EXHIBIT 2.1
STOCK PURCHASE AGREEMENT
AMONG
DIGITAL ASSET MANAGEMENT, INC.,
a Delaware corporation,
ACXIOM CORPORATION,
a Delaware corporation,
and
PC411, INC.,
a Delaware corporation
Dated as of October 31, 1998
INDEX TO STOCK PURCHASE AGREEMENT
Page
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1. PURCHASE AND SALE OF SHARES............................................................................-1-
(a) PURCHASE OF PREFERRED STOCK BY ACXIOM.........................................................-1-
(b) ACQUISITION OF PREFERRED STOCK BY PC411.......................................................-1-
2. ACQUIRED ASSETS; EXCLUDED ASSETS; ASSUMED LIABILITIES; AND EXCLUDED LIABILITIES........................-2-
(a) ACQUIRED ASSETS...............................................................................-2-
(b) EXCLUDED ASSETS...............................................................................-3-
(c) ASSUMED LIABILITIES...........................................................................-3-
(d) EXCLUDED LIABILITIES..........................................................................-4-
(e) PC411'S PAYMENT AND PERFORMANCE OF THE EXCLUDED LIABILITIES...................................-5-
(f) NAME CHANGE...................................................................................-5-
(g) FURTHER ASSURANCES............................................................................-5-
3. TAX MATTERS............................................................................................-5-
4. RECEIVABLE PAYMENTS....................................................................................-6-
5. ENDORSEMENT OF CHECKS..................................................................................-6-
6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY..........................................................-6-
(a) ORGANIZATION, GOOD STANDING, AND QUALIFICATION................................................-6-
(b) AUTHORIZATION.................................................................................-6-
(c) NON-CONTRAVENTION.............................................................................-7-
(d) CAPITALIZATION................................................................................-7-
(e) NO SUBSIDIARIES...............................................................................-7-
(f) DUE AUTHORIZATION OF SHARES...................................................................-7-
(g) CONVERTIBLE SECURITIES, OPTIONS, WARRANTS, RESERVED SHARES....................................-8-
(h) LITIGATION....................................................................................-8-
(i) GOVERNMENTAL LICENSES AND PERMITS.............................................................-8-
(j) FULL DISCLOSURE...............................................................................-8-
(k) FINDER........................................................................................-8-
(l) EMPLOYEE BENEFIT PLANS........................................................................-8-
(m) INSURANCE.....................................................................................-9-
(n) POWERS OF ATTORNEY............................................................................-9-
(o) GUARANTIES....................................................................................-9-
(p) OFFICERS AND DIRECTORS; BANK ACCOUNTS.........................................................-9-
(q) SECURITIES LAW EXEMPTION......................................................................-9-
(r) COMPLIANCE WITH LAWS..........................................................................-9-
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7. REPRESENTATIONS AND WARRANTIES OF THE INVESTORS.......................................................-10-
(a) ORGANIZATION, GOOD STANDING AND QUALIFICATION................................................-10-
(b) AUTHORIZATION................................................................................-10-
(c) NO CONFLICTS.................................................................................-10-
(d) BINDING EFFECT...............................................................................-10-
(e) INVESTMENT INTENT............................................................................-10-
(f) ACCESS TO DATA...............................................................................-11-
(g) FINDER.......................................................................................-11-
(h) FULL DISCLOSURE..............................................................................-11-
7A. REPRESENTATIONS AND WARRANTIES OF PC411...............................................................-11-
(a) ASSETS AND PROPERTIES........................................................................-11-
(b) CONDITION OF ASSETS AND PROPERTIES...........................................................-11-
(c) LEGAL PROCEEDINGS, ETC.......................................................................-12-
8. COVENANTS OF THE COMPANY..............................................................................-12-
9. PRESS RELEASES........................................................................................-12-
10. CLOSING...............................................................................................-12-
(a) DELIVERIES BY THE COMPANY....................................................................-12-
(b) DELIVERIES BY THE INVESTORS..................................................................-13-
(c) OTHER DELIVERIES.............................................................................-13-
(d) LOAN DOCUMENTS...............................................................................-14-
11. INDEMNIFICATION.......................................................................................-14-
(a) INDEMNIFICATION BY THE COMPANY...............................................................-14-
(b) INDEMNIFICATION BY THE INVESTORS.............................................................-14-
(c) NOTICE AND DEFENSE...........................................................................-14-
12. SURVIVAL..............................................................................................-15-
13. EXPENSES..............................................................................................-15-
14. MISCELLANEOUS.........................................................................................-16-
(a) BINDING EFFECT AND BENEFIT; ASSIGNMENT.......................................................-16-
(b) FURTHER ASSURANCES...........................................................................-16-
(c) MODIFICATION.................................................................................-16-
(d) HEADINGS AND CAPTIONS........................................................................-16-
(e) NOTICE.......................................................................................-16-
(f) SEVERABILITY.................................................................................-18-
(g) WAIVER.......................................................................................-18-
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(h) GENDER AND NUMBER............................................................................-18-
(i) ENTIRE AGREEMENT.............................................................................-18-
(j) GOVERNING LAW................................................................................-18-
(k) INCORPORATION BY REFERENCE...................................................................-18-
(l) COUNTERPARTS.................................................................................-18-
(m) AUTHORITY....................................................................................-18-
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STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement ("Agreement") is executed and delivered
effective as of October 31, 1998 (the "Closing Date"), by and among DIGITAL
ASSET MANAGEMENT, INC. (the "Company"), a Delaware corporation; ACXIOM
CORPORATION ("Acxiom"), a Delaware corporation and PC411, INC. ("PC411"), a
Delaware corporation. Each of Acxiom and PC411 is sometimes referred to herein
as an Investor or, collectively as the Investors.
