EXHIBIT 10.9
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ASSET PURCHASE AGREEMENT
BY AND AMONG
LOGIC WORKS, INC.,
INFOSTRUCTURES, INC.,
XXXX XXXXXXXX
AND
XXXXXXXX XXXXXX
DATED SEPTEMBER 30, 1996
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TABLE OF CONTENTS
PAGE
ARTICLE I PURCHASE AND SALE OF ASSETS . . . . . . . . . . . . . . . . . . 1
Section 1.1 Assets to be Acquired . . . . . . . . . . . . . . . . . . 1
Section 1.2 Liabilities Assumed . . . . . . . . . . . . . . . . . . . 2
Section 1.3 Liabilities Not Assumed . . . . . . . . . . . . . . . . . 2
ARTICLE II PURCHASE PRICE . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 2.1 Consideration . . . . . . . . . . . . . . . . . . . . . . 2
Section 2.2 Payment of Purchase Price . . . . . . . . . . . . . . . . 2
ARTICLE III REPRESENTATIONS AND WARRANTIES. . . . . . . . . . . . . . . . 3
Section 3.1 Representations of Seller and the Stockholders. . . . . . 3
Section 3.2 Representations of Buyer. . . . . . . . . . . . . . . . . 6
ARTICLE IV COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 4.1 Confidentiality Disclosure. . . . . . . . . . . . . . . . 7
Section 4.2 Non-Competition . . . . . . . . . . . . . . . . . . . . . 8
Section 4.3 Technology Transfer . . . . . . . . . . . . . . . . . . . 8
Section 4.4 Publicity . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 4.5 Closing Conditions. . . . . . . . . . . . . . . . . . . . 9
Section 4.6 Waiver of Compliance with Bulk Transfer Requirements. . . 9
ARTICLE V CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 5.1 Closing . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 5.2 Deliveries by Seller and the Stockholders . . . . . . . . 9
Section 5.3 Deliveries by Buyer . . . . . . . . . . . . . . . . . . . 10
Section 5.4 Further Assurances. . . . . . . . . . . . . . . . . . . . 10
ARTICLE VI CONDITIONS PRECEDENT TO OBLIGATIONS. . . . . . . . . . . . . . 10
Section 6.1 Conditions to Obligations of Buyer. . . . . . . . . . . . 10
Section 6.2 Conditions to Obligations of Seller and the
Stockholders. . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE VII INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . 12
Section 7.1 Survival of Representations, Warranties and
Agreements. . . . . . . . . . . . . . . . . . . . . . . . 12
Section 7.2 Indemnification . . . . . . . . . . . . . . . . . . . . . 12
Section 7.3 Procedure for Indemnification with Respect to
Third-Party Claims. . . . . . . . . . . . . . . . . . . . 13
Section 7.4 Procedure For Indemnification with Respect to
Non-Third Party Claims. . . . . . . . . . . . . . . . . . 14
ARTICLE VIII TERMINATION. . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 8.1 Termination by any Party. . . . . . . . . . . . . . . . . 14
ARTICLE IX MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . . . . 15
Section 9.1 Notice. . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 9.2 Binding Effect; Assignment. . . . . . . . . . . . . . . . 15
Section 9.3 Captions. . . . . . . . . . . . . . . . . . . . . . . . . 16
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Section 9.4 Expenses of Transaction; Taxes. . . . . . . . . . . . . . 16
Section 9.5 Waiver; Consent . . . . . . . . . . . . . . . . . . . . . 16
Section 9.6 No Third-Party Beneficiaries. . . . . . . . . . . . . . . 16
Section 9.7 Counterparts. . . . . . . . . . . . . . . . . . . . . . . 16
Section 9.8 Gender. . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 9.9 Severability. . . . . . . . . . . . . . . . . . . . . . . 16
Section 9.10 Remedies of Buyer. . . . . . . . . . . . . . . . . . . . 16
Section 9.11 Governing Law. . . . . . . . . . . . . . . . . . . . . . 17
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EXHIBITS
Exhibit A Form of Promissory Note
Exhibit B Form of Employment Agreement
SCHEDULES
Schedule 1.1(b) Assigned Contracts
Schedule 1.1(c) Trademarks, Copyrights, Etc.
Schedule 3.1(c) Third Party Proprietary Rights
Schedule 5.2(e) Opinion of Xxxxxxxxxxxx Xxxx & Xxxxxxxxx -- Subject
Matter
Schedule 5.3(e) Opinion of Xxxxxxx, Phleger & Xxxxxxxx LLP - Subject
Matter
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ASSET PURCHASE AGREEMENT
THIS AGREEMENT, dated as of September 30, 1996, by and among Logic
Works, Inc., a Delaware corporation ("Buyer"), InfoStructures, Inc., a Delaware
corporation ("Seller") and Xxxx Xxxxxxxx and Xxxxxxxx Xxxxxx, the sole
stockholders of Seller (collectively, the "Stockholders").
BACKGROUND
A. The Seller is engaged in the business of providing software
consulting services to third parties. The Stockholders are the officers,
directors and sole stockholders of the Seller. In the course of their
activities for the Seller, the Stockholders have developed a test data
generation tool software program known as "TESTBYTES."
B. The Buyer is engaged in the business of providing client/server
database design and business process modeling software.
C. The Buyer wishes to acquire all right, title and interest in and
to the TESTBYTES Software (as defined below) as more fully described below and
to further develop and market such software either on a stand-alone basis or
incorporated into one or more of the Buyer's software products.
D. The Buyer wishes to engage each of the Stockholders as an
employee of the Buyer and each of the Stockholders desires to be so employed
following the Closing (as defined below) under this Agreement.
