ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT, dated June 19, 1996, by and among Momentum
Software Corporation, a Delaware corporation ("Momentum"), and Visual Flow,
Inc., a Delaware corporation ("Visual Flow"), and Xxxxx X. Xxxxxx ("Xxxxxx"), T.
Xxxxxx Xxxxxxxxxx ("Xxxxxxxxxx"), and EnvisionIt Software Corporation, a New
Jersey corporation ("Purchaser").
W I T N E S S E T H:
WHEREAS, Xxxxxx and Xxxxxxxxxx were shareholders of ISM Corporation
("ISM"), a software company; and pursuant to an Acquisition Agreement among
Momentum, ISM and certain shareholders of ISM, dated September 1994 (the "ISM
Agreement"), ISM sold all of its assets to Momentum in consideration for, among
other things, shares of capital stock of Momentum; and on or about January 1,
1996, Momentum contributed substantially all of the ISM assets to Momentum's
wholly-owned subsidiary, Visual Flow;
WHEREAS, prior to the date hereof, Xxxxxx and Xxxxxxxxxx have run
Visual Flow, which has engaged in the business of creating, marketing, selling,
distributing, revising and customizing integration software for integrating
manufacturing software applications and providing consulting services directly
relating to the sales of such software (the "Business"); and
WHEREAS, Visual Flow desires to sell and transfer to the Purchaser, and
the Purchaser desires to purchase and assume from Visual Flow, certain of the
assets and liabilities relating to the Business, all as more specifically
provided herein;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and intending to be legally bound, the parties hereto agree as follows:
ARTICLE I
Certain Definitions
Section 1.1. Certain Definitions. As used in this Agreement, the
following terms have the respective meanings set forth below.
"Affiliate" means, with respect to any Person, any other Person who
directly or indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with, such Person. The term "control"
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise, and the terms
"controlled" and "controlling" have meanings correlative thereto.
"Associated With" a Person that is engaged in the Business means (i)
becoming an Affiliate of, (ii) owning (directly or indirectly) any portion of,
or (iii) serving as a director, trustee, member, officer, consultant, partner,
agent, independent contractor or employee of: any Person or other entity engaged
in the Business.
"Business Day" means a day, other than a Saturday or Sunday, on which
commercial banks in New Jersey are open for the general transaction of business.
"Confidential Information" consists of all information, knowledge or
data relating specifically to the Business and not otherwise used by Momentum in
the ordinary course of its businesses other than that conducted by Visual Flow,
including, without limitation, customer and supplier lists, formulae, trade
know-how, source code, software, processes, secrets, consultant and independent
contractor contracts, pricing information, marketing plans, product development
plans, business acquisition plans and all other information relating to the
operation of the Business not in the public domain or otherwise available
publicly. Information which enters the public domain or is available publicly
loses its confidential status hereunder so long as neither Visual Flow nor its
Affiliates directly or indirectly cause such information to enter the public
domain.
"Excluded Liabilities" means any and all liabilities or obligations of
Visual Flow or its Affiliates, of any kind or nature, whether or not relating to
the Business or the Purchased Assets, and whether known or unknown, absolute,
accrued, contingent or otherwise, or whether due or to become due, arising out
of events or transactions or facts occurring on, prior to, or after the date
hereof, other than Assumed Liabilities; provided that the liability to Cytech
for XIPC use or support shall be an Excluded Liability.
"Governmental Authority" means any national, federal, state,
provincial, county, municipal or local government, foreign or domestic, or the
government of any political subdivision of any of the foregoing, or any entity,
authority, agency, ministry or other similar body exercising executive,
legislative, judicial, regulatory or administrative authority or functions of or
pertaining to government, including any authority or other quasi-governmental
entity established to perform any of such functions.
"Person" means an individual, partnership, corporation, limited
liability company, sole proprietorship, joint venture, mutual company, joint
stock company, unincorporated organization or association, trust or joint
venture or a Governmental Authority.
ARTICLE II
Purchase and Sale of Assets; Assumption of Liabilities;
Additional Covenants
Section 2.1. Purchase and Sale of Assets. Upon the terms and subject to
the conditions of this Agreement and on the basis of the representations,
warranties and agreements contained herein, Visual Flow hereby sells, assigns,
transfers, conveys and delivers to the Purchaser all of Visual Flow's right,
title and interest in and to the assets listed on Schedule 1 annexed hereto (the
"Purchased Assets") and the Purchaser hereby purchases such Purchased Assets
from Visual Flow; provided that the Purchased Assets do not include any right,
title or interest in or to or (for future sales only) to use XIPC; provided
further that the Purchased Assets include the right to continue using XIPC for
and to service and support Visual Flow's installed base of customers and only in
the Visual Flow applications currently installed or licensed; provided further
that should the Purchaser seek a license to use or resell XIPC, Momentum shall
sell such license to the Purchaser for consideration and on terms that are no
less favorable than the then current licensing fees and terms in effect for
XIPC.
Section 2.2. Purchase Price. In consideration for the Purchased Assets,
the Purchaser hereby conveys to Visual Flow and Momentum the GH Shares and the
Momentum Option, and the Purchaser hereby assumes the Assumed Liabilities.
NOTWITHSTANDING THE FOREGOING, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN,
THE PURCHASER IS NOT ASSUMING, NOR SHALL IT IN ANY MANNER BECOME LIABLE FOR, ANY
OTHER LIABILITIES OR OBLIGATIONS OF ANY KIND OR NATURE WHATSOEVER OF VISUAL FLOW
OR ITS AFFILIATES, OTHER THAN THE ASSUMED LIABILITIES OR FROM BREACH OF THIS
AGREEMENT.
"GH Shares" means (as of the date hereof) (i) all shares of the capital
stock of Momentum ("Momentum Stock") that are owned by Xxxxxx or by Xxxxxxxxxx,
(ii) the right to receive shares of Momentum Stock, which right was granted to
Xxxxxx and to Xxxxxxxxxx pursuant to the ISM Agreement, and (iii) any options
held by Xxxxxx or Xxxxxxxxxx to purchase or otherwise acquire shares of Momentum
Stock.
