<PAGE>
Exhibit 2.1
AGREEMENT AND PLAN OF REORGANIZATION
BY AND AMONG
TUT SYSTEMS, INC.,
ACTIVETELCO INCORPORATED,
ACTIVETELCO ACQUISITION CORPORATION,
AND, WITH RESPECT TO ARTICLE VII ONLY,
AZEEM BUTT
AS SHAREHOLDER REPRESENTATIVE,
AND
U.S. BANK TRUST,
AS ESCROW AGENT
Dated as of December 21, 2000
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I The Merger............................................................................................ 1
1.1 The Merger.......................................................................................... 1
----------
1.2 Effective Time...................................................................................... 2
--------------
1.3 Effect of the Merger................................................................................ 2
--------------------
1.4 Articles of Incorporation; Bylaws................................................................... 2
---------------------------------
1.5 Directors and Officers.............................................................................. 2
----------------------
1.6 Effect on Capital Stock............................................................................. 2
-----------------------
1.7 Dissenting Shares................................................................................... 4
-----------------
1.8 Surrender of Certificates........................................................................... 4
-------------------------
1.9 No Further Ownership Rights in Company Capital Stock................................................ 6
----------------------------------------------------
1.10 Dissenting Shares After Payment of Fair Value....................................................... 6
---------------------------------------------
1.11 Tax and Accounting Consequences..................................................................... 6
-------------------------------
1.12 Taking of Necessary Action; Further Action.......................................................... 6
------------------------------------------
ARTICLE II Representations and Warranties of the Company........................................................ 7
2.1 Organization of the Company......................................................................... 7
---------------------------
2.2 Company Capital Structure........................................................................... 7
-------------------------
2.3 Subsidiaries........................................................................................ 7
------------
2.4 Authority........................................................................................... 7
---------
2.5 No Conflict......................................................................................... 8
-----------
2.6 Consents............................................................................................ 8
--------
2.7 Company Financial Statements........................................................................ 8
----------------------------
2.8 No Undisclosed Liabilities.......................................................................... 9
--------------------------
2.9 No Changes.......................................................................................... 9
----------
2.10 Tax Matters......................................................................................... 11
-----------
2.11 Restrictions on Business Activities................................................................. 12
-----------------------------------
2.12 Title of Properties; Absence of Liens and Encumbrances; Condition of Equipment...................... 13
------------------------------------------------------------------------------
2.13 Intellectual Property............................................................................... 13
---------------------
2.14 Agreements, Contracts and Commitments............................................................... 16
-------------------------------------
2.15 Interested Party Transactions....................................................................... 17
-----------------------------
2.16 Governmental Authorization.......................................................................... 17
--------------------------
2.17 Litigation.......................................................................................... 18
----------
2.18 Accounts Receivable................................................................................. 18
-------------------
2.19 Minute Books........................................................................................ 18
------------
2.20 Environmental Matters............................................................................... 18
---------------------
2.21 Brokers' and Finders' Fees; Third Party Expenses.................................................... 19
------------------------------------------------
2.22 Employee Benefit Plans and Compensation............................................................. 19
---------------------------------------
2.23 No Interference or Conflict......................................................................... 22
---------------------------
2.24 Insurance........................................................................................... 22
---------
2.25 Compliance with Laws................................................................................ 23
--------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
2.26 Complete Copies of Materials........................................................................ 23
----------------------------
2.27 Representations Complete............................................................................ 23
------------------------
ARTICLE III Representations and Warranties of Parent And Sub.................................................... 23
3.1 Organization, Standing and Power.................................................................... 23
--------------------------------
3.2 Authority........................................................................................... 23
---------
3.3 Capital Structure................................................................................... 24
-----------------
3.4 SEC Documents; Parent Financial Statements.......................................................... 24
------------------------------------------
3.5 Brokers' and Finders' Fees.......................................................................... 24
--------------------------
3.6 Consents............................................................................................ 24
--------
3.7 Other Matters....................................................................................... 25
-------------
ARTICLE IV Conduct Prior to the Effective Time.................................................................. 25
4.1 Conduct of Business of the Company.................................................................. 25
----------------------------------
4.2 No Solicitation..................................................................................... 27
---------------
ARTICLE V ADDITIONAL AGREEMENTS................................................................................. 28
5.1 Sale of Shares...................................................................................... 28
--------------
5.2 Access to Information............................................................................... 28
---------------------
5.3 Confidentiality..................................................................................... 28
---------------
5.4 Expenses............................................................................................ 29
--------
5.5 Public Disclosure................................................................................... 29
-----------------
5.6 Consents............................................................................................ 29
--------
5.7 FIRPTA Compliance................................................................................... 29
-----------------
5.8 Reasonable Efforts.................................................................................. 29
------------------
5.9 Notification of Certain Matters..................................................................... 30
-------------------------------
5.10 Affiliate Agreements................................................................................ 30
--------------------
5.11 Additional Documents and Further Assurances......................................................... 30
-------------------------------------------
5.12 Tax Free Reorganization............................................................................. 30
-----------------------
5.13 Shareholder Approval................................................................................ 30
--------------------
5.14 Proprietary Information and Confidentiality Agreements.............................................. 31
------------------------------------------------------
ARTICLE VI CONDITIONS TO THE MERGER............................................................................. 31
6.1 Conditions to Obligations of Each Party to Effect the Merger........................................ 31
------------------------------------------------------------
6.2 Additional Conditions to Obligations of Company..................................................... 31
-----------------------------------------------
6.3 Additional Conditions to the Obligations of Parent and Sub.......................................... 32
----------------------------------------------------------
ARTICLE VII SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ESCROW.................................................. 34
7.1 Survival of Representations and Warranties.......................................................... 34
------------------------------------------
7.2 Escrow Arrangements................................................................................. 34
-------------------
7.3 Shareholder Representative.......................................................................... 40
--------------------------
7.4 Exclusive Remedy.................................................................................... 41
----------------
ARTICLE VIII TERMINATION, AMENDMENT AND WAIVER.................................................................. 41
8.1 Termination......................................................................................... 41
-----------
8.2 Effect of Termination............................................................................... 42
---------------------
</TABLE>
ii
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
8.3 Amendment........................................................................................... 42
---------
8.4 Extension; Waiver................................................................................... 42
-----------------
ARTICLE IX GENERAL PROVISIONS................................................................................... 42
9.1 Notices............................................................................................. 42
-------
9.2 Interpretation...................................................................................... 44
--------------
9.3 Counterparts........................................................................................ 44
------------
9.4 Entire Agreement; Assignment........................................................................ 44
----------------------------
9.5 Severability........................................................................................ 44
------------
9.6 Other Remedies...................................................................................... 45
--------------
9.7 Governing Law....................................................................................... 45
-------------
9.8 Rules of Construction............................................................................... 45
---------------------
9.9 Attorney's Fees..................................................................................... 45
---------------
</TABLE>
iii
<PAGE>
AGREEMENT AND PLAN OF REORGANIZATION
This AGREEMENT AND PLAN OF REORGANIZATION (this "Agreement") is made and
entered into as of December 21, 2000 by and among Tut Systems, Inc., a Delaware
corporation ("Parent"), ActiveTelco Acquisition Corporation, a California
corporation and a wholly-owned subsidiary of Parent ("Sub"), ActiveTelco
Incorporated, a California corporation (the "Company") and, with respect to
Article VII only, Azeem Butt, as shareholder representative, and U.S. Bank
-----------
Trust, as escrow agent.
RECITALS
A. The Boards of Directors of each of the Company, Parent and Sub believe
it is in the best interests of each company and the shareholders of each company
that Parent acquire the Company through the statutory merger of the Company with
and into Sub (the "Merger") and, in furtherance thereof, have approved the
Merger.
B. Pursuant to the Merger, among other things, all of the issued and
outstanding shares of "Company Capital Stock" (as hereinafter defined) and all
options, warrants and other rights to acquire any shares of the Company Capital
Stock shall be converted into the right to receive shares of Parent Common Stock
(as hereinafter defined).
C. A portion of the shares of Parent Common Stock otherwise payable by
Parent in connection with the Merger shall be placed in escrow by Parent, the
release of which amount shall be contingent upon certain events and conditions.
D. It is intended by the parties hereto that the Merger shall constitute
a reorganization within the meaning of Section 368 of the Internal Revenue Code
of 1986, as amended (the "Code").
E. The Company, Parent and Sub desire to make certain representations,
warranties, covenants and other agreements in connection with the Merger.
STATEMENT OF AGREEMENT
NOW, THEREFORE, in consideration of the covenants, promises and
representations set forth herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties agree
as follows:
ARTICLE I.
THE MERGER
Section 1.1 The Merger. At the Effective Time (as defined in Section
---------- -------
1.2) and subject to and upon the terms and conditions of this Agreement and the
----
applicable provisions of the California Corporations Code (the "California
Law"), the Company shall be merged with and into Sub, the separate corporate
existence of the Company shall cease and Sub shall continue
<PAGE>
as the surviving corporation and as a wholly-owned subsidiary of Parent. The
surviving corporation after the Merger is hereinafter sometimes referred to as
the "Surviving Corporation."
Section 1.2 Effective Time. Unless this Agreement is earlier terminated
--------------
pursuant to Section 8.1, the closing of the Merger (the "Closing") will take
-----------
place as promptly as practicable, but no later than five (5) business days
following satisfaction or waiver of the conditions set forth in Article VI, at
----------
the offices of Akin, Gump, Strauss, Hauer & Feld, LLP, 1700 Pacific Avenue,
Suite 4100, Dallas, Texas 75201, or by exchange of original documentation by
each of the respective parties and their attorneys via Federal Express or
similar overnight courier service, unless another place, manner or time is
agreed to in writing by Parent and the Company. The date upon which the Closing
actually occurs is herein referred to as the "Closing Date." On the Closing
Date, the parties hereto shall cause the Merger to be consummated by filing of
this Agreement, or a merger agreement as contemplated by Section 1101 of the
California Law (the "Merger Agreement"), with the Secretary of State of
California, in accordance with the relevant provisions of applicable law (the
time of acceptance by the Secretary of State of California of such filing being
referred to herein as the "Effective Time").
Section 1.3 Effect of the Merger. At the Effective Time, the effect of
--------------------
the Merger shall be as provided in the applicable provisions of the California
Law. Without limiting the generality of the foregoing, and subject thereto, at
the Effective Time all the property, rights, privileges, powers and franchises
of the Company and Sub shall vest in the Surviving Corporation, and all debts,
liabilities and duties of the Company and Sub shall become the debts,
liabilities and duties of the Surviving Corporation.
Section 1.4 Articles of Incorporation; Bylaws.
---------------------------------
(a) Unless otherwise determined by Parent prior to the Effective
Time, at the Effective Time the Articles of Incorporation of Sub shall be the
Articles of Incorporation of the Surviving Corporation until thereafter amended
as provided by law and such Articles of Incorporation; provided, however, that
-------- -------
Article I of the Articles of Incorporation of the Surviving Corporation shall be
amended to read as follows: "The name of the corporation is ActiveTelco
Incorporated (the "Corporation")."
(b) The Bylaws of Sub, as in effect immediately prior to the
Effective Time, shall be the Bylaws of the Surviving Corporation until
thereafter amended.
Section 1.5 Directors and Officers. The directors of Sub immediately
----------------------
prior to the Effective Time shall be the initial directors of the Surviving
Corporation, each to hold office in accordance with the Articles of
Incorporation and Bylaws of the Surviving Corporation. The officers of Sub
immediately prior to the Effective Time shall be the initial officers of the
Surviving Corporation, each to hold office in accordance with the Bylaws of the
Surviving Corporation.
Section 1.6 Effect on Capital Stock. At the Effective Time, by virtue of
-----------------------
the Merger and without any action on the part of Sub, the Company or the holders
of any of the
2
<PAGE>
following securities:
(a) Conversion of Company Capital Stock. Each share of common stock,
-----------------------------------
no par value, of the Company (the "Company Capital Stock") issued and
outstanding immediately prior to the Effective Time will be canceled and
extinguished and shall be converted automatically into the right to receive
0.0425958 shares (the "Exchange Ratio") of common stock, par value $0.001 per
share, of Parent ("Parent Common Stock"). The shares of Parent Common Stock
issued pursuant to this Section 1.6(a) are referred to as the "Merger Shares."
--------------
(b) Shares Owned by Parent Each share of the Company Capital Stock
----------------------
issued and outstanding and owned by Parent, Sub or any of their subsidiaries
immediately prior to the Effective Time shall, by virtue of the Merger and
without any action on the part of the holder thereof, cease to be outstanding,
be canceled and retired without payment of any consideration therefor and cease
to exist.
(c) Substitution of Company Options. At the Effective Time, each
-------------------------------
outstanding option to purchase shares of the Company Capital Stock set forth on
Exhibit G (each, a "Company Option"), whether vested or unvested, shall be
---------
canceled and extinguished and Parent shall issue in substitution therefor a new
option of equal remaining tenor (each, a "Substitute Stock Option" and
collectively "Substitute Stock Options") to purchase a number of shares of
Parent Common Stock equal to the product of the number of shares of the Company
Capital Stock covered by such Company Option immediately prior to the Effective
Time multiplied by the Exchange Ratio, rounded to the nearest whole number of
shares of Parent Common Stock. Each Substitute Stock Option shall have a per
share exercise price for Parent Common Stock issuable upon the exercise thereof
equal to the quotient determined by dividing the exercise price per share of the
Company Capital Stock specified for each such Company Option under the
applicable option agreement immediately prior to the Effective Time by the
Exchange Ratio, rounding the resulting exercise price down to the nearest whole
cent. Each Substitute Stock Option shall be issued pursuant to and subject to
the terms and conditions of Parent's 1998 Stock Plan.
(d) Capital Stock of Sub. Each share of common stock, no par value,
--------------------
of Sub issued and outstanding immediately prior to the Effective Time shall be
converted into and exchanged for one validly issued, fully paid and
nonassessable share of common stock, no par value, of the Surviving Corporation.
Each stock certificate of Sub evidencing ownership of any such shares shall
continue to evidence ownership of such shares of capital stock of the Surviving
Corporation.
(e) Adjustments to Exchange Ratio. The Exchange Ratio shall be
-----------------------------
adjusted to reflect fully the effect of any stock split, reverse split, stock
dividend (including any dividend or distribution of securities convertible into
Parent Common Stock or the Company Capital Stock), reorganization,
recapitalization or other like change with respect to Parent Common Stock or the
Company Capital Stock occurring after the date hereof and prior to the Effective
Time.
(f) Fractional Shares. No fractional shares of Parent Common Stock
-----------------
shall be issued in the Merger. In lieu thereof, each holder of shares of the
Company Capital Stock (each,
3
<PAGE>
a "Company Shareholder") who would otherwise be entitled to a fraction of a
share of Parent Common Stock shall (after aggregating all fractional shares of
Parent Common Stock to be received by such holder) have such fraction rounded up
to the nearest whole share of Parent Common Stock.
