<PAGE>
THIS DOCUMENT IS A COPY OF THE 8K FILED ON JULY 18, 1995 PURSUANT TO
A RULE 201 TEMPORARY HARDSHIP EXEMPTION
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities and Exchange Act of 1934
Date of Report June 30, 1995
Auto-trol Technology Corporation
(Exact name of registrant as specified in its charter)
Colorado 0-9247 84-0515221
(State of Incorporation) (Commission (IRS Employer of
File Number) Identification No.)
12500 North Washington, Denver, Colorado 80241-4919
(Address of Principal executive offices)
Area code (303) 452-4919
(Registrant's Telephone Number including area code)
<PAGE>
AUTO-TROL TECHNOLOGY CORPORATION
REPORT ON FORM 8-K
FOR THE QUARTER ENDED JUNE 30, 1995
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ITEM 1 Changes in Control of Registrant 1
ITEM 2 Acquisition or Disposition of Assets 1
ITEM 3 Bankruptcy or Receivership 1
ITEM 4 Changes in Registrant's Certifying Accountant 1
ITEM 5 Other Events 1
ITEM 6 Resignations of Registrant's Directors 1
ITEM 7
- ------
(a)(1) Unaudited Financial Statements of Centra 2000, Inc. 2-4
(a)(4) Notes to financial statements 5
(b)(1) Proforma Financial Information 6-7
(c) Exhibits 8
ITEM 8 Change in Fiscal Year 8
Signatures 9
</TABLE>
<PAGE>
AUTO-TROL TECHNOLOGY CORPORATION
ITEM 1 CHANGES IN CONTROL OF REGISTRANT
None
ITEM 2 ACQUISITION OR DISPOSITION OF ASSETS
On June 30, 1995, AT Development Inc., a wholly-owned subsidiary of
Auto-trol Technology Corporation, acquired Metaware Inc., a Texas corporation
doing business as Centra 2000, Inc. Auto-trol Technology has maintained
exclusive distribution rights to the CENTRA 2000(TM) product line. Management
believes the acquisition of Centra 2000, Inc., by AT Development Inc., will
allow for synergies in new product development, in addition to integration with
existing Auto-trol Technology Corporation products.
The acquisition qualifies as a related-party transaction as defined by
Statement of Financial Accounting Standards No. 57, Related Party Disclosures
(SFAS 57). Auto-trol Technology Corporation's President and Chairman of the
Board, Howard B. Hillman, then officially owns through various affiliates the
majority of the outstanding shares of capital stock of both Auto-trol Technology
Corporation and Centra 2000, Inc.
All Centra 2000 Inc. shareholders at 6/30/95 received four shares of
Auto-trol Technology Corporation common stock for each share of Centra 2000,
Inc. stock held. The shares of Auto-trol Technology Corporation stock exchanged
were not registered under Federal or State securities laws and are subject to
restrictions on resale. Additional consideration for existing shareholders
consists of a bonus in each of the next three years which is contingent upon
meeting a development schedule and market acceptance of the product. The effects
of applying purchase accounting to the minority shareholders interest in Centra
2000, Inc. were not material. Accordingly, the acquisition has been accounted
for as a pooling of interest. The total assets of Centra 2000 Inc. consist of
cash, office furniture and computer equipment, and intangible assets. The office
furniture and computer equipment included in the acquisition will continue to be
used at the subsidiary in the development of software products.
ITEM 3 BANKRUPTCY OR RECEIVERSHIP
None
ITEM 4 CHANGES IN REGISTRANT'S CERTIFYING ACCOUNTANT
None
ITEM 5 OTHER EVENTS
None
ITEM 6 RESIGNATION OF REGISTRANT'S DIRECTORS
None
1
<PAGE>
CENTRA 2000, INC.
BALANCE SHEET
<TABLE>
<CAPTION>
ASSETS
June 30, December 31,
1995 1994
(unaudited) (unaudited)
------------- -------------
<S> <C> <C>
Current assets:
Cash and cash equivalents $ 11,533 $ 274,926
Employee note receivable 15,130 17,380
Employee note receivable reserve (10,513)
Other receivable 37,064 -
------------- -------------
Total current assets 53,214 292,306
------------- -------------
Property and equipment
Equipment 143,656 95,719
Furniture and fixtures 15,636 15,636
------------- -------------
159,292 111,355
Less accumulated depreciation (53,300) (32,759)
------------- -------------
105,992 78,596
Other assets, net of accumulated
amortization of $9,201 and $6,957 13,237 15,481
------------- -------------
Total assets $ 172,443 $ 386,383
============= =============
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Accounts payable 122,440 -
Accrued liabilities 7,732 787
------------- -------------
Total current liabilities 130,172 787
------------- -------------
Long-term debt 300,000 300,000
------------- -------------
Total liabilities 430,172 300,787
------------- -------------
Shareholders equity:
Common stock, no par value;
1,000,000 shares authorized;
305,740 shares issued (including
treasury shares) and 1,000 1,000
Additional paid in capital 1,381,940 1,245,000
Accumulated deficit (1,634,508) (1,160,404)
Treasury stock, 2,738 common
shares at market value (6,161) -
------------- -------------
Total shareholders' equity $ (257,729) $ 85,596
------------- -------------
Total liabilities and shareholders'
equity $ 172,443 $ 386,383
============= =============
</TABLE>
2
<PAGE>
CENTRA 2000, INC.
STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
Six Months Ended Year ended
6/30/95 12/31/94
(unaudited) (unaudited)
---------------- -----------
<S> <C> <C>
Revenues:
Royalty $ 187,034 $ 99,847
Service 51,496 94,707
---------------- -----------
$ 238,530 $ 194,554
Cost and expenses:
Cost of sales 40,401 220,842
Research and product development 613,662 710,045
General and administrative 27,696 48,581
---------------- -----------
681,759 979,468
---------------- -----------
Loss from operations (443,229) (784,914)
Interest expense 30,875 --
---------------- -----------
Loss before income taxes (474,104) (784,914)
Income tax benefit -- --
---------------- -----------
Net loss $(474,104) $(784,914)
================ ===========
Loss per share $1.59 $12.24
Weighted average number of shares 297,619 64,105
outstanding
</TABLE>
3
<PAGE>
CENTRA 2000, INC.
STATEMENTS OF CASH FLOW
<TABLE>
<CAPTION>
Six Months
Ended Year ended
6/30/95 12/31/94
(unaudited) (unaudited)
----------- -----------
<S> <C> <C>
Cash flow from operating activities:
Net loss $(474,104) $(784,914)
Adjustments to reconcile net loss to
net cash used by operating activities:
Depreciation and amortization 22,785 30,574
Provision for note receivable 10,513 --
Decrease in prepaid assets -- 552
(Increase) in other receivables (37,064)
Increase (decrease) accounts
payable 122,440 --
Increase (decrease) other
liabilities 6,945 (806)
----------- -----------
Net cash used by operating activities $(348,485) $(754,594)
Cash flow from investing activities:
Capital expenditures (47,937) (73,065)
----------- -----------
Net cash used by investing activities (47,937) (73,065)
Cash flow from financing activities
Proceeds from issuance of note
payable, related-party -- 300,000
Proceeds from issuance of common
stock 136,940 356,000
Issuance of note receivable -- (17,380)
Proceeds from note receivable 2,250 250,000
Purchase of treasury stock (6,161) --
----------- -----------
Net cash provided from financing
activities 133,029 888,620
----------- -----------
Net increase (decrease) in cash and
cash equivalents (263,393) 60,961
----------- -----------
Cash and cash equivalents at beginning
of year 274,926 213,965
Cash and cash equivalents at the end of
the year $ 11,533 $ 274,926
=========== ===========
Supplemental disclosure of cash flow
information:
Cash paid during the year for:
Interest, related-party portion
$24,375 $ 24,375
Income taxes -- --
</TABLE>
4
<PAGE>
CENTRA 2000, INC.
NOTES TO FINANCIAL STATEMENTS
June 30, 1995, and December 31, 1995
1. Summary of Significant Accounting Policies:
-------------------------------------------
Centra 2000, Inc. develops product data management software to be
integrated with existing software products used in various industries.
Cash and cash equivalents consist of currency on hand.
Properties, facilities and equipment are recorded at cost and depreciated
or amortized using accelerated depreciation methods over the estimated
useful life of the respective assets. Maintenance and repairs are charged
to opera tions.
The estimated useful lives of facilities and equipment used in determining
depreciation and amortization is as follows:
Machinery and equipment 5 years
Furniture and fixtures 7 years
Revenue is derived from royalties received from sales of the CENTRA
2000(TM) product line by a related party which maintains exclusive
distribution rights to the CENTRA 2000 product line. Consulting revenue is
recognized as the services are performed.
The Company does not capitalize its research and development costs
according to Statement of Financial Accounting Standards No. 86, Accounting
for the Costs of Computer Software to be Sold, Leased or Otherwise Marketed
(SFAS 86).
The company has elected to amortize its startup and organizational costs
over sixty months.
Loss per share is computed on the basis of the weighted average number of
shares outstanding and adjusted, if applicable, for common stock equivalent
shares. At June 30, 1995 and December 31, 1994, the weighted average number
of shares outstanding included no weighted common stock equivalent shares
because their effect would be antidilutive.
2. Debt:
-----
Long-term debt consists of $300,000 related-party debt at 10%. Payment of
debt is based on variable terms which are dependent on royalty revenue
earned. All of the debt has been classified as long term until a reasonable
estimate of the current portion can be determined. Management believes the
entire debt will be repaid evenly over the next three fiscal years.
5
<PAGE>
PROFORMA BALANCE SHEET
Proforma balance sheet for Centra 2000 Inc. and Auto-trol Technology Corporation
to be filed by August 15, 1995.
6
<PAGE>
PROFORMA INCOME STATEMENT
Proforma statement of operations for Centra 2000 Inc. and Auto-trol Technology
Corporation to be filed by August 15, 1995.
7
<PAGE>
ITEM 7 EXHIBITS
A. Financial Data Schedule
B. Agreement and Plan of Merger and Reorganization
ITEM 8 CHANGE IN FISCAL YEAR
None
8
<PAGE>
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES EXCHANGE ACT OF 1934, THE
REGISTRANT HAS DULY CAUSED THIS REPORT TO BE SIGNED ON ITS BEHALF BY THE
UNDERSIGNED, THEREUNTO DULY AUTHORIZED.
<TABLE>
<CAPTION>
AUTO-TROL TECHNOLOGY CORPORATION
(Registrant)
<S> <C>
Date: July 14,1995 /s/HOWARD B. HILLMAN
---------------------------------
Howard B. Hillman,
President
Date: July 14, 1995 /s/DAVID C. O'BRIEN
---------------------------------
David C. O'Brien
Vice President, Finance
</TABLE>
9
<PAGE>
AGREEMENT AND PLAN OF MERGER
AND REORGANIZATION
DATED
JUNE 30, 1995
-------------
BY AND AMONG
AUTO-TROL TECHNOLOGY CORPORATION
"AUTO-TROL"
AT DEVELOPMENT, INC.
"SUBSIDIARY"
AND
METAWARE, INC.
D.B.A.
CENTRA 2000, INC.
"CENTRA"
Plan of Merger 1
<PAGE>
AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (this "Agreement") dated as of
June 30, 1995 by and among AUTO-TROL TECHNOLOGY CORPORATION, a Colorado
Corporation ("Auto-trol"), AT DEVELOPMENT, INC., a Colorado Corporation
("Subsidiary"), and METAWARE, INC., doing business as CENTRA 2000, INC., a Texas
Corporation ("Centra").
RECITALS
1. Auto-trol owns all of the outstanding capital stock of Subsidiary
("Subsidiary Shares").
2. The Boards of Directors of Centra, Subsidiary and Auto-trol deem the
merger of Centra with and into Subsidiary in accordance with the applicable laws
of Colorado and Texas (the "Merger") to be advisable and in the best interests
of their respective shareholders, and have, by resolutions duly adopted,
approved this Agreement and the Plan of Merger and Reorganization set forth
herein; the sole shareholder of Subsidiary, and the shareholders of Centra (the
"Centra Shareholders") have adopted resolutions to approve this Agreement and
Plan of Merger.
3. It is intended that the Merger qualify as a tax-free reorganization
pursuant to Section 368 (a) (1) (A) and Section 368 (a) (2) (D) of the Internal
Revenue Code of 1986, as amended (the "Code").
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein, Centra, Subsidiary and Auto-trol hereby agree as follows:
ARTICLE I
THE MERGER
1.01 Merger. On the Effective Date (as defined in Article II hereof), Centra
shall be merged into Subsidiary, which shall be (and is hereinafter sometimes
referred to as) the Surviving Corporation. The corporate existence of
Subsidiary with all its rights, privileges, power and franchises shall continue
unaffected and unimpaired by the Merger, and as the Surviving Corporation it
shall be governed by the laws of the State of Colorado and succeed to all
rights, privileges, powers, franchises, assets, liabilities and obligations of
Centra in accordance with the Colorado Corporation Code. The separate existence
and corporate organization of Centra shall cease to exist upon the Effective
Date, and thereupon Centra and Subsidiary shall be a single corporation. The
Board of Directors of the Surviving Corporation shall be comprised of three
members, including Susan Floyd, David O'Brien and Allyson Kissell. Susan Floyd
shall be appointed President of the Surviving Corporation, with all rights and
authority accorded to such office as set forth in the bylaws of the Surviving
Corporation.
1.02 Further Assurances. If, at any time after the Effective Date, the
Surviving Corporation shall consider or be advised that any further deeds,
assignments or assurances in law or any other things are necessary or desirable
to vest, perfect or confirm, of record or otherwise, in the Surviving
Corporation title to, and possession of any property or right of, Centra
acquired or to be acquired by reason of, or as a result of, the Merger, and
otherwise to carry out the purpose of this Agreement, Centra and its proper
officers and directors shall be deemed to have granted to the Surviving
Corporation an irrevocable power of attorney to execute and deliver all such
proper deeds, assignments and assurances in law and do all things necessary or
proper to vest, perfect or confirm title to and possession of such property or
rights in the Surviving Corporation and otherwise to carry out the purpose of
this Agreement. The proper officers and
Plan of Merger 2
<PAGE>
directors of the Surviving Corporation are fully authorized in the name of
Centra or otherwise to take any and all such action.
