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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
CURRENT REPORT
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Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
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Date of Report (Date of earliest event reported): March 2, 2000
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SENTO CORPORATION
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(Exact name of registrant as specified in its charter)
UTAH 000-06425 87-0284979
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(State or other jurisdiction (Commission (IRS Employer
of incorporation) File No.) Identification No.)
808 EAST UTAH VALLEY DRIVE
AMERICAN FORK, UT 84003
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(Address of principal executive offices, including zip code)
(801) 492-2000
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(Registrant's telephone number, including area code)
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TABLE OF CONTENTS
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS ............... 1
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS .................. 2
EXHIBITS ........................................... 2
SIGNATURE .................................................. 3
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
On March 2, 2000 (the "Closing Date"), Sento Corporation, a Utah
corporation (the "Company"), and EchoPass Corporation, a Delaware corporation
("EchoPass"), closed that certain Amended and Restated Contribution Agreement
dated as of March 1, 2000, between the Company and EchoPass (the "Contribution
Agreement"). The transactions consummated pursuant to the Contribution
Agreement, as well as transactions relating to the Company's transactions with
EchoPass that also closed on or after March 2, 2000, consisted of the following
(collectively, the "EchoPass Transactions"):
(i) the Company transferred to EchoPass all of the technology
developed or acquired by or licensed to the Company as part of the
technical infrastructure used by the Company in the operation of the
Company's Customer Contact Center (the "Technology") in exchange for
4,000,000 shares of the Series A Convertible Preferred Stock, $.0001 par
value per share, of EchoPass (the "EchoPass Series A Preferred"),
representing approximately 26% of the issued and outstanding shares of the
common stock of EchoPass (the "EchoPass Common Stock") immediately
following the consummation of the EchoPass Transactions (after giving
effect to the conversion of the shares of EchoPass Series A Preferred
issued to the Company and Genesys Telecommunications Laboratories, Inc.
("Genesys"), and the shares of the Series B Convertible Preferred Stock of
EchoPass (the "EchoPass Series B Preferred") issued to New Enterprise
Associates ("NEA"), Canaan Partners ("Canaan") and others in the EchoPass
Transactions);
(ii) the Company and EchoPass entered into a Services Agreement, dated
as of March 1, 2000, enabling the Company to utilize the Technology (at
most favored customer pricing) in developing its existing and future
eCustomer Contact Centers (the "Services Agreement");
(iii) the Company transferred to EchoPass certain tangible assets (the
"Tangible Assets" and together with the Technology, collectively, the
"Assets"), consisting primarily of computer equipment, in exchange for
EchoPass' payment of $1,141,326.20 in cash to the Company;
(iv) EchoPass transferred to Genesys 1,000,000 shares of EchoPass
Series A Preferred in exchange for $2,000,000 in cash;
(v) EchoPass transferred to NEA and Canaan certain shares of the
EchoPass Series B Preferred in exchange for an aggregate of approximately
$22.7 million; and
(vi) A total of 22 employees of the Company, including Arthur F.
Coombs, III, the Company's Chief Executive Officer, and Keith Barr, the
Company's Chief Information Officer, resigned as employees of the Company
and became employees of EchoPass.
Certain directors and officers of the Company had material relationships
with EchoPass on the Closing Date. In particular, EchoPass was formed by
certain directors, officers and employees of the Company. Furthermore,
immediately following the consummation of the EchoPass Transactions certain
existing directors, officers and employees of the Company owned 915,000
shares of EchoPass Common Stock representing an aggregate of approximately 6%
of the issued and outstanding shares of EchoPass Common Stock as of such date
(after giving effect to the conversion of the shares of EchoPass Series A
Preferred to be issued to the Company and the shares of EchoPass Series B
Preferred issued to NEA, Canaan and others in the EchoPass Transactions). In
addition, prior to the Closing Date, three of the Company's directors also
served as directors of EchoPass; however, subsequent to the Closing Date only
one of the Company's directors will continue to serve as a director of
EchoPass. Also as of the Closing Date, Genesys owned 162,502 shares of common
stock of the Company (the "Company Common Stock") and exercisable warrants to
acquire an additional 81,251 shares of Company Common Stock, representing an
aggregate of approximately 3% of the outstanding shares of Company Common
Stock.
The consideration received by the Company in exchange for the Assets was
determined through negotiations between the Company and EchoPass, based upon the
value of the Assets. In addition, the Company relied upon an
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opinion of Alliant Partners (the "Alliant Opinion"), that based upon and subject
to the factors and assumptions set forth in the Alliant Opinion, the transfer of
the Assets made by the Company to EchoPass in the EchoPass Transactions was
fair, from a financial point of view, to the Company's shareholders.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
EXHIBITS.
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<CAPTION>
Reg. S-B
Exhibit No. Exhibit Exhibit No.
