EXHIBIT 2.1
CAMBRIDGE TECHNOLOGY PARTNERS (MASSACHUSETTS), INC.
CAMBRIDGE/WASHINGTON ACQUISITION CORP.
EXCELL DATA CORPORATION
AGREEMENT AND PLAN OF MERGER
Dated as of August 31, 1998
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of August 31, 1998 (this
"Agreement"), by and among Cambridge Technology Partners (Massachusetts), Inc.,
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a Delaware corporation ("Cambridge"); Cambridge/Washington Acquisition Corp., a
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Washington corporation and a wholly-owned subsidiary of Cambridge ("Merger
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Sub"); Excell Data Corporation, a Washington corporation ("Excell"); and the
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undersigned stockholders of Excell (the "Stockholders").
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Intending to be legally bound, and in consideration of the mutual
representations, warranties, covenants and agreements contained herein,
Cambridge, Merger Sub, Excell and the Stockholders agree as follows:
ARTICLE I
THE MERGER
1.1 The Merger. Subject to the terms and conditions hereof, and in
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accordance with the Washington Business Corporation Act (the "WBCA"), Merger Sub
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will be merged with and into Excell (the "Merger"). Articles of Merger and any
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other required documents (collectively, the "Merger Documents"), substantially
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in the form attached as Exhibit 1.1, will be duly prepared, executed and
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acknowledged by Excell and Merger Sub, as required, and thereafter delivered to
the Secretary of State of Washington for filing in accordance with the WBCA
contemporaneously with the Closing (as defined in Section 1.3). The Merger will
become effective at such time as the Merger Documents have been filed with the
Secretary of State of Washington (the "Effective Time"). Following the Merger,
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Excell will continue as the surviving corporation of the Merger (the
"Surviving Corporation") under the laws of the State of Washington, and the
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separate corporate existence of Merger Sub will cease.
1.2 Effects of the Merger. At and after the Effective Time, (i) the
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Merger will have all of the effects provided by the Articles of Merger and
applicable law, (ii) the Articles of Incorporation of Excell will be amended in
the form attached as Appendix A to Exhibit 1.1 until duly further amended, (iii)
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the bylaws of Merger Sub will be the bylaws of the Surviving Corporation until
duly amended, (iv) the directors of Merger Sub will be the directors of the
Surviving Corporation, to hold office in accordance with the bylaws of the
Surviving Corporation, (v) the officers of Merger Sub will be the officers of
the Surviving Corporation, to hold office in accordance with the bylaws of the
Surviving Corporation and (vi) the issued and outstanding certificates for the
capital stock of Merger Sub will be the issued and outstanding certificates
initially representing all of the issued capital stock of the Surviving
Corporation. The Merger is intended to be a reorganization within the meaning of
Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended (the
"Code"), and this Agreement is intended to constitute a "plan of reorganization"
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within the meaning of the regulations promulgated under Section 368 of the Code.
1.3 Closing. The closing of the transactions contemplated by this
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Agreement (the "Closing") will take place as soon as practicable (but no more
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than three (3) business days) after satisfaction or waiver of the last to be
fulfilled of the conditions set forth in Article IX that by their terms are not
to occur at the Closing (the "Closing Date"), but in no event later than August
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31, 1998, at the offices of Xxxxxx & Xxxx PC in Seattle, Washington, unless
another date or place is agreed to in writing by Cambridge and Excell. If all of
conditions set forth in Article IX hereof are determined to be satisfied (or
duly waived) at the Closing, concurrently with the Closing the parties hereto
will cause the Merger to be consummated by the filing of the Merger Documents
with the Secretary of State of Washington. The Closing will be deemed to have
concluded at the Effective Time.
1.4 Approval by the Stockholders of Excell. Excell will take all
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action necessary in accordance with applicable law, its Charter Documents (as
defined below) and any agreements to which it is a party to solicit the approval
of this Agreement, the Merger and all of the transactions contemplated hereby by
all stockholders of Excell by means of a unanimous written consent of
stockholders in accordance with the WBCA, or if it is unable to obtain such
written consent, by a duly convened meeting of stockholders. Excell will use its
reasonable best efforts to obtain such stockholder approval. Excell represents
and warrants that its Board of Directors has duly (i) approved the Merger in
accordance with the WBCA and (ii) resolved to recommend to the stockholders of
Excell that they approve this Agreement, the Merger and all of the transactions
contemplated hereby.
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ARTICLE II
CONVERSION AND EXCHANGE OF SHARES; DISSENTING SHARES
2.1 Conversion of Shares of Excell Common Stock.
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(a) Subject, without limitation, to the provisions of Section 2.3
hereof, at the Effective Time, all of the shares of common stock, $.01 par
value, of Excell ("Excell Common Stock") issued and outstanding immediately
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prior to the Effective Time (excluding any Excell Common Stock held by Cambridge
or Merger Sub or any other subsidiary of Cambridge, or by Excell, which shares
("Excluded Shares") will be automatically canceled in the Merger without payment
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of any consideration therefor, and excluding Dissenting Shares (as defined in
Section 2.3 hereof)), will automatically, by virtue of the Merger and without
any action on the part of the holder thereof, be converted into shares of common
stock, $.01 par value per share, of Cambridge ("Cambridge Common Stock") in
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accordance with Section 2.1(c), and cash (rounded down to the nearest whole
cent) in lieu of fractional shares, if any, pursuant to Section 2.6 below.
Shares of Excell Common Stock that are actually issued and outstanding
immediately prior to the Effective Time, excluding the Excluded Shares, are
sometimes referred to herein as the "Outstanding Excell Shares."
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(b) The aggregate number of shares of Cambridge Common Stock to be
issued in exchange for the acquisition of all Outstanding Excell Shares will be
equal to 1,680,435 shares. Such shares are herein referred to as the "Cambridge
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Merger Shares". As among the parties, each Cambridge Merger Share will be deemed
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to have a value of $46.00 per share (the "Deemed Value Per Cambridge Share").
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(c) The ratio at which one Outstanding Excell Share will be converted
into shares of Cambridge Common Stock at the Effective Time is herein called the
"Conversion Ratio" and will be calculated as set forth in this Section 2.1(c).
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Subject to Section 2.3, at the Effective Time, each Outstanding Excell Share
will be converted into the right to receive that number (which may be a
fraction) of shares of Cambridge Common Stock that equals the quotient obtained
by dividing the number of Cambridge Merger Shares by the number of Outstanding
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Excell Shares plus the number, if any, of shares of Excell Common Stock subject
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to outstanding options, warrants or other rights to purchase or acquire Excell
Common Stock immediately prior to the Effective Time. Each holder of
Outstanding Excell Shares will be entitled to receive that aggregate number of
shares of Cambridge Common Stock equal to the Conversion Ratio multiplied by the
number of Outstanding Excell Shares held by such holder immediately prior to the
Effective Time, subject to Section 2.3 herein.
(d) At the Effective Time, each share of common stock, $.01 par
value, of Merger Sub issued and outstanding immediately prior to the Effective
Time will, by virtue of the Merger and without any action on the part of the
holder hereof, be converted into one share of common stock, $.01 par value, of
the Surviving Corporation.
2.2 Escrow Shares. Ten percent (10%) of the Cambridge Merger Shares,
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rounded up to the nearest whole share (the "Escrow Shares") will be deposited
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and held in escrow in accordance with the Escrow Agreement attached as Exhibit
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2.2 (the "Escrow Agreement") as the first source, but not the sole source, of
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indemnification payments that may become due to Cambridge pursuant to Article X.
The Escrow Shares will be withheld on a pro rata basis among the holders of the
Outstanding Excell Shares. The exact number of Escrow Shares held for the
account of each Excell
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stockholder will be determined at the Closing by the agreement of Cambridge and
Excell, which shall be evidenced by an exhibit to the Escrow Agreement. The
delivery of the Escrow Shares will be made on behalf of the holders of the
Outstanding Excell Shares in accordance with the provisions hereof, with the
same force and effect as if such shares had been delivered by Cambridge directly
to such holders and subsequently delivered by such holders to the Escrow Agent.
The adoption of this Agreement by the stockholders of Excell will also
constitute their approval of the terms and provisions of the Escrow Agreement,
which is an integral term of the Merger.
2.3 Dissenting Shares. Any holder of shares of Excell Common Stock
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that are outstanding on the record date for the determination of which holders
will be entitled to vote for or against the Merger who did not vote such shares
in favor of the Merger or sign and deliver a written consent thereto with
respect to such shares (the shares of Excell Common Stock then outstanding that
are not thus voted or as to which such consents are not signed and delivered are
referred to as "Dissenting Shares") will be entitled to exercise dissenters'
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rights pursuant to Chapter 23B.13 of the WBCA with respect to such Dissenting
Shares provided that such holder meets all of the requirements of the WBCA with
respect to such Dissenting Shares, and will not be entitled to receive Cambridge
Merger Shares, unless otherwise provided by the WBCA or agreed in writing by
Cambridge. Excell will, after consultation with Cambridge, give such notices
with respect to dissenters' rights as may be required by the WBCA as soon as
practicable.
2.4 Delivery of Evidence of Ownership. At the Closing, each holder of
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a certificate or other documentation representing Outstanding Excell Shares,
other than Dissenting Shares, will surrender such certificates or other
documentation to Cambridge, and, if not previously delivered, duly executed
counterparts of this Agreement, the Escrow Agreement, the Investment Agreement
(as defined below) and the Registration Rights Agreement (as defined below) and
such other duly executed documentation as may be reasonably required by
Cambridge to effect a transfer of such shares, and upon such surrender and after
the Effective Time each such holder will be entitled to receive promptly from
Cambridge or its transfer agent certificates registered in the name of such
holder representing the applicable number of Cambridge Merger Shares, and the
cash (calculated pursuant to Section 2.6, which will be paid by check), to which
such holder is entitled pursuant to the provisions of this Agreement, with a
portion of such shares to be deposited in escrow pursuant to the Escrow
Agreement, as provided in Section 2.2. Execution and delivery of this
Agreement, the Escrow Agreement, the Investment Agreement and the Registration
Rights Agreement within 30 days after the Effective Time will be a condition
precedent to the issuance of the Cambridge Merger Shares and cash to each Excell
stockholder otherwise entitled thereto.
2.5 No Further Ownership Rights in Excell Common Stock. The execution
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and delivery of this Agreement by the stockholders of Excell will be deemed, at
the Effective Time, to constitute full satisfaction and termination of all
rights and agreements pertaining to Excell Common Stock pursuant to the WBCA, by
contract or otherwise, including the Shareholders Agreement currently in effect.
After the Effective Time, there will be no transfers on the stock transfer books
of Excell of Excell Common Stock or exercises of any options, warrants or other
rights to acquire Excell Common Stock. Prior to or upon Closing, Excell will
cause all options, warrants and other rights, if any, to purchase or acquire
Excell Common Stock to either be exercised or canceled. Until surrendered to
Cambridge, each certificate for Excell Common Stock will, after the Effective
Time, represent only the right to receive shares of Cambridge Common Stock and
the right to receive cash
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into which the shares of Excell Common Stock formerly represented thereby will
have been converted pursuant to this Agreement. Any dividends or other
distribution declared after the Effective Time with respect to Cambridge Common
Stock will be paid to the holder of any certificate for shares of Excell Common
Stock when the holder thereof surrenders such certificate to Cambridge in
accordance with this Agreement.
2.6 No Fractional Shares. No certificates or scrip for fractional
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shares of Cambridge Common Stock will be issued, no Cambridge stock split or
dividend will be paid in respect of any fractional share interest, and no such
fractional share interest will entitle the owner thereof to vote or to any
rights of or as a stockholder of Cambridge. In lieu of such fractional shares,
any holder of Outstanding Excell Shares who would otherwise be entitled to a
fraction of a share of Cambridge Common Stock (after aggregating all fractional
shares of Cambridge Common Stock to be received by such holder) will be paid the
cash value of such fraction, which will be equal to such fraction multiplied by
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the Deemed Value Per Cambridge Share.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF EXCELL
Except as set forth in the disclosure schedule of Excell dated as of
the date hereof and delivered herewith to Cambridge (the "Excell Disclosure
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Schedule"), which identifies the section and subsection to which each disclosure
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therein relates (provided, however, that Excell will be deemed to have
adequately disclosed with respect to any section or subsection any matters that
are clearly described elsewhere in the Excell Disclosure Schedule if the
applicability of such disclosure to such non-referenced sections or subsections
is clearly apparent and Excell has not intentionally omitted any required cross-
references), and whether or not the Excell Disclosure Schedule is referred to in
a specific section or subsection of this Agreement, Excell represents and
warrants to Cambridge and Merger Sub as follows (it being understood that the
Stockholders are obligated to indemnify Cambridge pursuant to Article X for any
breaches of the following representations and warranties by Excell even though
such Stockholders are not making such representations and warranties
themselves):
3.1 Organization, Standing and Power; Subsidiaries.
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(a) Excell is a corporation duly organized, validly existing and in
good standing under the laws of the State of Washington, has all requisite
corporate power and authority to own, lease and operate its properties and to
carry on its businesses as now being conducted, and is duly qualified and in
good standing to do business in each jurisdiction in which a failure to so
qualify would have a material adverse effect on the Business Condition (as
hereinafter defined) of Excell.
As used in this Agreement, "Business Condition" with respect to any
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entity means the business, financial condition, results of operations, assets or
prospects (as defined below) (without giving effect to the consequences of the
transactions contemplated by this Agreement, and
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other than changes in general economic conditions) of such entity or entities
including its Subsidiaries taken as a whole. In this Agreement, a "Subsidiary"
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of any corporation or other entity means a corporation, partnership, limited
liability company or other entity of which such corporation or entity directly
or indirectly owns or controls a majority of the equity interests or voting
securities or other interests that are sufficient to elect a majority of the
Board of Directors or other managers of such corporation, partnership, limited
liability company or other entity, and "prospects" means events, conditions,
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facts or developments that are known to Excell and that in the reasonable course
of events are expected to have an effect on future operations of the business as
presently conducted by Excell, but will exclude the results of any changes that
are made at the specific written direction of Cambridge, that are specifically
contemplated herein, or that directly result from this transaction.
Excell has no Subsidiaries. Excell has delivered to Cambridge complete
and correct copies of the articles or certificate of incorporation, bylaws
and/or other primary charter and organizational documents ("Charter Documents")
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of Excell, in each case, as amended to the date hereof. The minute books and
stock records of Excell, complete and correct copies of which have been
delivered to Cambridge, contain correct and complete records of all material
proceedings and actions taken at all meetings of, or effected by written consent
of, the stockholders of Excell and its Board of Directors, and all original
issuances and subsequent transfers, repurchases and cancellations of Excell's
capital stock. Section 3.1 of the Excell Disclosure Schedule contains a
complete and correct list of the officers and directors of Excell.
(b) Excell has never owned, nor does it currently own, directly or
indirectly, any capital stock or other equity securities of any corporation
(excluding passive investments comprising less than 1% of any issuer) or have
direct or indirect equity or ownership interest in any partnership, limited
liability company, joint venture or other entity.
3.2 Capital Structure.
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(a) The authorized capital stock of Excell consists of 2,700,000
shares of Excell Common Stock, of which 1,794,138 shares are issued and
outstanding as of the date of this Agreement and no shares are issued and held
as treasury shares by Excell. The Excell Disclosure Schedule sets forth all
holders of Excell Common Stock and the number of shares owned. The Excell
Disclosure Schedule also sets forth any options, warrants, calls, conversion
rights, commitments, agreements, contracts, understandings, restrictions,
arrangements or rights of any character (each, an "Excell Option") to which
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Excell is a party or by which Excell may be bound obligating Excell to issue,
deliver or sell, or cause to be issued, delivered or sold, additional shares of
the capital stock of Excell, or obligating Excell to grant, extend, or enter
into any such option, warrant, call, conversion right, conversion payment,
commitment, agreement, contract, understanding, restriction, arrangement or
right.
