SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) - June 21, 1999
MARKET GUIDE INC.
(Exact name of registrant as specified in its charter)
New York 291525-NY 11-2646081
(State or other jurisdiction (Commission File (IRS Employer
of incorporation) Number) Identification No.)
2001 Marcus Avenue, Suite South 200
Lake Success, New York 11042
(Address of principal executive offices) Zip Code
Registrant's telephone number, including area code: (516) 327-2400
--------------
Item 5. Other Events.
On June 23, 1999, Market Guide, Inc., a New York corporation (the
"Registrant"), Multex.com, Inc., a Delaware corporation ("Multex"), and Merengue
Acquisition Corp., a New York corporation and a wholly owned subsidiary of
Multex ("Merengue"), executed an Agreement and Plan of Merger and
Reorganization, dated as of June 23, 1999 (the "Merger Agreement"), pursuant to
which Merengue will merge with and into the Registrant and the Registrant will
continue as a wholly owned subsidiary of Multex (the "Merger"). Under the terms
of the Merger Agreement, each outstanding share of Registrant common stock will
be exchanged for one share of Multex common stock. The transaction will be
accounted for as a pooling of interests and will qualify as a tax-free
reorganization. The Merger is expected to close in the fall of 1999 subject to
various conditions, including the expiration or termination of any applicable
waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976,
as amended, and approval by the stockholders of each of the Registrant and
Multex. The foregoing description of the Merger and the Merger Agreement is
qualified in its entirety by reference to the Merger Agreement, a copy of which
is attached hereto as Exhibit 2.1 and incorporated herein by reference. A copy
of the joint press release issued by the Registrant and Multex on June 23, 1999
with respect to the Merger is attached hereto as Exhibit 99.1 and is
incorporated herein by reference.
On June 21, 1999, the Bylaws of the Registrant were amended and
restated to provide, among other things, that the offices of Chairman of the
Board of Directors and President of the Company may be held by different
individuals. A copy of the Amended and Restated Bylaws is attached hereto as
Exhibit 3.1 and is incorporated herein by reference.
Item 7. Financial Statements and Exhibits.
(a) Financial Statements of business acquired.
None.
(b) Pro Forma financial information.
None.
(c) Exhibits.
2.1 Agreement and Plan of Merger and Reorganization, dated
as of June 23, 1999, by and among Market Guide Inc.,
Multex.com, Inc. and Merengue Acquisition Corp.
3.1 Amended and Restated Bylaws of Market Guide Inc.,
dated as of June 21, 1999.
99.1 Press Release issued by Market Guide Inc. and
Multex.com, Inc. on June 23, 1999.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
MARKET GUIDE INC.
Dated: June 29, 1999 By: /s/ Homi M. Byramji
---------------------------------------
Name: Homi M. Byramji
Title: President and
Chief Executive Officer
<PAGE>
Exhibit Index
Exhibit No. Description
2.1 Agreement and Plan of Merger and Reorganization, dated as of June 23, 1999,
by and among Market Guide Inc., Multex.com, Inc. and Merengue Acquisition
Corp.
3.1 Amended and Restated Bylaws of Market Guide Inc., dated as of June 21, 1999
99.1 Press Release issued by Market Guide Inc. and Multex.com, Inc. on
June 23, 1999.
<PAGE>
EXHIBIT 2.1
June 29, 1999
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Market Guide Inc.
Current Report on Form 8-K
Ladies and Gentlemen:
On behalf of Market Guide Inc., we hereby submit via electronic
transmission, pursuant to the Securities Exchange Act of 1934, as amended, one
complete copy of the Company's Current Report on Form 8-K, together with the
exhibits thereto.
Should you have any questions concerning the foregoing or require any
additional information, please contact the undersigned at (516) 327-2400.
Very truly yours,
/s/
Enclosures
cc: Robert B. Stebbins
Steven A. Seidman
<PAGE>
AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
among
MULTEX.COM, INC.
MERENGUE ACQUISITION CORP.
and
MARKET GUIDE INC.
Dated as of June 23, 1999
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
<S> <C> <C>
ARTICLE I. DEFINITIONS...........................................................................................2
SECTION 1.1. Certain Defined Terms........................................................................2
ARTICLE II. THE MERGER...........................................................................................6
SECTION 2.1. The Merger...................................................................................6
SECTION 2.2. Closing......................................................................................6
SECTION 2.3. Effective Time...............................................................................6
SECTION 2.4. Effect of the Merger.........................................................................7
SECTION 2.5. Certificate of Incorporation; Bylaws; Directors and Officers of Surviving Corporation........7
ARTICLE III. CONVERSION OF SECURITIES; EXCHANGE OF CERTIFICATES..................................................7
SECTION 3.1. Conversation of Shares.......................................................................7
SECTION 3.2. Exchange of Shares Other than Dissenting Shares and Treasury Shares..........................8
SECTION 3.3. Stock Transfer Books........................................................................10
SECTION 3.4. No Fractional Share Certificates............................................................10
SECTION 3.5. Options to Purchase Company Common Stock....................................................11
SECTION 3.6. Certain Adjustments.........................................................................11
SECTION 3.7. Dissenters' Rights..........................................................................12
SECTION 3.8. Lost, Stolen or Destroyed Certificates......................................................12
SECTION 3.9. Taking of Necessary Action; Further Action..................................................12
ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF COMPANY...........................................................13
SECTION 4.1. Organization and Qualification; Subsidiaries................................................13
SECTION 4.2. Certificate of Incorporation and Bylaws.....................................................13
SECTION 4.3. Capitalization..............................................................................13
SECTION 4.4. Authority Relative to This Agreement........................................................14
SECTION 4.5. No Conflict; Required Filings and Consents..................................................15
SECTION 4.6. Permits; Compliance with Laws...............................................................15
SECTION 4.7. SEC Filings; Financial Statements...........................................................16
SECTION 4.8. Absence of Certain Changes or Events........................................................17
SECTION 4.9. Employee Benefit Plans, Labor Matters.......................................................17
SECTION 4.10. Pooling; Certain Tax Matters...............................................................20
SECTION 4.11. Contracts..................................................................................20
SECTION 4.12. Litigation.................................................................................21
SECTION 4.13. Environmental Matters......................................................................21
SECTION 4.14. Intellectual Property......................................................................21
SECTION 4.15. Taxes......................................................................................24
SECTION 4.16. Insurance..................................................................................25
SECTION 4.17. Properties.................................................................................25
SECTION 4.18. Affiliates.................................................................................25
SECTION 4.19. Opinion of financial Advisor...............................................................26
SECTION 4.20. Brokers....................................................................................26
SECTION 4.21. Certain Business Practices.................................................................26
SECTION 4.22. Section 912 of the NYBCL Not Applicable....................................................26
SECTION 4.23. Business Activity Restriction..............................................................26
ARTICLE V. REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB..............................................27
SECTION 5.1. Organization and Qualification; Subsidiaries................................................27
SECTION 5.2. Certificate of Incorporation and Bylaws.....................................................27
SECTION 5.3. Capitalization..............................................................................27
SECTION 5.4. Authority Relative to This Agreement........................................................28
SECTION 5.5. No Conflict: Required Filings...............................................................29
SECTION 5.6. Permits; Compliance with Laws...............................................................29
SECTION 5.7. Absence of Certain Changes or Events........................................................30
SECTION 5.8. SEC Filings; Financial Statements...........................................................30
SECTION 5.9. Pooling; Certain Tax Matters................................................................31
SECTION 5.10. Litigation.................................................................................31
SECTION 5.11. Taxes......................................................................................32
SECTION 5.12. Brokers....................................................................................32
SECTION 5.13. Certain Business Practices.................................................................32
SECTION 5.14. Section 203 of the DGCL, Not Applicable....................................................32
SECTION 5.15. No Prior Activities........................................................................32
SECTION 5.16. Employee Benefit Plans; Labor Matters......................................................32
SECTION 5.17. Intellectual Property......................................................................34
ARTICLE VI. COVENANTS...........................................................................................35
SECTION 6.1. Conduct of Business by Company Pending the Closing..........................................35
SECTION 6.2. Notices of Certain Events...................................................................37
SECTION 6.3. Access to Information; Confidentiality......................................................38
SECTION 6.4. No solicitation of Transaction..............................................................38
SECTION 6.5. Tax-Free Transaction; Pooling...............................................................40
SECTION 6.6. Control of Operations.......................................................................40
SECTION 6.7. Further Action; Consents; Filings...........................................................40
SECTION 6.8. Additional Reports..........................................................................41
SECTION 6.9. Tax Information.............................................................................41
ARTICLE VII. ADDITIONAL AGREEMENTS..............................................................................42
SECTION 7.1. Registration Statement; Joiht Proxy Statement...............................................42
SECTION 7.2. Stockholders' Meetings......................................................................44
SECTION 7.3. Affiliates..................................................................................44
SECTION 7.4. Directors' and Officers' Indemnification and Insurance......................................45
SECTION 7.5. No Shelf Registration.......................................................................46
SECTION 7.6. Public Announcements........................................................................46
SECTION 7.7. NNM Listing.................................................................................46
SECTION 7.8. Blue Sky....................................................................................46
SECTION 7.9. Company Stock Options/Registration Statements on Form S-8...................................46
SECTION 7.10. Employee Matters...........................................................................46
SECTION 7.11. Iboard Representation......................................................................47
ARTICLE VIII. CONDITIONS TO THE MERGER..........................................................................47
SECTION 8.1. Conditions tot he Obligations of Each Party to Consummate the Merger........................47
SECTION 8.2. Conditions to the Obligations of Company....................................................48
SECTION 8.3. Conditions to the Obligations of Parent.....................................................49
ARTICLE IX. TERMINATION, AMENDMENT AND WAIVER...................................................................49
SECTION 9.1. Termination.................................................................................49
SECTION 9.2. Effect of Termination.......................................................................51
SECTION 9.3. Amendment...................................................................................51
SECTION 9.4. Waiver......................................................................................52
SECTION 9.5. Termination Fee: Expenses...................................................................52
ARTICLE X. GENERAL PROVISIONS...................................................................................53
SECTION 10.1. Non-Survival of Representations and Warranties.............................................53
SECTION 10.2. Notices....................................................................................53
SECTION 10.3. Severability...............................................................................54
SECTION 10.4. Assignment, Binding Effect, Benefit........................................................54
SECTION 10.5. Incorporation of Exhibits..................................................................54
SECTION 10.6. Governing Law..............................................................................54
SECTION 10.7. Waiver of Jury Trial.......................................................................55
SECTION 10.8. Headings; Interpretation...................................................................55
SECTION 10.9. Counterparts...............................................................................55
SECTION 10.10. Entire Agreement..........................................................................55
ANNEXES
ANNEX A Company Stockholder Agreement
ANNEX B Parent Stockholder Agreement
ANNEX C Form of Company Affiliate Agreement
ANNEX D Form of Stockholder Affiliate Agreement
</TABLE>
<PAGE>
AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
AGREEMENT AND PLAN OF MERGER AND REORGANIZATION, dated as of
June 23, 1999 (as amended, supplemented or otherwise modified from time to time,
this "Agreement"), among MULTEX.COM, INC., a Delaware corporation ("Parent"),
MARKET GUIDE INC., a New York corporation ("Company"), and MERENGUE ACQUISITION
CORP. a New York corporation and a direct wholly owned subsidiary of Parent
("Merger Sub"):
W I T N E S S E T H:
WHEREAS, the boards of directors of Parent and Company have
determined that it is advisable and in the best interests of their respective
companies and stockholders to enter into a business combination by means of the
merger of Merger Sub with and into Company (the "Merger") and have approved and
adopted this Agreement;
WHEREAS, concurrently with the execution of this Agreement and
as an inducement to Parent to enter into this Agreement, certain stockholders of
Company have entered into a stockholder agreement (each, a "Company Stockholder
Agreement") in the form attached hereto as Annex A;
WHEREAS, concurrently with the execution of this Agreement and
as an inducement to Company to enter into this Agreement, certain stockholders
of Parent have entered into a stockholder agreement (each, a "Parent Stockholder
Agreement") in the form attached hereto as Annex B;
WHEREAS, for financial reporting purposes, it is intended that
the Merger be accounted for as a "pooling of interests" under United States
generally accepted accounting principles ("U. S. GAAP") and the accounting
standards of the United States Securities and Exchange Commission (the "SEC");
and
WHEREAS, for United States Federal income tax purposes, it is
intended that the Merger shall qualify as a tax-free reorganization under
Section 368(a) of the Internal Revenue Code of 1986, as amended (together with
the rules and regulations promulgated thereunder, the "Code"), and that this
Agreement shall be, and hereby is, adopted as a plan of reorganization for
purposes of Section 368 of the Code;
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties, covenants and agreements set forth herein, and
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, and intending to be legally bound hereby, the parties
hereto hereby agree as follows:
<PAGE>
ARTICLE I.
DEFINITIONS
SECTION 1.1. Certain Defined Terms. Unless the context
otherwise requires, the following terms, when used in this Agreement, shall have
the respective meanings specified below (such meanings to be equally applicable
to the singular and plural forms of the terms defined):
"Affiliate" shall mean, with respect to any person, any other
person that controls, is controlled by or is under common control with the first
person.
"Blue Sky Laws" shall mean state securities or "blue sky"
laws.
"Business Day" shall mean any day on which the principal
offices of the SEC in Washington, D.C. are open to accept filings, or, in the
case of determining a date when any payment is due, any day on which banks are
not required or authorized by law or executive order to close in the City of New
York.
"Company Competing Transaction" shall mean any of the
following involving Company (other than the Merger):
any merger, consolidation, share exchange, business combina-
tion or other similar transaction;
any sale, lease, exchange, transfer or other disposition of
33% or more of the assets of such party and its subsidiaries, taken as
a whole, in a single transaction or series of transactions;
any tender offer or exchange offer for 33% or more of the
outstanding voting securities of such party or the filing of a
registration statement under the Securities Act in connection
therewith; or
any person having acquired beneficial ownership or the right
to acquire beneficial ownership of, or any "group" (as such term is
defined under Section 13(d) of the Exchange Act) having been formed
(other than a group consisting exclusively of those individuals who
execute a Company Affiliate Agreement) which beneficially owns or has
the right to acquire beneficial ownership of, 33% or more of the
outstanding voting securities of such party;
any solicitation in opposition to the approval of this
Agreement by the stockholders of such party; or
any public announcement of a proposal, plan or intention to do
any of the foregoing or any agreement to engage in any of the
foregoing.
"Company Disclosure Schedule" shall mean the disclosure
schedule delivered by Company to Parent prior to the execution of this Agreement
and forming a part hereof.
"Company Material Adverse Effect" shall mean any change in or
effect on the business of Company and the Company Subsidiaries that,
individually or in the aggregate (taking into account all other such changes or
effects), is, or is reasonably likely to be, materially adverse to the business,
assets, liabilities, financial condition or results of operations of Company and
the Company Subsidiaries, taken as a whole, provided, however, that in no event
shall a decrease in the trading price of Company Common Stock be considered a
Company Material Adverse Effect.
"Company Stock Plans" shall mean Company's 1995 Key Employee
Incentive Plan and Company's 1995 Independent Director's Stock Incentive Plan.
"Confidentiality Agreement" shall mean the confidentiality
agreement, dated as of April 26, 1999, between Parent and Company.
"DGCL" shall mean the General Corporation Law of the State of
Delaware.
"$" shall mean United States Dollars.
"Encumbrances" shall mean all claims, security interests,
liens, pledges, charges, escrows, options, proxies, rights of first refusal,
preemptive rights, mortgages, hypothecations, prior assignments, title retention
agreements, indentures, security agreements or any other encumbrance of any
kind.
"Environmental Law" shall mean any Law and any enforceable
judicial or administrative interpretation thereof, including any judicial or
administrative order, consent decree or judgment, relating to pollution or
protection of the environment or natural resources, including, without
limitation, those relating to the use, handling, transportation, treatment,
storage, disposal, release or discharge of Hazardous Material.
"Environmental Permit" shall mean any permit, approval,
identification number, license or other authorization required under or issued
pursuant to any applicable Environmental Law.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, together with the rules and regulations promulgated thereunder.
"Expenses" shall mean, with respect to any party hereto, all
reasonable out-of-pocket expenses (including, without limitation, all fees and
expenses of counsel, accountants, investment bankers, experts and consultants to
a party hereto and its affiliates) incurred by such party or on its behalf in
connection with or related to the authorization, preparation, negotiation,
execution and performance of its obligations pursuant to this Agreement and the
consummation of the Merger, the preparation, printing, filing and mailing of the
Registration Statement and the Joint Proxy Statement, the solicitation of
stockholder approvals, the filing of HSR Act notice, if any, and all other
matters related to the transactions contemplated hereby and the closing of the
Merger.
"Governmental Entity" shall mean any United States Federal,
state or local or any foreign governmental, regulatory or administrative
authority, agency or commission or any court, tribunal or arbitral body.
"Governmental Order" shall mean any order, writ, judgment,
injunction, decree, stipulation, determination or award entered by or with any
Governmental Entity.
"Hazardous Material" shall mean (i) any petroleum, petroleum
products, by-products or breakdown products, radioactive materials, friable
asbestos-containing materials or polychlorinated biphenyls or (ii) any chemical,
material or substance defined or regulated as toxic or hazardous or as a
pollutant or contaminant or waste under any applicable Environmental Law.
"HSR Act" shall mean Hart-Scott-Rodino Antitrust Improvements
Act of 1976, as amended, together with the rules and regulations promulgated
thereunder.
"IRS" shall mean the United States Internal Revenue Service.
"Law" shall mean any Federal, state, foreign or local statute,
law, ordinance, regulation, rule, code, order, judgment, decree, other
requirement or rule of law of the United States or any other jurisdiction, and
any other similar act or law.
"NNM" shall mean the Nasdaq National Market.
"NSCM" shall mean the Nasdaq Small-Cap Market.
"NYBCL" shall mean the New York Business Corporation Law.
"Parent Combination Transaction" shall mean any of the
following involving Parent (other than the Merger):
any merger, consolidation, share exchange, business
combination or other similar transaction;
(A) any sale, lease, exchange, transfer or other disposition
of 33% or more of the assets of such party and its subsidiaries, taken
as a whole, in a single transaction or series of transactions or (B)
any purchase of assets by Parent, in a single transaction, the
consideration for which exceeds $150 million;
any tender offer or exchange offer for 33% or more of the
outstanding voting securities of such party or the filing of a
registration statement under the Securities Act in connection
therewith; or
any person having acquired beneficial ownership or the right
to acquire beneficial ownership of, or any "group" (as such term is
defined under Section 13(d) of the Exchange Act) having been formed
which beneficially owns or has the right to acquire beneficial
ownership of, 33% or more of the outstanding voting securities of such
party;
any solicitation in opposition to the approval of this
Agreement by the stockholders of such party; or
any public announcement of a proposal, plan or intention to do
any of the foregoing or any agreement to engage in
any of the foregoing.
"Parent Competing Transaction" shall mean any merger,
consolidation, business combination or other similar transaction involving
Parent in which the other party to such competing transaction required, as a
condition to such transaction being effected, that Parent not consummate the
transactions contemplated by this Agreement.
"Parent Disclosure Schedule" shall mean the disclosure
schedule delivered by Parent to Company prior to the execution of this Agreement
and forming a part hereof.
"Parent Material Adverse Effect" shall mean any change in or
effect on the business of Parent and the Parent Subsidiaries that, individually
or in the aggregate (taking into account all other such changes or effects), is,
or is reasonably likely to be, materially adverse to the business, assets,
liabilities, financial condition or results of operations of Parent and the
Parent Subsidiaries, taken as a whole, provided, however, that in no event shall
a decrease in the trading price of Parent Common Stock be considered a Parent
Material Adverse Effect.
"Parent Stock Plans" shall mean Parent's 1999 Stock Option
Plan.
"Permitted Encumbrances" shall mean (i) liens for Taxes,
assessments and other governmental charges not yet due and payable, (ii)
immaterial unfiled mechanics', workmen's, repairmen's, warehousemen's, carriers'
or other like liens arising or incurred in the ordinary course of business which
are not yet due and payable and (iii) equipment leases with third parties
entered into in the ordinary course of business.
"Person" shall mean an individual, corporation, partnership,
limited partnership, limited liability company, syndicate, person (including,
without limitation, a "person" as defined in Section 13(d)(3) of the Exchange
Act), trust, association, entity or government or political subdivision, agency
or instrumentality of a government.
"Securities Act" shall mean the Securities Act of 1933, as
amended, together with the rules and regulations promulgated thereunder.
"Subsidiary" shall mean, with respect to any person, any
corporation, limited liability company, partnership, joint venture or other
legal entity of which such person (either alone or through or together with any
other subsidiary of such person) owns, directly or indirectly, a majority of the
stock or other equity interests, the holders of which are generally entitled to
vote for the election of the board of directors or other governing body of such
corporation or other legal entity.
"Tax" shall mean (i) any and all taxes, fees, levies, duties,
tariffs, imposts and other charges of any kind (together with any and all
interest, penalties, additions to tax and additional amounts imposed with
respect thereto) imposed by any Governmental Entity or taxing authority ("Taxing
Authority"), including, without limitation, taxes or other charges on or with
respect to income, franchises, windfall or other profits, gross receipts,
property, sales, use, capital stock, payroll, employment, social security,
workers' compensation, unemployment compensation or net worth; taxes or other
charges in the nature of excise, withholding, ad valorem, stamp, transfer,
value-added or gains taxes; license, registration and documentation fees; and
customers' duties, tariffs and similar charges; (ii) any liability for the
payment of any amounts of the type described in (i) as a result of being a
member of an affiliated, combined, consolidated or unitary group for any taxable
period; and (iii) any liability for the payment of amounts of the type described
in (i) or (ii) as a result of being a transferee of, or a successor in interest
to, any person or as a result of an express or implied obligation to indemnify
any person.
"Tax Return" shall mean any return, statement or form
(including, without limitation, any estimated tax reports or return, withholding
tax reports or return and information report or return) required to be filed
with respect to any Taxes.
ARTICLE II.
THE MERGER
SECTION 2.1. The Merger. Upon the terms and subject to the
conditions set forth in this Agreement, and in accordance with the NYBCL, at the
Effective Time (as defined in Section 2.03), Merger Sub shall be merged with and
into Company. As a result of the Merger, the separate corporate existence of
Merger Sub shall cease and Company shall continue as the surviving corporation
of the Merger as a wholly owned subsidiary of Parent (the "Surviving
Corporation").
SECTION 2.2. Closing. Unless this Agreement shall have been
terminated and the Merger herein contemplated shall have been abandoned pursuant
to Section 9.01 and subject to the satisfaction or waiver of the conditions set
forth in Article VIII, the consummation of the Merger shall take place as
promptly as practicable (and in any event within three business days) after
satisfaction or waiver of the conditions set forth in Article VIII, at a closing
(the "Closing") to be held at the offices of Brobeck, Phleger & Harrison LLP,
1633 Broadway, 47th Floor, New York, New York 10019, unless another date, time
or place is agreed to by Parent and Company.
SECTION 2.3. Effective Time. At and after the time of the
Closing, the parties shall cause the Merger to be consummated by filing a
certificate of merger (the "Certificate of Merger") with the Department of State
of the State of New York in such form as required by, and executed in accordance
with the relevant provisions of, the NYBCL (the date and time of such filing, or
such later date and time as may be set forth therein, being the "Effective
Time").
SECTION 2.4. Effect of the Merger. At the Effective Time, the
effect of the Merger shall be as provided in the applicable provisions of the
NYBCL. Without limiting the generality of the foregoing, and subject thereto, at
the Effective Time, except as otherwise provided herein, all the property,
rights, privileges, powers and franchises of Company and Merger Sub shall vest
in Company as the Surviving Corporation, and all debts, liabilities and duties
of Company and Merger Sub shall become the debts, liabilities and duties of
Company as the Surviving Corporation.
SECTION 2.5. Certificate of Incorporation; Bylaws; Directors
and Officers of Surviving Corporation. Unless otherwise agreed by Parent and
Company before the Effective Time, at the Effective Time:
the Certificate of Incorporation and the Bylaws of Merger
Sub as in effect immediately prior to the Effective Time shall be the
Certificate of Incorporation and the Bylaws of the Surviving
Corporation, until thereafter amended as provided by Law and such
Certificate of Incorporation or Bylaws; provided, however, that Article
I of the Certificate of Incorporation of the Surviving Corporation
shall be amended to read as follows: "The name of the corporation is
MARKET GUIDE INC.";
(a).....the officers of Merger Sub immediately prior to the Effective
Time shall serve in their respective offices of the
Surviving Corporation from and after the Effective Time, in
each case until their successors are elected or appointed
and qualified or until their resignation or removal; and
(b).....the directors of Merger Sub immediately prior to the Effective
Time shall serve as the directors of the Surviving
Corporation from and after the Effective Time, in each case
until their successors are elected or appointed and
qualified or until their resignation or removal.
ARTICLE III.
CONVERSION OF SECURITIES; EXCHANGE OF CERTIFICATES
SECTION 3.1. Conversation of Shares. At the Effective time, by
virtue of the Merger, and without any action on the part of Parent, Merger Sub,
Company or the holders of any of the following securities:
(a) Each share of Common Stock, $.001 par value per share, of Company ("Company
Common Stock") issued and outstanding immediately before the Effective Time
(excluding (i) shares of Company Common Stock, if any, held by persons who
have not voted such shares for approval of the Merger and with respect to
which such persons shall have perfected dissenters' rights in accordance
with the NYBCL ("Dissenting Shares"), (ii) those held in the treasury of
Company, and (iii) those owned by any wholly owned subsidiary of Company)
and all rights in respect thereof, shall, forthwith cease to exist and be
converted into and become exchangeable for 1.00 share (the "Exchange
Ratio") of common stock, $.01 par value, of Parent ("Parent Common Stock").
(b) Each share of Company Common Stock held in the treasury of Company or
owned by any wholly owned subsidiary of Company immediately prior to
the Effective Time shall be canceled and retired and no shares of stock
or other securities of Parent, the Surviving Corporation or any
other corporation shall be issuable, and no payment of other
consideration shall be made, with respect thereto.
(c) Each issued and outstanding share of capital stock of Merger Sub shall be
converted into and become one fully paid and nonassessable share of common
stock of the Surviving Corporation. From and after the Effective Time,
each outstanding certificate theretofore representing shares of Merger Sub
common stock shall be deemed for all purposes to evidence ownership of and
to represent the number of shares of Surviving Corporation common stock
into which such shares of Merger Sub common stock shall have been
converted. Promptly after the Effective Time, the Surviving Corporation
shall issue to Parent a stock certificate representing 100 shares of
Surviving Corporation common stock in exchange for the certificate that
formerly represented shares of Merger Sub common stock, which shall be
surrendered by Parent and cancelled.
TION 3.2. Exchange of Shares Other than Dissenting Shares and Treasury Shares
(a) Exchange Agent. As of the Effective Time, Parent shall enter into an
agreement with a bank or trust company reasonably acceptable to Company to
act as exchange agent for the Merger (the "Exchange Agent") as may be
designated by Parent.
(b) Parent to Provide Common Stock and Cash. Promptly after the Effective
Time, Parent shall make available to the Exchange Agent for the benefit
of the holder of Company Common Stock: (i) Certificates of Parent
Common Stock ("Parent Certificates")representing the number of
whole shares of Parent Common Stock issuable pursuant to Section 3.01
(a) in exchange for shares of company Common Stock outstanding immediately
prior to the Effective Time; and (ii) sufficient funds to permit
payment in lieu of fractional shares pursuant to Section 3.04.
