Exhibit 10.1
CONTRIBUTION AGREEMENT
by and among
xxxxxxxxxx.xxx inc.
INFORMATION MANAGEMENT ASSOCIATES, INC.
and
MARKETNET, L.L.C.
Dated as of May 25, 1999
TABLE OF CONTENTS
-----------------
Page
----
Section 1. Definitions........................................................................ 1
Section 2. Capital Contributions.............................................................. 5
Section 3. Taxes.............................................................................. 6
Section 4. Obligations of the Contributors and the Company.................................... 6
Section 5. Representations and Warranties..................................................... 6
Section 6. Patent Applications................................................................ 9
Section 7. Conditions to the Obligations of IMA............................................... 9
Section 8. Conditions to the Obligations of MarketNet......................................... 10
Section 9. Conditions to the Obligations of the Company....................................... 10
Section 10. Survival of Representations and Warranties; Indemnification, Etc................... 11
Section 11. Further Assurances................................................................. 13
Section 12. Miscellaneous...................................................................... 13
Section 12. Miscellaneous...................................................................... 13
EXHIBITS
Exhibit A - Assumed IMA Liabilities
Exhibit B - Assumed MarketNet Liabilities
Exhibit C - IMA Consumer Electronic Commerce Products
Exhibit D - IMA Contracts
Exhibit DD - IMA Equipment
Exhibit DDD - IMA Trademark Interests
Exhibit E - MarketNet Contracts
Exhibit F - MarketNet Products
Exhibit G - Form of IMA Assignment and Assumption Agreement
Exhibit H - Form of MarketNet Assignment and Assumption Agreement
Exhibit I - Form of Software Licensing, Marketing and Noncompetition
Agreement
Exhibit J - Form of Registration Rights Agreement
Exhibit K - Form of Services Agreement
Exhibit L - Form of Space Sharing Agreement
i
CONTRIBUTION AGREEMENT
----------------------
THIS CONTRIBUTION AGREEMENT is made effective as of May 25, 1999 (the
"Agreement"), by and among INFORMATION MANAGEMENT ASSOCIATES, INC. a Connecticut
corporation, ("IMA"), MARKETNET, L.L.C., a Delaware limited liability company
("MarketNet") (collectively IMA and MarketNet are referred to herein as the
"Contributors") and xxxxxxxxxx.xxx inc., a Connecticut corporation (the
"Company").
W I T N E S S E T H:
-------------------
WHEREAS, the Contributors desire to make capital contributions (the
"Capital Contributions") to the Company of certain assets and liabilities in
exchange for shares of the Common Stock of the Company, no par value ("Common
Stock"). IMA will receive 7,990,000 shares of the Common Stock for its Capital
Contribution and MarketNet will receive 510,000 shares of the Common Stock for
its Capital Contribution;
WHEREAS the parties intend the Capital Contributions hereunder to be tax-
free contributions to the Company under the Code;
WHEREAS, immediately after the Capital Contributions, the Contributors will
own all of the issued and outstanding the Common Stock in the Company;
WHEREAS, in connection with the Capital Contributions, the Company,
MarketNet and IMA will enter into certain related agreements, including a
Services Agreement between the Company and IMA, a Space Sharing Agreement
between the Company and IMA, a Software Licensing, Marketing and Noncompetition
Agreement between the Company and IMA, a Registration Rights Agreement among the
Company, IMA and MarketNet and a Tax Allocation Agreement between the Company
and IMA (collectively, the "Related Agreements"); and
WHEREAS, each of IMA, MarketNet and the Company have this Agreement by all
requisite corporate or limited liability company action.
NOW, THEREFORE, in consideration of the premises and the representations,
warranties and the agreements hereinafter contained, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
Section 1. Definitions. The terms defined in this Section 1, wherever
-----------
used in this Agreement, shall have the following meanings for all purposes of
this Agreement.
"Assumed IMA Liabilities" means (i) all executory obligations under
-----------------------
the IMA Contracts and (ii) the other obligations and liabilities set forth on
Exhibit A hereto.
---------
"Assumed MarketNet Liabilities" means the obligations and liabilities
-----------------------------
set forth on Exhibit B hereto.
---------
"Closing" shall have the meaning set forth in Section 2(f) hereof.
-------
"Closing Date" shall have the meaning set forth in Section 2(f)
-------------
hereof.
"Code" means the Internal Revenue Code of 1986, as amended, and the
----
rules and regulations promulgated thereunder.
"Common Stock" shall have the meaning set forth in the recitals above.
------------
"Computer Code" means computer programming code. Except as otherwise
-------------
specified, Computer Code shall include both Object Code and Source Code.
"Derivative Work" means a work that is based upon one or more
----------------
preexisting works, such as a revision, modification, translation, abridgement,
condensation, expansion, or an y other form in which such preexisting works may
be recast, transformed, or adapted, and which, if prepared without authorization
of the owner of the copyright in such preexisting work, would constitute a
copyright infringement. For purposes of this Agreement, a Derivative Work shall
also include any compilation that incorporate such preexisting work.
"Development Documentation" means all Documentation used in
-------------------------
conjunction with Source Code in the development process.
"Documentation" means all written materials (and machine-readable text
-------------
subject to display and printout) that relate to and/or describe particular
Computer Code. Except as otherwise specified, Documentation shall include
Development Documentation and User Documentation.
"GAAP" shall mean United States generally accepted accounting
----
principles as promulgated by the Financial Accounting Standards Board.
"IMA Assignment and Assumption Agreement" shall have the meaning set
---------------------------------------
forth in Section 2(a) hereof.
"IMA Consumer Electronic Commerce Products" means the forms of
-----------------------------------------
Computer Code and Documentation listed in Exhibit C attached hereto.
---------
"IMA Contracts" means the contracts, agreements, and other obligations
-------------
relating to the IMA Consumer Electronic Commerce Products listed on Exhibit D.
