EXHIBIT 10.1
AGREEMENT AND PLAN OF MERGER
BY AND BETWEEN
▇▇▇▇▇▇▇▇▇▇.▇▇▇, INC.
(a Delaware corporation)
and
MOBILEPRO CORP.
(a Delaware corporation)
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER dated as of June 1, 2001, by and between
▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc., a Delaware corporation ("CraftClick"), and Mobilepro
Corp., a Delaware corporation ("Mobilepro").
W I T N E S S E T H:
WHEREAS, CraftClick desires to acquire Mobilepro, and Mobilepro desires
to be acquired by CraftClick, through the merger of Mobilepro with and into
CraftClick pursuant to the terms hereinafter set forth (the "Merger") with
CraftClick being the surviving corporation; and
WHEREAS, CraftClick and Mobilepro each intend, for Federal income tax
purposes, that the Merger contemplated thereby constitutes a reorganization
pursuant to Section 368(a) of the Internal Revenue Code of 1986, as amended (the
"Code"); and
WHEREAS, the Board of Directors of CraftClick deems it advisable and in
the best interest of CraftClick that Mobilepro be merged with and into
CraftClick upon the terms and conditions hereinafter specified; and
WHEREAS, the Board of Directors of Mobilepro deems it advisable and in
the best interest of Mobilepro that Mobilepro be merged with and into CraftClick
upon the terms and conditions hereinafter specified; and
WHEREAS, CraftClick has an authorized capital stock consisting of
50,000,000 shares of common stock, $.001 par value per share (the "CraftClick
Common Stock"), of which 557,196 shares are currently issued and outstanding,
5,000,000 shares of preferred stock, $.001 par value per share (the "CraftClick
Preferred Stock"), of which no shares are currently issued or outstanding, and
35,425 shares of Series A Preferred Stock, $.001 par value, of which 35,378 are
issued and outstanding; and
WHEREAS, Mobilepro has an authorized capital stock consisting of
14,000,000 shares of common stock, $.001 par value per share (the "Mobilepro
Common Stock"), of which shares 14,000,000 are currently issued and outstanding;
and 10,000,000 shares of Preferred Stock, $001 par value per share (the
"Mobilepro Preferred Stock"), of which no shares are currently issued or
outstanding; and
WHEREAS, Mobilepro has no outstanding common stock purchase warrants
and options entitling the holders thereof to purchase any shares of Mobilepro
Common Stock; and
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter contained, the parties hereto, intending to be legally bound hereby,
agree as follows:
ARTICLE 1
ADOPTION OF AGREEMENT AND PLAN OF MERGER
1.1 The Merger. At the Effective Time (as defined in Section 1.2
herein), in accordance with this Agreement and the relevant provisions of the
Delaware General Corporation Law ("DGCL"), Mobilepro shall be merged with and
into CraftClick. CraftClick shall be the Surviving Corporation to the Merger
(the "Surviving Corporation"), and CraftClick shall continue, and be deemed to
continue, for all purposes after the Merger. The existence of Mobilepro shall
cease at the Effective Time as a consequence of the Merger.
1.2 Effective Date of the Merger. This Agreement shall be submitted to
the stockholders of Mobilepro as provided in Section 5.4 hereof, for approval as
soon as practicable after the execution of this Agreement. Subject to the terms
and conditions hereof, including, without limitation, CraftClick's and
Mobilepro's right to terminate this Agreement without liability in accordance
with Article IX hereof, as soon as practicable after the authorization, approval
and adoption of this Agreement by the affirmative vote of the holders of not
less than a majority of the outstanding shares of Mobilepro Common Stock
pursuant to Section 252 of the DGCL, a copy of the Certificate of Merger
substantially in the form annexed hereto as Exhibit A (the "Certificate of
Merger"), shall be executed in accordance with Section 252 of the DGCL and
delivered to the Secretary of State of the State of Delaware (the time of such
filings being the "Effective Time" and the date of such filings being the
"Effective Date").
1.3 Surviving Corporation. Following the Merger, CraftClick shall
continue to exist under, and be governed by, the laws of the State of Delaware,
and the Certificate of Incorporation and the By-Laws of CraftClick will be the
constituent documents of the Surviving Corporation.
1.4 Directors and Officers. The director and officers of the Surviving
Corporation immediately following the Merger shall be as follows:
Name Positions
--------------- -----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇ President, Chief Executive Officer and
Chairman
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Director
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Such directors and officers shall continue to hold office until the next annual
meetings of the stockholders and directors of the Surviving Corporation or until
their successors shall have been duly elected and shall have qualified.
1.5 Plan of Merger. The method of effecting the Merger and the basis
for exchanging and converting (i) the outstanding Mobilepro Common Stock into
shares of Common Stock of the Surviving Corporation (the "Surviving Corporation
Common Stock"), and (ii) the outstanding Mobilepro Warrants and Options into
warrants to purchase shares of Surviving Corporation Common Stock and options to
purchase shares of Surviving Corporation Common Stock, as the case may be, shall
be as follows:
(a) Each issued and outstanding share of Mobilepro Common Stock
shall, at the Effective Time, by virtue of the Merger and without further
action, be deemed canceled and cease to exist and, upon presentation for
surrender of a certificate representing such share by each stockholder of
Mobilepro participating in the Merger (collectively, the "Participating
Stockholders"), shall be converted into 0.62500 share of Surviving Corporation
Common Stock, all of which will be deemed "restricted stock" as that term is
defined in the regulations of the Securities and Exchange Commission,
promulgated under the Securities Act of 1933, as amended.
(b) (i) Notwithstanding Section 1.5(a) above shares of Mobilepro
Common Stock which are held by a stockholder of Mobilepro who has properly
preserved and perfected dissenters' rights with respect to such shares
("Dissenting Stockholder") pursuant to Section 262 of the Delaware General
Corporate Law (the "DGCL") shall not be converted into the right to receive
shares of Surviving Corporation Common Stock pursuant to Section 1.5(a)(i)
hereof, and instead shall be treated in accordance with those provisions of the
DGCL unless and until the right of such Dissenting Stockholder under Section 262
of the DGCL to payment for his shares shall cease.
(ii) If any Dissenting Stockholder shall effectively withdraw
or lose (through failure to perfect or otherwise) such Dissenting Stockholder's
right to payment for any of such Dissenting Stockholder's shares under Section
262 of the DGCL, such Dissenting Stockholder's shares shall automatically be
converted into the right to receive shares of Surviving Corporation Common Stock
in accordance with Section 1.5(a)(i) hereto.
(iii) Each Dissenting Stockholder who becomes entitled,
pursuant to the provisions of Section 262 of the DGCL, to payment of the fair
value of any such Dissenting Stockholder's shares shall receive payment therefor
from the Surviving Corporation pursuant to Section 262 of the DGCL.
1.6 Exchange and Conversion of Shares of Mobilepro Common Stock. The
manner of exchanging and converting shares of Mobilepro Common Stock into shares
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of Surviving Corporation Common Stock in accordance with Section 1.5 above,
shall be as follows:
(a) From and after the Effective Time, InterWest Transfer Co., Inc.
(the "Exchange Agent") shall act as exchange agent in effecting the exchange of
certificates representing shares of Mobilepro Common Stock pursuant to Section
1.5(a) hereof. As soon as practicable after the Effective Time, and after
surrender to the Exchange Agent by each Participating Stockholder of
certificates which prior to the Effective Time represented shares of Mobilepro
Common Stock, the Surviving Corporation shall cause to be distributed to such
Participating Stockholder in whose name such common stock certificates shall
have been registered, or in accordance with the written instructions transmitted
to the Exchange Agent by the Participating Stockholder, certificates
representing shares of Surviving Corporation Common Stock, all in accordance
with the provisions of Section 1.5(a) hereof. Upon the surrender by
Participating Stockholders of each certificate representing shares of Mobilepro
Common Stock, and the issuance and delivery by the Exchange Agent of
certificates representing shares of Surviving Corporation Common Stock, the
certificates which prior to the Effective Time represented outstanding shares of
Mobilepro Common Stock shall forthwith be canceled. Until so surrendered and
exchanged, each such certificate representing shares of Mobilepro Common Stock
shall be deemed for all purposes to evidence only a right to receive shares of
Surviving Corporation Common Stock, and the holders of such certificates shall
no longer be deemed, for any purpose, to be stockholders in Mobilepro.
(b) Immediately prior to the Effective Time, the Surviving
Corporation shall provide the Exchange Agent with certificates representing the
number of shares of Surviving Corporation Common Stock as the Surviving
Corporation may be required to issue in accordance with Section 1.5(a) hereof.
ARTICLE II
CLOSING
2.1 Closing Date. The closing of the Merger (the "Closing") and the
other transactions contemplated by this Agreement (the "Related Transactions")
shall take place at the offices of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ 10:00 a.m., New York Time, on June 4, 2001, or such other date,
time and place as the parties hereto may agree upon (the "Closing Date").
