CERTIFICATE AND AGREEMENT
(Rendition Affiliates)
This Certificate and Agreement (the "Certificate") is made as of June __,
1998 by each of the undersigned shareholders of Rendition (each a "Shareholder"
and collectively the "Shareholders").
A. This Certificate is made pursuant to that certain Agreement and Plan
of Reorganization dated as of June __, 1998, as such may be amended (the "Plan
of Reorganization"), entered into by and between Micron and Rendition. The Plan
of Reorganization provides, among other things, for the statutory merger of
Rendition with and into Micron (the "Merger"), in accordance with the terms and
conditions of the Plan of Reorganization and the Agreement of Merger in the form
attached thereto to be entered into between Micron and Rendition (the "Agreement
of Merger"). The Plan of Reorganization and the Agreement of Merger are
collectively referred to herein as the "Merger Agreements."
B. The Merger Agreements provide for the conversion of all of the issued
and outstanding capital stock of Rendition at the Effective Time of the Merger
into shares of Micron Common Stock, all as more particularly set forth in the
Merger Agreements.
C. Each Shareholder understands that because it is intended that the
Merger will be treated as a tax-free "reorganization" within the meaning of
Section 368 of the Internal Revenue Code, the shares of Rendition Common Stock
and/or Preferred Stock which such Shareholder owns, any shares of Rendition
Common or Preferred Stock which such Shareholder may hereafter acquire, and any
shares of Micron Common Stock acquired by Shareholder pursuant to the Merger may
be disposed of only in conformity with the limitations described herein.
D. Each Shareholder understands that this Certificate is in addition to
and separate from the Rendition Affiliate Agreement dated of even date herewith
entered into pursuant to the Plan of Reorganization (the "Affiliate Agreement").
Capitalized terms used herein and not defined herein shall have the meanings
that such terms have in the Plan of Reorganization or the Affiliate Agreement,
as the case may be.
NOW, THEREFORE, the undersigned hereby certify and agree as follows:
1. TAX TREATMENT
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Each Shareholder understands and agrees that it is intended that the Merger
will be treated as a tax-free reorganization for federal income tax purposes.
Each Shareholder will rely on such Shareholder's own tax advisers as
to the tax attributes of the Merger to such Shareholder and understands that
neither Micron, Rendition nor their respective counsel has guaranteed or
represented nor will guarantee or represent to any Shareholder that the Merger
will be a tax-free reorganization. Each Shareholder understands that counsel to
Rendition (Fenwick & West LLP) and counsel to Micron (Holland & Xxxx LLP) have
not acted as counsel for such Shareholder with respect to any matter related to
the Merger, and that such Shareholder has not relied on Rendition or its
counsel, or Micron or its counsel, with respect to any legal matter related to
the Merger or its tax consequences, including, without limitation, any U.S.
federal income tax consequences.
2. CONTINUITY OF INTEREST
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Prior to the Effective Time, Shareholder will not transfer Shareholder's
Rendition Securities to Rendition or to Micron (other than in exchange for
Merger Securities), or to any person related to Rendition or Micron. After the
Effective Time, Shareholder will not transfer Merger Securities to Micron or to
any person related to Micron. As used herein, "transfer" means any sale,
exchange, distribution, pledge, or direct or indirect disposition. As used
herein, "persons related" to a corporation include corporations which are
members of the same affiliated group as defined in Section 1504 of the Code
(determined without regard to Section 1504(b)); or two corporations if the first
corporation purchases the stock of the second corporation in a transaction which
would be treated as a distribution in redemption of the stock of the first
corporation under Section 304(a)(2) (determined without regard to Treas. Reg.
Section 1.1502-80(b)). In addition, a corporation will be treated as related to
another corporation if such relationship exists immediately before or
immediately after, or is created in connection with, the Merger.
3. GENERAL
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3.1 Termination. This Certificate shall be terminated and shall be of
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no further force and effect upon the termination of the Plan of Reorganization
pursuant to its terms.
3.2 Counterparts. This Certificate may be executed in any number of
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counterparts, each of which will be an original as regards any party whose
signature appears thereon and all of which together will constitute one and the
same instrument. This Certificate will become binding when one or more
counterparts hereof, individually or taken together, will bear the signatures of
all parties reflected hereon as signatories.
3.3 Assignment; Binding Upon Successors and Assigns. No party hereto may
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assign any of its rights or obligations hereunder without the prior written
consent of the other parties hereto. This Certificate will be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns.
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3.4 Reliance. Each Shareholder understands that the representations,
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warranties and covenants of such Shareholder set forth herein will be relied
upon by Micron and Rendition and their respective shareholders, legal counsel
and accounting firms.
IN WITNESS WHEREOF, the undersigned have executed this Certificate as of
the date first set forth above.
SHAREHOLDERS:
APA EXCELSIOR IV, L.P.
By: APA Excelsior IV Partners, L.P.,
its General Partner
By: Patricof & Co. Managers, Inc.,
its General Partner
By: /s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Vice President
XXXXXX & CO. (CAYMAN) LTD,
Custodian for APA Excelsior IV/Offshore
By: Patricof & Co. Ventures, Inc.
its Investment Adviser
By: /s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Managing Director
THE P/A FUND III, L.P.
By: APA Pennsylvania Partners III, L.P.,
its General Partner
By: Patricof & Co. Managers, Inc.,
its General Partner
By: /s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Vice President
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PATRICOF PRIVATE INVESTMENT CLUB, L.P.
By: APA Excelsior IV Partners, L.P.,
its General Partner
By: Patricof & Co. Managers, Inc.,
its General Partner
By: /s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Vice President
XXXX XXXX
/s/ Xxxx Xxxx
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MATRIX PARTNERS III, L.P.
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: General Partner
Company: Matrix Partners III, L.P.
XXXXXX X. XXXXX
/s/ Xxxxxx X. Xxxxx
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OCEAN PARK VENTURES, L.P.
By: /s/ Xxx Xxxxx
Name: Xxx Xxxxx
Title: General Partner
ENTERPRISE PARTNERS III, L.P.
By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: General Partner
Company: Enterprise Management Partners III
Its: General Partner
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ENTERPRISE PARTNERS III ASSOCIATES, L.P.
By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: General Partner
Company: Enterprise Management Partners III
Its: General Partner
XXX XXXXX
/s/ Xxx Xxxxx
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INTERWEST PARTNERS V, L.P.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: General Partner
Company: InterWest Management Partners V, L.P.
Its: General Partner
INTERWEST INVESTORS V, L.P.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: General Partner
Company: InterWest Management Partners V, L.P.
Its: General Partner
XXXXXX X. XXXXXX
/s/ Xxxxxx X. Xxxxxx
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XXXXXXX X. XXXXX
/s/ Xxxxxxx X. Xxxxx
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XXXX XXXXXX
/s/ Xxxx Xxxxxx
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XXXXXX XXXXXX
/s/ Xxxxxx Xxxxxx
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XXXXXXX XxXXXXXX
/s/ Xxxxxxx XxXxxxxx
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XXXXX X. XXXXXXXX
/s/ Xxxxx X. Xxxxxxxx
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XXX X. XXXXXXXXX
/s/ Xxx X. Xxxxxxxxx
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XXXXX XXXXXXX
/s/ Xxxxx Xxxxxxx
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XXXX XXXXX
/s/ Xxxx Xxxxx
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XXXX-XXXXX TRUST 10-8-91
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Trustee
XXXXXXX X. XXXXXX
/s/ Xxxxxxx X. Xxxxxx
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