---------
"IMA Copyright Interests" means all the interests currently held by
-----------------------
IMA in registered or unregistered copyrights and copyright registrations in the
United States in and to the IMA Consumer Electronic Commerce Products, and any
renewal or extension thereof, and any normal rights pertaining thereto,
including the right to xxx for, settle or release any past, present or future
infringement thereof.
"IMA Derivative Product" means a computer program product in Source
----------------------
Code or Object Code form, together with related Documentation, which is either a
Derivative Work or a copy of any IMA Consumer Electronic Commerce Product;
provided, however,
2
that any product that, when its Computer Code is fully combined with other
Computer Code to render it operational, contains less than twenty-five percent
(25%) of the Computer Code of the module or modules of the IMA Consumer
Electronic Commerce Product from which it may have been derived shall not be
deemed a copy or Derivative Work of the IMA Consumer Electronic Commerce Product
for this purpose.
"IMA Equipment" means the computer equipment and peripherals listed on
-------------
Exhibit DD.
----------
"IMA Excluded Assets" shall have meaning as set forth in Section 2(b)
-------------------
hereof.
"IMA Other Interests" means the interests, other than the IMA
-------------------
Copyright Interests and the IMA Patent Interests, that IMA may own or have the
right to sublicense hereunder in (1) any idea, design, concept, technique,
invention, discovery, or improvement, whether or not patentable, but including,
without limitation, patents, patent applications, trade secrets, and know-how,
that are embodied in or evidenced by the IMA Consumer Electronic Commerce
Products or any IMA Derivative Products, or required to be used or practiced in
order to exercise the rights and licenses granted hereunder; and (2) pictorial,
graphic, or audio/visual works, including, without limitation, icons, screens,
characters, data formats, and reports created as a result of execution of the
IMA Consumer Electronic Commerce Products or any IMA Derivative Products,
whether such pictorial, graphic, or audio/visual works are created by use of the
IMA Consumer Electronic Commerce Products or any IMA Derivative Products alone
or with other programming or through other means.
"IMA Patent Interests" means the interests now owned by IMA or
--------------------
existing and filed or hereafter acquired or arising and filed to any patents,
patent applications and patentable interests (including, without limitation,
inventions and improvements) in and to the IMA Consumer Electronic Commerce
Products, in the United States and foreign jurisdictions.
"IMA Trademark Interests" means the unregistered trademarks, federal
-----------------------
trademark applications and registered domain names listed on Exhibit DDD.
-----------
"Lien or Liens" shall mean any mortgage, lien, security interest,
-------------
pledge, negative pledge, encumbrance, assessment, title retention agreement,
restriction or restraint on transfer, defect of title, charge in the nature of a
lien or security interest, or option (whether consensual, statutory or
otherwise).
"MarketNet Contracts" means the contracts, agreements, and other
-------------------
obligations relating to the MarketNet Products listed on Exhibit E.
---------
"MarketNet Copyright Interests" means all the interests currently held
-----------------------------
by MarketNet in registered or unregistered copyrights and copyright
registrations in the United States in and to the MarketNet Products, and any
renewal or extension thereof, and any normal rights pertaining thereto,
including the right to xxx for, settle or release any past, present or future
infringement thereof.
3
"MarketNet Derivative Product" means a computer program product in
----------------------------
Source Code or Object Code form, together with related Documentation, which is
either a Derivative Work of or a copy of any MarketNet Product; provided,
however, that any product that, when its Computer Code is fully combined with
other Computer Code to render it operational, contains less than twenty-five
percent (25%) of the Computer Code of the module or modules of the MarketNet
Product from which it may have been derived shall not be deemed a copy or
Derivative Work of the MarketNet Product for this purpose.
"MarketNet Other Interests" means the interests, other than the
-------------------------
MarketNet Copyright Interests and the MarketNet Patent Interests, that
MarketNet may own or have the right to sublicense hereunder in (1) any idea,
design, concept, technique, invention, discovery, or improvement, whether or not
patentable, but including, without limitation, patents, patent applications,
trade secrets, and know-how, that are embodied in or evidenced by the MarketNet
Products or any MarketNet Derivative Products, or required to be used or
practiced in order to exercise the rights and licenses granted hereunder; and
(2) pictorial, graphic, or audio/visual works, including, without limitation,
icons, screens, characters, data formats, and reports created as a result of
execution of the MarketNet Products or any MarketNet Derivative Products,
whether such pictorial, graphic, or audio/visual works are created by use of the
MarketNet Products or any MarketNet Derivative Products alone or with other
programming or through other means.
"MarketNet Patent Interests" means the interests now owned by
--------------------------
MarketNet or existing and filed or hereafter acquired or arising and filed to
any patents, patent applications and patentable interests (including, without
limitation, inventions and improvements) in and to the MarketNet Products, in
the United States and foreign jurisdictions.
"MarketNet Products" means the forms of Computer Code and
------------------
Documentation listed in Exhibit F attached hereto.
---------
"Object Code" means the machine-readable form of the Computer Code.
-----------
"Permitted Liens" means: (i) Liens for current taxes not yet
---------------
delinquent for which appropriate reserves in accordance with GAAP have been
created; (b) statutory liens imposed by law which are incurred in the ordinary
course of business for obligations not yet due to carriers, warehousemen,
laborers and materialmen.
"Source Code" means the human-readable form of the Computer Code,
-----------
including all comments and any procedural Computer Code such as job control
language.
"Transferred Assets" means, collectively, the Transferred IMA Assets
------------------
and the Transferred MarketNet Assets.
"Transferred IMA Assets" means the IMA Patent Interests, the IMA
----------------------
Copyright Interests, the IMA Contracts, copies of the IMA Consumer Electronic
Commerce Products, the IMA Equipment, the IMA Trademark Interests and shall not
include the IMA Excluded Assets.
4
"Transferred MarketNet Assets" means the MarketNet Patent Interests,
----------------------------
the MarketNet Copyright Interests, the MarketNet Contracts, the MarketNet Other
Interests and copies of the MarketNet Products.
