Exhibit (2)
AGREEMENT AND PLAN OF MERGER
AMONG
MONEYZONE.COM
SUTTON MERGER CORP.
AND
SUTTON ONLINE, INC.
DATED AS OF APRIL 9, 2001
TABLE OF CONTENTS
Page
----
ARTICLE I................................................................. 1
THE MERGER................................................................ 1
SECTION 1.1. The Merger......................................... 1
SECTION 1.2. Closing............................................ 1
SECTION 1.3. Effective Time..................................... 1
SECTION 1.4. Effects of the Merger.............................. 2
SECTION 1.5. Certificate of Incorporation and By-laws of the
Surviving Corporation.............................. 2
SECTION 1.6. Boards, Committees and Officers.................... 2
SECTION 1.7. Name of the Surviving Corporation.................. 2
SECTION 1.8. Reservation of Right to Revise Transaction......... 2
ARTICLE II................................................................ 3
EFFECT OF THE MERGER ON THE CAPITAL STOCK................................. 3
SECTION 2.1. Effect on Capital Stock............................ 3
(a) Cancellation of Stock.................................. 3
(b) Conversion of Sutton Online Common Stock............... 3
(c) Sutton Online Convertible Promissory Notes and
Warrants............................................... 3
SECTION 2.2. Exchange of Certificates........................... 3
(a) Exchange Agent......................................... 3
(b) Exchange Procedures.................................... 4
(c) Distributions with Respect to Unexchanged Shares....... 4
(d) No Further Ownership Rights in Sutton Online Common
Stock.................................................. 5
(e) No Fractional Shares................................... 5
(f) Termination of Exchange Fund........................... 6
(g) No Liability........................................... 6
(h) Investment of Exchange Fund............................ 6
(i) Lost Certificates...................................... 6
SECTION 2.3. Certain Adjustments................................ 6
ARTICLE III............................................................... 7
REPRESENTATIONS AND WARRANTIES............................................ 7
SECTION 3.1. Representations and Warranties of Sutton Online.... 7
(a) Organization, Standing and Corporate Power............. 7
(b) Subsidiaries........................................... 7
i
(c) Authority; Noncontravention............................ 7
(d) Capitalization of Sutton Online........................ 8
(e) Undisclosed Liabilities................................ 8
(f) Information Supplied................................... 9
(g) Taxes.................................................. 9
(h) Voting Requirements.................................... 9
(i) State Takeover Statutes................................ 9
(j) Intentionally Omitted.................................. 10
(k) Absence of Certain Changes or Events................... 10
(l) Compliance with Applicable Laws; Litigation............ 10
(m) Intellectual Property.................................. 11
(n) Certain Contracts...................................... 11
(o) Intentionally Omitted.................................. 11
(p) Affiliate Transactions................................. 12
(q) Employee Benefit Plans................................. 12
SECTION 3.2. Representations and Warranties of MoneyZone........ 12
(a) Organization, Standing and Corporate Power............. 12
(b) Subsidiaries........................................... 12
(c) Authority; Noncontravention............................ 12
SECTION 3.3. Representations and Warranties of MergerSub........ 13
(a) Organization, Standing and Corporate Power............. 13
(b) Subsidiaries........................................... 14
(c) Capital Structure...................................... 14
(d) Authority; Noncontravention............................ 14
ARTICLE IV................................................................ 15
COVENANTS RELATING TO CONDUCT OF BUSINESS................................. 15
SECTION 4.1. Conduct of Business................................ 15
(a) Conduct of Business by Sutton Online................... 15
(b) Conduct of Business by MoneyZone and Subsidiaries...... 15
(c) Other Actions.......................................... 16
(d) Advice of Changes...................................... 16
ARTICLE V................................................................. 16
ADDITONAL AGREEMENTS...................................................... 16
SECTION 5.1. Best Efforts....................................... 16
SECTION 5.2. Indemnification, Exculpation and Insurance......... 17
SECTION 5.3. Indemnification.................................... 18
SECTION 5.4. Fees and Expenses.................................. 19
SECTION 5.5. Public Announcements............................... 19
SECTION 5.6. Affiliates......................................... 20
SECTION 5.7. Bulletin Board Listing............................. 20
SECTION 5.8. Stockholder Litigation............................. 20
SECTION 5.9. Tax Treatment...................................... 21
SECTION 5.10. Conveyance Taxes................................... 21
ii
ARTICLE VI................................................................ 21
CONDITIONS PRECEDENT...................................................... 21
SECTION 6.1. Conditions to Each Party's Obligation to Effect
the Merger......................................... 21
(a) Stockholder Approvals.................................. 21
(b) Governmental and Regulatory Approvals.................. 21
(c) No Injunctions or Restraints........................... 22
(d) Information Statement.................................. 22
(e) Corporate Governance................................... 22
SECTION 6.2. Conditions to Obligations of MoneyZone............. 22
(a) Representations and Warranties......................... 22
(b) Performance of Obligations of Sutton Online............ 22
(c) No Material Adverse Change............................. 22
SECTION 6.3. Conditions to Obligations of Sutton Online......... 23
(a) Representations and Warranties......................... 23
(b) Performance of Obligations of MoneyZone................ 23
(c) No Material Adverse Change............................. 23
SECTION 6.4. Frustration of Closing Conditions.................. 23
ARTICLE VII............................................................... 23
TERMINATION, AMENDMENT AND WAIVER......................................... 23
SECTION 7.1. Termination........................................ 23
SECTION 7.2. Effect of Termination.............................. 24
SECTION 7.3. Amendment.......................................... 24
SECTION 7.4. Extension; Waiver.................................. 24
SECTION 7.5. Procedure for Termination, Amendment, Extension
or Waiver.......................................... 25
ARTICLE VIII.............................................................. 25
GENERAL PROVISIONS........................................................ 25
SECTION 8.1. Survival of Representations and Warranties......... 25
SECTION 8.2. Notices............................................ 25
SECTION 8.3. Definitions........................................ 26
SECTION 8.4. Interpretation..................................... 26
SECTION 8.5. Counterparts....................................... 27
SECTION 8.6. Entire Agreement; No Third-Party Beneficiaries..... 27
SECTION 8.7. Governing Law...................................... 27
SECTION 8.8. Assignment......................................... 27
SECTION 8.9. Headings........................................... 27
SECTION 8.10. Severability....................................... 28
EXHIBITS
Exhibit A- Form of Corporate Resolutions
iii
AGREEMENT AND PLAN OF MERGER dated as of April 9, 2001, among
MONEYZONE.COM, a Nevada corporation ("MoneyZone"), SUTTON ONLINE, INC., a
Delaware corporation ("Sutton Online"), and SUTTON MERGER CORP., a Delaware
corporation ("MergerSub").
WHEREAS, the respective Boards of Directors of MoneyZone, MergerSub and
Sutton Online have each approved the merger of MergerSub with and into Sutton
Online (the "Merger"), upon the terms and subject to the conditions set forth in
this Agreement, whereby each issued and outstanding share of common stock, par
value $.025 per share, of Sutton Online ("Sutton Online Common Stock"), will be
converted into the right to receive the Merger Consideration (as defined in
Section 1.8); and
WHEREAS, the respective Boards of Directors of MoneyZone, MergerSub and
Sutton Online have each determined that the Merger and the other transactions
contemplated hereby are consistent with, and in furtherance of, their respective
business strategies and goals and are in the best interests of their respective
stockholders; and
WHEREAS, MoneyZone, MergerSub and Sutton Online desire to make certain
representations, warranties, covenants and agreements in connection with the
Merger and also to prescribe various conditions to the Merger.
NOW, THEREFORE, in consideration of the representations, warranties,
covenants and agreements contained in this Agreement, the parties agree as
follows:
ARTICLE I
THE MERGER
SECTION 1.1. THE MERGER. Upon the terms and subject to the conditions set
forth in this Agreement, and in accordance with the Delaware General Corporation
Law (the "DGCL"), MergerSub shall be merged with and into Sutton Online at the
Effective Time (as defined in Section 1.3). Following the Effective Time, Sutton
Online shall be the surviving corporation (the "Surviving Corporation") and
shall succeed to and assume all the rights and obligations of MergerSub in
accordance with the DGCL.
SECTION 1.2. CLOSING. The closing of the Merger (the "Closing") will take
place at 10:00 a.m. on a date to be specified by the parties (the "Closing
Date"), which shall be no later than the second business day after satisfaction
or waiver of the conditions set forth in Article VI, unless another time or date
is agreed to by the parties hereto. The Closing will be held at such location as
is agreed to by the parties hereto.
SECTION 1.3. EFFECTIVE TIME. Subject to the provisions of this Agreement, as
soon as practicable on the Closing Date, the parties shall cause the Merger to
be consummated by filing a certificate of merger or other appropriate documents
(in any such case, the "Certificate of Merger") executed in accordance with the
relevant provisions of the DGCL and shall make all other filings or recordings
required under the DGCL. The Merger shall become effective at such time as the
Certificate of Merger is duly filed with the Secretary of State of Delaware, or
at such subsequent date or time as MoneyZone and Sutton Online shall agree and
specify in the Certificate of Merger (the time the Merger becomes effective
being hereinafter referred to as the "Effective Time").
SECTION 1.4. EFFECTS OF THE MERGER. The Merger shall have the effects set
forth in Section 259 of the DGCL.
