EXECUTION COPY
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EXHIBIT 10.37
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AGREEMENT AND PLAN OF MERGER
by and among
PERITUS SOFTWARE SERVICES, INC.,
VISTA TECHNOLOGIES INCORPORATED
and
STOCKHOLDERS
listed on Schedule I
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January 29, 1996
TABLE OF CONTENTS
1. The Merger and Related Matters......................................... 2
1.01 Merger.......................................................... 2
1.02 Stockholder Approval............................................ 2
1.03 Effective Date.................................................. 2
1.04 Capital Stock of Vista.......................................... 2
1.05 Capital Stock of Peritus........................................ 3
1.06 Stock Certificates.............................................. 4
1.07 Succession...................................................... 4
1.08 Article of Organization and By-Laws............................. 4
1.09 Directors and Officers.......................................... 5
1.10 No Further Rights............................................... 5
1.11 Closing of Transfer Books....................................... 5
1.12 Stockholders' Representative.................................... 5
2. Representations and Warranties of the Stockholders..................... 7
3. Representations and Warranties of Vista................................ 8
3.01 Organization.................................................... 8
3.02 Capitalization of Vista......................................... 8
3.03 No Subsidiaries................................................. 9
3.04 Authorization................................................... 9
3.05 Financial Statements............................................ 9
3.06 Absence of Undisclosed Liabilities.............................. 10
3.07 Litigation...................................................... 10
3.08 Insurance....................................................... 11
3.09 Personal Property............................................... 11
3.10 Intangible Property............................................. 12
3.11 Leases.......................................................... 13
3.12 Real Estate..................................................... 14
3.13 Accounts Receivable............................................. 14
3.14 Tax Matters..................................................... 14
3.15 Books and Records............................................... 15
3.16 Contracts and Commitments....................................... 16
3.17 Compliance with Agreements and Laws............................. 19
3.18 Employee Relations.............................................. 19
3.19 Employee Benefit Plans.......................................... 20
3.20 Absence of Certain Changes or Events............................ 24
3.21 Customers....................................................... 25
3.22 Suppliers....................................................... 26
3.23 Warranty and Product Liability Claims........................... 26
3.24 Prepayments and Deposits........................................ 26
3.25 Indebtedness to and from Officers, Directors and Stockholders... 26
3.26 Banking Facilities.............................................. 27
3.27 Powers of Attorney and Suretyships.............................. 27
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3.28 Conflicts of Interest........................................... 27
3.29 Regulatory Approvals............................................ 28
3.30 Disclosure...................................................... 28
4. Representations and Warranties of Peritus.............................. 28
4.01 Organization and Authority...................................... 28
4.02 Capitalization of Peritus....................................... 29
4.03 Authorization................................................... 29
4.04 Regulatory Approvals............................................ 30
4.05 Disclosure...................................................... 30
5. Access to Information; Public Announcements............................ 30
5.01 Access to Management, Properties and Records.................... 30
5.02 Confidentiality................................................. 31
5.03 Public Announcements............................................ 31
6. Pre-Effective Covenants of Vista....................................... 31
6.01 Conduct of Business............................................. 32
6.02 Absence of Material Changes..................................... 32
6.03 Delivery of Interim Financial Statements........................ 34
6.04 Communications with Customers and Suppliers..................... 34
6.05 Compliance with Laws............................................ 34
6.06 Continued Truth of Representations and Warranties............... 34
6.07 Continuing Obligation to Inform................................. 34
6.08 Exclusive Dealing............................................... 35
6.09 Reports, Taxes.................................................. 35
6.10 Termination of Option Plans..................................... 35
7. Best Efforts to Obtain Satisfaction of Conditions...................... 35
8. Conditions to Obligations of Peritus................................... 36
8.01 Continued Truth of Representations and Warranties
of Vista; Compliance with Covenants and Obligations............. 36
8.02 Performance by Vista............................................ 36
8.03 Governmental Approvals.......................................... 36
8.04 Stockholder Approval............................................ 36
8.05 Consent of Lenders, Lessors and Other Third Parties............. 37
8.06 Adverse Proceedings............................................. 37
8.07 Opinion of Counsel.............................................. 37
8.08 Update.......................................................... 37
8.09 Employment Contracts............................................ 38
8.10 Cash Available for Working Capital Purposes..................... 38
8.11 Repayment of Indebtedness....................................... 38
8.12 Trade Payables.................................................. 38
8.13 Deliveries...................................................... 39
8.14 Approval of Merger Documents.................................... 40
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9. Conditions to Obligations of Vista...................................... 40
9.01 Continued Truth of Representations and Warranties
of Peritus; Compliance with Covenants and
Obligations...................................................... 40
9.02 Corporate Proceedings............................................ 40
9.03 Governmental Approvals........................................... 40
9.04 Consents of Lenders, Lessors and Other Third Parties............. 40
9.05 Adverse Proceedings.............................................. 41
9.06 Opinion of Counsel............................................... 41
9.07 Deliveries....................................................... 41
10. Survival of Representations and Warranties............................. 42
10.01 Survival of Representations and Warranties of Vista.............. 42
10.02 Survival of Representations and Warranties of Peritus............ 42
11. Termination of Agreement; Option to Proceed; Damages................... 42
11.01 Termination by Lapse of Time.................................... 42
11.02 Termination by Agreement of the Parties......................... 42
11.03 Termination by Reason of Breach................................. 43
11.04 Option to Proceed............................................... 43
11.05 Availability of Remedies at Law................................. 44
12. Dispute Resolution..................................................... 44
12.01 General......................................................... 44
12.02 Consent of the Parties.......................................... 44
12.03 Arbitration..................................................... 44
13. Brokers................................................................ 46
13.01 For Vista....................................................... 46
13.02 For Peritus..................................................... 46
14. Notices................................................................ 46
15. Successors and Assigns................................................. 47
16. Entire Agreement; Attachments.......................................... 47
17. Severability........................................................... 47
18. Investigation of the Parties........................................... 48
19. Expenses............................................................... 48
20. Legal Fees............................................................. 48
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21. Further Assurances.................................................... 48
22. Amendment............................................................. 48
23. Governing Law......................................................... 49
24. Section Headings; Number; Gender...................................... 49
25. Counterparts.......................................................... 49
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AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (the "Agreement and Plan of Merger"),
dated this 29th day of January, 1996, pursuant to Section 79 of Chapter 156B of
Massachusetts General Laws (the "Massachusetts Business Corporation Law") and
Section 5/11.35 of Chapter 805 of Illinois Compiled Statutes (the "Illinois
Business Corporation Law"), by and among Peritus Software Services, Inc., a
Massachusetts corporation having its principal place of business at ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ("Peritus"), Vista Technologies Incorporated, an
Illinois corporation having its principal place of business at Two Woodfield
Lake, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ("Vista"), and the
stockholders listed on Schedule I attached hereto (each, a "Stockholder" and
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collectively, the "Stockholders").
WITNESSETH:
WHEREAS, Peritus is a corporation duly organized and existing under the
laws of the Commonwealth of Massachusetts and is authorized to issue 3,760,000
shares of Class A Voting Common Stock, no par value (the "Peritus Class A Common
Stock"), of which 2,225,815 shares are issued and outstanding as of the date
hereof, and 40,000 shares of Class B Non-Voting Common Stock, no par value (the
"Peritus Class B Common Stock"), of which 39,715 shares are issued and
outstanding as of the date hereof;
WHEREAS, Vista is a corporation duly organized and existing under the laws
of the State of Illinois and is authorized to issue (i) 2,000,000 shares of
Class A Common Stock, no par value (the "Vista Class A Common Stock"), of which
138,760 shares are issued and outstanding as of the date hereof, (ii) 200,000
shares of Class B Common Stock, no par value (the "Vista Class B Common Stock"),
of which 31,240 shares are issued and outstanding as of the date hereof, and
(iii) 1,000,000 shares of Class C Common Stock, no par value (the "Vista Class C
Common Stock"), of which 36,000 shares are issued and outstanding as of the date
hereof;
WHEREAS, the Stockholders own all of the issued and outstanding capital
stock of Vista;
WHEREAS, Peritus desires that Vista be merged into Peritus;
WHEREAS, Vista desires to merge itself into Peritus; and
WHEREAS, the Boards of Directors of Peritus and Vista have approved and
adopted this Agreement and Plan of Merger.
NOW THEREFORE, in consideration of the foregoing premises and the
undertakings herein contained and for other good valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
1. The Merger and Related Matters
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1.01 Merger. As soon as practicable after the satisfaction of the
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conditions set forth in Sections 8 and 9 hereof, Vista shall be merged with and
into Peritus pursuant to the Massachusetts Business Corporation Law and the
Illinois Business Corporation Law by delivering to the Secretary of the
Commonwealth of the Commonwealth of Massachusetts and to the Secretary of State
of the State of Illinois the articles of merger, together with such other
documents and certificates as may be required by the Massachusetts Business
Corporation Law and the Illinois Business Corporation Law, each in such form or
forms as may be required by, and executed and acknowledged in accordance with,
the relevant provisions of the Massachusetts Business Corporation Law and the
Illinois Business Corporation Law (such documents being collectively referred to
as the "Merger Documents"), and shall make all other filings and recordings
required by the Massachusetts Business Corporation Law and the Illinois Business
Corporation Law in connection with the Merger. Peritus shall survive the merger
herein contemplated and shall continue to be governed by the laws of the
Commonwealth of Massachusetts. The separate corporate existence of Vista shall
cease forthwith upon the Effective Date (as defined below). The merger of Vista
into Peritus shall herein be referred to as the "Merger."
1.02 Stockholder Approval. As soon as practicable after the
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execution of this Agreement and Plan of Merger, each of Peritus and Vista shall,
if necessary under the Massachusetts Business Corporation Law or the Illinois
Business Corporation Law, submit this Agreement and Plan of Merger to their
respective stockholders for approval.
1.03 Effective Date. The Merger shall be effective upon the filing
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of articles of merger with the Secretary of the Commonwealth of the Commonwealth
of Massachusetts, which filing shall be made as soon as practicable after all
required stockholder approvals have been obtained. The time of such
effectiveness shall herein be referred to as the "Effective Date."
1.04 Capital Stock of Vista.
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(a) Subject to the other provisions of this Subsection 1.04,
on the Effective Date, by virtue of the Merger and without any action on the
part of the holder thereof, each
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share of the capital stock of Vista (whether of Vista Class A Common Stock,
Vista Class B Common Stock, or Vista Class C Common Stock, and whether voting or
non-voting) issued and outstanding immediately prior thereto shall cease to
exist and shall be changed and converted into 0.5437 fully paid and non-
assessable shares of the Peritus Class A Common Stock (such ratio, the
"Conversion Ratio").
(b) Notwithstanding the provisions of paragraph (a) of this
Subsection 1.04, shares of the capital stock of Vista held by a holder who, in
accordance with Section 5/11.65 et seq. of the Illinois Business Corporation Law
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has asserted and perfected his right to dissent and obtain payment for such
shares and has not effectively withdrawn or lost such right, shall not be
converted into shares of Peritus Class A Common Stock unless such holder
withdraws or otherwise loses his right to obtain payment for such shares. If
after the Effective Date such holder withdraws or loses his right to receive
payment for his shares of the capital stock of Vista, such shares shall be
treated as if they had been converted as of the Effective Date into shares of
Peritus Class A Common Stock pursuant to the provisions of paragraph (a) of this
Subsection 1.04.
(c) Vista shall give Peritus prompt notice of any demands for
payment, or notices of intent to demand payment, received by Vista with respect
to any shares of the capital stock of Vista in connection with the Merger, and
Peritus shall have the right to participate in all negotiations and proceedings
with respect to such demands. Vista shall not, except with the prior written
consent of Peritus or as otherwise required by law, make any payment with
respect to, or settle or offer to settle, any such demand.
(d) Due to the operation of rounding, as provided in paragraph
(b) of Subsection 1.06 hereof, of the number of shares of Peritus Class A Common
Stock receivable pursuant to the Merger by holders of the capital stock of
Vista, neither certificates nor scrip for fractional shares shall be issued to
any person or entity pursuant to the Merger, and no holder of any fractional
share of the capital stock of Vista or a fractional share interest therein shall
be entitled to any voting or other rights of a holder of shares of capital stock
of Peritus.
