EXHIBIT 10.29
ASSET PURCHASE AGREEMENT
between
NAVIANT TECHNOLOGY SOLUTIONS, INC. (the "Purchaser")
and
INTELLIQUEST INFORMATION GROUP, INC. (the "Seller")
As of July 22, 1999
TABLE OF CONTENTS
Page
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ARTICLE I TRANSFER OF ASSETS AND LIABILITIES................................... 1
1.1 Transfer of Assets................................................. 1
1.2 Excluded Assets.................................................... 4
1.3 Assumption of Liabilities.......................................... 4
1.4 Excluded Liabilities............................................... 4
ARTICLE II CONSIDERATION....................................................... 5
2.1 Purchase Price..................................................... 5
2.2 Purchase Price Adjustments......................................... 5
2.3 Allocation of Purchase Price....................................... 7
ARTICLE III THE CLOSING........................................................ 7
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF SELLER............................ 8
4.1 Corporate Organization............................................. 8
4.2 Authority.......................................................... 8
4.3 No Violations; No Consents or Approvals Required................... 8
4.4 Capital Structure.................................................. 9
4.5 Financial Statements............................................... 9
4.6 Undisclosed Liabilities............................................ 10
4.7 Title to Property and Assets....................................... 10
4.8 Absence of Change; Payments and Obligations to Date of Agreement... 11
4.9 Intellectual Property Rights....................................... 12
4.10 Contracts.......................................................... 14
4.11 Litigation......................................................... 15
4.12 Taxes.............................................................. 15
4.13 Compliance with Applicable Law..................................... 17
4.14 Labor Relations and Employment; No Collective Bargaining........... 17
4.15 Brokers and Finders................................................ 17
4.16 Powers of Attorney................................................. 18
4.17 Employee Benefit Plans............................................. 18
4.18 Subsidiaries....................................................... 18
4.19 Directors and Officers............................................. 18
4.20 Accounts Receivable................................................ 19
4.21 Environmental Matters.............................................. 19
4.22 Asset Maintenance; Insurance; Sufficiency.......................... 19
4.23 Disclosure......................................................... 19
4.24 Disclaimer of Other Representations and Warranties................. 19
ARTICLE V REPRESENTATIONS AND WARRANTIES OF PURCHASER.......................... 20
5.1 Corporate Organization............................................. 20
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5.2 Authority.......................................................... 20
5.3 No Violations: No Consents or Approvals Required................... 20
5.4 Brokers and Finders................................................ 21
5.5 Disclosure......................................................... 21
5.6 Financing.......................................................... 21
5.7 Investment......................................................... 21
5.8 No Litigation...................................................... 22
ARTICLE VI COVENANTS........................................................... 22
6.1 Conduct of the Purchased Business Pending the Closing.............. 22
6.2 No Solicitation.................................................... 23
6.3 Delivery of Balance Sheet and Additional Payment Amount............ 24
6.4 Access to Information; Continued Assistance........................ 24
6.5 Commercially Reasonable Efforts.................................... 26
6.6 Public Announcements............................................... 26
6.7 Competition; Non-solicitation...................................... 26
6.8 Collection of Accounts............................................. 27
6.9 Offers of Employment............................................... 28
6.10 Seller 401(k) Plan................................................. 28
6.11 Vacation........................................................... 28
6.12 QMS Contract....................................................... 28
6.13 Accelerated Vesting of Employee Options............................ 29
6.14 Assumed Liabilities; Excluded Liabilities.......................... 29
6.15 Transition Services................................................ 29
ARTICLE VII CONDITIONS TO CLOSING.............................................. 29
7.1 General Conditions................................................. 29
7.2 Conditions to Obligations of Seller................................ 30
7.3 Conditions to Obligations of Purchaser............................. 31
ARTICLE VIII SURVIVAL OF REPRESENTATIONS....................................... 33
ARTICLE IX TERMINATION; AMENDMENT; WAIVER...................................... 34
9.1 Termination........................................................ 34
9.2 Effect of Termination.............................................. 35
9.3 Termination Fee.................................................... 35
9.4 Assignment......................................................... 35
9.5 Waiver............................................................. 36
9.6 Time of the Essence................................................ 36
ARTICLE X MISCELLANEOUS........................................................ 36
10.1 Confidentiality.................................................... 36
10.2 [Reserved]......................................................... 36
10.3 Title, Possession and Risk of Loss................................. 36
10.4 Entire Agreement; Amendments....................................... 37
10.5 Power of Attorney.................................................. 37
10.6 Certain Tax Matters................................................ 37
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10.7 Further Assurances................................................. 39
10.8 Notices............................................................ 39
10.9 Expenses........................................................... 40
10.10 Dispute Resolution................................................. 40
10.11 Severability....................................................... 42
10.12 Governing Law...................................................... 42
10.13 Bulk Sales Laws.................................................... 42
10.14 Counterparts....................................................... 42
10.15 Headings; Interpretation; Disclosure Schedule...................... 42
10.16 Consent to Jurisdiction............................................ 43
10.17 Waiver of Jury Trial............................................... 43
10.18 Indemnification.................................................... 44
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DISCLOSURE SCHEDULES
Schedule 1.1 Permitted Encumbrances
Schedule 1.1(a)(i) Intellectual Property
Schedule 1.1(a)(ii) Leases, Licenses and other Agreements
Schedule 1.1(a)(iii) Contracts
Schedule 1.1(a)(iv) Tangible Personal Property
Schedule 1.1(a)(v) Common Stock
Schedule 1.1(a)(i)(ix) Governmental or Regulatory Operating Authorities
Schedule 2.2 Final Balance Sheet Preparation Procedures
Schedule 4.1 Organization, Good Standing and Qualification
Schedule 4.3 Violations, Consents, Approvals
Schedule 4.6 Undisclosed Liabilities
Schedule 4.7 Assets and Properties of XX0.xxx
Schedule 4.8 Changes in Operations, etc.
Schedule 4.10(a) Other Contracts
Schedule 4.12 Tax Returns
Schedule 4.17 Employee Benefit Plans
Schedule 4.19 List of Officers and Directors
Schedule 6.9 Employees to Receive Offers
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EXHIBITS
Exhibit A Assignment and Xxxx of Sale
Exhibit B Intellectual Property Assignment
Exhibit C Escrow Agreement
Exhibit D-1 Officer's Certificate of Purchaser
Exhibit D-2 Officer's Certificate of Seller
Exhibit E Form of Employment Agreement
Exhibit F [Reserved]
Exhibit G [Reserved]
Exhibit H Allocation of Purchase Price
Exhibit I Assumption Agreement
Exhibit J [Reserved]
Exhibit K License Agreement
Exhibit L Cooperation Agreement
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ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT, dated as of July 22, 1999 (the "Agreement"),
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between IntelliQuest Information Group, Inc., a Delaware corporation ("Seller"),
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and Naviant Technology Solutions, Inc., a Delaware corporation ("Purchaser").
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INTRODUCTION
WHEREAS, Seller, through its database division (which has operated under
the names IntelliQuest Communications, Inc., XX0.xxx, Marketing Information
Solutions and MkIS), is in the business of (a) providing electronic consumer
registration services for computer software and hardware vendors and (b)
licensing data from various proprietary databases compiled from its electronic
consumer registration services and commercially available demographic data
licensed from third parties for use and resale (such business hereinafter
referred to as the "Purchased Business").
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WHEREAS, Seller owns all of the issued and outstanding capital stock of
XX0.xxx, Inc., a Delaware corporation ("XX0.xxx"); and
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WHEREAS, the assets which comprise the Purchased Business are held by
Seller and XX0.xxx; and
WHEREAS, the parties hereto desire that (a) Seller transfer, convey and
assign to Purchaser all of the capital stock of XX0.xxx and substantially all of
the other assets, properties and rights of Seller primarily related to the
Purchased Business as a going concern and (b) Purchaser purchase and acquire the
same, subject to the payment of the Purchase Price and the assumption by
Purchaser of the liabilities and obligations of Seller relating primarily to the
Purchased Business, in each case, upon the terms and subject to the conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing, and for and in
consideration of the mutual promises contained in this Agreement and for such
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
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TRANSFER OF ASSETS AND LIABILITIES
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1.1 Transfer of Assets.
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(a) Upon the terms and subject to the conditions of this Agreement,
at the Closing (as defined in Article III), Seller shall sell, transfer, convey,
assign and deliver to Purchaser, and Purchaser shall acquire from Seller, for
the consideration hereinafter described, all of Seller's right, title and
interest in and to all assets, properties and rights of every kind, nature and
description, real, personal or mixed, tangible or intangible, known or unknown,
wherever located which are primarily related to or primarily used in the
Purchased Business, other than the "Excluded Assets" (as defined in Section 1.2
below), as the same shall exist on the Closing Date (as defined in Article III)
(the "Transferred Assets"), free and clear of any mortgage, security, interest,
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pledge, lien, conditional sale agreement, charge or other encumbrance (each, an
"Encumbrance") other than any Encumbrance identified in Schedule 1.1(a) of the
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disclosure schedules attached hereto (the "Disclosure Schedules") (the
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"Permitted Encumbrances"), including without limitation, all of Seller's right,
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title and interest in the following:
(i) all know-how, show-how, trade secrets, works of authorship,
ideas, procedures, processes, systems, methods, concepts, principles,
discoveries, inventions, art, machines, manufactures, compositions of matter,
materials, improvements, formulas, patterns, devices, compilations, information,
lists (including but not limited to customer and supplier lists), articles,
codes, matters, programs, techniques, apparatus, algorithms, designs, circuitry,
hardware, firmware, software (computer software programs and applications, in
both source code and object code form) except the Reply Quest software developed
by Seller, net lists, schematics, diagrams, technology, inventory, products,
networks, data, plans (including but not limited to financial, business,
marketing, technical and product plans), libraries, media, pictorial works,
graphic works, audiovisual works, computer interfaces (including but not limited
to programming interfaces), computer languages, computer protocols, development
tools, and tangible or intangible proprietary rights or information or material,
irrespective of whether patentable, that are used or are intended to be used
primarily in the Purchased Business as currently conducted, including but not
limited to those set forth in Schedule 1.1(a)(i) of the Disclosure Schedules
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(collectively, the "Intellectual Property"), and all patents, trademarks, trade
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names, service marks, copyrights (including but not limited to moral rights),
and any applications therefor, and trade secrets and other proprietary rights
("Intellectual Property Rights") related to the Intellectual Property. Without
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limiting the generality of the foregoing, Intellectual Property shall include
all of the foregoing with respect to (a) all versions and releases of the High
Tech Household Database (HTHHD) as used in the Purchased Business and all
Intellectual Property primarily related to or used primarily in connection with
the HTHHD in the Purchased Business except the Reply Quest software developed by
Seller; and (b) the names "XX0.xxx", "Marketing Information Solutions", "MkIS",
and variations thereof and all other trade names relating primarily to or used
primarily in the Purchased Business;
(ii) all leases (including leases for real property), licenses,
purchase orders, sales orders, commitments and other agreements (including non-
competition agreements and invention assignment agreements and nondisclosure
agreements) of Seller relating primarily to the Purchased Business, including,
without limitation, those set forth in Schedule 1.1(a)(ii) of the Disclosure
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Schedules;
(iii) all contracts set forth on Schedule 1.1(a)(iii) of the
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Disclosure Schedules, including without limitation and subject to any required
consents, all contracts between Seller and First Data Solutions, Inc.
(collectively, the "Contracts").
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(iv) all personal property, machinery, equipment, vehicles,
furniture, fixtures, office equipment and supplies, brochures, catalogs,
artwork, photographs, advertising and marketing material and other items of
tangible personal property related to or used primarily
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in the operation of the Purchased Business, and all warranties relating thereto,
including, without limitation, the tangible personal property identified in
Schedule 1.1(a)(iv) of the Disclosure Schedules;
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(v) all shares of the XX0.xxx Common Stock (as defined in Section
4.4 hereof) and other securities of XX0.xxx owned by Seller and identified in
Schedule 1.1 (a)(v) of the Disclosure Schedules;
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(vi) all accounts and notes receivable arising from the operation of
the Purchased Business and all income (including payments in respect of
receivables received by Seller after the Closing), royalties, damages and
payments due or received at Closing or thereafter under any Contract or
otherwise primarily with respect to the Purchased Business (including, without
limitation, rights to damages and payments for past, present or future
infringements or misappropriations of any Intellectual Property) in all
countries;
(vii) all cash, bank deposits and cash equivalents relating primarily
to the Purchased Business, including for this purpose, all cash and cash
equivalents credited to Seller's bank accounts in the ordinary course of
business consistent with past business practices relating primarily to the
Purchased Business prior to the Closing Date and all cash in transit from banks
or credit card companies for purchases of the Transferred Assets shipped prior
to the Closing Date;
(viii) all causes of action, demands, judgments, claims (including
insurance claims), indemnity rights, rights to set-off against third parties or
other similar rights of Seller relating primarily to Purchased Business ;
(ix) all franchises, consents, licenses, marketing rights, permits,
authorizations, approvals and other operating authorities, to the extent
transferable, issued by governmental or regulatory bodies to Seller relating
primarily to or used primarily in the Purchased Business, including, without
limitation, those set forth in Schedule 1.1(a)(i)(ix) of the Disclosure
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Schedules;
(x) all records, files and invoices, including but not limited to,
all production data, equipment maintenance data, employee files, inventory
records, sales and sales promotional data, advertising and marketing materials,
customer lists, cost and pricing information, supplier lists, Intellectual
Property prosecution files, business plans, reference catalogs and any other
records and data, or exact duplicates thereof, used primarily in connection with
the Purchased Business and the Transferred Assets and located at any of the
offices of, or other location used by, Seller or XX0.xxx;
(xi) all rights under express or implied warranties from suppliers
with respect to the Purchased Business or the Transferred Assets except to the
extent related primarily to Excluded Assets (as defined in Section 1.2 hereof);
and
(xii) all goodwill associated with the Purchased Business as a going
concern together with the right to represent to third parties that Purchaser is
the successor to the Purchased Business.
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1.2 Excluded Assets.
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Notwithstanding the provisions of Section 1.1 above, the Transferred
Assets do not include, and Seller does not hereby convey or transfer to
Purchaser any asset not described in Section 1.1, including, without limitation,
the following assets (collectively, the "Excluded Assets"):
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(a) all of Seller's right title and interest in and to all assets,
properties and rights of every kind, nature and description, real personal or
mixed, tangible or intangible, known or unknown, wherever located which are not
primarily related to or used primarily in the Purchased Business;
(b) the consideration delivered by Purchaser to the Seller pursuant
to this Agreement and all rights of Seller under this Agreement;
(c) any books, records or other information related solely and
exclusively to the Excluded Assets or the Excluded Liabilities (as defined in
Section 1.4 hereof).
(d) any accounts receivable, notes or other receivables owed to
Seller or XX0.xxx by any officer, director, employee or affiliate of Seller or
XX0.xxx;
(e) any personal property, machinery, equipment, vehicles, furniture,
fixtures, office equipment and supplies, brochures, catalogs, artwork,
photographs, advertising and marketing material and other items of tangible
property related to or used primarily in the operation of the Purchased
Business, and all warranties relating thereto, which is located at Seller's
facility in Austin, Texas as of the date hereof; and
(f) all tax and accounting records and books of account of Seller.