(c) Exchange Procedures. The Exchange Agent shall mail to each holder of record
of certificates of Company Common Stock ("Company Certificates"), whose
shares were converted into the right to receive shares of Parent Common
Stock (and cash in lieu of fractional shares pursuant to Section 3.04)
promptly after the Effective Time (and in any event no later than three
business days after the later to occur of the Effective Time and receipt by
Parent of a complete list from Company of the names and addresses of its
holders of record): (i) a form letter of transmittal (which shall specify
that delivery shall be effected, and risk of loss and title to the Company
Certificates shall pass, only upon receipt of the Company Certificates by
the Exchange Agent, and shall be in such form and have such other provisions
as Parent may reasonably specify); and (ii) instructions for use in
effecting the surrender of the Company Certificates in exchange for Parent
Certificates (and cash in lieu of fractional shares). Upon surrender of a
Company Certificate for cancellation to the Exchange Agent or to such other
agent or agents as may be appointed by Parent, together with such letter of
transmittal, duly completed and validly executed, and such other documents
as may be reasonably required by the Exchange Agent, the holder of such
Company Certificate shall be entitled to receive in exchange therefor a
Parent Certificate representing the number of whole shares of Parent Common
Stock that such holder has the right to receive pursuant to this Article III
and payment of cash in lieu of fractional shares which such holder has the
right to receive pursuant to Section 3.04, and the Company Certificate so
surrendered shall forthwith be canceled. Until so surrendered, each
outstanding CompanyCertificate that, prior to the Effective Time,
represented shares of Company Common Stock will be deemed from and after the
Effective Time, for all purposes other than the payment of dividends and
distributions, to evidence the ownership of the number of full shares of
Parent Common Stock into which such shares of Company Common Stock shall
have been so converted and the right to receive an amount in cash in lieu of
the issuance of any fractional shares in accordance with Section 3.04.
Notwithstanding any other provision of this Agreement, no interest will be
paid or will accrue on any cash payable to holders of Company Certificates
pursuant to the provisions of this Article III.
(d) Distributions With Respect to Unexchanged Shares. No dividends or other
distributions with respect to Parent Common Stock with a record date after
the Effective Time will be paid to the holder of any unsurrendered Company
Certificate with respect to the shares of Parent Common Stock represented
thereby until the holder of record of such Company Certificate shall
surrender such Company Certificate. Subject to the effect of applicable
escheat or similar laws, following surrender of any such Company Certificate
there shall be paid to the record holder of the Parent Certificates issued
in exchange therefor, without interest, at the time of such surrender, the
amount of any such dividends or other distributions with a record date after
the Effective Time theretofore payable (but for the provisions of this
Section 3.02(d)) with respect to such shares of Parent Common Stock.
(e) Transfer of Ownership. If any Parent Certificate is to be issued in a name,
or cash in lieu of fractional shares paid to a person, other than that in
which the Company Certificate surrendered in exchange therefor is registered
it will be a condition of the issuance and/or payment thereof that the
Company Certificate so surrendered will be properly endorsed and otherwise
in proper form for transfer and that the person requesting such exchange
will have paid to Parent or any agent designated by it any transfer or other
taxes required by reason of the issuance of a Parent Certificate for shares
of Parent Common Stock in any name other than that of the registered holder
of the Company Certificate surrendered, or established to the satisfaction
of Parent or any agent designated by it that such tax has been paid or is
not payable.
(f) Termination of Exchange Agent Funding. Any portion of funds (including any
interest earned thereon) or Parent Certificates held by the Exchange Agent
which have not been delivered to holders of Company Certificates pursuant to
this Article III within six months after the Effective Time shall promptly
be paid or delivered, as appropriate, to Parent, and thereafter holders of
Company Certificates who have not theretofore complied with the exchange
procedures set forth in and contemplated by this Section 3.02 shall there-
after look only to Parent (subject to abandoned property, escheat and
similar laws) only as general creditors thereof for their claim for shares
of Parent Stock, any cash in lieu of fractional shares of Parent Common
Stock and any dividends or distributions (with a record date after the
Effective Time) with respect to Parent Common Stock to which they are
entitled.
(g) No Liability. Notwithstanding anything to the contrary in this Section
3.02, none of the Exchange Agent, the Surviving Corporation or any
party hereto shall be liable to any person in respect of any shares
of Parent Common Stock or cash delivered to a public official pursuant to
any applicable abandoned property, escheat or similar law.
SECTION 3.3. Stock Transfer Books.
(a) At the Effective Time, the stock transfer books of Company shall each be
closed, and there shall be no further registration of transfers of shares of
Company Common Stock thereafter on the records of any such stock transfer
books. In the event of a transfer of ownership of shares of Company Common
Stock that is not registered in the stock transfer records of Company at the
Effective Time, a certificate or certificates representing the number of
full shares of Parent Common Stock into which such shares of Company Common
Stock shall have been converted shall be issued to the transferee together
with a cash payment in lieu of fractional shares, if any, in accordance with
Section 3.04 hereof, and a cash payment in the amount of dividends, if any,
in accordance with Section 3.02(d) hereof, if the certificate or
certificates representing such shares of Company Common Stock is or are
surrendered as provided in Section 3.02(c) hereof, accompanied by all
documents required to evidence and effect such transfer and by evidence of
payment of any applicable stock transfer tax.
(b) Notwithstanding anything to the contrary herein, certificates
surrendered for exchange by any person constituting an affiliate of
Company shall not be exchanged until Parent shall have received from such
Person an affiliate letter as provided in Section 7.03.
SECTION 3.4. No Fractional Share Certificates. No scrip or
fractional share Parent Certificate shall be issued upon the surrender for
exchange of Company Certificates, and an outstanding fractional share interest
shall not entitle the owner thereof to vote, to receive dividends or to any
rights of a stockholder of Parent or of Surviving Corporation with respect to
such fractional share interest. As promptly as practicable following the
Effective Time, Parent shall deposit with the Exchange Agent an amount in cash
sufficient for the Exchange Agent to pay each holder of Company Common Stock an
amount in cash, rounded to the nearest whole cent, equal to the product obtained
by multiplying (i) the fractional share interest to which such holder would
otherwise be entitled (after taking into account all shares of Company Common
Stock held at the Effective Time by such holder) by (ii) the Final Average
Closing Price. As soon as practicable after the determination of the amount of
cash, if any, to be paid to holders of Company Common Stock with respect to any
fractional share interests, the Exchange Agent shall make available such
amounts, net of any required withholding taxes, to such holders of Company
Common Stock, subject to and in accordance with the terms of Section 3.02
hereof.
SECTION 3.5. Options to Purchase Company Common Stock. At the
Effective Time, the Company Stock Plans and each option granted by Company to
purchase shares of Company Common Stock pursuant to the Company Stock Plans or
otherwise listed on Schedule 3.05 of the Company Disclosure Schedule ("Company
Stock Options"), which is outstanding and unexercised immediately prior to the
Effective Time, shall be assumed by Parent and converted into an option or
warrant, as the case may be, to purchase shares of Parent Common Stock in such
number and at such exercise price as provided below and otherwise having the
same terms and conditions as in effect immediately prior to the Effective Time
(except to the extent that such terms, conditions and restrictions may be
altered in accordance with their terms as a result of the Merger contemplated
hereby and except that all references in each such Company Stock Option to
Company shall be deemed to refer to Parent):
the number of shares of Parent Common Stock to be subject to
the new option or warrant, as the case may be, shall be equal to the
product of (x) the number of shares of Company Common Stock subject to
the original Company Stock Option immediately prior to the Effective
Time and (y) the Exchange Ratio;
the exercise price per share of Parent Common Stock under the
new option or warrant shall be equal to (x) the exercise price per
share of Company Common Stock in effect under the original Company
Stock Option immediately prior to the Effective Time divided by (y) the
Exchange Ratio; and
in effecting such assumption and conversion, the aggregate
number of shares of Parent Common Stock to be subject to each assumed
Company Stock Option will be rounded down, if necessary, to the next
whole share and the aggregate exercise price shall be rounded up, if
necessary, to the next whole cent.
The adjustments provided herein with respect to any options that are
"incentive stock options" (as defined in Section 422 of the Code) shall be
effected in a manner consistent with the requirements of Section 424(a) of the
Code. Pursuant to the terms of the Company Stock Plans, the execution of this
Agreement will result in accelerated vesting of all such options as of the date
hereof.
SECTION 3.6. Certain Adjustments. If between the date of this
Agreement and the Effective Time, (a) the outstanding shares of Parent Common
Stock or Company Common Stock shall be changed into a different number of shares
by reason of any reclassification, recapitalization, split-up, combination or
exchange of shares, or any dividend payable in stock or other securities shall
be declared thereon with a record date within such period, or (b) the number of
shares of Company Common Stock on a fully diluted basis is in excess of that
specified in Section 4.03 and disclosed in Schedule 4.03 of the Company
Disclosure Schedule (regardless of whether such excess is a result of an
additional issuance of capital stock except as otherwise permitted pursuant to
this Agreement or a correction to such Sections), and if such excess number of
shares of Company Common Stock exceeds 1% of the number of shares of Company
Common Stock specified in Section 4.03 and disclosed in Schedule 4.03 of the
Company Disclosure Schedule, then, in either case, the Exchange Ratio
established pursuant to the provisions of Section 3.01 shall be adjusted
accordingly to provide to Parent the same economic effect as contemplated by
this Agreement prior to such reclassification, recapitalization, split-up,
combination, exchange, dividend or increase.
SECTION 3.7. Dissenters' Rights. Any Dissenting Shares shall
not be converted into, or be exchangeable for, the right to receive Parent
Common Stock but shall instead be converted into the right to receive such
consideration as may be determined to be due with respect to such Dissenting
Shares pursuant to New York Law unless and until such holder shall have failed
to perfect or shall have effectively withdrawn or lost his right of appraisal
and payment, as the case may be. Company shall give Parent prompt notice of any
Dissenting Shares (and shall also give Parent prompt notice of any withdrawals
of such demands for appraisal rights) and Parent shall have the right to direct
all negotiations and proceedings with respect to such demands. Neither Company
nor the Surviving Corporation shall, except with the prior written consent of
Parent, voluntarily make any payments with respect to, or settle or offer to
settle, any such demand for appraisal rights. If, after the Effective Time, any
Dissenting Shares shall lose their status as Dissenting Shares, Parent shall
issue and deliver, upon surrender by such shareholder of certificate or
certificates representing shares of Company Capital Stock, the number of shares
of Parent Common Stock to which such shareholder would otherwise be entitled
pursuant to this Article III.
SECTION 3.8. Lost, Stolen or Destroyed Certificates. In the
event any Company Certificates shall have been lost, stolen or destroyed, the
Exchange Agent shall issue in exchange for such lost, stolen or destroyed
Company Certificates, upon the making of an affidavit of that fact by the holder
thereof, such shares of Parent Common Stock (and cash in lieu of fractional
shares) as may be required pursuant to Section 3.01, provided, however, that
Parent may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed Company
Certificates to indemnify Parent against any claim that may be made against
Parent, the Surviving Corporation or the Exchange Agent with respect to the
Company Certificates alleged to have been lost, stolen or destroyed.
SECTION 3.9. Taking of Necessary Action; Further Action. If,
at any time after the Effective Time, any further action is necessary or
desirable to carry out the purposes of this Agreement and to vest the Surviving
Corporation with full right, title and possession to all assets, property,
rights, privileges, powers and franchises of Company, the officers and directors
of Company are fully authorized in the name of their corporation or otherwise to
take, and will use good faith efforts to take, all such lawful and necessary
action, so long as such action is not inconsistent with this Agreement.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF COMPANY
Company hereby represents and warrants to Parent and Merger
Sub, subject to the exceptions specifically disclosed in writing in the Company
Disclosure Schedule, all such exceptions to be referenced to a specific
representation set forth in this Article IV, that:
SECTION 4.1. Organization and Qualification; Subsidiaries
(a) Each of Company and each directly and indirectly owned subsidiary of Company
(the "Company Subsidiaries") has been duly organized and is validly existing
and in good standing (to the extent applicable) under the laws of the
jurisdiction of its incorporation or organization, as the case may be, and
has the requisite corporate power and authority to own, lease and operate
its properties and to carry on its business as it is now being conducted.
Company and each Company Subsidiary is duly qualified or licensed to do
business, and is in good standing (to the extent applicable), in each
jurisdiction where the character of the properties owned, leased or operated
by it or the nature of its business makes such qualification or licensing
necessary, except for such failures to be so qualified or licensed and in
good standing that could not reasonably be expected to have, individually or
in the aggregate, a Company Material Adverse Effect.
(b) Schedule 4.01 of the Company Disclosure Schedule sets forth, as of the date
of this Agreement, a true and complete list of each Company Subsidiary,
together with (i) the jurisdiction of incorporation or organization of each
Company Subsidiary and the percentage of each Company Subsidiary's out-
standing capital stock or other equity interests owned by Company or another
Company Subsidiary and (ii) an indication of whether each Company Subsidiary
is a "Significant Subsidiary" as defined in Regulation S-X under the
Exchange Act. Except as set forth in Schedule 4.01 of the Company
Disclosure Schedule, neither Company nor any Company Subsidiary owns an
equity interest in any partnership or joint venture arrangement or other
business entity.
SECTION 4.2. Certificate of Incorporation and Bylaws. The
copies of Company's certificate of incorporation and bylaws previously presented
to Parent by Company are true, complete and correct copies thereof. Such
certificate of incorporation and bylaws are in full force and effect. Company is
not in violation of any of the provisions of its certificate of incorporation or
bylaws.
SECTION 4.3. Capitalization
(a) The authorized capital stock of Company consists of 20,000,000 shares of
Company Common Stock and no shares of preferred stock ("Company Preferred
Stock"). As of the date hereof, (i) 4,801,380 shares of Company Common
Stock are issued and outstanding, all of which are validly issued, fully
paid and nonassessable, (ii) no shares of Company Common Stock are held in
the treasury of Company, (iii) no shares of Company Common Stock are held by
Company Subsidiaries, (iv) 850,000 shares of Company Common Stock are
reserved for future issuance pursuant to Company Stock Options, (v) no
shares of Company Preferred Stock are outstanding, and (vi) 125,000 shares
of Company Common Stock are reserved for issuance pursuant to Company's
Employee Stock Purchase Plan (the "Company ESPP"), of which 57,788 shares
have been issued. The name of each holder of a Company Stock Option, the
grant date of each Company Stock Option, the number of shares of Company
Common Stock for which each Company Stock Option is exercisable, the vesting
or exercise schedule and the exercise price of each Company Stock Option are
set forth in Schedule 4.03 of the Company Disclosure Schedule. Except for
shares of Company Common Stock issuable pursuant to Company Stock Plans and
the Company ESPP and as otherwise set forth in Schedule 4.03 of the Company
Disclosure Schedule, there are no options, warrants or other rights,
agreements, arrangements or commitments of any character to which Company or
any Company Subsidiary is a party or by which Company or any Company
Subsidiary is bound relating to the issued or unissued capital stock of
Company or any Company Subsidiary or obligating Company or any Company
Subsidiary to issue or sell any shares of capital stock of, or other equity
interests in, Company or any Company Subsidiary. All shares of Company
Common Stock subject to issuance as aforesaid, upon issuance prior to the
Effective Time on the terms and conditions specified in the instruments
pursuant to which they are issuable, will be duly authorized, validly issued
fully paid and nonassessable. There are no outstanding contractual
obligations of Company or any Company Subsidiary to repurchase, redeem or
otherwise acquire any shares of Company Common Stock or any capital stock of
any Company Subsidiary. Each outstanding share of capital stock of each
Company Subsidiary is duly authorized, validly issued,fully paid and non-
assessable and each such share owned by Company or another Company
Subsidiary is free and clear of all security interests, liens, claims,
pledges, options, rights of first refusal, agreements, limitations on
Company's or such other Company Subsidiary's voting rights, charges and
other encumbrances of any nature whatsoever. There are no material
outstanding contractual obligations of Company or any Company Subsidiary to
provide funds to, or make any material investment (in the form of a loan,
capital contribution or otherwise) in, any Company Subsidiary or any other
entity or person.
(b) The officers and directors of Company, in the aggregate, own of record
and beneficially more than forty-one percent (41%) of the Company
Common Stock outstanding, on a fully-diluted basis.
SECTION 4.4. Authority Relative to This Agreement. Company has
all necessary corporate power and authority to execute and deliver this
Agreement, to perform its obligations hereunder, and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
by Company and the consummation by Company of the transactions contemplated
hereby have been duly and validly authorized by all necessary corporate action,
and no other corporate proceedings on the part of Company are necessary to
authorize this Agreement or to consummate the transactions contemplated hereby
(other than, with respect to the Merger, the approval of this Agreement by the
holders of two-thirds of the outstanding shares of Company Common Stock entitled
to vote with respect thereto at the Company Stockholders' Meeting (as defined in
Section 7.01), and the filing and recordation of the Certificate of Merger as
required by the DGCL). This Agreement has been duly executed and delivered by
Company and, assuming the due authorization, execution and delivery by the other
parties hereto, constitutes the legal, valid and binding obligation of Company,
enforceable against Company in accordance with its terms, except to the extent
that enforceability hereof may be limited by applicable bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of creditors'
rights generally and by principles of equity regarding the availability of
remedies.
SECTION 4.5. No Conflict; Required Filings and Consents.
(a) The execution and delivery of this Agreement by Company do not, and the
performance by Company of its obligations hereunder, and the consummation
of the Merger will not, (i) conflict with or violate any provision of the
certificate of incorporation or bylaws of Company or any equivalent
organizational documents of any Company Subsidiary, (ii) assuming that all
filings and notifications described in Section 4.05(b) have been made,
conflict with or violate any Law applicable to Company or any Company
Subsidiary or by which any property or asset of Company or any Company
Subsidiary is bound or affected or (iii) except as otherwise set forth on
Schedule 4.05(a) of the Company Disclosure Schedule, result in any breach
of or constitute a default (or an event which with the giving of notice or
lapse of time or both could reasonably be expected to become a default)
under, or give to others any right of termination, amendment, acceleration
or cancellation of, or result in the creation of a lien or other
encumbrance on any property or asset of Company or any Company Subsidiary
pursuant to, any material note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument or
obligation.
(b) The execution and delivery of this Agreement by Company do not, and the
performance by Company of its obligations hereunder and the consummation
of the Merger will not, require any consent, approval, authorization or
permit of, or filing by Company with or notification by Company to,
any Governmental Entity, except pursuant to applicable requirements
of the Exchange Act, the Securities Act, Blue Sky Laws, the rules and
regulations of the NSCM, the premerger notification requirements of
the HSR Act, and the filing and recordation of the Certificate of
Merger as required by the NYBCL.
SECTION 4.6. Permits; Compliance with Laws. Company and the
Company Subsidiaries are in possession of all franchises, grants,
authorizations, licenses, establishment registrations, product listings,
permits, approvals and orders of any Governmental Entity necessary for Company
or any Company Subsidiary to own, lease and operate its properties and assets or
otherwise to carry on its business as it is now being conducted (collectively,
the "Company Permits"), and, as of the date of this Agreement, none of the
Company Permits has been suspended or cancelled nor is any such suspension or
cancellation pending or, to the knowledge of Company, threatened. Neither
Company nor any Company Subsidiary is in conflict with, or in default or
violation of, (i) any Law applicable to Company or any Company Subsidiary or by
which any property or asset of Company or any Company Subsidiary is bound or
affected or (ii) any Company Permits, except for such conflicts, defaults or
violations that could not reasonably be expected to have, individually or in the
aggregate, a Company Material Adverse Effect. Schedule 4.06 of the Company
Disclosure Schedule sets forth, as of the date of this Agreement, all actions,
proceedings, investigations or surveys pending or, to the knowledge of Company,
threatened against Company or any Company Subsidiary that could reasonably be
expected to result in the suspension or cancellation of any other Company
Permit. Since March 1, 1996, neither Company nor any Company Subsidiary has
received from any Governmental Entity any written notification with respect to
possible conflicts, defaults or violations of Laws.
SECTION 4.7. SEC Filings; Financial Statements.
(a) Company has timely filed all forms, reports, statements and documents
required to be filed by it (A) with the SEC and the NSCM since January 1,
1995 (collectively, together with any such forms, reports, statements and
documents Company may file subsequent to the date hereof until the Closing,
the "Company Reports") and (B) since January 1, 1995 with any other
Governmental Entities. Each Company Report (i) was prepared in accordance
with the requirements of the Securities Act, the Exchange Act or the rules
and regulations of the NSCM, as the case may be, and (ii) did not at the
time it was filed contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary in
order to make the statements made therein, in the light of the circum-
stances under which they were made, not misleading. Each form, report,
statement and document referred to in clause (B) of this paragraph was
prepared in all material respects in accordance with the requirements of
applicable Law. No Company Subsidiary is subject to the periodic reporting
requirements of the Exchange Act or required to file any form, report or
other document with the SEC, the NSCM, any other stock exchange or any
other comparable Governmental Entity.
(b) Each of the consolidated financial statements (including, in each case, any
notes thereto) contained in the Company Reports was prepared in accordance
with U.S. GAAP applied on a consistent basis throughout the periods
indicated (except as may be indicated in the notes thereto) and each
presented fairly the consolidated financial position of Company and the
Company Subsidiaries as at the respective dates thereof, and their consol-
idated results of operations, stockholders' equity and cash flows for the
respective periods indicated therein, except as otherwise noted therein
(subject, in the case of unaudited statements, to normal and recurring
immaterial year-end adjustments).
(c) Except as and to the extent set forth or reserved against on the
consolidated balance sheet of Company and the Company Subsidiaries
as of February 28, 1999 as reported in the Company Reports, none of
Company or any Company Subsidiary has any liabilities or obligations
of any nature (whether accrued, absolute, contingent or otherwise) that
would be required to be reflected on a balance sheet or in notes
thereto prepared in accordance with U.S. GAAP, except for liabilities
or obligations incurred in the ordinary course of business consistent with
past practice since February 28, 1999.
SECTION 4.8. Absence of Certain Changes or Events. Except as
otherwise set forth on Schedule 4.08 of the Company Disclosure Schedule, since
February 28, 1999, Company and the Company Subsidiaries have conducted their
businesses only in the ordinary course consistent with past practice and, since
such date, there has not been (i) any Company Material Adverse Effect, (ii) any
event that could reasonably be expected to prevent or materially delay the
performance of Company's obligations pursuant to this Agreement and the
consummation of the Merger by Company, (iii) any material change by Company in
its accounting methods, principles or practices, (iv) any declaration, setting
aside or payment of any dividend or distribution in respect of the shares of
Company Common Stock or any redemption, purchase or other acquisition of any of
Company's securities, (v) except in the ordinary course of business consistent
with past practice, any increase in the compensation or benefits or
establishment of any bonus, insurance, severance, deferred compensation,
pension, retirement, profit sharing, stock option (including, without
limitation, the granting of stock options, stock appreciation rights,
performance awards or restricted stock awards), stock purchase or other employee
benefit plan, or any other increase in the compensation payable or to become
payable to any executive officers of Company or any Company Subsidiary, (vi) any
issuance or sale of any stock, notes, bonds or other securities other than
pursuant to the exercise of outstanding securities, or entering into any
agreement with respect thereto, (vii) any amendment to the Company's certificate
of incorporation or bylaws, (viii) other than in the ordinary course of
business, any (x) purchase, sale, assignment or transfer of any material assets,
(y) mortgage, pledge or the institution of any lien, encumbrance or charge on
any material assets or properties, tangible or intangible, except for liens for
taxes not yet delinquent and such other liens, encumbrances or charges which do
not, individually or in the aggregate, have a Company Material Adverse Effect,
or (z) waiver of any rights of material value or cancellation or any material
debts or claims, (ix) any incurrence of any material liability (absolute or
contingent), except for current liabilities and obligations incurred in the
ordinary course of business consistent with past practice, (x) any incurrence of
any damage, destruction or similar loss, whether or not covered by insurance,
materially affecting the business or properties of Company or any Company
Subsidiary, or (xi) any entering into any transaction of a material nature other
than in the ordinary course of business, consistent with past practices.
SECTION 4.9. Employee Benefit Plans, Labor Matters.
(a) With respect to each employee benefit fund, plan, program, arrangement and
contract (including, without limitation, any "pension" plan, fund or
program, as defined in Section 3(2) of ERISA, and any "employee benefit
plan", as defined in Section 3(3) of ERISA) maintained, sponsored or
contributed to or required to be contributed to by Company or any Company
Subsidiary or other trade or business (whether or not incorporated) treated
as a single employer with Company (a "Company ERISA Affiliate") pursuant to
Code Section 414(b), (c), (m) or (o) is a party, or with respect to which
Company or any Company ERISA Affiliate could incur liability under Section
4069, 4212(c) or 4204 of ERISA or Section 412 of the Code, or to which
Company or any Company ERISA Affiliate is a party (the "Company Benefit
Plans"), Company has delivered or made available to Parent a true, complete
and correct copy of (i) such Company Benefit Plan and the most recent
summary plan description related to such Company Benefit Plan, if a summary
plan description is required therefor, (ii) each trust agreement or other
funding arrangement relating to such Company Benefit Plan, (iii) the most
recent annual report (Form 5500) filed with the IRS) with respect to such
Company Benefit Plan, (iv) the most recent actuarial report or financial
statement relating to such Company Benefit Plan and (v) the most recent
determination letter issued by the IRS with respect to such Company Benefit
Plan, if it is qualified under Section 401(a) of the Code. Neither Company
nor any Company Affiliate has any express or implied commitment, whether
legally enforceable or not, to modify, change or terminate any Company
Benefit Plan, other than with respect to a modification, change or
termination required by ERISA or the Code.
(b) Each Company Benefit Plan has been administered in all material respects in
accordance with its terms and all applicable laws, including, without
limitation, ERISA and the Code, and all contributions required to be made
under the terms of any of the Company Benefit Plans as of the date of this
Agreement have been timely made or have been reflected on the most recent
consolidated balance sheet filed or incorporated by reference in the
Company Reports prior to the date of this Agreement. With respect to the
Company Benefit Plans, no event has occurred and, to the knowledge of
Company, there exists no condition or set of circumstances in connection
with which Company or any Company ERISA Affiliate could be subject to any
material liability (other than for routine benefit liabilities) under the
terms of such Company Benefit Plans, ERISA, the Code or any other
applicable Law.
(c) Company on behalf of itself and all of the Company ERISA Affiliates hereby
represents that: (i)each Company Benefit Plan which is intended to be
qualified under Section 401(a) of the Code or Section 401(k) of the Code
has received or is currently awaiting receipt of a favorable determination
letter from the IRS as to its qualified status under the Code, and each
trust established in connection with any Company which is intended to be
exempt from federal income taxation under Section 501(a) of the Code has
received a determination letter from the IRS that it is so exempt, and to
Company's knowledge no fact or event has occurred since the date of such
determination letter from the IRS to adversely affect the qualified status
of any such Company Benefit Plan or the exempt status of any such trust;
(ii) to Company's knowledge there has been no prohibited transaction
(within the meaning of Section 406 of ERISA or Section 4975 of the Code)
with respect to any Company Benefit Plan; (iii) each Company Benefit Plan
can be amended, terminated or otherwise discontinued after the Effective
Time in accordance with its terms, without liability, other than (A)
liability for ordinary administrative expenses typically incurred in a
termination event or (B) if the Company Benefit Plan is a pension benefit
plan subject to Part 2 of Title I of ERISA, liability for the accrued
benefits as of the date of such termination (if and to the extent required
by ERISA) to the extent that either there are sufficient assets set aside
in a trust or insurance contract to satisfy such liability or such
liability is reflected on the most recent consolidated balance sheet filed
or incorporated by reference in the Company Reports prior to the date of
this Agreement. No suit, administrative proceeding, action or other
litigation has been brought, or to the knowledge of Company is threatened,
against or with respect to any such Company Benefit Plan, including any
audit or inquiry by the Internal Revenue Service or United States
Department of Labor (other than routine benefits claims).
