SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 5 to
SCHEDULE 13D
Under the Securities Exchange Act of 1934
TREEV, INC.
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(Name of Issuer)
Common Stock, par value $0.0001 per share
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(Title of Class of Securities)
894692300
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(CUSIP Number)
Ulrich Thol
CE Computer Equipment AG
Herforder Strasse 155A
33609 Bielefeld, Germany
Telephone: +49-521-9318-01
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
Copy to:
W. Jeffrey Lawrence
Shearman & Sterling
9 Appold Street
Broadgate West
London EC2A 2AP
United Kingdom
Telephone: +44 20-7655-5000
August 22, 2000
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(Date of Event which Requires Filing of this Statement)
...............................................................................
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of ss.ss. 240.13d- 1(e), 240.13d-1(f) or 240.13d-(g), check the
following box |_|.
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Introductory Statement
This Amendment No. 5 amends and supplements the Statement on Schedule
13D filed with the Securities and Exchange Commission (the "SEC"), as amended by
Amendment No. 1, Amendment No. 2, Amendment No. 3 and Amendment No. 4 thereto
(as so amended, the "Schedule"), relating to the beneficial ownership by CE
Computer Equipment Aktiengesellschaft, a German corporation, of Issuer Common
Stock. All capitalized terms not otherwise defined herein are used herein as
defined in the Schedule.
Item 4. Purpose of Transaction.
Item 4 is hereby amended and restated in its entirety as follows:
"On May 9, 2000, the Reporting Person and the Issuer issued a
press release, a copy of which is attached hereto as Exhibit 28,
announcing that, following extensive review with their independent
public accountants, they have concluded that the Reporting Person will
not account for its pending acquisition of the Issuer as a pooling of
interests under applicable U.S. accounting rules. As previously
disclosed, the Reporting Person and the Issuer entered into a merger
agreement dated as of November 19, 1999 (the "Original Merger
Agreement") which provided that the Reporting Person would acquire the
Issuer in a transaction that was conditional upon its being accounted
for as a pooling of interests. On March 22, 2000, the Reporting Person
executed a Letter Waiver, dated March 22, 2000, in favor of the Issuer
(the "Letter Waiver"), waiving compliance with the closing condition
contained in Section 7.02(g) of the Original Merger Agreement. On May
8, 2000, the Reporting Person and the Issuer executed the Amended and
Restated Merger Agreement to reflect, among other things, that (i) the
Reporting Person and the Issuer no longer intend that the Merger (as
defined below) will be accounted for as a pooling of interests, (ii)
the approval of the Amended and Restated Merger Agreement by the
stockholders of the Reporting Person is not required and (iii) the
Issuer's Series M Convertible Preferred Stock and the Series M1
Convertible Preferred Stock of the Issuer have been converted into
Issuer Common Stock.
Pursuant to the Amended and Restated Merger Agreement, the
Reporting Person will appoint an independent financial institution to
act as exchange agent (the "Exchange Agent"). A newly formed, wholly
owned subsidiary of the Exchange Agent ("Merger Sub ") will be
incorporated in Delaware and will be merged with and into the Issuer
(the "Merger"); the separate corporate existence of Merger Sub will
cease and the Issuer will be the surviving corporation of the Merger
(the "Surviving Corporation"). As soon as possible after the effective
time of the Merger, the Exchange Agent (as the sole stockholder of the
Surviving Corporation) will contribute to the Reporting Person, for the
account of the former stockholders of the Issuer, all of the issued and
outstanding shares of the common stock of the Surviving Corporation as
a transfer in kind (the "Share Exchange"), and the Reporting Person
will issue Reporting Person Ordinary Shares and will cause Reporting
Person ADSs to be delivered to the Exchange Agent for the account of
the former stockholders of the Issuer. As a result of the Merger and
the Share Exchange, the Reporting Person will own all the outstanding
shares of Issuer Common Stock and the Issuer will be a wholly owned
subsidiary of the Reporting Person.
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In the Merger, each share of Issuer Common Stock and each
share of the Issuer's Series A Cumulative Convertible Preferred Stock
("Series A Preferred Stock") will be converted into the right to
receive Reporting Person ADSs. Under the terms of the Amended and
Restated Merger Agreement, the Reporting Person will issue a total of
1,330,000 Reporting Person Ordinary Shares in the form of Reporting
Person ADSs in exchange for the outstanding shares of Issuer Common
Stock and Series A Preferred Stock and for the outstanding warrants
("Warrants") and options ("Options") for Issuer Common Stock. Each
share of Issuer Common Stock will be converted into a proportionate
number of the Reporting Person ADSs to be issued in the Merger, after
giving effect to the issuance of Reporting Person ADSs in respect of
the Series A Preferred Stock, the Options and the Warrants. Each share
of Series A Preferred Stock will be converted into Reporting Person
ADSs with a value of at least $10.00.
Certain beneficial owners of shares of Issuer Common Stock
have agreed to vote their shares of Issuer Common Stock in favor of the
Merger, the Amended and Restated Merger Agreement and the transactions
contemplated by the Amended and Restated Merger Agreement pursuant to
the terms of the Voting Agreement. The Reporting Person has the right
under the Voting Agreement to vote all the shares of Issuer Common
Stock owned by Horace T. Ardinger, Jr.; Douglas Adkins; James J. Leto;
Robert P. Bernardi; John F. Burton; C. Alan Peyser; Thomas A. Wilson;
Mark A. Paiewonsky; Richard E. McMahon; and Brian H. Hajost
(collectively, the "Stockholders"). In addition, each such holder
granted an irrevocable proxy dated November 19, 1999 (the "Irrevocable
Proxies") in favor of the Reporting Person to vote their shares of
Issuer Common Stock in favor of the Original Merger Agreement and the
merger contemplated thereby. In connection with the execution of
Amendment No. 1 to the Voting Agreement and the amendment and
restatement of the Original Merger Agreement, each of the Stockholders
has granted a new irrevocable proxy (the "New Irrevocable Proxies") in
favor of the Reporting Person to vote their shares of Issuer Common
Stock in favor of the Merger, the Amended and Restated Merger Agreement
and any other matter that could reasonably be expected to facilitate
the Merger. As of May 8, 2000, the Stockholders owned in the aggregate
5,374,299 outstanding shares of Issuer Common Stock, representing
approximately 33.6% of the shares of Issuer Common Stock then
outstanding.
As a result of the Merger and the Share Exchange, the
Reporting Person will own all the outstanding shares of Issuer Common
Stock, and there will not be any shares of Series A Preferred Stock
outstanding. Shares of Issuer Common Stock and Series A Preferred Stock
are currently traded on the Nasdaq National Market System. Following
the Merger and the Share Exchange, the Reporting Person intends to
cause the Issuer Common Stock and the Series A Preferred Stock to cease
to be authorized to be quoted on the Nasdaq National Market System. In
addition, following the Merger and the Share Exchange, the Issuer
Common Stock and the Series A Preferred Stock will be eligible for
termination of registration pursuant to Section 12(g)(4) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"). The
Reporting Person intends to seek to cause the Issuer to terminate the
registration of the Issuer Common Stock and the Series A Preferred
Stock under the Exchange Act as soon as possible.