"Assumed Liabilities" means the $7,500 payable by Visual Flow to Bayer
West Virginia, all performance obligations, liabilities arising from breach of
contract, and product support liabilities directly incurred under customer
support contracts or software sales contracts existing as of the date hereof, or
2
existing directly as a result of prior activities of ISM, the Visual Flow
division of Momentum, and/or Visual Flow. The Assumed Liabilities also include
obligations incurred by Xxxxxx and Xxxxxxxxxx on behalf of Visual Flow, or
obligations incurred by Xxx Xxxxx and Xxxx Xxxxx as employees of Visual Flow,
acting in the ordinary course of Visual Flow's business, and any deferred
compensation obligations of Visual Flow to Xxxxxx and Xxxxxxxxxx.
Section 2.3. Momentum Option. The Purchaser hereby grants to Momentum,
the option to purchase shares of the capital stock of the Purchaser (the
"Momentum Option") as follows:
(a) At any time after the date hereof and prior to the second
Anniversary Date (unless and until the Momentum Option is terminated earlier),
Momentum shall have the option to (i) purchase from the Purchaser a 20% stake in
the Purchaser (an "Exercise for Stock"), (ii) upon the occurrence of a Sale of
Business Event, receive proceeds (a "SOBE Exercise"), or (iii) perform a GH
Exercise.
(b) The Momentum Option is not partially exercisable, rather it can
only be exercised in full. Momentum may, in accordance with the procedures set
forth below, extend the Momentum Option for three consecutive Agreement Years
commencing at 5:00 p.m. on the second, third and fourth Anniversary Dates,
respectively, as provided herein; however once lapsed or surrendered, the
Momentum Option may not be extended. Furthermore, in order to exercise or extend
the Momentum Option, Momentum must give to the Purchaser (i) written notice of
Momentum's intent to exercise or extend, as the case may be, and (ii) payment in
full in cash: (X) for extensions, $100,000 per one year extension or (Y) for
exercises, of the amount specified in the table below. For extensions or
exercises of the Momentum Option, such notice and payment must be actually
received by the Purchaser no later than 5:00 p.m. New York City time on the
expiration date (or, if earlier, the termination date) of the Momentum Option.
The following table sets forth the exercise price due if the Momentum Option is
exercised during the Agreement Year(s) listed in the right hand column:
Date of Exercise Option Exercise Price
Agreement Years 1 through 3 $500,000
Agreement Year 4 $750,000
Agreement Year 5 $1,000,000
(c) The type of exercise of the Momentum Option described in this
subparagraph (c) shall be referred to as a "GH Exercise." In the event that
Xxxxxx and Xxxxxxxxxx enter into a Deal to sell in aggregate 50% or more of
their combined holdings of the then outstanding capital stock of the Purchaser,
they must provide to Momentum at least 20 days written notice thereof prior to
the consummation of the Deal, provided however, that such notice period shall be
reduced to 10 days if the closing of such Deal is scheduled for less than 20
days from the date on which such potential business arrangement became a Deal.
Momentum shall have the right to elect to sell an amount of the capital stock of
the Purchaser issuable upon exercise of the Momentum Option that is
proportionate to the amount of capital stock of the Purchaser being sold by
Xxxxxx and Xxxxxxxxxx, in aggregate. For instance, if there were 800 shares of
the capital stock of the Purchaser outstanding and Xxxxxx and/or Xxxxxxxxxx
owned 600 of those shares and entered into an agreement to sell 300 of their
shares, they would notify Momentum of such sale; Momentum would then be entitled
to exercise its option for 200 shares, 100 of which it could sell in such sale.
Momentum would have to do a full Exercise for Stock prior to the consummation of
such sale in order to do a GH Exercise; provided that Momentum can rescind its
exercise if such Deal is not consummated.
(d) The Momentum Option shall terminate upon the occurrence of a Sale
of Business Event in the following manner. Within 10 Business Days after
entering into a Deal that it believes will qualify as a Sale of Business Event,
the Purchaser shall notify Momentum in writing of such Deal ("Deal Notice").
Momentum shall then have the lesser of (x) until 5:00 p.m. New York City time on
3
the Consummation Date of such Sale of Business Event (but not less than 10 days
from the receipt of such notification), or (y) 30 calendar days, to decide and
give written notice to the Purchaser of whether Momentum shall do a SOBE
Exercise or an Exercise for Stock.
If (i) the Sale of Business Event is not consummated during the
Agreement Year in which the Purchaser gave the Deal Notice, (ii) that Deal
Notice was given in Agreement Years 2, 3 or 4, and (iii) Momentum responded with
written notice that it sought to do a SOBE Exercise, then Momentum will be
permitted a one year extension without payment of the extension fee (for that
year) referred to in subparagraph (b) above (the "Free Ride Year"); provided
that by the earlier of (1) 30 days prior to the Consummation Date, or (2) the
third day after Momentum has been notified of a tentative offering price range
(if the Sale of Business Event is a public offering), Momentum must notify the
Purchaser in writing whether it still intends to do a SOBE Exercise or an
Exercise for Stock (in light of the price change that takes effect on the first
day of the Free Ride Year); provided further that, if Momentum switches from a
SOBE Exercise to an Exercise for Stock, it must pay to the Purchaser the
$100,000 extension fee at or before the time that Momentum must give the second
notice referenced in the preceding proviso; provided further that if, pursuant
to a good faith belief that the Sale of Business Event will not be consummated,
the Purchaser has notified Momentum in writing of such occurrence, Momentum
shall have 10 Business Days to decide whether to pay the $100,000 extension fee
(to keep the Momentum Option alive for the remainder of the Free Ride Year) or
surrender the Momentum Option. There shall be no more than one Free Ride Year
per Deal Notice.
On or prior to 5:00 p.m. New York City time on the Consummation Date of
such Sale of Business Event, Momentum shall have exercised (in one of the
manners provided in subsection (a) above) or else surrendered the Momentum
Option. If the Momentum Option shall not have been exercised in accordance with
the provisions hereof by the Consummation Date, it shall automatically terminate
irrevocably and Momentum shall have no further rights thereunder. The exercise
price of the Momentum Option shall be the exercise price in effect (pursuant to
subsection (b) hereof) on the Consummation Date of such Sale of Business Event.