<S> <C> <C>
2.1 -- Amended and Restated Contribution 1
Agreement
99.1 -- Press Release dated March 2, 2000 2
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this Current Report to be signed on its behalf by the
undersigned thereunto duly authorized.
SENTO CORPORATION
/s/ Stanley J. Cutler
-------------------------------------
Name: Stanley J. Cutler
Title: Corporate Controller and
Corporate Secretary
Date: March 17, 2000
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EXHIBIT 2.1
AMENDED AND RESTATED CONTRIBUTION AGREEMENT
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AMENDED AND RESTATED
CONTRIBUTION AGREEMENT
Between
SENTO CORPORATION, a Utah corporation
and
ECHOPASS CORPORATION, a Delaware corporation
March 1, 2000
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AMENDED AND RESTATED CONTRIBUTION AGREEMENT
THIS AMENDED AND RESTATED CONTRIBUTION AGREEMENT (this "Agreement") is made
as of March 1, 2000, between SENTO CORPORATION, a Utah corporation
("CONTRIBUTOR") and ECHOPASS CORPORATION, a Delaware corporation
("CONTRIBUTEE").
BACKGROUND
Contributor and Contributee executed a Contribution Agreement dated as of
November 17, 1999 (the "CONTRIBUTION AGREEMENT"), which agreement has not been
consummated.
Contributor and Contributee now desire to enter into an Amended and
Restated Contribution Agreement to amend and restate the Contribution Agreement
in full.
Contributee has reincorporated as a Delaware corporation.
Contributor uses the Technology (as defined in SECTION 1A(i)(a) below).
Contributor uses the Tangible Assets (as defined in SECTION 1A(i)(b) below)
in connection with the Technology.
Contributee has been organized for the purpose, among others, of
commercializing and developing additional applications for the Technology.
On the terms and subject to the conditions set forth in this Agreement,
Contributor desires to contribute to Contributee (i) the Technology, in
consideration for which Contributee will issue to Contributor the Shares (as
defined in SECTION 1B below) and enter into the Services Agreement (as defined
in SECTION 1E(i)(d) below) and (ii) the Assets, in consideration for which
Contributee will reimburse to Contributor an amount equal to the net book value
of the Tangible Assets effective February 1, 2000.
AGREEMENT
In consideration of the Background and the covenants and other
consideration set forth herein, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
Section 1. CONTRIBUTION OF ASSETS IN EXCHANGE FOR THE SHARES AND THE CASH
AMOUNT.
1A. CONTRIBUTION OF ASSETS
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(i) On the terms and subject to the conditions contained in this Agreement,
at the Closing (as defined in SECTION 1E below), Contributor shall contribute,
convey, assign, transfer and deliver to Contributee all of Contributor's right,
title and interest in and to:
(a) any and all technology developed or acquired by or licensed to
the Contributor as part of the technical infrastructure used by Contributor in
the operation of Contributor's Customer Contact Center (the "CONTACT CENTER")
(such technology, the "TECHNOLOGY"), including without limitation (1) all
internally-developed applications, internally-developed integration methods,
internally-developed maintenance and use processes, systems and components, and
all related sales and marketing rights, currently owned or utilized by
Contributor in the operation of the Contact Center, and (2) that Technology more
particularly described on Schedule A attached hereto and made a part hereof; and
(b) the tangible assets described on Schedule B attached hereto and
made a part hereof (the "Tangible Assets" and, together with the Technology, the
"Assets"). Such Tangible Assets shall be contributed free of any encumbrances
with all liabilities due and payable prior to the Closing paid by Contributor.
For the purposes of this Agreement, "internally-developed" means developed by or
for Contributor.
(ii) CONTRIBUTEE HEREBY ACKNOWLEDGES THAT EXCEPT AS EXPRESSLY SET FORTH IN
SECTION 2 BELOW: (A) CONTRIBUTOR IS TRANSFERRING THE ASSETS IN "AS IS, WHERE IS"
CONDITION "WITH ALL FAULTS," WITHOUT ANY WARRANTIES, REPRESENTATIONS OR
GUARANTIES OF ANY KIND, ORAL OR WRITTEN, EXPRESS, OR IMPLIED, CONCERNING THE
ASSETS OR THIS AGREEMENT FROM OR ON BEHALF OF CONTRIBUTOR; AND (B) CONTRIBUTOR
HAS NOT MADE, DOES NOT AND WILL NOT MAKE ANY REPRESENTATIONS, OR WARRANTIES, OF
ANY KIND, ORAL OR WRITTEN, EXPRESS OR IMPLIED, CONCERNING THE ASSETS, INCLUDING,
WITHOUT LIMITATION (1) THE VALUE, MERCHANTABILITY, PROFITABILITY, SUITABILITY OR
FITNESS FOR A PARTICULAR USE OR PURPOSE, OF THE ASSETS, (2) THE CONDITION,
QUALITY, MANNER OF REPAIR, STATE OF REPAIR OR LACK OF REPAIR OF THE ASSETS, OR
(3) THE COMPLIANCE OF THE ASSETS WITH ANY APPLICABLE LAWS, RULES, STATUTES,
REGULATIONS, CODES OR ORDINANCES.
