\n 12.3 Severability…………………………………………………. 37
\n 12.4 Counterparts…………………………………………………. 37
\n 12.5 Other Remedies……………………………………………….. 37
\n 12.6 Amendment and Waivers…………………………………………. 37
\n 12.7 No Waiver……………………………………………………. 38
\n 12.8 Expenses…………………………………………………….. 38
\n 12.9 Attorneys’ Fees………………………………………………. 38
\n 12.10 Notices…………………………………………………….. 38
\n 12.11 Construction of Agreement…………………………………….. 39
\n 12.12 No Joint Venture…………………………………………….. 39
\n 12.13 Further Assurances…………………………………………… 39
\n 12.14 Absence of Third Party Beneficiary Rights………………………. 40
\n 12.15 Confidentiality……………………………………………… 40
\n 12.16 Entire Agreement…………………………………………….. 40
\n<\/c><\/s><\/table>\nEXHIBITS
\n——–<\/p>\n
Exhibit A Form of Certificate of Merger
\n Exhibit B Form of LLC Merger Agreement
\n Exhibit C Form of Stock Redemption Agreement
\n Exhibit D Form of Escrow Agreement
\n Exhibit E Amended Bylaws
\n Exhibit F Form of NetSelect Investment Representation Letter
\n Exhibit G Form of Opinion of Counsel of NetSelect
\n Exhibit H Form of Restated NetSelect Stockholders’ Agreement
\n Exhibit I Form of Restated RealSelect Agreement
\n Exhibit J Form of Opinion of Counsel of InfoTouch
\n Exhibit K Form of Termination Agreement<\/p>\n
v<\/p>\n
AGREEMENT AND PLAN OF MERGER<\/p>\n
THIS AGREEMENT AND PLAN OF MERGER (the “Agreement”) is entered into as of
\nDecember 31, 1998, by and between NetSelect, Inc., a Delaware corporation
\n(“NetSelect”), and InfoTouch Corporation, a Delaware corporation (“InfoTouch”).<\/p>\n
Recitals<\/p>\n
A. The parties intend that, subject to the terms and conditions
\nhereinafter set forth, NetSelect merge with and into InfoTouch in a statutory
\nmerger (the “Merger”), with InfoTouch to be the Surviving Company in the Merger
\nand renamed “NetSelect, Inc.” (such Surviving Company sometimes referred to
\nherein as the “Surviving Company”) all pursuant to the terms and conditions of
\nthis Agreement and a Certificate of Merger substantially in the form of Exhibit
\nA (the “Certificate of Merger”) and the applicable provisions of the laws of the
\nState of Delaware. Upon the effectiveness of the Merger, all outstanding
\ncapital stock of NetSelect (“NetSelect Stock”) will be converted into capital
\nstock of InfoTouch (“InfoTouch Stock”), and InfoTouch will assume all
\noutstanding options and warrants to purchase shares of capital stock of
\nNetSelect, as provided in this Agreement and the Certificate of Merger.<\/p>\n
B. Subject to the terms and conditions of this Agreement, as soon as
\npracticable after the Effective Time (as such term is defined below), NetSelect,
\nL.L.C., a Delaware limited liability company (“NS LLC”), will merge with and
\ninto the Surviving Company in a statutory merger (the “LLC Merger”), with the
\nSurviving Company as the Surviving Company, all pursuant to the terms and
\nconditions of a Merger Agreement substantially in the form attached hereto as
\nExhibit B (the “LLC Merger Agreement”) and a Certificate of Merger substantially
\nin the form attached to the LLC Merger Agreement (the “LLC Certificate of
\nMerger”) and the applicable provisions of the laws of the State of Delaware.<\/p>\n
C. Pursuant to the terms and conditions of this Agreement and the Stock
\nRedemption Agreement, substantially in the form attached hereto as Exhibit C
\n(the “Stock Redemption Agreement”), InfoTouch has agreed as soon as practicable
\nafter the Effective Time to repurchase, and certain of the holders of InfoTouch
\nStock listed on Exhibit A to the Stock Redemption Agreement (the “Redeeming
\nStockholders”) have agreed to sell certain of their shares of the Surviving
\nCompany Common Stock (the “InfoTouch Stockholder Redemption”).<\/p>\n
D. The Merger is intended to be treated as a tax-free reorganization
\npursuant to the provisions of Section 368(a)(1)(A) of the Internal Revenue Code
\nof 1986, as amended (the “Code”).<\/p>\n
NOW, THEREFORE, the parties hereto hereby agree as follows:<\/p>\n
Agreement<\/p>\n
1. Plan Of Reorganization<\/p>\n
1.1 The Merger. Subject to the terms and conditions of this
\nAgreement, NetSelect will be merged with and into InfoTouch pursuant to this
\nAgreement and the Certificate of Merger and in accordance with applicable
\nprovisions of the laws of the State of Delaware as follows:<\/p>\n
1.1.1 Conversion of Shares. Each share of Class A Common Stock,
\npar value $0.001 per share, of NetSelect (“NetSelect Class A Common Stock”), and
\neach share of Class B Common Stock, par value $0.001 per share, of NetSelect
\n(“NetSelect Class B Common Stock”)(collectively, the “NetSelect Common Stock”)
\nissued and outstanding immediately prior to the filing of the Certificate of
\nMerger with the Secretary of State of Delaware (with the time of such filing
\nbeing referred to herein as, the “Effective Time”) other than shares, if any,
\nfor which appraisal rights have been or will be perfected in compliance with
\napplicable law, will by virtue of the Merger and at the Effective Time, and
\nwithout further action on the part of any holder thereof, be converted into the
\nright to receive one fully paid and nonassessable share of Common Stock, par
\nvalue $0.001 per share, of InfoTouch (the “Surviving Company Common Stock”). All
\nshares of any class of capital stock held by NetSelect as treasury shares shall
\nbe canceled, and all shares of any class of capital stock of NetSelect held by
\nInfoTouch shall be canceled.<\/p>\n
Each share of NetSelect Series A Convertible Preferred Stock ($0.001 par
\nvalue per share), Series B Convertible Preferred Stock ($0.001 par value per
\nshare), Series C Convertible Preferred Stock ($0.001 par value per share),
\nSeries D Convertible Preferred Stock ($0.001 par value per share), Series E
\nConvertible Preferred Stock ($0.001 par value per share) and Series F Preferred
\nStock Convertible Preferred Stock ($0.001 par value per share) (collectively,
\n“NetSelect Preferred Stock”) that is issued and outstanding immediately prior to
\nthe filing of the Certificate of Merger with the Secretary of State of Delaware,
\nother than shares, if any, for which appraisal rights have been or will be
\nperfected in compliance with applicable law, will, by virtue of the Merger and
\nat the Effective Time and without further action on the part of any holder
\nthereof, be converted into and represent the right to receive a fully paid and
\nnonassessable share of the corresponding Series A Convertible Preferred Stock
\n($0.001 par value per share), Series B Convertible Preferred Stock ($0.001 par
\nvalue per share), Series C Convertible Preferred Stock ($0.001 par value per
\nshare), Series D Convertible Preferred Stock ($0.001 par value per share),
\nSeries E Convertible Preferred Stock ($0.001 par value per share) or Series F
\nConvertible Preferred Stock ($0.001 par value per share), of the Surviving
\nCompany (“Surviving Company Preferred Stock”), as the case may be.<\/p>\n
2<\/p>\n
1.1.2 Adjustments for Capital Changes. Except for the Reverse
\nStock Split (as defined in Section 4.15 hereof), if before the Effective Time
\nInfoTouch or NetSelect recapitalizes through a split-up of its outstanding
\nshares into a greater number, or a combination of its outstanding shares into a
\nlesser number, reorganizes, reclassifies or otherwise changes its outstanding
\nshares into the same or a different number of shares of other classes (other
\nthan through a split-up or combination of shares provided for in the previous
\nclause), or declares a dividend on its outstanding shares payable in shares or
\nsecurities convertible into shares, then the number of shares of Surviving
\nCompany Common Stock and\/or Surviving Company Preferred Stock into which the
\nshares of NetSelect Stock are to be converted will be adjusted appropriately so
\nas to maintain the proportionate interests of the holders of shares of InfoTouch
\nStock and the holders of shares of NetSelect Stock (based on the Applicable
\nMultiple).<\/p>\n
1.1.3 Dissenting Shares. Holders of shares of NetSelect Stock
\n(“NetSelect Stockholders”) and holders of shares of InfoTouch Stock who have
\ncomplied with all requirements for perfecting stockholders’ rights of appraisal,
\nas set forth in Section 262 of the Delaware General Corporation Law (“Delaware
\nLaw”), shall be entitled to their rights under the Delaware Law with respect to
\nsuch shares (“Dissenting Shares”).<\/p>\n
1.2 Fractional Shares. No fractional shares of Surviving Company
\nCommon Stock and\/or Surviving Company Preferred Stock will be issued in
\nconnection with the Merger.<\/p>\n
1.3 NetSelect Options. At the Effective Time, each holder of an
\noutstanding option to purchase NetSelect Common Stock granted by NetSelect (the
\n“NetSelect Options”), including under the NetSelect 1996 Stock Incentive Plan,
\nas amended, and the NetSelect 1999 Equity Incentive Plan (the “NetSelect
\nPlans”), shall be entitled, in accordance with the terms of such option, to
\npurchase after the Effective Time the same number of shares of Surviving Company
\nCommon Stock as could be purchased under each such NetSelect Option immediately
\nprior to the Effective Time, the exercise price per share for each such option
\nwill equal the exercise price of the NetSelect Option immediately prior to the
\nEffective Time, and such NetSelect Options will be assumed by the Surviving
\nCompany. If the foregoing calculation results in an assumed option being
\nexercisable for a fraction of a share, then the number of shares of Surviving
\nCompany Common Stock subject to such option will be rounded down to the nearest
\nwhole number, with no cash being payable for such fractional share. The term,
\nexercisability, vesting schedule, status as an “incentive stock option” under
\nSection 422A of the Code, if applicable, and all other terms of the NetSelect
\nOptions will otherwise be unchanged. Continuous employment with NetSelect or
\nRealSelect, Inc., a Delaware corporation (“RealSelect”), will be credited to an
\noptionee for purposes of determining the number of shares subject to exercise
\nafter the Effective Time.<\/p>\n
3<\/p>\n
1.4 NetSelect Warrants. At the Effective Time, each of the then
\noutstanding warrants, exchangeable or convertible securities or other rights or
\nagreements to purchase or otherwise acquire any NetSelect equity securities
\n(“NetSelect Warrants”) shall by virtue of the Merger, and without any further
\naction on the part of any holder thereof, be assumed by InfoTouch and converted
\ninto a warrant or like security or agreement (“Surviving Company Warrants”) to
\npurchase the same number of shares of Surviving Company Common Stock and\/or
\nSurviving Preferred Stock or other equity security, as the case may be, as is
\nreflected in the NetSelect Warrant immediately prior to the Effective Time, and
\nInfoTouch shall assume all of the obligations of the NetSelect under such
\nNetSelect Warrants. If the foregoing calculation results in a Surviving Company
\nWarrant being exercisable for a fraction of a share of Surviving Company Common
\nStock and\/or Surviving Company Preferred Stock or other equity security, as the
\ncase may be, then the number of shares of Surviving Company Common Stock and\/or
\nSurviving Company Preferred Stock, as the case may be, subject to such Warrant
\nshall be rounded down to the nearest whole number of shares of Surviving Company
\nCommon Stock and\/or Surviving Company Preferred Stock, as applicable. The
\nexercise price of each Surviving Company Warrant shall be equal to the exercise
\nprice of the NetSelect Warrant immediately prior to the Effective Time. The
\nexercisability period and other terms and conditions of the NetSelect Warrants
\nwill be unchanged.<\/p>\n
1.5 Escrow Agreement. At the Effective Time, InfoTouch will have
\nauthorized and reserved two hundred thousand (200,000) shares of Surviving
\nCompany Common Stock (the “Escrow Shares”) until the end of the Escrow Period
\n(defined below) as security for performance of the InfoTouch indemnification
\nobligations under Section 10 hereof and pursuant to the provisions of an escrow
\nagreement in substantially the form of attached hereto as Exhibit D (the “Escrow
\nAgreement”). A record of the authorized and reserved Escrow Shares will made in
\nthe form of a written ledger or other record, to be held and maintained by
\nJoseph Shew (the “Escrow Agent”), as escrow agent under the Escrow Agreement.
