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Petroleum Place Inc · S-1 · On 5/19/00 · EX-2.5

Filed On 5/19/00 4:57pm ET · SEC File 333-37486 · Accession Number 1035704-0-348

  As Of               Filer                 Filing     As/For/On Docs:Pgs              Issuer               Agent

 5/19/00  Petroleum Place Inc               S-1                   27:780                                    Bowne of Denver/FA

Registration Statement (General Form) · Form S-1
Filing Table of Contents

Document/Exhibit                   Description                      Pages   Size 

 1: S-1         Registration Statement (General Form)                126    520K 
 2: EX-2.1      Stock Purchase Agreement                              64    197K 
 3: EX-2.2      Stock Purchase Agreement                              31    122K 
 4: EX-2.3      Asset Purchase Agreement                              43    142K 
 5: EX-2.4      Asset Purchase Agreement                              64    212K 
 6: EX-2.5      Agreement and Plan of Merger                          61    261K 
 7: EX-3.4      Bylaws                                                29    125K 
 8: EX-3.5      Amended and Restated Bylaws                           25    116K 
 9: EX-10.1     Amended and Restated 1999 Equity Incentive Plan       16     80K 
10: EX-10.2     2000 Employee Stock Purchase Plan                     10     55K 
11: EX-10.3     Third Amended and Restated Investors' Rights Agr.     31    131K 
12: EX-10.4     Form of Indemnity Agreement                            6     35K 
13: EX-10.5     Series A Preferred Stock Purchase Agreement           21     69K 
14: EX-10.6     Series B Preferred Stock Purchase Agreement           19     70K 
15: EX-10.7     Series C Preferred Stock Purchase Agreement           24     88K 
16: EX-10.8     Warrant to Purchase 5,000 Shares of Common Stock       8     42K 
17: EX-10.9     Warrant to Purchase 5,000 Shares of Common Stock      10     47K 
18: EX-10.12    Employment Agreement                                  15     53K 
19: EX-10.13    Employment Agreement                                  10     45K 
20: EX-10.14    Letter Agreement                                       2     19K 
21: EX-10.15    Loan and Security Facility Agreement                  70    283K 
22: EX-10.16    Office Lease Agreement                                28    150K 
23: EX-10.17    Office Lease Agreement                                63    298K 
24: EX-21.1     List of Subsidiaries of Registrant                     1     15K 
25: EX-23.2     Consent of Arthur Andersen Llp                         1     15K 
26: EX-23.3     Consent of Hein + Associates, Llp                      1     15K 
27: EX-27       Financial Data Schedule                                1     16K

