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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): January 12, 2000
ZAMBA CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE
(State or other jurisdiction of incorporation)
0-22718 41-1636021
(Commission File No.) (IRS Employer Identification No.)
7301 OHMS LANE, SUITE 200
MINNEAPOLIS, MINNESOTA 55439
(Address of principal executive offices and zip code)
Registrant's telephone number, including area code: (612) 832-9800
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS.
THE CURRENT REPORT ON FORM 8-K CONTAINS FORWARD LOOKING STATEMENTS WITHIN THE
MEANING OF SECTION 27A OF THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT") AND SECTION 21E OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED, RELATED TO ZAMBA CORPORATION, A DELAWARE CORPORATION ("ZAMBA"), AND
ZAMBA'S ACQUISITION OF CAMWORKS, INC., A MINNESOTA CORPORATION ("CAMWORKS"),
THAT MAY INVOLVE SUBSTANTIAL RISKS AND UNCERTAINTIES. THESE UNCERTAINTIES
INCLUDE RISKS RELATING TO THE INTEGRATION OF ZAMBA AND CAMWORKS. ACTUAL RESULTS
AND DEVELOPMENTS THEREFORE MAY DIFFER MATERIALLY FROM THOSE DESCRIBED OR
INCORPORATED BY REFERENCE IN THIS REPORT. FOR MORE INFORMATION ABOUT ZAMBA AND
RISKS ARISING WHEN INVESTING IN ZAMBA, YOU ARE DIRECTED TO ZAMBA'S MOST RECENT
REPORTS ON FORM 10-K AND FORM 10-Q, AS FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION (THE "COMMISSION").
On December 28, 1999, Zamba, ZCA Corp., a Minnesota corporation and wholly-owned
subsidiary of Zamba ("Merger Sub") and Camworks entered into an Agreement and
Plan of Merger and Reorganization (the "Agreement") providing for the merger of
Camworks with and into Merger Sub (the "Merger"). The terms of the Agreement,
including the consideration paid, were determined through arms' length
negotiations between Zamba and Camworks. Zamba is a customer care consulting
company. Camworks is a provider of web-based ecommerce software integration
services.
The Merger became effective on December 29, 1999, when the Articles of Merger
were filed with the Minnesota Secretary of State (the "Effective Time"). In
accordance with the terms of the Agreement, at the Effective Time: (a) the
separate corporate existence of Camworks ceased; with Merger Sub continuing as
the surviving corporation; and (b) each outstanding share of Camworks capital
stock was automatically converted into the right to receive 9,300 shares of
Zamba common stock. Zamba issued an aggregate of 1,000,000 shares of Zamba
common stock under Regulation D of the Securities Act in connection with the
Merger. The Merger is intended to be a tax-free reorganization under the
Internal Revenue Code of 1986, as amended, and will be accounted for as a
pooling of interests. The foregoing discussion regarding the Agreement and the
Merger is qualified in its entirety by reference to the Agreement, a copy of
which is attached hereto as Exhibit 2.1, and which is hereby incorporated by
reference.
The Merger will result in the integration of two companies that have previously
operated independently. As soon as practicable following the Merger, Zamba
intends to integrate certain aspects of the operations of Camworks into Zamba.
However, there can be no assurance that Zamba will successfully integrate the
operations of Camworks with those of Zamba or that any or all of the benefits
expected from such integration will be realized. Any delays or unexpected costs
incurred in connection with such integration could have an adverse effect on
Zamba's business, operating or financial condition. Furthermore, there can be no
assurance that the operations, management and personnel of the two companies
will be compatible or that Zamba will not experience the loss of key personnel
and clients. There can be no assurance that combining the business of Zamba and
Camworks, even if achieved in an efficient and effective manner, will result in
combined results of operations and financial condition that are superior to what
would have been achieved by Zamba or Camworks independently. In addition,
certain costs are generally associated with transactions such as the Merger.
While these costs have not been currently identified, any such costs will
adversely affect operating results of Zamba in the period in which they are
incurred. Finally, the parties intend that the transaction will be eligible for
tax-free treatment, but failure
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to obtain such status could increase the costs of the transaction.
ITEM 5. OTHER EVENTS
In connection with the Merger, Zamba entered into a Registration and Rights
Agreement dated as of December 28, 1999 providing the shareholders of Camworks
with certain rights to require registration with the Commisssion of the Zamba
common stock being issued to them in connection with the Merger, which agreement
is filed as Exhibit 4.1, and is hereby incorporated by reference.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
(a) Financial Statements
To be filed by amendment pursuant to Item 7(b)(2).
(b) Pro forma Financial Statements
To be filed by amendment pursuant to Item 7(b)(2).
(c) Exhibits
See attached Exhibit list.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
ZAMBA CORPORATION
By: /s/ PAUL D. EDELHERTZ
Paul D. Edelhertz
PRESIDENT AND CHIEF EXECUTIVE OFFICER
Dated: January 12, 2000
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EXHIBIT INDEX
TO
FORM 8-K
ZAMBA CORPORATION
Exhibit
No. Description
2.1 Agreement and Plan and Reorganization dated December 28, 1999, between
Zamba Corporation, ZCA Corp., Camworks, Inc. the Shareholders, and the
Shareholder Representative (filed herewith)
4.1 Registration and Rights Agreement dated December 28, 1999 (filed
herewith)
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Exhibit 2.1
AGREEMENT AND PLAN OF REORGANIZATION
among
ZAMBA CORPORATION
ZCA CORP.
CAMWORKS, INC.
THE SHAREHOLDERS
appearing on the signature page hereto
and the
SHAREHOLDER REPRESENTATIVE
appearing on the signature page hereto
Dated as of December 28, 1999
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AGREEMENT AND PLAN OF REORGANIZATION
This AGREEMENT AND PLAN OF REORGANIZATION dated as of December 28, 1999
among Zamba Corporation ("PARENT"), a Delaware corporation, ZCA Corp. ("MERGER
SUB"), a Minnesota corporation and a wholly owned subsidiary of Parent,
Camworks, Inc. ("CAMWORKS"), a Minnesota corporation, the shareholders of
Camworks (the "SHAREHOLDERS") appearing on the signature pages hereto and the
shareholder representative (the "SHAREHOLDER REPRESENTATIVE") appearing on the
signature pages hereto.
RECITALS
A. Upon the terms and subject to the conditions of this Agreement and in
accordance with the Minnesota Business Corporation Act (the "MBCA"), Parent and
Camworks will enter into a business combination transaction pursuant to which
Camworks will merge with and into Merger Sub.
B. Parent, Camworks, Merger Sub and the Shareholders desire to make
certain representations and warranties and other agreements in connection with
the Merger.
C. The parties intend, by executing this Agreement, to adopt a plan of
reorganization within the meaning of Section 368 of the Internal Revenue Code of
1986, as amended (the "CODE").
The parties intend that for accounting purposes the transaction be treated
as a "POOLING OF INTERESTS" under generally accepted accounting principles.
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 and subject to and upon the
terms and conditions of this Agreement and the applicable provisions of the
MBCA, Camworks shall be merged (the "MERGER") with and into Merger Sub, the
separate corporate existence of Camworks shall cease and Merger Sub shall
continue as the surviving corporation (sometimes referred to herein as the
"SURVIVING CORPORATION").
SECTION 1.2 EFFECTIVE TIME; CLOSING. Subject to the provisions of this
Agreement, the parties hereto shall cause the Merger to be consummated by filing
articles of merger ("ARTICLES OF MERGER") with the Minnesota Secretary of State
in accordance with the relevant provisions of the MBCA (the time of filing with
the Secretary of State of the State of Minnesota (or such later time as may be
agreed in writing between Parent and Camworks) being the "EFFECTIVE TIME") as
soon as practicable following the Closing Date. Unless the context otherwise
requires, the term "AGREEMENT" as used herein includes this
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Agreement and Plan of Reorganization and the Articles of Merger. The closing of
the merger (the "CLOSING") shall take place at the offices of Leonard, Street
and Deinard Professional Association, at a time and date to be specified by
Parent and Camworks (the "CLOSING DATE") which shall be no later than the Drop
Dead Date identified in Section 8.1(b).
SECTION 1.3 EFFECT OF THE MERGER. At the Effective Time, the effect of
the Merger shall be as provided in this Agreement and the applicable provisions
of the MBCA. Without limiting the generality of the foregoing, and subject
thereto, at the Effective Time all the property, rights, privileges, powers and
franchises of Camworks and Merger Sub shall vest in the Surviving Corporation,
and all debts, liabilities and duties of Camworks and Merger Sub shall become
the debts, liabilities and duties of the Surviving Corporation.
SECTION 1.4 CERTIFICATE OF INCORPORATION; BYLAWS. (a) The Articles of
Incorporation of Merger Sub, as in effect immediately prior to the Effective
Time, shall be at the Effective Time, the Articles of Incorporation of the
Surviving Corporation until thereafter amended.
(b) The Bylaws of Merger Sub, as in effect immediately prior to the
Effective Time, shall be, at the Effective Time, the Bylaws of the Surviving
Corporation until thereafter amended.
SECTION 1.5 DIRECTORS AND OFFICERS. The directors of Merger Sub
immediately prior to the Effective Time shall be the initial directors of the
Surviving Corporation, to serve until their respective successors are duly
elected or appointed and qualified. The officers of Merger Sub immediately
prior to the Effective Time shall be the initial officers of the Surviving
Corporation, to serve until their successors are duly elected or appointed or
qualified.
SECTION 1.6 EFFECT ON CAPITAL STOCK. At the Effective Time, by virtue of
the Merger and without any action on the part of Merger Sub, Camworks or the
holders of capital stock of Merger Sub or Camworks, the following actions shall
occur with respect to the capital stock of Camworks and Merger Sub:
(a) CAMWORKS COMMON STOCK. Each share of Camworks Common Stock
issued and outstanding immediately prior to the Effective Time (other than any
Shares to be canceled pursuant to Section 1.6(f) shall be converted into the
right to receive (i) if the Average Parent Stock Price is equal to or above
$6.00 per share, and less than or equal to $16.00 per share, that number of
shares of Parent common stock, par value $.01 per share ("PARENT COMMON STOCK"),
equal to the quotient (rounded to the nearest 1/10,000) determined by dividing
1,000,000 by the number of Fully Diluted Camworks Shares Outstanding, (ii) if
the Average Parent Stock Price is less than $6.00, the number of shares of
Parent Common Stock equal to the quotient (rounded to the nearest 1/10,000)
determined by dividing the Floor Ratio by the number of Fully Diluted Camworks
Shares Outstanding, and (iii) if the Average Parent Stock Price is greater than
$16.00 per share, the number of shares of Parent Common Stock equal to the
quotient (rounded to the nearest 1/10,000) determined by dividing the Ceiling
Ratio by the Number of Fully Diluted Camworks Shares Outstanding (the applicable
number of shares of Parent Common Stock issued per share of Camworks Common
Stock pursuant to clause (i), (ii) or (iii) is referred to as the "COMMON
EXCHANGE RATIO"). Parent shall notify Camworks prior to the opening of trading
on the day prior to the Closing Date, announcing the Common Exchange Ratio as
determined pursuant to this Section 1.6(a).
(b) "AVERAGE PARENT STOCK PRICE" means the average of the closing
price per share (expressed in three decimal places) on the NASDAQ National
Market System ("NASDAQ") of Parent
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Common Stock, as reported by Bloomberg Financial Markets, during the 10 trading
day period commencing on (and including) the 12th trading day prior to, and
ending on (and including) the third trading day prior to, the Closing Date.
(c) "CEILING RATIO" means the quotient (rounded to the nearest
1/10,000) determined by dividing $16,000,000 by the Average Parent Stock Price.
(d) "FLOOR RATIO" means the quotient (rounded to the nearest
1/10,000) determined by dividing $6,000,000 by the Average Parent Stock Price.
(e) "FULLY DILUTED CAMWORKS SHARES OUTSTANDING" shall be equal to the
sum of:
(1) the number of shares of Camworks Common Stock outstanding
immediately prior to the Effective Time;
(2) the number of shares of Camworks Common Stock issuable upon the
conversion of any shares of convertible securities outstanding immediately
prior to the Effective Time;
(3) the number of shares of Camworks Common Stock issuable upon the
exercise of outstanding warrants immediately prior to the Effective Time;
and
(4) the number of shares of Camworks Common Stock issuable upon the
exercise of any outstanding options of Camworks immediately prior to the
Effective Time.
(f) TREASURY STOCK. Each share of Camworks Common Stock, held in the
treasury of Camworks and each share owned by Parent or any direct or indirect
wholly owned subsidiary of Parent immediately prior to the Effective Time shall
be canceled and extinguished without any conversion thereof and no payment shall
be made with respect thereto.
(g) COMMON STOCK OF MERGER SUB. Each share of common stock of Merger
Sub issued and outstanding immediately prior to the Effective Time shall be
converted into one validly issued, fully paid and nonassessable share of common
stock of the Surviving Corporation.
(h) ADJUSTMENTS TO EXCHANGE RATIO. The Common Exchange Ratio
shall be adjusted appropriately to reflect any stock split, reverse stock
split, stock dividend (including any dividend or distribution of securities
convertible into Parent Common Stock or Camworks Common Stock),
reorganization, recapitalization, reclassification or other like change with
respect to capital stock of Parent or Camworks occurring on or after the date
hereof and prior to the Effective Time.
SECTION 1.7 DELIVERY OF PARENT SHARES. Within three business days after
the Effective Time, Parent shall deliver to the Shareholders a certificate
representing the number of shares of Parent Common Stock deliverable to each
Shareholder calculated in accordance with Section 1.6, less the number of shares
of Parent Common Stock to be deposited into escrow pursuant to Section 1.8.
SECTION 1.8 ESCROWED SHARES. Within 14 days of the Closing Date, Parent,
on behalf of the Shareholders, shall deposit into escrow, in accordance with the
terms of the Escrow Agreement (the "Escrow Agreement") in the form attached
hereto as Exhibit A, to be entered into pursuant to Section 7.2(e), 10% of the
shares (the "INDEMNITY ESCROW AMOUNT") of Parent Common Stock to be issued
pursuant to Section 1.6. The Indemnity Escrow Amount shall be deposited on
behalf of the Shareholders
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PRO RATA based on the Allocation Ratio, from the shares of Parent Common Stock
to be issued and delivered to each Shareholder as of the Effective Time. The
Shares of Parent Common Stock deposited pursuant to the Escrow Agreement,
together with any other property on deposit with the escrow agent, is referred
to herein as the "ESCROWED PROPERTY". "ALLOCATION RATIO" means (i) the number of
shares of Parent Common Stock to be issued to such Shareholder with respect to
all its shares of Camworks Common Stock divided by (ii) the total number of
shares of Parent Common Stock to be issued as of the Effective Time to all the
Shareholders.
SECTION 1.9 NO FRACTIONAL SHARES. No certificates or scrip representing
fractional shares of Parent Common Stock shall be issued in exchange for
Camworks Common Stock, and such fractional share interests will not entitle the
owner thereof to vote or to any other rights of a stockholder of Parent. All
shares of Parent Common Stock to be issued pursuant to Section 1.6 shall be
rounded up to the nearest whole share.
SECTION 1.10 EFFECT OF FAILURE TO DELIVER CAMWORKS COMMON STOCK. Until
surrendered in accordance with the provisions of this Section, each certificate
representing Camworks Common Stock held by a Shareholder shall be deemed from
and after the Effective Time, for all corporate purposes, to evidence only
ownership of the number of full shares of Parent Common Stock into which such
shares of Camworks Common Stock shall have been so converted and the right to
receive any dividends or distributions to which the holder is entitled pursuant
to Section 1.11.
SECTION 1.11 DISTRIBUTIONS WITH RESPECT TO UNEXCHANGED SHARES. No
dividends or other distributions declared or made after the date of this
Agreement with respect to Parent Common Stock with a record date after the
Effective Time will be paid to the holder of any unsurrendered Certificate of
Camworks Common Stock ("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
thereof certificates representing whole shares of Parent Common Stock issued in
exchange therefor, without interest, along with the amount of dividends or other
distributions with a record date after the Effective Time payable with respect
to such whole shares of Parent Common Stock.
SECTION 1.12 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 (i) the Certificate so surrendered will
be properly endorsed, accompanied by any documents required to evidence and
effect such transfer 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 applicable transfer 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 shall provide evidence that
any applicable transfer taxes have been paid, and (ii) the transferee shall
execute letters substantially similar to those referenced in Section 2.8 during
any period of time when such letters impose restrictions on transfer.
SECTION 1.13 NO FURTHER OWNERSHIP RIGHTS IN CAMWORKS COMMON STOCK. All
shares of Parent Common Stock into which shares of Camworks Common Stock shall
have been so converted and any dividends or distributions to which the holder is
entitled pursuant to Section 1.11 shall be deemed to have been issued in full
satisfaction of all rights pertaining to such shares of Camworks Common Stock,
and there shall be no further registration of transfers on the records of the
Surviving Corporation of shares of Camworks Common Stock that were outstanding
immediately prior to the Effective Time. If after the Effective Time,
certificates for shares of Camworks Common Stock are presented to the
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Surviving Corporation for any reason, they shall be canceled and no shares of
Parent Common Stock shall be issued in exchange thereof.
SECTION 1.14 LOST, STOLEN OR DESTROYED CERTIFICATES. Parent shall not be
required to issue any shares of Parent Common Stock for lost, stolen or
destroyed certificates, except with respect to shares of Camworks Common Stock
owned by the Shareholders and disclosed on Schedule A hereto.
SECTION 1.15 TAX CONSEQUENCES. It is intended by the parties hereto that
the Merger shall constitute a reorganization within the meaning of Section 368
of the Code. The parties hereto adopt this Agreement as a "plan of
reorganization" within the meaning of Sections 1.368-2(g) and 1.368-3(a) of the
United States Income Tax Regulations.