NOW, THEREFORE, in consideration of the representations, warranties,
covenants, agreements and conditions set forth in this Agreement and other good
and valuable consideration, the sufficiency of which is hereby acknowledged, the
parties agree as follows:
ARTICLE I PURCHASE AND SALE OF ASSETS
SECTION I.1 ASSETS TO BE ACQUIRED. Upon the terms and subject to the
conditions set forth in this Agreement, at the Closing (as defined in Section
5.1), Seller agrees to convey, sell, transfer, assign and deliver to Buyer, and
Buyer shall purchase from Seller, all right, title and interest, either owned or
transferable by Seller, existing now or at any time hereafter through the
Closing in and to the following assets (collectively, the "Assets"):
a. All right, title and interest in and to the following
(collectively referred to as the "TESTBYTES Software"): (i) all of the computer
programs constituting Version 2.0 of the test data generation tool software
known as "TESTBYTES" and any computer programs constituting versions of such
software that predate TESTBYTES 2.0; (ii) all forms of expression of the
foregoing including but not limited to object code versions, source code
versions, master tapes, development documentation and technical specifications
relating thereto; (iii) any user manuals or drafts thereof relating to such
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software; and (iv) all computer programs, software, source code, documentation
and similar and related items of any nature under development by the Seller or
the Stockholders as currently exists on the date of execution of this Agreement
and at the Closing relating to such software, including but not limited to
development work in connection with Version 3.0 of TESTBYTES;
b. The rights, benefits and obligations under the contracts listed
on Schedule 1.1(b) hereto (the "Assigned Contracts"); and
c. All U.S. and foreign patents, U.S. trademarks, copyrights,
including applications therefor and any rights thereto, and all trade secrets
and goodwill related to the TESTBYTES Software, including without limitation any
patents, trademarks and copyrights and applications therefor listed on SCHEDULE
1.1(c) hereto.
No assets of the Seller or the Stockholders other than the Assets
described in this Section 1.1 will be transferred to Buyer pursuant to this
Agreement.
SECTION I.2 LIABILITIES ASSUMED. Buyer agrees to assume at Closing
and be responsible only for the liabilities of the Company arising after Closing
under the Assigned Contracts (the "Assumed Liabilities").
SECTION I.3 LIABILITIES NOT ASSUMED. Except for the Assumed
Liabilities, Buyer shall not, by the execution, delivery and performance of this
Agreement, or otherwise, assume or otherwise be responsible for any liability or
obligation of any nature, or claims of such liability or obligation of Seller,
matured or unmatured, liquidated or unliquidated, fixed or contingent, or known
or unknown, whether arising out of acts or occurrences prior to, at or after the
date hereof.
ARTICLE II PURCHASE PRICE
SECTION II.1 CONSIDERATION. Upon the terms and subject to the
conditions contained in this Agreement and in consideration for the Assets,
Buyer will assume the Assumed Liabilities at the Closing (as defined in Section
5.1) and will pay the purchase price (the "Purchase Price") set forth in Section
2.2 as provided in Section 2.2.
SECTION II.2 PAYMENT OF PURCHASE PRICE. The Purchase Price for the
Assets shall be One Million Five Hundred Thousand Dollars ($1,500,000),
consisting of:
a. One Million Dollars ($1,000,000) (the "Cash Payment")
payable one day following the Closing by wire transfer of immediately available
funds to the Seller's account as provided in written instructions from the
Seller; and
b. A one-year promissory note delivered at the Closing in favor
of the Seller or order in the principal amount of Five Hundred Thousand Dollars
($500,000), bearing interest at a rate of 6.02% per annum, in the form of
EXHIBIT A to this Agreement (the "Note").
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ARTICLE III REPRESENTATIONS AND WARRANTIES
SECTION III.1 REPRESENTATIONS OF SELLER AND THE STOCKHOLDERS. Seller
and each of the Stockholders hereby represents and warrants to Buyer, jointly
and severally, that:
a. ORGANIZATION. Seller is a corporation duly incorporated,
validly existing and in good standing under the laws of the State of Delaware
and has all requisite power and authority to conduct its business in the places
where such business is now conducted. The Stockholders collectively own all of
the authorized and issued capital stock of Seller.
b. AUTHORIZATION. Seller has full corporate power and
authority to enter into this Agreement, the other Seller Closing Documents (as
defined below), to perform its obligations hereunder and thereunder and to
consummate the transactions contemplated hereby and thereby, including, without
limitation, the execution and delivery of this Agreement, the Note, general
conveyances, bills of sale, assignments, and other documents and instruments
evidencing the conveyance of the Assets or executed and delivered in accordance
with Section 5.2 hereunder or otherwise in connection with the transactions
contemplated hereby (collectively, the "Seller Closing Documents"). This
Agreement and each of the other Seller Closing Documents have been duly
authorized, executed and delivered by, and constitute valid and binding
obligations of Seller and the Stockholders, as applicable, enforceable in
accordance with their terms, except as limited by applicable bankruptcy,
insolvency, moratorium, reorganization and other laws affecting creditors'
rights generally and by general principles of equity.
c. OTHER LIABILITIES. Except for the Assigned Contracts and
the software, contracts and objection set forth on Schedule 3.1(c) (the "Third
Party Proprietary Rights"), there are no debts, liabilities or obligations with
respect to Seller or the Stockholders to which the Assets are subject, whether
liquidated, unliquidated, accrued, absolute, contingent or otherwise.
d. TAXES. Seller and the Stockholders hereby affirm to Buyer
that all taxes, including without limitation, income, property, sales, use,
franchise, added value, withholding, and social security taxes, imposed by the
United States, any state, municipality, other local government or other
subdivision or instrumentality of the United States, or any foreign country or
any state or other government thereof, or any other taxing authority, that are
due or payable by Seller or the Stockholders with respect to the Assets, and all
interest and penalties thereon, whether disputed or not, and which would result
in the imposition of a lien, claim or encumbrance on the Assets or against
Buyer, other than taxes which are not yet due and payable, have been paid in
full, all tax returns required to be filed in connection therewith have been
accurately prepared and duly and timely filed and all deposits required by law
to be made by Seller with respect to employees' withholding taxes have been duly
made.
e. COMPLIANCE WITH LAW. Seller has complied and is in
compliance with all applicable federal, state and local laws, statutes,
licensing requirements, rules and regulations, and judicial or administrative
decisions applicable to the Assets. There is no order issued, investigation or
proceeding pending or threatened, or notice served with respect to any violation
of any law, ordinance, order, writ, decree, rule or regulation issued by any
federal, state, local or foreign court or governmental agency or instrumentality
applicable to the Assets.
