EXHIBIT 2.28
AGREEMENT AND PLAN OF MERGER
by and among
IXL HOLDINGS, INC.,
iXL, INC.,
EXCHANGE PLACE SOLUTIONS, INC.
AND
THE EXCHANGE PLACE SHAREHOLDER
Dated as of SEPTEMBER 10, 1998
AGREEMENT AND PLAN OF MERGER
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THIS AGREEMENT AND PLAN OF MERGER is entered into as of this 10th day of
September, 1998, by and between Exchange Place Solutions, Inc., a Georgia
corporation ("Exchange Place"), IXL Holdings, Inc., a Delaware corporation
("Parent"), iXL, Inc., a Delaware corporation, or its successors or assigns
("Sub"), and the sole shareholder of Exchange Place as listed on the signature
page hereto (the "Exchange Place Shareholder").
R E C I T A L S:
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A. Exchange Place is engaged in the business of consulting, particularly in
the financial services industry or for clients furnishing internet services (the
"Exchange Place Business").
B. Exchange Place and Sub each desire to merge their respective companies and
business operations, all on the terms and subject to the conditions set forth
herein (the "Merger").
C. The Exchange Place Shareholder owns 100% of the issued and outstanding
capital stock of Exchange Place (the "Exchange Place Stock").
D. The respective Boards of Directors of Parent, Sub and Exchange Place, and
the respective shareholders of Sub and Exchange Place, have approved the Merger,
upon the terms and subject to the conditions set forth herein.
E. The parties hereto intend for the Merger to qualify, for federal income
tax purposes, as a reorganization within the meaning of Section 368(a) of the
Internal Revenue Code of 1986, as amended (the "Code").
NOW, THEREFORE, in consideration of the mutual covenants, benefits, conditions
and agreements set forth herein and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, it is hereby
agreed as follows:
ARTICLE I
THE MERGER
1.1 The Merger. Upon the terms and subject to the conditions hereof, at the
Effective Time (as defined in Section 1.3 hereof), (a) Exchange Place shall be
merged with and into Sub, (b) the separate existence of Exchange Place shall
cease, and (c) Sub shall continue as the surviving corporation in the Merger
under the laws of the State of Delaware under the name iXL, Inc. For purposes
of this Agreement, Sub shall be referred to, for the period commencing on the
Effective Time, as the "Surviving Corporation."
1.2 Closing and Closing Date. Unless this Merger Agreement shall have been
terminated and the transactions herein contemplated shall have been abandoned
pursuant to Section 9.1 hereof, and subject to the satisfaction or waiver of the
conditions set forth in Article VII hereof, the closing of the Merger (the
"Closing") will take place as promptly as practicable (and in any event within
five business days after satisfaction of the conditions set forth in Sections
7.1 and 7.2 hereof) (the "Closing Date") at the offices of ▇▇▇▇▇▇ & ▇▇▇▇▇▇, A
Professional Corporation, One Buckhead Plaza, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇. ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, unless another date or place is agreed to by the parties.
1.3 Effective Time of the Merger. At the Closing, the parties hereto shall
cause (a) a certificate of merger (the "Delaware Certificate of Merger") to be
filed with the office of the Secretary of State of Delaware in accordance with
the provisions of the Delaware General Corporation Law, as amended (the "DGCL");
and (b) a certificate of merger (the "Georgia Certificate of Merger";
collectively with the Delaware Certificate of Merger, the "Certificate of
Merger") to be filed with the office of the Secretary of State of Georgia in
accordance with the provisions of the Georgia Business Corporation Code (the
"GBCC"). When used herein, the term "Effective Time" shall mean the time when
the Delaware Certificate of Merger has been accepted for filing by the Secretary
of State of Delaware, or such time as otherwise specified therein.
1.4 Effect of the Merger. The Merger shall, from and after the Effective Time,
have all the effects provided by the DGCL and the GBCC. If at any time after the
Effective Time, any further action is deemed necessary or desirable to carry out
the purposes of this Agreement, the parties hereto agree that the Surviving
Corporation and its proper officers and directors shall be authorized to take,
and shall take, any and all such action.
ARTICLE II
THE SURVIVING CORPORATION
2.1 Certificate of Incorporation. The Certificate of Incorporation of Sub, a
form of which is attached to a closing certificate and incumbency certificate,
substantially in the form of Exhibit "A" hereto ("Sub's Closing Certificate"),
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shall be the Certificate of Incorporation of the Surviving Corporation after the
Effective Time, until thereafter changed or amended as provided therein or by
applicable law.
2.2 Bylaws. The Bylaws of Sub as in effect immediately prior to the
Effective Time shall be the Bylaws of the Surviving Corporation, until
thereafter changed or amended as provided therein or by applicable law. A copy
of the Bylaws of Sub is attached to the Sub's Closing Certificate.
2.3 Board of Directors; Officers. The Board of Directors and officers of Sub
immediately prior to the Effective Time shall be the Board of Directors and
officers, respectively, of the Surviving Corporation, until the earlier of their
respective resignations or the time that their respective successors are duly
elected or appointed and qualified.
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ARTICLE III
CONVERSION OF SHARES
3.1 Merger Consideration. As of the Effective Time:
(a) All shares of Exchange Place Stock owned by Exchange Place shall, by
virtue of the Merger and without any action on the part of any shareholder,
officer or director of Exchange Place or Sub, be canceled and retired and shall
cease to exist, and no consideration shall be delivered in exchange therefor.
(b) Each issued and outstanding share of Exchange Place Stock (other
than any Dissenting Shares, as defined in Section 3.2 hereof) shall, upon
surrender to Sub, at the Closing, of the underlying share certificates, be
converted into, and become exchangeable for, a number of shares of validly
issued, fully paid and nonassessable Class B Common Stock of Parent, $.01 par
value (the "Parent Stock") based on the following equation:
PS= 275,000 - D
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$10
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S
where:
PS = the number of shares of Parent Stock (valued, as of the
Closing, at $10 per share) for which each share of Exchange
Place Stock shall be exchanged pursuant to the Merger
D = any outstanding indebtedness of Exchange Place (the
"Exchange Place Debt"), including debt for borrowed money
and accrued interest thereon, capital leases, accounts
payable, accrued expenses, and any unpaid legal, accounting
or other fees, all to be determined as of three business
days prior to the Closing Date and all as determined in
accordance with generally accepted accounting principles
("GAAP")
S = the number of issued and outstanding shares of Exchange
Place Stock on the Closing Date
(c) Each issued and outstanding share of common stock of Sub shall, by
virtue of the Merger and without any action on the part of any shareholder,
officer or director of Exchange Place or Sub, be converted into and become one
fully paid and nonassessable share of common stock of the Surviving Corporation.
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3.2 Dissenting Shares. Notwithstanding any provision hereof to the
contrary, any shares of Exchange Place Stock held by a Dissenting Shareholder
(as hereinafter defined) shall not be converted as described in Section 3.1(b)
hereof, but instead shall be converted into the right to receive the
consideration due a Dissenting Shareholder pursuant to the DGCL or GBCC, as
applicable, provided, however, that if a Dissenting Shareholder shall fail to
perfect his demand, withdraw his demand or otherwise lose his right for
appraisal under the terms of the DGCL or GBCC, as applicable, then the Exchange
Place Stock held by such Dissenting Shareholder (the "Dissenting Shares") shall
be deemed to be converted as of the Effective Time in accordance with the
provisions of Section 3.1 hereof. Exchange Place shall not voluntarily make any
payment with respect to, settle, or offer to settle or otherwise negotiate, any
such demands. All amounts paid to Dissenting Shareholders shall be paid without
interest thereon (to the extent permitted by applicable law) by the Surviving
Corporation. For purposes hereof, the term "Dissenting Shareholder" shall mean
an Exchange Place Shareholder who (a) objects to the Merger; and (b) complies
with the applicable provisions of the DGCL or GBCC concerning dissenter's
rights.
3.3 No Further Rights. From and after the Effective Time, holders of
certificates theretofore evidencing Exchange Place Stock shall cease to have any
rights as stockholders of Exchange Place, except as provided herein or by
applicable law.
3.4 Closing of Exchange Place's Transfer Books. At the Effective Time, the
stock transfer books of Exchange Place shall be closed and no transfer of
Exchange Place Stock shall be made thereafter. If after the Effective Time,
certificates for Exchange Place Stock are presented to Parent or the Surviving
Corporation, they shall be canceled and exchanged for a consideration as set
forth in Section 3.1 hereof, subject to applicable law in the case of Dissenting
Shareholders.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF EXCHANGE PLACE
Exchange Place, and the Exchange Place Shareholder, jointly and severally,
represent and warrant to Parent and Sub as follows, which representations and
warranties shall survive the Closing in accordance with Section 10.1 hereof.
4.1 Organization and Qualification. Exchange Place is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Georgia. Exchange Place has the requisite corporate power and authority to
carry on the Exchange Place Business as it is now being conducted and is duly
qualified or licensed to do business, and is in good standing, in each
jurisdiction where the character of its properties owned or held under lease or
the nature of its activities makes such qualification necessary. Complete and
correct copies of the Articles of Incorporation and Bylaws, if any, of Exchange
Place as in effect on the date hereof are attached to a closing certificate and
incumbency certificate, substantially in the form of Exhibit "B" hereto
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("Exchange Place's Closing Certificate"). The minute book of Exchange Place, a
true and complete copy of which has been delivered to Parent, (a) accurately
reflects all action taken by the directors and shareholders of Exchange Place at
meetings of Exchange Place's Board of Directors
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or shareholders, as the case may be; and (b) contains true and complete copies,
or originals, of the respective minutes, if any, of all meetings or consent
actions of the directors or shareholders.
