Contribution Agreement - Convera Corp. and NBA Media Ventures LLC
CONTRIBUTION AGREEMENT
This CONTRIBUTION AGREEMENT (this "Agreement"), dated as of September
13, 2000, is made between Convera Corporation , a Delaware corporation (the
"Company"), and NBA Media Ventures, LLC, a Delaware limited liability company
("NBAMV").
RECITALS
A. NBAMV wishes to contribute to the Company, and the Company wishes to
acquire from NBAMV, the assets set forth on Schedule 1 (the "Contributed
Assets") contemporaneously with the closing (the "Merger Closing") under the
Agreement and Plan of Contribution and Merger (the "Merger Agreement") dated
as of April 30, 2000 by and among Intel Corporation, a Delaware corporation
("Intel"), the Company, Excalibur Technologies Corporation, a Delaware
corporation that owns all of the issued and outstanding capital stock of the
Company ("Excalibur"), and Excalibur Transitory, Inc., a Delaware corporation
and a wholly-owned subsidiary of the Company ("Transitory"); and
B. In consideration for the contribution of the Contributed Assets by
NBAMV contemporaneously with the Merger Closing, the Company shall issue to
NBAMV 4,716,940 fully paid and non-assessable shares of its Class A Common
Stock, par value $.01 per share (the "Class A Common Stock"), subject to
adjustment pursuant to this Agreement.
In consideration of the promises set forth below,
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Contribution and Issuance.
(a) At the Closing (as defined in Section 2), (i) NBAMV
shall contribute the Contributed Assets to the Company by executing and
delivering the Bill of Sale and Agreement substantially in the form annexed
hereto as Exhibit A, the NBA License Agreement generally in the form annexed
hereto as Exhibit B and the Sublease Agreement substantially in the form of
Exhibit G (collectively, the "Transfer Documents"), (ii) in consideration of
such contribution, the Company shall issue to NBAMV the number of shares of
its fully paid and non-assessable Class A Common Stock due under Section 1(b),
and (iii) the parties shall execute and deliver the Registration Rights
Agreement in the form attached as Exhibit E.
(b) Pursuant to its obligations under Section 1(b)(ii),
the Company shall issue to NBAMV 4,716,940 fully paid and non-assessable
shares of its Class A Common Stock
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("Shares"), provided that the number of Shares to be issued to NBAMV shall be
increased to the extent necessary to result in NBAMV receiving Shares
representing 10% of the aggregate number of shares of issued and outstanding
Class A Common Stock and non-voting Class B Common Stock, par value $.01 per
share ("Class B Common Stock"), after giving effect to the Merger Closing and
the issuance of shares of Class A Common Stock issuable upon conversion of the
Company's issued and outstanding preferred stock, par value $.01 per share
(the "Common Equity"). In addition, if between the date of this Agreement and
the Closing the outstanding shares of Common Equity or the Shares shall have
been changed into a different number of shares or a different class, by reason
of any stock dividend, subdivision, reclassification, recapitalization, split,
combination or exchange of shares, then the number of Shares to be issued to
NBAMV shall be correspondingly adjusted to reflect such stock dividend,
subdivision, reclassification, recapitalization, split, combination or
exchange of shares. If it shall be determined after the Closing that NBAMV did
not receive the number of Shares required pursuant to this Section 1, the
Company shall promptly issue to NBAMV a number of shares of Class A Common
Stock equal to the shortfall, or NBAMV shall promptly convey back to the
Company a number of shares of Class A Common Stock equal to the excess, in
each case for no additional consideration.
(c) The Company represents and warrants to NBAMV that,
when issued and delivered in accordance with the terms of this Agreement, the
Shares (i) will be duly and validly issued, fully paid and nonassessable, and
(ii) will be free of preemptive rights and restrictions on transfer other than
those imposed by Federal and state securities laws.
2. Closing.
(a) Closing; Section 351 Transaction. The closing of the
issuance of the Shares (the "Closing") shall be held immediately following the
Merger Closing at such time and place as the parties shall agree; provided,
however, that if each of the conditions to closing set forth in Section 6 have
not been satisfied or waived by the Merger Closing, the Closing shall be held
not later than two (2) business days following the satisfaction or waiver of
such conditions. The parties intend that the contribution of the Contributed
Assets by NBAMV and the issuance of the Shares by the Company shall constitute
a single integrated transaction with the contribution of assets and transfer
of shares contemplated by the Merger Agreement, which transaction shall be
governed by section 351 of the Internal Revenue Code of 1986, as amended (the
"Code"); each party to this Agreement shall report the transaction accordingly
for all tax purposes and shall not take a position, on a tax return or
otherwise, that is inconsistent with such treatment. Notwithstanding the
foregoing, each party shall be responsible for its own income tax consequences
arising from the contribution of the Contributed Assets and the receipt of the
Shares.