\nThe Escrow Shares for each NetSelect Stockholder will not be considered issued
\nor outstanding, no dividends or other distributions will be declared and\/or paid
\non any Escrow Shares and such shares will have no voting rights until such time
\nas they are released from escrow and issued to the holder. The Escrow Shares
\nwhich are not subject to any unresolved Claims (as defined under the Escrow
\nAgreement) and which remain unissued as of the earlier of (i) the closing of a
\nunderwritten registered public offering of shares of Surviving Company Common
\nStock under the Securities Act of 1933, as amended (the “Securities Act”), or
\n(ii) the earlier of (x) date upon which the Surviving Company’s auditors deliver
\nto the Surviving Company the audited consolidated financial statements of the
\nSurviving Company for the 1998 fiscal year or (y) June 30, 1999 (the “Escrow
\nPeriod”), will be released from escrow, and thereafter returned to the status of
\nauthorized and unreserved Surviving Company Common Stock. To the extent that
\nClaims (as defined in the Escrow Agreement) are resolved in favor of the
\nNetSelect Stockholders, then the appropriate number of Escrow Shares shall be
\nreleased from escrow and issued in the form of one or more certificates and
\ndelivered pro rata to each NetSelect Stockholder (based upon the number of
\nshares of Surviving Company Common Stock and Preferred Stock received by such
\nholder in the <\/p>\n
4<\/p>\n
Merger) in accordance with the terms of the Escrow Agreement. If the Merger is
\napproved by the NetSelect Stockholders as provided herein, the NetSelect
\nStockholders shall, without any further act of any NetSelect Stockholder, be
\ndeemed to have consented to and approved (i) the use of the Escrow Shares as
\ncollateral for the InfoTouch indemnification obligations under Section 10 hereof
\nin the manner set forth in the Escrow Agreement, (ii) the appointment of John
\nGiesecke as the representative of the NetSelect Stockholders (the “N\/S
\nRepresentative”) under the Escrow Agreement and as the attorney-in-fact and
\nagent for and on behalf of the NetSelect Stockholders (other than holders of
\nDissenting Shares), and the taking by the N\/S Representative of any and all
\nactions and the making of any decisions required or permitted to be taken by him
\nunder the Escrow Agreement (including, without limitation, the exercise of the
\npower to: authorize delivery to the NetSelect Stockholders of the Escrow Shares
\nin satisfaction of Claims; agree to, negotiate, enter into settlements and
\ncompromises of and demand arbitration and comply with orders of courts and
\nawards of arbitrators with respect to such claims; resolve any claim made
\npursuant to Section 10 hereof; and take all actions necessary in the judgment of
\nthe N\/S Representative for the accomplishment of the foregoing), and (iii) to
\nall of the other terms, conditions and limitations in the Escrow Agreement. If
\nthe Merger is approved by the InfoTouch Stockholders as provided herein, the
\nInfoTouch Stockholders shall, without any further act of any InfoTouch
\nStockholder, be deemed to have consented to and approved (i) the use of the
\nEscrow Shares as collateral for the InfoTouch indemnification obligations under
\nSection 10 hereof in the manner set forth in the Escrow Agreement, (ii) the
\nappointment of Richard Janssen, as the representative of the InfoTouch
\nStockholders (the “I\/T Representative”) under the Escrow Agreement and as the
\nattorney-in-fact and agent for and on behalf of the InfoTouch Stockholders
\n(other than holders of Dissenting Shares), and the taking by the I\/T
\nRepresentative of any and all actions and the making of any decisions required
\nor permitted to be taken by him under the Escrow Agreement (including, without
\nlimitation, the exercise of the power to: authorize delivery to the NetSelect
\nStockholders of the Escrow Shares in satisfaction of Claims; agree to,
\nnegotiate, enter into settlements and compromises of and demand arbitration and
\ncomply with orders of courts and awards of arbitrators with respect to such
\nclaims; resolve any claim made pursuant to Section 10 hereof; and take all
\nactions necessary in the judgment of the I\/T Representative for the
\naccomplishment of the foregoing), and (iii) to all of the other terms,
\nconditions and limitations in the Escrow Agreement. Any securities received by
\nthe Escrow Agent in respect of any Escrow Shares held in escrow as a result of
\nany change of Surviving Company Common Stock into any other securities pursuant
\nto or as a part of a merger, consolidation, acquisition of property or stock,
\nseparation, reorganization or liquidation of the Surviving Company, or
\notherwise, shall be held by the Escrow Agent as, and shall be included within
\nthe definition of, Escrow Shares.<\/p>\n
1.6 Effects of the Merger. At the Effective Time: (a) the separate
\nexistence of NetSelect will cease and NetSelect will be merged with and into
\nInfoTouch, and InfoTouch will be the Surviving Company, pursuant to the terms of
\nthe Certificate of Merger and Delaware Law, (b) the Certificate of Incorporation
\nand Bylaws of the Surviving Company will be the Amended and Restated Certificate
\nof <\/p>\n
5<\/p>\n
Incorporation attached as Attachment 1 to the Certificate of Merger, and the
\n ————
\nAmended Bylaws substantially in the form attached hereto as Exhibit E (the
\n“Amended Bylaws”), of the Surviving Company, (c) each share of InfoTouch Common
\nStock and each InfoTouch Option outstanding immediately prior to the Effective
\nTime will be unchanged and be an identical outstanding share or option (as the
\ncase may be) of the Surviving Company, (d) the Board of Directors and officers
\nof the Surviving Company will consist of the persons who were officers and
\ndirectors of NetSelect immediately prior to the Effective Time of the Merger,
\n(e) each share of NetSelect Stock, and each NetSelect Option and NetSelect
\nWarrant outstanding immediately prior to the Effective Time, will be converted
\nand\/or assumed (as the case may be) as provided in Sections 1.1, 1.2, 1.3 and
\n1.4, (f) the Surviving Company will assume the NetSelect 1999 Equity Incentive
\nPlan, and (g) the Merger will, from and after the Effective Time, have all of
\nthe effects provided by applicable law.<\/p>\n
1.7 Further Assurances. The parties agree that if, at any time before or
\nafter the Effective Time, if either party reasonably considers or is advised
\nthat any further deeds, assignments or assurances are reasonably necessary or
\ndesirable to vest, perfect or confirm in InfoTouch title to any property or
\nrights of NetSelect, each party and its proper officers and directors may
\nexecute and deliver all such proper deeds, assignments and assurances and do all
\nother things necessary or desirable to vest, perfect or confirm title to such
\nproperty or rights in InfoTouch and otherwise to carry out the purposes of this
\nAgreement.<\/p>\n
1.8 Information Statement. As promptly as practicable after the date of
\nthis Agreement, NetSelect and InfoTouch shall prepare a joint information
\nstatement (the “Information Statement”) to be provided to the NetSelect
\nStockholders and the InfoTouch Stockholders in connection with soliciting the
\napproval of the Merger and the Merger Agreement by such stockholders. Each
\nparty hereto shall furnish all information concerning such party and its
\nstockholders as may be reasonably requested in connection with preparing and
\ndistributing the Information Statement.<\/p>\n
1.9 Tax Free Reorganization. The parties intend to adopt this Agreement
\nas a tax-free plan of reorganization and to consummate the Merger in accordance
\nwith the provisions of Section 368(a)(1)(A) of the Code. The parties believe
\nthat the value of the Surviving Company Common Stock and\/or Surviving Company
\nPreferred Stock to be received in the Merger is equal, in each instance, to the
\nvalue of the NetSelect Stock to be surrendered in exchange therefor. Except for
\ncash paid in lieu of fractional shares or for Dissenting Shares and cash paid
\nunder the InfoTouch Stockholder Redemption, no consideration that could
\nconstitute “other property” within the meaning of Section 356 of the Code is
\nbeing paid by InfoTouch for the NetSelect Stock in the Merger. The parties shall
\nnot take a position on any tax returns inconsistent with this Section. In
\naddition, InfoTouch represents now, and as of the Closing Date (as defined in
\nSection 6.1 hereof), that it presently intends to continue NetSelect’s historic
\nbusiness or use a significant portion of NetSelect’s business assets <\/p>\n
6<\/p>\n
in a business. The provisions and representations contained or referred to in
\nthis Section shall survive until the expiration of the applicable statute of
\nlimitations.<\/p>\n
1.10 Accounting Treatment. The parties intend that the Merger be
\ntreated as a consolidation of related entities for accounting purposes.<\/p>\n
2. Representation and Warranties of InfoTouch<\/p>\n
InfoTouch hereby represents and warrants to NetSelect that (a) as of
\nMay 1, 1997 it had terminated all its of operating activities and that its sole
\nactivity since that time has been to own certain membership interests in NS LLC;
\nand (b) as of September 30, 1998 and immediately before the Closing (as defined
\nin Section 6.1 hereof) the stockholders’ equity of InfoTouch was and will be not
\nless than a negative $80,000 and the total liabilities (including contingent
\nliabilities) of InfoTouch were and will not be greater than $100,000 (excluding
\ncosts and expenses incurred by InfoTouch in connection with the Merger, negative
\ngoodwill reflected on the InfoTouch balance sheet dated as of September 30, 1998
\nand amounts due to RealSelect as of September 30, 1998 as reflected on such
\nbalance sheet), as reflected on the balance sheet of InfoTouch dated as of the
\nClosing. InfoTouch hereby further represents and warrants to NetSelect, except
\nas set forth on the InfoTouch Disclosure Schedule and separately delivered by
\nInfoTouch to NetSelect herewith (the “InfoTouch Disclosure Schedule”), as
\nfollows:<\/p>\n
2.1 Organization and Good Standing. InfoTouch is a corporation duly
\norganized, validly existing and in good standing under the laws of the state of
\nDelaware, has the corporate power and authority to own, operate and lease its
\nproperties and to carry on its business as now conducted and as proposed to be
\nconducted, and is qualified as a foreign corporation in each jurisdiction in
\nwhich a failure to be so qualified could reasonably be expected to have a
\nmaterial adverse effect on its present or expected operations or financial
\ncondition.<\/p>\n
2.2 Power, Authorization and Validity.<\/p>\n
2.2.1 InfoTouch has the right, power, legal capacity and
\nauthority to enter into and perform its obligations under this Agreement, and
\nall agreements contemplated hereby to which InfoTouch is or will be a party or
\nthat it is required to execute pursuant to this Agreement (the “InfoTouch
\nAncillary Agreements”). The execution, delivery and performance of this
\nAgreement and the InfoTouch Ancillary Agreements have been duly and validly
\napproved and authorized by InfoTouch’s Board of Directors.<\/p>\n
2.2.2 No filing, authorization or approval, governmental or
\notherwise, is necessary to enable InfoTouch to enter into, and to perform its
\nobligations under, this Agreement and the InfoTouch Ancillary Agreements, except
\nfor (a) the <\/p>\n
7<\/p>\n
filing of the Certificate of Merger with the Delaware Secretary of State, the
\nrecording of the Certificate of Merger in the office of the Recorder of the
\nDelaware county in which InfoTouch’s registered office is located, and the
\nfiling of appropriate documents with the relevant authorities of other states in
\nwhich InfoTouch is qualified to do business, if any, (b) such filings as may be
\nrequired to comply with federal and state securities laws, and (c) the approval
\nof and adoption by the holders of InfoTouch Stock of the Agreement and all
\ntransaction contemplated by the Agreement, as provided under applicable law, the
\nInfoTouch Certificate of Incorporation, the InfoTouch Bylaws and any other
\ncharter document of InfoTouch (the “InfoTouch Stockholder Approval”), (d) all
\nconsents approvals and filings required to consummate the LLC Merger, and the
\nInfoTouch Stockholder Redemption, (e) the (i) termination, as contemplated by
\nthis Agreement, of that certain InfoTouch Stockholder Agreement dated as of
\nDecember __, 1996, by and among InfoTouch and certain InfoTouch Stockholders
\n(the “InfoTouch Stockholder Agreement”), (ii) the amendment and restatement, as
\ncontemplated by this Agreement, of that certain NetSelect, Inc. Amended and
\nRestated Stockholders’ Agreement, dated as of August 21, 1998, by and among
\nNetSelect and certain NetSelect Stockholders, as amended by that certain
\nAmendment to Amended and Restated NetSelect Stockholders’ Agreement dated
\nOctober 22, 1998 (the “NetSelect Stockholders’ Agreement”), and (iii) the
\namendment and restatement, as contemplated by this Agreement, of that certain
\nRealSelect, Inc. Stockholders’ Agreement, dated as of November 26, 1996, by and
\namong NS LLC, RealSelect, and the National Association of REALTORS(R) (the
\n“NAR”), an Illinois not for profit corporation and the assignee of the interests
\nof the REALTORS(R) Information Network, Inc., an Illinois corporation (“RIN”),
\nas amended by that certain Amendment No. 2 To RealSelect, Inc. Stockholders’
\nAgreement dated as of August 21, 1998, and as amended by that certain Amendment
\nNo. 3 To RealSelect Stockholders’ Agreement dated October 22, 1998 (the
\n“RealSelect Stockholders’ Agreement”) and (f) all consents, approvals and
\nfilings that will be obtained prior to the Effective Time.<\/p>\n
2.2.3 This Agreement and the InfoTouch Ancillary Agreements are, or
\nwhen executed by InfoTouch will be, valid and binding obligations of InfoTouch
\nenforceable in accordance with their respective terms, except as to the effect,
\nif any, of (a) applicable bankruptcy and other similar laws affecting the rights
\nof creditors generally, and (b) rules of law governing specific performance,
\ninjunctive relief and other equitable remedies; provided, however, that the
\nCertificate of Merger will not be effective until filed with the Delaware
\nSecretary of State.<\/p>\n
2.3 Capitalization. As of the date of this Agreement, the authorized
\ncapital stock of InfoTouch consists of 5,000,000 shares of InfoTouch Common
\nStock, of which 4,489,138 shares are issued and outstanding, and 1,000,000
\nshares of Preferred Stock, 400,000 shares of which are designated Series A
\nConvertible Preferred Stock (of which no shares are outstanding), 200,000 shares
\nof which are designated as Series B Convertible Preferred Stock (of which no
\nshares are issued and outstanding), and 400,000 shares of which are undesignated
\nPreferred Stock. An <\/p>\n
8<\/p>\n
aggregate of 1,000,000 shares of InfoTouch Common Stock are reserved and
\nauthorized for issuance pursuant to exercise of options granted pursuant to the
\nInfoTouch 1994 Stock Incentive Plan (“InfoTouch Options”), of which options to
\npurchase a total of 9,000 shares of InfoTouch Common Stock are outstanding. All
\nissued and outstanding shares of InfoTouch Stock, and all granted and
\noutstanding InfoTouch Options, have been duly authorized and validly issued, are
\nfully paid and nonassessable, and are not subject to any right of rescission or
\nredemption (except as provided in the Voting and Recapitalization Agreement
\ndated as of August 21, 1998 by and among NetSelect, InfoTouch and the Selling
\nStockholders (as such term is defined therein), as the same may have been
\namended (the “Voting Agreement”)), and have been offered, issued, sold and
\ndelivered by InfoTouch in compliance with all registration or qualification
\nrequirements (or applicable exemptions therefrom) of applicable federal and
\nstate securities laws. Except for InfoTouch Stock and InfoTouch Options listed
\non the InfoTouch Disclosure Schedule, as of immediately prior to the Effective
\nTime, InfoTouch will have no authorized or outstanding capital stock, options,
\nwarrants, exchangeable or convertible securities or commitments or other rights
\nor agreements to purchase or otherwise acquire any InfoTouch Stock. A list of
\nall holders of InfoTouch Stock and InfoTouch Options, and the number of shares
\nand options held by each such holder, is included on the InfoTouch Disclosure
\nSchedule. Except as set forth in this Section and on the InfoTouch Disclosure
\nSchedule, there are no options, warrants, calls, commitments, conversion
\nprivileges or preemptive or other rights or agreements outstanding to purchase
\nfrom InfoTouch any of InfoTouch’s authorized but unissued capital stock or any
\nsecurities convertible into or exchangeable for shares of InfoTouch Stock or
\nobligating InfoTouch to grant, extend, or enter into any such option, warrant,
\ncall, right, commitment, conversion privilege or other right or agreement, and
\nthere is no liability for dividends accrued but unpaid. Except for the InfoTouch
\nStockholder Agreement and the Voting Agreement, there are no voting agreements,
\nrights of first refusal or other restrictions (other than normal restrictions on
\ntransfer under applicable federal and state securities laws) applicable to any
\nof InfoTouch’s outstanding securities, and InfoTouch is not under any obligation
\nto register under the Securities Act any of its presently outstanding securities
\nor any securities that may be subsequently issued.<\/p>\n
2.4 Subsidiaries. Except for its membership interest in NS LLC,
\nInfoTouch does not have any subsidiaries or hold any interest, direct or
\nindirect, in any corporation, partnership, joint venture or other business
\nentity.<\/p>\n
2.5 No Violation of Existing Agreements. Neither the execution and
\ndelivery of this Agreement nor any InfoTouch Ancillary Agreement, nor the
\nconsummation of the transactions contemplated hereby, will conflict with, or
\n(with or without notice or lapse of time, or both) result in a termination,
\nbreach, impairment or violation of (a) any provision of the Certificate of
\nIncorporation or Bylaws of InfoTouch, as amended and as currently in effect, (b)
\nin any material respect, any instrument or contract to which InfoTouch is a
\nparty or by which it is bound, or (c) any <\/p>\n
9<\/p>\n
federal, state, local or foreign judgment, writ, decree, order, statute, rule or
\nregulation applicable to InfoTouch or its assets or properties. The consummation
\nof the Merger and the LLC Merger (and the transaction contemplated hereby) and
\nthe assumption by InfoTouch of all material rights, licenses, franchises, leases
\nand agreements of NetSelect and NS LLC in connection with the Merger and the LLC
\nMerger will not require the consent of any third party under any instrument or
\ncontract to which InfoTouch is a party or by which it is bound.<\/p>\n
2.6 Litigation. There is no action, proceeding, claim or investigation
\npending against InfoTouch before any court or administrative agency, nor, to the
\nbest of InfoTouch’s knowledge, has any such action, proceeding, claim or
\ninvestigation been threatened. There is, to the best of InfoTouch’s knowledge,
\nno reasonable basis for any stockholder or former stockholder of InfoTouch, or
\nany other person, firm, corporation, or entity, to assert a claim against
\nNetSelect or InfoTouch based upon: (a) ownership or rights to ownership of any
\nshares of InfoTouch Stock, the InfoTouch Options or any other securities of
\nInfoTouch (except for dissenter’s rights with respect to shares of NetSelect
\nStock issuable by virtue of the Merger), (b) any rights as an InfoTouch
\nStockholder, including any option or preemptive rights or rights to notice or to
\nvote, or (c) any rights under any agreement by and between InfoTouch and any of
\nits stockholders.<\/p>\n
2.7 Taxes. InfoTouch has filed all federal, state, local and foreign tax
\nreturns required to be filed, has paid all taxes required to be paid in respect
\nof all periods for which returns have been filed, has established an adequate
\naccrual or reserve for the payment of all taxes payable in respect of the
\nperiods subsequent to the periods covered by the most recent applicable tax
\nreturns, has made all necessary estimated tax payments, and has no liability for
\ntaxes in excess of the amount so paid or accruals or reserves so established.