RECITALS:
WHEREAS, the Company has been formed for the purpose of effecting the
transactions contemplated hereby; and
WHEREAS, on the terms and conditions set forth herein, Acxiom desires
to purchase 1,250 shares of the Company's voting convertible preferred stock,
par value $0.01 per share (the "Preferred Stock") for $1,250,000 in cash; and
WHEREAS, on the terms and conditions set forth herein, PC411 desires to
acquire 1,250 shares of the Preferred Stock in exchange for the Acquired Assets
(as defined below) subject to the Assumed Liabilities (as defined below).
NOW, THEREFORE, in exchange for the representations, warranties,
promises, covenants and consideration contained herein, and other good and
valuable consideration, the sufficiency of which is hereby acknowledged, the
parties hereto, intending to be legally bound, agree as follows:
1. PURCHASE AND SALE OF SHARES.
(a) PURCHASE OF PREFERRED STOCK BY ACXIOM. Simultaneous with the
execution and delivery of this Agreement, and upon the terms and subject to the
conditions contained herein, the Company is selling, assigning, transferring and
delivering to Acxiom and Acxiom is purchasing and accepting 1,250 shares of
Preferred Stock for an aggregate purchase price of $1,250,000 (the "Acxiom
Purchase Price"). The Company hereby acknowledges receipt of the Acxiom Purchase
Price by wire transfer of immediately available funds to an account or accounts
designated by the Company by written wire transfer instructions previously
delivered to Acxiom.
(b) ACQUISITION OF PREFERRED STOCK BY PC411. Simultaneous with the
execution and delivery of this Agreement, and upon the terms and conditions
contained herein, the Company is issuing, selling, assigning, transferring and
delivering to PC411 and PC411 is purchasing, acquiring and accepting 1,250
shares of Preferred Stock in exchange for all of PC411's right, title and
interest in and to the Acquired Assets subject to the Assumed Liabilities.
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2. ACQUIRED ASSETS; EXCLUDED ASSETS; ASSUMED LIABILITIES; AND EXCLUDED
LIABILITIES.
(a) ACQUIRED ASSETS. The term "Acquired Assets" shall mean all of
PC411's right, and title and interest in and to all of the non-cash assets
relating to its on-line data distribution service business (the "Business")
including, without limitation, the following but excluding the Excluded Assets
(as defined in Section 2(b) below):
(i) PC411's corporate name, "PC411, Inc.", the company name
and/or trade names "PC411", "PC411 for Windows 3.0", "PC411 for Windows CE" and
all variations thereof, including the registered service mark for "PC411";
provided, however, that PC411 shall be entitled to continue to use the name
"PC411, Inc." as its corporate name until the next annual meeting of PC411's
stockholders (to be held as soon as reasonably practicable) at which time the
name will be amended so as not to include the words "PC411";
(ii) all of PC411's rights under contracts relating to the
Business (the "Contracts") as set forth on Schedule 2(a)(ii), including, without
limitation, the Data License Agreement with Acxiom (the "Acxiom License") and
all bundling and OEM arrangements (collectively, the "Bundling Agreements");
(iii) all of PC411's accounts receivable, inventories and
prepaid expenses relating to the Business as more particularly set forth on
Schedule 2(a)(iii) hereto:
(iv) all of PC411's property, plant and equipment relating to
the Business, including machinery, leasehold improvements and office furniture,
as more particularly set forth on Schedule 2(a)(iv) hereto;
(v) all of PC411's hardware and software relating to the
Business;
(vi) all of PC411's subscriber contracts relating to the
Business;
(vii) all of PC411's customer lists, licenses, permits,
registrations, books and records relating to the Business, including business
development plans, advertising materials, catalogues, correspondence, mailing
lists, sales and promotional materials and other records used in or required to
engage in the Business as previously conducted by PC411;
(viii) all rights to PC411's website and domain name as more
particularly set forth on Schedule 2(a)(viii) hereto;
(ix) all copyrights, patents, trade secrets and know-how
related to the Business and all rights to software and other intellectual
property in development and related research as more particularly set forth on
Schedule 2(a)(ix) hereto;
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(x) all of PC411's rights in registered and common law
trademarks, service marks and trade names used in connection with the Business
as more particularly set forth on Schedule 2(a)(x) hereto;
(xi) all rights to service agreements and insurance policies
relating to the Business as well as rights to proceeds thereunder; and
(xii) all goodwill of PC411 relating to the Business.
(b) EXCLUDED ASSETS. The Acquired Assets shall not include any of the
following (the "Excluded Assets"):
(i) all of PC411's cash and cash equivalents;
(ii) all of PC411's marketable securities and other
investments in financial assets and cash pledged as collateral for a letter of
credit collateralizing a contract to purchase equipment and credit card
facilities;
(iii) all of PC411's bank and brokerage accounts;
(iv) all of PC411's accrued interest receivable;
(v) all of PC411's pay and other advances or loans to the
persons listed on Schedule 2(b)(v) hereto;
(vi) all of PC411's assets not used in connection with the
Business, including, without limitation, assets used by PC411 or PC411's
subsidiary, Controlled Distribution Systems, Inc., for the marketing of an
inventory control system for tobacco products; and
(vii) all of PC411's right, title and interest in and to Suite
411 at the premises located at 9800 S. La Cienega Boulevard, Inglewood,
California (the "Premises") pursuant to the lease agreement, dated July 25, 1995
between PC411, as tenant, and Trizec Properties, Inc., as Landlord (the
"Lease").