1.05 Capital Stock of Peritus. On the Effective Date, by virtue of
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the Merger and without any action on the part of the holder thereof, each share
of Peritus Class A Common Stock and Peritus Class B Common Stock issued and
outstanding immediately prior thereto shall remain issued and outstanding and
each share of Peritus Class A Common Stock and Peritus Class B Common Stock
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held in the treasury of Peritus immediately prior thereto (if any) shall remain
in the treasury.
1.06 Stock Certificates.
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(a) On and after the Effective Date, all of the outstanding
certificates which prior to that time represented shares of capital stock of
Vista shall be deemed for all purposes to evidence ownership of and to represent
solely the shares of Peritus Class A Common Stock into which the shares of the
capital stock of Vista represented by such certificates have been converted as
herein provided. The registered owner on the books and records of Peritus of any
such outstanding stock certificate shall, until such certificate shall have been
surrendered for conversion or transfer or otherwise accounted for to Peritus,
have and be entitled to exercise any voting and other rights with respect to and
to receive any dividend and other distributions upon the shares of Peritus Class
A Common Stock evidenced by such outstanding certificate as above provided.
(b) Notwithstanding the provisions of paragraph (a) of this
Subsection 1.06, (i) no holder of shares of capital stock of Vista shall be
entitled to receive any certificates or scrip for fractional shares of Peritus
Class A Common Stock, (ii) the number of shares of Peritus Class A Common Stock
receivable by any holder of shares of capital stock of Vista pursuant to the
Merger as calculated in accordance with paragraph (a) of Subsection 1.04 hereof
shall, unless it is a whole number of such shares of Peritus Class A Common
Stock, be rounded down to the nearest whole number of such shares, and (iii) no
fractional shares of, or fractional share interests in, Peritus Class A Common
Stock shall be issued to any person or entity pursuant to the Merger.
1.07 Succession. On the Effective Date, Peritus shall succeed to
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all of the rights, privileges, debts, liabilities, powers and property of Vista
in the manner of and as more fully set forth in Section 80 of the Massachusetts
Business Corporation Law and Section 5/11.50 of the Illinois Business
Corporation Law. Without limiting the foregoing, upon the Effective Date, all of
the estate, property, rights, privileges, powers, franchises, patents,
trademarks, licenses, registrations and other assets of every kind and
description of Vista shall be transferred to, vested in and devolved upon
Peritus without further act or deed and all property, real, personal and mixed,
rights, and every other interest of Vista and Peritus, and all the debts due on
whatever account to either of them, as well as stock subscriptions and other
choses in action belonging to either of them, shall be as effectively the
property of Peritus as they were of Vista and Peritus, respectively.
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1.08 Article of Organization and By-Laws. The Articles of
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Organization of Peritus in effect on the Effective Date shall continue to be the
Articles of Organization of Peritus until further amended in accordance with the
provisions thereof and applicable law. The By-laws of Peritus in effect on the
Effective Date shall continue to be the By-laws of Peritus until amended in
accordance with the provisions thereof and applicable law.
1.09 Directors and Officers. The members of the Board of Directors
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and the officers of Peritus on the Effective Date shall continue in office until
the expiration of their respective terms of office and until their successors
have been elected and qualified.
1.10 No Further Rights. From and after the Effective Date, no
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shares of capital stock of Vista shall be deemed to be outstanding, and holders
of certificates therefor shall cease to have any rights with respect thereto
except as provided herein or by law.
1.11 Closing of Transfer Books. On the Effective Date, the stock
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transfer books of Vista shall be closed and no transfer of shares of capital
stock of Vista shall thereafter be made. If, after the Effective Date,
certificates therefor are presented to Peritus, they shall be cancelled and
exchanged for shares of Peritus Class A Common Stock in accordance with
Subsection 1.04, subject to applicable law in the case of any dissenting shares
of capital stock of Vista.
1.12 Stockholders' Representative.
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(a) In order to efficiently administer the provisions of this
Agreement (including, without limitation, Subsection 11.04 and Section 12
hereof) and all other documents and instruments executed and delivered, or
otherwise furnished, by the Stockholders in connection herewith (including,
without limitation, the escrow agreement in the form of Exhibit A attached
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hereto (the "Escrow Agreement")), the Stockholders hereby designate ▇▇▇▇▇▇ ▇.
▇▇▇▇▇ as their representative (the "Stockholders' Representative").
(b) The Stockholders hereby authorize the Stockholders'
Representative (i) to make all decisions and to take all action necessary to be
made or taken by or on behalf of the Stockholders under this Agreement or the
Escrow Agreement, (ii) to give and receive all notices required or permitted to
be given under this Agreement or the Escrow Agreement, and (iii) to take any and
all additional action as is contemplated to be taken by or
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on behalf of the Stockholders by the terms of this Agreement or the Escrow
Agreement.
(c) In the event that the Stockholders' Representative dies,
becomes unable to perform his responsibilities hereunder or resigns from such
position, Stockholders holding, prior to the Effective Date, a majority of the
shares of capital stock of Vista as set forth on Schedule I attached hereto
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shall select another representative to fill such vacancy, and such substituted
representative shall be deemed to be the Stockholders' Representative for all
purposes of this Agreement and the Escrow Agreement.
(d) All decisions and actions by the Stockholders'
Representative in connection with this Agreement or the Escrow Agreement shall
be binding upon all of the Stockholders, and no Stockholder shall have the right
to object, dissent, protest or otherwise contest the same.
(e) By their execution of this Agreement, the Stockholders
agree that:
(i) Peritus shall be able to rely conclusively on the
instructions and decisions of the Stockholders' Representative as to any actions
required or permitted to be taken by the Stockholders' Representative hereunder
or under the Escrow Agreement, and no party hereunder shall have any cause of
action against Peritus for any action taken by Peritus in reliance upon the
instructions or decisions of the Stockholders' Representative;
(ii) all actions, decisions and instructions of the
Stockholders' Representative shall be conclusive and binding upon all of the
Stockholders and no Stockholder shall have any cause of action against the
Stockholders' Representative for any action taken, decision made or instruction
given by the Stockholders' Representative under this Agreement or under the
Escrow Agreement, except for fraud or willful breach of this Agreement or the
Escrow Agreement by the Stockholders' Representative;
(iii) the provisions of this Subsection 1.12 are
independent and severable, are irrevocable and coupled with an interest and
shall be enforceable notwithstanding any rights or remedies that any Stockholder
may have in connection with the transactions contemplated by this Agreement or
the Escrow Agreement;
(iv) remedies available at law for any breach of the
provisions of this Subsection 1.12 are inadequate;
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therefore, Peritus and Vista shall be entitled to temporary and permanent
injunctive relief without the necessity of proving damages if either Peritus or
Vista brings an action to enforce the provisions of this Subsection 1.12; and
(v) the provisions of this Subsection 1.12 shall be
binding upon the executors, heirs, legal representatives and successors of each
Stockholder, and any references in this Agreement or the Escrow Agreement to a
Stockholder or the Stockholders shall mean and include the successors to the
Stockholders' rights hereunder, whether pursuant to testamentary disposition,
the laws of descent and distribution or otherwise.
2. Representations and Warranties of the Stockholders
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As of the date hereof and as of the Effective Date, each Stockholder
severally represents and warrants to Peritus as follows:
(a) Such Stockholder has good and marketable title to the
shares of capital stock of Vista listed on Schedule I attached hereto opposite
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such Stockholder's name, free and clear of any and all covenants, conditions,
restrictions, voting trust arrangements, liens, charges, encumbrances, options
and adverse claims or rights whatsoever. Schedule I attached hereto sets forth
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a true and correct description of all shares of capital stock of Vista owned by
such Stockholder, both of record and beneficially.
(b) Except as set forth on Schedule 2 attached hereto, such
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Stockholder is not a party to, subject to or bound by any agreement or any
judgment, order, writ, prohibition, injunction or decree of any court or other
governmental body which would prevent the execution, delivery or performance by
such Stockholder of this Agreement or the Escrow Agreement. Schedule 2 attached
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hereto sets forth a true, correct and complete list of all consents and
approvals of third parties that are required in connection with the consummation
by any Stockholder of the transactions contemplated by this Agreement or the
Escrow Agreement.
(c) No broker or finder has acted for such Stockholder in
connection with this Agreement or the transactions contemplated hereby, and no
broker or finder is entitled to any brokerage or finder's fee or other
commissions in respect of such transactions based upon agreements, arrangements
or understandings made by or on behalf of such Stockholder.
(d) This Agreement has been, and prior to the Effective Date
the Escrow Agreement will be, duly executed and
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delivered by such Stockholder and constitutes (or will constitute) a valid and
binding obligation of such Stockholder, enforceable against such Stockholder in
accordance with its terms.
3. Representations and Warranties of Vista
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As of the date hereof and as of the Effective Date, Vista represents
and warrants to Peritus that:
3.01 Organization.
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Vista is a corporation duly organized, validly existing and in good
standing under the laws of the State of Illinois, and has all requisite power
and authority (corporate and other) to own its properties, to carry on its
business as now being conducted, to execute and deliver this Agreement and Plan
of Merger and the agreements contemplated herein, and to consummate the Merger
and the other transactions contemplated hereby and thereby. Vista is duly
qualified to do business and in good standing in all jurisdictions in which its
ownership of property or the character of its business requires such
qualification. Certified copies of the Articles of Incorporation and Bylaws of
Vista, as amended to date, have been previously delivered to Peritus, are
complete and correct, and no amendments have been made thereto or have been
authorized since the date thereof.
3.02 Capitalization of Vista.
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Vista's authorized capital stock consists of (i) 2,000,000 shares of
the Vista Class A Common Stock, of which 138,760 shares are issued and
outstanding as of the date hereof, (ii) 200,000 shares of the Vista Class B
Common Stock, of which 31,240 shares are issued and outstanding as of the date
hereof, and (iii) 1,000,000 shares of the Vista Class C Common Stock, of which
36,000 shares are issued and outstanding as of the date hereof. All of such
shares are held of record and beneficially by the Stockholders in amounts
specified on Schedule I attached hereto opposite their respective names. All
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such issued and outstanding shares of capital stock of Vista have been and on
the Effective Date will be duly and validly issued and are, or will be on such
date, fully paid and non-assessable. Except as set forth in Schedule 3.02
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attached hereto, there are not, and on the Effective Date there will not be,
outstanding (i) any options, warrants or other rights to purchase from Vista any
capital stock of Vista; (ii) any securities convertible into or exchangeable for
shares of such stock; or (iii) any other commitments of any kind for the
issuance of additional shares of capital stock or options, warrants or other
securities of Vista. No shares of capital stock of Vista are held in the
treasury of Vista.
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3.03 No Subsidiaries. Vista does not have, and has not since the
---------------
date of its incorporation had, directly or indirectly, any equity interest in
any other corporation, partnership, joint venture or other entity.
3.04 Authorization.
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Except for approval by the stockholders of Vista, which approval shall
be unanimous (regardless of whether unanimity is required by the Illinois
Business Corporation Law) and shall be obtained prior to the Effective Date, the
execution and delivery by Vista of this Agreement and Plan of Merger and the
consummation by Vista of the Merger and the other transactions contemplated
hereby have been duly authorized by all requisite corporate action. This
Agreement and Plan of Merger has been duly executed by Vista. This Agreement and
Plan of Merger and all other agreements and obligations entered into and
undertaken in connection with the Merger and the other transactions contemplated
hereby to which Vista is a party constitute the valid and legally binding
obligations of Vista, enforceable against Vista in accordance with their
respective terms. The execution, delivery and performance by Vista of this
Agreement and Plan of Merger and the agreements provided for herein, and the
consummation by Vista of the transactions contemplated hereby and thereby, will
not, with or without the giving of notice or the passage of time or both, (a)
violate the provisions of any law, rule or regulation applicable to Vista; (b)
violate the provisions of the Articles of Incorporation or Bylaws of Vista; (c)
violate any judgment, decree, order or award of any court, governmental body or
arbitrator; or (d) conflict with or result in the breach or termination of any
term or provision of, or constitute a default under, or cause any acceleration
under, or cause the creation of any lien, charge or encumbrance upon the
properties or assets of Vista pursuant to, any indenture, mortgage, deed of
trust or other instrument or agreement to which Vista is a party or by which
Vista or any of its properties is or may be bound. Schedule 3.04 attached hereto
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sets forth a true, correct and complete list of all consents and approvals of
third parties that are required in connection with the consummation by Vista of
the Merger and the other transactions contemplated by this Agreement and Plan of
Merger.