1B. ISSUANCE OF THE SERIES A PREFERRED. Subject to the conditions specified
in this Agreement, at the Closing, Contributee, in partial consideration for the
contribution of the Technology, shall issue to Contributor 4,000,000 shares (the
"SHARES") of the Series A Convertible Preferred Stock, $.0001 par value per
share, of Contributee (the "SERIES A PREFERRED").
1C. CASH IN CONSIDERATION FOR TANGIBLE ASSETS. Subject to the conditions
specified in this Agreement, at the Closing, Contributee, in partial
consideration for the contribution of the Tangible Assets, shall pay to
Contributor $1,141,326.20 ("CASH AMOUNT")
1D. ASSUMPTION OF LIABILITIES. Subject to the provisions of this Agreement
(including, without limitation, Contributor's indemnification obligations
contained in Paragraph 2C(i)) at the Closing, Contributee, in partial
consideration for the contribution of the Assets, shall unconditionally assume
and agree to pay, satisfy and discharge all liabilities and obligations relating
to or arising out of the Assets solely relating to the period commencing on or
after the Effective Time (as defined in
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SECTION 1E below), including, without limitation, any claims (whenever made)
arising out of, relating to, resulting from or caused by any transaction,
status, event, condition, occurrence or situation existing, arising or occurring
in connection with the ownership or operation of the Assets, whether such
liabilities are absolute, known, unknown, fixed, contingent or otherwise (the
"ASSUMED LIABILITIES"); provided that nothing in this paragraph shall be deemed
to limit Contributor's obligations under Section 2C(i).
1E. THE CLOSING. The closing of the transactions contemplated by this
Agreement (the "CLOSING") shall take place contemporaneously with the closing
of the sale of Series A Preferred and the Series B Preferred Stock of
Contributee as contemplated by that certain Series A Preferred Stock Purchase
Agreement dated March 2, 2000 and that certain Series B Preferred Stock
Purchase Agreement dated March 2, 2000 (the "EFFECTIVE TIME").
(i) At the Closing, subject to the conditions contained in this Agreement,
Contributor shall deliver, in satisfaction of its obligations hereunder, the
following to Contributee:
(a) an executed counterpart of the Assignment of Technology in the
form set forth on EXHIBIT A, attached hereto and made a part hereof (the
"ASSIGNMENT OF TECHNOLOGY");
(b) an executed counterpart of the Bill of Sale in the form set forth
on EXHIBIT B, attached hereto and made a part hereof (the "BILL OF Sale"); and
(c) an executed counterpart of the Services Agreement in the form
set forth on EXHIBIT C, attached hereto and made a part hereof (the "SERVICES
AGREEMENT").
(ii) DELIVERIES BY CONTRIBUTEE. In partial consideration for the
contribution of the Assets, at the Closing, Contributee shall deliver the
following to Contributor:
(a) an executed certificate representing the Shares issued in the
name of Contributor;
(b) an executed counterpart of the Assignment of Technology;
(c) an executed counterpart of the Bill of Sale;
(d) payment to Contributor of the Cash Amount; and
(e) an executed counterpart of the Services Agreement.
Section 2. REPRESENTATIONS AND ADDITIONAL AGREEMENTS; COVENANTS AFTER THE
EFFECTIVE TIME.
2A. REPRESENTATIONS OF CONTRIBUTOR. Contributor hereby represents and
warrants to Contributee as follows:
(i) Contributor is a corporation duly incorporated, validly existing, and
having an active status under the laws of the State of Utah; has the corporate
power and authority to own its assets and to transact the business in which it
is now engaged or proposed to be engaged; and is duly qualified
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as a foreign corporation and in good standing under the laws of each other
jurisdiction in which such qualification is required, if any.
(ii) Contributor owns or has a valid right to use the Tangible Assets and
the Technology, which rights of ownership and use are free and clear of all
liens and encumbrances. Contributor has not granted or agreed to grant to any
third party any license or other right or interest in any of the Tangible Assets
or Technology. Contributor has a valid right to contribute the Assets to
Contributee pursuant to the terms of this Agreement, and the Assets shall be
contributed to Contributee free and clear of any liens and encumbrances other
than the Assumed Liabilities. As used in this Agreement, "liens and
encumbrances" do not include any third-party infringement or claims of
infringement relating to the Technology.
(iii) Each of the Agreement, the Assignment of Technology, the Bill of Sale
and the Services Agreement constitutes a legally valid and binding obligation of
Contributor, enforceable against Contributor in accordance with its respective
terms, except as such enforcement may be limited by general principles of equity
and the effect of applicable bankruptcy, insolvency, moratorium and other laws
relating to or affecting creditors' rights.
(iv) Schedule A contains a true, correct and complete list of all the
Technology owned or used by Contributor in connection with the operation of the
Contact Center. To the knowledge of Contributor, the Technology does not
infringe or misappropriate any patent, copyright, trade secret or other
intellectual property right of any third party in the United States. To the
knowledge of Contributor, no person is infringing upon the rights of Contributor
in or to any of the Technology.
(v) There is no threatened action or proceeding against or affecting
Contributor before any court, governmental agency or arbitrator which may, in
any one case or in the aggregate, materially adversely affect the financial
condition, operations, properties, or business of Contributor or the ability of
Contributor to enter into and perform its obligation under this Agreement.
(vi) The execution and delivery by Contributor of this Agreement, the
Assignment of Technology, the Bill of Sale, and the Services Agreement, and
the performance by Contributor of its obligations hereunder and thereunder,
and the consummation by Contributor of the transactions contemplated hereby
and thereby, will not conflict with or violate in any material respect,
constitute a material default (or event which with the giving of notice or
lapse of time, or both, would become a material default) under, give rise to
any right of termination, amendment, modification, acceleration or
cancellation of any material obligation or loss of any material benefit
under, result in the creation of any encumbrance on any of the Assets
pursuant to, or require Contributor to obtain any consent, waiver, approval
or action of, make any filing with, or give any notice to any person as a
result or under, the terms and provisions of (i) Contributor's Articles of
Incorporation or Contributor's Bylaws, (ii) any material contract to which
Contributor is a party or by which any of the Assets is bound, or (iii) any
law applicable to Contributor or any of the Assets, or any governmental order
issued by a governmental authority by which Contributor or any of the Assets
is in any way bound or obligated.
(vii) No consent, waiver, approval, order or authorization of, or
registration, qualification, designation, declaration or filing with, any
governmental authority or third party is required on the part of Contributor in
connection with the execution and delivery by Contributor of this Agreement,
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the Assignment of Technology, the Bill of Sale and the Services Agreement, or
the performance by Contributor of its obligations hereunder and thereunder,
and the consummation by Contributor of the transactions contemplated hereby
and thereby, including, without limitation, the transfer of the Assets to
Contributee.
(viii) Contributor has provided to Contributee a copy of all material
documentation in Contributor's possession relating to each item of Technology.
(ix) Except for assets and services to be provided by Contributor to
Contributee pursuant to a Facilities and Services Agreement dated February 1,
2000 (the "FACILITIES AGREEMENT"), the Assets constitute all of the material
assets, properties and rights used by Contributor in the operation of the
Contact Center prior to the Effective Date.
(x) The Tangible Assets are in good condition and repair (ordinary wear and
tear excepted) for property of comparable type, age and usage, except for
tangible personal property that is obsolete and no longer used in the operation
of the Contact Center.
(xi) Contributor has never received any claim or notice that it is not in
compliance with, and to the knowledge of Contributor, Contributor is in
compliance with, each law or governmental order applicable to the operation of
the Contact Center.
(xii) Since December 17, 1999, there has been no change or effect in the
assets, properties, operations, liabilities, business, condition (financial or
otherwise) or results of operations of the Contact Center, that has had or would
reasonably be expected, individually or in the aggregate, to have a material
adverse effect on the operation of the Contact Center.
(xiii) Contributor has made available to Contributee and its agents and
representatives disclosure regarding the Contact Center's state of readiness,
remediation plans and related expenditures relating to what is commonly referred
to as the "Year 2000 problem," and such disclosure is true, correct and complete
in all material respects.
2B. REPRESENTATIONS OF CONTRIBUTEE. Contributee hereby represents and
warrants to Contributor that Contributee is a corporation duly incorporated,
validly existing, and having an active status under the laws of the State of
Delaware; has the corporate power and authority to own its assets and to
transact the business in which it is now engaged or proposed to be engaged; and
is duly qualified as a foreign corporation and in good standing under the laws
of each other jurisdiction in which such qualification is required, if any.
2C. INDEMNIFICATION.
(i) INDEMNIFICATION BY CONTRIBUTOR. In addition to all rights and remedies
available to Contributee at law, in equity, or with respect to that certain
Stockholder Rights Agreement of even date herewith, by and between Contributor,
Contributee and the investors listed on the signature pages thereto (the "RIGHTS
AGREEMENT"), Contributor agrees to indemnify Contributee, its officers,
directors, agents, representatives, successors, permitted assigns and affiliates
(other than Contributor) (collectively, the "CONTRIBUTEE PARTIES") and hold each
of them harmless against and pay on behalf of
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or reimburse such Contributee Parties in respect of any loss (including, without
limitation, diminution in value and consequential damages), liability, demand,
claim, action, cause of action, cost, damage, deficiency, tax, penalty, fine or
expense, whether or not arising out of third party infringement claims
(including, without limitation, interest, penalties, reasonable attorneys' fees
and expenses and all amounts paid in investigation, defense or settlement of any
of the foregoing) (collectively, "LOSSES") which any such Contributee Party may
suffer, sustain or become subject to, as a result of, in connection with,
relating or incidental to or by virtue of the breach of any representation,
covenant or agreement of Contributor contained in this Agreement; provided that
the sole remedy and the extent of Contributor's obligations relating to any
third party infringement claims, arising from acts of or on behalf of
Contributor relating to the Technology transfer by Contributor, shall be the
return to Contributee of no more than 4,000,000 shares of Series A Preferred (or
any shares of Contributee's Common Stock issued upon conversion of the Series A
Preferred). For purposes of determining the number of shares of Series A
Preferred to be returned by Contributor, the value of the shares of Series A
Preferred shall be determined as follows (i) prior to Contributee's initial
public offering, the value of the Series A Preferred (or Contributee's Common
Stock issued upon conversion of the Series A Preferred) shall be deemed equal to
the greater of $2.00 per share or the highest price per share paid by a third
party in a bona fide third party transaction involving the Series A Preferred or
Contributee's Common Stock and (ii) subsequent to Contributee's initial public
offering, the fair market value of the Contributee's Common Stock.
(ii) INDEMNIFICATION BY CONTRIBUTEE. In addition to all rights and remedies
available to Contributor at law, in equity, or with respect to the Rights
Agreement, Contributee agrees to indemnify Contributor, its officers, directors,
agents, representatives, successors, permitted assigns and affiliates (other
than Contributee) (collectively, the "CONTRIBUTOR PARTIES") and hold each of
them harmless against and pay on behalf of or reimburse such Contributor Parties
in respect of any Losses which any such Contributor Party may suffer, sustain or
become subject to, as a result of, in connection with, relating or incidental to
or by virtue of: (i) the breach of any covenant or agreement of Contributee
contained in this Agreement or (ii) the assertion or recovery against
Contributor of any Assumed Liabilities (other than Losses resulting from, in
connection with, relating or incidental to, or by virtue of breach of any of
Contributor's representations or warranties in SECTION 2A or obligations under
clause (i) of SECTION 2C(i)).
2D. NOTICE AND DEFENSE OF THIRD PARTY CLAIMS. If any claim, administrative
action, lawsuit or other proceeding shall be brought or asserted under SECTIONS
2C(i) or 2C(ii) against an indemnified party or any successor thereto (the
"INDEMNIFIED PERSON") in respect of which indemnity may be sought under such
Sections from an indemnifying person or any successor thereto (the "INDEMNIFYING
PERSON"), the Indemnified Person shall undertake the defense, compromise or
settlement of such proceeding with counsel reasonably satisfactory to the
Indemnified Person, and the Indemnifying Person shall assume and pay all fees,
costs and expenses relating to or associated with the Indemnified Person's
defense thereof, including all fees and costs of counsel and the payment of all
costs and expenses in connection therewith. The Indemnified Person shall give
prompt written notice of such proceeding to the Indemnifying Person; provided,
that any delay or failure to so notify the Indemnifying Person shall relieve the
Indemnifying Person of its obligations hereunder only to the extent, if at all,
that the Indemnifying Person is materially prejudiced by reason of such delay or
failure. In connection with the Indemnified Person's defense of any such
proceeding, the Indemnifying Person shall, reasonably and in good faith, assist
and cooperate in the defense thereof. With respect to matters not involving
proceedings brought or asserted by third
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parties, within thirty (30) days after notification from any Indemnified Person
supported by reasonable documentation setting forth the nature of the
circumstances entitling such Indemnified Person to indemnity hereunder, the
Indemnifying Person, at no cost or expense to such Indemnified Person, shall
diligently commence resolution of such matters in a manner reasonably acceptable
to such Indemnified Person and shall diligently and timely prosecute such
resolution to completion; provided, however, with respect to those valid claims
that may be satisfied by payment of a liquidated sum of money and which are not
disputed reasonably and in good faith by the Indemnified Person, the
Indemnifying Person shall promptly pay the amount so claimed.
2E. MUTUAL ASSISTANCE AND RECORDS. Contributee and Contributor agree that
they will mutually cooperate in the expeditious filing of all notices, reports
and other filings with any governmental authority required to be submitted
jointly by Contributee and Contributor in connection with the execution and
delivery of the Agreement and the consummation of the transactions contemplated
by the Agreement.
2F. FURTHER TRANSFERS. Each of Contributor and Contributee will, and will
cause each of their affiliates to, execute and deliver such further instruments
of conveyance and transfer and take such additional action as the other party
hereto may reasonably request to effect, consummate, confirm or evidence the
transfer of the Assets or the obligations of Contributee hereunder.
Section 3. MISCELLANEOUS.
3A. REMEDIES. Each party hereto shall have all rights and remedies set
forth in this Agreement and all rights and remedies which such party has been
granted at any time under any other agreement or contract with the other party
hereto and all of the rights which such party has under any law. Any Person
having any rights under any provision of this Agreement shall be entitled to
enforce such rights specifically (without posting a bond or other security), to
recover damages by reason of any breach of any provision of this Agreement and
to exercise all other rights granted by law.