4.2 Authority. Exchange Place has the necessary corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery hereof and the
consummation of the transactions contemplated hereby by Exchange Place have been
duly and validly authorized and approved by Exchange Place's Board of Directors
and the Exchange Place Shareholder, and no other corporate or shareholder
proceedings on the part of Exchange Place, its Board of Directors or the
Exchange Place Shareholder is necessary to authorize or approve this Agreement
or to consummate the transactions contemplated hereby. This Agreement has been
duly executed and delivered by Exchange Place and the Exchange Place
Shareholder, and assuming the due authorization, execution and delivery by
Parent and Sub, constitutes the valid and binding obligation of Exchange Place
and the Exchange Place Shareholder, enforceable against Exchange Place and the
Exchange Place Shareholder in accordance with its terms subject, in each case,
to bankruptcy, insolvency, reorganization, moratorium and similar laws of
general application relating to or affecting creditors' rights and to general
principles of equity, including principles of commercial reasonableness, good
faith and fair dealing.
4.3 Capitalization.
(a) The authorized capital stock of Exchange Place consists of 1,000,000
shares of common stock. All issued shares are validly issued and outstanding,
fully paid and nonassessable, and issued to the Exchange Place Shareholder. All
outstanding capital stock of Exchange Place was issued in accordance with
applicable federal and state securities laws. Except as set forth on Schedule
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4.3(a) hereto, there are no options, warrants, calls, convertible notes,
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agreements, commitments or other rights presently outstanding that would
obligate Exchange Place or the Exchange Place Shareholder to issue, deliver or
sell shares of its capital stock, or to grant, extend or enter into any such
option, warrant, call, convertible note, agreement, commitment or other right.
In addition to the foregoing, as of the date hereof, Exchange Place has no
bonds, debentures, notes or other indebtedness issued or outstanding that have
voting rights in Exchange Place. Other than the shares issued to and held by the
Exchange Place Shareholder, Schedule 4.3(a) sets forth a list of (i) all holders
of record of (A) Exchange Place Stock, and (B) options, warrants, convertible
notes or other rights to purchase capital stock of Exchange Place (collectively,
"Exchange Place Stock Rights"); (ii) the number of shares held by each Exchange
Place Shareholder and the number of shares of capital stock of Exchange Place
represented by the Exchange Place Stock Rights; and (iii) the exercise price for
each Exchange Place Stock Right.
(b) All of the issued and outstanding shares of capital stock of Exchange
Place are validly issued, fully paid and nonassessable. Except as set forth on
Schedule 4.3(b) hereto, the Exchange Place Shareholder represents and warrants
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that the Exchange Place Stock held by the Exchange Place Shareholder is free and
clear of any lien, charge, security interest, pledge, option, right of first
refusal, voting proxy or other voting agreement, or encumbrance of any kind or
nature other than restrictions on transfer imposed by federal and state
securities laws (any of the foregoing, a "Lien").
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4.4 Subsidiaries. Exchange Place has no subsidiaries and does not otherwise
own or control, directly or indirectly, any equity interest, or any security
convertible into an equity interest, in any corporation, partnership, limited
liability company, joint venture, association or other business entity (any of
the foregoing, an "Entity").
4.5 No Conflicts, Required Filings and Consents. Except as set forth on
Schedule 4.5 hereto, none of (i) the execution and delivery of this Agreement by
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Exchange Place or the Exchange Place Shareholder, (ii) the consummation by
Exchange Place and the Exchange Place Shareholder of the transactions
contemplated hereby or (iii) compliance by Exchange Place with any of the
provisions hereof will:
(a) conflict with or violate the Articles of Incorporation or Bylaws of
Exchange Place;
(b) result in a violation of any statute, ordinance, rule, regulation,
order, judgment or decree applicable to Exchange Place or the Exchange Place
Shareholder, or by which Exchange Place or any of its properties or assets may
be bound or affected;
(c) result in a violation or breach of, or constitute a default (or an
event that, with notice or lapse of time or both, would become a default) under,
or give to any other any right of termination, amendment, acceleration or
cancellation of, any note, bond, mortgage, indenture, or any material contract,
agreement, arrangement, lease, license, permit, judgment, decree, franchise or
other instrument or obligation, to which Exchange Place is a party or by which
Exchange Place or any of its properties or assets may be bound or affected;
(d) result in the creation of any Lien on any of the property or assets
of Exchange Place; or
(e) require any consent, waiver, license, approval, authorization, order,
permit, registration or filing with, or notification to (any of the foregoing
being a "Consent"), (i) any government or subdivision thereof, whether domestic
or foreign, or any administrative, governmental, or regulatory authority,
agency, commission, court, tribunal or body, whether domestic, foreign or
multinational (any of the foregoing, a "Governmental Entity"), except for the
filing of the Certificate of Merger pursuant to the DGCL and the GBCC; or (ii)
any other individual or Entity (collectively, a "Person").
4.6 Financial Statements. Exchange Place has heretofore furnished Parent
with a true and complete copy of the unaudited financial statements of Exchange
Place for the year ended December 31, 1997, and for the six month period ended
June 30, 1998 (all of the foregoing collectively herein referred to as the
"Exchange Place Financial Statements"). Except as disclosed therein, the
Exchange Place Financial Statements have been prepared in accordance with GAAP
(except for the absence of footnotes and normal year end adjustments
consistently followed throughout the period indicated, and present fairly, in
all material respects, the financial position and operating results of Exchange
Place as of the dates, and during the periods, indicated therein.
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4.7 Absence of Changes. Except as provided in Schedule 4.7 hereto and except
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as contemplated hereby, since June 30, 1998 (a) Exchange Place has not entered
into any transaction that was not in the ordinary course of business; (b) except
for sales of services and licenses of software in the ordinary course of
business, there has been no sale, assignment, transfer, mortgage, pledge,
encumbrance or lease of any material asset or property of Exchange Place; (c)
there has been (i) no declaration or payment of a dividend, or any other
declaration, payment or distribution of any type or nature to any shareholder of
Exchange Place in respect of its stock, whether in cash or property, and (ii) no
purchase or redemption of any share of the capital stock of Exchange Place; (d)
there has been no declaration, payment, or commitment for the payment, by
Exchange Place, of a bonus or other additional salary, compensation, or benefit
to any employee of Exchange Place that was not in the ordinary course of
business, except for normal year-end bonuses paid in the ordinary course of
business; (e) there has been no release, compromise, waiver or cancellation of
any debt to or claim by Exchange Place, or waiver of any right of Exchange
Place; (f) there have been no capital expenditures in excess of $10,000 for any
single item, or $25,000 in the aggregate; (g) there has been no change in
accounting methods or practices or revaluation of any asset of Exchange Place
(other than Exchange Place Accounts Receivable as defined in Section 4.26 hereof
written down in the ordinary course of business in excess of $10,000 for any
single Exchange Place Accounts Receivable, or $25,000 in the aggregate); (h)
there has been no material damage, or destruction to, or loss of, physical
property (whether or not covered by insurance) adversely affecting the Exchange
Place Business or the operations of Exchange Place; (i) there has been no loan
by Exchange Place, or guaranty by Exchange Place of any loan, to any employee of
Exchange Place; (j) Exchange Place has not ceased to transact business with any
customer that, as of the date of such cessation, represented more than 5% of the
annual gross revenues of Exchange Place; (k) there has been no termination or
resignation of any key employee or officer of Exchange Place, and to the
knowledge of Exchange Place, no such termination or resignation is threatened;
(l) there has been no amendment or termination of any material oral or written
contract, agreement or license related to the Exchange Place Business, to which
Exchange Place is a party or by which it is bound, except in the ordinary course
of business, or except as expressly contemplated hereby; (m) Exchange Place has
not failed to satisfy any of its debts, obligations or liabilities related to
the Exchange Place Business or the assets of Exchange Place as the same become
due and owing (except for Exchange Place Accounts Payable (as defined in Section
4.27 hereof) payable in accordance with past practices and in the ordinary
course of business); (n) there has been no agreement or commitment by Exchange
Place to do any of the foregoing; and (o) there has been no other event or
condition of any character pertaining to and materially and adversely affecting
the assets, business or financial condition of Exchange Place.
4.8 Undisclosed Liabilities. Except as set forth on Schedule 4.8 hereto,
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Exchange Place has no debt, liability or obligation of any kind, whether
accrued, absolute or otherwise, including any liability or obligation on account
of taxes or any governmental charge or penalty, interest or fine, except (a)
liabilities incurred in the ordinary course of business after June 30, 1998,
that would not, whether individually or in the aggregate, have a material
adverse impact on the business or financial condition of Exchange Place; (b)
liabilities reflected on the Exchange Place Financial Statements; and (c)
liabilities incurred as a result of the transactions contemplated hereby.
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4.9 Title to Properties. Except as set forth on Schedule 4.9 hereto,
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Exchange Place has good and marketable title to all tangible property and assets
used in the Exchange Place Business, and good and valid title to its leasehold
interests, in each case, free and clear of any and all Liens other than
Permitted Liens (as defined in Section 10.11 hereof).
4.10 Equipment. Exchange Place has heretofore furnished Parent with a true
and correct list of all items of tangible personal property (including computer
hardware) necessary for or used in the operation of the Exchange Place Business
in the manner in which it has been and is now operated by Exchange Place ("the
Exchange Place Equipment"), except for personal property having a net book value
of less than $1,000. Except as set forth on Schedule 4.10 hereto, each material
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item of Exchange Place Equipment is in good condition and repair, ordinary wear
and tear excepted.