SECTION 1.16 TAKING OF NECESSARY ACTION; FURTHER ACTION. If, at any time
after the Effective Time, any 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 Camworks and Merger Sub, the officers and directors of
Camworks and Merger Sub are fully authorized in the name of their respective
corporations or otherwise to take, and will take, all such lawful and necessary
action, so long as such action is consistent with this Agreement.
SECTION 1.17 LEGENDS ON SHARES. (a) All certificates representing shares
of Parent Common Stock issued pursuant to Section 1.6 shall bear the following
legend:
The shares represented by this certificate have not been registered
under the Securities Act of 1933 and may not be transferred or
otherwise disposed of unless and until (i) the shares are registered
under such Act or (ii) an opinion of counsel reasonably satisfactory
to the Issuer to the effect that registration under such Act is not
required.
(b) Any certificates representing shares of Parent Common Stock that
are subject to a lock-up agreement pursuant to Section 2.9(b) shall bear the
following additional legend:
The shares represented by this certificate are subject to a Lock-Up
Agreement with the Issuer dated December 28, 1999, which expires on
December 31, 2001, and may not be transferred or otherwise disposed of
unless and until the restrictions set forth in such Lock-Up Agreement
have been released in accordance with the terms thereof.
SECTION 1.18 SHAREHOLDER CONTROL AGREEMENT; EMPLOYMENT AGREEMENTS. The
Company and the Shareholders hereby waive all rights under Sections 3 and 4 of
the Third Shareholder Control and Voting Agreement dated January 1, 1998 (the
"SHAREHOLDER CONTROL AND VOTING AGREEMENT") and all prior Shareholder Control
and Voting Agreements with respect to the transactions to be consummated hereby.
The Shareholder Control and Voting Agreement shall be deemed cancelled and
without any further force and effect at the Effective Time. All employment
agreements with Camworks shall be deemed cancelled and superceded by the
employment agreements executed pursuant to Section 7.2(f) hereof.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS
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Each Shareholder, jointly and severally, represents and warrants to
Parent and Merger Sub as of the date hereof and as of the Closing Date, as set
forth below (other than the several representations (the "SEVERAL
REPRESENTATIONS") and warranties set forth in Sections 2.9 through 2.11 below,
which representations and warranties shall be several, and not joint) subject to
the exceptions specifically disclosed in writing in the disclosure schedule
supplied to Parent (the "CAMWORKS DISCLOSURE SCHEDULE") the section references
of which correspond to the Sections and Subsections of this Agreement to which
they relate as follows:
SECTION 2.1 SHARE OWNERSHIP. The Shareholder is the record and beneficial
owner of the number of Shares set forth opposite such Shareholder's name on
Schedule A. The Shareholder does not own any securities issued by, or other
obligations of, Camworks which are not listed on Schedule A.
SECTION 2.2 LEGAL POWER; ORGANIZATION; QUALIFICATION OF SHAREHOLDERS. The
Shareholder is a natural person and is competent and has all requisite power and
authority to execute and deliver this Agreement and to consummate the Merger and
has all requisite power and authority to execute and deliver the documents and
instruments executed in connection therewith (the "ANCILLARY AGREEMENTS") to
which the Shareholder is a party.
SECTION 2.3 BINDING AGREEMENT. This Agreement has been duly executed and
delivered by the Shareholder and, assuming due and valid authorization,
execution and delivery by Parent, Merger Sub and Camworks, where applicable,
this Agreement is and each of the Ancillary Agreements to which the Shareholder
is a party, when executed and delivered by the Shareholder will, constitute a
legal, valid and binding obligation of such Shareholder, enforceable against
such Shareholder in accordance with its terms, except (i) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance and other similar laws of general application affecting enforcement
of creditors' rights generally and (ii) the availability of the remedy of
specific performance or injunctive or other forms of equitable relief may be
subject to equitable defenses and would be subject to the discretion of the
court before which any proceeding therefor may be brought.
SECTION 2.4 NO SHAREHOLDER CONFLICT OR DEFAULT. (a) Neither the execution
and delivery of this Agreement nor any of the Ancillary Agreements to which the
Shareholder is a party nor the consummation by Camworks of, nor the
participation by the Shareholder in, the Merger will result in a violation of,
or a default under, or conflict with, or require any consent, approval or notice
under, any contract, trust, commitment, agreement, obligation, understanding,
arrangement or restriction of any kind to which the Shareholder is a party or by
which the Shareholder is bound or to which shares of Camworks Common Stock owned
by the Shareholder are subject. Participation in the Merger by the Shareholder
of the Merger will not violate, or require any consent, approval or notice
under, any provision of any judgment, order, decree, statute, law, rule or
regulation applicable to the Shareholder or Camworks Common Stock owned by the
Shareholder.
(b) No filing by the Shareholder is required under the
Hart-Scott-Rodino Antitrust Improvement Act of 1976, as amended (the "HSR ACT"),
in connection with any of the transactions contemplated by this Agreement.
(c) The Shareholder has the sole and exclusive right to take all
actions with respect to the Camworks Common Stock owned by such Shareholder
(including actions with respect to shareholder approval necessary for the
Merger, execution of the Agreement and the Ancillary Documents and waiver of
dissenter's rights), free from any community property laws, spousal consent,
divorce proceeding, property settlement made or pending in connection with a
divorce, and the like. The
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Shareholders expressly agree that the disclosures made in Section 2.4(c) of the
Camworks Disclosure Schedule shall in no way limit or otherwise modify the
Shareholders' representations and warranties under this or any other Subsection
or reduce or restrict the Shareholders' indemnity obligations with respect
thereto.
SECTION 2.5 OWNERSHIP AND POSSESSION OF SHARES. The shares of Camworks
Common Stock owned by the Shareholders are now, and at all times during the term
hereof shall be, held by the Shareholders, or by a nominee or custodian for the
sole and exclusive benefit of the Shareholders, free and clear of all Liens
whatsoever, except for any Liens created by this Agreement and Liens arising
under any federal or state securities laws. Each Shareholder represents and
warrants he has lost his certificates representing shares of Camworks Common
Stock, and if not lost, such certificates were never issued. Each Shareholder
represents and warrants a share register has never been prepared, but if a share
register had been prepared, the share register would disclose that the
Shareholders were the record and beneficial owners of all issued and outstanding
shares of Camworks Common Stock.
SECTION 2.6 DISSENTER'S RIGHTS. The Shareholder represents and warrants
that (1) the Shareholder has been advised of the dissenter's rights set forth in
Section 302A.471 and 302A.473 of the MCBA ("DISSENTER'S RIGHTS") and (ii)
further represents that by approving the Merger as required by Section 6.1, such
Shareholder waives any statutory notice under the MBCA of the Dissenter's Rights
and hereby waives the Dissenter's Rights.
SECTION 2.7 [Reserved]
SECTION 2.8 ACCOUNTING MATTERS. (a) Each Shareholder represents and
warrants that the representations contained on Schedule B regarding accounting
for the Merger as a pooling of interests transaction under GAAP are true and
correct.
(b) Concurrently with the execution and delivery of this Agreement
and as a condition and inducement to Parent's and Merger Sub's willingness to
enter into this Agreement, such Shareholder has delivered a pooling letter
agreement as of the date hereof substantially in the form attached as Exhibit C
hereto.
Each Shareholder individually and not severally, makes the following
representations and warranties set forth in Sections 2.9 through 2.11 as of the
date hereof and as of the Closing Date:
SECTION 2.9 INVESTMENT REPRESENTATIONS. The Shareholder has such
knowledge and experience in financial and business matters that such Shareholder
is capable of evaluating the merits and risks of an investment in shares the of
the Parent Common Stock. The Shareholder is acquiring the Parent Common Stock
for the Shareholder's own account for investment and not with a view to, or for
sale in connection with, any distribution thereof, nor with any present
intention of distributing the Parent Common Stock. The Shareholder acknowledges
that the shares of Parent Common Stock are restricted securities that are
unregistered; that the Shareholder must hold such shares indefinitely unless
they are subsequently registered under the Securities Act or an exemption from
such registration is available; and that the Registration and Rights Agreement
constitutes the only obligation of Parent to register such shares.
SECTION 2.10 RESTRICTIONS ON TRANSFER. (a) The Shareholder will not
sell, transfer, distribute or otherwise dispose of the shares of Parent Common
Stock acquired in connection with the Merger except (i) pursuant to an effective
registration statement under the Securities Act as then in effect
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covering the shares and proposed distribution or (ii) upon first furnishing to
Parent an opinion of counsel reasonably satisfactory to it stating that the
proposed disposition is not in violation of the registration requirements of the
Securities Act and such undertakings and agreements with Parent by the proposed
transferee as Parent may reasonably require to ensure compliance with the
Securities Act of 1933, as amended (the "SECURITIES ACT").
(b) Concurrently with the execution and delivery of this Agreement and as
a condition and inducement to Parent's and Merger Sub's willingness to enter
into this Agreement, Mr. Cameron and Mr. Lundberg have delivered a lock-up
agreement as of the date hereof substantially in the form attached as Exhibit B
hereto and such Shareholders agree not to sell, transfer, distribute or
otherwise dispose of the shares of Parent Common Stock acquired in connection
with the Merger except in accordance therewith.
SECTION 2.11 INVESTIGATION. The Shareholder has been furnished with, and
has had an opportunity to read, this Agreement and all materials relating to the
business, finances, operations, and prospects of Parent that have been
reasonably requested by it, including but not limited to the reports filed by
Parent with the Securities and Exchange Commission (the "SEC") pursuant to the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT") Each
Shareholder understands that the shares of Parent Common Stock are being or will
be issued for exchange for Camworks Common Stock without any particular offering
or disclosure document, but acknowledges that the Shareholder has been given
ample opportunity to ask questions and request information of and receive
answers from Parent officials concerning the business, finances and operations
of Parent.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF CAMWORKS
Camworks represents and warrants to Parent and Merger Sub as of the date
hereof and as of the Closing Date, subject to the exceptions specifically
disclosed in writing in the Camworks Disclosure Schedule, the section references
of which correspond to the Sections and Subsections of this Agreement to which
they relate, as follows:
SECTION 3.1 ORGANIZATION OF CAMWORKS. Camworks is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Minnesota, has the requisite corporate power to own, lease and operate its
property and to carry on its business as now being conducted and as proposed by
Camworks to be conducted, and 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 Camworks Material Adverse Effect. Camworks has no
Subsidiaries. Camworks has delivered or made available a true and correct copy
of its Articles of Incorporation and its Bylaws, each as amended to date, to
Parent. The minute books of Camworks made available to Parent are the only
minute books of Camworks, and the minutes contain an accurate record of all
actions taken in all meetings of directors (or committees thereof) and
Shareholders or by written consent. The term "CAMWORKS MATERIAL ADVERSE EFFECT"
means, for purposes of this Agreement, any change, event or effect that is, or
that would reasonably be expected to be, materially adverse to the business,
assets (including intangible assets), financial condition or prospects of
Camworks or the Surviving Corporation. "SUBSIDIARY" means, with respect to any
party, any corporation or other organization, whether incorporated or
unincorporated, of which (i) such party or any other Subsidiary of such party is
a general partner (excluding partnerships, the general partnership interests of
which held by such party or any Subsidiary of such party do not have a majority
of the voting interest in such partnership) or (ii) at least 50% of the
securities or other interests having by their terms ordinary voting power to
elect a majority of the Board of Directors or others performing similar
functions
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with respect to such corporation or other organization are directly or
indirectly owned or controlled by such party or by any one or more of its
Subsidiaries, or by such party and one or more of its Subsidiaries.
SECTION 3.2 CAMWORKS CAPITAL STRUCTURE. (a) The authorized capital stock
of Camworks consists of 2,500 shares of common stock, with no par value
specified ("CAMWORKS COMMON STOCK"), of which 107.52688 shares are issued and
outstanding as of the date hereof. The outstanding shares of Camworks Common
Stock are held of record and beneficially by the persons and in the amounts set
forth on the Schedule A. All outstanding shares of Camworks Common Stock are
duly authorized, validly issued, fully paid and non-assessable and are not
subject to preemptive or similar rights created by statute, the Articles of
Incorporation or Bylaws of Camworks or any agreement or document to which
Camworks is a party or by which it is bound.
(b) All shares or other ownership interests in Camworks previously
held by Michael E. Cameron have been duly and validly redeemed and Michael E.
Cameron has no further ownership interests in the equity or assets of Camworks
and no amounts are otherwise payable to him by Camworks or as a result of the
transactions contemplated hereby. The Shareholders expressly agree that the
disclosures made under Section 3.2(b) of the Camworks Disclosure Schedule shall
in no way limit or otherwise modify the Shareholders' representations and
warranties under this or any other Subsection or reduce or restrict the
Shareholders' indemnity obligations with respect thereto.
(c) The Shareholder Control Agreement is the only effective agreement
governing the relations of the Shareholders with respect to the capital stock of
Camworks, rights of first refusal, voting and like matters. All prior versions
have been duly and effectively cancelled.
SECTION 3.3 OBLIGATIONS WITH RESPECT TO CAPITAL STOCK. Except for the
shares described in Section 3.2, there are no equity securities of any class of
Camworks, options, warrants, or any securities exchangeable or convertible into
or exercisable for such equity securities, issued, reserved for issuance or
outstanding, there are no calls, rights (including preemptive rights),
commitments or agreements of any character to which Camworks is a party or by
which it is bound obligating Camworks to issue, deliver or sell, or cause to be
issued, delivered or sold, or repurchase, redeem or otherwise acquire, or cause
the repurchase, redemption or acquisition, of any shares of capital stock of
Camworks or obligating Camworks to grant, extend, accelerate the vesting of or
enter into any such option, warrant, equity security, call, right, commitment or
agreement. There are no registration rights and, to the knowledge of Camworks,
there are no voting trusts, proxies or other agreements or understandings, with
respect to any equity security of any class of Camworks.
SECTION 3.4 AUTHORITY. (a) Camworks has all requisite corporate power and
authority to enter into this Agreement and any Ancillary Documents to which
Camworks is a party 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 Camworks. This Agreement has been duly executed
and delivered by Camworks and, assuming the due authorization, execution and
delivery by the Shareholders, Parent and Merger Sub, this Agreement constitutes
the valid and binding obligation of Camworks, enforceable against it in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general principles of equity.
The execution and delivery of this Agreement by Camworks does not, and the
performance of this Agreement by Camworks will not (i) conflict with or violate
the Articles of Incorporation or Bylaws of Camworks, (ii) subject to compliance
with the requirements set forth in Section 3.4(b) below, conflict with or
violate any law, rule, regulation, order, judgment or decree
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(collectively "LAWS") applicable to Camworks or by which any of its properties
is bound, or (iii) result in any breach of or constitute a default (or an event
that with notice or lapse of time or both would become a default) under, or
impair the rights of Camworks or alter the rights or obligations of any third
party under, or give to others any rights of termination, amendment,
acceleration or cancellation of, or result in the creation of a lien or
encumbrance on any of the properties or assets of Camworks pursuant to, any
note, bond, mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation to which Camworks is a party or by
which Camworks or its properties are bound or affected, except, with respect to
clauses (ii) and (iii), for any such conflicts, violations, defaults or other
occurrences that would not, individually or in the aggregate, have a Camworks
Material Adverse Effect. The Camworks Disclosure Schedule lists all consents,
waivers and approvals under any of Camworks' agreements, contracts, licenses or
leases required to be obtained in connection with the consummation of the
transactions contemplated hereby.
(b) To the knowledge of Camworks, after due inquiry, each consent,
approval, order or authorization of, or registration, declaration or filing with
any court, administrative agency or commission or other governmental or
regulatory body or authority or instrumentality ("GOVERNMENTAL ENTITY") required
by or with respect to Camworks in connection with the execution and delivery of
this Agreement or any Ancillary Documents to which it is a party or the
consummation of the transactions contemplated hereby has been obtained, except
for (i) the filing of the Articles of Merger with the Secretary of State of
Minnesota, (ii) such consents, approvals, orders, authorizations, registrations,
declarations and filings as may be required under applicable federal and state
securities laws and the laws of any foreign country, and (iii) such other
consents, authorizations, filings, approvals and registrations that are set
forth on the Camworks Disclosure Schedule.
SECTION 3.5 CAMWORKS FINANCIAL STATEMENTS. (a) Camworks has previously
delivered to Parent the financial statements of Camworks as of and for the 11
month period ended November 30, 1999 (collectively, the "CAMWORKS FINANCIAL
STATEMENTS"), including the balance sheet (the "CAMWORKS BALANCE SHEET") of
Camworks as of November 30, 1999 (the date of such Camworks Balance Sheet being
referred to herein as the "BALANCE SHEET DATE") and the profit and loss
statement or the 11 month period ended November 30, 1999. The Camworks
Financial Statements have been prepared from, and are in accordance with, the
books and records of Camworks and present fairly the financial position and the
results of operations of Camworks as of the dates and for the periods indicated,
in each case in accordance with generally accepted accounting principles
("GAAP") consistently applied throughout the periods involved except as
otherwise stated therein. Camworks has no liabilities (absolute, accrued,
contingent or otherwise), whether or not of a nature required to be disclosed on
a balance sheet or in the related notes to the consolidated financial statements
prepared in accordance with GAAP, that are, individually or in the aggregate,
material to the business, results of operations or financial condition of
Camworks, except liabilities (i) provided for in the Camworks Balance Sheet,
(ii) incurred since the Balance Sheet Date in the ordinary course of business
consistent with past practices or (iii) incurred in connection with the
transactions contemplated hereby.
(b) The books and records and internal controls of Camworks are
auditable and adequate to permit the preparation after the Effective Time of
audited financial statements of Camworks and pro forma information in accordance
with GAAP and the rules and regulations of the SEC, for all periods required to
be presented by the rules and regulations of the SEC, and within the time limits
imposed by the rules and regulations of the SEC.
(c) All accounts receivable and unbilled accounts receivable of
Camworks are collectible within the later of the date that is 60 days past the
Closing Date or 90 days from invoicing
<PAGE>
thereof.
