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Exhibit 2.1
AGREEMENT AND
PLAN OF MERGER
AMONG
FOURTHSTAGE TECHNOLOGIES, INC.,
APERIAN, INC.,
APERIAN MERGER CORPORATION, INC.,
XXXXX XXXXXXX, XXXXX X. XXXXX,
VAN DE VREDE FAMILY TRUST, XXX XXXXXXX,
XXXX XXXXX, TRIPLE FIVE INVESTMENTS,
REGENT NET LLC, XXXX XXXXX, XXXXX XXXXX,
XXXXXX XXXXX, XXXX XXXXX AND XXXXX XXXXX
DATED AS OF APRIL 6, 2001
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TABLE OF CONTENTS
PAGE
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ARTICLE 1 THE MERGER............................................................................2
SECTION 1.1. The Merger......................................................................2
SECTION 1.2. Merger Consideration............................................................3
SECTION 1.3. Options and Warrants............................................................3
ARTICLE 2 CERTIFICATES, BYLAWS, DIRECTORS AND OFFICERS..........................................4
SECTION 2.1. Certificate of Incorporation of Surviving Corporation...........................4
SECTION 2.2. Bylaws of Surviving Corporation.................................................4
SECTION 2.3. Directors and Officers of Surviving Corporation.................................4
SECTION 2.4. Bylaws of Aperian...............................................................4
SECTION 2.5. Directors and Officers of Aperian...............................................4
SECTION 2.6. Composition of Nominating and Governance Committee of Aperian...................4
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND FOURTHSTAGE SHAREHOLDERS............5
SECTION 3.1. Corporate Existence and Power...................................................5
SECTION 3.2. Subsidiaries....................................................................5
SECTION 3.3. Corporate Records...............................................................5
SECTION 3.4. Corporate Authorization.........................................................5
SECTION 3.5. Governmental Authorization......................................................6
SECTION 3.6. Non-Contravention...............................................................6
SECTION 3.7. Capitalization..................................................................7
SECTION 3.8. Company Financial Statements....................................................7
SECTION 3.9. Absence of Certain Changes......................................................8
SECTION 3.10. Litigation.....................................................................8
SECTION 3.11. Employee Benefit Plans.........................................................8
SECTION 3.12. Taxes .........................................................................8
SECTION 3.13. Compliance With Laws...........................................................9
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SECTION 3.14. Finders' Fees..................................................................9
SECTION 3.15. Material Contracts.............................................................9
SECTION 3.16. Title to Assets................................................................9
SECTION 3.17. Investment Intent..............................................................9
SECTION 3.18. Sophisticated Investor Status..................................................9
SECTION 3.19. Legend .......................................................................10
SECTION 3.20. No Other Representations......................................................10
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF APERIAN AND MERGER SUB.............................10
SECTION 4.1. Corporate Existence and Power..................................................10
SECTION 4.2. Subsidiaries..................................................................11
SECTION 4.3. Corporate Records..............................................................11
SECTION 4.4. Corporate Authorization........................................................11
SECTION 4.5. Governmental Authorization.....................................................12
SECTION 4.6. Non-Contravention..............................................................12
SECTION 4.7. Aperian SEC Reports and Financial Statements...................................12
SECTION 4.8. Capitalization.................................................................13
SECTION 4.9. Aperian Financial Statements...................................................14
SECTION 4.10. Absence of Certain Changes....................................................14
SECTION 4.11. Litigation....................................................................15
SECTION 4.12. Employee Benefit Plans........................................................15
SECTION 4.13. Taxes ........................................................................15
SECTION 4.14. Compliance With Laws..........................................................15
SECTION 4.15. Takeover Statutes.............................................................15
SECTION 4.16. Finders' Fees.................................................................15
SECTION 4.17. Material Contracts............................................................16
SECTION 4.18. Title to Assets...............................................................16
SECTION 4.19. No Other Representations......................................................16
SECTION 4.20. Financing.....................................................................16
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ARTICLE 5 INDEMNIFICATION......................................................................16
SECTION 5.1. Survival of Representations and Warranties.....................................16
SECTION 5.2. Company Indemnity; Set-off Arrangements........................................16
SECTION 5.3. Maximum Payments...............................................................19
SECTION 5.4. Indemnification by Aperian.....................................................19
SECTION 5.5. Special Tax Indemnification....................................................19
SECTION 5.6. Indemnification Procedures.....................................................19
SECTION 5.7. Resolution of Conflicts; Arbitration...........................................20
ARTICLE 6 ADDITIONAL AGREEMENTS................................................................20
SECTION 6.1. Stockholders' and Shareholders' Approval.......................................20
SECTION 6.2. Reasonable Efforts/Consents....................................................20
SECTION 6.3. Additional Nasdaq Listing......................................................20
SECTION 6.4. Closing Conditions.............................................................20
SECTION 6.5. Xxxxx Non-Compete..............................................................20
SECTION 6.6. Board Representation...........................................................21
ARTICLE 7 CONDITIONS TO THE MERGER.............................................................21
SECTION 7.1. Conditions to the Obligations of Each Party....................................21
SECTION 7.2. Conditions to Obligations of Aperian...........................................21
SECTION 7.3. Conditions to Obligations of the Company.......................................22
ARTICLE 8 MISCELLANEOUS........................................................................23
SECTION 8.1. Notices ...................................................................... 23
SECTION 8.2. Amendments; No Waivers.........................................................23
SECTION 8.3. Expenses.......................................................................24
SECTION 8.4. Entire Agreement/No Third Party Beneficiaries..................................24
SECTION 8.5. Waivers .......................................................................24
SECTION 8.6. Amendments, Supplements or Modifications.......................................24
SECTION 8.7. Successors and Assigns.........................................................24
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SECTION 8.8. Governing Law..................................................................24
SECTION 8.9. Exclusive Jurisdiction.........................................................24
SECTION 8.10. Disclosure Schedules..........................................................24
SECTION 8.11. Counterparts; Effectiveness...................................................25
SECTION 8.12. Severability..................................................................25
SECTION 8.13. Incorporation of Exhibits and Schedules.......................................25
SECTION 8.14. Headings......................................................................25
SECTION 8.15. Knowledge.....................................................................25
SECTION 8.16. Construction..................................................................25
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AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER is dated as of April 6, 2001, and
is by and among FOURTHSTAGE TECHNOLOGIES, INC., an Arizona corporation (the
"Company"), APERIAN, INC., a Delaware corporation ("Aperian"), APERIAN MERGER
CORPORATION, INC., a Delaware corporation and a wholly-owned subsidiary of
Aperian ("Merger Sub") and Xxxxx Xxxxxxx, Xxxxx X. Xxxxx, Van de Vrede Family
Trust, Xxx Xxxxxxx, Xxxx Xxxxx, Triple Five Investments, Regent Net LLC, Xxxx
Xxxxx, Xxxxx Xxxxx, Xxxxxx Xxxxx, Xxxx Xxxxx and Xxxxx Xxxxx (collectively, the
"Fourthstage Shareholders").
RECITALS
WHEREAS, the Boards of Directors of Company and Aperian deem it
advisable and in the best interests of their respective shareholders that they
combine their businesses, and to that end the Boards of Directors of the
Company, Aperian and Merger Sub have approved the merger of Company with and
into the Merger Sub upon the terms and subject to the conditions set forth
herein; and
WHEREAS, Aperian has authorized capital stock consisting of
75,000,000 shares of common stock, par value $.01 per share (the "Aperian Common
Stock"), of which 13,559,954 shares are currently issued and outstanding, and
10,000,000 shares of preferred stock, par value $.01 per share (the "Aperian
Preferred Stock"), of which no shares are currently issued and outstanding; and
WHEREAS, Aperian currently also has outstanding common stock purchase
warrants and options entitling the holders thereof to purchase an aggregate of
up to 4,456,937 shares of Aperian Common Stock, all as further described herein
(collectively, the "Aperian Warrants and Options"); and
WHEREAS, Company has authorized capital stock consisting of
50,000,000 shares of common stock, $.001 par value per share (the "Company
Common Stock"), of which 6,780,000 shares are currently issued and outstanding;
and
WHEREAS, Company currently also has outstanding common stock options
entitling the holders thereof to purchase an aggregate of up to 2,235,000 shares
of Company Common Stock, all as further described herein (collectively, the
"Company Options").
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties and covenants set forth herein and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
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ARTICLE 1
THE MERGER
SECTION 1.1. The Merger.
(a) On the terms and subject to the conditions of this
Agreement, at the Effective Time (as defined in Section 1.1(b)), the Company
shall be merged with and into Merger Sub (the "Merger") in accordance with the
relevant provisions of the Arizona Business Corporation Law (the "ABCL") and the
Delaware General Corporation Law (the "DGCL"), whereupon the separate existence
of the Company shall cease, and Merger Sub shall be the surviving corporation
(the "Surviving Corporation"). The existence of the Company shall cease at the
Effective Time as a consequence of the Merger.
(b) The consummation of the Merger (the "Closing") shall
take place (i) at the offices of Xxxxx Xxxx LLP, Xxx Xxxxx Xxxxxxx Xxxxxx, Xxxxx
0000, Xxxxxxx, Xxxxxxx at 10:00 A.M., on such date (the "Closing Date") which is
the later to occur of (A) April 15, 2001 and (B) the date on which the last of
the conditions set forth in Article 7 hereof shall have been satisfied or waived
in accordance with this Agreement, or (ii) such other place, time and date as
the parties hereto shall agree. Prior to the Closing, Merger Sub and the Company
shall execute and deliver to (a) the Secretary of State of the State of Delaware
(the "Delaware Secretary of State"), a Certificate of Merger in the form
attached hereto as Exhibit 1.1(b)(i) hereto for filing under the DGCL on the day
of the Closing, and (b) the Arizona Corporation Commission (the "Arizona
Corporation Commission"), a Certificate and Articles of Amendment and Merger in
the form attached hereto as Exhibit 1.1(b)(ii) hereto for filing under the ABCL
on the day of Closing with the Arizona Corporation Commission, and the Merger
shall become effective upon the filing of the Certificate of Merger with the
Delaware Secretary of State and the filing of the Certificate of Merger with the
Arizona Corporation Commission or at such later time as may be specified in the
Certificates of Merger, such time being herein called the "Effective Time."
