Agreement and Plan of Merger - EDGAR Online Inc. and FreeEDGAR.com Inc.
AGREEMENT AND PLAN OF MERGER
AGREEMENT, dated as of the 10th day of September, 1999, by and among
EDGAR Online, Inc., a Delaware corporation ("EOL"), FreeEDGAR Acquisition Corp.,
a Delaware corporation ("Acquisition Corp.") and FreeEDGAR.com, Inc., a Delaware
corporation ("FreeEDGAR").
W I T N E S S E T H
WHEREAS, Acquisition Corp. is a wholly-owned subsidiary of EOL; and
WHEREAS, the Board of Directors of each of EOL, Acquisition Corp., and
FreeEDGAR deem it to be advisable and in the best interests of said corporation
and its stockholders that Acquisition Corp. be merged with and into FreeEDGAR in
a transaction whereby FreeEDGAR will become a wholly owned subsidiary of EOL
(the "Merger"), all in accordance with the terms of this Agreement and the
applicable provisions of the Delaware General Corporation Law (the "DGCL"); and
WHEREAS, for Federal income tax purposes, it is intended that the
Merger will be treated as a reorganization within the meaning of Section 368(a)
of the Internal Revenue Code of 1986, as amended (the "Code"); and
WHEREAS, the parties hereto wish to make certain representations,
warranties and covenants in connection with the Merger, to prescribe the terms
thereof and the mode of carrying it into effect, and to impose various
conditions precedent thereto.
NOW, THEREFORE, in consideration of, and in reliance upon, the
representations, warranties and covenants herein contained, the parties hereto
hereby agree as follows:
1. THE MERGER
1.1 THE MERGER
At the Effective Time (as defined in subparagraph 1.3 hereof), subject
to and upon the terms and conditions of this Agreement and in accordance with
the applicable provisions of the DGCL, Acquisition Corp. shall be merged with
and into FreeEDGAR, the separate corporate existence of Acquisition Corp. shall
cease, and FreeEDGAR shall continue as the surviving corporation (the "Surviving
Corporation"). The Merger shall have the effects set forth in Section 259 of the
DGCL.
1.2 CLOSING
Unless this Agreement shall have been terminated and the transactions
herein contemplated shall have been abandoned pursuant to subparagraph 8.1
hereof, and subject to the satisfaction or waiver of the conditions set forth in
subparagraphs 7.1 and 7.2 hereof, the closing of the Merger (the "Closing")
shall take place (1) at the offices of Littman Krooks Roth & Ball P.C., 655
Third Avenue, New York, New York as promptly as practicable (and in any event
within five business days) after the satisfaction or waiver of all of the
conditions set forth in subparagraphs 7.1 and 7.2 hereof, or (ii) at such other
time, date and/or place as may be agreed upon by the parties hereto. The date on
which the Closing occurs is hereinafter referred to as the "Closing Date".
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1.3 EFFECTIVE TIME
As promptly as practicable after the Closing Date, Acquisition Corp.
and FreeEDGAR shall (i) file in the office of the Secretary of State of the
State of Delaware, a Certificate of Merger meeting the requirements of the DGCL,
in substantially the form annexed hereto as Exhibit A, and (ii) execute,
acknowledge, deliver, file and/or record all such other instruments, and take
all such other actions, as may be required in order to cause the Merger to
become effective in accordance with the provisions of the DGCL. The date and
time on which the Merger becomes effective in accordance with the applicable
provisions of the DGCL is hereinafter referred to as the "Effective Time".
1.4 CORPORATE GOVERNANCE
1.4.1 CERTIFICATE OF INCORPORATION
At the Effective Time, the Certificate of Incorporation of Acquisition
Corp., as in effect immediately prior to the Effective Time, shall be the
Certificate of Incorporation of the Surviving Corporation. Thereafter, the
Certificate of Incorporation of the Surviving Corporation may be amended in
accordance with its terms and as provided by law; provided, however, that
Article I thereof shall be amended to read as follows: "The name of this
corporation is FreeEDGAR.com, Inc.".
1.4.2 BYLAWS
At the Effective Time, the Bylaws of Acquisition Corp., as in effect
immediately prior to the Effective Time, shall be the Bylaws of the Surviving
Corporation until changed in accordance with the Certificate of Incorporation
and the Bylaws of the Surviving Corporation and the DGCL.
1.4.3 DIRECTORS
The following persons shall be the initial members of the Board of
Directors of the Surviving Corporation, each to hold office in accordance with
the applicable provisions of law:
Marc Strausberg
Susan Strausberg
Tom Vos
Mark Schnitzer
1.4.4 OFFICERS
The following persons shall be the initial officers of the Surviving
Corporation, each to hold office in accordance with the applicable provisions of
law:
Name Office(s)
Tom Vos President and Chief Executive
Officer
Greg Adams Chief Financial Officer, Treasurer
and Secretary
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1.5 EFFECT OF MERGER ON SECURITIES OF CONSTITUENT CORPORATIONS
As of the Effective Time, by virtue of the Merger and without any
action on the part of Acquisition Corp. or FreeEDGAR:
1.5.1 ACQUISITION CORP. COMMON STOCK
Each issued and outstanding share of Common Stock of Acquisition Corp.,
par value $.01 per share, will be converted into and become one fully paid and
non-assessable share of Common Stock, par value $.01 per share, of the Surviving
Corporation.
1.5.2 FreeEDGAR CAPITAL STOCK
Subject to the provisions of Section 1.5.4 below and giving effect to
Section 7.1(i), the holders of securities of FreeEDGAR shall receive an
aggregate of 950,000 shares of common stock, par value $.01 per share, of EOL
("EOL Common Stock") as follows:
(a) COMMON STOCK(a) COMMON STOCK Each issued and
outstanding share of Common Stock of FreeEDGAR, par value $.01 per share
("FreeEDGAR Common Stock"), will be converted into shares of EOL Common Stock
pursuant to the "Conversion Rate," as defined herein; provided, however, that no
holder of shares of FreeEDGAR Common Stock shall be entitled to receive any
fractional shares of EOL Common Stock but instead any fractional shares shall be
rounded to the nearest whole share. The Conversion Rate shall be equal to (a)(i)
950,000 multiplied by the average closing price of EOL Common Stock on the last
30 business days preceding the date of Closing of this Agreement (the "EOL
Closing Price"; such product constituting the "Total EOL Consideration"), minus
(ii) the number of outstanding shares of FreeEDGAR Series B Convertible
Preferred Stock, after giving effect to the conversion of the Secured
Convertible Promissory Note dated June 12, 1998 now held by Reuters Holdings
Switzerland S.A. (the "Reuters Note") (the "Outstanding Series B Shares")
multiplied by $2.15 (such product constituting the "Total Series B Preference"),
minus (iii) the "Total Series A Preference", as defined herein; divided by (b)
the sum of (i) the number of outstanding shares of FreeEDGAR Common Stock on the
date of closing (the "Outstanding Common Shares"), plus (ii) the number of
FreeEDGAR Options, as defined herein, that are vested as of the Closing, plus
(iii) the number of FreeEDGAR Warrants, as defined herein, plus (iv) the
Outstanding Series B Shares multiplied by 2.15 and divided by 2.144 (such sum of
subsections (b)(i) through (b)(iv) constituting the "Common Stock Equivalents");
divided by (c) the EOL Closing Price.
(b) SERIES A PREFERRED STOCK(b) SERIES A PREFERRED
STOCK
Each issued and outstanding share of Series A
Convertible Preferred Stock of FreeEDGAR, par value $.01 per share ("FreeEDGAR
Series A Preferred Stock"), will be converted into shares of EOL Common Stock
pursuant to the "Series A Conversion Rate," as defined herein; provided,
however, that no holder of shares of FreeEDGAR Series A Preferred Stock shall be
entitled to receive any fractional shares of EOL Common Stock. The Series A
Conversion Rate shall be calculated by dividing the "Total Series A Preference,"
as defined herein, by the EOL Closing Price, and then dividing such quotient by
383,244. The Total Series A Preference shall equal the lesser of (a) $1,277,480
or (b)(i) the Total EOL Consideration minus (ii) the Total Series B Preference.
(c) SERIES B PREFERRED STOCK(c) SERIES B PREFERRED
STOCK
Each issued and outstanding share of Series B Convertible Preferred Stock of
FreeEDGAR, par value $.01 per share ("FreeEDGAR Series B Preferred Stock"), will
be
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converted into shares of EOL Common Stock pursuant to the "Series B
Conversion Rate," as defined herein; provided, however, that no holder of shares
of FreeEDGAR Series B Preferred Stock shall be entitled to receive any
fractional shares of EOL Common Stock. The Series B Conversion Rate shall be
calculated by dividing (a) (i) the Total Series B Preference plus (ii) the
Conversion Rate multiplied by the EOL Closing Price multiplied by the
Outstanding Series B Shares multiplied by 2.15 and divided by 2.144, by (b)
product of the Outstanding Series B Shares multiplied by the EOL Closing Price.
(d) OPTIONS(d) OPTIONS
Each issued and outstanding option entitling the holder thereof to purchase one
share of FreeEDGAR Common Stock at the Effective Time ("FreeEDGAR Options") will
be converted into an option to acquire shares of EOL Common Stock pursuant to
the Conversion Rate; provided, however, that no holder of FreeEDGAR Options
shall be entitled to receive any fractional shares of EOL Common Stock but
instead any fractional shares shall be rounded to the nearest whole share. EOL
will assume FreeEDGAR's 1999 stock option plan and, after the Effective Time,
each FreeEDGAR Option will be exercisable at an exercise price equal to the
quotient obtained by dividing the aggregate exercise price of each FreeEDGAR
Option being converted by the Conversion Rate.
(e) WARRANTS(e) WARRANTS
Each issued and outstanding warrant entitling the holder thereof to purchase one
share of FreeEDGAR Common Stock at the Effective Time ("FreeEDGAR Warrants")
will be converted into a warrant to acquire shares of EOL Common Stock pursuant
to the Conversion Rate; provided, however, that no holder of FreeEDGAR Warrants
shall be entitled to receive any fractional shares of EOL Common Stock but
instead any fractional shares shall be rounded to the nearest whole share. EOL
will assume the FreeEDGAR Warrants and, after the Effective Time, each FreeEDGAR
Warrant will be exercisable at an exercise price equal to the quotient obtained
by dividing the aggregate exercise price of each FreeEDGAR Warrant being
converted by the Conversion Rate.
1.5.3 CANCELLATION OF CERTAIN SHARES OF FreeEDGAR
COMMON STOCK
Each and any share of FreeEDGAR Capital Stock that is owned by FreeEDGAR or by
any subsidiary of FreeEDGAR, and each share of FreeEDGAR Capital Stock that is
owned by EOL, Acquisition Corp. or any other subsidiary of EOL, shall be
automatically canceled and retired, and shall cease to exist, and no EOL Capital
Stock or other consideration shall be delivered in exchange therefor.
1.5.4 ADJUSTMENT OF NUMBER OF SHARES OF EOL COMMON
STOCK TO BE DELIVERED PURSUANT TO THE MERGER
(a) CLOSING DATE BALANCE SHEET
At the Closing Date, FreeEDGAR shall deliver to EOL and Acquisition Corp. a
pro forma balance sheet of FreeEDGAR as of the date three days prior to the
Closing Date prepared in accordance with generally accepted accounting
principles consistently applied with past practices and fairly presenting
FreeEDGAR's financial condition as of such date as adjusted to reflect (i) the
pro forma conversion of debt held by Reuters into FreeEDGAR Series B Preferred
Stock, (ii) the pro forma contribution to FreeEDGAR's capital of a $200,000 loan
to FreeEDGAR by EOL on July 27, 1999 and (iii) the exclusion of any liabilities
arising as a result of the delay of the closing past September 8, 1999 due
solely to reasons beyond the reasonable control of FreeEDGAR (as so adjusted,
the "Closing Balance Sheet"). Representatives of EOL (including its auditors)
shall be entitled to participate in and observe the preparation of the Closing
Date Balance Sheet to whatever extent they may elect, at their cost and expense.
In order to enable EOL to anticipate and plan for assumption of the FreeEDGAR's
liabilities that will be shown on the Closing Balance Sheet, FreeEDGAR will
provide to EOL a balance sheet
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as of the end of the month immediately preceding the Closing Date as soon as
reasonably possible and in any event at least ten days before Closing Date (one
week before the date of the Closing Balance Sheet).
(b) DISPUTES RELATING TO THE CLOSING BALANCE SHEET If
EOL notifies Mark Schnitzer, Stephen P. Rader, in his capacity as Trustee of the
Stephen P. Rader and Anne W. Rader Living Trust 9/9/94, and Reuters Holdings
Switzerland S.A. (the "Significant Stockholders") within 30 days of receipt of
the Closing Balance Sheet that it disputes the calculations contained in the
Closing Balance Sheet, and all of such disputes have not been resolved by mutual
agreement of EOL and a majority in interest of the Significant Stockholders
within 15 days after such notification (which resolution would be binding upon
all of the parties hereto), the matter(s) in dispute shall be, within ten days
thereafter, submitted to a nationally recognized independent accounting firm
selected by EOL and a majority in interest of the Significant Stockholders,
which firm shall issue its written determination with respect to all disputed
matters within 30 days after such submission. Such determination shall be final
and binding upon all of the parties hereto. The fees of such accounting firm
shall be borne one-half by the Significant Stockholders (pro rata in accordance
with their holdings of FreeEDGAR Capital Stock immediately prior to the Closing)
and one-half by EOL.