(d) All accounts payable and accrued liabilities of Camworks were
incurred in the ordinary course of business under standard terms and conditions.
SECTION 3.6 ABSENCE OF CERTAIN CHANGES OR EVENTS. Since the Balance Sheet
Date, there has not occurred any Camworks Material Adverse Effect and there has
not been, occurred or arisen any:
(a) amendments or changes to the Articles of Incorporation or Bylaws
of Camworks;
(b) individual capital expenditure or commitment, or series of
related capital expenditure or commitments, by Camworks exceeding $5,000;
(c) destruction of, damage to or loss of any assets material to the
business of Camworks (whether or not covered by insurance);
(d) notification from a material customer of an intent to discontinue
to do business with Camworks;
(e) labor trouble or claim of wrongful discharge (except for such
claims as would not reasonably be expected to result in potential damages
greater than $5,000) or other unlawful labor practice or action;
(f) material change in accounting methods or practices (including any
change in depreciation or amortization policies or rates) by Camworks;
(g) material revaluation by Camworks of any of its assets or any
material accounting charges against the earnings of Camworks;
(h) declaration, setting aside or payment of a dividend or other
distribution with respect to the capital stock of Camworks, or any direct or
indirect redemption, purchase or other acquisition by Camworks of any of its
capital stock;
(i) increase in the salary or other compensation payable or to become
payable to any of its (i) officers or directors or (ii) any employee or advisor
receiving, after such increase, annualized compensation in excess of $5,000 per
year, or declaration, payment or commitment or obligation of any kind for the
payment of a bonus or other additional salary or compensation to any such person
or grant or amendment of any stock option or other agreement pertaining to any
such person;
(j) sale, lease, license or other disposition of any material amount
of the assets or properties of Camworks;
(k) amendment or termination of any material contract, agreement or
license to which Camworks is a party or by which it is bound or any contract
listed in Section 3.17 of the Camworks Disclosure Schedule;
(l) loan by Camworks to any person or entity, incurring by Camworks
of any indebtedness for borrowed money guaranteeing by Camworks of any
indebtedness, issuance or sale of any debt securities of Camworks or
guaranteeing of any debt securities of others, except for advances to
<PAGE>
employees for travel and business expenses and endorsing of checks payable to
Camworks in the ordinary course of business, consistent with past practices;
(m) waiver or release of any material right or claim of Camworks,
including any write-off or other compromise of any account receivable of
Camworks other than in the ordinary course of business and consistent with past
practices;
(n) change in pricing or royalties set or charged by Camworks to its
customers or licensees or in pricing or royalties set or charged by persons who
have licensed Camworks Intellectual Property to Camworks other than in the
ordinary course of business and consistent with past practices;
(o) other transaction by Camworks except in the ordinary course of
business as conducted on the Balance Sheet Date and consistent with past
practices; or
(p) payments of bonuses or Christmas bonuses to the employees of
Camworks generally;
(q) amounts outstanding under Camworks' line of credit exceeding
$5,000; or
(r) commitment, understanding or agreement by Camworks or any officer
or employee thereof to do any of the things described in the preceding clauses
(a) through (q) (other than this Agreement).
SECTION 3.7 TAXES. (a) DEFINITION OF TAXES. For the purposes of this
Agreement, "TAX" or, collectively, "TAXES", means any and all federal, state,
local and foreign taxes, assessments and other governmental charges, duties,
impositions and liabilities in the nature of a tax including taxes based upon or
measured by gross receipts, income, profits, sales, use and occupation, and
value added, ad valorem, transfer, franchise, withholding, payroll, recapture,
employment, excise and property taxes, together with all interest, penalties and
additions imposed with respect to such amounts and 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.
(i) Camworks has prepared and filed all required federal, state,
local and foreign returns, estimates, information statements and reports
("RETURNS") relating to any and all Taxes concerning or attributable to
Camworks or its operations and such Returns are true and correct in all
material respects and have been completed in all material respects in
accordance with applicable law or, with respect to any Taxes payable, an
adequate reserve has been established on the Camworks Balance Sheet.
(ii) Camworks (A) has paid or accrued all Taxes set forth on its
Returns, and (B) has withheld and paid (or will pay at the time required)
with respect to its employees all federal and state income taxes, FICA,
FUTA and other Taxes required to be withheld.
(iii) Camworks is not delinquent in any material respect in the
payment of any Tax nor is there any material Tax deficiency outstanding,
proposed or assessed against Camworks, nor has Camworks executed any waiver
of any statute of limitations on or extending the period for the assessment
or collection of any Tax which has not expired.
<PAGE>
(iv) No audit or other examination of any Return of Camworks is
currently in progress, nor has Camworks been notified of any request for
such an audit or other examination.
(v) Camworks did not have, as of the Balance Sheet Date, any
material liabilities, whether asserted or unasserted, contingent or
otherwise, for unpaid federal, state, local and foreign Taxes that have not
been accrued or reserved against in accordance with GAAP on the Camworks
Balance Sheet, and Camworks has not incurred any such liabilities since
such date except in the ordinary course of business and consistent with
past practices.
(vi) Camworks has made available to Parent copies of all federal and
state income and all state sales and use Returns for all periods since
inception of Camworks.
(vii) There are (and as of immediately following the Effective Date
there will be) no liens, pledges, charges, claims, security interests or
other encumbrances of any sort ("LIENS") of a material nature on the assets
of Camworks relating to or attributable to Taxes, except for Liens for
Taxes not yet due and payable or that are being contested in good faith by
appropriate proceedings. Camworks has not received written or oral notice
of any claim relating or attributable to Taxes that, if adversely
determined, would result in any Lien on the assets of Camworks.
(viii) There is no contract, agreement, plan or arrangement, including
but not limited to the provisions of this Agreement, covering any employee
or former employee of Camworks that, individually or collectively, could
give rise to the payment of any amount that would not be deductible
pursuant to Section 280G of the Code or the limitations in Sections 162 of
the Code.
(ix) Camworks has not filed any consent agreement under Section
341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to
any disposition of a subsection (f) asset (as defined in Section 341(f)(4)
of the Code) owned by Camworks.
(x) Camworks has not agreed to, or is not required to, make any
adjustments under Section 481(c) of the Code by reason of a change in
accounting method or otherwise.
(xi) The Surviving Corporation shall not be required to include in a
taxable period ending after the Effective Time taxable income, profits,
gains or returns (together "income") attributable to income that either
accrued or arose by reference to any events or transactions which occurred
in a prior taxable period but was not recognized in any prior taxable
period whether or not as a result of the installment method of accounting,
the completed contract method of accounting, the long-term contract method
of accounting or comparable provisions of state, local or foreign tax law.
(xii) Camworks has paid all taxes due to any state or foreign
jurisdiction as a result of sales into such jurisdiction.
(xiii) Camworks has made and each Shareholder has consented to a valid
election (which has not been revoked or terminated or otherwise become
ineffective) under Section 1362(a) of the Code to be taxed as an "S
corporation" under Section 1361 through 1379 of the Code. Camworks and
each Shareholder have made and consented to valid elections to be taxed in
a comparable fashion under comparable state, local, provincial or foreign
Tax law for all
<PAGE>
applicable jurisdictions. Camworks has not been, nor will it be, subject
to any Federal corporate income taxes imposed under Chapter 1 of the Code
(other than Code Sections 1374 and 1375 (and their predecessor Sections
under the Internal Revenue Code of 1954, as amended)) or any state, local,
provincial or foreign income or franchise Taxes. Camworks has not had any
taxable earnings or profits during a taxable year with respect to which an
election under Section 1362(a) of the Code to be treated as an "S
Corporation" was not in effect.
(xiv) Camworks has not been a member of any affiliated, consolidated,
combined, unitary or aggregate group for the purpose of filing Tax returns
and Camworks has no liability for Taxes of such a Group.
(xv) Camworks does not have any reason to believe that any
conditions exist that could reasonably be expected to prevent the Merger as
qualifying as a "reorganization" under Section 368 of the Code.
SECTION 3.8 RESTRICTIONS ON BUSINESS ACTIVITIES. There is no agreement
(noncompete or otherwise), commitment, judgment, injunction, order or decree to
which Camworks is a party or, to the knowledge of Camworks, otherwise binding
upon Camworks, that has or reasonably could be expected to have the effect of
prohibiting or impairing in a material way any business practice of Camworks,
any acquisition of property (tangible or intangible) by Camworks or the conduct
of business by Camworks. Without limiting the foregoing, Camworks has not
entered into any agreement under which Camworks is restricted from selling,
licensing or otherwise distributing any of its products to any class of
customers, or providing consulting services, in any geographic area, during any
period of time or in any segment of the market, and Camworks has not granted any
exclusive rights with respect to any of its products to any other person.
SECTION 3.9 TITLE TO PROPERTIES; ABSENCE OF LIENS AND ENCUMBRANCES. (a)
Camworks does not own any real property. Section 3.9(a) of the Camworks
Disclosure Schedule lists all real property leases to which Camworks is a party
and each amendment thereto. All such current leases are in full force and
effect, are valid and effective in accordance with their respective terms, and
there is not, under any of such leases, any existing default or event of default
(or event which with notice or lapse of time, or both, would constitute a
default) that would give rise to a claim in an amount greater than $5,000.
(b) Camworks has good and valid title to, or, in the case of leased
properties and assets, valid leasehold interests in, all of its tangible
properties and assets, real, personal and mixed, used or held for use in its
business, and such properties and assets, as well as all other properties and
assets of Camworks, whether tangible or intangible, are free and clear of any
Liens, except as reflected in the Camworks Financial Statements or in the
Camworks Disclosure Schedule and except for Liens for taxes not yet due and
payable and such imperfections of title and encumbrances, if any, that are not
material in character, amount or extent, and that do not materially detract from
the value, or materially interfere with the present use, of the property subject
thereto or affected thereby. All personal property of Camworks is in good
working condition, ordinary wear and tear excepted.
SECTION 3.10 INTELLECTUAL PROPERTY. (a) Camworks owns, is licensed or
otherwise possesses legally enforceable rights to use, all patents, trademarks,
domain names, trade names, service marks, copyrights, and any applications
therefor, schematics, technology, know-how, computer software programs or
applications (in both source code and object code form), and tangible or
intangible proprietary information or material that are (i) required or
reasonably necessary for the conduct of business of Camworks as currently
conducted or (ii) under development for such business (collectively,
<PAGE>
the "CAMWORKS INTELLECTUAL PROPERTY").
(b) The Camworks Disclosure Schedule sets forth a list of all
federal, state and foreign patents, registered copyrights, registered
trademarks, domain registrations, and any applications therefor included in the
Camworks Intellectual Property, and specifies, where applicable, the
jurisdictions in which each such item of Camworks Intellectual Property has been
issued or registered or in which an application for such issuance or
registration has been filed, including the respective registration or
application numbers and the names of all registered owners. The Camworks
Disclosure Schedule sets forth a list of all material licenses, sublicenses and
other agreements to which Camworks is a party and pursuant to which Camworks or
any other person is authorized to use or license the use of any (i) Camworks
Intellectual Property or trade secret of Camworks and (ii) third party patents,
copyrights, trademarks, and applications for registration thereof, schematics,
technology, know-how, computer software programs or applications (in both source
code and object code form), and tangible or intangible proprietary information
or material that are, are incorporated in, or form a part of any Camworks
Intellectual Property. The execution and delivery of this Agreement by
Camworks, and the consummation of the transactions contemplated hereby, will not
cause Camworks to be in violation or default under any such license, sublicense
or agreement, nor entitle any other party to any such license, sublicense or
agreement to terminate or modify such license, sublicense or agreement. Camworks
is (i) the sole and exclusive owner of, with all right, title and interest in
and to (free and clear of any Liens), the Camworks Intellectual Property, or
(ii) a licensee of the Camworks Intellectual Property under valid and binding
license agreements listed in the Camworks Disclosure Schedule.
(c) No claims with respect to Camworks Intellectual Property have
been asserted in writing or are, to Camworks' knowledge, threatened by any
person (i) to the effect that the manufacture, sale, licensing or use of any of
the products of Camworks infringes on any copyright, patent, trademark, service
mark, trade secret or other proprietary right of any third party, (ii) against
the use by Camworks of any trademarks, service marks, trade names, trade
secrets, copyrights, patents, technology, know-how or computer software programs
and applications used in Camworks' business as currently conducted or under
development for use in such business or (iii) challenging the ownership by
Camworks, or the validity or effectiveness, of any of the Camworks Intellectual
Property. Camworks has not infringed, and the business of Camworks does not
infringe, any copyright, patent, trade secret or other proprietary right of any
third party. To the knowledge of Camworks, there is no material unauthorized
use, infringement or misappropriation of any of Camworks Intellectual Property
by any third party, including any employee or former employee of Camworks. No
Camworks Intellectual Property or product of Camworks is subject to any
outstanding decree, order, judgment or stipulation restricting in any manner the
licensing thereof by Camworks.
(d) Section 3.10(d) of the Camworks Disclosure Schedule lists all
Software (other than Software acquired in the ordinary course of business or
having an acquisition price of less than $1,000) owned, licensed, leased, or
otherwise used by the Camworks, and identifies which Software is owned,
licensed, leased, or otherwise used, as the case may be. Section 3.10(d) of the
Camworks Disclosure Schedule lists all Software sold, licensed, leased or
otherwise distributed by Camworks to any third party, and identifies which
Software is sold, licensed, leased, or otherwise distributed as the case may be.
With respect to the Software set forth in Section 3.10(d) of the Camworks
Disclosure Schedule which Camworks purports to own, such Software was either
developed (1) by employees of the Company within the scope of their employment,
or (2) by independent contractors who have assigned their rights to the Company
pursuant to written agreements. In each agreement pursuant to which Camworks
has licensed its Software to third parties, Camworks has not (1) failed to limit
its liability to the amount of the fees paid pursuant to the agreements or (2)
<PAGE>
warranted as to the performance or functionality of the Software other than to
state that the Software would perform in accordance with its documentation
and/or specifications. "SOFTWARE" means any and all (v) computer programs,
including any and all software implementations of algorithms, models and
methodologies, whether in source code or object code, (w) databases and
compilations, including any and all data and collections of data, whether
machine readable or otherwise, (x) descriptions, flow-charts and other work
product used to design, plan, organize and develop any of the foregoing, (y) the
technology (other than hardware) supporting any Internet site(s) operated by or
on behalf of the Camworks, and (z) all documentation, including user manuals and
training materials, relating to any of the foregoing.
(e) To the knowledge of Camworks, after due inquiry, any Software
that Camworks licenses and maintains pursuant to contracts with third parties
("LICENSED SOFTWARE") processes accurately (including calculating, comparing and
sequencing) in all material respects date data from, into and between the
twentieth and twenty-first centuries, including leap year calculations
("MILLENNIAL DATE DATA"). To the knowledge of Camworks, after due inquiry, all
such Licensed Software processes Millennial Date Data without material errors or
omissions and without materially affecting functionality when used in accordance
with the product documentation provided by the Camworks therefor and provided
that all other software and all hardware and firmware used in combination with
such Licensed Software properly exchanges date data with it. Camworks has not
made any representation or warranty to any third party that varies in any
material respect from the preceding representation.
(f) Camworks has obtained written representations or other
unwritten assurances from each third party that (1) provides or will provide
Millennial Date Data to Camworks, (2) processes or will process Millennial Date
Data for Camworks or (3) otherwise provides or will provide any material product
or service to Camworks that is dependent upon any Software, microcode, chip or
hardware system or component, including any electronic or electronically
controlled system or component (a "SYSTEM") that processes any Millennial Date
Data, stating that all of such Systems that are used for, or on behalf of,
Camworks will process Millennial Date Data without materially affecting the
supply of such product or service to Camworks after December 31, 1999.
(g) Each current and former employee and officer of Camworks has
executed an employment agreement in substantially the form previously provided
to Parent.
SECTION 3.11 COMPLIANCE; PERMITS; RESTRICTIONS. (a) Camworks is not in
conflict with, or in default or violation of, (i) any law, rule, regulation,
order, judgment or decree applicable to Camworks or by which any of its
properties is bound or affected, or (ii) any note, bond, mortgage, indenture,
contract, agreement, lease, license, permit, franchise or other instrument or
obligation to which Camworks is a party or by which Camworks or any of its
properties is bound or affected, except for any conflicts, defaults or
violations that, individually or in the aggregate, would not have a Camworks
Material Adverse Effect.
(b) Camworks holds all consents, permits, licenses, variances,
exemptions, orders and approvals from governmental authorities that are material
to the operation of the business of Camworks (collectively, the "CAMWORKS
PERMITS"). Camworks is in compliance with the terms of Camworks Permits, except
where the failure to so comply, individually or in the aggregate, would not have
a Camworks Material Adverse Effect.
SECTION 3.12 LITIGATION. There is no action, suit or proceeding of any
nature pending or, to Camworks' knowledge, threatened against Camworks or any of
its properties, officers or directors, in
<PAGE>
their respective capacities as such (i) involving Camworks Intellectual Property
or in which injunctive or other equitable relief or damages in excess of $5,000
are or are reasonably likely to be sought against Camworks or that could
otherwise result in a Camworks Material Adverse Effect or (ii) that in any
manner challenges or seeks to prevent, enjoin, alter or delay any of the
transactions contemplated by this Agreement. To Camworks' knowledge, there is no
investigation pending or threatened against Camworks, its properties or any of
its officers or directors by or before any Governmental Entity that would have a
Camworks Material Adverse Effect. The Camworks Disclosure Schedule sets forth,
with respect to any pending or threatened action, suit, proceeding or
investigation, the forum, the parties thereto, the subject matter thereof and
the amount of damages claimed or other remedy requested. To the knowledge of
Camworks, no Governmental Entity has at any time challenged or questioned in
writing the legal right of Camworks to manufacture, offer or sell any of its
products in the present manner or style thereof.
