EXHIBIT 10.2
75
STOCK PURCHASE AGREEMENT
AMONG
BARRA, INC.,
AND
THE SHAREHOLDERS OF
INNOSEARCH CORPORATION
May 23, 1997
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TABLE OF CONTENTS
1. SALE OF THE INNOSEARCH SHARES; AUTHORIZATION AND
ISSUANCE OF THE BARRA SHARES....................................... 86
1.1 Sale of the Innosearch Shares................................ 86
1.2 Authorization of the BARRA Shares............................ 87
2. CLOSING DATE; DELIVERY............................................. 87
2.1 Closing Date................................................. 87
2.2 Delivery..................................................... 87
3. COVENANTS OF THE PARTIES........................................... 87
3.1 Covenants of BARRA........................................... 87
(a) Reservation and Issuance of BARRA Common................. 87
(b) Government Approvals..................................... 87
(c) Notification of Breach of Representations,
Warranties and Covenants............................... 88
(d) Press Release............................................ 88
(e) Litigation Developments.................................. 88
(f) Employment............................................... 88
(g) Access to Properties, Books and Records.................. 88
3.2 Covenants of the Innosearch Shareholders..................... 89
(a) Stockholder Lists and Other Information.................. 89
(b) Transactions in BARRA Common............................. 89
(c) Government Approvals..................................... 90
(d) Capital Commitments and Expenditures..................... 90
(e) Notification of Breach of Representations, Warranties and
Covenants.............................................. 90
(f) Compensation............................................. 90
(g) Conduct of Business in the Ordinary Course............... 91
(h) Press Releases........................................... 91
(i) No Merger or Solicitation................................ 92
(j) Access to Properties, Books and Records.................. 93
(k) Employee Welfare Benefit Plans........................... 93
(l) Litigation Developments.................................. 93
(m) Employment............................................... 94
3.3 Covenants of the Parties..................................... 94
4. REPRESENTATIONS AND WARRANTIES OF THE INNOSEARCH SHAREHOLDERS...... 94
4.1 Corporate Status and Power to Enter Into Agreements.......... 94
4.2 Execution and Delivery of the Agreement...................... 95
4.3 Subsidiaries and Other Equity Interests...................... 95
4.4 Certificate, Bylaws, Books and Records....................... 95
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4.5 Compliance with Laws, Regulations and Decrees................ 95
4.6 Capitalization............................................... 96
4.7 Financial Statements......................................... 96
4.8 Government Regulation........................................ 97
4.9 Code of Ethics............................................... 98
4.10 Tax Returns................................................. 99
4.11 Material Adverse Change..................................... 99
4.12 No Undisclosed Liabilities.................................. 99
4.13 Properties and Leases....................................... 100
4.14 Patents, Copyrights, Trademarks............................. 101
4.15 Material Contracts.......................................... 102
4.16 Employment Contracts and Benefits........................... 102
4.17 Compliance With ERISA....................................... 104
4.18 Collective Bargaining and Employment Agreements............. 104
4.19 Compensation of Officers and Employees...................... 104
4.20 Legal Actions and Proceedings............................... 104
4.21 Retention of Broker or Consultant........................... 105
4.22 Insurance................................................... 105
4.23 Transactions with Affiliates................................ 105
4.24 Trading in BARRA Common..................................... 105
4.25 No Departing Employees...................................... 106
4.26 No Loss of Customers........................................ 106
4.27 Communications with Shareholders............................ 106
4.28 Accuracy of Representations and Warranties.................. 106
4.29 Proposed Business Combination............................... 107
4.30 Innosearch Balance Sheet.................................... 107
5. REPRESENTATIONS AND WARRANTIES OF BARRA............................ 107
5.1 Corporate Status and Power to Enter Into Agreements.......... 107
5.2 Certificate, Bylaws, Books and Records....................... 107
5.3 Properties................................................... 108
5.4 BARRA SEC Documents.......................................... 108
5.5 Material Adverse Change...................................... 108
5.6 Execution and Delivery of the Agreement...................... 109
5.7 Accuracy of Representations and Warranties................... 109
5.8 Capitalization............................................... 20
5.9 Duly Authorized Issuances.................................... 110
5.10 Retention of Broker or Consultant........................... 110
5.11 Compliance with Laws, Regulations and Decrees............... 110
6. INVESTMENT REPRESENTATION.......................................... 111
7. REGISTRATION RIGHTS................................................ 112
7.1 Definitions.................................................. 112
(a) "Exchange Act"........................................... 112
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(b) "Holder"................................................. 113
(c) "Register", "Registered" and "Registration".............. 113
(f) "Securities Act"......................................... 113
(g) "Selling Expenses"....................................... 113
7.2 BARRA Registration........................................... 114
(a) Notice of Registration................................... 114
7.3 Underwriting................................................. 114
7.4 Expenses of Registration..................................... 115
7.5 Furnish Information.......................................... 115
7.6 Indemnification.............................................. 115
7.7 "Market Stand-off" Agreement................................. 117
8. CONDITIONS TO THE OBLIGATIONS OF BARRA............................. 117
8.1 Representations and Warranties............................... 117
8.2 Compliance and Performance Under Agreement................... 117
8.3 Material Adverse Change...................................... 118
8.4 Shareholders' Certificate.................................... 118
8.5 No Injunctions or Restraints; Illegality..................... 118
8.6 Innosearch Board of Directors................................ 118
8.7 Government Approvals......................................... 118
8.8 Expenses..................................................... 119
8.9 Closing Documents............................................ 119
8.10 Consents.................................................... 119
8.11 GAT Transaction............................................. 119
8.12 Opinion of Counsel.......................................... 119
8.13 Third Party Actions......................................... 120
9. CONDITIONS TO THE OBLIGATIONS OF THE INNOSEARCH SHAREHOLDERS....... 120
9.1 Representations and Warranties............................... 120
9.2 Compliance and Performance Under Agreement................... 120
9.3 Material Adverse Change...................................... 120
9.4 Officers Certificate......................................... 121
9.5 Opinion of Counsel........................................... 121
9.6 Third Party Actions.......................................... 121
9.7 Closing Documents............................................ 121
9.8 No Injunctions or Restraints; Illegality..................... 121
9.9 GAT Transaction.............................................. 121
9.10 Government Approvals........................................ 121
10. EXPENSES........................................................... 122
11. SURVIVAL, INDEMNIFICATION AGAINST LOSS............................. 122
11.1 Survival.................................................... 122
11.2 Innosearch Shareholders' Indemnification.................... 122
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11.3 BARRA's Indemnification..................................... 123
11.4 Indemnification Procedures.................................. 123
11.5 Limitation on Indemnification Claims........................ 125
11.6 Liability Limited to Indemnification........................ 125
12. AMENDMENT; TERMINATION............................................. 125
12.1 Amendment................................................... 125
12.2 Termination................................................. 126
12.3 Notice...................................................... 126
12.4 Termination and Expenses.................................... 126
13. MISCELLANEOUS...................................................... 126
13.1 Notices..................................................... 126
13.2 Binding Agreement........................................... 128
13.3 Consent to Jurisdiction and Forum Selection................. 128
13.4 Governing Law............................................... 128
13.5 Attorneys' Fees............................................. 128
13.6 Entire Agreement; Severability.............................. 128
13.7 Counterparts................................................ 129
13.8 Waivers..................................................... 129
LIST OF EXHIBITS
EXHIBIT A------------------------------------- OPINION OF COUNSEL (INNOSEARCH)
EXHIBIT B------------------------------------------ OPINION OF COUNSEL (BARRA)
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INNOSEARCH
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT is made and entered into as of May 23,
1997 ("Agreement") by and among BARRA, INC., a California corporation
("BARRA"), Xxxxxx Xx, Xxxxx Xxxx, Yun-Xxxx Xx, Xxxx Xxxxxxx, Yamaichi
Securities Company, Ltd. ("Yamaichi), the stockholders of Innosearch
Corporation, a New York corporation ("Innosearch") (herein individually an
"Innosearch Shareholder" and collectively, the "Innosearch Shareholders").
WHEREAS, the Innosearch Shareholders currently own 870 shares of
common stock of Innosearch (individually, an "Innosearch Share" and in the
aggregate, the "Innosearch Shares");
WHEREAS BARRA, Global Advanced Technology Corporation, a Delaware
corporation, ("GAT") and the stockholders of GAT have entered into a stock
purchase agreement dated May 23, 1997, whereby BARRA shall acquire 100% of
the outstanding capital stock of GAT;
WHEREAS, BARRA wishes to purchase, and the Innosearch Shareholders
wish to sell to BARRA, the Innosearch Shares in accordance with the terms
of this Agreement;
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants set forth herein,
THE PARTIES HEREBY AGREE AS FOLLOWS:
15. SALE OF THE INNOSEARCH SHARES; AUTHORIZATION AND ISSUANCE OF THE BARRA
SHARES.
15.1 SALE OF THE INNOSEARCH SHARES. Subject to the terms and conditions
hereof, on the Closing Date, as defined in Section 2.1, the Innosearch
Shareholders will sell to BARRA and BARRA agrees to purchase from each of the
Innosearch Shareholders all of the Innosearch Shares, totaling an aggregate
of 870 Innosearch Shares, for a total consideration in cash ("Cash
Consideration") and fully paid and nonassessable shares of common stock of
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BARRA (the "BARRA Common" or the "BARRA Shares") allocated to each Innosearch
Shareholder as set forth on Schedule A attached hereto. The BARRA Common or
BARRA Shares along with the Cash Consideration, as set forth above, is
sometimes referred to as the "Purchase Price".
15.2 AUTHORIZATION OF THE BARRA SHARES. On or prior to the Closing
Date, BARRA will have taken all necessary corporate action for the purpose of
authorizing the issuance and sale of the BARRA Common to the Innosearch
Shareholders.
16. CLOSING DATE; DELIVERY.
16.1 CLOSING DATE. The closing of the purchase and sale of the
Innosearch Shares hereunder (the "Closing") shall be held at the offices of
Xxxxxx & Xxxxx LLP, Xxx Xxxxxxxx Xxxxx, Xxxxx 000, Xxx Xxxxxxxxx, Xxxxxxxxxx
00000 on or before August 20, 1997 or at such other time and place to which
the parties hereto may agree in writing (the "Closing Date").
16.2 DELIVERY. At the Closing, each Innosearch Shareholder will deliver
to BARRA certificates representing the Innosearch Shares to be purchased from
such Innosearch Shareholder against payment of the Purchase Price therefore
by delivery to (a) each Innosearch Shareholder (other than GAT) of a check
representing the Cash Consideration allocated to such Innosearch Shareholder
on Schedule A, and (b) the retention by BARRA of the Cash Consideration and
BARRA Common allocated to GAT on Schedule A.
17. COVENANTS OF THE PARTIES.
17.1 COVENANTS OF BARRA. Unless otherwise expressly indicated below and
unless the Agreement is not earlier terminated pursuant to Section 12, from
the date of this Agreement to the Closing Date, BARRA hereby covenants as
follows:
(a) RESERVATION AND ISSUANCE OF BARRA COMMON. BARRA shall reserve
and make available for issuance in accordance with the terms of this
Agreement a number of the BARRA Shares equal to the Stock Consideration.
(b) GOVERNMENT APPROVALS. BARRA, with the cooperation of
Innosearch, shall use reasonable efforts in good faith to take or cause to be
taken as promptly as practicable all such steps as shall be necessary to
obtain all consents and approvals of government agencies as are required by
law or otherwise (the "Government Approvals") and shall do any and all acts
reasonably necessary or appropriate in order to cause the stock purchase to
be consummated on the terms provided in this Agreement as promptly as
practicable.
(c) NOTIFICATION OF BREACH OF REPRESENTATIONS, WARRANTIES AND
COVENANTS. BARRA shall promptly give written notice to the Innosearch
Shareholders upon becoming
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aware of the occurrence or impending or threatened occurrence of any event
which would cause or constitute a breach of any of the representations,
warranties or covenants of BARRA contained or referred to in this Agreement
and shall use commercially reasonable efforts to prevent the same or remedy
the same promptly.
(d) PRESS RELEASE. BARRA shall not issue any press release or
written statement for general circulation to the public relating to the stock
purchase or this Agreement unless previously provided to Innosearch for
review and approval (which approval will not be unreasonably withheld or
delayed) and shall cooperate with Innosearch in the development and
distribution of all news releases and other public information disclosures
with respect to this Agreement or the purchase, provided that BARRA may,
without the consent of Innosearch, make any disclosure with regard to this
Agreement or the purchase that it determines is required under any applicable
law or regulation, provided that, if practicable, BARRA shall provide to
Innosearch an opportunity to review and comment on the content of any such
disclosure prior to such disclosure being publicly distributed.
(e) LITIGATION DEVELOPMENTS. BARRA agrees to promptly advise the
Innosearch Shareholders with respect to any and all material legal actions or
other material proceedings or investigations against BARRA relating to this
transaction and to promptly advise the Innosearch Shareholders with respect
to any significant developments arising in connection with said actions,
proceedings or investigations.
(f) EMPLOYMENT. BARRA shall not directly or indirectly, solicit,
induce or recruit any of the officers or employees of Innosearch to leave
their employment with Innosearch without obtaining the prior written consent
of Innosearch.
