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Amendment No. 1, Dated
as of November 20, 2000,
to the Amended and Restated Agreement
and Plan of Merger between
CE Computer Equipment AG and TREEV, Inc.,
dated as of November 19, 1999 and
amended and restated as of May 8, 2000
Amendment No. 1, dated as of November 20, 2000 (this
"Amendment"), to the Amended and Restated Agreement and Plan of Merger between
CE Computer Equipment AG ("Parent") and TREEV, Inc. (the "Company"), dated as of
November 19, 1999 and amended and restated as of May 8, 2000 (the "Merger
Agreement").
Preliminary Statements
Parent and the Company are parties to the Merger Agreement.
Capitalized terms not otherwise defined herein have the same meanings as
specified in the Merger Agreement.
Parent and the Company desire to amend the Merger Agreement as
described herein.
In consideration of the foregoing and the mutual covenants and
agreements herein contained, and intending to be legally bound hereby, Parent
and the Company hereby agree as follows:
1. Contribution Agent; Formation of Merger Sub. From and after the date
hereof, Section 1.01 of the Merger Agreement shall be amended in full to read as
follows:
"Parent shall appoint a contribution agent in connection with
the Share Exchange (as defined below) and the delivery of the
Parent Ordinary Shares (as defined below) to former
stockholders, optionholders and warrantholders of the Company
(the "Contribution Agent"). Parent shall enter into a
Contribution Agent Agreement with the Contribution Agent in
form and substance reasonably satisfactory to Parent and the
Company, which agreement shall set forth the duties,
responsibilities and obligations of the Contribution Agent
consistent with the terms of this Agreement. Following the
execution of such Contribution Agent Agreement, the
Contribution Agent shall cause to be incorporated pursuant to
the DGCL a corporation which shall be a constituent company in
the Merger (the "Merger Sub") and which shall not transact any
business other than participating in the Merger as described
herein. Solely to accommodate the transactions described in
this Article I and Article II, the Contribution Agent shall
hold, as the agent of Parent, all the issued and outstanding
shares of common stock, par value $.01 per share, of the
Merger Sub (the "Merger Sub Common Stock")."
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2. Effective Time; Closing. From and after the date hereof, the first
sentence of Section 1.03 of the Merger Agreement shall be amended in full to
read as follows:
"As soon as possible after the expiration of the Option and
Warrant Exchange, the parties hereto shall cause the Merger to
be consummated by filing a Certificate of Merger (the
"Certificate of Merger") with the Secretary of State of the
State of Delaware in such form as is required by, and executed
in accordance with, the relevant provisions of the DGCL;
provided, however, that the Merger shall not be consummated
and the Certificate of Merger shall not be filed prior to
January 1, 2001."
3. Officers. From and after the date hereof, Exhibit A of the Merger
Agreement shall be amended in full to read as set forth in Annex 1 hereto.
4. Share Exchange; Conversion of Securities; Exchange of Certificates.
From and after the date hereof, Article II of the Merger Agreement shall be
amended in full to read as follows:
"ARTICLE II
SHARE EXCHANGE; CONVERSION OF SECURITIES; EXCHANGE OF
CERTIFICATES
SECTION 2.01. The Share Exchange. Consistent with the terms of
this Agreement, as soon as possible after the Effective Time, the Contribution
Agent shall contribute, for the account of the former stockholders of the
Company all of the issued and outstanding shares of Surviving Corporation Common
Stock (as defined below) to Parent as a transfer-in-kind, and Parent shall issue
the Parent Ordinary Shares (as defined below) to be issued in connection with
the Merger and the Option and Warrant Exchange (the "Merger Consideration") and
shall cause the Merger Consideration to be delivered to the Exchange Agent (as
defined below) for the account of the Contribution Agent and for the benefit of
the former stockholders of the Company and the former Company Optionholders and
Company Warrantholders who validly accept the Option and Warrant Exchange (the
"Share Exchange"). Subject to Section 6.14, the Share Exchange shall be effected
in accordance with ss.ss. 203, 185 et seq. (including in particular ss. 187) of
the German Stock Corporation Law (Aktiengesetz) by registering the
implementation of the increase of the stated share capital of Parent with the
commercial register (Handelsregister) for Parent. At the Effective Time, the
obligation of the parties to effect the Share Exchange shall be unconditional
(it being understood that Parent's obligation to effect the aforementioned
capital increase shall be conditioned on the completion of the Contribution
Agent's transfer-in-kind of the shares of Surviving Corporation Common Stock).
SECTION 2.02. Conversion of Company Common Stock and Series A
Preferred Stock. At the Effective Time, by virtue of the Merger and without any
action on the part of the Merger Sub, the Company or the holders of any share of
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Company Common Stock or of any share of Series A Cumulative Convertible
Preferred Stock, par value $.0001 per share, of the Company (the "Series A
Preferred Stock"), the outstanding Company Common Stock and Series A Preferred
Stock shall be converted as follows:
(a) each share of Company Common Stock held in the treasury of
the Company or owned by Parent or any direct 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;
(b) each share of Series A Preferred Stock issued and outstanding
immediately prior to the Effective Time shall be converted,
subject to Section 2.05, into the right to receive the greater of
(the "Series A Preferred Stock Exchange Ratio") (i) that number
of Parent American Depositary Shares ("Parent ADSs"), each
representing one ordinary share, without par value, of Parent
(the "Parent Ordinary Shares"), equal to $10.00 divided by the
Parent Average Closing Price (as defined below) and (ii) that
number of Parent ADSs equal to a fraction (x) the numerator of
which is the sum of (A) 0.84 plus (B) 1.20 multiplied by the
product of (1) 1.92 and (2) the average closing price per share
of Company Common Stock as reported on the NASDAQ National Market
System ("NASDAQ") during the period commencing on the 17th
trading day prior to the Company Stockholders' Meeting and ending
on the third trading day prior to the Company Stockholders'
Meeting (the "Determination Period"), and (y) the denominator of
which is the Parent Average Closing Price (it being understood
and agreed that any share of Series A Preferred Stock held by a
person who is an affiliate (as defined under the Securities Act)
of the Company at the record date for the Company Stockholders'
Meeting or who is an affiliate (as defined under the Securities
Act) of Parent will not be converted into the right to receive
Parent ADSs, but will instead be converted into the right to
receive an equal number of Parent Ordinary Shares). For purposes
of this Section 2.02 and Section 2.04, the "Parent Average
Closing Price" shall be the average closing price per Parent
Ordinary Share as reported on the Neuer Markt segment of the
Frankfurt Stock Exchange (the "Neuer Markt") during the
Determination Period converted into U.S. dollars at the average
noon buying rate in New York City for cable transfers in Euros as
certified for customs purposes by the Federal Reserve Bank of New
York during the Determination Period;
(c) each share of Company Common Stock issued and outstanding
immediately prior to the Effective Time shall be converted,
subject to Section 2.05, into the right to receive that number of
Parent ADSs (the "Common Stock Exchange Ratio") equal to a
fraction (i) the numerator of which is 6,650,000 (which number
takes into account Parent's one-to-five stock split approved on
August 2, 2000) less the maximum aggregate number of Parent
Ordinary Shares and Parent ADSs issuable pursuant to paragraph
(b) of this Section 2.02 and paragraphs (a)(ii) and (b) of
Section 2.04 and (ii) the denominator of which is the number of
shares of Company Common Stock issued and outstanding immediately
prior to the Effective Time (it being understood and agreed that
any share of Company Common Stock held by a person who is an
affiliate (as defined under the Securities Act) of the Company at
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the record date for the Company Stockholders' Meeting or who is
an affiliate (as defined under the Securities Act) of Parent will
not be converted into the right to receive Parent ADSs, but will
instead be converted into the right to receive an equal number of
Parent Ordinary Shares);
(d) each share of Merger Sub Common Stock issued and outstanding
immediately prior to the Effective Time shall be converted into
and exchanged for one validly issued, fully paid and
nonassessable share of common stock, par value $.01 per share, of
the Surviving Corporation ("Surviving Corporation Common Stock");
(e) to the extent that any person would otherwise be entitled to
receive a fraction of a Parent Ordinary Share or Parent ADS
pursuant to this Section 2.02, such fraction shall be treated in
accordance with Section 2.06; and
(f) in no event shall the aggregate number of Parent Ordinary
Shares and Parent ADSs issuable in connection with the Merger,
the Share Exchange and the Option and Warrant Exchange exceed
6,650,000.