\nInfoTouch is in no way delinquent in the payment of any tax or delinquent in the
\nfiling of any tax returns, and no deficiencies for any tax have been threatened,
\nclaimed, proposed or assessed. No tax return of InfoTouch has ever been audited
\nby the Internal Revenue Service or any state taxing agency or authority. For the
\npurposes of this Section, the terms “tax” and “taxes” include all federal,
\nstate, local and foreign income, gains, franchise, excise, property, sales, use,
\nemployment, license, payroll, occupation, recording, value added or transfer
\ntaxes, governmental charges, fees, levies or assessments (whether payable
\ndirectly or by withholding), and, with respect to such taxes, any estimated tax,
\ninterest and penalties or additions to tax and interest on such penalties and
\nadditions to tax.<\/p>\n
2.8 InfoTouch Financial Statements. InfoTouch has delivered to NetSelect
\na true and correct copy of InfoTouch’s audited balance sheets dated as of
\nDecember 31, 1996 and 1997, respectively, and its audited statements of
\noperations and of cash flows for the fiscal years ended December 31, 1997, 1996
\nand 1995, respectively, and its interim unaudited balance sheet (the “InfoTouch
\nBalance Sheet”) as of September 30, 1998 (the “InfoTouch Balance Sheet Date”)
\nand an interim unaudited <\/p>\n
10<\/p>\n
statement of operations and of cash flows for the nine months then ended (all of
\nthe foregoing referred to collectively as the “InfoTouch Financial Statements”).
\nThe InfoTouch Financial Statements (a) are in accordance with the books and
\nrecords of InfoTouch, (b) fairly present the financial condition of InfoTouch at
\nthe dates therein indicated and the results of operations for the periods
\ntherein specified and (c) have been prepared in accordance with generally
\naccepted accounting principles applied on a consistent basis. InfoTouch has no
\ndebt, liability or obligation of any nature, whether accrued, absolute,
\ncontingent or otherwise, and whether due or to become due, that is not reflected
\nor reserved against in the InfoTouch Financial Statements, except for those that
\nmay have been incurred after the InfoTouch Balance Sheet Date in the ordinary
\ncourse of its business, consistent with past practice and that are not in excess
\nof $10,000 either individually or collectively.<\/p>\n
2.9 Books and Records. The books, records and accounts of InfoTouch
\n(a) are in all material respects true, complete and correct, (b) have been
\nmaintained in accordance with good business practices on a basis consistent with
\nprior years, (c) are stated in reasonable detail and accurately and fairly
\nreflect the transactions and dispositions of the assets of InfoTouch, and (d)
\naccurately and fairly reflect the basis for the InfoTouch Financial Statements.<\/p>\n
2.10 Title to Properties. InfoTouch has good and marketable title to
\nall of its assets as shown on the Balance Sheet, free and clear of all liens,
\ncharges, restrictions or encumbrances (other than for taxes not yet due and
\npayable). All leases of real or personal property to which InfoTouch is a
\nparty are fully effective and afford InfoTouch peaceful and undisturbed
\npossession of the subject matter of the lease. InfoTouch is in no way in
\nmaterial violation of any zoning, building, safety or environmental ordinance,
\nregulation or requirement or other law or regulation applicable to the operation
\nof owned or leased properties, and has not received any notice of violation with
\nwhich it has not complied.<\/p>\n
2.11 Absence of Certain Changes. Since the InfoTouch Balance Sheet
\nDate, there has not been with respect to InfoTouch:<\/p>\n
(a) any change in the financial condition, properties, assets,
\nliabilities, business or operations thereof, whether or not arising in the
\nordinary course of business, that has had or will have a material adverse effect
\non InfoTouch;<\/p>\n
(b) any contingent liability incurred by InfoTouch as guarantor
\nor otherwise with respect to the obligations of others;<\/p>\n
(c) any mortgage, encumbrance or lien placed on any of the
\nproperties of InfoTouch;<\/p>\n
11<\/p>\n
(d) any obligation or liability incurred by InfoTouch (except as
\nincurred in the ordinary course of InfoTouch’s business);<\/p>\n
(e) any purchase or sale or other disposition, or any agreement
\nor other arrangement for the purchase, sale or other disposition, of any of the
\nproperties or assets of InfoTouch (except for non-material purchases or sales in
\nthe ordinary course of InfoTouch’s business, and except for the acquisition of
\nshares of RealSelect Common Stock held by NS LLC pursuant to the RealSelect
\nStock Transfer Agreement in a form reasonably acceptable to the parties and
\ntheir respective counsel (the “RealSelect Stock Transfer Agreement”);<\/p>\n
(f) any damage, destruction or loss, whether or not covered by
\ninsurance, adversely affecting the properties, assets or business of InfoTouch;<\/p>\n
(g) any declaration, setting aside or payment of any dividend
\non, or the making of any other distribution in respect of, the capital stock of
\nInfoTouch, any split, combination or recapitalization of the capital stock of
\nInfoTouch or any direct or indirect redemption, purchase or other acquisition of
\nthe capital stock of InfoTouch;<\/p>\n
(h) any payment or discharge of a lien or liability of InfoTouch
\nwhich lien or liability was not reflected on the Balance Sheet; or<\/p>\n
(i) any obligation or liability incurred by InfoTouch to any of
\nits officers, directors or stockholders or any loans or advances made by
\nInfoTouch to any of its officers, directors or stockholders.<\/p>\n
2.12 Intellectual Property. InfoTouch owns, or has the right to use,
\nsell or license all Intellectual Property Rights (as defined below) that are
\nnecessary or required for the conduct of its business as presently conducted
\n(such Intellectual Property Rights being referred to as the “InfoTouch IP
\nRights”) and such rights to use, sell or license are sufficient for such conduct
\nof its business. The execution, delivery and performance of this Agreement and
\nthe consummation of the transactions contemplated hereby will not constitute a
\nbreach of any instrument or agreement governing any InfoTouch IP Rights (the
\n“InfoTouch IP Rights Agreements”). There are no royalties, honoraria, fees or
\nother payments payable by InfoTouch to any person by reason of the ownership,
\nuse, license, sale or disposition of the InfoTouch IP Rights. There is no
\npending or, to the best knowledge of InfoTouch, threatened claim or litigation
\ncontesting the validity, ownership or right to use, sell, license or dispose of
\nany InfoTouch IP Rights, nor is there any basis for any such claim, nor has
\nInfoTouch received any notice asserting that any InfoTouch IP Rights or the
\nproposed use, sale, license or disposition thereof conflicts or will conflict
\nwith the rights of any other party. The InfoTouch Disclosure Schedule contains
\na list of all applications, registrations, filings and other formal actions made
\nor taken pursuant to federal, state and foreign laws by InfoTouch to perfect or
\nprotect its interest in InfoTouch IP Rights, including, <\/p>\n
12<\/p>\n
without limitation, all patents, patent applications, trademarks, trademark
\napplications and service marks. As used herein, the term “Intellectual Property
\nRights” shall mean all worldwide industrial and intellectual property rights,
\nincluding, without limitation, patents, patent applications, patent rights,
\ntrademarks, trademark applications, trade names, service marks, service mark
\napplications, copyright, copyright applications, franchises, licenses,
\ninventories, know-how, trade secrets, customer lists, proprietary processes and
\nformulae, all source and object code, algorithms, architecture, structure,
\ndisplay screens, layouts, inventions, development tools and all documentation
\nand media constituting, describing or relating to the above, including, without
\nlimitation, manuals, memoranda and records.<\/p>\n
2.13 Compliance with Laws. InfoTouch has complied, or prior to the
\nClosing Date will have complied, and is or will be at the Closing Date in full
\ncompliance, with all applicable laws, ordinances, regulations, and rules, and
\nall orders, writs, injunctions, awards, judgments, and decrees applicable to it
\nor its assets, properties, and business thereof, including, without limitation:
\n(a) all applicable federal and state securities laws and regulations, (b) to
\nInfoTouch’s knowledge, all applicable federal, state, and local laws,
\nordinances, regulations, and all orders, writs, injunctions, awards, judgments,
\nand decrees pertaining to (i) the sale, licensing, leasing, ownership, or
\nmanagement of its owned, leased or licensed real or personal property, products
\nand technical data, (ii) employment and employment practices, terms and
\nconditions of employment, and wages and hours and (iii) safety, health, fire
\nprevention, environmental protection, toxic waste disposal, building standards,
\nzoning and other similar matters (c) to InfoTouch’s knowledge, the Export
\nAdministration Act, as amended, and regulations promulgated thereunder and all
\nother laws, regulations, rules, orders, writs, injunctions, judgments and
\ndecrees applicable to the export or re-export of controlled commodities or
\ntechnical data and (d) to InfoTouch’s knowledge, the Immigration Reform and
\nControl Act, as amended.<\/p>\n
2.14. Employees, ERISA and Other Compliance.<\/p>\n
2.14.1 InfoTouch has no employees or consultants or independent
\ncontractors, and is not a party to bound by and has no liability under any
\nemployment contracts or consulting agreements (other than agreements with the
\nsole purpose of providing for the confidentiality of proprietary information or
\nassignment of inventions).<\/p>\n
2.14.2 InfoTouch does not have any (i) “employee benefit plan,”
\nas defined in Section 3(3) of the Employee Retirement Income Security Act of
\n1974, as amended (“ERISA”), or (ii) any other written or formal plans or
\nagreements involving direct or indirect compensation or benefits (including any
\nemployment agreements entered into between InfoTouch and any current or former
\nemployee of InfoTouch, but excluding workers’ compensation, unemployment
\ncompensation and other government-mandated programs) currently or previously
\nmaintained, contributed to or entered into <\/p>\n
13<\/p>\n
by InfoTouch or any ERISA Affiliate (as defined below) thereof has any present
\nor future obligation or liability (collectively, the “InfoTouch Employee
\nPlans”). For purposes of this Section 2.14, “ERISA Affiliate” shall mean any
\nentity which is a member of (A) a “controlled group of corporations,” as defined
\nin Section 414(b) of the Code, (B) a group of entities under “common control,”
\nas defined in Section 414(c) of the Code, or (C) an “affiliated service group,”
\nas defined in Section 414(m) of the Code, or treasury regulations promulgated
\nunder Section 414(o) of the Code, any of which includes InfoTouch. InfoTouch or
\nany ERIS Affiliate (or any officer or director thereof) has no present or future
\nobligation or liability under the InfoTouch Employee Plans or any statutes,
\norders, rules and regulations, including, without limitation, ERISA and the
\nCode, which are applicable to such InfoTouch Employee Plans.<\/p>\n
2.14.3 InfoTouch is not a party to or obligated under any
\nemployment, severance, settlement or other similar contract, arrangement or
\npolicy and each plan or arrangement (written or oral) providing for insurance
\ncoverage (including any self-insured arrangements), workers’ benefits, vacation
\nbenefits, severance benefits, disability benefits, death benefits,
\nhospitalization benefits, retirement benefits, deferred compensation, profit-
\nsharing, bonuses, stock options, stock purchase, phantom stock, stock
\nappreciation or other forms of incentive compensation or post-retirement
\ninsurance, compensation or benefits for employees, consultants or directors.<\/p>\n
2.14.4 InfoTouch has complied with all applicable laws,
\nagreements and contracts relating to employment, employment practices, wages,
\nhours, and terms and conditions of employment, including, but not limited to,
\nemployee compensation matters, but not including ERISA. To InfoTouch’s
\nknowledge, no employee or former employee of InfoTouch is in violation of any
\nterm of any employment contract, patent disclosure agreement, noncompetition
\nagreement, or any other contract or agreement, or any restrictive covenant
\nrelating to the right of any such employee to be employed thereby, or to use
\ntrade secrets or proprietary information of others, and the employment of such
\nemployees does not subject InfoTouch to any liability.<\/p>\n
2.14.5 InfoTouch is not a party to or in any way bound by any
\n(a) agreement with any executive officer or director or other key employee
\nthereof or (b) agreement or plan, including, without limitation, any stock
\noption plan, stock appreciation rights plan or stock purchase plan.<\/p>\n
2.15 Corporate Documents. InfoTouch has made available to NetSelect
\nor its counsel for examination all documents and information listed in the