EX-2.5 · Agreement and Plan of Merger
Exhibit Table of Contents

Page	(sequential)	\|	(alphabetic)	Top
			Alternative Formats (RTF, XML, et al.) Agreement Article I Definitions Article Iii Representations and Warranties of the Company and Sellers Article Ii Merger Article Iv Representations and Warranties of Purchaser Article Ix Post-Closing Covenants Article Vii Conditions Precedent to Purchaser's Performance Article Viii Conditions Precedent to Sellers' Performance Article Vi Purchaser's Obligations Before Closing Article V Sellers' and the Company's Obligations Before Closing Article Xii Miscellaneous Article X Indemnification Article Xi Termination Company MergerSub Purchaser Section 10.1 Indemnification by Sellers Section 10.2 Indemnification by Purchaser Section 10.3 Procedures for Third-Party Claims Section 10.4 Procedures for Direct Claims Section 10.5 Limitations of Indemnification Obligations Section 10.6 Survival of Representations, Warranties and Covenants Section 11.1 Termination of Agreement Section 11.2 Effect of Termination Section 1.1 Certain Definitions Section 12.10 Counterparts Section 12.11 Severability Section 12.12 Specific Performance Section 12.13 Legal Fees and Expenses Section 12.1 Fees and Expenses Section 12.2 Entire Agreement Section 12.3 Amendments Section 12.4 Taxes Section 12.5 Governing Law; Consent to Jurisdiction; Service of Process Section 12.6 Representation by Counsel Section 12.7 Assignment Section 12.8 Headings Section 12.9 Notices Section 1.2 Terms Generally Section 2.10 Intended Tax Consequences Section 2.11 Taking of Necessary Action; Further Action Section 2.12 Withholding Section 2.1 The Merger Section 2.2 Closing; Effective Time Section 2.3 Effect of the Merger Section 2.4 Certificate of Incorporation; Bylaws Section 2.6 Surrender of Certificates; Purchase of Company Common Stock; Effect of Merger on Company Common Stock Section 2.7 Delivery of Merger Consideration; Closing Deliveries Section 2.8 Stock Transfer Books Section 2.9 Adjustment to Merger Consideration Section 3.11 Intellectual Property Section 3.12 Tax Matters Section 3.13 Real Property Section 3.14 Material Contracts Section 3.15 Relationship with Suppliers & Customers Section 3.16 Notes and Accounts Receivable; Bank Accounts Section 3.17 Insurance Section 3.18 Employees Section 3.19 Employee Benefits Section 3.1 Corporate Organization Section 3.20 Environmental Compliance Section 3.21 Litigation and Claims, Compliance with Laws Section 3.22 Affiliate Transactions Section 3.23 Records Section 3.24 Brokers, Finders, Etc Section 3.25 Competing Business Section 3.26 Representations and Warranties Generally Section 3.27 Other Information Section 3.2 Ownership of Shares Section 3.3 Authorization, Etc Section 3.4 No Conflict Section 3.5 Governmental Consents; HSR Section 3.6 Capital Stock Section 3.7 Company Financial Statements Section 3.8 Absence of Certain Changes or Events Section 3.9 No Undisclosed Liabilities Section 4.10 Relationship with Suppliers & Customers Section 4.12 HSR Section 4.13 Litigation; Compliance with Laws Section 4.14 Other Information Section 4.1 Organization Section 4.2 Authorization, Etc Section 4.3 Brokers' Fees Section 4.4 Capital Stock Section 4.5 No Conflict Section 4.6 Purchaser Financial Statements Section 4.7 Absence of Certain Changes or Events Section 4.8 No Undisclosed Liabilities Section 5.10 Company Obligations; Affiliate Agreements Section 5.11 Termination of ERISA Plans Section 5.12 Employee Confidentiality Agreements Section 5.13 Due Diligence Section 5.1 General Section 5.2 Access Section 5.3 Operation of Business Section 5.4 Preservation of Business; Insurance Section 5.5 Notices and Consents Section 5.6 Exclusivity Section 5.7 Delivery of Schedules; Notice of Developments; Update of Schedules Section 5.8 Confidentiality Section 5.9 Financial Statements Section 6.1 Due Diligence Section 6.2 Access Section 6.3 Confidentiality Section 6.4 Nonsolicitation Section 6.5 General Section 7.10 Employment and Non-Competition Agreements Section 7.11 Investors' Rights Agreement Section 7.12 Stockholder Approval Section 7.1 Representations and Warranties True Section 7.2 Performance Section 7.3 No Material Adverse Change Section 7.4 Consents Section 7.5 No Proceedings, Injunctions, Etc Section 7.6 Sellers' and Officer's Certificates Section 7.7 Redemption of Certain Stockholders of the Company Section 7.8 Employee Confidentiality Agreements Section 7.9 Opinion of Sellers' Counsel Section 8.1 Representations and Warranties True Section 8.2 Performance Section 8.3 No Proceedings, Injunctions, Etc Section 8.5 Purchaser's Certificate Section 8.6 Opinion of Purchaser's Counsel Section 8.7 Redemption of Certain Shareholders of the Company Section 8.8 Restated Certificate of Incorporation Section 9.1 General Section 9.2 Litigation Support Section 9.3 Tax Matters Section 9.4 Public Disclosure; Confidentiality Section 9.5 Cooperation with Initial Public Offering Section 9.6 Sellers' Representative Section 9.7 Company Employees Section 9.8 Redemption Notes Sellers
1	1st Page
5	Agreement
"	Article I Definitions
"	Section 1.1 Certain Definitions
13	Section 1.2 Terms Generally
"	Article Ii Merger
"	Section 2.1 The Merger
"	Section 2.2 Closing; Effective Time
14	Section 2.3 Effect of the Merger
"	Section 2.4 Certificate of Incorporation; Bylaws
"	Section 2.6 Surrender of Certificates; Purchase of Company Common Stock; Effect of Merger on Company Common Stock
15	Section 2.7 Delivery of Merger Consideration; Closing Deliveries
16	Section 2.8 Stock Transfer Books
17	Section 2.9 Adjustment to Merger Consideration
18	Section 2.10 Intended Tax Consequences
19	Section 2.11 Taking of Necessary Action; Further Action
"	Section 2.12 Withholding
"	Article Iii Representations and Warranties of the Company and Sellers
"	Section 3.1 Corporate Organization
20	Section 3.2 Ownership of Shares
"	Section 3.3 Authorization, Etc
"	Section 3.4 No Conflict
21	Section 3.5 Governmental Consents; HSR
"	Section 3.6 Capital Stock
"	Section 3.7 Company Financial Statements
"	Section 3.8 Absence of Certain Changes or Events
24	Section 3.9 No Undisclosed Liabilities
25	Section 3.11 Intellectual Property
26	Section 3.12 Tax Matters
27	Section 3.13 Real Property
29	Section 3.14 Material Contracts
30	Section 3.15 Relationship with Suppliers & Customers
"	Section 3.16 Notes and Accounts Receivable; Bank Accounts
"	Section 3.17 Insurance
31	Section 3.18 Employees
"	Section 3.19 Employee Benefits
34	Section 3.20 Environmental Compliance
"	Section 3.21 Litigation and Claims, Compliance with Laws
35	Section 3.22 Affiliate Transactions
"	Section 3.23 Records
36	Section 3.24 Brokers, Finders, Etc
"	Section 3.25 Competing Business
"	Section 3.26 Representations and Warranties Generally
"	Section 3.27 Other Information
37	Article Iv Representations and Warranties of Purchaser
"	Section 4.1 Organization
"	Section 4.2 Authorization, Etc
38	Section 4.3 Brokers' Fees
"	Section 4.4 Capital Stock
"	Section 4.5 No Conflict
"	Section 4.6 Purchaser Financial Statements
39	Section 4.7 Absence of Certain Changes or Events
"	Section 4.8 No Undisclosed Liabilities
"	Section 4.10 Relationship with Suppliers & Customers
40	Section 4.12 HSR
"	Section 4.13 Litigation; Compliance with Laws
"	Section 4.14 Other Information
41	Article V Sellers' and the Company's Obligations Before Closing
"	Section 5.1 General
"	Section 5.2 Access
"	Section 5.3 Operation of Business
"	Section 5.4 Preservation of Business; Insurance
42	Section 5.5 Notices and Consents
"	Section 5.6 Exclusivity
"	Section 5.7 Delivery of Schedules; Notice of Developments; Update of Schedules
"	Section 5.8 Confidentiality
43	Section 5.9 Financial Statements
"	Section 5.10 Company Obligations; Affiliate Agreements
"	Section 5.11 Termination of ERISA Plans
"	Section 5.12 Employee Confidentiality Agreements
44	Section 5.13 Due Diligence
"	Article Vi Purchaser's Obligations Before Closing
"	Section 6.1 Due Diligence
"	Section 6.2 Access
"	Section 6.3 Confidentiality
"	Section 6.4 Nonsolicitation
45	Section 6.5 General
"	Article Vii Conditions Precedent to Purchaser's Performance
"	Section 7.1 Representations and Warranties True
"	Section 7.2 Performance
"	Section 7.3 No Material Adverse Change
46	Section 7.4 Consents
"	Section 7.5 No Proceedings, Injunctions, Etc
"	Section 7.6 Sellers' and Officer's Certificates
"	Section 7.7 Redemption of Certain Stockholders of the Company
"	Section 7.8 Employee Confidentiality Agreements
"	Section 7.9 Opinion of Sellers' Counsel
"	Section 7.10 Employment and Non-Competition Agreements
47	Section 7.11 Investors' Rights Agreement
"	Section 7.12 Stockholder Approval
"	Article Viii Conditions Precedent to Sellers' Performance
"	Section 8.1 Representations and Warranties True
"	Section 8.2 Performance
"	Section 8.3 No Proceedings, Injunctions, Etc
48	Section 8.5 Purchaser's Certificate
"	Section 8.6 Opinion of Purchaser's Counsel
"	Section 8.7 Redemption of Certain Shareholders of the Company
"	Section 8.8 Restated Certificate of Incorporation
"	Article Ix Post-Closing Covenants
"	Section 9.1 General
"	Section 9.2 Litigation Support
49	Section 9.3 Tax Matters
"	Section 9.4 Public Disclosure; Confidentiality
"	Section 9.5 Cooperation with Initial Public Offering
"	Section 9.6 Sellers' Representative
50	Section 9.7 Company Employees
"	Section 9.8 Redemption Notes
"	Article X Indemnification
"	Section 10.1 Indemnification by Sellers
"	Section 10.2 Indemnification by Purchaser
51	Section 10.3 Procedures for Third-Party Claims
52	Section 10.4 Procedures for Direct Claims
53	Section 10.5 Limitations of Indemnification Obligations
54	Section 10.6 Survival of Representations, Warranties and Covenants
"	Article Xi Termination
"	Section 11.1 Termination of Agreement
55	Section 11.2 Effect of Termination
"	Article Xii Miscellaneous
"	Section 12.1 Fees and Expenses
"	Section 12.2 Entire Agreement
"	Section 12.3 Amendments
56	Section 12.4 Taxes
"	Section 12.5 Governing Law; Consent to Jurisdiction; Service of Process
"	Section 12.6 Representation by Counsel
"	Section 12.7 Assignment
"	Section 12.8 Headings
"	Section 12.9 Notices
57	Section 12.10 Counterparts
58	Section 12.11 Severability
"	Section 12.12 Specific Performance
"	Section 12.13 Legal Fees and Expenses
59	Purchaser
"	MergerSub
"	Company
"	Sellers

EX-2.5 1st Page of 61 TOC Top Previous Next Bottom Just 1st

                                                                     EXHIBIT 2.5

AGREEMENT AND PLAN OF MERGER

DATED AS OF MAY 17, 2000

BY AND AMONG

 PETROLEUM PLACE, INC.
 (THE "PURCHASER")

 PP/PT ACQUISITION CORPORATION
 (THE "MERGERSUB")

 PARADIGM TECHNOLOGIES, INC.
 (THE "COMPANY")

 AND

 CERTAIN STOCKHOLDERS OF
 PARADIGM TECHNOLOGIES, INC.
 (THE "SELLERS")

EX-2.5 2nd Page of 61 TOC 1st Previous Next Bottom Just 2nd

 TABLE OF CONTENTS

                                                        [Enlarge/Download Table]