SECTION 2.03. Exchange of Shares of Company Common Stock and Series A
Preferred Stock.
(a) Exchange Fund. Parent shall, for the account of the Contribution Agent,
deposit with a bank or trust company designated by Parent (the "Exchange
Agent"), for the benefit of the former stockholders of the Company and the
former Company Optionholders and Company Warrantholders who have validly
accepted the Option and Warrant Exchange, for exchange in accordance with
this Article II, certificates representing the Merger Consideration to
which the Contribution Agent shall have become entitled pursuant to the
Share Exchange. The Contribution Agent shall direct the Exchange Agent to
distribute to each such former Company Optionholder and Company
Warrantholder the Merger Consideration allocable to such holder pursuant to
the Option and Warrant Exchange. The aggregate Merger Consideration issued
by Parent in connection with the Merger and transferred to the Exchange
Agent for the account of the Contribution Agent, pursuant to Section 2.01
and this Section 2.03 (excluding the Merger Consideration referred to in
the preceding sentence), together with any dividends or other distributions
with respect to Parent Ordinary Shares to be made pursuant to Section
2.03(c), is referred to herein as the "Exchange Fund".
(b) Exchange Procedures. Promptly after the Effective Time, the Exchange
Agent will mail to each record holder of shares of Company Common Stock and
each record holder of shares of Series A Preferred Stock immediately prior
to the Effective Time, a form of letter of transmittal which shall specify
that the delivery shall be effected, and risk of loss and title shall pass,
only upon proper delivery of a certificate or certificates formerly
evidencing shares of Company Common Stock or shares of Series A Preferred
Stock (together, the "Old Company Certificates") to the Exchange Agent and
instructions for use in effecting the surrender to the Exchange Agent of
Old Company Certificates in exchange for Parent ADSs or Parent Ordinary
Shares. The letter of transmittal shall contain such other terms and
conditions as Parent and the Company shall reasonably specify. Upon
surrender of an Old Company Certificate to the Exchange Agent, together
with a letter of transmittal duly executed and completed in accordance with
the instructions thereto, and any other documents reasonably required by
the Exchange Agent or Parent and the Company, (i) the holder of such Old
Company Certificate shall be
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entitled to receive in exchange therefor (x) (A) if such holder was an
affiliate of the Company at the record date for the Company Stockholders'
Meeting or will be an affiliate of Parent immediately after the Effective
Time, a certificate evidencing the number of whole Parent Ordinary Shares
and a check for cash in lieu of any fractional Parent Ordinary Shares into
which the shares of Company Common Stock or Series A Preferred Stock
previously evidenced by such Old Company Certificate shall have been
converted into the right to receive at the Effective Time or (B) if such
holder neither was an affiliate of the Company at the record date for the
Company Stockholders' Meeting nor will be an affiliate of Parent
immediately after the Effective Time, an American Depositary Receipt
("ADR") registered in the name of such holder evidencing the number of
whole Parent ADSs and a check for cash in lieu of any fractional Parent ADS
into which the shares of Company Common Stock or Series A Preferred Stock
previously evidenced by such Old Company Certificate shall have been
converted into the right to receive at the Effective Time and (y) if
applicable, a check payable to such holder representing the payment of any
dividends and distributions pursuant to Section 2.03(c), and (ii) such Old
Company Certificate shall forthwith be cancelled. If any cash is to be paid
to, or any certificate evidencing Parent Ordinary Shares or any ADR
evidencing Parent ADSs is to be issued in the name of, a person other than
the person in whose name the Old Company Certificate so surrendered in
exchange therefor is registered, it shall be a condition of the payment or
issuance that the Old Company Certificate so surrendered shall be properly
endorsed or otherwise in proper form for transfer and that the person
requesting such exchange shall pay any transfer or other taxes required by
reason of the payment of cash to, or the issuance of a certificate
evidencing Parent Ordinary Shares or an ADR evidencing Parent ADSs in the
name of, a person other than the registered holder of the Old Company
Certificate so surrendered or shall establish to the satisfaction of the
Exchange Agent and Parent that such tax has been paid or is not applicable.
Until surrendered in accordance with the provisions of this Section 2.03,
each Old Company Certificate shall, at and after the Effective Time,
represent for all purposes only the right to receive Parent Ordinary Shares
or Parent ADSs, cash in lieu of any fractional Parent Ordinary Share or
Parent ADS and any dividends and distributions as provided in Section
2.03(c), if any.
(c) Dividends; Distributions. No dividends or other distributions declared
after the Effective Time on Parent Ordinary Shares or Parent ADSs and
payable to the holders of record thereof after the Effective Time shall be
paid to the holder of any unsurrendered Old Company Certificates with
respect to which the Parent Ordinary Shares or Parent ADSs shall have been
issued in the Merger. All such dividends or other distributions shall be
paid to the Exchange Agent (on behalf of holders of unsurrendered Old
Company Certificates) and shall be included in the Exchange Fund, in each
case until such Old Company Certificates shall be surrendered as provided
herein, but (i) upon such surrender there shall be paid to the person in
whose name the certificates evidencing such Parent Ordinary Shares, or ADRs
evidencing such Parent ADSs, shall be issued and registered the amount of
dividends theretofore paid with respect to such Parent Ordinary Shares or
Parent ADSs as of any date subsequent to the Effective Time, and (ii) at
the appropriate payment date or as soon as practicable thereafter, there
shall be paid to such person the amount of dividends with a record date
after the Effective Time but prior to surrender and a payment date
subsequent to surrender payable with respect to such Parent Ordinary Shares
or Parent ADSs, subject in any case to any applicable abandoned property,
escheat and similar laws. No interest shall be payable with respect to the
payment of such dividends on the surrender of any outstanding Old Company
Certificates.
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(d) No Further Rights in Company Common Stock and Series A Preferred Stock.
All Parent Ordinary Shares (including those evidenced by Parent ADSs)
issued upon conversion of the Company Common Stock and the Series A
Preferred Stock in accordance with the terms hereof (including any cash
paid pursuant to Sections 2.03(b) and 2.03(c)) shall be deemed to have been
issued in full satisfaction of all rights pertaining to the Company Common
Stock and the Series A Preferred Stock.
(e) Transfer Books. After the Effective Time, there shall be no further
registration of transfers on the stock transfer books of the Surviving
Corporation of shares of Company Common Stock and shares of Series A
Preferred Stock which were outstanding immediately prior to the Effective
Time. If, after the Effective Time, Old Company Certificates are presented
to the Surviving Corporation, they shall be canceled and exchanged for ADRs
evidencing Parent ADSs (or certificates evidencing Parent Ordinary Shares)
or cash, or both, in accordance with the procedures set forth in this
Article II.
(f) Termination of Exchange Fund. Any portion of the Exchange Fund that
remains undistributed to the holders of the Old Company Certificates one
year after the Effective Time shall be delivered by the Exchange Agent to a
depositary bank designated by Parent, upon demand, whereupon such
depositary bank shall hold the Exchange Fund on behalf of holders of
unsurrendered Old Company Certificates, and any holders of the Old Company
Certificates who have not theretofore complied with this Section 2.03 shall
thereafter look only to Parent or such depositary bank for payment of their
claim for Merger Consideration and any dividends or distributions with
respect to Parent Ordinary Shares or Parent ADSs and Parent shall cause the
depositary bank to satisfy such claim. Such depositary bank shall maintain
an office in the City of New York where holders of Old Company Certificates
may comply with this Article II. No interest shall be paid in respect of
any property or amounts held in the Exchange Fund.
(g) Withholding Taxes. Each of the Exchange Agent and Parent shall be
entitled to deduct and withhold from the consideration otherwise payable
pursuant to this Agreement to any holder of Old Company Certificates, any
Company Optionholder (as defined below) or any Company Warrantholder (as
defined below) such property or amounts as it is required to deduct and
withhold with respect to the making of such payment under the Code, or any
provision of state, local or non-U.S. tax law. To the extent that any
property or amounts are so withheld by the Exchange Agent or Parent, as the
case may be, such withholdings shall be treated for all purposes of this
Agreement as having been paid to the holder of the Old Company Certificate,
the Company Stock Option (as defined below) or the Warrant (as defined
below) in respect of which such deduction and withholding was made by the
Exchange Agent or Parent, as the case may be.