(g) ACCESS TO PROPERTIES, BOOKS AND RECORDS. Prior to the Closing
Date, BARRA shall give the Innosearch Shareholders and their counsel and
accountants full access, during normal business hours and upon reasonable
requests, to all of its properties, books, contracts, commitments and records
including, but not limited to, the corporate, financial and operational
records, reports, instructions, procedures, tax returns and filings, tax
settlement letters, material contracts or commitments, regulatory
examinations and correspondence and shall allow the Innosearch Shareholders
to make copies of such materials (to the extent not legally prohibited) and
shall furnish the Innosearch Shareholders with all such information
concerning its affairs as the Innosearch Shareholders may reasonably request.
BARRA shall also cause Deloitte & Touch LLP ("DT") to make available to the
Innosearch Shareholders, their accountants, counsel and other agents, to the
extent reasonably requested in connection with such review, DT work papers
and documentation relating to its work papers and its audits of the books and
records of BARRA. Documents requested pursuant to this Section 3.1(g) that
are protected pursuant to confidentiality agreements or are subject to
attorney-client privilege ("BARRA Confidential Documents") shall not be
subject to this Section 3.1(g). Notwithstanding the
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foregoing, BARRA shall disclose to the Innosearch Shareholders the general
subject matter of the BARRA Confidential Documents requested pursuant to this
Section 3.1(g), and any matter therein which would have a material adverse
effect on this transaction. Client files that are protected pursuant to
confidentiality agreements signed with BARRA, pursuant to fiduciary
obligations to maintain confidentiality under the Advisers Act (as defined in
Section 4.8(a) or are subject to attorney-client privilege, and that are
requested pursuant to this Section 3.1(g), shall not be subject to this
Section 3.1(g) ("BARRA Confidential Files"). Notwithstanding the foregoing,
BARRA shall disclose to the Innosearch Shareholders on attached Schedule
3.1(g), the general subject matter of the BARRA Confidential Files requested
pursuant to this Section 3.1(g), and any matter therein which would have a
material adverse effect on this transaction.
17.2 COVENANTS OF THE INNOSEARCH SHAREHOLDERS. Unless otherwise
expressly indicated below and unless this Agreement is earlier terminated
pursuant to Section 12, from the date of this Agreement to the Closing Date,
the Innosearch Shareholders, as applicable, hereby covenant to BARRA as
follows:
(a) STOCKHOLDER LISTS AND OTHER INFORMATION. Innosearch shall
from time to time make available to BARRA, upon request, a list of their
stockholders and their addresses, a list showing all transfers of the
Innosearch Common Stock and/or Common Stock of Innosearch and such other
information as BARRA shall reasonably request regarding both the ownership
and prior transfers of the Innosearch Common Stock and Common Stock of
Innosearch.
(b) TRANSACTIONS IN BARRA COMMON. Innosearch and each Innosearch
Shareholder hereby agrees not to, directly or indirectly, buy or sell, or
otherwise effect any trade in, any shares of BARRA Common, or any security
derivative of the BARRA Common, from the date hereof through and including
the Closing Date unless the Agreement is earlier terminated. Neither
Innosearch nor any Innosearch Shareholder (other than Yamaichi) owns
beneficially any shares of BARRA Common.
(c) GOVERNMENT APPROVALS. Innosearch and the Innosearch
Shareholders shall cooperate in good faith and in all reasonable respects
with BARRA in its undertaking pursuant to Section 3.1(c) to obtain the
Government Approvals and Innosearch and the Innosearch Shareholders further
agree to take such actions in good faith as may be reasonably requested by
BARRA to cause the purchase to be consummated on the terms provided in this
Agreement as promptly as is practicable.
(d) CAPITAL COMMITMENTS AND EXPENDITURES. After the execution of
this Agreement, no new capital commitments in excess of $25,000 individually
or $50,000 in the aggregate shall be entered into, and no capital
expenditures in excess of $25,000 individually or $50,000 in the aggregate
shall be made by Innosearch without the prior written approval of BARRA.
Innosearch shall not enter into any acquisitions or leases of
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real property, including both new leases and lease extensions without the
prior written approval of BARRA.
(e) NOTIFICATION OF BREACH OF REPRESENTATIONS, WARRANTIES AND
COVENANTS. Innosearch and/or the Innosearch Shareholders shall promptly give
written notice to BARRA upon becoming aware of the occurrence or impending or
threatened occurrence of any event which would cause or constitute a breach
of any of the representations, warranties or covenants of Innosearch and/or
the Innosearch Shareholders contained or referred to in this Agreement and
shall use commercially reasonable efforts to prevent the same or remedy the
same promptly.
(f) COMPENSATION. Innosearch shall not make or approve any
increase in the compensation payable or to become payable by Innosearch to
any of its directors, officers, employees or agents with annual salaries in
excess of $30,000 at the date hereof and no increases in compensation shall
exceed $25,000 in the aggregate (including but not limited to compensation
through any profit sharing, pension, retirement, severance, incentive or
other employee benefit program or arrangement), nor shall any bonus payment
or any agreement or commitment to make a bonus payment be made (except with
BARRA's prior written approval), nor shall any material amendment to an
existing employee benefit plan or arrangement or any new employee benefit
plan or arrangement be adopted, nor shall any stock option, warrant or other
right to acquire capital stock be granted, or employment agreement (other
than any such employment agreement that may arise by operation of law upon
the hiring of any new employee) or consulting agreement be entered into by
Innosearch with any such directors, officers, employees or agents unless
BARRA has given its prior written consent. Without the prior written consent
of BARRA, Innosearch shall not hire any new employees. Innosearch has
previously delivered to BARRA a comprehensive list of employees as of the
date hereof (the "Employee List"), setting forth in detail the compensation
payable to each and all of Innosearch's directors, officers, employees and
agents.
(g) CONDUCT OF BUSINESS IN THE ORDINARY COURSE. Innosearch shall
conduct their businesses in the ordinary course as heretofore conducted. For
purposes of this Agreement the "Ordinary Course of Business" shall consist of
the marketing and sale of software products and related data and consulting
services and other business presently conducted by Innosearch. Prior to the
Closing Date Innosearch shall use its best efforts to maintain satisfactory
relationships with licensors, suppliers, distributors and customers, all in
accordance with its Ordinary Course of Business. Prior to the Closing Date,
except as listed on Schedule 3.2(h), Innosearch shall not, without the prior
written consent of BARRA:
(1) amend its Certificate of Incorporation or Bylaws;
(2) authorize for issuance, issue, deliver or sell any
additional Innosearch Shares of its capital stock of any class, or securities
convertible into Innosearch
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Shares of such stock, or issue or grant any rights, options or other
commitments for the issuance of Innosearch Shares of such stock or such
convertible securities;
(3) split, combine or reclassify any Innosearch Shares of its
capital stock or declare, set aside or pay any dividend (whether in cash,
stock or property) in respect to its capital stock or redeem or otherwise
acquire any of its capital stock;
(4) dispose of or acquire any material properties or assets
except in the Ordinary Course of Business;
(5) engage in any activities or transactions that are outside
the Ordinary Course of Business;
(6) incur any indebtedness for borrowed money.
(h) PRESS RELEASES. Neither Innosearch nor the Innosearch
Shareholders shall not issue any press release or written statement for
general circulation relating to this Agreement or the purchase unless
previously provided to BARRA for review and written approval (which shall not
be unreasonably withheld) and shall cooperate with BARRA in the development
and distribution of all news releases and other public information
disclosures with respect to this Agreement or the purchase. Neither
Innosearch nor the Innosearch Shareholders may, without the consent of BARRA,
make any disclosure with regard to this Agreement or the purchase that is
required under any applicable law or regulation, provided that, both
Innosearch and the Innosearch Shareholders shall provide to BARRA an
opportunity to review and comment on the content of any such disclosure prior
to such disclosure being publicly distributed.
(i) NO MERGER OR SOLICITATION.
(i) Without the prior written consent of BARRA, neither
Innosearch nor the Innosearch Shareholders shall effect or agree to effect
any Business Combination, acquire or agree to acquire any of the capital
stock of Innosearch, nor shall Innosearch acquire or agree to acquire the
capital stock or assets (except in the Ordinary Course of Business) of any
other entity, or commence any proceedings for winding up and dissolution
affecting any of them. As used in this Agreement, "Business Combination"
shall mean any tender or exchange offer, proposal for a merger,
consolidation, acquisition of assets or other takeover proposal involving any
party hereto (except as explicitly contemplated in this Agreement) or any
offer or proposal to acquire in any manner a five percent (5%) or greater
interest in, or a substantial portion of any party hereto other than
transactions contemplated hereunder.
(ii) Neither Innosearch, any Innosearch Shareholder, nor any
officer, director or affiliate of Innosearch, nor any investment banker,
attorney, accountant or other agent, advisor or representative retained by
Innosearch or the Innosearch
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Shareholders shall (A) solicit or encourage, directly or indirectly, any
inquiries, discussions or proposals for, continue, propose or enter into
discussions or negotiations looking toward, or enter into any agreement or
understanding providing for, any Business Combination; or (B) in connection
with a potential Business Combination or otherwise than in the Ordinary
Course of Business disclose, directly or indirectly, any nonpublic
information to any corporation, partnership, person or other entity or group
concerning the business and properties of Innosearch or afford any such party
access to the properties, books or records of Innosearch or otherwise assist
or encourage any such party in connection with the foregoing, or (C) furnish
or cause to be furnished any information concerning the business, financial
conditions, operations, properties or prospects of Innosearch to another
person, having any actual or prospective role with respect to any such
transaction. The foregoing will be subject at all times to the right and
ability of the directors and officers of Innosearch to satisfy their
fiduciary obligations.
(iii) Innosearch shall notify BARRA of the details of any
indication of interest of any person, corporation, firm, association or group
to acquire by any means a five percent (5%) or greater interest in, or a
substantial portion of Innosearch or engage in any Business Combination with
Innosearch within two business days of any such indication of interest.
(j) ACCESS TO PROPERTIES, BOOKS AND RECORDS. Prior to the Closing
Date, Innosearch shall give BARRA and its counsel and accountants full
access, during normal business hours and upon reasonable request, to all of
its properties, books, contracts, commitments and records including, but not
limited to, the corporate, financial and operational records, papers,
reports, instructions, procedures, tax returns and filings, tax settlement
letters, material contracts or commitments, regulatory examinations and
correspondence and shall allow BARRA to make copies of such materials (to the
extent not legally prohibited) and shall furnish BARRA with all such
information concerning its affairs as BARRA may reasonably request.
Innosearch shall also cause Xxxxxxx & Company ("Xxxxxxx") to make available
to BARRA, its accountants, counsel and other agents, to the extent reasonably
requested in connection with such review, Xxxxxxx work papers and
documentation relating to its work papers and its audits and reviews of the
books and records of Innosearch. Documents requested pursuant to this 3.2(j)
that are protected pursuant to confidentiality agreements or are subject to
attorney-client privilege ("Innosearch Confidential Documents") shall not be
subject to this Section 3.2. Notwithstanding the foregoing, Innosearch shall
disclose to BARRA the general subject matter of the Innosearch Confidential
Documents, and any matter therein which would have a material adverse effect
on this transaction or on the business or financial performance of Innosearch
on Schedule 3.2(j). Client files that are protected pursuant to
confidentiality agreements signed with Innosearch, pursuant to fiduciary
obligations to maintain confidentiality under the Advisers Act (as defined in
Section 4.8(a) or are subject to attorney-client privilege shall not be
subject to this Section 3.2(j) ("Innosearch Confidential Files").
Notwithstanding the foregoing, the Innosearch Shareholders shall
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disclose to BARRA on attached Schedule 3.2(j) the general subject matter of
the Innosearch Confidential Files and any matter therein which would have a
material adverse effect on this transaction.
(k) EMPLOYEE WELFARE BENEFIT PLANS. Innosearch agrees that
Innosearch's employee welfare benefit plans, as that term is used in Section
3(k) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), may be continued or merged into BARRA's welfare benefit plans, on
or after the Closing Date, as determined by BARRA in its sole discretion,
subject to compliance with applicable law and the terms of the plans.
Attached hereto as Schedule 3.2(k) of the Innosearch Disclosure Statement is
a list of all of Innosearch's employee welfare benefit plans.
(l) LITIGATION DEVELOPMENTS. Innosearch agrees to promptly advise
BARRA with respect to any and all material legal actions or other material
proceedings or investigations against Innosearch or such subsidiaries and to
promptly advise BARRA with respect to any significant developments arising in
connection with said actions, proceedings or investigations.
(m) EMPLOYMENT. Neither Innosearch nor the Innosearch
Shareholders, shall solicit any of the officers or directors of BARRA or its
subsidiaries to leave their employment with BARRA or its subsidiaries,
without obtaining the prior written consent of BARRA.
17.3 COVENANTS OF THE PARTIES. Each party shall use its best efforts to
cause its officers, directors, employees, auditors, agents, and attorneys to
cooperate with the other in the reasonable requests for information by the
other parties hereto. In addition, the parties acknowledge and confirm the
terms of a confidentiality letter dated December 26, 1996 between BARRA and
the Updata Group, Inc., and a confidentiality letter dated February 4, 1997
between BARRA and GAT which provisions shall remain in effect in accordance
with their terms.