                                                                                                 Page
                                                                                                     
ARTICLE I           DEFINITIONS...................................................................1  
      Section 1.1   Certain Definitions...........................................................1  
      Section 1.2   Terms Generally...............................................................9  
ARTICLE II          MERGER........................................................................9  
      Section 2.1   The Merger....................................................................9  
      Section 2.2   Closing; Effective Time.......................................................9  
      Section 2.3   Effect of the Merger..........................................................10 
      Section 2.4   Certificate of Incorporation; Bylaws..........................................10 
      Section 2.5   Directors and Officers........................................................10 
      Section 2.6   Surrender of Certificates; Purchase of Company Common Stock; Effect of           
                    Merger on Company Common Stock................................................10 
      Section 2.7   Delivery of Merger Consideration; Closing Deliveries..........................11 
      Section 2.8   Stock Transfer Books..........................................................12 
      Section 2.9   Adjustment to Merger Consideration............................................12 
      Section 2.10  Intended Tax Consequences.....................................................14 
      Section 2.11  Taking of Necessary Action; Further Action....................................15 
      Section 2.12  Withholding...................................................................15 
ARTICLE III         REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND SELLERS.....................15 
      Section 3.1   Corporate Organization........................................................15 
      Section 3.2   Ownership of Shares...........................................................15 
      Section 3.3   Authorization, Etc............................................................16 
      Section 3.4   No Conflict...................................................................16 
      Section 3.5   Governmental Consents; HSR....................................................16 
      Section 3.6   Capital Stock.................................................................17 
      Section 3.7   Company Financial Statements..................................................17 
      Section 3.8   Absence of Certain Changes or Events..........................................17 
      Section 3.9   No Undisclosed Liabilities....................................................20 
      Section 3.10  Property, Assets; Inventory...................................................20 
      Section 3.11  Intellectual Property.........................................................21 
      Section 3.12  Tax Matters...................................................................22 
      Section 3.13  Real Property.................................................................23 
      Section 3.14  Material Contracts............................................................24 
      Section 3.15  Relationship with Suppliers & Customers.......................................26 
      Section 3.16  Notes and Accounts Receivable; Bank Accounts..................................26 
      Section 3.17  Insurance.....................................................................26 
      Section 3.18  Employees.....................................................................27 
      Section 3.19  Employee Benefits.............................................................27 
      Section 3.20  Environmental Compliance......................................................30 
      Section 3.21  Litigation and Claims, Compliance with Laws...................................30 
      Section 3.22  Affiliate Transactions........................................................31 
      Section 3.23  Records.......................................................................31 
      Section 3.24  Brokers, Finders, Etc.........................................................32 
      Section 3.25  Competing Business............................................................32 
      Section 3.26  Representations and Warranties Generally......................................32 
      Section 3.27  Other Information.............................................................32 
      Section 3.28  Investment Representations....................................................32 
ARTICLE IV          REPRESENTATIONS AND WARRANTIES OF PURCHASER...................................33 
      Section 4.1   Organization..................................................................33 
      Section 4.2   Authorization, Etc............................................................33 
      Section 4.3   Brokers' Fees.................................................................34 

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                                                        [Enlarge/Download Table]
                                                                                                     
      Section 4.4   Capital Stock.................................................................34 
      Section 4.5   No Conflict...................................................................34 
      Section 4.6   Purchaser Financial Statements................................................34 
      Section 4.7   Absence of Certain Changes or Events..........................................35 
      Section 4.8   No Undisclosed Liabilities....................................................35 
      Section 4.9   Property, Assets; Inventory...................................................35 
      Section 4.10  Relationship with Suppliers & Customers.......................................35 
      Section 4.11  Notes and Accounts Receivable; Bank Accounts..................................35 
      Section 4.12  HSR...........................................................................35 
      Section 4.13  Litigation; Compliance with Laws..............................................36 
      Section 4.14  Other Information.............................................................36 
ARTICLE V           SELLERS' AND THE COMPANY'S OBLIGATIONS BEFORE CLOSING.........................37 
      Section 5.1   General.......................................................................37 
      Section 5.2   Access........................................................................37 
      Section 5.3   Operation of Business.........................................................37 
      Section 5.4   Preservation of Business; Insurance...........................................37 
      Section 5.5   Notices and Consents..........................................................38 
      Section 5.6   Exclusivity...................................................................38 
      Section 5.7   Delivery of Schedules; Notice of Developments; Update of Schedules............38 
      Section 5.8   Confidentiality...............................................................38 
      Section 5.9   Financial Statements..........................................................39 
      Section 5.10  Company Obligations; Affiliate Agreements.....................................39 
      Section 5.11  Termination of ERISA Plans....................................................39 
      Section 5.12  Employee Confidentiality Agreements...........................................39 
      Section 5.13  Due Diligence.................................................................40 
ARTICLE VI          PURCHASER'S OBLIGATIONS BEFORE CLOSING........................................40 
      Section 6.1   Due Diligence.................................................................40 
      Section 6.2   Access........................................................................40 
      Section 6.3   Confidentiality...............................................................40 
      Section 6.4   Nonsolicitation...............................................................40 
      Section 6.5   General.......................................................................41 
ARTICLE VII         CONDITIONS PRECEDENT TO PURCHASER'S PERFORMANCE...............................41 
      Section 7.1   Representations and Warranties True...........................................41 
      Section 7.2   Performance...................................................................41 
      Section 7.3   No Material Adverse Change....................................................41 
      Section 7.4   Consents......................................................................42 
      Section 7.5   No Proceedings, Injunctions, Etc..............................................42 
      Section 7.6   Sellers' and Officer's Certificates...........................................42 
      Section 7.7   Redemption of Certain Stockholders of the Company.............................42 
      Section 7.8   Employee Confidentiality Agreements...........................................42 
      Section 7.9   Opinion of Sellers' Counsel...................................................42 
      Section 7.10  Employment and Non-Competition Agreements.....................................42 
      Section 7.11  Investors' Rights Agreement...................................................43 
      Section 7.12  Stockholder Approval..........................................................43 
ARTICLE VIII        CONDITIONS PRECEDENT TO SELLERS' PERFORMANCE..................................43 
      Section 8.1   Representations and Warranties True...........................................43 
      Section 8.2   Performance...................................................................43 
      Section 8.3   No Proceedings, Injunctions, Etc..............................................43 
      Section 8.4   No Material Adverse Effect....................................................43 
      Section 8.5   Purchaser's Certificate.......................................................44 
      Section 8.6   Opinion of Purchaser's Counsel................................................44 
      Section 8.7   Redemption of Certain Shareholders of the Company.............................44 
      Section 8.8   Restated Certificate of Incorporation.........................................44 
ARTICLE IX          POST-CLOSING COVENANTS........................................................44 
      Section 9.1   General.......................................................................44 

ii

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                                                        [Enlarge/Download Table]
                                                                                                      