"User Documentation" means all Documentation in the form of
------------------
instructions and manuals provided to end-user customers.
Section 2. Capital Contributions.
---------------------
(a) On the terms and subject to the conditions of this
Agreement, effective as of the date first written above, IMA hereby agrees to
transfer, convey and assign or cause to be transferred, conveyed and assigned to
the Company all of its right, title, interest in and to the Transferred IMA
Assets. As consideration for the transfer of the Transferred IMA Assets to the
Company, the Company shall (i) issue and cause to be delivered to IMA 7,990,000
shares of the Common Stock in IMA's name, and (ii) assume the Assumed IMA
Liabilities. IMA and the Company shall execute and deliver an Assignment and
Assumption Agreement in the form of Exhibit G hereto (the "IMA Assignment and
---------
Assumption Agreement"), together with such other documents or instruments of
transfer as reasonably required by the Company or IMA, as the case may be, to
evidence such contribution, the transfer and assignment of the Transferred IMA
Assets and the assumption of the Assumed IMA Liabilities on the Closing Date.
(b) Anything contained in this Agreement to the contrary, there
are expressly excluded from the assets conveyed and assigned to the Company by
IMA the following: (i) the IMA Other Interests; and (ii) intellectual property
rights in software products other than the IMA Consumer Electronic Commerce
Products, all of which are hereby expressly reserved by IMA. For convenience of
reference, the assets, properties and rights referred to in this Section 2(b)
which are being retained by IMA are hereinafter collectively referred to as the
"IMA Excluded Assets."
(c) IMA may make and retain no more than ten (10) additional
copies of the IMA Consumer Electronic Commerce Products and IMA Derivative
Products for nonproductive archival purposes. IMA shall protect the Source Code
version of any IMA Consumer Electronic Commerce or IMA Derivative Products with
the same degree of care as it provides for its own or similar products.
(d) Notwithstanding any other provision of this Agreement, IMA
reserves and retains for its own benefit that right to use and disclose, for any
purpose whatsoever, the ideas, concepts, know-how, and techniques embodied in or
disclosed by the IMA Consumer Electronic Commerce Products or any IMA Derivative
Products.
(e) On the terms and subject to the conditions of this
Agreement, effective as of the date first written above, MarketNet hereby agrees
to transfer, convey and assign or cause to be transferred, conveyed and assigned
to the Company all of its right, title, interest in and to the Transferred
MarketNet Assets. As consideration for the transfer of the Transferred MarketNet
Assets to the Company, the Company shall (i) issue and cause to be delivered to
MarketNet 510,000 shares of the Common Stock in MarketNet's name and (ii) assume
5
the Assumed MarketNet Liabilities. MarketNet and the Company shall execute and
deliver an Assignment and Assumption Agreement in the form of Exhibit H hereto
---------
(the "MarketNet Assignment and Assumption Agreement"), together with such other
documents or instruments of transfer as reasonably required by the Company or
MarketNet, as the case may be, to evidence such contribution and the transfer
and assignment of the Transferred MarketNet Assets and the assumption of the
Assumed MarketNet Liabilities on the Closing Date.
(f) The closing of the transactions contemplated hereby (the
"Closing") shall, unless another date or place is agreed to in writing by the
parties hereto, at the offices of LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P., 000
Xxxxxx Xxxxxx, Xxxxxxxx, XX. 00000 at 10:00 a.m. local time on May 25, 1999
(the "Closing Date").
Section 3. Taxes.
-----
(a) Federal Income Tax Treatment of the Capital Contributions.
---------------------------------------------------------
The parties intend that the Capital Contributions by the Contributors to the
Company will be treated as tax-free contributions under the Code. All provisions
of this Agreement shall be interpreted and construed so as to effectuate such
treatment, and the parties shall take appropriate action to ensure such
treatment.
(b) Transfer Taxes. Each of MarketNet and IMA will pay 50% of
--------------
all sales, use, transfer and documentary taxes and recording and filing fees
applicable to the transfer of the Transferred Assets to the Company, and hold
the Company harmless from payment of any and all sales, use, transfer and
documentary taxes applicable to the transfer of the Transferred Assets.
Section 4. Obligations of the Contributors and the Company. The
-----------------------------------------------
Contributors and Company agree not to take any action or position, or file any
election or return which would cause the Capital Contributions not to be treated
as a tax-free reorganization under the Code.
Section 5. Representations and Warranties.
------------------------------
(a) IMA represents and warrants to MarketNet and the Company as
follows:
(1) Corporate Power and Authority. IMA has the requisite
-----------------------------
power and authority to execute, deliver and perform this Agreement and to
contribute to the Company the Transferred IMA Assets. The execution, delivery
and performance of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized by all necessary action (corporate
or otherwise) on the part of IMA. This Agreement constitutes the legal, valid
and binding obligation of IMA, enforceable against IMA in accordance with its
terms, except as such enforcement may be limited by applicable bankruptcy,
insolvency, moratorium or similar laws affecting the enforcement of creditors'
rights generally.
(2) Validity of Contemplated Transactions. The execution,
-------------------------------------
delivery and performance of this Agreement by IMA and the consummation of the
transactions contemplated hereby do not and will not (a) violate, breach or
contravene any of the terms, conditions or provisions of the Certificate of
Incorporation or Bylaws of IMA, (b) violate or
6
constitute a default under, any material contract by which IMA or its property
is bound, or (c) violate any material provision of law.
(3) Title to Contributed Assets. IMA is in possession of
---------------------------
and has good, valid and marketable title to, or has a valid leasehold interest
in or valid rights under contract to use, all the Transferred IMA Assets. All
the Transferred IMA Assets are free and clear of all Liens, except Permitted
Liens.