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f. GOVERNMENTAL CONSENTS. No consent, approval, order or
authorization of, or registration, qualification, designation, declaration or
filing with any federal, state or local governmental authority on the part of
Seller or the Stockholders is required in connection with the consummation of
the transactions contemplated hereunder or under any of the other Seller Closing
Documents.
g. PROPRIETARY RIGHTS. Except for the Third Party Proprietary
Rights, Seller is the sole owner of all right, title and interest in and to the
TESTBYTES Software and the rights described in Section 1.1(c) (collectively, the
"Technology"), free and clear of all liens, encumbrances, licenses, claims,
rights of use and restrictions whatsoever. Except for the Assigned Contracts
and the Third Party Proprietary Rights, (i) there are no outstanding options,
licenses, sublicenses or agreements of any kind relating to the Technology nor
are there any options, licenses, sublicenses or agreements of any kind with
respect to the patents, trademarks, trade names, copyrights, trade secrets,
rights, or other intellectual property or other proprietary rights of any other
person or entity which relate to the Assets and (ii) there has been no
disposition, license, sublicense or disclosure of the Technology or any portion
thereof.
To the best knowledge of Seller and each of the Stockholders, neither
the Technology nor anything used in connection with the Assets (other than the
Third Party Proprietary Rights), now or in the past, infringes or infringed or
will infringe upon any rights or intellectual property of any other person,
firm, corporation or other entity and no one has disputed (or has a basis to
dispute) the right, title or interest of the Seller in and to the Technology.
There is not pending or threatened any claim or litigation against Seller or
either of the Stockholders contesting the right of Seller or the Stockholders to
use the Technology or anything else used in connection with the Assets. Neither
the Seller nor either of the Stockholders is aware of any facts which would
invalidate or render unenforceable any of the patent rights, trademark rights or
copyrights listed on SCHEDULE 1.1.(c).
The documentation included in the Technology is current, accurate and
sufficient in detail and content to identify it and permit its full and proper
use by Buyer without reliance on the special knowledge of others. Except for
the Third Party Proprietary Rights, no portion of the TESTBYTES Software is
subject to any legal or contractual restriction that would prevent such software
from being licensed, sublicensed, marketed, incorporated in other software,
modified or otherwise transferred or sold by the Buyer after the Closing.
Seller has taken reasonable security measures to protect the secrecy,
confidentiality and value of the Technology. Any employee or other person who,
either alone or in concert with others, developed, invented, discovered,
derived, programmed or designed any of the Technology or any part thereof, or
who has knowledge of or access to information relating to it, has been put on
notice that the Technology is proprietary to Seller and not to be divulged or
misused, has assigned all of his or her rights relating to the Technology to
Seller and has executed a proprietary information and assignment of inventions
agreement to such effect (all of which such agreements have been delivered to
Buyer). No claim of ownership or legal title or interest in or with respect to
the Technology by or against any employee who had access to the Technology has
been made or now exists and neither the Seller nor the Stockholders know of any
basis for any such claims. No third party has access to the source code
versions of the TESTBYTES Software (other than the Third Party Proprietary
Rights) or is otherwise in a position to duplicate or make any unauthorized use
of such source code versions.
h. RESTRICTIVE DOCUMENTS OR ORDERS. Neither Seller nor either
of the Stockholders is a party to or bound under any agreement, contract, order,
judgment or decree, or any
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similar restriction not of general application which materially adversely
affects, or reasonably could be expected to materially adversely affect the
consummation of the transactions contemplated by this Agreement or the Seller
Closing Documents.
i. CONTRACTS AND COMMITMENTS. Except for the Assigned
Contracts and the Third Party Proprietary Rights, there are no contracts,
commitments, leases, permits, and other instruments (written or oral) binding
upon Seller with respect to the Assets. Seller and the Stockholders have
delivered to Buyer true and complete copies of the Assigned Contracts and the
license agreements relating to the Third Party Proprietary Rights, which have
not been modified, amended or rescinded in any respect. Seller is not in
violation of its Certificate of Incorporation or By-laws or in default (nor has
there occurred an event or condition which, with the passage of time or giving
of notice or both, would constitute a default), with respect to the payment or
performance of any obligation under the Assigned Contracts; and no claim of such
a default has been asserted and there is no basis or alleged basis upon which
such a claim could be made. Seller has not received any notice or notices
claiming any such default or indicating the desire or intention of any other
party thereto to amend, modify, rescind or terminate the same.
j. TITLE TO THE ASSETS. Seller has good and marketable title
to the Assets, free and clear of all easements, mortgages, pledges, liens,
encumbrances, security interests, equities, charges, claims, clouds and
restrictions of any nature whatsoever (collectively, "Liens"). By virtue of the
deliveries made at the Closing, Buyer will obtain good and marketable title to
the Assets, free and clear of all Liens.
k. LITIGATION. There is no claim, litigation, action, suit or
proceeding, administrative or judicial, pending or, to the best of Seller's or
either of the Stockholders' knowledge, threatened against Seller involving or
affecting the Assets, at law or in equity, before any federal, state, local or
foreign court or regulatory agency, or other governmental or arbitral authority
which could have a material adverse effect on (i) the consummation of the
transactions contemplated by this Agreement and the other Seller Closing
Documents, or (ii) the Assets. To the best of Seller's or the Stockholders'
knowledge, there is no basis or alleged basis upon which such claim, litigation,
action, suit or proceeding could be brought or initiated.
l. NO CONFLICT OR DEFAULT. Neither the execution and delivery
of this Agreement or any of the other Seller Closing Documents, nor compliance
with the terms and provisions hereof or thereof, including without limitation,
the consummation of the transactions contemplated hereby or thereby, will
violate any statute, regulation or ordinance of any governmental authority, or
conflict with or result in the breach of any term, condition or provision of the
Certificate of Incorporation or Bylaws of Seller or of any agreement, deed,
contract, mortgage, indenture, writ, order, decree, legal obligation or
instrument to which Seller or either of the Stockholders is a party or by which
any of them or any of the Assets are or may be bound, or constitute a default
(or an event which, with the lapse of time or the giving of notice, or both,
would constitute a default) thereunder, or result in the creation or imposition
of any lien, charge, encumbrance or restriction of any nature whatsoever with
respect to any of the Assets, or give to others any interest or rights,
including rights of termination, acceleration or cancellation in or with respect
to the Assets.
m. THIRD PARTY CONSENTS. No consent, approval, or
authorization of any third party on the part of Seller or either of the
Stockholders is required in connection with the consummation of the transactions
contemplated hereunder or under any of the other Seller Closing Documents.