4.11 Intellectual Property.
(a) Exchange Place has heretofore furnished Parent with a true and
complete list of all material proprietary technology, patents, patent rights,
trademarks, trademark rights, trade names, trade name rights, service marks,
service ▇▇▇▇ rights, and copyrights (and all pending applications for any of the
foregoing) used by Exchange Place in the conduct of the Exchange Place Business
(together with trade secrets and know how used in the conduct of the Exchange
Place Business, the "Exchange Place Intellectual Property Rights"). Exchange
Place owns, or is validly licensed or otherwise has the right to use or exploit,
as currently used or exploited, all of the Exchange Place Intellectual Property
Rights, free of any obligation to make any payment (whether of a royalty,
license fee, compensation or otherwise). No claims are pending or, to the
knowledge of Exchange Place, threatened, that Exchange Place is infringing or
otherwise adversely affecting the rights of any Person with regard to any
Exchange Place Intellectual Property Right. No Person is infringing the rights
of Exchange Place with respect to any Exchange Place Intellectual Property
Right. Neither Exchange Place nor any employee, agent or independent contractor
of Exchange Place, in connection with the performance of such Person's services
with Exchange Place, has used, appropriated or disclosed, directly or
indirectly, any trade secret or other proprietary or confidential information of
any other Person, or otherwise violated any confidential relationship with any
other Person.
(b) Exchange Place has heretofore furnished Parent with a true and
complete list of all material computer software used by Exchange Place in the
conduct of the Exchange Place Business (the "Exchange Place Software"). Exchange
Place currently licenses, or otherwise has the legal right to use, all of the
Exchange Place Software (including any upgrade, alteration or enhancement with
respect thereto), and all of the Exchange Place Software is being used in
compliance with any applicable license or other agreement.
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4.12 Real Property. Except as set forth on Schedule 4.12 hereto:
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(a) Exchange Place has a good and valid leasehold interest in all real
property (including all buildings, improvements and fixtures thereon) used in
the operation of the Exchange Place Business (the "Exchange Place Real
Property"). Exchange Place owns no real property. Except for Permitted Liens,
and for the items set forth on Schedule 4.12, there are no Liens on Exchange
Place's interest in any of the Exchange Place Real Property. Schedule 4.12 lists
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each county and state where any Exchange Place Real Property is located, or
where Exchange Place has ever leased or owned any real property.
(b) There are no parties in possession of any portion of the Exchange
Place Real Property other than Exchange Place, whether as sublessees, subtenants
at will or trespassers.
(c) To the knowledge of Exchange Place, there is no law, ordinance,
order, regulation or requirement now in existence or under active consideration
by any Governmental Entity, that would require, under the provisions of any of
the Exchange Place Leases (as hereinafter defined), any material expenditure by
Exchange Place to modify or improve any of the Exchange Place Real Property to
bring it into compliance therewith.
4.13 Leases. Except as set forth on Schedule 4.13 hereto, Exchange Place has
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furnished Parent with true and complete copies of all leases pursuant to which
Exchange Place leases, as lessor or lessee, real or personal property used in
operating the Exchange Place Business or otherwise (the "Exchange Place
Leases"). All of the Exchange Place Leases are valid, binding and enforceable
against Exchange Place and, to the knowledge of Exchange Place, against the
other parties thereto, in accordance with their respective terms, and there is
not under any such Exchange Place Lease any existing default by Exchange Place,
or, to the knowledge of Exchange Place, by any other party thereto, or any
condition or event that, with notice or lapse of time or both, would constitute
a default. Exchange Place has not received notice that the lessor of any of the
Exchange Place Leases intends to cancel, suspend or terminate such Exchange
Place Lease or to exercise or not exercise any option thereunder.
4.14 Contracts. Except as set forth on Schedule 4.14 hereto, Exchange Place
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has furnished Parent with true and complete copies of all contracts, agreements
and commitments (whether written or oral) to which Exchange Place is, directly
or indirectly, a party (in its own name or as a successor in interest), or by
which it or any of its properties or assets is otherwise bound, including any
service agreements, customer agreements, supplier agreements, agreements to lend
or borrow money, shareholder agreements, employment agreements, agreements
relating to Exchange Place Intellectual Property Rights and the like
(collectively, the "Exchange Place Contracts"); excepting only those Exchange
Place Contracts which involve less than $10,000 and are cancelable, without
penalty, on no more than 90 days' notice. The aggregate value of all payment
obligations and rights to receive payments, under agreements, contracts and
commitments (whether oral or in writing) to which Exchange Place is a party or
by which it or any of its properties or assets is otherwise bound, and that are
not listed on Schedule 4.14, is less than $50,000 (calculating such value by
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adding together the value of rights and obligations, and not by determining the
net amount thereof).
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Neither Exchange Place nor, to the knowledge of Exchange Place, any other
party to any of the Exchange Place Contracts (x) is in default under (nor does
there exist any condition that, with notice or lapse of time or both, would
cause such a default under) any of the Exchange Place Contracts, or (y) has
waived any right it may have under any of the Exchange Place Contracts, the
waiver of which would have a material adverse effect on the business, assets or
financial condition or prospects of Exchange Place. All of the Exchange Place
Contracts constitute the valid and binding obligations of Exchange Place,
enforceable in accordance with their respective terms, and, to the knowledge of
Exchange Place, of the other parties thereto.
4.15 Directors and Officers. Schedule 4.15 hereto sets forth a list, as of
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the Closing Date, of the name of each director and officer of Exchange Place and
the position(s) held by each.
4.16 Payroll Information. Exchange Place has paid all compensation,
including bonuses and other extraordinary compensation, required to be paid to
employees of Exchange Place on or prior to the date hereof other than
compensation accrued in the current pay period.
4.17 Litigation. Except as set forth on Schedule 4.17 hereto, there is no
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suit, action, claim, investigation or proceeding pending or, to the knowledge of
Exchange Place, threatened against or affecting Exchange Place or the Exchange
Place Business, nor is there any judgment, decree, injunction or order of any
applicable Governmental Entity or arbitrator outstanding against Exchange Place.
4.18 Employee Benefit Plans/Labor Relations.
(a) Except as disclosed in Schedule 4.18 hereto, there are no employee
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benefit plans, agreements or arrangements maintained by Exchange Place,
including (i) "employee benefit plans" within the meaning of Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"); (ii)
current or deferred compensation, pension, profit sharing, vacation or severance
plans or programs; or (iii) medical, hospital, accident, disability or death
benefit plans (collectively, "Exchange Place Benefit Plans"). All Exchange Place
Benefit Plans are administered in accordance with, and are in material
compliance with, all applicable laws and regulations. No default exists with
respect to the obligations of Exchange Place under any Exchange Place Benefit
Plan.
(b) Exchange Place is not a party to any collective bargaining agreement;
no collective bargaining agent has been certified as a representative of any of
the employees of Exchange Place; no representation campaign or election is now
in progress with respect to any employee of Exchange Place; and there are no
labor disputes, grievances, controversies, strikes or requests for union
representation pending, or, to the knowledge of Exchange Place, threatened,
relating to or affecting the Exchange Place Business. To the knowledge of
Exchange Place, no event has occurred that could give rise to any such dispute,
controversy, strike or request for representation.
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4.19 ERISA.
(a) All Exchange Place Benefit Plans that are subject to ERISA have been
administered in accordance with, and are in material compliance with, the
applicable provisions of ERISA. Each of the Exchange Place Benefit Plans that is
intended to meet the requirements of Section 401(a) of the Code has been
determined by the Internal Revenue Service to meet such requirements within the
meaning of such provision. No Exchange Place Benefit Plan is subject to Title IV
of ERISA or Section 412 of the Code. Exchange Place has not engaged in any
nonexempt "prohibited transactions," as such term is defined in Section 4975 of
the Code or Section 406 of ERISA, involving Exchange Place Benefit Plans that
would subject Exchange Place to the penalty or tax imposed under Section 502(i)
of ERISA or Section 4975 of the Code. Exchange Place has not engaged in any
transaction described in Section 4069 of ERISA within the last five years.
Except as disclosed in Schedule 4.19 hereto or pursuant to the terms of the
Exchange Place Benefit Plans, neither the execution and delivery hereof nor the
consummation of the transactions contemplated hereby will (i) result in any
payment (including severance, unemployment compensation or golden parachute)
becoming due to any director or other employee of Exchange Place, (ii) increase
any benefit otherwise payable under any Exchange Place Benefit Plan or (iii)
result in the acceleration of the time of payment or vesting of any such benefit
to any extent.
(b) No notice of a "reportable event," within the meaning of Section 4043
of ERISA, for which the 30-day reporting requirement has not been waived, has
been required to be filed for any Exchange Place Benefit Plan that is an
"employee pension benefit plan" within the meaning of Section 3(2) of ERISA and
that is intended to meet the requirements of Section 401(a) of the Code, or by
any entity that is considered one employer with Exchange Place under Section
4001 of ERISA or Section 414 of the Code, within the 12-month period ending on
the Closing Date. Exchange Place has not incurred any liability to the Pension
Benefit Guaranty Corporation in respect of any Exchange Place Benefit Plan that
remains unpaid.
4.20 Taxes.
(a) Exchange Place has duly and timely filed all federal, state and local
income, franchise, excise, real and personal property and other tax returns and
reports, including extensions, required to have been filed by Exchange Place on
or prior to the Closing Date. Exchange Place has duly and timely paid all taxes
and other governmental charges, and all interest and penalties with respect
thereto, required to be paid by Exchange Place (whether by way of withholding or
otherwise) to any federal, state, local or other taxing authority (except to the
extent the same are being contested in good faith, and adequate reserves
therefor have been provided in the Exchange Place Financial Statements). As of
the Closing Date, all deficiencies proposed as a result of any audit have been
paid or settled.
(b) Exchange Place is not a party to, or bound by, or otherwise in any
way obligated under, any tax sharing or similar agreement.
(c) Exchange Place has not consented to have the provisions of Section
341(f)(2) of the Code (or comparable state law provisions) apply to it, and
Exchange Place has not
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agreed or been requested to make any adjustment under Section 481(c) of the Code
by reason of a change in accounting method or otherwise.
4.21 Compliance with Applicable Laws. Exchange Place holds all material
permits, licenses, variances, exemptions, orders and approvals of all
Governmental Entities necessary to own, lease or operate all of the assets and
properties of Exchange Place, as appropriate, and to carry on the Exchange Place
Business as now conducted (the "Exchange Place Permits"). To the knowledge of
Exchange Place, Exchange Place is in material compliance with all applicable
laws, ordinances and regulations and the terms of the Exchange Place Permits.
