EXHIBIT 2.5
CONTRIBUTION AGREEMENT
This CONTRIBUTION AGREEMENT ("AGREEMENT") is entered into as of
December 7, 1999 among THE TITAN CORPORATION a Delaware corporation
("Titan"), XXXXXXX.XXX, INC., a Delaware corporation ("Company"), XXXX XXX,
an individual, and TRANSNATIONAL PARTNERS II, LLC, a limited liability
company ("TNP") (Titan, Xxxx Xxx and TNP shall sometimes be referred to
herein individually as a "CONTRIBUTOR" and collectively as the
"CONTRIBUTORS").
WHEREAS, Titan, Xxxx Xxx and TNP have agreed to form the Company in
order to transfer certain assets and property of Titan now used in connection
with the business of Xxxxxxx.xxx, Inc. (which shall change its name to
Cayenta Operating Company prior to the Closing) to the Company in exchange
for shares of capital stock of the Company and in order to facilitate the
concurrent acquisition of certain shares of Assist Cornerstone Technologies,
Inc. ("ASSIST");
WHEREAS, Titan desires to contribute and assign to the Company all
right, title and interest in and to those assets listed on Exhibit A hereto
in exchange for an aggregate of 10,000,000 shares of Class B Common Stock of
the Company (the "CLASS B SHARES") (the rights, preferences and privileges of
which are as set forth in the Certificate of Incorporation of the Company
attached hereto as Exhibit D) pursuant to Section 351 of the Internal Revenue
Code of 1986, as amended (the "CODE");
WHEREAS, Xxxx Xxx desires to contribute to the Company the property
listed on Exhibit B hereto in exchange for an aggregate of 50,000 shares of
Class A Common Stock of the Company (the "CLASS A SHARES") pursuant to
Section 351 of the Code;
WHEREAS, TNP desires to contribute to the Company the property
listed on Exhibit C hereto in exchange for an aggregate of 2,345,000 Series A
Preferred Stock of the Company (the "PREFERRED SHARES," together with the
Class A Shares and Class B Shares, the "SHARES") pursuant to Section 351 of
the Code;
WHEREAS, concurrent with the execution of this Agreement, the
Company, Cayenta Operating Company, Titan and the shareholders of Assist
shall enter into a Stock Exchange and Stock Purchase Agreement ("Exchange
Agreement"), together with the exhibits thereto, including the Investor
Rights Agreement (collectively, the "RELATED AGREEMENTS");
WHEREAS, the contributions pursuant to this Agreement and the
exchange pursuant to the Agreement are part of a plan under Section 351 of
the Internal Revenue Code of 1986, as amended, and are intended to close
concurrently; and
WHEREAS, the parties desire to enter into this Agreement with
respect to the assets and property being contributed and assigned to the
Company by Titan, Xxxx Xxx and TNP and the Company desires to accept such
contribution and assignment, on the terms set forth in this Agreement.
1.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and conditions set forth below, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
the parties to this Agreement agree as follows:
1. CONTRIBUTION OF ASSETS; ASSUMPTION OF LIABILITIES
1.1 CONTRIBUTION OF ASSETS BY TITAN. At the Closing, Titan
shall grant, sell, convey, transfer, assign, release and deliver to the
Company all right, title and interest in and to the assets set forth on
Exhibit A hereto, to have and hold the same unto itself, its successors and
assigns forever, and the Company shall accept such grant, sale, conveyance,
etc.
1.2 ASSUMPTION OF LIABILITIES BY THE COMPANY. At the Closing,
Titan shall transfer, assign and delegate to the Company all of the
liabilities set forth on Exhibit A hereto (the "LIABILITIES"), and the
Company shall accept such transfer, assignment and delegation and assume and
undertake to become liable for such Liabilities and agree to faithfully pay,
perform and discharge such Liabilities when due. The Company further agrees
that it shall indemnify, defend and hold harmless Titan, its affiliates,
agents, officers, directors and employees from and against any and all
losses, damages, liabilities expenses, costs, assessments and taxes
(including, without limitation, interest, penalties and attorneys' fees)
arising from or in connection with any debts, liabilities, obligations or
contracts assumed under this Agreement.
