EXHIBIT 2.1
AGREEMENT AND PLAN OF
MERGER AND REORGANIZATION
BY AND AMONG
SYSTEMSOFT CORPORATION
BLACK ACQUISITION CORPORATION
AND
RADISH COMMUNICATIONS SYSTEMS, INC.
Dated as of December 12, 1996
TABLE OF CONTENTS
ARTICLE I - THE MERGER..................................................... 2
1.1 The Merger............................................................ 2
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1.2 Effective Time........................................................ 2
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1.3 Certain Effects of the Merger......................................... 2
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1.4 Certificate of Incorporation.......................................... 2
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1.5 By-Laws............................................................... 3
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1.6 Directors and Officers................................................ 3
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1.7 Certain Other Agreements.............................................. 3
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ARTICLE II - CONVERSION AND EXCHANGE OF SECURITIES......................... 4
2.1 Shares of the Surviving Corporation................................... 4
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2.2 Conversion of Company Common.......................................... 4
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2.3 Conversion of Radish Securities....................................... 4
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2.4 Exchange Agent........................................................ 5
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2.5 No Fractional SystemSoft Common....................................... 5
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2.6 Distribution of SystemSoft Common..................................... 6
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2.7 Closing of Stock Transfer Books....................................... 6
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2.8 Dissenting Shares..................................................... 7
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ARTICLE III - REPRESENTATIONS AND WARRANTIES OF RADISH..................... 7
3.1 Corporate Existence and Power......................................... 7
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3.2 Corporate Authorization............................................... 7
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3.3 Governmental Authorization............................................ 8
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3.4 Non-Contravention..................................................... 8
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3.5 Capitalization........................................................ 8
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3.6 Subsidiaries.......................................................... 9
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3.7 Financial Statements.................................................. 9
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3.8 Absence of Undisclosed Liabilities.................................... 9
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3.9 Properties............................................................ 10
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3.10 Real Property........................................................ 10
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3.11 Condition of Tangible Assets......................................... 10
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3.12 Intellectual Property................................................ 10
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3.13 Absence of Certain Changes........................................... 11
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3.14 Litigation........................................................... 13
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3.15 Material Contracts................................................... 13
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3.16 Taxes................................................................ 15
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3.17 Employees............................................................ 16
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3.18 Transactions with Affiliates......................................... 16
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3.19 Insurance Coverage................................................... 17
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3.20 Compliance with Laws; No Defaults.................................... 17
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3.21 Finders' Fees........................................................ 17
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3.22 Environmental Matters................................................ 17
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3.23 Intercompany Arrangements; Conflicts................................. 19
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3.24 Employee Plans....................................................... 19
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Agreement and Plan of Merger -- Page ii
3.25 Other Information.................................................... 20
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ARTICLE IV - REPRESENTATIONS AND WARRANTIES OF SYSTEMSOFT AND THE COMPANY.. 20
4.1 Corporate Existence and Power......................................... 21
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4.2 Corporate Authorization............................................... 21
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4.3 Governmental Authorization............................................ 21
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4.4 Non-Contravention..................................................... 21
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4.5 Capitalization........................................................ 21
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4.6 SEC Documents......................................................... 22
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4.7 SystemSoft Common..................................................... 22
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ARTICLE V - COVENANTS...................................................... 23
5.1 Mutual Covenants and Agreements....................................... 23
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5.2 Certain Covenants of Radish........................................... 24
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5.3 Covenants of SystemSoft and the Company............................... 28
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ARTICLE VI - CLOSING MATTERS............................................... 29
6.1 The Closing........................................................... 29
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6.2 Documents and Certificates............................................ 29
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ARTICLE VII - CONDITIONS OF CLOSING........................................ 30
7.1 Conditions to Obligations of SystemSoft, the Company and Radish....... 30
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7.2 Conditions Applicable to SystemSoft and the Company................... 30
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7.3 Conditions Applicable to Radish....................................... 32
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ARTICLE VIII - TERMINATION................................................. 33
8.1 Termination........................................................... 33
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8.2 Notice of Termination; Effect of Termination.......................... 34
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8.3 Fees.................................................................. 34
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8.4 Procedure Upon Termination............................................ 34
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ARTICLE IX -- SURVIVAL; INDEMNIFICATION.................................... 35
9.1 Survival.............................................................. 35
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9.2 Indemnification....................................................... 35
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9.3 Third Person Claims................................................... 36
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9.4 Limitations on Indemnification........................................ 36
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9.5 Method of Payment..................................................... 36
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ARTICLE X -- MISCELLANEOUS................................................. 37
10.1 Other Remedies; Specific Performance................................. 37
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10.2 Expenses............................................................. 37
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10.3 Further Assurances................................................... 37
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10.4 Parties in Interest.................................................. 37
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10.5 Entire Agreement..................................................... 38
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10.6 Amendment or Modification............................................ 38
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10.7 Waiver............................................................... 38
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10.8 Assignability........................................................ 38
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10.9 Certain Definitions.................................................. 38
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10.10 Headings and Interpretation......................................... 39
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10.11 Notices............................................................. 39
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ii
Agreement and Plan of Merger -- Page iii
10.12 Law Governing....................................................... 40
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10.13 Invalidity of Provisions............................................ 40
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10.14 Counterparts........................................................ 40
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10.15 Consent to Jurisdiction............................................. 40
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iii
AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
This Agreement and Plan of Merger and Reorganization dated as of
December 12, 1996 (the "Agreement") by and among SystemSoftCorporation, a
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Delaware corporation ("SystemSoft"), Black Acquisition Corporation, a Delaware
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corporation and a wholly-owned subsidiary of SystemSoft (the "Company"), and
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Radish Communications Systems, Inc., a Delaware corporation ("Radish"; Radish
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and the Company being hereinafter sometimes called the "Constituent
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Corporations"):
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WITNESSETH:
WHEREAS, the authorized capital stock of SystemSoft consists of (i)
1,000,000 shares of Preferred Stock, par value $.01 per share, of which no
shares are issued and outstanding, and (ii) 90,000,000 shares of Common Stock,
par value $.01 per share (the "SystemSoft Common"), of which 22,731,854 shares
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were issued and outstanding as of December 4, 1996;
WHEREAS, the authorized capital stock of the Company consists of 100
shares of Common Stock, par value $.01 per share, all of which shares are owned
beneficially and of record by SystemSoft;
WHEREAS, the authorized capital stock of Radish consists of (i)
12,388,682 shares of Preferred Stock, par value $.001 per share, of which
3,025,000 are designated as series A Preferred Stock, of which 3,025,000 are
issued and outstanding (the "Series A Preferred"); 5,045,500 of which are
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designated as Series B Preferred Stock, of which 5,005,500 are issued and
outstanding (the "Series B Preferred"); 1,500,000 of which are designated Series
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C Preferred Stock, of which 1,500,000 are issued and outstanding (the "Series C
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Preferred"); and 2,818,182 of which are designated as Series D Preferred Stock,
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of which 2,818,182 are issued and outstanding (the "Series D Preferred") (the
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Series A, B, C and D Preferred are collectively referred to herein as the
"Radish Preferred"); and (ii) 26,000,000 shares of Common Stock, par value $.001
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per share (the "Radish Common"), of which 2,528,507 shares are issued and
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outstanding;
WHEREAS, the respective Boards of Directors of the Company and Radish
have by resolutions approved this Agreement and deem it advisable for the mutual
benefit of the Constituent Corporations, and of the respective stockholders of
each, that the Company merge with and into Radish under and pursuant to the
General Corporation Law of the State of Delaware (the "Delaware Corporation
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Law") and upon the terms and subject to the conditions hereinafter set forth;
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WHEREAS, to induce SystemSoft and the Company to enter into this
Agreement, simultaneously with the execution and delivery of this Agreement,
Radish and certain of its stockholders and employees have entered into certain
agreements with SystemSoft and the Company pursuant to which such Radish
stockholders and employees have undertaken to take certain actions in connection
with the transactions contemplated by this Agreement; and
WHEREAS, the parties intend by executing and delivering this Agreement
to adopt a plan of reorganization within the meaning of Section 368(a) of the
Internal Revenue Code of 1986, as amended (the "Code");
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NOW, THEREFORE, in consideration of these premises and the mutual
agreements, provisions and covenants contained in this Agreement, the parties
hereby agree as follows:
Agreement and Plan of Merger -- Page 2
ARTICLE I
THE MERGER
1.1 The Merger. In accordance with Section 251 of the Delaware Corporation
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Law, the Company shall be merged with and into Radish (the "Merger"), and Radish
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shall be the surviving corporation (such corporation in its capacity as such
surviving corporation being hereinafter called the "Surviving Corporation").
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The terms and conditions of the Merger, the mode of carrying the same into
effect, and the manner and basis of converting shares of each of the Constituent
Corporations into the consideration which the holders of those shares are to
receive upon conversion of such shares, shall be as set forth in this Agreement.
1.2 Effective Time. The Merger shall become effective as of the time of the
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filing of the executed certificate of merger with the Secretary of State of
Delaware pursuant to Section 251(c) of the Delaware Corporation Law (the
"Effective Time").
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1.3 Certain Effects of the Merger. As of the Effective Time, the effect of
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the Merger shall be as provided by the applicable provisions of the Delaware
Corporation Law. Without limiting the generality of the foregoing and subject
thereto, at the Effective Time: the separate existence of the Company shall
cease and the Company shall be merged into Radish; the Surviving Corporation
shall possess, without further act or deed, all the rights, privileges, powers
and franchises of a public as well as of a private nature, and be subject to all
the restrictions, disabilities and duties of each of the Constituent
Corporations; and all and singular, the rights, privileges, powers and
franchises of each of the Constituent Corporations, and all property, real,
personal and mixed, and all debts due to any of the Constituent Corporations on
whatever account, as well for stock subscriptions as all other things in action
or belonging to each of the Constituent Corporations shall be vested in the
Surviving Corporation; and all property, rights, privileges, powers and
franchises, and all and every other interest shall be thereafter as effectively
the property of the Surviving Corporation as they were of the several and
respective Constituent Corporations, and the title to any real estate vested by
deed or otherwise, under the laws of Delaware, in any of the Constituent
Corporations, shall not revert or be in any way impaired by reason of the
Merger; but all rights of creditors and all liens upon any property of any of
the Constituent Corporations shall be preserved unimpaired, and all debts,
liabilities and duties of the respective Constituent Corporations shall
thenceforth attach to the Surviving Corporation, and may be enforced against it
to the same extent as if such debts, liabilities and duties had been incurred or
contracted by it. Any action or proceeding, whether civil, criminal or
administrative, pending by or against any of the Constituent Corporations shall
be prosecuted as if the Merger had not taken place, and the Surviving
Corporation may be substituted in such action or proceeding.
1.4 Certificate of Incorporation. At the Effective Time, the certificate of
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incorporation of the Company, as in effect immediately prior to the Effective
Time, shall be the certificate of incorporation of the Surviving Corporation
until thereafter amended as provided by law and such certificate of
incorporation; provided, however, that at the Effective Time the certificate of
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incorporation of the Surviving Corporation shall be amended so that the name of
the Surviving Corporation shall be Radish, Inc.
Agreement and Plan of Merger -- Page 3
1.5 By-Laws. The by-laws of the Company, as in effect immediately prior to
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the Effective Time shall be, at the Effective Time, the by-laws of the Surviving
Corporation until thereafter amended.
1.6 Directors and Officers. The directors and officers of the Surviving
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Corporation from and after the Effective Time shall be the directors and
officers of the Company immediately prior to the Effective Time, each to hold
office in accordance with applicable law and the certificate of incorporation
and by-laws of the Surviving Corporation.
1.7 Certain Other Agreements. Concurrently with the execution and delivery of
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this Agreement:
(a) Radish shall deliver to SystemSoft and the Company:
(i) a copy of the Participation Agreement in the form of Exhibit A
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(the "Participation Agreement") duly executed and delivered by Radish and the
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stockholders named therein (the "Major Stockholders");
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(ii) a copy of the Registration Rights Agreement in the form of
Exhibit B (the "Registration Rights Agreement" duly executed and delivered by
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Radish's stockholders;
(iii) a copy of the Escrow Agreement in the form of Exhibit C (the
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"Escrow Agreement") duly executed and delivered by the Stockholder
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Representative (as hereinafter defined); and
(iv) a copy of the Put Agreement in the form of Exhibit D (the "Put
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Agreement") duly executed and delivered by the Radish stockholders named
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therein.
(b) SystemSoft and the Company shall deliver to the respective other
parties thereto copies of the Participation Agreement, the Registration Rights
Agreement and the Escrow Agreement duly executed by SystemSoft, the Company or
both, as the case may be.
1.8 At the Effective Time, SystemSoft shall deliver to State Street Bank and
Trust Company, or any successor escrow agent appointed pursuant to the Escrow
Agreement (the "Escrow Agent") that number of the shares of SystemSoft Common
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issued to Radish stockholders pursuant to Section 2.3 equal to 10% of the total
number of shares of SystemSoft Common issued to the Major Stockholders, rounded
down to the nearest whole share, such shares to be held and applied in
accordance with the Escrow Agreement ( the "Escrow Shares").
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1.9 The stockholders, by virtue of their approval of the Agreement, will be
deemed to have irrevocably constituted and appointed, effective as of the
Effective Time, Xxxxx X. Xxxxx (together with his permitted successors, the
"Stockholder Representative"), as their true and lawful agent and attorney-in-
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fact to enter into any agreement in connection with the transactions
contemplated by this Agreement and any transactions contemplated by the Escrow
Agreement, to exercise all or any of the powers, authority and discretion
conferred on him under any such agreement, to waive any terms and conditions of
any such agreement (other than the Merger consideration), to give and receive
notices on their behalf and to be their exclusive representative with respect to
any matter, suit, claim, action or proceeding arising with respect to any
transaction contemplated by any such agreement, including, without
Agreement and Plan of Merger -- Page 4
limitation, the defense, settlement or compromise of any claim, action or
proceeding for which SystemSoft or the Company may be entitled to
indemnification and the Stockholder Representative agrees to act as, and to
undertake the duties and responsibilities of, such agent and attorney-in-fact.
This power of attorney is coupled with an interest and is irrevocable. The
Stockholder Representative shall not be liable for any action taken or not taken
by him in connection with his obligations under this Agreement (i) with the
consent of stockholders who, as of the date of this Agreement owned a majority
in number of the outstanding shares of Radish Common (treating Radish Preferred
on an as-converted basis) or (ii) in the absence of his own gross negligence or
willful misconduct. If the Stockholder Representative shall be unable or
unwilling to serve in such capacity, his successor shall be named by those
persons holding a majority of the shares of Radish Common outstanding (treating
Radish Preferred on an as-converted basis) at the Effective Time who shall serve
and exercise the powers of Stockholder Representative hereunder.
ARTICLE II
CONVERSION AND EXCHANGE OF SECURITIES
2.1 Shares of the Surviving Corporation. The authorized number and par value
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of shares of all classes of stock of the Company immediately prior to the
Effective Time shall be the authorized number and par value of shares of the
classes of stock of the Surviving Corporation from and after the Effective Time.
2.2 Conversion of Company Common. At the Effective Time, each share of Common
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Stock, par value $.01 per share, of the Company issued and outstanding
immediately prior to the Effective Time shall, by virtue of the Merger and
without any action on the part of the holder thereof, automatically be converted
into and represent one validly issued, fully paid and nonassessable share of
Common Stock, par value $.01 per share, of the Surviving Corporation.