Except as set forth on Schedule 4.21 hereto, all of the Exchange Place Permits
-------------
are fully assignable by Exchange Place in connection with the Merger.
4.22 Board of Directors/Shareholder Consent. Both the Board of Directors of
Exchange Place and the Exchange Place Shareholder have adopted and approved this
Agreement and the transactions contemplated hereby (including the Merger).
4.23 Brokers. Except as set forth on Schedule 4.23 hereto, no broker or
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finder is entitled to any broker's or finder's fee or other commission in
connection with the transactions contemplated hereby as a result of arrangements
made by or on behalf of Exchange Place.
4.24 Environmental Matters.
(a) To the knowledge of Exchange Place, no real property currently or
formerly owned or operated by Exchange Place is contaminated with any Hazardous
Substance (as hereinafter defined).
(b) Exchange Place is not a party to any litigation or administrative
proceeding nor, to the knowledge of Exchange Place, is any litigation or
administrative proceeding threatened against it, that, in either case, asserts
or alleges that Exchange Place (i) violated any Environmental Law (as
hereinafter defined); (ii) is required to clean up, remove or take remedial or
other responsive action due to the disposal, deposit, discharge, leak or other
release of any Hazardous Substance; or (iii) is required to pay all or a portion
of the cost of any past, present or future cleanup, removal or remedial or other
action that arises out of or is related to the disposal, deposit, discharge,
leak or other release of any Hazardous Substance.
(c) To the knowledge of Exchange Place, there are not now nor have there
previously been tanks or other facilities on, under, or at any real property
owned, leased, used or occupied by Exchange Place containing materials that, if
known to be present in soil or ground water, would require cleanup, removal or
other remedial action under Environmental Law.
(d) To the knowledge of Exchange Place, Exchange Place is not subject to
any judgment, order or citation related to or arising out of any Environmental
Law and has not been named or listed as a potentially responsible party by any
Governmental Entity in a matter related to or arising out of any Environmental
Law.
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(e) For purposes hereof, (i) the term "Environmental Law" means any
federal, state or local law (including statutes, regulations, ordinances, codes,
rules, judicial opinions and other governmental restrictions and requirements)
relating to the discharge of air pollutants, water pollutants, noise, odors or
process waste water, or otherwise relating to the environment or hazardous or
toxic substances; and (ii) the term "Hazardous Substance" means any toxic or
hazardous substance that is regulated by or under authority of any Environmental
Law, including any petroleum products, asbestos or polychlorinated biphenyls.
4.25 Interest in Customers, Suppliers and Competitors. Except as provided
in Schedule 4.25 hereto, no officer, director, shareholder or employee of
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Exchange Place and no family member (including a spouse, parent, sibling or
lineal descendent of any of the foregoing), has any direct or indirect material
interest in any material customer, supplier or competitor of Exchange Place, or
in any Person from whom or to whom Exchange Place leases any real or personal
property, or in any other Person with whom Exchange Place is doing business
whether directly or indirectly (including as a debtor or creditor), whether in
existence as of the Closing Date or proposed, other than the ownership of stock
of publicly traded corporations.
4.26 Accounts Receivable. All accounts, notes, contracts and other
receivables of Exchange Place (collectively, "Exchange Place Accounts
Receivable") were acquired by Exchange Place in the ordinary course of business
arising from bona fide transactions. There are no set-offs, counterclaims or
disputes asserted with respect to any Exchange Place Accounts Receivable that
would result in claims in excess of the reserve for bad debts set forth on the
Exchange Place Financial Statements and, to the knowledge of Exchange Place and
subject to such reserve, all Exchange Place Accounts Receivable are collectible
in full.
4.27 Accounts Payable. All material accounts, notes, contracts and other
amounts payable of Exchange Place (collectively, "Exchange Place Accounts
Payable") are currently within their respective terms, and are neither in
default nor otherwise past due by more than 90 days.
4.28 Insurance. Exchange Place currently maintains, in full force and
effect, all insurance policies that are required to be maintained for the
conduct of the Exchange Place Business or the ownership of Exchange Place's
property (both real and personal) (collectively, the "Exchange Place Insurance
Policies"). Exchange Place (a) is not in default regarding the provisions of
any Exchange Place Insurance Policy; (b) has paid all premiums due thereunder;
and (c) has not failed to present any notice or material claim thereunder in a
due and timely fashion.
4.29 Bankruptcy. Exchange Place has not filed a petition or request for
reorganization or protection or relief under the bankruptcy laws of the United
States or any state or territory thereof, made any general assignment for the
benefit of creditors, or consented to the appointment of a receiver or trustee,
including a custodian under the United States bankruptcy laws, whether such
receiver or trustee is appointed in a voluntary or involuntary proceeding.
4.30 Exchange Place Debt. As of the date hereof, the Exchange Place Debt is
$0.
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4.31 Accredited Investor; Investment Purpose. The Exchange Place Shareholder
represents that he (a) is an "accredited investor" as such term is defined in
Rule 501 of Regulation D promulgated by the Securities and Exchange Commission
under the Securities Act of 1933, as amended (the "Securities Act"); (b) is
acquiring the Parent Stock solely for his own account for investment and not
with a view to, or for sale in connection with, any distribution thereof; and
(c) will not, directly or indirectly, offer, transfer, sell, pledge, hypothecate
or otherwise dispose of any Parent Stock (or solicit any offers to buy, purchase
or otherwise acquire or take a pledge of any such shares) except in compliance
with the Securities Act and the rules and regulations thereunder, other
applicable laws, rules and regulations, and the Second Amended and Restated
Stockholders' Agreement of Parent, dated December 17, 1997 (the "Stockholders'
Agreement).
4.32 Restrictions on Transfer. The Exchange Place Shareholder acknowledges
that (a) the Parent Stock received by him hereunder has not been registered
under the Securities Act; (b) the Parent Stock may be required to be held
indefinitely, and he must continue to bear the economic risk of the investment
in such shares unless such shares are subsequently registered under the
Securities Act or an exemption from such registration is available; (c) there
may not be any public market for the Parent Stock in the foreseeable future; (d)
Rule 144 promulgated under the Securities Act is not presently available with
respect to sales of any securities of Parent, and such Rule is not anticipated
to be available in the foreseeable future; (e) when and if Parent Stock may be
disposed of without registration in reliance upon Rule 144, such disposition can
be made only in limited amounts and in accordance with the terms and conditions
of such Rule; (f) if the exemption afforded by Rule 144 is not available, public
sale without registration will require the availability of an exemption under
the Securities Act; (g) the Parent Stock is subject to the terms and conditions
of the Stockholders' Agreement; (h) restrictive legends shall be placed on the
certificates representing Parent Stock; and (i) a notation shall be made in the
appropriate records of Parent indicating that Parent Stock is subject to
restrictions on transfer and, if Parent should in the future engage the services
of a stock transfer agent, appropriate stop-transfer instructions will be issued
to such transfer agent with respect to Parent Stock.
4.33 Ability to Bear Risk; Access to Information; Sophistication. The
Exchange Place Shareholder represents and warrants that (a) his financial
situation is such that he can afford to bear the economic risk of holding Parent
Stock acquired by him hereunder for an indefinite period; (b) he can afford to
suffer the complete loss of such Parent Stock; (c) he has been granted the
opportunity to ask questions of, and receive answers from, representatives of
Parent concerning the terms and conditions of the Parent Stock and to obtain any
additional information that he deems necessary; (d) his knowledge and experience
in financial business matters is such that he is capable of evaluating the
merits and risk of ownership of the Parent Stock; (e) he has carefully reviewed
the terms of the Stockholders' Agreement and has evaluated the restrictions and
obligations contained therein; and (f) he (i) has reviewed the Private Placement
Memorandum of Parent dated September 8, 1998 (the "Memorandum"), (ii) has
-----------
carefully examined the Memorandum and has had an opportunity to ask questions
of, and receive answers from, representatives of Parent, and to obtain
additional information concerning Parent and its Subsidiaries (as hereinafter
defined), and (iii) does not require additional information regarding Parent or
its Subsidiaries in connection with the Merger.
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4.34 Disclosure. No statement of fact by Exchange Place or the Exchange
Place Shareholder contained herein and no written statement of fact furnished by
Exchange Place or the Exchange Place Shareholder to Parent or Sub in connection
herewith contains any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements herein or therein
contained not misleading.
4.35 Nature of Liabilities. Any unpaid legal, accounting or other fees of
Exchange Place are solely and directly related to the Merger.
4.36 Exchange Place Business. None of the services previously, currently or
to be performed by the Exchange Place Business, and none of its customer
relationships, conflicts with or breaches any agreement or understanding, oral
or written, between any Person and the Exchange Place Shareholder, including the
use of customer lists or customer contacts, solicitation of employees or
customers, trade secrets, or any confidential information to which the Exchange
Place Shareholder may have had access during his previous employment.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PARENT AND SUB
Each of Parent and Sub jointly and severally represents and warrants to
Exchange Place and the Exchange Place Shareholder, which representations and
warranties shall survive the Closing in accordance with Section 10.1 hereof, as
follows:
5.1 Organization and Qualification. Each of Parent and its Subsidiaries (as
defined in Section 10.11 hereof) is a corporation duly organized, validly
existing and in good standing under the laws of the state of its incorporation.
Each of Parent and its Subsidiaries has the requisite corporate power and
authority to carry on its business as it is now being conducted and is duly
qualified or licensed to do business, and is in good standing, in each
jurisdiction where the character of its properties owned or held under lease or
the nature of its activities makes such qualification necessary. Complete and
correct copies of the Certificates of Incorporation and Bylaws of Parent and Sub
as in effect on the date hereof are attached, respectively, to a closing
certificate and incumbency certificate, substantially in the form of Exhibit "C"
-----------
hereto ("Parent's Closing Certificate"), and to Sub's Closing Certificate.