(4) Investment Representation. IMA is an "accredited
-------------------------
investor" within the meaning of Rule 501 of the Securities Act of 1933, as
amended (the "1933 Act"). IMA is acquiring the Common Stock issuable by the
Company hereunder for investment and not with a view to, or for sale in
connection with, any "distribution," as such term is used in Section 2(11) of
the 1933 Act, of any shares of Common Stock in violation of the 1933 Act. IMA
understands that (i) the Common Stock issuable hereunder will be "restricted
securities" within the meaning of Rule 144 promulgated under the 1933 Act; (ii)
such securities must be held indefinitely and that no transfer of such
securities may be made by IMA unless (A) the sale of such securities has been
registered under the 1933 Act and any applicable state securities laws, or (B)
an exemption from registration is available under the 1933 Act and applicable
state securities laws; and (iii) that the certificates representing the Common
Stock will bear a customary restrictive legend as to the foregoing matters.
(b) MarketNet represents and warrants to IMA and the Company as
follows:
(1) Corporate Power and Authority. MarketNet has the
-----------------------------
requisite power and authority to execute, deliver and perform this Agreement and
to contribute to the Company the Transferred MarketNet Assets. The execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by all necessary
action (corporate or otherwise) on the part of MarketNet. This Agreement
constitutes the legal, valid and binding obligation of MarketNet, enforceable
against MarketNet in accordance with its terms, except as such enforcement may
be limited by applicable bankruptcy, insolvency, moratorium or similar laws
affecting the enforcement of creditors' rights generally.
(2) Validity of Contemplated Transactions. The execution,
-------------------------------------
delivery and performance of this Agreement by MarketNet and the consummation of
the transactions contemplated hereby do not and will not (a) violate, breach or
contravene any of the terms, conditions or provisions of the Articles of
Organization or limited liability company agreement of MarketNet, (b) violate or
constitute a default under, any material contract by which MarketNet or its
property is bound, or (c) violate any material provision of law.
(3) Title to Contributed Assets. MarketNet is in possession
---------------------------
of and has good, valid and marketable title to, or has a valid leasehold
interest in or valid rights under contract to use, all the Transferred MarketNet
Assets. All the Transferred MarketNet Assets are free and clear of all Liens,
except Permitted Liens.
7
(4) Investment Representation. MarketNet is an "accredited
--------------------------
investor" within the meaning of Rule 501 of the Securities Act of 1933, as
amended (the "1933 Act"). MarketNet is acquiring the Common Stock issuable by
the Company hereunder for investment and not with a view to, or for sale in
connection with, any "distribution," as such term is used in Section 2(11) of
the 1933 Act, of any shares of Common Stock in violation of the 1933 Act.
MarketNet understands that (i) the Common Stock issuable hereunder will be
"restricted securities" within the meaning of Rule 144 promulgated under the
1933 Act; (ii) such securities must be held indefinitely and that no transfer of
such securities may be made by MarketNet unless (A) the sale of such securities
has been registered under the 1933 Act and any applicable state securities laws,
or (B) an exemption from registration is available under the 1933 Act and
applicable state securities laws; and (iii) that the certificates representing
the Common Stock will bear a customary restrictive legend as to the foregoing
matters.
(c) The Company represents and warrants to IMA and MarketNet as
follows:
(1) Corporate Power and Authority. The Company has the requisite
-----------------------------
power and authority to execute, deliver and perform this Agreement and to accept
the Transferred Assets. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby have been
duly authorized by all necessary action (corporate or otherwise) on the part of
the Company. This Agreement constitutes the legal, valid and binding obligation
of the Company, enforceable in accordance with its terms, except as such
enforcement may be limited by applicable bankruptcy, insolvency, moratorium or
similar laws affecting the enforcement of creditors' rights generally.
(2) Validity of Contemplated Transactions. The execution,
-------------------------------------
delivery and performance of this Agreement by the Company and the consummation
of the transactions contemplated hereby do not and will not (a) violate, breach
or contravene any of the terms, conditions or provisions of the Certificate of
Incorporation or Bylaws of the Company, (b) violate or constitute a default
under, any material contract by which the Company or its property is bound, or
(c) violate any material provision of law.
(3) Capitalization. The Company's authorized capital stock
--------------
consists of 10,000,000 shares of common stock, no par value ("Common Stock"),
none of which is issued and outstanding. Except for stock options for an
aggregate of 1,250,000 shares granted to employees and consultants of the
Company or its Affiliates pursuant to the Company's 1999 Employee and Consultant
Stock Option Plan, there are no outstanding options, warrants or rights to
acquire any capital stock of the Company and there are no outstanding securities
that are convertible into or exchangeable for capital stock of the Company. The
Contributors will collectively own all of the issued and outstanding shares of
the Common Stock of the Company as of the closing of the transactions
contemplated by the Agreement. On the Closing Date 7,990,000 shares of the
Common Stock will be issued to IMA and 510,000 shares of the Common Stock will
be issued to MarketNet.
Section 6. Patent Applications. MarketNet and IMA acknowledge and agree
-------------------
that certain technology and intellectual property rights were acquired from IMA
by MarketNet pursuant to an Asset Purchase Agreement dated as of December 31,
-----------
1997 and that MarketNet
8
subsequently developed certain additional intellectual property after January 1,
1998 utilizing the services of IMA's research and development staff on a
consulting basis. MarketNet is transferring all of its technology and
intellectual property rights to the Company pursuant to this Agreement,
including without limitation all such technology and intellectual property
rights acquired from IMA and developed by MarketNet. Certain of the intellectual
property developed by MarketNet utilizing the services of IMA's research and
development department is the subject of United States patent application No.
09/084,810 ("Application Number 09/084,810") filed in the name of IMA, as
nominee for MarketNet. MarketNet and IMA agree that Application Number
09/084,810 is beneficially owned by MarketNet and that MarketNet is transferring
all of its right, title and interest in and to Application Number 09/084,810 to
the Company pursuant to this Agreement. Accordingly, MarketNet hereby directs
IMA, as its nominee with respect to Application Number 09/084,810, on and after
the Closing, to execute and deliver to the Company and file with all appropriate
authorities, including the United States Patent and Trademark Office, all
instruments of assignment, notices, certificates, and other documents necessary
to effectively transfer ownership of Application Number 09/084,810 to the
Company.