(e) During the life of the Momentum Option, the Purchaser shall provide
to the permitted holders of the Momentum Option reasonable access to financial
information about the Purchaser and the right to meet with the Purchaser's board
to discuss in reasonable detail potential Sale of Business Events, as reasonably
requested by such holders; provided that, during the 60 day period prior to
expiration of the Momentum Option (or each extension thereof, if any), the
Purchaser shall provide reasonable assistance to enable Momentum to conduct a
due diligence inquiry of the Purchaser; provided that all of the information
obtained by such due diligence inquiry shall be deemed Confidential Information
hereunder and shall only be used by the permitted holders of the Momentum Option
for purposes of evaluating whether or not to exercise the Momentum Option.
Notwithstanding anything contained herein to the contrary, in the event that
Momentum or any transferee of Momentum who is a permitted transferee engages,
directly or indirectly, in the Business at any time during the life of the
Momentum Option: (i) Momentum and/or such permitted transferees shall not be
entitled to receive or review any Confidential Information of the Purchaser;
provided however that such permitted holder of the Momentum Option shall be
entitled to review financial information with customer and supplier names,
specific contract terms, etc. redacted, and to discuss with the Purchaser's
board the general financial condition of the Purchaser and (ii) neither Momentum
nor any permitted transferee of Momentum shall, directly or indirectly, solicit
or interfere with the Person whose offer resulted in a Sale of Business Event
prior to the consummation or the time at which, in the Purchaser's reasonable
judgment, such transaction has been abandoned or terminated.
(f) Without limiting the general provisions of Section 7.4, Momentum
shall not assign the Momentum Option without the Purchaser's prior written
consent; provided that, 20 calendar days prior to a Change of Control in
Momentum (such period shall be reduced to 10 days if such Change in Control is
4
scheduled to be consummated prior to the 20th day) at a time when person(s)
controlling Momentum (or the entity acquiring all or substantially all of the
assets of Momentum -- whether in one or more transactions) engage, directly or
indirectly, in the Business, Momentum shall notify the Purchaser in writing of
such event and, upon consummation of that event Momentum shall distribute the
Momentum Option to the then holders of Momentum's Preferred Stock who are (x)
not directly engaged in the Business and who do not own more than 25% of any
class of outstanding securities of any entity which, directly or indirectly,
engages in the Business and (y) were holders of the Preferred Stock of Momentum
as of the date hereof, such distribution shall be in such proportion and for
such consideration as Momentum may determine. Such holders ("permitted
transferees") of Momentum's Preferred Stock receiving a portion of the Momentum
Option shall agree that the action of the holders of more than 50% of the
Momentum Option shall bind all of such holders; provided that, if Momentum is
precluded by Delaware corporate law from distributing the Momentum Option solely
to holders of Momentum's preferred stock, then such distribution shall be made
to such holders of the capital stock of Momentum as Delaware corporate law
requires. A holder of the Momentum Option may transfer all or a portion of its
interest to another holder of a portion of such Momentum Option. The holders or
permitted transferees of the Momentum Option must and can only act as one group.
(g) for purposes of this Agreement, the following terms shall mean as
follows:
"Agreement Year" means a year commencing on an Anniversary Date and
ending on the day preceding the next Anniversary Date.
"Anniversary Date" means the anniversary of the date hereof.
"Change of Control" means the holders of Momentum's voting capital
stock at the date hereof (i) owning in the aggregate at any time thereafter
fifty percent (50%) or less of the outstanding voting stock of Momentum or (ii)
not having the right to elect a majority of Momentum's Board of Directors.
"Deal" means a bona fide transaction that, in the commercially
reasonable judgment of Xxxxxx and Xxxxxxxxxx, is a firm arrangement that is more
likely than not to actually be consummated (in substantially the manner provided
for).
"Exercise for Stock" means that Momentum pays the then current exercise
price for the Momentum Option in exchange for 20% of the shares of the common
and preferred stock of the Purchaser that would be outstanding immediately after
giving effect to the exercise of the Momentum Option, and the right to
automatically receive, (on an as exercised or as converted basis) for no
additional cash consideration, a number of shares of the stock of the Purchaser
such that Momentum would have 20% of the capital stock of the Purchaser
outstanding after giving effect to Momentum's exercise and to the exercise or
conversion of all of the options, warrants and convertible securities of the
Purchaser outstanding on the date on which Momentum exercised the Momentum
Option; provided that, in light of the reservation for issuance by the Purchaser
of 150,000 shares to be issued pursuant to a qualified and/or nonqualified
employee stock plan (collectively, with a successor thereto or replacement
thereof, the "ESP"), and Momentum's acknowledgment of the Purchaser's need to
obtain qualified employees, Momentum shall exclude from the calculation of 20%
any options issued or granted under the ESP other than those issued or granted
to Xxxxxx and Xxxxxxxxxx; provided further that, such ESP options shall vest
over no less than a four year period. For example, if on the date on which
Momentum exercised for stock the Momentum Option, the outstanding shares and
options of the Purchaser were as follows: 400 shares, non-ESP options for an
additional 400 shares, and ESP options for 70 shares (none of which were granted
to Xxxxxx or Xxxxxxxxxx), then Momentum would receive 100 shares and the right
to receive an additional 100 shares as (and only if) such non-ESP options are
exercised. However, Momentum cannot at any time, through the exercise of such
options, obtain more than 20% of any class of the outstanding capital stock of
the Purchaser. The Purchaser shall not be required to issue fractional shares
5
upon exercise of the Momentum Option, instead, the number shall be rounded down
to the next nearest whole number. Following an Exercise for Stock, the Purchaser
shall be prohibited from issuing to Momentum, Xxxxxx, Xxxxxxxxxx or any
Affiliate of any of the foregoing, any options exercisable at below the fair
market value determined as of the date of grant; the Purchaser may, however,
subject to the first part of this sentence, grant such options to any employees
eligible to receive grants under the ESP.
"Sale of Business Event" means the consummation by the Purchaser (the
date of which is hereinafter referred to as the "Consummation Date") of (a) any
public offering of the securities of the Purchaser, (b) any consolidation,
merger or sale of the securities of the Purchaser such that the holders of the
Purchaser's capital stock immediately before such consolidation, merger or sale
will in the aggregate own less than 25% of the outstanding voting stock of the
Purchaser (or any continuing or surviving corporation) immediately after such
consolidation, merger or sale or (c) any bona fide sale, lease, exchange or
other transfer (in one transaction or a series of related transactions) of all
or substantially all of the Purchaser's assets to an entity other than an
Affiliate of the Purchaser.