5.2 Authority. Each of Parent and Sub has the necessary corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery hereof and the
consummation of the transactions contemplated hereby by each of Parent and Sub
have been duly and validly authorized and approved by their respective board of
directors and by Sub's sole shareholder, and no other corporate or shareholder
proceedings on the part of either Parent or Sub, or their respective board of
directors or shareholders, are necessary to authorize or approve this Agreement
or to consummate the transactions contemplated hereby. This Agreement has been
duly executed and delivered by each of Parent and Sub, and assuming the due
authorization, execution and delivery by Exchange Place and the Exchange Place
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Shareholder, constitutes the valid and binding obligation of each of Parent and
Sub, enforceable against each of Parent and Sub in accordance with its terms,
subject, in each case, to bankruptcy, insolvency, reorganization, moratorium and
similar laws of general application relating to or affecting creditors' rights
and to general principles of equity, including principles of commercial
reasonableness, good faith and fair dealing.
5.3 No Conflicts, Required Filings and Consents. Except as set forth on
Schedule 5.3 hereto, none of the execution and delivery of this Agreement by
------------
Parent or Sub, the consummation by Parent and Sub of the transactions
contemplated hereby, or compliance by Parent and Sub with any of the provisions
hereof, will:
(a) conflict with or violate the Certificate of Incorporation or Bylaws
of Parent or Sub, or the organizational documents of any other Subsidiaries;
(b) result in a violation of any statute, ordinance, rule, regulation,
order, judgment or decree applicable to Parent or its Subsidiaries, or by which
Parent, any of its Subsidiaries, or their respective properties or assets may be
bound or affected;
(c) result in a violation or breach of, or constitute a default (or an
event that, with notice or lapse of time or both, would become a default) under,
or give to others any rights of termination, amendment, acceleration or
cancellation of, any note, bond, mortgage, indenture, or any material contract,
agreement, arrangement, lease, license, permit, judgment, decree, franchise or
other instrument or obligation to which Parent or any of its Subsidiaries is a
party or by which Parent, any of its Subsidiaries or their respective properties
may be bound or affected;
(d) result in the creation of any Lien on any of the property or assets
of Parent or any of its Subsidiaries; or
(e) require any Consent of (i) any Governmental Entity (except for (x)
compliance with any applicable requirements of any applicable securities laws,
and (y) the filing of the Certificate of Merger pursuant to the DGCL and the
GBCC); or (ii) any other Person.
5.4 Litigation. Except as set forth on Schedule 5.4 hereto, there is no
------------
suit, action, claim, investigation or proceeding pending or, to the knowledge of
Parent, threatened against or affecting Parent or its Subsidiaries, nor is there
any judgment, decree, injunction or order of any applicable Governmental Entity
or arbitrator outstanding against Parent or its Subsidiaries that, either
individually or in the aggregate, would have a material adverse effect on the
assets, business or financial condition of Parent and its Subsidiaries, taken as
a whole.
5.5 Brokers. Except as disclosed on Schedule 5.5 hereto, no broker or finder
------------
is entitled to any broker's or finder's fee in connection with the transactions
contemplated hereby based upon arrangements made by or on behalf of Parent or
Sub.
5.6 Parent Stock.
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(a) As of the date hereof the authorized capital stock of Parent consists
of (i) (A) 75,000,000 shares of Class A Common Stock, $.01 par value, of which
no shares are validly issued and outstanding, and (B) 100,000,000 shares of
Class B Common Stock, $.01 par value, of which 13,778,489 shares are validly
issued and outstanding (without taking into account any shares of Parent Stock
to be issued pursuant hereto), fully paid and nonassessable; (ii) 750,000 shares
of blank check preferred stock, (A) 250,000 of which have been designated as
Class A Convertible Preferred Stock, of which 176,291 shares are validly issued
and outstanding, fully paid and nonassessable, (B) 200,000 of which have been
designated as Class B Convertible Preferred Stock, of which 98,767 shares are
validly issued and outstanding, fully paid and nonassessable, (C) 15,000 of
which have been designated as Class C Convertible Preferred Stock, of which
9,232 shares are validly issued and outstanding, fully paid and nonassessable
and (D) 50,000 of which have been designated as Class D Nonvoting Preferred
Stock, of which 35,700 shares are validly issued and outstanding, fully paid and
nonassessable. Except as set forth on Schedule 5.6 hereto, there are no options,
warrants, calls, agreements, commitments or other rights presently outstanding
that would obligate Parent to issue, deliver or sell shares of its capital
stock, or to grant, extend or enter into any such option, warrant, call,
agreement, commitment or other right. In addition to the foregoing, as of the
Closing Date, Parent has no bonds, debentures, notes or other indebtedness
issued or outstanding that have voting rights in Parent.
(b) When delivered to the Exchange Place Shareholder in accordance with
the terms hereof, the Parent Stock will be (i) duly authorized, fully paid and
nonassessable, and (ii) free and clear of all Liens other than restrictions
imposed by the Stockholders' Agreement and by federal and state securities laws.
5.7 Subsidiaries. Except as set forth on Schedule 5.7 hereto, Parent has no
------------
subsidiaries and does not otherwise own or control, directly or indirectly, any
equity interest in, or any security convertible into an equity interest in, any
Entity. Schedule 5.7 lists the name of each of the Subsidiaries of Parent, and
------------
indicates their respective jurisdictions of incorporation.
5.8 Financial Statements. Parent has heretofore furnished Exchange Place
with a true and complete copy of (a) the audited financial statements of iXL
Interactive Excellence, Inc. (n/k/a iXL, Inc.) for the years ended December 31,
1993, 1994 and 1995, and for the four month period ended April 30, 1996; (b) the
audited combined financial statements for Creative Video, Inc. (n/k/a iXL,
Inc.), Creative Video Library, Inc. and Entrepreneur Television, Inc. for the
years ended December 31, 1993, 1994 and 1995, and for the four month period
ended April 30, 1996; (c) the audited consolidated financial statements for
Parent and its Subsidiaries for the eight months ended December 31, 1996 and for
the year ended December 31, 1997; and (d) the unaudited consolidated financial
statements for Parent and its Subsidiaries for the six month period ended June
30, 1998 (all of the foregoing, collectively, "Parent Financial Statements").
The Parent Financial Statements present fairly in all material respects the
consolidated financial position, results of operations, shareholders' equity and
cash flow of Parent at the respective dates or for the respective periods to
which they apply. Except as disclosed therein, such statements and related
notes have been prepared in accordance with GAAP consistently applied throughout
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the periods involved (except, in the case of the unaudited financial statements,
for the exclusion of footnotes and normal year-end adjustments).
5.9 Undisclosed Liabilities. Except as set forth on Schedule 5.9 hereto,
------------
neither Parent nor any of its Subsidiaries has any debt, liability or obligation
of any kind, whether accrued, absolute or otherwise, including any liability or
obligation on account of taxes or any governmental charges or penalties,
interest or fines, except (a) liabilities incurred in the ordinary course of
business after June 30, 1998 that would not, whether individually or in the
aggregate, have a material adverse impact on the business or financial condition
of Parent and its Subsidiaries, taken as a whole; (b) liabilities reflected on
the Parent Financial Statements; and (c) liabilities incurred as a result of the
transactions contemplated hereby.
5.10 Compliance with Applicable Laws. Parent or its Subsidiaries hold all
material permits, licenses, variances, exemptions, orders and approvals of all
Governmental Entities necessary to own, lease or operate all of the assets and
properties of Parent and its Subsidiaries, as appropriate, and to carry on
Parent's business as now conducted (the "Parent Permits"). To the knowledge of
Parent, Parent and its Subsidiaries are in material compliance with all
applicable laws, ordinances and regulations and the terms of the Parent Permits.
5.11 Board of Directors/Shareholder Consent. The board of directors of
Parent, and both the board of directors and shareholder of Sub, have, by
unanimous written consent or other action, adopted and approved this Agreement
and the transactions contemplated hereby (including the Merger).
5.12 Bankruptcy. Neither Parent nor any of its Subsidiaries has filed a
petition or request for reorganization or protection or relief under the
bankruptcy laws of the United States or any state or territory thereof, made any
general assignment for the benefit of creditors, or consented to the appointment
of a receiver or trustee, including a custodian under the United States
bankruptcy laws, whether such receiver or trustee is appointed in a voluntary or
involuntary proceeding.
5.13 Absence of Changes. Except as provided in Schedule 5.13 hereto, since
-------------
June 30, 1998, there has not been (a) any transaction, commitment, dispute or
other event or condition (financial or otherwise) of any character (whether or
not in the ordinary course of business) individually or in the aggregate that
has had, or would reasonably be expected to have, a material adverse effect on
the business, properties, assets, condition (financial or otherwise),
liabilities or results of operations of Parent and its Subsidiaries, taken as a
whole; (b) any damage, destruction or loss, whether or not covered by insurance,
which has had, or would reasonably be expected to have, a material adverse
effect on the business, properties, assets, condition (financial or otherwise),
liabilities or results of operations of Parent and its Subsidiaries, taken as a
whole; (c) any entry into any commitment or transaction material to Parent and
its Subsidiaries, taken as a whole (including any borrowing or sale of assets)
except in the ordinary course of business consistent with past practice; (d) any
declaration, setting aside or payment of any dividend or distribution (whether
in cash, stock or property) with respect to Parent's capital stock; (e) any
material change in Parent's accounting principles, practices or methods; (f) any
split,
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combination or reclassification of any of Parent's capital stock, or the
issuance or authorization of any issuance of any other securities in respect of,
in lieu of or in substitution for, shares of Parent's capital stock; or (g) any
agreement (whether or not in writing), arrangement or understanding to do any of
the foregoing.