3.05 Financial Statements.
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Except as may be set forth on Schedule 3.05 attached hereto:
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(a) Vista has previously delivered to Peritus the unaudited
balance sheet of Vista as of December 31, 1995 (the "Current Balance Sheet") and
the related profit and loss statement
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of Vista for the 12-month period then ended (collectively, the "Current
Financial Statements"). The Current Financial Statements and the Interim
Financial Statements (as defined below) to be delivered pursuant to Subsection
6.03 hereof (collectively, the "Financial Statements") have been (or, in the
case of the Interim Financial Statements, will be) prepared in accordance with
generally accepted accounting principles applied consistently with past
practices and have been (or will be) certified by Vista's chief financial
officer. The date of the Current Balance Sheet is hereinafter referred to as the
"Balance Sheet Date."
(b) The Financial Statements fairly present, as of their
respective dates, the financial condition, retained earnings, assets and
liabilities of Vista and the results of operations of Vista's business for the
periods indicated. With respect to contracts and commitments for the sale of
goods or the provision of services by Vista, the Financial Statements contain
and reflect adequate reserves, which are consistent with previous reserves
taken, for all reasonably anticipated material losses and costs and expenses.
The amounts shown as accrued for current and deferred income and other taxes in
the Financial Statements are sufficient for the payment of all accrued and
unpaid federal, state and local income taxes, interest, penalties, assessments
or deficiencies applicable to Vista, whether disputed or not, for the applicable
period then ended and periods prior thereto.
3.06 Absence of Undisclosed Liabilities.
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Except as and to the extent (a) reflected and reserved against in the
Current Balance Sheet, (b) set forth on Schedule 3.06 attached hereto, or (c)
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incurred in the ordinary course of business after the Balance Sheet Date and not
material in amount, either individually or in the aggregate, Vista has no
liability or obligation, secured or unsecured, whether accrued, absolute,
contingent, unasserted or otherwise, which is material to the condition
(financial or otherwise) or the assets, properties, business or prospects of
Vista. For purposes of this Subsection 3.06, "material" means any amount in
excess of $2,000.
3.07 Litigation.
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Except as set forth on Schedule 3.07 attached hereto, (a) there is no
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action, suit or proceeding to which Vista is a party (either as a plaintiff or
defendant) pending or, to the best knowledge of Vista or any Stockholder,
threatened before any court or governmental agency, authority, body or
arbitrator and, to the best knowledge of Vista or any Stockholder, there is no
basis for any such action, suit or proceeding; (b) neither Vista nor, to the
best knowledge of Vista, any Stockholder or any officer, director or employee of
Vista has been permanently or temporarily enjoined
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by any order, judgment or decree of any court or any governmental agency,
authority or body from engaging in or continuing any conduct or practice in
connection with the business, assets, or properties of Vista; and (c) there is
not in existence on the date hereof any order, judgment or decree of any court,
tribunal or agency enjoining or requiring Vista to take any action of any kind
with respect to its business, assets or properties.
3.08 Insurance.
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Since January 1, 1996, Vista has not maintained any insurance
policies. Vista has no outstanding claims or any dispute with any previous
insurance carrier of Vista regarding claims, settlements or premiums and has not
failed to give any notice or present any claim under any insurance policy
maintained by Vista prior to January 1, 1996 in due and timely fashion.
3.09 Personal Property.
-----------------
Schedule 3.09 attached hereto sets forth (i) a true, correct and
-------------
complete list of all items of tangible personal property (A) owned by Vista as
of the date hereof having either a net book value per unit or an estimated fair
market value per unit in excess of $500, or (B) not owned by Vista but in the
possession of or used or useful in the business of Vista and having rental
payments therefor in excess of $500 per month or $6,000 per year (collectively,
the "Personal Property"); and (ii) a description of the owner of, and any
agreement relating to the use of, each item of Personal Property not owned by
Vista and the circumstances under which such Property is used. Except as
disclosed in Schedule 3.09:
-------------
(a) Vista has good and marketable title to each item of
Personal Property owned or purported to be owned by Vista free and clear of all
liens, leases, encumbrances, claims under bailment and storage agreements,
equities, conditional sales contracts, security interests, charges and
restrictions, except for liens, if any, for personal property taxes not due;
(b) no Stockholder and no officer, director or employee of
Vista, nor any spouse, child or other relative or affiliate thereof, owns
directly or indirectly, in whole or in part, any of the Personal Property
described in Schedule 3.09;
-------------
(c) each item of Personal Property not owned by Vista is in
such condition that upon the return of such property to its owner in its present
condition at the end of the relevant lease term or as otherwise contemplated by
the applicable agreement between Vista and the owner or lessor thereof, the
obligations of Vista to such owner or lessor will be discharged;
-11-
(d) the Personal Property is in good operating condition and
repair, normal wear and tear excepted, is currently used by Vista in the
ordinary course of its business and normal maintenance has been consistently
performed with respect to the Personal Property; and
(e) Vista owns or otherwise have the right to use all of the
Personal Property now used or useful in the operation of its business or the use
of which is necessary for or useful in the performance of any material contract,
letter of intent or proposal to which Vista is a party.
3.10 Intangible Property.
-------------------
Schedule 3.10 attached hereto sets forth: (i) a true, correct and
-------------
complete list and, where appropriate, a description of, all items of intangible
property owned by, or used or useful in connection with the business of, Vista,
including, but not limited to, trade secrets, know-how, any other confidential
information of Vista, United States and foreign patents, trade names, trademarks
and service marks, trade name and trademark registrations, copyrights and
copyright registrations, and applications for any of the foregoing (the
"Intangible Property"); and (ii) a true, correct and complete list of all
licenses or similar agreements or arrangements to which Vista is a party, either
as licensee or licensor, with respect to the Intangible Property. Except as
otherwise disclosed in Schedule 3.10:
-------------
(a) Vista is the sole and exclusive owner of all right, title
and interest in and to the Intangible Property and all designs, permits, labels
and packages used on or in connection therewith, free and clear of all liens,
security interests, charges, encumbrances, equities or other adverse claims;
(b) Vista has the right and authority to use, and Peritus will
have the right and authority to use after the Effective Date, the Intangible
Property in connection with the conduct of its business in the manner presently
conducted, and such use or continuing use does not and will not conflict with,
infringe upon or violate any rights of any other person, corporation or entity;
(c) neither Vista nor any of the Stockholders has received
notice of, or has any knowledge of any basis for, a pleading or threatened
claim, interference action or other judicial or adversarial proceeding against
Vista that any of the operations, activities, products, services or publications
of Vista or any of its customers or distributors infringes or will infringe any
patent, trademark, trade name, copyright, trade secret or other property right
of a third party, or that it is
-12-
illegally or otherwise using the trade secrets, formulae or property rights of
others;
(d) there are no outstanding, nor to the best knowledge of
Vista or any Stockholder, threatened disputes or other disagreements with
respect to any licenses or similar agreements or arrangements described in
Schedule 3.10 or with respect to infringement by a third party of any of the
-------------
Intangible Property;
(e) the Intangible Property owned or licensed by Vista is
sufficient to conduct Vista's business as presently conducted;
(f) Vista has taken all steps reasonably necessary to protect
its right, title and interest in and to the Intangible Property and the
continued use of the Intangible Property;
(g) no Stockholder and no officer, director or employee of
Vista, nor any spouse, child or other relative or affiliate thereof, owns
directly or indirectly, in whole or in part, any of the Intangible Property; and
(h) neither Vista nor any Stockholder has any knowledge that
any third party is infringing, or will threaten to infringe, upon or otherwise
violate any of the Intangible Property in which Vista has ownership rights.
3.11 Leases.
------
Schedule 3.11 attached hereto sets forth (a) a true, correct and
-------------
complete list as of the date hereof of all leases of real property, identifying
separately each ground lease, to which Vista is a party (collectively, the
"Leases"). True, correct and complete copies of all Leases and all amendments,
modifications and supplemental agreements thereto have previously been delivered
by Vista to Peritus. The Leases are in full force and effect, are binding and
enforceable against each of the parties thereto in accordance with their
respective terms and, except as set forth on Schedule 3.11, have not been
-------------
modified or amended since the date of delivery to Peritus. No party to any
Lease has sent written notice to the other claiming that such party is in
default thereunder and that such default remains uncured. Except as set forth
on Schedule 3.11, there has not occurred any event which would constitute a
-------------
breach of or default in the performance of any covenant, agreement or condition
contained in any Lease, nor has there occurred any event which with the passage
of time or the giving of notice or both would constitute such a breach or
material default. Vista is not obligated to pay any leasing or
-13-
brokerage commission relating to any Lease and, except as set forth on Schedule
--------
3.11, will not have any obligation to pay any leasing or brokerage commission
----
upon the renewal of any Lease. Except as set forth on Schedule 3.11, no
-------------
construction, alteration or other leasehold improvement work with respect to any
of the Leases remains to be paid for or to be performed by Vista. The Financial
Statements contain adequate reserves to provide for the restoration of the
property subject to the Leases at the end of the respective Lease terms, to the
extent required by the Leases.
3.12 Real Estate.
-----------
Vista does not own, and since the date of its incorporation has not
owned, directly or indirectly, any real estate.
3.13 Accounts Receivable.
-------------------
Schedule 3.13 attached hereto sets forth a true, correct and complete
-------------
list of the accounts and notes receivable of Vista (the "Accounts Receivable"),
including the aging thereof as of the date hereof. All Accounts Receivable
arose out of the sales of goods or services in the ordinary course of business
and are collectible in the face value thereof within 60 days after the date of
invoice, using normal collection procedures, net of the reserve for doubtful
accounts set forth thereon, which reserve is adequate and was calculated in
accordance with generally accepted accounting principles consistently applied.
3.14 Tax Matters.
-----------
(a) Except as set forth on Schedule 3.14 attached hereto:
-------------
(i) Within the times and in the manner prescribed by
law, Vista has filed all federal, state and local tax returns and all tax
returns for foreign countries, provinces and other governing bodies having
jurisdiction to levy taxes upon them which are required to be filed;
(ii) Vista has paid all taxes, interest, penalties,
assessments and deficiencies which have become due or which have been claimed to
be due, including, without limitation, income, franchise, real estate, sales and
withholding taxes and other employee benefits, taxes and imposts;
(iii) To the best knowledge of Vista or any of the
Stockholders, all tax returns filed by Vista for the taxable years ending
December 31, 1989 through December 31, 1994 constitute complete and accurate
representations of the respective
-14-
tax liabilities of Vista for such years and accurately set forth all items (to
the extent required to be included or reflected in such returns) relevant to
their future tax liabilities, including the tax bases of their properties and
assets;
(iv) Vista has not waived or extended any applicable
statute of limitations relating to the assessment of federal, state, local or
foreign taxes;
(v) No examinations of the federal, state, local or
foreign tax returns of Vista is currently in progress nor, to the best knowledge
of Vista or any of the Stockholders, threatened and no deficiencies have been
asserted or assessed against Vista as a result of any audit by the Internal
Revenue Service or any state or local taxing authority and no such deficiency
has been proposed or threatened;
(vi) Vista has not filed a consent pursuant to Section
341(f) of the Internal Revenue Code of 1986, as amended (the "Code") relating to
collapsible corporations, nor has Vista agreed to have Section 341(f)(2) of the
Code apply to any disposition of a subsection (f) asset (as such term is defined
in Section 341(f)(4) of the Code); and
(vii) Since December 31, 1990, Vista has not participated
in or cooperated with an international boycott, within the meaning of Section
999 of the Code, nor has Vista had operations which are or may hereafter become
reportable under Section 999 of the Code.
(b) Schedule 3.14 attached hereto sets forth those taxable
-------------
years for which the tax returns of Vista have been reviewed or audited by
applicable federal, state, local and foreign taxing authorities and those tax
years for which said tax returns have received clearances or other indications
of approval from applicable federal, state, local and foreign taxing
authorities. To the best knowledge of Vista or any of the Stockholders, no issue
or issues have been raised in connection with any prior or pending review or
audit of said federal, state, local or foreign tax returns which Vista or any of
the Stockholders reasonably believes may be expected to be raised in the future
by such taxing authorities in connection with the audit or review of the tax
returns of Vista.
3.15 Books and Records.
-----------------
The general ledgers and books of account of Vista, all federal, state
and local income, franchise, property and other tax returns filed by Vista are
in all material respects complete and correct and have been maintained in
accordance with good business
-15-
practice and in accordance with all applicable procedures required by laws and
regulations.