(c) ADJUSTMENT OF NUMBER OF SHARES OF EOL COMMON
STOCK ISSUABLE PURSUANT TO MERGER
If the Closing Balance Sheet indicates a net
shareholder's deficit in excess of $200,000, then, in such event, the aggregate
number of shares of EOL Common Stock issuable pursuant to the Merger shall be
reduced by a number of shares which is equal to the quotient obtained by
dividing (i) such excess deficit by (ii) the average of the closing price for
one share of EOL Common Stock traded on the 20 business days preceding the
Closing Date as reported on the Nasdaq Stock Market (the "EOL Share Value").
1.5.5 EXCHANGE OF STOCK CERTIFICATES
As of the Effective Time and subject to the provisions of subparagraph
1.5.9 hereof, each holder of an outstanding certificate or certificates
representing shares of FreeEDGAR Capital Stock shall receive in exchange
therefor, upon surrender of such certificate or certificates to EOL along with
duly executed investor representation letters and lock-up agreements, one or
more certificates representing in the aggregate the number of whole shares of
EOL Common Stock into which said shares of FreeEDGAR Capital Stock shall have
been converted pursuant to the Merger. Until surrendered and exchanged, the
outstanding certificates theretofore representing shares of FreeEDGAR Capital
Stock shall be deemed for all purposes, other than the payment of dividends or
other distributions to stockholders of EOL, to represent the number of whole
shares of EOL Common Stock into which said shares of FreeEDGAR Capital Stock
shall have been converted pursuant to the Merger. No dividend or other
distributions which is payable to the holders of record of EOL Common Stock as
of any date subsequent to the Effective Time shall be paid to the holders of
outstanding unsurrendered certificates theretofore representing shares of
FreeEDGAR Capital Stock; provided, however, that upon surrender and exchange of
such outstanding certificates as provided above, there shall be paid to the
record holders of said certificates the amount (without any interest thereon) of
any dividends and other distributions which became payable to holders of record
of EOL Common Stock as of a date between the Effective Time and the date of such
surrender and exchange, inclusive.
1.5.6 FRACTIONAL SHARES
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No fractional shares of EOL Common Stock, and no scrip certificates, shall
be issued or delivered in connection with the Merger, and no fractional share
interest shall entitle the owner thereof to exercise any rights as a stockholder
of EOL. In lieu of the issuance or delivery of fractional shares or options or
warrants for fractional shares, the aggregate number of shares of EOL to which
each stockholder, optionholder or warrantholder of FreeEDGAR shall be entitled
as a result of the Merger shall be rounded to the nearest whole share, with
one-half being rounded up.
1.5.7 ADJUSTMENT
If subsequent to the date hereof but prior to the Effective Time, EOL
Common Stock shall be changed into or exchanged for a different number or kind
of shares through reorganization, recapitalization, reclassification, stock
dividend, stock split, reverse stock split or other like change in EOL's
capitalization, there shall be a proportionate and appropriate adjustment in the
number of shares of EOL Common Stock to be delivered pursuant to the Merger.
1.5.8 NO TRANSFERS
Commencing as of the Effective Time, there shall be no registration of
transfers on the records of FreeEDGAR of any shares of FreeEDGAR Capital Stock.
Subject to the provisions of subparagraph 1.5.9 hereof, if a certificate for
such shares is presented for transfer, it shall be exchanged for a certificate
representing shares of EOL Common Stock as herein provided.
1.5.9 WITHHOLDING OF SHARES, ETC
Anything herein above contained to the contrary notwithstanding, any
certificates representing shares of EOL Common Stock issuable to the Significant
Stockholders pursuant to the Merger may be legended, pending completion of the
adjustments referred to in subparagraph 1.5.4 above.
1.5.10 SUBSEQUENT COOPERATION
At any time and from time to time after the Effective Time, the last acting
officers of FreeEDGAR, or the corresponding officers of the Surviving
Corporation, may, in the name of FreeEDGAR, execute and deliver all such proper
deeds, assignments and other instruments and take or cause to be taken all such
further or other action as the Surviving Corporation may deem necessary or
desirable in order to best perfect or confirm in the Surviving Corporation title
to and possession of all of FreeEDGAR's properties, rights, privileges,
immunities, powers and purposes, and to otherwise carry out the purposes of this
Agreement.
1.5.11 ESCROW AGREEMENT
EOL, the Significant Stockholders and Littman Krooks Roth & Ball P.C.
("Escrow Agent"), shall execute and deliver at the Closing an Escrow Agreement,
substantially in the form annexed hereto as Exhibit B (the "Escrow Agreement"),
under which an aggregate of 95,000 shares of EOL Common Stock otherwise issuable
to the Significant Stockholders pursuant to the Merger ("Escrowed Shares") shall
be deposited with the Escrow Agent by the Significant Stockholders, with each
Significant Stockholder being deemed to have deposited a pro rata amount based
on his or its holdings of FreeEDGAR Capital Stock immediately prior to the
Closing. Such Escrowed Shares shall be held (subject to the provisions of the
Escrow Agreement relating to the reduction or release of such shares in a manner
set forth therein) pursuant to the Escrow Agreement for a period ending on the
earlier to occur of (i) the date on which EOL files with the Securities and
Exchange Commission its Annual Report on Form 10-K for its 1999 fiscal year and
(ii) April 15, 2000 (or such longer period as shall be provided therein
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in the event a claim for indemnification is made by EOL during such period).
Upon termination of the Escrow Agreement, the balance of the Escrowed Shares, if
any, shall be distributed to the Significant Stockholders pursuant to the Escrow
Agreement.
1.5.12 REGISTRATION RIGHTS
(a) PIGGYBACK REGISTRATION RIGHTS
In the event that EOL seeks to effect a public offering of EOL Common Stock
and, in such regard, EOL shall determine to proceed with the actual preparation
and filing of a registration statement under the Securities Act of 1933, as
amended (the "Securities Act"), in connection with the proposed offer and sale
of any of its securities by it or any of its security holders (other than a
registration statement on Form S-4, S-8 or other limited purpose form), then EOL
will give written notice of such determination to all former holders of
FreeEDGAR Capital Stock ("Holders"), as set forth in Schedule 2.2 hereto. Upon
the written request of the Holders (the "Responding Holders"), within twenty
(20) days after receipt of any such notice from EOL, EOL will, except as
provided herein, cause all, or any portion so requested, of the shares of EOL
Common Stock (collectively the "Registrable Securities") owned by the Responding
Holders to be included in such registration statement, all to the extent
requisite to permit the sale or other disposition by the prospective seller or
sellers of the Registrable Securities to be so registered; provided, however,
that nothing provided herein shall either (i) require EOL to file any
registration statement at any time or (ii) prevent EOL from, at any time,
abandoning or delaying any such registration. If any registration pursuant to
this Section 1.5.12(a) shall be underwritten, in whole or in part, EOL shall
require that the Registrable Securities requested for inclusion pursuant to this
Section 1.5.12(a) be included in the underwriting on the same terms and
conditions as the securities otherwise being sold through the underwriters.
Notwithstanding the foregoing, if the managing underwriter determines and
advises in writing that the inclusion of all or any portion of the Registrable
Securities proposed to be included in the underwritten public offering, together
with any other issued and outstanding securities proposed to be included therein
by holders of securities other than the Responding Holders, would interfere with
the successful marketing of such securities, then the number of such Registrable
Securities that the managing underwriter believes may be sold in such
underwritten public offering shall be allocated for inclusion in the
registration statement in the following order of priority: (i) the securities
being offered by EOL: and (ii) the number of Registrable Securities then owned
by each Responding Holder and the number of securities held by holders of
securities of EOL other than Responding Holders, on a pro rata basis, based upon
the number of securities sought to be registered by each such other holder. The
Registrable Securities that are excluded from the underwritten public offering
shall be withheld from the market by the Responding Holders for a period (not to
exceed 180 days) that the managing underwriter reasonably determines to be
necessary to effect the underwritten public offering (the "Holdback Period").
(b) REGISTRATION OBLIGATIONS
When EOL is required by the provisions of Section 1.5.12(a) to effect the
registration of Registrable Securities under the Act, EOL will:
1. Prepare and file with the Securities and Exchange Commission
("SEC") a registration statement with respect to such securities, and
use its best efforts to cause such registration statement to become
and remain effective until such time as all of the Registrable
Securities may be sold without regard to volume limitations under Rule
144 under the Securities Act ("Rule 144").
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2. Prepare and file with the SEC such amendments to such registration
statement and supplements to the prospectus contained therein as may
be necessary to keep such registration statement effective until such
time as all of the Registrable Securities may be sold without regard
to volume limitations under Rule 144.
3. Furnish to the security holders participating in such registration and
to the underwriters of the securities being registered such reasonable
number of copies of the registration statement, preliminary
prospectus, final prospectus and such other documents as they may
reasonably request in order to facilitate the public offering of such
securities.
4. Use its best efforts to register or qualify the securities covered
by such registration statement under such state securities or blue sky
laws of such jurisdictions as such participating holders or the
underwriters may reasonably request in writing, except that EOL shall
not for any purpose be required to execute a general consent to
service of process or to qualify to do business as a foreign company
in any jurisdiction wherein it is not already so qualified.
5. Notify the security holders participating in such registration,
promptly after it shall receive notice thereof, of the time when such
registration statement has become effective or a supplement to any
prospectus forming a part of such registration statement has been
filed.
6. Notify such holders promptly of any request by the SEC for the
amending or supplementing of such registration statement or prospectus
or for additional information.
7. Prepare and file with the SEC, promptly upon the request of any
such holders, any amendments or supplements to such registration
statement or prospectus which, in the opinion of counsel for such
holders (and concurred with by counsel for EOL), is required under the
Securities Act or the rules and regulations thereunder in connection
with the distribution of Registrable Securities by such holder.
8. Prepare and promptly file with the SEC and promptly notify such
holders of the filing of such amendment or supplement to such
registration statement or prospectus as may be necessary to correct
any statements or omissions if, at the time when a prospectus relating
to such securities is required to be delivered under the Securities
Act, any event shall have occurred as the result of which any such
prospectus would include an untrue statement of a material fact or
omit to state any material fact necessary to make the statement
therein, in light of the circumstances in which they were made, not
misleading.
9. Advise such holders, promptly after it shall receive notice or
obtain knowledge thereof, of the issuance of any stop order by the SEC
suspending the effectiveness of such registration statement or the
initiation or threatening of any proceeding for that purpose and
promptly use its best efforts to prevent the issuance of any stop
order or to obtain its withdrawal if such stop order should be issued.
(c) FEES AND COSTS
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With respect to the registration, all fees, costs and expenses of and
incidental to such registration and public offering (as specified below) in
connection therewith shall be borne by EOL, provided, however, that any security
holders participating in such registration shall bear their pro rata share of
the underwriting discount and commission and transfer taxes. The fees, costs and
expenses of registration to be borne by EOL as provided above shall include,
without limitation, all registration, filing and NASD fees, printing expenses,
fees and disbursements of counsel and accountants for EOL, fees and
disbursements of one law firm acting as counsel to the selling stockholders (up
to $7,500) and all legal fees and disbursements and other expenses of complying
with state securities or blue sky laws of any jurisdictions in which the
securities to be offered are to be registered and qualified. Fees and
disbursements of counsel (above $7,500) and accountants for the selling security
holders and any other expenses incurred by the selling security holders not
expressly included above shall be borne by the selling security holders.
(d)INDEMNIFICATION
1. EOL will indemnify and hold harmless each holder of Registrable
Securities which are included in a registration statement pursuant to the
provisions of Section 1.5.12(a) hereof, its directors and officers, and any
underwriter (as defined in the Securities Act) for such holder and each
person, if any, who controls such holder or such underwriter within the
meaning of the Securities Act, from and against, and will reimburse such
holder and each such underwriter and controlling person with respect to,
any and all loss, damage, liability, cost and expense to which such holder
or any such underwriter or controlling person may become subject under the
Securities Act or otherwise, insofar as such losses, damages, liabilities,
costs or expenses arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in such
registration statement, any prospectus contained therein or any amendment
or supplement thereto, or arise out of or are based upon 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;
provided, however, that EOL will not be liable in any such case to the
extent that any such loss, damage, liability, cost or expense arises out of
or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission so made in conformity with information
furnished by such holder, such underwriter or such controlling person in
writing specifically for use in the preparation thereof.