Section 7. Conditions to the Obligations of IMA. The obligations of
------------------------------------
IMA to perform this Agreement are subject to the satisfaction of the following
conditions unless waived by IMA in writing:
(a) Representations and Warranties. The representations and warranties of
------------------------------
the Company and MarketNet set forth in Sections 5(c) and 5(b) hereof shall be
true and correct in all material respects as of the date of this Agreement and
as of the Closing as though made on and as of the Closing, and IMA shall have
received certificates signed by an officer of the Company and MarketNet,
respectively, to that effect at the Closing.
(b) Performance of Obligations of the Company and MarketNet. Each of the
-------------------------------------------------------
Company and MarketNet shall have performed all obligations required to be
performed by it prior to or at the Closing under this Agreement, and IMA shall
have received a certificate signed by an officer of each of the Company and
MarketNet, respectively, to that effect at the Closing.
(c) Assignment and Assumption Agreement. IMA shall have received a duly
-----------------------------------
executed IMA Assignment and Assumption Agreement in substantially the form of
Exhibit G attached hereto.
---------
(d) Software Licensing, Marketing and Noncompetition Agreement. The
----------------------------------------------------------
Company shall have executed and delivered the Software Licensing, Marketing and
Noncompetition Agreement in substantially the form of Exhibit I attached hereto.
---------
(e) Registration Rights Agreement. The Company shall have executed and
-----------------------------
delivered the Registration Rights Agreement in substantially the form of Exhibit
-------
J attached hereto.
-
(f) Services Agreement. The Company shall have executed and delivered the
------------------
Services Agreement in substantially the form of Exhibit K attached hereto.
---------
9
(g) Space Sharing Agreement. The Company shall have executed and delivered
-----------------------
the Space Sharing Agreement in substantially the form of Exhibit L.
---------
Section 8. Conditions to the Obligations of MarketNet. The obligations
------------------------------------------
of MarketNet to perform this Agreement are subject to the satisfaction of the
following conditions unless waived by MarketNet in writing.
(a) Representations and Warranties. The representations and warranties of
------------------------------
the Company and IMA set forth in Sections 5(c) and 5(a) hereof shall be true and
correct in all material respects as of the date of this Agreement and as of the
Closing as though made on and as of the Closing, and MarketNet shall have
received certificates signed by an officer of each of the Company and IMA to
that effect at Closing.
(b) Performance of Obligations of the Company and IMA. Each of the Company
-------------------------------------------------
and IMA shall have performed all obligations required to be performed by it
prior to or at the Closing under this Agreement, and MarketNet shall have
received certificates signed by an officer of each of the Company and MarketNet
to that effect at the Closing.
(c) Assignment and Assumption Agreement. MarketNet shall have received a
-----------------------------------
duly executed MarketNet Assignment and Assumption Agreement in substantially the
form of Exhibit H, attached hereto.
------- -
(d) Registration Rights Agreement. The Company shall have executed and
-----------------------------
delivered the Registration Rights Agreement in substantially the form of Exhibit
-------
J attached hereto.
-
Section 9. Conditions to the Obligations of the Company. The
--------------------------------------------
obligations of the Company to perform this Agreement are subject to the
satisfaction of the following conditions unless waived by the Company in
writing:
(a) Representations and Warranties. The representations and warranties of
------------------------------
IMA and MarketNet set forth in Sections 5(a) and 5(b), respectively hereof shall
be true and correct in all material respects as of the date of this Agreement
and as of the Closing as though made on and as of the Closing, and the Company
shall have received certificates signed by an officer of each of IMA and
MarketNet to that effect at the Closing.
(b) Performance of Obligations of IMA and MarketNet. Each of IMA and
-----------------------------------------------
MarketNet shall have performed all obligations required to be performed by it
prior to or on the Closing under this Agreement and the Company shall have
received certificates signed by an officer of each of IMA and MarketNet to that
effect at the Closing.
(c) Assumption Agreement. The Company shall have received the IMA
--------------------
Assignment and Assumption Agreement and the MarketNet Assignment and Assumption
Agreement in substantially the forms of Exhibit G and Exhibit H attached hereto,
--------- ---------
duly executed by IMA and MarketNet, respectively.
10
(d) Software Licensing, Marketing and Noncompetition Agreement. IMA shall
----------------------------------------------------------
have executed and delivered the Software Licensing, Marketing and Noncompetition
Agreement in substantially the form of Exhibit I attached hereto.
----------
(e) Services Agreement. IMA shall have executed and delivered the Services
------------------
Agreement in substantially the form of Exhibit K attached hereto.
---------
(f) Space Sharing Agreement. IMA shall have executed and delivered the
-----------------------
Space Sharing Agreement in substantially the form of Exhibit L attached hereto.
---------
Section 10. Survival of Representations and Warranties; Indemnification,
------------------------------------------------------------
Etc.
---
(a) Survival. All representations and warranties of the parties made in
--------
this Agreement or pursuant to this Agreement, including, without limitation, all
representations and warranties made on any Exhibit or Schedule hereto or
document delivered hereunder, shall survive the Closing until the second
anniversary of the Closing (the "Survival Date") but thereafter shall expire and
no party shall be entitled to make a claim for indemnification with respect to
such representations and warranties unless a claim with respect thereto shall
have been made in writing against the party responsible for indemnification
hereunder on or prior to the Survival Date; provided that the foregoing
limitation shall not apply to the representations and warranties made in
Sections 5(a)(3), 5(b)(3) and 5(c)(3), which shall survive until the expiration
------- ------- -------
of all applicable statutes of limitation. All representations and warranties
hereunder shall be deemed to be material and relied upon by the parties with or
to whom the same were made, not withstanding any investigation or inspection
made by or on behalf of such party or parties.