(b) Deliveries. At the Closing, the Company shall deliver
to NBAMV a certificate or certificates (as NBAMV shall reasonably request)
registered in the name of NBAMV (or in the name of a nominee of NBAMV as
indicated on the signature pages hereof), that in the aggregate represent the
Shares. The certificates representing the Shares shall bear a legend
restricting transfer under the Securities Act of 1933, as amended (the
"Securities Act"), substantially in the form annexed hereto as Exhibit C. At
the Closing, the parties also shall
<PAGE> 3
execute and deliver the Transfer Documents, the Registration Rights Agreement
and each of the certificates required under Section 6.
3. Representations and Warranties of the Company. The Company
hereby represents and warrants to NBAMV as of the date hereof and as of the
Closing (assuming, in the case of the representations as of Closing, the
consummation of the transactions contemplated by the Merger Agreement):
(a) Organization and Good Standing. The Company and each
of the Subsidiaries (as defined in Section 3(f)(i)) is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization and has all requisite corporate power and authority to own, lease
and operate its properties and to carry on its businesses as now conducted and
as proposed to be conducted. The Company and each of the Subsidiaries is duly
qualified or licensed and in good standing to do business in each jurisdiction
in which the failure to so qualify would not reasonably be expected to have a
material adverse effect on the business, properties, operations, prospects or
financial condition (a "Material Adverse Effect") of the Company or the
Subsidiaries. The Company has previously made available to NBAMV true and
complete copies of the certificate of incorporation and bylaws (or similar
governing documents) of the Company and each of the Subsidiaries that are
currently in full force and effect. True and complete copies of the forms of
certificate of incorporation and bylaws that will be adopted by the Company on
or prior to the Merger Closing, and that will be in full force and effect at
the Closing, are annexed hereto as Exhibit D.
(b) Authorization. The Company, Excalibur and Transitory
have all necessary corporate right, power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby, including
the issuance, transfer and delivery of the Shares by the Company. All
corporate and, if necessary, stockholder action on the part of the Company,
Excalibur and Transitory necessary for the authorization, execution, and
delivery of this Agreement, the performance of all of its obligations under
this Agreement, and the transfer, issuance and delivery of the Shares, has
been taken. Assuming due execution and authorization by NBAMV, when this
Agreement is executed and delivered by the Company, Excalibur and Transitory
it will constitute the legal, valid and binding obligation of the Company,
Excalibur and Transitory, enforceable against the Company, Excalibur and
Transitory in accordance with its terms, subject to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general principles of equity.
(c) Consents and Approvals; No Violations. Except for the
items listed on Schedule 3(c) and for any filings, permits, authorizations,
consents and approvals, the nonexistence of which would not reasonably be
expected, individually or in the aggregate, to have a Material Adverse Effect
on the Company or the Subsidiaries, no filing with or notice to, and no
permit, authorization, consent or approval of any United States (federal,
state or local) or foreign court or tribunal, or administrative, governmental
or regulatory body, agency or authority (a "Governmental Entity") is necessary
for the execution and delivery by the Company or the Subsidiaries of this
Agreement or the consummation by the Company, Excalibur or Transitory of the
transactions contemplated hereby. Neither the execution, delivery and
performance of this Agreement by the Company, Excalibur or Transitory, nor the
consummation by the Company,
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Excalibur or Transitory of the transactions contemplated hereby, will (a)
conflict with or result in any breach of any provision of the Certificate of
Incorporation or bylaws (or similar governing documents) of the Company or any
of the Subsidiaries, (b) result in a violation or breach of or constitute
(with or without due notice or lapse of time or both) a default (or give rise
to any right of termination, amendment, cancellation or acceleration) under
any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, lease, license, contract, agreement or other instrument or
obligation to which the Company or any of the Subsidiaries is a party or by
which the Company or any of the Subsidiaries or any of their respective
properties or assets is bound, (c) result in any Lien (as defined below) on
the assets or shares of capital stock of the Company or any of the
Subsidiaries, or (d) violate any order, writ, injunction, decree, law,
statute, rule or regulation applicable to the Company or any of the
Subsidiaries or any of their respective properties or assets, except, with
respect to clauses (b), (c) and (d) above, for matters the existence of which
would not reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect on the Company or any of such Subsidiaries. "Lien"
means, with respect, to any asset (including any security), any mortgage,
lien, pledge, charge, security interest or encumbrance of any kind in respect
of such assets; provided, however, that the term "Lien" shall not include (i)
statutory liens for taxes that are not yet due and payable or are being
contested in good faith by appropriate procedures and are disclosed in the
Merger Agreement or are otherwise not material, (ii) statutory or common law
liens to secure obligations to landlords, lessors or renters under leases or
rental agreements confined to the premises rented, (iii) deposits or pledges
made in connection with, or to secure payment of, workers' compensation,
unemployment insurance, old age pension or other social security programs
mandated by applicable law, (iv) statutory or common law liens in favor of
carriers, warehousemen, mechanics and materialmen, to secure claims for labor,
materials or supplies and other like liens, and (v) restrictions on transfer
of securities imposed by applicable state and federal securities laws.