2.3 Conversion of Radish Securities. (a) At the Effective Time, each share of
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Radish Common (it being understood that all shares of Radish Series A Preferred,
Series B Preferred, Series C Preferred and 74.35% (on a pro rata basis) of
Series D Preferred shall convert on a pro rata basis into shares of Radish
Common immediately prior to the Effective Time) issued and outstanding
immediately prior to the Effective Time (other than shares of Radish Common,
Series A Preferred, Series B Preferred and Series C Preferred (i) held in the
treasury of Radish, which shall not be considered as outstanding for purposes of
this Agreement, (ii) held by SystemSoft or any subsidiary of SystemSoft or
Radish, (iii) which are Dissenting Shares (as hereinafter defined), or (iv)
which are purchased by SystemSoft for cash pursuant to Section 2.3(e)) shall, by
virtue of the Merger and without any action on the part of the holder thereof,
automatically be canceled and extinguished and converted into the right to
receive 0.1156944 shares of SystemSoft Common (the "Common Exchange Ratio") upon
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surrender of the certificate or certificates representing such shares of Radish
Common and Radish Preferred in the manner provided in Section 2.6.
(b) At the Effective Time, each share of Radish Series D Preferred issued
and outstanding immediately prior to the Effective Time (other than shares of
Series D Preferred (i) that converted into shares of Radish Common as provided
in Section 2.3(a) above, (ii) held in the treasury of Radish, which shall not be
considered as outstanding for purposes of this Agreement, (iii) held by
SystemSoft or any subsidiary of SystemSoft or Radish, (iv) which are Dissenting
Shares (as hereinafter defined), or (iv)
Agreement and Plan of Merger -- Page 5
which are purchased by SystemSoft for cash pursuant to Section 2.3(e)) shall, by
virtue of the Merger and without any action on the part of the holder thereof,
automatically be canceled and extinguished and converted into the right to
receive 0.2331227 shares of SystemSoft Common (the "Series D Exchange Ratio")
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upon surrender of the certificate or certificates representing such shares of
Series D Preferred in the manner provided in Section 2.6.
(c) At the Effective Time, each share of Radish Common or Series D
Preferred held (i) in the treasury of Radish, or (ii) by SystemSoft or any
subsidiary of SystemSoft or Radish, immediately prior to the Effective Time
shall, by virtue of the Merger and without any action on the part of the holder
thereof, automatically be canceled and retired and all rights in respect thereof
shall cease to exist.
(d) If between the date of this Agreement and the Effective Time, the
outstanding shares of SystemSoft Common, Radish Common or Series D Preferred
shall have been changed (subject to compliance with the applicable provisions of
Article V) into a different number of shares or a different class, by reason of
any stock dividend, subdivision, reclassification, split-up, combination,
exchange of shares or the like, the Common Exchange Ratio and Series D Exchange
Ratio, as the case may be, shall be appropriately adjusted.
(e) Notwithstanding anything to the contrary in this Agreement, if, at
the Effective Time, a stockholder of Radish owns less than 10,000 shares of
Radish Common (treating the Radish Preferred on an as-converted basis) such
stockholder shall receive, in lieu of shares of SystemSoft Common, $2.1774 per
share in cash for each share of Radish Common (treating the Radish Preferred on
an as-converted basis) held by such stockholder.
(f) Each certificate representing shares of SystemSoft Common to be
issued in the Merger shall bear a legend substantially in the following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AND
MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED,
PLEDGED OR HYPOTHECATED UNLESS AND UNTIL SUCH
SHARES ARE REGISTERED UNDER SUCH ACT OR AN OPINION
OF COUNSEL SATISFACTORY TO SYSTEMSOFT IS OBTAINED
TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.
2.4 Exchange Agent. State Street Bank and Trust Company, or such other
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national or state bank as is selected by SystemSoft, shall act as the agent for
Radish stockholders for purposes of mailing and receiving transmittal letters
and distributing consideration to Radish stockholders (the "Exchange Agent").
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2.5 No Fractional SystemSoft Common. Notwithstanding any other provision of
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this Agreement, neither certificates nor scrip for fractional shares of
SystemSoft Common shall be issued to any holder of Radish Common or Series D
Preferred in the Merger and the holder thereof shall not be entitled to any
voting or other rights of a holder of shares or a fractional share interest.
Each holder of shares of Radish Common or Series D Preferred who otherwise would
have been entitled to receive a fraction of a share of SystemSoft Common (after
aggregating all fractional shares of SystemSoft Common to be received by such
holder) shall receive in lieu thereof cash (rounded to the nearest whole
Agreement and Plan of Merger -- Page 6
cent), without interest, in an amount determined by multiplying such holder's
fractional interest by the last sales price per share of the SystemSoft Common
on the Nasdaq National Market on the last trading day immediately preceding the
Effective Time. All amounts of cash in respect of fractional interests which
have not been claimed at the end of three years from the Effective Time by
surrender of certificates for shares of Radish Common or Series D Preferred
shall be repaid to the Surviving Corporation, subject to the provisions of
applicable escheat or similar laws, for the account of the holders entitled
thereto.
2.6 Distribution of SystemSoft Common. (a) As soon as practicable after the
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Effective Time, the Exchange Agent shall distribute (i) the SystemSoft Common as
provided in this Section 2.6, (ii) any cash in respect of fractional shares as
provided in Section 2.5, and (iii) any cash in respect of shares of Radish
Common or Series D Preferred purchased by SystemSoft pursuant to Section 2.3(e).
SystemSoft shall deliver to the Exchange Agent cash and one or more certificates
representing in the aggregate the number of shares of SystemSoft Common issuable
in the Merger in exchange for shares of Radish Common or Series D Preferred
outstanding at the Effective Time in sufficient time for the Exchange Agent to
make such distribution of SystemSoft Common and cash as provided for in the
foregoing sentence. The Exchange Agent shall not be entitled to vote or
exercise any rights of ownership with respect to any shares of SystemSoft Common
held by it from time to time hereunder, except that it shall receive and hold
all dividends or other distributions paid or distributed with respect to such
shares for the account of the persons entitled thereto.
(b) At the Effective Time, each holder of an outstanding certificate or
certificates for shares of Radish Common or Series D Preferred shall cease to
have any rights as a stockholder of Radish, except such rights, if any, as such
holder may have with respect to Dissenting Shares. Each such holder of an
outstanding certificate or certificates for shares of Radish Common or Series D
Preferred converted in the Merger, upon surrender of each such certificate to
the Exchange Agent, shall receive promptly in exchange for each such certificate
the shares of SystemSoft Common and cash for fractional shares (if any) to which
such holder is entitled pursuant to Sections 2.3 and 2.5 of this Agreement.
Pending such surrender and exchange, such holder's certificate or certificates
for shares of Radish Common or Series D Preferred shall be deemed for all
corporate purposes, by virtue of the Merger and without any action on the part
of the holder thereof, to evidence only the right to receive the shares of
SystemSoft Common and cash (if any) provided for under this Agreement. Unless
and until any such outstanding certificates for shares of Radish Common or
Series D Preferred shall be so surrendered, no dividend (cash or stock) payable
to holders of record of shares of SystemSoft Common as of any date subsequent to
the Effective Time shall be paid to the holder of any such outstanding
certificate and his other rights as a stockholder of SystemSoft shall be
suspended, but upon such surrender of such outstanding certificate there shall
be paid to the record holder of the certificate of shares of SystemSoft Common
issued in exchange therefor the amount of dividends, if any, without interest
and less any taxes which may have been imposed thereon, that have theretofore
become payable with respect to the number of those shares of SystemSoft Common
represented by such certificate issued upon such surrender and exchange, and his
other rights as a stockholder of SystemSoft shall thereafter be restored.
2.7 Closing of Stock Transfer Books. The stock transfer books of Radish
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shall be closed at the close of business on the business day immediately
preceding the Effective Time. In the event of a transfer of ownership of Radish
Common or Series D Preferred which is not registered in the transfer records of
Radish, the shares of SystemSoft Common and cash for fractional shares (if any)
to be issued in the Merger as provided herein may be delivered to a transferee,
if the certificate representing such Radish Common or Series D Preferred is
presented to the Exchange Agent, accompanied by all
Agreement and Plan of Merger -- Page 7
documents required to evidence and effect such transfer and by payment of any
applicable stock transfer taxes.
2.8 Dissenting Shares. Shares of Radish Common or Series D Preferred that
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have not been voted for adoption of this Agreement and with respect to which
appraisal rights shall have been properly perfected in accordance with Section
262 of the Delaware Corporation Law (the "Dissenting Shares") shall not be
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converted into the right to receive shares of SystemSoft Common and cash (if
any) in accordance with this Agreement at or after the Effective Time, unless
and until the holder of such Dissenting Shares withdraws his demand for such
appraisal in accordance with Section 262(k) of the Delaware Corporation Law or
becomes ineligible for such appraisal. If a holder of Dissenting Shares shall
withdraw in accordance with Section 262(k) of the Delaware Corporation Law or
his demand for such appraisal or shall become ineligible for such appraisal,
then, as of the later of the Effective Time or the occurrence of such event,
such holder's Dissenting Shares shall cease to be Dissenting Shares and shall be
converted into the right to receive the shares of SystemSoft Common and cash (if
any) into which his Radish Common or Series D Preferred was converted as of the
Effective Time pursuant to this Agreement. Any amounts to be paid to holders of
Dissenting Shares with respect to such Dissenting Shares shall be paid by the
Surviving Corporation.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF RADISH
Radish hereby represents and warrants to each of SystemSoft and the Company as
follows:
3.1 Corporate Existence and Power. Radish is a corporation duly
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incorporated, validly existing and in good standing under the laws of the State
of Delaware and has all corporate power and authority necessary to enable it to
own, lease or otherwise hold its properties and assets and to carry on its
business as now conducted and currently proposed to be conducted. Radish is duly
qualified to do business as a foreign corporation and is in good standing in
each jurisdiction where the character of the property owned or leased by it or
the nature of its activities makes such qualification necessary, except for
those jurisdictions where the failure to be so qualified would not have a
material adverse effect upon the financial condition, results of operations,
business, properties, assets or operations of Radish (a "Material Adverse Effect
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on Radish"). All jurisdictions in which Radish is so qualified to do business
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are listed in Schedule 3.1. Radish has previously delivered to SystemSoft and
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the Company true and complete copies of the certificate of incorporation and by-
laws of Radish, as amended to date and as currently in effect, and all minutes
of meetings (including actions in lieu thereof) of the board of directors (and
each committee thereof) and stockholders of Radish.
3.2 Corporate Authorization. The execution, delivery and performance by
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Radish of this Agreement and the consummation by Radish of the Merger and other
transactions contemplated by this Agreement are within Radish's corporate power
and authority, and have been duly authorized by all necessary corporate action.
The Board of Directors of Radish has (i) unanimously determined that this
Agreement and the transactions contemplated hereby, including the Merger, are
fair to and in the best interest of Radish's stockholders, (ii) unanimously
approved this Agreement and the transactions contemplated hereby, including the
Merger, and (iii) unanimously resolved to recommend approval and adoption of
this Agreement and the Merger by its stockholders. This Agreement has been duly
Agreement and Plan of Merger -- Page 8
authorized, executed and delivered by Radish and constitutes a valid and binding
obligation of Radish, enforceable against Radish in accordance with its terms.
3.3 Governmental Authorization. The execution, delivery and performance by
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Radish of this Agreement, and the consummation of the Merger and other
transactions contemplated by this Agreement by Radish, do not and will not
require any consent, approval or action by or in respect of, or any declaration,
filing or registration with, any governmental or regulatory body, court, agency,
official or authority (each, a "Governmental Authority"), other than routine
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filings with the Secretary of State of the State of Delaware necessary to
consummate the Merger and as disclosed on Schedule 3.3.
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3.4 Non-Contravention. Except as disclosed on Schedule 3.4, the execution,
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delivery and performance by Radish of this Agreement, and the consummation of
the Merger and other transactions contemplated by this Agreement by Radish, do
not and will not, with or without the giving of notice, the lapse of time or
both: (i) contravene or conflict with the certificate of incorporation or by-
laws of Radish, (ii) assuming compliance with the matters referred to in Section
3.3, contravene or conflict with or constitute a violation of any provision of
any law, rule, regulation, judgment, injunction, order or decree currently in
effect and binding upon or applicable to Radish, (iii) require any consent,
approval or other action by any person, contravene or conflict with or
constitute a violation of or a default under, or give rise to any right of
termination, cancellation or acceleration of any right or obligation of Radish
or to a loss of any benefit to which Radish is entitled, under any provision of
(A) any material agreement, contract, indenture, lease or other instrument
binding upon Radish or (B) assuming compliance with the matters referred to in
Section 3.3, any material license, franchise, permit or other similar
authorization held by Radish or (iv) except for the rights of any holders of
Dissenting Shares, result in the creation or imposition of any mortgage, pledge,
security interest, lien, claim, charge, restriction, encumbrance or assessment
of any kind (each, a "Lien") on any asset of Radish.
----
3.5 Capitalization. The authorized capital stock of Radish consists of (i)
--------------
12,388,682 shares of Preferred Stock, par value $.001 per share, of which
3,025,000 shares of Series A Preferred are issued and outstanding and none of
which are held in the treasury of Radish, of which 5,005,500 shares of Series B
Preferred are issued and outstanding and none of which are held in the treasury
of Radish; of which 1,500,000 shares of Series C Preferred are issued and
outstanding and none of which are held in the treasury of Radish; of which
2,818,182 shares of Series D are issued and outstanding and none of which are
held in the treasury of Radish; and (ii) 26,000,000 shares of Radish Common, of
which 2,528,507 shares are issued and outstanding and none of which shares are
held in the treasury of Radish. All issued and outstanding shares of Radish
Common and Radish Preferred are validly issued, fully paid and nonassessable,
and have not been issued in violation of any preemptive, first refusal or other
subscription rights of any stockholder of Radish or any other person. Except as
set forth on Schedule 3.5, there are no outstanding (i) shares of capital stock
------------
or other voting securities of Radish, (ii) securities of Radish convertible into
or exchangeable for shares of capital stock or voting securities of Radish,
(iii) options, warrants, exchange rights, subscription rights or other
agreements, commitments or rights to purchase or otherwise acquire from Radish,
or agreements, commitments or obligations of Radish to issue or sell, any
capital stock, voting securities or securities convertible into or exchangeable
for capital stock or voting securities of Radish or (iv) any agreement,
commitment or obligation of Radish to grant, or enter into any such option,
warrant, call, right, commitment or agreement (the items in clauses (i), (ii)
(iii) and (iv) being referred to collectively as the "Radish Securities").
------------------
Except as set forth on Schedule 3.5, there are no outstanding obligations of
------------
Radish to sell, issue or deliver, or to repurchase, redeem or otherwise acquire,
any Radish Securities. Schedule 3.5 sets forth a true and
------------
Agreement and Plan of Merger -- Page 9
complete list of the record, and, to the knowledge of Radish, the beneficial,
owners of all Radish Securities.
3.6 Subsidiaries. Radish does not hold or own, directly or indirectly, any
------------
capital stock or other equity securities of any other corporation, or have any
direct or indirect equity or ownership interest in any association, partnership,
joint venture or other entity.
3.7 Financial Statements. Radish has previously delivered to SystemSoft and
--------------------
the Company the following financial statements (collectively, the "Financial
---------
Statements"):
----------
(i) the audited consolidated balance sheets of Radish as of December
31, 1994 and 1995 and the related statements of operations, stockholders'
equity and cash flows for each of the years ended 1993, 1994 and 1995
together with the notes thereto, in each case audited by, and accompanied by
the report thereon, of Price Waterhouse, LLP ("Price Waterhouse"); and
----------------
(ii) the unaudited consolidated balance sheet of Radish as of November
30, 1996 (the "Unaudited Balance Sheet") and the related statements of
-----------------------
operations and cash flows for the eleven months then ended.
