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EXHIBIT 2.1 (c)
CUSTODIAN AGREEMENT
THIS CUSTODIAN AGREEMENT is made as of February 13, 1998 (the
"Closing Date"), by and among Manugistics Nova Scotia Company, a Nova Scotia
unlimited company ("Buyer"), Xxxxxx Xxx and Xxxxxxxxxxx Xxxx, or either of them
acting alone ("Paying Agent"), and State Street Bank and Trust Company
("Custodian") on behalf of the Sellers (as defined below).
BACKGROUND:
A. Pursuant to a certain Stock Purchase Agreement dated as of
the date hereof by and among Insight Venture Partners I, L.P., Wexford Insight
Canada, L.P., Arca Investments Inc., Capital d'Amerique CDPQ Inc., CBC Pension
Board of Trustees, Gee & Co., The Canada Trust Company a/c 000-000000-0, XxXxxx
University Pension Fund, Royal Trust Corporation of Canada in Trust for Account
No. 083166009, Royal Trust Corporation of Canada in Trust for Account No.
029361001, Association de bienfaisance et de retraite des policiers de la
Communaute urbaine de Montreal, Ontario Hydro in Trust for the Pension Fund, Sun
Life Assurance Company of Canada, The Canada Trust Company Account No. 055-
180251-6, Altacap Investors Inc., Xxxxx Xxxxx, Xxxxxx Xxxxx, Xxx Xxxxx, Xxxxxx
Xxxxx, The Xxxxx Family Trust, Xxx XxXxxxxx, Xxxxx XxXxxxxx, Xxxxx Xxxxxxx,
Xxxxx Xxxxxxx, Xxxxx Xxxxxx, Xxxxxxx Xxxxxx, Laurentian Bank of Canada ITF
Xxxxxxx X. Xxxxxxx, RBC Dominion Securities ITF Xxx XxXxxxxx, RBC Dominion
Securities ITF Xxxxxx Xxxxx, RBC Dominion Securities ITF Xxxxx Xxxxxx, Xxxxx
Xxxx, Xxxx Xxxx, Xxxxxx Xxxxxxxx, Xxxxx and Xxxx Xxxx in Trust for Xxxxxxx Xxxx,
Xxxxx and Xxxx Xxxx in Trust for Xxxxxxx Xxxx, Xxxx Xxxxx, Xxxxx Xxxxxx, Xxxxxx
Xxxxxxxx, Xxxxx Xxxxxx, Xxxxx Xxxxxx, Xxxxxx Xxxxxxx, Xxxxxx Xxxxxxxx, Xxx Xxxx,
Xxxxx Xxxxxxxxx, Xxxxxx Xxxxxxxx, Xxxx Xxxxx, Xxxx Xxxxxxxxxx, Xxxxxx
XxXxxxxxxx, Xxxxxx Xxxx, Xxxxxxx Xxxxxxxxx, Xxxx Xxxxx, Xxxxxxx Xxxxx, Xxx Xxxx,
Xxxxxx Xxxxxx, Xxx Xxxxxx, Xxxxxx XxxXxxxxx, Xxxxx XxXxxxx, Xxxx XxXxxxx, Xxx
XxXxxxxx, Xxxxx Xxxxx, Xxxxxx Removic, Xxxx Xxxxx, Xxxxxx Xxxxx, Xxxx Xxxxx,
Xxxxxxxx Saint-Laurent, Xxxxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxx Xxxxxx, Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxx, Xxxxxxx Xxxxxx, Xxxx van Galder, Xxxxx Xxxxxxx, Xxxxxxx
Xxxxx, Xxx Xxxx, Xxxx Xxxxxxxx, Xxxxx Xxxxxx, Xxxxxx Xxxxx, RBC Dominion
Securities ITF Xxxxx XxXxxxx, Xxxxx Xxxxxx XXX c/f Xxxxxx XxXxxxxxxx, Xxx Xxxxx,
Xxxxx Xxxxxxx, Xxxxx Xxxxxx, Xxx Xxxxxxx, Xxxx Xxxxxxx, Xxxxx Xxxxxxxxx, Xxxx
Xxxxxx, Xxxx Xxxxxx, Xxx Xxxxxx, Xxxxx Xxxxxxx, Xxxxx Xxxxxxxxx, Xxxx Xxxx,
Xxxxx Xxxxxxxx, Xxxx Xxxxxxxx, Xxxxx Xxxxx and Hie Xxxx Xxxx (collectively, the
"Sellers"), Buyer, ProMIRA Software Incorporated ("Company") and Paying Agent,
including the Exhibits thereto (the "Stock Purchase Agreement"), Custodian is
required to hold certain shares of the common stock of Manugistics Group, Inc.,
a Delaware corporation ("Manugistics Group"), par value $.002 per share (the
"Common Stock"), deposited with Custodian by Buyer upon execution hereof to be
held by Custodian subject to the terms and conditions set forth herein.