1.3 Assumption of Liabilities.
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(a) Upon the terms and subject to the conditions of this Agreement,
at the Closing, Purchaser shall, pursuant to an Assumption Agreement
substantially in the form attached hereto as Exhibit I (the "Assumption
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Agreement"), assume the liabilities and obligations (and only the liabilities
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and obligations) of Seller primarily related to the Purchased Business (the
"Assumed Liabilities"); provided, however, that Purchaser shall not assume or
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otherwise be responsible for (a) any costs or expenses incurred by Seller or
X0X.xxx in the preparation of this Agreement and the consummation of the sale of
the Purchased Business to Purchaser provided for in this Agreement, including,
without limitation, the costs and expenses required to be borne by Seller
pursuant to Section 4.15 and Section 10.9 hereof or (b) any liabilities or
obligations of Seller under any severance plans or arrangements with Xx Xxxxxxx
and Xxxxxxx Xxxxxxx.
1.4 Excluded Liabilities.
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Except as specified in Section 1.3, Purchaser shall not, by the
execution, delivery and performance of this Agreement or the Assumption
Agreement, or otherwise, assume or
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otherwise be responsible for any liability or obligation of any nature of
Seller, or claims of such liability or obligation, matured or unmatured,
liquidated or unliquidated, fixed or contingent, known or unknown, whether
arising out of acts or occurrences prior to, at or after the date hereof (the
"Excluded Liabilities").
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ARTICLE II
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CONSIDERATION
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2.1 Purchase Price.
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Upon the terms and subject to the conditions of this Agreement, in
full payment for the aforesaid sale, conveyance, assignment, transfer and
delivery of the Purchased Business and the Transferred Assets, Purchaser shall
assume the Assumed Liabilities pursuant to the Assumption Agreement and shall
deliver or cause to be delivered to Seller the aggregate amount of $46,500,000
to be paid as follows (collectively, the "Purchase Price"):
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(i) immediately available funds (cash equivalent) in the amount
of $44,500,000 shall be paid to the Seller at the Closing; and
(ii) immediately available funds (cash equivalent) in the amount
of $2,000,000 (the "Balance Sheet Adjustment Escrow Amount") shall be delivered
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to and held in escrow by an escrow agent appointed by Purchaser (the "Escrow
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Agent") pursuant to an Escrow Agreement in substantially the form attached
hereto as Exhibit C (the "Escrow Agreement") and released to Seller or
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Purchaser, as applicable, pursuant to Section 2.2 hereof upon the determination
of the "Net Asset Value" and "Adjustment Amount," if any, pursuant to Section
2.2 hereof.
2.2 Purchase Price Adjustments.
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(a) As used herein, the term "Net Asset Value" shall mean the book
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value of the Transferred Assets included in the Final Balance Sheet less the
book value of the Assumed Liabilities included in the Final Balance Sheet,
determined in accordance with this Section 2.2.
(b) Seller shall deliver to Purchaser the Final Balance Sheet in
accordance with Section 6.3 of this Agreement setting forth in reasonable detail
the book value of each Transferred Asset and Assumed Liability, including
without limitation and separately identifying the assets, liabilities and
stockholder's equity of XX0.xxx, and showing the Net Asset Value of the
Purchased Business as of the Closing Date. Such Final Balance Sheet shall be
prepared by Seller's personnel in a manner consistent with the preparation of
the Financial Statements (as defined in Section 4.5) and utilizing the rules and
procedures outlined in Schedule 2.2 of the Disclosure Schedules and such other
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procedures as shall be mutually agreeable to Purchaser and Seller. Without
limiting the generality of the foregoing, any account receivable, note or other
receivable owed to XX0.xxx by an officer, director, employee or affiliate of
Seller or XX0.xxx shall not be assigned any value on the Final Balance Sheet.
Prior to or upon completion of such Final Balance Sheet, Purchaser and the
Philadelphia, Pennsylvania branch of PricewaterhouseCoopers
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LLP ("PwC PA") shall be provided with the working papers used by Seller to
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complete such Final Balance Sheet. The Austin, Texas branch of
PricewaterhouseCoopers LLP ("PwC Austin") will perform agreed upon procedures on
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the Final Balance Sheet prepared by the Seller. Such procedures will be mutually
agreed upon by the Purchaser and the Seller. Upon completion of such procedures,
Purchaser and PwC PA will be given access to the workpapers prepared by PwC
Austin in performance of the agreed upon procedures. Purchaser shall have a
period of ten days after access to workpapers prepared by the Seller in
preparation of such Final Balance Sheet and workpapers prepared by PwC Austin in
performance of the agreed upon procedures to review and accept or dispute such
Final Balance Sheet in accordance with this Section 2.2.
(c) In the event the Final Balance Sheet reflects a Net Asset Value
of the Purchased Business of less than $11,500,000, then Purchaser shall be
entitled to the difference obtained by subtracting the Net Asset Value set forth
on the Final Balance Sheet from $11,500,000 (the "Adjustment Amount"), up to a
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maximum of the Balance Sheet Adjustment Escrow Amount. In such event, Purchaser
and Seller shall cause the Escrow Agent to pay to the Seller pursuant to the
Escrow Agreement out of the Balance Sheet Adjustment Escrow Amount an amount
equal to the Balance Sheet Adjustment Escrow Amount less the Adjustment Amount.
Purchaser and Seller shall then cause the Escrow Agent to pay the balance of the
Balance Sheet Adjustment Escrow Amount to Purchaser pursuant to the Escrow
Agreement. The maximum amount that Purchaser is entitled to be paid pursuant to
this Section 2.2(c) shall be limited to $2,000,000. If the Net Asset Value set
forth on the Final Balance Sheet is greater than or equal to $11,500,000, then
Purchaser and Seller shall cause the Escrow Agent to pay to the Seller pursuant
to the Escrow Agreement out of the Balance Sheet Adjustment Escrow Amount an
amount equal to the Balance Sheet Adjustment Escrow Amount.
(d) In the event the Final Balance Sheet reflects a Net Asset Value
of greater than $13,000,000, Purchaser shall pay to Seller the amount of such
excess in cash (the "Additional Payment Amount").
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(e) If Purchaser shall disagree with the Adjustment Amount (if any),
the Additional Payment Amount (if any) or the Net Asset Value set forth on the
Final Balance Sheet, Purchaser shall notify Seller of such disagreement within
ten days following Purchaser's receipt of the Final Balance Sheet as provided in
paragraph (b) above. To the extent that the Net Asset Value set forth on the
Final Balance Sheet or any portion of the Adjustment Amount (if any) or the
Additional Payment Amount (if any) is not in dispute, within ten days following
Purchaser's receipt of the Final Balance Sheet, (i) Purchaser and Seller shall
cause the Escrow Agent to pay to Purchaser pursuant to the Escrow Agreement out
of the Balance Sheet Adjustment Escrow Amount that portion of the Adjustment
Amount (if any) which is not in dispute in the manner set forth in Section
2.2(c), or (ii) Purchaser shall pay to Seller any amount not in dispute in the
manner set forth in Section 2.2(d), as the case may be.
(f) Purchaser and Seller shall use their best efforts for a period of
thirty (30) calendar days after Purchaser's delivery of any notice of
disagreement (or such longer period as Purchaser and Seller shall mutually agree
upon) to resolve any disagreements raised by Purchaser with respect to the Final
Balance Sheet and/or the calculation of the Adjustment Amount. If, at the end
of such period, Purchaser and Seller are unable to resolve such
6
disagreements, Purchaser and Seller shall jointly select, or if Purchaser and
Seller shall be unable to agree, PwC Austin and PwC PA, independent auditors of
Seller and Purchaser shall jointly select, a third independent auditor of
recognized national standing to resolve any remaining disagreements. The
determination by such third independent auditor shall be final, binding and
conclusive on the parties. Purchaser and Seller shall use their best efforts to
cause such third independent auditor to make its determination within thirty
(30) calendar days of accepting its selection. Within ten (10) calendar days
after the date of determination of such third independent auditor, Purchaser and
Seller shall cause the Escrow Agent to pay pursuant to the Escrow Agreement out
of the Balance Sheet Adjustment Escrow Amount to Purchaser the Adjustment Amount
(if any), and to Seller the remainder (if any) in the manner set forth in
Section 2.2(c) and 2.2(d). The fees and expenses of such third independent
auditor shall be borne by Purchaser and Seller equally.
(g) All payments made by Purchaser pursuant to Section 2.2(d) or made
out of the Balance Sheet Adjustment Escrow Account pursuant to Section 2.2(c)
shall be made by wire transfer of immediately available funds to an account
designated by the payee.
2.3 Allocation of Purchase Price.
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On or before the Closing Date, the Seller and the Purchaser will
prepare a schedule to be attached hereto as Exhibit H and titled "Allocation of
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the Purchase Price" setting forth the following items (which will have been
agreed to by the parties): (i) the consideration paid for the shares of XX0.xxx
Common Stock pursuant to this Agreement, (ii) the liabilities of XX0.xxx as of
the Closing Date and (iii) the actual values of the major categories (grouped by
physical location) of the assets of XX0.xxx and the Transferred Assets other
than the XX0.xxx Common Stock, each as of the Closing Date. The Seller and the
Purchaser agree that (i) the consideration paid for the shares of XX0.xxx Common
Stock and the liabilities of XX0.xxx (plus other relevant items) will be
allocated to the assets of XX0.xxx for all purposes (including Tax) in a manner
consistent with the values set forth on Exhibit H, (ii) all Tax returns
(including Internal Revenue Service Form 8594 or any other similar statement)
will be filed in a manner consistent with such values, and (iii) no party will
assert in connection with any audit or other proceeding with respect to Taxes,
any values or other items inconsistent with the allocation set forth in Exhibit
H.
ARTICLE III
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THE CLOSING
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The closing of the transactions contemplated by this Agreement (the
"Closing") will take place at 9:00 a.m. Austin, Texas time at the offices of
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Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP, counsel to Purchaser, as soon as is reasonably
practicable following the satisfaction of all conditions set forth in Article
VII hereof (but in any case no earlier than August 2, 1999) or at such other
time, at such other place or on such other date as the parties hereto may
mutually agree. At the Closing, the parties hereto will exchange certificates,
opinions and other documents as required hereby. Notwithstanding the foregoing,
the Closing shall be effective at 12:01 a.m. Austin,
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Texas time on the day of Closing. The date on which the Closing occurs is herein
referred to as the "Closing Date".
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ARTICLE IV
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REPRESENTATIONS AND WARRANTIES OF SELLER
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Seller hereby represents and warrants to Purchaser as follows:
4.1 Corporate Organization.
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Except as set forth on Schedule 4.1 of the Disclosure Schedules, each
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of Seller and XX0.xxx is a corporation duly organized, validly existing and in
good standing under the laws of its jurisdiction of incorporation and is duly
qualified or licensed as a foreign corporation authorized to do business in and
is in good standing under the laws of each jurisdiction in which the character
of the properties and assets now owned or held by it or the nature of the
business now conducted by it requires it to be so licensed or qualified and
where the failure to be so licensed or qualified and in good standing would have
a material adverse effect on the business, financial condition, results of
operations or assets or properties (including, without limitation, the
Transferred Assets) of the Purchased Business and XX0.xxx, taken as a whole
("Material Adverse Effect"). Each of Seller and XX0.xxx has full corporate
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power and authority to carry on the Purchased Business as now being conducted.
4.2 Authority.
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Seller has full corporate power and authority to execute, deliver and
perform this Agreement and, to the extent it is a party thereto, the documents
to be delivered at the Closing pursuant to Section 7.3(e) hereof (collectively,
the "Seller Agreements") and to consummate the transactions contemplated hereby
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and thereby. The execution and delivery of this Agreement and the Seller
Agreements by Seller and the consummation by Seller of the transactions
contemplated hereby and thereby have been duly authorized by all necessary
corporate action, and no other corporate action or proceeding on the part of
Seller or XX0.xxx is necessary to authorize the execution and delivery by Seller
of this Agreement or the Seller Agreements or the consummation by Seller of the
transactions contemplated hereby or thereby or the performance of Seller's
obligations hereunder and thereunder. This Agreement has been, and the Seller
Agreements on the Closing Date will be, duly executed and delivered by Seller
and this Agreement is, and on the Closing Date each of the Seller Agreements
will be, legal, valid and binding obligations of Seller, enforceable against it
in accordance with their terms, subject to applicable laws affecting creditors'
rights generally and, as to enforcement, to general principles of equity,
regardless of whether applied in a proceeding at law or in equity.
4.3 No Violations; No Consents or Approvals Required.
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Except as set forth in Schedule 4.3 of the Disclosure Schedules,
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neither the execution and delivery of this Agreement or the Seller Agreements
nor the consummation of the transactions contemplated hereby or thereby will (i)
conflict with or violate any provision of the
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certificate of incorporation or by-laws, each as amended, of Seller or XX0.xxx,
(ii) conflict with or violate any law, rule, regulation, ordinance, order, writ,
injunction, judgment or decree applicable to Seller, XX0.xxx or the Purchased
Business or by which Seller, XX0.xxx or any of the Transferred Assets are bound
or affected or (iii) conflict with or result in any breach of or constitute a
default (or an event which with notice or lapse of time or both would become a
default) under, or give to others any rights of termination or cancellation of,
or accelerate the performance required by or maturity of, or result in the
creation of any security interest, lien, charge or encumbrance on any of the
Transferred Assets or any assets, properties or other rights of Seller or
XX0.xxx pursuant to any of the terms, conditions or provisions of, any note,
bond, mortgage, indenture, permit, license, franchise, lease, contract, or other
instrument or obligation to which Seller or XX0.xxx is a party, including,
without limitation, the Contracts and the XX0.xxx Contracts (as defined in
Section 4.10 hereof), except, in the case of (ii) and (iii) above, for such
conflicts, violations, breaches, defaults, accelerations, terminations,
cancellations, encumbrances, security interests, liens, or charges which do not
and could not reasonably be expected to have a material adverse effect on the
ability of Seller to consummate the transactions contemplated by this Agreement
and the Seller Agreements or a Material Adverse Effect. Except for applicable
requirements, if any, of the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, as amended (the "HSR Act"), or as set forth in Schedule 4.3 of the
--- ------------
Disclosure Schedules, no notice, declaration, report or other filing or
registration with, and no waiver, consent, approval or authorization of, any
governmental or regulatory authority or instrumentality or any other person is
required to be submitted, made or obtained by Seller or XX0.xxx in connection
with the execution, delivery or performance of this Agreement or the Seller
Agreements and the consummation of the transactions contemplated hereby or
thereby, except where the failure to give notice, declare, report, file, or
obtain any waiver, consent, approval or authorization does not and could not
reasonably be expected to have a material adverse effect on the ability of the
parties hereto to consummate the transactions contemplated by this Agreement or
a Material Adverse Effect.