Section 1.7 Dissenting Shares. Notwithstanding any provision of this
-----------------
Agreement to the contrary, any shares of capital stock of the Company that are
outstanding immediately prior to the Effective Time and that are held by Company
Shareholders who have exercised dissenters' rights for such shares in accordance
with the California Law and who, as of the Effective Time, have not effectively
withdrawn or lost such dissenters' rights ("Dissenting Shares") shall not be
converted into or represent the right to receive Parent Common Stock as provided
in Section 1.6 of this Agreement, but the holders of such shares shall only be
-----------
entitled to such rights as are granted by the California Law; provided, however,
-------- -------
that (i) if any holder of Dissenting Shares shall effectively withdraw or lose
(through failure to perfect or otherwise) his or her dissenters' rights, then as
of the Effective Time or the occurrence of such event, such holder's shares
shall automatically be converted into and represent only the right to receive
Parent Common Stock as provided in Section 1.6 of this Agreement and in
-----------
accordance with Section 1.8 of this Agreement. The Company shall give Parent (i)
-----------
prompt notice of any written demands received by the Company to require the
Company to purchase shares of the Company Capital Stock, withdrawals of such
demands, and any other instruments served pursuant to the California Law and
received by the Company and (b) the opportunity to participate in all
negotiations and proceedings with respect to such demands. The Company shall
not, except with the prior written consent of Parent, voluntarily make any
payment with respect to any such demands or offer to settle or settle any such
demands.
Section 1.8 Surrender of Certificates.
-------------------------
(a) Exchange Agent. American Stock Transfer & Trust Company shall
--------------
serve as exchange agent (the "Exchange Agent") in the Merger.
(b) Parent to Provide Common Stock. Promptly after the Effective
------------------------------
Time, Parent shall make available to the Exchange Agent for exchange in
accordance with this Article I the shares of Parent Common Stock issuable
---------
pursuant to Section 1.6(a) in exchange for outstanding shares of the Company
-------------
Capital Stock; provided, however, that on behalf of the Company Shareholders,
-------- -------
pursuant to Section 7.2 hereof, Parent shall deposit into an escrow account 10%
-----------
of the Merger Shares issued to the Escrow Agent on behalf of the Company
Shareholders pursuant to Section 1.6(a) (collectively, the "Escrow Amount"). The
-------------
portion of the Escrow Amount contributed on behalf of each Company Shareholder
shall be in proportion to the aggregate number of Merger Shares which such
Company Shareholder would otherwise be entitled to receive in the Merger by
virtue of ownership of outstanding shares of Company Capital Stock.
(c) Exchange Procedures. Promptly after the Effective Time, the
-------------------
Surviving Corporation shall cause to be mailed or provided at the Closing to
each Company Shareholder (i) a letter of transmittal (which shall specify that
delivery shall be effected, and risk of loss and title
4
<PAGE>
to the certificates (the "Certificates"), which immediately prior to the
Effective Time represented outstanding shares of Company Capital Stock whose
shares were converted into the right to receive Merger Shares pursuant to
Section 1.6(a), shall pass, only upon delivery of the Certificates to the
--------------
Exchange Agent and shall be in such form and have such other provisions
consistent herewith as Parent may reasonably specify) and (ii) instructions for
use in effecting the surrender of the Certificates in exchange for certificates
representing Merger Shares. Upon surrender of a Certificate for cancellation to
the Exchange Agent or to such other agent or agents as may be appointed by
Parent, together with such letter of transmittal and a Shareholder Certificate
in the form of Exhibit E hereto, duly completed and validly executed in
---------
accordance with the instructions thereto, a Company Shareholder shall be
entitled to receive in exchange therefor a certificate representing the number
of whole Merger Shares (less the number of shares of Parent Common Stock to be
deposited in the Escrow Fund on such holder's behalf pursuant to paragraph (b)
above) to which such Company Shareholder is entitled pursuant to Section 1.6,
-----------
and the Certificate so surrendered shall forthwith be canceled. As soon as
practicable after the Effective Time, and subject to and in accordance with the
provisions of Article VII hereof, Parent shall cause to be distributed to the
-----------
Escrow Agent (as defined in Article VII) a certificate or certificates
-----------
representing that number of shares of Parent Common Stock equal to the Escrow
Amount, which shall be registered in the name of the Escrow Agent. Such shares
shall be beneficially owned by the holders on whose behalf such shares were
deposited in the Escrow Fund and shall be available to compensate Parent as
provided in Article VII. Until so surrendered, each outstanding Certificate
-----------
that, prior to the Effective Time, represented shares of the Company Capital
Stock will be deemed from and after the Effective Time, for all corporate
purposes, other than the payment of dividends, to evidence the ownership of the
number of full shares of Parent Common Stock into which such shares of the
Company Capital Stock shall have been so converted.
(d) Distributions With Respect to Unexchanged Shares. No dividends or
------------------------------------------------
other distributions declared or made after the Effective Time with respect to
Parent Common Stock with a record date after the Effective Time will be paid to
the holder of any unsurrendered Certificate with respect to the shares of Parent
Common Stock represented thereby until the holder of record of such Certificate
shall surrender such Certificate. Subject to applicable law, following surrender
of any such Certificate, there shall be paid to the record holder of the
certificates representing whole shares of Parent Common Stock issued in exchange
therefor, without interest, at the time of such surrender, the amount of
dividends or other distributions with a record date after the Effective Time
theretofore paid with respect to such whole shares of Parent Common Stock.
(e) Transfers of Ownership. If any certificate for shares of Parent
----------------------
Common Stock is to be issued in a name other than that in which the certificate
surrendered in exchange therefor is registered, it will be a condition of the
issuance thereof that the Certificate so surrendered will be properly endorsed
and otherwise in proper form for transfer and that the person requesting such
exchange will have paid to Parent or any agent designated by it any transfer or
other taxes required by reason of the issuance of a certificate for shares of
Parent Common Stock in any name other than that of the registered holder of the
certificate surrendered, or established to the satisfaction of Parent or any
agent designated by it that such tax has been
5
<PAGE>
paid or is not payable.
(f) Lost, Stolen or Destroyed Certificates. In the event any
--------------------------------------
certificates evidencing shares of the Company Capital Stock shall have been
lost, stolen or destroyed, the Exchange Agent shall issue in exchange for such
lost, stolen or destroyed certificates, upon the making of an affidavit of that
fact by the holder thereof, such shares of Parent Common Stock; provided,
--------
however, that Parent may, in its discretion and as a condition precedent to the
-------
issuance thereof, require the owner of such lost, stolen or destroyed
certificates to deliver a bond in such sum as it may reasonably direct as
indemnity against any claim that may be made against Parent or the Exchange
Agent with respect to the certificates alleged to have been lost, stolen or
destroyed.
(g) No Liability. Notwithstanding anything to the contrary in this
------------
Section 1.8, none of the Exchange Agent, the Surviving Corporation or any party
-----------
hereto shall be liable to a holder of shares of Parent Common Stock or the
Company Capital Stock for any amount properly paid to a public official pursuant
to any applicable abandoned property, escheat or similar law.
Section 1.9 No Further Ownership Rights in Company Capital Stock. All
----------------------------------------------------
shares of Parent Common Stock issued upon the surrender for exchange of shares
of the Company Capital Stock in accordance with the terms hereof shall be deemed
to be full satisfaction of all rights pertaining to such shares of the Company
Capital Stock, and there shall be no further registration of transfers on the
records of the Surviving Corporation of shares of the Company Capital Stock that
were outstanding immediately prior to the Effective Time. If, after the
Effective Time, any Certificates are presented to the Surviving Corporation for
any reason, they shall be canceled and exchanged as provided in this Article I.
---------
Section 1.10 Dissenting Shares After Payment of Fair Value. Dissenting
---------------------------------------------
Shares, if any, after payments in respect thereto have been pursuant to the
California Law, shall be canceled.
Section 1.11 Tax and Accounting Consequences. It is intended by the
-------------------------------
parties hereto that the Merger shall constitute a reorganization within the
meaning of Section 368 of the Code and constitute a purchase for accounting
purposes. Each party has consulted with its own tax advisors and accountants
with respect to the tax and accounting consequences, respectively, of the
Merger.
Section 1.12 Taking of Necessary Action; Further Action. If at any time
------------------------------------------
after the Effective Time, any such further action is necessary or desirable to
carry out the purposes of this Agreement and to vest the Surviving Corporation
with full right, title and possession to all assets, property, rights,
privileges, powers and franchises of the Company and Sub, the officers and
directors of the Company and Sub are fully authorized in the name of their
respective corporations or otherwise to take, and will take, all such lawful and
necessary action.
6
<PAGE>
ARTICLE II.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to Parent and Sub, subject to such
exceptions as are specifically disclosed in the disclosure letter (referencing
the appropriate section and paragraph numbers) supplied by the Company to Parent
(the "Disclosure Letter") and dated as of the date hereof, as set forth below.
Section 2.1 Organization of the Company. The Company is a corporation
---------------------------
duly organized, validly existing and in good standing under the laws of the
State of California. The Company has the corporate power to own its properties
and to carry on its business as now being conducted. The Company is duly
qualified to do business and in good standing as a foreign corporation in each
jurisdiction in which the failure to be so qualified would have a material
adverse effect on the business, assets (including intangible assets), financial
condition or results of operations of the Company (hereinafter referred to as a
"Material Adverse Effect"). The Company has delivered a true and correct copy of
its Articles of Incorporation and Bylaws, each as amended to date, to Parent.
Section 2.1 of the Disclosure Letter lists the directors and officers of the
Company. The operations now being conducted by the Company have not been
conducted under any other name.
Section 2.2 Company Capital Structure.
-------------------------
(a) The authorized capital stock of the Company consists of
100,000,000 shares of Common Stock, of which 5,200,000shares are issued and
outstanding on the date hereof and 20,000,000 shares of Preferred Stock, of
which 2,100,000 shares of Series A Preferred Stock are issued and outstanding on
the date hereof. The Company Capital Stock is held by the Company Shareholders,
with the domicile addresses and in the amounts set forth on Section 2.2(a) of
the Disclosure Letter. All outstanding shares of the Company's Capital Stock are
duly authorized, validly issued, fully paid and non-assessable and not subject
to preemptive rights created by statute, the Articles of Incorporation or Bylaws
of the Company or any agreement to which the Company is a party or by which it
is bound.
(b) There are no options, warrants, calls, rights, commitments or
agreements of any character, written or oral, to which the Company is a party or
by which it is bound obligating the Company to issue, deliver, sell, repurchase
or redeem, or cause to be issued, delivered, sold, repurchased or redeemed, any
shares of the capital stock of the Company or obligating the Company to grant,
extend, accelerate the vesting of, change the price of, otherwise amend or enter
into any such option, warrant, call, right, commitment or agreement.
Section 2.3 Subsidiaries. The Company does not have, and never has had,
------------
any subsidiaries or affiliated companies and does not otherwise own, and has not
otherwise owned, any shares in the capital of or any interest in, or control,
directly or indirectly, any other corporation, partnership, association, joint
venture or other business entity.
Section 2.4 Authority. The Company has all requisite power and authority
---------
to enter
7
<PAGE>
into this Agreement and any Related Agreements (as hereinafter defined) to which
it is a party and to consummate the transactions contemplated hereby and
thereby. The execution and delivery of this Agreement and any Related Agreements
to which it is a party and the consummation of the transactions contemplated
hereby and thereby have been duly authorized by all necessary corporate action
on the part of the Company, and no further action is required on the part of the
Company to authorize the Agreement, any Related Agreements to which it is a
party and the transactions contemplated hereby and thereby. This Agreement and
any Related Agreements to which the Company is a party have been duly executed
and delivered by the Company, and, assuming the due authorization, execution and
delivery by the other parties hereto and thereto, constitute the valid and
binding obligation of the Company, enforceable in accordance with their
respective terms, subject to the laws of general application relating to
bankruptcy, insolvency and the relief of debtors and to rules of law governing
specific performance, injunctive relief or other equitable remedies. The
"Related Agreements" shall mean all such ancillary agreements required in this
Agreement to be executed and delivered in connection with the transactions
contemplated hereby, including, but not limited to, the Affiliate Agreements and
the Non-competition Agreements.
Section 2.5 No Conflict. Except as set forth in Section 2.5 of the
-----------
Disclosure Letter, the execution and delivery by the Company of this Agreement
and any Related Agreements to which it is a party do not, and the consummation
of the transactions contemplated hereby and thereby will not, conflict with, or
result in any violation of, or default under (with or without notice or lapse of
time, or both), or give rise to a right of termination, cancellation,
modification or acceleration of any obligation or loss of any benefit under (any
such event, a "Conflict") (i) any provision of the Articles of Incorporation and
Bylaws of the Company, as amended, (ii) any mortgage, indenture, lease, contract
or other agreement or instrument, permit, concession, franchise or license to
which the Company or any of its properties or assets are subject, or (iii) any
judgment, order, decree, statute, law, ordinance, rule or regulation applicable
to the Company or its properties or assets.
Section 2.6 Consents. Except as disclosed in Section 2.6 of the
--------
Disclosure Letter, no consent, waiver, approval, order or authorization of, or
registration, declaration or filing with, any court, administrative agency or
commission or other federal, state, county, local or other foreign governmental
authority, instrumentality, agency or commission ("Governmental Entity") or any
third party, including a party to any agreement with the Company (so as not to
trigger any Conflict), is required by or with respect to the Company in
connection with the execution and delivery of this Agreement and any Related
Agreements to which the Company is a party or the consummation of the
transactions contemplated hereby and thereby, except for (i) such consents,
waivers, approvals, orders, authorizations, registrations, declarations and
filings as may be required under applicable securities laws thereby, and (ii)
the filing of the Merger Agreement with the Secretary of State of the State of
California.
Section 2.7 Company Financial Statements. Section 2.7 of the Disclosure
----------------------------
Letter sets forth the Company's balance sheet as of June 30, 2000 and the
related statements of income and cash flow for the period from inception to June
30, 2000 (the "Unaudited Financials"). The Unaudited Financials are correct in
all material respects and have been prepared in accordance
8
<PAGE>
with generally accepted accounting principles consistent with the reporting
practices and principles used by Parent from time to time for preparing its
public filings under the Securities Exchange Act of 1934, as amended ("GAAP"),
applied on a basis consistent throughout the periods indicated and consistent
with each other. The Unaudited Financials present fairly the financial
condition, operating results and cash flows of the Company as of the dates and
during the periods indicated therein, subject in the case of the Unaudited
Financials, to normal year-end adjustments, which will not be material in amount
or significance. The Company's unaudited balance sheet as of June 30, 2000 shall
be referred to as the "Current Balance Sheet."
Section 2.8 No Undisclosed Liabilities. Except as set forth in Section
--------------------------
2.8 of the Disclosure Letter, the Company does not have any liability,
indebtedness, obligation, expense, claim, deficiency, guaranty or endorsement of
any type, whether accrued, absolute, contingent, matured, unmatured or other
(whether or not required to be reflected in financial statements in accordance
with GAAP), which individually or in the aggregate (i) has not been reflected in
the materials provided to accountants for Parent for the purposes of preparation
of audited financial statements for the period from July 1, 2000 to September
30, 2000, or (ii) has not arisen in the ordinary course of business consistent
with past practices.