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B. Pursuant to the terms of the Stock Purchase Agreement, the
Sellers have appointed Paying Agent to act as their agent and attorney-in-fact
and representative in accordance with the terms of this Custodian Agreement.
NOW, THEREFORE, in consideration of the foregoing background and of
the mutual covenants set forth herein and in the Stock Purchase Agreement, the
parties hereto, intending to be legally bound, hereby agree as follows:
1. APPOINTMENT OF CUSTODIAN. Buyer does hereby appoint and
designate, with the consent of Paying Agent, State Street Bank and Trust Company
as Custodian for the purposes set forth herein, and Custodian does hereby accept
such appointment under the terms and conditions set forth herein.
2. DEPOSITS WITH CUSTODIAN.
(a) GROUP 1 CUSTODIAN SHARES. Pursuant to the terms
of Section 3.2(b)(ii)(B)(1) of the Stock Purchase Agreement, Buyer has
instructed Boston EquiServe Limited Partnership (the "Transfer Agent") to
register 432,065 shares of the Common Stock (the "Group 1 Custodian Shares") in
the name of Custodian. Custodian's right, title and interest in and to the Group
1 Custodian Shares is subject to the terms and conditions hereof and exists for
the exclusive benefit of Paying Agent, as agent and attorney-in-fact and
representative for those of the Sellers entitled thereto, and their respective
successors and assigns. Immediately upon registration of the Group 1 Custodian
Shares in the name of Custodian, Buyer shall have no further liability to the
Sellers or Paying Agent with respect thereto.
(b) GROUP 2 FORFEITABLE CUSTODIAN SHARES. Pursuant
to Section 3.2(b)(ii)(B)(2) of the Stock Purchase Agreement, Buyer has
instructed the Transfer Agent to register 16,047 shares of the Common Stock (the
"Group 2 Forfeitable Custodian Shares") in the name of Custodian. Custodian's
right, title and interest in and to the Group 2 Forfeitable Custodian Shares is
subject to the terms and conditions hereof and exists for the exclusive benefit
of Buyer (with respect to Sections 3.3(b)(iii)(A) and 3.3(b)(vi) and 6.12 of the
Stock Purchase Agreement), Paying Agent, as agent and attorney-in-fact and
representative for those of the Sellers entitled thereto, and their respective
successors and assigns. Immediately upon registration of the Group 2 Forfeitable
Custodian Shares in the name of Custodian, Buyer shall have no further liability
to the Sellers or the Paying Agent with respect to the delivery thereof.
(c) GROUP 3 FORFEITABLE CUSTODIAN SHARES. Pursuant
to Section 3.2(b)(ii)(B)(3) of the Stock Purchase Agreement, Buyer has
instructed the Transfer Agent to register 36,440 shares of the Common Stock (the
"Group 3 Forfeitable Custodian Shares") in the name of Custodian. Custodian's
right, title and interest in
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and to the Group 3 Forfeitable Custodian Shares is subject to the terms and
conditions hereof and exists for the exclusive benefit of Buyer (with respect to
Sections 3.3(b)(iv) and 3.3(b)(vi) of the Stock Purchase Agreement), Buyer (with
respect to Section 6.12 of the Stock Purchase Agreement), Paying Agent, as agent
and attorney-in-fact and representative for those of the Sellers entitled
thereto, and their respective successors and assigns. Immediately upon
registration of the Group 3 Forfeitable Custodian Shares in the name of
Custodian, Buyer shall have no further liability to the Sellers or the Paying
Agent with respect to the delivery thereof.