(c) The Merger shall have the effects set forth in the ABCL
and DGCL. Without limiting the generality of the foregoing, at the Effective
Time (i) the Surviving Corporation shall possess all assets and property of
every description, and every interest therein, wherever located, and the rights,
privileges, immunities, powers, franchises, and authority, of a public as well
as of a private nature, of each of the Company and Merger Sub and all
obligations belonging to or due each of them shall be vested in the Surviving
Corporation without further act or deed, (ii) title to any real estate or any
interest therein vested in either of the Company or Merger Sub shall not revert
or in any way be impaired by reason of the Merger, (iii) all rights of creditors
and all liens on any property of the Company and Merger Sub shall be preserved
unimpaired, and (iv) the Surviving Corporation shall be liable for all the
obligations of the Company and Merger Sub, and any claim existing, or action or
proceeding pending, by or against either of them, may be prosecuted to judgment
with the right of appeal, as if the Merger had not taken place.
(d) If, at any time after the Effective Time, the Surviving
Corporation shall consider or be advised that any deeds, bills of sale,
assignments, assurances or any other actions or things are necessary or
desirable to vest, perfect or confirm of record or otherwise in the Surviving
Corporation its right, title or interest in, to or under any of the rights,
properties, or assets of the Company or Merger Sub acquired or to be acquired as
a result of, or in connection
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with, the Merger or to otherwise carry out this Agreement, the officers and
directors of the Surviving Corporation shall and will be authorized to execute
and deliver, in the name and on behalf of the parties hereto or otherwise, all
such deeds, bills of sale, assignments and assurances and to take and do, in the
name and on behalf of such parties or otherwise, all such other actions and
things as may be necessary or desirable to vest, perfect or confirm any and all
right, title and interest in, to and under such rights, properties or assets in
the Surviving Corporation or otherwise to carry out this Agreement.
SECTION 1.2. Merger Consideration. At the Effective Time, by virtue
of the Merger and without any action on the part of the holder thereof:
(a) each share of the Company Common Stock held by the
Company as treasury stock prior to the Effective Time shall be canceled,
retired, and shall cease to exist, and no payment shall be made with respect
thereto;
(b) each share of common stock of Merger Sub issued and
outstanding immediately prior to the Effective Time shall be converted into and
become one share of common stock of the Surviving Corporation held by Aperian
with the same rights, powers and privileges as the shares so converted and such
shares in the aggregate shall constitute the only outstanding shares of capital
stock of the Surviving Corporation; and
(c) Shareholders of Company Common Stock outstanding
immediately prior to the Effective Time ("Shares") shall, in return for the
exchange and cancellation of such Shares, receive their pro rata share of the
following: (i) cash equal to three million dollars ($3,000,000) (the "Cash
Consideration"), (ii) 2,698,430 shares of Aperian Common Stock, and (iii)
8,396,077 shares of Aperian Preferred Stock with the rights and preferences set
forth on the Certificate of Designation set forth in Exhibit 1.2(c). One million
five hundred thousand dollars ($1,500,000) of the Cash Consideration shall be
paid at Closing by wire transfer of immediately available funds. Subject to
Section 5 hereof, the remaining $1,500,000 portion of the Cash Consideration
(the "Set-off Amount"), if any, shall be paid in twelve equal monthly
installments commencing seven months after Closing.
SECTION 1.3. Options and Warrants.
(a) At the Effective Time, each holder of a Company Option
then outstanding to the Company's Stock Option Plan ("Plan"), whether or not
such Company Option is exercisable at such time, and whether or not such Company
Option is vested at such time, shall be entitled, in exchange for the
termination of such Company Option, to receive an option to purchase such number
of Shares of Aperian Common Stock as are set forth on Exhibit 1.3, at the per
Share purchase price stated therein pursuant to the Plan.
(b) All Aperian Options and Warrants shall remain
outstanding on the same terms and conditions as existed prior to the Merger.
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ARTICLE 2
CERTIFICATES, BYLAWS, DIRECTORS AND OFFICERS
SECTION 2.1. Certificate of Incorporation of Surviving Corporation.
The Certificate of Incorporation of Merger Sub in effect at the Effective Time
shall be the Certificate of Incorporation of the Surviving Corporation. Upon
Closing of the Merger, the Certificate of Incorporation of Merger Sub shall be
amended to change the name of Merger Sub to Fourthstage Technologies, Inc.
SECTION 2.2. Bylaws of Surviving Corporation. The bylaws of Merger
Sub in effect at the Effective Time shall be the bylaws of the Surviving
Corporation until amended in accordance with the applicable law.
SECTION 2.3. Directors and Officers of Surviving Corporation. From
and after the Effective Time, until successors are duly elected or appointed and
qualified in accordance with applicable law, (a) Xxxxx Xxxxx (Chairman), Xxxxxx
Xxxxx, and Xxxxx Xxxxxxx shall be the directors of the Surviving Corporation,
and (b) the officers of Company at the Effective Time shall be the officers of
the Surviving Corporation.
SECTION 2.4. Bylaws of Aperian. The Bylaws of Aperian in effect at
the Effective Time shall be as set forth on Exhibit 2.4, attached hereto, until
amended in accordance with the applicable law.
SECTION 2.5. Directors and Officers of Aperian. As of the Effective
Time, Aperian shall reduce the size of its Board of Directors to a total of
seven (7) persons. From and after the Effective Time, until their successors are
duly elected or appointed and qualified in accordance with applicable law, (a)
Xxxxx Xxxxxxxxxx, Xxx X. Xxxxxxx, Xxxx Xxxxx, Xxxxx Xxxxx, Xxxxxxxx Xxxxx,
Xxxxxx Xxxxx (Chairman) and Xxxxx Xxxxx (Vice Chairman) shall serve as the
directors of Aperian, and (b) the officers of Aperian at the Effective Time
shall be Xxxxxx Xxxxx (Chairman and co-Chief Executive Officer), Xxxxx Xxxxx
(Vice Chairman, President and co-Chief Executive Officer), Xxxxx Xxxxx
(Executive Vice President and Chief Operating Officer), Xxxx Xxxxxxxx (Vice
President - Chief Financial Officer), Xxxxx Xxxxxxxx (Vice President - New
Markets), Miles Xxxxx (Vice President - Corporate Communication, Marketing),
Xxxxx Xxxxxxxx (Vice President - General Counsel, Secretary), Xxxxxxxxx Xxxxxxx
(Vice President - Accounting), Xxxx Xxxxx (Vice President - Technology
Development), and Xxxxx Xxxxxxxxx (Vice President - Sales).
SECTION 2.6. Composition of Nominating and Governance Committee of
Aperian. From and after the Effective Time, until their successors are duly
elected or appointed and qualified in accordance with applicable law, Xxxxxxxx
Xxxxx and Xxxxx Xxxxx shall serve as the members of the Nominating and
Governance Committee of the Board of Directors of Aperian, with such Committee
to be chaired by Xxxxx Xxxxx.
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ARTICLE 3
REPRESENTATIONS AND WARRANTIES
OF THE COMPANY AND FOURTHSTAGE SHAREHOLDERS
The Company and Fourthstage Shareholders jointly and severally
represent and warrant to Aperian that, except as otherwise disclosed on the
disclosure schedules delivered on or prior to the date hereof to Aperian by the
Company (collectively, the "Company Disclosure Schedule"):
SECTION 3.1. Corporate Existence and Power. The Company is a
corporation duly incorporated, validly existing and in good standing under the
laws of the State of Arizona, and has all corporate powers and all licenses,
authorizations, consents and approvals required to carry on its business as now
conducted other than any such licenses, authorizations, permits, registrations,
consents and approvals the failure of which to have would not reasonably be
expected to have a Company Material Adverse Effect (as defined below). The
Company is duly qualified to do business as a foreign corporation and is in good
standing in each jurisdiction where the character of the property owned or
leased by it or the nature of its activities makes such qualification necessary,
except for those jurisdictions where the failure to be so qualified would not
reasonably be expected to have a Company Material Adverse Effect. The Company
has heretofore delivered to Aperian true and complete copies of the Company's
Articles of Incorporation and Bylaws as currently in effect. For purposes of
this Agreement, a "Company Material Adverse Effect" means a material adverse
effect on the assets, liabilities, business or operations of the Company taken
as a whole, or on the ability of Company to perform its obligations hereunder.
Notwithstanding anything to the contrary herein, a Company Material Adverse
Effect shall not include events, changes or effects relating to or caused by (i)
general economic or industry conditions or (ii) the announcement or pendency of
this Agreement or any of the transactions or actions contemplated hereby.
SECTION 3.2. Subsidiaries. Except as set forth in Section 3.2 of the
Company Disclosure Schedule, the Company does not have and has never had any
subsidiaries or affiliated companies and does not otherwise own and has never
otherwise owned any shares of capital stock or any interest in, or control,
directly or indirectly, any other corporation, partnership, association, joint
venture or other business entity.
SECTION 3.3. Corporate Records. The corporate minute books, transfer
books and stock ledgers of the Company which have been made available to Aperian
are complete in all material respects.
SECTION 3.4. Corporate Authorization.
(a) The execution, delivery and performance by the Company
of this Agreement and the consummation by the Company of the transactions
contemplated hereby are within the Company's corporate powers, subject to the
conditions set forth in this Agreement. This Agreement, the Merger, and the
transactions contemplated hereby have been duly authorized by all necessary
corporate action. Assuming due authorization, execution and delivery of this
Agreement by Aperian and Merger Sub, this Agreement constitutes a valid and
binding agreement of the Company, enforceable against the Company in accordance
with its terms, except as limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws
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relating to or affecting generally the enforcement of creditors rights and by
the availability of equitable remedies.