(b) Indemnification by IMA. IMA hereby agrees to indemnify and to hold
----------------------
the Company and MarketNet harmless from, against and in respect of any and all
losses, liabilities actions, suits, proceedings, claims, demands, assessments,
judgments, costs and out-of-pocket expenses, including, without limitation,
reasonable legal fees and expenses suffered or incurred (collectively,
"Losses"), suffered or incurred by the Company or MarketNet by reason of (i) any
untrue representation, breach of warranty or non-fulfillment of any covenant or
agreement by IMA contained in this Agreement or in any certificate, document or
instrument delivered to the Company or MarketNet pursuant hereto or in
connection herewith and (ii) any liability or obligation of IMA not expressly
assumed by the Company pursuant to this Agreement.
(c) Indemnification by MarketNet. MarketNet hereby agrees to indemnify and
----------------------------
hold the Company and IMA harmless from, against and in respect of any and all
Losses by reason of (i) the Company or IMA from any untrue representation,
breach of warranty or non-fulfillment of any covenant or agreement by MarketNet
contained in this Agreement or in any certificate, document or instrument
delivered to the Company or IMA pursuant hereto or in connection herewith and
(ii) any liability or obligation of MarketNet not expressly assumed by the
Company pursuant to this Agreement.
(d) Indemnification by the Company. The Company hereby agrees to indemnify
------------------------------
and hold each of IMA and MarketNet harmless from, against and in respect of any
and all Losses, suffered or incurred by IMA or MarketNet by reason of (i) any
untrue representation; breach of
11
warranty or non-fulfillment of any covenant or agreement by the Company
contained in this Agreement or in any certificate, document or instrument
delivered to IMA or MarketNet pursuant hereto or in connection herewith and (ii)
any IMA Assumed Liability or any MarketNet Assumed Liability.
(e) Matters Involving Third Parties.
--------------------------------
(i) If any third party shall notify any party hereto (the
"Indemnified Party") with respect to any matter (a "Third Party Claim")
----------------- -----------------
which may give rise to a claim for indemnification against any other party
hereto (the "Indemnifying Party") under this Section 10, then the
------------------
Indemnified Party shall promptly notify each Indemnifying Party thereof in
writing; provided, however, that no delay on the part of the Indemnified
-----------------
Party in notifying any Indemnifying Party shall relieve the Indemnifying
Party from any obligation hereunder unless (and then solely to the extent)
the Indemnifying Party thereby is prejudiced.
(ii) Any Indemnifying Party will have the right to defend the
Indemnified Party against the Third Party Claim with counsel of its choice
reasonably satisfactory to the Indemnified Party so long as (A) the
Indemnifying Party notifies the Indemnified Party in writing within 15 days
after the Indemnified Party has given notice of the Third Party Claim that
the Indemnifying Party will indemnify the Indemnified Party from and
against the entirety of any Losses the Indemnified Party may suffer
resulting from, arising out of, relating to, in the nature of, or caused by
the Third Party Claim, (B) the Indemnifying Party provides the Indemnified
Party with evidence reasonably acceptable to the Indemnified Party that the
Indemnifying Party will have the financial resources to defend against the
Third Party Claim and fulfill its indemnification obligations hereunder,
(C) the Third Party Claim involves only money damages and does not seek an
injunction or other equitable relief, (D) settlement of, or an adverse
judgment with respect to, the Third Party Claim is not, in the good faith
judgment of the Indemnified Party, likely to establish a precedential
custom or practice materially adverse to the continuing business interests
of the Indemnified Party, and (E) the Indemnifying Party conducts the
defense of the Third Party Claim actively and diligently.
(iii) So long as the Indemnifying Party is conducting the defense of
the Third Party Claim in accordance with Sectio10(e)(ii) above, (A) the
Indemnified Party may retain separate co-counsel at its sole cost and
expense and participate in the defense of the Third Party Claim, (B) the
Indemnified Party will not consent to the entry of any judgment or enter
into any settlement with respect to the Third Party Claim without the prior
written consent of the Indemnifying Party (not to be withheld
unreasonably), and (C) the Indemnifying Party will not consent to the entry
of any judgment or enter into any settlement with respect to the Third
Party Claim without the prior written consent of the Indemnified Party (not
to be withheld unreasonably).
12
(iv) In the event any of the conditions in Section 10(e)(ii) above is
or becomes unsatisfied, however, (A) the Indemnified Party may defend
against, and consent to the entry of any judgment or enter into any
settlement with respect to, the Third Party Claim in any manner it
reasonably may deem appropriate (and the Indemnified Party need not consult
with, or obtain any consent from, any Indemnifying Party in connection
therewith), (B) the Indemnifying Party will reimburse the Indemnified Party
promptly and periodically for the costs of defending against the Third
Party Claim (including reasonable attorneys' fees and expenses), and (C)
the Indemnifying Party will remain responsible for any Losses the
Indemnified Party may suffer resulting from, arising out of, relating to,
in the nature of, or caused by the Third Party Claim to the fullest extent
provided in this Section 10.
(f) Disclaimer. Except as expressly provided in this Agreement, neither
----------
IMA nor MarketNet makes any representation or warranty, express or implied, with
respect to the IMA Transferred Assets or the MarketNet Transferred Assets,
including, but not limited to, any implied warranty of merchantability or
fitness for a particular purpose.
Section 11. Further Assurances. In case at any time after the Closing,
------------------
any further action is necessary to carry out the purposes of this Agreement,
each of the parties will take such further action (including the execution and
delivery of such further instruments and documents) as any other party
reasonably may request, all the sole cost and expense of the requesting party
(unless the requesting party is entitled to indemnification therefor under
Section 10 above).
Section 12. Miscellaneous.
-------------
(a) Modification; Waiver. This Agreement may be modified only by a
--------------------
written instrument executed by the parties to this Agreement. Any of the terms
and conditions of this Agreement may be waived in writing at any time on or
prior to the Closing Date by the party entitled to the benefits of such terms
and conditions.
