1
EXHIBIT 2.4
CONTRIBUTION AGREEMENT
THIS CONTRIBUTION AGREEMENT (this "Agreement") is entered into and is
effective as of March 31, 2000, by and between Avistar Systems Corporation, a
Delaware corporation ("Avistar"), VCT, Inc., a Nevada corporation ("VCT") and
the holders of capital stock of VCT listed on the signature page hereto
(collectively, the "Holders" and individually, a "Holder"), with reference to
the following facts:
A. WHEREAS the Holders hold all of the Common Stock of VCT;
B. WHEREAS the parties intend that all of the outstanding capital
stock of VCT be wholly owned by Avistar;
C. WHEREAS each of the parties is a beneficial owner of capital
stock or options to purchase capital stock of Avistar; and
D. WHEREAS for the consideration of each other Holder's contribution
to capital of Avistar, each Holder desires to surrender to
Avistar such Holder's interest in or right to acquire the capital
stock of VCT;
NOW THEREFORE, in consideration of the promises and the mutual covenants
and conditions herein, the parties hereby agree as follows:
1. CANCELLATION OF INTEREST IN VCT CAPITAL STOCK. The execution of this
Agreement shall act as a notice from each of the Holders to Avistar to cause
each Holder's interest in the capital stock of VCT to be transferred without
further consideration to Avistar and the value of such interest in the capital
stock of VCT shall be a contribution to stockholders' equity of Avistar. As a
result of the contribution, Avistar shall be the sole holder of all interests in
and rights to acquire the capital stock of VCT. To evidence such transfer, each
Holder shall execute the assignment separate from certificate in the form
attached hereto as Exhibit A.
2. STOCKHOLDER RECORDS. On the effective date of this Agreement, VCT will
immediately cause its stockholder register to reflect the transfer of each
Holder's interest to Avistar, and Avistar shall cause its books and records,
including its financial statements, to reflect the contribution of the VCT
capital stock to Avistar as a additional paid in capital from the Holder.
3. EXTINGUISHMENT OF RIGHTS. On the effective date of this Agreement, each
Holder will be deemed to have relinquished all of such Holder's rights in the
VCT capital stock or to purchase any VCT capital stock and shall have no further
right, title or interest in such.
4. TERMINATION OF RESTRICTED STOCK PURCHASE AGREEMENTS.
(a) VCT waives any rights of first refusal and notice
requirements set forth in the Restricted Stock Purchase Agreements between each
Holder of VCT's Common Stock and VCT in connection with the contribution of the
shares to Avistar as set forth in this Agreement.
2
(b) On the effective date of this Agreement, the Xxxxxx X.
Xxxxxxx and Xxxxxxxx X. Xxxxxxx Revocable Trust and VCT each agree to terminate
in their entirety the Restricted Stock Purchase Agreement dated as of September
29, 1998, and further agree that none of the parties to such agreement shall
have any further rights or obligations thereunder.
(c) On the effective date of this Agreement, the Xxxxxxxxx
Revocable Trust and VCT each agree to terminate in their entirety the Restricted
Stock Purchase Agreement dated as of Restricted Stock Purchase Agreement dated
as of September 29, 1998, and further agree that none of the parties to such
agreements shall have any further rights or obligations thereunder.
(d) On the effective date of this Agreement, Xxxxxxx X. Xxxxxxxx
and VCT each agree to terminate in their entirety the Restricted Stock Purchase
Agreement dated as of September 29, 1998, and further agree that none of the
parties to such agreement shall have any further rights or obligations
thereunder.
5. REPRESENTATIONS OF THE HOLDERS AND AVISTAR.
a. Each Holder represents and warrants to Avistar, jointly and not
severally, that
(i) Ownership of Shares. Such Holder is the sole and lawful owner
of all right, title and interest in and to all of the claims related to the
shares of VCT capital stock transferred pursuant to this Agreement and that such
Holder has not heretofore voluntarily, by operation of law or otherwise,
assigned or transferred or purported to assign or transfer to any person
whomsoever any such claim or asset.