(h) No Liability. None of Parent, the Surviving Corporation, the
Contribution Agent or the Exchange Agent shall be liable to any person in
respect of any Parent Ordinary Shares, Parent ADSs, any dividends or
distributions with respect to Parent Ordinary Shares or Parent ADSs or any
cash from the Exchange Fund, in each case properly delivered to a public
official pursuant to any applicable abandoned property, escheat or similar
law.
(i) Lost, Stolen Or Destroyed Certificates. If any Old Company Certificate
shall have been lost, stolen or destroyed, upon the making of an affidavit
of that fact by the person claiming such Old Company Certificate to be
lost, stolen or destroyed and, if required by the Surviving Corporation,
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the posting by such person of a bond in such reasonable amount as such
entity may direct as indemnity against any claim that may be made against
it with respect to such Old Company Certificate, the Exchange Agent shall
issue in exchange for such lost, stolen or destroyed Old Company
Certificate the appropriate number of Parent Ordinary Shares or Parent
ADSs, determined pursuant to Section 2.02, cash in lieu of any fractional
Parent Ordinary Share or Parent ADS and, if applicable, any unpaid
dividends and distributions on Parent Ordinary Shares deliverable in
respect thereof, in each case pursuant to this Agreement.
SECTION 2.04. Treatment of the Company Stock Plans and the
Warrants. (a) Subject to the consummation of the Merger, not later than
immediately prior to the Effective Time (i) the Company shall terminate the
Company Stock Plans (as defined below) and any other plan, program or
arrangement providing for the issuance, grant or purchase of any other interest
in respect of the capital stock of the Company without prejudice to the Company
Optionholders (as defined below); and (ii) the Company shall cause all amounts
currently held as cash in participant accounts under the Company's Employee
Stock Purchase Plan to be returned to the applicable participants and all
previously purchased shares of Company Common Stock held in such accounts to be
distributed to the applicable participants. Subject to the satisfaction or
waiver, if permitted by applicable law, of the conditions set forth in Article
VII, Parent and the Company shall take all actions necessary to provide that
each holder (a "Company Optionholder") of an employee stock option (each a
"Company Stock Option") that is outstanding immediately prior to the Effective
Time will be given the right to receive, in exchange for each such Company Stock
Option (whether or not then vested and exercisable), that fraction of a Parent
ADS (or, in the case of a Company Optionholder who was an affiliate (as defined
under the Securities Act) of the Company at the record date for the Company
Stockholders' Meeting or who will be an affiliate (as defined under the
Securities Act) of Parent immediately after the Effective Time, that fraction of
a Parent Ordinary Share) equal to the "fair value" of such Company Stock Option
(calculated as generally accepted using the "Black-Scholes" methodology, and as
agreed to in good faith by Parent and the Company), calculated as of the record
date for the Company Stockholders' Meeting, divided by the Parent Average
Closing Price (the "Option Exchange").
(b) Subject to the satisfaction or waiver, if permitted by
applicable law, of the conditions set forth in Article VII, Parent and the
Company shall take all actions necessary to provide that each holder (a "Company
Warrantholder") of a warrant to acquire Company Common Stock (each a "Warrant")
that is outstanding immediately prior to the Effective Time will be given the
right to receive, in exchange for each such Warrant (whether or not then
exercisable), that fraction of a Parent ADS (or, in the case of a Company
Warrantholder who was an affiliate (as defined under the Securities Act) of the
Company at the record date for the Company Stockholders' Meeting or who will be
an affiliate (as defined under the Securities Act) of Parent immediately after
the Effective Time, that fraction of a Parent Ordinary Share) equal to the "fair
value" of such Warrant (calculated as generally accepted using the
"Black-Scholes" methodology, and as agreed to in good faith by Parent and the
Company), calculated as of the record date for the Company Stockholders'
Meeting, divided by the Parent Average Closing Price (the "Warrant Exchange"
and, together with the Option Exchange, the "Option and Warrant Exchange").
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(c) To the extent that any person would otherwise be entitled
to receive a fraction of a Parent Ordinary Share or a Parent ADS pursuant to
this Section 2.04, such fraction shall be treated in accordance with Section
2.06.
SECTION 2.05. Antidilution Protection For Exchange Ratio. If,
between the date of Amendment No. 1 to this Agreement and the Effective Time,
the outstanding Parent Ordinary Shares or shares of Company Common Stock or
Series A Preferred Stock shall have been changed into a different number of
shares or a different class by reason of any reclassification, recapitalization,
stock split, combination or exchange of shares or a stock dividend or dividend
payable in any other securities shall be declared with a record date within such
period, or any similar event shall have occurred, the Common Stock Exchange
Ratio and the Series A Preferred Stock Exchange Ratio, as the case may be, shall
be appropriately adjusted to provide to the holders of Company Common Stock and
Series A Preferred Stock the same economic effect as contemplated by this
Agreement prior to such event.
SECTION 2.06. Treatment of Fractional Shares. (a) As promptly
as practicable following the Effective Time, the Exchange Agent will determine
the excess of (x) the aggregate number of Parent Ordinary Shares delivered to
the Exchange Agent over (y) the aggregate number of whole Parent Ordinary Shares
to be distributed (including those to be represented by Parent ADSs) in
connection with the Merger and the Option and Warrant Exchange (such excess
being referred to herein as the "Excess Shares"). Following the Effective Time
the Exchange Agent will, on behalf of the former Company stockholders, the
former Company Optionholders and the former Company Warrantholders, sell the
Excess Shares at then-prevailing prices on the Neuer Markt in the manner
provided in Section 2.06(b).
(b) The sale of the Excess Shares by the Exchange Agent will
be executed on the Neuer Markt through one or more member firms and will be
executed in round lots to the extent practicable. The Exchange Agent will use
reasonable efforts to complete the sale of the Excess Shares as promptly
following the Effective Time as, in its sole judgment, is practicable consistent
with obtaining the best execution of such sales in light of prevailing market
conditions. Until the net proceeds of such sale or sales have been distributed
to the former Company stockholders, the former Company Optionholders and the
former Company Warrantholders, the Exchange Agent will hold such proceeds in
trust for such holders (the "Company Shares Trust"). All commissions, transfer
taxes and other out-of-pocket transaction costs incurred in connection with such
sale of Excess Shares shall be deducted from the proceeds of such sale. The
Exchange Agent will determine the portion of the Company Shares Trust to which
each former holder of Company Common Stock or Series A Preferred Stock, each
former Company Optionholder and each former Company Warrantholder is entitled,
if any, by multiplying the amount of the aggregate net proceeds comprising the
Common Shares Trust by a fraction, the numerator of which is the amount of the
fractional share interest to which such former holder of Company Common Stock or
Series A Preferred Stock, such former Company Optionholder or such former
Company Warrantholder is entitled (after taking into account all such shares
held at the Effective Time and all such Company Stock Options and Warrants
surrendered in the Option and Warrant Exchange by such holder) and the
denominator of which is the aggregate amount of fractional share interests to
which all former holders of Company Common Stock or Series A Preferred Stock,
all former Company Optionholders and all former Company Warrantholders are
entitled pursuant to the Merger and the Option and Warrant Exchange.
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(c) As soon as practicable after the determination of the
amount of cash, if any, to be paid to former Company stockholders, the former
Company Optionholders and the former Company Warrantholders with respect to
fractional share interests, the Exchange Agent will make available such amounts
to such holders. The parties acknowledge that the payment of cash in lieu of the
issuance of fractional Parent Ordinary Shares and Parent ADSs is not separately
bargained for consideration but merely represents a mechanical rounding off to
avoid the administrative and accounting issues that may be caused by the
issuance of fractional Parent Ordinary Shares and Parent ADSs."