"SOBE Exercise" means, upon receipt of Deal Notice, Momentum can elect
to receive proceeds from such event (without payment by Momentum therefor) as
follows: if the Sale of Business Event values the Purchaser (or, in the case of
an asset sale, all of the Purchaser's assets) (excluding minority, illiquidity
or other discounts and control or other premiums) as follows, then Momentum
shall receive the following portion of the actual proceeds from such Sale of
Business Event (which, for purposes of a consolidation or merger shall be the
valuation of Purchaser as an entity immediately prior to the consummation of the
transaction):
Valuation Formula for determining Momentum's Stake
$300,000 or less Momentum shall receive a 20 day right of
first refusal on the sale, but if it does
not exercise such right, the Momentum Option
shall terminate on the Consummation Date and
Momentum shall not receive any proceeds from
such Sale of Business Event
more than $300,000 and
less than $2.5 million 10% of the proceeds of the Sale of Business
Event
$2.5 million or more 10% of the first $2.5 million of the
proceeds of the Sale of Business Event,
3.35 of the remaining proceeds
To illustrate the above, if IBM buys 90% of the stock of the Purchaser for $1.3
million in cash and $500,000 in IBM stock, that deal values the Purchaser as a
$2 million company and the holders of the Momentum Option would receive 10% of
the actual proceeds, or $130,000 in cash and $50,000 worth of IBM stock.
Section 2.4. Allocation of the Purchase Price. The Purchase Price shall
be allocated as set forth in the Form 8594s attached hereto.
ARTICLE III
Representations and Warranties of Visual Flow and Momentum
Visual Flow and Momentum jointly and severally represent and warrant to
each of the Purchaser, Xxxxxx and Xxxxxxxxxx as follows:
Section 3.1. Organization and Qualification of Visual Flow. Visual Flow
is a corporation duly organized, validly existing and in good standing under the
laws of the State in which it was incorporated, with full power and authority,
corporate and other, to own or lease its property and assets and to carry on the
Business as conducted up through March 31, 1996, is duly qualified to do
6
business as a foreign corporation and is in good standing in each jurisdiction
in which it is required to be so qualified. The Business is conducted solely
through Visual Flow, which does not, directly or indirectly, own any
subsidiaries.
Section 3.2. Authorization. To the best of their knowledge, Visual Flow
and Momentum have full power and authority, corporate and other, to execute and
deliver this Agreement, the instruments of transfer and to perform their
obligations hereunder and thereunder, all of which have been duly authorized by
all requisite corporate action. Each of this Agreement and such instruments of
transfer has been or, at the time of delivery will be, duly authorized, executed
and delivered by each of Momentum and Visual Flow and constitutes or, at the
time of delivery will constitute, a valid and binding agreement of each of them,
enforceable against each of them in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles (the "Bankruptcy Exception").
Section 3.3. Non-contravention. To the best of their knowledge, neither
the execution and delivery of this Agreement, the instruments of transfer nor
the performance by Momentum and Visual Flow of their obligations hereunder and
thereunder will: (i) contravene any provision contained in Visual Flow's or
Momentum's Certificate of Incorporation or by-laws, (ii) violate or result in a
breach (with or without the lapse of time, the giving of notice or both) of or
constitute a default under (A) any contract, agreement, commitment, indenture,
mortgage, lease, pledge, note, license, permit or other instrument or obligation
or (B) any judgment, order, decree, law, rule or regulation or other restriction
of any Governmental Authority, in each case to which Visual Flow or Momentum is
a party or by which they are bound or to which any of their assets or properties
are subject, (iii) result in the creation or imposition of any lien, claim,
charge, mortgage, pledge, security interest, equity, restriction or other
encumbrance (collectively, "Encumbrances") on any of Visual Flow's or Momentum's
assets or properties, or (iv) result in the acceleration of, or permit any
Person to accelerate or declare due and payable prior to its stated maturity,
any Assumed Liability.
Section 3.4. No Consents. To the best of their knowledge, no notice to,
filing with, or authorization, registration, consent or approval of any
Governmental Authority or other Person is necessary for the execution, delivery
or performance of this Agreement, the instruments of transfer or the
consummation of the transactions contemplated hereby or thereby by Momentum or
Visual Flow.
Section 3.5. The Purchased Assets. To the best of knowledge of Visual
Flow and Momentum: (i) no third party (including any Affiliate of Visual Flow)
owns or has any interest by lease, license or otherwise in any of the Purchased
Assets and (ii) the documents of transfer to be executed and delivered by Visual
Flow and Momentum on the date hereof are sufficient to convey good and
marketable title to the Purchased Assets to the Purchaser, free and clear of all
Encumbrances, other than the Assumed Liabilities.
Section 3.6. Personal Property. To the best of its knowledge, Visual
Flow has good and marketable title to (or valid leasehold or contractual
interests in) all personal property comprising the Purchased Assets, free and
clear of any Encumbrances.
Section 3.7. Governmental Authorizations. To the best knowledge of
Visual Flow and Momentum: (i) the Business has been operated in compliance with
all applicable laws, rules, regulations, codes, ordinances, orders, policies and
guidelines of all Governmental Authorities, including but not limited to, those
related to: fire, safety, labeling of products, pricing, sales or distribution
of products, antitrust, trade regulation, trade practices, sanitation, land use,
employment or employment practices, energy and similar laws, (ii) Visual Flow
and Momentum have all permits, licenses, approvals, certificates and other
authorizations, and have made all notifications, registrations, certifications
and filings with all Governmental Authorities, necessary or advisable for the
7
operation of the Business as currently conducted by Visual Flow, (iii) there is
no action, case or proceeding pending or threatened by any Governmental
Authority with respect to (A) any alleged violation by Visual Flow or its
Affiliates of any law, rule, regulation, code, ordinance, order, policy or
guideline of any Governmental Authority, or (B) any alleged failure by Visual
Flow or its Affiliates to have any permit, license, approval, certification or
other authorization required in connection with the operation of the Business,
(iv) neither Visual Flow, Momentum nor any of their Affiliates have received any
notice of any violation of such laws or that the products manufactured or sold
by the Business are not in compliance with, or do not meet the standards of, all
applicable laws, (v) Schedule 3.7 sets forth a true and complete list of all
permits, licenses, approvals, certificates, registrations and other
authorizations relating to the Business (the "Authorizations"), such
Authorizations are in full force and effect and neither of them have received
notification of the suspension or cancellation of any Authorization, and (vii)
Momentum and Visual Flow have no grounds to believe that any of the
Authorizations listed on Schedule 3.7 are not transferable to the Purchaser.