(b) The Company's Board of Directors by a unanimous written
consent or at a meeting duly called and held, has, by majority vote of the
members of the Company's Board of Directors present at such meeting, duly and
validly approved, and taken all corporate actions required to be taken by the
Company's Board of Directors for the consummation of, the Merger and the other
transactions contemplated hereby. Without limiting the generality of the
foregoing, the Company's Board of Directors has (i) determined that the Merger
is fair and in the best interests of the Company and its shareholders, (ii)
adopted this Agreement in accordance with the Arizona law, and (iii) directed
that this Agreement and the Merger be submitted to the shareholders of the
Company for their adoption and approval and resolved to recommend that the
shareholders of the Company approve and adopt this Agreement and the Merger.
(c) The Company's shareholders, by a unanimous written
consent, have duly and validly approved the Merger and the other transactions
contemplated hereby.
SECTION 3.5. Governmental Authorization. The execution, delivery and
performance by the Company and the Fourthstage Shareholders of this Agreement
and the consummation of the Merger by the Company require no action by or in
respect of, or filing with, any court or tribunal or administrative governmental
or regulatory body, agency, official or authority other than (a) the filing of a
certificate of merger in accordance with the ABCL and DGCL; (b) compliance with
any applicable requirements of the Securities Act of 1933, as amended (the
"Securities Act"); (c) compliance with any applicable foreign or state
securities or blue sky laws; (d) compliance with state takeover, antitrust and
competition law filings and approvals; and (e) such actions by or filings with
governmental bodies, agencies, officials or authorities, the failure of which to
obtain or make would not reasonably be expected to have, individually or in the
aggregate, a Company Material Adverse Effect.
SECTION 3.6. Non-Contravention. The execution, delivery and
performance by the Company and the Fourthstage Shareholders of this Agreement
and the consummation by the Company and the Fourthstage Shareholders of the
transactions contemplated hereby do not and will not, (a) contravene or conflict
with the Articles or Certificate of Incorporation or Bylaws (or similar
governing documents) of the Company, or (b) except for any such matters that do
not have, and would not reasonably be expected to have, a Company Material
Adverse Effect or except as set forth on Section 3.6 of the Company Disclosure
Schedule, (i) assuming compliance with the matters referred to in Section 3.5,
contravene or conflict with or constitute a violation of any provision of any
law, rule, regulation, judgment, injunction, order or decree binding upon or
applicable to the Company or any of their respective assets, (ii) result in a
violation or breach of, or constitute a default under, or give rise to a right
of termination, amendment, cancellation or acceleration of any right or
obligation of the Company and/or the Fourthstage Shareholders or to a loss of
any benefit to which the Company is entitled under any provision of any note,
bond, mortgage, indenture, lease, agreement, contract or other instrument
binding upon the Company and the Fourthstage Shareholders or to which the
Company and/or the Fourthstage Shareholders is a party or by which it is
affected or any license, franchise, permit or other similar authorization held
by the Company or to which the Company is a party or by which it is affected, or
(iii) result in the creation or imposition of any Lien (as defined below) on any
asset of the Company. For purposes of this Agreement, "Lien" means, with respect
to an asset, any mortgage, lien, pledge, charge, security interest or
encumbrance of any kind in respect of such asset.
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SECTION 3.7. Capitalization.
(a) The authorized capital stock of the Company consists of
50,000,000 shares of Company Common Stock. There are issued and outstanding
6,780,000 shares of Company Common Stock and Company Options (all documents with
respect to which have been made available to Aperian for inspection) to purchase
2,235,000 shares of Company Common Stock.
(b) Except as set forth in Section 3.7(b) of the Company
Disclosure Schedule, all outstanding shares of capital stock of the Company have
been duly authorized and validly issued and are fully paid and nonassessable and
were issued free of preemptive or similar rights and in compliance with all
applicable state and federal securities laws and regulations. Except as set
forth in this Section 3.7, there are outstanding (i) no other shares of capital
stock or other voting securities of the Company, (ii) no securities of the
Company convertible into or exchangeable for shares of capital stock or voting
securities of the Company, and (iii) no other options, warrants, calls, rights
(including preemptive rights), commitments or any other agreement of any
character to acquire from the Company, and no obligation of the Company to
issue, transfer, dispose of, sell, purchase, redeem or otherwise acquire (or to
refrain from doing any of the foregoing), any capital stock, voting securities
or securities convertible into or exchangeable for capital stock or voting
securities of the Company (the items in clauses (i), (ii) and (iii) being
referred to collectively as the "Company Securities").
(c) All of the Company Options have been issued pursuant to
the Plan. Section 3.7(c) of the Company Disclosure Schedule sets forth a true,
correct and complete list, as of the date of this Agreement, of the name of each
holder of outstanding Company Options, the exercise price therefor and the
number of shares of Company Common Stock exercisable therefor, and indicating
the portion of such Company Options that are vested.
(d) Except as set forth on Section 3.7(d) of the Company
Disclosure Schedule and except for the Company Options, there are no
shareholders agreements, investors' rights agreements, voting trusts or other
agreements or understandings to which the Company is a party or by which the
Company is bound relating to the voting of, or placing any restrictions on, any
shares of the capital stock of the Company. Except as provided in Section 1.2 of
this Agreement, no consideration is required to be paid to any Person as a
result of its ownership of any equity of the Company with respect to the Merger.
(e) None of the securities of the Company are registered or
required to be registered under the Securities Act and/or the Exchange Act.
SECTION 3.8. Company Financial Statements. The Company's unaudited
balance sheet as of February 28, 2001 (the "Company Balance Sheet Date"),
unaudited balance sheet as of December 31, 2000, and the related unaudited
statements of operations, stockholders' deficit and cash flows for the period
from January 1, 2001 to February 28, 2001, and for the twelve-month period ended
December 31, 2000 (collectively, the "Company Financials"), are correct in all
material respects and have been prepared in accordance with generally accepted
accounting principles ("GAAP") applied on a basis consistent throughout the
periods indicated and consistent with each other. The Company Financials fairly
present the financial condition and operating results of the Company as of the
dates and during the periods indicated therein.
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SECTION 3.9. Absence of Certain Changes. Except as described in
Section 3.9 of the Company Disclosure Schedule, since the Company Balance Sheet
Date, the Company has conducted its business in the ordinary and usual course
and there has not been:
(a) any declaration, setting aside or payment of any
dividend or other distribution with respect to any shares of capital stock of
the Company, or any repurchase, redemption or other acquisition by the Company
of any outstanding shares of capital stock or other ownership interests in, the
Company;
(b) any incurrence, assumption or guarantee by the Company
of any outstanding amount of indebtedness for borrowed money or any other
liabilities of any nature, whether or not accrued, contingent or otherwise,
other than in the ordinary course of business;
(c) any transaction or commitment made, or any contract or
agreement entered into, by the Company relating to its assets or business
(including the acquisition or disposition of any assets) or any loss or
relinquishment by the Company of any material contract or other material right,
other than transactions and commitments in the ordinary course of business in
accordance with its customary practices;
(d) any material change in any method of accounting or
accounting practice or policy or application thereof by the Company, except as
required by GAAP;
(e) any increase in (or commitment, oral or written, to
increase) the rate or terms (including, without limitation, any acceleration of
the right to receive payment) of compensation payable or to become payable by
the Company to its directors, officers, employees or consultants, except
increases occurring in the ordinary course of business; or
(f) any increase in (or commitment, oral or written, to
increase) the rate or terms (including, without limitation, any acceleration of
the right to receive payment) of any bonus, insurance, pension or other employee
benefit plan or contract, payment or arrangement made to, for or with any
director, officer, employee or consultant of the Company, except increases
occurring in the ordinary course of business.
SECTION 3.10. Litigation. Except as set forth in Section 3.10 of the
Company Disclosure Schedule, or as otherwise disclosed to Aperian, there is no
material action, suit or proceeding of any nature pending or, to the best of the
Company's knowledge, threatened against the Company, its properties or any of
its officers or directors, in their respective capacities as such, or any
Fourthstage Shareholders related to their ownership of Company Common Stock.
SECTION 3.11. Employee Benefit Plans. Except as set forth in Section
3.11 of the Company Disclosure Schedule, the Company does not have any employee
pension benefit plan as defined in Section 3(2) of ERISA, that would be subject
to the Federal ERISA laws.
SECTION 3.12. Taxes. All federal, state and other returns and reports
required to be filed by the Company have been duly and timely filed by the
Company and, except as set forth in Section 3.12 of the Company Disclosure
Schedule, all material taxes and other assessments and levies (including all
interest and penalties) including, without limitation, income, franchise, real
estate, sales, gross receipts, use and services taxes, and employment and
employee withholding taxes, owed by the Company have been paid in full by the
Company unless being contested in
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good faith. Except as set forth in Section 3.12 of the Company Disclosure
Schedule, all such taxes and other assessments and levies which the Company is
required by law to have withheld, collected or deposited have been duly withheld
and collected and deposited with the proper governmental authorities or
segregated and set aside for such payment, and if so segregated and set aside,
shall be so paid by the Company as required by law.
SECTION 3.13. Compliance With Laws. Except as disclosed in Section
3.13 of the Company Disclosure Schedule, and except for any matter that would
not reasonably be expected to have a Company Material Adverse Effect, the
Company is not in violation of any applicable provisions of any laws, statutes,
ordinances or regulations.
SECTION 3.14. Finders' Fees. No investment banker, broker, finder or
other intermediary has been retained by or is authorized to act on behalf of the
Company who would be entitled to any fee or commission upon consummation of the
transactions contemplated by this Agreement.
SECTION 3.15. Material Contracts. The Company is not in default of,
nor is in anticipatory breach of, any of its material contracts with third
parties, nor does the Company have any reason to believe that it will be so in
the future.