2.2 Execution of Formal Merger Documents. On the Closing Date,
Mobilepro and CraftClick shall execute the Certificate of Merger as provided by
the DGCL. The Certificate of Merger shall be transmitted by the parties to the
appropriate office for filing and/or recording on the Closing Date, in order
that the Merger contemplated by this Agreement shall become effective at 5:00
p.m., New York Time, on the Closing Date.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF MOBILEPRO
In order to induce CraftClick to enter into this Agreement and to
consummate the transactions, including the Merger, contemplated hereby,
Mobilepro represents and warrants to CraftClick the following representations
and warranties
3.1 Due Incorporation. Mobilepro is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware,
with all requisite power and authority to own, lease and operate its properties
and to carry on its business as they are now being owned, leased, operated and
conducted. Mobilepro is qualified or licensed to do business and is in good
standing as a foreign corporation in each jurisdiction where the nature of the
properties owned, leased or operated by it and the business transacted by it
requires such qualification or licensing, except where the failure to be so
qualified or licensed would not have a Mobilepro Material Adverse Effect (as
defined in Section 3.6 hereof). Mobilepro has no direct or indirect subsidiaries
or affiliates, either wholly or partially owned, and Mobilepro does not hold any
economic, voting or management interest in any corporation, proprietorship,
firm, partnership, limited partnership, trust, association, individual or other
entity (a "Person") or own any security issued by any Person. True, correct and
complete copies of the current Certificate of Incorporation and By-laws, as
amended, and minutes of meetings (or written consents in lieu of meetings) of
the Boards of Directors (and all committees thereof) and stockholders of
Mobilepro since inception have been, or prior to the Closing Date will have
been, delivered to CraftClick.
3.2 Due Authorization. Mobilepro has full power and authority to enter
into this Agreement and the Certificate of Merger and to consummate the
transactions contemplated hereby and thereby. The execution, delivery and
performance by Mobilepro of this Agreement and has been, or, in the case of the
Certificate of Merger, prior to the Closing Date will be, duly and validly
approved and authorized by the Board of Directors of Mobilepro, and, subject to
obtaining the necessary approval of the Merger by the stockholders of Mobilepro,
no other actions or proceedings on the part of Mobilepro are necessary to
authorize this Agreement, the Certificate of Merger and the transactions
contemplated hereby and thereby. Mobilepro has duly and validly executed and
delivered this Agreement and will duly and validly execute and deliver the
Certificate of Merger. Subject to obtaining the necessary approval of the
stockholders of Mobilepro and the consents set forth on Schedule 3.3, this
Agreement constitutes the legal, valid and binding obligation of Mobilepro,
enforceable in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, fraudulent transfer, moratorium,
reorganization or other laws from time to time in effect which affect creditors'
rights generally and by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
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3.3 Consents and Approvals; Non-Contravention.
(a) Except as set forth on Schedule 3.3, approval of the
stockholders of Mobilepro, and for the filing of the Certificate of Merger with
the appropriate authorities pursuant to the DGCL, no permit, consent,
authorization or approval of, or filing or registration with, any Governmental
Authority or any other Person not a party to this Agreement is necessary in
connection with the execution, delivery and performance by Mobilepro of this
Agreement and the Certificate of Merger, or the consummation of the transactions
contemplated hereby or thereby, or for the lawful continued operation by the
Surviving Corporation following the Effective Time of the business currently
conducted by Mobilepro. "Governmental Authority" shall mean the government of
the United States or any foreign country or any state or political subdivision
thereof or any entity, body or authority exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government.
(b) Except as set forth on Schedule 3.3 and except as would not
result in a Mobilepro Material Adverse Effect, the execution, delivery and
performance by Mobilepro of this Agreement and the Certificate of Merger do not
and will not (A) violate any Law ("Law" meaning any law, statute, regulation,
ordinance, rule, order, decree, judgment, consent decree, settlement agreement
or governmental requirement enacted, promulgated, entered into, agreed or
imposed by any Governmental Authority); (B) violate or conflict with, result in
a breach or termination of, constitute a default (or a circumstance which, with
or without notice or lapse of time or both, would constitute a default) or give
any third party any additional right (including a termination right) under,
permit cancellation of, or result in the creation of any mortgage, lien (except
for any lien for taxes not yet due and payable), charge, restriction, pledge,
security interest, option, lease or sublease, claim, right of any third party,
easement, encroachment or encumbrance (collectively, a "Lien") upon any of the
assets or properties of Mobilepro under any contract to which Mobilepro is a
party or by which Mobilepro or any of its assets or properties is bound; (C)
permit the acceleration of the maturity of any indebtedness of Mobilepro or
indebtedness secured by Mobilepro' assets or properties; or (D) violate or
conflict with any provision of the Certificate of Incorporation or By-laws of
Mobilepro.
(c) Mobilepro has obtained and is in compliance with all
governmental permits, licenses, registrations, certificates of occupancy,
approvals and other authorizations (collectively, the "Permits") that are
required for the complete operation of the business of Mobilepro as currently
operated, except for any Permits the absence of which would not result in a
Mobilepro Material Adverse Effect. All of the Permits are currently valid and in
full force and, to Mobilepro' knowledge, no revocation, cancellation or
withdrawal thereof has been threatened. Mobilepro has filed such timely and
complete renewal applications as may be required with respect to the Permits.
Except as set forth on Schedule 3.3, to Mobilepro' knowledge, the Permits, in
their current state, will allow Mobilepro to continue to operate its business
following the Effective Time in substantially the same manner as Mobilepro'
business is currently operated and as currently contemplated.
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3.4 Capitalization
(a) The authorized capital stock of Mobilepro consists of
14,000,000 shares of Mobilepro Common Stock and 10,000,000 shares of preferred
stock. On the date hereof, there are issued and outstanding 14,000,000 shares of
Mobilepro Common Stock. All of the issued and outstanding shares of Mobilepro
Common Stock are validly issued, fully paid and nonassessable and the issuance
thereof was not subject to preemptive rights.
(b) Except as set forth on Schedule 3.4, there are no shares of
Mobilepro Common Stock or other equity securities (whether or not such
securities have voting rights) of Mobilepro issued or outstanding or any
subscriptions, options, warrants, call rights, convertible securities or other
agreements or commitments of any character obligating Mobilepro to issue,
transfer or sell any shares of capital stock or other securities (whether or not
such securities have voting rights) of Mobilepro. Except as set forth on
Schedule 3.4, there are no outstanding contractual obligations of Mobilepro
which relate to the purchase, sale, issuance, repurchase, redemption,
acquisition, transfer, disposition, holding or voting of any shares of capital
stock or other securities of Mobilepro.
3.5 Financial Statements; Undisclosed Liabilities; Other Documents. For
purposes of this Agreement, "Mobilepro Financial Statements" shall mean the
unaudited financial statements of Mobilepro as of December 31, 1999 and December
31, 2000, (including all notes thereto) which have been previously delivered to
CraftClick, consisting of the balance sheets at such dates and the related
statements of income and cash flow for the twelve month period ended December
31, 1999 and the twelve-month period ended December 31, 2000. The Mobilepro
Financial Statements have been prepared in accordance with generally accepted
accounting principles ("GAAP") consistently applied and present fairly the
financial position, assets and liabilities of Mobilepro as at the dates thereof
and the revenues, expenses, results of operations and cash flows of Mobilepro
for the periods covered then ended (subject, in the case of any unaudited
Mobilepro Financial Statements, to normal year-end audit adjustments consistent
with past practice and the absence of notes). The Mobilepro Financial Statements
are in accordance with the books and records of Mobilepro, do not reflect any
transactions which are not bona fide transactions and do not contain any untrue
statement of a material fact or omit to state any material fact necessary to
make the statements contained therein, in light of the circumstances in which
they were made, not misleading. The Mobilepro Financial Statements make full and
adequate disclosure of, and provision for, all obligations and liabilities of
Mobilepro as of the date thereof. The Mobilepro Financial Statements may be
audited in a timely fashion to meet the reporting obligations of CraftClick on a
timely basis.
3.6 No Adverse Effects or Changes. Except as listed on Schedule 3.6, or
as disclosed in or reflected in the Mobilepro Financial Statements, or as
contemplated by this Agreement, since December 31, 2000, Mobilepro has not (i)
taken any of the actions set forth in Section 5.3, (ii) suffered any Mobilepro
Material Adverse Effect, (iii) suffered any damage, destruction or Loss to any
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of its assets or properties (whether or not covered by insurance), or (iv)
increased the compensation of any executive officer of Mobilepro. "Loss" shall
mean liabilities, losses, costs, claims, damages (including consequential
damages), penalties and expenses (including attorneys' fees and costs of
investigation and litigation). For purposes of this Agreement, "Mobilepro
Material Adverse Effect" shall mean any effect on the then business, operations,
assets, liabilities, results of operations, cash flows, condition (financial or
otherwise) or business prospects of Mobilepro which is materially adverse to
Mobilepro.
3.7 Title to Properties. Except as disclosed on Schedule 3.7, Mobilepro
(i) has good and marketable title to, and is the lawful owner of, all of the
material tangible and intangible assets, properties, including real property,
and rights reflected as being owned by Mobilepro in the Mobilepro Financial
Statements (other than assets disposed of in the ordinary course of business
since the date of the Mobilepro Financial Statements), and (ii) at the Effective
Time, will have good and marketable title to, and will be the lawful owner of,
all of such tangible and intangible assets, properties, including real property,
and rights, in any case free and clear of any Lien, except for (x) any Lien for
current taxes not yet due and payable, and (y) minor Liens that have arisen in
the ordinary course of business and that do not (in any case or in the
aggregate) materially detract from the value of the assets subject thereto or
materially impair the operations of Mobilepro.