SECTION 1.5. CERTIFICATE OF INCORPORATION AND BY-LAWS OF THE SURVIVING
CORPORATION. The Certificate of Incorporation of Sutton Online, shall be the
Certificate of Incorporation of the Surviving Corporation (the "Surviving
Certificate of Incorporation"). The By-laws of Sutton Online, as in effect
immediately prior to the Effective Time, shall be the By-laws of the Surviving
Corporation (the "Surviving By-laws").
SECTION 1.6. BOARDS, COMMITTEES AND OFFICERS. Prior to the Effective Time,
MoneyZone shall adopt resolutions in the form attached hereto as part of Exhibit
A, establishing the Board of Directors of MoneyZone from and after the Effective
Time. From and after the Effective Time, the members of the Board of Directors,
the committees of the Board of Directors, the composition of such committees
(including chairmen thereof) and the officers of the Surviving Corporation shall
be as set forth on or designated in accordance with the Surviving Certificate of
Incorporation, the Surviving By-laws and Exhibit A hereto until the earlier of
the resignation or removal of any individual set forth on or designated in
accordance with the Surviving Certificate of Incorporation, the Surviving
By-laws and Exhibit A or until their respective successors are duly elected and
qualified, as the case may be, or until as otherwise provided in the Surviving
Certificate of Incorporation, the Surviving By-laws and Exhibit A.
SECTION 1.7. NAME OF THE SURVIVING CORPORATION. The name of the Surviving
Corporation shall be Sutton Online, Inc.
SECTION 1.8. RESERVATION OF RIGHT TO REVISE TRANSACTION. If each of Sutton
Online, MergerSub and MoneyZone agree, the parties hereto may change the method
of effecting the business combination between MergerSub and Sutton Online, and
each party shall cooperate in such efforts, including to provide for (a) a
merger of MergerSub with and into Sutton Online, or (b) a merger of Sutton
Online with and into MoneyZone; provided, however, that no such change shall
alter or change the amount or kind of consideration to be issued to holders of
Sutton Online Common Stock as provided for in this Agreement (the "Merger
Consideration").
2
ARTICLE II
EFFECT OF THE MERGER ON THE CAPITAL STOCK
OF THE CONSTITUENT CORPORATIONS;
EXCHANGE OF CERTIFICATES
SECTION 2.1. EFFECT ON CAPITAL STOCK. As of the Effective Time, by virtue of
the Merger and without any action on the part of the holder of any shares of
Sutton Online Common Stock:
(a) CANCELLATION OF STOCK. Each share of capital stock of MoneyZone
that is owned by Sutton Online, and each share of capital stock of Sutton Online
owned by MoneyZone, shall automatically be cancelled and retired and shall cease
to exist, and no consideration shall be delivered in exchange therefor.
(b) CONVERSION OF SUTTON ONLINE COMMON STOCK. Subject to Section
2.2(e), each issued and outstanding share of Sutton Online Common Stock (other
than shares to be cancelled in accordance with Section 2.1(a)) shall be
converted into the right to receive one (1) (the "Exchange Ratio") validly
issued, fully paid and nonassessable shares of common stock, $.15 value per
share ("MoneyZone Common Stock"), of MoneyZone. As of the Effective Time, all
such shares of Sutton Online Common Stock shall cease to have any rights with
respect thereto, except the right to receive the Merger Consideration and any
cash in lieu of fractional shares of MoneyZone Common Stock to be issued or paid
in consideration therefor upon surrender of such certificate in accordance with
Section 2.2, without interest.
(c) SUTTON ONLINE WARRANTS. At the Effective Time, by virtue of the
Merger and without any action on the part of the holder thereof, each
outstanding warrant to purchase shares of Sutton Online Common Stock (the
"Warrants"), shall remain outstanding, unchanged by reason of the Merger, except
that, in accordance with the adjustment provisions thereof, each Warrant shall
no longer be exercisable for Sutton Online Common Stock, but shall thereafter be
exercisable for that whole number of shares of MoneyZone Common Stock and cash
in lieu of fractional share interests as the holder thereof would have been
entitled to receive pursuant to the Merger had such holder exercised such
Warrant in full immediately prior to the Effective Time, at an exercise price
per share of MoneyZone Common Stock equal to $2.50. MoneyZone shall comply with
the terms and provisions of all such Warrants.
SECTION 2.2. EXCHANGE OF CERTIFICATES.
(a) EXCHANGE AGENT. As of the Effective Time, MoneyZone shall enter
into an agreement with American Stock Transfer and Trust Company or other
transfer agent designated by Sutton Online (the "Exchange Agent"), which shall
provide that MoneyZone shall deposit with the Exchange Agent as of the Effective
Time, for the benefit of the holders of shares of Sutton Online Common Stock,
3
for exchange in accordance with this Article II, through the Exchange Agent,
certificates representing the shares of MoneyZone Common Stock issuable pursuant
to Section 2.1 in exchange for outstanding shares of Sutton Online Common Stock.
(b) EXCHANGE PROCEDURES. As soon as reasonably practicable after the
Effective Time, but no more than twenty (20) days after the Effective Time, the
Exchange Agent shall mail to each holder of record of a certificate or
certificates which immediately prior to the Effective Time represented
outstanding shares of Sutton Online Common Stock (the "Certificates") whose
shares were converted into the right to receive the Merger Consideration
pursuant to Section 2.1, (i) a letter of transmittal (which shall specify that
delivery shall be effected, and risk of loss and title to the Certificates shall
pass, only upon delivery of the Certificates to the Exchange Agent and shall be
in such form and have such other provisions as MoneyZone and Sutton Online may
reasonably specify) and (ii) instructions for use in surrendering the
Certificates in exchange for the Merger Consideration. Upon surrender of a
Certificate for cancellation to the Exchange Agent, together with such letter of
transmittal, duly executed, and such other documents as may reasonably be
required by the Exchange Agent, the holder of such Certificate shall be entitled
to receive in exchange therefor a certificate representing that number of whole
shares of MoneyZone Common Stock which such holder has the right to receive
pursuant to the provisions of this Article II, and cash in lieu of any
fractional share of MoneyZone Common Stock in accordance with Section 2.2(e),
and the Certificate so surrendered shall forthwith be canceled (such cash and
MoneyZone Common Stock deposited with the Exchange Agent for the purpose of the
Merger, collectively, the "Exchange Fund"). In the event of a surrender of a
Certificate representing shares of Sutton Online Common Stock which are not
registered in the transfer records of Sutton Online under the name of the person
surrendering such Certificate, a certificate representing the proper number of
shares of MoneyZone Common Stock may be issued to a person other than the person
in whose name the Certificate so surrendered is registered if such Certificate
shall be properly endorsed or otherwise be in proper form for transfer and the
person requesting such issuance shall pay any transfer or other taxes required
by reason of the issuance of shares of MoneyZone Common Stock to a person other
than the registered holder of such Certificate or establish to the satisfaction
of MoneyZone that such tax has been paid or is not applicable. Until surrendered
as contemplated by this Section 2.2, each Certificate shall be deemed at any
time after the Effective Time to represent only the right to receive upon such
surrender the Merger Consideration which the holder thereof has the right to
receive in respect of such Certificate pursuant to the provisions of this
Article II, and cash in lieu of any fractional share of MoneyZone Common Stock
in accordance with Section 2.2(e). No interest shall be paid or will accrue on
any cash payable to holders of Certificates pursuant to the provisions of this
Article II.
(c) DISTRIBUTIONS WITH RESPECT TO UNEXCHANGED SHARES. No dividends or
other distributions with respect to MoneyZone Common Stock with a record date
after the Effective Time shall be paid to the holder of any unsurrendered
Certificate with respect to the shares of MoneyZone Common Stock represented
thereby, and, in the case of Certificates representing Sutton Online Common
4
Stock, no cash payment in lieu of fractional shares shall be paid to any such
holder pursuant to Section 2.2(e), and all such dividends, other distributions
and cash in lieu of fractional shares of MoneyZone Common Stock shall be paid by
MoneyZone to the Exchange Agent for payment to holders of Sutton Online Common
Stock, in each case until the surrender of such Certificate in accordance with
this Article II. Subject to the effect of applicable escheat or similar laws,
following surrender of any such Certificate there shall be paid to the holder of
the certificate representing whole shares of MoneyZone Common Stock issued in
exchange therefor, without interest, (i) at the time of such surrender, the
amount of dividends or other distributions with a record date after the
Effective Time theretofore paid with respect to such whole shares of MoneyZone
Common Stock and, in the case of Certificates representing Sutton Online Common
Stock, the amount of any cash payable in lieu of a fractional share of MoneyZone
Common Stock to which such holder is entitled pursuant to Section 2.2(e) and
(ii) at the appropriate payment date, the amount of dividends or other
distributions with a record date after the Effective Time and with a payment
date subsequent to such surrender payable with respect to such whole shares of
MoneyZone Common Stock.
(d) NO FURTHER OWNERSHIP RIGHTS IN SUTTON ONLINE COMMON STOCK. All
shares of MoneyZone Common Stock issued upon the surrender for exchange of
Certificates in accordance with the terms of this Article II (including any cash
paid pursuant to this Article II) shall be deemed to have been issued (and paid)
in full satisfaction of all rights pertaining to the shares of Sutton Online
Common Stock, theretofore represented by such Certificates, subject, however, to
MoneyZone obligation to pay any dividends or make any other distributions with a
record date prior to the Effective Time which may have been declared or made by
Sutton Online on such shares of Sutton Online Common Stock which remain unpaid
at the Effective Time, and there shall be no further registration of transfers
on the stock transfer books of the Surviving Corporation of the shares of Sutton
Online Common Stock which were outstanding immediately prior to the Effective
Time. If, after the Effective Time, Certificates are presented to the Surviving
Corporation or the Exchange Agent for any reason, they shall be cancelled and
exchanged as provided in this Article II, except as otherwise provided by law.
