PLAN OF DISSOLUTION
OF BE INCORPORATED
This Plan of Dissolution (the "Plan") is intended to accomplish the
dissolution and winding-up of Be Incorporated, a Delaware corporation ("Be"), in
accordance with the Delaware General Corporation Law, as follows:
1. The Board of Directors of Be (the "Board of Directors") has adopted this
Plan and called a special meeting (the "Meeting") of the holders of Be's common
stock to approve dissolution of Be pursuant to this plan of dissolution. If
stockholders holding a majority of Be's outstanding common stock, par value
$0.001 per share (the "Common Stock"), vote in favor of the approval of this
Plan at the Meeting, the Plan shall constitute the adopted Plan of Be as of the
date of the Meeting, or such later date on which the stockholders may approve
the dissolution of Be pursuant to the Plan if the Meeting is adjourned to a
later date (the "Adoption Date").
2. Pursuant to the terms of that certain Asset Purchase Agreement dated as of
August 16, 2001, as amended, among Be, Palm, Inc. ("Palm") and ECA Subsidiary
Acquisition Corporation, an indirect wholly owned subsidiary of Palm (the
"Purchase Agreement"), Be will be retaining certain rights, assets and
liabilities in connection with the sale of assets pursuant to the Purchase
Agreement, including its cash and cash equivalents, receivables, certain
contractual rights, and rights to assert and bring certain claims and causes of
action, including under antitrust laws. If, notwithstanding the approval of the
dissolution pursuant to his Plan by the stockholders of Be, the Board of
Directors determines that it would be in the best interests of Be's stockholders
or creditors for Be not to dissolve, including in order to permit Be to pursue
(or more easily pursue) and retained claims or causes of action, the dissolution
of Be pursuant to this Plan may be abandoned or delayed until a future date to
be determined by B oard of Directors.
3. From and after the Adoption Date, contingent upon the consummation of the
transactions contemplated by the Purchase Agreement, and subject to the
discretionary right of the Board of Directors to abandon or delay implementation
of this Plan as described in Section 2 above, Be shall complete the following
corporate actions:
(a) Be shall determine whether and when to (i) transfer Be's remaining
property and assets to a liquidating trust (established pursuant to Section 6
hereof), or (ii) collect, sell, exchange or otherwise dispose of all of its
property and assets in one or more transactions upon such terms and
conditions as the Board of Directors, in its absolute discretion, deems
expedient and in the best interests of Be and the stockholders and creditors
of Be, without any further vote or action by Be's stockholders. It is
understood that Be will be permitted to commence the sale and disposition of
its assets as soon as possible following the adoption of this Plan by the
Board of Directors and approve of the dissolution of Be pursuant to this Plan
by the stockholders of Be in order to attain the highest value for such
assets and maximize value for its stockholders and creditors. Be's assets and
properties may be sold in bulk to one buyer or a small number of buyers or on
a piecemeal basis to numerous buyers. Be will not be required to obtain
appraisals or other third party opinions as to the value of its properties
and assets in connection with the liquidation. In connection with such
collection, sale, exchange and other disposition, Be shall use commercially
reasonable collect or make provision for the collection of all accounts
receivable, debts and claims owing to Be.
(b) Be shall pay or, as determined by the Board of Directors, make
reasonable provision to pay, all claims, liabilities and obligations of Be,
including all unascertained, contingent, conditional or unmatured claims
known to Be and all claims which are known to Be but for which the identity
of the claimant is unknown.
(c) Subject to the approval of any such distribution by the Board of
Directors, Be shall distribute pro rata to its stockholders available cash,
including the cash proceeds of any sale, exchange or disposition,
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except such cash, property or assets as are required for paying or making
reasonable provision for the liabilities and obligations of Be. Such
distribution may occur all at once or in a series of distributions and shall
be in cash or assets, in such amounts, and at such time or times, as the
Board of Directors or the Trustees (as defined in Section 6 hereof), in their
absolute discretion, may determine. If and to the extent deemed necessary,
appropriate or desirable by the Board of Directors or the Trustees, in their
absolute discretion, Be may establish and set aside a reasonable amount of
cash and/or property (the "Contingency Reserve") to satisfy claims against
and unmatured or contingent liabilities and obligation of Be, including,
without limitation, tax obligations, and all expenses of the sale of Be's
property and assets, of the collection and defense of Be's property and
assets, and the liquidation and dissolution provided for in this Plan.