      Section 9.2    Litigation Support............................................................44 
      Section 9.3     Tax Matters..................................................................45 
      Section 9.4    Public Disclosure; Confidentiality............................................45 
      Section 9.5    Cooperation with Initial Public Offering......................................45 
      Section 9.6    Sellers' Representative.......................................................45 
      Section 9.7    Company Employees.............................................................46 
      Section 9.8    Redemption Notes..............................................................46 
      Section 9.8    Employee Confidentiality Agreements...........................................46 
ARTICLE X            INDEMNIFICATION...............................................................46 
      Section 10.1   Indemnification by Sellers....................................................46 
      Section 10.2   Indemnification by Purchaser..................................................46 
      Section 10.3   Procedures for Third-Party Claims.............................................47 
      Section 10.4   Procedures for Direct Claims..................................................48 
      Section 10.5   Limitations of Indemnification Obligations....................................49 
      Section 10.6   Survival of Representations, Warranties and Covenants.........................50 
ARTICLE XI           TERMINATION...................................................................50 
      Section 11.1   Termination of Agreement......................................................50 
      Section 11.2   Effect of Termination.........................................................51 
ARTICLE XII          MISCELLANEOUS.................................................................51 
      Section 12.1   Fees and Expenses.............................................................51 
      Section 12.2   Entire Agreement..............................................................52 
      Section 12.3   Amendments....................................................................52 
      Section 12.4   Taxes.........................................................................52 
      Section 12.5   Governing Law; Consent to Jurisdiction; Service of Process....................52 
      Section 12.6   Representation by Counsel.....................................................52 
      Section 12.7   Assignment....................................................................52 
      Section 12.8   Headings......................................................................53 
      Section 12.9   Notices.......................................................................53 
      Section 12.10  Counterparts..................................................................54 
      Section 12.11  Severability..................................................................54 
      Section 12.12  Specific Performance..........................................................54 
      Section 12.13  Legal Fees and Expenses.......................................................54 

iii 

EX-2.5 5th Page of 61 TOC 1st Previous Next Bottom Just 5th

AGREEMENT AND PLAN OF MERGER

       This Agreement and Plan of Merger (this "Agreement"), dated as of May
17, 2000, is entered into by and among Petroleum Place, Inc., a Delaware        
corporation (the "Purchaser"), PP/PT Acquisition Corporation, a Delaware        
corporation and wholly-owned subsidiary of Purchaser (the "MergerSub"), Paradigm
Technologies, Inc., a Delaware corporation (the "Company"), and each of J. Brian
Searles ("Searles"), J. Brian & Dian J. Searles ("Joint Searles"), Wilmer W.    
Thieme ("Thieme"), Joseph C. Craven ("Craven"), L. Allen Rankin, Jr. ("Rankin"),
Darrell G. Jones ("Jones"), Scott Kramer ("Kramer") and John V. Zagnoli         
("Zagnoli") (Searles, Joint Searles, Thieme, Craven, Rankin, Jones, Kramer and  
Zagnoli are hereinafter individually referred to as a "Seller" and collectively 
referred to as the "Sellers" and Searles and Thieme are collectively referred to
as the "Principal Sellers").                                                    

RECITALS

     A. The Boards of Directors of Purchaser, MergerSub, and the Company
believe it is in the best interests of their respective companies and the       
stockholders of their respective companies that MergerSub and the Company       
combine into a single company through the merger of MergerSub and the Company   
(the "Merger") and, in furtherance thereof, have approved the Merger.           

B. Pursuant to the Merger, among other things, all issued and 
outstanding shares of common stock of the Company, $.01 par value per share (the
"Company Common Stock"), shall be exchanged for cash and shares of the $.001 par
value Series D Preferred Stock of Purchaser (the "Purchaser Series D Stock") in 
the amounts and on the terms set forth herein.                                  

         C. The Company, Purchaser, MergerSub and Sellers desire to make certain
representations and warranties and other agreements in connection with the      
Merger.                                                                         

        D. The parties intend, by executing this Agreement, to adopt a plan of
reorganization within the meaning of Section 368 of the Internal Revenue Code of
1986, as amended (the "Code"), and to cause the Merger to qualify as a          
reorganization under the provisions of Sections 368(a)(1)(A) and 368(a)(2)(D) of
the Code.                                                                       

 AGREEMENT

      NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth herein, the     
parties hereto agree as follows:                                                

 ARTICLE I
 DEFINITIONS

 Section 1.1 Certain Definitions. As used in this Agreement, the
following capitalized terms shall have the meanings set forth or as referenced  
below:                                                                          

    "Actions" shall mean any litigation and proceedings of any nature,
whether at law or in equity, before any court, arbitrator, arbitration panel or 
Governmental Authority.                                                         

EX-2.5 6th Page of 61 TOC 1st Previous Next Bottom Just 6th

 "Adjustment Notice" shall have the meaning set forth in Section
2.9(b)(ii) of this Agreement.                                                   

 "Affiliate" of a designated Person shall mean any Person which,
directly or indirectly, controls, is controlled by or is under common control   
with such designated Person.                                                    

      "Auditor" shall have the meaning set forth in Section 2.9(b)(iii) of
this Agreement.                                                                 

"Auditor's Report" shall have the meaning set forth in Section
2.9(b)(iii) of this Agreement.                                                  

         "Balance Sheet" shall have the meaning set forth in Section 3.7 of this
Agreement.                                                                      

"Balance Sheet Date" shall mean December 31, 1999.            

         "Certificate of Merger" shall have the meaning set forth in Section 2.1
of this Agreement.                                                              

   "Closing" shall have the meaning set forth in Section 2.2 of this
Agreement.                                                                      

     "Closing Balance Sheet" shall have the meaning set forth in Section
2.9(b)(i) of this Agreement.                                                    

    "Closing Cash Payment" shall have the meaning set forth in Section
2.6(b) of this Agreement.                                                       

        "Closing Date" shall have the meaning set forth in Section 2.2 of this
Agreement.                                                                      

     "Closing Stock Payment" shall have the meaning set forth in Section
2.6(b) of this Agreement.                                                       

  "Code" shall mean the Internal Revenue Code of 1986, as amended.

        "Company" shall have the meaning set forth in the initial paragraph of
this Agreement.                                                                 

         "Company Common Stock" shall have the meaning set forth in Recital B of
this Agreement.                                                                 

       "Company Custom Software" means the software developed and customized
by employees, consultants, and independent contractors of the Company for       
Company's internal use and/or provided to Company customers, including any      
documentation relating to such software, but does not include the Company       
Software.                                                                       

    "Company Financial Statements" shall have the meaning set forth in
Section 3.7 of this Agreement.                                                  

"Company Litigation" shall mean any litigation, legal action, 
arbitration, proceeding, material demand, material claim or investigation       
pending, or to the Knowledge of Sellers threatened, planned or reasonably       
probable, against, affecting or brought by or against the any of                

2 

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Sellers, the Company, the Company's present or former employees or independent  
contractors affiliated at any time with Sellers or the Company.                 

"Company Software" means the software developed by employees, 
consultants, and independent contractors of the Company which is owned by the   
Company, is provided to Company customers and/or is for Company's internal use, 
which has not been customized by the Company for a specific Company Customer,   
including any documentation relating to such software, but does not include the 
Company Custom Software.                                                        

         "Contracts" shall mean all contracts, agreements, indentures, licenses,
leases, commitments, arrangements, sales orders and purchase orders of every    
kind, whether written or oral.                                                  

        "Damages" shall mean, collectively, losses, Liabilities, Liens, costs,
damages, claims and expenses (including reasonable fees and disbursements of    
counsel, consultants or experts and expenses of investigation) and, without     
limiting the generality of the foregoing, with regard to environmental matters  
shall also include specifically response costs, corrective action costs, natural
resource damages, costs to comply with orders or injunctions, damages or awards 
for property damage or personal injury, fines, penalties and costs for testing, 
remediation or cleanup costs, including those related to administrative review  
of site remediation.                                                            

"DGCL" shall mean the Delaware General Corporation Law.       

         "Direct Claim" shall have the meaning set forth in Section 10.4 of this
Agreement.                                                                      

"Dollars" and "$" shall mean United States dollars.           