5.14 Taxes. Parent and its Subsidiaries have duly and timely filed all
federal, state and local income, franchise, excise, real and personal property
and other tax returns and reports, including extensions, required to have been
filed by Parent and its Subsidiaries on or prior to the Closing Date. Parent
and its Subsidiaries have duly and timely paid all taxes and other governmental
charges, and all interest and penalties with respect thereto, required to be
paid by Parent and its Subsidiaries (whether by way of withholding or otherwise)
to any federal, state, local or other taxing authority (except to the extent the
same are being contested in good faith, and adequate reserves therefor have been
provided in the applicable Parent Financial Statement). As of the Closing Date,
all deficiencies proposed as a result of any audits have been paid or settled.
5.15 Disclosure. No statement of fact by Parent or Sub contained herein and
no written statement of fact furnished or to be furnished by Parent or Sub to
Exchange Place in connection herewith contains or will contain any untrue
statement of a material fact or omits or will omit to state a material fact
necessary in order to make the statements herein or therein contained not
misleading.
ARTICLE VI
ADDITIONAL AGREEMENTS
6.1 Conduct of Business by Exchange Place Pending the Merger. From and after
the date hereof, prior to the Effective Time, except as contemplated hereby,
unless Parent shall otherwise agree in writing, Exchange Place shall carry on
its business in the usual, regular and ordinary course in substantially the same
manner as heretofore conducted, use reasonable efforts to preserve intact its
present business organization, keep available the services of its employees and
preserve its relationships with customers, suppliers, licensors, licensees,
distributors and others having business dealings with Exchange Place to the end
that its goodwill and on-going businesses shall not be impaired in any material
respect at the Effective Time. Without limiting the generality of the
foregoing, and except as contemplated hereby, unless Parent shall otherwise
agree in writing, prior to the Effective Time, Exchange Place shall not,
directly or indirectly:
(a) (i) declare, set aside, or pay any dividend on, or make any other
distribution in respect of, any of its capital stock, (ii) split, combine or
reclassify any of its capital stock, or issue or authorize the issuance of any
other securities in respect of, in lieu of or in substitution for, shares of its
capital stock, or (iii) purchase, redeem or otherwise acquire, any share of
capital stock of Exchange Place or any other equity security thereof or any
right, warrant, or option to acquire any such share or other security;
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(b) issue, deliver, sell, pledge or otherwise encumber any share of its
capital stock, any other voting security issued by Exchange Place or any
security convertible into, or any right, warrant or option to acquire any such
share or voting security;
(c) amend its Articles of Incorporation, Bylaws or other comparable
organizational documents;
(d) acquire or agree to acquire (i) by merging or consolidating with, or
by purchasing a substantial portion of the assets of, or by any other manner,
any business or any Entity or division thereof, or (ii) any assets that are
material, individually or in the aggregate, to Exchange Place;
(e) subject to a Lien or sell, lease or otherwise dispose of any of its
properties or assets;
(f) incur any indebtedness for borrowed money or guarantee any such
indebtedness of another Person or issue or sell any debt security of Exchange
Place, guarantee any debt security of another Person or enter into any "keep
well" or other agreement to maintain the financial condition of another Person,
make any loan, advance or capital contribution to, or investment in, any other
Person, or settle or compromise any material claim or litigation; or
(g) authorize any of, or commit or agree to take any of, the foregoing
actions.
6.2 Access to Information. From the date hereof through the Effective Time,
Exchange Place shall afford to Parent and Parent's accountants, counsel and
other representatives reasonable access during normal business hours (and at
such other times as the parties may mutually agree) upon reasonable prior notice
and approval of Exchange Place, which shall not be unreasonably withheld, to its
properties, books, contracts, commitments, records and personnel and, during
such period, shall furnish promptly to Parent all information concerning its
business, properties and personnel as Parent may reasonably request. Parent and
its accountants, counsel and other representatives shall, in the exercise of the
rights described in this Section 6.2, not unduly interfere with the operation of
the business of Exchange Place.
6.3 Filings; Tax Elections. Exchange Place shall promptly provide Parent
with copies of all filings made by Exchange Place with any Governmental Entity
in connection herewith and the transactions contemplated hereby. Exchange Place
shall, before settling or compromising any material income tax liability of
Exchange Place, consult with Parent and its advisors as to the positions and
elections that will be taken or made with respect to such matter.
6.4 Public Announcements. The parties agree that, except as may otherwise be
required to comply with applicable laws and regulations (including applicable
securities laws) or to obtain consents required hereunder, public disclosure of
the transactions contemplated hereby shall be made only upon or after the
consummation of the Merger. Any such disclosure shall be coordinated by Parent,
and the Exchange Place Shareholder shall not make any such disclosure without
the prior written consent of Parent.
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6.5 Transfer and Gains Taxes and Certain Other Taxes and Expenses. Parent
agrees that, to the extent it is legally able to do so, the Surviving
Corporation will pay all real property transfer, gains and other similar taxes
and all documentary stamps, filing fees, recording fees and sales and use taxes,
if any, and any penalties or interest with respect thereto, payable in
connection with consummation of the Merger.
6.6 Further Assurances. From time to time after the Effective Time, upon the
reasonable request of any party hereto, the other party or parties hereto shall
execute and deliver or cause to be executed and delivered such further
instruments, and take such further action, as the requesting party may
reasonably request in order to effectuate fully the purposes, terms and
conditions hereof.
ARTICLE VII
CONDITIONS PRECEDENT
7.1 Conditions to Obligation of Exchange Place and the Exchange Place
Shareholder to Effect the Merger. The obligations of Exchange Place and the
Exchange Place Shareholder to effect the Merger shall be subject to the
fulfillment at or prior to the Effective Time of the following conditions:
(a) Parent and Sub shall have performed in all material respects their
respective agreements contained herein required to be performed at or prior to
the Effective Time, and the representations and warranties of Parent and Sub
contained herein shall be true when made and (except for representations and
warranties made as of a specified date, which need only be true as of such date)
at and as of the Effective Time as if made at and as of such time, except as
contemplated hereby;
(b) (i) the appropriate officers of Parent shall have executed and
delivered to Exchange Place at the Closing, Parent's Closing Certificate, and
(ii) the appropriate officers of Sub shall have executed and delivered to
Exchange Place at the Closing, Sub's Closing Certificate;
(c) Parent shall have obtained all of the Consents, if any, listed on
Schedule 7.1(c) hereto;
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(d) Exchange Place shall have received corporate certificates of good
standing for Parent and Sub, and a copy of the Certificate of Incorporation for
Parent and Sub, respectively, both as certified by the Secretary of State of
Delaware; and
(e) there shall have been delivered to the Exchange Place Shareholder at
the Closing, duly executed by Parent, an Agreement to be Bound to the
Registration Rights Agreement of Parent, dated as of Closing Date (the
"Agreement to be Bound to the Registration Rights Agreement"), in the form of
Exhibit "D" hereto.
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7.2 Conditions to Obligations of Parent and Sub to Effect the Merger. The
obligations of Parent and Sub to effect the Merger shall be subject to the
fulfillment, at or prior to the Effective Time, of the following conditions:
(a) Exchange Place and the Exchange Place Shareholder shall have
performed in all material respects their respective agreements contained herein
required to be performed at or prior to the Effective Time, and the
representations and warranties of Exchange Place and the Exchange Place
Shareholder contained herein shall be true when made and (except for
representations and warranties made as of a specified date, which need only be
true as of such date) at and as of the Effective Time as if made at and as of
such time, except as contemplated hereby;
(b) the appropriate officers of Exchange Place shall have executed and
delivered to Parent at the Closing, Exchange Place's Closing Certificate;
(c) Exchange Place and the Exchange Place Shareholder shall have obtained
or caused to be obtained all of the Consents, if any, listed on Schedule 7.2(c)
--------------
hereto;
(d) there shall have been delivered to Parent at the Closing, duly
executed by the Exchange Place Shareholder, (i) an Agreement to be Bound to the
Stockholders' Agreement, in the form of Exhibit "E" hereto, substantially in the
-----------
form attached thereto; and (ii) an Agreement to be Bound to the Registration
Rights Agreement;
(e) Parent shall have received a corporate certificate of existence for
Exchange Place, as certified by the Secretary of State of Georgia, and a copy of
the Articles of Incorporation of Exchange Place;
(f) as of the date three business days prior to the Closing Date the
Exchange Place Debt shall be no greater than $0;
(g) Parent shall have received from Exchange Place or the Exchange Place
Shareholder, as the case may be, such other documents as Parent's counsel shall
have reasonably requested, in form and substance reasonably satisfactory to
Parent's counsel; and
(h) Parent shall have received evidence satisfactory to it that at the
Closing the assets and properties used in the Exchange Place Business are free
and clear of all Liens other than Permitted Liens (as hereinafter defined), and
that the Exchange Place Shareholder is an accredited investor in accordance with
Section 4.31 hereof.
-22-
ARTICLE VIII
INDEMNIFICATION
8.1 Indemnification by Parent.
(a) Parent shall indemnify and hold the Exchange Place Shareholder and
Exchange Place's directors, officers and employees (collectively, the "Exchange
Place Indemnified Parties") harmless from and against, and agree promptly to
defend each of the Exchange Place Indemnified Parties from and reimburse each of
the Exchange Place Indemnified Parties for, any and all losses, damages, costs,
expenses, liabilities, obligations and claims of any kind (including reasonable
attorney fees and other legal costs and expenses) (collectively, a "Exchange
Place Loss") that any of the Exchange Place Indemnified Parties may at any time
suffer or incur, or become subject to, as a result of or in connection with:
(i) any breach or inaccuracy of any of the representations and
warranties made by Parent or Sub in or pursuant hereto, or in any instrument,
certificate or affidavit delivered by Parent or Sub at the Closing in accordance
with the provisions hereof;
(ii) any failure by Parent or Sub to carry out, perform, satisfy and
discharge any of its respective covenants, agreements, undertakings, liabilities
or obligations hereunder or under any of the documents and materials delivered
by Parent pursuant hereto; and
(iii) any suit, action or other proceeding arising out of, or in any
way related to, any of the matters referred to in this Section 8.1(a).