(ii) Authorization. This Agreement when executed and delivered by
such Holder will constitute a valid and legally binding obligation of such
Holder, enforceable in accordance with its terms subject to bankruptcy,
insolvency, fraudulent conveyance, moratorium or other laws affecting creditors'
rights generally and to equitable principles of general applicability.
b. Avistar hereby represents and warrants to each Holder with respect to
the contribution of such Holder's interest in the capital stock of VCT to
Avistar as follows:
(i) RULE 144. Avistar acknowledges that the capital stock of VCT
must be held indefinitely unless subsequently registered under the Securities
Act or an exemption from such registration is available. Avistar is aware of the
provisions of Rule 144 promulgated under the Securities Act which permit limited
resale of shares purchased in a private placement subject to the satisfaction of
certain conditions, including, among other things, the existence of a public
market for the shares, the availability of certain current public information
about each Holder, the resale occurring not less than one year after a party has
purchased and paid for the security to be sold, the sale being effected through
a "broker's transaction" or in transactions directly with a "market maker" (as
provided by Rule 144(f)) and the number of shares being sold during any
three-month period not exceeding specified limitations.
(ii) NO PUBLIC MARKET. Avistar understands that no public market
now exists for any of the VCT capital stock, that each Holder and VCT have made
no assurances that a public market will ever exist for the capital stock of VCT
and that, even if such a public market exists at
-2-
3
some future time, Avistar may not then be satisfying the current public
information requirements of Rule 144.
(iii) AUTHORIZATION. This Agreement when executed and delivered
by Avistar will constitute a valid and legally binding obligation of Avistar,
enforceable in accordance with its terms subject to bankruptcy, insolvency,
fraudulent conveyance, moratorium or other laws affecting creditors' rights
generally and to equitable principles of general applicability.
c. VCT hereby represents and warrants to each Holder with respect to the
contribution of such Holder's interest in the capital stock of VCT to Avistar
that this Agreement when executed and delivered by VCT will constitute a valid
and legally binding obligation of VCT, enforceable in accordance with its terms
subject to bankruptcy, insolvency, fraudulent conveyance, moratorium or other
laws affecting creditors' rights generally and to equitable principles of
general applicability.
6. MISCELLANEOUS.
a. SUCCESSORS. This Agreement shall bind and inure to the benefit of the
parties hereto and its respective successors and assigns.
b. GOVERNING LAW. Any action or proceeding to interpret, construe or
enforce this Agreement may be instituted and prosecuted only in a state court
located in San Mateo county, California, or if requisite jurisdiction exists, in
the United States District Court for Northern California. This Agreement shall
be governed by and interpreted and construed in accordance with the laws of the
State of California.
c. ENTIRE AGREEMENT. This Agreement and the Exhibit A hereto constitute
the entire agreement of the parties and supersede all prior or contemporaneous
agreements, communications, negotiations and understandings, written or oral,
between the parties, regarding the subject matter hereof and thereof.
d. WAIVER, MODIFICATION, OR AMENDMENT. No waiver, modification or
amendment of this Agreement shall be enforceable unless in writing and executed
by the party against whom such waiver, modification or amendment is claimed.
e. SEVERABILITY. If any provision of this Agreement is held to be
illegal, invalid or unenforceable, the legality, validity and enforceability of
the remaining provisions shall not be affected or impaired.
-3-
4
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as the day and the year first
set forth above.
VCT, INC.
a Nevada corporation
By:
---------------------------------------
Xxxxxx X. Xxxxxxx
President and Chairman of the Board
of Directors
AVISTAR SYSTEMS CORPORATION
a Delaware corporation
By:
---------------------------------------
Xxxxxx X. Xxxxxxx
Chief Executive Officer
"HOLDERS"
XXXXXX X. XXXXXXX AND XXXXXXXX X. XXXXXXX
REVOCABLE TRUST
By:
---------------------------------------
Xxxxxx X. Xxxxxxx
Trustee
5
XXXXXXXXX REVOCABLE TRUST
By:
---------------------------------------
R. Xxxxxxx Xxxxxxxxx
Trustee
XXXXXXX X. XXXXXXXX
------------------------------------------
-2-