3.16 Contracts and Commitments.
-------------------------
(a) Schedule 3.16 attached hereto contains a true, complete
-------------
and correct list and description of the following contracts and agreements,
whether written or oral (collectively, the "Contracts"):
(i) all loan agreements, indentures, mortgages and
guaranties to which Vista is a party or by which Vista or any of its property is
bound;
(ii) all pledges, conditional sale or title retention
agreements, security agreements, equipment obligations, personal property leases
and lease purchase agreements to which Vista is a party or by which Vista or any
of its property is bound;
(iii) all contracts, agreements, commitments, purchase
orders or other understandings or arrangements to which Vista is a party or by
which Vista or any of its property is bound which (A) involve payments or
receipts by Vista of more than $500 in the case of any single contract,
agreement, commitment, understanding or arrangement under which full performance
(including, without limitation, payment) has not been rendered by all parties
thereto or (B) which may materially adversely affect the condition (financial or
otherwise) or the properties, assets, business or prospects of Vista;
(iv) all employment and consulting agreements, executive
compensation plans, bonus plans, deferred compensation agreements, pension
plans, retirement plans, employee stock option or stock purchase plans and group
life, health and accident insurance and other employee benefit plans,
agreements, arrangements or commitments to which Vista is a party or by which
Vista or any of its property is bound;
(v) all agency, distributor, sales representative,
franchise or similar agreements to which Vista is a party or by which Vista or
any of its property is bound;
(vi) all contracts, agreements or other understandings
or arrangements between Vista and any of the Stockholders or their affiliates;
(vii) all leases, whether operating, capital or
otherwise, under which Vista is lessor or lessee;
-16-
(viii) all contracts, agreements and other documents or
information relating to past disposal of waste (whether or not hazardous), and
sales of steel scrap, prototypes, tools and dies;
(ix) all contracts, agreements or other arrangements
imposing a non-competition or non-solicitation obligation on Vista; and
(x) any other material agreements or contracts entered
into by Vista.
(b) Except as set forth on Schedule 3.16:
-------------
(i) each Contract is a valid and binding agreement of
Vista, enforceable against Vista in accordance with its terms, and neither Vista
nor any Stockholder has any knowledge that any Contract is not a valid and
binding agreement of the other parties thereto;
(ii) Vista has fulfilled all material obligations
required pursuant to the Contracts to have been performed by Vista on its part
prior to the date hereof or prior to the Effective Date, as appropriate, and
Vista has no reason to believe that it will not be able to fulfill, when due,
all of its obligations under the Contracts which remain to be performed after
the date hereof;
(iii) Vista is not in breach of or default under any
Contract, and no event has occurred which with the passage of time or giving of
notice or both would constitute such a default, result in a loss of rights or
result in the creation of any lien, charge or encumbrance, thereunder or
pursuant thereto;
(iv) to the best knowledge of Vista or any of the
Stockholders, there is no existing breach or default by any other party to any
Contract, and no event has occurred which with the passage of time or giving of
notice or both would constitute a default by such other party, result in a loss
of rights or result in the creation of any lien, charge or encumbrance
thereunder or pursuant thereto;
(v) there are not and, since June 30, 1995, have not
been, any claims of a non-routine nature relating to Vista by customers of Vista
under any warranties, whether express or implied;
(vi) Vista is not restricted by any Contract from
carrying on its business anywhere in the world; and
-17-
(vii) Vista has no written or oral contracts to sell
products or perform services which are expected to be performed at, or to result
in, a loss.
(c) Vista has not been suspended or debarred from bidding on
contracts or subcontracts with any governmental entity; no such suspension or
debarment has been threatened or initiated; and the consummation of the
transactions contemplated by this Agreement and Plan of Merger will not result
in any such suspension or debarment of Vista or Peritus (assuming that no such
suspension or debarment will result solely from the identity of Peritus). Except
as described on Schedule 3.16, Vista has not been and is not now being audited
-------------
or investigated by the United States Government Accounting Office, the United
States Department of Defense or any of its agencies, the Defense Contract Audit
Agency, the contracting or auditing function of any other governmental entity
with which Vista is contracting, the United States Department of Justice, the
Inspector General of any United States governmental entity, or any prime
contractor with a governmental entity; nor, to the best knowledge of Vista or
any Stockholder, has any such audit or investigation been threatened. To the
best knowledge of Vista or any Stockholder, except as described on Schedule
--------
3.16, there is no valid basis for (i) the suspension or debarment of Vista from
----
bidding on contracts or subcontracts with any governmental entity or (ii) any
claim (including any claim for a return of funds to the government) pursuant to
an audit or investigation by any of the entities named in the foregoing
sentence. Vista has no agreements, contracts or commitments which require it to
obtain or maintain a security clearance with any governmental entity.
(d) To the best knowledge of Vista or any Stockholder no basis
exists for any of the following with respect to any of Vista's contracts or
subcontracts with any governmental entity: (i) a Termination for Default (as
provided in 48 C.F.R. Ch. 1 (S)(S)52.249-8, 52.249-9 or similar sections), (ii)
a Termination for Convenience (as provided in 48 C.F.R. Ch. 1 (S)(S)52.249-1,
52.249-2 or similar sections), or (iii) a Stop Work Order (as defined in 48
C.F.R. Ch. (S)52.212-13 or similar sections); and neither Vista nor any
Stockholder has any reason to believe that funding may not be provided under any
contract or subcontract of Vista with any governmental entity in the upcoming
federal fiscal year.
(e) True, correct and complete copies of all Contracts have
previously been delivered by Vista to Peritus.
-18-
3.17 Compliance with Agreements and Laws.
-----------------------------------
(a) Vista has all requisite licenses, permits and
certificates, including environmental, health and safety permits, from federal,
state and local authorities necessary to conduct its business and own and
operate its assets (collectively, the "Permits"). Schedule 3.17 attached hereto
-------------
sets forth a true, correct and complete list of all such Permits, copies of
which have previously been delivered by Vista to Peritus. Vista is not in
violation of any law, regulation or ordinance (including, without limitation,
laws, regulations or ordinances relating to building, zoning, environmental,
disposal of hazardous substances, land use or similar matters) relating to its
properties. Except as set forth on Schedule 3.17, the business of Vista as
-------------
conducted since December 31, 1992 has not violated, on the date hereof does not
violate, and on the Effective Date will not violate, in any material respect,
any federal, state, local or foreign laws, regulations or orders (including, but
not limited to, any of the foregoing relating to employment discrimination,
occupational safety, environmental protection, hazardous waste, conservation,
government contracting, export controls, or corrupt practices), the enforcement
of which would have a material adverse effect on the results of operations,
condition (financial or otherwise), assets, properties, business or prospects of
Vista. Except as set forth on Schedule 3.17, Vista has not received any notice
-------------
or communication from any federal, state or local governmental or regulatory
authority or otherwise, since December 31, 1992, of any such violation or
noncompliance.
(b) Vista is not in violation of any federal, state, county or
municipal authority law, ruling, order, decree, regulation, permit, or other
environmental or hazardous waste requirement applicable to Vista, any of its
properties or assets, or any part thereof, relating to health, safety,
pollution, hazardous waste, environmental or other similar matters, which has
not been entirely corrected and which has or will have a material adverse impact
on the transactions contemplated herein. Vista has not received any notice from
any federal, state, county or municipal authority alleging any such violation.
(c) For purposes of this Subsection 3.17, "hazardous waste"
means "hazardous waste" as defined in the Resource Conservation and Recovery
Act, as amended, 42 U.S.C. (S)6921 et seq., and the regulations adopted pursuant
-- ---
thereto.
3.18 Employee Relations.
------------------
(a) Vista is in compliance with all federal, state and
municipal laws respecting employment and employment practices, terms and
conditions of employment, and wages and
-19-
hours, and is not engaged in any unfair labor practice, and there are no arrears
in the payment of wages or social security taxes.
(b) Except as set forth on Schedule 3.18 attached hereto:
-------------
(i) none of the employees of Vista is represented, or at
any time since the date of incorporation of Vista and while an employee of Vista
has been represented, by any labor union;
(ii) there is no unfair labor practice complaint against
Vista pending before the National Labor Relations Board or any state or local
agency;
(iii) there is no pending labor strike or other material
labor trouble affecting Vista (including, without limitation, any organizational
drive);
(iv) there is no material labor grievance pending against
Vista;
(v) there is no pending representation question
respecting the employees of Vista;
(vi) Vista is not, and since the date of its
incorporation has not been, a party to any collective bargaining agreement; and
(vii) Vista has no continuing obligation for health, life,
medical insurance or other similar fringe benefits to any former employee of
Vista.
(c) Schedule 3.18 sets forth a true, correct and complete list
-------------
of the current payroll of Vista, including the job descriptions and salary or
wage rates of its employees, showing separately for each such person who
received (or is entitled or expected to receive) an annual salary in excess of
$50,000 the maximum amounts paid or payable as salary and bonus payments for the
fiscal year ending December 31, 1995.
(d) For purposes of this Subsection 3.18, the term "employee"
shall be construed to include sales agents and other independent contractors who
spend a majority of their working time on the business of Vista.
3.19 Employee Benefit Plans.
----------------------
(a) Employee Plans. Schedule 3.19 attached hereto contains a
-------------- -------------
true, correct and complete list of all pension,
-20-
benefit, profit sharing, retirement, deferred compensation, welfare, insurance,
disability, bonus, vacation pay, severance pay and other similar plans, programs
and agreements, whether reduced to writing or not, relating to Vista's
employees, or maintained at any time since January 1, 1991 by Vista or by any
other member (hereinafter, "Affiliate") of any controlled group of corporations,
group of trades or businesses under common control, or affiliated service group
(as defined for purposes of Section 414(b), (c) and (m), respectively, of the
Code) (the "Employee Plans") and, except as set forth on Schedule 3.19 attached
-------------
hereto, Vista has no obligations, contingent or otherwise, past or present,
under applicable law or the terms of any Employee Plan.
(b) Absence of Certain Plans. Neither Vista nor any Affiliate
------------------------
has ever had an obligation to contribute to a multiemployer plan (as defined in
Section 400(a)(3) of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA")). Neither Vista nor any Affiliate has ever maintained an
employee benefit plan which is or was subject to any of Section 412 of the Code,
Part 3 of Subtitle B of Title I of ERISA or Title IV of ERISA.
(c) Prohibited Transactions. Neither Vista nor any of its
-----------------------
Affiliates, directors, officers, employees or agents, or any "party in interest"
or "disqualified person," as such terms are defined in Section 3 of ERISA and
Section 4975 of the Code, has, with respect to any Employee Plan, engaged in or
been a party to any nonexempt "prohibited transaction," as such term is defined
in Section 4975 of the Code or Section 406 of ERISA, in connection with which,
directly or indirectly, Peritus or any of its Affiliates, directors or employees
or any Employee Plan or any related funding medium could be subject to either a
penalty assessed pursuant to Section 502(i) of ERISA or a tax imposed by Section
4975 of the Code.
(d) Compliance. With respect to all Employee Plans, Vista and
----------
its Affiliates are in compliance with the requirements prescribed by any and all
statutes, orders or governmental rules or regulations currently in effect,
including, but not limited to, ERISA, the Code and any such requirements
administered by the U.S. Department of Labor, applicable to such Employee Plans.
Vista and its Affiliates have in all respects performed all obligations required
to be performed by them under, and is not in violation in any respect of, and
there has been no default or violation by any other party with respect to, any
of the Employee Plans. Except as set forth on Schedule 3.19 attached hereto,
-------------
neither Vista nor any Affiliate has failed to pay any amounts due and owing as
required by the terms of any Employee Plan.
-21-
(e) Retiree Benefits. Except as set forth in Schedule 3.19, there
---------------- -------------
are no unfunded obligations under any Employee Plan providing benefits after
termination of employment to any employee or former employee of Vista (or to any
beneficiary of such employee or former employee), including but not limited to
health or life insurance benefits for retirees and deferred compensation. No
such plan contains any provisions, and no commitments or agreements exist, which
in any way would limit or prohibit Peritus from amending any such plan to reduce
or eliminate such retiree benefits.
(f) Copies of Employee Plans and Related Documents. Vista has
----------------------------------------------
previously delivered to Peritus true, correct and complete copies of all
Employee Plans which have been reduced to writing and written descriptions of
all Employee Plans which have not been reduced to writing, and all agreements,
including trust agreements and insurance contracts, related to such Employee
Plans, and the Summary Plan Description and all modifications thereto for each
Employee Plan communicated to employees.