Section 2.9 No Changes. Except as set forth in Section 2.9 of the
----------
Disclosure Letter, since June 30, 2000, there has not been, occurred or arisen
any:
(a) transaction by the Company involving in excess of $5,000, except
in the ordinary course of business as conducted on that date and consistent with
past practices;
(b) amendments or changes to the Articles of Incorporation or Bylaws
of the Company;
(c) capital expenditure or commitment by the Company, either
individually or in the aggregate, exceeding $5,000;
(d) destruction of, damage to or loss of any material assets,
business or customer of the Company (whether or not covered by insurance),
either individually or in the aggregate, in excess of $5,000;
(e) labor trouble or claim of wrongful discharge or other unlawful
labor practice or action;
(f) change in accounting methods or practices (including any change
in depreciation or amortization policies or rates) by the Company;
(g) revaluation by the Company of any of its assets;
(h) declaration, setting aside or payment of a dividend or other
distribution with respect to the Company Capital Stock, or any direct or
indirect redemption, purchase or other acquisition by the Company of any of the
Company Common Stock;
9
<PAGE>
(i) increase in the salary or other compensation payable or to become
payable by the Company to any of its officer, directors, employees or advisors,
or the declaration, payment or commitment or obligation of any kind for the
payment, by the Company, of a bonus or other additional salary or compensation
to any such person;
(j) agreement, contract, lease or commitment or any extension or
modification the terms of any such agreement, contract, lease or commitment,
involving in excess of $5,000, individually, or $10,000, in the aggregate;
(k) sale, lease, license or other disposition of any of the assets or
properties of the Company, or any creation of any security interest in such
assets or properties, in excess of $5,000, except in the ordinary course of
business as conducted on that date and consistent with past practices;
(l) amendment or termination of any material contract, agreement or
license to which the Company is a party or by which it is bound;
(m) loan by the Company to any person or entity, incurring by the
Company of any indebtedness, guaranteeing by the Company of any indebtedness,
issuance or sale of any debt securities of the Company or guaranteeing of any
debt securities of others, except for advances to employees for travel and
business expenses in the ordinary course of business, consistent with past
practices;
(n) waiver or release of any right or claim of the Company, including
any write-off or other compromise of any account receivable of the Company,
either individually or in the aggregate, exceeding $5,000;
(o) the commencement or notice or threat of commencement of any
lawsuit or proceeding against investigation of the Company or its affairs;
(p) notice of any claim of ownership by a third party of any Company
Intellectual Property (as defined in Section 2.13 below) or of infringement by
------------
the Company of any third party's Intellectual Property rights;
(q) issuance or sale, or contract to issue or sell, by the Company of
any of its shares of capital stock, or securities exchangeable, convertible or
exercisable therefor, or of any other of its securities;
(r) material change in pricing or royalties set or charged by the
Company to its customers or licensees or in pricing or royalties set or charged
by persons who have licensed Intellectual Property (as defined in Section 2.13
------------
below) to the Company;
(s) event or condition of any character that has had a Material
Adverse Effect on the Company; or
(t) negotiation or agreement by the Company or any officer or
employees
10
<PAGE>
thereof to do any of the things described in the preceding clauses (a) through
(s) (other than negotiations with Parent and its representatives regarding the
transactions contemplated by this Agreement).
Section 2.10 Tax Matters.
-----------
(a) Definition of Taxes. For the purposes of this Agreement, "Tax"
-------------------
or, collectively, "Taxes," means (i) any and all federal, state, local and
foreign taxes, assessments and other governmental charges, duties, impositions
and liabilities, including taxes based upon or measured by gross receipts,
income, profits, sales, use and occupation, and value added, ad valorem,
transfer, franchise, withholding, payroll, recapture, employment, excise and
property taxes, together with all interest, penalties and additions imposed with
respect to such amounts; (ii) any liability for the payment of any amounts of
the type described in clause (i) as a result of being a member of an affiliated,
consolidated, combined or unitary group for any period; and (iii) any liability
for the payment of any amounts of the type described in clause (i) or (ii) as a
result of any express or implied obligation to indemnify any other person or as
a result of any obligations under any agreements or arrangements with any other
person with respect to such amounts and including any liability for taxes of a
predecessor entity.
(b) Tax Returns and Audits. Except as set forth in Section 2.10 of
----------------------
the Disclosure Letter:
(i) The Company as of the Effective Time will have prepared
and timely filed or made a timely request for extension for all required
federal, state, local and foreign returns, estimates, information statements and
reports (collectively, the "Returns") relating to any and all Taxes concerning
or attributable to the Company, or its operations and such Returns are true and
correct and have been completed in accordance with applicable law.
(ii) The Company as of the Effective Time (A) will have paid or
accrued all Taxes it is required to pay or accrue as shown on the Returns and
(B) will have withheld and timely remitted with respect to its employees all
income taxes and other Taxes required to be withheld and remitted.
(iii) The Company has not been delinquent in the payment of any
Tax nor is there any Tax deficiency outstanding, assessed or proposed against
the Company, nor has the Company executed any waiver of any statute of
limitations on or extended the period for the assessment or collection of any
Tax.
(iv) No audit or other examination of any Return of the Company
is presently in progress, nor has the Company been notified in writing of any
request for such an audit or other examination.
(v) The Company has no liabilities for unpaid federal, state,
local and foreign Taxes which have not been accrued or reserved against in
accordance with GAAP on the Current Balance Sheet, whether asserted or
unasserted, contingent or otherwise, and the Company has not incurred any
liability for Taxes since the date of the Current Balance Sheet
11
<PAGE>
other than in the ordinary course of business.
(vi) The Company has made available to Parent or its legal
counsel, copies of all foreign, federal and state income and all state sales and
use Returns filed for all years as to which any applicable statute of
limitations has not expired.
(vii) There are (and immediately following the Effective Time
there will be) no liens, pledges, charges, claims, restrictions on transfer,
mortgages, security interests or other encumbrances of any sort (collectively,
"Liens") on the assets of the Company relating to or attributable to Taxes other
than Liens for taxes not yet due and payable.
(viii) The Company has no knowledge of any basis for the
assertion of any claim relating or attributable to Taxes which, if adversely
determined, would result in any Lien on the assets of the Company.
(ix) As of the Effective Time, there will not be any contract,
agreement, plan or arrangement, including, but not limited to, the provisions of
this Agreement, covering any employee or former employee of the Company that,
individually or collectively, could give rise to the payment of any amount that
would not be deductible by the Company as an expense under applicable law.
(x) The Company is not a party to any tax sharing,
indemnification or allocation agreement nor does the Company owe any amount
under any such agreement.
(xi) The Company's tax basis in its assets for purposes of
determining its future amortization, depreciation and other federal income tax
deductions is accurately reflected on the Company's tax books and records.
(xii) The Company is not, and has not been at any time, a
"United States Real Property Holding Corporation" within the meaning of Section
897(c)(2) of the Code.
(xiii) The Company is an accrual basis taxpayer and its tax basis
and its assets for purposes of determining its future amortization, depreciation
and other federal income tax deductions is accurately reflected on the Company's
tax books and records.
(c) Executive Compensation Tax. The Company does not have, or will
--------------------------
not have as a result of the transactions contemplated by this Agreement, any
liabilities for Taxes (for example under Section 280G of the Code) as a result
of the amount of remuneration paid or to be paid to its employees.
Section 2.11 Restrictions on Business Activities. Except as set forth in
-----------------------------------
Section 2.11 of the Disclosure Letter, there is no agreement (non-competition or
otherwise), commitment, judgment, injunction, order or decree to which the
Company is a party or otherwise binding upon the Company that has or may have
the effect of prohibiting or impairing any business practice of the Company, any
acquisition of property (tangible or intangible) by the Company or the conduct
of business by the Company. Without limiting the foregoing, the Company has not
entered into
12
<PAGE>
any agreement under which the Company is restricted from providing services to
customers or potential customers or any class of customers, in any geographic
area, during any period of time or in any segment of the market.
Section 2.12 Title of Properties; Absence of Liens and Encumbrances;
------------------------------------------------------
Condition of Equipment.
----------------------
(a) The Company does not own any real property, nor has it ever owned
any real property. Section 2.12(a) of the Disclosure Letter sets forth a list of
all real property currently leased by the Company, the name of the lessor, the
date of the lease and each amendment thereto and, with respect to any current
lease, the aggregate annual rental and/or other fees payable under any such
lease. All such current leases are in full force and effect in accordance with
their respective terms, and there is not, under any of such leases, any existing
material default or material event of default (or event which with notice or
lapse of time, or both, would constitute a material default).
(b) The Company has good and indefeasible title to, or, in the case
of leased properties and assets, enforceable leasehold interests in, all of its
tangible properties and assets used or held for use in its business, free and
clear of any liens, except as reflected in the Current Balance Sheet and except
for liens for taxes not yet due and payable and such imperfections of title and
encumbrances, if any, which are not material in character, amount or extent, and
which do not materially detract from the value, or materially interfere with the
present use, of the property subject thereto or affected thereby.
(c) Section 2.12(c) of the Disclosure Letter lists all material items
of equipment (the "Equipment") owned or leased by the Company and such Equipment
is, (i) adequate for the conduct of the business of the Company as currently
conducted and (ii) in good operating condition, regularly and properly
maintained, subject to normal wear and tear.
(d) The Company has sole and exclusive ownership, free and clear of
any liens, of all customer files and other customer information relating to the
Company's current customers (the "Customer Information"). No third party
possesses any claims or rights with respect to use of the Customer Information.
Section 2.13 Intellectual Property.
---------------------
(a) For the purposes of this Agreement, the following terms have the
following definitions:
"Intellectual Property" shall mean any or all of the following and all
rights in, arising out of, or associated therewith anywhere in the world: (i)
all United States, international and foreign patents and applications therefor
and all reissues, divisions, renewals, extensions, provisionals, continuations
and continuations-in-part thereof; (ii) all inventions (whether patentable or
not), invention disclosures, improvements, trade secrets, proprietary
information, know how, technology, technical data and customer lists, and all
documentation relating to any of the foregoing; (iii) all copyrights, copyrights
registrations and applications therefor; (iv) all
13
<PAGE>
industrial designs and any registrations and applications therefor throughout
the world; (v) all trade names, logos, common law trademarks and service marks,
trademark and service mark registrations and applications therefor and all
goodwill associated therewith throughout the world; (vi) all databases and data
collections and all rights therein throughout the world; (vii) all computer
software including all source code, object code, firmware, development tools,
files, records and data, all media on which any of the foregoing is recorded;
(viii) any similar, corresponding or equivalent rights to any of the foregoing;
and (ix) all documentation related to any of the foregoing.
"Company Intellectual Property" shall mean any Intellectual Property
that is owned by, or exclusively licensed to, the Company.
"Registered Intellectual Property" shall mean all United States,
international and foreign: (i) patents, patent applications (including
provisional applications); (ii) registered trademarks, applications to register
trademarks, intent-to-use applications, or other registrations or applications
related to trademarks; (iii) registered copyrights and applications for
copyright registration; and (iv) any other Company Intellectual Property that is
the subject of an application, certificate, filing, registration or other
document issued by, filed with, or recorded by, any state, government or other
public legal authority.
(b) Section 2.13(b) of the Disclosure Letter lists all Registered
Intellectual Property owned by, or filed in the name of, the Company (the
"Company Registered Intellectual Property").
(c) The Company (i) owns and has good and exclusive title to each
item of Company Intellectual Property, including all Company Registered
Intellectual Property listed on Section 2.13(b) of the Disclosure Letter, free
and clear of any liens, (ii) is the exclusive owner of or has the permission of
the owner to use all trademarks and trade names used in connection with the
operation or conduct of the business of the Company, including the sale of any
products or the provision of any services by the Company and (iii) owns
exclusively, and has good title to, all copyrighted works that are Company
products or other works of authorship that the Company otherwise purports to
own.
(d) Except as set forth in Section 2.13(d) of the Disclosure Letter,
to the extent that any work, invention or material has been developed or created
by a third party for the Company, the Company has a written agreement with such
third party with respect thereto and the Company thereby has obtained ownership
of, and is the exclusive owner of, all Intellectual Property in such work,
material or invention by operation of law or by valid assignment.
(e) Except as set forth in Section 2.13(e) of the Disclosure Letter,
the Company has not transferred ownership of, or granted any exclusive license
with respect to, any Intellectual Property that is or was Company Intellectual
Property to any third party.
(f) The operation of the business of the Company as it currently is
conducted or is reasonably contemplated to be conducted, including to the extent
applicable the Company's design, development, manufacture and sale of the
products (including products currently under
14
<PAGE>
development) or services of the Company, does not infringe or misappropriate the
Intellectual Property of any other person, violate the rights of any person
(including rights to privacy or publicity), or constitute unfair competition or
trade practices under the laws of any jurisdiction, and the Company has not
received written notice from any person claiming that such operation or any act,
product or service of the Company infringes or misappropriates the Intellectual
Property of any third party or constitutes unfair competition or trade practices
under the laws of any jurisdiction.
(g) The Company owns or has the right to use all Intellectual
Property necessary to the conduct of its business as it is currently conducted.
(h) Each item of the Company Registered Intellectual Property is
valid and subsisting, all necessary registration, maintenance and renewal fees
that have come due in connection with such Company Registered Intellectual
Property have been paid and all necessary documents and certificates in
connection with such Company Registered Intellectual Property have been filed
with the relevant patent, copyright, trademark or other authorities in the
United States or foreign jurisdictions, as the case may be, for the purposes of
maintaining such Company Registered Intellectual Property.
(i) There are no contracts, licenses and agreements between the
Company and any other person with respect to the Company Intellectual Property
under which there is any dispute known to the Company regarding the scope of
such agreement, or performance under such agreement including with respect to
any payments to be made or received by the Company thereunder.
(j) To the knowledge of the Company, no person is infringing or
misappropriating any of the Company Intellectual Property.
(k) The Company has taken all reasonable steps required to protect
the Company's rights in confidential information and trade secrets of the
Company or provided by any third party to the Company. Without limiting the
foregoing, the Company has, and enforces, a policy requiring each employee and
contractor to execute proprietary information and confidentiality agreements
substantially in the Company's standard forms, and, except as set forth in
Section 2.13(k) of the Disclosure Letter, all current employees and contractors
of the Company have executed such an agreement.
(l) There are no proceedings or actions instituted by the Company or
of which the Company has received written notice before any court, tribunal
(including the United States Patent and Trademark Office (the "PTO") or
equivalent authority anywhere in the world) related to any Company Intellectual
Property.
(m) No Company Intellectual Property or product or service of the
Company is subject to any proceeding or outstanding decree, order, judgment,
agreement or stipulation that restricts in any manner the use, transfer or
licensing thereof by the Company or may affect the validity, use or
enforceability of such Company Intellectual Property.
15
<PAGE>
(n) No (i) product, service or publication of the Company, (ii)
material published or distributed by the Company or (iii) conduct or statement
of Company, constitutes obscene material or a defamatory statement or material.
Section 2.14 Agreements, Contracts and Commitments.