(b) All outstanding shares of Excell Common Stock are, and any
shares of Excell Common Stock issued upon exercise of any Excell Options will
be, validly issued, fully paid, nonassessable and not subject to any preemptive
rights (other than those which have been duly waived), or to any agreement to
which Excell is a party or by which Excell may be bound. Excell
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does not have outstanding any bonds, debentures, notes or other indebtedness the
holders of which (i) have the right to vote (or convertible or exercisable into
securities having the right to vote) with holders of shares of Excell Common
Stock on any matter ("Excell Voting Debt") or (ii) are or will become entitled
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to receive any payment as a result of the execution of this Agreement or the
completion of the transactions contemplated hereby.
3.3 Authority. The execution, delivery and performance of this
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Agreement and all other agreements contemplated hereby by Excell have been duly
authorized by all necessary action of the Board of Directors of Excell and its
stockholders. Certified copies of the resolutions adopted by the Board of
Directors of Excell and its stockholders approving this Agreement, all other
agreements contemplated hereby and the Merger have been or will be provided to
Cambridge prior to the Closing. Excell has duly and validly executed and
delivered this Agreement and has, or prior to Closing, will have duly and
validly executed and delivered all other agreements contemplated hereby, and
each of this Agreement and such other agreements constitutes a valid, binding
and enforceable obligation of Excell in accordance with its terms.
3.4 Compliance with Laws and Other Instruments; Non-Contravention.
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Excell holds, and at all times has held, all licenses, permits and
authorizations from all Governmental Entities (as defined below) necessary for
the lawful conduct of its business pursuant to all applicable statutes, laws,
ordinances, rules and regulations of all such authorities having jurisdiction
over it or any part of its operations, excepting, however, when such failure to
hold would not have a material adverse effect on Excell's Business Condition.
There are no material violations or claimed violations known by Excell of any
such license, permit or authorization or any such statute, law, ordinance, rule
or regulation. Assuming the receipt of all Consents (as defined below), neither
the execution, delivery or performance of this Agreement and all other
agreements contemplated hereby by Excell and the Stockholders, nor the
consummation of the Merger or any other transaction described herein, does or
will, after the giving of notice, or the lapse of time, or otherwise, conflict
with, result in a breach of, or constitute a default under, the Charter
Documents of Excell or any federal, foreign, state or local court or
administrative order or process, statute, law, ordinance, rule or regulation, or
any material contract, agreement or commitment to which Excell is a party, or
under which Excell is obligated, or by which Excell or any of the rights,
properties or assets of Excell are subject or bound; result in the creation of
any Lien (as defined below) upon, or otherwise adversely affect, any of the
rights, properties or assets of Excell; terminate, amend or modify, or give any
party the right to terminate, amend, modify, abandon or refuse to perform or
comply with, any material contract, agreement or commitment to which Excell is a
party, or under which Excell is obligated, or by which Excell or any of the
rights, properties or assets of Excell are subject or bound; or accelerate,
postpone or modify, or give any party the right to accelerate, postpone or
modify, the time within which, or the terms and conditions under which, any
liabilities, duties or obligations are to be satisfied or performed, or any
rights or benefits are to be received, under any material contract, agreement or
commitment to which Excell is a party, or under which Excell may be obligated,
or by which Excell or any of the rights, properties or assets of Excell are
subject or bound. Section 3.4 of the Excell Disclosure Schedule sets forth each
material agreement, contract or other instrument binding upon Excell requiring a
notice or consent (by its terms or as a result of any conflict or other
contravention required to be disclosed in the Excell Disclosure Schedule
pursuant to the preceding provisions of this Section 3.4) as a result of the
execution, delivery or performance of this Agreement and all other agreements
contemplated hereby by Excell and the Stockholders or the
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consummation of the Merger or any other transaction described herein (each such
notice or consent, a "Consent"). No consent, approval, order, or authorization
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of or registration, declaration, or filing with or exemption (also a "Consent")
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by, any court, administrative agency or commission or other governmental
authority or instrumentality, whether domestic or foreign (each a "Governmental
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Entity") is required by Excell in connection with its execution, delivery or
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performance of this Agreement and all other agreements contemplated hereby by
Excell and the Stockholders or its consummation of the Merger or any other
transaction described herein, except for the filing by Excell and Merger Sub of
the appropriate Merger Documents with the Secretary of State of Washington.
3.5 Technology and Intellectual Property Rights.
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(a) For the purposes of this Agreement, "Excell Intellectual
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Property" consists of the following intellectual property:
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(i) all patents, trademarks, trade names, service marks, trade
dress, copyrights and any renewal rights therefor, mask works, schematics,
software, firmware, technology, manufacturing processes, supplier lists,
customer lists, trade secrets, know-how, moral rights, and applications and
registrations for any of the foregoing;
(ii) all documents, records and files relating to design, end user
documentation, manufacturing, quality control, sales, marketing or customer
support for all intellectual property described herein;
(iii) all other tangible or intangible proprietary information and
materials; and
(iv) all license and similar rights in any third party product or
any third party intellectual property of the types described in (i) through
(iii) above;
that are owned or held by Excell or that are being, and/or have been, used, or
are currently under development for use, in the business of Excell as it has
been, is currently or is currently planned to be conducted; provided, however,
that Excell Intellectual Property will not include any commercially available
third party software or related intellectual property.
(b) Section 3.5 of the Excell Disclosure Schedule lists: (i) all
patents, copyright registrations, mask works, registered trademarks, registered
service marks, trade dress, any renewal rights for any of the foregoing, and any
applications and registrations for any of the foregoing, that are included in
Excell Intellectual Property and owned by Excell; (ii) the general types of
hardware products and tools, software products and tools and services that are
currently published, offered, or under development by Excell; and (iii) all
licenses, sublicenses and similar agreements to which Excell is a party and
pursuant to which Excell or any other person (as used in this Agreement, the
term "person" includes any entity) is authorized to use any Excell Intellectual
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Property. The disclosures described in (iii) hereof include the identities of
the parties to the relevant agreements, a description of the nature and subject
matter thereof, the term thereof and the applicable royalty or summary of any
formula or procedure for determining such royalty.
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(c) Excell Intellectual Property that is necessary for the conduct of
its business as now being conducted consists solely of items and rights that are
either: (i) owned solely by Excell; (ii) in the public domain; or (iii)
rightfully used and authorized for use by Excell and its successors pursuant to
a valid license. Section 3.5 of the Excell Disclosure Schedule separately lists
any material Excell Intellectual Property that consists of a license or
sublicense of intellectual property of a third party. Excell has all rights in
Excell Intellectual Property necessary to carry out Excell's current activities
and future activities that are under active current development.
(d) Excell is not, nor as a result of the execution or delivery of
this Agreement and all other agreements contemplated hereby, or performance of
Excell's obligations hereunder or the consummation of the Merger, will Excell
be, in violation of any license, sublicense or other agreement relating to any
Excell Intellectual Property to which Excell is a party or otherwise bound and
which violation would have a material adverse effect on Excell's Business
Condition.
(e) The use of the Excell Intellectual Property by Excell or its
customers does not infringe any copyright, patent, trade secret, trademark,
service xxxx, trade name, firm name, logo, trade dress, mask work, moral right,
other intellectual property right, right of privacy, or right in personal data
of any person, which infringement, if prosecuted, would have a material adverse
effect on Excell's Business Condition. No claims (i) challenging the validity,
effectiveness, or ownership by Excell of any Excell Intellectual Property, or
(ii) to the effect that the use, reproduction, modification, manufacturing,
distribution, licensing, sublicensing, sale, or any other exercise of rights in
any product, work, technology, service, or process as used, provided or offered
at any time, or as proposed for use, reproduction, modification, distribution,
licensing, sublicensing, sale, or any other exercise of rights, by Excell
infringes or will infringe on any intellectual property or other proprietary or
personal right of any person have been asserted to Excell or, to the knowledge
of Excell (as defined below), are threatened by any person nor are there any
valid grounds for any bona fide claim of any such kind. There are no legal or
governmental proceedings, including interference, re-examination, reissue,
opposition, nullity, or cancellation proceedings pending that relate to any
Excell Intellectual Property, other than review of pending applications for
patents or trademarks, and Excell is not aware of any information indicating
that such proceedings are threatened or contemplated by any Governmental Entity
or any other person. All granted or issued patents and mask works and all
registered trademarks owned by Excell and all copyright registrations held by
Excell are valid, enforceable and subsisting. To the knowledge of Excell, there
is no unauthorized use, infringement, or misappropriation of any Excell
Intellectual Property by any third party, employee or former employee.
(f) Excell has secured from all parties who have created any portion
of, or otherwise have any rights in or to, Excell Intellectual Property valid
and enforceable written assignments of any such work or other rights to Excell.
(g) Excell has obtained written agreements from all employees and
from third parties with whom Excell, to its knowledge, has shared confidential
proprietary information (i) of Excell or (ii) received from others that Excell
is obligated to treat as confidential and to obtain the written agreement of
employees and others to keep confidential, that agreements require such
employees and third parties to keep such information confidential in accordance
with the terms thereof.
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3.6 Financial Statements; Business Information.
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(a) Excell has delivered to Cambridge an unaudited balance sheet (the
"Unaudited Balance Sheet") as of July 31, 1998 (the "Unaudited Balance Sheet
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Date") an audited balance sheet (the "Audited Balance Sheet") as of December 31,
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1997 (the "Audited Balance Sheet Date"), a reviewed balance sheet as of December
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31, 1996, and unaudited statements of income for the seven-month period ended
July 31, 1998, audited statements of income and cash flows for its 1997 fiscal
year, and reviewed statements of income and cash flows for its 1996 and 1995
fiscal years (all of such balance sheets and statements of income and cash flows
are collectively referred to as the "Financial Statements"). The Financial
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Statements: (i) are in accordance with the books and records of Excell; (ii)
present fairly, in all material respects, the financial position of Excell as of
the date indicated and the results of its operations and cash flows for such
periods; and (iii) have been prepared in accordance with generally accepted
accounting principles consistently applied (subject, in the case of unaudited
statements, to the absence of footnote disclosure and in the case of unaudited
interim statements to year-end adjustments, which will not be material either
individually or in the aggregate and except as described in the Section 3.6 of
the Excell Disclosure Schedule). As of the Unaudited Balance Sheet Date, there
were no material liabilities, claims or obligations of any nature, whether
accrued, absolute, contingent, anticipated or otherwise, whether due or to
become due, that are not shown or provided for either in the Unaudited Balance
Sheet or Section 3.6 of the Excell Disclosure Schedule, and since the Unaudited
Balance Sheet Date, Excell has incurred no liabilities, claims or obligations of
any nature, whether accrued, absolute, contingent, anticipated or otherwise
other than in the ordinary course of business and except for liabilities
incurred by Excell in connection with the preparation and execution of this
Agreement and the consummation of the transactions contemplated herein.
(b) All of the accounts, notes and other receivables which are
reflected in the Unaudited Balance Sheet were acquired in the ordinary course of
business; and, except to the extent reserved against in the Unaudited Balance
Sheet, all of the accounts, notes and other receivables which are reflected
therein have been collected in full, or are good and collectible, in the
ordinary course of business; and all of the accounts, notes and other
receivables which have been acquired by Excell since the Unaudited Balance Sheet
Date were acquired in the ordinary course of business and have been collected in
full, or are good and collectible, subject to an appropriate reserve determined
in a manner consistent with past practices of Excell, in the ordinary course of
business. No accounts, notes or other receivables are contingent upon the
performance by Excell of any obligation or contract. No person has any Lien on
any of such receivables and no agreement for deduction or discount has been made
with respect thereto.
(c) The business information previously prepared by Excell and
delivered to Cambridge was prepared in good faith, based on assumptions Excell
deems reasonable, was prepared for planning purposes, although no assurances are
given that Excell will engage in the activities described therein or achieve the
results projected therein.
3.7 Taxes.
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(a) The term "Taxes" as used herein means all federal, state, local
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and foreign income tax, alternative or add-on minimum tax, estimated, gross
income, gross receipts, sales, use,
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ad valorem, value added, transfer, franchise, capital profits, lease, service,
license, withholding, payroll, employment, excise, severance, stamp, occupation,
premium, property, environmental or windfall profit taxes, customs, duties and
other taxes, governmental fees and other like assessments and charges of any
kind whatsoever, together with all interest, penalties, additions to tax and
additional amounts with respect thereto, and the term "Tax" means any one of the
---
foregoing Taxes. The term "Tax Returns" as used herein means all returns,
-----------
declarations, reports, claims for refund, information statements and other
documents relating to Taxes, including all schedules and attachments thereto,
and including all amendments thereof, and the term "Tax Return" means any one of
----------
the foregoing Tax Returns.
(b) Excell has timely filed all Tax Returns required to be filed and
has paid or accrued all Taxes owed (whether or not shown as due on such Tax
Returns), including, without limitation, all Taxes which Excell is obligated to
withhold for amounts owing to employees, creditors and third parties. All Tax
Returns filed by Excell were complete and correct in all respects, and such Tax
Returns correctly reflected the facts regarding the income, business, assets,
operations, activities, status and other matters of Excell and any other
information required to be shown thereon. None of the Tax Returns filed by
Excell or Taxes payable by Excell have been the subject of an audit, action,
suit, proceeding, claim, examination, deficiency or assessment by any
Governmental Entity, and no such audit, action, suit, proceeding, claim,
examination, deficiency or assessment is currently pending or, to the knowledge
of Excell, threatened. Excell is not currently the beneficiary of any extension
of time within which to file any Tax Return, and Excell has not waived any
statute of limitation with respect to any Tax or agreed to any extension of time
with respect to a Tax assessment or deficiency. All material elections with
respect to Taxes affecting Excell, as of the date hereof, are set forth in the
Financial Statements or in Section 3.7 of the Excell Disclosure Schedule. None
of the Tax Returns filed by Excell for its three most recent fiscal years
contain a disclosure statement under former Section 6661 of the Code or Section
6662 of the Code (or any similar provision of state, local or foreign Tax law),
and any such disclosure statement filed previously by Excell was with respect to
a Tax period as to which the applicable Tax statute of limitations has expired.
Excell is not a party to any Tax sharing agreement or similar arrangement.
Excell has never been a member of a group filing a consolidated federal income
Tax Return (other than a group the common parent of which was Excell), and
Excell does not have any liability for the Taxes of any person (other than
Excell) under Treasury Regulation Section 1.1502-6 (or any corresponding
provision of state, local or foreign Tax law), as a transferee or successor, by
contract, or otherwise.
(c) Excell is not a party to any agreement, contract, arrangement or
plan that has resulted or would result, separately or in the aggregate, in the
payment of (i) any "excess parachute payments" within the meaning of Section
280G of the Code or (ii) any amount for which a deduction would be disallowed
or deferred under Section 162 or Section 404 of the Code. Excell has not agreed
to make any adjustment under Section 481(a) of the Code (or any corresponding
provision of state, local or foreign law) by reason of a change in accounting
method or otherwise. Excell does not have and has not had a permanent
establishment in any foreign country, as defined in any applicable Tax treaty or
convention between the United States and such foreign country. To the knowledge
of Excell, no portion of the Cambridge Merger Shares is subject to the Tax
withholding provisions of Section 3406 of the Code, or of Subchapter A of
Chapter 3 of the Code or of any other provision of law. None of the assets of
Excell is property which is required to be treated
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as being owned by any other person pursuant to the so-called "safe harbor lease"
provisions of former Section 168(f)(8) of the Code. None of the assets of Excell
directly or indirectly secures any debt, the interest on which is tax exempt
under Section 103(a) of the Code. None of the assets of Excell is "tax-exempt
use property" within the meaning of Section 168(h) of the Code. No claim has
ever been made by any Governmental Entity in a jurisdiction where Excell does
not file Tax Returns that it is or may be subject to Tax in that jurisdiction.
Excell has not participated in an international boycott as defined in Section
999 of the Code. None of the shares of outstanding capital stock of Excell are
subject to a "substantial risk of forfeiture" within the meaning of Section 83
of the Code.