(g) Qualifications. Each Employee Plan intended to qualify under
--------------
Section 401(a) of the Code has been determined by the Internal Revenue Service
to so qualify, and the trusts created thereunder have been determined to be
exempt from tax under the provisions of Section 501(a). Each Employee Plan
which is a funded welfare benefit plan intended to be exempt from tax under the
provisions of Section 501(c)(9) of the Code has been determined by the Internal
Revenue Service to be so exempt. Copies of all determination letters with
respect to each such Employee Plan have been previously delivered by Vista to
Peritus, and nothing has since occurred, or will occur prior to the Effective
Date, which might cause the loss of such qualification or exemption, no such
Employee Plan has been operated in a manner which would cause it to be
disqualified in operation, and all such Employee Plans have been administered in
compliance with and consistent with all applicable requirements of the Code and
ERISA, including, without limitation, all reporting, notice, and disclosure
requirements.
(h) Funding Status, Etc.
-------------------
(i) With respect to each Employee Plan which is a qualified
defined contribution pension, profit-sharing or stock bonus plan, as defined in
ERISA, all employer contributions accrued for plan years ending prior to the
Effective Date under the Plan terms and applicable law have been made by Vista.
(ii) All premiums or other payments required by the terms of
any group or individual insurance policies and
-22-
programs maintained by Vista and covering any present or former employees of
Vista with respect to all periods up to and including the Effective Date have
been fully paid for the length of the obligation. To the extent not heretofore
satisfied or accrued on the Current Balance Sheet, there are no welfare benefits
not fully covered by third-party insurance policies or programs relating to
claims incurred, or which may be incurred, by present or former employees of
Vista on or before the Effective Date.
(i) Claims and Litigation. Except as set forth on Schedule 3.19,
--------------------- --------------
there are no threatened or pending claims, suits or other proceedings by present
or former employees of Vista or its affiliates, plan participants, beneficiaries
or spouses of any of the above, the Internal Revenue Service, or any other
person or entity involving any Employee Plan, including, without limitation,
claims against the assets of any trust involving any Employee Plan, or any
rights or benefits thereunder, other than ordinary and usual claims for benefits
by participants or beneficiaries, including, without limitation, claims pursuant
to domestic relations orders.
(j) No Implied Rights. Nothing expressed or implied herein shall
-----------------
confer upon any past or present employee of Vista, his or her representatives,
beneficiaries, successors and assigns, nor upon any collective bargaining agent,
any rights or remedies of any nature, including, without limitation, any rights
to employment or continued employment with Vista, Peritus, or any successor or
affiliate.
(k) Liabilities. Except as heretofore accrued on the Current
-----------
Financial Statements or set forth on Schedule 3.19, there are no liabilities
-------------
with respect to any Employee Plan which liability relates to any period prior to
the Effective Date, including, without limitation, any taxes, accrued vacation
or sick pay (whether or not vested), accrued vacation, sick and personal leaves,
employee policies, or employee benefit claims. Without limitation of the
foregoing, Schedule 3.19 attached hereto sets forth all amounts of severance pay
-------------
(or the method of calculating such amounts based on the exact date of
effectiveness of the Merger) to which employees of Vista (i) will be entitled on
the Effective Date by reason of the consummation of the transactions
contemplated by this Agreement and Plan of Merger or (ii) will have accrued
prior to the Effective Date and which will be payable to them upon any
subsequent termination of their employment after the Effective Date.
(l) Schedule 3.19 discloses each: (i) agreement with any
-------------
director, executive officer or other key employee of Vista (A) the benefits of
which are contingent, or the terms of which are materially altered, upon the
occurrence of a transaction
-23-
involving Vista of the nature of any of the transactions contemplated by this
Agreement and Plan of Merger, (B) providing any term of employment or
compensation guarantee or (C) providing severance benefits or other benefits
after the termination of employment of such director, executive officer or key
employee; (ii) agreement, plan or arrangement under which any person may receive
payments from Vista or any Stockholder that may be subject to the tax imposed by
Section 4999 of the Code or included in the determination of such person's
"parachute payment" under Section 280G of the Code; and (iii) agreement or plan
binding Vista or any Stockholder, including, without limitation, any stock
option plan, stock appreciation rights plan, restricted stock plan, stock
purchase plan, severance benefit plan or employee benefit 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 and Plan of Merger 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 and Plan of Merger.
3.20 Absence of Certain Changes or Events.
------------------------------------
(a) Except as set forth on Schedule 3.20 attached hereto,
-------------
since the Balance Sheet Date, Vista has not entered into any transaction which
is not in the usual and ordinary course of business, and, without limiting the
generality of the foregoing, Vista has not:
(i) incurred any material obligation or liability for
borrowed money;
(ii) discharged or satisfied any lien or encumbrance or paid
any obligation or liability other than current liabilities reflected in the
Current Balance Sheet;
(iii) mortgaged, pledged or subjected to lien, charge or other
encumbrance any of their respective properties or assets;
(iv) sold or purchased, assigned or transferred any of its
tangible assets or cancelled any debts or claims, except for inventory sold and
materials and supplies purchased in the ordinary course of business;
(v) made any material amendment to or termination of any
Contract or done any act or omitted to do any act which would cause the breach
of any Contract;
(vi) suffered any losses of personal or real property,
whether insured or uninsured, and whether or not in the
-24-
control of Vista, in excess of $1,000 in the aggregate, or waived any rights of
any value;
(vii) authorized any declaration or payment of dividends by
Vista, or paid any such dividends, or authorized any transfer of assets of any
kind whatsoever by Vista to any of the Stockholders with respect to any shares
of Vista's capital stock;
(viii) authorized or issued recall notices for any of its
products or initiated any safety investigations;
(ix) received notice of any litigation, warranty claim or
products liability claims;
(x) made any material change in the terms, status or
funding condition of any Employee Plan, as defined in Subsection 3.19 hereof;
(xi) engaged any new employee for a salary in excess of
$50,000 per annum;
(xii) made, or committed to make, any changes in the
compensation payable to any officer, director, employee or agent of Vista, or
any bonus payment or similar arrangements made to or with any of such officers,
directors, employees or agents;
(xiii) incurred any capital expenditure in excess of $2,000
in any instance or $5,000 in the aggregate;
(xiv) made any material alteration in the manner of keeping
the books, accounts or records of Vista or in the accounting practices therein
reflected; or
(xv) suffered any material adverse change in the
consolidated results of operations, condition (financial or otherwise), assets,
liabilities (whether absolute, accrued, contingent or otherwise), business or
prospects of Vista.
(b) Neither Vista nor any of the Stockholders has knowledge of
any existing or threatened occurrence, event or development which, as far as can
be reasonably foreseen, could have a material adverse effect on the business,
properties, assets, condition (financial or otherwise) or prospects of Vista.
3.21 Customers.
---------
Schedule 3.21 attached hereto sets forth a true, correct and complete
-------------
list of (a) the names and addresses of each customer of Vista which accounted
(or is expected to account) for more than
-25-
20% of the revenues of Vista in the fiscal year ending December 31, 1995. Except
as set forth on Schedule 3.21, Vista has good customer relations and none of the
-------------
customers of Vista has notified Vista or any Stockholder that it intends to
discontinue its relationship with Vista.
3.22 Suppliers.
---------
Schedule 3.22 attached hereto sets forth a true, correct and complete
-------------
list of (i) the names and addresses of each of the suppliers of Vista which
accounted (or is expected to account) for a dollar volume of purchases by Vista
in excess of $3,000 for the fiscal year ending December 31, 1995, and (ii) the
present sole source suppliers of significant goods or services, other than
utilities, for any product with respect to which practical alternative sources
of supply are not available on comparable terms and conditions, indicating the
contractual arrangements for continued supply from each such supplier. Except
as set forth on Schedule 3.22, Vista (a) has good relations with all of its
-------------
suppliers, and (b) is not more than 30 days in arrears in any trade accounts
payable or other payments owing to any supplier.
3.23 Warranty and Product Liability Claims.
-------------------------------------
Schedule 3.23 attached hereto contains a true, correct and complete
-------------
list of all warranty, product liability and maintenance claims made against
Vista from December 31, 1994 through the date hereof, the current status of all
such claims and the costs of all actions taken in satisfaction of such claims.
All information relative to such claims and those arising thereafter shall be
available to Peritus from and after the date hereof.
3.24 Prepayments and Deposits.
------------------------
Schedule 3.24 attached hereto sets forth all prepayments and deposits,
-------------
which have been received by Vista as of the date hereof, from customers for
products to be shipped, or services to be performed, after the Effective Date.
3.25 Indebtedness to and from Officers, Directors and Stockholders.
-------------------------------------------------------------
Except as set forth on Schedule 3.25 attached hereto, Vista is not
-------------
indebted, directly or indirectly, to any person who is an officer or director of
Vista, or a Stockholder, or any affiliate of any such person, in any amount
whatsoever, other than for salaries for services rendered or reimbursable
business expenses, all of which have been reflected on the Current Financial
Statements, and no such officer, director, Stockholder
-26-
or affiliate is indebted to Vista except for advances made to employees of Vista
in the ordinary course of business to meet reimbursable business expenses
anticipated to be incurred by such obligor.
3.26 Banking Facilities.
------------------
Schedule 3.26 attached hereto sets forth a true, correct and complete
-------------
list of:
(a) each bank, thrift institution or other financial institution
in which Vista has an account or safety deposit box and the numbers of the
accounts or safety deposit boxes maintained by Vista thereat; and
(b) the names of all persons authorized to draw on each such
account or to have access to any such safety deposit box facility, together with
a description of the authority (and conditions thereof, if any) of each such
person with respect thereto.
3.27 Powers of Attorney and Suretyships.
----------------------------------
Except as set forth on Schedule 3.27 attached hereto, Vista has no
-------------
general or special powers of attorney outstanding (whether as grantor or grantee
thereof) or has any obligation or liability (whether actual, accrued, accruing,
continent or otherwise) as guarantor, surety, co-signer, endorser, co-maker,
indemnitor or otherwise in respect of the obligation of any person, corporation,
partnership, joint venture, association, organization or other entity, except as
endorser or maker of checks or letters of credit, respectively, endorsed or made
in the ordinary course of business.
3.28 Conflicts of Interest.
---------------------
Except as set forth on Schedule 3.28 attached hereto, no officer,
-------------
director or Stockholder of Vista nor, to the best knowledge of Vista or any of
the Stockholders, any affiliate of any such person, now has or within the last
three (3) years had, either directly or indirectly:
(a) an equity or debt interest with a fair market value in excess
of $100,000 in any corporation, partnership, joint venture, association,
organization or other person or entity (other than Peritus) which furnishes or
sells or during such period furnished or sold services or products to Vista, or
purchases or during such period purchased from Vista any goods or services, or
otherwise does or during such period did business with Vista; or
-27-
(b) a beneficial interest (other than through Peritus) in any
contract, commitment or agreement to which Vista is or was a party or under
which any of them is or was obligated or bound or to which any of their
respective properties may be or may have been subject, other than stock options
and other contracts, commitments or agreements between Vista and such persons in
their capacities as employees, officers or directors of Vista.
3.29 Regulatory Approvals.
--------------------
Except for the filing of the articles of merger and any other Merger
Documents pursuant to the Illinois Business Corporation Law and the
Massachusetts Business Corporation Law, all consents, approvals, authorizations,
filings or other requirements prescribed by any law, rule or regulation which
must be obtained or satisfied by Vista and which are necessary for the execution
and delivery by Vista of this Agreement and Plan of Merger or any documents to
be executed and delivered by the Stockholders or Vista in connection herewith
are set forth on Schedule 3.29 attached hereto and have been, or prior to the
-------------
Effective Date will be, obtained, made and satisfied.
3.30 Disclosure.
----------
The information concerning Vista set forth in this Agreement and Plan
of Merger, the Exhibits and Schedules attached hereto and any document,
statement or certificate furnished or to be furnished to Peritus pursuant
hereto, does not and will not contain any untrue statement of a material fact or
omit to state a material fact required to be stated herein or therein or
necessary to make the statements and facts contained herein or therein, in light
of the circumstances in which they are made, not false and misleading. Vista
has disclosed to Peritus all material facts pertaining to the Merger and the
other transactions contemplated by this Agreement and Plan of Merger and the
Exhibits and Schedules hereto. Copies of all documents heretofore or hereafter
delivered or made available to Peritus pursuant to this Agreement and Plan of
Merger were or will be complete and accurate copies of such documents.