3B. CONSENT TO AMENDMENTS. Except as otherwise expressly provided herein,
the provisions of this Agreement may be amended only by the prior written
consent of Contributor and Contributee. No other course of dealing between any
of the parties hereto or any delay in exercising any rights hereunder or under
the Agreement shall operate as a waiver of any rights of any party hereto.
3C. TERMINATION. This Agreement may be terminated only by the prior written
consent of Contributor and Contributee; provided, however, that in the event of
a failure of any of the conditions to either party's obligation to close this
Agreement the other party may terminate this Agreement if such other party does
not waive such failure in writing on or prior to the latest date on which the
Effective Time identified in SECTION 1E above is permitted to occur pursuant to
such SECTION 1E.
3D. SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided herein,
all covenants and agreements contained in this Agreement by or on behalf of any
of the parties hereto shall bind and inure to the benefit of the respective
successors and assigns of the parties hereto whether so expressed or not.
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3E. SEVERABILITY. Whenever possible, each provision of this Agreement shall
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement is held to be prohibited by or invalid
under applicable law, such provision shall be ineffective only to the extent of
such prohibition or invalidity, without invalidating the remainder of this
Agreement.
3F. COUNTERPARTS. This Agreement may be executed simultaneously in two or
more counterparts, any one of which need not contain the signatures of more than
one party, but all such counterparts taken together shall constitute one and the
same Agreement.
3G. DESCRIPTIVE HEADINGS; INTERPRETATION. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a substantive
part of this Agreement. The use of the word "including" in this Agreement shall
be by way of example rather than by limitation.
3H. GOVERNING LAW. Except for matters governed by federal law, all other
issues and questions concerning the construction, validity, enforcement and
interpretation of this Agreement and the exhibits and schedules hereto shall be
governed by, and construed in accordance with, the laws of the State of
Delaware, without reference to principles of conflicts of law.
3I. NOTICES. Except as expressly set forth to the contrary in this
Agreement, all notices, requests or consents provided for or permitted to be
given under this Agreement must be in writing and shall be deemed delivered: (i)
upon delivery if delivered in person; (ii) three (3) business days after deposit
in the United States mail, addressed to the recipient, postage paid, and
registered or certified with return receipt requested; (iii) upon transmission
if sent via telecopier, with a confirmation copy sent via overnight mail; or
(iv) one (1) business day after deposit with a national overnight courier. Such
notices, demands and other communications shall be sent to each party at the
address or telecopy number indicated below:
IF TO CONTRIBUTOR:
Sento Corporation
808 East Utah Valley Drive
American Fork, UT 84003
Attention: Stanley J. Cutler
Telecopy: (801) 492-2100
IF TO CONTRIBUTEE:
EchoPass Corporation
808 East Utah Valley Drive
American Fork, UT 84003
Attention: Keith Barr
Telecopy: (801) 492-2100
or to such other address or telecopy number or to the attention of such other
person as the recipient party has specified by prior written notice to the
sending party.
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3J. NO STRICT CONSTRUCTION. The parties hereto have participated jointly in
the negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties hereto, and no presumption or burden of
proof shall arise favoring or disfavoring any party by virtue of the authorship
of any of the provisions of this Agreement.
3K. EFFECT OF AMENDMENT. This Amended and Restated Contribution Agreement
amends and restates the Contribution Agreement in its entirety. Upon the
execution of this Amended and Restated Contribution Agreement by Contributor and
Contributee, the Contribution Agreement shall be superseded in its entirety and
shall be of no further force or effect.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first written above.
SENTO CORPORATION
By:
-----------------------------------
Name/Title: Arthur F. Coombs, III,
President and Chief Executive Officer
By:
-----------------------------------
Name/Title: Gary B. Filler, Chief
Financial Officer
ECHOPASS CORPORATION
By:
-----------------------------------
Name/Title: Keith D. Barr, Vice President
and Chief Technology Officer
10
<PAGE>
SCHEDULE A
TO
AMENDED AND RESTATED CONTRIBUTION AGREEMENT
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Certain Technology
Technology includes, without limitation, the products and property listed below
and any and all related documentation on or about the products or property
listed below (whether with the names shown below or with the "Apex" or other
predeccessor prefix) and all installation, configuration, diagrams,
administrative setup, white papers, design documents or other information
related to the tools and components used for communications, management,
administration or operations of the technical infrastructure of the Contact
Center. This documentation may be in the form of, but not limited to: product
user guides, white papers, correspondence, notes, emails, database records,
proposals, design documents, bug or enhancement reports, presentations, slide
shows, or any information regardless of form, whether electronic or otherwise,
that may contain references to the internals or features of these products or
properties.
ECHOADMIN
EchoAdmin is a unified administration tool for the EchoCenter
environment. It allows a user to make changes in everything from personnel
records to NT Logins.