(d) There are no liens for Taxes (other than for ad valorem Taxes not
yet due and payable) upon the assets of Excell. The unpaid Taxes of Excell did
not, as of the Balance Sheet Date, exceed the reserve for actual Taxes (as
opposed to any reserve for deferred Taxes established to reflect timing
differences between book and Tax income) as shown on the Unaudited Balance
Sheet, and will not exceed such reserve as adjusted for the passage of time
through the Closing Date in accordance with the past custom and practice of
Excell in filing Tax Returns (taking into account any Taxes incurred as a result
of the transactions contemplated by this Agreement). Section 3.7 of the Excell
Disclosure Schedule sets forth, consistent with its normal record keeping,
Excell's Tax basis, as of December 31, 1997, in each of its asset groups.
Excell is not a party to any joint venture, partnership, limited liability
company or other arrangement or contract which could be treated as a partnership
for federal income tax purposes.
(e) Excell has never filed a consent pursuant to Section 341(f) of
the Code, relating to collapsible corporations. Excell and its stockholders
made (i) a valid election for Excell to be treated as an "S corporation", as
that term is defined in Section 1361(a) of the Code, for federal income tax
purposes and (ii) a similar valid election under the laws of Washington or any
other applicable Governmental Entity, and all of such elections will be in
effect at the Effective Time. Section 3.7 of the Excell Disclosure Schedule
lists each such election and a true copy of each such election is attached
thereto; there are no grounds for the revocation of any such election and no
such election will be revoked retroactively or otherwise except at the Effective
Time by reason of the Merger. Excell has been an S corporation at all times
since its April 1, 1996 through the date hereof. Neither Excell nor any of its
shareholders has taken any action that would cause, or would result in, the
termination of the S corporation status of Excell, other than pursuant to this
Agreement. To the knowledge of Excell, no Tax will be imposed on Excell under
Section 1374 of the Code or any corresponding provisions of the laws of
Washington or any other applicable Governmental Entity as a result of the
transactions contemplated by this Agreement.
(f) To the knowledge of Excell, there has not been any audit, action,
suit, proceeding, claim, examination, deficiency or assessment by any
Governmental Entity of any Tax Return filed by a stockholder of Excell with
respect to, or which may relate to, items of income, gain, deduction, loss or
credit of Excell; and no such audit, action, suit, proceeding, claim,
examination, deficiency or assessment is in progress and such stockholders have
not been notified by any Governmental Entity that any such audit is contemplated
or pending.
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3.8 Absence of Certain Changes and Events. From the Audited Balance
-------------------------------------
Sheet Date, there has not been:
(a) Any transaction involving more than $25,000 entered into by Excell
other than in the ordinary course of business; any change (or any development or
combination of developments of which Excell has knowledge which is reasonably
likely to result in such a change) in Excell's Business Condition, other than
changes in the ordinary course of business which in the aggregate have not been
and are not expected to be materially adverse to Excell's Business Condition;
or, without limiting the foregoing, any loss of or damage to any of the
properties of Excell due to fire or other casualty or other loss, whether or not
insured, amounting to more than $25,000 in the aggregate;
(b) Any declaration, setting aside or payment of any dividend or other
distribution with respect to any shares of capital stock of Excell, or any
repurchase, redemption, retirement or other acquisition by Excell of any
outstanding shares of capital stock, any Excell Option, or other securities of,
or other equity or ownership interests in, Excell;
(c) Any discharge or satisfaction of any Lien or payment or
satisfaction of any obligation or liability (whether absolute, accrued,
contingent or otherwise and whether due or to become due) other than current
liabilities shown on the Unaudited Balance Sheet and current liabilities
incurred since the Unaudited Balance Sheet Date in the ordinary course of
business;
(d) Any change in the Charter Documents of Excell or any amendment of
any term of any outstanding security of Excell;
(e) Any incurrence, assumption or guarantee by Excell of any
indebtedness for borrowed money other than in the ordinary course of business
and in an aggregate amount exceeding $25,000;
(f) Any creation or assumption by Excell of any Lien on any asset;
(g) Any making of any loan, advance or capital contributions to, or
investment in, any person;
(h) Any sale, lease, pledge, transfer or other disposition of any
material capital asset, except where the same was replaced;
(i) Outside Excell's ordinary course of business, any material
transaction or commitment made, or any material contract or agreement entered
into, by Excell relating to its assets or business (including the acquisition or
disposition of any assets) or any relinquishment by Excell of any contract or
other right;
(j) Any (A) grant of any severance or termination pay to any director,
officer or management employee of Excell, (B) entering into of any employment,
severance, management, consulting, deferred compensation or other similar
agreement (or any amendment to any such existing agreement) with any director,
officer or management employee of Excell, (C) change in benefits payable under
existing severance or termination pay policies or employment, severance,
management, consulting or other similar agreements with respect to any director,
officer or management employee of Excell, (D) change in compensation, bonus or
other benefits payable to
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directors, officers or management employees of Excell, (E) any of the foregoing
with any other employee of Excell other than in the ordinary course of Excell's
business and that are described in general terms in Section 3.8 of the Excell
Disclosure Schedule or (F) change in the payment or accrual policy with respect
to any of the foregoing;
(k) Any labor dispute or any activity or proceeding by a labor union
or representative thereof to organize any employees of Excell, or any lockouts,
strikes, slowdowns, work stoppages or threats thereof by or with respect to any
employees of Excell;
(l) Any notes or accounts receivable or portions thereof written off
by Excell as uncollectible in an aggregate amount exceeding $25,000;
(m) Any issuance or sale of any stock, bonds, phantom stock interest
or other securities of which Excell is the issuer, or the grant, issuance or
change of any stock options, warrants, or other rights to purchase securities of
Excell or phantom stock interest in Excell;
(o) Any cancellation of any debts or claims or waiver of any rights of
substantial value in an aggregate amount exceeding $25,000;
(p) Any sale, assignment or transfer of any Excell Intellectual
Property or other similar assets, including licenses therefor, outside of
Excell's ordinary course of business;
(q) Any capital expenditures, or commitment to make any capital
expenditures, for additions to property, plant or equipment in an aggregate
amount exceeding $100,000;
(r) Payment of any amounts to, or liability incurred to or in respect
of, or sale of any properties or assets (real, personal or mixed, tangible or
intangible) to, or any transaction or any agreement or arrangement with, any
corporation or business in which Excell or any of its corporate officers or
directors, or any "affiliate" or "associate" (as such terms are defined in the
rules and regulations promulgated under the Securities Act of 1933, as amended
(the "Securities Act") of any such person, has any direct or indirect ownership
--------------
interests; or
(s) Any agreement, undertaking or commitment to do any of the
foregoing.
3.9 Leases in Effect. All real property leases and subleases as to
----------------
which Excell is a party and any amendments or modifications thereof are listed
in Section 3.9 of the Excell Disclosure Schedule (each a "Lease" and
-----
collectively, the "Leases") are valid, in full force and effect and enforceable,
------
and there are no existing defaults on the part of Excell, and Excell has not
received or given notice of default or claimed default with respect to any
Lease, nor is there any event known to Excell that with notice or lapse of time,
or both, would constitute a default on the part of Excell thereunder.
3.10 Personal Property; Real Estate. Excell has good and marketable
------------------------------
title, free and clear of all title defects and security interests, liens,
charges, restrictions, claims, encumbrances or assessments of any nature
whatsoever ("Liens") (including, without limitation, leases, chattel mortgages,
-----
conditional sale contracts, purchase money security interests, collateral
security
-14-
arrangements and other title or interest-retaining agreements) to all inventory,
receivables, furniture, machinery, equipment and other personal property,
tangible or otherwise, reflected on the Unaudited Balance Sheet or used in
Excell's business, except for acquisitions and dispositions since the Unaudited
Balance Sheet Date in the ordinary course of business. The Excell Disclosure
Schedule lists (i) all computer equipment and (ii) all other personal property,
in each case having a depreciated book value of $10,000 or more, which are used
by Excell in the conduct of its business, and all such equipment and property,
in the aggregate, is in good operating condition and repair, reasonable wear and
tear excepted, or has been fully depreciated. There is no asset used or required
by Excell in the conduct of its business as presently operated which is not
either owned by it or licensed or leased to it.
(b) Section 3.10 of the Excell Disclosure Schedule contains a schedule
setting forth and describing all real property which is leased by Excell, or in
which Excell has any other right, title or interest. Excell does not own any
real property. True and complete copies of each lease have been provided to
Cambridge, and such leases constitute the entire understanding relating to
Excell's use and occupancy of the leased premises. The leases are presently in
full force and effect without further amendment or modification. Excell is not
in default in the performance of obligations under any lease, and Excell does
not know of any state of facts which with the giving of notice or the passage of
time, or both, would constitute a default by Excell or any other party
thereunder.
(c) To the knowledge of Excell, the improvements located on the real
property described in Section 3.10 of the Excell Disclosure Schedule are not the
subject of any official complaint or notice of violation of any applicable
zoning ordinance or building code and there is no use or occupancy restriction
or condemnation proceeding pending, or threatened against Excell.
3.11 Certain Transactions. Except for (a) relationships with Excell as
--------------------
an officer, director, or employee thereof (and compensation by Excell in
consideration of such services) and (b) relationships with Excell as
stockholders or option holders therein, none of the directors, officers, or
Stockholders of Excell, or any member of any of their families, is presently a
party to, or was a party to during the year preceding the date of this
Agreement, any transaction, or series of similar transactions, with Excell, in
which the amount involved exceeds $60,000, including, without limitation, any
contract, agreement, or other arrangement (i) providing for the furnishing of
services to or by, (ii) providing for rental of real or personal property to or
from, or (iii) otherwise requiring payments to or from, any such person or any
corporation, partnership, trust, or other entity in which any such person has or
had a 5%-or-more interest (as a stockholder, partner, beneficiary, or otherwise)
or is or was a director, officer, employee, or trustee. None of Excell's
officers or directors has any interest in any property, real or personal,
tangible or intangible, including inventions, copyrights, trademarks, or trade
names, used in or pertaining to the business of Excell, or any supplier,
distributor, or customer of Excell, except for the normal rights of a
stockholder, and except for rights under existing employee benefit plans.
3.12 Litigation and Other Proceedings. There is no action, suit,
--------------------------------
claim, investigation or proceeding (or any basis therefor known to Excell)
pending against or, to the knowledge of Excell, threatened against Excell or its
properties and assets before any court or arbitrator or any Governmental Entity.
Excell is not subject to any order, writ, judgment, decree, or injunction that
has a material adverse effect on Excell's Business Condition.
-15-
3.13 No Defaults. Excell is not, nor has Excell received notice that
-----------
it would be with the passage of time, in default or violation of any term,
condition, or provision of (i) the Charter Documents; (ii) any judgment, decree,
or order applicable to Excell; or (iii) any loan or credit agreement, note,
bond, mortgage, indenture, contract, agreement, lease, license, or other
instrument to which Excell is now a party or by which it or any of its
properties or assets may be bound, except for defaults and violations which,
individually or in the aggregate, would not have a material adverse effect on
the Business Condition of Excell.
3.14 Major Contracts. Excell is not a party to or subject to:
---------------
(a) Any union contract, or any employment contract or arrangement
(other than "at-will" employment arrangements) providing for future
compensation, written or oral, with any officer, consultant, director, or
employee;
(b) Any plan or contract or arrangement, written or oral, providing
for bonuses, pensions, deferred compensation, retirement payments, profit-
sharing or the like;
(c) Any joint venture contract or arrangement or any other agreement
which has involved or is expected to involve a sharing of profits;
(d) Any OEM agreement, reseller or distribution agreement, volume
purchase agreement, corporate end user sales or service agreement, reproduction
or replication agreement or manufacturing agreement in which the amount involved
exceeds annually, or is expected to exceed in the aggregate over the life of the
contract, $50,000 or pursuant to which Excell has granted or received
manufacturing rights, most favored nation pricing provisions, or exclusive
marketing, production, publishing or distribution rights related to any product,
group of products or territory;
(e) Any lease for real property, and any lease for personal property
in which the amount of payments which Excell is required to make on an annual
basis exceeds $50,000;
(f) Any agreement, license, franchise, permit, indenture, or
authorization which has not been terminated or performed in its entirety and not
renewed which may be, by its terms, terminated, impaired, or adversely affected
by reason of the execution of this Agreement and all other agreements
contemplated hereby, the consummation of the Merger, or the consummation of the
transactions contemplated hereby or thereby;
(g) Except for trade indebtedness incurred in the ordinary course of
business, any instrument evidencing or related in any way to indebtedness
incurred in the acquisition of companies or other entities or indebtedness for
borrowed money by way of direct loan, sale of debt securities, purchase money
obligation, conditional sale, guarantee, or otherwise which individually is in
the amount of $25,000 or more;
(h) Any license agreement, either as licensor or licensee (excluding
nonexclusive hardware and software licenses granted to customers in the ordinary
course of business and commercially available in-licensed software
applications);
-16-
(i) Any contract or agreement containing covenants purporting to limit
Excell's freedom to compete in any line of business in any geographic area; or
(j) Any contract or agreement, not elsewhere specifically disclosed
pursuant to this Agreement, involving the expected payment or receipt by Excell
of more than $50,000 in the aggregate, except that with respect to client
contracts the amount shall be $200,000 and solely for the 1998 calendar year (it
being understood that the foregoing are to be based on good faith estimates
based upon historical activity to date).
All contracts, arrangements, plans, agreements, leases, licenses,
franchises, permits, indentures, authorizations, instruments and other
commitments which are listed in the Excell Disclosure Schedule pursuant to this
Section 3.14 are valid and in full force and effect, and Excell has not, nor, to
the knowledge of Excell, has any other party thereto, breached any material
provisions of, or entered into default in any material respect under the terms
thereof. Since the Audited Balance Sheet Date, Excell has not amended, modified
or terminated the terms of the contracts or agreements referred to in this
Section 3.14 unless such amendment, modification or termination was in the
ordinary course of business and Excell has provided Cambridge with written
notification of such.
3.15 Material Relations. To Excell's knowledge, none of the parties to
------------------
any of the contracts identified in the Excell Disclosure Schedule pursuant to
Section 3.14 have terminated, or, to the knowledge of Excell, in any way
expressed to Excell an intent to reduce or terminate the amount of its business
with Excell in the future.
3.16 Insurance and Banking Facilities. Section 3.16 of the Excell
--------------------------------
Disclosure Schedule contains a complete and correct list of (i) all contracts of
insurance or indemnity of Excell in force at the date of this Agreement
(including name of insurer or indemnitor, agent, annual premium, coverage,
deductible amounts and expiration date) and (ii) the names and locations of all
banks in which Excell has accounts or safe deposit boxes, the designation of
each such account and safe deposit box, and the names of all persons authorized
to draw on or have access to each such account and safe deposit box. All
premiums and other payments due from Excell with respect to any such contracts
of insurance or indemnity have been paid, and Excell does not know of any fact,
act, or failure to act which has or might cause any such contract to be canceled
or terminated. All known claims for insurance or indemnity have been presented.
3.17 Employees. The Excell Disclosure Schedule sets forth a list of
---------
(a) the names, titles, salaries and all other compensation of all salaried
Excell employees (such term meaning permanent and temporary, full-time and part-
time employees) and (b) the wage rates for non-salaried Excell employees (by
classification). Any persons engaged by Excell as independent contractors,
rather than employees, have been properly classified as such and have been so
engaged in accordance with all applicable federal, foreign, state or local laws.
No senior management or technical employee or senior project manager of Excell
has stated to Excell that such employee intends to resign or retire as a result
of the transactions contemplated by this Agreement or otherwise within six
months after the Closing Date. Hours worked by and payments made to employees of
Excell have not been in violation of the Fair Labor Standards Act or any other
applicable federal, foreign, state or local laws
-17-
dealing with such matters. Excell is not and never has been engaged in any
dispute or litigation with an employee or former employee regarding matters
pertaining to intellectual property or assignment of inventions. Excell has
never been and, to the knowledge of Excell, is not now subject to a union
organizing effort. Excell does not have any written contract of employment or
other employment, severance or similar agreement with any of its employees or
any established policy or practice relating thereto, and all of its employees
are employees-at-will. Excell is not a party to any pending, or to Excell's
knowledge, threatened, labor dispute. Excell has complied in all material
respects with all applicable federal, state and local laws, ordinances, rules
and regulations and requirements relating to the employment of labor, including
but not limited to the provisions thereof relating to wages, hours, collective
bargaining and ensuring equality of opportunity for employment and advancement
of minorities and women. There are no claims pending, or, to the knowledge of
Excell, threatened to be brought, in any court or administrative agency by any
former or current Excell employees for compensation, pending severance benefits,
vacation time, vacation pay or pension benefits, or any other claim threatened
or pending in any court or administrative agency from any current or former
employee or any other person arising out of Excell's status as employer, whether
in the form of claims for employment discrimination, harassment, unfair labor
practices, grievances, wrongful discharge, or otherwise.