5. Additional Agreements. From and after the date hereof:
(a) Section 6.03(f) of the Merger Agreement shall be amended in full to
read as follows:
"Parent shall cause the Option and Warrant Exchange to be
commenced promptly after the F-4 Registration Statement has
been declared effective by the SEC and shall use all
reasonable efforts to cause the Option and Warrant Exchange to
be consummated not later than immediately prior to the
Effective Time; provided, however, that the Effective Time
shall not occur prior to the expiration of the Option and
Warrant Exchange. Parent shall cause the Option and Warrant
Exchange to be commenced by causing the Proxy Statement and
related documents to be mailed to each Company Optionholder
and Company Warrantholder, and the Proxy Statement shall
state, in addition to such other disclosures as are required
by applicable Law: (i) that all Company Stock Options and
Warrants validly tendered will be accepted for exchange; (ii)
the dates of acceptance for exchange (which shall be a period
of at least 20 U.S. business days from the date the Option and
Warrant Exchange is commenced) (the "Offer Period"); and (iii)
that any Company Stock Option or Warrant not tendered will
remain outstanding or otherwise be treated in accordance with
its terms. As soon as practicable after the expiration of the
Offer Period, Parent shall (i) cause to be accepted for
exchange all Company Stock Options or Warrants tendered and
not validly withdrawn pursuant to the Exchange Offer and (ii)
cause to be canceled all Company Stock Options or Warrants so
accepted for exchange by Parent. No fractional Parent Ordinary
Shares or Parent ADSs shall be issued in connection with the
Option and Warrant Exchange. The Option and Warrant Exchange
shall be subject to, and the Offer Period shall not expire
prior to, the satisfaction or, if permitted by applicable Law,
waiver of the conditions set forth in Article VII; provided,
however, that the Offer Period shall not expire prior to
January 1, 2001."
(b) Exhibits C, D and E of the Merger Agreement shall be amended in full to read
as set forth in Annexes 2, 3 and 4 hereto, respectively.
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(c) The last sentence of Section 6.10 of the Merger Agreement shall be
amended in full to read as follows:
"The foregoing notwithstanding, Parent shall be entitled to
place legends as specified in the Company Affiliate Letter on
the certificates evidencing any of the Parent Ordinary Shares
to be received by (i) any affiliate of the Company or (ii) any
person Parent reasonably identifies (by written notice to the
Company) as being a person who may be deemed an affiliate of
the Company, pursuant to the terms of this Agreement, and to
issue appropriate stop transfer instructions to the transfer
agent for the Parent Ordinary Shares or the depositary for the
Parent ADSs, consistent with the terms of the Company
Affiliate Letter, regardless of whether such person has
executed the Company Affiliate Letter and regardless of
whether such person's name and address appear in Section 3.22
of the Company Disclosure Schedule."
6. Closing Conditions. From and after the date hereof:
(a) Section 7.02(e) of the Merger Agreement shall be amended in full to
read as follows:
"Reserved."
(b) Section 7.02(j) of the Merger Agreement shall be amended in full to
read as follows:
"the Company shall have filed with the Secretary of State of
the State of Delaware a certificate of elimination with
respect to the Company's Series D Preferred Stock, Series E
Preferred Stock, Series G Preferred Stock, Series H Preferred
Stock, Series I Preferred Stock, Series J Preferred Stock,
Series K Preferred Stock, Series L Preferred Stock, Series M
Preferred Stock and Series M-1 Preferred Stock."
7. Termination. From and after the date hereof:
(a) Section 8.01(b) of the Merger Agreement shall beamended in
full to read as follows:
"by either Parent or the Company, if the Effective Time shall
not have occurred on or before March 31, 2001; provided,
however, that the right to terminate this Agreement under this
Section 8.01(b) shall not be available to any party whose
failure to fulfill any obligation under this Agreement shall
have caused, or resulted in, the failure of the Effective Time
to occur on or before such date;"
(b) From and after the date hereof, Section 8.01(l) of the Merger
Agreement shall be amended in full to read as follows:
"by Parent, if Parent shall be required to issue more than
6,650,000 Parent Ordinary Shares in connection with the
Merger, the Share Exchange and the Option and Warrant
Exchange."
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8. Representations and Warranties of the Company. The Company hereby
represents and warrants to Parent that:
(a) The Company has all necessary corporate power and
authority to execute and deliver this Amendment, to perform its obligations
hereunder and under the Merger Agreement and to consummate the Transactions. The
execution and delivery of this Amendment by the Company and the consummation by
the Company of the Transactions have been duly and validly authorized by all
necessary corporate action, and no other corporate proceedings on the part of
the Company are necessary to authorize this Amendment or to consummate the
Transactions (other than, with respect to the Merger, the adoption of the Merger
Agreement, as amended by this Amendment, by the affirmative vote of a majority
of the outstanding shares of Company Common Stock entitled to vote with respect
thereto at the Company Stockholders' Meeting and the filing and recordation of
the Certificate of Merger as required by the DGCL). This Amendment has been duly
executed and delivered by the Company and, assuming the due authorization,
execution and delivery by the other parties hereto, constitutes the legal, valid
and binding obligation of the Company, enforceable against the Company in
accordance with its terms, subject to the effect of any applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or similar laws
affecting creditors' rights generally and subject, as to enforceability, to the
effect of general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
9. Representations and Warranties of Parent. Parent hereby represents and
warrants to the Company that:
(a) Parent has all necessary corporate power and authority to
execute and deliver this Amendment, to perform its obligations
hereunder and under the Merger Agreement and to consummate the
Transactions. The execution and delivery of this Amendment by Parent
and the consummation by Parent of the Transactions have been duly and
validly authorized by all necessary corporate action, and no other
corporate proceedings on the part of Parent are necessary to authorize
this Amendment or to consummate the Transactions (other than the
resolutions of the Management Board (Vorstand) and the Supervisory
Board (Aufsichtsrat) approving the capital increase, the filing of the
approval of the capital increase by the Management Board (Vorstand) and
the Supervisory Board (Aufsichtsrat) of Parent with the commercial
register (Handelsregister) for Parent and any other action related
thereto). This Amendment has been duly executed and delivered by Parent
and, assuming the due authorization, execution and delivery by the
other parties hereto, and subject to Section 6.14 of the Merger
Agreement, constitutes the legal, valid and binding obligation of
Parent, enforceable against Parent in accordance with its terms,
subject to the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or similar laws
affecting creditors' rights generally and subject, as to
enforceability, to the effect of general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law).
10. Effect on Agreement. (a) From and after the date hereof, each reference
in the Merger Agreement or any other agreement in connection therewith to "this
Agreement", "hereunder", "hereof" or words of like import referring to the
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<PAGE>
Merger Agreement, shall mean and be a reference to the Merger Agreement as
amended by this Amendment. (b) The Merger Agreement as specifically amended
hereby and subject to the conditions herein, is and shall remain in full force
and effect and is in all respects ratified and confirmed.
11. Merger Sub Joinder. Aspen Merger Sub Inc., in its capacity as Merger
Sub, hereby agrees to become a party to and to be bound by the terms and
provisions of the Merger Agreement, as amended hereby.
12. Counterparts. This Agreement may be executed and delivered (including
by facsimile transmission) in one or more counterparts, and by the different
parties hereto in separate counterparts, each of which when executed and
delivered shall be deemed to be an original but all of which taken together
shall constitute one and the same agreement.
13. Governing Law. This Amendment shall be governed by, and construed in
accordance with, the Laws of the State of Delaware, without regard to the
principles of conflicts of laws thereof.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
TREEV, INC.
By: /s/ Thomas A. Wilson
-----------------------------------------
Name: Thomas A. Wilson
Title: President and
Chief Executive Officer
-----------------------------------------
Name: Brian H. Hajost
Title: Executive Vice President
CE COMPUTER EQUIPMENT AG
By: /s/ Hans-Jurgen Brintrup
-----------------------------------------
Name: Hans-Jurgen Brintrup
Title: Member of the Board of Management
By: /s/ Thomas Wenzke
-----------------------------------------
Name: Thomas Wenzke
Title: Member of the Board of Management
ASPEN MERGER SUB INC.