(c) ASSUMED LIABILITIES. Upon the Closing, the Company shall assume and
agree to timely and fully pay, perform and discharge the following obligations
and liabilities of PC411 (the "Assumed Liabilities"):
(i) all liabilities, duties and obligations under the
Contracts (other than the Acxiom License but including the Bundling Agreements)
arising on or after the Closing Date;
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(ii) all liabilities, duties and obligations arising under and
all accounts payable and accrued expenses relating to any amounts due under the
Acxiom License;
(iii) all obligations of PC411 to provide the PC411 service to
subscribers, including all services relating to deferred revenue and other
obligations or liabilities related thereto arising on or after the Closing Date;
(iv) any other liabilities arising under the Bundling
Agreements prior to the Closing Date to the extent such liabilities do not
exceed $10,000 in the aggregate;
(v) all liabilities and obligations for rent and additional
rent under the Lease allocable to the period beginning on the date hereof and
ending on November 30, 1998; and
(vi) all other liabilities relating to the Business arising
prior to the Closing Date (other than transfer and sales taxes arising in
connection with the transfer of the Acquired Assets to the Company) to the
extent such liabilities do not exceed $10,000 in the aggregate.
(d) EXCLUDED LIABILITIES. Notwithstanding anything contained herein to
the contrary, the Company shall not assume the following liabilities or
obligations of PC411 (the "Excluded Liabilities"):
(i) any liability or obligation of PC411, including legal,
accounting or other fees or expenses, arising out of the transactions
contemplated hereby;
(ii) any taxes arising out of the conduct of the Business
prior to the Closing Date and any transfer and sales taxes arising in connection
with the transfer of the Acquired Assets to the Company;
(iii) any liability relating to the action entitled DELGADO V.
PC411, INC., ET AL.;
(iv) all wages, consulting fees or other employee benefits
(other than vacation pay) payable to employees, officers, consultants or
directors for the period prior to the Closing Date;
(v) any indebtedness of PC411 for borrowed money, including
without limitation, any indebtedness arising under any note, debenture, bond,
equipment trust agreement, letter of credit agreement, loan agreement, lease or
other contract or commitment for the borrowing or lending of money relating to
the Business or PC411 or arrangement for a line of credit, or any guarantees, in
any manner, whether directly or indirectly, of any indebtedness, dividend or
other obligation of any other person or entity;
(vi) any liability or similar claim for injury to person or
property, regardless of when made or asserted, which is imposed or asserted to
be imposed by operation of law, including
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without limitation any claims seeking recovery for consequential damage, loss of
revenue or income;
(vii) any liability or obligation under or in connection with
any of the Excluded Assets;
(viii) any liabilities or obligations arising out of any
breach by PC411 of any provision of any agreement, contract, commitment or
lease, including but not limited to liabilities or obligations arising out of
PC411's failure to perform any agreement, contract, commitment or lease in
accordance with its terms prior to the Closing Date except to the extent such
liability or obligation is an Assumed Liability;
(ix) all liabilities and obligations arising under the Lease
other than all liabilities and obligations for rent and additional rent under
the Lease allocable to the period beginning on the date hereof and ending on
November 30, 1998; and
(x) any obligation or liability which is not expressly assumed
by the Company pursuant to Section 2(c).
(e) PC411'S PAYMENT AND PERFORMANCE OF THE EXCLUDED LIABILITIES. PC411
agrees to pay and perform and discharge the Excluded Liabilities within 45 days
of the due date of such liabilities except for those being contested in good
faith. This provision shall survive closing of the transactions contemplated
hereby.
(f) NAME CHANGE. Within 30 days of the Closing Date, PC411 shall file
with the Securities and Exchange Commission preliminary proxy materials
including a proposal to amend its Certificate of Incorporation to change its
name.
(g) FURTHER ASSURANCES. PC411 shall from time to time after the
Closing, at the Company's reasonable request, execute, acknowledge and deliver
to the Company such other instruments of conveyance and transfer and take such
other actions to execute and deliver such other documents, certifications and
further assurances as the Company may reasonably require in order to vest more
effectively in the Company, or to put the Company more fully in possession of,
any of the Acquired Assets, or to better enable the Company to complete, perform
or discharge any of the Assumed Liabilities. Each party hereto will cooperate
with the other party hereto and take other actions that may be reasonably
requested from time to time by the other party as reasonably necessary to carry
out, evidence and confirm the intended purposes of this Agreement.
3. TAX MATTERS. Upon consummation of the transactions described herein, the
Investors will control the Company within the meaning of section 351 of the
Internal Revenue Code of 1986, as amended (the "Code"). It is the intent of the
parties hereto that the transactions described herein constitute and qualify as
a tax-free transaction pursuant to section 351 of the Code (a "Section 351
Transaction"). Each of the Company, Acxiom and PC411 covenant and agree that
they will report
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the transactions described herein for federal, state and local income tax
purposes as a Section 351 Transaction and will timely and properly file all
returns, forms, statements and agreements as may be required by the Internal
Revenue Service and any appropriate state agencies on such basis and will
cooperate with and provide information to the other parties in a timely manner
so that the parties can satisfy their tax reporting obligations. PC411 shall pay
all state and local sales and other transfer taxes, if any, due in connection
with the transfer by PC411 of the Acquired Assets to the Company and the
assumption by the Company of the Assumed Liabilities, whether imposed by law on
PC411 or the Company, and PC411 shall indemnify and hold harmless the Company
with respect to the payment of all such taxes and any other amounts due as a
result of the failure by PC411 to file any reports which it is required to file
in connection therewith. The provisions of this Section 3 shall survive the
closing of the transactions described herein.
4. RECEIVABLE PAYMENTS. The Company and PC411 each hereby agree that if either
one of them shall have received a payment where all or a portion of such payment
represents a receivable due to the other party then, and in such event, the
party receiving such payment shall immediately forward to the other party that
portion of such payment which represents the receivable of such other party.
5. ENDORSEMENT OF CHECKS. PC411 hereby agrees that any check received by the
Company on or after the Closing Date as payment on account of any trade account
receivable constituting a part of the Acquired Assets, which check is payable to
PC411, may be endorsed by the Company for its own account, with all such
payments being subject to the provisions of Section 4 hereof.