(b) Notwithstanding any other provision hereof to the contrary, Parent
shall not have any liability under Section 8.1(a)(i) above (i) unless the
aggregate of all Exchange Place Losses for which Parent would be liable but for
this sentence exceeds, on a cumulative basis, an amount equal to $50,000, and
then only to the extent of such excess, (ii) for amounts in excess of $2,750,000
in the aggregate, and (iii) unless the Exchange Place Shareholder has asserted a
claim with respect to the matters set forth in Section 8.1(a)(i), or 8.1(a)(iii)
to the extent applicable to Section 8.1(a)(i), within two years of the Effective
Time. Notwithstanding any implication to the contrary contained herein, the
parties acknowledge and agree that a decrease in the value of Parent Stock would
not, by itself, constitute a Exchange Place Loss, unless and to the extent a
decrease in the value of Parent Stock has been demonstrated to be as a result of
any event described in Sections 8.1(a)(i), (ii) or (iii) above.
8.2 Indemnification by the Exchange Place Shareholder.
(a) The Exchange Place Shareholder shall indemnify and hold Parent, Sub,
Surviving Corporation and their respective shareholders, directors, officers and
employees (collectively, the "Parent Indemnified Parties") harmless from and
against, and agree to defend promptly each of the Parent Indemnified Parties
from and reimburse each of the Parent Indemnified
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Parties for, any and all losses, damages, costs, expenses, liabilities,
obligations and claims of any kind (including reasonable attorneys' fees and
other legal costs and expenses) (collectively, a "Parent Loss") that any of the
Parent Indemnified Parties may at any time suffer or incur, or become subject
to, as a result of or in connection with:
(i) any breach or inaccuracy of any of the representations and
warranties made by Exchange Place or the Exchange Place Shareholder in or
pursuant hereto, or in any instrument certificate or affidavit delivered by any
of the same at the Closing in accordance with the provisions hereof;
(ii) any failure by Exchange Place or the Exchange Place Shareholder
to carry out, perform, satisfy and discharge any of their respective covenants,
agreements, undertakings, liabilities or obligations hereunder or under any of
the documents and materials delivered by Exchange Place pursuant hereto; and
(iii) any suit, action or other proceeding arising out of,
or in any way related to, any of the matters referred to in this Section 8.2.
(b) Notwithstanding the above, the Exchange Place Shareholder shall
not have any liability under Section 8.2(a)(i) above (i) unless the aggregate of
all Parent Losses for which the Exchange Place Shareholder would be liable but
for this sentence exceeds, on a cumulative basis, an amount equal to $50,000,
and then only to the extent of such excess, (ii) for amounts in excess of
$2,750,000 in the aggregate, and (iii) unless Parent has asserted a claim with
respect to the matters set forth in Sections 8.2(a)(i), or 8.2(a)(iii) to the
extent applicable to Section 8.2(a)(i) within two years of the Effective Time,
except with respect to the matters arising under Sections 4.18, 4.19, 4.20 or
4.24 hereof, in which event Parent must have asserted a claim within the
applicable statute of limitations. Notwithstanding any implication to the
contrary contained herein, the parties acknowledge and agree that a decrease in
the value of Parent Stock would not, by itself, constitute a Parent Loss, unless
and to the extent a decrease in the value of Parent Stock has been demonstrated
to be as a result of any event described in Sections 8.2(a)(i), (ii) or (iii)
above.
8.3 Notification of Claims; Election to Defend
(a) A party entitled to be indemnified pursuant to Section 8.1 or 8.2
hereof, as the case may be (the "Indemnified Party"), shall notify the party
liable for such indemnification (the "Indemnifying Party") in writing of any
claim or demand (a "Claim") that the Indemnified Party has determined has given
or could give rise to a right of indemnification hereunder. Subject to the
Indemnifying Party's right to defend in good faith third party claims as
hereinafter provided, the Indemnifying Party shall satisfy its obligations under
this Article VIII within 30 days after the receipt of written notice thereof
from the Indemnified Party. Any amounts paid thereafter shall include interest
thereon for the period commencing at the end of such 30-day period and ending on
the actual date of payment, at a rate of 15% per annum, or, if lower, at the
highest rate of interest permitted by applicable law at the time of such
payment.
-24-
(b) If the Indemnified Party shall notify the Indemnifying Party of any
Claim pursuant to Section 8.3(a) hereof, and if such Claim relates to a Claim
asserted by a third party against the Indemnified Party that the Indemnifying
Party acknowledges is a Claim for which it must indemnify or hold harmless the
Indemnified Party under Section 8.1 or 8.2 hereof, as the case may be, the
Indemnifying Party shall have the right, at its sole cost and expense, to employ
counsel of its own choosing to defend any such Claim asserted against the
Indemnified Party. Notwithstanding anything to the contrary in the preceding
sentence, if the Indemnified Party (i) reasonably believes that its interests
with respect to a Claim (or any material portion thereof) are in conflict with
the interests of the Indemnifying Party with respect to such Claim (or portion
thereof), and (ii) promptly notifies the Indemnifying Party, in writing, of the
nature of such conflict, then the Indemnified Party shall be entitled to choose,
at the sole cost and expense of the Indemnifying Party, independent counsel to
defend such Claim (or the conflicting portion thereof). The Indemnified Party
shall have the right to participate in the defense of any Claim at its own
expense (except to the extent provided in the preceding sentence), but the
Indemnifying Party shall retain control over such litigation (except as provided
in the preceding sentence). The Indemnifying Party shall notify the Indemnified
Party in writing, as promptly as possible (but in any case before the due date
for the answer or response to a Claim) after receipt of the notice of Claim
given by the Indemnified Party to the Indemnifying Party under Section 8.3(a)
hereof, of its election to defend in good faith any such third party Claim. For
so long as the Indemnifying Party is defending in good faith any such Claim
asserted by a third party against the Indemnified Party, the Indemnified Party
shall not settle or compromise such Claim without the prior written consent of
the Indemnifying Party. The Indemnified Party shall cooperate with the
Indemnifying Party in connection with any such defense and shall make available
to the Indemnifying Party or its agents all records and other materials in the
Indemnified Party's possession reasonably required by it for its use in
contesting any third party Claim; provided, however, that the Indemnifying Party
shall have agreed, in writing, to keep such records and other materials
confidential except (i) to the extent required for defense of the relevant
Claim, or (ii) as required by law or court order. Whether or not the
Indemnifying Party elects to defend any such Claim, the Indemnified Party shall
have no obligations to do so. Within 30 days after a final determination
(including a settlement) has been reached with respect to any Claim contested
pursuant to this Section 8.3(b), the Indemnifying Party shall satisfy its
obligations hereunder with respect thereto. Any amount paid thereafter shall
include interest thereon for the period commencing at the end of such 30-day
period and ending on the actual date of payment, at a rate of 15% per annum, or,
if lower, at the highest rate of interest permitted by applicable law at the
time of such payment.
ARTICLE IX
TERMINATION, AMENDMENT AND WAIVER
9.1 Termination. This Merger Agreement may be terminated at any time prior
to the Effective Time:
(a) by mutual written consent of Parent and Exchange Place;
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(b) by Exchange Place, upon a material breach hereof on the part of
Parent or Sub which has not been cured and which would cause any condition set
forth in Section 7.1 hereof to be incapable of being satisfied by September 15,
1998;
(c) by Parent, upon a material breach hereof on the part of Exchange
Place or the Exchange Place Shareholder which has not been cured and which would
cause any condition set forth in Section 7.2 hereof to be incapable of being
satisfied by September 15, 1998;
(d) by Parent or Exchange Place if any court of competent jurisdiction
shall have issued, enacted, entered, promulgated or enforced any order,
judgment, decree, injunction or ruling which restrains, enjoins or otherwise
prohibits the Merger and such order, judgment, decree, injunction or ruling
shall have become final and nonappealable; or
(e) by either Parent or Exchange Place if the Merger shall not have been
consummated on or before September 15, 1998 (provided the terminating party is
not otherwise in material breach of its representations, warranties or
obligations hereunder).
9.2 Fees and Expenses.
(a) If the Merger is consummated, all costs and expenses incurred in
connection herewith and the transactions contemplated hereby shall be paid by
the Surviving Corporation; provided, however, that the Exchange Place
Shareholder shall pay all fees and expenses (including agents, counsel and other
advisors) of Exchange Place and himself.
(b) If the Merger is not consummated for a reason other than the willful
and material breach hereof by a party, all fees and expenses incurred in
connection herewith and the transactions contemplated hereby shall be paid by
the party incurring such fees or expenses.
(c) If the Merger is not consummated because of a willful and material
breach hereof by any party, the nonbreaching party or parties shall be entitled
to pursue all legal and equitable remedies against the breaching party for such
breach including specific performance and all fees and expenses incurred by the
nonbreaching party or parties in connection with enforcing its or their rights
hereunder with respect to such breach shall be paid by the breaching party.
9.3 Amendment. This Merger Agreement may be amended by Parent, Sub, Exchange
Place and the Exchange Place Shareholder at any time before or after approval
hereof by the Exchange Place Shareholder, but, after such approval, no amendment
shall be made which (i) changes the form or decreases the amount of the
consideration to be received in the Merger, (ii) in any way materially adversely
affects the rights of the Exchange Place Shareholder, or (iii) under applicable
law would require approval of the Exchange Place Shareholder, in any such case
referred to in clauses (i), (ii) and (iii), without the further approval of the
Exchange Place Shareholder. This Agreement may not be amended except by an
instrument in writing signed on behalf of the parties hereto, provided that
after the Effective Time, any such amendment must be signed by the Exchange
Place Shareholder.