(d) No Default. Neither the Company nor any of the
Subsidiaries is in breach, default or violation (and no event has occurred
that with notice or the lapse of time or both would constitute a breach,
default or violation) of any term, condition or provision of (i) its
Certificate of Incorporation or bylaws (or similar governing documents), (ii)
any note, bond, mortgage, indenture, lease, license, contract, agreement or
other instrument or obligation to which it is a party or by which it or any of
its properties and assets is bound, or (iii) any order, writ, injunction,
decree, law, statute, rule or regulation applicable to it or any of its
properties or assets, except, with respect to clauses (ii) and (iii) above,
for matters the existence of which would not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect on the
Company or any of the Subsidiaries.
(e) Capitalization.
(i) As of the Closing, the authorized capital stock
of the Company shall consist of One Hundred Million (100,000,000) shares of
Class A Common Stock, Forty Million (40,000,000) shares of Class B Common
Stock, and Five Million (5,000,000) shares of preferred stock, par value $.01
per share ("Company Preferred Stock"), of which 49,587 shares are designated
as Cumulative Convertible Preferred Stock. Unless the Company shall enter into
other transactions providing for the issuance of capital stock subsequent to
the date of this
<PAGE> 5
Agreement and prior to the Closing and except for any adjustment to the total
number of Shares and shares of Class B Common Stock to be issued to Intel as
provided in Section 1.1 of the Merger Agreement at the Closing (but prior to
the issuance of the Shares), based on Excalibur's outstanding capital stock as
of the close of business on July 15, 2000 (A) the Company shall have issued
and outstanding 29,547,018 shares of Class A Common Stock, 12,633,646 shares
of Class B Common Stock and 27,180 shares of Company Preferred Stock (which in
the aggregate shall be convertible into 271,800 shares of Class A Common); (B)
Intel will have acquired 14,478,039 shares of Class A Common Stock and
12,633,646 shares of Class B Common Stock; (C) the Company will have reserved
12,633,646 shares of Class A Common Stock for issuance or delivery in
connection with the conversion of Class B Common Stock into shares of Class A
Common Stock; and (D) the Company will have reserved 2,733,628 shares of Class
A Common Stock for issuance or delivery in connection with the exercise of
Assumed Options. All of the outstanding shares of Class A Common Stock, Class
B Common Stock and Company Preferred Stock have been validly issued and are
fully paid, nonassessable and free of preemptive rights.
(ii) The Company shall have reserved no more than
11,250,000 shares of Class A Common Stock for issuance upon exercise or
otherwise deliverable in connection with the exercise of outstanding Company
Stock Options. "Company Stock Option" means any option, warrant or other right
to purchase shares of Class A Common Stock, other than the Assumed Options. As
of Closing, no options, warrants or other rights to purchase shares of the
Company's capital stock will have been or will be issued other than pursuant
to Company Stock Options or Assumed Options and no Company Stock Options or
Assumed Options will have been issued to any person or entity other than a
current or former employee, director or consultant.