By: /s/ Hans-Jurgen Brintrup
-----------------------------------------
Name: Hans-Jurgen Brintrup
Title: Chairman and President
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<PAGE>
Annex 1 to Amendment No. 1
EXHIBIT A
LIST OF OFFICERS OF SURVIVING CORPORATION
Julia A. Bowen, Vice President & General Counsel
Thomas Giampa, Vice President, Development
Brian H. Hajost, Executive Vice President, Finance & Corporate Development
Richard McMahon, Senior Vice President, Professional Services
Mark A. Paiewonsky, Vice President of Finance
Thomas Wenzke, Chief Administrative Officer
Thomas A. Wilson, President & Chief Executive Officer
<PAGE>
Annex 2 to Amendment No. 1
EXHIBIT C
November 21, 2000
PricewaterhouseCoopers LLP Cooley Godward LLP
1177 Avenue of the Americas One Maritime Plaza
New York, NY 10036 San Francisco, CA 94111-3699
Ladies and Gentlemen:
In order to enable you to deliver an opinion in connection
with the proposed merger (the "Merger") of Aspen Merger Sub Inc., a Delaware
corporation ("Merger Sub"), with and into TREEV, Inc., a Delaware corporation
(the "Company"), and related transactions, pursuant to which the Company will
become a wholly-owned subsidiary of CE Computer Equipment AG, a German
corporation ("Parent"), as described in the Amended and Restated Agreement and
Plan of Merger between Parent and the Company, dated as of November 19, 1999 and
amended and restated as of May 8, 2000, as amended by Amendment No. 1 thereto,
dated as of November 20, 2000 (as so amended, the "Merger Agreement"), the
undersigned officer of the Company hereby represents on behalf of the Company
that, to the best knowledge and belief of such officer, after due inquiry and
investigation, the following statements are true now and will continue to be
true as of the Effective Time (as defined in the Merger Agreement):
1. The fair market value of the Parent ordinary shares, including Parent
ordinary shares represented by American Depositary Shares (collectively,
the "Parent Shares"), received by each Company shareholder in the
transactions described in the Merger Agreement (the "Transactions"), will
be approximately equal to the fair market value of the shares of the
Company Common Stock and Series A Preferred Stock (collectively, the
"Company Stock") surrendered in exchange therefor. The formulas set forth
in the Merger Agreement for the exchange of Parent Shares for the Company
Stock, and the other terms of the Merger Agreement, are the result of
arm's-length bargaining.
2. Prior to and in connection with the Merger, (i) the Company has not
redeemed (and will not redeem) any Company Stock and has not made (and will
not make) any extraordinary distributions (as described in Treasury
Regulation Section 1.368-1T(e)) with respect thereto and (ii) persons that
are related to the Company within the meaning of Treasury Regulation
Section 1.368-1(e)(3) (determined without regard to Treasury Regulation
Section?1.368-1(e)(3)(i)(A)) have not acquired (and will not acquire)
Company Stock from any holder thereof except as set forth in the Merger
Agreement.
3. At the Effective Time, the Company will have no stock or other equity
interests outstanding other than those set forth in Section 3.03 of the
Merger Agreement. The Company does not have outstanding any warrants,
options, convertible securities, or any other type of right pursuant to
which any person could acquire stock (or other equity interest) in the
Company or vote (or restrict or otherwise control the vote of) Company
<PAGE>
Stock that, if exercised or converted, would affect Parent's acquisition or
retention of Control of the Company. For purposes of this letter, "Control"
means the direct ownership of stock in the Company possessing at least 80%
of the total combined voting power of all classes of stock of the Company
entitled to vote and at least 80% of the total number of shares of each
other class of stock of the Company. For purposes of determining Control, a
person will not be considered to own shares of voting stock if rights to
vote such shares (or to restrict or otherwise control the voting of such
shares) are held by a third party (including a voting trust) other than an
agent of such person.
4. The Company has no plan or intention to issue additional shares of its
stock, or take any other action, that would result in Parent losing Control
of the Company.
5. The Company and its shareholders will pay separately their respective
expenses, if any, incurred in connection with the Transactions.
6. The Company is not an investment company as defined in sections
368(a)(2)(F)(iii) and (iv) of the Internal Revenue Code of 1986, as amended
(the "Code").
7. The fair market value of the assets of the Company exceed the sum of its
liabilities plus the amount of liabilities, if any, to which the assets are
subject.
8. The Company is not under the jurisdiction of a court in a case under
Title 11 of the United States Bankruptcy Code, or in a receivership,
foreclosure or similar proceeding in a Federal or state court within the
meaning of section 368(a)(3)(A) of the Code.
9. In connection with the Transactions, 100% of the total combined voting
power of all classes of stock of the Company entitled to vote and 100% of
the total number of shares of each other class of stock of the Company will
be exchanged solely for Parent Shares which are entitled to vote. For
purposes of this representation, no cash or other property has been
furnished directly or indirectly by Merger Sub or Parent (or anyone related
to either of them within the meaning of Treasury Regulation
Section?1.368-1(e)(3), or anyone acting on behalf of any of them as an
agent, in each case a "Related Party") in connection with redemptions or
purchases of Company Stock by the Company or distributions by the Company
to Company shareholders. In addition, no liabilities of the Company
shareholders will be assumed by Parent or Merger Sub (or any Related
Party), nor will any of the Company Stock be subject to any liabilities.
-2-
<PAGE>
10. Pursuant to the Merger, Merger Sub will merge with and into the
Company, and the Company will acquire all of the assets and liabilities of
Merger Sub. Following the Transactions, the Company will continue to hold
at least 90% of the fair market value of its net assets and at least 70% of
the fair market value of its gross assets held immediately prior to the
Merger, and at least 90% of the fair market value of the net assets and at
least 70% of the fair market value of the gross assets of Merger Sub held
immediately prior to the Merger. For purposes of this representation, any
amounts paid by the Company to dissenting Company shareholders or to
Company shareholders who receive cash or other property in the Merger,
amounts used by the Company to pay reorganization expenses, and all
redemptions and distributions or other payments in respect of Company Stock
or rights to acquire such stock (except for regular, normal dividends) made
by the Company in contemplation of the Merger will be included as assets of
the Company or Merger Sub, respectively, immediately prior to the Merger.
11. Other than in the ordinary course of its business, the Company has not
disposed of any of its assets (including any distributions of assets with
respect to, or in redemption of, stock) since January 1, 1998.
12. Other than shares of Company Stock or options to acquire Company Stock
issued as compensation to present or former service providers (including,
without limitation, employees or directors of the Company) in the ordinary
course of business, if any, no issuances of Company Stock or rights to
acquire Company Stock have occurred since July 1, 1999 other than pursuant
to options, warrants, or agreements outstanding prior to July 1, 1999.
13. The liabilities of the Company have been incurred by the Company in the
ordinary course of business.
14. There is no intercorporate indebtedness existing between Parent and the
Company or between Merger Sub and the Company that was issued, acquired or
will be settled at a discount.
15. The documents listed in the attached Exhibit 1 represent the full and
complete agreement among Parent, Merger Sub and the Company regarding the
Transactions, and there are no other written or oral agreements regarding
the Transactions.
16. The Transactions will be consummated solely in compliance with the
material terms of the Merger Agreement. None of the material terms and/or
conditions therein has been waived or modified, and there is no plan or
intention to waive or to modify any such material term or condition.
17. The payment of cash in lieu of fractional shares of Parent Shares is
solely for the purpose of avoiding the expense and inconvenience of issuing
-3-
<PAGE>
fractional shares and does not represent separately bargained for
consideration. The fractional share interests of each holder of Parent
Shares will be aggregated, and no such holder will receive cash in an
amount equal to or greater than the value of one full share of Parent
Shares. The total cash consideration that will be paid to Company
shareholders in lieu of fractional shares will not exceed 1% of the total
consideration that will be issued to the Company shareholders in exchange
for their shares. None of the cash to be paid in lieu of fractional shares
will be provided, directly or indirectly, by Parent, Merger Sub or the
Company.
18. The Company has no plan to sell or otherwise dispose of any of its
assets or of any of the assets acquired from Merger Sub, except for
dispositions made in the ordinary course of business or transfers described
in Treasury Regulation Section 1.368-1(d) and Treasury Regulation Section
1.368-2(k) or section 368(a)(2)(C) of the Code (in which case the foregoing
representation shall be deemed to apply to any transferee).
19. Following the Merger, the Company will continue a significant line of
its historic business or use a significant portion of its historic business
assets in a business.
20. Immediately after the Transactions, not more than fifty percent (50%)
of the total voting power and not more than fifty percent (50%) of the
total value of all outstanding Parent stock will be owned, in the aggregate
(taking into account any attribution or constructive ownership rules of
Treasury Regulation Section 1.367(a)-3(c)), by U.S. persons that are either
officers or directors of the Company or that will own stock representing at
least five percent (5%) or more of the total voting power or total value of
all outstanding Company stock immediately prior to the Transactions. For
purposes of this representation, any stock of Parent owned by U.S. persons
immediately after the Transactions shall be taken into account, whether or
not received in exchange for stock or securities of the Company.