ARTICLE II
EFFECTIVE DATE
Following the execution of this Agreement, but no later than June 30, 1995, it
is contemplated that a meeting (the "Closing") will take place at which the
parties to this Agreement will exchange certificates, opinions, letters and
other documents and shall execute Articles of Merger in accordance with Section
7-7-104 of the Colorado Corporation Code and Article 5.04 of the Texas Business
Corporation Act (the "Articles of Merger"). Promptly after the Closing,
duplicate originals of the Articles of Merger shall be delivered for filing to
the Secretary of State of the State of Colorado and an original and three copies
shall be filed with the Secretary of State of the State of Texas. The Merger
shall become effective when the Articles of Merger filed with the Colorado
Secretary of State as of the time set forth in the Articles of Merger are
endorsed "Filed" and dated by said Secretary of State of Colorado. The date and
time when the Merger so becomes effective is referred to in this Agreement as
the "Effective Date".
ARTICLE III
ARTICLES OF INCORPORATION; BYLAWS
3.01 Articles of Incorporation. The Articles of Incorporation of Subsidiary,
as in effect immediately prior to the Effective Date, shall continue to be the
Articles of Incorporation of the Surviving Corporation until amended as provided
by law.
3.02 Bylaws. The Bylaws of Subsidiary, as in effect on the Effective Date,
shall continue to be the Bylaws of the Surviving Corporation, until altered,
amended or repealed in accordance with law, the Articles of Incorporation of the
Surviving Corporation, or said Bylaws.
ARTICLE IV
CONSIDERATION, OPTIONS, PAYMENTS
4.01 Conversion of Shares.
--------------------
(a) Each Subsidiary Share issued and outstanding at the Effective Date
shall continue unchanged as an issued and outstanding share of Common Stock,
$1.00 par value, of the Surviving Corporation.
(b) Auto-trol shall cause to be issued to the Centra Shareholders, the
shares of validly issued, fully paid and nonassessable voting Common Stock, $.01
par value, of Auto-trol ("Auto-trol Common Stock"), in the following quantities:
<TABLE>
<S> <C>
SUSAN FLOYD 143,440
JUDY CARRELL 71,512
JIM SHIRREFFS 71,512
TERRY MCGREGOR 15,076
DANN DANLEY 9,792
TINA SCHOPPE 2,000
STEVE SPRADLIN 2,400
VENHILL LTD PARTNERSHIP 896,276
</TABLE>
Plan of Merger 3
<PAGE>
All of the shares of Centra Common Stock, no par value ("Centra Common
Stock"), issued and outstanding as of the Effective Date, shall, by virtue of
the Merger, be converted into Auto-trol Common Stock in the quantities set forth
above. No fractional shares of Auto-trol Common Stock shall be issued.
Certificates for shares of Auto-trol Common Stock shall be issued in the name of
the registered holder of the surrendered certificate(s). The certificates for
Auto-trol Common Stock shall be restricted from trade for a period of three (3)
years from the date of their issuance and shall bear a restrictive legend as
follows:
"The shares represented by this Certificate have not been registered
under the Securities Act of 1933 ("the Act"), and are "restricted
securities" as that term is defined in Rule 144 under the Act. The
shares may not be offered for sale, sold or otherwise transferred except
pursuant to an effective registration statement under the Act, or
pursuant to an exemption from registration under that Act, the
availability of which is to be established to the satisfaction of the
Company."
Upon expiration of the three year restrictive period, and upon the written
request of a Centra Shareholder to Auto-trol, Auto-trol shall arrange, at its
expense, for an opinion of counsel for removal of the restrictive legend on the
stock certificate issued to such requesting Centra Shareholder. Should the
Centra Shareholder independently obtain an opinion of counsel, such opinion
shall be obtained at such Centra Shareholder's sole expense.
(c) Auto-trol agrees to include the shares of Auto-trol Common Stock
owned by Centra Shareholders or their transferees (the "Shares") in any
Registration Statement filed by Auto-trol at any time within three (3) years
from the Effective Date of the Merger. In connection with any such
registration, Auto-trol covenants and agrees as follows:
(i) If shares of Auto-trol Common Stock are proposed to be registered
under the Securities Act of 1933 ("the Act") during such time period, Auto-trol
will at such time give written notice to all holders of the Shares of such
event. Upon the written request of a holder or holders of the Shares, which
shall be provided within fifteen (15) days after receipt of any such notice,
Auto-trol will cause all such Shares to be registered under the Act.
(ii) Auto-trol shall use its best efforts to have any post-effective
amendment or new registration statement declared effective at the earliest
possible time for a period of nine (9) months, and shall furnish such number of
prospectuses as shall be reasonably requested.
(iii) Auto-trol shall pay all costs, fees and expenses in connection
with all such post-effective amendments or new registration statements
including, without limitation, Auto-trol's legal and accounting fees, printing
expenses, blue sky fees and expenses, except that Auto-trol shall not pay for
any of the following costs and expenses: (a) underwriting discounts and
commissions allocable to Shares; (b) state transfer taxes; (c) brokerage
commissions, (d) fees and expenses of counsel and accountants for the holders
of Shares.
(iv) Auto-trol will take all necessary action which may be required
in qualifying or registering the Shares including any Registration Statement or
post-effective amendment or new registration statement for offering and sale
under the securities or blue sky laws of such states as are requested by the
holders of such Shares, provided that Auto-trol shall not be obligated to
execute or file any general consent to service or process or to qualify as a
foreign corporation to do business under the laws of any such jurisdiction.
(v) Auto-trol shall indemnify and hold harmless each Centra
Shareholder owning Shares from and against any and all losses, claims, damages,
and liabilities caused by any untrue statement or alleged untrue statement of a
material fact, contained in any post-effective amendment or new registration, or
any supplemental prospectus required to be filed or furnished by the Act; or
caused by any omission or alleged omission in such registration statement;
provided, however, that this agreement to
Plan of Merger 4
<PAGE>
indemnify with respect to any prospectus which shall be subsequently amended
prior to the written confirmation of the sale of any Shares by a Centra
Shareholder shall not inure to the benefit of the selling Centra Shareholder
from whom the person asserting any such losses, claims, damages or liabilities
purchased such Shares, if such selling Centra Shareholder failed to send or
cause his or her representative to send or give a copy of the amended prospectus
to such person, at or prior to the written confirmation of the sale of such
Shares, and further provided that such amended prospectus did not contain any
untrue statement or alleged untrue statement or omission or alleged omission
giving rise to such cause, claim, damage, or liability.
(d) As soon as practicable after the Effective Date, each holder of a
certificate or certificates that immediately prior to the Effective Date
represented the outstanding shares of Centra Common Stock, upon surrender to the
President of Centra, shall be entitled to receive a certificate, duly endorsed,
representing the number of whole shares of Auto-trol Common Stock into which the
shares of Centra Common Stock so surrendered shall have been converted as
provided in Section 4.01 (b) hereof.
(e) Each share, if any, of Centra Common Stock held in Centra's
treasury at the Effective Date shall automatically be canceled and shall not be
converted into Auto-trol Common Stock.
4.02 Additional Consideration Due to an inability of the parties to place a
value on the assets of Centra, the Centra Shareholders shall be entitled to
receive Additional Consideration as follows. In addition to the Auto-trol Stock
received by each Centra Shareholder, the Centra Shareholders shall be entitled
to receive cash payments, from Auto-trol. Such consideration shall be
calculated in the aggregate as nine and one half percent (9 1/2%) of the
Surviving Corporation's revenue received from Auto-trol in the form of royalties
(which shall be the equivalent of 4.75% of the total "as sold" revenue for the
CENTRA 2000 product) for fiscal years 1996, 1997, and 1998 starting October 1
and ending September 30 each year. Royalties shall be paid by Auto-trol to the
Surviving Corporation in an amount of fifty percent (50%) of the "as sold"
revenue of the CENTRA 2000 product. A fourth fiscal year Additional
Consideration payment for year 1999 shall be extended to the Centra
Shareholders, provided that the product enhancements to CENTRA 2000, as set
forth in the development plan described in Schedule N, are substantially met on
or before the end of calendar year 1998. Notwithstanding the foregoing, the
right of Centra Shareholders to receive Additional Consideration in the form of
cash shall be limited to an amount equal to the fair market value, as of the
Effective date, of the Auto-trol voting Common Stock received by each such
Centra Shareholder pursuant to the exchange provided for in Section 4.01(b) of
this Agreement. To the extent any Centra Shareholder would otherwise be
entitled to Additional Consideration in excess of such amount ("Excess
Additional Consideration"), such Excess Additional Consideration shall be made
in the form of one-half cash and one-half Auto-trol voting Common Stock, valued
at the fair market value of such stock as of the date such stock is issued to
said Centra Shareholder. It is understood that the ability of Centra and
Subsidiary to achieve the goals set forth in Schedule N is dependent on
Subsidiary being allowed a budget that will enable it to do so. Likewise, it is
understood that development priorities and needs will undoubtedly change over
time, such that the items contained in Schedule N on the Execution Date will
need to be changed. Therefore, it is the understanding of the parties that
Auto-trol will provide the Surviving Corporation a budget that bears a
reasonable and realistic relationship to the development plan contained in
Schedule N, as amended, together with the other goals the Surviving Corporation
is expected to meet, such that if there is a need to reduce the budget of the
Surviving Corporation below currently expected levels, there will be a
corresponding adjustment to the development plan contained in Schedule N, as
amended. These amendments to the development plan must be approved by Auto-trol
and by the natural person who, as of the Execution Date, owns the greatest
number of Centra Shares and is then an employee of Auto-trol or the Surviving
Corporation. The approval of Auto-trol to an amendment to the development plan
shall not be unreasonably withheld. Auto-trol owes Centra, and other
beneficiaries of this section 4.02, duties of utmost good faith and fair dealing
regarding payment of Additional Consideration. Such payment shall be payable
annually, on or before December 15 of each year and shall be distributed among
the Centra Shareholders in proportion to the number of Centra Shares each Centra
Shareholder surrenders pursuant to this Agreement, and shall be administered by
Auto-trol as the Centra Shareholders may agree is appropriate, in accordance
with an
Plan of Merger 5
<PAGE>
agreement between the Centra Shareholders to be entered into on or
before the time of the Closing. If Auto-trol transfers its rights to CENTRA
2000 during the period in which Additional Consideration payments are to be
made, or if Auto-trol merges the Surviving Corporation into Auto-trol or another
Auto-trol subsidiary, Auto-trol shall take the necessary steps to ensure that
the payments will continue to be made, either by the transferee or by Auto-trol.
The right to receive Additional Consideration hereunder may not be assigned.
The "CENTRA 2000 product" as used herein, shall include the CENTRA 2000 database
server and client software, including gold, silver and bronze client packages,
and/or any functional modules of the software, such as, but not limited to,
Workflow, which may be licensed separately, and any subsequent packaging of said
products, as well as any improvements, modifications and corrections made
thereto. Services performed for the customer, which may include but are not
limited to training, maintenance, software customization, installation,
implementation and consulting are not included in the definition of "CENTRA 2000
product."
"As sold" revenue as the term is used herein shall be limited to sales revenue
of CENTRA 2000 products only and shall not include revenues for Auto-trol or
third party products, training, consulting or other services.
4.03 Dissenters' Shares. Each Centra Shareholder who dissents from the
Merger shall be entitled to obtain payment at the fair market value of his or
her shares of Centra Common Stock as of the Closing date, and shall receive
payment therefor from the Surviving Corporation, and no shares of Auto-trol
Common Stock shall be issued to such dissenting Centra Shareholders pursuant to
Section 4.01(a); provided, however, that shares of Auto-trol Common Stock shall
be issued pursuant to the provisions of Section 4.01(a) with respect to shares
of Centra Common Stock held by a dissenting shareholder who subsequently
withdraws his or her demand for payment or otherwise fails to establish his or
her right to be paid the fair market value of his or her shares, in which events
such shares shall be deemed to be converted into shares of Auto-trol Common
Stock under Section 4.01(a). Shares of Centra Common Stock acquired by the
Surviving Corporation shall be canceled.
4.04 Centra Stock Options and Warrants. Upon the Effective Date, all
outstanding options, warrants and rights to acquire Centra Common Stock not
exercised or otherwise terminated prior to the Effective Date shall immediately
become extinguished and canceled.
4.05 Expenses of Reorganization. Each party hereto, and the shareholders
thereof, shall bear and be solely liable for their expenses with respect to this
transaction.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF CENTRA
Centra hereby represents and warrants, which representations and warranties
shall be true and correct as of the Closing as if expressly restated on the
Closing and shall survive the Closing, that:
5.01 Organization and Authority. Centra is a corporation duly organized,
validly existing and in good standing under the laws of the State of Texas and
has all corporate power and authority to carry on its business as now being
conducted and to own or lease and operate the assets and properties now owned or
leased and operated by it, and is duly qualified to do business and is in good
standing in the jurisdictions in which such qualification is required except for
jurisdictions in which failure to be so qualified or to be in good standing
could not subject Centra to any material liability or disability by reason of
such failure.
5.02 Capitalization. The total authorized capital stock of Centra consists
of one million (1,000,000) shares of Common Stock, no par value, of which
303,002 shares are issued and outstanding as of the date
Plan of Merger 6
<PAGE>
hereof. Except as set forth in this Section 5.02, there are no shares of Centra
Common Stock issued or outstanding, and, except as set forth on Schedule A,
there are no warrants, options, agreements, calls, rights, subscriptions,
convertible securities or other commitments of any kind obligating Centra,
contingently or otherwise, to issue shares of its capital stock or any other
securities.