6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby represents
and warrants to each Investor as follows:
(a) ORGANIZATION, GOOD STANDING, AND QUALIFICATION. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware, has all requisite corporate power and authority to own
its property and carry on its business as presently conducted and as presently
proposed to be conducted and has all requisite corporate power and authority to
execute and deliver and perform all of its obligations under this Agreement and
the Transaction Documents (as defined below) to which it is a party. A true,
correct and complete copy of the Certificate of Incorporation (the
"Certificate") and the Bylaws of the Company, each in effect as of the date
hereof, have been delivered to each Investor or their respective counsel. Since
it was formed on October 14, 1998, the Company has not engaged in any business
other than in connection with its organization and the transactions contemplated
by this Agreement and the Transaction Documents.
(b) AUTHORIZATION. The execution, delivery and performance by the
Company of its obligations under this Agreement and the Transaction Documents to
which it is a party has been duly authorized by all necessary action on the part
of the Company and will not, either prior to or as a result of the consummation
of the transactions contemplated by this Agreement or any of the Transaction
Documents to which it is a party: (a) violate any law, any order of any court or
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other agency of government, any provision of the Certificate or Bylaws of the
Company, or any contract, indenture, agreement or other instrument to which the
Company is a party, or by which the Company or any of its assets or properties
are bound, or (b) be in conflict with, result in a breach of, or constitute
(after the giving of notice of lapse of time or both) a default under, or result
in the creation or imposition of any lien of any nature whatsoever upon any of
the property or assets of any Company pursuant to any such contract, indenture,
agreement or other instrument except for the liens of the Investors and Dean
Eaker pursuant to the Loan Documents (as hereinafter defined). The Company is
not required to obtain any government approval, consent or authorization from,
or to file any declaration or statement with, any governmental instrumentality
or agency in connection with or as a condition to the execution, delivery or
performance of this Agreement or any of the Transaction Documents other than the
filing of such forms, agreements, documents and instruments as may be required
by applicable federal and state securities laws. A copy of the resolutions
adopted by the members of the Board of Directors of the Company authorizing the
transactions contemplated by this Agreement and the Transaction Documents is
attached hereto as Exhibit A.
(c) NON-CONTRAVENTION. The Company is not in violation or breach of or
in default with respect to, complying with any material provision of any
contract, agreement, instrument, lease, license, arrangement or understanding to
which the Company is a party, and each such contract, agreement, instrument,
lease, license, arrangement and understanding is in full force and effect and is
the legal, valid and binding obligation of the Company enforceable as to the
Company in accordance with its terms (subject to applicable bankruptcy,
insolvency and other laws affecting the enforceability of creditors' rights
generally and to general equitable principles).
(d) CAPITALIZATION. The Company has authorized the issuance of up to
thirty thousand (30,000) shares of capital stock consisting of twenty thousand
(20,000) shares of common stock, par value $0.01 per share (the "Common Stock"),
of which 440 shares are issued and outstanding, and ten thousand (10,000) shares
of the Preferred Stock having the rights, preferences, privileges and
restrictions more specifically set forth in the Certificate. Prior to the
consummation of the transactions described herein, no shares of Preferred Stock
are issued and outstanding. Except as set forth on Schedule 6(d), the Company
has not granted any options or warrants to acquire any shares of its capital
stock and it has not issued any securities convertible into or exchangeable for
shares of its capital stock or options or warrants to acquire shares of its
capital stock.
(e) NO SUBSIDIARIES. The Company does not own any shares of capital
stock or any option or warrants or any other securities which are convertible or
exchangeable into capital stock or options or warrants of any other corporation
and does not have any ownership interest or any other interest which may be
convertible into an ownership interest in any other entity.
(f) DUE AUTHORIZATION OF SHARES. The shares of Preferred Stock to be
issued hereunder and, when issued, the shares of Common Stock into which they
are convertible, have been, or will be upon issuance, duly authorized and, when
issued and paid for as herein provided, will be fully paid and nonassessable,
free and clear of any restrictions on transfer other than any restriction
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under the Securities Act of 1933, as amended (the "Securities Act"), state
securities laws and the Shareholders Agreement signed by and among the parties
hereto and the other stockholders of the Company of even date herewith (the
"Shareholders Agreement").
(g) CONVERTIBLE SECURITIES, OPTIONS, WARRANTS, RESERVED SHARES. Except
for: (i) the conversion privileges of the Preferred Stock; (ii) the Common Stock
reserved for issuance upon conversion of the convertible debt to be issued
pursuant to the Loan and Security Agreement, dated the date hereof, between the
Company and Acxiom; (iii) the 3,090 shares of Common Stock reserved for issuance
under the Company's 1998 Stock Option Plan (the "Plan") of which 2,585 shares
may be issued upon the vesting of options being granted to certain stockholders
of the Company; and (iv) options to purchase an aggregate of 220 shares of
Common Stock pursuant to the Employment Agreements attached hereto as Exhibits
D-1 through D-5, there is no outstanding option, warrant, right or agreement for
the purchase or acquisition from the Company of any shares of its capital stock
or any securities convertible into any shares of the Company's capital stock.
(h) LITIGATION. Except as set forth on Schedule 6(h), there is no
material claim, action, suit, litigation, arbitration, audit, investigation or
other proceeding pending or, to the knowledge of the directors and/or officers
or employees of the Company, threatened against the Company.
(i) GOVERNMENTAL LICENSES AND PERMITS. Schedule 6(i) sets forth a list
of all material governmental licenses and permits maintained by the Company in
connection with the conduct of its business (the "Licenses and Permits"). All
such Licenses and Permits are in full force and effect, and no proceeding is
pending or threatened with respect to the revocation or limitation of such
Licenses and Permits.
(j) FULL DISCLOSURE. No representation or warranty by the Company in
this Agreement contains any untrue statement of a material fact or omits to
state any material fact necessary to make any statement herein not materially
misleading as of the date hereof.