3.8 Liabilities. Except to the extent reflected or reserved against on
the balance sheets of Mobilepro constituting a part of the Mobilepro Financial
Statements, Mobilepro has no debts, liabilities or obligations of any nature
other than as set forth on Schedule 3.8.
3.9 Intellectual Property.
(a) Schedule 3.9 is a true and complete list of all of the United
States and foreign material patents, patents pending, patent applications,
trademarks, trade names, service marks and rights (collectively, the
"Intellectual Property") used by Mobilepro in the conduct of its business.
Except as disclosed on Schedule 3.9:
(i) all of the Intellectual Property is either owned or
licensed by Mobilepro;
(ii) none of the Intellectual Property is the subject of any
pending or, to the knowledge of Mobilepro, threatened, litigation or claim of
infringement;
(iii) no license to which Mobilepro is a party is the subject
of a breach or default by Mobilepro or, to Mobilepro' knowledge, any other party
thereto, or the subject of any notice of termination given or threatened in
writing;
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(iv) the products and services provided by Mobilepro do not, to
Mobilepro's knowledge, infringe any trademark, service ▇▇▇▇, trade name,
copyright, trade secret, patent or confidential or proprietary rights of
another, and Mobilepro has not received any notice contesting its right to use
any Intellectual Property; and
(v) Mobilepro possesses adequate rights as the owner or the
licensee in and to all Intellectual Property necessary to conduct its business
as presently conducted.
(b) Mobilepro has no knowledge which, directly or indirectly,
indicates an infirmity in any claim of the material United States and foreign
patents, and patent applications (collectively "Mobilepro Patents") or any basis
for invalidity or unenforceability of any claim of the Mobilepro Patents.
(c) Mobilepro has no knowledge which, directly or indirectly,
indicates that the licensor in each license agreement under which Mobilepro has
been granted rights does not own the entire unencumbered right, title and
interest in and to the Intellectual Property which is the subject of the
license.
3.10 Contracts. "Contract" shall mean any material contract, lease,
commitment or understanding, sales order, purchase order, agreement, indenture,
mortgage, note, bond, instrument or license, whether written or verbal, which is
intended or purports to be a binding and enforceable agreement. Schedule 3.10
lists all the material Contracts and arrangements of the following types to
which Mobilepro is a party or by which it is bound, or to which any of its
assets or properties is subject, including but not limited to:
(a) any collective bargaining agreement;
(b) any Contract or arrangement of any kind with any employee,
consultant, medical advisor, officer or director of Mobilepro;
(c) any Contract or arrangement with a sales representative,
manufacturer's representative, distributor, dealer, broker, sales agency,
advertising agency or other Person engaged in sales, distributing or promotional
activities, or any Contract to act as one of the foregoing, on behalf of any
Person;
(d) any Contract or arrangement of any nature which involves the
payment or receipt of cash or other property, an unperformed commitment, or
goods or services, having a value in excess of $25,000;
(e) any Contract or arrangement pursuant to which Mobilepro has
made or will make loans or advances, or has or will have incurred debts or
become a guarantor or surety or pledged its credit on or otherwise become
responsible with respect to any undertaking of another (except for the
negotiation or collection of negotiable instruments in transactions in the
ordinary course of business);
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(f) any indenture, credit agreement, loan agreement, note,
mortgage, security agreement, lease of real property or personal property or
agreement for financing;
(g) any Contract or arrangement involving a partnership, joint
venture or other cooperative undertaking;
(h) any Contract or arrangement involving any restrictions with
respect to the geographical area of operations or scope or type of business of
Mobilepro;
(i) any power of attorney or agency agreement or arrangement with
any Person pursuant to which such Person is granted the authority to act for or
on behalf of Mobilepro, or Mobilepro is granted the authority to act for or on
behalf of any Person;
(j) any Contract relating to any corporate acquisition or
disposition by Mobilepro, or any acquisition or disposition of any subsidiary,
division, line of business, or real property, during the five years prior to the
date of this Agreement; and
(k) any Contract not specified above that is material to Mobilepro.
Mobilepro has made available to CraftClick true and complete copies of
each document listed on Schedule 3.10, and a written description of each oral
arrangement so listed. Except as disclosed on Schedule 3.10, the cancellation of
any such Contracts at any time by the other party, would not have a Mobilepro
Material Adverse Effect.
3.11 Insurance. Schedule 3.11 contains an accurate and complete list of
all policies of fire, liability, workers' compensation, product liability,
professional malpractice, title and other forms of insurance owned or held by
Mobilepro, and Mobilepro has heretofore delivered to CraftClick a true and
complete copy of all such policies. All such policies are in full force and
effect, all premiums with respect thereto covering all periods up to and
including the Closing Date have been, or prior to the Closing Date, will be,
paid, and no notice of cancellation or termination has been received with
respect to any such policy. Except as set forth in Schedule 3.11, Mobilepro has
not been refused any insurance with respect to its assets or operations, and its
coverage has not been limited by any insurance carrier to which it has applied
for any such insurance or with which it has carried insurance, during the last
two years. Such insurance policies provide types and amounts of insurance
customarily obtained by businesses similar to the business of Mobilepro.
3.12 Employee Benefit Plans. Neither Mobilepro nor any other member of
the Controlled Group (as hereinafter defined) (i) has at any time maintained,
contributed to or participated in, (ii) has or had at any time any obligation to
maintain, contribute to or participate in, or (iii) has any liability or
contingent liability, direct or indirect, with respect to: any employee benefit
plan (within the meaning of Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA")), oral or written retirement or
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deferred compensation plan, incentive compensation plan, unemployment
compensation plan, vacation pay plan, severance plan, bonus plan, stock
compensation plan or any other type or form of employee-related (or independent
contractor-related) arrangement, program, policy, plan or agreement. For
purposes of this Agreement, the term "Controlled Group" shall refer to Mobilepro
and each other corporation or other entity under common control with Mobilepro
(pursuant to the provisions of Sections 414(b), (c), (m) or (o) of the Code) at
any time during the 60-month period ending on the Closing Date.
3.13 Employees; Labor Matters.
(a) Mobilepro has conducted and currently is conducting its
business in material compliance with all Laws relating to employment and
employment practices, terms and conditions of employment, wages and hours and
nondiscrimination in employment. In the opinion of management, the relationship
of Mobilepro with its employees is good and there is, and during the past two
years there has been, no labor strike, dispute, slow-down, work stoppage or
other labor difficulty pending or, to Mobilepro' knowledge, threatened against
or involving Mobilepro. None of the employees of Mobilepro is covered by any
collective bargaining agreement, no collective bargaining agreement is currently
being negotiated and no attempt is currently being made, or during the past two
years has been made, to organize any employees of Mobilepro to form or enter a
labor union or similar organization.
(b) Except as disclosed on balance sheets of Mobilepro forming a
part of the Financial Statements or on Schedule 3.13, Mobilepro has no material
liability for any vacation time, vacation pay, retirement benefits, disability
or other insurance benefits or severance pay attributable to services rendered
prior to the date of each such balance sheet.
3.14 Tax Matters.
(a) "Taxes", as used in this Agreement, means any Federal, state,
county, local or foreign taxes, charges, fees, levies, or other assessments,
including all net income, gross income, sales and use, ad valorem, transfer,
gains, profits, excise, franchise, real and personal property, gross receipt,
capital stock, production, business and occupation, disability, employment,
payroll, license, estimated, stamp, custom duties, severance or withholding
taxes or charges imposed by any Governmental Authority, and includes any
interest and penalties (civil or criminal) on or additions to any such taxes and
any expenses incurred in connection with the determination, settlement or
litigation of any tax liability. "Tax Return", as used in this Agreement, means
a report, return or other information required to be supplied to a Governmental
Authority with respect to Taxes including, where permitted or required, combined
or consolidated returns for any group of entities.
(b) Mobilepro has duly filed all Tax Returns required to be filed
by it under applicable law or filed appropriate extensions which have not yet
expired and will file all Tax Returns required to be filed by it at or prior to
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the Effective Time under applicable law. All Tax Returns were in all material
respects (and, as to Tax Returns not filed as of the execution of this
Agreement, will be) true, complete and correct and filed on a timely basis, or
extended as permitted by law.
(c) Mobilepro has, within the time and in the manner prescribed by
law, paid (and until the Effective Time will pay within the time and in the
manner prescribed by law) all Taxes that are currently due and payable except
for those contested in good faith and for which adequate reserves have been
taken.
(d) There are no material liens for Taxes upon the assets of
Mobilepro except liens for Taxes not yet due.
(e) Mobilepro has complied (and until the Effective Time will
comply) in all material respects with the provisions of the Code relating to the
payment and withholding of Taxes and has, within the time and in the manner
prescribed by Law, withheld from employee wages and paid over to the proper
Governmental Authorities all amounts required.
(f) Except as disclosed on Schedule 3.14, no audits or other
administrative proceedings or court proceedings are presently pending with
regard to any Taxes or Tax Returns of Mobilepro.
(g) Except as disclosed on Schedule 3.14, Mobilepro has not
received any Tax Rulings (as defined below) or entered into any Closing
Agreements (as defined below) with any taxing authority that would have a
continuing adverse effect after the Effective Time. "Tax Ruling", as used in
this Agreement, shall mean a written ruling of a taxing authority relating to
Taxes. "Closing Agreement", as used in this Agreement, shall mean a written and
legally binding agreement with a taxing authority relating to Taxes.
