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8-K
EXHIBIT 10.1
AGREEMENT AND PLAN OF
MERGER
by and among
DOCUCON INCORPORATED,
DOCUCON ACQUISITIONS CORP.
and
My EDGAR Inc.
dated as of
December 13, 2007
TABLE OF CONTENTS
Page
ARTICLE I.
DEFINITIONS
ARTICLE II.
MERGER
Section 2.01
The Merger
Section 2.02
Effective Time
Section 2.03
Closing
Section 2.04
Effect
of the Merger
ARTICLE III.
EFFECT ON THE CAPITAL
STOCK
Section 3.01
Conversion of Capital Stock
Section 3.02
Issuance
of Merger Consideration
ARTICLE IV.
REPRESENTATIONS AND
WARRANTIES OF THE COMPANY
Section 4.01
Organization, Good Standing and Authority
Section 4.02
Certificate of Incorporation; By-laws; Minute Books
Section 4.03
Due
Authorization; Execution and Delivery
Section 4.04
Title to
Shares; Capitalization, etc.
Section 4.05
Subsidiaries
Section 4.06
SEC
Reports; Financial Statements
Section 4.07
Liabilities
Section 4.08
Absence
of Certain Changes
Section 4.09
Consents; No Conflict
Section 4.10
Issuance
of Shares
Section 4.11
Contracts
Section 4.12
Real
Property
Section 4.13
Assets
Section 4.14
Governmental Approvals and Authorizations and Compliance with
Laws
Section 4.15
Tax
Matters
Section 4.16
Litigation
Section 4.17
Intellectual Property
Section 4.18
Employees; Labor Matters, etc.
Section 4.19
Employee
Benefit Plans
Section 4.20
Affiliate Transactions
Section 4.21
Insurance
Section 4.22
Environmental Matters
Section 4.23
Registration Rights
Section 4.24
Internal
Accounting Controls
Section 4.25
Sarbanes-Oxley Act
Section 4.26
Application of Takeover Protections
Section 4.27
No Prior
Activities
Section 4.28
Brokerage and Finder’s Fee
Section 4.29
Other
Information
ARTICLE V.
REPRESENTATIONS AND
WARRANTIES OF THE COMPANY
Section 5.01
Organization, Good Standing and Authority
Section 5.02
Due
Authorization
Section 5.03
Consents; No Conflict
Section 5.04
Brokerage and Finder’s Fee
i
Section 5.05
No
Litigation
Section 5.06
Compliance with Laws
ARTICLE VI.
COVENANTS
Section 6.01
Information Prior to Closing
Section 6.02
Conduct
of Business Prior to Closing
Section 6.03
Third-Party Consents
Section 6.04
Publicity
Section 6.05
Consummation of the Transactions
Section 6.06
Further
Assurances; Filings
ARTICLE VII.
ADDITIONAL AGREEMENTS
Section 7.01
Expenses
Section 7.02
Survival
of Representations and Warranties
Section 7.03
Certain
Tax Matters
Section 7.04
Resignations; Officers and Directors
ARTICLE VIII.
MISCELLANEOUS
Section 8.01
Notices
Section 8.02
Parties
in Interest
Section 8.03
No Third
Party Beneficiaries
Section 8.04
Governing Law; Waiver of Jury Trial
Section 8.05
Submissions to Jurisdiction
Section 8.06
Assignment
Section 8.07
Amendment; Waivers, etc.
Section 8.08
Severability
Section 8.09
Headings
Section 8.10
Entire
Agreement
Section 8.11
Construction
Section 8.12
Counterparts
SCHEDULES
Schedule 4.01
Organization and Foreign Qualifications
Schedule 4.04
Capital
Stock, Options and Warrants and Anti-Dilution Provisions
Schedule 4.05
Owned
Interests
Schedule 4.07
Liabilities
Schedule 4.08
Material
Changes
Schedule 4.09
Consents
and Conflicts
Schedule 4.11
Material
Contracts
Schedule 4.12
Leased
Premises
Schedule 4.13
Assets
Schedule 4.16
Litigation
Schedule 4.17
Owned
and Licensed Intellectual Properties
Schedule 4.18(a)
Directors, Officers and Employees
Schedule 4.18(b)
Employment Agreements
ii
Schedule 4.20
Affiliate Transactions
Schedule 4.21
Insurance
Schedule 4.23
Registration Rights
Schedule 5.03
Company
Consents and Conflicts
Schedule 7.01
Expenses
iii
This AGREEMENT AND PLAN OF MERGER, dated as of December 13, 2007
(this “ Agreement ”), is entered into by and
among DOCUCON INCORPORATED, a Delaware corporation (the “
Parent ”), DOCUCON ACQUISITIONS CORP., a Delaware
corporation and a wholly owned subsidiary of the Parent
(“Merger Sub”) and MY EDGAR, INC., a Florida
corporation (the “ Company ”). Each of the
parties to this Agreement is referred to herein individually as a
“ Party ” and any two or more of them, as the
“ Parties ”.