SECTION 3.13 BROKERS' AND FINDERS' FEES; TRANSACTION EXPENSES. Camworks
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
3.13 of the Camworks Disclosure Schedule sets forth Camworks' best estimate of
legal, accounting and other transaction costs and expenses to be incurred in
connection with the Merger.
SECTION 3.14 EMPLOYEE BENEFITS. (a) The Camworks Disclosure Schedule
contains a complete and accurate list of all Employee Benefit Plans maintained
or contributed to by Camworks, or any ERISA Affiliate. For purposes of this
Agreement, "EMPLOYEE BENEFIT PLAN" means (i) any "employee pension benefit plan"
(as defined in Section 3(2) of the Employee Retirement Income Security Act of
1974, as amended ("ERISA")), (ii) any "employee welfare benefit plan" (as
defined in Section 3(1) of ERISA), and (iii) any other written or oral plan,
agreement or arrangement involving direct or indirect compensation, including
without limitation insurance coverage, severance benefits, disability benefits,
health benefits, life insurance or death benefits, dependent care benefits,
deferred compensation, bonuses, Camworks paid perks (including use of autos,
auto allowances, memberships, cell phone arrangements, telephone lines or other
arrangements permitting the use of Camworks property or reimbursement of
expenses), stock options, stock purchase, phantom stock, stock appreciation or
other forms of incentive compensation or post-retirement or post-termination
compensation, vacation, and sick pay, or other paid or unpaid time off benefits,
transportation benefits, or fringe benefits in each case relating to any current
or former director, employee or consultant of Camworks. For purposes of this
Agreement, "ERISA AFFILIATE" means any entity which is a member of (i) a
controlled group of corporations (as defined in Section 414(b) of the Code),
(ii) a group of trades or businesses under common control (as defined in Section
414(c) of the Code), or (iii) an affiliated service group (as defined under
Section 414(m) of the Code), any of which includes Camworks. Complete and
accurate copies of all Employee Benefit Plans that have been reduced to writing
(including related and ancillary documents, and copies of the IRS Forms 5500,
5500C or 5500R for the most recent three Plan Years for any Employee Benefit
Plan with respect to which such forms have been filed) have been provided to
Parent, and Camworks has made available to Parent written summaries of any such
plans that have not been reduced to writing.
(b) The Camworks Disclosure Schedule lists each Employee Benefit
Plan pursuant to which (i) any amount in excess of $5,000 may become payable
(whether currently or in the future), any of the benefits of which will be
increased, or the vesting of the benefits under which will be accelerated, by
the occurrence of any of the transactions contemplated by this Agreement or (ii)
the value of any of the benefits will be calculated on the basis of any of the
transactions contemplated by this Agreement.
<PAGE>
(c) All Employee Benefit Plans are in compliance in all material
respects with the currently applicable provisions of the terms of the Plans
(except to the extent of any change in applicable governing law not yet required
to be incorporated into the instruments or documents governing the Plans), ERISA
and the Code and the regulations thereunder.
(d) Each Employee Benefit Plan that is intended to be qualified
under Section 401(a) of the Code is so qualified and has been so qualified
during the period from its adoption to the date hereof, and each trust forming a
part thereof is exempt from tax pursuant to Section 501(a) of the Code.
Camworks does not know of any facts or circumstances that would materially
adversely affect such qualification. Camworks has provided Parent with copies
of the most recent Internal Revenue Service determination letters with respect
to any such Employee Benefit Plans and the trust statements for the most recent
three plan years.
(e) No Employee Benefit Plan constitutes or since the enactment of
ERISA has constituted a "multiemployer plan," as defined in Section 3(37) of
ERISA (a "Multiemployer Plan") or an employee stock ownership plan (ESOP) as
defined in Section 4975(e)(7) of the Code, or a multiple employer welfare
arrangement under Section 3(40) of ERISA. No Employee Benefit Plans is subject
to Title IV of ERISA.
(f) There are no pending or, to the best knowledge of Camworks,
threatened claims (other than routine claims for benefits), actions, suits or
proceedings by, or on behalf of or against any of the Employee Benefit Plans or
any trusts related thereto.
(g) With respect to each Employee Benefit Plan, neither Camworks
nor any ERISA Affiliate has engaged in a "prohibited transaction" (as such term
is defined in Section 4975 of the Code or Section 406 of ERISA) that would
subject Camworks, the Surviving Corporation or the Parent to any taxes,
penalties or other liabilities resulting from prohibited transactions under
Section 4975 of the Code or Section 409 or 502(i) of ERISA. Neither Camworks
nor any ERISA Affiliate has engaged or failed to engage in any conduct which
could subject Camworks, the Surviving Corporation or the Parent to any liability
arising out of or relating to a breach of fiduciary duty, including, but not
limited to, liability under ERISA.
(h) No Employee Benefit Plan provides benefits to former employees
of Camworks other than continuation coverage required by Section 4980B of the
Code and Section 601 of ERISA, or similar provisions of applicable state law.
(i) There is no requirement that the Parent, Surviving Corporation
or Camworks make any further contributions to any Employee Benefit Plan after
the Closing Date, and each Employee Benefit Plan which provides benefits to or
on behalf of employees or former employees of Camworks may be terminated by
Camworks, Surviving Corporation or Parent in its sole discretion on or after the
Closing Date without liability of any kind or description whatsoever to
Camworks, Surviving Corporation, Parent, any of Camworks' ERISA Affiliates, or
any other person, entity or governmental agency.
SECTION 3.15 EMPLOYMENT MATTERS. (a) COMPLIANCE. Camworks (i) is in
compliance in all material respects with all applicable foreign, federal, state
and local laws, rules and regulations respecting employment, employment
practices, terms and conditions of employment and wages and hours, in each case,
with respect to its employees; (ii) has withheld all amounts required by law or
by agreement to be
<PAGE>
withheld from the wages, salaries and other payments to its 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
or obligations for its employees (other than routine payments to be made in the
normal course of business and consistent with past practice).
(b) LABOR. No work stoppage or labor strike against Camworks is
pending or, to the knowledge of Camworks, threatened. Except as set forth in
the Camworks Disclosure Schedule, Camworks is not involved in or, to the
knowledge of Camworks, 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, that, if adversely determined, would, individually or
in the aggregate, have a Camworks Material Adverse Effect. To the knowledge of
Camworks, Camworks has not engaged in any unfair labor practices within the
meaning of the National Labor Relations Act that would, individually or in the
aggregate, directly or indirectly have a Camworks Material Adverse Effect.
Camworks is not presently, nor has it been in the past, a party to, or bound by,
(i) any collective bargaining agreement or union contract with respect to its
employees and no collective bargaining agreement is being negotiated by Camworks
or (ii) any statutory works council or other agreement, statute, rule or
regulation that mandates employee approval, participation, consultation or
consent with regard to the transactions contemplated hereby.
(c) EMPLOYEES. To Camworks' knowledge, no employee of Camworks (i)
is in violation of any term of any employment contract, patent disclosure
agreement, non-competition agreement, or any restrictive covenant to a former
employer relating to the right of any such employee to be employed by Camworks
because of the nature of the business conducted or presently proposed to be
conducted by Camworks or to the use of trade secrets or proprietary information
of others or (ii) with respect to officers of Camworks, no officer has given
notice to Camworks, nor is Camworks otherwise aware, that any such officer
intends to terminate his or her employment with Camworks.
(d) PAYROLL. Section 3.15(d) of the Camworks Disclosure Schedule
includes a complete and accurate list of all officers and employees of Camworks,
as of the date hereof, and salary paid in calendar year 1999.
SECTION 3.16 ENVIRONMENTAL MATTERS. Camworks has complied in all respects
with all applicable laws and regulations relating to the environment or
occupational health and safety except to the extent any noncompliance would not
result in a Camworks Material Adverse Effect. There is no pending or, to the
knowledge of Camworks, threatened civil or criminal litigation, written notice
of violation, formal administrative proceeding, or investigation, inquiry or
information request by any Governmental Entity, relating to any such law. There
have been no releases by Camworks, or to Camworks' knowledge, by others, of any
chemicals, pollutants, contaminants, or hazardous substances into the
environment at any parcel of real property or any facility formerly or currently
owned, leased, operated or controlled by Camworks in violation of environmental
law.
SECTION 3.17 AGREEMENTS, CONTRACTS AND COMMITMENTS. (a) CERTAIN MATERIAL
CONTRACTS. Camworks is not a party to or bound by:
(i) any agreement, contract or commitment containing any covenant
limiting the freedom of Camworks to engage in any line of business or
compete with any person or to disclose information to any third party;
<PAGE>
(ii) any agreement, contract or commitment relating to capital
expenditures and involving future obligations in excess of $5,000 and not
cancelable without penalty;
(iii) any agreement, contract or commitment currently in force
relating to the disposition or acquisition of assets not in the ordinary
course of business or any ownership interest in any corporation,
partnership, joint venture or other business enterprise;
(iv) any mortgages, indentures, loans or credit agreements, security
agreements relating to a material amount of assets or other agreements or
instruments relating to the borrowing of money or extension of credit;
(v) any other agreement, contract or commitment (excluding real
property leases but including personal property leases) which requires
annual payments by Camworks under any such agreement, contract or
commitment of $5,000 or more in the aggregate and is not cancelable without
penalty within thirty (30) days; provided however, that, notwithstanding
the disclosure provided in Section 3.17(a) of the Camworks Disclosure
Schedule, Parent will not assume any obligations relating to the Automobile
Lease Agreements listed therein, and that such obligations will be assumed
by the respective Shareholders identified therein as soon as practicable
following the Closing Date.
(b) NO BREACHES. Neither Camworks nor, to Camworks' knowledge, any
other party has breached, violated or defaulted under, or received notice that
it has breached, violated or defaulted under, any of the material terms or
conditions of any agreement, contract or commitment to which Camworks is a party
or by which it is bound in such a manner as would permit any other party to
cancel or terminate any such agreement, contract or commitment or to seek
damages, which in any case would exceed $5,000.
(c) CUSTOMERS. The Camworks Disclosure Schedule sets forth the ten
(10) customers who accounted for the largest sales of products and/or services
of Camworks for the year 1998 and the eleven months ended November 30, 1999
("CUSTOMERS"). Section 3.17(c) of the Camworks Disclosure Schedule sets forth
each contract which resulted in revenues in excess of $10,000 during the eleven
months ended November 30, 1999 and each contract expected to result in a loss,
and includes a copy of each written contract under which Camworks may be subject
to any continuing obligations after the Closing Date. Camworks' relationships
with the Customers are good commercial working relationships. No Customer has
canceled or otherwise terminated its relationship with Camworks. Camworks has
not received any written threat or notice from any Customer, to terminate,
cancel or otherwise materially and adversely modify its relationship with the
Company.
SECTION 3.18 ACCOUNTING MATTERS. Camworks represents and warrants that the
representations contained on Schedule B regarding accounting for the Merger as a
pooling of interests transaction under GAAP are true and correct.
SECTION 3.19 ENTIRE BUSINESS. None of the Shareholders or their
affiliates own any assets necessary for the conduct of the business conducted or
proposed to be conducted by Camworks.
SECTION 3.20 CHANGE IN CONTROL. Camworks is not a party to any contract,
agreement or understanding which contains a "change in control," "potential
change in control" or similar provision. The consummation of the transactions
contemplated hereby will not (either alone or upon the occurrence
<PAGE>
of any additional acts or events) result in any payment (whether of severance
pay or otherwise) becoming due from Camworks to any person.
SECTION 3.21 INSURANCE. Section 3.21 of the Camworks Disclosure Schedule
sets forth each insurance policy of Camworks. All such insurance policies are
in full force and effect and will not be terminated or be subject to termination
as a result of the transactions contemplated hereby, except that,
notwithstanding the disclosure provided in Section 3.21 of the Camworks
Disclosure Schedule, Parent will not maintain any coverage under the Automobile
Insurance listed therein; however, at the option of each respective Shareholder
identified therein, Parent will assign such policies to such Shareholder as soon
as practicable following the Closing Date.
SECTION 3.22 BANK ACCOUNTS. Section 3.22 of the Camworks Disclosure
Schedule sets forth each bank account of Camworks and lists the authorized
signatories with respect thereto.
SECTION 3.23 PRIOR TRANSACTIONS. All prior transactions for the
acquisition of Camworks (whether by stock purchase, asset sale, merger or
otherwise) have been duly and validly terminated. The execution of this
agreement does not, and the prior negotiations related thereto, did not, violate
any agreement or letter of intent with any potential acquiror of Camworks. The
Shareholders expressly agree that the disclosures made in Section 3.23 of the
Camworks Disclosure Schedule shall in no way limit or otherwise modify the
Shareholders' representations and warranties under this or any other Subsection
or reduce or restrict the Shareholders' indemnity obligations with respect
thereto.
SECTION 3.24 OTHER. Neither this Agreement nor any of the exhibits hereto
nor any of the documents delivered by or on behalf of Camworks pursuant to
Article VII hereof nor the Camworks Disclosure Schedule, taken as a whole,
contains any untrue statement of a material fact regarding Camworks or its
business or omits to state a material fact necessary to make this Agreement, the
exhibits hereto or any document executed in connection therewith not misleading.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB
Parent and Merger Sub jointly and severally represent and warrant to
Camworks and the Shareholders as of the date hereof, and as of the Closing Date,
as follows:
SECTION 4.1 ORGANIZATION OF PARENT. Parent, Merger Sub and each of the
significant Subsidiaries of Parent is a corporation or other legal entity duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation or organization, has the requisite corporate
or similar power to own, lease and operate its property and to carry on its
business as now being conducted and as proposed to be conducted, and is duly
qualified to do business and is in good standing as a foreign corporation or
other legal entity in each jurisdiction in which the failure to be so qualified
would have a Parent Material Adverse Effect. The term "PARENT MATERIAL ADVERSE
EFFECT" means, for purposes of this Agreement, any change, event or effect that
is, or that would reasonably be expected to be, materially adverse to the
business, assets (including intangible assets), financial condition, results of
operations or prospects of Parent and its Subsidiaries taken as a whole.
SECTION 4.2 CAPITAL STRUCTURE. The authorized capital stock of Parent
consists of (i) 55,000,000 shares of Common Stock, par value $.01 per share,
of which there were 30,029,517 shares issued and outstanding as of December
27, 1999, 5,000,000 shares of Preferred Stock, par value $.01 per share, of
which 350,000 shares have been designated as Series A Junior Participating
Preferred Stock,
<PAGE>
and no shares of Preferred Stock were issued and outstanding as of the date
hereof, and (iii) rights issued pursuant to the Rights Agreement dated September
12, 1994 between the Registrant and Norwest Bank Minnesota, NA, as Rights Agent.
The authorized capital stock of Merger Sub consists of 100 shares of Common
Stock, par value $.01 per share, all of which, as of the date hereof, are issued
and outstanding and are held by Parent. All of the Merger Shares will be, when
issued in accordance with this Agreement, duly authorized, validly issued, fully
paid and nonassessable and not subject to preemptive or similar rights created
by statute, the Certificate of Incorporation or Bylaws of Parent or Articles of
Incorporation or Bylaws of Merger Sub, or any agreement or document to which
Parent or Merger Sub is a party or by which it is bound.
SECTION 4.3 AUTHORITY. (a) Each of Parent and/or Merger Sub has all
requisite corporate power and authority to enter into this Agreement and the
Ancillary Agreements to which each of them are a party and to consummate the
transactions contemplated hereby and thereby. The execution and delivery of
this Agreement and the Ancillary Agreements to which Parent and/or Merger Sub
are 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 Parent and/or Merger Sub. This Agreement has been duly executed and
delivered by each of Parent and/or Merger Sub and the Ancillary Agreements to
which Parent and/or Merger Sub are a party will be duly executed and delivered
by Parent and/or Merger Sub, as applicable, at the Closing. Assuming the due
authorization, execution and delivery of this Agreement and the Ancillary
Agreements by the other parties thereto, this Agreement is, and the Ancillary
Documents executed and delivered by Parent and/or Merger Sub at the Closing will
be, the valid and binding obligations of each of Parent and/or Merger Sub, as
applicable, enforceable in accordance with their respective terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general principles of equity. The execution and delivery of this
Agreement by Parent and/or Merger Sub do not, and the execution and delivery of
the Ancillary Agreements to which Parent and/or Merger Sub are a party will not,
(i) conflict with or violate the Certificate of Incorporation or Bylaws of
Parent or Articles of Incorporation or Bylaws of Merger Sub, (ii) subject to
compliance with the requirements set forth in Section 4.3(b) below, conflict
with or violate any law, rule, regulation, order, judgment or decree applicable
to Parent or any of its Subsidiaries or by which any of their respective
properties is bound or affected or (iii) result in any breach of or constitute a
default (or an event that with notice or lapse of time or both would become a
default) under, or impair Parent's rights or alter the rights or obligations of
any third party under, or give to others any rights of termination, amendment,
acceleration or cancellation of, or result in the creation of a lien or
encumbrance on any of the properties or assets of Parent or any of its
Subsidiaries (including Merger Sub) pursuant to, any note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, franchise or other
instrument or obligation to which Parent or any of its Subsidiaries is a party
or by which Parent or any of its Subsidiaries or its or any of their respective
properties are bound or affected, except, with respect to clauses (ii) and
(iii), for any such conflicts, violations, defaults or other occurrences that
would not, individually or in the aggregate, have a Parent Material Adverse
Effect.
(b) Each consent, approval, order or authorization of, or
registration, declaration or filing with any Governmental Entity required by or
with respect to Parent or Merger Sub in connection with the execution and
delivery of this Agreement or the Registration and Rights Agreement or the
consummation of the transactions contemplated hereby or thereby has been
obtained, except for (i) the filing of the Articles of Merger with the Secretary
of State of Minnesota, (ii) the notification to the NASDAQ Stock Market of the
listing of the Parent Common Stock issuable pursuant to Section 1.6, (iii) such
consents, approvals, orders, authorizations, registrations, declarations and
filings as may be required under applicable federal and state securities laws
and the laws of any foreign country, and (iv) such other
<PAGE>
consents, authorizations, filings, approvals and registrations that, if not
obtained or made, would not, individually or in the aggregate, have a Parent
Material Adverse Effect or a material adverse effect on the ability of Parent or
Merger Sub to consummate the Merger.