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Pursuant to the Amended and Restated Merger Agreement, as of
the effective time of the Merger, (i) Hans-Jurgen Brintrup and Thomas
Wenzke will become the directors of the Surviving Corporation, (ii)
Thomas Wenzke will become the Chief Administrative Officer of the
Surviving Corporation, (iii) the Certificate of Incorporation of the
Surviving Corporation will be amended and restated in its entirety to
read as the Certificate of Incorporation of Merger Sub as in effect
immediately prior to such time (except that the name of the Surviving
Corporation shall be "TREEV, Inc.") and (iv) the Bylaws of Merger Sub,
as in effect immediately prior to such time, will be the Bylaws of the
Surviving Corporation.
On August 22, 2000, the Reporting Person entered into the
Series A Preferred Stock Agreement, dated as of August 22, 2000, with
certain holders of Series A Preferred Stock (the "Series A Agreement"),
pursuant to which each such holder has agreed not to exercise any right
or benefit (a "Change in Control Right") of such holder as a result of
a "Change in Control" (as defined in the Certificate of Designations
for the Series A Preferred Stock), to the extent that any Change in
Control Right is or becomes exercisable as a result of the Merger or
the transactions contemplated by the Amended and Restated Merger
Agreement. The stockholders party to the Series A Agreement own, in the
aggregate, 1,108,781 shares of Series A Preferred Stock, representing
approximately 69.1% of the shares of Series A Preferred Stock
outstanding as of August 22, 2000. In connection with the execution of
the Series A Agreement, the Issuer executed a letter agreement (the
"TREEV Letter Agreements") for the benefit of each stockholder party to
the Series A Agreement providing that, for so long as the holder is in
compliance with the Series A Agreement, TREEV will not exercise its
right to redeem shares of Series A Preferred Stock pursuant to the
Certificate of Designations for the Series A Preferred Stock.
Except as set forth in this Statement, the Amended and
Restated Merger Agreement, the Voting Agreement, the New Irrevocable
Proxies, the Series A Agreement and the TREEV Letter Agreements,
neither the Reporting Person nor, to the best knowledge of the
Reporting Person, any of the individuals named in Schedule I hereto has
formulated any plans or proposals which relate to or would result in:
(i) the acquisition by any person of additional securities of the
Issuer or the disposition of securities of the Issuer, (ii) an
extraordinary corporate transaction involving the Issuer or any of its
subsidiaries, (iii) a sale or transfer of a material amount of the
assets of the Issuer or any of its subsidiaries, (iv) any change in the
present board of directors or management of the Issuer, (v) any
material change in the Issuer's capitalization or dividend policy, (vi)
any other material change in the Issuer's business or corporate
structure, (vii) any change in the Issuer's charter or bylaws or other
instrument corresponding thereto or other action which may impede the
acquisition of control of the Issuer by any person, (viii) causing a
class of the Issuer's securities to be deregistered or delisted, (ix) a
class of the Issuer's securities becoming eligible for termination of
registration or (x) any action similar to any of those enumerated
above.
The foregoing descriptions of the Original Merger Agreement,
the Amended and Restated Merger Agreement, the Voting Agreement, the
Irrevocable Proxies, the New Irrevocable Proxies, the Letter Waiver,
the Series A Agreement and the TREEV Letter Agreements do not purport
to be complete and are qualified in their entirety by reference to such
agreements, which are attached hereto as Exhibits 1 through 27 and
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Exhibits 29 through 32, respectively, and which are incorporated herein
by reference in their entirety."
Item 6. Contracts, Arrangements, Understandings or Relationships with
Respect to Securities of the Issuer.
Item 6 is hereby amended and restated in its entirety as follows:
"Except as provided in this Statement, the Amended and
Restated Merger Agreement, the Voting Agreement, the New Irrevocable
Proxies, the Series A Agreement and the TREEV Letter Agreements, none
of the persons named in Item 2 has any contracts, arrangements,
understandings or relationships (legal or otherwise) with any persons
with respect to any securities of the Issuer including, but not limited
to, transfer or voting of any of the securities, finder's fees, joint
ventures, loan or option arrangements, puts or calls, guarantees of
profits, division of profits or loss, or the giving or withholding of
proxies."
Item 7. Material to Be Filed as Exhibits.
Item 7 is hereby amended and supplemented as follows:
29. Series A Preferred Stock Agreement, dated as of August 22,
2000, among CE Computer Equipment AG and each of the parties identified on
Schedule A thereto.
30. Letter, dated as of August 22, 2000, from TREEV, Inc. to
Green-Cohn Group.
31. Letter, dated as of August 22, 2000, from TREEV, Inc. to
Lutheran Brotherhood.
32. Letter, dated as of August 22, 2000, from TREEV, Inc. to
Zazove Associates LLC.
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Signature
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this Statement is true, complete and
correct.
August 23, 2000 CE Computer Equipment AG
By: /s/ Thomas Wenzke
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Name: Thomas Wenzke
Title: Member of the Board of
Management
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EXHIBIT INDEX
Exhibit No. Description
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29 Series A Preferred Stock Agreement, dated as of August
22, 2000, among CE Computer Equipment AG and each
of the parties identified on Schedule A thereto.
30 Letter, dated as of August 22, 2000, from TREEV, Inc. to
Green-Cohn Group.
31 Letter, dated as of August 22, 2000, from TREEV, Inc. to
Lutheran Brotherhood.
32 Letter, dated as of August 22, 2000, from TREEV, Inc. to
Zazove Associates LLC.
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Exhibit 29
EXECUTION COPY
SERIES A PREFERRED STOCK AGREEMENT
SERIES A PREFERRED STOCK AGREEMENT, dated as of August 22,
2000 (this "Agreement"), among CE Computer Equipment AG, an Aktiengesellschaft
organized and existing under the laws of the Federal Republic of Germany (the
"Acquiror"), and each of the parties identified on Schedule A hereto
(individually a "Series A Stockholder" and collectively the "Series A
Stockholders").