(h) Schedule 3.14 contains a list of states, territories and
jurisdictions (whether foreign or domestic) to which any Taxes are properly
payable by Mobilepro.
3.15 Environmental Regulations. Mobilepro is in compliance in all
material respects with all applicable federal, state and local laws and
regulations governing the environment, public health and safety and employee
health and safety (including all provisions of the Occupational Safety and
Health Act ("OSHA")) and no charge, complaint, action, suit, proceeding,
hearing, investigation, claim, demand or notice has been filed or commenced
against Mobilepro and, to the knowledge of Mobilepro, no such charge, complaint,
action, suit, proceeding, hearing, investigation, claim, demand or notice is
pending or threatened in writing.
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3.16 Litigation.
(a) Except as disclosed in Schedule 3.16, there are no actions,
suits, arbitrations, regulatory proceedings or other litigation, proceedings or
governmental investigations pending or, to Mobilepro' knowledge, threatened
against Mobilepro or any of Mobilepro' officers or directors in their capacity
as such, or any of their respective properties or businesses, and Mobilepro is
not aware of any facts or circumstances which may reasonably be likely to give
rise to any of the foregoing. Except as set forth on Schedule 3.16, all of the
proceedings pending against Mobilepro are covered and being defended by insurers
(subject to such deductibles as are set forth in such Schedule). Except as
disclosed on Schedule 3.16, Mobilepro is not subject to any order, judgment,
decree, injunction, stipulation or consent order of or with any court or other
Governmental Authority. Mobilepro has not entered into any agreement to settle
or compromise any proceeding pending or threatened in writing against it which
has involved any obligation for which Mobilepro has any continuing obligation.
(b) There are no claims, actions, suits, proceedings, or
investigations pending or, to Mobilepro' knowledge, threatened in writing by or
against Mobilepro with respect to this Agreement or the Certificate of Merger,
or in connection with the transactions contemplated hereby or thereby, and
Mobilepro has no reason to believe there is a valid basis for any such claim,
action, suit, proceeding or investigation.
3.17 No Conflict of Interest. Except as disclosed on Schedule 3.17, to
Mobilepro' knowledge, no Person has or claims to have any direct or indirect
interest in any tangible or intangible property used in the business of
Mobilepro, except as a holder of shares of Mobilepro Common Stock.
3.18 Bank Accounts. Schedule 3.18 sets forth the names and locations of
each bank or other financial institution at which Mobilepro has either an
account (giving the account numbers) or safe deposit box and the names of all
Persons authorized to draw thereon or have access thereto, and the names of all
Persons, if any, now holding powers of attorney or comparable delegation of
authority from Mobilepro and a summary statement thereof.
3.19 Compliance with Laws. Except as set forth on Schedule 3.19,
Mobilepro is not in default under any order of any court, Governmental Authority
or other agency or arbitration board or tribunal to which Mobilepro is or was
subject within the past two years or in violation of any laws, ordinances,
governmental rules or regulations (including, but not limited to, those relating
to environmental, safety, building, product safety or health standards or labor
or employment matters) to which Mobilepro is or was subject within the past two
years, except to the extent failure to comply would not have a Mobilepro
Material Adverse Effect. The business of Mobilepro is being, and at the Closing
will be, conducted in compliance with all applicable laws, ordinances, rules and
regulations applicable to it (including, but not limited to, those relating to
13
environmental, safety, building, product safety or health standards or labor or
employment matters, except to the extent failure to comply would not have a
Mobilepro Material Adverse Effect).
3.20 Broker's/Finder's Fees. Mobilepro has not used any broker or
finder in connection with the transactions contemplated by this Agreement, and
CraftClick has not and shall not have any liability or otherwise suffer or incur
any loss as a result of or in connection with any brokerage or finder's fee or
other commission payable as a result of any actions taken by Mobilepro with
respect to any broker or finder in connection with the Merger contemplated by
this Agreement.
3.21 Board Recommendation. The Board of Directors of Mobilepro, at a
special meeting of such Board held on May 31, 2001, approved this Agreement, the
Merger and the other transactions contemplated hereby on the terms and
conditions set forth herein and has determined to recommend that the
stockholders of Mobilepro approve this Agreement and the Merger.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF CRAFTCLICK
In order to induce Mobilepro to enter into this Agreement and to
consummate the transactions, including the Merger, contemplated hereby,
CraftClick represents and warrants to Mobilepro representations and warranties.
4.1 Due Incorporation. CraftClick is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware
with all requisite power and authority to own, lease and operate its properties
and to carry on its business as it is now being owned, leased, operated and
conducted. CraftClick, in light of its current operations and properties, is not
required to qualify as a foreign corporation in any jurisdiction and is not
qualified to do business in any jurisdiction other than its jurisdiction of
incorporation. True, correct and complete copies of the current Certificate of
Incorporation and By-laws, have been, or prior to the Closing Date will have
been, delivered to Mobilepro.
4.2 Due Authorization. CraftClick has full power and authority to enter
into this Agreement and the Certificate of Merger and to consummate the
transactions contemplated hereby and thereby. The execution, delivery and
performance by CraftClick of this Agreement have been, or, in the case of the
Certificate of Merger, prior to the Closing Date will be, duly and validly
approved and authorized by the Board of Directors of CraftClick, and, no other
actions or proceedings on the part of CraftClick are necessary to authorize this
Agreement and Certificate of Merger and the transactions contemplated hereby and
thereby. CraftClick has duly and validly executed and delivered this Agreement
and will duly and validly execute and deliver the Merger and Certificate of
Merger. This Agreement constitutes the legal, valid and binding obligation of
CraftClick, enforceable in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency, fraudulent
14
transfer, moratorium, reorganization or other laws from time to time in effect
which affect creditors' rights generally and by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
4.3 Consents and Approvals; Non-Contravention.
(a) Except as set forth on Schedule 4.3 and for filing the
Certificate of Merger with the appropriate authorities pursuant to the DGCL, no
permit, consent, authorization or approval of, or filing or registration with,
any Governmental Authority or any other Person not a party to this Agreement is
necessary in connection with the execution, delivery and performance by
CraftClick of this Agreement, or the consummation of the transactions
contemplated hereby or thereby.
(b) The execution, delivery and performance by CraftClick of this
Agreement and the Certificate of Merger do not and will not (A) violate any Law,
(B) violate or conflict with, result in a breach or termination of, constitute a
default (or a circumstance which, with or without notice or lapse of time or
both, would constitute a default) or give any third party any additional right
(including a termination right) under, permit cancellation of, or result in the
creation of any Lien (except for any Lien for taxes not yet due and payable)
upon any of the assets or properties of CraftClick under any contract to which
CraftClick is a party or by which CraftClick or any of its assets or properties
is bound; (C) permit the acceleration of the maturity of any indebtedness of
CraftClick or indebtedness secured by CraftClick's assets or properties; or (D)
violate or conflict with any provision of the Certificate of Incorporation or
By-laws of CraftClick.
4.4 Capitalization.
(a) The authorized capital stock of CraftClick consists of
50,000,000 shares of CraftClick Common Stock and 5,000,000 shares of Preferred
Stock and 35,425 shares of Series A Preferred Stock. On the date hereof, there
are issued and outstanding 3,557,196 shares of CraftClick Common Stock, 35,378
shares of Series A Preferred Stock and no shares of Preferred Stock. All of the
issued and outstanding shares of CraftClick Common Stock are validly issued,
fully paid and nonassessable and the issuance thereof was not subject to
preemptive rights.
(b) Except as set forth on Schedule 4.4 or otherwise provided in
this Agreement, there are no shares of CraftClick Common Stock or other equity
securities (whether or not such securities have voting rights) of CraftClick
issued or outstanding or any subscriptions, options, warrants, call rights,
convertible securities or other agreements or commitments of any character
obligating CraftClick to issue, transfer or sell any shares of capital stock or
other securities (whether or not such securities have voting rights) of
CraftClick. Except as set forth on Schedule 4.4 or otherwise provided in this
Agreement, there are no outstanding contractual obligations of CraftClick which
relate to the purchase, sale, issuance, repurchase, redemption, acquisition,
transfer, disposition, holding or voting of any shares of capital stock or other
securities of CraftClick.
15
4.5 Broker's/Finder's Fees. CraftClick has not used any broker or
finder in connection with the transactions contemplated by this Agreement, and
Mobilepro has not and shall not have any liability or otherwise suffer or incur
any loss as a result of or in connection with any brokerage or finder's or other
commission payable as a result of any actions taken by CraftClick with respect
to any broker or finder in connection with the Merger contemplated by this
Agreement.
4.6 SEC Filings. CraftClick has heretofore delivered to Mobilepro its
most recent Form 10-KSB for the fiscal year ended March 31, 2000 and all
subsequent Form 8-K's, Form 10-QSB's, proxy statements and other documents since
March 31, 2000 together with all exhibits thereto, as filed with the SEC (the
"SEC Filings"). Nothing has come to the attention of CraftClick that would
indicate that the SEC Filings were not timely filed with the SEC and as of their
respective filing dates contained any misstatement of a material fact or an
omission of a material fact required to be stated therein or necessary to make
the statements therein not misleading.