(b) Further Actions. Each party shall execute and deliver such
---------------
certificates and other documents and take such other actions as may reasonably
be requested by the other parties in order to consummate or implement the
transactions contemplated by this Agreement.
(c) Assignment. This Agreement shall be binding upon and inure to the
----------
benefit of the parties and their respective successors and permitted assigns,
but shall not be assignable, by operation of law or otherwise, by any party
without the prior written consent of the other parties.
(d) Counterparts. This Agreement may be executed in counterparts, all
------------
of which shall constitute one and the same instrument.
(e) Entire Agreement. This Agreement constitutes the entire agreement
----------------
among the parties with respect to the subject matter hereof.
(f) Severability. If any provision of this Agreement is invalid,
------------
illegal or incapable of being enforced by any rule of law or public policy, such
provision shall be deemed
13
severable and all other provisions of this Agreement shall nevertheless remain
in full force and effect.
(g) Headings. Section headings in this Agreement are included herein
--------
for convenience of reference only and shall not constitute a part of this
Agreement for any other purpose.
(h) Governing Law. This Agreement shall be governed by and construed
-------------
in accordance with the laws of the State of Connecticut without regard to the
conflicts of law principles of such State.
(i) Termination. Anything contained in this Agreement to the contrary
-----------
notwithstanding, this Agreement may be terminated at any time prior to the
Closing Date by the mutual written consent of the Contributors and the Company.
In the event this Agreement shall be terminated pursuant to this Section 12(i),
all further obligations of the parties under this Agreement shall terminate
without further liability of any party to this Agreement; provided, however,
-------- -------
that nothing herein shall relieve any party from liability for its willful
breach of this Agreement.
[SIGNATURE PAGE FOLLOWS]
14
THIS AGREEMENT has been signed by each of the parties hereto as of the
date of first set forth above.
INFORMATION MANAGEMENT ASSOCIATES, INC
a Connecticut corporation
By:___________________________________
Name: Xxxx X. Xxxxxxx
Title: Assistant Secretary
MARKETNET, L.L.C.
a Delaware limited liability company
By:___________________________________
Name: Xxxxxx Xxxx
Title: Member
xxxxxxxxxx.xxx inc.
By:___________________________________
Name: Xxxx X. Xxxxxxx
Title: President
[SIGNATURE PAGE TO CONTRIBUTION AGREEMENT]
Exhibit A
---------
Assumed IMA Liabilities
1. All liabilities and obligations arising after the Closing Date under
the IMA Contracts.
2. Accounts payable relating to computer equipment contributed to
xxxxxxxxxx.xxx inc.
Exhibit B
----------
Assumed MarketNet Liabilities
1. All liabilities and obligations arising after the Closing Date under
the MarketNet Contracts.
Exhibit D
---------
IMA Contracts
1. Independent Contractor Services Agreement between IMA and Digitools,
Inc. effective October 1, 1997, and IMA's interest in said contract
was transferred to MarketNet as of December 31, 1997.
2. Development Agreement between American Business Information, Inc. and
IMA. effective December 16, 1997, and IMA's interest in said contract
was transferred to MarketNet as of December 31, 1997.
3. American Business Information License Agreement between American
Business Information, Inc. and Information Management Associates, Inc.
dated December 12, 1997, and IMA's interest in said contract was
transferred to MarketNet as of December 31, 1997.
4. Professional Services Agreement between Advanced Technology Solutions,
Inc. and Information Management Associates, Inc. dated April 9, 1999.
5. Third Party Consulting Services Agreement between Xxxx Xxxx and
Information Management Associates, Inc. dated March 10, 1999.
6. Third Party Consulting Services Agreement between Tyrell Software
Corporation and Information Management Associates, Inc. dated January
27, 1999.
7. Master Service Agreement between Frontier Global Center and
Information Management Associates, Inc. dated May 14, 1999.
8. Master Lease Agreement (No. 552335) between Apple Commercial Credit
and Information Management Associates, Inc. dated March 23, 1999,
including: Equipment Schedule Xx. 000000; Xxxxxxxxx Xxxxxxxx Xx.
000000; Service Contract (Banctec Service Corp. - Order No. 223294018
& 223294786); Parts Support Agreement (Dell - Order No. 223294018 &
223294786).
Exhibit C
---------
IMA Consumer Electronic Commerce Products
1. Computer software code developed by IMA for the consumer electronic
commerce website designated as buying edge, including a form based
messaging response system, a web navigation system, a vendor database and a
product database.
Exhibit DD
----------
Equipment Contributed to xxxxxxxxxx.xxx by Information Management
Associates, Inc.