     "Effective Time" shall have the meaning set forth in Section 2.2 of
this Agreement.                                                                 

         "Employment Agreement" shall have the meaning set forth in Section 7.10
of this Agreement.                                                              

"Environmental Claim" shall mean any suit, action, litigation,
proceeding, investigation, prosecution, order, citation, claim, complaint,      
order, directive citation, notice of responsibility, notice of potential        
responsibility, information request or notice (written or oral) by any Person   
alleging potential liability for Damages arising out of, based on or resulting  
from or relating to (a) the use, handling, storage, treatment, disposal,        
recycling, generation, presence, Release or threatened Release into the         
environment of any Hazardous Substances at any location, whether or not owned or
operated by the Company, including, but not limited to, the disposal, Release,  
or threatened Release of any Hazardous Substances generated or transported by or
for the Company at any off-site location or (b) circumstances forming the basis 
of any violation or alleged violation of any Environmental Law or Damages       
thereunder.                                                                     

         "Environmental Laws" shall mean all federal, state, local and municipal
Laws in existence, enacted or in effect at or prior to Closing relating to      
pollution or protection of public                                               

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health and safety, the workplace and the environment, including, without        
limitation, Laws relating to emissions, discharges, releases or threatened      
releases of Hazardous Substances or otherwise relating to the generation,       
manufacture, processing, distribution, use, treatment, storage, disposal,       
transport, labeling, advertising, sale, display or handling of Hazardous        
Substances. "Environmental Laws" shall include, but not be limited to the       
following statutes and all rules and regulations relating thereto, all as       
amended and modified from time to time:                                         

                  (a) The Comprehensive Environmental Response, Compensation and
      Liability Act ("CERCLA"), as amended by the Superfund Amendments and
        Reauthorization Act of 1986 ("SARA") 42 U.S.C. Sections 9601-9675; the
   Resource Conservation and Recovery Act of 1976 ("RCRA") 42 U.S.C.
         Sections 6901-6991; the Clean Water Act 33 U.S.C. Section 1321 et seq.;
the Clean Air Act 42 U.S.C. Section 7401 et seq.; the Federal 
       Insecticide, Fungicide and Rodenticide Act ("FIFRA") 7 U.S.C. Section
  136 et seq.; the Toxic Substances Control Act ("TSCA") 15 U.S.C.
       Sections 2601-2671; and the Food, Drug and Cosmetic Act ("FDCA"), and

          (b) all similar state and local laws, statutes, codes,
ordinances, regulations and rules.                            

       "Environmental Liabilities" shall mean Damages relating to or arising
in any way from Environmental Laws, Environmental Claims or both.               

         "ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended, and the rules and regulations promulgated thereunder.               

       "ERISA Affiliate" shall have the meaning set forth in Section 3.19(a)
of this Agreement.                                                              

       "Escrow Agreement" shall have the meaning set forth in Section 2.9(a)
of this Agreement.                                                              

         "Final Net Working Capital" shall have the meaning set forth in Section
2.9(b) of this Agreement.                                                       

      "First Amendment to the Third Amended and Restated Investors' Rights
Agreement shall have the meaning set forth in Section 7.11 of this Agreement."  

"FY 1997" shall mean the fiscal year ended December 31, 1997. 

"FY 1998" shall mean the fiscal year ended December 31, 1998. 

     "FY 1999" shall mean the fiscal year ended December 31, 1999 in the
case of the Company and September 30, 1999 in the case of Purchaser.            

   "GAAP" shall mean generally accepted accounting principles, as in
effect in the United States, from time to time.                                 

      "Governmental Authority" shall mean any agency, public or regulatory
authority, instrumentality, department, commission, court, ministry, tribunal or
board of any government,                                                        

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whether foreign or domestic and whether national, federal, provincial, state,   
regional, local or municipal.                                                   

         "Hazardous Substances" shall mean those materials that are regulated by
or form the basis of liability under Environmental Laws and includes, without   
limitation, (a) all substances identified under any Environmental Law as a      
pollutant, contaminant, hazardous substance, liquid, industrial or solid or     
hazardous waste, hazardous material or toxic substance, dangerous substance or  
dangerous good, (b) petroleum or petroleum derived substance or waste, (c)      
asbestos or asbestos-containing material, (d) PCBs or PCB-containing materials  
or fluids, (e) any other substance with respect to which a Governmental         
Authority may require environmental investigation or remediation and (f) any    
radioactive material or substance.                                              

       "HSR Act" shall mean the Hart-Scott-Rodino Antitrust Improvements Act
of 1976, as amended, and any regulations promulgated thereunder.                

      "Indebtedness" of any Person shall mean (a) all indebtedness of such
Person for borrowed money or for the deferred purchase price of property or     
services (other than current trade liabilities incurred in the ordinary course  
of business and payable in accordance with customary practices) and including   
earn-out or similar contingent purchase amounts, (b) any other indebtedness of  
such Person which is evidenced by a note, bond, debenture or similar instrument,
(c) all obligations of such Person under lease, (d) all obligations of such     
Person in respect of acceptances issued or created for the account of such      
Person, (e) all liabilities secured by any Lien on any property owned by such   
Person even though such Person has not assumed or otherwise become liable for   
the payment thereof and (f) all guarantees by such Person of obligations of     
others.                                                                         

   "Indemnifying Party" shall mean any Person or Persons required to
provide indemnification under this Agreement.                                   

"Indemnitee" shall mean any Person or Persons entitled to     
indemnification under this Agreement.                                           

     "Intellectual Property" shall mean all intellectual property rights
used in or reasonably necessary for the business of the Company as currently    
conducted or as presently contemplated by the Company to be conducted, including
all inventions, improvements thereto, patents, patent applications and patent   
disclosures, trademarks, trademark registrations and applications, service      
marks, service mark registrations and applications domain names, logos, designs,
proprietary rights, slogans and general intangibles of like nature, together    
with all goodwill related to the foregoing, trade names and corporate names,    
copyrights, copyright registrations and applications, mask works, moral rights, 
computer programs, product plans, technology, process engineering, drawings,    
schematic drawings, secret processes, proprietary knowledge, including without  
limitation, customer and supplier lists, business and marketing plans and       
proposals, trade secrets, know-how, confidential confirmation, proprietary      
processes and formulae all rights and filings with respect to the foregoing, and
all reissues, extensions and removals thereof.                                  

   "Investigation" shall mean any investigation of any nature by any
Governmental Authority.                                                         

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       "Knowledge" with respect to any particular representation or warranty
contained in this Agreement shall be deemed to be followed by the phrase "after 
due inquiry" and (i) when used to apply to the "Knowledge" of the Company or the
"Knowledge" of any of Sellers, shall mean the actual knowledge or conscious     
awareness after due inquiry of Sellers or any employee of the Company with      
managerial or substantial responsibility for the subject matter of such         
representation or warranty and (ii) when used to apply to the "Knowledge" of    
Purchaser, shall mean the actual knowledge or conscious awareness after due     
inquiry of any employee of Purchaser with managerial or substantial             
responsibility for the subject matter of such representation or warranty.       

"Laws" shall mean statutes, common laws, rules, ordinances,   
regulations, codes, licensing requirements, orders, judgments, injunctions,     
decrees, licenses, permits and bylaws of a Governmental Authority.              

        "Liabilities" shall mean debts, liabilities, commitments, obligations,
duties and responsibilities of any kind and description, whether absolute or    
contingent, monetary or non-monetary, direct or indirect, known or unknown or   
matured or unmatured, or of any other nature.                                   

"Lien" shall mean any security interest, deed of trust, lien, 
superlien, mortgage, claim, charge, pledge, restriction, option, encroachment,  
reservation, order, decree, judgment, charge, contract right, equitable interest
or encumbrance of any nature and in the case of securities any put, call or     
similar right of a third party with respect to such securities.                 