\nInfoTouch Disclosure Schedule or other schedules called for by this Agreement
\nwhich have been requested by NetSelect’s legal counsel, including, without
\nlimitation, the following: (a) copies of InfoTouch’s Certificate of
\nIncorporation and Bylaws as currently in effect; (b) its Minute Book containing
\nall records of all proceedings, consents, actions, and meetings of the
\nstockholders, the board of directors and any committees thereof; (c) its <\/p>\n
14<\/p>\n
stock ledger and journal reflecting all stock issuances and transfers; (d) all
\npermits, orders, and consents issued by any regulatory agency with respect to
\nInfoTouch, or any securities of InfoTouch, and all applications for such
\npermits, orders, and consents, and all material agreements, arrangements or
\nobligations to which InfoTouch is bound or is a party.<\/p>\n
2.16 No Brokers. InfoTouch is not in any way obligated for the payment of
\nfees or expenses of any investment banker, broker or finder in connection with
\nthe origin, negotiation or execution of this Agreement or the Certificate of
\nMerger or in connection with any transaction contemplated hereby or thereby.<\/p>\n
2.17 Disclosure. Neither this Agreement, its exhibits and schedules, nor
\nany of the certificates or documents to be delivered by InfoTouch to NetSelect
\nor its counsel under this Agreement, taken together, contains any untrue
\nstatement of a material fact or omits to state any material fact necessary in
\norder to make the statements contained herein and therein, in light of the
\ncircumstances under which such statements were made, not misleading.<\/p>\n
2.18 Information Supplied. None of the information supplied or to be
\nsupplied by InfoTouch for inclusion in the Information Statement or to holders
\nof its capital stock in connection with obtaining the InfoTouch Stockholder
\nApproval, at the date such information is supplied and at the date of such
\nInformation Statement, contains or will contain any untrue statement of a
\nmaterial fact or omits or will omit to state any material fact required to be
\nstated therein or necessary in order to make the statements therein, in light of
\nthe circumstances under which they are made, not misleading.<\/p>\n
2.19 Contracts and Commitments. Except as contemplated herein, InfoTouch
\nis not a party to or in any way bound by any oral or written contract,
\nobligation or commitment which is material to the business of InfoTouch or which
\ninvolves a potential commitment (after the date hereof) in excess of $10,000 or
\nany stock redemption or purchase agreement, financing agreement, license, lease
\nor franchise, including, but not limited to any:<\/p>\n
(a) contracts providing for payments by or to InfoTouch in an
\naggregate amount of $10,000 or more;<\/p>\n
(b) agreements for the lease of real or personal property;<\/p>\n
(c) joint venture contracts or arrangements or any other agreement
\nthat involves a sharing of profits with other persons;<\/p>\n
(d) instrument evidencing or related in any way to indebtedness for
\nborrowed money by way of direct loan, sale of debt securities, <\/p>\n
15<\/p>\n
purchase money obligation, conditional sale, guarantee, or otherwise, except as
\nis disclosed in the InfoTouch Financial Statements; or<\/p>\n
(e) contracts containing covenants purporting to limit
\nInfoTouch’s freedom to compete in any line of business in any geographic area.<\/p>\n
All agreements, contracts, plans, leases, instruments, arrangements,
\nlicenses and commitments listed in the InfoTouch Disclosure Schedule are valid
\nand in full force and effect. InfoTouch is in no way, nor to the knowledge of
\nInfoTouch, is any other party thereto, in breach or default in any material
\nrespect under the terms of any such agreement, contract, plan, lease,
\ninstrument, arrangement, license or commitment set forth on the InfoTouch
\nDisclosure Schedule.<\/p>\n
2.20 Insurance. InfoTouch maintains and at all times during the prior
\nthree years has maintained insurance which it believes to be reasonably prudent
\nfor similarly sized and similarly situated businesses.<\/p>\n
2.21 Environmental Matters.<\/p>\n
2.21.1 During the period that InfoTouch has leased or owned its
\nproperties or owned or operated any facilities, there have been no disposals,
\nreleases or threatened releases of Hazardous Materials (as defined below) on,
\nfrom or under such properties or facilities. InfoTouch has no knowledge of any
\npresence, disposals, releases or threatened releases of Hazardous Materials on,
\nfrom or under any of such properties or facilities, which may have occurred
\nprior to InfoTouch having taken possession of any of such properties or
\nfacilities. For the purposes of this Agreement, the terms “disposal,” “release,”
\nand “threatened release” shall have the definitions assigned thereto by the
\nComprehensive Environmental Response, Compensation and Liability Act of 1980, 42
\nU.S.C. (S) 9601 et seq., as amended (“CERCLA”). For the purposes of this
\nAgreement “Hazardous Materials” shall mean any hazardous or toxic substance,
\nmaterial or waste which is or becomes prior to the Closing regulated under, or
\ndefined as a “hazardous substance,” “pollutant,” “contaminant,” “toxic
\nchemical,” “hazardous materials,” “toxic substance” or “hazardous chemical”
\nunder (1) CERCLA; (2) any similar federal, state or local law; or (3)
\nregulations promulgated under any of the above laws or statutes.<\/p>\n
2.21.2 To InfoTouch’s knowledge, none of the properties or
\nfacilities of InfoTouch is in violation of any federal, state or local law,
\nordinance, regulation or order relating to industrial hygiene or to the
\nenvironmental conditions on, under or about such properties or facilities,
\nincluding, but not limited to, soil and ground water condition.<\/p>\n
2.22 Interested Party Transactions. Except for the InfoTouch Stockholder
\nAgreement and the Voting Agreement, no officer or director of InfoTouch or any
\n“affiliate” or “associate” (as those terms are defined in Rule 405 promulgated
\nunder <\/p>\n
16<\/p>\n
the Securities Act) of any such person has had, either directly or indirectly, a
\nmaterial interest in: (i) any person or entity which purchases from or sells,
\nlicenses or furnishes to InfoTouch any goods, property, technology or
\nintellectual or other property rights or services; or (ii) any contract or
\nagreement to which InfoTouch is a party or by which it may be bound or affected.<\/p>\n
3. Representations and warranties of NetSelect<\/p>\n
NetSelect, Inc. as a separate corporate entity, hereby represents and
\nwarrants to the InfoTouch (only with respect to NetSelect, Inc. as a separate
\ncorporate entity, and not with respect to any subsidiary of NetSelect, including
\nwithout limitation NS LLC or RealSelect, Inc.), except as set forth on the
\nNetSelect Disclosure Schedule separately delivered to InfoTouch by NetSelect
\nherewith (the “NetSelect Disclosure Schedule”), as follows:<\/p>\n
3.1 Organization and Good Standing. NetSelect is a corporation duly
\norganized, validly existing and in good standing under the laws of the State of
\nDelaware, and has the corporate power and authority to own, operate and lease
\nits properties and to carry on its business as now conducted and as proposed to
\nbe conducted and is qualified as a foreign corporation in each jurisdiction in
\nwhich a failure to be so qualified could reasonably be expected to have a
\nmaterial adverse effect on its present or expected operations or financial
\ncondition.<\/p>\n
3.2 Power, Authorization and Validity.<\/p>\n
3.2.1 NetSelect has the right, power, legal capacity and
\nauthority to enter into and perform its obligations under this Agreement, and
\nall agreements contemplated hereby to which NetSelect is or will be a party that
\nare required to be executed pursuant to this Agreement (the “NetSelect Ancillary
\nAgreements”). The execution, delivery and performance of this Agreement and the
\nNetSelect Ancillary Agreements have been duly and validly approved and
\nauthorized by NetSelect’s Board of Directors.<\/p>\n
3.2.2 No filing, authorization or approval, governmental or
\notherwise, is necessary to enable NetSelect to enter into, and to perform its
\nobligations under, this Agreement and the NetSelect Ancillary Agreements, except
\nfor (a) the filing of the Certificate of Merger with the Delaware Secretary of
\nState, the recording of the Certificate of Merger in the office of the Recorder
\nof the Delaware county in which NetSelect’s registered office is located, and
\nthe filing of appropriate documents with the relevant authorities of other
\nstates in which NetSelect is qualified to do business, if any, (b) such filings
\nas may be required to comply with federal and state securities laws, (c) the
\napproval of and adoption by the holders of NetSelect Stock of this Agreement and
\nall transactions contemplated by this Agreement, as provided under applicable
\nlaw, the NetSelect Certificate of Incorporation, the Bylaws of NetSelect and any
\nother <\/p>\n
17<\/p>\n
charter document of NetSelect (the “NetSelect Stockholder Approval”), (d) the
\n(i) termination, as contemplated by this Agreement, of the InfoTouch Stockholder
\nAgreement, (ii) the amendment and restatement, as contemplated by this
\nAgreement, of the NetSelect Stockholders’ Agreement, and (iii) the amendment and
\nrestatement, as contemplated by this Agreement, of the RealSelect. Stockholders’
\nAgreement, and (e) those consents, approvals and filings which will be obtained
\nprior to the Effective Time.<\/p>\n
3.2.3 This Agreement and the NetSelect Ancillary Agreements, when
\nexecuted by NetSelect will be, valid and binding obligations of NetSelect
\nenforceable in accordance with their respective terms, except as to the effect,
\nif any, of (a) applicable bankruptcy and other similar laws affecting the rights
\nof creditors generally, and (b) rules of law governing specific performance,
\ninjunctive relief and other equitable remedies; provided, however, that the
\nCertificate of Merger and the LLC Certificate of Merger will not be effective
\nuntil filed with the Delaware Secretary of State.<\/p>\n
3.3 No Violation of Existing Agreements. Neither the execution and
\ndelivery of this Agreement nor any NetSelect Ancillary Agreement, nor the
\nconsummation of the transactions contemplated hereby, will conflict with, or
\n(with or without notice or lapse of time, or both) result in a termination,
\nbreach, impairment or violation of (a) any provision of the Certificate of
\nIncorporation or Bylaws of NetSelect, as currently in effect, (b) in any
\nmaterial respect, any material instrument or contract to which NetSelect is a
\nparty or by which NetSelect is bound, or (c) any federal, state, local or
\nforeign judgment, writ, decree, order, statute, rule or regulation applicable to
\nNetSelect or its assets or properties. The consummation of the Merger (and the
\ntransactions contemplated hereby) and the assumption by InfoTouch of all
\nmaterial rights, licenses, franchises, leases and agreements of NetSelect in
\nconnection with the Merger will not require the consent of any third party under
\nany instrument or contract to which NetSelect is a party or by which it is
\nbound.<\/p>\n
3.4 No Brokers. NetSelect is not obligated for the payment of fees or
\nexpenses of any investment banker, broker or finder in connection with the
\norigin, negotiation or execution of this Agreement or the Certificate of Merger
\nor in connection with any transaction contemplated hereby or thereby.<\/p>\n
3.5 Capitalization. The authorized capital stock of NetSelect
\nconsists of: (i) 35,000,000 shares of Class A Common Stock, par value $0.001 per
\nshare, of which 2,380,019 shares are issued and outstanding; (ii) 10,000,000
\nshares of Class B Common Stock, par value $0.001 per share, of which 116,470
\nshares are issued and outstanding; and (iii) 10,000,000 shares of Convertible
\nPreferred Stock, par value $0.001 per share, of which 1,647,059 shares have been
\ndesignated as Series A Convertible Preferred Stock, of which 1,378,000 shares
\nare outstanding; 352,941 shares have been designated as Series B Convertible
\nPreferred Stock, of which 190,336 shares are outstanding; 614,374 shares <\/p>\n
18<\/p>\n
have been designated as Series C Convertible Preferred Stock, of which 614,374
\nshares are outstanding; 681,201 shares have been designated as Series D
\nConvertible Preferred Stock, of which 681,201 shares are outstanding; 325,000
\nshares have been designated as Series E Convertible Preferred Stock, of which
\n325,000 shares are outstanding; and 2,100,000 shares have been designated as
\nSeries F Convertible Preferred Stock, of which 1,664,049 shares have been issued
\n(together with the Series A Convertible Preferred Stock, the Series B
\nConvertible Preferred Stock, the Series C Convertible Preferred Stock, Series D
\nConvertible Preferred Stock and the Series E Convertible Preferred Stock, the
\n“NetSelect Preferred Stock”). An aggregate of 2,000,000 shares of NetSelect
\nCommon Stock are reserved and authorized for issuance pursuant to exercise of
\nNetSelect Options granted pursuant to the NetSelect Plans, of which options to
\npurchase a total of 1,245,962 shares of NetSelect Common Stock are outstanding.