Each of the Financial Statements has been prepared in accordance with generally
accepted accounting principles applied on a consistent basis; and fairly
presents the financial position of Radish as of its date or the results of
operations or changes in financial position, as is appropriate, of Radish for
the periods then ended (subject, in the case of unaudited interim financial
statements, to recurring year-end adjustments, which adjustments will not be
material in amount or effect). Except as may be set forth in the Financial
Statements, all of the revenues and expenses of Radish reflected in the
Financial Statements were derived or incurred in the ordinary course of business
of Radish. The account records underlying the Financial Statements accurately
and fairly reflect, in reasonable detail, the transactions of Radish, and
Radish's books of account have been maintained in accordance with generally
accepted accounting practices applied on a consistent basis. All accounts,
notes and other receivable of Radish are valid and enforceable, are not subject
to any valid defense, set off, counterclaim or claim for returns or refunds, and
are collectible in full in accordance with their terms in the ordinary course of
business of Radish, except to the extent of any reserves therefor reflected on
the Unaudited Balance Sheet or taken in the ordinary course of business
consistent with past practice which in the aggregate are not material to Radish.
3.8 Absence of Undisclosed Liabilities. Radish has no material liabilities
----------------------------------
or obligations, except those liabilities or obligations which are (a) fully
reflected or adequately reserved against in the Unaudited Balance Sheet, (b)
disclosed in this Agreement or in the Schedules hereto, or (c) incurred in the
ordinary course of business consistent with past practice. To the knowledge of
Radish, there is no basis for any assertion against Radish of any material
liability or obligation of any nature or in any amount not (a) fully reflected
or adequately reserved against in the Unaudited Balance Sheet, (b) disclosed in
this Agreement or in the Schedules hereto, or (c) incurred in the ordinary
course of business consistent with past practice. For the purposes of this
Agreement the phrase "liabilities or obligations" shall include any direct or
indirect indebtedness, claim, loss, damage, deficiency (including deferred
income tax and other net tax deficiencies), cost, expense, obligation,
guarantee, or responsibility, whether accrued, absolute or contingent, known or
unknown, fixed or unfixed, liquidated or unliquidated, secured or unsecured.
Agreement and Plan of Merger -- Page 10
3.9 Properties. Except as set forth in Schedule 3.9, all of the assets and
---------- ------------
properties of Radish are reflected on the Unaudited Balance Sheet (except to the
extent not required to be so reflected by generally accepted accounting
principles), and Radish has good, valid and marketable title to all of its owned
assets and properties, whether real, personal or mixed, tangible or intangible,
that are material to the business of Radish, free and clear of all Liens, except
(a) Liens for current taxes not delinquent or being contested in good faith by
appropriate proceedings, (b) Liens in connection with workmen's compensation,
unemployment insurance or other social security obligations, (c) deposits or
pledges to secure bids, tenders, contracts (other than contracts or the payment
of money), leases, statutory obligations, surety and appeal bonds and other
obligations of like nature arising in the ordinary course of business, (d)
mechanic's, xxxxxxx'x, materialmen's or other like Liens arising in the ordinary
course of business with respect to obligations which are not due or which are
being contested in good faith, and (e) such imperfections of title, Liens,
easements and encumbrances, if any, as are not substantial and do not materially
detract from the value, or materially interfere with the present use, of any of
the properties subject thereto or effected thereby, or otherwise have a Material
Adverse Effect on Radish.
3.10 Real Property. Set forth on Schedule 3.10 is an accurate and complete
------------- -------------
list and summary description of all real property currently owned or leased by
or on behalf of Radish and, except as set forth on Schedule 3.10, none of the
-------------
described leases require any consent to the transactions contemplated by this
Agreement. Radish has previously delivered to SystemSoft and the Company
accurate and complete copies of all leases listed and described on
Schedule 3.10. Except as set forth on Schedule 3.10, Radish has possession of
-------------
each of the aforementioned properties and, to the knowledge of Radish, no event
has occurred which, with the lapse of time or notice or both, could result in a
material default under any of the described leases. All rents or other material
payment obligations which have become due in respect of each of such leased
properties have been paid, Radish has complied in all material respects with its
obligations under the said leases and Radish has not received any notice of any
breach of its obligations under any covenants, agreements, statutory
requirements, planning consents, by-laws, orders and regulations affecting any
of such properties (whether owned or leased), their use and any business of
Radish there carried on.
3.11 Condition of Tangible Assets. All material tangible property,
----------------------------
including the real property and structures thereon, of Radish is in good
operating condition, reasonable wear and tear excepted, and the operation and
use of such property in the business of Radish conforms in all material respects
to all applicable laws, ordinances, regulations, permits, licenses and
certificates.
3.12 Intellectual Property. Radish owns, or is licensed or otherwise
---------------------
possesses legally enforceable rights to use all patents, trademarks, trade
names, service marks, copyrights, and any applications therefor, maskworks, net
lists, schematics, technology, know-how, computer software programs or
applications (in both source code and object code form), and tangible or
intangible proprietary information or material that are used or proposed to be
used in the business of Radish as currently conducted or as proposed to be
conducted by Radish. Schedule 3.12(a) lists all patents, registered and
----------------
unregistered trademarks and service marks, registered and unregistered
copyrights, trade names and any applications therefor, which relate to or are
part of Radish's products or are used in the business of Radish (the "Radish
------
Intellectual Property Rights"), and specifies the jurisdictions in which each
-----------------------------
such Radish Intellectual Property Right issued or registered or in which an
application for such issuance and registration has been filed, including the
respective registration or application numbers and the names of all registered
owners. Schedule 3.12(b) lists (i) all licenses, sublicenses and other
----------------
agreements as to which Radish is a party and pursuant to which any person is
authorized to use any Radish Intellectual Property Right or any trade secret
material to Radish and includes any Radish
Agreement and Plan of Merger -- Page 11
Intellectual Property Right or any trade secret material to Radish and includes
the identity of all parties thereto; and (ii) all licenses, sublicenses and
other agreements as to which Radish is a party and pursuant to which Radish is
authorized to use any third party patents, trademarks or copyrights (including
software) (the "Radish Third Party Intellectual Property Rights") which are
-----------------------------------------------
incorporated in, are, or form a part of, any Radish product, or other trade
secret of a third party in or as to any product, and includes the identity of
all parties thereto, a description of the nature and subject matter thereof, the
applicable royalty and the term thereof.
Radish is not, nor will it be as a result of the execution and delivery of
this Agreement or the performance of its obligations hereunder, in violation of
any license, sublicense or agreement described on Schedule 3.12(b). No claims
----------------
with respect to Radish Intellectual Property Rights, any trade secret material
to Radish, or Radish Third Party Intellectual Property Rights to the extent
arising out of any use, reproduction or distribution of such Radish Third Party
Intellectual Rights by or through Radish, have been asserted or are threatened
by any person, nor, except as disclosed by Radish to SystemSoft, does Radish
know of any valid grounds for any bona fide claims (i) to the effect that the
manufacture, sale, licensing or use of any product as now used, sold or licensed
or proposed for use, sale or license by Radish infringes on any copyright,
patent, trademark, service xxxx or trade secret; (ii) against the use by Radish
of any trademarks, trade names, trade secrets, copyrights, patents, technology,
know-how or computer software programs and applications used in Radish's
business as currently conducted or as proposed to be conducted by Radish; (iii)
challenging the ownership, validity or effectiveness of any of Radish
Intellectual Property Rights or other trade secret material to Radish; or (iv)
challenging Radish's license or legally enforceable right to use, or the
validity or effectiveness of Radish Third Party Intellectual Rights.
All registered trademarks, service marks and copyrights held by Radish are
valid and subsisting. There is no unauthorized use, disclosure, infringement or
misappropriation of any of Radish Intellectual Property Rights, any trade secret
material to Radish, or any Radish Third Party Intellectual Property Right to the
extent licensed by or through Radish, by any third party, including any employee
or former employee of Radish. Except as disclosed by Radish to SystemSoft,
Radish (i) has not been sued or charged in writing as a defendant in any claim,
suit, action or proceeding which involves a claim of infringement of any
patents, trademarks, service marks, copyrights or violation of any trade secret
or other proprietary right of any third party; (ii) has no knowledge of the
basis for any such charge or claim; and (iii) has no knowledge of any
infringement liability with respect to, or infringement or violation by, Radish
of any patent, trademark, service xxxx, copyright, trade secret or other
proprietary right of another.
No Radish Intellectual Property Right, trade secret material to Radish, or
Radish Third Party Intellectual Property Right is subject to any outstanding
order, judgment, decree, stipulation or agreement restricting in any manner the
licensing thereof by Radish. Except for contracts licensing Radish's products
executed in the ordinary course of business and in accordance with Radish's past
practices, Radish has not entered into any agreement to indemnify any other
person against any charge of infringement of any Radish Third Party Intellectual
Property Right. Each employee of, and consultant to Radish has signed a Non-
Disclosure Agreement, or Consultant Agreement, respectively, in Radish's
standard forms substantially as set forth in Schedule 3.12(c) hereto.
----------------
3.13 Absence of Certain Changes. Except as disclosed in Schedule 3.13,
-------------------------- -------------
since November 30, 1996, the business of Radish has been conducted in the
ordinary course consistent with past practices and there has not been:
Agreement and Plan of Merger -- Page 12
(i) any event, occurrence, development or state of circumstances or facts
which has had or could reasonably be expected to result in or have a Material
Adverse Effect on Radish;
(ii) any declaration, setting aside or payment of any dividend or other
distribution with respect to any shares of capital stock of Radish, or any
repurchase, redemption or other acquisition by Radish of any outstanding shares
of capital stock or other securities of, or other equity or ownership interests
in, Radish;
(iii) any amendment of any material term of any outstanding security of
Radish;
(iv) any incurrence, assumption or guarantee by Radish of any indebtedness
for borrowed money other than in the ordinary course of business and in amounts
and on terms consistent with past practices, but in any event not exceeding an
aggregate of $10,000;
(v) any creation or assumption by Radish of any Lien on any asset, other
than Liens that do not in the aggregate materially detract from the value of
such assets or materially impair the use thereof in the operation of the
business of Radish;
(vi) any making of any loan, advance or capital contributions to or
investment in any person;
(vii) any damage, destruction or other casualty loss (whether or not
covered by insurance) affecting the business or assets of Radish which has had
or would reasonably be expected to result in or have a Material Adverse Effect
on Radish;
(viii) any acquisitions of any capital assets or any other investments for
aggregate consideration in excess of $10,000;
(ix) any sale, lease, pledge, transfer or other disposition of any capital
assets for aggregate consideration in excess of $10,000;
(x) any transaction or commitment made, or any contract or agreement
entered into, by Radish relating to its assets or business (including the
acquisition or disposition of any assets) or any relinquishment by Radish of any
contract or other right, in either case, material to Radish, other than
transactions, commitments and relinquishments in the ordinary course of business
consistent with past practices and those contemplated by this Agreement;
(xi) any change in any method of accounting or accounting practice by
Radish;
(xii) any (A) grant of any severance or termination pay to any director,
officer or employee of Radish, (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 employee
of Radish, (C) change in benefits payable under existing severance or
termination pay policies or employment, severance, management, consulting or
other similar agreements or (D) change in compensation, bonus or other benefits
payable to directors, officers or employees of Radish, other than increases in
the ordinary course of business
Agreement and Plan of Merger -- Page 13
of the compensation of the employees (other than the directors, officers and Key
Employees (as hereinafter defined)) of Radish;
(xiii) any labor dispute, other than routine individual grievances, or
any activity or proceeding by a labor union or representative thereof to
organize any employees of Radish, or any lockouts, strikes, slowdowns, work
stoppages or threats thereof by or with respect to any employees of Radish; or
(xiv) any agreement, undertaking or commitment to do any of the
foregoing.
3.14 Litigation. There is no action, suit, investigation or proceeding
----------
pending against or, to the knowledge of Radish, threatened against or affecting,
Radish or any of its properties or assets before any court or arbitrator or any
Governmental Authority. Radish is not subject to any judgment, order or decree
entered in any lawsuit or proceeding or issued by any Governmental Authority.
3.15 Material Contracts. (a) Except for agreements, contracts, plans,
------------------
leases, arrangements or commitments disclosed in Schedule 3.15 or any other
-------------
Schedule or the Financial Statements provided to SystemSoft pursuant to this
Agreement, Radish is not a party to or subject to:
(i) any collective bargaining agreement;
(ii) any agreements that contain any unpaid severance liabilities or
obligations;
(iii) any bonus, deferred compensation, incentive compensation,
pension, profit-sharing or retirement plans, or any other employee benefit
plans or arrangements;
(iv) any employment or consulting agreement, contract or commitment
with an employee or individual consultant or salesperson or consulting or
sales agreement, contract or commitment with a firm or other organization
not terminable by Radish on 90 days' notice without liability except to the
extent applicable local law and/or general principles of wrongful
termination law may limit Radish's ability to terminate such employees;
(v) agreement or plan, including, without limitation, any stock
option plan, stock appreciation right plan or stock purchase plan, any of
the benefits of which will be increased, or the vesting of benefits of
which will be accelerated, by the occurrence of any of the transactions
contemplated by this Agreement or the value of any of the benefits of which
will be calculated on the basis of any of the transactions contemplated by
this Agreement;
(vi) any fidelity or surety bond or completion bond;
(vii) any lease of personal property having a remaining value
individually in excess of $10,000;
(viii) any agreement of indemnification or guaranty;
(ix) any agreement, contract or commitment containing any covenant
limiting the freedom of Radish to engage in any line of business or compete
with any person;
Agreement and Plan of Merger -- Page 14
(x) any agreement, contract or commitment relating to capital
expenditures and involving future obligations in excess of $10,000;
(xi) any agreement, contract or commitment relating to the disposition
or acquisition of assets not in the ordinary course of business or any
ownership interest in any corporation, partnership, joint venture or other
business enterprise;
(xii) any mortgages, indentures, loans or credit agreements, security
agreements or other agreements or instruments relating to the borrowing of
money or extension of credit, including guaranties referred to in clause
(viii) hereof
(xiii) any purchase order or contract for the purchase of raw materials
or acquisition of assets involving $10,000 or more;
(xiv) any construction contracts;
(xv) any distribution, joint marketing or development agreement; or
(xvi) any other agreement, contract or commitment which involves
$25,000 or more and is not cancelable without penalty within thirty (30)
days.
Radish has not breached, or received in writing any claim or threat that it
has breached, any of the terms or conditions of (i) any agreement, contract or
commitment set forth in any of Radish's Schedules or (ii) any other material
agreement, contract or commitment in such a manner as would permit any other
party to cancel or terminate the same or would permit any other party to seek
damages from Radish that would have a Material Adverse Effect on Radish. Each
agreement, contract or commitment set forth in any of Radish's schedules is in
full force and effect and, except as otherwise disclosed, is not subject to any
material default thereunder of which Radish is aware by any party obligated to
Radish pursuant thereto. Radish has obtained, or will obtain prior to the
Effective Time, all necessary consents, waivers and approvals as are required in
connection with the Merger under any of Radish's material agreements, contracts,
licenses or leases.
(b) Each agreement, contract, plan, lease, arrangement and commitment
disclosed in any Schedule to this Agreement or required to be disclosed pursuant
to this Section 3.15 is a valid and binding agreement of Radish and is in full
force and effect, and Radish is not, nor is, to the knowledge of Radish, any
other party thereto, in default or breach in any material respect under the
terms of any such agreement, contract, plan, lease, arrangement or commitment.
(c) There is no contract, agreement, commitment or obligation to which
Radish is a party or is bound that at the time it was entered into or made was,
or is currently, known or expected by Radish to result in any loss to Radish
upon completion or performance thereof, or any bid, offer or proposal which if
accepted would result as such a contract, agreement, commitment or obligation.
(d) Except as disclosed in Schedule 3.15, Radish is not a party to any
-------------
agreement with any of its securityholders or optionholders, or any affiliate
thereof, nor, to the knowledge of Radish, without inquiry by Radish, is any
securityholder or optionholder of Radish a party to any agreement with any other
such securityholder or optionholder relating to Radish or any of its securities.