4. Any distributions to the stockholders of Be pursuant to Section 3 and 6
hereof shall be in complete redemption and cancellation of all of the
outstanding Common Stock of Be. As a condition to receipt of any distribution to
Be's stockholders, the Board of Directors or the Trustees, in their absolute
discretion, may require the stockholders to (i) surrender their certificates
evidencing the Common Stock to Be or its agents for recording of such
distributions thereon or (ii) furnish Be with evidence satisfactory to the Board
of Directors or the Trustees of the loss, theft or destruction of their
certificates evidencing the Common Stock, together with such surety bond or
other security or indemnity as may be required by and satisfactory to the Board
of Directors or the Trustees. As a condition to receipt of any final
distribution to Be's stockholders, the Board of Directors or the Trustees, in
their absolute discretion, may require the stockholders to (i) surrender their
certificates evidencing the Common Stock to Be or its agent for cancellation or
(ii) furnish Be with such security or indemnity. The Company will finally close
its stock transfer books and discontinue recording transfers of Common Stock on
the earliest to occur of (i) the close of business on the record date fixed by
the Board of Directors for the final liquidating distribution, (ii) the close of
business on the date on which the remaining assets of Be are transferred to the
Trust or (iii) such other date on which the Board of Directors, in accordance
with applicable law, determines and close such stock transfer books, and
thereafter certificates representing Common Stock will not be assignable or
transferable on the books of Be except by will, intestate succession, or
operation of law.
5. If any distribution to a stockholder cannot be made, whether because the
stockholder cannot be located, has not surrendered its certificates evidencing
the Common Stock as required hereunder or for any other reason, the distribution
to which such stockholder is entitled (unless transferred to the Trust
established pursuant to Section 6 hereof) shall be transferred, at such time as
the final liquidating distribution is made by Be, to the official of such state
or other jurisdiction authorized by applicable law to receive the proceeds of
such distribution. The proceeds of such distribution shall thereafter be held
solely for the benefit of and for ultimate distribution to such stockholder as
the sole equitable owner thereof and shall be treated as abandoned property and
escheat to the applicable state or other jurisdiction in accordance with
applicable law. In no event shall the proceeds of any such distribution revert
to or become the property of Be.
6. If deemed necessary, appropriate or desirable by the Board of Directors,
in its absolute discretion, in furtherance of the liquidation and distribution
of Be's assets to the stockholders, as a final liquidating distribution or from
time to time, Be shall transfer to one or more liquidating trustees (the
"Trustees"), for the benefit of its stockholders and/or creditors, under one or
more liquidating trusts (each a "Trust" and collectively the "Trusts"), any
assets of Be which are (i) not reasonably susceptible to distribution to the
stockholders, including without limitation non-cash assets and assets held on
behalf of the stockholders (a) who cannot be located or who do not tender their
certificates evidencing the Common Stock to Be or its agent as herein above
required or (b) to whom distributions may not be made based upon restrictions
under contract or law, including, without limitation, restrictions of the
federal securities laws and regulations promulgated thereunder, or (ii) held as
the Contingen cy Reserve. The Board of Directors is hereby authorized to appoint
one or more individuals, corporations, partnerships or other persons, or any
combination thereof, including, without limitation, any one or more officers,
directors, employees, agents or representatives of Be, to act as the initial
Trustee or Trustees for the benefit of the stockholders and to receive any
assets of Be. Any Trustees appointed as provided in the preceding sentence shall
succeed to all right, title and interest of Be of any kind and character with
respect to such transferred assets and, to the extent of the assets so
transferred and solely in their capacity as Trustees, shall assume all of the
liabilities
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and obligations of Be, including, without limitation, any unsatisfied claims and
unascertained or contingent liabilities. Further, any conveyance of assets to
the Trustees shall be deemed to be a distribution of property and assets by Be
to the stockholders for the purposes of Section 3 of this Plan. Any such
conveyance to the Trustees shall be in trust for the creditors and the
stockholders of Be. Be, subject to this Section and as authorized by the Board
of Directors, in its absolute discretion, may enter into one or more liquidating
trust agreements with the Trustees, on such terms and conditions as the Board of
Directors, in its absolute discretion, may deem necessary, appropriate or
desirable. Approval of the dissolution of Be pursuant to this Plan by the
holders of a majority of the outstanding Common Stock shall constitute the
approval of the stockholders of any such appointment, any such liquidating trust
agreement and any transfer of assets by Be to the Trust, or Trusts, as their act
and as a part h ereof as if herein written.
