<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
WHITTMAN-HART, INC.
- --------------------------------------------------------------------------------
(Name of Issuer)
COMMON STOCK
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(Title of Class of Securities)
966834103
--------------------
(CUSIP Number)
USWEB CORPORATION
410 TOWNSEND STREET
SAN FRANCISCO, CALIFORNIA 94107
(415) 369-6700
Attention:
Carolyn V. Aver
Executive Vice President And Chief Financial Officer
with a copy to:
Mark Bonham, Esq.
Steve Camahort, Esq.
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304
(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
December 12, 1999
-----------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [_].
NOTE: Six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 13d-1(a) for other parties to whom copies are to
be sent.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
<PAGE>
SCHEDULE 13D
CUSIP NO. 966834103
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NAME OF REPORTING PERSON
1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
USWEB CORPORATION (I.R.S. Employer Identification Number. 870551650)
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
2 (a) [_]
N/A (b) [_]
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SEC USE ONLY
3
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SOURCE OF FUNDS*
4
OO
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CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e)[_]
5 N/A
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CITIZENSHIP OR PLACE OF ORGANIZATION
6
STATE OF DELAWARE
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SOLE VOTING POWER
7 N/A
NUMBER OF
SHARES--------------------------------------------------------------------------
SHARED VOTING POWER
BENEFICIALLY 8 12,808,535 (1)
OWNED BY
- --------------------------------------------------------------------------------
EACH SOLE DISPOSITIVE POWER
9 N/A
REPORTING
PERSON--------------------------------------------------------------------------
SHARED DISPOSITIVE POWER
WITH 10 N/A
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
11 12,808,535
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CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES*
12
[_]
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13 20.7% (2)
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TYPE OF REPORTING PERSON*
14 CO
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7 (INCLUDING
EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
Note (1): As an inducement to USWeb to enter into the Merger Agreement, Mr.
Robert Bernard, the Chief Executive Officer and Chairman of the Board of
Whittman-Hart, and USWeb entered into a Stockholder Agreement, dated as of
December 12, 1999 (the "Stockholder Agreement"). By executing the Stockholder
Agreement, Mr. Bernard irrevocably appointed the Board of Directors of USWeb
(the "USWeb Board") as his attorney-in-fact and proxy. The proxy gives the
USWeb Board the right to vote each of the 12,808,535 shares (the "Shares") of
Whittman-Hart Common Stock beneficially owned by Mr. Bernard at any Whittman-
Hart stockholders meeting (or grant a written consent in lieu of such meeting)
with respect to the Shares in favor of approval of the Merger and the Merger
Agreement, including the amendment of Whittman-Hart's Certificate of
Incorporation to increase the number of authorized shares to allow for the
Merger, and, in general, against any action which is intended to impede or
interfere with the transactions contemplated by the Merger Agreement. Mr.
Bernard may vote the Shares on all other matters. These shares include shares
which Mr. Bernard has the right to acquire within 60 days of December 12, 1999
pursuant to the exercise of stock options held by Mr. Bernard.
Note (2): Based upon 61,784,097 shares of Common Stock of Whittman-Hart, Inc.
outstanding as of December 9, 1999.
Neither the filing of this Schedule 13D nor any of its contents shall
be deemed to constitute an admission by USWeb Corporation that it is the
beneficial owner of any of the Common Stock referred to herein for purposes of
Section 13(d) of the Securities Exchange Act of 1934, as amended (the "Act"), or
for any other purpose, and such beneficial ownership is expressly disclaimed.
ITEM 1. SECURITY AND ISSUER.
This statement on Schedule 13D relates to shares of Common Stock of
Whittman-Hart, Inc., a Delaware corporation ("Whittman-Hart" or "Issuer"). The
principal executive offices of Whittman-Hart are located at 311 South Wacker
Drive, Suite 3500, Chicago, Illinois 60606
ITEM 2. IDENTITY AND BACKGROUND.
The name of the corporation filing this statement is USWeb
Corporation, a Delaware corporation ("USWeb"). USWeb's principal business is to
provide Intranet, Extranet and Web site solutions and services to businesses.
The address of the principal executive offices of USWeb is 410 Townsend Street,
San Francisco, California 94107. Set forth on Schedule A is the name and
present principal occupation or employment and the name, principal business and
address of any corporation or other organization in which such employment is
conducted, of each of USWeb's directors and executive officers, as of the date
hereof.
Neither USWeb, nor to USWeb's knowledge, any person named on Schedule
A hereto is required to disclose legal proceedings pursuant to Items 2(d) or
2(e). With the exception of Klaus Schwab who is a citizen of Switzerland, each
person listed on Schedule A is a citizen of the United States.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
No monetary consideration was paid by USWeb to the Issuer or to Mr.
Robert Bernard with respect to the Stockholder Agreement (as defined below). The
Stockholder Agreement was executed by Mr. Bernard as an inducement for USWeb to
enter into the Merger Agreement (as defined below).
ITEM 4. PURPOSE OF TRANSACTION.
Pursuant to an Agreement and Plan of Merger dated December 12, 1999,
(the "Merger Agreement"), among Whittman-Hart, UniWhale, Inc., a Delaware
corporation and wholly owned subsidiary of Whittman-Hart ("Merger Sub") and
USWeb, and subject to the conditions set forth therein (including approval by
stockholders of USWeb and Whittman-Hart), Merger Sub will merge with and into
USWeb and USWeb will become a wholly owned subsidiary of Whittman-Hart (such
events constituting the "Merger"). Once the Merger is consummated, Merger Sub
will cease to exist as a corporation and USWeb will remain as the surviving
corporation (the "Surviving Corporation"). As a result of the Merger, each
outstanding share of USWeb Common Stock, other than shares owned by Merger Sub,
Whittman-Hart or any directly or indirectly wholly owned subsidiary of Whittman-
Hart or of USWeb, will be converted into the right to receive 0.865 shares (the
"Exchange Ratio") of Whittman-Hart Common Stock. At the effective time of the
Merger, each outstanding option or warrant to purchase USWeb Common Stock (each,
a "USWeb Option") shall be assumed by Whittman-Hart and each such assumed option
shall be converted into and represent an option to purchase the number of
Whittman-Hart Common Stock (a "Substitute Option") (rounded down to the nearest
full share) determined by multiplying (i) the number of USWeb Common Stock
subject to such USWeb Option immediately prior to the effective time of the
Merger by (ii) the Exchange Ratio, at an exercise price per share of Whittman-
Hart Common Stock (rounded up to the nearest tenth of a cent) equal to the
exercise price per share of USWeb Common Stock immediately prior to the
effective time of the Merger divided by the Exchange Ratio.
<PAGE>
The foregoing summary of the Merger is qualified in its entirety by
reference to the copy of the Merger Agreement included as Exhibit 1 to this
Schedule 13D and incorporated herein in its entirety by reference.
As an inducement to USWeb to enter into the Merger Agreement, Mr.
Robert Bernard, the Chief Executive Officer and Chairman of the Board of
Whittman-Hart, and USWeb entered into a Stockholder Agreement, dated as of
December 12, 1999 (the "Stockholder Agreement"). By executing the Stockholder
Agreement, Mr. Bernard irrevocably appointed the Board of Directors of USWeb
(the "USWeb Board") as his attorney-in-fact and proxy. The proxy gives the
USWeb Board the right to vote each of the 12,808,535 shares (the "Shares") of
Whittman-Hart Common Stock beneficially owned by Mr. Bernard at any Whittman-
Hart stockholders meeting (or grant a written consent in lieu of such meeting)
with respect to the Shares in favor of approval of the Merger and the Merger
Agreement, including the amendment of Whittman-Hart's Certificate of
Incorporation to increase the number of authorized shares to allow for the
Merger, and, in general, against any action which is intended to impede or
interfere with the transactions contemplated by the Merger Agreement. Mr.
Bernard may vote the Shares on all other matters. The Stockholder Agreement
terminates upon the earlier to occur of (i) such date and time as the Merger
shall become effective in accordance with the terms and provisions of the Merger
Agreement and (ii) the date of termination of the Merger Agreement.
The foregoing summary of the Stockholder Agreement is qualified in its
entirety by reference to the Stockholder Agreement included as Exhibit 2 to this
Schedule 13D and incorporated herein in its entirety by reference.
Upon consummation of the Merger, the Board of Directors of Whittman-
Hart will take all actions within its power to cause the Board of Directors of
Whittman-Hart, effective upon the Effective Time, to consist of nine (9)
persons, four (4) of whom shall have served on the Board of Directors of
Whittman-Hart ("Whittman-Hart Directors") immediately prior to the Effective
Time (including the Chief Executive Officer of Whittman-Hart as of the date of
the Merger Agreement), and four (4) of whom shall have served on the Board of
Directors of USWeb ("USWeb Directors") immediately prior to the Effective Time
(including the Chief Executive Officer of USWeb as of the date of the Merger
Agreement), and the "New Director." The "New Director" shall be a person who is
not a current director or employee of Whittman-Hart or USWeb, and shall be
selected by the Chief Executive Officer of Whittman-Hart, with the consent of
the Chief Executive Officer of USWeb, which consent cannot be unreasonably
withheld or delayed. The first class of directors, with a term expiring at
Whittman-Hart's 2000 annual meeting of stockholders, (and such persons shall be
nominated for election at such meeting for a term expiring at Whittman-Hart's
2003 annual meeting) shall include one (1) Whittman-Hart Director and one (1)
USWeb Director. The second class of directors, with a term expiring at Whittman-
Hart's 2001 annual meeting of stockholders, shall include two (2) Whittman-Hart
Directors and two (2) USWeb Directors. The third class of directors, with a term
expiring at Whittman-Hart's 2002 annual meeting of stockholders, shall include
one (1) Whittman-Hart Director, one (1) USWeb Director and the New Director.
If, prior to the Effective Time, any of the Whittman-Hart or the USWeb designees
shall decline or be unable to serve as a director of Whittman-Hart, USWeb (if
such person was designated by USWeb) or Whittman-Hart (if such Person was
designated by Whittman-Hart) shall designate another person to serve in such
person's stead, which person shall be reasonably acceptable to the other party.
<PAGE>
The Chief Executive Officer of USWeb shall be elected non-executive
Chairman of Whittman-Hart effective as of the Effective Time. At the Effective
Time, the Chief Operating Officer and other key officers of USWeb will be
offered positions as Chief Operating Officer and other key offices in Whittman-
Hart, respectively. The Chief Executive Officer, Chief Financial Officer and
other key management personnel of Whittman-Hart shall remain in such positions
after the Effective Time.
At the Effective Time, Whittman-Hart shall change its name to a new
name to be agreed upon by Whittman-Hart and USWeb, subject to the approval of
such change in Whittman-Hart's Certificate of Incorporation by its stockholders.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
As a result of the Stockholder Agreement, USWeb may be deemed to be
the beneficial owner of 12,808,535 shares of Whittman-Hart Common Stock which
represents 20.7% of the issued and outstanding shares of Whittman-Hart Common
Stock (based upon the issued and outstanding shares as of December 9, 1999).
USWeb has shared voting power of all 12,808,535 of the shares subject
to the Stockholder Agreement for the limited purposes described above.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDING OR RELATIONSHIPS WITH RESPECT TO
SECURITIES OF THE ISSUER.
Other than the Merger Agreement and Stockholder Agreement, to the
knowledge of USWeb, there are no contracts, arrangements, understandings or
relationships (legal or otherwise) among the persons named in Item 2 and between
such persons and any person with respect to any securities of Whittman-Hart,
including but not limited to transfer or voting of any of the securities,
finder's fees, joint ventures, loan or option arrangement, puts or calls,
guarantees of profits, division of profits or loss, or the giving or withholding
of proxies.
Each of the persons listed in Schedule A is expected to execute an
agreement prior to the Effective Time with Whittman-Hart restricting sales or
dispositions of Whittman-Hart Common Stock, other than in accordance with the
Securities Act of 1933 or the rules promulgated thereunder.
ITEM 7. MATERIALS TO BE FILED AS EXHIBITS.
The following documents are filed as exhibits:
1. Agreement and Plan of Merger, dated December 12, 1999, by and among
Whittman-Hart, Merger Sub, and USWeb.
2. Stockholder Agreement, dated December 12, 1999, by and between USWeb
and Mr. Robert Bernard.
<PAGE>
Schedule A
DIRECTORS AND EXECUTIVE OFFICERS OF
USWEB CORPORATION
<TABLE>
<CAPTION>
Present Principal Occupation Including
Name and Title Name of Employer
- --------------------------------------------------------------------------------
<S> <C> <C>
Robert Shaw USWeb Corporation
Chief Executive Officer and Director 410 Townsend Street
San Francisco, CA 94107
Mark Kvamme Sequoia Capital
Chairman of the Board 3000 Sand Hill Road
Bldg. 4, Suite 280
Menlo Park, CA 94025
Carolyn Aver USWeb Corporation
Executive Vice President and Chief Financial 410 Townsend Street
Officer San Francisco, CA 94107
Robert Clarkson USWeb Corporation
Chief Operating Officer 410 Townsend Street
San Francisco, CA 94107
Richard Evans USWeb Corporation
Senior Vice President of Human Resources 410 Townsend Street
San Francisco, CA 94107
Robert Hoff General Partner
Director Crosspoint Ventures Partners
18552 MacArthur Boulevard,Suite 400
Irvine, CA 92612
Joseph Marengi Senior Vice President
Director Dell Computer
One Dell Way
Round Rock, TX 78682
Klaus Schwab Professor
Director 70, Chemin de Ruth
CH-1223 Cologny/Geneva
Switzerland
Peter Sealey General Partner
Director The Los Altos Group, Inc.
P.O. Box 1360
Los Altos, CA 94023-1360
Tom Steiner 9 West 57th Street
President and Director 15th Floor
New York, NY 10019
John R. Torell III Chairman, Torell Management, Inc.
Director 767 Fifth Avenue
New York, NY 10153
</TABLE>
<PAGE>
SIGNATURE
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After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated: December 22, 1999
USWEB CORPORATION
By: /s/ Carolyn V. Aver
--------------------------------
Carolyn V. Aver
Executive Vice President and
Chief Financial Officer
<PAGE>
EXHIBIT 1
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
WHITTMAN-HART, INC.
UNIWHALE, INC.,
AND
USWEB CORPORATION
DATED AS OF DECEMBER 12, 1999
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
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<S> <C>
ARTICLE I The Merger; Effective Time; Closing....................................... 1
1.1 The Merger............................................................. 1
1.2 Effective Time......................................................... 2
1.3 Closing................................................................ 2
1.4 Effect of the Merger................................................... 2
ARTICLE II Certificate of Incorporation and By-Laws of the Surviving Corporation.... 2
2.1 Certificate of Incorporation; Name..................................... 2
2.2 By-Laws................................................................ 2
ARTICLE III Directors and Officers of the Surviving Corporation..................... 3
3.1 Directors.............................................................. 3
3.2 Officers............................................................... 3
ARTICLE IV Merger Consideration; Conversion or Cancellation of Shares in the Merger. 3
4.1 Share Consideration for the Merger; Conversion or
Cancellation of Shares in the Merger................................... 3
4.2 Payment for Shares in the Merger....................................... 4
4.3 Cash For Fractional Parent Shares...................................... 5
4.4 Transfer of Shares after the Effective Time............................ 6
ARTICLE V Representations and Warranties............................................ 6
5.1 Representations and Warranties of Parent and Merger Sub................ 6
5.2 Representations and Warranties of the Company.......................... 7
ARTICLE VI Additional Covenants and Agreements...................................... 7
6.1 Conduct of Business.................................................... 7
6.2 No Solicitation by the Company......................................... 7
6.3 No Solicitation by Parent.............................................. 7
6.4 Meeting of Stockholders................................................ 7
6.5 Registration Statement................................................. 7
6.6 Reasonable Efforts..................................................... 7
6.7 Access to Information.................................................. 7
6.8 Publicity.............................................................. 7
6.9 Indemnification of Directors and Officers.............................. 7
6.10 Affiliates of the Company and Parent................................... 7
6.11 Maintenance of Insurance............................................... 7
6.12 Representations and Warranties......................................... 7
6.13 Filings; Other Action.................................................. 7
6.14 Tax-Free Reorganization Treatment...................................... 7
6.15 Company Options; Company ESPPs......................................... 7
</TABLE>
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TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
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<S> <C>
6.16 Stockholders Agreements................................................ 48
6.17 Board Composition...................................................... 48
6.18 Officers of Combined Company........................................... 49
6.19 Change of Name......................................................... 49
6.20 Contemplated Termination of 401(k) Plan(s)............................. 49
6.21 Crediting Service and Providing Other Benefits......................... 49
6.22 Earn-Out Shares........................................................ 50
6.23 Exemption from Liability Under Section 16(b)........................... 50
ARTICLE VII Conditions.............................................................. 51
7.1 Conditions to Each Party's Obligations................................. 51
7.2 Conditions to the Obligations of the Company........................... 51
7.3 Conditions to the Obligations of Parent................................ 52
ARTICLE VIII Termination............................................................ 53
8.1 Termination by Mutual Consent.......................................... 53
8.2 Termination by either the Company or Parent............................ 53
8.3 Termination by the Company............................................. 54
8.4 Termination by Parent.................................................. 55
8.5 Effect of Termination; Termination Fee................................. 55
ARTICLE IX Miscellaneous and General................................................ 57
9.1 Payment of Expenses.................................................... 57
9.2 Non-Survival of Representations and Warranties......................... 57
9.3 Modification or Amendment.............................................. 57
9.4 Waiver of Conditions................................................... 58
9.5 Counterparts........................................................... 58
9.6 Governing Law.......................................................... 58
9.7 Notices................................................................ 58
9.8 Entire Agreement; Assignment........................................... 59
9.9 Parties in Interest.................................................... 59
9.10 Certain Definitions.................................................... 59
9.11 Obligation of the Company.............................................. 61
9.12 Severability........................................................... 61
9.13 Specific Performance................................................... 61
9.14 Recovery of Attorney's Fees............................................ 61
9.15 Captions............................................................... 61
</TABLE>
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<PAGE>
DEFINED TERMS
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<TABLE>
<S> <C>
Agreement.............................................. Introduction
Authorized Representatives............................. Section 6.6
Certificate of Merger.................................. Section 1.2
Certificates........................................... Section 4.2(b)
Closing................................................ Section 1.3
Closing Date........................................... Section 1.3
COBRA.................................................. Section 5.1(m)(iii)(6)
Code................................................... Recitals
Codification of Financing Reporting Policies........... Section 6.9
Company................................................ Introduction
Company Acquisition Agreement.......................... Section 6.2(b)
Company Acquisition Proposal........................... Section 6.2(a)
Company Affiliate...................................... Section 6.10
Company Affiliate Letter............................... Section 6.10
Company Contract....................................... Section 5.2(o)
Company Directors...................................... Section 6.18
Company Disclosure Schedule............................ Section 5.2
Company ESPPs.......................................... Section 6.16(b)
Company Financial Statements........................... Section 5.2(h)(ii)
Company Insiders....................................... Section 6.23(c)
Company Intellectual Property Rights................... Section 5.2(n)(i)
Company International Employee Plans................... Section 5.2(m)(iii)(13)
Company Key Employees.................................. Section 5.2(o)(ii)
Company Option......................................... Section 4.1(c)
Company Option Plans................................... Section 4.1(c)
Company SEC Reports.................................... Section 5.2(h)(i)
Company Scheduled Plans................................ Section 5.2(m)(i)
Company Shares......................................... Section 4.1(a)
Confidentiality Agreement.............................. Section 6.6
DGCL................................................... Section 1.1
Effective Time......................................... Section 1.2
Environmental Costs and Liabilities.................... Section 5.1(s)
Environmental Laws..................................... Section 5.1(s)
ERISA.................................................. Section 9.10(a)
Exchange Act........................................... Section 5.1(f)
Exchange Agent......................................... Section 4.2(a)
Exchange Ratio......................................... Section 4.1(a)
Fractional Securities Fund............................. Section 4.3
Governmental Entity.................................... Section 9.10(b)
Hazardous Material..................................... Section 5.1(s)
HSR Act................................................ Section 5.1(f)
Indemnified Parties.................................... Section 6.8(a)
Joint Proxy Statement.................................. Section 6.4
Knowledge.............................................. Section 9.10(c)
</TABLE>
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<TABLE>
<S> <C>
KPMG................................................... Section 5.1(p)
Malfunction............................................ Section 9.10(d)
Material Adverse Effect................................ Section 9.10(e)
Material Adverse Effect Exception...................... Section 9.10(f)
Merger................................................. Recitals
Merger Sub............................................. Introduction
NNM.................................................... Section 4.3
Parent................................................. Introduction
Parent Acquisition Proposal............................ Section 6.3(a)
Parent Contract........................................ Section 5.1(o)
Parent Superior Proposal............................... Section 6.3(a)
Parent Directors....................................... Section 6.18
Parent Disclosure Schedule............................. Section 5.1
Parent Financial Statements............................ Section 5.1(h)(ii)
Parent Intellectual Property Rights.................... Section 5.1(n)(i)
Parent International Employee Plans.................... Section 5.1(m)(iii)(13)
Parent Key Employees................................... Section 5.1(o)(iv)
Parent SEC Reports..................................... Section 5.1(h)(i)
Parent Scheduled Plans................................. Section 5.1(m)(i)
Parent Shares.......................................... Section 4.1(a)
Parties................................................ Introduction
PBGC................................................... Section 5.1(m)(iii)(7)
Person................................................. Section 9.10(g)
Plan Affiliate......................................... Section 5.1(m)(v)
Requisite Stockholder Approval......................... Section 6.3
Restraints............................................. Section 7.1(c)
Returns................................................ Section 5.1(l)(i)
S-4 Registration Statement............................. Section 6.4
SEC.................................................... Section 5.1(h)(i)
Section 16 Information................................. Section 6.23(b)
Securities Act......................................... Section 5.1(f)
Share Consideration.................................... Section 4.2(a)
Significant Tax Agreement.............................. Section 9.10(h)
Software............................................... Section 9.10(i)
Stock Merger Exchange Fund............................. Section 4.2(a)
Stockholder Meetings................................... Section 6.4
Stockholders Agreement................................. Recitals
Subsidiary............................................. Section 9.10(j)
Substitute Option...................................... Section 4.1(c)
Subsidiary Shares...................................... Section 6.22
Surviving Corporation.................................. Section 1.1
Tax.................................................... Section 9.10(k)
Taxes.................................................. Section 9.10(k)
Termination Fee........................................ Section 8.5(b)
</TABLE>
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<PAGE>
<TABLE>
<S> <C>
United States Real Property Holdings Corporation....... Section 5.1(l)(ix)
Voting Stockholder..................................... Recitals
Voting Stockholders.................................... Recitals
</TABLE>
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<PAGE>
EXHIBITS
--------
Stockholders Agreement (Company)........................ Exhibit A-1
Stockholders Agreement (Parent)......................... Exhibit A-2
Certificate of Merger................................... Exhibit B
Company Affiliate Letter................................ Exhibit C
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<PAGE>
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of December 12,
1999, by and among WHITTMAN-HART, INC., a Delaware corporation ("Parent"),
UNIWHALE, INC., a Delaware corporation and a direct wholly-owned subsidiary of
Parent ("Merger Sub"); and USWEB CORPORATION, a Delaware corporation (the
"Company"). Parent, Merger Sub and the Company are referred to collectively
herein as the "Parties".
RECITALS
WHEREAS, the Board of Directors of each of Parent, Merger Sub and the
Company have determined that it is in the best interests of each corporation and
their respective stockholders that the Company and Parent enter into a strategic
"merger of equals" business combination by means of the merger of Merger Sub
with and into the Company (the "Merger") and, in furtherance thereof, have
approved the Merger and declared the Merger advisable;
WHEREAS, pursuant to the Merger, the outstanding shares of common stock of
the Company shall be converted into shares of common stock of Parent at the rate
determined herein;
WHEREAS, for federal income tax purposes, it is intended that the Merger
shall qualify as a reorganization within the meaning of Section 368 of the
Internal Revenue Code of 1986, as amended (the "Code");
WHEREAS, it is intended that the Merger shall be treated for accounting
purposes as a purchase;
WHEREAS, concurrently with the execution hereof, certain holders (each a
"Voting Stockholder" and collectively the "Voting Stockholders") of Company
Shares and of Parent Shares are entering into a stockholder voting agreement, in
each case in the forms attached as Exhibit A-1 and A-2 hereto (each, a
----------- ---
"Stockholders Agreement").
NOW, THEREFORE, in consideration of the mutual representations, warranties,
covenants and agreements set forth herein, the Parties hereby agree as follows:
ARTICLE I
The Merger; Effective Time; Closing
1.1 The Merger. Upon the terms and subject to the conditions set forth in
----------
this Agreement, and in accordance with the Delaware General Corporation Law (the
"DGCL"), at the Effective Time, Merger Sub shall be merged with and into the
Company, the separate corporate existence of Merger Sub shall thereupon cease
and the Company shall be the successor or surviving corporation. The Company, as
the surviving corporation after the consummation of the Merger, is sometimes
hereinafter referred to as the "Surviving Corporation."
<PAGE>
1.2 Effective Time. Subject to the provisions of this Agreement, the
--------------
Parties shall cause the Merger to be consummated by filing the certificate of
merger of Merger Sub and the Company (the "Certificate of Merger") with the
Secretary of State of the State of Delaware in such form as required by, and
executed in accordance with, the relevant provisions of the DGCL as soon as
practicable on or before the Closing Date. The Merger shall become effective
upon such filing or at such time thereafter as is provided in the Certificate of
Merger (the "Effective Time"). The Certificate of Merger is attached hereto as
Exhibit B.
- ---------
1.3 Closing. Unless this Agreement shall have been terminated and the
-------
transactions herein contemplated shall have been abandoned pursuant to Article
VIII, the closing of the Merger (the "Closing") shall take place at 10:00 a.m.,
local time, at the offices of counsel for Parent, on the second business day
after all of the conditions to the obligations of the Parties to consummate the
Merger as set forth in Article VII have been satisfied or waived, or such other
date, time or place as is agreed to in writing by the Parties (the "Closing
Date").