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n. BROKERS' AND FINDERS' FEES. Neither Seller nor either of
the Stockholders is obligated to pay any fees or expenses of any broker or
finder in connection with the origin, negotiation or execution of this
Agreement or the other Seller Closing Documents or in connection with any
transactions contemplated hereby or thereby.
o. COMPLETE DISCLOSURE. No representation or warranty by
Seller or either of the Stockholders in this Agreement, and no exhibit,
schedule, statement, certificate or other writing furnished to Buyer pursuant to
or in connection with this Agreement or the other Seller Closing Documents or in
connection with the transactions contemplated hereby or thereby, contains or
will contain any untrue statement of a material fact or omits or will omit to
state a material fact necessary to make the statements contained herein and
therein not misleading.
SECTION III.2 REPRESENTATIONS OF BUYER. Buyer hereby represents to
Seller and the Stockholders that:
a. ORGANIZATION. Buyer is a corporation duly incorporated,
validly existing and in good standing under the laws of the State of Delaware.
b. AUTHORIZATION. Buyer has full corporate power and authority
to enter into this Agreement, the Employment Agreements (as defined in Section
5.2) and the other documents executed and delivered by Buyer in connection with
the transactions contemplated hereby (collectively, the "Buyer Closing
Documents"), to perform its obligations hereunder and thereunder and to
consummate the transactions contemplated hereby. The Buyer Closing Documents
have been duly authorized, executed and delivered by Buyer and constitute the
valid and binding obligations of Buyer enforceable in accordance with their
terms, except as limited by applicable bankruptcy, insolvency, moratorium,
reorganization or other laws affecting creditors' rights and by general
principles of equity.
c. ANNUAL AND QUARTERLY REPORTS. Buyer has furnished to Seller
true and complete copies of its Annual Report on Form 10-K filed with the
Securities and Exchange Commission (the "SEC") for the fiscal year ended
December 31, 1995 and of its Quarterly Reports on Form 10-Q filed with the SEC
for the quarters ended March 31, 1996 and June 30, 1996 (the "Buyer Reports").
Each of the balance sheets included in the Buyer Reports (including any related
notes and schedules) fairly presents the consolidated financial position of
Buyer and its subsidiaries as of its date and the other financial statements
included in the Buyer Reports (including any related notes and schedules) fairly
present the consolidated results of operations or other information included
therein of Buyer and its subsidiaries for the periods or as of the dates therein
set forth, subject, where appropriate, to normal year-end adjustments, in each
case in accordance with generally accepted accounting principles consistently
applied during the periods involved (except as otherwise stated therein).
d. COMPLIANCE WITH OTHER INSTRUMENTS. Buyer's execution and
delivery of the Buyer Closing Documents, the consummation of the transactions
contemplated hereby and thereby and the compliance with the terms hereof and
thereof by it do not, or as of the Closing will not, violate any provisions of
its Certificate of Incorporation or Bylaws, or conflict with or result in a
breach of any terms of, or constitute a default under any material agreement,
obligation or instrument to which it is a party or by which it is bound.
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e. CONSENTS. To Buyer's knowledge, no consent, approval, order
or authorization of registration, qualification, designation, declaration or
filing with any federal, state or local governmental authority or any third
party is required by Buyer in connection with the consummation of the
transactions contemplated hereunder or under the Buyer Closing Documents.
f. BROKER FEES. Buyer is not obligated to pay any fees or
expenses of any broker or finder in connection with the origin, negotiation or
execution of this Agreement or in connection with any of the transactions
contemplated hereby.
g. COMPLETE DISCLOSURE. No representation or warranty by Buyer
in this Agreement, and no exhibit, schedule, statement, certificate or other
writing furnished to Seller or the Stockholders pursuant to or in connection
with this Agreement or the other Buyer Closing Documents or in connection with
the transactions contemplated hereby or thereby, contains or will contain any
untrue statement of a material fact or omits or will omit to state a material
fact necessary to make the statements contained herein and therein not
misleading.
ARTICLE IV COVENANTS
SECTION IV.1 CONFIDENTIALITY DISCLOSURE.
a. Seller and the Stockholders shall keep confidential and will
not, without the prior written consent of Buyer, disclose to any party other
than to the officers, directors, employees, shareholders and counsel of Seller
or either of the Stockholders (collectively, the "Seller Representatives") who
have a reason to review such information in connection with the transactions
contemplated hereby: (i) any information regarding the terms of this Agreement
and the other Seller Closing Documents and the transactions contemplated hereby
and thereby; or (ii) any information regarding Buyer which they receive pursuant
to the terms of this Agreement and the other Buyer Closing Documents; PROVIDED,
HOWEVER, that the obligation hereunder to maintain confidentiality does not
apply to information which (1) is or becomes generally available to the public
other than as a result of a disclosure by Seller, either of the Stockholders or
the Seller Representatives, (2) was available to Seller, either of the
Stockholders or the Seller Representatives on a non-confidential basis prior to
its disclosure by Buyer, (3) becomes available to Seller, either of the
Stockholders or the Seller Representatives from a person other than Buyer who is
not otherwise known by Seller, either of the Stockholders or any of the Seller
Representatives to be bound by a confidentiality agreement, or (4) is required
to be disclosed to lenders or pursuant to any law, rule or regulation or
pursuant to any order or decree of any appropriate court or governmental agency.
b. Buyer shall keep confidential and will not, without the
prior written consent of Seller, disclose to any party other than to the
officers, directors, employees, shareholders and counsel of Buyer (collectively,
the "Buyer Representatives") who have a reason to review such information in
connection with the transactions contemplated hereby; (i) any information
regarding the terms of this Agreement and the Buyer Closing Documents and the
transactions contemplated hereby and thereby, or (ii) any information regarding
Seller's business, which it receives pursuant to the terms of this Agreement and
the other Seller Closing Documents; PROVIDED, HOWEVER, that the obligation
hereunder to maintain confidentiality does not apply to information which (1) is
or becomes generally available to the public other than as a result of a
disclosure by Buyer or the Buyer Representatives, (2) was available to Buyer or
the Buyer Representatives on a non-confidential basis prior to its disclosure by
Seller and the Stockholders, (3) becomes available to Buyer or the Buyer
Representatives from a
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person other than Seller or either of the Stockholders who is not otherwise
known by Buyer or any of the Buyer Representatives to be bound by a
confidentiality agreement, or (4) is required to be disclosed to lenders or
pursuant to any law, rule or regulation or pursuant to any order or decree of
any appropriate court or governmental agency.
c. In the event that the transactions contemplated by this
Agreement are not consummated, Seller and the Seller's Representatives and Buyer
and the Buyer's Representatives will each return to the other all documents,
work papers and other material (including all copies made thereof) obtained from
the other at any time in connection with the transactions contemplated hereby
and will keep confidential any such information so obtained unless such
information is ascertainable from published information or available from
another source.