W I T N E S S E T
H:
WHEREAS,
the respective Boards of Directors of the Parent, Merger Sub and
the Company have determined that it is in the best interests of
each such corporation and its respective shareholders, and declared
it advisable, to enter into this Agreement providing for the merger
of Merger Sub with and into the Company, with the Company as the
surviving corporation (the “ Merger ”) upon the
terms and subject to the conditions set forth herein; and
WHEREAS,
it the intention of the Parties that the Merger shall qualify as a
tax-free reorganization under Section 368(a) of the Internal
Revenue Code of 1986, as amended (the “ Code ”);
and the issuance of the shares of capital stock in connection with
the Merger shall qualify as a transaction in securities exempt from
registration or qualification under the Securities Act of 1933,
amended (the “ 1933 Act ”), and under the
applicable securities laws of the states or jurisdictions where the
shareholders reside.
NOW, THEREFORE, in
consideration of the foregoing and the mutual covenants and
agreements contained herein, the Parties hereto agree as
follows:
ARTICLE I.
DEFINITIONS
For
purposes of this Agreement, the following words and phrases have
the following meanings:
“1933 Act” is defined in the preamble to this
Agreement.
“1934 Act” means the Securities Exchange Act of 1934,
as amended.
“Action” is defined in Section 4.16 .
“Affiliate” of a Person means a Person that directly or
indirectly through one or more intermediaries, controls, is
controlled by, or is under common control with, the first Person.
“Affiliate Transactions” is defined in Section
4.20 .
“Applicable Law” means all applicable provisions of all
( a ) constitutions, treaties, statutes, laws (including,
but not limited to, the common law), rules, regulations,
ordinances, codes or orders of any Governmental Authority and (
b ) orders, decisions, injunctions, judgments, awards and
decrees or consents of or agreements with any Governmental
Authority.
“Assets” means all rights, titles and interest in, to
and under all of the properties, assets, rights, claims and
contracts of every kind, character and description owned or held by
the Parent or Merger Sub whether real, personal or mixed, tangible
or intangible (including goodwill), and whether now owned or
hereafter acquired, including, without limitation, all assets
reflected on the [September 30] Balance Sheet, as the same may
exist on the Closing Date.
“Business Days” means any day except a Saturday,
Sunday or any other day on which banks are required or authorized
to be closed in New York, New York.
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“Capital Stock” means ( a ) with respect
to any Person that is a corporation, any and all
shares, interests, participations, rights or
other equivalents (however designated) of corporate stock and (
b ) with respect to any other Person, any and all
partnership or other equity interests of such Person.
“Certificate of Merger” is defined in Section
2.02 .
“Closing” is defined in Section 2.03 .
“Closing Date” is defined in Section 2.03 .
“Code” is defined in the Preamble to this
Agreement.
“Company” is defined in the preamble to this
Agreement.
“Company Common Stock” means the Common Stock of the
Company, par value $0.0001 per share.
“Control” (including the terms “controlled
by” and “under common control with”) means the
possession, directly or indirectly, of the power to direct or cause
the direction of the management policies of a Person, whether
through the ownership of voting securities, by contract, as trustee
or executor, or otherwise.
“Effective Time” is defined in Section 2.02
.
“Employees” means, collectively, each individual
employed by Parent or any of its Subsidiaries and the beneficiaries
and dependents of such individual.
“Environmental Law” means any foreign, federal, state
or local law, statute, regulation, rule, ordinance, decree, or any
other requirement of law (including common law) regulating or
relating to the protection of human health and safety or the
environment, including, but not limited to, laws relating to
releases or threatened releases of Hazardous Materials into the
environment.
“Financial Statements” are defined in Section
4.06 .
“GAAP” is defined in Section 4.06 .
“GCL” means the General Corporation Law of the State of
Delaware.
“Governmental Approvals” is defined in Section
4.14 .
“Governmental Authority” means any nation or
government, any state or other political subdivision thereof, any
entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government, including,
but not limited to, any government authority, agency, department,
board, commission or instrumentality of the United States, any
State of the United States, or any political subdivision thereof,
and any tribunal or arbitrator(s) of competent jurisdiction, and
any self-regulatory organization.