\nAn aggregate of 638,717 shares of NetSelect Stock are reserved and authorized
\nfor issuance pursuant to outstanding NetSelect Warrants. All issued and
\noutstanding shares of NetSelect Stock, and NetSelect Options and NetSelect
\nWarrants, have been duly authorized and validly issued, are fully paid and
\nnonassessable, are not subject to any right of rescission or redemption (except
\nas provided in the Voting Agreement, and have been offered, issued, sold and
\ndelivered by NetSelect in compliance with all registration or qualification
\nrequirements (or applicable exemptions therefrom) of applicable federal and
\nstate securities laws. Except as set forth in this Section, the NetSelect
\nStockholders’ Agreement and NetSelect Disclosure Schedule, there are no options,
\nwarrants, calls, commitments, conversion privileges or preemptive or other
\nrights or agreements outstanding to purchase from NetSelect any of NetSelect’s
\nauthorized but unissued capital stock or any securities convertible into or
\nexchangeable for shares of NetSelect Stock or obligating NetSelect to grant,
\nextend, or enter into any such option, warrant, call, right, commitment,
\nconversion privilege or other right or agreement, and there is no liability for
\ndividends accrued but unpaid. Except for the NetSelect Stockholders’ Agreement
\nand the Voting Agreement, there are no voting agreements, rights of first
\nrefusal or other restrictions (other than normal restrictions on transfer under
\napplicable federal and state securities laws) applicable to any of NetSelect
\noutstanding securities. Except for the NetSelect Stockholders’ Agreement,
\nNetSelect is not under any obligation to register under the Securities Act any
\nof its presently outstanding securities or any securities that may be
\nsubsequently issued.<\/p>\n
3.6 Subsidiaries. Except for its membership interest in NS LLC, and
\nits interests in RealSelect, Inc., Enterprise of America Ltd., National New
\nHomes Co., Inc. and TouchTech Corporation, NetSelect does not have any
\nsubsidiaries or hold any interest, direct or indirect, in any corporation,
\npartnership, joint venture or other business entity.<\/p>\n
3.7 Litigation. There is no action, proceeding, claim or
\ninvestigation pending against NetSelect before any court or administrative
\nagency, nor, to the best of NetSelect’s knowledge, has any such action,
\nproceeding, claim or investigation been threatened. There is, to the best of
\nNetSelect’s knowledge, no reasonable basis for any <\/p>\n
19<\/p>\n
stockholder or former stockholder of NetSelect, or any other person, firm,
\ncorporation, or entity, to assert a claim against NetSelect or InfoTouch based
\nupon: (a) ownership or rights to ownership of any shares of NetSelect Stock,
\nNetSelect Options or NetSelect Warrants (except for dissenter’s rights with
\nrespect to shares of NetSelect Stock issuable by virtue of the Merger), (b) any
\nrights as a NetSelect stockholder, including any option or preemptive rights or
\nrights to notice or to vote, or (c) any rights under any agreement among
\nNetSelect and its stockholders.<\/p>\n
3.8 Taxes. NetSelect has filed all federal, state, local and foreign
\ntax returns required to be filed, has paid all taxes required to be paid in
\nrespect of all periods for which returns have been filed, has established an
\nadequate accrual or reserve for the payment of all taxes payable in respect of
\nthe periods subsequent to the periods covered by the most recent applicable tax
\nreturns, has made all necessary estimated tax payments, and has no liability for
\ntaxes in excess of the amount so paid or accruals or reserves so established.
\nFor the purposes of this Section, the terms “tax” and “taxes” include all
\nfederal, state, local and foreign income, gains, franchise, excise, property,
\nsales, use, employment, license, payroll, occupation, recording, value added or
\ntransfer taxes, governmental charges, fees, levies or assessments (whether
\npayable directly or by withholding), and, with respect to such taxes, any
\nestimated tax, interest and penalties or additions to tax and interest on such
\npenalties and additions to tax.<\/p>\n
3.9 NetSelect Financial Statements. NetSelect has delivered to
\nInfoTouch a true and correct copy of NetSelect’s audited balance sheets dated as
\nof December 31, 1996 and 1997, respectively, its audited statements of
\noperations and of cash flows for the period from December 4, 1996 (inception) to
\nDecember 31, 1996, and the year ended December 31, 1997, respectively, and its
\ninterim unaudited balance sheet (the “NetSelect Balance Sheet”) as of September
\n30, 1998 (the “NetSelect Balance Sheet Date”) and interim unaudited statement of
\noperations and of cash flows for the nine months ended September 30, 1998 (all
\nof the foregoing referred to collectively as, the “NetSelect Financial
\nStatements”). The NetSelect Financial Statements (a) are in accordance with the
\nbooks and records of NetSelect, (b) fairly present the financial condition of
\nNetSelect at the dates therein indicated and the results of operations for the
\nperiods therein specified and (c) have been prepared in accordance with
\ngenerally accepted accounting principles applied on a consistent basis.
\nNetSelect has no debt, liability or obligation of any nature, whether accrued,
\nabsolute, contingent or otherwise, and whether due or to become due, that is not
\nreflected or reserved against in the NetSelect Financial Statements, except for
\nthose that may have been incurred after the NetSelect Balance Sheet Date in the
\nordinary course of its business, consistent with past practice and that are not
\nin excess of $100,000 either individually or collectively.<\/p>\n
3.10 Books and Records. The books, records and accounts of NetSelect
\n(a) are in all material respects true, complete and correct, (b) have been
\nmaintained in accordance with good business practices on a basis consistent with
\nprior <\/p>\n
20<\/p>\n
years, (c) are stated in reasonable detail and accurately and fairly reflect the
\ntransactions and dispositions of the assets of NetSelect, and (d) accurately and
\nfairly reflect the basis for the NetSelect Financial Statements.<\/p>\n
3.11 Title to Properties. NetSelect has good and marketable title to
\nall of its assets as shown on the NetSelect Balance Sheet, free and clear of all
\nmaterial liens, charges, restrictions or encumbrances (other than for taxes not
\nyet due and payable). All leases of real or personal property to which NetSelect
\nis a party are fully effective and afford NetSelect peaceful and undisturbed
\npossession of the subject matter of the lease. NetSelect is in no way in
\nmaterial violation of any zoning, building, safety or environmental ordinance,
\nregulation or requirement or other law or regulation applicable to the operation
\nof owned or leased properties, and has not received any notice of violation with
\nwhich it has not complied.<\/p>\n
3.12 Absence of Certain Changes. Since the NetSelect Balance Sheet
\nDate, there has not been with respect to NetSelect:<\/p>\n
(a) any change in the financial condition, properties, assets,
\nliabilities, business or operations thereof, whether or not arising in the
\nordinary course of business, that has had or will have a material adverse effect
\non NetSelect;<\/p>\n
(b) any contingent liability incurred by NetSelect as guarantor
\nor otherwise with respect to the obligations of others;<\/p>\n
(c) any mortgage, encumbrance or lien placed on any of the
\nproperties of NetSelect;<\/p>\n
(d) any obligation or liability incurred by NetSelect (except as
\nincurred in the ordinary course of NetSelect’s business);<\/p>\n
(e) any purchase or sale or other disposition, or any agreement
\nor other arrangement for the purchase, sale or other disposition, of any of the
\nproperties or assets of NetSelect (except non-material purchases or sales in the
\nordinary course of NetSelect’s business, and except for the acquisition of
\nshares of RealSelect Common Stock held by NS LLC pursuant to the RealSelect
\nStock Transfer Agreement);<\/p>\n
(f) any damage, destruction or loss, whether or not covered by
\ninsurance, adversely affecting the properties, assets or business of NetSelect;<\/p>\n
(g) any declaration, setting aside or payment of any dividend
\non, or the making of any other distribution in respect of, the capital stock of
\nNetSelect, any split, combination or recapitalization of the capital stock of
\nNetSelect or any direct or indirect redemption, purchase or other acquisition of
\nthe capital stock of NetSelect;<\/p>\n
21<\/p>\n
(h) any payment or discharge of a material lien or liability of
\nNetSelect which lien or liability was not reflected on the NetSelect Balance
\nSheet; or<\/p>\n
(i) any obligation or liability incurred by NetSelect to any of
\nits officers, directors or stockholders or any loans or advances made by
\nNetSelect to any of its officers, directors or stockholders.<\/p>\n
3.13 Intellectual Property. NetSelect owns, or has the right to use,
\nsell or license all Intellectual Property Rights (as defined below) that are
\nnecessary or required for the conduct of its business as presently conducted
\n(such Intellectual Property Rights being referred to as the “NetSelect IP
\nRights”) and such rights to use, sell or license are sufficient for such conduct
\nof its business. The execution, delivery and performance of this Agreement and
\nthe consummation of the transactions contemplated hereby will not constitute a
\nbreach of any instrument or agreement governing any NetSelect IP Rights (the
\n“NetSelect IP Rights Agreements”). There is no pending or, to the best knowledge
\nof NetSelect, threatened claim or litigation contesting the validity, ownership
\nor right to use, sell, license or dispose of any NetSelect IP Rights, nor is
\nthere any basis for any such claim, nor has NetSelect received any notice
\nasserting that any NetSelect IP Rights or the proposed use, sale, license or
\ndisposition thereof conflicts or will conflict with the rights of any other
\nparty. As used herein, the term “Intellectual Property Rights” shall mean all
\nworldwide industrial and intellectual property rights, including, without
\nlimitation, patents, patent applications, patent rights, trademarks, trademark
\napplications, trade names, service marks, service mark applications, copyright,
\ncopyright applications, franchises, licenses, inventories, know-how, trade
\nsecrets, customer lists, proprietary processes and formulae, all source and
\nobject code, algorithms, architecture, structure, display screens, layouts,
\ninventions, development tools and all documentation and media constituting,
\ndescribing or relating to the above, including, without limitation, manuals,
\nmemoranda and records.<\/p>\n
3.14 Compliance with Laws. NetSelect has complied, or prior to the
\nClosing Date will have complied, and is or will be at the Closing Date in full
\ncompliance, with all applicable laws, ordinances, regulations, and rules, and
\nall orders, writs, injunctions, awards, judgments, and decrees applicable to it
\nor its assets, properties, and business thereof, including, without limitation:
\n(a) all applicable federal and state securities laws and regulations, (b) to
\nNetSelect’s knowledge, all applicable federal, state, and local laws,
\nordinances, regulations, and all orders, writs, injunctions, awards, judgments,
\nand decrees pertaining to (i) the sale, licensing, leasing, ownership, or
\nmanagement of its owned, leased or licensed real or personal property, products
\nand technical data, (ii) employment and employment practices, terms and
\nconditions of employment, and wages and hours and (iii) safety, health, fire
\nprevention, environmental protection, toxic waste disposal, building standards,
\nzoning and other similar matters, (c) to NetSelect’s knowledge, the Export
\nAdministration Act, as amended, and regulations promulgated thereunder and all
\nother laws, regulations, rules, orders, writs, injunctions, judgments and
\ndecrees applicable to the export or re-export <\/p>\n
22<\/p>\n
of controlled commodities or technical data and (d) to NetSelect’s knowledge,
\nthe Immigration Reform and Control Act, as amended.<\/p>\n
3.15 Corporate Documents. NetSelect has made available to InfoTouch
\nor its counsel for examination all documents and information listed in the
\nNetSelect Disclosure Schedule or other schedules called for by this Agreement
\nwhich has been requested by InfoTouch’s legal counsel, including, without
\nlimitation, the following: (a) copies of NetSelect’s Certificate of
\nIncorporation and Bylaws as currently in effect; (b) its Minute Book containing
\nall records of all proceedings, consents, actions, and meetings of the
\nstockholders, the board of directors and any committees thereof; (c) its stock
\nledger and journal reflecting all stock issuances and transfers; (d) all
\npermits, orders, and consents issued by any regulatory agency with respect to
\nNetSelect, or any securities of NetSelect, and all applications for such
\npermits, orders, and consents, and all material agreements, arrangements or
\nobligations to which NetSelect is bound or is a party.<\/p>\n
3.16 Disclosure. Neither this Agreement, its exhibits and schedules,
\nnor any of the certificates or documents to be delivered by NetSelect to
\nInfoTouch or its counsel under this Agreement, taken together, contains any
\nuntrue statement of a material fact or omits to state any material fact
\nnecessary in order to make the statements contained herein and therein, in light
\nof the circumstances under which such statements were made, not misleading.<\/p>\n
3.17 Information Supplied. None of the information supplied or to be
\nsupplied by NetSelect for inclusion in the Information Statement or to holders
\nof its capital stock in connection with obtaining the NetSelect Stockholder
\nApproval, at the date such information is supplied and at the date of such
\nInformation Statement, contains or will contain any untrue statement of a
\nmaterial fact or omits or will omit to state any material fact required to be
\nstated therein or necessary in order to make the statements therein, in light of
\nthe circumstances under which they are made, not misleading.<\/p>\n
4. InfoTouch Preclosing Covenants<\/p>\n
During the period from the date of this Agreement until the Effective
\nTime, InfoTouch covenants and agrees as follows:<\/p>\n
4.1 Advice of Changes. InfoTouch will promptly advise NetSelect in
\nwriting (a) of any event occurring subsequent to the date of this Agreement that
\nwould render any representation or warranty of InfoTouch contained in this
\nAgreement, if made on or as of the date of such event or the Closing Date,
\nuntrue or inaccurate in any material respect, and (b) of any material adverse
\nchange in InfoTouch’s business, results of operations or financial condition.<\/p>\n
23<\/p>\n
4.2 Maintenance of Business. InfoTouch will carry on and preserve its
\nbusiness the same manner as it has prior to the date hereof.<\/p>\n
4.3 Conduct of Business. InfoTouch will take no actions other than
\nsuch actions as may be required in connection with its ownership of membership
\ninterests in NS LLC, and will not (other than as expressly contemplated by this
\nAgreement or agreed to in writing by the parties): (i) incur any liability, lien
\nor debt with respect to any of its assets, (ii) alter in any way its current
\nauthorized and outstanding equity securities, or issue, grant or agree to issue
\nor grant any additional capital stock, options, warrants, convertible notes or
\nother equity instruments, (iii) enter into or undertake any obligation with
\nrespect to any business or transaction, and (iv) sell or otherwise transfer any
\nof its assets.<\/p>\n
4.4 Stockholders Approval. InfoTouch will solicit at the earliest
\npracticable date the InfoTouch Stockholder Approval, either at a duly noticed
\nmeeting or by action by written consent pursuant to section 228 of the Delaware
\nLaw, which approval will be recommended by the Board of Directors of InfoTouch.<\/p>\n
4.5 Information Statement. In connection with the solicitation of the
\nInfoTouch Stockholder Approval, InfoTouch will send to the InfoTouch
\nStockholders the Information Statement and any other information and materials
\nto be supplied by InfoTouch to its stockholders for the purpose of considering
\nthe approval of the Merger, and if necessary, notice pursuant to section 228(d)
\nof the Delaware Law.<\/p>\n
4.6 Regulatory Approvals. InfoTouch will execute and file, or join in
\nthe execution and filing, of any application or other document that may be
\nnecessary in order to obtain the authorization, approval or consent of any
\ngovernmental body, federal, state, local or foreign which may be reasonably
\nrequired, or which NetSelect may reasonably request, in connection with the
\nconsummation of the transactions contemplated by this Agreement. InfoTouch will
\nuse its best efforts to obtain all such authorizations, approvals and consents.<\/p>\n
4.7 Litigation. InfoTouch will notify NetSelect in writing promptly
\nafter learning of any actions, suits, proceedings or investigations by or before
\nany court, board or governmental agency, initiated by or against it or NS LLC,
\nor known by it to be threatened against it or NS LLC.<\/p>\n
4.8 No Other Negotiations. From the date hereof until the earlier of
\ntermination of this Agreement or consummation of the Merger, InfoTouch will not,
\nand will not authorize or permit any officer, director, employee or affiliate of
\nInfoTouch, or any other person, on its behalf to, directly or indirectly,
\nsolicit or encourage any offer from any party or consider any inquiries or
\nproposals received from any other party, participate in any negotiations
\nregarding, or furnish to any person any information with respect to, or
\notherwise cooperate with, facilitate or encourage any effort or attempt by <\/p>\n
24<\/p>\n
any person (other than NetSelect), concerning the possible disposition of all or
\nany substantial portion of its business, assets or capital stock by merger, sale
