CLICKNSETTLE.COM, INC.
1010 Northern Boulevard
Great Neck, NY 11021
July 9, 2001
CONFIDENTIAL
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Dr. Kenneth Sun
President
E-Vue, Inc
33 Wood Ave. South, 2/F
Iselin, NJ 08830
Re: Proposed Merger between E-Vue, Inc. and clickNsettle.com, Inc.
Dear Dr. Sun:
Pursuant to our recent discussions, clickNsettle.com, Inc., a
publicly-traded Delaware corporation ("CLIK"), is pleased to deliver this letter
of intent ("LOI") which sets forth the preliminary terms and conditions of the
proposed merger transaction (the "Transaction") between CLIK and E-Vue, Inc., a
Delaware corporation (herein referred to as "E-Vue" and collectively with CLIK,
the "Parties"). For purposes of this letter of intent, any references to "we",
"our" or "us" are references to CLIK, and any references to "you" are references
to E-Vue.
It is currently contemplated that the Transaction will consist of a
merger of E-Vue with a newly-formed subsidiary of CLIK whereby E-Vue will become
a wholly-owned subsidiary of CLIK. In connection with the Transaction, the
shareholders of E-Vue will exchange their equity interests in E-Vue for Common
Stock and Preferred Stock of CLIK. The Preferred Stock of CLIK to be issued in
the Transaction will be convertible into Common Stock of CLIK commencing six
months after the closing of the Transaction, and will have certain other rights
and preferences to be negotiated by the parties. The terms of the Transaction
and other transactions contemplated in connection therewith which are set forth
herein are based upon our preliminary and limited review of certain information
provided to us by you concerning the business, assets, operations, condition and
prospects of E-Vue. Therefore, we reserve the right to modify the tax, legal
and/or accounting structure of the Transaction and surviving corporation(s) and
any another relevant terms contained herein based upon the results of our due
diligence investigation.
1. Agreement.
The terms and provisions of the Transaction shall be described in one
or more definitive agreements and plans of merger (the "Merger Agreement") by
and between the Parties which shall contain the terms and conditions set forth
in this LOI, as modified and amended by subsequent negotiations of the Parties,
and such representations and warranties, covenants, indemnities and conditions
that are usual and customary in a merger of this kind.
2. Interim Period Activities by E-Vue.
Within 90 days from the date of this LOI, E-Vue may not enter any
agreement with any third party to sell or merge itself.
3. Interim Period Activities by CLIK.
E-Vue acknowledges that, prior to the closing of the Merger Agreement
(the "Closing"), CLIK may enter into the following agreements and take the
following actions:
(a) CLIK may use up to $500,000 of its cash and/or other
working capital, as well as CLIK securities, to purchase certain assets
of a competing dispute resolution business ("Competing Dispute
Business", and together with CLIK's existing business, the "Dispute
Business"), and may sell all or part of the assets of the Dispute
Business (whether or not the Competing Dispute Business is purchased by
CLIK).
(b) In connection with its purchase of the Competing Dispute
Business, CLIK may enter into an employment agreement with the
Executive Vice President of the Competing Dispute Business and issue
options pursuant to CLIK's employee stock option plan ("Option Plan")
as part of such employment agreement.
(c) CLIK may take all necessary actions to amend its
Certificate of Incorporation to effect a reverse stock split of its
issued capital stock and any instruments convertible into such capital
stock.
(d) Subject to Section 7, within 90 days from the date of this
LOI, CLIK may not enter any agreement with any third party to sell or
merge itself; provided, however, that nothing herein shall prevent CLIK
or CLIK's Board of Directors from (i) furnishing non-public information
to, or entering into discussions or negotiations with, any person or
entity in connection with an acquisition proposal which such person or
entity is considering making for all or a portion of CLIK's business,
and (ii) entering into an agreement with respect to a sale transaction
relating to some or all of CLIK'S business negotiated with such person
or entity, if, in the case of this clause (ii), CLIK'S Board of
Directors reasonably believes in good faith, after consultation with
its financial, legal and
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other advisers, that such action is required to comply with its duties
to holders of CLIK's Common Stock imposed by applicable law.