7. After the Adoption Date, but subject to Section 2 above, the officers of
Be shall, at such time as the Board of Directors, in its absolute discretion,
deems necessary, appropriate or desirable, obtain any certificates required from
the Delaware tax authorities and, upon obtaining such certificates, Be shall
file with the Secretary of State of the State of Delaware a certificate of
dissolution in accordance with the Delaware General Corporation Law. After the
filing of the Certificate of Dissolution, Be shall not engage in any business
activities except to the extent necessary to preserve the value of its assets,
wind-up its business affairs and distribute its assets in accordance with this
Plan.
8. Approval of the dissolution of Be pursuant to this Plan by holders of a
majority of the outstanding Common Stock shall constitute the approval of the
stockholders of the sale, exchange or other disposition in liquidation of all of
the property and assets of Be, whether such sale, exchange or other disposition
occurs in one transaction or a series of transactions, and shall constitute
ratification of all contracts for sale, exchange or other disposition which are
conditioned on approval of this Plan.
9. In connection with and for the purposes of implementing and assuring
completion of this Plan, Be may, in the absolute discretion of the Board of
Directors, pay any brokerage, agency, professional and other fees and expenses
of persons rendering services to Be in connection with the collection, sale,
exchange or other disposition of Be's property and assets and the implementation
of this Plan.
10. In connection with and for the purpose of implementing and assuring
completion of this Plan, Be may, in the absolute discretion of the Board of
Directors, pay Be's officers, directors, employees, agents and representatives,
or any of them, compensation or additional compensation above their regular
compensation, in money or other property, as severance, bonus, acceleration of
vesting of stock or stock options, or in any other form, in recognition of the
extraordinary efforts they, or any of them, will be required to undertake, or
actually undertake, in connection with the implementation of this Plan. Approval
of the dissolution of Be pursuant to this Plan by holders of a majority of the
outstanding Common Stock shall constitute the approval of Be's stockholders of
the payment of any such compensation.
11. Be shall continue to indemnify its officers, directors, employees, agents
and representatives in accordance with its certificate of incorporation, as
amended, and by-laws and any contractual arrangements, for the actions taken in
connection with this Plan and the winding-up of the affairs of Be. Be's
obligation to indemnify such persons may also be satisfied out of the assets of
any Trust. The Board of Directors and the Trustees, in their absolute
discretion, are authorized to obtain and maintain insurance as may be necessary
or appropriate to cover Be's obligation hereunder, including seeking an
extension in time and coverage of Be's insurance policies currently in effect.
12. Notwithstanding approval of or consent to this Plan and the transactions
contemplated hereby by Be's stockholders, the Board of Directors may modify,
amend or abandon this Plan and the transactions contemplated hereby without
further action by the stockholders to the extent permitted by the Delaware
General Corporation Law.
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13. The Board of Directors of Be is hereby authorized, without further action
by Be's stockholders, to do and perform or cause the officers of Be, subject to
approval of the Board of Directors, to do and perform, any and all acts, and to
make, execute, deliver or adopt any and all agreements, resolutions,
conveyances, certificates and other documents of every kind which are deemed
necessary, appropriate or desirable, in the absolute discretion of the Board of
Directors, to implement this Plan and the transaction contemplated hereby,
including, without limiting the foregoing, all filings or acts required by any
state or federal law or regulation to wind-up its affairs.
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