3. INVESTMENT OF DIVIDENDS.
(a) During the term of this Custodian Agreement,
Custodian shall deposit all cash dividends and other monetary amounts payable
after the date hereof with respect to the Group 1 Custodian Shares, the Group 2
Forfeitable Custodian Shares and/or the Group 3 Forfeitable Custodian Shares, if
any, in an insured money market account with Custodian, or in such other
accounts or investments as Buyer and Paying Agent may from time to time
designate by joint written notice of such parties to Custodian. Any and all
stock dividends and distributions payable with respect to the Group 1 Custodian
Shares, the Group 2 Forfeitable Custodian Shares and/or the Group 3 Forfeitable
Custodian Shares shall be held in the name of Custodian in accordance with the
terms of this Custodian Agreement, which dividends and distributions shall be
included in the definition of the terms "Group 1 Custodian Shares," "Group 2
Forfeitable Custodian Shares" and "Group 3 Forfeitable Custodian Shares," as
applicable, as such terms are used in this Agreement.
(b) Custodian shall have the right to liquidate any
investments in which such cash dividends and other monetary amounts payable with
respect to the Group 1 Custodian Shares, the Group 2 Forfeitable Custodian
Shares and the Group 3 Forfeitable Custodian Shares are held in order to provide
funds necessary to make required payments under this Custodian Agreement.
Custodian shall not be liable for any loss upon such liquidation which is due to
fluctuations in the market rates applicable to investments of any such monetary
amounts or penalties incurred because of early redemption.
4. DISPOSITIONS BY CUSTODIAN.
(a) The Custodian shall, by written instructions
substantially in the form attached hereto as EXHIBIT II, direct the Transfer
Agent to register twenty-five percent (25%) of the Group 1 Custodian Shares in
the name of Paying Agent on each of the following dates (each a "Disbursement
Date"):
(i) within three (3) business days after the
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date that is ninety (90) days after the first anniversary of the Closing Date;
(ii) within three (3) business days after the
date that is one hundred-eighty (180) days after the first anniversary of the
Closing Date;
(iii) within three (3) business days after the
date that is two hundred-seventy (270) days after the first anniversary of the
Closing Date; and
(iv) within three (3) business days after the
date that is three hundred-sixty (360) days after the first anniversary of the
Closing Date.
(b) Except as otherwise provided in this Section
4(b), the Custodian shall, by written instructions, substantially in the form
attached hereto as EXHIBIT III, direct the Transfer Agent to register the Group
2 Forfeitable Custodian Shares in the name of Paying Agent in accordance with
the same disbursement schedule applicable to the Group 1 Custodian Shares set
forth in Section 4(a) hereof.
(i) Notwithstanding anything to the contrary
contained in this Section 4(b), upon written notice at any time after the date
hereof from Buyer to do so stating that any Group 2 Employee entitled to Group 2
Forfeitable Custodian Shares shall have been subject of an Employment
Termination (as provided in Section 3.3(b)(iii)(A) of the Stock Purchase
Agreement, the Custodian shall, within three (3) business days of receipt of
such notice from Buyer, by written instructions, substantially in the form
attached hereto as EXHIBIT IV, direct the Transfer Agent to register in the name
of Buyer or its designee that number of the Group 2 Forfeitable Custodian Shares
otherwise distributable to Paying Agent for such Group 2 Employee and shall
provide a copy of such instructions to Paying Agent.
(ii) Notwithstanding anything to the contrary
contained in this Section 4(b), Buyer may at any time, at its sole discretion,
by written notice, direct the Custodian to accelerate the disbursement schedule
of any or all of the Group 2 Forfeitable Custodian Shares. Within three (3)
business days after receipt of such written notice, Custodian shall, by written
instructions, substantially in the form attached hereto as EXHIBIT V, direct the
Transfer Agent to register in the name of Paying Agent the number of Group 2
Forfeitable Custodian Shares, which are subject of such written notice from
Buyer, and shall provide a copy of such instructions to Paying Agent.