4. Capitalization
(a) Ownership. At the Closing, the capitalization of the
public entity which shall exist upon closing of the Transaction (the
"Public Entity"), shall be as follows: Subject to adjustment as
provided in the last sentence of this paragraph (a), the shareholders
of E-Vue (including all holders of E-Vue preferred stock and holders of
warrants, options and any other securities or rights to purchase E-Vue
capital stock) shall receive as a result of the Transaction 19% of the
common stock of the Public Entity and will also receive preferred stock
of the Public Entity that will be convertible, on a share-for-share
basis, into 56% of the common stock of the Public Entity. The
percentages set forth in this paragraph (a) are based on CLIK's total
outstanding common shares and (b) those outstanding options and
warrants which are exercisable for $1.50 or less on the date of the
Closing of the Transaction. Pursuant to 3 (c) above, if CLIK effects a
1-for-3 or 1-for-4 reverse stock split before the Closing of the
Transaction, only those options and warrants which have a $1.50
exercise price post-reverse stock split will be included in calculation
of such percentages. It is also understood that there will be certain
rights associated with the preferred stock of the Public Entity issued
to the E-Vue shareholders, which will be negotiated in good faith by
CLIK and E-Vue. It is contemplated that the Public Entity will raise a
minimum of $5 million at not less than a $20 million entity valuation.
In the event that less than $5 million in financing is secured, the
ownership by CLIK shareholders will be adjusted upward to 30% on a
pre-money basis. Such adjustment will be effected by the surrender for
cancellation of shares of the Public Entity that were issued to the
E-Vue shareholders in connection with the Transaction, which surrender
will be effected on a pro rata basis by the holders of E-Vue common
stock and options and warrants to purchase E-Vue common stock,
determined in accordance with the total number of shares of Public
Entity common stock and preferred stock which such holders receive in
the Transaction. Any financing conducted by the Public Entity as
contemplated above, whether for $5 million or less, must be effected at
a valuation of not less than $20 million.
(b) Stock Options and Warrants.
(i) Of E-Vue. All existing E-Vue options and warrants of
E-Vue shall be converted to options and warrants of
the Public Entity's common stock; provided that the
number of shares of the Public Entity subject to such
options and warrants shall be included in determining
the percentage of stock owned by E-Vue shareholders
set forth in Section 4(a) above .
(ii) Of CLIK.
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(A) Existing warrants and consultant options of CLIK
as of the Closing shall remain in place after the
Transaction, with no additional options or warrants
being issued from the time that the LOI is executed.
(B) Employee stock options in CLIK issued and
outstanding as of the Closing pursuant to its Option
Plan shall remain in place after the Transaction. The
Public Entity shall be restricted from increasing the
number of shares eligible for grant under its Option
Plan for a one year period after the Closing.
(C) In the event of a reverse stock split as provided
for in Section 3(c) above, all existing CLIK options,
as well as the total amount of shares in the CLIK
Option Plan, will be reduced in accordance with such
reverse stock split.
(D) Except as otherwise provided in this LOI, CLIK
will not issue any additional options or warrants
following the date of execution of this LOI without
the consent of E-Vue until the earlier of termination
of this LOI or the execution of the Merger Agreement.