WHEREAS, TREEV, Inc., a Delaware corporation (the "Company")
and the Acquiror entered into an Agreement and Plan of Merger dated as of
November 19, 1999 (the "Original Merger Agreement");
WHEREAS, the Company and the Acquiror amended and restated the
Original Merger Agreement as of May 8, 2000 (as so amended and restated, the
"Merger Agreement") to reflect, among other things, that (i) they no longer
intend that the Merger (as defined below) shall be accounted for as a "pooling
of interests" for financial reporting purposes under applicable United States
accounting rules and the accounting standards of the United States Securities
and Exchange Commission (the "SEC"), (ii) the approval of the Merger Agreement
by the stockholders of the Acquiror is not required and (iii) the Company's
Series M Convertible Preferred Stock, par value $.0001 per share, and the
Company's Series M1 Convertible Preferred Stock, par value $.0001 per share,
have been converted into common stock, par value $.0001 per share, of the
Company;
WHEREAS, the Merger Agreement provides, among other things,
that the Acquiror will cause to be incorporated a Delaware corporation ("Merger
Vehicle");
WHEREAS, Merger Vehicle will be merged (the "Merger") with and
into the Company pursuant to the terms and conditions of the Merger Agreement;
and
WHEREAS, as of the date hereof, the Series A Stockholders own
of record and beneficially the number of shares of Series A Cumulative
Convertible Preferred Stock, par value $0.0001 per share, of the Company (the
"Series A Preferred Stock") set forth opposite their respective names on
Schedule A hereto and wish to enter into this Agreement with respect to such
shares of Series A Preferred Stock;
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements contained herein and in the Merger Agreement and
intending to be legally bound hereby, the parties hereto hereby agree as
follows:
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ARTICLE I
THE SHARES
SECTION 1.01. Change in Control Rights. Each Series A
Stockholder hereby agrees, severally and not jointly: (a) not to exercise, with
respect to any shares of Series A Preferred Stock owned by such Series A
Stockholder, or with respect to which such Series A Stockholder has or shares
control, and any of the shares of Series A Preferred Stock which may, or with
respect to which control may, hereafter be acquired by such Series A
Stockholder, any right or benefit (a "Change in Control Right") of such Series A
Stockholder as a "Series A Holder" (as defined in the Certificate of Amendment
to Certificate of Designations of Series A Cumulative Convertible Preferred
Stock of Network Imaging Corporation, the previous name of the Company (the
"Certificate of Designations")) as a result of a "Change in Control" (as defined
in the Certificate of Designations), to the extent that any Change in Control
Right is or becomes exercisable as a result of the Merger or the transactions
contemplated by the Merger Agreement; and (b) without the prior written consent
of the Acquiror, not to waive or otherwise modify or amend, and not to consent
or vote in favor of any waiver, modification or amendment, of any Change in
Control Right which is or may become exercisable as a result of any transaction
other than the Merger or the transactions contemplated by the Merger Agreement.
SECTION 1.02. No Ownership Interest. Nothing contained in this
Agreement will be deemed to vest in the Acquiror or Merger Vehicle any direct or
indirect ownership or incidence of ownership of or with respect to any shares of
Series A Preferred Stock. All rights, ownership and economic benefits of and
relating to the shares of Series A Preferred Stock will remain and belong to the
Series A Stockholders, and neither the Acquiror nor Merger Vehicle will have any
authority to manage, direct, superintend, restrict, regulate, govern, or
administer any of the policies or operations of the Company or exercise any
power or authority to direct the Series A Stockholders in the voting or control
or sale or purchase of any shares of Series A Preferred Stock, except as
otherwise provided herein, in the Merger Agreement, or the performance of the
Series A Stockholders' duties or responsibilities as Series A Stockholders of
the Company.
SECTION 1.03. Evaluation of Investment. Each Series A
Stockholder, by reason of his knowledge and experience in financial and business
matters, believes itself capable of evaluating the merits and risks of the
investment in American Depositary Shares ("Acquiror ADSs"), each representing
one Ordinary Share without par value of Acquiror ("Acquiror Shares")
contemplated by the Merger Agreement.
SECTION 1.04. No Inconsistent Agreements. Each Series A
Stockholder hereby represents, warrants and covenants that such Series A
Stockholder has not granted, and will not grant, any proxy or power of attorney
which is inconsistent with this Agreement.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES
OF THE SERIES A STOCKHOLDERS
Each Series A Stockholder hereby represents and warrants, severally and not
jointly, to the Acquiror as follows:
SECTION 2.01. Authority Relative to This Agreement. Such
Series A Stockholder has the requisite power and authority to execute and
deliver this Agreement, to perform its obligations hereunder and to consummate
the transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by such Series A Stockholder and, assuming the due
authorization, execution and delivery by the Acquiror and the other Series A
Stockholders, constitutes a legal, valid and binding obligation of such Series A
Stockholder, enforceable against such Series A Stockholder in accordance with
its terms.
SECTION 2.02. No Conflict. The execution and delivery of this
Agreement by such Series A Stockholder does not, and the performance of this
Agreement by such Series A Stockholder will not, 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 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 shares of Series A Preferred Stock pursuant to,
any note, bond, mortgage, indenture, contract, agreement, lease, license,
permit, franchise or other instrument or obligation to which such Series A
Stockholder is a party or by which such Series A Stockholder or the shares of
Series A Preferred Stock owned by him are bound or affected.
SECTION 2.03. Title to the Shares of Series A Preferred Stock.
The shares of Series A Preferred Stock owned by such Series A Stockholder are
owned free and clear of all security interests, liens, claims, pledges, options,
rights of first refusal, agreements, limitations on such Series A Stockholder's
voting rights, charges and other encumbrances of any nature whatsoever, and such
Series A Stockholder has not appointed or granted any proxy, which appointment
or grant remains effective, with respect to any shares of Series A Preferred
Stock, except that the shares of Series A Preferred Stock may be subject to
security interests and may be encumbered pursuant to margin accounts.