4. Representations and Warranties of Peritus
-----------------------------------------
Peritus represents and warrants to Vista as follows:
4.01 Organization and Authority.
--------------------------
Peritus is a corporation duly organized, validly existing and in good
standing under the laws of the Commonwealth of Massachusetts, and has all
requisite power and authority to own
-28-
its properties and to carry on its business as now being conducted. Peritus has
full power to execute and deliver this Agreement and Plan of Merger and the
agreements contemplated herein, and to consummate the transactions contemplated
hereby and thereby. Copies of the Articles of Incorporation and the By-laws of
Peritus, as amended to date, have been previously delivered to Vista, are
complete and correct, and no amendments have been made thereto or have been
authorized since the date thereof.
4.02 Capitalization of Peritus.
-------------------------
On the date hereof, Peritus's authorized capital stock consists of
3,760,000 shares of Peritus Class A Common Stock, of which 2,225,815 shares are
issued and outstanding, and 40,000 shares of Peritus Class B Common Stock, of
which 39,715 shares are issued and outstanding. All of the outstanding shares
of capital stock of Peritus have been, and on the Effective Date will be, duly
and validly issued and are, or will be, fully paid and non-assessable. Upon
issuance thereof to the Stockholders in connection with the Merger, all shares
of Peritus Class A Common Stock so issued will be validly issued, fully paid and
non-assessable.
4.03 Authorization.
-------------
Except for any approval by the stockholders of Peritus required by the
Massachusetts Business Corporation Law, which approval shall, if so required, be
obtained prior to the Effective Date, the execution and delivery by Peritus of
this Agreement and Plan of Merger, and the consummation by Peritus of the Merger
and the other transactions contemplated hereby, have been duly authorized by all
requisite corporate action. This Agreement and Plan of Merger and all other
agreements and written obligations entered into and undertaken in connection
with the Merger and the other transactions contemplated hereby constitute the
valid and legally binding obligations of Peritus, enforceable against Peritus in
accordance with their respective terms. The execution, delivery and performance
of this Agreement and Plan of Merger and the agreements provided for herein, and
the consummation by Peritus of the Merger and the other transactions
contemplated hereby and thereby, will not, with or without the giving of notice
or the passage of time or both, (a) violate the provisions of any law, rule or
regulation applicable to Peritus; (b) violate the provisions of Peritus's
Articles of Incorporation or By-laws; (c) violate any judgment, decree, order or
award of any court, governmental body or arbitrator; or (d) conflict with or
result in the breach or termination of any term or provision of, or constitute a
default under, or cause any acceleration under, or cause the creation of any
lien, charge or encumbrance upon the properties or assets of Peritus pursuant
to, any indenture,
-29-
mortgage, deed of trust or other agreement or instrument to which Peritus is a
party or by which Peritus is or may be bound. No consent or approval of any
third party is required in connection with the consummation by Peritus of the
Merger and the other transactions contemplated by this Agreement and Plan of
Merger.
4.04 Regulatory Approvals.
--------------------
Except for the filing of the articles of merger and any other Merger
Documents pursuant to the Massachusetts Business Corporation Law and the
Illinois Business Corporation Law, all consents, approvals, authorizations,
filings and other requirements prescribed by any law, rule or regulation which
must be obtained or satisfied by Peritus and which are necessary for the
consummation of the Merger and the other transactions contemplated by this
Agreement and Plan of Merger have been, or prior to the Effective Date will be,
obtained, made and satisfied.
4.05 Disclosure.
----------
No representation or warranty by Peritus in this Agreement and Plan of
Merger or in any Exhibit hereto, or in any list, statement, document or
information set forth in or attached to any Schedule delivered or to be
delivered pursuant hereto, contains or will contain any untrue statement of a
material fact or omits or will omit any material fact necessary in order to make
the statements contained therein not misleading.
5. Access to Information; Public Announcements
-------------------------------------------
5.01 Access to Management, Properties and Records.
--------------------------------------------
(a) From the date hereof until the Effective Date, Vista shall
afford the officers, attorneys, accountants and other authorized representatives
of Peritus free and full access upon reasonable notice and during normal
business hours to all management personnel, offices, properties, books and
records of Vista, so that Peritus may have full opportunity to make such
investigation as it shall desire to make of the management, business, properties
and affairs of Vista, and Peritus shall be permitted to make abstracts from, or
copies of, all such books and records. Vista and the Stockholders shall furnish
to Peritus such financial and operating data and other information as to the
business of Vista as Peritus shall reasonably request.
(b) Each of Vista and the Stockholders shall authorize the
release to Peritus of all files pertaining to the business or operations of
Vista held by any federal, state, county or local authorities, agencies or
instrumentalities. Vista's and the Stockholders' authorization shall
specifically waive all
-30-
previous claims of privilege or other restrictions, and in any case where a
release by a present or former employee of Vista is necessary, Vista and the
Stockholders shall exercise their respective best efforts to obtain such a
release.
5.02 Confidentiality.
---------------
(a) Vista and the Stockholders have furnished and will continue
to furnish Peritus, in connection with the Merger and the other transactions
contemplated hereby, with certain information which is either non-public,
confidential or proprietary in nature and which (i) is identified in writing as
being proprietary and confidential, (ii) is not already known to persons other
than Vista, the Stockholders, their representatives and third parties which have
entered into written non-disclosure agreements with Vista and (iii) has not been
independently developed by Peritus. All such information furnished to Peritus,
its directors, officers, employees, agents or representatives, including,
without limitation, attorneys, accountants, consultants, potential lenders,
investors and financial advisors (collectively, "representatives"), by Vista,
the Stockholders, or any of their respective representatives, and all analyses,
compilations, data, studies or other documents prepared by Peritus or its
representatives containing or based in whole or in part on any such furnished
information or reflecting Peritus's review of, or interest in, Vista is
hereinafter referred to as the "Information."
(b) Subject to the requirements of applicable law, Peritus hereby
agrees to use the Information solely in connection with the consummation of the
transactions contemplated by this Agreement and Plan of Merger and to transmit
the Information only to those representatives of Peritus who need to know the
Information.
5.03 Public Announcements.
--------------------
The parties agree that prior to the Effective Date any and all general
public pronouncements or other general public communications concerning this
Agreement and Plan of Merger and the transactions contemplated hereby, and the
timing, manner and content of such disclosures, shall be subject to the mutual
agreement of Vista and Peritus.
6. Pre-Effective Covenants of Vista
--------------------------------
From and after the date hereof and until the Effective Date:
-31-
6.01 Conduct of Business.
-------------------
Vista shall carry on its business diligently and substantially in the
same manner as heretofore and shall not make or institute any unusual or new
methods of manufacture, purchase, sale, shipment or delivery, provision of
services, lease, management, accounting or operation, and shall not ship or
deliver any quantity of products or provide any services in excess of normal
shipment, delivery or service provision levels, except as agreed to in writing
by Peritus. All of the property of Vista shall be used, operated, repaired and
maintained in a normal business manner consistent with past practice.
6.02 Absence of Material Changes.
---------------------------
Without the prior written consent of Peritus, Vista shall not:
(a) take any action to amend its charter documents or bylaws;
(b) issue any stock, bonds or other corporate securities or grant
any option or issue any warrant to purchase or subscribe for any of such
securities or issue any securities convertible into such securities;
(c) incur any obligation or liability (absolute or contingent),
except current liabilities incurred and obligations under contracts entered into
in the ordinary course of business;
(d) declare or make any payment or distribution to its
stockholders with respect to its stock or purchase or redeem any shares of its
capital stock;
(e) mortgage, pledge, or subject to any lien, charge or any other
encumbrance any of their respective assets or properties;
(f) sell, assign, or transfer any of its assets, except for
existing products and services sold in the ordinary course of business;
(g) cancel any debts or claims, except in the ordinary course of
business;
(h) merge or consolidate with or into any corporation or other
entity;
-32-
(i) make, accrue or become liable for any bonus, profit sharing
or incentive payment, except for accruals under existing plans, if any, or
increase the rate of compensation payable or to become payable by it to any of
its officers, directors or employees, other than increases in the ordinary
course of business consistent with past practice;
(j) make any election or give any consent under the Code or the
tax statutes of any state or other jurisdiction or make any termination,
revocation or cancellation of any such election or any consent or compromise or
settle any claim for past or present tax due;
(k) waive any rights of material value;
(l) modify, amend, alter or terminate any of its executory
contracts of a material value or which are material in amount;
(m) take or permit any act or omission constituting a breach or
default under any contract, indenture or agreement by which it or its properties
are bound;
(n) fail to (i) preserve the possession and control of its assets
and business, (ii) keep in faithful service its present officers and key
employees, (iii) preserve the goodwill of its consumers, suppliers, agents,
brokers and others having business relations with it, and (iv) keep and preserve
its business existing on the date hereof until the Effective Date;
(o) fail to operate its business and maintain its books, accounts
and records in the customary manner and in the ordinary and regular course of
business and maintain in good repair its business premises, fixtures, machinery,
furniture and equipment;
(p) enter into any lease, contract, agreement or understanding,
other than those entered into in the ordinary course of business calling for
payments which in the aggregate do not exceed $1,000 for each such lease,
contract, agreement or understanding;
(q) incur any capital expenditure in excess of $2,000 in an
instance or $5,000 in the aggregate;
(r) engage any new employee for a salary in excess of $50,000 per
annum;
(s) materially alter the terms, status or funding condition of
any Employee Plan; or
-33-
(t) commit or agree to do any of the foregoing in the future.
6.03 Delivery of Interim Financial Statements.
----------------------------------------
As promptly as possible following the last day of each month after the
date hereof until the Effective Date, and in any event within 20 days after the
end of each such month, Vista shall deliver to Peritus the balance sheet of
Vista and the related profit and loss statement of Vista for the one-month
period then ended, all certified by the chief financial officer of Vista to the
effect that such interim financial statements are prepared in accordance with
generally accepted accounting principles and fairly present the financial
condition of Vista as of the date thereof and for the period covered thereby
(collectively, the "Interim Financial Statements").
6.04 Communications with Customers and Suppliers.
-------------------------------------------
(a) Unless instructed otherwise by Peritus in writing, Vista will
continue to accept customer orders in the ordinary course of business and
consistent with past practice for all products and services offered by Vista but
expected to be shipped or performed after the Effective Date.
(b) Vista and Peritus will cooperate in communications with
suppliers and customers to accomplish the Merger on the Effective Date.
6.05 Compliance with Laws.
--------------------
Vista will comply with all laws and regulations which are applicable
to it or to the conduct of its business and will perform and comply with all
contracts, commitments and obligations by which it is bound.
6.06 Continued Truth of Representations and Warranties.
-------------------------------------------------
Neither Vista nor any Stockholder will take any actions which would
result in any of the representations or warranties of Vista or the Stockholders
set forth in this Agreement and Plan of Merger being untrue.
6.07 Continuing Obligation to Inform.
-------------------------------
From time to time prior to the Effective Date, Vista and the
Stockholders will deliver or cause to be delivered to Peritus supplemental
information concerning events subsequent to the date hereof which would render
any statement, representation or
-34-
warranty in this Agreement and Plan of Merger or any information contained in
any Schedule attached hereto inaccurate or incomplete in any material respect at
any time after the date hereof until the Effective Date; provided that except as
--------
specified in Subsection 8.08 hereof, none of such supplemental information shall
constitute an amendment of any statement, representation or warranty in this
Agreement and Plan of Merger or any Schedule, Exhibit or document furnished
pursuant hereto.
6.08 Exclusive Dealing.
-----------------
Neither Vista nor any Stockholder will, directly or indirectly,
through any officer, director, agent or otherwise, (a) solicit, initiate or
encourage submission of proposals or offers from any person relating to an
acquisition or purchase of all or a material portion of the assets of or an
equity interest in Vista or any merger, consolidation or business combination
with Vista, or (b) participate in any discussions or negotiations regarding, or
furnish to any other person, any non-public information with respect to or
otherwise cooperate in any way with, or assist or participate in, facilitate or
encourage, any effort or attempt by any other person to do or seek any of the
foregoing. Vista and each Stockholder agree to promptly notify Peritus of any
such proposal or offer, or any inquiry or contact with respect thereto received
by Vista or any of the Stockholders.
6.09 Reports, Taxes.
--------------
Vista will duly and timely file all reports or returns required to be
filed with federal, state, local and foreign authorities and will promptly pay
all federal, state, local and foreign taxes, assessments and governmental
charges levied or as sessed upon them or any of their properties (unless
contesting such in good faith and adequate provision has been made therefor).