5. Post Closing Operation of Dispute Business.
In the event the Dispute Business is not sold prior to the Closing of
the Transaction, CLIK currently estimates that, assuming Closing of the
Transaction by no later than September 30, 2001, it will have approximately
$1,500,000 of cash and cash equivalents as of the date of Closing (which gives
effect to the use of $500,000 of cash to pay for the Competing Dispute Business)
less any costs and expenses, incurred by CLIK in connection with the
Transaction, including without limitation fees and expenses of attorneys,
accountants, appraisers, bankers and other third parties, costs and expenses
related to the structuring of the Transaction, the preparation and negotiation
of this LOI and Merger Agreement, preparation of a fairness opinion by an
investment banker, and the conduct of meetings of the board of directors and of
the shareholders of CLIK required to approve the Transaction (the "Transaction
Expenses"). If the Dispute Business is not sold in whole or in part prior to the
Closing, the Parties currently contemplate that, immediately following the
Closing, the assets and liabilities related to the operation of the Dispute
Business, including but not limited to not more than $200,000 in available cash
(the "Advanced Funds"), will be transferred to a new wholly-owned subsidiary of
the Public Entity. The Parties shall work out a mechanism by which the Dispute
Business may have access to additional cash funds (the "Additional Advanced
Funds"). It is contemplated that until the earlier of when the Dispute Business
is sold by the Public Entity or 18 months following the Closing, Mr. Israel will
act as the manager of the Dispute Business, reporting to the new chief executive
officer of the Public Entity and its Board of Directors.
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6. Management, Employees & Director.
Our willingness and desire to conclude the Transaction is conditioned
upon the employment after the Closing by the Public Entity of the management and
employees of CLIK, upon materially the same terms and conditions as they
currently have with CLIK. Therefore, as a condition to the Closing, you agree to
enter into employment agreements with all applicable officers and employees of
CLIK upon materially the same terms and conditions as they currently have with
CLIK with the exception that Mr. Israel will no longer be the CEO of CLIK but
instead will run the wholly- owned dispute resolution subsidiary business.
Additionally, you will cause Mr. Israel and a designee of ISO Investment
Holdings, Inc. ("ISO") (as ISO presently has this right pursuant to an agreement
with CLIK) to remain on the Board of Directors of the Public Entity following
the Closing, and will use your best efforts to cause them to continue as
directors until the earlier of the sale of the Dispute Business or 18 months
following the Closing. In addition, each of the shareholders of E-Vue as of the
Closing will be required, as a condition to Closing, to enter into an agreement
with Mr. Israel pursuant to which they will agree to vote, until the earlier of
18 months following the Closing or the sale of the Dispute Business, all voting
stock of the Public Entity owned by them for the election of Mr. Israel as a
director.
7. Termination
(a) In the event that a Merger Agreement is not entered into
within 90 days after the date hereof, CLIK may, at its option by
written notice to E-Vue, elect not to proceed with the Transaction and
this LOI will be deemed to have terminated as of the date of such
written notice. In such event:
(i) CLIK shall pay E-Vue Transaction Expenses up to a
maximum of $100,000 in cash, within three business days
following the date of termination.
(ii) E-Vue will be entitled a break up fee of
$100,000. Upon execution of this LOI, CLIK shall deposit in
escrow with a third party designated by E-Vue such amount in
cash, which amount shall be released to E-Vue if the
provisions of this Section 7(a) are triggered.
(b) In the event that that a Merger Agreement is not entered
into within 90 days after the date hereof, E-Vue may, at its option by
written notice to CLIK, elect not to proceed with the Transaction and
this LOI will be deemed to have terminated as of the date of such
written notice. In such event:
(i) E-Vue shall pay CLIK Transaction Expenses up to a
maximum of $100,000 in cash, within three business days
following the date of termination.
(ii) CLIK will be entitled a break up fee of
$100,000. Upon execution
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of this LOI, E-Vue shall deposit in escrow with a third party
designated by CLIK such amount in cash, which amount shall be
released to CLIK if the provisions of this Section 7(b) are
triggered.
8. Reimbursement
In the event that the E-Vue subsidiary company of the Public Entity
does not raise a minimum of $2.5 million, the E-Vue subsidiary of the Public
Entity will reimburse the Public Parent company up to a maximum of $100,000 for
Transaction related expenses.
9. Representations; Covenants.
(a) The Parties hereby represent and warrant that the
execution and delivery of this LOI does not, and the consummation of
the transactions contemplated hereby will not, breach, cause a default
under or require the receipt of one or more consents or approvals of
any party to, any existing or proposed contracts, arrangements or
understandings to which he, she or it is a party except as otherwise
provided in this LOI.