ARTICLE III
REGISTRATION RIGHTS
SECTION 3.01. Incidental Registration. (a) Whenever the
Acquiror proposes to register any Acquiror ADSs under the Securities Act of
1933, as amended, and the rules and regulations promulgated thereunder (the
"Securities Act") on a form and in a manner that would permit registration of
Registrable Securities (as hereinafter defined) for sale to the public under the
Securities Act, it will each such time give prompt written notice to all Series
A Stockholders holding Registrable Securities of its intention to do so,
describing such
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securities and specifying the form and manner and the other relevant facts
involved in such proposed registration (including without limitation whether or
not such registration will be in connection with an underwritten offering of
Acquiror ADSs and, if so, the identity of the managing underwriter and whether
such offering will be pursuant to a "best efforts" or "firm commitment"
underwriting if such disclosure is acceptable to the managing underwriter). Upon
the written request of any such Series A Stockholder delivered to the Acquiror
within 30 days after such notice shall have been given to such Series A
Stockholder (which request shall specify the Registrable Securities intended to
be disposed of by such Series A Stockholder and the intended method of
disposition thereof), the Acquiror will use its reasonable best efforts to
effect the registration under the Securities Act, as expeditiously as is
reasonable, of all Registrable Securities that the Acquiror has been so
requested to register by the Series A Stockholders, to the extent requisite to
permit the disposition (in accordance with the intended methods thereof as
aforesaid) of the Registrable Securities so to be registered; provided, however,
that:
(i) if, at any time after giving such written notice of its
intention to register any of such Registrable Securities and prior to
the effective date of the registration statement filed in connection
with such registration, the Acquiror shall determine for any reason not
to register such securities, the Acquiror may, at its election, give
written notice of such determination to each Series A Stockholder that
has requested to register Registrable Securities and thereupon the
Acquiror shall be relieved of its obligation to register any
Registrable Securities in connection with such registration;
(ii) if (A) the registration so proposed by the Acquiror
involves an underwritten offering of the securities so to be
registered, to be distributed by or through one or more underwriters of
recognized standing under underwriting terms appropriate for such a
transaction, and (B) the managing underwriter of such underwritten
offering shall advise the Acquiror in writing (with a copy to each
Series A Stockholder) that, in its judgment, the number of Registrable
Securities and any other securities proposed to be included in such
offering by the Acquiror should be limited due to market conditions,
then the Acquiror will promptly advise each such Series A Stockholder
thereof and may require, by written notice to each such Series A
Stockholder accompanying such advice, that, to the extent necessary to
meet such limitation, all Company Stockholders (as hereinafter defined)
proposing to sell Acquiror ADSs in such offering shall share pro rata
in the number of Acquiror ADSs to be excluded from such offering, such
pro rata sharing to be based on the respective numbers of Acquiror ADSs
as to which registration has been requested by such Company
Stockholders; provided, however, that in no event will the amount of
Acquiror ADSs to be sold by such Company Stockholders pursuant to such
registration statement after such reduction represent less than 20% of
the Acquiror ADSs included in such offering;
(iii) the Acquiror shall not be obligated to effect any
registration of Registrable Securities under this Section 3.01 that is
incidental to the registration of any of its securities in connection
with any merger, acquisition, exchange offer, dividend reinvestment
plan or stock option or other employee benefit plan; and
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(iv) notwithstanding any other provision of this Agreement to
the contrary, the Acquiror shall not be required to register any
Registrable Securities under this Agreement and shall have no
obligation under this Section 3.01 with respect to any requests made by
Series A Stockholders after the first anniversary of the date of
consummation of the Merger.
For purposes of this Agreement, "Registrable Securities" shall mean Acquiror
ADSs which are issued to the Series A Stockholders upon consummation of the
Merger; provided, however, that, as to any particular Registrable Securities
that have been issued, such securities shall cease to be Registrable Securities
when (i) a registration statement with respect to the sale of such securities
shall have become effective under the Securities Act and such securities shall
have been disposed of under such registration statement, (ii) a sale has been
made in reliance on and in accordance with Rule 144 under the Securities Act,
(iii) they shall have been otherwise transferred or disposed of, (iv) they shall
no longer be held by or for the benefit of the Series A Stockholder to whom they
were issued in the Merger or (v) they shall have ceased to be outstanding.
(b) The Acquiror will pay all Registration Expenses in
connection with each registration of Registrable Securities effected by it
pursuant to this Section 3.01. For purposes of this Agreement, "Registration
Expenses" shall mean all out-of-pocket expenses incident to the Acquiror's
performance of or compliance with this Article III, including without limitation
all registration and filing fees (including filing fees with respect to the
National Association of Securities Dealers, Inc.), all fees and expenses of
complying with state securities or "blue sky" laws (including reasonable fees
and disbursements of its independent public accountants, including the expenses
of any special audits and underwriters' counsel in connection with any "blue
sky" memorandum or survey), all printing expenses, all listing fees, all
registrars' and transfer agents' fees, and the fees and disbursements of counsel
for the Acquiror and "cold comfort" letters required by or incident to such
performance and compliance.
SECTION 3.02. Registration Procedures. (a) If and when the
Acquiror is required to use its reasonable best efforts to effect the
registration of any Registrable Securities under the Securities Act as provided
in Section 3.01, the Acquiror will as expeditiously as is reasonable:
(i) prepare and file with the Securities and Exchange
Commission (the "Commission") on any appropriate form a registration
statement with respect to such Registrable Securities and use its
reasonable best efforts to cause such registration statement to become
effective;
(ii) prepare and file with the Commission such amendments
(including post-effective amendments) and supplements to such
registration statement and the prospectus used in connection therewith
as may be necessary to keep such registration statement effective and
to comply with the provisions of the Securities Act with respect to the
disposition of all Registrable Securities and other securities covered
by such registration statement until the earlier of (A) such time as
all such Registrable Securities and other securities have been disposed
of in accordance with the intended
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methods of disposition by the seller or sellers thereof set forth in
such registration statement and (B) the expiration of three months from
the date such registration statement first becomes effective;
(iii) furnish to each Series A Stockholder selling such
Registrable Securities such number of conformed copies of such
registration statement and of each such amendment and supplement
thereto (in each case including all exhibits), such number of copies of
the prospectus included in such registration statement (including each
preliminary prospectus and any summary prospectus), in conformity with
the requirements of the Securities Act, such documents incorporated by
reference in such registration statement or prospectus, and such other
documents, as such Series A Stockholder may reasonably request in order
to facilitate the sale or disposition of such Registrable Securities;
(iv) use its reasonable best efforts to register or qualify
all Registrable Securities and other securities covered by such
registration statement under such other securities or "blue sky" laws
of such jurisdictions as each Series A Stockholder shall reasonably
request, and do any and all other acts and things that may be necessary
to enable such seller to consummate the disposition in such
jurisdictions of such Series A Stockholder's Registrable Securities
covered by such registration statement, except that the Acquiror shall
not for any such purpose be required to qualify generally to do
business as a foreign corporation in any jurisdiction wherein it is not
so qualified, or to subject itself to taxation in respect of doing
business in any such jurisdiction, or to consent to general service of
process in any such jurisdiction;
(v) furnish to each Series A Stockholder selling Registrable
Securities a signed counterpart, addressed to such Series A
Stockholder, of (A) an opinion of counsel for the Acquiror, dated the
effective date of such registration statement (or, if such registration
includes an underwritten public offering, dated the date of the closing
under the underwriting agreement), and (B) a "cold comfort" letter
signed by the independent public accountants who have issued a report
on the Acquiror's financial statements included in such registration
statement, covering substantially the same matters with respect to such
registration statement (and the prospectus included therein) and, in
the case of such accountants' letter, with respect to events subsequent
to the date of such financial statements, as are customarily covered in
opinions of issuer's counsel and in accountants' letters delivered to
underwriters in underwritten public offerings of securities and, in the
case of the accountants' letter, such other financial matters as such
sellers may reasonably request;
(vi) immediately notify each Series A Stockholder selling
Registrable Securities covered by such registration statement at any
time when a prospectus relating thereto is required to be delivered
under the Securities Act, of the happening of any event as a result of
which the prospectus included in such registration statement, as then
in effect, includes an untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the
circumstances then existing or if it is necessary to amend or
supplement such prospectus to comply with law, and at the
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request of any such Series A Stockholder prepare and furnish to such
Series A Stockholder a reasonable number of copies of a supplement to
or an amendment of such prospectus as may be necessary so that, as
thereafter delivered to the purchasers of such Registrable Securities
or securities, such prospectus shall not include an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in
the light of the circumstances then existing and shall otherwise comply
in all material respects with law and so that such prospectus, as
amended or supplemented, will comply with law;
(vii) otherwise use its reasonable best efforts to comply with
all applicable rules and regulations of the Commission, and make
available to its security holders, as soon as reasonably practicable,
an earnings statement covering the period of at least 12 months,
beginning with the first month of the first fiscal quarter after the
effective date of such registration statement, which earnings statement
shall satisfy the provisions of Section 11(a) of the Securities Act;
(viii) use its reasonable best efforts to list such securities
on each securities exchange on which Acquiror ADSs are then listed, if
such securities are not already so listed and if such listing is then
permitted under the rules of such exchange, and provide a transfer
agent and registrar for such Registrable Securities not later than the
effective date of such registration statement; and
(ix) issue to any underwriter to which any Series A
Stockholder may sell such Registrable Securities in connection with any
such registration (and to any direct or indirect transferee of any such
underwriter) certificates evidencing Acquiror ADSs.
