlogin's legal, accounting and
investment banking fees and expenses, and all other fees and expenses incurred
in connection with the Merger ("Ezlogin Transaction Expenses"), shall not exceed
$400,000. If the Ezlogin Transaction Expenses are in excess of $400,000, such
excess shall be considered a 724 Solutions Damage that is not subject to the
Indemnification Threshold or Indemnification Cap pursuant to Section 8.2.
2.39 REPRESENTATIONS COMPLETE. None of the representations or warranties
made by Ezlogin herein or in any Schedule hereto, including the Ezlogin
Disclosure Schedule, or certificate furnished by Ezlogin pursuant to this
Agreement, when all such documents are read together in their entirety, contains
or will contain at the Effective Time any untrue statement of a material fact,
or omits or will omit at the Effective Time to state any material fact necessary
in order to make the statements contained herein or therein, in the light of the
circumstances under which made, not misleading.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF 724 SOLUTIONS AND MERGER SUB
724 Solutions and Merger Sub represent and warrant to Ezlogin as follows:
3.1 ORGANIZATION, STANDING AND POWER. 724 Solutions and Merger Sub are
corporations duly organized, validly existing and in good standing under the
laws of their respective jurisdictions of organization. 724 Solutions and Merger
Sub have the corporate power to own their respective properties and to carry on
their respective businesses as now being conducted and as proposed to be
conducted and are duly qualified to do business and are in good standing in each
jurisdiction in which the failure to be so qualified and in good standing would
have a Material Adverse Effect on 724 Solutions or Merger Sub. Neither
724 Solutions nor Merger Sub is in violation of any of the provisions of their
respective Articles of Incorporation, Articles of Amalgamation, Bylaws or
equivalent organizational documents.
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3.2 CAPITAL STRUCTURE.
(a) The authorized capital stock of 724 Solutions consists of an unlimited
number of Common Shares and an unlimited number of Preferred Shares, of which
there were issued and outstanding as of the close of business on March 20, 2000,
36,487,758 Common Shares and no Preferred Shares. The shares of 724 Solutions
Common Stock to be issued pursuant to the Merger will be duly authorized,
validly issued, fully paid, and non-assessable.
(b) 724 Solutions has reserved (i) 3,200,000 Common Shares for issuance to
employees, consultants and directors, pursuant to the Stock Option Plan Dated
September 1997 for Canadian Employees and the US 1999 Stock Incentive Plan, of
which, as of March 20, 2000, 185,332 shares have been issued pursuant to option
exercises or direct stock purchases, 2,998,270 shares are subject to
outstanding, unexercised options, and no shares are available for future grant
thereunder due to certain undertakings with The Toronto Stock Exchange;
(ii) 2,000,000 Common Shares for issuance to employees, consultants and
directors, pursuant to the 2000 Stock Option Plan, of which, as of March 27,
2000, no shares have been issued pursuant to option exercises or direct stock
purchases, 155,450 shares are subject to outstanding, unexercised options, and
1,844,550 shares are available for future grant thereunder.
3.3 AUTHORITY.
(a) Both 724 Solutions and Merger Sub have all requisite corporate power and
authority to enter into this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized
by all necessary corporate action on the part of 724 Solutions and Merger Sub,
subject to the proviso to Section 3.9. This Agreement has been duly executed and
delivered by 724 Solutions and Merger Sub and constitutes the valid and binding
obligations of 724 Solutions and Merger Sub enforceable against 724 Solutions
and Merger Sub in accordance with its terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium and other similar laws and
equitable principles relating to or limiting creditors' rights generally and by
general principles of equity.
(b) The execution and delivery of this Agreement do not, and the
consummation of the transactions contemplated hereby will not, conflict with, or
result in any violation of, or default under (with or without notice or lapse of
time, or both), or give rise to a right of termination, cancellation or
acceleration of any obligation or loss of a benefit under (i) any provision of
the Articles of Incorporation, Articles of Amalgamation, Bylaws or other
organizational documents of 724 Solutions or Merger Sub, as amended, or
(ii) any material mortgage, indenture, lease, contract or other agreement or
instrument, permit, concession, franchise, license, judgment, order, decree,
statute, law, ordinance, rule or regulation applicable to 724 Solutions or
Merger Sub or their properties or assets. No consent, approval, order or
authorization of, or registration, declaration or filing with, any Governmental
Entity, is required by or with respect to 724 Solutions or Merger Sub in
connection with the execution and delivery of this Agreement by 724 Solutions
and Merger Sub or the consummation by 724 Solutions and Merger Sub of the
transactions contemplated hereby, except for (i) the filing of the Agreement of
Merger, together with the required officers' certificates, as provided in
Section 1.2 and any other merger documents required to be filed by the law of
the jurisdiction of incorporation of any Replacement Merger Sub, if applicable,
(ii) any filings as may be required under applicable state, provincial, federal,
local or foreign securities laws and other consents, authorizations, filings,
approvals and registrations as may be required by NASDAQ or The Toronto Stock
Exchange or other applicable stock exchanges, (iii) the filing by 724 Solutions
of an application for qualification by permit with the State of California
pursuant to Section 25121 of California Law, and (iv) such other consents,
authorizations, filings, approvals and registrations that, if not obtained or
made, would not have a Material Adverse Effect on 724 Solutions or Merger Sub
and would not prevent, materially alter or delay any of the transactions
contemplated by this Agreement.
3.4 SEC DOCUMENTS; FINANCIAL STATEMENTS.
(a) 724 Solutions has made available to Ezlogin the final registration
statement (with the prospectus in the form filed pursuant to Rule 424(b) of the
Securities Act) on Form F-1 and the final Prospectus, dated January 27, 2000,
filed with each of the Canada Securities Administrators, used for the initial
public offering of 724 Solutions securities (the "IPO"), and other filings filed
with the SEC by 724 Solutions since the effective date of the F-1 (collectively,
the "724 Solutions SEC Documents") and prior to March 30, 2000. In addition,
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724 Solutions will promptly make available to Ezlogin all additional
724 Solutions SEC Documents filed after March 30, 2000 and prior to the
Effective Time. As of their respective filing dates, the 724 Solutions SEC
Documents, in each case, as subsequently amended (i) complied in all material
respects with the requirements of the Securities Exchange Act of 1934, as
amended (the "Exchange Act") and the Securities Act or the Ontario Securities
Act, as applicable, and (ii) did not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
in order to make the statements therein, in light of the circumstances under
which they were made, not misleading. None of 724 Solutions' subsidiaries is
required to file any reports or other documents with the SEC.
(b) The financial statements of 724 Solutions, including the notes thereto,
included in the 724 Solutions SEC Documents (the "724 Solutions Financial
Statements"), in each case, as subsequently amended, were complete and correct
in all material respects as of their respective dates, complied as to form in
all material respects with applicable accounting requirements and with the
published rules and regulations of the SEC with respect thereto as of their
respective dates, and were prepared in accordance with Canadian GAAP and
reconciled into U.S. GAAP, applied on a basis consistent throughout the periods
indicated and consistent with each other (except as may be indicated in the
notes thereto or, in the case of unaudited statements included in Quarterly
Reports on Form 6K, as permitted by Form 6K of the SEC). The 724 Solutions
Financial Statements fairly present the consolidated financial condition and
operating results of 724 Solutions as of the dates and for the periods indicated
therein (subject, in the case of unaudited statements, to normal, recurring
year-end adjustments; and provided that such quarterly statements should be read
in conjunction with the notes and disclosures in the audited annual statements).
3.5 ABSENCE OF CERTAIN CHANGES. Since January 27, 2000 (the "724 Solutions
Balance Sheet Date"), 724 Solutions has conducted its business as described and
proposed to be conducted in the 724 Solutions SEC Documents and there has not
occurred: (i) any change in accounting methods or practices (including any
change in depreciation or amortization policies or rates) by 724 Solutions or
any revaluation by 724 Solutions of any of its assets; (ii) any declaration,
setting aside, or payment of a dividend or other distribution with respect to
the shares of 724 Solutions, or any direct or indirect redemption, purchase or
other acquisition by 724 Solutions of any of its shares of capital stock, other
than repurchases of stock as a result of termination of employees; (iii) any
agreement by 724 Solutions to do any of the things described in the preceding
clauses (i) through (ii).
3.6 ABSENCE OF UNDISCLOSED LIABILITIES. 724 Solutions has no material
obligations or liabilities of any nature (matured or unmatured, fixed or
contingent) other than (i) those set forth or adequately provided for in the
Balance Sheet included in the Financial Statements contained in the latest
724 Solutions SEC Document (the "724 Solutions Balance Sheet"), (ii) those
incurred in the ordinary course of 724 Solutions' business as is described in
and proposed to be conducted in the 724 Solutions SEC Documents since the
724 Solutions Balance Sheet Date; (iii) those incurred in connection with the
execution and performance of this Agreement and the Original Merger Agreement;
and (iv) those incurred in the ordinary course of 724 Solutions' business as is
described in and proposed to be conducted in the 724 Solutions SEC Documents
since the 724 Balance Sheet Date, that, in accordance with GAAP, were not
required to be recorded thereon, and that, in the aggregate, are not material.
3.7 LITIGATION. Except as set forth in the 724 Solutions SEC Documents,
there is no private or governmental action, suit, proceeding, claim, arbitration
or investigation pending before any agency, court or tribunal, foreign or
domestic, or, to 724 Solutions' Knowledge, threatened, against 724 Solutions or
any of its properties or officers or directors (in their capacities as such).
There is no judgment, decree or order against 724 Solutions or any of its
directors or officers (in their capacities as such), that could prevent, enjoin,
or materially alter or delay any of the transactions contemplated by this
Agreement, or that could reasonably be expected to have a Material Adverse
Effect on 724 Solutions.
3.8 BROKER'S AND FINDERS' FEES. Except for such fees due Credit Suisse
First Boston Corporation, 724 Solutions has not incurred, nor will it incur,
directly or indirectly, any liability for brokerage or finders' fees or agents'
commissions or investment bankers' fees or any similar charges in connection
with this Agreement or any transaction contemplated hereby.
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3.9 BOARD APPROVAL; NO SHAREHOLDER APPROVAL REQUIRED. The Board of
Directors of 724 Solutions has approved this Agreement and the Merger. The
shareholders of 724 Solutions are not required to approve this Agreement and the
Merger, provided that 724 Solutions makes no representation as to any
724 Solutions shareholder approval that may be required by Nasdaq in connection
with the assumption of the Ezlogin Stock Option Plan and Ezlogin Options as
provided in Section 1.6(c), except to the extent the Nasdaq Confirmation has
been received.
3.10 INTERIM OPERATIONS OF MERGER SUB. Merger Sub was formed solely for the
purpose of engaging in the transactions contemplated hereby, has engaged in no
other business activities and has conducted its operations only as contemplated
hereby. For the purposes of this Section 3.10, Merger Sub shall not be deemed to
include any Replacement Merger Sub.
3.11 HEARING DOCUMENTS; RULE 506 DOCUMENTS. The information relating to
724 Solutions included in the Hearing Documents, and the Rule 506 Documents, if
applicable, shall not, at the time the Hearing Documents, and the Rule 506
Documents, if applicable, are mailed to Shareholders of Ezlogin and at all times
subsequent thereto (through and including the Effective Date), 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 therein, in
light of the circumstances under which they were made, not misleading.
3.12 REPRESENTATIONS COMPLETE. None of the representations or warranties
made by 724 Solutions or Merger Sub herein or in any Schedule hereto, or
certificate furnished by 724 Solutions pursuant to this Agreement, when all such
documents are read together in their entirety, contains or will contain at the
Effective Time any untrue statement of a material fact, or omits or will omit at
the Effective Time to state any material fact necessary in order to make the
statements contained herein or therein, in the light of the circumstances under
which made, not misleading.
ARTICLE IV
CONDUCT PRIOR TO THE EFFECTIVE TIME
4.1 CONDUCT OF BUSINESS OF EZLOGIN. During the period from the date of the
Original Merger Agreement and continuing until the earlier of the termination of
this Agreement or the Effective Time, Ezlogin agrees, and shall cause its
Shareholders, officers and directors (except to the extent expressly
contemplated by this Agreement or as consented to in writing by 724 Solutions),
to carry on Ezlogin's business in the usual, regular and ordinary course in
substantially the same manner as heretofore conducted. Ezlogin further agrees to
pay all debts and Taxes when due (subject (i) to good faith disputes over such
debts or Taxes, and (ii) to 724 Solutions' consent to the filing of material Tax
Returns (which consent shall not be unreasonably withheld or delayed)), pay or
perform all other obligations when due, and use all reasonable efforts
consistent with past practice and policies to preserve intact its present
business organizations, keep available the services of its present officers and
key employees and preserve its relationships with customers, suppliers,
distributors, licensors, licensees, and others having business dealings with it,
to the end that its goodwill and ongoing businesses shall be unimpaired at the
Effective Time. Ezlogin agrees to promptly notify 724 Solutions of any event,
fact or circumstance that could reasonably be expected to have a Material
Adverse Effect on Ezlogin.
4.2 RESTRICTION ON CONDUCT OF BUSINESS OF EZLOGIN. During the period from
the date of the Original Merger Agreement and continuing until the earlier of
the termination of this Agreement or the Effective Time, except as set forth in
the Ezlogin Disclosure Schedule and except as expressly contemplated by the
Original Merger Agreement, Ezlogin shall not do, cause or permit any of the
following, without the prior written consent of 724 Solutions:
(a) CHARTER DOCUMENTS. Cause or permit any amendments to its Articles
of Incorporation or Bylaws;
(b) DIVIDENDS; CHANGES IN CAPITAL STOCK. Declare or pay any dividends
on or make any other distributions (whether in cash, stock or property) in
respect of any of its capital stock, or split, combine or reclassify any of
its capital stock or issue or authorize the issuance of any other securities
in respect of, in lieu of or in substitution for shares of its capital
stock, or repurchase or otherwise acquire, directly or indirectly, any
shares of its capital stock, other than repurchases of stock as a result of
termination of
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employment in accordance with the Ezlogin Stock Option Plan. Without
limiting the generality of the foregoing, no distributions or dividends
shall be paid from any proceeds received as a result of the exercise of
Ezlogin Options.
(c) STOCK OPTIONS, ETC. Accelerate, amend or change the period of
exercisability or vesting of Ezlogin Options or other rights granted under
its stock plans, except as specifically contemplated hereby, or authorize
cash payments in exchange for any options or other rights granted under any
of such plans;
(d) MATERIAL CONTRACTS. Enter into any contract or commitment which
would be required to be listed on Schedule 2.29 hereof as a Material
Contract, or violate, amend or otherwise modify or waive any of the terms of
any of its Material Contracts; provided however, that Ezlogin shall not
enter into any agreement or commitment for the purchase of products or
supplies in an amount in excess of $25,000 in any one case or $75,000 in the
aggregate; and, provided, further, that Ezlogin shall not enter into any
contract, commitment or agreement (i) which grants any third party exclusive
rights, (ii) which provides any third party with equity, as compensation or
otherwise, or (iii) with any third party which could reasonably be deemed to
be a competitor of 724 Solutions.
(e) ISSUANCE OF SECURITIES. Issue, deliver or sell, or authorize the
issuance, delivery or sale, of any shares of its capital stock or securities
convertible into or exchangeable for, or subscriptions, rights, warrants or
options to acquire, or other agreements or commitments of any character
obligating it to issue any such shares or other convertible securities,
other than (i) the issuance of shares of Ezlogin Common Stock pursuant to
the exercise or conversion of Ezlogin Options outstanding as of the date of
the Original Merger Agreement or thereinafter granted pursuant to
clause (v), (ii) the issuance of shares of Ezlogin Common Stock pursuant to
other stock options, warrants or other rights therefor outstanding as of the
date of the Original Merger Agreement, (iii) the issuance of no more than
100,000 Ezlogin Options, in the aggregate, each with an exercise price per
share of the greater of (1) fair market value at the time of the grant or
(2) $2.30 or (3) the product of the closing price of 724 Solutions' Common
Stock on the Nasdaq National Market on the first trading day prior to the
date of the grant times the Exchange Ratio (based on the capitalization of
Ezlogin on the first trading day prior to the date of grant) times eighty
percent (80%), if the resulting exercise price is greater than $2.53, to not
more than 5 new non-executive level employee hires, and with each option
being subject to Ezlogin's typical vesting schedule consistent with prior
practices ("Original Ezlogin Options"); (iv) after, and only after, the
issuance of all Original Ezlogin Options pursuant to (iii) above, the
issuance of additional Ezlogin Options to additional new hires ("Additional
Ezlogin Options"), or the agreement to issue, after the Closing, options
under the 2000 Stock Option Plan, or another plan maintained by
724 Solutions, in each instance, subject to the prior written consent of
724 Solutions, which consent may be withheld in its sole and absolute
discretion, and (iv) the issuance of shares of Ezlogin Common Stock upon the
conversion of Preferred Stock outstanding on the date of the Original Merger
Agreement.
(f) INTELLECTUAL PROPERTY. Transfer to any person or entity any rights
to its Intellectual Property, except (i) for non-exclusive, no royalty,
end-user licenses granted to third parties through Ezlogin's website, in the
ordinary course of business consistent with past practices, provided that
the number of end-users who download or access such Intellectual Property
from Ezlogin's website may vary from time to time, and (ii) subject to
Section 4.2(d) above, that Ezlogin may negotiate and pursue those agreements
under negotiation by Ezlogin as of the date of the Original Merger Agreement
and listed on Schedule 2.11 hereof; provided, further, that Ezlogin may not
enter into any of these agreements without the prior written consent of
724 Solutions, which will not be unreasonably withheld.
(g) EXCLUSIVE RIGHTS. Enter into or amend any agreements pursuant to
which any other party is granted exclusive marketing or other exclusive
rights of any type or scope with respect to any of its products or
technology;
(h) DISPOSITIONS. Sell, lease, license or otherwise dispose of or
encumber any of its properties or assets that are material, individually or
in the aggregate, to its business, taken as a whole, except for sales,
leases or licenses of products in the ordinary course;
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(i) INDEBTEDNESS. Incur any indebtedness for borrowed money under
existing credit lines or otherwise, except as reasonably necessary for the
operation of its business in a manner, and in amounts, consistent with past
practices, or guarantee any such indebtedness or issue or sell any debt
securities or guarantee any debt securities of others;
(j) LEASES. Enter into any operating lease;
(k) PAYMENT OF OBLIGATIONS. Pay, discharge or satisfy, in an amount in
excess of $10,000 in any one case or $25,000 in the aggregate, any claim,
liability or obligation (absolute, accrued, asserted or unasserted,
contingent or otherwise), other than the payment, discharge or satisfaction,
in the ordinary course of business, of liabilities reflected or reserved
against in the Ezlogin Financial Statements or arising after the date of
such statements in the ordinary course of business;
(l) CAPITAL EXPENDITURES. Make any capital expenditures, capital
additions or capital improvements, except in the ordinary course of business
and consistent with past practice;
(m) INSURANCE. Materially reduce the amount of any insurance coverage
provided by existing insurance policies;
(n) TERMINATION OR WAIVER. Terminate or waive any right of substantial
value;
(o) EMPLOYEE BENEFIT PLANS; NEW HIRES; PAY INCREASES. Except as
specifically contemplated herein, adopt, terminate or amend any employee
benefit or stock purchase or option plan (including the Ezlogin Stock Option
Plan), except as required under ERISA or except as necessary to maintain the
qualified status of such plan under the Code, or hire any new executive
level employee, or, other than in the ordinary course of business consistent
with past practices for non-executive level employees, increase the annual
level of compensation of any employee, or grant any unusual or extraordinary
bonuses, benefits or other forms of direct or indirect compensation to any
employee, officer, director or consultant, other than such increases in
compensation or bonuses listed on Schedule 4.2(o);
(p) SEVERANCE ARRANGEMENTS. Grant any severance or termination pay
(i) to any director or officer or (ii) to any other employee, except
payments made pursuant to written agreements outstanding on March 30, 2000;
(q) LAWSUITS. Commence a lawsuit other than (i) for the routine
collection of bills, (ii) in such cases where it in good faith determines
that failure to commence suit would result in the material impairment of a
valuable aspect of its business, provided that it consults with
724 Solutions prior to the filing of such a suit, or (iii) for a breach of
this Agreement;
(r) ACQUISITIONS. Acquire or agree to acquire by merging or
consolidating with, or by purchasing a substantial portion of the assets of,
or by any other manner, any business or any corporation, partnership,
association or other business organization or division thereof, or otherwise
acquire or agree to acquire any assets that are material, individually or in
the aggregate, to its business, taken as a whole;
(s) TAXES. Make or change any material election in respect of Taxes,
adopt or change any accounting method in respect of Taxes, file any
amendment to a material Tax Return, enter into any closing agreement, settle
any claim or assessment in respect of Taxes, or consent to any extension or
waiver of the limitation period applicable to any claim or assessment in
respect of Taxes;
(t) REVALUATION. Revalue any of its assets, including without
limitation writing down the value of inventory or writing off notes or
accounts receivable other than in the ordinary course of business; or
(u) OTHER. Take or agree in writing or otherwise to take, any of the
actions described in Sections 4.2(a) through (t) above, or any action that
would make any of its representations or warranties contained in this
Agreement untrue or incorrect in any material respect or prevent it from
performing or cause it not to perform its covenants hereunder.
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4.3 NO SOLICITATION. Ezlogin shall not, and shall cause its officers,
directors, employees, shareholders and other agents to not, directly or
indirectly, (i) take any action to solicit, initiate or encourage any Takeover
Proposal or (ii) engage in negotiations with, or disclose any nonpublic
information relating to Ezlogin, or afford access to the properties, books or
records of Ezlogin, to any person that has advised Ezlogin that it may be
considering making, or that has made, a Takeover Proposal. Ezlogin shall not,
and shall not permit any of its officers, directors, employees, shareholders or
other representatives to agree to or endorse any Takeover Proposal. Ezlogin will
promptly notify 724 Solutions after receipt of any Takeover Proposal or any
request for nonpublic information relating to Ezlogin or for access to the
properties, books or records of Ezlogin by any person that has advised Ezlogin
that it may be considering making, or that has made, a Takeover Proposal and
will keep 724 Solutions informed of the status and details of any such Takeover
Proposal notice, request or any correspondence or communications related thereto
and shall provide 724 Solutions with a true and complete copy of such Takeover
Proposal notice or request or correspondence or communications related thereto,
if it is in writing, or a written summary thereof, if it is not in writing.
ARTICLE V
ADDITIONAL AGREEMENTS
5.1 REGISTRATION EXEMPTION; FAIRNESS HEARING.
(a) Ezlogin shall cooperate with 724 Solutions with respect to any
qualification for exemption from registration under federal securities laws, or
for qualification or exemption under state securities or "blue sky" laws,
pursued by 724 Solutions with respect to the shares of 724 Solutions Common
Stock to be issued pursuant to this Agreement. Without limiting the generality
of the foregoing, Ezlogin shall:
promptly provide to 724 Solutions all pertinent information concerning
Ezlogin, its capital stock and the Shareholders and Optionholders;
promptly review and comment on any documents or drafts supplied by 724
Solutions;
promptly take all other actions as 724 Solutions may reasonably request; and
promptly inform 724 Solutions, at any time prior to the Effective Time, of
any event or information discovered by Ezlogin that should be set forth in
an amendment to the Hearing Documents.
(b) The information provided by Ezlogin and 724 Solutions shall not contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading. Whenever
Ezlogin obtains any Knowledge of any event that causes any of such information
provided by Ezlogin to contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading, Ezlogin shall promptly inform 724 Solutions. Ezlogin shall
promptly inform 724 Solutions if it obtains any Knowledge of any event or
occurrence that should be set forth in an amendment or a supplement to any
application or other documents relating to the exemption from registration, and
will cooperate in mailing to the Shareholders and Optionholders such amendments
or supplements as may be appropriate.
(c) All parties hereto acknowledge that 724 Solutions intends to apply to
the California Commissioner of Corporations for a permit (the "Permit"), which
may only be issued after a public hearing on the fairness of the terms and
conditions of the Merger (the "Fairness Hearing"), in order to be eligible to
issue 724 Solutions Common Stock to the Shareholders of Ezlogin pursuant to an
exemption from the registration requirements of the Securities Act, provided by
Section 3(a)(10) of the Securities Act. As soon as reasonably practicable
following the date of the Original Merger Agreement, 724 Solutions, with the
full cooperation and assistance of Ezlogin, shall prepare and file with the
California Department of Corporations an Application for Qualification of
Securities by Permit under Section 25121 of the California Corporate Securities
Law of 1968, as amended, and related materials required to be filed in
connection with such Application (collectively, the "Hearing Documents"). 724
Solutions and Ezlogin will thereafter endeavor in good faith to obtain a finding
of fairness and the issuance of a Permit to such effect by the California
Department of Corporations as a result of such hearing, but they shall in no
event be required to alter the terms of the Merger or this Agreement in order to
25
obtain such finding and issuance. All parties hereto shall proceed expeditiously
and cooperate fully in making available all information necessary to complete
the Permit application and to participate as may be necessary or appropriate at
the Fairness Hearing.
(d) In the event 724 Solutions shall not have received a favorable
determination in the Fairness Hearing and a Permit covering all of the shares of
724 Solutions Common Stock to be issued in the Merger such that the issuance
qualifies for exemption under the 3(a)(10) Exemption, the Closing of the Merger
and the other transactions contemplated by this Agreement will take place as
provided in Section 1.2 hereof, provided that the shares of 724 Solutions Common
Stock to be issued to the Ezlogin Shareholders hereunder shall, provided such
exemption is available for the shares of 724 Solutions Common Stock issued in
the Merger, be issued in a private placement as "restricted securities" as
defined under Rule 144 of the Securities Act, and the parties shall comply with
Section 5.20 hereof.
5.2 TRANSFER RESTRICTIONS AND HOLDERS' AGREEMENTS.
(a) EMPLOYEE RESTRICTIONS. Each share of 724 Solutions Common Stock issued
at the Closing or upon the exercise of an Assumed Option, to any Holder, other
than a Non-Employee Shareholder (each, an "Employee Holder"), shall be subject
to the transfer restrictions described, and all other provisions set forth, in
the form of the Employee Holders' Agreement attached hereto as Exhibit C-1 (the
"Employee Holders' Agreement"), as if all such restrictions and provisions were
set forth in full in the body of this Agreement, whether or not an Employee
Holder executes and delivers an Employee Holders' Agreement.
(b) NON-EMPLOYEE RESTRICTIONS. Each share of 724 Solutions Common Stock
issued at the Closing to a Shareholder listed on Schedule 5.2(b) hereof (each, a
"Non-Employee Shareholder") shall be subject to the transfer restrictions
described, and all other provisions set forth, in the form of Non-Employee
Shareholders' Agreement attached hereto as Exhibit C-2 (the "Non-Employee
Shareholders' Agreement"), as if all such restrictions and provisions were set
forth in full in the body of this Agreement, whether or not a Non-Employee
Shareholder executes and delivers a Non-Employee Shareholders' Agreement.
(c) REPURCHASE OF UNVESTED SHARES. If 724 Solutions does not assume the
Assumed Options in connection with the Merger, each share of 724 Solutions
Common Stock issued at the Closing to an Employee Holder in exchange for an
Unvested Share shall be subject to the Unvested Share Repurchase Option, in
favor of 724 Solutions, described and set forth in the Employee Holder Agreement
(the "Unvested Share Repurchase Option") as if all of such Unvested Share
Repurchase Option was set forth in full in the body of this Agreement, whether
or not an Employee Holder executes and delivers an Employee Holder Agreement.
For purposes of the foregoing, "Unvested Share" shall mean any shares of Ezlogin
Capital Stock issued upon the early exercise of an Ezlogin Option as
contemplated by Section 5.9 hereof, or that were subject to a right of
repurchase by Ezlogin immediately prior to the Closing.
(d) EXECUTION OF HOLDERS' AGREEMENTS. Ezlogin will use its best efforts to
cause each Holder to execute and deliver to 724 Solutions an Employee Holders'
Agreement or a Non-Employee Shareholders' Agreement (including the delivery of
all documents requested therein), as the case may be, on or prior to the Closing
Date. Any such Employee Holders' Agreement or a Non-Employee Shareholders'
Agreement (collectively, the "Holders' Agreements") which will disclose any
liens or other encumbrances on such Holder's shares of Ezlogin Capital Stock
shall be delivered to 724 Solutions no later than ten (10) business days prior
to the Closing Date.
(e) COMPLIANCE WITH LAWS. Notwithstanding anything herein to the contrary,
no Shareholder or Optionholder may transfer any shares of 724 Solutions Common
Stock other than in compliance with all applicable federal, state and foreign
securities laws, including any laws relating to registration or qualification or
the qualification for exemption therefrom, and, without limiting the generality
of the foregoing, all "Affiliates" of Ezlogin may not transfer the 724 Solutions
Common Stock issued to Shareholders in the Merger or to any Optionholder upon
the exercise of any Assumed Options, unless such transfer is made in conformity
with the requirements of Rule 145(d) promulgated under the Securities Act.
(f) CANADIAN SECURITIES LAWS; EXEMPTION. 724 Solutions will use its
commercially reasonable efforts to obtain, and will provide such evidence as is
reasonably available and reasonably requested by Ezlogin of, all necessary
rulings or orders of Canadian securities regulatory authorities exempting the
distribution by 724 Solutions of the 724 Solutions Common Stock and options to
purchase 724 Solutions Common Stock
26
pursuant to the Merger, and the resale of such shares of 724 Solutions Common
Stock in the United States (including shares to be issued under 724 Solutions'
2000 Stock Option Plan), from the registration and prospectus requirements under
applicable Canadian securities laws on terms reasonably satisfactory to 724
Solutions and Ezlogin.
5.3 ACCESS TO INFORMATION; CONFIDENTIALITY.
(a) Ezlogin shall afford 724 Solutions and its accountants, counsel and
other representatives, reasonable access during normal business hours upon
reasonable prior notice and in a manner so as not to unreasonably interfere with
Ezlogin's normal business operations, during the period prior to the Effective
Time to (i) all of Ezlogin's properties, books, contracts, commitments and
records, and (ii) all other information concerning the business, properties and
personnel of Ezlogin as 724 Solutions may reasonably request. Ezlogin agrees to
promptly make available to 724 Solutions and its accountants, counsel and other
representatives copies of internal financial statements and other information
promptly upon request. Any such information shall constitute "Confidential
Information" pursuant to the Mutual Non-Disclosure Agreement between
724 Solutions and Ezlogin dated as of February 2, 2000 (the "NDA"), the terms of
which shall remain in effect pursuant to its terms during and after the term
hereof.
(b) Subject to compliance with applicable law, from March 30, 2000 until the
Effective Time, each of 724 Solutions and Ezlogin shall confer on a regular and
frequent basis with one or more representatives of the other party to report
operational matters of materiality and the general status of ongoing operations.
(c) No information or knowledge obtained in any investigation pursuant to
this Section 5.3 shall affect or be deemed to modify any representation or
warranty contained herein or the conditions to the obligations of the parties to
consummate the Merger.
(d) Ezlogin shall promptly provide 724 Solutions and its accountants,
counsel and other representatives reasonable access, during normal business
hours during the period prior to the Effective Time, to all of Ezlogin's Tax
Returns and other records and workpapers relating to Taxes, including the
following: (i) the types of Tax Returns being filed by Ezlogin in each taxing
jurisdiction, (ii) the year of the commencement of the filing of each such type
of Tax Return, (iii) all closed years with respect to each such type of Tax
Return filed in each jurisdiction, (iv) all material Tax elections filed in each
jurisdiction by Ezlogin, (v) any deferred intercompany gain with respect to
transactions to which Ezlogin has been a party, and (vi) receipts for any Taxes
paid to foreign Tax authorities.
(e) Ezlogin shall ensure that prior to the Effective Time, Ezlogin and its
representatives shall keep strictly confidential the existence and terms of this
Agreement, the other Transaction Agreements and the Merger, all of which shall
constitute "Confidential Information" under the NDA, except to the extent
necessary to comply with its obligations hereunder, and as otherwise provided in
the NDA.
5.4 PUBLIC DISCLOSURE. 724 Solutions and, with 724 Solutions' prior written
consent, Ezlogin may issue press releases or otherwise make any public statement
or make any other public (or non-confidential) disclosure (whether or not in
response to an inquiry) regarding the terms of this Agreement and the
transactions contemplated hereby.
5.5 CONSENTS; COOPERATION.
(a) Each of 724 Solutions and Ezlogin shall promptly apply for or otherwise
seek, and use its best efforts to obtain, all consents and approvals required to
be obtained by it for the consummation of the Merger. Ezlogin shall use its
commercially reasonable efforts to obtain all necessary consents, waivers and
approvals under any of the contracts listed on Schedule 2.31 hereof in
connection with the Merger for the assignment thereof or otherwise. The parties
hereto will consult and cooperate with one another, and consider in good faith
the views of one another, in connection with any analyses, appearances,
presentations, memoranda, briefs, arguments, opinions and proposals made or
submitted by or on behalf of any party hereto in connection with proceedings
under any federal or state antitrust or fair trade law.