SECTION IV.2 NON-COMPETITION.
IV.2.1. The following is deemed critical to Buyer's decision to
acquire the Assets and to consummate the other transactions contemplated by this
Agreement. Commencing on the date of Closing and continuing for a period of
four (4) years thereafter (the "Effective Period"), neither of the Stockholders
shall engage, directly or indirectly, whether on his own account or as a
stockholder, partner, joint venture, and/or agent, of any person, firm,
corporation or other entity, in any or all of the following activities in the
State in which Seller has been doing business prior to the date of this
Agreement and throughout the remainder of the United States and the world:
a. Enter into or engage in any activity in or in support of the
development and marketing of test data generation tools;
b. Solicit customers or business patronage which results in
competition with Buyer or any of its affiliates in or in support of the
development and marketing of test data generation tools; or
c. Promote or assist, financially or otherwise, any person,
firm, association, corporation or other entity to engage in any activity in or
in support of the development and marketing of test data generation tools.
IV.2.2. Without limitation, the parties agree and intend that the
covenants contained in this Section 4.2 shall be deemed to be a series of
separate covenants and agreements, one for each and every county of each state
and each political subdivision of the United States and each other nation to
which this Agreement is applicable. If, in any judicial proceeding, a court
shall refuse to enforce in such action any or all of the separate covenants
deemed included herein, then at the option of the Buyer, unenforceable covenants
shall be deemed modified or eliminated from the provisions hereof for the
purpose of such proceeding to the minimum extent necessary to permit the
remaining separate covenants to be enforced in such a proceeding to the maximum
possible extent.
IV.2.3. The parties further agree that damages at law for violation
of this Section 4.2. would not be an adequate remedy and that if the Seller or
either of the Stockholders violates any of the provisions of this Section 4.2.,
the Buyer and its successors and assigns shall be entitled to obtain a temporary
or permanent injunction against such entity or person in any court having
jurisdiction, prohibiting any further violation of any of the covenants
contained in this Section 4.2. Such right shall be in addition to any right to
seek damages for such violation.
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SECTION IV.3 TECHNOLOGY TRANSFER. In addition to delivering all
tangible manifestations of the Assets at the Closing, each of the Stockholders
agree to fully cooperate with Buyer following the Closing to fully understand
and maximize Buyer's understanding of and facility with the Assets.
SECTION IV.4 PUBLICITY. The parties agree that any press release or
other public documents concerning the transactions contemplated by this
Agreement shall be subject to the review and approval of the Seller and the
Stockholders (except for any disclosures which counsel for Seller advises Seller
are required by law to be disclosed).
SECTION IV.5 CLOSING CONDITIONS. Each party agrees to use best
efforts to satisfy the conditions to the other parties' obligations at Closing.
In this regard, but without limiting the foregoing, Seller and the Stockholders
each agree to fully cooperate with Buyer and its advisors in their due diligence
efforts.
SECTION IV.6 WAIVER OF COMPLIANCE WITH BULK TRANSFER REQUIREMENTS.
Seller and the Stockholders jointly and severally agree: (a) to pay and
discharge as they become due all liabilities and obligations to creditors of
Seller, including, without limitation, accounts payable relating to Seller's
business, under or pursuant to any Bulk Transfer Act or Acts or similar laws or
otherwise against Buyer as the transferee of the Assets; and (b) to indemnify
and hold Buyer harmless from and against any failure by the Seller to obtain the
protections afforded by compliance with the notification and other requirements
of Article 6 of the Uniform Commercial Code of the State of Illinois as and to
the extent applicable to Buyer or the transactions contemplated by this
Agreement.
ARTICLE V CLOSING
SECTION V.1 CLOSING. The transactions contemplated by this Agreement
shall be completed at 2:00 p.m., New York City time, on September 30, 1996 (the
"Closing"). The Closing shall take place at the offices of Xxxxxxx, Xxxxxxx &
Xxxxxxxx LLP, New York, New York or at such other place or date as may be agreed
upon from time to time in writing by Buyer and Seller. The "Closing" shall mean
the deliveries to be made by Buyer and Seller at the Closing in accordance with
this Agreement.
SECTION V.2 DELIVERIES BY SELLER AND THE STOCKHOLDERS. At the
Closing, Seller and/or either of the Stockholders shall deliver to Buyer, all
duly and properly executed, the following:
a. A good and sufficient xxxx of sale, in form and substance
reasonably satisfactory to Buyer, selling, delivering, transferring and
assigning to Buyer all right, title and interest to the Assets, free and clear
of all mortgages, pledges, liens, encumbrances, security interests, equities,
charges, clouds and restrictions of any nature whatsoever, except as otherwise
provided herein (the "Xxxx of Sale").
b. An assignment of the trademark "TESTBYTES" and an assignment
of the copyright to the TESTBYTES Software, in form and substance reasonably
satisfactory to Buyer.
c. All physical manifestations of the TESTBYTES Software,
including without limitation any master discs, object code versions and source
code versions.
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d. Employment Agreements, substantially in the form of EXHIBIT
B to this Agreement, between the Buyer and each of the Stockholders (the
"Employment Agreements").
e. An opinion of Xxxxxxxxxxxx Xxxx & Xxxxxxxxx, counsel to
Seller and the Stockholders, dated the date of the Closing, covering the subject
matter set forth in Schedule 5.2(e).
f. The certificate described in Section 6.1(h).
g. A good and sufficient assignment, in form and substance
reasonably satisfactory to Buyer, assigning all of Seller's rights, benefits and
obligations under the Assigned Contracts to Buyer (the "Assignment").
h. Such other separate instruments of sale, assignment or
transfer that Buyer may reasonably deem necessary or appropriate in order to
perfect, confirm or evidence in Buyer title to all or any part of the Assets.