1.3 CONTRIBUTION OF ASSETS BY XXXX XXX. At the Closing, Xxxx
Xxx shall grant, sell, convey, transfer, assign, release and deliver to the
Company all right, title and interest in and to the assets set forth on
Exhibit B hereto, to have and hold the same unto itself, its successors and
assigns forever, and the Company shall accept such grant, sale, conveyance,
etc.
1.4 CONTRIBUTION OF ASSETS BY TNP. At the Closing, TNP shall
grant, sell, convey, transfer, assign, release and deliver to the Company all
right, title and interest in and to the assets set forth on Exhibit C hereto,
to have and hold the same unto itself, its successors and assigns forever,
and the Company shall accept such grant, sale, conveyance, etc.
2. ISSUANCE OF SHARES; ITEMS TO BE DELIVERED AT CLOSING
2.1 ISSUANCE OF SHARES. Subject to the terms and conditions
hereof, at the Closing (as hereinafter defined) the Company agrees to issue,
in consideration for the assets and property contributed by the respective
parties pursuant to Section 1.1, Section 1.2 and Section 1.3 that number of
Class B Shares, Class A Shares or Preferred Shares, as applicable, as follows:
Name Number of Shares
---- ----------------
Titan 10,000,000 shares of Class B Common Stock
Xxxx Xxx 50,000 shares of Class A Common Stock
TNP 2,345,000 shares of Series A Preferred Stock
2.2 CLOSING DATE. The issuance of the Class B Shares, Class A
Shares and the Preferred Shares, the contribution of assets and property and
the other transactions contemplated
2.
hereunder (the "CLOSING") shall take place at the offices of Xxxxxx Godward
LLP at 0000 Xxxxxxxxx Xxxxx, Xxxxx 0000, Xxx Xxxxx, Xxxxxxxxxx 00000 on
December 13, 1999, or at such other time upon which the Contributors shall
agree which shall in any event be no later than the date on which the
transactions contemplated under the Stock Exchange and Stock Purchase
Agreement are closed.
2.3 DELIVERY OF CLASS B SHARES, CLASS A SHARES AND PREFERRED
SHARES. At the Closing, the Company shall issue and deliver to each
Contributor one or more certificates representing the Class B Shares, Class A
Shares and Preferred Shares, as applicable, in consideration for the
contribution of the assets and property set forth herein. Such certificate or
certificates evidencing the Class B, Class A Shares and Preferred Shares
shall be registered in the name of the applicable Contributor on the books
and records of Company.
2.4 CONDITION TO CLOSING. The obligations of the parties to
contribute assets or issue shares and to take any other actions required to
be taken by the parties hereto shall be subject to the closing of the
transactions contemplated under the Stock Exchange and Stock Purchase
Agreement.
2.5 ITEMS TO BE DELIVERED AT THE CLOSING.
(a) INVESTOR RIGHTS AGREEMENT. The Company, Titan
and the shareholders of Assist shall deliver a fully executed Investor Rights
Agreement.
(b) TITAN ASSETS. Titan shall deliver the assets
listed on Exhibit A hereto as well as an Assignment and Assumption Agreement
evidencing the transfer of such assets. Each stock certificate shall be duly
endorsed or shall be accompanied by an executed stock power in favor of the
Company.
(c) XXXX XXX ASSETS. Xxxx Xxx shall deliver the
assets listed on Exhibit B hereto. Each stock certificate shall be duly
endorsed or shall be accompanied by an executed stock power in favor of the
Company.
(d) TNP ASSETS. TNP shall deliver the assets
listed on Exhibit C hereto. Each stock certificate shall be duly endorsed or
shall be accompanied by an executed stock power in favor of the Company.
(e) CERTIFIED COPY OF THE CERTIFICATE OF
INCORPORATION OF THE COMPANY. The Company shall deliver a certified copy of
the Certificate of Incorporation of the Company filed with the Secretary of
State of the State of Delaware.
3. REPRESENTATIONS, WARRANTIES, AND COVENANTS OF THE CONTRIBUTORS. Each
of the Contributors hereby represents, warrants, and covenants to the Company
as follows:
3.1 REQUISITE POWER AND AUTHORITY.
3.