(b) Each of 724 Solutions and Ezlogin shall use all commercially reasonable
efforts to resolve such objections, if any, as may be asserted by any
Governmental Entity with respect to the transactions contemplated
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by this Agreement under the Xxxxxxx Act, as amended, the Xxxxxxx Act, as
amended, the Federal Trade Commission Act, as amended, and any other Federal,
state or foreign statutes, rules, regulations, orders or decrees that are
designed to prohibit, restrict or regulate actions having the purpose or effect
of monopolization or restraint of trade (collectively, "Antitrust Laws"). In
connection therewith, if any administrative or judicial action or proceeding is
instituted (or threatened to be instituted) challenging any transaction
contemplated by this Agreement as violative of any Antitrust Law, each of 724
Solutions and Ezlogin shall cooperate and use all commercially reasonable
efforts vigorously to contest and resist any such action or proceeding and to
have vacated, lifted, reversed, or overturned any decree, judgment, injunction
or other order, whether temporary, preliminary or permanent (each an "Order"),
that is in effect and that prohibits, prevents, or restricts consummation of the
Merger or any such other transactions, unless by mutual agreement 724 Solutions
and Ezlogin decide that litigation is not in their respective best interests.
Notwithstanding the provisions of the immediately preceding sentence, it is
expressly understood and agreed that neither party shall have any obligation to
litigate or contest any administrative or judicial action or proceeding or any
Order beyond the date of a ruling preliminarily enjoining the Merger issued by a
court of competent jurisdiction. Each of 724 Solutions and Ezlogin shall use all
commercially reasonable efforts to take such action as may be required to cause
the expiration of the notice periods under applicable Antitrust Laws with
respect to such transactions as promptly as possible after the execution of this
Agreement.
(c) Notwithstanding anything to the contrary in Section 5.5(a) or (b),
(i) 724 Solutions shall not be required to divest any of its or its subsidiaries
businesses, product lines or assets, or to take or agree to take any other
action or agree to any limitation that could reasonably be expected to have a
Material Adverse Effect on 724 Solutions or on the Surviving Corporation after
the Effective Time.
5.6 AFFILIATES. Schedule 5.6 sets forth those persons who may be deemed
"Affiliates" of Ezlogin within the meaning of Rule 145 promulgated under the
Securities Act ("Rule 145"). Ezlogin shall provide 724 Solutions such
information and documents as 724 Solutions shall reasonably request for purposes
of reviewing such list. As provided in the Voting Agreement, the 724 Solutions
Common Stock issued to Affiliates hereunder shall be subject restrictions on
transfer pursuant to Rule 145 under the Securities Act and 724 Solutions shall
be entitled to place appropriate legends on the certificates evidencing any 724
Solutions Common Stock to be received by such Affiliates pursuant to the terms
of this Agreement and the Voting Agreement and to issue appropriate stock
transfer instructions to the transfer agent for 724 Solutions Common Stock.
5.7 LEGAL REQUIREMENTS. Each of 724 Solutions and Ezlogin shall take all
reasonable actions necessary to comply promptly with all legal requirements that
may be imposed on them with respect to the consummation of the transactions
contemplated by this Agreement and will promptly cooperate with and furnish
information to any party hereto necessary in connection with any such
requirements imposed upon such other party in connection with the consummation
of the transactions contemplated by this Agreement and will take all reasonable
actions necessary to obtain (and will cooperate with the other parties hereto in
obtaining) any consent, approval, order or authorization of, or any
registration, declaration or filing with, any Governmental Entity or other
person, required to be obtained or made in connection with the taking of any
action contemplated by this Agreement.
5.8 SHAREHOLDER APPROVAL.
(a) Ezlogin shall promptly after the date of the Original Merger Agreement
take all action necessary in accordance with California Law and its Articles of
Incorporation and Bylaws to call, give notice of, convene and hold the Ezlogin
Shareholders meeting or, if requested by 724 Solutions, to secure the written
consent of its Shareholders as soon as possible, but in no event later than five
(5) days or such later date as may be required by the California Commissioner of
Corporations, after the date of a favorable determination in the Fairness
Hearing and the issuance of the Permit. Ezlogin shall consult with 724 Solutions
regarding the date of the Ezlogin Shareholders Meeting and shall not postpone or
adjourn (other than for the absence of a quorum) the Ezlogin Shareholders
Meeting without the consent of 724 Solutions. Ezlogin shall use its reasonable
best efforts to solicit from Shareholders of Ezlogin proxies or consents in
favor of the Merger and shall take all other action necessary or advisable to
secure the vote or consent of Shareholders required to effect the Merger.
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(b) Without limiting the generality of the foregoing, promptly after the
execution of this Agreement, Ezlogin, in consultation with 724 Solutions, will
prepare an Information Statement (the "Fairness Hearing Information Statement")
to be used in connection with obtaining the approval by the Shareholders of this
Agreement. Ezlogin shall not distribute the Fairness Hearing Information
Statement without 724 Solutions' approval; provided, that 724 Solutions shall in
no way be responsible for any of the content of the Fairness Hearing Information
Statement except as it pertains to and is supplied by 724 Solutions. Each of
Ezlogin and 724 Solutions shall ensure that the Fairness Hearing Information
Statement does not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading with respect to Ezlogin or 724 Solutions, as the case may be.
Whenever either of Ezlogin or 724 Solutions, as the case may be, obtains any
Knowledge of any event that should be set forth in an amendment or a supplement
to the Fairness Hearing Information Statement or 724 Solutions disclosure
documents, Ezlogin or 724 Solutions, as the case may be, will promptly inform
724 Solutions or Ezlogin, as the case may be, and will cooperate in mailing to
the Shareholders or the Optionholders as requested by 724 Solutions such
amendment or supplement.
(c) Ezlogin, acting through its Board of Directors, shall, in accordance
with all applicable legal requirements and Ezlogin's charter and bylaws:
cause the Fairness Hearing Information Statement and any other disclosure
documents deemed appropriate by 724 Solutions to be mailed to the
Shareholders and Optionholders of Ezlogin promptly upon completion thereof
and duly call, give notice of, convene and hold as soon as practicable a
meeting (or, if requested by 724 Solutions, solicit an action by written
consent in lieu thereof) (the "Ezlogin Shareholders Meeting") of the
Shareholders for the purpose of voting to approve and adopt this Agreement
(and the 280G Payments, to the extent applicable), to the extent required in
accordance with legal requirements, and use its best efforts to obtain such
Shareholder approval;
recommend approval and adoption of this Agreement (and the 280G Payments, to
the extent applicable) and the other transaction agreements to which Ezlogin
is a party by the Shareholders of Ezlogin, and include in the Fairness
Hearing Information Statement such recommendation, and take all lawful
action to solicit such approval; and
to the extent that the Merger and the transactions contemplated by this
Agreement result in the acceleration of vesting of stock options and
restricted stock awards with respect to Ezlogin's stock which may cause an
excise tax under Section 4999 of the Code or the nondeductibility of a
deduction under Section 280G of the Code (the "280G Payments"), Ezlogin
shall include in the disclosure documents to be mailed to the Shareholders
pursuant to subsection (i) above, a golden parachute disclosure (which shall
be subject to the approval of 724 Solutions, not to be unreasonably
withheld), for the purpose of soliciting the vote of the Shareholders (or,
if requested by 724 Solutions, an action by written consent in lieu thereof)
to approve the 280G Payments such that they shall not constitute "parachute
payments" for purposes of Sections 280G and 4999 of the Code, by such vote
as is required by the Code and any other applicable legal requirements, and
Ezlogin shall use its best efforts to obtain such Shareholder approval.
724 Solutions may at its discretion request Ezlogin to pursue either a
Shareholder Meeting or a solicitation of written consents, and 724 Solutions'
requesting of either such method shall not preclude a request for the other.
(d) The timing and procedures of such meeting (or consent solicitation)
shall be subject to the reasonable approval of 724 Solutions and, if applicable,
shall be completed as promptly as practicable after the issuance of the Permit.
5.9 EZLOGIN OPTIONS AND EZLOGIN CONVERTIBLE SECURITIES.
(a) OUTSTANDING OPTIONS. Schedule 2.2 of the Ezlogin Disclosure Schedule
sets forth a true and complete list as of May 9, 2000 of all holders of
outstanding options under the Ezlogin Stock Option Plan, including the number of
shares of Ezlogin Capital Stock subject to each such option, the exercise or
vesting schedule, the exercise price per share and the term of each such option.
On the Closing Date, Ezlogin shall deliver to 724 Solutions an updated
Schedule 2.2 current as of such date.
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(b) ASSUMPTION OF EZLOGIN STOCK OPTION PLAN. If, pursuant to
Section 1.6(c) hereof, 724 Solutions assumes Ezlogin Stock Options in connection
with the Merger:
(i) At the Effective Time, the Ezlogin Stock Option Plan and each
outstanding Ezlogin Option, whether vested or unvested, will be assumed by
724 Solutions. Each such Ezlogin Option so assumed by 724 Solutions (as so
assumed, the "Assumed Options") shall continue to have, and be subject to,
the same terms and conditions set forth in the Ezlogin Stock Option Plan and
the applicable stock option agreement immediately prior to the Effective
Time, except that:
a. such option will be exercisable for that number of whole shares
of 724 Solutions Common Stock equal to the product of the number of
shares of Ezlogin Common Stock that were issuable upon exercise of such
option immediately prior to the Effective Time, multiplied by the
Exchange Ratio, and rounded down to the nearest whole number of shares of
724 Solutions Common Stock; and
b. the per share exercise price for the shares of 724 Solutions
Common Stock issuable upon exercise of such assumed option will be equal
to the quotient of the exercise price per share of Ezlogin Common Stock
at which such option was exercisable immediately prior to the Effective
Time, divided by the Exchange Ratio, rounded up to the nearest whole
cent.
The date of grant of each Assumed Option shall be the date on which such Ezlogin
Option was originally granted. Consistent with the terms of the Ezlogin Stock
Option Plan and the documents governing the Ezlogin Options, the Merger will not
terminate any of the outstanding options under the Ezlogin Stock Option Plan or,
except as disclosed in Schedule 2.2 hereof, accelerate the vesting of such
Ezlogin Options. It is the intention of the parties that the Ezlogin Options so
assumed by 724 Solutions qualify, to the maximum extent permissible, following
the Effective Time as incentive stock options as defined in Section 422 of the
Code to the extent such options qualified as incentive stock options prior to
the Effective Time.
(ii) NOTICE OF ASSUMPTION. As soon as reasonably practical after the
Effective Time, 724 Solutions will deliver to each person who, at the
Effective Time, was a holder of an outstanding Ezlogin Option a notice
stating that:
a. such Ezlogin Option has been assumed by 724 Solutions and shall
continue in effect subject to the terms and conditions applicable thereto
immediately prior to the Effective Time, except as otherwise provided
herein;
b. the number of shares of 724 Solutions Common Stock covered by
such Ezlogin Option and the per share exercise price for such shares of
724 Solutions Common Stock;
c. and the number and identification of Ezlogin Options which are
Subject Options.
(iii) ASSIGNMENT OF REPURCHASE RIGHT. All outstanding rights of Ezlogin
immediately prior to the Effective Time to repurchase shares of Ezlogin
Common Stock under the Ezlogin Stock Option Plan and pursuant to any Ezlogin
Options shall be assigned to 724 Solutions in the Merger and shall
thereafter be exercisable by 724 Solutions upon the same terms and
conditions in effect immediately prior to the Effective Time, except that
the shares purchasable pursuant to such right and the purchase price per
share shall be adjusted to reflect the Exchange Ratio.
(iv) AMENDMENT OF EZLOGIN STOCK OPTION PLAN. Prior to Closing, Ezlogin
shall take all necessary or appropriate actions (including amending the
Ezlogin Stock Option Plan and any option agreements, if required, and
soliciting the consent of the Optionholders) to:
a. make such amendments as 724 Solutions shall reasonably determine
are necessary to comply with Canadian securities laws that will become
applicable to the Ezlogin Stock Option Plan at the Effective Time or
otherwise by reason of the Merger; and
b. provide for the cancellation or termination of Subject Options to
satisfy any indemnity obligation of the Optionholders pursuant to
Article VIII hereof, and the distribution of Subject Shares to the Escrow
Agent, to the extent applicable, pursuant to Article VIII of this
Agreement.
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(v) REGISTRATION. 724 Solutions shall use reasonable best efforts to
file (provided that 724 Solutions has received all option documentation
relating to the outstanding Ezlogin Options):
a. no later than one day following the termination of the IPO Lockup
(as defined in the Holders' Agreements), a registration statement on
Form S-8 under the Securities Act covering the shares of 724 Solutions
Common Stock issuable pursuant to outstanding Assumed Options granted to
individuals then providing services to Ezlogin as employees or
consultants; and
b. no later than February 1, 2001, a registration statement on
Form S-3 under the Securities Act covering the shares of 724 Solutions
Common Stock issuable pursuant to outstanding Assumed Options granted to
entities or to individuals not then providing services to Ezlogin as
employees or consultants under the Ezlogin Stock Option Plan assumed by
724 Solutions or otherwise issued in compensatory transactions to
entities or to individuals not then providing services to Ezlogin as
employees or consultants.
(c) EXERCISE OR TERMINATION OF EZLOGIN OPTIONS. If, pursuant to
Section 1.6(c), 724 Solutions does not assume the Assumed Options in
connection the Merger:
(i) Immediately prior to the Effective Time, all Ezlogin Options then
outstanding under the Ezlogin Stock Option Plan, whether or not vested, may
be exercised in full by the holders thereof. Any Ezlogin Option outstanding
under the Ezlogin Stock Option Plan will be terminated at the Effective Time
if not exercised prior to the Effective Time.
(ii) AMENDMENT OF EZLOGIN STOCK OPTION PLAN.
a. Subject to Section 5.9(c)(ii)(b) below, immediately following the
execution and delivery of a Holders' Agreement by each holder of an
unvested Ezlogin Option, Ezlogin shall cause (x) each Ezlogin Option
(and, to the extent necessary, the Ezlogin Stock Option Plan) held by a
non-United States taxpayer to be amended to allow (1) the immediate
exercise of such Ezlogin Option (including as to unvested shares) and
(2) payment of the exercise price of such Ezlogin Option with a
full-recourse promissory note (with such terms as are described below and
in a form reasonably satisfactory to 724 Solutions); and (y) each Ezlogin
Option (and, to the extent necessary, the Ezlogin Stock Option Plan) held
by a United States taxpayer to be amended to allow the immediate exercise
of such Ezlogin Option (including as to unvested shares). Each promissory
note shall (A) be secured by the 724 Solutions Common Stock to be
received by such holder in the Merger and any other shares of
724 Solutions Common Stock which may be received by such holder in the
future (excluding shares purchased by such Shareholder on the open
market), (B) have an interest rate equal to the lowest interest rate
prescribed by such holder's income tax law to avoid the imputation of
interest income; (C) mature on the one (1) year anniversary of the
Closing; (D) provide that if at any time while such note is outstanding
the holder debtor sells his shares of 724 Solutions Common Stock received
in the Merger, all amounts owing under such promissory note shall
accelerate and become due and payable on the tenth (10th) day following
any such sale and if the holder debtor voluntarily terminates his
employment with Ezlogin (or its successor) or is terminated by Ezlogin
(or its successor) "for cause," all amounts owing under such promissory
note shall accelerate and become due and payable on the fifth (5th) day
following any such termination; and (E) have such other terms as may be
reasonably required by Ezlogin. The promissory notes issued pursuant to
this Section 5.9(c)(ii) shall not exceed US $528,000 in the aggregate.
Also, in furtherance of the above, Ezlogin shall amend and restate each
option agreement entered into by an Optionholder pursuant to the Ezlogin
Stock Option Plan in the form of the Ezlogin Stock Option Agreement
(Immediately Exercisable), attached hereto as Exhibit J.
b. If any holder of an unvested Ezlogin Option does not execute and
deliver a Holders' Agreement on or prior to the Closing Date, such
holder's option agreement(s) covering the unvested Ezlogin Options held
by such holder shall not be amended as provided in Section 5.9(c)(ii)(a)
hereof, and all of such holder's unvested Ezlogin Options shall not be
assumed by 724 Solutions and shall terminate as of the Effective Time and
such holder shall not be entitled to receive any Merger Consideration or
other consideration therefor.
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(iii) POST CLOSING LOANS TO EZLOGIN OPTIONHOLDERS. After January 1,
2001, but not later than April 1, 2001, the Surviving Corporation shall
extend loans to no more than 16 Shareholders, in an aggregate amount not to
exceed US $666,000.00. Each such loan shall be fully secured by the shares
of 724 Solutions Common Stock received by such Shareholder in the Merger and
any other shares of 724 Solutions Common Stock which may be received by such
Shareholder in the future (excluding shares purchased by such Shareholder on
the open market), and evidenced by a full-recourse promissory note, with a
term which shall not extend past the two (2) year anniversary of the Closing
Date, with interest at the "prime rate" as published by the Wall Street
Journal (or, if the Wall Street Journal no longer publishes such rate, a
comparable publication) on the day of the loan, and such other terms as may
be reasonably required by the Surviving Corporation and 724 Solutions. Each
promissory note shall also provide that if at any time while such note is
outstanding the Shareholder debtor sells his shares of 724 Solutions Common
Stock received in the Merger, all amounts owing under such promissory note
shall accelerate and become due and payable on the tenth (10th) day
following any such sale and if the Shareholder debtor voluntarily terminates
his employment with Surviving Corporation (or its successor) or is
terminated by Surviving Corporation (or its successor) "for cause," all
amounts owing under such promissory note shall accelerate and become due and
payable on the fifth (5th) day following any such termination.
(d) CONVERTIBLE SECURITIES. Immediately prior to the Effective Time, all
Ezlogin Convertible Securities, whether or not presently convertible shall be
converted into shares of Ezlogin Common Stock by Ezlogin or exercised by the
holders thereof, as applicable.
5.10 TERMINATION OF EMPLOYEE PLANS. At or prior to the Closing, Ezlogin
shall execute and deliver all necessary instruments and documents and do and
perform such other acts to terminate the Ezlogin Employee Plans (except insofar
as Section 5.9(b) applies to the Ezlogin Stock Option Plan, which in such event
shall be assumed by 724 Solutions as of the Effective Time) listed on
Schedule 2.14 other than employee welfare benefit plans (as defined in
Section 3(1) of ERISA).
5.11 GRANTING OF 724 SOLUTIONS OPTIONS.
(a) At the Effective Time, 724 Solutions shall grant the following options
to purchase 724 Solutions Common Stock under 724 Solutions' 2000 Stock Option
Plan, or another plan maintained by 724 Solutions which comports with the
requirements of applicable French law to allow the favorable treatment for such
options issued to French employees, which options will be subject to 724
Solutions' standard terms and conditions, including vesting, provided such terms
are allowed under the requirements of applicable French law to allow the
favorable treatment for such options issued to French employees (the "724
Solutions Options"): (i) 100,000 724 Solutions Options to selected key Ezlogin
employees (such allocation to be mutually agreed upon by 724 Solutions and
Ezlogin); and (ii) 75,000 724 Solutions Options to Xxxx-Xxxx Xxxxxx. The
exercise price for the 724 Solutions Stock Options shall be the closing price
for a share of 724 Solutions Common Stock as quoted on the Nasdaq Stock Market
for the trading day immediately preceding the Closing. The number of
724 Solutions Options granted hereunder shall be adjusted to reflect fully the
effect of any stock split, reverse stock split, stock dividend (including any
dividend or distribution of securities convertible into or exchangeable for
724 Solutions Common Stock), reorganization, recapitalization or other like
change with respect to 724 Solutions Common Stock occurring after March 30, 2000
and prior to the Effective Time.
(b) Ezlogin employees after the Closing will be eligible to receive
additional options to purchase 724 Solutions Common Stock pursuant to existing
option plans of 724 Solutions. The number, vesting and timing of grants of such
options shall be based on criteria applied to other similarly situated 724
Solutions employees.
(c) The 724 Solutions Common Stock to be issued upon the exercise of such
724 Solutions Options has been duly and validly reserved for issuance and, upon
issuance in accordance with the terms of 724 Solutions' 2000 Stock Option Plan,
or any such other plan, will be duly and validly issued, fully paid,
nonassessable, free of any liens or encumbrances (other than any liens or
encumbrances created by the holder thereof) and free of restrictions on transfer
other than restrictions on transfer under this Agreement and applicable Canadian
Securities Laws and United States state and federal securities laws or other
applicable French laws.
(d) 724 Solutions shall use reasonable best efforts to file, no later than
the day following the termination of the IPO Lockup (as defined in the Holders'
Agreements) a registration statement on Form S-8 under the
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Securities Act covering the shares of 724 Solutions Common Stock issuable
pursuant to the 724 Solution Options.
5.12 ESCROW AGREEMENT. On or before the Effective Time, the Escrow Agent,
the Shareholders' Agent (as defined in Article VIII hereto), Ezlogin and 724
Solutions will execute the Escrow Agreement contemplated by Article VIII in
substantially the form attached hereto as Exhibit E ("Escrow Agreement").
5.13 EXPENSES. Whether or not the Merger is consummated, all costs and
expenses incurred in connection with this Agreement, the Agreement of Merger and
the transactions contemplated hereby and thereby shall be paid by the party
incurring such expense; provided, however, that if the Merger is not
consummated, 724 Solutions shall pay all tax liabilities of Merger Sub.
5.14 BEST EFFORTS AND FURTHER ASSURANCES. Each of the parties to this
Agreement shall use its reasonable best efforts to obtain the signatures of key
Ezlogin management and Shareholders on all agreements, and effectuate the
transactions contemplated hereby and to fulfill and cause to be fulfilled the
conditions to closing under this Agreement. Each party hereto, at the reasonable
request of another party hereto, shall execute and deliver such other
instruments and do and perform such other acts and things as may be necessary or
desirable for effecting completely the consummation of this Agreement and the
transactions contemplated hereby.
5.15 EMPLOYMENT AND NON-COMPETE AGREEMENTS.
(a) Set forth on Schedule 5.15(a) is a list of key employees of Ezlogin to
whom Surviving Corporation will make an offer of employment ("Key Employees").
Each Key Employee shall execute and deliver an Employment and Non-Competition
Agreement substantially in the form of Exhibit F attached hereto ("Employment
and Non-Competition Agreement"). Ezlogin shall cooperate with 724 Solutions to
assist Surviving Corporation in entering into an Employment and Non-Competition
Agreement with such Key Employees.
(b) Set forth on Schedule 5.15(b) is a list of other employees of Ezlogin to
whom 724 Solutions will make an offer of employment ("Other Employees"). Certain
of the Other Employees, as indicated on Schedule 5.15(b), shall execute and
deliver an Employment Agreement substantially in the form of Exhibit G attached
hereto ("Employment Agreement"). Ezlogin shall cooperate with 724 Solutions to
assist 724 Solutions in entering into an Employment Agreement with such Other
Employees.
(c) 724 Solutions shall have no obligation to make an offer of employment to
any employee of Ezlogin except those listed on Schedule 5.15(a) and
Schedule 5.15(b).
5.16 NOTICES. Ezlogin shall give all notices and other information required
to be given to the employees of Ezlogin under the WARN Act and the Consolidated
Omnibus Budget Reconciliation Act of 1985 in connection with the transactions
provided for in this Agreement.
5.17 NOTIFICATION; UPDATES TO DISCLOSURE SCHEDULE.
(a) Ezlogin shall promptly notify 724 Solutions in writing of:
the discovery by Ezlogin of any event, condition, fact or circumstance that
occurred or existed on or prior to the date of the Original Merger Agreement
and that caused or constitutes a material breach of any representation or
warranty made by Ezlogin in this Agreement;
any event, condition, fact or circumstance that occurs, arises or exists
after the date of the Original Merger Agreement and that would cause or
constitute a material breach of any representation or warranty made by
Ezlogin in this Agreement if (1) such representation or warranty had been
made as of the time of the occurrence, existence or discovery of such event,
condition, fact or circumstance, or (2) such event, condition, fact or
circumstance had occurred, arisen or existed on or prior to the date of the
Original Merger Agreement;
any material breach of any covenant or obligation of Ezlogin; and
any event, condition, fact or circumstance that may make the timely
satisfaction of any of the conditions set forth in Article VI impossible or
unlikely.
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(b) If any event, condition, fact or circumstance that is required to be
disclosed pursuant to Section 5.17(a) results in a material change to any
representation or warranty in the Ezlogin Disclosure Schedule, or if any such
event, condition, fact or circumstance would require such a change assuming the
Ezlogin Disclosure Schedule were dated as of the date of the occurrence,
existence or discovery of such event, condition, fact or circumstance, then
Ezlogin shall promptly deliver to 724 Solutions an update to the Ezlogin
Disclosure Schedule specifying such change (a "Disclosure Schedule Update");
provided, that no such update shall be deemed to supplement or amend the Ezlogin
Disclosure Schedule for the purpose of (i) determining the accuracy of any of
the representations and warranties made by Ezlogin in this Agreement or
(ii) determining whether any of the conditions set forth in Article VI has been
satisfied. On the Closing Date, Ezlogin shall deliver to 724 Solutions an update
of the Ezlogin Disclosure Schedule, current as of such date.
5.18 DIRECTOR AND OFFICER INDEMNIFICATION. The certificate of incorporation
and bylaws of the Surviving Corporation after the Effective Time shall contain
provisions no less favorable with respect to indemnification of directors and
officers than are set forth in the certificate of incorporation and bylaws of
Merger Sub as of March 30, 2000, which provisions shall not be amended, repealed
or otherwise modified for a period of three years from the Effective Date in any
manner that would affect adversely the rights thereunder of individuals who at
the Effective Time were directors and officers of Ezlogin, unless such
modification shall be required by applicable law. The provisions of this
Section 5.18 shall survive the consummation of the Merger and are expressly
intended to benefit each of the individuals who at the Effective Time were
directors and officers of Ezlogin.
5.19 EMPLOYEE BENEFIT PLANS. Following the Effective Time and until at
least December 31, 2000, 724 Solutions, in its sole and absolute discretion,
shall either: (a) continue (or cause Ezlogin to continue) to maintain the
Ezlogin Employee Plans (excluding the Ezlogin Stock Option Plan and any bonus,
referral bonus or incentive payment arrangements (other than with respect to
amounts accrued or earned prior to the Effective Time)) (the "Ezlogin Welfare
Plans") on substantially the same terms in the aggregate as in effect
immediately prior to the Effective Time, or (b) arrange for each participant in
the Ezlogin Welfare Plans ("Ezlogin Participants") to participate in 724
Solutions' (or its applicable subsidiary's) plans which are, in the aggregate,
and taking into account benefits provided pursuant to the provisions of
applicable law, in substance no less favorable, on a plan-by-plan basis, than
those provided to other similarly situated (as to seniority, job description and
salary, not as to location) employees of 724 Solutions and its other
subsidiaries from time to time ("724 Solutions Plans"), or (c) a combination of
clauses (a) and (b). Each Ezlogin Participant who continues to be employed by
724 Solutions (or any of its subsidiaries) immediately following the Effective
Time shall, to the extent permitted by law and applicable tax qualification
requirements, and subject to any generally applicable break in service or
similar rule, receive credit for all purposes, including without limitation, for
eligibility to participate and vesting under 724 Solutions Plans for years of
service with Ezlogin prior to the Effective Time. If option (b) or (c) is
elected and subject to the approval of any insurance carrier and to the extent
consistent with law and applicable tax qualification requirements, 724 Solutions
shall then cause any and all pre-existing condition (or actively-at-work or
similar) limitations, eligibility waiting periods and evidence of insurability
requirements under any group health plans to be waived with respect to such
Ezlogin Participants and their eligible dependents and shall provide them with
credit for any co-payments, deductibles, and offsets (or similar payments) prior
to the Effective Time for purposes of satisfying any applicable deductible,
out-of-pocket, or similar requirements under any 724 Solutions Plans in which
they are eligible to participate after the Effective Time. Provided, however,
that Ezlogin (or its successor entity) or the applicable insurance carrier shall
make available a HIPAA Certificate evidencing prior coverage under the
corresponding Ezlogin Welfare Plan. Notwithstanding any of the foregoing to the
contrary, none of the provisions contained herein shall operate to duplicate any
benefit provided to any Ezlogin Participant or the funding of any such benefit.
Further and in no way in limitation of the foregoing, 724 Solutions and its
subsidiaries shall provide benefit programs to employees of Ezlogin that are
subject to the laws in France that comply with the rules, regulations, and laws
of that country. Nothing in this Section 5.19 shall be construed to entitle any
employee to continue his or her employment for any period of time, nor to
interfere with the rights of 724 Solutions or Ezlogin to discharge or discipline
any employee, to change the terms of any employee's employment, or to amend or
terminate employee benefit plans or programs at any time (subject to
Section 5.10).
34
5.20 ISSUANCE OF RESTRICTED SECURITIES. In the event, and only in the
event, 724 Solutions shall not have received a favorable determination in the
Fairness Hearing and a Permit covering all of the shares of 724 Solutions Common
Stock to be issued in the Merger such that the issuance qualifies for exemption
under the 3(a)(10) Exemption:
(a) SHAREHOLDERS' CONSENT.
(i) Ezlogin shall immediately after the date of 724 Solutions'
receipt of an unfavorable determination in the Fairness Hearing take all
action necessary in accordance with California Law and its Articles of
Incorporation and Bylaws to call, give notice of, convene and hold the
Ezlogin Shareholders Meeting or, if requested by 724 Solutions, to secure
the written consent of its Shareholders as soon as possible, but in no
event later than five (5) days, after the date of such unfavorable
determination in the Fairness Hearing. Ezlogin shall consult with 724
Solutions regarding the date of the Ezlogin Shareholders Meeting and
shall not postpone or adjourn (other than for the absence of a quorum)
the Ezlogin Shareholders Meeting without the consent of 724 Solutions.
Ezlogin shall use its reasonable best efforts to solicit from
Shareholders of Ezlogin proxies or consents in favor of the Merger and
shall take all other action necessary or advisable to secure the vote or
consent of Shareholders required to effect the Merger.
(ii) Without limiting the generality of the foregoing, immediately
after 724 Solutions' receipt of an unfavorable determination in the
Fairness Hearing, Ezlogin, in consultation with 724 Solutions, will
prepare an Information Statement in compliance with the requirements
under the California Corporations Code and Rule 506 under the Securities
Act (the "Rule 506 Information Statement"), which shall also include an
offering circular prepared by 724 Solutions, which shall comply as to
form and substance in all material respects with the applicable
provisions of the Securities Act, the Blue Sky Laws and all rules and
regulations promulgated thereunder (the "Offering Circular," and,
collectively with the Rule 506 Information Statement, the "Rule 506
Documents") to be used in connection with obtaining the approval by the
Shareholders of this Agreement. Ezlogin shall not distribute the
Rule 506 Documents without 724 Solutions' approval; provided, that 724
Solutions shall in no way be responsible for any of the content of the
Rule 506 Documents except for the Offering Circular and content in the
Rule 506 Information Statement as it pertains to and is supplied by 724
Solutions. Each of Ezlogin and 724 Solutions shall ensure that the
Rule 506 Documents do not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading with respect to Ezlogin or 724
Solutions, as the case may be. For these purposes, Ezlogin, may in
consultation with 724 Solutions, amend or supplement the Fairness Hearing
Information Statement, to the extent necessary, to incorporate all
information and disclosures required by Rule 506 promulgated under the
Securities Act. Whenever either of Ezlogin or 724 Solutions, as the case
may be, obtains any Knowledge of any event that should be set forth in an
amendment or a supplement to the Rule 506 Documents or 724 Solutions
disclosure documents, Ezlogin or 724 Solutions, as the case may be, will
promptly inform 724 Solutions or Ezlogin, as the case may be, and will
cooperate in mailing to the Shareholders and Optionholders as requested
by 724 Solutions such amendment or supplement.
(iii) Ezlogin, acting through its Board of Directors, shall, in
accordance with all applicable legal requirements and Ezlogin's charter
and bylaws:
a. cause the Rule 506 Information Statement, the Offering
Circular, and any other disclosure documents deemed appropriate by
724 Solutions to be mailed to the Shareholders and Optionholders of
Ezlogin promptly upon completion thereof and duly call, give notice
of, convene and hold as soon as practicable a meeting (or, if
requested by 724 Solutions, solicit an action by written consent in
lieu thereof) of such Shareholders for the purpose of voting to
approve and adopt this Agreement (and the 280G Payments, to the
extent applicable), to the extent required in accordance with legal
requirements, and use its best efforts to obtain such Shareholder
approval;
b. recommend approval and adoption of this Agreement (and the
280G Payments, to the extent applicable) and the other transaction
agreements to which Ezlogin is a party by the
35
Shareholders of Ezlogin, and include in the Rule 506 Information
Statement such recommendation, and take all lawful action to solicit
such approval; and
c. to the extent that the Merger and the transactions
contemplated by this Agreement result in the acceleration of vesting
of stock options and restricted stock awards with respect to
Ezlogin's stock which may constitute 280G Payments, Ezlogin shall
include in the disclosure documents to be mailed to the Shareholders
pursuant to subsection (a) above, a golden parachute disclosure
(which shall be subject to the approval of 724 Solutions, not to be
unreasonably withheld), for the purpose of soliciting the vote of the
Shareholders (or, if requested by 724 Solutions, an action by written
consent in lieu thereof) to approve the 280G Payments such that they
shall not constitute "parachute payments" for purposes of
Sections 280G and 4999 of the Code, by such vote as is required by
the Code and any other applicable legal requirements, and Ezlogin
shall use its best efforts to obtain such Shareholder approval.
724 Solutions may at its discretion request Ezlogin to pursue either a
Shareholder meeting or a solicitation of written consents, and 724 Solutions'
requesting of either such method shall not preclude a request for the other.