-------------------------------------
(a) Except as set forth on Section 2.14(a) of the Disclosure Letter,
the Company does not have and is not bound by:
(i) any contract, license or agreement to which the Company is
a party (A) with respect to the Company Intellectual Property licensed or
transferred to any third party or (3) pursuant to which a third party has
licensed or transferred any Intellectual Property to the Company, with a value
or cost in excess of $5,000;
(ii) any employment or consulting agreement, contract or
commitment with an employee or individual consultant or salesperson or
consulting or sales agreement, contract or commitment with a firm or other
organization;
(iii) any agreement or plan, including, without limitation, any
stock option plan, stock appreciation rights plan or stock purchase plan, any of
the benefits of which will be increased, or the vesting of benefits of which
will be accelerated, by the occurrence of any of the transactions contemplated
by this Agreement or the value of any of the benefits of which will be
calculated on the basis of any of the transactions contemplated by this
Agreement;
(iv) any fidelity or surety bond or completion bond;
(v) any lease of personal property with fixed annual rental
payments in excess of $5,000;
(vi) any contract, license or agreement between the Company and
any third party wherein or whereby the Company has agreed to, or assumed, any
obligation or duty to warrant, indemnify, hold harmless or otherwise assume or
incur any obligation or liability with respect to the infringement or
misappropriation by the Company or such third party of the Intellectual Property
of any third party;
(vii) any agreement, contract or commitment containing any
covenant limiting the freedom of the Company to engage in any line of business
or to compete with any person;
(viii) any agreement, contract or commitment relating to capital
expenditures and involving future payments in excess of $5,000;
(ix) any agreement, contract or commitment relating to the
disposition or acquisition of assets or any interest in any business enterprise
outside the ordinary course of the Company's business;
(x) any mortgages, indentures, loans or credit agreements,
security
16
<PAGE>
agreements or other agreements or instruments relating to the borrowing of money
or extension of credit other than trade credit;
(xi) any purchase order or contract for the purchase of
materials involving $5,000 or more;
(xii) any construction contracts;
(xiii) any distribution, joint marketing or development
agreement; or
(xiv) any other agreement, contract or commitment that involves
$5,000 or more or is not cancelable without penalty within thirty (30) days.
(b) Except as disclosed in Section 2.14(b) of the Disclosure Letter,
the Company is in compliance with and has not breached, violated or defaulted
under, or received notice that it has breached, violated or defaulted under, any
of the terms or conditions of any agreement, contract, license or commitment to
which it is a party or by which it is bound (any such agreement, contract,
license or commitment, a "Contract"), and the Company is not aware of any event
that would constitute such a breach, violation or default with the lapse of
time, giving of notice or both. Each Contract is in full force and effect, and,
to the knowledge of the Company, except as otherwise disclosed in Section
2.14(b) of the Disclosure Letter, all other parties to each Contract are in
compliance with, and have not breached any term of, such Contract. The Company
has obtained or will obtain prior to the Closing Date, all necessary consents,
waivers and approvals of parties to any Contract as are required thereunder in
connection with the Merger or to remain in effect without modification after the
Closing. Following the Effective Time, the Surviving Corporation will be
permitted to exercise all of the Company's rights under the Contracts to the
same extent the Company would have been able to had the Merger not occurred and
without the payment of any additional amounts or consideration other than
ongoing fees, royalties or payments which the Company would otherwise be
required to pay.
Section 2.15 Interested Party Transactions. Except as disclosed in
-----------------------------
Section 2.15 of the Disclosure Letter, no officer, director or shareholder of
the Company (nor any ancestor, sibling, descendant or spouse of any of such
persons, or any trust, partnership or corporation in which any of such persons
has or has had an interest), has or has had, directly or indirectly, (i) any
interest in any entity that furnished or sold, or furnishes or sells, services
or products that the Company furnishes or sells, or proposes to furnish or sell,
or (ii) any interest in any entity that purchases from or sells or furnishes to
the Company any goods or services or (iii) a beneficial interest in any
Contract; provided, however, that ownership of no more than one percent (1%) of
-------- -------
the outstanding voting stock of a publicly traded corporation and no more than
5% of the outstanding equity of any other entity shall not be deemed an
"interest in any entity" for purposes of this Section 2.15.
------------
Section 2.16 Governmental Authorization. Section 2.16 of the Disclosure
--------------------------
Letter accurately lists each material consent, license, permit, grant or other
authorization issued to the Company by a governmental entity (i) pursuant to
which the Company currently operates or
17
<PAGE>
holds any interest in any of its properties or (ii) which is required for the
operation of its business or the holding of any such interest (herein
collectively called "Company Authorizations"). The Company Authorizations are in
full force and effect and constitute all Company Authorizations required to
permit the Company to operate or conduct its business or hold any interest in
its properties or assets.
Section 2.17 Litigation. Except as disclosed in Section 2.17 of the
----------
Disclosure Letter, there is no action, suit or proceeding of any nature pending,
or to the Company's knowledge threatened, against the Company, its properties or
any of its officers or directors, nor, to the knowledge of the Company, is there
any reasonable basis therefor. There is no investigation pending or, to the
Company's knowledge threatened, against the Company, its properties or any of
its officers or directors (nor, to the best knowledge of the Company, is there
any reasonable basis therefor) by or before any governmental entity. No
governmental entity has at any time challenged or questioned the legal right of
the Company to conduct its operations as presently or previously conducted.
Section 2.18 Accounts Receivable.
-------------------
(a) The Company has made available to Parent a list of all accounts
receivable of the Company ("Accounts Receivable") as of September 30, 2000 along
with a range of days elapsed since invoice.
(b) All Accounts Receivable of the Company arose in the ordinary
course of business, are carried at values determined in accordance with GAAP
consistently applied and are collectible except to the extent of reserves
therefor set forth in the Current Balance Sheet. No person has any lien on any
of such Accounts Receivable and no request or agreement for deduction or
discount has been made with respect to any of such Accounts Receivable.
Section 2.19 Minute Books. The minute books of the Company made available
------------
to counsel for Parent are the only minutes of the Company and contain a
reasonably accurate summary of all meetings of the Board of Directors (or
committees thereof) of the Company and its shareholders or actions by written
consent since the incorporation of the Company.
Section 2.20 Environmental Matters.
---------------------
(a) Hazardous Material. The Company has not (i) operated any
------------------
underground storage tanks at any property that the Company has at any time
owned, operated, occupied or leased, or (ii) illegally released any material
amount of any substance that has been designated by any Governmental Entity or
by applicable federal, state or local law to be radioactive, toxic, hazardous or
otherwise a danger to health or the environment, including, without limitation,
PCBs, asbestos, petroleum, and urea-formaldehyde and all substances listed as
hazardous substances pursuant to the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended, or defined as a hazardous
waste pursuant to the United States Resource Conservation and Recovery Act of
1976, as amended, and the regulations promulgated pursuant to said laws (a
"Hazardous Material"), but excluding office and janitorial supplies properly and
safely maintained. No Hazardous Materials are present as a result of the
deliberate
18
<PAGE>
actions of the Company or, to the Company's knowledge, as a result of any
actions of any third party or otherwise, in, on or under any property, including
the land and the improvements, ground water and surface water thereof, that the
Company has at any time owned, operated, occupied or leased.
(b) Hazardous Materials Activities. The Company has not transported,
------------------------------
stored, used, manufactured, disposed of, released or exposed its employees or
others to Hazardous Materials in violation of any law in effect on or before the
Effective Time, nor has the Company disposed of, transported, sold, or
manufactured any product containing a Hazardous Material (any or all of the
foregoing being collectively referred to as "Hazardous Materials Activities") In
violation of any rule, regulation, treaty or statute promulgated by any
Governmental Entity in effect prior to or as of the date hereof to prohibit,
regulate or control Hazardous Materials or any Hazardous Material Activity.
(c) Permits. The Company currently holds all environmental approvals,
-------
permits, licenses, clearances and consents (collectively, the "Environmental
Permits") necessary for the conduct of the Company's Hazardous Materials
Activities and other businesses of the Company as such activities and businesses
are currently being conducted.
(d) Environmental Liabilities. No action, proceeding, revocation
-------------------------
proceeding, amendment procedure, writ, injunction or claim is pending, or to the
Company's knowledge, threatened concerning any Environmental Permit, Hazardous
Material or any Hazardous Materials Activity of the Company. The Company is not
aware of any fact or circumstance which could involve the Company in any
environmental litigation or impose upon the Company any environmental liability.
Section 2.21 Brokers' and Finders' Fees; Third Party Expenses. Except as
------------------------------------------------
set forth in Section 2.21 of the Disclosure Letter, the Company has not
incurred, nor will it incur, directly or indirectly, any liability for brokerage
or finders' fees or agents' commissions or any similar charges in connection
with the Agreement or any transaction contemplated hereby. Section 2.21 of the
Disclosure Letter sets forth the principal terms and conditions of any
agreement, written or oral, with respect to such fees. Section 2.21 of the
Disclosure Letter sets forth the Company's current reasonable estimate of all
Third Party Expenses (as defined in Section 5.4) expected to be incurred by the
-----------
Company in connection with the negotiation and effectuation of the terms and
conditions of this Agreement and the transactions contemplated hereby.
Section 2.22 Employee Benefit Plans and Compensation.
---------------------------------------
(a) Definitions. For purposes of this Section 2.22, the following
----------- ------------
terms shall have the meanings set forth below:
(i) "Affiliate" shall mean any other person or entity under common
control with the Company within the meaning of Section 414(b), (c), (m) or (o)
of the Code and the regulations thereunder;
(ii) "Employee Plan" shall refer to any plan, program, policy,
practice,
19
<PAGE>
contract, agreement or other arrangement providing for bonuses, severance,
termination pay, deferred compensation, pensions, profit sharing, performance
awards, stock or stock-related awards, fringe benefits or other employee
benefits of any kind, whether formal or informal, written or otherwise, funded
or unfunded and whether or not legally binding, including, without limitation,
any plan which is or has been maintained, contributed to, or required to be
contributed to, by the Company or any Affiliate for the benefit of any Employee
(as defined below), and pursuant to which the Company or any Affiliate has or
may have any material liability, contingent or otherwise;
(iii) "Employee" shall mean any current, former or retired
employee, consultant, officer, or director of the Company or any Affiliate; and
(iv) "Employee Agreement" shall refer to each employment,
severance, consulting or similar agreement or contract between the Company or
any Affiliate and any Employee;
(b) List of Employee Plans and Agreements. Section 2.22(b) of the
-------------------------------------
Disclosure Letter contains an accurate and complete list of each Employee Plan
and each Employee Agreement, together with a schedule of all liabilities,
whether or not accrued, under each such Employee Plan or Employee Agreement. The
Company does not have any plan or commitment, whether legally binding or not, to
establish any new Employee Plan or Employee Agreement, to modify any Employee
Plan or Employee Agreement (except to the extent required by law or to conform
any such Employee Plan or Employee Agreement to the requirements of any
applicable law, in each case as previously disclosed to Parent in writing, or as
required by this Agreement), or to enter into any Employee Plan or Employee
Agreement, nor does it have any intention or commitment to do any of the
foregoing.
(c) Documents. The Company has provided to Parent (i) correct and
---------
complete copies of all documents embodying each Employee Plan and each Employee
Agreement including all amendments thereto and copies of all forms of agreement
and enrollment used therewith; (ii) the most recent annual actuarial valuations,
if any, prepared for each Employee Plan; (iii) the three most recent annual
reports (Series 5500 and all schedules thereto), if any, required under the
Employee Retirement Income Security Act of 1974, as amended ("ERISA") or the
Code in connection with each Employee Plan or related trust; (iv) the most
recent summary plan description together with the most recent summary of
material modifications, if any, required under ERISA with respect to each
Employee Plan; (v) all Internal Revenue Service ("IRS") determination letters
and rulings relating to Employee Plans and copies of all applications and
correspondence to or from the IRS or the Department of Labor ("DOL") with
respect to any Employee Plan; (vi) if the Employee Plan is funded, the most
recent annual and periodic accounting of Employee Plan assets; (vii) all
material agreements and contracts relating to each Employee Plan, including, but
not limited to, administrative service agreements, group annuity contracts and
group insurance contracts; and (viii) all communications material to any
Employee or Employees relating to any Employee Plan and any proposed Employee
Plan, in each case, relating to any amendments, terminations, establishments,
increases or decreases in benefits, acceleration of payments or vesting
schedules or other events which would result in any
20
<PAGE>
liability to the Company.
(d) Employee Plan Compliance. (i) The Company has performed all
------------------------
obligations required to be performed by it under each Employee Plan and each
Employee Plan has been established and maintained in accordance with its terms
and in compliance with all applicable laws, statutes, orders, rules and
regulations, including ERISA and the Code; (ii) each Employee Plan intended to
qualify under Section 401(a) of the Code and each trust intended to qualify
under Section 501(a) of the Code has either received a favorable determination
letter with respect to each such Employee Plan from the IRS or has remaining a
period of time under applicable Treasury regulations or IRS pronouncements in
which to apply for such a determination letter and make any amendments necessary
to obtain a favorable determination; (iii) no "prohibited transaction," within
the meaning of Section 4975 of the Code or Section 406 or 407 of ERISA, has
occurred with respect to any Employee Plan; (iv) there are no actions, suits or
claims pending, or, to the knowledge of the Company, threatened or anticipated
(other than routine claims for benefits), against any Employee Plan or against
the assets of any Employee Plan; (v) each Employee Plan can be amended,
terminated or otherwise discontinued after the Effective Time in accordance with
its terms without liability to the Company, Parent, Sub or any Affiliate (other
than ordinary administration expenses typically incurred in a termination
event); (vi) there are no inquiries or proceedings pending or, to the knowledge
of the Company or any Affiliates, threatened by the IRS or DOL with respect to
any Employee Plan; and (vii) neither the Company nor any Affiliate is subject to
any penalty or tax with respect to any Employee Plan under Section 402(i) of
ERISA or Section 4975 through 4980 of the Code.
(e) Pension Plans. The Company does not now, and has never,
-------------
maintained, established, sponsored, participated in, or contributed to, any
pension plan which is subject to Part 3 of Subtitle B of Title I of ERISA, Title
IV of ERISA or Section 412 of the Code.
(f) Multiemployer Plans. At no time has the Company contributed to or
-------------------
been requested to contribute to any multiemployer plan.
(g) No Post-Employment Obligations. No Employee Plan provides, or has
------------------------------
any liability to provide, life insurance, medical or other employee welfare
benefits to any Employee upon his or her retirement or termination of employment
for any reason, except as may be required by statute, and the Company has not
represented, promised or contracted (whether in oral or written form) to any
Employee (either individually or to Employees as a group) that such Employee(s)
would be provided with life insurance, medical or other employee welfare
benefits upon their retirement or termination of employment, except to the
extent required by statute.
(h) No COBRA Violation. Neither the Company nor any Affiliate has,
------------------
prior to the Effective Time and in any material respect, violated any of the
health care continuation requirements of the Consolidated Omnibus Budget
Reconciliation Act of 1985, as amended, or any similar provisions of state law
applicable to its employees.
(i) Effect of Transaction. The execution of this Agreement and the
---------------------
consummation of the transactions contemplated hereby will not (either alone or
upon the
21
<PAGE>
occurrence of any additional or subsequent events) constitute an event under any
Employee Plan, Employee Agreement, trust or loan that will or may result in any
payment (whether of severance pay or otherwise), acceleration, forgiveness of
indebtedness, vesting, distribution, increase in benefits or obligation to fund
benefits with respect to any Employee.
(j) Employment Matters. Except as set forth in Section 2.22(j) of the
------------------
Disclosure Letter, the Company (i) is in compliance with all applicable laws,
rules and regulations respecting employment, employment practices, terms and
conditions of employment and wages and hours, in each case, with respect to
Employees; (ii) has withheld all amounts required by law or by agreement to be
withheld from the wages, salaries and other payments to Employees; (iii) is not
liable for any arrears of wages or any taxes or any penalty for failure to
comply with any of the foregoing; and (iv) is not liable for any payment to any
trust or other fund or to any governmental or administrative authority, with
respect to unemployment compensation benefits, social security or other benefits
for Employees (other than routine payments to be made in the normal course of
business and consistent with past practice).