(c) Except as otherwise provided in this Section
3(c), the Custodian shall, by written instructions, substantially in the form
attached hereto as EXHIBIT VI, direct the Transfer
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Agent, to register the Group 3 Forfeitable Custodian Shares in the name of
Paying Agent within three (3) business days after the first anniversary of the
Closing Date. Notwithstanding the foregoing, within three (3) business days
after receipt of written notice from Buyer at any time after the date hereof
that any Seller entitled to any of the Group 3 Forfeitable Custodian Shares
shall have been subject of an Employment Termination (as provided in Section
3.3(b)(iv) of the Stock Purchase Agreement), the Custodian shall, by written
instructions, substantially in the form attached hereto as EXHIBIT VII, direct
the Transfer Agent to register in the name of Buyer or its designee that number
of the Group 3 Forfeitable Custodian Shares otherwise distributable to the
Paying Agent for such Seller and shall provide a copy of such instructions to
Paying Agent.
(d) Notwithstanding anything to the contrary
contained in this Section 4, Buyer may, upon receipt of the written request of
any Seller entitled to any of the Group 2 Forfeitable Custodian Shares or the
Group 3 Forfeitable Custodian Shares, at Buyer's sole discretion, direct the
Custodian to accelerate the disbursement schedule of any or all of the Group 2
Forfeitable Custodian Shares or the Group 3 Forfeitable Custodian Shares
allocated to such Seller to Paying Agent for disbursement to such Seller;
provided, however, such written request shall include a certification by such
Seller that the accelerated disbursement of those Group 2 Forfeitable Custodian
Shares or the Group 3 Forfeitable Custodian Shares subject of such notice is
necessary in order to enable such Seller to satisfy his liability for all
federal income taxes owing by such Seller and arising solely by virtue of the
issuance of the Manugistics Group Shares allocated to such Seller pursuant to
the Stock Purchase Agreement, which certification shall include the calculation
of such federal income taxes. Within three (3) business days after receipt of
such written request, Custodian shall, by written instructions, substantially in
the form attached hereto as EXHIBIT VIII, direct the Transfer Agent to register
in the name of the Paying Agent the number of Group 2 Forfeitable Custodian
Shares and/or Group 3 Forfeitable Custodian Shares, which are subject to such
written request from Buyer, and shall provide a copy of such instructions to
Paying Agent.
(e) Notwithstanding anything to the contrary
contained in this Section 4, Buyer may, in its sole discretion, direct the
Custodian to accelerate the disbursement schedule of any or all of the Group 2
Forfeitable Custodian Shares or the Group 3 Forfeitable Custodian Shares
allocated to any Seller for the benefit of Buyer and/or its affiliates in order
to satisfy the withholding tax obligations of Buyer and/or its affiliates with
respect to such Seller under Section 116 of the Income Tax Act (Canada), as
provided in Section 6.12(f) of the Stock Purchase Agreement, and all state,
local, FICA, medicare tax and withholding obligations of Buyer and/or its
affiliates arising in
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connection with the disbursement of any Manugistics Group Shares to the Paying
Agent for the benefit of such Seller, as provided in Section 3.3(b)(vi) of the
Stock Purchase Agreement. Within three (3) business days after receipt of such
written request, Custodian shall, by written instructions, substantially in the
form attached hereto as EXHIBIT IX, direct the Transfer Agent to register in the
name of Paying Agent the number of Group 2 Forfeitable Custodian Shares or Group
3 Forfeitable Custodian Shares, which are subject to such written request from
Buyer, and shall provide a copy of such instructions to Paying Agent; whereupon,
the Paying Agent shall, by written instructions, as provided in the Paying Agent
Agreement, direct the Transfer Agent to register in the name of Buyer and/or its
affiliates such Group 2 Forfeitable Custodian Shares or such Group 3 Forfeitable
Custodian Shares or such Group 3 Forfeitable Custodian Shares.
(f) The Custodian shall provide a copy of its
instructions to the Transfer Agent referred to in this Section 4, to Paying
Agent and Buyer. Buyer shall provide a copy of all notices sent to Custodian
pursuant to this Section 4 to Paying Agent.
