3rd Amendment to Agreement and Plan of Merger



Exhibit 10.9 
US SEARCH.COM INC. 
 
THIRD AMENDMENT 
 
TO 
 
AGREEMENT
AND PLAN OF MERGER DATED AS OF DECEMBER 28, 2001 
 
THIS THIRD AMENDMENT TO AGREEMENT AND PLAN OF MERGER DATED AS OF DECEMBER 28, 2001 (this “Amendment”) is entered into as of April 30, 2003, by and among US Search.com Inc., a Delaware corporation (the
“Company”), Professional Resource Screening, Inc., a Delaware corporation (“PRSI”), and Irwin R. Pearlstein, an individual, David Pearlstein, an individual, and Cheryl Pearlstein-Enos, an individual (the
“Shareholders”). 
 
R E C I T A
L S 
 
WHEREAS, Professional Resource
Screening, Inc., a California corporation, merged with and into US SEARCH Screening Services, Inc., a Delaware corporation, which is therefore the successor in interest to Professional Resource Screening, Inc., a California corporation;

 
WHEREAS, US SEARCH Screening Services, Inc., a
Delaware corporation, changed its name to Professional Resource Screening, Inc.; 
 
WHEREAS, the parties to this Amendment are parties to that certain Agreement and Plan of Merger, dated as of December 28, 2001 (the “Agreement”); 
 
WHEREAS, on December 26, 2002, Company sent the Shareholders a
Balance Sheet Adjustment Demand as that term is defined in the Agreement; 
 
WHEREAS, on or about January 3, 2003, Company, PRSI and Shareholders entered into a “First Amendment to Agreement and Plan of Merger dated as of December 28, 2001” (the “First Amendment”), and on
or about January 21, 2003, such parties entered into a “Second Amendment to Agreement and Plan of Merger dated as of December 28, 2001” (the “Second Amendment”), in each case to modify the language in Section 3.3 of the
Agreement; and 
 
WHEREAS, the parties hereto
desire to amend the Agreement, as amended by the First Amendment and the Second Amendment, as provided below in order to implement their agreement with respect to, among other things, the terms and conditions for the Company’s withdrawal of its
Balance Sheet Adjustment Demand. 







 
A M E N D M
E N T 
 
NOW, THEREFORE, BE IT RESOLVED, that
in consideration of the foregoing and for good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the Agreement is hereby amended as set forth below. 
 
1.    References in the Agreement to “this Agreement” shall be deemed to be
references to the Agreement as amended hereby. 
 
2.    Capitalized terms that are not specifically defined in this Amendment shall have the same definition as in the Agreement. 
 
3.    Sections 3.3(b), 3.3(c), 3.5(a), 3.5(b), 3.5(c) and 3.5(d) (collectively, the
“Deleted Sections”) of the Agreement are hereby deleted from the Agreement in their entirety. For clarification, as a result of the deletion of the Deleted Sections from the Agreement: 
 
a.  The Company (for itself and its affiliates,
successors and assigns) hereby waives, and releases and forever discharges each of the Shareholders and their respective affiliates, successors and assigns (collectively, the “Shareholder Releasees”) from, any and all claims,
demands, proceedings, causes of action, obligations, debts and liabilities whatsoever, whether known or unknown, suspected or unsuspected, that the Company now has, has ever had, or may hereafter have against any of the Shareholder Releasees on
account of or arising out of the Deleted Sections; 
 
b.  The Shareholders (for themselves and their affiliates, successors and assigns) hereby waive, and release and forever discharge the Company and its affiliates, successors and assigns (the “Company
Releasees”) from, any and all claims, demands, proceedings, causes of action, obligations, debts and liabilities whatsoever, whether known or unknown, suspected or unsuspected, that the Company now has, has ever had, or may hereafter have
against any of the Company Releasees on account of or arising out of the Deleted Sections; and 
 
c.  With respect to the releases set forth in paragraphs a. and b. above, each of the releasing parties further expressly agrees to waive and relinquish any and all rights and benefits under
Section 1542 of the Civil Code of California as to the matters specified above. Each of such releasing parties acknowledges that such party is familiar with and understands said Section, which provides as follows: 
 
A general release does not extend to claims which the
creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known to him, must have materially affected his settlement with the debtor. 
 
4.  At the end of section 10.2 of the Agreement the following paragraph shall be added:

 
“Shareholders’ indemnification
obligations to all Shareholders’ Indemnified Parties under Section 10.2 and Section 10.3 shall be extinguished for any and all 
 

2 








 
Damages incurred in
connection with, arising out of, resulting from or incident to the items totaling $2,711,705.00 that are itemized in Exhibit A to this Amendment No. 3. All other Shareholders’ indemnification obligations shall remain in full force and effect
until the Termination Date.” 
 
5.    At the end of Section 10.2(f)(i), the following sentence shall be added: 
 
“Any and all Damages incurred in connection with the items listed in Exhibit A to this Amendment No. 3 shall not be considered
Damages for purposes of calculating whether Damages exceed the Threshold.” 
 
6.    The Company agrees that, promptly after the date of this Amendment, it shall reimburse Irwin R. Pearlstein for the $5,000 legal retainer he paid in defense of PRSI
in case number C 02 –01816 pending before the Superior Court of California, County of Contra Costa. 
 
7.    The parties agree to execute and deliver that certain “First Amendment to Escrow Agreement dated as of
December 28, 2001” (the “Escrow Amendment”) that is attached hereto as Exhibit B simultaneously with the execution and delivery of this Amendment. The Company covenants (a) to cause Comerica Bank-California to execute and
deliver the Escrow Amendment, (b) to cause the Escrowed Property (as defined in the Escrow Agreement) to be distributed to the Shareholders as provided for in the Escrow Agreement, and (c) that it will not, prior to the occurrence of the events
described in (a) and (b), make any Indemnity Claim Notice, or other claim or demand of entitlement to receive any such Escrowed Property. 
 
Except as amended hereby the provisions of the Agreement shall remain unchanged and in full force and effect. This Amendment shall be
governed by, and construed in accordance with, the laws of the State of California. 
 
[Signature Page Follows] 
 
 

3 








 
IN WITNESS
WHEREOF, the undersigned have executed this Amendment as of the date first set forth above. 
 

	 US SEARCH.COM, INC.

	
	 By:
	 	 /s/    BRENT N.
COHEN      


	 Name:
	 	 Brent N. Cohen

	 Title:
	 	 Chief Executive Officer



 

	 PROFESSIONAL RESOURCE SCREENING, INC.

	
	 By:
	 	 /s/    IRWIN R.
PEARLSTEIN      


	 Name:
	 	 Irwin R. Pearlstein

	 Title:
	 	 President



 

	 SHAREHOLDERS

	
	 /s/    IRWIN R.
PEARLSTEIN

 Name: Irwin R.
Pearlstein

	
	 /s/    DAVID PEARLSTEIN

 Name: David Pearlstein

	
	 /s/    CHERYL
PEARLSTEIN-ENOS

 Name:
Cheryl Pearlstein-Enos



 

4 








 
EXHIBIT A

 
1.    LITIGATION MATTERS

 
Wood, Warren & Co. v. Professional Resource
Screening, Inc., Superior Court of California for the County of Contra Costa, Case No. C 02-01816 
 
Lucent Technologies, Inc. v. Professional Resource Screening, Inc., In the Circuit Court of DuPage County, Illinois, Case No. 2003L000094

 
2.    Sales Tax Liability
for Texas, New Mexico, Ohio, Hawaii, South Carolina, Connecticut, South Dakota and District of Columbia for tax years 1997 through 2001 
 
3.    Software License Liability for the software listed in Appendix A 
 
4.    Unrecorded Liabilities or
Impairments totaling $899,399.00 that were set forth on the Closing Audited Balance Sheet that did not appear on the August 31 Unaudited Balance Sheet 
 
5.    Unrecorded Liabilities or Impairments relating to the following accounts receivable in the amounts indicated

 

	 	  	 Expenses
	  	 Credits
	 	  	 
	

	 Accounts Receivable
	  	 	  	 	 	  	 
	 Accounts receivable writeoff
	  	 	  	 	 	  	 
	 Pueblo
	  	 4,937
	  	 	 	  	 
	 Brandsmart
	  	 14,467
	  	 	 	  	 
	 Rentway
	  	 9,659
	  	 	 	  	 
	 Surewest
	  	 290
	  	 	 	  	 
	 Estimated additional reserves
	  	 21,354
	  	 	 	  	 
	 	  	 	  	 	 	  	 
	 Bad debt reserves at 12/01
	  	 	  	 (24,000
	 )
	  	 
	

	 	  	 50,707
	  	 (24,000
	 )
	  	 26,707

	 	


 

5 








 
6.    Unrecorded Liabilities or Impairments relating to the following accounts payable in the amounts indicated 
 

	 Accounts Payable
	  	 Expenses

	  	 Credits

	 	  	 
	 Travel & Entertainment
	  	 8,299
	  	 	 	  	 
	 Health & WC Insurance
	  	 16,441
	  	 	 	  	 
	 WC Insurance
	  	 3,114
	  	 	 	  	 
	 Gas & Electric
	  	 151
	  	 	 	  	 
	 Cellular
	  	 37
	  	 	 	  	 
	 Telephone—LD
	  	 	  	 (17,467
	 )
	  	 
	 Legal
	  	 2,565
	  	 	 	  	 
	 Delivery
	  	 107
	  	 	 	  	 
	 Consultants
	  	 3,120
	  	 	 	  	 
	 Leases
	  	 5,953
	  	 	 	  	 
	 Office
	  	 3,345
	  	 	 	  	 
	 Trade Show
	  	 2,657
	  	 	 	  	 
	 Printing
	  	 1,171
	  	 	 	  	 
	 Payroll Service & Misc
	  	 991
	  	 	 	  	 
	 Telephone—LD
	  	 	  	 (7,032
	 )
	  	 
	 Fulfillment
	  	 6,888
	  	 	 	  	 
	 Shawn Yard
	  	 6,610
	  	 	 	  	 
	 Teri Wilson Salary Increase
	  	 7,000
	  	 	 	  	 
	 Michelle Hansen Salary Increase
	  	 7,000
	  	 	 	  	 
	 Poulsen Investment (CAM)
	  	 1,662
	  	 	 	  	 
	 Court Records
	  	 24,048
	  	 	 	  	 
	 	  	
	  	
	
	  	

	 Totals
	  	 101,159
	  	 (24,499
	 )
	  	 76,660

	 	  	
	  	
	
	  	


 
7.    Unrecorded Liabilities or Impairments relating to the following accruals in the amounts indicated 
 

	 401K accruals
	  	 
	 December 31, 2001
	  	 12,000

	 Close out 401k
	  	 8,000

	 AMF
	  	 
	 Warrant
	  	 74,099

	 	  	

	 Totals
	  	 94,099

	 	  	


 

6 








 
EXHIBIT B

 
ESCROW AMENDMENT 
 
US SEARCH.COM INC. 
 
FIRST AMENDMENT 
 
TO 
 
ESCROW AGREEMENT DATED AS OF DECEMBER 28, 2001

 
THIS FIRST AMENDMENT TO ESCROW AGREEMENT
DATED AS OF DECEMBER 28, 2001 (this “Amendment”) is entered into as of April             , 2003, by and among US Search.com Inc., a Delaware corporation (the
“Company”), Comerica Bank-California, a California banking corporation (the “Escrow Agent”), and Irwin R. Pearlstein, an individual, David Pearlstein, an individual, and Cheryl Pearlstein-Enos, an individual (the
“Shareholders”). 
 
R E C I T A
L S 
 
WHEREAS, Professional Resource
Screening, Inc., a California corporation, merged with and into US SEARCH Screening Services, Inc., a Delaware corporation, which is therefore the successor in interest to Professional Resource Screening, Inc., a California corporation;

 
WHEREAS, US SEARCH Screening Services, Inc., a
Delaware corporation, changed its name to Professional Resource Screening, Inc.; 
 
WHEREAS, the parties to this Amendment are parties to that certain Agreement and Plan of Merger, dated as of December 28, 2001 (the “Agreement”); 
 
WHEREAS, in connection with the Agreement, the parties to this
Amendment entered into an Escrow Agreement, dated as of December 28, 2001 (the “Escrow Agreement”); 
 
WHEREAS, as required by the “Third Amendment to Agreement and Plan of Merger dated as of December 28, 2001” between the
Company and the Shareholders, the parties hereto desire to amend the Agreement as provided below. 
 
A M E N D M E N T 
 
NOW, THEREFORE, BE IT RESOLVED, that in consideration of the foregoing and for good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the Agreement is hereby amended as set forth below.

 

7 








 
1. References
in the Escrow Agreement to “this Agreement” shall be deemed to be references to the Agreement as amended hereby. 
 
2. Capitalized terms that are not specifically defined in this Amendment shall have the same definition as in the Agreement and the Escrow
Agreement. 
 
3. In the first sentence of Section
3.1 of the Escrow Agreement the words “December 28, 2003” are hereby omitted and replaced with the words “April             , 2003”. 
 
4. The second sentence of Section 3.1 of the Escrow Agreement
and Sections 3.2, 3.3, 3.4, 3.5, 3.6, 3.8 and 3.9 of the Agreement are hereby deleted from the Agreement in their entirety. 
 
5. The first sentence of Section 3.7 of the Escrow Agreement is amended and restated to read in its entirety as follows: “On the
Termination Date, the Escrow Agent shall deliver to the Shareholders all of the Escrowed Property.” 
 
Except as amended hereby the provisions of the Escrow Agreement shall remain unchanged and in full force and effect. This Amendment shall
be governed by, and construed in accordance with, the laws of the State of California. 
 
[Signature Page Follows] 
 
 

8 








 
IN WITNESS
WHEREOF, the undersigned have executed this Amendment as of the date first set forth above. 
 
US SEARCH.COM, INC. 
 
By:                                     
                                        
                   
Name: Brent N. Cohen 
Title: Chief Executive Officer 
 
COMERICA BANK-CALIFORNIA 
By:                                     
                                        
                    
Name:
                                        
                                 
Title:
                                        
                                     
 
SHAREHOLDERS 
 
                                     
                                        
                           
Name: Irwin R. Pearlstein 
 
                                     
                                        
                           
Name: David Pearlstein 
 
                                     
                                        
                           
Name: Cheryl Pearlstein-Enos 
 
 

9