The Acquiror may require each Series A Stockholder selling Registrable
Securities as to which any registration is being effected to furnish the
Acquiror with such information regarding such Series A Stockholder and the
distribution of such securities as the Acquiror may from time to time reasonably
request in writing and as shall be required by law or by the Commission in
connection therewith.
(b) If any registration pursuant to Section 3.01 shall be in
connection with an underwritten public offering, each Series A Stockholder whose
Registrable Securities are being registered agrees, if so required by the
managing underwriters, not to effect any public sale or distribution (including
any sale pursuant to Rule 144 under the Securities Act) of Registrable
Securities (other than as part of such underwritten public offering) within 5
U.S. business days prior to the effective date of the registration statement
with respect to such underwritten public offering or 180 days after the
effective date of such registration statement.
(c) The Acquiror agrees, if so required by the managing
underwriters in connection with an underwritten offering of Registrable
Securities pursuant to Section 3.01, not to effect any public sale or
distribution of any of its equity securities or securities convertible into or
exchangeable or exercisable for any of such equity securities during the 5 U.S.
business days prior to and the 180 days after the effective date of any
registration statement with respect to such underwritten public offering, except
as part of such
7
<PAGE>
underwritten offering or except in connection with a stock option plan, stock
purchase plan, savings or similar plan, or an acquisition, merger or exchange
offer.
(d) It is understood that in any underwritten offering of
Registrable Securities in addition to the shares (the "initial shares") the
underwriters have committed to purchase, the underwriting agreement may grant
the underwriters an option to purchase a number of additional shares (the
"option shares") equal to up to 15% of the initial shares (or such other maximum
amount as the National Association of Securities Dealers, Inc. may then permit),
solely to cover over-allotments. Acquiror ADSs proposed to be sold by the
Acquiror and the Company Stockholders shall be allocated between initial shares
and option shares as agreed or, in the absence of agreement, pursuant to Section
3.01(a)(ii). The number of initial shares and option shares to be sold by
requesting holders shall be allocated pro rata among all such Company
Stockholders on the basis of the relative number of Acquiror ADSs each such
holder has requested to be included and is permitted to include in such
registration. For purposes of this Agreement, the term "Company Stockholders"
shall mean, collectively, (i) the Stockholders (as defined in the Voting and
Registration Rights Agreement dated as of the date hereof between the Acquiror
and certain holders of common stock, par value $0.0001 per share, of the
Company) and (ii) the Series A Stockholders.
SECTION 3.03. Preparation; Reasonable Investigation. In
connection with the preparation and filing of each registration statement
registering Registrable Securities under the Securities Act, the Acquiror will
give the Series A Stockholders on whose behalf such Registrable Securities are
to be so registered and their underwriters, if any, and their respective counsel
and accountants, the opportunity to participate in the preparation of such
registration statement, each prospectus included therein or filed with the
Commission, and each amendment thereof or supplement thereto, and will give each
of them such access to its books and records and such opportunities to discuss
the business of the Acquiror with its officers and the independent public
accountants who have issued a report on its financial statements as shall be
necessary, in the opinion of such holders and such underwriters or their
respective counsel, to conduct a reasonable investigation within the meaning of
the Securities Act.
SECTION 3.04. Indemnification. (a) In the event of any
registration of any equity securities of the Acquiror under the Securities Act,
the Acquiror will, and hereby does, indemnify and hold harmless, in the case of
any registration statement filed pursuant to Section 3.01, the Series A
Stockholder selling any Registrable Securities covered by such registration
statement, its directors, officers, employees, agents, trustees, other
fiduciaries, members, general and limited partners (and directors, officers,
employees and agents thereof and, if such seller is a portfolio or investment
fund, its investment advisors), each other Person who participates as an
underwriter in the offering or sale of such securities, each officer and
director of each such underwriter, each Person, if any, who controls the
Acquiror and is not a seller of any Registrable Securities covered by such
registration statement and each other Person, if any, who controls such seller,
such underwriter or any such non-selling controlling Person within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act against
any losses, claims, damages, liabilities and expenses, joint or several, to
which such seller or any such director, officer, employee, agent, trustee or
other fiduciary or participating or controlling Person may become subject under
the Securities Act or
8
<PAGE>
otherwise, insofar as such losses, claims, damages, liabilities or expenses (or
actions or proceedings in respect thereof) arise out of or are based upon (i)
any untrue statement under which such securities were registered under the
Securities Act, any preliminary prospectus, final prospectus or summary
prospectus included therein, or any amendment or supplement thereto, or any
document incorporated by reference therein, or (ii) any omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and the Acquiror will reimburse such seller,
and each such director, officer, employee, agent, trustee, other fiduciary,
underwriter and controlling Person for any legal or any other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, liability, action or proceeding; provided, however, that the
Acquiror shall not be liable in any such case to the extent that any such loss,
claim, damage, liability (or action or proceeding in respect thereof) or expense
arises out of or is based upon (i) an untrue statement or omission made in such
registration statement, any such preliminary prospectus, final prospectus,
summary prospectus, amendment or supplement in reliance upon and in conformity
with written information furnished to the Acquiror for use in the preparation
thereof by such seller, underwriter or non-selling controlling Person, as the
case may be, or (ii) an untrue statement or omission made in any preliminary
prospectus but notified to such seller and underwriter prior to any sale of
Registrable Securities and subsequently corrected by the Acquiror in any final
prospectus, amendment or supplement made available to such seller or underwriter
but which final prospectus, amendment or supplement was not used by such seller
or underwriter in the sale of Registrable Securities that gave rise to such
loss, claim, damage, liability (or action or proceeding in respect thereof).
Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of such seller or any such director, officer,
employee, agent, trustee, other fiduciary, underwriter or controlling Person and
shall survive the transfer of such securities by such seller.