(e) NO FRACTIONAL SHARES. (i) No certificates or scrip representing
fractional shares of MoneyZone Common Stock shall be issued upon the surrender
for exchange of Certificates, no dividend or distribution of MoneyZone shall
relate to such fractional share interests and such fractional share interests
will not entitle the owner thereof to vote or to any rights of a stockholder of
MoneyZone.
(ii) MoneyZone shall pay each former holder of Sutton Online Common
Stock an amount in cash equal to the product obtained by multiplying (A) the
fractional share interest to which such former holder (after taking into account
all shares of Sutton Online Common Stock held at the Effective Time by such
holder) would otherwise be entitled by (B) the average closing price of the
MoneyZone Common Stock as reported on OTC Bulletin Board for the five trading
days ending two trading days prior to the Closing Date (the "MoneyZone Price").
5
(iii) As soon as practicable after the determination of the amount of
cash, if any, to be paid to holders of Certificates formerly representing Sutton
Online Common Stock with respect to any fractional share interests, the Exchange
Agent shall make available such amounts to such holders of Certificates formerly
representing Sutton Online Common Stock subject to and in accordance with the
terms of Section 2.2(c).
(f) TERMINATION OF EXCHANGE FUND. Any portion of the Exchange Fund
which remains undistributed to the holders of the Certificates for three months
after the Effective Time shall be delivered to MoneyZone, upon demand, and any
holders of the Certificates who have not theretofore complied with this Article
II shall thereafter look only to MoneyZone for payment of their claim for Merger
Consideration, any dividends or distributions with respect to MoneyZone Common
Stock and any cash in lieu of fractional shares of MoneyZone Common Stock.
(g) NO LIABILITY. None of MoneyZone, Sutton Online, the Surviving
Corporation or the Exchange Agent shall be liable to any person in respect of
any shares of MoneyZone Common Stock, any dividends or distributions with
respect thereto, any cash in lieu of fractional shares of MoneyZone Common Stock
or any cash from the Exchange Fund, in each case delivered to a public official
pursuant to any applicable abandoned property, escheat or similar law.
(h) INVESTMENT OF EXCHANGE FUND. The Exchange Agent shall invest any
cash included in the Exchange Fund, as directed by MoneyZone, on a daily basis.
Any interest and other income resulting from such investments shall be paid to
MoneyZone.
(i) LOST CERTIFICATES. If any Certificate shall have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming such Certificate to be lost, stolen or destroyed and, if required by
MoneyZone, the posting by such person of a bond in such reasonable amount as
MoneyZone may direct as indemnity against any claim that may be made against it
with respect to such Certificate, the Exchange Agent shall issue in exchange for
such lost, stolen or destroyed Certificate the Merger Consideration and, if
applicable, any unpaid dividends and distributions on shares of MoneyZone Common
Stock deliverable in respect thereof and any cash in lieu of fractional shares,
in each case pursuant to this Agreement.
SECTION 2.3. CERTAIN ADJUSTMENTS. If between the date hereof and the Effective
Time, the outstanding shares of Sutton Online Common Stock or of MoneyZone
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, the Exchange Ratio shall be adjusted
accordingly to provide to the holders of Sutton Online Common Stock the same
economic effect as contemplated by this Agreement prior to such
reclassification, recapitalization, split-up, combination, exchange or dividend.
6
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. REPRESENTATIONS AND WARRANTIES OF SUTTON ONLINE. Sutton Online
represents and warrants to MoneyZone and MergerSub as follows:
(a) ORGANIZATION, STANDING AND CORPORATE POWER. (i) Sutton Online is
a corporation or other legal entity duly organized, validly existing and in good
standing (with respect to jurisdictions which recognize such concept) under the
laws of the jurisdiction in which it is organized and has the requisite
corporate or other power and authority to carry on its business as now being
conducted, except, for those jurisdictions where the failure to be so organized,
existing or in good standing individually or in the aggregate would not have a
material adverse effect (as defined in Section 8.3) on Sutton Online. Sutton
Online is duly qualified or licensed to do business and is in good standing
(with respect to jurisdictions which recognize such concept) in each
jurisdiction in which the nature of its business or the ownership, leasing or
operation of its properties makes such qualification or licensing necessary,
except for those jurisdictions where the failure to be so qualified or licensed
or to be in good standing would not have a material adverse effect on Sutton
Online.
(b) SUBSIDIARIES. Sutton Online owns 90% of Sutton Online Europe as
of the date hereof. Sutton Online has entered into an agreement with Sutton
Online Europe to acquire the remaining 10% of Sutton Online Europe. In turn,
Sutton Online Europe owns (a) 51% of Sutton Data Services, SRO and (b) 20% of
Total Solutions SRO.
(c) AUTHORITY; NONCONTRAVENTION. Sutton Online has all requisite
corporate power and authority to enter into this Agreement and to consummate the
transactions contemplated by this Agreement. The execution and delivery of this
Agreement by Sutton Online and the consummation by Sutton Online of the
transactions contemplated by this Agreement have been duly authorized by all
necessary corporate action on the part of Sutton Online, subject, in the case of
the Merger, to the Sutton Online Stockholder Approval. This Agreement has been
duly executed and delivered by Sutton Online and, assuming the due
authorization, execution and delivery by MoneyZone and MergerSub constitutes the
legal, valid and binding obligation of Sutton Online, enforceable against Sutton
Online in accordance with its terms. The execution and delivery of this
Agreement do not, and the consummation of the transactions contemplated by this
Agreement and compliance with the provisions of this Agreement will not,
conflict with, or result in any violation of, or default (with or without notice
or lapse of time, or both) under, or give rise to a right of termination,
cancellation or acceleration of any obligation or loss of a benefit under, or
result in the creation of any Lien upon any of the properties or assets of
Sutton Online or any of its subsidiaries under, (i) the certificate of
7
incorporation or By-Laws of Sutton Online or the comparable organizational
documents of any of its subsidiaries, (ii) any loan or credit agreement, note,
bond, mortgage, indenture, lease or other agreement, instrument, permit,
concession, license or similar authorization applicable to Sutton Online or any
of its subsidiaries or their respective properties or assets or (iii) subject to
the governmental filings and other matters referred to in the following
sentence, any judgment, order, decree, statute, law, ordinance, rule or
regulation applicable to Sutton Online or any of its subsidiaries or their
respective properties or assets, other than, in the case of clauses (ii) and
(iii), any such conflicts, violations, defaults, rights, losses or Liens that
individually or in the aggregate would not (x) have a material adverse effect on
Sutton Online or (y) reasonably be expected to impair the ability of Sutton
Online to perform its obligations under this Agreement. No consent, approval,
order or authorization of, action by or in respect of, or registration,
declaration or filing with, any federal, state, local or foreign government, any
court, administrative, regulatory or other governmental agency, commission or
authority or any nongovernmental self-regulatory agency, commission or authority
(a "Governmental Entity") is required by or with respect to Sutton Online or any
of its subsidiaries in connection with the execution and delivery of this
Agreement by Sutton Online or the consummation by Sutton Online of the
transactions contemplated by this Agreement, except for (1) the filing of the
Certificate of Merger with the Secretary of State of Delaware and appropriate
documents with the relevant authorities of other states in which Sutton Online
is qualified to do business and such filings with Governmental Entities to
satisfy the applicable requirements of state securities or "blue sky" laws; and
(2) such consents, approvals, orders or authorizations the failure of which to
be made or obtained individually or in the aggregate would not (x) have a
material adverse effect on Sutton Online or (y) reasonably be expected to impair
the ability of Sutton Online to perform its obligations under this Agreement.
(d) CAPITALIZATION OF SUTTON ONLINE. The authorized capital stock of
the Sutton Online consists of 20,000,000 shares of Sutton Online Common Stock.
On the close of business on the date hereof, there were 6,000,000 shares of
Sutton Online Common Stock and no shares of Sutton Online Preferred Stock
outstanding. As the close of business on the date hereof, there are 3,000,000
warrants to purchase Sutton Online Common Stock at an exercise price of $2.50
per share. On the close of business on the date hereof, there are no bonds,
debentures, notes or other indebtedness having the right to vote on any matters
on which the Sutton Online's stockholders may vote issued or outstanding. All
outstanding shares of Sutton Online Common Stock are duly authorized and are
validly issued, fully paid and nonassessable and free of preemptive rights.
There are no issued, reserved for issuance or outstanding securities of Sutton
Online convertible into or exchangeable or exercisable for shares of capital
stock or voting securities of Sutton Online, or any warrants, calls, options or
other rights to acquire from Sutton Online.
(e) UNDISCLOSED LIABILITIES. Neither Sutton Online nor any of its
subsidiaries has any liabilities or obligations of any nature which,
individually or in the aggregate, would have a material adverse effect on Sutton
Online.
8
(f) INFORMATION SUPPLIED. None of the information supplied or to be
supplied by Sutton Online specifically for inclusion or incorporation by
reference in the Schedule 14C Information Statement (the "Information
Statement") to be filed with the SEC by MoneyZone in connection with the
approval of the transactions necessary to complete the Merger by the
stockholders of MoneyZone will 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. The Information Statement will comply as to form
in all material respects with the requirements of the Exchange Act and the rules
and regulations thereunder, except that no representation or warranty is made by
Sutton Online with respect to statements made or incorporated by reference
therein based on information supplied by MoneyZone specifically for inclusion or
incorporation by reference in the Information Statement.
(g) TAXES. (i) Each of Sutton Online and its subsidiaries has filed
all material tax returns and reports required to be filed by it and all such
returns and reports are complete and correct in all material respects, or
requests for extensions to file such returns or reports have been timely filed,
granted and have not expired, except to the extent that such failures to file,
to be complete or correct or to have extensions granted that remain in effect
individually or in the aggregate would not have a material adverse effect on
Sutton Online. Sutton Online and each of its subsidiaries has paid (or Sutton
Online has paid on its behalf) all taxes shown as due on such returns.
(ii) No deficiencies for any taxes have been proposed, asserted or
assessed against Sutton Online or any of its subsidiaries that are not
adequately reserved for, except for deficiencies that individually or in the
aggregate would not have a material adverse effect on Sutton Online.
(iii) Neither Sutton Online nor any of its subsidiaries has taken any
action or knows of any fact, agreement, plan or other circumstance that is
reasonably likely to prevent the Merger from qualifying as a reorganization
within the meaning of Section 368(a) of the Code.
(h) VOTING REQUIREMENTS. The affirmative vote at the Sutton Online
Stockholders Meeting (or written consent in lieu of such meeting) (the "Sutton
Online Stockholder Approval") of the holders of a majority of the total votes
represented by all outstanding shares of Sutton Online Common Stock to adopt
this Agreement is the only vote of the holders of any class or series of Sutton
Online's capital stock necessary to approve and adopt this Agreement and the
transactions contemplated hereby, including the Merger.
(i) STATE TAKEOVER STATUTES. The Board of Directors of Sutton Online
has approved this Agreement and the transactions contemplated hereby and such
approval constitutes approval of the Merger and the other transactions
contemplated hereby by the Sutton Online Board of Directors under the provisions
9
of Section 203 of the DGCL such that Section 203 of the DGCL does not apply to
this Agreement and the transactions contemplated hereby. To the knowledge of
Sutton Online, no other state takeover statute is applicable to the Merger or
the other transactions contemplated hereby.
(j) INTENTIONALLY OMITTED.
(k) ABSENCE OF CERTAIN CHANGES OR EVENTS. Since December 31, 2000,
Sutton Online and its subsidiaries have conducted their business only in the
ordinary course and prior to the date hereof, and there has not been (i) any
material adverse change in Sutton Online, (ii) any declaration, setting aside or
payment of any dividend or other distribution (whether in cash, stock or
property) with respect to any of Sutton Online's capital stock, (iii)(A) any
granting by Sutton Online or any of its subsidiaries to any current or former
director, executive officer or other key employee of Sutton Online or its
subsidiaries of any increase in compensation, bonus or other benefits, except
for normal increases as a result of promotions, normal increases of base pay in
the ordinary course of business or as was required under any employment
agreements in effect as of December 31, 2000, (B) any granting by Sutton Online
or any of its subsidiaries to any such current or former director, executive
officer or key employee of any increase in severance or termination pay, or (C)
any entry by Sutton Online or any of its subsidiaries into, or any amendment of,
any employment, deferred compensation consulting, severance, termination or
indemnification agreement with any such current or former director, executive
officer or key employee, (v) except insofar as may be or required by a change in
GAAP, any change in accounting methods, principles or practices by Sutton Online
materially affecting its assets, liabilities or business, or (vi) any tax
election that individually or in the aggregate would have a material adverse
effect on Sutton Online or any of its tax attributes or any settlement or
compromise of any material income tax liability.
(l) COMPLIANCE WITH APPLICABLE LAWS; LITIGATION. (i) Sutton Online,
its subsidiaries and employees hold all permits, licenses, variances,
exemptions, orders, registrations and approvals of all Governmental Entities
which are required for the operation of the businesses of Sutton Online and its
subsidiaries (the "Sutton Online Permits") except where the failure to have any
such Sutton Online Permits individually or in the aggregate would not have a
material adverse effect on Sutton Online. Sutton Online and its subsidiaries are
in compliance with the terms of the Sutton Online Permits and all applicable
statutes, laws, ordinances, rules and regulations, except where the failure so
to comply individually or in the aggregate would not have a material adverse
effect on Sutton Online. As of the date of this Agreement, no action, demand,
requirement or investigation by any Governmental Entity and no suit, action or
proceeding by any person, in each case with respect to Sutton Online or any of
its subsidiaries or any of their respective properties, is pending or, to the
knowledge of Sutton Online, threatened, other than, in each case, those the
outcome of which individually or in the aggregate would not (A) have a material
adverse effect on Sutton Online or (B) reasonably be expected to impair the
ability of Sutton Online to perform its obligations under this Agreement or
prevent or materially delay the consummation of any of the transactions
contemplated by this Agreement.
10
(ii) Neither Sutton Online nor any Sutton Online subsidiary is the
subject to any claim, cause of action, complaint, order, injunction or decree
which has had or, insofar as can be reasonably foreseen, individually or in the
aggregate will have a material adverse effect on Sutton Online.
(m) INTELLECTUAL PROPERTY. Sutton Online and its subsidiaries own or
have a valid license to use all trademarks, service marks, trade names, patents
and copyrights (including any registrations or applications for registration of
any of the foregoing) (collectively, the "Sutton Online Intellectual Property")
necessary to carry on its business substantially as currently conducted, except
for such Sutton Online Intellectual Property the failure of which to own or
validly license individually or in the aggregate would not have a material
adverse effect on Sutton Online. Neither Sutton Online nor any such subsidiary
has received any notice of infringement of or conflict with, and, to Sutton
Online's knowledge, there are no infringements of or conflicts (i) with the
rights of others with respect to the use of, or (ii) by others with respect to,
any Sutton Online Intellectual Property that individually or in the aggregate,
in either such case, would have a material adverse effect on Sutton Online.
(n) CERTAIN CONTRACTS. Neither Sutton Online nor any of its
subsidiaries is a party to or bound by (i) any "material contract" (as such term
is defined in item 601(b)(10) of Regulation S-K of the SEC), (ii) any
non-competition agreement or any other agreement or obligation which purports to
limit in any material respect the manner in which, or the localities in which,
all or any material portion of the business of Sutton Online and its
subsidiaries (including MoneyZone and its subsidiaries, assuming the Merger had
taken place), taken as a whole, is or would be conducted, or (iii) any contract
or other agreement which would prohibit or materially delay the consummation of
the Merger or any of the transactions contemplated by this Agreement (all
contracts of the type described in clauses (i) and (ii) being referred to herein
as "Sutton Online Material Contracts"). Each Sutton Online Material Contract is
valid and binding on Sutton Online (or, to the extent a Sutton Online subsidiary
is a party, such subsidiary) and is in full force and effect, and Sutton Online
and each Sutton Online subsidiary have in all material respects performed all
obligations required to be performed by them to date under each Sutton Online
Material Contract, except where such noncompliance, individually or in the
aggregate, would not have a material adverse effect on Sutton Online. Neither
Sutton Online nor any Sutton Online subsidiary knows of, or has received notice
of, any violation or default under (nor, to the knowledge of Sutton Online, does
there exist any condition which with the passage of time or the giving of notice
or both would result in such a violation or default under) any Sutton Online
Material Contract.
(o) INTENTIONALLY OMITTED.
11
(p) AFFILIATE TRANSACTIONS. Except as otherwise disclosed herein,
Sutton Online nor any officer, director or employee of Sutton Online (or any of
the relatives or Affiliates of any of the aforementioned Persons) is a party to
any agreement, contract, commitment or transaction with Sutton Online or
affecting the business, or has any interest in any property, whether real,
personal or mixed, or tangible or intangible, used in or necessary to the
business which will subject MoneyZone to any liability or obligation from and
after the Closing Date. Except as otherwise disclosed, no officer, director or
employee of Sutton Online (or any of the relatives or Affiliates of any of the
aforementioned Persons) is an officer or director of any distributor or supplier
of MoneyZone. (Q) Employee Benefit Plans. SUTTON ONLINE HAS NO EMPLOYEE BENEFIT
PLANS.
SECTION 3.2. REPRESENTATIONS AND WARRANTIES OF MONEYZONE. Except as making
reference to the particular subsection of this Agreement to which exception is
being taken, MoneyZone represents and warrants to Sutton Online as follows:
(a) ORGANIZATION, STANDING AND CORPORATE POWER. (i) Each of MoneyZone
and its subsidiaries is a corporation or other legal entity duly organized,
validly existing and in good standing (with respect to jurisdictions which
recognize such concept) under the laws of the jurisdiction in which it is
organized and has the requisite corporate or other power, as the case may be,
and authority to carry on its business as now being conducted, except, as to
subsidiaries, for those jurisdictions where the failure to be so organized,
existing or in good standing individually or in the aggregate would not have a
material adverse effect on MoneyZone. Each of MoneyZone and its subsidiaries is
duly qualified or licensed to do business and is in good standing (with respect
to jurisdictions which recognize such concept) in each jurisdiction in which the
nature of its business or the ownership, leasing or operation of its properties
makes such qualification or licensing necessary, except for those jurisdictions
where the failure to be so qualified or licensed or to be in good standing
individually or in the aggregate would not have a material adverse effect on
MoneyZone.