5.03 Articles of Incorporation and Bylaws. Centra has delivered to Auto-trol
complete and accurate copies of the Articles of Incorporation of Centra, as in
effect on the date hereof, and complete and accurate copies of its Bylaws, as in
effect on the date hereof.
5.04 Authority Relative to this Agreement. Centra has the full corporate
power to enter into this Agreement and to carry out its obligations hereunder.
The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly and validly authorized by its
Board of Directors and the Centra Shareholders, and no other corporate acts or
proceedings on the part of Centra are necessary to authorize this Agreement or
the transactions contemplated hereby; and this Agreement constitutes a valid and
binding obligation of Centra. Neither the execution and delivery of this
Agreement nor the consummation of the transactions contemplated hereby nor
compliance by Centra with any of the provisions hereof will (i) violate, or
conflict with, or result in a breach of any provisions of, or constitute a
default (or an event which, with notice or lapse of time or both, would
constitute a default) under, or result in the termination of, or accelerate the
performance required by, or result in the creation of any lien, security
interest, charge or encumbrance upon any of the properties or assets of Centra
under any of the terms, conditions or provisions of the Articles of
Incorporation or Bylaws of Centra or any note, bond, mortgage, indenture, deed
of trust, license, agreement or other instrument or obligation to which Centra
is a party, or by which it or any of its properties or assets is bound, except
for such conflict, breach or default as to which requisite waivers or consents
either shall have been obtained by Centra by the Effective Date or shall have
been waived by Auto-trol in writing or (ii) violate any order, writ, injunction,
decree, statute, rule or regulation applicable to Centra or any of its
properties or assets. No consent or approval by any governmental authority
other than compliance with applicable securities laws of Colorado and Texas is
required in connection with the execution and delivery by Centra of this
Agreement or the consummation by Centra of the Merger and the other transactions
contemplated hereby.
5.05 Financial Statements.
--------------------
(a) Centra has delivered to Auto-trol balance sheets of Centra as of
May 31, 1995 and the related statements of earnings, stockholders equity and
changes in financial position for the periods ended on such date. All such
financial statements, together with the notes thereto, are prepared in
accordance with generally accepted accounting principles consistently applied
throughout the periods indicated and present fairly the financial position of
Centra and its results of operations and changes in financial position as of the
date indicated.
(b) Centra has delivered the following financial statements, attached
hereto as Schedule B, which are unaudited, but which have been prepared in
accordance with generally accepted accounting principles consistently applied
throughout the relevant period of the financial statement referred to in Section
5.05(a). Such financial statement presents fairly the financial position of
Centra and the results of its operations as of such date:
(i) Balance sheet as of May 31, 1995;
(ii) Statement of operations for January 1, 1994 through May 31,
1995;
5.06 Accounts Receivable. The accounts receivable of Centra, reflected on
the balance sheet as of May 31, 1995, represent amounts duly invoiced by Centra
to its customers on account of goods delivered or services rendered prior to
that date, which amounts were not subject to any rights of offset or reduction
on account of events occurring prior to that date (net of allowance for doubtful
accounts and cash
Plan of Merger 7
<PAGE>
discounts established in accordance with prior practice). Centra does not
warrant or represent as to the realizable value of such accounts receivable.
5.07 Fixed Assets. The fixed assets of Centra consist of items reasonably
believed to be usable or salable in the normal course of Centra's business. The
amounts shown for fixed assets have been determined in accordance with generally
acceptable accounting principles applicable to a continuing business applied on
a basis consistent with prior periods. Centra does not warrant or represent as
to the realizable value of the fixed assets.
5.08 Title to Properties, Absence of Liens and Encumbrances. Centra has
good and marketable title to its assets, real and personal, free and clear of
all mortgages, pledges, liens, charges and encumbrances. All assets and the
CENTRA 2000 software are, and except for changes in the ordinary course of
business will be as of the Closing, owned by Centra, with no rightful claim by
others, excepting Auto-trol's contingent right to the software as set forth in
that certain License Agreement dated March 31, 1994, between Centra and Auto-
trol. All of Centra's machinery, equipment and personal property is in good
repair and operating condition and is adequate to conduct the business of Centra
as presently constituted. Centra does not warrant or represent as to the
realizable value of any such other assets.
5.09 Financial Accounts. Except as set forth on Schedule C, Centra has no
bank accounts, investment accounts or certificates of deposit.
5.10 Absence of Undisclosed Liabilities. Except as set forth on Schedule
D, Centra had no indebtedness or liability, absolute or contingent, which is not
shown or adequately provided for thereon. Except as set forth on Schedule D,
and except for liabilities incurred in the normal course of business after June
1, 1995 (which are not, in the aggregate, material in amount), at the Execution
Date Centra has no indebtedness or liability, absolute or contingent, that is
not shown or adequately provided for.
5.11 Tax Matters. Centra has filed, or caused to be filed, with the
appropriate governmental agencies, all federal, state and local tax returns and
all reports with respect to income and all other reports, the filing of which is
necessary for the conduct of its business or required by any taxing authority
having jurisdiction. To the best knowledge of Centra, its management, and the
Centra Shareholders, all such tax returns and reports properly reflect the taxes
attributable to the business of Centra for the periods covered thereby. Except
as set forth on Schedule E, all federal, state and local taxes, assessments,
interest, penalties, deficiencies, fees or other governmental charges or
impositions called for by such tax returns or reports or, to Centra's knowledge,
claimed to be due by any taxing authority, have been properly paid. Centra has
not received any notice of deficiency or assessment or proposed deficiency or
assessment from the Internal Revenue Service or any other taxing authority.
Centra has not waived any law or regulation fixing, or consented to the
extension of, any period of time for assessment of any tax.
5.12 Patents, Trademarks, Copyrights and Trade Secrets. Except as listed
on Schedule F, Centra does not own any trademark registrations (whether under
state or federal statute) or trade names, registered copyrights, patents, patent
applications or inventions. Centra has maintained its CENTRA 2000 software as a
trade secret and has taken all reasonable measures, including confidentiality
agreements with its consultants and others, as necessary to protect the trade
secret status of such CENTRA 2000 software. Texas law provides for ownership by
employers in certain inventions made by employees. The Centra Shareholders have
agreed to the assignment of all rights and interest to any and all Centra
intellectual property to the Surviving Corporation.
Centra has not disclosed the CENTRA 2000 software to any third party in any form
except through license agreements which preclude further disclosure. Except as
disclosed on Schedule G, Centra has no licenses granted by or to it, or other
agreements to which it is a party, relating in whole or in part to any
trademarks, trademark registrations or trade names, registered copyrights,
patents, patent applications or inventions. Centra is not infringing upon, or
otherwise violating the rights of any third parties with respect to any
trademark, trademark registration, trade name, registered copyright or patent,
and no
Plan of Merger 8
<PAGE>
proceedings have been instituted against or claims received by Centra nor
are any proceedings threatened alleging any such violation, nor does Centra know
of any facts which may give rise to any such proceedings or claims.
5.13 Insurance. Schedule H lists all policies of insurance maintained by
Centra. All such policies are outstanding and duly in force on the date hereof,
are in the amounts shown in and insure against the losses and risks described in
said Schedule H. Centra has not received notice from any insurer or its agent
of cancellation of any insurance policy or that substantial actions will have to
be taken or that substantial capital improvements or other expenditures will
have to be made in order to continue such insurance. All such policies shall
remain outstanding and in full force as of and following the Closing and none of
such policies is cancelable as a result of the Merger.
5.14 Litigation. Except as set forth on Schedule I, there is no (i)
litigation, proceeding, arbitral action or governmental investigation pending
or, so far as known to Centra, threatened against Centra or its assets nor (ii)
any facts known to Centra that Centra believes will give rise to any such
litigation, proceeding or investigation, and there are no decrees, injunctions
or orders of any court or governmental department or agency outstanding against
Centra with respect to its business.
5.15 Licenses, Permits and Compliance with Laws. Centra holds all material
licenses, permits and authorizations necessary for the lawful conduct of its
business under, and is otherwise in compliance with, all applicable statutes,
regulations, orders, ordinances and other laws of the United States and all
state and local governments, and agencies thereof, that have a material effect
upon Centra or the conduct of its business. Centra has not received any notice
or otherwise been advised that it is in violation of any such statute,
regulation, order, ordinance or other law and knows of no existing circumstance
that is likely to result in such a violation.
5.16 Employee Plans and Agreements. Except as set forth on Schedule J,
Centra is not a party to any oral or written employment agreement, collective
bargaining agreement, pension, profit sharing, retirement, deferred
compensation, or bonus or stock purchase plan relating to its employees. There
are no disputes or controversies pending or, to the knowledge of Centra,
threatened with or by any employees of Centra that would materially affect
Centra's operations.
5.17 Transactions with Certain Persons. Except as set forth on Schedule K,
no officer, director or employee of Centra is presently a party to any material
transaction (determined by reference to the business of Centra) with Centra,
including without limitation any contract, agreement or other arrangement (i)
providing for the furnishing of services by, (ii) providing for the rental of
real or personal property from or (iii) otherwise requiring payments to (other
than for services as officers, directors or employees) any such person or
corporation, partnership, trust or other entity in which any such person has a
substantial interest as an officer, director, trustee or partner.
5.18 Absence of Certain Changes or Events. Except as described on Schedule
L and except for changes contemplated by this Agreement, (i) Centra has operated
its business in the ordinary course and exercised all reasonable efforts to
preserve its business intact, to keep available the services of its employees
and to preserve the good will of its suppliers, customers and others having a
business relationship with it, and (ii) there has been no change in Centra's
condition (financial or otherwise), assets, liabilities, earnings or business,
except for changes in the ordinary course of business that have not individually
or in the aggregate been materially adverse to Centra.
5.19 Material Contracts. Schedule M is a true, complete and accurate list
identifying all material contracts, agreements, leases (whether as lessor or
lessee), commitments and undertakings to which Centra is a party or to which any
of its properties are subject. Except as described on Schedule M, Centra is not
in default under any such contract, agreement, lease or undertaking and does not
know of any default by any other party thereto; and no contract, agreement or
undertaking referred to therein will be modified or changed prior to the Closing
without the prior written consent of Auto-trol. Except to the
Plan of Merger 9
<PAGE>
extent indicated on Schedule M, no consent or approval of other parties is
required for the consummation of the transactions contemplated herein. Except as
described on Schedule M, Centra does not have outstanding any agreement with
distributors, dealers or other sales representatives in connection with the
distribution of any of its products; and Centra will not incur any further
obligations or commitments or make any further additions to its property or
further purchases of machinery or equipment except in the ordinary course of
business to maintain its properties and equipment. Except as described on
Schedule M, Centra is not a party to any continuing contract for the future
purchase of goods, materials, supplies or equipment in excess of the
requirements for its business. Contracts, agreements, leases or undertakings
involving $1,500 or more shall be deemed to be material for the purposes of this
Section.
5.20 Employee Benefit Plans. The reporting and disclosure requirements of
the Employee Retirement Income Security Act of 1974 ("ERISA") and the Internal
Revenue Code of 1986, as amended (the "Code"), as applicable, have been
fulfilled in all material respects in connection with the employee benefit plans
of Centra, true and complete copies of which have been delivered to Auto-trol
(the "Benefit Plans"). Centra has furnished to Auto-trol copies of all filings,
if any, with the Internal Revenue Service and the Department of Labor for each
Benefit Plan's most recent plan year. Neither Centra, nor any of the trusts
created under any Benefit Plan, nor any trustee, administrator or other
fiduciary, to the best of Centra's knowledge, engaged in a "prohibited
transaction" as such term is defined in the applicable provisions of the Code or
ERISA, or otherwise took or omitted any action which could subject a Benefit
Plan, a trust created under a Benefit Plan, or any party dealing with a Benefit
Plan or trust, to a material tax or penalty on prohibited transactions imposed
by ERISA or the Code; or which could result in a direct or indirect material
liability to Auto-trol or the Surviving Corporation, or any trustee or Benefit
Plan administrator.
5.21 No Material Misstatement. No representation or warranty by Centra, or
any statement or certification furnished by Centra to Auto-trol hereunder
contains or will contain any untrue statement of a material fact, or omits or
will omit to state a material fact necessary to make the statements contained
therein not misleading.
5.22 No Fees Due. No fees are due to brokers or other persons as a result
of the Merger and related transactions.
5.23 No Reduction in Shares. To the best of the knowledge of management of
Centra, there is no plan or intention by the Centra Shareholders to sell,
exchange, or otherwise dispose of a number of shares of Auto-trol Common Stock
received in the transaction that would reduce the Centra Shareholders' ownership
of Auto-trol Common Stock to a number of shares having a value, as of the date
of the transaction, of less than 50 percent of the value of all of the formerly
outstanding stock of Centra as of the same date.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF AUTO-TROL
Auto-trol hereby represents and warrants, which representations and warranties
shall be true and correct as of the Closing as if expressly restated on the
Closing and shall survive the Closing, that:
6.01 Organization and Authority. Auto-trol is a corporation duly formed,
validly existing and in good standing under the laws of the State of Colorado,
has all corporate power and authority needed to carry on its business as now
being conducted and to own or lease and operate the assets and properties now
owned or leased and operated by it, and is duly qualified to do business and is
in good standing in all jurisdictions in which Auto-trol is required to be so
qualified except for jurisdictions in which failure to be so qualified or to be
in good standing could not subject Auto-trol to any material liability or
disability by reason of such failure.
Plan of Merger 10
<PAGE>
6.02 Capitalization. The authorized capital stock of Auto-trol consists of
forty million (40,000,000) shares of Common Stock, $.01 par value, of which no
more than thirty-two million five hundred thousand (32,500,000) shares shall be
issued and outstanding as of the Closing. All of such shares, including the
shares to be issued pursuant to this Agreement as of the Closing, are validly
issued and outstanding, fully paid and nonassessable. Except as set forth on
Schedule O, there are outstanding no warrants, options, agreements, rights,
convertible securities or other commitments pursuant to which Auto-trol is or
may become obligated to issue any shares of capital stock or any other
securities.