“Hazardous Materials” means any substance or material
that is classified or regulated as “hazardous” or
“toxic” pursuant to any Environmental Law, including,
without limitation, asbestos, polychlorinated biphenyls, petroleum
products or by-products, and urea-formaldehyde insulation.
“Income Taxes” means any Taxes imposed on the privilege
of doing business in any jurisdiction, any franchise Taxes and any
Taxes based on or measured by gain, income, profits, gross earnings
or receipts, net worth, capital, stock or similar items.
“Intellectual Property” means United States and foreign
trademarks, service marks, trade names, trade dress, copyrights,
and similar rights, including registrations and applications to
register or renew the registration of any of the foregoing, United
States and foreign letters patent and patent applications, and
inventions, processes,
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designs, formulae, trade secrets, know-how, confidential
information, computer software, Internet domain names, data and
documentation, and all similar intellectual property rights,
tangible embodiments of any of the foregoing (in any medium
including electronic media), and licenses of any of the
foregoing.
“Intellectual Property Licenses” is defined in
Section 4.17(a) .
“IRS” means the Internal Revenue Service.
“Balance Sheet” means the balance sheet contained in
the Financial Statements as of September 30, 2007.
“Knowledge” a Party will be deem to have
“Knowledge” ( a ) if any officer of such Party
is actually aware of such fact or matter or ( b ) if any
officer of such Party upon the exercise of due inquiry would be
expected to be aware of such fact or matter. For purposes of the
representations and warranties contained in Section 4 hereof, from
the period beginning on September 1, 2007 through the date hereof,
“Knowledge” shall include Brian Balbirnie and shall
exclude Robert Schwartz.
“Leased Premises” is defined in Section 4.12
.
“Lien” means any charge, claim, community property
interest, condition, equitable interest, lien, option, pledge,
security interest, right of first refusal, or restriction of any
kind, including any restriction on use, voting, transfer (other
than restrictions imposed by applicable federal or state securities
laws), receipt of income, or exercise of any other attribute of
ownership.
“Material Adverse Change” or “Material Adverse
Effect” means any act, circumstance or event that is material
and adverse to ( a ) the financial condition or results of
operations of the Parent and its Subsidiaries, taken as a whole, (
b ) the validity or enforceability of this Agreement or (
c ) the ability of the Parent or Merger Sub to perform its
obligations hereunder, other than any effect, circumstance or
change resulting from ( i ) general economic or political
conditions, events, circumstances or developments or changes
therein, ( ii ) the public announcement of this Agreement
and the transactions contemplated hereby, including any ( A
) actions of competitors, ( B ) actions taken by or losses
of employees or ( C ) delays or cancellations of orders for
products or services; ( iii ) the performance by the Parent
or Merger Sub of its obligations pursuant to this Agreement; (
iv ) any changes in Applicable Laws or any accounting
regulations or principles; or ( v ) any acts of God, war
(whether or not declared) or terrorism, except to the extent such
event has a disproportionate effect on the Parent or Merger
Sub.
“Material Contracts” is defined in Section
4.11(a) .
“Merger” is defined in the preamble to this
Agreement.
“Merger Consideration” is defined in Section
3.01(b) .
“Merger Sub” is defined in the preamble to this
Agreement.
“Merger Sub Common Stock” means the Common Stock of
Merger Sub, par value $[0.0001] per share.
“Owned Intellectual Property” is defined in Section
4.17(a) .
“Parent” is defined in the preamble to this
Agreement.
“Parent Common Stock” means the Common Stock of the
Parent, without par value.
“Party” or “Parties” is defined in the
preamble to this Agreement.
“Person” means an individual, corporation, partnership,
limited liability company, associations, trust or other entity or
organization, including a Governmental Authority.
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“Real Property Leases” is defined in Section
4.12 .
“Returns” means any returns, reports, declarations or
forms required to be filed with any Governmental Authority.
“SEC” means the United States Securities and Exchange
Commission.
“SEC Reports” is defined in Section 4.06 .
“Shares” means the shares of Parent Common Stock to be
issued as the Merger Consideration in exchange for the outstanding
shares of the Company Common Stock.
“Subsidiary” means each corporation or other Person in
which a Person owns or controls, directly or indirectly, capital
stock or other equity interests representing more than 50% of the
outstanding voting stock or other equity interests.
“Surviving Corporation” is defined in Section
2.01 .
