SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Amendment No. 6)
Under the Securities Exchange Act of 1934
TREEV, Inc.
(Name of Issuer)
Common Stock, Par Value $ 0.0001 Per Share
(Title of Class of Securities)
294692300
(CUSIP Number)
Ulrich Thol
CE Computer Equipment AG
Herforder Strae 155A
33609 Bielefeld, Germany
Telephone: +49-521-9318-01
Copy to:
W. Jeffrey Lawrence, Esq.
Shearman & Sterling
9 Appold Street
London EC2A 2AP
Telephone: 011 44 20 7655 5000
(Name, Address and Telephone Number
of Person Authorized to Receive Notices)
November 20, 2000
(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 which is the subject of this Schedule 13D, and is filing this
schedule because of ss. 240.13d-1(e), ss. 240.13d-1(f) or ss. 240.13d-1(g),
check the following box |_|.
Note: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See ss. 240.13d-7(b) for other
parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
<PAGE>
SCHEDULE 13D
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1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
CE Computer Equipment AG
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2 Check the Appropriate Box if a Member of a Group
(a) |_|
(b) |_|
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3 SEC Use Only
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4 Source of Funds (See Instructions) OO
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5 Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e) |_|
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6 Citizenship or Place of Organization Germany
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7 Sole Voting Power
0
NUMBER OF --------------------------------------------------------
SHARES 8 Shared Voting Power
BENEFICIALLY 7,168,456 shares of Common Stock
OWNED BY --------------------------------------------------------
EACH 9 Sole Dispositive Power
REPORTING 0
PERSON --------------------------------------------------------
WITH 10 Shared Dispositive Power
0
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11 Aggregate Amount Beneficially Owned by Each Reporting Person
7,168,456 shares of Common Stock
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12 Check if the Aggregate Amount in Row (11) Excludes Certain Shares
(See Instructions) |_|
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13 Percent of Class Represented by Amount in Row (11) 40.2%
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14 Type of Reporting Person (See Instructions) CO
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* Pursuant to the Merger Agreement (as defined in response to Item 3),
the Reporting Person will, subject to the conditions specified therein,
acquire all of the outstanding shares of Issuer Common Stock (as
defined in response to Item 1) in exchange for newly issued ordinary
shares, no par value, of the Reporting Person or American Depositary
Shares, each representing one newly issued ordinary share, without par
value, of the Reporting Person.
<PAGE>
Introductory Statement
This Amendment No. 6 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, Amendment No. 4 and Amendment
No. 5 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 3. Source and Amount of Funds or Other Consideration.
Item 3 is hereby amended and restated in its entirety as follows:
"Pursuant to the Agreement and Plan of Merger, dated as of
November 19, 1999 (the "Original Merger Agreement"), and amended and
restated as of May 8, 2000 (as so amended and restated, the "Amended
and Restated Merger Agreement"), as amended by Amendment No. 1 to the
Amended and Restated Merger Agreement, dated as of November 20, 2000
("Amendment No. 1 to the Amended and Restated Merger Agreement", as so
amended, the "Merger Agreement") and subject to the conditions
contained therein, the Reporting Person will acquire all the
outstanding shares of Issuer Common Stock in exchange for newly issued
ordinary shares, without par value, of the Reporting Person (the
"Reporting Person Ordinary Shares") or American Depositary Shares, each
representing one Reporting Person Ordinary Share ("Reporting Person
ADSs"). Holders of Issuer Common Stock who are deemed to be affiliates
of the Issuer will receive Reporting Person Ordinary Shares in the
Merger (as defined below), and all other holders of Issuer Common Stock
will receive Reporting Person ADSs in the Merger. In connection with
the Merger Agreement, the Reporting Person has entered into a Voting
and Registration Rights Agreement, dated as of November 19, 1999 (the
"Original Voting Agreement"), as amended by Amendment No. 1 to Voting
and Registration Rights Agreement, dated as of May 8, 2000 ("Amendment
No. 1 to the Voting Agreement") and supplemented by the side letter
dated as of November 20, 2000 (the "Voting Agreement Side Letter"),
with certain beneficial owners of shares of Issuer Common Stock (as so
amended and supplemented, the "Voting Agreement"). As a result of the
execution of the Voting Agreement and the New Irrevocable Proxies (as
defined below), the Reporting Person may be deemed to be the beneficial
owner of the shares of Issuer Common Stock subject to such agreement."