(iv) The timing and procedures of such meeting (or consent
solicitation) shall be subject to the reasonable approval of 724
Solutions and, if applicable, shall be completed as promptly as
practicable after the issuance of the unfavorable determination in the
Fairness Hearing.
(b) REGISTRATION RIGHTS AGREEMENT. 724 Solutions and each Ezlogin
Shareholder shall execute and deliver a Registration Rights and Investment
Representations Agreement in the form of Exhibit D attached hereto
("Registration Rights Agreement").
5.21 AMENDMENT OF BONUS SHARE AGREEMENTS. Ezlogin shall, on or prior to
Closing, use its reasonable best efforts to enter into an amendment to each
agreement to which Ezlogin is a party and which provides for the payment of any
Bonus Shares to any employee, consultant or other third party (the "Bonus Share
Agreements") with the other parties thereto to allow for the payment of, at the
option of 724 Solutions, (a) 724 Solutions Common Stock, as adjusted for the
Exchange Ratio, or (b) cash having a value equal to the number of shares of
Ezlogin Common Stock otherwise payable thereunder multiplied by the 724
Solutions Stock Price, in substitution for such shares. The Bonus Share
Agreements shall also be amended to provide that such employees, consultants or
other third parties will enter into such agreements and deliver reasonable
investment representations, to the extent required by 724 Solutions, in
connection with the issuance of the 724 Solutions Common Stock under such
amended Bonus Share Agreements.
5.22 OTHER ACTIONS. Ezlogin shall use its reasonable best efforts to cause
each of Xxxxxxx Xxxxxxx and Xxxxx Xxxxxxxx to execute and deliver an Employee
Inventions and Proprietary Assignment Agreement with Ezlogin, in Ezlogin's
standard form.
36
ARTICLE VI
CONDITIONS TO THE MERGER
6.1 CONDITIONS TO OBLIGATIONS OF EACH PARTY TO EFFECT THE MERGER. The
respective obligations of each party to this Agreement to consummate and effect
this Agreement and the transactions contemplated hereby shall be subject to the
satisfaction at or prior to the Effective Time of each of the following
conditions, any of which may be waived, in writing, by agreement of 724
Solutions and Ezlogin:
(a) SHAREHOLDER APPROVAL. This Agreement and the Merger shall have been
approved and adopted by the requisite vote of the Ezlogin Shareholders and,
to the extent applicable, the Ezlogin Shareholders shall have approved the
280G Payments such that they shall not constitute "parachute payments" for
purposes of Sections 280G and 4999 of the Code, by such vote as is required
by the Code and any other applicable legal requirements.
(b) NO INJUNCTIONS OR RESTRAINTS; ILLEGALITY. No temporary restraining
order, preliminary or permanent injunction or other order issued by any
court of competent jurisdiction or other legal or regulatory restraint or
prohibition preventing the consummation of the Merger shall be in effect,
nor shall any proceeding brought by an administrative agency or commission
or other governmental authority or instrumentality, domestic or foreign,
seeking any of the foregoing be pending; nor shall there be any action
taken, or any statute, rule, regulation or order enacted, entered, enforced
or deemed applicable to the Merger, that makes the consummation of the
Merger illegal. In the event an injunction or other order shall have been
issued, each party agrees to use its reasonable efforts to have such
injunction or other order lifted.
(c) GOVERNMENTAL APPROVAL. 724 Solutions and Ezlogin shall have timely
obtained from each Governmental Entity all approvals, waivers and consents,
if any, necessary for consummation of or in connection with the Merger and
the several transactions contemplated hereby, including such approvals,
waivers and consents as may be required under the Securities Act, under
state Blue Sky laws, Canadian securities laws and stock exchange listing
requirements.
(d) ESCROW AGREEMENT. 724 Solutions, Ezlogin, Escrow Agent and the
Shareholders' Agent (as defined in Article VIII hereto) shall have entered
into the Escrow Agreement.
6.2 ADDITIONAL CONDITIONS TO OBLIGATIONS OF EZLOGIN. The obligations of
Ezlogin to consummate and effect this Agreement and the transactions
contemplated hereby shall be subject to the satisfaction at or prior to the
Effective Time of each of the following conditions, any of which may be waived,
in writing, by Ezlogin:
(a) REPRESENTATIONS, WARRANTIES AND COVENANTS. (i) The representations
and warranties of 724 Solutions in this Agreement shall be true and correct
in all respects as of the Effective Time (or, to the extent such
representations and warranties speak as of an earlier date, they shall be
true in all respects as of such earlier date), except (x) as otherwise
contemplated by this Agreement and (y) for such failures to be true and
correct which in the aggregate have not had and would not reasonably be
expected to have a Material Adverse Effect on 724 Solutions without giving
regard to materiality qualifiers in any individual representation, and
(ii) 724 Solutions shall have performed and complied in all material
respects with all covenants, obligations and conditions of this Agreement
required to be performed and complied with by it as of the Effective Time.
(b) CERTIFICATE OF 724 SOLUTIONS. Ezlogin shall have been provided with
a certificate executed on behalf of 724 Solutions by an authorized officer
to the effect set forth in Section 6.2(a).
(c) TAX OPINION. Ezlogin shall have received a written opinion of
Ezlogin's legal counsel in form and substance reasonably satisfactory to
Ezlogin, and dated on or about the Closing Date, to the effect that (i) the
Merger will constitute a reorganization within the meaning of
Section 368(a) of the Code, and (ii) each of Ezlogin, 724 Solutions and
Merger Sub shall be a party to the reorganization within the meaning of
Section 368(b) of the Code. The parties to this Agreement agree to make such
reasonable representations as requested by the legal counsel of Ezlogin for
the purpose of rendering such opinion. In connection with the above, but
without limiting the foregoing, 724 Solutions shall deliver to Ezlogin and
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx a certificate, dated as of the Effective
Time, certifying that, to
37
724 Solutions' Knowledge neither 724 Solutions nor any of its Affiliates has
taken or agreed to take any action, nor does 724 Solutions have Knowledge of
any fact or circumstance relating to 724 Solutions, that would prevent
(i) the Merger from qualifying as a reorganization within the meaning of
Section 368(a) of the Code, or (ii) the exchange of shares of Ezlogin
Capital Stock for shares of 724 Solutions Common Stock from meeting the
requirements of Treasury Regulation Section 1.367(a)-3(c)(i).
(d) LEGAL OPINION. Ezlogin shall have received legal opinions from 724
Solutions' domestic legal counsel, Xxxxxxxx & Xxxxxxxx LLP and 724
Solutions' Canadian counsel, Xxxxxx Xxxxxxx, in form and substance
reasonably acceptable to Ezlogin, but which shall nevertheless contain
opinions as to the enforceability of this Agreement, the valid issuance of
the 724 Solutions Common Stock to be issued in the Merger in accordance with
all applicable securities laws, and other customary opinions given by the
purchaser's counsel in acquisitions of this type.
(e) EXCHANGE LISTING. Prior to the Effective Time, 724 Solutions shall
have filed with the Nasdaq Stock Market a Notification Form For Listing of
Additional Shares with respect to the 724 Solutions Common Stock to be
issued pursuant to the Merger (including shares to be issued under 724
Solutions' 2000 Stock Option Plan pursuant to Section 5.11 hereof).
(f) REGISTRATION RIGHTS AGREEMENT. In the event 724 Solutions shall not
have received a favorable determination in the Fairness Hearing and a Permit
covering all of the shares of 724 Solutions Common Stock to be issued in the
Merger such that the issuance qualifies for exemption under the 3(a)(10)
Exemption, 724 Solutions shall have executed and delivered to the
Shareholders the Registration Rights Agreement.
6.3 ADDITIONAL CONDITIONS TO THE OBLIGATIONS OF 724 SOLUTIONS. The
obligations of 724 Solutions to consummate and effect this Agreement and the
transactions contemplated hereby shall be subject to the satisfaction at or
prior to the Effective Time of each of the following conditions, any of which
may be waived, in writing, by 724 Solutions:
(a) REPRESENTATIONS, WARRANTIES AND COVENANTS. Except as disclosed in
the Ezlogin Disclosure Schedule dated the date of the Original Merger
Agreement (i) the representations and warranties of Ezlogin in this
Agreement shall be true and correct in all respects as of the Effective Time
(or, to the extent such representations and warranties speak as of an
earlier date, they shall be true in all respects as of such earlier date),
except (x) as otherwise contemplated by this Agreement and (y) for such
failures to be true and correct which in the aggregate have not had and
would not reasonably be expected to have a Material Adverse Effect on
Ezlogin without giving regard to materiality qualifiers in any individual
representation, and (ii) Ezlogin shall have performed and complied in all
material respects with all covenants, obligations and conditions of this
Agreement required to be performed and complied with by it as of the
Effective Time.
(b) CERTIFICATE OF EZLOGIN. 724 Solutions shall have been provided with
a certificate executed on behalf of Ezlogin by its President to the effect
set forth in Section 6.3(a).
(c) THIRD PARTY CONSENTS. 724 Solutions shall have been furnished with
evidence satisfactory to it of the consent or approval of those persons
whose consent or approval shall be required in connection with the Merger
under any contract listed or required to be listed on Schedule 2.31.
(d) INJUNCTIONS OR RESTRAINTS ON CONDUCT OF BUSINESS. No temporary
restraining order, preliminary or permanent injunction or other order issued
by any court of competent jurisdiction or other legal or regulatory
restraint provision limiting or restricting 724 Solutions' conduct or
operation of the business of Ezlogin following the Merger shall be in
effect, nor shall any proceeding brought by an administrative agency or
commission or other Governmental Entity, domestic or foreign, seeking the
foregoing be pending.
(e) LEGAL OPINION. 724 Solutions shall have received a legal opinion
from Ezlogin's legal counsel, Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx (which
opinion may be shared with another law firm reasonably acceptable to 724
Solutions), in form and substance reasonably acceptable to 724 Solutions,
but which shall nevertheless contain opinions as to the enforceability of
this Agreement, the capitalization of Ezlogin, the
38
valid issuance or grant, as the case may be, of all Ezlogin securities
(including Ezlogin Options) in accordance with all applicable securities
laws, and other customary opinions given by the target's counsel in
acquisitions of this type.
(f) NO MATERIAL ADVERSE CHANGES. Since the Ezlogin Balance Sheet Date,
there shall not have occurred any event, fact or circumstance that has had,
or reasonably could be anticipated to have, a Material Adverse Effect with
respect to Ezlogin.
(g) NO CASH DISTRIBUTIONS. Ezlogin shall not have made any material
cash distribution or any material compensation adjustments, except as
expressly permitted by this Agreement, since the Ezlogin Balance Sheet Date,
without the prior approval of 724 Solutions.
(h) TAX OPINION. 724 Solutions shall have received a written opinion of
724 Solutions' legal counsel in form and substance reasonably satisfactory
to 724 Solutions, and dated on or about the Closing Date, to the effect that
(i) the Merger will constitute a reorganization within the meaning of
Section 368(a) of the Code, and (ii) each of Ezlogin, 724 Solutions and
Merger Sub shall be a party to the reorganization within the meaning of
Section 368(b) of the Code. The parties to this Agreement agree to make such
reasonable representations as requested by the legal counsel of 724
Solutions for the purpose of rendering such opinion. In connection with the
above, but without limiting the foregoing, Ezlogin shall deliver to
724 Solutions and Xxxxxxxx & Xxxxxxxx LLP a certificate, dated as of the
Effective Time, certifying that, to Ezlogin's Knowledge neither Ezlogin nor
any of its Affiliates has taken or agreed to take any action, nor does
Ezlogin have Knowledge of any fact or circumstance relating to Ezlogin, that
would prevent (i) the Merger from qualifying as a reorganization within the
meaning of Section 368(a) of the Code, or (ii) the exchange of shares of
Ezlogin Capital Stock for shares of 724 Solutions Common Stock from meeting
the requirements of Treasury Regulation Section 1.367(a)-3(c)(i).
(i) FIRPTA CERTIFICATE. Ezlogin shall, prior to the Closing Date,
provide 724 Solutions with a properly executed FIRPTA Notification Letter,
substantially in the form of Exhibit H attached hereto, which states that
shares of capital stock of Ezlogin do not constitute "United States real
property interests" under Section 897(c) of the Code, for purposes of
satisfying 724 Solutions' obligations under Treasury Regulation
Section 1.1445-2(c)(3). In addition, simultaneously with delivery of such
Notification Letter, Ezlogin shall have provided to 724 Solutions, as agent
for Ezlogin, a form of notice to the Internal Revenue Service in accordance
with the requirements of Treasury Regulation Section 1.897-2(h)(2) and
substantially in the form of Exhibit I attached hereto along with written
authorization for 724 Solutions to deliver such notice form to the Internal
Revenue Service on behalf of Ezlogin upon the Closing of the Merger.
(j) RESIGNATION OF DIRECTORS AND OFFICERS. The directors and officers
of Ezlogin in office immediately prior to the Effective Time shall have
resigned as directors and officers, as applicable, of Ezlogin effective as
of the Effective Time.
(k) EZLOGIN OPTIONS AND EZLOGIN CONVERTIBLE SECURITIES. Unless 724
Solutions is assuming Ezlogin Options in connection with the Merger,
pursuant to Section 1.6(c), all outstanding Ezlogin Options shall have been
exercised or terminated. All Ezlogin Convertible Securities (excluding Bonus
Shares, to the extent not accrued or paid prior to the Effective Time) shall
have been converted.
(l) EMPLOYMENT AND NON-COMPETITION AGREEMENTS. Concurrently with the
execution of this Agreement, the Key Employees of Ezlogin set forth on
Schedule 5.15(a) shall have entered into Employment and Non-Competition
Agreements with Ezlogin and each Key Employee shall be employed by Ezlogin
as of the Effective Time and shall have not notified (whether formally or
informally) Ezlogin of such employee's intention to terminate his employment
with Ezlogin as of the Effective Time. Concurrently with the execution of
this Agreement, certain of the Other Employees, as set forth on
Schedule 5.15(b), shall have entered into Employment Agreements with
Ezlogin, and, on or prior to the Closing, certain of the Other Employees as
set forth on Schedule 5.15(b) shall have entered into an Employment
Agreement with Ezlogin and each such Other Employee shall be employed by
Ezlogin as of the Effective Time and shall have not notified (whether
formally or informally) Ezlogin of such employee's intention to terminate
his employment with Ezlogin as of the Effective Time; provided, that the
failure of one or more Other
39
Employees to enter into an Employment Agreement due to death, disability or
illness shall not prevent the satisfaction of this condition at the Closing.
(m) HOLDERS' AGREEMENTS. Each Shareholder and Optionholder shall have
delivered an Employee Holders' Agreement or a Non-Employee Shareholders'
Agreement, as provided in Section 5.2 hereof and all other documents
required to be delivered thereunder, including, without limitation,
evidence, reasonably satisfactory to 724 Solutions that (1) each Holder who
is not an individual shall have the authority and power to execute each
Transaction Agreement to which it is or is to become a party and the
individual executing Transaction Agreements has the authority to do so on
Holder's behalf, as the case may be; provided that the execution and
delivery of a Certificate of Trust by a Holder which is a trust, and an
Incumbency Certificate by a Holder which is a corporate entity or
partnership (in the forms attached as exhibits to the Holders' Agreements)
shall be deemed to satisfy this condition; but provided further, that
notwithstanding the above, in the event 724 Solutions has a reasonable
belief that such certificate is materially untrue or contains a material
misstatement of fact, 724 Solutions may demand additional reasonable
evidence from such Holder as to such authority; and (2) any lienholder over
shares of Ezlogin Capital Stock or Ezlogin Options shall have agreed to be
subject to the transfer restrictions and Unvested Share Repurchase Option
set forth in Section 5.2 hereof or the Holder shall have discharged any such
lien.
(n) CERTIFICATES OF GOOD STANDING. Ezlogin shall, prior to the Closing
Date, provide 724 Solutions a certificate from the Secretary of State of
California as to Ezlogin's good standing and payment of all applicable
taxes.
(o) ISSUANCE OF PARENT COMMON STOCK. Prior to the issuance of the 724
Solutions Common Stock in the Merger, either (i) 724 Solutions shall have
received a favorable determination in the Fairness Hearing and have been
issued a Permit covering all of the shares of 724 Solutions Common Stock to
be issued in the Merger such that the issuance qualifies for exemption under
the 3(a)(10) Exemption, or (ii) in the event 724 Solutions shall not have
received a favorable determination in the Fairness Hearing and a Permit
covering all of the shares of 724 Solutions Common Stock to be issued in the
Merger such that the issuance qualifies for exemption under the 3(a)(10)
Exemption:
(i) each Shareholder shall have executed and delivered to 724
Solutions a Registration Rights Agreement;
(ii) the Rule 506 Documents shall have been mailed to the
Shareholders of Ezlogin in accordance with Section 5.20(a); and
(iii) 724 Solutions shall reasonably be satisfied that there are no
more than 35 Shareholders who are not "accredited investors," and that
each Shareholder who is not an "accredited investor" shall, either alone
or through appropriate representation by a "purchaser representative" (as
such terms used in the Securities Act and the rules promulgated
thereunder), have such knowledge and experience in financial and business
matters that such Shareholder is capable of evaluating the merits and
risks of the prospective investment in the 724 Solutions Common Stock;
provided that the execution and delivery of the Registration Rights
Agreement with no exceptions to the representations and warranties and a
customary investor questionnaire, with reasonably acceptable answers
thereon, shall be deemed to satisfy this condition; but provided further,
that notwithstanding the above, in the event 724 Solutions has a
reasonable belief that any relevant representation or the questionnaire
is materially untrue or contains a material misstatement of fact, 724
Solutions may demand additional reasonable evidence from such Shareholder
as to such Shareholder's investor status.
(p) DISSENTERS. The holders of no more than 10% of the outstanding
shares of Ezlogin Capital Stock shall have elected to, or otherwise be
entitled to, exercise their rights to dissent from the Merger.
(q) SIDE LETTER. Jonqille Investment Limited shall have executed and
delivered the side letter to be entered into with 724 Solutions, in a form
reasonably acceptable to 724 Solutions.
40
ARTICLE VII
TERMINATION, AMENDMENT AND WAIVER
7.1 TERMINATION. At any time prior to the Effective Time, whether before or
after approval of the matters presented in connection with the Merger by the
Shareholders of Ezlogin, this Agreement may be terminated:
(a) By either Ezlogin or 724 Solutions, if the Closing has not occurred
on or prior to June 30, 2000, or such other date, if any, as 724 Solutions
and Ezlogin shall agree upon; PROVIDED, that the party seeking to terminate
this Agreement pursuant to this Section 7.1(a) shall not have breached in
any material respect its obligations under this Agreement;
(b) by the mutual written consent of 724 Solutions and Ezlogin;
(c) by 724 Solutions, if Ezlogin shall breach any material
representation, warranty, obligation or agreement hereunder and such breach
shall not have been cured within thirty (30) business days of receipt by
Ezlogin of written notice of such breach such that the conditions set forth
in Section 6.3(a) would not be satisfied, provided that the right to
terminate this Agreement by 724 Solutions under this Section 7.1(c) shall
not be available to 724 Solutions where 724 Solutions is at that time in
material breach of this Agreement.
(d) by Ezlogin, if 724 Solutions shall breach any material
representation, warranty, obligation or agreement hereunder and such breach
shall not have been cured within thirty (30) days following receipt by 724
Solutions of written notice of such breach such that the conditions set
forth in Section 6.2(a) would not be satisfied provided that the right to
terminate this Agreement by Ezlogin under this Section 7.1(d) shall not be
available to Ezlogin where Ezlogin is at that time in material breach of
this Agreement,
7.2 EFFECT OF TERMINATION. In the event of termination of this Agreement as
provided in Section 7.1, this Agreement shall forthwith become void and there
shall be no liability or obligation on the part of 724 Solutions or Ezlogin or
their respective officers, directors, shareholders or affiliates, except to the
extent that such termination results from the intentional, willful or negligent
breach by a party hereto of any of its representations or warranties, or any
breach of covenants, set forth in this Agreement; provided that the provisions
of Section 5.3 (Access to Information; Confidentiality), Section 7.3 (Expenses)
and this Section 7.2 and of Article IX shall remain in full force and effect and
survive any termination of this Agreement.
7.3 EXPENSES. Except as otherwise provided herein, whether or not the
Merger is consummated, all costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby (including, without
limitation, the fees and expenses of its advisers, accountants and legal
counsel) shall be paid by the party incurring such expense.
7.4 AMENDMENT. The boards of directors of the parties hereto may cause this
Agreement to be amended at any time by execution of an instrument in writing
signed on behalf of each of the parties hereto; provided that an amendment made
subsequent to adoption of this Agreement by the Shareholders of Ezlogin shall
not (i) alter or change the amount or kind of consideration to be received on
conversion of the Ezlogin Capital Stock, (ii) alter or change any term of the
Articles of Incorporation of the Surviving Corporation to be effected by the
Merger, or (iii) alter or change any of the terms and conditions of this
Agreement if such alteration or change would materially adversely affect the
holders of Ezlogin Capital Stock.
7.5 EXTENSION; WAIVER. At any time prior to the Effective Time any party
hereto may, to the extent legally allowed, (i) extend the time for the
performance of any of the obligations or other acts of the other parties hereto,
(ii) waive any inaccuracies in the representations and warranties made to such
party contained herein or in any document delivered pursuant hereto, and
(iii) waive compliance with any of the agreements or conditions for the benefit
of such party contained herein. Any agreement on the part of a party hereto to
any such extension or waiver shall be valid only if set forth in an instrument
in writing signed on behalf of such party.
41
ARTICLE VIII
ESCROW AND INDEMNIFICATION
8.1 ESCROW FUND AND SUBJECT OPTIONS.
(a) As soon as reasonably practicable after the Effective Time, the Escrow
Shares shall be registered in the name of, and be deposited with, U.S. Bank
Trust, N.A. (or another institution selected by 724 Solutions with the
reasonable consent of Ezlogin) as escrow agent (the "Escrow Agent"), such
deposit (together with interest and other income thereon) to constitute the
Escrow Fund and to be governed by the terms set forth herein and in the Escrow
Agreement attached hereto as Exhibit E. The number of Escrow Shares beneficially
owned by each Shareholder will be set forth on Schedule 1 to the Escrow
Agreement. The Escrow Fund shall be available to compensate 724 Solutions
pursuant to the indemnification obligations of the Shareholders of Ezlogin.
(b) If, pursuant to Section 1.6(c), 724 Solutions assumes the Ezlogin Option
Plan in connection with the Merger, the Subject Options shall be held by 724
Solutions and the Subject Shares shall be held in the Escrow Fund as security
against the Optionholders' indemnity obligations set forth in this Article VIII
and shall be available to compensate 724 Solutions for certain damages, subject
to and in accordance with the provisions of this Article VIII and the Employee
Holders' Agreements.
8.2 INDEMNIFICATION AND SURVIVAL.
(a) Ezlogin's representations and warranties set forth in Article II or in
any instrument delivered pursuant to this Agreement will survive until the first
anniversary of the Closing, provided, however that Ezlogin's representations and
warranties set forth in Sections 2.1, 2.2 and 2.3 shall survive the Closing and
continue into perpetuity. All of 724 Solutions' or Merger Sub's representations
and warranties contained herein or in any instrument delivered pursuant hereto
shall terminate at the Effective Time.
(b) Subject to the limitations set forth in this Article VIII, the Holders
will indemnify and hold harmless 724 Solutions and its officers, directors,
agents and employees, and each person, if any, who controls or may control 724
Solutions within the meaning of the Securities Act (hereinafter referred to
individually as a "724 Solutions Indemnified Person" and collectively as "724
Solutions Indemnified Persons") from and against any and all losses, costs,
damages, liabilities and expenses arising from claims, demands, actions, causes
of action, including, without limitation, reasonable legal fees, net of any
recoveries by 724 Solutions under existing insurance policies or indemnities
from third parties (collectively, "724 Solutions Damages") arising out of any
misrepresentation or breach of or default in connection with any of the
representations, warranties, covenants and agreements given or made by Ezlogin
in this Agreement, the Ezlogin Disclosure Schedules or any exhibit or schedule
to this Agreement; provided, that 724 Solutions Damages arising out of any
breach of Ezlogin's representations and warranties in Section 2.11 hereof shall
not include losses in the nature of incidental or consequential damages, lost
profits, diminution in value, damage to reputation or goodwill or other items of
a speculative nature ("Consequential Damages"); and provided, further, that 724
Solutions Damages arising out of any other breach of Ezlogin's representations
and warranties herein shall not include Consequential Damages except for losses
in the nature of lost profits based on 724 Solution's business history
(including its operations, customer base and income streams as of the Effective
Time). It is the intent of the parties that all indemnification obligations of
the Holders set forth in this Agreement shall apply without regard to whether or
not (i) the Holders are negligent or otherwise at fault in any respect with
regard to the existence or occurrence of any of the matters covered by any such
indemnification obligation, and (ii) the Holders otherwise caused or created, or
are claimed to have caused or created, the existence or occurrence of any of the
matters covered by any such indemnification obligation, whether through their
own acts or omissions or otherwise.
(c) Notwithstanding anything herein to the contrary, the Holders' total
indemnification obligations pursuant to this Article VIII shall not exceed 10%
of the Merger Consideration (the "Indemnification Cap") valued at the 724
Solutions Stock Price, and no Holder shall have liability for any 724 Solutions
Damages unless and until Officer's Certificates (as defined in Section 8.5
below) identifying aggregate 724 Solutions Damages in excess of $375,000 (the
"Indemnification Threshold") have been received by the Escrow Agent, in which
case 724 Solutions shall be entitled to recover all 724 Solutions Damages;
provided that all 724 Solutions Damages relating to the representations and
warranties set forth in Sections 2.2 and 2.38 (collectively, the "Excluded
Damages") shall not be subject to either the Indemnification Cap or the
Indemnification Threshold.
42
(d) The Escrow Fund and, if applicable, the Subject Options shall be the
exclusive security for this indemnity obligation of the Holders subject to the
limitations in this Agreement. The exclusive remedy for 724 Solutions against
any Holder in connection with this indemnity obligation shall be to make a claim
against the Escrow (and, if applicable, a corresponding termination of Subject
Options) or such Shareholder or Optionholder directly, in accordance with and
pursuant to this Article VIII; provided, that, subject to Section 8.2(e) below,
724 Solutions shall not proceed against the Optionholders directly for the
recovery of Excluded Damages (but shall be able to proceed against the
Optionholders' interests in the Escrow Fund and the Subject Options) and
provided, further, that 724 Solutions shall not proceed against the Shareholders
directly for Excluded Damages until the earlier of the expiration of the Escrow
Period and the distribution of all amounts in the Escrow Fund to 724 Solutions
and, if applicable, the cancellation or release of all Subject Options by 724
Solutions in accordance with the Escrow Agreement and this Article VIII. After
the earlier of (i) the expiration of the Escrow Period; or (ii) the payment of
all amounts in the Escrow Fund to 724 Solutions and the cancellation of all
Subject Options by 724 Solutions, subject to Section 8.2(e) below, the
Shareholders' liability under this Article VIII shall be several and not joint
and limited to the same proportion of the 724 Solutions Damages as such
Shareholder's share of the shares of 724 Solutions Common Stock issued to such
Shareholder in the Merger bears to all shares of 724 Solutions Common Stock
issued to all Shareholders in the Merger. Subject to Section 8.2(e) below, in no
event shall 724 Solutions proceed directly against any Optionholder.
(e) Notwithstanding anything herein to the contrary, nothing in this
Agreement shall limit the liability (i) of Ezlogin or 724 Solutions for any
breach of any representation, warranty or covenant if the Merger does not close;
or (ii) of any Holders in connection with any breach by such Holder (in such
Holder's capacity as such) of any Transaction Agreement executed by such Holder,
including the Voting Agreement, the Registration Rights Agreement and the
applicable Holders' Agreement.
8.3 PAYMENT FOR 724 SOLUTIONS DAMAGES. Upon 724 Solutions' delivery of an
Officer's Certificate or Certificates identifying 724 Solutions Damages to the
Escrow Agent and Shareholders' Agent as provided in Section 8.5 below and the
determination that such amount is payable pursuant to this Article VIII, 724
Solutions shall receive Escrow Shares from the Escrow Fund and shall terminate
Subject Options equal in value to the full amount of 724 Solutions Damages (with
such Escrow Shares and Subject Options being valued pursuant to Section 8.5(b)
below); provided, however, that in no event shall 724 Solutions receive more
than the number of shares of 724 Solutions Common Stock originally placed in the
Escrow Fund or added to the Escrow Fund upon the exercise of any Subject
Options, or terminate more than the original number of Subject Options, if any.
Any Escrow Shares delivered to 724 Solutions from the Escrow Fund and any
Subject Options terminated by 724 Solutions in accordance herewith shall be
deducted pro-rata from each Shareholder and Optionholder, as the case may be.
(b) Payment of 724 Solutions Damages shall be taken ratably from Escrow
Shares and, if 724 Solutions assumes the Ezlogin Stock Option Plan, the
cancellation of Subject Options. For each payment of 724 Solutions Damages
satisfied by canceling Subject Options, each Optionholder shall have his pro
rata share of Subject Options cancelled with such Optionholder's vested and
unvested Subject Options being cancelled ratably (including with respect to
vesting dates). If applicable, 724 Solutions shall receive Escrow Shares ratably
from the Holders' Escrow Shares not subject to an Unvested Share Repurchase
Option and from Escrow Shares subject to an Unvested Share Repurchase Option
(including with respect to lapsing dates).
8.4 ESCROW PERIOD.
(a) The Escrow shall terminate on the one year anniversary of the Effective
Time (the "Escrow Period"); provided, however, that a portion of the Escrow
Shares which is necessary to satisfy any unsatisfied claims specified in any
Officer's Certificate theretofore delivered to the Escrow Agent prior to
termination of the Escrow Period with respect to facts and circumstances
existing prior to expiration of the Escrow Period, less a number of Escrow
Shares equal to the number of Subject Options that remain subject to
cancellation pursuant to the remainder of this clause (a), shall remain in the
Escrow Fund until such claims have been resolved. 724 Solutions shall deliver to
the Escrow Agent a certificate specifying the Effective Time. 724 Solutions
shall release the remaining Subject Options upon the expiration of the Escrow
Period; provided, however, that a portion of the Subject Options which is
necessary to satisfy the Optionholders' pro rata portion of any
43
unsatisfied claims specified in any Officer's Certificate theretofore delivered
to the Escrow Agent and the Shareholders' Agent prior to termination of the
Escrow Period with respect to facts and circumstances existing prior to
expiration of the Escrow Period shall remain subject to cancellation pursuant to
the provisions of this Article VIII until such claims have been resolved.
(b) Any amounts remaining in the Escrow Fund after the Escrow Period that
are not in dispute relating to the indemnification obligations of the
Shareholders arising under this Agreement shall be promptly distributed to the
Shareholders (including Shareholders of Subject Shares), and any Subject Options
then outstanding that are not in dispute relating to the indemnification
obligations of the Optionholders arising under this Agreement shall be promptly
released to the Optionholders. As soon as all such disputed claims have been
resolved, the Escrow Agent shall deliver to the Shareholders their pro-rata
share of all remaining amounts in the Escrow Fund and not required to satisfy
such claims and expenses. Each Shareholder shall receive that number of Escrow
Shares equivalent to such Shareholder's pro-rata percentage interest in the
Escrow Fund as set forth in Schedule 1 attached to the Escrow Agreement. As soon
as all such disputed claims have been resolved, 724 Solutions shall release to
each Optionholder its Subject Options not otherwise terminated in accordance
herewith.
8.5 CLAIMS UPON ESCROW FUND.
(a) In order to receive Escrow Shares or cancel Subject Options as
compensation for 724 Solutions Damages, 724 Solutions must first deliver to the
Escrow Agent and the Shareholders' Agent, on or before the last day of the
Escrow Period, a certificate signed by any officer of 724 Solutions (an
"Officer's Certificate"), stating that 724 Solutions Damages exist and
specifying in reasonable detail the individual items of such 724 Solutions
Damages included in the amount so stated, the date each such item was paid, or
properly accrued in accordance with U.S. GAAP, or arose, and the nature of the
misrepresentation, breach of warranty or claim to which such item is related and
the specific representation, warranty or covenant alleged to have been the
subject of such misrepresentation, breach or default. The Officer's Certificate
shall also specify the amount of Escrow Shares to be delivered to 724 Solutions
and the number of Subject Options, if any, to be cancelled if the claim
represented in the Officer's Certificate were to be paid. Upon receipt of the
Officer's Certificate, (i) the Escrow Agent shall, subject to the provisions of
Sections 8.6 and 8.7 below, deliver to 724 Solutions out of the Escrow Fund, as
promptly as practicable, 724 Solutions Common Stock or other assets held in the
Escrow Fund having a value equal to the portion of such 724 Solutions Damages
attributable to the indemnity obligations of the Shareholders hereunder; and
(ii) 724 Solutions shall, subject to the provisions of Sections 8.6 and 8.7
below, cancel Subject Options equal to the portion of such 724 Solutions Damages
attributable to the indemnity obligations of the Optionholders hereunder.
(b) For the purpose of compensating 724 Solutions for its 724 Solutions
Damages pursuant to this Agreement, the Escrow Shares and, if applicable, the
Subject Options shall be valued at the 724 Solutions Stock Price.