(a) Contributor has all necessary power and authority under
all applicable provisions of law to execute and deliver this Agreement and to
carry out its provisions. All action on Contributor's part required for the
lawful execution and delivery of this Agreement has been or will be taken
prior to the Closing. Upon its execution and delivery, this Agreement will be
a valid and binding obligation of Contributor, enforceable in accordance with
its terms, except (a) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other laws of general application affecting
enforcement of creditors' rights and (b) general principles of equity that
restrict the availability of equitable remedies.
(b) TNP represents that it has obtained all necessary
consents and/or approvals of the limited partners of TNP to enter into this
Agreement and the Related Agreements and to perform its obligations set forth
hereunder and thereunder.
3.2 INVESTMENT REPRESENTATIONS. Contributor understands that
the Shares have not been registered under the Securities Act of 1933, as
amended (the "SECURITIES ACT"). Contributor also understands that the Shares
are being offered and sold pursuant to an exemption from registration
contained in the Securities Act based in part upon Contributor's
representations contained in this Agreement. Each Contributor hereby further
represents and warrants as follows:
(a) CONTRIBUTOR BEARS ECONOMIC RISK. Contributor has
substantial experience in evaluating and investing in private transactions of
securities in companies similar to the Company so that it is capable of
evaluating the merits and risks of its investment in the Company and has the
capacity to protect its own interests. Contributor must bear the economic
risk of this investment indefinitely unless the Shares are registered
pursuant to the Securities Act, or an exemption from registration is
available. Contributor understands that the Company has no present intention
of registering the Shares or any shares of the Company's Common Stock.
Contributor also understands that there is no assurance that any exemption
from registration under the Securities Act will be available and that, even
if available, such exemption may not allow Contributor to transfer all or any
portion of the Shares under the circumstances in the amounts or at the times
Contributor might propose.
(b) ACQUISITION FOR OWN ACCOUNT. Contributor is acquiring
the Shares for Contributor's own account for investment only, and not with a
view towards their distribution within the meaning of the Securities Act and
the California Corporate Securities Law of 1968, as amended.
(c) CONTRIBUTOR CAN PROTECT ITS INTEREST. Contributor
represents that by reason of Contributor's business or financial experience,
Contributor has the capacity to protect Contributor's own interests in
connection with the transactions contemplated in this Agreement.
(d) COMPANY INFORMATION. Contributor has had an opportunity
to discuss the Company's business, management and financial affairs with
directors, officers and management of the Company and has had the opportunity
to review the Company's operations and facilities. Contributor has also had
the opportunity to ask questions of and receive answers from, the Company and
its management regarding the terms of this transaction.
4.
(e) RULE 144. Contributor acknowledges and agrees that the
Shares must be held indefinitely unless they are subsequently registered
under the Securities Act or an exemption from such registration is available.
Contributor has been advised or is aware of the provisions of Rule 144
promulgated under the Securities Act as in effect from time to time, which
permits limited resale of shares purchased in a private transaction subject
to the satisfaction of certain conditions, including, among other things: the
availability of certain current public information about the Company, the
resale occurring following the required holding period under Rule 144
promulgated under the Securities Act and the number of shares being sold
during any three-month period not exceeding specified limitations.
(f) RESIDENCE. Contributor resides or has a principal place
of business in the state of California.
4. REPRESENTATION, WARRANTIES AND COVENANTS OF THE COMPANY. The Company
hereby represents, warrants, and covenants to the Contributors as follows:
4.1 ORGANIZATION, GOOD STANDING AND QUALIFICATION. The Company
is duly organized, validly existing and in good standing under the laws of
the State of Delaware. The Company has all requisite corporate power and
authority to own and operate its properties and assets, to execute and
deliver this Agreement, to issue, sell and deliver the Class B Shares, Class
A shares and the Preferred Shares as the case may be, and to carry out the
provisions of this Agreement.