\nor any other means. InfoTouch will promptly notify NetSelect orally and in
\nwriting of any such inquiries or proposals.<\/p>\n
4.9 Access to Information. Until the Closing, InfoTouch will allow
\nNetSelect and its agents reasonable access to the files, books, records and
\noffices of InfoTouch, including, without limitation, any and all information
\nrelating to InfoTouch’s taxes, commitments, contracts, leases, licenses, and
\nreal, personal and intangible property and financial condition. InfoTouch will
\ncause its accountants to cooperate with NetSelect and its agents in making
\navailable all financial information reasonably requested, including without
\nlimitation the right to examine all working papers pertaining to all financial
\nstatements prepared or audited by such accountants.<\/p>\n
4.10 Satisfaction of Conditions Precedent; Necessary Consents.
\nInfoTouch will use its best efforts to satisfy or cause to be satisfied all the
\nconditions precedent which are set forth in Section 7, and InfoTouch will use
\nits best efforts to cause the transactions contemplated by this Agreement to be
\ntimely consummated, and, without limiting the generality of the foregoing, to
\nobtain all consents and authorizations of third parties and to make all filings
\nwith, and give all notices to, third parties that may be necessary or reasonably
\nrequired on its part in order to effect the transactions contemplated hereby.<\/p>\n
4.11 InfoTouch Dissenting Shares. As promptly as practicable after
\nthe date of the InfoTouch Stockholder Approval and prior to the Closing Date,
\nInfoTouch shall furnish NetSelect with the name and address of each InfoTouch
\nDissenting Stockholder and the number of InfoTouch Dissenting Shares owned by
\nsuch InfoTouch Dissenting Stockholder.<\/p>\n
4.12 Blue Sky Laws. InfoTouch shall use its best efforts to assist
\nNetSelect to the extent necessary to comply with the securities and Blue Sky
\nlaws of all jurisdictions which are applicable in connection with the Merger.<\/p>\n
4.13 Resignations of InfoTouch Officers and Directors. Before the
\nClosing, InfoTouch will obtain the resignations of all of the directors and
\nofficers of InfoTouch, effective as of the Effective Time.<\/p>\n
4.14 Amendment of InfoTouch Bylaws. InfoTouch will amend and restate
\nits Bylaws in the form of the Amended Bylaws attached hereto, conditioned upon
\nand effective as of the Effective Time.<\/p>\n
4.15 Reverse Stock Split and RealSelect Stock Transfer. InfoTouch
\nwill effect a 1 to .444628866 reverse stock split of its outstanding capital
\nstock (the “Reverse Stock Split”), effective as of immediately before the
\nEffective Time, such that as of the Effective Time, the number of issued and
\noutstanding shares of InfoTouch Common <\/p>\n
25<\/p>\n
Stock, plus the number of shares of InfoTouch Common Stock issuable upon the
\nexercise of outstanding InfoTouch Options (and any other rights to acquire
\nequity securities of InfoTouch, or which InfoTouch represents there are none),
\nequals 2,000,002 shares of Surviving Company Common Stock. Effective immediately
\nbefore the Effective Time, InfoTouch will have acquired from NS LLC 40.08 shares
\nof RealSelect Common Stock pursuant to the RealSelect Stock Transfer Agreement<\/p>\n
5. NetSelect Preclosing Covenants<\/p>\n
During the period from the date of this Agreement until the Effective
\nTime, NetSelect covenants and agrees as follows:<\/p>\n
5.1 Advice of Changes. NetSelect will promptly advise InfoTouch in
\nwriting (a) of any event occurring subsequent to the date of this Agreement that
\nwould render any representation or warranty of NetSelect contained in this
\nAgreement, if made on or as of the date of such event or the Closing Date,
\nuntrue or inaccurate in any material respect and (b) of any material adverse
\nchange in NetSelect’s business, results of operations or financial condition.<\/p>\n
5.2 Maintenance of Business. NetSelect will carry on and preserve
\nits business the same manner as it has prior to the date hereof.<\/p>\n
5.3 Litigation. NetSelect will notify InfoTouch in writing promptly
\nafter learning of any actions, suits, proceedings or investigations by or before
\nany court, board or governmental agency, initiated by or against it or NS LLC,
\nor known by it to be threatened against it or NS LLC<\/p>\n
5.4 Regulatory Approvals. NetSelect will execute and file, or join
\nin the execution and filing, of any application or other document that may be
\nnecessary in order to obtain the authorization, approval or consent of any
\ngovernmental body, federal, state, local or foreign, which may be reasonably
\nrequired, or which InfoTouch may reasonably request, in connection with the
\nconsummation of the transactions contemplated by this Agreement. NetSelect will
\nuse its best efforts to obtain all such authorizations, approvals and consents.<\/p>\n
5.5 Satisfaction of Conditions Precedent; Necessary Consents.
\nNetSelect will use its best efforts to satisfy or cause to be satisfied all the
\nconditions precedent which are set forth in Section 8, and NetSelect will use
\nits best efforts to cause the transactions contemplated by this Agreement to be
\ntimely consummated, and, without limiting the generality of the foregoing, to
\nobtain all consents and authorizations of third parties and to make all filings
\nwith, and give all notices to, third parties that may be necessary or reasonably
\nrequired on its part in order to effect the transactions contemplated hereby.<\/p>\n
26<\/p>\n
5.6 Stockholders Approval. NetSelect will solicit at the earliest
\npracticable date the NetSelect Stockholder Approval, either at a duly noticed
\nmeeting of the stockholders or by action by written consent pursuant to section
\n228 of the Delaware Law which approval will be recommended by the Board of
\nDirectors of NetSelect.<\/p>\n
5.7 Information Statement. In connection with the solicitation of
\nthe NetSelect Stockholder Approval, NetSelect will send to its stockholders the
\nInformation Statement and any other information and materials to be supplied by
\nNetSelect to its stockholders for the purpose of considering the approval of the
\nMerger and, if necessary, notice pursuant to section 228(d) of the Delaware Law.<\/p>\n
5.8 Blue Sky Laws. NetSelect shall take such steps as may be
\nnecessary to comply with the securities and Blue Sky laws of all jurisdictions
\nwhich are applicable in connection with the Merger.<\/p>\n
5.9 NetSelect Stockholder Investment Representation Letter.
\nNetSelect will promptly send to and have received from each NetSelect
\nStockholder, who is exchanging NetSelect Stock in the Merger, the NetSelect
\nStockholder Investment Representation Letter, in substantially the form attached
\nhereto as Exhibit F (the “NetSelect Investment Representation Letter”) duly
\nexecuted by each such holder.<\/p>\n
5.10 Access to Information. Until the Closing, NetSelect will allow
\nInfoTouch and its agents reasonable access to the files, books, records and
\noffices of NetSelect, including, without limitation, any and all information
\nrelating to NetSelect’s taxes, commitments, contracts, leases, licenses, and
\nreal, personal and intangible property and financial condition. NetSelect will
\ncause its accountants to cooperate with InfoTouch and its agents in making
\navailable all financial information reasonably requested, including without
\nlimitation the right to examine all working papers pertaining to all financial
\nstatements prepared or audited by such accountants.<\/p>\n
5.11 RealSelect Stock Transfer. Effective immediately before the
\nEffective Time, NetSelect will have acquired from NS LLC 147.19 shares of
\nRealSelect Common Stock pursuant to the RealSelect Stock Transfer Agreement<\/p>\n
6. closing matters<\/p>\n
6.1 The Closing. Subject to termination of this Agreement as
\nprovided in Section 9 below and the satisfaction or waiver of all of the pre-
\nclosing covenants set forth in Sections 7 and 8, the closing of the Merger (the
\n“Closing”) will take place at the offices of Fenwick & West LLP, Two Palo Alto
\nSquare, Palo Alto, California 94306 at 9:00 a.m., San Francisco time on a date
\nmutually agreed to by NetSelect and InfoTouch, but in all events no later than
\nten (10) days after the effectiveness of the NetSelect Stockholder Approval and
\nthe InfoTouch Stockholder Approval or such later date as is specified by
\nNetSelect and InfoTouch (the “Closing Date”). Concurrently with the <\/p>\n
27<\/p>\n
Closing, the Certificate of Merger will be filed in the office of the Secretary
\nof State of the State of Delaware.<\/p>\n
6.2 Exchange of Certificates.<\/p>\n
6.2.1 As of the Effective Time, all shares of NetSelect Common
\nStock and NetSelect Preferred Stock that are outstanding immediately prior
\nthereto (other than shares, if any, for which appraisal rights have been or will
\nbe perfected and in compliance with applicable law) will, by virtue of the
\nMerger and without further action, cease to exist and will be converted into the
\nright to receive from InfoTouch the number of shares of Surviving Company Common
\nStock and Surviving Company Preferred Stock determined as set forth in Section
\n1.1, subject to Section 1.2.<\/p>\n
6.2.2 As soon as practicable after the Effective Time, each
\nholder of shares of NetSelect Common Stock and NetSelect Preferred Stock that
\nare not Dissenting Shares, and each Holder of InfoTouch Common Stock will
\nsurrender the original certificate(s) for such shares (the “Certificates”), duly
\nendorsed as requested by the Surviving Company, to the Surviving Company for
\ncancellation. Promptly after the Effective Time and receipt of such
\nCertificates, subject to Section 1.5 hereof with respect to the NetSelect
\nStockholders, the Surviving Company will issue to each tendering holder a
\ncertificate for the number of shares of Surviving Company Common Stock and\/or
\nSurviving Company Preferred Stock to which such holder is entitled pursuant to
\nSection 1.1.1 hereof. In the event that any certificates representing shares of
\nNetSelect Stock or InfoTouch Common Stock shall have been lost, stolen,
\ndestroyed or were never issued to such holder by NetSelect or InfoTouch, as the
\ncase may be, upon the making of an affidavit of that fact by the holder of such
\nNetSelect Stock or InfoTouch Stock claiming such certificate to be lost, stolen,
\ndestroyed or that such certificate was never issued to such holder, subject to
\nSection 1.5 hereof with respect to the NetSelect Stockholders, the Surviving
\nCompany shall issue in exchange for such lost, stolen or destroyed or never
\nissued certificate the shares of Surviving Company Common Stock and\/or Surviving
\nCompany Preferred Stock that such holder is entitled to receive pursuant to
\nSection 1.1.1 hereof; provided, however, that the Surviving Company may in its
\n ——– ——-
\ndiscretion and as a condition precedent to the issuance thereof, require such
\nholder to provide the Surviving Company with an indemnity agreement against any
\nclaim that may be made against the Surviving Company with respect to the
\ncertificate alleged to have been lost, stolen or destroyed or never issued to
\nsuch holder by NetSelect or InfoTouch.<\/p>\n
6.2.3 No dividends or distributions payable to holders of
\nrecord of NetSelect Stock after the Effective Time, or cash payable in lieu of
\nfractional shares, will be paid to the holder of any unsurrendered NetSelect
\nCertificate(s) until the holder of the NetSelect Certificate(s) surrenders such
\nNetSelect Certificate(s), or in the case of lost, stolen, destroyed or never
\nissued certificates, the affidavit and indemnity required under Section 6.2.2.