----------------------------------------------------------------------------------------------------------------------
IMA Tag # Serial Number Make/Model Location/Assigned to
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
Sun X000 Xxxxxxxxxxx Xxxxxx Xxxxxxxx/Xxxxxx Xxxxxx - XX
----------------------------------------------------------------------------------------------------------------------
Network Appliance Netapp F740 Configured Filer Frontier/Global Center - NY
----------------------------------------------------------------------------------------------------------------------
Sun E250 Development Server Irvine
----------------------------------------------------------------------------------------------------------------------
2162 0000321-C-12800-85G-3074 Dell Latitude 233 Laptop (Xxxxxx Xx. - runs Linux) Xxxxxxx
----------------------------------------------------------------------------------------------------------------------
2188 1V8ABYG3929T Compaq 233 Laptop (for demo kit) Xxxxxxx
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
000668 Dell Dimension 400 Desktop Xxxx Xxxx
----------------------------------------------------------------------------------------------------------------------
000772 BC096525536 Gateway - Solo 2200 Xxxxx XxXxxxxxxxxx
----------------------------------------------------------------------------------------------------------------------
002068 BC197232545 Gateway Laptop (Old Model) Xxxxx XxXxxxxxxxxx
----------------------------------------------------------------------------------------------------------------------
002073 007866968 Gateway P266 - LPMI Tower Xxxxx Xxxxxxxx
----------------------------------------------------------------------------------------------------------------------
002074 0007866968 Gateway 2000 - 266 Desktop Xxxx Xxxxx
----------------------------------------------------------------------------------------------------------------------
002077 BG8BN Dell M200 - MMS Xxxxx Xxxxxxxx
----------------------------------------------------------------------------------------------------------------------
002085 0007990908 Gateway Solo 2200 Laptop Xxxx Xxxxxxx
----------------------------------------------------------------------------------------------------------------------
002089 0008138058 Gateway 2000 - 266 Desktop Xxxxx Xxxxx
----------------------------------------------------------------------------------------------------------------------
002101 HD098030649 Gateway Laptop (Old Model) Xxxxx XxXxxxxxxxxx
----------------------------------------------------------------------------------------------------------------------
002106 CC3SV Dell Latitude 233 Laptop Xxxxx Xxxxxxxx
----------------------------------------------------------------------------------------------------------------------
002143 00060888-12800-83T-0417 Dell Latitude 233 Laptop Xxxx Xxxxxxx
----------------------------------------------------------------------------------------------------------------------
002154 0009321C-12800-841-0307 Gateway Solo 2200 Laptop Xxxxxxx Xxxxxxxxx
----------------------------------------------------------------------------------------------------------------------
002156 000-9321C-12800-85G Dell Latitude 233 Laptop Xxxx Xxxxxxxx
----------------------------------------------------------------------------------------------------------------------
002172 0009321C-12800-861-3129 Dell Latitude 233 Laptop Xxx Xxxxxxxx
----------------------------------------------------------------------------------------------------------------------
002183 G5DF2 Dell Dimension 400 Desktop Xxxx Xxxxxxxxxx
----------------------------------------------------------------------------------------------------------------------
002196 G5DF3 Dell Dimension 400 Desktop Foster Bass
----------------------------------------------------------------------------------------------------------------------
002197 X0XX0 Xxxx Xxxxxxxxx 000 Xxxxxxx Xxxxx Xxxxxxx
----------------------------------------------------------------------------------------------------------------------
002199 G5DF4 Dell Dimension 400 Desktop Carter Communale
----------------------------------------------------------------------------------------------------------------------
002244 ZFL69 Dell Latitude 233 Laptop Xxxxx Xxxx
----------------------------------------------------------------------------------------------------------------------
002224 XA840236DLU Apple G3-350 Desktop Xxxxxxx Xxxxxx
----------------------------------------------------------------------------------------------------------------------
002612 000669021280081H118 Dell Latitude 233 Laptop Xxxx Xxxxx
----------------------------------------------------------------------------------------------------------------------
Missing 0006392596 Gateway P5 166 - ATX Tower Xxxxx Xxxxxxxx
----------------------------------------------------------------------------------------------------------------------
Missing TB3X6-HDJWP-XC9PC- (Generic Clone) 233 Desktop Xxxx Xxxxxxxxx
II374Y-HHWQ3
----------------------------------------------------------------------------------------------------------------------
Exhibit DDD
-----------
Trademarks: "BUYINGEDGE" - Serial Number 75/671876
---------- Application Filing Date: March 31, 1999
"VENDOREDGE" - Serial Number 75/671877
Application Filing Date: March 31, 1999
Domain Name Registrations:
-------------------------
XXXXXXXXXX.XXX XXXXXX-XXXX.XXX
XXXXXXXXXX.XXX XXXXXXX.XXX
XXXXXXXXXX.XXX XXX-XXXX.XXX
XXXXXXXXXXX.XXX XXX-XXXX.XXX
XXXXXXXXXXXXXXX.XXX XXX-XXXX.XXX
XXXXXXXXXXXXXXX.XXX XXXXXXXXX.XXX
XXXXXXXXXXXXXXX.XXX XXXXXXXXX.XXX
XXXXXXXXXXXXXXX.XXX XXXXXXXXXX.XXX
XXXXXXXXXX-XXXXX.XXX XXXXXXXXXX.XXX
XXXXXXXXXX-XXXXX.XXX XXXXXXXXXX.XXX
XXXXXXXXXX-XXXXX.XXX XXXXXXXXXX.XXX
XXXXXXXXXXXXXXX.XXX XXXXXX-XXXX.XXX
XXXXXXXXXXXXXXX.XXX XXXXXX-XXXX.XXX
XXXXXXXXXX.XXX XXXXXX-XXXX.XXX
XXXXXXXXXX.XXX XXXXXXX.XXX
XXXXXXXXXX.XXX XXXXXXXXXXX.XXX
XXXXXX-XXXX.XXX XXXXXXXXXXX.XXX
XXXXXX-XXXX.XXX
Exhibit E
---------
MarketNet Contracts
1. Independent Contractor Services Agreement between IMA and Digitools,
Inc. effective October 1, 1997, and IMA's interest in said contract
was transferred to MarketNet as of December 31, 1997.
2. Development Agreement between American Business Information, Inc. and
IMA. effective December 16, 1997, and IMA's interest in said contract
was transferred to MarketNet as of December 31, 1997.
3. American Business Information License Agreement between American
Business Information, Inc. and Information Management Associates, Inc.
dated December 12, 1997, and IMA's interest in said contract was
transferred to MarketNet as of December 31, 1997.
Exhibit F
---------
MarketNet Products
1. Computer software code for Query processing based search engine based on
industry codes.
Exhibit G
---------
Form of IMA Assignment and Assumption Agreement
Exhibit H
---------
Form of MarketNet Assignment and Assumption Agreement
Exhibit I
---------
Form of Software Licensing, Marketing and Noncompetition Agreement
Exhibit J
---------
Form of Registration Rights Agreement
Exhibit K
---------
Form of Services Agreement
Exhibit L
---------
Form of Space Sharing Agreement