4.2 CAPITALIZATION. The authorized capital stock of the
Company, as of the date hereof and immediately prior to the Closing, will
consist of 150,000,000 shares of Common Stock, of which 100,000,000 shall be
designated Class A Common Stock, none of which are issued and outstanding,
and 50,000,000 of which are designated Class B Common Stock, none of which
are issued or outstanding, and 17,345,000 shares of Preferred Stock, of which
2,345,000 shall be designated Series A Preferred Stock, none of which are
issued or outstanding. The Company has reserved 2,450,000 shares of its Class
A Common Stock for issuance under its 1997 Stock Option Plan. The rights,
preferences, privileges and restrictions of the Company's Class A Common
Stock, Class B Common Stock and Series A Preferred Stock are as stated in the
Company's Certificate of Incorporation. As of the Closing Date, there are no
outstanding options, warrants, rights (including conversion or preemptive
rights and rights of first refusal), proxy or stockholder agreements, or
agreements of any kind for the purchase or acquisition from the Company of
any of its securities or which are convertible into or exercisable for
securities of the Company other than options to purchase Class A Common Stock
of the Company outstanding and granted under its 1997 Stock Option Plan and
warrants to purchase 493,800 shares of Class A Common Stock. As of the
Closing Date, the Class A Shares, the Class B Shares and the Preferred Shares
shall be validly issued, fully paid and nonassessable, and are free of any
restrictions, limits, claims, liens or other encumbrances; provided, however,
that the Class A Shares, the Class B Shares and the Preferred Shares may be
subject to restrictions on transfer under state and/or federal securities
laws as set forth herein or as otherwise required by such laws at the time a
transfer is proposed.
5.
4.3 AUTHORIZATION; BINDING OBLIGATIONS. The Agreement, when
executed and delivered, will be a valid and binding obligation of the Company
enforceable in accordance with its terms, except (a) as limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other laws of general
application affecting enforcement of creditors' rights and (b) general
principles of equity that restrict the availability of equitable remedies.
The sale of the Class B Shares, the Class A Shares and the Preferred Shares
is not subject to any preemptive or similar rights or rights of first refusal
that have not been properly waived or complied with.
4.4 OFFERING VALID. Assuming the accuracy of the
representations and warranties of each of the Contributors contained in
Section 3 hereof, the offer, sale and issuance of the Class B Shares, the
Class A Shares and the Preferred Shares, as applicable, will be exempt from
the registration requirements of the Securities Act and will have been
registered or qualified (or are exempt from registration and qualification)
under the registration, permit or qualification requirements of all
applicable state securities laws.
5. OPTION PLAN AMENDMENTS.
5.1 Effective as of the Closing, Cayenta Operating Company's
1997 Stock Option Plan (the "PLAN") shall be assumed by the Company and
amended to provide that 2,450,000 shares of Class A Common Stock are reserved
for issuance thereunder.
5.2 Effective as of the Closing, each outstanding option
agreement to purchase Common Stock of Cayenta Operating Company issued under
the Plan shall be amended to become an option to purchase Class A Common
Stock of the Company pursuant to Section 11(a) of the Plan.
6. EMPLOYEES. Effective as of the Closing, all employees of the
Information Technologies Division of Titan shall become employees of the
Company.
7. MISCELLANEOUS.
7.1 GOVERNING LAW. This Agreement shall be governed in all
respects by the laws of the State of California as such laws are applied to
agreements between California residents entered into and performed entirely
in California.
7.2 SURVIVAL. The representations, warranties, covenants and
agreements made herein shall survive any investigation made by each
Contributor and the closing of the transactions contemplated hereby.
7.3 SUCCESSORS AND ASSIGNS. Except as otherwise expressly
provided herein, the provisions hereof shall inure to the benefit of, and be
binding upon, the successors, assigns, heirs, executors and administrators of
the parties hereto and shall inure to the benefit of and be enforceable by
each person who shall be a holder of the Class B Shares, Class A Shares or
Preferred Shares, as the case may be, from time to time.
6.
7.4 ENTIRE AGREEMENT. This Agreement and the other documents
delivered pursuant hereto constitute the full and entire understanding and
agreement between the parties with regard to the subject matter hereof and no
party shall be liable or bound to any other in any manner by any
representations, warranties, covenants and agreements except as specifically
set forth herein and therein.