(b) SUBSIDIARIES. Sutton Merger Corp., a Delaware corporation, is a
wholly owned subsidiary of MoneyZone. All the outstanding shares of capital
stock of, or other equity interests in, such subsidiary have been validly issued
and are fully paid and nonassessable and are owned directly or indirectly by
MoneyZone, free and clear of all Liens and free of any other restriction
(including any restriction on the right to vote, sell or otherwise dispose of
such capital stock or other ownership interests).
(c) AUTHORITY; NONCONTRAVENTION. MoneyZone has all requisite
corporate power and authority to enter into this Agreement and, subject to the
required stockholder approval of MoneyZone as contemplated in the Information
Statement, as defined herein, ("MoneyZone Stockholder Approval"), to consummate
the transactions contemplated by this Agreement. The execution and delivery of
this Agreement by MoneyZone and the consummation by MoneyZone of the
transactions contemplated by this Agreement have been duly authorized by all
12
necessary corporate action on the part of MoneyZone. This Agreement has been
duly executed and delivered by MoneyZone and, assuming the due authorization,
execution and delivery by Sutton Online, constitutes the legal, valid and
binding obligations of MoneyZone, enforceable against MoneyZone in accordance
with its terms. The execution and delivery of this Agreement do not, and the
consummation of the transactions contemplated by this Agreement and compliance
with the provisions of this Agreement will not, conflict with, or result in any
violation of, or default (with or without notice or lapse of time, or both)
under, or give rise to a right of termination, cancellation or acceleration of
any obligation or loss of a benefit under, or result in the creation of any Lien
upon any of the properties or assets of MoneyZone or any of its subsidiaries
under, (i) the certificate of incorporation or By-Laws of MoneyZone or the
comparable organizational documents of any of its subsidiaries, (ii) any loan or
credit agreement, note, bond, mortgage, indenture, lease or other agreement,
instrument, permit, concession, franchise, license or similar authorization
applicable to MoneyZone or any of its subsidiaries or their respective
properties or assets or (iii) subject to the governmental filings and other
matters referred to in the following sentence, any judgment, order, decree,
statute, law, ordinance, rule or regulation applicable to MoneyZone or any of
its subsidiaries or their respective properties or assets, other than, in the
case of clauses (ii) and (iii), any such conflicts, violations, defaults,
rights, losses or Liens that individually or in the aggregate would not (x) have
a material adverse effect on MoneyZone or (y) reasonably be expected to impair
the ability of MoneyZone to perform its obligations under this Agreement. No
consent, approval, order or authorization of, action by, or in respect of, or
registration, declaration or filing with, any Governmental Entity is required by
or with respect to MoneyZone or any of its subsidiaries in connection with the
execution and delivery of this Agreement by MoneyZone or the consummation by
MoneyZone of the transactions contemplated by this Agreement, except for (1) the
filing with the SEC of (A) the Information Statement and (B) such reports under
Section 13(a), 13(d), 15(d) or 16(a) of the Exchange Act as may be required in
connection with this Agreement and the transactions contemplated by this
Agreement; (2) the filing of the Certificate of Merger with the Secretary of
State of Delaware and appropriate documents with the relevant authorities of
other states in which MoneyZone is qualified to do business and such filings
with Governmental Entities to satisfy the applicable requirements of state
securities or "blue sky" laws; and (3) such consents, approvals, orders or
authorizations the failure of which to be made or obtained individually or in
the aggregate would not (x) have a material adverse effect on MoneyZone or (y)
reasonably be expected to impair the ability of MoneyZone to perform its
obligations under this Agreement.
SECTION 3.3. REPRESENTATIONS AND WARRANTIES OF MERGERSUB. Except as making
reference to the particular subsection of this Agreement to which exception is
being taken, MoneyZone and MergerSub represents and warrants to Sutton Online as
follows:
(a) ORGANIZATION, STANDING AND CORPORATE POWER. (i) MergerSub is a
corporation or other legal entity duly organized, validly existing and in good
standing (with respect to jurisdictions which recognize such concept) under the
laws of the jurisdiction in which it is organized and has the requisite
corporate or other power and authority to carry on its business as now being
13
conducted, except, for those jurisdictions where the failure to be so organized,
existing or in good standing individually or in the aggregate would not have a
material adverse effect (as defined in Section 8.3) on MergerSub.
(b) SUBSIDIARIES. MergerSub does not beneficially own any
subsidiaries.
(c) CAPITAL STRUCTURE. The authorized capital stock of MergerSub
consists of 100 shares of MergerSub Common Stock. At the close of business on
the date hereof: (i) 100 shares of MergerSub Common Stock were issued and
outstanding, and owned by MoneyZone; and (ii) no shares of MergerSub Common
Stock were held by MergerSub in its treasury. All outstanding shares of capital
stock of MergerSub are, and all shares which may be issued will be, when issued,
duly authorized, validly issued, fully paid and nonassessable and not subject to
preemptive rights. There are no issued, reserved for issuance or outstanding
securities of MergerSub or any MergerSub subsidiary convertible into or
exchangeable or exercisable for shares of capital stock or voting securities of
MergerSub, or any warrants, calls, options or other rights to acquire from
MergerSub or any MergerSub subsidiary.
(d) AUTHORITY; NONCONTRAVENTION. MergerSub has all requisite
corporate power and authority to enter into this Agreement and to consummate the
transactions contemplated by this Agreement. The execution and delivery of this
Agreement by MergerSub and the consummation by MergerSub of the transactions
contemplated by this Agreement have been duly authorized by all necessary
corporate action on the part of MergerSub, subject, in the case of the Merger,
to the MergerSub Stockholder Approval. This Agreement has been duly executed and
delivered by MergerSub and, assuming the due authorization, execution and
delivery by MoneyZone and MergerSub constitutes the legal, valid and binding
obligation of MergerSub, enforceable against MergerSub in accordance with its
terms. The execution and delivery of this Agreement do not, and the consummation
of the transactions contemplated by this Agreement and compliance with the
provisions of this Agreement will not, conflict with, or result in any violation
of, or default (with or without notice or lapse of time, or both) under, or give
rise to a right of termination, cancellation or acceleration of any obligation
or loss of a benefit under, or result in the creation of any Lien upon any of
the properties or assets of MergerSub or any of its subsidiaries under, (i) the
certificate of incorporation or By-Laws of MergerSub or the comparable
organizational documents of any of its subsidiaries, (ii) any loan or credit
agreement, note, bond, mortgage, indenture, lease or other agreement,
instrument, permit, concession, license or similar authorization applicable to
MergerSub or any of its subsidiaries or their respective properties or assets or
(iii) subject to the governmental filings and other matters referred to in the
following sentence, any judgment, order, decree, statute, law, ordinance, rule
or regulation applicable to MergerSub or any of its subsidiaries or their
respective properties or assets, other than, in the case of clauses (ii) and
(iii), any such conflicts, violations, defaults, rights, losses or Liens that
individually or in the aggregate would not (x) have a material adverse effect on
MergerSub or (y) reasonably be expected to impair the ability of MergerSub to
perform its obligations under this Agreement. No consent, approval, order or
14
authorization of, action by or in respect of, or registration, declaration or
filing with, any federal, state, local or foreign government, any court,
administrative, regulatory or other governmental agency, commission or authority
or any nongovernmental self-regulatory agency, commission or authority (a
"Governmental Entity") is required by or with respect to MergerSub or any of its
subsidiaries in connection with the execution and delivery of this Agreement by
MergerSub or the consummation by MergerSub of the transactions contemplated by
this Agreement, except for (1) the filing of the Certificate of Merger with the
Secretary of State of Delaware and appropriate documents with the relevant
authorities of other states in which MergerSub is qualified to do business and
such filings with Governmental Entities to satisfy the applicable requirements
of state securities or "blue sky" laws; and (2) such consents, approvals, orders
or authorizations the failure of which to be made or obtained individually or in
the aggregate would not (x) have a material adverse effect on MergerSub or (y)
reasonably be expected to impair the ability of MergerSub to perform its
obligations under this Agreement.
ARTICLE IV
COVENANTS RELATING TO CONDUCT OF BUSINESS
SECTION 4.1. CONDUCT OF BUSINESS.
(a) CONDUCT OF BUSINESS BY SUTTON ONLINE. Except as other wise
expressly contemplated by this Agreement or as consented to by MoneyZone in
writing, such consent not to be unreasonably withheld or delayed, during the
period from the date of this Agreement to the Effective Time, Sutton Online
shall carry on its business in the ordinary course consistent with past practice
and in compliance in all material respects with all applicable laws and
regulations and, to the extent consistent therewith, use all reasonable efforts
to preserve intact their current business organizations, use reasonable efforts
to keep available the services of their current officers and other key employees
and preserve their relationships with those persons having business dealings
with them to the end that their goodwill and ongoing businesses shall be
unimpaired at the Effective Time.
(b) CONDUCT OF BUSINESS BY MONEYZONE AND SUBSIDIARIES. Except as
otherwise expressly contemplated by this Agreement or as consented to by Sutton
Online in writing, such consent not to be unreasonably withheld or delayed,
during the period from the date of this Agreement to the Effective Time,
MoneyZone shall, and shall cause its subsidiaries to, carry on their respective
businesses in the ordinary course consistent with past practice and in
compliance in all material respects with all applicable laws and regulations
and, to the extent consistent therewith, use all reasonable efforts to preserve
intact their current business organizations, use reasonable efforts to keep
available the services of their current officers and other key employees and
preserve their relationships with those persons having business dealings with
them to the end that their goodwill and ongoing businesses shall be unimpaired
at the Effective Time.