2. Each holder of the Registrable Securities included in a
registration pursuant to the provisions of Section 1.5.12(a) will indemnify
and hold harmless EOL, its directors and officers, any controlling person
and any underwriter from and against, and will reimburse EOL, its directors
and officers, any controlling person and any underwriter with respect to,
any and all loss, damage, liability, cost or expense to which EOL or any
controlling person and/or any underwriter may become subject under the
Securities Act or otherwise, insofar as such losses, damages, liabilities,
costs or expenses are caused by any untrue statement or alleged untrue
statement of any material fact contained in such registration statement,
any prospectus contained therein or any amendment or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein in light of the circumstances in which they were
made, not
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misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged
omission was so made in reliance upon and in strict conformity with written
information furnished by or on behalf of such holder specifically for use
in the preparation thereof.
3. Promptly after receipt by an indemnified party pursuant to the
provisions of paragraph (1) or (2) of this Section 1.5.12(c) of notice of
the commencement of any action involving the subject matter of the
foregoing indemnity provisions such indemnified party will, if a claim
thereof is to be made against the indemnifying party pursuant to the
provisions of said paragraph (1) or (2), promptly notify the indemnifying
party of the commencement thereof; but the omission to so notify the
indemnifying party will not relieve it from any liability which it may have
to any indemnified party except to the extent that the indemnifying party
was actually prejudiced by such omission. In case such action is brought
against any indemnified party and it notifies the indemnifying party of the
commencement thereof, the indemnifying party shall have the right to
participate in, and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party, provided, however, if the
defendants in any action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or in addition to those
available to the indemnifying party, or if there is a conflict of interest
which would prevent counsel for the indemnifying party from also
representing the indemnified party, the indemnified party or parties have
the right to select separate counsel to participate in the defense of such
action on behalf of such indemnified party or parties. After notice from
the indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party will not be liable to
such indemnified party pursuant to the provisions of said paragraph (1) or
(2) for any legal or other expense subsequently incurred by such
indemnified party in connection with the defense thereof other than
reasonable costs of investigation unless (i) the indemnified party shall
have employed counsel in accordance with the provisions of the preceding
sentence, (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after the notice of the commencement of the action
or (iii) the indemnifying party has authorized the employment of counsel
for the indemnified party at the expense of the indemnifying party.
1.6 APPROVAL BY SIGNIFICANT STOCKHOLDERS
The principal terms of the Merger shall be approved by the holders of
a majority of the voting shares of FreeEDGAR Capital Stock voting as a
single class and by holders of a majority of each series of FreeEDGAR's
preferred stock. EOL, as the sole stockholder of Acquisition Corp., shall
approve the Merger. The Significant Stockholders, as the holders of at
least 51% of the outstanding voting shares of FreeEDGAR Capital Stock,
simultaneously with the execution of this Agreement, shall execute and
deliver to EOL and Acquisition Corp. a consent in writing as stockholders
in lieu of a meeting, in conformity with Section 228 of the DGCL, adopting
and approving this Agreement (the "Section 228 Consent").
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From the date of this Agreement through the Effective Time, FreeEDGAR will
use its best efforts to obtain the signatures of the other holders of
FreeEDGAR Capital Stock to the Section 228 Consent necessary to effect the
Merger.
1.7 DISSENTER'S RIGHTS
If any holder of shares of FreeEDGAR Capital Stock is entitled to
dissenter's rights under Section 262 of the DGCL in connection with the
Merger, then the shares of FreeEDGAR Capital Stock as to which dissenter's
rights are perfected under the DGCL ("Dissenting Shares"), will be
converted into the right to receive such consideration as may be determined
to be due with respect to the Dissenting Shares pursuant to the DGCL.
FreeEDGAR will give EOL prompt notice of any demand by any of its
stockholders for appraisal of shares of FreeEDGAR under the DGCL. FreeEDGAR
will not, without the prior written consent of EOL (except as required by
the DGCL, in which case EOL shall be provided with prior written notice)
make any payment with respect to, or settle, any such demand for appraisal.
Each holder of shares of FreeEDGAR Capital Stock who is entitled to receive
payment for Dissenting Shares will receive payment therefor (but only after
the amount of such payment has been agreed upon or finally determined in
accordance with the DGCL). The number of shares of EOL Common Stock
issuable pursuant to the Merger will be reduced by the number of shares of
EOL Common Stock into which the Dissenting Shares are convertible and the
Significant Stockholders obligations pursuant to Section 4.1 may be
utilized by EOL to effectuate such a reduction.
2. REPRESENTATIONS AND WARRANTIES OF FREEEDGAR
FreeEDGAR represents and warrants to EOL and Acquisition Corp.
as follows:
2.1 ORGANIZATION, STANDING AND POWER
FreeEDGAR is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware, and has all
requisite corporate power and authority to own, lease and operate its
properties and to carry on its business as presently conducted by it.
FreeEDGAR is duly qualified to do business as a foreign corporation and is
in good standing in each jurisdiction where the character of the property
owned or leased by it or the nature of its activities makes it necessary
for it to qualify to do business as a foreign corporation, except where the
failure to so qualify would not reasonably be expected to have a Material
Adverse Effect. As used in this Agreement, the term "Material Adverse
Effect" shall mean any effect that is materially adverse to the properties,
assets, liabilities, business, prospects, results of operations or
condition (financial or otherwise) of FreeEDGAR, taken as a whole. Copies
of the Certificate of Incorporation or other organizational documents of
FreeEDGAR and all amendments thereof, and of the By-laws or other corporate
governance documents of FreeEDGAR, as amended to date, have been furnished
to EOL and are complete and correct. The minute books of FreeEDGAR
delivered to EOL contain complete and accurate summaries of all meetings
and other corporate actions of FreeEDGAR stockholders and Boards of
Directors (including committees of its Boards of Directors).
2.2 CAPITALIZATION
The authorized capital stock of FreeEDGAR consists of (i) 12,000,000
shares of FreeEDGAR Common Stock of which 1,361,900 shares are issued and
outstanding, and
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10,638,100 shares are authorized and unissued, (ii) 4,000,000 shares of
Preferred Stock of which (A) 383,244 shares are designated as Series A
Preferred Stock and issued and outstanding, and 0 shares are authorized and
unissued, and (B) 2,930,234 shares are designated as Series B Preferred
Stock, of which 1,773,643 shares are issued and outstanding (after giving
effect to the conversion of the Reuters Note as of September 9, 1999), and
1,156,591 shares are authorized and unissued, and (iii) 784,813 shares of
FreeEDGAR Common Stock subject to (A) the FreeEDGAR Options and (B)
FreeEDGAR Warrants. Collectively, the FreeEDGAR Common Stock, FreeEDGAR
Series A Preferred Stock, FreeEDGAR Series B Preferred Stock, FreeEDGAR
Options, FreeEDGAR Warrants and Reuters Note are referred to herein as the
"FreeEDGAR Capital Stock". All outstanding shares of FreeEDGAR Capital
Stock has been duly authorized and, to the extent issued and outstanding,
are validly issued and are fully paid and nonassessable. Other than as set
forth above, there are no outstanding options, warrants, rights, puts,
calls, commitments, conversion rights, plans or other agreements of any
character to which FreeEDGAR is a party or otherwise bound which provide
for the acquisition, disposition or issuance of any issued but not
outstanding, or authorized and unissued shares of Common Stock of
FreeEDGAR. There is no personal liability, and other than as set forth on
Schedule 2.2, there are no preemptive or similar rights, attached to the
FreeEDGAR Capital Stock. Schedule 2.2 contains a complete and correct list
of the (i) names, addresses (as reflected on the books and records of
FreeEDGAR) and number of shares of FreeEDGAR Capital Stock owned of record
by each of the stockholders of FreeEDGAR, and (ii) number of shares of EOL
Common Stock into which such stockholder's shares of FreeEDGAR Capital
Stock shall be converted as a result of the Merger.
2.3 INTERESTS IN OTHER ENTITIES
Other than as set forth on Schedule 2.3, FreeEDGAR does not (i) own,
directly or indirectly, of record or beneficially, any shares of voting
stock or other equity securities of any other corporation, (ii) have any
ownership interest, direct or indirect, of record or beneficially, in any
unincorporated entity, or (iii) have any obligation, direct or indirect,
present or contingent, (1) to purchase or subscribe for any interest in,
advance or loan monies to, or in any way make investments in, any person or
entity, or (2) to share any profits or capital investments or both.
2.4 AUTHORITY
The execution and delivery by FreeEDGAR of this Agreement and of all
of the agreements to be executed and delivered by FreeEDGAR pursuant
hereto, the performance by FreeEDGAR of its obligations hereunder and
thereunder, and the consummation of the transactions contemplated hereby
and thereby, have been duly and validly authorized by the Board of
Directors of FreeEDGAR and, upon execution of the Section 228 Consent by
holders of a majority of the outstanding voting FreeEDGAR Capital Stock and
holders of a majority of the outstanding shares of each of the FreeEDGAR
Series A Preferred Stock and the FreeEDGAR Series B Preferred Stock, all
necessary corporate action on the part of FreeEDGAR, and FreeEDGAR has all
necessary power with respect thereto. This Agreement is, and when executed
and delivered by FreeEDGAR each of the other agreements to be delivered by
FreeEDGAR pursuant hereto will be, the valid and binding obligation of
FreeEDGAR in accordance with their respective terms.
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2.5 NONCONTRAVENTION
Except as set forth on Schedule 2.5, neither the execution and
delivery by FreeEDGAR of this Agreement or of any agreement to be executed
and delivered by it pursuant hereto, nor the consummation of any of the
transactions contemplated hereby or thereby, nor the performance by
FreeEDGAR of any of its obligations hereunder or thereunder, will (nor with
the giving of notice or the lapse of time or both would) (i) conflict with
or result in a violation or breach of, or a default under, any provision of
the Certificate of Incorporation or Bylaws or other organizational
documents of FreeEDGAR, or (ii) conflict with, violate, breach, or
constitute a default under, accelerate any obligation under, or give rise
to a right of termination, amendment, or cancellation of any right or
benefit under any of the terms, conditions or provisions of any note, bond,
mortgage, debt instrument, credit facility, security agreement, lease, deed
of trust, franchise, indenture, license, agreement or other instrument,
commitment or obligation to which it is a party or by which any property of
assets of FreeEDGAR is bound, or require any consent, approval or notice
under the terms of any such document or instrument, or (iii) conflict or
violate any applicable order, writ, injunction, decree, law, statute,
ordinance, rule, judgment, regulation or other restriction of any court,
government, governmental or administrative agency or instrumentality, or
arbitration tribunal ("Governmental Entity") having jurisdiction over
FreeEDGAR, or by which any property or asset of FreeEDGAR is bound or
affected, or (iv) result in the creation or imposition of any lien, claim,
restriction, charge, equity or encumbrance in favor of any third party upon
any of assets of FreeEDGAR, or (v) interfere with or otherwise adversely
affect the ability of the Surviving Corporation to carry on its business
after the Closing Date on substantially the same basis as is now conducted
by FreeEDGAR. No consent, approval, order, or authorization of, or
registration, declaration, or filing with, any Governmental Entity is
required by or with respect to FreeEDGAR in connection with the execution
and delivery of this Agreement or the consummation by FreeEDGAR of the
transactions contemplated hereby, other than the filing with the Delaware
Secretary of State of the certificate of merger required to effect the
Merger.
2.6 FINANCIAL STATEMENTS
FreeEDGAR has heretofore delivered to EOL its audited financial
statements, including its balance sheets, statements of income,
stockholders' equity and cash flows for the fiscal year ended on December
31, 1998, certified without qualification by PricewaterhouseCoopers LLP,
independent certified public accountants (the "FreeEDGAR Audited Financial
Statements"), and its unaudited financial statements, including its balance
sheets, related statements of income, shareholders' equity and cashflows
for the six months ended on June 30, 1999. The FreeEDGAR financial
statements were prepared in accordance with generally accepted accounting
principles ("GAAP") consistently applied. The balance sheets included in
FreeEDGAR financial statements (including the related notes) fairly present
the financial position of FreeEDGAR as of their respective dates, and the
statements of operations and cash flows included therein (including the
related notes) fairly present FreeEDGAR's results of operations for the
fiscal periods indicated. The books and records of FreeEDGAR are complete
and correct in all material respects, have been maintained in accordance
with good business practices, and accurately reflect the basis for its
financial condition and results of operations as set forth in the
aforementioned financial statements.
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2.7 ABSENCE OF UNDISCLOSED LIABILITIES
FreeEDGAR has no liabilities or obligations, whether accrued,
absolute, contingent or otherwise, except (i) liabilities set forth or
adequately reserved against on the balance sheet as of June 30, 1999 (the
"1999 Balance Sheet"), in the case of liabilities of the type required to
be reflected on a corporate balance sheet prepared in accordance with GAAP
other than those that would be reflected in notes to such balance sheet, or
(ii) liabilities and obligations described in any of the Schedules
delivered pursuant hereto or omitted from said Schedules in accordance with
the terms of this Agreement, or (iii) liabilities incurred, consistent with
past practice, in the ordinary course of business since June 30, 1999 not
in excess of $25,000 in the aggregate, or (iv) liabilities under this
Agreement.
