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EXHIBIT 2.1 (d)
PAYING AGENT AGREEMENT
THIS PAYING AGENT AGREEMENT is made as of February 13, 1998, by and
among Xxxxxx Xxx and Xxxxxxxxxxx Xxxx (each, a "Paying Agent"), and each of the
other signatories hereto (individually, a "Seller" and collectively, the
"Sellers"), which Sellers constitute the holders of all of the issued and
outstanding shares of capital stock and outstanding options of ProMIRA Software
Incorporated, a Nova Scotia limited company ("Company").
BACKGROUND:
A. Pursuant to a certain Stock Purchase Agreement dated as of
the date hereof by and among Insight Venture Partners I, L.P., Wexford Insight
Canada, L.P., Arca Investments Inc., Capital d'Amerique CDPQ Inc., CBC Pension
Board of Trustees, Gee & Co., The Canada Trust Company a/c 000-000000-0, XxXxxx
University Pension Fund, Royal Trust Corporation of Canada in Trust for Account
No. 083166009, Royal Trust Corporation of Canada in Trust for Account No.
029361001, Association de bienfaisance et de retraite des policiers de la
Communaute urbaine de Montreal, Ontario Hydro in Trust for the Pension Fund, Sun
Life Assurance Company of Canada, The Canada Trust Company Account No. 055-
180251-6, Altacap Investors Inc., Xxxxx Xxxxx, Xxxxxx Xxxxx, Xxx Xxxxx, Xxxxxx
Xxxxx, The Xxxxx Family Trust, Xxx XxXxxxxx, Xxxxx XxXxxxxx, Xxxxx Xxxxxxx,
Xxxxx Xxxxxxx, Xxxxx Xxxxxx, Xxxxxxx Xxxxxx, Laurentian Bank of Canada ITF
Xxxxxxx X. Xxxxxxx, RBC Dominion Securities ITF Xxx XxXxxxxx, RBC Dominion
Securities ITF Xxxxxx Xxxxx, RBC Dominion Securities ITF Xxxxx Xxxxxx, Xxxxx
Xxxx, Xxxx Xxxx, Xxxxxx Xxxxxxxx, Xxxxx and Xxxx Xxxx in Trust for Xxxxxxx Xxxx,
Xxxxx and Xxxx Xxxx in Trust for Xxxxxxx Xxxx, Xxxx Xxxxx, Xxxxx Xxxxxx, Xxxxxx
Xxxxxxxx, Xxxxx Xxxxxx, Xxxxx Xxxxxx, Xxxxxx Xxxxxxx, Xxxxxx Xxxxxxxx, Xxx Xxxx,
Xxxxx Xxxxxxxxx, Xxxxxx Xxxxxxxx, Xxxx Xxxxx, Xxxx Xxxxxxxxxx, Xxxxxx
XxXxxxxxxx, Xxxxxx Xxxx, Xxxxxxx Xxxxxxxxx, Xxxx Xxxxx, Xxxxxxx Xxxxx, Xxx Xxxx,
Xxxxxx Xxxxxx, Xxx Xxxxxx, Xxxxxx XxxXxxxxx, Xxxxx XxXxxxx, Xxxx XxXxxxx, Xxx
XxXxxxxx, Xxxxx Xxxxx, Xxxxxx Removic, Xxxx Xxxxx, Xxxxxx Xxxxx, Xxxx Xxxxx,
Xxxxxxxx Saint- Laurent, Xxxxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxx Xxxxxx, Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxx, Xxxxxxx Xxxxxx, Xxxx van Galder, Xxxxx Xxxxxxx, Xxxxxxx
Xxxxx, Xxx Xxxx, Xxxx Xxxxxxxx, Xxxxx Xxxxxx, Xxxxxx Xxxxx, RBC Dominion
Securities ITF Xxxxx XxXxxxx, Xxxxx Xxxxxx XXX c/f Xxxxxx XxXxxxxxxx, Xxx Xxxxx,
Xxxxx Xxxxxxx, Xxxxx Xxxxxx, Xxx Xxxxxxx, Xxxx Xxxxxxx, Xxxxx Xxxxxxxxx, Xxxx
Xxxxxx, Xxxx Xxxxxx, Xxx Xxxxxx, Xxxxx Xxxxxxx, Xxxxx Xxxxxxxxx, Xxxx Xxxx,
Xxxxx Xxxxxxxx, Xxxx Xxxxxxxx, Xxxxx Xxxxx and Hie Xxxx Xxxx (individually a
"Seller" and collectively, the "Sellers"), Manugistics Nova Scotia Company, a
Nova Scotia unlimited liability company ("Buyer"), ProMIRA Software Incorporated
(the "Company") and Paying Agent, including the Exhibits thereto (the "Stock
Purchase Agreement"), the Sellers have agreed to sell to Buyer, and Buyer has
agreed to purchase from the Sellers, all of the issued and outstanding shares of
capital stock of the
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Company.
B. Pursuant to the Stock Purchase Agreement, the Sellers have
appointed Paying Agent to act as their agent and attorney-in-fact and
representative in accordance with the terms of the Stock Purchase Agreement,
that certain Custodian Agreement dated as of the date hereof by and among Buyer,
Paying Agent and State Street Bank and Trust Company, as custodian (the
"Custodian Agreement"), that certain Escrow Agreement dated as of the date
hereof by and among Buyer, Paying Agent and State Street Bank and Trust Company,
as escrow agent (the "Escrow Agreement"), and that certain Registration Rights
Agreement dated as of the date hereof by and among Manugistics Group, Inc., the
Sellers and Paying Agent (the "Registration Rights Agreement"), and this Paying
Agent Agreement.
C. All capitalized terms not otherwise defined herein shall
have the meanings ascribed to such terms in the Stock Purchase Agreement.
NOW, THEREFORE, in consideration of the foregoing background and of
the mutual covenants set forth herein and in the Stock Purchase Agreement, the
parties hereto, intending to be legally bound, hereby agree as follows:
1. APPOINTMENT AND DUTIES OF PAYING AGENT; FULL ACCEPTANCE.
(a) The Sellers hereby appoint and designate Xxxxxx
Xxx and Xxxxxxxxxxx Xxxx, or either of them acting alone, as paying agent, to
act as their agent and attorney-in-fact and representative under the Stock
Purchase Agreement, the Escrow Agreement, the Custodian Agreement, the
Registration Rights Agreement and this Paying Agent Agreement, (collectively,
the "Transaction Agreements") with full power and authority to act in the name,
place and stead and for an on behalf of each Seller, to receive on behalf of
each Seller service of process in any suit, action or other legal proceeding
arising out of or relating to the Transaction Agreements and the transactions
contemplated thereby, and for the purposes set forth therein, and Paying Agent
does hereby accept such appointment under the terms and conditions set forth
therein. Pursuant to this Section 1, Paying Agent shall have such power, as
aforesaid, including, without limitation, the power to:
(i) to receive from each Seller the
Transaction Agreements and other materials sent to each Seller in connection
with the Stock Purchase Agreement, to insert signature pages into the
Transaction Agreements as provided by each Seller, to insert the date and
Closing Date into the Transaction Agreements as determined by the Paying Agent
and to make changes to the Transaction Agreements which individually or in the
aggregate are
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not materially adverse to the Sellers and to otherwise take such actions as are
necessary to complete the transactions contemplated under the Stock Purchase
Agreement;
(ii) to take any and all actions which
are necessary for the Paying Agent to effectuate the Paying Agent's obligations
under the Transaction Agreements which individually or in the aggregate are not
materially adverse to the Sellers including, without limitation, the
distribution of cash and shares of common stock of Manugistics Group, Inc. to
the Sellers under the Stock Purchase Agreement, the delivery of Prospectuses to
the Sellers pursuant to the Registration Rights Agreement;
(iii) to sell, transfer, or assign any
of the Manugistics Group Shares to be issued to or for the benefit of each
Seller as necessary to effectuate the Paying Agent's obligations under the
Transaction Agreements which individually or in the aggregate are not materially
adverse to the Sellers;
(iv) to execute and deliver any
agreement, certificate, notice, request or other document or instrument as
necessary to effectuate the Paying Agent's obligations under the Transaction
Agreements;
(v) to deal with any Disbursement
Notices under the Escrow Agreement and to negotiate and settle any and all
disputes arising under the Transaction Agreements including, without limitation,
the negotiation, settlement and agreement to the payment of any indemnification
claims asserted against the Sellers under any of the Transaction Agreements or
on behalf of the Sellers against the Buyer;
(vi) to retain legal counsel in
connection with any and all matters under the Transaction Agreements as
necessary to effectuate the Paying Agent's obligations under the Transaction
Agreements;
(vii) to do all other things, take any
and all steps and perform all other acts required, contemplated by or deemed
advisable, in the sole reasonable judgment of Paying Agent, in connection with
the Transaction Agreements as necessary to effectuate the Paying Agent's
obligations under the Transaction Agreements which individually or in the
aggregate are not materially adverse to the Sellers;
(viii) to retain legal counsel,
accountants and other professionals in connection with any and all matters
referred to herein (such counsel and other professionals may, but need not be,
the counsel and other professionals for the Company); and
(ix) to exercise such other rights,
powers and
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authority as are incidental to any of the foregoing.
(b) Except for the Appointment of the Purchaser
Representative executed by each Seller pursuant to the Registration Rights
Agreement, each Seller hereby agrees that the appointment of Paying Agent hereby
revokes any and all powers of attorney heretofore granted by such Seller that
authorized any other person(s) or entity to represent such Seller with regard to
the Transaction Agreements. In the event any Seller shall die or become
incompetent or be liquidated or dissolved or become bankrupt or insolvent, or if
any other similar event should occur or proceeding be instituted in connection
therewith, before the termination of this Paying Agent Agreement, as provided in
Section 5 hereof, any Manugistics Group Shares or other sums to be distributed
hereunder to such Seller shall be delivered by or on behalf of such Seller in
accordance with the terms of the Transaction Agreements, and actions taken by
Paying Agent under any of the Transaction Agreements shall be valid as if such
death, incapacity, liquidation, dissolution, bankruptcy, insolvency or other
event had not occurred, or such proceeding had not been instituted, regardless
of whether Paying Agent shall have received notice thereof.
2. SURRENDER OF CERTIFICATES.
(a) Upon surrender of the Certificates to Paying
Agent and Paying Agent's surrender of the Certificates to Buyer, as provided in
the Stock Purchase Agreement, and subject to all other terms and conditions of
the Stock Purchase Agreement, each Seller shall be entitled to receive in
exchange therefor that portion of the Purchase Price allocated to such Seller as
provided in EXHIBIT I hereto, all as more fully described in Section 3 hereof.
(b) If that portion of the Purchase Price allocated
to any Seller as provided in EXHIBIT I hereto is to be delivered to a person or
entity other than that person in whose name the Certificates surrendered in
exchange therefor are registered, it shall be a condition to the payment of such
portion of the Purchase Price that (i) the Certificates so surrendered shall be
properly endorsed or accompanied by appropriate stock transfer powers and any
other documents reasonably required by Buyer and otherwise in proper form for
transfer, and (ii) the person or entity requesting such transfer pay to Paying
Agent any transfer or other taxes payable by reason of the foregoing or
establish to the satisfaction of Paying Agent that such taxes have been paid or
are not required to be paid.
(c) If any Certificate shall have been lost, stolen
or destroyed, upon the delivery to Paying Agent of an affidavit of such loss,
theft or destruction by the person claiming such Certificate to be lost, stolen
or destroyed, Paying Agent will
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pay that portion of the Purchase Price allocated to such Seller as provided in
EXHIBIT I hereto; provided, however, that as a condition to such payment,
Paying Agent may, in its discretion, but shall not be obligated to, require the
owner of such lost, stolen or destroyed Certificate to give to Paying Agent a
bond in such sum as Paying Agent may reasonably direct as indemnity against any
claim that may be made with respect to the Certificate alleged to have been
lost, stolen or destroyed.
3. DISPOSITIONS BY PAYING AGENT.
(a) Cash Purchase Price. Within ten (10) business
days after receipt of the Cash Purchase Price from Buyer, Paying Agent shall
distribute the Cash Purchase Price among the Preferred Shareholders in the
manner provided in Column No. 1 on EXHIBIT I hereto.
(b) Group A Distributable Shares. Within ten (10)
business days after receipt of written notice from Buyer that Boston EquiServe
Limited Partnership (the "Transfer Agent") has registered the Group A
Distributable Shares in the name of Paying Agent, Paying Agent shall, by written
instructions, substantially in the form attached hereto as EXHIBIT II, direct
the Transfer Agent to register the Group A Distributable Shares in the name of
those of the Sellers entitled thereto in the manner provided in Column No. 6 on
EXHIBIT I hereto.
(c) Group B Distributable Shares. Within ten (10)
business days after receipt of written notice from Buyer that the Transfer Agent
has registered the Group B Distributable Shares in the name of Paying Agent,
Paying Agent shall, by written instructions, substantially in the form attached
hereto as EXHIBIT II, direct the Transfer Agent to register the Group B
Distributable Shares in the name of those of the Sellers entitled thereto in the
manner provided in Column No. 7 on EXHIBIT I hereto.
(d) Group C Distributable Shares. Within ten (10)
business days after receipt of written notice from Buyer that the Transfer Agent
has registered the Group C Distributable Shares in the name of Paying Agent,
Paying Agent shall, by written instructions, substantially in the form attached
hereto as EXHIBIT II, direct the Transfer Agent to register the Group C
Distributable Shares in the name of those of the Sellers entitled thereto in the
manner provided in Column No. 8 on EXHIBIT I hereto.
(e) Group 1 Custodian Shares. Within ten (10)
business days after receipt of written notice from the Custodian on each
occasion that the Transfer Agent has registered any Group 1 Custodian Shares in
the name of Paying Agent, Paying Agent shall, by written instructions,
substantially in the form
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attached hereto as EXHIBIT II, direct the Transfer Agent to register such Group
1 Custodian Shares in the name of those of the Sellers entitled thereto in the
manner provided in Column No. 9 on EXHIBIT I hereto.
(f) Group 2 Forfeitable Custodian Shares. Within ten
(10) business days after receipt of written notice from the Custodian on each
occasion that the Transfer Agent has registered any Group 2 Forfeitable
Custodian Shares in the name of Paying Agent, Paying Agent shall, by written
instructions, substantially in the form attached hereto as EXHIBIT II, direct
the Transfer Agent to register such Group 2 Forfeitable Custodian Shares in the
name of the Group 2 Employees in the manner provided in Column No. 10 on EXHIBIT
I hereto, other than those Group 2 Forfeitable Custodian Shares which the
Custodian has directed the Transfer Agent to register in the name of Buyer or
its designee with respect to any Group 2 Employee who shall have been subject of
an Employment Termination as provided in Section 3.3(b)(iii)(A) of the Stock
Purchase Agreement, and except as provided in the Stock Purchase Agreement.
(g) Group 3 Forfeitable Custodian Shares. Within ten
(10) business days after receipt of written notice from the Custodian that the
Transfer Agent has registered the Group 3 Forfeitable Custodian Shares in the
name of Paying Agent, Paying Agent shall, by written instructions, substantially
in the form attached hereto as EXHIBIT II, direct the Transfer Agent to register
the Group 3 Forfeitable Custodian Shares in the name of those of the Sellers
entitled thereto in the manner provided in Column No. 11 on EXHIBIT I hereto,
other than those of the Group 3 Forfeitable Custodian Shares which the Custodian
has directed the Transfer Agent to register in the name of Buyer or its designee
with respect to any Seller entitled to any such Group 3 Forfeitable Custodian
Shares who shall have been subject of an Employment Termination as provided in
Section 3.3(b)(iv) of the Stock Purchase Agreement, and except as provided in
the Stock Purchase Agreement.
(h) Distributable One Year Escrow Balance. Within
ten (10) business days after receipt of written notice from the Escrow Agent
that the Transfer Agent has registered all Manugistics Group Shares included in
the Distributable One Year Escrow Balance in the name of Paying Agent, Paying
Agent shall, by written instructions, substantially in the form attached hereto
as EXHIBIT II, direct the Transfer Agent to register all Manugistics Group
Shares and other amounts, if any, included in the Distributable One Year Escrow
Balance in the name of the Sellers in the manner provided in Column No. 13 on
EXHIBIT I hereto; it being acknowledged and understood that Paying Agent shall
make appropriate adjustments to the percentages of the Distributable One Year
Escrow Balance reflected in Column No. 13 on EXHIBIT I hereto as necessary to
account for claims paid to
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Buyer from the One Year Escrow Fund arising from the breach or non-fulfillment
of the respective obligations of only some but not all of the Sellers whose
shares comprise the One Year Escrow Fund and as otherwise provided in the Stock
Purchase Agreement.
(i) Distributable Two Year Escrow Balance. Within
ten (10) business days after receipt of written notice from the Escrow Agent
that the Transfer Agent has registered all Manugistics Group Shares included in
the Distributable Two Year Escrow Balance in the name of Paying Agent, Paying
Agent shall, by written instructions, substantially in the form attached hereto
as EXHIBIT II, direct the Transfer Agent to register all Two Year Escrow Shares
and other amounts, if any, included in the Distributable Two Year Escrow Balance
in the name of the Sellers in the manner provided in Column No. 15 on EXHIBIT I
hereto; it being acknowledged and understood that Paying Agent shall make
appropriate adjustments to the percentages of the Distributable Two Year Escrow
Balance reflected in Column No. 15 on EXHIBIT I hereto as necessary to account
for claims paid to Buyer from the Two Year Escrow Fund arising from the breach
or non-fulfillment of the respective obligations of only some but not all of the
Sellers whose shares comprise the Two Year Escrow Fund and as otherwise provided
in the Stock Purchase Agreement.
Notwithstanding anything to the contrary contained in this Section 3, with
respect to each of the Group 2 Employees and Sellers entitled to Group 3
Forfeitable Custodian Shares residing in the United States, as identified in
Column No. 16 on EXHIBIT I hereto (individually, a "US Seller" and collectively,
the "US Sellers"), on each occasion that the Transfer Agent registers any of the
Manugistics Group Shares in the name of Paying Agent for disbursement to any of
the US Sellers, Paying Agent shall obtain from Manugistics, Inc. a schedule of
all state, local, FICA and medicare tax and withholding obligations of
Manugistics, Inc. with respect to each US Seller arising in connection with the
disbursement of such Manugistics Group Shares (a "Schedule of Withholdings"),
and Manugistics, Inc. shall provide a Schedule of Withholdings to Paying Agent
within two (2) business days after receipt of a request therefor, whereupon
Paying Agent shall, by written instructions, substantially in the form attached
hereto as EXHIBIT III, direct the Transfer Agent to register in the name of
Buyer and/or its affiliates, a sufficient number of such Manugistics Group
Shares allocable to each US Seller, based upon the market value of Manugistics
Group's common stock, par value $.002 per share, as established by the Nasdaq
Exchange closing price on the Closing Date with respect to Manugistics Group
Shares distributed to Paying Agent at the Closing and with respect to all
subsequent distributions to Paying Agent of Manugistics Group Shares by Escrow
Agent and Custodian, as the case may be, as of the date of such distribution,
rounded up to the next full share, for the satisfaction of all state, local,
FICA and medicare tax and withholding obligations of Manugistics,
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Inc. with respect to each US Seller arising in connection with the disbursement
of such Manugistics Group Shares, as set forth in such Schedule of
Withholdings, whereupon Buyer and/or its affiliates shall make all remittances
to the applicable taxing authorities with respect thereto.
4. INTERMEDIATE TRANSFER OF MANUGISTICS GROUP SHARES. If, during the
term of this Paying Agent Agreement, any Seller transfers any or all of the
Manugistics Group Shares allocated to such Seller on EXHIBIT I hereto, the
Paying Agent shall have no obligation to disburse any portion of the Purchase
Price allocated to such Seller to such transferee unless such Seller shall have
effected such transfer in accordance with the terms of the Transaction
Agreements, and shall have provided prompt written notice of such transfer to
the Paying Agent and Manugistics Group, which notice shall set forth (a) the
name and address of such transferee; (b) the effective date of such transfer;
(c) the number of Manugistics Group Shares transferred by such Seller to such
transferee; (d) the designation of such Manugistics Group Shares as specified on
EXHIBIT I hereto; and (e) a certification by such Seller that such transfer was
effected in accordance with all of the terms and conditions of the Transaction
Agreements.
5. TERMINATION. Upon disbursement by Paying Agent of the Cash
Purchase Price, the Group A Distributable Shares, Group B Distributable Shares,
the Group C Distributable Shares, the Group 1 Custodian Shares, the Group 2
Forfeitable Custodian Shares, the Group 3 Forfeitable Custodian Shares, the
Distributable One Year Escrow Balance, and the Distributable Two Year Escrow
Balance in full, this Paying Agent Agreement shall terminate, subject to the
provisions of Sections 9 and 11 hereof, which Sections shall survive such
termination.
6. DUTIES AND RESPONSIBILITIES OF PAYING AGENT.
(a) Buyer and the Sellers acknowledge and agree that
Paying Agent (i) shall be obligated only for the performance of such duties as
are specifically set forth in this Paying Agent Agreement and the other
Agreements, except for those provisions of the Stock Purchase Agreement
including all Schedules and Exhibits thereto directly related to the terms of
this Paying Agent Agreement; (ii) shall not be obligated to take any legal or
other action hereunder which might in its judgment involve any expense or
liability unless it shall have been furnished with reasonably acceptable
indemnification; (iii) may rely on and shall be protected in acting or
refraining from acting upon any written notice, instruction, instrument,
statement, request or document furnished to it hereunder and believed by it to
be genuine and to have been signed or presented by the proper person, and shall
have no responsibility for determining the accuracy thereof; and (iv) may
consult counsel satisfactory to
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it, including house counsel, and the opinion of such counsel shall be full and
complete authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in accordance with the opinion of
such counsel.
(b) Paying Agent shall not be liable to any Seller
for any action taken or omitted to be taken by the Paying Agent hereunder
including, without limitation, the consequences of the volatility of the
Manugistics Group Shares and/or the fact that any distribution thereof by Paying
Agent may or may not be made on any specific date, except as otherwise required
by this Paying Agent Agreement except in the case of gross negligence, fraud or
willful misconduct
(c) The duties, responsibilities and authority of
Paying Agent hereunder shall continue after, and shall not be affected by, the
Closing under the Stock Purchase Agreement.
7. RIGHTS TO THE ASSETS. Subject to Section 9 hereof and any
claims by Buyer and/or its affiliates for withholding taxes as provided in the
Stock Purchase Agreement, all of the Cash Purchase Price, the Group A
Distributable Shares, the Group B Distributable Shares, the Group C
Distributable Shares, the Group 1 Custodian Shares, the Group 2 Forfeitable
Custodian Shares, the Group 3 Forfeitable Custodian Shares, the Distributable
One Year Escrow Balance, the Distributable Two Year Escrow Balance, or any
portion of the foregoing, to be disbursed by Paying Agent hereunder
(collectively, the "Assets") shall be for the exclusive benefit of the Sellers,
their respective successors and assigns, and any other recipients designated
herein, as provided herein and in the Stock Purchase Agreement, and no other
person or entity shall have any right, title or interest therein, other than
the rights of Paying Agent and other authorized agents of the Sellers expressly
provided herein.
8. REPRESENTATION AND WARRANTY OF THE SELLERS. Each Seller
hereby represents and warrants that such Seller's name, address, ownership of
Shares and/or Options, as set forth on EXHIBIT 1(A) hereto, as well as the
allocation of the Purchase Price to such Seller, as set forth on EXHIBIT I
hereto, is true and correct.
9. INDEMNIFICATION. The Sellers severally (and not jointly)
according to their pro rata share as defined below in this Section 9 shall hold
Paying Agent harmless and indemnify Paying Agent against any loss, liability,
expense (including attorneys' fees and expenses), claim or demand (a "Loss")
that may be incurred by Paying Agent arising out of or in connection with the
performance of its obligations in accordance with the provisions of this Paying
Agent Agreement. Paying Agent is expressly authorized to establish reasonable
reserves out of the Assets for the payment or reimbursement of expenses,
including
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fees and expenses of legal counsel consulted by Paying Agent, as authorized
under this Paying Agent Agreement, or for the purpose of ensuring that adequate
funds are available to satisfy the indemnity hereunder with respect to any
Loss. Paying Agent may collect such Loss directly from the Assets. The Sellers
shall be severally liable for any obligation of the Sellers under this Section
9, based upon the relative portion of the Manugistics Group Shares initially
held by such Seller or to be held by such Seller, as provided in Column No. 5
on EXHIBIT I hereto (and limited in amount to the amount of the Assets received
or to be received by such Seller hereunder). None of the foregoing indemnities
will apply to any Loss or action arising out of the gross negligence, fraud or
willful misconduct of Paying Agent.
10. TAXES. For purposes of federal, state, provincial and local
taxes, and any other assessments and governmental charges that may be imposed on
the income earned, gains or interest realized on, for or from the Assets, (a)
such income, gains or interest shall be treated as taxable income to the
Sellers; (b) the Sellers shall be solely responsible for any federal, state,
provincial or local taxes or any other assessments and governmental charges that
may be imposed on such income, gains or interest; and (c) the Sellers agree to
provide Paying Agent with sufficient information to perform its tax reporting
functions within a reasonable period after the occurrence of such obligations.
11. DISPUTE RESOLUTION. It is understood and agreed that should
any dispute arise with respect to the delivery, ownership, right of possession,
and/or disposition of any of the Assets, or should any claim be made upon any of
the Assets by a third party, Paying Agent, upon receipt of written notice of
such dispute or claim by any of the parties hereto or by a third party, is
authorized and directed to retain in its possession, without liability to
anyone, any portion of such Assets which is the subject of such dispute until
such dispute shall have been settled either by the mutual agreement of the
parties involved (as evidenced by appropriate written instructions to Paying
Agent signed by the Sellers) or by a final order, decree or judgment of a court
of competent jurisdiction, the time for perfection of an appeal of such order,
decree or judgment having expired. Paying Agent may, but shall be under no duty
whatsoever to, institute or defend any legal proceedings which relate to the
Assets. In the event of any dispute between or among any of the parties to this
Paying Agent Agreement, or between or among them or any of them and any other
person, resulting in adverse claims or demands being made upon the Assets, or in
the event that Paying Agent, in good faith, is in doubt as to what action it
should take hereunder, Paying Agent may, at its option, file suit in
interpleader in a court of competent jurisdiction, or refuse to comply with any
claims or demands on it, or refuse to take any other action hereunder, so long
as such dispute shall continue or
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such doubt shall exist. Paying Agent shall promptly notify the Sellers of any
claim for indemnification which has been made.
12. RESIGNATION AND REMOVAL. Paying Agent may resign and be
discharged from its duties or obligations hereunder by giving thirty (30) days'
written notice to Buyer and the Sellers. Such resignation shall take effect
thirty (30) days after the giving of such notice, or upon such later date as
specified in such notice, or upon receipt by Paying Agent of an instrument of
acceptance executed by a successor paying agent and upon delivery by Paying
Agent to such successor of all the funds or securities then held by Paying Agent
hereunder. Upon receipt of such an instrument of acceptance, a successor paying
agent appointed by Paying Agent shall become Paying Agent hereunder on the
resignation date specified in such notice. If a written instrument of acceptance
by a successor paying agent shall not have been delivered to Buyer and the
Sellers prior to the effective date of such resignation, the Sellers, upon the
vote of the Sellers holding a majority of the Manugistics Group Shares, as set
forth in Column No. 5 on EXHIBIT I hereto, may substitute a new paying agent by
written notice thereof to Paying Agent and Buyer and paying all fees and
expenses of such successor. In addition, the Sellers may, upon the vote of the
Sellers holding a majority of the Manugistics Group Shares, as set forth in
Column No. 5 on EXHIBIT I hereto, upon ten (10) days' prior written notice to
Buyer and Paying Agent, appoint a substitute paying agent to act as Paying Agent
for all purposes at any time for any or no reason. Any successor paying agent
appointed in accordance with this Section 12 shall thereafter be Paying Agent
for all purposes of this Paying Agent Agreement.
13. PAYING AGENT NOT PERSONALLY LIABLE. All of the parties
hereto expressly recognize that Paying Agent, acting in such capacity, shall not
have any personal liability hereunder, including, without limitation, under
Section 6 hereof, or in any other fashion under this Paying Agent Agreement;
provided, however, that Paying Agent shall be liable for the Paying Agent's own
gross negligence, willful misconduct and fraud.
14. NOTICES. Any notice permitted or required hereunder shall
be deemed to have been duly given if delivered personally or if sent by
overnight courier, postage prepaid, to the parties at their address set forth
below:
If to Buyer:
c/o Manugistics, Inc.
Attention: General Counsel
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000-0000
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with a copy to:
Xxxxxxxx Xxxxxx LLP
3200 The Mellon Bank Center
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxx, Esquire
If to Paying Agent:
Xxxxxx Xxx/Xxxxxxxxxxx Xxxx
c/o Miralta Capital Inc.
000 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxxx X0X 0X0
Xxxxxx
with a copy to:
Fraser & Xxxxxx
000 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxx X0X 0X0
Xxxxxx
Attention: X.X. Xxxxxxx
If to the Sellers to:
The address for each Seller
specified on EXHIBIT VII hereto
If to the Transfer Agent:
Boston EquiServe Limited Partnership
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxx X. Xxxxx, Account Manager
or at such other address as any of the above may have furnished to the other
parties in writing, as aforesaid, and any such notice or communication given in
the manner specified in this Section 14 shall be deemed to have been given as of
the date so mailed. The Paying Agent shall have no liability to a Seller for
failing to deliver funds or instruments to such Seller if such funds or
instruments are sent in accordance with the provisions of this Section 14.
15. SEVERABILITY. If any term, provision, covenant or restriction of
this Paying Agent Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Paying Agent Agreement shall remain in full
force and effect
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and shall in no way be affected, impaired or invalidated.
16. SUCCESSORS AND ASSIGNS; ASSIGNMENT. This Paying Agent
Agreement shall be binding upon and shall inure to the benefit of and be
enforceable by the heirs, executors, administrators, personal representatives,
successors and assigns of the parties hereto; provided, however, that no party
hereto shall assign this Paying Agent Agreement without first obtaining the
prior written consent of the others and giving written notice thereof to Paying
Agent.
17. MODIFICATIONS. This Paying Agent Agreement may not be
altered or modified without the express written consent of all parties hereto.
No course of conduct shall constitute a waiver of any of the terms and
conditions of this Paying Agent Agreement, unless such waiver is specified in
writing, and then only to the extent so specified. A waiver of any of the terms
and conditions of this Paying Agent Agreement on one occasion shall not
constitute a waiver of the other terms of this Paying Agent Agreement, or of
such terms and conditions on any other occasion.
18. GOVERNING LAW. This Paying Agent Agreement shall be
governed by and construed under the laws of the State of
Delaware.
19. CONSENT TO JURISDICTION AND SERVICE. The parties hereby
absolutely and irrevocably consent and submit to the jurisdiction of the courts
of the State of Delaware and of any Federal court located in said State in
connection with any actions or proceedings brought against any party hereto and
arising out of or relating to this Paying Agent Agreement. In any such action or
proceeding, the parties hereby absolutely and irrevocably waive personal service
of any summons, complaint, declaration or other process and hereby absolutely
and irrevocably agree that the service thereof may be made by certified or
registered first-class mail directed to such parties at their respective
addresses in accordance with Section 14 hereof.
20. FORCE MAJEURE. No party hereto shall be responsible for
delays or failures in performance resulting from acts beyond its control. Such
acts shall include, without limitation, acts of God, strikes, lockouts, riots,
acts of war, epidemics, governmental regulations superimposed after the fact,
fire, communication line failures, computer viruses, power failures,
earthquakes or other disasters.
21. REPRODUCTION OF DOCUMENTS. This Paying Agent Agreement and
all documents relating hereto, including, without limitation, (a) consents,
waivers and modifications which may hereafter be executed, and (b) certificates
and other information previously
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or hereafter furnished, may be reproduced by any photographic, photostatic,
microfilm, optical disk, micro-card, miniature photographic or other similar
process. The parties agree that any such reproduction shall be admissible in
evidence as the original itself in any judicial or administrative proceeding,
whether or not the original is in existence and whether or not such
reproduction was made by a party in the regular course of business, and that
any enlargement, facsimile or further reproduction of such reproduction shall
likewise be admissible in evidence.
22. HEADINGS. The section headings herein are for convenience
only and shall not affect the construction thereof.
23. BUSINESS DAY. For purposes of this Paying Agent Agreement,
the term "business day" shall mean any day during the year on which banks are
not authorized to be closed in the States of Delaware and Massachusetts, United
States of America or in the Provinces of Xxxx Xxxxxx xxx Xxxxxxx, Xxxxxx.
24. PREPARATION OF THE AGREEMENT. The parties acknowledge that
they have requested and are satisfied that this Agreement be drawn up in
English. Les parties reconnaissent qu'elles ont exige que la presente
convention soit redigee en anglais et s'en declarent satisfaites.
25. COUNTERPARTS. This Paying Agent Agreement may be executed
in several counterparts, including, without limitation, execution by facsimile,
each of which shall be an original, but all of which together shall constitute
one and the same agreement.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Paying Agent
Agreement to be executed on the day and year first above written.
---------------------------------------
XXXXXX XXX, Paying Agent
---------------------------------------
XXXXXXXXXXX XXXX, Paying Agent
INSIGHT VENTURE PARTNERS I, L.P.
Attest: BY: Insight Venture Associates,
LLC, a Delaware limited
liability company, Its General
Partner
BY:
------------------------- ------------------------------
Title: Title:
WEXFORD INSIGHT CANADA, L.P.
Attest: BY: Wexford Management LLC, a
Delaware limited liability
company, Its General Partner
BY:
------------------------- ------------------------------
Title: Title:
Attest: ARCA INVESTMENTS INC.
BY:
------------------------- -----------------------------------
Title: Title:
BY:
-----------------------------------
Title:
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16
Attest: CAPITAL D'AMERIQUE CDPQ INC.
BY:
------------------------- -----------------------------------
Title: Title:
BY:
-----------------------------------
Title:
Attest: CBC PENSION BOARD OF TRUSTEES
BY:
------------------------- -----------------------------------
Title: Title:
BY:
-----------------------------------
Title:
Attest: GEE & CO.
BY:
------------------------- -----------------------------------
Title: Title:
BY:
-----------------------------------
Title:
Attest: THE CANADA TRUST COMPANY A/C
000-000000-0
BY:
------------------------- -----------------------------------
Title: Title:
BY:
-----------------------------------
Title:
Attest: XXXXXX UNIVERSITY PENSION FUND
BY:
------------------------- -----------------------------------
Title: Title:
BY:
-----------------------------------
Title:
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Attest: ROYAL TRUST CORPORATION OF CANADA
IN TRUST FOR ACCOUNT NO.
029361001
BY:
------------------------- -----------------------------------
Title: Title:
BY:
-----------------------------------
Title:
Attest: ROYAL TRUST CORPORATION OF CANADA
IN TRUST FOR ACCOUNT NO.
083166009
BY:
------------------------- -----------------------------------
Title: Title:
BY:
-----------------------------------
Title:
Attest: ASSOCIATION DE BIENFAISANCE ET DE
RETRAITE DES POLICIERS DE LA
COMMUNAUTE URBAINE DE MONTREAL
BY:
------------------------- -----------------------------------
Title: Title:
BY:
-----------------------------------
Title:
Attest: ONTARIO HYDRO IN TRUST FOR THE
PENSION FUND
BY:
------------------------- -----------------------------------
Title: Title:
BY:
-----------------------------------
Title:
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Attest: SUN LIFE ASSURANCE COMPANY
OF CANADA
BY:
------------------------- -----------------------------------
Title: Title:
BY:
-----------------------------------
Title:
Attest: THE CANADA TRUST COMPANY
ACCOUNT NO. 000-000000-0
BY:
------------------------- -----------------------------------
Title: Title:
BY:
-----------------------------------
Title:
Attest: ALTACAP INVESTORS INC.
BY:
------------------------- -----------------------------------
Title: Title:
BY:
-----------------------------------
Title:
------------------------- --------------------------------------
Xxxxx Xxxxx Xxxxxx Xxxxx
------------------------- --------------------------------------
Xxxxxx Xxxxx Xxx Xxxxx
The Xxxxx Family Trust
By:
-----------------------------------
Trustee
By:
-----------------------------------
Trustee
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--------------------------------------
Xxx XxXxxxxx
--------------------------------------
Xxxxx XxXxxxxx
--------------------------------------
Xxxxx Xxxxxxx
--------------------------------------
Xxxxx Xxxxxxx
--------------------------------------
Xxxxx Xxxxxx
--------------------------------------
Xxxxxxx Xxxxxx
Attest: Laurentian Bank of Canada
ITF Xxxxxxx X. Xxxxxxx
By:
---------------------------- -----------------------------------
Title: Title:
Attest: RBC Dominion Securities
ITF Xxxxxx Xxxxx
By:
---------------------------- -----------------------------------
Title: Title:
Attest: RBC Dominion Securities
ITF Xxxxx Xxxxxx
By:
---------------------------- -----------------------------------
Title: Title:
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Attest: RBC Dominion Securities
ITF Xxx XxXxxxxx
By:
---------------------------- -----------------------------------
Title: Title:
--------------------------------------
Xxxxx Xxxx
--------------------------------------
Xxxx Xxxx
--------------------------------------
Xxxxxx Xxxxxxxx
XXXXX AND XXXX XXXX IN TRUST FOR
XXXXXXX XXXX
BY:
-----------------------------------
Xxxxx Xxxx, Trustee
BY:
-----------------------------------
Xxxx Xxxx, Trustee
XXXXX AND XXXX XXXX IN TRUST
FOR XXXXXXX XXXX
BY:
-----------------------------------
Xxxxx Xxxx, Trustee
BY:
-----------------------------------
Xxxx Xxxx, Trustee
---------------------------- --------------------------------------
Xxxx Xxxxx Xxxxx Xxxxxx
----------------------------
Xxxxxx Xxxxxxxx
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---------------------------- --------------------------------------
Xxxxx Xxxxxx Xxxxx Xxxxxx
---------------------------- --------------------------------------
Xxxxxx Xxxxxxx Xxxxxx Xxxxxxxx
---------------------------- --------------------------------------
Xxx Xxxx Xxxxx Xxxxxxxxx
---------------------------- --------------------------------------
Xxxxxx Xxxxxxxx Xxxx Xxxxx
---------------------------- --------------------------------------
Xxxx Xxxxxxxxxx Xxxxxx XxXxxxxxxx
---------------------------- --------------------------------------
Xxxxxx Xxxx Xxxxxxx Xxxxxxxxx
---------------------------- --------------------------------------
Xxxx Xxxxx Xxxxxxx Xxxxx
---------------------------- --------------------------------------
Xxx Xxxx Xxxxxx Xxxxxx
---------------------------- --------------------------------------
Xxx Xxxxxx Xxxxxx XxxXxxxxx
---------------------------- --------------------------------------
Xxxxx XxXxxxx Xxxx XxXxxxx
---------------------------- --------------------------------------
Xxx XxXxxxxx Xxxxx Xxxxx
---------------------------- --------------------------------------
Sinisa Removic Xxxx Xxxxx
---------------------------- --------------------------------------
Xxxxxx Xxxxx Xxxx Xxxxx
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---------------------------- --------------------------------------
Isabelle Saint-Laurent Xxxxxx Xxxxxxx
---------------------------- --------------------------------------
Xxxxxx Xxxxxx Xxx Xxxxxx
---------------------------- --------------------------------------
Sirpa Tarssanen Xxxxx Xxxxxx
---------------------------- --------------------------------------
Xxxxxxx Xxxxxx Xxxx van Galder
---------------------------- --------------------------------------
Xxxxx Xxxxxxx Xxxxxxx Xxxxx
---------------------------- --------------------------------------
Xxx Xxxx Xxxx Xxxxxxxx
---------------------------- --------------------------------------
Xxxxx Xxxxxx Xxxxxx Xxxxx
Attest: RBC Dominion Securities ITF
Xxxxx XxXxxxx
BY:
---------------------------- -----------------------------------
Title: Title:
Attest: Xxxxx Xxxxxx XXX
C/F Xxxxxx XxXxxxxxxx
BY:
---------------------------- -----------------------------------
Title: Title:
---------------------------- --------------------------------------
Xxx Xxxxx Xxxxx Xxxxxxx
---------------------------- --------------------------------------
Xxxxx Xxxxxx Xxx Xxxxxxx
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---------------------------- --------------------------------------
Xxxx Xxxxxxx Xxxx Xxxxxx
---------------------------- --------------------------------------
Xxxxx Xxxxxxxxx Xxx Xxxxxx
---------------------------- --------------------------------------
Xxxx Xxxxxx Xxxxx Xxxxxxx
---------------------------- --------------------------------------
Xxxxx Xxxxxxxxx Xxxx Xxxx
---------------------------- --------------------------------------
Xxxxx Xxxxxxxx Xxxx Xxxxxxxx
---------------------------- --------------------------------------
Xxxxx Xxxxx Hie Xxxx Xxxx
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LIST OF SCHEDULES AND EXHIBITS TO PAYING AGENT AGREEMENT
EXHIBIT I Distributable Schedule
EXHIBIT I(a) Capitalization Table of Promira Software Incorporated
EXHIBIT II Form of Instruction from Paying Agent to Transfer Agent
EXHIBIT III Addresses of Sellers