(k) Labor. No work stoppage or labor strike against the Company is
-----
pending, or to the knowledge of the Company, threatened. The Company is not
involved in or threatened with any labor dispute, grievance, or litigation
relating to labor, safety or discrimination matters involving any Employee,
including, without limitation, charges of unfair labor practices or
discrimination complaints, which, if adversely determined, would, individually
or in the aggregate, result in liability to the Company, Parent or Sub. The
Company has not engaged in any unfair labor practices which could, individually
or in the aggregate, directly or indirectly result in a liability to the
Company, Parent, Sub or any Affiliate. The Company is not presently, nor has it
in the past, been a party to, or bound by, any collective bargaining agreement
or union contract with respect to Employees and no collective bargaining
agreement is being negotiated by the Company.
Section 2.23 No Interference or Conflict. To the knowledge of the Company,
---------------------------
no shareholder, officer or employee of the Company is obligated under any
contract or agreement or subject to any judgment, decree or order of any court
or administrative agency, that would interfere with such person's efforts to
promote the interests of the Company or that would interfere with the Company's
business. Neither the execution nor delivery of this Agreement, nor the carrying
on of the Company's business as presently conducted nor any activity of such
officers or employees in connection with the carrying on of the Company's
business as presently conducted or proposed to be conducted in accordance with
the Business Plan, will, to the Company's knowledge, conflict with or result in
a breach of the terms, conditions or provisions of, or constitute a default
under, any contract or agreement under which any of such officers or employees
are currently bound.
Section 2.24 Insurance. Section 2.24 of the Disclosure Letter lists all
---------
insurance policies and fidelity bonds covering the assets, business, equipment,
properties, operations, employees, officers and directors of the Company. There
is no claim by the Company pending under any of such policies or bonds as to
which coverage has been questioned, denied or disputed by the underwriters of
such policies or bonds. All premiums due and payable under all
22
<PAGE>
such policies and bonds have been paid, and the Company and its Affiliates are
otherwise in compliance with the terms of such policies and bonds (or other
policies and bonds providing substantially similar insurance coverage). The
Company has no knowledge of any threatened termination of, or premium increase
with respect to, any of such policies.
Section 2.25 Compliance with Laws. The Company has complied with, is not in
--------------------
violation of, and has not received any notices of violation with respect to, any
foreign, federal, state or local statute, law or regulation.
Section 2.26 Complete Copies of Materials. The Company has delivered or
----------------------------
made available true and complete copies of each document (or summaries of same)
that has been reasonably requested by Parent or its counsel.
Section 2.27 Representations Complete. None of the representations or
------------------------
warranties made by the Company (as modified by the Disclosure Letter), nor any
statement made in any schedule or certificate furnished by the Company pursuant
to this Agreement, or furnished in or in connection with documents mailed or
delivered to the Company Shareholders for use in soliciting their consent to
this Agreement and the Merger contains or will contain at the Effective Time,
any untrue statement of a material fact, or omits or will omit at the Effective
Time to state any material fact necessary in order to make the statements
contained herein or therein, in the light of the circumstances under which made,
not misleading.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF PARENT AND SUB
Parent and Sub represent and warrant to the Company as follows:
Section 3.1 Organization, Standing and Power. Parent is a corporation duly
--------------------------------
organized, validly existing and in good standing under the laws of the State of
Delaware. Sub is a corporation duly organized, validly existing and in good
standing under the laws of the State of California. Each of Parent and Sub has
the corporate power to own its properties and to carry on its business as now
being conducted and is duly qualified to do business and is in good standing in
each jurisdiction in which the failure to be so qualified would have a material
adverse effect on the ability of Parent and Sub to consummate the transactions
contemplated hereby.
Section 3.2 Authority. Each of Parent and Sub has all requisite corporate
---------
power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been duly
authorized by all necessary corporate action on the part of Parent and Sub. This
Agreement has been duly executed and delivered by Parent and Sub and constitutes
the valid and binding obligations of Parent and Sub, enforceable in accordance
with its terms, except as such enforceability may be limited by principles of
public policy and subject to the laws of general application relating to
bankruptcy, insolvency and the relief of debtors and rules of law governing
specific performance, injunctive relief or other equitable remedies.
23
<PAGE>
Section 3.3 Capital Structure.
-----------------
(a) The authorized stock of Parent consists of 100,000,000 shares of
Common Stock, $0.001 par value, of which 15,622,252 shares were issued and
outstanding as of July 15, 2000, and 5,000,000 shares of undesignated Preferred
Stock, $0.001 par value. No shares of Preferred Stock are issued or outstanding.
Parent has also reserved (i) 1,437,500 shares of Common Stock for issuance to
employees and consultants pursuant to Parent's 1992 Stock Plan, (ii) 1,000,000
shares (subject to annual increases) of Common Stock for issuance to employees
and consultants pursuant to Parent's 1998 Stock Plan, and (iii) 250,000 shares
(subject to annual increases) of Common Stock for issuance under Parent's 1998
Employee Stock Purchase Plan.
(b) The shares of Parent Common Stock to be issued pursuant to the
Merger will be duly authorized, validly issued, fully paid and nonassessable
free of any liens or encumbrances and not subject to any preemptive rights or
rights of first refusal created by statute or the Certificate of Incorporation
or Bylaws of Parent or the Articles of Incorporation or Bylaws of Sub or any
agreement to which Parent or Sub is a party or is bound and will be issued in
compliance with federal and state securities laws.
Section 3.4 SEC Documents; Parent Financial Statements. Parent has
------------------------------------------
furnished the Company, and will furnish the Company Shareholders prior to the
Closing, with a true and complete copy of the following filings with the
Securities and Exchange Commission (the "SEC"): (i) its Annual Report to its
shareholders covering the fiscal year ended December 31, 1999, (ii) its Proxy
Statement to its shareholders for its 2000 annual meeting and (iii) its
quarterly reports on Form 10-Q for the quarters ended June 30, and September 30,
2000 (the "SEC Documents"). As of their respective filing dates, the SEC
Documents complied in all material respects with the requirements of the
Securities Act of 1933, as amended (the "Securities Act") and the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), as applicable and none of
the SEC Documents contained any untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to make the
statements made therein, in light of the circumstances in which they were made,
not misleading, except to the extent corrected by a subsequently filed document
with the SEC. The financial statements of Parent, including the notes thereto,
included in the SEC Documents (the "Parent Financial Statements") comply as to
form in all material respects with applicable accounting requirements and with
the published rules and regulations of the SEC with respect thereto, have been
prepared in accordance with generally accepted accounting principles
consistently applied (except as may be indicated in the notes thereto) and
present fairly the consolidated financial position of Parent at the dates
thereof and of its operations and cash flows for the periods then ended
(subject, in the case of unaudited statements, to normal audit adjustments).
Section 3.5 Brokers' and Finders' Fees. Parent has not incurred, nor will
--------------------------
it incur, directly or indirectly, any liability for brokerage or finders' fees
or agents' commissions or any similar charges in connection with this Agreement
or any transaction contemplated hereby.
Section 3.6 Consents. No consent, waiver, approval, order or authorization
--------
of, or registration, declaration or filing with, any Governmental Entity or any
third party, including a
24
<PAGE>
party to any agreement with Parent or Sub (so as not to trigger any Conflict),
is required by or with respect to Parent or Sub in connection with the execution
and delivery of this Agreement and any Related Agreements to which Parent or Sub
is a party or the consummation of the transactions contemplated hereby and
thereby, except for (i) such consents, waivers, approvals, orders,
authorizations, registrations, declarations and filings as may be required under
applicable securities laws thereby, (ii) the filing of the Merger Agreement with
the Secretary of State of the State of California and (iii) such consents,
waivers, approvals, orders or authorizations which if not obtained, or
registrations, declarations or filings which if not made, would not have a
material adverse effect on the business, assets (including intangible assets),
financial conditions or results of operations of Parent and Sub, taken as a
whole.
Section 3.7 Other Matters. Sub has been formed for the sole purpose of
-------------
effecting the Merger and, except as contemplated by this Agreement, Sub has not
conducted any business activities and does not have any material liabilities or
obligations.
ARTICLE IV.
CONDUCT PRIOR TO THE EFFECTIVE TIME
Section 4.1 Conduct of Business of the Company. During the period from the
----------------------------------
date of this Agreement and continuing until the earlier of the termination of
this Agreement or the Effective Time, the Company agrees (except to the extent
that Parent shall otherwise consent in writing), to carry on the Company's
business in the usual, regular and ordinary course in substantially the same
manner as heretofore conducted, to pay its debts and Taxes before they become
delinquent, to pay or perform other obligations when due, and, to the extent
consistent with such business, use all reasonable efforts consistent with past
practice and policies to preserve intact the Company's present business
organization, keep available the services of the Company's present officers and
key employees and preserve the Company's relationships with customers,
suppliers, distributors, licensors, licensees, and others having business
dealings with it, all with the goal of preserving unimpaired the Company's
goodwill and ongoing business at the Effective Time. The Company shall promptly
notify Parent of any event or occurrence or emergency not in the ordinary course
of business of the Company, and any material event involving the Company. Except
as expressly contemplated by this Agreement, the Company shall not, without the
prior written consent of Parent:
(a) Enter into any commitment or transaction not in the ordinary
course of business;
(b) Transfer to any person or entity any rights to the Company
Intellectual Property;
(c) Enter into or amend any agreements pursuant to which any other
party is granted marketing, distribution or similar rights of any type or scope
with respect to any products of the Company;
25
<PAGE>
(d) Amend or otherwise modify (or agree to do so), except in the
ordinary course of business, or violate the terms of, any of the agreements set
forth or described in the Disclosure Letter;
(e) Commence any litigation;
(f) Declare, set aside or pay any dividends on or make any other
distributions (whether in cash, stock or property) in respect of any of its
capital stock, or split, combine or reclassify any of its capital stock or issue
or authorize the issuance of any other securities in respect of, in lieu of or
in substitution for shares of capital stock of the Company, or repurchase,
redeem or otherwise acquire, directly or indirectly, any shares of its capital
stock (or options, warrants or other rights exercisable therefor);
(g) Issue, grant, deliver or sell or authorize or propose the
issuance, grant, delivery or sale of, or purchase or propose the purchase of,
any shares of its capital stock or securities convertible into, or
subscriptions, rights, warrants or options to acquire, or other agreements or
commitments of any character obligating it to issue any such shares or other
convertible securities other than conversion of outstanding convertible
securities;
(h) Cause or permit any amendments to its Articles of Incorporation
or Bylaws;
(i) Acquire or agree to acquire by merging or consolidating with, or
by purchasing any assets or equity securities of, or by any other manner, any
business or any corporation, partnership, association or other business
organization or division thereof, or otherwise acquire or agree to acquire any
assets which are material, individually or in the aggregate, to its business;
(j) Sell, lease, license or otherwise dispose of any of its
properties or assets, except in the ordinary course of business and consistent
with past practices;
(k) Incur any indebtedness for borrowed money or guarantee any such
indebtedness or issue or sell any debt securities or guarantee any debt
securities of others other than trade debt;
(l) Grant any loans to others or purchase debt securities of others
or amend the terms of any outstanding loan agreement, except in the ordinary
course of business and consistent with past practices;
(m) Grant any severance or termination pay (i) to any director or
officer or (ii) to any other employee except payments made pursuant to standard
written agreements outstanding on the date hereof;
(n) Adopt or amend any employee benefit plan, or enter into any
employment agreement, pay or agree to pay any special bonus or special
remuneration to any director or employee, or increase the salaries or wage rates
of its employees;
26
<PAGE>
(o) Revalue any of its assets, including without limitation writing
down the value of inventory or writing off notes or accounts receivable other
than in the ordinary course of business;
(p) Take any action which could jeopardize the tax-free
reorganization hereunder;
(q) Pay, discharge or satisfy, in an amount in excess of $5,000 (in
any one case) or $15,000 (in the aggregate), any claim, liability or obligation
(absolute, accrued, asserted or unasserted, contingent or otherwise), other than
the payment, discharge or satisfaction in the ordinary course of business of
liabilities reflected or reserved against in the Current Balance Sheet;
(r) Make or change any material election in respect of Taxes, adopt
or change any accounting method in respect of Taxes, enter into any closing
agreement, settle any claim or assessment in respect of Taxes, or consent to any
extension or waiver of the limitation period applicable to any claim or
assessment in respect of Taxes;
(s) Enter into any strategic alliance or joint marketing arrangement
or agreement; or
(t) Take, or agree in writing or otherwise to take, any of the
actions described in Sections 4.1(a) through (s) above, or any other action that
-------------- -
would prevent the Company from performing or cause the Company not to perform
its covenants hereunder.
Section 4.2 No Solicitation. Until the earlier of the Effective Time or the
---------------
date of termination of this Agreement pursuant to the provisions of Section 8.1
-----------
hereof, the Company will not (nor will the Company permit any of the Company's
officers, directors, agents, representatives or affiliates to), without the
express written consent of Parent, directly or indirectly, take any of the
following actions with any party other than Parent and its designees: (a)
solicit, conduct discussions with or engage in negotiations with any person,
relating to the possible acquisition of the Company (whether by way of merger,
purchase of capital stock, purchase of assets or otherwise) or any material
portion of its or their capital stock or assets, (b) provide information with
respect to it to any person, other than Parent and Parent's counsel, accountants
and representatives, relating to the possible acquisition of the Company
(whether by way of merger, purchase of capital stock, purchase of assets or
otherwise) or any material portion of its or their capital stock or assets, (c)
enter into an agreement with any person, other than Parent, providing for the
acquisition of the Company (whether by way of merger, purchase of capital stock,
purchase of assets or otherwise) or any material portion of its or their capital
stock or assets or (d) make or authorize any statement, recommendation or
solicitation in support of any possible acquisition of the Company or any of its
subsidiaries (whether by way of merger, purchase of capital stock, purchase of
assets or otherwise) or any material portion of its or their capital stock or
assets by any person, other than by Parent. In addition to the foregoing, if the
Company receives prior to the Effective Time or the termination of this
Agreement any written offer or proposal relating to any of the above, the
Company shall immediately notify Parent thereof, including information as to the
identity of the offeror or the party making any such offer
27
<PAGE>
or proposal and the specific terms of such offer or proposal, as the case may
be, and such other information related thereto as Parent may reasonably request.
ARTICLE V.
ADDITIONAL AGREEMENTS
Section 5.1 Sale of Shares. The parties hereto acknowledge and agree that
--------------
the shares of Parent Common Stock issuable to the Company Shareholders pursuant
to Section 1.6 hereof, shall constitute "restricted securities" within the
-----------
meaning of Rule 144 under the Securities Act. The certificates for the shares of
Parent Common Stock to be issued in the Merger shall bear appropriate legends to
identify such privately placed shares as being restricted under the Securities
Act, to comply with applicable state securities laws and, if applicable, to
notice the restrictions on transfer of such shares. It is acknowledged and
understood that Parent is relying upon certain written representations made by
the Company Shareholders in the Shareholder Certificates in substantially the
form attached hereto as Exhibit E.
---------
Section 5.2 Access to Information. The Company shall afford Parent and its
---------------------
accountants, counsel and other representatives reasonable access during normal
business hours during the period prior to the Effective Time to (a) all of the
Company's properties, books, contracts, commitments and records, and (b) all
other information concerning the business, properties and personnel (subject to
restrictions imposed by applicable law) of the Company as Parent may reasonably
request. The Company agrees to provide to Parent and its accountants, counsel
and other representatives copies of internal financial statements promptly upon
request. Parent shall provide the Company with copies of such publicly available
information about Parent as the Company may request and shall provide the
Company with reasonable access to its executive officers in this regard. No
information or knowledge obtained in any investigation pursuant to this Section
-------
5.2 shall affect or be deemed to modify any representation or warranty contained
---
herein or the conditions to the obligations of the parties to consummate the
Merger.