4.7 Material Events Subsequent to SEC Reports. Schedule 4.7 sets forth
a description of material events which are not reflected in the SEC Filings, as
of the date of this Agreement.
ARTICLE V
COVENANTS
5.1 Implementing Agreement. Subject to the terms and conditions hereof,
each party hereto shall use its commercially reasonable efforts to take all
action required of it to fulfill its obligations under the terms of this
Agreement and the Certificate of Merger and to facilitate the consummation of
the transactions contemplated hereby and thereby.
5.2 Access to Information and Facilities
(a) From and after the date of this Agreement, Mobilepro shall
allow CraftClick and its representatives access during normal business hours to
all of the facilities, properties, books, Contracts, commitments and records of
Mobilepro and shall make the officers and employees of Mobilepro available to
CraftClick and its representatives as CraftClick or its representatives shall
from time to time reasonably request. CraftClick and its representatives will be
furnished with any and all information concerning Mobilepro, which CraftClick or
its representatives reasonably request.
(b) From and after the date of this Agreement, CraftClick shall
give Mobilepro and its representatives access during normal business hours to
all of the facilities, properties, books, Contracts, commitments and records of
CraftClick (and its subsidiaries and affiliates) and shall make the officers and
employees of CraftClick (and its subsidiaries and affiliates) available to
Mobilepro and its representatives as Mobilepro or its representatives shall from
16
time to time reasonably request. Mobilepro and its representatives will be
furnished with any and all information concerning CraftClick, which Mobilepro or
its representatives reasonably request.
5.3 Preservation of Business. Subject to the terms of this Agreement,
from the date of this Agreement until the Closing Date, each of Mobilepro and
CraftClick (which for the purposes of their covenant includes its subsidiaries
and affiliates), as the case may be, shall operate only in the ordinary and
usual course of business consistent with past practice, and shall use reasonable
commercial efforts to (a) preserve intact the present business organization of
Mobilepro and CraftClick, as the case may be, (b) preserve the good will and
advantageous relationships of Mobilepro and CraftClick, as the case may be, with
employees and other Persons material to the operation of their respective
businesses, and (c) not permit any action or omission within its control which
would cause any of the representations or warranties of Mobilepro and
CraftClick, as the case may be, contained herein to become inaccurate in any
material respect or any of the covenants of Mobilepro and CraftClick, as the
case may be, to be breached in any material respect. Without limiting the
generality of the foregoing, except as set forth on Schedule 3.6 with respect to
Mobilepro, prior to the Closing, neither Mobilepro nor CraftClick will, without
having obtained the prior written consent of the other:
(a) incur any obligation or enter into any Contract which either
(x) requires a payment by any party in excess of, or a series of payments which
in the aggregate exceed, $40,000 or provides for the delivery of goods or
performance of services, or any combination thereof, having a value in excess of
$10,000, or (y) has a term of, or requires the performance of any obligations by
Mobilepro or CraftClick, as the case may be, over a period in excess of, six
months;
(b) take any action, or enter into or authorize any Contract or
transaction other than in the ordinary course of business and consistent with
past practice;
(c) as applicable, sell, transfer, convey, assign or otherwise
dispose of any of its assets or properties, except in the ordinary course of
business;
(d) waive, release or cancel any claims against third parties or
debts owing to it, or any rights which have any value in an amount greater than
$25,000 other than actions taken consistent with normal past business practices;
(e) make any changes in its accounting systems, policies,
principles or practices;
(f) authorize for issuance, issue, sell, deliver or agree or commit
to issue, sell or deliver (whether through the issuance or granting of options,
warrants, convertible or exchangeable securities, commitments, subscriptions,
rights to purchase or otherwise) any shares of its capital stock or any other
securities, or amend any of the terms of any such securities;
17
(g) split, combine, or reclassify any shares of its capital stock,
declare, set aside or pay any dividend or other distribution (whether in cash,
stock or property or any combination thereof) in respect of its capital stock,
or redeem or otherwise acquire any of its securities;
(h) make any borrowings, incur any debt (other than trade payables
in the ordinary course of business or equipment leases entered into in the
ordinary course of business), or assume, guarantee, endorse or otherwise become
liable (whether directly, contingently or otherwise) for the obligations of any
other Person other than a subsidiary, or make any unscheduled payment or
repayment of principal in respect of any Short Term Debt or Long Term Debt.
"Long Term Debt" shall mean the aggregate original principal amount (less any
cash repayments of principal previously made) of, and any and all accrued
interest on, all indebtedness with respect to borrowed money and all other
obligations (or series of related obligations) to pay money with respect to
extensions of credit, including capitalized lease and deferred compensation
obligations, except indebtedness or obligations for which all installments are
payable within six months from the date of the advancement of funds or extension
of credit. The term "Short Term Debt" shall include any amount listed or to be
listed as a current liability on financial statements which reflects the current
portion or final installments of obligations originally reflected as noncurrent
liabilities;
(i) make any new loans, advances or capital contributions to, or
new investments in, any other Person other than to a subsidiary consistent with
normal business practices;
(j) except as contemplated by this Agreement, enter into, adopt,
amend or terminate any bonus, profit sharing, compensation, termination, stock
option, stock appreciation right, restricted stock, performance unit, pension,
retirement, deferred compensation, employment, severance or other employee
benefit agreements, trusts, plans, funds or other arrangements for the benefit
or welfare of any director, officer or employee, or increase in any manner the
compensation or fringe benefits of any director, officer or employee or pay any
benefit not required by any existing plan and arrangement or enter into any
contract, agreement, commitment or arrangement to do any of the foregoing other
than actions taken in the ordinary course of business consistent with prior
business practices;
(k) except for capital expenditures contemplated by (xii) below,
acquire, lease or encumber any assets outside the ordinary course of business or
any assets which are material to its operations;
(l) authorize or make any capital expenditures which individually
or in the aggregate are in excess of $10,000 other than planned expenditures for
the development, establishment or expansion of clinics and other operations
consistent with past business practices;
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(m) make any Tax election or settle or compromise any federal,
state, local or foreign income Tax liability, or waive or extend the statute of
limitations in respect of any such Taxes;
(n) pay or agree to pay any amount in settlement or compromise of
any suits or claims of liability against it or its directors, officers,
employees or agents in an amount more than $25,000; or
(o) terminate, modify, amend or otherwise alter or change any of
the terms or provisions of any Contract other than in accordance with ordinary
business practices, or pay any amount not required by Law or by any Contract in
an amount more than $25,000.
5.4 Mobilepro Stockholders' Action
(a) Mobilepro, promptly following the execution of this Agreement,
shall call and hold a special meeting of its stockholders or take action to
obtain the written consent of its stockholders (the "Mobilepro Stockholders'
Meeting") as promptly as practicable, for the purpose of voting on and approving
of the Merger.
5.5 CraftClick Disclosure.
(a) As soon as practicable after the execution of this Agreement,
CraftClick shall file a Current Report on Form 8-K disclosing this Agreement and
the terms of the Merger.
(b) The information specifically designated as being supplied by
Mobilepro for inclusion in the Current Report shall not, at the time of filing,
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the statements
therein, not misleading.
(c) If, at any time prior to the Effective Date, any event or
circumstance relating to Mobilepro or its officers or directors should be
discovered by Mobilepro which should be set forth in an amendment to the Current
Report, Mobilepro shall promptly inform CraftClick of the same, and CraftClick
shall promptly file such amendment to the Current Report.
5.6 Consents and Approvals.
(a) Mobilepro shall use its best efforts to obtain all consents,
approvals, certificates and other documents required in connection with the
performance by it of this Agreement and the consummation of the transactions
contemplated hereby, including all such consents and approvals by each party to
any of the Contracts referred to on Schedule 3.3. Mobilepro shall make all
filings, applications, statements and reports to all Governmental Authorities
and other Persons which are required to be made prior to the Closing Date by or
on behalf of Mobilepro pursuant to any applicable Law or Contract in connection
with this Agreement and the transactions contemplated hereby.
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(b) CraftClick shall use commercially reasonable efforts to obtain
all consents, approvals, certificates and other documents required in connection
with the performance by it of this Agreement and the consummation of the
transactions contemplated hereby, including, but not limited to all such
consents and approvals by each party to any of the Contracts referred to on
Schedule 4.3. CraftClick shall make all filings, applications, statements and
reports to all Governmental Authorities and other Persons which are required to
be made prior to the Closing Date by or on behalf of CraftClick pursuant to any
applicable Law or Contract in connection with this Agreement and the
transactions contemplated hereby.
5.7 No Other Negotiations.
(a) Until the earlier of the Closing or the termination of this
Agreement, neither CraftClick nor Mobilepro and their respective affiliates,
subsidiaries, agents or representatives will (a) solicit, encourage, directly or
indirectly, any inquiries, discussions or proposals for, (b) continue, propose
or enter into any negotiations or discussions looking toward, or (c) enter into
any agreement or understanding providing for any acquisition of any capital
stock of the respective corporation or any part of the assets or the businesses
of the respective corporation, other than as contemplated or authorized hereby.