“Tax” means any federal, state, local, foreign or other
income, alternative, minimum, accumulated earnings, personal
holding company, franchise, capital stock, net worth, capital,
profits, windfall profits, gross receipts, value added, sales
(including, but not limited to, bulk sales), use, goods and
services, excise, customs duties, transfer, conveyance, mortgage,
registration, stamp, documentary, recording, premium, severance,
environmental (including, but not limited to, taxes under section
59A of the Code), real property, personal property, ad valorem,
intangibles, rent, occupancy, license, occupational, employment,
unemployment insurance, social security, disability, workers’
compensation, payroll, health care, utility, withholding, estimated
or other similar tax, duty or other governmental charge or
assessment or deficiencies thereof, including, but not limited to,
all interest and penalties thereon and additions thereto whether
disputed or not.
“Tax Return” means any Return with respect to
Taxes.
“Transaction Documents” means this Agreement any
other agreement, document, instrument or certificate entered into
or delivered, now or in the future by the Parent, Merger Sub or the
Company in connection with this Agreement or any of the other
Transaction Documents.
“Treasury Regulations” are the regulations prescribed
under the Code.
ARTICLE II.
THE MERGER
Section 2.01
The Merger . Subject to the provisions of this
Agreement, at the Effective Time, Merger Sub shall be merged with
and into the Company, and the separate corporate existence of
Merger Sub shall cease and the Company shall be the surviving
corporation in the Merger (the “ Surviving Corporation
”).
Section 2.02
Effective Time . Subject to the provisions of this
Agreement, as early as practicable on the Closing Date, the Company
shall file a certificate of merger (the “ Certificate of
Merger ”) with the Secretary of State of the State of
Delaware, in such form as required by the GCL, and the Merger shall
thereupon become effective (the “ Effective Time
”).
Section 2.03
Closing . The closing of the transactions contemplated
by this Agreement (the “ Closing ”) shall take
place via teleconference, email and facsimile, on the date of this
Agreement or such other date as the Parties may mutually determine
and on which the Closing actually occurs (the “ Closing
Date ”).
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Section 2.04
Effect of the Merger .
(a)
At the
Effective Time, ( i ) the Certificate of Incorporation of
the Company in effect immediately prior to the Effective Time shall
be the Certificate of Incorporation of the Surviving Corporation;
and ( ii ) the By-laws of the Company in effect immediately
prior to the Effective Time shall be the By-laws of the Surviving
Corporation.
(b)
At and
after the Effective Time, title to all property, rights,
privileges, immunities, powers and franchises of the Company and
Merger Sub shall vest in the Surviving Corporation and all debts,
liabilities and duties of the Company and Merger Sub shall become
the debts, liabilities and duties of the Surviving Corporation.
(c)
Immediately after the Effective Time, the members of the Board of
Directors of the Company shall be the directors of the Surviving
Corporation.
(d)
Immediately after the
Effective Time, the officers of the Company shall be the officers
of the Surviving Corporation.
ARTICLE III.
EFFECT ON THE CAPITAL STOCK
Section 3.01
Conversion of Capital Stock . As of the Effective
Time, by virtue of the Merger and without any action on the part of
the holders of any Capital Stock of the Company or the Capital
Stock of Merger Sub:
(a)
Capital Stock of Merger Sub . Each issued and
outstanding share of Merger Sub Common Stock shall be converted
into and become one fully paid and nonassessable share of Common
Stock of the Surviving Corporation.
(b)
Capital Stock of the Company . Each issued and
outstanding share of Company Common Stock shall be converted into
the right to receive one share of the Parent Common Stock (the
“ Merger Consideration ”). Any shares of
Company Common Stock held as treasury shares shall be canceled and
not be converted into the right to receive any consideration.
Section 3.02
Issuance of Merger Consideration . Upon surrender of a
stock certificate representing shares of Company Common Stock to
the Parent following the Effective Time, the holder of such shares
shall be entitled to receive immediately in exchange therefore, the
Merger Consideration for each share of Company Common Stock
represented by such stock certificate.
ARTICLE IV.
REPRESENTATIONS AND
WARRANTIES
OF THE PARENT AND NEWCO
The
Parent and Merger Sub hereby, jointly and severally, represent and
warrant to the Company:
Section 4.01
Organization, Good Standing and Authority . Each
of the Parent and Merger Sub is duly organized, validly existing
and in good standing under the laws of the State of Delaware.
Each of the Parent and Merger Sub is duly qualified to do
business as a foreign corporation in the jurisdictions set forth in
Schedule 4.01 . The failure of the Parent or Merger
Sub to qualify as a foreign corporation in any jurisdiction in
which it is not currently qualified would not have a Material
Adverse Effect. Each of the Parent and Merger Sub has all
corporate power and authority to own the properties and assets
owned by it, to lease the properties and assets leased by it and to
carry on the operation of its business as it is now being
conducted.