Section 5.3 Confidentiality.
---------------
(a) Each of the parties hereto hereby agrees that the information
obtained in any investigation pursuant to Section 5.2, or pursuant to the
-----------
negotiation and execution of this Agreement or the effectuation of the
transaction contemplated hereby, shall be treated by the party receiving it as
confidential ("Confidential Information"); provided, however, that the foregoing
-------- -------
shall not apply to information or knowledge which (a) a party can demonstrate
was already lawfully in its possession prior to the disclosure thereof by the
other party, (b) is generally available to the public and did not become so
available through any violation of law, (c) became available to the public
through no fault of such party, (d) is later lawfully acquired by such party
from other sources, (e) is required to be disclosed by order of court or
government agency without subpoena powers or (f) which is disclosed in the
course of any litigation between any of the parties hereto.
(b) If this Agreement is terminated, (i) any Confidential Information
of the
28
<PAGE>
other party obtained by a party shall not be used in competition with the other
party and (ii) each of the parties hereto shall, and shall cause its officers,
employees, representatives, advisors and agents to, destroy or deliver to the
other parties all Confidential Information of such parties.
Section 5.4 Expenses. Whether or not the Merger is consummated, all fees
--------
and expenses incurred in connection with the Merger, including, without
limitation, all legal, accounting, financial advisory, consulting and all other
fees and expenses of third parties ("Third Party Expenses") incurred by a party
in connection with the negotiation and effectuation of the terms and conditions
of this Agreement and the transactions contemplated hereby, shall be the
obligation of the respective party incurring such fees and expenses; provided,
--------
however, that the cost of any audit of the Company by Parent shall be borne
-------
exclusively by Parent. In the case of the Company, all Third Party Expenses
shall be either paid or accrued by the Company prior to the Effective Time,
subject to incidental fees and expenses of Company's counsel which are not
reasonably susceptible to accounting prior thereto.
Section 5.5 Public Disclosure. Unless otherwise required by law, prior to
-----------------
the Effective Time, no disclosure (whether or not in response to an inquiry) of
the subject matter of this Agreement shall be made by any party hereto unless
approved by Parent and the Company prior to release; provided, however, that
-------- -------
such approval shall not be unreasonably withheld, subject, in the case of
Parent, to Parent's obligation to comply with applicable securities laws and the
rules and regulations of the National Association of Securities Dealers, Inc.
Section 5.6 Consents. The Company shall use its best efforts to obtain the
--------
consents, waivers and approvals under any of the Contracts as may be required in
connection with the Merger (all of such consents, waivers and approvals are set
forth in Disclosure Letter) so as to preserve all rights of, and benefits to,
the Company thereunder.
Section 5.7 FIRPTA Compliance. On the Closing Date, the Company shall
-----------------
deliver to Parent a properly executed statement in a form reasonably acceptable
to Parent for purposes of satisfying Parent's obligations under Treasury
Regulation Section 1.1445-2(c)(3).
Section 5.8 Reasonable Efforts. Subject to the terms and conditions
------------------
provided in this Agreement, each of the parties hereto shall use commercially
reasonable efforts to take promptly, or cause to be taken, all actions, and to
do promptly, or cause to be done, all things necessary, proper or advisable
under applicable laws and regulations to consummate and make effective the
transactions contemplated hereby, to obtain all necessary waivers, consents and
approvals and to effect all necessary registrations and filings and to remove
any injunctions or other impediments or delays, legal or otherwise, in order to
consummate and make effective the transactions contemplated by this Agreement
for the purpose of securing to the parties hereto the benefits contemplated by
this Agreement; provided, however, that Parent shall not be required to agree to
-------- -------
any divestiture by Parent or the Company or any of Parent's subsidiaries or
affiliates of shares of capital stock or of any business, assets or property of
Parent or its subsidiaries or affiliates or of the Company, its affiliates, or
the imposition of any material limitation on the ability of any of them to
conduct their businesses or to own or exercise control of such assets,
properties and stock.
29
<PAGE>
Section 5.9 Notification of Certain Matters. The Company shall give prompt
-------------------------------
notice to Parent, and Parent shall give prompt notice to the Company, of (i) the
occurrence or non-occurrence of any event, the occurrence or non-occurrence of
which is likely to cause any representation or warranty of the Company and
Parent, respectively, contained in this Agreement to be untrue or inaccurate at
or prior to the Effective Time and (ii) any failure of the Company or Parent, as
the case may be, to comply with or satisfy any covenant, condition or agreement
to be complied with or satisfied by it hereunder; provided, however, that the
-------- -------
delivery of any notice pursuant to this Section 5.9 shall not limit or otherwise
-----------
affect any remedies available to the party receiving such notice.
Section 5.10 Affiliate Agreements. Section 5.10 of the Disclosure Letter
--------------------
sets forth those persons who are or may be "affiliates" of the Company within
the meaning of Rule 145 (each such person an "Affiliate") promulgated under the
Securities Act ("Rule 145"). The Company shall provide Parent such information
and documents as Parent shall reasonably request for purposes of reviewing such
list. The Company shall deliver or cause to be delivered to Parent, concurrently
with the execution of this Agreement (and in any case prior to the Closing Date)
from each of the Affiliates of the Company, an executed Affiliate Agreement in
the form attached hereto as Exhibit A. Parent and Sub shall be entitled to place
---------
appropriate legends on the certificates evidencing any Parent Common Stock to be
received by such Affiliates pursuant to the terms of this Agreement, and to
issue appropriate stop transfer instructions to the transfer agent for Parent
Common Stock, consistent with the terms of such Affiliate Agreements.
Section 5.11 Additional Documents and Further Assurances. Each party
-------------------------------------------
hereto, at the request of another party hereto, shall execute and deliver such
other instruments and do and perform such other acts and things as may be
necessary or desirable for effecting completely the consummation of the
transactions contemplated hereby.
Section 5.12 Tax Free Reorganization. The parties intend to adopt this
-----------------------
Agreement and the Merger as a tax-free plan of-reorganization under the Code.
The parties shall not take a position on any tax return inconsistent with the
intentions of the parties set forth in this Section 5.12.
------------
Section 5.13 Shareholder Approval. As promptly as practicable after the
--------------------
execution of this Agreement, the Company shall submit this Agreement and the
transactions contemplated hereby to the Company Shareholders for approval and
adoption as provided by the California Law and its Articles of Incorporation and
Bylaws and such other documents necessary in order to satisfy the requirements
of Section 4(2) of the Securities Act and Regulation D thereunder in connection
with the issuance and sale of Parent Common Stock in the Merger. The Company
shall use its best efforts to solicit and obtain the consent of its shareholders
sufficient to approve the Merger and this Agreement and to enable the Closing to
occur as promptly as practicable. The materials submitted to the Company
Shareholders shall be subject to review and approval by Parent and include
information regarding the Company, the terms of the Merger and this Agreement
and the unanimous recommendation of the Board of Directors of the Company
regarding the Merger and this Agreement.
30
<PAGE>
Section 5.14 Proprietary Information and Confidentiality Agreements. Prior
------------------------------------------------------
to the Effective Time, each current employee and consultant of the Company to
remain employed by the Surviving Corporation or to be employed by Parent will
execute a proprietary information and confidentiality agreement in form
reasonably acceptable to Parent.
5.15 Taxes. The Company shall withhold and pay over to the appropriate tax
-----
authorities all applicable federal and state income and employment taxes
(including but not limited to FICA, FUTA, Medicare and state disability
insurance) required to have been withheld by the Company.
ARTICLE VI.
CONDITIONS TO THE MERGER
Section 6.1 Conditions to Obligations of Each Party to Effect the Merger.
------------------------------------------------------------
The respective obligations of each party to this Agreement to effect the Merger
shall be subject to the satisfaction at or prior to the Effective Time of the
following conditions:
(a) No Injunctions or Restraints; Illegality. No temporary restraining
----------------------------------------
order, preliminary or permanent injunction or other order issued by any court of
competent jurisdiction or other legal restraint or prohibition preventing the
consummation of the Merger shall be in effect, nor shall any proceeding brought
by an administrative agency or commission or other governmental authority or
instrumentality, domestic or foreign, seeking any of the foregoing be pending;
nor shall there be any action taken, or any statute, rule, regulation or order
enacted, entered, enforced or deemed applicable to the Merger, which makes the
consummation of the Merger illegal.
(b) Litigation. There shall be no bona fide action, suit, claim or
----------
proceeding of any nature pending, or overtly threatened, against Parent, Sub or
the Company, their respective properties or any of their officers or directors,
arising out of, or in any way connected with, the Merger or the other
transactions contemplated by the terms of this Agreement.
(c) Shareholder Approval. This Agreement and the Merger shall be
--------------------
approved and adopted by the requisite vote of the Company Shareholders under
applicable law and the Company's Articles of Incorporation.
Section 6.2 Additional Conditions to Obligations of Company. The
-----------------------------------------------
obligations of the Company to consummate and effect this Agreement and the
transactions contemplated hereby shall be subject to the satisfaction at or
prior to the Effective Time of each of the following conditions, any of which
may be waived, in writing, exclusively by the Company:
(a) Representations, Warranties and Covenants. The representations and
-----------------------------------------
warranties of Parent and Sub in this Agreement shall be true and correct in all
material respects on and as of the Effective Time as though such representations
and warranties were made on and as of such time and each of Parent and Sub shall
have performed and complied in all material respects with all covenants and
obligations of this Agreement required to be performed and complied with by it
as of the Effective Time.
31
<PAGE>
(b) Claims. There shall not have occurred any claims asserted in
------
litigation which may materially and adversely affect the consummation of the
transactions contemplated hereby or the business, assets (including intangible
assets), financial condition or results of operations of Parent and its
subsidiaries, taken as a whole.
(c) Legal Opinion. The Company shall have received a legal opinion
-------------
from Akin, Gump, Strauss, Hauer & Feld, L.L.P., legal counsel to Parent, in
substantially the form of Exhibit B-1 hereto.
-----------
(d) Certificate of Parent. The Company shall have been provided with a
---------------------
certificate executed on behalf of Parent by an officer of Parent to the effect
that, as of the Effective Time:
(i) all representations and warranties made by Parent and Sub in
this Agreement are true and correct in all material respects;
(ii) all covenants and obligations of this Agreement to be
performed by Parent on or before such date have been so performed in all
material respects.
(iii) the conditions set forth in Section 6.2(b) have been
--------------
satisfied.
(e) Promissory Notes. Parent shall have paid the amounts
----------------
set forth in Exhibit H to the persons set forth on Exhibit H as repayment for
--------- ---------
all of the outstanding principal and accrued but unpaid interest due pursuant to
those certain Convertible Subordinated Promissory Notes (the "Notes") issued by
the Company to such persons; Parent shall have received a payoff letter from
each of the persons listed on Exhibit H; and the Notes shall have been
---------
cancelled.
Section 6.3 Additional Conditions to the Obligations of Parent and Sub. The
----------------------------------------------------------
obligations of Parent and Sub to consummate and effect this Agreement and the
transactions contemplated hereby shall be subject to the satisfaction at or
prior to the Effective Time of each of the following conditions, any of which
may be waived, in writing, exclusively by Parent:
(a) Representations, Warranties and Covenants. The representations and
-----------------------------------------
warranties of the Company in this Agreement shall be true and correct in all
material respects on and as of the Effective Time as though such representations
and warranties were made on and as of the Effective Time and the Company shall
have performed and complied in all material respects with all covenants and
obligations of this Agreement required to be performed and complied with as of
the Effective Time.
(b) Claims. There shall not have occurred any third-party claims
------
(whether or not asserted in litigation) which may materially and adversely
affect the consummation of the transactions contemplated hereby or may have a
Material Adverse Effect.
(c) Third Party Consents. Any and all consents, waivers, and approvals
--------------------
listed in the Disclosure Letter shall have been obtained.
32
<PAGE>
(d) Legal Opinion. Parent shall have received a legal opinion from
-------------
Pillsbury, Madison & Sutro, legal counsel to the Company, in substantially the
form of Exhibit B-2 hereto.
-----------
(e) Offer Letters and Non-competition Agreements. The persons listed
--------------------------------------------
on Exhibit C-1 shall each have executed and delivered to Parent an Offer Letter
-----------
in the form of Exhibit C-2 and a Non-competition Agreement in substantially the
-----------
form attached hereto as Exhibit D, and such Non-competition Agreements shall be
---------
in full force and effect.
(f) Shareholder Certificate. Each Company Shareholder shall have
-----------------------
executed and delivered to Parent a Shareholder Certificate in substantially the
form attached hereto as Exhibit E.
---------
(g) No Material Adverse Changes. There shall not have occurred any
---------------------------
material adverse change in the business, assets (including intangible assets),
results of operations, liabilities (contingent or accrued) or financial
condition of the Company since September 30, 2000.
(h) Shareholder Approval. Company Shareholders holding at least 95% of
--------------------
Company Capital Stock shall have approved this Agreement, the Merger and the
transactions contemplated thereby, and holders of not more than 5% of Company
Capital Stock shall continue to have a right to exercise appraisal, dissenters
or similar rights under applicable law with respect to their Company Capital
Stock by virtue of the Merger.
(i) Affiliate Agreements. Each of the persons listed in Section 5.10
--------------------
of the Disclosure Letter shall have executed an Affiliate Agreement in
substantially the form attached as Exhibit A.
---------
(j) Certificate of the Company. Parent shall have been provided with a
--------------------------
certificate executed on behalf of the Company by its Chief Executive Officer to
the effect that, as of the Effective Time:
(i) all representations and warranties made by the Company in
this Agreement are true and correct in all material respects; and
(ii) all covenants and obligations of this Agreement to be
performed by the Company on or before such date have been so performed in all
material respects.
(iii) the conditions set forth in Section 6.3(b), (c), (g) and (h)
------------- --- --- ---
have been satisfied.
(k) Director Resignations. Each of the directors of the Company shall
---------------------
have delivered to Parent a letter of resignation from the Board of Directors of
the Company.
(l) Promissory Notes. Parent shall have paid the amounts set forth in
----------------
Exhibit H to the persons set forth on Exhibit H as repayment for all of the
--------- ---------
outstanding principal and accrued but unpaid interest due pursuant to those
certain Convertible Subordinated Promissory
<PAGE>
Notes (the "Notes") issued by the Company to such persons; Parent shall have
received a payoff letter from each of the persons listed on Exhibit H; and the
---------
Notes shall have been cancelled.
ARTICLE VII.
SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ESCROW
Section 7.1 Survival of Representations and Warranties. All of the
------------------------------------------
Company's representations and warranties in this Agreement or in any instrument
delivered pursuant to this Agreement shall survive the Merger and continue until
the earlier of the date which is the date of the auditor's report for the first
audit of Parent's financial statements after the Closing Date or the date which
is one year following the Closing Date (the "Expiration Date"); provided,
--------
however, that the representations contained in Section 2.10 shall survive until
------- ------------
all applicable statutes of limitations, including waivers and extensions, have
expired with respect to the matters addressed herein. All of Parent's and Sub's
representations and warranties contained herein or in any instrument delivered
pursuant to this Agreement shall terminate at the Expiration Date.
Section 7.2 Escrow Arrangements.