SECTION V.3 DELIVERIES BY BUYER. At the Closing, Buyer shall deliver
to Seller the following:
a. The Cash Payment in accordance with Section 2.2(a).
b. The Note in accordance with Section 2.2(b).
c. The certificate described in Section 6.2(c).
d. The Employment Agreements between the Buyer and each of the
Stockholders.
e. An opinion of Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP, counsel to
Buyer, dated the date of the Closing, covering the subject matter set forth in
Schedule 5.3(e).
f. The Xxxx of Sale.
g. The Assignment.
h. Each other Buyer Closing Document.
ARTICLE VI CONDITIONS PRECEDENT TO OBLIGATIONS
SECTION VI.1 CONDITIONS TO OBLIGATIONS OF BUYER. Each and every
obligation of Buyer to be performed at or after the Closing shall be subject to
the satisfaction as of or before the Closing of the following conditions (unless
waived in writing by Buyer):
a. REPRESENTATIONS AND WARRANTIES. The representations and
warranties set forth in Section 3.1 of this Agreement shall have been true and
correct at and as of the Closing.
b. SCHEDULES. The Schedules referred to in this Agreement
shall have been completed and provided to Buyer and shall be in form and
substance satisfactory to Buyer.
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c. PERFORMANCE OF AGREEMENT. All covenants, conditions and
other obligations under this Agreement which are to be performed or complied
with by Seller and the Stockholders shall have been fully performed and complied
with at or prior to the Closing, including the delivery of the instruments and
documents in accordance with Section 5.2.
d. ABSENCE OF GOVERNMENTAL OR OTHER OBJECTION. There shall be
no pending or threatened lawsuit challenging the transaction by any body or
agency of the federal, state or local government or by any third party, and the
consummation of the transaction shall not have been enjoined by a court of
competent jurisdiction as of the Closing.
e. OPINION OF COUNSEL. Seller and the Stockholders shall have
delivered to Buyer an opinion of counsel for Seller as to the matters set forth
on Schedule 5.2(e).
f. EMPLOYMENT AGREEMENTS AND OTHER DOCUMENTS. Each of the
Stockholders shall have executed and delivered an Employment Agreement with the
Buyer. The parties thereto (other than Buyer) shall have executed and delivered
the other Seller Closing Documents.
g. EVIDENCE OF TITLE. Buyer shall have received evidence, at
or prior to the Closing, satisfactory to it of Seller's title to all of the
Assets and right to fully convey all Assets free and clear of any lien,
encumbrances, restrictions on transfer or the like.
h. CERTIFICATE. Seller shall have delivered to Buyer a
certificate executed by its President, dated the date of the Closing, to the
effect that the conditions set forth in subsections (a) and (c) of this Section
6.1, have been satisfied.
i. APPROVAL OF DOCUMENTATION. The form and substance of all
certificates, instruments, opinions and other documents delivered or to be
delivered to Buyer under this Agreement shall be satisfactory to Buyer and its
counsel in all respects.
SECTION VI.2 CONDITIONS TO OBLIGATIONS OF SELLER AND THE
STOCKHOLDERS. Each and every obligation of Seller and the Stockholders to be
performed at the Closing shall be subject to the satisfaction as of or before
such time of the following conditions (unless waived in writing by Seller):
a. REPRESENTATIONS AND WARRANTIES. Buyer's representations and
warranties set forth in Section 3.2 of this Agreement shall have been true and
correct in all material respects when made and shall be true and correct in all
material respects at and as of the Closing as if such representations and
warranties were made as of such time and date.
b. PERFORMANCE OF AGREEMENT. All covenants, conditions and
other obligations under this Agreement which are to be performed or complied
with by Buyer shall have been fully performed and complied with at or prior to
the Closing.
c. CERTIFICATE. Buyer shall each have delivered to Seller and
the Stockholders at the Closing a certificate, dated the date of the Closing,
executed by its President, to the effect that the conditions set forth in
subsections (a) and (b) of this Section 6.2 have been satisfied.
d. APPROVAL OF DOCUMENTATION. The form and substance of all
certificates, instruments, opinions and other documents delivered or to be
delivered to Seller and the
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Stockholders under this Agreement shall be satisfactory to Seller and the
Stockholders and their counsel in all respects.
e. ABSENCE OF GOVERNMENTAL OR OTHER OBJECTION. There shall be
no pending or threatened lawsuit challenging the transaction by any body or
agency of the federal, state or local government or by any third party, and the
consummation of the transaction shall not have been enjoined by a court of
competent jurisdiction as of the Closing.
f. OPINION OF COUNSEL. Buyer shall have delivered to Seller an
opinion of counsel for Buyer as to the matters set forth on Schedule 5.3(e).
g. EMPLOYMENT AGREEMENT AND OTHER DOCUMENTS. Buyer shall have
executed and delivered an Employment Agreement with each of the Stockholders and
shall have executed and delivered the Note and the other Buyer Closing
Documents.
ARTICLE VII INDEMNIFICATION
SECTION VII.1 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND
AGREEMENTS.
a. Notwithstanding any investigation conducted at any time with
regard thereto by or on behalf of either party, all representations, warranties,
covenants and agreements of each party in this Agreement shall survive the
execution, delivery and performance of this Agreement for a period of three
years following the Closing. Any claim for breach of any representation,
warranty, covenant or agreement under this Agreement must be asserted by notice
from the party or parties seeking indemnification under this Article VII to the
other party or parties on or prior to the end of such three-year period. All
representations and warranties of each party set forth in this Agreement shall
be deemed to have been made again by such party at and as of the Closing.
b. As used in this Article, any reference to a representation,
warranty or covenant contained in any Section of this Agreement shall include
the Schedule or Exhibit relating to such Section.
SECTION VII.2 INDEMNIFICATION.
a. Buyer hereby agrees to indemnify and hold harmless Seller
and the Stockholders from and against any and all losses, liabilities, damages,
demands, claims, suits, actions, judgments or causes of action, assessments,
costs and expenses, including, without limitation, interest, penalties,
attorneys' fees, any and all expenses incurred in investigating, preparing or
defending against any litigation, commenced or threatened, or any claim
whatsoever, and any and all amounts paid in settlement of any claim or
litigation (collectively, "Damages"), asserted against, resulting to, imposed
upon, or incurred or suffered by Seller or either of the Stockholders, directly
or indirectly, as a result of or arising from: (i) any inaccuracy in or breach
or nonfulfillment of any of the representations, warranties, covenants or
agreements made by Buyer in this Agreement, the other Buyer Closing Documents,
or any of the other agreements, instruments or documents executed and delivered
by Buyer in connection with the transactions contemplated hereby or thereby or
(ii) the operations of the business of Buyer related to the Assets after the
Closing (the "Buyer Indemnifiable Claims").