21. No option (or interest similar to an option) to acquire Company capital
stock has been or will be issued or acquired with a principal purpose of
avoiding the general rule of Section 367(a)(1) of the Code.
22. None of the Parent Shares received by any shareholder-employee or
shareholder-independent contractor of the Company in the Transactions will
be separate consideration for, or allocable to, past or future services.
None of the compensation received by any shareholder-employee or
shareholder-independent contractor of the Company is separate consideration
for, or allocable to, such shareholder-employee's or
shareholder-independent contractor's shares of Company Stock surrendered in
the Transactions, and the compensation paid to such shareholder-employee or
shareholder-independent contractor will be for services actually rendered
and will be commensurate with amounts paid to third parties bargaining at
arm's-length for similar services.
-4-
<PAGE>
23. In each instance in which the Company incurred indebtedness, at the
time such indebtedness was incurred, the Company intended to repay such
indebtedness in accordance with its terms.
24. Neither the Company nor any related person of the Company (as such term
is defined in Treasury Regulation Section 1.368-1(e)(3)) has treated, or
has any plan or intention to treat, any instrument denominated as
indebtedness of the Company as anything other than debt for tax or any
other purpose.
25. In each instance in which Parent or BW
Technologie-Beteiligugsgesellschaft has provided a loan to the Company, the
terms of such loan, including the interest rate and payment terms, were
arm's length and commercially reasonable as compared to loans of a similar
amount and maturity.
26. The BW Note Agreement between Parent and the Company dated as of
November 21, 2000 will be implemented in accordance with its terms.
27. Following the completion of the transactions described in the BW Note
Agreement, (i) the Company will not be in default with respect to any
outstanding indebtedness of the Company, and (ii) the Company will have no
plan or intention to retire any indebtedness of the Company in exchange for
any consideration other than in accordance with its terms.
28. The Company has not held discussions with any holder of Company
indebtedness (nor has the Company retained any person to engage in such
discussions whether such discussions are to occur before or after the
Effective Time) regarding the acquisition of or retirement of such
indebtedness for less than the principal amount of the indebtedness.
29. The Company's principal reasons for participating in the Transactions
are bona fide business purposes not related to taxes.
30. The undersigned officer is authorized to make the certifications
contained in this letter on behalf of the Company.
It is understood that (i) your opinions will be based on the representations set
forth herein and on the statements contained in the Merger Agreement (including
all schedules and exhibits thereto) and documents related thereto, (ii) your
opinions will be subject to certain limitations and qualifications including
that they may not be relied upon if any such representations are not accurate in
all material respects or if any of the covenants or obligations set forth in the
Merger Agreement are not satisfied in all material respects and (iii) your
opinions will not address any tax consequences of the Transactions or any action
taken in connection therewith except as expressly set forth in such opinions.
-5-
<PAGE>
Notwithstanding anything herein to the contrary, the undersigned makes no
representations regarding any actions or conduct of the Company pursuant to
Parent's exercise of control over the Company after the Merger.
The Company undertakes to inform you immediately should any of the foregoing
statements or representations become untrue, incorrect or incomplete in any
respect on or prior to the Effective Time.
Very truly yours,
TREEV, Inc.
By:__________________________
Title:________________________
-6-
<PAGE>
Exhibit 1
MERGER AGREEMENT DOCUMENTS
1. Amended and Restated Agreement and Plan of Merger Between CE Computer
Equipment AG and TREEV, Inc., dated as of November 19, 1999 and restated as of
May 8, 2000, and Amendment No. 1 thereto, dated as of November 20, 2000.
2. Voting and Registration Rights Agreement, dated as of November 19, 1999 and
amended as of May 8, 2000 and Letter Agreement thereto, dated as of November 20,
2000, from CE Computer Equipment AG to each of the parties identified on
Schedule A thereto.
3. Series A Preferred Stock Voting and Registration Rights Agreement, dated as
of August 22, 2000 and Letter Agreement thereto, dated as of November 20, 2000,
from CE Computer Equipment AG to each of the parties identified on Schedule A
thereto.
4. Exchange Agent Agreement between CE Computer Equipment AG and The Bank of New
York, as agent, to be dated as of November 22, 2000.
5. Contribution Agent Agreement between CE Computer Equipment AG and Aspen
Merger Corporation, as agent, dated as of November 17, 2000.
-7-
<PAGE>
Annex 4 to Amendment No. 1
EXHIBIT D
November 21, 2000
PricewaterhouseCoopers LLP Cooley Godward LLP
1177 Avenue of the Americas One Maritime Plaza
New York, NY 10036 San Francisco, CA 94111-3699
Ladies and Gentlemen:
In order to enable you to deliver an opinion in connection with the proposed
merger (the "Merger") of Aspen Merger Sub Inc., a Delaware corporation ("Merger
Sub"), with and into TREEV, Inc., a Delaware corporation (the "Company"), and
related transactions, pursuant to which the Company will become a wholly-owned
subsidiary of CE Computer Equipment AG, a German corporation ("Parent"), as
described in the Amended and Restated Agreement and Plan of Merger between
Parent and the Company, dated as of November 19, 1999 and amended and restated
as of May 8, 2000, as amended by Amendment No. 1 thereto, dated as of November
20, 2000 (as so amended, the "Merger Agreement"), the undersigned officers of
Parent and Merger Sub hereby represent on behalf of Parent and Merger Sub that,
to the best knowledge and belief of such officers, after due inquiry and
investigation, the following statements are true now and will continue to be
true as of the Effective Time (as defined in the Merger Agreement):
1. The fair market value of the Parent ordinary shares, including the
Parent ordinary shares represented by American Depositary Shares
(collectively, the "Parent Shares"), received by each Company shareholder
in the transactions described in the Merger Agreement (the "Transactions"),
will be approximately equal to the fair market value of the shares of the
Company Common Stock and Series A Preferred Stock (collectively, the
"Company Stock") surrendered in exchange therefor. The formulas set forth
in the Merger Agreement for the exchange of Parent Shares for Company
Stock, and the other terms of the Merger Agreement, are the result of
arm's-length bargaining.
2. In connection with the Transactions, 100% of the total combined voting
power of all classes of stock of the Company entitled to vote and 100% of
the total number of shares of each other class of stock of the Company will
be exchanged solely for Parent Shares which are entitled to vote. For
purposes of this representation, no cash or other property has been
furnished directly or indirectly by Merger Sub or Parent (or anyone related
to either of them within the meaning of Treasury Regulation
Section?1.368-1(e)(3), or anyone acting on behalf of any of them as an
agent, in each case a "Related Party") in connection with redemptions or
purchases of Company Stock by the Company or distributions by the Company
to Company shareholders. In addition, no liabilities of the Company
shareholders will be assumed by Parent or Merger Sub (or any Related
Party), nor will any of the Company Stock be subject to any liabilities.
<PAGE>
3. Pursuant to the Merger, Merger Sub will merge with and into the Company,
and the Company will acquire all of the assets and liabilities of Merger
Sub. Following the Transactions, Parent intends to cause the Company to
hold at least 90% of the fair market value of its net assets and at least
70% of the fair market value of its gross assets held immediately prior to
the Merger, and at least 90% of the fair market value of the net assets and
at least 70% of the fair market value of the gross assets of Merger Sub
held immediately prior to the Merger. For purposes of this representation,
any amounts paid by the Company or Merger Sub to dissenters, amounts paid
by the Company or Merger Sub to Company shareholders who receive cash or
other property, amounts used by the Company or Merger Sub to pay
reorganization expenses, and all redemptions and distributions or other
payments in respect of Company Stock or rights to acquire such stock
(except for regular, normal dividends) made by the Company in contemplation
of the Merger will be included as assets of the Company or Merger Sub,
respectively, immediately prior to the transaction.
4. Following the Transactions, members of Parent's "qualified group" (as
defined in Treasury Regulation Section 1.368-1(d)(4)) will continue a
significant line of the historic business of the Company or use a
significant portion of the Company's historic business assets in a
business.