1.4 Effect of the Merger. At the Effective Time, the effect of
--------------------
the Merger shall be as provided in this Agreement and the applicable provisions
of the DGCL. Without limiting the generality of the foregoing, and subject
thereto, at the Effective Time, all the property, rights, privileges, 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.
ARTICLE II
Certificate of Incorporation and By-Laws of the Surviving Corporation
2.1 Certificate of Incorporation; Name. At the Effective Time, the
----------------------------------
Certificate of Incorporation of the Company immediately prior to the Effective
Time shall remain the Certificate of Incorporation of the Surviving Corporation,
and the name of the Surviving Corporation shall be the Company's name.
2.2 By-Laws. At the Effective Time, the by-laws of the Company in effect
-------
immediately prior to the Effective Time shall remain the by-laws of the
Surviving Corporation.
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ARTICLE III
Directors and Officers of the Surviving Corporation
3.1 Directors. The directors of Merger Sub shall be the initial directors
---------
of the Surviving Corporation, until their respective successors have been duly
elected or appointed and qualified or until their earlier death, resignation or
removal in accordance with the Surviving Corporation's Articles of Incorporation
and By-Laws.
3.2 Officers. The officers of Merger Sub shall be the initial officers
--------
of the Surviving Corporation, until their successors have been duly elected or
appointed and qualified or until their earlier death, resignation or removal in
accordance with the Surviving Corporation's Articles of Incorporation and By-
Laws.
ARTICLE IV
Merger Consideration; Conversion or Cancellation of Shares in the Merger
4.1 Share Consideration for the Merger; Conversion or Cancellation of
-----------------------------------------------------------------
Shares in the Merger. At the Effective Time, the manner of converting or
- --------------------
canceling shares of the Company and Parent shall be as follows:
(a) Conversion of Company Stock. Each share of common stock, $0.001
---------------------------
par value ("Company Shares"), of the Company issued and outstanding immediately
prior to the Effective Time (excluding any Company Shares described in Section
4.1(d)), shall, by virtue of the Merger and without any action on the part of
the holder thereof, be converted automatically into the right to receive 0.865
shares of common stock, $0.001 par value, of Parent (collectively, "Parent
Shares"). All Company Shares to be converted into Parent Shares pursuant to this
Section 4.1(a) shall, by virtue of the Merger and without any action on the part
of the holders thereof, cease to be outstanding, be canceled and cease to exist,
and each holder of a certificate representing any such Company Shares shall
thereafter cease to have any rights with respect to such Company Shares, except
the right to receive for each of the Company Shares, upon the surrender of such
certificate in accordance with Section 4.2, the number of Parent Shares
specified above and cash in lieu of fractional shares. The ratio of Company
Shares per share of Parent Shares is sometimes hereinafter referred to as the
"Exchange Ratio."
(b) Stock of Merger Sub. Each share of common stock, $0.01 par value,
-------------------
of Merger Sub issued and outstanding immediately prior to the Effective Time,
shall, by virtue of the Merger and without any action on the part of the holder
thereof, be converted automatically into and exchanged for one (1) validly
issued, fully paid and nonassessable share of common stock, $0.001 par value, of
the Surviving Corporation. Each stock certificate representing any shares of
Merger Sub shall continue to represent ownership of such shares of capital stock
of the Surviving Corporation.
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(c) Outstanding Options and Warrants. Each outstanding option or
--------------------------------
warrant to purchase Company Shares (each, a "Company Option") shall be assumed
by Parent (in accordance with the further provisions contained in Section 6.17)
and each such assumed option shall be converted into and represent an option to
purchase the number of Parent Shares (a "Substitute Option") (rounded down to
the nearest full share) determined by multiplying (i) the number of Company
Shares subject to such Company Option immediately prior to the Effective Time by
(ii) the Exchange Ratio, at an exercise price per share of Parent Shares
(rounded up to the nearest tenth of a cent) equal to the exercise price per
share of Company Shares immediately prior to the Effective Time divided by the
Exchange Ratio. It is the intent of the parties that the Company Options assumed
by Parent shall qualify following the Effective Time as "incentive stock
options" as defined in Section 422 of the Code to the extent such Company
Options qualified as incentive stock options immediately prior to the Effective
Time and the provisions of this Section 4.1(c) shall be applied consistent with
such intent. Parent will reserve a sufficient number of Parent Shares for
issuance under this Section 4.1(c).
(d) Cancellation of Parent Owned and Treasury Stock. All of the
-----------------------------------------------
Company Shares that are owned by Parent, any direct or indirect wholly-owned
subsidiary of Parent or by the Company as treasury stock shall automatically
cease to be outstanding, shall be canceled and shall cease to exist and no
Parent Shares shall be delivered in exchange therefor.
4.2 Payment for Shares in the Merger. The manner of making payment for
--------------------------------
Shares in the Merger shall be as follows:
(a) Exchange Agent. On or prior to the Closing Date, Parent shall make
--------------
available to EquiServe, or other entity mutually agreed upon by the Parties (the
"Exchange Agent"), for the benefit of the holders of Company Shares, a
sufficient number of certificates representing the Parent Shares required to
effect the delivery of the aggregate consideration in Parent Shares and cash for
the Fractional Securities Fund required to be issued pursuant to Section 4.1
(collectively, the "Share Consideration" and the certificates representing the
Parent Shares comprising such aggregate Share Consideration being referred to
hereinafter as the "Stock Merger Exchange Fund"). The Exchange Agent shall,
pursuant to irrevocable instructions, deliver the Share Consideration out of the
Stock Merger Exchange Fund and the Fractional Securities Fund. The Stock Merger
Exchange Fund and the Fractional Securities Fund shall not be used for any other
purpose than as set forth herein.
(b) Exchange Procedures. Promptly after the Effective Time, the
-------------------
Exchange Agent shall mail to each holder of record of a certificate or
certificates which immediately prior to the Effective Time represented
outstanding Company Shares (the "Certificates") (i) a form of letter of
transmittal, in a form reasonably satisfactory to the Parties (which shall
specify that delivery shall be effected, and risk of loss and title to the
Certificates shall pass, only upon proper delivery of the Certificates to the
Exchange Agent) and (ii) instructions for use in effecting the surrender of the
Certificates for payment therefor. Upon surrender of Certificates for
cancellation to the Exchange Agent, together with such letter of transmittal
duly executed and any other required documents, the holder of such Certificates
shall be entitled to receive for each of the Company Shares represented by such
Certificates the Share Consideration, without interest, allocable to such
Certificates and the
-4-
<PAGE>
Certificates so surrendered shall forthwith be canceled. Until so surrendered,
such Certificates shall represent solely the right to receive the Share
Consideration allocable to such Certificates.
(c) Distributions with respect to Unexchanged Shares. No dividends or
------------------------------------------------
other distributions that are declared after the Effective Time on Parent Shares
and payable to the holders of record thereof after the Effective Time will be
paid to Persons entitled by reason of the Merger to receive Parent Shares until
such Persons surrender their Certificates as provided above. Upon such
surrender, there shall be paid to the Person in whose name the Parent Shares are
issued any dividends or other distributions having a record date after the
Effective Time and payable with respect to such Parent Shares between the
Effective Time and the time of such surrender. After such surrender there shall
be paid to the Person in whose name the Parent Shares are issued any dividends
or other distributions on such Parent Shares which shall have a record date
after the Effective Time. In no event shall the Persons entitled to receive such
dividends or other distributions be entitled to receive interest on such
dividends or other distributions.
(d) Transfers of Ownership. If any certificate representing Parent
----------------------
Shares is to be issued in a name other than that in which the Certificate
surrendered in exchange therefor is registered, it shall be a condition of such
exchange that the Certificate so surrendered shall be properly endorsed and
otherwise in proper form for transfer and that the Person requesting such
exchange shall pay to the Exchange Agent any transfer or other taxes required by
reason of the issuance of certificates for such Parent Shares in a name other
than that of the registered holder of the Certificate surrendered, or shall
establish to the satisfaction of the Exchange Agent that such tax has been paid
or is not applicable.
(e) No Liability. Neither the Exchange Agent nor any of the Parties
------------
shall be liable to a holder of Company Shares for any Parent Shares or dividends
thereon, or, in accordance with Section 4.3, cash in lieu of fractional Parent
Shares, delivered to a public official pursuant to applicable escheat law. The
Exchange Agent shall not be entitled to vote or exercise any rights of ownership
with respect to the Parent Shares held by it from time to time hereunder, except
that it shall receive and hold all dividends or other distributions paid or
distributed with respect to such Parent Shares for the account of the Persons
entitled thereto.
(f) Termination of Funds. Subject to applicable law, any portion of
--------------------
the Stock Merger Exchange Fund and the Fractional Securities Fund which remains
unclaimed by the former stockholders of the Company for one (1) year after the
Effective Time shall be delivered to Parent, upon demand of Parent, and any
former stockholder of the Company shall thereafter look only to Parent for
payment of their applicable claim for the Share Consideration for their Company
Shares.
4.3 Cash For Fractional Parent Shares. No fractional Parent Shares shall
---------------------------------
be issued in the Merger. Each holder of Parent Shares shall be entitled to
receive in lieu of any fractional Parent Shares to which such holder otherwise
would have been entitled pursuant to Section 4.2 (after taking into account all
Parent Shares then held of record by such holder) a cash payment in an amount
equal to the product of (i) the fractional interest of a Parent Share to which
such holder otherwise would have been entitled and (ii) the closing price of a
Parent Share on the NASDAQ National Market ("NNM") on the trading day
immediately prior to the Effective Time (the cash comprising such
-5-
<PAGE>
aggregate payments in lieu of fractional Parent Shares being hereinafter
referred to as the "Fractional Securities Fund").
4.4 Transfer of Shares after the Effective Time. No transfers of Company
--------------------------------------------
Shares shall be made on the stock transfer books of the Company after the close
of business on the day prior to the date of the Effective Time.
ARTICLE V
Representations and Warranties
5.1 Representations and Warranties of Parent and Merger Sub. Parent and
-------------------------------------------------------
Merger Sub hereby represent and warrant to the Company that the statements
contained in this Section 5.1 are true and correct, except to the extent
specifically set forth on the disclosure schedule previously delivered by Parent
to the Company (the "Parent Disclosure Schedule"). The Parent Disclosure
Schedule shall be arranged in sections and paragraphs corresponding to the
letter and numbered paragraphs contained in this Section 5.1, and the disclosure
in any paragraph shall qualify only the corresponding paragraph in this Section
5.1 or other paragraphs or sections to which it is clearly apparent (from a
plain reading of the disclosure) that such disclosure relates.
(a) Corporate Organization and Qualification. Each of Parent and its
----------------------------------------
subsidiaries is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of incorporation and is qualified
and in good standing as a foreign corporation in each jurisdiction where the
properties owned, leased or operated, or the business conducted, by it require
such qualification, except where failure to so qualify or be in good standing as
a foreign corporation would not have a Material Adverse Effect on Parent. Each
of Parent and its subsidiaries has all requisite power and authority (corporate
or otherwise) to own its properties and to carry on its business as it is now
being conducted. All of the subsidiaries of Parent are set forth in Section
5.1(a) of the Parent Disclosure Schedule. Parent has heretofore made available
to the Company complete and correct copies of its Certificate of Incorporation
and Bylaws and the charter documents of its subsidiaries, each as amended.
Merger Sub is a direct, wholly-owned subsidiary of Parent, was formed solely for
the purpose of engaging in the transactions contemplated hereby, has engaged in
no other business activities and has conducted its operations only as
contemplated hereby.
(b) Capitalization. The authorized capital stock of Parent consists of (i)
--------------
75,000,000 shares of common stock, $0.001 par value per share, of which
61,784,097 shares were issued and outstanding on December 9, 1999 and (ii)
3,000,000 shares of preferred stock, $0.001 par value per share, none of which
are issued or outstanding. All of the outstanding shares of capital stock of
Parent and its subsidiaries have been duly authorized and validly issued and are
fully paid and nonassessable. Parent has no outstanding stock appreciation
rights, phantom stock or similar rights. No Parent Shares are owned by any
subsidiary of Parent. All outstanding shares of capital stock or other equity
interests of the subsidiaries of Parent are owned by Parent or a direct or
indirect wholly-owned subsidiary of Parent, free and clear of all liens,
pledges, charges, encumbrances, claims and options of any nature. Except for
options to purchase 16,831,629 Parent Shares as of December 9, 1999 under the
1995 Incentive Stock Plan (the "Parent Option Plans") and rights under
-6-
<PAGE>
Parent Employee Stock Purchase Plan, there are no outstanding or authorized
options, warrants, calls, rights (including preemptive rights), commitments or
any other agreements of any character which Parent or any of its subsidiaries is
a party to, or may be bound by, requiring it to issue, transfer, grant, sell,
purchase, redeem or acquire any shares of capital stock or any securities or
rights convertible into, exchangeable for, or evidencing the right to subscribe
for, any shares of capital stock of Parent or any of its subsidiaries. There are
not as of the date hereof and there will not be at the Effective Time any
stockholder agreements, voting trusts or other agreements or understandings to
which Parent is a party or to which it is bound relating to the voting of any
shares of the capital stock of Parent.
(c) Fairness Opinion. The Board of Directors of Parent has received
----------------
an opinion in writing from Credit Suisse First Boston Corporation to the effect
that as of the date hereof and based upon and subject to the matters stated
therein, the Exchange Ratio is fair to Parent from a financial point of view. As
of the date hereof, such opinion has not been withdrawn, revoked or modified.
(d) Authority Relative to this Agreement. The Board of Directors of
------------------------------------
Merger Sub has declared the Merger advisable and Merger Sub has the requisite
corporate power and authority to approve, authorize, execute and deliver this
Agreement and to consummate the transactions contemplated hereby. The Board of
Directors of Parent has declared the issuance of Parent Shares advisable and
Parent has the requisite corporate power and authority to approve, authorize,
execute and deliver this Agreement and, subject to the approval by the
stockholders of Parent of the amendment to Parent's Certificate of Incorporation
to increase Parent's authorized capital stock in order to allow for the issuance
of Parent Shares by virtue of the Merger and the approval of the issuance of
Parent Shares by the stockholders of Parent in accordance with the NNM listing
requirements, to consummate the transactions contemplated hereby. This Agreement
and the consummation by Parent of the transactions contemplated hereby have been
duly and validly authorized by the Boards of Directors of Parent and Merger Sub
and no other corporate proceedings on the part of Parent or Merger Sub
(including, in the case of Merger Sub, all stockholder action by Parent as its
sole stockholder) are necessary to authorize this Agreement or to consummate the
transactions contemplated hereby (other than the approval by the stockholders of
Parent of the amendment to Parent's Certificate of Incorporation to increase
Parent's authorized capital stock in order to allow for the issuance of Parent
Shares by virtue of the Merger and the approval of the issuance of Parent Shares
by the stockholders of Parent in accordance with the NNM listing requirements).
This Agreement has been duly and validly executed and delivered by Parent and
Merger Sub and, assuming this Agreement constitutes the valid and binding
agreement of the Company, constitutes the valid and binding agreement of Parent
and Merger Sub, enforceable against Parent and Merger Sub in accordance with its
terms, subject, as to enforceability, to bankruptcy, insolvency, reorganization
and other laws of general applicability relating to or affecting creditors'
rights and to general principles of equity .
(e) Present Compliance with Obligations and Laws. Neither Parent nor
--------------------------------------------
any of its subsidiaries is: (i) in violation of its Certificate of Incorporation
or Bylaws or similar documents; (ii) in default in the performance of any
obligation, agreement or condition of any debt instrument which (with or without
the passage of time or the giving of notice, or both) affords to any Person the
-7-
<PAGE>
right to accelerate any indebtedness or terminate any right; (iii) in default
under or breach of (with or without the passage of time or the giving of notice)
any other contract to which it is a party or by which it or its assets are
bound; or (iv) in violation of any law, regulation, administrative order or
judicial order, decree or judgment (domestic or foreign) applicable to it or its
business or assets, except where any violation, default or breach under items
(ii), (iii), or (iv) would not, individually or in the aggregate, have a
Material Adverse Effect on Parent.
(f) Consents and Approvals; No Violation. Neither the execution and
------------------------------------
delivery of this Agreement nor the consummation by Parent of the transactions
contemplated hereby will (i) conflict with or result in any breach of any
provision of the respective Certificate of Incorporation (or other similar
documents) or Bylaws (or other similar documents) of Parent or any of its
subsidiaries; (ii) require any consent, approval, authorization or permit of, or
registration or filing with or notification to, any governmental or regulatory
authority, except (A) in connection with the applicable requirements, if any, of
the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR
Act"), (B) pursuant to the applicable requirements of the Securities Act of
1933, as amended (the "Securities Act"), and the rules and regulations
promulgated thereunder, and the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and the rules and regulations promulgated thereunder, (C) the
filing of the Certificate of Merger pursuant to the DGCL and appropriate
documents with the relevant authorities of other states in which Parent is
authorized to do business, (D) as may be required by any applicable state
securities laws, (E) the consents, approvals, orders, authorizations,
registrations, declarations and filings required under the antitrust laws of
foreign countries, as set forth in Section 5.1(f) of the Parent Disclosure
Schedule, or (F) where the failure to obtain such consent, approval,
authorization or permit, or to make such filing or notification, would not in
the aggregate have a Material Adverse Effect on Parent or adversely affect the
ability of Parent to consummate the transactions contemplated hereby; (iii)
result in a violation or breach of, or constitute (with or without notice or
lapse of time or both) a default (or give rise to any right of termination,
cancellation or acceleration or lien or other charge or encumbrance) under any
of the terms, conditions or provisions of any indenture, note, license, lease,
agreement or other instrument or obligation to which Parent or any of its
subsidiaries is a party or by which any of their assets may be bound, except for
such violations, breaches and defaults (or rights of termination, cancellation
or acceleration or lien or other charge or encumbrance) as to which requisite
waivers or consents have been obtained or which, in the aggregate, would not
have a Material Adverse Effect on Parent or adversely affect the ability of
Parent to consummate the transactions contemplated hereby; (iv) cause the
suspension or revocation of any authorizations, consents, approvals or licenses
currently in effect which would have a Material Adverse Effect on Parent; or (v)
assuming the consents, approvals, authorizations or permits and filings or
notifications referred to in this Section 5.1(f) are duly and timely obtained or
made and the approval by the stockholders of Parent of the amendment to Parent's
Certificate of Incorporation to increase parent's authorized capital stock in
order to allow for the issuance of Parent Shares by virtue of the Merger and
approval of the issuance of the Parent Shares by the stockholders of Parent in
accordance with the NNM listing requirements have been obtained, violate any
order, writ, injunction, decree, statute, rule or regulation applicable to
Parent or any of its subsidiaries or to any of their respective assets, except
for violations which would not in the aggregate have a Material Adverse Effect
on Parent or adversely affect the ability of Parent to consummate the
transactions contemplated hereby.
-8-
<PAGE>
(g) Litigation. There are no actions, suits, claims, investigations
----------
or proceedings pending or, to the knowledge of Parent, threatened against Parent
or any of its subsidiaries that, alone or in the aggregate would be reasonably
likely to result in obligations or liabilities of Parent or any of its
subsidiaries that, alone or in the aggregate, would have a Material Adverse
Effect on Parent or a material adverse effect on the parties' ability to
consummate the transactions contemplated by this Agreement. Neither Parent nor
any of its subsidiaries is subject to any outstanding order, writ, injunction or
decree which (i) has or may have the effect of prohibiting or impairing any
business practice of Parent or any of its subsidiaries, any acquisition of
property (tangible or intangible) by Parent or any of its subsidiaries, the
conduct of the business by Parent or any of its subsidiaries, or Parent's
ability to perform its obligations under this Agreement or (ii) insofar as can
be reasonably foreseen, individually or in the aggregate, would have a Material
Adverse Effect on Parent.
(h) SEC Reports; Financial Statements.
---------------------------------
(i) Since January 1, 1997, Parent has filed all forms, reports
and documents with the Securities and Exchange Commission (the "SEC") required
to be filed by it pursuant to the federal securities laws and the SEC rules and
regulations thereunder, all of which complied in all material respects with all
applicable requirements of the Securities Act and the Exchange Act and the rules
and regulations promulgated thereunder (collectively, the "Parent SEC Reports").
None of the Parent SEC Reports, including, without limitation, any financial
statements or schedules included therein, at the time filed (or if amended or
superseded by a filing prior to the date of this Agreement, then on the date of
such filing) contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading. None of Parent's subsidiaries is required to file any
forms, reports or other documents with the SEC.
(ii) The consolidated balance sheets and the related consolidated
statements of income, stockholders' equity (deficit) and cash flows (including
the related notes thereto) of Parent included in the Parent SEC Reports
(collectively, "Parent Financial Statements") comply as to form in all material
respects with applicable accounting requirements and the published rules and
regulations of the SEC with respect thereto, have been prepared in accordance
with generally accepted accounting principles applied on a basis consistent
throughout the periods involved (except as otherwise noted therein or, in the
case of unaudited interim financial statements, as may be permitted by the SEC
on Form 10-Q under the Exchange Act), and present fairly the consolidated
financial position of Parent and its consolidated subsidiaries as of their
respective dates, and the consolidated results of their operations and their
cash flows for the periods presented therein (subject, in the case of the
unaudited interim financial statements, to normal and recurring year-end
adjustments). Since January 1, 1999, there has not been any material change, by
Parent or any of its subsidiaries, in accounting principles, methods or policies
for financial accounting purposes except as required by concurrent changes in
generally accepted accounting principles.
(i) No Liabilities; Absence of Certain Changes or Events. Neither
----------------------------------------------------
Parent nor any of its subsidiaries has any material indebtedness, obligations or
liabilities of any kind (whether
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accrued, absolute, contingent or otherwise, and whether due or to become due or
asserted or unasserted), and, to knowledge of Parent, there is no reasonable
basis for the assertion of any material claim or liability of any nature against
Parent or any of its subsidiaries, except for liabilities (i) which are fully
reflected in, reserved against or otherwise described in the Parent Financial
Statements for the period ending September 30, 1999, (ii) which have been
incurred after September 30, 1999 in the ordinary course of business, consistent
with past practice, or (iii) which are obligations to perform under executory
contracts in the ordinary course of business (none of which is a liability
resulting from a breach of contract or warranty, tort, infringement or legal
action). Since September 30, 1999, the business of Parent and its subsidiaries
has been carried on only in the ordinary and usual course, and there has not
been any Material Adverse Effect on Parent and no event has occurred and no fact
or set of circumstances has arisen which has resulted in or could reasonably be
expected to result in a Material Adverse Effect on Parent. Since September 30,
1999, to the knowledge of Parent, no material customer or supplier of Parent or
its subsidiaries has threatened, in writing, to alter materially its
relationship with Parent or its subsidiaries. Since September 30, 1999, neither
Parent nor any of its subsidiaries has agreed to a waiver or release of any
material right or claim (including without limitation to any write off or other
compromise of any material account receivable) outside of the ordinary course of
business consistent with past practice.
(j) Brokers and Finders. Except for the fees and expenses payable to
-------------------
Credit Suisse First Boston or Launchpad Consulting, LLC, which fees and expenses
are reflected in their agreements with Parent, a true and complete copy of which
(including all amendments) has been furnished to the Company, neither Parent nor
any of its subsidiaries has employed any investment banker, broker, finder,
consultant or intermediary in connection with the transactions contemplated by
this Agreement which would be entitled to any investment banking, brokerage,
finder's or similar fee or commission in connection with this Agreement or the
transactions contemplated hereby.
(k) S-4 Registration Statement and Proxy Statement/Prospectus. None
---------------------------------------------------------
of the information supplied or to be supplied by Parent for inclusion or
incorporation by reference in the S-4 Registration Statement or the Joint Proxy
Statement will (i) in the case of the S-4 Registration Statement, at the time it
becomes effective or at the Effective Time, contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein not misleading, or (ii) in
the case of the Joint Proxy Statement, at the time of the mailing of the Joint
Proxy Statement and at the time of the Stockholder Meetings, contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they are made, not misleading. If at any time
prior to the Effective Time any event with respect to Parent, Merger Sub or any
of their respective affiliates, officers and directors or any of its
subsidiaries should occur which is required to be described in an amendment of,
or a supplement to, the Joint Proxy Statement or the S-4 Registration Statement,
Parent should promptly inform the Company, such event shall be so described, and
such amendment or supplement shall be promptly filed with the SEC and, as
required by law, disseminated to the stockholders of Parent and the Company. The
S-4 Registration Statement will (with respect to Parent and Merger Sub)
comply as to form in all material respects with the requirements of the
Securities Act and the rules and regulations promulgated thereunder. The Joint
Proxy Statement will (with respect to Parent and Merger Sub)
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<PAGE>
comply as to form in all material respects with the requirements of the Exchange
Act and the rules and regulations promulgated thereunder.
(l) Taxes.
-----
(i) Parent and each of its subsidiaries has timely filed all federal,
state, local and foreign returns, information statements and reports relating to
Taxes ("Returns") required by applicable Tax law to be filed by Parent and each
of its subsidiaries, except for any such failures to file that could not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect on Parent. All Taxes owed by Parent or any of its subsidiaries to
a taxing authority, or for which Parent or any of its subsidiaries is liable,
whether to a taxing authority or to other Persons or entities under a
Significant Tax Agreement, as of the date hereof, have been paid and, as of the
Effective Time, will have been paid, except for any such failure to pay that
could not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect on Parent. Parent has made accruals for Taxes on the
Parent Financial Statements which are adequate to cover any Tax liability of
Parent and each of its subsidiaries determined in accordance with generally
accepted accounting principles through the date of the Parent Financial
Statements, except where failures to make such accruals or provisions could not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect on Parent.
(ii) Except to the extent that any such failure to withhold could not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect on Parent, Parent and each of its subsidiaries have withheld with
respect to its employees all federal and state income taxes, FICA, FUTA and
other Taxes required to be withheld.
(iii) There is no Tax deficiency outstanding, proposed or assessed
against Parent or any of its subsidiaries, except any such deficiency that, if
paid, could not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect on Parent. Neither Parent nor any of its
subsidiaries executed or requested any waiver of any statute of limitations on
or extending the period for the assessment or collection of any federal or
material state Tax that is still in effect.
(iv) No federal or state Tax audit or other examination of Parent or
any of its subsidiaries is presently in progress, nor has Parent or any of its
subsidiaries been notified in writing of any request for such federal or
material state Tax audit or other examination, except in all cases for Tax
audits and other examinations which could not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect on Parent.
(v) Neither Parent nor any of its subsidiaries has filed any consent
agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2)
of the Code apply to any disposition of a subsection (f) asset (as defined in
Section 341(f)(4) of the Code) owned by Parent.
(vi) Neither Parent nor any of its subsidiaries is a party to (A) any
agreement with a party other than Parent or any of its subsidiaries providing
for the allocation or
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payment of Tax liabilities or payment for Tax benefits with respect to a
consolidated, combined or unitary Return which Return includes or included
Parent or any subsidiary or (B) any Significant Tax Agreement other than any
Significant Tax Agreement described in (A).
(vii) Except for the group of which Parent and its subsidiaries are
now presently members, neither Parent nor any of its subsidiaries has ever been
a member of an affiliated group of corporations within the meaning of Section
1504 of the Code.
(viii) Neither Parent nor any of its subsidiaries has agreed to make
nor is it required to make any adjustment under Section 481(a) of the Code by
reason of a change in accounting method or otherwise which have not yet been
taken into account.
(ix) Parent is not, and has not at any time been, a "United States
Real Property Holding Corporation" within the meaning of Section 897(c)(2) of
the Code.
(m) Employee Benefits.
-----------------
(i) Section 5.2(m)(i) of the Parent Disclosure Schedule lists each
"employee pension benefit plan" (as such term is defined in Section 3(2) of
ERISA), "employee welfare benefit plan" (as such term is defined in Section 3(1)
of ERISA), material personnel or payroll policy (including vacation time,
holiday pay, service awards, moving expense reimbursement programs and sick
leave) or material fringe benefit, severance agreement or plan or any medical,
hospital, dental, life or disability plan, excess benefit plan, bonus, stock
option, stock purchase, or other incentive plan (including any equity or equity-
based plan), tuition reimbursement, automobile use, club membership, parental or
family leave, top hat plan or deferred compensation plan, salary reduction
agreement, change-of-control agreement, employment agreement, consulting
agreement, collective bargaining agreement, indemnification agreement, or
retainer agreement, or any other material benefit plan, policy, program,
arrangement, agreement or contract, whether or not written or terminated, with
respect to any employee, former employee, director, independent contractor, or
any beneficiary or dependent thereof maintained, sponsored, adopted or
administered by Parent or any current or former Plan Affiliate or to which
Parent or any current or former Plan Affiliate has made contributions to,
obligated itself or had any liability with respect to (all such plans, policies,
programs, arrangements, agreements and contracts, whether or not set forth in
Section 5.1(m) of the Parent Disclosure Schedule or on the Parent Financial
Statements are referred to in this Agreement as "Parent Scheduled Plans").
(ii) Parent has delivered or made available to the Company a complete
and accurate copy of each written Parent Scheduled Plan, together with, if
applicable, a copy of audited financial statements, actuarial reports and Form
5500 Annual Reports (including required schedules), if any, for the three (3)
most recent plan years, the most recent IRS determination letter or IRS
recognition of exemption; each other material letter, ruling or notice issued by
a governmental body with respect to each such plan, a copy of each trust
agreement, insurance contract or other funding vehicle, if any, with respect to
each such plan, the most recent PBGC Form 1 with respect to each such plan, if
any, the current summary plan description and summary of material modifications
thereto with respect to each such plan, Form 5310 and any related filings with
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<PAGE>
the PBGC and with respect to the last six (6) Plan years, for each Plan subject
to Title IV of ERISA, general notification to employees of their rights under
Code Section 4980B and form of letter(s) distributed upon the occurrence of a
qualifying event described in Code Section 4980B, in the case of a Parent
Scheduled Plan that is a "group health plan" as defined in Code Section 162(i),
and a copy or description of each other general explanation or written or oral
communication which describes a material term of each Parent Scheduled Plan that
has not previously been disclosed to the Company pursuant to this Section.
Section 5.1(m) of the Parent Disclosure Schedule contains a description of the
material terms of any unwritten Parent Scheduled Plan as comprehended to the
Closing Date. Except as set forth in Section 5.1(m) of the Parent Disclosure
Schedule, there are no negotiations, demands or proposals which are pending or
threatened which concern matters now covered, or that would be covered, by the
foregoing types of unwritten Plans.
(iii) Except as could not reasonably give rise, whether individually
or in the aggregate, to a Material Adverse Effect to Parent or Merger Sub:
(1) Each Parent Scheduled Plan (A) has been and currently
complies in form and in operation in all material respects with all applicable
requirements of ERISA and the Code, and any other legal requirements; (B) has
been and is operated and administered in material compliance with its terms
(except as otherwise required by law); (C) has been and is operated in
compliance with applicable legal requirements in such a manner as to qualify,
where appropriate, for both Federal and state purposes, for income tax
exclusions to its participants, tax-exempt income for its funding vehicle, and
the allowance of deductions and credits with respect to contributions thereto;
and (D) where appropriate, has received a favorable determination letter or
recognition of exemption from the Internal Revenue Service.
(2) With respect to each Parent Scheduled Plan, there are no
claims or other proceedings pending or, to the knowledge of Parent, threatened
with respect to the assets thereof (other than routine claims for benefits), and
there are no facts which could reasonably give rise to any material liability,
claim or other proceeding against any Parent Scheduled Plan, any fiduciary or
plan administrator or other Person dealing with any Parent Scheduled Plan or the
assets of any such Parent Scheduled Plan.
(3) With respect to each Parent Scheduled Plan, to the knowledge
of Parent, no Person: (A) has entered into any "prohibited transaction," as such
term is defined in ERISA or the Code and the regulations, administrative rulings
and case law thereunder that is not otherwise exempt under Code Section 4975 or
ERISA Section 408 (or any administrative class exemption issued thereunder); (B)
has materially breached a fiduciary obligation or violated Sections 402, 403,
405, 503, 510 or 511 of ERISA; (C) has any material liability for any failure to
act or comply in connection with the administration or investment of the assets
of such plans; or (D) engaged in any transaction or otherwise acted with respect
to such plans in such a manner which could subject the Company, or any fiduciary
or plan administrator or any other Person dealing with any such plan, to
material liability under Section 409 or 502 of ERISA or Sections 4972 or 4976
through 4980B of the Code.
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<PAGE>
(4) Each Parent Scheduled Plan (other than any stock option
plan) may be amended, terminated, modified or otherwise revised by Parent, on
and after the Closing, without further material liability to Parent (other than
ordinary administrative expenses or routine claims for benefit plans),
including, but not limited to, any withdrawal liability under ERISA for any
multi-employer plan or any liability under any Parent Scheduled Plan subject to
Title IV of ERISA.
(5) None of Parent or any current or former Parent Plan
Affiliate has at any time participated in, made contributions to or had any
other liability with respect to any Parent Scheduled Plan which is a "multi-
employer plan" as defined in Section 4001 of ERISA, a "multi-employer plan"
within the meaning of Section 3(37) of ERISA, a "multiple employer plan" within
the meaning of Section 413(c) of the Code, a "multiple employer welfare
arrangement" within the meaning of Section 3(40) of ERISA or a plan that is
subject to Title IV of ERISA.
(6) No Parent Scheduled Plan provides, or reflects or represents
any liability to provide retiree health to any person for any reason, except as
may be required by COBRA or other applicable statute, and neither Parent nor any
Plan Affiliate has ever represented, promised or contracted (whether in oral or
written form) to any current or former employee, consultant or director (either
individually or as a group) or any other person that such current or former
employee(s) or other person would be provided with retiree health, except to the
extent required by applicable continuation coverage statute.
(7) No Parent Scheduled Plan has incurred an "accumulated
funding deficiency" as such term is defined in Section 302 of ERISA or Section
412 of the Code, whether or not waived, or has posted or is required to provide
security under Code Section 401(a)(29) or Section 307 of ERISA; no event has
occurred which has or could result in the imposition of a lien under Code
Section 412 or Section 302 of ERISA, nor has any liability to the Pension
Benefit Guaranty Corporation (the "PBGC") (except for payment of premiums) been
incurred or reportable event within the meaning of Section 4043 of ERISA
occurred with respect to any such plan; and the PBGC has not threatened or taken
steps to institute the termination of any such plan;
(8) The requirements of COBRA and the Health Insurance
Portability and Accountability Act, the requirements of the Family Medical Leave
Act of 1993, as amended, the requirements of the Women's Health and Cancer
Rights Act, the requirements of the Newborns' and Mothers' Health Protection Act
of 1996, or any amendment to each such act, or any similar provisions of state
law applicable to its employees, have, in all material respects, been satisfied
with respect to each Parent Scheduled Plan.
(9) All contributions, payments, premiums, expenses,
reimbursements or accruals for all periods ending prior to or as of the Closing
for each Parent Scheduled Plan (including periods from the first day of the then
current plan year to the Closing) shall have been made or accrued on Parent
financial statements (in accordance with generally applied accounting
principles, including FAS 87, 88, 106 and 112) and each such plan otherwise does
not have nor could have any unfunded liability (including benefit liabilities as
defined in Section 4001(a)(16) of ERISA) which is not reflected on Parent
financial statements. Any
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<PAGE>
contribution made or accrued with respect to any Parent Scheduled Plan has been
or, to the knowledge of Parent, will be intended to be, fully deductible by
Parent.
(10) Neither Parent nor a Plan Affiliate has any material
liability (A) for the termination of any single employer plan under Section 4062
of ERISA or any multiple employer plan under Section 4063 of ERISA, (B) for any
lien imposed under Section 302(f) of ERISA or Section 412(n) of the Code, (C)
for any interest payments required under Section 302(e) of ERISA or Section
412(m) of the Code, (D) for any excise tax imposed by Code Sections 4971, 4972,
4977, or 4979, or (E) for any minimum funding contributions under Section
302(c)(11) of ERISA or Code Section 412(c)(11).
(11) All Parent Scheduled Plans to the extent applicable, are in
compliance with Section 1862(b)(1)(A)(i) of the Social Security Act and neither
Parent nor any Plan Affiliate has any liability for any excise tax imposed by
Code Section 5000.
(12) With respect to any Parent Scheduled Plan which is a
welfare plan as defined in Section 3(1) of ERISA; (A) each such welfare plan
which is intended to meet the requirements for tax-favored treatment under
Subchapter B of Chapter 1 of the Code materially meets such requirements; and
(B) there is no disqualified benefit (as such term is defined in Code Section
4976(b)) which would subject Parent or any Plan Affiliate to a tax under Code
Section 4976(a).
(13) Each Parent Scheduled Plan that has been adopted or
maintained by Parent or any Plan Affiliate, whether informally or formally, or
with respect to which Parent or any Plan Affiliate will or may have any
liability, for the benefit of Parent Employees who perform services outside the
United States (the "Parent International Employee Plans") has been established,
maintained and administered in material compliance with its terms and conditions
and with the requirements prescribed by any and all statutory or regulatory laws
that are applicable to such Parent International Employee Plan. Furthermore, no
Parent International Employee Plan has unfunded liabilities, that, as of the
Effective Time, will not be offset by insurance or fully accrued. Except as
required by law, no condition exists that would prevent Parent or any Plan
Affiliate from terminating or amending any Parent International Employee Plan at
any time for any reason without material liability to Parent or any Plan
Affiliate (other than ordinary administration expenses or routine claims for
benefits). To the extent any such Parent International Employee Plan has not
been disclosed or provided prior to the date of this Agreement, Parent agrees to
use its best efforts to disclose and provide such plan prior to the Effective
Time.
(iv) Other than by reason of actions taken by Parent following the
Closing, the consummation of the transactions contemplated by this Agreement
will not (A) entitle any current or former employee of Parent to severance pay,
unemployment compensation or any other payment, (B) accelerate the time of
payment or vesting of any payment (other than for a terminated or frozen tax-
qualified plan, pursuant to a requirement herein to freeze or terminate such
plan), cause the forgiveness of any indebtedness, or increase the amount of any
compensation due to any such employee or former employee, (C) result in any
prohibited transaction described in Section 406 of ERISA or Section 4975 of the
Code for which an exemption is not available, or (D) give rise to the
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<PAGE>
payment of any amount that would not be deductible pursuant to the terms of
Section 280G of the Code.
(v) As used in this Agreement, with respect to any Person the term
"Plan Affiliate" shall mean each other Person with whom such Person constitutes
or has constituted all or part of a controlled group, or which would be treated
or has been treated with such Person as under common control or whose employees
would be treated or have been treated as employed by such Person, under Section
414 of the Code and any regulations, administrative rulings and case law
interpreting the foregoing.
(n) Parent Intangible Property.
--------------------------
(i) Parent and its subsidiaries own, or are licensed or otherwise
possess legally enforceable rights to use, all patents, trademarks, trade names,
service marks, copyrights and mask works, all applications for and registrations
of such patents, trademarks, trade names, service marks, copyrights and mask
works, and all processes, formulae, methods, schematics, technology, know-how,
computer software programs or applications and tangible or intangible
proprietary information or material that are necessary to conduct the business
of Parent and its subsidiaries as currently conducted or planned to be conducted
(the "Parent Intellectual Property Rights"). Section 5.1(n) of the Parent
Disclosure Schedule sets forth a list of the material software licenses to which
Parent or its subsidiaries is a party.
(ii) Neither Parent nor any of its subsidiaries is or will be as a
result of the execution and delivery of this Agreement or the performance of its
obligations under this Agreement, in breach in any material respect of any
material license, sublicense or other agreement relating to the Parent
Intellectual Property Rights or any license, sublicense or other agreement
pursuant to which Parent or any of its subsidiaries is authorized to use any
third party patents, trademarks or copyrights, including software, which are
used in the manufacture of, incorporated in, or form a part of any product of
Parent or any of its subsidiaries.
(iii) To Parent's knowledge, all patents, registered trademarks,
service marks and copyrights held by Parent or any of its subsidiaries which are
material to its business are valid and enforceable. Neither Parent nor any of
its subsidiaries has been sued in any suit, action or proceeding which involves
a claim of infringement of any patent, trademark, service mark or copyright or
the violation of any trade secret or other proprietary rights of any third
party, which infringement would be reasonably likely to have a Material Adverse
Effect on Parent.
(iv) Parent and its subsidiaries have taken reasonable security
measures to safeguard and maintain their property rights in all Parent
Intellectual Property Rights owned by Parent or its subsidiaries. Parent and its
subsidiaries maintain and in all material respects abide by a policy that
officers, employees and consultants of Parent or any of its subsidiaries, except
for clerical and other lower level support personnel (e.g. mail room,
messengers, etc.), execute an agreement, in a form or forms previously provided
to the Company, regarding (i) the protection of proprietary information, (ii)
the assignment to Parent (or an applicable subsidiary) of all Parent
Intellectual Property Rights arising from services performed for Parent or any
of its subsidiaries by such
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<PAGE>
Persons, (iii) the ownership by Parent or one of its subsidiaries of all Parent
Intellectual Property Rights arising from the services performed for Parent or
one of its subsidiaries by such Persons and (iv) limitations on the individual's
ability to solicit or hire Parent's or its subsidiaries' employees or
consultants.
(o) Agreements, Contracts and Commitments; Material Contracts. Except
---------------------------------------------------------
as set forth in the Section 5.1(o) of the Parent Disclosure Schedule, as of the
date hereof, neither Parent nor any of its subsidiaries is a party to or is
bound by:
(i) any contract relating to the borrowing of money, the
guaranty of another Person's borrowing of money, or the creation of an
encumbrance or lien on the assets of the Parent or any of its subsidiaries and
with outstanding obligations in excess of $1,000,000;
(ii) any employment or consulting agreement, contract or
commitment with any officer or director level employee or member of Parent's
Board of Directors or any other employee who is one of the fifty (50) most
highly compensated employees, including base salary and bonuses, (the "Parent
Key Employees"), other than those that are terminable by Parent or any of its
subsidiaries on no more than thirty (30) days notice without liability or
financial obligation or benefits generally available to employees of Parent,
except to the extent general principles of wrongful termination law may limit
Parent's or any of its subsidiaries' ability to terminate employees at will;
(iii) any agreement or plan, including, without limitation, any
stock option plan, stock appreciation right plan or stock purchase plan, any of
the benefits of which will be increased, or the vesting of benefits of which
will be accelerated, by the occurrence of any of the transactions contemplated
by this Agreement or the value of any of the benefits of which will be
calculated on the basis of any of the transactions contemplated by this
Agreement;
(iv) any agreement of indemnification or guaranty by Parent or
any of its subsidiaries not entered into in the ordinary course of business
other than indemnification agreements between Parent or any of its subsidiaries
and any of its officers or directors in standard forms as filed by Parent with
the SEC;
(v) any agreement, contract or commitment containing any
covenant limiting the freedom of Parent or any of its subsidiaries to engage in
any line of business or conduct business in any geographical area, compete with
any person or granting any exclusive distribution rights;
(vi) any joint venture, partnership, and other contract (however
named) involving a sharing of profits or losses by the Parent or any subsidiary
with any other Person;
(vii) any contract for capital expenditures in excess of
$1,000,000;
(viii) any agreement, contract or commitment currently in force
relating to the disposition or acquisition of assets not in the ordinary course
of business;
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<PAGE>
(ix) any agreement, contract or commitment for the purchase of
any ownership interest in any corporation, partnership, joint venture or other
business enterprise for consideration in excess of $2,500,000, in any case which
includes all escrow and earn-out agreements with outstanding obligations; or
(x) any material joint marketing, distribution or development
agreement or any other material contract of the Parent or any of its
subsidiaries not previously filed with the SEC and not otherwise listed in any
other section of the Parent Disclosure Schedule.
A true and complete copy (including all amendments) of each Parent
Contract (or if standard forms are used, copies of the applicable forms with an
indication of any material differences from the actual listed Parent Contract),
or a summary of each oral contract, has been made available to the Company,
excluding those Parent Contracts referenced in clause (vii). Each contract set
forth in Section 5.1(o)(i)-(x) of the Parent Disclosure Schedule (a "Parent
Contract") and each Parent Material Contract (as defined below) is in full force
and effect, and is a legal, valid and binding obligation of Parent or a
subsidiary of Parent and, to the knowledge of Parent, each of the other parties
thereto, enforceable in accordance with its terms, except (a) that the
enforcement thereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and (ii) general principles of equity
(regardless of whether enforceability is considered in a proceeding in equity or
at law) and (b) as would not, individually or in the aggregate, be reasonably
expected to result in a Material Adverse Effect on Parent. No condition exists
or event has occurred which (whether with or without notice or lapse of time or
both, or the happening or occurrence of any other event) would constitute a
default by Parent or a subsidiary of Parent or, to the knowledge of Parent, any
other party thereto under, or result in a right in termination of, any Parent
Contract or Parent Material Contract, except as would not, individually or in
the aggregate, be reasonably expected to result in a Material Adverse Effect on
Parent. The term "Parent Material Contract" shall mean any contract that is
material to Parent and its subsidiaries, taken as a whole. Except as provided
for herein, at the Effective Time, no Person will have the right, by contract or
otherwise, to become, nor does any entity have the right to designate or cause
Parent to appoint a Person as, a director of Parent or any subsidiary of Parent.
(p) Unlawful Payments and Contributions. To the knowledge of Parent,
-----------------------------------
neither Parent, any subsidiary of Parent nor any of their respective directors,
officers, employees or agents has, with respect to the businesses of Parent or
its subsidiaries, (i) used any funds for any unlawful contribution, endorsement,
gift, entertainment or other unlawful expense relating to political activity;
(ii) made any direct or indirect unlawful payment to any foreign or domestic
government official or employee; (iii) violated or is in violation of any
provision of the Foreign Corrupt Practices Act of 1977, as amended; or (iv) made
any bribe, rebate, payoff, influence payment, kickback or other unlawful payment
to any Person or entity.
(q) Listings. Parent's securities are not listed, or quoted, for
--------
trading on any U.S. domestic or foreign securities exchange, other than the NNM.
(r) Environmental Matters. Except as disclosed in Parent's SEC
---------------------
Reports filed prior to the date hereof, (i) Parent and its subsidiaries and the
operations, assets and properties
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<PAGE>
thereof are in material compliance with all Environmental Laws; (ii) there are
no judicial or administrative actions, suits, proceedings or investigations
pending or, to the knowledge of Parent, threatened against Parent or any
subsidiary of Parent alleging the violation of any Environmental Law and neither
Parent nor any subsidiary of Parent has received notice from any governmental
body or Person alleging any violation of or liability under any Environmental
Laws, in either case which could reasonably be expected to result in material
Environmental Costs and Liabilities; (iii) to the knowledge of Parent, there are
no facts, circumstances or conditions relating to, arising from, associated with
or attributable to Parent or its subsidiaries or any real property currently or
previously owned, operated or leased by Parent or its subsidiaries that could
reasonably be expected to result in material Environmental Costs and
Liabilities; and (iv) to the knowledge of Parent, neither Parent nor any of its
subsidiaries has ever generated, transported, treated, stored, handled or
disposed of any Hazardous Material (as hereinafter defined) at any site,
location or facility in a manner that could create any material Environmental
Costs and Liabilities under any Environmental Law, and no such Hazardous
Material has been or is currently present on, in, at or under any real property
owned or used by Parent or any of its subsidiaries in a manner that could create
any Environmental Costs and Liabilities (including without limitation,
containment by means of any underground or aboveground storage tank). For the
purpose of Sections 5.1(s) and 5.2(s), the following terms have the following
definitions: (X) "Environmental Costs and Liabilities" means any losses,
liabilities, obligations, damages, fines, penalties, judgments, actions, claims,
costs and expenses (including, without limitation, fees, disbursements and
expenses of legal counsel, experts, engineers and consultants and the costs of
investigation and feasibility studies, remedial or removal actions and cleanup
activities) arising from or under any Environmental Law; (Y) "Environmental
Laws" means any applicable federal, state, local, or foreign law (including
common law), statute, code, ordinance, rule, regulation or other requirement
relating to the environment, natural resources, or public or employee health and
safety; and (Z) "Hazardous Material" means any substance, material or waste
regulated by federal, state or local government, including, without limitation,
any substance, material or waste which is defined as a "hazardous waste,"
"hazardous material," "hazardous substance," "toxic waste" or "toxic substance"
under any provision of Environmental Law and including but not limited to
petroleum and petroleum products.
(s) Title to Properties; Liens; Condition of Properties.
---------------------------------------------------
(i) Parent and its subsidiaries have good and marketable title to, or
a valid leasehold interest in, the real and personal property, located on their
premises or shown on their most recent balance sheet or acquired after the date
thereof. None of the property owned or used by Parent or any of its subsidiaries
is subject to any mortgage, pledge, deed of trust, lien (other than for taxes
not yet due and payable), conditional sale agreement, security title,
encumbrance, or other adverse claim or interest of any kind. Since September 30,
1999, there has not been any sale, lease, or any other disposition or
distribution by Parent or any of its subsidiaries of any of its assets or
properties, material to Parent and its subsidiaries, taken as a whole, except
transactions in the ordinary and regular course of business.
(ii) Parent has delivered to the Company a schedule of all material
leases, subleases, rental agreements, contracts of sale, tenancies or licenses
related to any of the real
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<PAGE>
property used by Parent or any of its subsidiaries in their respective
businesses. All such leases are valid, binding and enforceable in accordance
with their terms against the parties thereto, and each such lease is subsisting
and no default exists under any thereof. Neither Parent nor any of its
subsidiaries has received notice that any party to any such lease intends to
cancel, terminate or refuse to renew the same or to exercise or decline to
exercise any option or any right thereunder.
(t) Labor and Employee Relations.
----------------------------
(i) Neither Parent nor any of its subsidiaries is party to any
employment, consulting, non-competition, severance, golden parachute,
indemnification agreement or any other material employment or consulting
agreement providing for payments or benefits or the acceleration of payments or
benefits upon the change of control of Parent (including, without limitation,
any contract to which Parent is a party involving employees of Parent).
(ii) Except as required by applicable law in non-U.S. jurisdictions,
(A) none of the employees of Parent or any of its subsidiaries is represented in
his or her capacity as an employee of such company by any labor organization;
(B) neither Parent nor any of its subsidiaries has recognized any labor
organization nor has any labor organization been elected as the collective
bargaining agent of any of their employees, nor has Parent or any of its
subsidiaries signed any collective bargaining agreement or union contract
recognizing any labor organization as the bargaining agent of any of their
employees; and (C) to the knowledge of Parent there is no active or current
union organization activity involving the employees of Parent or any of its
subsidiaries, nor has there ever been union representation involving employees
of Parent or any of its subsidiaries.
(iii) Except for complaints which, in the aggregate, do not represent
claims which could reasonably involve liabilities in excess of $2,000,000, there
are no complaints against Parent or any of its subsidiaries pending or, to the
knowledge of Parent, overtly threatened before the National Labor Relations
Board or any similar foreign, state or local labor agencies, or before the Equal
Employment Opportunity Commission or any similar foreign, state or local agency,
or before any other governmental agency or entity by or on behalf of any
employee or former employee of Parent or any of its subsidiaries.
(iv) Parent has provided to the Company a description of all written
employment policies under which Parent and each subsidiary is operating.
(v) Parent and each of its subsidiaries is in compliance with all
Federal, foreign (as applicable), and state laws regarding employment practices,
including laws relating to workers' safety, sexual harassment or discrimination,
except where the failure to so be in compliance, individually or in the
aggregate, would not have a Material Adverse Effect on Parent.
(vi) To the knowledge of Parent, as of the date hereof, no executive,
key employee or group of employees has any plans to terminate his or her
employment with Parent or any of its subsidiaries.
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<PAGE>
(u) Permits. Parent and each of its subsidiaries hold all licenses,
-------
permits, registrations, orders, authorizations, approvals and franchises which
are required to permit it to conduct its businesses as presently conducted,
except where the failure to hold such licenses, permits, registrations, orders,
authorizations, approvals or franchises would not, individually or in the
aggregate, have a Material Adverse Effect on Parent. All such material licenses,
permits, registrations, orders, authorizations, approvals and franchises are
now, and will be after the Closing, valid and in full force and effect, and
Parent shall have full benefit of the same, except where the failure to be valid
and in full force and effect or to have the benefit of any such license, permit,
registration, order, authorization, approval or franchise would not,
individually or in the aggregate, have a Material Adverse Effect on Parent.
Neither Parent nor any of its subsidiaries has received any notification of any
asserted present failure (or past and unremedied failure) by it to have obtained
any such license, permit, registration, order, authorization, approval or
franchise except where such failures would not, in the aggregate, have a
Material Adverse Effect on Parent.
(v) Warranty or Other Claims. Parent has provided to the Company a copy of
------------------------
its standard form agreement for services. It is Parent's practice and policy to
adhere to the form terms, except to the extent not commercially practicable.
(w) Transactions with Affiliates. Except as set forth in the Parent SEC
----------------------------
Reports filed prior to the date of this Agreement, since the date of Parent's
last proxy statement to its stockholders, no event has occurred that would be
required to be reported by Parent as a Certain Relationship or Related
Transaction, pursuant to Item 404 of Regulation S-K promulgated by the SEC.
(x) Computer Software. The occurrence in or use by any material Software
-----------------
used by Parent and its subsidiaries of dates on or after January 1, 2000 will
not result in any Malfunction.
(y) State Takeover Laws. The Board of Directors of Parent has taken all
-------------------
necessary action so that the restrictions contained in Section 203 of the DGCL
applicable to a "business combination" (as defined in Section 203) will not
apply to the execution, delivery or performance of this Agreement or the
Stockholder Agreements or the consummation of the Merger or the other
transactions contemplated by this Agreement or the Stockholder Agreements. No
other state takeover statute or similar statute or regulation is applicable to
this Agreement or the Stockholder Agreements.
5.2 Representations and Warranties of the Company The Company hereby.
---------------------------------------------
represents and warrants to Parent and Merger Sub that the statements contained
in this Section 5.2 are true and correct, except to the extent specifically set
forth on the disclosure schedule previously delivered by the Company to Parent
and Merger Sub (the "Company Disclosure Schedule"). The Company Disclosure
Schedule shall be arranged in sections and paragraphs corresponding to the
letter and numbered paragraphs contained in this Section 5.2, and the disclosure
in any paragraph shall qualify only the corresponding paragraph in this Section
5.2 or other paragraphs or sections to which it is clearly apparent (from a
plain reading of the disclosure) that such disclosure relates.
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(a) Corporate Organization and Qualification. Each of the Company and its
----------------------------------------
subsidiaries is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of incorporation and is qualified
and in good standing as a foreign corporation in each jurisdiction where the
properties owned, leased or operated, or the business conducted, by it require
such qualification, except where failure to so qualify or be in good standing as
a foreign corporation would not have a Material Adverse Effect on the Company.
Each of the Company and its subsidiaries has all requisite power and authority
(corporate or otherwise) to own its properties and to carry on its business as
it is now being conducted. All of the subsidiaries of the Company are set forth
in Section 5.2(a) of the Company Disclosure Schedule. The Company has heretofore
made available to Parent complete and correct copies of its Certificate of
Incorporation and Bylaws and the charter documents of its subsidiaries, each as
amended.
(b) Capitalization. The authorized capital stock of the Company consists of
--------------
(i) 200,000,000 shares of common stock, $0.001 par value per share, of which
90,645,130 shares were issued and outstanding on November 30, 1999, and (ii)
1,000,000 shares of preferred stock, $0.001 par value per share, none of which
is issued or outstanding. All of the outstanding shares of capital stock of the
Company and its subsidiaries have been duly authorized and validly issued and
are fully paid and nonassessable. The Company has no outstanding stock
appreciation rights, phantom stock or similar rights. All outstanding shares of
capital stock or other equity interests of the subsidiaries of the Company are
owned by the Company or a direct or indirect wholly-owned subsidiary of the
Company, free and clear of all liens, pledges, charges, encumbrances, claims and
options of any nature. Except for options to purchase 35,484,796 Company Shares
(i) issued pursuant to the 1996 Stock Option Plan, 1996 Equity Compensation
Plan, the 1997 Acquisition Stock Option Plan and the 1999 Non-Qualified Stock
Option Plan of the Company (the "Company Stock Option Plans"), (ii) existing as
a result of the Company's assumption of then outstanding stock options of CKS
Group, Inc. in connection with the merger with CKS Group, Inc. consummated on
December 17, 1998, and (iii) under the Stock Option Agreement with Robert Shaw
and the Company's Bonus Plan (the plans and agreements referred to in clauses
(i), (ii) and (iii), collectively, the "Company Option Plans") and rights under
the Company ESPPs, as of November 30, 1999, there are no outstanding or
authorized options, warrants, calls, rights (including preemptive rights),
commitments or any other agreements of any character which the Company or any of
its subsidiaries is a party to, or may be bound by, requiring it to issue,
transfer, grant, sell, purchase, redeem or acquire any shares of capital stock
or any of its securities or rights convertible into, exchangeable for, or
evidencing the right to subscribe for, any shares of capital stock of the
Company or any of its subsidiaries. There are not as of the date hereof and
there will not be at the Effective Time any stockholder agreements, voting
trusts or other agreements or understandings to which the Company is a party or
to which it is bound relating to the voting of any shares of the capital stock
of the Company. No existing rights with respect to the registration of Company
Shares under the Securities Act, including, but not limited to, demand rights or
piggy-back registration rights, shall apply with respect to any Parent Shares
issuable in connection with the Merger. The Company has provided to Parent a
list, as of November 30, 1999, of the outstanding options to acquire shares of
the Company's capital stock, the name of the holder of such option, the exercise
price of such option, the number of shares as to which such option will have
vested at such date and whether the exercisability of such option will be
accelerated in any way by the transactions contemplated by this
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Agreement, and indicates the extent of acceleration, if any. Since November 30,
1999 through the date hereof no options have been issued or accelerated or had
their terms modified.
(c) Fairness Opinion. The Board of Directors of the Company has received an
----------------
oral opinion from Morgan Stanley Dean Witter to be confirmed in writing and
addressed to its Board of Directors, to the effect that, as of the date hereof
and based upon and subject to the matters stated therein, the consideration to
be received by the holders of Common Shares in the Merger is fair to such
holders from a financial point of view. As of the date hereof, such opinion has
not been withdrawn, revoked or modified.
(d) Authority Relative to this Agreement. The Board of Directors of the
------------------------------------
Company has declared the Merger advisable and the Company has the requisite
corporate power and authority to approve, authorize, execute and deliver this
Agreement and to consummate the transactions contemplated hereby. This Agreement
and the consummation by the Company of the transactions contemplated hereby have
been duly and validly authorized by the Board of Directors of the Company and no
other corporate proceedings on the part of the Company are necessary to
authorize this Agreement or to consummate the transactions contemplated hereby
(other than the approval of the Merger by the stockholders of the Company in
accordance with the DGCL). This Agreement has been duly and validly executed and
delivered by the Company and, assuming this Agreement constitutes the valid and
binding agreement of Parent and Merger Sub, constitutes the valid and binding
agreement of the Company, enforceable against the Company in accordance with its
terms, subject, as to enforceability, to bankruptcy, insolvency, reorganization
and other laws of general applicability relating to or affecting creditors'
rights and to general principles of equity.
(e) Present Compliance with Obligations and Laws. Neither the Company nor
--------------------------------------------
any of its subsidiaries is: (i) in violation of its Certificate of Incorporation
or Bylaws or similar documents; (ii) in default in the performance of any
obligation, agreement or condition of any debt instrument which (with or without
the passage of time or the giving of notice, or both) affords to any Person the
right to accelerate any indebtedness or terminate any right; (iii) in default
under or breach of (with or without the passage of time or the giving of notice)
any other contract to which it is a party or by which it or its assets are
bound; or (iv) in violation of any law, regulation, administrative order or
judicial order, decree or judgment (domestic or foreign) applicable to it or its
business or assets, except where any violation, default or breach under items
(ii), (iii), or (iv) would not, individually or in the aggregate, have a
Material Adverse Effect on the Company.
(f) Consents and Approvals; No Violation. Neither the execution and
------------------------------------
delivery of this Agreement by the Company nor the consummation by the Company of
the transactions contemplated hereby will (i) conflict with or result in any
breach of any provision of its Certificate of Incorporation or Bylaws; (ii)
require any consent, approval, authorization or permit of, or registration or
filing with or notification to, any governmental or regulatory authority, except
(A) in connection with the applicable requirements, if any, of the HSR Act, (B)
pursuant to the applicable requirements of the Securities Act and the Exchange
Act, (C) the filing of the Certificate of Merger pursuant to the DGCL and
appropriate documents with the relevant authorities of other states in which the
Company is authorized to do business, (D) as may be required by any applicable
state
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<PAGE>
securities laws, (E) such filings, consents, approvals, orders, authorizations,
registrations, declarations and filings as may be required under the antitrust
laws of any foreign country or, (F) where the failure to obtain such consent,
approval, authorization or permit, or to make such filing or notification, would
not in the aggregate have a Material Adverse Effect on the Company or adversely
affect the ability of the Company to consummate the transactions contemplated
hereby; (iii) result in a violation or breach of, or constitute (with or without
notice or lapse of time or both) a default (or give rise to any right of
termination, cancellation or acceleration or lien or other charge or
encumbrance) under any of the terms, conditions or provisions of any indenture,
note, license, lease, agreement or other instrument or obligation to which the
Company or any of its subsidiaries is a party or by which any of their assets
may be bound, except for such violations, breaches and defaults (or rights of
termination, cancellation, or acceleration or lien or other charge or
encumbrance) as to which requisite waivers or consents have been obtained or
which, in the aggregate, would not have a Material Adverse Effect on the Company
or adversely affect the ability of the Company to consummate the transactions
contemplated hereby; (iv) cause the suspension or revocation of any
authorizations, consents, approvals or licenses currently in effect which would
have a Material Adverse Effect on the Company; or (v) assuming the consents,
approvals, authorizations or permits and filings or notifications referred to in
this Section 5.2(f) are duly and timely obtained or made, violate any order,
writ, injunction, decree, statute, rule or regulation applicable to the Company
or any of its subsidiaries or to any of their respective assets, except for
violations which would not in the aggregate have a Material Adverse Effect on
the Company or adversely affect the ability of the Company to consummate the
transactions contemplated hereby.
(g) Litigation. Except as disclosed in Company SEC Reports filed prior to
----------
the date hereof, there are no actions, suits, claims, investigations or
proceedings pending or, to the knowledge of the Company, threatened against the
Company or any of its subsidiaries that, alone or in the aggregate, would be
reasonably likely to result in obligations or liabilities of the Company or any
of its subsidiaries that would have a Material Adverse Effect on the Company or
a material adverse effect on the parties' ability to consummate the transactions
contemplated by this Agreement. Neither the Company nor any of its subsidiaries
is subject to any outstanding order, writ, injunction or decree which (i) has or
may have the effect of prohibiting or impairing any business practice of the
Company or any of its subsidiaries, any acquisition of property (tangible or
intangible) by the Company or any of its subsidiaries, the conduct of the
business by the Company or any of its subsidiaries, or Company's ability to
perform its obligations under this Agreement or (ii), insofar as can be
reasonably foreseen, individually or in the aggregate, would have a Material
Adverse Effect on the Company.
(h) SEC Reports; Financial Statements.
---------------------------------
(i) Since January 1, 1997, the Company has filed all forms, reports
and documents with the SEC required to be filed by it pursuant to the federal
securities laws and the SEC rules and regulations thereunder, all of which
complied in all material respects with all applicable requirements of the
Securities Act and the Exchange Act (the "Company SEC Reports"). None of the
Company SEC Reports, including, without limitation, any financial statements or
schedules included therein, at the time filed (or if amended or superseded by a
filing prior to the date of this
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<PAGE>
Agreement, then on the date of such filing) contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. None of the Company's
subsidiaries is required to file any forms, reports or other documents with the
SEC.
(ii) The consolidated balance sheets and the related statements of
income, stockholders' equity and cash flow (including the related notes thereto)
of the Company included in the Company SEC Reports (collectively, the "Company
Financial Statements") comply as to form in all material respects with
applicable accounting requirements and the published rules and regulations of
the SEC with respect thereto, have been prepared in accordance with generally
accepted accounting principles applied on a basis consistent throughout the
periods involved (except as otherwise noted therein or, in the case of unaudited
interim financial statements, as may be permitted by the SEC on Form 10-Q under
the Exchange Act), and present fairly the consolidated financial position of the
Company and its consolidated subsidiaries as of their respective dates, and the
results of its operations and its cash flow for the periods presented therein
(subject, in the case of the unaudited interim financial statements, to normal
and recurring year-end adjustments). Since January 1, 1999, there has not been
any material change, by the Company or any of its subsidiaries in accounting
principles, methods or policies for financial accounting purposes except as
required by concurrent changes in generally accepted accounting principles.
(i) No Liabilities; Absence of Certain Changes or Events. Neither the
----------------------------------------------------
Company nor any of its subsidiaries has any material indebtedness, obligations
or liabilities of any kind (whether accrued, absolute, contingent or otherwise,
and whether due or to become due or asserted or unasserted), and, to the
knowledge of the Company, there is no reasonable basis for the assertion of any
material claim or liability of any nature against the Company or any of its
subsidiaries, except for liabilities (i) which are fully reflected in, reserved
against or otherwise described in the Company Financial Statements for the
period ending September 30, 1999, (ii) which have been incurred after September
30, 1999 in the ordinary course of business, consistent with past practice, or
(iii) which are obligations to perform under executory contracts in the ordinary
course of business (none of which is a liability resulting from a breach of
contract or warranty, tort, infringement or legal action). Since September 30,
1999, the business of the Company and its subsidiaries has been carried on only
in the ordinary and usual course, and there has not been any Material Adverse
Effect on the Company and no event has occurred and no fact or set of
circumstances has arisen which has resulted in or could reasonably be expected
to result in a Material Adverse Effect on the Company. Since September 30, 1999,
to the knowledge of the Company, no material customer or supplier of the Company
or its subsidiaries has threatened, in writing, to alter materially its
relationship with the Company or its subsidiaries. Since September 30, 1999,
neither the Company nor any of its subsidiaries has agreed to a waiver or
release of any material right or claim (including without limitation to any
write off or other compromise of any material account receivable) outside of the
ordinary course of business consistent with past practice.
(j) Brokers and Finders. Except for the fees and expenses payable to Morgan
-------------------
Stanley Dean Witter, which fees and expenses are reflected in its agreement with
the Company, a
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<PAGE>
true and complete copy of which (including all amendments) has been furnished to
the Company, neither the Company nor any of its subsidiaries has employed any
investment banker, broker, finder, consultant or intermediary in connection with
the transactions contemplated by this Agreement which would be entitled to any
investment banking, brokerage, finder's or similar fee or commission in
connection with this Agreement or the transactions contemplated hereby.
(k) S-4 Registration Statement and Proxy Statement/Prospectus. None of the
---------------------------------------------------------
information supplied or to be supplied by the Company for inclusion or
incorporation by reference in the S-4 Registration Statement or the Joint Proxy
Statement will (i) in the case of the S-4 Registration Statement, at the time it
becomes effective or at the Effective Time, contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein not misleading, or (ii) in
the case of the Joint Proxy Statement, at the time of the mailing of the Joint
Proxy Statement and at the time of the Stockholder Meetings, contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they are made, not misleading. If at any time
prior to the Effective Time any event with respect to the Company, its officers
and directors or any of its subsidiaries should occur which is required to be
described in an amendment of, or a supplement to, the Joint Proxy Statement or
the S-4 Registration Statement, the Company shall promptly inform Parent such
event shall be so described, and such amendment or supplement shall be promptly
filed with the SEC and, as required by law, disseminated to the stockholders of
the Company and Parent. The S-4 Registration Statement will (with respect to the
Company) comply as to form in all material respects with the requirements of the
Securities Act and the rules and regulations promulgated thereunder. The Joint
Proxy Statement will (with respect to the Company) comply as to form in all
material respects with the requirements of the Exchange Act and the rules and
regulations promulgated thereunder.
(l) Taxes.
-----
(i) The Company and each of its subsidiaries has timely filed all
Returns required by applicable Tax law to be filed by the Company and each of
its subsidiaries, except for any such failures to file that could not reasonably
be expected to have, individually or in the aggregate, a Material Adverse Effect
on the Company. All Taxes owed by the Company or any of its subsidiaries to a
taxing authority, or for which the Company or any of its subsidiaries is liable,
whether to a taxing authority or to other Persons or entities under a
Significant Tax Agreement, as of the date hereof, have been paid and, as of the
Effective Time, will have been paid, except for any such failure to pay that
could not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect on the Company. The Company has made accruals for Taxes
on the Company Financial Statements which are adequate to cover any Tax
liability of the Company and each of its subsidiaries determined in accordance
with generally accepted accounting principles through the date of the Company
Financial Statements, except where failures to make such accruals or provisions
could not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect on the Company.
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<PAGE>
(ii) Except to the extent that any such failure to withhold could not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect on the Company, the Company and each of its subsidiaries have
withheld with respect to its employees all federal and state income taxes, FICA,
FUTA and other Taxes required to be withheld.
(iii) There is no Tax deficiency outstanding, proposed or assessed
against the Company or any of its subsidiaries, except any such deficiency that,
if paid, could not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect on the Company. Neither the Company nor any
of its subsidiaries executed or requested any waiver of any statute of
limitations on or extending the period for the assessment or collection of any
federal or material state Tax that is still in effect.
(iv) No federal or state Tax audit or other examination of the Company
or any of its subsidiaries is presently in progress, nor has the Company or any
of its subsidiaries been notified in writing of any request for such federal or
material state Tax audit or other examination, except in all cases for Tax
audits and other examinations which could not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect on the Company.
(v) Neither the Company nor any of its subsidiaries has filed any
consent agreement under Section 341(f) of the Code or agreed to have Section
341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as
defined in Section 341(f)(4) of the Code) owned by the Company.
(vi) Neither the Company nor any of its subsidiaries is a party to (A)
any agreement with a party other than the Company or any of its subsidiaries
providing for the allocation or payment of Tax liabilities or payment for Tax
benefits with respect to a consolidated, combined or unitary Return which Return
includes or included the Company or any subsidiary or (B) any Significant Tax
Agreement other than any Significant Tax Agreement described in (A).
(vii) Except for the group of which the Company and its subsidiaries
are now presently members, neither the Company nor any of its subsidiaries has
ever been a member of an affiliated group of corporations within the meaning of
Section 1504 of the Code.
(viii) Neither the Company nor any of its subsidiaries has agreed to
make nor is it required to make any adjustment under Section 481(a) of the Code
by reason of a change in accounting method or otherwise which have not yet been
taken into account.
(ix) The Company is not, and has not at any time been, a United States
Real Property Holding Corporation.
(m) Employee Benefits.
-----------------
(i) Section 5.2(m)(i) of the Company Disclosure Schedule lists each
"employee pension benefit plan" (as such term is defined in Section 3(2) of
ERISA), "employee welfare benefit plan" (as such term is defined in Section 3(1)
of ERISA), material personnel or
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<PAGE>
payroll policy (including vacation time, holiday pay, service awards, moving
expense reimbursement programs and sick leave) or material fringe benefit,
severance agreement or plan or any medical, hospital, dental, life or disability
plan, excess benefit plan, bonus, stock option, stock purchase or other
incentive plan (including any equity or equity-based plan), tuition
reimbursement, automobile use, club membership, parental or family leave, top
hat plan or deferred compensation plan, salary reduction agreement, change-of-
control agreement, employment agreement, consulting agreement, or collective
bargaining agreement, indemnification agreement, retainer agreement, or any
other material benefit plan, policy, program, arrangement, agreement or
contract, whether or not written or terminated, with respect to any employee,
former employee, director, independent contractor, or any beneficiary or
dependent thereof maintained, sponsored, adopted or administered by the Company
or any current or former Plan Affiliate or to which the Company or any current
or former Plan Affiliate has made contributions to, obligated itself or had any
liability with respect to (all such plans, policies, programs, arrangements,
agreements and contracts, are referred to in this Agreement as "Company
Scheduled Plans").
(ii) The Company has delivered or made available to Parent a complete
and accurate copy, as of the Closing, of each written Company Scheduled Plan,
together with, if applicable, a copy of audited financial statements, actuarial
reports and Form 5500 Annual Reports (including required schedules), if any, for
the three (3) most recent plan years, the most recent IRS determination letter
or IRS recognition of exemption; each other material letter, ruling or notice
issued by a governmental body with respect to each such plan, a copy of each
trust agreement, insurance contract or other funding vehicle, if any, with
respect to each such plan, the most recent PBGC Form 1 with respect to each such
plan, if any, the current summary plan description and summary of material
modifications thereto with respect to each such plan, Form 5310 and any related
filings with the PBGC and with respect to the last six (6) Plan years, for each
Plan subject to Title IV of ERISA, general notification to employees of their
rights under Code Section 4980B and form of letter(s) distributed upon the
occurrence of a qualifying event described in Code Section 4980B, in the case of
a Company Scheduled Plan that is a "group health plan" as defined in Code
Section 162(i), and a copy or description of each other general explanation or
written or oral communication which describes a material term of each Company
Scheduled Plan that has not previously been disclosed to Parent pursuant to this
Section. Section 5.2(m) of the Company Disclosure Schedule contains a
description of the material terms of any unwritten Company Scheduled Plan as
comprehended to the Closing Date. Except as set forth in Section 5.2(m) of the
Company Disclosure Schedule, there are no negotiations, demands or proposals
which are pending or threatened which concern matters now covered, or that would
be covered, by the foregoing types of unwritten Plans.
(iii) Except as could not reasonably give rise, whether individually
or in the aggregate, to a Material Adverse Effect to the Company, Parent, or
Merger Sub:
(1) Each Company Scheduled Plan (A) has been and currently
complies in form and in operation in all material respects with all applicable
requirements of ERISA and the Code, and any other legal requirements; (B) has
been and is operated and administered in material compliance with its terms
(except as otherwise required by law); (C) has been and is
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operated in compliance with applicable legal requirements in such a manner as to
qualify, where appropriate, for both Federal and state purposes, for income tax
exclusions to its participants, tax-exempt income for its funding vehicle, and
the allowance of deductions and credits with respect to contributions thereto;
and (D) where appropriate, has received a favorable determination letter or
recognition of exemption from the Internal Revenue Service.
(2) With respect to each Company Scheduled Plan, there are no
claims or other proceedings pending or, to the knowledge of the Company,
threatened with respect to the assets thereof (other than routine claims for
benefits), and there are no facts which could reasonably give rise to any
material liability, claim or other proceeding against any Company Scheduled
Plan, any fiduciary or plan administrator or other Person dealing with any
Company Scheduled Plan or the assets of any such Company Scheduled Plan.
(3) With respect to each Company Scheduled Plan, to the
knowledge of the Company, no Person: (A) has entered into any "prohibited
transaction," as such term is defined in ERISA or the Code and the regulations,
administrative rulings and case law thereunder that is not otherwise exempt
under Code Section 4975 or ERISA Section 408 (or any administrative class
exemption issued thereunder); (B) has materially breached a fiduciary obligation
or violated Sections 402, 403, 405, 503, 510 or 511 of ERISA; (C) has any
material liability for any failure to act or comply in connection with the
administration or investment of the assets of such plans; or (D) engaged in any
transaction or otherwise acted with respect to such plans in such a manner which
could subject Parent, or any fiduciary or plan administrator or any other Person
dealing with any such plan, to material liability under Section 409 or 502 of
ERISA or Sections 4972 or 4976 through 4980B of the Code.
(4) Each Company Scheduled Plan (other than any stock option
plan) may be amended, terminated, modified or otherwise revised by the Company
or Parent, on and after the Closing, without further material liability to the
Company or Parent (other than ordinary administrative expenses or routine claims
for benefit plans), including, but not limited to, any withdrawal liability
under ERISA for any multi-employer plan or any liability under any Company
Scheduled Plan subject to Title IV of ERISA.
(5) None of the Company or any current or former Company Plan
Affiliate has at any time participated in, made contributions to or had any
other liability with respect to any Company Scheduled Plan which is a "multi-
employer plan" as defined in Section 4001 of ERISA, a "multi-employer plan"
within the meaning of Section 3(37) of ERISA, a "multiple employer plan" within
the meaning of Section 413(c) of the Code, a "multiple employer welfare
arrangement" within the meaning of Section 3(40) of ERISA or a plan that is
subject to Title IV of ERISA.
(6) No Company Scheduled Plan provides, or reflects or
represents any liability to provide retiree health to any person for any reason,
except as may be required by COBRA or other applicable statute, and neither the
Company nor any Plan Affiliate has ever represented, promised or contracted
(whether in oral or written form) to any current or former employee, consultant
or director (either individually or as a group) or any other person that such
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<PAGE>
current or former employee(s) or other person would be provided with retiree
health, except to the extent required by applicable continuation coverage
statute.
(7) No Company Scheduled Plan has incurred an "accumulated
funding deficiency" as such term is defined in Section 302 of ERISA or Section
412 of the Code, whether or not waived, or has posted or is required to provide
security under Code Section 401(a)(29) or Section 307 of ERISA; no event has
occurred which has or could result in the imposition of a lien under Code
Section 412 or Section 302 of ERISA, nor has any liability to the PBGC (except
for payment of premiums) been incurred or reportable event within the meaning of
Section 4043 of ERISA occurred with respect to any such plan; and the PBGC has
not threatened or taken steps to institute the termination of any such plan;
(8) The requirements of COBRA and the Health Insurance
Portability and Accountability Act, the requirements of the Family Medical Leave
Act of 1993, as amended, the requirements of the Women's Health and Cancer
Rights Act, the requirements of the Newborns' and Mothers' Health Protection Act
of 1996, or any amendment to each such act, or any similar provisions of state
law applicable to its employees, have, in all material respects, been satisfied
with respect to each Company Scheduled Plan.
(9) All contributions, payments, premiums, expenses,
reimbursements or accruals for all periods ending prior to or as of the Closing
for each Company Scheduled Plan (including periods from the first day of the
then current plan year to the Closing) shall have been made or accrued on the
Company financial statements (in accordance with generally applied accounting
principles, including FAS 87, 88, 106 and 112) and each such plan otherwise does
not have nor could have any unfunded liability (including benefit liabilities as
defined in Section 4001(a)(16) of ERISA) which is not reflected on the Company
financial statements. Any contribution made or accrued with respect to any
Company Scheduled Plan has been or, to the knowledge of the Company, will be
intended to be, fully deductible by the Company.
(10) Neither the Company nor a Plan Affiliate has any material
liability (A) for the termination of any single employer plan under Section 4062
of ERISA or any multiple employer plan under Section 4063 of ERISA, (B) for any
lien imposed under Section 302(f) of ERISA or Section 412(n) of the Code, (C)
for any interest payments required under Section 302(e) of ERISA or Section
412(m) of the Code, (D) for any excise tax imposed by Code Sections 4971, 4972,
4977, or 4979, or (E) for any minimum funding contributions under Section
302(c)(11) of ERISA or Code Section 412(c)(11).
(11) All the Company Scheduled Plans to the extent applicable,
are in compliance with Section 1862(b)(1)(A)(i) of the Social Security Act and
neither the Company nor any Plan Affiliate has any liability for any excise tax
imposed by Code Section 5000.
(12) With respect to any Company Scheduled Plan which is a
welfare plan as defined in Section 3(1) of ERISA; (A) each such welfare plan
which is intended to meet the requirements for tax-favored treatment under
Subchapter B of Chapter 1 of the Code materially meets such requirements; and
(B) there is no disqualified benefit (as such term is defined
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<PAGE>
in Code Section 4976(b)) which would subject the Company or any Plan Affiliate
to a tax under Code Section 4976(a).
(13) Each Company Scheduled Plan that has been adopted or
maintained by the Company or any Plan Affiliate, whether informally or formally,
or with respect to which the Company or any Plan Affiliate will or may have any
liability, for the benefit of the Company Employees who perform services outside
the United States (the "Company International Employee Plans") has been
established, maintained and administered in material compliance with its terms
and conditions and with the requirements prescribed by any and all statutory or
regulatory laws that are applicable to such Company International Employee Plan.
Furthermore, no Company International Employee Plan has unfunded liabilities,
that, as of the Effective Time, will not be offset by insurance or fully
accrued. Except as required by law, no condition exists that would prevent the
Company or any Plan Affiliate from terminating or amending any Company
International Employee Plan at any time for any reason without material
liability to the Company or any Plan Affiliate (other than ordinary
administration expenses or routine claims for benefits). To the extent any such
Company International Employee Plan has not been disclosed or provided prior to
the date of this Agreement, the Company agrees to use its best efforts to
disclose and provide such plan prior to the Effective Time.
(iv) Other than by reason of actions taken by Parent following the
Closing, the consummation of the transactions contemplated by this Agreement
will not (A) entitle any current or former employee of the Company to severance
pay, unemployment compensation or any other payment, (B) accelerate the time of
payment or vesting of any payment (other than for a terminated or frozen tax-
qualified plan, pursuant to a requirement herein to freeze or terminate such
plan), cause the forgiveness of any indebtedness, or increase the amount of any
compensation due to any such employee or former employee, (C) result in any
prohibited transaction described in Section 406 of ERISA or Section 4975 of the
Code for which an exemption is not available, or (D) give rise to the payment of
any amount that would not be deductible pursuant to the terms of Section 280G of
the Code.
(n) Company Intangible Property.
---------------------------
(i) The Company and its subsidiaries own, or are licensed or
otherwise possess legally enforceable rights to use, all patents, trademarks,
trade names, service marks, copyrights and mask works, all applications for and
registrations of such patents, trademarks, trade names, service marks,
copyrights and mask works, and all processes, formulae, methods, schematics,
technology, know-how, computer software programs or applications and tangible or
intangible proprietary information or material that are necessary to conduct the
business of the Company and its subsidiaries as currently conducted or planned
to be conducted (the "Company Intellectual Property Rights"). Section 5.2(n) of
the Company Disclosure Schedule sets forth a list of the material software
licenses to which the Company or its subsidiaries is a party.
(ii) Neither the Company nor any of its subsidiaries is or will be as
a result of the execution and delivery of this Agreement or the performance of
its obligations under this Agreement, in breach in any material respect of any
material license, sublicense or other agreement
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<PAGE>
relating to the Company Intellectual Property Rights or any license, sublicense
or other agreement pursuant to which the Company or any of its subsidiaries is
authorized to use any third party patents, trademarks or copyrights, including
software, which are used in the manufacture of, incorporated in, or form a part
of any product of the Company or any of its subsidiaries.
(iii) To the Company's knowledge, all patents, registered trademarks,
service marks and copyrights held by the Company or any of its subsidiaries
which are material to its business are valid and enforceable. Neither the
Company nor any of its subsidiaries has been sued in any suit, action or
proceeding which involves a claim of infringement of any patent, trademark,
service mark or copyright or the violation of any trade secret or other
proprietary rights of any third party, which infringement would be reasonably
likely to have a Material Adverse Effect on the Company.
(iv) The Company and its subsidiaries have taken reasonable security
measures to safeguard and maintain their property rights in all the Company
Intellectual Property Rights owned by the Company or its subsidiaries. The
Company and its subsidiaries maintain and in all material respects abide by a
policy that officers, employees and consultants of the Company or any of its
subsidiaries, except for clerical and other lower level support personnel (e.g.
mail room, messengers, etc.), execute an agreement, in a form previously
provided to Parent, regarding (i) the protection of proprietary information,
(ii) the assignment to the Company (or an applicable subsidiary) of all the
Company Intellectual Property Rights arising from services performed for the
Company or any of its subsidiaries by such Persons, (iii) the ownership by the
Company or one of its subsidiaries of all the Company Intellectual Property
Rights arising from the services performed for the Company or one of its
subsidiaries by such Persons and (iv) limitations on the individual's ability to
solicit or hire Parent's or its subsidiaries' employees or consultants.
(o) Agreements, Contracts and Commitments; Material Contracts. Except as
---------------------------------------------------------
set forth in the Section 5.2(o) of the Company Disclosure Schedule, as of the
date hereof, neither the Company nor any of its subsidiaries is a party to or is
bound by:
(i) any contract relating to the borrowing of money, the guaranty of
another Person's borrowing of money, or the creation of an encumbrance or lien
on the assets of the Company or any of its subsidiaries and with outstanding
obligations in excess of $1,000,000;
(ii) any employment or consulting agreement, contract or commitment
with any officer or director level employee or member of the Company's Board of
Directors or any other employee who is one of the fifty (50) most highly
compensated employees, including base salary and bonuses (the "Company Key
Employees"), other than those that are terminable by the Company or any of its
subsidiaries on no more than thirty (30) days notice without liability or
financial obligation or benefits generally available to employees of the
Company, except to the extent general principles of wrongful termination law may
limit the Company's or any of its subsidiaries' ability to terminate employees
at will;
(iii) any agreement or plan, including, without limitation, any stock
option plan, stock appreciation right plan or stock purchase plan, any of the
benefits of which will be
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increased, or the vesting of benefits of which will be accelerated, by the
occurrence of any of the transactions contemplated by this Agreement or the
value of any of the benefits of which will be calculated on the basis of any of
the transactions contemplated by this Agreement;
(iv) any agreement of indemnification or guaranty by the Company or
any of its subsidiaries not entered into in the ordinary course of business
other than indemnification agreements between the Company or any of its
subsidiaries and any of its officers or directors in standard forms as filed by
the Company with the SEC;
(v) any agreement, contract or commitment containing any covenant
limiting the freedom of the Company or any of its subsidiaries to engage in any
line of business or conduct business in any geographical area, compete with any
person or granting any exclusive distribution rights;
(vi) any joint venture, partnership, and other Contract (however
named) involving a sharing of profits or losses by the Company or any subsidiary
with any other Person;
(vii) any contract for capital expenditures in excess of $1,000,000;
(viii) any agreement, contract or commitment currently in force
relating to the disposition or acquisition of assets not in the ordinary course
of business;
(ix) any agreement, contract or commitment for the purchase of any
ownership interest in any corporation, partnership, joint venture or other
business enterprise for consideration in excess of $2,500,000, in any case,
which includes all escrow and earn-out agreements with outstanding obligations;
or
(x) any material joint marketing, distribution or development
agreement or other material contract of the Company or any of its subsidiaries
not previously filed with the SEC and not otherwise listed in any other section
of the Company Disclosure Schedule.
A true and complete copy (including all amendments) of each Company
Contract (or if standard forms are used, copies of the applicable forms with an
indication of any material differences from the actual listed Company Contract),
or a summary of each oral contract, has been made available to Parent, excluding
those Company Contracts referenced in clauses (vii). Each contract set forth in
Section 5.2(o)(i)-(x) of the Company Disclosure Schedule (a "Company Contract")
and each Company Material Contract (as defined below) is in full force and
effect, and is a legal, valid and binding obligation of the Company or a
subsidiary of the Company and, to the knowledge of the Company, each of the
other parties thereto, enforceable in accordance with its terms, except (a) that
the enforcement thereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and (ii) general principles of equity
(regardless of whether enforceability is considered in a proceeding in equity or
at law) and (b) as would not, individually or in the aggregate, be reasonably
expected to result in a Material Adverse Effect with respect to the Company on
the Company. No condition exists or event has occurred which (whether with or
without notice or lapse
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of time or both, or the happening or occurrence of any other event) would
constitute a default by the Company or a subsidiary of the Company or, to the
knowledge of the Company, any other party thereto under, or result in a right in
termination of, any Company Contract or Company Material Contract, except as
would not, individually or in the aggregate, be reasonably expected to result in
a Material Adverse Effect on the Company. The term "Company Material Contract"
shall mean any contract that is material to the Company and its subsidiaries,
taken as a whole.
(p) Unlawful Payments and Contributions. To the knowledge of the Company,
-----------------------------------
neither the Company, any subsidiary of the Company nor any of their respective
directors, officers, employees or agents has, with respect to the businesses of
the Company or its subsidiaries, (i) used any funds for any unlawful
contribution, endorsement, gift, entertainment or other unlawful expense
relating to political activity; (ii) made any direct or indirect unlawful
payment to any foreign or domestic government official or employee; (iii)
violated or is in violation of any provision of the Foreign Corrupt Practices
Act of 1977, as amended; or (iv) made any bribe, rebate, payoff, influence
payment, kickback or other unlawful payment to any Person or entity.
(q) Listings. The Company's securities are not listed, or quoted, for
--------
trading on any U.S. domestic or foreign securities exchange, other than the NNM.
(r) Environmental Matters. Except as disclosed in the Company SEC Reports
---------------------
filed prior to the date hereof, (i) the Company and its subsidiaries and the
operations, assets and properties thereof are in material compliance with all
Environmental Laws; (ii) there are no judicial or administrative actions, suits,
proceedings or investigations pending or, to the knowledge of the Company,
threatened against the Company or any subsidiary of the Company alleging the
violation of any Environmental Law and neither the Company nor any subsidiary of
the Company has received notice from any governmental body or Person alleging
any violation of or liability under any Environmental Laws, in either case which
could reasonably be expected to result in material Environmental Costs and
Liabilities; (iii) to the knowledge of the Company, there are no facts,
circumstances or conditions relating to, arising from, associated with or
attributable to the Company or its subsidiaries or any real property currently
or previously owned, operated or leased by the Company or its subsidiaries that
could reasonably be expected to result in material Environmental Costs and
Liabilities; and (iv) to the knowledge of the Company, neither the Company nor
any of its subsidiaries has ever generated, transported, treated, stored,
handled or disposed of any Hazardous Material at any site, location or facility
in a manner that could create any material Environmental Costs and Liabilities
under any Environmental Law, and no such Hazardous Material has been or is
currently present on, in, at or under any real property owned or used by the
Company or any of its subsidiaries in a manner that could create any
Environmental Costs and Liabilities (including without limitation, containment
by means of any underground or aboveground storage tank).
(s) Title to Properties; Liens; Condition of Properties.
---------------------------------------------------
(i) The Company and its subsidiaries have good and marketable title
to, or a valid leasehold interest in, the real and personal property, located on
their premises or shown on their most recent balance sheet or acquired after the
date thereof. None of the property owned or used by the Company or any of its
subsidiaries is subject to any mortgage, pledge, deed of trust, lien
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(other than for taxes not yet due and payable), conditional sale agreement,
security title, encumbrance, or other adverse claim or interest of any kind.
Since September 30, 1999, there has not been any sale, lease, or any other
disposition or distribution by the Company or any of its subsidiaries of any of
its assets or properties material to the Company and its subsidiaries, taken as
a whole, except transactions in the ordinary and regular course of business.
(ii) The Company has delivered to Parent a schedule of all material
leases, subleases, rental agreements, contracts of sale, tenancies or licenses
related to any of the real property used by the Company or any of its
subsidiaries in their respective businesses. All such leases are valid, binding
and enforceable in accordance with their terms against the parties thereto, and
each such lease is subsisting and no default exists under any thereof. Neither
the Company nor any of its subsidiaries has received notice that any party to
any such lease intends to cancel, terminate or refuse to renew the same or to
exercise or decline to exercise any option or any right thereunder.
(t) Labor and Employee Relations.
----------------------------
(i) Neither the Company nor any of its subsidiaries is a party to any
employment, consulting, non-competition, severance, golden parachute,
indemnification agreement or any other material employment or consulting
agreement providing for payments or benefits or the acceleration of payments or
benefits upon the change of control of the Company (including, without
limitation, any contract to which the Company is a party involving employees of
the Company).
(ii) Except as required by applicable law in non-U.S. jurisdictions,
(A) none of the employees of the Company or any of its subsidiaries is
represented in his or her capacity as an employee of such company by any labor
organization; (B) neither the Company nor any of its subsidiaries has recognized
any labor organization nor has any labor organization been elected as the
collective bargaining agent of any of their employees, nor has the Company or
any of its subsidiaries signed any collective bargaining agreement or union
contract recognizing any labor organization as the bargaining agent of any of
their employees; and (C) to the knowledge of the Company, there is no active or
current union organization activity involving the employees of the Company or
any of its subsidiaries, nor has there ever been union representation involving
employees of the Company or any of its subsidiaries.
(iii) Except for complaints which, in the aggregate, do not represent
claims which could reasonably involve liabilities in excess of $2,000,000, there
are no complaints against the Company or any of its subsidiaries pending or, to
the knowledge of the Company, overtly threatened before the National Labor
Relations Board or any similar foreign, state or local labor agencies, or before
the Equal Employment Opportunity Commission or any similar foreign, state or
local agency, or before any other governmental agency or entity by or on behalf
of any employee or former employee of the Company or any of its subsidiaries.
(iv) The Company has provided to Parent a description of all written
employment policies under which the Company and each subsidiary is operating.
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<PAGE>
(v) The Company and each of its subsidiaries is in compliance with all
Federal, foreign (as applicable), and state laws regarding employment practices,
including laws relating to workers' safety, sexual harassment or discrimination,
except where the failure to so be in compliance, individually or in the
aggregate, would not have a Material Adverse Effect on the Company.
(vi) To the knowledge of the Company, as of the date hereof, no
executive, key employee or group of employees has any plans to terminate his or
her employment with the Company or any of its subsidiaries.
(vii) Section 5.2(t) of the Company Disclosure Schedule lists the
following information with respect to the Company Key Employees.
(1) position; and
(2) any non-compete or non solicitation agreement they are
bound by.
(u) Permits. The Company and each of its subsidiaries hold all licenses,
-------
permits, registrations, orders, authorizations, approvals and franchises which
are required to permit it to conduct its businesses as presently conducted,
except where the failure to hold such licenses, permits, registrations, orders,
authorizations, approvals or franchises would not, individually or in the
aggregate, have a Material Adverse Effect on the Company. All such material
licenses, permits, registrations, orders, authorizations, approvals and
franchises are now, and will be after the Closing, valid and in full force and
effect, and Parent shall have full benefit of the same, except where the failure
to be valid and in full force and effect or to have the benefit of any such
license, permit, registration, order, authorization, approval or franchise would
not, individually or in the aggregate, have a Material Adverse Effect on the
Company. Neither the Company nor any of its subsidiaries has received any
notification of any asserted present failure (or past and unremedied failure) by
it to have obtained any such license, permit, registration, order,
authorization, approval or franchise, except where such failures would not, in
the aggregate, have a Material Adverse Effect on the Company.
(v) Warranty or Other Claims. The Company has provided to the Company a
------------------------
copy of its standard form agreement for services. It is the Company's practice
and policy to adhere to the form terms, except to the extent not commercially
practicable.
(w) Transactions with Affiliates. Except as set forth in the Company SEC
----------------------------
Reports filed prior to the date of this Agreement, since the date of Company's
last proxy statement to its stockholders, no event has occurred that would be
required to be reported by Company as a Certain Relationship or Related
Transaction, pursuant to Item 404 of Regulation S-K promulgated by the SEC.
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<PAGE>
(x) Computer Software. The occurrence in or use by any material Software
-----------------
used by the Company and its subsidiaries of dates on or after January 1, 2000
will not result in any Malfunction.
(y) State Takeover Laws. The Board of Directors of the Company has taken
-------------------
all necessary action so that the restrictions contained in Section 203 of the
DGCL applicable to a "business combination" (as defined in Section 203) will not
apply to the execution, delivery or performance of this Agreement or the
Stockholder Agreements or the consummation of the Merger or the other
transactions contemplated by this Agreement or the Stockholder Agreements. No
other state takeover statute or similar statute or regulation is applicable to
this Agreement or the Stockholder Agreements.
ARTICLE VI
Additional Covenants and Agreements
6.1 Conduct of Business
-------------------
(a) Parent and the Company each covenant and agree that, during the period
from the date of this Agreement to the Effective Time (unless the Parties shall
otherwise agree in writing and except as otherwise contemplated by this
Agreement), Parent and the Company each will, and will cause each of their
subsidiaries to, conduct their operations according to their ordinary and usual
course of business consistent with past practice and, to the extent consistent
therewith, with no less diligence and effort than would be applied in the
absence of this Agreement, seek to preserve intact their current business
organizations, use their reasonable efforts to keep available the service of its
current officers and employees and preserve their relationships with customers,
suppliers and others having business dealings with them to the end that goodwill
and ongoing businesses shall be unimpaired at the Effective Time.
(b) Without limiting the generality of the foregoing, and except as
otherwise permitted in this Agreement, prior to the Effective Time, Parent and
the Company shall not, and each shall cause each of their subsidiaries not to,
without the prior written consent of the other Parties:
(i) except as set forth in Section 6.1(b) of the Company Disclosure
Schedule, accelerate, amend or change the period of exercisability of any
outstanding options or restricted stock, reprice options granted under the
Company Option Plans or Parent Option Plans or authorize cash payments in
exchange for any options granted under any of such plans, as the case may be, or
authorize cash payments in exchange for any options granted under any of such
plans, except to the extent required under any Company Option Plan or Parent
Option Plan, as the case may be, or any individual agreement as in effect on the
date hereof (or, if entered into after the date hereof in compliance with this
Section 6.1(b), such agreement which shall be in the standard form thereof as in
effect on the date hereof);
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(ii) except (v) for issuances of shares of common stock of Merger Sub
to Parent, (w) as set forth in Section 6.1(b) of the Parent Disclosure Schedule
or the Company Disclosure Schedule, as the case may be, (x) for shares to be
issued upon exercise of outstanding options or warrants or options and warrants
granted in compliance with clauses (w) or (y) hereof, and (y) for grants of
stock options in the ordinary course consistent with past practice pursuant to
the Parent Option Plans or Company Option Plans, as the case may be, in
connection with new hires or in accordance with regularly scheduled periodic
grants, not to exceed 4,000,000 shares, in all cases, for each of Parent and the
Company, respectively, issue, deliver, sell, dispose of, pledge or otherwise
encumber, or authorize or propose the issuance, sale, disposition or pledge or
other encumbrance of (A) any additional shares of capital stock of any class, or
any securities or rights convertible into, exchangeable for, or evidencing the
right to subscribe for any shares of capital stock, or any rights, warrants,
options, calls, commitments or any other agreements of any character to purchase
or acquire any shares of capital stock or any securities or rights convertible
into, exchangeable for, or evidencing the right to subscribe for, any shares of
capital stock, or (B) any other securities in respect of, in lieu of, or in
substitution for, shares outstanding on the date hereof;
(iii) redeem, purchase or otherwise acquire, or offer to redeem,
purchase or otherwise acquire, any of its outstanding securities (including the
Parent Shares or the Company Shares, as the case may be), other than the
repurchase of securities from service providers upon their termination from
service with Parent or the Company, as the case may be, at the original purchase
price;
(iv) split, combine, subdivide or reclassify any shares of its capital
stock or declare, set aside for payment or pay any dividend, or make any other
actual, constructive or deemed distribution in respect of any shares of its
capital stock or otherwise make any payments to stockholders in their capacity
as such;
(v) adopt a plan of complete or partial liquidation, dissolution,
merger, consolidation, restructuring, recapitalization or other reorganization
(other than the Merger as provided for herein);
(vi) adopt any amendments to its Certificate or Articles of
Incorporation, as the case may be, or By-Laws or alter through merger,
liquidation, reorganization, restructuring or in any other fashion the corporate
structure or ownership of any of its subsidiaries, except to increase the
authorized capital stock or reduce the par value of the capital stock of Merger
Sub;
(vii) other than as set forth in Section 6.1(b) of the Parent
Disclosure Schedule or the Company Disclosure Schedule, as applicable, make any
acquisition, by means of merger, consolidation or otherwise, or dispositions, of
assets or securities (except for acquisitions or dispositions in the ordinary
course of business none of which are acquisitions of businesses);
(viii) other than in the ordinary course of business consistent with
past practice, except as set forth in Section 6.1(b) of the Parent Disclosure
Schedule or the Company Disclosure Schedule, incur any indebtedness for borrowed
money or guarantee any such
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<PAGE>
indebtedness or make any loans, advances or capital contributions to, or
investments in, any other Person;
(ix) make or revoke any material Tax election, settle or compromise
any material federal, state, local or foreign Tax liability or change (or make a
request to any taxing authority to change) any material aspect of its method of
accounting for Tax purposes (except for Tax elections which are consistent with
prior such elections (in past years);
(x) incur any material liability for Taxes other than in the ordinary
course of business;
(xi) incur or commit to incur any capital expenditures in excess of
current budgets for capital expenditures which were provided by the Company or
Parent to the other party prior to the date hereof;
(xii) enter into any contract material to Parent or the Company as the
case may be, and its subsidiaries, taken as a whole;
(xiii) enter into any strategic alliance or joint marketing
arrangement or agreement other than routine alliances, arrangements or
agreements;
(xiv) pay, discharge, settle or satisfy any material claims,
liabilities or obligations (absolute, accrued, asserted or unasserted,
contingent or otherwise) or litigation (whether or not commenced prior to the
date of this Agreement), other than the payment, discharge, settlement or
satisfaction, in the ordinary course of business consistent with past practice
or in accordance with its terms, of any liability recognized or disclosed in the
most recent Parent Financial Statements (September 30, 1999) or Company
Financial Statements (September 30, 1999) (or the notes thereto), as applicable,
or incurred since the date of such financial statements, or (B) voluntarily
waive the benefits of, or agree to modify in any manner, terminate or release
any Person from any non-competition, confidentiality, standstill or similar
agreement to which Parent or any of its subsidiaries or the Company or any of
its subsidiaries, as applicable, is a party or of which any of them is a
beneficiary;
(xv) except as required by this Agreement or as required to be held in
accordance with a valid stockholder request, call or hold any meeting of
stockholders of the Company or Parent other than an annual meeting of
shareholders which considers routine matters in the ordinary course of business
consistent with past practices;
(xvi) transfer or license to any Person or entity or otherwise extend,
amend or modify any material rights to the Parent Intellectual Property Rights
or the Company Intellectual Property Rights, as applicable, other than in the
ordinary course of business consistent with past practices or on a non-exclusive
basis not materially different from past practices;
(xvii) make any change to accounting policies or procedures, except as
may be required by generally accepted accounting principles or applicable law;
or
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<PAGE>
(xviii) authorize, recommend, propose or announce an intention to do
any of the foregoing, or enter into any contract, agreement, commitment or
arrangement to do any of the foregoing.
(c) Between the date hereof and the Effective Time, except as contemplated
herein, Parent, the Company and their subsidiaries shall not (without the prior
written consent of the Parties hereto) (A) except for normal increases in the
ordinary course of business consistent with past practice that, in the
aggregate, do not materially increase benefits or compensation expenses of
Parent and its subsidiaries, or the Company and its subsidiaries, or as
contemplated by the terms of any contract the existence of which does not
constitute a violation of this Agreement, increase the compensation, bonus or
other benefits of any director, officer or other employee; (B) pay or agree to
pay any pension, retirement allowance or other employee benefit not required or
contemplated by any of the existing benefit, severance, pension or employment
plans, agreements or arrangements as in effect on the date hereof to any such
director, officer or employee, whether past or present; (C) enter into any new
or amend any existing employment or severance agreement with any such director,
officer or employee; (D) except as may be required to comply with applicable
law, become obligated under any new pension plan, welfare plan, multi-employer
plan, employee benefit plan, severance plan, benefit arrangement, or similar
plan or arrangement, which was not in existence on the date hereof, or amend,
terminate or change any funding policies or assumptions for any such plan or
arrangement in existence on the date hereof if such amendment, termination or
change would have the effect of enhancing any benefits thereunder or increasing
the cost thereof to Parent or the Company or (E) increase the total head count
of Parent and its subsidiaries, or the Company and its subsidiaries, in an
amount greater than an increase in the ordinary course of business consistent
with past practice.
6.2 No Solicitation by the Company.
------------------------------
(a) From and after the date of this Agreement until the Effective Time or
the earlier termination of this Agreement in accordance with its terms, the
Company and its subsidiaries will not, and will not permit their respective
directors, officers, investment bankers, affiliates, representatives and agents
to, (i) solicit, initiate, or encourage (including by way of furnishing
information), or take any other action to facilitate, any inquiries or proposals
that constitute, or could reasonably be expected to lead to, any Company
Acquisition Proposal (as defined below), or (ii) engage in, or enter into, any
negotiations or discussions concerning any Company Acquisition Proposal.
Notwithstanding the foregoing, in the event that, notwithstanding compliance
with the preceding sentence, the Company receives a Company Superior Proposal
(as defined below) the Company may, to the extent that the Board of Directors of
the Company determines in good faith (in consultation with outside counsel) that
such action would, in the absence of the foregoing proscriptions, be required by
its fiduciary duties, participate in discussions regarding any Company Superior
Proposal in order to be informed with respect thereto in order to make any
determination permitted pursuant to Section 6.2(b)(i). In such event, the
Company shall, (i) no less than twenty four (24) hours prior to participating in
any such discussions, inform Parent of the material terms and conditions of such
Company Superior Proposal, including the identity of the Person making such
Company Superior Proposal and (ii) promptly keep Parent informed of the status
including any
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<PAGE>
material change to the terms of any such Company Superior Proposal. As used
herein, the term "Company Acquisition Proposal" shall mean any bona fide
inquiry, proposal or offer relating to any (i) merger, consolidation, business
combination, or similar transaction involving the Company or any subsidiary of
the Company, (ii) sale, lease or other disposition, directly or indirectly, by
merger, consolidation, share exchange or otherwise, of any assets of the Company
or any subsidiary of the Company in one or more transactions, (iii) issuance,
sale, or other disposition of (including by way of merger, consolidation, share
exchange or any similar transaction) securities (or options, rights or warrants
to purchase such securities, or securities convertible into such securities) of
the Company or any subsidiary of the Company, (iv) liquidation, dissolution,
recapitalization or other similar type of transaction with respect to the
Company or any subsidiary of the Company, (v) tender offer or exchange offer for
Company securities; in the case of (i), (ii), (iii), (iv) or (v) above, which
transaction would result in a third party (or its shareholders) acquiring more
than thirty-five percent (35%) of the voting power of the Company or the assets
representing more than thirty-five percent (35%) of the net income, net revenue
or assets of the Company on a consolidated basis, (vi) transaction which is
similar in form, substance or purpose to any of the foregoing transactions or
(vii) public announcement of an agreement, proposal, plan or intention to do any
of the foregoing, provided, however, that the term "Company Acquisition
-------- -------
Proposal" shall not include the Merger and the transactions contemplated
thereby. For purposes of this Agreement, "Company Superior Proposal" means any
offer not solicited by the Company, or by other persons in violation of the
first sentence of this Section 6.2(a), and made by a third party to consummate a
tender offer, exchange offer, merger, consolidation or similar transaction which
would result in such third party (or its shareholders) owning, directly or
indirectly, more than fifty percent (50%) of the Company Shares then outstanding
(or of the surviving entity in a merger) or all or substantially all of the
assets of Company and its subsidiaries, taken together, and otherwise on terms
which the Board of Directors of the Company determines in good faith (based on
its consultation with a financial advisor of nationally recognized reputation
and other such matters that it deems relevant) would, if consummated, result in
a transaction more favorable to the Company's stockholders from a financial
point of view than the Merger and, in the reasonable good faith judgment of the
Board of Directors of the Company after consultation with its financial advisor
the persons or entity making such Company Superior Proposal has the financial
means to conclude such transaction. The Company will immediately cease any and
all existing activities, discussions or negotiations with any parties conducted
heretofore with respect to any of the foregoing.
(b) Neither the Board of Directors of the Company nor any committee thereof
shall (i) except as required by their fiduciary duties as determined in good
faith in consultation with outside counsel, withdraw or modify, or propose to
withdraw or modify, in a manner adverse to Parent or Merger Sub, the approval or
recommendation by the Board of Directors of the Company or such committee of
this Agreement or the Merger, (ii) approve, recommend, or otherwise support or
endorse any Company Acquisition Proposal, or (iii) cause the Company to enter
into any letter of intent, agreement in principle, acquisition agreement or
similar agreement (each a "Company Acquisition Agreement") with respect to any
Company Acquisition Proposal. Nothing contained in this Section 6.2 shall
prohibit the Company from taking and disclosing to its stockholders a position
contemplated by Rule 14d-9 or 14e-2 promulgated under the Exchange Act or from
making any disclosure to the Company's stockholders if, in the good faith
judgment of the Board of Directors of
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the Company, in consultation with outside counsel, such disclosure is necessary
for the Board of Directors to comply with its fiduciary duties under applicable
law; provided, however, that, subject to Section 6.2(b)(i), neither the
-------- -------
Company nor its Board of Directors nor any committee thereof shall withdraw or
modify, or propose publicly to withdraw or modify, its position with respect to
this Agreement or the Merger or approve or recommend or propose publicly to
approve or recommend, a Company Acquisition Proposal.
(c) In addition to the obligations of the Company set forth in paragraphs
(a) and (b) of this Section 6.2, the Company will promptly (and in any event
within twenty-four (24) hours) advise Parent, orally and in writing, if any
Company Acquisition Proposal is made or proposed to be made or any information
or access to properties, books or records of the Company is requested in
connection with a Company Acquisition Proposal, the principal terms and
conditions of any such Company Acquisition Proposal or potential Company
Acquisition Proposal or inquiry (and will disclose any written materials
received by the Company in connection with such Company Acquisition Proposal,
potential Company Acquisition Proposal or inquiry) and the identity of the party
making such Company Acquisition Proposal, potential Company Acquisition Proposal
or inquiry. The Company will keep Parent advised of the status and details
(including amendments and proposed amendments) of any such request or Company
Acquisition Proposal.
6.3 No Solicitation by Parent.
-------------------------
(a) From and after the date of this Agreement until the Effective Time or
the earlier termination of this Agreement in accordance with its terms, Parent
and its subsidiaries will not, and will not permit their respective directors,
officers, investment bankers, affiliates, representatives and agents to, (i)
solicit, initiate, or encourage (including by way of furnishing information), or
take any other action to facilitate, any inquiries or proposals that constitute,
or could reasonably be expected to lead to, any Parent Acquisition Proposal (as
defined below), or (ii) engage in, or enter into, any negotiations or
discussions concerning any Parent Acquisition Proposal. Notwithstanding the
foregoing, in the event that, notwithstanding compliance with the preceding
sentence, Parent receives a Parent Superior Proposal (as defined below) Parent
may, to the extent that the Board of Directors of Parent determines in good
faith (in consultation with outside counsel) that such action would, in the
absence of the foregoing proscriptions, be required by its fiduciary duties,
participate in discussions regarding any Parent Superior Proposal in order to be
informed with respect thereto in order to make any determination permitted
pursuant to Section 6.3(b)(i). In such event, Parent shall, (i) no less than
twenty four (24) hours prior to participating in any such discussions, inform
the Company of the material terms and conditions of such Parent Superior
Proposal, including the identity of the Person making such Parent Superior
Proposal and (ii) promptly keep the Company informed of the status including any
material change to the terms of any such Parent Superior Proposal. As used
herein, the term "Parent Acquisition Proposal" shall mean any bona fide inquiry,
proposal or offer relating to any (i) merger, consolidation, business
combination, or similar transaction involving Parent or any subsidiary of
Parent, (ii) sale, lease or other disposition, directly or indirectly, by
merger, consolidation, share exchange or otherwise, of any assets of Parent or
any subsidiary of Parent in one or more transactions, (iii) issuance, sale, or
other disposition of (including by way of merger, consolidation, share exchange
or any similar
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transaction) securities (or options, rights or warrants to purchase such
securities, or securities convertible into such securities) of Parent or any
subsidiary of Parent, (iv) liquidation, dissolution, recapitalization or other
similar type of transaction with respect to Parent or any subsidiary of Parent,
(v) tender offer or exchange offer for Parent securities; in the case of (i),
(ii), (iii), (iv) or (v) above, which transaction would result in a third party
(or its shareholders) acquiring more than thirty-five percent (35%) of the
voting power of Parent or the assets representing more than thirty-five percent
(35%) of the net income, net revenue or assets of Parent on a consolidated
basis, (vi) transaction which is similar in form, substance or purpose to any of
the foregoing transactions or (vii) public announcement of an agreement,
proposal, plan or intention to do any of the foregoing, provided, however, that
-------- -------
the term "Parent Acquisition Proposal" shall not include the Merger and the
transactions contemplated thereby. For purposes of this Agreement, "Parent
Superior Proposal" means any offer not solicited by Parent, or by other persons
in violation of the first sentence of this Section 6.3(a), and made by a third
party to consummate a tender offer, exchange offer, merger, consolidation or
similar transaction which would result in such third party (or its shareholders)
owning, directly or indirectly, more than fifty percent (50%) of Parent Shares
then outstanding (or of the surviving entity in a merger) or all or
substantially all of the assets of Parent and its subsidiaries, taken together,
and otherwise on terms which the Board of Directors of Parent determines in good
faith (based on its consultation with a financial advisor of nationally
recognized reputation and other such matters that it deems relevant) would, if
consummated, result in a transaction more favorable to Parent's stockholders
from a financial point of view than the Merger and, in the reasonable good faith
judgment of the Board of Directors of Parent after consultation with its
financial advisor the persons or entity making such Parent Superior Proposal has
the financial means to conclude such transaction. Parent will immediately cease
any and all existing activities, discussions or negotiations with any parties
conducted heretofore with respect to any of the foregoing.
(b) Neither the Board of Directors of Parent nor any committee thereof
shall (i) except as required by their fiduciary duties as determined in good
faith in consultation with outside counsel, withdraw or modify, or propose to
withdraw or modify, in a manner adverse to the Company, the approval or
recommendation by the Board of Directors of Parent or such committee of the
amendment to Parent's Certificate of Incorporation and the approval of the
issuance of Parent Shares, (ii) approve, recommend, or otherwise support or
endorse any Parent Acquisition Proposal, or (iii) cause Parent to enter into any
letter of intent, agreement in principle, acquisition agreement or similar
agreement (each a "Parent Acquisition Agreement") with respect to any Parent
Acquisition Proposal. Nothing contained in this Section 6.3 shall prohibit
Parent from taking and disclosing to its stockholders a position contemplated by
Rule 14d-9 or 14e-2 promulgated under the Exchange Act or from making any
disclosure to Parent's stockholders if, in the good faith judgment of the Board
of Directors of Parent, in consultation with outside counsel, such disclosure is
necessary for the Board of Directors to comply with its fiduciary duties under
applicable law; provided, however, that, subject to Section 6.3(b)(i), neither
-------- -------
Parent nor its Board of Directors nor any committee thereof shall withdraw or
modify, or propose publicly to withdraw or modify, its position with respect to
this Agreement or the Merger or approve or recommend or propose publicly to
approve or recommend, a Parent Acquisition Proposal.
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(c) In addition to the obligations of Parent set forth in paragraphs (a)
and (b) of this Section 6.3, Parent will promptly (and in any event within
twenty-four (24) hours) advise the Company, orally and in writing, if any Parent
Acquisition Proposal is made or proposed to be made or any information or access
to properties, books or records of Parent is requested in connection with a
Parent Acquisition Proposal, the principal terms and conditions of any such
Parent Acquisition Proposal or potential Parent Acquisition Proposal or inquiry
(and will disclose any written materials received by Parent in connection with
such Parent Acquisition Proposal, potential Parent Acquisition Proposal or
inquiry) and the identity of the party making such Parent Acquisition Proposal,
potential Parent Acquisition Proposal or inquiry. Parent will keep the Company
advised of the status and details (including amendments and proposed amendments)
of any such request or Parent Acquisition Proposal.
6.4 Meeting of Stockholders. Parent, on the one hand, and the Company
-----------------------
on the other, shall each take all action necessary in accordance with applicable
law and its Certificate of Incorporation and By-Laws to convene a meeting of its
stockholders (the "Stockholder Meetings") as promptly as practicable to consider
and vote upon the approval of the Merger and the issuance of the Parent Shares,
as the case may be. Subject to the fiduciary duties of each Party's Board of
Directors under applicable law in consultation with independent legal counsel
(who may be the Party's regularly engaged independent legal counsel), the Board
of Directors of Parent, on the one hand, and the Company, on the other, shall
recommend and each shall declare advisable such approval (the requisite approval
by stockholders of the Company as well as by stockholders of Parent is
hereinafter referred to collectively as the "Requisite Stockholder Approval");
provided, however, that the Board of Directors of Parent and the Board of
Directors of the Company shall submit this Agreement to the stockholders of
Parent and the Company, as the case may be, whether or not the Board of
Directors of Parent or the Board of Directors of the Company, as the case may
be, at any time subsequent to the date hereof determines that this Agreement is
no longer advisable or recommends that the stockholders of Parent or the
Company, as the case may be, reject it. Unless the Board of Directors of Parent
or the Board of Directors of the Company, as the case may be, has withdrawn its
recommendation of this Agreement in compliance herewith, each of Parent and the
Company shall use reasonable efforts to solicit from its stockholders proxies in
favor of the approval and adoption of this Agreement and the Merger and to
secure the vote or consent of stockholders required by the DGCL and its
respective Certificate of Incorporation and Bylaws to approve and adopt this
Agreement and the Merger and the issuance of Parent Shares, as the case may be.
6.5 Registration Statement. Parent will, as promptly as practicable,
----------------------
prepare and file with the SEC a registration statement on Form S-4 (the "S-4
Registration Statement"), containing a proxy statement/prospectus and a form of
proxy, in connection with the registration under the Securities Act of the
Parent Shares issuable upon conversion of the Shares and the other transactions
contemplated hereby. The Company and Parent will, as promptly as practicable,
prepare and file with the SEC a proxy statement that will be the same proxy
statement/prospectus contained in the S-4 Registration Statement and a form of
proxy, in connection with the vote of the Company's and Parent's stockholders
with respect to the Merger and the issuance of the Parent Shares (such proxy
statement/prospectus, together with any amendments thereof or supplements
thereto, in each case in the form or forms mailed to the Company's and Parent's
stockholders, is herein called the "Joint
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Proxy Statement"). The Company and Parent will, and will cause their
accountants and lawyers to, use their reasonable efforts to have or cause the S-
4 Registration Statement declared effective as promptly as practicable,
including, without limitation, causing their accountants to deliver necessary or
required instruments such as opinions, consents and certificates, and will take
any other action required or necessary to be taken under federal or state
securities laws or otherwise in connection with the registration process, it
being understood and agreed that Katten Muchin & Zavis, counsel to Parent, and
Wilson Sonsini Goodrich & Rosati, P.C., counsel to the Company, will each render
the tax opinions referred to in Section 7.1(g) and 7.1(h), respectively, on (i)
the date the preliminary Joint Proxy Statement is filed with the SEC and (ii)
the date the S-4 Registration Statement is filed with the SEC. The Company and
Parent will each use their reasonable efforts to cause the Joint Proxy Statement
to be mailed to their respective stockholders at the earliest practicable date
and will coordinate and cooperate with one another with respect to the timing of
the Stockholder Meetings and the Company and Parent shall each use their
commercially reasonable efforts to hold such Stockholder Meetings as soon as
practicable after the date hereof. Parent shall also take any action required
to be taken under state blue sky or other securities laws in connection with the
issuance of Parent Shares in the Merger.
6.6 Reasonable Efforts. The Parties shall: (i) promptly make
------------------
their respective filings and thereafter make any other required submissions
under all applicable laws with respect to the Merger and the other transactions
contemplated hereby; and (ii) use their reasonable efforts to promptly take, or
cause to be taken, all other actions and do, or cause to be done, all other
things necessary, proper or appropriate to consummate and make effective the
transactions contemplated by this Agreement as soon as practicable.
6.7 Access to Information. Upon reasonable notice, Parent, on the one
---------------------
hand, and the Company, on the other, shall (and shall cause each of their
subsidiaries to) afford to officers, employees, counsel, accountants and other
authorized representatives of the other such party (the "Authorized
Representatives") reasonable access, during normal business hours throughout the
period prior to the Effective Time, to their properties, assets, books and
records and, during such period, shall (and shall cause each of their
subsidiaries to) furnish promptly to such Authorized Representatives all
information concerning their business, properties, assets and personnel as may
reasonably be requested for purposes of appropriate and necessary due diligence,
provided that no investigation pursuant to this Section 6.7 shall affect or be
deemed to modify any of the representations or warranties made by the Parties.
The Parties each agree to treat (and cause their Authorized Representatives to
treat) any and all information provided pursuant to this Section 6.7 in strict
compliance with the terms of that certain Confidentiality Agreement, entered by
and between the Company and Parent, dated November 18, 1999 (the
"Confidentiality Agreement").
6.8 Publicity. The Parties agree that they will consult with
---------
each other concerning any proposed press release or public announcement
pertaining to the Merger in order to agree upon the text of any such press
release or the making of such public announcement, which agreement shall not be
unreasonably withheld, except as may be required by applicable law or by
obligations pursuant to any listing agreement with an national securities
exchange or national automated quotation system, in which case the party
proposing to issue such press release or make such public
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announcement shall use reasonable efforts to consult in good faith with the
other party before issuing any such press release or making any such public
announcement. Notwithstanding the foregoing, in the event the Board of Directors
of Parent or the Company withdraws its recommendation of this Agreement in
compliance herewith, neither party will be required to consult with or obtain
the agreement of the other in connection with any press release or public
announcement.
6.9 Indemnification of Directors and Officers.
-----------------------------------------
(a) From and after the Effective Time, Parent shall, and in addition
shall cause the Surviving Corporation to, indemnify, defend and hold harmless
the present and former officers and directors of the Company and any of their
subsidiaries against all losses, expenses, claims, damages or liabilities
arising out of actions or omissions occurring on or prior to the Effective Time
(including, without limitation, the transactions contemplated by this Agreement)
to the full extent (not otherwise covered by insurance) permitted or required
under applicable law (and shall also advance expenses as incurred to the fullest
extent permitted under applicable law, provided that the Person to whom expenses
--------
are advanced provides an undertaking to repay such advances if it is ultimately
determined that such Person is not entitled to indemnification); provided,
--------
however, the indemnification provided hereunder by Parent shall not be greater
- -------
than the greater of (x) the indemnification actually provided pursuant to the
Company's Certificate of Incorporation and By-Laws, as in effect as of the date
hereof or (y) the indemnification actually provided by the Company as of the
date hereof. Parent agrees that all rights to indemnification, including
provisions relating to advances of expenses incurred in defense of any action or
suit, existing in favor of the present or former directors, officers, employees,
fiduciaries and agents of the Company, Parent or any of their subsidiaries
(collectively, the "Indemnified Parties") as provided in, as the case may be,
the Company's Certificate of Incorporation or By-Laws or pursuant to other
agreements, or articles or certificates of incorporation or by-laws or similar
documents of any of the Company's or Parent's subsidiaries, as in effect as of
the date hereof, with respect to matters occurring through the Effective Time,
shall survive the Merger.
(b) Parent shall cause to be maintained in effect for not less than
six (6) years the current policies of directors' and officers' liability
insurance and fiduciary liability insurance maintained by the Company, Parent
and their subsidiaries with respect to matters occurring prior to the Effective
Time to the extent required to cover the types of actions and omissions
currently covered by such policies; provided, however, that (i) Parent may
-------- -------
substitute therefor policies of substantially the same coverage containing terms
and conditions which are not less advantageous, in any material respect, to the
Indemnified Parties and (ii) Parent shall not be required to pay an annual
premium for such insurance in excess of two hundred percent (200%) of current
aggregate policies but in such case shall purchase as much coverage as possible
for such amount.
(c) In the event that any action, suit, proceeding or investigation
relating hereto or to the transactions contemplated by this Agreement is
commenced, whether before or after the Closing, the parties hereto agree to
cooperate and use their respective commercially reasonable efforts to vigorously
defend against and respond thereto.
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(d) This Section 6.9 is intended to benefit the Indemnified Parties
and shall be binding on all successors and assigns of the Parties.
6.10 Affiliates of the Company and Parent. The Company has identified to
------------------------------------
Parent each "affiliate" of the Company for purposes of Rule 145 promulgated
under the Securities Act (each, a "Company Affiliate") and the Company will use
its reasonable efforts to obtain as promptly as practicable from each Company
Affiliate written agreements in the form attached hereto as Exhibit C (the
---------
"Company Affiliate Letter") that such Company Affiliate will not sell, pledge,
transfer or otherwise dispose of any Parent Shares issued to such Company
Affiliate pursuant to the Merger, except in compliance with Rule 145 promulgated
under the Securities Act or an exemption from the registration requirements of
the Securities Act.
6.11 Maintenance of Insurance. Between the date hereof and through
------------------------
the Effective Time each of the Company and Parent will maintain in full force
and effect all of their and their subsidiaries presently existing policies of
insurance or insurance comparable to the coverage afforded by such policies.
6.12 Representations and Warranties. Each of the Company and Parent shall
------------------------------
give prompt notice to the other of any circumstances that would cause any of
their respective representations and warranties set forth in Section 5.1 or 5.2,
as the case may be, not to be true and correct in all material respects at and
as of the Effective Time.
6.13 Filings; Other Action. Subject to the terms and conditions herein
---------------------
provided, the Parties shall: (a) promptly make their respective filings and
thereafter make any other required submissions under the HSR Act, the Securities
Act and the Exchange Act with respect to the Merger; (b) cooperate in the
preparation of such filings or submissions under the HSR Act; and (c) use
reasonable efforts promptly to take, or cause to be taken, all other actions and
do, or cause to be done, all other things necessary, proper or appropriate under
applicable laws and regulations to consummate and make effective the
transactions contemplated by this Agreement as soon as practicable.
6.14 Tax-Free Reorganization Treatment. Prior to the Effective Time, the
---------------------------------
Parties shall use their best efforts to cause the Merger to be treated as a
reorganization within the meaning of Section 368 of the Code and to obtain the
opinion of their respective counsels contemplated by Section 7.1 and shall not
knowingly take or fail to take any action which action or failure to act would
jeopardize the qualification of the Merger as a reorganization within Section
368 of the Code.
6.15 Company Options; Company ESPPs.
------------------------------
(a) After the Effective Time, except as provided above, each
Substitute Option shall be subject to the same terms and conditions as were
applicable under the related Company Option immediately prior to the Effective
Time. The Company agrees that it will not grant any stock appreciation rights or
limited stock appreciation rights and will not permit cash payments to holders
of Company Options in lieu of the substitution therefor of Substitute Options,
as described herein. As soon as practicable after the Effective Time, Parent
shall deliver to each holder of a Company
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Option an appropriate notice setting forth such holder's right to acquire Parent
Shares and Company Option agreements of such holder shall be deemed to be
appropriately amended so that such Company Options shall represent rights to
acquire Parent Shares on substantially the same terms and conditions as
contained in the outstanding Company Options.
(b) From and after the date hereof, the Company (i) shall not commence
any "offering periods" or "purchase periods" under its 1997 Employee Stock
Purchase Plan or the CKS Group, Inc. Employee Stock Purchase Plan (collectively,
the "Company ESPPs") and shall apply all amounts deducted and withheld
thereunder to purchase shares of the Company in accordance with the provisions
thereof, (ii) shall not grant any bonuses under its Acquisition Stock Bonus
Plan, and (iii) shall terminate the Company ESPPs or the Acquisition Stock
Purchase Plan and the Acquisition Stock Purchase Plan as of the Effective Time.
Parent shall have no obligation or duty in respect of the Company ESPPs or the
Acquisition Stock Purchase Plan or the rights granted thereunder.
(c) Parent shall file and use commercially reasonable efforts to cause
there to be effective within one week of the Effective Time a registration
statement on Form S-8 (or any successor form) or other appropriate forms, with
respect to Parent Shares subject to such Company Options and shall use
commercially reasonable efforts to maintain the effectiveness of such
registration statement or registration statements (and maintain the current
status of the prospectus or prospectuses contained therein) for so long as such
Company Options remain outstanding.
6.16 Stockholders Agreements. Concurrently with the execution and
-----------------------
delivery of this Agreement, each of the Voting Stockholders has executed and
delivered each Stockholders Agreement, as applicable.
6.17 Board Composition. The Board of Directors of Parent will take
-----------------
all actions within its power to cause the Board of Directors of Parent,
effective upon the Effective Time, to consist of nine (9) Persons, four (4) of
whom shall have served on the Board of Directors of Parent ("Parent Directors")
immediately prior to the Effective Time (including the Chief Executive Officer
of Parent as of the date of this Agreement), and four (4) of whom shall have
served on the Board of Directors of the Company ("Company Directors")
immediately prior to the Effective Time (including the Chief Executive Officer
of the Company as of the date of this Agreement), and the "New Director." The
"New Director" shall be a person who is not a current director or employee of
Parent or the Company, and shall be selected by the Chief Executive Officer of
Parent, with the consent of the Chief Executive Officer of the Company, which
consent cannot be unreasonably withheld or delayed. The first class of
directors, with a term expiring at Parent's 2000 annual meeting of stockholders,
(and such persons shall be nominated for election at such meeting for a term
expiring at Parent's 2003 annual meeting) shall include one (1) Parent Director
and one (1) Company Director. The second class of directors, with a term
expiring at Parent's 2001 annual meeting of stockholders, shall include two (2)
Parent Directors and two (2) Company Directors, one of whom shall be Robert
Shaw. The third class of directors, with a term expiring at Parent's 2002 annual
meeting of stockholders, shall include one (1) Parent Director, one (1) Company
Director and the New Director. If, prior to the Effective Time, any of the
Parent or the Company designees shall decline or be unable to serve as a
director of Parent, the Company (if such Person was designated by
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the Company) or Parent (if such Person was designated by Parent) shall designate
another Person to serve in such Person's stead, which Person shall be reasonably
acceptable to the other party.
6.18 Officers of Combined Company. Robert Shaw shall be elected non-
----------------------------
executive Chairman of Parent effective as of the Effective Time, and Robert F.
Bernard shall remain the Chief Executive Officer, with the additional title of
President, of Parent (reporting directly to the Board of Directors as a whole).
At the Effective Time, the Chief Operating Officer Robert Clarkson, the Chief
Creative Officer Thomas Suiter, the Chief Strategist & Information Officer Ian
Small, and the Chief People Officer Richard Evans, of the Company, as of the
date of this Agreement will be offered positions as the Chief Operating Officer,
the Chief Creative Officer, the Chief Strategist Officer and the Chief People
Officer of Parent, respectively. The Chief Executive Officer, Chief Financial
Officer and Executive Vice President of Corporate Development of Parent shall
remain in such positions after the Effective Time.
6.19 Change of Name. Subject to the terms hereof, at Parent's
--------------
Stockholders' Meeting, Parent shall propose and recommend that its Certificate
of Incorporation be amended at the Effective Time to change its name to a new
name to be agreed upon by Parent and the Company.
6.20 Contemplated Termination of 401(k) Plan(s). Parent and its Plan
------------------------------------------
Affiliates and Company and its Plan Affiliates each agree to evaluate whether
the termination of any of their 401(k) plans is reasonable in light of the
Merger contemplated herein. To the extent that Parent and Company agree to
terminate one (1) or more 401(k) plans prior to the Effective Time, the sponsor
of such plan will take any and all actions required under the circumstances to
effectuate such termination prior to the Effective Time including, without
limitation, resolutions of that entity's Board of Directors (the form and
substance of which resolutions shall be subject to review and approval by the
other entity).
6.21 Crediting Service and Providing Other Benefits. Parent shall either
----------------------------------------------
(i) adopt and maintain any or all employee welfare benefit plan, as defined in
Section 3(1) of ERISA and as specified in Section 5.2(m) of the Company
Disclosure Schedule (the "Scheduled Welfare Plans"), and, accordingly, shall
thereby continue in full force and effect each Scheduled Welfare Plan subject to
the terms and conditions thereof, to the extent such Scheduled Welfare Plan is
offered as of the Effective Time to each eligible employee of the Company and
its participating Affiliates, his or her dependents and each Qualified
Beneficiary (as such term is defined in COBRA); or (ii) provide all eligible
employees of the Company and their dependents and all Qualified Beneficiaries
(as such term is defined in COBRA) with coverage under one or more of Parent's
employee welfare benefit plans (as defined in Section 3(1) of ERISA) that
corresponds to a Scheduled Welfare Plan which meets all of the following
requirements as of the Effective Time (the "Successor Welfare Plan"): (A) the
coverage is as favorable as that provided to Parent employees in similar
circumstances, (B) service with the Company or its Affiliates prior to the
Effective Time shall be credited against all service and waiting period
requirements under the Successor Welfare Plan(s), (C) Parent shall make its
commercially reasonable best efforts to have the Successor Welfare Plan(s) not
provide any pre-existing condition exclusion(s) to persons who were not excluded
under the Company Scheduled Plans, and (D) the deductibles and co-payments in
effect under the Successor Welfare Plan(s) shall
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be reduced by any deductibles and/or co-payments, respectively, paid by such
individuals under the corresponding Scheduled Welfare Plan for the plan year in
which the Effective Time occurs. In addition, service with the Company shall be
recognized for all purposes under Parent's compensation and benefit plans,
programs, policies and arrangements, except where crediting such service would
result in a duplication of benefits or is not legally permissible. Without
limiting the generality of the foregoing, Parent shall honor all vacation,
personal and sick days accrued by Continuing Employees under the Company's
plans, policies, programs and arrangements immediately prior to the Effective
Time to the same extent required to be honored under the Company's plan,
programs, policies and arrangements in effect on the date hereof.
6.22 Earn-Out Shares. The Company shall use its reasonable efforts
---------------
to amend all acquisition agreements to which it or one of its subsidiaries is a
party and that provide for the future issuance of Company Shares or shares of
capital stock of a subsidiary ("Subsidiary Shares") as deferred consideration,
purchase price adjustment or otherwise, to allow for the issuance of Parent
Shares in lieu of Company Shares or Subsidiary Shares in an amount equal to, (i)
with respect to the Company Shares, the number of Company Shares otherwise
issuable, multiplied by the Exchange Ratio, and (ii) with respect to the
Subsidiary Shares, the number of Subsidiary Shares otherwise issuable,
multiplied by a factor that appropriately reflects the exchange ratio or other
valuation factor used in the acquisition of the respective subsidiary by the
Company.
6.23 Exemption from Liability Under Section 16(b).
--------------------------------------------
(a) Provided that the Company delivers to Parent the Section 16
Information with respect to the Company prior to the Effective Time, the Board
of Directors of Parent, or a committee of Non-Employee Directors thereof (as
such term is defined for purposes of Rule 16b-3(d) under the Exchange Act),
shall adopt a resolution in advance of the Effective Time providing that the
receipt by the Company Insiders of Parent Shares in exchange for Company Shares,
and of options to purchase Parent Shares in exchange for shares of Company
Shares, and of options to purchase Parent Shares upon assumption and conversion
by Parent of options to purchase Company Shares, in each case pursuant to the
transactions contemplated hereby and to the extent such securities are listed in
the Section 16 Information, are intended to be exempt from liability pursuant to
Rule 16b-3 under the Exchange Act.
(b) "Section 16 Information" shall mean information accurate in all
respects regarding the Company Insiders, the number of Company Shares or other
Company equity securities deemed to be beneficially owned by each Company
Insider and expected to be exchanged for Parent Shares in connection with the
Merger.
(c) "Company Insiders" shall mean those officers and directors of
Company who are subject to the reporting requirements of Section 16(a) of the
Exchange Act who are listed in Section 16 Information.
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ARTICLE VII
Conditions
7.1 Conditions to Each Party's Obligations. The respective obligations
--------------------------------------
of each Party to consummate the Merger are subject to the satisfaction or waiver
by each of the Parties of the following conditions:
(a) this Agreement and the Merger shall have received the Requisite
Stockholder Approvals;
(b) the S-4 Registration Statement shall have become effective in
accordance with the provisions of the Securities Act, and no stop order
suspending the effectiveness of the Registration Statement shall have been
issued by the SEC and remain in effect;
(c) no judgment, order, decree, statute, law, ordinance, rule or
regulation, entered, enacted, promulgated, enforced or issued by any court or
other Governmental Entity of competent jurisdiction or other legal restraint or
prohibition preventing the consummation of the Merger or making the Merger
illegal (collectively, "Restraints") shall be in effect, and there shall not be
pending any suit, action or proceeding by any Governmental Entity preventing the
consummation of the Merger; provided, however, that each of the parties shall
-------- -------
have used reasonable efforts to prevent the entry of such Restraints and to
appeal as promptly as possible any such Restraints that may be entered;
(d) the waiting period(s) under the HSR Act and all applicable
material foreign merger laws, if any, shall have expired; and each of Parent and
the Company shall have received a written opinion from its respective tax
counsel (Katten Muchin & Zavis and Wilson Sonsini Goodrich & Rosati,
Professional Corporation, respectively), in form and substance reasonably
satisfactory to them, to the effect that the Merger will constitute a tax-free
reorganization within the meaning of Section 368(a) of the Code and such
opinions shall not have been withdrawn; provided, however, that if the counsel
-------- -------
to either Parent or the Company does not render such opinion, this condition
shall nonetheless be deemed to be satisfied with respect to such party if
counsel to the other party renders such opinion to such party. The parties to
this Agreement agree to make such reasonable representations as requested by
such counsel for the purpose of rendering such opinions.
7.2 Conditions to the Obligations of the Company. The obligations of the
--------------------------------------------
Company to consummate the Merger are subject to the fulfillment at or prior to
the Effective Time of the following conditions, any or all of which may be
waived in whole or in part by the Company to the extent permitted by applicable
law:
(a) the representations and warranties of Parent set forth in Section
5.1 that are qualified as to materiality or Material Adverse Effect, or in
Sections 5.1(a), (b) or (d) shall be true and correct (provided, however, that
with respect to the representations and warranties contained in Section 5.1(b),
an understatement in Section 5.1(b) of the number of Parent Shares outstanding
or of the number of Parent Shares issuable under outstanding options, warrants
or other commitments
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shall not render such representations and warranties untrue or incorrect unless
the difference between (x) the actual number of Parent Shares outstanding or the
actual number of Parent Shares issuable under outstanding options, warrants or
other commitments, and (y) the number of Parent Shares outstanding or the number
of Parent Shares issuable under outstanding options, warrants or other
commitments set forth in Section 5.1(b) is equal to or greater than one-half
percent (0.5%) of the number set forth in Section 5.1(b)), and those that are
not so qualified shall be true and correct in all material respects, in each
case as of the date of this Agreement, and as of the Effective Time with the
same force and effect as if made on and as of the Effective Time (except to the
extent expressly made as of an earlier date, in which case as of such date), in
each case except as permitted or contemplated by this Agreement (it being
understood that for purposes of determining the accuracy of such representations
and warranties (i) any update or modification to the Parent's Disclosure
Schedule made or purported to have been made without the Company's written
consent thereto shall be disregarded, (ii) any inaccuracy that results from a
Material Adverse Effect Exception shall be disregarded, and (iii) with respect
to representations and warranties as if made as of the Effective Time, (x) all
qualifications as to materiality or Material Adverse Effect shall be
disregarded, and (y) any inaccuracies in such representations and warranties (as
so modified) shall be disregarded, if the inaccuracies (considered collectively)
do not constitute and are not reasonably expected to result in a Material
Adverse Effect on Parent).
(b) Parent and its subsidiaries shall have performed or complied in
all material respects with its agreements and covenants required to be performed
or complied with under this Agreement as of or prior to the Effective Time;
(c) Parent shall have delivered to the Company a certificate of its
Chief Executive Officer and Chief Financial Officer to the effect that each of
the conditions specified in Section 7.1 (as it relates to Parent) and clauses
(a), (b) and (d) of this Section 7.2 is satisfied in all respects;
(d) from the date of this Agreement to the Effective Time, there shall
not have been any event or development which has resulted in a Material Adverse
Effect (other then any Material Adverse Effect Exception) on Parent nor shall
there have occurred any event or development which could reasonably be likely to
result in the future in a Material Adverse Effect on Parent (other than any
Material Adverse Effect Exception);
(e) the Parent Shares to be issued in the Merger to the stockholders
of the Company shall have been approved for listing on the NNM.
7.3 Conditions to the Obligations of Parent. The obligation of Parent to
---------------------------------------
consummate the Merger is subject to the fulfillment at or prior to the Effective
Time of the following conditions, any or all of which may be waived in whole or
in part by Parent to the extent permitted by applicable law:
(a) the representations and warranties of the Company set forth in
Section 5.2 that are qualified as to materiality or Material Adverse Effect, or
in Sections 5.2(a), (b) or (d) shall be true and correct (provided, however,
that with respect to the representations and warranties contained in Section
5.2(b) an understatement in Section 5.2(b) of the number of Company Shares
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outstanding or of the number of Company Shares issuable under outstanding
options, warrants or commitments shall not render such representations and
warranties untrue or incorrect unless the difference between (x) the actual
number of Company Shares outstanding or the actual number of Company Shares
issuable under outstanding options, warrants or other commitments, and (y) the
number of Company Shares outstanding or the number of Company Shares issuable
under outstanding options, warrants or other commitments set forth in Section
5.2(b) is equal to or greater than one-half percent (0.5%) of the number set
forth in Section 5.2(b)), and those that are no so qualified shall be true and
correct in all material respects, in each case as of the date of this Agreement,
and as of the Effective Time with the same force and effect as if made on and as
of the Effective Time (except to the extent expressly made as of an earlier
date, in which case as of such date), in each case except as permitted or
contemplated by this Agreement (it being understood that for purposes of
determining the accuracy of such representations or warranties (i) any update or
modifications to the Company's Disclosure Schedule made or purported to have
been made without Parent's written consent thereto shall be disregarded, (ii)
any inaccuracy that results from a Material Adverse Effect Exception shall be
disregarded and (iii) with respect to representations and warranties as if made
as of the Effective Time, (x) all qualifications as to materiality or Material
Adverse Effect shall be disregarded, and (y) any inaccuracies in such
representations and warranties (as so modified) shall be disregarded, if the
inaccuracies (considered collectively) do not constitute and are not reasonably
expected to result in a Material Adverse Effect on the Company).
(b) the Company and its subsidiaries shall have performed or complied
with in all material respects its agreements and covenants required to be
performed or complied with under this Agreement as of or prior to the Effective
Time;
(c) the Company shall have delivered to Parent a certificate of its
Chief Executive Officer and Chief Financial Officer to the effect that each of
the conditions specified in Section 7.1 and clauses (a), (b) and (d) of this
Section 7.3 is satisfied in all respects; and
(d) from the date of this Agreement to the Effective Time, there shall
not have been any event or development which results in a Material Adverse
Effect (other than any Material Adverse Effect Exception) on the Company.
ARTICLE VIII
Termination
8.1 Termination by Mutual Consent. This Agreement may be terminated
-----------------------------
and the Merger may be abandoned at any time prior to the Effective Time, before
or after gaining Requisite Stockholder Approval, by the mutual written consent
of the Company and Parent.
8.2 Termination by either the Company or Parent. This Agreement may be
-------------------------------------------
terminated and the Merger may be abandoned by action of the Board of Directors
of either the Company or Parent if:
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(a) the Merger shall not have been consummated by May 31, 2000 (the
"Outside Date"); provided, however, that the right to terminate this Agreement
-------- -------
under this Section 8.2(a) shall not be available to any party whose failure to
fulfill any obligation under this Agreement has been the principal cause of or
resulted in the failure of the Merger to occur on or before such date and such
action or failure to act constitutes a material breach of this Agreement;
(b) if any Restraint shall be in effect and shall have become final and
nonappealable; or
(c) (i) at the Company's duly held Stockholders' Meeting (including any
adjournments thereof), the Requisite Stockholder Approval of the Company's
stockholders shall not have been obtained; provided, however, that the right to
terminate this Agreement under this Section 8.2(c)(i) shall not be available to
any party which has not complied with its obligations under Sections 6.2 or 6.3,
as applicable, and 6.4, or
(ii) at Parent's duly held Stockholders' Meeting (including any
adjournments thereof), the Requisite Stockholder Approval of Parent's
stockholders shall not have been obtained; provided, however, that the right to
terminate this Agreement under this Section 8.2(c)(ii) shall not be available to
any party which has not complied with its obligations under Sections 6.2 or 6.3,
as applicable, and 6.4.
8.3 Termination by the Company. This Agreement may be terminated upon
--------------------------
written notice to Parent and the Merger may be abandoned at any time prior to
the Effective Time, before or after the approval by holders of the Company
Shares, by action of the Board of Directors of the Company, if:
(a) Parent shall have breached or failed to perform any of the
representations, warranties, covenants or other agreements contained in this
Agreement, or if any representation or warranty shall have become untrue, in
either case such that (i) the condition set forth in Section 7.2(a) or (b),
would not be satisfied as of the time of such breach or as of such time as such
representation or warranty shall have become untrue and (ii) such breach or
failure to be true has not been or is incapable of being cured within twenty
(20) business days following receipt by Parent of notice of such failure to
comply; or
(b) (i) the Board of Directors of Parent or any committee thereof
shall have withdrawn or modified in a manner adverse to the Company its
recommendation of approval of the Agreement and the issuance of Parent Shares
pursuant to the Merger, (ii) Parent shall have failed to include in the Proxy
Statement the recommendation of the Board of Directors of Parent in favor of
approval of the Agreement and the issuance of Parent Shares pursuant to the
Merger, (iii) in connection with a Rule 14d-9 disclosure, the Board of Directors
of Parent shall have taken any action other than a rejection of the Rule 14d-9
proposal, (iv) the Board of Directors of Parent or any committee thereof shall
have recommended any Parent Acquisition Proposal, (v) Parent or any of its
officers or directors shall have entered into discussions or negotiations in
violation of Section 6.3, (vi) the Board of Directors of Parent or any committee
thereof shall have resolved to do any of the foregoing or (vii) any Parent
Acquisition Proposal is consummated.
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8.4 Termination by Parent. This Agreement may be terminated upon
---------------------
written notice to the Company and the Merger may be abandoned at any time prior
to the Effective Time, before or after the approval by holders of Parent Shares,
by action of the Board of Directors of Parent, if:
(a) the Company shall have breached or failed to perform any of the
representations, warranties, covenants or other agreements contained in this
Agreement, or if any representation or warranty shall have become untrue, in
either case such that (i) the condition set forth in Section 7.3(a) or (b),
would not be satisfied as of the time of such breach or as of such time as such
representation or warranty shall have become untrue and (ii) such breach or
failure to be true has not been or is incapable of being cured within twenty
(20) business days following receipt by the breaching party of notice of such
failure to comply; or
(b) (i) the Board of Directors of the Company or any committee
thereof, shall have withdrawn or modified in a manner adverse to Parent its
approval or recommendation of the Merger or this Agreement, (ii) the Company
shall have failed to include in the Proxy Statement the recommendation of the
Board of Directors of the Company in favor of approval to the Merger and this
Agreement, (iii) in connection with a Rule 14d-9 disclosure, the Board of
Directors of the Company shall have taken any action other than a rejection of a
Rule 14d-9 proposal, (iv) the Board of Directors of the Company or any committee
thereof shall have recommended any Company Acquisition Proposal, (v) the Company
or any of its officers or directors shall have entered into discussions or
negotiations in violation of Section 6.2, (vi) the Board of Directors of the
Company or any committee thereof shall have resolved to do any of the foregoing
or (vii) any Company Acquisition Proposal is consummated.
8.5 Effect of Termination; Termination Fee.
--------------------------------------
(a) Except as set forth in this Section 8.5, in the event of
termination of this Agreement by either Parent or the Company as provided in
this Article VIII, this Agreement shall forthwith become void and there shall be
no liability or obligation on the part of the Parties or their respective
affiliates, officers, directors or stockholders except (x) with respect to the
treatment of confidential information pursuant to Section 6.6, the payment of
expenses pursuant to Section 9.1, and Article IX generally, (y) to the extent
that such termination results from the willful breach of a Party of any of its
representations or warranties, or any of its covenants or agreements or (z)
intentional or knowing misrepresentation in connection with this Agreement or
the transactions contemplated hereby.
(b) In the event that (i) a Company Acquisition Proposal or the
intention to make a Company Acquisition Proposal shall have been made directly
to the stockholders of the Company generally or otherwise publicly announced by
the Company or the Person making such Company Acquisition Proposal, and such
---
Company Acquisition Proposal or intention is not irrevocably and publicly
withdrawn prior to the vote of the Company stockholders at the Company's duly
held Stockholders' Meeting, and thereafter this Agreement is terminated by
---
either the Company or Parent pursuant to Section 8.2(a) [Drop dead date] due to
the Company's Stockholders' Meeting not occurring as a result of such Company
Acquisition Proposal or (c)(i) [Company stockholder disapproval], or (ii) this
Agreement is terminated by Parent pursuant to Section 8.4(b) [Company
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Board withdraws recommendation], then the Company shall promptly, but in no
event later than the date of such termination, pay Parent a fee equal to $150
million (the "Termination Fee"), payable by wire transfer of same day funds;
provided, however, that no Termination Fee shall be payable to Parent pursuant
- -------- -------
to clause (i) of this paragraph (b) unless and until within twelve (12) months
of such termination the Company or any of its subsidiaries enters into any
Company Acquisition Agreement with respect to, or consummates, any Company
Acquisition Proposal (for the purposes of the foregoing proviso the term
"Company Acquisition Proposal" shall have the meaning assigned to such term in
Section 6.2 except that references to 35% in the definition of "Company
Acquisition Proposal" in Section 6.2 as they relate to net revenues, net income,
voting power or assets of Company shall be deemed to be references to "50%"), in
which event the Termination Fee shall be payable upon the first to occur of such
events; provided further, if the Company consummates a Company Acquisition
-------- -------
Proposal during the twelve (12) month period subsequent to such termination
contemplated by clause (i) of this paragraph (b) with the same person or an
affiliate of the person that made and withdrew a Company Acquisition Proposal
prior to such termination, the Company shall pay Parent the Termination Fee at
the time contemplated by the preceding proviso. The Company acknowledges that
the agreements contained in this Section 8.5(b) are an integral part of the
transactions contemplated by this Agreement, and that, without these agreements,
Parent would not enter into this Agreement, and accordingly, if the Company
fails promptly to pay the amount due pursuant to this Section 8.5(b), and, in
order to obtain such payment, Parent commences a suit which results in a
judgment against the Company for the fee set forth in this Section 8.5(b), the
Company shall pay to Parent its costs and expenses (including reasonable
attorneys' fees and expenses) in connection with such suit, together with
interest on the amount of the fee at the prime rate of Citibank, N.A. in effect
on the date such payment was required to be made.
(c) In the event that (i) a Parent Acquisition Proposal or the intention to
make a Parent Acquisition Proposal shall have been made directly to the
stockholders of Parent generally or otherwise publicly announced by Parent or
the Person making such Parent Acquisition Proposal, and such Parent Acquisition
---
Proposal or intention is not irrevocably and publicly withdrawn prior to the
vote of Parent stockholders at the duly held Stockholders' Meeting. and
---
thereafter this Agreement is terminated by either Parent or the Company pursuant
to Section 8.2(a) due to the Parent's Stockholders' Meeting not occurring as a
result of such Parent Acquisition Proposal or (c)(ii) [Parent stockholder
disapproval], or (ii) this Agreement is terminated by the Company pursuant to
Section 8.3(b) [Parent Directors withdraw recommendation], then Parent shall
promptly, but in no event later than the date of such termination, pay the
Company the Termination Fee, payable by wire transfer of same day funds;
provided, however, that no Termination Fee shall be payable to the Company
- -------- -------
pursuant to clause (i) of this paragraph (c) unless and until within twelve (12)
months of such termination Parent or any of its subsidiaries enters into any
Parent Acquisition Agreement with respect to, or consummates, any Parent
Acquisition Proposal (for the purposes of the foregoing proviso the term "Parent
Acquisition Proposal" shall have the meaning assigned to such term in Section
6.3 except that references to 35% in the definition of "Parent Acquisition
Proposal" in Section 6.3 as they relate to net revenues, net income, voting
power or assets of Parent, shall be deemed to be references to "50%"), in which
event the Termination Fee shall be payable upon the first to occur of such
events; provided further, that if the Parent consummates a Parent Acquisition
-------- -------
Proposal during the twelve (12) month period subsequent to such termination
contemplated by
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clause (i) of this paragraph (c) with the same person or an affiliate of such
person that made and withdrew a Parent Acquisition Proposal prior to such
termination, Parent shall pay the Company the Termination Fee at the time
contemplated by the preceding proviso. Parent acknowledges that the agreements
contained in this Section 8.5(c) are an integral part of the transactions
contemplated by this Agreement, and that, without these agreements, the Company
would not enter into this Agreement; accordingly, if Parent fails promptly to
pay the amount due pursuant to this Section 8.5(c), and, in order to obtain such
payment, the Company commences a suit which results in a judgment against Parent
for the fee set forth in this Section 8.5(c), Parent shall pay to the Company
its costs and expenses (including reasonable attorneys' fees and expenses) in
connection with such suit, together with interest on the amount of the fee at
the prime rate of Citibank, N.A. in effect on the date such payment was required
to be made.
(d) If this Agreement is terminated under circumstances in which a
party is entitled to receive the Termination Fee, the payment of such
Termination Fee shall be the sole and exclusive remedy available to such party,
except in the event of (x) a willful breach by the other party of any provision
of this Agreement in any material respect, or (y) the intentional or knowing
misrepresentation in connection with this Agreement or the transactions
contemplated hereby, in which event the non-breaching Party shall have all
rights, powers and remedies against the breaching Party which may be available
at law or in equity. All rights, powers and remedies provided under this
Agreement or otherwise available in respect hereof at law or in equity shall be
cumulative and not alternative, and the exercise of any such right, power or
remedy by any Party shall not preclude the simultaneous or later exercise of any
other such right, power or remedy by such Party.
ARTICLE IX
Miscellaneous and General
9.1 Payment of Expenses. Whether or not the Merger shall be
-------------------
consummated, each Party shall pay its own expenses incident to preparing for,
entering into and carrying out this Agreement and the consummation of the
transactions contemplated hereby, provided that the Surviving Corporation shall
pay any and all property or transfer taxes imposed on the Surviving Corporation.
The filing fee and the cost of printing the S-4 Registration Statement and the
Joint Proxy Statement and the filing fee for the required filing under the HSR
Act shall be borne equally by the Company and Parent.
9.2 Non-Survival of Representations and Warranties. The representations
----------------------------------------------
and warranties made herein shall not survive beyond the Effective Time or a
termination of this Agreement, except to the extent a willful breach of such
representation or intentional or knowing misrepresentation formed the basis for
such termination. This Section 9.2 shall not limit any covenant or agreement of
the Parties which by its terms contemplates performance after the Effective
Time.