(c) If the value to be distributed to 724 Solutions with respect to each
Shareholder or Optionholder is not evenly divisible by the 724 Solutions Stock
Price, the number of Escrow Shares to be delivered to 724 Solutions and the
number of Subject Options to be cancelled will be rounded down to the next
highest number of shares or options. The fractional interests remaining will be
aggregated with future claims against the Escrow Fund and Subject Options, and
will be delivered to 724 Solutions or cancelled when any fractional shares in
the aggregate are equal to a whole number of shares or options. Upon the release
of the Escrow Fund, 724 Solutions may elect to distribute the fractional
interests to the Shareholders and Optionholders or to monetize such fractional
interests in exchange for a pro rata payment of the 724 Solutions Stock Price,
to be paid as provided with respect to fractional shares in the manner set for
in Section 1.6(e).
8.6 OBJECTIONS TO CLAIMS. At the time of delivery of any Officer's
Certificate to the Escrow Agent, a duplicate copy of such Officer's Certificate
shall be delivered to the Shareholders' Agent and for a period of forty-five
(45) days after such delivery to the Escrow Agent and the Shareholders' Agent of
such Officer's Certificate, (i) the Escrow Agent shall make no delivery of 724
Solutions Common Stock or other property pursuant to Section 8.5 hereof unless
the Escrow Agent shall have received written authorization from the
Shareholders' Agent to make such delivery; and (ii) 724 Solutions shall not
terminate Subject Options pursuant
44
to Section 8.5 hereof unless 724 Solutions shall have received written
authorization from the Shareholders' Agent to cancel such Subject Options. After
the expiration of such forty-five (45) day period, (i) the Escrow Agent shall
make delivery of the 724 Solutions Common Stock or other property in the Escrow
Fund, in accordance with Section 8.5 hereof; and (ii) 724 Solutions shall
terminate Subject Options, in accordance with Section 8.5 hereof, provided that
no such payment, delivery or termination may be made if the Shareholders' Agent
shall object in a written statement to the claim made in the Officer's
Certificate, and such statement shall have been delivered to the Escrow Agent
and to 724 Solutions prior to the expiration of such forty-five (45) day period.
8.7 RESOLUTION OF CONFLICTS; ARBITRATION.
(a) In case the Shareholders' Agent shall so object in writing to any claim
or claims by 724 Solutions made in any Officer's Certificate, 724 Solutions
shall have forty-five (45) days after receipt by the Escrow Agent and 724
Solutions of an objection by the Shareholders' Agent to respond in a written
statement to the objection of the Shareholders' Agent. If after such forty-five
(45) day period there remains a dispute as to any claims, the Shareholders'
Agent and 724 Solutions shall attempt in good faith for sixty (60) days to agree
upon the rights of the respective parties with respect to each of such claims.
If the Shareholders' Agent and 724 Solutions should so agree, a memorandum
setting forth such agreement shall be prepared and signed by both parties and
shall be furnished to the Escrow Agent. The Escrow Agent shall be entitled to
rely on any such memorandum and shall distribute the 724 Solutions Common Stock
or other property from the Escrow Fund in accordance with the terms thereof.
(b) If no such agreement can be reached after good faith negotiation, either
724 Solutions or the Shareholders' Agent may, by written notice to the other,
demand arbitration of the matter unless the amount of the damage or loss is at
issue in pending litigation with a third party, in which event arbitration shall
not be commenced until such amount is ascertained or both parties agree to
arbitration; and in either such event the matter shall be settled by arbitration
conducted by three arbitrators. Within fifteen (15) days after such written
notice is sent, 724 Solutions and the Shareholders' Agent shall each select one
arbitrator, and the two arbitrators so selected shall select a third arbitrator.
The decision of the arbitrators as to the validity and amount of any claim in
such Officer's Certificate shall be binding and conclusive upon the parties to
this Agreement, and notwithstanding anything in Section 8.6 hereof, the Escrow
Agent shall be entitled to act in accordance with such decision and make or
withhold payments out of the Escrow Fund and 724 Solutions shall be entitled to
terminate Subject Options, in accordance therewith.
(c) Judgment upon any award rendered by the arbitrators may be entered in
any court having jurisdiction. Any such arbitration shall be held in Santa Xxxxx
County, California under the commercial rules then in effect of the American
Arbitration Association. For purposes of this Section 8.7(c), in any arbitration
hereunder in which any claim or the amount thereof stated in the Officer's
Certificate is at issue, 724 Solutions shall be deemed to be the Non-Prevailing
Party unless the arbitrators award 724 Solutions more than one-half ( 1/2) of
the amount in dispute, plus any amounts not in dispute; otherwise, the
Shareholders and Optionholders for whom shares of 724 Solutions Common Stock
otherwise issuable to them have been deposited in the Escrow Fund, or who hold
Subject Options, as applicable, shall be deemed to be the Non-Prevailing Party.
The Non-Prevailing Party to an arbitration shall pay its own expenses, the fees
of each arbitrator, the administrative fee of the American Arbitration
Association, and the expenses, including without limitation, attorneys' fees and
costs, reasonably incurred by the other party to the arbitration. If the
Shareholders and the Optionholders are deemed to be the Non-Prevailing Party,
such expenses and fees shall be paid first, from the Escrow Shares and the
cancellation of Subject Options, and second, by 724 Solutions, provided that the
Shareholders and Optionholders shall be and remain liable to 724 Solutions for
the amount that the total of all such fees and expenses exceeds the total Escrow
Shares and Subject Options, valued at the 724 Solutions Stock Price (the "Excess
Fees"), and the Shareholders and Optionholders, severally, hereby indemnify and
hold harmless the 724 Solutions Indemnified Persons from and against all such
Excess Fees.
8.8 SHAREHOLDERS' AGENT.
(a) By executing a Holders' Agreement, voting to approve the Merger or
accepting any Merger Consideration, each Shareholder and each Optionholder
appoints Xxxxxxxxx Xxxxxxxxx as agent ("Shareholders'
45
Agent") for and on behalf of such Holder to give and receive notices and
communications, to authorize delivery to 724 Solutions of the 724 Solutions
Common Stock or other property from the Escrow Fund and, if applicable, the
cancellation of Subject Options, in satisfaction of claims by 724 Solutions, to
object to such deliveries and cancellations, to agree to, negotiate, enter into
settlements and compromises of, and demand arbitration and comply with orders of
courts and awards of arbitrators with respect to such claims, and to take all
actions necessary or appropriate in the judgment of the Shareholders' Agent for
the accomplishment of the foregoing. Such agency may be changed by the holders
of a majority in interest of the Escrow Fund and the Subject Options from time
to time upon not less than ten (10) days' prior written notice to 724 Solutions.
No bond shall be required of the Shareholders' Agent, and the Shareholders'
Agent shall receive no compensation for his services. Notices or communications
to or from the Shareholders' Agent shall constitute notice to or from each of
the Ezlogin Shareholders and Optionholders.
(b) The Shareholders' Agent shall not be liable for any act done or omitted
hereunder as Shareholders' Agent while acting in good faith and in the exercise
of reasonable judgment, and any act done or omitted pursuant to the advice of
counsel shall be conclusive evidence of such good faith. The Ezlogin
Shareholders and Optionholders shall severally indemnify the Shareholders' Agent
and hold him harmless against any loss, liability or expense incurred without
gross negligence or bad faith on the part of the Shareholders' Agent and arising
out of or in connection with the acceptance or administration of his duties
hereunder.
(c) The Shareholders' Agent shall have reasonable access to information
about Ezlogin, the Surviving Corporation and 724 Solutions and the reasonable
assistance of Ezlogin's, the Surviving Corporation's and 724 Solutions'
respective officers and employees for purposes of performing its duties and
exercising its rights hereunder, provided that the Shareholders' Agent shall
treat confidentially and not disclose any nonpublic information from or about
Ezlogin, the Surviving Corporation or 724 Solutions to anyone (except on a need
to know basis to individuals who agree to treat such information
confidentially).
(d) Xxxxxxxxx Xxxxxxxxx hereby agrees to act as the Shareholders' Agent
pursuant to the terms hereof.
8.9 ACTIONS OF THE SHAREHOLDERS' AGENT. A decision, act, consent or
instruction of the Shareholders' Agent shall constitute a decision of all
Shareholders with an interest in the Escrow Fund and all Optionholders holding
Subject Options and shall be final, binding and conclusive upon each such
Shareholder and Optionholder, and the Escrow Agent and 724 Solutions may rely
upon any decision, act, consent or instruction of the Shareholders' Agent as
being the decision, act, consent or instruction of each and every such
Shareholder and Optionholder. The Escrow Agent, 724 Solutions, Ezlogin and the
Surviving Corporation are hereby relieved from any liability to any person for
any acts done by them in accordance with such decision, act, consent or
instruction of the Shareholders' Agent.
8.10 THIRD-PARTY CLAIMS. In the event 724 Solutions becomes aware of a
third-party claim which 724 Solutions believes may result in a demand against
the Escrow Fund or the Subject Options, 724 Solutions shall promptly notify the
Shareholders' Agent of such claim, and the Shareholders' Agent, on behalf of the
Shareholders and the Optionholders, shall be entitled, at the Shareholders' and
Optionholders' expense, to participate in any defense of such claim. 724
Solutions shall have the right in its sole discretion to settle any such claim;
provided, however, that 724 Solutions may not effect the settlement of any such
claim without the consent of the Shareholders' Agent, which consent shall not be
unreasonably withheld. In the event that the Shareholders' Agent has consented
to any such settlement, the Shareholders' Agent shall have no power or authority
to object under Section 8.6 or any other provision of this Article VIII to the
amount of any claim by 724 Solutions against the Escrow Fund or the Subject
Options for indemnity with respect to such settlement.
ARTICLE IX
GENERAL PROVISIONS
9.1 NON-SURVIVAL AT EFFECTIVE TIME. The agreements set forth in this
Agreement shall terminate at the Effective Time, except that the agreements set
forth in Article I, Section 5.3 (Access to Information; Confidentiality),
Section 5.9 (Ezlogin Options and Ezlogin Convertible Securities), Section 5.10
(Termination of Employee Plans), Section 5.11 (Granting of 724 Solutions
Options), Section 5.14 (Best Efforts and Further Assurances), Section 5.18
(Director and Officer Indemnification), Section 5.19 (Employee Benefit Plans),
46
Section 7.3 (Expenses), Section 7.4 (Amendment), Article VIII and this
Article IX shall survive the Effective Date and the Closing.
9.2 NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally or by commercial
delivery service, or mailed by registered or certified mail (return receipt
requested) or sent via facsimile (with confirmation of receipt) to the parties
at the following address (or at such other address for a party as shall be
specified by like notice):
(a) if to 724 Solutions, to:
724 Solutions Inc.
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx
Xxxxxx, X0X 0X0
Attention: Xxx Xxxxxx, Legal Counsel
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
with a copy to:
Xxxxxxxx & Xxxxxxxx LLP
000 Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
and a copy to:
Xxxxxx Xxxxxxx
Xxxxx 0000, X.X. Xxx 000
Xxxxx Xxxxx Xxxxx, XX Xxxxxx
00 Xxxx Xx. Xxxx
Xxxxxxx, Xxxxxxx
Xxxxxx, X0X 0X0
Attention: Xxxxx Xxxxxx, Esq.
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
(b) if to Ezlogin, to:
Xxxxxxx.xxx, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxx Xxxx, XX 00000
Attention: Xxxx-Xxxx Xxxxxx
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.
Xxxxxxx X. Xxxx, Esq.
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
47
(c) if to Shareholders' Agent, to:
C-Cube Microsystems Inc.
0000 XxXxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxxxxx Xxxxxxxxx
President and CEO
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.
Xxxxxxx X. Xxxx, Esq.
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
9.3 INTERPRETATION. When a reference is made in this Agreement to Exhibits,
such reference shall be to an Exhibit to this Agreement unless otherwise
indicated. The words "include," "includes" and "including" when used herein
shall be deemed in each case to be followed by the words "without limitation."
The phrases "the date of the Original Merger Agreement", "the date hereof", and
terms of similar import, unless the context otherwise requires, shall be deemed
to refer to the March 30, 2000. The table of contents and headings contained in
this Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement.
9.4 COUNTERPARTS; FACSIMILE DELIVERY. This Agreement may be executed in one
or more counterparts and delivered by facsimile, all of which shall be
considered one and the same agreement and shall become effective when one or
more counterparts have been signed by each of the parties and delivered to the
other parties, it being understood that all parties need not sign the same
counterpart.
9.5 ENTIRE AGREEMENT; NONASSIGNABILITY; PARTIES IN INTEREST. This Agreement
and the documents and instruments and other agreements specifically referred to
herein or delivered pursuant hereto, including the Exhibits, the Schedules,
including the Ezlogin Disclosure Schedule (a) constitute the entire agreement
among the parties with respect to the subject matter hereof and supersede all
prior agreements and understandings, both written and oral, among the parties
with respect to the subject matter hereof, except for the Confidentiality
Agreement, which shall continue in full force and effect, and shall survive any
termination of this Agreement or the Closing, in accordance with its terms;
(b) amend and restate the Original Merger Agreement and the Employee
Shareholders' Agreements entered into in connection therewith and supersede and
replace such Original Merger Agreement and such Employee Shareholders'
Agreements in their entirety; (c) are not intended to confer upon any other
person any rights or remedies hereunder, except as set forth in Sections 1.6(a)
and (c)-(f), 1.7, 1.9-1.11, 5.9, 5.11, 5.18, and 5.19; and (d) shall not be
assigned by operation of law or otherwise except as otherwise specifically
provided. Notwithstanding anything herein to the contrary, except as expressly
provided herein, or as otherwise required by applicable law, no party hereto
shall have been deemed be bound by any implied representations, warranties or
other covenants, except as required by law.
9.6 SEVERABILITY. In the event that any provision of this Agreement, or the
application thereof, becomes or is declared by a court of competent jurisdiction
to be illegal, void or unenforceable, the remainder of this Agreement will
continue in full force and effect and the application of such provision to other
persons or circumstances will be interpreted so as reasonably to effect the
intent of the parties hereto. The parties further agree to replace such void or
unenforceable provision of this Agreement with a valid and enforceable provision
that will achieve, to the extent possible, the economic, business and other
purposes of such void or unenforceable provision.
48
9.7 REMEDIES CUMULATIVE. Except as otherwise provided herein, any and all
remedies herein expressly conferred upon a party will be deemed cumulative with
and not exclusive of any other remedy conferred hereby, or by law or equity upon
such party, and the exercise by a party of any one remedy will not preclude the
exercise of any other remedy.
9.8 GOVERNING LAW. This Agreement shall be governed by and construed,
interpreted and enforced in accordance with the laws of the State of California,
without regard to conflict of laws. Each of the parties hereto irrevocably
consents to the exclusive jurisdiction of any court located within the States of
California or New York, in connection with any matter based upon or arising out
of this Agreement or the matters contemplated herein, agrees that process may be
served upon them in any manner authorized by the laws of the States of
California or New York for such persons and waives and covenants not to assert
or plead any objection that they might otherwise have to such jurisdiction and
such process. EACH OF THE PARTIES IRREVOCABLY WAIVES THE RIGHT TO A JURY TRIAL
IN CONNECTION WITH ANY LEGAL PROCEEDING RELATING TO THIS AGREEMENT AND THE OTHER
TRANSACTION AGREEMENTS OR THE ENFORCEMENT OF ANY PROVISION OF THIS AGREEMENT OR
OTHER TRANSACTION AGREEMENTS.
9.9 RULES OF CONSTRUCTION. The parties hereto agree that they have been
represented by counsel during the negotiation, preparation and execution of this
Agreement and, therefore, waive the application of any law, regulation, holding
or rule of construction providing that ambiguities in an agreement or other
document will be construed against the party drafting such agreement or
document.
[Signature page follows]
49
IN WITNESS WHEREOF, Ezlogin and 724 Solutions have caused this Agreement to
be executed and delivered by their respective officers thereunto duly authorized
and Shareholders' Agent has executed and delivered this Agreement, all as of the
date first written above.
XXXXXXX.XXX INC.
By: __________________________________
Name: ________________________________
Title: _______________________________
724 SOLUTIONS INC.
By: __________________________________
Name: ________________________________
Title: _______________________________
SAPPHIRE MERGER SUB, INC.
By: __________________________________
Name: ________________________________
Title: _______________________________
With respect to Section 5.12 and
Article VIII only,
SHAREHOLDERS' AGENT
______________________________________
XXXXXXXXX XXXXXXXXX
[SIGNATURE PAGE TO AMENDED AND RESTATED AGREEMENT
AND PLAN OF MERGER AND REORGANIZATION]
50
ANNEX I
DEFINITIONS
"280G PAYMENTS" shall have the meaning set forth in Section 5.8(c)(iii).
"724 SOLUTIONS COMMON STOCK" means the common shares of 724 Solutions.
"724 SOLUTIONS DAMAGES" shall have the meaning set forth in Section 8.2(b).
"724 SOLUTIONS FINANCIAL STATEMENTS" shall have the meaning set forth in
Section 3.4(b).
"724 SOLUTIONS INDEMNIFIED PERSON(S)" shall have the meaning set forth in
Section 8.2(b).
"724 SOLUTIONS SEC DOCUMENTS" shall have the meaning set forth in
Section 3.4(a).
"724 SOLUTIONS STOCK PRICE" means the average of the closing prices for a share
of 724 Solutions Common Stock as quoted on the Nasdaq Stock Market for the ten
(10) trading days immediately preceding and ending on February 28, 2000.
"ADDITIONAL EZLOGIN OPTIONS" shall have the meaning set forth in
Section 4.2(e)(iv).
"AGREEMENT OF MERGER" shall have the meaning set forth in Section 1.2 and
Exhibit A.
"ALTRAN IP" shall have the meaning set forth in Section 2.11(a).
"ARTICLES OF INCORPORATION" shall have the meaning set forth in Section 2.1
"ASSUMED OPTIONS" shall have the meaning set forth in Section 5.9(b)(i).
"BONUS SHARE AGREEMENTS" shall have the meaning set forth in Section 5.21.
"BONUS SHARES" shall have the meaning set forth in Section 2.2(a).
"CALIFORNIA LAW" shall have the meaning set forth in Section 1.1.
"CERTIFICATES" shall have the meaning set forth in Section 1.7(c).
"CLOSING DATE" shall have the meaning set forth in Section 1.2.
"CLOSING" shall have the meaning set forth in Section 1.2.
"COBRA" shall have the meaning set forth in Section 2.14(c).
"CODE" shall have the meaning set forth in Recital E.
"CONFIDENTIAL INFORMATION" shall have the meaning set forth in Section 2.11(g).
"CONTRACTS REQUIRING NOVATION OR CONSENT TO CHANGE OF CONTROL" shall have the
meaning set forth in Section 2.31.
"DISCLOSURE SCHEDULE UPDATE" shall have the meaning set forth in
Section 5.17(b).
"DISSENTING SHAREHOLDER" shall have the meaning set forth in Section 1.6(f).
"DISSENTING SHARES" means any shares of Ezlogin Capital Stock held by a holder
who has exercised such holder's dissenters' rights in accordance with the
California General Corporations Law and who, as of the Effective Time, has not
effectively withdrawn or lost such dissenter's rights.
"DOLLAR" or "$" means the lawful currency of the United States.
"EFFECTIVE TIME" shall have the meaning set forth in Section 1.2.
"EMPLOYEE HOLDER" shall have the meaning set forth in Section 5.2(a).
"EMPLOYEE HOLDERS' AGREEMENT" shall have the meaning set forth in
Section 5.2(a).
"EMPLOYMENT AGREEMENT" shall have the meaning set forth in Section 5.15(b) and
Exhibit G.
"EMPLOYMENT AND NON-COMPETITION AGREEMENT" shall have the meaning set forth in
Section 5.15(a) and Exhibit F.
51
"ERISA AFFILIATE" shall have the meaning set forth in Section 2.14(a).
"ERISA" shall have the meaning set forth in Section 2.14(a).
"ESCROW AGENT" shall have the meaning set forth in Section 8.1.
"ESCROW AGREEMENT" shall have the meaning set forth in Section 5.12 and
Exhibit E.
"ESCROW FUND" shall have the meaning set forth in Section 1.7(b).
"ESCROW PERIOD" shall have the meaning set forth in Section 8.4(a).
"ESCROW SHARES" shall have the meaning set forth in Section 1.7(d).
"EXCHANGE ACT" shall have the meaning set forth in Section 3.4(a).
"EXCHANGE AGENT" shall have the meaning set forth in Section 1.7(a).
"EXCHANGE RATIO" means a number equal to the quotient obtained by dividing
(i) Eight Hundred Eighty-Eight Thousand Nine Hundred Thirty-Four (888,934)
unregistered shares of 724 Solutions Common Stock by (ii) the Total Outstanding
Shares.
"EXCLUDED DAMAGES" shall have the meaning set forth in Section 8.2(c).
"EZLOGIN AUTHORIZATIONS" shall have the meaning set forth in Section 2.9.
"EZLOGIN BALANCE SHEET DATE" shall have the meaning set forth in Section 2.5.
"EZLOGIN BALANCE SHEET" shall have the meaning set forth in Section 2.6.
"EZLOGIN CAPITAL STOCK" shall have the meaning in Recital C.
"EZLOGIN COMMON STOCK" shall have the meaning set forth in Section 2.2.
"EZLOGIN CONVERTIBLE SECURITIES" means warrants or rights to purchase or
otherwise acquire shares of Ezlogin Common Stock, whether or not presently
exercisable or subject to additional conditions prior to exercise (including,
without limitation, all Bonus Shares to the extent accrued or paid prior to the
Effective Time), other than Ezlogin Options.
"EZLOGIN DISCLOSURE SCHEDULE" shall have the meaning set forth in introductory
paragraph to Article II.
"EZLOGIN EMPLOYEE PLANS" shall have the meaning set forth in Section 2.14(a).
"EZLOGIN OPTIONS" means any and all options outstanding under the Ezlogin Stock
Option Plan.
"EZLOGIN SHAREHOLDERS MEETING" shall have the meaning set forth in
Section 5.8(c)(i).
"EZLOGIN STOCK OPTION PLAN" shall have the meaning set forth in Section 1.6(c).
"EZLOGIN TRANSACTION EXPENSES" shall have the meaning set forth in
Section 2.38.
"FAIRNESS HEARING INFORMATION STATEMENT" shall have the meaning set forth in
Section 5.8(b).
"FAIRNESS HEARING" shall have the meaning set forth in Section 1.11(a) and
Section 5.1(c).
"FINANCIAL STATEMENTS" shall have the meaning set forth in Section 2.4.
"GAAP" shall have the meaning set forth in Section 2.4.
"GOVERNMENTAL ENTITY" shall have the meaning set forth in Section 2.3.
"HEARING DOCUMENTS" shall have the meaning set forth in Section 5.1(c).
"HOLDERS' AGREEMENTS" shall have the meaning set forth in Sections 5.2(d).
"HOLDERS" shall mean Shareholders and Optionholders.
"INDEMNIFICATION CAP" shall have the meaning set forth in Section 8.2(d).
"INDEMNIFICATION THRESHOLD" shall have the meaning set forth in Section 8.2(d).
52
"INTELLECTUAL PROPERTY" shall have the meaning set forth in Section 2.11(a).
"IPO LOCKUP" shall have the meaning set forth in Section 5.11(d).
"IPO" shall have the meaning set forth in Section 3.4(a).
"IRREVOCABLE PROXY" shall have the meaning set forth in Section 2.23 and
Exhibit B.
"KEY EMPLOYEES" shall have the meaning set forth in Section 5.15(a).
"KNOWLEDGE" means actual knowledge of a party's officers and directors and
provided that such persons shall have made due and diligent inquiry of those
employees of such party whom such officers and directors reasonably believe
would have actual knowledge of the matters represented.
"LEASED PREMISES" shall have the meaning set forth in Section 2.32(b).
"LEASES" shall have the meaning set forth in Section 2.32(b).
"MATERIAL ADVERSE EFFECT" with respect to any entity or group of entities means
any event, change or effect that is materially adverse to the condition
(financial or otherwise), properties, assets, liabilities, business, prospects,
operations or results of operations of such entity and its subsidiaries, taken
as a whole, PROVIDED, HOWEVER, that in no event shall any effect that results
from (x) the public announcement, pendency or consummation of the transactions
contemplated hereby (including any effect on the current or prospective
employees, customers or suppliers of such entity or group of entities) or any
actions taken in compliance with this Agreement, (y) changes generally affecting
the industry in which such entity or group of entities conducts business or
(z) changes affecting the United States economy generally, constitute a Material
Adverse Effect.
"MATERIAL CONTRACTS" shall have the meaning set forth in Section 2.29.
"MERGER" shall have the meaning set forth in Recital C.
"MERGER CONSIDERATION" shall have the meaning specified in Section 1.6(a).
"NASDAQ CONFIRMATION" shall have the meaning set forth in Section 1.6(c).
"NON-EMPLOYEE SHAREHOLDERS AGREEMENT" shall have the meaning set forth in
Section 5.2(b) and Exhibit C-2.
"NON-EMPLOYEE SHAREHOLDERS" shall have the meaning set forth in Section 5.2(b).
"OFFERING CIRCULAR" shall have the meaning set forth in Section 5.20(a)(ii).
"OFFICER'S CERTIFICATE" shall have the meaning set forth in Section 8.5(a).
"OPTIONHOLDER" shall mean any holder of Ezlogin Options.
"ORIGINAL EZLOGIN OPTIONS" shall have the meaning set forth in
Section 4.2(e)(iii).
"ORIGINAL MERGER AGREEMENT" shall have the meaning set forth in Recital A.
"OTHER EMPLOYEES" shall have the meaning set forth in Section 5.15(b).
"PERMIT" shall have the meaning set forth in Section 5.1(c).
"PERMITTED LIENS" shall have the meaning set forth in Section 2.10.
"QUALIFIED SUBSIDIARY" shall mean a "QUALIFIED SUBSIDIARY" or a "QUALIFIED
PARTNERSHIP" (as each is defined in Treasury Regulation
Section 1.367(a)-3(c)(5)) that has been engaged in the active conduct of a trade
or business outside the United States within the meaning of Treasury Regulation
Sections 1.367(a)-2T(b)(2) through (4) (which does not include the making or
managing of investments on behalf of 724 Solutions or any Affiliate of
724 Solutions) for the entire 36-month period prior to the Effective Time.
"REGISTRATION RIGHTS AGREEMENT" shall have the meaning set forth in
Section 5.20(b) and Exhibit D.
"REPLACEMENT MERGER SUB" shall have the meaning set forth in Section 1.1.
"RULE 506 DOCUMENTS" shall have the meaning set forth in Section 5.20(a)(ii).
53
"RULE 506 INFORMATION STATEMENT" shall have the meaning set forth in
Section 5.20(a)(ii).
"SECURITIES ACT" shall have the meaning set forth in Section 1.11(a).
"SHAREHOLDER" means any holder of Ezlogin Capital Stock on the relevant date.
"SHAREHOLDERS' AGENT" shall have the meaning set forth in Section 8.8.
"SUBJECT OPTIONS" shall have the meaning set forth in Section 1.7(d)(i).
"SUBJECT SHARES" shall have the meaning set forth in Section 1.7(d)(iv).
"SURVIVING CORPORATION" shall have the meaning set forth in Section 1.1.
"TAKEOVER PROPOSAL" means any offer or proposal for a merger or other business
combination involving Ezlogin or the acquisition of 20% or more of the
outstanding shares of Ezlogin Capital Stock, or a significant portion of the
assets of, Ezlogin, other than the transactions contemplated by this Agreement.
"TAX AUTHORITY" shall have the meaning set forth in Section 2.13(f).
"TAX RETURN" shall have the meaning set forth in Section 2.13(f).
"TAX; TAXES; TAXABLE" shall have the meaning set forth in Section 2.13(f).
"THIRD PARTY INTELLECTUAL PROPERTY RIGHTS" shall have the meaning set forth in
Section 2.11(b).
"TOTAL OUTSTANDING SHARES" means the aggregate number of shares of Ezlogin
Capital Stock outstanding immediately prior to the Effective Time, on a fully
diluted basis, assuming exercise or conversion of all Ezlogin Options and
Ezlogin Convertible Securities (including the Bonus Shares to the extent paid or
accrued prior to the Effective Time) and all other rights to acquire Ezlogin
Capital Stock, whether or not vested, but excluding any Additional Ezlogin
Options or shares of Ezlogin Common Stock issuable on the exercise thereof.
"TRANSACTION AGREEMENTS" shall mean (1) this Agreement, (2) the Voting
Agreement, (3) the Holders' Agreements; (4) the Registration Rights Agreement,
if applicable; (5) the Escrow Agreement; (6) the Employment and Non-Competition
Agreements, and (7) the Employment Agreements.
"UNVESTED SHARE" shall have the meaning set forth in Section 5.2(c).
"UNVESTED SHARE REPURCHASE OPTION" shall have the meaning set forth in
Section 5.2(c).
"VOTING AGREEMENT" shall have the meaning set forth in Section 2.23 and
Exhibit B.
54
SCHEDULE 4.2(O)
Restrictions on Conduct of Business -- Employee Bonuses
Salary Increases to US Employees:
Xxxxxxx Xxxxxxx Ruault: $110,000 to $120,000
Xxxxxxx Xxxxxxxxxx: $95,000 to $100,000
Wanich Kantasima: $75,000 to $85,000
Salary Increases to French Employees:
Xxxxxxxx Xxxxx: 300,000 frs. to 355,000 frs.
Djilali Saiah: 120,000 frs. to 180,000 frs.
EMPLOYEE NAME BONUS AMOUNT (US DOLLARS)
------------- -------------------------
Xxxxx Xxxxxxxx.................................... $ 4,000
Xxxxx Xxxxxxx..................................... $ 9,000
Xxxxxxx Xxxxxxx-Ruault............................ $ 29,000
Xxxx Xxxxxx....................................... $ 30,000
Fabrice Armisen................................... $ 6,000
Xxxxxxxx Xxxxx.................................... $ 27,000
Xxxx Xxxxxx....................................... $ 12,000
Xxxxxxx Xxxxxxx................................... $ 1,000
Renaud Campredon.................................. $ 6,000
Xxxxxx Upaphyay................................... $ 5,000
Xxxxxx Xxxxx...................................... $ 2,000
Xxxxx Xxxxxxxxxxx................................. $ 30,000
Xxxxxxx Xxxxxxxxxx................................ $ 8,000
Wanich Kantasima.................................. $ 4,000
TOTAL..................................... $173,000
55
SCHEDULE 5.2(B)
NON-EMPLOYEE SHAREHOLDERS
Xxxxxx, Xxxxxx
Angel Investors, L.P.
Angel (Q) Investors, L.P.
Angel Investors, Q L.P.
Balkanski, Alexandre
Xxxxx, Xxxxxxx
The Camden Group
Xxxxxx, Xxxxxx
Dewost, Phillipe
D.G. Mars Capital B.V.
Xxxxxxxx, Xxxxxxx
Xxxx, Xxxxx
Halatre, Dominique
Intuit Inc.
Xxxxxx, Xxxxxx
Xxxxxx 1995 Charitable Remainder Unitrust
Xxxxxx, Xxxxxx
Platane Fund
Platane Investments
Poitevin Investments Ltd.
Xxxxxx, Xxxxxxxx
Xxxxx, Xxxxx X.
Xxxxxxxxxx, Xxxxx
Xxx Investment Trust
Tilli, Xxxxx
Xxxxx Family Trust
Xxxx, Xxxxx
Xxxx Family Trust
Verisign, Inc.
56
SCHEDULE 5.6
AFFILIATES
Jonqille Investment Limited
Xxxx-Xxxx Xxxxxx
Tan Investment Trust
Xxxxxxxxx Xxxxxxxxx
Xxxxxx Xxxxxx
Xxxxxx 1995 Charitable Remainder Unitrust
Intuit, Inc.
57
SCHEDULE 5.15(A)
KEY EMPLOYEES
Xxxx-Xxxx XxXxxx
Xxxxxxx-Xxxxxxx Ruault
Xxxxxxx Xxxxxxxxxx
Wanich Kantasima
Renaud Campredon
Xxxxxxxx Xxxxx
58
SCHEDULE 5.15(B)
OTHER EMPLOYEES
The following Other Employees will execute and deliver an Employment Agreement
concurrently with the execution of this Agreement:
Fabrice Armisen
Xxxxxxx Xxxxxxx-Sahia
Xxxxxxx Xxxxxx
At least three (3) of the following Other Employees must execute and deliver the
Employment Agreement to satisfy the Closing condition in Section 6.3(l) hereof:
Xxxx-Xxxxxx Vourgere
Xxxx Xxxxxxx
Xxxxx Xxxxxxxx
Xxxxx Xxxxxxxxxxx
Xxxxxxx Xxxxx
Xxxxxxxxx Xxxx
At least two (2) of the following Other Employees must execute and deliver the
Employment Agreement to satisfy the Closing condition in Section 6.3(l) hereof:
Guillaume Jeux
Xxxxxx Xxxxx Xxxxxx
Xxxx Xxxxx
59
EXHIBIT A
AGREEMENT OF MERGER
OF SAPPHIRE MERGER SUB, INC.
AND
XXXXXXX.XXX
This Agreement of Merger (the "Agreement") is made and entered into as of
June 15, 2000, between Xxxxxxx.xxx, a California corporation (the "Company"),
and Sapphire Merger Sub, Inc., a California corporation ("Merger Sub" and,
together with the Company, the "Constituent Corporations") and a wholly owned
subsidiary of 724 Solutions Inc., a corporation amalgamated under the laws of
Ontario ("Parent").