2.8 PROPERTIES
FreeEDGAR owns no real property. Except as set forth on Schedule 2.8,
FreeEDGAR has good and valid title to all of the other properties and
assets, reflected on the 1999 Balance Sheet or thereafter acquired, except
properties or assets sold or otherwise disposed of in the ordinary course
of business, free and clear of any and all liens. All plants, structures
and equipment which are utilized by FreeEDGAR, or are material to
operations or condition (financial or otherwise) of FreeEDGAR, are owned or
leased by FreeEDGAR and are in good operating condition and repair
(ordinary wear and tear excepted), and are adequate and suitable for
purposes for which they are used. Schedule 2.8 sets forth all (A) real
property which is leased (whether as lessor or lessee) or subject to
contract or commitment of purchase or sale or lease (whether as lessor or
lessee) by FreeEDGAR, and (B) significant personal property which is owned,
leased (whether as lessor or lessee) or subject to contract or commitment
of purchase or sale or lease (whether as lessor or lessee) by FreeEDGAR.
2.9 ACCOUNTS RECEIVABLE
The accounts and notes receivable which are reflected on the 1999
Balance Sheet are collectible in the ordinary course of business at the
aggregate recorded amounts thereof, net of any reserves for bad debt or
uncollectible accounts reflected on the 1999 Balance Sheet. The accounts
and notes receivable which were thereafter added are collectible in the
ordinary course of business at the aggregate amounts recorded in the books
of account of FreeEDGAR, net of any reserves for bad debt or uncollectible
accounts reflected in FreeEDGAR's accounting books and records and
consistent with the reserves reflected in the 1999 Balance Sheet.
2.10 ABSENCE OF CHANGES
Except as set forth on Schedule 2.10, since June 30, 1999, there have
not been (i) any material adverse changes in the condition (financial or
otherwise), assets, liabilities, business, prospects or results of
operations of FreeEDGAR (including, without limitation, any such adverse
change resulting from damage, destruction or other casualty loss, whether
or not covered by insurance)(it being acknowledged by EOL that FreeEDGAR
had a substantial employee layoff in July 1999 and has continued to incur
operating losses since June 30, 1999 as have been reported in writing to
EOL), (ii) any waivers by FreeEDGAR of any right, or cancellation of any
debt or claim, of substantial value, (iii) any declaration, setting aside
or payment of any dividend or other distribution or payments in respect of
the capital stock of
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FreeEDGAR, (iv) any change in the accounting principles or methods which
are utilized by FreeEDGAR, (v) any action or agreement to enter into any
transaction, agreement, or commitment (other than this Agreement and any
agreements contemplated pursuant to this Agreement) other than in the
ordinary course of business, (vi) sales or disposals of any material amount
of assets, or (vii) disposal or lapse of any rights to the use of
trademark, service mark, trade name, patent, copyright or other
intellectual property right.
2.11 LITIGATION
Except as set forth in Schedule 2.11, there are no suits or actions,
or administrative, arbitration or other proceedings or governmental
investigations, pending or, to the Best of the Knowledge of FreeEDGAR,
threatened, against or relating to FreeEDGAR. As used in this Agreement the
term "Best of Knowledge" shall mean, with reference to any natural person,
(i) the actual knowledge of such person, or (ii) such knowledge as
reasonably should be known by such person after reasonably diligent
inquiry. There are no judgments, orders, stipulations, injunctions, decrees
or awards in effect which relate to FreeEDGAR, the effect of which is (A)
to limit, restrict, regulate, enjoin or prohibit any business practice of
FreeEDGAR in any area, or the acquisition by FreeEDGAR of any properties,
assets or businesses, or (B) otherwise materially adverse to FreeEDGAR.
2.12 NO VIOLATION OF LAW
FreeEDGAR has not engaged or is not engaging in any activity, or
omitting or has omitted to take any action, as a result of which it is in
violation of any law, rule, regulation, zoning or other ordinance, statute,
order, injunction or decree, or any other requirement of any domestic or
foreign court or governmental or administrative body or agency, applicable
to FreeEDGAR, including, but not limited to, those relating to:
occupational safety and health; environmental and ecological protection
(e.g., the use, storage, handling, transport or disposal of pollutants,
contaminants or hazardous or toxic materials or wastes, and the exposure of
persons thereto); import, export and customs matters; business practices
and operations; labor practices; employee benefits; and zoning and other
land use, except in any event such as would not have a Material Adverse
Effect.
2.13 INTELLECTUAL PROPERTY
(a) The Intellectual Property Rights (as defined below) comprise all
of the intellectual property rights necessary for the operation of the
business of FreeEDGAR as currently conducted. Schedule 2.13 sets forth a
true, correct and complete list of all: (i) patented or registered
Intellectual Property Rights and pending patent applications or other
applications for registrations of the Intellectual Property Rights owned or
filed by or on behalf of FreeEDGAR; (ii) all registered trademarks and
service marks owned by FreeEDGAR; (iii) all registered copyrights owned by
FreeEDGAR and material to the financial condition, operating results,
assets, operations or business prospects of FreeEDGAR; (v) all domain names
owned or used by FreeEDGAR and (v) all licenses or similar agreements or
arrangements relating to the Intellectual Property Rights to which
FreeEDGAR is a party, either (A) as licensee and that require payments
aggregating more than $25,000 in any 12-month period, or (B) as a licensor
and that require payments aggregating more than $25,000 in any 12-month
period.
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(b) Except as set forth in Schedule 2.13 (i) FreeEDGAR owns and
possesses all right, title and interest in and to, or has a valid and
enforceable license to use, the Intellectual Property Rights necessary for
the operation of the business of FreeEDGAR as currently conducted free and
clear of any liens; (ii) no written claim by any third party contesting the
validity, enforceability, use or ownership of any of the Intellectual
Property Rights is currently outstanding or, to the Best Knowledge of
FreeEDGAR, threatened, and, to the knowledge of FreeEDGAR, there are no
valid grounds for the same; (iii) no loss of any material Intellectual
Property Right or related group of material Intellectual Property Rights is
pending or, to the Best Knowledge of FreeEDGAR, threatened; (iv) FreeEDGAR
has not received any written notice of, and has no knowledge of any valid
grounds for, any currently existing or otherwise unresolved infringement or
misappropriation by, or conflict with, any third party with respect to the
Intellectual Property Rights (including, without limitation, any demand or
request that FreeEDGAR licenses any rights from a third party); and (v) to
the Best Knowledge of FreeEDGAR, FreeEDGAR has not infringed or
misappropriated any intellectual property rights or other similar rights of
any third parties, other than any of the foregoing which may have occurred
in the past and have been fully and finally resolved prior to the date of
this Agreement and to the Best Knowledge of FreeEDGAR, no infringement or
misappropriation will occur as a result of the continued operation of the
business of FreeEDGAR as currently conducted.
(c) The transactions contemplated hereby will have no adverse effect
on the right, title and interest of FreeEDGAR in and to any material
Intellectual Property Rights or the validity and enforceability thereof.
All material Intellectual Property Rights owned by FreeEDGAR will be the
property of the Surviving Corporation as a result of the Merger.
(d) Except as set forth on Schedule 2.13, no copy of FreeEDGAR's
software is subject to or held in escrow or is in any third party's
possession, other than the object code version in accordance with the
licenses listed on Schedule 2.13 hereto.
(e) FreeEDGAR has taken commercially reasonable measures to protect
its Business Intellectual Property (as defined below). FreeEDGAR has used
commercially reasonable measures to treat its Business Intellectual
Property (other than user documentation and manuals and other materials
provided to customers of FreeEDGAR (not including source code) under
obligations of confidentiality) as trade secrets.
(f) Except to the extent licensed to customers of FreeEDGAR in the
ordinary course of business, FreeEDGAR has not previously assigned,
transferred, conveyed or otherwise encumbered its right, title and
ownership to its Business Intellectual Property (or any portion thereof),
and no third party has any right to use any of FreeEDGAR's Business
Intellectual Property except in accordance with an agreement which is
listed in Schedule 2.13. Except as set forth on Schedule 2.13, no licensing
fees, royalties or payments are due and payable by FreeEDGAR in connection
with the use of the Business Intellectual Property.
(g) Neither FreeEDGAR nor, to the Best Knowledge of FreeEDGAR, any
third party is in material default under any licenses, agreements or other
rights with respect to the Business Intellectual Property, and there exists
no event, occurrence, condition or act which, with the giving of notice,
the lapse of time or the happening of any other event or condition, would
become a material default thereunder.
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(h) For the purposes of this Agreement, "Intellectual Property Rights"
means all of the following owned by, issued to or licensed to FreeEDGAR,
along with all income, royalties, damages and payments due or payable to
FreeEDGAR at the Effective Time or thereafter (including, without
limitation, damages and payments for past or future infringements or
misappropriations thereof), the right to sue and recover for past
infringements or misappropriation thereof and any and all corresponding
rights that are secured by FreeEDGAR throughout the world: patents, patent
applications, patent disclosures and inventions (whether or not patentable
and whether or not reduced to practice and including, without limitation,
all inventions of employees of FreeEDGAR) and any reissues, continuations,
continuations-in-part, revisions, extensions or reexaminations thereof;
trademarks, service marks, trade dress, logos, trade names and corporate
names, together with all goodwill associated therewith (including, without
limitation, the use of the current corporate name and trade name(s) listed
on Schedule 2.13 and all translations, adaptations, derivative works and
combinations of the foregoing); copyrights and copyrightable works;
Internet domain names; mask works; and registrations, applications and
renewals for any of the foregoing; trade secrets and confidential
information (including, without limitation, ideas, formulae, compositions,
know-how, manufacturing and production processes and techniques, research
and development information, drawings, specifications, designs, plans,
proposals, technical data, financial and accounting data, and production
processes and techniques, research and development information, drawings,
specifications designs, plans, proposals, technical data, financial and
accounting data, business and marketing plans, and customer and supplier
lists and related information; computer software (in object code and source
code form and including, without limitation, data, related data bases and
documentation), including all works in progress relating to corrections,
modifications or enhancements thereto as well as all current and prior (but
only to the extent still maintained) versions of such software; other
intellectual property rights; and all copies and tangible embodiments of
the foregoing (in whatever form or medium), in each case including, without
limitation, the items set forth on Schedule 2.13.
(i) For purposes of this Agreement, "Business Intellectual Property"
means all computer programs (including application software and operating
software and including all operating codes, source codes, updates,
upgrades, modifications and enhancements associated with such computer
programs) and documentation, specifications, manuals and materials
(including all Intellectual Property Rights) associated therewith currently
owned or licensed by FreeEDGAR (regardless of whether it is used internally
and/or by customers of FreeEDGAR.)
(j) Each item of hardware, software or firmware (a "System") that is,
or is part of a material asset of, or any product or service designed,
manufactured, sold or provided by, or that is used in connection with the
business of, FreeEDGAR is in all material respects Year 2000 Complaint
except to the extent it is not reasonably expected to have a Material
Adverse Effect. For purposes of this Section 2.13, "Year 2000 Complaint"
means that all date-related functions of the System will accurately reflect
the change from the year 1999 to the year 2000 and beyond, including leap
year calculations, and the System will (i) properly calculate, display,
enter, store, manipulate and otherwise include symbols, numbers and words
that represent dates, including dates prior to, during and after the year
2000, in all computations, reports and displays involving dates, and are
able and shall remain able to accurately process date data (including, but
not limited to, calculating , comparing and sequencing) from, into and
between the twentieth and twenty-first centuries; (ii) resolve any
ambiguities as to century date data in input and output
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without abnormal endings, user intervening or change in operations; and
(iii) include an indication of century in all date-related user and data
interface functionalities, and all date-related data fields, generated by
or embodied in the System. FreeEDGAR does not know of any inability on the
part of any of its suppliers, customers or service providers (collectively,
"Third Parties") to timely ensure that the Systems of such Third Parties
are Year 2000 Compliant, which inability, individually or in the aggregate,
reasonably could be expected to have a Material Adverse Effect.
2.14 TAX MATTERS
FreeEDGAR has timely filed with the appropriate federal, state, local
and foreign governmental agencies and other authorities ("Taxing
Authority"), all tax returns and reports required to be filed by it, and
has timely paid in full or made adequate provision for the payment of, all
taxes, interest, penalties, assessments and deficiencies shown to be due or
claimed to be due on such tax returns and reports or that are otherwise due
and such tax returns and reports are correct and complete in all material
respects. The tax returns of FreeEDGAR have never been audited by any
Taxing Authority. FreeEDGAR has withheld all amounts which it is obligated
to withhold from amounts owing to any employee, creditor or third party.
