Exhibit 2.12
Contribution Agreement
This Contribution Agreement (this "Agreement") is entered into as of
_______, _______ between Aprisma Management Technologies, Inc., a Delaware
corporation ("Aprisma Inc."), and Aprisma Management Technologies LLC, a
Delaware limited liability company ("Aprisma LLC").
RECITALS
WHEREAS Aprisma Inc. has formed Aprisma LLC for the purpose of reorganizing
its corporate structure and is the sole member of Aprisma LLC;
WHEREAS Aprisma Inc. wishes to contribute its operating assets to Aprisma
LLC on the terms set forth below; and
WHEREAS, in exchange for the contribution by Aprisma Inc. of its operating
assets, Aprisma LLC wishes to assume the operating liabilities of Aprisma Inc.
on the terms set forth below;
NOW, THEREFORE, in consideration of the foregoing and the covenants and
agreements set forth below, and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, Aprisma Inc. and Aprisma
LLC hereby agree as follows:
1. Transfer of Assets and Assumption of Liabilities. Subject to the terms and
conditions herein set forth:
1.1. Transfer of Assets. Aprisma Inc. hereby grants, transfers, conveys,
assigns and delivers to Aprisma LLC and its successors and assigns,
forever, all of its rights, title and interest in and to the Assets
(as defined below) effective as of the date hereof. The "Assets" shall
mean all properties, rights and assets, tangible and intangible, of
Aprisma Inc.; provided, however, that the "Assets" shall not include
those properties, rights and assets listed on Schedule A.
1.1.1 No Warranties. The Assets transferred hereby are transferred on
an "AS IS" basis, without any representations or warranties
whatsoever. Without limiting the generality of the foregoing, APRISMA
INC. DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS OR WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED
WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND FITNESS FOR
A PARTICULAR PURPOSE.
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1.2. Assumption of Liabilities. Aprisma Inc. hereby assigns, transfers and
conveys to Aprisma LLC, and in consideration for the transfer of
Assets described above, Aprisma LLC hereby assumes and agrees to be
responsible for and agrees to pay or perform or to cause to be paid or
performed, and otherwise to discharge or cause to be discharged, all
of the Liabilities (as defined below) of Aprisma Inc. other than those
Liabilities listed on Schedule B. "Liabilities" shall mean all debts,
liabilities or obligations, whether known or unknown, whether asserted
or unasserted, whether absolute or contingent, whether accrued or
unaccrued, whether liquidated or unliquidated, whether incurred
directly or consequential and whether due or to become due, including
without limitation any liabilities arising out of applicable
statutory, regulatory or common law, any contractual obligations and
any obligations arising out of tort.
1.3. Further Assurances. In furtherance of the assignment, transfer and
conveyance of the Assets and the assumption of the Liabilities set
forth herein, Aprisma Inc. shall execute and deliver such bills of
sale, stock powers, certificates of title, assignments of contracts
and intellectual property rights and other instruments of transfer,
conveyance and assignment as and to the extent necessary to evidence
the transfer, conveyance and assignment of all the Assets to Aprisma
LLC and Aprisma LLC shall execute and deliver to Aprisma Inc such
assumptions of contracts and other instruments of assumption as and to
the extent necessary to evidence the valid and effective assumption of
the Liabilities by Aprisma LLC.
1.4. Inability to Assign Assets and Liabilities.
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1.1.1 Transfer Impediments. If and to the extent that the valid,
complete and perfected transfer to Aprisma LLC of any Asset would be a
violation of applicable laws or agreements or require any consent or
governmental approval (a "Transfer Impediment"), unless the parties
shall otherwise determine, the transfer or assignment to Aprisma LLC
of such Asset shall be automatically deemed deferred and any such
purported transfer shall be null and void until such time as all
relevant Transfer Impediments are removed or obtained, as applicable.
2.1.1 Beneficial Ownership. If the transfer or assignment of any asset
intended to be transferred or assigned hereunder is not consummated on
the date hereof due to a Transfer Impediment or otherwise, then
Aprisma Inc. shall hold such Asset for the use and benefit, insofar as
reasonably possible and not in violation of a Transfer Impediment, and
shall take such other actions as may be reasonably requested by
Aprisma LLC in order to place Aprisma LLC, insofar as reasonably
possible and not in violation of a
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Transfer Impediment, in the same position as if such Asset had been
transferred as contemplated hereby and so that all the benefits and
burdens relating to such Asset, including possession, use, risk of
loss, potential for gain, and dominion, control and command over such
Asset, inure from and after the date hereof to Aprisma LLC. If and
when a Transfer Impediment which caused the deferral of a transfer of
any Asset is removed or obtained, as applicable, the transfer of the
applicable Asset shall be effected in accordance with the terms of
this Agreement.