-------------------
(a) Escrow Fund. As security for the indemnity provided for in Section
----------- -------
7.2 hereof and by virtue of this Agreement and the approval of this Agreement
---
and the Merger by the Company's Board of Directors and the Company Shareholders,
the Company Shareholders will be deemed to have received and deposited with the
Escrow Agent (as defined below) the Escrow Amount (plus any additional shares as
may be issued upon any stock split, stock dividend or recapitalization effected
by Parent after the Effective Time) without any act of any Company Shareholder.
As soon as practicable after the Effective Time, the Escrow Amount, without any
act of any Company Shareholder, will be deposited with U.S. Bank Trust (or other
institution acceptable to Parent and the Company Shareholders) as Escrow Agent
(the "Escrow Agent"), such deposit to constitute an escrow fund (the "Escrow
Fund") to be governed by the terms set forth herein. The Escrow Agent may
execute this Agreement following the date hereof and prior to the Effective
Time, and such later execution, if so executed after the date hereof, shall not
affect the binding nature of this Agreement as of the date hereof between the
other signatories hereto. The portion of the Escrow Amount contributed on behalf
of each Company Shareholder shall be in proportion to the aggregate Parent
Common Stock which such holder would otherwise be entitled under Section 1.6(a).
--------------
By virtue of the approval of this Agreement and the Merger by the Company Board
of Directors and the Company Shareholders, the Company Shareholders jointly
agree to indemnify and hold Parent and its officers, directors and affiliates
(the "Indemnified Parties") harmless against all claims, losses, liabilities,
damages, deficiencies, costs and expenses, including reasonable attorneys' fees
and expenses of investigation (hereinafter individually a "Loss" and
collectively "Losses") incurred by Parent, its officers, directors, or
affiliates (including the Surviving Corporation) directly or indirectly as a
result of (i) any inaccuracy or breach of a representation or warranty of the
Company contained in this Agreement, (ii) any failure by the Company to perform
or comply with any covenant contained in this Agreement, or (iii) any violation
of California securities laws with respect to the
34
<PAGE>
Company's employee stock or stock option plan; provided, however, that, except
-------- -------
as set forth in Section 7.4, the aggregate amount for which the Company
-----------
Shareholders are required to indemnify the Indemnified Parties shall not exceed
the amount deposited in the Escrow Fund. The Escrow Fund shall be available to
compensate Parent and its affiliates for any such Losses. The Company
Shareholders shall not have any right of contribution from the Company with
respect to any Loss claimed by Parent after the Effective Time. Nothing herein
shall limit the liability of the Company for any breach of any representation,
warranty or covenant if the Merger does not close for reasons other than
Parent's breach of its obligations hereunder. Parent may not receive any shares
from the Escrow Fund unless and until an Officer's Certificate (as defined in
paragraph (d) below) identifying Losses has been delivered to the Escrow Agent
as provided in paragraph (d) below.
(b) Escrow Period; Distribution upon Termination of Escrow Periods.
--------------------------------------------------------------
Subject to the following requirements, the Escrow Fund shall be in existence
immediately following the Effective Time and shall terminate on the Expiration
Date (the "Escrow Period"), at which time the Escrow Agent shall distribute the
Escrow Fund to the Company Shareholders; provided, however, that the Escrow
-------- -------
Period shall not terminate with respect to, and the Escrow Agent shall retain in
the Escrow Fund, any amount which, in reasonable judgment of Parent, subject to
the objection of the Shareholder Representative (as defined in Section 7.3
-----------
below) and the subsequent arbitration of the matter in the manner provided in
Section 7.2(f) hereof, is necessary to satisfy any unsatisfied claims specified
--------------
in any Officer's Certificate delivered to the Escrow Agent and the Shareholder
Representative pursuant to Sections 7.2(d) and (e) prior to the Expiration Date
--------------- ---
with respect to facts and circumstances existing prior to the Expiration Date.
As soon as all such claims have been resolved, the Escrow Agent shall deliver to
the Company Shareholders the remaining portion of the Escrow Fund not required
to satisfy such claims. Deliveries of Escrow Amounts to the Company Shareholders
pursuant to this Section 7.2(b) shall be made in proportion to their respective
--------------
original contributions to the Escrow Fund.
(c) Protection of Escrow Fund.
-------------------------
(i) The Escrow Agent shall hold and safeguard the Escrow Fund
during the Escrow Period, shall treat such Escrow Fund as a trust fund in
accordance with the terms of this Agreement and not as the property of Parent
and shall hold and dispose of the Escrow Fund only in accordance with the terms
hereof.
(ii) Any shares of Parent Common Stock or other equity securities
issued or distributed by Parent (including shares issued upon a stock split)
("New Shares") in respect of Parent Common Stock in the Escrow Fund which have
not been released from the Escrow Fund shall be added to the Escrow Fund and
become a part thereof. New Shares issued in respect of shares of Parent Common
Stock which have been released from the Escrow Fund shall not be added to the
Escrow Fund but shall be distributed to the record holders thereof. Cash
dividends on Parent Common Stock shall not be added to the Escrow Fund but shall
be distributed to the Company Shareholders pro rata according to their
respective interests therein.
(iii) Each Company Shareholder shall have voting rights with
respect to the
35
<PAGE>
shares of Parent Common Stock contributed to the Escrow Fund by such Company
Shareholder (and on any voting securities added to the Escrow Fund in respect of
such shares of Parent Common Stock).
(d) Claims Upon Escrow Fund.
-----------------------
(i) Upon receipt by the Escrow Agent at any time on or before the
Expiration Date of a certificate signed by any officer of Parent (an "Officer's
Certificate"): (A) stating that Parent has paid or properly accrued Losses or,
with respect to third-party claims of which Parent, the Company or the Surviving
Corporation has received notice of, that Parent reasonably anticipates that it
will have to pay or accrue Losses, and (B) specifying in reasonable detail the
individual items of Losses included in the amount so stated, the date each such
item was paid or properly accrued, or the basis for such anticipated liability,
and the nature of the misrepresentation, breach of warranty or covenant to which
such item is related, the Escrow Agent shall, subject to the provisions of
Section 7.2(e) and 7.2(f) hereof, deliver to Parent out of the Escrow Fund, as
-------------- ------
promptly as practicable, shares of Parent Common Stock held in the Escrow Fund
with a value equal to such Losses.
(ii) For the purposes of determining the number of shares of
Parent Common Stock to be delivered to Parent out of the Escrow Fund as
indemnity pursuant to Section 7.2(d)(i) hereof, the shares of Parent Common
-----------------
Stock shall be valued at the closing price of the Parent Common Stock on the
Nasdaq Stock Market on the Closing Date.
(e) Objections to Claims. At the time of delivery of any Officer's
--------------------
Certificate to the Escrow Agent, a duplicate copy of such certificate shall be
delivered to the Shareholder Representative, and for a period of thirty (30)
days after such delivery, the Escrow Agent shall make no delivery to Parent of
any Escrow Amounts pursuant to Section 7.2(d) hereof unless the Escrow Agent
--------------
shall have received written authorization from the Shareholder Representative to
make such delivery. After the expiration of such thirty (30) day period, the
Escrow Agent shall make delivery of shares of Parent Common Stock from the
Escrow Fund in accordance with Section 7.2(d) hereof; provided, however, that no
-------------- -------- -------
such payment or delivery may be made if the Shareholder Representative shall
object in a written statement to the claim made in the Officer's Certificate,
and such statement shall have been delivered to the Escrow Agent prior to the
expiration of such thirty (30) day period.
(f) Resolution of Conflicts; Arbitration.
------------------------------------
(i) In case the Shareholder Representative shall object in writing
to any claim or claims made in any Officer's Certificate, the Shareholder
Representative and Parent shall attempt in good faith to agree upon the rights
of the respective parties with respect to each of such claims. If the
Shareholder Representative and Parent should so agree, a memorandum setting
forth such agreement shall be prepared and signed by both parties and shall be
furnished to the Escrow Agent. The Escrow Agent shall be entitled to rely on any
such memorandum and distribute shares of Parent Common Stock from the Escrow
Fund in accordance with the terms thereof.
36
<PAGE>
(ii) If no such agreement can be reached after good faith
negotiation, either Parent or the Shareholder Representative may after ten (10)
business days demand arbitration of the matter unless the amount of the damage
or Loss is at issue in pending litigation with a third party, in which event
arbitration shall not be commenced until such amount is ascertained or both
parties agree to arbitration; and in either such event the matter shall be
settled by arbitration conducted by one arbitrator mutually agreeable to Parent
and the Shareholder Representative. In the event that within ten (10) calendar
days after submission of any dispute to arbitration, Parent and the Shareholder
Representative cannot mutually agree on one arbitrator, Parent and the
Shareholder Representative shall within five (5) additional calendar days each
select one arbitrator, and the two arbitrators so selected shall select a third
arbitrator. The arbitrator or arbitrators, as the case may be, shall set a
limited time period and establish procedures designed to reduce the cost and
time for discovery while allowing the parties an opportunity, adequate in the
sole judgement of the arbitrator or majority of the three arbitrators, as the
case may be, to discover relevant information from the opposing parties about
the subject matter of the dispute. The arbitrator or a majority of the three
arbitrators, as the case may be, shall rule upon motions to compel or limit
discovery and shall have the authority to impose sanctions, including attorneys'
fees and costs, to the extent as a competent court of law or equity, should the
arbitrators or a majority of the three arbitrators, as the case may be,
determine that discovery was sought without substantial justification or that
discovery was refused or objected to without substantial justification. The
decision of the arbitrator or a majority of the three arbitrators, as the case
may be, as to the validity and amount of any claim in such Officer's Certificate
shall be binding and conclusive upon the parties to this Agreement. Such
decision shall be written and shall be supported by written findings of fact and
conclusions which shall set forth the award, judgment, decree or order awarded
by the arbitrator(s), and shall in any event be rendered within fifty (50)
calendar days after the appointment by the sole arbitrator or the arbitration
panel, as the case may be.
(iii) Judgment upon any award rendered by the arbitrator(s) may
be entered in any court having jurisdiction. Any such arbitration shall be held
in Palo Alto, California, under the rules then in effect of the American
Arbitration Association. The arbitrator(s) shall determine how all expenses
relating to the arbitration shall be paid, including without limitation, the
respective expenses of each party, the fees of each arbitrator and the
administrative fee of the American Arbitration Association.
(g) Third-Party Claims. In the event Parent becomes aware of a third-
------------------
party claim which Parent believes may result in a demand against the Escrow
Fund, Parent shall notify the Shareholder Representative of such claim, and the
Company Shareholders shall be entitled, at their expense, to participate in any
defense of such claim. Parent shall have the right in its sole discretion to
settle any such claim; provided, however, that except with the consent of the
-------- -------
Shareholder Representative, no settlement of any such claim with third-party
claimants shall be determinative of the amount of any claim against the Escrow
Fund. In the event that the Shareholder Representative has consented to any such
settlement, the Company Shareholders shall have no power or authority to object
under any provision of this Article VII to the amount of any claim by Parent
-----------
against the Escrow Fund with respect to such settlement.
37
<PAGE>
(h) Escrow Agent's Duties.
---------------------
(i) The Escrow Agent shall be obligated only for the performance
of such duties as are specifically set forth herein, and as set forth in any
additional written escrow instructions which the Escrow Agent may receive after
the date of this Agreement which are signed by an officer of Parent and the
Shareholder Representative, and may rely and shall be protected in relying or
refraining from acting on any instrument reasonably believed to be genuine and
to have been signed or presented by the proper party or parties. The Escrow
Agent shall not be liable for any act done or omitted hereunder as Escrow Agent
while acting in good faith and in the exercise of reasonable judgment, and any
act done or omitted pursuant to the advice of counsel shall be conclusive
evidence of such good faith.
(ii) The Escrow Agent is hereby expressly authorized to disregard
any and all warnings given by any of the parties hereto or by any other person,
excepting only orders or process of courts of law, and is hereby expressly
authorized to comply with and obey orders, judgments or decrees of any court. In
case the Escrow Agent obeys or complies with any such order, judgment or decree
of any court, the Escrow Agent shall not be liable to any of the parties hereto
or to any other person by reason of such compliance, notwithstanding any such
order, judgment or decree being subsequently reversed, modified, annulled, set
aside, vacated or found to have been entered without jurisdiction.
(iii) The Escrow Agent shall not be liable in any respect on
account of the identity, authority or rights of the parties executing or
delivering or purporting to execute or deliver this Agreement or any documents
or papers deposited or called for hereunder.
(iv) The Escrow Agent shall not be liable for the expiration of
any rights under any statute of limitations with respect to this Agreement or
any documents deposited with the Escrow Agent.
(v) In performing any duties under the Agreement, the Escrow
Agent shall not be liable to any party for damages, losses, or expenses, except
for negligence or willful misconduct on the part of the Escrow Agent. The Escrow
Agent shall not incur any such liability for (A) any act or failure to act made
or omitted in good faith, or (B) any action taken or omitted in reliance upon
any instrument, including any written statement of affidavit provided for in
this Agreement that the Escrow Agent shall in good faith believe to be genuine,
nor will the Escrow Agent be liable or responsible for forgeries, fraud,
impersonations, or determining the scope of any representative authority. In
addition, the Escrow Agent may consult with the legal counsel in connection with
Escrow Agent's duties under this Agreement and shall be fully protected in any
act taken, suffered, or permitted by him/her in good faith in accordance with
the advice of counsel. The Escrow Agent is not responsible for determining and
verifying the authority of any person acting or purporting to act on behalf of
any party to this Agreement.
(vi) If any controversy arises between the parties to this
Agreement, or with any other party, concerning the subject matter of this
Agreement, its terms or conditions, the Escrow Agent will not be required to
determine the controversy or to take any action regarding it. The Escrow Agent
may hold all documents and shares of Parent Common Stock and may
38
<PAGE>
wait for settlement of any such controversy by final appropriate legal
proceedings or other means as, in the Escrow Agent's good faith discretion, the
Escrow Agent may be required, despite what may be set forth elsewhere in this
Agreement. In such event, the Escrow Agent will not be liable for damage.
Furthermore, the Escrow Agent may at its option, file an action of interpleader
requiring the parties to answer and litigate any claims and rights among
themselves. The Escrow Agent is authorized to deposit with the clerk of the
court all documents and shares of Parent Common Stock held in escrow, except all
cost, expenses, charges and reasonable attorney fees incurred by the Escrow
Agent due to the interpleader action and which the parties jointly and severally
agree to pay. Upon initiating such action, the Escrow Agent shall be fully
released and discharged of and from all obligations and liability imposed by the
terms of this Agreement.
(vii) The parties and their respective successors and assigns agree
jointly and severally to indemnify and hold Escrow Agent harmless against any
and all losses, claims, damages, liabilities, and expenses, including reasonable
costs of investigation, counsel fees, including allocated costs of in-house
counsel and disbursements that may be imposed on Escrow Agent or incurred by
Escrow Agent in connection with the performance of his or her duties under this
Agreement, including, but not limited to, any litigation arising from this
Agreement or involving its subject matter other than arising out of its
negligence or willful misconduct.