7.5 SEVERABILITY. In case any provision of this Agreement shall
be invalid, illegal or unenforceable, the parties intend that (a) in lieu of
such provision there be added as part of this Agreement a provision as
similar in terms to such invalid, illegal or unenforceable provision as may
be possible and be valid, legal and enforceable and (b) the validity,
legality and enforceability of the remaining provisions, or any subsequent
applications thereof, shall not in any way be affected or impaired thereby.
7.6 AMENDMENT AND WAIVER.
(a) This Agreement may be amended or modified only upon the
written consent of the Company and each Contributor.
(b) The rights of each Contributor may be waived only with the
written consent of the Company and each Contributor.
7.7 DELAYS OR OMISSIONS. It is agreed that no delay or omission
to exercise any right, power or remedy accruing to any party, upon any
breach, default or noncompliance by another party under this Agreement shall
impair any such right, power or remedy, nor shall it be construed to be a
waiver of any breach, default or noncompliance, or any acquiescence therein,
or of or in any similar breach, default or noncompliance thereafter
occurring. All remedies, either under this Agreement, by law, or otherwise
afforded to any party, shall be cumulative and not alternative.
7.8 NOTICES. All notices required or permitted hereunder shall
be in writing and shall be deemed effectively given: (a) upon personal
delivery to the party to be notified; (b) when sent by confirmed telex or
facsimile if sent during normal business hours of the recipient, if not, then
on the next business day; (c) five (5) days after having been sent by
registered or certified mail, return receipt requested, postage prepaid; or
(d) one (1) day after deposit with a nationally recognized overnight courier,
specifying next day delivery, with written verification of receipt. All
communications shall be sent to the Contributors at the respective addresses
set forth below or at such other address as Contributor may designate by ten
(10) days advance written notice to the other party hereto:
Addresses for Notices:
If to the Company:
Xxxxxxx.xxx
000 Xxxxxxxx, Xxxxx 0000
Xxx Xxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
7.
Phone: (000) 000-0000
Fax:
If to Titan:
The Titan Corporation
0000 Xxxxxxx Xxxx Xxxx
Xxx Xxxxx, XX 00000-0000
Attn:
Fax: (000) 000-0000
If to Xxxx Xxx:
c/o The Titan Corporation
The Titan Corporation
0000 Xxxxxxx Xxxx Xxxx
Xxx Xxxxx, XX 00000-0000
Attn: Xxxx Xxx
Fax: (000) 000-0000
If to TNP:
c/o Xxxxxxx.xxx
000 Xxxxxxxx, Xxxxx 0000
Xxx Xxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
Phone: (000) 000-0000
Fax:
7.9 EXPENSES. Each party shall pay all costs and expenses that
it incurs with respect to the negotiation, execution, delivery and
performance of the Agreement.
7.10 TITLES AND SUBTITLES. The titles of the sections and
subsections of the Agreement are for convenience of reference only and are
not to be considered in construing this Agreement.
7.11 COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall be an original, but all of which
together shall constitute one instrument.
7.12 BROKER'S FEES. Each party hereto represents and warrants
that no agent, broker, investment banker, person or firm acting on behalf of
or under the authority of such party hereto is or will be entitled to any
broker's or finder's fee or any other commission directly or indirectly in
connection with the transactions contemplated herein. Each party hereto
further agrees to indemnify each other party for any claims, losses or
expenses incurred by such other party as a result of the representation in
this Section 6.12 being untrue.
7.13 PRONOUNS. All pronouns contained herein, and any variations
thereof, shall be deemed to refer to the masculine, feminine or neutral,
singular or plural, as to the identity of the parties hereto may require.
8.
7.14 PUBLIC DISCLOSURE. Unless otherwise required by law or by
obligations pursuant to any listing agreement or rules of any securities
exchange (in which case the disclosing party shall employ reasonable best
efforts to provide the other parties hereto with as much notice as possible
with respect to the contemplated disclosure and the content of the
disclosure) or as otherwise contemplated by or to enforce this Agreement, no
disclosure (whether or not in response to an inquiry) of the subject matter
of this Agreement and the other transactions contemplated by this Agreement
without the prior consultation and consent of the other parties.