(b) The Acquiror may require, as a condition to including any
Registrable Securities in any registration statement filed pursuant to Section
3.01, that the Acquiror shall have received an undertaking satisfactory to it
from (i) the prospective seller of such securities, to indemnify and hold
harmless (in the same manner and to the same extent as set forth in Section
3.04(a)) the Acquiror, each such underwriter of such securities, each officer
and director of each such underwriter and each other Person, if any, who
controls the Acquiror or any such underwriter within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act, and (ii) each such
underwriter of such securities, to indemnify and hold harmless (in the same
manner and to the same extent as set forth in Section 3.04(a)) the Acquiror,
each officer and director of the Acquiror, each prospective seller, each officer
and director or each prospective seller and each other Person, if any, who
controls the Acquiror or any such prospective seller within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, with respect
to any statement in or omission from such registration statement, any
preliminary prospectus, final prospectus or summary prospectus included therein,
or any amendment or supplement thereto, if such statement or omission was made
in reliance upon and in conformity with written information furnished by such
prospective seller or such underwriter, as the case may be, to the Acquiror for
use in the preparation of such registration statement, preliminary prospectus,
final prospectus, summary prospectus, amendment or supplement. Such indemnity
shall remain in full force and effect regardless of any investigation made by or
on behalf of the Acquiror or
9
<PAGE>
any such director, officer or controlling Person and shall survive the transfer
of such securities by such seller.
(c) Promptly after receipt by an indemnified party of notice
of the commencement of any action or proceeding (including any governmental
investigation) involving a claim referred to in Section 3.04(a) or (b), such
indemnified party will, if a claim in respect thereof is to be made against an
indemnifying party, give written notice to the latter of the commencement of
such action; provided, however, that the failure of any indemnified party to
give notice as provided herein shall not relieve the indemnifying party of such
indemnifying party's obligations under the preceding provisions of this Section
3.04, except to the extent that the indemnifying party is actually prejudiced by
such failure to give notice. In case any such action is brought against an
indemnified party, unless in such indemnified party's reasonable judgment a
conflict of interest between such indemnified and indemnifying parties may exist
in respect of such claim (in which case, the indemnifying party shall not be
liable for the fees and expenses of more than one counsel for all sellers of
Acquiror ADSs, or more than one counsel for the underwriters in connection with
any one action or separate but similar or related actions), the indemnifying
party will be entitled to participate in and to assume the defense thereof,
jointly with any other indemnifying party similarly notified, to the extent that
such indemnifying party may wish with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party of such indemnifying party's election so to assume the defense
thereof, the indemnifying party will not be liable to such indemnified party for
any legal or other expenses subsequently incurred by the latter in connection
with the defense thereof.
SECTION 3.05. Contribution. (a) If the indemnification
provided for in Section 3.04 is unavailable to the indemnified parties in
respect of any losses, claims, damages or liabilities referred to therein, then
each indemnifying party and the Acquiror shall contribute to the amounts paid or
payable by such indemnified parties as a result of such losses, claims, damages
or liabilities (i) as between the Acquiror and the Series A Stockholders selling
Registrable Securities covered by a registration statement, on the one hand, and
the underwriters, on the other, in such proportion as is appropriate to reflect
the relative benefits received by the Acquiror and such Series A Stockholders,
on the one hand, and the underwriters, on the other, from the offering of the
Registrable Securities, or if such allocation is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits but also the relative fault of the Acquiror and such Series A
Stockholders, on the one hand, and of the underwriters, on the other, in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations, and (ii) as between the Acquiror, on the one hand, and each
Series A Stockholder selling Registrable Securities covered by a registration
statement, on the other, in such proportion as is appropriate to reflect the
relative fault of the Acquiror and of each such Series A Stockholder in
connection with such statements or omissions, as well as any other relevant
equitable considerations. The relative benefits received by the Acquiror and
such Series A Stockholders, on the one hand, and the underwriters, on the other,
shall be deemed to be in the same proportion as the total proceeds from the
offering (net of underwriting discounts and commissions but before deducting
expenses) received by the Acquiror and such Series A Stockholders bear to the
total underwriting discounts and commissions received by the underwriters. The
relative fault of
10
<PAGE>
the Acquiror and such Series A Stockholders, on the one hand, and of the
underwriters, on the other, shall be determined by reference to, among other
things, whether the untrue statement of a material fact or the omission to state
a material fact relates to information supplied by the Acquiror and such Series
A Stockholders or by the underwriters. The relative fault of the Acquiror, on
the one hand, and of each such Series A Stockholder, on the other, shall be
determined by reference to, among other things, whether the untrue statement of
a material fact relates to information supplied by such party, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
(b) The Acquiror and the Series A Stockholders selling
Registrable Securities covered by a registration statement agree that it would
not be just and equitable if contribution pursuant to this Section 3.05 were
determined by pro rata allocation (even if the underwriters were treated as one
entity for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 3.05, no underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Registrable Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages that
such underwriter has otherwise been required to pay by reason of such untrue
statement or omission, and no such Series A Stockholder shall be required to
contribute any amount in excess of the amount by which the total price at which
the Registrable Securities of such Series A Stockholder were offered to the
public exceeds the amount of any damages that such Series A Stockholder has
otherwise been required to pay by reason of such untrue statement or omission.
No person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. Each Series A
Stockholder's obligation to contribute pursuant to this Section 3.05 is several
in the proportion that the proceeds of the offering received by such Series A
Stockholder bears to the total proceeds of the offering received by all the
Company Series A Stockholders and not joint.
SECTION 3.06. Nominees of Beneficial Owners. In the event that
any Registrable Securities are held by a nominee for a Series A Stockholder, the
Series A Stockholder, as the beneficial owner thereof, may, at its election, be
treated as the holder of such Registrable Securities for purposes of any request
or other action by any Series A Stockholder pursuant to this Agreement or any
determination of any number or percentage of shares of Registrable Securities
held by any Series A Stockholder contemplated by this Agreement. If the
beneficial owner of any Registrable Securities so elects, the Acquiror may
require assurances reasonably satisfactory to it of such owner's beneficial
ownership of such Registrable Securities.
11
<PAGE>
ARTICLE IV
MISCELLANEOUS
SECTION 4.01. Termination. (a) This Agreement will terminate
upon the earliest to occur of (i) the termination of the Merger Agreement in
accordance with its terms or (ii) the Effective Time; provided, however, that
(A) the provisions of Sections 3.01, 3.02, 3.03 and 3.06 will survive until the
first anniversary of the date of consummation of the Merger and (B) the
provisions of Sections 3.04 and 3.05 will survive for the period of the relevant
statute of limitations from the date of the first registration statement filed
by the Acquiror which is subject to Section 3.01.