       "Material Adverse Effect" or "Material Adverse Change" as it concerns
the Company shall mean, with respect to the same or any similar events, acts,   
conditions or occurrences, whether individually or in the aggregate, a material 
adverse effect on or change in (a) any of the business, condition (financial or 
otherwise), operations, assets or liabilities of the Company taken as a whole,  
(b) the legality or enforceability against the Company or Sellers of this       
Agreement or (c) the ability of the Company or any Seller to perform his, her or
its obligations and to consummate the transactions under this Agreement. For    
purposes of clause (a) of this definition and without limiting the generality of
the foregoing, an effect or change with respect to the same or any similar      
event(s), act(s), condition(s) or occurrence(s) individually or in the aggregate
with respect to which the Company would reasonably be expected to have $50,000  
in the aggregate or more in Damages being asserted against, imposed upon or     
sustained by the Company shall constitute a Material Adverse Effect or Change.  

       "Material Adverse Effect" or "Material Adverse Change" as it concerns
Purchaser shall mean, with respect to the same or any similar events, acts,     
conditions or occurrences, whether individually or in the aggregate, a material 
adverse effect on or change in (a) any of the business, condition (financial or 
otherwise), operations, assets or liabilities of Purchaser or its Subsidiaries  
taken as a whole, (b) the legality or enforceability against Purchaser of this  
Agreement or (c) the ability of Purchaser to perform its obligations and to     
consummate the transactions under this Agreement. For purposes of clause (a) of 
this definition and without limiting the generality of the foregoing, an effect 
or change with respect to the same or any similar event(s), act(s), condition(s)
or occurrence(s) individually or in the aggregate with respect to which         
Purchaser or its Subsidiaries would reasonably be expected to have $250,000 in  
the aggregate or more in                                                        

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Damages being asserted against, imposed upon or sustained by Purchaser or its   
Subsidiaries shall constitute a Material Adverse Effect or Change.              

         "Material Contract" shall have the meaning set forth in Section 3.14(a)
of this Agreement.                                                              

"Merger" shall have the meaning set forth in Recital A of this
Agreement.                                                                      

  "MergerSub" shall have the meaning set forth in the introductory
paragraph of this Agreement.                                                    

    "Merger Consideration" shall have the meaning set forth in Section
2.6(b) of this Agreement.                                                       

   "Net Working Capital" shall mean an amount equal to the Company's
current assets minus current liabilities determined in accordance with GAAP     
applied on a consistent basis.                                                  

    "Notice of Settlement" shall have the meaning set forth in Section
10.3(c) of this Agreement.                                                      

         "Notice to Contest" shall have the meaning set forth in Section 10.3(c)
of this Agreement.                                                              

        "Notice to Defend" shall have the meaning set forth in Section 10.3(a)
of this Agreement.                                                              

    "PBGC" shall have the meaning set forth in Section 3.19(d) of this
Agreement.                                                                      

        "Percentage Interest" of a Seller shall mean a fraction, the numerator
of which is the number of shares of Company Common Stock owned by such Seller as
of the date of this Agreement, and the denominator of which is the number of    
shares of Company Common Stock owned by all Sellers as of the date of this      
Agreement, all as shown on EXHIBIT C hereto.                                    

      "Person" shall mean any natural person, corporation, business trust,
joint venture, association, company, firm, partnership or other entity or       
government or Governmental Authority.                                           

     "Plans" shall have the meaning set forth in Section 3.19(a) of this
Agreement.                                                                      

        Principal Sellers shall have the meaning set forth in the introductory
paragraph to this Agreement.                                                    

  "Purchaser" shall have the meaning set forth in the introductory
paragraph of this Agreement.                                                    

      "Purchaser Financial Statements" shall have the meaning set forth in
Section 4.6 of this Agreement.                                                  

         "Purchaser Indemnitee" shall have the meaning set forth in Section 10.1
of this Agreement.                                                              

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 "Purchaser Litigation" shall mean any litigation, legal action,
arbitration, proceeding, material demand, material claim or investigation       
pending, or to the Knowledge of Purchaser threatened, planned or reasonably     
probable, against, affecting or brought by or against Purchaser or any of its   
Subsidiaries.                                                                   

       "Purchaser's Opinion" shall have the meaning set forth in Section 8.6
of this Agreement.                                                              

         "Purchaser's Proposed Final Net Working Capital" shall have the meaning
set forth in Section 2.9(b)(i) of this Agreement.                               

        "Purchaser Series D Stock" shall have the meaning set forth in Recital
B of this Agreement.                                                            

     "Real Property" shall have the meaning set forth in Section 3.13 of
this Agreement.                                                                 

        "Redemption Notes" means promissory notes issued by the Company to its
stockholders other than Sellers, in redemption for their Company Common Stock,  
the total principal amount of which shall not exceed $922,118.32. The Redemption
Notes shall not bear interest prior to a default, and shall be due in full upon 
consummation of the Merger.                                                     

     "Release" shall mean the spilling, leaking, disposing, discharging,
emitting, depositing, injecting, leaching, escaping or any other release or     
threatened release, however defined, and whether intentional or unintentional,  
of any Hazardous Material.                                                      

       "Retirement Plan" shall have the meaning set forth in Section 5.11 of
this Agreement.                                                                 

        "Revised Schedules" shall have the meaning set forth in Section 5.7(b)
of this Agreement.                                                              

"Sellers" shall have the meaning set forth in the introductory
paragraph of this Agreement.                                                    

    "Shareholders' Representative" shall have the meaning set forth in
Section 9.6 of this Agreement.                                                  

       "Sellers' Opinion" shall have the meaning set forth in Section 7.9 of
this Agreement.                                                                 

       "SPD" shall have the meaning set forth in Section 3.19(b)(iv) of this
Agreement.                                                                      

  "Subsidiary" shall mean any corporation or other entity of which
securities or other ownership interests having ordinary voting power to elect a 
majority of the board of directors or other persons performing similar functions
are at the time directly or indirectly owned by the Company.                    

         "Surviving Corporation" shall have the meaning set forth in Section 2.1
of this Agreement.                                                              

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     "Tax Returns" shall mean all returns, declarations, reports, forms,
estimates, information returns, statements or other documents (including any    
related or supporting information) filed or required to be filed with or        
supplied to any Governmental Authority in connection with any Taxes.            

        "Taxes" shall mean all taxes, charges, fees, duties, levies, penalties
or other assessments, including, without limitation, income, gross receipts,    
excise, real and personal property, sales, transfer, license, payroll,          
withholding, social security, franchise, unemployment insurance, workers'       
compensation, employer health tax or other taxes, imposed by any Governmental   
Authority and shall include any interest, penalties or additions to tax         
attributable to any of the foregoing.                                           

         "Third Party Claim" shall have the meaning set forth in Section 10.3(a)
of this Agreement.                                                              

    "Third Party Products" shall have the meaning set forth in Section
3.11(f) of this Agreement.                                                      

   "Verification Period" shall have the meaning set forth in Section
2.9(b)(ii) of this Agreement.                                                   

         Section 1.2 Terms Generally. The definitions in Section 1.1 shall apply
equally to both the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,     
feminine and neuter forms. The words "include," "includes" and "including" shall
be deemed to be followed by the phrase "without limitation" even if not actually
followed by such phrase unless the context expressly provides otherwise. All    
references herein to Annexes, Articles, Sections, paragraphs, Exhibits and      
Schedules shall be deemed references to this Agreement unless the context shall 
otherwise require. Unless otherwise expressly defined, terms defined in the     
Agreement shall have the same meanings when used in any section, Exhibit or     
Schedule and terms defined in any section, Exhibit or Schedule shall have the   
same meanings when used in the Agreement or in any other section, Exhibit or    
Schedule. The words "herein," "hereof," "hereto" and "hereunder" and other words
of similar import refer to this Agreement as a whole and not to any particular  
provision of this Agreement.                                                    