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b. Seller and the Stockholders, jointly and severally, agree to
indemnify and hold harmless Buyer against any and all Damages asserted against,
resulting to, imposed upon, or incurred or suffered by Buyer, directly or
indirectly, as a result of or arising from, any of the following (the "Seller
Indemnifiable Claims"):
(i) Any inaccuracy in or breach or nonfulfillment of
any of the representations, warranties, covenants or agreements made by Seller
and/or either of the Stockholders in this Agreement, the other Seller Closing
Documents or any of the other agreements, instruments or documents executed and
delivered by Seller and/or either of the Stockholders in connection with the
transactions contemplated hereby or thereby;
(ii) Any liability or obligation of Seller or either of
the Stockholders other than the Assumed Liabilities;
(iii) The operations of the business of Seller (other
than with respect to the Assumed Liabilities after the Closing and the
operations of the business of Buyer); and
(iv) Any failure by Seller or the Stockholders to
comply with Section 4.5 hereof.
Notwithstanding the foregoing, the indemnification obligations of
Seller and the Stockholders pursuant to this Section 7.2 shall be limited, in
the aggregate, to that portion of the Purchase Price received from time to time
by Seller. Buyer shall have a right of set-off against any portion of the
Purchase Price not yet paid to Seller.
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SECTION VII.3 PROCEDURE FOR INDEMNIFICATION WITH RESPECT TO
THIRD-PARTY CLAIMS.
a. If Buyer determines to seek indemnification under this
Article VII with respect to Seller Indemnifiable Claims or if Seller or either
of the Stockholders determine to seek indemnification under this Article VII
with respect to Buyer Indemnifiable Claims (the party seeking such
indemnification hereinafter referred to as the "Indemnified Party" and the party
against whom such indemnification is sought is hereinafter referred to as the
"Indemnifying Party") resulting from the assertion of liability by third
parties, the Indemnified Party shall give notice to the Indemnifying Party
within sixty (60) days of the Indemnified Party becoming aware of any such
Indemnifiable Claim or of facts upon which any such Indemnifiable Claim will be
based; the notice shall set forth such material information with respect thereto
as is then reasonably available to the Indemnified Party. In case any such
liability is asserted against the Indemnified Party, and the Indemnified Party
notifies the Indemnifying Party thereof, the Indemnifying Party will be
entitled, if it so elects by written notice delivered to the Indemnified Party
within twenty (20) days after receiving the Indemnified Party's notice, to
assume the defense thereof with counsel satisfactory to the Indemnified Party.
Notwithstanding the foregoing, (i) the Indemnified Party shall also have the
right to employ its own counsel in any such case, but the fees and expenses of
such counsel shall be at the expense of the Indemnified Party, unless the
Indemnifying Party does not assume the defense or the Indemnified Party shall
reasonably determine that there is a conflict of interest between Buyer, on the
one hand, and Seller or the Stockholders, on the other hand, with respect to
such Indemnifiable Claim, in which case the fees and expenses of such counsel
will be borne by the Indemnifying Party, (ii) the Indemnified Party shall not
have any obligation to give any notice of any assertion of liability by a third
party unless such assertion is in writing, and (iii) the rights of the
Indemnified Party to be indemnified hereunder in respect of Indemnifiable Claims
resulting from the assertion of liability by third parties shall not be
adversely affected by its failure to give notice pursuant to the foregoing
unless, and, if so, only to the extent that the Indemnifying Party is materially
prejudiced thereby. With respect to any assertion of liability by a third party
that results in an Indemnifiable Claim, the parties hereto shall make available
to each other all relevant information in their possession material to any such
assertion.
b. In the event that the Indemnifying Party, within thirty (30)
days after receipt of the aforesaid notice of an Indemnifiable Claim, fails to
assume the defense of the Indemnified Party against such Indemnifiable Claim,
the Indemnified Party shall have the right to undertake the defense, compromise
or settlement of such action on behalf of and for the account and risk of the
Indemnifying Party.
c. Notwithstanding anything in this Section to the contrary,
(i) if there is a reasonable probability that an Indemnifiable Claim may
materially and adversely affect the Indemnified Party, other than as a result of
money damages or other money payments, the Indemnified Party shall have the
right to participate in such defense, compromise or settlement and the
Indemnifying Party shall not, without the Indemnified Party's written consent
(which consent shall not be unreasonably withheld), settle or compromise any
Indemnifiable Claim or consent to entry of any judgment in respect thereof
unless such settlement, compromise or consent includes as an unconditional term
thereof the giving by the claimant or the plaintiff to the Indemnified Party of
a release from all liability in respect of such Indemnifiable Claim.
SECTION VII.4 PROCEDURE FOR INDEMNIFICATION WITH RESPECT TO NON-THIRD
PARTY CLAIMS. In the event that the Indemnified Party asserts the existence of
a claim giving rise to Damages (but excluding claims resulting from the
assertion of liability by third parties), it shall give written notice to the
Indemnifying Party. Such written notice shall state that it is being given
pursuant to this Section
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7.4, specify the nature and amount of the claim asserted and indicate the date
on which such assertion shall be deemed accepted and the amount of the claim
deemed a valid claim (such date to be established in accordance with the next
sentence). If the Indemnifying Party, within thirty (30) days after the receipt
of written notice by the Indemnified Party, shall not give written notice to the
Indemnified Party announcing its intent to contest such assertion of the
Indemnified Party, such assertion shall be deemed accepted and the amount of
claim shall be deemed a valid claim. In the event, however, that the
Indemnifying Party contests the assertion of a claim by giving such written
notice to the Indemnified Party within said period, then the parties shall act
in good faith to reach agreement regarding such claim. In the event that
litigation shall arise with respect to any such claim, the prevailing party
shall be entitled to reimbursement of costs and expenses incurred in connection
with such litigation including attorney fees, if the parties hereto, acting in
good faith, cannot reach agreement with respect to such claim within ten (10)
days after such notice.