15
(c) OTHER ACTIONS. Except as required by law, Sutton Online and
MoneyZone shall not, and shall not permit any of their respective subsidiaries
to, voluntarily take any action that would, or that could reasonably be expected
to, result in (i) any of the representations and warranties of such party set
forth in this Agreement that are qualified as to materiality becoming untrue at
the Effective Time, except as provided in the proviso in Section 6.2(a) or
Section 6.3(a), (ii) any of such representations and warranties that are not so
qualified becoming untrue in any material respect at the Effective Time, except
as provided in the proviso in Section 6.2(a) or Section 6.3(a), or (iii) any of
the conditions to the Merger set forth in Article VI not being satisfied.
(d) ADVICE OF CHANGES. Sutton Online and MoneyZone shall promptly
advise the other party orally and in writing to the extent it has knowledge of
(i) any representation or warranty made by it contained in this Agreement that
is qualified as to materiality becoming untrue or inaccurate in any respect or
any such representation or warranty that is not so qualified becoming untrue or
inaccurate in any material respect, (ii) the failure by it to comply in any
material respect with or satisfy in any material respect any covenant, condition
or agreement to be complied with or satisfied by it under this Agreement and
(iii) any change or event having, or which, insofar as can reasonably be
foreseen, could reasonably be expected to have a material adverse effect on such
party or on the truth of their respective representations and warranties or the
ability of the conditions set forth in Article VI to be satisfied; provided,
however, that no such notification shall affect the representations, warranties,
covenants or agreements of the parties (or remedies with respect thereto) or the
conditions to the obligations of the parties under this Agreement.
ARTICLE V
ADDITIONAL AGREEMENTS
SECTION 5.1. BEST EFFORTS. (a) Upon the terms and subject to the conditions
set forth in this Agreement, each of the parties agrees to use best efforts to
take, or cause to be taken, all actions, and to do, or cause to be done, and to
assist and cooperate with the other parties in doing, all things necessary,
proper or advisable to consummate and make effective, in the most expeditious
manner practicable, the Merger and the other transactions contemplated by this
Agreement, including (i) the obtaining of all necessary actions or nonactions,
waivers, consents and approvals from Governmental Entities and the making of all
necessary registrations and filings and the taking of all steps as may be
necessary to obtain an approval or waiver from, or to avoid an action or
proceeding by, any Governmental Entity, (ii) the obtaining of all necessary
consents, approvals or waivers from third parties, (iii) the defending of any
lawsuits or other legal proceedings, whether judicial or administrative,
challenging this Agreement or the consummation of the transactions contemplated
by this Agreement, including seeking to have any stay or temporary restraining
order entered by any court or other Governmental Entity vacated or reversed,
16
(iv) the execution and delivery of any additional instruments necessary to
consummate the transactions contemplated by, and to fully carry out the purposes
of, this Agreement, and (v) obtaining all the necessary shareholder approvals of
the transactions required to complete the Merger.
(b) In connection with and without limiting the foregoing, Sutton
Online and MoneyZone shall (i) take all action necessary to ensure that no state
takeover statute or similar statute or regulation is or becomes applicable to
the Merger, this Agreement, or any of the other transactions contemplated by
this Agreement and (ii) if any state takeover statute or similar statute or
regulation becomes applicable to the Merger, this Agreement, or any other
transaction contemplated by this Agreement, take all action necessary to ensure
that the Merger and the other transactions contemplated by this Agreement may be
consummated as promptly as practicable on the terms contemplated by this
Agreement and otherwise to minimize the effect of such statute or regulation on
the Merger and the other transactions contemplated by this Agreement.
SECTION 5.2. INDEMNIFICATION, EXCULPATION AND INSURANCE.
(a) MoneyZone agrees to maintain in effect in accordance with their
terms all rights to indemnification and exculpation from liabilities for acts or
omissions occurring at or prior to the Effective Time now existing in favor of
the current or former directors or officers of Sutton Online and its
subsidiaries as provided in their respective certificates of incorporation or
by-laws (or comparable organizational documents) and any indemnification
agreements of Sutton Online. In addition, from and after the Effective Time,
directors and officers of Sutton Online who become directors or officers of
MoneyZone will be entitled to the same indemnity rights and protections as are
afforded to other directors and officers of MoneyZone.
(b) In the event that MoneyZone or any of its successors or assigns
(i) consolidates with or merges into any other person and is not the continuing
or surviving corporation or entity of such consolidation or merger or (ii)
transfers or conveys all or substantially all of its properties and assets to
any person, then, and in each such case, proper provision will be made so that
the successors and assigns of MoneyZone assume the obligations set forth in this
Section.
(c) For seven years after the Effective Time, MoneyZone shall provide
to Sutton Online's current directors and officers liability insurance covering
acts or omissions occurring prior to the Effective Time with respect to those
persons who are currently Sutton Online's directors and officers.
(d) The provisions of this Section are intended to be for the benefit
of, and will be enforceable by, each indemnified party, his or her heirs and his
or her representatives and (ii) are in addition to, and not in substitution for,
any other rights to indemnification or contribution that any such person may
have by contract or otherwise.
17
SECTION 5.3. INDEMNIFICATION.
(a) SUTTON ONLINE INDEMNIFICATION. Sutton Online agrees to indemnify
MoneyZone and its affiliates and their respective officers, directors, employees
and representatives (the "MoneyZone Indemnitees"), and hold them harmless
against any loss, liability, deficiency, damage or expense (including reasonable
legal fees and expenses and including interest and penalties) (a "Loss") which
any MoneyZone Indemnitee may suffer, sustain or become subject to, as a result
of (i) the breach by Sutton Online of any representation, warranty, covenant or
agreement made by Sutton Online contained in this Agreement or in any writing
delivered by Sutton Online in connection with this Agreement, (ii) any action,
demand, proceeding, investigation or claim by a third party (including
governmental agencies) against or affecting any MoneyZone Indemnitee, the
business (as operated by MoneyZone or its successor in interest), would give
rise to or evidence the existence of or relate to a breach of any of the
representations, warranties, covenants or agreements of Sutton Online or (iii)
any claims of any brokers or finders claiming by, through or under Sutton
Online.
(b) MONEYZONE INDEMNIFICATION. MoneyZone agrees to indemnify Sutton
Online and their respective officers, directors, employees and representatives
(the "Sutton Online Indemnitees") and hold them harmless against any Loss which
any Sutton Online Indemnitee may suffer, sustain or become subject to, as the
result of (i) the breach by MoneyZone of any representation, warranty, covenant
or agreement made by MoneyZone contained in this Agreement or in any writing
delivered by MoneyZone in connection with this Agreement, (ii) any action,
demand, proceeding, investigation or claim by a third party (including
governmental agencies) against or affecting any Sutton Online Indemnitee which,
if successful, would give rise to or evidence the existence of or relate to a
breach of any of the representations, warranties, covenants or agreements of
MoneyZone or (iii) any claims of any brokers or finders claiming by, through or
under MoneyZone.
(c) DEFENSE OF CLAIMS. If a party hereto seeks indemnification under
this Section, such party (the "Indemnified Party") shall give written notice to
the other party (the "Indemnifying Party") of the facts and circumstances giving
rise to the claim. In that regard, if any suit, action, claim, liability or
obligation (a "Proceeding") shall be brought or asserted by any third party
which, if adversely determined, would entitle the Indemnified Party to indemnity
pursuant to this Section, the Indemnified Party shall within 30 days notify the
Indemnifying Party of the same in writing, specifying in detail the basis of
such claim and the facts pertaining thereto; provided that the failure to so
notify an Indemnifying Party shall not relieve the Indemnifying Party of its
obligations hereunder except to the extent such failure shall have harmed the
Indemnifying Party. The Indemnifying Party, if it so elects, shall assume and
control the defense of such Proceeding (and shall consult with the Indemnified
Party with respect thereto), including the employment of counsel reasonably
satisfactory to the Indemnified Party and the payment of expenses; provided,
however, that in the event any Proceeding shall be brought or asserted by any
18
third party which, if adversely determined, would not entitle the Indemnified
Party to full indemnity pursuant to this Section, the Indemnified Party may
elect to participate in a joint defense of such Proceeding (a "Joint Defense
Proceeding") for which the expenses of such joint defense will be shared equally
by such parties and the employment of counsel shall be reasonably satisfactory
to both parties. If the Indemnifying Party elects to assume and control the
defense of a Proceeding, it will provide notice thereof within 30 days after the
Indemnified Party has given notice of the matter and if such Proceeding is not a
Joint Defense Proceeding, the Indemnified Party shall have the right to employ
counsel separate from counsel employed by the Indemnifying Party in any such
action and to participate in the defense thereof, but the fees and expenses of
such counsel employed by the Indemnified Party shall be at the expense of the
Indemnified Party unless (i) the employment thereof has been specifically
authorized by the Indemnifying Party in writing or (ii) the Indemnifying Party
has failed to assume the defense and employ counsel. The Indemnifying Party
shall not be liable for any settlement of any Proceeding, the defense of which
it has elected to assume, which settlement is effected without the written
consent of the Indemnifying Party; provided that no settlement of a Joint
Defense Proceeding may be effected without the written consent of both parties.
If there shall be a settlement to which the Indemnifying Party consents or a
final judgment for the plaintiff in any Proceeding, the defense of which the
Indemnifying Party has elected to assume, the Indemnifying Party shall indemnify
the Indemnified Party with respect to the settlement or judgment. If the
Indemnifying Party elects to assume and control the defense or in the event of a
Joint Defense Proceeding, the Indemnified Party shall take all reasonable
efforts necessary to assist the Indemnifying Party in such defense.
(d) PAYMENTS. Any payment pursuant to a claim for indemnification
shall be made not later than 30 days after receipt by the Indemnifying Party of
written notice from the Indemnified Party stating the amount of the claim,
unless the claim is subject to defense as provided in herein or is a dispute,
claim or controversy which is the subject of an unresolved arbitration
proceeding, in which case payment shall be made not later than 30 days after the
amount of the claim is finally determined. Any payment required under this
Section which is not made when due shall bear interest at the rate of 8.50% per
annum.
SECTION 5.4. FEES AND EXPENSES. All fees and expenses incurred in connection
with the Merger, this Agreement, and the transactions contemplated by this
Agreement shall be paid by the party incurring such fees or expenses, whether or
not the Merger is consummated.
SECTION 5.5. PUBLIC ANNOUNCEMENTS. MoneyZone and Sutton Online will consult
with each other before issuing, and provide each other the opportunity to
review, comment upon and concur with and use reasonable efforts to agree on, any
press release or other public statements with respect to the transactions
contemplated by this Agreement, including the Merger, and shall not issue any
such press release or make any such public statement prior to such consultation,
except as either party may determine is required by applicable law, court
process or by obligations pursuant to any listing agreement with any national
19
securities exchange. The parties agree that the initial press release to be
issued with respect to the transactions contemplated by this Agreement shall be
in the form heretofore agreed to by the parties.
SECTION 5.6. AFFILIATES. (a) As soon as practicable after the date hereof,
Sutton Online shall deliver to MoneyZone a letter identifying all persons who
are, at the time this Agreement is submitted for adoption by the stockholders of
Sutton Online, "affiliates" of Sutton Online for purposes of Rule 145 under the
Securities Act and such list shall be updated as necessary to reflect changes
from the date hereof.
(b) MoneyZone shall publish no later than 45 days after the end of
the first month after the Effective Time in which there are at least 30 days of
post Merger combined operations (which month may be the month in which the
Effective Time occurs), combined sales and net income figures as contemplated by
and in accordance with the terms of SEC Accounting Series Release No. 135.
SECTION 5.7. BULLETIN BOARD LISTING. MoneyZone shall use its best efforts to
maintain the listing of its shares of Common Stock on the OTC Bulletin Board.
SECTION 5.8. STOCKHOLDER LITIGATION. Each of Sutton Online and MoneyZone shall
give the other the reasonable opportunity to participate in the defense of any
stockholder litigation against Sutton Online or MoneyZone, as applicable, and
its directors relating to the transactions contemplated by this Agreement. In
case any such action is brought against any indemnified party, and it notifies
the indemnifying party of the commencement thereof, the indemnifying party will
be entitled to participate in, and, to the extent that it may wish, jointly with
any other indemnifying party similarly notified, to assume the defense thereof,
subject to the provisions herein stated, with counsel reasonably satisfactory to
such indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. The indemnified party shall have the right to employ
separate counsel in any such action and to participate in the defense thereof,
but the fees and expenses of such counsel shall not be at the expense of the
indemnifying party if the indemnifying party has assumed the defense of the
action with counsel reasonably satisfactory to the indemnified party; provided
that the reasonable fees and expenses of such counsel shall be at the expense of
the indemnifying party if (i) the employment of such counsel has been
specifically authorized in writing by the indemnifying party or (ii) the named
parties to any such action (including any impleaded parties) include both the
indemnified party and the indemnifying party and in the reasonable judgment of
the counsel to the indemnified party, it is advisable for the indemnified party
to be represented by separate counsel (in which case the indemnifying party
shall not have the right to assume the defense of such action on behalf of such
indemnified party, it being understood, however, that the indemnifying party
shall not, in connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
20
general allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys for the indemnified party,
which firm shall be designated in writing by the indemnified party). No
settlement of any action against an indemnified party shall be made without the
consent of the indemnified party, which shall not be unreasonably withheld in
light of all factors of importance to such indemnified party. If it is
ultimately determined that indemnification is not permitted, then an indemnified
party will return all monies advanced to the indemnifying party.
SECTION 5.9. TAX TREATMENT. Each of MoneyZone and Sutton Online shall use best
efforts to cause the Merger to qualify as a reorganization under the provisions
of Section 368 of the Code.
SECTION 5.10. CONVEYANCE TAXES. MoneyZone and Sutton Online shall cooperate in
the preparation, execution and filing of all returns, questionnaires,
applications or other documents regarding any real property transfer or gains,
sales, use, transfer, value added, stock transfer and stamp taxes, any transfer,
recording, registration and other fees or any similar taxes which become payable
in connection with the transactions contemplated by this Agreement that are
required or permitted to be filed on or before the Effective Time. MoneyZone
shall pay, and Sutton Online shall pay, without deduction or withholding from
any amount payable to the holders of Sutton Online Common Stock, any such taxes
or fees imposed by any Governmental Entity (and any penalties and interest with
respect to such taxes and fees), which become payable in connection with the
transactions contemplated by this Agreement, on behalf of their respective
stockholders.
ARTICLE VI
CONDITIONS PRECEDENT
SECTION 6.1. CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE MERGER. The
respective obligation of each party to effect the Merger is subject to the
satisfaction or waiver on or prior to the Closing Date of the following
conditions:
(a) STOCKHOLDER APPROVALS. Each of the Sutton Online Stockholder
Approval and the approval of the stockholders of MergerSub and MoneyZone shall
have been obtained.
(b) GOVERNMENTAL AND REGULATORY APPROVALS. Other than the filing
provided for under Section 1.3, all consents, approvals and actions of, filings
with and notices to any Governmental Entity required of Sutton Online, MoneyZone
21
or any of their subsidiaries to consummate the Merger and the other transactions
contemplated hereby, the failure of which to be obtained or taken (i) is
reasonably expected to have a material adverse effect on the Surviving
Corporation and its prospective subsidiaries, taken as a whole, or (ii) will
result in a violation of any laws, shall have been obtained, all in form and
substance reasonably satisfactory to Sutton Online and MoneyZone.
(c) NO INJUNCTIONS OR RESTRAINTS. No judgment, order, decree,
statute, law, ordinance, rule or regulation, entered, enacted, promulgated,
enforced or issued by any court or other Governmental Entity of competent
jurisdiction or other legal restraint or prohibition (collectively,
"Restraints") shall be in effect (i) preventing the consummation of the Merger,
or (ii) which otherwise is reasonably likely to have a material adverse effect
on Sutton Online or MoneyZone, as applicable; provided, however, that each of
the parties shall have used its best efforts to prevent the entry of any such
Restraints and to appeal as promptly as possible any such Restraints that may be
entered.
(d) INFORMATION STATEMENT. The Information Statement shall have been
submitted to the SEC and mailed to all stockholders of MoneyZone not less than
20 days prior to the Closing Date.
(e) CORPORATE GOVERNANCE. MoneyZone shall have taken all such actions
as shall be necessary so that the resolutions set forth as part of Exhibit A
shall have been adopted, to be effective upon the Effective Time.
SECTION 6.2. CONDITIONS TO OBLIGATIONS OF MONEYZONE. The obligation of
MoneyZone to effect the Merger is further subject to satisfaction or waiver of
the following conditions:
(a) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Sutton Online set forth herein shall be true and correct both when
made and at and as of the Closing Date, as if made at and as of such time
(except to the extent expressly made as of an earlier date, in which case as of
such date), except where the failure of such representations and warranties to
be so true and correct (without giving effect to any limitation as to
"materiality" or "material adverse effect" set forth therein) does not have, and
is not likely to have, individually or in the aggregate, a material adverse
effect on Sutton Online.
(b) PERFORMANCE OF OBLIGATIONS OF SUTTON ONLINE. Sutton Online shall
have performed in all material respects all obligations required to be performed
by it under this Agreement at or prior to the Closing Date.
(c) NO MATERIAL ADVERSE CHANGE. At any time after the date of this
Agreement there shall not have occurred any material adverse change relating to
Sutton Online.
22
SECTION 6.3. CONDITIONS TO OBLIGATIONS OF SUTTON ONLINE. The obligation of
Sutton Online to effect the Merger is further subject to satisfaction or waiver
of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of MoneyZone and MergerSub set forth herein shall be true and correct
both when made and at and as of the Closing Date, as if made at and as of such
time (except to the extent expressly made as of an earlier date, in which case
as of such date), except where the failure of such representations and
warranties to be so true and correct (without giving effect to any limitation as
to "materiality," or "material adverse effect" set forth therein) does not have,
and is not likely to have, individually or in the aggregate, a material adverse
effect on MoneyZone.
(b) PERFORMANCE OF OBLIGATIONS OF MONEYZONE. MoneyZone shall have
performed in all material respects all obligations required to be performed by
it under this Agreement at or prior to the Closing Date.
(c) NO MATERIAL ADVERSE CHANGE. At any time after the date of this
Agreement there shall not have occurred any material adverse change relating to
MoneyZone.
SECTION 6.4. FRUSTRATION OF CLOSING CONDITIONS. Neither MoneyZone nor Sutton
Online may rely on the failure of any condition set forth in Section 6.1, 6.2 or
6.3, as the case may be, to be satisfied if such failure was caused by such
party's failure to use best efforts to consummate the Merger and the other
transactions contemplated by this Agreement, as required by and subject to
Section 5.5.