SECTION 3.16 Title to Assets. Except as set forth in Section 3.16 of
the Company Disclosure Schedule and except where the failure to have a good,
valid and indefeasible title would not reasonably be expected to have a Company
Material Adverse Effect, the Company has good, valid and indefeasible title to
all of the assets purported to be owned by it, whether real, personal or mixed.
All property owned by the Company is free and clear of restrictions on or
conditions to transfer or assignment, and free and clear of mortgages, liens,
pledges, charges, encumbrances, equities, claims, easements, rights of way,
covenants, conditions or restrictions, except for those disclosed in the Company
Financial Statements, except for matters disclosed on any policies of title
insurance issued to the Company with respect to any facilities and made
available to Aperian and except for those not reasonably expected to have a
Company Material Adverse Effect.
SECTION 3.17. Investment Intent. Each Fourthstage Shareholder is
acquiring the Aperian Common Stock and the Aperian Preferred Stock pursuant
hereto for his own account and not with a view to, or for offer or resale in
connection with, any distribution thereof (within the meaning of Section 2(11)
of the Securities Act), nor with any present intention of distributing or
selling the same; and, other than pursuant to the provisions of the Registration
Rights Agreement, no Fourthstage Shareholder has any present or contemplated
agreement, undertaking, arrangement, obligation, indebtedness, or commitment
providing for the disposition thereof.
SECTION 3.18. Sophisticated Investor Status. Each Fourthstage
Shareholder is an Accredited Investor, as such term is defined in Rule 501
promulgated under the Securities Act. Each Fourthstage Shareholder acknowledges
and agrees that the acquisition of Aperian Common Stock and the Aperian
Preferred Stock pursuant to this Agreement carries a certain degree of risk and
that he has taken full cognizance of and understands all of the risks related to
an acquisition of Aperian Common Stock and the Aperian Preferred Stock.
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SECTION 3.19. Legend. Each Fourthstage Shareholder understands,
acknowledges, and agrees that a legend will be placed on any certificates
evidencing the Aperian Common Stock and the Aperian Preferred Stock delivered
hereunder in substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN
ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR THE STATE
SECURITIES LAWS OF ANY STATE. WITHOUT SUCH REGISTRATION,
SUCH SECURITIES MAY NOT BE SOLD, PLEDGED, HYPOTHECATED, OR
OTHERWISE TRANSFERRED AT ANY TIME WHATSOEVER, EXCEPT UPON
DELIVERY TO APERIAN, INC., A DELAWARE CORPORATION (THE
"COMPANY"), OF AN OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY THAT REGISTRATION IS NOT REQUIRED FOR SUCH
TRANSFER AND/OR THE SUBMISSION TO THE COMPANY OF SUCH
OTHER EVIDENCE AS MAY BE SATISFACTORY TO THE COMPANY THAT
ANY SUCH TRANSFER WILL NOT BE IN VIOLATION OF THE
SECURITIES ACT OF 1933, AS AMENDED, AND/OR APPLICABLE
STATE SECURITIES LAWS, AND/OR ANY RULE OR REGULATION
PROMULGATED THEREUNDER.
SECTION 3.20. No Other Representations. Neither the Company nor any
Person affiliated therewith shall be deemed to have made to Aperian or any other
Person any representation or warranty other than as expressly made by the
Company in this Article 3. Neither the Company nor any Person affiliated
therewith makes any representation or warranty regarding any projections,
estimates, budgets or forward-looking information heretofore delivered to or
made available to Aperian or any other Person regarding future revenues,
expenses or expenditures, future results of operation or, except as expressly
covered by a representation and warranty contained in Article 3 hereof, any
other information or documents made available to Aperian or any other Person
with respect to the Company.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
OF APERIAN AND MERGER SUB
Aperian and Merger Sub jointly and severally represent and warrant to
the Company that, except as otherwise disclosed on a disclosure schedule
delivered on or prior to the date hereof to the Company by Aperian (the "Aperian
Disclosure Schedule") or any Aperian SEC Reports (as defined herein):
SECTION 4.1. Corporate Existence and Power. Aperian is a corporation
duly incorporated, validly existing and in good standing under the laws of the
State of Delaware and Merger Sub is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware and each
of Aperian and Merger Sub has all corporate powers and all governmental
licenses, authorizations, consents and approvals required to carry on its
business as now conducted other than any such licenses, authorizations, permits,
registrations, consents and approvals the failure of which to have would not
reasonably be expected to have a
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Aperian Material Adverse Effect (as defined below). Each of Aperian and Merger
Sub is duly qualified to do business as a foreign corporation and is in good
standing in each jurisdiction where the character of the property owned or
leased by it or the nature of its activities makes such qualification necessary,
except for those jurisdictions where the failure to be so qualified would not
reasonably be expected to have a Aperian Material Adverse Effect. Aperian has
heretofore delivered to the Company true and complete copies of the Certificate
of Incorporation and Bylaws as currently in effect for each of Aperian and
Merger Sub. For purposes of this Agreement, an "Aperian Material Adverse Effect"
means a material adverse effect on the assets, liabilities, business or
operations of Aperian and/or any of the Aperian Subsidiaries (as defined below)
taken as a whole, or on the ability of Aperian to perform its obligations
hereunder. The Aperian Disclosure Schedule contains a true and complete list of
all of Aperian's subsidiaries (the "Aperian Subsidiaries"). Notwithstanding
anything to the contrary herein, an Aperian Material Adverse Effect shall not
include events, changes or effects relating to or caused by (i) general economic
or industry conditions or (ii) the announcement or pendency of this Agreement or
any of the transactions or actions contemplated hereby.
SECTION 4.2. Subsidiaries. Except as set forth in Section 4.2 of the
Aperian Disclosure Schedule, Aperian does not have and has never had any
subsidiaries or affiliated companies and does not otherwise own and has never
otherwise owned any shares of capital stock or any interest in, or control,
directly or indirectly, any other corporation, partnership, association, joint
venture or other business entity.
SECTION 4.3. Corporate Records. The corporate minute books, transfer
books and stock ledgers of Aperian are complete and accurate in all material
respects.
SECTION 4.4. Corporate Authorization.
(a) The execution, delivery and performance by Aperian and
Merger Sub of this Agreement and the consummation by Aperian and Merger Sub of
the transactions contemplated hereby are within Aperian's and Merger Sub's
corporate powers, subject to the conditions set forth in this Agreement. This
Agreement, the Merger, and the transactions contemplated hereby have been duly
authorized by all necessary corporate action, except for approval by Aperian's
shareholders of the issuance of Aperian Common Stock upon the conversion of
Aperian Preferred Stock, which will be solicited as provided herein. Assuming
due authorization, execution and delivery of this Agreement by the Company, this
Agreement constitutes a valid and binding agreement of Aperian and Merger Sub,
enforceable against Aperian in accordance with its terms, except as limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws relating to
or affecting generally the enforcement of creditors rights and by the
availability of equitable remedies.
(b) Aperian's Board of Directors, at a meeting duly called
and held, has, by majority vote of the members of Aperian's Board of Directors
present at such meeting, duly and validly approved, and taken all corporate
actions required to be taken by Aperian's Board of Directors for the
consummation of, the Merger and the other transactions contemplated hereby.
Without limiting the generality of the foregoing, Aperian's Board of Directors
has (i) determined that the Merger is fair and in the best interests of Aperian
and its shareholders, (ii) received the opinion of Tejas Securities Group, Inc.,
to the effect that the consideration to be paid by Aperian in the Merger is fair
to Aperian from a financial point of view, (iii) adopted this Agreement in
accordance with Delaware law, and (iv) directed that this Agreement and the
Merger be
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submitted to the shareholders of Aperian for their adoption and approval and
resolved to recommend that the shareholders of Aperian approve and adopt this
Agreement and the Merger.
SECTION 4.5. Governmental Authorization. The execution, delivery and
performance by Aperian and Merger Sub of this Agreement and the consummation of
the Merger by Aperian and Merger Sub require no action by or in respect of, or
filing with, any court or tribunal or administrative governmental or regulatory
body, agency, official or authority other than (a) the filing of a certificate
of merger in accordance with the ABCL and DGCL; (b) compliance with any
applicable requirements of the Exchange Act and the rules and regulations
promulgated thereunder; (c) compliance with any applicable requirements of the
Securities Act; (d) compliance with any applicable foreign or state securities
or blue sky laws; (e) compliance with state takeover, antitrust and competition
law filings and approvals; and (f) such actions by or filings with governmental
bodies, agencies, officials or authorities, the failure of which to obtain or
make would not reasonably be expected to have, individually or in the aggregate,
an Aperian Material Adverse Effect.