Agreement and Plan of Merger -- Page 15
3.16 Taxes. (a) The term "Taxes" as used herein means all federal, state,
----- -----
local, foreign and other net income, gross income, gross receipts, sales, use,
ad valorem, transfer, franchise, profits, license, lease, service, service use,
withholding, payroll, employment, excise, severance, stamp, occupation, premium,
property, windfall profits, customs duties, unemployment insurance,
environmental, worker's compensation, Pension Benefit Guaranty Corporation
premiums and all other taxes, fees, assessments or other charges of any kind
similar to Taxes, together with any interest and any penalties, additions to tax
or additional amounts with respect thereto, and the term "Tax" means any one of
---
the foregoing taxes. The term "Returns" as used herein means all returns,
-------
declarations, reports, statements and other documents required to be filed in
respect of Taxes, including information returns or reports with respect to
backup withholding and other payments to third parties, and "Return" means any
------
one of the foregoing returns. All citations to the Code, or the Treasury
Regulations promulgated thereunder, shall include any amendments or any
substitute or successor provisions thereto. The representations and warranties
contained in this Section 3.16 shall pertain to the period from Radish's
inception up to and including the Effective Time.
(b) Radish has filed all Returns required to be filed by or on its
behalf on a timely basis and such Returns are true, complete and correct. None
of the Returns filed or required to be filed by Radish contains or will contain
a disclosure statement under former Section 6661 or Section 6662 of the Code or
any similar provision of any state, local or foreign law.
(c) All Taxes shown to be payable by Radish on the Returns or on
subsequent assessments with respect thereto have been paid in full on a timely
basis, and no other Taxes are payable by Radish with respect to items or periods
covered by such Returns (whether or not shown on or reportable on such Returns)
or with respect to any period ending on or prior to the Effective Time. Radish
has withheld and paid over all Taxes required to have been withheld and paid
over by it, and complied in all respects with all information reporting and
backup withholding requirements, including maintenance of required records with
respect thereto, in connection with amounts paid or owing to any employee,
creditor, independent contractor or other third party. There are no Liens on any
of the assets of Radish with respect to Taxes, other than Liens for Taxes not
yet due and payable or for Taxes that Radish is contesting in good faith through
appropriate proceedings and for which appropriate reserves have been
established, which reserves are fully reflected in the Financial Statements.
(d) The amount of Radish's liability for unpaid Taxes for all periods
does not, in the aggregate, exceed the amount of the net current liability
accruals for Taxes set forth on the Unaudited Balance Sheet and Radish will
incur no additional Taxes subsequent to the date of the Unaudited Balance Sheet
until the Effective Time except in the ordinary course of business.
(e) No issues have been raised (and are currently pending) by any
taxing authority in connection with any of the Returns of Radish. No waivers of
statutes of limitation with respect to any of the Returns have been given by or
requested from Radish. All deficiencies asserted or assessments made as a result
of any examinations have been fully paid, or are fully reflected as a liability
in the Financial Statements, or are being contested and an appropriate reserve
therefor has been established and is fully reflected in the Financial
Statements. All elections with respect to Taxes affecting Radish, as of the date
hereof, are set forth in the Returns, other than any such elections which are
not required to be included in the Returns, copies of which have been made
available to Buyer. Radish 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 (without regard to the exceptions in
Sections 280G(b)(4) and 280G(b)(5) of the Code) or (ii) any other
Agreement and Plan of Merger -- Page 16
amount for which a deduction would be disallowed under Section 162(m) or Section
404 of the Code. Radish has not agreed to make any adjustment under Section
481(a) of the Code by reason of a change in accounting method or otherwise, and
Radish will not be required to make any such adjustment as a result of the
transactions contemplated by this Agreement. Radish is not a party to any safe
harbor lease within the meaning of Section 168(f)(8) of the Code, as in effect
prior to amendment by the Tax Equity and Fiscal Responsibility Act of 1982.
Radish is not and has not ever been, a "United States real property holding
corporation" within the meaning of Section 897(c)(2) of the Code. None of the
Major Stockholders nor any other holder of Radish Common or Radish Preferred is
a "foreign person" as that term is defined in Section 1445 of the Code. Radish
is not (and has not ever been) a party to a tax-sharing agreement and has not
assumed the liability of any other person for Taxes under contract. Radish has
not ever been a member of a group of corporations filing a consolidated, unitary
or combined Return. Radish has not taken any action that would have the effect
of deferring any material liability for Taxes for Radish from any taxable period
ending at or before the Effective Time to any taxable period thereafter. Radish
has not participated in or cooperated with any international boycott within the
meaning of Section 999 of the Code. As of the Closing Date the ability of Radish
to use its net operating loss and other carryovers will not have been affected
by Sections 382, 383 or 384 of the Code (other than as a result of the Merger).
No claim has ever been made by a tax authority in a jurisdiction where Radish
does not file Returns that it is or may be subject to Tax in that jurisdiction.
The transactions set forth in this Agreement are not 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. Radish is not a party to
any joint venture, partnership, or other arrangement or contract which could be
treated as a partnership for federal income tax purposes. Radish 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. Radish
has never filed a consent pursuant to Section 341(f) of the Code (or any
corresponding provision of state, local or foreign law), relating to collapsible
corporations, or agreed to have Section 341(f)(2) of the Code (or any
corresponding provision of state, local or foreign law) apply to the disposition
of any asset owned by it. Radish shall have fully complied with all federal,
state, local and foreign Tax withholding obligations arising in connection with
the cancellation or exercise of Radish options, rights and warrants, and
SystemSoft shall have no liability therefor. Any adjustment of Taxes made by the
Internal Revenue Service in any examination which is required to be reported to
state, local, foreign or other taxing authorities has been so reported, and any
additional Taxes due with respect thereto have been paid. No power of attorney
has been granted by Radish, and is currently in force, with respect to any
matter relating to Taxes.
3.17 Employees. Schedule 3.17 sets forth a true and complete list of (a)
--------- -------------
the names, titles, annual salaries and other compensation of all employees of
Radish (the "Employees") and the location at which such Employees regularly
---------
perform services for Radish and (b) the wage rates for non-salaried Employees of
Radish (by classification). Any agreements, commitments or understandings
between Radish and any Employee concerning such Employee's future salary,
compensation or terms of employment are described in Schedule 3.17. Except as
-------------
set forth on Schedule 3.17, none of such Employees has indicated to Radish that
-------------
he intends to resign or retire as a result of the transactions contemplated by
this Agreement or otherwise. Radish has no employees represented by a union and
Radish (i) to its knowledge, is in compliance with all applicable laws and
regulations respecting employment wages and laws and (ii) is not engaged in any
unfair labor practice.
3.18 Transactions with Affiliates. Except as set forth in Schedule 3.18,
---------------------------- -------------
there are no loans, leases, royalty agreements or other continuing transactions
between Radish, on the one hand, and any affiliate of Radish, any of the
stockholders of Radish, any affiliate of any stockholder of Radish, or any
Agreement and Plan of Merger -- Page 17
member of any such stockholder's family, on the other hand. To the knowledge of
Radish, none of the officers or directors of Radish (a) has any material direct
or indirect interest in any entity which does business with Radish; (b) has any
direct or indirect interest in any property, asset or right which is used by
Radish in the conduct of its business; or (c) has any contractual relationship
with Radish other than such relationships which occur from being an officer,
director or stockholder of Radish.
3.19 Insurance Coverage. Schedule 3.19 sets forth an accurate and complete
------------------ -------------
list of all insurance policies and fidelity bonds covering the assets, business,
equipment, properties, operations, employees, officers and directors of Radish.
There is no claim by Radish pending under any of such policies or bonds as to
which coverage has been questioned, denied or disputed by the underwriters of
such policies or bonds. All premiums payable under all such policies and bonds
have been paid, and Radish has otherwise complied in all material respects with
the terms and conditions of all such policies and bonds. Such policies of
insurance and bonds (or other policies and bonds providing substantially similar
insurance coverage) have been in effect since March 31, 1992 and remain in full
force and effect. In the opinion of Radish, such insurance is adequate to cover
all reasonably foreseeable risks associated with the business of Radish and is
in such amounts, with such deductibles and with such other terms as is prudent
for a business such as that of Radish. Radish has no knowledge of any threatened
termination of, or has received written notice of, any premium increase with
respect to, any of such policies or bonds.
3.20 Compliance with Laws; No Defaults. (a) Except as disclosed in
---------------------------------
Schedule 3.20, Radish is not in violation of any applicable provisions of any
-------------
law, statute, ordinance, regulation, judgment, order, injunction, permit,
license, certificate or other authorization, or its governing instruments,
except for violations that have not had and could not reasonably be expected to
have a Material Adverse Effect on Radish.
(b) Radish is not in material default under, and to its knowledge no
condition exists that with notice or lapse of time or both would constitute a
material default under, any applicable law, statute, ordinance, regulation,
judgment, order, injunction, permit, license, certificate or other
authorization, or its governing instruments.
(c) Except as set forth on Schedule 3.20, Radish is in compliance with
-------------
all currently applicable laws respecting employment and employment practices,
terms and conditions of employment and wages and hours, and is not engaged in
any unfair labor practice, failure to comply with which or engagement in which,
as the case may be, has had, or could reasonably be expected to have, a Material
Adverse Effect on Radish. There is no unfair labor practice complaint pending
or, to the knowledge of Radish, threatened against Radish before the National
Labor Relations Board.
3.21 Finders' Fees. There is no investment banker, broker, finder or other
-------------
intermediary that has been retained by or is authorized to act on behalf of
Radish who might be entitled to any fee or commission from SystemSoft, the
Company, Radish or any other person upon consummation of the transactions
contemplated by this Agreement.
3.22 Environmental Matters. (a) Except as disclosed on Schedule 3.22,
--------------------- -------------
(i) no notice, notification, demand, request for information,
citation, summons, complaint or order has been issued, no complaint has been
filed, no penalty has been assessed and no investigation or review is pending
or, to Radish's knowledge, threatened by any governmental entity or other
person with respect to any (A) alleged violation by Radish of any
Environmental
Agreement and Plan of Merger -- Page 18
Law (as defined below) or liability thereunder, (B) alleged failure by
Radish to have any permit, certificate, license, approval, registration
or authorization required under any Environmental law in connection with
the conduct of its business or (C) Release of Hazardous Substances;
(ii) no polychlorinated biphenyls, radioactive material, urea
formaldehyde, lead, asbestos, asbestos-containing material or underground
storage tank (active or abandoned) is or was present at any property now
owned or leased by Radish or was present at any property owned or leased
by Radish in the five years preceding the date of this Agreement at, or
at any time before, the time such property was sold or such lease was
terminated by Radish; and
(iii) there are no Environmental Liabilities (as defined below) that
have had or may reasonably be expected to have a Material Adverse Effect
on Radish.
(b) There has been no environmental investigation, study, audit,
test, review or other analysis conducted of which Radish has possession, or to
the knowledge of Radish, to which it has access, in relation to the current or
prior business of Radish or any property or facility now or previously owned or
leased by Radish which has not been delivered to SystemSoft at least five days
prior to the date hereof .
(c) Radish has not transported or arranged for the transportation
(directly or indirectly) of any Hazardous Substance to any location which is
listed or, to Radish's knowledge, proposed for listing under CERCLA, or on any
similar state list or which is the subject of Federal, state or local
enforcement actions or, to Radish's knowledge, other investigations which may
lead to claims for clean-up costs, remedial work, damages to natural resources
or for personal injury claims, including, but not limited to, claims under
CERCLA or analogous state environmental clean-up laws.
(d) "CERCLA" means the Comprehensive Environmental Response,
------
Compensation and Liability Act of 1980, as amended.
(e) "Environmental Laws" means any and all laws or regulations,
------------------
judicial decisions, orders or permits relating to the environment or to
emissions, discharges or releases of pollutants, contaminants, petroleum or
petroleum products, chemicals or industrial, toxic, radioactive or hazardous
substances or wastes into the environment including, without limitation, ambient
air, surface water, ground water, or land, or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, petroleum or petroleum
products, chemicals or industrial, toxic, radioactive or hazardous substances
medical wastes or other wastes or the clean-up or other remediation thereof.
(f) "Environmental Liabilities" means all liabilities arising in
-------------------------
connection with or in any way relating to the assets of Radish or Radish's use
or ownership thereof, whether vested or unvested, contingent or fixed, actual or
potential, which (i) arise under or relate to Environmental Laws or arise in
connection with or relate to any matter disclosed or required to be disclosed in
Schedule 3.22 and (ii) arise from or relate in any way to actions occurring or
-------------
conditions existing before the Closing Date.
(g) "Hazardous Substance" means petroleum products or hazardous
-------------------
substances as defined in Section 101 of CERCLA.
(h) "Release" has the meaning specified in 42 U.S.C. (S)
9601(22).
(i) For purposes of this Section, the term "Radish" shall
include any business or business entity (including a
corporation) which is a predecessor, in whole or in part, of
Radish.
3.23 Intercompany Arrangements; Conflicts. (a) Except as set forth on
------------------------------------
Schedule 3.23, Radish does not own any note, bond, debenture or other
-------------
indebtedness, or is otherwise a creditor, of any stockholder of Radish or any of
their affiliates. Except as disclosed in Schedule 3.23, there has not been any
-------------
payment by Radish to any stockholder of Radish (except for compensation to
employees of Radish in their capacities as such) or any of their affiliates,
charge by any stockholder of Radish or any of their affiliates to Radish, or any
other transaction between Radish and any stockholder of Radish or any of their
affiliates.
(b) Except as set forth on Schedule 3.23, none of the officers or
-------------
directors of Radish (i) has any material direct or indirect interest in any
entity which does business with Radish; (ii) has any direct or indirect interest
in any property, asset or right which is used by Radish in the conduct of its
business; or (iii) has any contractual relationship with Radish other than such
relationships that arise from being an officer, director or stockholder of
Radish.
3.24 Employee Plans. (a) Radish has set forth on Schedule 3.24 all
-------------- -------------
employee benefit plans (as defined in Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA")) and all bonus, stock option,
-----
stock purchase, incentive, deferred compensation, supplemental retirement,
severance insurance (including any self-insured or post-retirement
arrangements), disability, vacation, profit-sharing and other similar employee
benefit plans, arrangements, policies or agreements, and all unexpired severance
agreements, written or otherwise, for the benefit of, or relating to, any
current or former employee of Radish or any trade or business (whether or not
incorporated) which, together with Radish would be treated as a single employer
under Section 414 of the Code (an "ERISA affiliate"), (together, the "Radish
--------------- ------
Employee Plans").
--------------
(b) With respect to each Radish Employee Plan, Radish has made
available to SystemSoft, a true and correct copy of (i) the most recent annual
report (Form 5500) filed with the Internal Revenue Service ("IRS"), (ii) such
---
Radish Employee Plan, (iii) each trust agreement and group annuity contract, if
any, relating to such Radish Employee Plan, (iv) the most recent actuarial
report or valuation relating to a Radish Employee Plan subject to Title IV of
ERISA, if any and (v) an accurate summary plan description of such Radish
Employee Plan.
(c) With respect to the Radish Employee Plans, individually and
in the aggregate, no event has occurred, and to the knowledge of Radish, there
exists no condition or set of circumstances in connection with which Radish
could be subject to any liability that is reasonably likely to have a Material
Adverse Effect on Radish, under ERISA, the Code or any other applicable law.
(d) Each Radish Employee Plan which is intended to be qualified
under Section 401(a) of the Code is so qualified and has been so qualified
during the period from its adoption to date, and each trust forming a part
thereof is exempt from tax pursuant to Section 501(a) of the Code. Radish has
furnished to SystemSoft copies of the most recent Internal Revenue Service
determination letters with respect to each such plan.
(e) Each Radish Employee Plan has been maintained in 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 Radish Employee Plan.
(f) Neither Radish nor any of its ERISA affiliates maintains or
has ever maintained or contributed to any "multiemployer plan" (as that term is
defined in Section 3(37) of ERISA) or any plan subject to Title IV of ERISA. No
"prohibited transaction" (as that term is defined in Section 406 of ERISA or
Section 4975 of the Code) has occurred with respect to any Radish Employee Plan.