ARTICLE VII
TERMINATION, AMENDMENT AND WAIVER
SECTION 7.1. TERMINATION. This Agreement may be terminated at any time prior
to the Effective Time, and whether before or after the Sutton Online Stockholder
Approval or the MoneyZone Stockholder Approval:
(a) by mutual written consent of MoneyZone, MergerSub and Sutton
Online;
(b) by either MoneyZone or Sutton Online:
(i) if the Merger shall not have been consummated by September 30,
2001, provided, however, that the right to terminate this Agreement pursuant to
this Section 7.1 shall not be available to any party whose failure to perform
23
any of its obligations under this Agreement results in the failure of the Merger
to be consummated by such time; provided, however, that this Agreement may be
extended not more than 30 days by either party by written notice to the other
party if the Merger shall not have been consummated as a direct result of
MoneyZone or Sutton Online having failed to receive all regulatory approvals
required to be obtained with respect to the Merger.
(ii) if the MoneyZone Stockholder Approval shall not have been
obtained at a MoneyZone Stockholders Meeting duly convened therefor or at any
adjournment or postponement thereof; or
(iii) if any restraint having any of the effects set forth herein shall
be in effect and shall have become final and nonappealable; provided, that the
party seeking to terminate this Agreement pursuant to this Section 7.1 shall
have used best efforts to prevent the entry of and to remove such Restraint;
(c) by MoneyZone, if Sutton Online shall have breached or failed to
perform in any material respect any of its representations, warranties,
covenants or other agreements contained in this Agreement, which breach or
failure to perform (A) would give rise to the failure of a condition set forth
herein is incapable of being cured by Sutton Online or is not cured within 45
days of written notice thereof;
(d) by Sutton Online, if MoneyZone shall have breached or failed to
perform in any material respect any of its representations, warranties,
covenants or other agreements contained in this Agreement, which breach or
failure to perform (A) would give rise to the failure of a condition set forth
in Section 6.3(a) or (b), and (B) is incapable of being cured by MoneyZone or is
not cured within 45 days of written notice thereof.
SECTION 7.2. EFFECT OF TERMINATION. In the event of termination of this
Agreement by either Sutton Online or MoneyZone as provided in Section 7.1, this
Agreement shall forthwith become void and have no effect, without any liability
or obligation on the part of MoneyZone or Sutton Online, and except to the
extent that such termination results from the willful and material breach by a
party of any of its representations, warranties, covenants or agreements set
forth in this Agreement.
SECTION 7.3. AMENDMENT. This Agreement may be amended by the parties at any
time before or after the Sutton Online Stockholder Approval or the MoneyZone
Stockholder Approval; provided, however, that after any such approval, there
shall not be made any amendment that by law requires further approval by the
stockholders of Sutton Online or MoneyZone without the further approval of such
stockholders. This Agreement may not be amended except by an instrument in
writing signed on behalf of each of the parties.
SECTION 7.4. EXTENSION; WAIVER. At any time prior to the Effective Time, a
party may (a) extend the time for the performance of any of the obligations or
other acts of the other parties, (b) waive any inaccuracies in the
24
representations and warranties of the other parties contained in this Agreement
or in any document delivered pursuant to this Agreement or (c) subject to the
proviso of Section 7.3, waive compliance by the other party with any of the
agreements or conditions contained in this Agreement. Any agreement on the part
of a party to any such extension or waiver shall be valid only if set forth in
an instrument in writing signed on behalf of such party. The failure of any
party to this Agreement to assert any of its rights under this Agreement or
otherwise shall not constitute a waiver of such rights.
SECTION 7.5. PROCEDURE FOR TERMINATION, AMENDMENT, EXTENSION OR WAIVER. A
termination of this Agreement pursuant to Section 7.1, an amendment of this
Agreement pursuant to Section 7.3 or an extension or waiver pursuant to Section
7.4 shall, in order to be effective, require, in the case of MoneyZone or Sutton
Online, action by its Board of Directors or, with respect to any amendment to
this Agreement, the duly authorized committee of its Board of Directors to the
extent permitted by law.
ARTICLE VIII
GENERAL PROVISIONS
SECTION 8.1. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. Each of the
representations and warranties in this Agreement or in any instrument delivered
pursuant to this Agreement shall survive the Effective Time. In addition, this
Section 8.1 shall not limit any covenant or agreement of the parties which by
its terms contemplates performance after the Effective Time.
SECTION 8.2. NOTICES. All notices, requests, claims, demands and other
communications under this Agreement shall be in writing and shall be deemed
given if delivered personally, telecopied (which is confirmed) or sent by
overnight courier (providing proof of delivery) to the parties at the following
addresses (or at such other address for a party as shall be specified by like
notice):
(a) if to MoneyZone or MergerSub, to
MoneyZone.com
6000 Fairview Road
Suite 1400
Charlotte, North Carolina
Attention: Martin A. Sumichrast
with a copy to:
Berlack, Israels & Liberman LLP
120 West 45th Street
New York, NY 10036
Attention: Steven Wasserman, Esq.
25
(b) if to Sutton Online, to
Sutton Online, Inc.
575 Underhill Boulevard
Syosset, New York 11791
Attention: Jonathan D. Siegel
SECTION 8.3. DEFINITIONS. For purposes of this Agreement:
(a) except for purposes of Section 5.11, an "affiliate" of any person
means another person that directly or indirectly, through one or more
intermediaries, controls, is controlled by, or is under common control with,
such first person, where "control" means the possession, directly or indirectly,
of the power to direct or cause the direction of the management policies of a
person, whether through the ownership of voting securities, by contract, as
trustee or executor, or otherwise;
(b) "material adverse change" or "material adverse effect" means,
when used in connection with Sutton Online or MoneyZone, any change, effect,
event, occurrence or state of facts that is, or would reasonably be expected to
be, materially adverse to the business, financial condition or results of
operations of such party and its subsidiaries taken as a whole; and the terms
"material" and "materially" have correlative meanings;
(c) "person" means an individual, corporation, partnership, limited
liability company, joint venture, association, trust, unincorporated
organization or other entity;
(d) a "subsidiary" of any person means another person, an amount of
the voting securities, other voting ownership or voting partnership interests of
which is sufficient to elect at least a majority of its Board of Directors or
other governing body (or, if there are no such voting interests, 50% or more of
the equity interests of which) is owned directly or indirectly by such first
person; provided however, that with respect to MoneyZone, such term shall not
include Sutton Online; and
(e) "knowledge" of any person which is not an individual means the
knowledge of such person's executive officers or senior management of such
person's operating divisions and segments, in each case after reasonable
inquiry.
SECTION 8.4. INTERPRETATION. When a reference is made in this Agreement to an
Article, Section or Exhibit, such reference shall be to an Article or Section
of, or an Exhibit to, this Agreement unless otherwise indicated. The table of
contents and headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
26
Agreement. Whenever the words "include", "includes" or "including" are used in
this Agreement, they shall be deemed to be followed by the words "without
limitation". The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement. All terms defined in this
Agreement shall have the defined meanings when used in any certificate or other
document made or delivered pursuant hereto unless otherwise defined therein. The
definitions contained in this Agreement are applicable to the singular as well
as the plural forms of such terms and to the masculine as well as to the
feminine and neuter genders of such term. Any agreement, instrument or statute
defined or referred to herein or in any agreement or instrument that is referred
to herein means such agreement, instrument or statute as from time to time
amended, modified or supplemented, including (in the case of agreements or
instruments) by waiver or consent and (in the case of statutes) by succession of
comparable successor statutes and references to all attachments thereto and
instruments incorporated therein. References to a person are also to its
permitted successors and assigns.
SECTION 8.5. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other parties.
SECTION 8.6. ENTIRE AGREEMENT; NO THIRD-PARTY BENEFICIARIES. This Agreement
(including the documents and instruments referred to herein) and the
Confidentiality Agreement (a) constitute the entire agreement, and supersede all
prior agreements and understandings, both written and oral, between the parties
with respect to the subject matter of this Agreement and (b) except for the
provisions of Article II, Section 5.6 and Section 5.8, are not intended to
confer upon any person other than the parties any rights or remedies.
SECTION 8.7. GOVERNING LAW. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Delaware, regardless of the laws
that might otherwise govern under applicable principles of conflict of laws
thereof.
SECTION 8.8. ASSIGNMENT. Neither this Agreement nor any of the rights,
interests or obligations under this Agreement shall be assigned, in whole or in
part, by operation of law or otherwise by either of the parties hereto without
the prior written consent of the other party. Any assignment in violation of the
preceding sentence shall be void. Subject to the preceding two sentences, this
Agreement will be binding upon, inure to the benefit of, and be enforceable by,
the parties and their respective successors and assigns.
SECTION 8.9. HEADINGS. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
27
SECTION 8.10. 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. 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 to the fullest extent
permitted by applicable law in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the extent possible.
28
IN WITNESS WHEREOF, MoneyZone, MergerSub and Sutton Online have caused
this Agreement to be signed by their respective officers thereunto duly
authorized, all as of the date first written above.
MONEYZONE.COM
By: /s/ RANDALL GREENE
-------------------------------------
Name: Randall Greene
Title: President
SUTTON MERGER CORP.
By: /s/ RANDALL GREENE
-------------------------------------
Name: Randall Greene
Title: President
SUTTON ONLINE, INC.
By: /s/ JONATHAN D. SEIGEL
-------------------------------------
Name: Jonathan D. Siegel
Title: Chief Executive Officer
29