All tax elections have been made by FreeEDGAR in accordance with generally
accepted practices. The provisions for income and other taxes which are set
forth on the 1999 Balance Sheet are adequate in all material respects for
all accrued and unpaid taxes of FreeEDGAR as at June 30, 1999, whether (A)
incurred in respect of or measured by income of FreeEDGAR for any periods
prior to the close of business on that date, or (B) arising out of
transactions entered into, or any state of facts existing, on or prior to
that date. The provisions for income and other taxes which are set forth on
the books of account of FreeEDGAR are adequate for all income and other
taxes which accrued after June 30, 1999, subject to normal period-end
adjustments consistent with prior periods. FreeEDGAR has not executed or
filed with any Taxing Authority any agreement extending the periods for the
assessment or collection of any income or other taxes, and FreeEDGAR has
not been granted any currently effective waivers of any statute of
limitations with respect to, or any extension of a period for the
assessment of taxes. FreeEDGAR is not a party to any pending or, to the
Best of the Knowledge of FreeEDGAR, threatened, claim, action or proceeding
by any Taxing Authority for the assessment or collection of income or other
taxes. There are no liens for taxes currently due and payable imposed by
any Taxing Authority, outstanding against FreeEDGAR or its assets,
properties or business.
2.15 INSURANCE
Schedule 2.15 is a complete and correct list and summary description
of all policies of insurance in which FreeEDGAR is an insured party,
beneficiary or loss payable payee. Such policies are in full force and
effect, all premiums due and payable with respect thereto have been paid,
and no notice of cancellation or termination has been received by
FreeEDGAR. Such policies cover risks normally insured against, and are in
amounts normally carried, by companies engaged in similar businesses of a
size and scope to that of FreeEDGAR.
2.16 BANKS; POWERS OF ATTORNEY
Schedule 2.16 is a complete and correct list showing (i) the names of
each bank in which FreeEDGAR has an account or safe deposit box and the
names of all persons authorized to
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draw thereon or who have access thereto, and (ii) the names of all persons,
if any, holding powers of attorney from FreeEDGAR.
2.17 EMPLOYEE ARRANGEMENTS
Schedule 2.17 is a complete and correct list and summary description
of all (i) union, collective bargaining, employment, management,
termination and consulting agreements to which FreeEDGAR is a party or
otherwise bound, and (ii) compensation plans and arrangements; bonus and
incentive plans and arrangements; deferred compensation plans and
arrangements; pension and retirement plans and arrangements; profit-sharing
and thrift plans and arrangements; stock purchase and stock option plans
and arrangements; hospitalization and other life, health or disability
insurance or reimbursement programs; holiday, sick leave, severance,
vacation, tuition reimbursement, personal loan and product purchase
discount policies and arrangements; and other plans or arrangements
providing for benefits for employees of FreeEDGAR. Schedule 2.17 also
includes a list of the names and compensation rate of all employees of
FreeEDGAR, including, without limitation, compensation due and payable, as
well as, contingent accrued and projected bonuses to be earned or paid
within 12 months of the Closing Date.
2.18 ERISA
(a) PLANS
Schedule 2.18 lists each "employee pension benefit plan" (collectively
called "FreeEDGAR Pension Plans" and severally called "FreeEDGAR Pension
Plan"), as such term is defined in Section 3(2) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), and each "employee
welfare benefit plan" (collectively called "FreeEDGAR Welfare Plans" and
severally called "FreeEDGAR Welfare Plan") as such term is defined in
Section 3(1) of ERISA, which is maintained by FreeEDGAR or to which it
contributes or is obligated or required to contribute, and which is subject
to the provisions of ERISA. The FreeEDGAR Pension Plans and FreeEDGAR
Welfare Plans are hereinafter sometimes collectively referred to as the
"Plans" and severally referred to as a "Plan".
(b) QUALIFICATION
Each FreeEDGAR Pension Plan and the trust (if any) forming a part
thereof has been determined by the IRS to be qualified under Section 401(a)
of the Code and is exempt from taxation under Section 501(a) of the Code,
and nothing has occurred since the date of such determination which would
adversely affect such qualification.
(c) PLAN DOCUMENTS
FreeEDGAR have heretofore delivered to EOL, true, complete and correct
copies of (i) the Plans, and all related trust agreements, (ii) all written
interpretations and summary plan descriptions relating thereto, (iii) the
two most recent annual reports (Form 5500 Series) and accompanying
schedules which were prepared in connection with each Plan, (iii) all IRS
determination letters relating to the Plans, and (iv) the two most recent
actuarial evaluation reports which were prepared in connection with any of
the Plans.
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(d) NO PROHIBITED TRANSACTIONS
None of FreeEDGAR, nor any of the Plans, nor any trust created
thereunder, nor any trustee or administrator thereof, have engaged in a
transaction which would subject any of FreeEDGAR or any of the Plans to the
tax on prohibited transactions imposed by Section 4975 of the Code or to a
civil penalty assessed pursuant to Section 502(i) of ERISA.
(e) NO ACCUMULATED FUNDING DEFICIENCY
None of the FreeEDGAR Pension Plans has incurred any "accumulated
funding deficiency", as such term is defined in Section 302 of ERISA and
Section 412 of the Code, whether or not waived.
(f) TERMINATION
None of FreeEDGAR have incurred, and are not expected to incur,
directly or indirectly, any liability to the Pension Benefit Guaranty
Corporation (the "PBGC") with respect to any FreeEDGAR Pension Plan. The
PBGC has not instituted proceedings to terminate any FreeEDGAR Pension
Plan, nor has it notified any of FreeEDGAR, either formally or informally,
of its intention to institute any such proceedings.
(g) REPORTABLE EVENTS
There have not been, with respect to any of the Plans, any "reportable
events", as such term is defined in Section 4043(b) of ERISA.
(h) MULTIEMPLOYER PLANS
Neither of FreeEDGAR have ever maintained or contributed to, or been
obligated or required to contribute to, a "multiemployer plan", as such
term is defined in Section 3(37) of ERISA.
(i) CONTRIBUTIONS; BENEFITS
FreeEDGAR has paid in full all amounts which were required to have
been paid by it on or prior to the date hereof as contributions to any of
the FreeEDGAR Pension Plans. The current value of all accrued benefits
under each of the FreeEDGAR Pension Plans did not, as of the latest
valuation date thereof, exceed the then current value of the assets of such
FreeEDGAR Pension Plan allocable to such accrued benefits, based upon the
actuarial assumptions then being utilized with respect thereto.
(j) CLAIMS
There is not pending, and to the Best of the Knowledge of FreeEDGAR
there is not threatened, any claims against any of the Plans or any
fiduciary thereof (other than claims for benefits made in the ordinary
course).
2.19 CERTAIN BUSINESS MATTERS
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Except as is set forth in Schedule 2.19, (A) FreeEDGAR is not a party
to or bound by any distributorship, dealership, sales agency, franchise or
similar agreement which relates to the sale or distribution of any of its
products or services, (B) there are no pending, or to the Best of the
Knowledge of FreeEDGAR threatened, labor negotiations, work stoppages or
work slowdowns involving or affecting FreeEDGAR, and, to the Best of the
Knowledge of FreeEDGAR, there are no pending activities by any labor union
seeking to represent or organize the employees of FreeEDGAR, (C) the
product and service warranties given by FreeEDGAR or by which FreeEDGAR is
bound (descriptions of which are set forth on Schedule 2.19), entail no
greater obligations than are customary in the business in which FreeEDGAR
is engaged, (D) FreeEDGAR is not party to or bound by any agreement which
limits its freedom to compete in any line of business or with any person,
and (E) FreeEDGAR is not a party to or bound by any agreement in which any
officer, director or stockholder of FreeEDGAR (or any affiliate of any such
person) has, or had when made, a direct or indirect material interest other
than those agreements that are otherwise described in or contemplated
pursuant to this Agreement.
2.20 CERTAIN CONTRACTS
Schedule 2.20 is a complete and correct list of all contracts,
commitments, obligations and understandings which are not set forth in any
other Schedule delivered hereunder and to which FreeEDGAR is a party or
otherwise bound, except for each of those which (A) was made in the
ordinary course of business, and (B) either (1) is terminable by FreeEDGAR
(and will be terminable by the Surviving Corporation) without liability,
expense or other obligation on 30 days' notice or less, or (2) may be
anticipated to involve aggregate payments to or by FreeEDGAR of $25,000 (or
the equivalent) or less calculated over the full term thereof, and (C) is
not otherwise material to FreeEDGAR. Complete and correct copies of all
contracts, commitments, obligations and undertakings set forth on any of
the Schedules delivered pursuant to this Agreement have been furnished to
EOL and Acquisition Corp., and except as expressly stated on the Schedule
on which they are set forth, (A) each of them is in full force and effect,
and, to the Best of the Knowledge of FreeEDGAR, no person or entity which
is a party thereto or otherwise bound thereby is in default thereunder and
no event, occurrence, condition or act exists which does (or which with the
giving of notice or the lapse of time or both would) give rise to a default
or right of cancellation, acceleration or loss of contractual benefits
thereunder; (B) there has been to the Best Knowledge of FreeEDGAR no
threatened cancellations thereof, and there are no outstanding disputes
thereunder other than in the ordinary course of business;(C) none of them
is materially burdensome to FreeEDGAR; and (D) no consent, approval or
authorization is required by party to any of these contracts, commitments,
obligations and undertakings in connection with the execution of this
Agreement and the consummation of the transactions contemplated hereby.
2.21 APPROVALS
FreeEDGAR currently holds all governmental and administrative
consents, permits, appointments, approvals, licenses, certificates and
franchises that are necessary for the conduct by it of its operations and
the ownership by it of its properties (collectively "Permits"). All of the
Permits are in full force and effect, and except as expressly set forth on
Schedule 2.21, are transferable to the Surviving Corporation. Schedule 2.21
is a complete list of all the Permits. No violations of the terms of any of
the Permits have occurred except such as would not have a
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Material Adverse Effect.
2.22 NO DEFAULT OR VIOLATION
Except as set forth on Schedule 2.22, FreeEDGAR (i) is not in default
under or in violation of (and no event has occurred which has not been
waived which, with notice or lapse of time or both, would result in a
default by FreeEDGAR under), nor has FreeEDGAR received any notice of a
claim that it is in default under or that it is in violation of any of the
terms, conditions or provisions of any note, bond, mortgage, debt
instrument, credit facility, security agreement, lease, deed of trust,
franchise, indenture, or any license, agreement or other instrument,
commitment or obligation to which it is a party or by which any property of
assets of FreeEDGAR is bound, (ii) in conflict or violation of any
applicable order, writ, injunction, decree, law, statute, ordinance, rule,
judgment, regulation or other restriction of any Governmental Entity having
jurisdiction over FreeEDGAR, or by which any property or asset of FreeEDGAR
is bound or affected.
2.23 CUSTOMERS
Schedule 2.23 is a complete and correct list setting forth, with
respect to the six-month period ended June 30, 1999, the ten largest
customers of FreeEDGAR and the amount for which each such customer was
invoiced during such period. Except as set forth on Schedule 2.23, to the
Best of the Knowledge of FreeEDGAR, such customers will continue their
respective relationships with FreeEDGAR after the Closing Date on
substantially the same basis as now exists. Schedule 2.23 also indicates
those of such customers which are affiliates or associates of FreeEDGAR (as
defined in Rule 405 under the Securities Act).
2.24 BROKERS
Except for Walden Capital, no agent, broker, person or firm acting on
behalf of FreeEDGAR, or under the authority of FreeEDGAR, is or will be
entitled to a financial advisory fee, brokerage commission or other like
payment in connection with any of the transactions contemplated hereby. The
fee of $75,000 which is payable to Walden Capital shall be the sole
obligation of FreeEDGAR, except that it will be paid by EOL pursuant to
Section 9.1 to the extent the combined fees of Perkins Coie LLP and
PricewaterhouseCoopers are less than $300,000.
2.25 INFORMATION AS TO FreeEDGAR
None of the representations or warranties made by FreeEDGAR in this
Agreement or in any agreement or document executed and delivered pursuant
hereto are false or misleading with respect to any material fact, or omit
to state any material fact necessary in order to make the statements
therein contained not misleading.
2.26 DISSENTERS RIGHTS
After FreeEDGAR complies with the requirements of Section 262 of the
DGCL, no more than 5% of the outstanding share of FreeEDGAR Capital Stock
immediately prior to the Effective Time, shall have perfected or indicated
their bona fide intention to perfect dissenters'
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rights under Section 262 of the DGCL.
3. REPRESENTATIONS AND WARRANTIES OF EOL AND
ACQUISITION CORP
EOL and Acquisition Corp. jointly and severally represent and warrant
to FreeEDGAR (up to and including the Closing) and to the holders of
FreeEDGAR Capital Stock (from and after the Closing) as follows:
3.1 ORGANIZATION, STANDING AND POWER
EOL and Acquisition Corp. are corporations duly organized, validly
existing and in good standing under the laws of the State of Delaware, each
with full corporate power and authority to own, lease and operate its
properties and to carry on its business as presently conducted by it. Each
of EOL and Acquisition Corp. is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction where the
character of the property owned or leased by it or the nature of its
activities makes it necessary for it to qualify to do business as a foreign
corporation, except for any such jurisdiction where the failure to so
qualify or be licensed, individually and in the aggregate for all such
jurisdictions, would not reasonably be expected to have a material adverse
effect upon EOL and Acquisition Corp., as a whole (an "EOL Material Adverse
Effect").