6.03 Articles of Incorporation and Bylaws. Auto-trol has delivered to Centra
complete and accurate copies of the Articles of Incorporation and Bylaws of
Auto-trol, as in effect on the date hereof.
6.04 Financial Statements. Auto-trol has delivered to Centra its 1994 Annual
Report, containing its report on Form 10-K for the fiscal year ended September
30, 1994, and its reports on Form 10-Q for the first two quarters of the fiscal
year ending September 30, 1995. All such financial statements, together with
the notes thereto, are in accordance with the respective books and records of
Auto-trol and its subsidiaries, have been prepared in accordance with generally
accepted accounting principles applied on a consistent basis (except as may be
stated in the notes to such statements) throughout the periods covered by such
statements and present fairly the consolidated financial position of Auto-trol
and its subsidiaries and the consolidated results of their operations and
changes in financial position, as of the respective dates and for the respective
periods indicated.
6.05 Authority Relative to this Agreement. Auto-trol has the full corporate
power to enter into this Agreement and to carry out its obligations hereunder.
The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly and validly authorized by its
Board of Directors; no other corporate acts or proceedings on the part of Auto-
trol are necessary to authorize this Agreement or the transactions contemplated
hereby, and this Agreement constitutes a valid and binding obligation of Auto-
trol. Neither the execution and delivery of this Agreement by Auto-trol nor the
consummation of the transactions contemplated hereby nor compliance by Auto-trol
with any of the provisions hereof will violate, or conflict with, or result in a
breach of any provisions of, or constitute a default (or any event which, with
notice or lapse of time or both, would constitute a default) under, any of the
terms, conditions or provisions of the Articles of Incorporation or Bylaws of
Auto-trol or any note, bond mortgage, indenture, deed of trust, license,
agreement or other instrument or obligation to which Auto-trol is a party, or by
which it or any of its property or assets is bound or affected, except for such
conflict, breach or default as to which requisite waivers or consents either
shall have been obtained by Auto-trol by the Effective Date or shall have been
waived by Centra, or violate any order, writ, injunction, decree, statute, rule
or regulation applicable to Auto-trol or any of its properties or assets. No
consent or approval by any governmental authority, other than compliance with
applicable federal and state securities laws, is required in connection with the
execution and delivery by Auto-trol of this Agreement or the consummation by
Auto-trol of the Merger and the other transactions contemplated hereby.
6.06 No Material Misstatement. No representation or warranty by Auto-trol,
or any statement or certificate furnished by Auto-trol to Centra hereunder
contains or will contain any untrue statement or a material fact or omits or
will omit to state a material fact necessary to make the statements contained
therein not misleading.
6.07 No Material Adverse Change. Since May 19, 1995, there has not been any
change in the condition (financial or otherwise), assets, liabilities or
business of Auto-trol and its subsidiaries, other than changes in the ordinary
course of business, which in the aggregate have not been materially adverse.
6.08 Litigation. Except as described on Schedule P, there is no (i)
litigation, proceeding, arbitral action or governmental investigation pending
or, so far as known to Auto-trol, threatened against Auto-trol or its assets nor
(ii) any facts known to Auto-trol that Auto-trol believes will give rise to any
such litigation, proceeding or investigation, and there are no decrees,
injunctions or orders of any court or governmental department or agency
outstanding against Auto-trol with respect to its business.
Plan of Merger 11
<PAGE>
6.09 Filings under the Securities and Exchange Act of 1934. Auto-trol has
filed, or caused to be filed, with the Securities and Exchange Commission, all
reports required to be filed by Section 13 or 15(d) of the Securities Exchange
Act of 1934 during the preceding twelve (12) months.
6.10 Licenses, Permits and Compliance with Laws. Auto-trol holds all
material licenses, permits and authorizations necessary for the lawful conduct
of its business under, and is otherwise in compliance with, all applicable
statutes, regulations, orders, ordinances and other laws of the United States
and all state and local governments, and agencies thereof, that have a material
effect upon Auto-trol or the conduct of its business. Auto-trol has not
received any notice or otherwise been advised that it is in violation of any
such statute, regulation, order, ordinance or other law and knows of no existing
circumstance that is likely to result in such a violation.
6.11 Transactions with Certain Persons. Except as set forth on Schedule R,
no officer, director or employee of Auto-trol is presently a party to any
material transaction (determined by reference to the business of Auto-trol) with
Auto-trol, including without limitation any contract, agreement or other
arrangement (i) providing for the furnishing of services by, (ii) providing for
the rental of real or personal property from or (iii) otherwise requiring
payments to (other than for services as officers, directors or employees) any
such person or corporation, partnership, trust or other entity in which any such
person has a substantial interest as an officer, director, trustee or partner.
6.12 No Fees Due. No fees are due to brokers or other persons as a result of
the Merger and related transactions.
6.13 Filings and Retention. The Board of Directors of Auto-trol have duly
adopted this Agreement and Plan of Merger and Reorganization as required by
Treas. Reg. (S) 1.368-3, and Auto-trol will file all statements, and maintain
such permanent records, as are required by Treas. Reg. (S) 1.368-3. Auto-trol
will cause Subsidiary and/or Surviving Corporation to file all statements, and
maintain such records, as are required by Treas. Reg. (S) 1.368-3.
6.14 No Plans of Disposal. Auto-trol has no plan or intention to re-acquire
any of its Auto-trol Common Stock issued in the transaction. Auto-trol has no
plan or intention to liquidate the Surviving Corporation; to merge the Surviving
Corporation with and into another corporation; to sell or otherwise dispose of
any of the assets of Centra acquired in the transaction, except for dispositions
made in the ordinary course of business or transfers described in Code Section
368 (a) (2) (C).
ARTICLE VII
REPRESENTATIONS AND WARRANTIES OF SUBSIDIARY
Subsidiary hereby represents and warrants, which representations and warranties
shall be true and correct as of the Effective Date as if expressly restated on
the Effective Date and shall survive the Effective Date, that:
7.01 Organization and Authority. Subsidiary is a corporation duly organized,
validly existing and in good standing under the laws of the State of Colorado.
7.02 Capitalization. Subsidiary's authorized capital stock consists of 1,000
shares of Common Stock, $1.00 par value, of which 1,000 shares are outstanding.
All such outstanding shares are duly authorized, validly issued, fully paid and
nonassessable, and are owned of record and beneficially by Auto-trol.
7.03 Articles of Incorporation and Bylaws. Subsidiary has delivered to
Centra complete and accurate copies of the Articles of Incorporation and Bylaws
of Subsidiary, as in effect on the date hereof.
Plan of Merger 12
<PAGE>
7.04 Authority Relative to this Agreement. Subsidiary has the full corporate
power to enter into this Agreement and the Articles of Merger and to carry out
its obligations hereunder and thereunder. The execution and delivery of this
Agreement and the execution and filing of the Articles of Merger and the
consummation of the transactions contemplated hereby have been duly and validly
authorized by its Board of Directors and by its sole shareholder; no other
corporate acts or proceedings on the part of Subsidiary are necessary to
authorize this Agreement and the Articles of Merger or the transactions
contemplated hereby and thereby, and this Agreement constitutes a valid and
binding obligation of Subsidiary. Neither the execution and delivery of this
Agreement nor the execution and filing of the Articles of Merger nor the
consummation of the transactions contemplated hereby and thereby nor compliance
by Subsidiary with any of the provisions hereof will violate, or conflict with,
or result in a breach of any provisions of, any of the terms, conditions or
provisions of the Articles of Incorporation or Bylaws of Subsidiary, or violate
any order, writ, injunction, decree, statute, rule or regulation applicable to
Subsidiary. No consent or approval by any governmental authority is required in
connection with the execution and delivery by Subsidiary of this Agreement or
the execution and filing of the Articles of Merger or the consummation by
Subsidiary of the Merger and other transactions contemplated hereby and thereby.
7.05 Commitments. Subsidiary has no commitments or liabilities except those
incurred by it in connection with the transactions contemplated by this
Agreement and within the authority of this Agreement.
7.06 No Material Misstatement. No representation or warranty by Subsidiary,
or any statement or certificate furnished by Subsidiary to Centra hereunder
contains or will contain any untrue statement or a material fact or omits or
will omit to state a material fact necessary to make the statements contained
therein not misleading.
7.07 Litigation. Except as described on Schedule P, there is no (i)
litigation, proceeding, arbitral action or governmental investigation pending
or, so far as known to Subsidiary, threatened against Subsidiary or its assets
nor (ii) any facts known to Subsidiary that Subsidiary believes will give rise
to any such litigation, proceeding or investigation, and there are no decrees,
injunctions or orders of any court or governmental department or agency
outstanding against Subsidiary with respect to its business.
7.08 Licenses, Permits and Compliance with Laws. Subsidiary holds all
material licenses, permits and authorizations necessary for the lawful conduct
of its business under, and is otherwise in compliance with, all applicable
statutes, regulations, orders, ordinances and other laws of the United States
and all state and local governments, and agencies thereof, that have a material
effect upon Subsidiary or the conduct of its business. Subsidiary has not
received any notice or otherwise been advised that it is in violation of any
such statute, regulation, order, ordinance or other law and knows of no existing
circumstance that is likely to result in such a violation.
7.09 Transactions with Certain Persons. Except as set forth on Schedule R,
no officer, director or employee of Subsidiary is presently a party to any
material transaction (determined by reference to the business of Subsidiary)
with Subsidiary, including without limitation any contract, agreement or other
arrangement (i) providing for the furnishing of services by, (ii) providing for
the rental of real or personal property from or (iii) otherwise requiring
payments to (other than for services as officers, directors or employees) any
such person or corporation, partnership, trust or other entity in which any such
person has a substantial interest as an officer, director, trustee or partner.
7.10 Filings and Retention. The Board of Directors of Subsidiary have duly
adopted this Agreement and Plan of Merger and Reorganization as required by
Treas. Reg. (S) 1.368-3, and Subsidiary (and/or Surviving Corporation) will file
all statements, and maintain such permanent records, as are required by Treas.
Reg. (S) 1.368-3.
Plan of Merger 13
<PAGE>
7.11 No Additional Shares. Following the transaction, Subsidiary will not
issue additional shares of its stock that would result in Auto-trol losing
control of Subsidiary within the meaning of Code Section 368 (c)(1).
ARTICLE VIII
CERTAIN UNDERSTANDINGS AND AGREEMENTS
8.01 Centra's Conduct of Business. After the Execution Date and prior to the
Closing, Centra will conduct its business only in the ordinary course. In
addition, prior to the Closing, Centra will not, except as otherwise permitted
by this Agreement or as may be unanimously approved by a resolution of the Board
of Directors of Centra or the Vice President of Finance of Auto-trol: (i)
declare, set aside or pay any dividend in property or cash or other distribution
of assets to the Centra Shareholders, (ii) make any change in the number of
shares of authorized or issued capital stock of Centra, nor grant or make any
option, warrant, call, commitment or agreement of any character relating to the
authorized or issued capital stock of Centra, (iii) lend any money or otherwise
pledge the credit of Centra, except in the ordinary course of business, (iv)
fail in any material respect to comply with any statutes, laws, ordinances,
rules, regulations or other governmental restrictions applicable to it or with
any contract, commitment or agreement to which it is a party, (v) initiate
discussions or negotiations with any other person relating to or approve any
merger or consolidate with, purchase substantially all of the assets of, or
otherwise acquire any business or any proprietorship, firm, association,
corporation or other business organization or division thereof, (vi) incur any
material liability, (vii) enter into any material contract, (viii) acquire or
dispose of any material assets or otherwise undertake or commit to any material
obligation or commitment, or (ix) enter into any employment consulting or
similar agreements. Centra shall: (i) duly comply in all material respects
with all laws applicable to it and to the conduct of its business and all laws
applicable to the transactions contemplated by this Agreement, (ii) maintain in
full force and effect the insurance policies heretofore maintained by Centra (or
policies providing substantially the same coverage), (iii) take such action as
may reasonably be necessary to preserve its properties wherever located,
including, but not limited to, all steps reasonably necessary to maintain its
trademarks, trade names, trade secrets, service marks and copyrights and any
pending applications therefor, and any other intangible assets which are
material to its business as conducted now or hereafter prior to the Closing, and
(iv) maintain its books and records in the usual, regular and ordinary manner
and promptly advise Auto-trol in writing of any material adverse change in its
condition (financial or otherwise), assets, liabilities or business.
8.02 Auto-trol's and Subsidiary's Conduct of Business. After the Execution
Date and prior to the Closing, Auto-trol and Subsidiary will conduct business
only in the ordinary course. Auto-trol and Subsidiary shall: (i) duly comply
in all material respects with all laws applicable to them and to the conduct of
business and all laws applicable to the transactions contemplated by this
Agreement, (ii) maintain in full force and effect the insurance policies
heretofore maintained by Auto-trol (or policies providing substantially the same
coverage), (iii) take such action as may reasonably be necessary to preserve its
properties wherever located, including, but not limited to, all steps reasonably
necessary to maintain its trademarks, trade names, trade secrets, service marks
and copyrights and any pending applications therefor, and any other intangible
assets which are material to its business as conducted now or hereafter prior to
the Closing, and (iv) maintain its books and records in the usual, regular and
ordinary manner and promptly advise Centra in writing of any material adverse
change in its condition (financial or otherwise), assets, liabilities or
business.