18. REPRESENTATIONS AND WARRANTIES OF THE INNOSEARCH SHAREHOLDERS.
Each of the Innosearch Shareholders jointly and severally represents and
warrants to BARRA that except as disclosed to BARRA in writing on a separate
disclosure statement attached hereto (the "Innosearch Disclosure Statement")
which Innosearch Disclosure Statement shall be deemed to be representations
and warranties to the appropriately cross-referenced sections as if made
hereunder:
18.1 CORPORATE STATUS AND POWER TO ENTER INTO AGREEMENTS. Innosearch
(i) is a corporation duly organized, validly existing and in good standing
under the laws of its respective jurisdiction of organization, (ii) is not
subject to any order (formal or informal) or agreement, of the Securities and
Exchange Commission ("SEC") or any other regulatory authority having
jurisdiction over its business or any of its assets or properties, and (iii)
is
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in full compliance with any agreements, understandings or orders of the SEC
or any other regulatory authority having jurisdiction over its business or
any of its assets or properties. Innosearch is duly qualified to do business
as a foreign corporation under the laws of each jurisdiction in which the
conduct of its business requires such qualification or license, and where
failure to be so qualified would have a material adverse effect on it, and
each such jurisdiction is set forth on Schedule 4.1 of the Innosearch
Disclosure Statement.
18.2 EXECUTION AND DELIVERY OF THE AGREEMENT.
(a) The execution and delivery by the Innosearch Shareholders of
this Agreement and the consummation of the transactions described herein (A)
do not violate any provision of the Certificate of Incorporation or Bylaws of
Innosearch, any provision of federal or state law or any governmental rule or
regulation (assuming (1) receipt of the Government Approvals, (2) receipt of
appropriate permits or approvals under applicable federal and state
securities laws, and (3) accuracy of the representations of BARRA set forth
herein), and do not require any consent of any person under, conflict with or
result in a breach of, or accelerate the performance required by any of the
terms of any material debt instrument, lease, license, covenant, agreement or
understanding to which Innosearch is a party or by which it is bound or any
order, ruling, decree, judgment, arbitration award or stipulation to which
Innosearch is subject, or constitute a material default thereunder or result
in the creation of any lien, claim, security interest, encumbrance, charge,
restriction or similar right of any third party upon any of the properties or
assets of Innosearch.
(b) Each Innosearch Shareholder has now, and will have at the
Closing Date, all requisite legal and (if applicable) corporate, trust or
partnership power to enter into this Agreement, to receive the BARRA Shares
and/or cash in exchange for Innosearch Shares hereunder and to perform its
obligations under the terms of this Agreement.
(c) This Agreement when executed and delivered by each Innosearch
Shareholder will constitute a valid and legally binding obligation of such
Innosearch Shareholder, enforceable in accordance with its terms, except as
enforcement may be limited by applicable bankruptcy laws or other similar
laws affecting creditors' rights generally, and except that the availability
of equitable remedies may be limited.
18.3 SUBSIDIARIES AND OTHER EQUITY INTERESTS. Innosearch does not own,
directly or indirectly, any interest in any other corporation, partnership,
association, joint venture or other business entity.
18.4 CERTIFICATE, BYLAWS, BOOKS AND RECORDS. The copies of the
Certificate of Incorporation and Bylaws of Innosearch to be delivered to
BARRA prior to the date hereof are complete and accurate copies thereof as in
effect on the date hereof. The minute books of Innosearch made available to
BARRA contain an accurate record of all resolutions of the Board of Directors
(and committees thereof) and Stockholders of Innosearch. The Certificate of
Incorporation and Bylaws of Innosearch and all amendments thereto have
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been duly approved by all requisite corporate action and by the appropriate
regulatory authority to the extent required by law and each Certificate of
Incorporation has been duly filed with all appropriate governmental agencies.
18.5 COMPLIANCE WITH LAWS, REGULATIONS AND DECREES. Innosearch (i) has
the corporate power to own or lease its properties and to conduct its
business as currently conducted, (ii) has complied with, and is not in
default of any laws, regulations, ordinances, orders or decrees applicable to
the conduct of its business and the ownership of its properties, other than
where such noncompliance or default is not likely to result in a material
limitation on the conduct of its business or is not likely to otherwise have
a material adverse effect on Innosearch (iii) has not failed to file with the
proper federal, state, local or other authorities any material report or
other document required to be so filed, (iv) has all material approvals,
authorizations, consents, licenses, clearances and orders of, and has
currently effective all registrations with, all governmental and regulatory
authorities which are necessary to the business and operations of Innosearch
as now being conducted, and (v) has received no notification, formally or
informally, from any agency or department of any federal, state or local
government or any regulatory agency or the staff thereof (A) asserting that
Innosearch is not in material compliance with any of the statutes,
regulations or ordinances which such government or regulatory authority
enforces, or (B) threatening to revoke any licenses, franchise, permit or
governmental authorization of Innosearch.
18.6 CAPITALIZATION. The authorized capital stock of Innosearch
consists of ten thousand (10,000) shares of Innosearch Common Stock, ten
cents ($.10) par value per share, of which eight hundred seventy (870) shares
are duly authorized, validly existing, fully paid and nonassessable and
currently outstanding. Such stock has been issued in compliance with all
applicable registration or qualification provisions of state and federal
securities laws. No other securities of Innosearch are outstanding. There
are no outstanding (i) options, agreements, calls or commitments of any
character which would obligate Innosearch to issue, sell, pledge, assign or
otherwise encumber or dispose of, or to purchase, redeem or otherwise
acquire, any Innosearch Common Stock or any other equity security of
Innosearch, or (ii) warrants or options relating to, rights to acquire, or
debt or equity securities convertible into, shares of Innosearch Common Stock
or any other equity security of Innosearch. Attached hereto on Schedule 4.6
of the Innosearch Disclosure Statement is a list as of the date of this
Agreement of all stockholders of Innosearch and their respective number of
shares and percentage of ownership in Innosearch.
18.7 FINANCIAL STATEMENTS.
(a) Innosearch has delivered to BARRA true and correct copies of
consolidated statements of income, changes in stockholders' equity and
statements of cash flows for the fiscal years ended March 31, 1996, 1995 and
1994, and consolidated balance sheets at March 31, 1996, 1995 and 1994. Such
consolidated financial statements have been
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audited by Xxxxxxx & Company as independent public accountants for Innosearch
during the relevant periods, and include or shall include an opinion of such
accounting firm to the effect that such financial statements have been
prepared in accordance with generally accepted accounting principles applied
on a consistent basis during the periods involved ("GAAP") and present
fairly, in all material respects, the consolidated financial position,
results of operations and cash flows of Innosearch at the dates indicated and
for the periods then ending. The opinion of such accounting firm does not
and shall not contain any qualifications. Such consolidated financial
statements for the fiscal years ended March 31, 1994, 1995 and 1996 have been
reviewed by Xxxxxxx & Company and have been prepared in accordance with GAAP
and present fairly, in all material respects, the consolidated financial
position, results of operation and cash flows of Innosearch at the dates
indicated and for the periods then ending.
(b) Innosearch has delivered to BARRA true and correct copies of
unaudited consolidated statements of income, for the one-month periods from
April 30, 1996 through December 31, 1996 and unaudited consolidated balance
sheet at December 31, 1996. From the date hereof through the Closing Date,
Innosearch will continue to prepare unaudited consolidated financial
statements on a monthly basis and will deliver the same to BARRA no later
than 30 days after the end of each month. All such unaudited monthly
consolidated financial statements have been prepared in accordance with GAAP
and present fairly, in all material respects, the consolidated financial
position, results of operation and cash flows of Innosearch at the dates
indicated and for the periods then ending subject to normal year-end
adjustments, and the absence of certain notes thereto none of which will be
material.
(c) Innosearch has delivered or shall deliver to BARRA true and
complete copies of Innosearch's communications which were sent jointly to
shareholders during the last three years.
18.8 GOVERNMENT REGULATION.
(a) Innosearch is not registered as an investment adviser under
the Investment Advisers Act of 1940 (the "Advisers Act"), is not required to
so register, and has obtained a No-Action Letter from the Securities and
Exchange Commission, dated August 13, 1985, concerning its failure to so
register, a copy of which is attached hereto as Schedule 4.8(a)A. Innosearch
has not registered as an investment adviser in any states and is in
compliance with all state laws requiring registration, licensing or
qualification as an investment adviser through available exemptions thereto.
Innosearch has filed all reports required to be filed by it under the
Exchange Act (including Sections 13(d), (f) and (g) thereof) and rules
promulgated thereunder and all applicable state laws and regulations. All
filings required to be made by Innosearch as described in this Section 4.8
are hereafter referred to as the "Innosearch SEC Documents." Attached hereto
as Schedule 4.8(a)B of the Innosearch Disclosure Statement is a schedule
which identifies the examination and/or
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certification qualifications of each adviser representative of Innosearch.
The Innosearch SEC Documents comply in all material respects with the
applicable requirements of the 1940 Acts, and none of the Innosearch SEC
Documents contains any untrue statement of a material fact or omits to state
a material fact required to be stated therein or necessary in order to make
the statements made therein, in light of the circumstances under which they
were made, not misleading except to the extent corrected by a subsequently
filed Innosearch SEC Document. To the extent financial statements are
required in the Innosearch SEC Documents, such financial statements of
Innosearch included in the Innosearch SEC Documents comply as to form in all
material respects with applicable accounting requirements and with the
published rules and regulations of the SEC with respect thereto, have been
prepared in accordance with GAAP (except as may be indicated in the notes
thereto or, in the case of unaudited statements, as permitted by the rules
and regulations of the SEC) and fairly present the financial positions of
Innosearch as at the dates thereof and the consolidated results of their
operations and changes in financial position for the periods then ended
(subject in the case of unaudited statements, to normal recurring audit
adjustments).
(b) Innosearch is not an "investment company" within the meaning
of the Investment Company Act of 1940 (the "Company Act"), which is required
to be registered under the Company Act in order to engage in the transactions
described in Section 7 of that Act. Innosearch is not a "broker" or "dealer"
within the meaning of the Exchange Act. Copies of all inspection reports or
similar documents furnished to Innosearch by the SEC or state regulatory
authorities since January 1, 1993, are listed on Schedule 4.8(b) of the
Innosearch Disclosure Statement and copies thereof have been provided to
BARRA. Innosearch is not required to disclose any information to clients
under Rule 206(4)-4 promulgated under the Advisers Act.
(c) Except with respect to the entities listed on Schedule
4.8(c)(A) of the Innosearch Disclosure Statement attached hereto (each a
"Fund" and collectively the "Funds"), Innosearch does not act as investment
adviser or subadviser to any "investment company," as defined in the Company
Act, which is registered under such Act. Innosearch has a written investment
advisory agreement with each Fund pursuant to which Innosearch serves as
investment adviser to each Fund and has delivered to BARRA true and complete
copies of such agreements; attached hereto as Schedule 4.8(c)(B) of the
Innosearch Disclosure Statement is a list of all such agreements. Each such
agreement is in full force and effect, Innosearch is not in default
thereunder and to the best knowledge of Innosearch, no Fund that is a party
thereto is in default thereunder.
(d) Neither Innosearch nor any other "interested person" of
Innosearch as such term is defined in the Advisers Act, receives or is
entitled to receive any compensation directly or indirectly (a) from any
person in connection with the purchase or sale of securities or other
property to, from or on behalf of any of the Funds, other than bona fide
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ordinary compensation as principal underwriter for the Funds or (b) from the
Funds or its Stockholders for other than bona fide investment advisory
services, or other services.
18.9 CODE OF ETHICS. Innosearch has adopted a formal code of ethics, a
true, complete and accurate copy of which has been provided to BARRA. The
policies of Innosearch with respect to avoiding conflicts of interest are as
set forth in it's Form ADV, as amended, which have been delivered to BARRA.
There have been no material instances of non-compliance with such policies
since their adoption, except as listed on the Innosearch Disclosure Statement.
18.10 TAX RETURNS. Innosearch has timely filed all federal, state,
county, local and foreign tax returns required to be filed by it, including
without limitation, estimated tax, use tax, excise tax, real property and
personal property tax reports and returns, employer's withholding tax
returns, other withholding tax returns and Federal Unemployment Tax Returns,
and all other reports or other information required or requested to be filed
by it, and each such return, report or other information was, when filed,
complete and accurate in all material respects. Innosearch has paid all
taxes, fees and other governmental charges, including any interest and
penalties thereon, when they have become due and payable, except those that
are being contested in good faith, which contested matters are identified and
described on Schedule 4.10 of the Innosearch Disclosure Statement attached
hereto. Innosearch has not given any currently effective waivers extending
the statutory period of limitation applicable to any tax return required to
be filed by it for any period. There are no claims pending against
Innosearch for any alleged deficiency in the payment of any taxes, and no
pending or threatened audits, investigations or claims for unpaid taxes or
relating to any liability in respect of any taxes. Innosearch has delivered
to BARRA all of its and Innosearch's tax returns with respect to taxes
payable to the United States of America and the State of New York for fiscal
years ended March 31, 1996, 1995, 1994, 1993 and 1992.
18.11 MATERIAL ADVERSE CHANGE. Since December 31, 1996, there has been
(i) no adverse change which is material to the business, assets, licenses,
permits, franchises, results of operations or financial condition of
Innosearch (whether or not in the ordinary course of business), (ii) no
change in any of the assets, licenses, permits or franchises of Innosearch or
that has had or to the Innosearch Shareholder's knowledge can reasonably be
expected to have a material adverse effect on any of the items listed in
Section 4.8 above, (iii) no damage, destruction or other casualty loss
(whether or not covered by insurance) that has had or can reasonably be
expected to have a material adverse effect on any of the items listed in
Section 4.8 above, (iv) no amendment, modification, or termination of any
existing, or entering into of any new, contract, agreement, plan lease,
license, permit or franchise that is material to the business, financial
condition, assets, liabilities or operations of Innosearch, except in the
Ordinary Course of Business; (v) no disposition by Innosearch of one or more
assets that, individually or in the aggregate, are material to Innosearch
except sales of assets in the Ordinary Course of Business.