(b) In addition to the other conditions to Closing specified
herein and others which are included in the definitive Merger
Agreement, E-Vue acknowledges that the following will be conditions to
CLIK proceeding with the Transaction:
(i) Receipt of a fairness opinion in customary form
and acceptable to the CLIK Board of Directors that the
consideration to be issued to the shareholders of E-Vue in
connection with the Transaction and the other terms of the
Transaction are fair and reasonable to CLIK and its
shareholders from a financial point of view; and
(ii) Approval by an independent committee of the
Board of Directors (if one is appointed), the Board of
Directors and shareholders of CLIK of the Transaction; and
(iii) Receipt of written confirmation from Sarnoff
Corporation ("Sarnoff") that the license and development
agreement between Sarnoff and E-Vue, granting E-Vue exclusive
licenses for certain intellectual property of Sarnoff's, has
not materially changed and that it shall continue in full
force and effect following the Closing. Such agreement and all
subsequent amendments, if any, are to be made available to
CLIK for their independent verification of the agreement's
status.
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(c) In addition to the other conditions to Closing specified
herein and others which are included in the definitive Merger
Agreement, CLIK acknowledges that following will be conditions to E-Vue
proceeding with the Transaction:
(i) Approval by the E-Vue Board of Directors and
shareholders
(ii) CLIK will use its reasonable commercial efforts
to furnish to E-Vue all necessary and appropriate due
diligence information requested by the counsel of E-Vue.
10. Access to the Company; Operation in Ordinary Course.
Following the execution of this LOI and prior to Closing, each Party
will cause or permit representatives of the other Party to have full access to
each Party's management, records and facilities. During such period and except
as otherwise provided in this LOI, each Party will (a) operate only in the
ordinary course of business, (b) maintain the value of its business as a going
concern and preserve its goodwill and its relationships with customers,
suppliers, creditors, contractors and employees, and (c) notify the other Party
of any material adverse change with respect to such Party's condition, business,
assets, operations or prospects.
11. Public Announcements.
Each Party will be entitled to make public announcements concerning the
transaction but not without the prior written consent of the other Party hereto,
which consent will not be unreasonably withheld. Notwithstanding the foregoing,
any of the Parties may at any time make any announcements which are required by
applicable law so long as such Party promptly upon learning of such requirement
notifies the other parties of such requirement and discusses with the other
party in good faith the exact wording of any such announcement.
12. Confidentiality
(a) The Parties recognize that in the course of undertaking
the efforts contemplated by this letter, each of them may have access
to confidential or proprietary information belonging to the other
Party. Subject to the provisions of this letter of intent, each Party
is willing to disclose such information and data to the other Party for
the sole purpose of undertaking the transaction contemplated by this
LOI. Such information and data, which are confidential, will be
collectively referred to herein as "Confidential Information"; and each
Party agrees with respect thereto as follows:
(i) To maintain as strictly confidential and preserve
the confidentiality of all Confidential Information;
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(ii) Not to use any Confidential Information for any
purpose other than the purpose described in this letter; and
this LOI shall not be construed as granting either Party any
licenses under any patents, trade secrets or know-how.
(iii) To limit disclosure of Confidential Information
to employees or representatives of either Party who reasonably
require knowledge thereof to accomplish the Party's
aforementioned purpose ("Permitted Persons"); and to use
either Party's best efforts to assure that all Permitted
Persons to whom any Confidential Information is disclosed
treat and maintain the Confidential Information as strictly
confidential.
(iv) Not disclose to any person (including without
limitation customers or competitors of either Party or its
subsidiaries) either the fact that discussions regarding a
possible transaction are taking place or other facts with
respect to such discussions, including the status thereof,
unless the other Party has given its prior written consent to
such disclosure, and direct its employees, representatives,
agents, accountants, attorneys, etc., having knowledge of the
subject matter of this LOI or any Confidential Information not
to make such disclosure. The term "person," as used herein,
shall be broadly interpreted to include without limitation any
corporation, company, partnership or individual.