There is no contract, agreement, plan or arrangement covering any employee or
former employee of Radish or any of its ERISA affiliates that, individually or
collectively, could give rise to the payment of any amount that would not be
deductible pursuant to the terms of Section 280G of the Code. No tax under
Section 4980B of the Code has been incurred in respect to any Radish Employee
Plan that is a group health plan, as defined in Section 5000(b)(1) of the Code.
With respect to the employees and former employees of Radish or any of its ERISA
affiliates, there are no employee post-retirement medical or health plans in
effect, except as required by Section 4980B of the Code.
(g) With respect to the Radish Employee Plans, individually and
in the aggregate, there are no funded benefit obligations for which
contributions have not been made or properly accrued and there are no unfunded
benefit obligations which have not been accounted for by reserves, or otherwise
properly footnoted in accordance with generally accepted accounting principles,
on the financial statements of Radish, which obligations are reasonably likely
to have a Material Adverse Effect on Radish.
(h) Except as set forth in Schedule 3.24, Radish is not a party
-------------
to any oral or written (i) union or collective bargaining agreement, (ii)
agreement with any officer or any other key employee of Radish, the benefits of
which are contingent, or the terms of which are materially altered, upon the
occurrence of a transaction involving Radish of the nature contemplated by this
Agreement, (iii) agreement with any officer of Radish providing any term of
employment or compensation guarantee extending for a period longer than one year
from the date hereof or for the payment of compensation in excess of $100,000
per annum, or (iv) agreement or plan, including any stock option plan, stock
appreciation right plan, restricted stock plan or stock purchase plan, any of
the benefits of which will be increased, or the vesting of the benefits of which
will be accelerated, by the occurrence of any of the transactions contemplated
by this Agreement or the value of any of the benefits of which will be
calculated on the basis of any of the transactions contemplated by this
Agreement.
3.25 Other Information. This Agreement and the Schedules hereto,
-----------------
taken as a whole, do not contain an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements contained
therein not misleading. The financial projections relating to Radish previously
delivered to SystemSoft constitute Radish's good faith estimate as of the date
of this Agreement of the information purported to be shown therein, and Radish
is not aware of any fact or information that would lead it to reasonably believe
that such projections are incorrect or misleading in any material respect.
SystemSoft recognizes that such projections are based on the assumptions
described therein and that such assumptions may not prove to be correct and,
accordingly, such projections may not prove to be correct.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SYSTEMSOFT AND THE COMPANY
SystemSoft and the Company hereby represent and warrant to Radish as follows:
4.1 Corporate Existence and Power. Each of SystemSoft and the Company
-----------------------------
is a corporation duly incorporated, validly existing and in good standing under
the laws of the State of Delaware and has all corporate power and authority
necessary to enable it to own, lease or otherwise hold its properties and assets
and to carry on its business as now conducted and proposed to be conducted.
SystemSoft is duly qualified to do business as a foreign corporation and is in
good standing in each jurisdiction where the character of the property owned or
leased by it or the nature of its activities makes such qualification necessary,
except for those jurisdictions where the failure to be so qualified would not
have a material adverse effect upon the financial condition, results of
operations, business, properties, assets or operations of SystemSoft and its
subsidiaries, taken as a whole (a "Material Adverse Effect on SystemSoft").
-------------------------------------
4.2 Corporate Authorization. The execution, delivery and performance
-----------------------
by SystemSoft and the Company of this Agreement, the Participation Agreement,
the Registration Rights Agreement and the Escrow Agreement and the consummation
by SystemSoft and the Company of the Merger and other transactions contemplated
hereby and thereby, are within the corporate power and authority of SystemSoft
and the Company, respectively, and, have been duly authorized by all necessary
corporate action. Each of the Agreement, the Participation Agreement, the
Registration Rights Agreement and the Escrow Agreement has been duly and validly
authorized, executed and delivered by SystemSoft and the Company and constitutes
a valid and binding obligation of SystemSoft and the Company, enforceable
against SystemSoft and the Company in accordance with its terms.
4.3 Governmental Authorization. The execution, delivery and
--------------------------
performance by SystemSoft and the Company of this Agreement, and the
consummation of the Merger and other transactions contemplated by this Agreement
by SystemSoft and the Company, do not and will not require any consent, approval
or action by or in respect of, or any declaration, filing or registration with,
any Governmental Authority, other than routine filings with the Secretary of
State of the State of Delaware necessary to consummate the Merger, and
compliance with the applicable requirements of the Securities Act of 1933 (the
"Securities Act"), the Securities Exchange Act of 1934 (the "Exchange Act") and
-------------- ------------
any applicable state securities and blue sky laws in connection with the
offering, sale and delivery of the shares of SystemSoft Common to be issued in
the Merger.
4.4 Non-Contravention. The execution, delivery and performance by
-----------------
SystemSoft and the Company of this Agreement, and the consummation of the Merger
and other transactions contemplated by this Agreement by SystemSoft and the
Company, do not and will not, with or without the giving of notice, the lapse of
time or both: (i) contravene or conflict with the certificates of incorporation
or by-laws of SystemSoft or the Company, or (ii) assuming compliance with the
matters referred to in Section 4.3, contravene or conflict with or constitute a
violation of any provision of any law, rule, regulation, judgment, injunction,
order or decree binding upon or applicable to SystemSoft or and the Company
4.5 Capitalization. (a) As of December 4, 1996, the authorized
--------------
capital stock of SystemSoft consisted of (i) 1,000,000 shares of Preferred
Stock, par value $.01 per share, none of which were issued and outstanding or
held in the treasury of SystemSoft, and (ii) 90,000,000 shares of Common Stock,
of which 22,731,854 shares were issued and outstanding and no shares were held
in the treasury of SystemSoft. As of November 30, 1996, there were reserved for
issuance under SystemSoft's various
stock plans (the "SystemSoft Plans") an aggregate of up to 4,243,124 shares of
----------------
Common Stock. Except as provided in the immediately preceding sentence of this
Section 4.5, as of October 31, 1996 there were no outstanding options, warrants,
calls, rights, commitments or agreements to which SystemSoft is a party or by
which SystemSoft is bound obligating SystemSoft to (x) issue, deliver or sell,
or cause to be issued, delivered or sold, additional shares of capital stock of
SystemSoft or (y) grant, execute or enter into any such option, warrant, call,
right, commitment or agreement.
(b) The authorized capital stock of the Company consists of 100
shares of Common Stock, par value $.01 per share, all of which are issued and
outstanding and owned of record by SystemSoft. All issued and outstanding shares
of SystemSoft Common and Common Stock, par value $.01 per share, of the Company
are validly issued, fully paid and nonassessable, and have not been issued in
violation of any preemptive, first refusal or other subscription rights of any
stockholder of SystemSoft, the Company or any other person.
4.6 SEC Documents. SystemSoft has made available to Radish a
-------------
true and complete copy of the following SystemSoft documents: (i) its annual
report on Form 10-K for the fiscal year ended January 31, 1996; (ii) its
quarterly reports on Form 10-Q for the fiscal quarters ended April 30, 1996,
July 31, 1996 and October 31, 1996; (iii) its current reports on Form 8-K dated
July 17, 1996; (iv) the proxy statements dated May 15, 1996 and June 28, 1996;
and (v) each report, schedule, registration statement and definitive proxy filed
by SystemSoft with the Commission since January 31, 1996 and publicly available
prior the Effective Date (collectively, the "SystemSoft SEC Documents"), which
------------------------
are all of the documents (other than preliminary material) that SystemSoft was
required to file with the Securities and Exchange Commission (the "Commission")
----------
since such date. As of their respective dates, the SystemSoft SEC Documents
complied in all material respects with the requirements of the Securities Act,
or the Exchange Act, as the case may be, and the rules and regulation of the
Commission thereunder applicable to such SystemSoft SEC Documents, and none of
the SystemSoft SEC Documents, as of their respective dates, contained any untrue
statement of a material fact or omitted 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. None of SystemSoft's
subsidiaries is required to file any forms, reports or other documents with the
Commission. The consolidated financial statements of SystemSoft and its
subsidiaries included in the SystemSoft SEC Documents complied as to form in all
material respects with the published rules and regulations of the Commission
with respect thereto, were prepared in accordance with GAAP applied on a
consistent basis during the periods involved (except as may be indicated in the
notes thereto or, in the case of the unaudited statements, as permitted by Rule
10-01 of Regulation S-X) and fairly presented in accordance with applicable
requirements of GAAP (subject, in the case of the unaudited statements, to
normal recurring adjustments, none of which will be material) the consolidated
financial position of SystemSoft and its subsidiaries as of their respective
dates and the consolidated results of operations and the consolidated cash flows
of SystemSoft and its subsidiaries for the periods presented therein.
4.7 SystemSoft Common. The shares of SystemSoft Common to be issued
-----------------
and exchanged for shares of Radish Common and Series D Preferred in the Merger
will, at the Effective Time, be duly authorized, validly issued, fully paid and
nonassessable and subject to no preemptive rights.
Agreement and Plan of Merger -- Page 23
ARTICLE V
COVENANTS
5.1 Mutual Covenants and Agreements. Each of the parties hereby
-------------------------------
covenants and agrees with the other parties as follows:
(a) Cooperation. It shall cooperate fully with the other
-----------
parties hereto in furnishing any information or performing any action reasonably
requested by any such party, which information or action is necessary to the
successful consummation of the transactions contemplated by this Agreement or is
necessary, appropriate or desirable for the corporate purposes of SystemSoft.
Subject to its further rights under this Agreement, it shall use all reasonable
efforts to cause the Closing to occur at the earliest practicable time.
(b) Other Required Information. It shall furnish to the other
--------------------------
parties hereto any application or statement, and all information concerning
itself and its subsidiaries as is required to be set forth in any application or
statement, to be filed with any Governmental Authority in connection with the
transactions contemplated by this Agreement, or otherwise.
(c) Confidentiality. Radish and SystemSoft have agreed in a
---------------
confidentiality agreement dated October 8, 1996 (the "Confidentiality
---------------
Agreement") to, among other things, protect the confidential information of the
---------
other party. The Company and SystemSoft each hereby affirm each of their
obligations under such agreement. If this Agreement is terminated in accordance
with Section 8.1 hereof, SystemSoft shall, and shall cause its agents,
accountants, advisors, counsel and other representatives to deliver to Radish
all documents and other material, and all copies thereof, obtained by SystemSoft
or on its behalf from Radish 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 any
confidential information contained therein. If this Agreement is terminated in
accordance with Section 8.1 hereof, Radish shall, and shall cause its agents,
accountants, advisors, counsel and other representatives to, deliver to
SystemSoft all documents and other material, and all copies thereof, obtained by
Radish or on its behalf or by a stockholder of Radish from SystemSoft 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 any confidential information contained therein.
(d) Publicity. Except as otherwise required by applicable law
---------
or by any applicable rules of any securities exchange or market, Radish shall
not issue any press release or make any other public statement without obtaining
the prior approval of SystemSoft.
(e) Miscellaneous Agreements and Consents. Subject to the
-------------------------------------
terms and conditions provided in this Agreement, it shall use all reasonable
efforts to take, or cause to be taken, all action, and to do, or cause to be
done, all things necessary, appropriate or desirable under applicable laws and
regulations to consummate the transactions contemplated by this Agreement. It
will, and will cause each of its subsidiaries to, use their respective
reasonable efforts to obtain consents of all third parties and Governmental
Authorities necessary, appropriate or desirable for the consummation of the
transactions contemplated by this Agreement.
Agreement and Plan of Merger -- Page 24
(f) Certain Tax and Accounting Matters. It shall not, either
----------------------------------
before or after the consummation of the Merger, take any action which would
prevent the Merger from qualifying as a tax-free reorganization under Section
368(a) of the Code.
(g) Radish Stock Options. At or prior to the Effective Time,
--------------------
SystemSoft and Radish shall take all action necessary to cause the assumption by
SystemSoft as of the Effective Time of the options to purchase Radish Common
outstanding as of the Effective Time (the "Outstanding Options"). Each of the
Outstanding Options shall be converted without any action on the part of the
holder thereof into an option to purchase shares of SystemSoft Common as of the
Effective Time. The number of shares of SystemSoft Common that the holder of an
assumed Outstanding Option shall be entitled to receive upon the exercise of
such option shall be a number of whole and fractional shares determined by
multiplying the number of shares of Radish Common subject to such option,
determined immediately before the Effective Time, by the Exchange Ratio
applicable to shares of Radish Common. The option price of each share of
SystemSoft Common subject to an assumed Outstanding Option shall be the amount
(rounded up to the nearest whole cent) obtained by dividing the exercise price
per share of Radish Common at which such option is exercisable immediately
before the Effective Time by the Common Exchange Ratio applicable to shares of
Radish Common. The assumption and substitution of Outstanding Options as
provided herein shall not give the holders of such options additional benefits
which they did not have immediately prior to the Effective Time or relieve the
holders of any obligations or restrictions applicable to their options or the
shares obtainable upon exercise of the options. Only whole shares of SystemSoft
Common shall be issued upon exercise of any Outstanding Option, and in lieu of
receiving any fractional share of SystemSoft Common, the holder of such option
shall receive in cash the fair market value of the fractional share, net of the
applicable exercise price of the fractional share and applicable withholding
taxes. SystemSoft shall (i) reserve out of its authorized but unissued shares of
Common Stock sufficient shares to provide for the exercise of the Outstanding
Options and (ii) use all reasonable efforts to register under the Securities
Act, as promptly as practicable after the Effective Time, those shares of
SystemSoft Common to be issued upon the exercise of the Outstanding Options for
a period ending on the first date by which all Outstanding Options have been
exercised, which registration shall initially be effective under a registration
statement on Form S-8 or such other form as may be permitted under the
Securities Act.
(h) Resale Registration Statement. Promptly but not later than
-----------------------------
fifteen (15) days after the Effective Time, SystemSoft shall file a registration
statement (the "Resale Registration Statement") on Form S-3 registering the
shares of SystemSoft Common issued to the stockholders of Radish upon
consummation of the Merger under the Securities Act and shall use all reasonable
efforts to cause the Resale Registration Statement to become effective as
expeditiously as possible and to remain effective until the second anniversary
of the Effective Time, all as more fully described in the Registration Rights
Agreement.
5.2 Certain Covenants of Radish. Except as set forth on
---------------------------
Schedule 5.2, Radish hereby covenants and agrees with SystemSoft and the
Company as follows:
(a) Preservation of Business Organization. Radish shall use
-------------------------------------
all reasonable efforts to preserve without material impairment the business
organization of Radish and its goodwill as to payors, providers, suppliers,
distributors, clients and others having business relations with Radish.
(b) Carry on in Regular Course. Radish shall carry on its
--------------------------
business in the ordinary course in a manner consistent with its past practices.
Agreement and Plan of Merger -- Page 25
(c) Consents. Radish shall use all reasonable efforts to obtain
--------
consents in writing to the transactions contemplated by this Agreement and/or
such amendments, assignments or modifications of such documents or instruments
as may be required in order that the transactions contemplated by this Agreement
shall not result in any default with respect to any law, rule, regulation,
order, decree, license, agreement, contract, commitment or instrument to which
Radish is a party or by which Radish, or any of its assets is bound.
(d) Capital Stock. Radish shall not redeem, purchase or
-------------
otherwise acquire, any Radish Securities, or agree to do any of the foregoing.
Radish shall not accelerate, amend or change the period of exercisability of
options or restricted stock granted under employee stock plans or authorize cash
payments in exchange for any options granted under any of such plans. Radish
shall not issue, deliver, sell or grant or authorize or propose the issuance,
delivery, sale or grant of, or purchase or propose the purchase of, any shares
of its capital stock or securities convertible into, or subscriptions, rights,
warrants or options to acquire, or other agreements or commitments of any
character obligating it to issue any such shares or other convertible
securities, other than the issuance by Radish of shares of Radish Common
pursuant to the exercise of stock options or warrants therefor outstanding as of
the date of this Agreement.