(g) Notwithstanding anything to the contrary
continued herein, the parties hereto agree that the Custodian shall, upon
receipt of the written direction of the Paying Agent, direct the Transfer Agent
to register all of the Group 1 Custodian Shares, the Group 2 Forfeitable
Custodian Shares and the Group 3 Forfeitable Custodian Shares (collectively, the
"Custodial Securities") in the name of the Paying Agent for the purpose of
tendering such Custodial Securities in response to a Permitted Tender Offer (as
hereinafter defined), provided that the Custodian receives from the offeror (the
"Offeror") under the Permitted Tender Offer either before or concurrently with
the registration of the Custodial Securities in the name of the Paying Agent a
certificate of an authorized signing officer of the Offeror to the effect that
the terms and conditions of the Permitted Tender Offer have been met or
satisfied and that the Offeror is irrevocably obligated to, and will, take up
and pay for all securities deposited under the Permitted Tender Offer; provided
however, for greater certainty, that if all the terms and conditions of the
Permitted Tender Offer are not met or satisfied or all the securities duly
deposited thereunder are not taken up and paid for, the Custodial Securities
shall not be taken up or paid for and shall be re-registered in the name of the
Custodian to be held subject to the terms and provisions of this Custodian
Agreement. For purposes of this Custodian Agreement, a "Permitted Tender Offer"
shall be deemed to have been made in circumstances where one or more persons or
companies (the "Offeror"), each being at arms's length to Manugistics Group
makes a bona fide tender offer or merger proposal to acquire all the shares of
common stock of Manugistics Group which is supported by the board of directors
of Manugistics Group or, if
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not supported by the board of directors of Manugistics Group, is accepted by the
holders of more than fifty percent (50%) of the shares of common stock of
Manugistics Group. In the event that any Custodial Securities are taken up by an
Offeror pursuant to a Permitted Tender Offer, such Custodial Securities shall be
deemed to have been released from the applicable custodial provisions of this
Custodian Agreement as of the date they are registered in the name of the Paying
Agent (the "Release Date"). Notwithstanding anything to the contrary contained
in this Section 4, all shares issued by an Offeror in exchange for the Custodial
Securities so registered in the name of Paying Agent shall be returned to
Custodian and shall immediately be registered in the name of the Escrow Agent
and shall be subject to all of the terms and conditions of this Custodian
Agreement, as if such shares were originally part of the Group 1 Custodian
Shares, the Group 2 Forfeitable Custodian Shares or the Group 3 Forfeitable
Custodian Shares, as the case may be. The Custodian shall give all written
instructions to the Transfer Agent that are reasonably necessary to give effect
to this Section 4(g).
5. VOTING RIGHTS. Pending registration of the Group 1
Custodian Shares, the Group 2 Forfeitable Custodian Shares and the Group 3
Forfeitable Custodian Shares in the name of Paying Agent in accordance with the
terms of this Custodian Agreement, the Sellers shall be entitled to vote any
such shares.
6. TERMINATION. Upon written notice by Custodian to register
the last remaining Group 1 Custodian Shares, Group 2 Forfeitable Custodian
Shares and Group 3 Forfeitable Custodian Shares in the name of Paying Agent,
Manugistics Group or Buyer, as the case may be, pursuant to Section 4 hereof,
this Custodian Agreement shall terminate, subject to the provisions of Sections
8, 10, 11 and 12 hereof, which Sections shall survive such termination.
7. DUTIES AND RESPONSIBILITIES OF CUSTODIAN.
(a) Buyer and Paying Agent acknowledge and agree that
Custodian (i) shall be obligated only for the performance of such duties as are
specifically set forth in this Custodian Agreement; (ii) shall not be obligated
to take any legal or other action hereunder which might in its judgment involve
any expense or liability unless it shall have been furnished with
indemnification reasonably acceptable to it ; (iii) may rely on and shall be
protected in acting or refraining from acting upon any written notice,
instruction (including, without limitation, wire transfer instructions, whether
incorporated herein or provided in a separate written instruction), instrument,
statement, request or document furnished to it hereunder and believed by it to
be genuine and to have been signed or presented by the proper person, and shall
have no responsibility for determining the accuracy thereof; and (iv) may
consult counsel
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satisfactory to it, including house counsel, and the advice or opinion of such
counsel shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted by it hereunder in good faith and in
accordance with the opinion of such counsel.