(k) FINDER. There is no firm, corporation, agency or other entity or
person that is entitled to a finder's fee or any type of brokerage commission in
relation to or in connection with the transactions contemplated by this
Agreement as a result of any agreement or understanding with Company or any of
its directors, officers or employees.
(l) EMPLOYEE BENEFIT PLANS.
(i) Schedule 6(l)(i) sets forth a list of each pension,
profit-sharing, deferred compensation, severance pay, stock option, or other
form of retirement or compensation plan, and each health care, vacation,
disability and sick pay plan maintained by the Company for the benefit of its
employees or directors (collectively, the "Benefit Plans"). The Company has made
available to each Investor true and complete copies of each of the Benefit Plan
and all amendments thereto,
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and all trust agreements, insurance contracts, and other material documents in
effect with respect to the Benefit Plans.
(ii) Each of the Benefit Plans has been operated in all
material respects in accordance with its terms and in accordance with applicable
laws and governmental regulations relating thereto, including, but not limited
to, where applicable, the Employee Retirement Income Security Act of 1974
("ERISA") and the Internal Revenue Code of 1986, as amended.
(iii) Neither the Company, nor any of the Plans or any trusts
created thereunder, nor any trustee or administrator thereof, has engaged in a
"prohibited transaction" under applicable provisions of ERISA or the Code which
would cause the Company or the Benefit Plans (or related trust) to become
subject to any material penalty under such applicable ERISA or Code provisions.
(m) INSURANCE. Schedule 6(m)-I contains a list of all general
liability, product liability, fire and casualty, motor vehicle and other
commercial insurance maintained by the Company. Except as set forth on Schedule
6(m)-II, (i) all such insurance policies are in full force and effect and there
are no past due premiums that remain unpaid with respect thereto; (ii) the
Company is in compliance in all material respects with the terms and provisions
thereof; (iii) copies of such insurance policies have been made available by the
Company to each Investor or their respective counsel; and (iv) the Company has
not received a notice of cancellation or nonrenewal with respect to any such
insurance policies maintained by the Company.
(n) POWERS OF ATTORNEY. The Company does not presently have outstanding
any powers of attorney authorizing any third party to act by or on behalf of the
Company.
(o) GUARANTIES. The Company has not guaranteed or otherwise become
obligated with respect to the indebtedness or obligations of any third party
except as set forth on Schedule 6(o) and except for the assumption of the
Assumed Liabilities.
(p) OFFICERS AND DIRECTORS; BANK ACCOUNTS. Schedule 6(p) sets forth a
list of (i) the names and addresses of all directors of the Company immediately
prior to the Closing Date; (ii) the name and addresses of all of the officers of
the Company and their titles; (iii) all safes, vaults and safety deposit boxes
maintained by or on behalf of the Company, and the names of all persons
authorized to have access thereto; and (iv) all bank and brokerage accounts of
the Company and the names of all persons who are authorized signatories with
respect to such accounts.
(q) SECURITIES LAW EXEMPTION. Assuming the accuracy of each Investor's
representations and warranties set forth herein, the issuance of the shares of
Preferred Stock pursuant to this Agreement and the issuance of the shares of the
Company's Common Stock to the other stockholders of the Company, has been made
in compliance with the Securities Act and all applicable state securities laws
and the respective rules and regulations thereunder.
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(r) COMPLIANCE WITH LAWS. The Company is in compliance in all material
respects with laws and regulations applicable to its trade or business as
presently conducted or as proposed to be conducted except that the Company has
not qualified to do business as a foreign corporation in any jurisdiction.
7. REPRESENTATIONS AND WARRANTIES OF THE INVESTORS. Each Investor, for itself
and not with respect to the other Investor, hereby represents and warrants to
the Company as follows:
(a) ORGANIZATION, GOOD STANDING AND QUALIFICATION. The Investor is a
corporation duly organized, validly existing and in good standing under the laws
of the state of its incorporation, and it has all requisite corporate power and
authority to execute, deliver and perform its obligations under this Agreement
and the Transaction Documents to which it is a party.
(b) AUTHORIZATION. The execution, delivery and performance of this
Agreement and the Transaction Documents to which it is a party has been duly
authorized by all necessary corporate action.
(c) NO CONFLICTS. Neither the execution, delivery or performance of its
obligations under this Agreement or the Transaction Documents to which it is a
party will result in a breach or default under (or with notice or lapse of time
or both would constitute a breach or default under) its Certificate of
Incorporation, Bylaws or any contract, instrument or other agreement to which it
is a party or is otherwise bound.
(d) BINDING EFFECT. This Agreement has been duly executed and delivered
and constitutes the legal, valid and binding obligation of the Investor
enforceable against the Investor in accordance with its terms subject to
applicable bankruptcy, insolvency and other similar laws affecting the
enforceability of creditors' rights generally and the discretion of the courts
with respect to equitable remedies.
(e) INVESTMENT INTENT. The Investor is acquiring the shares of
Preferred Stock to be issued pursuant hereto for investment for its own account
and not with a view to, or for resale in connection with, any distribution
thereof. The Investor understands that the shares of Preferred Stock to be
issued pursuant hereto and the shares of Common Stock issuable upon conversion
of the Preferred Stock have not been registered for sale under any federal or
state securities laws and that such shares are being offered and sold to the
Investor pursuant to the exemption from registration provided for under Section
4(2) of the Securities Act and that the representations and warranties set forth
in this Section 7(e) are given with the intention that the Company rely on them
for purposes of claiming such exemption; and that the Investor understands that
the Investor must bear the economic risk of the Investor's investment in such
shares for an indefinite period of time as such shares cannot be sold unless
subsequently registered under such laws or unless an exemption from such
registration is available and that the Investor has not been granted any
registration rights. The Investor agrees that the shares of Preferred Stock to
be issued pursuant
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hereto and the shares of Common Stock issuable upon conversion of the Preferred
Stock will not be sold or otherwise transferred for value unless (A) a
registration statement with respect thereto has become effective under the
Securities Act, or (B) there is presented to the Company an opinion of counsel
satisfactory to the Company that such transfer is exempt from the registration
requirements under the Securities Act, and the Investor consents that any
transfer agent may be instructed not to transfer any such shares unless it
receives satisfactory evidence of compliance with the foregoing provisions, and
that there may be endorsed upon any certificate or instrument representing such
shares an appropriate legend calling attention to the foregoing restrictions on
transferability of such shares.