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9.4 Waiver. At any time prior to the Effective Time, the parties hereto may,
to the extent permitted by applicable law, (i) extend the time for the
performance of any of the obligations or other acts of any other party hereto,
(ii) waive any inaccuracies in the representations and warranties by any other
party contained herein or in any documents delivered by any other party pursuant
hereto and (iii) waive compliance with any of the agreements of any other party
or with any conditions to its own obligations contained herein. Any agreement
on the part of a party hereto to any such extension or waiver shall be valid
only if set forth in an instrument in writing signed on behalf of such party.
ARTICLE X
GENERAL PROVISIONS
10.1 Survival; Recourse. None of the agreements contained herein shall
survive the Merger, except that (i) the agreements contained in Article III
hereof, the covenants contained in Article VI hereof, the obligations to
indemnify contained in Article VIII hereof and the agreements of the Surviving
Corporation referred to in Sections 10.9 and 10.10 hereof, shall survive the
Merger indefinitely (except to the extent a shorter period of time is explicitly
specified therein) and (ii) the representations and warranties made in Articles
IV and V hereof shall survive the Merger, and shall survive any independent
investigation by the parties, and any dissolution, merger or consolidation of
Exchange Place or Parent, and shall bind the legal representatives, assigns and
successors of Exchange Place, the Exchange Place Shareholder and Parent, for a
period of two years after the Effective Time (other than the representations and
warranties contained in Sections 4.18, 4.19, 4.20 and 4.24 hereof, which shall
survive for the applicable statute of limitations).
10.2 Notices. All notices or other communications under this Agreement shall
be in writing and shall be given (and shall be deemed to have been duly given
upon receipt) by delivery in Person, by telecopy (with confirmation of receipt),
or by registered or certified mail, postage prepaid, return receipt requested,
addressed as follows:
If to Exchange Place : Exchange Place Solutions, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇, President
Telephone: 404/▇▇▇-▇▇▇▇
If to the Exchange Place To the address listed under the signature
Shareholder: line of the Exchange Place Shareholder
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If to Parent or Sub: IXL Holdings, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇., ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy: 404/267-3801
Telephone: 404/▇▇▇-▇▇▇▇
With copies to: ▇▇▇▇▇▇ & ▇▇▇▇▇▇, A Professional Corporation
One Buckhead Plaza
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇. ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Telecopy: 404/233-5824
Telephone: 404/▇▇▇-▇▇▇▇
and to: ▇▇▇▇▇ & Company
▇▇▇ ▇▇▇▇ ▇▇▇., ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇, Esq.
Telecopy: 212/223-2379
Telephone: 212/▇▇▇-▇▇▇▇
or to such other address as any party may have furnished to the other parties in
writing in accordance with this Section.
10.3 Entire Agreement. The exhibits and schedules hereto are incorporated
herein by reference. This Agreement and the documents, schedules and
instruments referred to herein and to be delivered pursuant hereto constitute
the entire agreement between the parties pertaining to the subject matter
hereof, and supersede all other prior agreements and understandings, both
written and oral, among the parties, or any of them, with respect to the subject
matter hereof, except for the non-disclosure letter agreement between Parent and
Exchange Place dated as of June 10, 1998. There are no other representations or
warranties, whether written or oral, between the parties in connection the
subject matter hereof, except as expressly set forth herein.
10.4 Assignments; Parties in Interest. Neither this Agreement nor any of the
rights, interests or obligations hereunder may be assigned by any of the parties
hereto (whether by operation of law or otherwise) without the prior written
consent of the other parties, except that the rights, interests, and obligations
of Sub hereunder may be assigned to any direct wholly owned Delaware subsidiary
of Parent without such prior consent. Subject to the preceding sentence, this
Agreement shall be binding upon and inure solely to the benefit of each party
hereto, and nothing herein, express or implied, is intended to or shall confer
upon any Person not a party hereto any right, benefit or remedy of any nature
whatsoever under or by reason hereof, except as otherwise provided herein.
-28-
10.5 Governing Law. This Agreement, except to the extent that the DGCL is
mandatorily applicable to the Merger, or to the rights of the Exchange Place
Shareholder or the other parties hereto with respect to the Merger, shall be
governed in all respects by the laws of the State of Georgia (without giving
effect to the provisions thereof relating to conflicts of law).
10.6 Headings. The descriptive headings herein are inserted for convenience
of reference only and are not intended to be part of or to affect the meaning or
interpretation hereof.
10.7 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which taken
together shall constitute a single agreement.
10.8 Severability. If any term or other provision hereof is invalid, illegal
or incapable of being enforced by any rule of law or public policy, all other
conditions and provisions hereof shall nevertheless remain in full force and
effect so long as the economics or legal substance of the transactions
contemplated hereby are not affected in any manner materially adverse to any
party. Upon determination that any term or other provision hereof is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible to the fullest extent permitted by applicable law
in an acceptable manner to the end that the transactions contemplated hereby are
fulfilled to the extent possible.
10.9 Post-Closing Access. For a period of three years after the Closing
Date, the Exchange Place Shareholder and his agents and representatives shall
have reasonable access to the books and records of the Exchange Place Business.
10.10 Post-Closing Notice. To the extent the Surviving Corporation receives
written notice of any event or circumstance that materially affects the Exchange
Place Shareholder, the Surviving Corporation shall promptly notify the Exchange
Place Shareholder of such matter, information, or event and shall provide them
with copies of all relevant documentation or correspondence in connection
thereto.
10.11 Certain Definitions. As used herein:
(a) the term "Permitted Liens" shall mean (a) Liens for taxes,
assessments or other governmental charges or levies not yet due; (b) statutory
Liens of landlords and Liens of carriers, warehousemen, mechanics, materialmen
and other Liens imposed by law created in the ordinary course of business for
amounts not yet due; (c) Liens (other than any Lien imposed by ERISA) incurred
or deposits made in the ordinary course of business in connection with worker's
compensation, unemployment insurance or other types of social security; (d)
minor defects of title, easements, rights-of-way, restrictions and other similar
charges or encumbrances not materially detracting from the value of the Exchange
Place Real Property or interfering with the ordinary conduct of any of the
Exchange Place Business; and (e) those Liens listed on Schedule 10.11 hereto;
--------------
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(b) (i) any representation or warranty stated to be made "to the
knowledge" of a party shall refer to such party's knowledge following reasonable
inquiry as to the matter in question; and (ii) any representation or warranty
stated to be made "to the knowledge of Exchange Place" shall refer to the
knowledge, subject to clause (i) above, of the Exchange Place Shareholder; and
(c) the term "Subsidiary" or "Subsidiaries" means any Entity of which
Parent (either alone or through or together with any other Subsidiary) owns,
directly or indirectly, stock or other equity interests the holders of which are
entitled to more than 50% of the vote for the election of the board of directors
or other governing body of such Entity (including Sub); provided, however, that
with respect to the Parent, the terms "Subsidiary" and "Subsidiaries" shall not
include Exchange Place or University Netcasting, Inc.
- SIGNATURES ON THE FOLLOWING PAGE -
-30-
IN WITNESS WHEREOF, Parent, Sub and Exchange Place have caused this
Agreement to be signed and delivered by their respective duly authorized
officers, and the Exchange Place Shareholder has signed and delivered this
Agreement, all as of the date first written above.
"Exchange Place"
Exchange Place Solutions, Inc., a Georgia corporation
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
---------------------------------------
Title: President
"Parent"
IXL Holdings, Inc., a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Title: Executive Vice President
"Sub"
iXL, Inc., a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Title: Executive Vice President
"Exchange Place Shareholder"
/s/ ▇▇▇▇▇▇ ▇▇▇▇
------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
-31-
EXHIBITS
--------
Sub's Closing Certificate........................................... Exhibit A
Exchange Place's Closing Certificate................................ Exhibit B
Parent's Closing Certificate........................................ Exhibit C
Agreement to be Bound to the Registration Rights Agreement.......... Exhibit D
Agreement to be Bound to the Stockholders' Agreement................ Exhibit E
SCHEDULE 4.3(a)
---------------
Holders of Exchange Place Stock and Exchange Place Stock Rights
SCHEDULE 4.3(b)
---------------
Liens on Stock
SCHEDULE 4.5
------------
Consents; Required Filings
SCHEDULE 4.7
------------
Exceptions to Absence of Changes of Exchange Place
SCHEDULE 4.8
------------
Undisclosed Liabilities of Exchange Place
SCHEDULE 4.9
------------
Exceptions to Title to Properties of Exchange Place
SCHEDULE 4.10
-------------
Exceptions to the Good Condition of the Equipment of Exchange Place
SCHEDULE 4.12
-------------
Liens on and Location of Real Property of Exchange Place
SCHEDULE 4.13
-------------
Exceptions to Leases of Exchange Place
SCHEDULE 4.14
-------------
Exceptions to Contracts of Exchange Place
SCHEDULE 4.15
-------------
Directors and Officers of Exchange Place
SCHEDULE 4.17
-------------
Litigation
SCHEDULE 4.18
-------------
Employee Benefit Plans/Labor Relations of Exchange Place
SCHEDULE 4.19
-------------
ERISA Issues of Exchange Place
SCHEDULE 4.21
-------------
Exceptions to the Assignability of Exchange Place Permits
SCHEDULE 4.23
-------------
Exchange Place Brokers
SCHEDULE 4.25
-------------
Interest in Customers, Suppliers, Competitors
SCHEDULE 5.3
------------
Conflicts, Required Filings and Consents of Parent and Sub
SCHEDULE 5.4
------------
Parent or Sub Litigation
SCHEDULE 5.5
------------
Parent and Sub Brokers
SCHEDULE 5.6
------------
Outstanding Obligations of Parent to issue options, warrants or other rights in
parent stock.
SCHEDULE 5.7
------------
Subsidiaries of Parent
SCHEDULE 5.9
------------
Parent Undisclosed Liabilities
SCHEDULE 5.13
-------------
Exceptions to Absence of Changes of Parent and Sub
SCHEDULE 7.1(c)
---------------
Parent Consents
SCHEDULE 7.2(c)
---------------
Exchange Place Consents
SCHEDULE 10.11
--------------
Permitted Liens of Exchange Place