(b) The duties of Custodian hereunder are purely
ministerial in nature. Neither Custodian nor any of its directors, officers or
employees shall be liable to anyone for any action taken or omitted to be taken
by it or any of its directors, officers or employees hereunder except in the
case of gross negligence, bad faith, fraud or willful misconduct.
(c) Buyer and Paying Agent agree to assume any and
all obligations imposed now or hereafter by any applicable tax law with respect
to the disbursements of the Group 1 Custodian Shares, the Group 2 Forfeitable
Custodian Shares and the Group 3 Forfeitable Custodian Shares and other monies,
if any, pursuant to the terms hereof, and to indemnify and hold Custodian
harmless from and against any taxes, additions for late payment, interest,
penalties and other expenses that may be assessed against Custodian on any such
payment under this Custodian Agreement. Buyer and Paying Agent undertake to
instruct Custodian in writing with respect to Custodian's responsibility for
withholding and other taxes, assessments or other governmental charges,
certifications and governmental reporting in connection with its acting as
Custodian under this Custodian Agreement. Buyer and Paying Agent, jointly and
severally, agree to indemnify and hold Custodian harmless from any liability on
account of taxes, assessments or other governmental charges, including without
limitation the withholding or deduction or the failure to withhold or deduct
same, and any liability for failure to obtain proper certifications or to
properly report to governmental authorities, to which Custodian may be or become
subject in connection with or which arises out of this Custodian Agreement,
including costs and expenses (including reasonable legal fees and expenses),
interest and penalties. Notwithstanding the foregoing, no distributions of
monies will be made unless Custodian has on file an original, signed W-9 form or
its equivalent prior to distribution, including tax identification numbers, for
all distributees.
(c) The duties, responsibilities and authority of
Custodian hereunder shall continue after, and shall not be affected by, the
Closing under the Stock Purchase Agreement.
8. DISPUTE RESOLUTION. It is understood and agreed that should
any dispute arise with respect to the delivery, ownership, right of possession,
and/or disposition of the Group 1 Custodian Shares, the Group 2 Forfeitable
Custodian Shares and/or the Group 3 Forfeitable Custodian Shares (collectively,
the "Assets"), or should any claim be made upon any of the Assets by a third
party,
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Custodian, upon receipt of written notice of such dispute or claim by any of the
parties hereto or by a third party, is authorized and directed to retain in its
possession, without liability to anyone, any portion of such Assets which is
subject of such dispute until such dispute shall have been settled either by
the mutual agreement of the parties involved (as evidenced by appropriate
written instructions to Custodian signed by Buyer and Paying Agent) or by a
final order, decree or judgment of a court of competent jurisdiction, the time
for perfection of an appeal of such order, decree or judgment having expired.
Custodian may, but shall be under no duty whatsoever to, institute or defend any
legal proceedings which relate to the Assets.
9. RESIGNATION. Custodian may resign and be discharged from
its duties or obligations hereunder by giving thirty (30) days' written notice
to Buyer and Paying Agent. Such resignation shall take effect thirty (30) days
after the giving of such notice, or upon such later date as specified in such
notice, or upon receipt by Custodian of an instrument of acceptance executed by
a successor custodian and upon delivery by Custodian to such successor of all of
the Assets then in the custody, possession or control of the Custodian. Upon
receipt of such an instrument of acceptance, a successor custodian appointed by
Custodian shall become Custodian hereunder on the resignation date specified in
such notice. If a written instrument of acceptance by a successor custodian
shall not have been delivered to Buyer and Paying Agent prior to the effective
date of such resignation, Buyer, with the consent of Paying Agent, which consent
shall not be unreasonably withheld, may substitute a new custodian by giving
written notice thereof to Custodian and Paying Agent and paying all fees and
expenses of such successor. In addition, Buyer, with the consent of Paying
Agent, which consent shall not be unreasonably withheld, may, upon ten (10)
days' prior written notice to Custodian and Paying Agent, appoint a substitute
custodian to act as Custodian for all purposes at any time for any or no reason.