RECITALS
A. Parent, the Company, Merger Sub and Alexandre Balkinski, as the
Shareholders' Agent, have entered into that certain First Amended and Restated
Agreement and Plan of Merger and Reorganization dated as of May 9, 2000, as
amended (the "Reorganization Agreement"), providing, among other things, for the
execution and filing of this Agreement and the merger of Merger Sub with and
into the Company (the "Merger").
B. The respective Boards of Directors of each of the Constituent
Corporations deem it advisable and in the best interests of each of such
corporations and their respective shareholders that Merger Sub be merged with
and into the Company and have approved this Agreement and the Merger.
C. The Reorganization Agreement, this Agreement and the Merger have been
approved by the shareholders of the Company and by the sole shareholder of
Merger Sub.
NOW THEREFORE, in consideration of the mutual agreements and covenants set
forth herein, the parties hereto hereby agree as follows:
ARTICLE I
THE CONSTITUENT CORPORATIONS
1.1 The Company. The authorized capital stock of the Company consists of
25,000,000 shares of common stock, par value $0.001 per share ("Company Common
Stock"), and 9,100,000 shares of preferred stock, par value $0.001 per share, of
which 2,400,000 shares have been designated as Series A Preferred Stock and
6,700,000 shares have been designated as Series B Preferred Stock (collectively
"Company Preferred Stock"). Company Common Stock and Company Preferred Stock are
sometimes referred to herein, collectively, as "Company Capital Stock." As of
the date of this Agreement, there are issued and outstanding (i) 7,846,823
shares of Company Common Stock, (ii) 2,400,000 shares of Series A Preferred
Stock, and (iii) 3,701,665 shares of Series B Preferred Stock, all of which are
validly issued, fully paid and nonassessable. The Company was incorporated under
the laws of the State of California on January 19, 1999.
1.2 Merger Sub. The authorized capital stock of Merger Sub consists of
10,000 shares of common stock, no par value ("Merger Sub Common Stock"). As of
the date of this Agreement, 1,000 shares of Merger Sub Common Stock are
outstanding, all of which are validly issued, fully paid and nonassessable, and
held by Parent. Merger Sub was incorporated under the laws of the State of
California on March 2, 2000.
ARTICLE II
THE MERGER
2.1 The Merger. At the Effective Time (as defined in Section 2.2) and
subject to and upon the terms and conditions of this Agreement and the
applicable provisions of the laws of the State of California ("California Law"),
Merger Sub shall be merged with and into the Company, the separate corporate
existence of Merger Sub shall cease and the Company shall continue as the
surviving corporation. The Company as the surviving corporation after the Merger
is hereinafter sometimes referred to as the "Surviving Corporation."
A-1
2.2 Effective Time; Closing. This Agreement shall be effective upon filing
with the Secretary of State of the State of California (the time of such filing,
the "Effective Time").
2.3 Effect of the Merger. The effect of the Merger shall be as provided in
this Agreement and the applicable provisions of California Law. Without limiting
the generality of the foregoing, and subject thereto, at the Effective Time all
the property, rights, privileges, powers and franchises of the Company and
Merger Sub shall vest in the Surviving Corporation, and all debts, liabilities
and duties of the Company and Merger Sub shall become the debts, liabilities and
duties of the Surviving Corporation.
2.4 Articles of Incorporation. At the Effective Time, the Articles of
Incorporation of the Company shall be amended and restated as set forth in
Exhibit A attached hereto.
2.5 Effect on Capital Stock. Subject to the terms and conditions of this
Agreement, by virtue of the Merger and without any action on the part of Parent,
Merger Sub, the Company or the holders of any of the following securities, the
following shall occur:
(i) Company Common Stock. At the Effective Time, each share of Company
Common Stock issued and outstanding immediately prior to the Effective Time
(excluding any shares of Company Common Stock cancelled pursuant to
Section 2.5(ii) and excluding any Dissenting Shares (as defined in
Section 2.6)) will be cancelled and extinguished and automatically converted
into the right to receive 0.0719513 shares (the "Exchange Ratio") of the
Common Stock of Parent ("Parent Common Stock").
(ii) Cancellation of Company-Owned Stock. At the Effective Time, all
shares of Company Capital Stock that are owned by the Company as treasury
stock immediately prior to the Effective Time shall be canceled and
extinguished without any conversion thereof.
(iii) Company Preferred Stock. Immediately prior to the Effective Time,
all Company Preferred Stock then outstanding shall be automatically
converted into shares of Company Common Stock.
(iv) Merger Sub Common Stock. At the Effective Time, each share of
Merger Sub Common Stock issued and outstanding immediately prior to the
Effective Time shall be converted into one validly issued, fully paid and
nonassessable share of common stock, no par value per share, of the
Surviving Corporation.
(v) Adjustments to Exchange Ratio. The Exchange Ratio shall be adjusted
to reflect fully the effect of any stock split, reverse stock split, stock
dividend (including any dividend or general distribution of securities
convertible into or exchangeable for Parent Common Stock or Company Capital
Stock), reorganization, recapitalization or other like change with respect
to Parent Common Stock or Company Capital Stock occurring after March 30,
2000 and prior to the Effective Time.
(vi) Fractional Shares. No fraction of a share of Parent Common Stock
will be issued, but in lieu thereof each holder of shares of Company Capital
Stock who would otherwise be entitled to a fraction of a share of Parent
Common Stock (after aggregating all fractional shares of Parent Common Stock
to be received by such holder) shall receive from Parent an amount of cash
(rounded to the nearest whole cent) equal to the product of (i) such
fraction, multiplied by (ii) $40.5750, less any amount required to be
withheld under foreign, federal, state or local tax laws.
2.6 Dissenting Shares. Notwithstanding any provision of this Agreement to
the contrary, any shares of Company Common Stock held by a holder who has
demanded and perfected dissenters' rights for such shares in accordance with
California Law and who, as of the Effective Time, has not effectively withdrawn
or lost such dissenters' rights ("Dissenting Shares") shall not be converted
into the right to receive Parent Common Stock but shall instead be converted
into the right to receive such consideration as may be determined to be due with
respect to such Dissenting Shares pursuant to California Law. If, after the
Effective Time, any Dissenting Shares shall lose their status as Dissenting
Shares, such shares shall automatically be converted into and represent only the
right to receive the number of shares of Parent Common Stock into which such
shares would otherwise be converted under Section 2.5.
A-2
ARTICLE III
MISCELLANEOUS
3.1 Further Action. If, at any time after the Effective Time, any further
action is necessary or desirable to carry out the purposes of this Agreement or
to vest the Surviving Corporation with full right, title and possession to all
assets, property, rights, privileges, powers and franchises of either the
Company or Merger Sub, the officers and directors of the Surviving Corporation
are fully authorized to take, and will take, all such lawful and necessary
action.
3.2 Multiple Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be an original, but all of which when taken
together shall constitute one and the same agreement. This Agreement shall
become effective when one or more counterparts has been signed by each of the
parties and delivered to each of the other parties.
3.3 Choice of Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California, without reference to choice
of law provisions.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized respective officers as of the date first
written above.
SAPPHIRE MERGER SUB, INC.
By: __________________________________
Xxxxx Xxxxxx, President
By: __________________________________
Xxxxx Xxxxxx, Secretary
XXXXXXX.XXX
By: __________________________________
Xxxx-Xxxx Xxxxxx, President
By: __________________________________
Xxxxxx Xxxxxx, Secretary
A-3
EXHIBIT B
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") is entered into as of March 30,
2000 by and between 724 Solutions Inc., a corporation amalgamated under the laws
of Ontario ("724 Solutions"), and the undersigned shareholder (the
"Shareholder") of Xxxxxxx.xxx, Inc. ("Ezlogin").
RECITALS
A. This Agreement is entered into in connection with the Agreement and Plan
of Merger and Reorganization, dated as of March 30, 2000, among 724 Solutions,
Ezlogin, Merger Sub and Shareholders' Agent, as the same may be amended (the
"Merger Agreement"), pursuant to which Merger Sub will be merged with and into
Ezlogin. Capitalized terms used in this Agreement and not otherwise defined
herein shall have the meanings ascribed to them in the Merger Agreement.
B. Shareholder holds and/or has options to acquire shares of Ezlogin
Capital Stock (the "Shares").
C. Pursuant to the Merger Agreement, at the Effective Time, each
outstanding share of Ezlogin Capital Stock will be converted into the right to
receive shares of 724 Solutions Common Stock (the "724 Solutions Shares") and
cash in lieu of any fractional shares thereof.
D. Shareholder is entering into this Agreement as a material inducement to,
and in consideration of, 724 Solutions' willingness to enter into the Merger
Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the promises and the mutual agreements,
provisions and covenants set forth in the Merger Agreement and in this
Agreement, it is hereby agreed as follows:
1. AGREEMENT TO RETAIN SHARES. Shareholder agrees not to directly or
indirectly offer, sell, assign, transfer, encumber, pledge, contract to sell,
sell any option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant to purchase, lend, or otherwise dispose
of, any Shares or any securities convertible into or exercisable or exchangeable
for Shares or publicly disclose the intention to make any such offer, sale,
assignment, transfer, pledge, grant or disposal ("Transfer"), or deposit any
Shares into a voting trust or grant a proxy or enter into an agreement of any
kind with respect to the voting of any Shares, except for the Proxy at any time
prior to the Expiration Date (as defined in the Proxy), other than as may be
otherwise permitted in the Transaction Agreements, including Section 2 of the
applicable Shareholders' Agreement.
2. AGREEMENT TO VOTE SHARES. Prior to the earlier to occur of (i) the
Effective Time of the Merger, and (ii) termination of the Merger Agreement, at
every meeting of the Shareholders called with respect to any of the following,
and at every adjournment thereof, and on every action or approval by written
resolution of the Shareholders with respect to any of the following, Shareholder
shall vote all Shares in favor of approval of the Merger and any matter that
could reasonably be expected to facilitate the Merger.
3. IRREVOCABLE PROXY. Contemporaneously with the execution of this
Agreement, Shareholder is delivering to 724 Solutions a duly executed proxy in
the form attached hereto as Exhibit A (the "Proxy") with respect to each and
every meeting of Shareholders or action or approval by written resolution of
Shareholders prior to the Expiration Date, such Proxy to cover all Shares in
respect of which Shareholder is entitled to vote at any such meeting or in
connection with any such written consent.
4. NO SOLICITATION. Until the Expiration Date, Shareholder will not (and
will use commercially reasonable best efforts to cause Ezlogin, its affiliates,
officers, directors and employees and any investment banker, attorney,
accountant or other agent retained by Shareholder or them, not to):
(i) initiate or solicit, directly or indirectly, any proposal, plan or offer to
acquire all or any substantial part of the business or properties or capital
stock of Ezlogin, whether by merger, purchase of assets, tender offer or
otherwise, or to liquidate Ezlogin or otherwise distribute to the shareholders
of Ezlogin all or any substantial part of the business, properties or capital
stock of Ezlogin (each, an "Acquisition Proposal"); (ii) initiate, directly or
indirectly, any contact with any person in an
B-1
effort to or with a view towards soliciting any Acquisition Proposal;
(iii) furnish non-public information concerning Ezlogin's business, properties
or assets to any corporation, partnership, person or other entity or group
(other than 724 Solutions, or any associate, agent or representative of
724 Solutions) under any circumstances that could reasonably be expected to
result in an Acquisition Proposal; or (iv) negotiate or enter into discussions
or an agreement, directly or indirectly, with any entity or group with respect
of any potential Acquisition Proposal. In the event Shareholder shall receive or
become aware of any Acquisition Proposal subsequent to the date hereof,
Shareholder shall promptly inform 724 Solutions as to any such matter and the
details thereof.
5. AFFILIATE AGREEMENT.
(a) If Shareholder is determined by Ezlogin or 724 Solutions to be (but does
not hereby admit to be) an "affiliate" of Ezlogin within the meaning of
Rule 145 under the Securities Act in connection with the Merger, then (unless
Shareholder has been advised by 724 Solutions that the issuance of the Shares in
the Merger will not be registered under the Securities Act in reliance upon the
exemption of Section 4(2) of the Securities Act rather than Section 3(a)(10) of
the Securities Act), Shareholder shall not sell, transfer or otherwise dispose
of the Shares issued to Shareholder in the Merger unless (i) such sale, transfer
or other disposition is made in conformity with the requirements of Rule 145(d)
promulgated under the Act, or (ii) Shareholder delivers to 724 Solutions a
written opinion of counsel, reasonably acceptable to 724 Solutions in form and
substance, that such sale, transfer or other disposition is otherwise exempt
from registration under the Securities Act.
(b) To the extent Shareholder is deemed to be an "affiliate" of Ezlogin,
724 Solutions will give stop-transfer instructions to its transfer agent with
respect to the Shares received by Shareholder pursuant to the Merger and there
will be placed on the certificates representing such Shares, or any
substitutions therefor, a legend stating in substance:
"The shares represented by this certificate may only be transferred in
conformity with Rule 145(d) or in accordance with a written opinion of
counsel, reasonably acceptable to the issuer in form and substance, that
such transfer is exempt from registration under the Securities Act of
1933."
The legend set forth above shall be removed (by delivery of a substitute
certificate without such legend) if Shareholder delivers to 724 Solutions
(i) satisfactory written evidence that the shares have been sold in compliance
with Rule 145 (in which case, the substitute certificate will be issued in the
name of the transferee), or (ii) an opinion of counsel, in form and substance
reasonably satisfactory to 724 Solutions, to the effect that public sale of the
shares in the U.S. by the holder thereof is no longer subject to Rule 145.
6. ADDITIONAL DOCUMENTS; PRIOR AGREEMENTS. Shareholder hereby covenants and
agrees to execute and deliver any additional documents necessary or desirable,
in the reasonable opinion of 724 Solutions, to carry out the purpose and intent
of this Agreement. Shareholder also agrees that all the shares of 724 Solutions
Common Stock issued in the Merger (including any Escrow Shares and any cash paid
in lieu of fractional shares) shall be deemed to satisfy all rights pertaining
to the Ezlogin Capital Stock and any other rights or agreements relating thereto
shall be of no further force or effect, except as otherwise contemplated by the
Merger Agreement.
7. CONSENT AND WAIVER. Shareholder hereby gives any consents or waivers
that are reasonably required for the consummation of the Merger under the terms
of any agreement to which Shareholder is a party or pursuant to any rights
Shareholder may have.
8. CONFIDENTIALITY. Shareholder agrees (i) to hold any information
regarding this Agreement and the Merger in strict confidence, and (ii) not to
divulge any such information to any third person, until such time as the Merger
has been publicly disclosed by 724 Solutions or Shareholder is legally compelled
to disclose such information.
9. MISCELLANEOUS.
(a) AMENDMENT AND MODIFICATION. This Agreement may not be modified,
amended, altered or supplemented except by the execution and delivery of a
written agreement executed by the parties hereto.
B-2
(b) ASSIGNMENT. This Agreement will be binding upon, and inure to the
benefit of, the persons or entities who are permitted, by the terms of this
Agreement, to be successors, assigns, transferees and personal representatives
of the respective parties hereto.
(c) COSTS OF ENFORCEMENT. If any party to this Agreement seeks to enforce
its rights under this Agreement by legal proceedings or otherwise, the
non-prevailing party will pay all costs and expenses incurred by the prevailing
party, including, without limitation, all reasonable attorneys' and experts'
fees.
(d) COUNTERPART EXECUTION; FACSIMILE DELIVERY. This Agreement may be
executed in several counterparts and delivered by facsimile, each of which shall
be an original, but all of which together shall constitute one and the same
agreement.
(e) EFFECT OF HEADINGS. The section headings herein are for convenience
only and shall not affect the construction or interpretation of this Agreement.
(f) ENTIRE AGREEMENT. This Agreement and the exhibits hereto contains the
entire understanding of the parties in respect of the subject matter hereof, and
supersede all prior negotiations and understandings between the parties with
respect to such subject matter.
(g) FURTHER ASSURANCES. Shareholder agrees to execute and deliver, before
or after the Effective Time, any additional documents reasonably necessary or
desirable to carry out the purposes and intent of this Agreement.
(h) GOVERNING LAW. This Agreement shall be governed by and construed,
interpreted and enforced in accordance with the laws of the State of California,
without regard to conflict of laws. Each of the parties hereto irrevocably
consents to the jurisdiction of any court located within the State of New York
or the State of California, in connection with any matter based upon or arising
out of this Agreement or the matters contemplated herein, agrees that process
may be served upon them in any manner authorized by the laws of the State of
California for such persons and waives and covenants not to assert or plead any
objection that they might otherwise have to such jurisdiction and such process.
EACH OF THE PARTIES IRREVOCABLY WAIVES THE RIGHT TO A JURY TRIAL IN CONNECTION
WITH ANY LEGAL PROCEEDING RELATING TO THIS AGREEMENT AND THE OTHER TRANSACTION
AGREEMENTS OR THE ENFORCEMENT OF ANY PROVISION OF THIS AGREEMENT OR OTHER
TRANSACTION AGREEMENTS.
(i) NOTICES. All notices, requests, demands or other communications that
are required or may be given pursuant to the terms of this Agreement shall be in
writing and shall be deemed to have been duly given if delivered by hand or
mailed by registered or certified mail, postage prepaid, as follows:
IF TO THE SHAREHOLDER, at the address set forth below the Shareholder's
signature at the end hereof.
with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx, Esq.
Xxxxxxx X. Xxxx, Esq.
Fax: (000) 000-0000
Phone: (000) 000-0000
IF TO 724 SOLUTIONS:
724 Solutions Inc.
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx X0X 0X0
Xxxxxx
Attn: Xxx Xxxxxx, Legal Counsel
Fax: (000) 000-0000
Phone: (000) 000-0000
B-3
with a copy to:
Xxxxxxxx & Xxxxxxxx LLP
000 Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
Fax: (000) 000-0000
Phone: (000) 000-0000
and
Oglivy Renault
Xxxxx 0000, X. X. Xxx 000
Xxxxx Trust Tower, TD Centre
Toronto, Ontario M5K 1H1
Attn: Xxxxx Xxxxxx
Fax: (000) 000-0000
Phone: (000) 000-0000
IF TO EZLOGIN:
Xxxxxxx.xxx, Inc.
0000 Xxx Xxxxxxxxx Xx., Xxxxx 000
Xxxxx Xxxxx, XX 00000
Attn: Xxxx-Xxxx Xxxxxx
Fax: (000) 000-0000
Phone: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx, Esq.
Xxxxxxx X. Xxxx, Esq.
Fax: (000) 000-0000
Phone: (000) 000-0000
or to such other address as any party hereto may designate for itself by notice
given as herein provided.
(j) SEVERABILITY. If any provision of this Agreement is held to be
unenforceable for any reason, such provision and all other related provisions
shall be modified rather than voided, if possible, in order to achieve the
intent of the parties to this Agreement to the extent possible. In any event,
all other unrelated provisions of this Agreement shall be deemed valid and
enforceable to the full extent.
(k) SPECIFIC PERFORMANCE; INJUNCTIVE RELIEF. The parties hereto acknowledge
that 724 Solutions will be irreparably harmed and that there will be no adequate
remedy at law for a violation of any of the covenants or agreements of
Shareholder set forth herein. Therefore, it is agreed that, in addition to any
other remedies that may be available to 724 Solutions upon any such violation,
724 Solutions shall have the right to enforce such covenants and agreements by
specific performance, injunctive relief or by any other means available to
724 Solutions at law or in equity and the Shareholder hereby waives any and all
defenses which could exist in its favor in connection with such enforcement and
waives any requirement for the security or posting of any bond in connection
with such enforcement.
(l) TERMINATION. This Agreement may be terminated by either Shareholder or
724 Solutions, if the Closing has not occurred on or prior to June 30, 2000, or
such other date, if any, as 724 Solutions and Shareholder shall agree upon;
provided, that the party seeking to terminate this Agreement shall not have
breached in any material respect its obligations under this Agreement.
[Signature page follows]
B-4
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
724 SOLUTIONS INC.
By: __________________________________
Its
SHAREHOLDER:
______________________________________
Name: _______________________________
Address: _____________________________
_____________________________
Fax: ______________________________
Total Number of Shares of Ezlogin Capital Stock owned on the date hereof:
Common Stock:
------------------------------------
Series A Preferred Stock:
------------------------------------
Series B Preferred Stock:
------------------------------------
State or Country of Residence:
------------------------------------
[SIGNATURE PAGE TO VOTING AGREEMENT]
B-5
EXHIBIT A
IRREVOCABLE PROXY
TO VOTE STOCK OF
XXXXXXX.XXX
The undersigned shareholder of Xxxxxxx.xxx, Inc., a California corporation
("Ezlogin"), hereby irrevocably (to the fullest extent permitted by the
California Corporations Code) appoints the members of the Board of Directors of
724 Solutions Inc., a corporation amalgamated under the laws of Ontario ("724
Solutions"), and each of them, or any other designee of 724 Solutions, as the
sole and exclusive attorneys and proxies of the undersigned, with full power of
substitution and resubstitution, to vote and exercise all voting and related
rights (to the fullest extent that the undersigned is entitled to do so) with
respect to all of the shares of capital stock of Ezlogin that now are or
hereafter may be beneficially owned by the undersigned, and any and all other
shares or securities of Ezlogin issued or issuable in respect thereof on or
after the date hereof (collectively, the "Shares") in accordance with the terms
of this Irrevocable Proxy. The Shares beneficially owned by the undersigned
shareholder of Ezlogin as of the date of this Irrevocable Proxy are listed on
the final page of this Irrevocable Proxy. Upon the undersigned's execution of
this Irrevocable Proxy, any and all prior proxies given by the undersigned with
respect to any Shares are hereby revoked and the undersigned agrees not to grant
any subsequent proxies with respect to the Shares until after the Expiration
Date.
This Irrevocable Proxy is irrevocable (to the fullest extent provided in the
California Corporations Code), is coupled with an interest, including, but not
limited to, that certain Voting Agreement dated as of even date herewith by and
among 724 Solutions and the undersigned, and is granted in consideration of 724
Solutions entering into that certain Agreement and Plan of Merger and
Reorganization, among Ezlogin, 724 Solutions, Sapphire Merger Sub, Inc., a
California corporation and wholly-owned subsidiary of 724 Solutions ("Merger
Sub"), and Shareholders' Agent, as may be amended (the "Merger Agreement"),
which agreement provides for the merger of Merger Sub with and into the Ezlogin
(the "Merger"). As used herein, the term "Expiration Date" shall mean the
earlier to occur of (i) such date and time as the Merger shall become effective
in accordance with the terms and provisions of the Merger Agreement, (ii) the
date of termination of the Merger Agreement, and (iii) the Voting Agreement is
terminated.
The attorneys and proxies named above, and each of them are hereby
authorized and empowered by the undersigned, at any time prior to the Expiration
Date, to act as the undersigned's attorney and proxy to vote the Shares, and to
exercise all voting and other rights of the undersigned with respect to the
Shares (including, without limitation, the power to execute and deliver written
consents pursuant to the California Corporations Code), at every annual, special
or adjourned meeting of the stockholders of the Ezlogin and in every written
consent in lieu of such meeting as follows: (a) in favor of approval of the
Merger and the Merger Agreement and (b) in favor of any matter that could
reasonably be expected to facilitate the Merger.
The attorneys and proxies named above may not exercise this Irrevocable
Proxy on any other matter except as provided above. The undersigned stockholder
may vote the Shares on all other matters.
All authority herein conferred shall survive the death or incapacity of the
undersigned and any obligation of the undersigned hereunder shall be binding
upon the heirs, personal representatives, successors and assigns of the
undersigned.
[SIGNATURE PAGE FOLLOWS]
B-A-1
This Irrevocable Proxy is coupled with an interest as aforesaid and is
irrevocable.
Dated: ____________________________________ , 2000
SHAREHOLDER:
______________________________________
Name: _______________________________
Address: _____________________________
_____________________________
Fax: ______________________________
Total Number of Shares of Ezlogin Capital Stock owned on the date hereof:
Common Stock:
------------------------------------
Series A Preferred Stock:
------------------------------------
Series B Preferred Stock:
------------------------------------
State or Country of Residence:
------------------------------------
[SIGNATURE PAGE TO IRREVOCABLE PROXY]
B-A-2
EXHIBIT C-1
EMPLOYEE HOLDERS' AGREEMENT
THIS EMPLOYEE HOLDERS' AGREEMENT (this "Agreement") is entered into as
, 2000 by and between 724 Solutions Inc., a corporation amalgamated under
the laws of Ontario ("724 Solutions"), and the undersigned ("Holder").
RECITALS
This Agreement is entered into in connection with the First Amended and
Restated Agreement and Plan of Merger and Reorganization, dated as of May 9,
2000, among 724 Solutions, Xxxxxxx.xxx, Inc. ("Ezlogin"), Sapphire Merger
Sub, Inc. ("Merger Sub") and the Shareholders' Agent named therein (as the same
may be amended, the "Merger Agreement"), pursuant to which Merger Sub will be
merged with and into Ezlogin. Capitalized terms used in this Agreement and not
otherwise defined herein shall have the meanings ascribed to them in the Merger
Agreement.
Holder holds, and/or has options to acquire, shares of Ezlogin Capital
Stock.
Pursuant to the Merger Agreement, at the Effective Time, each outstanding
share of Ezlogin Capital Stock will be converted into the right to receive
shares of 724 Solutions Common Stock (the "724 Solutions Shares") and cash in
lieu of any fractional shares thereof. All Ezlogin options then outstanding
under the Ezlogin Stock Option Plan (the "Ezlogin Options") will be assumed by
724 Solutions (as such, the "Assumed Options") or, if prior to the Closing
724 Solutions shall not have received written confirmation from the Nasdaq
National Market that a vote of the 724 Solutions shareholders will not be
required in connection with such assumption, will become exercisable and, if
exercised, the resulting shares of Ezlogin Common Stock will be converted into
the right to receive 724 Solutions Shares.
It is currently contemplated that the 724 Solutions Shares will be issued to
Holder pursuant to an exemption from the registration requirements of the
Securities Act provided by Section 3(a)(10) thereof, pursuant to a permit (the
"Permit") to be issued by the California Commissioner of Corporations after a
Fairness Hearing. In the event the Permit is not issued following the Fairness
Hearing, the 724 Solutions Shares shall, if the exemption is available, be
issued in a private placement as "restricted securities" as defined under
Rule 144 of the Securities Act.
The 724 Solutions Shares issued in the Merger and, if applicable, upon the
exercise of Assumed Options, will be subject to contractual transfer
restrictions, including a lock-up. Additionally, certain of such 724 Solutions
Shares issued in the Merger and, if applicable, certain of the Assumed Options
and certain of the 724 Solutions Shares issued upon exercise thereof, will be
subject to an escrow or cancellation, as applicable, as security for Holder's
indemnity obligations under Article VIII of the Merger Agreement.
If 724 Solutions does not assume the Ezlogin Options in connection the
Merger, then the 724 Solutions Shares issued in exchange for shares of Ezlogin
Capital Stock issued upon the early exercise of Ezlogin Options ("Repurchase
Shares") will be subject to a repurchase right held by 724 Solutions (the
"Repurchase Option").
Holder is entering into this Agreement as a material inducement to, and in
consideration of, 724 Solutions' willingness to enter into the Merger Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises, representations,
warranties, covenants and conditions set forth in this Agreement, the parties
mutually agree as follows:
REPRESENTATIONS, WARRANTIES AND COVENANTS. Holder hereby represents,
warrants and covenants to 724 Solutions as follows:
OWNERSHIP OF EZLOGIN CAPITAL STOCK. Holder now owns and will own
immediately prior to the Effective Time (including shares held both
beneficially and of record and shares held either beneficially or of record)
such number of shares of Ezlogin Capital Stock and/or the number of Ezlogin
Options as is set forth on
C-1-1
Schedule 1. Holder does not directly or indirectly own, either beneficially
or of record, any shares of capital stock of Ezlogin or rights to purchase
or acquire or otherwise receive any shares of Ezlogin Capital Stock or
Ezlogin Options or other securities of Ezlogin, whether vested, unvested or
subject to any other contingency, other than the shares of Ezlogin Capital
Stock and/or Ezlogin Options listed on Schedule 1.
ABSENCE OF LIENS AND ENCUMBRANCES. Except as provided on Schedule 1
attached hereto, the shares of Ezlogin Capital Stock and/or the Ezlogin
Options owned or held by Holder (including shares held both beneficially and
of record and shares held either beneficially or of record) are now and at
the Effective Time will be free and clear of all liens and encumbrances.
None of the liens or encumbrances listed on Schedule 1 will prevent, delay
or otherwise interfere with the conversion of shares in the Merger. Prior to
Closing, Holder shall obtain any such xxxx xxxxxx'x agreement in writing to
be bound by the terms of this Agreement and the other Transaction
Agreements, or in the absence of such written agreement, Holder shall
discharge the lien prior to Closing.
CONVERSION OF PREFERRED STOCK/EXERCISE OF OPTIONS. Immediately prior to
the Effective Time of the Merger, Holder covenants (i) to convert any
Ezlogin Preferred Stock into Ezlogin Common Stock and (ii) if the Ezlogin
Options are not assumed by 724 Solutions, to exercise the Ezlogin Options.
AUTHORITY, ENFORCEABILITY.
Holder has the authority, legal capacity and financial capability to enter
into, execute, deliver and perform his obligations under this Agreement and each
of the other documents contemplated to be executed by Holder in connection with
the Merger Agreement, including, if applicable, the Voting Agreement, and to
perform the obligations of the "Shareholders," "Optionholders" or "Holders"
under Merger Agreement, the Escrow Agreement and the other Transaction
Agreements, as applicable. This Agreement and each of the other Transaction
Agreements to which Holder is or is to become a party constitutes, or when
executed and delivered by Holder will constitute, a valid and binding obligation
of Holder enforceable against Holder in accordance with its terms, subject to
laws of general application relating to bankruptcy, insolvency, reorganization,
moratorium, and other similar laws and equitable principles relating to or
limiting creditors' rights generally, general equity principles, and limitations
upon rights to indemnity.
Holder has delivered evidence, reasonably satisfactory to 724 Solutions,
that (1) Holder (if not an individual) has the authority and power to execute
this Agreement and the individual executing this Agreement has the authority to
do so on Holder's behalf; provided that the execution and delivery of a
Certificate of Trust by a Holder that is a trust, and an Incumbency Certificate
by a Holder that is a corporate entity or partnership (in the forms attached as
Exhibits 1 and 2 hereto) shall be deemed to satisfy this condition; but provided
further, that notwithstanding the above, in the event 724 Solutions has a
reasonable belief that such certificate is materially untrue or contains a
material misstatement of fact, 724 Solutions may demand additional reasonable
evidence from such Holder as to such authority; and (2) prior to the Closing
Date, any lienholder over shares of Ezlogin Capital Stock or Ezlogin Options
shall have agreed to be subject to the transfer restrictions and the Repurchase
Option set forth in Section 3 hereof, or Holder shall have discharged any such
lien.
The execution, delivery, and performance of this Agreement by Holder and
each of the other Transaction Agreements to which Holder is or is to become a
party will not violate any other agreement to which Holder is a party, other
than any violation that would not prevent, materially alter or delay any of the
transactions contemplated by this Agreement or any such other Transaction
Agreement or result in any cost to 724 Solutions or the Surviving Corporation.
No consent, approval, authorization, order, registration or qualification of or
by any person is required in connection with the execution, delivery and
performance of the Transaction Agreements by Holder or the consummation of the
transactions contemplated hereby or thereby, other than any consent, approval,
authorization, order, registration or qualification that would not prevent or
materially alter or delay any of the transactions contemplated by this Agreement
or any such other Transaction Agreement.
If Holder is married, and the 724 Solutions Shares or Assumed Options do or
will constitute community property, this Agreement and each of the other
Transaction Agreements to which Holder is or is to become a party has been duly
authorized, executed and delivered by, and constitutes a valid and binding
agreement of, Holder's spouse, enforceable against such person in accordance
with its terms, subject to laws of general application relating to bankruptcy,
insolvency, reorganization, moratorium, and other similar laws and equitable
C-1-2
principles relating to or limiting creditors' rights generally, general equity
principles, and limitations upon rights to indemnity.
Holder has not, at any time, taken or been the subject of any action that
may have an adverse effect on his ability to comply with or perform Holder's
covenants or obligations under any of the Transaction Agreements to which Holder
is or is to become a party.
There is no private or governmental action, suit, proceeding, claim,
arbitration or investigation (collectively, a "Proceeding") pending, and no
person has threatened to commence any Proceeding, that may have a material
adverse effect on the ability of Holder to either comply with or perform his
covenants or obligations under any of the Transaction Agreements to which he is
or is to become a party. To the Knowledge of Holder, no event has occurred, and
no claim, dispute or other condition or circumstance exists, that might
reasonably be expected to directly or indirectly give rise to or serve as a
basis for the commencement of any such Proceeding.
SECURITIES EXEMPTION.
Holder acknowledges that 724 Solutions shall have no obligation, except as
otherwise provided in the Registration Rights Agreement, to register the
724 Solutions Shares under the Securities Act or any state securities laws or to
take any action that would make available any exemption from the registration
requirements of such laws.