8.03 Centra Shareholders' Meeting. Centra shall have properly called and
held a special meeting of the Centra Shareholders, which may be by written
unanimous consent as provided by the Texas Business Corporation Act, prior to
the Execution Date, for the purpose of voting to approve this Agreement, and
such Agreement shall have been duly approved by said Shareholders. For such
Centra Shareholders'
Plan of Merger 14
<PAGE>
meeting, Auto-trol shall furnish to Centra copies of (i) its 1994 Annual Report
to shareholders, (ii) its reports under the Securities Exchange Act of 1934 on
Form 10-Q for the first two quarters of the fiscal year ending September 30,
1995 and (iii) its proxy materials for the Annual Meeting of Shareholders held
on January 31, 1995, for the purpose of furnishing such information to the
Centra Shareholders to assist them in making an informed judgment about this
Agreement.
8.04 Employee Plans. At or prior to the Effective Date, Centra's Board of
Directors shall cause all employee benefit plans and stock option plans of
Centra, and all rights and options under any such plan, to be extinguished and
terminated, except as Auto-trol may specifically direct in writing to the
contrary.
8.05 Access. Between the Execution Date and the Closing, Centra shall give
to authorized representatives of Auto-trol such access as Auto-trol may
reasonably request to any and all contracts, commitments, books, records,
technical reviews, products and affairs of Centra, and will cause its officers
and employees to furnish any and all financial, technical and operating data and
other information pertaining to its business as Auto-trol shall from time to
time reasonably require. Auto-trol will hold in confidence all information so
obtained and will use such information only for the purpose of considering the
Merger, and if the Merger is not consummated as contemplated herein, will return
all returnable data to Centra. Such obligation of confidentiality shall not
extend to any information which is in the public domain or that is or shall
become described in a public patent or part of public knowledge or the
literature through no act or omission by Auto-trol or its directors, officers,
employees, professional advisors or other representatives or that shall have
been lawfully received by Auto-trol from a third party without obligation of
confidentiality, other than professional advisors and other representatives of
the Centra Shareholders. It is understood that specific confidential
information disclosed to Auto-trol or Subsidiary shall not be deemed to be
within any of the three foregoing exceptions merely because it is embraced by
more general information within any one or more of these exceptions.
Furthermore, any combination of features shall not be deemed to be within these
exceptions, unless the combination itself is within any one or more of these
exceptions.
ARTICLE IX
CONDITIONS TO OBLIGATION OF EACH PARTY
The obligation of each party to effect the Merger shall be subject to the
fulfillment, at or prior to the Closing, of the following conditions:
9.01 No Prohibition of Merger. No order shall have been issued by any court
or administrative body to restrain, enjoin or otherwise prevent the consummation
of this Agreement or the transactions contemplated hereby.
9.02 Compliance with Law. There shall have been obtained any and all
permits, approvals and consents of securities or blue sky commissions or
agencies of any jurisdiction and of any other governmental body or agency, which
counsel for Auto-trol or for Centra may reasonably deem necessary or appropriate
so that consummation of the transactions contemplated by this Agreement will be
in compliance with the applicable laws under available exemptions from the
registration provisions of federal and state securities laws.
ARTICLE X
CONDITIONS TO OBLIGATIONS OF AUTO-TROL AND SUBSIDIARY
The obligations of Auto-trol and Subsidiary under this Agreement to effect the
Merger shall be subject to the fulfillment at or prior to the Closing of each of
the following conditions:
Plan of Merger 15
<PAGE>
10.01 Representations and Warranties True at the Effective Date. Except for
changes contemplated by this Agreement and changes that do not in the aggregate
have a material adverse effect on the financial condition or business of Centra,
the representations and warranties of Centra contained in this Agreement shall
be deemed to have been made again at and as of the Closing and shall then be
true and correct in all material respects, and at the Closing, Centra shall have
delivered to Auto-trol a certificate to such effect signed by the president of
Centra.
10.02 Centra's Performance. Each of the obligations of Centra to be performed
by it, on or before the Closing, pursuant to the terms of this Agreement, shall
have been duly performed at the Closing, and, at the Closing, Centra shall have
delivered to Auto-trol a certificate to such effect signed by the president of
Centra.
10.03 Authority. All action required to be taken by, or on the part of,
Centra to authorize the execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby shall have been
duly and validly taken by the Board of Directors and the Centra Shareholders.
10.04 Absence of Undisclosed Liabilities. Between the Execution Date and the
Closing, Centra shall not, without prior written consent of Auto-trol, have
incurred or become subject to, or agreed to incur or become subject to, any
liability or obligation, absolute or contingent, except current liabilities
incurred in the ordinary course of business and obligations under contracts
entered into in the ordinary course of business and except as otherwise
contemplated by this Agreement.
10.05 Approvals and Consents: Centra. Centra shall have obtained all
requisite approvals and consents from governmental or regulatory bodies or
agencies or pursuant to leases, mortgages, contracts, agreements, permits or
licenses relative to the transactions contemplated by this Agreement.
10.06 Transactions Adverse to Auto-trol's Interest. There shall not have been
instituted any suit or proceeding to restrain or invalidate this transaction or
seeking damages from or to impose obligations upon Auto-trol related to this
transaction which, in Auto-trol's judgment, reasonably exercised, would involve
expense or lapse of time that would be materially adverse to Auto-trol's
interest. There shall not have been suffered (after the Execution Date) any
casualty or loss, whether or not covered by insurance, which materially
adversely affects the assets of Centra.
10.07 Opinion of Centra's Counsel. There shall have been delivered to Auto-
trol an opinion dated as of the Closing and addressed to Auto-trol by Centra's
counsel, with respect to Texas and Federal laws, to the effect that:
(a) Centra is a corporation duly organized, validly existing and in
good standing under the laws of the State of Texas and has corporate power to
carry on its business as it is then being conducted;
(b) Centra has full corporate power to carry out the transactions
provided for in this Agreement; all corporate and other proceedings required to
be taken by, or on the part of Centra to authorize it to execute and deliver
this Agreement and to consummate the transactions contemplated hereby have been
duly and validly taken; this Agreement has been duly and validly authorized,
executed and delivered by Centra and constitutes a valid and binding obligation
of Centra.
(c) Except as described on Schedule I, such counsel does not know of
any material litigation, proceeding, arbitral action or governmental
investigation pending or threatened against Centra;
(d) The authorized, issued and outstanding capital stock of Centra is
as stated in this Agreement, except for changes permitted by this Agreement;
Plan of Merger 16
<PAGE>
(e) All the outstanding shares of Centra Common Stock have been duly
authorized and are validly issued, fully paid and nonassessable;
(f) Neither the execution, the delivery of this Agreement, nor the
consummation of the transactions contemplated hereby nor compliance by Centra
with any of the provisions hereof violates or conflicts with, or results in a
breach of any provisions of (i) the Articles of Incorporation or Bylaws of
Centra, or (ii) to the best of such counsel's knowledge, after reasonable
investigation, constitutes a material default (or an event which with notice or
lapse of time, or both, would constitute a material default) under, or results
in the termination of, or accelerates the performance required by, or results in
the creation of any lien, security interest, charge or encumbrance upon any of
the assets of Centra under, any of the terms, conditions or provisions of any
material note, bond, mortgage, indenture, deed of trust, license, agreement or
other instrument or obligation of which such counsel has knowledge to which
Centra is a party or by which Centra or any of its assets may be bound or
affected, except for such conflict, breach or default as to which requisite
waivers or consents (specifying such waivers or consents) shall have been
obtained by Centra by the Effective Date, or (iii) violates any order, writ,
injunction or decree, of which such counsel has knowledge, applicable to Centra
or any of its material assets;
(g) To the knowledge of such counsel, there is no default by Centra
(or event which, with notice or lapse of time or both, would constitute a
default) under any outstanding material contract, commitment or agreement to
which Centra is a party or under which it is obligated or bound or to which any
of its property may be subject or under any governmental license, franchise,
permit or other authorization, or breach of any provision of its Articles of
Incorporation or Bylaws;
(h) No consent or approval by any governmental authority (other than
such consent or approval as may be required to comply with the blue sky or
securities laws of any jurisdiction) is required in connection with the
consummation by Centra of the transactions contemplated by this Agreement;
(i) To the knowledge of such counsel, Centra holds all licenses,
permits and authorizations necessary for the lawful conduct of its business
under and pursuant to all applicable statutes, laws, ordinances, rules and
regulations of all federal, state, local and foreign governmental bodies,
agencies and subdivisions having, asserting or claiming jurisdiction over it or
over any part of its operations and is in compliance with and not in default in
any respect under all such statutes, laws, ordinances, rules and regulations
except for such violations, if any, as in the aggregate would not have
materially adverse effect on the condition (financial or otherwise), assets,
liabilities or business of Centra or impair Centra's ability to consummate the
Merger and the other transactions contemplated hereby;
(j) Except as contemplated by this Agreement, to the knowledge of such
counsel, Centra has good title, free and clear of title defects and objections,
security interests, liens, charges and encumbrances of any nature whatsoever
(other than the lien of current property taxes and assessments not in default,
if any) to all its inventory, receivables, furniture, machinery, equipment and
other personal property; and
(k) To the knowledge of such counsel, there are no pending or
threatened material claims by Centra against others for infringement, misuse or
misappropriation of any patent, trademark, trade name, service mark, copyright
or trade secret owned by Centra, and there is no material infringement, misuse
or misappropriation by Centra of any valid patent, trademark, trade name,
service mark, copyright or trade secret owned by any third party, and there are
no pending or threatened material claims by others against Centra for
infringement, misuse or misappropriation of any patent, trademark, trade name,
service mark, copyright or trade secret owned by any third party.
Such opinion or opinions shall cover such other matters incident to the
transactions contemplated by this Agreement as Auto-trol or its counsel
reasonably may request. All such opinions may expressly rely as to
Plan of Merger 17
<PAGE>
matters of fact upon certificates of appropriate officers or agents of Centra or
appropriate governmental officials.
ARTICLE XI
CONDITIONS TO OBLIGATIONS OF CENTRA
The obligations of Centra under this Agreement to effect the Merger shall be
subject to the fulfillment on or prior to the Closing of each of the following
conditions:
11.01 Authorizations and Actions. All of the representations and warranties
of Auto-trol and Subsidiary contained in this Agreement shall be true and
correct at and as of the Closing. The Board of Directors of Subsidiary, and
Auto-trol, as the sole shareholder of Subsidiary, shall have approved and
adopted this Agreement and shall have complied with and performed all of the
agreements, covenants and conditions required by this Agreement to be performed
or complied with by them at or prior to the Closing. Auto-trol shall have
delivered to Centra a certificate to such effect signed by an authorized officer
of Auto-trol. Such certificate shall include a statement that the shares of
Auto-trol Stock specified to be issued under this Agreement are available for
issuance.
11.02 Approvals and Consents: Auto-trol. Auto-trol shall have obtained all
requisite approvals and consents from governmental or regulatory bodies or
agencies or pursuant to leases, mortgages, contracts, agreements, permits or
licenses relative to the transactions contemplated by this Agreement.
11.03 Transactions Adverse to Centra's Interests. There shall not have been
instituted any suit or proceeding to restrain or invalidate this transaction or
seeking damages from or to impose obligations upon Auto-trol, Subsidiary or
Centra which, in Centra's judgment, reasonably exercised, would involve expense
or lapse time that would be materially adverse to Centra's interest. There
shall not have been suffered (after the date hereof) any casualty or loss,
whether or not covered by insurance, which materially adversely affects the
assets of Auto-trol.
11.04 Opinion of Auto-trol's Counsel. There shall have been delivered to
Centra an opinion, dated as of the Closing and addressed to Centra, by Auto-
trol's Counsel, Rothgerber, Appel, Powers & Johnson, to the effect that:
(a) Auto-trol is a corporation duly organized and existing and in good
standing under the laws of the State of Colorado and has corporate power to
carry on its business as it is then being conducted and is in good standing in
the jurisdictions in which such qualification is required except for
jurisdictions in which failure to be so qualified and in good standing could not
subject Auto-trol to any material liability or disability by reason of such
failure. Subsidiary is a corporation duly organized, validly existing and in
good standing under the laws of the State of Colorado and has corporate power to
carry on its business as it is then being conducted and is in good standing in
the jurisdictions in which such qualification is required except for
jurisdictions in which failure to be so qualified and in good standing could not
subject Subsidiary to any material liability or disability by reason of such
failure;
(b) The execution, delivery and performance of the Agreement by Auto-
trol and Subsidiary have been duly authorized and approved by all requisite
corporate action by Auto-trol and Subsidiary, and this Agreement has been duly
executed and delivered by Auto-trol and Subsidiary pursuant to such
authorization and constitutes a valid and binding obligation of Auto-trol and
Subsidiary;
(c) All the outstanding shares of Auto-trol Common Stock have been
duly authorized and are validly issued, fully paid and nonassessable. All
Subsidiary shares have been duly and validly authorized and issued and are fully
paid and nonassessable;
Plan of Merger 18
<PAGE>
(d) Neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby nor compliance by Auto-trol
or Subsidiary with any of the provisions hereof violate or conflict with, or
result in a breach of any provision of (i) the Articles of Incorporation or
Bylaws of Auto-trol or Subsidiary or (ii) to the best of such counsel's
knowledge after reasonable investigation, constitute a material default (or an
event which with notice or lapse or time, or both, would constitute a material
default) under, or result in the termination of, or accelerate the performance
required by, or result in the creation of any lien, security interest, charge or
encumbrance upon any material asset under, any of the terms, conditions, or
provisions of any material note, bond, mortgage, indenture, deed of trust,
license, agreement, or other instrument or obligation of which such counsel has
knowledge to which Auto-trol or Subsidiary is a party or by which Auto-trol or
Subsidiary or any of its material assets may be bound or affected except for
such conflict, breach or default as to which requisite waivers or consents
(specifying such waivers or consents) shall have been obtained by Auto-trol or
Subsidiary by the Effective Date, or (iii) violate any order, writ, injunction
or decree applicable to Auto-trol or Subsidiary of which such counsel has
knowledge;
(e) Except as described on Schedule P, such counsel does not know of
any material litigation, proceeding, arbitral action or governmental
investigation pending or threatened against Auto-trol or Subsidiary;
(f) To the knowledge of such counsel, there is no default by Auto-trol
or Subsidiary (or event which, with notice or lapse of time or both, would
constitute a default) under any outstanding material contract, commitment or
agreement to which Auto-trol or Subsidiary is a party or under which it is
obligated or bound or to which any of its property may be subject or under any
governmental license, franchise, permit or other authorization, or breach of any
provision of its Articles of Incorporation or Bylaws; and
(g) To the knowledge of such counsel, Auto-trol and Subsidiary hold
all licenses, permits and authorizations necessary for the lawful conduct of
business under and pursuant to all applicable statutes, laws, ordinances, rules
and regulations of all federal, state, local and foreign governmental bodies,
agencies and subdivisions having, asserting or claiming jurisdiction over it or
over any part of its operations and is in compliance with and not in default in
any respect under all such statutes, laws, ordinances, rules and regulations
except for such violations, if any, as in the aggregate would not have
materially adverse effect on the condition (financial or otherwise), assets,
liabilities or business of Auto-trol or Subsidiary or impair Auto-trol's and
Subsidiary's ability to consummate the Merger and the other transactions
contemplated hereby;
(h) No consent or approval by any governmental authority (other than
such consent or approval as may be required to comply with the blue sky or
securities laws of any jurisdiction) is required in connection with the
consummation by Auto-trol or Subsidiary of the transactions contemplated by this
Agreement;
(i) Consent to the Merger has been obtained from the Bondholder of
Auto-trol Industrial Development Revenue Bonds.