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18.12 NO UNDISCLOSED LIABILITIES. Except for items for which reserves
have been established in the audited consolidated balance sheets of
Innosearch as of March 31, 1996, and listed on Schedule 4.12 of the
Innosearch Disclosure Statement attached hereto, since such date Innosearch
has not incurred or discharged, and is not legally obligated with respect to,
any indebtedness, liability (including, without limitation, a liability
arising out of an indemnification, guarantee, hold harmless or similar
arrangement) or obligation (accrued or contingent, whether due or to become
due, and whether or not subordinated to the claims of its general creditors),
other than as a result of operations in the Ordinary Course of Business.
Innosearch is not in default under any outstanding debt obligation. No
agreement pursuant to which any assets have been or will be sold by
Innosearch entitles the buyer of such assets, unless there is material breach
of a representation or covenant by Innosearch, to cause Innosearch to
repurchase such asset or to pursue any other form of recourse against
Innosearch. Innosearch has not made nor shall make any representations or
covenants in any such agreement that contained or shall contain any untrue
statement of a material fact or omitted or shall omit to state a material
fact necessary in order to make the statements contained therein, in light of
the circumstances under which such representations and/or covenants were made
or shall be made, not misleading. No cash, stock or other dividend or any
other distribution with respect to the stock of Innosearch has been declared,
set aside or paid, nor have any Innosearch Shares of the stock of Innosearch
been purchased, redeemed or otherwise acquired, directly or indirectly, by
Innosearch since March 31, 1996.
18.13 PROPERTIES AND LEASES.
(a) Innosearch has good and marketable title, free and clear of
all liens and encumbrances and the right of possession, subject to existing
leaseholds, to all real properties and good title to all other tangible
property and assets, reflected in the Innosearch consolidated balance sheet
as of March 31, 1996 (except property held as lessee under leases entered
into since March 31, 1996 and as set forth on Schedule 4.13(a) of the
Innosearch Disclosure Statement attached hereto and except personal property
sold or otherwise disposed of since March 31, 1996 in the Ordinary Course of
Business). All tangible properties of Innosearch conform in all material
respects with all applicable ordinances, regulations and zoning laws. All
material tangible properties of Innosearch are in a good state of maintenance
and repair and are adequate for the current business of Innosearch. No
properties of Innosearch, and no properties in which they hold a collateral
or contingent interest or purchase option, are the subject of any pending or
threatened investigation, claim or proceeding relating to the use, storage or
disposal on such property of or contamination of such property by any toxic
or hazardous waste material or substance. Innosearch does not own, possess
or have a collateral or contingent interest or purchase option in any
properties or other assets which contain or have located within or thereon
any hazardous or toxic waste material or substance unless the location of
such hazardous or toxic waste material or other substance or its use thereon
conforms in all material respects with all federal, state and local laws,
rules, regulations or other provisions
94
regulating the discharge of materials into the environment. As to any asset
not owned or leased by Innosearch, Innosearch has not controlled, directed or
participated in the operation or management of any such assets or any
facilities or enterprise conducted thereon, such that it has become an owner
or operator of such asset under applicable environmental laws.
(b) All properties held by Innosearch under leases are held under
valid, binding and enforceable leases, assuming such leases have been duly
authorized by all necessary corporate action on the part of the other parties
to such leases, with such exceptions as are not material and do not interfere
with the conduct of the business of Innosearch, and Innosearch enjoys quiet
and peaceful possession of such leased property. A list of each property
held by Innosearch under lease is attached hereto as Schedule 4.13(b) of the
Innosearch Disclosure Statement. Innosearch is not in default in any material
respect under any material lease, agreement or obligation regarding its
properties to which it is a party or by which it is bound.
(c) None of Innosearch's and/or Innosearch's rights and
obligations under the leases referred to in Section 4.13(b) above require the
consent of any other party to the transaction contemplated by this Agreement.
Where such consent is required, Innosearch shall use all commercially
reasonable efforts to obtain, prior to the Closing Date, the consent of all
parties to any such transactions.
18.14 PATENTS, COPYRIGHTS, TRADEMARKS. Each of GAT and Innosearch has
exclusive right, title and interest in and to, or adequate licenses, rights,
purchase options, assignments and/or releases with respect to the foregoing,
all of the intangible property, including all patents, trademarks, service
marks, trade names, copyrights, trade secrets and other proprietary rights
(collectively, "Proprietary Rights"), necessary for its business as now
conducted and as currently proposed to be conducted, and neither GAT nor
Innosearch has not received any notice or claim of, nor does it have any
knowledge of, any infringement or misappropriation by GAT or Innosearch of
the asserted rights of others. All assignments and agreements relating to
Proprietary Rights to which GAT and/or Innosearch is a party constitute
legal, valid and binding obligations of the respective parties thereto and
are enforceable in accordance with their respective terms, assuming such
assignments and agreements have been duly authorized by all necessary
corporate action on the part of the other parties to such assignments and
agreements, and except as limited by bankruptcy and other laws of general
application affecting the rights and remedies of creditors generally and
except insofar as the availability of equitable remedies may be limited.
Neither GAT nor Innosearch is aware of any material infringement or
misappropriation by others of any of its Proprietary Rights. Each of GAT and
Innosearch and have taken all steps necessary to establish and maintain its
ownership of or interest in the Proprietary Rights. Attached hereto as
Schedule 4.14 of the Innosearch Disclosure Statement is a true and correct
list for each of GAT and Innosearch of all material: (i) Proprietary Rights
(excluding trade secrets); (ii) registrations and applications for GAT's
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and/or Innosearch's copyrights and trademarks; (iii) the trademarks under
which, and the countries in which, GAT and/or Innosearch sells or intends to
sell products; (iv) all availability searches conducted for GAT's or
Innosearch's trademarks; and (v) all Office Actions issued by the U.S. Patent
and Trademark Office and any equivalent office outside the U.S. relating to
Innosearch's or GAT's trademarks. The material products and processes in
which GAT and/or Innosearch claims trade secret protection have been
independently disclosed in writing to BARRA as of the date hereof.
Innosearch acknowledges and agrees that GAT has independently developed its
Decision and Precision products and all of the other GAT Proprietary Rights
listed on Schedule 4.14 and none of such products or Proprietary Rights
infringes any rights of any third party (including, without limitation,
Innosearch or Yamaichi). Innosearch further acknowledges and agrees that GAT
has exclusive right, title and interest in and to the Decision and Precision
products, and may develop, market, license and otherwise use such Decision
and Precision products without payment of any royalties or fees to any third
parties (including, without limitation, Innosearch or Yamaichi).
18.15 MATERIAL CONTRACTS. Except as set forth on Schedule 4.15 of the
Innosearch Disclosure Statement attached hereto, Innosearch is not a party to
or bound by any contract or other agreement made in the Ordinary Course of
Business which involves aggregate future payments by or to it of $5,000 or
more, and which is made for a fixed period expiring more than one year from
the date hereof, and Innosearch is not a party to or bound by any agreement
not made in the Ordinary Course of Business which is to be performed at or
after the date hereof. Each of the contracts and agreements disclosed to
BARRA pursuant to this Section 4.15 is a legal and binding obligation of
Innosearch (subject to applicable bankruptcy, insolvency and similar laws
affecting creditors' rights generally and subject, as to enforceability, to
equitable principles of general applicability), and no material breach or
default by Innosearch, to the best of Innosearch's knowledge, exists with
respect thereto. No power of attorney or similar authorization given
directly or indirectly by Innosearch is currently outstanding.
18.16 EMPLOYMENT CONTRACTS AND BENEFITS.
(a) Attached hereto as Schedule 4.16 of the Innosearch Disclosure
Statement is an accurate list setting forth all bonus, incentive
compensation, profit-sharing, pension, retirement, stock purchase, stock
option, deferred compensation, severance, hospitalization, medical, dental,
vision, group insurance, death benefits, disability and other fringe benefit
plans, trust agreements, arrangements and commitments of Innosearch
(including but not limited to such plans, agreements, arrangements and
commitments applicable to former employees or retired employees, or for which
such persons are eligible), if any. Copies of all such plans, agreements,
arrangements and commitments that are documented and in effect on the date
hereof and any and all contracts of employment in effect on the date hereof
have been delivered to BARRA.
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(b) With respect to each employee benefit plan (as defined in
Section 3(3) of ERISA) which is listed on Schedule 4.16 of the Innosearch
Disclosure Statement and which is subject to the reporting, disclosure and
record retention requirements set forth in the IRC and Part I of Subtitle B
of Title I of ERISA and the regulations thereunder, each of such requirements
has been fully met in all material respects and on a timely basis.
(c) With respect to each employee benefit plan (as defined in
Section 3(3) of ERISA) which is listed on Schedule 4.16 of the Innosearch
Disclosure Statement and which is subject to Part 4 of Subtitle B of Title I
of ERISA, none of the following now exists or has existed within the six-year
period ending on the date hereof:
(i) Any act or omission constituting a material violation of
Section 402 of ERISA;
(ii) Any act or omission constituting a violation of Section
403 of ERISA;
(iii) Any act or omission by Innosearch or any of its
subsidiaries, or by any director, officer or employee thereof, constituting a
violation of Sections 404 and 405 of ERISA;
(iv) To the best of Innosearch's knowledge, any act or
omission by any other person constituting a violation of Sections 404 or 405
of ERISA;
(v) Any act or omission which constitutes a material
violation of Sections 406 or 407 of ERISA and is not exempted by Section 408
of ERISA or which constitutes a violation of Section 4975(c) of the IRC and
is not exempted by Section 4975(d) of the IRC; or
(vi) Any act or omission constituting a violation of Sections
503, 510 or 511 of ERISA.
(d) All contributions, premiums or other payments due from
Innosearch as of December 31, 1996 to (or under) any plan listed on Schedule
4.16 of the Innosearch Disclosure Statement have been fully paid or
adequately provided for on the unaudited financial statements of Innosearch
for the period ended December 31, 1996. All accruals thereon (including,
where appropriate, proportional accruals for partial periods) have been made
in accordance with GAAP consistently applied on a reasonable basis.
(e) Each plan listed on Schedule 4.16 of the Innosearch Disclosure
Statement complies in all material respects with all applicable requirements
of (A) the Age Discrimination in Employment Act of 1967, as amended, and the
regulations thereunder and (B) Title VII of the Civil Rights Act of 1964, as
amended, and the regulations thereunder.
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(f) Each plan listed on Schedule 416 of the Innosearch Disclosure
Statement complies in all material respects with all applicable requirements
of the health care continuation coverage provisions of the Consolidated
Omnibus Budget Reconciliation Act of 1985, and the regulations thereunder.
(g) Attached hereto as Schedule 4.16 of the Innosearch Disclosure
Statement is a list of the names of each director, officer and employee of
Innosearch.
18.17 COMPLIANCE WITH ERISA. Innosearch has neither maintained nor
contributed to an employee pension benefit plan, as defined in Section 3(2)
of ERISA, including multi-employer plans.
18.18 COLLECTIVE BARGAINING AND EMPLOYMENT AGREEMENTS. Innosearch does
not have any union or collective bargaining or written employment agreements,
contracts or other agreements with any labor organization or with any member
of management, or any management or consultation agreement not terminable at
will by Innosearch without liability and no such contract or agreement is
under discussion by management with, any group of employees, any member of
management or any other person. Each of Innosearch's employees is terminable
at will by Innosearch without liability. There are no material controversies
pending between Innosearch and any current or former employees, and to the
best of Innosearch's knowledge, there are no efforts presently being made by
any labor union seeking to organize any of such employees.
18.19 COMPENSATION OF OFFICERS AND EMPLOYEES. Except as set forth on
the Employee List, which has been delivered to BARRA pursuant to Section
3.2(f), (i) no officer or employee of Innosearch is receiving aggregate
direct remuneration at a rate exceeding $3,000 per annum, and (ii) except as
provided in this Agreement, the consummation of the transactions contemplated
by this Agreement will not (either alone or upon the occurrence of any
additional or further acts or events) result in any additional payment
(whether of severance pay or otherwise) becoming due from Innosearch, or
BARRA to any employee of Innosearch.
18.20 LEGAL ACTIONS AND PROCEEDINGS. Innosearch is not a party to, or
threatened with, any legal action or other proceeding or investigation before
any court, any arbitrator of any kind or any government agency, and to the
best of the Innosearch Shareholders' knowledge, Innosearch is not subject to
any potential adverse claim, the outcome of which could involve the payment
or receipt by Innosearch of any amount in excess of $25,000, or $50,000 for
all claims in the aggregate. There is no labor dispute, strike, slow-down or
stoppage pending or, to the best of the knowledge of Innosearch, threatened
against Innosearch.
18.21 RETENTION OF BROKER OR CONSULTANT. No broker, agent, finder,
consultant or other party (other than legal, compliance, loan auditors,
accounting advisors, Xxxxxxx and the Updata Group, Inc.) has been retained by
Innosearch or is entitled to be paid based upon
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any agreements, arrangements or understandings made by Innosearch in
connection with any of the transactions contemplated by this Agreement.