SECTION 4.6. Non-Contravention. The execution, delivery and
performance by Aperian and/or Merger Sub of this Agreement and the consummation
by Aperian and Merger Sub of the transactions contemplated hereby do not and
will not, (a) contravene or conflict with the Articles or Certificate of
Incorporation or Bylaws (or similar governing documents) of Aperian and Merger
Sub, or (b) except for any such matters that do not have, and would not
reasonably be expected to have, an Aperian Material Adverse Effect or except as
set forth on Section 4.6 of Aperian Disclosure Schedule, (i) assuming compliance
with the matters referred to in Section 4.5, contravene or conflict with or
constitute a violation of any provision of any law, rule, including, but not
limited to, the Rules of the Association as set forth in the National
Association of Securities Dealers Manual, regulation, judgment, injunction,
order or decree binding upon or applicable to Aperian and Merger Sub or any of
their respective assets, (ii) result in a violation or breach of, or constitute
a default under, or give rise to a right of termination, amendment, cancellation
or acceleration of any right or obligation of Aperian and Merger Sub or to a
loss of any benefit to which Aperian or Merger Sub is entitled under any
provision of any note, bond, mortgage, indenture, lease, agreement, contract or
other instrument binding upon Aperian and Merger Sub or to which Aperian and
Merger Sub is a party or by which it is affected or any license, franchise,
permit or other similar authorization held by Aperian and Merger Sub or to which
Aperian and Merger Sub is a party or by which it is affected, or (iii) result in
the creation or imposition of any Lien (as defined below) on any asset of
Aperian and Merger Sub. For purposes of this Agreement, "Lien" means, with
respect to an asset, any mortgage, lien, pledge, charge, security interest or
encumbrance of any kind in respect of such asset. Notwithstanding anything
written in this Section 4.6, the representation regarding the compliance of this
Agreement and the transactions contemplated pursuant thereto, with the Rules of
Association of the National Association of Securities Dealers Manual does not,
and shall not, constitute a representation of a factual matter but rather
included herein for purposes of risk allocation and shall only implicate
Aperian's indemnity obligation associated therewith
SECTION 4.7. Aperian SEC Reports and Financial Statements. Aperian
has delivered to the Company true and complete copies of each registration
statement, report and proxy or information statement, including, without
limitation, its Annual Reports to Shareholders incorporated in material part by
reference in certain of such reports, in the form (including exhibits and any
amendments thereto) required to be filed with the Securities and Exchange
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Commission (the "SEC") since January 1, 1999 (collectively, the "Aperian SEC
Reports"). Except as set forth in the Aperian Disclosure Schedule, as of the
respective dates such Aperian SEC Reports were filed or, if any such Aperian SEC
Reports were amended, as of the date such amendment was filed, each of the
Aperian SEC Reports (i) complied in all material respects with all applicable
requirements of the Securities Act and the Exchange Act, and the rules and
regulations promulgated thereunder, and (ii) did not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading. Each of the
audited consolidated financial statements and unaudited consolidated interim
financial statements of Aperian (including any related notes and schedules)
included (or incorporated by reference) in its Annual Reports on Form 10-KSB for
each of the three fiscal years ended 1998, 1999 and 2000, when filed, and
Quarterly Reports on Form 10-QSB for all interim periods subsequent thereto (the
"Aperian Financial Statements") fairly present, in conformity with GAAP applied
on a consistent basis (except as may be indicated in the notes thereto), the
consolidated financial position of Aperian and the Aperian Subsidiaries as of
its date and the consolidated results of operations and cash flows for the
period then ended (subject to normal year-end adjustments in the case of any
unaudited interim financial statements). There has been no change in Aperian's
accounting policies or methods of making accounting estimates or changes in
estimates that are material to the Aperian Financial Statements, except as
described in the notes thereto.
SECTION 4.8. Capitalization.
(a) The authorized capital stock of Aperian consists of
75,000,000 shares of Aperian Common Stock. There are issued and outstanding
13,559,954 shares of Aperian Common Stock and Aperian Options (all documents
with respect to which have been made available to Company and Fourthstage
Shareholders for inspection) to purchase 4,062,770 shares of Aperian Common
Stock. The authorized capital stock of Merger Sub consists of 1,000 shares of
Merger Sub Common Stock. There are outstanding 1,000 shares of Merger Sub Common
Stock. Aperian owns all 1,000 Shares of Merger Sub Common Stock.
(b) Except as set forth in Section 4.8 of Aperian
Disclosure Schedule, all outstanding shares of capital stock of Aperian and
Merger Sub have been duly authorized and validly issued and are fully paid and
nonassessable and were issued free of preemptive or similar rights and in
compliance with all applicable state and federal securities laws and
regulations. Except as set forth in this Section 4.8, there are outstanding (i)
no other shares of capital stock or other voting securities of Aperian and
Merger Sub, (ii) no securities of Aperian and Merger Sub convertible into or
exchangeable for shares of capital stock or voting securities of Aperian and
Merger Sub, and (iii) no other options, warrants, calls, rights (including
preemptive rights), commitments or any other agreement of any character to
acquire from Aperian and Merger Sub, and no obligation of Aperian to issue,
transfer, dispose of, sell, purchase, redeem or otherwise acquire (or to refrain
from doing any of the foregoing), any capital stock, voting securities or
securities convertible into or exchangeable for capital stock or voting
securities of Aperian (the items in clauses (i), (ii) and (iii) being referred
to collectively as the "Aperian Securities").
(c) Except as set for in Section 4.8(c) of Aperian
Disclosure Schedule, all of Aperian Options were issued pursuant to Aperian's
2000 Stock Option Plan and 2000 Stock Incentive Plan. Section 4.8(c) of Aperian
Disclosure Schedule sets forth a true, correct and complete list, as of the date
of this Agreement, of the name of each holder of outstanding
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Company Options, the exercise price therefor and the number of shares of Company
Common Stock exercisable therefor, and indicating the portion of such Company
Options that are vested.
(d) Except as set forth on Section 4.8(d) of Aperian
Disclosure Schedule and except for Aperian Options, there are no shareholders
agreements, investors' rights agreements, voting trusts or other agreements or
understandings to which Aperian is a party or by which Aperian is bound relating
to the voting of, or placing any restrictions on, any shares of the capital
stock of Aperian.
(e) The issuance of the 2,698,412 Shares of Aperian Common
Stock and 8,396,016 Shares of Aperian Preferred Stock has been duly authorized
by the Board of Directors of Aperian, and all of such shares upon issuance will
be validly issued and will be fully paid and non-assessable, and will be issued
in compliance with all applicable state and federal securities laws and
regulations. Aperian has, and will at all applicable times reserve, a number of
Shares of Common Stock sufficient for the conversion of the Preferred Stock in
accordance with its terms.
SECTION 4.9. Aperian Financial Statements. Aperian's unaudited
balance sheet as of February 28, 2001 (the "Aperian Balance Sheet Date"),
audited balance sheet as of March 31, 2000, and the related audited statements
of operations, stockholders' deficit and cash flows for the periods from April
1, 1999 to March 31, 2000, and unaudited statements of operations for the eleven
months ended February 28, 2001 (collectively, the "Aperian Financials"), are
correct in all material respects and have been prepared in accordance with GAAP
applied on a basis consistent throughout the periods indicated and consistent
with each other. The Aperian Financials fairly present the financial condition
and operating results of Aperian as of the dates and during the periods
indicated therein.
SECTION 4.10. Absence of Certain Changes. Except as described in
Section 4.10 of Aperian Disclosure Schedule, since the Aperian Balance Sheet
Date, Aperian and Aperian Subsidiaries have conducted their respective
businesses in the ordinary and usual course and there has not been:
(a) any declaration, setting aside or payment of any
dividend or other distribution with respect to any shares of capital stock of
Aperian, or any repurchase, redemption or other acquisition by Aperian of any
outstanding shares of capital stock or other ownership interests in, Aperian;
(b) any incurrence, assumption or guarantee by Aperian or
any of Aperian Subsidiaries of any outstanding amount of indebtedness for
borrowed money or any other liabilities of any nature, whether or not accrued,
contingent or otherwise, other than in the ordinary course of business;
(c) any transaction or commitment made, or any contract or
agreement entered into, by Aperian relating to their respective assets or
businesses (including the acquisition or disposition of any assets) or any loss
or relinquishment by Aperian of any material contract or other material right,
other than transactions and commitments in the ordinary course of business in
accordance with their customary practices;
(d) any material change in any method of accounting or
accounting practice or policy or application thereof by Aperian, except as
required by GAAP;
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(e) any increase in (or commitment, oral or written, to
increase) the rate or terms (including, without limitation, any acceleration of
the right to receive payment) of compensation payable or to become payable by
Aperian to their directors, officers, employees or consultants, except increases
occurring in the ordinary course of business; or
(f) any increase in (or commitment, oral or written, to
increase) the rate or terms (including, without limitation, any acceleration of
the right to receive payment) of any bonus, insurance, pension or other employee
benefit plan or contract, payment or arrangement made to, for or with any
director, officer, employee or consultant of Aperian, except increases occurring
in the ordinary course of business.
SECTION 4.11. Litigation. Except as set forth in Section 4.11 of
Aperian Disclosure Schedule, there is no material action, suit or proceeding of
any nature pending or, to the best of Aperian's knowledge, threatened against
Aperian, its properties or any of its officers or directors, in their respective
capacities as such.
SECTION 4.12. Employee Benefit Plans. Except as described in Section
4.12 of Aperian Disclosure Schedule, Aperian does not have any employee pension
benefit plans, as defined in Section 3(2) of ERISA, plans that would be covered
by the Federal ERISA laws.
SECTION 4.13. Taxes. All federal, state and other returns and reports
required to be filed by Aperian have been duly and timely filed by Aperian and,
except as set forth in Section 4.13 of Aperian Disclosure Schedule, all material
taxes and other assessments and levies (including all interest and penalties)
including, without limitation, income, franchise, real estate, sales, gross
receipts, use and services taxes, and employment and employee withholding taxes,
owed by Aperian have been paid in full by Aperian unless being contested in good
faith. Except as set forth in Section 4.13 of Aperian Disclosure Schedule, all
such taxes and other assessments and levies which Aperian is required by law to
have withheld, collected or deposited have been duly withheld and collected and
deposited with the proper governmental authorities or segregated and set aside
for such payment, and if so segregated and set aside, shall be so paid by
Aperian as required by law.
SECTION 4.14. Compliance With Laws. Except as disclosed in Section
4.14 of Aperian Disclosure Schedule, and except for any matter that would not
reasonably be expected to have a Company Material Adverse Effect, Aperian is not
in violation of any applicable provisions of any laws, statutes, ordinances or
regulations.
SECTION 4.15. Takeover Statutes. No "fair price," "moratorium" or
"control share acquisition" or other similar anti-takeover statute or regulation
(each a "Takeover Statute") or any applicable anti-takeover provision in
Aperian's Certificate of Incorporation or Bylaws is applicable to Aperian, this
Agreement, the Merger or any of the other transactions contemplated by this
Agreement.
SECTION 4.16. Finders' Fees. Except as described in Section 4.16 of
Aperian Disclosure Schedule, no investment banker, broker, finder or other
intermediary has been retained by or is authorized to act on behalf of Aperian
who would be entitled to any fee or commission upon consummation of the
transactions contemplated by this Agreement.