(e) Other Actions. Except as contemplated herein or by any
-------------
other agreement entered into in connection herewith, without the prior written
consent or approval of SystemSoft, Radish shall not (i) amend its certificate of
incorporation or by-laws; (ii) declare, set aside or pay any dividend or
otherwise make a distribution with respect to any shares of capital stock of
Radish, or repurchase, redeem or otherwise acquire any outstanding shares of
capital stock or other securities of, or other equity or ownership interests in,
Radish; (iii) amend any material term of any outstanding security of Radish ;
(iv) incur, assume or guarantee any indebtedness for borrowed money other than
in the ordinary course of business and in amounts and on terms consistent with
past practices, but in any event not exceeding an aggregate of $10,000; (v)
create or assume any Lien on any asset, other than Liens that do not in the
aggregate materially detract from the value of such assets or materially impair
the use thereof in the operation of the business of Radish; (vi) make any loan,
advance or capital contributions to or investment in any person; (vii) acquire
any capital assets or any other investments for aggregate consideration in
excess of $10,000; (viii) sell lease, pledge, transfer or dispose of any capital
assets for aggregate consideration in excess of $10,000; (ix) enter into any
transaction or make any commitment or any contract or agreement relating to its
assets or business (including the acquisition or disposition of any assets) or
relinquish any contract or other right, in either case, material to Radish,
other than transactions, commitments and relinquishments in the ordinary course
of business consistent with past practices and those contemplated by this
Agreement; (x) other than in the ordinary course of business, make or change any
election in respect of Taxes, adopt or change any method of accounting or
accounting practice in respect of Taxes, enter into any closing agreement,
settle any claim in respect of Taxes, or consent to any consent to any extension
or waiver of the limitation period applicable to any claim or assessment in
respect of Taxes; (xi) grant any severance or termination pay to any director,
officer or employee of Radish, enter into any employment, severance, management,
consulting, deferred compensation or other similar agreement (or any amendment
to any such existing agreement) with any director, officer or employee of
Radish, change the benefits payable under existing severance or termination pay
policies or employment, severance, management, consulting or other similar
agreements or change the compensation, bonus or other benefits payable to
directors, officers or employees of Radish, other than increases in the ordinary
course of business of the compensation of the employees of Radish; (xii) enter
into any transaction with any of its stockholders or any affiliates of any of
its stockholders, other than in
Agreement and Plan of Merger -- Page 26
the ordinary course of, and pursuant to the reasonable requirements of, its
business and upon terms that are no less favorable to Radish than Radish could
obtain in a comparable transaction with a person who was not such a stockholder
or an affiliate of such a stockholder or other than as contemplated by this
Agreement; or (xiii) agree to do any of the foregoing.
(f) Access. Radish shall permit officers, employees, agents,
------
attorneys and accountants and other persons designated by SystemSoft full access
after reasonable notice during normal business hours to the properties, books,
contracts, commitments, tax returns, examination reports of the Internal Revenue
Service and other records of Radish. Unless prohibited by law or contract, such
designees of SystemSoft shall be furnished with true, accurate and complete
copies of such contracts, commitments and other records and all other
information with respect to the assets and business of Radish as such designees
may reasonably request.
(g) Documents and Information to be Furnished. Radish shall
-----------------------------------------
deliver to SystemSoft promptly after such documents are available Radish's
unaudited monthly financial reports with respect to periods ending after the
date hereof and all other documents, financial statements, budgets, proxy or
information statements, reports, correspondence, notices and other items Radish
delivers, or is required to deliver, to any of its stockholders.
(h) Stockholder Consent. Radish shall take all action necessary
-------------------
in accordance with applicable law to obtain the written consent of its
stockholders owning 100% of each class or series of the issued and outstanding
Radish Preferred and of its stockholders owning at least 60% of Radish's issued
and outstanding Radish Common entitled to vote on this matter (the "Consent") no
-------
later than December 19, 1996, (the "Stockholder Consent") for the purpose of
-------------------
approving and adopting this Agreement (including the transactions contemplated
hereby). On or before December 13, 1996 Radish shall mail to each stockholder
who was a stockholder on the record date for determining stockholders entitled
to vote, (i) an information statement (the "Information Statement") with respect
---------------------
to the matters to be submitted for stockholder approval in the Stockholder
Consent, in which its Board of Directors shall recommend to its stockholders the
adoption of this Agreement (including the transactions contemplated hereby);
(ii) the Consent; and (iii) a notice that appraisal rights are available for the
shares of Radish Common (treating shares of Radish Preferred on an as-converted
basis) held by each such stockholder of Radish, together with a copy of Section
262 of the Delaware Corporation Law, in satisfaction of Radish's obligations
under Section 262(d)(2) of the Delaware Corporation Law. In addition, the
Information Statement shall be accompanied by such other information provided by
SystemSoft as SystemSoft deems necessary in order to provide for the offer and
sale of the SystemSoft Common to be issued in the Merger to be exempt from any
applicable registration or qualification requirements under either federal or
state securities or "Blue Sky" laws. Radish shall use all reasonable efforts to
obtain all votes and approvals of its stockholders necessary for the approval
and adoption of this Agreement under the Delaware Corporation Law (including the
transactions contemplated hereby).
(i) Notices of Certain Events. Radish shall promptly notify
-------------------------
SystemSoft of:
(i) any notice or other communication from any person alleging
that the consent of such person is or may be required in connection with
the transactions contemplated by this Agreement;
(ii) any notice or other communication from any Governmental
Authority in connection with the transactions contemplated by this
Agreement;
Agreement and Plan of Merger -- Page 27
(iii) any actions, suits, claims, investigations or proceedings
commenced relating to or involving or otherwise affecting Radish that,
if pending on the date of this Agreement, would have been required to
have been disclosed pursuant to Article III or that relate to the
consummation of the transactions contemplated by this Agreement; and
(iv) any matter arising and discovered after the date of this
Agreement that, if existing or known on the date of this Agreement,
would have been required to be disclosed pursuant to this Agreement or
the Participation Agreement, or that constitutes a breach or prospective
breach of this Agreement or the Participation Agreement by Radish, the
Major Stockholders or any of their affiliates.
(j) Accuracy of Representations and Warranties. Radish shall
------------------------------------------
not (a) take or agree or commit to take any action that would make any
representation and warranty of Radish hereunder inaccurate in any respect at, or
as of any time prior to, the Closing Date or (b) omit or agree or commit to omit
to take any action necessary to prevent any such representation or warranty from
being inaccurate in any respect at any such time.
(k) Termination of Agreements. Radish shall terminate (and pay
-------------------------
any sums due thereunder), effective immediately prior to the Effective Time, all
agreements among Radish and any of its securityholders or optionholders, or
among any Radish securityholders or optionholders, providing for registration
rights, rights of first refusal or co-sale, relating to the voting of Radish
securities or requiring Radish to obtain the consent or approval of any such
securityholders prior to taking or failing to take any action, including without
limitations: The Series A Convertible Preferred Stock Purchase Agreement dated
March 31, 1992 by and among Radish and the other parties named therein; the
Registration Rights Agreement dated March 31, 1992 by and between Radish and the
other parties names therein; the Founder Stock Restriction Agreement dated March
31, 1992 by and between Radish, Xxxxxxx X. Xxxxx and the other parties named
therein; the Founder Stock Restriction Agreement dated March 31, 1992 by and
between Radish, Xxxxxxx X. Xxxxxxxx and the other parties named therein; the
Series B Convertible Preferred Stock Purchase Agreement dated February 15, 1994
by and between Radish and the other parties named therein; the Amended and
Restated Registration Rights Agreement dated February 15, 1994 by and between
Radish and the other parties named therein; the Amended and Restated Founder
Stock Restriction Agreement dated February 15, 1994 by and between Radish,
Xxxxxxx X Xxxxxxxx and the other parties named therein; the Amended and Restated
Founder Stock Restriction Agreement dated February 15, 1994 by and between
Radish, Xxxxxxx X. Xxxxx and the other parties named therein; Side Letter
Agreement granting a Right of First Refusal dated June 17, 1994 by and between
Radish and the other parties named therein; the Series C Convertible Preferred
Stock Purchase Agreement dated February 17, 1995 by and between Radish and the
other parties named therein; the Amended and Restated Registration Rights
Agreement dated February 17, 1995 by and between Radish and the other parties
named therein; the Participation Agreement dated February 17, 1995 by and
between Radish and the other parties named therein; the Letter Agreement dated
May 19, 1995 by and between Radish and the other parties named therein; the
Warrant Purchase Agreement dated August 31, 1995 by and between Radish and
Packard Xxxx Electronics, Inc.; the Series D Convertible Preferred Stock and
Warrant Purchase Agreement dated April 30, 1996 by and between Radish and the
other parties named therein; the Amended and Restated Registration Rights
Agreement dated April 30, 1996 by and between Radish and the other parties named
therein; the Amended and Restated Founder Stock Restriction Agreement dated
April 30, 1996 by and between Radish, Xxxxxxx X. Xxxxx and the other parties
named therein; and
Agreement and Plan of Merger -- Page 28
the Amended and Restated Founder Stock Restriction Agreement dated April 30,
1996 by and between Radish, Xxxxxxx X. Xxxxxxxx and the other parties named
therein.
(l) Warrants. Radish shall either cause the exercise of,
--------
surrender to Radish or otherwise terminate all of the Radish Warrants (as
defined below) prior to the Closing, with all rights to purchase Radish Common
or Radish Preferred under the Radish Warrants or any registration rights
relating to the shares of Radish Common or Radish Preferred issuable upon
exercise of the Radish Warrants relinquished in a manner satisfactory to
SystemSoft. "Radish Warrants" shall mean (i) the warrants to purchase an
aggregate of 626,468 shares of Radish Common with an exercise price of $0.10 and
issued on February 15, 1994; (ii) the warrant to purchase 40,000 shares of
Series B Preferred with an exercise price of $1.00 and issued on April 24, 1994;
(iii) the warrants to purchase an aggregate of 114,180 shares of Radish Common
with an exercise price of $0.10 and granted on June 17, 1994; (iv) the warrants
to purchase an aggregate of 1,200,000 shares of Radish Common with an exercise
price of $2.00 and issued on August 31, 1995; (v) the warrant to purchase
600,000 shares of Radish Common with an exercise price of $0.15 and issued on
August 31, 1995; and (vi) the warrants to purchase an aggregate of 1,409,091
shares of Radish Common with an exercise price of $0.22 and issued on April 30,
1996.
(m) No Solicitation. From and after the date of this Agreement
---------------
until the earlier of the Effective Time or termination of this Agreement
pursuant to its terms, Radish shall not, and will instruct its directors,
officers, employees, representatives, investment bankers, agents and affiliates
not to, directly or indirectly, initiate, solicit, encourage or participate in
discussions with, provide information to, or approve a transaction with, any
corporation, partnership, person or other entity or group concerning any merger,
purchase or sale of substantial assets, sale of shares of capital stock (or
securities convertible or exchangeable or otherwise evidencing, or any agreement
or instrument evidencing, the right to acquire capital stock) or similar
transaction involving Radish ( all such transactions being referred to herein as
"Acquisition Proposals"). Radish will immediately cease any and all existing
---------------------
activities, discussions or negotiations with any parties conducted heretofore
with respect to any of the foregoing. Radish will (i) notify SystemSoft as
promptly as practicable if any inquiry or proposal is made or any information or
access is requested in writing in connection with an Acquisition Proposal or
potential Acquisition Proposal and (ii) as promptly as practicable notify
SystemSoft of the significant terms and conditions of any such Acquisition
Proposal. In addition, subject to the other provisions of this Section 5.2(m),
from and after the date of this Agreement until the earlier of the Effective
Time and termination of this Agreement pursuant to its terms, Radish will not,
and will instruct their respective directors, officers, employees,
representatives, investment bankers, agents and affiliates not to, directly or
indirectly, make or authorize any public statement, recommendation or
solicitation in support of any Acquisition Proposal made by any person, entity
or group (other than SystemSoft).
5.3 Covenants of SystemSoft and the Company. SystemSoft and the
---------------------------------------
Company hereby covenant and agree with Radish as follows:
(a) Preservation of Business Organization. SystemSoft shall use
-------------------------------------
all reasonable efforts to cause to preserve without material impairment the
business organization of SystemSoft and its subsidiaries and their goodwill as
to payors, providers, suppliers, distributors, clients and others having
business relations with SystemSoft and its subsidiaries.
(b) Carry on in Regular Course. SystemSoft shall, carry on its
--------------------------
business in the ordinary and usual course, in a manner consistent with its past
practices. Without the prior written consent or approval of Radish, SystemSoft
shall not amend certificate of incorporation or by-laws.
Agreement and Plan of Merger -- Page 29
(c) Consents. SystemSoft shall use all reasonable efforts to
--------
obtain consents in writing to the transactions contemplated by this Agreement
and/or such amendments, assignments or modifications of such documents or
instruments as may be required in order that the transactions contemplated by
this Agreement shall not result in any default with respect to any law, rule,
regulation, order, decree, license, agreement, contract, commitment or
instrument to which SystemSoft is a party or by which SystemSoft or any of its
assets is bound.
(d) Documents and Information to be Furnished. SystemSoft shall
-----------------------------------------
furnish to Radish, promptly after filed with the Commission, its unaudited
quarterly financial reports in the form filed with the Commission on Form 10-Q
prescribed under the Exchange Act and such other reports, statements, documents
and other items SystemSoft delivers, or is required to deliver, to any of its
stockholders.
(e) Notices of Certain Events. SystemSoft shall promptly notify
-------------------------
Radish of:
(i) any notice or other communication from any person
alleging that the consent of such person is or may be required in
connection with the transactions contemplated by this Agreement;
(ii) any notice or other communication from any Governmental
Authority in connection with the transactions contemplated by this
Agreement; and
(iii) any actions, suits, claims, investigations or proceedings
commenced relating to or involving or otherwise affecting SystemSoft or any of
its subsidiaries that, if pending on the date of this Agreement, would have been
required to have been disclosed pursuant to Article IV or that relate to the
consummation of the transactions contemplated by this Agreement.
ARTICLE VI
CLOSING MATTERS
6.1 The Closing. Subject to the satisfaction or waiver of all
-----------
conditions precedent set forth in Article VII, the closing of the Merger (the
"Closing") shall be held at the offices of Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP, 125
-------
Xxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, on December 19, 1996 or as soon as
thereafter as practicable (the "Closing Date"). If any condition in Article VII
------------
is not satisfied in any material respect (or is not duly waived) at the Closing,
any party whose obligations are subject to such condition may extend the period
in which the Closing must be consummated (during which period each other party
shall use its respective reasonable efforts to cause all such conditions to be
satisfied in all material respects). If all conditions are determined to be
satisfied in all material respects (or are duly waived) at the Closing (whether
or not delayed), the Closing shall be consummated by the making of all necessary
filings with the Secretary of State of Delaware under the Delaware Corporation
Law.
6.2 Documents and Certificates. Each of SystemSoft, the Company and
--------------------------
Radish shall use all reasonable efforts, on or prior to the Closing, to execute
and deliver all such instruments, documents or certificates as may be necessary
or advisable, on the advice of counsel, for the consummation at the Closing of
the transactions contemplated by this Agreement or to cause the Effective Time,
subject to consummation at the Closing, to occur as soon as practicable.
Agreement and Plan of Merger -- Page 30
ARTICLE VII
CONDITIONS OF CLOSING
7.1 Conditions to Obligations of SystemSoft, the Company and Radish.
---------------------------------------------------------------
The obligations of each of SystemSoft, the Company and Radish under this
Agreement to cause the Merger to be consummated are, at its option, subject to
the satisfaction of the following conditions:
(a) Governmental Approvals. SystemSoft, the Company and Radish
----------------------
shall have received all necessary approvals of Governmental Authorities of the
transactions contemplated by this Agreement, and each of such approvals shall
remain in full force and effect at the Closing Date. It is understood that none
of such approvals shall be deemed to have been received if any such approval is
subject to satisfaction of or compliance with a Burdensome Condition.