Holder further acknowledges that in the event the Permit is not issued, the
Merger may be consummated and 724 Solutions Shares shall be issued in connection
therewith pursuant to an exemption from the registration requirements of the
Securities Act provided by Section 4(2) thereof. If the Permit is not issued
promptly following the Fairness Hearing, Holder shall execute and deliver to
724 Solutions, promptly upon request, a Registration Rights Agreement and shall
take such other reasonable steps as may be requested by 724 Solutions in
connection with such exemption and issuance. Holder understands that the
exemption pursuant to Section 4(2) of the Securities Act depends upon, among
other things, the bona fide nature of Holder's investment intent as expressed in
the Registration Rights Agreement.
MERGER AGREEMENT; DISCLOSURE DOCUMENTS. Holder has received and carefully
reviewed copies of the Transaction Agreements (including the Escrow Agreement),
together with all exhibits and schedules thereto, and has had the opportunity to
discuss such Agreements with counsel and other advisors.
WAIVER OF CERTAIN CLAIMS. At the Effective Time of the Merger, Holder
waives any and all claims, demands, damages, actions, causes of action, suits or
proceedings, fixed or contingent, matured or unmatured, of whatever nature,
character, type of description that have been or in the future might be asserted
by Holder (or by any other person as successor to Holder) against Ezlogin or
against 724 Solutions or Merger Sub, or any of their respective predecessors,
successors or assigns, any past or present, direct or indirect, partner,
subsidiary, or affiliated entity or corporation, or any past or present
employee, agent, representative, attorney, officer, director or stockholder of
any of them acting in its capacity as such an employee, agent, representative,
attorney, officer, director or stockholder, arising out of facts or
circumstances occurring at any time on or prior to the date hereof and relating
to such person's ownership of Ezlogin Capital Stock or any rights or options to
acquire Ezlogin Capital Stock (either beneficially or of record), or any
federal, state or local law, statute or regulation, at law or in equity, or any
act or omission on the part of such parties, other than matters relating to
Dissenting Shares.
TRANSFER RESTRICTIONS.
Holder may not, directly or indirectly:
(i) offer, sell, assign, transfer, encumber, pledge, contract to sell,
sell any option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant to purchase, lend, or otherwise
dispose of, any 724 Solutions Shares or any securities convertible into or
exercisable or exchangeable for 724 Solutions Shares,
(ii) or publicly disclose the intention to make any such offer, sale,
assignment, transfer, pledge, grant or disposal,
C-1-3
(collectively "Transfer") its 724 Solutions Shares received in connection with
the Merger or upon the exercise of Assumed Options unless the restrictions under
this SECTION 2 and SECTION 3 have been released or complied with.
Notwithstanding the foregoing, Holder may Transfer such 724 Solutions Shares
(i) if required by court order or by operation of law or in connection with the
settlement of such holder's estate, (ii) to a family member, (iii) to a trust
controlled by or for the benefit of Holder or a family member solely for tax or
estate planning purposes, or (iv) to any corporation, partnership, limited
liability company or other entity that, directly or indirectly, controls or is
controlled by Holder, provided that in each of (i), (ii), (iii) and
(iv) transferee agrees in writing to assume all the obligations of Holder under
this Agreement and the other Transaction Agreements. In addition, Holder may
Transfer up to one-half of the 724 Solutions Shares it receives in the Merger
other than Repurchase Shares (which may not be transferred until they lose their
status as such) to his or her ex-spouse (or, if such Holder is a trust, to the
ex-spouse of an affiliate of such Holder) pursuant to a valid, court approved
divorce decree or in connection with a valid and enforceable divorce settlement
(provided, that for purposes of this Agreement a divorce settlement shall be
deemed to be valid and enforceable upon filing with the court), provided that
such transferee agrees to be bound by a Non-Employee Holder Agreement in the
form attached the Merger Agreement, in which case such shares shall be subject
to such Agreement rather than this Agreement.
IPO Lock-Up. Until July 25, 2000, Holder will not:
(i) Transfer any 724 Solutions Shares or any securities convertible into
or exercisable or exchangeable for 724 Solutions Shares;
(ii) exercise any and all rights to request or demand registration
pursuant to the Securities Act of 1933, as amended, of the 724 Solutions
Shares; or
(iii) enter into any swap or other arrangement that Transfers to another,
in whole or in part, any of the economic consequences of ownership of the
724 Solutions Shares,
whether any such transaction described in clause (i), (ii) or (iii) above is to
be settled by delivery of 724 Solutions Shares, such other securities, in cash
or otherwise (the "IPO Lock-Up"). None of the above provisions shall be deemed
to prohibit Holder from exercising an option or a warrant to purchase
724 Solutions Shares.
Notwithstanding the foregoing, until July 25, 2000, Holder shall be
permitted to Transfer:
(i) 724 Solutions Shares or securities convertible into or exercisable
or exchangeable for 724 Solutions Shares in a gratuitous Transfer (including
a Transfer into a Registered Retirement Savings Plan), so long as the
recipient of such securities executes a written agreement stating that such
recipient will be bound by the provisions of this Agreement, and
(ii) shares of 724 Solutions Common Stock purchased on or after the date
hereof in the open market.
In addition, if Holder is a corporation, partnership, limited liability
company or other entity, Holder shall be permitted during the period set forth
above to Transfer such securities to any entity that controls Holder, that is
controlled by Holder, or that is under common control with Holder, so long as
the recipient of such securities executes a written agreement stating that it
will be bound by the provisions of this Agreement. Notwithstanding the
foregoing, the IPO Lock-Up shall be of no further force and effect if Credit
Suisse First Boston Corporation ("CSFB") shall have consented to at least 50% of
the shares of 724 Solutions Common Stock subject to the lock-up agreement among
CSFB and the holders of shares of 724 Solutions Common Stock in connection with
724 Solutions' initial public offering (the "Lock-Up Agreement") taking any
action otherwise prohibited thereby. The foregoing release from the IPO-Lockup
shall not apply to a secondary offering of 724 Solutions Common Stock.
ADDITIONAL EMPLOYEE LOCK-UP. Holder will not Transfer any 724 Solutions
Shares until March 30, 2001 (the date one year after the Execution Date of the
Original Merger Agreement), provided that 25% of the 724 Solutions Shares shall
be released from this restriction on July 25, 2000 (or such earlier date as the
IPO Lock-Up shall terminate) provided, however, that any such released shares
may remain subject to the Repurchase Option. This restriction applies whether or
not Holder remains an employee of the Surviving Company.
C-1-4
COMPLIANCE WITH LAWS. Holder will observe and comply with the Securities
Act and the General Rules and Regulations thereunder, as now in effect and as
from time to time amended and including those hereafter enacted or promulgated,
in connection with any Transfer of the 724 Solutions Shares or any part thereof.
OTHER TRANSFER RESTRICTIONS. Holder may not Transfer any 724 Solutions
Shares until the earlier of (i) January 1, 2001 or (ii) the date 724 Solutions'
current employees are entitled to sell their shares of 724 Solutions Common
Stock.
AUTHORIZATION. To the extent consistent with this Agreement, Holder
authorizes 724 Solutions to cause 724 Solutions' transfer agent to decline
Transfer and/or to note stop-transfer restrictions on the transfer books and
records of 724 Solutions with respect to any 724 Solutions Shares received by
Holder pursuant to the Merger and, in the case of any such shares for which
Holder is the beneficial owner but not the record holder, agrees to cause the
record holder to authorize 724 Solutions to cause the transfer agent to decline
to Transfer and/or to note stop-transfer restrictions on such books and records
with respect to such shares.
EXERCISE OF ASSUMED OPTIONS. Holder hereby acknowledges and agrees that any
shares of 724 Solutions Common Stock issued to Holder upon the exercise of any
Assumed Option shall be subject to this Agreement and the Merger Agreement and
shall be treated as 724 Solutions Shares in all respects hereunder.
REPURCHASE OPTION.
TRANSFER RESTRICTIONS. Except as otherwise provided herein, Holder shall
not Transfer any Repurchase Shares prior to the date when the Holder shall
become vested in such Repurchase Shares pursuant to this Section 3. Any attempt
to Transfer Repurchase Shares in violation of this Section 3 shall be null and
void and shall be disregarded by 724 Solutions.
REPURCHASE SHARES. Each Repurchase Share shall be subject to the Repurchase
Option in favor of 724 Solutions set forth in the Shareholders' Stock Option
Agreement issued under the Ezlogin Stock Option Plan, as if all such Repurchase
Option was set forth in full in the body of this Agreement. The Repurchase Price
for the Repurchase Shares shall be adjusted by the Exchange Ratio.
ASSIGNMENT OF REPURCHASE OPTION. The Repurchase Option may be assigned by
724 Solutions to any third party.
DELIVERY OF REPURCHASE SHARES. Delivery of any Repurchase Shares that are
subject to vesting shall be in book entry form only until such vesting
restrictions have lapsed, following which time such shares shall be delivered
promptly to the Holder.
SECTION 83(B) ELECTION. Holder is responsible determining whether to make
an election under Section 83(b) of the Internal Revenue Code or similar
provision of state law upon receipt of the Repurchase Shares, and for making
such election if applicable.
ADDITIONAL COVENANTS.
OBLIGATIONS; INDEMNIFICATION. Holder will perform all of the obligations of
the "Shareholders," "Optionholders" and "Holders," as applicable, described in
the Merger Agreement and the other Transaction Agreements, including without
limitation the Escrow Agreement and the obligation to indemnify 724 Solutions
Indemnitees and the Shareholders' Agent as provided in Article VIII of the
Merger Agreement. Holder acknowledges and agrees that certain of the
724 Solutions Shares received by Holder in connection with the Merger and, if
applicable, certain of the Assumed Options and certain of the 724 Solutions
Shares issued upon exercise thereof, will be subject to an escrow, or subject to
cancellation, as applicable, as security for the indemnification obligations of
the Holders described in the Merger Agreement. Holder further acknowledges and
agrees that such 724 Solutions Shares may be delivered to 724 Solutions and, if
applicable, Assumed Options may be cancelled by 724 Solutions in order to
compensate 724 Solutions for certain damages as further set forth in the Merger
Agreement and the Escrow Agreement.
RIGHTS OF FIRST REFUSAL, ETC. Holder hereby waives any rights Holder may
have of first refusal, rights of co-sale, registration rights, information
rights, preemptive rights, rights of redemption or repurchase, board observer
C-1-5
rights and similar rights of Holder under any agreement, arrangement or
understanding applicable to the Ezlogin Shares as the same may apply to the
execution and delivery of the Merger Agreement and the consummation of the
Merger and the other transactions contemplated by the Merger Agreement.
LEGEND. All certificates representing the 724 Solutions Shares deliverable
to Holder pursuant to the Merger Agreement and any certificates subsequently
issued with respect thereto or in substitution therefor, shall bear a legend
substantially as set forth in Section 1.11 of the Merger Agreement.
SHAREHOLDERS' AGENT.
Holder irrevocably authorizes, directs and appoints Xxxxxxxxx Xxxxxxxxx (the
"Shareholders' Agent") to act as the sole and exclusive agent, attorney-in-fact
and representative of Holder and Holder's heirs, representatives and successors
in connection with the Merger Agreement, as provided in Article VIII of the
Merger Agreement.
Without limiting the generality of the foregoing, with respect to the
matters covered by or related to Article VIII of the Merger Agreement, the
Escrow Agreement and this Agreement:
Holder irrevocably relinquishes his or her right to act independently
and other than through the Shareholders' Agent with respect to such subject
matter (except with respect to appointment of a successor Shareholders'
Agent);
Holder shall not have any right to institute any suit, action or
proceeding against Ezlogin, 724 Solutions or the Escrow Agent with respect
to any such matter, any such right being irrevocably and exclusively
delegated to the Shareholders' Agent; and
Holder agrees that any notice delivered to 724 Solutions or a 724
Solutions Indemnified Person by Holder other than through the Shareholders'
Agent shall be of no effect, and each notice delivered by 724 Solutions or
any other 724 Solutions Indemnified Person to the Shareholders' Agent shall
be effective as against Holder; provided that 724 Solutions and the other
724 Solutions Indemnified Persons may elect at their sole discretion to give
effect to any notice delivered by Holder.
In the event of the death, physical or mental incapacity or resignation of
the Shareholders' Agent, Holder shall promptly (and in any event within thirty
(30) days of notice of such event) appoint a successor Shareholders' Agent.
MISCELLANEOUS.
AMENDMENT AND MODIFICATION. This Agreement may not be modified, amended,
altered or supplemented except by the execution and delivery of a written
agreement executed by the parties hereto.
ASSIGNMENT. This Agreement will be binding upon, and inure to the benefit
of, the persons or entities who are permitted, by the terms of this Agreement,
to be successors, assigns, transferees (except as otherwise provided herein) and
personal representatives of the respective parties hereto. If any transferee of
any Holder shall acquire 724 Solutions Shares, in any manner, whether by
operation of law or otherwise, such 724 Solutions Shares shall be held subject
to all of the terms of this Agreement, and by taking and holding such 724
Solutions Shares such person shall be conclusively deemed to have agreed to be
bound by and to perform all of the terms and provisions of this Agreement and
such person shall be entitled to receive the benefits hereof.
COSTS OF ENFORCEMENT. If any party to this Agreement seeks to enforce its
rights under this Agreement by legal proceedings or otherwise, the
non-prevailing party will pay all costs and expenses incurred by the prevailing
party, including, without limitation, all reasonable attorneys' and experts'
fees.
COUNTERPART EXECUTION; FACSIMILE DELIVERY. This Agreement may be executed
in several counterparts and delivered by facsimile, each of which shall be an
original, but all of which together shall constitute one and the same agreement.
EFFECT OF HEADINGS. The section headings herein are for convenience only
and shall not affect the construction or interpretation of this Agreement.
C-1-6
ENTIRE AGREEMENT. This Agreement and the exhibits hereto contains the
entire understanding of the parties in respect of the subject matter hereof, and
supersede all prior negotiations and understandings between the parties with
respect to such subject matter.
FURTHER ASSURANCES. Holder agrees to execute and deliver, before or after
the Effective Time, any additional documents reasonably necessary or desirable
to carry out the purposes and intent of this Agreement.
GOVERNING LAW. This Agreement shall be governed by and construed,
interpreted and enforced in accordance with the laws of the State of California,
without regard to conflict of laws. Each of the parties hereto irrevocably
consents to the jurisdiction of any court located within the State of New York
or the State of California, in connection with any matter based upon or arising
out of this Agreement or the matters contemplated herein, agrees that process
may be served upon them in any manner authorized by the laws of the State of
California for such persons and waives and covenants not to assert or plead any
objection that they might otherwise have to such jurisdiction and such process.
EACH OF THE PARTIES IRREVOCABLY WAIVES THE RIGHT TO A JURY TRIAL IN CONNECTION
WITH ANY LEGAL PROCEEDING RELATING TO THIS AGREEMENT AND THE OTHER TRANSACTION
AGREEMENTS OR THE ENFORCEMENT OF ANY PROVISION OF THIS AGREEMENT OR OTHER
TRANSACTION AGREEMENTS.
NOTICES. All notices, requests, demands or other communications that are
required or may be given pursuant to the terms of this Agreement shall be in
writing and shall be deemed to have been duly given if delivered by hand or
mailed by registered or certified mail, postage prepaid, as follows:
If to Holder, at the address set forth below Holder's signature at the end
hereof.
with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000-0000
Attn: Xxxxx X. Xxxxxxx, Esq.
Xxxxxxx X. Xxxx, Esq.
Fax.: (000) 000-0000
Phone: (000) 000-0000
If to 724 Solutions:
724 Solutions Inc.
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx X0X 0X0
Xxxxxx
Attn: Xxx Xxxxxx, Legal Counsel
Fax: (000) 000-0000
Phone: (000) 000-0000
with a copy to:
Xxxxxxxx & Xxxxxxxx LLP
000 Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
Fax: (000) 000-0000
Phone: (000) 000-0000
C-1-7
and
Xxxxxx Xxxxxxx
Suite 2100, P. O. Box 141
Royal Trust Tower, TD Centre
Toronto, Ontario M5K 1H1
Attn: Xxxxx Xxxxxx
Fax: (000) 000-0000
Phone: (000) 000-0000
or to such other address as any party hereto may designate for itself by notice
given as herein provided.
SEVERABILITY. If any provision of this Agreement is held to be
unenforceable for any reason, such provision and all other related provisions
shall be modified rather than voided, if possible, in order to achieve the
intent of the parties to this Agreement to the extent possible. In any event,
all other unrelated provisions of this Agreement shall be deemed valid and
enforceable to the full extent.
SPECIFIC PERFORMANCE; INJUNCTIVE RELIEF. The parties hereto acknowledge
that 724 Solutions will be irreparably harmed and that there will be no adequate
remedy at law for a violation of any of the covenants or agreements of Holder
set forth herein. Therefore, it is agreed that, in addition to any other
remedies that may be available to 724 Solutions upon any such violation, 724
Solutions shall have the right to enforce such covenants and agreements by
specific performance, injunctive relief or by any other means available to 724
Solutions at law or in equity and Holder hereby waives any and all defenses
which could exist in its favor in connection with such enforcement and waives
any requirement for the security or posting of any bond in connection with such
enforcement.
TERMINATION. This Agreement may be terminated by either Holder or 724
Solutions, if the Closing has not occurred on or prior to June 30, 2000, or such
other date, if any, as 724 Solutions and Holder shall agree upon; provided, that
the party seeking to terminate this Agreement shall not have breached in any
material respect its obligations under this Agreement.
AMENDMENT AND RESTATEMENT. To the extent that Holder executed and delivered
a Employee Shareholders' Agreement in connection with the Original Merger
Agreement, this Agreement amends and restates the original Employee
Shareholders' Agreement executed and delivered by such Holder and supersedes and
replaces such original Employee Shareholders' Agreement in its entirety.
[signature page follows]
C-1-8
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
724 SOLUTIONS INC.
By: __________________________________
Its
HOLDER:
______________________________________
Name: _______________________________
Address: _____________________________
________________________
________________________
Fax: ______________________________
[COUNTERPART SIGNATURE PAGE TO EMPLOYEE HOLDERS' AGREEMENT]
C-1-9
SCHEDULE 1
OWNERSHIP OF EZLOGIN CAPITAL STOCK
Common Stock:
------------------------------------
Series A Preferred Stock:
------------------------------------
Series B Preferred Stock:
------------------------------------
Stock Options
------------------------------------
State or Country of Residence:
------------------------------------
Other Beneficial Owners:
Liens and Encumbrances:
C-1-10
EXHIBIT 1
CERTIFICATE OF TRUST
C-1-11
EXHIBIT 2
INCUMBENCY CERTIFICATE
C-1-12
EXHIBIT C-2
NON-EMPLOYEE SHAREHOLDERS' AGREEMENT
THIS NON-EMPLOYEE SHAREHOLDERS' AGREEMENT (this "Agreement") is entered into
as of , 2000 by and between 724 Solutions Inc., a corporation
amalgamated under the laws of Ontario ("724 Solutions"), and the undersigned
(the "Shareholder").
RECITALS
A. This Agreement is entered into in connection with the Agreement and Plan
of Merger and Reorganization, dated as of March 30, 2000, among 724 Solutions,
Ezlogin, Merger Sub and Shareholders' Agent, as the same may be amended (the
"Merger Agreement"), pursuant to which Merger Sub will be merged with and into
Ezlogin. Capitalized terms used in this Agreement and not otherwise defined
herein shall have the meanings ascribed to them in the Merger Agreement.
B. Shareholder holds and/or has options to acquire shares of Ezlogin
Capital Stock.
C. Pursuant to the Merger Agreement, at the Effective Time, each
outstanding share of Ezlogin Capital Stock will be converted into the right to
receive shares of 724 Solutions Common Stock (the "724 Solutions Shares") and
cash in lieu of any fractional shares thereof.
D. It is currently contemplated that the 724 Solutions Shares will be issued
to the Shareholder pursuant to an exemption from the registration requirements
of the Securities Act provided by Section 3(a)(10) thereof, pursuant to a permit
(the "Permit") to be issued by the California Commissioner of Corporations after
a Fairness Hearing. In the event the Permit is not issued following the Fairness
Hearing, the 724 Solutions Shares shall be issued in a private placement as
"restricted securities" as defined under Rule 144 of the Securities Act.
E. The 724 Solutions Shares issued in the Merger shall be subject to
certain contractual transfer restrictions, including a lock-up.
F. Shareholder is entering into this Agreement as a material inducement to,
and in consideration of, 724 Solutions' willingness to enter into the Merger
Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises, representations,
warranties, covenants and conditions set forth in this Agreement, the parties
mutually agree as follows:
1. REPRESENTATIONS, WARRANTIES AND COVENANTS. Shareholder hereby
represents, warrants and covenants to 724 Solutions as follows:
(a) Ownership of Ezlogin Capital Stock. Shareholder now owns and will own
immediately prior to the Effective Time (including shares held both
beneficially and of record and shares held either beneficially or of
record) such number of shares of Ezlogin Capital Stock as is set
forth on Schedule 1. Shareholder does not directly or indirectly own,
either beneficially or of record, any shares of capital stock of
Ezlogin or rights to purchase or acquire or otherwise receive any
shares of Ezlogin Capital Stock or other securities of Ezlogin,
whether vested, unvested or subject to any other contingency, other
than the shares of Ezlogin Capital Stock listed on Schedule 1.
(b) Absence of Liens and Encumbrances. Except as provided on Schedule 1
attached hereto, the shares of Ezlogin Capital Stock owned by
Shareholder (including shares held both beneficially and of record
and shares held either beneficially or of record) are now and at the
Effective Time will be free and clear of all liens and encumbrances.
None of the liens or encumbrances listed on Schedule 1 will prevent,
delay or otherwise interfere with the conversion of shares in the
Merger. Prior to Closing, Shareholder shall obtain any such xxxx
xxxxxx'x agreement in writing to be bound by the terms of this
Agreement and the other Transaction Agreements, or in the absence of
such written agreement, Shareholder shall discharge the lien prior to
Closing.
C-2-1
(c) Exercise of Options; Conversion of Preferred Stock. Immediately prior
to the Effective Time of the Merger, Shareholder covenants to
exercise its options, if any, to acquire Ezlogin Common Stock and to
convert any Ezlogin Preferred Stock into Ezlogin Common Stock.
(d) AUTHORITY, ENFORCEABILITY.
(i) Shareholder has the authority, legal capacity and financial
capability to enter into, execute, deliver and perform his
obligations under this Agreement and each of the other documents
contemplated to be executed by Shareholder in connection with
the Merger Agreement, including, if applicable, the Voting
Agreement, and to perform the obligations of the "Shareholders"
under Merger Agreement, the Escrow Agreement and the other
Transaction Agreements. This Agreement and each of the other
Transaction Agreements to which Shareholder is or is to become a
party constitutes, or when executed and delivered by Shareholder
will constitute, a valid and binding obligation of Shareholder
enforceable against Shareholder in accordance with its terms,
subject to laws of general application relating to bankruptcy,
insolvency, reorganization, moratorium, and other similar laws
and equitable principles relating to or limiting creditors'
rights generally, general equity principles, and limitations
upon rights to indemnity.
(ii) Shareholder has delivered evidence, reasonably satisfactory to
724 Solutions that (1) Shareholder (if not an individual) has
the authority and power to execute this Agreement and the
individual executing this Agreements has the authority to do so
on the Shareholder's behalf; provided that the execution and
delivery of a Certificate of Trust by a Shareholder that is a
trust, and an Incumbency Certificate by a Shareholder that is a
corporate entity or partnership (in the forms attached as
Exhibits 1 and 2 hereto) shall be deemed to satisfy this
condition; but provided further, that notwithstanding the
above, in the event 724 Solutions has a reasonable belief that
such certificate is materially untrue or contains a material
misstatement of fact, 724 Solutions may demand additional
reasonable evidence from such Shareholder as to such authority;
and (2) prior to the Closing Date, any lienholder over shares
of Ezlogin Capital Stock shall have agreed to be subject to the
transfer restrictions or Shareholder shall have discharged any
such lien.
(iii) The execution, delivery, and performance of this Agreement by
Shareholder and each of the other Transaction Agreements to
which Shareholder is or is to become a party will not violate
any other agreement to which Shareholder is a party, other than
any violation that would not prevent, materially alter or delay
any of the transactions contemplated by this Agreement or any
such other Transaction Agreement or result in any cost to
724 Solutions or the Surviving Corporation. No consent,
approval, authorization, order, registration or qualification
of or by any person is required in connection with the
execution, delivery and performance of the Transaction
Agreements by Shareholder or the consummation of the
transactions contemplated hereby or thereby, other than any
consent, approval, authorization, order, registration or
qualification that would not prevent or materially alter or
delay any of the transactions contemplated by this Agreement or
any such other Transaction Agreement.
(iv) If Shareholder is married, and the 724 Solutions Shares
constitute community property, this Agreement and each of the
other Transaction Agreements to which Shareholder is or is to
become a party has been duly authorized, executed and delivered
by, and constitutes a valid and binding agreement of,
Shareholder's spouse, enforceable against such person in
accordance with its terms, subject to laws of general
application relating to bankruptcy, insolvency, reorganization,
moratorium, and other similar laws and equitable principles
relating to or limiting creditors' rights generally, general
equity principles, and limitations upon rights to indemnity.
(v) Shareholder has not, at any time, taken or been the subject of
any action that may have an adverse effect on his ability to
comply with or perform Shareholder's covenants or obligations
under any of the Transaction Agreements to which Shareholder is
or is to become a party.
C-2-2
(vi) There is no private or governmental action, suit, proceeding,
claim, arbitration or investigation (collectively, a
"Proceeding") pending, and no person has threatened to commence
any Proceeding, that may have a material adverse effect on the
ability of Shareholder to either comply with or perform his
covenants or obligations under any of the Transaction
Agreements to which he is or is to become a party. To the
Knowledge of Shareholder, no event has occurred, and no claim,
dispute or other condition or circumstance exists, that might
reasonably be expected to directly or indirectly give rise to
or serve as a basis for the commencement of any such
Proceeding.
(e) SECURITIES EXEMPTION.
(i) Shareholder acknowledges that 724 Solutions shall have no
obligation, except as otherwise provided in the Registration
Rights Agreement, to register the 724 Solutions Shares under the
Securities Act or any state securities laws or to take any
action that would make available any exemption from the
registration requirements of such laws.
(ii) Shareholder further acknowledges that in the event the Permit
is not issued, the Merger may be consummated and 724 Solutions
Shares issued in connection therewith pursuant to an exemption
from the registration requirements of the Securities Act
provided by Section 4(2) thereof. If the Permit is not issued
promptly following the Fairness Hearing, Shareholder shall
execute and deliver to 724 Solutions, promptly upon request, a
Registration Rights Agreement and shall take such other
reasonable steps as may be requested by 724 Solutions in
connection with such exemption and issuance. Shareholder
understands that the exemption pursuant to Section 4(2) of the
Securities Act depends upon, among other things, the bona fide
nature of Shareholder's investment intent as expressed in the
Registration Rights Agreement.
(f) MERGER AGREEMENT; DISCLOSURE DOCUMENTS. Shareholder has received and
carefully reviewed copies of the Transaction Agreements (including
the Escrow Agreement), together with all exhibits and schedules
thereto, and has had the opportunity to discuss such Agreements with
counsel and other advisors.
(g) WAIVER OF CERTAIN CLAIMS. At the Effective Date of the Merger,
Shareholder waives any and all claims, demands, damages, actions,
causes of action, suits or proceedings, fixed or contingent, matured
or unmatured, of whatever nature, character, type of description that
have been or in the future might be asserted by Shareholder (or by
any other person as successor to Shareholder) against Ezlogin or
against 724 Solutions or Merger Sub, or any of their respective
predecessors, successors or assigns, any past or present, direct or
indirect, partner, subsidiary, or affiliated entity or corporation,
or any past or present employee, agent, representative, attorney,
officer, director or stockholder of any of them acting in its
capacity as such an employee, agent, representative, attorney,
officer, director or stockholder, arising out of facts or
circumstances occurring at any time on or prior to the date hereof
and relating to such person's ownership of Ezlogin Capital Stock or
any rights or options to acquire Ezlogin Capital Stock (either
beneficially or of record), or any federal, state or local law,
statute or regulation, at law or in equity, or any act or omission on
the part of such parties, other than matters relating to Dissenting
Shares.
2. TRANSFER RESTRICTIONS. Shareholder may not directly or indirectly
offer, sell, assign, transfer, encumber, pledge, contract to sell, sell
any option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant to purchase, lend, or otherwise
dispose of, any 724 Solutions Shares or any securities convertible into
or exercisable or exchangeable for 724 Solutions Shares or publicly
disclose the intention to make any such offer, sale, assignment,
transfer, pledge, grant or disposal ("Transfer") its 724 Solutions Shares
received in the Merger unless the restrictions under this Section 2 have
been released or complied with. Notwithstanding the foregoing,
Shareholder may Transfer such 724 Solutions Shares (i) if required by
court order or by operation of law or in connection with the settlement
of such holder's estate, (ii) to a family member, (iii) to a trust
controlled by or for the benefit of a Shareholder solely for tax or
estate planning purposes, or (iv) to any corporation, partnership,
limited liability company or other entity that, directly or indirectly,
controls or is
C-2-3
controlled by the Shareholder, provided that in each of (i), (ii),
(iii) and (iv) transferee agrees in writing to assume all the obligations
of Shareholder under this Agreement and the other Transaction Agreements.
(a) IPO LOCK-UP. Until July 25, 2000, Shareholder will not (i) Transfer
any 724 Solutions Shares or any securities convertible into or
exercisable or exchangeable for 724 Solutions Shares; (ii) exercise
any and all rights to request or demand registration pursuant to the
Securities Act of 1933, as amended, of the 724 Solutions Shares; or
(iii) enter into any swap or other arrangement that Transfers to
another, in whole or in part, any of the economic consequences of
ownership of the 724 Solutions Shares, whether any such transaction
described in clause (i), (ii) or (iii) above is to be settled by
delivery of 724 Solutions Shares, such other securities, in cash or
otherwise. None of the above provisions shall be deemed to prohibit
the Shareholder from exercising an option or a warrant to purchase
724 Solutions Shares. Notwithstanding the foregoing, until July 25,
2000, the Shareholder shall be permitted to Transfer
(i) 724 Solutions Shares or securities convertible into or
exercisable or exchangeable for 724 Solutions Shares in a gratuitous
Transfer (including a Transfer into a Registered Retirement Savings
Plan) so long as the recipient of such securities executes a written
agreement stating that such recipient will be bound by the provisions
of this Agreement and (ii) shares of 724 Solutions Common Stock
purchased on or after the date hereof in the open market. In
addition, if the Shareholder is a corporation, partnership, limited
liability company or other entity, the Shareholder shall be permitted
during the period set forth above to Transfer such securities to any
entity that controls the Shareholder, that is controlled by the
Shareholder, or that is under common control with the Shareholder, so
long as the recipient of such securities executes a written agreement
stating that it will be bound by the provisions of this Agreement
(the "IPO Lock-Up"). Notwithstanding the foregoing, the IPO Lock-Up
shall be of no further force and effect if Credit Suisse First Boston
Corporation ("CSFB") shall have consented to at least 20% of the
shares of 724 Solutions Common Stock subject to the lock-up agreement
among CSFB and the holders of shares of 724 Solutions Common Stock in
connection with 724 Solutions' initial public offering (the "Lock-Up
Agreement") taking any action otherwise prohibited thereby. The
foregoing release from the IPO-Lockup shall not apply to a secondary
offering of 724 Solutions Common Stock.
(b) COMPLIANCE WITH LAWS. Shareholder will observe and comply with the
Securities Act and the General Rules and Regulations thereunder, as
now in effect and as from time to time amended and including those
hereafter enacted or promulgated, in connection with any Transfer of
the 724 Solutions Shares or any part thereof.
(c) AUTHORIZATION. To the consistent with this Agreement, Shareholder
authorizes 724 Solutions to cause 724 Solutions' transfer agent to
decline Transfer and/or to note stop-transfer restrictions on the
transfer books and records of 724 Solutions with respect to any
724 Solutions Shares received by the Shareholder pursuant to the
Merger and, in the case of any such shares for which Shareholder is
the beneficial owner but not the record holder, agrees to cause the
record holder to authorize 724 Solutions to cause the transfer agent
to decline to Transfer and/or to note stop-transfer restrictions on
such books and records with respect to such shares.
3. ADDITIONAL COVENANTS.
(a) OBLIGATIONS; INDEMNIFICATION. Shareholder will perform all of the
obligations of the "Shareholders" described in the Merger Agreement
and the other Transaction Agreements, including without limitation
the Escrow Agreement and the obligation to indemnify 724 Solutions
Indemnitees and the Shareholder Agent as provided in Article VIII of
the Merger Agreement.
(b) RIGHTS OF FIRST REFUSAL, ETC. Shareholder hereby waives any rights
Shareholder may have of first refusal, rights of co-sale,
registration rights, information rights, preemptive rights, rights of
redemption or repurchase, board observer rights and similar rights of
Shareholder under any agreement, arrangement or understanding
applicable to the Ezlogin Shares as the same may apply to the
execution and delivery of the Merger Agreement and the consummation
of the Merger and the other transactions contemplated by the Merger
Agreement.
C-2-4
(c) LEGEND. All certificates representing the 724 Solutions Shares
deliverable to Shareholder pursuant to the Merger Agreement and any
certificates subsequently issued with respect thereto or in
substitution therefor, shall bear a legend substantially as set forth
in Section 1.11 of the Merger Agreement.