ARTICLE II
MERGER

      Section 2.1 The Merger. At the Effective Time (as defined in Section
2.2) and subject to and upon the terms and conditions of this Agreement, the    
Certificate of Merger attached hereto as EXHIBIT A (the "Certificate of Merger")
and the applicable provisions of the DGCL, the Company shall be merged with and 
into MergerSub, the separate corporate existence of the Company shall cease and 
MergerSub shall continue as the surviving corporation of the Merger. MergerSub  
as the surviving corporation after the Merger is hereinafter sometimes referred 
to as the "Surviving Corporation."                                              

      Section 2.2 Closing; Effective Time. The closing of the transactions
contemplated by this Agreement (the "Closing") shall take place as soon as      
practicable after the satisfaction or                                           

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waiver of each of the conditions set forth in Articles VII and VIII below or at 
such other time as the parties agree (the "Closing Date"). The Closing shall    
take place at the offices of Purchaser, or at such other location as the parties
agree. In connection with the Closing, the parties shall cause the Merger to be 
consummated by filing the Certificate of Merger with the Secretary of State of  
the State of Delaware, in accordance with the relevant provisions of the DGCL.  
The "Effective Time" of the Merger shall be 12:01 a.m. on the day following the 
day on which the Articles of Merger are filed.                                  

        Section 2.3 Effect of the Merger. At the Effective Time, the effect of
the Merger shall be as provided in this Agreement, the Certificate of Merger and
the applicable provisions of the DGCL. At the Effective Time, all the property, 
rights, privileges, powers and franchises of the Company and MergerSub shall    
vest in the Surviving Corporation, and all debts, liabilities and duties of the 
Company and MergerSub shall become the debts, liabilities and duties of the     
Surviving Corporation.                                                          

Section 2.4 Certificate of Incorporation; Bylaws.             

                  (a) At the Effective Time, the Certificate of Incorporation of
MergerSub, as in effect immediately prior to the Effective Time, shall be the   
Certificate of Incorporation of the Surviving Corporation until thereafter      
amended as provided by the DGCL and the Certificate of Incorporation.           

             (b) At the Effective Time, the Bylaws of MergerSub, as in
effect immediately prior to the Effective Time, shall be the Bylaws of the      
Surviving Corporation until thereafter amended as provided by the DGCL, the     
Certificate of Incorporation of the Surviving Corporation and such Bylaws.      

         Section 2.5 Directors and Officers At the Effective Time, the directors
of the Surviving Corporation shall be Gary R. Vickers, Jeffrey M. Holben and J. 
Brian Searles, in each case until their respective successors are duly elected  
or appointed and qualified.                                                     

   Section 2.6 Surrender of Certificates; Purchase of Company Common
Stock; Effect of Merger on Company Common Stock.                                

            (a) At Closing, Sellers shall surrender to Purchaser for
cancellation certificates, properly endorsed for transfer or accompanied by duly
executed stock powers, representing all of the issued and outstanding shares of 
Company Common Stock held by the Sellers immediately prior to the Effective     
Time.                                                                           

                  (b) At Closing, Purchaser shall deliver (i) cash in the amount
of $11,077,882 (the "Closing Cash Payment"), by wire transfer of immediately    
available federal funds to such account(s) as Sellers may reasonably designate  
and (ii) 151,216 shares of Purchaser Series D Stock (the "Closing Stock         
Payment," and, together with the Closing Cash Payment the "Merger               
Consideration"). The Purchaser Series D Stock shall have the rights and         
preferences as set forth in the Restated Certificate of Incorporation of        
Purchaser, a form of which is attached hereto as EXHIBIT B.                     

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                (c) At the Effective Time, and without any further action by
any of the parties, all shares of Company Common Stock shall no longer be       
outstanding and shall automatically be canceled and retired and shall cease to  
exist, and each holder of a certificate representing any such shares of Company 
Common Stock shall cease to have any rights with respect thereto other than the 
right to receive his pro rata share of the Merger Consideration. All shares of  
Company Common Stock held in the treasury of the Company immediately prior to   
the Effective Time shall be canceled and extinguished and no payment shall be   
made with respect thereto.                                                      

      Section 2.7 Delivery of Merger Consideration; Closing Deliveries. At
the Closing, subject to Section 2.9:                                            

            (a) Purchaser shall pay or cause to be delivered to each
Seller the Merger Consideration to the extent attributable to the Company Common
Stock owned by such Seller as of the Effective Time, as set forth on EXHIBIT C. 

         (b) Each certificate of Company Common Stock shall be
delivered to MergerSub and canceled, and, simultaneously with such delivery and 
cancellation, the consideration into which such capital stock shall have been   
converted in the Merger shall be delivered to the persons entitled thereto under
this Agreement. From and after the Effective Time, each certificate which prior 
to the Effective Time represented shares of capital stock of the Company shall  
be deemed to represent only the right to receive the consideration contemplated 
herein, and the Sellers shall cease to have any rights with respect to the      
shares of capital stock formerly represented thereby, except as otherwise       
provided herein or by law.                                                      

                (c) If any certificate representing shares of Company Common
Stock shall have been lost, stolen or destroyed, upon the making of an affidavit
of that fact by the Seller claiming such certificate to be lost, stolen or      
destroyed and, if required by the Surviving Corporation or Purchaser, the       
posting by such person of a bond, in such reasonable amount as the Surviving    
Corporation or Purchaser may direct as indemnity against any claim that may be  
made against them with respect to such certificate, pursuant this Section 2.7,  
the Merger Consideration will be issued to the Seller claiming such lost        
certificate.                                                                    

         (d) Sellers shall deliver or cause to be delivered to
Purchaser the following:                                                        

                  (i) certificates representing the issued and
outstanding shares of Company Common Stock duly endorsed by the appropriate     
Seller, for transfer to Purchaser or accompanied by duly executed stock powers, 
in either case executed in blank and otherwise in form acceptable for transfer  
on the books of the Company;                                                    

                       (ii) closing certificates as set forth in Section
7.6;                                                                            

                         (iii) Sellers' Opinion as set forth in Section 7.9;

                       (iv) stock books, stock ledgers, minute books and
corporate seals of the Company;                                                 

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                           (v) a copy of the Certificate of Incorporation of the
Company, certified by the Secretary of State of Delaware, and a Certificate of  
Good Standing from the respective Secretary of State of the States of Delaware, 
Texas and Colorado with respect to the Company, each dated not more than five   
(5) days before the Closing;                                                    

                         (vi) a certificate executed by the Secretary of the
Company, dated as of the Closing Date, certifying that attached copies of the   
Company's bylaws and resolutions of the Company's Board of Directors authorizing
the transaction are true, correct and complete, and that such bylaws and        
resolutions were duly adopted and have not been amended or rescinded;           

                           (vii) any approvals required pursuant to Section 7.4;

                   (viii) the Employment Agreements, executed by
Searles, Thieme and Jones as set forth in Section 7.10;                         

                     (ix) the First Amendment to the Third Amended &
Restated Investors' Rights Agreement, executed by the Sellers, as set forth in  
Section 7.11; and                                                               

                        (x) the Escrow Agreement, executed by all Sellers.