(b) Notwithstanding the provisions of Section 4.01(a) of this
Agreement, each Stockholder may terminate this Agreement with respect to itself
at any time after October 31, 2000 by giving written notice to the Acquiror if,
as of the date of such termination, (i) the Merger Agreement shall not have been
terminated in accordance with its terms, (ii) the Effective Time shall not have
occurred, (iii) the Company shall have failed to pay dividends on the Series A
Preferred Stock in accordance with the terms of the Certificate of Designation
(the "Dividend Default"), (iv) the Stockholder shall have given written notice
of the Dividend Default and of its intention to terminate this Agreement (the
"Default Notice") to the Company and the Acquiror and (v) the Company shall not
have cured the Dividend Default within 30 days of its and the Acquiror's receipt
of the Default Notice.
(c) Upon termination of this Agreement pursuant to Section
4.01(a) or 4.01(b), no party will have any further obligations or liabilities
hereunder, provided that no such termination will relieve any party from
liability for any breach of this Agreement prior to such termination.
SECTION 4.02. Expenses. Except as otherwise specified in this
Agreement, all costs and expenses, including, without limitation, fees and
disbursements of counsel, financial advisors and accountants, incurred in
connection with this Agreement and the transactions contemplated hereby shall be
paid by the party incurring such costs and expenses.
SECTION 4.03. Notices. All notices, requests, claims, demands
and other communications hereunder shall be in writing and shall be given or
made (and shall be deemed to have been duly given or made upon receipt) by
delivery in person, by courier service, by cable, by telecopy, by telegram, by
telex or by registered or certified mail (postage prepaid, return receipt
requested) the respective parties at the following addresses (or at such other
address for a party as shall be specified in a notice given in accordance with
this Section 4.03):
(a) if to a Series A Stockholder:
to the address set forth on Schedule A hereto
with a copy to the additional address set forth on
Schedule A hereto
12
<PAGE>
(b) if to the Acquiror:
CE Computer Equipment AG
Herforder Stra e 155A
33609 Bielefeld
Germany
Telecopy: +49 521 931 8111
Attention: Thomas Wenzke
with a copy to:
Shearman & Sterling
Broadgate West
9 Appold Street
London EC2A 2AP
United Kingdom
Telecopy: +44-20-7655-5500
Attention: W. Jeffrey Lawrence
SECTION 4.04. Headings. The descriptive headings contained in
this Agreement are for convenience of reference only and shall not affect in any
way the meaning or interpretation of this Agreement.
SECTION 4.05. Severability. If any term or other provision of
this Agreement is invalid, illegal or incapable of being enforced by any law or
public policy, all other terms and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in an acceptable manner in
order that the transactions contemplated hereby are consummated as originally
contemplated to the greatest extent possible.
SECTION 4.06. Entire Agreement. This Agreement constitutes the
entire agreement of the parties hereto with respect to the subject matter hereof
and supersedes all prior agreements and undertakings, both written and oral,
between the Acquiror, on the one hand, and the Series A Stockholders, on the
other hand, with respect to the subject matter hereof.
SECTION 4.07. Assignment. This Agreement may not be assigned
by operation of law or otherwise without the express written consent of the
Acquiror and each Series A Stockholder (which consent may be granted or withheld
in the sole discretion of each of the parties hereto), except that the Acquiror
may assign this Agreement to an affiliate without the consent of any Series A
Stockholder; provided, however that no such assignment shall relieve the
Acquiror of its obligations hereunder if such assignee does not perform such
obligations.
13
<PAGE>
SECTION 4.08. No Third Party Beneficiaries. This Agreement
shall be binding upon and inure solely to the benefit of the parties hereto and
their permitted assigns and nothing herein, express or implied, is intended to
or shall confer upon any other person or entity any legal or equitable right,
benefit or remedy of any nature whatsoever under or by reason of this Agreement.
SECTION 4.09. Amendment. This Agreement may not be amended or
modified except by an instrument in writing signed by, or on behalf of, each of
the parties hereto.
SECTION 4.10. Governing Law. This Agreement shall be governed
by the laws of the State of Delaware, excluding (to the greatest extent
permissible by law) any rule of law that would cause the application of the laws
of any jurisdiction other than the State of Delaware. All actions and
proceedings arising out of or related to this Agreement shall be heard and
determined in any Delaware state or federal court sitting in Delaware.
SECTION 4.11. Counterparts. This Agreement may be executed in
one or more counterparts, and by the different parties hereto in separate
counterparts, each of which when executed shall be deemed to be an original but
all of which taken together shall constitute one and the same agreement.
SECTION 4.12. Specific Performance. The parties hereto agree
that irreparable damage would occur in the event any provision of this Agreement
was not performed in accordance with the terms hereof and that the parties shall
be entitled to specific performance of the terms hereof, in addition to any
other remedy at law or equity.
SECTION 4.13. Definitions. Capitalized terms used and not
defined herein will have the meaning set forth in the Merger Agreement.
SECTION 4.14. Obligations of Series A Stockholders. The
obligations of the Series A Stockholders hereunder will be "several" and not
"joint" or "joint and several." Without limiting the generality of the
foregoing, under no circumstances will any Series A Stockholder have any
liability or obligation with respect to any misrepresentation or breach of
covenant of any other Series A Stockholder.
SECTION 4.15. Further Assurances. The Acquiror and each Series
A Stockholder will execute and deliver all such further documents and
instruments and take all such further action as may be necessary in order to
consummate the transactions contemplated hereby.
SECTION 4.16. Waiver of Jury Trial. Each of the parties hereto
irrevocably and unconditionally waives all right to trial by jury in any action,
proceeding or counterclaim (whether based in contract, tort or otherwise)
arising out of or relating to this Agreement or the actions of the parties
hereto in the negotiation, administration, performance and enforcement thereof.
14
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto have caused
this Agreement to be duly executed as of the date first written above.
CE Computer Equipment AG
/s/ Thomas Wenzke
--------------------------------------
Name: Thomas Wenzke
Title: Member of the Management
Board
GREEN-COHN GROUP
/s/ Van D. Greenfield
--------------------------------------
LB SERIES FUND, INC., HIGH
YIELD PORTFOLIO
/s/ Paul Ocenasek
--------------------------------------
By: Lutheran Brotherhood, a Minnesota
Corporation
Its: Investment Adviser
GENE T. PRETTI
/s/ Gene T. Pretti
--------------------------------------
ZAZOVE AGGRESSIVE GROWTH
FUND, L.P.
/s/ Steven Kleiman
--------------------------------------
ZAZOVE CONVERTIBLE
SECURITIES FUND, INC.
/s/ Steven Kleiman
--------------------------------------
ZAZOVE GLOBAL CONVERTIBLE
FUND, L.P.
/s/ Steven Kleiman
--------------------------------------
<PAGE>
ZAZOVE HIGH YIELD
CONVERTIBLE SECURITIES FUND,
L.P.