Custodian shall promptly transfer all of the Assets then in the custody,
possession or control of the Custodian to such successor custodian. Any
successor custodian appointed in accordance with this Section 9 shall thereafter
be Custodian for all purposes of this Custodian Agreement.
10. CUSTODIAN NOT PERSONALLY LIABLE. All of the parties hereto
expressly recognize that Custodian, acting in such capacity, shall not have any
personal liability with respect to matters, promises or agreements hereunder,
including, without limitation, under Section 7 hereof, or in any other fashion
under this Custodian Agreement; provided, however, that Custodian shall be
liable for his, her or its own gross negligence, willful misconduct and fraud.
11. COMPENSATION AND EXPENSES.
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(a) Subject to the terms of Section 11(b) hereof,
Buyer agrees to pay Custodian's reasonable compensation for its normal services
hereunder in accordance with the fee schedule attached hereto as EXHIBIT I,
including, without limitation, legal fees and expenses incurred in connection
with the preparation of this Custodian Agreement, which may be subject to change
on an annual basis.
(b) As between Buyer and Paying Agent, any fees or
expenses arising in connection with (i) any matters described in Section 8
hereof shall be borne entirely by the party who does not prevail in such matter
and (ii) any other mater involving a provision of this Custodian Agreement
(except as provided in Section 11(a) hereof) including, without limitation, the
expenses of Custodian shall be borne, jointly and severally by Buyer and Paying
Agent, fifty percent (50%) by Buyer and fifty percent (50%) by Paying Agent. The
Custodian shall be entitled to reimbursement on demand for all expenses incurred
hereunder which are in excess of its compensation for normal services hereunder,
including without limitation, payment of any legal fees and expenses incurred by
Custodian in connection with the resolution of any claim by any party hereunder.
12. INDEMNIFICATION. The Paying Agent and Buyer shall hold
Custodian harmless and indemnify Custodian against any loss, liability, expense
(including, attorneys' fees and expenses), claim or demand that may be incurred
by Custodian arising our of or in connection with the performance of its
obligations in accordance with the provisions of this Custodian Agreement
provided, however that Custodian shall be liable for his, her, or its gross
negligence, willful misconduct or fraud.
13. NOTICES. Any notice permitted or required hereunder shall
be deemed to have been duly given if delivered personally or if sent by
overnight courier, postage prepaid, to the parties at their address set forth
below:
If to Buyer:
c/o Manugistics, Inc.
Attention: General Counsel
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000-0000
with a copy to:
Xxxxxxxx Xxxxxx LLP
3200 The Mellon Bank Center
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esquire
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If to Paying Agent:
Xxxxxx Xxx/Xxxxxxxxxxx Xxxx
c/o Miralta Capital Inc.
000 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxxx X0X 0X0
Xxxxxx
with a copy to:
Fraser & Xxxxxx
000 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxx X0X 0X0
Xxxxxx
Attention: X.X. Xxxxxxx
If to Custodian:
State Street Bank and Trust Company
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Attention: Xxxx Xxxxxxx
Corporate Trust Department
If to the Transfer Agent:
Boston EquiServe Limited Partnership
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxx X. Xxxxx
Account Manager
or at such other address as any of the above may have furnished to the other
parties in writing, as aforesaid, and any such notice or communication given in
the manner specified in this Section 13 shall be deemed to have been given as of
the date so mailed.
14. SEVERABILITY. If any term, provision, covenant or
restriction of this Custodian Agreement is held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Escrow Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated.
15. SUCCESSORS AND ASSIGNS; ASSIGNMENT. This Custodian
Agreement shall be binding upon and shall inure to the benefit of
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and be enforceable by the heirs, executors, administrators, personal
representatives, successors and assigns of the parties hereto; provided,
however, that no party hereto shall assign this Custodian Agreement without
first obtaining the prior written consent of the others and giving written
notice thereof to Custodian.