4.4 Capital Structure.
-----------------
The total authorized capital stock of XX0.xxx consists of 1,000 shares
of common stock, par value $0.0001 per share (the "XX0.xxx Common Stock"), of
--------------------
which 1,000 shares are issued and outstanding. All outstanding shares of
XX0.xxx Common Stock are duly authorized, validly issued, fully paid and
nonassessable and not subject to preemptive rights created by statute, XX0.xxx's
Certificate of Incorporation or Bylaws or any agreement to which XX0.xxx or
Seller is a party or by which XX0.xxx or Seller is bound. All of the
outstanding shares of XX0.xxx Common Stock are owned beneficially and held of
record by Seller, and Seller has good and marketable title thereto, free and
clear of all Encumbrances other than Permitted Encumbrances. There are no other
outstanding obligations, warrants, preemptive rights, or other agreements or
commitments to which XX0.xxx or Seller is a party, or by which XX0.xxx or Seller
is otherwise bound, providing for the issuance of any additional shares of
XX0.xxx Common Stock, nor are there any other outstanding equity or nonequity
securities (e.g., debt securities) of XX0.xxx.
4.5 Financial Statements.
--------------------
Seller has previously delivered to Purchaser unaudited financial
statements (including a balance sheet and income statement) for the Purchased
Business and XX0.xxx for the
9
calendar quarter ended March 31, 1999 and unaudited financial statements
(including a balance sheet and income statement) the Purchased Business and
XX0.xxx for the calendar year ended December 31, 1998 (the "Financial
---------
Statements"). The Financial Statements fairly present, and the Final Balance
----------
Sheet will fairly present, in each case, in all material respects the financial
position of the Purchased Business and XX0.xxx as of the respective dates set
forth therein and, with respect to the Financial Statements, the results of
operations of the Purchased Business and XX0.xxx for the respective periods or
as of the respective dates set forth therein, but in each case do not or will
not, as applicable, include all information and notes required under generally
accepted accounting principles for complete financial statements but do or will,
as applicable, contain all accruals and adjustments of a normal recurring nature
necessary for a fair and consistent presentation of the financial position of
the Purchased Business for such periods.
4.6 Undisclosed Liabilities.
-----------------------
As of March 31, 1999, neither Seller (primarily with respect to the
Purchased Business) nor XX0.xxx had incurred any material liabilities or
obligations of any nature whatsoever, whether absolute, accrued, fixed,
contingent, liquidated, unliquidated or otherwise and whether due or to become
due which are not reflected on the March 31, 1999 balance sheets included in the
Financial Statements or described on Schedule 4.6 of the Disclosure Schedules.
------------
Since March 31, 1999, neither Seller (primarily with respect to the Purchased
Business) nor XX0.xxx has incurred any material liabilities or obligations of
any nature, whether absolute, accrued, contingent or otherwise and whether due
or to become due that are not reflected on the books and records of Seller and
XX0.xxx other than those incurred in the ordinary course of business consistent
with their past practices or described on Schedule 4.6 of the Disclosure
------------
Schedules.
4.7 Title to Property and Assets.
----------------------------
Except for Third Party Intellectual Property Rights (as defined in
Section 4.9(b)), Seller owns (and has good and marketable title to) all of the
Transferred Assets and XX0.xxx owns (and has good and marketable title to) all
of its assets and properties, in each case, free and clear of all Encumbrances
other than Permitted Encumbrances. With respect to Transferred Assets leased by
Seller, Seller is in compliance with such leases and holds valid leasehold
interests therein free and clear of all Encumbrances other than Permitted
Encumbrances. With respect to assets and properties leased by XX0.xxx, XX0.xxx
is in material compliance with the terms of such leases and holds valid
leasehold interests therein free and clear of all Encumbrances other than
Permitted Encumbrances. Seller does not own any real property used in or
relating to the conduct of the Purchased Business, and XX0.xxx does not own any
real property. Schedule 4.7 of the Disclosure Schedules contains a list of all
------------
assets, properties and other rights other than Intellectual Property,
Intellectual Property Rights and the XX0.xxx Contracts owned or held by XX0.xxx,
including, without limitation, all personal property, machinery, equipment,
vehicles, furniture, fixtures, office equipment, bank accounts or similar
deposit arrangements, investment securities, franchises, consents, licenses,
marketing rights, permits, authorizations, approvals and other operating
authorities, and such list is complete and accurate in all material respects.
10
4.8 Absence of Change; Payments and Obligations to Date of Agreement.
----------------------------------------------------------------
Except for transactions arising in the ordinary course of business or
as set forth on Schedule 4.8 of the Disclosure Schedules, since March 31, 1999,
------------
there has not been any change in the operations, properties, assets or
condition, financial or otherwise, of the Purchased Business or XX0.xxx other
than changes affecting the data base research industry generally and other than
changes, none of which, individually or in the aggregate, have had or reasonably
could be expected to have a Material Adverse Effect. Since March 31, 1999,
Seller has conducted the Purchased Business and XX0.xxx has conducted its
business, including, without limitation, the Purchased Business, only in the
ordinary course, consistent with past practices. Without limiting the
generality of the foregoing, since March 31, 1999, Seller (solely with respect
to the Purchased Business) and XX0.xxx have not directly or indirectly:
(i) borrowed money or incurred any material obligation,
indebtedness or liability (absolute or contingent), except (a) under existing
lines of credit or other borrowing facilities in effect as of March 31, 1999 and
only in amounts and under circumstances consistent with past practices and in
the ordinary and usual course of business and (b) obligations and liabilities
incurred in connection with the transactions contemplated by this Agreement;
(ii) discharged or satisfied any lien or paid any material
obligation or liability (absolute or contingent) other than current liabilities
shown on the March 31, 1999 Balance Sheet, current liabilities incurred since
such date in the ordinary course of business, and obligations incurred under
Contracts entered into in the ordinary course of business;
(iii) mortgaged, pledged, hypothecated, assigned, or subjected
to any lien, any material portion of the Transferred Assets, except under
existing lines of credit or other borrowing facilities in effect as of March 31,
1999 and only in amounts and under circumstances consistent with past practices
and in the ordinary course of business;
(iv) suffered any extraordinary loss or waived any right of
material value;
(v) entered into any material transaction other than in the
ordinary course of business or made any waiver or abandonment of any property,
asset or rights of material value;
(vi) made any material change in its method of accounting;
(vii) paid or committed itself to pay to or for the benefit of
any of its current or former directors, officers, employees, or shareholders any
material compensation or any kind other than wages, bonuses, salaries,
insurance, pension or other benefit plan, payment or arrangement at rates then
in effect and permitted by law;
(viii) made any binding arrangement, understanding, contract or
arrangement between itself and any current or former director, officer or
employee or any lineal descendant of any of such persons pursuant to which any
benefit of such arrangement, understanding, contract or agreement has or will
hereafter accrue, directly or indirectly, to any such current or former
director, officer or employee or any lineal descendant of any of them or to
11
any entity in which such director, officer or employee or lineal descendant has
any equity ownership, directly or indirectly;
(ix) made any purchase, sale or lease of any capital asset with
an original cost in excess of $25,000 for any single item other than in the
ordinary course of business consistent with past practice; or
(x) made any sale or lease of any capital asset with an
original cost in excess of $25,000 for any single item at less than full and
adequate consideration therefor.
4.9 Intellectual Property Rights.
----------------------------
(a) Seller or XX0.xxx, as the case may be, owns or otherwise
possesses legally enforceable rights or licenses to or for the Intellectual
Property and Intellectual Property Rights.
(b) Schedule 1.1(a)(i) of the Disclosure Schedules lists: (i)
------------------
and patent applications, and all registered and unregistered trademarks, trade
names and service marks, and all registered copyrights and applications for
copyright registration, owned or claimed by Seller or XX0.xxx and used primarily
by Seller or XX0.xxx in connection with the Purchased Business, including the
jurisdictions in which each such Intellectual Property right has been issued or
registered or in which any application for such issuance and registration has
been filed, and including the date of filing or registration or issuance of such
applications and registrations, and including the registration number or serial
number of such applications and registrations; (ii) all licenses, sublicenses
and other agreements to which Seller or XX0.xxx is a party and pursuant to which
any person is authorized to use any of Seller's or XX0.xxx's Intellectual
Property; and (iii) all licenses, sublicenses and other agreements to which
Seller or XX0.xxx is a party and pursuant to which Seller or XX0.xxx is
authorized to use any Intellectual Property owned by any third party ("Third
-----
Party Intellectual Property Rights") that is necessary to or used primarily in
----------------------------------
the Purchased Business as currently conducted by Seller and XX0.xxx (i.e.,
including but not limited to Third Party Intellectual Property Rights that are
incorporated in, are, or form (or in each of the foregoing instances which are
contemplated to be incorporated in, be, or form) a part of any Seller or XX0.xxx
product, product under development, service or service under development
primarily with respect to the Purchased Business)), other than Seller's
internally-developed Reply Quest software; and (iv) all other Intellectual
Property and Intellectual Property Rights used primarily by Seller or XX0.xxx in
connection with the Purchased Business or by XX0.xxx.
(c) To Seller's knowledge, there is no (and there is no fact that
reasonably might be expected to form the basis for a claim of) unauthorized use,
disclosure, infringement, violation or misappropriation of Seller's or XX0.xxx's
Intellectual Property, any trade secret material received by Seller or XX0.xxx,
or any Third Party Intellectual Property Rights (to the extent licensed by or
through Seller or XX0.xxx) by any third party, including any employee or former
employee of Seller or XX0.xxx. Neither Seller nor XX0.xxx has entered into any
agreement to indemnify (or hold harmless) any other person against any charge of
misuse, unauthorized disclosure, infringement, violation or misappropriation of
Seller's or XX0.xxx's Intellectual Property, other than indemnification (or hold
harmless) provisions contained in the Contracts, the XX0.xxx Contracts or
purchase orders arising in the ordinary course of business.
12
(d) Neither Seller nor XX0.xxx is, nor will it be as a result of the
execution and delivery of this Agreement or the performance of its obligations
under this Agreement, in breach of any license, sublicense or other agreement
relating to Seller's or XX0.xxx's Intellectual Property or Third Party
Intellectual Property Rights, and there is no fact that reasonably might be
expected to form the basis for a claim of such breach. To Seller's knowledge,
no third party is in breach of any license, sublicense or other agreement (as to
which Seller or XX0.xxx is a party) relating to Seller's of XX0.xxx's
Intellectual Property or Third Party Intellectual Property Rights, and to
Seller's knowledge there is no fact that reasonably might be expected to form
the basis for a claim of such breach.
(e) All patents and registered trademarks, trade names, service
marks, maskworks and copyrights owned by Seller and primarily relating to or
primarily used in the Purchased Business or XX0.xxx are valid, subsisting, in
full force and effect, and not abandoned. Neither Seller nor XX0.xxx (i) is a
party to any suit, action or proceeding, nor to Seller's knowledge is any such
suit, action or proceeding threatened, nor is there any fact that reasonably
might be expected to form the basis for any such suit, action or proceeding or
threat thereof, which involves a claim of misuse, unauthorized disclosure,
infringement, violation or misappropriation of any Third Party Intellectual
Property Right; (ii) has any knowledge nor any basis to conclude that the
development, manufacturing, use, marketing, distribution, licensing or sale of
its products and services misuses, discloses without authorization, infringes,
violates or misappropriates any Third Party Intellectual Property Right; and
(iii) has brought and or intends to bring, nor to Seller's knowledge is there
any fact that reasonably might be expected to form the basis for any such suit,
action or proceeding or threat thereof, any suit, action or proceeding for
misuse, unauthorized disclosure, infringement, violation or misappropriation of
Seller's or XX0.xxx's Intellectual Property or breach of any license, sublicense
or agreement involving Seller's Intellectual Property against any third party.
(f) With regard to Seller's and XX0.xxx's employees who contributed
to conception, reduction to practice, creation or development of Seller's and
XX0.xxx's Intellectual Property in the course of providing services to Seller or
XX0.xxx, Seller or XX0.xxx, as the case may be, has secured valid written
assignments from all such employees of all rights to such Seller's or XX0.xxx's
Intellectual Property to the extent that Seller or XX0.xxx would not have
already owned such rights by operation of law. A true and correct copy of
seller's standard documentation effecting all such assignments have been
provided to Purchaser. Each current employee of Seller employed at the Purchased
Business and each current employee of XX0.xxx has executed a proprietary
information and inventions agreement in the form previously delivered to
Purchaser, and all such assignments are substantially in such form. Each current
consultant of Seller employed at the Purchased Business and each current
consultant of XX0.xxx has executed a proprietary information agreement in the
form previously delivered to Purchaser.
(g) "Confidential Information" shall mean Seller's or XX0.xxx's
Intellectual Property not otherwise protected by patents, patent applications or
copyrights. With respect to Confidential Information owned by Seller or
XX0.xxx, Seller or XX0.xxx, as the case may be, has taken commercially
reasonable steps to protect and preserve the confidentiality of such
Confidential Information, and all accessibility, receipt, use, disclosure,
delivery, dissemination, reproduction or appropriation of such Confidential
Information by or to a third party has been pursuant to the terms of a written
agreement between Seller or XX0.xxx and such third party.
13
With respect to Confidential Information not owned by Seller or XX0.xxx, all
accessibility, receipt, use, disclosure, delivery, dissemination, reproduction
or appropriation of such Confidential Information by Seller or XX0.xxx has been
pursuant to the terms of a written agreement between Seller or XX0.xxx and the
owner of such Confidential Information, or is otherwise lawful.
(h) Except with respect to Third Party Intellectual Property Rights,
no third party has claimed invalidity of, or superior rights to, any one or more
parts of Seller's or XX0.xxx's Intellectual Property and, to Seller's knowledge,
there is no fact that reasonably might be expected to form the basis for any
such claim. Except with respect to Third Party Intellectual Property Rights,
Seller or XX0.xxx, as the case may be, is the sole and exclusive owner of all
right, title and interest in and to Seller's or XX0.xxx's Intellectual Property
free and clear of any Encumbrance other than Permitted Encumbrances. Each of
Seller and XX0.xxx has full legal right and authority to license, sell, assign,
transfer and convey good, valid and marketable title to all Intellectual
Property owned by it, (i) free and clear of any and all ownership rights (and
ownership interests) assertable by any one or more third parties, (ii) free and
clear of any Encumbrances, (iii) without requiring any consent, authorization or
approval of any one or more third parties, and (iv) without violation of, breach
of, default under, conflict with, or acceleration of the performance required by
any agreement, obligation or legal restrictions (e.g. law, statute, regulation,
order, award, judgment, writ, injunction or decree), irrespective of whether
with or without notice, irrespective of whether with or without lapse of time,
and irrespective of whether judicial, administrative or arbitration.
(i) Seller and XX0.xxx have provided Purchaser access to all existing
documentation and source code for all software included in the Intellectual
Property owned by Seller and XX0.xxx. The condition of such documentation and
the source code has not had a material adverse effect on the ability of Seller
and XX0.xxx to use such software for the purposes intended in the operation of
the Purchased Business, and such software operates without material operating
defects. Seller has disclosed to Purchaser a summary description of any
material problems experienced by Seller or XX0.xxx in the past 12 months with
respect to such software and the provision of related services to Seller's and
XX0.xxx's clients.
(j) Seller's and XX0.xxx's software products, along with the
information technology systems (including but not limited to software) which are
used in the Purchased Business as currently conducted by Seller and XX0.xxx, are
(or will be on the Closing Date) "year 2000 compliant" in that they are designed
to be used prior to, during and after the calendar year 2000 A.D.