3.18 Employee Benefit Plans. Each Plan (as defined below) covering
----------------------
active, former, or retired employees of Excell is listed in Section 3.18 of the
Excell Disclosure Schedule. "Plan" means any employee benefit plan as defined
----
in ERISA (as defined below) and will also include any employment, severance or
similar contract, arrangement or policy and each plan or arrangement providing
for insurance coverage (including any self-insured arrangements), workers'
compensation, disability benefits, supplemental unemployment benefits, vacation
benefits, pension or retirement benefits or for deferred compensation, profit-
sharing, bonuses, stock options, stock appreciation rights or other forms of
incentive compensation or post-retirement insurance, compensation or benefits.
Excell has made available to Cambridge a copy of each Plan, and where
applicable, any related trust agreement, annuity, or insurance contract. All
annual reports (Form 5500) required to be filed with the Internal Revenue
Service have been properly filed on a timely basis, and Excell has provided
copies of the three most recently filed Forms 5500 for each applicable Plan. Any
Plan intended to be qualified under Section 401(a) of the Code has been
determined by the Internal Revenue Service to be so qualified and has remained
tax-qualified to this date and its related trust is tax-exempt and has been so
since its creation. No Plan is covered by Title IV of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), or Section 412 of the Code.
-----
No "prohibited transaction," as defined in ERISA Section 406 or Code Section
4975 has occurred with respect to any Plan, unless such a transaction was exempt
from such rules. Each Plan has been maintained and administered in material
compliance with its terms and with the requirements prescribed by any and all
statutes, orders, rules and regulations, including but not limited to ERISA and
the Code, which are applicable to such Plans. There are no pending or
anticipated claims against or otherwise involving any of the Plans and no suit,
action, or other litigation (excluding claims for benefits incurred in the
ordinary course of Plan activities) has been brought against or with respect to
any Plan. All contributions, reserves, or premium payments to the Plan, accrued
to the date hereof have been made or provided for. Neither Excell nor any entity
which is considered one employer with Excell under Section 414 of the Code or
Section 4001 of ERISA has ever maintained or contributed to or incurred or
expects to incur liability with respect to any Plan subject to Title IV of ERISA
or any "multi-employer plan" within the meaning of Section 4001(a)(3) of
-18-
ERISA. There are no restrictions on the rights of Excell to amend or terminate
any Plan without incurring any liability thereunder. Excell has not engaged in
or is a successor or parent corporation to an entity that has engaged in a
transaction described in ERISA Section 4069. There have been no amendments to,
written interpretation of, or announcement (whether or not written) by Excell
relating to, or change in employee participation or coverage under, any Plan.
Neither Excell nor any of its ERISA affiliates have any current or projected
liability in respect of post-employment or post-retirement welfare benefits for
retired or former employees of Excell other than health care continuation
benefits required to be provided under applicable law. No tax under Section
4980B or 4980D of the Code has been incurred in respect of any Plan that is a
group health plan, as defined in Section 5000(b)(1) of the Code.
3.19 Certain Agreements. Except as contemplated by this Agreement,
------------------
neither the execution and delivery of this Agreement and all other agreements
contemplated hereby, nor the consummation of the transactions contemplated
hereby will: (i) result in any payment by Excell (including, without limitation,
severance, unemployment compensation, parachute payment, bonus or otherwise)
becoming due to any director, employee, or independent contractor of Excell
under any Plan, agreement, or otherwise, (ii) increase any benefits otherwise
payable under any Plan or agreement, or (iii) result in the acceleration of the
time of payment or vesting of any such benefits.
3.20 Guarantees and Suretyships. Excell has no powers of attorney
--------------------------
outstanding (other than those issued in the ordinary course of business with
respect to Tax matters), and Excell has no material obligations or liabilities
(absolute or contingent) as guarantor, surety, cosigner, endorser, co-maker,
indemnitor, or otherwise respecting the obligations or liabilities of any
person, corporation, partnership, joint venture, association, organization, or
other entity.
3.21 Brokers and Finders. Neither Excell nor any of the Stockholders
-------------------
has retained any broker, finder, or investment banker in connection with this
Agreement or any of the transactions contemplated by this Agreement, nor does or
will Excell owe any fee or other amount to any broker, finder, or investment
banker in connection with this Agreement or the transactions contemplated by
this Agreement.
3.22 Certain Payments. Neither Excell, nor to the knowledge of Excell,
----------------
any person or other entity acting on behalf of Excell has, directly or
indirectly, on behalf of or with respect to Excell: (i) made an unreported
political contribution, (ii) made or received any payment which was not legal to
make or receive, (iii) engaged in any material transaction or made or received
any material payment which was not properly recorded on the books of Excell,
(iv) created or used any "off-book" bank or cash account or "slush fund," or (v)
engaged in any conduct constituting a violation of the Foreign Corrupt Practices
Act of 1977.
3.23 Environmental Matters. Excell has complied with all federal,
---------------------
state and local laws (including, without limitation, case law, rules,
regulations, orders, judgments, decrees, permits, licenses and governmental
approvals) which are intended to protect the environment and/or human health or
safety (collectively, "Environmental Laws") except for cases, if any, where a
------------------
failure to so comply would not have a Material Adverse Effect on Excell's
Business Condition; Excell has not handled, generated, used, stored,
transported or disposed of any material, substance or waste which is regulated
by Environmental Laws ("Hazardous Materials"), except for reasonable amounts of
-------------------
-19-
ordinary office and/or office-cleaning supplies which have been used in
compliance with Environmental Laws; (iii) to Excell's knowledge, there is not
now, nor has there ever been, any underground storage tank or asbestos on any
real property owned, operated or leased by Excell; (iv) Excell has not
conducted, nor is it aware of, any environmental investigations, studies,
audits, tests, reviews or analyses, the purpose of which was to discover,
identify, or otherwise characterize the condition of the soil, groundwater, air
or the presence of Hazardous Materials at any real property owned, operated or
leased by Excell; and (v) there are no "Environmental Liabilities". For
purposes of this Agreement, "Environmental Liabilities" are any claims, demands,
-------------------------
or liabilities under Environmental Laws which (i) arise out of or in any way
relate to Excell's operations or activities, or any real property at any time
owned, operated or leased by Excell, or any stockholder's use or ownership
thereof, whether vested or unvested, contingent or fixed, actual or potential,
and (ii) arise from or relate to actions occurring (including any failure to
act) or conditions existing on or before the Closing Date.
3.24 Enforceability of Contracts, etc.
---------------------------------
(a) No person, firm, corporation or entity who is a party to any
contract, agreement, commitment or plan to which Excell is a party has a valid
defense, on account of non-performance or malfeasance by Excell, which would
make any such contracts, agreement, commitment or plan not valid and binding
upon or enforceable against such parties in accordance with their terms, except
to the extent such enforceability may be subject to or limited by bankruptcy,
insolvency, reorganization, arrangement or similar laws affecting the rights of
creditors generally and usual equity principles.
(b) Neither Excell, nor, to the knowledge of Excell, any other
person, firm, corporation or entity, is in breach or violation of, or default
under, any material contract, agreement, arrangement, commitment or plan to
which Excell is a party, and no event or action has occurred, is pending, or, to
the knowledge of Excell, is threatened, which, after the giving of notice, or
the lapse of time, or otherwise, would constitute a breach or a default by
Excell or, to the knowledge of Excell, any other person, firm, corporation or
entity, under any material contract, agreement, arrangement, commitment or plan
to which Excell is a party.
3.25 Information Statement. The information regarding Excell
---------------------
(including, for purposes of this Section 3.25, information regarding Excell's
officers, directors and stockholders) included in the information to be sent to
the stockholders of Excell in connection with the consideration and approval of
the Merger and the other transactions contemplated by this Agreement (such
information statement as amended or supplemented is referred to herein as the
"Information Statement") will not, on the date the Information Statement (or any
----------------------
amendment thereof or supplement thereto) is first mailed to the stockholders of
Excell, at the time of the execution and delivery of any written consent of the
stockholders of Excell or the time of any stockholders meeting of Excell to
approve the Merger, and at the Effective Time, contain any statement regarding
Excell that, at such time and in light of the circumstances under which it will
be made, is false or misleading in any material respect, or will omit to state
any material fact regarding Excell necessary in order to make the statements
made therein regarding Excell not false or misleading in any material respect;
or omit to state any material fact regarding Excell necessary to correct any
statement regarding Excell in any earlier communication with respect to the
solicitation of the
-20-
stockholders of Excell that has become false or misleading in any material
respect. If at any time prior to the Effective Time any event relating to Excell
should be discovered by Excell which should be set forth in an amendment or a
supplement to the Information Statement, Excell will promptly inform Cambridge.
Notwithstanding the foregoing, Excell makes no representation or warranty with
respect to any information regarding Cambridge or Merger Sub which is contained
in any of the foregoing documents.
3.26 H-S-R Act. All entities included within the "person" of which the
---------
Xxxxxxx Affiliates (as defined below) are the "ultimate parent entities" of
Excell under the H-S-R Act (as defined below), do not collectively have
$10,000,000 or more of assets, as determined in accordance with the H-S-R Act.
As used in this paragraph, the "Xxxxxxx Affiliates" means Xxxxxxx X. Xxxxxxx,
------------------
Xx. Xxxxxxx'x spouse, any minor children of Xx. Xxxxxxx and any trust entity
organized for the benefit of a family member of Xx. Xxxxxxx in which Xx. Xxxxxxx
or any of such persons has any right of revocation or any reversionary interest.
Any shares of Cambridge Common Stock directly or indirectly beneficially
owned by the Xxxxxxx and Xxxxx Affiliates (as defined below) are held by them,
and the Cambridge Merger Shares to be acquired by them in connection with the
Merger will be acquired by them, solely for the purpose of investment as
determined in accordance with the H-S-R Act. As used in this paragraph, the
"Xxxxxxx and Xxxxx Affiliates" means Xxxxxxx X. Xxxxxxx, Xxxxx Xxxxx, their
----------------------------
spouses, minor children, and any trust entity organized for the benefit of any
of their family members in which Xx. Xxxxxxx, Xx. Xxxxx or any of such persons
retain any right of revocation or any reversionary interest. For purposes of
this Agreement, "solely for the purpose of investment" means that the person
holding or acquiring the Cambridge Merger Shares has no intention of
participating in the formulation, determination or direction of the basic
business decisions of Cambridge.
3.27 Year 2000. Any reprogramming required to permit the proper
---------
functioning, in and following the year 2000, of Excell's computer systems and
equipment containing embedded microchips used in Excell's business, and the
testing of all such systems and equipment, as so reprogrammed, has been
completed. The cost to the Company of such reprogramming and testing and the
reasonably foreseeable consequences of year 2000 to the Company (including,
without limitation, reprogramming errors, products or services provided by
Excell and the failure of others' systems or equipment) will not have a material
adverse effect on Excell's Business Condition.
3.28 Disclosure. Neither the representations or warranties made by
----------
Excell or the Stockholders in this Agreement, nor the Excell Disclosure Schedule
or any other certificate executed and delivered by Excell or the Stockholders
pursuant to this Agreement, when taken together, contains any untrue statement
of a material fact, or omits to state a material fact necessary to make the
statements or facts contained herein or therein not misleading in light of the
circumstances under which they were furnished.
3.29 Reliance. The foregoing representations and warranties are made
--------
by Excell and the Stockholders with the knowledge and expectation that Cambridge
and Merger Sub are placing reliance thereon.
-21-
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF THE STOCKHOLDERS
Each Stockholder severally represents and warrants to Cambridge and
Merger Sub as follows:
(a) Subject to applicable community property laws, such Excell
Stockholder is the lawful owner of the shares of Excell Common Stock to be
exchanged for the Cambridge Merger Shares pursuant to this Agreement and has,
and on the Closing Date will have, good and clear title to such shares of Excell
Common Stock, free of all Liens.
(b) Such Stockholder has, and on the Closing Date will have, full
legal right, power and authority to enter into this Agreement and to sell and
deliver the shares of Excell Common Stock owned by him, her or it in the manner
provided herein. Such Stockholder has duly and validly executed this Agreement
and has, or prior to the Closing, will have duly and validly executed and
delivered all other agreements contemplated hereby, and each of this Agreement
and such other agreements constitutes a valid, binding and enforceable
obligation of such Stockholder in accordance with its terms.
(c) The execution, delivery and performance of this Agreement and the
other agreements contemplated hereby by such Stockholder, and the consummation
of the transactions contemplated hereby or thereby, will not require, on the
part of such Stockholder, any consent, approval, authorization or other order
of, or any filing with, any Governmental Entity, or under any contract,
agreement or commitment to which such Stockholder is a party or by which such
Stockholder or property of such Stockholder is bound, and will not constitute a
violation on the part of such Stockholder of any law, administrative regulation
or ruling or court decree, or any contract, agreement or commitment, applicable
to such Stockholder or property of such Stockholder.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF CAMBRIDGE AND MERGER SUB
Except as set forth in the disclosure schedule of Cambridge dated as of
the date hereof and delivered herewith to Excell (the "Cambridge Disclosure
--------------------
Schedule") which identifies the section and subsection to which each disclosure
--------
therein relates (provided, however, that Cambridge will be deemed to have
adequately disclosed with respect to any section or subsection any matters that
are clearly described elsewhere in such document if the applicability of such
disclosure to such non-referenced sections or subsections is clearly apparent
and Cambridge has not intentionally omitted any required cross-references), and
whether or not the Cambridge Disclosure Schedule is referred to
-22-
in a specific section or subsection, Cambridge and Merger Sub jointly and
severally represent and warrant to Excell as follows:
5.1 Organization and Qualification. Cambridge is a corporation duly
------------------------------
organized, validly existing and in good standing under the laws of Delaware, has
all requisite corporate power and authority to own, lease and operate its
properties and to carry on its businesses as now being conducted, and is duly
qualified and in good standing to do business in each jurisdiction in which a
failure to so qualify would have a material adverse effect on the Business
Condition of Cambridge. Merger Sub is recently organized and has conducted no
business activities, other than as contemplated by this Agreement.
5.2 Capitalization. The authorized capital stock of Cambridge
--------------
consists of 2,000,000 shares of preferred stock, $.01 par value per share, of
which 100,000 shares have been designated Series A Participating Preferred Stock
and of which no shares are issued or outstanding or held in Cambridge's
treasury, and 250,000,000 shares of Cambridge Common Stock, of which, as of
August 26, 1998:
(a) 56,901,399 shares were validly issued and outstanding, fully paid and
nonassessable and
(b) 25,100,000 shares were reserved for issuance pursuant to Cambridge's stock
option and stock purchase plans for its employees and directors. Except for
options and rights relating to shares reserved for issuance pursuant to
Cambridge's stock option and stock purchase plans for its employees and
directors and rights to purchase Series A Participating Preferred Stock pursuant
to Cambridge's stockholder rights plan, and except as set forth in Section 5.2
of the Cambridge Disclosure Schedule or the Reports (as defined in Section 5.5),
there are no options, warrants or other rights, agreements or commitments
(contingent or otherwise) obligating Cambridge to issue shares of its capital
stock or any other securities convertible into or evidencing the right to
subscribe to shares of its capital stock.
5.3 Authority Relative to this Agreement. The execution, delivery
------------------------------------
and performance of this Agreement and all other agreements contemplated hereby
by Cambridge and Merger Sub have been duly authorized by all necessary action of
the Boards of Directors and stockholders of Cambridge and Merger Sub.
Certified copies of the resolutions adopted by the Boards of Directors of
Cambridge and Merger Sub and Cambridge as sole stockholder of Merger Sub
approving this Agreement, all other agreements contemplated hereby and the
Merger have been or will be provided to Excell. Each of Cambridge and Merger
Sub has duly and validly executed and delivered this Agreement and has, or prior
to Closing, will have duly and validly executed and delivered all other
agreements contemplated hereby to be executed by it, and each of this Agreement
and such other agreements constitutes a valid, binding and enforceable
obligation of each of Cambridge and Merger Sub in accordance with its terms.
5.4 Non-Contravention. Assuming the accuracy of the
-----------------
representations and warranties of Excell and the Stockholders contained in the
Agreement and the other agreements contemplated hereby that are relevant to the
following specific provisions, neither the execution, delivery or performance of
this Agreement and all other agreements contemplated hereby by Cambridge and
Merger Sub, nor the consummation of the Merger or any other transaction
described herein, does or will, after the giving of notice, or the lapse of
time, or otherwise, conflict with, result in a breach of, or constitute a
default under, the Charter Documents of Cambridge or Merger Sub or any federal,
-23-
foreign, state or local court or administrative order or process, statute, law,
ordinance, rule or regulation, or any contract, agreement or commitment to which
Cambridge is a party, or under which Cambridge is obligated, or by which
Cambridge or any of the rights, properties or assets of Cambridge are subject or
bound; result in the creation of any Lien upon, or otherwise adversely affect,
any of the rights, properties or assets of Cambridge; terminate, amend or
modify, or give any party the right to terminate, amend, modify, abandon or
refuse to perform or comply with, any contract, agreement or commitment to which
Cambridge is a party, or under which Cambridge is obligated, or by which
Cambridge or any of the rights, properties or assets of Cambridge are subject or
bound; or accelerate, postpone or modify, or give any party the right to
accelerate, postpone or modify, the time within which, or the terms and
conditions under which, any liabilities, duties or obligations are to be
satisfied or performed, or any rights or benefits are to be received, under any
contract, agreement or commitment to which Cambridge is a party, or under which
Cambridge may be obligated, or by which Cambridge or any of the rights,
properties or assets of Cambridge are subject or bound, other than any of the
foregoing which would not have, individually or in the aggregate, a material
adverse effect on Business Condition of Cambridge.
-24-
5.5 Reports and Financial Statements. Cambridge has previously
--------------------------------
furnished to Excell true and correct copies of its (i) Form 10-K for the period
ended December 31, 1997, (ii) its Quarterly Report on Form 10-Q for the period
ended June 30, 1998 (the "Recent 10-Q"), (iii) all other reports filed by it
-----------
with the Securities and Exchange Commission (the "Commission") under the
----------
Securities Exchange Act of 1934, as amended (the "Exchange Act") since January
1, 1998 and (iv) Cambridge hereby agrees to furnish to Excell true and correct
copies of all reports filed by it with the Commission after the date hereof
prior to the Closing all in the form (including exhibits) so filed
(collectively, the "Reports"). As of their respective dates, the Reports
-------
complied or will comply in all material respects with the then applicable
published rules and regulations of the Commission with respect thereto at the
date of their issuance and did not or will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. As of the date hereof, no additional
filings or amendments to previously filed Reports are required pursuant to such
rules and regulations. Each of the audited consolidated financial statements
and unaudited interim financial statements included in Cambridge's Reports has
been prepared in accordance with generally accepted accounting principles
applied on a consistent basis (except as may be indicated therein or in the
notes thereto) and fairly presents the financial position of the entity or
entities to which it relates as at its date or the results of operations,
stockholders' equity or cash flows of such entity or entities (subject, in the
case of unaudited statements, to the absence of footnote disclosure and in the
case of unaudited interim statements to year-end adjustments, which will not be
material either individually or in the aggregate, and except as described in
Section 5.5 of the Cambridge Disclosure Schedule). As of the date hereof,
Cambridge meets the "Registrant Requirements" of the General Instructions of
Form S-3 under the Securities Act.
5.6 Validity Cambridge Merger Shares. The Cambridge Merger
-----------------------------------
Shares to be issued in the Merger will, when issued, be, validly issued, fully
paid and nonassessable.
5.7 Consents and Approvals of Governmental Authorities. Assuming the
--------------------------------------------------
accuracy of the representations and warranties of Excell and the Stockholders
contained in the Agreement and the other agreements contemplated hereby that are
relevant to the following specific provisions, except for (a) the requirements
of state securities (or "Blue Sky") laws, (b) the filing and recording of the
Merger Documents as provided by the WBCA, (c) the filing of appropriate
documents with the Nasdaq Stock Market and (d) the filing of a Form D and a Form
8-K with the Commission, if applicable, no consent, approval or authorization
of, or declaration, filing or registration with, any Governmental Entity is
required to be made or obtained by Cambridge or Merger Sub in connection with
the execution, delivery and performance of this Agreement or the consummation of
the transactions contemplated hereby.
5.8 Absence of Certain Changes or Events. Since June 30, 1998,
------------------------------------
there has not been any material adverse change in the Business Condition of
Cambridge. Cambridge is not actively considering nor currently participating in
negotiations or discussions regarding any sale of all or a significant part of
Cambridge's business or assets in a merger, consolidation or other type of
business combination.
5.9 Information Statement. The information regarding Cambridge
---------------------
(including, for purposes of this Section 5.9, information regarding Cambridge's
officers, directors and
-25-
stockholders) included in the Information Statement will not, on the date the
Information Statement (or any amendment thereof or supplement thereto) is first
mailed to the stockholders of Excell, at the time of the execution and delivery
of any written consent of the stockholders of Excell or the time of any
stockholders meeting of Excell to approve the Merger, and at the Effective Time,
contain any statement regarding Cambridge that, at such time and in light of the
circumstances under which it will be made, is false or misleading in any
material respect, or will omit to state any material fact regarding Cambridge
necessary in order to make the statements made therein regarding Cambridge not
false or misleading in any material respect; or omit to state any material fact
regarding Cambridge necessary to correct any statement regarding Cambridge in
any earlier communication with respect to the solicitation of the stockholders
of Cambridge that has become false or misleading in any material respect. If at
any time prior to the Effective Time any event relating to Cambridge should be
discovered by Cambridge which should be set forth in an amendment or a
supplement to the Information Statement, Cambridge will promptly inform Excell.
Notwithstanding the foregoing, Cambridge makes no representation or warranty
with respect to any information regarding Excell which is contained in any of
the foregoing documents.
5.10 Disclosure. Neither the representations or warranties made by
----------
Cambridge in this Agreement, nor the Cambridge Disclosure Schedule or any other
certificate executed and delivered by Cambridge pursuant to this Agreement, when
taken together and with knowledge of the contents of the Reports, contains any
untrue statement of a material fact, or omits to state a material fact necessary
to make the statements or facts contained herein or therein not misleading in
light of the circumstances under which they were furnished.
5.11 Reliance. The foregoing representations and warranties are made
--------
by Cambridge with the knowledge and expectation that Excell and the Stockholders
are placing reliance thereon.
ARTICLE VI
COVENANTS OF EXCELL
During the period from the date of this Agreement (except as
otherwise indicated) and continuing until the earlier of the termination of this
Agreement or the Effective Time, each of Excell and the Stockholders agree
(except as expressly contemplated by this Agreement or otherwise permitted with
Cambridge's prior written consent):
6.1 Conduct of Business in Ordinary Course. Except as approved in
--------------------------------------
writing by Cambridge, Excell will carry on its business in the ordinary course
in substantially the same manner as heretofore conducted and, to the extent
consistent with such business, use all reasonable best efforts consistent with
past practice and policies to preserve intact its present business organization,
keep available the services of its present officers, consultants and employees
and preserve its relationships with customers, suppliers and distributors and
others having business dealings with it. Excell will confer on a regular and
frequent basis with representatives of Cambridge to report operational matters
of a material nature and to report the general status of the ongoing operations
of
-26-
the business of Excell. The foregoing notwithstanding, Excell will not, except
as approved in writing by Cambridge:
(a) other than in the ordinary course of business consistent with
prior practice, enter into any material commitment or transaction, including but
not limited to any purchase of assets (other than raw materials, supplies or
cash equivalents) for a purchase price in excess of $25,000;
(b) grant any bonus, severance or termination pay to any officer,
director, independent contractor or employee of Excell, except pursuant to the
Excell Phantom Stock Plan, as approved by Cambridge;
(c) enter into or amend any agreements pursuant to which any other
party is granted support, service, marketing or publishing rights, other than in
the ordinary course of business consistent with prior practice, or is granted
distribution rights of any type or scope with respect to any products of Excell;
(d) other than in the ordinary course of business consistent with prior
practice, enter into or terminate any contracts, arrangements, plans,
agreements, leases, licenses, franchises, permits, indentures, authorizations,
instruments, or commitments, or amend or otherwise change in any material
respect the terms thereof in a manner adverse to Excell;
(e) commence a lawsuit other than: (i) for the routine collection of
bills, (ii) in such cases where Excell in good faith determines that failure to
commence suit would result in a material impairment of a valuable aspect of
Excell's business provided that Excell consults with Cambridge prior to filing
such suit, or (iii) for a breach of this Agreement or any agreement related
hereto;
(f) modify in any material respect existing discounts or other terms
and conditions with dealers, distributors and other resellers of Excell's
products or services in a manner adverse to Excell;
(g) accelerate the vesting or otherwise modify any Excell Option,
restricted stock, or other outstanding rights or other securities, other than
changes to the Excell Phantom Stock Plan, as approved by Cambridge;
(h) take any action which would make any representation or warranty in
this Agreement untrue or incorrect, as if made as of such time; or
(i) agree in writing or otherwise to take any of the foregoing
actions.
6.2 Dividends, Issuance of, or Changes in Securities. Excell will
------------------------------------------------
not: (i) declare or pay any dividends on or make other distributions to its
stockholders (whether in cash, shares or property), (ii) issue, deliver, sell,
or authorize, propose, or agree to, or commit to the issuance, delivery, or sale
of any shares of its capital stock of any class, any Excell Voting Debt or any
securities convertible into its capital stock, any options, warrants, calls,
conversion rights, commitments, agreements, contracts, understandings,
restrictions, arrangements or rights of any character obligating Excell to issue
any such shares, Excell Voting Debt or other convertible
-27-
securities except as any of the foregoing is required by outstanding Excell
Options; (iii) split, combine or reclassify any of its capital stock or issue or
authorize the issuance of any other securities in respect of, in lieu of or in
substitution for shares of capital stock of Excell, (iv) repurchase or otherwise
acquire, directly or indirectly, any shares of its capital stock or options or
warrants related thereto, or (v) propose any of the foregoing.
6.3 Governing Documents. Excell will not amend its Charter Documents.
-------------------
6.4 No Acquisitions. Excell will not authorize, recommend, propose
---------------
or announce an intention to authorize, recommend or propose, or enter into a
letter of intent (whether or not binding), an agreement in principle or an
agreement with respect to any merger, consolidation or business combination
(other than the Merger), any acquisition of assets or securities.
6.5 No Dispositions. Excell will not sell, lease, license, transfer,
---------------
mortgage, encumber or otherwise dispose of any of its material assets or cancel,
release, or assign any material indebtedness or claim, except in the ordinary
course of business consistent with prior practice.
6.6 Indebtedness. Excell will not incur any indebtedness for
------------
borrowed money by way of direct loan, sale of debt securities, purchase money
obligation, conditional sale, guarantee, or otherwise.
6.7 Compensation. Excell will not adopt or amend, or modify in any
------------
material respect, any Plan or pay any pension or retirement allowance not
required by any existing Plan. Excell will not enter into or modify any
employment or severance contracts, increase the salaries, wage rates or fringe
benefits of its officers, directors or employees or pay bonuses or other
remuneration except for current salaries, severance and other remuneration for
which Excell is obligated under arrangements existing prior to the Unaudited
Balance Sheet Date to which Excell is a party and which have been disclosed in
the Excell Disclosure Schedule.
6.8 Claims. Excell will not settle any claim, action or proceeding,
------
except in the ordinary course of business consistent with prior practice.
6.9 Access to Properties and Records. Subject to contractual and
--------------------------------
other obligations, throughout the period between the date of this Agreement and
the Closing, Excell will give Cambridge and its representatives full access, at
a place reasonably acceptable to Excell, during reasonable business hours and
following reasonable notice but in such a manner as not unduly to disrupt the
business of Excell, to its senior management, senior technical personnel,
premises, properties, contracts, commitments, books, records and affairs, and
will provide Cambridge with such financial, technical and operating data and
other information pertaining to its business as Cambridge may request. With
Excell's prior consent, which will not be unreasonably withheld, Cambridge will
be entitled in conjunction with Excell personnel to make appropriate inquiries
of third parties in the course of its investigation.
6.10 Breach of Representations and Warranties. Excell will not take
----------------------------------------
any action that would cause or constitute a breach of any of the representations
and warranties set forth in Article III or that would cause any of such
representations and warranties to be inaccurate in any material
-28-
respect or that would constitute a breach of any of its other obligations under
this Agreement. In the event of, and promptly after becoming aware of, the
occurrence of or the pending or threatened occurrence of any event that would
cause or constitute such a breach or inaccuracy, Excell will give detailed
notice thereof to Cambridge and will use its reasonable best efforts to prevent
or remedy promptly such breach or inaccuracy.
6.11 Consents. Excell will promptly apply for or otherwise seek and
--------
use reasonable best efforts to obtain, all consents and approvals, and make all
filings, required with respect to the consummation of the Merger.
6.12 Tax Returns. Excell will promptly provide or make available to
-----------
Cambridge copies of all tax returns, reports and information statements that
have been filed or are filed prior to the Closing Date.
6.13 Stockholder Approval. Each of the Stockholders agrees to vote all
--------------------
of such Stockholder's shares of Excell Common Stock for the approval of this
Agreement and the appropriate Merger Documents as required by the WBCA.
6.14 Preparation of Disclosure and Solicitation Materials. Excell will
----------------------------------------------------
promptly submit the Information Statement to its stockholders. Excell will
promptly set a record date, give notice of a special meeting, solicit consents
and/or give notices to holders of Dissenting Shares so as to facilitate the
Closing of the Merger as of the earliest practicable date.
6.15 Exclusivity; Acquisition Proposals. Unless and until this
----------------------------------
Agreement will have been terminated by either party pursuant to Article XI
hereof and thereafter subject to Section 11.5, neither Excell nor any of the
Stockholders will (and each will use its reasonable best efforts to ensure that
none of its officers, directors, agents, representatives or affiliates) take or
cause or permit any person to take, directly or indirectly, any of the following
actions with any party other than Cambridge and its designees: (i) solicit,
encourage, initiate or participate in any negotiations, inquiries, or
discussions with respect to any offer or proposal to acquire all or any
significant part of Excell's business, assets or capital stock, whether by
merger, consolidation, other business combination, purchase of assets, tender or
exchange offer or otherwise (each of the foregoing, an "Acquisition
-----------
Transaction"), (ii) disclose, in connection with an Acquisition Transaction, any
-----------
information not customarily disclosed to any person other than Cambridge or its
representatives concerning Excell's business or properties or afford to any
person other than Cambridge or its representatives access to its properties,
books, or records, except in the ordinary course of business consistent with
prior practice and as required by law or pursuant to a governmental request for
information, (iii) enter into or execute any agreement relating to an
Acquisition Transaction, or (iv) make or authorize any public statement,
recommendation or solicitation in support of any Acquisition Transaction or any
offer or proposal relating to an Acquisition Transaction other than with respect
to the Merger. In the event that Excell is contacted by any third party
expressing an interest in discussing an Acquisition Transaction, Excell will
promptly notify Cambridge of such contact and the identity of the party so
contacting Excell.
6.16 Notice of Events. Throughout the period between the date of this
----------------
Agreement and the Closing, Excell will promptly advise and consult with
Cambridge regarding any and all material
-29-
events and developments concerning its financial position, results of
operations, assets, liabilities or business or any of the items or matters
concerning Excell covered by the representations, warranties and covenants of
Excell and the Stockholders contained in this Agreement.
6.17 Reasonable Best Efforts. Excell and each of the Stockholders will
-----------------------
use their reasonable best efforts to effectuate the transactions contemplated
hereby and to fulfill and cause to be fulfilled the conditions to Closing under
this Agreement.
6.18 Insurance. Excell will use its reasonable best efforts to
---------
maintain in force at the Effective Time policies of insurance of the same
character and coverage as those described in the Excell Disclosure Schedule, and
Excell will promptly notify Cambridge in writing of any changes in such
insurance coverage occurring prior to the Effective Time.
ARTICLE VII
COVENANTS OF CAMBRIDGE AND MERGER SUB
During the period from the date of this Agreement and continuing until
the earlier of the termination of this Agreement or the Effective Time (or later
where so indicated), Cambridge and Merger Sub agree (except as expressly
contemplated by this Agreement or with Excell's prior written consent):
7.1 Breach of Representations and Warranties. Neither Cambridge nor
----------------------------------------
Merger Sub will take any action which would cause or constitute a breach of any
of the representations and warranties set forth in Article V or which would
cause any of such representations and warranties to be inaccurate in any
material respect. In the event of, and promptly after becoming aware of, the
occurrence of or the pending or threatened occurrence of any event which would
cause or constitute such a breach or inaccuracy, Cambridge will give detailed
notice thereof to Excell and will use its reasonable best efforts to prevent or
remedy promptly such breach or inaccuracy.
7.2 Additional Information; Access. Cambridge will provide Excell and
------------------------------
its stockholders with the information relating to Cambridge referred to in
Section 5.5 and the information relating to Cambridge to be included in the
Information Statement. In addition, Cambridge will afford to Excell and to its
counsel and to the persons expected to become shareholders of Cambridge pursuant
to the Merger access throughout the period prior to the Effective Time to its
senior management and all other information concerning Cambridge as Excell or
such stockholder may reasonably request. Such stockholders will also be
afforded the opportunity to ask questions and to receive accurate and complete
answers from Cambridge concerning the terms and conditions of the Merger and the
issuance of the Cambridge Merger Shares pursuant thereto.
7.3 Consents. Cambridge will promptly apply for or otherwise seek,
--------
and use its reasonable best efforts to obtain, all consents and approvals, and
make filings, required with respect to the consummation of the Merger.
-30-
7.4 Reasonable Best Efforts. Each of Cambridge and Merger Sub will
-----------------------
use its reasonable best efforts to effectuate the transactions contemplated
hereby and to fulfill and cause to be fulfilled the conditions to Closing under
this Agreement.
7.5 Officers and Directors. Cambridge agrees that all rights to
----------------------
indemnification existing on the date hereof in favor of the present or former
officers and directors of Excell with respect to actions taken in their
capacities as directors or officers of Excell prior to the Effective Time as
provided in the Charter Documents of Excell and any applicable indemnification
agreements (copies of which have been provided to Cambridge) will survive the
Merger and continue in full force and effect following the Effective Time and
the obligations related thereto will be assumed by Cambridge. Notwithstanding
the foregoing the provisions of such Charter Documents or agreements will have
no effect on the obligations of any stockholders of Excell pursuant to Article X
of this Agreement or the Escrow Agreement.
7.6 Nasdaq National Market Listing. Cambridge will prepare and file
------------------------------
with Nasdaq an additional listing application and use its reasonable best
efforts to have the Cambridge Merger Shares be accepted by Nasdaq for listing on
the Nasdaq National Market as soon as practicable.
7.7 Notice of Events. Throughout the period between the date of this
----------------
Agreement and the Closing, Cambridge will promptly advise and consult with
Excell regarding any and all material adverse change to the representations,
warranties and covenants of Cambridge and Merger Sub contained in this
Agreement.
7.8 Third Party Beneficiaries. Sections 7.5, 7.6, 7.9, 7.10 and 7.11
-------------------------
will survive the consummation of the Merger, are intended to benefit the
stockholders of Excell that receive Cambridge Merger Shares (the "New Cambridge
-------------
Stockholders"), will be binding on Cambridge and its successors and assigns, and
------------
will be enforceable by the officers and directors of Excell and the New
Cambridge Stockholders.
7.9 Final S Corporation Return. Cambridge will cause the Surviving
--------------------------
Corporation to retain and pay Xxxxx Xxxxx, CPAs, to prepare and file, in
consultation with Cambridge's independent accountants, Excell's final S
Corporation Tax Returns.
7.10 Excell Phantom Stock Plan. Attached as Exhibit 7.10 hereto is a
------------------------- ------------
schedule showing the dollar amounts to be paid to certain participants in the
Excell Phantom Stock Plan (the "Phantom Plan"). On or before September 21, 1998,
------------
and subject to no conditions,, Cambridge will pay to each such holder by check
the amount specified in such schedule under the heading "Cash Payout September
1998." On August 31, 1999, and subject to no conditions (including any condition
concerning employment), Cambridge will pay to each holder by check the amount
specified in such schedule under the heading "Cash Payout August 31, 1999." It
shall be a condition precedent to the right of each participant to receive the
foregoing payment that such participant execute the non-competition agreement
specified in Section 11.2 of the Phantom Plan. All payments made pursuant to
this Section 7.10 shall be reduced by all applicable federal and state
withholding Tax obligations imposed with respect to such payments. If Cambridge
is required to pay any amounts to such participants in the aggregate in excess
of $6.7 million, then such excess shall be an Indemnifiable Amount reimbursable
to Cambridge pursuant to the provisions of Article X,
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without regard to the Threshold Amount set forth therein (or included for
purposes of determining if the Threshold Amount has been reached). In addition
to the foregoing, the participants in the Phantom Plan who listed in the first
section of such schedule have agreed to release their interest in the Phantom
Plan, and such releases will be delivered to Cambridge at the Closing.
7.11 D&O Coverage Tail. Cambridge will cause Excell to maintain for a
-----------------
period of three years from the Effective Time continued "tail" coverage under
Excell's directors and officers errors and omissions insurance covering the
officers and directors who served as such immediately prior to the Effective
Time provided that such coverage shall be at the expense of Cambridge but only
up to the specific amount set forth in Section 7.11 of the Excell Disclosure
Schedule, with any excess being payable by the respective insured's.
ARTICLE VIII
ADDITIONAL AGREEMENTS
In addition to the foregoing, Cambridge, Merger Sub, Excell and the
Stockholders, as applicable, each agree to take the following actions after the
execution of this Agreement.
8.1 Investment Agreements. All resales of Cambridge Common Shares by
---------------------
the New Cambridge Stockholders will be subject to the restrictions imposed by
the investment agreements (the "Investment Agreements") in the form attached as
---------------------
Exhibit 8.1 and the registration rights agreement (the "Registration Rights
----------- -------------------
Agreement") in the form attached as Exhibit 8.2, each of which will be entered
--------- -----------
into by each New Cambridge Stockholder and Cambridge. Cambridge will be
entitled to place the legends as referred to in the form of Investment Agreement
on each certificate evidencing any Cambridge Common Shares to be received by New
Cambridge Stockholders pursuant to the terms of this Agreement and to issue
appropriate stop transfer instructions to the transfer agent for Cambridge
Common Shares consistent with the terms of the Investment Agreements.
8.2 Legal Conditions to the Merger. Each of Cambridge, Merger Sub,
------------------------------
Excell and the Stockholders will use all reasonable best efforts to take actions
necessary to comply promptly with all legal requirements which may be imposed on
it with respect to the Merger. Each of Cambridge, Merger Sub, Excell and the
Stockholders will use all reasonable best efforts to take all actions to obtain
(and to cooperate with the other parties in obtaining) any consent required to
be obtained or made by Excell, Merger Sub, or Cambridge in connection with the
Merger, or the taking of any action contemplated thereby or by this Agreement.
8.3 Employee Benefits. Nothing contained herein will be considered as
-----------------
requiring Excell or Cambridge to continue any specific plan or benefit, or to
confer upon any employee, beneficiary, dependent, legal representative or
collective bargaining agent of such employee any right or remedy of any nature
or kind whatsoever under or by reason of this Agreement, including without
limitation any right to employment or to continued employment for any specified
period, at any specified location or under any specified job category, except as
specifically provided for in an offer letter or
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other agreement of employment. It is specifically understood that continued
employment with Excell or employment with Cambridge is not offered or implied
for any other employees of Excell and any continuation of employment with Excell
after the Closing will be at will except as specifically provided otherwise in
an offer letter or other agreement of employment.
8.4 Expenses. Whether or not the Merger is consummated, all costs and
--------
expenses incurred in connection with this Agreement and the transactions
contemplated hereby, including investment banking, legal and accounting
expenses, will be paid by the party incurring such expense; provided, however,
that any expenses incurred by Excell after August 4, 1998 shall be borne or
reimbursed by the Stockholders (without regard to Section 10.4); provided,
further, that Excell will estimate and itemize any such investment banking,
legal and accounting expenses of Excell prior to Closing and provide Cambridge
with a copy of such estimate at the Closing; and provided, further, that the
provisions of this Section 8.4 shall not be construed to relieve a party from
liability resulting from such party's breach of this Agreement.
8.5 Additional Agreements. In case at any time after the Effective
---------------------
Time any further action is reasonably necessary or desirable to carry out the
purposes of this Agreement or to vest the Surviving Corporation with full title
to all properties, assets, rights, approvals, immunities and franchises of
Excell, the proper officers and directors of each corporation which is a party
to this Agreement will take all such necessary action. Without limiting the
foregoing, on or prior to the Closing Date, Excell will deliver to Cambridge a
properly executed statement satisfying the requirements of Treasury Regulation
Sections 1.897-2(h) and 1.1445-2(c)(3) in a form reasonably acceptable to
Cambridge.
8.6 Public Announcements. Neither Cambridge, Excell nor any of the
--------------------
Stockholders will disseminate any press release or other announcement concerning
this Agreement or the transactions contemplated herein to any third party
(except to the directors, officers and employees of the parties to this
Agreement whose direct involvement is necessary for the consummation of the
transactions contemplated under this Agreement, to the attorneys, advisors and
accountants of the parties hereto, or except as Cambridge determines in good
faith to be required by applicable law after consultation with Excell) without
the prior written agreement of Cambridge and Excell.
8.7 Confidentiality. Excell and Cambridge, through its agent
---------------
Xxxxxxxxx Associates, have entered into a Confidentiality and Nondisclosure
Agreement dated August 24, 1998 concerning each party's obligations to protect
the confidential information of the other party. Excell and Cambridge each
hereby affirm each of their obligations under such agreement. If this Agreement
is terminated in accordance with Article XI hereof, Cambridge will, and will
cause its accountants, counsel and other representatives to deliver to Excell
all documents and other material, and all copies thereof, obtained by Cambridge
or on its behalf from Excell in connection with this Agreement, whether so
obtained before or after the execution hereof, and will not disclose any such
information or documents to any third parties or make any use of such. If this
Agreement is terminated in accordance with Article XI hereof, Excell will, and
will cause its accountants, counsel and other representatives to, deliver to
Cambridge all documents and other material, and all copies thereof, obtained by
Excell or on its behalf or by a Stockholder from Cambridge in connection with
this Agreement, whether so obtained before or after the execution hereof, and
will not disclose any such information or documents to any third parties or make
any use of such.
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8.8 Pooling.
-------
(a) Cambridge, the Merger Sub, Excell and each of Stockholders will
use all reasonable best efforts, will cooperate fully and will take all actions
as are reasonably necessary to allow the Merger and other transactions
contemplated by this Agreement to be accounted for as a "pooling of interests"
in accordance with United States generally accepted accounting principles which
will be acceptable to the Commission.
(b) Excell has delivered to Cambridge prior to the date of this
Agreement a letter from its counsel that identifies all persons who such counsel
believes may be "affiliates" of Excell, as such term is used in Rule 145 under
the Securities Act and applicable accounting pronouncements of the Commission
(each such person, an "Excell Affiliate"). Each such Excell Affiliate has
----------------
executed and delivered to Cambridge a written agreement (an "Affiliate
---------
Agreement") in the form of Exhibit 8.8 hereto to the effect that such Excell
--------- -----------
Affiliate (i) has not made and will not make any disposition of any shares of
Excell Common Stock or other securities of Excell in the 30-day period prior to
the Effective Time, and (ii) will not make any disposition of any of the
Cambridge Merger Shares to be received by such person after the Effective Time
until Cambridge shall have publicly released a report including the combined
financial results of Cambridge and Excell for a period of at least 30 days of
combined operations of Cambridge and Excell.
8.9 Xxxx-Xxxxx-Xxxxxx Filing. If and to the extent applicable,
------------------------
Cambridge, Excell and each Stockholder agree to file, and to cause any other
person obligated to do so as a result of such person's stock holdings in
Cambridge or Excell, a Notification and Report Form in accordance with the
notification requirements of the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976 and the rules and regulations thereunder (collectively, the "H-S-R Act")
---------
with the Antitrust Division of the United States Department of Justice and the
Federal Trade Commission and to use its and their reasonable best efforts to
achieve the prompt termination or expiration of the waiting period or any
extension thereof provided for under the HSR Act as a prerequisite to the
consummation of the transactions provided for herein. Based, in part, on
questionnaires submitted to certain stockholders of Excell and the
representations contained herein, Cambridge and Excell have determined that a
Notification and Report Form in not required in connection with the transactions
contemplated by this Agreement.
8.10 Tax Matters. In the event that it is determined by a finding or
-----------
order in connection with any governmental or judicial audit or proceeding,
including any settlement of such a proceeding to which any of the parties hereto
are parties that Excell's S Corporation election pursuant to Section 1362 of the
Code was not validly in effect for any period after such election was
purportedly made, then the Stockholders shall promptly remit to Cambridge in
cash any federal, state and/or local Tax liability (including any penalties,
additions to Tax or interest assessed with respect thereto) of Excell in
connection with Taxes that are imposed on the Surviving Corporation or Cambridge
as a result of such invalid election. Such payment shall be made within 15 days
after the date such tax liability has been so determined. The obligations to
remit such cash to Cambridge as described in this Section 8.10 shall be treated
as separate from the Stockholders' other indemnification obligations hereunder
and in addition to amounts that may be owed to Cambridge under the Escrow
Agreement. Notwithstanding anything to the contrary contained in this
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Agreement or in the Escrow Agreement, the provisions of this Section 8.10 shall
survive the termination of the Escrow Agreement and shall remain in effect as
personal obligations of the Stockholders until the applicable statutes of
limitations shall have expired. The procedural aspects of all such matters shall
be conducted, as near as practicable, in accordance with Section 10.3. No Tax
Return of Excell pertaining to a period prior to the Closing Date may be amended
without prior notice to and the consent of the Indemnification Representative
(appointed pursuant to the Escrow Agreement), which consent shall not be
unreasonably withheld.
ARTICLE IX
CONDITIONS PRECEDENT
9.1 Conditions to Each Party's Obligation to Effect the Merger. The
----------------------------------------------------------
respective obligations of each party to effect the Merger will be subject to the
satisfaction prior to the Closing Date of the following conditions:
(a) Governmental Approvals. Other than the filing of the Merger
----------------------
Documents with the Secretary of State of Washington, all statutory requirements
and all Consents of Governmental Entities legally required for the consummation
of the Merger and the transactions contemplated by this Agreement will have been
filed, occurred, or been obtained, other than such Consents for which the
failure to obtain would not have a material adverse effect on the consummation
of the Merger or the other transactions contemplated hereby or on the Business
Condition of Cambridge or Excell. If and to the extent applicable, the filing
and waiting period requirements under the H-S-R Act will have been complied with
and will have expired or terminated.
(b) No Restraints. No statute, rule or regulation, and no final and
-------------
nonappealable order, decree or injunction will have been enacted, entered,
promulgated or enforced by any court or Governmental Entity of competent
jurisdiction which enjoins or prohibits the consummation of the Merger.
(c) Tax-Free Reorganization. Excell shall have received a written
-----------------------
opinion from Xxxxxx & Xxxx, PC to the effect that the Merger should constitute a
reorganization within the meaning of Section 368 of the Code. In preparing such
tax opinion, counsel may rely on reasonable assumptions and reasonable
representations relating thereto. This provision may be waived by Excell in its
sole discretion.
9.2 Conditions of Obligations of Cambridge and Merger Sub. The
-----------------------------------------------------
obligations of Cambridge and Merger Sub to effect the Merger are subject to the
satisfaction of the following conditions unless waived by Cambridge and Merger
Sub:
(a) Representations and Warranties of Excell and the Stockholders.