ECHOREPORT
EchoReport is an ad-hoc reporting tool that allows users to create,
save, and schedule reports on every part of the EchoCenter environment.
ECHOP&L
EchoP&L is a subsection of EchoReport, which allows agent data to be
saved to a special Excel worksheet. This worksheet can display the profit
and loss statement for an agent, team, or account.
ECHOSCHEDULER
EchoScheduler is a back-end data reduction tool, which gathers raw
data from several EchoCenter systems and reduces it to 30-minute call
detail records.
ECHOCONTACT
EchoContact is a multi-media software phone. It allows agents to
communicate via Voice, VoIP, Email, Voice Mail, Fax, Chat, Web callback,
and Web call-through.
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ECHOCONTACTCLIENT
EchoContactClient is a companion application to EchoContact, which
enables EchoContact to operate faster in a low bandwidth environment.
NMECHO.DLL
NMEcho.dll is a subset of EchoContact and EchoContactClient, which
provides H.323 calling functions.
ECHOCASE
EchoCase is a Customer Relationship Management database application
geared toward the inbound technical support environment.
ECHOSALES
EchoSales is a Customer Relationship Management database application
geared toward the outbound sales and marketing environment.
ECHOCONTENT
EchoContent is a database application, which allows users to centrally
administer web site content. This application also uses special web pages
known as templates to display the web site content from a web server.
ECHOSKILLS/UNIVERSITY
EchoSkills/University is a curriculum, class, and personnel skill
management database application.
ECHOCAPTURE
EchoCapture is a screen capture utility used to create many of the
real-time graphic sections on various workgroup and EchoInsite servers.
ECHOHARVEST
EchoHarvest is a web harvesting utility used to gather information
from the Internet for use on workgroup and EchoInsite servers.
ECHOINSITE
EchoInsite is a `remote presence' custom web server used to provide
clients a view into the EchoCenter environment.
ECHOWORKGROUPSERVER
Workgroup servers are custom web servers geared toward providing
real-time views into the call queue conditions and knowledge bases of a
workgroup.
ECHODATAMINE
EchoDatamine is a customized web application used as part of the
EchoInsite tool. EchoDatamine allows users to perform higher level
theme-based analysis of customer data.
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ECHOMETRICS
EchoMetrics is a data-gathering tool, which collects performance
statistical data from various EchoCenter systems.
ECHONORTEL
EchoNortel is a specialized data-gathering tool, which collects
performance statistical data from a Nortel PBX.
ECHOBUGS
EchoBugs is a product development database application. It facilitates
bug and enhancement tracking, product and feature tracking, and quality
assurance test plans and steps.
ECHOKBA
EchoKBA is a knowledge management database application, which allows
users to create, edit, and maintain centralized knowledge.
ECHOSURVEY
EchoSurvey is a database application that will be used to create,
edit, analyze, and capture survey data from other EchoSuite products. I.e.
EchoInsite, EchoCase, EchoSales, etc.
GENESYS CONFIGURATION SCRIPTS AND STRATEGIES DEVELOPED BY OR FOR
CONTRIBUTOR
These scripts and strategies include information relating to the
current configuration of the Genesys environment.
SENTO IVR APPLICATION
This IVR application allows the Brite IVR to interact with the Genesys
Environment.
INTEGRATION TOOLS DEVELOPED BY OR FOR CONTRIBUTOR WITH RESPECT TO PBX,
CISCO 5300, GENESYS CTI, BRITE IVR, OCTEL UNIFIED MESSENGER, OPTUS FACSYS
GATEWAY, MICROSOFT EXCHANGE, MICROSOFT SQL SERVER, MICROSOFT IIS, CITRIX,
MS TERMINAL SERVER, MS INDEX SERVER, MS OFFICE AND OTHER OFF-THE-SHELF
COMPONENTS USED IN THE INFRASTRUCTURE.
This includes configuration of the components in the arrangement used
in the infrastructure and features exploited in each component. Cabling
methods, system settings, administrative setup and physical installation
are also included.
<PAGE>
SCHEDULE B
TO
AMENDED AND RESTATED CONTRIBUTION AGREEMENT
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Tangible Assets
[See schedule of assets attached hereto]
<PAGE>
EXHIBIT A
TO
AMENDED AND RESTATED CONTRIBUTION AGREEMENT
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Assignment of Technology
[See document attached hereto]
<PAGE>
EXHIBIT B
TO
AMENDED AND RESTATED CONTRIBUTION AGREEMENT
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Bill of Sale
[See document attached hereto]
<PAGE>
EXHIBIT C
TO
AMENDED AND RESTATED CONTRIBUTION AGREEMENT
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Services Agreement
[See document attached hereto]
<PAGE>
EXHIBIT 99.1
PRESS RELEASE
ECHOPASS CORPORATION CLOSES $22.7 MILLION IN FIRST ROUND FUNDING; COMPLETES
TRANSACTIONS WITH SENTO
EchoPass to Accelerate Investment in Sales, Marketing, R&D, and Construction of
Multiple DataComm Facilities
AMERICAN FORK, UTAH, MARCH 2, 2000 -- EchoPass Corporation (www.echopass.com),
an ASP company offering an integrated Internet and telephone customer service
communication solution, today announced its completion of venture capital
financing totaling $22.7 million. New Enterprise Associates (NEA) and Canaan
Partners, two top tier venture capital firms, participated in the first round of
funding. Additional funding is expected to close before March 15, 2000
In addition, Sento Corporation (Nasdaq: SNTO - NEWS), has completed the
technology and asset transactions to EchoPass. Sento will retain approximately
26% ownership of EchoPass Corporation and receive a cash payment of
approximately $1.1 million from EchoPass.