SECTION 4.4 SEC FILINGS; PARENT FINANCIAL STATEMENTS. (a) Parent has
filed all forms, reports and documents required to be filed with the SEC since
January 1, 1997 (the "PARENT SEC REPORTS"). As of their respective dates, the
Parent SEC Reports (i) were prepared in accordance with the requirements of the
Securities Act or the Exchange Act, as the case may be, and the rules and
regulations of the SEC thereunder applicable to such Parent SEC Reports and (ii)
did not at the time they were filed (or if amended or superseded by a filing
prior to the date of this Agreement, then on the date of such filing) contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. None of Parent's Subsidiaries is required to file any forms,
reports or other documents with the SEC.
(b) Each of the consolidated financial statements (including, in
each case, any related notes thereto) contained in the Parent SEC Reports (the
"PARENT FINANCIALS") (i) complied as to form in all material respects with the
published rules and regulations of the SEC with respect thereto, (ii) was
prepared in accordance with GAAP applied on a consistent basis throughout the
periods involved (except as may be indicated in the notes thereto or, in the
case of unaudited interim financial statements, as may be permitted by the SEC
on Form 10-Q under the Exchange Act) and (iii) fairly presented, in all material
respects, the consolidated financial position of Parent and its Subsidiaries as
at the respective dates thereof and the consolidated results of its operations
and cash flows for the periods indicated, except that the unaudited interim
financial statements were or are subject to normal and recurring year-end
adjustments which were not, or are not expected to be, material in amount. The
balance sheet of Parent contained in Parent SEC Reports as of December 31, 1998
is hereinafter referred to as the "PARENT BALANCE SHEET." Except as disclosed
in the Parent Financials or obligations under this Agreement, neither Parent nor
any of its Subsidiaries has any liabilities (absolute, accrued, contingent or
otherwise) of a nature required to be disclosed on a balance sheet or in the
related notes to the consolidated financial statements prepared in accordance
with GAAP that are, individually or in the aggregate, material to the business,
results of operations or financial condition of Parent and its Subsidiaries
taken as a whole, except liabilities (x) provided for in the Parent Balance
Sheet, (y) incurred since the date of the Parent Balance Sheet in the ordinary
course of business consistent with past practices, or (z) incurred in connection
with the transactions contemplated hereby.
SECTION 4.5 ABSENCE OF CERTAIN CHANGES OR EVENTS. Since September 30,
1999 to the date of this Agreement, there has not occurred any Parent Material
Adverse Effect, nor (i) any amendment to Parent's Certificate of Incorporation
or Bylaws, (ii) any material change in accounting methods or practices by
Parent, (iii) any material revaluation by Parent or any of its Subsidiaries of
any of its assets, or (iv) any declaration, setting aside, or payment of a
dividend or other distribution with respect to the Parent Common Stock, or
direct or indirect redemption, purchase or other acquisition by Parent of any of
its capital stock (other than in connection with the exercises of stock
options).
SECTION 4.6 LITIGATION. There is no action, suit, proceeding, claim,
arbitration or investigation pending, or as to which Parent or any of its
Subsidiaries has received any notice of assertion nor, to Parent's knowledge, is
there a threatened action, suit, proceeding, claim, arbitration or investigation
against Parent or any of its Subsidiaries that would have a Parent Material
Adverse Effect or that in any manner challenges or seeks to prevent, enjoin,
alter or delay any of the transactions contemplated by this Agreement.
<PAGE>
SECTION 4.7 INTERIM OPERATIONS OF MERGER SUB. Merger Sub was formed
solely for the purpose of engaging in the transactions contemplated by this
Agreement, has engaged in no other business activities and has conducted its
operations only as contemplated by this Agreement.
SECTION 4.8 POOLING LETTER FROM KPMG LLP. Concurrently with the execution
and delivery of this Agreement, Parent has received a letter from KPMG LLP,
addressed to Parent and Camworks, in the form of Exhibit D hereto.
ARTICLE V
CONDUCT OF BUSINESS PENDING THE MERGER
SECTION 5.1 CONDUCT OF BUSINESS BY CAMWORKS PENDING THE MERGER. Camworks
and the Shareholders covenant and agree that, between the date of this Agreement
and the Effective Time, except as Parent shall otherwise agree in advance in
writing, the business of Camworks shall be conducted only in, and Camworks
shall not take any action except in, the ordinary course of business and in a
manner consistent with past practice; and Camworks shall use its reasonable best
efforts to preserve substantially intact its business organization, to keep
available the services of the current officers, employees and consultants of
Camworks and to preserve the current relationships of Camworks with customers,
prospective customers, distributors, dealers, suppliers and other persons with
which Camworks have significant business relations. By way of amplification and
not limitation, except as contemplated by this Agreement, between the date of
this Agreement and the Effective Time, Camworks will not, directly or
indirectly, do any of the following without the prior written consent of Parent:
(a) amend the Articles of Incorporation or Bylaws of Camworks;
(b) issue, sell, pledge, dispose of, grant, encumber, or authorize
issuance, sale, pledge, disposition, grant or encumbrance of (i) any shares of
its capital stock, or any options, warrants, convertible securities or other
rights of any kind to acquire any share its capital stock or any other ownership
interest (including, without limitation, any phantom interest) of Camworks or
(ii) any material assets of Camworks;
(c) declare, set aside, make or pay any dividend or other
distribution, payable in cash, stock, property or otherwise, with respect to any
of its capital stock;
(d) reclassify, combine, split, subdivide or redeem, purchase or
otherwise acquire, directly or indirectly, any of its capital stock;
(e) (i) acquire (including without limitation, by merger,
consolidation, or acquisition of stock or assets) any corporation, partnership,
limited liability company, other business organization or any division thereof,
or any material amount of assets, (ii) incur any indebtedness for borrowed money
(including pursuant to any existing line of credit), issue any debt securities,
assume, guarantee or endorse, or otherwise as an accommodation become
responsible for, the obligations of any person, agree to amend or otherwise
modify in any manner any agreement or instrument pursuant to which Camworks has
incurred indebtedness, or make any loans or advances, (ii) authorize any single
capital expenditure which is in excess of $5,000 or capital expenditures which
are, in the aggregate, in excess of $10,000 for Camworks or (iii) enter into or
amend any contract, agreement, commitment or arrangement with respect
<PAGE>
to any matter set forth in this subsection (e);
(f) increase the compensation payable or to become payable to any
shareholder, officer or any employee with an annual salary in excess of $50,000,
or (except in the ordinary course of business consistent with past practice)
increase the compensation payable to any other employee, or grant any bonus,
severance or termination pay to, or enter into any employment or severance
agreement with any shareholder, director, officer or other employee of Camworks,
or establish, adopt, enter into or amend any collective bargaining, bonus,
profit sharing, thrift, compensation, stock option, restricted stock, pension,
retirement, deferred compensation, employment, termination, severance or other
plan, agreement, trust, fund, policy or arrangement for the benefit of any
director, officer or employee;
(g) change in any material respect (except as required by changes
in United States generally accepted accounting principles which become effective
after the date of this Agreement) any accounting policies;
(h) make any tax election or settle or compromise any material
federal, state, local or foreign income tax liability; or
(i) take any action or agree to take any action that would prevent
Parent from accounting for the business combination to be effected pursuant to
this agreement as a pooling of interest under GAAP.
SECTION 5.2 CONDUCT OF BUSINESS BY PARENT AND CAMWORKS PENDING THE MERGER.
Parent and Camworks covenant and agree that, between the date of this Agreement
and the Effective Time, unless the other shall otherwise agree in writing,
neither Parent nor Camworks shall, directly or indirectly, knowingly take any
action that would be reasonably likely to prevent the Merger from constituting a
transaction qualifying under Section 368(a) of the Code.
ARTICLE VI
ADDITIONAL AGREEMENTS
SECTION 6.1 SHAREHOLDER'S ACTION. The Shareholders shall approve this
Agreement by the unanimous written consent pursuant to Section 302A.441 of the
MBCA.
SECTION 6.2 APPROPRIATE ACTION; CONSENTS; FILINGS. (a) Camworks, Parent
and Merger Sub shall use their reasonable efforts to (i) take, or cause to be
taken, all appropriate action, and do, or cause to be done, all things
reasonably necessary, proper or advisable under applicable Law or otherwise to
consummate and make effective the Merger as promptly as practicable, (ii) obtain
from any Governmental Authorities any consents, licenses, permits, waivers,
approvals, authorizations or orders required to be obtained by Parent or
Camworks or any of Parent's Subsidiaries in connection with the authorization,
execution and delivery of this Agreement and the Ancillary Agreements and the
consummation of the Merger, and (iii) make all necessary filings, and thereafter
make any other required submissions, with respect to this Agreement and the
Ancillary Agreements and the Merger required under (A) the Securities Act and
the Exchange Act, and any other applicable federal or state securities Laws, and
(B) any other applicable Law; provided that Parent, Merger Sub and Camworks
shall cooperate with each other in connection with the making of all such
filings.
<PAGE>
(b) (i) Each of Parent and Camworks shall give (or shall cause its
respective subsidiaries to give) any notices to third parties, and Parent and
Camworks shall use, and cause each of its subsidiaries to use, its reasonable
best efforts to obtain the third party consents (A) which are set forth on
Section 3.4 of the Camworks Disclosure Schedule or (B) required to prevent a
Parent Material Adverse Effect or Camworks Material Adverse Effect from
occurring prior to or after the Effective Time.
(ii) In the event that Parent or Camworks shall fail to obtain any
third party consent described in subsection (b)(i) above, such party shall use
its reasonable efforts, and shall take any such actions reasonably requested by
the other party, to minimize any material adverse effect upon Camworks and
Parent and its subsidiaries, and their respective businesses resulting, or which
could reasonably be expected to result after the Effective Time, from the
failure to obtain such consent.
SECTION 6.3 ACCESS TO INFORMATION; CONFIDENTIALITY. From the date hereof
to the Effective Time, to the extent permitted by applicable Law, Camworks will
provide to Parent (and its officers, directors, employees, accountants,
consultants, legal counsel, agents and other representatives, collectively,
"REPRESENTATIVES") access to all information and documents which Parent may
reasonably request regarding the business, assets, liabilities, employees and
other aspects of Camworks. No such information shall be disclosed to a third
party (other than attorneys and advisers) except as required by law.
SECTION 6.4 NO SOLICITATION OF COMPETING TRANSACTIONS. (a) Camworks and
its Shareholders shall not, directly or indirectly, through any Shareholder,
officer, director, agent or otherwise, enter into, initiate, solicit or
knowingly encourage (including by way of furnishing non-public information or
assistance), or take any other action knowingly to facilitate, any inquiries or
the making of any proposal that constitutes, or may reasonably be expected to
lead to, any Competing Transaction, or enter into or maintain or continue
discussions or negotiate with any person or entity in furtherance of such
inquiries or to obtain a Competing Transaction, or agree to or endorse any
Competing Transaction, or authorize or permit any of the Shareholders, officers,
directors or employees of Camworks or any investment banker or financial
advisor, attorney, accountant or other agent or representative of Camworks to
take any such action, and Camworks and its Shareholders shall notify Parent as
promptly as practicable of all of the relevant details relating to all material
inquiries and proposals which Camworks or any such Shareholder, officer,
director, employee, investment banker, financial advisor, attorney, accountant
or other agent or representative may receive relating to any of such matters and
if such inquiry or proposal is in writing, Camworks and its Shareholders shall
deliver to Parent a copy of such inquiry or proposal.
(b) For purposes of this Agreement "COMPETING TRANSACTION" shall
mean any of the following involving Camworks: (i) any merger, consolidation,
share exchange, business combination, or other similar transaction; (ii) any
sale, lease, exchange, mortgage, pledge, transfer or other disposition of any
material portion of the assets of Camworks, in a single transaction or series of
transactions; or (iii) any purchase of any capital stock of Camworks.
SECTION 6.5 NMS LISTING. Parent shall use its best efforts to cause the
shares of Parent Common Stock issued pursuant to Section 1.6 to be approved for
quotation on the NASDAQ subject to official notice of issuance.
SECTION 6.6 REGISTRATION RIGHTS. The shares of Parent Common Stock issued
pursuant to Section 1.6 will not initially be registered under the Securities
Act and will be "restricted securities", as defined under Rule 144 promulgated
pursuant to the Securities Act. Accordingly, Parent shall, pursuant to the
terms of the Registration and Rights Agreement in the form attached hereto as
Exhibit E (the "REGISTRATION AND RIGHTS AGREEMENT"), use its best efforts to
register for resale the Parent Common Stock
<PAGE>
set forth in the Registration and Rights Agreement, so long as all audited
financial statements of Camworks required to be included in such registration
statement are available.
SECTION 6.7 FEES AND EXPENSES. Whether or not the Merger is consummated,
all fees and expenses incurred in connection with the negotiation of this
Agreement and the transactions contemplated hereby shall be paid by the party
incurring such fees.
SECTION 6.8 PUBLIC ANNOUNCEMENTS. Parent and Camworks shall consult with
each other before issuing any press release or otherwise making any public
statements with respect to this Agreement and shall not issue any such press
release or make any such public statement without the prior consent of the other
(which consent shall not be unreasonably withheld), except as may be required by
law or any listing agreement with NASDAQ, to which Parent is a party.
SECTION 6.9 LEGAL REQUIREMENTS. Parent will use its commercially
reasonable efforts to take such steps as may be necessary to comply with the
securities and blue sky laws of all jurisdictions which are applicable to the
issuance of Parent Common Stock pursuant hereto.
SECTION 6.10 AFFILIATES. So that the Merger will qualify for pooling of
interests treatment under GAAP, shares of Parent Common Stock issued to the
Shareholders shall not be transferable until such time as financial results
covering at least 30 days of combined operations of Parent and such party have
been published within the meaning of Section 201.01 of the SEC's Codification of
Financial Reporting Policies except to the extent permitted by, and in
accordance with, Accounting Series Release 135 and Staff Accounting Bulletins 65
and 76.
SECTION 6.11 AUDITED FINANCIAL STATEMENTS. Each of the Shareholders shall
use its best efforts to cooperate and assist in the preparation of any audited
financial statements of Camworks required by the rules and regulations of the
SEC, including executing standard representation letters required by any firm of
independent certified public accountants.
SECTION 6.12. TAX RETURNS. The Shareholders shall prepare and file all
tax returns required to be filed by Camworks for all periods prior to the
Effective Time but shall allow Parent reasonable opportunity to review and
comment on such tax returns prior to filing. All such tax returns shall be
prepared in accordance with applicable law and, to the extent not inconsistent
therewith, in accordance with the past practice of Camworks and in a manner that
does not distort taxable income (E.G., by deferring income or accelerating
deductions).
SECTION 6.13. CAMWORKS GUARANTEES. Parent shall cooperate with the
Shareholders to obtain the release of the Shareholders from any guarantees given
by the Shareholders with respect to real property leases and personal property
leases disclosed to Parent in this Agreement or the Camworks Disclosure
Schedule, including by substituting a Parent guaranty to replace the Shareholder
guaranty in forms reasonably acceptable to the Parent. Notwithstanding the
foregoing, the Shareholders shall bear the primary burden to negotiate such
releases with the applicable third parties.
SECTION 6.14. TAX REORGANIZATION. Parent, Merger Sub, the Surviving
Corporation and the Shareholders shall take all reasonable steps necessary for
the Merger to qualify as a reorganization within the meaning of Section 368 of
the Code, and none of Parent, Merger Sub, the Surviving Corporation or the
Shareholders shall omit from taking any reasonable action which will preclude
such tax treatment.
<PAGE>
ARTICLE VII
CLOSING
SECTION 7.1 CONDITIONS TO THE OBLIGATIONS OF EACH PARTY. The obligations of
Camworks, Parent and Merger Sub to consummate the Merger are subject to the
satisfaction of the following conditions:
(a) this Agreement shall have been adopted by the unanimous written
consent of the Shareholders pursuant to Section 302A.441 of the MBCA; and
(b) no Governmental Entity or court of competent jurisdiction located
or having jurisdiction in the United States shall have enacted, issued,
promulgated, enforced or entered any Law, rule, regulation, executive order or
order which is then in effect and has the effect of making the Merger illegal or
otherwise prohibiting consummation of the Merger.
(c) no third party or governmental entity shall have threatened or
commenced any action seeking to delay or prevent the transactions to be
consummated hereby or seeking damages or other relief by claiming the
transactions contemplated hereby or the prior negotiations thereof violate any
agreement to which any party hereto is bound or subject to or purportedly bound
or subject to.