-------------------------------------------------------------
The representations and warranties of Excell and the Stockholders set forth in
this Agreement will be true and correct in all material respects as of the date
of this Agreement and as of the Closing Date
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as though made on and as of the Closing Date, except (i) as otherwise
contemplated by this Agreement, (ii) as a result of actions taken or not taken
at the direction of or after consultation with and written concurrence of
Cambridge and (iii) for representations and warranties specifically limited to
an earlier date(s). Cambridge will have received a certificate signed by a duly
authorized officer of Excell to such effect on the Closing Date.
(b) Performance of Obligations of Excell and the Stockholders. Excell
---------------------------------------------------------
and the Stockholders will have performed in all material respects all agreements
and covenants required to be performed by them under this Agreement prior to the
Closing Date except (i) as otherwise contemplated or permitted by this Agreement
and (ii) as a result of actions taken or not taken at the direction of or after
consultation with and written concurrence of Cambridge, and Cambridge will have
received a certificate signed by each of the Stockholders and by a duly
authorized officer of Excell to such effect on the Closing Date.
(c) Investment and Escrow Agreements. Cambridge will have received
--------------------------------
from stockholders of Excell constituting at least 100% of the Outstanding
Excell Shares duly executed Investment Agreements and Escrow Agreements.
(d) Employment and Noncompetition Agreements. The individuals
----------------------------------------
previously agreed to by Cambridge and Excell will have executed employment
and/or non-competition agreements in the form previously provided by Cambridge
to Excell.
(e) Legal Action. There will not be overtly threatened or pending any
------------
action, proceeding or other application before any court or Governmental Entity
brought by any person or Governmental Entity: (i) challenging or seeking to
restrain or prohibit the consummation of the transactions contemplated by this
Agreement, or seeking to obtain any material damages from Cambridge, Merger Sub
or Excell as a result of such transactions; or (ii) seeking to prohibit or
impose any limitations on Cambridge's ownership or operation of all or any
portion of Excell's business or assets, or to compel Cambridge to dispose of or
hold separate all or any portion of its or Excell's business or assets as a
result of the transactions contemplated by the Agreement which if successful
would have a material adverse effect on Cambridge's ability to receive the
anticipated benefits of the Merger and the employment of the individuals
referenced in Section 9.2(d).
(f) Opinion of Counsel. Cambridge will have received an opinion dated
------------------
as of the Closing Date of Xxxxxx & Xxxx, PC, counsel to Excell, substantially in
the form attached as Exhibit 9.2.
-----------
(g) Consents. Cambridge will have received duly executed copies of
--------
all Consents specified in the Excell Disclosure Schedule, and there will not be
any material Consents which have not been received and are required to be
disclosed in Excell Disclosure Schedule which have not been so disclosed, in
each case except for such thereof as Cambridge and Excell will have agreed in
writing will not be obtained.
(h) Termination of Rights and Certain Securities. Any registration
--------------------------------------------
rights, rights of refusal, voting rights, rights to any liquidation preference
or redemption rights relating to any security of Excell will have been
terminated or waived or satisfied as of the Closing.
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(j) Stockholder Approvals. This Agreement and the Merger will have
---------------------
been approved by stockholders of Excell holding at least ninety five percent
(95%) of the voting power of the Outstanding Excell Shares. Any Parachute
Payments will have been approved by the percentage of holders of the Outstanding
Excell Shares as required by law (as reasonably interpreted by counsel for
Cambridge).
(k) Termination of 401k Plan. The Excell Board of Directors will have
------------------------
passed and not rescinded resolutions satisfactory to Cambridge's counsel
effectively terminating Excell's 401(k) Plan immediately prior to the Closing.
(l) Corporate Proceedings Satisfactory. All corporate and other
----------------------------------
proceedings to be taken by Excell in connection with the transactions
contemplated hereby and all documents incident thereto will be satisfactory in
form and substance to Cambridge and its counsel, and Cambridge and its counsel
will have received all such counterpart originals or certified or other copies
of such documents as they reasonably may request.
(m) Securities Law Compliance. Cambridge will be satisfied, in its
-------------------------
sole discretion, that the approval of the Merger, this Agreement and all
associated transactions by the stockholders of Excell and the issuance of
Cambridge Merger Shares hereunder will have been conducted in compliance with
the Securities Act; provided, however, that the inclusion of this condition will
not be construed in any way as excusing Cambridge from fulfilling its
obligations as an issuer under the Securities Act;
(n) Pooling Letter. Cambridge will have received an unqualified
--------------
written opinion from PricewaterhouseCoopers LLP, Cambridge's independent
accountants, to the effect that such firm concurs with Cambridge's management
that no conditions exist that would preclude Cambridge from accounting for the
Merger as a "pooling of interests" under applicable rules and regulations of the
Commission, a copy of which Cambridge shall deliver to Excell at the Closing.
9.3 Conditions of Obligation of Excell. The obligation of Excell and
----------------------------------
the Stockholders to effect the Merger is subject to the satisfaction of the
following conditions unless waived by Excell and the Stockholders:
(a) Representations and Warranties of Cambridge and Merger Sub. The
----------------------------------------------------------
representations and warranties of Cambridge and Merger Sub set forth in this
Agreement will be true and correct in all material respects as of the date of
this Agreement and as of the Closing Date as though made on and as of the
Closing Date, except as otherwise contemplated by this Agreement, and Excell
will have received a certificate signed on behalf of Cambridge by a duly
authorized officer of Cambridge to such effect.
(b) Performance of Obligations of Cambridge and Merger Sub.
------------------------------------------------------
Cambridge and Merger Sub will have performed in all material respects all
agreements and covenants required to be performed by them under this Agreement
prior to the Closing Date, and Excell will have received a certificate signed on
behalf of Cambridge by officers of Cambridge to such effect.
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(c) Opinion of Cambridge's Counsel. Excell and the Stockholders have
------------------------------
received an opinion dated the Closing Date of Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP,
substantially in the form attached as Exhibit 9.3, which states, among other
-----------
things, that no registration is required under either federal or state
securities law.
(d) Stockholder Approval. This Agreement and the Merger will have
--------------------
been approved and adopted by the requisite vote of the stockholders of Excell,
as required by the WBCA and Excell's Charter Documents; provided, however, that
the inclusion of this condition will not be construed in any way as excusing any
of the Stockholders from fulfilling their covenant in Section 6.13.
(e) Escrow and Registration Rights Agreements. Cambridge shall have
-----------------------------------------
duly executed and delivered the Escrow Agreement and the Registration Rights
Agreement.
(f) Legal Action. There will not be overtly threatened or pending
------------
any action, proceeding or other application before any court or Governmental
Entity brought by any person, entity or Governmental Entity: (i) challenging or
seeking to restrain or prohibit the consummation of the transactions
contemplated by this Agreement, or seeking to obtain any material damages from
Excell or the Stockholders as a result of the transactions contemplated by this
Agreement or (ii) restricting in any way the receipt, ownership, or ability to
dispose of the consideration to be received by any stockholder of Excell in the
transactions contemplated by this Agreement; provided, however, that Excell and
the Stockholders will automatically be deemed to waive this condition if
Cambridge agrees to indemnify, defend and hold any such named party harmless
against any such action.
ARTICLE X
INDEMNIFICATION
10.1 Indemnification Relating to Agreement. Subject to Sections 10.4
-------------------------------------
and 10.6, the Stockholders, jointly and severally, hereby agree to defend,
indemnify and hold Cambridge harmless from and against, and to reimburse
Cambridge with respect to, any and all losses, damages, liabilities, claims,
judgments, settlements, fines, costs and expenses (including reasonable
attorneys' fees), determined as provided in Section 10.4 ("Indemnifiable
-------------
Amounts"), of every nature whatsoever incurred by Cambridge (which will be
-------
deemed to include any of the foregoing incurred by the Surviving Corporation) by
reason of or arising out of (i) any breach, or any claim (including claims by
parties other than Cambridge) that constitutes a breach, by Excell or any of the
Stockholders of any representation or warranty of Excell or the Stockholders
contained in this Agreement or in any certificate or other document delivered to
Cambridge pursuant to this Agreement, other than any breach or related claim
taken or not taken at the written direction of or after consultation with and
written concurrence of Cambridge, (ii) the failure, partial or total, of Excell
or any of the Stockholders to perform any agreement or covenant required by this
Agreement to be performed by it or them other than any breach or related claim
taken or not taken at the written direction of or after consultation with and
written concurrence of Cambridge and (iii) any federal or state Tax liability of
Excell attributable to periods (or any portion thereof) ending on or prior to
the
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Closing but only to the extent such liabilities were not accrued for, or
reserved against, on the Balance Sheet. The foregoing obligations to indemnify
Cambridge will be determined without regard to any right to indemnification to
which any person may have in his or her capacity as an officer, director,
employee, agent or any other capacity of Excell, and no stockholder of Excell
will be entitled to any indemnification from Excell or the Surviving Corporation
for amounts paid hereunder. There will be no right of contribution or
subrogation from Cambridge or the Surviving Corporation for indemnification
payments made by the Stockholders.
10.2 Third Party Claims. With respect to any claims or demands by
------------------
third parties as to which Cambridge may seek indemnification hereunder, other
than claims or demands covered by Section 10.3, whenever Cambridge will have
received a written notice that such a claim or demand has been asserted or
threatened, Cambridge will notify the "Indemnification Representative" (as
designated in the Escrow Agreement) within ten (10) calendar days of such claim
or demand and of the facts within Cambridge's knowledge that relate thereto
within a reasonable time after receiving such written notice. The
Indemnification Representative will then have the right to defend, contest,
negotiate or settle any such claim or demand through counsel of his own
selection, satisfactory to Cambridge, and solely at the Stockholders' own cost
and expense. Notwithstanding the preceding sentence, the Indemnification
Representative will not settle, compromise, or offer to settle or compromise any
such claim or demand without the prior written consent of Cambridge, which
consent will not be unreasonably withheld. Without limiting Cambridge's rights
to object for other reasons, Cambridge may object to a settlement or compromise
which includes any provision which in its reasonable judgment may have an
adverse impact on or establish an adverse precedent for the Business Condition
of Cambridge or any of its Subsidiaries. If the Indemnification Representative
gives notice to Cambridge within twenty (20) calendar days after Cambridge has
notified the Indemnification Representative that any such claim or demand has
been made in writing, that the Indemnification Representative elects to have
Cambridge defend, contest, negotiate, or settle any such claim or demand, then
Cambridge will have the right to contest and/or settle any such claim or demand
and seek indemnification pursuant to this Article X as to any Indemnifiable
Amounts; provided, however, that Cambridge will not settle, compromise, or offer
to settle or compromise any such claim or demand without the prior written
consent (which may include a general or limited consent) of the Indemnification
Representative, which consent will not be unreasonably withheld. If the
Indemnification Representative fails to give written notice to Cambridge of his
intention to contest or settle any such claim or demand within twenty (20)
calendar days after Cambridge has notified the Indemnification Representative
that any such claim or demand has been made in writing, or if any such notice is
given but any such claim or demand is not contested by the Indemnification
Representative within a reasonable time thereafter, Cambridge will have the
right to contest and/or settle any such claim or demand in its sole discretion
and seek indemnification pursuant to this Article X as to any Indemnifiable
Amounts.
10.3 Tax Contests. Notwithstanding any of the foregoing, Cambridge
------------
will have the right to conduct any Tax audit or other Tax contest relating to
the Surviving Corporation. Cambridge will conduct any such Tax audit or other
Tax contest in good faith. With respect to any matters relating to such Tax
audits or other Tax contests as to which Cambridge may seek indemnification
hereunder (including pursuant to Section 8.10), Cambridge shall consult with the
Indemnification Representative and allow him to comment before taking any
position or making any written submission with any Governmental Entity with
regard to any indemnifiable matter. Cambridge will
-39-
not settle or pay any Tax deficiency asserted by any Governmental Entity with
regard to a matter as to which Cambridge may seek indemnification hereunder
without the consent of the Indemnification Representative, which consent will
not be unreasonably withheld. In the event of litigation involving any Tax
contest with regard to any such matter, the Indemnification Representative will
be permitted to participate in the defense thereof solely at the Stockholders'
own cost and defense. Cambridge and the Surviving Corporation will promptly
deliver to the Indemnification Representative copies of any notice regarding a
Tax audit, claim, deficiency, investigation or other similar matter affecting
Excell concerning a pre-Closing Date period or otherwise affecting the
Stockholders, and will not respond to the notice without prior consultation with
and timely comment from the Indemnification Representative.
10.4 Limitations. Notwithstanding any other provision in this Article
-----------
X, Cambridge will be entitled to indemnification only to the extent that the
aggregate Indemnifiable Amounts (which shall be determined for all purposes of
this Article X without regard to any materiality qualification or the use of the
word "material" contained in any representation, warranty or covenant giving
rise to claim for indemnity hereunder) exceed One Hundred Thousand Dollars
($100,000) (the "Threshold Amount"). Any dollar amount, up to $250,000,
----------------
recovered by Excell for overpayment of Washington State business and occupation
(B&O) tax for the periods from January 1993 through January 1998, will increase
the Threshold Amount (dollar for dollar) and will be applied against any
Indemnifiable Amounts up to that amount. The aggregate amount to which
Cambridge will be entitled to be indemnified will not exceed a dollar amount
equal to 20% of the aggregate number of Cambridge Merger Shares valued at the
Deemed Value Per Cambridge Share, and the liability of any single Stockholder
for indemnification obligations after the termination of the Escrow Agreement
shall be further limited to such Stockholder's pro rata share of any
Indemnifiable Amounts based on the number of Cambridge Merger Shares received by
such Stockholder relative to the aggregate number of Cambridge Merger Shares;
provided, however, that there will be no limitation on the obligations of any
person for Indemnifiable Amounts arising out of criminal activity or fraud or
willful misstatements or omissions by Excell or such person. Any Indemnifiable
Amounts payable by a stockholder of Excell pursuant to the preceding sentence
will be net of, and in addition to, the stockholder's portion of any portion of
the property held pursuant to the Escrow Agreement that is payable to Cambridge;
provided, however, that Cambridge will first seek reimbursement of any
Indemnifiable Amounts pursuant to the provisions of the Escrow Agreement, but
may seek indemnification hereunder with respect to any deficiency in any
Indemnifiable Amounts not satisfied by the property held pursuant to the Escrow
Agreement after the termination of the Escrow Agreement.
10.5 Binding Effect. The indemnification obligations contained in this
--------------
Article X are an integral part of this Agreement and the Merger in the absence
of which Cambridge would not have entered into this Agreement.
10.6 Time Limit. The representations, warranties, covenants and
----------
agreements of Excell and the Stockholders set forth in this Agreement will
survive the Closing and the consummation of the transactions contemplated by
this Agreement, but any claims with respect thereto may be made only on or
before the first yearly anniversary of the date of this Agreement; provided,
however, that claims alleging fraud or willful misstatements or omissions of
Excell or the Stockholders may be
-40-
made only on or before the third yearly anniversary of the Closing Date and
claims relating to Tax matters may be made only on or before the expiration of
the applicable Tax statute of limitations.
10.7 Updating of Disclosure Schedule. Excell will have the right to
-------------------------------
update the Excell Disclosure Schedule from time to time prior to the Closing to
reflect changes to the Excell Disclosure Schedule; provided that any changes to
the Excell Disclosure Schedule will have no effect for purposes of determining
whether Cambridge's closing condition set forth in Section 9.2(a) has been
satisfied, but will have the effect of precluding any indemnity claim pursuant
to Article X (or any reduction in the Threshold Amount) based on any such
changes which have been disclosed in all material respects.