6.10 Termination of Option Plans. Prior to the Effective Date, Vista
---------------------------
will (i) terminate any and all stock option, stock purchase or other plans or
arrangements providing for the grant to any person or entity of any option or
other right to purchase or otherwise acquire any securities of Vista, and (ii)
provide to Peritus evidence reasonably satisfactory to Peritus of such
termination.
7. Best Efforts to Obtain Satisfaction of Conditions
-------------------------------------------------
Vista, each of the Stockholders and Peritus covenant and agree to use
their respective best efforts to obtain the satisfaction of the conditions to
their respective obligations specified in this Agreement and Plan of Merger.
-35-
8. Conditions to Obligations of Peritus
------------------------------------
The obligations of Peritus under this Agreement and Plan of Merger are
subject to the fulfillment, as of the Effective Date, of the following
conditions precedent, each of which may be waived in writing in the sole
discretion of Peritus:
8.01 Continued Truth of Representations and Warranties of Vista and
--------------------------------------------------------------
the Stockholders; Compliance with Covenants and Obligations.
-----------------------------------------------------------
The representations and warranties of Vista and the Stockholders set
forth herein shall be true on and as of the Effective Date as though such
representations and warranties were made on and as of such date (even though
they may purport to have been given on a date prior to the Effective Date),
except for any changes permitted by the terms hereof or consented to in writing
by Peritus. Vista and the Stockholders shall have performed and complied with
all terms, conditions, covenants, obligations, agreements and restrictions
required by this Agreement and Plan of Merger to be performed or complied with
by them prior to or at the Effective Date.
8.02 Performance by Vista.
--------------------
Vista and the Stockholders' Representative shall have delivered to
Peritus a certificate, signed by the President and Chief Financial Officer of
Vista and (with respect to the Stockholders) the Stockholders' Representative
and dated the Effective Date, as to Vista's and the Stockholders' compliance
with Subsection 8.01 hereof.
8.03 Governmental Approvals.
----------------------
All governmental agencies, departments, bureaux, commissions and
similar bodies, the consent, authorization or approval of which is necessary
under any applicable law, rule, order or regulation for the consummation by
Vista and the Stockholders of the Merger or the other transactions contemplated
by this Agreement and Plan of Merger and the operation of the business of Vista
by Peritus shall have consented to, authorized, permitted or approved the Merger
and such transactions.
8.04 Stockholder Approval.
--------------------
The Merger shall have been duly approved by the unanimous vote of the
stockholders of Vista at a properly convened meeting thereof and in compliance
with all applicable requirements of the Illinois Business Corporation Law.
-36-
8.05 Consent of Lenders, Lessors and Other Third Parties.
---------------------------------------------------
Vista and the Stockholders shall have received all requisite consents
and approvals of all lenders, lessors and other third parties whose consent or
approval is required in order for Vista and the Stockholders to consummate the
Merger and the other transactions contemplated by this Agreement and Plan of
Merger, including, without limitation, those set forth on Schedule 3.04 attached
-------------
hereto.
8.06 Adverse Proceedings.
-------------------
No action or proceeding by or before any court or other governmental
body shall have been instituted or threatened by any governmental body or person
whatsoever which shall seek to restrain, prohibit or invalidate the Merger or
the other transactions contemplated by this Agreement and Plan of Merger or
which might affect the right of Peritus to own or operate the business of Vista
after the Effective Date.
8.07 Opinion of Counsel.
------------------
Peritus shall have received an opinion of ▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇,
counsel to Vista, dated as of the Effective Date, with respect to matters
specified on Schedule 8.07 hereto and such other matters as may be reasonably
-------------
requested by Peritus or its counsel, with only such exceptions and
qualifications, and otherwise in such form, as are customary for transactions of
this nature.
8.08 Update.
------
Vista and the Stockholders shall have provided Peritus with a true,
correct and complete list and amount, as of the last business day immediately
preceding the Effective Date, of:
(a) the Personal Property;
(b) the Leases;
(c) the Accounts Receivable, including an aging thereof;
(d) the Contracts;
(e) trade accounts payable and accrued liabilities;
(f) unfilled customer orders;
-37-
(g) all shipments of products made and services provided during
the period from the date of this Agreement and Plan of Merger to the Effective
Date; and
(h) long-term and short-term debt.
None of the information with respect to the items referred to in clauses (a)
through (h) above shall be materially adverse from the information supplied by
Vista as of the date hereof on Schedules 3.09, 3.11, 3.13, 3.16, 3.21 and 3.22
-------------- ---- ---- ---- ---- ----
attached hereto, and, with respect to clause (h) above, none of which
information shall be materially adverse from the information set forth in the
Current Balance Sheet. For purposes of this Subsection 8.08, the term
"materially adverse" shall mean any change, other than those specifically
contemplated by or permitted pursuant to the terms of this Agreement and Plan of
Merger, having an economic value in excess of $2,000.
8.09 Employment Contracts.
--------------------
On or prior to the Effective Date, Peritus shall have executed
employment contracts and other arrangements with the individuals listed on
Schedule 8.09 attached hereto, upon substantially the terms set forth in
-------------
Schedule 8.09 and otherwise upon such terms and conditions as Peritus and each
-------------
such individual may agree.
8.10 Cash Available for Working Capital Purposes.
-------------------------------------------
On the Effective Date, Vista will have in the aggregate available cash
for working capital purposes of not less than $200,000.
8.11 Repayment of Indebtedness.
-------------------------
On the Effective Date, Vista shall have no long-term or short-term
indebtedness.
8.12 Trade Payables.
--------------
On the Effective Date, Vista will not have obligations, in excess of
$35,000 in the aggregate, to unrelated, third party suppliers and vendors of
goods and services and other unrelated, third party trade creditors which have
been outstanding for more than 30 days.
-38-
8.13 Deliveries.
----------
Peritus shall have received on or prior to the Effective Date such
documents, instruments or certificates as Peritus may reasonably request
including, without limitation:
(a) a copy, certified by the Secretary of Vista, of the
resolutions of the Board of Directors of Vista approving and adopting this
Agreement and Plan of Merger;
(b) a copy, certified by the Secretary of Vista, of the
resolutions of the stockholders of Vista unanimously approving the Merger;
(c) such certificates of Vista's officers and of the
Stockholders' Representative and such other documents evidencing satisfaction of
the conditions specified in this Section 8 as Peritus shall reasonably request;
(d) a certificate of the Secretary of State of the State of
Illinois as to the legal existence and good standing (including tax) of Vista in
the State of Illinois;
(e) certificates of the Secretary of Vista attesting to the
incumbency of Vista's officers, the authenticity of the resolutions authorizing
the transactions contemplated by this Agreement and Plan of Merger, and the
authenticity and continuing validity of the charter documents and bylaws
delivered pursuant to Subsection 3.01;
(f) where required by the applicable Lease, estoppel certificates
or similar documentation reasonably satisfactory to Peritus from each lessor
from whom Vista leases real or personal property consenting to the Merger and
the other transactions contemplated hereby, and representing that there are no
outstanding claims against Vista under such Lease;
(g) certificates of appropriate governmental officials in each
state in which Vista is required to qualify to do business as a foreign
corporation as to the due qualification and good standing (including tax) of
Vista in each such jurisdiction;
(h) the original corporate minute books of Vista and all
corporate seals; and
(i) the Escrow Agreement, fully executed by each Stockholder.
-39-
8.14 Approval of Merger Documents. Peritus and its counsel shall have
----------------------------
been provided the opportunity to review and comment on drafts of any and all
Merger Documents filed or recorded (or to be filed or recorded) by Vista with
the Secretary of State of the State of Illinois, and shall have approved the
final version of each such Merger Document prior to such filing or recordation
(which approval shall not be unreasonably withheld).
9. Conditions to Obligations of Vista
----------------------------------
The obligations of Vista under this Agreement and Plan of Merger are
subject to the fulfillment, as of the Effective Date, of the following
conditions precedent, each of which may be waived in writing in the sole
discretion of Vista:
9.01 Continued Truth of Representations and Warranties of Peritus;
-------------------------------------------------------------
Compliance with Covenants and Obligations.
-----------------------------------------
The representations and warranties of Peritus in this Agreement and
Plan of Merger shall be true on and as of the Effective Date as though such
representations and warranties were made on and as of such date, except for any
changes consented to in writing by Vista. Peritus shall have performed and
complied with all terms, conditions, covenants, obligations, agreements and
restrictions required by this Agreement and Plan of Merger to be performed or
complied with by it prior to or as of the Effective Date.
9.02 Corporate Proceedings.
---------------------
All corporate and other proceedings required to be taken on the part
of Peritus to consummate the Merger shall have been taken.
9.03 Governmental Approvals.
----------------------
All governmental agencies, departments, bureaux, commissions and
similar bodies, the consent, authorization or approval of which is necessary
under any applicable law, rule, order or regulation for the consummation by
Peritus of the Merger and the other transactions contemplated by this Agreement
and Plan of Merger shall have consented to, authorized, permitted or approved
such transactions.
9.04 Consents of Lenders, Lessors and Other Third Parties.
----------------------------------------------------
Peritus shall have received all requisite consents and approvals of
all lenders, lessors and other third parties whose
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consent or approval is required in order for Peritus to consummate the Merger
and the other transactions contemplated by this Agreement and Plan of Merger.
9.05 Adverse Proceedings.
-------------------
No action or proceeding by or before any court or other governmental
body shall have been instituted or threatened by any governmental body or person
whatsoever which shall seek to restrain, prohibit or invalidate the Merger or
the other transactions contemplated by this Agreement and Plan of Merger.
9.06 Opinion of Counsel.
------------------
Vista shall have received an opinion of ▇▇▇▇ and ▇▇▇▇, counsel to
Peritus, dated as of the Effective Date, with respect to matters specified on
Schedule 9.06 hereto and such other matters as may be reasonably requested by
-------------
Vista or its counsel, with only such exceptions and qualifications, and
otherwise in such form, as are customary for transactions of this size and
nature.
9.07 Deliveries.
----------
Vista shall have received on or prior to the Effective Date such
documents, instruments or certificates as Vista may reasonably request
including, without limitation:
(a) such certificates of Peritus' officers and such other
documents evidencing satisfaction of the conditions specified in this Section 9
as Vista shall reasonably request;
(b) a certificate of the Secretary of the Commonwealth of the
Commonwealth of Massachusetts as to the legal existence and good standing
(including tax) of Peritus in the Commonwealth of Massachusetts;
(c) a certificate of the Secretary of Peritus attesting to the
incumbency of Peritus's officers and the authenticity of the resolutions
authorizing the transactions contemplated by this Agreement and Plan of Merger;
and
(d) the Escrow Agreement fully executed by Peritus.
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10. Survival of Representations and Warranties
------------------------------------------
10.01 Survival of Representations and Warranties of Vista.
---------------------------------------------------
All representations and warranties made by Vista or any Stockholder in
this Agreement and Plan of Merger, or in any instrument or document executed and
delivered, or otherwise furnished, in connection with this Agreement and Plan of
Merger or the transactions contemplated hereby, shall survive the Merger and any
investigation made by or on behalf of any party until the termination of the
Escrow Agreement; provided, however, that, notwithstanding the foregoing, the
representations and warranties of the Stockholders set forth in Section 2 hereof
and the representations and warranties of Vista set forth in Subsections 3.12,
3.14, 3.17 (with respect to environmental matters), 3.19 and 13.01 shall survive
until the expiration of the applicable period of limitations or any extension
hereof.
10.02 Survival of Representations and Warranties of Peritus.
-----------------------------------------------------
No representation or warranty made by Peritus in this Agreement and
Plan of Merger, or in any instrument or document furnished in connection with
this Agreement and Plan of Merger or the transactions contemplated hereby, shall
survive consummation of the Merger, and all such representations and warranties
shall expire upon such consummation.
11. Termination of Agreement; Option to Proceed; Damages
----------------------------------------------------
11.01 Termination by Lapse of Time.
----------------------------
Subject to Subsection 11.04 hereof, this Agreement and Plan of Merger
shall terminate at 5:00 p.m., Boston Time, on February 29, 1996 (the "Expiration
Date"), if the transactions contemplated hereby (other than any transactions
expressly intended hereby or by the Escrow Agreement to occur after the
Effective Date) have not been consummated, unless such date is extended by the
written consent of Vista and Peritus.