(iii) Except as set forth in this Section 3(e), at
Closing there will be, outstanding (i) no shares of capital stock or other
voting securities of the Company, (ii) no securities of the Company or any of
the Subsidiaries convertible into or exchangeable or exercisable for shares of
capital stock or other securities of the Company, (iii) no options, preemptive
or other rights to acquire from the Company or any of the Subsidiaries, and no
obligations of the Company or any of the Subsidiaries to issue, any capital
stock, voting securities or securities convertible into or exchangeable or
exercisable for capital stock or other voting securities of the Company, and
(iv) no equity equivalent interest in the ownership or earnings of the Company
or its Subsidiaries or other similar rights. Except for the Merger Agreement,
the Registration Rights Agreement to be executed pursuant thereto by Intel and
the Company and as set forth on Schedule 3(e), there are no contribution
agreements, subscription agreements, stockholder agreements, voting trusts or
other agreements or understandings to which the Company is a party or by which
it is bound relating to the issuance, voting, registration or repurchase of
any shares of capital stock of the Company or the making of any dividends or
distributions with respect to the capital stock of the Company.
(f) Subsidiaries.
(i) Schedule 3(f)(i) sets forth a list of each
corporation, partnership, limited liability company, association or other
business entity in which the Company or Excalibur owns or controls, directly
or indirectly, more than 50% of the stock or other interests
<PAGE> 6
entitled to vote (each a "Subsidiary" and, together with Excalibur, the
"Subsidiaries"), the name of each other person or entity that, to the
knowledge of the Company, owns any stock or other interests entitled to vote
in such Subsidiaries (other than Excalibur) and the type and amount of stock
or other interest owned by any such other person or entity.
(ii) Schedule 3(f)(ii) sets forth a true and complete
list of each equity investment in an amount of One Hundred Thousand Dollars
($100,000) or more or that represents a five percent (5%) or greater ownership
interest in the subject of such investments made by the Company or any of the
Subsidiaries in any person or entity other than the Subsidiaries ("Other
Interests"). Each of the Other Interests are owned by the Company or by one or
more of the Subsidiaries free and clear of all Liens.
(g) Private Offering. Subject to the truth and accuracy of
NBAMV's representations set forth in Section 4 of this Agreement, the offer,
sale and issuance of the Shares as contemplated by this Agreement will be made
in reliance on one or more exemptions from the registration requirements of
the Securities Act of 1933, as amended (the "Securities Act"), and the
qualification or registration requirements of applicable state securities or
blue sky laws.
(h) Brokers' Fees and Commissions. Neither the Company nor
any of its officers, directors, employees or agents has employed any
investment banker, broker, or finder in connection with the transactions
contemplated by this Agreement.
(i) The Merger Agreement. Each of the representations and
warranties of the Company, Excalibur, Transitory and, to the knowledge of the
Company, Intel set forth in the Merger Agreement are true and correct in all
material respects. Each of the Company, Transitory, Excalibur and, to the
knowledge of the Company, Intel has complied in all material respects with the
covenants set forth in the Merger Agreement required to be complied with by
it. As of the Closing, all of the conditions to the Merger Closing set forth
in the Merger Agreement will have been satisfied, except for any condition
disclosed to NBAMV the satisfaction of which was waived in accordance with the
Merger Agreement.
4. Representations and Warranties of NBAMV. NBAMV represents and
warrants to the Company as of the date hereof and as of the Closing as
follows:
(a) Organization and Good Standing. NBAMV is a limited
liability company duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization.
(b) Authorization. NBAMV has or will have at the Closing all
necessary limited liability company right, power and authority to enter into
this Agreement and to consummate the transactions contemplated hereby. As of
the Closing, all limited liability company action on the part of NBAMV
necessary for the authorization, execution, and delivery of this Agreement and
the performance of all of its obligations under this Agreement, will have been
taken. Assuming due execution and authorization by the Company, when the
Agreement is executed and delivered by NBAMV it shall constitute a legal,
valid and binding obligation of NBAMV, enforceable against NBAMV in accordance
with its terms, subject to bankruptcy,
<PAGE> 7
insolvency, reorganization and other laws of general applicability relating to
or affecting creditors' rights and to general principles of equity.
(c) Consents and Approvals; No Violations. Except for the
items listed on Schedule 4(c) and for any filings, permits, authorizations,
consents and approvals the nonexistence of which would not reasonably be
expected, individually or in the aggregate, to have a Material Adverse Effect
on the Contributed Assets, no filing with or notice to, and no permit,
authorization, consent or approval of any Governmental Entity, is necessary
for the execution and delivery by NBAMV of this Agreement or the consummation
by NBAMV of the transactions contemplated hereby. Neither the execution,
delivery and performance of this Agreement by NBAMV, nor the consummation by
NBAMV of the transactions contemplated hereby, will (a) conflict with or
result in any breach of any provision of the Certificate of Formation or
limited liability company agreement (or similar governing documents) of NBAMV,
(b) result in a violation or breach of or constitute (with or without due
notice or lapse of time or both) a default (or give rise to any right of
termination, amendment, cancellation or acceleration) under any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, lease,
license, contract, agreement or other instrument or obligation to which NBAMV
is a party or by which it or any of its properties and assets is bound, (c)
result in any Lien on the assets of or membership interests in NBAMV or (d)
violate any order, writ, injunction, decree, law, statute, rule or regulation
applicable to NBAMV or any of its properties or assets, except with respect to
matters the existence of which would not reasonably be expected, individually
or in the aggregate, to have a Material Adverse Effect on the Contributed
Assets.
(d) No Default. NBAMV is not in breach, default or violation
(and no event has occurred that with notice or the lapse of time or both would
constitute a breach, default or violation) of any term, condition or provision
of (i) its Certificate of Formation or limited liability company agreement (or
similar governing documents), (ii) any note, bond, mortgage, indenture, lease,
license, contract, agreement or other instrument or obligation to which NBAMV
is a party or by which it or any of its properties and assets is bound, or
(iii) any order, writ, injunction, decree, law, statute, rule or regulation
applicable to NBAMV or any of its properties or assets, except, with respect
to clauses (ii) and (iii) above, for matters the existence of which would not
reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect on the Contributed Assets.
(e) Ownership of Contributed Assets. To the knowledge of
NBAMV, NBAMV owns or possesses adequate licenses or other rights to use and
assign, free and clear of Liens, orders and arbitration awards, all of the
Contributed Assets to the extent set forth in the Transfer Documents.
(f) No Infringement by NBAMV. To the knowledge of NBAMV as
of the date of this Agreement, the Contributed Assets that consist of
intellectual property and the products and services consisting of the
"GameStats" software included in the Contributed Assets do not infringe upon,
violate or constitute the unauthorized use of any valid and enforceable rights
owned or controlled by any third party.
<PAGE> 8
(g) Brokers' Fees and Commissions. Neither NBAMV nor any of
its officers, directors, employees or agents has employed any investment
banker, broker, or finder in connection with the transactions contemplated by
this Agreement.
(h) Investment. NBAMV is an accredited investor as defined
in Rule 501 of Regulation D of the Securities Act and will acquire the Shares
for investment for its own account, not as a nominee or agent, and not with a
view to, or for resale in connection with, any distribution thereof.
(i) Experience. NBAMV has such knowledge and experience in
finance, securities, investments and other business matters so as to be able
to protect its interest in connection with the transactions contemplated by
this Agreement.
(j) Risk of Loss. NBAMV understands the various risks of an
investment in the Company as proposed herein and can afford to bear such
risks, including, without limitation, the risks of losing its entire
investment.
(k) Access to Information. NBAMV has had a reasonable
opportunity to ask questions of and receive answers from a person acting on
behalf of the Company concerning the purchase of the Shares and all such
questions have been answered to the satisfaction of NBAMV.
(l) No General Solicitation. NBAMV is not purchasing any of
the Shares as a result of or subsequent to any advertisement, article, notice
or other communication published in any newspaper, magazine or similar media
or broadcast over television or radio, any seminar or meeting, or any
solicitation of a subscription by a person not previously known to NBAMV in
connection with investments in securities generally.
5. Indemnification. (a)The Company, Excalibur and Transitory shall
jointly and severally indemnify and hold harmless NBAMV, its members and each
of their respective affiliates and the officers, directors, employees, agents,
governors and representatives of NBAMV, its members and each of their
respective affiliates ("NBAMV Covered Persons") against all loss, liability,
damage, cost or expense (including reasonable fees and expense of counsel in
any matter, including any claim between the parties to this Agreement)
("Losses") that NBAMV or any of the NBAMV Covered Persons shall suffer,
sustain or become subject to as a result of any misrepresentation or breach of
warranty, covenant or other agreement of the Company, Excalibur or Transitory
contained in this Agreement.
(b) NBAMV shall indemnify and hold harmless the Company and
its affiliates and the officers, directors, employees, agents, and
representatives of the Company and its affiliates ("Company Covered Persons")
against all Losses that the Company or the Company Covered Persons shall
suffer, sustain or become subject to as a result of any misrepresentation or
breach of warranty, covenant or other agreement of NBAMV contained in this
Agreement.