Section 3.8. Litigation. To the best knowledge of Visual Flow and
Momentum, there are no lawsuits, actions, proceedings, claims, orders or
investigations by or before any Governmental Authority pending or threatened
against Visual Flow or Momentum or any of their Affiliates relating to the
Business, the Purchased Assets, the Assumed Liabilities or any product alleged
to have been manufactured or sold by the Business or seeking to enjoin the
transactions contemplated hereby and there are no facts or circumstances known
to Visual Flow or Momentum, to their best knowledge, that could result in a
claim for damages or equitable relief which, if decided adversely, could
reasonably be expected to, individually or in the aggregate, result in a
material adverse change in or effect on the condition, financial or otherwise,
or the assets, liabilities, Proprietary Rights, earnings, business affairs or
business prospects of Visual Flow or the Purchased Assets.
Section 3.9. Taxes. To the best knowledge of Visual Flow and Momentum,
all federal, state, county, local, foreign and any other taxes (including all
income, withholding and employment taxes), assessments (including interest and
penalties), fees and other governmental charges with respect to the employees,
properties, assets, income or franchises of Visual Flow relating to or affecting
the Business or the Purchased Assets have been paid or duly provided for and all
required filings relating thereto have been duly filed. There are no tax liens
on any of the Purchased Assets.
Section 3.10. Insurance. Schedule 3.10 sets forth a true and correct
list of all insurance policies or binders maintained by Momentum and Visual Flow
during the period from September 1994 until the date hereof relating to the
Business or the Purchased Assets showing, as to each policy or binder, the
carrier, policy number, expiration dates, deductibles and a general description
of the type of coverage provided. Such policies and binders are, and at all
times prior to the consummation of the transactions contemplated hereby, have
been in full force and effect. To the best of their knowledge, at all times
prior to the consummation of the transactions contemplated hereby, Visual Flow
and Momentum have maintained appropriate and adequate insurance policies
covering the Purchased Assets and all aspects of the Business.
Section 3.11. Accounts Receivable. To the best knowledge of Visual Flow
and Momentum, Schedule 3.11 sets forth a true and complete listing of all
Accounts Receivable of Visual Flow, all of which have arisen in the ordinary and
regular course of business, represent bona fide transactions with third parties
and are not subject to any counterclaims or offsets (except for those for which
adequate reserves have been established in accordance with GAAP), have been
billed and are due within 90 days of the date created.
Section 3.12. Contracts. (a) There are no contracts, agreements,
leases, commitments, instruments, plans, permits or licenses, whether written or
oral, with respect to the Business to which Visual Flow (or, if pertinent,
8
Momentum) is a party or is otherwise bound on or prior to April 1, 1996, that in
any way restrict or prohibit Visual Flow from freely engaging in the Business in
any geographic area, or is outstanding and involves the payment by Visual Flow
of more than $20,000 in the aggregate during any 12 month period, other than any
such agreement which Xxxxxx and/or Xxxxxxxxxx entered into on behalf of Visual
Flow.
(b) To the best knowledge of Visual Flow and Momentum: (i) all of the
Contracts (as defined on Schedule I) which are hereby assigned to the Purchaser
hereunder are fully assignable to the Purchaser by Visual Flow and Momentum
without the consent of any third party, or (ii) all consents of third parties
required for the assignment of such Contracts to the Purchaser have been
obtained, and (iii) none of the other parties to any such Contracts intends to
terminate or materially alter the provisions of such Contracts either as a
result of transactions contemplated hereby or otherwise.
(c) To the best of their knowledge, neither Visual Flow nor Momentum is
in, nor have either of them given or received notice of, any default or claimed,
purported or alleged default, or facts that, with notice or lapse of time, or
both, would constitute a default (or give rise to a termination right) on the
part of any party in the performance of any obligation to be performed under any
of the Contracts; provided that the parties are aware of the $7,500 liability to
Bayer West Virginia.
(d) To the best knowledge of Visual Flow and Momentum: (i) true and
complete copies of all written Contracts, including any amendments thereto, have
been delivered to the Purchaser, and (ii) such documents constitute the legal,
valid and binding obligation of Visual Flow (or, if applicable, Momentum) and
each other party purportedly obligated thereunder.
Section 3.13. Intentionally omitted.
Section 3.14. Brokers. No Person is or will be entitled to a broker's,
finder's, investment banker's, financial adviser's or similar fee ("Broker's
Fee") from Visual Flow or Momentum in connection with this Agreement or any of
the transactions contemplated hereby.
Section 3.15. Full Disclosure. No representation or warranty made by
Visual Flow or Momentum in this Agreement, any Schedule, any Exhibit or any
certificate delivered, or to be delivered, by or on behalf of Visual Flow or
Momentum pursuant hereto 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 or therein not misleading.
Section 3.16. Retention of Products. To their best knowledge, in good
faith, Visual Flow and Momentum have either returned to the Purchaser, deleted
from any disk or computer under the control of Visual Flow, Momentum or any of
their Affiliates, or otherwise destroyed or discarded: any and all copies of
(and has not reverse engineered or attempted to reverse engineer) any product
made, designed or marketed by Visual Flow (including, without limitation, any
and all source code, software, product installations and other products), or the
marketing and instruction literature relating thereto.
ARTICLE IV
Representations and Warranties of the Purchaser
Each of the Purchaser, Xxxxxx and Xxxxxxxxxx, represents and warrants
to each of Visual Flow and Momentum as follows:
Section 4.1. Organization and Qualification of the Purchaser. The
Purchaser is a corporation duly organized, validly existing and in good standing
under the laws of the State in which it was incorporated, with full power and
authority, corporate and other, to own or lease its property and assets and to
9
carry on its business as presently conducted, is duly qualified to do business
as a foreign corporation and is in good standing in each jurisdiction in which
it is required to be so qualified. The Purchaser does not, directly or
indirectly, own any subsidiaries.
Section 4.2. Authorization. Each of the Purchaser, Xxxxxx and
Xxxxxxxxxx, has full power and authority to execute and deliver this Agreement,
the instruments of transfer and to perform their respective obligations
hereunder and thereunder, all of which have been duly authorized by all
requisite action. Each of this Agreement and, the instruments of transfer has
been or, at the time of delivery will be, duly authorized, executed and
delivered by the Purchaser, Xxxxxx and Xxxxxxxxxx and constitutes or, at the
time of delivery will constitute, a valid and binding agreement of each of them,
enforceable against each of them in accordance with its terms, subject to the
Bankruptcy Exception.
Section 4.3. Non-contravention. Neither the Purchaser's Certificate of
Incorporation or by-laws nor any agreement, instrument, law, rule, regulation,
order, decree or judgment of any Governmental Authority or other restriction to
which the Purchaser, Xxxxxx or Xxxxxxxxxx is subject, should reasonably be
expected to prevent the consummation of the transactions contemplated by this
Agreement and the instruments of transfer.
Section 4.4. No Consents. Except for consents required in connection
with the Purchaser's assumption of the Assumed Liabilities, no notice to, filing
with, or authorization, registration, consent or approval of any Governmental
Authority or other Person is necessary for the execution, delivery or
performance of this Agreement, the instruments of transfer or the consummation
of the transactions contemplated hereby and thereby by the Purchaser.
Section 4.5. Brokers. No Person is or will be entitled to a Broker's
Fee from the Purchaser in connection with this Agreement or any of the
transactions contemplated hereby.
Section 4.6. The GH Shares. Prior to entering into this Agreement, the
Purchaser had obtained all right, title and interest in and to the GH Shares,
free and clear of all liens and encumbrances. Xxxxxx and Xxxxxxxxxx have not
exercised any of their options to purchase any shares of Momentum Stock.
Section 4.7. Full Disclosure. No representation or warranty made by the
Purchaser, Xxxxxx or Xxxxxxxxxx in this Agreement, any Schedule, any Exhibit or
any certificate delivered, or to be delivered, by or on behalf of the Purchaser,
Xxxxxx or Xxxxxxxxxx, pursuant hereto 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 or therein not misleading.
Section 4.8. No Inaccuracies. To their best knowledge, Xxxxxx and
Xxxxxxxxxx do not know of anything that would make any of the representations
and warranties made by Momentum and Visual Flow in this Agreement untrue,
incomplete or incorrect in any material respect. To the extent Xxxxxx and
Xxxxxxxxxx, had, as of the date hereof, any such knowledge, Momentum and Visual
Flow shall not be liable for breach of that particular representation or
representation.
Section 4.9. New Business. Except for those things known by Momentum
(without imputing to Momentum things known by Xxxxxx and Xxxxxxxxxx), to the
best knowledge of Xxxxxx and Xxxxxxxxxx: (i) from September 1994 through March
31, 1996 (the effective date of the termination of their employment by Momentum
and Visual Flow), Xxxxxx and Xxxxxxxxxx had solicited business for Visual Flow,
and had not attempted to divert business away from Visual Flow, (ii) there were
no accounts receivable of Visual Flow that Xxxxxx and Xxxxxxxxxx had sought to
delay billing on to a date after March 31, 1996 (other than in the ordinary
course of business), (iii) prior to April 1, 1996, Xxxxxx and Xxxxxxxxxx did not
delay the entry by Visual Flow into any material contracts to a date after March
31, 1996 (other than in the ordinary course of business), (iv) between January
1, 1996 and March 31, 1996, there have not been any material improvements to the
10
technology constituting the Business, and (v) Xxxxxx and Xxxxxxxxxx did not
agree on behalf of Visual Flow or Momentum to any compensation and/or severance
arrangements for any Visual Flow employee.
ARTICLE V
Covenants and Agreements
Section 5.1. Transfer and Property Taxes. (a) Momentum and Visual Flow
shall pay any transfer, sales, purchase, use or similar tax under the laws of
any Governmental Authority arising out of or resulting from the purchase of the
Purchased Assets and the assumption of the Assumed Liabilities. Momentum and
Visual Flow shall prepare and file the required tax returns and other required
documents with respect to the taxes and fees required to be paid by it pursuant
to the preceding sentence and shall promptly provide the Purchaser with evidence
of the payment of such taxes and fees.
(b) Momentum and Visual Flow shall (i) prepare and file all tax returns
reporting the income attributable to the Purchased Assets or the operation of
the Business for all periods ending prior to or on the date hereof (the "Closing
Date"), (ii) prepare and file all income tax returns reporting the income of
Visual Flow arising on the Closing Date from the sale to the Purchaser of the
Purchased Assets and the assumption by the Purchaser of the Assumed Liabilities,
(iii) be responsible for the conduct of all tax examinations relating to the tax
returns referred to in (i) and (ii) above, and (iv) pay all taxes attributable
to the Purchased Assets or the operation of the Business due with respect to the
tax returns referred to in (i) and (ii) above. The Purchaser shall prepare and
file all tax returns reporting the income attributable to the ownership of the
Purchased Assets and the operation of the Business for all periods beginning
after the Closing Date and shall be liable for and pay all taxes due in respect
of such tax returns.
Section 5.2. Change of Name. Upon signing this Agreement, Visual Flow
has changed its name to a new name bearing no resemblance to its present name
and not containing the words "Visual Flow" or any combination or variation
thereof or name similar thereto. Momentum and Visual Flow shall not use any such
names or any name similar thereto or which is reasonably believed by the
Purchaser to be confused with any such names or the Business. Visual Flow has
delivered to the Purchaser a duly adopted and executed Certificate of Amendment
to Visual Flow's Certificate of Incorporation effectuating such name change, in
form and substance satisfactory to the Purchaser, which Visual Flow has filed
with the Secretary of State of Delaware at Momentum's sole cost and expense.
Momentum and Visual Flow consent to the use by the Purchaser, Xxxxxx and
Xxxxxxxxxx of the corporate name and any assumed names, fictitious names, trade
names or other similar names of Visual Flow, each of which is and shall be
included in the Purchased Assets.
Section 5.3. Confidentiality. In light of the facts that: (i) Momentum
and Visual Flow have had access to the products, proprietary information and
trade secrets used by Visual Flow in the Business, (ii) Visual Flow is currently
or has recently marketed the business throughout the entire United States,
Europe, the Middle East and Asia, (iii) the Business is a software business
which can be conducted from (or marketed to customers) anywhere in the world and
(iv) most of Visual Flow's customers are multinational companies with offices
throughout the world, Momentum and Visual Flow agree that:
(a) Each of Momentum, Visual Flow and any Affiliate of either or both
of them shall not at any time after the Closing Date, directly or indirectly,
use for its own benefit or divulge or convey to any third party, any
Confidential Information relating to the Business.
(b) Momentum and Visual Flow shall not retain any copies of any copies
of (and shall not reverse engineer or attempt to reverse engineer) any product
made, designed or marketed by Visual Flow (including, without limitation, any
and all source code, software, product installations and other products), or the
11
marketing and instruction literature relating thereto.
(c) Momentum and Visual Flow acknowledge that (i) the restrictions
contained in this entire Section 5.3 and the provisions requiring the transfer
of the Momentum Option and those dealing with competition and confidentiality
Momentum in Section 2.3 (collectively, the "Confidentiality Provisions") are
reasonable and necessary to protect the legitimate interests of the Purchaser,
(ii) any breach by Momentum or Visual Flow of the Confidentiality Provisions
will result in immediate and irreparable injury to the Purchaser, Xxxxxx and
Xxxxxxxxxx, (iii) in addition to all remedies available at law, the Purchaser,
Xxxxxx and Xxxxxxxxxx, shall be entitled to equitable relief, including
injunctive relief, and an equitable accounting of all earnings, profits or other
benefits arising from such breach and shall be entitled to receive such other
damages, direct or consequential, as may be appropriate, and (iv) the Purchaser,
Xxxxxx and Xxxxxxxxxx shall not be required to post any bond or other security
in connection with any proceeding to enforce the Confidentiality Provisions.
Without limiting the generality of Section 7.4, the Confidentiality
Provisions shall inure to the benefit of any subsequent transferee of the
Business or any substantial portion thereof, whether or not this Agreement is
assigned to such transferee and shall bind the successors, transferees and
assigns of Visual Flow and Momentum (other than the Purchaser, Xxxxxx and
Xxxxxxxxxx).
Section 5.4. Best Efforts; Further Assurances. Subject to the terms and
conditions herein provided, each of the parties hereto shall use its best
efforts to take, or cause to be taken, all action, and to do, or cause to be
done, all things reasonably necessary, proper or advisable under applicable laws
and regulations to consummate and make effective the transactions contemplated
hereby. In the event that at any time after this Agreement has become effective,
any further action is necessary to carry out its purposes, Momentum, Visual Flow
or the proper directors or officers of thereof or, Xxxxxx, Xxxxxxxxxx or the
Purchaser, as the case may be, shall take all such action without any further
consideration therefor.
Section 5.5. Xxxxxx Resignation. Xxxxxx hereby tenders and Momentum
hereby acknowledges receipt of and accepts Xxxxxx'x resignation from Momentum's
Board Directors, effective upon execution of this Agreement by all of the
parties hereto. The parties hereto also acknowledge that the employment by
Momentum and Visual Flow of Xxxxxx and Xxxxxxxxxx terminated on March 31, 1996
and that Momentum and Visual Flow are not liable for any severance or any other
deferred compensation to Xxxxxx and Xxxxxxxxxx.
Section 5.6. Seller's Documents. Momentum and Visual Flow hereby
deliver to the Purchaser all instruments of assignment, transfer and conveyance
identified herein and such other closing documents as requested by the
Purchaser, including the following:
(i) such instruments of sale, transfer, assignment, conveyance and
delivery (including without limitation the Xxxx of Sale set forth as Exhibit B
and the Assignment and Assumption Agreement set forth as Exhibit C), as are
required in order to transfer to the Purchaser good and marketable title to the
Purchased Assets, free and clear of all Encumbrances except as provided herein;
(ii) a certificate of the President of each of Momentum and Visual
Flow, dated the date hereof, as to the incumbency of any officer of such entity
executing this Agreement, the instruments of transfer, and also certifying that
the Certificate of Incorporation and the by-laws of Momentum are both in full
force and effect and have not been amended, restated or altered in any other way
prior to the closing of this transaction, and covering such other matters as the
Purchaser has reasonably requested;
(iii) a certified copy of (1) the Certificate of Incorporation and
by-laws of Visual Flow and all amendments thereto and (2) the resolutions of the
12
Boards of Directors of each of Momentum and Visual Flow authorizing the
execution, delivery and consummation of this Agreement, the instruments of
transfer and the transactions contemplated hereby and thereby; and
(iv) such other documents or instruments as the Purchaser has
reasonably requested to effect the transactions contemplated hereby.
Section 5.7. Purchaser's Documents. The Purchaser hereby delivers to
Momentum and Visual Flow such closing documents as Momentum and Visual Flow have
reasonably requested, including the following:
(i) the Assignment and Assumption Agreement executed by the Purchaser
and dated the date hereof;
(ii) a certificate of the President of the Purchaser, dated the date
hereof, as to the incumbency of any officer thereof executing this Agreement,
the instruments of transfer, and covering such other matters as Momentum and
Visual Flow have reasonably requested;
(iii) a certified copy of (1) the Purchaser's Certificate of
Incorporation and by-laws and all amendments thereto and (2) the resolutions of
the Purchaser's Board of Directors authorizing the execution, delivery and
consummation of this Agreement, the instruments of transfer and the transactions
contemplated hereby and thereby; and
(iv) such other documents or instruments as Momentum and Visual Flow
have reasonably requested to effect the transactions contemplated hereby.
ARTICLE VI
Survival of Representations and Warranties; Indemnification
Section 6.1. Survival of Representations and Warranties. Except as set
forth below, the representations and warranties provided for in this Agreement
shall survive the Closing for five years from the Closing Date for the benefit
of the parties hereto and their successors and assigns. The representations and
warranties provided for in Sections 3.2, 3.4, 3.7, 3.9 and 3.13 shall survive
the Closing and remain in full force and effect forever. The survival period of
each representation or warranty as provided in this Section 6.1 is hereinafter
referred to as the "Survival Period."
Section 6.2. Indemnification. (a) Momentum and Visual Flow jointly and
severally shall indemnify and hold harmless Gusick, Harrington, the Purchaser,
their Affiliates, officers, directors, employees, agents and representatives,
and any Person claiming by or through any of them, against and in respect of any
and all claims, costs, expenses, damages, liabilities, losses or deficiencies
(including, without limitation, counsel's fees and other costs and expenses
incident to any suit, action or proceeding) (the "Damages"), directly or
indirectly, arising out of, resulting from or incurred in connection with (i)
any inaccuracy in any representation or the breach of any warranty made by
Momentum or Visual Flow in this Agreement for the applicable Survival Period and
(ii) any Excluded Liability. Except as specifically provided herein, the
indemnification obligations of Momentum and Visual Flow set forth in this
Section 6.2(a) shall continue in full force and effect forever.
(b) The Purchaser shall indemnify and hold harmless Momentum and Visual
Flow, its Affiliates, officers, directors, employees, agents and
representatives, and any Person claiming by or through any of them, against and
in respect of any and all damages arising out of, resulting from or incurred in
connection with (i) any inaccuracy in any representation or the breach of any
warranty made by the Purchaser in this Agreement for the applicable Survival
Period and (ii) any Assumed Liability. Except as specifically provided herein,
the Purchaser's indemnification obligations set forth in this Section 6.2(b)
13
shall continue in full force and effect forever.
(c) Any Person providing indemnification pursuant to the provisions of
this Section 6.2 is hereinafter referred to as an "Indemnifying Party" and any
Person entitled to be indemnified pursuant to the provisions of this Section 6.2
is hereinafter referred to as an "Indemnified Party." Any Indemnified Party who
is or is threatened to be made a party to any action or proceeding, whether
civil or criminal, shall provide prompt written notice of such action or
proceeding to the Indemnifying Party. The Indemnifying Party shall pay the
reasonable counsel fees and court costs of the Indemnified Party.
ARTICLE VII
Miscellaneous
Section 7.1. Notices. All notices or other communications required or
permitted hereunder shall be in writing and shall be delivered personally, by
facsimile or sent by certified, registered or express air mail, postage prepaid,
and shall be deemed given when so delivered personally, or by facsimile, or if
mailed, five days after the date of mailing, as follows:
If to the Purchaser: EnvisionIt Software Corporation
000 Xxx Xxx Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, Xxx Xxxxxx 00000
Telephone: (000) 000 0000
Facsimile: (000) 000 0000
Attention: Xxxxx Xxxxxx and T. Xxxxxx Xxxxxxxxxx
With a copy to: Xxxxxxxxxx, Sandler, Kohl,
Xxxxxx & Xxxxxx
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
If to Momentum and/or Visual Flow:
Momentum Software Corporation
000 Xxxxx Xxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx Valley
With a copy to: Snow Xxxxxx Xxxxxx P.C.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: H. Xxxxx Xxxxxxxxx, Esq.
or to such other address as any party hereto shall notify the other parties
hereto (as provided above) from time to time.
Section 7.2. Governing Law; Consent to Jurisdiction. This Agreement
shall be governed by, and construed in accordance with, the internal laws of the
State of New Jersey, without reference to the choice of law principles thereof.
Each of the parties hereto irrevocably submits to the exclusive jurisdiction of
the courts of the State of New Jersey and the United States District Court for
the District of New Jersey for the purpose of any suit, action, proceeding or
judgment relating to or arising, directly or indirectly, out of this Agreement
and the transactions contemplated hereby. Service of process in connection with
any such suit, action or proceeding may be served on each party hereto anywhere
14
in the world by the same methods as are specified for the giving of notices
under this Agreement. Each of the parties hereto irrevocably consents to the
jurisdiction of any such court in any such suit, action or proceeding and to the
laying of venue in such court. Each party hereto irrevocably waives any
objection to the laying of venue of any such suit, action or proceeding brought
in such courts and irrevocably waives any claim that any such suit, action or
proceeding brought in any such court has been brought in an inconvenient forum.
Section 7.3. Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original agreement, but all of
which together shall constitute one and the same instrument.
Section 7.4. Assignment; Successors and Assigns; No Third Party Rights.
Except as otherwise provided herein, this Agreement may not be assigned by
operation of law or otherwise, and any attempted assignment shall be null and
void. The Purchaser may assign all of its rights under this Agreement to any
Affiliate; provided such Affiliate assumes all of the obligations of the
Purchaser hereunder. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors, assigns and legal
representatives. This Agreement shall be for the sole benefit of the parties to
this Agreement and their respective successors, assigns and legal
representatives and is not intended, nor shall be construed, to give any Person,
other than the parties hereto and their respective successors, assigns and legal
representatives, any legal or equitable right, remedy or claim hereunder.
Section 7.5. Titles and Headings. The headings and table of contents in
this Agreement are for reference purposes only, and shall not in any way affect
the meaning or interpretation of this Agreement.
Section 7.6. Entire Agreement. This Agreement, including the Schedules
and Exhibits attached thereto, constitutes the entire agreement among the
parties with respect to the matters covered hereby and supersedes all previous
written, oral or implied understandings among them with respect to such matters.
Section 7.7. Amendment, Modification and Waiver. This Agreement may
only be amended or modified in writing signed by the party against whom
enforcement of such amendment or modification is sought. Any of the terms or
conditions of this Agreement may be waived at any time by the party or parties
entitled to the benefit thereof, but only by a writing signed by the party or
parties waiving such terms or conditions.
Section 7.8. Severability. The invalidity of any portion hereof shall
not affect the validity, force or effect of the remaining portions hereof. If it
is ever held that any restriction hereunder is too broad to permit enforcement
of such restriction to its fullest extent, such restriction shall be enforced to
the maximum extent permitted by law.
Section 7.9. No Strict Construction. Each of the Purchaser, Gusick,
Harrington, Visual Flow and Momentum acknowledge that this Agreement has been
prepared jointly by the parties hereto, and shall not be strictly construed
against either party.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
MOMENTUM SOFTWARE CORPORATION
By: /s/ Xxxxxx X. Valley, Jr.
Name: Xxxxxx X. Valley, Jr.
Title: CEO & President
15
VISUAL FLOW, INC.
By: /s/ Xxxxxx X. Valley, Jr.
Name: Xxxxxx X. Valley, Jr.
Title: President
ENVISIONIT SOFTWARE CORPORATION
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: CEO
/s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
/s/ T. Xxxxxx Xxxxxxxxxx
T. Xxxxxx Xxxxxxxxxx
16