(d) No Company Benefit Plan is a multiemployer pension plan (as defined in
Section 3(37) of ERISA) or other pension plan subject to Title IV of ERISA
and neither the Company nor any Company ERISA Affiliate has sponsored or
contributed to or been required to contribute to a multiemployer pension
plan or other pension plan subject to Title IV of ERISA. No material
liability under Title IV of ERISA has been incurred by Company or any
Company ERISA Affiliate that has not been satisfied in full, and no
condition exists that presents a material risk to Company or any Company
ERISA Affiliate of incurring or being subject (whether primarily, jointly
or secondarily) to a material liability thereunder. None of the assets of
Company or any Company ERISA Affiliate is, or may reasonably be expected to
become, the subject of any lien arising under ERISA or Section412(n) of the
Code.
(e) With respect to each Company Benefit Plan required to be set forth in the
Company Disclosure Schedule that is subject to Title IV or Part 3 of Title
I of ERISA or Section 412 of the Code, (i) no reportable event (within the
meaning of Section 4043 of ERISA, other than an event that is not required
to be reported before or within 30 days of such event) has occurred or is
expected to occur, (ii) there was not an accumulated funding deficiency
(within the meaning of Section 302 of ERISA or Section 412 of the Code),
whether or not waived, as of the most recently ended plan year of such
Company Benefit Plan; and (iii) there is no "unfunded benefit liability"
(within the meaning of Section 4001(a)(18) of ERISA).
(f) Company has scheduled on Schedule 4.09(f) of the Company Disclosure
Schedule and has delivered to Parent true, complete and correct copies of
(i) all employment agreements with officers and all consulting agreements
of Company and each Company ERISA Affiliate providing for annual
compensation in excess of $100,000, (ii) all severance plans, agreements,
programs and policies of Company and each Company ERISA Affiliate with or
relating to their respective employees, directors or consultants, and (iii)
all plans, programs, agreements and other arrangements of Company and each
Company ERISA Affiliate with or relating to their respective employees,
directors or consultants which contain "change of control" provisions.
Except as set forth in Schedule 4.09(f)of the Company Disclosure Schedule,
which discloses the Company's estimate of excess parachute payments based
on assumptions described therein, no payment or benefit which will be made
by Company or any Company ERISA Affiliate under any Company Benefit Plan or
other arrangement will constitute an excess parachute payment under Code
Section 280(G)(1), and the consummation of the transactions contemplated by
this Agreement will not individually or in conjunction with any other
possible event (including termination of employment) (i) entitle any
current or former employee orother service provider of Company or any
Company ERISA Affiliate to severance benefits or any other payment,
compensation or benefit (including forgiveness of indebtedness), except as
expressly provided by this Agreement, or (ii) accelerate the time of
payment or vesting, or increase the amount of compensation or benefit due
any such employee or service provider.
(g) Neither Company nor any Company Subsidiary is a party to any collective
bargaining or other labor union contract applicable to persons employed by
Company or any Company Subsidiary and no collective bargaining agreement is
being negotiated by Company or any Company Subsidiary. As of the date of
this Agreement, there is no labor dispute, strike or work stoppage against
Company or any Company Subsidiary pending or, to the knowledge of Company,
threatened which may interfere with the respective business activities of
Company or any Company Subsidiary. As of the date of this Agreement, to
the knowledge of Company, none of Company, any Company Subsidiary, or any
of their respective representatives or employees has committed any unfair
labor practice in connection with the operation of the respective
businesses of Company or any Company Subsidiary, and there is no charge or
complaint against Company or any Company Subsidiary by the National Labor
Relations Board or any comparable Governmental Entity pending or threatened
in writing.
(h) Except as required by Law, no Company Benefit Plan provides any of
the following retiree or post-employment benefits to any person:
medical, disability or life insurance benefits. To Company's
knowledge, Company and the Company ERISA Affiliates are in compliance with
(i) the requirements of the applicable health care continuation and
notice provisions of the Consolidated Omnibus Budget Reconciliation
Act of 1985 ("COBRA") and the regulations (including proposed
regulations) thereunder and (ii) the applicable requirements of the
Health Insurance Portability and Accountability Act of 1996 and the
regulations (including the proposed regulations) thereunder.
SECTION 4.10. Pooling; Certain Tax Matters. Neither Company
nor, to the knowledge of Company, any of its affiliates has taken or agreed to
take any action (other than actions contemplated by this Agreement) that could
reasonably be expected to prevent (a) the Merger from being treated for
accounting purposes as a "pooling of interests" in accordance with U.S. GAAP and
the accounting standards of the SEC or (b) the Merger from constituting a
"reorganization" under Section 368 of the Code. Company is not aware of any
agreement or plan to which Company or any of its affiliates is a party or other
circumstances relating to Company or any of its affiliates that could reasonably
be expected to prevent the Merger from being so treated as a "pooling of
interests" or from so qualifying as a reorganization under Section 368 of the
Code.
SECTION 4.11. Contracts. Schedule 4.11 of the Company
Disclosure Schedule sets forth a list of each contract or agreement that is
material to the business, assets, liabilities, financial condition or results of
operations of Company and Company Subsidiaries taken as a whole (each, a
"Material Contract"). Except as set forth in Schedule 4.11 of the Company
Disclosure Schedule, neither Company nor any Company Subsidiary is in material
violation of or default under (nor does there exist any condition which with the
passage of time or the giving of notice could reasonably be expected to cause
such a material violation of or default under) any Material Contract. Each
Material Contract is in full force and effect and is a legal, valid and binding
obligation of Company or a Company Subsidiary and, to the knowledge of Company,
each of the other parties thereto, enforceable in accordance with its terms,
except to the extent that enforceability thereof may be limited by applicable
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally and by principles of equity regarding
the availability of remedies.
SECTION 4.12. Litigation. There is no suit, claim, action,
proceeding or investigation pending or, to the knowledge of Company, threatened
against Company or any Company Subsidiary that could reasonably be expected to
have, individually or in the aggregate, a Company Material Adverse Effect or
materially interfere with Company's ability to consummate the transactions
contemplated herein. Company is not aware of any facts or circumstances which
could reasonably be expected to result in the denial of insurance coverage under
policies issued to Company and Company Subsidiaries in respect of such suits,
claims, actions, proceedings and investigations, except in any case as could not
reasonably be expected to have, individually or in the aggregate, a Company
Material Adverse Effect. Neither Company nor any Company Subsidiary is subject
to any outstanding order, writ, injunction or decree which could reasonably be
expected to have, individually or in the aggregate, a Company Material Adverse
Effect or materially interfere with Company's ability to consummate the
transactions contemplated herein.
SECTION 4.13. Environmental Matters. Except as could not
reasonably be expected to have, individually or in the aggregate, a Company
Material Adverse Effect, (i) Company and the Company Subsidiaries are in
compliance with all applicable Environmental Laws and all Company Permits
required by Environmental Laws; (ii) all past noncompliance of Company or any
Company Subsidiary with Environmental Laws or Environmental Permits has been
resolved without any pending, ongoing or future obligation, cost or liability;
and (iii) neither Company nor any Company Subsidiary has released a Hazardous
Material at, or transported a Hazardous Material to or from, any real property
currently or formerly owned, leased or occupied by Company or any Company
Subsidiary, in violation of any Environmental Law.
SECTION 4.14. Intellectual Property.
(a) All trademarks, trade names, service marks, trade dress, and all goodwill
associated with any of the foregoing, patents, Internet domain names,
copyrights and any renewal rights therefor, technology, supplier lists,
trade secrets, know-how, computer software programs or applications in both
source and object code form, technical documentation of such software
programs, registrations and applications for any of the foregoing and all
other tangible or intangible proprietary information or materials that are
or have been used (including without limitation in the development of)
Company's business and/or in any product, technology or process (i)
currently being or formerly manufactured, published or marketed by Company
or (ii) previously or currently under development for possible future
manufacturing, publication, marketing or other use by Company are herein-
after referred to as the "Company Intellectual Property."
(b) The Company Disclosure Schedule contains a true and complete list of
Company's patents, patent applications, trademarks, trademark applications,
trade names, service marks, service mark applications, Internet domain
names, Internet domain name applications, copyrights and copyright
registrations and applications all such existing worldwide, owned by
Company and includes details of all due dates for further filings,
maintenance, payments or other actions falling due within twelve (12)
months of the Closing Date. All of Company's patents, patent applications,
registered trademarks, and trademark applications, and registered
copyrights remain in good standing with all fees and filings due as of the
Closing Date duly made and the due dates specified in the Company
Disclosure Schedule are accurate and complete.
(c) The Company Intellectual Property consists solely of items and rights which
are: (i) owned by Company; or (ii) rightfully used by Company pursuant to a
valid license (the "Company Licensed Intellectual Property"), the parties
and date of each such license agreement and each material agreement in
which Company is the licensor or owner of the subject rights in the
agreement being set forth on Schedule 4.14(c) of the Company Disclosure
Schedule. Company has all rights in Company Intellectual Property
necessary to carry out Company's current activities (and had all rights
necessary to carry out its former activities at the time such activities
were being conducted), including without limitation, to the extent required
to carry out such activities, rights to make, use, reproduce, modify,
adopt, create derivative works based on, translate, distribute (directly
and indirectly), transmit, display and perform publicly, license, rent and
lease and, other than with respect to the Company Licensed Intellectual
Property, assign and sell, the Company Intellectual Property.
(d) The reproduction, manufacturing, distribution, licensing, sublicensing or
sale of any Company Intellectual Property, now used or offered or proposed
for use, licensing or sale by Company does not infringe on any patent,
copyright, trademark, service mark, trade name, trade dress, firm name,
Internet domain name, logo, trade dress, of any person and does not
constitute a misappropriation of any trade secret. No claims (i)
challenging the validity, effectiveness or ownership by Company of any of
the Company Intellectual Property, or (ii) to the effect that the use,
distribution, licensing, sublicensing or sale of the Company Intellectual
Property as now used or offered or proposed for use, licensing,
sublicensing or sale by Company infringes or will infringe on any
intellectual property or other proprietary right of any person have been
asserted or, to the knowledge of Company, are threatened by any person or
have been made or threatened by any person against the Company's
distributors. To the knowledge of Company, there is no unauthorized use,
infringement or misappropriation of any of the Company Intellectual
Property by any third party, employee or former employee.
(e) All Company Intellectual Property has been solely developed by full
time employees within the scope of his or her employment with the
Company. All employee contribution or participation in the conception
and development of the Company Intellectual Property on behalf of
Company constitutes work prepared by an employee within the scope of
his or her employment in accordance with applicable federal and state law
that has accorded Company ownership of all tangible and intangible
property thereby arising.
(f) Company is not, nor as a result of the execution or delivery of this
Agreement, or performance of Company's obligations hereunder,
will Company be, in violation of any material license, sublicense,
agreement or instrument to which Company is a party or otherwise bound,
nor will execution or delivery of this Agreement, or performance of
Company's obligations hereunder, cause the diminution, termination or
forfeiture of any material Company Intellectual Property, except for
violations, diminutions, terminations or forfeitures that would not
reasonably be expected to have a Company Material Adverse Effect.
(g) Schedule 4.14(g) of the Company Disclosure Schedule contains a true and
complete list of all of Company's internally-developed software
programs (the "Company Software Programs"). Company owns full and
unencumbered right and good, valid and marketable title to such
Company Software Programs and all material Company Intellectual
Property free and clear of all mortgages, pledges, liens, security
interests, conditional sales agreements or encumbrances.
(h) The source code and system documentation relating to the Company
Software Programs (i) have at all times been maintained in strict
confidence, (ii) have been disclosed by Company only to employees on a
need to know basis in connection with the performance of their
duties to Company, and (iii) to the Company's knowledge, have not
been disclosed to any third party.
(i) The Company Software Programs (i) have been designed to ensure year 2000
compatibility, which includes, but is not limited to, being able to provide
specific dates and calculate spans of dates within and between twentieth
century and twenty-first century, prior to, including and following January
1, 2000; (ii) operate and will operate in accordance with their
specifications and correctly process day and date calculations for dates
prior and up to December 31, 1999, and on and after January 1, 2000, prior
to, during and after the calendar year 2000; and (iii) shall not end
abnormally or provide invalid or incorrect results as a result of date
data, specifically including date data which represents or references
different centuries or more than one century.
(j) Except as set forth in the Company Disclosure Schedule, Company
does not owe any outstanding or past due royalties or other payments
to third parties in respect of Company Licensed Intellectual Property.
All royalties or other payments set forth in the Company Disclosure
Schedule that have accrued prior to the Closing Date have been paid.
(k) To the Company's knowledge, the Company Software Programs contain no
"viruses". For the purposes of this Agreement, "virus" means any
computer code intentionally designed to disrupt, disable or harm in
any manner the operation of any software or hardware.
SECTION 4.15. Taxes
(a) Company and each of Company Subsidiaries, and any consolidated, combined,
unitary or aggregate group for Tax purposes of which Company or any Company
Subsidiary is or has been a member, have properly completed and timely
filed all Tax Returns required to be filed by them and have paid all Taxes
shown thereon to be due. Company has provided adequate accruals in
accordance with generally accepted accounting principles in its February
28, 1999 balance sheet contained in the Company Reports (the "February 1999
Balance Sheet") for any Taxes that have not been paid, whether or not shown
as being due on any Tax Returns. Company and the Company Subsidiaries have
no material liability for unpaid Taxes accruing after February 28, 1999.
(b) There is (i) no material claim for Taxes that is a lien against the
property of Company or any Company Subsidiary or is being asserted against
Company or any Company Subsidiary other than liens for Taxes not yet due
and payable, (ii) no audit of any Tax Return of Company or any Company
Subsidiary being conducted by a Tax Authority; (iii) no extension of the
statute of limitations on the assessment of any Taxes granted by Company or
any Company Subsidiary and currently in effect, and (iv) no agreement,
contract or arrangement to which Company or any Company Subsidiary is a
party that may result in the payment of any amount that would not be
deductible by reason of Section 280G or Section 404 of the Code.
(c) There has been no change in ownership of Company or any Company
Subsidiaries that has caused the utilization of any losses of such
entities to be limited pursuant to Section 382 of the Code, and any
loss carryovers reflected on the February 1999 Balance Sheet are properly
computed and reflected.
(d) Company and the Company Subsidiaries have not been and will not be
required to include any material adjustment in taxable income for Tax
period (or portion thereof) pursuant to Section 481 or 263A of the Code
or any comparable provision under state or foreign Tax laws as a result of
transactions, events or accounting methods employed prior to the Merger.
(e) Neither Company nor any Company Subsidiary has filed or will file any
consent to have the provisions of Section 341(f)(2) of the Code (or
comparable provisions of any state Tax laws) apply to Company or any
Company Subsidiary.
(f) Neither Company nor any Company Subsidiary is a party to any Tax
sharing or Tax allocation agreement nor does Company or any Company
Subsidiary have any liability or potential liability to another party
under any such agreement.
(g) Neither Company nor any Company Subsidiary has filed any disclosures
under Section 6662 or comparable provisions of state, local or foreign law
to prevent the imposition of penalties with respect to any Tax reporting
position taken on any Tax Return.
(h) Neither Company nor any Company Subsidiary has ever been a member of a
consolidated, combined or unitary group of which Company was not the
ultimate parent corporation.
(i) Company and each Company Subsidiary has in its possession receipts for
any Taxes paid to foreign Tax authorities. Neither Company nor any Company
Subsidiary has ever been a "personal holding company" within the
meaning of Section 542 of the Code or a "United Sates real
property holding corporation" within the meaning of Section 897 of the
Code.
SECTION 4.16. Insurance. Company and each Company Subsidiary
is presently insured, and during each of the past five calendar years has been
insured, against such risks as companies engaged in a similar business would, in
accordance with good business practice, customarily be insured. The policies of
fire, theft, liability and other insurance maintained with respect to the assets
or businesses of Company and Company Subsidiaries provide reasonably adequate
coverage against loss. Company has heretofore furnished to Parent a complete and
correct list as of the date hereof of all insurance policies maintained by
Company or the Company Subsidiaries, and has made available to Parent complete
and correct copies of all such policies, together with all riders and amendments
thereto. All such policies are in full force and effect and all premiums due
thereon have been paid to the date hereof. Company and the Company Subsidiaries
have complied in all material respects with the terms of such policies.
SECTION 4.17. Properties. Company and the Company Subsidiaries
have good and valid title, free and clear of all Encumbrances, except for
Permitted Encumbrances, to all their material properties and assets, whether
tangible or intangible, real, personal or mixed, reflected in the Company's
consolidated financial statements contained in the Company's Annual Report on
Form 10-K for the period ended February 28, 1999 as being owned by Company and
the Company Subsidiaries as of the date thereof, other than (i) any properties
or assets that have been sold or otherwise disposed of in the ordinary course of
business since the date of such financial statements, (ii) liens disclosed in
the notes to such financial statements and (iii) liens arising in the ordinary
course of business after the date of such financial statements. All buildings,
and all fixtures, equipment and other property and assets that are material to
its business on a consolidated basis, held under leases or sub-leases by Company
or any Company Subsidiary are held under valid instruments enforceable in
accordance with their respective terms, subject to applicable laws of
bankruptcy, insolvency or similar laws relating to creditors' rights generally
and to general principles of equity (whether applied in a proceeding in law or
equity). Substantially all of Company's and the Company Subsidiaries' equipment
in regular use has been reasonably maintained and is in serviceable condition,
reasonable wear and tear excepted.
SECTION 4.18. Affiliates. Schedule 4.18 of the Company
Disclosure Schedule sets forth the names and addresses of each person who is, in
Company's reasonable judgment, an affiliate (as such term is used in Rule 145
under the Securities Act or under applicable SEC accounting releases with
respect to pooling of interests accounting treatment) of Company.
SECTION 4.19. Opinion of financial Advisor. Donaldson, Lufkin
& Jenrette ("Company Financial Advisor") has delivered to the board of directors
of Company its opinion to the effect that the Exchange Ratio to be received by
the holders of shares of Company Common Stock is fair to such holders from a
financial point of view.
SECTION 4.20. Brokers.
(a) No broker, finder or investment banker
(other than Company Financial Advisor) is
entitled to any brokerage, finder's or other
fee or commission in connection with the
Merger based upon arrangements made by or on
behalf of Company. Company has heretofore
made available to Parent true, complete and
correct copies of all agreements between
Company and Company Financial Advisor
pursuant to which such firm would be
entitled to any payment relating to the
Merger.
(b) Attached hereto as Schedule 4.20(b) of the
Company Disclosure Schedule are true,
complete and correct copies of all
agreements between Company and the Company
Financial Advisor. Other than as attached
hereto as Schedule 4.20(b) of the Company
Disclosure Schedule, there are no other
agreements between Company and the Company
Financial Advisor.
SECTION 4.21. Certain Business Practices. Neither Company nor
any Company Subsidiary nor any directors, officers, agents or employees of
Company or any Company Subsidiary (in their capacities as such) has (i) used any
funds for unlawful contributions, gifts, entertainment or other unlawful
expenses relating to political activity or (ii) made any unlawful payment to
foreign or domestic government officials or employees or to foreign or domestic
political parties or campaigns or violated any provision of the Foreign Corrupt
Practices Act of 1977, as amended.
SECTION 4.22. Section 912 of the NYBCL Not Applicable. The
Board of Directors of Company has approved the Merger and this Agreement, and
such approval is sufficient to render inapplicable to the Merger and this
Agreement and the transactions contemplated hereby the provisions of Section 912
of the NYBCL, assuming that Parent and its "associates" and "affiliates" (as
defined therein) collectively beneficially own, and have beneficially owned at
all times during the five (5) year period prior to the date hereof, less than
twenty percent (20%) of the Company Common Stock outstanding.
SECTION 4.23. Business Activity Restriction. Except as set
forth in Schedule 4.23 of the Company Disclosure Schedule, there is no
non-competition or other similar agreement, commitment, judgment, injunction,
order or decree to which Company or any subsidiary of Company is a party or
subject to that has or could reasonably be expected to have the effect of
prohibiting or impairing the conduct of business by Company. Company has not
entered into any agreement under which Company is restricted from selling,
licensing or otherwise distributing any of its technology or products to, or
providing services to, customers or potential customers or any class of
customers, in any geographic area, during any period of time or in any segment
of the market or line of business.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
OF PARENT AND MERGER SUB
Each of Parent and Merger Sub hereby represents and warrants
to Company, subject to the exceptions specifically disclosed in the Parent
Disclosure Schedule, all such exceptions to be referenced to a specific
representation set forth in this Article V, that:
SECTION 5.1. Organization and Qualification; Subsidiaries
(a) Parent and each directly and indirectly owned subsidiary of Parent,
including Merger Sub, (the "Parent Subsidiaries") has been duly organized
and is validly existing and in good standing (to the extent applicable)
under the laws of the jurisdiction of its incorporation or organization, as
the case may be, and has the requisite corporate power and authority and
all necessary governmental approvals to own, lease and operate its
properties and to carry on its business as it is now being conducted.
Parent and each Parent Subsidiary, including Merger Sub, is duly qualified
or licensed to do business, and is in good standing (to the extent
applicable), in each jurisdiction where the character of the properties
owned, leased or operated by it or the nature of its business makes such
qualification or licensing necessary, except for such failures to be so
qualified or licensed and in good standing that could not reasonably be
expected to have, individually or in the aggregate, a Parent Material
Adverse Effect.
(b) Schedule 5.01 of the Parent Disclosure Schedule sets forth, as of the date
of this Agreement, a true and complete list of each Parent Subsidiary,
together with (i) the jurisdiction of incorporation or organization of each
Parent Subsidiary and the percentage of each Parent Subsidiary's out-
standing capital stock or other equity interests owned by Parent or another
Parent Subsidiary and (ii) an indication of whether each Parent Subsidiary
is a "Significant Subsidiary" as defined in Regulation S-X under the
Exchange Act. Neither Parent nor any Parent Subsidiary owns an equity
interest in any partnership or joint venture arrangement or other business
entity hat is material to the business, assets, liabilities, financial
condition or results of operations of Parent and the Parent Subsidiaries,
taken as a whole.
SECTION 5.2. Certificate of Incorporation and Bylaws. The
copies of each of Parent's and Merger Sub's certificate of incorporation and
bylaws previously provided to Company by Parent are true, complete and correct
copies thereof. Such certificates of incorporation and bylaws are in full force
and effect. Parent is not in violation of any of the provisions of its
certificate of incorporation or bylaws.
SECTION 5.3. Capitalization.
(a) The authorized capital stock of Parent consists of 50,000,000 shares of
Parent Common Stock and 5,000,000 shares of preferred stock. As of the
date hereof (i) 21,843,891 shares of Parent Common Stock are issued and
outstanding, all of which are validly issued, fully paid and nonassessable,
(ii) no shares of Parent Common Stock are held in the treasury of Parent,
(iii) no shares of Parent Common Stock are held by the Parent Subsidiaries,
(iv) 3,088,425 shares of Parent Common Stock are reserved for future
issuance pursuant to outstanding options and warrants to purchase Parent
Common Stock ("Parent Stock Options"), (v) no shares of Parent preferred
stock are issued and outstanding and (vi) 750,000 shares of Parent Common
Stock are reserved for issuance pursuant to the Parent ESPP, of which no
shares have been issued. Except for the shares of Parent Common Stock
issuable pursuant to the Parent Stock Plans and the Parent ESPP, there are
no options, warrants or other rights, agreements, arrangements or
commitments of any character to which Parent is a party or by which Parent
is bound relating to the issued or unissued capital stock of Parent or any
Parent Subsidiary or obligating Parent or any Parent Subsidiary to issue or
sell any shares of capital stock of, or other equity interests in, Parent
or any Parent Subsidiary. All shares of Parent Common Stock subject to
issuance as aforesaid, upon issuance prior to the Effective Time on the
terms and conditions specified in the instruments pursuant to which they
are issuable, will be duly authorized, validly issued, fully paid and non-
assessable. There are no outstanding contractual obligations of Parent or
any Parent Subsidiary to repurchase, redeem or otherwise acquire any shares
of Parent Common Stock or any capital stock of any Parent Subsidiary. Each
outstanding share of capital stock of each Parent Subsidiary is duly
authorized, validly issued, fully paid and nonassessable and each such
share owned by Parent or another Parent Subsidiary is free and clear of all
security interests, liens, claims, pledges, options, rights of first
refusal, agreements, limitations on Parent's or such other Parent Sub-
sidiary's voting rights, charges and other encumbrances of any nature
whatsoever. There are no material outstanding contractual obligations of
Parent or any Parent Subsidiary to provide funds to, or make any
material investment (in the form of a loan, capital contribution or
otherwise) in, any Parent Subsidiary or any other person.
(b) The officers and directors of Parent, in the aggregate, own of record and
beneficially more than ten percent (10%) of the Parent Common Stock
outstanding, on a fully-diluted basis.
SECTION 5.4. Authority Relative to This Agreement. Each of
Parent and Merger Sub has all necessary corporate power and authority to execute
and deliver this Agreement, to perform its obligations hereunder to consummate
the transactions contemplated hereby. The execution and delivery of this
Agreement by each of Parent and Merger Sub and the consummation by Parent and
Merger Sub of the transactions contemplated hereby have been duly and validly
authorized by all necessary corporate action, and no other corporate proceedings
on the part of Parent or Merger Sub are necessary to authorize this Agreement or
to consummate such transactions (other than the approval of this Agreement and
the Merger by the holders of a majority of the outstanding shares of Parent
Common Stock present at the Parent Shareholders' Meeting and the consent of
Parent as sole shareholder of Merger Sub). This Agreement has been duly executed
and delivered by each of Parent and Merger Sub and, assuming the due
authorization, execution and delivery by Company, constitutes a legal, valid and
binding obligation of each of Parent and Merger Sub enforceable against Parent
and Merger Sub in accordance with its terms.
SECTION 5.5. No Conflict: Required Filings.
(a) The execution and delivery of this Agreement by Parent and Merger Sub does
not, and the performance by Parent and Merger Sub of their obligations
hereunder and the consummation of the Merger will not, (i) conflict with or
violate any provision of the articles of incorporation or bylaws of Parent
or any equivalent organizational documents of any Parent Subsidiary,
(ii) assuming that all consents, approvals, authorizations and permits
described in Section 5.05(b) have been obtained and all filings and
notifications described in Section 5.05(b) have been made, conflict with or
violate any Law applicable to Parent or any other Parent Subsidiary or by
which any property or asset of Parent or any Parent Subsidiary is bound or
affected or (iii) result in any breach of or constitute a default (or an
event which with the giving of notice or lapse of time or both could
reasonably be expected to become a default) under, or give to others any
right of termination, amendment, acceleration or cancellation of, or result
in the creation of a lien or other encumbrance on any property or asset of
Parent or any Parent Subsidiary pursuant to, any note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, franchise or other
instrument or obligation.