<PAGE> 9
6. Conditions to Closing.
(a) The respective obligations of each party to effect the
contribution of the Contributed Assets and the issuance of the Shares
(together, the "Transactions") shall be subject to the satisfaction at or
prior to the Closing of the following conditions:
(i) the Merger Closing shall have occurred;
(ii) no statute, rule, regulation, executive order,
decree, ruling or injunction shall have been enacted, entered, promulgated or
enforced by any United States federal or state court or United States federal
or state Governmental Entity that prohibits, restrains, enjoins or restricts
the consummation of the Transactions;
(iii) the transactions contemplated by the Assignment
and Assumption Agreement and Release, substantially in the form of Exhibit F
hereto (the "Assignment Agreement"), shall have been consummated, provided
that the Company shall not be permitted to not close under this Section
6(a)(iii) if such transactions were not consummated due to a breach by it
under the Assignment Agreement;
(iv) any governmental or regulatory notices, approvals
or other requirements necessary to consummate the Transactions shall have been
given, obtained or complied with, as applicable;
(v) the other party shall have executed and delivered
each of the Transfer Documents and Registration Rights Agreement; and
(vi) the waiting periods (and any extension thereof)
applicable to the Transactions under the HSR Act shall have expired or been
terminated.
(b) The obligation of the Company to effect the Transactions
is subject to the satisfaction at or prior to the Closing of the following
conditions:
(i) the representations and warranties of NBAMV
contained in this Agreement shall be true and correct (except to the extent
that the aggregate of all breaches thereof would not reasonably be expected to
have a Material Adverse Effect on the Contributed Assets) at and as of the
Closing with the same effect as if made at and as of the Closing (except to
the extent such representations specifically relate to an earlier date, in
which case such representations shall be true and correct as of such earlier
date, and in any event, subject to the foregoing Material Adverse Effect
qualification) and, at the Closing, NBAMV shall have delivered to the Company
a certificate to that effect, executed by an authorized person of NBAMV; and
(ii) each of the covenants and obligations of NBAMV to
be performed at or before the Closing pursuant to the terms of this Agreement
shall have been duly performed (except to the extent the aggregate of all
breaches thereof would not reasonably be expected to have a Material Adverse
Effect on the Contributed Assets) at or before the Closing and, at the
<PAGE> 10
Closing, NBAMV shall have delivered to the Company a certificate to that
effect, executed by an authorized person of NBAMV.
(c) The obligations of NBAMV to effect the Transactions are
subject to the satisfaction at or prior to the Closing of the following
conditions:
(i) NBAMV shall have received the requisite consent of its
members to the consummation of the transactions contemplated by this
Agreement;
(ii) the representations and warranties of the Company
contained in this Agreement shall be true and correct (except to the extent
that the aggregate of all breaches thereof would not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect on the
Company or the Subsidiaries) at and as of the Closing with the same effect as
if made at and as of the Closing (except to the extent such representations
specifically relate to an earlier date, in which case such representations
shall be true and correct as of such earlier date, and in any event, subject
to the foregoing Material Adverse Effect qualification) and, at the Closing,
the Company shall have delivered to NBAMV a certificate to that effect,
executed by a duly authorized executive officer of the Company;
(iii) each of the covenants and obligations of the Company to
be performed at or before the Closing pursuant to the terms of this Agreement
shall have been duly performed (except to the extent the aggregate of all
breaches thereof would not reasonably be expected to have a Material Adverse
Effect on the Company) at or before the Closing and, at the Closing, the
Company shall have delivered to NBAMV a certificate to that effect, executed
by a duly authorized executive officer of the Company;
(iv) since the date hereof, there shall have been no events,
changes or effects, individually or in the aggregate, with respect to the
Company or the Subsidiaries that would reasonably be expected, individually or
in the aggregate, to have a Material Adverse Effect on the Company or the
Subsidiaries;
(v) nothing shall have occurred that would result in Intel,
NBAMV and the stockholders of Excalibur (determined immediately prior to the
consummation of the transactions contemplated by the Merger Agreement), in the
aggregate, not owning "control" (as defined in Section 368(c) of the Code) of
the Company immediately following the consummation of the transactions
contemplated by the Merger Agreement and the Contribution Agreement;
(vi) the Company shall have delivered a certificate, executed
by a duly authorized executive officer of the Company, stating as of the
Closing (A) the number of Shares of issued and outstanding Common Equity,
which certificate shall specifically state the number of issued and
outstanding shares of Class A Common Stock and Class B Common Stock, and the
number of shares of Class A Common Stock issuable upon exercise of the Assumed
Options and upon conversation of the Preferred Stock, and (B) whether any
stock dividend, subdivision, reclassification, recapitalization, split,
combination or exchange of shares has occurred since the date hereof;
<PAGE> 11
(vii) NBAMV shall be reasonably satisfied that (A) all of the
conditions to the Merger Closing have been satisfied or waived and, at the
Closing, the Company shall have provided to NBAMV a certificate to that
effect, executed by a duly authorized executive officer of the Company and (B)
the waiver of any such condition has not resulted in the transactions
contemplated by the Merger Agreement being materially modified; and
(viii) the Certificate of Incorporation and Bylaws of the
Company shall be in the form attached hereto as Exhibit D.