In addition, neither CraftClick nor Mobilepro and their respective affiliates,
subsidiaries, agents or representatives will provide any information to any
Person (other than as contemplated by this Agreement) for the purpose of
evaluating or determining whether to make or pursue any such inquiries or
proposals with respect to any such acquisition of capital stock, assets or
business. Each of CraftClick on the one hand and Mobilepro on the other hand
will notify the other immediately of any such inquiries or proposals or requests
for information.
(b) Notwithstanding the foregoing subparagraph, (A) in the event
that there is an unsolicited proposal to enter into a merger, business
combination, purchase of substantially all the assets or similar transaction of
or with CraftClick, CraftClick at its discretion, may furnish to and communicate
with the party or parties public and non-public information requested by them
and such party may negotiate with these parties, if (i) the board of directors
of CraftClick determines in good faith, based upon the advice of its financial
advisors, that such business combination proposal would, if consummated, result
in a transaction that is more favorable to the corporation's stockholders from a
financial point of view, than the transaction contemplated by this Agreement,
and based on the advice of its outside counsel, that, as a result, such action
is necessary for the board of directors to act in a manner consistent with its
fiduciary duties under applicable law, and (ii) prior to furnishing such
information to or entering into negotiations with such third party, CraftClick,
(x) provides prompt notice to Mobilepro to the effect that it is furnishing
information to or entering into discussions or negotiations with such third
party and (y) receives from such third party an executed confidentiality
agreement, and (B) CraftClick may comply with Rule 14e-2 promulgated under the
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Exchange Act with regard to a tender or exchange offer. CraftClick shall notify
Mobilepro and in writing of any such inquiries, offers or proposals (including
the terms and conditions of any such proposal and the identity of the person
making it) within 24 hours of the receipt thereof, shall keep Mobilepro informed
of the status and details of any such inquiry, offer or proposal, and shall give
Mobilepro five days' advance notice of any agreement to be entered into with or
any information to be supplied to any person making such inquiry, offer or
proposal.
5.8 Schedules. Mobilepro on the one hand and CraftClick on the other
hand have made a good faith effort to provide information for which they are
responsible on each schedule to this Agreement and appropriate to the
representation and warranty of the related schedule; however, to the extent
information is provided on one schedule which should also have been presented on
another schedule, disclosure on the one schedule will be deemed disclosure on
the other schedules where appropriate.
5.9 Supplemental Information. From time to time prior to the Closing,
Mobilepro, on the one hand, and CraftClick, on the other hand, will promptly
disclose in writing to the other any matter hereafter arising which, if
existing, occurring or known at the date of this Agreement would have been
required to be disclosed to the other parties hereto or which would render
inaccurate any of the representations, warranties or statements set forth in
Articles III and IV, respectively, hereof.
5.10 Ancillary Agreements. Each of Mobilepro and CraftClick will
execute and deliver at the Closing each of the agreements to which it is a party
or take such action as is required to complete the actions specified in Section
8.3 of this Agreement.
ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS OF CRAFTCLICK
The obligations of CraftClick under this Agreement are subject to the
satisfaction or waiver by CraftClick of the following conditions precedent on or
before the Closing Date:
6.1 Representations and Warranties. Without supplementation after the
date of this Agreement, the representations and warranties of Mobilepro
contained in this Agreement shall be, with respect to those representations and
warranties qualified by any materiality standard, true and correct in all
respects, as of the Closing Date, and with respect to all other representations
and warranties, true and correct in all material respects, as of the Closing
Date, with the same force and effect as if made as of the Closing Date.
6.2 Compliance With Agreements and Covenants. Mobilepro shall have
performed and complied with all of its covenants, obligations and agreements
contained in this Agreement to be performed and complied with by it on or prior
to the Closing Date.
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6.3 Consents and Approvals. Mobilepro, shall have received written
evidence satisfactory to them that all consents and approvals required for the
consummation of the transactions contemplated hereby have been obtained, and all
required filings have been made, including (without limitation) those set forth
on Schedule 3.3 hereto.
6.4 Documents. CraftClick shall have received all of the agreements,
documents and items specified in Section 8.1 below and all deliveries pursuant
to Section 8.3 shall have been made.
6.5 No Material Adverse Change. At the Closing Date, there shall have
been no material adverse change in the assets, liabilities, financial condition,
business or prospects of Mobilepro since December 31, 2000 ("Mobilepro Material
Adverse Change"). Between the date of this Agreement and the Closing Date, there
shall not have occurred an event which would reasonably be expected to
constitute a Mobilepro Material Adverse Effect.
6.6 Actions or Proceedings. No action or proceeding by any Governmental
Authority or other Person shall have been instituted or threatened which (a) is
likely to have a Mobilepro Material Adverse Effect, or (b) could enjoin,
restrain or prohibit, or could result in substantial damages in respect of, any
provision of this Agreement or the consummation of the transactions contemplated
hereby.
6.7 Approval of Merger. The stockholders of Mobilepro shall have
approved this Agreement and the Merger contemplated hereby in accordance with
its certificate of incorporation and by-laws and the DGCL.
6.8 Termination of Mobilepro Stock Incentive Plan and Advisors
Incentive Plan. The board of directors of Mobilepro will have taken all
necessary action to terminate the Stock Incentive Plan and Advisors Incentive
Plan of Mobilepro.
ARTICLE VII
CONDITIONS PRECEDENT TO OBLIGATIONS OF MOBILEPRO
The obligations of Mobilepro under this Agreement are subject to the
satisfaction or waiver by Mobilepro of the following conditions precedent on or
before the Closing Date:
7.1 Representations and Warranties. Without supplementation after the
date of this Agreement, the representations and warranties of CraftClick
contained in this Agreement shall be, with respect to those representations and
warranties qualified by any materiality standard, true and correct in all
respects, as of the Closing Date, and with respect to all other representations
and warranties, true and correct in all material respects, as of the Closing
Date, with the same force and effect as if made as of the Closing Date.
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7.2 Compliance with Agreements and Covenants. CraftClick shall have
performed and complied with all of its covenants, obligations and agreements
contained in this Agreement to be performed and complied with by it on or prior
to the Closing Date.
7.3 Consents and Approvals. CraftClick shall have received written
evidence satisfactory to them that all consents and approvals required for the
consummation of the transactions contemplated hereby have been obtained, and all
required filings have been made, including (without limitation) those set forth
on Schedule 4.3 hereto.
7.4 Documents. Mobilepro shall have received all of the agreements,
documents and items specified in Section 8.2 and all deliveries pursuant to
Section 8.3 shall have been made.
7.5 Actions or Proceedings. No action or proceeding by any Governmental
Authority or other Person shall have been instituted or threatened which could
enjoin, restrain or prohibit, or could result in substantial damages in respect
of, any provision of this Agreement or the consummation of the transactions
contemplated hereby.
ARTICLE VIII
DELIVERIES AT CLOSING
8.1 Deliveries by Mobilepro. At the Closing, in addition to any other
documents or agreements required under this Agreement, Mobilepro shall deliver
to CraftClick the following:
(a) Evidence, in form satisfactory to CraftClick, that all filings,
approvals and other matters set forth on Schedule 3.3 have been obtained; and
(b) a certificate, dated the Closing Date, of an officer of Mobilepro,
certifying as to the compliance by it with Sections 6.1 and 6.2 hereof;
(b) A certificate of the secretary (the "Secretary") of Mobilepro
certifying resolutions of the Board of Directors and stockholders of Mobilepro
approving and authorizing the execution, delivery and performance of this
Agreement and the Certificate of Merger and the consummation of the transactions
contemplated hereby and thereby, including the Merger;
(c) The Certificate of Incorporation of Mobilepro, certified by the
Secretary of State of Delaware, and the by-laws of Mobilepro, certified by the
Secretary of Mobilepro;
(d) Certificates of Good Standing for Mobilepro from the State of
Delaware and all the other jurisdictions set forth on Schedule 3.1 hereof;
23
(e) Evidence of termination of stock option and advisor plane of
Mobilepro;
(f) The executed Certificate of Merger.
8.2 Deliveries by CraftClick. At the Closing, in addition to any other
documents or agreements required under this Agreement, CraftClick shall deliver
to Mobilepro the following:
(a) Evidence, in form satisfactory to Mobilepro, that all filings,
approvals and other matters contemplated in Section 4.3 have been obtained;
(b) A certificate, dated the Closing Date, of an officer of
CraftClick, certifying as to compliance by CraftClick with Sections 7.2 hereof;
(c) A certificate of the Secretary of CraftClick certifying
resolutions of the Board of Directors of CraftClick approving and authorizing
the execution, delivery and performance of this Agreement and the Certificate of
Incorporation and the consummation of the transactions contemplated hereby and
thereby, including the Merger (together with an incumbency and signature
certificate regarding the officer(s) signing on behalf of CraftClick);
(d) The Certificate of Incorporation of CraftClick, certified by
the Secretary of State of Delaware, and the by-laws of CraftClick, certified by
the Secretary of CraftClick;
(e) A Certificate of Good Standing for CraftClick from the State of
Delaware;
(f) The executed Certificate of Merger.
8.3 Deliveries to or by Third Parties. At the Closing, in addition to
any other documents required under this Agreement, the following deliveries will
have been made:
(a) Each of CraftClick, Mobilepro and ▇▇▇▇▇ ▇. ▇▇▇▇▇ will have
executed and delivered to Dungavel, Inc., the Investor Rights Agreement dated as
of the Closing Date and substantially in the form of Exhibit B hereto.