\nabove. Subject to the effect, if any, of applicable escheat and <\/p>\n
28<\/p>\n
other laws, following surrender of any NetSelect Certificate(s), there will be
\ndelivered to the person entitled thereto, without interest, the amount of any
\ndividends and distributions therefor paid with respect to Surviving Company
\nCommon Stock and\/or Surviving Company Preferred Stock so withheld as of any date
\nsubsequent to the Effective Time and prior to such date of delivery.<\/p>\n
6.2.4 All Surviving Company Common Stock and\/or Surviving
\nCompany Preferred Stock delivered upon the surrender of NetSelect Stock or
\nInfoTouch Common Stock in accordance with the terms hereof will be deemed to
\nhave been delivered in full satisfaction of all rights pertaining to such
\nNetSelect Stock or InfoTouch Common Stock. There will be no further registration
\nof transfers on the stock transfer books of NetSelect or its transfer agent of
\nthe NetSelect Stock. If, after the Effective Time, Certificates are presented
\nfor any reason, they will be canceled and exchanged as provided in this Section
\n6.2.<\/p>\n
6.2.5 Until the Certificates representing NetSelect Stock or
\nInfoTouch Common Stock outstanding immediately prior to the Merger are
\nsurrendered pursuant to Section 6.2.2 above, such certificates will be deemed,
\nfor all purposes, to evidence ownership of the number of shares of Surviving
\nCompany Common Stock and\/or Surviving Company Preferred Stock into which such
\nNetSelect Stock will have been converted or such InfoTouch Common Stock
\nreclassified.<\/p>\n
6.3 Assumption of NetSelect Options and NetSelect Warrants. Promptly
\nafter the Effective Time, the Surviving Company will notify in writing each
\nholder of a NetSelect Option and a NetSelect Warrant of the assumption of such
\nNetSelect Option and\/or NetSelect Warrant by the Surviving Company, and the
\nnumber of shares of Surviving Company Common Stock and\/or Surviving Company
\nPreferred Stock or other Surviving Company equity that are then subject to such
\noption and\/or warrant and the exercise price of such option and\/or warrant, as
\ndetermined pursuant to Sections 1.1, 1.3 and 1.4 hereof.<\/p>\n
7. Conditions To Obligations of InfoTouch<\/p>\n
InfoTouch’s obligations hereunder are subject to the fulfillment or
\nsatisfaction, on and as of the Closing, of each of the following conditions (any
\none or more of which may be waived by InfoTouch, but only in a writing signed by
\nInfoTouch):<\/p>\n
7.1 Accuracy of Representations and Warranties. The representations
\nand warranties of NetSelect set forth in Section 3 shall be true and accurate in
\nevery material respect on and as of the Closing with the same force and effect
\nas if they had been made at the Closing, and InfoTouch shall receive a
\ncertificate to such effect executed by NetSelect’s Chief Executive Officer or
\nChief Financial Officer.<\/p>\n
29<\/p>\n
7.2 Covenants. NetSelect shall have performed and complied in all
\nmaterial respects with all of its covenants contained in Section 5 on or before
\nthe Closing, and InfoTouch shall receive a certificate to such effect signed by
\nNetSelect’s Chief Executive Officer or Chief Financial Officer.<\/p>\n
7.3 Compliance with Law. There shall be no order, decree, or ruling
\nby any court or governmental agency or threat thereof, or any other fact or
\ncircumstance, which would prohibit or render illegal the transactions
\ncontemplated by this Agreement.<\/p>\n
7.4 Government Consents. There shall have been obtained at or prior
\nto the Closing Date such permits or authorizations, and there shall have been
\ntaken such other action, as may be required to consummate the Merger by any
\nregulatory authority having jurisdiction over the parties and the actions herein
\nproposed to be taken, including but not limited to requirements under applicable
\nfederal and state securities laws.<\/p>\n
7.5 Opinion of NetSelect’s Counsel. InfoTouch shall have received
\nfrom counsel to NetSelect an opinion substantially in the form of Exhibit G.<\/p>\n
7.6 Documents. InfoTouch shall have received all written consents,
\nassignments, waivers, authorizations or other certificates reasonably deemed
\nnecessary by InfoTouch’s legal counsel for InfoTouch to consummate the
\ntransactions contemplated hereby.<\/p>\n
7.7 Stockholder Approval. The InfoTouch Stockholder Approval and
\nNetSelect Stockholder Approval shall have been obtained.<\/p>\n
7.8 No Litigation. No litigation or proceeding shall be threatened
\nor pending for the purpose or with the probable effect of enjoining or
\npreventing the consummation of any of the transactions contemplated by this
\nAgreement, or which could be reasonably expected to have a material adverse
\neffect on the present or future operations or financial condition of NetSelect.<\/p>\n
7.9 InfoTouch Dissenting Shares. The InfoTouch Dissenting
\nStockholders shall not own in the aggregate more than five percent (5%) of all
\nof the InfoTouch Stock outstanding immediately prior to the Effective Time of
\nthe Merger.<\/p>\n
7.10 Consents. InfoTouch shall have received duly executed copies of
\nall material third-party consents and approvals contemplated by this Agreement
\nor the InfoTouch Disclosure Schedule and NetSelect Disclosure Schedule, in form
\nand substance reasonably satisfactory to InfoTouch, except for such consents and
\napprovals as InfoTouch and NetSelect shall have agreed shall not be obtained.<\/p>\n
30<\/p>\n
7.11 Stock Redemption Agreement. InfoTouch shall have received the
\nStock Redemption Agreement executed by InfoTouch and the Redeeming Stockholders,
\nproviding for the repurchase of certain of the Surviving Company Common Stock
\nheld by such Redeeming Stockholder after the Merger.<\/p>\n
7.12 NetSelect Stockholder Investment Representation Letter. Each
\nNetSelect Stockholder who is exchanging NetSelect Stock in the Merger shall have
\nexecuted and delivered to InfoTouch and NetSelect the NetSelect Investment
\nRepresentation Letter.<\/p>\n
7.13 Amendment of NetSelect Stockholders’ Agreement and RealSelect
\nStockholders’ Agreement. As of the Closing, (i) the NetSelect Stockholders’
\nAgreement shall have duly amended and restated pursuant to the Amended and
\nRestated NetSelect Stockholders’ Agreement substantially in the form attached
\nhereto as Exhibit H (the “Restated NetSelect Stockholders’ Agreement”), shall be
\nassumed by the Surviving Company and shall be in full force and effect, and (ii)
\nthe RealSelect Stockholders’ Agreement shall have been duly amended and restated
\npursuant to the Amended and Restated RealSelect Stockholders’ Agreement
\nsubstantially in the form attached hereto as Exhibit I (the “Restated RealSelect
\nStockholders’ Agreement”) and be in full force and effect.<\/p>\n
7.14 Absence of Material Adverse Change. There shall not have been,
\nin the reasonable judgment of the Board of Directors of InfoTouch, any material
\nadverse change in the business or financial condition of NetSelect.<\/p>\n
8. Conditions To Obligations of NetSelect<\/p>\n
The obligations of NetSelect hereunder are subject to the fulfillment
\nor satisfaction on, and as of the Closing, of each of the following conditions
\n(any one or more of which may be waived by NetSelect, but only in a writing
\nsigned by NetSelect):<\/p>\n
8.1 Accuracy of Representations and Warranties. The representations
\nand warranties of InfoTouch set forth in Section 2 shall be true and accurate in
\nevery material respect on and as of the Closing with the same force and effect
\nas if they had been made at the Closing, and NetSelect shall receive a
\ncertificate to such effect executed by InfoTouch’s President or Chief Financial
\nOfficer.<\/p>\n
8.2 Covenants. InfoTouch shall have performed and complied in all
\nmaterial respects with all of its covenants contained in Section 4 on or before
\nthe Closing, and NetSelect shall receive a certificate to such effect signed by
\nInfoTouch’s President or Chief Financial officer.<\/p>\n
8.3 Absence of Material Adverse Change. There shall not have been,
\nin the reasonable judgment of the Board of Directors of NetSelect, any material
\nadverse change in the business or financial condition of InfoTouch.<\/p>\n
31<\/p>\n
8.4 Compliance with Law. There shall be no order, decree, or ruling
\nby any court or governmental agency or threat thereof, or any other fact or
\ncircumstance, which would prohibit or render illegal the transactions
\ncontemplated by this Agreement.<\/p>\n
8.5 Government Consents. There shall have been obtained at or prior
\nto the Closing Date such permits or authorizations, and there shall have been
\ntaken such other action, as may be required to consummate the Merger by any
\nregulatory authority having jurisdiction over the parties and the actions herein
\nproposed to be taken, including but not limited to requirements under applicable
\nfederal and state securities laws.<\/p>\n
8.6 Opinion of InfoTouch’s Counsel. NetSelect shall have received
\nfrom counsel to InfoTouch an opinion substantially in the form of Exhibit J.<\/p>\n
8.7 Consents. NetSelect shall have received duly executed copies of
\nall material third-party consents, approvals, assignments, waivers,
\nauthorizations or other certificates contemplated by this Agreement or the
\nInfoTouch Disclosure Schedule and NetSelect Disclosure Schedule or reasonably
\ndeemed necessary by NetSelect’s legal counsel to provide for the continuation in
\nfull force and effect of any and all material contracts and leases of InfoTouch
\nand NetSelect and for NetSelect to consummate the transactions contemplated
\nhereby in a form and substance reasonably satisfactory to NetSelect, except as
\nInfoTouch and NetSelect shall have otherwise agreed shall not be obtained.<\/p>\n
8.8 No Litigation. No litigation or proceeding shall be threatened
\nor pending for the purpose or with the probable effect of enjoining or
\npreventing the consummation of any of the transactions contemplated by this
\nAgreement, or which could be reasonably expected to have a material adverse
\neffect on the present or future operations or financial condition of InfoTouch.<\/p>\n
8.9 Stockholder Approvals. The InfoTouch Stockholder Approval and
\nNetSelect Stockholder Approval shall have been obtained.<\/p>\n
8.10 Dissenting Shares. NetSelect Dissenting Stockholders shall not
\nown in the aggregate more than five percent (5%) of the shares of NetSelect
\nStock immediately prior to the Effective Time.<\/p>\n
8.11 Termination of InfoTouch Stockholder Agreement. At the Closing,
\nthe Termination Agreement by and among NetSelect, InfoTouch, the NAR, RIN and
\ncertain of the InfoTouch Stockholders, substantially in form attached hereto as
\nExhibit K (the “Termination Agreement”), terminating the InfoTouch Stockholder
\nAgreement, shall have been duly executed, delivered and in full force and
\neffect.<\/p>\n
32<\/p>\n
8.12 Amendment of NetSelect Stockholders’ Agreement and RealSelect
\nStockholders’ Agreement. As of the Closing, (i) the Restated NetSelect
\nStockholders’ Agreement shall have been duly executed and delivered, and shall
\nbe assumed by the Surviving Company and shall be in full force and effect, and
\n(ii) the Restated RealSelect Stockholders’ Agreement shall have been duly
\nexecuted and delivered and in full force and effect.<\/p>\n
8.13 NetSelect Stockholder Investment Representation Letter. Each
\nNetSelect Stockholder who is exchanging NetSelect Stock in the Merger shall have
\nexecuted and delivered to InfoTouch and NetSelect the NetSelect Investment
\nRepresentation Letter.<\/p>\n
8.14 Escrow Agreement. InfoTouch and NetSelect shall have received
\nthe Escrow Agreement executed by all parties thereto.<\/p>\n
8.15 Stock Redemption Agreement. InfoTouch and NetSelect shall have
\nreceived the Stock Redemption Agreement executed by InfoTouch and the Redeeming
\nStockholders, providing for the repurchase of certain of the Surviving Company
\nCommon Stock held by such Redeeming Stockholders after the Merger.<\/p>\n
8.16 Termination of Rights. Any registration rights, rights of
\nrefusal, rights to any liquidation preference, or redemption rights of any
\nInfoTouch Stockholder shall have been terminated or waived as of the Closing.<\/p>\n
8.17 Satisfactory Form of Legal and Accounting Matters. The form,
\nscope and substance of all legal and accounting matters contemplated hereby and
\nall closing documents and other papers delivered hereunder shall be acceptable
\nto NetSelect’s counsel.<\/p>\n
8.18 Resignations of InfoTouch Officers and Directors. The persons
\nwho were the directors and officers of InfoTouch immediately prior to the
\nEffective Time shall have resigned as directors and officers of InfoTouch
\neffective as of the Effective Time, and immediately after such time the
\ndirectors and the officers of the Surviving Company shall be the persons who
\nwere the directors and officers of NetSelect immediately prior to the Effective
\nTime.<\/p>\n
8.19 Amendment of InfoTouch Bylaws and Reverse Stock Split. At the
\nEffective Time, the Bylaws of the Surviving Company shall be amended and
\nrestated in the form of the Amended Bylaws attached hereto and in full force and
\neffect, and immediately before the Effective Time, InfoTouch shall have effected
\nthe Reverse Stock Split.<\/p>\n
9. Termination of Agreement<\/p>\n
9.1 Termination Prior to Closing.<\/p>\n
33<\/p>\n
9.1.1 This Agreement may be terminated at any time prior to the
\nClosing by the mutual written consent of NetSelect and InfoTouch.<\/p>\n
9.1.2 Unless otherwise agreed by the parties hereto, this
\nAgreement will be terminated if all conditions to the Closing have not been
\nsatisfied or waived on or before February 28, 1999.<\/p>\n
9.1.3. By NetSelect if any of the conditions precedent to
\nNetSelect’s obligations set forth in Section 8 above have not been fulfilled or
\nwaived at and as of the Closing; or<\/p>\n
9.1.4. By InfoTouch if any of the conditions precedent to
\nInfoTouch’s obligations set forth in Section 7 above have not been fulfilled or
\nwaived at and as of the Closing.<\/p>\n
9.1.5. This Agreement may be terminated prior to the Closing, by
\nNetSelect, if there has been a breach by InfoTouch of any representation,
\nwarranty, covenant or agreement set forth in this Agreement on the part of
\nInfoTouch, or if any representation or warrant of InfoTouch shall have become
\nuntrue, in either case, which InfoTouch fails to cure within a reasonable time,
\nnot to exceed 5 days, after written notice thereof.<\/p>\n
9.1.6. This Agreement may be terminated prior to the Closing, by
\nInfoTouch, if there has been a breach by NetSelect of any representation,
\nwarranty, covenant or agreement set forth in this Agreement on the part of
\nNetSelect, or if any representation or warrant of NetSelect shall have become
\nuntrue, in either case, which NetSelect fails to cure within a reasonable time,
\nnot to exceed 5 days, after written notice thereof.<\/p>\n
Any termination of this Agreement under this Section 9.1 will be
\neffective by the delivery of notice of the terminating party to the other party
\nhereto.<\/p>\n
9.2 No Liability. Any termination of this Agreement pursuant to this
\nSection 9 will be without further obligation or liability upon any party in
\nfavor of the other party hereto, provided, however, that nothing herein will
\nlimit the obligation of NetSelect and InfoTouch to use their best efforts (prior
\nto termination of this Agreement) to cause the Merger to be consummated, as set
\nforth in Sections 4.10 and 5.5 hereof, respectively.<\/p>\n
10. Survival of Representations and Warranties; Indemnification<\/p>\n
10.1 Survival of Representations. All representations and warranties
\nof InfoTouch contained in this Agreement or in any other agreement, document or
\ncertificate delivered in connection with the Merger will remain operative and in
\nfull force and effect, regardless of any investigation made or knowledge
\nacquired by or on behalf of the parties to this Agreement, until the earlier of
\n(i) the closing of an <\/p>\n
34<\/p>\n
underwritten registered public offering of shares of Surviving Company Common
\nStock under the Securities Act, or (ii) the earlier of (x) the date upon which
\nthe Surviving Company’s auditors deliver to the Surviving Company the audited
\nconsolidated financial statements of the Surviving Company for the 1998 fiscal