(b) The limitations imposed by (a) of this Section 11 will not
prevent either Party from disclosing or using Confidential Information
which belongs to such Party or is (i) already known by the recipient
Party without an obligation of confidentiality, (ii) publicly known or
becomes publicly known through no unauthorized act of the recipient
Party, (iii) rightfully received from a third party, (iv) independently
developed by the recipient Party without the use of the other Party's
Confidential Information, (v) disclosed without similar restrictions to
a third party by the Party owning the Confidential Information, (vi)
approved by the other Party for disclosure or use, or (vii) required to
be disclosed pursuant to a requirement of a governmental agency or law
or the requirement or request of any securities exchange.
(c) The obligations of either Party under this Section 11 will
remain in full force and effect for a period of one year from receipt
of the Confidential Information from the other Party hereunder. Either
Party will be responsible to the other Party for all damages suffered
by the other Party for the disclosure of the Confidential Information
or use of the Confidential Information for any other purpose other than
the above mentioned. Each Party hereto will return all data and
information in its possession to the other Party in the event that the
transaction contemplated herein is not consummated.
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13. Cooperation; Expenses.
The parties will cooperate with each other in order to effect the
transactions contemplated by this letter of intent as promptly as practicable.
Other than as set forth in Section 7, each Party will be responsible for its own
costs and expenses, including without limitation fees and expenses of attorneys,
accountants, appraisers, bankers and other third parties, incurred by such Party
in connection with the Transaction, including without limitation costs and
expenses related to the structuring of the Transaction, the preparation and
negotiation of this LOI and Merger Agreement, preparation of a fairness opinion
by an investment banker, and the conduct of a meeting of the shareholders of
either Party required to approve the Transaction.
14. Non-Binding Nature.
This LOI is a statement of the present intent and understanding of the
Parties with respect to the Transaction contemplated hereby. This LOI is subject
to the fulfillment of all conditions set forth herein and the satisfaction of
all legal prerequisites to the closing of the transaction contemplated herein.
It is expressly understood by the Parties that, except as set forth in the
following sentence, this LOI is not a binding agreement or commitment of any of
the Parties, and that it does not, and will not, give rise to any legally
binding obligation on the part of any of the Parties or the Company.
Notwithstanding the foregoing, this LOI constitutes a binding agreement of the
parties as to all of Sections, 2, 3(d), 7,8,10,11,12,13, 14, 15 and 16 hereof.
This LOI supersedes any prior proposals, letters or other discussions between
the Parties concerning the subject matter hereof, and all such proposals,
letters or other discussions are likewise of no binding effect. Except as
otherwise provided herein, the binding agreements set forth in this LOI may be
amended or modified only by a writing executed by the Parties.
15. Counterparts.
This LOI may be executed in counterparts, each of which will be deemed
an original, but all of which taken together will constitute one and the same
instrument.
16. Governing Law
This LOI will be governed and construed by, and the parties hereto
agree that the Agreement will be governed and construed by, the internal laws of
the State of New York, without reference to its conflict of laws rules.
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17. Brokers.
Except with regard to the Parties' agreement with Atlas Capital
Services, LLC, neither of the Parties hereto is directly or indirectly obligated
to anyone acting as a broker, finder, investment banker or in any other similar
capacity in connection with this LOI, the proposed Merger Agreement or the
transactions contemplated hereby or thereby.
This LOI has been executed on behalf of clickNsettle.com Inc. by its
Vice President thereunto duly authorized. If the foregoing accurately reflects
the understanding of the parties hereto, please so indicate by having both
originals of this LOI executed on behalf of E-Vue, Inc. by an officer thereunto
duly authorized in the space provided below and returning one executed original
to us.
CLICKNSETTLE.COM, INC.
By:
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Name: Patricia Giuliani-Rheaume
Title: Chief Financial Officer
Accepted and Agreed to this _____day of July, 2001:
E-VUE, INC.
By:
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Name:
Title: