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EXHIBIT 2.3
CONTRIBUTION AGREEMENT
THIS CONTRIBUTION AGREEMENT (this "Agreement") is entered into and is
effective as of March 31, 2000, by and between Avistar Systems Corporation, a
Delaware corporation ("Avistar"), Collaboration Properties, Inc., a Nevada
corporation ("Collaboration") and the holders of capital stock of Collaboration
listed on the signature page hereto (collectively, the "Holders" and
individually, a "Holder"), with reference to the following facts:
A. WHEREAS Collaboration and UBS USA, Inc. ("UBS"), a Holder, holds
325,129 shares of Collaboration's Series A-1 Preferred Stock and
174,186 shares of Collaboration's Series A-2 Preferred Stock,
which represents all issued and outstanding shares of
Collaboration's Preferred Stock;
B. WHEREAS the Holders, other than UBS, hold all of the Common Stock
of Collaboration;
C. WHEREAS the parties intend that all shares of capital stock of
Collaboration be wholly owned by Avistar;
D. WHEREAS each of the parties is a beneficial owner of capital
stock or options to purchase capital stock of Avistar; and
E. WHEREAS for the consideration of each other Holder's contribution
to capital of Avistar, each Holder desires to surrender to
Avistar such Holder's interest in or right to acquire the capital
stock of Collaboration;
NOW THEREFORE, in consideration of the promises and the mutual covenants
and conditions herein, the parties hereby agree as follows:
1. CANCELLATION OF INTEREST IN COLLABORATION CAPITAL STOCK. The execution of
this Agreement shall act as a notice from each of the Holders to Avistar to
cause each Holder's interest in the capital stock of Collaboration to be
transferred without further consideration to Avistar and the value of such
interest in the capital stock of Collaboration shall be a contribution to
stockholders' equity of Avistar. As a result of the contribution, Avistar shall
be the sole holder of all interests in and rights to acquire the capital stock
of Collaboration. To evidence such transfer, each Holder shall execute the
assignment separate from certificate in the form attached hereto as Exhibit A.
2. STOCKHOLDER RECORDS. On the effective date of this Agreement, Collaboration
will immediately cause its stockholder register to reflect the transfer of each
Holder's interest to Avistar, and Avistar shall cause its books and records,
including its financial statements, to reflect the contribution of the
Collaboration capital stock to Avistar as a additional paid in capital from the
Holder.
3. EXTINGUISHMENT OF RIGHTS. On the effective date of this Agreement, each
Holder will be deemed to have relinquished all of such Holder's rights in the
Collaboration capital stock or to purchase any Collaboration capital stock and
shall have no further right, title or interest in such.
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4. TERMINATION OF SERIES A AGREEMENTS. Collaboration and UBS are parties to each
of the agreements dated as of December 9, 1999 entitled the Series A Stock
Purchase Agreement and the Registration and Information Rights Agreement
(collectively, the "Series A Agreements"). On the effective date of this
Agreement, each of the Holders and Collaboration agree to terminate in their
entirety the Series A Agreements and further agree that none of the parties to
such agreement shall have any further rights or obligations thereunder.
5. TERMINATION OF SHAREHOLDER VOTING AGREEMENT. The Gerald J. Burnett and
Marjorie J. Burnett Revocable Trust, the Heinrichs Revocable Trust and William
L. Campbell (collectively, the "Common Holders") and Collaboration are parties
to a Shareholder Voting Agreement dates as of May 13, 1998 (the "Shareholder
Voting Agreement"). On the effective date of this Agreement, each of the Common
Holders and Collaboration agree to terminate in its entirety the Shareholder
Voting Agreement and further agree that none of the parties to such agreement
shall have any further rights or obligations thereunder.
6. TERMINATION OF RESTRICTED STOCK PURCHASE AGREEMENTS.
(a) Each Holder other than UBS is subject to a Restricted Stock
Purchase Agreement, as amended, with Collaboration, pursuant to which each
Holder is subject to limitations on transfer and a right of first refusal in
favor of Collaboration. Collaboration waives any rights of first refusal and
notice requirements set forth in the Restricted Stock Purchase Agreements
between each Holder of Collaboration's Common Stock and Collaboration in
connection with the contribution of the shares to Avistar as set forth in this
Agreement.
(b) On the effective date of this Agreement, the Gerald J.
Burnett and Marjorie J. Burnett Revocable Trust and Collaboration each agree to
terminate in their entirety the Restricted Stock Purchase Agreement dated as of
December 30, 1997, as amended, and the Restricted Stock Purchase Agreement dated
as of May 18, 1998, as amended, and further agree that none of the parties to
such agreements shall have any further rights or obligations thereunder.
(c) On the effective date of this Agreement, the Heinrichs
Revocable Trust and Collaboration each agree to terminate in their entirety the
Restricted Stock Purchase Agreement dated as of December 30, 1997, as amended,
and the Restricted Stock Purchase Agreement dated as of May 18, 1998, as
amended, and further agree that none of the parties to such agreements shall
have any further rights or obligations thereunder.
(d) On the effective date of this Agreement, William L. Campbell
and Collaboration each agree to terminate in their entirety the Restricted Stock
Purchase Agreement dated as of December 30, 1997, as amended, and the Restricted
Stock Purchase Agreement dated as of May 18, 1998, as amended, and further agree
that none of the parties to such agreements shall have any further rights or
obligations thereunder.
(e) On the effective date of this Agreement, Lester F. Ludwig and
Collaboration each agree to terminate in their entirety the Restricted Stock
Purchase Agreement dated as of December 30, 1998, as amended, and further agree
that none of the parties to such agreements shall have any further rights or
obligations thereunder.
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7. REPRESENTATIONS OF THE HOLDERS AND AVISTAR.
a. Each Holder represents and warrants to Avistar, jointly and not
severally, that
(i) Ownership of Shares. Such Holder is the sole and lawful owner
of all right, title and interest in and to all of the claims related to the
shares of Collaboration capital stock transferred pursuant to this Agreement and
that such Holder has not heretofore voluntarily, by operation of law or
otherwise, assigned or transferred or purported to assign or transfer to any
person whomsoever any such claim or asset.
(ii) Authorization. This Agreement when executed and delivered by
such Holder will constitute a valid and legally binding obligation of such
Holder, enforceable in accordance with its terms subject to bankruptcy,
insolvency, fraudulent conveyance, moratorium or other laws affecting creditors'
rights generally and to equitable principles of general applicability.
b. Avistar hereby represents and warrants to each Holder with respect to
the contribution of such Holder's interest in the capital stock of Collaboration
to Avistar as follows:
(i) RULE 144. Avistar acknowledges that the capital stock of
Collaboration must be held indefinitely unless subsequently registered under the
Securities Act or an exemption from such registration is available. Avistar is
aware of the provisions of Rule 144 promulgated under the Securities Act which
permit limited resale of shares purchased in a private placement subject to the
satisfaction of certain conditions, including, among other things, the existence
of a public market for the shares, the availability of certain current public
information about each Holder, the resale occurring not less than one year after
a party has purchased and paid for the security to be sold, the sale being
effected through a "broker's transaction" or in transactions directly with a
"market maker" (as provided by Rule 144(f)) and the number of shares being sold
during any three-month period not exceeding specified limitations.
(ii) NO PUBLIC MARKET. Avistar understands that no public market
now exists for any of the Collaboration capital stock, that each Holder and
Collaboration have made no assurances that a public market will ever exist for
the capital stock of Collaboration and that, even if such a public market exists
at some future time, Avistar may not then be satisfying the current public
information requirements of Rule 144.
(iii) AUTHORIZATION. This Agreement when executed and delivered
by Avistar will constitute a valid and legally binding obligation of Avistar,
enforceable in accordance with its terms subject to bankruptcy, insolvency,
fraudulent conveyance, moratorium or other laws affecting creditors' rights
generally and to equitable principles of general applicability.
c. Collaboration hereby represents and warrants to each Holder with
respect to the contribution of such Holder's interest in the capital stock of
Collaboration to Avistar that this Agreement when executed and delivered by
Collaboration will constitute a valid and legally binding obligation of
Collaboration, enforceable in accordance with its terms subject to bankruptcy,
insolvency, fraudulent conveyance, moratorium or other laws affecting creditors'
rights generally and to equitable principles of general applicability.
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6. MISCELLANEOUS.
a. SUCCESSORS. This Agreement shall bind and inure to the benefit of the
parties hereto and its respective successors and assigns.
b. GOVERNING LAW. Any action or proceeding to interpret, construe or
enforce this Agreement may be instituted and prosecuted only in a state court
located in San Mateo county, California, or if requisite jurisdiction exists, in
the United States District Court for Northern California. This Agreement shall
be governed by and interpreted and construed in accordance with the laws of the
State of California.
c. ENTIRE AGREEMENT. This Agreement and the Exhibit A hereto constitute
the entire agreement of the parties and supersede all prior or contemporaneous
agreements, communications, negotiations and understandings, written or oral,
between the parties, regarding the subject matter hereof and thereof.
d. WAIVER, MODIFICATION, OR AMENDMENT. No waiver, modification or
amendment of this Agreement shall be enforceable unless in writing and executed
by the party against whom such waiver, modification or amendment is claimed.
e. SEVERABILITY. If any provision of this Agreement is held to be
illegal, invalid or unenforceable, the legality, validity and enforceability of
the remaining provisions shall not be affected or impaired.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as the day and the year first
set forth above.
COLLABORATION PROPERTIES, INC.
a Nevada corporation
By:
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William Campbell
President and Chief Executive Officer
AVISTAR SYSTEMS CORPORATION
a Delaware corporation
By:
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Gerald J. Burnett
Chief Executive Officer
"HOLDERS"
UBS USA, Inc.
By:
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Robert Mills
Managing Director
LESTER F. LUDWIG
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GERALD J. BURNETT AND MARJORIE J. BURNETT
REVOCABLE TRUST
By:
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Gerald J. Burnett
Trustee
HEINRICHS REVOCABLE TRUST
By:
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R. Stephen Heinrichs
Trustee
WILLIAM L. CAMPBELL
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EXHIBIT A
ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED, I, _______________, hereby sell, assign and transfer to
AVISTAR SYSTEMS CORPORATION, A DELAWARE CORPORATION, ____________________
(_________) shares of the __________ Stock of Collaboration Properties, Inc., a
Nevada corporation, (the "Company") standing in my name on the books of said
corporation represented by Stock Certificate Nos. __________, __________, and
__________ delivered herewith, and do hereby irrevocably constitute and appoint
Wilson Sonsini Goodrich & Rosati to transfer the said stock on the books of the
within named corporation with full power of substitution in the premises.
Dated:
Signature:
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