(b) ▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇ will have executed and
delivered to CraftClick and Dungavel, Inc. the form of lock-up agreement in the
form of Exhibit C hereto.
(c) CraftClick will have delivered shares of Surviving Corporation
Common Stock, issued pursuant to the 2001 Performance Equity Plan of the
Surviving Corporation, in the amounts, to the persons and as consideration for
the action as set forth below:
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No. of
Shares Person Reason
---------- ----------------------- ------------------------------------
250,000 Dungavel, Inc. For consulting services to
CraftClick in structuring the Merger
and other advice in connection with
the recapitalization and
reincorporation of CraftClick.
---------- ----------------------- ------------------------------------
250,000 ▇▇▇▇▇ ▇. ▇▇▇▇▇ As compensation for employment
services.
---------- ----------------------- ------------------------------------
1,475,000 ZDG Investments, Inc. For consulting services to
CraftClick in structuring the Merger
and other advice in connection with
the recapitalization and
reincorporation of CraftClick.
---------- ----------------------- ------------------------------------
450,000 ▇▇▇▇▇▇▇ Capital Ltd. For consulting services to
CraftClick in structuring the Merger
and other advice in connection with
the reorganization of CraftClick.
---------- ----------------------- ------------------------------------
50,000 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ As compensation for services as an
officer and director of CraftClick.
---------- ----------------------- ------------------------------------
50,000 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ As compensation for services as an
officer and director of CraftClick
---------- ----------------------- ------------------------------------
50,000 ▇▇▇▇▇ ▇▇▇▇▇ As compensation for services as an
officer and director of CraftClick
---------- ----------------------- ------------------------------------
25,000 Weil Consulting Corp. For consulting services to
CraftClick in structuring the Merger
and other advice in connection with
the reorganization of CraftClick.
(d) CraftClick will enter into a debt conversion agreement with
Dungavel, Inc., effective immediately after the Merger, in respect of debt
incurred by Mobilepro on September 6, 2000 which by operation of law by reason
of the Merger has become an obligation of Surviving Corporation, for the
conversion of $50,000 principal amount and all interest due thereon into
3,000,000 shares of Common Stock of CraftClick, to be issued on a `restricted
stock' basis.
(e) ▇▇▇▇▇ ▇. ▇▇▇▇▇ and CraftClick will have executed and delivered
a copy of the form of employment agreement attached hereto as Exhibit D.
ARTICLE IX
TERMINATION; TERMINATION FEE
9.1 Termination. Anything herein or elsewhere to the contrary
notwithstanding, this Agreement may be terminated and the Merger contemplated
hereby may be abandoned at any time prior to the Closing Date, as follows:
(a) by mutual written agreement of CraftClick and Mobilepro;
25
(b) by CraftClick (if CraftClick is not then in material breach of
its obligations under this Agreement) if (i) a material default or breach shall
be made by Mobilepro with respect to the due and timely performance of any of
its covenants and agreements contained herein and such default is not cured
within ten days, or (ii) if Mobilepro makes an amendment or supplement to any
Schedule hereto and such amendment or supplement reflects a Mobilepro Material
Adverse Effect after the date of this Agreement, or (iii) a Mobilepro Material
Adverse Change shall have occurred after the date of this Agreement, or (iv)
Mobilepro board of directors withdraws its recommendation of the Merger or
recommends to the Mobilepro stockholders the approval of any transaction other
than the Merger;
(c) by Mobilepro (if Mobilepro is not then in material breach of
its obligations under this Agreement) if (i) a material default or breach shall
be made by CraftClick with respect to the due and timely performance of any of
its covenants and agreements contained herein and such default is not cured
within ten days, or (ii) if CraftClick makes an amendment or supplement to any
Schedule hereto after the date hereof and such amendment or supplement reflects
a material change in the financial condition of CraftClick after the date hereof
or reflects a material change in the representations and warranties set forth in
Section 4.6 (a "CraftClick Material Adverse Effect"), or (iii) CraftClick enters
into any agreement to effect any transaction described in Section 5.7(b) of this
Agreement, or (v) CraftClick board of directors withdraws its approval of the
Merger;
(d) by CraftClick on the one hand and by Mobilepro on the other
hand if the Effective Time has not occurred within two months following the Date
of this Agreement for any reason unless the Parties agree to an extension in
writing, provided that the right to terminate this Agreement under this
subparagraph 9.1(d) shall not be available to a party that is in breach of any
representation, warranty or covenant in this Agreement, which breach would
entitle any other party to terminate this Agreement.
(e) by CraftClick on the one hand and by Mobilepro on the other
hand if prior to the Effective Time a third party successfully brings an action
resulting in a permanent injunction preventing the consummation of the Merger
pursuant to this Agreement.
9.2 Effect of Termination. In the event of termination pursuant to
Section 9.1 hereof, written notice thereof shall be given to the other parties
and all obligations (except as set forth in this Section 9.2) of the parties
shall terminate and no party shall have any right against any other party hereto
for any Damages (as hereinafter defined). "Damages" means the dollar amount of
any loss, damage, expense (including out-of-pocket expenses) or liability,
including, without limitation, reasonable attorneys' fees and disbursements
arising out of the preparation and execution of this Agreement, fulfilling in
whole or in part any obligations under this Agreement or otherwise incurred by a
party in any action or proceeding between such party and the other party hereto
or between such party and a third party, which is determined to have been
26
sustained, suffered or incurred by a party and to have arisen from or in
connection with an event or state of facts which is subject to claim under this
Agreement.
ARTICLE X
INDEMNIFICATION
10.1 Indemnification by Participating Stockholders. The Participating
Stockholders shall severally (in proportion to their ownership of the shares of
Common Stock of the Surviving Corporation received in the Merger) indemnify and
hold harmless the Surviving Corporation from and against, and shall reimburse
the Surviving Corporation for any Damages which may be sustained, suffered or
incurred by them, whether as a result of any third party claim or otherwise, and
which arise or result from a breach of any of the Mobilepro representations,
warranties, agreements, obligations or undertakings contained in this Agreement.
This indemnity will survive the Closing. Claims made for indemnity hereunder
must be made prior to the two year anniversary of the Closing Date. Any claim
for indemnity asserted within the relevant period under this section shall
survive until resolved.
10.2 Procedure.
(a) Third Party Claims. In the event that the Surviving Corporation
becomes aware of a third party claim for which the Participating Stockholders
would be liable hereunder, the Surviving Corporation shall give reasonably
prompt notice in writing to Mobilepro as provided in this Agreement which will
be responsible for receiving notice on behalf of all the Participating
Stockholders. The notice will identify the basis for the claim or demand, and
the amount or the estimated amount thereof to the extent then determinable,
which estimate will not be conclusive of the final amount of the claim whether
or not the claim is a third party claim ("Claim Notice"). Any delay in giving
the Claim Notice will not be deemed a waiver or result in any discontinuation of
any rights of the Surviving Corporation, except to the extent the rights of the
Participating Stockholders are actually prejudiced by such failure. The
Participating Stockholders, upon request of the Surviving Corporation will
retain counsel who will be reasonably acceptable to the nominee director of
Dungavel, Inc. to represent the Surviving Corporation and shall pay the
reasonable fees and disbursements of such counsel with regard thereto; provided,
however, that the Surviving Corporation is hereby authorized, prior to the date
on which it receives written notice from the Participating Stockholders
designating such counsel, to retain counsel, whose fees and expenses shall be at
the expense of the Participating Stockholders, to file any motion, answer or
other pleading and take such other action which it reasonably deems necessary to
protect its interests or those of the Surviving Corporation until the date on
which the Surviving Corporation receives notice from the Participating
Stockholders. After the Participating Stockholders retain counsel, the Surviving
Corporation shall have the right to retain its own counsel, but the fees and
expenses of such counsel will be at the expense of the Surviving Corporation
unless (i) the Surviving Corporation and Participating Stockholders mutually
agree to the retention of such counsel, or (ii) the named parties in the
27
proceeding include both the Surviving Corporation and the Participating
Stockholders or Mobilepro and representation of any two or more of the parties
by the same counsel would be inappropriate due to actual or potential differing
interests between or among them. The Participating Stockholder shall not, in
connection with any proceeding or related proceeding in the same jurisdiction,
be liable for the fees and expenses of more than one law firm for the Surviving
Corporation, except to the extent the Surviving Corporation retains counsel to
protect its rights. If requested by the Participating Stockholders, the
Surviving Corporation agrees to cooperate with the Participating Stockholders
and its counsel in contesting any third party claim which the Participating
Stockholders defends. A third party claim may not be settled by the
Participating Stockholders without the prior written consent of the Surviving
Corporation, approved by the director nominee of Dungavel, Inc. (which consent
will not be unreasonably withheld).
(b) Direct Claims. In the event the Surviving Corporation has a
direct claim against Mobilepro or the Participating Stockholders, the Surviving
Corporation will send a Claim Notice to Mobilepro on behalf of the Participating
Stockholders. Any claim of the Surviving Corporation will be determined solely
by the Dungavel, Inc. nominee director and, if any, any other directors of the
Surviving Corporation who have not had any business or personal relationship
with Mobilepro or the Participating Stockholders for the 10 years prior to the
Merger and the Claim Notice will be sent by such director or directors.