4. SHAREHOLDER AGENT.
(a) Shareholder irrevocably authorizes, directs and appoints Xxxxxxxxx
Xxxxxxxxx (the "Shareholder Agent") to act as the sole and exclusive
agent, attorney-in-fact and representative of Shareholder and
Shareholder's heirs, representatives and successors in connection
with the Merger Agreement, as provided in Article VIII of the Merger
Agreement.
(b) Without limiting the generality of the foregoing, with respect to the
matters covered by or related to Article VIII of the Merger Agreement
and the Escrow Agreement:
(i) Shareholder irrevocably relinquishes his or her right to act
independently and other than through the Shareholder Agent with
respect to such subject matter (except with respect to
appointment of a successor Shareholder Agent), and
(ii) Shareholder shall not have any right to institute any suit,
action or proceeding against Ezlogin, 724 Solutions or the
Escrow Agent with respect to any such matter, any such right
being irrevocably and exclusively delegated to the Shareholder
Agent.
(iii) Shareholder agrees that any notice delivered to 724 Solutions
or a 724 Solutions Indemnified Person by Shareholder other than
through the Shareholder Agent shall be of no effect, and each
notice delivered by 724 Solutions or any other 724 Solutions
Indemnified Person to the Shareholder Agent shall be effective
as against Shareholder; provided that 724 Solutions and the
other 724 Solutions Indemnified Persons may elect at their sole
discretion to give effect to any notice delivered by
Shareholder.
(c) In the event of the death, physical or mental incapacity or
resignation of the Shareholder Agent, Shareholder shall promptly (and
in any event within thirty (30) days of notice of such event) appoint
a successor Shareholder Agent.
5. MISCELLANEOUS.
(a) AMENDMENT AND MODIFICATION. This Agreement may not be modified,
amended, altered or supplemented except by the execution and delivery
of a written agreement executed by the parties hereto.
(b) ASSIGNMENT. This Agreement will be binding upon, and inure to the
benefit of, the persons or entities who are permitted, by the terms
of this Agreement, to be successors, assigns, transferees and
personal representatives of the respective parties hereto. If any
transferee of any Shareholder shall acquire 724 Solutions Shares, in
any manner, whether by operation of law or otherwise, such
724 Solutions Shares shall be held subject to all of the terms of
this Agreement, and by taking and holding such 724 Solutions Shares
such person shall be conclusively deemed to have agreed to be bound
by and to perform all of the terms and provisions of this Agreement
and such person shall be entitled to receive the benefits hereof.
(c) COSTS OF ENFORCEMENT. If any party to this Agreement seeks to
enforce its rights under this Agreement by legal proceedings or
otherwise, the non-prevailing party will pay all costs and expenses
incurred by the prevailing party, including, without limitation, all
reasonable attorneys' and experts' fees.
(d) COUNTERPART EXECUTION; FACSIMILE DELIVERY. This Agreement may be
executed in several counterparts and delivered by facsimile, each of
which shall be an original, but all of which together shall
constitute one and the same agreement.
(e) EFFECT OF HEADINGS. The section headings herein are for convenience
only and shall not affect the construction or interpretation of this
Agreement.
C-2-5
(f) ENTIRE AGREEMENT. This Agreement and the exhibits hereto contains
the entire understanding of the parties in respect of the subject
matter hereof, and supersede all prior negotiations and
understandings between the parties with respect to such subject
matter.
(g) FURTHER ASSURANCES. Shareholder agrees to execute and deliver,
before or after the Effective Time, any additional documents
reasonably necessary or desirable to carry out the purposes and
intent of this Agreement.
(h) GOVERNING LAW. This Agreement shall be governed by and construed,
interpreted and enforced in accordance with the laws of the State of
California, without regard to conflict of laws. Each of the parties
hereto irrevocably consents to the jurisdiction of any court located
within the State of New York or the State of California, in
connection with any matter based upon or arising out of this
Agreement or the matters contemplated herein, agrees that process may
be served upon them in any manner authorized by the laws of the State
of California for such persons and waives and covenants not to assert
or plead any objection that they might otherwise have to such
jurisdiction and such process. EACH OF THE PARTIES IRREVOCABLY WAIVES
THE RIGHT TO A JURY TRIAL IN CONNECTION WITH ANY LEGAL PROCEEDING
RELATING TO THIS AGREEMENT AND THE OTHER TRANSACTION AGREEMENTS OR
THE ENFORCEMENT OF ANY PROVISION OF THIS AGREEMENT OR OTHER
TRANSACTION AGREEMENTS.
(i) NOTICES. All notices, requests, demands or other communications that
are required or may be given pursuant to the terms of this Agreement
shall be in writing and shall be deemed to have been duly given if
delivered by hand or mailed by registered or certified mail, postage
prepaid, as follows:
If to the Shareholder, at the address set forth below the Shareholder's
signature at the end hereof.
with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000-0000
Attn: Xxxxx X. Xxxxxxx, Esq.
Xxxxxxx X. Xxxx, Esq.
Fax: (000) 000-0000
Phone: (000) 000-0000
If to 724 Solutions:
724 Solutions Inc.
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx X0X 0X0
Xxxxxx
Attn: Xxx Xxxxxx, Legal Counsel
Fax: (000) 000-0000
Phone: (000) 000-0000
with a copy to:
Xxxxxxxx & Xxxxxxxx LLP
000 Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
Fax: (000) 000-0000
Phone: (000) 000-0000
C-2-6
and
Oglivy Renault
Suite 2100, P. O. Box 141
Royal Trust Tower, TD Centre
Toronto, Ontario M5K 1H1
Attn: Xxxxx Xxxxxx
Fax: (000) 000-0000
Phone: (000) 000-0000
or to such other address as any party hereto may designate for itself by notice
given as herein provided.
(j) SEVERABILITY. If any provision of this Agreement is held to be
unenforceable for any reason, such provision and all other related
provisions shall be modified rather than voided, if possible, in
order to achieve the intent of the parties to this Agreement to the
extent possible. In any event, all other unrelated provisions of this
Agreement shall be deemed valid and enforceable to the full extent.
(k) SPECIFIC PERFORMANCE; INJUNCTIVE RELIEF. The parties hereto
acknowledge that 724 Solutions will be irreparably harmed and that
there will be no adequate remedy at law for a violation of any of the
covenants or agreements of Shareholder set forth herein. Therefore,
it is agreed that, in addition to any other remedies that may be
available to 724 Solutions upon any such violation, 724 Solutions
shall have the right to enforce such covenants and agreements by
specific performance, injunctive relief or by any other means
available to 724 Solutions at law or in equity and the Shareholder
hereby waives any and all defenses which could exist in its favor in
connection with such enforcement and waives any requirement for the
security or posting of any bond in connection with such enforcement.
(l) TERMINATION. This Agreement may be terminated by either Shareholder
or 724 Solutions, if the Closing has not occurred on or prior to
June 30, 2000, or such other date, if any, as 724 Solutions and
Shareholder shall agree upon; provided, that the party seeking to
terminate this Agreement shall not have breached in any material
respect its obligations under this Agreement.
[SIGNATURE PAGE FOLLOWS]
C-2-7
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
724 SOLUTIONS INC.
By: __________________________________
Its
SHAREHOLDER:
______________________________________
Name: _______________________________
Address: _____________________________
_____________________________
_____________________________
Fax: ______________________________
[COUNTERPART SIGNATURE PAGE TO NON-EMPLOYEE SHAREHOLDERS' AGREEMENT]
C-2-8
SCHEDULE 1
OWNERSHIP OF EZLOGIN CAPITAL STOCK
Common Stock:
Series A Preferred Stock:
Series B Preferred Stock:
State or Country of Residence:
Other Beneficial Owners:
Liens and Encumbrances:
C-2-9
EXHIBIT 1
Certificate of Trust
C-2-10
EXHIBIT 2
Incumbency Certificate
C-2-11
EXHIBIT D
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is entered into as of
, 2000 by and between 724 Solutions Inc., a corporation amalgamated
under the laws of Ontario ("724 Solutions"), and each of the undersigned
shareholders (each, a "Shareholder") of 724 Solutions.
RECITALS
A. This Agreement is entered into in connection with that certain Agreement
and Plan of Merger and Reorganization, dated as of March 30, 2000 (the "Merger
Agreement") among Ezlogin, 724 Solutions, Merger Sub and the Shareholders'
Agent, pursuant to which Merger Sub will be merged with and into Ezlogin.
Capitalized terms used in this Agreement and not otherwise defined herein shall
have the meanings ascribed to them in the Merger Agreement.
B. Shareholder holds and/or has options to acquire shares of Ezlogin
Capital Stock.
C. Pursuant to the Merger Agreement, at the Effective Time, each
outstanding share of the Ezlogin Capital Stock will be converted into the right
to receive shares of 724 Solutions Common Stock (the "724 Solutions Shares") and
cash in lieu of any fractional shares thereof.
D. The 724 Solutions Shares issued to the Shareholders pursuant to the
Merger will be issued pursuant to an exemption from registration under the
Securities Act based on Section 4(2) of that Act, which requires, among other
things, certain representations and agreements to be made by Shareholder, some
of which are reflected in this Agreement.
E. Shareholder is entering into this Agreement as a material inducement to,
and in consideration of, 724 Solutions' willingness to consummate the
transactions contemplated by the Merger Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises, representations,
warranties, covenants and conditions set forth in this Agreement, the parties
mutually agree as follows:
ARTICLE 1
INVESTMENT REPRESENTATIONS
1.1 REPRESENTATIONS, WARRANTIES AND COVENANTS. SHAREHOLDER HEREBY
REPRESENTS, WARRANTS AND COVENANTS TO 724 SOLUTIONS AS FOLLOWS:
(a) STATUS.
Unless otherwise indicated on Schedule 1, Shareholder is an "accredited
investor," as defined in Rule 501(a) of Regulation D of the Securities
Act, and, for the purpose of Section 25102(f) of the California
Corporations Code, he or she is excluded from the count of "purchasers"
pursuant to Rule 260.102.13 thereunder.
If Shareholder is not an "accredited investor", then such Shareholder,
either alone or through appropriate representation by a "purchaser
representative" (as such terms used in the Securities Act and the rules
promulgated thereunder), has such knowledge and experience in financial
and business matters that such Shareholder is capable of evaluating the
merits and risks of the prospective investment in the 724 Solutions
Common Stock; provided that the execution and delivery of this Agreement
with no exceptions to the representations and warranties and a customary
investor questionnaire, with reasonably acceptable answers thereon, shall
be deemed to satisfy this condition; but provided further, that
notwithstanding the above, in the event 724 Solutions has a reasonable
belief that any relevant representation or the questionnaire is
materially untrue or contains a material misstatement of fact, 724
Solutions may demand additional reasonable evidence from such Shareholder
as to such Shareholders' investor status.
D-1
The address listed below the signature of Shareholder is the principal
residence of Shareholder. If Shareholder is not an accredited investor,
Shareholder has indicated on Schedule 1 the name of any relative, spouse
or relative of spouse of Shareholder who has the same principal residence
as Shareholder and who is an accredited investor. If Shareholder is an
accredited investor, Schedule 1 also indicates the name of any
Shareholder who is not an accredited investor and who is a relative,
spouse or relative of spouse of Shareholder having the same principal
residence as Shareholder.
(b) INVESTMENT INTENT.
(i) Shareholder is acquiring, in connection with the Merger, the 724
Solutions Shares for investment for Shareholder's own account, not as a
nominee or agent and not with the view to, or any intention of, a resale
or distribution thereof, in whole or in part, or the grant of any
participation therein, but subject nevertheless to any requirement of law
that the disposition of his property shall at all times be within his
control.
(ii) Shareholder understands that the 724 Solutions Shares are not
registered under the Securities Act, on the basis that the sale provided
for in the Merger Agreement and the issuance of securities thereunder is
exempt from registration under the Securities Act pursuant to
Section 4(2) thereof, and is exempt from registration under applicable
state securities laws by reason of specific exemptions therefrom, and
that 724 Solutions' reliance on such exemptions is predicated on each
Shareholder's representations set forth herein. Shareholder realizes that
the basis for these exemptions may not be present if, notwithstanding
such representations, Shareholder has in mind merely acquiring the
724 Solutions Shares for a fixed or determinable period in the future, or
for a market rise, or for sale if the market does not rise. Shareholder
does not have any such intention.
(iii) Shareholder understands that the 724 Solutions Shares may not
be sold, transferred, or otherwise disposed of without registration under
the Securities Act and any applicable state securities laws or an
exemption therefrom, and that, in the absence of an effective
registration statement covering the 724 Solutions Shares or an available
exemption from registration under the Securities Act and any applicable
state securities laws, the 724 Solutions Shares must be held
indefinitely. In particular, each Shareholder is aware that the 724
Solutions Shares may not be sold pursuant to Rule 144 promulgated under
the Securities Act unless all of the conditions of the applicable Rule is
met. Shareholder represents that, in the absence of an effective
registration statement covering the 724 Solutions Shares, he will sell,
transfer, or otherwise dispose of the 724 Solutions Shares only in a
manner consistent with his representations set forth herein and then only
in accordance with the provisions hereof.
(iv) Shareholder understands that 724 Solutions shall have no
obligation, except as provided herein, to register any of the 724
Solutions Shares under the Securities Act or any state securities laws or
to take any action that would make available any exemption from the
registration requirements of such laws. Shareholder hereby acknowledges
that, because of the restrictions on transfer or assignment of the 724
Solutions Shares, Shareholder may have to bear the economic risk of the
investment commitment in the 724 Solutions Shares for an indefinite
period of time. Shareholder is able, without materially impairing his
financial condition, to hold the 724 Solutions Shares for an indefinite
period of time.
(c) MERGER AGREEMENT; DISCLOSURE DOCUMENTS.
Shareholder has received and carefully reviewed copies of the Merger
Agreement and other Transaction Agreements (including the Escrow
Agreement), together with all exhibits and schedules thereto, and has had
the opportunity to discuss such Agreements with counsel and other
advisors.
Shareholder has received and carefully reviewed copies of the Rule 506
Documents and has had the opportunity to discuss the Rule 506 Documents
with counsel and other advisors.
Shareholder, either alone or together with Shareholder's purchaser
representative (as that term is used in Regulation D to the Securities
Act ("Purchaser Representative")), has such knowledge and experience in
financial and business matters such that Shareholder is capable of
(1) evaluating the merits and risks of the investment in the 724
Solutions Shares pursuant to the terms of the Merger
D-2
Agreement and (2) protecting Shareholder's interests in connection
therewith. If Shareholder has appointed a Purchaser Representative,
Shareholder has delivered to 724 Solutions a written acknowledgement by
Purchaser Representative of such appointment, in form and substance
reasonably satisfactory to 724 Solutions.
Shareholder understands that an investment in the 724 Solutions Shares is
speculative in nature and involves substantial risks. Shareholder has
been given the opportunity to make a thorough investigation of the
proposed activities of 724 Solutions and has been furnished with
materials relating to 724 Solutions and its proposed activities.
Shareholder confirms that all documents, records and books pertaining to
his investment in the 724 Solutions Shares and requested in writing by
Shareholder have been made available or delivered to Shareholder.
Shareholder has been afforded the opportunity to obtain any additional
information deemed necessary by Shareholder to verify the accuracy of any
representations made or information furnished to Shareholder and to ask
questions of a person or persons acting on behalf of 724 Solutions
concerning 724 Solutions' business and financial affairs and the terms
and conditions of Shareholder's acquisition of the 724 Solutions Shares
pursuant to the Merger Agreement, and all such questions have been
answered to Shareholder's satisfaction, none of which answers are in any
way inconsistent with any information otherwise provided to him or by or
on behalf of 724 Solutions. Shareholder has taken full cognizance of and
understands the risks relating to his acquisition of the 724 Solutions
Shares. Shareholder has relied upon, and is making its decision solely
upon, the 506 Documents.
1.2 COMPLIANCE WITH RULE 144 AND THE SECURITIES ACT.
(a) COMPLIANCE. Shareholder will observe and comply with the Securities Act
and the rules and regulations promulgated thereunder, as now in effect and as
from time to time amended, in connection with any offer, sale, pledge, transfer
or other disposition of the 724 Solutions Shares. In furtherance of the
foregoing, and in addition to the restrictions contained in any Transaction
Agreement executed by Shareholder, Shareholder will not offer to sell, exchange,
transfer, pledge, or otherwise dispose of any of the 724 Solutions Shares unless
at such time at least one of the following is satisfied:
(i) a registration statement under the Securities Act covering the 724
Solutions Shares proposed to be sold, transferred or otherwise disposed of,
describing the manner and terms of the proposed sale, transfer or other
disposition, and containing a current prospectus, shall have been filed with
the SEC and made effective under the Securities Act;
(ii) such transaction shall be permitted pursuant to the provisions of
Rule 144 under the Securities Act;
(iii) counsel representing Shareholder, satisfactory to 724 Solutions,
shall have advised 724 Solutions in a written opinion letter reasonably
satisfactory to 724 Solutions and its counsel, and upon which 724 Solutions
and its counsel may rely, that no registration under the Securities Act
would be required in connection with the proposed sale, transfer or other
disposition; or
(iv) an authorized representative of the SEC shall have rendered written
advice to Shareholder (sought by Shareholder or counsel to Shareholder, with
a copy thereof and of all other related communications delivered to 724
Solutions) to the effect that the SEC would take no action, or that the
staff of the SEC would not recommend that the SEC take action, with respect
to the proposed sale, transfer or other disposition if consummated.
(b) LEGEND. All certificates representing the 724 Solutions Shares
deliverable to Shareholder pursuant to the Merger Agreement and any certificates
subsequently issued with respect thereto or in substitution therefor, unless a
sale, transfer or other disposition is executed pursuant to one or more of the
alternative conditions set forth in Section 1.3(a) shall have occurred, or
unless the conditions of paragraph (k) of Rule 144 promulgated under the
Securities Act shall have been satisfied, shall bear a legend as set forth in
Section 1.11 of the Merger Agreement.
D-3
ARTICLE 2
REGISTRATION RIGHTS
2.1 PIGGYBACK REGISTRATION RIGHTS.
(a) If, at any time 724 Solutions proposes to register shares of its common
stock ("724 Solutions Common Stock") under the Securities Act in connection with
any offering of 724 Solutions Common Stock (other than a registration statement
on Form S-8 or Form S-4, or their successors, or any other form for a limited
purpose or which otherwise does not include at least substantially the same
information as would be required to be included in a registration statement
covering the sale of registrable securities, or any registration statement
covering only securities proposed to be issued in exchange for securities or
assets of another entity or in a registration in which the only 724 Solutions
Common Stock being registered is 724 Solutions Common Stock issuable upon
conversion of debt securities which are also being registered), whether or not
for its own account, 724 Solutions shall furnish prompt (but in no event later
than twenty-one (21) days prior to the filing of the applicable registration
statement) written notice to Shareholder of its intention to effect such
registration and the intended method of distribution in connection therewith.
Upon the written request of Shareholder made to 724 Solutions within twenty-one
(21) days after the furnishing such notice by 724 Solutions, 724 Solutions shall
include in such registration the requested number of 724 Solutions Shares issued
pursuant to the Merger (the "Registrable Securities"), subject to the provisions
hereof and other customary terms, conditions and limitations relating to the
registration of securities generally, provided, that 724 Solutions shall not be
required to register any Registrable Securities the Transfer of which is
restricted by the terms of any other Transaction Agreement (other than the "IPO
Lock-Up" (as defined in such other Transaction Agreement), which restriction
shall be waived with respect to the shares included in any such registration).
All rights granted to Shareholder pursuant to this SECTION 2.1 shall terminate
with respect to any Registrable Securities held by Shareholder upon the earliest
to occur of (i) the time when all of the Registrable Securities may immediately
be sold pursuant to Rule 144 under the Securities Act within any ninety
(90) day period, (ii) upon any sale of the Registrable Securities pursuant to a
registration statement or Rule 144 under the Securities Act or (iii) the date
two (2) years after the date hereof.
(b) Nothing in this SECTION 2.1 shall create any liability on the part of
724 Solutions or any other person to Shareholder if 724 Solutions or any other
person should, for any reason, decide not to file a registration statement
proposed to be filed or to withdraw such registration statement subsequent to
its filing, regardless of any action whatsoever that Shareholder may have taken,
whether as a result of the issuance by 724 Solutions of any notice under this
Section 2.1 or otherwise.
(c) It shall be a condition precedent to the obligation of 724 Solutions to
include any Registrable Securities in a registration statement pursuant to this
Section 2.1 that Shareholder shall furnish to 724 Solutions such information
regarding himself, the Registrable Securities held by him, and the intended
method of disposition of such securities as shall be required pursuant to the
Securities Act and the rules and regulations thereunder to effect the
registration of the Registrable Securities held by Shareholder. Any such
information, or any comments on any such information included in a draft of a
registration statement provided to Shareholder for his comment, shall be
provided to 724 Solutions within any reasonable time period requested by 724
Solutions.
(d) 724 Solutions may suspend any applicable registration statement and
require that Shareholder immediately cease the sale of 724 Solutions Shares
pursuant to the registration statement in any period during which 724 Solutions
is engaged in any activity or transaction or preparations or negotiations for
any activity or transaction (the "724 Solutions Activity") that 724 Solutions in
good faith desires to keep confidential for business reasons, if 724 Solutions
determines in good faith (and so certifies to Shareholder) that the public
disclosure requirements imposed on 724 Solutions under the Securities Act in
connection with the registration statement would require disclosure of 724
Solutions Activity, or during which there exists any other material non-public
information relating to 724 Solutions which 724 Solutions determines in good
faith should not be disclosed; provided that (i) 724 Solutions shall use
commercially reasonable efforts to minimize the length of any such period of
suspension, and (ii) any such suspension shall be applied in the same manner to
all other security holders included in such registration statements and to any
other registration statement or proposed offering of 724 Solutions' securities
proposed or then in effect.
D-4
(e) Shareholder shall notify 724 Solutions, at any time when a prospectus is
required to be delivered under applicable law, of the happening of any event as
a result of which the prospectus included in the applicable registration
statement, as then in effect, with respect to information provided or confirmed
by Shareholder, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then existing.
Shareholder shall immediately upon the occurrence of any such event cease using
such prospectus. If so requested by 724 Solutions, Shareholder promptly shall
return to 724 Solutions any copies of any prospectus in its possession (other
than permanent file copies) that contains an untrue statement of a material fact
or omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the circumstances then
existing.
(f) 724 Solutions shall bear and pay all reasonable expenses incurred by it
in connection with any registration, filing or qualification of the Registrable
Securities pursuant to this Section 2.1, including (without limitation) all
registration, filing and qualification fees, printers' and accounting fees, fees
and disbursements of counsel for 724 Solutions, but excluding underwriting
discounts and commissions relating to the Registrable Securities. 724 Solutions
shall pay the reasonable fees and expenses up to $15,000 of one counsel for all
Shareholders in connection with any registration, filing or qualification
hereunder, except to the extent mandated by applicable law, regulations,
policies or rules of governmental bodies or stock exchanges.
(g) In connection with any underwritten offering of securities, 724
Solutions shall not be required under this SECTION 2.1 to register any of
Shareholder's Registrable Securities in connection with such underwritten
offering unless Shareholder accepts the underwriters selected by 724 Solutions
and executes an underwriting agreement with such underwriters containing such
provisions as are customary in an underwritten offering (including a market
stand-off agreement of up to 180 days if required by such underwriters) that
includes shares held by a shareholder. Registrable Securities shall be sold in
such offering only in such quantity as the lead managing underwriter determines,
in its sole discretion, will not jeopardize the success of the offering by 724
Solutions. To the extent that the lead managing underwriter advises 724
Solutions in writing that, in its opinion, the number of securities proposed to
be included in the offering exceeds the number that can be sold in such offering
without adversely affecting the price of the securities to be sold, then the
securities to be included shall be apportioned as follows: (i) first, 724
Solutions and any holders of securities of 724 Solutions exercising any demand
registration rights granted to such holders shall be entitled to register all
securities that 724 Solutions or such other holders propose to sell for their
own accounts, in such proportion as they shall agree upon; (ii) second, any
holders of 724 Solutions securities exercising piggyback registration rights as
and to the extent that such registration rights have priority over the
registration rights granted to Shareholder hereunder pursuant to agreements
entered into on or prior to the date of execution of the Merger Agreement; and
(iii) lastly, Shareholder, together with any holders of other 724 Solutions
securities exercising piggyback registration rights as and to the extent that
such registration rights rank pari passu with the piggyback registration rights
hereunder (it being understood that 724 Solutions shall not grant any piggyback
registration rights having priority over the rights granted hereunder on or
after the date of execution of the Merger Agreement), shall be entitled to
register, on a pro rata basis, up to that number of Registrable Securities and
other shares of 724 Solutions Common Stock that is equal to the remaining shares
of 724 Solutions Common Stock that the lead managing underwriter will permit to
be registered after giving effect to the apportionment set forth in clauses (i)
and (ii) above, in connection with such offering. If Shareholder disapproves of
the terms of any such underwriting, Shareholder may elect to withdraw therefrom
by written notice to 724 Solutions and the underwriter(s), delivered at least
ten (10) business days prior to the effective date of the registration
statement. Any Registrable Securities excluded or withdrawn from such
underwriting shall be excluded and withdrawn from the registration.
(h) Whenever required to effect the registration of any Registrable
Securities under this Agreement, 724 Solutions shall:
(i) Prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of
the Securities Act with respect to the disposition of all securities covered
by such registration statement;
D-5
(ii) Furnish to Shareholder such number of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of
the Securities Act, and such other documents as Shareholder may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by Shareholder that are included in such registration; and
(iii) Use its reasonable efforts to register and qualify the Registrable
Securities covered by such registration statement under such other
securities or Blue Sky laws of such jurisdictions as shall be reasonably
requested by the Shareholder, provided that 724 Solutions shall not be
required in connection therewith or as a condition thereto to qualify to do
business or to file a general consent to service of process in any such
states or jurisdictions.
(i) Shareholder shall not have any right to obtain or seek an injunction
restraining or otherwise delaying any registration as the result of any
controversy that might arise with respect to the interpretation or
implementation of this Section 2.1.
2.2 INDEMNIFICATION.
(a) To the extent permitted by law, 724 Solutions will indemnify and hold
harmless Shareholder against any losses, claims, damages, or liabilities to
which he may become subject under the Securities Act, the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), or other federal or state law,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any of the following statements,
omissions or violations (collectively a "Violation") by 724 Solutions: (i) any
untrue statement or alleged untrue statement of a material fact contained in
such registration statement, including any preliminary prospectus or final
prospectus contained therein or any amendments or supplements thereto, (ii) the
omission or alleged omission to state therein a material fact required to be
stated therein, or necessary to make the statements therein not misleading, or
(iii) any violation or alleged violation by 724 Solutions of the Securities Act,
the Exchange Act, any state securities law or any rule or regulation promulgated
under the Securities Act, the Exchange Act or any state securities law in
connection with the offering covered by such registration statement; and 724
Solutions will reimburse Shareholder for any legal or other expenses reasonably
incurred by him in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, that the indemnity agreement
contained in this Section 2.2(a) shall not apply to amounts paid in settlement
of any such loss, claim, damage, liability or action if such settlement is
effected without the consent of 724 Solutions, which consent shall not be
unreasonably withheld, nor shall 724 Solutions be liable in any such case for
any such loss, claim, damage, liability or action to the extent that it arises
out of or is based upon a Violation which occurs in reliance upon and in
conformity with written information furnished expressly for use in connection
with such registration by Shareholder.
(b) To the extent permitted by law, Shareholder will, if the 724 Solutions
Shares held by Shareholder are included in the securities as to which such
registration, qualification or compliance is being effected, indemnify and hold
harmless 724 Solutions, each of its directors and officers, its legal counsel,
each person, if any, who controls 724 Solutions within the meaning of the
Securities Act, each underwriter and each other shareholder selling securities
under such registration statement against any losses, claims, damages or
liabilities (joint or several) to which 724 Solutions or any such director,
officer, counsel, controlling person, underwriter or other shareholders may
become subject under the Securities Act, the Exchange Act or other federal or
state law, insofar as such losses, claims, damages or liabilities (or actions in
respect thereto) arise out of or are based upon any Violation, in each case to
the extent (and only to the extent) that such Violation occurs in reliance upon
and in conformity with written information furnished by Shareholder expressly
for use in connection with such registration by Shareholder; and Shareholder
will reimburse any legal or other expenses reasonably incurred by 724 Solutions
or any such director, officer, counsel, controlling Person, underwriter or other
shareholders in connection with investigating or defending any such loss, claim,
damage, liability or action if it is judicially determined that there was such a
Violation; provided that the indemnity agreement contained in this
Section 2.2(b) shall not apply to amounts paid in settlement of any such loss,
claim, damage, liability or action if such settlement is effected without the
consent of Shareholder, which consent shall not be unreasonably withheld.
(c) The foregoing indemnity agreements of 724 Solutions and the Shareholder
are subject to the condition that, insofar as they relate to any Violation made
in a preliminary prospectus but eliminated or remedied in the
D-6
amended prospectus on file with the SEC at the time the registration statement
in question becomes effective or the amended prospectus filed with the SEC
pursuant to SEC Rule 424(b) (the "Final Prospectus"), such indemnity agreement
shall not inure to the benefit of any person if a copy of the Final Prospectus
was timely furnished to the indemnified party and was not furnished to the
person asserting the loss, liability, claim or damage at or prior to the time
such action is required by the Securities Act.
ARTICLE 3
MISCELLANEOUS
3.1 AMENDMENT AND MODIFICATION. This Agreement may not be modified,
amended, altered or supplemented except by the execution and delivery of a
written agreement executed by the parties hereto.
3.2 ASSIGNMENT. This Agreement will be binding upon, and inure to the
benefit of, the persons or entities who are permitted, by the terms of this
Agreement, to be successors, assigns and personal representatives of the
respective parties hereto. If any transferee of any Shareholder shall acquire
724 Solutions Shares, in any manner, whether by operation of law or otherwise,
such 724 Solutions Shares shall be held subject to all of the terms of this
Agreement, and by taking and holding such 724 Solutions Shares such person shall
be conclusively deemed to have agreed to be bound by and to perform all of the
terms and provisions of this Agreement and such person shall be entitled to
receive the benefits hereof.
3.3 COSTS OF ENFORCEMENT. If any party to this Agreement seeks to enforce
its rights under this Agreement by legal proceedings or otherwise, the
non-prevailing party will pay all costs and expenses incurred by the prevailing
party, including, without limitation, all reasonable attorneys' and experts'
fees.
3.4 COUNTERPART EXECUTION; FACSIMILE DELIVERY. This Agreement may be
executed in several counterparts and delivered by facsimile, each of which shall
be an original, but all of which together shall constitute one and the same
agreement.
3.5 EFFECT OF HEADINGS. The section headings herein are for convenience
only and shall not affect the construction or interpretation of this Agreement.
3.6 ENTIRE AGREEMENT. This Agreement and the exhibits hereto contains the
entire understanding of the parties in respect of the subject matter hereof, and
supersede all prior negotiations and understandings between the parties with
respect to such subject matter.
3.7 FURTHER ASSURANCES. Shareholder agrees to execute and deliver, before
or after the Effective Time, any additional documents reasonably necessary or
desirable to carry out the purposes and intent of this Agreement.
3.8 GOVERNING LAW. This Agreement shall be governed by and construed,
interpreted and enforced in accordance with the laws of the State of California,
without regard to conflict of laws. Each of the parties hereto irrevocably
consents to the jurisdiction of any court located within the State of New York
or the State of California, in connection with any matter based upon or arising
out of this Agreement or the matters contemplated herein, agrees that process
may be served upon them in any manner authorized by the laws of the State of
California for such persons and waives and covenants not to assert or plead any
objection that they might otherwise have to such jurisdiction and such process.
EACH OF THE PARTIES IRREVOCABLY WAIVES THE RIGHT TO A JURY TRIAL IN CONNECTION
WITH ANY LEGAL PROCEEDING RELATING TO THIS AGREEMENT AND THE OTHER TRANSACTION
AGREEMENTS OR THE ENFORCEMENT OF ANY PROVISION OF THIS AGREEMENT OR OTHER
TRANSACTION AGREEMENTS.
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3.9 NOTICES. All notices, requests, demands or other communications that
are required or may be given pursuant to the terms of this Agreement shall be in
writing and shall be deemed to have been duly given if delivered by hand or
mailed by registered or certified mail, postage prepaid, as follows:
If to the Shareholder, at the address set forth below the Shareholder's
signature at the end hereof.
with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000-0000
Attn: Xxxxx X. Xxxxxxx, Esq.
Xxxxxxx X. Xxxx, Esq.
Fax: (000) 000-0000
Phone: (000) 000-0000
If to 724 Solutions:
724 Solutions Inc.
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx X0X 0X0
Xxxxxx
Attn: Xxx Xxxxxx, Legal Counsel
Fax: (000) 000-0000
Phone: (000) 000-0000
with a copy to:
Xxxxxxxx & Xxxxxxxx LLP
000 Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
Fax: (000) 000-0000
Phone: (000) 000-0000
and
Oglivy Renault
Xxxxx 0000, X. X. Xxx 000
Xxxxx Trust Tower, TD Centre
Toronto, Ontario M5K 1H1
Attn: Xxxxx Xxxxxx
Fax: (000) 000-0000
Phone: (000) 000-0000
or to such other address as any party hereto may designate for itself by notice
given as herein provided.