SECTION 7.2 CONDITIONS TO THE OBLIGATIONS OF PARENT AND MERGER SUB. The
obligations of Parent and Merger Sub to consummate the Merger are subject to the
satisfaction of the following further conditions:
(a) each of the representations and warranties of Camworks and the
Shareholders contained in this Agreement shall be true and correct as of the
Effective Time as though made on and as of the Effective Time (except to the
extent expressly made as of an earlier date, in which case as of such date), and
Parent shall have received a certificate of an officer of Camworks and each of
the Shareholders to such effect;
(b) Camworks and the Shareholders shall have performed or complied in
all material respects with all agreements and covenants required by this
Agreement to be performed or complied with by it on or prior to the Effective
Time, and Parent shall have received a certificate of an officer of Camworks and
each of the Shareholders to that effect;
(c) Parent shall have received the pooling letter agreements referred
to in Section 2.8(b), dated the Closing Date, from each of the Shareholders;
(d) Parent shall have received written confirmation from KPMG LLP,
dated the Closing Date (if different from the execution date) and addressed to
Parent, of the letter referred to in Section 4.8;
(e) The Registration and Rights Agreement and the Escrow Agreement
each shall have been executed and delivered by each of the Shareholders and the
Shareholder Representative, and in the case of the Escrow Agreement, the Escrow
Agent, and shall be in full force and effect;
(f) The Shareholders shall have executed employment agreements
substantially in the form of Exhibits F-1, F-2 and F-3, respectively, each
including a non-competition agreement
<PAGE>
substantially in the form of Exhibit F-4;
(g) The Board of Directors of Camworks shall have approved this
transaction by unanimous written consent and Camworks shall have delivered a
copy thereof;
(h) Camworks shall have delivered a copy of the unanimous written
consent referred to in Section 7.1(a);
(i) all third party consents and waivers required to be obtained in
connection with the execution, delivery and performance of this Agreement or the
consummation of the transactions contemplated hereby shall have been obtained;
(j) parent shall have received resignation letters from each of the
members of the board of directors of Camworks, which resignations shall be
effective as of the effective time of the Merger;
(k) no person shall have exercised or purported to have exercised
dissenter's rights under the MBCA and no person other than the Shareholders
shall have claimed an interest in the equity or assets of Camworks;
(l) [Reserved]
(m) amounts outstanding under the Camworks' line of credit shall not
exceed $5,000;
(n) there shall not have occurred any events or circumstances since
the date of this Agreement that would have a Camworks Material Adverse Effect;
(o) Parent shall have received the lock-up agreements referred to in
Section 2.10(b), dated the Closing Date, from each of Mr. Cameron and Mr.
Lundberg.
SECTION 7.3 CONDITIONS TO THE OBLIGATIONS OF CAMWORKS. The obligation of
Camworks to consummate the Merger is subject to the satisfaction of the
following further conditions:
(a) each of the representations and warranties of Parent and Merger
Sub contained in this Agreement shall be true and correct as of the Effective
Time as though made on and as of the Effective Time (except to the extent
expressly made as of an earlier date, in which case as of such date) and
Camworks shall have received a certificate of an officer of Parent and Merger
Sub to such effect;
(b) each of Parent and Merger Sub shall have performed or complied in
all material respects with all agreements and covenants required by this
Agreement to be performed or complied with by it on or prior to the Effective
Time, and Camworks shall have received a certificate of an officer of Parent and
Merger Sub to that effect;
(c) The Board of Directors of Parent and Merger Sub shall have
approved this action and delivered copies thereof;
(d) The Registration and Rights Agreement and the Escrow Agreement
each shall have been executed and delivered by Parent, and in the case of the
Escrow Agreement, the Escrow Agent, and shall be in full force and effect;
<PAGE>
(e) there shall not have occurred any events or circumstances since
the date of this Agreement that would have a Parent Material Adverse Effect.
ARTICLE VIII
TERMINATION AND AMENDMENT
SECTION 8.1 TERMINATION. This Agreement may be terminated and the Merger
may be abandoned at any time prior to the Effective Time, notwithstanding any
requisite approval and adoption of this Agreement, as follows:
(a) by mutual written consent duly authorized by the Boards of
Directors of each of Parent, Merger Sub and Camworks;
(b) by either Parent or Camworks, if the Effective Time shall not have
occurred on or before January 1, 2000 (the "DROP DEAD DATE"); provided, however,
that the right to terminate this Agreement under this Section 8.1(b) shall not
be available to any party whose material breach of a representation or warranty
of covenant has been the cause of, or resulted in, the failure of the Effective
Time to occur by such time;
(c) by Camworks, upon a material breach of any representation,
warranty, covenant or agreement on the part of Parent or Merger Sub set forth in
this Agreement, or if any representation or warranty of Parent shall have become
untrue, in either case such that the conditions set forth in Section 7.3(a) or
(b) would not be satisfied (a "TERMINATING PARENT BREACH"); provided, however,
that, if such Terminating Parent Breach is curable by Parent through the
exercise of its best efforts and for so long as Parent continues to exercise
such best efforts, Camworks may not terminate this Agreement under this Section
8.1(e);
(d) by Parent, upon breach of any representation, warranty, covenant
or agreement on the part of Camworks or the Shareholders set forth in this
Agreement, or if any representation or warranty of Camworks or the Shareholders
shall have become untrue, in either case such that the conditions set forth in
Sections 7.2(a) or (b) would not be satisfied ("TERMINATING CAMWORKS BREACH");
provided, however, that, if such Terminating Camworks Breach is curable by
Camworks or the Shareholders through best efforts and for so long as Camworks
and the Shareholders continue to exercise such best efforts, Parent may not
terminate this Agreement under this Section 8.1(f);
(e) by either Parent or Camworks, if any Governmental Entity shall
have issued an order or taken any other action permanently restraining,
enjoining or otherwise prohibiting the transactions contemplated by this
Agreement, and such order or other action shall have become final and
nonappealable.
SECTION 8.2 EFFECT OF TERMINATION. Subject to Section 11.1 hereof, in the
event of termination of this Agreement pursuant to Section 8.1, this Agreement
shall forthwith become void, there shall be no liability under this Agreement on
the part of Parent, Merger Sub or Camworks or any of their respective officers
or directors and all rights and obligations of each party hereto shall cease;
provided, however, that nothing herein shall relieve any party from liability
for the willful breach of any of its representations, warranties, covenants or
agreements set forth in this Agreement.
<PAGE>
SECTION 8.3 AMENDMENT. This Agreement may be amended by the parties hereto
by action taken by or on behalf of their respective Boards of Directors at any
time prior to the Effective Time; provided, however, that, after the approval
and adoption of this Agreement by the Shareholders of Camworks, there shall not
be any amendment that by Law requires further approval by the Shareholders of
Camworks without the further approval of such stockholders. This Agreement may
not be amended except by an instrument in writing signed by the parties hereto.
SECTION 8.4 WAIVER. At any time prior to the Effective Time, any party
hereto may (a) extend the time for the performance of any obligation or other
act of any other party hereto, (b) waive any inaccuracy in the representations
and warranties contained herein or in any document delivered pursuant hereto and
(c) waive compliance with any agreement or condition contained herein. Any such
extension or waiver shall be valid if set forth in an instrument in writing.
ARTICLE IX
INDEMNIFICATION AND ESCROW
SECTION 9.1 INDEMNIFICATION BY CAMWORKS' SHAREHOLDERS. From and after the
Closing, each Shareholder shall jointly and severally indemnify Parent and the
Surviving Corporation and any employee, director, officer or agent (the "PARENT
INDEMNIFIED PARTIES") of each of them against, hold each of them harmless from,
and reimburse each of them for any claim, costs, loss, liability or expense
(including reasonable attorneys' fees and expenses) or other damage (including,
without limitation, expectation, actual, punitive and consequential damages)
(collectively, "DAMAGES") arising, directly or indirectly, from or in connection
with: (a) any inaccuracy in any of the warranties or representations of Camworks
or any Shareholder in this Agreement (other than the Several Representations,
for which only the Shareholder making such representation is liable), (b) any
failure by Camworks or any Shareholder to perform or comply with any covenant or
obligation in this Agreement, or (c) any Third Party Claim (as defined below)
relating to an inaccuracy or failure referred to in clause (a) or (b) above,
including any claim to ownership of shares of Camworks Common Stock or proceeds
thereof by any spouse or former spouse of a Shareholder.
SECTION 9.2 INDEMNIFICATION BY PARENT. From and after the Closing, the
Parent shall indemnify each Shareholder ("CAMWORKS INDEMNIFIED PARTIES")
against, and hold each of them harmless from, and reimburse each of them for any
Damages arising, directly or indirectly, from or in connection with: (a) any
inaccuracy in any of the warranties or representations of Parent and Merger Sub
in this Agreement, (b) any failure by Parent or Merger Sub to perform or comply
with any covenant or obligation in this Agreement, or (c) any Third Party Claim
relating to an inaccuracy or failure referred to in clause (a) or (b) above. Any
Parent Indemnified Party or Camworks Indemnified Party entitled to
indemnification under this Article IX is referred to herein as an "INDEMNIFIED
PARTY", and any party against whom such indemnification is sought is referred to
as an "INDEMNIFYING PARTY."
SECTION 9.3 PROCEDURE FOR THIRD PARTY CLAIMS. Promptly after receipt by an
Indemnified Party of notice of the commencement of any action or demand or claim
by a third party (a "THIRD PARTY CLAIM") which may give rise to Damages, such
Indemnified Party shall, if a claim in respect thereof is to be made against a
Shareholder, give notice to the Shareholder Representative, and if such claim is
to be made against Parent, give notice to Parent, of its assertion of such claim
for indemnification and provide reasonable detail with respect thereto. Failure
so to notify the Indemnifying Party shall not relieve any Indemnifying Party of
any liability that it may have to any Indemnified Party except to the extent
that the
<PAGE>
defense of such action or Third Party Claim is materially prejudiced thereby. If
any such action shall be brought or a Third Party Claim shall be asserted
against an Indemnified Party and the Indemnified Party shall give notice to the
Indemnifying Party of the commencement or assertion thereof, the Indemnifying
Party (which in the case of a claim against the Shareholders, shall be the
Shareholder Representative) shall be entitled, at its own expense (and with
respect to the Shareholders, without recourse to the Escrowed Property), to
participate therein and, to the extent that it shall wish, to assume the defense
thereof with counsel reasonably satisfactory to such Indemnified Party. If an
Indemnifying Party (which in the case of the Shareholders, shall be the
Shareholder Representative) receives notice of any action or Third Party Claim,
it shall promptly notify the Indemnified Party as to whether, at it expense (and
with respect to the Shareholders, without recourse to the Escrowed Property), it
intends to control the defense thereof. If the Indemnifying Party defends an
action, it shall have full control over the litigation, including settlement and
compromise thereof, subject only to the following: no compromise or settlement
thereof may be effected without the Indemnified Party's consent (which shall not
be unreasonably withheld) unless (i) there is no finding or admission of any
violation of law and no effect on any other claims that may be made against the
Indemnified Party and (ii) the soe relief provided is monetary damages that are
paid in full by the Indemnifying Party. If notice is given to the Indemnifying
Party of the commencement of any action and it does not, within 20 days after
the Indemnified Party's notice is given, give notice to the Indemnified Party of
its election to assume the defense thereof, the Indemnified Party shall have
full control over the litigation, including settlement and compromise thereof.
SECTION 9.4 PROCEDURES RELATED TO OTHER CLAIMS. In the event an Indemnified
Party shall have a claim against an Indemnifying Party that does not involve a
Third Party Claim being asserted against or sought to be collected from such
Indemnified Party, the Indemnified Party shall deliver notice of such claim with
reasonable promptness to the Indemnifying Party. The failure by any Indemnified
Party to so notify an Indemnifying Party shall not relieve the Indemnifying
Party from any liability which it may have to the Indemnified Party, except to
the extent that the Indemnifying Party has been actually prejudiced by such
failure.
SECTION 9.5 INDEMNITY PERIOD. No claim for indemnification under Article IX
of this Agreement may be made unless notice is given by the Indemnified Party to
the Indemnifying Party on or prior to the earlier of March 31, 2001 and the date
Parent shall have filed its Form 10-K for the year ended December 31, 2000,
except for claims of breaches of the representations and warranties in (i)
Section 3.14, for which a notice of claim must be made within six years of the
Closing Date and (ii) Sections 2.1, 2.2, 2.3, 2.4, 2.5, 3.1, 3.2, 3.3, 3.4, 3.7,
3.23, 4.1, 4.2 and 4.3, for which a notice of claim must be made within the
applicable statutes of limitation related to any such claim.
SECTION 9.6 BASKET; CAP. (a) The Shareholders shall not be liable to the
Parent Indemnified Parties, unless and until the aggregate claims by the Parent
Indemnified Parties exceed $50,000, and then only to the extent such claims
exceed $50,000. Parent shall not be liable to the Camworks Indemnified Parties,
unless and until the aggregate claims by the Camworks Indemnified Parties exceed
$50,000, and then only to the extent such claims exceed $50,000.
(b) The Shareholders shall not be liable to the Parent Indemnified Parties
to the extent aggregate claims indemnified hereunder by the Shareholders exceed
25% of the Aggregate Merger Consideration. In addition, no Shareholder shall be
liable for more than the pro-rata share (based on the Allocation Ratio) of the
dollar value of the Aggregate Merger Consideration received by such Shareholder.
"AGGREGATE MERGER CONSIDERATION" means the product of the number of shares of
Parent Common Stock issued to the Shareholders pursuant to Section 1.6(a)
multiplied by the Average Parent Stock Price. The limit set forth in this
paragraph shall not apply to Damages resulting from (i) breaches
<PAGE>
of the representations and warranties set forth in Sections 2.1, 2.2, 2.3, 2.4,
2.5, 3.1, 3.2, 3.3, 3.4 or 3.7; (ii) breaches of the representations and
warranties set forth in Section 3.23 if Camworks or any Shareholder knew or
should have known about the facts giving rise to such Damages; or (iii)
Camworks' or any Shareholder's fraud or willful or intentional misrepresentation
or intentional or willful breach.
(c) Parent shall not be liable to the Camworks Indemnified Parties to the
extent aggregate claims indemnified hereunder by Parent exceed 25% of the
Aggregate Merger Consideration. The limit set forth in this paragraph shall not
apply to Damages resulting from (i) breaches of the representations and
warranties set forth in Sections 4.1, 4.2 or 4.3 or (ii) Parent's fraud or
willful or intentional misrepresentation or intentional or willful breach.
SECTION 9.7 SATISFACTION OF INDEMNIFICATION CLAIM. In the event any
Shareholder shall have any liability for indemnification or otherwise to any
Indemnified Party under this Article IX, the liability may be satisfied first
with recourse against the Escrowed Property, then, to the extent that the
aggregate amount of outstanding indemnification claims by Parent Indemnified
Parties against the Shareholders exceeds the value of the Escrowed Property,
with recourse against the Shareholders directly.
SECTION 9.8 THE SHAREHOLDER REPRESENTATIVE.
(a) The Shareholder Representative has been authorized, designated and
appointed to act as the sole and exclusive agent, attorney-in-fact and
representative of each of the Shareholders by the consent of the Shareholders
and as such has been authorized and directed to (i) take any and all actions
(including without limitation executing and delivering any documents, incurring
any costs and expenses for the account of the Shareholders and making any and
all determinations required by this Agreement) which may be required in carrying
out his duties under this Agreement, (ii) exercise such other rights, power and
authority as are authorized, delegated and granted to the Shareholder
Representative under this Agreement in connection with the transactions
contemplated hereby, and (iii) exercise such rights, power and authority as are
incidental to the foregoing. Any such actions taken, exercises of rights, power
or authority, and any decision or determination made by the Shareholder
Representative consistent therewith shall be absolutely and irrevocably binding
on each Shareholder as if such Shareholder personally had taken such action,
exercised such rights, power or authority or made such decision or determination
in such Shareholder's individual capacity.
(b) The Shareholder Representative shall have no duties towards the
Shareholders, and shall not incur any liability to the Shareholders, and the
Shareholders shall have no claims, including those that may arise in the future,
against the Shareholder Representative for any action or inaction taken or not
taken by him in connection with his service as the Shareholder Representative,
except to the extent that such action or inaction shall have been held by a
court of competent jurisdiction to constitute willful misconduct.
(c) Each of the Shareholders hereby appoints Timothy A. Cameron as the
Shareholder Representative, and the Shareholder Representative hereby accepts
such appointment.
ARTICLE X
DISPUTE RESOLUTION
SECTION 10.1 INITIAL MEETING. In the event that there is a dispute arising
out of or relating to
<PAGE>
this Agreement, the parties shall attempt in good faith to resolve such disputes
promptly by negotiation between the parties. Any party may give the other
parties written notice that a dispute exists (a "NOTICE OF DISPUTE"). The Notice
of Dispute shall include a statement of such party's position. Within ten (10)
days of the delivery of the Notice of Dispute, the parties shall meet at a
mutually acceptable time and place, and thereafter as long as they reasonably
deem necessary, to attempt to resolve the dispute. All documents and other
information or data on which each party relies concerning the dispute shall be
furnished or made available on reasonable terms to the other party at or before
the first meeting of the parties as provided by this Section 10.1.
SECTION 10.2 MEDIATION. If the dispute has not been resolved by negotiation
within thirty (30) days of the delivery of a Notice of Dispute, or if the
parties have failed to meet within ten (10) days of the Notice of Dispute, the
parties shall endeavor to settle the dispute by mediation under the then current
CPR Model Mediation Procedure for Business Disputes. Unless otherwise agreed,
the parties shall select a mediator from the CPR Panels of Neutrals and shall
notify CPR to initiate the selection process.
SECTION 10.3 BINDING ARBITRATION. Any controversy or claim arising out of
or relating to this Agreement or any agreement or document in connection
therewith, the breach, termination or validity thereof, or the transactions
contemplated herein (including any question arising as to whether or not any
dispute falls within the terms of this Section or the selection of arbitrators)
if not settled by negotiation or mediation as provided in Section 10.1 and
Section 10.2, shall be settled by arbitration in Minneapolis, Minnesota, in
accordance with the CPR Rules for Non-Administrative Arbitration of Business
Disputes by three arbitrators. Any party may initiate arbitration from and after
60 days following the delivery of a Notice of Dispute if the dispute has not
then been settled by negotiation or mediation. The arbitrators shall be
appointed by the parties as provided by CPR Rule 5, Selection of Arbitrators.
The arbitration procedure shall be governed by the United States Arbitration
Act, 9 U.S.C. Section 1-16, and the award rendered by the arbitrators shall be
final and binding on the parties and may be entered in any court having
jurisdiction thereof.
SECTION 10.4 DISCOVERY. Each party shall have discovery rights as provided
by the Federal Rules of Civil Procedure; provided, however, that all such
discovery shall be commenced and concluded within ninety (90) days of the
initiation of arbitration.