4.10 Contracts.
---------
(a) There are no contracts or other agreements (written or oral)
binding upon Seller primarily with respect to the Purchased Business or the
Transferred Assets or XX0.xxx except the Contracts set forth in Schedule
--------
1.1(a)(iii) of the Disclosure Schedules, contracts or agreements included
------------------
Disclosure Schedules, contracts or agreements included within the definition of
Excluded Assets or the contracts or agreements to which XX0.xxx is a party or by
which it is bound and listed or described on Schedule 4.10(a) of the Disclosure
----------------
Schedules (the "XX0.xxx Contracts"). Seller and XX0.xxx have delivered to
Purchaser true and complete copies of all written Contracts and XX0.xxx
Contracts and written
14
summaries of all oral Contracts and XX0.xxx Contracts and any amendments thereto
enumerated in Schedule 1.1(a)(iii) or Schedule 4.10(a) of the Disclosure
-------------------- ----------------
Schedules. XX0.xxx has not entered into any product development or licensing
agreement with Qualitative Marketing Software, Inc. ("QMS") other than the
Letter of Agreement dated March 30, 1999 (the "QMS Contract").
(b) The Contracts are all the material contracts, leases, agreements,
undertakings and commitments of Seller which relate primarily to the operation
of the Purchased Business. The XX0.xxx Contracts are all the material
contracts, leases, agreements, undertakings and commitments of XX0.xxx. Neither
Seller nor XX0.xxx is (nor to Seller's reasonable knowledge is any other party)
in material default under, nor does any event, circumstance or situation exist
which, with the passage of time and/or the giving of notice, would result in a
material default under any material lease, contract or agreement, undertaking,
commitment, judgment, order or decree of any court or any government agency or
instrumentality relating primarily to any of the Transferred Assets or the
Purchased Business, including without limitation, any material Contract or
material XX0.xxx Contract, under which any person, firm, corporation or other
entity is or may be entitled to assert any rights against any of the Transferred
Assets, the Purchased Business or XX0.xxx, except as disclosed in Schedule
--------
4.10(b) of the Disclosure Schedules.
-------
4.11 Litigation.
----------
There are no actions, causes of action, claims, suits, proceedings,
orders, writs, investigations, injunctions or decrees pending or, to the
knowledge of Seller, threatened, against Seller or seeking to prevent
consummation of the transactions provided for herein, at law, in equity or
admiralty, or before or by any court or any governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign, except where any
of the foregoing have not had and could not reasonably be expected to have a
Material Adverse Effect. There are no actions, causes of action, claims, suits,
proceedings, orders, writs, investigations, injunctions or decrees pending or,
to the knowledge of Seller, threatened against XX0.xxx or seeking to prevent the
consummation of the transactions provided for herein, at law, in equity or
admiralty, or before or by any court or any governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign, except where any
of the foregoing have not had and could not reasonably be expected to have a
Material Adverse Effect.
4.12 Taxes.
-----
Except as set forth on Schedule 4.12 of the Disclosure Schedules:
(a) Each of Seller, XX0.xxx and each member of any consolidated,
combined or unitary group of which Seller or XX0.xxx is a member (an
"Affiliate"), have filed all material Tax Returns that they were required to
file. Each such Tax Return was correct and complete in all material respects
when filed. Neither Seller, XX0.xxx. nor any Affiliate currently is the
beneficiary of any extension of time within which to file any Tax Return. No
claim by an authority in a jurisdiction where XX0.xxx does not file Tax Returns
is pending that XX0.xxx is or may be subject to taxation in a material amount by
that jurisdiction. There are no Encumbrances on any of the assets of XX0.xxx
that arose in connection with any failure (or alleged failure) to pay any
material amount of Tax.
15
(b) Each of Seller, XX0.xxx and any Affiliate has withheld and paid
all material Taxes required to have been withheld and paid in connection with
amounts paid or owing to any employee, independent contractor, creditor,
stockholder, or other third party.
(c) There is no pending material dispute or claim concerning any Tax
liability of Seller, XX0.xxx or any Affiliate either (A) claimed or raised by
any Tax authority in writing or (B) as to which any director, officer or
employee responsible for Tax matters of Seller, XX0.xxx or any Affiliate has
Knowledge based upon personal contact with any agent of a Tax authority.
Schedule 4.12 (iii) of the Disclosure Schedules lists all federal, state, local,
-------------------
and foreign income Tax Returns filed with respect to Seller, XX0.xxx and
Affiliates for taxable periods ended on or after December 31, 1995, indicates
those Tax Returns that have been audited, and indicates those Tax Returns that
currently are the subject of audit. The Seller has delivered to the Purchaser
correct and complete copies of all federal income Tax Returns, examination
reports, and statements of deficiencies assessed against or agreed to by Seller,
XX0.xxx or an Affiliate since December 31, 1995.
(d) None of Seller, XX0.xxx or any Affiliate has waived any statute
of limitations in respect of Taxes or agreed to any extension of time with
respect to a Tax assessment or deficiency where such waiver or extension remains
in effect.
(e) XX0.xxx has not filed a consent under Code (S)341(f) concerning
collapsible corporations. XX0.xxx has not made any payments, is not obligated
to make any payments, and is not a party to any agreement that under certain
circumstances could obligate it to make any payments that will not be deductible
under Code (S)280G or Section 162 by reason of Section 162(m). XX0.xxx is not a
party to any Tax allocation or sharing agreement or any other agreement pursuant
to which it could be liable for the Taxes of any person other than XX0.xxx
(excluding any liability under Treas. Reg. (S)1.1502-6 or any similar provision
of state, local, or foreign law).
(f) The unpaid Taxes of Seller, XX0.xxx and each Affiliate (A) did
not, as of March 31, 1999, exceed the reserve for Taxes (excluding any reserve
for deferred Taxes established to reflect timing differences between book and
Tax income) set forth on the face of the most recent balance sheet (included in
Seller's Form 10Q filed with the Securities and Exchange Commission for the
quarter then ended) (rather than in any notes thereto) and (B) do not exceed
that reserve as adjusted for the passage of time through the Closing Date in
accordance with the past custom and practice of Seller and XX0.xxx in filing
their Tax Returns. The unpaid Taxes of XX0.xxx will not, as of the Closing Date,
exceed the reserve for Taxes (excluding any reserve for deferred Taxes
established to reflect timing differences between book and Tax income) set forth
with regard to XX0.xxx on the face of the Final Balance Sheet.
(g) "Tax" means any federal, state, local, or foreign income, gross
---
receipts, license, payroll, employment, excise, severance, stamp, occupation,
premium, windfall profits, environmental (including taxes under Code (S)59A),
customs duties, capital stock, franchise, profits, withholding, social security
(or similar), unemployment, disability, real property, personal property, sales,
use, transfer, registration, value added, alternative or add-on minimum,
estimated, or other tax of any kind whatsoever, including any interest, penalty,
or addition thereto, whether disputed or not.
16
(h) "Tax Return" means any return, declaration, report, claim for
----------
refund, or information return or statement relating to Taxes, including any
schedule or attachment thereto, and including any amendment thereof.
4.13 Compliance with Applicable Law.
------------------------------
Except as set forth in the Disclosure Schedules, each of Seller and XX0.xxx is
presently complying, and on the Closing will be in compliance, in all material
respects with all applicable laws, rules, regulations, orders, ordinances,
judgments or decrees of all governmental authorities (federal, state, local or
otherwise) related to or affecting the Purchased Business, the Transferred
Assets or the business, operations, assets or properties of XX0.xxx, except
where such failure to so comply has not had and could not be reasonably expected
to have a Material Adverse Effect.
4.14 Labor Relations and Employment; No Collective Bargaining.
--------------------------------------------------------
(a) Neither Seller (solely with respect to the Purchased Business)
nor XX0.xxx has failed to comply in any material respect with Title VII of the
Civil Rights Act of 1964, as amended, the Fair Labor Standards Act, as amended,
the Occupational Safety and Health Act of 1970, as amended, any applicable
federal, state and local laws, rules and regulations relating to employment, or
any applicable laws, rules and regulations governing payment of minimum wages
and overtime rates, and the withholding and payment of taxes from compensation
of employees, except where such failure to so comply has not had and could not
be reasonably expected to have a Material Adverse Effect. The employment of all
persons presently employed or retained by Seller to work at the Purchased
Business or by XX0.xxx is terminable at will, all employment agreements, if any,
between Seller or XX0.xxx and any such employee shall terminate as of the
Closing, and there are no labor controversies pending or threatened between
Seller or XX0.xxx and any such employees.
(b) Neither the employees of Seller employed at the Purchased
Business nor the employees of XX0.xxx are subject to any collective bargaining
agreements or other contracts with a labor union, contingent or otherwise, nor
are any of such employees represented by any labor union. The relations of
Seller with respect to employees employed or retained by it in connection with
the Purchased Business and the relations of XX0.xxx with respect to all of its
employees are satisfactory. There are no unfair labor practice charges or
complaints pending against Seller involving any employees now or previously
employed at the Purchased Business or against XX0.xxx involving any employees
now or previously employed by it. During the 12-month period preceding the date
hereof, there have not been any labor disputes or written and filed grievances
or claims involving any employees of Seller relating to the Purchased Business
or any employees of XX0.xxx.
4.15 Brokers and Finders.
-------------------
Except for fees and expenses payable to U.S. Bancorp Xxxxx Xxxxxxx
Inc. in connection with the transactions contemplated by this Agreement (which
fees and expenses are payable by Seller), neither Seller, XX0.xxx nor any of
their officers, directors or employees, has incurred any liability for any
brokerage fees, commissions, finders' fees or similar fees or expenses in
connection with the transactions contemplated by this Agreement.
17
4.16 Powers of Attorney.
------------------
Except as set forth in the Disclosure Schedules, neither Seller nor
XX0.xxx has given to any person or party, and there is not currently existing,
any power of attorney pertaining to the Transferred Assets, the Purchased
Business or the business, properties or assets of XX0.xxx.
4.17 Employee Benefit Plans.
----------------------
(a) Schedule 4.17 to the Disclosure Schedules lists, with respect to
-------------
Seller and XX0.xxx, and any trade or business (whether or not incorporated) of
Seller or XX0.xxx: (i) all employee benefit plans or arrangements, oral or
written; (ii) each stock option, stock purchase, phantom stock, stock
appreciation right, supplemental retirement, severance, sabbatical, medical,
dental, vision care, disability, employee relocation, cafeteria benefit or
dependent care, life insurance or accident insurance plans, programs or
arrangements, oral or written; (iii) all bonus, pension, profit sharing,
savings, deferred compensation or incentive plans, programs or arrangements,
oral or written; (iv) all other fringe or employee benefit plans, programs or
arrangements, oral or written, that apply to senior management of Seller or
XX0.xxx and that do not generally apply to all employees; and (v) any current or
former employment or executive compensation or severance agreements or
arrangements, written or otherwise, as to which unsatisfied obligations of
Seller or XX0.xxx remain for the benefit of, or relating to, any present or
former employee, consultant or director of Seller or XX0.xxx (collectively, the
"Seller Employee Plans").
(b) Seller has furnished or made available to Purchaser a copy of
each of the Seller Employee Plans and related plan documents (including trust
documents, insurance policies or contracts, employee booklets, summary plan
descriptions and other authorizing documents, and, to the extent still in its
possession, any material employee communications relating thereto). The Seller
Employee Plans are duly registered where required by, and have at all times been
invested and administered in material compliance with, all applicable laws,
rules, regulations and terms of the Seller Employee Plans. All required employer
and employee contributions and premiums under the Seller Employee Plans have
been made, no past service funding obligations exist (either on a solvency or a
going concern basis) there are no outstanding violations or defaults thereunder,
and there are no actions or claims, pending or threatened (other than routine
claims for benefits), relating to any of the Seller Employee Plans. No promise
or commitment to increase benefits under any Seller Employee Plans has been made
except as required by applicable law.
4.18 Subsidiaries.
------------
XX0.xxx has no subsidiaries and owns no equity interest in any other
corporation, firm, joint venture, partnership or other entity.
4.19 Directors and Officers.
----------------------
The names and titles of all the officers and directors of XX0.xxx are
set forth on Schedule 4.19 of the Disclosure Schedules.
18
4.20 Accounts Receivable.
-------------------
All of the accounts receivable reflected on the Final Balance Sheet
will have arisen from bona fide transactions in the ordinary course of the
Purchased Business and will not be subject to any set-off or counterclaims. All
accounts receivable reflected on the Final Balance Sheet will be collectible in
full in the ordinary course in the aggregate recorded amounts therefor, less any
reserves for doubtful accounts reflected on the Final Balance Sheet.
4.21 Environmental Matters.
---------------------
None of Seller, XX0.xxx or the activities of the Purchased Business
are in material violation of any applicable statute, law or regulation relating
to the environment or occupational health and safety. Seller and XX0.xxx have
obtained all material permits, licenses, registrations and other governmental
authorizations currently required by all applicable statutes, laws or
regulations relating to the environment or occupational health and safety
necessary for the conduct of the Purchased Business or the business of XX0.xxx.
4.22 Asset Maintenance; Insurance; Sufficiency.
-----------------------------------------
Except as described in the Disclosure Schedules, the Transferred
Assets and the assets and properties of XX0.xxx have been properly maintained
and are: (i) in satisfactory operating condition (except for ordinary wear and
tear which in the aggregate would not have a Material Adverse Effect) and (ii)
are capable of being used in the Purchased Business without present need for
repair or replacement except in the ordinary course of business. Seller has
maintained fire, casualty, liability and other insurance with respect to the
Purchased Business and the Transferred Assets at levels which insure Seller with
regard to the Purchased Business and XX0.xxx in reasonably sufficient amounts
against risks customarily insured against by persons operating similar
businesses or properties of similar size in the localities where such businesses
or properties are located. The Transferred Assets and the assets and properties
of XX0.xxx together constitute all properties and assets essential to conduct
and operate the Purchased Business in the manner in which it is presently
conducted by Seller and XX0.xxx.
4.23 Disclosure.
----------
To the knowledge of Seller, no representation or warranty by Seller in
this Agreement (as supplemented by the Disclosure Schedules) or any statement in
the closing certificate delivered by Seller to Purchaser pursuant to Section
7.3(d)(i) contains or will contain any untrue statement of a material fact or
omits or will omit to state any material fact necessary to make the statements
contained in such representation, warranty or certificate, in light of the
circumstances under which it was or will be made, not misleading. As used in
this Section 4.23, "knowledge of Seller" with respect to a fact or matter shall
mean that an executive officer of Seller or XX0.xxx has, or at any time had, or
would after reasonable inquiry, have actual knowledge of such fact or matter.
4.24 Disclaimer of Other Representations and Warranties.
--------------------------------------------------
Except as expressly set forth in this Article IV, Seller makes no
representation or warranty, express or implied, at law or in equity, in respect
of any of its assets (including,
19
without limitation, the Transferred Assets), liabilities or operations,
including without limitation, with respect to merchantability or fitness for any
particular purpose, and any such other representations or warranties are hereby
expressly disclaimed. Purchaser hereby acknowledges and agrees that, except to
the extent specifically set forth in this Article IV, Purchaser is purchasing
the Transferred Assets on an "as-is, where-is" basis. Without limiting the
generality of the foregoing, Seller makes no representation or warranty
regarding any assets other than the Transferred Assets or any liabilities other
than the Assumed Liabilities, and none shall be implied at law or in equity.