/s/ Steven Kleiman
--------------------------------------
<PAGE>
Schedule A
<TABLE>
<CAPTION>
Shares of
Series A
Series A Stockholder Preferred
Beneficial Owner Name and Address Stock Copy of Notice to
---------------- ---------------- ----- -----------------
<S> <C> <C> <C>
Green-Cohn Green-Cohn Group 487,581 Robert L. Kohl, Esq.
Group 360 E. 88th Street Rosenman & Colin LLP
New York, NY 10128 575 Madison Avenue
New York, NY 10022
Lutheran Lutheran Brotherhood 259,300 Lutheran Brotherhood
Brotherhood 625 Fourth Avenue South 625 Fourth Avenue South
Minneapolis, MN 55415 Minneapolis, MN 55415
Attention: Legal
Department
Telecopy: +1 (612) 371-
1581
Zazove Associates Zazove Associates LLC 361,900 Zazove Associates LLC
LLC 940 Southwood 4801 W. Peterson
Boulevard Suite 615
Incline Village, Nevada Chicago, IL 60646
89451 Attention: Steve Kleiman
</TABLE>
A - 1
<PAGE>
Exhibit 30
TREEV, INC.
13900 Lincoln Park Drive
Herndon, Virginia 20171
August 22, 2000
Green-Cohn Group
360 East 88th Street
New York, New York 10128
TREEV, Inc./CE Computer Equipment AG
Ladies and Gentlemen:
Reference is made to (1) the Series A Preferred Stock
Agreement, dated as of the date hereof, among CE Computer Equipment AG, an
Aktiengesellschaft organized and existing under the laws of the Federal Republic
of Germany ("CE"), you and the other parties identified on Schedule A thereto
(the "Series A Agreement"), (2) the Amended and Restated Agreement and Plan of
Merger between CE and TREEV, Inc. ("TREEV"), dated as of November 19, 1999 and
amended and restated as of May 8, 2000 (the "Merger Agreement") and (3) the
Certificate of Amendment to Certificate of Designations of Series A Cumulative
Convertible Preferred Stock of Network Imaging Corporation (the former name of
TREEV) (the "Certificate of Designations").
In consideration of the foregoing, TREEV hereby agrees that,
for so long as you are in compliance with the Series A Agreement, TREEV will not
exercise its right to redeem shares of Series A Preferred Stock (as defined in
the Certificate of Designations) pursuant to Section 6 ("Exchange") of the
Certificate of Designations; provided, however, that TREEV's obligations
hereunder shall terminate upon the earlier to occur of (1) the termination of
the Merger Agreement and (2) the consummation of the merger contemplated
thereby.
<PAGE>
Please confirm that the foregoing correctly sets forth our
agreement by signing this letter agreement in the space provided below.
Very truly yours,
TREEV, INC.
By: /s/ Julia A. Bowen
---------------------------------------
Name: Julia A. Bowen
Title: Vice President and General
Counsel
Agreed and Acknowledged:
CE COMPUTER EQUIPMENT AG
/s/ Thomas Wenzke
-------------------------------
Thomas Wenzke
Member of the Management Board
<PAGE>
Exhibit 31
TREEV, INC.
13900 Lincoln Park Drive
Herndon, Virginia 20171
August 22, 2000
Lutheran Brotherhood
625 Fourth Avenue South
Minneapolis, Minnesota 55415
TREEV, Inc./CE Computer Equipment AG
Ladies and Gentlemen:
Reference is made to (1) the Series A Preferred Stock
Agreement, dated as of the date hereof, among CE Computer Equipment AG, an
Aktiengesellschaft organized and existing under the laws of the Federal Republic
of Germany ("CE"), you and the other parties identified on Schedule A thereto
(the "Series A Agreement"), (2) the Amended and Restated Agreement and Plan of
Merger between CE and TREEV, Inc. ("TREEV"), dated as of November 19, 1999 and
amended and restated as of May 8, 2000 (the "Merger Agreement") and (3) the
Certificate of Amendment to Certificate of Designations of Series A Cumulative
Convertible Preferred Stock of Network Imaging Corporation (the former name of
TREEV) (the "Certificate of Designations").
In consideration of the foregoing, TREEV hereby agrees that,
for so long as you are in compliance with the Series A Agreement, TREEV will not
exercise its right to redeem shares of Series A Preferred Stock (as defined in
the Certificate of Designations) pursuant to Section 6 ("Exchange") of the
Certificate of Designations; provided, however, that TREEV's obligations
hereunder shall terminate upon the earlier to occur of (1) the termination of
the Merger Agreement and (2) the consummation of the merger contemplated
thereby.
<PAGE>
Please confirm that the foregoing correctly sets forth our
agreement by signing this letter agreement in the space provided below.
Very truly yours,
TREEV, INC.
By: /s/ Julia A. Bowen
---------------------------------------
Name: Julia A. Bowen
Title: Vice President and General
Counsel
Agreed and Acknowledged:
CE COMPUTER EQUIPMENT AG
/s/ Thomas Wenzke
------------------------------
Thomas Wenzke
Member of the Management Board
<PAGE>
Exhibit 32
TREEV, INC.
13900 Lincoln Park Drive
Herndon, Virginia 20171
August 22, 2000
Zazove Associates LLC
940 Southwood Boulevard
Incline Village, Nevada 89451
TREEV, Inc./CE Computer Equipment AG
Ladies and Gentlemen:
Reference is made to (1) the Series A Preferred Stock
Agreement, dated as of the date hereof, among CE Computer Equipment AG, an
Aktiengesellschaft organized and existing under the laws of the Federal Republic
of Germany ("CE"), you and the other parties identified on Schedule A thereto
(the "Series A Agreement"), (2) the Amended and Restated Agreement and Plan of
Merger between CE and TREEV, Inc. ("TREEV"), dated as of November 19, 1999 and
amended and restated as of May 8, 2000 (the "Merger Agreement") and (3) the
Certificate of Amendment to Certificate of Designations of Series A Cumulative
Convertible Preferred Stock of Network Imaging Corporation (the former name of
TREEV) (the "Certificate of Designations").
In consideration of the foregoing, TREEV hereby agrees that,
for so long as you are in compliance with the Series A Agreement, TREEV will not
exercise its right to redeem shares of Series A Preferred Stock (as defined in
the Certificate of Designations) pursuant to Section 6 ("Exchange") of the
Certificate of Designations; provided, however, that TREEV's obligations
hereunder shall terminate upon the earlier to occur of (1) the termination of
the Merger Agreement and (2) the consummation of the merger contemplated
thereby.
<PAGE>
Please confirm that the foregoing correctly sets forth our
agreement by signing this letter agreement in the space provided below.
Very truly yours,
TREEV, INC.
By: /s/ Julia A. Bowen
---------------------------------------
Name: Julia A. Bowen
Title: Vice President and General
Counsel
Agreed and Acknowledged:
CE COMPUTER EQUIPMENT AG
/s/ Thomas Wenzke
------------------------------
Thomas Wenzke
Member of the Management Board