SECTION 10.5 EXPEDITIOUS PROCEEDINGS. It is the intent of the parties that
any arbitration shall be concluded as quickly as reasonably practicable. Unless
the parties otherwise agree, once commenced, the hearing on the disputed matters
shall be held four days a week until concluded, with each hearing date to begin
at 9:00 a.m. and to conclude at 5:00 p.m. The arbitrators shall use all
reasonable efforts to issue the final award or awards within a period of five
(5) business days after closure of the proceedings. Failure of the arbitrators
to meet the time limits of this Section 10.5 shall not be a basis for
challenging the award.
SECTION 10.6 ARBITRATION COSTS. Each party shall bear its own costs in
connection with the arbitration and shall share equally the fees and expenses of
the arbitrators.
SECTION 10.7 ENFORCEMENT OF AWARDS. Each party agrees that any legal
proceeding instituted to enforce an arbitration award hereunder will be brought
in a court of competent jurisdiction (either state or federal) in Minneapolis,
Minnesota and hereby submits to personal jurisdiction therein and irrevocably
waives any objection as to venue therein, and further agrees not to plead or
claim in any such court that any such proceeding has been brought in an
inconvenient forum.
<PAGE>
SECTION 10.8 EQUITABLE RELIEF. Nothing herein shall be construed to prevent
any party from seeking equitable relief in any court of competent jurisdiction
to restrain or prohibit any breach or threatened breach of any covenant of the
parties set forth in this Agreement, whether or not the parties have first
sought to resolve the dispute through negotiation, mediation or arbitration
pursuant to this Article X.
ARTICLE XI
GENERAL PROVISIONS
SECTION 11.1 REPRESENTATIONS, WARRANTIES AND AGREEMENTS. The
representations, warranties and agreements in this agreement and in any
certificate delivered pursuant hereto by any person shall survive the Closing.
SECTION 11.2 NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed given if delivered personally or by commercial
delivery service, or sent via facsimile (receipt confirmed) to the parties at
the following addresses or facsimile numbers (or at such other address or
facsimile numbers for a party as shall be specified by like notice):
(a) if to Parent or Merger Sub, to:
Zamba Corporation
7301 Ohms Lane, Suite 200
Minneapolis, MN 55439
Facsimile: (612) 832-9383
with a copy at the same address or facsimile to the attention of the
General Counsel.
(b) if to Camworks, any of the Shareholders, or the Shareholder
Representative, to:
Timothy A. Cameron
12855 Denmark Avenue
Apple Valley, MN 55124
with a copy to:
Daniel R. Tenenbaum
Gray, Plant, Mooty, Mooty & Bennett, P.A.
3400 City Center
33 South Sixth Street
Minneapolis, MN 55402-3796
Facsimile: (612) 343-2800
SECTION 11.3 INTERPRETATION. When a reference is made in this Agreement to
Schedules and Exhibits, such reference shall be to a Schedule or Exhibit to this
Agreement unless otherwise indicated. 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
<PAGE>
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. When reference is made herein to
"the business of" an entity, such reference shall be deemed to include the
business of all direct and indirect subsidiaries of such entity.
SECTION 11.4 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. Signatures delivered by facsimile
shall be binding to the same extent as originals.
SECTION 11.5 ENTIRE AGREEMENT. This Agreement and the documents and
instruments and other agreements among the parties hereto as contemplated by or
referred to herein, including the Camworks Disclosure Schedule (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, and (b) are not
intended to confer upon any other person any rights or remedies hereunder,
except as set forth herein.
SECTION 11.6 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.
SECTION 11.7 OTHER REMEDIES; SPECIFIC PERFORMANCE. 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. The parties
hereto agree that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that the
parties shall be entitled to an injunction or injunctions to prevent breaches of
this Agreement and to enforce specifically the terms and provisions hereof in
any court of the United States or any state having jurisdiction, this being in
addition to any other remedy to which they are entitled at law or in equity.
SECTION 11.8 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Minnesota, regardless of
the laws that might otherwise govern under applicable principles of conflicts of
law thereof.
SECTION 11.9 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 11.10 ASSIGNMENT. No party may assign either this Agreement or any
of its rights, interests, or obligations hereunder without the prior written
approval of the other parties, which approval shall not be unreasonably withheld
or delayed.
<PAGE>
[Remainder of page intentionally left blank]
<PAGE>
IN WITNESS WHEREOF, Parent, Merger Sub, Camworks, the Shareholders and the
Shareholder Representative have duly executed this Agreement and Plan of
Reorganization, all as of the date first written above.
ZAMBA CORPORATION
CAMWORKS, INC.
By /s/ Paul Edelhertz
------------------------
Name: Paul Edelhertz By /s/ Timothy A. Cameron
Title: President and CEO -----------------------------------
Name: Tim A. Cameron
Title: President and CEO
ZCA CORP. SHAREHOLDERS:
By /s/ Paul Edelhertz /s/ Timothy A.Cameron
------------------------ -------------------------------------
Name: Paul Edelhertz Name: Timothy A. Cameron
Title: President and CEO Address: 12855 Denmark Avenue
Apple Valley, MN 55124
/s/ Paul R. Lundberg
-------------------------------------
Name: Paul R. Lundberg
Address: 3648 Dunbar Knoll
Brooklyn Park, MN 55443
/s/ Scott R. Owens
-------------------------------------
Name: Scott R. Owens
Address: 1002 Danbury Court
Eagan, MN 55123
SHAREHOLDER REPRESENTATIVE:
/s/ Timothy A. Cameron
-------------------------------------
Name: Timothy A. Cameron
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C>
ARTICLE I THE MERGER 1
SECTION 1.1 THE MERGER 1
SECTION 1.2 EFFECTIVE TIME; CLOSING 2
SECTION 1.3 EFFECT OF THE MERGER 2
SECTION 1.4 CERTIFICATE OF INCORPORATION; BYLAWS 2
SECTION 1.5 DIRECTORS AND OFFICERS 2
SECTION 1.6 EFFECT ON CAPITAL STOCK 2
SECTION 1.7 DELIVERY OF PARENT SHARES 4
SECTION 1.8 ESCROWED SHARES 4
SECTION 1.9 NO FRACTIONAL SHARES. 4
SECTION 1.10 EFFECT OF FAILURE TO DELIVER CAMWORKS COMMON STOCK 4
SECTION 1.11 DISTRIBUTIONS WITH RESPECT TO UNEXCHANGED SHARES. 5
SECTION 1.12 TRANSFERS OF OWNERSHIP. 5
SECTION 1.13 NO FURTHER OWNERSHIP RIGHTS IN CAMWORKS COMMON STOCK 5
SECTION 1.14 LOST, STOLEN OR DESTROYED CERTIFICATES 5
SECTION 1.15 TAX CONSEQUENCES 5
SECTION 1.16 TAKING OF NECESSARY ACTION; FURTHER ACTION 6
SECTION 1.17 LEGENDS ON SHARES 6
SECTION 1.18 SHAREHOLDER CONTROL AGREEMENT; EMPLOYMENT AGREEMENTS 6
ARTICLE II REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS 6
SECTION 2.1 SHARE OWNERSHIP 7
SECTION 2.2 LEGAL POWER; ORGANIZATION; QUALIFICATION OF SHAREHOLDERS 7
SECTION 2.3 BINDING AGREEMENT 7
SECTION 2.4 NO SHAREHOLDER CONFLICT OR DEFAULT 7
</TABLE>
<PAGE>
<TABLE>
<S> <C>
SECTION 2.5 OWNERSHIP AND POSSESSION OF SHARES 8
SECTION 2.6 DISSENTER'S RIGHTS 8
SECTION 2.7 [Reserved] 8
SECTION 2.8 ACCOUNTING MATTERS 8
SECTION 2.9 INVESTMENT REPRESENTATIONS 8
SECTION 2.10 RESTRICTIONS ON TRANSFER 9
SECTION 2.11 INVESTIGATION 9
ARTICLE III REPRESENTATIONS AND WARRANTIES OF CAMWORKS 9
SECTION 3.1 ORGANIZATION OF CAMWORKS 9
SECTION 3.2 CAMWORKS CAPITAL STRUCTURE 10
SECTION 3.3 OBLIGATIONS WITH RESPECT TO CAPITAL STOCK 10
SECTION 3.4 AUTHORITY 11
SECTION 3.5 CAMWORKS FINANCIAL STATEMENTS 12
SECTION 3.6 ABSENCE OF CERTAIN CHANGES OR EVENTS 12
SECTION 3.7 TAXES 14
SECTION 3.8 RESTRICTIONS ON BUSINESS ACTIVITIES 16
SECTION 3.9 TITLE TO PROPERTIES; ABSENCE OF LIENS AND ENCUMBRANCES 16
SECTION 3.10 INTELLECTUAL PROPERTY 17
SECTION 3.11 COMPLIANCE; PERMITS; RESTRICTIONS 19
SECTION 3.12 LITIGATION 19
SECTION 3.13 BROKERS' AND FINDERS' FEES; TRANSACTION EXPENSES 19
SECTION 3.14 EMPLOYEE BENEFITS 20
SECTION 3.15 EMPLOYMENT MATTERS 21
SECTION 3.16 ENVIRONMENTAL MATTERS 22
SECTION 3.17 AGREEMENTS, CONTRACTS AND COMMITMENTS 22
</TABLE>
<PAGE>
<TABLE>
<S> <C>
SECTION 3.18 ACCOUNTING MATTERS 24
SECTION 3.19 ENTIRE BUSINESS 24
SECTION 3.20 CHANGE IN CONTROL 24
SECTION 3.21 INSURANCE 24
SECTION 3.22 BANK ACCOUNTS 24
SECTION 3.23 PRIOR TRANSACTIONS 24
SECTION 3.24 OTHER 24
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB 25
SECTION 4.1 ORGANIZATION OF PARENT 25
SECTION 4.2 CAPITAL STRUCTURE 25
SECTION 4.3 AUTHORITY 25
SECTION 4.4 SEC FILINGS; PARENT FINANCIAL STATEMENTS 26
SECTION 4.5 ABSENCE OF CERTAIN CHANGES OR EVENTS 27
SECTION 4.6 LITIGATION 27
SECTION 4.7 INTERIM OPERATIONS OF MERGER SUB 27
SECTION 4.8 POOLING LETTER FROM KPMG LLP 28
ARTICLE V CONDUCT OF BUSINESS PENDING THE MERGER 28
SECTION 5.1 CONDUCT OF BUSINESS BY CAMWORKS PENDING THE MERGER 28
SECTION 5.2 CONDUCT OF BUSINESS BY PARENT AND CAMWORKS PENDING THE
MERGER 29
ARTICLE VI ADDITIONAL AGREEMENTS 29
SECTION 6.1 SHAREHOLDER'S ACTION 29
SECTION 6.2 APPROPRIATE ACTION; CONSENTS; FILINGS 30
SECTION 6.3 ACCESS TO INFORMATION; CONFIDENTIALITY 30
SECTION 6.4 NO SOLICITATION OF COMPETING TRANSACTIONS 30
</TABLE>
<PAGE>
<TABLE>
<S> <C>
SECTION 6.5 NMS LISTING 31
SECTION 6.6 REGISTRATION RIGHTS 31
SECTION 6.7 FEES AND EXPENSES 31
SECTION 6.8 PUBLIC ANNOUNCEMENTS 31
SECTION 6.9 LEGAL REQUIREMENTS 31
SECTION 6.10 AFFILIATES 31
SECTION 6.11 AUDITED FINANCIAL STATEMENTS 32
SECTION 6.12. TAX RETURNS. 32
SECTION 6.13. CAMWORKS GUARANTEES. 32
SECTION 6.14. TAX REORGANIZATION. 32
ARTICLE VII CLOSING 32
SECTION 7.1 CONDITIONS TO THE OBLIGATIONS OF EACH PARTY 32
SECTION 7.2 CONDITIONS TO THE OBLIGATIONS OF PARENT AND MERGER SUB 33
SECTION 7.3 CONDITIONS TO THE OBLIGATIONS OF CAMWORKS 34
ARTICLE VIII TERMINATION AND AMENDMENT 35
SECTION 8.1 TERMINATION. 35
SECTION 8.2 EFFECT OF TERMINATION 35
SECTION 8.3 AMENDMENT 36
SECTION 8.4 WAIVER 36
ARTICLE IX INDEMNIFICATION AND ESCROW 36
SECTION 9.1 INDEMNIFICATION BY CAMWORKS' SHAREHOLDERS. 36
SECTION 9.2 INDEMNIFICATION BY PARENT. 36
SECTION 9.3 PROCEDURE FOR THIRD PARTY CLAIMS. 37
SECTION 9.4 PROCEDURES RELATED TO OTHER CLAIMS. 37
SECTION 9.5 INDEMNITY PERIOD 37
</TABLE>
<PAGE>
<TABLE>
<S> <C>
SECTION 9.6 BASKET; CAP. 38
SECTION 9.7 SATISFACTION OF INDEMNIFICATION CLAIM 38
SECTION 9.8 THE SHAREHOLDER REPRESENTATIVE. 38
ARTICLE X DISPUTE RESOLUTION 39
SECTION 10.1 INITIAL MEETING 39
SECTION 10.2 MEDIATION 39
SECTION 10.3 BINDING ARBITRATION 40
SECTION 10.4 DISCOVERY 40
SECTION 10.5 EXPEDITIOUS PROCEEDINGS 40
SECTION 10.6 ARBITRATION COSTS. 40
SECTION 10.7 ENFORCEMENT OF AWARDS 40
SECTION 10.8 EQUITABLE RELIEF 40
ARTICLE XI GENERAL PROVISIONS 41
SECTION 11.1 REPRESENTATIONS, WARRANTIES AND AGREEMENTS 41
SECTION 11.2 NOTICES 41
SECTION 11.3 INTERPRETATION 41
SECTION 11.4 COUNTERPARTS 42
SECTION 11.5 ENTIRE AGREEMENT 42
SECTION 11.6 SEVERABILITY 42
SECTION 11.7 OTHER REMEDIES; SPECIFIC PERFORMANCE 42
SECTION 11.8 GOVERNING LAW 42
SECTION 11.9 RULES OF CONSTRUCTION 42
SECTION 11.10 ASSIGNMENT 43
</TABLE>
<PAGE>
SCHEDULES AND EXHIBITS
<TABLE>
<S> <C>
SCHEDULE A SHARE OWNERSHIP INFORMATION
SCHEDULE B CAMWORKS POOLING REPRESENTATIONS
EXHIBIT A FORM OF ESCROW AGREEMENT
EXHIBIT B FORM OF LOCK-UP AGREEMENT
EXHIBIT C FORM OF SHAREHOLDER POOLING LETTER
EXHIBIT D FORM OF POOLING COMFORT LETTER
EXHIBIT E FORM OF REGISTRATION AND RIGHTS AGREEMENT
EXHIBIT F FORM OF EMPLOYMENT AGREEMENTS, AS FOLLOWS:
F-1 - FORM OF CAMERON EMPLOYMENT AGREEMENT
F-2 - Form of Lundberg Employment Agreement
F-3 - Form of Owens Employment Agreement
F-4 - Form of Non-Competition Agreement
</TABLE>
<PAGE>
INDEX OF DEFINED TERMS
<TABLE>
<CAPTION>
Defined Term Location of Definition
------------ ----------------------
<S> <C>
Aggregate Merger Consideration 9.6(b)
Agreement 1.2
Allocation Ratio 1.8
Ancillary Agreements 2.2
Articles of Merger 1.2
Average Parent Stock Price 1.6(b)
Balance Sheet Date 3.5
Camworks Parties
Camworks Balance Sheet 3.5
Camworks Common Stock 3.2
Camworks Disclosure Schedule Article II
Camworks Financial Statements 3.5
Camworks Indemnified Parties 9.2
Camworks Intellectual Property 3.10
Camworks Material Adverse Effect 3.1
Camworks Permits 3.11(b)
Ceiling Ratio 1.6(c)
Certificate 1.11
Closing 1.2
Closing Date 1.2
Code Recitals
Common Exchange Ratio 1.6(a)
Competing Transaction 6.4(b)
Customers 3.17(c)
Damages 9.1
Drop Dead Date 8.1(b)
Dissenter's Rights 2.6
Effective Time 1.2
Employee Benefit Plan 3.14(a)
ERISA 3.14(a)
ERISA Affiliate 3.14(a)
Escrow Agreement 1.8
Escrowed Property 1.8
Exchange Act 2.11
Floor Ratio 1.6(d)
Fully Diluted Camworks Shares Outstanding 1.6(e)
GAAP 3.5
Governmental Entity 3.4(b)
HSR Act 2.4(b)
Indemnified Party 9.2
Indemnifying Party 9.2
Indemnity Escrow Amount 1.8
Laws 3.4(a)
</TABLE>
<PAGE>
<TABLE>
<S> <C>
Licensed Software 3.10(e)
Liens 3.7(b)
MBCA Recitals
Merger 1.1
Merger Sub Parties
Millenial Date Data 3.10(e)
NASDAQ 1.6(b)
Notice of Dispute 10.1
Parent Parties
Parent Balance Sheet 4.4(b)
Parent Common Stock 1.6(a)
Parent Financials 4.4(b)
Parent Indemnified Parties 9.1
Parent Material Adverse Effect 4.1
Parent SEC Reports 4.4(a)
Registration and Rights Agreement 6.6
Representatives 6.3
Returns 3.7(b)
SEC 2.11
Securities Act 2.10(a)
Several Representations Article II
Shareholders Parties
Shareholder Representative Parties
Software 3.10(d)
Shareholder Control and Voting Agreement 1.18
Shareholders Action 6.1
Subsidiary 3.1
Surviving Corporation 1.1
System 3.10(f)
Tax 3.7(a)
Terminating Camworks Breach 8.1(d)
Terminating Parent Breach 8.1(c)
Third Party Claim 9.3
</TABLE>
<PAGE>
Exhibit 4.1
REGISTRATION AND RIGHTS AGREEMENT
This Registration and Rights Agreement dated as of December 28, 1999 is
between Zamba Corporation ("ZAMBA"), a Delaware corporation, and the undersigned
holders (the "HOLDERS") of shares (the "CAMWORKS SHARES") of capital stock of
Camworks, Inc. ("CAMWORKS"), a Minnesota corporation. This Agreement is made in
connection with the execution of the Agreement and Plan of Reorganization dated
as of December 28, 1999 (the "MERGER AGREEMENT") pursuant to which Camworks is
merging with and into a wholly-owned subsidiary of Zamba and Zamba is issuing
shares of its Common Stock ("ZAMBA COMMON STOCK") to Holders of the outstanding
Camworks Shares. All capitalized terms used but not defined herein shall have
the meanings given to them in the Merger Agreement.