               (e) In addition to the delivery of the Merger Consideration
pursuant to Section 2.7(a), Purchaser shall deliver or cause to be delivered to 
Sellers the following:                                                          

                           (i) closing certificates as set forth in Section 8.5;

                           (ii) Purchaser's Opinion as set forth in Section 8.6;

                         (iii) a copy of the Certificate of Incorporation of
the Purchaser, certified by the Secretary of State of Delaware and a Certificate
of Good Standing from the Secretary of State of the State of Delaware, each     
dated not more than five (5) days before the Closing;                           

                           (iv) the Employment Agreements executed by Purchaser;

                         (v) the Escrow Agreement, executed by Purchaser and
the Escrow Agent;                                                               

                       (vi) the First Amendment to the Third Amended and
Restated Investors' Rights Agreement, executed by Purchaser and the other       
parties thereto (other than the Sellers); and                                   

                  (vii) stock option grants to all Sellers and
Redemption Note holders.                                                        

    Section 2.8 Stock Transfer Books. At the Effective Time, the stock
transfer books of the Company with respect to all shares of capital stock of the
Company shall be closed and no further registration of transfers of such shares 
of capital stock shall thereafter be made on the records of the Company.        

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Section 2.9 Adjustment to Merger Consideration.               

               (a) At the Closing, $1,125,000 in cash and 16,436 shares of
the Purchaser Series D Stock, which shares are included in the aggregate number 
of shares described in Section 2.6(b)(ii), and which cash and shares otherwise  
would be deliverable as provided in Section 2.6(b) (such cash and shares        
together representing $2,500,000) shall be deposited into an escrow account     
pursuant to the Escrow Agreement attached as EXHIBIT D (the "Escrow Agreement").
As provided in the Escrow Agreement, a portion of the cash and Purchaser Series 
D Stock held pursuant to the Escrow Agreement shall be returned to Purchaser,   
and in the case of Purchaser Series D Stock cancelled, as appropriate to account
for (i) the amount of any post-closing adjustment pursuant to Section 2.9(b)    
below and (ii) amounts covered by the indemnity provisions of Section 10 below. 

                (b) Net Working Capital and Merger Consideration Adjustment.
As of December 31, 1999, the Net Working Capital of the Company was $1,760,038. 
After the Closing, there shall be a final determination of Net Working Capital  
as of the Effective Time (the "Final Net Working Capital") as follows:          

                       (i) Within 60 days following the date of Closing,
Purchaser shall deliver to Sellers' Representative (A) a consolidated balance   
sheet reflecting the assets and liabilities of the Company as of the Effective  
Time (the "Closing Balance Sheet") and (B) the work papers supporting the       
Closing Balance Sheet. The Closing Balance Sheet shall be prepared in accordance
with GAAP applied on a consistent basis. In addition, Purchaser shall deliver to
Sellers' Representative, along with the Closing Balance Sheet, a calculation of 
the Final Net Working Capital, based on the information contained in the Closing
Balance Sheet (the "Purchaser's Proposed Final Net Working Capital").           

                         (ii) Sellers' Representative shall have thirty (30)
days from receipt of the Closing Balance Sheet (the "Verification Period") to   
verify Purchaser's Proposed Final Net Working Capital. Any disagreements as to  
the Closing Balance Sheet or Purchaser's Proposed Final Net Working Capital     
shall be described in a written notice to Purchaser within the Verification     
Period (an "Adjustment Notice"), setting forth (A) Sellers' Representative's    
objections to Purchaser's Proposed Final Net Working Capital, (B) Sellers'      
Representative's determination of the Closing Balance Sheet and (C) Sellers'    
Representative's proposed calculation of the Final Net Working Capital. If      
Sellers' Representative does not deliver an Adjustment Notice to Buyer within   
the Verification Period, the Closing Balance Sheet shall be deemed final and    
binding on all parties and the Final Net Working Capital shall be equal to      
Purchaser's Proposed Final Net Working Capital. The Merger Consideration shall  
then be subject to potential adjustment in accordance with subparagraph (iv)    
below.                                                                          

                  (iii) If Sellers' Representative delivers an
Adjustment Notice and Purchaser and Sellers' Representative are unable to agree 
upon the amount of any adjustment to the Merger Consideration within fifteen    
(15) days after delivery of such Adjustment Notice, then a nationally recognized
independent public accounting firm to be mutually agreed upon by Purchaser and  
Sellers' Representative (the "Auditor") shall be requested to conduct a review  
and determine any amounts in dispute between the parties relating to the        
calculation of the Final Net Working Capital. The Auditor shall be instructed in
performing the review that Purchaser and                                        

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Sellers' Representative shall each be provided with copies of any and all       
correspondence and drafts distributed to any party and that the review shall be 
done as soon as is practicable. Purchaser and Sellers' Representative shall be  
granted reasonable access to all documents made available to the Auditor by the 
other party, provided that any information contained in the documents shall be  
subject to the confidentiality provisions set forth in this Agreement. Prior to 
the Auditor's issuance of its final determination, Purchaser and Sellers'       
Representative shall have the opportunity to provide the Auditor with input and 
any additional information that they deem relevant, provided that the Auditor   
shall not be required to use any such input or information in connection with   
its review and determination. The Auditor shall promptly deliver copies of its  
report to Purchaser and Sellers' Representative, setting forth its determination
of any amount due between the parties relating to the calculation of the Final  
Net Working Capital (the "Auditor's Report"). The Auditor's Report will be      
conclusive and binding upon all parties to this Agreement; the Final Net Working
Capital shall be calculated based on the determinations set forth in the        
Auditor's Report; and the Merger Consideration shall then be subject to         
potential adjustment in accordance with subparagraph (iv) below. Fifty percent  
of the costs and expenses of the Auditor and the Auditor's Report contemplated  
by this paragraph shall be borne by Sellers, and the remainder shall be borne by
Purchaser.                                                                      

                           (iv) Adjustments to the Merger Consideration shall be
made as set forth below, and any payments due under this Section 2.9(b)(iv)     
shall be made on the later of (X) thirty (30) days after the end of the         
Verification Period or (Y) in the event of delivery of an Adjustment Notice,    
thirty (30) days after the delivery of the Auditor's Report.                    

                              (A) in the event the Final Net Working
        Capital is greater than zero but less than $500,000 (in each case less
      the principal amount of the Redemption Notes outstanding immediately
prior to the Closing), no adjustment shall be made;           

                              (B) in the event the Final Net Working
        Capital is less than zero (less the principal amount of the Redemption
       Notes outstanding at or following the Closing), Sellers shall deliver
    to Purchaser in immediately available funds an amount equal to the
      difference between zero (less the principal amount of the Redemption
       Notes outstanding immediately prior to the Closing) and the Final Net
Working Capital; and                                          

                              (C) in the event the Final Net Working
    Capital is greater than $500,000 (less the principal amount of the
 Redemption Notes outstanding immediately prior to the Closing),
       Purchaser shall deliver to Sellers in immediately available funds pro
      rata in accordance with their Percentage Interest an amount equal to
         the difference between the Final Net Working Capital and $500,000 (less
      the principal amount of the Redemption Notes outstanding immediately
prior to the Closing).                                        

       Section 2.10 Intended Tax Consequences. It is intended by the parties
that the Merger shall constitute a reorganization within the meaning of Section 
368 of the Code. The Company and Sellers shall be solely responsible for all tax
planning, and for obtaining advice with respect to the federal and state income 
tax consequences to the Company and Sellers of the Merger and all related       
transactions. The Company and Sellers are not relying on Purchaser, MergerSub or
any advisors to Purchaser or

Petroleum Place Inc · S-1 · On 5/19/00 · EX-2.5

Filed On 5/19/00 4:57pm ET · SEC File 333-37486 · Accession Number 1035704-0-348

Registration Statement (General Form) · Form S-1Filing Table of Contents

EX-2.5 · Agreement and Plan of MergerExhibit Table of Contents

Registration Statement (General Form) · Form S-1
Filing Table of Contents

EX-2.5 · Agreement and Plan of Merger
Exhibit Table of Contents