7. Compliance with the Merger Agreement. The Company, Excalibur
and Transitory shall use commercially reasonable efforts to (i) comply with
their respective obligations under the Merger Agreement, and (ii) cause
consummation of the Merger Transactions on or before December 31, 2000 in
accordance with the terms of the Merger Agreement.
8. Miscellaneous
.
(a) Amendment. This agreement may be amended only by a
writing signed by each party hereto.
(b) Assignment. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective
successors and permitted assigns. Except as otherwise provided in this
Agreement, this Agreement may not be transferred, assigned or delegated by
either party by operation of law or otherwise without the prior written
consent of the other party, provided that NBAMV may assign its rights
hereunder to any of its affiliates without the consent of the Company.
(c) Governing Law. This Agreement shall be governed by and
construed exclusively in accordance with the internal laws of the State of
Delaware as applied to agreements entered into and to be performed entirely
within Delaware.
(d) Separability. Nothing in this Agreement shall require
any act or omission contrary to an express provision of applicable statute or
regulation. If any provision of this Agreement shall be deemed invalid or
unenforceable by any court or arbitrator having jurisdiction, the court or
arbitrator shall have the discretion to modify the provision to the extent
necessary to make it valid or enforceable, and the provision (as so modified)
and the balance of this Agreement shall remain in effect and shall be enforced
to the maximum extent permitted by law.
(e) Waiver. No waiver of any breach or potential breach of
any party under this Agreement shall be effective unless set forth in a
writing duly signed by the party granting such waiver, and no waiver of the
breach of any matter on any one occasion shall constitute a waiver of a breach
of such matter or any other matter on any subsequent occasion. The failure of
any party to seek redress for violation of, or to insist upon the strict
performance of, any
<PAGE> 12
provision of this Agreement shall not prevent a subsequent act, which would
have originally constituted a violation, from having the effect of an original
violation.
(f) Headings. The headings contained in this Agreement are
inserted for convenience of reference only and shall not be a part, control or
affect the meaning hereof. All references herein to Sections are to the
Sections of this Agreement.
(g) Notices. Any notice or other communication required or
permitted hereunder shall be delivered as set forth on Schedule 8(g).
(h) Further Assurances. Each party shall, upon the
reasonable request of another party, execute and deliver such additional
documents and instruments, and shall perform such additional acts, as may be
necessary or appropriate to carry out or clarify the terms of this Agreement.
. (i) Expenses. Each party shall bear its own expenses (including the fees and
disbursements of its attorneys and accountants) incurred in connection with
the negotiation and preparation of this Agreement and in connection with all
obligations required to be performed by it under this Agreement, except that
the parties shall each pay 50% of the costs of any HSR filing.
. (j) Entire Agreement. This Agreement (including the exhibits
and schedules hereto) contain a complete statement of the arrangements among
the parties with respect to this subject matter, and supersede all prior
agreements and understandings among them with respect to such subject matter.
. (k) Cumulative Remedies The rights and remedies provided by
this Agreement are cumulative and the use of any one right or remedy by any
party shall not preclude or waive its right to use any or all other remedies.
. (l) Construction. The parties have participated jointly in
the negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties, and no presumption or burden of proof
shall arise disfavoring any party by virtue of the authorship of any
provisions of this Agreement.
(m) Counterparts. This Agreement may be executed in any
number of counterparts with the same effect as if all parties hereto had
signed the same document. All counterparts shall be construed together and
shall constitute one document.
[SIGNATURE PAGE TO FOLLOW.]
<PAGE> 13
IN WITNESS WHEREOF, the parties have executed this Agreement to be
effective as of the date first written above.