11.02 Termination by Agreement of the Parties.
---------------------------------------
This Agreement and Plan of Merger may be terminated and the Merger may
be abandoned at any time prior to the Effective Date by the mutual written
agreement of the Boards of Directors of Peritus and Vista notwithstanding
approval of this Agreement by the stockholders of Peritus or Vista. In the
event of such termination and abandonment by agreement, Peritus shall have no
further obligation or liability to Vista or any Stockholder under
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this Agreement and Plan of Merger, and neither Vista nor any Stockholder shall
have any further obligation or liability to Peritus under this Agreement and
Plan of Merger.
11.03 Termination by Reason of Breach.
-------------------------------
This Agreement and Plan of Merger may be terminated by Vista, if at
any time prior to the Effective Date there shall occur a breach of any of the
representations, warranties or covenants of Peritus or the failure by Peritus to
perform any condition or obligation hereunder, and may be terminated by Peritus,
if at any time prior to the Effective Date there shall occur a breach of any of
the representations, warranties or covenants of Vista or any Stockholder or the
failure by Vista or any Stockholder to perform any condition or obligation
hereunder (such a breach by Vista shall be referred to herein as a "Pre-
Effective Breach").
11.04 Option to Proceed.
-----------------
(a) Notwithstanding a Pre-Effective Breach by Vista or any
Stockholder, or the inability of Vista or any Stockholder to satisfy all of the
terms and conditions precedent to the Merger as set forth in this Agreement and
Plan of Merger, all as herein stipulated, Peritus may elect by written notice
given to Vista on or prior to the Expiration Date either to (i) terminate this
Agreement and Plan of Merger, or (ii) postpone the Expiration Date by 30 days,
during which period Vista and each Stockholder shall use its respective best
efforts to satisfy all such conditions to the Merger as provided herein. If
Vista and the Stockholders are unable, upon expiration of such 30-day period, to
satisfy all such conditions to the Merger, Peritus may elect, by written notice
given to Vista to (x) terminate this Agreement and Plan of Merger, (y) proceed
to consummate the Merger, or (z) postpone the Expiration Date for an additional
30 days.
(b) If Peritus elects to postpone the Expiration Date for an
additional 30 days pursuant to clause (z) of paragraph (a) above, then (i)
Peritus and Vista shall, within the 30-day period specified in clause (z) of
paragraph (a) above, agree upon the amount of the diminution in the value of
Vista as a result of the Pre-Effective Breach or the cost to Peritus of curing
such defect (the "Pre-Effective Adjustment Amount"), and (ii) the Conversion
Ratio shall be adjusted so as to reduce the number of shares of Peritus Class A
Common Stock to be issued to the Stockholders in connection with the Merger by
the number of such shares calculated by dividing (A) the Pre-Effective
Adjustment Amount by (B) the Fair Market Value of such shares. Peritus and Vista
shall use their respective best efforts to agree
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upon the Pre-Effective Adjustment Amount and the related adjustment of the
Conversion Ratio within such 30-day period; provided, however, that if Peritus
and Vista cannot agree upon the Pre-Effective Adjustment Amount and the related
adjustment of the Conversion Ratio within such 30-day period, Peritus may
terminate this Agreement and Plan of Merger in accordance with clause (i) of
paragraph (a) above. For the purposes of this Agreement and Plan of Merger, the
"Fair Market Value" of shares of Peritus Class A Common Stock shall be deemed
equal to $6.50 per share.
11.05 Availability of Remedies at Law.
-------------------------------
In the event this Agreement and Plan of Merger is terminated by
Peritus or Vista pursuant to the provisions of this Section 11, the parties
hereto shall have available to them all remedies afforded to them by applicable
law.
12. Dispute Resolution
------------------
12.01 General.
-------
In the event that any dispute should arise between the parties hereto
with respect to any matter covered by this Agreement and Plan of Merger,
including, without limitation, the occurrence of a Pre-Effective Breach, the
calculation of the Pre-Effective Adjustment Amount, or the related adjustment of
the Conversion Ratio, the parties hereto shall resolve such dispute in
accordance with the procedures set forth in this Section 12.
12.02 Consent of the Parties.
----------------------
In the event of any dispute between the parties with respect to any
matter covered by this Agreement and Plan of Merger or the Escrow Agreement, the
parties shall first use their best efforts to resolve such dispute among
themselves. If the parties are unable to resolve the dispute within 15 calendar
days after the commencement of efforts to resolve the dispute, or within the 30-
day period referred to in Subsection 11.04(b) hereof in connection with any
dispute relating to the Pre-Effective Adjustment Amount or the related
adjustment of the Conversion Ratio, the dispute will be submitted to arbitration
in accordance with Subsection 12.03 hereof.
12.03 Arbitration.
-----------
(a) Either Peritus or Vista or, after the Effective Date, the
Stockholders' Representative may submit any matter referred to in Subsection
12.02 hereof to arbitration by notifying the other party hereto, in writing, of
such dispute. Within 10 days after receipt of such notice, each of Peritus, on
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the one hand, and Vista or the Stockholders' Representative, on the other hand,
shall designate in writing one arbitrator to resolve the dispute; provided that
if the parties cannot agree on an arbitrator within such 10-day period, the
arbitrator shall be selected by the American Arbitration Association. The
arbitrator so designated shall not be an employee, consultant, officer, director
or stockholder of any party hereto or any affiliate of any party to this
Agreement and Plan of Merger.
(b) Within 15 days after the designation of the arbitrator,
the arbitrator, Peritus and Vista (or the Stockholders' Representative, as
appropriate) shall meet, at which time Peritus and Vista (or the Stockholders'
Representative, as appropriate) shall be required to set forth in writing all
disputed issues and a proposed ruling on each such issue.
(c) The arbitrator shall set a date for a hearing, which shall
be no later than 30 days after the submission of written proposals pursuant to
paragraph (b) above, to discuss each of the issues identified by Peritus and
Vista (or the Stockholders' Representative, as appropriate). Each such party
shall have the right to be represented by counsel. The arbitration shall be
governed by the rules of the American Arbitration Association; provided that the
arbitrator shall have sole discretion with regard to the admissibility of
evidence.
(d) The arbitrator shall use his best efforts to rule on each
disputed issue within 30 days after the completion of the hearings described in
paragraph (c) above. The determination of the arbitrator as to the resolution of
any dispute shall be binding and conclusive upon all parties hereto. All rulings
of the arbitrator shall be in writing and shall be delivered to the parties
hereto.
(e) The prevailing party in any arbitration shall be entitled
to an award of reasonable attorneys' fees incurred in connection with the
arbitration. The non-prevailing party shall pay such fees, together with the
fees of the arbitrator and the costs and expenses of the arbitration.
(f) Any arbitration pursuant to this Subsection 12.03 shall be
conducted in Boston, Massachusetts. Any arbitration award may be entered in and
enforced by any court having jurisdiction thereover, and all of the parties
hereto hereby consent and commit themselves to the jurisdiction of the courts of
the Commonwealth of Massachusetts and the United States District Court for the
District of Massachusetts for purposes of the enforcement of any arbitration
award.
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13. Brokers
-------
13.01 For Vista.
---------
Vista represents and warrants that no person, firm or corporation has
acted in the capacity of broker or finder on its behalf to bring about the
negotiation of this Agreement and Plan of Merger.
13.02 For Peritus.
-----------
Peritus represents and warrants that no person, firm or corporation
has acted in the capacity of broker or finder on its behalf to bring about the
negotiation of this Agreement and Plan of Merger.
14. Notices
-------
Any notices or other communications required or permitted hereunder
shall be sufficiently given if delivered personally or sent by telefax,
nationally recognized overnight courier, or registered or certified mail,
postage prepaid, addressed as follows or to such other address of which the
parties may have given notice:
To Peritus: Peritus Software Services, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇ and ▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
To Vista: Vista Technologies Incorporated
Two Woodfield Lake
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
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To the Stockholders: c/o ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Unless otherwise specified herein, such notices or other communications shall be
deemed received on the date delivered to the recipient.
15. Successors and Assigns
----------------------
This Agreement and Plan of Merger shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns,
except that no party hereto may assign its respective rights or obligations
hereunder without the prior written consent of the other parties. Any
assignment in contravention of this provision shall be void.
16. Entire Agreement; Attachments
-----------------------------
(a) This Agreement and Plan of Merger, all Schedules and Exhibits
hereto, and all agreements and instruments to be delivered by the parties
pursuant hereto represent the entire understanding and agreement between the
parties hereto with respect to the subject matter hereof and supersede all prior
oral and written and all contemporaneous oral negotiations, commitments and
understandings between such parties.
(b) If the provisions of any Schedule or Exhibit to this Agreement
and Plan of Merger are inconsistent with the provisions of this Agreement and
Plan of Merger, the provisions of this Agreement and Plan of Merger shall
prevail. The Exhibits and Schedules attached hereto or to be attached hereafter
are hereby incorporated as integral parts of this Agreement and Plan of Merger.
17. Severability
------------
Any provision of this Agreement and Plan of Merger which is invalid,
illegal or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity, illegality or unenforceability,
without affecting in any way the remaining provisions hereof in such
jurisdiction or rendering that or any other provision of this Agreement and Plan
of Merger invalid, illegal or unenforceable in any other jurisdiction.
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18. Investigation of the Parties
----------------------------
All representations and warranties contained herein which are made to
the best knowledge of a person or entity shall require that such person or
entity make reasonable investigation and inquiry with respect thereto to
ascertain the correctness and validity thereof.
19. Expenses
--------
Except as otherwise expressly provided herein, each party hereto shall
pay, and be solely responsible for, all fees and expenses (including, without
limitation, legal and accounting fees and expenses) incurred by such party in
connection with the Merger and the other transactions contemplated hereby.
20. Legal Fees
----------
In the event that legal proceedings are commenced by Peritus against
Vista or the Stockholders, or by Vista or the Stockholders (acting through the
Stockholders' Representative or otherwise) against Peritus, in connection with
this Agreement and Plan of Merger or the transactions contemplated hereby, the
party which does not prevail in such proceedings shall pay the reasonable
attorneys' fees and other costs and expenses, including investigation costs,
incurred by the prevailing party in such proceedings.
21. Further Assurances
------------------
From time to time, as and when required by Peritus or by its
successors and assigns, there shall be executed and delivered on behalf of Vista
and/or any Stockholder such deeds and other instruments, and there shall be
taken or caused to be taken by it such further and other action, as shall be
appropriate or necessary in order to vest or perfect in or to confirm of record
or otherwise in Peritus the title to and possession of all the property,
interests, assets, rights, privileges, immunities, powers, franchises and
authority of Vista, and otherwise to carry out the purposes of this Agreement
and Plan of Merger, and the officers and directors of Vista are fully authorized
in the name and on behalf of Vista or otherwise to take any and all such action
and to execute and deliver any and all such deeds and other instruments.
22. Amendment
---------
This Agreement and Plan of Merger may be amended by the Boards of
Directors of Vista and Peritus at any time prior to the Effective Date, provided
that an amendment made subsequent to the
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approval of this Agreement and Plan of Merger by the stockholders of either
Vista or Peritus shall not (i) alter or change the amount or kind of shares,
securities, cash, property and/or rights to be received in exchange for or on
conversion of all or any of the shares of any class or series thereof of such
corporation, (ii) alter or change any term of the Articles of Organization of
Peritus to be effected by the Merger or (iii) alter or change any of the terms
and conditions of this Agreement and Plan of Merger if such alteration or change
would adversely affect the holders of any class or series thereof of such
corporation.
23. Governing Law
-------------
This Agreement and Plan of Merger and the legal relations between the
parties shall be governed by and construed in accordance with the laws of the
Commonwealth of Massachusetts.
24. Section Headings; Number; Gender
--------------------------------
The section and subsection headings are for the convenience of the
parties and in no way alter, modify, amend, limit, or restrict the contractual
obligations of the parties. The number of all words shall include both singular
and plural, and the gender shall include feminine, masculine and neuter, unless
the context clearly indicates otherwise.
25. Counterparts
------------
This Agreement and Plan of Merger may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
shall be one and the same document.
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IN WITNESS WHEREOF, each of the parties has caused this Agreement and Plan
of Merger to be executed on its behalf by its officers thereunto duly authorized
and its corporate seal to be thereto affixed, all as of the date first above
written.
PERITUS SOFTWARE SERVICES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------
Title: President
--------------------------
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------
Title: VP Finance
--------------------------
VISTA TECHNOLOGIES INCORPORATED
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------
Title: PRESIDENT & CEO
--------------------------
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
Title: TREASURER
--------------------------
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STOCKHOLDERS:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Address: ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
Address: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
▇▇▇▇▇ ▇▇▇▇▇
Address: ▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇
Address: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇
Address: ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇. #▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Address: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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