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SECTION 4.17. Material Contracts. Aperian is not in default of, nor
is in anticipatory breach of, any of its material contracts with third parties,
nor does Aperian have any reason to believe that it will be so in the future.
SECTION 4.18. Title to Assets. Except as set forth in Section 4.18 of
Aperian Disclosure Schedule and except where the failure to have a good, valid
and indefeasible title would not reasonably be expected to have a Company
Material Adverse Effect, Aperian has good, valid and indefeasible title to all
of the assets purported to be owned by it, whether real, personal or mixed. All
property owned by Aperian is free and clear of restrictions on or conditions to
transfer or assignment, and free and clear of mortgages, liens, pledges,
charges, encumbrances, equities, claims, easements, rights of way, covenants,
conditions or restrictions, except for those disclosed in Aperian Financial
Statements, except for matters disclosed on any policies of title insurance
issued to Aperian with respect to any facilities and made available to Aperian
and except for those not reasonably expected to have an Aperian Material Adverse
Effect.
SECTION 4.19. No Other Representations. Neither Aperian nor any
Person affiliated therewith shall be deemed to have made to Aperian or any other
Person any representation or warranty other than as expressly made by Aperian in
this Article 4. Neither Aperian nor any Person affiliated therewith makes any
representation or warranty regarding any projections, estimates, budgets or
forward-looking information heretofore delivered to or made available to Aperian
or any other Person regarding future revenues, expenses or expenditures, future
results of operation or, except as expressly covered by a representation and
warranty contained in Article 3 hereof, any other information or documents made
available to Aperian or any other Person with respect to Aperian.
SECTION 4.20. Financing. Aperian has, and until the Effective Time
will continuously have, sufficient funds or binding commitments therefor,
subject to no material conditions other than those contained herein, in amounts
sufficient to fund all amounts payable hereunder.
ARTICLE 5
INDEMNIFICATION
SECTION 5.1. Survival of Representations and Warranties. The
representations and warranties of Company, Fourthstage Shareholders, Aperian and
Merger Sub in this Agreement or in any instrument delivered pursuant to this
Agreement shall terminate on the six (6) month anniversary of the Closing (the
"Expiration Date").
SECTION 5.2. Company Indemnity; Set-off Arrangements.
(a) Set-off Amount. The Set-off Amount, as defined in
Section 1.2(c), shall be available to compensate Aperian for any claims, losses,
liabilities, damages, deficiencies, costs and expenses, including reasonable
attorneys' fees and expenses, and expenses of investigation and defense
(hereinafter individually a "Loss" and collectively "Losses") incurred by
Aperian directly or indirectly as a result of any inaccuracy or breach of a
representation or warranty of Company or Fourthstage Shareholders contained in
Article 3 (as modified by the Company Disclosure Schedule) or any breach of any
covenant or agreement of Company or
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Fourthstage Shareholders contained in this Agreement. Aperian may not deduct any
funds from the Set-off Amount unless and until Board Certificates (as defined in
paragraph (c) below) identifying Losses, the aggregate amount of which exceed
$75,000, have been delivered to the Shareholder Agent as provided in paragraph
(c); in such case, Aperian may recover from the Set-off Amount the amount of its
Losses that exceed $75,000.
(b) Set-off Period; Distribution Upon Termination of
Set-off Period. Subject to the following requirements, the Set-off Amount shall
be available for the assertion of claimed Losses immediately following the
Effective Time and until 5:00 p.m. Arizona time, on the Expiration Date (the
"Set-off Period"); provided that the Set-off Period shall not terminate with
respect to such amount (or some portion thereof), that together with the
aggregate amount remaining in the Set-off Amount is necessary in the reasonable
judgment of a majority of the Aperian Directors, subject to the objection of the
Shareholder Agent and the subsequent arbitration of the matter in the manner
provided in Section 5.2(d) hereof, to satisfy any pending unsatisfied claims
concerning facts and circumstances existing prior to the termination of such
Set-off Period specified in any Board Certificate delivered to the Shareholder
Agent prior to termination of such Set-off Period. As soon as the Set-off Period
has terminated and all such claims have been resolved, Aperian shall deliver to
the Fourthstage Shareholders the remaining portion of the Set-off Amount not
required to satisfy such pending unsatisfied claims. Deliveries of Set-off
Amounts to the Fourthstage Shareholders pursuant to this Section 5.2(b) shall be
made in proportion to their respective original allocations of the Cash
Contribution as set forth in Article 2.
(c) Claims Upon Set-off Amount/Objections to Claims.
Aperian may make a claim against the Set-off Amount by providing a Board
Certificate to the Shareholder Agent. Upon receipt by the Shareholder Agent at
any time on or prior to the expiration of the Set-off Period of a certificate
signed by a majority of the Aperian Directors not including those directors
nominated by the Aperian Preferred Shareholders pursuant to Section 6.6 (a
"Board Certificate"): (i) stating that Aperian has paid or properly accrued or
reasonably anticipates that it will have to pay or accrue Losses, and (ii)
specifying in reasonable detail the individual items of Losses included in the
amount so stated, the date each such item was paid or properly accrued, or the
basis for such anticipated liability, and the nature of the misrepresentation or
breach of warranty to which such item is related, the Shareholder Agent shall
have the right to dispute such claim by providing written objection to such
claim within thirty (30) days of receipt of such Board Certificate. Board
Certificates not disputed within such time shall be deemed accepted by the
Shareholder Agent and shall reduce the Set-off Amount accordingly.
(d) Resolution of Conflicts; Arbitration.
(i) If the Shareholder Agent shall object in
writing to any claim or claims made in any Board Certificate a Fourthstage
Shareholder has, the Shareholder Agent and Aperian shall attempt in good faith
to agree upon the rights of the respective parties with respect to each of such
claims. If the Shareholder Agent and Aperian should so agree, a memorandum
setting forth such agreement shall be prepared and signed by both parties.
(ii) If no such agreement can be reached after
good faith negotiation, either Aperian or the Shareholder Agent may demand
arbitration of the matter unless the amount of the damage or loss is at issue in
pending litigation with a third party, in which event arbitration shall not be
commenced until such amount is ascertained or both parties agree to arbitration;
and
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in either such event the matter shall be settled by arbitration conducted by one
arbitrator. The American Arbitration Association (the "AAA") shall choose the
arbitrator. Each party to the arbitration shall have the right to a single
objection to an arbitrator proposed by the AAA. The arbitrator shall set a
limited time period and establish procedures designed to reduce the cost and
time for discovery while allowing the parties an opportunity, adequate in the
sole judgment of the arbitrator, to discover relevant information from the
opposing parties about the subject matter of the dispute, provided that not more
than two depositions may be noticed by any party to the arbitration. The
arbitrator shall rule upon motions to compel or limit discovery and shall have
the authority to impose sanctions, including attorneys fees and costs, to the
extent as a court of competent law or equity, should the arbitrator determine
that discovery was sought without substantial justification or that discovery
was refused or objected to without substantial justification or that discovery
was refused or objected to without substantial justification. The arbitration
hearing shall be held in a single hearing (which may continue for consecutive
days). The decision of the arbitrator as to the validity and amount of any claim
in such Board Certificate shall be binding and conclusive upon the parties to
this Agreement, and notwithstanding anything in Section 5.2 hereof, Aperian
shall be entitled to act in accordance with such decision and make or withhold
payments out of the Set-off Amount in accordance therewith. Such decision shall
be written and shall be supported by written findings of fact and conclusions
which shall set forth the award, judgment, decree or order awarded by the
arbitrator.
(iii) Judgment upon any award rendered by the
arbitrator may be entered in any court having jurisdiction. Any such arbitration
shall be held in Phoenix, Arizona under the rules then in effect of the AAA
(including the rules for discovery thereunder). For purposes of this Section
5.2(d), in any arbitration hereunder in which any claim or the amount thereof
stated in the Board Certificate is at issue, Aperian shall be deemed to be the
Non-Prevailing Party in the event that the arbitrator awards Aperian less than
the sum of one-half (1/2) of the disputed amount plus any amounts not in
dispute; otherwise, the Fourthstage Shareholders as represented by the
Shareholder Agent shall be deemed to be the Non-Prevailing Party. The
Non-Prevailing Party to an arbitration shall pay its own expenses, the fees of
each arbitrator, the administrative costs of the arbitration, and the expenses,
including without limitation, reasonable attorneys' fees and costs, incurred by
the other party to the arbitration.
(e) Shareholder Agent of the Shareholders; Power of
Attorney.
(i) In the event that the Merger is approved,
effective upon such vote, and without further act of any Fourthstage
Shareholder, Xxxxx Xxxxx shall be appointed as agent and attorney-in-fact (the
"Shareholder Agent") for each Fourthstage Shareholder for and on behalf of the
Fourthstage Shareholders, to give and receive notices and communications, to
agree to, negotiate, enter into settlements and compromises of, and demand
arbitration and comply with orders of courts and awards of arbitrators with
respect to such claims, and to take all actions necessary or appropriate in the
judgment of Shareholder Agent for the accomplishment of the foregoing.
(ii) The Shareholder Agent shall not be liable
for any act done or omitted hereunder as Shareholder Agent while acting in good
faith and in the exercise of reasonable judgment. The Fourthstage Shareholders
on whose behalf the Set-off Amount is held shall severally indemnify the
Shareholder Agent and hold the Shareholder Agent harmless against any loss,
liability or expense incurred without negligence or bad faith on the part of the
Shareholder Agent and arising out of or in connection with the acceptance or
administration of
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the Shareholder Agent's duties hereunder, including the reasonable fees and
expenses of any legal counsel retained by the Shareholder Agent.