ARTICLE VIII TERMINATION
SECTION VIII.1 TERMINATION BY ANY PARTY. This Agreement may be
terminated and canceled at any time prior to the Closing upon written notice
from the terminating party to the other parties: (i) by Buyer, if any of the
representations or warranties of Seller or the Stockholders contained herein or
in any Schedule attached hereto shall prove to be inaccurate or untrue in any
material respect; (ii) by Seller and the Stockholders, if any of the
representations or warranties of Buyer contained herein or in any Schedule
attached hereto shall prove to be inaccurate or untrue in any material respect;
(iii) by either party, if any obligation, term or condition to be performed,
kept or observed by the other party or parties hereunder has not been performed,
kept or observed in any material respect at or prior to the time specified in
this Agreement, or (iv) by either party, if the Closing does not take place by
October 20, 1996. Nothing contained herein shall be deemed to preclude any
party from bringing an action for damages in the event of a termination by such
party pursuant to clause (i), (ii) or (iii) of this Section 8.1.
ARTICLE IX MISCELLANEOUS PROVISIONS
SECTION IX.1 NOTICE. All notices and other communications required
or permitted under this Agreement shall be deemed to have been duly given and
made if in writing and if served either by personal delivery to the party for
whom intended or by facsimile transmission together with a copy sent by
certified or registered mail, postage prepaid to the address shown in this
Agreement for, or such other address as may be designated in writing hereafter
by, such party:
If to Seller
or to the Stockholders:
InfoStructures, Inc.
0000 Xxxxx Xxxxxx, #000
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xx. Xxxx Xxxxxxxx
Xx. Xxxxxxxx Xxxxxx
Facsimile Number: (000) 000-0000
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with a copy to:
Xxxxxxxxxxxx Xxxx & Xxxxxxxxx
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxx, Esq.
Facsimile Number: (000) 000-0000
If to Buyer:
Logic Works, Inc.
University Square at Princeton
000 Xxxxxx Xxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: Mr. Xxxxxxx Xxxxxx
Facsimile Number: (000) 000-0000
with a copy to:
Xxxxxxx, Phleger & Xxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
Facsimile Number: (000) 000-0000
SECTION IX.2 BINDING EFFECT; ASSIGNMENT. This Agreement and the
various rights and obligations arising hereunder shall inure to the benefit of
and be binding upon Seller and the Stockholders, their successors and permitted
assigns, and Buyer and its successors and permitted assigns. Neither this
Agreement nor any of the rights, interests or obligations hereunder shall be
transferred or assigned (by operation of law or otherwise) by either of the
parties hereto without the prior written consent of the other party.
SECTION IX.3 CAPTIONS. The Article and Section headings of this
Agreement are inserted for convenience only and shall not constitute a part of
this Agreement in construing or interpreting any provision hereof.
SECTION IX.4 EXPENSES OF TRANSACTION; TAXES. Seller, the
Stockholders and Buyer shall each pay their own respective costs and expenses
incurred in connection with this Agreement, and the transactions contemplated
hereby; PROVIDED, HOWEVER, that if this Agreement is terminated by Buyer other
than in accordance with the provisions of Article VIII, Buyer shall reimburse
Seller and the Stockholders for their legal and accounting fees incurred in
connection with this transaction up to a maximum of $20,000. Seller shall pay
all applicable sales, use, transfer and documentary taxes arising out of the
sale of the Assets.
SECTION IX.5 WAIVER; CONSENT. This Agreement may not be changed,
amended, terminated, augmented, rescinded or discharged (other than by
performance), in whole or in part, except by a writing executed by the parties
hereto, and no waiver of any of the provisions or conditions of this Agreement
or any of the rights of a party hereto shall be effective or binding unless
such waiver
- 20 -
shall be in writing and signed by the party claimed to have given or consented
thereto. Except to the extent that a party hereto may have otherwise agreed in
writing, no waiver by that party of any condition of this Agreement or breach by
the other party of any of its obligations or representations hereunder or
thereunder shall be deemed to be a waiver of any other condition or subsequent
or prior breach of the same or any other obligation or representation by the
other party, nor shall any forbearance by the first party to seek a remedy for
any noncompliance or breach by the other party be deemed to be a waiver by the
first party of its rights and remedies with respect to such noncompliance or
breach.
SECTION IX.6 NO THIRD-PARTY BENEFICIARIES. Except as otherwise
expressly provided for in this Agreement, nothing herein, expressed or implied,
is intended or shall be construed to confer upon or give to any person, firm,
corporation or legal entity, other than the parties hereto, any rights, remedies
or other benefits under or by reason of this Agreement.
SECTION IX.7 COUNTERPARTS. This Agreement may be executed
simultaneously in multiple counterparts, each of which shall be deemed an
original, but all of which taken together shall constitute one and the same
instrument.
SECTION IX.8 GENDER. Whenever the context requires, words used in
the singular shall be construed to mean or include the plural and vice versa,
and pronouns of any gender shall be deemed to include and designate the
masculine, feminine or neuter gender.
SECTION IX.9 SEVERABILITY. If one or more provisions of this
Agreement are held to be unenforceable under applicable law, such provision
shall be modified or excluded from this Agreement to the minimum extent
necessary so that the balance of the Agreement shall remain in full force and
effect and enforceable. The parties also agree to use best efforts to amend the
Agreement so that its effect remains as close as possible to the original intent
of the parties.
SECTION IX.10 REMEDIES OF BUYER. Seller and the Stockholders agree
that the Assets are unique and not otherwise readily available to Buyer.
Accordingly, Seller and the Stockholders each acknowledge that, in addition to
all other remedies to which Buyer is entitled, Buyer shall have the right to
enforce the terms of this Agreement by a decree of specific performance,
provided Buyer is not in material default hereunder.
SECTION IX.11 GOVERNING LAW. This Agreement shall in all respects be
construed in accordance with and governed by the laws of the State of New
Jersey, without regard to principles of conflicts or choice of laws.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the day and year first above written.
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LOGIC WORKS, INC.
By:
-----------------------------------------
Name:
Title:
INFOSTRUCTURES, INC.
By:
-----------------------------------------
Name:
Title:
SELLING STOCKHOLDERS
---------------------------------------------
Xxxx Xxxxxxxx
---------------------------------------------
Xxxxxxxx Xxxxxx
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