7.15 LEGEND. Each certificate representing shares issued under
this Agreement shall be stamped or otherwise imprinted with a legend
substantially similar to the following (in addition to any legend required
under applicable state securities laws):
THE SECURITIES REPRESENTED HEREBY HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 (THE "ACT") AND MAY NOT BE OFFERED,
SOLD OR OTHERWISE TRANSFERRED, ASSIGNED,
PLEDGED OR HYPOTHECATED UNLESS AND UNTIL
REGISTERED UNDER THE ACT OR UNLESS THE
COMPANY HAS RECEIVED AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY AND ITS COUNSEL
THAT SUCH REGISTRATION IS NOT REQUIRED.
[THE REST OF THIS PAGE INTENTIONALLY LEFT BLANK]
9.
IN WITNESS WHEREOF, the parties hereto have executed this CONTRIBUTION
AGREEMENT as of the date set forth in the first paragraph hereof.
CONTRIBUTORS:
THE TITAN CORPORATION
By:_________________________
Name:_______________________
Title:______________________
TRANSNATIONAL PARTNERS II, LLC
a California Limited Liability Company
By:_________________________
Name:_______________________
Title: GENERAL PARTNER
______________________
Name:_______________________
Xxxx Xxx
COMPANY:
XXXXXXX.XXX, INC.
By:_________________________
Name:_______________________
Title:______________________
SIGNATURE PAGE TO CONTRIBUTION AGREEMENT
EXHIBIT A
ASSETS CONTRIBUTED BY TITAN
A. ASSETS
1. 10,000,000 shares of Common Stock of Xxxxxxx.xxx Inc.
2. All of the assets of the Information Technologies Division of
Titan headquartered in Reston, Virginia, excluding the
excluded assets as set forth on Annex I hereto.
3. The fixed assets of the Client Server Division as set forth on
Annex II hereto.
4. $7,000,000 in cash to be delivered by check or wire transfer
in immediately available funds.
B. LIABILITIES.
1. The liabilities of the Information Technologies Division,
excluding the obligations and liabilities under any excluded
assets and Excluded Liabilities as set forth on Annex 1.
ANNEX I
ASSETS:
The assets of the Information Technologies Division of Titan shall
mean and include: (a) all of the properties, rights, interests and other
tangible and intangible assets of Titan's Information Technologies Division
(wherever located and whether or not required to be reflected on a balance
sheet prepared in accordance with generally accepted accounting principles);
PROVIDED, HOWEVER, that such assets shall not include any Excluded Assets (as
defined below). Without limiting the generality of the foregoing, the Assets
shall include:
(1) all inventories and work-in-progress;
(2) unbilled accounts receivable in total book value
of $1,052,094 under FAA Contract F049 as set forth on the attached
detail;
(3) all equipment, materials, prototypes, tools,
supplies, vehicles, furniture, fixtures, improvements and other
tangible assets;
(4) all advertising and promotional materials;
(5) all proprietary assets, intellectual property,
general intangibles, and goodwill;
(6) all governmental authorizations to the extent
transferable;
(7) all claims (including claims for past
infringement of proprietary assets or intellectual property) and causes
of action against other persons (regardless of whether or not such
claims and causes of action have been asserted), and all rights of
indemnity, warranty rights, rights of contribution, rights to refunds,
rights of reimbursement and other rights of recovery (regardless of
whether such rights are currently exercisable);
(8) all contracts; provided, however that to the
extent any contract for which assignment is provided for herein is not
assignable pursuant to such contract without the written consent of
another party or requires novation, if assigned, this Agreement shall
not constitute an assignment or an attempted assignment thereof if such
assignment or attempted assignment would constitute a breach thereof.
To the extent a contract is not assigned pursuant to this provision,
Titan shall cooperate with the Company and shall use its commercial
best efforts in any reasonable arrangement to provide the Company the
economic and other benefits intended to be assigned to the Company
under the relevant contract; and
(9) all books, records, files and data.