"Burdensome Condition" shall mean the imposition of a material restriction on
--------------------
SystemSoft's or Radish's ability to operate Radish following the Effective Time
or requiring SystemSoft or Radish to dispose of a material amount of the assets
of Radish or SystemSoft or any of their subsidiaries following the Effective
Time. Any of SystemSoft, the Company or Radish may, but is not obligated to,
seek the removal or otherwise satisfactorily resolve the Burdensome Condition.
(b) Litigation. No action, suit, litigation, proceeding or
----------
investigation shall (i) have been formally instituted and be pending with regard
to the Merger or (ii) be threatened by any Governmental Authority with regard to
the Merger which, if resolved substantially in accordance with plaintiff's
demand, would be reasonably likely to have a Material Adverse Effect on
SystemSoft. On the Closing Date, there shall not be in force any order or decree
restraining or enjoining consummation of the Merger or placing any limitation
upon such consummation or to invalidate, suspend or require modification of any
provision of this Agreement.
(c) Nasdaq Listing. The shares of SystemSoft Common to be issued
--------------
and exchanged for shares of Radish Common and Series D Preferred in the Merger
pursuant to this Agreement will, at the Effective Time, be authorized for
listing on the Nasdaq National Market.
(d) Tax Opinion. Radish shall have received a written opinion
-----------
from Ireland, Xxxxxxxxx, Xxxxx & Xxxxxx, P.C. in form and substance satisfactory
to Radish and SystemSoft to the effect that the Merger will constitute a
"reorganization" within the meaning of Section 368(a) of the Code.
7.2 Conditions Applicable to SystemSoft and the Company. The
---------------------------------------------------
obligations of SystemSoft and the Company under this Agreement to cause the
Merger to be consummated are, at their option, subject to the satisfaction of
the following conditions, in addition to the conditions contained in Section
7.1:
(a) Agreements and Covenants. Radish shall have performed or
------------------------
complied in all material respects with all agreements and covenants required by
this Agreement or the Participation Agreement to be performed or complied with
by Radish on or prior to the Closing Date.
(b) Accuracy of Representations and Warranties. The
------------------------------------------
representations and warranties of Radish set forth in Article III shall be true
and correct in all material respects both on the date of this
Agreement and Plan of Merger -- Page 31
Agreement and as of the Closing Date with the same force and effect as if such
representations and warranties were made anew at and as of the Closing Date,
except: (i) to the extent such representations and warranties are by their
express provisions made as of the date of this Agreement or another specified
date; and (ii) for the effect of any activities or transactions which may have
taken place after the date of this Agreement which are contemplated by this
Agreement.
(c) No Material Adverse Change. Since the date of this Agreement,
--------------------------
there shall have been no material adverse change in the financial condition,
results of operations, business, properties, assets or operations of Radish.
(d) Officers' Certificate Concerning This Agreement. Radish shall
-----------------------------------------------
have furnished to SystemSoft and the Company a certificate dated the Closing
Date, signed by its chief executive officer and its chief financial officer, to
the effect that the conditions set forth in Sections 7.2(a) through 7.2(c) have
been satisfied.
(e) Opinion of Counsel. SystemSoft and the Company shall have
------------------
received from counsel to Radish an opinion or opinions dated the Closing Date
substantially in the form set forth in Exhibit E.
---------
(f) Required Consents. The holders of any note, guarantee or
-----------------
other evidence of indebtedness of Radish, the lessors of any material real or
personal property or assets leased by Radish, the parties (other than Radish) to
any other material contract, commitment or agreement to which Radish is a party,
and any other person (other than Governmental Authorities) which owns or has
authority to grant any franchise, license, permit, easement, rights or other
authorization necessary for the business or operations of Radish, to the extent
that their consent or approval of the Merger or any other transactions
contemplated by this Agreement is required under the pertinent lease, contract,
commitment or agreement or other document or instrument or under applicable
laws, rules or regulations for the consummation of the transactions contemplated
hereby in the manner herein provided, shall have granted such consent or
approval and no Burdensome Condition shall exist.
(g) Voting. Holders of not less than 100% of the issued
------
outstanding shares of each class or series of Radish Preferred and the holders
of not less than 60% of the issued and outstanding shares of the Radish Common
shall have voted for, or consented to, the adoption and approval of this
Agreement and the consummation of the Merger.
(h) Performance of Participation Agreement. All the terms,
--------------------------------------
covenants and conditions of the Participation Agreement to be complied with and
performed by Radish and the Major Stockholders on or before the Closing Date
shall have been fully complied with and performed in all material respects.
(i) Termination of Agreements. All agreements among Radish and
-------------------------
any of its securityholders or optionholders, or among any of the Radish
securityholders or optionholders, providing for registration rights, rights of
first refusal, rights of co-sale, an adjustment to the number, or conversion or
exercise price, of any of the shares of capital stock of Radish (other than an
adjustment as a result of a subdivision, combination, reorganization or
reclassification of the shares of capital stock of Radish generally), relating
to the voting of Radish securities or requiring Radish to obtain the consent or
approval of any such securityholders prior to taking or failing to take any
action, including without limitation all of the Agreements listed in Section
5.2(k), shall have been terminated in their entirety or as provided in
Section 5.2(k).
Agreement and Plan of Merger -- Page 32
(j) Warrants. All Radish Warrants shall be either exercised,
--------
surrendered to Radish or otherwise terminated prior to the Closing.
(k) Proceedings. All proceedings to be taken in connection with
-----------
the transactions contemplated by this Agreement and all documents incident
thereto shall be reasonably satisfactory in form and substance to SystemSoft,
and SystemSoft shall have received copies of all such documents and other
evidence as it may reasonably request to establish the consummation of such
transactions and the taking of all proceedings in connection therewith.
(l) Preferred Stock Conversion. All Radish Series A Preferred,
--------------------------
Series B Preferred, Series C Preferred and 74.35% of the Series D Preferred
shall have been converted into shares of Radish Common immediately prior to the
Effective Time.
(m) Tax Certificate. Radish shall have delivered to SystemSoft a
---------------
clearance certificate or similar document(s) which may be required by any tax
authority to relieve SystemSoft of any obligation to withhold Taxes in
connection with the transactions set forth in this Agreement. Radish shall have
paid any sales, use, transfer and documentary Taxes and recording and filing
fees applicable to the transactions set forth in this Agreement, and any such
amounts paid by Radish shall reduce the number of shares of SystemSoft Common
Stock to be delivered hereunder. Radish shall have delivered to SystemSoft a
properly executed statement satisfying the requirements of Treasury Regulation
Sections 1.897-2(h) and 1.1445-1(c)(3) in a form reasonably acceptable to
SystemSoft.
(n) Phoenix Waiver. Radish shall have obtained a waiver from
-------
Phoenix Leasing Incorporated of any Event of Default under that certain Senior
Loan and Security Agreement dated May 24, 1994 by and between Radish and Phoenix
that would be triggered by the Merger or other events contemplated by this
Agreement.
(o) Employee Agreements. Xxxxx Xxxxx, Xxxxx Xxxxxxxxx, Xxxxxx
-------------------
Cullen and Xxxxxxx X. Xxxxxxxx, shall have executed Noncompetition,
Nondisclosure and Developments Agreement in form satisfactory to SystemSoft.
7.3 Conditions Applicable to Radish. The obligations of Radish under
-------------------------------
this Agreement to cause the Merger to be consummated are, at its option, subject
to the satisfaction of the following conditions, in addition to the conditions
contained in Section 7.1:
(a) Agreements and Covenants. SystemSoft and the Company shall
------------------------
have performed or complied in all material respects with all agreements and
covenants required by this Agreement or the Participation Agreement to be
performed or complied with by them on or prior to the Closing Date.
(b) Accuracy of Representations and Warranties. The
------------------------------------------
representations and warranties of SystemSoft and the Company set forth in
Article IV shall have been true and correct in all material respects on the date
of this Agreement and as of the Closing Date with the same force and effect as
if such representations and warranties were made anew at and as of the Closing
Date, except: (i) to the extent such representations and warranties are by their
express provisions made as of the date of this Agreement or another specified
date; and (ii) for the effect of any activities or transactions which may have
taken place after the date of this Agreement which are contemplated by this
Agreement.
Agreement and Plan of Merger -- Page 33
(c) Officers' Certificate Concerning This Agreement. SystemSoft
-----------------------------------------------
shall have furnished to Radish a certificate dated the Closing Date, signed by
the chief executive officer and the chief financial officer of SystemSoft, to
the effect that, the conditions set forth in Sections 7.3(a) through 7.3(c)
hereof have been satisfied.
(d) Opinion of Counsel. Radish shall have received from counsel
------------------
to SystemSoft an opinion or opinions dated the Closing Date substantially in the
form set forth on Exhibit F.
---------
(e) Required Consents. SystemSoft shall have received all
-----------------
consents or approvals of the Merger or any other transactions contemplated by
this Agreement required under any material lease, contract, commitment, note,
guaranty or other evidence of indebtedness of SystemSoft or any of its
subsidiaries, or any lease of any material real property of SystemSoft and its
subsidiaries, or under applicable law for the consummation of the transactions
contemplated hereby.
ARTICLE VIII
TERMINATION
8.1 Termination. This Agreement may be terminated at any time prior to
-----------
the Effective Time of the Merger, whether before or after approval of the Merger
by the stockholders of SystemSoft and Radish:
(a) by mutual written consent duly authorized by the Boards of
Directors of SystemSoft and Radish;
(b) by either Radish or SystemSoft, if the Merger shall not have
been consummated by January 31, 1997; provided, however, that the right to
-----------------
terminate this Agreement under this Section 8.1(b) shall not be available to any
party whose action or failure to act has been a principal cause of or resulted
in the failure of the Merger to occur on or before such date and such action or
failure to act constitutes a breach of this Agreement;
(c) by either Radish or SystemSoft, if a court of competent
jurisdiction or governmental, regulatory or administrative agency or commission
shall have issued an order, decree or ruling or taken any other action (an
"Order"), in any case having the effect of permanently restraining, enjoining or
-----
otherwise prohibiting the Merger, which order, decree or ruling is final and
nonappealable;
(d) by SystemSoft, if the required approvals of the stockholders
of Radish contemplated by this Agreement shall not have been obtained by reason
of the failure to obtain the required vote either upon a vote taken at a meeting
of stockholders duly convened therefor or at any adjournment thereof or by
written consent of the Stockholders;
(e) by SystemSoft, if Radish shall have accepted an Acquisition
Proposal or if the Radish Board of Directors recommends an Acquisition Proposal
to the stockholders of Radish;
(f) by SystemSoft, if the Board of Directors of Radish shall have
withheld, withdrawn or modified in a manner adverse to SystemSoft its
recommendation in favor of approving this Agreement and the consummation of the
Merger;
Agreement and Plan of Merger -- Page 34
(g) by SystemSoft, if there shall have occurred any material
adverse change in the financial condition, results of operations, business,
properties, assets or operations of Radish since the date of this Agreement;
(h) by SystemSoft, upon breach of any representation, warranty,
covenant or agreement on the part of Radish set forth in this Agreement, or if
any representation or warranty of Radish shall have become untrue, in either
case such that the conditions set forth in Section 7.2(a) or Section 7.2(b)
would not be satisfied as of the time of such breach or as of the time such
representation or warranty shall have become untrue, provided, that if such
inaccuracy in Red's representations and warranties or breach by Radish is
curable by Radish through the exercise of its commercially reasonable efforts
within five (5) days of the time such representation or warranty shall have
become untrue or such breach, then SystemSoft may not terminate this Agreement
under Section 8.1(h) during such five-day period provided Radish continues to
exercise such commercially reasonable efforts;
(i) by Radish, upon a breach of any representation, warranty,
covenant or agreement on the part of SystemSoft set forth in this Agreement, or
if any representation or warranty of SystemSoft shall have become untrue, in
either case such that the conditions set forth in Section 7.3(a) or Section
7.3(b) would not be satisfied as of the time of such breach or as of the time
such representation or warranty shall have become untrue, provided, that if such
inaccuracy in SystemSoft's representations and warranties or breach by
SystemSoft is curable by SystemSoft through the exercise of its commercially
reasonable efforts within five (5) days of the time such representation or
warranty shall have become untrue or such breach, then Radish may not terminate
this Agreement under this Section 8.1(i) during such five-day period provided
SystemSoft continues to exercise such commercially reasonable efforts.
8.2 Notice of Termination; Effect of Termination. Any termination of
--------------------------------------------
this Agreement under Section 8.1 above will be effective immediately upon the
delivery of written notice of the terminating party to the other parties hereto.
In the event of the termination of this Agreement as provided in Section 8.1,
this Agreement shall be of no further force or effect, except (i) as set forth
in this Section 8.2, Section 8.3, 8.4 and Article X (Miscellaneous), each of
which shall survive the termination of this Agreement, and (ii) nothing herein
shall relieve any party from liability for any willful breach of this Agreement.
No termination of this Agreement shall affect the obligations of the parties
contained in the Confidentiality Agreement, all of which obligations shall
survive termination of this Agreement in accordance with their terms.
8.3 Fees. Radish shall immediately pay SystemSoft a fee (by wire
----
transfer or cashiers check) of $2,121,600, plus $2,000,000 to cover fees and
expenses of SystemSoft's counsel, accountants and financial advisors), in the
event (i) Radish shall have accepted an Acquisition Proposal; (ii) if the Radish
Board of Directors recommends an Acquisition Proposal to the stockholders of
Radish, (iii) in the event the vote of the stockholders of Radish contemplated
by this Agreement shall not have been obtained by reason of the failure to
obtain the required written consent or vote upon a vote taken at a meeting of
stockholders duly convened therefor or at any adjournment. Payment of the fees
described in this Section 8.3 above shall not be in lieu of (i) damages incurred
in the event of breach of this Agreement; or (ii) any other remedies that
SystemSoft may pursue including, without limitation, pursuant to Section 10.1
hereof (Specific Performance).
8.4 Procedure Upon Termination. In the event of the termination of
--------------------------
this Agreement, the Board or Boards of Directors so terminating may direct its
or their officers not to file the certificate of
Agreement and Plan of Merger -- Page 35
merger in the office of the Secretary of State of the State of Delaware,
notwithstanding favorable action by the stockholders of the Company and Radish.
In the event this Agreement is terminated, the agreements of Radish and
SystemSoft contained in Sections 5.1(c), 5.1(d), Article IX and 10.1 shall
survive such termination.
ARTICLE IX
SURVIVAL; INDEMNIFICATION
9.1 Survival. The covenants, agreements, representations and
--------
warranties of Radish contained in this Agreement shall survive the Closing until
the earlier of (i) the date on which SystemSoft releases its audited financial
statements for the year ended January 31, 1998 or (ii) May 2, 1998; provided,
however, that the covenants, agreements, representations and warranties set
forth in Section 3.16 shall survive until the applicable statutes of limitations
with respect to Taxes shall have expired. Notwithstanding the preceding
sentence, any covenant, agreement, representation or warranty in respect of
which indemnity may be sought under Section 9.2 shall survive the time at which
it would otherwise terminate pursuant to the preceding sentence, if notice of
the inaccuracy or breach thereof giving rise to such right to indemnity shall
have been given to the party against whom such indemnity may be sought prior to
such time.