10.8 Sole Remedy. Notwithstanding any other provision in this
-----------
Agreement to the contrary, the provisions of this Article X, Section 8.10 and
the provisions of the Escrow Agreement will be the sole and exclusive remedy of
(and corresponding liability of any stockholder of Excell, in such stockholder's
capacity as such, to) Cambridge, Merger Sub and the Surviving Corporation for
any damage, claim, cause of action or right of any nature arising out of or
relating to this Agreement, the certificates or other documents executed or
delivered herewith, or the transactions contemplated hereby; provided, however,
that nothing in this Agreement or the Escrow Agreement will be deemed to limit
any right or remedy against any particular Stockholder for that Stockholder's
criminal activity or fraud or willful misstatements or omissions, or that
Stockholder's breaches of covenants or inaccuracies in any representations or
warranties set forth in any other agreement contemplated by this Agreement,
including any Investment Agreement, Affiliate Agreement or employment agreement
or non-competition agreement or the Registration Rights Agreement, or the
specific agreements in the Excell Disclosure Schedule.
ARTICLE XI
TERMINATION
11.1 Mutual Agreement. This Agreement may be terminated at any time
----------------
prior to the Effective Time by the written consent of Cambridge and Excell.
11.2 Termination by Cambridge. This Agreement may be terminated by
------------------------
Cambridge (provided that it is not then in material breach of any
representation, warranty, covenant or agreement contained in this Agreement)
alone, by means of written notice to Excell, if there has been a material breach
by Excell or a Stockholder of any representation, warranty, covenant or
agreement set forth in this Agreement or other ancillary agreements, which
breach would result in a failure to satisfy the closing conditions contained in
Section 9.2 and has not been cured within five (5) business days following
receipt by Excell of notice of such breach.
11.3 Termination by Excell. This Agreement may be terminated by Excell
---------------------
(provided that it is not then in material breach of any representation,
warranty, covenant or agreement contained in this Agreement) alone, by means of
written notice to Cambridge, if there has been a material breach by Cambridge of
any representation, warranty, covenant or agreement set forth in the Agreement
or
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other ancillary agreements, which breach would result in a failure to satisfy
the closing conditions contained in Section 9.3 and has not been cured within
five (5) business days following receipt by Cambridge of notice of such breach,
11.4 Outside Date. This Agreement may be terminated by Cambridge alone
------------
or by Excell alone by means of written notice if the Effective Time does not
occur on or prior to August 31, 1998; provided, however, that the right to
terminate this Agreement pursuant to the preceding clause will not be available
to any party whose failure to fulfill any obligation under this Agreement has
been a significant cause of, or resulted in, the failure of the Effective Time
to occur on or before such date.
11.5 Effect of Termination. In the event of termination of this
---------------------
Agreement by either Excell or Cambridge as provided in this Article, this
Agreement will forthwith become void and have no effect, and there will be no
liability or obligation on the part of Cambridge, Excell, Merger Sub, the
Stockholders or their respective officers or directors, except that (i) the
provisions of Sections 8.4, 8.6, 8.7 and 13.2 will survive any such termination
and abandonment, and (ii) no party will be released or relieved from any
liability arising from the willful breach by such party prior to termination of
any of its representations, warranties, covenants or agreements as set forth in
this Agreement.
ARTICLE XII
MISCELLANEOUS
12.1 Entire Agreement. This Agreement, including the exhibits,
----------------
schedules and other agreements delivered pursuant to this Agreement, including
the Excell Disclosure Schedule and the Cambridge Disclosure Schedule, contain
all of the terms and conditions agreed upon by the parties relating to the
subject matter of this Agreement and supersede all prior agreements,
negotiations, correspondence, undertakings and communications of the parties,
whether oral or written, respecting that subject matter.
12.2 Governing Law; Consent to Jurisdiction. The Merger will be
--------------------------------------
governed by the WBCA to the extent applicable, and all other aspects of this
Agreement will be governed by the internal laws of the Commonwealth of
Massachusetts. Legal proceedings relating to this Agreement, the agreements
executed in connection with this Agreement or the transactions contemplated
hereby or thereby that are commenced against Cambridge, Merger Sub or the
Surviving Corporation may be commenced only in the state or federal courts in
Boston, Massachusetts. Any such legal proceedings that are commenced against
Excell or against any Stockholder may be commenced only in the state or federal
courts in Seattle, Washington. Each of the parties hereby consents to the
exclusive jurisdiction of such courts (and of the appropriate appellate courts)
in any such action or proceeding and waives any objection to venue laid therein.
The foregoing provisions will not be construed to preclude any party from
bringing a counter-claim in any action or proceeding properly commenced in
accordance with the foregoing provisions. Process in any such action or
proceeding may be served on any party anywhere in the world.
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Notwithstanding the foregoing, any dispute relating to a claim under the Escrow
Agreement will be resolved in accordance with the arbitration provisions of the
Escrow Agreement.
12.3 Notices. All notices, requests, demands or other communications
-------
which are required or may be given pursuant to the terms of this Agreement will
be in writing and will be deemed to have been duly given: (i) on the date of
delivery if personally delivered by hand, (ii) upon the third day after such
notice is deposited in the United States mail, if mailed by registered or
certified mail, postage prepaid, return receipt requested, (iii) upon the date
scheduled for delivery after such notice is sent by a nationally recognized
overnight express courier or (iv) by fax upon written confirmation (including
the automatic confirmation that is received from the recipient's fax machine) of
receipt by the recipient of such notice:
If to Cambridge or Merger Sub Cambridge Technology Partners
----------------------------- (Massachusetts), Inc.
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: General Counsel
Telephone No.: (000) 000-0000
Fax No.: (000) 000-0000
With copies to:
---------------
Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP
000 Xxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, Xx.
Telephone No.: (000) 000-0000
Fax No.: (000) 000-0000
If to Excell: Excell Data Corporation
------------- 0000-000xx Xxxxxx X.X., Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Chief Executive Officer
Telephone No.: (000) 000-0000
Fax No.: (000) 000-0000
With a copy to:
---------------
Xxxxxx & Xxxx PC
0000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxx
Telephone No.: (000) 000-0000
Fax No.: (000) 000-0000
Such addresses may be changed, from time to time, by means of a notice
given in the manner provided in this Section 12.3.
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12.4 Severability. If any provision of this Agreement is held to be
------------
unenforceable for any reason, it will be modified rather than voided, if
possible, in order to achieve the intent of the parties to this Agreement to the
extent possible. In any event, all other provisions of this Agreement will be
deemed valid and enforceable to the full extent.
12.5 Survival of Representations and Warranties. All representations
------------------------------------------
and warranties contained in this Agreement, including the exhibits and schedules
delivered pursuant to this Agreement, will survive the Effective Time, but any
claims for breach thereof may only be made within any applicable time limits
specified herein and in the Escrow Agreement.
12.6 Assignment. No party to this Agreement may assign, by operation
----------
of law or otherwise, all or any portion of its rights, obligations, or
liabilities under this Agreement without the prior written consent of Excell,
Merger Sub and Cambridge, which consent may be withheld in the absolute
discretion of the party asked to grant such consent; provided however, that no
such assignment which adversely reflects the rights of a Stockholder will be
made without the written consent of such Stockholder. Any attempted assignment
by Merger Sub or Cambridge, on the one hand, or by Excell, on the other hand, in
violation of this Section 12.6 will be voidable and will entitle Excell or
Cambridge, respectively, to terminate this Agreement at its option.
12.7 Counterparts. This Agreement may be executed in two or more
------------
partially or fully executed counterparts each of which will be deemed an
original and will bind the signatory, but all of which together will constitute
but one and the same instrument. The execution and delivery of a Signature Page
to Agreement and Plan of Merger in the form annexed to this Agreement, including
a facsimile copy of the actual signature, by any party hereto who will have been
furnished the final form of this Agreement will constitute the execution and
delivery of this Agreement by such party.
12.8 Amendment. This Agreement may not be amended except by an
---------
instrument in writing executed by Excell, Merger Sub and Cambridge; provided
however, that no such amendment which materially adversely affects the rights or
obligations of any Stockholder will be made without the written consent of such
Stockholder.
12.9 Extension, Waiver. At any time prior to the Effective Time, any
-----------------
party hereto may, to the extent legally allowed: (i) extend the time for the
performance of any of the obligations or other acts of any other party hereto to
the party extending such time, (ii) waive any inaccuracies in the
representations and warranties made to such party contained herein or in any
document delivered pursuant hereto, and (iii) waive compliance with any of the
agreements, covenants or conditions for the benefit of such party contained
herein. Any agreement on the part of a party hereto to any such extension or
waiver will be valid only if set forth in an instrument in writing signed on
behalf of such party.
12.10 Interpretation. When a reference is made in this Agreement to
--------------
Sections, Exhibits or Schedules, such reference will be to a Section, Exhibit or
Schedule to this Agreement unless otherwise indicated. The words "include,"
"includes," and "including" when used therein will be deemed in each case to be
followed by the words "without limitation." The table of contents, index
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to defined terms, and headings contained in this Agreement are for reference
purposes only and will not affect in any way the meaning or interpretation of
this Agreement.
12.11 Knowledge. For purposes of this Agreement, the term "knowledge"
--------- ---------
(including any derivation thereof such as "know" or "knowing" and regardless of
whether such word starts with an initial capital) in reference to Excell will
mean the knowledge of the executive officers of Excell and the Stockholders.
12.12 Transfer, Sales, Documentary, Stamp and Other Similar Taxes.
-----------------------------------------------------------
Any and all transfer, sales, documentary, stamp and other similar Taxes imposed
in connection with the transactions contemplated by this Agreement will be paid
by the stockholder of Excell with respect to which such Tax relates. At
Cambridge's discretion, the amount paid to any person pursuant to this Agreement
will be reduced by the amount of Taxes payable by such person pursuant to this
Section 12.12. Any amounts so withheld will be promptly remitted to the
appropriate taxing authority.
(The remainder of this page has been left blank intentionally.)
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Signature Page to
Agreement and Plan of Merger
IN WITNESS WHEREOF, Cambridge, Merger Sub, Excell and the Stockholders
have executed this Agreement as of the date first written above.
CAMBRIDGE TECHNOLOGY PARTNERS EXCELL DATA CORPORATION
(MASSACHUSETTS), INC.
By: /x/ Xxxxx X. X'Xxxx By: /x/ Xxxxxxx X. Xxxxxxx
Title: Senior Vice President Title: Chairman
CAMBRIDGE/WASHINGTON ACQUISITION CORP.
By: /x/ Xxxx X. X'Xxxx
Title: Vice President
STOCKHOLDERS:
/x/ Xxxxxxx X. Xxxxxxx /x/ Xxxxx Xxxxxxx
XXXXXXX X. XXXXXXX, individually XXXXX XXXXXXX, individually
/x/ Xxx Xxxxx /x/ Xxxxxxxxxxx Xxxxxx Xxxx
XXX XXXXX, individually XXXXXXXXXXX XXXXXX-XXXX, individually
/x/ Xxxxx Xxxxxxx /x/ Xxxxx Xxxxxxx
XXXXX XXXXXXX, individually XXXXX XXXXXXX, individually
/x/ H. Xxxxxx Xxxxx /x/ Xxxxx X. Xxxxxxx
H. XXXXXX XXXXX, individually XXXXX X. XXXXXXX, individually
/x/ Xxxx Xxxxxxx /x/ Xxxx X. Xxxxxxx
XXXX XXXXXXX, individually XXXX X. XXXXXXX, individually
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/x/ Xxxxxxx Xxxxxxxx /x/ Xxxxxxx Xxxxxx
XXXXXXX XXXXXXXX, individually XXXXXXX XXXXXX, individually
/x/ Xxxx X. Xxxxxxx /x/ Xxxxxxxxx X. Xxxxxxx
XXXX X. XXXXXXX, individually XXXXXXXXX X. XXXXXXX, individually
/x/ Xxxx Xxxxxxx /x/ Xxxx X. Xxxxxxx
XXXX XXXXXXX, individually XXXX X. XXXXXXX, individually
XXXX X. XXXXXXX TRUST: FE & XXXX X. XXXXXXX TRUST:
/x/ Xxxxx Xxxxxxx /x/ Xxxxx Xxxxxxx
Xxxxx Xxxxxxx, Trustee Xxxxx Xxxxxxx, Trustee
/x/ Xxxxx X. Xxxxxxx /x/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx, Trustee Xxxxx X. Xxxxxxx, Trustee
/x/ Xxxx X. Xxxxxxx /x/ Xxxx X. Xxxxxxx
Xxxx X. Xxxxxxx, Trustee Xxxx X. Xxxxxxx, Trustee
XXXXXXX XXXXXXX TRUST: XXXXXXX XXXXXXX TRUST:
/x/ Xxxxx X. Xxxxxxx /x/ Xxxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx, Trustee Xxxxxx X. Xxxxxxx, Trustee
XXXXXX XXXXXXX TRUST: SIERRA TRUST:
/x/ Xxxx X. Xxxxxxx /x/ Xxxxx X. Xxxxxxx
Xxxx X. Xxxxxxx, Trust Xxxxx X. Xxxxxxx, Trustee
/x/ Xxxxxxxx X. Xxxxxxx
XXXX XXXX YOUNG TRUST: Xxxxxxxx X. Xxxxxxx, Trustee
/x/ Xxxx X. Xxxxxxx /x/ Xxxxxxxx X. Xxxxxxx
Xxxx X. Xxxxxxx, Trustee Xxxxxxxx X. Xxxxxxx, Trustee
XXXXXXX XXXXXXX TRUST:
/x/ Xxxx X. Xxxxxxx
Xxxx X. Xxxxxxx, Trustee
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XXXXXX XXXXXXX TRUST: BURUKA TRUST:
/x/ Xxxx X. Xxxxxxx /x/ Xxxxx X. Xxxxxxx
Xxxx X. Xxxxxxx, Trustee Xxxxx X. Xxxxxxx, Trustee
/x/ Xxxxxxxx X. Xxxxxxx
XXXXX XXXXXXX TRUST: Xxxxxxxx X. Xxxxxxx, Trustee
/x/ Xxxxxx X. Xxxxxxx /x/ Xxxxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx, Trustee Xxxxxxxx X. Xxxxxxx, Trustee
XXXXXX X. XXXXXXX TRUST: BRAVO TRUST:
/x/ Xxxxxx X. Xxxxxxx /x/ Xxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx, Trustee Xxxxx X. Xxxxxxx, Trustee
/x/ Xxxxxxxx X. Xxxxxxx
XXXXX XXXXXXX TRUST: Xxxxxxxx X. Xxxxxxx, Trustee
/x/ Xxxxxx X. Xxxxxxx /x/ Xxxxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx, Trustee Xxxxxxxx X. Xxxxxxx, Trustee
XXXX XXXXXXXX TRUST: CROCODILE ROCK TRUST:
/x/ Xxxx Xxxxxxxx /x/ Xxxxx X. Xxxxxxx
Xxxx Xxxxxxxx, Trustee Xxxxx X. Xxxxxxx, Trustee
/x/ Xxxxxxxx X. Xxxxxxx
XXXX XXXXXXXX TRUST: Xxxxxxxx X. Xxxxxxx, Trustee
/x/ Xxxx Xxxxxxxx /x/ Xxxxxxxx X. Xxxxxxx
Xxxx Xxxxxxxx, Trustee Xxxxxxxx X. Xxxxxxx, Trustee
XXXXXXX XXXXX TRUST: INCA TRUST:
/x/ Xxxxxxx X. Xxxxxxx /x/ Xxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx, Trustee Xxxxx X. Xxxxxxx, Trustee
XXXXXXX X. XXXXX IRREVOCABLE /x/ Xxxxxxxx X. Xxxxxxx
TRUST: Xxxxxxxx X. Xxxxxxx, Trustee
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/x/ Xxxxxxx X. Xxxxxxx /x/ Xxxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx, Trustee Xxxxxxxx X. Xxxxxxx, Trustee
XXXXXXXX XXXXXXX TRUST: MORIGAN TRUST:
/x/ Xxxxxxx Xxxxxxx /x/ Xxxxx X. Xxxxxxx
Xxxxxxx Xxxxxxx, Trustee Xxxxx X. Xxxxxxx, Trustee
/x/ Xxxx Xxxxxxx /x/ Xxxxxxxx X. Xxxxxxx
Xxxx Xxxxxxx, Trustee Xxxxxxxx X. Xxxxxxx, Trustee
/x/ Xxxxx X. Xxxxxxx /x/ Xxxxxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx, Trustee Xxxxxxxx X. Xxxxxxx, Trustee
-49-