3.1.1 Cooperation. The parties shall cooperate and use reasonable
efforts, without the requirement to make any payment or material
concession, to remove or obtain, as applicable, any Transfer
Impediment which prohibits the transfer or assignment of assets
hereunder.
4.1.1 Liabilities. If the assignment of a Liability to Aprisma LLC
hereunder is prohibited by a Transfer Impediment, Aprisma Inc. shall
continue to be bound by the relevant obligations and, unless not
permitted by law or the terms of the relevant obligation, Aprisma LLC
shall, as agent or subcontractor for Aprisma Inc., pay, perform and
discharge fully, or cause to be paid, transferred or discharged all
the obligations or other liabilities of Aprisma Inc. thereunder.
Aprisma Inc. shall, without further consideration, pay and remit, or
cause to be paid or remitted, to Aprisma LLC promptly all money,
rights and other consideration received by it in respect of such
performance. If and when such Transfer Impediment is removed or
obtained, as applicable, or such obligation shall otherwise become
assignable, the transfer of the applicable Liability shall be effected
in accordance with the terms of this Agreement. The parties shall
cooperate and use reasonable efforts, without the requirement to make
any payment or make a material concession, to remove or obtain, as
applicable, any Transfer Impediment, which prohibits the assignment of
any Liability hereunder.
1.5. Compliance with Bulk Sales Laws. The parties hereby waive compliance
with the bulk sales law and any other similar laws in any applicable
jurisdiction in respect of the transactions contemplated by this
Agreement, including, without limitation, any applicable state tax law
that may require notification of state taxing authorities and related
actions in respect of bulk sales of assets outside of the ordinary
course of business.
2. Miscellaneous.
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2.1. Entire Agreement. This Agreement and the other documents and
instruments delivered pursuant hereto constitute the entire agreement
among the parties hereto pertaining to the subject matter hereof and
supersede all prior or contemporaneous agreements, understandings,
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negotiations and discussions, whether oral or written, of the parties
with respect to such subject matter.
2.2. Amendment. The parties hereto may amend this Agreement only by a
written instrument executed by the parties hereto.
2.3. Severability. In the event that any provision hereof would, under
applicable law, be invalid or unenforceable in any respect, such
provision shall (to the extent permitted under applicable law) be
construed by modifying or limiting it so as to be valid and
enforceable to the maximum extent compatible with, and possible under,
applicable law. The provisions hereof are severable, and in the event
any provision hereof should be held invalid or unenforceable in any
respect, it shall not invalidate, render unenforceable or otherwise
affect any other provision hereof.
2.4. Successors and Assigns. All of the terms and provisions of this
Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective permitted transferees and assigns
(each of which transferees and assigns shall be deemed to be a party
hereto for all purposes hereof).
2.5. Interpretation. Section and subsection headings are not to be
considered part of this Agreement, are included solely for
convenience, are not intended to be full or accurate descriptions of
the content thereof and shall not affect the construction hereof. No
rule of strict construction shall apply to or be used against any
party hereto.
2.6. Third Party Beneficiaries. Nothing in this Agreement is intended or
shall be construed to entitle any person or entity other than the
parties and their respective transferees and assigns permitted hereby
to any claim, cause of action, remedy or right of any kind.
2.7. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of
which together shall constitute but one and the same instrument.
2.8. Governing Law. This Agreement shall be governed by and construed in
accordance with the domestic substantive laws of the State of
Delaware, without giving effect to any choice or conflict of law
provision or rule that would cause the application of the laws of any
other jurisdiction.
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2.9. Further Assurances. Each party agrees to take such further action and
execute, deliver and/or file such documents or instruments as are
necessary to carry out the terms and purposes of this Agreement.
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IN WITNESS WHEREOF, the undersigned have executed this instrument under
seal effective as of the date first written above.
APRISMA MANAGEMENT TECHNOLOGIES, INC.
By: _______________________
Name:
Title:
APRISMA MANAGEMENT TECHNOLOGIES LLC
By: _______________________
Name:
Title:
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Schedule A
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Excluded Assets
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[List of Excluded Assets]
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Schedule B
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Excluded Liabilities
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[List of Excluded Liabilities]
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