The parties hereto agree as follows:
SECTION 1 - REGISTRATION RIGHTS
1.1 RESALE REGISTRATION. Zamba will use its best efforts, with respect to
the Shares, within 75 days after the Closing Date under the Merger Agreement (so
long as any audited financial statements of Camworks necessary to be included in
such filing are available), to prepare and file a Registration Statement (the
"RESALE REGISTRATION STATEMENT") on Form S-3 (or any similar registration
statement then in effect) under the Securities Act covering the resale by each
Holder of the Holder's shares of Zamba Common Stock received pursuant to the
Merger Agreement in the amounts set forth on Exhibit I hereto (the "Shares"), as
applicable, from time to time in transactions not involving an underwritten
public offering and will use reasonable efforts to cause the Registration
Statement to be declared effective by the Securities and Exchange Commission
(the "COMMISSION") as soon as practicable thereafter and to keep the
Registration Statement covering the Shares continuously effective for the period
ending one year after the Closing Date, but in no event after the date on which
any Holder no longer holds any Shares registered under the Registration
Statement (the "EFFECTIVE PERIOD").
1.2 PIGGY-BACK REGISTRATION. (a) If prior to the time the Resale
Registration statement is filed, and before the end of the Effective Period,
Zamba proposes to file a registration statement under the Securities Act with
respect to an offering by Zamba for its own account or for the account of other
holders of Zamba Common Stock to be offered for cash (other than in connection
with the registration of securities issuable pursuant to an employee stock
option, stock purchase or similar plan or pursuant to a merger, exchange offer
or a transaction of the type specified in Rule 145(a) under the Securities Act),
then Zamba shall in each case give written notice of such proposed filing to the
Holders at least 20 days before the filing date, and such notice shall offer
such Holders the opportunity to register such number of Shares as each such
Holder may request (the "PIGGY-BACK REGISTRATION"). If such offer is accepted
by written notice to Zamba from the Holders of at least 20% of the Shares then
held by the Holders (with a proportional adjustment for any stock split or stock
dividend or other issuance of securities with respect to such Shares) within 15
days of the giving of the written notice provided for in the preceding sentence,
Zamba shall use its best efforts to permit, or (in the case of a proposed
underwritten offering) to cause the managing underwriter or underwriters thereof
to permit, the Holders of Shares requested to be included, in the registration
for such offering to include such Shares in such offering on the same terms and
conditions as the corresponding securities of Zamba included therein; PROVIDED
that (i) if, at any time after giving written notice of its intention to
register any securities and prior to the effective date of the registration
statement filed in connection with such registration, Zamba shall determine for
any reason not to proceed with the proposed registration, Zamba may, at its
election, give written notice of such
<PAGE>
determination to each Holder of Shares requested to be included in such
registration and thereupon shall be relieved of its obligation to register any
Shares in connection with such registration (but not from its obligation to pay
the Registration Expenses (defined below) in connection therewith) and (ii) if
such registration involves an underwritten offering by Zamba (underwritten, at
least in part, by Persons who are not affiliates or associates of Zamba or any
Holder), all Holders requesting to have Shares included in Zamba's registration
must sell their Shares to such underwriters who shall have been selected by
Zamba on the same terms and conditions as apply to Zamba, with such differences,
including any with respect to indemnification and contribution, as may be
customary or appropriate in combined primary and secondary offerings. If a
proposed registration pursuant to this Section 1.2 involves such an underwritten
public offering, any Holder making a request under this Section 1.2 in
connection with such registration may elect in writing, prior to the effective
date of the registration statement filed in connection with such registration,
to withdraw such request and not to have such securities registered in
connection with such registration. Notwithstanding the foregoing, if the
managing underwriter or underwriters of a proposed underwritten offering advise
Zamba in writing that in their opinion the total amount or kind of securities
that the Holders have requested to be included in such offering would adversely
affect the success of such offering, then the amount of securities to be offered
for the accounts of Holders of Shares and securities to be offered for the
account of other stockholders shall be reduced pro rata to the extent necessary
to reduce the total amount of securities to be included in such offering to the
amount recommended by such managing underwriter or underwriters.
1.3 PROCEDURES. In connection with any Registration Statement (defined
below):
(a) Zamba will promptly (subject to Section 1.4) prepare and file
with the Commission such amendments and post-effective amendments to the
Registration Statement as may be necessary to keep the Registration Statement
effective for as long as such registration is required to remain effective
hereunder; will cause the Prospectus (defined below) to be supplemented by any
required Prospectus supplement, and, as so supplemented, to be filed pursuant to
Rule 424 under the Securities Act; and will comply with the provisions of the
Securities Act applicable to it with respect to the disposition of all Shares
covered by such Registration Statement during the applicable period in
accordance with the intended methods of disposition by the Holders set forth in
the Registration Statement or supplement to the Prospectus.
(b) Zamba will promptly furnish to each Holder such number of copies
of the Prospectus (including each preliminary Prospectus) and any amendments or
supplements thereto as the Holder may reasonably request in order to facilitate
the public sale or other disposition of the Shares being sold by the Holder.
(c) Zamba will, on or prior to the date on which the Registration
Statement is declared effective, use reasonable efforts to register or qualify
the Shares covered by the Registration Statement under such securities or "blue
sky" laws, if any, as may be applicable of such states of the United States as
any Holder reasonably requests; PROVIDED, HOWEVER, that Zamba shall not be
required to qualify generally to do business in any jurisdiction where it would
not otherwise be required to qualify or to file any general consent to service
of process.
(d) Zamba will promptly give notice to each Holder (i) when the
Prospectus or any Prospectus supplement or post-effective amendment has been
filed and, with respect to the Registration Statement or any post-effective
amendment, when the same has become effective, (ii) of any request by the
Commission or any state securities authority with jurisdiction for amendments
and supplements to the Registration Statement and Prospectus or for additional
information after the Registration Statement has
<PAGE>
become effective, (iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement, (iv) of the issuance
by any state securities commission or other regulatory authority with
jurisdiction of any order suspending the qualification or exemption from
qualification of any of the Shares under any applicable state securities or
"blue sky" laws and (v) of the happening of any event which makes any statement
made in the Registration Statement or related Prospectus untrue or which
requires the making of any changes in the Registration Statement or Prospectus
so that they will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. As soon as practicable following any of such events, but in any
case not later than the expiration of the period for suspension of disposition
of the Shares under Section 1.4, Zamba will prepare and file with the Commission
and furnish such supplement or amendment to such Prospectus as may be necessary
so that, as thereafter deliverable to the purchasers of the Shares, such
Prospectus will not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statement therein, in light of the
circumstances under which they were made, not misleading.
1.4 SUSPENSION PERIOD. Upon receipt of a notice under clauses (ii)
through (v) of Section 1.3(d), each Holder will forthwith discontinue
disposition of the Shares pursuant to the Registration Statement until the
Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 1.3(d) or until the Holder is advised in writing by
Zamba that the use of the Prospectus may be resumed and has received copies of
any additional or supplemental filings which are incorporated by reference in
the Prospectus, and, if so directed by Zamba, the Holder will deliver to Zamba
(at Zamba's expense) all copies, other than permanent file copies then in the
Holder's possession, of the Prospectus covering the Shares current at the time
of receipt of such notice; PROVIDED, HOWEVER, that in no event will the period
of suspension of disposition of the Shares under this Section 1.4 exceed 90
days.
1.5 REGISTRATION EXPENSES. Zamba will bear all expenses incurred in
connection with the registration of the Shares pursuant to this Section 1
("Registration Expenses"), including without limitation all printing, legal and
accounting expenses incurred by Zamba and all registration and filing fees
imposed by the Commission, any state securities commission or the Nasdaq Stock
Market or, if the common stock of Zamba is not then listed on such market, the
principal national securities exchange or national market system on which the
common stock is then traded or quoted. Each Holder will be responsible for any
brokerage commissions and taxes of any kind (including, without limitation,
transfer taxes) with respect to any disposition, sale or transfer of the
Holder's Shares and for any legal, accounting and other expenses incurred by the
Holder.
1.6 INDEMNIFICATION.
(a) INDEMNIFICATION BY ZAMBA. Zamba agrees to indemnify and hold
harmless, to the full extent permitted by law, each Holder, its partners,
officers, directors, trustees, stockholders, employees and agents, and each
person who controls such Holder within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, or is under common control
with, or is controlled by, such Holders, together with the partners, officers,
directors, trustees, stockholders, employees and agents of such controlling
person (collectively, the "CONTROLLING PERSONS"), from and against all losses,
claims, damages, liabilities and expenses, including without limitation
reasonable legal fees and expenses (collectively, the "DAMAGES"), incurred by
such Holder and any such Controlling Person arising out of or based upon any
untrue or alleged untrue statement of material fact contained in the
Registration Statement (or any amendment thereto), or any omission or alleged
omission to state therein a material fact necessary to make the statements
therein in light of the circumstances under which they were made not
<PAGE>
misleading, or any untrue statement or alleged untrue statement of a material
fact contained in any Prospectus (as amended or supplemented if Zamba shall have
furnished any amendments or supplements thereto), or any omission or alleged
omission to state therein a material fact necessary to make the statements
therein in light of the circumstances under which they were made not misleading,
except insofar as such Damages arise out of or are based upon any such untrue
statement or omission based upon information relating to such Holder furnished
in writing to Zamba by such Holder specifically for use therein; PROVIDED,
HOWEVER, that Zamba shall not be liable to any Holder under this Section 1.6(a)
to the extent that any such Damages were caused by the fact that such Holder
sold the Shares to a person as to whom it shall be established that there was
not sent or given, at or prior to the written confirmation of such sale, a copy
of the Prospectus as then amended or supplemented if, and only if (i) Zamba has
previously furnished copies of such amended or supplemented Prospectus to such
Holder and (ii) such Damages were caused by any untrue statement or omission or
alleged untrue statement or omission contained in the Prospectus so delivered
which was corrected in such amended or supplemented Prospectus.
(b) INDEMNIFICATION BY THE HOLDERS. Each Holder agrees, severally
and not jointly, to indemnify and hold harmless Zamba, its directors, officers
and each person, if any, who controls Zamba within the meaning of either Section
15 of the Securities Act or Section 20 of the Exchange Act to the same extent as
the foregoing indemnity from Zamba to such Holder, but only with reference to
information relating to such Holder furnished in writing to Zamba by such Holder
specifically for use in the Registration Statement (or any amendment thereto) or
any Prospectus (or any amendment or supplement thereto); PROVIDED, HOWEVER, that
such selling Holder shall not be obligated to provide such indemnity to the
extent that such Damages result from the failure of Zamba to promptly amend or
take action to correct or supplement the Registration Statement or Prospectus on
the basis of corrected or supplemental information provided by such Holder to
Zamba expressly for such purpose. In no event shall the liability of any Holder
of the Shares hereunder be greater in amount than the amount of the proceeds
received by such Holder upon the sale of the Shares giving rise to such
indemnification obligation.
(c) PROCEDURE. Each party entitled to indemnification under this
Section 1.6 (the "INDEMNIFIED PARTY") shall give prompt notice of any claim as
to which indemnification may be sought to the party required to provide
indemnification (the "INDEMNIFYING PARTY"), provided that failure to give such
notice shall not relieve the Indemnifying Party of its obligations hereunder
except to the extent of actual prejudice. The Indemnifying Party shall be
entitled to assume the defense of any such claim with counsel reasonably
satisfactory to the Indemnified Party. The Indemnified Party may participate in
such defense at its own expense, provided that the Indemnifying Party will pay
such expense if representation of the Indemnified Party by the counsel retained
by the Indemnifying Party would be inappropriate due to actual or potential
differing interests between the Indemnified Party and any other party
represented by such counsel in such proceeding. No Indemnifying Party shall,
except with the consent of the Indemnified Party, agree to any settlement that
does not include a release of the Indemnified Party from all liability in
respect of such claim, and the Indemnified Party shall not settle such claim
without the prior written consent of the Indemnifying Party.
1.7 RESTRICTIONS ON SALE. In the event of an underwritten public offering
for the account of Zamba, upon the written request of the managing underwriter
or underwriters of such offering, each Holder agrees not to effect any public
sale or distribution of any securities similar to those being registered in such
offering, including without limitation, through sales of the Shares pursuant to
the Registration Statement, during the 21 days prior to, and during the 90-day
period beginning on, the effective date of the Registration Statement relating
to such offering. In the event of the delivery of such
<PAGE>
a request, the right of a Holder to sell under the Registration Statement and
the obligations of Zamba to keep the Registration Statement current shall be
suspended for the period specified in the preceding sentence, provided that the
periods during which Zamba is obligated to keep any Registration Statement
effective pursuant to Section 1.1 shall be extended for a period equal to the
length of any such suspension. Zamba hereby confirms that it has no current plan
to engage in an underwritten public offering for its account.
1.8 CERTAIN DEFINITIONS. As used in this Section 1, the following terms
have the following meanings:
(a) "PROSPECTUS" means the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Securities Act), as
amended or supplemented by any prospectus supplement, and by all other
amendments and supplements to the prospectus, including post-effective
amendments, and in each case including all material incorporated by reference or
deemed to be incorporated by reference in such prospectus.
(b) "REGISTRATION STATEMENT" means any registration statement of
Zamba that covers any of the Shares pursuant to the provisions of this Agreement
and all amendments and supplements to any such registration statement, including
post-effective amendments, in each case including the Prospectus, all exhibits,
and all material incorporated by reference or deemed to be incorporated by
reference in such registration statement.
1.9 POOLING OF INTERESTS. Notwithstanding anything else in this
Agreement, in no event shall the Holders be allowed to sell any Shares during
any period of time the Holders has agreed not to sell such Shares to permit
Zumba to account for the Merger as a pooling of interests.
SECTION 2 - OTHER RIGHTS
2.1 NON-VOTING OBSERVER. Timothy Cameron shall be entitled to designate
one nonvoting observer to receive (i) reasonable prior notice of and attend all
meetings of the Board of Directors of Zamba and any of its committees and (ii)
prior notice of any action that the Board of Directors of Zamba or any of its
committees may take by written consent.
2.2 TERMINATION. The rights set forth in this Section shall terminate on
the earliest of (i) the date the Holders do not own 50% of the Zamba Common
Stock issued to them in the Merger, (ii) the date that Zamba Common Stock held
by the Holders does not represent 1% of the outstanding Common Stock of Zamba
and (iii) when Timothy Cameron and at least one other Holder are no longer
employed by Zamba.
SECTION 3 - MISCELLANEOUS
3.1 AMENDMENT AND WAIVER; ENTIRE AGREEMENT. This Agreement may not be
amended, modified or supplemented or any requirement hereunder waived, except in
writing signed by the party to be bound thereby. This Agreement constitutes the
entire agreement among the parties with respect to the subject matter hereof and
supersedes all prior agreements and understandings, both written and oral, among
the parties with respect to the subject matter hereof. In particular, the
Holders acknowledge that any registration rights granted to them by Camworks
with respect to Camworks shares are terminated and void and are not applicable
to the shares or other securities received in the Merger.
<PAGE>
3.2 NOTICES. All notices and other communications provided for or
permitted hereunder shall be in writing and shall be deemed to have been duly
given if delivered personally or sent by telecopier, registered or certified
mail (return receipt requested), postage prepaid or courier to the parties at
their respective addresses set forth on the signature pages hereof (or at such
other address for any party as shall be specified by like notice, provided that
notices of a change of address shall be effective only upon receipt thereof).
All such notices and communications shall be deemed to have been received at the
time delivered by hand, if personally delivered; five business days after being
deposited in the mail, postage prepaid, if mailed; when receipt is acknowledged,
if telecopied; and on the next business day if timely delivered to a courier
guaranteeing overnight delivery.
3.3 SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of
and be binding upon the successors, assigns, heirs and legal representatives of
the parties. This Agreement may not be assigned by any Holder and any attempted
assignment shall be void and of no effect and shall terminate all obligations of
Zamba hereunder with respect to such Holder.
3.4 COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute the same agreement.
3.5 HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
3.6 GOVERNING LAW. This Agreement shall be governed by the laws of the
State of Minnesota without regard to principles of conflicts of law.
[Remainder of page intentionally left blank]
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Registration and Rights
Agreement to be executed as of the date stated above.
ZAMBA CORPORATION
By: /S/ Paul Edelhertz
------------------
Name: Paul Edelhertz
Title President and CEO
Address: 7301 Ohms Lane
Suite 200
Minneapolis, MN 55439
HOLDERS:
/S/ Timothy A. Cameron
------------------------
Timothy A. Cameron
Address: As set forth in the Merger Agreement
/S/ Paul R. Lundberg
-----------------------
Paul R. Lundberg
Address: As set forth in the Merger Agreement
/S/ Scott R. Owens
--------------------
Scott R. Owens
Address: As set forth in the Merger Agreement
<PAGE>
EXHIBIT I
<TABLE>
<CAPTION>
Shareholder No. of Shares
----------- -------------
<S> <C>
Timothy A. Cameron 558,000
Paul R. Lundberg 372,000
Scott R. Owens 70,000
</TABLE>