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
<PAGE>
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. On November 20, 2000, the Reporting Person
and the Issuer executed Amendment No. 1 to the Amended and Restated
Merger Agreement to reflect certain changes to the implementation of
the Merger, to amend or remove certain closing conditions and exhibits,
to extend the termination date and to reflect a five-for-one stock
split of CE.
Pursuant to the Merger Agreement, the Reporting Person will
appoint a contribution agent (the "Contribution Agent") in connection
with the Share Exchange (as defined below). Aspen Merger Sub, Inc., a
newly formed and wholly owned subsidiary of the Contribution Agent
("Merger Sub "), 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 Contribution 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 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
Ordinary Shares and Reporting Person ADSs to be delivered to The Bank
of New York, as exchange agent, for the account of the Contribution
Agent and for the benefit of the former stockholders, optionholders and
warrantholders 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.
In the Merger, each share of Issuer Common Stock (other than
shares of Issuer Common Stock held in the treasury of the Issuer or
owned by the Reporting Person or any direct wholly owned subsidiary of
the Reporting Person) 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 or,
if the holder of Issuer Common Stock or Series A Preferred Stock is an
affiliate of the Issuer, Reporting Person Ordinary Shares. Under the
terms of the Merger Agreement, the Reporting Person will issue a total
of no more than 6,650,00 Reporting Person Ordinary Shares and 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.
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 Merger Agreement and the transactions contemplated by the
<PAGE>
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 Merger Agreement and
any other matter that could reasonably be expected to facilitate the
Merger. As of November 6, 2000, the Stockholders owned in the aggregate
5,614,043 outstanding shares of Issuer Common Stock, representing
approximately 34.5% 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.
Pursuant to the 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 and as
supplemented by a letter agreement dated as of November 20, 2000 from
the Reporting Person, with certain holders of Series A Preferred Stock
(as supplemented, 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
<PAGE>
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 November 6, 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 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 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 Exhibits 29 through 35, respectively, and which are
incorporated herein by reference in their entirety."
Item 5. Interest in Securities of the Issuer.
Item 5 is hereby amended and restated in its entirety as follows:
"As a result of the execution of the Voting Agreement and the
New Irrevocable Proxies, the Reporting Person may be deemed to be the
beneficial owner of 7,168,456 shares of Issuer Common Stock (which
includes 1,554,413 shares of Issuer Common Stock which the Stockholders
have the right to acquire within 60 days pursuant to the exercise of
Options and Warrants), representing approximately 40.2% of the number
of shares of Issuer Common Stock outstanding as of November 6, 2000.
The Reporting Person has the right to vote all such shares of Issuer
Common Stock in favor of the Merger, the Merger Agreement and any other
matter that could reasonably be
<PAGE>
expected to facilitate the Merger. The Reporting Person does not have
the right to vote such shares of Issuer Common Stock in connection with
any other matter. Pursuant to the terms of the Voting Agreement, the
Stockholders have agreed not to dispose of the shares of Issuer Common
Stock, Options or Warrants held by them unless the transferee agrees in
writing to be bound by the terms of the Voting Agreement with respect
to such shares of Issuer Common Stock, Options or Warrants. The
foregoing descriptions of the Voting Agreement and the New Irrevocable
Proxies do not purport to be complete and are qualified in their
entirety by reference to such agreements, copies of which are attached
hereto as Exhibit 2, Exhibits 17 through 27 and Exhibit 34,
respectively, and which are incorporated herein by reference in their
entirety.
Except as described herein, neither the Reporting Person nor,
to the best of the Reporting Person's knowledge, any other person
referred to in Schedule I attached hereto, has acquired or disposed of
any shares of Issuer Common Stock during the past 60 days."
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 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:
33. Amendment No. 1 to the Amended and Restated Merger Agreement, dated
as of November 20, 2000 between CE Computer Equipment AG and TREEV, Inc.
34. Letter Agreement, dated as of November 20, 2000, from CE Computer
Equipment AG to the parties to the Voting and Registration Rights Agreement,
dated as of November 19, 1999, and Amendment No. 1 thereto.
35. Letter Agreement, dated as of November 20, 2000, from CE Computer
Equipment AG to the parties to the Series A Preferred Stock Agreement, dated as
of August 22, 2000.
<PAGE>
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.