NBA MEDIA VENTURES LLC
By: /s/David J. Stern
--------------------------------
Address:
----------------------------------
----------------------------------
----------------------------------
Attention:
------------------------
Name in which Shares shall be registered:
-----------------------------------------
CONVERA CORPORATION
By: /s/Patrick C. Condo
----------------------------------
For purposes of Sections 5, 7 and 8(c) of the above agreement:
EXCALIBUR TECHNOLOGIES CORPORATION
By: /s/Patrick C. Condo
----------------------------------
EXCALIBUR TRANSITORY, INC.
By: /s/Patrick C. Condo
---------------------------------
<PAGE> 14
<CAPTION>
EXHIBITS
--------
EXHIBIT A BILL OF SALE
EXHIBIT B NBA LICENSE AGREEMENT
EXHIBIT C LEGEND
EXHIBIT D CERTIFICATE OF INCORPORATION AND BY-LAWS
EXHIBIT E REGISTRATION RIGHTS AGREEMENT
EXHIBIT F ASSIGNMENT AND ASSUMPTION AGREEMENT AND
RELEASE
EXHIBIT G SUB-LEASE
SCHEDULES
---------
SCHEDULE 1 CONTRIBUTED ASSETS
SCHEDULE 3(c) COMPANY CONSENTS
SCHEDULE 3(e) VOTING AGREEMENTS AND INTEL EQUITY
ARRANGEMENTS
SCHEDULE 3(f)(i) SUBSIDIARIES
SCHEDULE 3(f)(ii) OTHER INTERESTS
SCHEDULE 4(c) NBAMV CONSENTS
SCHEDULE 8(g) NOTICES
<PAGE> 15
Exhibit A - Bill of Sale
<PAGE> 16
Exhibit B - NBA License Agreement
<PAGE> 17
Exhibit C - Legend
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY APPLICABLE STATE
SECURITIES LAWS AND NEITHER THE SECURITIES NOR ANY INTEREST THEREIN MAY BE
OFFERED, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR SUCH APPLICABLE
STATE SECURITIES LAWS, OR AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES
ACT AND SUCH LAWS.
<PAGE> 18
Exhibit D - Certificate of Incorporation and Bylaws
<PAGE> 19
Exhibit E - Registration Rights Agreement
<PAGE> 20
Exhibit F - Assignment and Assumption Agreement and Release
<PAGE> 21
Exhibit G - Sub-Lease
<PAGE> 22
Schedule 1 - Contributed Assets
The assets assigned and transferred under the Transfer Documents.
<PAGE> 23
Schedule 4(c) - NBAMV Consents
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.
<PAGE> 24
Schedule 8(g) - Notices
Except as may be otherwise provided in the Contribution Agreement, all
notices, requests, waivers and other communications made pursuant to the
Contribution Agreement shall be in writing and shall be conclusively deemed to
have been duly given (a) when hand delivered to the other party; (b) when
received when sent by facsimile at the address and number set forth below; (c)
three business days after deposit in the U.S. mail with first class or certified
mail receipt requested postage prepaid and addressed to the other party as set
forth below; or (d) the next business day after deposit with a national
overnight delivery service, postage prepaid, addressed to the parties as set
forth below with next-business-day delivery guaranteed, provided that the
sending party receives a confirmation of delivery from the delivery service
provider.
To NBAMV: To the Company:
NBA Media Ventures, LLC Convera Corporation
Olympic Tower 1921 Gallows Road, Suite 200
645 Fifth Avenue Vienna, Virginia 22182
New York, NY 10022 Telecopier: (703) 761-1990
Telecopier: (212) 888-8374 Attention: Chief Financial Officer
Attention: Ed Desser
With copies to: With copies to:
Proskauer Rose LLP Heller, Ehrman, White & McAuliffe LLP
1585 Broadway 711 Fifth Avenue
New York, NY 10022 New York, New York 10028
Telecopier: (212) 969-2900 Telecopier: (212) 832-3353
Attention: Joseph M. Leccese, Esq. Attention: Peter DiIorio, Esq.
and
Gibson, Dunn & Crutcher LLP
333 South Grand Avenue
Los Angeles, California 90071
Telecopier: (213) 229-6360
Attention: Karen E. Bertero, Esq.
Each person making a communication hereunder by facsimile shall promptly
confirm by telephone to the person to whom such communication was addressed each
communication made by it by facsimile pursuant hereto but the absence of such
confirmation shall not affect the validity of any such communication. A party
may change or supplement the addresses given above, or designate additional
addresses, for purposes of the Contribution Agreement by giving the other party
written notice of the new address in the manner set forth above.