18.22 INSURANCE. Innosearch is, and has been continuously since January
1, 1993, insured with reputable insurers against all risks normally insured
against by companies similarly situated, and all of the insurance policies
and bonds maintained by Innosearch are in full force and effect, Innosearch
is not in default thereunder and all material claims thereunder have been
filed in due and timely fashion. In the judgment of the management of
Innosearch, such insurance coverage is adequate for Innosearch. Since
December 31, 1996, there has not been any damage to, destruction of, or loss
of any assets of Innosearch not covered by insurance.
18.23 TRANSACTIONS WITH AFFILIATES. Since December 31, 1996, Innosearch
has not extended credit, committed to extend credit, or transferred any asset
to or assumed or guaranteed any liability of each other or of the employees,
stockholders or directors of Innosearch, or any spouse or child of any of
them, or to any of their "affiliates" or "associates" as such terms are
defined in Rule 405 under Regulation C of the Securities Act, except for (i)
expenses in the Ordinary Course of Business not to exceed $2,000 in each
individual instance and $5,000 in the aggregate and (ii) extensions of credit
made by Innosearch and/or GAT to each other, as set forth in Schedule 4.23.
All intercompany extensions of credit and other loans between GAT and
Innosearch and their affiliates and associates have been made with all
requisite consents and approvals. Since December 31, 1996, Innosearch has
not entered into any other transactions with the employees or directors of
Innosearch or any spouse or child of any of them, or any of their affiliates
or associates.
18.24 TRADING IN BARRA COMMON. The Innosearch Shareholders represent
that they have not, either individually, jointly or collectively, during the
period constituting twenty (20) trading days prior to the date hereof, either
directly or indirectly, bought or sold, or otherwise effected any trade in
any shares of BARRA Common, or any security derivative of BARRA Common.
18.25 NO DEPARTING EMPLOYEES. Since December 31, 1996, no employee
listed on Schedule 4.25 on the Innosearch Disclosure Statement attached
hereto has left the employ of Innosearch or has given notice to Innosearch of
his or her intention to leave the employ of Innosearch nor does Innosearch
have any knowledge that any current employee who is listed on Schedule 4.25
intends, or more than 10% of all employees of Innosearch intend, to leave the
employ of Innosearch, due to the transactions contemplated by this Agreement
or otherwise. All employees who since March 31, 1996 were, or as of the
Closing Date are, significant to the operations of Innosearch are listed on
Schedule 4.25.
18.26 NO LOSS OF CUSTOMERS. Attached hereto as Schedule 4.26 is a
current list of (i) customers and subscribers of Innosearch, including
products and services subscribed for each customer and subscriber
("Innosearch Customers"), (ii) a list of Innosearch Customers
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which, since December 31, 1996, have ceased to be customers or subscribers of
Innosearch, (iii) a list of Innosearch Customers which, since December 31,
1996, have given notice that they will cease to be customers or subscribers
of Innosearch and (iv) a current list of Innosearch Customers which
Innosearch has reason to know may cease to be customers or subscribers of
Innosearch. Since December 31, 1996 to the date of this Agreement, to the
best knowledge of the Innosearch Shareholders, Innosearch has not lost any
Innosearch customers which in the aggregate accounted, or would have
accounted, for five percent (5%) or more of the gross revenues of Innosearch
for the fiscal year ended March 31, 1997. Since the date of signing of this
Agreement, to the best knowledge of the Innosearch Shareholders, Innosearch
has not lost any Innosearch Customers which in the aggregate accounted for,
or would have accounted for, three percent (3%) or more of the gross revenues
of Innosearch for the fiscal year ended March 31, 1997.
18.27 COMMUNICATIONS WITH SHAREHOLDERS. Except as disclosed to BARRA on
Schedule 4.27 of the Innosearch Disclosure Statement, Innosearch has not made
any written communications addressed solely and jointly to all Innosearch
Shareholders the last three years.
18.28 ACCURACY OF REPRESENTATIONS AND WARRANTIES. No representation or
warranty by Innosearch or any of the Innosearch Shareholders, and no
statement by Innosearch or any of the Innosearch Shareholders in any
certificates, agreements, schedules or other documents furnished in
connection with the transactions contemplated by this Agreement, contain or
will contain any untrue statement of a material fact or omit or will omit to
state any material fact necessary to make such representation, warranty or
statement not misleading to BARRA; provided however, that information as of a
later date shall be deemed to modify information as of an earlier date.
18.29 PROPOSED BUSINESS COMBINATION. Except with respect to the
transactions contemplated by this Agreement: (i) Innosearch has not had any
inquiries, discussions, or negotiations, nor has it received any proposals,
letters of intent, term sheets or agreements with any third party, in
connection with any proposed or potential Business Combination, as that term
is defined in Section 3.2(i); (ii) Since February 4, 1997, Innosearch has not
entered into any letter of intent, term sheet or agreement with any third
party or made any public announcement in connection with a proposed,
potential or actual Business Combination; and (iii) to the best of the
Innosearch Shareholder's knowledge, neither the execution of this Agreement,
nor the consummation of the transactions contemplated hereby, will result in
any suit, action, investigation, claim or proceeding being commenced against
BARRA, Innosearch, or the Surviving Corporation or their respective officers,
directors, employees, agents or subsidiaries, or successors in interest.
18.30 INNOSEARCH BALANCE SHEET. The Innosearch Shareholders shall
provide to BARRA a balance of sheet of Innosearch dated as March 31, 1997
(the "3/31/97 Balance Sheet"). The 3/31/97 Balance Sheet shall have been
prepared in accordance with GAAP
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and present fairly, in all material respects, the consolidated financial
position of Innosearch at the date indicated, subject to normal year-end
adjustments, and the absence of certain notes thereto, none of which notes or
adjustments will be material.
19. REPRESENTATIONS AND WARRANTIES OF BARRA.
BARRA represents and warrants to the Innosearch Shareholders that:
19.1 CORPORATE STATUS AND POWER TO ENTER INTO AGREEMENTS. BARRA is a
corporation duly organized, validly existing and in good standing under the
laws of California and, subject to the approval of this Agreement and the
transactions contemplated hereby, has all necessary corporate power to enter
into this Agreement and the Escrow Agreement and to carry out all of the
terms and provisions hereof and thereof to be carried out by it.
19.2 CERTIFICATE, BYLAWS, BOOKS AND RECORDS. The copies of the Articles
of Incorporation and Bylaws of BARRA delivered to the Innosearch Shareholders
prior to the date hereof are complete and accurate copies thereof as in
effect on the date hereof. The Articles of Incorporation and Bylaws of BARRA
and all amendments thereto have been duly approved by all requisite corporate
action and said Articles of Incorporation and all amendments thereto have
been duly filed with the California Secretary of State.
19.3 PROPERTIES. BARRA and each of its subsidiaries each has the
corporate power to own or lease its properties and to conduct its business as
currently conducted.
19.4 BARRA SEC DOCUMENTS. All documents (other than preliminary
material) that BARRA has filed with the SEC since March 31, 1996 and that
BARRA shall file with the SEC after the date hereof (collectively, the "BARRA
SEC documents") pursuant to the applicable requirements of the Securities Act
of 1933, as amended (the "Securities Act"), the Securities Exchange Act of
1934, as amended (the "Exchange Act"), the Investment Advisers Act of 1940,
as amended, and the Investment Company Act of 1940 (collectively, the "1940
Acts"), as amended, complied in all material respects with the applicable
requirements of the Securities Act, the Exchange Act and the 1940 Acts, and
none of the BARRA SEC Documents contained any untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary in order to make the statements made therein, in light of the
circumstances under which they were made, not misleading except to the extent
corrected by a subsequently filed BARRA SEC Document. The financial
statements of BARRA included in the BARRA SEC Documents comply as to form in
all material respects with applicable accounting requirements and with the
published rules and regulations of the SEC with respect thereto, have been
prepared in accordance with GAAP (except as may be indicated in the notes
thereto or, in the case of unaudited statements, as permitted by the rules
and regulations of the SEC) and fairly present the consolidated financial
position of BARRA and its consolidated subsidiaries as at the dates thereof
and the consolidated results of their operation and changes in financial
position for the periods then ended (subject in the case of unaudited
statements, to normal recurring
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audit adjustments). Except as disclosed in the BARRA SEC Documents filed
prior to the execution of this Agreement, or except as contemplated by this
Agreement or on account of the transactions contemplated hereby, since the
date of the most recent BARRA SEC Document, there has not been any material
adverse change in the results of operations, financial condition, assets or
business of BARRA and its subsidiaries taken as a whole.
19.5 MATERIAL ADVERSE CHANGE. Other than a change in financial
condition which will result from the consummation of the transactions
contemplated by this Agreement, there has been no material adverse change in
the financial condition, results of operation or assets of BARRA from the
financial condition, results of operation or assets indicated in the
financial statements of BARRA at December 31, 1996, which financial
statements have been heretofore provided to the Innosearch Shareholders.
19.6 EXECUTION AND DELIVERY OF THE AGREEMENT.
(a) The execution and delivery of this Agreement has been duly and
validly authorized by the Board of Directors of BARRA and this Agreement will
be duly and validly authorized by all necessary corporate action on the part
of BARRA.
(b) This Agreement has been duly executed and delivered by BARRA
and (assuming due execution and delivery by and enforceability against the
Innosearch Shareholders) constitute legal and binding obligations of BARRA,
enforceable in accordance with their terms, except as enforcement may be
limited by applicable bankruptcy laws and other similar laws affecting
creditors' rights generally, and except that the availability of equitable
remedies may be limited.
(c) The execution and delivery by BARRA of this Agreement and the
consummation of the transactions described herein (i) do not and will not
violate any provision of the Articles of Incorporation or Bylaws of BARRA,
any provision of federal or state law or any governmental rule or regulation
(assuming (A) receipt of the Government Approvals, (B) receipt of appropriate
permits or approvals under applicable state securities laws, and (C) accuracy
of the representations and warranties of the Innosearch Shareholders as set
forth herein), and (ii) do not require any consent of any person under,
conflict with or result in a breach of, or accelerate the performance
required by any of the terms of, any material debt instrument, lease,
license, covenant, agreement or understanding to which BARRA is a party or by
which it is bound or any order, ruling, decree, judgment, arbitration award
or stipulation to which BARRA is subject, or constitute a material default
thereunder or result in the creation of any lien, claim, security interest,
encumbrance, charge, restriction or similar right of any third party of any
kind whatsoever upon any of the properties or assets of BARRA.
19.7 ACCURACY OF REPRESENTATIONS AND WARRANTIES. No representation or
warranty by BARRA and no statement by BARRA in any certificate, agreement,
schedule or other document furnished in connection with the transactions
contemplated by this Agreement
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contains or will contain any untrue statement of material fact or omit or
will omit to state any material fact necessary to make such representation,
warranty or statement not misleading to the Innosearch Shareholders;
PROVIDED, HOWEVER, that information as of a later date shall be deemed to
modify information as of an earlier date.
19.8 CAPITALIZATION. As of March 31, 1997, the authorized capital stock
of BARRA consisted of (i) 40,000,000 shares of common stock, no par value, of
which 8,417,314 shares were issued and outstanding and (ii) 10,000,000 shares
of preferred stock, no par value of which none were issued and outstanding.
As of March 31, 1997, there were 2,200,000 shares of BARRA Common, no par
value, authorized for issuance upon exercise of stock options granted or to
be granted pursuant to the BARRA Stock Option Plan, and options to purchase
1,691,540 shares were outstanding. As of March 31, 1997, there were 30,257
shares of BARRA Common authorized for issuance upon exercise of stock options
granted or to be granted pursuant to the Xxxxxx, Xxxxx & Associates 1992
Stock Option Plan, and options to purchase 25,415 shares were outstanding.
As of March 31, 1997, there were 750,000 shares of Common, no par value
authorized for issuance pursuant to the BARRA, Inc. 1996 Employee Stock
Purchase Plan and 738,478 shares remained available for issuance under that
plan. Pending approval of the shareholders of BARRA at the July 31, 1997
annual meeting, the Board of Directors of BARRA has approved the
authorization of an additional 700,000 shares of BARRA Common for issuance
under the BARRA Stock Option Plan and has also approved the creation of a
Stock Option Plan for the non-employee members of the Board of Directors of
BARRA which will have 100,000 shares of BARRA Common authorized for issuance
upon exercise of stock options granted or to be granted pursuant to the terms
of that plan. Neither of these authorizations will be effective until they
are approved by the Shareholders of BARRA. Other than as set forth in this
subsection or in the BARRA SEC Documents and other than options to purchase
BARRA Common granted since March 31, 1997 under the BARRA Stock Option Plan,
there are no outstanding (i) options, agreements, calls or commitments of any
character which would obligate BARRA to issue, sell, pledge, assign or
otherwise encumber or dispose of, or to purchase, redeem or otherwise
acquire, any BARRA Common Stock or any other equity security of BARRA, or
(ii) warrants or options relating to, rights to acquire, or debt or equity
securities convertible into, shares of BARRA Common Stock or any other equity
security of BARRA.
19.9 Duly Authorized Issuances. All BARRA Shares will, when issued and
delivered pursuant to and in accordance with the terms of this Agreement, be
duly authorized, validly issued, fully paid and nonassessable.
19.10 RETENTION OF BROKER OR CONSULTANT. Except for Xxxxxxxxx & Xxxxx
LLC, no broker, agent, finder, consultant or other party (other than legal,
compliance, loan auditors and accounting advisors) has been retained by BARRA
or is entitled to be paid based upon any agreements, arrangements or
understandings made by BARRA in connection with any of the transactions
contemplated by this Agreement.