\nyear, or (y) June 30, 1999; provided that any claim based upon fraud or
\nintentional misrepresentation shall survive the Closing Date for the applicable
\nstatutory limitations period and shall otherwise not be limited to the Escrow
\nShares. The covenants and agreements contained in this Agreement or in any other
\ndocument or certificate delivered in connection with the Merger which are to be
\nperformed after the Closing Date shall survive the Closing Date and shall
\ncontinue until all obligations with respect thereto shall have been performed or
\nsatisfied or shall have been terminated in accordance with their terms. All
\nrepresentations and warranties of NetSelect contained in this Agreement or in
\nany other agreement, document or certificate delivered in connection with the
\nMerger will remain operative and in full force and effect until the earlier of
\nthe Closing or the termination of this Agreement, after which time all such
\nrepresentations and warranties will expire; provided that any claim based upon
\nfraud or intentional misrepresentation shall survive the Closing Date for the
\napplicable statutory limitations period.<\/p>\n
10.2 Agreement to Indemnify. Subject to the limitations set forth in
\nthis Section 10, InfoTouch will indemnify, defend and hold harmless, each
\nNetSelect Stockholder (hereinafter referred to individually as an “Indemnified
\nPerson” and collectively as “Indemnified Persons”) from and against any and all
\nclaims, demands, actions, causes of actions, losses, costs, damages, liabilities
\nand expenses including, without limitation, reasonable legal fees and costs
\n(hereinafter referred to as “Damages”), arising out of any inaccuracy,
\nmisrepresentation or breach of or default in connection with any of the
\nrepresentations, warranties and covenants given or made by InfoTouch in this
\nAgreement, the InfoTouch Disclosure Schedule or any agreement, certificate,
\ndocument or instrument delivered by or on behalf of InfoTouch pursuant hereto.<\/p>\n
10.3 Indemnification Procedure. In seeking indemnification for
\nDamages under Section 10.2 hereof, the Indemnified Persons, acting through the
\nN\/S Representatives, shall only exercise their remedies with respect to the
\nEscrow Shares; and no such claim for Damages will be asserted after the
\nexpiration of the Escrow Period. Except for liability based on a claim of fraud
\nor intentional misrepresentation, or liabilities or damages of NetSelect
\ndescribed in Section 9.2 hereof in connection with the termination of the
\nAgreement prior to the Closing, (x) the Surviving Company shall have no
\nliability to an Indemnified Person under this Agreement, except to the extent of
\nthe Escrow Shares and any other assets deposited under the Escrow Agreement, (y)
\nthe remedies set forth in this Section 10 shall be the exclusive remedies of the
\nNetSelect Stockholders and the other Indemnified Persons under this Agreement
\nagainst the Surviving Company, and (z) the Indemnified Persons shall act only
\nthrough the N\/S Representative as provided in the Escrow Agreement. The
\nindemnification provided in this Section 10 shall not apply until the aggregate
\nDamages for which such Indemnified <\/p>\n
35<\/p>\n
Persons would be otherwise entitled to receive indemnification exceed $100,000
\n(the “Threshold”). Once such aggregate Damages exceed the Threshold, such
\nIndemnified Parties shall be entitled to indemnification for the aggregate
\namount of all Damages to the extent such Damages exceed the Threshold.<\/p>\n
11. Post Closing Covenants of the Parties.<\/p>\n
11.1 Merger of Surviving Company and NS LLC. The Surviving Company
\nagrees that it will use its best efforts to consummate LLC Merger as soon as
\npossible after the Closing Date pursuant to the terms and conditions of the LLC
\nMerger Agreement. NetSelect and InfoTouch each agree to cooperate fully with
\nthe other and to execute, deliver and\/or file such further instruments,
\ndocuments and agreements and to give such further written assurances, and to
\ntake any other action as may be reasonably requested by any other party to
\nevidence, reflect and effect the LLC Merger described herein and contemplated
\nhereby and to carry into effect the intent and purpose of the LLC Merger
\nAgreement.<\/p>\n
11.2 Redemption of Certain InfoTouch Stockholders. The Surviving
\nCompany and the Redeeming Stockholders (defined in Recital C hereof) who execute
\nand deliver the Redemption Agreement agree to use their best efforts to
\nconsummate, as soon as is practicable after the Closing Date, the InfoTouch
\nRedemption under the terms of the Stock Redemption Agreement. InfoTouch and
\neach Redeeming Stockholder agree to cooperate fully with the other and to
\nexecute, deliver and\/or file such further instruments, documents and agreements
\nand to give such further written assurances, and to take any other action as may
\nbe reasonably requested by any other party to evidence, reflect and effect the
\nrepurchase of the Surviving Company Common Stock pursuant to the Stock
\nRedemption Agreement.<\/p>\n
12. MISCELLANEOUS<\/p>\n
12.1 Governing Law; Consent to Jurisdiction. The internal laws of
\nthe State of Delaware (irrespective of its choice of law principles) will govern
\nthe validity of this Agreement, the construction of its terms, and the
\ninterpretation and enforcement of the rights and duties of the parties hereto.
\nThe parties agree that, except for indemnity claims covered under the Escrow
\nAgreement, all actions or proceedings arising in connection with this Agreement
\nshall be tried and litigated exclusively in the state and federal courts located
\nin the County of Los Angeles, state of California, and each party hereby
\nstipulates that the state and federal courts located in the County of Los
\nAngeles, state of California shall have in personal jurisdiction and venue over
\neach such party for the purpose or litigating any dispute, controversy or
\nproceeding arising out of or related to this Agreement.<\/p>\n
12.2 Assignment; Binding Upon Successors and Assigns. No party
\nhereto may assign any of its rights or obligations hereunder without the prior
\nwritten <\/p>\n
36<\/p>\n
consent of the other party hereto; provided that NetSelect may assign this
\n ——–
\nAgreement in connection with a merger or consolidation of NetSelect or the sale
\nof all or substantially all of its assets. This Agreement will be binding upon
\nand inure to the benefit of the parties hereto and their respective successors
\nand permitted assigns.<\/p>\n
12.3 Severability. If any provision of this Agreement, or the
\napplication thereof, will for any reason and to any extent be invalid or
\nunenforceable, the remainder of this Agreement and application of such provision
\nto other persons or circumstances will be interpreted so as reasonably to effect
\nthe intent of the parties hereto. The parties further agree to replace such
\nvoid or unenforceable provision of this Agreement with a valid and enforceable
\nprovision that will achieve, to the extent possible, the economic, business and
\nother purposes of the void or unenforceable provision.<\/p>\n
12.4 Counterparts. This Agreement may be executed in any number of
\ncounterparts, each of which will be an original as regards any party whose
\nsignature appears thereon and all of which together will constitute one and the
\nsame instrument. This Agreement will become binding when one or more
\ncounterparts hereof, individually or taken together, will bear the signatures of
\nthe parties reflected hereon as signatories.<\/p>\n
12.5 Other Remedies. Except as otherwise provided herein, any and all
\nremedies herein expressly conferred upon a party will be deemed cumulative with
\nand not exclusive of any other remedy conferred hereby or by law on such party,
\nand the exercise of any one remedy will not preclude the exercise of any other.<\/p>\n
12.6 Amendment and Waivers. Any term or provision of this Agreement
\nmay be amended, and the observance of any term of this Agreement may be waived
\n(either generally or in a particular instance and either retroactively or
\nprospectively) only by a writing signed by the party to be bound thereby. The
\nwaiver by a party of any breach hereof or default in the performance hereof will
\nnot be deemed to constitute a waiver of any other default or any succeeding
\nbreach or default. The Agreement may be amended by the parties hereto at any
\ntime before or after the NetSelect Stockholder Approval or the InfoTouch
\nStockholder Approval, but, after such approval, no amendment will be made which
\nby applicable law requires the further approval of the NetSelect Stockholders or
\nInfoTouch Stockholders without obtaining such further approval.<\/p>\n
12.7 No Waiver. The failure of any party to enforce any of the
\nprovisions hereof will not be construed to be a waiver of the right of such
\nparty thereafter to enforce such provisions.<\/p>\n
12.8 Expenses. Each party will bear its respective expenses and legal
\nfees incurred with respect to this Agreement and the transactions contemplated
\nhereby; <\/p>\n
37<\/p>\n
provided, however, that the InfoTouch will bear the fees and expenses of Troop,
\nMeisinger, Steuber & Pasich LLP, special counsel to InfoTouch.<\/p>\n
12.9 Attorneys’ Fees. Should suit be brought to enforce or interpret
\nany part of this Agreement, the prevailing party will be entitled to recover, as
\nan element of the costs of suit and not as damages, reasonable attorneys’ fees
\nto be fixed by the court (including without limitation, costs, expenses and fees
\non any appeal). The prevailing party will be entitled to recover its costs of
\nsuit, regardless of whether such suit proceeds to final judgment.<\/p>\n
12.10 Notices. Any notice or other communication required or
\npermitted to be given under this Agreement will be in writing and will be
\ndelivered personally, by facsimile, by nationally reputable overnight courier
\nservice or by registered or certified mail, postage prepaid, and will be deemed
\ngiven upon delivery, if delivered personally, upon mechanical confirmation of
\nreceipt, if delivered by facsimile, the next following business day, if by
\novernight courier, or three days after deposit in the mails, if mailed, to the
\nfollowing addresses:<\/p>\n
(i) If to NetSelect:<\/p>\n
NetSelect, Inc.
\n 225 W. Hillcrest Drive, Suite 100
\n Thousand Oaks, California 91360
\n Attention: Chief Executive Officer
\n Telecopy no: 805-557-2680<\/p>\n
with a copy to<\/p>\n
Mark C. Stevens
\n Fenwick & West LLP
\n Two Palo Alto Square
\n Palo Alto, California 94306
\n Telecopy no.: 650-494-1417<\/p>\n
(ii) If to InfoTouch or the Surviving Company:<\/p>\n
InfoTouch Corporation
\n 225 W. Hillcrest Drive, Suite 100
\n Thousand Oaks, California 91360
\n Attention: President
\n Telecopy no: 805-557-2680<\/p>\n
With a copy to:<\/p>\n
38<\/p>\n
Troop, Steuber, Pasich, Reddick & Tobey LLP
\n 2029 Century Park East
\n 24th Floor
\n Los Angeles, CA 90067
\n Attn: Scott Galer, Esq.
\n Fax No. (310) 728-2200<\/p>\n
or to such other address as a party may have furnished to the other parties in
\nwriting pursuant to this Section 12.10.<\/p>\n
12.11 Construction of Agreement. This Agreement has been negotiated
\nby the respective parties hereto and their attorneys and the language hereof
\nwill not be construed for or against either party. A reference to a Section or
\nan Exhibit will mean a Section in, or Exhibit to, this Agreement unless
\notherwise explicitly set forth. The titles and headings herein are for reference
\npurposes only and will not in any manner limit the construction of this
\nAgreement which will be considered as a whole.<\/p>\n
12.12 No Joint Venture. Nothing contained in this Agreement will be
\ndeemed or construed as creating a joint venture or partnership between any of
\nthe parties hereto. Except as otherwise expressly set forth herein, no party is
\nby virtue of this Agreement authorized as an agent, employee or legal
\nrepresentative of any other party. No party will have the power to control the
\nactivities and operations of any other and their status is, and at all times,
\nwill continue to be, that of independent contractors with respect to each other.
\nNo party will have any power or authority to bind or commit any other. No party
\nwill hold itself out as having any authority or relationship in contravention of
\nthis Section.<\/p>\n
12.13 Further Assurances. Each party agrees to cooperate fully with
\nthe other parties and to execute such further instruments, documents and
\nagreements and to give such further written assurances as may be reasonably
\nrequested by any other party to evidence and reflect the transactions described
\nherein and contemplated hereby and to carry into effect the intents and purposes
\nof this Agreement.<\/p>\n
12.14 Absence of Third Party Beneficiary Rights. No provisions of
\nthis Agreement are intended, nor will be interpreted, to provide or create any
\nthird party beneficiary rights or any other rights of any kind in any client,
\ncustomer, affiliate, stockholder, partner or any party hereto or any other
\nperson or entity unless specifically provided otherwise herein, and, except as
\nso provided, all provisions hereof will be personal solely between the parties
\nto this Agreement.<\/p>\n
12.15 Confidentiality. The parties hereto recognize that they have
\nreceived and will receive confidential information concerning the other during
\nthe course of the Merger negotiations and preparations, including but not
\nlimited to the terms of this Agreement, the Merger and the other agreements to
\nbe executed in <\/p>\n
39<\/p>\n
connection with the Merger and information and disclosures contained in the
\nInformation Statement. Accordingly, the parties each agree (a) to use its
\nrespective best efforts to prevent the unauthorized disclosure of any
\nconfidential information concerning the other that was or is disclosed during
\nthe course of such negotiations and preparations, and is clearly designated in
\nwriting as confidential at the time of disclosure, and (b) to not make use of or
\npermit to be used any such confidential information other than for the purpose
\nof effectuating the Merger and related transactions. The obligations of this
\nsection will not apply to information that (i) is or becomes part of the public
\ndomain, (ii) is disclosed by the disclosing party to third parties without
\nrestrictions on disclosure, (iii) is received by the receiving party from a
\nthird party without breach of a nondisclosure obligation to the other party or
\n(iv) the disclosing party reasonably believes is required to be disclosed by
\nlaw. If this Agreement is terminated, all copies of documents containing
\nconfidential information shall be returned by the receiving party to the
\ndisclosing party.<\/p>\n
12.16 Entire Agreement. This Agreement and the exhibits hereto
\nconstitute the entire understanding and agreement of the parties hereto with
\nrespect to the subject matter hereof and supersede all prior and contemporaneous
\nagreements or understandings, inducements or conditions, express or implied,
\nwritten or oral, between the parties with respect hereto. The express terms
\nhereof control and supersede any course of performance or usage of the trade
\ninconsistent with any of the terms hereof.<\/p>\n
[Execution Page Follows]<\/p>\n
40<\/p>\n
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
\nthe date first above written.<\/p>\n
“NetSelect” “InfoTouch”<\/p>\n
NETSELECT, INC. INFOTOUCH CORPORATION<\/p>\n
By: \/s\/ Stuart Wolff By: \/s\/ Richard Janssen
\n —————————- —————————————<\/p>\n
Its: Chief Executive Officer Its: President and Chief Executive Officer
\n ————————— ————————————–<\/p>\n
41<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7788],"corporate_contracts_industries":[9486],"corporate_contracts_types":[9622,9626],"class_list":["post-43097","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-homestorecom-inc","corporate_contracts_industries-real__agents","corporate_contracts_types-planning","corporate_contracts_types-planning__merger"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43097","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43097"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43097"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43097"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43097"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}