ARTICLE V
---------
REPRESENTATIONS AND WARRANTIES OF PURCHASER
-------------------------------------------
Purchaser hereby represents and warrants to each Seller as follows:
5.1 Corporate Organization.
----------------------
Purchaser is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware.
5.2 Authority.
---------
Purchaser has full corporate power and authority to execute and
deliver this Agreement and the documents to be delivered at the Closing pursuant
to Section 7.2 hereof (collectively, the "Purchaser Agreements") and to
--------------------
consummate the transactions contemplated hereby and thereby. The execution and
delivery of this Agreement and the Purchaser Agreements by Purchaser and the
consummation by Purchaser of the transactions contemplated hereby and thereby
have been duly authorized by all necessary corporate action and no other
corporate action or proceeding on the part of Purchaser is necessary to
authorize the execution and delivery by Purchaser of this Agreement or the
Purchaser Agreements or the consummation by Purchaser of the transactions
contemplated hereby or thereby. This Agreement has been, and the Purchaser
Agreements on the Closing Date will be, duly executed and delivered by Purchaser
and this Agreement is, and on the Closing Date each of the Purchaser Agreements
will be, legal, valid and binding obligations of Purchaser, enforceable against
Purchaser in accordance with their terms, subject to applicable laws affecting
creditors' rights generally and, as to enforcement, to general principles of
equity, regardless of whether applied in a proceeding at law or in equity.
5.3 No Violations: No Consents or Approvals Required.
------------------------------------------------
Neither the execution and delivery of this Agreement or the Purchaser
Agreements nor the consummation of the transactions contemplated hereby or
thereby will (i) conflict with or violate any provision of the Certificate of
Incorporation or by-laws of Purchaser, (ii) conflict with or violate any law,
rule, regulation, ordinance, order, writ, injunction, judgment or decree
applicable to Purchaser or by which any of its properties or assets are bound or
affected or (iii) conflict with or result in any breach of or constitute a
default (or an event which with
20
notice or lapse of time or both would become a default) under, or give to others
any rights of termination or cancellation of, or accelerate the performance
required by or maturity of, or result in the creation of, any security interest,
lien, charge or encumbrance on any of its assets or properties pursuant to any
of the terms, conditions or provisions of, any note, bond, mortgage, indenture,
permit, license, franchise agreement, lease, contract, or other instrument or
obligation to which Purchaser is a party or by which Purchaser or any of its
properties or assets is bound or affected, except, in the case of (ii) and (iii)
above, for such conflicts, violations, breaches, defaults, terminations,
cancellations and accelerations which in the aggregate will not have a material
adverse effect on the ability of Purchaser to consummate the transactions
contemplated by this Agreement and the Purchaser Agreements. Except for
applicable requirements, if any, of the HSR Act, no notice, declaration, report
or other filing or registration with, and no waiver, consent, approval or
authorization of, any governmental or regulatory authority or instrumentality or
any other person is required to be submitted, made or obtained by Purchaser in
connection with the execution, delivery or performance of this Agreement or the
Purchaser Agreements and the consummation of the transactions contemplated
hereby or thereby.
5.4 Brokers and Finders.
-------------------
Purchaser does not have any obligation to pay any broker's, finder's,
investment banker's, financial advisor's or similar fee in connection with this
Agreement, or the transactions contemplated hereby or thereby, by reason of any
action taken by or on behalf of Purchaser except for fees and expenses payable
to Xxxxxx Xxxxxxxxx Xxxxxx, a division of First Union Capital Markets Group.
5.5 Disclosure.
----------
The representations and warranties by Purchaser in this Agreement and
the statements contained in the schedules, certificates, exhibits and other
writings furnished and to be furnished by Purchaser or its representatives to
Seller pursuant to this Agreement do not and will not contain any untrue
statement of a material fact and do not and will not omit to state any material
fact necessary to make the statements herein or therein in light of the
circumstances under which it is not or will not be made, not misleading.
5.6 Financing.
---------
Purchaser has received certain non-binding commitments to provide
funds to Purchaser sufficient to enable Purchaser to consummate the transactions
contemplated hereby and to pay fees and expenses related thereto (the
"Financing"). Purchaser has delivered a draft term sheet (including all
---------
amendments thereto through the date hereof) to Seller setting forth the proposed
terms on which Purchaser contemplates it will receive the Financing.
5.7 Investment.
----------
Purchaser is not acquiring the capital stock of XX0.xxx with a view to
or for sale in connection with any distribution thereof within the meaning of
the Securities Act of 1933, as amended.
21
5.8 No Litigation.
-------------
There are no actions, causes of action, claims, suits, proceedings,
orders, writs, investigations, injunctions or decrees pending, or to the
knowledge of Purchaser, threatened against Purchaser, which would affect the
consummation of the transactions contemplated herein, at law, in equity or
admiralty, or before or by any court or any governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign.
ARTICLE VI
----------
COVENANTS
---------
6.1 Conduct of the Purchased Business Pending the Closing.
-----------------------------------------------------
Seller hereby covenants that, from the date hereof to and including
the earlier of the termination of this Agreement and the Closing Date, unless
Purchaser shall have consented, which consent may be withheld in Purchaser's
sole discretion, or as otherwise contemplated by this Agreement:
(a) the Purchased Business shall be conducted and the Transferred
Assets and the assets and properties of XX0.xxx repaired and maintained in the
ordinary and usual course, in a manner consistent with past practice;
(b) except in the ordinary course of business consistent with past
practice, neither the Seller in connection with the Purchased Business nor
XX0.xxx shall (i) make any commitment to make any capital expenditures
individually in excess of $25,000 or in the aggregate in excess of $100,000;
(ii) dispose of any capital assets with a book value, individually or in the
aggregate, in excess of $100,000 or encumber any of its capital assets; (iii)
incur, or guarantee or otherwise become liable for, any indebtedness for
borrowed money in excess of $100,000 in the aggregate; (iv) amend any of the
Contracts or XX0.xxx Contracts; or (v) enter into any new employee benefit plan,
program or arrangement or amend any existing employee benefit plan, program or
arrangement or grant any increases in employee compensation;
(c) Seller shall use its commercially reasonable efforts to preserve,
and shall cause XX0.xxx to use its commercially reasonable efforts to preserve,
for Purchaser the goodwill of all persons dealing with the Purchased Business;
(d) Seller shall maintain, or cause XX0.xxx to maintain, as
applicable, in full force and effect all insurance policies now in effect or
renewals thereof covering the Transferred Assets, the Purchased Business or the
assets and property of XX0.xxx and the employees employed in the Purchased
Business or by XX0.xxx prior to the Closing Date, and shall provide reasonable
assistance to Purchaser to make claims against or otherwise obtain benefits
payable under any insurance policies maintained by Seller or XX0.xxx relating to
the Purchased Business that provide coverage with respect to events which occur
prior to the Closing. Purchaser shall reimburse Seller for all reasonable
out-of-pocket expenses incurred by Seller in providing said assistance;
22
(e) Seller shall promptly notify Purchaser of (i) any breach or
violation of, default or event of default under, or actual or threatened
termination or cancellation of any contract or other instrument relating to the
Purchased Business, including, without limitation, any Contract or XX0.xxx
Contract, which has had or could reasonably be expected to have a Material
Adverse Effect, (ii) any loss of, damage to, or disposition of any of the
Transferred Assets or any of the assets or properties of XX0.xxx (other than the
sale or use of inventories in the ordinary course of business) which has had or
could reasonably be expected to have a Material Adverse Effect, and (iii) any
claim or litigation, threatened or instituted against Seller or XX0.xxx, or any
other adverse event or occurrence involving or affecting the Purchased Business
or XX0.xxx which has had or could reasonably be expected to have a Material
Adverse Effect;
(f) Seller shall not enter or permit XX0.xxx to enter into any
collective bargaining agreement affecting the Purchased Business or the
employees of XX0.xxx; and
(g) except in the ordinary course of business, consistent with past
practice, Seller shall not sell, dispose of, distribute, encumber or enter into
any agreement, arrangement or commitment, whether oral or written, for the sale,
disposition, distribution or encumbrance of any portion of the Purchased
Business or permit XX0.xxx to do any of the foregoing with respect to any of its
assets or properties.
6.2 No Solicitation
---------------
(a) Unless and until the earlier of the Closing Date and the
termination of this Agreement pursuant to Section 9.1 hereof, Seller (including
through its agents, representatives or otherwise) shall not take or cause,
directly or indirectly, any of the following actions with any party other than
Purchaser or its respective designees: (i) solicit, knowingly encourage,
initiate or participate in any negotiations, inquiries or discussions with
respect to any offer, indication or proposal to acquire the Purchased Business,
any of the XX0.xxx Common Stock or more than 10% of the other Transferred Assets
or the assets and properties of XX0.xxx, whether by merger, consolidation, other
business combination, purchase of assets, tender or exchange offer or otherwise
(each of the foregoing, an "Acquisition Proposal") or (ii) disclose, in
connection with an Acquisition Proposal, any non-public information or provide
access to its properties, books or records or those of XX0.xxx, except as
required by law or pursuant to a governmental request for information.
(b) Notwithstanding anything to the contrary contained in Section
6.2(a) or elsewhere in this Agreement, prior to the Closing, Seller may, to the
extent the Board of Directors of the Company determines that it would be in the
best interests of Seller or its stockholders to do so, directly or indirectly,
participate in discussions or negotiations with, and furnish information, and
afford access to the properties, books, records, officers, employees and
representatives of the Seller and the Purchased Business to any Person, entity
or group after such Person, entity or group has delivered to Seller in writing,
an Acquisition Proposal which the Board of Directors of Seller in its good faith
reasonable judgment determines if consummated would be more favorable to Seller
or its stockholders than the transactions contemplated by this Agreement (a
"Superior Proposal"). In the event the Company receives a Superior Proposal,
-----------------
nothing contained in this Agreement (but subject to the terms of this paragraph
(b) and paragraph (c) below) will prevent the Board of Directors of Seller from
executing or entering into an
23
agreement relating to such Superior Proposal and recommending such Superior
Proposal to its stockholders, if the Board determines in good faith that it is
appropriate to do so; in such case, the Board of Directors of Seller may
withdraw, modify or refrain from making its recommendation of the transactions
contemplated hereby, and, to the extent it does so, Seller may refrain from
calling, providing notice of and holding the stockholders meeting to adopt this
Agreement and from soliciting proxies or consents to secure the vote or written
consent of its stockholders to adopt this Agreement and may terminate this
Agreement; provided however that the Seller shall provide Purchaser at least
-------- -------
five (5) calendar days prior written notice of Seller's intention to execute or
enter into an agreement relating to such Superior Proposal and containing a true
and correct copy and statement of the terms of such Superior Proposal, including
an identification of the party proposing the Superior Proposal, in order to
allow Purchaser the opportunity to propose a counteroffer to such Superior
Proposal prior to the xxxx Xxxxxx enters into an agreement relating to such
Superior Proposal.
(c) In the event Seller accepts a Superior Proposal, Seller may
terminate this Agreement by written notice to Purchaser, provided that Seller
--------
must abide by the termination provisions contained in Article IX of this
Agreement. Notwithstanding anything to the contrary contained in Section 6.2 or
elsewhere in this Agreement, prior to the Closing Date, Seller may, in
connection with a possible Acquisition Proposal, refer any third party to this
Section 6.2 and Article IX and make a copy of this Section 6.2 and Article IX
available to a third party.
6.3 Delivery of Balance Sheet and Additional Payment Amount.
-------------------------------------------------------
(a) As soon as practicable after the Closing Date, but in any case no
later than thirty days following the Closing Date, Seller shall deliver to
Purchaser an unaudited balance sheet setting forth in reasonable detail the Net
Asset Value, including without limitation and separately identifying the assets,
liabilities and stockholders' equity of XX0.xxx, as of the Closing Date,
prepared in accordance with Section 2.2 hereof (the "Final Balance Sheet").
Seller shall give Purchaser written notice of its intent to deliver the Final
Balance Sheet to Purchaser at least five days prior to the date of delivery.
(b) Purchaser shall pay to Seller the Additional Payment Amount (if
any), in accordance with the provisions of Section 2.2 hereof.
6.4 Access to Information; Continued Assistance.
-------------------------------------------
(a) From the date hereof until the earlier of the termination of this
Agreement and the Closing Date, Seller shall and shall cause XX0.xxx to (i) give
Purchaser and its respective authorized representatives reasonable access,
subject to such limitations or procedures as may be necessary to protect the
attorney-client privilege or the work product doctrine and subject to their
respective confidentiality obligations, to all offices, warehouses, and other
facilities and to all books and records of the Purchased Business or XX0.xxx,
(ii) permit Purchaser and all such persons to make such inspections of the
Transferred Assets and the assets and properties of XX0.xxx as they may
reasonably request and (iii) cause its officers to furnish Purchaser and all
such persons with such financial and operating data and other information with
respect to the Transferred Assets, the Purchased Business and XX0.xxx as they
may from time to time
24
reasonably request; provided that Purchaser shall exercise its rights under this
Section 6.4 in a manner that does not unreasonably interfere with the operations
of the Purchased Business.
(b) Purchaser will hold and will cause its representatives to hold in
strict confidence all documents and information concerning the Purchased
Business to the extent and in accordance with the terms and conditions of the
Confidentiality Agreement (as defined in Section 10.1 hereof).
(c) For a period of at least five (5) years following the Closing
Date, Purchaser will retain, at Purchaser's sole expense, the books, records and
other data of the Purchased Business transferred pursuant to this Agreement.
During such period, Purchaser will afford to Seller, its counsel and
accountants, during normal business hours, reasonable access to such books,
records and other data.
(d) Purchaser shall, at the request of Seller, (i) provide reasonable
assistance in the collection of information or documents and (ii) make
Purchaser's employees available when reasonably requested by Seller in
connection with claims or actions brought by or against third parties based upon
events or circumstances concerning Excluded Liabilities. Seller shall reimburse
Purchaser for all reasonable out-of-pocket expenses incurred by Purchaser in
providing said assistance.
(e) For a period of five (5) years following the Closing Date, Seller
will retain, at Seller's sole expense all tax and accounting records and other
books of account relating to the Purchased Business or XX0.xxx not delivered to
Seller pursuant to Section 7.3(f) hereof on the Closing Date (the "Retained
Records"). During such period, Seller agrees to make available to Purchaser, for
inspection and copying at Purchaser's expense, at reasonable times upon request
therefor, (i) the Retained Records and (ii) any other records and documents
relating to the Purchased Business, the Transferred Assets or XX0.xxx retained
by Seller, which in the case of this clause (ii) only, are, at the time of such
request, in Seller's possession or control. In addition, Seller agrees to make
available to Purchaser such then current employees of Seller, as Purchaser shall
from time to time reasonably request, to permit Purchaser to prepare (i) any tax
returns or other tax related documents in connection with any governmental
examination of tax returns and (ii) any other financial and accounting documents
for a one (1) year period following the Closing Date, relating to the Purchased
Business, the Transferred Assets or XX0.xxx for periods from and after the
Closing Date. Except as provided in the first sentence of this Section,
Purchaser shall reimburse Seller for all reasonable expenses incurred by Seller
in providing the assistance set forth in this paragraph (e). After the fifth
anniversary of the Closing Date, Seller may dispose of any Retained Records;
provided, however, that before disposing of any Retained Records, it will first
-------- -------
notify Purchaser and permit Purchaser, at its sole expense, to pick up such
Retained Records. In the event that Seller transfers all or substantially all of
its assets or liquidates and dissolves at a time when it continues to have
obligations under this paragraph (e), it shall either cause its successor to
agree to be bound by the provisions of this paragraph (e) or shall deliver to
Purchaser all (i) Retained Records and (ii) all other documents and records
relating to the Purchased Business, the Transferred Assets or XX0.xxx then in
its possession.
25
6.5 Commercially Reasonable Efforts.
-------------------------------
(a) Upon the terms and subject to the conditions hereof, each of the
parties hereto agrees to use its commercially reasonable efforts to take or
cause to be taken all actions and to do or cause to be done all things
necessary, proper or advisable to consummate the transfer of the Purchased
Business and the Transferred Assets and the transactions contemplated by this
Agreement, the Seller Agreements and the Purchaser Agreements and shall use its
commercially reasonable efforts to obtain all necessary waivers, consents and
approvals and to effect all necessary registrations and filings.
(b) In the event Purchaser or Seller, as the case may be, is unable
to obtain, prior to the Closing, any consents, approvals, waivers or other
authorizations necessary or advisable to transfer to Purchaser any Transferred
Asset or otherwise consummate the transactions contemplated hereby, and
Purchaser nonetheless elects to consummate the transactions contemplated hereby,
Purchaser and Seller will cooperate with each other in order to obtain such
consents, approvals, waivers or other authorizations at the earliest practicable
date. In each instance where such consents, approvals, waivers or other
authorizations cannot be obtained prior to the Closing, Seller shall use its
commercially reasonable efforts to enter into such alternative arrangements and
agreements with Purchaser as may be appropriate in order to permit Purchaser to
realize, receive and enjoy substantially similar rights and benefits and to
enable Purchaser to conduct operations of the Purchased Business and the
ownership of the Transferred Asset until the consents, approvals, waivers or
other authorizations are obtained; provided however, that Seller shall have no
obligation to pay any fees, incur any expense or make any modification to such
contract, license, lease, sales order, purchase order, commitment, permit,
operating authority or other agreement to obtain such consent. If, after the
exercise of commercially reasonable efforts, any such consents, approvals,
waivers or other authorizations are not obtained, Seller agrees to cooperate
with Purchaser in any reasonable arrangements designed to provide, to the extent
reasonably practicable and at Purchaser's request and expense, for the benefit
of Purchaser any and all rights of Seller in and to such Transferred Asset.
6.6 Public Announcements.
--------------------
Purchaser and Seller will consult with each other before issuing any
press release or otherwise making any public statements with respect to this
Agreement or the transactions contemplated hereby and shall not issue any such
press release or make any such public statement prior to such consultation.
6.7 Competition; Non-solicitation.
-----------------------------
(a) Seller covenants and agrees that, during the three-year period
immediately following the Closing, it shall not, directly, indirectly or through
any ownership interest in any firm, corporation, partnership, proprietorship or
other business, engage in the activities now engaged in by the Purchased
Business in the geographic areas in which the Purchased Business is now
conducted; provided, however, that (i) Seller may own, directly or indirectly,
solely as an investment, securities of any person which are publicly traded if
Seller does not, directly or indirectly, beneficially own five percent or more
of any class of securities of such person; and (ii) Seller may have such an
ownership interest during such three-year period if such ownership
26
arises as a result of the acquisition of a business entity having business
activities other than those now engaged in by the Purchased Business and Seller
is proceeding actively to dispose of those business activities prohibited by
this Section.
(b) For a period of three years after the Closing date, Seller shall
not directly or indirectly (i) induce or attempt to induce any employee of
XX0.xxx or any employee of Seller who becomes an employee of Purchaser on or
after the date hereof to leave XX0.xxx or Purchaser, as the case may be, or
accept any other employment or position unless (in each case, prior to any such
inducement or attempted inducement), such employee has been terminated by
XX0.xxx or Purchaser or has resigned as an employee of XX0.xxx or Purchaser,
(ii) assist any other entity in hiring any such employee other than by
furnishing employment data and recommendations when solicited by potential
employers, or (iii) solicit, approach or otherwise contact any client of the
Purchased Business in an attempt to obtain such client as a customer of any
business conducted by Seller.
(c) Nothing in this Section 6.7 shall prevent any direct or indirect
current or future stockholder or affiliate of Seller (each, a "Related Party")
from engaging in the activities now engaged in by the Purchased Business;
provided that Seller shall not do any of the following in an attempt to
circumvent the restrictions set forth in Section 6.7(a): (i) permit any Related
Party to use, or assist any Related Party in using, any Confidential Information
of Seller or XX0.xxx in connection with such activities, (ii) permit any Related
Party to utilize the assistance of any person employed as an employee, agent,
contractor, consultant or advisor of Seller on the date thereof or the Closing
Date in connection with such activities, (iii) permit any Related Party to
utilize the trade names "IntelliQuest" or "IntelliQuest Information Group, Inc."
in connection with such activities, or (iv) assist any Related Party in the
solicitation of business from any client or customer of the Purchased Business
or XX0.xxx prior to the Closing Date for services provided to such client or
customer by the Purchased Business or XX0.xxx. As used herein, the term
"affiliate" shall have the meaning ascribed to such term in Rule 405 promulgated
under the Securities Act of 1933, as amended.
(d) Purchaser covenants and agrees that, if the Closing shall occur,
during the three-year period immediately following the Closing, it shall not,
directly, indirectly or through any ownership interest in any firm, corporation,
partnership, proprietorship or other business, engage in the activities now
engaged in by the Seller in connection with its research business in the
geographic areas in which such business is now conducted; provided, however,
that (i) Purchaser may own, directly or indirectly, solely as an investment,
securities of any person which are publicly traded if Purchaser does not,
directly or indirectly, beneficially own five percent or more of any class of
securities of such person; and (ii) Purchaser may have such an ownership
interest during such three-year period if such ownership arises as a result of
the acquisition of a business entity having business activities other than those
now engaged in by Seller is connection with its research business and Purchaser
is proceeding actively to dispose of those business activities prohibited by
this Section.
6.8 Collection of Accounts.
----------------------
Any payment in respect of accounts receivable reflected on the Final
Balance Sheet received by Seller following the Closing Date shall be segregated
into a separate account
27
established for such purpose by Seller, and shall be paid to Purchaser within
five (5) business days of receipt by Seller by wire transfer in immediately
available (same day) funds to the account specified by Purchaser for this
purpose, together with a statement of accounting therefor in the form of
remittance advice provided in connection with such payment or, if no such
remittance advice was provided with such payment, in a manner otherwise
reasonably acceptable to Purchaser.
6.9 Offers of Employment.
--------------------
Prior to the Closing Date, Purchaser shall offer employment to Xx.
Xxxxxxx Xxxxxxx and the other employees listed on Schedule 6.9 of the Disclosure
------------
Schedules, such employment to be effective on the Closing Date. Purchaser shall
not be obligated to offer employment to any other individuals currently employed
by Seller and shall not be obligated to assume any severance obligations with
respect to any employees who are not offered employment or who do not accept
Purchaser's offer of employment.
6.10 Seller 401(k) Plan.
------------------
(a) Effective as of the Closing Date, Seller shall cause each
employee of the Seller or XX0.xxx who remains employed with XX0.xxx following
the Closing Date or who becomes employed by the Purchaser (collectively, the
"Continued Employees") to have a fully nonforfeitable right to such employee's
account balances, if any, under the defined contribution individual account plan
currently participated in by employees of XX0.xxx (the "Seller 401(k) Plan").
Effective as of the Closing Date, Purchaser shall establish or shall extend
coverage to each Continued Employee under Purchaser's current defined
contribution plan (the "Purchaser Plan") qualified pursuant to Sections 401(a)
and 401(k) of the Code as it exists on the Closing Date. Each Continued Employee
who is a participant in the Seller 401(k) Plan shall cease to be an active
participant in and to accrue benefits under such plan as of the Closing Date.
The Purchaser Plan shall credit each Continued Employee with service for
purposes of eligibility to participate and vesting under the Purchaser Plan to
the extent such service was recognized for such purposed under the Seller 401(k)
Plan immediately prior to the Closing Date.
(b) Purchaser shall cause Purchaser's Plan to accept rollover
contributions of amounts distributed from the Seller's 401(k) plan to continued
Employees, provided and to the extent that such amounts qualify as eligible
rollover amounts.
6.11 Vacation.
--------
With respect to any accrued but unused vacation time (which is
reflected as a liability on the Final Balance Sheet) to which any Continued
Employee is entitled pursuant to the vacation policy applicable to such
Continued Employee immediately prior to the Closing Date, Purchaser shall cause
XX0.xxx to allow such Continued Employee to utilize such accrued vacation time
in accordance with the existing policies of Seller and XX0.xxx as of the
Closing.
6.12 QMS Contract.
------------
Seller shall cause XX0.xxx to terminate and/or discharge in full prior
to the Closing Date all of its liabilities and obligations under the QMS
Contract, and shall not permit XX0.xxx to
28
enter into, or incur any obligation or liability under any, product development
or licensing agreement or other contract or agreement with QMS pursuant to or in
connection with the QMS Contract.
6.13 Accelerated Vesting of Employee Options.
---------------------------------------
If any outstanding options, whether then vested or not, to purchase
capital stock of Seller granted to employees of the Purchased Business or
XX0.xxx who will remain employees of the Purchased Business or XX0.xxx on and
after the Closing Date (the "XX0.xxx Employee Options") are not cancelled prior
to or within five business days following the Closing in exchange for cash
consideration on the same terms as options to purchase capital stock granted to
other employees of Seller, Seller shall, prior to or within five business days
following the Closing, take all actions necessary to vest in full and make
immediately exercisable all outstanding XX0.xxx Employee Options not so
cancelled.
6.14 Assumed Liabilities; Excluded Liabilities.
-----------------------------------------
Pursuant to the Assumption Agreement, Purchaser shall agree to pay,
perform and discharge the Assumed Liabilities in accordance with terms thereof
as and when due or required. Seller shall pay, perform and discharge the
Excluded Liabilities in accordance with the terms thereof as and when due or
required.
6.15 Transition Services.
-------------------
Subsequent to the Closing, Seller shall provide to Naviant such
accounting, technical and other support services as Purchaser reasonably shall
request for a smooth and orderly transfer of the Purchased Business to
Purchaser.
ARTICLE VII
CONDITIONS TO CLOSING
---------------------
7.1 General Conditions.
------------------
The obligations of each party hereto to effect the transactions
contemplated by this Agreement shall be subject to the satisfaction at or prior
to the Closing of the following conditions (or the written waiver thereof by
such party):
(a) Orders, statutes, etc. No order, statute, rule, regulation,
---------------------
executive order, stay, decree or restraining order shall have been enacted,
entered, promulgated or enforced by any court of competent jurisdiction or
governmental or regulatory authority or instrumentality of competent
jurisdiction that prohibits the consummation of the transactions contemplated
hereby.
(b) HSR Act. Any waiting period applicable to the transactions
-------
contemplated hereby pursuant to the HSR Act shall have expired or been
terminated.
29
(c) No Injunction; Litigation. No injunction or restraining order
-------------------------
shall be in effect which forbids or enjoins the consummation of the transactions
contemplated by this Agreement, no proceedings for such purpose shall be
pending, and no federal, state, local or foreign statute, rule or regulation
shall have been enacted which prohibits, restricts or delays the consummation
hereof. No litigation or governmental investigation or proceeding seeking to
enjoin or challenging, or seeking damages or relief in connection with, the
transactions contemplated by this Agreement shall be pending, which in either
party's reasonable judgment (with advice of counsel), makes it inadvisable to
proceed with the transaction contemplated by this Agreement.
(d) Approvals. All governmental and third party approvals, consents,
---------
licenses, permits or waivers necessary for consummation of the transactions
contemplated by this Agreement, including, without limitation, any consents
required under any Contract or XX0.xxx Contract, shall have been obtained. In
addition, no Contract or XX0.xxx Contract listed on Schedule 4.3 shall have been
terminated after notice of the transactions contemplated by this Agreement shall
have been given to the required parties thereto.
7.2 Conditions to Obligations of Seller.
-----------------------------------
The obligations of Seller to close the transactions contemplated by
this Agreement shall be subject to the satisfaction at or prior to the Closing
of the following conditions (or the written waiver thereof by Seller):
(a) Covenants and Agreements. Purchaser shall have performed and
------------------------
complied with in all material respects all covenants and agreements required
under this Agreement to be performed by it at or prior to the Closing.
(b) Representations and Warranties. The representations and
------------------------------
warranties of Purchaser contained herein shall be true and correct in all
material respects (unless such representation or warranty is by its terms
expressed in terms of materiality, in which case, such representation or
warranty shall be true and correct in all respects) at and as of the Closing
Date as if made at and as of such time except to the extent that a different
time is specifically stated in such representations and warranties.
(c) Deliveries. Purchaser shall have delivered, or caused to be
----------
delivered, to Seller the following (which shall be in form and substance
satisfactory to Seller):
(i) Purchase Price - Seller shall have received the portion of
--------------
the Purchase Price payable directly to it, and the Escrow Agent shall have
received the Balance Sheet Adjustment Escrow Amount;
(ii) Opinion of Counsel - Seller shall have received an opinion
------------------
of Xxxxxxx, Xxxxxxx & Xxxxxxxx, LLP, counsel to the Purchaser, covering the
transactions contemplated hereby in form and substance reasonably satisfactory
to Seller;
(iii) Secretary's Certificate - a certificate, dated the Closing
-----------------------
Date, of the Secretary of Purchaser with respect to (a) the resolutions adopted
by the Board of Directors of Purchaser approving this Agreement and the
transactions contemplated hereby and (b) the
30
incumbency and specimen signature of each officer of Purchaser executing this
Agreement and any other agreement or certificate to be executed by Purchaser and
a certification by another officer of Purchaser as to the incumbency and
specimen signature of the Secretary of the Purchaser;
(iv) Officer's Certificate - a certificate, substantially in a
---------------------
form attached hereto as Exhibit D-1 and by this reference incorporated herein,
-----------
dated the Closing Date and signed by an executive officer of Purchaser expressly
certifying that the conditions set forth in Sections 7.2(a) and 7.2(b) have been
met;
(v) Escrow Agreement - the Purchaser shall have executed an
----------------
Escrow Agreement with Seller and the Escrow Agent in substantially the form
attached hereto as Exhibit C; and
---------
(vi) [Reserved]; and
(vii) Cooperation Agreement. Purchaser shall have entered into a
---------------------
Cooperation Agreement with Seller in substantially the form attached hereto as
Exhibit L.
---------
7.3 Conditions to Obligations of Purchaser.
--------------------------------------
The obligation of Purchaser to close the transactions contemplated
hereby shall be subject to the fulfillment and satisfaction, prior to or at the
Closing, of the following conditions (or the written waiver thereof by
Purchaser):
(a) Representations, Warranties and Covenants. The representations
-----------------------------------------
and warranties of Seller contained in this Agreement shall be true and correct
in all material respects (unless such representation or warranty is by its terms
expressed in terms of materiality, in which case, such representation or
warranty shall be true and correct in all respects) on and as of the Closing
Date with the same force and effect as though made on and as of the Closing
Date, except to the extent that a different time is specifically stated in such
representations and warranties. Seller shall have performed and complied in all
material respects with all covenants and agreements required by this Agreement
to be performed or complied with by Seller on or prior to the Closing Date.
(b) No Change in Capital Structure. No dividends, distributions, new
------------------------------
options or equity shall be paid or issued by XX0.xxx, and no other changes in
the capitalization of XX0.xxx shall have occurred between March 31, 1999 and the
Closing Date.
(c) Material Adverse Change. Since March 31, 1999, there shall not
-----------------------
have been a material adverse change in the assets or properties (including,
without limitation, the Transferred Assets), business, financial condition or
results of operations of XX0.xxx and the Purchased Business, taken as a whole,
other than changes affecting the database research industry generally.
(d) Deliveries. Seller shall have delivered, or caused to be
----------
delivered, to Purchaser the following (which shall be in form and substance
satisfactory to Purchaser).
31
(i) Officer's Certificate - a certificate, substantially in a
---------------------
form attached hereto as Exhibit D-2 and by this reference incorporated herein,
-----------
dated the Closing Date and signed by an executive officer of Seller expressly
certifying that the conditions set forth in Sections 7.3(a) and 7.3(b) have been
met;
(ii) Opinion of Counsel - an opinion of counsel for Seller
------------------
covering the transactions contemplated hereby in form and substance reasonably
satisfactory to Purchaser;
(iii) Secretary's Certificate - a certificate, dated the Closing
-----------------------
Date, of the Secretary of Seller with respect to (a) the resolutions adopted by
the Board of Directors of Seller approving this Agreement and the transactions
contemplated hereby and (b) the incumbency and specimen signature of each
officer of Seller executing this Agreement and any other agreement or
certificate to be executed by Seller and a certification by another officer of
Seller as to the incumbency and specimen signature of the Secretary of the
Seller;
(iv) General Assignment and Xxxx of Sale - an original general
-----------------------------------
assignment and xxxx of sale, substantially in the form attached hereto as
Exhibit A and by this reference incorporated herein;
---------
(v) Stock Certificates and Stock Powers - Seller shall
-----------------------------------
deliver to Purchaser certificates evidencing all outstanding shares of the
XX0.xxx Common Stock which are duly endorsed for transfer thereon or by means of
duly executed stock powers attached thereto;
(vi) Escrow Agreement - the Seller shall have executed an
----------------
Escrow Agreement with Purchaser and the Escrow Agent in substantially the form
attached hereto as Exhibit C;
---------
(vii) Intellectual Property Assignment - an original assignment
--------------------------------
of all Seller's Intellectual Property related to the Purchased Business,
including that set forth in Schedule 1.1(a)(i) of the Disclosure Schedules,
-----------------
substantially in the form attached hereto as Exhibit B and by this reference
---------
incorporated herein (the "Intellectual Property Agreement");
-------------------------------
(viii) [Reserved];
(ix) Resignations of Directors and Officers - Each of the
--------------------------------------
directors and officers of XX0.xxx shall have delivered to Purchaser written
letters of resignation resigning such director's or officer's position with
XX0.xxx as of the Closing Date;
(x) Acceptance of Employment Offers - Xx. Xxxxxxx Xxxxxxx and
-------------------------------
at least 70% of the individuals listed on Schedule 6.9 hereof (or such other
------------
number as shall be acceptable to Purchaser) shall have accepted employment with
Purchaser on or before the Closing on terms and conditions acceptable to
Purchaser;
(xi) Employment Agreements - Each of Xx. Xxxxxxx Xxxxxxx, and
---------------------
any other person listed on Schedule 6.9 hereof employed by Purchaser in
------------
connection with the transactions contemplated by this Agreement, shall have
entered into the Purchaser's standard Employment Agreement in substantially the
form attached hereto as Exhibit E;
---------
32
(xii) License Agreement - Seller shall have entered a License
-----------------
Agreement with Purchaser and XX0.xxx substantially in the form attached hereto
as Exhibit K relating to the Reply Quest software developed by Seller; and
---------
(xiii) Cooperation Agreement - Seller shall have entered into a
---------------------
Cooperation Agreement with Purchaser substantially in the form attached hereto
as Exhibit L.
---------
(e) Financing. Purchaser shall have obtained Financing resulting
---------
in net proceeds to Purchaser of at least $60 million on substantially the terms
set forth in the terms sheet with respect thereto previously provided to Seller.
(f) Records. Seller shall have delivered to Purchaser copies (which
-------
shall be true, complete and accurate in all material respects) of the following
accounting and tax records and books of account of Seller relating primarily to
the Purchased Business or XX0.xxx in form acceptable to Purchaser: (i) current
accounts receivable and accounts payable files, including copies of all open
invoices, (ii) reconciliations of all bank statements relating to deposit
accounts included in the Transferred Assets or held by XX0.xxx, (iii) sales tax
records for the one-year period on the Closing Date, and (iv) payroll records
for the one-year period ending on the Closing Date.
(g) Required Consents. All notices, declarations, reports and other
-----------------
filings and registrations with, and all waivers, consents, approvals and
authorizations of, any governmental or regulatory authority or instrumentality
or any other person required to be submitted, made or obtained by Seller or
XX0.xxx in connection with the execution, delivery or performance of this
Agreement or the Seller Agreements or the consummation of the transactions
contemplated hereby or thereby, shall have been submitted, given, made or
obtained, except where the failure to give notice, declare, report, file, or
obtain any waiver, consent, approval or authorization does not and would not
reasonably be expected to have a material adverse effect on the ability of the
parties hereto to consummate the transactions contemplated by this Agreement or
a Material Adverse Effect.
ARTICLE VIII
SURVIVAL OF REPRESENTATIONS
---------------------------
None of the representations and warranties of Seller contained in or
made pursuant to this Agreement or contained in any certificate, document or
instrument delivered pursuant to or in connection with this Agreement or the
transactions contemplated hereby shall survive the Closing. Covenants and
agreements set forth in this Agreement to be performed after the Closing will
survive the Closing in accordance with their respective terms. No claim shall be
made or action brought by any party after the Closing for the breach of any
representation or warranties in this Agreement or in any instrument delivered
pursuant to this Agreement or with respect to any agreement or covenant in this
Agreement or in any instrument delivered pursuant to this Agreement, except with
respect to those that by their terms contemplate performance after the Closing.
33
ARTICLE IX
TERMINATION; AMENDMENT; WAIVER
------------------------------
9.1 Termination.
-----------
This Agreement may be terminated at any time prior to the Closing Date
as follows:
(a) by the Seller or Purchaser if the Closing shall not have occurred
on or before September 30, 1999, which date may be extended by mutual consent of
the parties, provided that the right to terminate this Agreement under this
Section 9.1(a) shall not be available to any party whose failure to fulfill any
obligation under this Agreement has been the cause of, or resulted in, the
failure of the Closing to occur on or before such date;
(b) by Seller upon written notice to Purchaser if Purchaser has
materially breached any representation, warranty, covenant or agreement
contained herein and has not cured such breach within twenty (20) days of
receipt of written notice from the Seller or by the Closing Date, if earlier and
such breach will result in a condition to Seller's obligation to consummate the
transactions contemplated hereby not to be satisfied;
(c) by Purchaser upon written notice to Seller if the Seller has
materially breached any representation, warranty, covenant or agreement
contained herein and has not cured such breach within twenty (20) days of
receipt of written notice from the Purchaser or by the Closing Date, if earlier
and such breach will result in a condition to Purchaser's obligation to
consummate the transactions contemplated hereby not to be satisfied;
(d) by Seller or Purchaser if any court of competent jurisdiction or
governmental body shall have issued an order, decree or ruling or taken any
other action permanently restraining, enjoining or otherwise prohibiting the
Transfer and such order, decree or ruling shall have become final and
nonappealable;
(e) by the Purchaser if the Board of Directors of Seller (i) fails to
approve the this Agreement and the transactions contemplated hereby because it
does not believe this Agreement and the transactions contemplated hereby to be
fair to and in the best interest of Seller and its stockholders, (ii) adopts
resolutions approving or otherwise authorizes or recommends to Seller's
stockholders a Superior Proposal, or (iii) prior to the Closing Date, the Seller
has entered into an agreement to engage in a Superior Proposal with any person
other than Purchaser;
(f) at any time with the mutual written consent of Purchaser and
Seller; or
(g) by the Seller if the Board of Directors of Seller determines to
accept a Superior Proposal.
34
9.2 Effect of Termination.
---------------------
If this Agreement is terminated as provided in Section 9.1, this
Agreement shall forthwith become void and have no effect, without liability on
the part of any party, its directors, officers or stockholders, other than as
set forth in the provisions of this Section 9.2, Section 10.9 relating to
expenses, Section 6.6 relating to publicity and Section 10.1 relating to
confidentiality to the extent provided therein and Section 9.3. Nothing
contained in Section 9.2 or 9.3 shall relieve any party from liability for any
breach of any representation, warranty, covenant or agreement contained in this
Agreement occurring before such termination.
9.3 Termination Fee.
---------------
(a) Seller will make a cash payment to Purchaser of $1,500,000 if and
only if prior to the Closing Date:
(i) The Purchaser terminates this Agreement pursuant to
Section 9.1(e) hereof; or
(ii) The Seller terminates this Agreement pursuant to
Section 9.1 (g) hereof.
(b) If Purchaser terminates this Agreement pursuant to Section
9.1(c), Seller will make a cash payment to Purchaser of $300,000;
(c) If Purchaser terminates this Agreement pursuant to Section 9.1(c)
prior to the Closing Date and Seller or any affiliate thereof enters into a
definitive agreement within 180 days after the date of such termination to sell
all or substantially all of the Purchased Business in any one or series of
transactions, whether by sale of assets, merger consolidation or otherwise,
Seller shall make a cash payment of $1,200,000 to Purchaser (in addition to the
payment required by Section 9.3(b));
(d) Any payment required by this section will be payable (by wire
transfer of immediately available funds to an account designated by the party
entitled to such payment) within five (5) business days after receipt by Seller
from Purchaser of a demand for such payment.
9.4 Assignment.
----------
This Agreement shall be binding upon, and inure to the benefit of, the
parties and their respective successors and permitted assigns. This Agreement or
any rights or obligations hereunder shall not be assignable by any party, except
that either Seller or Purchaser may after the Closing (i) assign any or all of
its rights and interests hereunder (A) to one or more of its affiliates or (B)
in connection with the transfer of all or substantially all of its assets
(provided that any transferee shall expressly assume its liabilities and
obligations under this Agreement), (ii) designate one of more of its affiliates
to perform its obligations hereunder or (iii) pledge its rights hereunder to a
lender as security for any financing or refinancing (provided that Seller and
Purchaser shall nonetheless remain liable and responsible for the performance of
all of their
35
respective obligations hereunder in the case of any of the foregoing). Any
attempted assignment made in violation of this Section 9.4 shall be null and
void.
9.5 Waiver.
------
The terms of this Agreement may be waived only by a written instrument
signed by the party waiving compliance. No waiver of any provision of this
Agreement shall be deemed or shall constitute a waiver of any other provision
hereof (whether or not similar), nor shall such waiver constitute a continuing
waiver unless otherwise expressly provided.
9.6 Time of the Essence.
-------------------
The parties agree that time is of the essence in respect to the
consummation of all of the transactions contemplated by this Agreement.
ARTICLE X
MISCELLANEOUS
-------------
10.1 Confidentiality.
---------------
In the event that the transactions contemplated by this Agreement are
consummated, Seller shall treat the Confidential Information as confidential,
shall preserve the confidentiality thereof and shall not duplicate or use the
Confidential Information, and shall use all reasonable efforts to ensure that
its officers, directors, employees and affiliates who have had access to the
Confidential Information keep the Confidential Information confidential and do
not use the Confidential Information. The letter agreement dated April 8, 1999,
by and among the parties hereto relating to confidentiality (the
"Confidentiality Agreement") is hereby confirmed and acknowledged as a
continuing obligation of the parties and shall survive the Closing of the
transactions contemplated in this Agreement, and each party hereby represents
that it has, at all times since the execution of the Confidentiality Agreement,
complied with the provisions contained therein.
10.2 [Reserved].
--------
10.3 Title, Possession and Risk of Loss.
----------------------------------
The title to, possession of and risk of loss, destruction or damage
with respect to the Purchased Business and the Transferred Assets shall pass to
Purchaser as of the time of Closing; provided, however, that this Section 10.3
-------- -------
shall not diminish, limit or otherwise impair in any manner Purchaser's or
Seller's rights under the other provisions of this Agreement or the instruments,
agreements, certificates and documents to be executed and delivered in
connection herewith that apportion liability among the parties with respect to
events, occurrences, omissions or other matters arising or occurring during
specific periods.
36
10.4 Entire Agreement; Amendments.
----------------------------
This Agreement, the other documents delivered in connection herewith
and the Confidentiality Agreement constitute the entire agreement of the parties
with respect to the subject matter hereof and supersede all other prior
agreements and understandings, both written and oral, among the parties, or any
of them, with respect to the subject matter hereof. The representations,
warranties, covenants and agreements set forth in this Agreement constitute all
the representations, warranties, covenants and agreements of the parties hereto
and their respective shareholders, directors, officers, employees, affiliates,
advisors (including financial, legal and accounting), agents and representatives
and upon which the parties have relied, and except as specifically provided
herein, no change, modification, amendment, waiver, addition or termination of
this Agreement or any part thereof shall be valid unless in writing and signed
by or on behalf of the party to be charged therewith. No delay on the part of
any party hereto in exercising any right, power or privilege hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, power or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or privilege hereunder. Unless
otherwise provided, the rights and remedies herein provided are cumulative and
are not exclusive of any rights or remedies which the parities hereto may
otherwise have at law or in equity. Whenever this Agreement requires or permits
consent by or on behalf of a party, such consent shall be given in writing in a
manner consistent with the requirements for a waiver of compliance as set forth
in this Section 10.4.
10.5 Power of Attorney.
-----------------
Effective upon the Closing Date, Seller hereby irrevocably constitutes
and appoints Purchaser as its true and lawful attorney-in-fact, with full power
of substitution, in the name of Seller, on behalf of and for the benefit of the
Purchaser, to endorse, without recourse, checks, notes and other instruments
included in the Transferred Assets in the name of Seller. Seller agrees that the
foregoing powers are coupled with an interest and shall be irrevocable by
Seller. Seller further agrees that Purchaser shall retain for its own account
any amounts collected pursuant to the foregoing powers and Seller shall promptly
transfer and deliver to Purchaser any cash or other property received by Seller,
directly or indirectly, at any time after the Closing Date in respect of any
accounts receivable or otherwise included in the Transferred Assets transferred,
conveyed and assigned to Purchaser as provided herein.
10.6 Certain Tax Matters.
-------------------
The following provisions shall govern the allocation of responsibility
as between Purchaser and Seller for certain tax matters following the Closing
Date:
(a) Section 338(h)(10) Election. Seller will join with Purchaser in
---------------------------
making an election under Section 338(h)(10) of the Code (and any corresponding
elections under state, local, or foreign tax law to the extent requested by
Purchaser or Seller) (collectively, a "Section 338(h)(10) Election") with
respect to the purchase and sale of the stock of XX0.xxx hereunder.
(b) Tax Periods Ending on or Before the Closing Date. Seller shall
------------------------------------------------
prepare or cause to be prepared and file or cause to be filed all Tax Returns
for Seller and any Affiliate
37
(other than XX0.xxx) for all periods ending on or prior to the Closing Date
which are filed after the Closing Date, and any income Tax Return of XX0.xxx
with respect to periods for which a consolidated, unitary or combined income Tax
Return of Seller or an Affiliate will include the operations of XX0.xxx.
Purchaser shall prepare or cause to be prepared and file or cause to be filed
any Tax Returns of XX0.xxx for periods ending on or prior to the Closing Date
which are filed after the Closing Date, other than those income Tax Returns of
XX0.xxx which are filed as part of a consolidated, unitary or combined income
Tax Return of Seller or an Affiliate as set forth in the preceding sentence.
(c) Tax Periods Beginning Before and Ending After the Closing Date.
--------------------------------------------------------------
Purchaser shall prepare or cause to be prepared and file or cause to be filed
all Tax Returns of XX0.xxx for all periods which begin before the Closing Date
and end after the Closing Date
(d) Cooperation on Tax Matters.
--------------------------
(i) Purchaser, Seller and XX0.xxx shall cooperate fully, as and
to the extent reasonably requested by the other party, in connection with the
filing of Tax Returns pursuant to this Section and any audit, litigation or
other proceeding with respect to Taxes. Such cooperation shall include the
retention and (upon the other party's request) the provision of records and
information which are reasonably relevant to any such audit, litigation or other
proceeding and making employees available on a mutually convenient basis to
provide additional information and explanation of any material provided
hereunder. Purchaser and Seller agree (A) to retain all books and records with
respect to Tax matters pertinent to Seller and XX0.xxx relating to any taxable
period beginning before the Closing Date until the expiration of the statute of
limitations (and, to the extent notified by Purchaser, any extensions thereof)
of the respective taxable periods, and to abide by all record retention
agreements entered into with any taxing authority, and (B) to give the other
party reasonable written notice prior to transferring, destroying or discarding
any such books and records and, if the other party so requests, Purchaser or
Seller, as the case may be, shall allow the other party to take possession of
such books and records.
(ii) Purchaser and Seller further agree, upon request, to use
their best efforts to obtain any certificate or other document from any
governmental authority or any other person or entity as may be necessary to
mitigate, reduce or eliminate any Tax that could be imposed (including, but not
limited to, with respect to the transactions contemplated hereby).
(iii) Purchaser and Seller further agree, upon request, to
provide the other party with all information that either party may be required
to report pursuant to Section 6043 of the Code and all Treasury Department
Regulations promulgated thereunder.
(e) Tax Contests. As of the Closing Date, Purchaser shall have the
------------
sole right and responsibility for conducting any audit, examination, proceeding
or litigation with respect to any Tax of XX0.xxx.
(f) Certain Taxes. All transfer, documentary, sales, use, stamp,
--------------
registration and other such Taxes and fees (including any penalties and
interest) incurred in connection with this Agreement, shall be paid by Seller
when due, and Seller will, at its own expense, file all
38
necessary Tax Returns and other documentation with respect to all such transfer,
documentary, sales, use, stamp, registration and other Taxes and fees, and, if
required by applicable law, Purchaser will, and will cause its affiliates to,
join in the execution of any such Tax Returns and other documentation.
(g) Indemnification. Seller shall indemnify, defend and hold XX0.xxx
---------------
harmless from and against any and all Taxes attributable to the business, assets
or operations of any other member of any consolidated, combined or unitary group
which XX0.xxx is required to pay in accordance with the provisions of Treas.
Reg. (S)1.1502-6 (or any similar provision of state, local, or foreign law).
10.7 Further Assurances.
------------------
From time to time after the Closing, (i) Seller will execute and
deliver, or cause its affiliates to execute and deliver, to Purchaser such
instruments of sale, transfer, conveyance, assignment and delivery, and such
consents, assurances, powers of attorney and other instruments as may be
reasonably requested by Purchaser or its counsel in order to vest in Purchaser
all right, title and interest of Seller in and to the Transferred Assets free
and clear of all Encumbrances other than Permitted Encumbrances and otherwise in
order to carry out the purpose and intent of this Agreement and (ii) Purchaser
will execute and deliver, or cause its affiliates to execute and deliver, to
Seller such instruments of assumption and other instruments as may be reasonably
requested by Seller or its counsel in order to vest in Purchaser all obligations
relating to the Assumed Liabilities and otherwise in order to carry out the
purposes and intent of this Agreement.
10.8 Notices.
-------
Any notices or other communications required or permitted hereunder or
otherwise in connection herewith shall be in writing and shall be deemed to have
been duly given when delivered in person or transmitted by facsimile
transmission or on receipt after dispatch by registered or certified mail,
postage prepaid, addressed, as follows:
If to Seller to:
IntelliQuest Information Group, Inc.
0000 X. Xxxxxxx xx Xxxxx Xxxxxxx
Xxxxx 000
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxxxx, President and CEO
39
With a required copy (which shall not constitute notice) to:
Xxxxxx & Xxxxxxx
000 Xxxxxxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxx, Esq.
If to Purchaser to:
Naviant Technology Solutions, Inc.
00 Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx Xxxxxx, Xxxxxxxxxxxx 00000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxx, President and CEO
With a required copy (which shall not constitute notice) to:
Xxxxxxx, Phleger & Xxxxxxxx LLP
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx, P.C.
or such other address as the person to whom notice is to be given has furnished
in writing to the other parties. A notice of change in address shall not be
deemed to have been given until received by the addressee.
10.9 Expenses.
--------
Each party hereto shall pay their own respective costs and expenses
incurred in connection with this Agreement, and the transactions contemplated
hereby (including without limitation all broker, investment banking, legal and
other professional fees) and, regardless of whether such transaction is
consummated or the Agreement is entered into by the parties. Without limiting
the generality of the foregoing, Seller shall pay all applicable sales, use,
transfer and documentary taxes arising out of the purchase and sale of the
Transferred Assets. The parties agree to cooperate to minimize the taxes arising
from the transactions contemplated by this Agreement, including where practical,
but not limited to, the electronic transmission of Intellectual Property so as
to limit the application of sales and use taxes.
10.10 Dispute Resolution.
------------------
The parties desire that any controversy or claim arising out of or
related to this Agreement, other than claims or controversies arising under
Section 6.7 (Competition; Non-Solicitation) or Article IX (Termination)
(collectively, the "Arbitral Disputes"), be resolved in an expeditious and
efficient manner exclusively in accordance with this dispute resolution
procedure. A dispute under this clause shall be initiated by delivering written
notice to the other
40
party briefly stating the nature of the dispute and requesting resolution.
Except as otherwise specified, each party shall bear its own costs and fees
relating to any dispute.
(a) Informal Resolution. The parties agree that before initiation
-------------------
of any legal or arbitration proceeding with respect to any issue arising out of
the transactions contemplated by the Agreement, they shall cause their
respective representatives to attempt to resolve in good faith all disputes
between the parties. The parties agree that they will cause, in the case of
Purchaser, Xxxxx X. Xxxxx or his successor-in-interest, and, in the case of
Seller, Xxxxx Xxxxxxxx or his successor-in-interest, to meet in person in
Austin, Texas, to attempt in good faith to resolve such dispute within fifteen
business days of notification of such dispute. In the event that the
representatives are unable to resolve such a dispute, the aggrieved party must
refer the dispute to mediation under paragraph (b).
(b) Mediation. In the event any dispute is not resolved by a
---------
meeting of the parties, the dispute shall be referred to non-binding mediation.
The mediation shall occur within 40 days of the meeting of the parties.
Mediation fees shall be split equally among the parties. The mediator shall be
selected by agreement of the parties or, in the event of no agreement, shall be
designated by Judicial Arbitration and Mediation Services ("JAMS"). The
mediation shall be attended by the parties' representatives designated in
paragraph (a) and, if desired, the parties' attorneys.
(c) Arbitration. In the event a dispute is not resolved by mediation
-----------
pursuant to Section (b), the aggrieved party shall refer any Arbitral Dispute to
binding arbitration. The aggrieved party shall be entitled to seek judicial
review of any non-Arbitral Disputes. The arbitration shall be governed by the
procedures set forth below. The arbitrator shall give written notice to the
parties of the arbitrator's determination, which shall be binding on the
parties. The parties agree to act in compliance with the arbitrator's
determination, and judgment upon the same may be entered by any court of
competent jurisdiction.
(i) Selection of Arbitrator. Within 30 days of referral of a
-----------------------
dispute to arbitration, a single arbitrator will be selected by agreement of the
parties or, in the event of no agreement, shall be designated by JAMS.
(ii) Discovery. The parties agree to submit discovery plans to
---------
the arbitrator within 15 days following the date that the arbitrator accepts his
appointment to this matter. The discovery plan will describe all discovery
contemplated. The arbitrator will schedule a meeting of counsel to occur within
15 days of his receipt of the discovery plans, at which time the arbitrator will
issue a written order scheduling dates for all depositions and completion dates
for all additional discovery. The written discovery plan may only be modified by
a written order from the arbitrator. The parties may request, in their discovery
plans, and the arbitrator shall be empowered to impose, limitations on the
nature and quantity of discovery to be conducted.
(iii) Procedure. The arbitration hearing shall take place in
---------
Austin, Texas within 90 days of the arbitrator's acceptance of his appointment.
The hearing is not to exceed two days. Introduction of evidence and testimony
at the hearing will be subject to the
41
Federal Rules of Civil Procedure. Each party is entitled to be heard, to present
material evidence and testimony, and to cross-examine witnesses appearing at the
hearing.
(iv) Limitation on Damages. The arbitrator may not award
---------------------
exemplary or punitive damages.
10.11 Severability.
------------
In the event that any one or more of the provisions or parts of a
provision contained in this Agreement shall for any reason be held to be
invalid, illegal or unenforceable in any respect in any jurisdiction, such
invalidity, illegality or unenforceability shall not affect any other provision
or part of a provision of this Agreement or any other jurisdiction, but this
Agreement shall be reformed and construed in any such jurisdiction as if such
invalid or illegal or unenforceable provision or part of a provision had never
been contained herein and such provision or part shall be reformed so that it
would be valid, legal and enforceable to the maximum extent permitted in such
jurisdiction.
10.12 Governing Law.
-------------
This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware applicable to contracts executed and performed
in such State, without giving effect to conflicts of laws principles.
10.13 Bulk Sales Laws.
---------------
The parties hereby waive compliance with the Bulk Sales Laws of any
state in which the Transferred Assets are located or in which operations
relating to the Purchased Business are conducted.
10.14 Counterparts.
------------
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
10.15 Headings; Interpretation; Disclosure Schedule.
---------------------------------------------
The descriptive headings of the several Articles and Sections of
this Agreement are inserted for convenience only and do not constitute a part of
this Agreement. References to Sections or Articles, unless otherwise indicated,
are references to Sections of this Agreement. The parities have participated
jointly in the negotiation and drafting of this Agreement. In the event an
ambiguity or question of intent or interpretation arises, this Agreement shall
be construed as if drafted jointly by the parties and no presumption or burden
of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any of the provisions of this Agreement. The word "including"
means including without limitation. Words (including defined terms) in the
singular shall be held to include the plural and vice versa and words of one
gender shall be held to include the other gender as the context requires. The
terms "hereof", "herein" and "herewith" and words of similar import shall,
unless otherwise stated, be construed
42
to refer to this Agreement as a whole (including all of the Schedules and
Exhibits hereto) and not to any particular provision of this Agreement unless
otherwise specified. It is understood and agreed that neither the specifications
of any dollar amount in this Agreement nor the inclusion of any specific item in
the Schedules or Exhibits is intended to imply that such amounts or higher or
lower amounts, or the items so included or other items, are or are not material,
and neither party shall use the fact of setting of such amounts or the fact of
the inclusion of such item in the Schedules or Exhibits in any dispute or
controversy between the parties as to whether any obligation, item or matter is
or is not material for purposes hereof.
10.16 Consent to Jurisdiction.
-----------------------
Each of the parties hereto hereby irrevocably and unconditionally
submits, for itself and its property, to the exclusive jurisdiction of any
Delaware State court, or Federal court of the United States of America, sitting
in Delaware, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement or the agreements
delivered in connection herewith or the transactions contemplated hereby or
thereby or for recognition or enforcement of any judgment relating thereto, and
each of the parties hereby irrevocably and unconditionally (i) agrees not to
commence any such action or proceeding except in such courts, (ii) agrees that
any claim in respect of any such action or proceeding may be heard and
determined in such Delaware State court or, to the extent permitted by law, in
such Federal court, (iii) waives, to the fullest extent it may legally and
effectively do so, any objection which it may now or hereafter have to the
laying of venue of any such action or proceeding in any such Delaware State or
Federal court, and (iv) waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or proceeding
in any such Delaware State or Federal court. Each of the parties hereto agrees
that a final judgment in any such action or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in Section 10.8. Nothing
in this Agreement will affect the right of any party to this Agreement to serve
process in any other manner permitted by law.
10.17 Waiver of Jury Trial.
--------------------
EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY
ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT
IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ANY OF THE
AGREEMENTS DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (i) NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE EITHER OF SUCH WAIVERS, (ii) IT UNDERSTANDS AND HAS CONSIDERED THE
IMPLICATIONS OF SUCH WAIVERS, (iii) IT MAKES SUCH WAIVERS VOLUNTARILY, AND (iv)
IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG
43
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 10.17.
10.18 Indemnification.
---------------
Seller shall indemnify, defend and hold Purchaser and its officers,
directors, employees and affiliates harmless from and against any and all
claims, actions, suits, proceedings, investigations, losses, costs, damages and
expenses, including reasonable attorneys' fees and expenses, incurred by any of
them arising out of or relating to approval by the stockholders of Seller of the
transactions contemplated by this Agreement.
[SIGNATURE PAGE FOLLOWS]
44
IN WITNESS WHEREOF, each of the parties hereto has caused this Asset
Purchase Agreement to be executed on its behalf by its duly authorized officer,
all as of the day and year first written above.
PURCHASER
---------
NAVIANT TECHNOLOGY SOLUTIONS, INC.
By:____________________________________
Xxxxx X. Xxxxx
President and Chief Executive Officer
SELLER
------
INTELLIQUEST INFORMATION GROUP, INC.
By:____________________________________
Xxxxx Xxxxxxxx
President and Chief Executive Officer
[SIGNATURE PAGE TO ASSET PURCHASE AGREEMENT]
DISCLOSURE SCHEDULES
EXHIBIT A
ASSIGNMENT AND XXXX OF SALE
EXHIBIT B
INTELLECTUAL PROPERTY ASSIGNMENT
EXHIBIT C
ESCROW AGREEMENT
EXHIBIT D
OFFICER'S CERTIFICATE
EXHIBIT E
EMPLOYMENT AGREEMENT
EXHIBIT F
[RESERVED]
EXHIBIT G
[RESERVED]
EXHIBIT H
ALLOCATION OF PURCHASE PRICE
EXHIBIT I
ASSUMPTION AGREEMENT
EXHIBIT J
[RESERVED]
EXHIBIT K
LICENSE AGREEMENT
EXHIBIT L
COOPERATION AGREEMENT