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19.11 COMPLIANCE WITH LAWS, REGULATIONS AND DECREES. BARRA (i) has the
corporate power to own or lease all its properties and to conduct its
business as currently conducted, (ii) has complied with, and is not in
default of any laws, regulations, ordinances, orders or decrees applicable to
the conduct of its business and the ownership of its properties, other than
where such noncompliance or default is not likely to result in a material
limitation on the conduct of its business or is not likely to otherwise have
a material adverse effect on BARRA and its subsidiaries taken as a whole,
(iii) has not failed to file with the proper federal, state, local or other
authorities any material report or other document required to be so filed,
(iv) has all material approvals, authorizations, consents, licenses,
clearances and orders of, and has currently effective all registrations with
all governmental and regulatory authorities which are necessary to the
business and operations of BARRA now being conducted, and (v) has received no
notification, formally or informally, from any agency or department of any
federal, state or local government or any regulatory agency or the staff
thereof (A) asserting that BARRA is not in material compliance with any of
the statutes, regulations or ordinances which such government or regulatory
authority enforces, or (B) threatening to revoke any material license,
franchise, permit or governmental authorization of BARRA.
20. INVESTMENT REPRESENTATION.
(a) The BARRA Shares received by the Innosearch Shareholders
pursuant to the terms of this Agreement (the "Securities") will be acquired
for the Innosearch Shareholders' own account, not as a nominee or agent, and
not with a view to the distribution of any part thereof.
(b) Each Innosearch Shareholder has investigated BARRA's business,
management and financial condition, has read the BARRA SEC Documents and has
had access to all information requested pursuant to Section 3.1(g) and to
such other information about BARRA as such Innosearch Shareholder has deemed
necessary or desirable to reach an informed and knowledgeable decision to
acquire the Securities.
(c) Each Innosearch Shareholder understands that the Securities
have not been registered under the Securities Act by reason of reliance upon
certain exemptions therefrom, and that the reliance of BARRA on such
exemptions is predicated upon, among other things, the bona fide nature of
each Innosearch Shareholder's investment intent as expressed herein.
(d) Each Innosearch Shareholder is experienced in evaluating and
investing in securities and has made investments in securities other than
those of Innosearch. Each Innosearch Shareholder is knowledgeable in
business and financial matters and is capable of evaluating the merits and
risks of an investment in BARRA. Each Innosearch Shareholder acknowledges
that it has the ability to bear the economic risk of its investment pursuant
to this Agreement.
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(e) Each Innosearch Shareholder understands that the Securities
being purchased hereunder are restricted securities within the meaning of
Rule 144 under the Securities Act; that the Securities are not registered and
must be held indefinitely unless they are subsequently registered or an
exemption from such registration is available.
(f) Each certificate representing the Securities when delivered to
the Innosearch Shareholders at the Closing or upon exercise of the Yamaichi
Option shall be endorsed with the following or substantially similar legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "1933
ACT"), OR QUALIFIED UNDER APPLICABLE STATE SECURITIES LAWS AND MAY
NOT BE SOLD, OFFERED FOR SALE, TRANSFERRED, PLEDGED OR
HYPOTHECATED (I) IN THE ABSENCE OF A REGISTRATION STATEMENT IN
EFFECT WITH RESPECT TO THESE SECURITIES UNDER THE 1933 ACT, AND AN
EFFECTIVE REGISTRATION OR QUALIFICATION OF THESE SECURITIES FOR
SALE UNDER ANY APPLICABLE STATE SECURITIES LAW; (II) IN THE
ABSENCE OF AN OPINION OF COUNSEL SATISFACTORY TO BARRA, INC. THAT
SUCH REGISTRATION AND QUALIFICATION ARE NOT REQUIRED; OR (III)
UNLESS SOLD PURSUANT TO RULE 144 OR OTHER APPLICABLE PROVISIONS OF
THE 1933 ACT AND ANY APPLICABLE STATE SECURITIES LAW.
Each Innosearch Shareholder agrees not to attempt any transfer of any
such securities without first complying with the substance of said legend,
and agrees that satisfaction of the issuer may, if BARRA so requests, depend
in part upon an opinion of counsel reasonably acceptable in form and
substance to the issuer, or equivalent evidence. Each of the undersigned
Innosearch Shareholders acknowledges, without limitation, that the foregoing
agreement and representation shall apply to BARRA Shares delivered to such
person as a result of the Closing.
21. REGISTRATION RIGHTS.
21.1 DEFINITIONS. As used in this Section 7, the following terms shall
have the following respective meanings:
(a) "EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, or any similar federal statute and the rules and regulations of the
SEC thereunder, all as the same may be in effect at that time;
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(b) "HOLDER" means any person who holds outstanding Registrable
Securities which have not been sold to the public, but only if such person is
a Innosearch Shareholder as of the Closing Date.
(c) "REGISTER", "REGISTERED" and "REGISTRATION" mean a
registration effected through the preparation and filing of a registration
statement or similar document in compliance with the Securities Act and the
declaration or ordering of effectiveness of such registration statement or
document;
(d) "REGISTRABLE SECURITIES" means (i) any and all shares of BARRA
Common issued upon conversion of the Innosearch Shares pursuant to this
Agreement; and (ii) any and all shares of BARRA Common issued as (or issuable
upon the conversion or exercise of any warrant, right or other security which
is issued as) a dividend or other distribution with respect to, or in
exchange for or in replacement of, such BARRA Common; PROVIDED, HOWEVER, that
(a) shares of BARRA Common which are Registrable Securities shall cease to be
Registrable Securities upon the consummation of any sale of such Innosearch
Shares pursuant to a registration statement or Rule 144 under the Securities
Act; and (b) shares of BARRA Common which are eligible to be sold by the
holder thereof under Rule 144(k) under the Securities Act without numerical
or dollar-value limitation shall cease to be Registrable Securities
(Innosearch Shares with numerical or dollar-value limitations shall cease to
be Registrable Securities at such times and in such dollar amounts as such
Innosearch Shares qualify for sale under Rule 144(e)).
(e) "REGISTRATION EXPENSES" means all expenses incurred by BARRA
in effecting any registration pursuant to this Agreement, including, without
limitation, all registration, qualification and filing fees, printing
expenses, escrow fees, fees and disbursements of counsel for BARRA, blue sky
fees and expenses, and the expense of any special audits incident to or
required by any such registration.
(f) "SECURITIES ACT" means the Securities Act of 1933, as amended,
or any similar federal statute and the rules and regulations of the SEC
thereunder, all as the same may be in effect at that time;
(g) "SELLING EXPENSES" means all underwriting discounts, selling
commissions and stock transfer taxes applicable to the securities registered
by the Holders.
21.2 BARRA REGISTRATION.
(a) NOTICE OF REGISTRATION. If, at any time or from time to time
BARRA shall determine to register any of its securities for its own account
in connection with an offering of its securities to the general public for
cash on a form which would permit the registration of Registrable Securities,
BARRA will:
(i) promptly give to each Holder written notice thereof; and
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(ii) include in such registration (and any related
qualification under blue sky laws or other compliance), and in any
underwriting involved therein, the Registrable Securities specified in a
written request or requests (subject to Section 7.3 below), made within
twenty (20) days after mailing or personal delivery of such written notice
from BARRA by any Holders.
21.3 UNDERWRITING. If the registration of which BARRA gives notice is
for a registered public offering involving an underwriting, BARRA shall so
advise the Holders as a part of the written notice given pursuant to Section
7.2(a)(i). In such event, the right of any Holder to registration pursuant
to this Section 7 shall be conditioned upon such Holder's participation in
such underwriting and the inclusion of such Holder's Registrable Securities
in the underwriting to the extent provided herein. All Holders proposing to
distribute their securities through such underwriting shall (together with
BARRA) enter into an underwriting agreement in customary form with the
underwriter or underwriters selected for such underwriting by BARRA.
Notwithstanding any other provision of this Section 7, if the underwriter
determines that marketing factors require a limitation of the number of
Innosearch Shares to be underwritten, the underwriter may limit the number of
Registrable Securities to be included in the registration and underwriting,
or may exclude Registrable Securities entirely from such registration and
underwriting. In such event BARRA shall so advise all Holders whose
securities would otherwise be registered and underwritten pursuant hereto,
and the number of Innosearch Shares of Registrable Securities that may be
included in the registration and underwriting shall be allocated among all
Holders in proportion, as nearly as practicable, to the respective amounts of
Registrable Securities entitled to inclusion in such registration held by
such Holders at the time of filing the registration statement. If any Holder
disapproves of the terms of any such underwriting, he may elect to withdraw
therefrom by written notice to BARRA and the underwriter provided on or
before ten (10) days prior to the filing of the registration statement. Any
securities excluded or withdrawn from such underwriting shall be withdrawn
from such registration and shall not be transferred in a public distribution
prior to 180 days after the Closing Date of the registration statement
relating thereto.
21.4 EXPENSES OF REGISTRATION. All Registration Expenses incurred in
connection with registrations, filings, qualifications or compliance pursuant
to this Section 7 shall be borne by BARRA, and unless otherwise stated, all
Selling Expenses relating to securities registered by the Holders shall be
borne by the holders of such securities pro rata on the basis of the number
of Innosearch Shares so registered.
21.5 FURNISH INFORMATION. It shall be a condition precedent to the
obligations of BARRA to take any action pursuant to this Section 7 that the
selling Holders shall furnish to BARRA such information regarding themselves,
the Registrable Securities held by them, and the intended method of
disposition of such securities as shall be required to effect the
registration of their Registrable Securities.
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21.6 INDEMNIFICATION. In the event any Registrable Securities are
included in a registration statement under this Section 7:
(a) To the extent permitted by law, BARRA will indemnify and hold
harmless each Holder, against any losses, claims, damages or liabilities
(joint or several) to which they may become subject under the Securities Act,
the Exchange Act or other federal or state law, insofar as such losses,
claims, damages, or liabilities (or actions in respect thereof) arise out of
or are based upon any of the following statements, omissions or violations
(collectively a "Violation"): (i) any untrue statement or alleged untrue
statement of a material fact contained in such registration statement,
including any preliminary prospectus or final prospectus contained therein or
any amendments or supplements thereto; (ii) the omission or alleged omission
to state therein a material fact required to be stated therein, or necessary
to make the statements therein not misleading; or (iii) any violation or
alleged violation by BARRA of the Securities Act, the Exchange Act, any state
securities law or any rule or regulation promulgated under the Securities
Act, the Exchange Act, other applicable law or any state securities law in
each case to the extent (and only to the extent) that such violation occurs
in reliance upon and in conformity with statements and materials contained in
the registration statement filed with the Commission relating to such
registration including any preliminary prospectus or final prospectus
contained therein; and BARRA will reimburse each such Holder, for any legal
or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability, or
action; provided, however, that the indemnity agreement contained in this
Section 7.6(a) shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability, or action if such settlement is effected
without the consent of BARRA (which consent shall not be unreasonably
withheld), nor shall BARRA be liable in any such case for any such loss,
claim, damage, liability, or action to the extent that it arises out of or is
based upon a Violation which occurs in reliance upon and in conformity with
written information furnished expressly for use in connection with such
registration by any such Holder.
(b) To the extent permitted by law, each Holder will, if
Registrable Securities held by such person are included in the securities as
to which such registration, qualification or compliance is being effected,
indemnify and hold harmless BARRA, each of its directors and officers, each
legal counsel and independent accountant of BARRA, each person, if any, who
controls BARRA within the meaning of the Securities Act, each underwriter
(within the meaning of the Securities Act) of BARRA's securities covered by
such a registration statement, and any other Holder selling securities in
such registration statement against any losses, claims, damages, or
liabilities (joint or several) to which BARRA, its directors, officers or
controlling persons, any such legal counsel or independent accountant of
BARRA, or any such underwriter, or other Holder may become subject under the
Securities Act, the Exchange Act or other federal or state law, insofar as
such losses, claims, damages or liabilities (or actions in respect thereto)
arise out of or are based upon any Violation, in each case to the extent (and
only to the extent) that such Violation
108
occurs in reliance upon and in conformity with written information furnished
by such Holder expressly for use in connection with such registration, and
each such Holder will reimburse any legal or other expenses reasonably
incurred by BARRA, its officers, directors, or controlling persons or any
such underwriter or, other Holder in connection with investigating or
defending any such loss, claim damage, liability, or action; provided,
however, that the indemnity agreement contained in this Section 7.6(b) shall
not apply to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the consent of the
Holder, which consent shall not be unreasonably withheld.
(c) Promptly after receipt by an indemnified party under this
Section 7.6 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect
thereof is to be made against any indemnifying party under this Section 7.6,
notify the indemnifying party in writing of the commencement thereof, and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party
shall have the right to retain its own counsel, with the fees and expenses to
be paid by the indemnifying party, if representation of such indemnified
party by the counsel retained by the indemnifying party would be
inappropriate due to actual or potential differing interests between such
indemnified party and any other party represented by such counsel in such
proceeding. The failure of any indemnified party to notify an indemnifying
party within a reasonable time of the commencement of any such action, if
prejudicial to its ability to defend such action, shall relieve such
indemnifying party of liability to the indemnified party under this Section
7.6 only to the extent that such failure to give notice shall materially
prejudice the indemnifying party in the defense of any such claim or any such
litigation, but the omission so to notify the indemnifying party will not
relieve it of any liability that it may have to any indemnified party
otherwise than under this Section 7.6.