Sento also has obtained a Fairness Opinion from Alliant Partners, a financial
advisory firm for high technology companies, for the asset and technology
transactions between Sento and EchoPass. The Fairness Opinion concludes that the
asset and technology contribution made by Sento to EchoPass is fair, from a
financial point of view, to the shareholders of Sento Corporation.
In conjunction with the financing, NEA's general partner Ron H. Kase and Canaan
Partner's general partner John V. Balen, have joined the EchoPass board of
directors. Both possess a track record of building successful Internet
infrastructure companies.
"This investment will enable EchoPass to penetrate the customer service market
at an even greater pace," said Arthur Coombs CEO of Sento. "I'm delighted to be
working with NEA and Canaan Partners and welcome them to the team. The strength
of our partners and financing is indicative of the dependable, state-of-the-art
customer service communication solution that EchoPass provides." "EchoPass is
well positioned to capture a significant share of the customer service market,"
said Ron Kase General partner of New Enterprise Associates. "Their solution was
not built in the vacuum of a garage, but a solution in the making for over two
years supporting leading, high technology Fortune 1000 companies. The management
team comes from a diverse customer support background experienced with such
companies as Microsoft, Gateway Computers, Hewlett Packard, Novell, and Network
Associates, Inc."
EchoPass Corporation delivers to client companies the latest in customer care
capabilities including, telephone and Internet calls, e-mail, Web text chat, Web
call backs, browser collaboration, voicemail, and fax. EchoPass' solution is
designed to direct incoming interactions to the right client company's agent at
the right time with skills-based routing and customer data screen pops, enabling
immediate and accurate customer care. EchoPass is an application service
provider (ASP) that will host, configure and maintain backend infrastructures at
their datacomm facilities. These facilities permit client companies access to
all communication capabilities through standard Web browsers. Once implemented,
companies will be charged based on usage, eliminating the need to undertake
costly build-outs of their own infrastructure and to hire and train additional
IT staff to manage these critical business applications.
About New Enterprise Associates
New Enterprise Associates (NEA), formed in 1978, is one of the industry's
premier venture capital firms. NEA invests in early-stage, high technology
companies and teams with management to build companies of lasting value.
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More than 100 NEA companies have gone public in the Internet infrastructure,
information technology and health care industries. For more information, please
visit www.nea.com.
About Canaan Partners
Canaan Partners (www.canaan.com) is a national venture capital investment firm
formed in 1987. Canaan specializes in startup and emerging-growth companies in
information technology and services, as well as health care and financial
services.
About Sento
Sento Corporation provides technical services for organizations using Windows NT
and UNIX client-server computing environments. These services include, Contract
Technical Support, Help Desk Services, Technical Training and Education. Sento
conducts its business through its operating divisions including Sento Training
and Sento Technical Services. For more information, visit Sento's home page at
www.sento.com.
###
Statements in this press release which are not purely historical are
forward-looking statements within the meaning of the Private Securities
Litigation Reform Act of 1995. Such statements encompass Sento's beliefs,
expectations, hopes or intentions regarding future events. Words such as
"expects," "intends," "believes," "anticipates," and "likely" also identify
forward-looking statements. All forward-looking statements included in this
release are made as of the date hereof and are based on information available to
Sento as of such date. Sento assumes no obligation to update any forward-looking
statement. Actual results could differ materially from those anticipated for a
number of reasons, including, among others, the failure of Sento and EchoPass to
complete the pending and proposed transactions between themselves and third
parties, demands associated with Sento's redirected strategy to develop and
market new and additional information technology services and products,
uncertainties and expenses resulting from the implementation of Sento's efforts
to identify, acquire and integrate additional businesses, unavailability of
capital to fund Sento's growth strategy and acquisition plans, the highly
competitive environment faced by information technology businesses, a downturn
in the market for hardware and/or software products, economic fluctuations and
other unanticipated factors. Risk factors, cautionary statements and other
conditions which could cause actual results to differ from the Company's current
expectations are contained in the Company's filings with the Securities and
Exchange Commission, including the Company's Annual Report on Form 10-KSB.