3.2 AUTHORITY
The execution and delivery by EOL and Acquisition Corp. of this
Agreement and of each agreement to be executed and delivered by either of
them pursuant hereto, the performance by them of their respective
obligations hereunder and thereunder, and the consummations of the
transactions contemplated hereby and thereby, have been duly and validly
authorized by all necessary corporate action on the part of EOL and
Acquisition Corp., and EOL and Acquisition Corp. have all necessary
corporate power with respect thereto. This Agreement is, and, when executed
and delivered by EOL and Acquisition Corp. each other agreement will be,
the valid and binding obligation of EOL and Acquisition Corp., to the
extent they are parties thereto, in accordance with their respective terms.
3.3 CAPITALIZATION
The authorized capital stock of EOL consists of 30,000,000 shares of
EOL Common Stock, of which 11,537,957 shares were issued and outstanding as
at June 30, 1999, and 1,000,000 shares of Preferred Stock, par value $.01
per share, none of which were issued and outstanding as at that date. The
authorized capital stock of Acquisition Corp. consists of 10,000 shares of
common stock, par value $.01 per share, of which 100 shares are issued and
outstanding and owned by EOL. All issued and outstanding shares of Common
Stock of EOL and Acquisition Corp. have been duly authorized and validly
issued and are fully paid and non-assessable. As at June 30, 1999, 850,500
shares of EOL Common Stock were issuable upon the exercise or conversion of
outstanding options, warrants, convertible securities or other rights to
acquire EOL Common Stock.
3.4 NONCONTRAVENTION
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Except as set forth on Schedule 3.4, neither the execution and
delivery by EOL and Acquisition Corp. of this Agreement or of any agreement
to be executed and delivered by them pursuant hereto, nor the consummation
of any of the transactions contemplated hereby or thereby, nor the
performance by EOL and Acquisition Corp. of any of their respective
obligations hereunder or thereunder, will (nor with the giving of notice or
the lapse of time or both would) (i) conflict with or result in a violation
or breach of, or a default under, any provision of their respective
Certificates of Incorporation or Bylaws or other organizational documents,
or (ii) conflict with, violate, breach, or constitute a default under,
accelerate any obligation under, or give rise to a right of termination,
amendment, or cancellation of any right or benefit under any of the terms,
conditions or provisions of any note, bond, mortgage, debt instrument,
credit facility, security agreement, lease, deed of trust, franchise,
indenture, license, agreement or other instrument, commitment or obligation
to which either EOL or Acquisition Corp. is a party or by which any
property of assets of EOL or Acquisition Corp. is bound, or require any
consent, approval or notice under the terms of any such document or
instrument, or (iii) conflict or violate any applicable order, writ,
injunction, decree, law, statute, ordinance, rule, judgment, regulation or
other restriction of any Governmental Entity having jurisdiction over EOL
and Acquisition Corp., or by which any property or asset of EOL or
Acquisition Corp. is bound or affected, or (iv) result in the creation or
imposition of any lien, claim, restriction, charge, equity or encumbrance
in favor of any third party upon any of assets of EOL or Acquisition Corp.,
or (v) interfere with or otherwise adversely affect the ability of the
Surviving Corporation to carry on its business after the Closing Date on
substantially the same basis as is now conducted by FreeEDGAR. No consent,
approval, order, or authorization of, or registration, declaration, or
filing with, any Governmental Entity is required by or with respect to
FreeEDGAR, EOL or Acquisition Corp. in connection with the execution and
delivery of this Agreement or the consummation by EOL and Acquisition Corp.
of the transactions contemplated hereby, other than the filing with the
Delaware Secretary of State of the certificate of merger required to effect
the Merger.
3.5 SECURITIES AND EXCHANGE COMMISSION FILINGS;
FINANCIAL STATEMENTS
EOL has filed all forms, registration statements, reports, statements
and documents required to be filed by it with the Securities and Exchange
Commission (the "SEC") since the initial public offering of its securities
on May 26, 1999 (collectively, the "SEC Reports"). EOL has delivered to
FreeEDGAR, in the form filed with the SEC (including any amendments
thereto) through the date hereof, (A) its Quarterly Reports on Form 10-Q
for the Quarter Ended June 30, 1999 (the "10-Q") and (B) its definitive
Prospectus dated May 26, 1999. None of the SEC Reports (except to the
extent revised or superseded by a subsequent filing with the SEC)
contained, as of the date that it was filed with the SEC, any untrue
statement of a material fact or omitted 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.
The financial statements included in the SEC Reports were prepared in
accordance with GAAP consistently applied (except as may be otherwise
indicated in the notes thereto), and fairly present the financial position
of EOL as at the dates thereof and its results of operations and cash flows
for the periods indicated, except that (i) any unaudited financial
statements are subject to normal reoccurring adjustments which might be
required as a result of year-end audits, and (ii) the 10-Q contains certain
departures from GAAP, as permitted by the SEC.
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3.6 STOCK ISSUABLE PURSUANT TO MERGER
The shares of EOL Common Stock into which the FreeEDGAR Capital Stock
will be converted as a result of the Merger will be duly authorized and
validly issued, and fully paid and non-assessable.
3.7 BROKERS
Except for VM Equity Partners and C.E. Unterberg, Towbin, no agent,
broker, person or firm acting on behalf of EOL or Acquisition Corp., or
under the authority of either of them, is or will be entitled to a
financial advisory fee, brokerage commission or other like payment in
connection with any of the transactions contemplated hereby. The fees which
are payable to VM Equity Partners and C.E. Unterberg, Towbin shall be the
sole obligation of EOL.
4. INDEMNIFICATION
4.1 INDEMNIFICATION BY THE SIGNIFICANT STOCKHOLDERS
As of the Closing, the Significant Stockholders will agree pursuant to
the terms of the Escrow Agreement to indemnify and hold EOL harmless from
and against any and all losses, obligations, deficiencies, liabilities,
claims, damages, costs and expenses (including, without limitation, the
amount of any settlement entered into pursuant hereto, and all reasonable
legal and other expenses incurred in connection with the investigation,
prosecution or defense of any matter indemnified pursuant hereto) which EOL
may sustain, suffer or incur and which arise out of or are caused by the
breach of any representation or warranty made by FreeEDGAR in this
Agreement or in any agreement or instrument executed and delivered pursuant
hereto. Anything contained in this Agreement or the Escrow Agreement to the
contrary notwithstanding, the aggregate indemnification obligation of the
Significant Stockholders shall not exceed the aggregate value of the 95,000
shares of EOL Common Stock deposited in escrow pursuant to the Escrow
Agreement by the Significant Stockholders (valued at the EOL Share Value).
Any indemnification claim under this section or the Escrow Agreement may be
satisfied by forfeiture of escrowed shares of EOL Common Stock, valued at
the EOL Share Value, or by payment in cash (in which case an equivalent
number of escrowed shares of EOL Common Stock valued at the EOL Share Value
shall be released from the Escrow Agreement). The form of the payment shall
be determined by a majority in interest of the Significant Stockholders.
4.2 INDEMNIFICATION BY EOL
EOL shall indemnify and hold the holders of FreeEDGAR Capital Stock
harmless from and against any and all losses, obligations, deficiencies,
liabilities, claims, damages, costs and expenses (including, without
limitation, the amount of any settlement entered into pursuant hereto, and
all reasonable legal and other expenses incurred in connection with the
investigation, prosecutor defense of any matter indemnified pursuant
hereto), which they may sustain, suffer or incur and which arise out of or
are caused by the breach by EOL or Acquisition Corp. of any representation,
warranty or covenant made by it in this Agreement or in any agreement or
instrument executed and delivered pursuant hereto. Anything contained in
this Agreement or the Escrow Agreement to the contrary notwithstanding, the
aggregate indemnification obligation of EOL and Acquisition Corp. shall not
exceed the aggregate value of 95,000 shares of EOL
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<PAGE> 26
Common Stock (valued at the EOL Share Value).
4.3 THIRD PARTY CLAIMS
If a claim by a third party is made against any party or parties
hereto and the party or parties against whom said claim is made intends to
seek indemnification with respect thereto under Sections 4.1 or 4.2, the
party or parties seeking such indemnification shall promptly notify the
indemnifying party or parties, in writing, of such claim; provided,
however, that the failure to give such notice promptly shall not affect the
rights of the indemnified party or parties hereunder unless such failure
materially and adversely affects the indemnifying party or parties. In case
such action is brought against any indemnified party and it notifies the
indemnifying party of the commencement thereof, the indemnifying party
shall have the right to participate in, and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel reasonably satisfactory to such
indemnified party, provided, however, if the defendants in any action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are
different from or in addition to those available to the indemnifying party,
or if there is a conflict of interest which would prevent counsel for the
indemnifying party from also representing the indemnified party, the
indemnified party or parties have the right to select separate counsel to
participate in the defense of such action on behalf of such indemnified
party or parties. After notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party pursuant to
the provisions of Sections 4.1 or 4.2 for any legal or other expense
subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation unless (i) the
indemnified party shall have employed counsel in accordance with the
provisions of the preceding sentence, (ii) the indemnifying party shall not
have employed counsel reasonably satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after the notice
of the commencement of the action or (iii) the indemnifying party has
authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party.
5. NONDISCLOSURE;
5.1 NONDISCLOSURE OF CONFIDENTIAL INFORMATION
(a) As used in this paragraph 5, the term "Confidential Information"
shall mean any and all information (oral and written) relating to either of
EOL and FreeEDGAR, other than such information which can be shown to be in
the public domain (such information not being deemed to be in the public
domain merely because it is embraced by more general information which is
in the public domain) other than as the result of a breach of the
provisions of subparagraph 5.1(b) hereof, including, but not limited to,
information relating to: identity and description of products and services
sold; costs; pricing; sources; technology; research, test procedures and
results; customers and prospects; marketing; and selling and servicing.
(b) Each of the parties to this Agreement agrees not to, at any time
prior to the Closing, directly or indirectly, use, communicate, disclose or
disseminate any Confidential Information in any manner whatsoever, unless
required to do so by applicable law or as reasonably required to consummate
the transactions contemplated pursuant to this Agreement.
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5.2 INJUNCTIVE RELIEF
The parties hereby acknowledge and agree that (i) the other party
would be irreparably injured in the event of a breach of any of the
obligations under this Section 5, (ii) monetary damages would not be an
adequate remedy for any such breach, and (iii) the nonbreaching party shall
be entitled to injunctive relief, in addition to any other remedy which it
may have, in the event of any such breach. It is hereby also agreed that
the existence of any claims which any party may have against the other
party, whether under this Agreement or otherwise, shall not be a defense to
the enforcement of any of the rights under this Section 5.
5.3 SCOPE OF RESTRICTION
It is the intent of the parties hereto that the covenants contained in
this Section 5 shall be enforced to the fullest extent permissible under
the laws of and public policies of each jurisdiction in which enforcement
is sought (the parties hereby acknowledging that said restrictions are
reasonably necessary for the protection of the other party or parties).
Accordingly, it is hereby agreed that if any one or more of the provisions
of this Section 5 shall be adjudicated to be invalid or unenforceable for
any reason whatsoever, said provision shall be (only with respect to the
operation thereof in the particular jurisdiction in which such adjudication
is made) construed by limiting and reducing it so as to be enforceable to
the extent permissible.
5.4 ADDITIONAL UNDERTAKINGS
The provisions of this Section 5 shall be in addition to, and not in
lieu of, any other obligation that any or all of the parties may have with
respect to the subject matter hereof, whether arising as a matter of
contract, by law or otherwise.
6. ADDITIONAL COVENANTS
6.1 INVESTIGATION
Between the date hereof and the Closing Date, EOL may, directly and
through its representatives, make such investigation of FreeEDGAR and their
respective businesses, assets and liabilities as it deems necessary or
advisable, but such investigation shall not affect any of the
representations and warranties contained herein or in any instrument or
document delivered pursuant hereto. In furtherance of the foregoing, EOL
and its representatives shall have, at all reasonable times after the date
hereof, full access to the premises and to the books and records of
FreeEDGAR, and FreeEDGAR shall furnish to EOL and its representatives such
financial and operating data and other information as may be from time to
time reasonably requested. Except in connection with its evaluation of the
transactions contemplated hereby, EOL shall use its reasonable best efforts
not to disclose or use any confidential information which it obtains in
connection with the foregoing until the transactions contemplated hereby
are consummated or said information becomes otherwise lawfully
ascertainable from other sources. In the event that the Merger is not
consummated for any reason whatsoever, EOL agrees that it shall return to
FreeEDGAR or destroy all documents, workpapers and other written materials
which were obtained or created by it during the course of such
investigation which constitute Confidential Information.