5. Following the Transactions, Parent has no plan or intention to liquidate
the Company; to merge the Company with or into another corporation; to
cause the Company to sell or otherwise dispose of any of its assets or of
any of the assets acquired from Merger Sub, except for dispositions made in
the ordinary course of business or transfers described in Treasury
Regulation Section 1.368-1(d) and Treasury Regulation Section 1.368-2(k)
(in which case the foregoing representation shall be deemed to apply to any
transferee); to sell or otherwise dispose of any Company Stock; or to
contribute Company Stock to any other entity, except for transfers
described in section 368(a)(2)(C) of the Internal Revenue Code of 1986, as
amended (the "Code") or Treasury Regulation Section 1.368-2(k) (in which
case the foregoing representations shall be deemed to apply to any
transferee).
6. Parent has no plan or intention to reacquire any of its stock issued in
the Transactions. To the best of the knowledge of the management of Parent,
no person related to Parent within the meaning of Treasury Regulation
Section 1.368-1(e)(3) and no person acting as an intermediary for Parent or
such a related person has a plan or intention to acquire any of the Parent
Shares issued in the Transactions. On August 2, 2000, Parent was authorized
but not directed by its shareholders to repurchase up to 2,000,817 shares
<PAGE>
(representing approximately ten percent) of the capital stock of Parent at
any time prior to December 31, 2001. Although Parent has no plan or
intention to engage in any such stock repurchase, any such repurchase would
be made on the open market through a broker for the prevailing market price
and would not favor participation by former Company shareholders.
Additionally, Parent would not know the identity of the sellers of the
Parent stock and such sellers would not know whether Parent is the buyer of
such stock.
7. Parent has no plan or intention to cause the Company to issue additional
shares of Company Stock that would result in Parent losing Control of the
Company. For purposes of this letter, "Control" means the direct ownership
of stock in the Company possessing at least 80% of the total combined
voting power of all classes of stock of the Company entitled to vote and at
least 80% of the total number of shares of each other class of stock of the
Company. For purposes of determining Control, a person will not be
considered to own shares of voting stock if rights to vote such shares (or
to restrict or otherwise control the voting of such shares) are held by a
third party (including a voting trust) other than an agent of such person.
8. The Contribution Agent (as defined in the Merger Agreement) has formed
Merger Sub on behalf of and as the agent of Parent and will participate in
the Transactions and otherwise effectuate the exchange of Parent Shares for
Company Stock solely to facilitate Parent's compliance with German
corporate law regarding the issuance of shares.
9. Merger Sub was formed solely for the purpose of merging into the
Company, has not owned and does not own any assets, and has not been and is
not subject to any liabilities.
10. Prior to the Merger, the Contribution Agent will hold all of Merger
Sub's issued and outstanding common stock solely on behalf of and as the
agent of Parent.
11. No shares of Merger Sub will be used as consideration in the Merger or
otherwise issued to shareholders of the Company.
12. The exchange by the Contribution Agent of Company Stock for Parent
Shares will occur as soon as possible after the Merger.
13. Parent and Merger Sub will pay separately their respective expenses, if
any, incurred in connection with the Transactions.
14. None of Parent, Merger Sub, or any other direct or indirect subsidiary
of Parent beneficially owns, nor has owned during the past five years, any
shares of Company Stock or the right to acquire or vote such shares (except
such rights as are granted in the Merger Agreement).
<PAGE>
15. With respect to each instance, if any, in which shares of Company Stock
have been purchased (a "Stock Purchase") by any person during the period
since January 1, 1999: (i) the Stock Purchase was not made by such person
as a representative of Parent; (ii) the purchase price paid by such person
pursuant to the Stock Purchase was not advanced, and will not be
reimbursed, either directly or indirectly, by Parent; (iii) at no time was
such person or any other party required or obligated to surrender to Parent
the Company Stock acquired in the Stock Purchase, and neither such person
nor any other party will be required to surrender to Parent the Parent
Shares for which such shares of stock of the Company will be exchanged in
the Merger; and (iv) the Stock Purchase was not a formal or informal
condition to consummation of the Merger.
16. Immediately after the Transactions, not more than fifty percent (50%)
of the total voting power and not more than fifty percent (50%) of the
total value of all outstanding Parent stock will be owned, in the aggregate
(taking into account any attribution or constructive ownership rules of
Treasury Regulation Section 1.367(a)-3(c)), by U.S. persons that are either
officers or directors of the Company or that own stock representing at
least five percent (5%) or more of the total voting power or total value of
all outstanding Company Stock immediately prior to the Transactions. For
purposes of this representation, any stock of Parent owned by U.S. persons
immediately after the Transactions shall be taken into account, whether or
not received in exchange for stock or securities of the Company.
17. Throughout the entire 36-month period immediately preceding the
Transactions, Parent, directly or through one or more qualified
subsidiaries (as defined in Treasury Regulation Section
1.367(a)-3(c)(5)(vii)), will have been engaged in an active trade or
business, consisting of producing systems for integrated document
management and archiving, outside of the United States, and Parent has no
intention to dispose of or discontinue such active trade or business.
18. At the time of the Transactions, the fair market value of Parent (not
taking into account assets acquired outside the ordinary course of business
within the 36-month period immediately preceding the Transactions) will be
at least equal to the fair market value of the Company.
19. After the Transactions, Parent will, and will cause the Company to,
comply with the record-keeping and information filing requirements of
Treasury Regulation Section 1.367(a)-3(c)(6).
20. No option (or interest similar to an option) to acquire Parent stock
has been or will be issued or acquired with a principal purpose of avoiding
the general rule of Section 367(a)(1) of the Code.
<PAGE>
21. Neither Parent nor Merger Sub is an investment company as defined in
sections 368(a)(2)(F)(iii) and (iv) of the Code.
22. None of the Parent Shares received by any shareholder-employee or
shareholder-independent contractor of the Company in the Transactions will
be separate consideration for, or allocable to, past or future services.
None of the compensation received by any shareholder-employee or
shareholder-independent contractor of the Company is separate consideration
for, or allocable to, such shareholder-employee's or
shareholder-independent contractor's shares of Company Stock surrendered in
the Transactions, and the compensation paid to such shareholder-employee or
shareholder-independent contractor will be for services actually rendered
and will be commensurate with amounts paid to third parties bargaining at
arm's-length for similar services.
23. The documents listed in the attached Exhibit 1 represent the full and
complete agreement among Parent, Merger Sub and the Company regarding the
Transactions, and there are no other written or oral agreements regarding
the Transactions.
24. The Transactions will be consummated solely in compliance with the
material terms of the Merger Agreement; as of the date hereof, none of the
material terms and/or conditions therein has been waived or modified, and
there is no plan or intention to waive or to modify any such material term
or condition.
25. There is no intercorporate indebtedness existing between Parent and the
Company or between Merger Sub and the Company that was issued, acquired or
will be settled at a discount.
26. The payment of cash in lieu of fractional shares of Parent Shares is
solely for the purposes of avoiding the expense and inconvenience of
issuing fractional shares and does not represent separately bargained for
consideration. The fractional share interests of each holder of Parent
Shares will be aggregated, and no such holder will receive cash in an
amount equal to or greater than the value of one full share of Parent
Shares. The total cash consideration that will be paid to Company
shareholders in lieu of fractional shares will not exceed 1% of the total
consideration that will be issued to the Company shareholders in exchange
for their shares. None of the cash to be paid in lieu of fractional shares
will be provided, directly or indirectly, by Parent, Merger Sub or the
Company.
27. In each instance in which Parent has provided a loan to the Company, at
the time such loan was provided, Parent expected the Company to repay such
loan in accordance with its terms.
<PAGE>
28. Neither Parent nor any related person of Parent (as such term is
defined in Treasury Regulation Section 1.368-1(e)(3)) has treated, or has
any plan or intention to treat, any instrument denominated as indebtedness
of the Company as anything other than debt for tax or any other purpose.
29. Parent has not held discussions with any holder of Company indebtedness
(nor has Parent retained any person to engage in such discussions whether
such discussions are to occur before or after the Effective Time) regarding
the acquisition of or retirement of such indebtedness for less than the
principal amount of the indebtedness.
30. Parent has no plan or intention to cause the Company to retire any
indebtedness of the Company except in accordance with its terms.
31. Parent has no plan or intention to acquire from any third party any
indebtedness of the Company.