EXCLUDED ASSETS:
The Excluded Assets shall mean and include:
(1) all accounts receivable related to Titan's
Information Technologies Division not set forth above; and
(2) the following contract: FAA Contract F049.
; provided, however, that Titan shall cooperate with the Company and shall use
its commercial best efforts in any reasonable arrangement to provide the Company
the economic or other benefits received under the contracts set forth in this
subpart.
EXCLUDED LIABILITIES:
The Excluded Liabilities shall mean and include:
(1) Any and all intercompany and interdivisional
payables between the Information Technologies Division and Titan or any
affiliate of Titan.
EXHIBIT B
ASSETS CONTRIBUTED BY XXXX XXX
1. 50,000 shares of Common Stock of Xxxxxxx.xxx Operating Company.
EXHIBIT C
ASSETS CONTRIBUTED BY TRANSNATIONAL PARTNERS
1. 2,345,000 shares of Series A Preferred Stock of Xxxxxxx.xxx Operating
Company.
EXHIBIT D
FORM OF CERTIFICATE OF INCORPORATION
XXXXXXX.XXX, INC.
SECTION 351 PLAN
XXXXXXX.XXX, INC., a Delaware corporation (the "Company"), hereby
adopts the following plan under Section 351 of the Internal Revenue Code of
1986, as amended (the "Code") for the purpose of completing the initial
capitalization of the Company through the simultaneous closing of
transactions intended as a single transaction under Section 351.
The Company is a party to that certain Stock Exchange and Stock
Purchase Agreement, dated as of December 7, 1999, with Cayenta Operating
Company, a Delaware corporation ("Cayenta Sub"), The Titan Corporation, a
Delaware corporation ("Titan"), Assist Cornerstone Technologies, Inc., a Utah
corporation ("Assist"), and certain shareholders of Assist (the "Selling
Shareholders") pursuant to which the Company has agreed to exchange 516,458
shares of Class A Common Stock of the Company for 2,015,838 shares of Assist
held by the Selling Shareholders and Cayenta Sub has agreed to purchase
7,707,617 shares of Assist from the Selling Shareholders for cash.
The Company also has entered into a Contribution Agreement, dated
December 7, 1999, between the Company, Titan, Xxxx Xxx, an individual, and
Transnational Partners, a limited partnership ("TNP") relating to Titan's,
Xxxx Xxx'x and TNP's contribution of certain assets to the Company in
exchange for certain capital stock of the Company.
The Company intends for each of these contributions or purchases to
occur simultaneously in a single transaction exempt under Section 351 of the
Code (the "Section 351 Transaction."). The Section 351 Transaction will
result in the transfers of property or cash to the Company in exchange for
the stock, cash and other rights as set forth on Exhibit A hereto.
EXHIBIT A
------------------------------------- ----------------------------------------- --------------------------------------
NAME OF TRANSFEROR PROPERTY CONTRIBUTED TO COMPANY PROPERTY RECEIVED FROM COMPANY IN
EXCHANGE
------------------------------------- ----------------------------------------- --------------------------------------
10,000,000 shares of Common Stock of 10,000,000 shares of Class B Common
TITAN Xxxxxxx.xxx, Inc. Stock of Xxxxxxx.xxx, Inc.
Certain assets of the information
technology division of Titan.
The fixed assets of the client server
division of Titan
------------------------------------- ----------------------------------------- --------------------------------------
XXXX XXX 50,000 shares of Common Stock of 50,000 shares of Class A Common
Xxxxxxx.xxx, Inc. Stock of Xxxxxxx.xxx, Inc.
------------------------------------- ----------------------------------------- --------------------------------------
TRANSNATIONAL PARTNERS II, LLC 2,345,000 shares of Series A Preferred 2,345,000 shares of Series A
Stock of Xxxxxxx.xxx, Inc. Preferred Stock of Xxxxxxx.xxx, Inc.
------------------------------------- ----------------------------------------- --------------------------------------
SELLING SHAREHOLDERS 2,015,838 shares of Common Stock of 516,458 shares of Class A Common
OF ASSIST Assist Stock of Xxxxxxx.xxx, Inc.
------------------------------------- ----------------------------------------- --------------------------------------