(f) ACCESS TO DATA. The Investor has been informed that the Company has
not engaged in any business other than in connection with its organization and
the transactions contemplated by this Agreement and by the Transaction
Documents. The Investor is aware of the Company's business affairs and financial
condition and has acquired sufficient information about the Company to reach an
informed and knowledgeable decision to acquire the shares of Preferred Stock
hereunder and the shares of Common Stock issuable upon conversion of the
Preferred Stock. The Investor has discussed the Company and its plans,
operations and financial condition with the Company's officers, has received all
such information as it deems necessary and appropriate to enable it to evaluate
the financial risk inherent in making an investment in the shares of Preferred
Stock and the shares of Common Stock issuable upon conversion of the Preferred
Stock and has received satisfactory and complete information concerning the
business and financial condition of the Company in response to all inquiries in
respect thereof. The Investor acknowledges that no representations are being
made by the Company except those expressly set forth herein and that the
Investor has received copies of and, with the advice and assistance of its legal
counsel, participated in the negotiation of this Agreement and the other
agreements contemplated by this Agreement.
(g) FINDER. There is no firm, corporation, agency or other entity or
person that is entitled to a finder's fee or any type of brokerage commission in
relation to or in connection with the transactions contemplated by this
Agreement as a result of any agreement or understanding with Investor or any of
its directors, officers, employees or shareholders.
(h) FULL DISCLOSURE. No representation or warranty by such Investor in
this Agreement contains any untrue statement of a material fact or omits to
state any material fact necessary to make any statement herein not materially
misleading.
7A. REPRESENTATIONS AND WARRANTIES OF PC411. PC411 hereby represents and
warrants to the Company as follows:
(a) ASSETS AND PROPERTIES. PC411 has valid title to all personal
property included in the Acquired Assets, free and clear of all liens, pledges,
mortgages, security interests, conditional sales contracts and other
encumbrances of any kind or nature, except for the Assumed Liabilities.
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(b) CONDITION OF ASSETS AND PROPERTIES. All equipment and other
tangible personal property included in the Acquired Assets (the "Tangible
Personal Property") are being sold and transferred to Buyer "AS IS"; provided,
however, that notwithstanding the foregoing, PC411 will transfer to the Company
any and all manufacturers' warranties applicable to the Tangible Personal
Property to the extent permitted by the terms of such warranty.
(c) LEGAL PROCEEDINGS, ETC. Except for the matter referred to in
Section 2(d)(iii), there are no claims, actions, suits, proceedings,
arbitrations or investigations, either administrative or judicial, pending or,
to the best of PC411's actual knowledge, threatened by, or against, PC411 or any
of the Purchased Assets, or specifically relating to the transactions
contemplated by this Agreement, at law or in equity or otherwise, before or by
any court or governmental agency or body, domestic or foreign, or before an
arbitrator of any kind. PC411 has not paid or reserved an amount in excess of
$2,500 with respect to any product liability claim for personal injury made or
threatened against PC411.
8. COVENANTS OF THE COMPANY.
(a) Within 20 business days following the Closing Date, the Company
shall take such action, including the filing of all necessary applications and
the payment of all required fees, so that it shall be duly qualified as a
foreign corporation and is in good standing in those states in which it is
conducting business or its assets or employees are located, except where the
failure to be so qualified would not have a material adverse effect on the
Company.
(b) As soon as reasonably practicable after the Closing Date, the
Company shall obtain (i) key man life insurance, with proceeds made payable to
the Company, on Dean Eaker, in an amount not less than five hundred thousand
dollars ($500,000), and on each of Ed Fleiss, Bruce Biegel, Joshua Blumenthal
and Keith Goodman, in the amount of two hundred fifty thousand dollars
($250,000), and (ii) directors and officers liability insurance and general
liability insurance in such amounts as shall be approved by the Company's Board
of Directors.
(c) The Company shall vacate the Premises on or before November 30,
1998. The condition of the Premises at the time they are vacated by the Company
shall be the same as on the date hereof, normal wear and tear excepted.
9. PRESS RELEASES. The parties hereto agree that no public release or
announcement concerning the transactions contemplated hereby shall be issued by
any party without the prior written consent of each Investor and the Company,
except for releases and announcements required to be made by applicable law, in
which case the party required to make the release or announcement shall allow
the other parties reasonable time to comment on such release or announcement in
advance of its issuance.
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10. CLOSING.
(a) DELIVERIES BY THE COMPANY. Simultaneous with the execution and
delivery of this Agreement, the Company is delivering the following to each
Investor:
(i) Stock certificates issued to the respective Investor,
evidencing the shares of Preferred Stock to be issued by the Company hereunder;
(ii) Certificates of good standing with respect to the Company
from the Secretary of State of Delaware dated within ten (10) days of the
Closing Date; and
(iii) Copies of resolutions evidencing appointment of the
following persons as the officers and directors of the Company: Dean Eaker,
President and Director; J. Bryant Kirkland III, Director; Mark Theilken,
Director; Art Kellam, Director; and Adam Gadberry, Director.
(b) DELIVERIES BY THE INVESTORS. Simultaneous with the execution
and delivery of this Agreement
(i) Acxiom is delivering the Acxiom Purchase Price to the
Company in cash by wire transfer or otherwise as provided herein; and
(ii) Acxiom and PC411 shall execute and deliver an agreement,
in the form attached hereto as Exhibit B, terminating the Acxiom License and
releasing PC411 from all of its liabilities and obligations thereunder.
(c) OTHER DELIVERIES. Simultaneous with the execution and delivery of
this Agreement, the Company and the Investors, as the case may be, are executing
and delivering the following documents (the "Transaction Documents"):
(i) The Shareholders Agreement in the form attached hereto as
Exhibit C;
(ii) The Employment Agreements in the forms attached hereto as
Exhibit D-1 through D-5;
(iii) The Voting Agreement in the form attached hereto as
Exhibit E;
(iv) The Bridge Loan and Security Agreement in the form
attached hereto as Exhibit F;
(v) The Loan and Security Agreement in the form attached
hereto as Exhibit G;
(vi) The Multiple Advance Notes in the forms attached hereto
as Exhibit H-1 through H-4;
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(vii) The Convertible Multiple Advance Note in the form
attached hereto as Exhibit I;
(viii) The Termination, Indemnification and Release Agreements
in the forms attached hereto as Exhibits J-1 and J-2;
(ix) The Bill of Sale and an Assignment of Rights and
Assumption of Liabilities and Obligations in the forms attached hereto as
Exhibits K and L, respectively;
(x) The Assignment in the form attached hereto as Exhibit M;
(xi) The Acxiom Services Agreement in the form attached hereto
as Exhibit N; and
(xii) Such other agreements, documents and instruments
required by this Agreement or any of the agreements referred to in this Section
10(c) or as may reasonably be required by an Investor or by the Company.
(d) LOAN DOCUMENTS. The documents referred to in Section 10(c)(iv)
through (vii) are referred to herein as the "Loan Documents".
11. INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY.
(i) Subject to the limitations set forth herein, the Company
hereby covenants and agrees to indemnify and hold harmless each Investor from
and against any loss, liability, claim, cost, damage or expense (including
reasonable legal fees and expenses) (collectively, a "Loss") incurred by or
asserted against such Investor as a result of any breach by the Company of any
representation, warranty, covenant or other agreement of the Company contained
herein or in any of the Transaction Documents to which it is a party.
(ii) The Company hereby covenants and agrees to indemnify and
hold harmless PC411 from any Loss arising in connection with the Assumed
Liabilities.
(b) INDEMNIFICATION BY THE INVESTORS.
(i) Each Investor hereby covenants and agrees to indemnify and
hold harmless the Company and the other Investor from and against any Loss
resulting from any breach by such Investor of any representation, warranty,
covenant or other agreement of such Investor contained herein or in any of the
Transaction Documents.
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(ii) PC411 hereby covenants and agrees to indemnify and hold
harmless the Company from any Loss arising in connection with the Excluded
Liabilities.
(c) NOTICE AND DEFENSE. The obligation of the Company and the Investors
hereunder with respect to their respective indemnities hereunder resulting from
any claim or other assertion of liability by third parties (hereinafter
collectively, "Third Party Claim(s)"), shall be subject to the following terms
and conditions:
(i) The party seeking indemnification hereunder (the
"Indemnified Party") shall give written notice of any such Third Party Claim to
the party from whom indemnification is sought hereunder (the "Indemnifying
Party") within ten (10) business days after the Indemnified Party receives
notice thereof; provided, however, the failure to give notice timely shall not
affect the Indemnifying Party's obligation hereunder except to the extent that
such failure prejudices the Indemnifying Party or its ability to defend or
reduce the Loss relating to such Third Party Claim.
(ii) The Indemnifying Party shall have the right to undertake,
with counsel or other representatives of its own choosing and reasonably
acceptable to the Indemnified Party, the defense or settlement of any such Third
Party Claim.
(iii) In the event that the Indemnifying Party shall have the
right to undertake the defense of any Third Party Claim, but shall fail to
notify the Indemnified Party within ten (10) days of receipt of the notice that
it has elected to undertake such defense or settlement, or if at any time the
Indemnifying Party shall otherwise fail to diligently defend or pursue
settlement of such claim, then the Indemnified Party shall have the right to
undertake the defense, compromise or settlement of such claim, with counsel
reasonably acceptable to the Indemnifying Party.
(iv) Neither party shall settle any Third Party Claim without
the prior written consent of the other party, which consent shall not be
unreasonably withheld or delayed. In the event the Indemnifying Party submits to
the Indemnified Party a bona fide settlement offer from the third party claimant
of any Third Party Claim (which settlement offer shall include as an
unconditional term thereof the giving by the claimant or the plaintiff to the
Indemnified Party of a release from all liability in respect of such claim) and
the Indemnified Party refuses to consent to such settlement, then thereafter the
Indemnifying Party's liability to the Indemnified Party for indemnification
hereunder with respect to such Third Party Claim shall not exceed the settlement
amount included in said bona fide settlement offer, and the Indemnified Party
shall either assume the defense of such Third Party Claim or pay the
Indemnifying Party's attorneys fees and other out of pocket costs incurred
thereafter in continuing the defense of such claim.
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(v) Regardless of which party is conducting the defense of any
such Third Party Claim, the other party, with counsel or other representatives
of its own choosing and at its sole cost and expense, shall have the right to
consult with the party conducting the defense of such claim and its counsel or
other representatives concerning such claim and the Indemnifying Party and the
Indemnified Party and their respective counsel or other representatives shall
cooperate with respect to such claim, and the party conducting the defense of
any such claim and its counsel shall in any case keep the other party and its
counsel (if any) fully informed as to the status of any claim and any matters
relating thereto. Each party shall provide to the other party such records,
books, documents and other materials as shall reasonably be necessary for such
party to conduct or evaluate the defense of any Third Party Claim and will
generally cooperate with respect to any matters relating thereto.
12. SURVIVAL. The representations and warranties contained in this Agreement
shall survive the Closing for a period of two (2) years from the Closing Date.
13. EXPENSES. Except as otherwise specifically provided herein, each party
hereto shall pay all of its or his respective expenses relating to this
transaction, including fees and disbursements of their respective counsel,
accountants, brokers, investment bankers and financial advisors, whether or not
the transactions contemplated hereunder are consummated; provided, however, the
Company shall reimburse Dean Eaker a sum not to exceed $70,000 for all legal
fees incurred on his behalf and/or on behalf of the Company prior to the Closing
Date provided the transaction closes; provided further, any legal fees or
expenses in excess of $70,000 incurred by the Company or Dean Eaker individually
prior to the Closing Date with respect to this Agreement or formation of the
Company, including, but not limited to, the negotiation and preparation of
Transaction Documents shall not be paid by the Company but shall be an
individual expense of Dean Eaker's, unless otherwise approved by Acxiom in
writing prior to the Closing Date. The provisions of this Section 13 shall
survive any termination of this Agreement.
14. MISCELLANEOUS.
(a) BINDING EFFECT AND BENEFIT; ASSIGNMENT. This Agreement shall be
binding upon, and shall inure to the benefit of, the parties hereto and their
respective legal representatives, heirs, successors and permitted assigns. This
Agreement shall not be assignable or otherwise transferrable by any party hereto
without the prior written consent of the non-assigning parties.
(b) FURTHER ASSURANCES. The parties agree that from time to time
hereafter, upon request, each of them will execute, acknowledge and deliver such
other instruments and documents and take such further action as may be
reasonably necessary to carry out the intent of this Agreement.
(c) MODIFICATION. No term or provision contained herein may be
modified, amended or waived except by written agreement or consent signed by the
party to be bound thereby.
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(d) HEADINGS AND CAPTIONS. Subject headings and captions are included
for convenience purposes only and shall not affect the interpretation of this
Agreement.
(e) NOTICE. All notices, requests, demands and other communications
permitted or required hereunder shall be in writing, and either (i) delivered in
person, (ii) sent by express mail or other overnight delivery service providing
receipt of delivery, (iii) mailed by certified mail, postage prepaid, return
receipt requested, or (iv) sent by telecopy or other facsimile transmission as
follows:
If to the Company, addressed or delivered in person to:
Digital Asset Management, Inc.
67 Stonehedge Drive South
Greenwich, CT 06831
Attn: Dean Eaker, President
Facsimile: 203-531-4249
with a copy to:
Kronish, Lieb, Weiner & Hellman, LLP
1114 Avenue of the Americas
New York, NY 10036-7798
Attn: Chet F. Lipton, Esq.
Facsimile: 212-479-6275
If to the Investor, addressed or delivered in person to:
Acxiom Corporation
301 Industrial Blvd.
Conway, AR 72033-2000
Attn: Mark Theilken
Facsimile: 501-336-3935
with a copy to:
Friday, Eldredge & Clark
400 W. Capitol, Suite 2000
Little Rock, AR 72201
Attn: Carla G. Spainhour, Esq.
Facsimile: 501-376-2147
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and
PC411, Inc.
100 SE Second Street, 32nd Floor
Miami, FL 33131
Attn: J. Bryant Kirkland, III
Vice President and Chief Financial Officer
Facsimile: 305-579-8022
with a copy to:
Morse, Zelnick, Rose & Lander, LLP
450 Park Avenue
New York, NY 10022
Attn: Joel J. Goldschmidt, Esq.
Facsimile: 212-838-9190
or to such other address as either party may designate by notice.
Any such notice or communication, if given or made by prepaid,
certified mail or by recorded express delivery, shall be deemed to have been
made when actually received, but not later than three (3) business days after
the same was posted or given to such express delivery service and if made
properly by telecopy or other facsimile transmission, such notice or
communication shall be deemed to have been made at the time of dispatch.
(f) SEVERABILITY. If any portion of this Agreement is held invalid,
illegal or unenforceable, such determination shall not impair the enforceability
of the remaining terms and provisions herein.
(g) WAIVER. No waiver of a breach or violation of any provision of this
Agreement shall operate or be construed as a waiver of any subsequent breach or
limit or restrict any right or remedy otherwise available.
(h) GENDER AND NUMBER. Throughout this Agreement, the masculine shall
include the feminine and neuter and the singular shall include the plural and
vice versa as the context requires.
(i) ENTIRE AGREEMENT. This document (together with the exhibits,
schedules and attachments hereto) constitutes the entire Agreement of the
parties and supersedes any and all other prior agreements, oral or written, with
respect to the subject matter contained herein. There are no representations,
warranties, covenants or agreements between the parties hereto with respect to
this transaction except those expressly set forth herein.
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(j) GOVERNING LAW. This Agreement shall be subject to and governed by
the laws of the State of Connecticut.
(k) INCORPORATION BY REFERENCE. All schedules, exhibits and documents
referred to in this Agreement shall be deemed incorporated herein by any
reference thereto as if fully set out.
(l) COUNTERPARTS. This Agreement may be executed in one or more
counterparts (all counterparts together reflecting the signatures of all
parties), each of which shall be deemed to be an original, and all of which
together shall constitute one and the same instrument.
(m) AUTHORITY. Each individual signing this Agreement in a
representative capacity acknowledges and represents that he/she is duly
authorized to execute this Agreement in such capacity in the name of, and on
behalf of, the designated corporation, partnership, trust, or other entity.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this agreement
effective as of the day and year aforesaid.
ACXIOM CORPORATION
By: /s/ Mark Theilken
--------------------------
Mark Theilken, Group Leader
PC411, INC.
By: /s/ J. Bryant Kirkland III
--------------------------
J. Bryant Kirkland III, Vice President and
Chief Financial Officer
DIGITAL ASSET MANAGEMENT, INC.
By: /s/ Dean Eaker
--------------------------
Dean Eaker, President
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