9.2 Indemnification. By their approval of this Agreement, the
---------------
stockholders of Radish agree that the Escrow Account established under the
Escrow Agreement shall be available to indemnify, defend, protect, and hold
harmless each of SystemSoft, Radish and each of their respective subsidiaries
and affiliates (each in its capacity as an indemnified party, an "Indemnitee")
----------
at all times from and after the date of this Agreement from and against all
claims, damages, actions, suits, proceedings, demands, assessments, adjustments,
costs and expenses (including specifically, but without limitation, reasonable
attorneys' fees and expenses of investigation) (collectively "Damages") incurred
-------
by such Indemnitee as a result of or incident to (i) any breach of any
representation or warranty of Radish or any of the Major Stockholders set forth
herein or in the Participation Agreement, or in any certificate or other
document delivered in connection herewith or therewith with respect to which a
claim for indemnification is brought by an Indemnitee within the applicable
survival period described in Section 9.1 provided, that with respect to the
representations or warranties of the Major Stockholders in the Participation
Agreement, each such individual Major Stockholder shall only be liable for any
misrepresentation or breach of warranty made by himself or itself, (ii) any
breach or nonfulfillment by Radish or any of the Major Stockholders, or any
noncompliance by Radish or any of the Major Stockholders with, any covenant,
agreement, or obligation contained herein, in the Participation Agreement, or in
any certificate or other document delivered in connection herewith except to the
extent waived by SystemSoft provided, that with respect to the covenants,
--------
agreements or obligations of the Major Stockholders in the Participation
Agreement, each such individual Major Stockholder shall only be liable for a
breach, nonfulfillment or noncompliance of any covenant, agreement or obligation
made by himself or itself, or (iii) any claim by a stockholder or former
stockholder of Radish or any other person, firm, corporation or entity, seeking
to assert, or based upon: (A) ownership or rights of ownership to any shares of
capital stock of Radish; (B) any rights of the stockholder (other than the right
to receive the Merger consideration pursuant to this Agreement or appraisal
rights under the applicable provisions of the Delaware Corporation Law),
including any option, preemptive rights, or rights to notice or to vote; (C) any
rights under the charter or bylaws of Radish; or (D) any claim that his, her or
its shares were
Agreement and Plan of Merger -- Page 36
wrongfully repurchased by Radish, regardless of whether an action, suit or
preceding can or has been made against Radish.
9.3 Third Person Claims. Promptly after an Indemnitee has received
-------------------
notice of or has knowledge of any claim by a person not a party to this
Agreement ("Third Person") or the commencement of any action or proceeding by a
------------
Third Person, the Indemnitee shall, as a condition precedent to a claim with
respect thereto being made against the Escrow Agreement, give the Stockholders'
Representative written notice of such claim or the commencement of such action
or proceeding; provided, however that the failure to give such notice will not
-------- -------
effect the Indemnitees' right to indemnification hereunder with respect to such
claim, action or proceeding, except to the extent that the Stockholders'
Representative has, or the stockholders have, been actually prejudiced as a
result of such failure. If the Stockholder Representative notifies the
Indemnitee within 30 days from the receipt of the foregoing notice that he
wishes to defend against the claim by the Third Person and if the estimated
amount of the claim, together with all other claims made against the Escrow
Shares that have not been settled, is less than the remaining balance of the
Escrow Shares, then the Stockholder Representative shall have the right to
assume and control the defense of the claim by appropriate proceedings with
counsel reasonably acceptable to Indemnitee, and the Stockholder Representative
shall be entitled to reimbursement out of the Escrow Shares for such defense.
The Indemnitee may participate in the defense, at its sole expense of any such
claim for which the Stockholder Representative shall have assumed the defense
pursuant to the preceding sentence, provided that counsel for the Stockholder
Representative shall act as lead counsel in all matters pertaining to the
defense or settlement of such claims, suit or proceedings; provided, however,
-------- -------
that Indemnitee shall control the defense of any claim or proceeding that in
Indemnitee's reasonable judgment could have a material and adverse effect on
Indemnitee's business apart from the payment of money damages. The Indemnitee
shall be entitled to indemnification for the reasonable fees and expenses of its
counsel for any period during which the Stockholder Representative has not
assumed the defense of any claim. Whether or not the Stockholder Representative
shall have assumed the defense of any claim, nether the Indemnitee nor the
Stockholder Representative shall make any settlement with respect to any such
claim, suit or proceeding without the prior consent of the other, which consent
shall not be unreasonably withheld or delayed. It is understood and agreed that
in situations where failure to settle a claim expeditiously could have an
adverse effect on the party wishing to settle, the failure of the party
controlling the defense to act upon a request for consent to such settlement
within five business days of receipt of notice thereof shall be deemed to
constitute consent to such settlement for purposes of this Article IX.
9.4 Limitations on Indemnification. An Indemnitee shall be entitled to
------------------------------
indemnification under Section 9.2 for Damages relating to breaches of
representations and warranties set forth herein or in the Participation
Agreement or in any certificate or document delivered in connection herewith or
therewith all as provided in Section 9.2(i), only with respect to amounts by
which Damages incurred exceeds $200,000. The limitation provided in this Section
9.4 on an Indemnitee's right to indemnification under this Article IX shall not
apply to Damages for any matters set forth in Section 9.2(ii)-(iii).
9.5 Method of Payment. Any claims for indemnification pursuant to this
-----------------
Article IX shall be satisfied first from the Escrow Account prior to satisfying
claims for indemnification directly from one or more of Red's stockholders
provided, however, that no Radish stockholder shall be liable for an amount in
-------- -------
excess of the value of the shares of SystemSoft Common received by such
stockholder in the Merger. To the extent that SystemSoft, or the Surviving
Corporation makes a claim against the Escrow Account pursuant to the Escrow
Agreement, and such claim is paid in shares of SystemSoft Common,
Agreement and Plan of Merger -- Page 37
then for purposes of such payment, the shares of SystemSoft Common shall be
valued at the Final SystemSoft Stock Price. "Final SystemSoft Stock Price"
----------------------------
shall mean $18.82.
9.6 Directors and Officers Indemnification. SystemSoft and Radish
--------------------------------------
shall indemnify, defend and hold harmless each person who is now, or has been at
any time prior to the date hereof or who becomes prior to the Effective Time, an
officer or director of Radish (the "Indemnified Parties") to the same extent
-------------------
that such Indemnified Parties are currently indemnified by Radish pursuant to
Red's Certificate of Incorporation and by-laws for acts or omissions occurring
at or prior to the Effective Time. This Section 9.6 will survive any termination
of this Agreement and the consummation of the Merger at the Effective Time, is
intended to benefit Radish, the Surviving Corporation and the Indemnified
Parties, and will be binding on all successors and assigns of the Surviving
Corporation.
ARTICLE X
MISCELLANEOUS
10.1 Other Remedies; Specific Performance. Any and all remedies herein
------------------------------------
expressly conferred upon a party will be deemed cumulative and not exclusive of
any other remedy conferred hereby, or by law or equity upon such party, and the
exercise by a party of any one remedy will not preclude the exercise of any
other remedy. The parties hereto agree that irreparable damage would occur in
the event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions hereof in any court of the United States or any state
having jurisdiction, this being in addition to any other remedy to which they
are entitled at law or in equity.
10.2 Expenses. All fees and expenses (including all accounting, legal
--------
and investment banking fees and expenses and all other expenses) incurred by
SystemSoft and the Company in connection with this Agreement and the
transactions contemplated hereby will be borne by SystemSoft. All fees and
expenses (including without limitation all accounting, legal and investment
banking fees and expenses) incurred by Radish in connection with this Agreement
and the transactions contemplated hereby will be borne by Radish.
10.3 Further Assurances. If at any time after the Effective Time,
------------------
SystemSoft or the Company shall consider it advisable that any further
conveyance, agreements, documents, instruments and assurances of law or any
other things are necessary or desirable to vest, perfect, confirm or record in
the Surviving Corporation the title to any property, rights, privileges, powers
and franchises of Radish, the officers of Radish last in office and such other
persons, if any, as the Board of Directors of Radish last in office may
authorize shall execute and deliver, upon SystemSoft's or the Company's request,
any and all proper conveyances, agreements, documents, instruments and
assurances of law, and do all things reasonably necessary or proper to vest,
perfect, confirm or record title to such property, rights, privileges, powers
and franchises in the Surviving Corporation, and otherwise to carry out the
provisions of this Agreement.
10.4 Parties in Interest. All the terms and provisions of this
-------------------
Agreement shall be binding upon, shall inure to the benefit of and shall be
enforceable by the respective successors and permitted assigns of the parties
hereto. Nothing expressed or implied in this Agreement is intended or shall be
construed to
Agreement and Plan of Merger -- Page 38
confer upon or give any person, firm or corporation other than the parties
hereto, their permitted successors or assigns, and their respective stockholders
any rights or remedies under or by reason of this Agreement or any transaction
contemplated hereby.
10.5 Entire Agreement. This Agreement, the Participation Agreement,
----------------
the Registration Rights Agreement and the Escrow Agreement together with the
Schedules and Exhibits hereto and thereto, supersede any other agreement,
whether written or oral, that may have been made or entered into by SystemSoft
and Radish (or by any officer or officers of such parties) relating to the
matters contemplated hereby or thereby. This Agreement, the Participation
Agreement, the Registration Rights Agreement and the Escrow Agreement, together
with the Schedules and Exhibits hereto and thereto, constitute the entire
agreement by the parties, and there are no agreements or commitments except as
set forth herein and therein.
10.6 Amendment or Modification. At any time before or after the
-------------------------
adoption of this Agreement by the stockholders of Radish, this Agreement may be
amended or supplemented by additional agreements, articles or certificates, as
may be mutually determined by the parties hereto to be necessary, desirable or
expedient to further the purposes of this Agreement, or to clarify the intention
of the parties hereto, or to add to or to modify the covenants, terms or
conditions hereof or to effect or facilitate any governmental approval or
acceptance of the Merger or of this Agreement or to effect or facilitate the
filing or recording of this Agreement or the consummation of any of the
transactions contemplated hereby.
10.7 Waiver. Any party to this Agreement may, by written notice to the
------
other parties to this Agreement, (a) extend the time for the performance of any
of the obligations or other actions of the other parties under this Agreement;
(b) waive any inaccuracies in the representations or warranties of the other
parties contained in this Agreement or in any document delivered pursuant to
this Agreement; (c) waive compliance with any of the conditions or covenants of
the other parties contained in this Agreement; or (d) waive or modify
performance of any of the obligations of the other parties under this Agreement.
Except as provided in the preceding sentence, no action taken pursuant to this
Agreement, including without limitation any investigation by or on behalf of any
party, shall be deemed to constitute a waiver by the party taking such action of
compliance with any representations, warranties, covenants, conditions or
agreements contained in this Agreement. The failure of any party hereto to
enforce at any time any of the provisions of this Agreement shall in no way be
construed to be a waiver of any such provision, nor in any way to affect the
validity of this Agreement or any part hereof or the right of such party
thereafter to enforce each and every such provision. No waiver of any breach of
or non-compliance with this Agreement shall be held to be a waiver of any other
or subsequent breach or non-compliance.
10.8 Assignability. This Agreement shall not be assignable by Radish,
-------------
on the one hand, or SystemSoft or the Company, on the other hand, without the
prior written consent of SystemSoft, on the one hand, or Radish, on the other
hand, as the case may be.
10.9 Certain Definitions. For purposes of this Agreement, the
-------------------
following terms shall have the meanings set forth below:
(a) "affiliate" shall mean, when used with respect to a
---------
specified person, another person that directly, or indirectly through one or
more intermediaries, controls or is controlled by or is under common control
with the person specified;
Agreement and Plan of Merger -- Page 39
(b) "control" (including, with its correlative meanings,
-------
"controlled by" and "under common control with") shall mean possession, directly
------------- -------------------------
or indirectly, of power to direct or cause the direction of management or
policies (whether through ownership of securities or partnership or other
ownership interests, by contract or otherwise);
(c) "person" shall mean any individual, corporation,
------
partnership, limited liability company, trust, joint venture, unincorporated
association, Governmental Authority or other entity; and
(d) "subsidiary" of any person shall mean a corporation, company
----------
or other entity (i) more than 50% of whose outstanding shares or securities
(representing the right to vote for the election of directors or other managing
authority) are, or (ii) which does not have outstanding shares or securities (as
may be the case in a partnership, limited liability company, joint venture or
unincorporated association), but more than 50% of whose ownership interest
representing the right to make decisions for such other entity is, now or
hereafter owned or controlled, directly or indirectly, by such person.
10.10 Headings and Interpretation. The headings contained in this
---------------------------
Agreement are for reference purposes only and shall not affect the meaning or
interpretation of this Agreement. Terms such as "herein," "hereof" and
"hereinafter" refer to this Agreement as a whole and not to the particular
sentence or paragraph where they appear, unless the context otherwise requires.
Whenever the words "include," "includes" or "including" are used in this
Agreement they shall be deemed to be followed by the words "without limitation."
The phrase "made available" in this Agreement shall mean that the information
referred to has been made available if requested by the party to whom such
information is to be made available. Unless the context otherwise requires, (i)
terms used in the plural include the singular, and vice versa, and (ii) words in
the masculine gender include the feminine, and vice versa.
10.11 Notices. All notices and other communications under this
-------
Agreement shall be in writing and shall be delivered by hand or overnight
courier service, mailed or sent by telex, graphic scanning or other telegraphic
communications equipment of the sending party, as follows:
If to SystemSoft or the Company:
SystemSoft Corporation
0 Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: President
with a copy to:
Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP
High Street Tower
000 Xxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxx, Esq.
If to Radish:
Radish Communications Systems, Inc.
0000 Xxxxxxx Xxxxxx
Agreement and Plan of Merger -- Page 40
Xxxxxxx, Xxxxxxxx 00000
Attention: President
with a copy to:
Ireland, Xxxxxxxxx, Xxxxx & Xxxxxx, P.C.
0000 Xxxxxxxx
Xxxxxx, XX 00000
Attention: Xxxx X. Xxxxx, Esq.
or to such other address as any party may have furnished to the others in
writing in accordance herewith, except that notices of change of address shall
only be effective upon receipt. All notices and other communications given to
any party hereto in accordance with the provisions of this Agreement shall be
deemed to have been given on the date of receipt if delivered by hand or
overnight courier service or sent by telex, graphic scanning or other
telegraphic communications equipment of the sender, or on the date five business
days after dispatch by certified or registered mail if mailed, in each case
delivered, sent or mailed (properly addressed) to such party as provided in this
Section 10.11 or in accordance with the latest unrevised direction from such
party given in accordance with this Section 10.11.
10.12 Law Governing. This Agreement shall be governed by and construed
-------------
and enforced in accordance with the laws of the State of Delaware, without
giving effect to the principles of conflicts of law thereof.
10.13 Invalidity of Provisions. Each of the provisions contained in
------------------------
this Agreement is distinct and severable and a declaration of invalidity or
unenforceability of any such provision or part thereof by a court of competent
jurisdiction shall not affect the validity or enforceability of any other
provision hereof. The parties agree to replace such invalid or unenforceable
provision of this Agreement with a valid and enforceable provision that will
achieve, to the extent possible, the economic, business and other purposes of
such invalid or unenforceable provision.
10.14 Counterparts. This Agreement may be executed simultaneously in
------------
one or more counterparts, each of which shall be deemed to be an original but
all of which together shall constitute one and the same instrument.
10.15 Consent to Jurisdiction. Each of Radish, SystemSoft and the
-----------------------
Company hereby irrevocably submits to the exclusive jurisdiction of any state or
federal court in the State of Delaware over any suit, action or proceeding
brought against it by any of the other parties hereto and arising out of or
relating to this Agreement and the transactions contemplated hereby.
Agreement and Plan of Merger -- Page 41
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the
parties on the date first above written.
SYSTEMSOFT CORPORATION
Attest:
/s/ Xxxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxxxx
----------------------------- ----------------------------
Name: Xxxxxx X. Xxxxx Name: Xxxxx X. Xxxxxxx
Title: V.P. Title: V.P. Finance & CFO
BLACK ACQUISITION CORPORATION
Attest:
/s/ Xxxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxxxx
----------------------------- ----------------------------
Name: Xxxxxx X. Xxxxx Name: Xxxxx X. Xxxxxxx
Title: V.P. Title: V.P. Finance & CFO
RADISH COMMUNICATIONS
SYSTEMS, INC.
Attest:
/s/ Xxxxx Xxxxxxxxx By: /s/ Xxxxx Xxxxx
----------------------------- ----------------------------
Name: Xxxxx Xxxxxxxxx Name: Xxxxx Xxxxx
Title: V.P. Finance Title: President & CEO