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6.2 CONSUMMATION OF TRANSACTION
Each of the parties hereto hereby agrees to use its reasonable best
efforts to cause all conditions precedent to his or its obligations and to
the obligations of the other parties hereto to consummate the transactions
contemplated hereby to be satisfied, including, but not limited to, using
its best efforts to obtain all required consents, waivers, amendments,
modifications, approvals, authorizations, novations and licenses; provided,
however, that nothing herein contained shall be deemed to modify any of the
absolute obligations imposed upon any of the parties hereto under this
Agreement or any agreement executed and delivered pursuant hereto.
6.3 COOPERATION
Each of the parties hereto hereby agrees to fully cooperate with the
other parties hereto in preparing and filing any notices, applications,
reports and other instruments and documents which are required by, or which
are desirable in the reasonable opinion of any of the parties hereto in
respect of, any statute, rule, regulation or order of any governmental or
administrative body in connection with the transactions contemplated
hereby.
6.4 ACCURACY OF REPRESENTATIONS
Each party hereto agrees that prior to the Closing Date he or it will
enter into no transaction and take no action, and will use its reasonably
best efforts to prevent the occurrence of any event, which would result in
any of its representations, warranties or covenants contained in this
Agreement or in any agreement, document or instrument delivered pursuant
hereto not to be true and correct in all material respects, or not to be
performed as contemplated, at and as of the time immediately following the
occurrence of such transaction or event.
6.5 CONDUCT OF BUSINESS OF FreeEDGAR PENDING MERGER
During the period from the date hereof to the Effective Time, except
pursuant to the terms hereof or unless EOL shall otherwise consent in
writing, FreeEDGAR shall (i) carry out its operations only in the ordinary
course of business and in a manner consistent with past practice and in
compliance with applicable laws; (ii) use its best efforts to keep
available the services of their present officers, employees,
representatives and agents and not terminate the services of any employee
(other than for good reason and with prior written notice to EOL); and
(iii) preserve its present relationships with customers, suppliers and
other persons with which it has business relations. By way of illustration
and not limitation, between the date of this Agreement and the Effective
Time, FreeEDGAR shall not, directly or indirectly, do or commit to do any
of the following without the prior written consent of EOL:
(a)(i) Declare, set aside or pay any dividends on, or make any other
distributions in respect of, any of its common stock, (ii) split, combine
or reclassify any of its common stock or issue or authorize the issuance of
any other securities in respect of, in lieu of or in substitution for
shares of its common stock; or (iii) purchase, redeem or otherwise acquire
any shares of common stock of any entities or any other securities thereof
or any rights, warrants or options to acquire any such shares or other
securities.
(b) Authorize for issuance, issue, deliver, sell or agree to
commit to issue, sell
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or deliver (whether through the issuance or
granting of options, warrants, commitments, subscriptions, rights to
purchase or otherwise), pledge or otherwise encumber any shares of its
common stock, any other voting securities or any securities
convertible into, or any rights, warrants or options to acquire, any
such shares, voting securities convertible securities or any other
securities or equity equivalents.
(c) (i) Increase the salary, compensation or fringe benefits of
any of its directors, officers or employees, (ii) enter into any
employment arrangement other than in the ordinary course of business
consistent with past practice, with any other employee of FreeEDGAR,
(iii) establish, adopt, enter into or amend or terminate any written
agreement or other plan, agreement, trust, fund, policy or arrangement
for the benefit of any directors, officers or employees, (iv)
notwithstanding any agreement to the contrary, pay any bonus, salary
or compensation to any of its directors, officers or employees or (v)
issue, grant or make any stock based awards to any of its directors,
officers or employees.
(d) Amend its Certificate of Incorporation, Bylaws or other
comparable charters or organizational documents or alter through
merger, liquidation, reorganization, restructuring or in any other
fashion the corporate structure or ownership of FreeEDGAR.
(e) Acquire or agree to acquire (i) by merging or consolidating
with, or by purchasing a substantial portion of the stock or assets
of, or by any other manner, any business or corporation, partnership,
joint venture, association or other business organization or division
thereof, or (ii) any assets that are material, individually or in the
aggregate, to FreeEDGAR, except purchases consistent with past
practice.
(f) Sell, lease, license, mortgage or otherwise encumber or
subject to any lien or otherwise dispose of any of its properties or
assets, except sales in the ordinary course of business consistent
with past practice.
(g) Incur any indebtedness for borrowed money or guarantee any
such indebtedness of another person, issue or sell any debt securities
or warrants or other rights to acquire any debt securities of
FreeEDGAR, guarantee any debt securities of another person, or enter
into any arrangement having the economic effect of any of the
foregoing, except for short-term borrowings incurred in the ordinary
course of business consistent with past practice.
(h) Enter into any agreement, contract, commitment, whether or
not in the ordinary course of business, involving a commitment on the
part of FreeEDGAR to purchase, sell, lease or otherwise dispose of
assets or require payment by any or all of FreeEDGAR in excess of
$25,000.
(i) Expend funds for capital expenditures unless otherwise
consented to in writing by EOL.
(j) Adopt a plan of complete or partial liquidation or
resolutions providing for or authorizing such a liquidation or
dissolution, merger, consolidation, restructuring, recapitalization or
reorganization.
(k) Recognize any labor union (unless legally required to do so)
or enter into
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or amend any collective bargaining agreement.
(l) Change any accounting principles used by them, unless
otherwise consented to in writing by EOL.
(m) Make any tax election or settle or compromise any income tax
liability or file any federal income tax return prior to the last day
(including extensions) prescribed by law, in the case of any of the
foregoing, material to the business, financial condition or results of
operations of FreeEDGAR.
(n) Settle or compromise any litigation in which FreeEDGAR is a
defendant (whether or not commenced prior to the date of this
Agreement) or settle, pay or compromise any claims not required to be
paid.
(o) Authorize or permit any of its officers, directors or
employees or any investment banker, financial advisor, attorney,
accountant or other representative, to solicit, initiate or encourage
(including by way of furnishing information) or take any other action
to facilitate, any inquiries or the making of any proposal which
constitutes, or may reasonably be expected to lead to any Alternate
Transaction (as hereinafter defined) or enter into any arrangement or
negotiations of any type relating to the sale or other disposition of
a material portion of FreeEDGAR's assets (other than in the ordinary
course of business) or FreeEDGAR's capital stock (including any merger
or consolidation involving FreeEDGAR.
(p) Authorize any of, or commit or agree to take any of the
foregoing actions.
6.6 FreeEDGAR HEADQUARTERS
EOL agrees for the period from the Effective Time until February 29,
2000, not to move the principal offices of FreeEDGAR more than 15 miles
from 10635 NE 38th Place, Kirkland, Washington (the "Kirkland Office").
6.7 FreeEDGAR EMPLOYEES
In the event that EOL desires to terminate the services of any present
employee of FreeEDGAR prior to February 29, 2000, EOL shall provide such
employee with 60 days prior notice and if EOL desires to terminate the
services of any present employee of FreeEDGAR during the period commencing
on March 1, 2000 through the first anniversary date of the date hereof, EOL
shall provide such employee with 30 days prior notice.
6.8 SALES TAXES, ETC.
The holders of FreeEDGAR Capital Stock shall be responsible for, and
shall pay, any and all sales taxes, transfer taxes and similar charges
which became payable as a result of transactions contemplated hereby.
6.9 FURTHER ASSURANCES
The parties hereto shall from time to time after the Closing Date, at
their sole cost and expense, take any and all actions, and execute,
acknowledge, deliver, file and/or record any
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and all documents and instruments, as the other party may reasonably
request in order to more fully perfect the rights which are intended to be
conveyed hereunder.
7. CONDITIONS OF MERGER
7.1 CONDITIONS TO OBLIGATIONS OF EOL AND ACQUISITION
CORP. TO EFFECT THE MERGER
The respective obligations of EOL and Acquisition Corp. to effect the
Merger shall be subject to the fulfillment at or prior to the Closing Date
of the following conditions:
(a) ACCURACY OF REPRESENTATIONS AND WARRANTIES
The representations and warranties of FreeEDGAR contained in this
Agreement or in any document, agreement or instrument delivered by any or
all of them pursuant hereto shall have been true in all material respects
when made, and, in addition, shall be true, in all material respects, on
and as of the Closing Date with the same force and effect as though made on
and as of the Closing Date.
(b) PERFORMANCE OF AGREEMENTS
FreeEDGAR and the Significant Stockholders shall have performed, in
all material respects, all obligations and agreements, and complied, in all
material respects, with all covenants and conditions, contained in this
Agreement or in any document, agreement or instrument delivered by any or
all of them pursuant hereto and required to be performed or complied with
by any or all of them at or prior to the Closing Date.
(c) CERTIFICATES
FreeEDGAR shall have each furnished EOL with a certificate, dated the
Closing Date, to the effect that he has fulfilled the conditions specified
in subparagraphs 7.1(a) and 7.1(b) above.
(d) OPINION OF COUNSEL FOR FreeEDGAR
EOL shall have received an opinion of Perkins Coie LLP, counsel for
FreeEDGAR, dated the Closing Date, in substantially the form of Exhibit C
attached hereto.
(e) LITIGATION
No order of any court or administrative agency shall be in effect
which restrains or prohibits the transactions contemplated hereby, and no
suit, action, inquiry, investigation or proceeding in which it will be, or
it is, sought to restrain, prohibit or change the terms of or obtain
damages or other relief in connection with this Agreement or any of the
transactions contemplated hereby, and which in the reasonable judgment of
EOL makes it inadvisable to proceed with the consummation of such
transactions, shall have been instituted or threatened by any person or
entity.
(f) CONSENTS AND APPROVALS
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All consents, waivers, approvals, licenses and authorizations by third
parties and governmental and administrative authorities (and all amendments
or modifications to existing agreements with third parties) required as a
precondition to the performance by FreeEDGAR and the Significant
Stockholders of their respective obligations hereunder and under any
agreement delivered pursuant hereto, or which in EOL's reasonable judgment
are necessary to continue unimpaired any rights in and to the assets or
business of FreeEDGAR which could be impaired by the Merger, shall have
been duly obtained and shall be in full force and effect. Specifically and
not by way of limitation of any consents, waivers, approvals, licenses and
authorizations required to be delivered hereunder, FreeEDGAR shall have
received from each of Reuters and Standard & Poor's (i) a waiver of any
rights that it may have to change its current contractual or other
relationship with FreeEDGAR (either through exercise of any right under, or
amendment, modification, cancellation or termination of, its agreement and
other understanding with FreeEDGAR) as a result of the execution of this
Agreement and the consummation of the transactions contemplated hereby and
(ii) a reaffirmation of its current contractual or other relationship with
the Surviving Corporation as of the Effective Time.
(g) NO MATERIAL ADVERSE CHANGE
There shall not have occurred after the date hereof, in the reasonable
judgment of EOL, a material adverse change in the condition (financial or
otherwise), business, assets, prospects, liabilities or results of
operations of FreeEDGAR, taken as a whole, it being acknowledged that
FreeEDGAR will continue to incur operating losses consistent with the
previous three month period as have been reported in writing to EOL.
(h) ESCROW FUND
The Significant Stockholders shall have established the Escrow Fund as
contemplated in Section 1.5.11 hereof.
(i) CONVERSION OF REUTERS DEBT
All indebtedness of FreeEDGAR in favor of Reuters shall have been
converted into shares of FreeEDGAR Series B Preferred Stock.
(j) RELEASE OF UCC FINANCING STATEMENTS
The UCC-1 Financing Statements and other UCC filings naming FreeEDGAR
as debtor in favor of Reuters shall have been terminated and the liens on
the property covered by these financing statements shall have been
released.
(k) APPROVAL OF THE MERGER BY HOLDERS OF
FreeEDGAR CAPITAL STOCK
Holders of at least a majority of the outstanding voting shares of
FreeEDGAR Capital Stock and the holders of a majority of the outstanding
shares of each of FreeEDGAR Series A Preferred Stock and FreeEDGAR Series B
Preferred Stock shall have consented to the Merger.
(l) INTENTIONALLY LEFT BLANK (OR ELSE RE-NUMBER)
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(m) LIMIT ON DISSENTERS RIGHTS
The holders of no more than 5% of the outstanding shares of FreeEDGAR
Capital Stock shall have perfected or indicated their bona fide intention
to perfect dissenters' rights under applicable Delaware corporate law.
(n) INVESTOR REPRESENTATION LETTERS
A majority of the holders of shares of FreeEDGAR Capital Stock shall
have executed and delivered to EOL, investor representation letters, in
substantially the form of Exhibit D attached hereto and made a part hereof.
(o) EMPLOYMENT AGREEMENT
On or prior to the Closing Date, EOL and each of Mark Schnitzer, Dave
Hamburg and Edward S. Gold, shall have executed and delivered an Employment
Agreement in substantially the form of Exhibit E attached hereto.
(p) CONSENT TO ASSIGNMENT OF LEASE
On or prior to the Closing Date, FreeEDGAR shall obtain the written
consent of the landlord of FreeEDGAR's principal executive offices located
at the Kirkland Office to assign the lease for such premises on the same
terms and conditions as are in effect prior to the Closing Date.