(viii) The Escrow Agent may resign at any time upon giving at least
thirty (30) days written notice to the parties; provided, however, that no such
-------- -------
resignation shall become effective until the appointment of a successor escrow
agent by the parties using their best efforts to mutually agree on a successor
escrow agent within thirty (30) days after receiving such notice. If the parties
fail to agree upon a successor escrow agent within such time, the Escrow Agent
shall have the right to appoint a successor escrow agent authorized to do
business in the state of California. The successor escrow agent shall execute
and deliver an instrument accepting such appointment and it shall, without
further acts, be vested with ail the estates, properties, rights, powers, and
duties of the predecessor escrow agent as if originally named as escrow agent.
Upon appointment of a successor escrow agent, the Escrow Agent shall be
discharged from any further duties and liability under this Agreement.
(i) Fees. All fees of the Escrow Agent for performance of its
----
duties hereunder shall be paid by Parent in accordance with the standard fee
schedule of the Escrow Agent, attached hereto as Exhibit F. It is understood
---------
that the fees and usual charges agreed upon for services of the Escrow Agent
shall be considered compensation for ordinary services as contemplated by this
Agreement. In the event that the conditions of this Agreement are not promptly
fulfilled, or if the Escrow Agent renders any service not provided for in this
Agreement, or if the parties request a substantial modification of its terms, or
if any controversy arises, or if the Escrow Agent is made a party to, or
intervenes in, any litigation pertaining to the Escrow Fund or its subject
matter, the Escrow Agent shall be reasonably compensated for such extraordinary
services and reimbursed for all costs, attorney's fees, including allocated
costs of in-house counsel, and expenses occasioned by such default, delay,
controversy or litigation.
(j) Consequential Damages. In no event shall the Escrow Agent be
---------------------
liable for special, indirect or consequential loss or damage of any kind
whatsoever (including, but not
39
<PAGE>
limited to, lost profits), even if the Escrow Agent has been advised of the
likelihood of such loss or damage and regardless of the form of action.
(k) Successor Escrow Agents. Any corporation into which the Escrow
-----------------------
Agent in its individual capacity may be merged or converted or with which it may
be consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Escrow Agent in its individual capacity shall be a
party, or any corporation to which substantially all the corporate trust
business of the Escrow Agent in its individual capacity may be transferred,
shall be the Escrow Agent under this Agreement without further act.
Section 7.3 Shareholder Representative.
--------------------------
(a) By virtue of approval of this Agreement and the Merger by the
Company's Board of Directors and the Company Shareholders, and effective upon
such approval, and without further act of any Company Shareholder, Azeem Butt
shall be appointed as agent and attorney-in-fact (the "Shareholder
Representative") for each Company Shareholder, for and on behalf of the Company
Shareholders, to give and receive notices and communications, to authorize
delivery to Parent of shares of Parent Common Stock from the Escrow Fund in
satisfaction of claims by Parent, to object to such deliveries, to agree to,
negotiate, enter into settlements and compromises of, and demand arbitration and
comply with orders of courts and awards of arbitrators with respect to such
claims, and to take all actions necessary or appropriate in the judgment of the
Shareholder Representative for the accomplishment of the foregoing. The
Shareholder Representative shall have the right to resign and such agency may be
changed by the Company Shareholders from time to time upon not less than thirty
(30) days prior written notice to Parent; provided, however, that the
-------- -------
Shareholder Representative may not be removed unless holders of a majority in
interest in the Escrow Fund agree to such removal and to the identity of the
substituted agent. Any vacancy in the position of Shareholder Representative may
be filled by approval of the holders of a majority in interest in the Escrow
Fund. No bond shall be required of the Shareholder Representative, and the
Shareholder Representative shall not receive compensation for his or her
services from the Parent or the Company. Notices or communications to or from
the Shareholder Representative shall constitute notice to or from each of the
Company Shareholder.
(b) The Shareholder Representative shall not be liable for any act
done or omitted hereunder as Shareholder Representative while acting in good
faith and in the exercise of reasonable judgment. The Company Shareholders on
whose behalf the Escrow Amount was contributed to the Escrow Fund shall
severally indemnify the Shareholder Representative and hold the Shareholder
Representative harmless against any loss, liability or expense incurred without
negligence or bad faith on the part of the Shareholder Representative and
arising out of or in connection with the acceptance or administration of the
Shareholder Representative's duties hereunder, including the reasonable fees and
expenses of any legal counsel retained by the Shareholder Representative.
(c) A decision, act, consent or instruction of the Shareholder
Representative shall constitute a decision of all Company Shareholders for whom
a portion of the Escrow
40
<PAGE>
Amount otherwise issuable to them is deposited in the Escrow Fund and shall be
final, binding and conclusive upon each of such Company Shareholders, and the
Escrow Agent and Parent may rely upon any such decision, act, consent or
instruction of the Shareholder Representative as being the decision, act,
consent or instruction of each and every such Company Shareholder. The Escrow
Agent and Parent are hereby relieved from any liability to any person for any
acts done by them in accordance with such decision, act, consent or instruction
of the Shareholder Representative.
Section 7.4 Exclusive Remedy. The indemnity set forth in this Article
---------------- -------
VII and the Escrow Fund provided for herein shall apply only to breaches by the
---
Company of any representation, warranty, covenant or agreement of the Company
contained herein, by reason of any misrepresentation by the Company made in or
pursuant to Article II of this Agreement, and, except as provided below, resort
----------
to the Escrow Fund shall be the exclusive right and remedy of Parent for such
breaches, or for breaches of any Shareholder Certificate or otherwise under or
in connection with this Agreement, once the Closing occurs. Notwithstanding the
foregoing, the existence of this Article VII and of the rights and restrictions
-----------
set forth herein do not limit (i) any remedy with respect to any of the
representations contained in Section 2.10 or any claim arising out of the
--------------------------------------------
Company's failure to comply with Section 5.15, or (ii) any remedies of Parent
---------------------------------------------
with respect to any knowing and intentional or fraudulent actual breaches of the
representations and warranties or covenants of the Company contained in any
Article of this Agreement or of any Company Shareholder contained in a
Shareholder Certificate.
ARTICLE VIII.
TERMINATION, AMENDMENT AND WAIVER
Section 8.1 Termination. Except as provided in Section 8.2 below, this
----------- -----------
Agreement may be terminated and the Merger abandoned at any time prior to the
Effective Time:
(a) by mutual consent of the Company and Parent;
(b) by Parent or the Company if: (i) the Effective Time has not
occurred by December 31, 2000; (ii) there shall be a final nonappealable order
of a federal or state court in effect preventing consummation of the Merger; or
(iii) there shall be any statute, rule, regulation or order enacted, promulgated
or issued or deemed applicable to the Merger by any Governmental Entity that
would make consummation of the Merger illegal;
(c) by Parent if there shall be any action taken, or any statute,
rule, regulation or order enacted, promulgated or issued or deemed applicable to
the Merger by any Governmental Entity, which would: (i) prohibit Parent's or
Sub's ownership or operation of any portion of the business of the Company or
(ii) compel Parent or the Company to dispose of or hold separate all or a
portion of the business or assets of the Company or Parent as a result of the
Merger;
(d) by Parent if it is not in material breach of its obligations
under this
41
<PAGE>
Agreement and there has been a material breach of any representation, warranty,
covenant or agreement contained in this Agreement on the part of the Company and
such breach has not been cured within ten (10) calendar days after written
notice to the Company; provided, however, that, no cure period shall be required
-------- -------
for a breach which by its nature cannot be cured;
(e) by the Company if it is not in material breach of its obligations
under this Agreement and there has been a material breach of any representation,
warranty, covenant or agreement contained in this Agreement on the part of
Parent or Sub and such breach has not been cured within ten (10) calendar days
after written notice to Parent; provided, however, that, no cure period shall be
-------- -------
required for a breach which by its nature cannot be cured; or
(f) by Parent or Sub if an event having a Material Adverse Effect on
the Company shall have occurred after the date of this Agreement.
Where action is taken to terminate this Agreement pursuant to this Section
-------
8.1, it shall be sufficient for such action to be authorized by the Board of
---
Directors (as applicable) of the party taking such action.
Section 8.2 Effect of Termination. In the event of termination of this
---------------------
Agreement as provided in Section 8.1, this Agreement shall forthwith become void
-----------
and there shall be no liability or obligation hereunder on account of such
termination on the part of Parent, Sub, the Company, or their respective
officers, directors or shareholders; provided, however, that each party shall
-------- -------
remain liable for any breaches of this Agreement prior to its termination;
provided, further, that the provisions of Sections 5.3, 5.4, 5.5 and this
-------- ------- ------------ --- ---
Section 8.2, and Article IX of this Agreement shall remain in full force and
----------- ----------
effect and survive any termination of this Agreement.
Section 8.3 Amendment. This Agreement may be amended by the parties
---------
hereto at any time by execution of an instrument in writing signed on behalf of
each of the parties hereto.
Section 8.4 Extension; Waiver. At any time prior to the Effective Time,
-----------------
Parent and Sub, on the one hand, and the Company, on the other, may, to the
extent legally allowed, (i) extend the time for the performance of any of the
obligations of the other party hereto, (ii) waive any inaccuracies in the
representations and warranties made to such party contained herein or in any
document delivered pursuant hereto, and (iii) waive compliance with any of the
agreements or conditions for the benefit of such party contained herein. Any
agreement on the part of a party hereto to any such extension or waiver shall be
valid only if set forth in an instrument in writing signed on behalf of such
party.
ARTICLE IX.
GENERAL PROVISIONS
Section 9.1 Notices. All notices and other communications hereunder
-------
shall be in writing and shall be deemed given if delivered personally or by
commercial messenger or courier service, or mailed by registered or certified
mail (return receipt requested) or sent via facsimile (with acknowledgment of
complete transmission) to the parties at the following addresses (or at
42
<PAGE>
such other address for a party as shall be specified by like notice):
(a) if to Parent or Sub, to:
Tut Systems, Inc.
5964 W. Las Positas
Pleasanton, CA 94588
Attention: Salvatore D'Auria
Telephone No.: (925) 682-6510
Facsimile No: (925) 682-1841
with a copy to:
Akin, Gump, Strauss, Hauer & Feld, LLP
1700 Pacific Avenue, Suite 4100
Dallas, Texas 75201
Attn: Aaron A. Scow
Telephone No.: (214) 969-2807
Facsimile No.: (214) 969-4343
(b) if to the Company, to:
ActiveTelco Incorporated
c/o Pillsbury, Madison & Sutro LLP
2550 Hanover Street
Palo Alto, California 94304
Attn: Barry Lee Katzman
Telephone No.: (650) 233-4500
Facsimile No.: (650) 233-4545
with a copy to:
Pillsbury, Madison & Sutro LLP
2550 Hanover Street, Palo Alto, CA 94304
Telephone No: (650) 233-4500
Facsimile No.: (650) 233-4545
Attention: Barry Lee Katzman
(c) if to the Shareholder Representative, to:
Azeem Butt
----------
c/o Pillsbury, Madison & Sutro LLP
2550 Hanover Street
Palo Alto, California 94304
43
<PAGE>
Attn: Barry Lee Katzman
Telephone No.: (650) 233-4500
Facsimile No.: (650) 233-4545
(d) if to the Escrow Agent, to:
U.S. Bank Trust National Association
One California Street
Fourth Floor
San Francisco, CA 94111
Telephone No.: (415) 273-4532 (Ann Gadsby)
Facsimile No.: (415) 273-4593
Section 9.2 Interpretation. The words "include," "includes" and
--------------
"including" when used herein shall be deemed in each case to be followed by the
words "without limitation." The table of contents and headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
Section 9.3 Counterparts. This Agreement may be executed in one or more
------------
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other party, it being understood that all
parties need not sign the same counterpart.
Section 9.4 Entire Agreement; Assignment. This Agreement, the Exhibits
----------------------------
hereto, the Disclosure Letter, that certain Unsecured Promissory Note of the
Company in favor of Parent dated September 20, 2000 and the documents and
instruments and other agreements among the parties hereto referenced herein: (a)
constitute the entire agreement among the parties with respect to the subject
matter hereof and supersede all prior agreements and understandings both written
and oral, among the parties with respect to the subject matter hereof; (b) are
not intended to confer upon any other person (other than the Company
Shareholders) any rights or remedies hereunder; and (c) shall not be assigned by
operation of law or otherwise except as otherwise specifically provided, except
that Parent and Sub may assign their respective rights and delegate their
respective obligations hereunder (to the extent the obligations reasonably may
be delegated in the context of the transactions contemplated hereby) to their
respective affiliates.
Section 9.5 Severability. In the event that any provision of this
------------
Agreement or the application thereof, becomes or is declared by a court of
competent jurisdiction to be illegal, void or unenforceable, the remainder of
this Agreement will continue in full force and effect and the application of
such provision to other persons or circumstances will be interpreted so as
reasonably to effect the intent of the parties hereto. The parties further agree
to replace such void or unenforceable provision of this Agreement with a valid
and enforceable provision that will achieve, to the extent possible, the
economic, business and other purposes of such void or unenforceable provision.
44
<PAGE>
Section 9.6 Other Remedies. Except as otherwise provided herein, any and
--------------
all remedies herein expressly conferred upon a party will be deemed cumulative
with and not exclusive of any other remedy conferred hereby, or by law or equity
upon such party, and the exercise by a party of any one remedy will not preclude
the exercise of any other remedy.
Section 9.7 Governing Law. This Agreement shall be governed by and
-------------
construed in accordance with the laws of the State of California, regardless of
the laws that might otherwise govern under applicable principles of conflicts of
laws thereof. Each of the parties hereto irrevocably consents to the exclusive
jurisdiction and venue of any court within Santa Clara County, California, in
connection with any matter based upon or arising out of this Agreement or the
matters contemplated herein, agrees that process may be served upon them in any
manner authorized by the laws of the State of California for such persons and
waives and covenants not to assert or plead any objection which they might
otherwise have to such jurisdiction, venue and such process.
Section 9.8 Rules of Construction. The parties hereto agree that they
---------------------
have been represented by counsel during the negotiation and execution of this
Agreement and, therefore, waive the application of any law, regulation, holding
or rule of construction providing that ambiguities in an agreement or other
document will be construed against the party drafting such agreement or
document.
Section 9.9 Attorney's Fees. If any action or other proceeding relating
---------------
to the enforcement of any provision of this Agreement is brought by any
party hereto, the prevailing party shall be entitled to recover reasonable
attorneys' fees, costs and disbursements (in addition to any other relief
to which the prevailing party may be entitled).
[SIGNATURE PAGE FOLLOWS]
45
<PAGE>
IN WITNESS WHEREOF, Parent, Sub, the Company, the Shareholder
Representative and the Escrow Agent have caused this Agreement to be signed by
their duly authorized respective officers, all as of the date first written
above.
<TABLE>
<S> <C>
TUT SYSTEMS, INC. ACTIVETELCO INCORPORATED
By: /s/ Nelson B. Caldwell By: /s/ Azeem Butt
------------------------------------------ ---------------------------------------
Nelson B. Caldwell Name: Azeem Butt
---------------------------------
Vice President and Chief Financial Officer Title: President
--------------------------------
SHAREHOLDER REPRESENTATIVE ACTIVETELCO ACQUISITION
(As to the provisions of Article VII only) CORPORATION
/s/ Azeem Butt By: /s/ Nelson B. Caldwell
---------------------------------------------- ----------------------------------------
Azeem Butt Nelson B. Caldwell
Chief Financial Officer and Secretary
U.S. BANK TRUST
(As to the provisions of Article VII only)
By: /s/ Ann Gadsby
------------------------------------------
Name: Ann Gadsby
----------------------------------------
Title: Vice President
---------------------------------------
</TABLE>
46