SECTION 5.3. Maximum Payments. The liability of each Fourthstage
Shareholder under the representations, warranties, covenants and agreements of
Company contained in this Agreement, including without limitation pursuant to
this Article 5 or otherwise for any claims under law or at equity, regardless of
the legal theory upon which such claims are premised, shall be limited to such
Fourthstage Shareholder's pro rata portion of the Set-off Amount.
SECTION 5.4. Indemnification by Aperian. Aperian and Merger Sub
jointly and severally indemnify the Fourthstage Shareholders against, and agree
to hold the Fourthstage Shareholders harmless from, all losses, liabilities and
expenses (including but not limited to, reasonable fees and expenses of counsel
and expenses of investigation) incurred directly or indirectly as a result of
any inaccuracy or breach of any representation or warranty contained in Article
4 (as modified by the Aperian Disclosure Schedule) or any breach or failure to
fulfill in any respect any of Aperian's covenants, agreements or obligations
under this Agreement or under any document delivered in accordance with this
Agreement which is required to be fulfilled after the Closing. The liability of
Aperian under the representations, warranties, covenants and agreement of
Aperian contained in this Agreement, including without limitation pursuant to
this Article 5 or otherwise for any claims under law or at equity, regardless of
the legal theory upon which such claims are premised, shall be limited to $15
million. However, the Company and Fourthstage Shareholders shall not be entitled
to recover for breaches of representations, warranties, covenants and agreements
of Aperian contained in this Agreement, until the liability of Aperian by such
breaches exceeds $75,000 and in such case the Company and Fourthstage
Shareholders may recover only the amount that exceeds $75,000.
SECTION 5.5. Special Tax Indemnification. Aperian hereby agrees to
fully indemnify the Fourthstage Shareholders for any tax liabilities or other
expenses incurred as a result of the Merger failing to qualify as a tax-free
reorganization pursuant to Section 368 of the Internal Revenue Code of 1986, as
amended (the "Code"), if but for the failure of Aperian's Shareholders to
approve conversion of the Aperian Preferred Stock in accordance with Section
6.1, the Merger would have qualified as a tax-free reorganization pursuant to
the Code. Such indemnification obligation shall include the payment of an amount
sufficient to pay any and all taxes due with respect to indemnification payments
made under this Section 5.5 ("Gross Up Payment") and any taxes due with respect
to the Gross Up Payment. For those Fourthstage Shareholders entitled to receive
special tax indemnification pursuant to this Section 5.5, the grossed-up
indemnification payments shall be calculated at an assumed tax rate of
twenty-five percent (25%) for those Fourthstage Shareholders who recognize
long-term capital gains and thirty-five percent (35%) for those Fourthstage
Shareholders who recognize short-term capital gains. Notwithstanding anything
contained in this Section 5.5, Aperian makes no representation or warranty that
the Merger shall qualify as a tax-free reorganization pursuant to the Code even
if Aperian Shareholders approve conversion of the Aperian Preferred Stock in
accordance with Section 6.1.
SECTION 5.6. Indemnification Procedures. Claims for indemnification
under Section 5.4 or 5.5 may be asserted by the Shareholder Agent by written
notice to Aperian. Upon assertion of any such claim, the Shareholder Agent
asserting the claims and Aperian shall attempt in good faith shall agree upon
the rights of the respective parties with respect to each of such claims. If the
Shareholder Agent and Aperian should so agree, a memorandum setting forth
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their agreement shall be prepared and signed by both parties. If no such
agreement can be reached after good faith negotiation, either Aperian or the
Shareholder Agent asserting the claim may demand arbitration in accordance with
the procedures set forth in Section 5.2(d)(ii) and (iii).
SECTION 5.7. Resolution of Conflicts; Arbitration. Except for actions
seeking a preliminary restraining order, temporary injunction or other remedy to
maintain the status quo pending resolution of a dispute, all disputes and claims
between any of the parties to this Agreement shall be resolved in accordance
with the arbitration provisions set forth in Article 5 of this Agreement. In any
such arbitration proceeding, the arbitrator shall be entitled to award
compensatory or punitive damages, to the fullest extent permitted by law.
ARTICLE 6
ADDITIONAL AGREEMENTS
SECTION 6.1. Stockholders' and Shareholders' Approval. Aperian shall
use its best efforts to obtain approval by its Shareholders of the conversion of
Aperian Preferred Stock into Aperian Common Stock and to obtain approval of any
required amendments to Aperian Stock Option Plans needed to facilitate the
conversion of Company Options pursuant to Section 1.3 herein, at a duly called
meeting of Aperian Shareholders on or before September 30, 2001. Aperian's Board
of Directors will recommend approval of the conversion in a proxy statement
prepared and circulated in accordance with applicable proxy regulations and will
actively solicit proxies in favor of conversion from Aperian Shareholders.
SECTION 6.2. Reasonable Efforts/Consents. Subject to the terms and
conditions provided in this Agreement, each of the parties hereto shall use its
reasonable efforts to take promptly, or cause to be taken, all actions, and to
do promptly, or cause to be done, all things necessary, proper or advisable
under applicable laws and regulations to consummate and make effective the
transactions contemplated hereby to obtain all necessary waivers, consents and
approvals and to effect all necessary registrations and filings and to remove
any injunctions or other impediments or delays, legal or otherwise, in order to
consummate and make effective the transactions contemplated by this Agreement
for the purpose of securing to the parties hereto the benefits contemplated by
this Agreement.
SECTION 6.3. Additional Nasdaq Listing. Aperian shall take all
necessary steps, including the filing of an additional listing application prior
to the effectiveness of the Registration Statement contemplated in the
Registration Rights Agreement, to qualify for trading and listing on Nasdaq all
Aperian Common Stock issued to Fourthstage Shareholders at the time of the
Merger and to be issued on conversion of the Aperian Preferred Stock.
SECTION 6.4. Closing Conditions. Each party shall undertake its best
efforts to satisfy the conditions to Closing stated in Article 7.
SECTION 6.5. Xxxxx Non-Compete. Xxxxx Xxxxx agrees that for a period
of one (1) year, he shall be restricted from accepting employment with, or
acting as a consultant, contractor, advisor or in any other capacity for, a
competitor of Aperian anywhere within the United States of America. Should a
court or other adjudicative body of competent jurisdiction deem that this
restrictive covenant exceeds the scope needed to protect Aperian's legitimate
financial and
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commercial interests, the parties hereto authorize and request such court or
adjudicative body to amend and modify the scope of this Section 6.5 as needed.
SECTION 6.6. Board Representation. So long as any Aperian Preferred
Shares remain outstanding, but not later than July 15, 2002: (a) Xxxxx Xxxxx, or
the successors in interest to his Common Stock, on behalf of the former
Shareholders of Fourthstage Technologies, Inc., shall have the right to nominate
three (3) individuals to serve on the Board, (b) the Board shall consist of not
more than seven (7) persons, and (c) the Board shall undertake all actions
necessary and appropriate to effect the purposes of this Section 6.6.
ARTICLE 7
CONDITIONS TO THE MERGER
SECTION 7.1. Conditions to the Obligations of Each Party. The
obligations of the Company, Aperian and Merger Sub to consummate the Merger are
subject to the satisfaction or waiver at or prior to the Closing of the
following conditions:
(a) the transactions contemplated by this Agreement shall
have been approved by any federal, state, foreign or local governmental or
regulatory authority or self-regulatory body the approval of which is required
to permit the consummation thereof;
(b) no court, arbitrator or governmental body, agency or
official shall have issued any order or injunction and there shall not be any
statute, rule or regulation, restraining or prohibiting the consummation of the
Merger; provided that prior to invoking this condition, each party shall use all
commercially reasonable efforts to have any such order, injunction, legal
restraint or prohibition vacated;
(c) all actions by or in respect of or filings with any
governmental body, agency, official, or authority required to permit the
consummation of the Merger, shall have been obtained;
(d) Execution of employment agreements, substantially in
the form of Exhibit 7.1(d)(1) hereto, in form reasonably acceptable to the
Company and Aperian, as the case may be, shall have been duly executed and
delivered by each of the individuals listed on Exhibit 7.1(d)(2) hereto, and
shall be in full force and effect; and
(e) Aperian and each of the Fourthstage Shareholders shall
have executed and delivered the Registration Rights Agreement in the form
attached hereto as Exhibit 7.1(e).
SECTION 7.2. Conditions to Obligations of Aperian. The obligation of
Aperian to consummate the transactions contemplated by this Agreement shall be
subject to the satisfaction or waiver at or prior to the Closing of the
following additional conditions:
(a) The representations and warranties of the Company set
forth in Article 3 shall also be true and correct as of the Closing (except to
the extent that any change therein is as a result of the transactions
contemplated hereby) with the same effect as though made on the date of the
Closing;
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(b) The Company shall have performed in all material
respects all obligations required to be performed by it under this Agreement at
or prior to the Effective Time;
(c) The Company shall have given all notices to, and
obtained all consents, approvals or authorizations of or from, any Person which
may be necessary to permit the consummation of the transactions contemplated
hereby (including, without limitation, any consents required under contracts and
agreements to which the Company is a party or by which the Company or any of its
assets may be bound, or which may be required to permit the change of ownership
of the Company); provided, however, that the condition specified in this Section
7.2(c) shall not include any required novations under any government contract or
any notice, consent, approval or authorization which if not obtained by the
Company, would not have a Company Material Adverse Effect;
(d) Aperian shall have received the opinions of the
Company's counsel, dated the Effective Time, substantially in the form of
Exhibit 7.2(d) hereto; and
(e) Aperian shall have received a certificate dated as of
the date of the Closing and signed on behalf of Company by the Chief Executive
Officer and Chief Financial Officer of the Company, to the effect that the
conditions to Aperian's obligations set forth in Sections 7.2(a), (b) and (c)
have been satisfied.