Such opinion or opinions shall cover such other matters incident to the
transactions contemplated by this Agreement as Centra or its counsel reasonably
may request. Counsel may rely upon certificates from other responsible officers
of Auto-trol and Subsidiary as to factual matters in connection with the
furnishing of the opinion provided for in this Section 11.04.
11.05 Auto-trol's and Subsidiary's Performance. Each of the obligations
of Auto-trol and Subsidiary to be performed by them, on or before the Closing,
pursuant to the terms of this Agreement, shall have been duly performed at the
Closing, and, at the Closing, Auto-trol and Subsidiary shall have delivered to
Centra certificates to such effect signed by authorized officers of Auto-trol
and Subsidiary.
Plan of Merger 19
<PAGE>
ARTICLE XII
NATURE AND SURVIVAL OF REPRESENTATIONS
AND WARRANTIES; INDEMNIFICATION
12.01 Nature and Survival of Representations. All statements contained herein
or in any Schedule hereto or in any certificate or instrument of conveyance
delivered by or on behalf of the parties pursuant to this Agreement or in
connection with the transactions contemplated hereby shall be deemed
representations and warranties of the parties made in this Agreement and as
provided herein shall survive the Effective Date for a period of one (1) year
thereafter notwithstanding any investigation at any time made by or on behalf of
any other party; provided, however, that any representation or warranty which is
the subject of a claim or dispute asserted in writing by an affected party prior
to the expiration of the applicable survival period and in a manner sufficient
to identify the same shall survive with respect to such claim or dispute until
final resolution thereof.
ARTICLE XIII
MISCELLANEOUS
13.01 Notices. All notices and other communications required or permitted to
be given hereunder shall be in writing and shall be deemed to have been fully
given if delivered or mailed, first-class, postage prepaid, to the following
addresses:
(i) If to Auto-trol or Subsidiary:
Auto-trol Technology Corporation
12500 North Washington Street
Denver, Colorado 80241-2400
Attn.: Allyson Kissell
(ii) If to Centra:
Centra 2000, Inc.
1350 NASA Road 1
Suite 202
Houston, Texas 77058
Attn.: Susan Floyd
or to such other address or addresses as may hereafter be specified by notice
given by any of the above for itself to the others.
13.02 Closing. The Closing shall take place as soon as practicable but not
later than June 30, 1995, and shall be held at such place as shall be agreed
upon by the parties hereto.
13.03 Assignability and Parties in Interest. This Agreement shall not be
assignable by any of the parties hereto. This Agreement shall inure to the
benefits of and be binding upon the parties hereto and their respective
successors; nothing in this Agreement is intended to confer, expressly or by
implication, upon any other person any rights or remedies under or by reason of
this Agreement.
13.04 Governing Law. This Agreement shall be governed by, and construed and
enforced in accordance with the laws of the State of Colorado.
Plan of Merger 20
<PAGE>
13.05 Arbitration. Any disputes between the signatories to this Agreement
shall be submitted to binding arbitration in the City of Denver, State of
Colorado, under the rules then prevailing of the American Arbitration
Association. Judgment upon any award made in such arbitration may be entered
and enforced in any court of competent jurisdiction. Auto-trol, Subsidiary and
Centra shall share equally in any cost of arbitration, with each paying its own
attorney's fees.
13.06 Publicity. On the Execution Date, Auto-trol and Centra shall jointly
prepare and distribute a press release describing this Agreement and the Merger.
Further press releases and other announcements with respect to this Agreement
and the Merger shall be subject to mutual agreement, provided, however, that
this provision shall not prohibit Auto-trol or Centra from furnishing any
information to any governmental regulatory or administrative agency or authority
or from making any other disclosure required by applicable law, provided that
such party shall make reasonable efforts to inform the other in advance of such
disclosure and to obtain such other party's concurrence as to the substance of
such disclosure.
13.07 Complete Agreement. This Agreement, the exhibits hereto and the
documents delivered pursuant hereto or referred to herein contain the entire
agreement between the parties hereto with respect to the transactions
contemplated herein and therein and, except as provided herein, supersede all
previous negotiations, commitments and writings.
13.08 Modifications, Amendments and Waivers. At any time prior to the
Effective Date, the parties hereto may, by written agreement (i) extend the time
for the performance of any of the obligations or other acts of the parties
hereto, (ii) waive any inaccuracies in the representations and warranties
contained in this Agreement or in any schedule or document delivered pursuant
hereto, and (iii) waive compliance with any of the covenants or agreements
contained in this Agreement. At any time prior to the Effective Date, if
authorized by their respective Boards of Directors, the parties hereto may, by
written agreement, notwithstanding shareholder approval, amend or supplement any
of the provisions of this Agreement, provided, however, after this Agreement has
been approved by shareholders, no amendment may be made in the consideration to
be received by Centra Shareholders in the Merger. Any written agreement
referred to in this Section 13.08 shall be validly and sufficiently authorized
for the purposes of this Agreement if signed, on behalf of Centra, Auto-trol and
Subsidiary, by a person or persons authorized to sign this Agreement.
13.09 Interpretation. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
13.10 Expenses. Each party shall pay for its own expenses and costs,
including the fees of any attorneys and accountants retained by it, in
connection with the preparation of this Agreement and the consummation of the
transactions contemplated hereby, and shall not be included as a liability.
13.11 Termination. This Agreement may be terminated:
(a) If the parties hereto agree in writing to a termination of this
Agreement; or
(b) At the election of any of Auto-trol, Subsidiary or Centra, if
all of the conditions to its obligations to effect the Merger have
not been fulfilled on or prior to June 30, 1995; or
(c) At the election of Auto-trol, Subsidiary or Centra, if another
party materially breaches any obligation in this Agreement and fails
to cure such breach within 20 days after written notice of such
breach. Any defaults which are not corrected may be waived by the
agreement of all parties.
Plan of Merger 21
<PAGE>
13.12 Counterparts. This Agreement may be executed in any number of
counterparts, all of which together shall constitute but one agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first above written.
AUTO-TROL TECHNOLOGY CORPORATION
Attest:
By:
-------------------- -------------------------------
Secretary
AT DEVELOPMENT, INC.
Attest:
By:
-------------------- -------------------------------
Secretary
METAWARE, INC. d.b.a. CENTRA 2000, INC.
Attest:
By:
-------------------- -------------------------------
Secretary
Plan of Merger 22
<PAGE>
SCHEDULE A (5.02) CENTRA WARRANTS, OPTIONS, AGREEMENTS ETC.
None
SCHEDULE B (5.05[b]) CENTRA FINANCIAL STATEMENTS
Incorporated by reference to original documents supplied to Auto-trol
Technology Corporation during merger negotiations
SCHEDULE C (5.09) CENTRA BANK ACCOUNTS/CERTIFICATES OF DEPOSIT
Nations Bank of Texas, N.A.
Nassau Bay
P.O. Box 2518
Houston, Texas 77252-2518
Account #266-117047-1
Centra 2000, Inc. has no other bank accounts, investment accounts or
certificates of deposit.
SCHEDULE D (5.10) CENTRA LIABILITIES
Liability insurance $ 1,000 Estimated
Accrued FTO 25,854 Actual
Property Tax Exposure 2,000 Estimated
Harris County Sales Tax 1,000 Estimated
Non-payment of HP lease 10,440 Estimated
PC Software Exposure 2,500 Estimated
Software Maintenance Agreements 10,000 Estimated
Employee Loan Reserve 15,378 Actual
ATTC Loan 300,000 Actual
Material Agreements Amounts owed
thereunder
SCHEDULE E (5.11) CENTRA TAX LIABILITIES
There may be certain liabilities associated with property taxes as
reported in Schedule D.
Centra 2000, Inc. tax returns have been prepared by Craig H. Tompkins,
16872 Royal Crest Drive, Houston, Texas 77058 (713)480-8552. The 1993 and
1994 U.S. Corporation Income Tax returns have been provided to Auto-trol
Technology to approve prior to submittal.
SCHEDULE F (5.12) CENTRA TRADEMARKS, REGISTERED COPYRIGHTS, TRADE SECRETS
Centra has applied for registration of the product name "CENTRA 2000"
with the United States Patent and Trademark Office.
Centra has State statutory and common law rights in the name
"Metaware", but has not applied for registration of that name as a
trademark.
SCHEDULE G (5.12) CENTRA THIRD PARTY LICENSES
1. OEM Software License Agreement with Auto-trol Technology dated
4/12/94
Plan of Merger 23
<PAGE>
2. Oracle VAR Agreement dated July 19, 1993
3. Sybase Value Added Remarketer Agreement dated September 16, 1994
4. Licenses for miscellaneous software tools, operating systems etc.
that are not incorporated into the product
SCHEDULE H (5.13) CENTRA INSURANCE POLICIES
Centra has no insurance policies other than personnel medical and long-
term disability insurance plans.
SCHEDULE I (5.14; 10.07[C] ) CENTRA LEGAL PROCEEDINGS
None
SCHEDULE J (5.16) CENTRA BENEFIT PLANS
None
SCHEDULE K (5.17) CENTRA MATERIAL TRANSACTIONS
None
SCHEDULE L (5.18) CENTRA ADVERSE RELATIONSHIPS
Centra recently purchased 2,738 shares of Centra Stock formerly held by
Jack Eidson for $6,610.50
SCHEDULE M (5.19) CENTRA MATERIAL AGREEMENTS
1. HP Lease Agreement Number 4131-48238
2. OEM Software License Agreement with Auto-trol Technology dated
4/12/94
3. Sybase Value Added Remarketer Agreement dated September 16, 1994
4. Sun Hardware Maintenance Agreement No. inb0412.2 dated 4/20/95
5. Oracle VAR Agreement dated July 19, 1993
6. Software Loan Agreement dated march 27, 1995, between ATTC and
Centra for Tech Illustrator
7. SUN Software License Agreement dated June 22, 1993
8. Cooperative Software Program for PTC Agreement No. 10531
9. Office Lease Agreement, Suite 202, NASA Office Building dated 7/1/94
10. Starmark Long Term Disability Group AE20307 H
11. Consolidated Group Insurance B485538
12. Lanier Copier Payment Account No. 1558753
SCHEDULE N (4.04; 4.05) DEVELOPMENT PLAN
CENTRA 2000 FUNCTIONALITY TO RECEIVE 4TH YEAR BONUS
As an independent subsidiary, it will continue to be the responsibility of the
Centra 2000 team to:
a) Receive requirements from ATTC--both Corporate and the field offices
b) Generate requirements based on Centra 2000 employee experience
c) Document and implement the requirements in the Centra 2000 software
improvement branch of our Centra development support data base
d) Design and implement the requirements per the schedule developed by
Centra 2000. This schedule will be developed with input from the Product
Manager and be primarily based on the need date of the requirements.
e) Test the functionality and deliver the functionality to ATTC corporate
for final testing and release
The following requirements will be implemented to achieve eligibility for the
fourth year bonus:
1) REMOTE SERVER REPLICATION
The requirement is to provide access to the master database (metadata
and files) from remote locations that do not have a network connection (or
that the network connection does not have the capacity). Updates to the
master database need to be available to remote locations. Data from remote
locations needs to be available to the master database.
Roll-out phases will be based on detail design and available at completion
of the design phase.
2) DISTRIBUTED SERVERS
The requirement is to distribute the load on the server and/or the
network in order to optimize performance. Distributed servers should
support a variety of network configurations and the ability to backup
servers in case of down time.
Roll-out phases will be based on detail design and available at completion
of the design phase.
3) PRODUCT DATA MANAGEMENT
Product Structure Creation/Modification-- Hierarchical product tree with
the ability to create standard and unique components. Components must be
designated as an alternated or replacement component. Components and the
product tree as a whole must be able to support searches, bill of material
support, copying and manipulating by date effectively, release level, as-
designed, as produced, serial number, lot number, status.
Viewing--Product structures need to be viewed by release, by date
effectively, by status, by serial number, with/without standard, unique and
replacement parts.
Product structures must be able to be viewed graphically.
Roll-out phases
Phase 1- Including a boolean query on the branch class and RIL class
causing the display for the selected branch to change. Also interface in
the BOM. Release 2.2.
Future phases will be defined after detail design is complete.
4) USER CUSTOMIZATION
User Defined Forms- Forms Editor in 3.0 and 4.0
User Interface Additions/Alterations
Event Triggers-Performs associated with workflow tasks
Roll-out phases for each capability will be scheduled as detail design
completes.
5) CAD INTERFACE
CAD Interface requires three categories:
CAD Incapsulation will be maintained
Data and File Modeling-
Automatically build Group Items from CAD systems
Automatically populate metadata from CAD data
Automatically build product structures from CAD
CAD Interface-
From within CAD system, launch PDM functions
Roll-out phases will be defined when detail design is complete.
Plan of Merger 24
<PAGE>
SCHEDULE O (6.02) AUTO-TROL WARRANTS, OPTIONS, AGREEMENTS, ETC.
Auto-trol has outstanding grants of incentive stock options to key
employees in the amount of 580,610 shares of Common Stock.
240,605 shares are reserved and available for purchase under Auto-trol's
Employee Stock Purchase Plan.
SCHEDULE P (6.08; 11.04[E]) AUTO-TROL AND SUBSIDIARY LITIGATION
As to Auto-trol: NONE
As to Subsidiary: NONE
SCHEDULE Q (4.03) AUTO-TROL INCENTIVE STOCK OPTION PLAN
ATTACHED
Plan of Merger 25
<PAGE>
AUTO-TROL TECHNOLOGY CORPORATION
INCENTIVE STOCK OPTION PLAN
(Revised effective September 1, 1994)
I. PURPOSE
This Auto-trol Technology Corporation Incentive Stock Option Plan (the
"Plan") provides for the grant of Stock Options to Key Employees of Auto-
trol Technology Corporation ("the Company") and its Participating
Subsidiaries in order to advance the interests of the Company and its
Participating Subsidiaries through the motivation, attraction and retention
of their Key Employees. This Plan is intended to qualify options granted
hereunder as Incentive Stock Options under Section 422A Internal Revenue
Code of 1986, as amended.
II. ADMINISTRATION
2.1 Committee
---------
The Plan shall be administered by the Compensation Committee of the
Company (the "Committee") which shall be composed of at least two (2)
or more members of the Board of Directors of the Company (the
"Board"), all of whom shall be Disinterested Persons. The Committee
shall have full authority to administer the Plan, including authority
to interpret and construe any provision of the Plan and to adopt such
rules and regulations for administering the Plan as it may deem
necessary in order to comply with the requirements of the Plan. The
Committee may delegate any of its responsibilities under the Plan,
other than its responsibilities to grant Stock Options, or to
interpret and construe the Plan.
2.2 Actions of the Committee
------------------------
All actions taken and all interpretations and determinations made by
the Committee in good faith (including determinations of Fair Market
Value) shall be final and binding upon all Key Employees and the
Company. No member of the Committee shall be personally liable for any
action, determination or interpretation made in good faith with
respect to the Plan and all members of the Committee shall, in
addition to their rights as directors of the Company, be fully
protected by the Company with respect to any such action,
determination or interpretation.
Plan of Merger 26
<PAGE>
III. DEFINITIONS
3.1 "Stock Option"
--------------
A Stock Option is the right granted by the Committee to a Key Employee
to purchase the number of shares of Common Stock at such time or times
as determined by the Committee.
3.2 "Key Employee"
--------------
A Key Employee is an employee of the Company or any Participating
Subsidiary whose judgment, initiative and continued efforts are
expected to contribute to the successful conduct of the business of
the Company or any Participating Subsidiary, and who has been employed
by the Company or any Participating Subsidiary for more than three (3)
months prior to the grant of the Stock Option.
3.3 "Participating Subsidiary"
--------------------------
A Participating Subsidiary is any subsidiary of the Company meeting
the definition of Section 425(f) of the Internal Revenue Code of 1986,
as amended (the "Code").
3.4 "Incentive Stock Option"
------------------------
An Incentive Stock Option is an option which qualifies for treatment
as an incentive stock option pursuant to Section 422A of the Code, as
amended from time to time.
3.5 "Disinterested Person"
----------------------
A Disinterested Person shall have the meaning set forth in Rule 16b-
3(c)(2)(i) and its successor promulgated under the Securities Exchange
Act of 1934.
3.6 "Fair Market Value"
-------------------
The Fair Market Value of a share of Common Stock on any date shall be
the average of the representative highest and lowest prices, as quoted
by the National Association of Securities Dealers through NASDAQ, for
the date in question, or, if the Common Stock is listed on a national
stock exchange, the average of the highest and lowest officially-
quoted prices on such exchange on the date in question.
3.7 "Common Stock"
--------------
A share of Common Stock means a share of authorized but unissued or
reacquired $.01 par value common stock of the Company.
3.8 "Option Price"
--------------
Option Price is the Fair Market Value of the Common Stock on the date
that the Stock Option is granted.
Plan of Merger 27
<PAGE>
IV. ELIGIBILITY AND PARTICIPATION
4.1 Grants
------
Grants of Stock Options may be made to Key Employees of the Company or
any participating Subsidiary. Any director of the Company or of a
Participating Subsidiary who is also a Key Employee shall also be
eligible to receive Stock Options, but no member of the Committee
shall be eligible to receive Stock Options. The Committee shall from
time to time determine the Key Employees to whom Stock Options shall
be granted, the number of Stock Options to be granted to each such Key
Employee, and the terms and provisions of such Stock Options. Each
Stock Option grant shall be evidenced by a written agreement between
the Company and a Key Employee (the "Incentive Stock Option
Agreement") containing such terms and provisions as the Committee may
determine in accordance with the provisions of this Plan. The
aggregate Fair Market Value (determined at the time of grant of a
Stock Option) of the Common Stock exercisable for the first time by a
Key Employee during any calendar year shall not exceed one hundred
thousand dollars ($100,000). The purchase price for each share of
Common Stock shall be the Option Price on the date on which the Stock
Option is granted.
4.2 Exchange for Options under this Plan
------------------------------------
The Committee may grant Stock Options to replace options previously
granted to Key Employees who hold options to purchase Common Stock
under other stock option or performance share plans ("Replacement
Stock Options") Key Employees, in their sole discretion, may within
thirty (30) days following execution of the Incentive Stock Option
Agreement, consent to the conversion of options granted under any such
previous plans. Replacement Stock Options granted pursuant to this
Section 4.2 shall be granted in the ratio of a Stock Option to
purchase one share of Common Stock for each option under such
applicable previous plans. The price for each such Replacement Stock
Option shall be the Option Price of Common Stock on the date that the
Stock Option is granted. The Committee, in its sole discretion, may
vary the terms and conditions of Replacement Stock Options offered in
exchange for options under such previous plans, subject to the same
limitations imposed on grants of new Replacement Stock Options under
this Plan.
V. SHARE OF COMMON STOCK SUBJECT TO THE PLAN
5.1 Maximum Number
--------------
The maximum, aggregate number of shares of Common Stock that may be
made subject to Stock Options granted under the Plan shall be one
million three hundred and fifty thousand (1,350,000) under this Plan,
and the Company's Special Purpose Stock Option Plan, as determined
from time to time to be appropriate by the Committee. In no event
shall the total amount of shares for which options are granted under
both Plans exceed 1,350,000 shares. If any shares of Common Stock
subject to Stock Options are not purchased or otherwise paid for
before such Stock Options expire, such shares may again be made
subject to Stock Options.
5.2 Capital Changes
---------------
In the event any changes are made to the shares of Common Stock
(whether by reason of merger, consolidation, reorganization,
recapitalization, stock dividend in excess of ten percent (10%) at any
single time, stock split, combination of shares, exchange of shares,
change in corporate structure or otherwise), appropriate adjustments
shall be made in the number of shares of Common Stock theretofore made
subject to Stock Options. If any of the foregoing adjustments shall
result in a fractional share, the fraction shall be disregarded. All
adjustments to the number of Stock Options granted as a result of
Plan of Merger 28
<PAGE>
application of this Section must be made to conform with the
requirements set forth in Section 425(a) of the Code.
5.3 Compliance with Securities Law
------------------------------
The Company is under no obligation to register or to maintain any
registration of the shares subject to these options under the
Securities Act of 1933, or any state securities law. If the shares are
not so registered, they may be sold and issued to the Key Employee
only pursuant to applicable exemptions from the registration
requirements of such laws, which may include an exemption for
transactions not involving a public offering. The Company may endorse
or cause to be endorsed on such certificate or certificates an
appropriate legend referring to the foregoing restrictions, if
applicable.
VI. EXERCISE OF STOCK OPTIONS
6.1 Date of Exercise
----------------
Except as provided below and in Section 6.3, Stock Options may be
exercised at the dates, and in the quantities in accordance with the
schedule set forth below:
Maximum
Number of Options
Exercisable
(Cumulative)
Date of Exercise ------------
First Anniversary of Grant of Stock Option 20%
Second Anniversary of Grant of Stock Option 20%
Third Anniversary of Grant of Stock Option 20%
Fourth Anniversary of Grant of Stock Option 20%
Fifth Anniversary of Grant of Stock Option 20%
A Stock Option shall expire, to the extent not exercised, on the tenth
anniversary of the date on which it was granted. Any shares of Common
Stock not purchased at the time a Stock Option first becomes
exercisable shall remain exercisable at any time until the Stock
Option expires. The schedule set forth above shall be applied
separately to each Stock Option granted to a Key Employee. The
Committee may, in its discretion, establish provisions for the
exercise of Stock Options different from those described above.
6.2 Exchange of Outstanding Stock
-----------------------------
The Committee, in its sole discretion, may permit a Key Employee to
surrender to the Company shares of Common Stock previously acquired by
the Key Employee as part or full payment for the exercise of a Stock
Option. Such surrendered shares shall be valued at their Fair Market
Value as of the date they are tendered to the Company.
6.3 Termination of Employment Before Exercise
-----------------------------------------
If a Key Employee's employment with the Company or a Participating
Subsidiary shall terminate by reason of the Key Employee's death or
disability, any Stock Option then held by the Key Employee shall
remain exercisable for a period of six (6) months following such
termination, to the extent such Stock Option is then exercisable as
provided in Section 6.1 or which Stock Option becomes exercisable
during the six-month period following such termination. If a Key
Employee's employment with the Company or a Participating Subsidiary
shall terminate for any reason other than the Key Employee's death or
disability, any Stock Option then held by the Key Employee shall
remain exercisable after the termination of his or her employment for
a period of thirty (30) days, to the extent such Stock Option was
exercisable as provided in Section 6.1 as of the date of termination.
During such periods, Stock Options shall be exercisable to the maximum
Plan of Merger 29
<PAGE>
extent permitted by Section 422A of the Code and regulations issued
thereunder as then in effect. If the Stock Option is not exercised
during the applicable period, it shall be deemed to have expired and
be of no further force or effect.
6.4 Availability of Stock Previously Subject to Option
--------------------------------------------------
Any shares of Common Stock which were subject to Stock Options, but
such Stock Options have expired, shall again be available for
purposes of granting Stock Options under this Plan.
VII. NO CONTRACT OR EMPLOYMENT
Nothing in this Plan or in the Incentive Stock Option Agreement shall
confer upon the Key Employee the right to continue in the employ of the
Company or any Participating Subsidiary, nor shall it interfere in any way
with the right of the Company or any such Participating Subsidiary to
discharge the Key Employee at any time for any reason whatsoever, with or
without cause.
VIII. RIGHTS AS A SHAREHOLDER
A Key Employee shall have no rights as a shareholder with respect to any
shares of Common Stock subject to Stock Options granted to him or her
under the Plan. No adjustments shall be made for dividends, distributions
or other rights (for which the record date is prior to the date of
exercise) to any shares of Common Stock issued to a Key Employee upon
exercise of a Stock Option.
IX. COMPLIANCE WITH SECURITIES LAWS
With regard to any Stock Option awarded under this Plan, or any rights
acquired by a Key Employee under this Plan, the recipient shall comply
with the six-month holding period requirements of Rule 16b-3(c)(1), and
its successor promulgated under the Securities Exchange Act of 1934, and
with applicable state securities laws, with regard to the holding of Stock
Options and/or Common Stock.
X. ASSIGNABILITY; EXERCISE
No Stock Option awarded under this Plan, or any rights acquired by a Key
Employee under this Plan, shall be assignable or transferable by a Key
Employee other than by will or applicable law of intestate succession.
During a Key Employee's lifetime, Stock Options may only be exercised by
such Key Employee.
XI. MERGER OR LIQUIDATION OF THE COMPANY
In the event the Company or its controlling shareholders enter into an
agreement to dispose of all, or substantially all, of the assets or
outstanding capital stock of the Company by means of a sale or
liquidation, or a merger or reorganization in which the Company is not the
surviving corporation ("Change of Control"), then options granted
hereunder and otherwise exercisable in the twenty-four (24) month period
following the date on which the Change of Control takes place shall for
all purposes be exercisable as of the day before such Change of Control
takes place, even though the dates upon which such options are otherwise
exercisable have not yet occurred. No portion of a Stock Option shall
become exercisable hereunder after termination of the Key Employee's
employment with the Company except as provided in Section 6.3 above.
Plan of Merger 30
<PAGE>
XII. WITHHOLDING TAXES
The Company or any Participating Subsidiary will take such steps for the
withholding of any taxes which the Company or any Participating Subsidiary
is required, by law or regulation of any governmental authority, to
withhold in connection with the exercise of any Stock Option. Such steps
include, but are not limited to, the withholding of issuance of shares of
Common Stock to be issued upon exercise of any Stock Option, until the Key
Employee reimburses the Company or any Participating Subsidiary for the
amount the Company or any Participating Subsidiary is required to withhold
with respect to such taxes, or reacquiring any portion of such exercise in
an amount sufficient to reimburse itself for the amount it is required to
so withhold.
XIII. AMENDMENT
The Board may from time to time alter, amend, suspend or discontinue the
Plan, provided, however, that no such action shall adversely affect the
rights and obligations with respect to Stock Options outstanding under the
Plan, and provided further that no such action shall, without the approval
of the shareholders of the Company, (i) increase the maximum number of
shares of Common Stock that may be made subject to Stock Options (unless
such increase is necessary to affect the adjustments required by Section
5.2); or (ii) materially increase the benefits accruing to Key Employees
under the Plan; or (iii) materially modify the requirements of eligibility
for participation in the Plan.
XIV. EFFECTIVE DATE
The Plan shall become effective as of the date of its adoption by the
Board, provided it is approved by the shareholders of the Company within
twelve (12) months after that date. Amendments to the Plan shall become
effective as of the date such amendments are adopted by the Board. If such
amendments require shareholder approval in accordance with Section XII of
this Plan, such amendments shall nonetheless become effective as of the
date of their adoption by the Board, conditioned upon approval by the
shareholders of the Company within twelve (12) months after that date.
Plan of Merger 31
<PAGE>
SCHEDULE R (6.11; 7.09) AUTO-TROL AND SUBSIDIARY TRANSACTIONS WITH CERTAIN
PERSONS
As of June 28, 1995, Auto-trol has outstanding debt in the amount of
$3,750,000 payable to Venhill
Subsidiary: NONE
SCHEDULE S (NO SECTION REFERENCE) ARTICLES OF INCORPORATION OF EACH PARTY TO THE
AGREEMENT
Auto-trol Technology Corporation incorporated by reference from
Registration Statement No. 2-63253, filed January 24, 1979.
AT Development Inc. attached
Centra 2000, Inc. attached
Plan of Merger 32
<PAGE>
ARTICLES OF INCORPORATION
OF
AT DEVELOPMENT, INC.
ARTICLE I.
The name of the corporation is AT Development, Inc.
ARTICLE II.
The corporation is incorporated pursuant to the laws of the State of
Colorado.
ARTICLE III.
The period of duration of the corporation shall be perpetual.
ARTICLE IV.
The purposes for which the corporation is organized and its powers are
as follows:
1. To engage in the transaction of all lawful business and to pursue
all lawful purposes for which a corporation may be incorporated pursuant to
the laws of the State of Colorado.
2. To have, enjoy and exercise all of the rights, powers and
privileges conferred upon corporations incorporated pursuant to the laws of
the State of Colorado, whether now or hereafter in effect, and whether or
not herein specifically mentioned.
The foregoing enumeration of purposes and powers shall not limit or
restrict in any manner the transaction of other business, the pursuit of other
purposes, or the exercise of other and further rights and powers which may now
or hereafter be permitted or provided by law.
ARTICLE V.
1. The total number of shares that the corporation shall have
authority to issue is 1,000 shares, which shall consist of one class only,
designated "common stock." Each of such shares shall have a par value of $1.00.
2. The corporation shall have the right to impose restrictions on the
transfer of all, or any part of, its shares and may become a party to agreements
entered into by any of its shareholders restricting transfer or encumbrance of
any of its shares or subjecting any of its shares to repurchase or resale
obligations.
ARTICLE VI.
Shareholders shall have no preemptive rights to acquire unissued or
treasury shares of the corporation, securities convertible into such shares or
carrying a right to subscribe to or acquire shares, or stock options.
ARTICLE VII.
By the affirmative vote or concurrence of the holders of a majority of
the outstanding shares of the corporation, or any class or series thereof, the
shareholders may take any action which, but this Article, would require the
affirmative vote or concurrence of the holders of two-thirds of the
Plan of Merger 33
<PAGE>
outstanding shares of the corporation, or of any class or series thereof, under
the Colorado Corporation Code, as amended.
ARTICLE VIII.
1. The business and affairs of the corporation shall be managed by a
board of directors, which shall be elected at the annual meeting of the
shareholders or at a special meeting called for that purpose.
2. The initial board of directors shall consist of the following
members, who shall serve until the first annual meeting of shareholders and
until their successors are elected and qualified.
DIRECTOR ADDRESS
Paul Jerde 12500 North Washington Street
Denver, Colorado 80241-2400
H. William Taylor 12500 North Washington Street
Denver, Colorado 80241-2400
J. Bruce Hanley 12500 North Washington Street
Denver, Colorado 80241-2400
3. The number of directors may be increased or decreased from time to
time in the manner provided in the bylaws of the corporation, but no decrease
shall have the effect of shortening the term of any incumbent director.
ARTICLE IX.
Cumulative voting shall not be permitted in the election of directors.
ARTICLE X.
The corporation may from time to time distribute to its shareholders,
in partial liquidation, out of its stated capital or capital surplus, a portion
of its assets in cash or property.
ARTICLE XI.
The initial registered office of the corporation shall be 1700
Broadway, Denver, Colorado 80290 and the initial registered agent at such
address shall be The Corporation Company.
ARTICLE XII.
No contract or other transaction between the corporation and one or
more of its directors or any other corporation, partnership, joint venture,
association, trust or other entity in which one or more of its directors are
directors or officers or are in any similar managerial or fiduciary positions or
are financially interested shall be either void or voidable solely because of
such relationship or interest or solely because such directors are present at
the meeting of the board of directors or a committee designated thereby which
authorizes, approves or ratifies such contract or transaction or solely because
their votes are counted for such purpose, if: (a) the fact of such relationship
or interest is disclosed or known to the board of directors or committee which
authorizes, approves or ratifies the contract or transaction by a vote or
consent sufficient for the purpose without counting the votes or consents of
such interested directors; or (b) the fact of such relationship or interest is
disclosed or known to the shareholders entitled to vote, and the holders of a
majority of the shares entitled to vote authorize, approve
Plan of Merger 34
<PAGE>
or ratify such contract or transaction by vote or written consent' or (c) the
contract or transaction is fair and reasonable to the corporation; or (d) the
laws of the State of Colorado in effect from time to time otherwise provide that
the contract or transaction shall not be void or voidable because of such
relationship. Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the board of directors or a committee
thereof which authorizes, approves or ratifies such contract or transaction.
ARTICLE XIII.
1. To the fullest extent specifically permitted or provided by the
Colorado Corporation Code, as amended from time to time, the corporation shall
indemnify any person against all liability and expense incurred by reason of the
fact that he is or was a director or officer of the corporation or, while
serving as a director or officer of the corporation, he is or was serving at the
request of the corporation as a director, officer, partner or trustee of, or in
any similar managerial or fiduciary position of, or as an employee or agent of,
another corporation, partnership, joint venture, trust, association or other
entity. In addition to the foregoing obligation of indemnification, and with a
view to giving the persons covered by these provisions the broadest possible
indemnity, the corporation shall also indemnify persons as provided in the
succeeding paragraphs of this Article XIII.
2. The corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation), by
reason of the fact that he is or was a director or officer of the corporation
or, while serving as a director or officer of the corporation, he is or was
serving at the request of the corporation as a director, officer, partner or
trustee of, or in any similar managerial or fiduciary position of, or as an
employee or agent of, another corporation, partnership, joint venture, trust,
association or other entity, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him in connection with such action, suit or proceeding if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement or
conviction or upon a plea of nolo contendere or its equivalent shall not of
itself create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the corporation and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
3. The corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the corporation to procure a judgment in
its favor by reason of the fact that he is or was a director or officer of the
corporation or, while serving as a director or officer of the corporation, he is
or was serving at the request of the corporation as a director, officer, partner
or trustee of, or in any similar managerial or fiduciary position of, or as an
employee or agent of, another corporation, partnership, joint venture, trust,
association or other entity against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation; but no such indemnification shall be made in respect of any claim,
issue or matter as to which such person has been adjudged to be liable for
negligence or misconduct in the performance of his duty to the corporation
unless, and then only to the extent that, the court in which such action or suit
was brought determines upon application that, despite the adjudication of
liability, but in view of all circumstances of the case, such person is fairly
and reasonably entitled to indemnification for such expenses which such court
deems proper.
4. To the extend that a person entitled to indemnity under paragraph
2 or 3 of this Article XIII has been successful on the merits in defense of any
action, suit or proceeding referred to in
Plan of Merger 35
<PAGE>
paragraph 2 or 3 of this Article XIII or in defense of any claim, issue or
matter therein, he shall be indemnified against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection therewith.
5. Any indemnification under paragraph 2 or 3 of this Article XIII
(unless ordered by a court) shall be made by the corporation only as authorized
in the specific case upon a determination that indemnification of the person
seeking indemnification is proper in the circumstances because he has met the
applicable standard of conduct set forth in said paragraph 2 or 3. Such
determination shall be made by the board of directors by a majority vote of a
quorum consisting of directors who were not parties to such action, suit or
proceeding, or, if such a quorum is not obtainable, or even if obtainable, a
quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or by the shareholders.
6. Expenses (including attorneys' fees) incurred in defending a civil
or criminal action, suit or proceeding may be paid by the corporation in advance
of the final disposition of such action, suit or proceeding as authorized in
paragraph 5 of this Article XIII upon receipt of an undertaking by or on behalf
of the person seeking the advance to repay such amount unless it is ultimately
determined that he is entitled to be indemnified by the corporation against such
expenses pursuant to this Article XIII.
7. The indemnification provided by this Article XIII shall not be
deemed exclusive of any other rights to which those indemnified may be entitled
under these articles of incorporation, any bylaw, agreement, vote of
shareholders or disinterested directors or otherwise, and any procedure provided
for by any of the foregoing, both as to action in his official capacity and as
to action in another capacity while holding such office, and shall continue as
to a person who has ceased to be in the position which entitled him to such
indemnification and shall inure to the benefit of heirs, executors and
administrators of such a person. The provisions of this Article XIII shall not
be deemed to preclude the corporation from indemnifying other persons from
similar or other expenses and liabilities as the board of directors or the
shareholders may determine in a specific instance or by resolution of general
application.
8. The corporation may purchase and maintain insurance on behalf of
any person who is or was a director, officer, employee, fiduciary or agent of
the corporation or who is or was serving at the request of the corporation as a
director, officer, partner or trustee, or in any similar managerial or fiduciary
position, or as an employee or agent, of another corporation, partnership, joint
venture, trust, association or other entity, or any other person against any
liability asserted against hem and incurred by him in any such capacity or
arising out of his status as such, whether or not he would be entitled to
indemnification under the provisions of the Article XIII.
ARTICLE XIV.
The name and address of the incorporator, who is a natural person of
the age of eighteen years or more is:
Margery Hinterman 2600 Colorado National Building
950 17th Street
Denver, Colorado 80202
I, Margery Hinterman, hereby affirm under penalties of perjury, that I
have executed these Articles of Incorporation on November 1, 1984, and that the
facts stated herein are true.
Plan of Merger 36
<PAGE>
ARTICLES OF INCORPORATION OF
METAWARE, INC.
The undersigned natural person of the age of eighteen (18) years or more acting
as incorporator of a corporation under the Texas Business Corporation Act,
hereby adopts the following Articles of Incorporation for such corporation:
ARTICLE ONE
The name of the corporation is MetaWare, Inc.
ARTICLE TWO
The period of its duration is perpetual.
ARTICLE THREE
The purposes for which the corporation is organized are:
(1) To buy, sell, lease, and deal in services, personal property, and real
property subject to Part Four of the Texas Miscellaneous Corporation Laws
Act.
(2) To engage in any activity permitted to corporations under the laws of the
State of Texas or any other state in which the corporation may transact
business.
(3) To transact any and all lawful business for which corporations may be
incorporated under the Texas Business Corporation Act.
ARTICLE FOUR
The aggregate number of shares which the corporation shall have authority to
issue is 1,000,000 shares without par value.
ARTICLE FIVE
The corporation will not commence business until it has received for the
issuance of its shares consideration of the value of one thousand dollars
($1000), consisting of money, labor done, or property actually received.
ARTICLE SIX
The street address of its initial registered office is 2520 Masters Drive,
League City, Texas 77573, and the name of its initial registered agent at such
address is Susan L. Floyd.
ARTICLE SEVEN
The number of Directors constituting the initial Board of Directors is two, and
the names and addresses of the persons who are to serve as Directors until the
first annual meeting of the shareholders or until their successors are elected
and qualified are:
Susan L. Floyd Charles W. Floyd
2520 Masters Drive 2520 Masters Drive
League City, Texas 77573 League City, Texas 77573
Plan of Merger 37
<PAGE>
ARTICLE EIGHT
The name and address of the incorporator is:
Susan L. Floyd
2520 Masters Drive
League City, Texas 77573
END OF ARTICLES OF INCORPORATION
IN WITNESS WHEREOF, the undersigned has executed these Article of Incorporation
on this 22 day of February, 1993.
/s/ Susan L Floyd
-----------------
Susan L. Floyd
STATE OF TEXAS
COUNTY OF ______________
I, a Notary Public, do hereby certify that on this 22 day of February, 1993,
personally appeared before me, Susan L. Floyd, who being by me first duly sworn,
declared that she is the person who signed the foregoing document as
incorporator, and that the statements therein contained are true.
/s/ Monika M. Gay
-----------------
Notary's Printed Name:
Monika M. Gay
-------------
Notary Public in and for the State of Texas
My Commission expires the 12 day of
September, 1993.
Plan of Merger 38
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> JUN-30-1995
<PERIOD-START> JAN-01-1995
<PERIOD-END> JUN-30-1995
<CASH> 11,533
<SECURITIES> 0
<RECEIVABLES> 41,681
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 53,214
<PP&E> 159,292
<DEPRECIATION> 53,300
<TOTAL-ASSETS> 172,443
<CURRENT-LIABILITIES> 130,172
<BONDS> 300,000
<COMMON> 1,000
0
0
<OTHER-SE> (258,729)
<TOTAL-LIABILITY-AND-EQUITY> (257,729)
<SALES> 187,034
<TOTAL-REVENUES> 238,530
<CGS> 40,401
<TOTAL-COSTS> 40,401
<OTHER-EXPENSES> 641,358
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 30,875
<INCOME-PRETAX> (474,104)
<INCOME-TAX> 0
<INCOME-CONTINUING> (474,104)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (474,104)
<EPS-PRIMARY> 1.59
<EPS-DILUTED> 1.59
</TABLE>