21.7 "MARKET STAND-OFF" AGREEMENT. Each Holder hereby agrees that it
will not, to the extent requested by BARRA and an underwriter of BARRA Common
(or other securities) of BARRA sell or otherwise transfer or dispose of any
Registrable Securities, except BARRA Common included in such registration,
during the one hundred eighty (180) day period following the Closing Date of
any registration statements of BARRA filed under the Securities Act.
In order to enforce the foregoing covenant, BARRA may impose
stop-transfer instructions with respect to the Registrable Securities of each
Holder (and the Innosearch Shares or securities of every other person subject
to the foregoing restriction) until the end of such 180-day period.
22. CONDITIONS TO THE OBLIGATIONS OF BARRA.
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The obligations of BARRA under this Agreement are, at its option,
subject to fulfillment at or prior to the Closing Date of each of the
following conditions; PROVIDED, HOWEVER, that any one or more of such
conditions may be waived in writing by BARRA at any time at or prior to the
Closing Date; AND PROVIDED FURTHER, that each certificate, document, opinion
or other writing, including the Innosearch Disclosure Statement, required to
be delivered by the parties at the Closing, shall be provided at least five
(5) days prior to the scheduled Closing:
22.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties
of the Innosearch Shareholders in Sections 4 and 6 hereof shall be true and
correct in all material respects on the date hereof and as of the Closing
Date, with the same effect as though such representations and warranties had
been made on and as of such date except as to any representation or warranty
which specifically relates to a specified date, and the representations and
warranties shall not contain any material inaccuracies or omissions the
circumstances as to which either individually or in the aggregate have, or
reasonably could be expected to have, a material adverse effect on Innosearch.
22.2 COMPLIANCE AND PERFORMANCE UNDER AGREEMENT. Each Innosearch
Shareholder shall have performed and complied in all material respects with
all terms of this Agreement required to be performed or complied with by it
at or prior to the Closing Date, including, without limitation, each of the
covenants set forth in Section 3.2
22.3 MATERIAL ADVERSE CHANGE. Except as disclosed to BARRA in writing
prior to the date hereof, no materially adverse change shall have occurred
since December 31, 1996, in the business, financial condition or results of
operations of Innosearch and Innosearch shall not be a party to or threatened
with, any legal action or other proceeding before any court, any arbitrator
of any kind or any government agency if, in the reasonable judgment of BARRA,
such legal action or proceeding could materially adversely affect Innosearch,
or the business, financial condition, results of operations or prospects of
Innosearch.
22.4 SHAREHOLDERS' CERTIFICATE. BARRA shall have received a
certificate, dated the Closing Date, signed by the Innosearch Shareholders,
to the effect that the conditions in this Section 8.1, 8.2, 8.3, (to the best
of the Innosearch Shareholders' knowledge), 8.7, 8.8, 8.9, 8.10 and 8.12 have
been satisfied.
22.5 NO INJUNCTIONS OR RESTRAINTS; ILLEGALITY. No temporary restraining
order, preliminary or permanent injunction or other order issued by any court
of competent jurisdiction or other legal or regulatory restraint or
prohibition preventing the consummation of the purchase shall be in effect.
22.6 INNOSEARCH BOARD OF DIRECTORS. Immediately upon closing, all
members of the Board of Directors of Innosearch representing Innosearch
Shareholders who have executed this Agreement shall submit a letter of
resignation, effective as of the Closing Date.
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22.7 Government Approvals. All Government Approvals shall be in effect,
and all conditions or requirements prescribed by law or by any such
Government Approval shall have been satisfied; PROVIDED, HOWEVER, that no
Government Approval shall be deemed to have been received if it shall require
the divestiture or cessation of any of the present businesses or operations
conducted by either of the parties hereto or shall impose any other condition
or requirement, which divestiture, cessation, condition or requirement BARRA,
in its reasonable judgment shall deem to be materially burdensome (in which
case BARRA shall promptly notify Innosearch). For purposes of this Agreement
no condition shall be deemed to be "materially burdensome" if such condition
would not (a) require the taking of any action materially inconsistent with
the manner in which BARRA or Innosearch has conducted its business
previously, (b) have a material adverse effect upon the business, financial
condition or results of operations of BARRA or Innosearch, or (c) preclude
satisfaction of any of the material conditions to consummation of the
transactions contemplated by this Agreement.
22.8 EXPENSES. On or before the date hereof, all attorneys,
accountants, consultants, investment bankers and other advisors and agents
for Innosearch shall have submitted to GAT (with a copy to BARRA) estimates
of and all invoices for their fees and expenses (including, but not limited
to, legal, accounting and financial advisory expenses) for all services
rendered in any respect in connection with the transactions contemplated
hereby, (collectively, the "Innosearch Expenses"). Based on such Innosearch
Expenses, Innosearch shall have prepared and submitted to BARRA on the date
hereof a summary of such fees and expenses as of the date hereof (the
"Expense Summary"). At least five (5) business days prior to the Closing
Date, such advisors shall have submitted their final bills for such fees and
expenses to GAT for services rendered, with a copy to be delivered to BARRA,
and based on such summary, Innosearch shall have prepared and submitted to
BARRA a final Expense Summary dated as of the Closing Date.
22.9 CLOSING DOCUMENTS. BARRA shall have received such certificates and
other closing documents as counsel for BARRA shall reasonably request.
22.10 CONSENTS. Innosearch shall have received, or BARRA shall have
satisfied itself that Innosearch will receive, all consents of other parties
to and required by all material mortgages, notes, leases, franchises,
agreements, licenses and permits applicable to Innosearch, including, without
limitation, any consents required pursuant to the Advisers Act or Company Act
and for any mortgages, notes, leases, franchises, agreements, licenses and
permits listed on the Schedules 4.2(a) and 4.15 of the Innosearch Disclosure
Statement for Innosearch, in each case in form and substance reasonably
satisfactory to BARRA, and no such consent or license or permit shall have
been withdrawn or suspended.
22.11 GAT TRANSACTION. BARRA, GAT and the stockholders of GAT shall
have entered into a Stock Purchase Agreement substantially similar to this
Agreement (the "GAT
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Agreement"), except that the purchase consideration will be as set forth in
the GAT Agreement.
22.12 OPINION OF COUNSEL. Innosearch shall have delivered to BARRA an
opinion of counsel in the form that will be established by the mutual
agreement of the parties and attached hereto as EXHIBIT A at the Closing.
22.13 THIRD PARTY ACTIONS. No suit, action, investigation, claim or
proceeding commenced or to the best knowledge of Innosearch is to be
commenced by any party based in whole or in part on an argument or assertion
that BARRA, due to this Agreement, the negotiations leading up to this
Agreement, the purchase, or related agreements or activities, interfered or
is interfering with any contractual relations of Innosearch or any party with
whom Innosearch is, or has been, or may be engaged in business discussions.
23. CONDITIONS TO THE OBLIGATIONS OF THE INNOSEARCH SHAREHOLDERS.
The obligations of Innosearch Shareholders under this Agreement are
subject to the fulfillment at or prior to the Closing Date of each of the
following conditions; PROVIDED, HOWEVER, that any one or more of such
conditions may be waived in writing by a majority in interest of the
Innosearch Shareholders at any time prior to the Closing Date; AND PROVIDED
FURTHER, that each certificate, document, opinion or other writing required
to be delivered by the parties at the Closing shall be provided at least five
(5) days prior to the Closing:
23.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties
of BARRA in Section 5 hereof shall be true and correct in all material
respects on the date hereof and as of the Closing Date, with the same effect
as though such representations and warranties had been made on and as of such
date except as to any representation or warranty which specifically relates
to a specified date and does not contain any inaccuracies or omissions the
circumstances as to which either individually or in the aggregate have, or
reasonably could be expected to have, a material adverse effect on BARRA.
23.2 COMPLIANCE AND PERFORMANCE UNDER AGREEMENT. BARRA and its
subsidiaries shall have performed and complied in all material respects with
all of the terms of this Agreement required to be performed or complied with
by them at or prior to the Closing Date.
23.3 MATERIAL ADVERSE CHANGE. No materially adverse change shall have
occurred since December 31, 1996, in the business, financial condition,
results of operations or properties of BARRA and its subsidiaries taken as a
whole, and BARRA shall not be engaged in, or a party to or so far as BARRA is
aware, threatened with, and to BARRA's knowledge there is no reasonable basis
for, any legal action or other proceeding before any court, any arbitrator of
any kind or any government agency which, in the reasonable judgment of the
Innosearch Shareholders, could materially adversely affect BARRA or its
business, financial conditions results of operations or assets taken as a
whole.
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23.4 OFFICERS CERTIFICATE. Innosearch shall have received a
certificate, dated the Closing Date, signed on behalf of BARRA by its
President or Chief Executive Officer and Chief Financial Officer or
Treasurer, certifying to the fulfillment of the conditions stated in Sections
9.1, 9.2, 9.3, 9.6 (to the best of BARRA's knowledge), 9.5, 9.8, and 9.11.
23.5 OPINION OF COUNSEL. BARRA shall have delivered to the Innosearch
Shareholders an opinion of its counsel in a form that will be established by
the mutual agreement of the parties and attached hereto as EXHIBIT B at the
Closing.
23.6 THIRD PARTY ACTIONS. No suit, action, investigation, claim or
proceeding commenced or to the best knowledge of BARRA is to be commenced by
any party based in whole or in part on an argument or assertion that the
Innosearch Shareholders, due to this Agreement, the negotiations leading up
to this Agreement, or related agreements or activities, interfered or is
interfering with any contractual relations of BARRA or any party with whom
BARRA is, or has been, or may be engaged in business discussions.
23.7 CLOSING DOCUMENTS. The Innosearch Shareholders shall have received
such certificates and other closing documents as counsel for Innosearch shall
reasonably request.
23.8 NO INJUNCTIONS OR RESTRAINTS; ILLEGALITY. No temporary restraining
order, preliminary or permanent injunction or other order issued by any court
of competent jurisdiction or other legal or regulatory restraint or
prohibition preventing the consummation of the purchase shall be in effect.
23.9 GAT TRANSACTION. BARRA, GAT and the stockholders of GAT shall have
entered into the GAT Agreement.
23.10 GOVERNMENT APPROVALS. All Government Approvals shall be in
effect, and all conditions or requirements prescribed by law or by any such
Government Approval shall have been satisfied; PROVIDED, HOWEVER, that no
Government Approval shall be deemed to have been received if it shall require
the divestiture or cessation of any of the present businesses or operations
conducted by any of the parties hereto or shall impose any other condition or
requirement, which divestiture, cessation, condition or requirement
Innosearch, in its reasonable judgment shall deem to be materially burdensome
(in which case the Innosearch Shareholders shall promptly notify BARRA). For
purposes of this Agreement no condition shall be deemed to be "materially
burdensome" if such condition would not (a) require the taking of any action
materially inconsistent with the manner in which BARRA or Innosearch has
conducted its business previously, (b) have a material adverse effect upon
the business, financial condition or results of operations of BARRA or
Innosearch, or (c) preclude satisfaction of any of the material conditions to
consummation of the transactions contemplated by this Agreement.
24. EXPENSES.
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BARRA and the Innosearch Shareholders agree to pay, without right of
reimbursement from the other party and whether or not the transactions
contemplated by this Agreement shall be consummated, the costs incurred by
each such party incident to the preparation and negotiation of this
Agreement, performance of its obligations under this Agreement and the
consummation of the transactions contemplated hereby and thereby, including
the fees and disbursements of attorneys, accountants, consultants, investment
bankers and other advisors employed by such party in connection therewith.
25. SURVIVAL, INDEMNIFICATION AGAINST LOSS.
25.1 SURVIVAL. The representations, warranties, and agreements made
herein, including but not limited to the indemnification provisions of
Sections 11.2 and 11.3 shall survive any investigation made by any party
hereto. The representations and warranties made herein shall survive the
Closing of the transactions contemplated hereby for a period of one year from
the Closing Date. The representations, warranties, indemnifications and
agreements made pursuant to Section 4.29, Section 11.2 and Section 11.3 shall
survive (i) if a Closing shall occur, for a period of one year from the
Closing Date; or (ii) if this Agreement is terminated, until one year after
the termination of this Agreement. The confidentiality covenants of BARRA
contained in Section 3.3 shall expire on the Closing Date.
25.2 INNOSEARCH SHAREHOLDERS' INDEMNIFICATION.
(a) All of the Innosearch Shareholders shall jointly and severally
defend and indemnify BARRA against, and jointly and severally agree to
indemnify and hold BARRA harmless from, any and all losses, claims, damages,
penalties, liabilities, fines, injuries, costs and expenses (including
reasonable attorneys', accountants' and other professionals' fees,
administrative expenses, prejudgment interest and court costs), incurred or
suffered by BARRA relating to or arising out of or in connection with any
breach or non-fulfillment of or any inaccuracy in any representation,
warranty or covenant made by the Innosearch Shareholders or failure by the
Innosearch Shareholders to perform any obligation or covenant to be performed
by them pursuant to this Agreement or any document delivered by the
Innosearch Shareholders at the Closing.
(b) Claims for indemnity made by BARRA pursuant to the provisions
of Section 11.2(a) must total $10,000 in the aggregate before BARRA can seek
reimbursement for such claims from the Innosearch Shareholders (once the
$10,000 threshold is met, BARRA can seek reimbursement for all indemnity
claims, including those up to the $10,000 threshold but only to the extent
that such claims are limited by Section 11.5).
25.3 BARRA'S INDEMNIFICATION.
(a) BARRA shall defend and indemnify the Innosearch Shareholders
against and agrees to indemnify and hold each of them harmless from any and
all losses,
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claims, damages, penalties, liabilities, fines, injuries, costs and expenses
(including reasonable attorneys', accountants' and other professionals' fees,
administrative expenses, prejudgment interest and court costs), incurred or
suffered by any of them relating to or arising out of or in connection with
any breach or non-fulfillment of or any inaccuracy in any representation,
warranty or covenant made by BARRA or failure by BARRA to perform any
obligation or covenant to be performed by it pursuant to this Agreement or
any document delivered by BARRA at the Closing.
(b) Claims for indemnity made by the Innosearch Shareholders
pursuant to the provisions of Section 11.3(a) must total $10,000 in the
aggregate before the Innosearch Shareholders can seek reimbursement for such
claims from BARRA (once the $10,000 threshold is met, the Innosearch
Stockholders can seek reimbursement for all additional indemnity claims,
including those up to the $10,000 threshold (but only to the extent that such
claims are limited by Section 11.5).
25.4 INDEMNIFICATION PROCEDURES.
(a) Promptly upon obtaining knowledge of any claim, event,
statement of facts or demand which has given rise to, or could reasonably
give rise to, a claim for indemnification hereunder, any party seeking
indemnification under this Article 11 (an "Indemnified Party") shall give
written notice of such claim or demand ("Notice of Claim") to the party from
which indemnification is sought (an "Indemnifying Party"), setting forth the
amount of the claim. The Indemnified Party shall furnish to the Indemnifying
Party in reasonable detail, such information as it may have with respect to
such indemnification claim (including copies of any summons, complaint or
other pleading which may have been served on it and any written claim,
demand, invoice, billing or other document evidencing or asserting the same).
No failure or delay by the Indemnified Party in the performance of the
foregoing shall reduce or otherwise affect the obligation of the Indemnifying
Party to indemnify and hold the Indemnified Party harmless, except to the
extent that such failure or delay shall have adversely affected the
Indemnifying Party's ability to defend against, settle or satisfy any
liability, damage, loss, claim or demand for which the Indemnified Party is
entitled to indemnification hereunder.
(b) Promptly after receipt of notice of any claim by a third party
which might give rise to indemnification hereunder, the Indemnified Party
shall notify the Indemnifying Party in writing specifying in reasonable
detail the nature and amount of the claim. The Indemnifying Party shall be
entitled to assume and have the sole control of the defense and settlement of
such action or claim; PROVIDED, HOWEVER, that:
(i) the Indemnified Party shall be entitled to participate in
the defense of such claim and, in connection therewith, to employ counsel at
its own expense;
(ii) without the prior written consent of the Indemnified
Party, which consent shall not be unreasonably withheld, the Indemnifying
Party shall not
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consent to the entry of any judgment or enter into any settlement that
requires any action by the Indemnified Party other than the payment of money.
(c) In the event the Indemnifying Party elects to assume control
of the defense of any such action in accordance with the foregoing
provisions, (i) the Indemnifying Party shall not be liable to the Indemnified
Party for any legal fees, costs and expenses incurred by the Indemnified
Party in connection with the defense thereof after the date on which the
Indemnifying Party notifies the Indemnified Party of such election and (ii)
the Indemnified Party shall fully cooperate with the Indemnifying Party in
such defense. If the Indemnifying Party does not assume control of the
defense of such claim in accordance with the foregoing provisions, the
Indemnified Party shall have the right to defend such claim, in which case
the Indemnifying Party shall pay all reasonable costs and expenses of such
defense. The Indemnified Party shall conduct such defense in good faith and
shall have the right to settle the matter with the prior written consent of
the Indemnifying Party which consent shall not be unreasonably withheld.
(d) Except for third-party claims being defended in good faith,
the Indemnifying Party shall satisfy its obligations hereunder within thirty
(30) days after the Date of the Notice of Claim.
(e) The term "Date of the Notice of Claim" as used in this Article
10 shall mean either: (i) the third business day after the date of the
postmark on the registered or certified mail containing the Notice of Claim;
or (ii) if the Notice of Claim is personally delivered, the date of such
personal delivery.
25.5 LIMITATION ON INDEMNIFICATION CLAIMS.
(a) Claims for indemnity made by Innosearch pursuant to the
provisions of Section 11.3 (but excluding claims resulting from fraud and
willful misconduct (the "Misconduct Claims") shall be limited to One Hundred
Thousand Dollars ($100,000.)).
(b) Claims for indemnity made by BARRA pursuant to the provisions
of Section 11.2 (but excluding Misconduct Claims) shall be limited to One
Hundred Thousand Dollars ($100,000).
25.6 LIABILITY LIMITED TO INDEMNIFICATION.
(a) The consideration paid by BARRA to the Innosearch Shareholders
to acquire the Innosearch Shares has been established by the parties hereto
based on the allocation of risk and rights of recovery hereunder.
(b) The Innosearch Shareholders have had an opportunity to do due
diligence of BARRA and accordingly have agreed to limit their right to
recourse as set forth in this Section 11. Each of the Innosearch
Shareholders and the affiliates of each shall
116
have no claim or cause of action, whether in contract, tort, under statute or
otherwise, for monetary damages arising out of, or relating to, this
Agreement, the representations and warranties herein or any of the
transactions contemplated hereby apart from the right to indemnification
pursuant to Section 11 hereof.
(c) BARRA has had an opportunity to do due diligence of Innosearch
but has not received copies of all of GAT's or Innosearch's correspondence
with Yamaichi relating to any aspect of this Agreement and accordingly has
agreed to limit its right to recourse as set forth in this Section 11. BARRA,
and the affiliates of BARRA shall have no claim or cause of action, whether
in contract, tort, under statute or otherwise, for monetary damages arising
out of, or relating to, this Agreement, the representations and warranties
herein or any of the transactions contemplated hereby apart from the right to
indemnification pursuant to Section 11 hereof.
(d) The Innosearch Shareholders' obligation to indemnify BARRA
under this Section 11 includes the obligation to indemnify BARRA, and all of
its officers, directors, affiliates and subsidiaries.
26. AMENDMENT; TERMINATION.
26.1 AMENDMENT. This Agreement may be amended by the mutual consent of
the board of directors of BARRA and a majority in interest of the Innosearch
Shareholders at any time prior to the Closing Date with respect to any of its
terms.
26.2 TERMINATION. This Agreement may be terminated as follows:
(a) By the mutual consent of the board of directors of BARRA and a
majority in interest of the Innosearch Shareholders at any time prior to the
Closing.
(b) By the Board of Directors of BARRA on or after ninety (90)
days from the date of this Agreement, but in no event later than the Closing
Date, if any of the conditions in Section 9 to which the obligations of BARRA
are subject have not been fulfilled.
(c) By a majority in interest of the Innosearch Shareholders on or
after ninety (90) days from the date of this Agreement but in no event later
than the Closing Date, if any of the conditions contained in Section 8 to
which the obligations of the Innosearch Shareholders are subject have not
been fulfilled.
26.3 NOTICE. The power of termination hereunder may be exercised by
BARRA or the Innosearch Shareholders, as the case may be, only by giving
written notice to the other party in accordance with the provisions of
Section 13.1.
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26.4 TERMINATION AND EXPENSES. Termination of this Agreement shall not
terminate or affect the obligations of the parties to each pay their own
expenses as provided in Section 10, to maintain the confidentiality of the
other party's information pursuant to Section 3.3, or the provisions of this
Section 12.4, or of Sections 13.1, 13.3, 13.4, 13.5 or 13.6 or the second
sentence of Section 13.2 below and shall not affect any agreement after such
termination. The obligations of BARRA under Sections 3.1(f) and 11.3, and
the obligations of the Innosearch Shareholders under Section 3.2(m) and
Section 11.2, shall survive for one (1) year following any termination of
this Agreement. The Innosearch Shareholders and BARRA agree that any other
termination of this Agreement shall not in any manner release or be construed
as so releasing the nonterminating party or parties from any liability or
damage to the other party or parties arising out of, in connection with or
otherwise relating to, directly or indirectly, such parties' failure in
performance of any of its covenants or agreements hereunder, including
without limitation, any obligations arising under Section 11 of this
Agreement.
27. MISCELLANEOUS.
27.1 NOTICES. Any notice or other communication required or permitted
under this Agreement shall be effective only if it is in writing and
delivered personally, or by overnight express (DHL, UPS or Federal Express)
or by facsimile or sent by first class United States mail, postage prepaid,
registered or certified mail, addressed as follows:
To BARRA: To the Innosearch Shareholders
0000 Xxxxxxxxxx Xxxxxx c/o Innosearch:
Suite 000 Xxxx Xxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxx 00000 00 Xxxx Xxxxxx
Tel: (000) 000-0000 Xxx Xxxx, XX 00000
Fax: (000) 000-0000 Tel:
Attention: Chief Executive Officer Fax:
and General Counsel Attn: Xxxxxx Xx
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With a copy to: With a copy to:
Xxxxx X. Xxxxxxxx, Esq. Xxxxxx X. Xxxx, Esq.
Xxxxxx & Xxxxx LLP Chan Law Group PLC
Xxx Xxxxxxxx Xxxxx, Xxxxx 000 000 Xxxxxxxx Xxxxxxxxx, Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000-0000 2288
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Tel: Tel:
Fax: Fax:
or to such other address as either party may designate by notice to the
other, and shall be deemed to have been given upon receipt.
27.2 BINDING AGREEMENT. This Agreement is binding upon and is for the
benefit of BARRA, the Innosearch Shareholders, and their respective
successors and permitted assigns. This Agreement is not made for the benefit
of any person, firm, corporation or association not a party hereto, and no
other person, firm, corporation or association shall acquire or have any
right under or by virtue of this Agreement. No party may assign this
Agreement or any of its rights, privileges, duties or obligations hereunder
without the prior written consent of the other parties to this Agreement.
27.3 CONSENT TO JURISDICTION AND FORUM SELECTION. The parties hereto
agree that all actions or proceedings arising in connection with this
Agreement shall be tried and litigated exclusively in the State and Federal
courts located in the County of San Francisco, State of California. The
aforementioned choice of venue is intended by the parties to be mandatory and
not permissive in nature, thereby precluding the possibility of litigation
between the parties with respect to or arising out of this Agreement in any
jurisdiction other than that specified in this paragraph. Each party hereby
waives any right it may have to assert the doctrine of forum non conveniens
or similar doctrine or to object to venue with respect to any proceeding
brought in accordance with this paragraph, and stipulates that the State and
Federal courts located in the County of San Francisco, State of California
shall have in personam jurisdiction and venue over each of them for the
purpose of litigating any dispute, controversy, or proceeding arising out of
or related to this Agreement. Each party hereby authorizes and accepts
service of process sufficient for personal jurisdiction in any action against
it as contemplated by this paragraph by registered or certified mail, return
receipt requested, postage prepaid, to its address for the giving of notices
as set forth in this Agreement. Any final judgment rendered against a
119
party in any action or proceeding shall be conclusive as to the subject of
such final judgment and may be enforced in other jurisdictions in any manner
provided by law.
27.4 GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the substantive laws of the State of California, without
giving effect such state's choice-of-law principles.
27.5 ATTORNEYS' FEES. In any action at law or suit in equity in
relation to this Agreement, the prevailing party in such action or suit shall
be entitled to receive a reasonable sum for its attorneys' fees and all other
reasonable costs and expenses incurred in such action or suit.
27.6 ENTIRE AGREEMENT; SEVERABILITY. This Agreement and the
Confidentiality Agreement by and between GAT and BARRA, dated December 26,
1996 and the documents, certificates, agreements, letters, schedules and
exhibits attached or required to be delivered pursuant hereto set forth the
entire agreement and understanding of the parties in respect of the
transactions contemplated hereby, and supersede all prior agreements,
arrangements and understandings relating to the subject matter hereof. Each
provision of this Agreement shall be interpreted in a manner to be effective
and valid under applicable law, but if any provision hereof shall be
prohibited or ruled invalid under applicable law, the validity, legality and
enforceability of the remaining provisions shall not, except as otherwise
required by law, be affected or impaired as a result of such prohibition or
ruling.
27.7 COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
27.8 WAIVERS. Prior to or on the Closing Date, each of BARRA and the
Innosearch Shareholders shall have the right to waive any default in the
performance of any term of this Agreement by BARRA and the Innosearch
Shareholders, to waive or extend the time for the compliance or fulfillment
by the other of any and all of the other's obligations under this Agreement
and to waive any or all of the conditions precedent to its obligations under
this Agreement. No failure to exercise and no delay in exercising any right,
remedy or power hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any right, remedy or power hereunder preclude
any other or further exercise thereof or the exercise of any other right,
remedy or power provided herein or by law or in equity. The waiver by any
party of the time for performance of any act or condition hereunder does not
constitute a waiver of the act or condition itself.
IN WITNESS WHEREOF, BARRA and each of the Innosearch Shareholders have
each caused this Agreement to be signed, effective as of the date written
above.
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BARRA, INC.
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
Global Advanced Technology Corporation.
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
---------------------------------
Xxxxxx Xx
---------------------------------
Xxxxx Xxxx
---------------------------------
Yun-Xian Ho
---------------------------------
Xxxx Xxxxxxx
YAMAICHI SECURITIES COMPANY, LTD.
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
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