Date: November 21, 2000 CE Computer Equipment AG
By: /s/ Thomas Wenzke
------------------------------
Name: Thomas Wenzke
Title: Member of the Board of
Management
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
----------- -----------
32 Amendment No. 1 to the Amended and Restated Merger Agreement,
dated as of November 20, 2000 between CE Computer Equipment AG
and TREEV, Inc.
33 Letter Agreement, dated as of November 20, 2000, from CE
Computer Equipment AG to the parties to the Voting and
Registration Rights Agreement, dated as of November 19, 1999,
and Amendment No. 1 thereto.
34 Letter Agreement, dated as of November 20, 2000, from CE
Computer Equipment AG to the parties to the Series A Preferred
Stock Agreement, dated as of August 22, 2000.
<PAGE>
Exhibit 33
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")."
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
<PAGE>
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 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
<PAGE>
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 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.
<PAGE>
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 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
<PAGE>
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.
(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
<PAGE>
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, 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
<PAGE>
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").
(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
<PAGE>
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.
(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
<PAGE>
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.
(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 be amended in full to
read as follows:
<PAGE>
"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."
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
<PAGE>
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
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.
<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
By: /s/ BRIAN H. HAJOST
--------------------------------------
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
<PAGE>
Exhibit 34
CE COMPUTER EQUIPMENT AG
Herforder Strasse 155A
33609 Bielefeld, Germany
November 20, 2000
To The Parties Listed on Exhibit A:
Reference is made to (1) the Voting and Registration Rights
Agreement, dated as of November 19, 1999, among CE Computer Equipment AG ("CE")
and each of you, and Amendment No. 1 thereto, dated as of May 8, 2000 (as so
amended, the "Agreement") and (2) Amendment No. 1, dated as of the date hereof,
to the Amended and Restated Agreement and Plan of Merger between CE and TREEV,
Inc., dated as of November 19, 1999 and amended and restated as of May 8, 2000.
CE hereby agrees and acknowledges that each reference in
Section 4.01 and Section 4.02 of the Agreement to "Acquiror ADSs" shall be
deemed to be a reference to "Acquiror ADSs or Acquiror Shares".
Except to the extent specifically provided above, the
Agreement is and shall continue to be in full force and effect in accordance
with its terms.
Very truly yours,
CE COMPUTER EQUIPMENT AG
By: /s/ Hans-Jurgen Brintrup
---------------------------------
Name: Hans-Jurgen Brintrup
Title: Member of Management Board
<PAGE>
EXHIBIT A
Parties to Voting and Registration Rights Agreement
---------------------------------------------------
James J. Leto
Robert P. Bernardi
John F. Burton
C. Alan Peyser
Thomas A. Wilson
Mark A. Paiewonsky
Richard E. McMahon
Brian H. Hajost
Horace T. Ardinger, Jr.
Douglas Adkins
<PAGE>
Exhibit 35
CE COMPUTER EQUIPMENT AG
Herforder Strasse 155A
33609 Bielefeld, Germany
November 20, 2000
To the Parties Listed on Exhibit A:
Reference is made to (1) the Series A Preferred Stock
Agreement, dated as of August 22, 2000, among CE Computer Equipment AG ("CE")
and each of you (the "Agreement") and (2) Amendment No. 1, dated as of the date
hereof, to the Amended and Restated Agreement and Plan of Merger between CE and
TREEV, Inc., dated as of November 19, 1999 and amended and restated as of May 8,
2000.
CE hereby agrees and acknowledges that each reference in
Section 3.01 and Section 3.02 of the Agreement to "Acquiror ADSs" shall be
deemed to be a reference to "Acquiror ADSs or Acquiror Shares".
Except to the extent specifically provided above, the
Agreement is and shall continue to be in full force and effect in accordance
with its terms.
Very truly yours,
CE COMPUTER EQUIPMENT AG
By: /s/ Hans-Jurgen Brintrup
---------------------------------
Name: Hans-Jurgen Brintrup
Title: Member of Management Board
<PAGE>
EXHIBIT A
Parties to Series A Preferred Stock Agreement
---------------------------------------------
Gene T. Pretti
Zazove Aggressive Growth Fund, Inc.
Zazove Global Convertible Fund, L.P.
Zazove High Yield Convertible Securities Fund, L.P.
Green-Cohn Group
LB Series Fund, Inc., High Yield Portfolio