(b) The execution and delivery of this Agreement by Parent and Merger Sub does
not, and the performance by Parent and Merger Sub of their obligations
hereunder and the consummation of the Merger will not, require any
consent, approval, authorization or permit of, or filing by Parent
with or notification by Parent to, any Governmental Entity, except
pursuant to applicable requirements of the Exchange Act, the
Securities Act, Blue Sky Laws, the rules and regulations of the NNM,
the premerger notification requirements of the HSR Act, if any, and the
filing and recordation of the Certificate of Merger as required by the
DGCL.
SECTION 5.6. Permits; Compliance with Laws. Parent and the
Parent Subsidiaries are in possession of all franchises, grants, authorizations,
licenses, establishment registrations, product listings, permits, approvals and
orders of any Governmental Entity necessary for Parent or any Parent Subsidiary
to own, lease and operate its properties and assets or otherwise to carry on its
business as it is now being conducted (collectively, the "Parent Permits"), and,
as of the date of this Agreement, none of the Parent Permits has been suspended
or cancelled nor is any such suspension or cancellation pending or, to the
knowledge of Parent, threatened. Neither Parent nor any Parent Subsidiary is in
conflict with, or in default or violation of, (i) any Law applicable to Parent
or any Parent Subsidiary or by which any property or asset of Parent or any
Parent Subsidiary is bound or affected or (ii) any Parent Permits, except for
such conflicts, defaults or violations that could not reasonably be expected to
have, individually or in the aggregate, a Parent Material Adverse Effect.
Schedule 5.06 of the Parent Disclosure Schedule sets forth, as of the date of
this Agreement, all actions, proceedings, investigations or surveys pending or,
to the knowledge of Parent, threatened against Parent or any Parent Subsidiary
that could reasonably be expected to result in the suspension or cancellation of
any material Parent Permit. Since January 1, 1996, neither Parent nor any Parent
Subsidiary has received from any Governmental Entity any written notification
with respect to possible conflicts, defaults or violations of Laws.
SECTION 5.7. Absence of Certain Changes or Events. Except as
otherwise set forth on Schedule 5.07 of the Parent Disclosure Schedule, since
March 17, 1999, Parent and the Parent Subsidiaries have conducted their
businesses only in the ordinary course consistent with past practice and, since
such date, there has not been (i) any Parent Material Adverse Effect, (ii) any
event that could reasonably be expected to prevent or materially delay the
performance of Parent's obligations pursuant to this Agreement and the
consummation of the Merger by Parent, (iii) any material change by Parent in its
accounting methods, principles or practices, (iv) any declaration, setting aside
or payment of any dividend or distribution in respect of the shares of Parent
Common Stock or any redemption, purchase or other acquisition of any of Parent's
securities, (v) except in the ordinary course of business consistent with past
practice, any increase in the compensation or benefits or establishment of any
bonus, insurance, severance, deferred compensation, pension, retirement, profit
sharing, stock option (including, without limitation, the granting of stock
options, stock appreciation rights, performance awards or restricted stock
awards), stock purchase or other employee benefit plan, or any other increase in
the compensation payable or to become payable to any executive officers of
Parent or any Parent Subsidiary, (vi) any issuance or sale of any stock, notes,
bonds or other securities other than pursuant to the exercise of outstanding
securities, or entering into any agreement with respect thereto, (vii) any
amendment to the Parent's certificate of incorporation or bylaws, (viii) other
than in the ordinary course of business, any (x) purchase, sale, assignment or
transfer of any material assets, (y) mortgage, pledge or the institution of any
lien, encumbrance or charge on any material assets or properties, tangible or
intangible, except for liens for taxes not yet delinquent and such other liens,
encumbrances or charges which do not, individually or in the aggregate, have a
Parent Material Adverse Effect, or (z) waiver of any rights of material value or
cancellation or any material debts or claims, (ix) any incurrence of any
material liability (absolute or contingent), except for current liabilities and
obligations incurred in the ordinary course of business consistent with past
practice, (x) any incurrence of any damage, destruction or similar loss, whether
or not covered by insurance, materially affecting the business or properties of
Parent or any Parent Subsidiary, or (xi) any entering into any transaction of a
material nature other than in the ordinary course of business, consistent with
past practices.
SECTION 5.8. SEC Filings; Financial Statements.
(a) Parent has timely filed all forms, reports, statements and documents
required to be filed by it (A) with the SEC and the NNM since March 17,
1999 (collectively, together with any such forms, reports, statements and
documents Parent may file subsequent to the date hereof until the Closing,
the "Parent Reports") and (B) with any other Governmental Entities. Each
Parent Report (i) was prepared in accordance with the requirements of the
Securities Act, the Exchange Act or the NNM, as the case may be, and (ii)
did not at the time it was filed contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements made therein, in the light of the
circumstances under which they were made, not misleading. Each form,
report, statement and document referred to in clause (B) of this paragraph
was prepared in all material respects in accordance with the requirements
of applicable Law. No Parent Subsidiary is subject to the periodic
reporting requirements of the Exchange Act or required to file any form,
report or other document with the SEC, the NNM, any other stock exchange or
any other comparable Governmental Entity.
(b) Each of the consolidated financial statements (including, in each case, any
notes thereto)contained in the Parent Reports was prepared in accordance
with U.S. GAAP applied on a consistent basis throughout the periods
indicated (except as may be indicated in the notes thereto) and each
presented fairly the consolidated financial position of Parent and the
Parent Subsidiaries as at the respective dates thereof, and their
consolidated results of operations, stockholders' equity and cash flows for
the respective periods indicated therein, except as otherwise noted therein
(subject, in the case of unaudited statements, to normal and recurring
immaterial year-end adjustments).
(c) Except as and to the extent set forth or reserved against on the
consolidated balance sheet of Parent and the Parent Subsidiaries as of
December 31, 1998 as reported in the Parent Reports, none of Parent or any
Parent Subsidiary has any liabilities or obligations of any nature
(whether accrued, absolute, contingent or otherwise) that would be
required to be reflected on a balance sheet or in notes thereto
prepared in accordance with U.S. GAAP, except for liabilities or
obligations incurred in the ordinary course of business consistent with
past practice since December 31, 1998.
SECTION 5.9. Pooling; Certain Tax Matters. Neither Parent nor,
to the knowledge of Parent, any of its affiliates has taken or agreed to take
any action (other than actions contemplated by this Agreement) that could
reasonably be expected to prevent (a) the Merger from being treated for
accounting purposes as a "pooling of interests" in accordance with U.S. GAAP and
the accounting standards of the SEC or (b) the Merger from constituting a
"reorganization" under Section 368 of the Code. Parent is not aware of any
agreement, plan or other circumstance that could reasonably be expected to
prevent the Merger from being so treated as a "pooling of interests" or from so
qualifying as a reorganization under Section 368 of the Code.
SECTION 5.10. Litigation. There is no suit, claim, action,
proceeding or investigation pending or, to the knowledge of Parent, threatened
against Parent or any Parent Subsidiary that could reasonably be expected to
have, individually or in the aggregate, a Parent Material Adverse Effect or
materially interfere with Parent's ability to consummate the transactions
contemplated herein, and, to the knowledge of Parent, there are no existing
facts or circumstances that could reasonably be expected to result in such a
suit, claim, action, proceeding or investigation. Parent is not aware of any
facts or circumstances which could reasonably be expected to result in the
denial of insurance coverage under policies issued to Parent and Parent
Subsidiaries in respect of such suits, claims, actions, proceedings and
investigations, except in any case as could not reasonably be expected to have,
individually or in the aggregate, a Parent Material Adverse Effect. Neither
Parent nor any Parent Subsidiary is subject to any outstanding order, writ,
injunction or decree which could reasonably be expected to have, individually or
in the aggregate, a Parent Material Adverse Effect or materially interfere with
Parent's ability to consummate the transactions contemplated herein.
SECTION 5.11. Taxes. Parent and each of Parent Subsidiaries,
and any consolidated, combined, unitary or aggregate group for Tax purposes of
which Parent or any Parent Subsidiary is or has been a member, have properly
completed and timely filed all Tax Returns required to be filed by them and have
paid all Taxes shown thereon to be due. Parent has provided adequate accruals in
accordance with generally accepted accounting principles in its December 31,
1998 balance sheet contained in the Parent Reports for any Taxes that have not
been paid, whether or not shown as being due on any Tax Returns. Parent and the
Parent Subsidiaries have no material liability for unpaid Taxes accruing after
December 31, 1998.
SECTION 5.12. Brokers. No broker, finder or investment banker
(other than (BancBoston Robertson Stephens (the "Parent Financial Advisor")) is
entitled to any brokerage, finder's or other fee or commission in connection
with the Merger based upon arrangements made by or on behalf of Parent. Parent
has heretofore made available to Company true, complete and correct copies of
all agreements between Parent and Parent Financial Advisor pursuant to which
such firm would be entitled to any payment relating to the Merger.
SECTION 5.13. Certain Business Practices. Neither Parent nor
any Parent Subsidiary nor any directors, officers, agents or employees of Parent
or any Parent Subsidiary (in their capacities as such) has (i) used any funds
for unlawful contributions, gifts, entertainment or other unlawful expenses
relating to political activity or (ii) made any unlawful payment to foreign or
domestic government officials or employees or to foreign or domestic political
parties or campaigns or violated any provision of the Foreign Corrupt Practices
Act of 1977, as amended.
SECTION 5.14. Section 203 of the DGCL, Not Applicable. The
Board of Directors of Parent has approved the Merger and this Agreement, and
such approval is sufficient to render inapplicable to the Merger, to this
Agreement and the transactions contemplated hereby the provisions of Section 203
of the DGCL, assuming that Company and its "affiliates" (as defined therein)
collectively beneficially own, and have beneficially owned at all times during
the five (5) year period prior to the date hereof, less than twenty percent
(20%) of the Parent Common Stock outstanding.
SECTION 5.15. No Prior Activities. Except for liabilities
incurred in connection with its incorporation or organization, and consummation
of this Agreement and the transactions contemplated hereby, Merger Sub has not
incurred any liabilities, and has not engaged in any business or activities of
any type or kind whatsoever or entered into any agreements or arrangements with
any person or entity. Merger Sub is a wholly owned subsidiary of Parent.
SECTION 5.16. Employee Benefit Plans; Labor Matters.
(a) With respect to each employee benefit fund, plan, program, arrangement and
contract (including, without limitation, any "pension" plan, fund or
program, as defined in Section 3(2) of ERISA, and any "employee benefit
plan", as defined in Section 3(3) of ERISA) maintained, sponsored or
contributed to or required to be contributed to by Parent or any Parent
Subsidiary or other trade or business (whether or not incorporated) treated
as a single employer with Parent (a "Parent ERISA Affiliate") pursuant to
Code Section 414(b), (c), (m) or (o) is a party, or with respect to which
Parent or any Parent ERISA Affiliate could incur liability under Section
4069, 4212(c) or 4204 of ERISA or Section 412 of the Code, or to which
Parent or any Parent ERISA Affiliate is a party (the "Parent Benefit
Plans"), Parent has delivered or made available to Parent a true, complete
and correct copy of a summary of such Parent Benefit Plan.
(b) Each Parent Benefit Plan has been administered in all material respects in
accordance with its terms and all applicable laws, including, without
limitation, ERISA and the Code, and all contributions required to be made
under the terms of any of the Parent Benefit Plans as of the date of this
Agreement have been timely made or have been reflected on the most recent
consolidated balance sheet filed or incorporated by reference in the Parent
Reports prior to the date of this Agreement. With respect to the Parent
Benefit Plans, no event has occurred and, to the knowledge of Parent, there
exists no condition or set of circumstances in connection with which Parent
or any Parent ERISA Affiliate could be subject to any material liability
(other than for routine benefit liabilities) under the terms of such Parent
Benefit Plans, ERISA, the Code or any other applicable Law.
(c) Parent on behalf of itself and all of the Parent ERISA Affiliates hereby
represents that: (i)each Parent Benefit Plan which is intended to be
qualified under Section 401(a) of the Code or Section 401(k) of the Code
has received a favorable determination letter from the IRS as to its
qualified status under the Code, and each trust established in connection
with any Parent which is intended to be exempt from federal income taxation
under Section 501(a) of the Code has received a determination letter from
the IRS that it is so exempt, and to Parent's knowledge no fact or event
has occurred since the date of such determination letter from the IRS to
adversely affect the qualified status of any such Parent Benefit Plan or
the exempt status of any such trust; and (ii)to Parent's knowledge there
has been no prohibited transaction (within the meaning of Section 406 of
ERISA or Section 4975 of the Code) with respect to any Parent Benefit Plan.
No suit, administrative proceeding, action or other litigation has been
brought, or to the knowledge of Parent is threatened, against or with
respect to any such Parent Benefit Plan, including any audit or inquiry by
the Internal Revenue Service or United States Department of Labor (other
than routine benefits claims).
(d) No Parent Benefit Plan is a multiemployer pension plan (as defined in
Section 3(37) of ERISA) or other pension plan subject to Title IV of ERISA
and neither the Parent nor any Parent ERISA Affiliate has sponsored or
contributed to or been required to contribute to a multiemployer pension
plan or other pension plan subject to Title IV of ERISA. No material
liability under Title IV of ERISA has been incurred by Parent or any Parent
ERISA Affiliate that has not been satisfied in full, and no condition
exists that presents a material risk to Parent or any Parent ERISA
Affiliate of incurring or being subject (whether primarily, jointly or
secondarily) to a material liability thereunder. None of the assets of
Parent or any Parent ERISA Affiliate is, or may reasonably be expected to
become, the subject of any lien arising under ERISA or Section 412(n) of
the Code.
(e) With respect to each Parent Benefit Plan that is subject to Title IV
or Part 3 of Title I of ERISA or Section 412 of the Code, (i) no reportable
event (within the meaning of Section 4043 of ERISA, other than an
event that is not required to be reported before or within 30 days of
such event) has occurred or is expected to occur, (ii) there was not an
accumulated funding deficiency (within the meaning of Section 302 of
ERISA or Section 412 of the Code), whether or not waived, as of the most
recently ended plan year of such Parent Benefit Plan; and (iii) there is
no "unfunded benefit liability" (within the meaning of Section 4001(a)
(18)of ERISA).
(f) Neither Parent nor any Parent Subsidiary is a party to any collective
bargaining or other labor union contract applicable to persons employed by
Parent or any Parent Subsidiary and no collective bargaining agreement is
being negotiated by Parent or any Parent Subsidiary. As of the date of
this Agreement, there is no labor dispute, strike or work stoppage against
Parent or any Parent Subsidiary pending or, to the knowledge of Parent,
threatened which may interfere with the respective business activities of
Parent or any Parent Subsidiary. As of the date of this Agreement, to the
knowledge of Parent, none of Parent, any Parent Subsidiary, or any of their
respective representatives or employees has committed any unfair labor
practice in connection with the operation of the respective businesses of
Parent or any Parent Subsidiary, and there is no charge or complaint
against Parent or any Parent Subsidiary by the National Labor Relations
Board or any comparable Governmental Entity pending or threatened in
writing.
(g) Except as required by Law, no Parent Benefit Plan provides any of the
following retiree benefits to any person: medical, disability or life
insurance benefits. To Parent's knowledge, Parent and the Parent
ERISA Affiliates are in material compliance with (i) the requirements
of the applicable health care continuation and notice provisions
of the Consolidated Omnibus Budget Reconciliation Act of 1985
("COBRA") and the regulations (including proposed regulations)
thereunder and (ii) the applicable requirements of the Health
Insurance Portability and Accountability Act of 1996 and the regulations
(including the proposed regulations) thereunder.
SECTION 5.17. Intellectual Property.
(a) All trademarks, trade names, service marks, trade dress, and all goodwill
associated with any of the foregoing, patents, Internet domain names,
copyrights and any renewal rights therefor, technology, supplier lists,
trade secrets, know-how, computer software programs or applications in
both source and object code form, technical documentation of such software
programs, registrations and applications for any of the foregoing and all
other tangible or intangible proprietary information or materials that are
or have been used (including without limitation in the development of)
Parent's business and/or in any product, technology or process (i)
currently being or formerly manufactured, published or marketed by Parent
or (ii) previously or currently under development for possible future
manufacturing, publication, marketing or other use by Parent are
hereinafter referred to as the "Parent Intellectual Property."
(b) Parent has all rights in Parent Intellectual Property necessary to carry
out Parent's current activities. No claims have been asserted or
threatened against Parent that challenge the validity or ownership of any
Parent Intellectual Property or allege that the use, reproduction,
manufacturing, distribution, licensing, sublicensing or sale of Parent
Intellectual Property infringes on any intellectual property or proprietary
right of any person or constitutes a misappropriation of any trade secret.
All of Parent's patents, patent applications, registered trademarks and
trademark applications and registered copyrights are in good standing with
all fees and filings due as of the Closing Date duly made. Parent owns
full and unencumbered rights and good, valid and marketable title to all of
Parent's internally developed software.
ARTICLE VI.
COVENANTS
SECTION 6.1. Conduct of Business by Company Pending the
Closing. Company agrees that, between the date of this Agreement and the
Effective Time, unless Parent shall otherwise agree in writing, (x) the
respective businesses of Company and the Company Subsidiaries shall be conducted
only in, and Company and the Company Subsidiaries shall not take any action
except in, the ordinary course of business consistent with past practice and (y)
Company shall use all reasonable efforts to keep available the services of such
of the current officers, significant employees and consultants of Company and
the Company Subsidiaries and to preserve the current relationships of Company
and the Company Subsidiaries with such of the corporate partners, customers,
suppliers and other persons with which Company or any Company Subsidiary has
significant business relations in order to preserve substantially intact its
business organization. Without limitation, neither Company nor any Company
Subsidiary shall, between the date of this Agreement and the Effective Time,
directly or indirectly, do, or agree to do, any of the following without the
prior written consent of Parent:
amend or otherwise change its certificate of incorporation or bylaws or
equivalent organizational documents;
issue, sell, pledge, dispose of, grant, transfer, lease,
license, guarantee or encumber, or authorize the issuance, sale,
pledge, disposition, grant, transfer, lease, license or encumbrance of,
(i) any shares of capital stock of Company or any Company Subsidiary of
any class, or securities convertible into or exchangeable or
exercisable for any shares of such capital stock, or any options,
warrants or other rights of any kind to acquire any shares of such
capital stock, or any other ownership interest (including, without
limitation, any phantom interest), of Company or any Company
Subsidiary, other than the issuance of shares of Company Common Stock
pursuant to the exercise of stock options therefor outstanding as of
the date of this Agreement or (ii) any material property or assets of
Company or any Company Subsidiary except (A) transactions pursuant to
existing contracts, (B) dispositions, leases or licenses of inventory
in the ordinary course of business consistent with past practice and
(C) shares of Company Common Stock issued pursuant to the Company ESPP
in the ordinary course of business consistent with past practice;
(i) acquire (including, without
limitation, by merger, consolidation, or
acquisition of stock or assets) any
interest in any corporation, partnership,
other business organization or person or
any division thereof, other than the
purchase of assets in the ordinary course
of business consistent with past practice;
(ii) incur any indebtedness for borrowed
money (other than indebtedness with
respect to working capital in amounts
consistent with past practice) or issue
any debt securities or assume, guarantee
or endorse, or otherwise as an
accommodation become responsible for, the
obligations of any person (other than a
Company Subsidiary) for borrowed money or
make any loans or advances material to the
business, assets, liabilities, financial
condition or results of operations of
Company and the Company Subsidiaries,
taken as a whole; (iii) terminate, cancel
or request any material change in, or
agree to any material change in, any
Company Material Contract or other License
Agreement, in each case other than in the
ordinary course of business consistent
with past practice; (iv) make or authorize
any capital expenditure, other than
capital expenditures in the ordinary
course of business consistent with past
practice that have been budgeted for
fiscal year 2000 and disclosed in writing
to Parent and that are not, in the
aggregate, in excess of $625,000 for
Company and the Company Subsidiaries taken
as a whole; or (v) enter into or amend any
contract, agreement, commitment or
arrangement that, if fully performed,
would not be permitted under this Section
6.01(c);
declare, set aside, make or pay any dividend or other
distribution, payable in cash, stock, property or otherwise, with
respect to any of its capital stock, except that any Company Subsidiary
may pay dividends or make other distributions to Company or any other
Company Subsidiary;
reclassify, combine, split, subdivide or redeem, purchase or
otherwise acquire, directly or indirectly, any of its capital stock
except repurchases of unvested shares at cost in connection with the
termination of the employment relationship with any employee pursuant
to stock option or purchase agreements in effect on the date hereof;
amend or change the period (or permit any acceleration,
amendment or change) of exercisability of options granted under the
Company Stock Plans or authorize cash payments in exchange for any
Company Stock Options granted under any of such plans;
amend the terms of, repurchase, redeem or otherwise acquire,
or permit any Company Subsidiary to repurchase, redeem or otherwise
acquire, any of its securities or any securities of any Company
Subsidiary;
increase the compensation payable or to become payable to its
directors, officers, consultants or employees, grant any rights to
severance or termination pay to, or enter into any employment or
severance agreement which provides benefits upon a change in control of
Company that would be triggered by the Merger with, any director,
officer, consultant or other employee of Company or any Company
Subsidiary who is not currently entitled to such benefits from the
Merger, establish, adopt, enter into or amend any collective
bargaining, bonus, profit sharing, thrift, compensation, stock option,
restricted stock, pension, retirement, deferred compensation,
employment, termination, severance or other plan, agreement, trust,
fund, policy or arrangement for the benefit of any director, officer,
consultant or employee of Company or any Company Subsidiary, except to
the extent required by applicable Law or the terms of a collective
bargaining agreement, or enter into or amend any contract, agreement,
commitment or arrangement between Company or any Company Subsidiary and
any of Company's directors, officers, consultants or employees, except
for increases in compensation paid to persons who are not directors or
officers of Company in the ordinary course of business consistent with
past practice;
(a) pay, discharge or satisfy any claims,
liabilities or obligations (absolute,
accrued, asserted or unasserted, contingent
or otherwise), other than the payment,
discharge or satisfaction of claims,
liabilities or obligations (A) in the
ordinary course of business and consistent
with past practice or (B) claims,
liabilities or obligations reflected on the
February 1999 Balance Sheet or (C) as
otherwise set forth on Schedule 6.01 of the
Company Disclosure Schedule;
(b) except as required by any Governmental
Entity, make any material change with
respect to Company's accounting policies,
principles, methods or procedures,
including, without limitation, revenue
recognition policies, other than as required
by U.S. GAAP;
(c) make any material Tax election or settle or
compromise any material Tax liability; or
(d) authorize or enter into any formal or
informal agreement or otherwise make any
commitment to do any of the foregoing or to
take any action which would make any of the
representations or warranties of Company
contained in this Agreement untrue or
incorrect or prevent Company from performing
or cause Company not to perform its
covenants hereunder or result in any of the
conditions to the Merger set forth herein
not being satisfied.
SECTION 6.2. Notices of Certain Events. Each of Parent and
Company shall give prompt notice to the other of (i) any notice or other
communication from any person alleging that the consent of such person is or may
be required in connection with the Merger; (ii) any notice or other
communication from any Governmental Entity in connection with the Merger; (iii)
any actions, suits, claims, investigations or proceedings commenced or, to its
knowledge, threatened against, relating to or involving or otherwise affecting
Parent or the Parent Subsidiaries or Company or the Company Subsidiaries,
respectively, which, if pending on the date hereof, would have been required to
have been disclosed in this Agreement, or that relate to the consummation of the
Merger; (iv) the occurrence of a default or event that, with the giving of
notice or lapse of time or both, will become a default under any Parent Material
Contract or Company Material Contract, respectively; and (v) any change that
could reasonably be expected to have a Parent Material Adverse Effect or a
Company Material Adverse Effect, respectively, or to delay or impede the ability
of either Parent or Company, respectively, to perform their respective
obligations pursuant to this Agreement and to effect the consummation of the
Merger.
SECTION 6.3. Access to Information; Confidentiality.
(a) Except as required pursuant to any confidentiality agreement or similar
agreement or arrangement to which Parent or Company or any of the Parent
Subsidiaries or the Company Subsidiaries is a party or pursuant to
applicable Law or the regulations or requirements of any stock exchange or
other regulatory organization with whose rules a party hereto is required
to comply, from the date of this Agreement to the Effective Time, Parent
and Company shall (and shall cause the Parent Subsidiaries and Company
Subsidiaries, respectively, to) (i) provide to the other (and its officers,
directors, employees, accountants, consultants, legal counsel, agents and
other representatives (collectively, "Representatives")) access at
reasonable times upon prior notice to its and its subsidiaries' officers,
employees, agents, properties, offices and other facilities and to the
books and records thereof, and (ii) furnish promptly such information
concerning its and its subsidiaries' business, properties, contracts,
assets, liabilities and personnel as the other party or its Representatives
may reasonably request. No investigation conducted pursuant to this
Section 6.03 shall affect or be deemed to modify any representation or
warranty made in this Agreement.
(b) The parties hereto shall comply with, and shall cause their respective
Representatives to comply with, all of their respective obligations
under the Confidentiality Agreement with respect to the information
disclosed pursuant to this Section 6.03.
SECTION 6.4. No solicitation of Transaction.
(a) Company shall not, directly or indirectly, and shall cause its
Representatives not to, directly or indirectly, solicit, initiate or
encourage (including by way of furnishing nonpublic information), any
inquiries or the making of any proposal or offer (including, without
limitation, any proposal or offer to its stockholders) that constitutes,
or may reasonably be expected to lead to, any Company Competing
Transaction, or enter into or maintain or continue discussions or negotiate
with any person in furtherance of such inquiries or to obtain a Company
Competing Transaction, or agree to or endorse any Company Competing
Transaction, or authorize or permit any of Company's Representatives or
subsidiaries, or any Representative retained by Company's subsidiaries, to
take any such action; provided, however, that nothing contained in this
Section 6.04 shall prohibit the board of directors of Company (i) from
complying with Rule 14d-9 or 14e-2(a) promulgated under the Exchange Act
with regard to a tender or exchange offer not made in violation of this
Section 6.04 or (ii) prior to receipt of the approval by the stockholders
of Company of this Agreement and the Merger from providing information
(subject to a confidentiality agreement at least as restrictive as the
Confidentiality Agreement) in connection with, and negotiating, another un-
solicited, bona fide written proposal regarding a Company Competing
Transaction that (i) Company's board of directors shall have concluded in
good faith, after considering applicable state law, on the basis of advice
of independent outside counsel of nationally recognized reputation, that
failure to take such action would not be a proper exercise of the Company's
board of directors' fiduciary duties to Company's stockholders under
applicable law, (ii) if any cash consideration is involved, shall not be
subject to any financing contingency, and with respect to which Company's
board of directors shall have determined in the proper exercise of its
fiduciary duties to Company's stockholders that the acquiring party is
capable of consummating such Company Competing Transaction on the terms
proposed, and (iii) Company's board of directors shall have determined
(based upon the opinion of Company's independent financial advisors of
nationally recognized reputation) in the proper exercise of its fiduciary
duties to Company's stockholders that such Company Competing Transaction
provides greater value to the stockholders of Company than the Merger (and
Company's independent financial advisors of nationally recognized reputa-
tion opine in writing that such Company Competing Transaction is superior
from a financial point of view) (any such Company Competing Transaction
being referred to herein as a "Company Superior Proposal"). Company shall
notify Parent promptly if any proposal or offer, or any inquiry or contact
with any person with respect thereto, regarding a Company Competing
Transaction is made, such notice to include the identity of the person
making such proposal, offer, inquiry or contact, and the terms of such
Company Competing Transaction. Company immediately shall cease and cause
to be terminated all existing discussions or negotiations with any parties
conducted heretofore with respect to a Company Competing Transaction.
Company shall not release any third party from, or waive any provision of,
any confidentiality or standstill agreement to which it is a party.
(b) Parent shall not, directly or indirectly, and shall cause its Representa-
tives not to, directly or indirectly, solicit, initiate or encourage
(including by way of furnishing nonpublic information), any inquiries or
the making of any proposal or offer (including, without limitation, any
proposal or offer to its stockholders) that constitutes, or may reasonably
be expected to lead to, any Parent Competing Transaction, or enter into or
maintain or continue discussions or negotiate with any person in
furtherance of such inquiries or to obtain a Parent Competing Transaction,
or agree to or endorse any Parent Competing Transaction, or authorize or
permit any of Parent's Representatives or subsidiaries, or any
Representative retained by Parent's subsidiaries, to take any such action;
provided, however, that nothing contained in this Section 6.04 shall
prohibit the board of directors of Parent (i) from complying with Rule
14d-9 or 14e-2(a) promulgated under the Exchange Act with regard to a
tender or exchange offer not made in violation of this Section 6.04 or (ii)
prior to receipt of the approval by the stockholders of Parent of this
Agreement and the Merger from providing information (subject to a
confidentiality agreement at least as restrictive as the Confidentiality
Agreement) in connection with, and negotiating, another unsolicited, bona
fide written proposal regarding a Parent Competing Transaction that (i)
Parent's board of directors shall have concluded in good faith, after
considering applicable state law, on the basis of advice of independent
outside counsel of nationally recognized reputation, that failure to take
such action would not be a proper exercise of the Parent's board of
directors' fiduciary duties to Parent's stockholders under applicable law,
(ii) if any cash consideration is involved, shall not be subject to any
financing contingency, and with respect to which Parent's board of
directors shall have determined in the proper exercise of its fiduciary
duties to Parent's stockholders that the acquiring party is capable of
consummating such Parent Competing Transaction on the terms proposed, and
(iii) Parent's board of directors shall have determined (based upon the
opinion of Parent's independent financial advisors of nationally recognized
reputation) in the proper exercise of its fiduciary duties to Parent's
stockholders that such Parent Competing Transaction provides greater value
to the stockholders of Parent than the Merger (and Parent's independent
financial advisors of nationally recognized reputation opine in writing
that such Parent Competing Transaction is superior from a financial point
of view) (any such Parent Competing Transaction being referred to herein as
a "Parent Superior Proposal"). Parent shall notify Company promptly if any
proposal or offer, or any inquiry or contact with any person with respect
thereto, regarding a Parent Competing Transaction is made, such notice to
include the identity of the person making such proposal, offer, inquiry or
contact, and the terms of such Parent Competing Transaction. Parent
immediately shall cease and cause to be terminated all existing discussions
or negotiations with any parties conducted heretofore with respect to a
Parent Competing Transaction. Parent shall not release any third party
from, or waive any provision of, any confidentiality or standstill
agreement to which it is a party.
SECTION 6.5. Tax-Free Transaction; Pooling.
(a) From and after the date of this Agreement,
each party hereto shall use all reasonable
efforts to cause the Merger to qualify, and
shall not knowingly take any actions or
cause any actions to be taken which could
reasonably be expected to prevent the Merger
from (a) qualifying as a "reorganization"
under Section 368(a) of the Code or (b)
being treated for financial accounting
purposes as a "pooling of interests" in
accordance with U.S. GAAP and the accounting
standards of the SEC.
(b) Parent shall execute and deliver a
certificate, in form reasonably acceptable
to Company, signed by an officer of Parent,
setting forth factual representations and
covenants that will serve as a basis for the
tax opinion required under Section 8.02(c)
hereof.
SECTION 6.6. Control of Operations. Nothing contained in this
Agreement shall give Parent, directly or indirectly, the right to control or
direct the operations of Company and the Company Subsidiaries prior to the
Effective Time. Prior to the Effective Time, Company shall exercise, consistent
with the terms and conditions of this Agreement, complete control and
supervision over its operations.
SECTION 6.7. Further Action; Consents; Filings.
(a) Upon the terms and subject to the conditions hereof, each of the parties
hereto shall use all reasonable efforts to (i) take, or cause to be taken,
all appropriate action, and do, or cause to be done, all things necessary,
proper or advisable under applicable Law or otherwise to consummate and
make effective the Merger, (ii) obtain from Governmental Entities any con-
sents, licenses, permits, waivers, approvals, authorizations or orders
required to be obtained or made by Parent or Company or any of their
respective subsidiaries in connection with the authorization, execution
and delivery of this Agreement and the consummation of the Merger and (iii)
make all necessary filings, and thereafter make any other required or
appropriate submissions, with respect to this Agreement and the Merger
required under (A) the rules and regulations of the NNM and the NSCM,(B)
the Securities Act, the Exchange Act and any other applicable Federal or
state securities Laws, (C) the HSR Act, if any, and (D) any other
applicable Law. The parties hereto shall cooperate and consult with each
other in connection with the making of all such filings, including by pro-
viding copies of all such documents to the nonfiling parties and their
advisors prior to filing, and none of the parties shall file any such
document if any of the other parties shall have reasonably objected to the
filing of such document. No party shall consent to any voluntary extension
of any statutory deadline or waiting period or to any voluntary delay of
the consummation of the Merger at the behest of any Governmental Entity
without the consent and agreement of the other parties hereto, which
consent shall not be unreasonably withheld or delayed.
(b) Each of Company and Parent will give (or will cause their respective
subsidiaries to give) any notices to third persons, and use, and cause
their respective subsidiaries to use, reasonable efforts to obtain
any consents from third persons necessary, proper or advisable to
consummate the transactions contemplated by this Agreement.
SECTION 6.8. Additional Reports. Company and Parent shall each
furnish to the other copies of any reports of the type referred to in Sections
4.07 and 5.06, which it files with the SEC on or after the date hereof, and
Company and Parent, as the case may be, covenant and warrant that as of the
respective dates thereof, such reports will not contain any untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. Any unaudited consolidated interim
financial statements included in such reports (including any related notes and
schedules) will fairly present the financial position of Company and its
consolidated subsidiaries or Parent and its consolidated subsidiaries, as the
case may be, as of the dates thereof and the results of operations and changes
in financial position or other information including therein for the periods or
as of the date then ended (subject, where appropriate, to normal year-end
adjustments), in each case in accordance with past practice and U.S. GAAP
consistently applied during the periods involved (except as otherwise disclosed
in the notes thereto).
SECTION 6.9. Tax Information. Company shall provide the
following information to Parent not later than two weeks after the date of this
Agreement: (i) a complete list of the types of Tax Returns being filed by
Company and each Company Subsidiary in each taxing jurisdiction, (ii) a list of
all closed years with respect to each such type of Tax Return filed in each
jurisdiction, and (iii) a list of any deferred intercompany gain with respect to
transactions to which Company or any Company Subsidiary has been a party.
Company shall provide Parent and its accountants, counsel and other
representatives reasonable access, during normal business hours during the
period prior to the Effective Time, to all of Company's and Company
Subsidiaries' Tax Returns and other records and workpapers relating to Taxes.
ARTICLE VII.
ADDITIONAL AGREEMENTS
SECTION 7.1. Registration Statement; Joiht Proxy Statement.
(a) As promptly as practicable after the execution of this Agreement, Parent
and Company shall jointly prepare and shall file with the SEC a document or
documents that will constitute (i) the prospectus forming part of the
registration statement on Form S-4 of Parent (together with all amendments
thereto, the "Registration Statement"), in connection with the registration
under the Securities Act of Parent Common Stock to be issued to Company's
stockholders pursuant to the Merger and (ii) the joint proxy statement with
respect to the Merger relating to the special meetings of Company's stock-
holders to be held to consider approval of this Agreement and the Merger
(the "Company Stockholders' Meeting") and of Parent's stockholders to be
held to consider approval of the issuance of Parent Common Stock (the
"Share Issuance") to Company's stockholders pursuant to the Merger (the
"Parent Stockholders' Meeting") (together with any amendments thereto, the
"Joint Proxy Statement"). Copies of the Joint Proxy Statement shall be
provided to the NNM in accordance with its rules. Each of the parties
hereto shall use all reasonable efforts to cause the Registration Statement
to become effective as promptly as practicable after the date hereof, and,
prior to the effective date of the Registration Statement, the parties
hereto shall take all action required under any applicable Laws in
connection with the issuance of shares of Parent Common Stock pursuant to
the Merger. Parent or Company, as the case may be, shall furnish all
information concerning Parent or Company as the other party may reasonably
request in connection with such actions and the preparation of the
Registration Statement and the Joint Proxy Statement. Each of Parent and
Company shall notify the other of the receipt of any comments from the SEC
on the Registration Statement and the Joint Proxy Statement and of any
requests by the SEC for any amendments or supplements thereto or for
additional information and shall provide to each other promptly copies of
all correspondence between Parent, Company or any of their representatives
and advisors and the SEC. As promptly as practicable after the effective
date of the Registration Statement, the Joint Proxy Statement shall be
mailed to the stockholders of Company and of Parent. Each of the parties
hereto shall cause the Joint Proxy Statement to comply as to form and
substance as to such party in all material respects with the applicable
requirements of (i) the Exchange Act, (ii) the Securities Act, (iii) the
rules and regulations of the NNM.
(b) The Joint Proxy Statement shall include (i) the approval of the
Merger and the recommendation of the board of directors of Company to
Company's stockholders that they vote in favor of approval of this
Agreement and the Merger, and (ii) the opinion of Company Financial
Advisor referred to in Section 4.19. The Joint Proxy Statement
shall include the approval of the Share Issuance and the
recommendation of the board of directors of Parent to Parent's
stockholders that they vote in favor of approval of the Share
Issuance.
(c) No amendment or supplement to the Joint Proxy Statement or the Registration
Statement shall be made without the approval of Parent and Company, which
approval shall not be unreasonably withheld or delayed. Each of the
parties hereto shall advise the other parties hereto, promptly after it
receives notice thereof, of the time when the Registration Statement has
become effective or any supplement or amendment has been filed, of the
issuance of any stop order, of the suspension of the qualification of the
Parent Common Stock issuable in connection with the Merger for offering
or sale in any jurisdiction, or of any request by the SEC for amendment of
the Joint Proxy Statement or the Registration Statement or comments thereon
and responses thereto or requests by the SEC for additional information.
(d) None of the information supplied by Company for inclusion or incorporation
by reference in the Registration Statement or the Joint Proxy Statement
shall, at the respective times filed with the SEC or other regulatory
agency and, in addition, (A) in the case of the Joint Proxy Statement, at
the date it or any amendments or supplements thereto are mailed to stock-
holders of Parent and Company, at the time of the Company Stockholders'
Meeting, at the time of the Parent Shareholders' Meeting and at the
Effective Time and (B) in the case of the Registration Statement, when it
becomes effective under the Securities Act and at the Effective Time,
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they are
made, not misleading. If at any time prior to the Effective Time any event
or circumstance relating to Company or any Company Subsidiary, or their
respective officers or directors, should be discovered by Company that
should be set forth in an amendment or a supplement to the Registration
Statement or the Joint Proxy Statement, Company shall promptly inform
Parent. All documents that Company is responsible for filing with the SEC
in connection with the Merger will comply as to form in all material
respects with the applicable requirements of the rules and regulations of
the Securities Act and the Exchange Act.
(e) None of the information supplied by Parent for inclusion or incorporation
by reference in the Registration Statement or the Joint Proxy Statement
shall, at the respective times filed with the SEC or other regulatory
agency and, in addition, (A) in the case of the Joint Proxy Statement, at
the date it or any amendments or supplements thereto are mailed to stock-
holders of Parent and Company, at the time of Company Stockholders'
meeting, at the time of the Parent Shareholders' Meeting and at the
Effective Time and (B) in the case of the Registration Statement, when it
becomes effective under the Securities Act and at the Effective Time,
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they are
made, not misleading. If, at any time prior to the Effective Time, any
event or circumstance relating to Parent or any Parent Subsidiary, or their
respective officers or directors, should be discovered by Parent that
should be set forth in an amendment or a supplement to the Registration
Statement or the Joint Proxy Statement, Parent shall promptly inform
Company. All documents that Parent is responsible for filing with the SEC
in connection with the Merger will comply as to form in all material
respects with the applicable requirements of the rules and regulations of
the Securities Act and the Exchange Act.
SECTION 7.2. Stockholders' Meetings. Company shall call and
hold the Company Stockholders' Meeting and Parent shall call and hold the Parent
Stockholders' Meeting as promptly as practicable after the date hereof for the
purpose of voting upon the approval of this Agreement and the Merger or the
Share Issuance, as the case may be, pursuant to the Joint Proxy Statement, and
Company and Parent shall use all reasonable efforts to hold the Parent
Stockholders' Meeting and the Company Stockholders' Meeting on the same day and
as soon as practicable after the date on which the Registration Statement
becomes effective. Except as otherwise contemplated by this Agreement, Company
shall use all reasonable efforts to solicit from its stockholders proxies in
favor of the approval of this Agreement and the Merger pursuant to the Joint
Proxy Statement and shall take all other action necessary or advisable to secure
the vote or consent of stockholders required by the NYBCL or applicable other
stock exchange requirements to obtain such approval. Except as otherwise
contemplated by this Agreement, Parent shall use all reasonable efforts to
solicit from its stockholders proxies in favor of the Share Issuance pursuant to
the Joint Proxy Statement and shall take all other action necessary or advisable
to secure the vote or consent of stockholders required by the DGCL or applicable
stock exchange requirements to obtain such approval. Each of the parties hereto
shall take all other action necessary or, in the opinion of the other parties
hereto, advisable to promptly and expeditiously secure any vote or consent of
stockholders required by applicable Law and such party's certificate of
incorporation and bylaws to effect the Merger.
SECTION 7.3. Affiliates.
(a) Company will use reasonable efforts to obtain an executed letter agreement
substantially in the form of Annex C hereto from (i) each person identified
in Schedule 4.18 of the Company Disclosure Schedule within 15 days
following the execution and delivery of this Agreement and (ii) from any
person who, to the knowledge of Company, may be deemed to have become an
affiliate of Company after the date of this Agreement and prior to the
Effective Time as soon as practicable after attaining such status. The
foregoing notwithstanding, Parent shall be entitled to place legends as
specified in the Affiliate Agreement on the certificates evidencing any of
the Parent Common Stock to be received by (i) any affiliate of Company or
(ii) any person Parent reasonably identifies (by written notice to Company)
as being a person who may be deemed an "affiliate" within the meaning of
Rule 145 promulgated under the Securities Act, and to issue appropriate
stop transfer instructions to the transfer agent for such Parent Common
Stock, consistent with the terms of the Affiliate Agreement, regardless of
whether such person has executed Affiliate Agreement and regardless of
whether such person's name and address appear on Schedule 4.18 of the
Company Disclosure Schedule.
(b) Parent will use reasonable efforts to obtain an executed letter agreement
substantially in the form of Annex D hereto from (i) each officer and
director of Parent within 15 days following the execution and delivery of
this Agreement and (ii) from any person who, to the knowledge of Parent,
may be deemed to have become an affiliate of Parent after the date of this
Agreement and prior to the Effective Time as soon as practicable after
attaining such status.
SECTION 7.4. Directors' and Officers' Indemnification and Insurance.
(a) The provisions with respect to indemnification that are set forth in
the certificate of incorporation and bylaws of the Surviving
Corporation shall not be amended, repealed or otherwise modified for
a period of six years from the Effective Time in any manner that
would affect adversely the rights thereunder of individuals who at
or at any time prior to the Effective Time were directors, officers,
employees or agents of Company.
(b) From and after the Effective Time, Parent shall indemnify and hold harmless
each present and former director and officer of Company (the "Indemnified
Parties"), against any costs or expenses (including reasonable attorneys'
fees), judgments, fines, losses, claims, damages or liabilities
(collectively, "Costs") incurred in connection with any claim, action,
suit, proceeding or investigation, whether civil, criminal, administrative
or investigative, arising out of or pertaining to matters relating to their
service as such an officer or director existing or occurring at or prior to
the Effective Time, whether asserted or claimed prior to, at or after the
Effective Time, to the fullest extent that Company would have been
permitted under Delaware law and its charter documents (each as in effect
on the date hereof) to indemnify such Indemnified Parties.
(c) For a period of five years after the Effective Time, Parent shall
use its best efforts to maintain in effect the directors' and officers'
liability insurance policies maintained by Company; provided, however,
that in no event shall Parent be required to expend in any one year in
excess of 150% of the annual premium currently paid by Company for such
coverage, which Company hereby represents is $33,000, and provided
further, that if the premium for such coverage exceeds such amount,
Parent shall purchase a policy with the greatest coverage available for
such 150% of the annual premium.
(d) If the Surviving Corporation or any of its successors or assigns (i) con-
solidates with or merges into any other person and shall not be the
continuing or surviving corporation or entity of such consolidation
or merger or (ii) transfers all or substantially all of its
properties and assets to any person, then and in each such case, proper
provision shall be made so that the successors and assigns of the
Surviving Corporation assume the obligations set forth in this Section
7.04.
SECTION 7.5. No Shelf Registration. Parent shall not be
required to amend or maintain the effectiveness of the Registration Statement
for the purpose of permitting resale of the shares of Parent Common Stock
received pursuant hereto by the persons who may be deemed to be "affiliates" of
Company within the meaning of Rule 145 promulgated under the Securities Act.
SECTION 7.6. Public Announcements. The initial press release
concerning the Merger shall be a joint press release and, thereafter, Parent and
Company shall consult with each other before issuing any press release or
otherwise making any public statements with respect to this Agreement or the
Merger and shall not issue any such press release or make any such public
statement without the prior written approval of the other, except to the extent
required by applicable Law or the requirements of the rules and regulations of
the NNM or the NSCM, in which case the issuing party shall use all reasonable
efforts to consult with the other party before issuing any such release or
making any such public statement.
SECTION 7.7. NNM Listing. Prior to the Effective Time, Parent
shall file with the NNM a Notification Form for Listing of Additional Shares
with respect to the Parent Common Stock issued or issuable in connection with
the Merger and shall use all reasonable efforts to have such Parent Common Stock
approved for quotation on the NNM.
SECTION 7.8. Blue Sky. Parent shall use all reasonable efforts
to obtain prior to the Effective Time all necessary permits and approvals
required under Blue Sky Laws to permit the distribution of the shares of Parent
Common Stock to be issued in accordance with the provisions of this Agreement.
SECTION 7.9. Company Stock Options/Registration Statements on
Form S-8. Parent shall reserve for issuance the number of shares of Parent
Common Stock that will be issuable upon exercise of Company Stock Options
assumed pursuant to Section 3.05 hereof. Within 20 business days after the
Effective Time, Parent shall file with the SEC one or more registration
statements on Form S-8 for the shares of Parent Common Stock issuable with
respect to Company Stock Options and will maintain the effectiveness of such
registration statements for so long as any of such options or other rights
remain outstanding. The Company ESPP shall be terminated prior to the Effective
Date. Parent shall use reasonable commercial efforts to take any actions
necessary on the part of Parent to enable subsequent transactions by persons who
formerly held Company Stock Options in Parent Common Stock after the Effective
Time to be exempt from the application of Section 16(b) of the Exchange Act, to
the extent permitted thereunder.
SECTION 7.10. Employee Matters. Simultaneously with the
Merger, the Surviving Corporation shall assume all employment agreements and
termination benefit agreements and arrangements which are in effect at Company
on the date hereof. Company and Parent agree to cooperate and take such
reasonable actions as may be required to effect an orderly transition of
benefits coverage under Company's 401(k) plan, including but not limited to,
termination of such plan. As of the Effective Time, Parent shall cause the
Surviving Corporation to honor and satisfy all obligations and liabilities with
respect to the Company Benefit Plans. Notwithstanding the foregoing, the
Surviving Corporation shall not be required to continue any particular Company
Benefit Plan after the Effective Time, and any Company Benefit Plan may be
amended or terminated in accordance with its terms and applicable law. To the
extent that any Company Benefit Plan is terminated or amended after the
Effective Time so as to reduce the benefits that are then being provided with
respect to participants thereunder, Parent shall arrange for each individual who
is then a participant in such terminated or amended plan to participate in a
comparable Parent Benefit Plan in accordance with the eligibility criteria
thereof, provided that (i) such participants shall receive full credit for years
of service with Company or any of Company Subsidiaries prior to the Merger for
purposes of eligibility and vesting, but excluding benefit accrual or the amount
of benefits, (ii) such participants shall participate in the Parent Benefit
Plans on terms no less favorable than those offered by Parent to similarly
situated employees of Parent and (iii) Parent shall cause any and all
pre-existing conditions limitations (to the extent such limitations did not
apply to a pre-existing condition under the Company Benefit Plans) and
eligibility waiting periods under any group health plans to be waived with
respect to such participants and their eligible dependents.
SECTION 7.11. Iboard Representation. Company shall be entitled
to designate one individual (the "Company Nominee") to Parent's Board of
Directors, who shall be entitled to serve from the Effective Time and until his
successor shall be duly elected and qualified.
ARTICLE VIII.
CONDITIONS TO THE MERGER
SECTION 8.1. Conditions tot he Obligations of Each Party to
Consummate the Merger. The obligations of the parties hereto to consummate the
Merger are subject to the satisfaction or, if permitted by applicable Law,
waiver of the following conditions:
the Registration Statement shall have been declared effective
by the SEC under the Securities Act and no stop order suspending the
effectiveness of the Registration Statement shall have been issued by
the SEC and no proceeding for that purpose shall have been initiated by
the SEC and not concluded or withdrawn;
this Agreement and the Merger shall have been duly approved by
the requisite vote of stockholders of Company in accordance with the
NYBCL and by the requisite vote of the stockholders of Parent in
accordance with the rules of the NNM;
no order, statute, rule, regulation, executive order, stay,
decree, judgment or injunction shall have been enacted, entered,
promulgated or enforced by any court or Governmental Entity which
prohibits or prevents the consummation of the Merger which has not been
vacated, dismissed or withdrawn prior to the Effective Time. Company
and Parent shall use their reasonable best efforts to have any of the
foregoing vacated, dismissed or withdrawn by the Effective Time;
any waiting period (and any extension thereof) applicable to
the consummation of the Merger under the HSR Act or any other
applicable competition, merger control or similar Law shall have
expired or been terminated;
all consents, approvals and authorizations legally required to
be obtained to consummate the Merger shall have been obtained from all
Governmental Entities, except where the failure to obtain any such
consent, approval or authorization could not reasonably be expected to
result in a Parent Material Adverse Effect or a Company Material
Adverse Effect;
The board of directors of Company shall not have revoked,
amended or modified, in any adverse respect, its approval of the Merger
or its recommendation to Company's stockholders described in Section
7.01(b)(i);
The shares of Parent Common Stock to be issued in the Merger
shall have been authorized for listing on the NNM, subject to notice of
issuance;
The board of directors of Parent shall not have revoked,
amended or modified, in any adverse respect, its approval of the Merger
or the Share Issuance or its recommendation to Parent's stockholders
described in Section 7.01(b) hereof; and
Each of Parent and Company shall have been advised in writing
by Ernst & Young LLP as of the date upon which the Effective Time is to
occur, in a form and in substance reasonably acceptable to Parent, that
the Merger can properly be accounted for as a "pooling of interests"
business combination in accordance with U.S. GAAP and the accounting
standards of the SEC.
SECTION 8.2. Conditions to the Obligations of Company. The
obligations of Company to consummate the Merger, or to permit the consummation
of the Merger are subject to the satisfaction or, if permitted by applicable
Law, waiver of the following further conditions:
each of the representations and warranties of Parent contained
in this Agreement shall be true, complete and correct in all material
respects both when made and on and as of the Effective Time as if made
at and as of the Effective Time (other than representations and
warranties which address matters only as of a certain date which shall
be true, complete and correct as of such certain date) and Company
shall have received a certificate of the Chief Executive Officer and
Chief Financial Officer of Parent to such effect;
Parent shall have performed or complied in all material
respects with all covenants required by this Agreement to be performed
or complied with by it on or prior to the Effective Time and Company
shall have received a certificate of the Chief Executive Officer and
Chief Financial Officer of Parent to that effect;
Company shall use its reasonable best efforts to obtain an
opinion from its tax counsel substantially to the effect that, if the
Merger is consummated in accordance with the provisions of this
Agreement, under current law, for federal income tax purposes, the
Merger will qualify as a reorganization within the meaning of Section
368(a) of the Code, which opinion Company shall use its reasonable best
efforts to obtain; and
There shall have been no Parent Material Adverse Effect since
the date of this Agreement.
SECTION 8.3. Conditions to the Obligations of Parent. The
obligations of Parent to consummate the Merger are subject to the satisfaction
or waiver of the following further conditions:
each of the representations and warranties of Company
contained in this Agreement shall be true, complete and correct in all
material respects both when made and on and as of the Effective Time as
if made at and as of the Effective Time (other than representations and
warranties which address matters only as of a certain date which shall
be true, complete and correct as of such certain date) and Parent shall
have received a certificate of the Chief Executive Officer and Chief
Financial Officer of Company to such effect;
Company shall have performed or complied in all material
respects with all covenants required by this Agreement to be performed
or complied with by it on or prior to the Effective Time and Parent
shall have received a certificate of the Chief Executive Officer and
Chief Financial Officer of Company to that effect; and
There shall have been no Company Material Adverse Effect since
the date of this Agreement.
ARTICLE IX.
TERMINATION, AMENDMENT AND WAIVER
SECTION 9.1. Termination. This Agreement may be terminated and the Merger may
be abandoned at any time prior to the Effective Time, notwithstanding any
requisite adoption and approval of this Agreement, as follows:
by mutual written consent duly authorized by the boards of
directors of each of Parent and Company;
by either Parent or Company, if the Effective Time shall not
have occurred on or before November 30, 1999; provided, however, that
the right to terminate this Agreement under this Section 9.01(b) shall
not be available to any party whose failure to fulfill any obligation
under this Agreement shall have caused, or resulted in, the failure of
the Effective Time to occur on or before such date;
by either Parent or Company, if any Governmental Order, writ,
injunction or decree preventing the consummation of the Merger shall
have been entered by any court of competent jurisdiction and shall have
become final and nonappealable;
(a) by Parent, if (i) the board of directors of Company withdraws, modifies or
changes its recommendation of this Agreement or the Merger in a manner
adverse to Parent or its stockholders or shall have resolved to do so, (ii)
the board of directors of Company shall have recommended to the stock-
holders of Company a Company Competing Transaction or shall have resolved
to do so, (iii) a Company Competing Transaction shall have been announced
or otherwise publicly known and the board of directors of Company shall
have (A) failed to recommend against acceptance of such by its stockholders
(including by taking no position, or indicating its inability to take a
position, with respect to the acceptance of a Company Competing Transaction
involving a tender offer or exchange offer by its stockholders), (B) failed
to reconfirm its approval and recommendation of this Agreement and the
transactions contemplated hereby within 15 business days of the first
announcement or other public knowledge of such Competing Offer or (C)
determined that such Company Competing Transaction was a Company Superior
Proposal and to take any of the actions allowed by clause (ii) of Section
6.04(a), or (iv) the board of directors of Company resolves to take any of
the actions described above;
(b) by Company, if (i) the board of directors of Parent withdraws, modifies or
changes its recommendation of this Agreement or the Merger in a manner
adverse to Company or its stockholders or shall have resolved to do so,
(ii) the board of directors of Parent shall have recommended to the stock-
holders of Parent a Parent Competing Transaction or shall have resolved to
do so, (iii) a Parent Competing Transaction shall have been announced or
otherwise publicly known and the board of directors of Parent shall have
(A) failed to recommend against acceptance of such by its stockholders (in-
cluding by taking no position, or indicating its inability to take a
position, with respect to the acceptance of a Parent Competing Transaction
involving a tender offer or exchange offer by its stockholders), (B) failed
to reconfirm its approval and recommendation of this Agreement and the
transactions contemplated hereby within 15 business days of a request made
by the Company following the first announcement or other public knowledge
of such offer for a Parent Competing Transaction or a Parent Combination
Transaction, or (C) determined that such Parent Competing Transaction was a
Parent Superior Proposal and to take any of the actions allowed by clause
(ii) of Section 6.04(b), or (iv) the board of directors of Parent resolves
to take any of the actions described above;
(c) by Parent or Company, if (i) this Agreement and the Merger shall fail to
receive the requisite votes for approval at the Company Stockholders'
Meeting or any adjournment or postponement thereof or (ii) if the Share
Issuance shall fail to receive the requisite votes for approval at the
Parent Shareholders' Meeting or any adjournment or postponement thereof;
(d) by Parent, 10 days after receipt by Company of a written notice from Parent
of a breach of any representation, warranty, covenant or agreement on the
part of Company set forth in this Agreement, or if any representation or
warranty of Company shall have become untrue, incomplete or incorrect, in
either case such that the conditions set forth in Section 8.03 would not be
satisfied (a "Terminating Company Breach"); provided, however, that if such
Terminating Company Breach is curable by Company through the exercise of
its reasonable efforts within 10 days and for so long as Company continues
to exercise such reasonable efforts, Parent may not terminate this
Agreement under this Section 9.01(g); and provided, further that the
preceding proviso shall not in any event be deemed to extend any date set
forth in paragraph (b) of this Section 9.01;
(e) by Company, 10 days after receipt by Parent of a written notice from
Company of a breach of any representation, warranty, covenant or agreement
on the part of Parent set forth in this Agreement, or if any representation
or warranty of Parent shall have become untrue, incomplete or incorrect, in
either case such that the conditions set forth in Section 8.02 would not be
satisfied (a "Terminating Parent Breach"); provided, however, that if such
Terminating Parent Breach is curable by Parent through the exercise of its
reasonable efforts within 10 days and for so long as Parent continues to
exercise such reasonable efforts, Company may not terminate this Agreement
under this Section 9.01(h); and provided, further that the preceding
proviso shall not in any event be deemed to extend any date set forth in
paragraph (b) of this Section 9.01;
The right of any party hereto to terminate this Agreement pursuant to this
Section 9.01 will remain operative and in full force and effect regardless of
any investigation made by or on behalf of any party hereto, any person
controlling any such party or any of their respective officers, directors,
representatives or agents, whether prior to or after the execution of this
Agreement.
SECTION 9.2. Effect of Termination. Except as provided in
Section 9.05, in the event of termination of this Agreement pursuant to Section
9.01, this Agreement shall forthwith become void, there shall be no liability
under this Agreement on the part of any party hereto or any of its affiliates or
any of its or their officers or directors, and all rights and obligations of
each party hereto shall cease; provided, however, that nothing herein shall
relieve any party hereto from liability for the willful or intentional breach of
any of its representations and warranties or the willful or intentional breach
of any of its covenants or agreements set forth in this Agreement.
SECTION 9.3. Amendment. This Agreement may be amended by the
parties hereto by action taken by or on behalf of their respective boards of
directors at any time prior to the Effective Time; provided, however, that,
after the approval of this Agreement by the stockholders of Company, no
amendment may be made that changes the amount or type of consideration into
which Company common stock will be converted pursuant to this Agreement. This
Agreement may not be amended except by an instrument in writing signed by the
parties hereto.
SECTION 9.4. Waiver. At any time prior to the Effective Time,
any party hereto may (a) extend the time for or waive compliance with the
performance of any obligation or other act of any other party hereto, (b) waive
any inaccuracy in the representations and warranties contained herein or in any
document delivered pursuant hereto and (c) waive compliance by the other party
with any of the agreements or conditions contained herein. Any such extension or
waiver shall be valid if set forth in an instrument in writing signed by the
party or parties to be bound thereby.
SECTION 9.5. Termination Fee: Expenses.
(a) Except as set forth in this Section 9.05, all Expenses incurred in
connection with this Agreement and the Merger shall be paid by the party
incurring such Expenses, whether or not the Merger is consummated,
except that Parent and Company each shall pay one-half of all Expenses
incurred solely for printing, filing and mailing the Registration
Statement and the Joint Proxy Statement and all SEC and other regulatory
filing fees incurred in connection with the Registration Statement and
the Joint Proxy Statement and any fees required to be paid under the HSR
Act.
(b) In the event that (i) Parent shall terminate this Agreement pursuant to
Section 9.01(d) or (ii) Parent shall terminate this Agreement
due to a Terminating Company Breach pursuant to Section 9.01(g), but
only if such breach was intentional, then Company shall pay to Parent
(the "Company Termination Fee") a sum equal to all of Parent's
Expenses and an additional amount equal to $4.5 million. Notwithstanding
the foregoing, no fee shall be paid pursuant to this Section 9.05(b) if
Parent shall be in material breach of its obligations hereunder.
Any Company Termination Fee shall be paid in same day funds within three
(3) business days of the date of termination.
(c) In the event that (i) Company shall terminate this Agreement
pursuant to Section 9.01(e) or (ii) Company shall terminate this Agreement
due to a Terminating Parent Breach pursuant to Section 9.01(h), but
only if such breach was intentional, then Parent shall pay to Company
(the "Parent Termination Fee") a sum equal to all of Company's
Expenses and an additional amount equal to $4.5 million. Notwithstanding
the foregoing, no fee shall be paid pursuant to this Section 9.05(c) if
Company shall be in material breach of its obligations hereunder.
Any Parent Termination Fee shall be paid in same day funds within three
(3) business days of the date of termination.
(d) Parent and Company agree that the agreements contained in Sections 9.05(b)
and 9.05(c) above are an integral part of the transaction contemplated by
this Agreement and constituted liquidated damages and not a penalty. If
Company fails to pay to Parent any fee due under Section 9.05(b), Company
shall pay the cash and expenses (including legal fees and expenses) in
connection with any action, including the filing of any lawsuit of other
legal action, taken to collect payment. Similarly, if Parent fails to pay
to Company any fee due under Section 9.05(c), Parent shall pay the cash and
expenses (including legal fees and expenses) in connection with any action,
including the filing of any lawsuit of other legal action, taken to collect
payment.
ARTICLE X.
GENERAL PROVISIONS
SECTION 10.1. Non-Survival of Representations and Warranties.
The representations and warranties in this Agreement shall terminate at the
Effective Time or upon the termination of this Agreement pursuant to Section
9.01, as the case may be. This Section 10.01 shall not limit any covenant or
agreement of the parties which by its terms contemplates performance after the
Effective Time.
SECTION 10.2. Notices. All notices, requests, claims, demands
and other communications hereunder 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 or facsimile, by registered or certified mail (postage prepaid, return
receipt requested) or by a nationally recognized courier service to the
respective parties at the following addresses (or at such other address for a
party as shall be specified in a notice given in accordance with this Section
10.02):
if to Company:
MARKET GUIDE INC.
2001 Marcus Avenue
Suite S200
Lake Success, New York 11042-1011
Attention: Chief Executive Officer
Telecopier: 516-327-2431
with a copy to:
Willkie Farr & Gallagher
787 Seventh Avenue
New York, New York 10019
Attention: Jack H. Nusbaum, Esq. and
Steven A. Seidman, Esq.
Telecopier: 212-728-8111
if to Parent or Merger Sub:
MULTEX.COM, INC.
33 Maiden Lane, 5th Floor
New York, New York 10038
Attention: Chief Financial Officer
Telecopier: 212-742-9561
with a copy to:
Brobeck, Phleger & Harrison LLP
1633 Broadway, 47th Floor
New York, NY 10019
Attention: Alexander D. Lynch, Esq.
Telecopier: (212) 586-7878
SECTION 10.3. Severability. If any term or other provision of
this Agreement is invalid, illegal or incapable of being enforced by any rule of
Law or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of the Merger is not affected in any manner materially adverse
to any party. Upon such determination that any term or other provision 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 in a mutually acceptable manner to
the fullest extent permitted by applicable Law in order that the Merger may be
consummated as originally contemplated to the fullest extent possible.
SECTION 10.4. Assignment, Binding Effect, Benefit. Neither
this Agreement nor any of the rights, interests or obligations hereunder shall
be assigned by any of the parties hereto (whether by operation of Law or
otherwise) without the prior written consent of the other parties hereto.
Subject to the preceding sentence, this Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and permitted assigns. Notwithstanding anything contained in this Agreement to
the contrary, other than Section 7.04, nothing in this Agreement, expressed or
implied, is intended to confer on any person other than the parties hereto or
their respective successors and permitted assigns any rights or remedies under
or by reason of this Agreement, provided, however, that the parties hereto
specifically acknowledge that the provisions of Section 7.04, 7.09 and 7.10
hereof are intended to be for the benefit of, and shall be enforceable by, the
current and former employees, officers and directors of Company and/or the
Company Subsidiaries affected thereby and their heirs and representatives, and
the provisions of Sections 3.02(c), 3.04 and 3.05 herein are intended to be for
the benefit of, and shall be enforceable by, stockholders of Company affected
thereby and their heirs and representatives.
SECTION 10.5. Incorporation of Exhibits. The Parent Disclosure
Schedule, the Company Disclosure Schedule and all Exhibits attached hereto and
referred to herein are hereby incorporated herein and made a part of this
Agreement for all purposes as if fully set forth herein. Parent and Company
acknowledge that the Parent Disclosure Schedule and the Company Disclosure
Schedule (i) are qualified in their entitety by reference to specific provisions
of this Agreement and (ii) are not intended to constitute and shall not be
construed as indicating that such matter is required to be disclosed, nor shall
such disclosure be construed as an admission that such information is material
with respect to Parent or Company, as the case may be, except to the extent
required by this Agreement and by applicable law.
SECTION 10.6. Governing Law. THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK OTHER THAN CONFLICT OF LAWS PRINCIPLES THEREOF DIRECTING THE APPLICATION OF
ANY LAW OTHER THAN THAT OF NEW YORK.
SECTION 10.7. Waiver of Jury Trial. EACH PARTY HERETO HEREBY
IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING (WHETHER BASED
ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR
ANY TRANSACTION OR AGREEMENT CONTEMPLATED HEREBY OR THE ACTIONS OF ANY PARTY
HERETO IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT HEREOF.
SECTION 10.8. Headings; Interpretation. The descriptive
headings contained in this Agreement are included for convenience of reference
only and shall not affect in any way the meaning or interpretation of this
Agreement. The parties have participated jointly in the negotiation and drafting
of this Agreement. In the event an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly
by the parties, and no presumption or burden of proof shall arise favoring or
disfavoring any party by virtue of the authorship of any provisions of this
Agreement.
SECTION 10.9. Counterparts. This Agreement may be executed and
delivered (including by facsimile transmission) in one or more counterparts, and
by the different parties hereto in separate counterparts, each of which when
executed and delivered shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
SECTION 10.10. Entire Agreement. This Agreement (including the
Exhibits, the Parent Disclosure Schedule and the Company Disclosure Schedule)
and the Confidentiality Agreement constitute the entire agreement among the
parties with respect to the subject matter hereof and supersede all prior
agreements and understandings among the parties with respect thereto. No
addition to or modification of any provision of this Agreement shall be binding
upon any party hereto unless made in writing and signed by all parties hereto.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the date first written above by their respective
officers thereunto duly authorized.
MULTEX.COM, INC.
By:
Name:
Title:
MARKET GUIDE INC.
By:
Name:
Title:
MERENGUE ACQUISITION CORP.
By:
Name:
Title:
<PAGE>
PARENT STOCKHOLDER AGREEMENT
This PARENT STOCKHOLDER AGREEMENT (this "Agreement") is made and entered into as
of June __, 1999 between Market Guide Inc., a New York corporation ("Company"),
and the undersigned stockholder ("Stockholder") of Multex.com, Inc., a Delaware
corporation ("Parent"). Capitalized terms used and not otherwise defined herein
shall have the respective meanings set forth in the Reorganization Agreement
described below.
RECITALS
WHEREAS, pursuant to an Agreement and Plan of Merger and Reorganization dated as
of June __, 1999 by and among Parent, Merengue Acquisition Corp., a New York
corporation and a wholly owned subsidiary of Parent ("Merger Sub") and Company
(such agreement as it may be amended is hereinafter referred to as the
"Reorganization Agreement"), Parent has agreed to acquire the outstanding
securities of Company pursuant to a statutory merger of Merger Sub with and into
Company (the "Merger") in which each outstanding share of capital stock of
Company (the "Company Capital Stock") will be converted into shares of common
stock of Parent (the "Parent Common Stock") at the exchange rate set forth in
the Reorganization Agreement (the "Transaction");
WHEREAS, in order to induce Company to enter into the Reorganization Agreement
and consummate the Transaction, Parent has agreed to use its reasonable best
efforts to cause each stockholder of Parent who is an affiliate of Parent to
execute and deliver to Company a Parent Stockholder Agreement upon the terms set
forth herein; and
WHEREAS, Stockholder is the registered and beneficial owner of such number of
shares of the outstanding capital stock of Parent as is indicated on the
signature page of this Agreement (the "Shares").
NOW, THEREFORE, the parties agree as follows:
1. Agreement to Retain Shares.
1.1 Transfer and Encumbrance.
(a) Stockholder represents and warrants to Company that (w) Stockholder is the
beneficial owner of the Shares; (x) the Shares constitute Stockholder's entire
interest in the outstanding capital stock and voting securities of Parent; (y)
the Shares are, and will be at all times up until the Expiration Date, free and
clear of any liens, claims, options, charges or other encumbrances; and (z)
Stockholder's principal residence or place of business is accurately set forth
on the signature page hereto.
(b) Stockholder agrees not to transfer (except as may be specifically required
by court order or by operation of law, in which case any such transferee shall
agree to be bound hereby), sell, exchange, pledge or otherwise dispose of or
encumber any Shares or any New Shares (as defined below), or to make any offer
or agreement relating thereto, at any time prior to the Expiration Date. As used
herein, the term "Expiration Date" shall mean the earlier to occur of (i) the
Effective Time or (ii) termination of the Reorganization Agreement in accordance
with the terms thereof.
1.2 New Shares. Stockholder agrees that any shares of capital stock or voting
securities of Parent that Stockholder purchases or with respect to which
Stockholder otherwise acquires beneficial ownership after the date of this
Agreement and prior to the Expiration Date ("New Shares") shall be subject to
the terms and conditions of this Agreement to the same extent as if they
constituted Shares.
2. Agreement to Vote Shares. Prior to the Expiration Date, at every meeting of
the stockholders of Parent at which any of the following is considered or voted
upon, and at every adjournment thereof, and on every action or approval by
written resolution of the stockholders of Parent with respect to any of the
following, Stockholder shall vote the Shares and any New Shares, subject to the
absence of a preliminary or permanent injunction or other final order by any
United States federal, state or foreign court barring such action, in favor of
approval and adoption of the Reorganization Agreement and of the Transaction and
against any transaction that may prevent or materially impede the Transaction.
Notwithstanding the foregoing, nothing in this Agreement shall limit or restrict
Stockholder from acting in his capacity as a director or officer of Parent, to
the extent applicable, it being understood that this Agreement shall apply to
Stockholder solely in its capacity as a stockholder of Parent.
3. Irrevocable Proxy. Stockholder hereby agrees to timely deliver to Company a
duly executed proxy in the form attached hereto as Annex A (the "Proxy"), such
Proxy to cover the Shares and all New Shares in respect of which Stockholder is
entitled to vote at each meeting of the stockholders of Parent (including,
without limitation, each written consent in lieu of a meeting) prior to the
Expiration Date. In the event that Stockholder is unable to provide any such
Proxy in a timely manner, Stockholder hereby grants Company a power of attorney
up to and through the Expiration Date to execute and deliver such Proxy for and
on behalf of Stockholder, such power of attorney, which being coupled with an
interest, shall survive any death, disability, bankruptcy, or any other such
impediment of Stockholder. Upon the execution of this Agreement by Stockholder,
Stockholder hereby revokes any and all prior proxies or powers of attorney given
by Stockholder with respect to the Shares and agrees not to grant any subsequent
proxies or powers of attorney with respect to the Shares until after the
Expiration Date.
4. Representations, Warranties and Covenants of Stockholder. Stockholder hereby
represents, warrants and covenants to Company as follows: (a) Stockholder has
full power and legal capacity to execute and deliver this Agreement, to perform
its obligations hereunder and to consummate the transactions contemplated
hereby. This Agreement has been duly and validly executed and delivered by
Stockholder and constitutes the valid and binding obligation of Stockholder,
enforceable against Stockholder in accordance with its terms. Except as may be
limited by (i) the effect of bankruptcy, insolvency, conservatorship,
arrangement, moratorium or other laws affecting or relating to the rights of
creditors generally, or (ii) the rules governing the availability of specific
performance, injunctive relief or other equitable remedies and general
principles of equity, regardless of whether considered in a proceeding in equity
or at law, the execution and delivery of this Agreement by Stockholder does not,
and the performance of Stockholder's obligations hereunder will not, result in
any 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 right to
terminate, amend, accelerate or cancel any right or obligation under, or result
in the creation of any lien or encumbrance on any Shares or New Shares pursuant
to, any note, bond, mortgage, indenture, contract, agreement, lease, license,
permit, franchise or other instrument or obligation to which Stockholder is a
party or by which Stockholder or the Shares or New Shares are or will be bound
or affected.
(b) Until the Expiration Date, Stockholder will not (and will use Stockholder's
reasonable best efforts to cause Parent, its affiliates, officers, directors and
employees and any investment banker, attorney, accountant or other agent
retained by Stockholder, Parent or any of the same, not to) (i) initiate or
solicit, directly or indirectly, any Parent Competing Transaction (as defined in
the Reorganization Agreement); (ii) initiate, directly or indirectly, any
contact with any person in an effort to or with a view towards soliciting any
Parent Competing Transaction; (iii) furnish information concerning Parent's
business, properties or assets to any corporation, partnership, person or other
entity or group (other than Company, or any associate, agent or representative
of Company) under any circumstances that could reasonably be expected to relate
to an actual or potential Parent Competing Transaction; or (iv) negotiate or
enter into discussions or an agreement, directly or indirectly, with any entity
or group with respect of any potential Parent Competing Transaction. In the
event Stockholder shall receive or become aware of any Parent Competing
Transaction subsequent to the date hereof, Stockholder shall promptly inform
Company as to any such matter and the details thereof to the extent possible
without breaching any other agreement to which such Stockholder is a party or
violating its fiduciary duties.
(c) Stockholder understands and agrees that if Stockholder attempts to transfer,
vote or provide any other person with the authority to vote any of the Shares
other than in compliance with this Agreement, Parent shall not, and Stockholder
hereby unconditionally and irrevocably instructs Parent to not, permit any such
transfer on its books and records, issue a new certificate representing any of
the Shares or record such vote unless and until Stockholder shall have complied
with the terms of this Agreement.
5. Additional Documents. Stockholder hereby covenants and agrees to execute and
deliver any additional documents necessary or desirable, in the reasonable
opinion of Company, to carry out the purpose and intent of this Agreement.
6. Consent and Waiver. Stockholder hereby gives any consents or waivers that are
reasonably required for the consummation of the Transaction under the terms of
any agreement to which Stockholder is a party or pursuant to any rights
Stockholder may have.
7. Termination. This Agreement and the Proxy delivered in connection herewith
shall terminate and shall have no further force or effect as of the Expiration
Date or the termination of the Reorganization Agreement in accordance with its
terms.
8. Confidentiality. Stockholder agrees (i) to hold any information regarding
this Agreement and the Transaction in strict confidence, and (ii) not to divulge
any such information to any third person, except to the extent any of the same
is hereafter publicly disclosed by Parent and to the Stockholder's agents or
advisors in connection with the execution and performance of this Agreement.
9. Miscellaneous.
9.1 Severability. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, then the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
9.2 Binding Effect and Assignment. This Agreement and all of the provisions
hereof shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns, but, except as otherwise
specifically provided herein, neither this Agreement nor any of the rights,
interests or obligations of the parties hereto may be assigned by either of the
parties without the prior written consent of the other. This Agreement is
intended to bind Stockholder solely as a securityholder of Parent only with
respect to the specific matters set forth herein.
9.3 Amendment and Modification. This Agreement may not be modified, amended,
altered or supplemented except by the execution and delivery of a written
agreement executed by the parties hereto.
9.4 Specific Performance; Injunctive Relief. The parties hereto acknowledge that
Company will be irreparably harmed and that there will be no adequate remedy at
law for a violation of any of the covenants or agreements of Stockholder set
forth herein. Therefore, it is agreed that, in addition to any other remedies
that may be available to Company upon any such violation, Company shall have the
right to enforce such covenants and agreements by specific performance,
injunctive relief or by any other means available to Company at law or in equity
and Stockholder hereby waives any and all defenses which could exist in its
favor in connection with such enforcement and waives any requirement for the
security or posting of any bond in connection with such enforcement.
9.5 Notices. All notices, requests, demands or other communications that are
required or may be given pursuant to the terms of this Agreement shall be in
writing and shall be deemed to have been duly given if delivered by hand or
mailed by registered or certified mail, postage prepaid, or sent by facsimile
transmission, as follows:
(a) If to Stockholder, at the address set forth below Stockholder's
signature at the end hereof.
(b) if to Company, to:
Market Guide Inc.
2001 Marcus Avenue
Suite S200
Lake Success, New York 10042-1011
Attention: Chief Executive Officer
Facsimile No: (516) 327-2431
with a copy to:
Willkie Farr & Gallagher
The Equitable Center
787 Seventh Avenue
New York, NY 10019-6099
Attention: Jack H. Nusbaum, Esq. and
Steven A. Seidman, Esq.
Facsimile No.: (212) 728-8111
or to such other address as any party hereto may designate for itself by notice
given as herein provided.
9.6 Governing Law. This Agreement shall be governed by, construed and enforced
in accordance with the internal laws of the State of New York without giving
effect to the principles of conflicts of law thereof.
9.7 Entire Agreement. This Agreement and the Proxy contain the entire
understanding of the parties in respect of the subject matter hereof, and
supersede all prior negotiations and understandings between the parties with
respect to such subject matter.
9.8 Counterpart. This Agreement may be executed in several counterparts, each of
which shall be an original, but all of which together shall constitute one and
the same agreement.
9.9 Effect of Headings. The section headings herein are for convenience only and
shall not affect the construction or interpretation of this Agreement.
(Signature Page Follows)
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Parent Stockholder Agreement to
be executed as of the date first above written.
MARKET GUIDE INC. STOCKHOLDER
By:
Name: (Signature)
Title:
(Signature of Spouse)
(Print Name of Stockholder)
(Print Street Address)
(Print City, State and Zip)
(Print Telephone Number)
(Social Security or Tax I.D. Number)
Total Number of Shares of Parent Common Stock owned on the date hereof:
Common Stock:
State of Residence:
<PAGE>
ANNEX A
IRREVOCABLE PROXY
TO VOTE STOCK OF
MULTEX.COM, INC.
The undersigned stockholder of Multex.com, Inc., a Delaware corporation
("Parent"), hereby irrevocably appoints the members of the Board of Directors of
Market Guide Inc., a New York corporation ("Company") and each of them, or any
other designee of Company, up to and through the Expiration Date, as the sole
and exclusive attorneys and proxies of the undersigned, with full power of
substitution and resubstitution, to vote and exercise all voting and related
rights (to the full extent that the undersigned is entitled to do so) with
respect to all of the shares of capital stock of Parent that now are or
hereafter may be beneficially owned by the undersigned, and any and all other
shares or securities of Parent issued or issuable in respect thereof on or after
the date hereof (collectively, the "Shares") in accordance with the terms of
this Irrevocable Proxy. The Shares beneficially owned by the undersigned
stockholder of Parent as of the date of this Irrevocable Proxy are listed on the
final page of this Irrevocable Proxy. Upon the undersigned's execution of this
Irrevocable Proxy, any and all prior proxies given by the undersigned with
respect to any Shares are hereby revoked and the undersigned agrees not to grant
any subsequent proxies with respect to the Shares until after the Expiration
Date (as defined below).
This Irrevocable Proxy is irrevocable, is coupled with an interest, including,
but not limited to, that certain Parent Affiliate Agreement dated as of even
date herewith by and between Parent and the undersigned, and is granted in
consideration of Company entering into that certain Agreement and Plan of Merger
and Reorganization (the "Reorganization Agreement") by and among Parent and
Merengue Acquisition Corp., a New York corporation and a wholly owned subsidiary
of Parent ("Merger Sub"), and Company which Reorganization Agreement provides
for the merger of Merger Sub with and into Company (the "Merger"). As used
herein, the term "Expiration Date" shall mean the earlier to occur of (i) such
date and time as the Merger shall become effective in accordance with the terms
and provisions of the Reorganization Agreement, and (ii) the date of termination
of the Reorganization Agreement.
The attorneys and proxies named above, and each of them are hereby authorized
and empowered by the undersigned, at any time prior to the Expiration Date, to
act as the undersigned's attorney and proxy to vote the Shares as indicated in
Section 2 of the Parent Stockholders Agreement, and to exercise all voting
rights of the undersigned with respect to the Shares (including, without
limitation, the power to execute and deliver written consents), at every annual,
special or adjourned meeting of the stockholders of Parent and in every written
consent in lieu of such meeting in favor of approval and adoption of the
Reorganization Agreement and of the transactions contemplated thereby.
The attorneys and proxies named above may not exercise this Irrevocable Proxy on
any other matter except as provided above. The undersigned stockholder may vote
the Shares on all other matters.
All authority herein conferred shall survive the death or incapacity of the
undersigned and any obligation of the undersigned hereunder shall be binding
upon the heirs, personal representatives, successors and assigns of the
undersigned.
(SIGNATURE PAGE TO FOLLOW)
<PAGE>
June 8K Multex
This Irrevocable Proxy is coupled with an interest as aforesaid and is
irrevocable.
Dated: June __, 1999
-------------------------------------
(Signature of Stockholder)
-------------------------------------
(Print Name of Stockholder)
Shares beneficially owned:
_______________________ shares of Parent Common Stock
<PAGE>
PARENT AFFILIATE AGREEMENT
June __, 1999
Multex.com, Inc.
33 Maiden Lane, 5th Floor
New York, New York 10038
Ladies and Gentlemen:
Pursuant to the terms of an Agreement and Plan of Merger and Reorganization,
dated as of June __, 1999 (the "Reorganization Agreement"), by and among
Multex.com, Inc., a Delaware corporation ("Parent"), Merengue Acquisition Corp.,
a New York corporation and a wholly owned subsidiary of Parent ("Merger Sub"),
and Market Guide Inc., a New York corporation ("Company"), Parent has agreed to
acquire Company through the merger of Merger Sub with and into Company (the
"Transaction").
The undersigned has been advised that as of the date hereof the undersigned may
be deemed to be (but does not hereby admit to be) an "affiliate" of Parent, as
the term "affiliate" is (i) defined for purposes of paragraphs (c) and (d) of
Rule 145 of the rules and regulations (the "Rules and Regulations") of the
Securities and Exchange Commission (the "SEC") promulgated under the Securities
Act of 1933, as amended (the "Securities Act"), and/or (ii) used in and for
purposes of Accounting Series Releases 130, 135 and 146 and Staff Accounting
Bulletin Two, as amended, of the SEC.
The undersigned understands that the representations, warranties and covenants
set forth herein will be relied upon by Parent, other stockholders of Parent,
Merger Sub, Company and their respective counsel and accounting firms. Except to
the extent written notification to the contrary is received by Parent from the
undersigned prior to the consummation of the Transaction, the representations
and warranties contained herein shall be accurate at all times from the date
hereof through the Effective Time (as defined in the Reorganization Agreement).
The undersigned hereby represents and warrants to and agrees with Parent that:
The undersigned has power and authority to execute and deliver
this letter agreement and to make the representations and warranties set forth
herein and to perform [its] [his] [her] obligations hereunder;
The undersigned has carefully read this letter agreement and
the Reorganization Agreement and, to the extent the undersigned felt necessary,
discussed the requirements of such documents and other applicable limitations
upon [its] [his] [her] ability to sell, transfer, pledge or otherwise dispose of
Parent Common Stock with [its] [his] [her] counsel or counsel for the Parent;
The undersigned is the owner of the number of shares of Parent
Common Stock (the "Shares") set forth below, and did not acquire any of the
Shares in contemplation of the Transaction.
The undersigned will not make any sale, transfer, pledge or
other disposition of Parent Common Stock (i) in violation of the Securities Act
or the Rules and Regulations or (ii) until the Pooling Period (as defined
herein) has concluded, to a transferee that has not agreed in writing to be
bound hereby.
Any other provisions of this letter agreement to the contrary
notwithstanding, except as set forth below, during the 30-day period immediately
preceding the Effective Time, the undersigned has not engaged and will not
engage, and after the Effective Time until such time as results covering at
least 30 days of combined operations of the Company and Parent have been
published by Parent, in the form of a quarterly earnings report, an effective
registration statement filed with the Commission, a report to the Commission on
Form 10-K, 10-Q, or 8-K, or any other public filing or announcement which
includes such combined results of operations (the period commencing 30 days
prior to the Effective Time and ending on the date of the publication of the
post-Transaction financial results is referred to herein as the "Pooling
Period"), the undersigned will not engage, in any sale, transfer, or other
disposition of, or reduce the undersigned's risk in respect of, any shares of
Parent Common Stock which the undersigned currently owns or otherwise acquires
after the execution of this Agreement and during the Pooling Period, or any
securities which may be paid as a dividend or otherwise distributed thereon or
with respect thereto or issued or delivered in exchange or substitution
therefore (all such shares and other securities being referred to herein,
collectively, as "Restricted Securities"), or any option, right or other
interest with respect to any Restricted Securities.
As promptly as practicable after the Effective Time, Parent
will publish results covering at least 30 days of combined operations of the
Company and Parent in the form of a quarterly earnings report, an effective
registration statement filed with the Commission, a report to the Commission on
Form 10-K, 10-Q, 8-K, or any other public filing or announcement which includes
such combined results of operations, which results will be published within 60
days of the Effective Time.
This Parent Affiliate Agreement shall be governed by and
construed and enforced in accordance with the internal laws of the State of New
York without giving effect to the principles of conflicts of laws thereof and
may be executed in counterparts. This Parent Affiliate Agreement shall terminate
immediately upon the termination of the Reorganization Agreement in accordance
with its terms.
(Signature Page Follows)
<PAGE>
NYOLIB1\BBM\146225.05(34TT05!.DOC) 7
IN WITNESS WHEREOF, the parties have caused this Parent
Affiliate Agreement to be executed as of the date first above written.
Very truly yours,
(print name)
Number of Shares
beneficially owned as of
the date hereof:
Accepted as of __________ _____, 1999 MULTEX.COM, INC.
By:
Name:
Title:
<PAGE>
COMPANY AFFILIATE AGREEMENT
June __, 1999
Multex.com, Inc.
33 Maiden Lane, 5th Floor
New York, New York 10038
Ladies and Gentlemen:
Pursuant to the terms of an Agreement and Plan of Merger and
Reorganization, dated as of June __, 1999 (the "Reorganization Agreement"), by
and among Multex.com, Inc., a Delaware corporation ("Parent"), Merengue
Acquisition Corp., a New York corporation and a wholly owned subsidiary of
Parent ("Merger Sub"), and Market Guide Inc., a New York corporation
("Company"), Parent has agreed to acquire Company through the merger of Merger
Sub with and into Company (the "Transaction").
The undersigned has been advised that as of the date hereof
the undersigned may be deemed to be (but does not hereby admit to be) an
"affiliate" of Company, as the term "affiliate" is (i) defined for purposes of
paragraphs (c) and (d) of Rule 145 of the rules and regulations (the "Rules and
Regulations") of the Securities and Exchange Commission (the "SEC") promulgated
under the Securities Act of 1933, as amended (the "Securities Act"), and/or (ii)
used in and for purposes of Accounting Series Releases 130, 135 and 146 and
Staff Accounting Bulletin Two, as amended, of the SEC.
The undersigned understands that the representations,
warranties and covenants set forth herein will be relied upon by Parent, other
stockholders of Parent, Merger Sub, Company and their respective counsel and
accounting firms. Except to the extent written notification to the contrary is
received by Parent from the undersigned prior to the consummation of the
Transaction, the representations and warranties contained herein shall be
accurate at all times from the date hereof through the Effective Time (as
defined in the Reorganization Agreement).
The undersigned hereby represents and warrants to and agrees
with Parent that in the event the undersigned receives any shares of Parent
Common Stock as a result of the Transaction:
The undersigned has power and authority to execute and deliver
this letter agreement and to make the representations and warranties set forth
herein and to perform [its] [his] [her] obligations hereunder;
The undersigned has carefully read this letter agreement and
the Reorganization Agreement and, to the extent the undersigned felt necessary,
discussed the requirements of such documents and other applicable limitations
upon [its] [his] [her] ability to sell, transfer, pledge or otherwise dispose of
Parent Common Stock with [its] [his] [her] counsel or counsel for the Company;
The undersigned is the owner of the number of shares of Company Common
Stock (the "Shares") set forth below, and did not acquire any of the Shares in
contemplation of the Transaction.
The undersigned will not make any sale, transfer, pledge or other
disposition of Parent Common Stock (i) in violation of the Securities Act or the
Rules and Regulations or (ii) until the Pooling Period (as defined herein) has
concluded, to a transferee that has not agreed in writing to be bound hereby;
The undersigned has been advised that the issuance of Parent Common
Stock to the undersigned in connection with the Transaction has been or will be
registered with the Commission under the Securities Act on a Registration
Statement on Form S-4. However, the undersigned has also been advised that,
since at the time the Transaction was or will be submitted for a vote of the
stockholders of the Company the undersigned may be deemed to be or have been an
affiliate of the Company and the distribution by the undersigned of any Parent
Common Stock has not been registered under the Securities Act, the undersigned
may not sell, transfer, or otherwise dispose of Parent Common Stock issued to
[it] [him] [her] in the Transaction unless (i) such sale, transfer, or other
disposition has been registered under the Securities Act, (ii) such sale,
transfer, or other disposition is made in conformity with the volume and other
limitations of Rule 145 or (iii) in the opinion of counsel reasonably acceptable
to Parent (it being understood that the law firm of Brobeck, Phleger & Harrison
LLP is deemed to be reasonably satisfactory to Parent), such sale, transfer, or
other disposition is otherwise exempt from registration under the Securities
Act;
The undersigned understands that, except as provided in the
Reorganization Agreement or herein, Parent is under no obligation to register
the sale, transfer, or other disposition of Parent Common Stock by the
undersigned or on [its] [his] [her] behalf under the Securities Act or to take
any other action necessary in order to make compliance with an exemption from
such registration available;
The undersigned also understands that, until the Pooling Period has
concluded, Parent may impose stop transfer instructions or elect to not permit
the transfer of shares of Parent Common Stock or the issuance of a new
certificate representing such shares unless and until such a transfer can be
made without adversely affecting the ability of Parent or the surviving
corporation to account for the business combination to be effected by the
Transaction as a pooling of interests, and that there will be placed on the
certificates for Parent Common Stock issued to [it] [him] [her], or any
substitutions therefor, a legend stating in substance:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE WERE ISSUED IN A
TRANSACTION TO WHICH RULE 145 PROMULGATED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, APPLIES. THE SECURITIES EVIDENCED BY
THIS CERTIFICATE MAY ONLY BE TRANSFERRED IN ACCORDANCE WITH
THE TERMS OF AN AGREEMENT DATED JUNE __, 1999 BETWEEN THE
REGISTERED HOLDER HEREOF AND MULTEX.COM, INC., A COPY OF WHICH
AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICES OF MULTEX.COM,
INC.;
The undersigned also understands that, unless the sale, transfer, or
other disposition by [it] [him] [her] of Parent Common Stock issued to [it]
[him] [her] has been registered under the Securities Act or is a sale made in
conformity with the provisions of Rule 145, Parent reserves the right to put the
following legend on the certificates issued to any transferee of the
undersigned:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE WERE ACQUIRED
FROM A PERSON WHO RECEIVED SUCH SHARES IN A TRANSACTION TO
WHICH RULE 145 PROMULGATED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, APPLIES, AND WERE NOT ACQUIRED BY THE HOLDER WITH
A VIEW TO TRANSFER, OR FOR RESALE IN CONNECTION WITH, ANY
DISTRIBUTION THEREOF WITHIN THE MEANING OF THE SECURITIES ACT
OF 1933, AS AMENDED. THE SECURITIES EVIDENCED BY THIS
CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS, AND MAY NOT
BE SOLD OR OTHERWISE DISPOSED OF, UNLESS SUCH SALE, TRANSFER,
OR OTHER DISPOSAL IS MADE IN CONNECTION WITH AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND ANY APPLICABLE STATE SECURITIES LAWS OR IS EXEMPT
FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT, THE RULES AND
REGULATIONS IN EFFECT THEREUNDER AND ANY APPLICABLE STATE
SECURITIES LAWS;
Except for the Reorganization Agreement, there are no contracts,
commitments or agreements relating to voting, purchase or sale of Company's
capital stock (i) between Company and the undersigned and (ii) between the
undersigned and any other of Company's stockholders.
With a view to making available to the undersigned the benefits of
certain rules and regulations of the SEC which may permit the sale of restricted
securities to the public without registration, Parent or the surviving company,
as the case may be, agrees to: (i) make and keep public information available as
those terms are understood and defined in Rule 144 under the Securities Act
("Rule 144"); (ii) use its best efforts to file with the SEC in a timely manner
all reports and other documents required of Parent or the surviving company, as
the case may be, under the Securities Act and the Securities Exchange Act of
1934, as amended (the "Exchange Act"); and (iii) so long as the undersigned owns
any Parent Common Stock, furnish to the undersigned upon request, a written
statement by Parent or the surviving company, as the case may be, as to its
compliance with the reporting requirements of Rule 144 and of the Securities Act
and the Exchange Act, a copy of the most recent annual or quarterly report of
such entity, and such other reports and documents so filed as the undersigned
may reasonably request in availing itself of any rule or regulation of the SEC
allowing the undersigned to sell any such securities without registration.
Any other provisions of this letter agreement to the contrary
notwithstanding, except as set forth below, during the 30-day period immediately
preceding the Effective Time, the undersigned has not engaged and will not
engage, and after the Effective Time until such time as results covering at
least 30 days of combined operations of the Company and Parent have been
published by Parent, in the form of a quarterly earnings report, an effective
registration statement filed with the Commission, a report to the Commission on
Form 10-K, 10-Q, or 8-K, or any other public filing or announcement which
includes such combined results of operations (the period commencing 30 days
prior to the Effective Time and ending on the date of the publication of the
post-Transaction financial results is referred to herein as the "Pooling
Period"), the undersigned will not engage, in any sale, transfer, or other
disposition of, or reduce the undersigned's risk in respect of, any of the
following:
a. any shares of Parent Common Stock which the
undersigned may acquire in connection with the Transaction, or any
securities which may be paid as a dividend or otherwise distributed
thereon or with respect thereto or issued or delivered in exchange or
substitution therefore (all such shares and other securities being
referred to herein, collectively, as "Restricted Securities"), or any
option, right or other interest with respect to any Restricted
Securities;
b. the shares of Company Common Stock and options or
warrants to purchase Company Common Stock beneficially owned by the
undersigned; or
c. any shares of Company Common Stock or any other
equity securities of the Company which the undersigned purchases or
otherwise acquires after the execution of this letter agreement.
As promptly as practicable after the Effective Time, Parent will
publish results covering at least 30 days of combined operations of the Company
and Parent in the form of a quarterly earnings report, an effective registration
statement filed with the Commission, a report to the Commission on Form 10-K,
10-Q, 8-K, or any other public filing or announcement which includes such
combined results of operations, which results will be published within 60 days
of the Effective Time.
This Company Affiliate Agreement shall be governed by and construed
and enforced in accordance with the internal laws of the State of New York
without giving effect to the principles of conflicts of laws thereof and may be
executed in counterparts. This Company Affiliate Agreement shall terminate
immediately upon the termination of the Reorganization Agreement in accordance
with its terms.
(Signature Page Follows)
<PAGE>
SIGNATURE PAGE FOR COMPANY AFFILIATE AGREEMENT
SIGNATURE PAGE FOR COMPANY AFFILIATE AGREEMENT
IN WITNESS WHEREOF, the parties have caused this Company
Affiliate Agreement to be executed as of the date first above written.
<PAGE>
Very truly yours,
(print name)
Number of Shares
beneficially owned as of
the date hereof:
Accepted as of __________ _____, 1999
MULTEX.COM, INC.
By:
Name:
Title:
<PAGE>
STOCKHOLDER AGREEMENT
<PAGE>
NYOLIB1\BBM\146038.06(34_M06!.DOC)
6
This STOCKHOLDER AGREEMENT (this "Agreement") is made and
entered into as of June __, 1999 between Multex.com, Inc., a Delaware
corporation ("Parent"), and the undersigned stockholder ("Stockholder") of
Market Guide Inc., a New York corporation ("Company"). Capitalized terms used
and not otherwise defined herein shall have the respective meanings set forth in
the Reorganization Agreement described below.
RECITALS
WHEREAS, pursuant to an Agreement and Plan of Merger and
Reorganization dated as of June __, 1999 by and among Parent, Merengue
Acquisition Corp., a New York corporation and a wholly owned subsidiary of
Parent ("Merger Sub") and Company (such agreement as it may be amended is
hereinafter referred to as the "Reorganization Agreement"), Parent has agreed to
acquire the outstanding securities of Company pursuant to a statutory merger of
Merger Sub with and into Company (the "Merger") in which each outstanding share
of capital stock of Company (the "Company Capital Stock") will be converted into
shares of common stock of Parent (the "Parent Shares") at the exchange rate set
forth in the Reorganization Agreement (the "Transaction");
WHEREAS, in order to induce Parent to enter into the
Reorganization Agreement and consummate the Transaction, Company has agreed to
use its reasonable best efforts to cause each stockholder of Company who is an
affiliate of Company to execute and deliver to Parent a Stockholder Agreement
upon the terms set forth herein; and
WHEREAS, Stockholder is the registered and beneficial owner of
such number of shares of the outstanding capital stock of Company as is
indicated on the signature page of this Agreement (the "Shares").
NOW, THEREFORE, the parties agree as follows:
1. Agreement to Retain Shares.
1.1 Transfer and Encumbrance.
(a) Stockholder represents and warrants to Parent that (w)
Stockholder is the beneficial owner of the Shares; (x) the Shares constitute
Stockholder's entire interest in the outstanding capital stock and voting
securities of Company; (y) the Shares are, and will be at all times up until the
Expiration Date, free and clear of any liens, claims, options, charges or other
encumbrances; and (z) Stockholder's principal residence or place of business is
accurately set forth on the signature page hereto.
(b) Stockholder agrees not to transfer (except as may be
specifically required by court order or by operation of law, in which case any
such transferee shall agree to be bound hereby), sell, exchange, pledge or
otherwise dispose of or encumber any Shares or any New Shares (as defined
below), or to make any offer or agreement relating thereto, at any time prior to
the Expiration Date. As used herein, the term "Expiration Date" shall mean the
earlier to occur of (i) the Effective Time (as defined in the Reorganization
Agreement) or (ii) termination of the Reorganization Agreement in accordance
with the terms thereof.
1.2 New Shares. Stockholder agrees that any shares of capital
stock or voting securities of Company that Stockholder purchases or with respect
to which Stockholder otherwise acquires beneficial ownership after the date of
this Agreement and prior to the Expiration Date ("New Shares") shall be subject
to the terms and conditions of this Agreement to the same extent as if they
constituted Shares.
2. Agreement to Vote Shares. Prior to the Expiration Date, at
every meeting of the stockholders of Company at which any of the following is
considered or voted upon, and at every adjournment thereof, and on every action
or approval by written resolution of the stockholders of Company with respect to
any of the following, Stockholder shall vote the Shares and any New Shares,
subject to the absence of a preliminary or permanent injunction or other final
order by any United States federal, state or foreign court barring such action,
in favor of approval and adoption of the Reorganization Agreement and of the
Transaction and against any transaction that may prevent or materially impede
the Transaction. Notwithstanding the foregoing, nothing in this Agreement shall
limit or restrict Stockholder from acting in his capacity as a director or
officer of Company, to the extent applicable, it being understood that this
Agreement shall apply to Stockholder solely in his capacity as a stockholder of
Company.
3. Irrevocable Proxy. Stockholder hereby agrees to timely
deliver to Parent a duly executed proxy in the form attached hereto as Annex A
(the "Proxy"), such Proxy to cover the Shares and all New Shares in respect of
which Stockholder is entitled to vote at each meeting of the stockholders of
Company (including, without limitation, each written consent in lieu of a
meeting) prior to the Expiration Date. In the event that Stockholder is unable
to provide any such Proxy in a timely manner, Stockholder hereby grants Parent a
power of attorney up to and through the Expiration Date to execute and deliver
such Proxy for and on behalf of Stockholder, such power of attorney, which being
coupled with an interest, shall survive any death, disability, bankruptcy, or
any other such impediment of Stockholder. Upon the execution of this Agreement
by Stockholder, Stockholder hereby revokes any and all prior proxies or powers
of attorney given by Stockholder with respect to the Shares and agrees not to
grant any subsequent proxies or powers of attorney with respect to the Shares
until after the Expiration Date.
4. Representations, Warranties and Covenants of Stockholder.
Stockholder hereby represents, warrants and covenants to Parent as follows:
(a) Stockholder has full power and legal capacity to execute
and deliver this Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated hereby. This Agreement has been duly
and validly executed and delivered by Stockholder and constitutes the valid and
binding obligation of Stockholder, enforceable against Stockholder in accordance
with its terms. Except as may be limited by (i) the effect of bankruptcy,
insolvency, conservatorship, arrangement, moratorium or other laws affecting or
relating to the rights of creditors generally, or (ii) the rules governing the
availability of specific performance, injunctive relief or other equitable
remedies and general principles of equity, regardless of whether considered in a
proceeding in equity or at law, the execution and delivery of this Agreement by
Stockholder does not, and the performance of Stockholder's obligations hereunder
will not, result in any 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 right to terminate, amend, accelerate or cancel any right or obligation
under, or result in the creation of any lien or encumbrance on any Shares or New
Shares pursuant to, any note, bond, mortgage, indenture, contract, agreement,
lease, license, permit, franchise or other instrument or obligation to which
Stockholder is a party or by which Stockholder or the Shares or New Shares are
or will be bound or affected.
(b) Until the Expiration Date, Stockholder will not (and will
use Stockholder's reasonable best efforts to cause Company, its affiliates,
officers, directors and employees and any investment banker, attorney,
accountant or other agent retained by Stockholder, Company or any of the same,
not to): (i) initiate or solicit, directly or indirectly, any proposal, plan or
offer to acquire all or any material part of the business or properties or
capital stock of Company, whether by merger, purchase of assets, tender offer or
otherwise, or to liquidate Company or otherwise distribute to the stockholders
of Company all or any substantial part of the business, properties or capital
stock of Company (each, an "Acquisition Proposal"); (ii) initiate, directly or
indirectly, any contact with any person in an effort to or with a view towards
soliciting any Acquisition Proposal; (iii) furnish information concerning
Company's business, properties or assets to any corporation, partnership, person
or other entity or group (other than Parent, or any associate, agent or
representative of Parent) under any circumstances that could reasonably be
expected to relate to an actual or potential Acquisition Proposal; or (iv)
negotiate or enter into discussions or an agreement, directly or indirectly,
with any entity or group with respect of any potential Acquisition Proposal. In
the event Stockholder shall receive or become aware of any Acquisition Proposal
subsequent to the date hereof, Stockholder shall promptly inform Parent as to
any such matter and the details thereof to the extent possible without breaching
any other agreement to which such Stockholder is a party or violating its
fiduciary duties.
(c) Stockholder understands and agrees that if Stockholder
attempts to transfer, vote or provide any other person with the authority to
vote any of the Shares other than in compliance with this Agreement, Company
shall not, and Stockholder hereby unconditionally and irrevocably instructs
Company to not, permit any such transfer on its books and records, issue a new
certificate representing any of the Shares or record such vote unless and until
Stockholder shall have complied with the terms of this Agreement.
5. Additional Documents. Stockholder hereby covenants and
agrees to execute and deliver any additional documents necessary or desirable,
in the reasonable opinion of Parent, to carry out the purpose and intent of this
Agreement.
6. Consent and Waiver. Stockholder hereby gives any consents
or waivers that are reasonably required for the consummation of the Transaction
under the terms of any agreement to which Stockholder is a party or pursuant to
any rights Stockholder may have.
7. Termination. This Agreement and the Proxy delivered in
connection herewith shall terminate and shall have no further force or effect as
of the Expiration Date or the termination of the Reorganization Agreement in
accordance with its terms.
8. Confidentiality. Stockholder agrees (i) to hold any
information regarding this Agreement and the Transaction in strict confidence,
and (ii) not to divulge any such information to any third person, except to the
extent any of the same is hereafter publicly disclosed by Parent and to the
Stockholder's agents or advisors in connection with the execution and
performance of this Agreement.
9. Miscellaneous.
9.1 Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, then the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
9.2 Binding Effect and Assignment. This Agreement and all of
the provisions hereof shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns, but,
except as otherwise specifically provided herein, neither this Agreement nor any
of the rights, interests or obligations of the parties hereto may be assigned by
either of the parties without the prior written consent of the other. This
Agreement is intended to bind Stockholder solely as a securityholder of Company
only with respect to the specific matters set forth herein.
9.3 Amendment and Modification. This Agreement may not be
modified, amended, altered or supplemented except by the execution and delivery
of a written agreement executed by the parties hereto.
9.4 Specific Performance; Injunctive Relief. The parties
hereto acknowledge that Parent will be irreparably harmed and that there will be
no adequate remedy at law for a violation of any of the covenants or agreements
of Stockholder set forth herein. Therefore, it is agreed that, in addition to
any other remedies that may be available to Parent upon any such violation,
Parent shall have the right to enforce such covenants and agreements by specific
performance, injunctive relief or by any other means available to Parent at law
or in equity and Stockholder hereby waives any and all defenses which could
exist in its favor in connection with such enforcement and waives any
requirement for the security or posting of any bond in connection with such
enforcement.
9.5 Notices. All notices, requests, demands or other
communications that are required or may be given pursuant to the terms of this
Agreement shall be in writing and shall be deemed to have been duly given if
delivered by hand or mailed by registered or certified mail, postage prepaid, or
sent by facsimile transmission, as follows:
(a) If to Stockholder, at the address set forth below
Stockholder's signature at the end hereof.
(b) if to Parent, to:
Multex.com, Inc.
33 Maiden Lane, 5th Floor
New York, New York 10038
Attention: Philip Callaghan
Facsimile No: (212) 742-9561
Telephone No: (212) 859-9901
with a copy to:
Brobeck, Phleger & Harrison LLP
1633 Broadway, 47th Floor
New York, New York 10019
Attention: Alexander D. Lynch, Esq.
Facsimile No.: (212) 586-7878
Telephone No.: (212) 581-1600
or to such other address as any party hereto may designate for itself by notice
given as herein provided.
9.6 Governing Law. This Agreement shall be governed by,
construed and enforced in accordance with the internal laws of the State of New
York without giving effect to the principles of conflicts of law thereof.
9.7 Entire Agreement. This Agreement and the Proxy contain the
entire understanding of the parties in respect of the subject matter hereof, and
supersede all prior negotiations and understandings between the parties with
respect to such subject matter.
9.8 Counterpart. This Agreement may be executed in several
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
9.9 Effect of Headings. The section headings herein are for
convenience only and shall not affect the construction or interpretation of this
Agreement.
(Signature Page Follows)
<PAGE>
SIGNATURE PAGE TO STOCKHOLDER AGREEMENT
IN WITNESS WHEREOF, the parties have caused this Stockholder Agreement to be
executed as of the date first above written.
<PAGE>
MULTEX.COM, INC. STOCKHOLDER
By:
Name: (Signature)
Title:
(Signature of Spouse)
(Print Name of Stockholder)
(Print Street Address)
(Print City, State and Zip)
(Print Telephone Number)
(Social Security or Tax I.D. Number)
Total Number of Shares of Company Common Stock owned on the date hereof:
Common Stock:
State of Residence:
<PAGE>
SIGNATURE PAGE TO STOCKHOLDER AGREEMENT
<PAGE>
ANNEX A
IRREVOCABLE PROXY
TO VOTE STOCK OF
MARKET GUIDE INC.
The undersigned stockholder of Market Guide Inc., a New York
corporation ("Company"), hereby irrevocably appoints the members of the Board of
Directors of Multex.com, Inc., a Delaware corporation ("Parent"), and each of
them, or any other designee of Parent, up to and through the Expiration Date, as
the sole and exclusive attorneys and proxies of the undersigned, with full power
of substitution and resubstitution, to vote and exercise all voting and related
rights (to the full extent that the undersigned is entitled to do so) with
respect to all of the shares of capital stock of Company that now are or
hereafter may be beneficially owned by the undersigned, and any and all other
shares or securities of Company issued or issuable in respect thereof on or
after the date hereof (collectively, the "Shares") in accordance with the terms
of this Irrevocable Proxy. The Shares beneficially owned by the undersigned
stockholder of Company as of the date of this Irrevocable Proxy are listed on
the final page of this Irrevocable Proxy. Upon the undersigned's execution of
this Irrevocable Proxy, any and all prior proxies given by the undersigned with
respect to any Shares are hereby revoked and the undersigned agrees not to grant
any subsequent proxies with respect to the Shares until after the Expiration
Date (as defined below).
This Irrevocable Proxy is irrevocable, is coupled with an
interest, including, but not limited to, that certain Company Affiliate
Agreement dated as of even date herewith by and among Parent, and the
undersigned, and is granted in consideration of Parent entering into that
certain Agreement and Plan of Merger and Reorganization (the "Reorganization
Agreement") by and among Parent and Merengue Acquisition Corp., a New York
corporation and a wholly owned subsidiary of Parent ("Merger Sub"), and Company
which Reorganization Agreement provides for the merger of Merger Sub with and
into Company (the "Merger"). As used herein, the term "Expiration Date" shall
mean the earlier to occur of (i) such date and time as the Merger shall become
effective in accordance with the terms and provisions of the Reorganization
Agreement, and (ii) the date of termination of the Reorganization Agreement.
The attorneys and proxies named above, and each of them are
hereby authorized and empowered by the undersigned, at any time prior to the
Expiration Date, to act as the undersigned's attorney and proxy to vote the
Shares as indicated in Section 2 of the Stockholders Agreement, and to exercise
all voting rights of the undersigned with respect to the Shares (including,
without limitation, the power to execute and deliver written consents), at every
annual, special or adjourned meeting of the stockholders of Company and in every
written consent in lieu of such meeting in favor of approval and adoption of the
Reorganization Agreement and of the transactions contemplated thereby.
The attorneys and proxies named above may not exercise this
Irrevocable Proxy on any other matter except as provided above. The undersigned
stockholder may vote the Shares on all other matters.
All authority herein conferred shall survive the death or
incapacity of the undersigned and any obligation of the undersigned hereunder
shall be binding upon the heirs, personal representatives, successors and
assigns of the undersigned.
(Signature Page Follows)
<PAGE>
SIGNATURE PAGE TO IRREVOCABLE PROXY
This Irrevocable Proxy is coupled with an interest as aforesaid and is
irrevocable.
<PAGE>
Dated: June __, 1999
-------------------------------------
(Signature of Stockholder)
-------------------------------------
(Print Name of Stockholder)
Shares beneficially owned:
_______________________ shares of Company Common Stock
<PAGE>
AMENDED AND RESTATED
BY-LAWS
OF
MARKET GUIDE INC.
ARTICLE I - OFFICES
The principal office of the Corporation shall be at 2001 Marcus Avenue, Suite
South 200, Lake Success, NY 11042. The Corporation may also have offices at such
other places within or without the State of New York as the board may from time
to time determine or the business of the Corporation may require. ARTICLE ii-
SHAREHOLDERS
PLACE OF MEETINGS.
Meetings of shareholders shall be held at the principal office of the
Corporation or at such place within or without the State of New York as the
board shall authorize.
ANNUAL MEETING.
The annual meeting of the shareholders shall be held on the 1st Wednesday of
August in each year or as soon thereafter as practicable, when the shareholders
shall elect a board and transact such other business as may properly come before
the meeting.
SPECIAL MEETINGS.
Special meetings of the shareholders may be called by the board or by the
president and shall be called by the president or the secretary at the request
in writing of a majority of the board or at the request in writing by
shareholders owning a majority in amount of the shares issued and outstanding.
Such request shall state the purpose or purposes of the proposed meeting.
Business transacted at a special meeting shall be confined to the purposes
stated in the notice.
NOTICE OF MEETINGS OF SHAREHOLDERS.
Written notice of each meeting of shareholders shall state the purpose or
purposes for which the meeting is called, the place, date and hour of the
meeting and unless it is the annual meeting, shall indicate that it is being
issued by or at the direction of the person or persons calling the meeting.
Notice shall be given either personally or by mail to each shareholder entitled
to vote at such meeting, not less than ten nor more than fifty days before the
date of the meeting. If action is proposed to be taken that might entitle
shareholders to payment for their shares, the notice shall include a statement
of that purpose and to that effect. If mailed, the notice is given when
deposited in the United States mail, with postage thereon prepaid, directed to
the shareholder at his address as it appears on the record of shareholders, or,
if he shall have filed with the secretary a written request that notices to him
be mailed to some other address, then directed to him at such other address.
WAIVERS.
Notice of meeting need not be given to any shareholder who signs a waiver of
notice, in person or by proxy, whether before or after the meeting. The
attendance of any shareholder at a meeting, in person or by proxy, without
protesting prior to the conclusion of the meeting the lack of notice of such
meeting, shall constitute a waiver of notice by him.
QUORUM OF SHAREHOLDERS.
Unless the certificate of incorporation provides otherwise, the holders of a
majority of the shares entitled to vote thereat shall constitute a quorum at a
meeting of shareholders for the transaction of any business, provided that when
a specified item of business is required to be voted on by a class or classes,
the holders of a majority of the shares of such class or classes shall
constitute a quorum for the transaction of such specified item of business. When
a quorum is once present to organize a meeting, it is not broken by the
subsequent withdrawal of any shareholders. The shareholders present may adjourn
the meeting despite the absence of a quorum.
CHAIRMAN.
At each meeting of the stockholders, the chairman or, in his absence or
inability to act, any person chosen by the majority of those stockholders
present in person or represented by proxy shall act as chairman of the meeting.
The secretary or, in his absence or inability to act, any person appointed by
the chairman of the meeting shall act as secretary of the meeting and keep the
minutes thereof.
ORDER OF BUSINESS.
The order of business at all meetings of the stockholders shall be as determined
by the chairman of the meeting.
LIST OF STOCKHOLDERS.
A list of the stockholders entitled to vote at any meeting shall be produced and
kept at the time and place of the meeting during the whole time thereof, and may
be inspected by any stockholder who is present.
INSPECTORS.
The board may, in advance of any meeting of stockholders, appoint one or more
inspectors to act at such meeting or any adjournment thereof. If the inspectors
shall not be so appointed or if any of them shall fail to appear or act, the
chairman of the meeting shall appoint inspectors. Each inspector, before
entering upon the discharge of his duties, shall take and sign an oath
faithfully to execute the duties of inspector at such meeting with strict
impartiality and according to the best of his ability. The inspectors shall
determine the number of shares outstanding and the voting power of each, the
number of shares represented at the meeting, the existence of a quorum, the
validity and effect of proxies, and shall receive votes, ballots or consents,
hear and determine all challenges and questions arising in connection with the
right to vote, count and tabulate all votes, ballots or consents, determine the
result, and do such acts as are proper to conduct the election or vote with
fairness to all stockholders. On request of the chairman of the meeting or any
stockholder entitled to vote thereat, the Inspectors shall make a report in
writing of any challenge, question or matter determined by them and shall
execute a certificate of any fact found by them. No director or candidate for
the office of director shall act as an inspector of an election of directors.
Inspectors need not be stockholders.
PROXIES.
Every shareholder entitled to vote at a meeting of shareholders or to express
consent or dissent without a meeting may authorize another person or persons to
act for him by proxy. Every proxy must be signed by the shareholder or his
attorney-in-fact. No proxy shall be valid after expiration of eleven months from
the date thereof unless otherwise provided in the proxy. Every proxy shall be
revocable at the pleasure of the shareholder executing it, except as otherwise
provided by law.
QUALIFICATION OF VOTERS.
Every shareholder of record shall be entitled at every meeting of shareholders
to one vote for every share standing in his name on the record of shareholders,
unless otherwise provided in the certificate of incorporation.
VOTE OF SHAREHOLDERS.
Except as otherwise required by statute or by the certificate of incorporation,
directors shall be elected by a plurality of the votes cast at a meeting of
shareholders by the holders of shares entitled to vote in the election;
all other corporate action shall be authorized by a majority of the votes cast.
written consent of shareholders.
Any action that may be taken by vote may be taken without a meeting on written
consent, setting forth the action so taken, signed by the holders of all the
outstanding shares entitled to vote thereon or signed by such lesser number of
holders as may be provided for in the certificate of incorporation. ARTICLE III
- - DIRECTORS
board of directors.
Subject to any provision in the certificate of incorporation the business of the
corporation shall be managed by its board of directors, each of whom shall be at
least 18 years of age and need not be shareholders.
number of directors.
The number of directors shall be no less than three nor no more than nine. When
all of the shares are owned by less than three shareholders, the number of
directors may be less than three but not less than the number of shareholders.
The board of directors shall determine the number of directors to be elected at
anytime.
election and term of directors.
At each annual meeting of shareholders, the shareholders shall elect directors
to hold office until the next annual meeting. Each director shall hold office
until the expiration of the term for which he is elected and until his successor
has been elected and qualified, or until his prior resignation or removal.
newly created directorships and vacancies.
Newly created directorships resulting from an increase in the number of
directors and vacancies occurring in the board for any reason except the removal
of directors without cause may be filled by a vote of a majority of the
directors then in office, although less than a quorum exists, unless otherwise
provided in the certificate of incorporation. Vacancies occurring by reason of
the removal of directors without cause shall be filled by vote of the
shareholders unless otherwise provided in the certificate of incorporation. A
director elected to fill a vacancy caused by resignation, death or removal shall
be elected to hold office for the unexpired term of his predecessor.
removal of directors.
Any or all of the directors may be removed for cause by vote of the shareholders
or by action of the board. Directors may be removed without cause only by vote
of the shareholders.
resignation.
A director may resign at any time by giving written notice to the board, the
president or the secretary of the corporation. Unless otherwise specified in the
notice, the resignation shall take effect upon receipt thereof by the board or
such officer, and the acceptance of the resignation shall not be necessary to
make it effective.
quorum of directors.
Unless otherwise provided in the certificate of incorporation, a majority of the
entire board shall constitute a quorum for the transaction of business or of any
specified item of business.
action of the board.
Unless otherwise required by law, the vote of a majority of the directors
present at the time of the vote, if a quorum is present at such time, shall be
the act of the board. Each director present shall have one vote regardless of
the number of shares, if any, which he may hold.
place and time of board meetings.
The board may hold its meetings at the office of the corporation or at such
other places, either within or without the State of New York, as it may from
time to time determine.
regular annual meeting.
A regular annual meeting of the board shall be held immediately following the
annual meeting of shareholders at the place of such annual meeting of
shareholders.
notice of meetings of the board, adjournment.
Regular meeting of the board may be held without notice at such time and place
as it shall from time-to-time determine. Special meetings of the board shall be
held upon notice to the directors and may be called by the president upon three
days notice to each director either personally or by mail or by wire; special
meetings shall be called by the president or by the secretary in a like manner
on written request of two directors. Notice of a meting need not be given to any
director who submits a waiver of notice whether before or after the meeting or
who attends the meeting without protesting prior thereto or at its commencement,
the lack of notice to him.
A majority of the directors present, whether or not a quorum is present, may
adjourn any meeting to another time and place. Notice of the adjournment shall
be given all directors who were absent at the time of the adjournment and,
unless such time and place are announced at the meeting, to the other directors.
action without a meeting.
Any action required or permitted to be taken at any meeting of the board of
directors may be taken without a meeting if all members of the board consent
thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the board.
telephonic participation.
Any one or more members of the board, or any committee thereof, may participate
in a meeting of the board or such committee by means of a conference telephone
or similar communications equipment allowing all persons participating in the
meeting to hear each other at the same time; and participation by such means
shall constitute presence in person at a meeting.
chairman.
At each meeting of the board, the chairman or, in his absence or inability to
act, another director chosen by a majority of the directors present shall act as
chairman of the meeting and preside thereat. The secretary or, in his absence or
inability to act, any person appointed by the chairman shall act as secretary of
the meeting and keep the minutes thereof.
contracts.
No contract or other transaction between this corporation and any other
corporation shall be impaired, affected or invalidated, nor shall any director
be liable in any way by reason of the fact that any one or more of the directors
of this corporation is or are interested in, or is a director or officer, or are
directors of such other corporation, provided that such facts are disclosed or
made know to the board of directors.
Any director, personally and individually, may be a party to or may be
interested in any contract or transaction of this corporation, and no director
shall be liable in any way by reason of such interest, provided that the fact of
such interest be disclosed or made known to the board of directors, and provided
that the board of directors shall authorize, approve or ratify such contract or
transaction by the vote (not counting the vote of any such director) of a
majority of a quorum, notwithstanding the presence of any such director at the
meeting at which such action is taken. Such director or directors may be counted
in determining the presence of a quorum at such meeting. This Section shall not
be construed to impair or invalidate or in any way affect any contract or other
transaction which would otherwise be valid under the law (common, statutory or
otherwise) applicable thereto.
executive and other committees.
The board, by resolution adopted by a majority of the entire board, may
designate from among its members an executive committee and other committees,
each consisting of three or more directors. Each such committee shall serve at
the pleasure of the board.
compensation.
No compensation shall be paid to directors, as such, for their services, but by
resolution of the board a fixed sum and expenses for actual attendance at each
regular or special meeting of the board may be authorized. Nothing herein
contained shall be construed to preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. article
iv- officers
offices, election, term.
Unless otherwise provided for in the certificate of incorporation, the board may
elect or appoint a president, one or more vice-presidents, a secretary and a
treasurer, and such other officers as it may determine, who shall have such
duties, powers and functions as hereinafter provided.
All officers shall be elected or appointed to hold office until the meeting of
the board following the annual meeting of shareholders.
Each officer shall hold office for the term for which he is elected or appointed
and until his successor has been elected or appointed and qualified.
removal, resignation, salary, etc.
Any officer elected or appointed by the board may be removed by the board with
or without cause.
In the event of the death, resignation or removal of an officer, the board in
its discretion may elect or appoint a successor to fill the unexpired term.
Any two or more offices may be held by the same person, except the offices of
president and secretary. When all of the issued and outstanding stock of the
corporation is owned by one person, such person may hold all or any combination
of offices.
The salaries of all officers shall be fixed by the board.
The directors may require any officer to give security for the faithful
performance of his duties.
the PRESIDENT.
The president shall be the chief executive officer of the corporation and shall
have general and active supervision and direction over the business operations
and affairs of the corporation and over its several officers, agents and
employees, subject, however, to the direction and the control of the board of
directors.
vice president.
Each vice president shall have such powers and perform such duties as from time
to time may be assigned to him by the board. the treasurer.
The treasurer or assistant treasurer designated by the secretary or by the board
in the treasurer's absence or disability, shall:
have charge and custody of, and be responsible for, all the funds and securities
of the corporation;
keep full and accurate accounts of receipts and disbursements in books belonging
to the corporation;
cause all moneys and other valuables to be deposited to the credit of the
corporation in such depositories as may be designated by the board;
receive, and give receipts for, moneys due and payable to the corporation from
any source whatsoever;
disburse the funds of the corporation and supervise the investment of its funds
as ordered or authorized by the board, taking proper vouchers therefor; and
in general, have all the powers and perform all the duties incident to the
office of treasurer and such other duties as from time to time may be assigned
to him by the board, the chairman of the board or the president.
the secretary.
The secretary or assistant secretary designated by the board in the secretary's
absence or disability, shall:
record the proceedings of the meetings of the stockholders and directors in a
minute book to be kept for that purpose;
see that all notices are duly given in accordance with the provisions of these
By-Laws and as required by law;
be custodian of the records and the seal of the corporation and affix and attest
the seal to all stock certificates of the corporation (unless the seal of the
corporation on such certificates shall be a facsimile, as hereinafter provided)
and affix and attest the seal to all other documents to be executed on behalf of
the corporation under its seal;
see that the books, reports, statements, certificates and other documents and
records required by law to be kept and filed are properly kept and filed; and
in general, have all the powers and perform all the duties incident to the
office of secretary and such other duties as from time to time may be assigned
to him by the board, the chairman of the board or the president.
sureties and bonds.
In case the board shall so require, any officer or agent of the corporation
shall execute to the corporation a bond in such sum and with such surety or
sureties as the board may direct, conditioned upon the faithful performance of
his duties to the corporation and including responsibility for negligence and
for the accounting for all property, funds or securities of the corporation
which may come into his hands.
shares of other corporations.
Whenever the corporation is the holder of shares of any other corporation, any
right or power of the corporation as such shareholder (including the attendance,
acting and voting at shareholders' meetings and execution of waivers, consents,
proxies or other instruments) may be exercised on behalf of the corporation by
the president, any vice president, or such other person as the board of
directors may authorize. article v - certificates
certificates.
The shares of the corporation shall be represented by certificates. They shall
be numbered and entered in the books of the corporation as they are issued. They
shall exhibit the holder's name and the number of shares and shall be signed by
the chairman of the board, the president or a vice president and the treasurer
or the secretary and shall bear the corporate seal.
lost or destroyed certificates.
The board may direct a new certificate or certificates to be issued in place of
any certificate or certificates theretofore issued by the corporation, alleged
to have been lost or destroyed, upon the making of an affidavit of the fact by
the person claiming the certificate to be lost or destroyed. When authorizing
such issue of a new certificate or certificates, the board may, in its
discretion and as a condition precedent to the issuance thereof, require the
owner of such lost or destroyed certificate or certificates, or his legal
representative, to advertise the same in such manner as it shall require and/or
give the corporation a bond in such sum and with such surety or sureties as it
may direct as indemnity against any claim that may be made against the
corporation with respect to the certificate alleged to have been lost or
destroyed.
transfers of shares.
Upon surrender to the corporation or the transfer agent of the corporation of a
certificate for shares duly endorsed or accompanied by proper evidence of
succession, assignment or authority to transfer, it shall be the duty of the
corporation to issue a new certificate to the person entitled thereto, and
cancel the old certificate; every such transfer shall be entered on the transfer
book of the corporation which shall be kept at its principal office.
The corporation shall be entitled to treat the holder of record of any share as
the holder in fact thereof and, accordingly, shall not be bound to recognize any
equitable or other claim to or interest in such share on the part of any other
person whether or not it shall have express or other notice thereof, except as
expressly provided by the laws of New York.
record date.
In lieu of closing the share records of the corporation, the board of directors
may fix, in advance, a date not exceeding fifty days, nor less than ten days, as
the record date for the determination of shareholders entitled to receive notice
of, or to vote at, any meeting of shareholders, or to consent to any proposal
without a meeting, or for the purpose of determining shareholders entitled to
receive payment of any dividends, or allotment of any rights, or for the purpose
of any other action. If no record date is fixed, the record date for the
determination of shareholders entitled to notice of or to vote at a meeting of
shareholders shall be at the close of business on the day next preceding the day
on which notice is given, or, if no notice is given, the day on which the
meeting is held; the record date for determining shareholders for any other
purpose shall be at the close of business on the day on which the resolution of
the directors relating thereto is adopted. When a determination of shareholders
of record entitled to notice of or to vote any meeting of shareholders has been
made as provided for herein, such determination shall apply to any adjournment
thereof, unless the directors fix a new record date for the adjourned meeting.
article vi - dividends
Subject to the provisions of the certificate of incorporation and to applicable
law, dividends on the outstanding shares of the corporation may be declared in
such amounts and at such time or times as the board may determine. Before
payment of any dividend, there may be set aside out of the net profits of the
corporation available for dividends such sum or sums as the board from time to
time in its absolute discretion deems proper as a reserve fund to meet
contingencies, or for equalizing dividends, or for repairing or maintaining any
property of the corporation, or for such other purpose as the board shall think
conducive to the interests of the corporation, and the board may modify or
abolish any such reserve. article vii - corporate seal
The seal of the corporation shall be circular in form and bear the name of the
corporation, the year of its organization and the words "Corporate Seal, New
York." The seal may be used by causing it to be impressed directly on the
instrument or writing to be sealed, or upon adhesive substance affixed thereto.
The seal on the certificates for shares or on any corporation obligation for the
payment of money may be a facsimile, engraved or printed. article viii -
EXECUTION of instruments
All corporate instruments and documents shall be signed or countersigned,
executed, verified or acknowledged by such officer or officers or other person
or persons as the board may from time to time designate. article ix - fiscal
year
The fiscal year shall begin the first day of March in each year.
article x - References to certificate of incorporation
Reference to the certificate of incorporation in these By-Laws shall include all
amendments thereto or changes thereof unless specifically excepted.
article xi - indemnification of officers and directors
The officers and directors of the Corporation shall be entitled to indemnifica-
tion to the maximum extent permitted by New York State law.
article xii - by-law changes
AMENDMENT, REPEAL, ADOPTION, ELECTION OF DIRECTORS.
Except as otherwise provided in the certificate of incorporation the By-Laws may
be amended, repealed or adopted by vote of the holders of the shares at the time
entitled to vote in the election of any directors. By-Laws may also be amended,
repealed or adopted by the board but any By-Law adopted by the board may be
amended by the shareholders entitled to vote thereon as hereinabove provided.
If any By-Law regulating an impending election of directors is adopted, amended
or repeated by the board, there shall be set forth in the notice of the next
meeting of shareholders for the election of directors the By-Law so adopted,
amended or repealed, together with a concise statement of the changes made.
<PAGE>
For Immediate Release
NEWS RELEASE
Contact:
Media Relations Investor Relations Media Relations
For Multex.com For Multex.com For Market Guide:
Courtney Darby/Renee Joseph Jaffoni Peter Sluka
Kemish Jaffoni & Collins Market Guide Inc.
Middleberg + Associates Incorporated (516) 327-2400 Ext:145
(212) 699-2545/2552 (212) 835-8500 [email protected]
[email protected] [email protected]
[email protected]
Multex.com Agrees to Acquire Market Guide
Market Guide Acquisition Valued at Approximately $159 million
at the Time of Announcement
NEW YORK, June 23, 1999 -- Multex.com, Inc. (Nasdaq: MLTX) and Market Guide Inc.
(Nasdaq: MARG) today announced they have signed a definitive agreement for
Multex.com to acquire Market Guide Inc., a leading provider of financial
information on the Internet. The transaction is structured as a merger of a
newly formed subsidiary with and into Market Guide, with Market Guide
shareholders receiving approximately 5.6 million shares of Multex.com stock.
Market Guide is an industry-leading Internet provider of value-added financial
content for both individual investors and institutional investors, covering over
12,000 publicly traded companies. Following the consummation of the acquisition,
Market Guide expects to make Multex.com's investment research and earnings
estimates available through its Web site, http://www.marketguide.com, as well as
through its over 100 leading Internet distribution partners, which include
leading brands such as America Online, Ameritrade, Bridge Information Systems,
CBS MarketWatch, Charles Schwab & Co., CNNfn, E-Trade, FactSet Research Systems,
Reuters, The Motley Fool, The Street.com, Wall Street Journal Interactive,
Waterhouse Securities and Yahoo!.
The acquisition will enable Multex.com to leverage Market Guide's extensive
Internet distribution network, unique financial content and brand. In addition,
the acquisition will allow Multex.com to substantially increase the quantity and
scope of its proprietary financial content and analysis, strengthening the
Company's position as a leading online investment research network for
individual and institutional investors.
Multex.com expects to integrate Market Guide's proprietary financial databases
into all its Internet research services, including MultexNET, MultexEXPRESS,
Multex Research-on-Demand and Multex Investor Network.
"Market Guide represents an excellent strategic and financial transaction for
Multex.com. We look forward to leveraging Market Guide's premiere content as
well as working closely with Market Guide's strategic distribution partners,"
said Isaak Karaev, president and CEO of
(more)
Page 2
Multex.com. "Both Multex.com and Market Guide are dynamic brands within the
rapidly expanding Internet financial services market. By combining our
complementary business models, proprietary content, audience reach, and Internet
technology, we believe we have the opportunity to create one of the largest and
fastest growing investment and financial research destinations on the Internet."
"Both Market Guide and Multex.com share the same vision of being the benchmark
for high quality financial content, research and analysis over the Internet,"
said Homi Byramji, President and CEO of Market Guide. "Together, we will supply
more professional Web sites with investment data than any other financial
information provider. In addition, the combination of our broad network of
Internet distribution partners will enable millions of individual and
institutional investors worldwide to access our leading content."
Under the terms of the merger agreement, Market Guide shareholders will receive
one share of Multex.com stock for each outstanding share of Market Guide stock.
The acquisition, which is expected to close within 120 days, has been approved
by both companies' Boards of Directors and is subject to customary conditions
including approval by the stockholders of Multex.com and Market Guide.
Multex.com, Inc. expects to account for this transaction under the pooling
method of accounting. Market Guide Inc. will retain its key management and be
operated as a wholly owned subsidiary of Multex.com, Inc. In addition to
continuing to serve as Market Guide's President and CEO, Homi Byramji will join
Multex.com's Board of Directors.
About Multex.com, Inc.
Multex.com (http://www.multex.com) is a leading provider of online investment
research and information services designed to meet the needs of individual and
institutional investors, including investment banks, brokerage firms and
corporations. Multex.com's services enable timely online access to over 1.2
million research reports and other investment information on over 20,000
companies published by more than 500 investment banks, brokerage firms and
third-party research providers worldwide. More than 1,000,000 individual
investors, institutional investors and financial professionals, including mutual
fund managers, portfolio managers, brokers and their clients have access to
Multex.com's services. For individual investors, Multex.com has recently
launched the Multex Investor Network (http://www.multexinvestor.com), an
Internet service targeting the rapidly growing online individual investor
market.
About Market Guide Inc.
Market Guide Inc., the benchmark for quality financial information, is the
leader in providing the broadest coverage of professional grade financial data
over the Internet. Market Guide supplies more professional Web sites with
quality investment data than any other database and software company. Market
Guide specializes in the compilation, integration, display and delivery of a
superior quality database of descriptive and analytic information on over 12,000
publicly traded domestic and foreign corporations. Well known to professional
investors for 16 years, the company distributes its services through more than
100 on-line vendors and independent finance oriented web sites including, ADP,
AltaVista, America Online (NYSE: AOL), Ameritrade Holding Corp. (Nasdaq: AMTD),
Bridge Information Systems, Briefing.com, CNNfn, Charles Schwab & Co., (NYSE:
SCH), DBC (Nasdaq: DBCC), FactSet Research Systems, Individual Investor Group
(Nasdaq: INDI), National Discount Brokers Group (NYSE: NDB), One Source (Nasdaq:
ONES), PC Quote (Amex: PQT), Pointcast, Quote.com, Reuters (Nasdaq: RTRSY),
Telemet America, The Motley Fool, TheStreet.com (Nasdaq: TSCM), Track Data
(Nasdaq: TRAC), Wall Street Journal Interactive, Wall Street Source, Waterhouse
Securities and Yahoo! (Nasdaq: YHOO), as well as through its own web site - The
Market Guide Investment Center (http://www.marketguide.com).
Forward-looking statements in this release are made pursuant to the safe harbor
provisions of the Private Securities Litigation Reform Act of 1995. You are
cautioned that such forward-looking statements involve significant risks and
uncertainties. Actual results may differ materially from those in the
forward-looking statements due to a number of factors, including and without
limitation: (i) risks relating to the merger, such as risks that the proposed
merger may not be consummated, risks involved in assimilating Market Guide,
risks involved in integrating, retaining and motivating key Market Guide
personnel, risks related to integrating and managing geographically-dispersed
operations, risks related to integrating the technologies and infrastructures of
the companies, and risks related to the acceptance by Market Guide's customers
of the merger; (ii) risks inherent in Market Guide's business, such as its
dependence on maintaining relationships with key customers; (iii) the risk that
Market Guide's customers and distribution partners will not utilize any
additional services of the combined company; (iv) risks relating to the
achievement by Multex.com of new revenues from Market Guide's operations; and
(v) risks relating to Multex.com's ongoing operations as detailed in
Multex.com's filings from time to time with the Securities and Exchange
Commission. Multex.com does not assume any obligation to update the
forward-looking information contained in this press release.
SOURCE: Multex.com, Inc.