16. MODIFICATIONS. This Custodian Agreement may not be altered
or modified without the express written consent of all parties hereto. No course
of conduct shall constitute a waiver of any of the terms and conditions of this
Custodian Agreement, unless such waiver is specified in writing, and then only
to the extent so specified. A waiver of any of the terms and conditions of this
Custodian Agreement on one occasion shall not constitute a waiver of the other
terms of this Custodian Agreement, or of such terms and conditions on any other
occasion.
17. GOVERNING LAW. This Custodian Agreement shall be governed
by and construed under the laws of the Commonwealth of Massachusetts.
18. CONSENT TO JURISDICTION AND SERVICE. The parties hereby
absolutely and irrevocably consent and submit to the jurisdiction of the courts
of the Commonwealth of Massachusetts and of any Federal court located in said
State in connection with any actions or proceedings brought by any party hereto
and arising out of or relating to this Custodian Agreement. In any such action
or proceeding, the parties hereto absolutely and irrevocably waive personal
service of any summons, complaint, declaration or other process and hereby
absolutely and irrevocably agree that the service thereof may be made by
certified or registered first-class mail directed to such party at their
respective addresses in accordance with Section 13 hereof.
19. FORCE MAJEURE. No party hereto shall be responsible for
delays or failures in performance resulting from acts beyond its control. Such
acts shall include, without limitation, acts of God, strikes, lockouts, riots,
acts of war, epidemics, governmental regulations superimposed after the fact,
fire, communication line failures, computer viruses, power failures, earthquakes
or other disasters.
20. REPRODUCTION OF DOCUMENTS. This Custodian Agreement and all
documents relating hereto, including, without limitation, (a) consents, waiver
and modifications which may hereafter be executed, and (b) certificates and
other information previously or hereafter furnished, may be reproduced by any
photographic, photostatic, microfilm, optical disk, micro-card, miniature
photographic or other similar process. The parties agree that any such
reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding, whether or
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not the original is in existence and whether or not such reproduction was made
by a party in the regular course of business, and that any enlargement,
facsimile or further reproduction of such reproduction shall likewise be
admissible in evidence.
21. HEADINGS. The section headings herein are for convenience
only and shall not affect the construction thereof.
22. BUSINESS DAY. For purposes of this Custodian Agreement, the
term "business day" shall mean any day during the year on which banks are not
authorized to be closed in the States of Delaware and Massachusetts, United
States of America or in the Provinces of Xxxx Xxxxxx xxx Xxxxxxx, Xxxxxx.
23. PREPARATION OF THE AGREEMENT. The parties acknowledge that
they have requested and are satisfied that this Agreement be drawn up in
English. Les parties reconnaissent qu'elles ont exige que la presente convention
soit redigee en anglais et s'en declarent satisfaites.
24. COUNTERPARTS. This Custodian Agreement may be executed in
several counterparts, including, without limitation, execution by facsimile,
each of which shall be an original, but all of which together shall constitute
one and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Custodian
Agreement to be executed as of the day and year first above written.
Attest: MANUGISTICS NOVA SCOTIA COMPANY
BY:
-------------------------- ---------------------------------
Title: Title:
Attest: STATE STREET BANK AND TRUST COMPANY
BY:
-------------------------- ---------------------------------
Title: Title:
------------------------------------
XXXXXX XXX, Paying Agent
------------------------------------
XXXXXXXXXXX XXXX, Paying Agent
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EXHIBIT I
State Street Bank and Trust Company
Fee Schedule
ACCEPTANCE FEE: Waived
ADMINISTRATIVE FEE: $3,500.00 per year or part
thereof
INVESTMENT FEE: $65.00 per buy/sell
(direct investments in
Treasuries, C/D's CP, Repo's, etc.)
SWEEP FEE: 40 Basis Points per annum
(SSgA or selected other Money of the average daily net
Market Funds) assets
WIRE TRANSFER FEE (outgoing): $ 20.00 (domestic)
$ 35.00 (international)
OUT-OF-POCKET EXPENSES At Cost
LEGAL FEES (Peabody & Xxxxxx): At Cost