(c) Retention of Records. After delivery of a Claim Notice, so long
as any right to indemnification exists pursuant to this Article X, the affected
parties each agree to retain all books and records related to the Claim Notice.
In each instance, the Surviving Corporation will have the right to be kept fully
informed by the Participating Stockholders and its legal counsel with respect to
any legal proceeding. Any information or documents made available to any party
hereunder and designated as confidential by the party providing such information
or documents and which is not otherwise generally available to the public and
not already within the knowledge of the party to whom the information is
provided (unless otherwise covered by the confidentiality provisions of any
other agreement among the parties hereto, or any of them), and except as may be
required by applicable law, shall not be disclosed to any third party (except
for the representatives of the party being provided with the information in
which event the party being provided with the information shall request its
representatives not to disclose any such information which it otherwise is
required hereunder to be kept confidential).
10.3 Adjustment to Merger Consideration. Any indemnification payment
made pursuant to this Article X will be deemed to be an adjustment to the merger
consideration.
10.4 Payment and Ceiling. The amount due upon payment of an indemnified
claim will be made solely by the delivery of shares of Surviving Corporation
Common Stock by the Participating Stockholders, free and clear of all liens,
28
valued for this purpose at the last sale price of the Surviving Corporation
Common Stock on the last trading day prior to the date the Claim Notice is given
("Sale Price"). The payment of Damages by the Participating Stockholders will be
up to a maximum of 2,500,000 shares of Surviving Corporation Common Stock issued
in the Merger, deliverable pro rata from all the Participating Stockholders in
respect of the Damages incurred by the Surviving Corporation. The number of
shares of Surviving Corporation deliverable as payment of Damages will be
proportionately increased or decreased to account for any stock dividend,
subdivision, reclassification, stock split or combination of Surviving
Corporation Common Stock or any merger, combination or consolidation in which
the Surviving Corporation is not the surviving entity.
10.5 Representations and Warranties. For purposes of indemnity under
this Article X for breach of a representation or warranty of Mobilepro under
this Agreement, the representations and warranties shall be the representations
and warranties of Mobilepro made herein, as supplemented, modified or amended by
any schedule thereto as of the Closing Date.
10.6 Sole Remedy. After the Closing Date, the sole remedy for recovery
of Damages under this Agreement will be in accordance with this Article X.
ARTICLE XI
MISCELLANEOUS
11.1 Expenses. Each party hereto shall bear its own expenses with
respect to the transactions contemplated hereby.
11.2 Amendment. This Agreement may be amended, modified or supplemented
but only in writing signed by the parties hereto.
11.3 Confidentiality and Return of Information to Mobilepro.
(a) On and after the date of this Agreement, CraftClick will keep
secret and confidential (i) all information heretofore or hereafter acquired by
it and deemed to be confidential by Mobilepro, and (ii) all other information
provided by Mobilepro to CraftClick relating to the business, operations,
employees, customers and distributors of Mobilepro, including, but not limited
to, any customer or distributor lists, documentation regarding Intellectual
Property, marketing arrangements, business plans, sales plans, promotional sales
materials, pricing information, manuals, correspondence, notes, financial data
or employee information (all such information described in clauses (i) and (ii)
above is hereinafter collectively referred to as "Mobilepro Confidential
Information").
(b) Upon any termination of this Agreement pursuant to Article IX
hereof, CraftClick shall return to Mobilepro all documents and copies of
documents in its possession relating to any Mobilepro Confidential Information,
and no director, officer, employee or representative of CraftClick shall make or
retain any copy or extract of any of the foregoing.
29
11.4 Confidentiality and Return of Information to CraftClick.
(a) On and after the date of this Agreement, Mobilepro will
keep secret and confidential (i) all information heretofore or hereafter
acquired by it and deemed to be confidential by CraftClick, and (ii) all other
information provided by CraftClick to Mobilepro relating to the business,
operations, and employees of CraftClick, including, but not limited to, any
documentation regarding Intellectual Property, marketing arrangements, business
plans, sales plans, promotional sales materials, pricing information, manuals,
correspondence, notes, financial data or employee information (all such
information described in clauses (i) and (ii) above is hereinafter collectively
referred to as "CraftClick Confidential Information").
(b) Upon any termination of this Agreement pursuant to Article IX
hereof, Mobilepro shall return to CraftClick all documents and copies of
documents in its possession relating to any CraftClick Confidential Information,
and no director, officer, employee or representative of Mobilepro shall make or
retain any copy or extract of any of the foregoing.
11.5 Press Release: Public Announcements. Promptly after execution of
this Agreement, Mobilepro and CraftClick may issue press releases in the form
attached hereto as Exhibit D. The parties shall not make any other public
announcements in respect of this Agreement or the transactions contemplated
herein without prior consultation and approval by the other party as to the form
and content thereof, which approval shall not be unreasonably withheld.
Notwithstanding the foregoing, any party may make any disclosure which its
counsel advises is required by applicable law or regulation, in which case the
other party shall be given such reasonable advance notice as is practicable in
the circumstances and the parties shall use their best efforts to cause a
mutually agreeable release or announcement to be issued.
11.6 Notices. Any notice, request, instruction or other document to be
given hereunder by a party hereto shall be in writing and shall be deemed to
have been given (a) when received if given in person, (b) on the date of
transmission if sent by telex, facsimile or other wire transmission or (c) three
business days after being deposited in the U.S. mail, certified or registered
mail, postage prepaid:
(a) If to Mobilepro:
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Tel No.: ▇▇▇-▇▇▇-▇▇▇▇
30
with a copy to:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Tel. No.: ▇▇▇-▇▇▇-▇▇▇▇
(b) If to CraftClick:
c/o ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
or to such other individual or address as a party hereto may designate for
itself by notice given as herein provided.
11.7 Waivers. The failure of a party hereto at any time or times to
require performance of any provision hereof shall in no manner affect its right
at a later time to enforce the same. No waiver by a party of any condition or of
any breach of any term, covenant, representation or warranty contained in this
Agreement shall be effective unless in writing, and no waiver in any one or more
instances shall be deemed to be a further or continuing waiver of any such
condition or breach in other instances or a waiver of any other condition or
breach of any other term, covenant, representation or warranty.
11.8 Interpretation. The headings preceding the text of Articles and
Sections included in this Agreement and the headings to Schedules attached to
this Agreement are for convenience only and shall not be deemed part of this
Agreement or be given any effect in interpreting this Agreement. The use of the
masculine, feminine or neuter gender herein shall not limit any provision of
this Agreement. The use of the terms "including" or "include" shall in all cases
herein mean "including, without limitation" or "include, without limitation,"
respectively.
31
11.9 Applicable Law. This Agreement shall be governed by and construed
and enforced in accordance with the internal laws of the State of New York,
without giving effect to the principles of conflicts of law thereof.
11.10 Assignment. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns;
provided, however, that no assignment of any rights or obligations shall be made
by any party without the prior written consent of all the other parties hereto.
11.11 No Third Party Beneficiaries. This Agreement is solely for the
benefit of the parties hereto and, to the extent provided herein, their
respective directors, officers, employees, agents and representatives, and no
provision of this Agreement shall be deemed to confer upon other third parties
any remedy, claim, liability, reimbursement, cause of action or other right.
11.12 Further Assurances. Upon the request of the parties hereto, the
other parties hereto will, on and after the Closing Date, execute and deliver
such other documents, releases, assignments and other instruments as may be
required to effectuate completely the transactions contemplated by this
Agreement.
11.13 Severability. If any provision of this Agreement shall be held
invalid, illegal or unenforceable, the validity, legality or enforceability of
the other provisions hereof shall not be affected thereby, and there shall be
deemed substituted for the provision at issue a valid, legal and enforceable
provision as similar as possible to the provision at issue.
11.14 Survivability. If the Merger is consummated, the representations
and warranties of the parties will be deemed to survive for two years after the
Closing Date subject to Article X hereof.
11.15 Consent to Venue and Service. Mobilepro and CraftClick each
hereby (a) agrees that any suit, action or proceeding arising out of or relating
to this Agreement shall be instituted exclusively in New York State Supreme
Court, County of New York, or in the United States District Court for the
Southern District of New York, (b) waives any objection to the venue of any such
suit, action or proceeding and the right to assert that such forum is not a
convenient forum for such suit, action or proceeding, and(c) irrevocably
consents to the jurisdiction of the New York State Supreme Court, county of New
York, and the United States District Court for the Southern District of New York
in any such suit, action or proceeding and each of Mobilepro and CraftClick
further agrees to accept and acknowledge service of any and all process that may
be served in any suit, action or proceeding in New York State Supreme Court,
County of New York or in the United States District Court for the Southern
District of New York and agrees that service of process upon it mailed by
certified mail to its address shall be deemed in every respect effective service
of process upon it in any suit, action or proceeding.
32
11.16 Remedies Cumulative. The remedies provided in this Agreement
shall be cumulative and shall not preclude the assertion or exercise of any
other rights or remedies available by law, in equity or otherwise.
11.17 Entire Understanding. This Agreement (including the Schedules and
Exhibits) and the Certificate of Merger set forth the entire agreement and
understanding of the parties hereto and supersede all prior agreements,
arrangements and understandings between the parties.
11.18 Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered on the date first above written.
▇▇▇▇▇▇▇▇▇▇.▇▇▇, INC.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
MOBILEPRO CORP.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
33