3.10 SEVERABILITY. If any provision of this Agreement is held to be
unenforceable for any reason, such provision and all other related provisions
shall be modified rather than voided, if possible, in order to achieve the
intent of the parties to this Agreement to the extent possible. In any event,
all other unrelated provisions of this Agreement shall be deemed valid and
enforceable to the full extent.
3.11 SPECIFIC PERFORMANCE; INJUNCTIVE RELIEF. The parties hereto
acknowledge that 724 Solutions will be irreparably harmed and that there will be
no adequate remedy at law for a violation of any of the covenants or agreements
of Shareholder set forth herein. Therefore, it is agreed that, in addition to
any other remedies that may be available to 724 Solutions upon any such
violation, 724 Solutions shall have the right to enforce such covenants and
agreements by specific performance, injunctive relief or by any other means
available to 724 Solutions at law or in equity and the Shareholder hereby waives
any and all defenses which could exist in its
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favor in connection with such enforcement and waives any requirement for the
security or posting of any bond in connection with such enforcement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
724 SOLUTIONS INC.
By: __________________________________
Its
SHAREHOLDER:
______________________________________
Name: ________________________________
Address: _____________________________
_____________________________________
_____________________________________
Fax: _________________________________
[COUNTERPART SIGNATURE PAGE FOR REGISTRATION RIGHTS AGREEMENT]
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SCHEDULE 1
Total number of shares of Ezlogin Capital Stock owned immediately prior to the
Effective Time:
Common Stock:
Series A Preferred Stock:
Series B Preferred Stock:
State or Country of Residence:
Other Beneficial Owners:
Accredited Investors:
Total Number of 724 Solutions Shares owned as of the Effective Time: ___________
Other Beneficial Owners:
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EXHIBIT E
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (the "Escrow Agreement") is entered into this
June 15, 2000 by and among 724 Solutions Inc., a corporation amalgamated under
the laws of Ontario ("724 Solutions"), U.S. Bank Trust, National Association
(the "Escrow Agent), and Xxxxxxxxx Xxxxxxxxx, as representative (the
"Shareholders' Agent") for the shareholders and optionholders of Ezlogin (as
defined below).
RECITALS
A. This Agreement is entered into in connection with the First Amended and
Restated Agreement and Plan of Merger and Reorganization (the "Merger
Agreement"), dated as of May 9, 2000 and entered into by and among 724
Solutions, Xxxxxxx.xxx, Inc. ("Ezlogin"), Merger Sub and the Shareholders'
Agent, pursuant to which Merger Sub will be merged with and into Ezlogin.
Capitalized terms used in this Agreement and not otherwise defined herein shall
have the meanings ascribed to them in the Merger Agreement.
B. Sections 1.7(d), 5.12 and 8.1 of the Merger Agreement provide that
(i) an amount equal to ten percent (10%) of the shares of 724 Solutions Common
Stock issued in the Merger in respect of Ezlogin Capital Stock outstanding at
the Effective Time, and (ii) if 724 Solutions assumes the Ezlogin Options in
connection with the Merger, any Subject Shares (as defined below) will be held
in escrow to compensate 724 Solutions for certain indemnification obligations of
the Shareholders of Ezlogin.
In consideration of the mutual covenants and agreements herein contained,
the parties hereto agree as follows:
1. Deposit of Property.
(a) Escrow Shares. Pursuant to Section 1.7(d)(ii) of the Merger
Agreement, as soon as reasonably practicable but not later than five days,
after the Effective Date, 724 Solutions will distribute to the Escrow Agent
a certificate or certificates for One Hundred Thousand Three Hundred
Sixty-One and Twelve Hundredth (100,361.12) shares of 724 Solutions Common
Stock (the "Escrow Shares") shares representing ten (10%) of the shares of
724 Solutions Common Stock issued in the Merger in respect of Ezlogin
Capital Stock outstanding at the Effective Time, at the following address:
U.S. Bank Trust N.A.
Xxx Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Account No.: 00000000
Reference: 724 Solutions/Ezlogin
Attn: Xxx Xxxxxx
The Escrow Shares shall be registered in the name of the Escrow Agent as
nominee for the beneficial owners of such shares. The number of Escrow
Shares beneficially owned by each Shareholder, the percentage interest of
each Shareholder in the Escrow Fund and the address of each Shareholder are
set forth in Schedule 1 attached hereto.
(b) Subject Shares. Pursuant to the Merger Agreement, if 724 Solutions
assumes Ezlogin's Stock Option Plan and the outstanding Ezlogin Options, ten
percent (10%) of the options to purchase 724 Solutions Common Stock
resulting from the assumption of Ezlogin Options in connection with the
Merger (the "Subject Options") shall be subject to cancellation as security
for the Optionholders' indemnification obligations under the Merger
Agreement. However, to the extent that an Optionholder exercises a Subject
Option prior to the termination of the Escrow Period (or after the Escrow
Period, if such Subject Option has been subject to cancellation to satisfy
any unsatisfied claims specified in any Officers' Certificate delivered to
the Escrow Agent and the Shareholders' Agent prior to the termination of the
Escrow Period with respect to facts and circumstances existing prior to the
expiration of the Escrow Period and until such claims have been resolved),
724 Solutions shall distribute to the Escrow Agent, at the address set forth
in Section 1(a) above and as soon as reasonably practical after the exercise
of such Subject Option, a certificate or certificates representing the
resulting shares of 724 Solutions Common Stock, subject to and in
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accordance with the provisions of Article VIII of the Merger Agreement (the
"Subject Shares"). The Subject Shares shall be registered in the name of the
Escrow Agent as nominee for the Optionholder and shall constitute Escrow
Shares in all respects hereunder and under the Merger Agreement. As soon as
reasonably possible after any delivery of Subject Shares to the Escrow
Agent, 724 Solutions and the Shareholders' Agent will deliver to the Escrow
Agent a new Schedule 1 to this Agreement, reflecting the additional Escrow
Shares and the change in each Shareholder's pro rata portion of the Escrow
Fund.
2. Holding in Escrow; Earnings on Escrow Shares; Voting of 724 Solutions Common
Stock.
(a) Escrow Agent agrees to hold in escrow the Escrow Shares and any
additional monies which may be delivered to it (the "Escrow Fund"), subject
to the terms and conditions of this Escrow Agreement, shall treat such
Escrow Fund as a trust fund in accordance with the terms of this Agreement
and the Merger Agreement and not as the property of the 724 Solutions, and
shall dispose of the Escrow Shares only in accordance with the terms hereof.
(b) All dividends payable on the Escrow Shares held by Escrow Agent
shall be paid or made to the Ezlogin Shareholders, by check mailed via first
class mail, to the Shareholders at their addresses, and in the percentage
interests, set forth in Schedule 1 attached hereto; PROVIDED, HOWEVER, that
any dividend or other distribution payable ratably to all holders of 724
Solutions Common Stock in the form of additional shares of 724 Solutions
Common Stock, or entitling the holder thereof to receive, directly or
indirectly, additional shares of 724 Solutions Common Stock, and any
securities issued in exchange for 724 Solutions Common Stock, shall remain
part of the Escrow Fund and shall not be paid to the Ezlogin Shareholders
except pursuant to the provisions of Section 4 of this Escrow Agreement.
(c) Each of the Shareholders of Ezlogin shall have the power to vote
such Shareholder's share of the 724 Solutions Common Stock remaining in the
Escrow Fund at any time, provided that each Shareholder shall not exercise
voting power over any shares of 724 Solutions Common Stock that are
distributed to 724 Solutions under SECTION 3 OR 5 hereof. The Escrow Shares
shall be voted by the Escrow Agent, as record holder, in accordance with the
instructions received by the Escrow Agent from the beneficial owners of such
shares. In the absence of such instructions, the Escrow Agent shall be under
no obligation to vote such shares.
3. Payment for 724 Solutions Damages.
(a) Upon 724 Solutions' delivery of an Officer's Certificate or
Certificates identifying 724 Solutions Damages to the Escrow Agent as
provided in SECTION 5 below and the determination that such amount is
payable pursuant to this Escrow Agreement, 724 Solutions shall receive
Escrow Shares from the Escrow Fund equal in value to the Shareholders' pro
rata portion of the of 724 Solutions Damages (such Shareholders' pro rata
amount to be specified in the Officers' Certificate); provided, however,
that in no event shall 724 Solutions receive more than the number of shares
of 724 Solutions Common Stock originally placed in the Escrow Fund or added
to the Escrow Fund upon the exercise of any Subject Options. Payment of 724
Solutions Damages shall be taken ratably from Escrow Shares and, if
applicable, the cancellation of Subject Options by 724 Solutions with such
Optionholder's vested and unvested Subject Options being cancelled ratably
(including with respect to vesting dates). 724 Solutions shall receive
Escrow Shares ratably from Shareholders' Escrow Shares not subject to an
Unvested Share Repurchase Option, as defined in Section 5.2(c) of the Merger
Agreement and as set forth on Schedule 1, and from Escrow Shares subject to
an Unvested Share Repurchase Option (including with respect to lapsing
dates).
(b) Notwithstanding anything herein to the contrary, the Shareholders'
and Optionholders' total indemnification obligations pursuant to
Article VIII of the Merger Agreement shall not exceed 10% of the Merger
Consideration (the "Indemnification Cap") valued at the 724 Solutions Stock
Price, and no Shareholder or Optionholder shall have liability for any 724
Solutions Damages unless and until Officer's Certificates (as defined in
SECTION 5 below) identifying aggregate 724 Solutions Damages in excess of
$375,000 (the "Indemnification Threshold") have been received by the Escrow
Agent, in which case 724 Solutions shall be entitled to recover all 724
Solutions Damages; provided that all 724 Solutions Damages relating to the
representations and warranties set forth in Sections 2.2 and 2.38 of the
Merger Agreement
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(collectively, the "Excluded Damages") shall not be subject to either the
Indemnification Cap or the Indemnification Threshold.
4. Escrow Period.
(a) The escrow shall terminate on the one year anniversary of the
Effective Time ("Escrow Period"); provided, however, that a portion of the
Escrow Shares, which is necessary to satisfy any unsatisfied claims
specified in any Officer's Certificate theretofore delivered to the Escrow
Agent prior to termination of the Escrow Period with respect to facts and
circumstances existing prior to expiration of the Escrow Period, shall
remain in the Escrow Fund until such claims have been resolved. 724
Solutions shall deliver to the Escrow Agent a certificate specifying the
Effective Time.
(b) If 724 Solutions assumes the Ezlogin Options in connection with the
Merger, 724 Solutions shall hold the Subject Options as security for the
Optionholders' indemnity obligations under the Merger Agreement for the
entire Escrow Period (unless such Subject Option is exercised, in which case
the Subject Shares issuable upon exercise thereof shall be delivered to the
Escrow Agent in accordance with the terms hereof); provided, however, that a
portion of the Subject Options which is necessary to satisfy any unsatisfied
claims specified in any Officer's Certificate theretofore delivered to the
Escrow Agent and the Shareholders' Agent prior to termination of the Escrow
Period with respect to facts and circumstances existing prior to expiration
of the Escrow Period and until such claims have been resolved, shall remain
subject to cancellation and subject to the provisions of Article VIII of the
Merger Agreement until such claims have been resolved.
(c) Any amounts remaining in the Escrow Fund after the Escrow Period
that are not in dispute relating to the indemnification obligations of the
Shareholders arising under the Merger Agreement and this Escrow Agreement
shall be promptly distributed to the Shareholders (including Shareholders of
Subject Shares) and any Subject Options then outstanding that are not in
dispute relating to the indemnification obligations of the Optionholders
arising under the Merger Agreement shall be promptly released to the
Optionholders. As soon as all such disputed claims have been resolved, the
Escrow Agent shall deliver to the Shareholders all of the Escrow Shares and
other property remaining in the Escrow Fund and not required to satisfy such
claims and expenses. Each Shareholder shall receive that number of Escrow
Shares equivalent to such Shareholder's percentage interest in the Escrow
Fund as set forth in SCHEDULE 1 attached hereto.
5. Claims upon Escrow Fund.
(a) In order to receive Escrow Shares or cancel Subject Options as
compensation for 724 Solutions Damages, 724 Solutions must first deliver to
the Escrow Agent and the Shareholders' Agent, on or before the last day of
the Escrow Period, a certificate signed by any officer of 724 Solutions (an
"Officer's Certificate"), stating that 724 Solutions Damages exist and
specifying in reasonable detail the individual items of such 724 Solutions
Damages included in the amount so stated, the date each such item was paid,
or properly accrued in accordance with U.S. GAAP, or arose, and the nature
of the misrepresentation, breach of warranty or claim to which such item is
related and the specific representation, warranty or covenant alleged to
have been the subject of such misrepresentation, breach or default. The
Officer's Certificate shall also specify the amount of Escrow Shares and
identify the category of shares to be delivered (as set forth in
Section 3(a)) to 724 Solutions out of the Escrow Fund and, if applicable,
the number and identity of Subject Options, if any, which shall be cancelled
if the claim represented in the Officer's Certificate were to be paid. Upon
receipt of the Officer's Certificate, the Escrow Agent shall, subject to the
provisions of SECTIONS 6 AND 7 below, deliver to 724 Solutions out of the
Escrow Fund, as promptly as practicable, 724 Solutions Common Stock or other
assets held in the Escrow Fund, having a value equal to the portion of such
724 Solutions Damages attributable to the indemnity obligations of the
Shareholders as specified in the Officer's Certificate.
(b) For the purpose of compensating 724 Solutions for its 724 Solutions
Damages pursuant to this Agreement, the Escrow Shares, and, if applicable,
the Subject Options, shall be valued at the 724 Solutions Stock Price. 724
Solutions shall set forth the 724 Solutions Stock Price in a certificate
delivered to the Escrow Agent. If the value to be distributed to 724
Solutions with respect to each Shareholder or
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Optionholder is not evenly divisible by the 724 Solutions Stock Price, the
Escrow Agent shall round down the number of shares to be distributed to the
next highest number of shares and shall distribute that number to 724
Solutions. The fractional interests remaining will be aggregated with future
claims against the Escrow Fund and Subject Options and will be delivered to
724 Solutions or cancelled when any fractional shares in the aggregate are
equal to a whole number of shares or options. Upon the release of the Escrow
Fund, 724 Solution may direct the Escrow Agent to distribute the fractional
interests to the Shareholders and Optionholders or to monetize such
fractional interests in exchange for a pro rata payment of the 724 Solutions
Stock Price, to be paid as provided with respect to fractional shares in the
manner set forth in Section 1.6(c) of the Merger Agreement.
(c) In lieu of the fractional interest not distributed, 724 Solutions
shall furnish to the Escrow Agent cash equal to such fractional interest
times the 724 Solutions Stock Price, and the Escrow Agent in turn will
distribute to 724 Solutions a whole share of 724 Solutions Common Stock.
Accordingly, the Escrow Agent, upon receipt of such funds, shall deliver the
corresponding number of shares to 724 Solutions. In all events, 724
Solutions shall so purchase only a whole number of shares. Any cash so
received from 724 Solutions and not so immediately distributed by the Escrow
Agent shall be retained by the Escrow Agent as part of the Escrow Fund, but
need not be invested.
6. Objections to Claims. At the time of delivery of any Officer's Certificate
to the Escrow Agent, a duplicate copy of such Officer's Certificate shall be
delivered to the Shareholders' Agent and, for a period of forty-five
(45) days after such delivery to the Escrow Agent of such Officer's
Certificate, the Escrow Agent shall make no delivery of 724 Solutions Common
Stock or other property pursuant to Section 5 hereof unless the Escrow Agent
shall have received written authorization from the Shareholders' Agent to
make such delivery. After the expiration of such forty-five (45) day period,
the Escrow Agent shall make delivery of the 724 Solutions Common Stock or
other property in the Escrow Fund in accordance with Section 5 hereof,
provided that no such payment or delivery may be made if the Shareholders'
Agent shall object in a written statement to the claim made in the Officer's
Certificate, and such statement shall have been delivered to the Escrow
Agent and to 724 Solutions prior to the expiration of such forty-five
(45) day period.
7. Resolution of Conflicts; Arbitration.
(a) In case the Shareholders' Agent shall so object in writing to any
claim or claims by 724 Solutions made in any Officer's Certificate, 724
Solutions shall have forty-five (45) days after receipt by the Escrow Agent
and 724 Solutions of an objection by the Shareholders' Agent to respond in a
written statement to the objection of the Shareholders' Agent. If after such
forty-five (45) day period there remains a dispute as to any claims, the
Shareholders' Agent and 724 Solutions shall attempt in good faith for sixty
(60) days to agree upon the rights of the respective parties with respect to
each of such claims. If the Shareholders' Agent and 724 Solutions should so
agree, a memorandum setting forth such agreement shall be prepared and
signed by both parties and shall be furnished to the Escrow Agent. The
Escrow Agent shall be entitled to rely on any such memorandum and shall
distribute the 724 Solutions Common Stock or other property from the Escrow
Fund in accordance with the terms thereof.
(b) If no such agreement can be reached after good faith negotiation,
either 724 Solutions or the Shareholders' Agent may, by written notice to
the other, demand arbitration of the matter unless the amount of the damage
or loss is at issue in pending litigation with a third party, in which event
arbitration shall not be commenced until such amount is ascertained or both
parties agree to arbitration; and in either such event the matter shall be
settled by arbitration conducted by three arbitrators. Within fifteen
(15) days after such written notice is sent, 724 Solutions and the
Shareholders' Agent shall each select one arbitrator, and the two
arbitrators so selected shall select a third arbitrator. The decision of the
arbitrators as to the validity and amount of any claim in such Officer's
Certificate shall be binding and conclusive upon the parties to this
Agreement, and notwithstanding anything in SECTION 6 hereof, the Escrow
Agent shall be entitled to act in accordance with such decision and make or
withhold payments out of the Escrow Fund in accordance therewith.
(c) Judgment upon any award rendered by the arbitrators may be entered
in any court having jurisdiction. Any such arbitration shall be held in
Santa Xxxxx County, California under the commercial
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rules then in effect of the American Arbitration Association. For purposes
of this SECTION 7(C), in any arbitration hereunder in which any claim or the
amount thereof stated in the Officer's Certificate is at issue, 724
Solutions shall be deemed to be the Non-Prevailing Party unless the
arbitrators award 724 Solutions more than one-half ( 1/2) of the amount in
dispute, plus any amounts not in dispute; otherwise, the Shareholders and
Optionholders for whom shares of 724 Solutions Common Stock otherwise
issuable to them have been deposited in the Escrow Fund, or who hold Subject
Options, as applicable, shall be deemed to be the Non-Prevailing Party. The
Non-Prevailing Party to an arbitration shall pay its own expenses, the fees
of each arbitrator, the administrative fee of the American Arbitration
Association, and the expenses, including without limitation, attorneys' fees
and costs, reasonably incurred by the other party to the arbitration. If the
Shareholders and the Optionholders are deemed to be the Non-Prevailing
Party, such expenses and fees shall be paid first, from the Escrow Shares
and the cancellation of Subject Options, and second, by 724 Solutions,
provided that the Shareholders and Optionholders shall be and remain liable
to 724 Solutions for the amount that the total of all such fees and expenses
exceeds the total Escrow Shares and Subject Options, valued at the 724
Solutions Stock Price (the "Excess Fees"), and the Shareholders and
Optionholders, severally, hereby indemnify and hold harmless the 724
Solutions Indemnified Persons from and against all such Excess Fees.
8. Shareholders' Agent.
(a) By executing an Employee Holders' Agreement or Non-Employee
Shareholders' Agreement, voting to approve the Merger or accepting any
Merger Consideration, each Shareholder and Optionholder appoints Xxxxxxxxx
Xxxxxxxxx as agent (the "Shareholders' Agent") for and on behalf of such
Shareholder and Optionholder to give and receive notices and communications,
to authorize delivery to 724 Solutions of the 724 Solutions Common Stock or
other property from the Escrow Fund and, if applicable, the cancellation of
Subject Options, in satisfaction of claims by 724 Solutions, to object to
such deliveries and cancellations, to agree to, negotiate, enter into
settlements and compromises of, and demand arbitration and comply with
orders of courts and awards of arbitrators with respect to such claims, and
to take all actions necessary or appropriate in the judgment of the
Shareholders' Agent for the accomplishment of the foregoing. Such agency may
be changed by the holders of a majority in interest of the Escrow Fund and
the Subject Options from time to time upon not less than ten (10) days'
prior written notice to 724 Solutions. No bond shall be required of the
Shareholders' Agent, and the Shareholders' Agent shall receive no
compensation for his services. Notices or communications to or from the
Shareholders' Agent shall constitute notice to or from each of the Ezlogin
Shareholders and Optionholders.
(b) The Shareholders' Agent shall not be liable for any act done or
omitted hereunder as Shareholders' Agent while acting in good faith and in
the exercise of reasonable judgment, and any act done or omitted pursuant to
the advice of counsel shall be conclusive evidence of such good faith. The
Ezlogin Shareholders and Optionholders shall severally indemnify the
Shareholders' Agent and hold him harmless against any loss, liability or
expense incurred without gross negligence or bad faith on the part of the
Shareholders' Agent and arising out of or in connection with the acceptance
or administration of his duties hereunder.
(c) The Shareholders' Agent shall have reasonable access to information
about Ezlogin, the Surviving Corporation and 724 Solutions and the
reasonable assistance of Ezlogin's, the Surviving Corporation's and 724
Solutions' respective officers and employees for purposes of performing its
duties and exercising its rights hereunder, provided that the Shareholders'
Agent shall treat confidentially and not disclose any nonpublic information
from or about Ezlogin, the Surviving Corporation or 724 Solutions to anyone
(except on a need to know basis to individuals who agree to treat such
information confidentially).
(d) Xxxxxxxxx Xxxxxxxxx hereby agrees to act as the Shareholders' Agent
pursuant to the terms hereof.
9. Actions of the Shareholders' Agent. A decision, act, consent or instruction
of the Shareholders' Agent shall constitute a decision of all Shareholders
with an interest in the Escrow Fund and all Optionholders holding Subject
Options and shall be final, binding and conclusive upon each such
Shareholder and Optionholder, and the Escrow Agent and 724 Solutions may
rely upon any decision, act, consent or instruction of the Shareholders'
Agent as being the decision, act, consent or instruction of each and every
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such Shareholder and Optionholder. The Escrow Agent, 724 Solutions, Ezlogin
and the Surviving Corporation are hereby relieved from any liability to any
person for any acts done by them in accordance with such decision, act,
consent or instruction of the Shareholders' Agent.
10. Third-Party Claims. In the event 724 Solutions becomes aware of a
third-party claim which 724 Solutions believes may result in a demand
against the Escrow Fund or the Subject Options, 724 Solutions shall promptly
notify the Shareholders' Agent of such claim, and the Shareholders' Agent,
on behalf of the Shareholders and the Optionholders, shall be entitled, at
the Shareholders' and Optionholders' expense, to participate in any defense
of such claim. 724 Solutions shall have the right in its sole discretion to
settle any such claim; provided, however, that 724 Solutions may not effect
the settlement of any such claim without the consent of the Shareholders'
Agent, which consent shall not be unreasonably withheld. In the event that
the Shareholders' Agent has consented to any such settlement, the
Shareholders' Agent shall have no power or authority to object under
Section 6 or any other provision of Article VIII of the Merger Agreement to
the amount of any claim by 724 Solutions against the Escrow Fund or the
Subject Options for indemnity with respect to such settlement.
11. Fees and Expenses. 724 Solutions shall pay Escrow Agent compensation, as
payment in full for the services to be rendered by Escrow Agent hereunder
per the Fee Schedule as attached as Schedule 2 hereto. Any such
reimbursement to which Escrow Agent is entitled shall be borne by 724
Solutions. It is understood that the fees and usual charges agreed upon for
services of Escrow Agent shall be considered compensation for ordinary
services as contemplated by this Escrow Agreement. In the event that the
conditions of this Escrow Agreement are not promptly fulfilled, or if Escrow
Agent renders any service not provided for in this Escrow Agreement, or if
the parties request a substantial modification of its terms, or if any
controversy arises, or if Escrow Agent is made a party to, or intervenes in,
any litigation pertaining to this escrow or its subject matter, Escrow Agent
shall be reasonably compensated by 724 Solutions for such extraordinary
services and reimbursed for all costs, attorney's fees, including allocated
costs of in-house counsel, and expenses occasioned by such default, delay,
controversy or litigation (collectively, "Extraordinary Expenses") and
Escrow Agent shall have the right to retain all documents and/or other
things of value at any time held by Escrow Agent in this escrow (other than
the Escrow Funds) until such compensation, fees, costs, and expenses are
paid.
12. Limitation on Escrow Agent's Liability. The Escrow Agent's responsibilities
and liabilities shall be limited as follows:
(a) The Escrow Agent shall not be responsible for or be required to
enforce any of the terms or conditions of the Merger Agreement or any other
agreement between the parties thereto. The Escrow Agent shall not be
responsible or liable in any manner whatsoever for the performance by the
Shareholders' Agent or 724 Solutions of their respective obligations under
the Merger Agreement or this Escrow Agreement, nor shall the Escrow Agent be
responsible or liable in any manner whatsoever for the failure of any other
party to the Merger Agreement to honor any of the provisions of the Merger
Agreement.
(b) The duties and obligations of the Escrow Agent shall be limited to
and determined solely by the express provisions of this Escrow Agreement and
no implied duties or obligations shall be read into this Escrow Agreement
against the Escrow Agent. The Escrow Agent is not bound by and is under no
duty to inquire into the terms or validity of any other agreements or
documents, including any agreements which may be related to, referred to in
or deposited with the Escrow Agent in connection with this Escrow Agreement.
(c) The Escrow Agent shall be entitled to rely upon and shall be
protected in acting in reliance upon any instruction, notice, information,
certificate, instrument or other document which is submitted to it in
connection with its duties under this Escrow Agreement and which the Escrow
Agent in good faith believes to have been signed or presented by the proper
party or parties. The Escrow Agent shall have no liability with respect to
the form, execution, validity or authenticity thereof.
(d) The Escrow Agent shall not be liable for any act which the Escrow
Agent may do or omit to do hereunder, or for any mistake of fact or law, or
for any error of judgment, or for the misconduct of any
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employee, agent or attorney appointed by it, while acting in good faith,
unless caused by or arising from its own gross negligence or willful
misconduct.
(e) The Escrow Agent shall be entitled to consult with counsel of its
own selection and the opinion of such counsel shall be full and complete
authorization and protection to the Escrow Agent in respect of any action
taken or omitted by the Escrow Agent hereunder in good faith and in
accordance with the opinion of such counsel.
(f) The Escrow Agent shall have the right at any time to resign for any
reason and be discharged of its duties as Escrow Agent hereunder by giving
written notice of its resignation to the parties hereto at least thirty
(30) calendar days prior to the date specified for such resignation to take
effect. In addition, 724 Solutions and the Shareholders' Agent may jointly
remove the Escrow Agent as escrow agent at any time with or without cause,
by an instrument (which may be executed in counterparts) given to the Escrow
Agent, which instrument shall designate the effective date of such removal.
In the event of any such resignation or removal, a successor escrow agent
which shall be a bank or trust company organized under the laws of the
United States of America or of the State of California having (or if such
bank or trust company is a member of a bank company, its bank holding
company has) a combined capital and surplus of not less than $50,000,000,
shall be appointed by 724 Solutions with the approval of the Shareholders'
Agent, which approval shall not be unreasonably withheld. Any such successor
escrow agent shall deliver to 724 Solutions and the Shareholders' Agent a
written instrument accepting such appointment, and thereupon it shall
succeed to all the rights and duties of the escrow agent hereunder and shall
be entitled to receive the Escrow Fund. All obligations of the Escrow Agent
hereunder shall cease and terminate on the effective date of its resignation
or removal and its sole responsibility thereafter shall be to hold the
Escrow Fund, for a period of thirty (30) calendar days following the
effective date of resignation or removal, at which time,
(1) if a successor Escrow Agent shall have been appointed and written
notice thereof shall have been given to the resigning or removed Escrow
Agent by parties hereto and the successor Escrow Agent, then the
resigning Escrow Agent shall deliver the remaining Escrow Funds to the
successor Escrow Agent; or
(2) if a successor Escrow Agent shall not have been appointed, for
any reason whatsoever, the resigning or removed Escrow Agent shall
deliver the Escrow Funds to a court of competent jurisdiction in the
county in which the Escrow Funds are then being held and give written
notice of the same to 724 Solutions and the Shareholders' Agent.
(3) The resigning or removed Escrow Agent shall be reimbursed by 724
Solutions for any reasonable expenses incurred in connection with its
resignation and transfer of the Escrow Funds pursuant to and in
accordance with the provisions of this SECTION 12.
(g) 724 Solutions agrees to indemnify and hold the Escrow Agent harmless
from and against any and all liabilities, causes of action, claims, demands,
judgments, damages, costs and expenses (including reasonable attorneys fees
and expenses) that may arise out of or in connection with the Escrow Agent's
good faith acceptance of and performance of its duties and obligations under
this Escrow Agreement. The Escrow Agent shall be under no duty to institute
any suit, or to take any remedial procedures under this Escrow Agreement, or
to enter any appearance or in any way defend any suit in which it may be
made a defendant hereunder until it shall be indemnified as provided above.
(h) In the event that the Escrow Agent shall be uncertain as to its
duties or rights hereunder or shall receive instructions with respect to the
Escrow Funds which, in its sole discretion, are in conflict either with
other instructions received by it or with any provision of this Escrow
Agreement, the Escrow Agent shall have the absolute right to suspend all
further performance under this Escrow Agreement (except for the safekeeping
of the Escrow Funds) until such uncertainty or conflicting instructions have
been resolved by alternative dispute resolution, to the Escrow Agent's sole
satisfaction, pursuant to SECTION 7 hereof or by final judgment of a court
of competent jurisdiction, joint written instructions from all of the other
parties hereto, or otherwise. In the event that any controversy arises
between one or more of the parties hereto or any other party with respect to
this Escrow Agreement or the Escrow Funds, the Escrow Agent shall not be
required to determine the proper resolution of such controversy or the
proper disposition of the Escrow
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Funds and shall have the absolute right, in its sole discretion, to deposit
the Escrow Funds with the clerk of a court of competent jurisdiction
specified in SECTION 7 hereof, file a suit in interpleader in that court and
obtain an order from that court requiring all parties involved to resolve
their respective claims to the Escrow Funds pursuant to SECTION 7 or to
litigate their respective claims arising out of or in connection with the
Escrow Funds in that court. Upon the deposit by the Escrow Agent of the
Escrow Funds with the clerk of that court in accordance with this provision,
the Escrow Agent shall be relieved of all further obligations and released
from all liability hereunder.
13. Notices. Unless otherwise agreed, all notices, instructions and other
communications required or permitted to be given hereunder or necessary or
convenient in connection herewith shall be in writing and shall be deemed to
have been duly given if delivered by hand, by telecopier, (with receipt
confirmed, which confirmation may be mechanical) or by reputable overnight
courier, charges prepaid, addressed as follows:
if to 724 Solutions to:
724 Solutions
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxx, Xxxxxxx
Xxxxxx, X0X 0X0
Attention: Xxx Xxxxxx, Legal Counsel
Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxxxxx & Xxxxxxxx LLP
000 Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx, Esq.
Phone: (000) 000-0000
Fax: (000) 000-0000
if to the Shareholders' Agent to:
Benchmark Capital
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Attention: Xxxxxxxxx Xxxxxxxxx
Fax: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxx, Esq./Xxxxxxx X. Xxxx, Esq.
Phone: (000) 000-0000
Fax: (000) 000-0000
if to the Escrow Agent to:
U.S. Bank Trust, N.A.
Xxx Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attention: Xxx Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
Notice by 724 Solutions to the Shareholders' Agent shall be deemed notice to
all Shareholders and Optionholders for all purposes of this Escrow Agreement
and Article VIII of the Merger Agreement.
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14. Entire Agreement. This Escrow Agreement, the Merger Agreement and
the agreements specifically referred to herein and therein constitute the
entire agreement among the parties hereto other than the Escrow Agent and
supersede all prior agreements and understandings, oral or written, among
the parties hereto with respect to the subject matter hereof or thereof. The
Escrow Agent shall be bound only by this Escrow Agreement. To the extent
this Escrow Agreement is inconsistent with the Merger Agreement, the Merger
Agreement shall control. This Escrow Agreement may be amended, modified or
revoked only with the express written consent of 724 Solutions, the Escrow
Agent and the Shareholders' Agent.
15. General. This Escrow Agreement shall be governed by and construed
in accordance with the laws of the State of California and shall be binding
upon, and inure to the benefit of the parties hereto and their respective
successors, heirs at law, legatees, administrators, and executors; but this
Escrow Agreement and the rights and obligations hereunder shall not be
assignable by any party.
16. Counterpart Signatures, Facsimile Delivery. This Escrow Agreement
may be executed in counterparts and delivered by facsimile, each of which
shall be deemed an original agreement, but all of which together shall
constitute one and the same instrument.
[SIGNATURES FOLLOW ON A SEPARATE PAGE]
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IN WITNESS WHEREOF, the parties have duly executed this Escrow Agreement on
the day and year first above written.
"724 Solutions"
724 SOLUTIONS INC.,
a corporation amalgamated under the
laws
of Ontario
By: __________________________________
Its
"Escrow Agent"
U.S. BANK TRUST, NATIONAL
ASSOCIATION
By: __________________________________
Its
"Shareholders' Agent"
______________________________________
XXXXXXXXX XXXXXXXXX
[SIGNATURE PAGE TO ESCROW AGREEMENT]
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