(q) TERMINATION OF STOCKHOLDERS AGREEMENT
On or prior to the Closing Date, the Stockholders Agreement dated as
of March 12, 1996, as amended from time to time, by and among FreeEDGAR and
the Stockholders (as defined therein) shall have been terminated by
FreeEDGAR and the Stockholders effective on or before the Effective Time.
7.2 CONDITIONS TO OBLIGATIONS OF FreeEDGAR TO
EFFECT THE MERGER
The obligations of FreeEDGAR to effect the Merger shall be subject to
the fulfillment at or prior to the Closing Date of the following
conditions:
(a) ACCURACY OF REPRESENTATIONS AND WARRANTIES
The representations and warranties of EOL and Acquisition Corp.
contained in this Agreement or in any document, agreement or instrument
delivered by it pursuant hereto shall have been true when made, and, in
addition, shall be true, in all material respects, on and as of the Closing
Date with the same force and effect as though made on and as of the Closing
Date.
(b) PERFORMANCE OF AGREEMENTS
EOL and Acquisition Corp. shall have performed, in all material
respects, all obligations and agreements, and complied, in all material
respects, with all covenants and
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conditions, contained in this Agreement or in any document, agreement
or instrument delivered by them pursuant hereto and required to be
performed or complied with by them at or prior to the Closing Date.
(c) CERTIFICATES
EOL and Acquisition Corp. shall have furnished the Significant
Stockholders with certificates, executed by a responsible executive
officers of EOL and Acquisition Corp., dated the Closing Date, to the
effect that each of them has fulfilled the conditions specified in
subsections 7.2(a) and 7.2(b) hereof.
(d) OPINION OF COUNSEL FOR EOL AND ACQUISITION
CORP
FreeEDGAR shall have received an opinion of Littman Krooks Roth & Ball
P.C., counsel for EOL and Acquisition Corp., dated the Closing Date, in
substantially the form of Exhibit F attached hereto and made a part hereof.
(e) LITIGATION
No order of any court or administrative agency shall be in effect
which restrains or prohibits the transactions contemplated hereby, and no
suit, action, inquiry, investigation or proceeding in which it will be, or
it is, sought to restrain, prohibit or change the terms of or obtain
damages or other relief in connection with this Agreement or any of the
transactions contemplated hereby, and which in the reasonable judgment of
the Significant Stockholders makes it inadvisable to proceed with the
consummation of such transactions, shall have been instituted or threatened
by any person or entity.
(f) NO MATERIAL ADVERSE CHANGE
There shall not have occurred after the date hereof, in the reasonable
judgment of FreeEDGAR, a material adverse change in the condition
(financial or otherwise), business, assets, prospects, liabilities or
results of operations of EOL.
(g) SEC FILINGS
There shall have delivered to FreeEDGAR copies of all filings made by
EOL with the Securities and Exchange Commission since the consummation of
its initial public offering of securities.
(h) EMPLOYMENT AGREEMENT
On or prior to the Closing Date, EOL and each of Mark Schnitzer, Dave
Hamburg and Edward S. Gold shall have executed and delivered an Employment
Agreement in substantially the form of Exhibit D attached hereto.
8. TERMINATION, AMENDMENT AND WAIVER
8.1 TERMINATION
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This Agreement may be terminated at any time prior to the
Effective Time:
(a) By mutual consent of EOL and FreeEDGAR; or
(b) By either EOL, on the one hand, or FreeEDGAR, on the other hand,
if (i) the Merger shall not have been consummated by September 10, 1999;
provided, however, that either EOL and FreeEDGAR may extend such date until
October1, 1999; provided, further, however, that the right to terminate
this Agreement under this subparagraph 8.1(b)(i) shall not be available to
any party whose failure to fulfill any obligation under this Agreement has
been the cause of, or resulted in, the failure of the Effective Time to
occur on or before such date, or (ii) a court of competent jurisdiction or
governmental, regulatory or administrative agency or commission shall have
issued an order, decree or ruling or taken any other action (which order,
decree, ruling or other action the parties hereto shall have used their
reasonable best efforts to vacate), in each case permanently restraining,
enjoining or otherwise prohibiting the transactions contemplated by this
Agreement, or (iii) by either party if (A) there has been a material breach
of a representation or warranty by the other such that the conditions to
this Agreement cannot be satisfied, or (B) there has been a willful breach
of a covenant by the other which has not been cured by the breaching party.
8.2 EFFECT OF TERMINATION
In the event of the termination of this Agreement as provided in
paragraph 8, except with respect to (A) subparagraphs 5.1, 6.1, 8.3 and
9.1, and (B) liability for any breach of any obligation, covenant or
agreement contained herein or any failure of the representations and
warranties contained herein to have been true if such breach or failure
results from the intentional, willful or grossly negligent conduct of any
party hereto, this Agreement shall forthwith become null and void, and
there shall be no liability on the part of any party hereto.
8.3 CERTAIN PAYMENTS BY FreeEDGAR AND THE SIGNIFICANT
STOCKHOLDERS
In order to induce EOL to execute and deliver this Agreement and to
expend the resources necessary to implement the transactions contemplated
hereby, in the event that (A) the Merger is abandoned by FreeEDGAR under
circumstances that constitute a breach by FreeEDGAR of its obligations
hereunder, or (B) under circumstances which do not constitute such a breach
and prior to November 11, 1999 (the "End Date") (provided, however, in the
event that EOL and FreeEDGAR agree to terminate this Agreement, then the
End Date shall be 60 days from such mutual agreement), FreeEDGAR reaches an
agreement, come to a mutual understanding as to terms, execute a letter of
intent or definitive agreement or publicly announce an agreement in
principle with regard to a transaction or series of transactions with a
party other than EOL or Acquisition Corp. relating to a sale or other
disposition of capital stock, assets or business of FreeEDGAR or enters
into any other transaction (other than financing or other transactions in
the ordinary course of business) which causes or results in FreeEDGAR or
its stockholders not being able to consummate the transactions contemplated
by this Agreement (an "Alternate Transaction"), then, in any such event,
FreeEDGAR shall pay to EOL on the date of the breach or the End Date, as
the case may be, $500,000.
9. GENERAL PROVISIONS
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9.1 FEES AND EXPENSES
Except as may be otherwise specifically provided herein, each of the
parties hereto shall bear its own expenses in connection with the
transactions contemplated hereby. In the event that the Merger is
consummated, however, FreeEDGAR's out-of-pocket transaction expenses shall,
as between EOL and FreeEDGAR (on the one hand) and the holders of FreeEDGAR
Capital Stock (on the other hand), be deemed to be expenses of the holders
of FreeEDGAR Capital Stock; provided, however, that EOL shall pay an
aggregate of $300,000 of the costs and expenses of FreeEDGAR incident to
the implementation of the transactions contemplated hereby. Any excess
transaction expenses shall be reimbursed, if paid by EOL or FreeEDGAR, by
the Significant Stockholders.
9.2 AMENDMENT
This Agreement may not be amended except by a written instrument
executed by the parties hereto.
9.3 WAIVER
At any time prior to the Effective Time, any party hereto may (a)
extend the time for the performance of any of the obligations or other acts
of the other parties hereto, (b) waive any inaccuracies in the
representations and warranties contained herein or in any document
delivered pursuant hereto and (c) waive compliance with any of the
agreements or conditions contained herein. Any such extension or waiver
shall be valid only if set forth in an instrument in writing signed by the
party or parties to be bound thereby.
9.4 SURVIVAL OF REPRESENTATIONS AND WARRANTIES
Each of the parties hereto hereby agrees that all representations and
warranties made by or on behalf of it in this Agreement or in any document
or instrument delivered pursuant hereto shall survive the Closing Date
until the earlier of (i) the date on which EOL files its Annual Report on
Form 10-K for its 1999 fiscal year with the Securities and Exchange
Commission, and (ii) April 15, 2000. In all cases, the expiration of the
relevant period shall not affect any claim for breaches of representations
and warranties if written notice thereof, in reasonable detail, is given to
the breaching party or persons prior to such date.
9.5 NOTICES
All notices, requests, demands and other communications given
hereunder shall be in writing and shall be deemed to have been duly given:
(i) on the date of delivery, if delivered personally or by messenger, (ii)
on the first business day following the date of timely deposit with Federal
Express or other nationally recognized overnight courier service, if sent
by such courier specifying next day delivery, (iii) upon receipt of
confirmation of transmission, if transmitted by telecopier; and (iv) on the
third business day after mailing, if mailed by registered or certified mail
(postage prepaid, return receipt requested); provided, however, that a
notice of change of address or telecopier number shall not be deemed to
have been given until actually received by the addressee. All such notices,
requests, demands and other communications shall be addressed as set forth
below or to such other address or telecopier number as either party
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hereto may designate to the other party hereto by like notice:
If to EOL:
EDGAR Online, Inc.
50 Washington Street
12th Floor
Norwalk, CT 06854
Telecopier No.: (203) 852-5667
Attn: Susan Strausberg, Chief Executive Officer
Tom Vos, President
With a copy to:
Littman Krooks Roth & Ball, P.C.
655 Third Avenue
New York, New York 10017
Telecopier No.: (212) 490-2990
Attn: Mitchell C. Littman, Esq.
If to FreeEDGAR:
FreeEDGAR.com, Inc.
10635 NE 38th Place, Suite B
Kirkland, WA 98033
Telecopier No.: (425) 827-4708
Attn: Mark Schnitzer, President
With a copy to:
Perkins Coie LLP
1201 Third Avenue, 40th Floor
Seattle, WA 98101-3099
Telecopier No.: (206) 583-8500
Attn: Gregory Gorder, Esq.
9.6 PRESS RELEASES
EOL and FreeEDGAR shall consult with each other prior to issuing any
press release or otherwise making any public statement with respect to the
contents of this Agreement or the transactions contemplated hereby, and
none of the parties hereto shall, and FreeEDGAR shall not issue any such
press release or make any such public statement prior to such consultation,
except as may be required by law.
9.7 INTERPRETATION
As used in this Agreement, unless the context otherwise requires:
words describing the singular number shall include the plural and vice
versa; words denoting any gender shall include all genders; words denoting
natural persons shall include corporations, partnerships and other
entities, and vice versa; and the words "hereof", "herein" and "hereunder",
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and words of similar import, shall refer to this Agreement as a whole,
and not to any particular provision of this Agreement.
9.8 ENTIRE AGREEMENT
This Agreement, the agreements referred to herein, and the other
agreements and instruments delivered pursuant hereto and thereto,
constitute the entire agreement, and supersede all prior agreements,
understandings, undertakings, inducements or conditions, both written and
oral, express or implied, among the parties, or any of them, with respect
to the subject matter hereof, including, without limitation, the letter of
intent dated July 25, 1999, between EOL and FreeEDGAR, as amended..
9.9 NO ASSIGNMENT
This Agreement may not be assigned, by operation of law or otherwise,
without the prior written consent of all of the parties hereto. This
Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective heirs, legal representatives,
successors and permitted assigns.
9.10 HEADINGS
Headings in this Agreement are for convenience of reference only, and
shall not affect the interpretation of any of the provisions hereof.
9.11 GOVERNING LAW; JURISDICTION
Except to the extent that the laws of any other jurisdiction shall
mandatorily apply to the Merger, this Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York, without
regard to the principles of conflict of laws. FreeEDGAR hereby irrevocably
submits to the jurisdiction of any New York State or United States federal
court sitting in New York County over any action or proceeding arising out
of or relating to this agreement or any agreement contemplated hereby, and
FreeEDGAR hereby irrevocably agrees that all claims in respect of such
action or proceeding may be heard and determined in such New York State or
federal court. FreeEDGAR further waives any objection to venue in such
state and any objection to an action or proceeding in such state on the
basis of a non-convenient forum. FreeEDGAR further agrees that any action
or proceeding brought against EOL or Acquisition Corp. or any of their
respective principals shall be brought only in New York State or United
States federal courts sitting in New York county. Service of process may be
made upon FreeEDGAR by mailing a copy thereof to it, by United States
certified or registered mail, at its address set forth on page one hereof.
9.12 COUNTERPARTS
This Agreement may be executed in one or more counterparts, and by the
different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original, but all of which taken together
shall constitute one and the same agreement.
9.13 THIRD PARTY BENEFICIARIES
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Nothing in this Agreement, express or implied, is intended to confer
upon any person or entity other than the parties hereto and their
respective heirs, legal representatives, successors and permitted assigns,
any rights, remedies, obligations or liabilities under or by reason of this
Agreement.
9.14 SCHEDULES
The Schedules delivered pursuant to this Agreement are an integral
part hereof, and are considered to be part of the representations and
warranties to which they relate. Each such Schedule shall be in writing,
shall indicate the subparagraph pursuant to which it is being delivered,
and shall be initialed by the delivering party.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement as of the date first above written.
EDGAR ONLINE, INC.
By: /s/
-----------------------------------------------
Name: Tom Vos
Title: President
FREEEDGAR ACQUISITION CORP.
By: /s/
----------------------------------------------
Name: Tom Vos
Title: CEO
FREEEDGAR.COM, INC.
By: /s/
----------------------------------------------
Name: Mark Schnitzer
Title: President
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