9.3 Modification or Amendment. Subject to the applicable provisions
-------------------------
of the DGCL, at any time prior to the Effective Time, the parties hereto, by
resolution of their respective Board of Directors, may modify or amend this
Agreement, by written agreement executed and delivered by duly authorized
officers of the respective parties; provided, however, that after approval of
the
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Merger by the Requisite Stockholder Approval is obtained, no amendment which
requires further stockholder approval shall be made without such approval of
stockholders.
9.4 Waiver of Conditions. The conditions to each of the Parties'
--------------------
obligations to consummate the Merger are for the sole benefit of such party and
may be waived by such party in whole or in part to the extent permitted by
applicable law.
9.5 Counterparts. For the convenience of the parties hereto,
------------
this Agreement may be executed in any number of counterparts, each such
counterpart being deemed to be an original instrument, and all such counterparts
shall together constitute the same agreement.
9.6 Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the laws of the State of Delaware, without giving effect to the
principles of conflicts of law thereof.
9.7 Notices. Any notice, request, instruction or other document to be
-------
given hereunder by any party to the other Parties shall be deemed delivered upon
actual receipt and shall be in writing and delivered personally or sent by
registered or certified mail, postage prepaid, reputable overnight courier, or
by facsimile transmission (with a confirming copy sent by reputable overnight
courier), as follows:
(a) if to Parent or Merger Sub, to:
Whittman-Hart, Inc.
311 South Wacker Drive
Suite 3500
Chicago, Illinois 60606-6618
Attention: Chief Executive Officer
Facsimile: (312) 913-3020_________
with a copy to:
Katten Muchin & Zavis
525 West Monroe Street
Suite 1600
Chicago, Illinois 60661-3693
Attention: Matthew S. Brown, Esq.
Facsimile: (312) 902-1061
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(b) if to the Company, to:
USWeb Corporation
410 Townsend Street
San Francisco, CA 94107
Attention: Chief Executive Officer
Facsimile: (415) 369-6713
with a copy to:
Wilson Sonsini Goodrich & Rosati, P.C.
650 Page Mill Road
Palo Alto, California 94304
Attention: Mark E. Bonham, Esq.
Steve L. Camahort, Esq.
Facsimile: (650) 493-6811
or to such other Persons or addresses as may be designated in writing by the
party to receive such notice.
9.8 Entire Agreement; Assignment. This Agreement, including the
----------------------------
Disclosure Schedule and Confidentiality Agreement, (i) constitutes the entire
agreement among the Parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and oral,
among the Parties or any of them with respect to the subject matter hereof, and
(ii) shall not be assigned by operation of law or otherwise.
9.9 Parties in Interest. This Agreement shall be binding upon and inure
-------------------
solely to the benefit of each party hereto and their respective successors and
assigns. Nothing in this Agreement, express or implied, other than the right to
receive the consideration payable in the Merger pursuant to Article IV hereof,
is intended to or shall confer upon any other Person any rights, benefits or
remedies of any nature whatsoever under or by reason of this Agreement;
provided, however, that (a) the provisions of Section 6.9 shall inure to the
benefit of and be enforceable by the Indemnified Parties; and (b) the provisions
of Section 6.19 and 6.20 shall inure to the benefit of and be enforceable by the
officers and directors of the Company and Parent referenced herein.
9.10 Certain Definitions. As used herein:
-------------------
(a) "ERISA" means the Employment Retirement Income Security Act of
1974, as amended.
(b) "Governmental Entity" means the United States or any state, local
or foreign government, or instrumentality, division, subdivision, agency,
department or authority of any thereof.
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(c) "knowledge" with respect to a party hereto shall mean the actual
knowledge of any of the executive officers of such party.
(d) "Malfunction" means the failure to: (i) accurately recognize dates
falling before, on or after the year 2000; (ii) accurately record, store,
retrieve and process data input and date information; (iii) function in a manner
which does not create any ambiguity as to century; and (iv) accurately manage
and manipulate single century and multi-century formulae, including leap year
calculations.
(e) "Material Adverse Effect" shall mean any adverse change in the
business, operations, liabilities (contingent or otherwise), results of
operations or financial performance, or condition of Parent or any of its
subsidiaries or the Company or any of its subsidiaries, as the case may be,
which is material to Parent and its subsidiaries, taken as a whole, or the
Company and its subsidiaries, taken as a whole, as the case may be.
(f) "Material Adverse Effect Exception" means (i) a change in the
market price or trading volume of either the Parent Shares or the Company Shares
between the date hereof and the Effective Time, in and of itself, and not
otherwise attributable to or resulting from any other effects, changes, events,
circumstances or conditions which by itself would constitute a Material Adverse
Effect (ii) effects, changes, events, circumstances and conditions generally
affecting the industry in which either Parent and its subsidiaries or the
Company and its subsidiaries operate or from changes in general business or
economic conditions in the region, nation or world, or (iii) any effects,
changes, events, circumstances or conditions resulting from (A) compliance by
Parent or the Company with the terms of, or the taking of any action expressly
required by, this Agreement, or (B) the pendency or announcement of this
Agreement, or the transactions contemplated hereby, including changes or effects
resulting from employee attrition or a delay of, reduction in or a cancellation
or change in the terms of customer engagements or relationships with alliance
partners or other third parties, each to the extent attributable to the pendency
or announcement of this Agreement or the transactions contemplated hereby.
(g) "Person" means any individual, sole proprietorship, partnership,
joint venture, trust, unincorporated association, corporation, entity or
Governmental Entity.
(h) "Significant Tax Agreement" is any agreement to which any Party or
any subsidiary of any Party is a party under which such Party or such subsidiary
could reasonably be expected to be liable to another party under such agreement
in an amount in excess of $25,000 in respect of Taxes payable by such other
party to any taxing authority.
(i) "Software" means all computer software and subsequent versions
thereof, including but not limited to, source code, object code, objects,
comments, screens, user interfaces, report formats, templates, menus, buttons
and icons, and all files, data, materials manuals, design notes and other items
and documentation related thereto or associated therewith.
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(j) "Subsidiary" shall mean, when used with reference to any entity,
any entity fifty percent (50%) or more of the outstanding voting securities or
interests of which are owned directly or indirectly by such former entity.
(k) "Tax" or "Taxes" refers to any and all federal, state, local and
foreign, taxes, assessments and other governmental charges, duties, impositions
and liabilities relating to taxes, including taxes based upon or measured by
gross receipts, income, profits, sales, use and occupation, and value added, ad
valorem, transfer, franchise, withholding, payroll, recapture, employment,
excise and property taxes, together with all interest, penalties and additions
imposed with respect to such amounts and including any liability for taxes of a
predecessor entity.
9.11 Obligation of the Company. Whenever this Agreement requires the
-------------------------
Surviving Corporation or Merger Sub to take any action, such requirement shall
be deemed to include an undertaking on the part of Parent to cause such party to
take such action.
9.12 Severability. If any term or other provision of this Agreement is
------------
invalid, illegal or unenforceable, all other provisions of this Agreement shall
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner materially
adverse to any party.
9.13 Specific Performance. The parties hereto acknowledge that irreparable
--------------------
damage would result if this Agreement were not specifically enforced, and they
therefore consent that the rights and obligations of the parties under this
Agreement may be enforced by a decree of specific performance issued by a court
of competent jurisdiction. Such remedy shall, however, not be exclusive and
shall be in addition to any other remedies which any party may have under this
Agreement or otherwise.
9.14 Recovery of Attorney's Fees. In the event of any litigation between the
---------------------------
parties relating to this Agreement, the prevailing party shall be entitled to
recover its reasonable attorney's fees and costs (including court costs) from
the non-prevailing party, provided that if both parties prevail in part, the
reasonable attorney's fees and costs shall be awarded by the court in such
manner as it deems equitable to reflect the relative amounts and merits of the
parties' claims.
9.15 Captions. The Article, Section and paragraph captions herein are for
--------
convenience of reference only, do not constitute part of this Agreement and
shall not be deemed to limit or otherwise affect any of the provisions hereof.
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
the duly authorized officers of the Parties hereto and shall be effective as of
the date first hereinabove written.
WHITTMAN-HART, INC.
By: /s/ Robert F. Bernard
-----------------------------
Name: Robert F. Bernard
---------------------------
Its: Chief Executive Officer
anf Chairman of the Board
----------------------------
UNIWHALE, INC.
By: /s/ Robert F. Bernard
-----------------------------
Name: Robert F. Bernard
---------------------------
Its: President
----------------------------
USWEB CORPORATION
By: /s/ Carolyn V. Aver
-----------------------------
Name: Carolyn V. Aver
---------------------------
Its: Executive Vice President and
Chief Financial Officer
----------------------------
<PAGE>
EXHIBIT 2
STOCKHOLDER AGREEMENT
THIS STOCKHOLDER AGREEMENT (the "Stockholder Agreement"), dated December 12,
1999, is by and between USWeb Corporation, a Delaware corporation (the
"Company"), and the undersigned stockholder ("Stockholder") of Whittman-Hart,
Inc., a Delaware corporation ("Parent").
RECITALS
A. WHEREAS, concurrent with the execution of this Stockholder Agreement,
Parent, the Company and Merger Sub, a Delaware corporation and a wholly owned
subsidiary of Parent, have entered into an Agreement and Plan of Merger, dated
of even date herewith (as amended from time to time, the "Merger Agreement"),
pursuant to which Merger Sub will be merged with and into the Company, with the
Company continuing as the surviving corporation and as a direct wholly owned
subsidiary of Parent (the "Merger").
B. WHEREAS, the Stockholder owns shares, par value $0.001 per share, of
common stock of Parent (the "Shares") in the amounts set forth opposite the
Stockholder's name and signature on the signature page hereof.
C. WHEREAS, as an inducement and a condition to entering into the Merger
Agreement, the Company desires that the Stockholder agree, and the Stockholder
is willing to agree, to enter into this Stockholder Agreement.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, hereby agree as
follows:
1. Certain Definitions. In addition to the terms defined elsewhere
herein, capitalized terms used and not defined herein have the respective
meanings ascribed to them in the Merger Agreement. For purposes of this
Stockholder Agreement:
(a) "Affiliate" means, as to any specified Person, (i) any stockholder,
equity holder, officer, or director of such Person and their family members or
(ii) any other Person which, directly or indirectly, controls, is controlled by,
employed by or is under common control with, any of the foregoing. For the
purposes of this definition, "control" means the possession of the power to
direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities, by contract or otherwise.
(b) "Beneficially Own" or "Beneficial Ownership" with respect to any
securities means having "beneficial ownership" of such securities as determined
pursuant to Rule 13d-3 under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), including pursuant to any agreement, arrangement or
understanding, whether or not in writing. Without duplicative counting of the
same securities by the same holder, securities Beneficially Owned by a Person
<PAGE>
shall include securities Beneficially Owned by all other Persons with whom such
Person would constitute a "group" as within the meanings of Section 13(d)(3) of
the Exchange Act.
(c) "Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint stock company, trust
(including any beneficiary thereof), unincorporated organization or government
or any agency or political subdivision thereof.
2. Disclosure. The Stockholder hereby agrees to permit the Company and
Parent to publish and disclose in the S-4 Registration Statement and the Proxy
Statement/Prospectus (including all documents and schedules filed with the SEC),
and any press release or other disclosure document which Parent reasonably
determines to be necessary or desirable in connection with the Merger and any
transactions related thereto, the Stockholder's identity and ownership of the
Shares and the nature of the Stockholder's commitments, arrangements and
understandings under this Stockholder Agreement.
3. Voting of Parent Stock. The Stockholder hereby agrees that, during the
period commencing on the date hereof and continuing until the first to occur of
(a) the Effective Time or (b) the termination of the Merger Agreement in
accordance with its terms (the "Termination Date"), at any meeting of the
holders of the Shares, however called, or in connection with any written consent
of the holders of the Shares, he shall vote (or cause to be voted) the Shares
held of record or Beneficially Owned by the Stockholder, whether heretofore
owned or hereafter acquired: (i) in favor of approval of the Merger Agreement
and any actions required in furtherance thereof and hereof, including the
amendment of Parent's Certificate of Incorporation to increase the number of
authorized shares to allow for issuance of Shares by virtue of the Merger, (ii)
against any action or agreement that would result in a breach in any respect of
any covenant, representation or warranty, or any other obligation or agreement,
of Parent under the Merger Agreement or the Stockholder under this Stockholder
Agreement (after giving effect to any materiality or similar qualifications
contained therein) and (iii) except as otherwise agreed to in writing in advance
by the Company, against the following actions (other than the Merger and the
transactions contemplated by this Stockholder Agreement and the Merger
Agreement): (A) any extraordinary corporate transaction, such as a merger,
consolidation or other business combination involving Parent, (B) a sale, lease
or transfer of a material amount of assets of Parent, or a reorganization,
recapitalization, dissolution or liquidation of Parent; (C)(1) any change in a
majority of the individuals who constitute Parent's Board of Directors; (2) any
change in the present capitalization of Parent or any amendment of Parent's
Certificate of Incorporation or By-Laws; (3) any material change in Parent's
corporation structure or business; or (4) any other action which, in the case of
each of the matters referred to in clauses (C)(1), (2) or (3), is intended, or
could reasonably be expected, to impede, interfere with, delay, postpone, or
materially and adversely affect the Merger and the transactions contemplated by
this Stockholder Agreement and the Merger Agreement. The Stockholder agrees
that he will not enter into any agreement or understanding with any Person the
effect of which would be inconsistent with or violative of any provision
contained in this Section 3. Notwithstanding the foregoing, nothing in this
Section 3 shall require the Stockholder to exercise any options with respect to
Parent Shares.
<PAGE>
4. Grant of Proxy; Appointment of Proxy. (a) The Stockholder hereby
irrevocably grants to, and appoints, the Board of Directors of the Company, the
Stockholder's proxy and attorney-in-fact (with full power of substitution), for
and in the name, place and stead of the Stockholder, to vote the Stockholder's
Shares, or grant a consent or approval in respect of such Shares as set forth in
Section 3 hereof. The Stockholder shall have no claim against such proxy and
attorney-in-fact, for any action taken, decision made or instruction given by
such proxy and attorney-in-fact in accordance with this Stockholder Agreement.
(b) The Stockholder understands and acknowledges that the Company is
entering into the Merger Agreement in reliance upon such irrevocable proxy. The
Stockholder hereby affirms that the irrevocable proxy set forth in this Section
4 is given to secure the performance of the duties of the Stockholder under this
Stockholder Agreement. The Stockholder hereby affirms that the irrevocable proxy
is coupled with an interest and may under no circumstances be revoked. The
Stockholder hereby ratifies and confirms that such irrevocable proxy may
lawfully do or cause to be done by virtue hereof.
5. Covenants, Representations and Warranties of Stockholder. The
Stockholder hereby represents and warrants to, and agrees with, the Company as
follows:
(a) Ownership of Shares. The Stockholder is the sole record and Beneficial
Owner of the number of Shares opposite the Stockholder's name on the signature
page hereof. On the date hereof, the Shares set forth opposite the
Stockholder's name on the signature page hereof constitute all of the Shares
owned of record or Beneficially Owned by the Stockholder or to which the
Stockholder has voting power by proxy, voting agreement, voting trust or other
similar instrument. The Stockholder has sole voting power and sole power to
issue instructions with respect to the matters set forth in Section 3 hereof,
sole power of disposition, sole power of conversion, sole power to demand
appraisal rights and sole power to agree to all of the matters set forth in this
Stockholder Agreement, in each case with respect to all of the Shares set forth
opposite the Stockholder's name on the signature page hereof, with no
limitations, qualifications or restrictions on such rights, subject to
applicable securities laws, and the terms of this Stockholder Agreement.
(b) Authorization. The Stockholder has the legal capacity, power and
authority to enter into and perform all of the Stockholder's obligations under
this Stockholder Agreement. The execution, delivery and performance of this
Stockholder Agreement by the Stockholder will not violate any other agreement to
which the Stockholder is a party including, without limitation, any voting
agreement, stockholders agreement, voting trust, trust or similar agreement.
This Stockholder Agreement has been duly and validly executed and delivered by
the Stockholder and constitutes a valid and binding agreement enforceable
against the Stockholder in accordance with its terms. There is no beneficiary
or holder of a voting trust certificate or other interest of any trust of which
the Stockholder is a trustee whose consent is required for the execution and
delivery of this Stockholder Agreement or the consummation by the Stockholder of
the transactions contemplated hereby. If the Stockholder is married and the
Stockholder's Shares constitute community property, this Stockholder Agreement
has been duly authorized, executed and delivered by, and constitutes a valid and
binding agreement of, the Stockholder's spouse, enforceable against such person
is accordance with its terms.
<PAGE>
(c) No Conflicts. No filing with, and no permit, authorization, consent or
approval of, any state or federal public body or authority is necessary for the
execution of this Stockholder Agreement by the Stockholder and the consummation
by the Stockholder of the transactions contemplated hereby and (ii) none of the
execution and delivery of this Stockholder Agreement by the Stockholder, the
consummation by the Stockholder of the transactions contemplated hereby or
compliance by the Stockholder with any of the provisions hereof shall (A)
conflict with or result in any breach of the organizational documents of the
Stockholder (if applicable), (B) result in a violation or breach of, or
constitute (with or without notice or lapse of time or both) a default (or give
rise to any third party right of termination, cancellation, material
modification or acceleration) under any of the terms, conditions or provisions
of any note, bond, mortgage, indenture, license, contract, commitment,
arrangement, understanding, agreement or other instrument or obligation of any
kind to which the Stockholder is a party or by which the Stockholder or any of
its properties or assets may be bound, or (C) violate any order, writ
injunction, decree, judgment, order, statute, rule or regulation applicable to
the Stockholder or any of its properties or assets.
(d) No Encumbrances. Except as applicable in connection with the
transactions contemplated by Section 3 and 4 hereof, the Stockholder's Shares at
all times during the term hereof will be Beneficially Owned by the Stockholder,
free and clear of all liens, claims, security interests, proxies, voting trusts
or agreements, understandings or arrangements or any other encumbrances
whatsoever.
(e) No Solicitation. The Stockholder agrees not to take any action
inconsistent with or in violation of Section 6.2 of the Merger Agreement.
(f) Restriction on Transfer, Proxies and Non-Interference. The Stockholder
shall not, directly or indirectly (i) except as contemplated by the Merger
Agreement, offer for sale, sell, transfer, tender, pledge, encumber, assign or
otherwise dispose of, or enter into any contract, option or other arrangement or
understanding with respect to or consent to the offer for sale, sale, transfer,
tender, pledge, encumbrance, assignment or other disposition of, any or all of
the Stockholder's Shares or any interest therein, (ii) except as contemplated by
this Stockholder Agreement, grant any proxies or powers of attorney, deposit any
Shares into a voting trust or enter into a voting agreement with respect to the
Shares, or (iii) take any action that would make any representation or warranty
of the Stockholder contained herein untrue or incorrect or have the effect of
preventing or disabling the Stockholder from performing the Stockholder's
obligations under this Stockholder Agreement.
(g) Reliance by the Company. The Stockholder understands and acknowledges
that the Company is entering into the Merger Agreement in reliance upon the
Stockholder's execution and delivery of this Stockholder Agreement.
6. Stop Transfer Legend.
(a) The Stockholder agrees and covenants to the Company that the
Stockholder shall
<PAGE>
not request that Parent register the transfer (book-entry or otherwise) of any
certificate or uncertificated interest representing any of the Stockholder's
Shares, unless such transfer is made in compliance with this Stockholder
Agreement.
(b) Without limiting the covenants set forth in paragraph (a) above, in the
event of a stock dividend or distribution, or any change in Shares by reason of
any stock dividend, split-up, recapitalization, combination, exchange of shares
or the like, other than pursuant to the Merger, the term "Shares" shall be
deemed to refer to and include the Shares into which or for which any or all of
the Shares may be changed or exchanged and appropriate adjustments shall be made
to the terms and provisions of this Stockholder Agreement.
7. Further Assurances. From time to time, at the Company's request and
without further consideration, the Stockholder shall execute and deliver such
additional documents and take all such further lawful action as may be necessary
or desirable to consummate and make effective, in the most expeditious manner
practicable, the transactions contemplated by this Stockholder Agreement.
8. Stockholder Capacity. If the Stockholder is or becomes during the term
hereof a director or an officer of Parent, the Stockholder makes no agreement or
understanding herein in his capacity as such director or officer. The
Stockholder signs solely in his capacity as the record and Beneficial Owner of
the Stockholder's Shares.
9. Termination. Except as otherwise provided herein, the covenants and
agreements contained herein with respect to the Shares shall terminate upon the
earlier of (a) the Termination Date or (b) the Effective Time.
10. Miscellaneous.
(a) Entire Agreement. This Stockholder Agreement constitute the entire
agreement among the parties with respect to the subject matter hereof and
supersede all other prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter hereof.
(b) Certain Events. Subject to Section 5(f) hereof, the Stockholder agrees
that this Stockholder Agreement and the obligations hereunder shall attach to
the Stockholder's Shares and shall be binding upon any Person to which legal or
Beneficial Ownership of such Shares shall pass, whether by operation of law or
otherwise, including without limitation, the Stockholder's heirs, guardians,
administrators or successors. Notwithstanding any such transfer of Shares, the
transferor shall remain liable for the performance of all obligations under this
Stockholder Agreement.
(c) Assignment. This Stockholder Agreement shall not be assigned by
operation of law or otherwise without the prior written consent of the other
party hereto, provided that the Company may assign, in its sole discretion, its
rights and obligations hereunder to any direct or indirect wholly owned
subsidiary of the Company, but no such assignment shall relieve the
<PAGE>
Company of its obligations hereunder if such assignee does not perform such
obligations.
(d) Amendment and Modification. This Stockholder Agreement may not be
amended, changed, supplemented, waived or otherwise modified or terminated,
except upon the execution and delivery of a written agreement executed by the
parties hereto.
(e) Notices. Any notice or other communication required or which may be
given hereunder shall be in writing and delivered (i) personally, (ii) via
telecopy, (iii) via overnight courier (providing proof of delivery) or (iv) via
registered or certified mail (return receipt requested). Such notice shall be
deemed to be given, dated and received (i) when so delivered personally, via
telecopy upon confirmation, or via overnight courier upon actual delivery or
(ii) [five] days after the date of mailing, if mailed by registered or certified
mail. Any notice pursuant to this section shall be delivered as follows:
If to the Stockholder to the address set forth for the Stockholder on the
signature page to this Stockholder Agreement.
If to the Company:
USWeb Corporation
410 Townsend Street
San Francisco, CA 94107
Attn: Chief Executive Officer
with a copy to:
Wilson Sonsini Goodrich & Rosati
650 Page Mill Road
Palo Alto, CA 94304
Attn: Mark E. Bonham, Esq.
Steve L. Camahort, Esq.
(f) Severability. Whenever possible, each provision or portion of any
provision of this Stockholder Agreement will be interpreted in such a manner as
to be effective and valid under applicable law but if any provision or portion
of any provision of this Stockholder Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or portion of any provision of this Stockholder Agreement
in such jurisdiction, and this Stockholder Agreement will be reformed, construed
and enforced in such jurisdiction as if such invalid, illegal or unenforceable
provision or portion of any provision had never been contained herein.
(g) Specific Performance. The parties hereto agree recognize and
acknowledge that a breach by it of any covenants or agreements contained in this
Stockholder Agreement will
<PAGE>
cause the other party to sustain damages for which it would not have an adequate
remedy at law for money damages, and therefore each of the parties hereto agrees
that in the event of any such breach the aggrieved party shall be entitled to
the remedy of specific performance of such covenants and agreements and
injunctive and other equitable relief in addition to any other remedy to which
it may be entitled, at law or in equity.
(h) Remedies Cumulative. All rights, powers and remedies provided under
this Stockholder Agreement or otherwise available in respect hereof at law or in
equity shall be cumulative and not alternative, and the exercise of any such
rights, powers or remedies by any party shall not preclude the simultaneous or
later exercise of any other such right, power or remedy by such party.
(i) No Waiver. The failure of any party hereto to exercise any right,
power or remedy provided under this Stockholder Agreement or otherwise available
in respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof, will not constitute a waiver by such
party of its right to exercise any such or other right, power or remedy or to
demand such compliance.
(j) No Third Party Beneficiaries. This Merger Agreement is not intended to
confer upon any person other than the parties hereto any rights or remedies
hereunder.
(k) Governing Law. This Stockholder Agreement will be governed and
construed in accordance with the laws of the State of Delaware, without giving
effect to the principles of conflict of laws thereof.
(l) WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES ANY RIGHT TO A
TRIAL BY JURY IN CONNECTION WITH ANY ACTION, SUIT OR PROCEEDING IN CONNECTION
WITH THIS STOCKHOLDER AGREEMENT.
(m) Description Headings. The description headings used herein are for
convenience of reference only and are not intended to be part of or to affect
the meaning or interpretation of this Stockholder Agreement.
(n) Counterparts. This Merger Agreement may be executed in counterparts,
each of which will be considered one and the same Stockholder Agreement and will
become effective when such counterparts have been signed by each of the parties
and delivered to the other parties, it being understood that all parties need
not sign the same counterpart.
(o) Recovery of Attorney's Fees. In the event of any litigation between the
parties relating to this Stockholder Agreement, the prevailing party shall be
entitled to recover its reasonable attorney's fees and costs (including court
costs) from the non-prevailing party, provided that if both parties prevail in
part, the reasonable attorney's fees and costs shall be awarded by the court in
such a manner as it deems equitable to reflect the relative amounts and merits
of the parties' claims.
<PAGE>
IN WITNESS WHEREOF, the Company and the Stockholder have caused this
Stockholder Agreement to be duly executed as of the day and year first above
written.
Company:
By: /s/ Carolyn V. Aver
---------------------------
Name: Carolyn V. Aver
Title: Executive Vice President and
Chief Financial Officer
Stockholder:
-----------
By: /s/ Robert Bernard
--------------------------------
Name: Robert Bernard
------------------------------
Number of Existing Shares: 12,808,535
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Address:
311 South Wacker Drive, Suite 3500
Chicago, IL 60606