SECTION 7.3. Conditions to Obligations of the Company. The obligation
of the Company to consummate the transactions contemplated by this Agreement
shall be subject to the satisfaction or waiver at or prior to the Closing of the
following additional conditions:
(a) The representations and warranties of Aperian set forth
in Article 4 shall also be true and correct in all material respects as of the
Closing (except to the extent that any change therein is as a result of the
transactions contemplated hereby) with the same effect as though made on the
date of the Closing;
(b) Aperian and Merger Sub shall have performed in all
material respects all obligations required to be performed by them under this
Agreement at or prior to the Effective Time;
(c) The Company shall have received the opinions of the
Aperian's counsel, dated the Effective Time, substantially in the form of
Exhibit 7.3(c) hereto;
(d) Aperian shall have adopted, effective as of the
Effective Time, the Bylaws attached hereto as Exhibit 2.4;
(e) Aperian shall have taken all actions necessary to amend
the Plan to include the Aperian Stock Options to be exchanged for Company Stock
Options; and
(f) The Company shall have received a certificate dated as
of the date of the Closing and signed on behalf of Aperian and Merger Sub by the
respective Chief Executive Officers and Chief Financial Officers of each such
entity, to the effect that the conditions to the Company's obligations set forth
in Sections 7.3(a), (b), (d) and (e) have been satisfied.
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ARTICLE 8
MISCELLANEOUS
SECTION 8.1. Notices. All notices, requests and other communications
to any party hereunder shall be in writing (including telecopy or similar
writing) and shall be given,
if to Aperian or Merger Sub, to: Aperian, Inc.
0000 Xxxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxxxxx
Facsimile: (000) 000-0000
with a copy to: Xxxx Xxxxxxx Xxxxxxx & Xxxxx, P.C.
3700 Thanksgiving Tower
0000 Xxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxx
Facsimile: (000) 000-0000
if to the Company, to: Fourthstage Technologies, Inc.
0000 Xxxxx 0xx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxx
Facsimile: (000) 000-0000
with a copy to: Xxxxx Xxxx LLP
Xxx Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
if to the Shareholder Agent, to: Xxxxx Xxxxx
0000 Xxxx Xxxxxxxxxx
Xxx Xxxxx, Xxxxxx 00000
Facsimile: (000) 000-0000
or such other address or facsimile number as such party may hereafter specify by
notice to the other parties hereto. Each such notice, request or other
communication shall be effective (a) if given by facsimile, when such facsimile
is transmitted to the facsimile number specified in this Section and the
appropriate facsimile confirmation is received or (b) if given by any other
means, when delivered at the address specified in this Section.
SECTION 8.2. Amendments; No Waivers.
(a) Any provision of this Agreement may be amended or
waived prior to the Effective Time if, and only if, such amendment or waiver is
in writing and signed, in the case of an amendment, by the Company, Aperian and
Merger Sub or in the case of a waiver, by the party against whom the waiver is
to be effective.
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(b) No failure or delay by any party in exercising any
right, power or privilege hereunder shall operate as a waiver thereof nor shall
any single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
SECTION 8.3. Expenses. Aperian shall pay all legal and accounting
fees, costs and expenses in connection with the consummation of the Merger.
SECTION 8.4. Entire Agreement/No Third Party Beneficiaries. All prior
negotiations and agreements between the parties hereto relating to the subject
matter hereof are superseded by this Agreement and as of the date hereof there
are no representations, warranties, understandings or agreements, whether
written or oral, expressed or implied, other than those specifically set forth
herein. Except for the shareholders, directors, officers, employees and agents
of the Company to the extent such persons benefit from the provisions set forth
herein, there are no third party beneficiaries to this Agreement.
SECTION 8.5. Waivers. Any failure by any of the parties hereto to
comply with any of the obligations, agreements or conditions set forth herein
may be waived by the other party or parties, provided, however, that any such
waiver shall not be deemed a waiver of any other obligation, agreement or
condition.
SECTION 8.6. Amendments, Supplements or Modifications. Each of the
parties agrees to cooperate fully in the effectuation of the transactions
contemplated hereby and to execute any and all additional documents or take such
additional actions as shall be reasonably necessary or appropriate for such
purpose.
SECTION 8.7. Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, provided that no party may assign, delegate
or otherwise transfer any of its rights or obligations under this Agreement
without the prior written consent of the other parties hereto.
SECTION 8.8. Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws and not the conflicts of laws
provisions of the State of Delaware.
SECTION 8.9. Exclusive Jurisdiction. Subject to the provisions of
Section 5.7 (Resolution of Conflicts; Arbitration), the parties agree that any
legal action, suit or proceeding arising out of or relating to this Agreement or
the agreements and transactions contemplated hereby shall be instituted in a
court located in the city of Phoenix, Arizona, which shall be the exclusive
jurisdiction and venue of any legal proceedings, and each party hereto waives
any objection which such party may now or hereafter have to the laying of venue
of any such action, suit or proceeding.
SECTION 8.10. Disclosure Schedules. Notwithstanding anything herein
to the contrary, any matter disclosed in any Section of either the Company
Disclosure Schedule or the Aperian Disclosure Schedule shall be deemed to be
disclosed in all parts of such Schedules regardless of whether such matter is
specifically cross-referenced. The disclosure of any matter
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in a Schedule is not to be deemed determinative of or an indication that such
matter is material to the operations of the Company or Aperian, as the case may
be.
SECTION 8.11. Counterparts; Effectiveness. This Agreement may be
signed in any number of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement shall become effective when each party hereto shall
have received counterparts hereof signed by all of the other parties hereto.
SECTION 8.12. Severability. If any term or other provision of this
Agreement is invalid, illegal, or incapable of being enforced by any rule or
law, or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated by this Agreement are not
affected in any manner materially adverse to any party. Upon such determination
that any term or other provision is invalid, illegal or incapable of being
enforced, the parties hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in mutually acceptable manner in order that the transactions
contemplated by this Agreement be consummated as originally contemplated to the
fullest extent possible.
SECTION 8.13. Incorporation of Exhibits and Schedules. The Company
Disclosure Schedule, the Aperian Disclosure Schedule and all Exhibits attached
hereto and referred to herein are hereby incorporated herein and made a part
hereof for all purposes as if fully set forth herein.
SECTION 8.14. Headings. The descriptive headings contained in this
Agreement are included for convenience of reference only and shall not affect in
any way the meaning or interpretation of this Agreement.
SECTION 8.15. Knowledge. Whenever used in this Agreement, the terms
"knowledge," "to the knowledge of" "has received no notice" or "is not aware"
(and all variants and derivatives thereof) with respect to any Person, means the
current actual knowledge of such Person. Notwithstanding the foregoing, the
foregoing terms, when applied to the Company, shall mean the actual knowledge of
Xxxxx Xxxxx, and when applied to Aperian, shall mean the actual knowledge of any
and all Persons listed in Section 8.15 of the Aperian Disclosure Schedule.
SECTION 8.16. Construction. The language used in this Agreement will
be deemed to be the language chosen by the parties hereto to express their
mutual intent, and no rule of strict construction shall be applied against
either party. Whenever required by the context, any gender shall include any
other gender, the singular shall include the plural and the plural shall include
the singular. Whenever the word "including" is used in this Agreement, it shall
be deemed to mean "including, without limitation," "including, but not limited
to" or other words of similar import such that the items following the word
"including" shall be deemed to be a list by way of illustration only and shall
not be deemed to be an exhaustive list of applicable items in the context
thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
FOURTHSTAGE TECHNOLOGIES, INC.
By:
------------------------------------------
Name:
Title:
APERIAN, INC.
By:
------------------------------------------
Name:
Title:
APERIAN MERGER CORPORATION, INC.
By:
------------------------------------------
Name:
Title:
SHAREHOLDER AGENT
By:
------------------------------------------
Name: Xxxxx Xxxxx
Signature Page to Agreement and Plan of Merger
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By executing this signature page to the Agreement and Plan of Merger
among Fourthstage Technologies, Inc., Aperian Inc. and Aperian Merger
Corporation, Inc., the below signed Shareholder hereby consents to the merger of
Fourthstage Technologies, Inc. with and into Aperian Acquisitions, Inc. on the
terms and conditions set forth herein and waives any dissenter's appraisal or
similar rights under applicable law.
FOURTHSTAGE SHAREHOLDERS:
---------------------------------------------
Name: Xxxxx Xxxxxxx
---------------------------------------------
Name: Xxxxx X. Xxxxx
---------------------------------------------
Name: Xxx Xxxxxxx
---------------------------------------------
Name: Xxxx Xxxxx
---------------------------------------------
Name: Xxxx Xxxxx
---------------------------------------------
Name: Xxxxx Xxxxx
---------------------------------------------
Name: Xxxxxx Xxxxx
---------------------------------------------
Name: Xxxx Xxxxx
---------------------------------------------
Name: Xxxxx Xxxxx
VAN DE VREDE FAMILY TRUST
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By:
------------------------------------------
Name:
Title:
TRIPLE FIVE INVESTMENTS
By:
------------------------------------------
Name:
Title:
REGENT NET LLC
By:
------------------------------------------
Name:
Title:
*Executed by Xxxxx Xxxxx pursuant to a power of
attorney granted to Xx. Xxxxx for that purpose.
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EXHIBITS
EXHIBIT 1.1(b) FORM OF CERTIFICATES OF MERGER
EXHIBIT 1.2(c) CERTIFICATE OF DESIGNATION
EXHIBIT 1.3 COMPANY OPTION CONVERSION TABLE
EXHIBIT 2.1 AMENDED CERTIFICATE OF INCORPORATION
EXHIBIT 2.4 BYLAWS OF APERIAN
EXHIBIT 7.1(d)(1) FORM OF EMPLOYMENT AGREEMENT
EXHIBIT 7.1(d)(2) NAMES OF PERSONS TO HAVE EMPLOYMENT AGREEMENTS
EXHIBIT 7.1(e) REGISTRATION RIGHTS AGREEMENT
EXHIBIT 7.2(d) FORM OF COMPANY COUNSEL'S OPINION
EXHIBIT 7.3(c) FORM OF APERIAN COUNSEL'S OPINION
29