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Section 4.02
Certificate of Incorporation; By-laws; Minute Books .
True and complete copies of the Certificate of Incorporation
and By-laws (or comparable organizational documents) of each of the
Parent and Merger Sub, as amended to and including the date hereof,
have been delivered to the Company. Neither the Parent nor
Merger Sub is in violation of any provision of its Certificate of
Incorporation or is in material violation of its By-laws.
Section 4.03
Due Authorization, Execution and Delivery . Each of
the Parent and Merger Sub has the requisite corporate power and
authority to enter into and to consummate the transactions
contemplated by this Agreement and each of the other Transaction
Documents to which it is a party and otherwise to carry out its
obligations hereunder and thereunder. The execution and
delivery of this Agreement and each of the other Transaction
Documents by each of the Parent and Merger Sub and the consummation
by it of the transactions contemplated hereunder and thereunder
have been duly authorized by all necessary action on the part of
the Parent and Merger Sub and no further consent or action is
required by the Parent or Merger Sub, their Boards of Directors or
their shareholders in connection therewith. This Agreement
and each of the other Transaction Documents to which it is a party
has been duly executed by the Parent and Merger Sub, as the case
may be, and constitutes the valid and binding obligation of such
Party enforceable against it in accordance with its terms, except
as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, liquidation, or similar
laws relating to, or affecting generally the enforcement of
creditors’ rights and remedies or by other equitable
principles of general application.
Section 4.04
Title to Shares; Capitalization, etc .
(a)
The
aggregate number of shares and type of all authorized, issued and
outstanding capital stock, options and other securities of the
Parent (whether or not presently convertible into or exercisable or
exchangeable for shares of capital stock of the Parent) is set
forth in Schedule 4.04 . All outstanding shares
of capital stock of the Parent are duly authorized, validly issued,
fully paid and nonassessable and have been issued in compliance
with all applicable securities laws. No securities of the
Parent are entitled to preemptive or similar rights, and no Person
has any right of first refusal, preemptive right, right of
participation, or any similar right to participate in the
transactions contemplated by the Transaction Documents.
Except as disclosed in Schedule 4.04 , there are
no outstanding options, warrants, script rights to subscribe to,
calls or commitments of any character whatsoever relating to, or
securities, rights or obligations convertible into or exchangeable
for, or giving any Person any right to subscribe for or acquire,
any shares of Capital Stock of the Parent, or contracts,
commitments, understandings or arrangements by which the Parent or
Merger Sub is or may become bound to issue additional shares of
Capital Stock of the Parent, or securities or rights convertible or
exchangeable into shares of Capital Stock of the Parent. There are
no outstanding contractual or other rights or obligations to or of
the Parent to repurchase, redeem or otherwise acquire any of its
outstanding shares or other equity interests or restricting the
ability to vote or transfer such shares or other equity interests.
Except as set forth in Schedule 4.04 and except
for customary adjustments as a result of stock dividends, stock
splits, combinations of shares, reorganizations, recapitalizations,
reclassifications or other similar events, there are no
anti-dilution or price adjustment provisions contained in any
security issued by the Parent (or in any agreement providing rights
to security holders), and the issuance of the Shares will not
obligate the Parent to issue shares of Parent Common Stock or other
securities to any Person and will not result in a right of any
holder of the Parent’s securities to adjust the exercise,
conversion, exchange or reset price under such securities. To
the knowledge of the Parent, except as specifically disclosed in
its SEC Reports, no Person or group of related Persons beneficially
owns (as determined pursuant to Rule 13d-3 under the 1934
Act), or has the right to acquire, by agreement with or by
obligation binding upon the Parent, beneficial ownership of in
excess of 5% of the outstanding Parent Common Stock.
(b)
The
Parent owns, beneficially and of record, all of the issued and
outstanding shares of Merger Sub Common Stock, free and clear of
any Liens. The issued and outstanding shares of the Merger
Sub and each of the Parent’s Subsidiaries have been duly
authorized and validly issued and are fully paid and nonassessable.
Section 4.05
Subsidiaries . The Parent does not have direct or
indirect Subsidiaries other than Merger Sub. Except as
disclosed on Schedule 4.05 , neither Parent nor Merger Sub
owns, directly or indirectly, any shares of capital stock or other
equity interest (or any other interest convertible into an equity
interest) in any corporation, partnership, joint venture,
association or other entity, and has no commitment to contribute to
the capital of, ma
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