32. The BW Note Agreement between Parent and the Company dated as of
November 21, 2000 will be implemented in accordance with its terms.
33. Parent's principal reasons for participating in the Transactions are
bona fide business purposes not related to taxes.
34. The undersigned officers are authorized to make the certifications
contained in this letter on behalf of Parent and Merger Sub, as the case
may be.
It is understood that (i) your opinions will be based on the representations set
forth herein and on the statements contained in the Merger Agreement (including
all schedules and exhibits thereto) and documents related thereto, (ii) your
opinions will be subject to certain limitations and qualifications including
that they may not be relied upon if any such representations are not accurate in
all material respects or if any of the covenants or obligations set forth in the
Merger Agreement are not satisfied in all material respects and (iii) your
opinions will not address any tax consequences of the Transactions or any action
taken in connection therewith except as expressly set forth in such opinions.
Parent and Merger Sub undertake to inform you immediately should any of the
foregoing statements or representations become untrue, incorrect or incomplete
in any respect on or prior to the Effective Time.
Very truly yours,
CE Computer Equipment AG
By:__________________________
Title:________________________
Aspen Merger Sub Inc.
By:__________________________
Title:________________________
<PAGE>
Exhibit 1
MERGER AGREEMENT DOCUMENTS
1. Amended and Restated Agreement and Plan of Merger Between CE Computer
Equipment AG and TREEV, Inc., dated as of November 19, 1999 and amended and
restated as of May 8, 2000, and Amendment No. 1 thereto, dated as of November
20, 2000.
2. Voting and Registration Rights Agreement, dated as of November 19, 1999 and
amended as of May 8, 2000 and Letter Agreement thereto, dated as of November 20,
2000, from CE Computer Equipment AG to each of the parties identified on
Schedule A thereto.
3. Series A Preferred Stock Voting and Registration Rights Agreement, dated as
of August 22, 2000 and Letter Agreement thereto, dated as of November 20, 2000,
from CE Computer Equipment AG to each of the parties identified on Schedule A
thereto.
4. Exchange Agent Agreement between CE Computer Equipment AG and The Bank of New
York, as agent, to be dated as of November 22, 2000.
5. Contribution Agent Agreement between CE Computer Equipment AG and Aspen
Merger Corporation, as agent, dated as of November 17, 2000.
<PAGE>
EXHIBIT E
FORM OF COMPANY AFFILIATE LETTER
TREEV, Inc.
13900 Lincoln Park Drive
3rd Floor
Herndon, Virginia 20171
USA
CE Computer Equipment AG
Herforder Stra(beta)e 155A
33609 Bielefeld
Germany
Ladies and Gentlemen:
I have been advised that as of the date of this letter I may
be deemed to be an "affiliate" of TREEV, Inc., a Delaware corporation
("Company"), as the term "affiliate" is defined for purposes of paragraphs (c)
and (d) of Rule 145 of the rules and regulations (the "Rules and Regulations")
of the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "Act"). Pursuant to the terms of the
Amended and Restated Agreement and Plan of Merger, dated as of November 19, 1999
and amended and restated as of May 8, 2000, as amended by Amendment No. 1
thereto dated as of November 20, 2000 (as so amended, the "Agreement"), between
CE Computer Equipment AG, an Aktiengesellschaft organized and existing under the
laws of the Federal Republic of Germany ("Parent"), and the Company, Aspen
Merger Sub Inc., a Delaware corporation, shall be merged with and into the
Company (the "Merger"), and the stockholders of the Company shall receive
ordinary shares, without par value, of Parent ("Parent Ordinary Shares") or
American Depositary Shares ("Parent ADSs") representing Parent Ordinary Shares
in exchange for shares of common stock, par value $.0001 per share, of the
Company (the "Company Common Stock") and shares of Series A Cumulative
Convertible Preferred Stock, par value $.0001 per share, of the Company (the
"Company Series A Preferred Stock"). Capitalized terms used but not defined
herein shall have the meanings ascribed thereto in the Agreement.
I understand and acknowledge that persons who are affiliates
of Parent or the Company will not be eligible to hold Parent ADSs and will
instead receive Parent Ordinary Shares in the Merger and the Option and Warrant
Exchange. As a result of the Merger and the Option and Warrant Exchange, I may
receive Parent Ordinary Shares or Parent ADSs in exchange for shares owned by me
of Company Common Stock or Company Series A Preferred Stock, warrants owned by
me to acquire Company Common Stock or employee stock options of the Company, as
the case may be (the Parent ADSs together with the Parent Ordinary Shares are
hereinafter collectively referred to as the "Parent Securities").
<PAGE>
I represent, warrant and covenant to Parent that in the event
I receive any Parent Securities as a result of the Merger or the Option and
Warrant Exchange:
A. I shall not make any sale, transfer or other disposition of Parent
Securities in violation of the Act or the Rules and Regulations.
B. I have carefully read this letter and the Agreement and discussed
the requirements of such documents and other applicable limitations
upon my ability to sell, transfer or otherwise dispose of Parent
Securities to the extent I felt necessary, with my counsel or counsel
for the Company.
C. I have been advised that the issuance of Parent Securities to me
pursuant to the Merger and the Option and Warrant Exchange shall be
registered with the Commission under the Act on a Registration
Statement on Form F-4. However, I have also been advised that, since
(a) at the time the Merger shall be submitted for a vote of the
stockholders of the Company, I may be deemed to be an affiliate of the
Company and (b) the distribution by me of Parent Securities has not
been registered under the Act, I may not sell, transfer or otherwise
dispose of Parent Securities issued to me in the Merger and the Option
and Warrant Exchange unless (i) such sale, transfer or other
disposition is made in conformity with the volume and other
limitations of Rule 145 promulgated by the Commission under the Act,
(ii) such sale, transfer or other disposition has been registered
under the Act or (iii) in the opinion of counsel reasonably acceptable
to Parent, such sale, transfer or other disposition is otherwise
exempt from registration under the Act.
D. I understand that, except as provided in the Agreement [and in the
Voting Agreement, as amended, to which I am a party], Parent is under
no obligation to register the sale, transfer or other disposition of
Parent Securities by me or on my behalf under the Act or to take any
other action necessary in order to make compliance with an exemption
from such registration available.
E. I also understand that stop transfer instructions will be given to
Parent's transfer agents or the depositary for the Parent ADSs with
respect to Parent Securities issued to me and that there will be
placed on the certificates for Parent Securities issued to me, or any
substitutions therefor, a legend stating in substance:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ISSUED IN A
TRANSACTION TO WHICH RULE 145 PROMULGATED UNDER THE SECURITIES
ACT OF 1933 APPLIES. THE SECURITIES REPRESENTED BY THIS
CERTIFICATE MAY ONLY BE TRANSFERRED IN ACCORDANCE WITH THE TERMS
OF AN AGREEMENT DATED _________________ BETWEEN THE REGISTERED
HOLDER HEREOF AND CE COMPUTER EQUIPMENT AG, A COPY OF WHICH
AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICES OF CE COMPUTER
EQUIPMENT AG."
<PAGE>
F. I also understand that, unless the sale or transfer by me of Parent
Securities has been registered under the Act or is a sale made in
conformity with the provisions of Rule 145, Parent reserves the right
to put the following legend on the certificates issued to my
transferee:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 AND WERE ACQUIRED
FROM A PERSON WHO RECEIVED SUCH SECURITIES IN A TRANSACTION TO
WHICH RULE 145 PROMULGATED UNDER THE SECURITIES ACT OF 1933
APPLIES. THE SECURITIES HAVE BEEN ACQUIRED BY THE HOLDER NOT
WITH A VIEW TO, OR FOR RESALE IN CONNECTION WITH, ANY
DISTRIBUTION THEREOF WITHIN THE MEANING OF THE SECURITIES ACT
OF 1933 AND MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT IN ACCORDANCE WITH AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT OF 1933."
<PAGE>
Execution of this letter should not be considered an admission
on my part that I am an "affiliate" of the Company as described in the first
paragraph of this letter, or as a waiver of any rights I may have to object to
any claim that I am such an affiliate on or after the date of this letter.
Very truly yours,
Name:
Accepted this ____ day of
_____________ , ____, by
CE COMPUTER EQUIPMENT AG
By:
---------------------------------------
Name:
Title:
TREEV, INC.
By:
---------------------------------------
Name:
Title:
