EXHIBIT 10.1
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT ("AGREEMENT"), is entered into this 14th day
of August, 1998 and shall be made effective as of July 1, 1998, by and among
Bendata, Inc., a Colorado corporation ("BENDATA"), Bendata (Europe) Limited LLC,
a Colorado limited liability company ("LLC") (together, Bendata and the LLC are
the "COMPANY"), Astea International Inc., a Delaware corporation ("ASTEA"),
Network Data, Inc., a Delaware corporation wholly owned by Astea ("NETWORK")
(together, Astea and Network are "SELLER"), Ixchange Technology Holdings
Limited, a South Africa corporation ("IXCHANGE"), and Bendata Holding, Inc., a
Delaware corporation ("BUYER").
INTENDING TO BE LEGALLY BOUND, and in consideration of the premises and the
mutual and respective representations, warranties, covenants and agreements
contained herein, Ixchange, Buyer, Company, and Seller hereby agree as follows:
ARTICLE I
DEFINITIONS
For purposes of this Agreement, capitalized terms shall have the following
meanings:
"AGREEMENT" means this Stock Purchase Agreement.
"ASTEA" means Astea International Inc., a Delaware corporation.
"BENDATA" means Bendata, Inc., a Colorado corporation.
"BUSINESS CONDITION" shall have the meaning given in Section 3.1.
"BUSINESS PLAN" means that certain Bendata Business Overview 1998.
"BUYER" means Bendata Holding, Inc., a Delaware corporation.
"BUYER REQUIRED STATUTORY APPROVALS" shall have the meaning given in
Section 4.2.
"CANADA COMPANY SHARES" shall have the meaning given in Section 3.2(e).
"CHARTER DOCUMENTS" shall have the meaning given in Section 3.1.
"CLAIM NOTICE" means a written notice in reasonable detail of the facts and
circumstances that form the basis of an indemnification claim hereunder and
setting forth an estimated amount of the potential Losses, if possible, and the
sections of this Agreement upon which the claim for indemnification for such
Losses is based.
"CLOSING" means the closing of the Transaction.
"CLOSING DATE" shall have the meaning given in Section 2.3.
"CODE" means the Internal Revenue Code of 1986, as amended. All citations
to the Code, or to the Treasury Regulations promulgated thereunder, shall
include any amendments or any substitute or successor provisions thereto.
"COMPANY" means Bendata and the LLC.
"COMPANY DISCLOSURE SCHEDULE" shall mean a document referring specifically
to the representations and warranties in this Agreement that is delivered by
Company and Seller to Buyer prior to the execution of this Agreement.
"COMPANY FINANCIAL STATEMENTS" shall have the meaning given in Section 3.5.
"COMPANY INTELLECTUAL PROPERTY" shall have the meaning given in Section
3.12.
"COMPANY REQUIRED STATUTORY APPROVALS" shall have the meaning given in
Section 3.4(c).
"COMPANY SHARES" means the issued and outstanding shares of capital stock
of Bendata.
"COMPANY VOTING DEBT" shall have the meaning given in Section 3.2.
"CONFIDENTIAL INFORMATION" shall have the meaning given in Section 13.8.
"CONSENT" means a consent, approval, Order, or authorization of, or
registration, declaration, or filing with, or exemption by a Governmental
Entity.
"COUNTERNOTICE" means a written objection to a claim or payment setting
forth the basis for disputing such claim or payment.
"DOCUMENTATION" shall have the meaning given in Section 3.12.
"EFFECTIVE DATE" shall mean July 1, 1998.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"ENVIRONMENTAL LAWS" shall have the meaning given in Section 3.17.
"GAAP" means generally accepted accounting principles consistently applied.
"GOVERNMENTAL ENTITY" means a court, administrative agency, or commission
or other governmental authority or instrumentality, whether domestic or foreign.
"GREEN SHARK TOOL" shall have the meaning given in Section 7.8.
"HAZARDOUS SUBSTANCES" shall have the meaning given in Section 3.17.
"HSR ACT" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976,
as amended.
"IXCHANGE" means Ixchange Technology Holdings Limited, a South Africa
corporation.
"KNOWLEDGE" in reference to Company means that the officers, directors,
employees, attorneys, accountants and investment bankers of Company and Seller
who could reasonably be expected to know of
a matter if it existed have reviewed the specific representation and warranty
and the related Company Disclosure Schedule to which such knowledge statement is
made, and, in so doing, have exercised reasonable due diligence, and based upon
the foregoing, such persons are not aware and have no reason to be aware of any
inaccuracies in such specific representation and warranty and related Company
Disclosure Schedule with respect to which such knowledge statement is made.
"LETTER OF CREDIT" shall have the meaning given in Section 2.1.
"LLC" means Bendata (Europe) Limited LLC, a Colorado limited liability
company.
"LLC INTEREST" shall have the meaning given in Section 3.2.
"LEASED PREMISES" shall have the meaning given in Section 3.16.
"LOSSES" shall mean direct and actual losses, damages, liabilities, claims,
judgments, settlements, fines, costs, and expenses (including reasonable
attorneys' fees) of any kind, net of any insurance proceeds, but excluding all
indirect and/or consequential damages of any kind.
"NETWORK" means Network Data, Inc., a Delaware corporation wholly owned by
Astea.
"ORDER" means a decree, judgment, injunction, ruling, or other order of a
Governmental Entity having jurisdiction, whether temporary, preliminary, or
permanent.
"PAYMENT CERTIFICATE" shall mean a written claim for payment of Losses, in
reasonable detail and specifying the amount of such Losses.
"PLAN" shall mean an employee bonus, profit sharing, retirement, stock
purchase, stock option, recapitalization, insurance, medical, life, disability,
severance, or other benefit plan.
"POST-CLOSING PERIOD" means, with respect to the Company, any Tax Period
commencing after the Closing Date and the portion of any Straddle Period
commencing after the Closing Date.
"PRE-CLOSING PERIOD" means, with respect to the Company, any Tax Period
ending on or before the Closing Date and the portion of any Straddle Period
ending on the Closing Date.
"PROMISSORY NOTE" shall have the meaning given in Section 2.1.
"PURCHASE PRICE" shall have the meaning given in Section 2.1.
"REAL PROPERTY" shall have the meaning given in Section 3.17.
"REIMBURSEMENT PROMISSORY NOTE" shall have the meaning given in Section
2.1.
"RETURNS" means all returns, information statements, declarations, reports,
statements and other documents required to be filed in respect of Taxes, and any
claims for refunds of Taxes, including any amendments or supplements to any of
the foregoing. The term "Return" means any one of the foregoing Returns.
"RETURN PERIODS" shall have the meaning given in Section 3.8.
"SECTION 338(H)(10) ELECTION" means the joint election by Buyer and Seller
pursuant to Section 338(h)(10) of the Code and as described in Section 5.6,
below.
"SELLER" means Astea and Network.
"SOFTWARE" shall have the meaning given in Section 3.12.
"STRADDLE PERIOD" means, with respect to the Company, any Tax Period that
begins before and ends after the Closing Date.
"STUB BALANCE SHEET" shall have the meaning given in Section 3.5.
"STUB PERIOD DATE" shall have the meaning given in Section 3.5.
"SUBSIDIARY" shall have the meaning given in Section 3.1.
"TAX" or "TAXES" means any income, corporation, gross receipts, profits,
gains, capital stock, capital duty, franchise, withholding social security,
unemployment, disability, property, wealth, welfare, stamp, excise, occupation,
sales, use, value added, alternative minimum, estimated or other similar tax
(including any fee, assessment or other charge in the nature of or in lieu of
any tax) imposed by any governmental entity (whether national, local, municipal
or otherwise) or political subdivision thereof, and any interest penalties,
additions to tax or additional amounts in respect of the foregoing, and
including any transferee or secondary liability in respect of any tax (whether
imposed by law, contractual agreement or otherwise) and any liability in respect
of any tax as a result of being a member of any affiliated, consolidated,
combined, unitary or similar group, including any liability for taxes under
Treas. Reg. (S) 1.1502-6 (or any similar provision of state, local or foreign
law).
"TAX PERIOD" means, with respect to any tax, the period for which the Tax
is reported as provided under applicable tax law.
"TAX REIMBURSEMENT" shall have the meaning given in Section 2.1.
"TRANSACTION" shall mean the purchase of the Company Shares including LLC
Interest by Buyer pursuant to the terms of this Agreement.
"THRESHOLD AMOUNT" shall have the meaning given in Section 9.6.
"VIOLATION" shall have the meaning given in Section 3.4.
"YEAR 2000 COMPLIANT" shall have the meaning given in Section 3.12(h)
ARTICLE II
PURCHASE OF COMPANY SHARES AND MEMBERSHIP INTEREST
2.1 PURCHASE OF SHARES AND MEMBERSHIP INTEREST. In consideration for the
sale, assignment and transfer of the Company Shares, including the LLC Interest,
and the representations, warranties, and covenants contained herein, Buyer
agrees to pay to Network the aggregate amount of Forty Two Million Five Hundred
Thousand US Dollars (US$42,500,000) and to pay to Network the incremental tax
cost resulting from the Section 338(h)(10) Election, provided such cost shall
not exceed $900,000 ("Tax Reimbursement") (together, "PURCHASE PRICE"). Thirty-
Five Million US Dollars
($35,000,000) of the Purchase Price shall be payable at Closing by wire transfer
of immediately available funds and shall be payable to Network (or as directed
in writing by Astea). Seven Million Five Hundred Thousand US Dollars
(US$7,500,000) of the Purchase Price shall be payable on the one year
anniversary of the Closing Date pursuant to the terms of a promissory note
substantially in the form attached hereto as Exhibit 2.1(a) and incorporated by
this reference ("PROMISSORY NOTE"). The Promissory Note shall provide, among
other things, that interest shall be based on the 1 year treasury note rate as
published in the Wall Street Journal two (2) days prior to the Closing Date and
that all fees and charges associated with or charged by the financial
institution with respect to the Letter of Credit shall be deducted from the
interest payment due under the Promissory Note. Payment under the Promissory
Note shall be subject to offset rights in Section 9.7. The Tax Reimbursement
shall be calculated by Seller and shall be submitted to Buyer for approval.
Seller and Buyer may use their respective accounting firms in order to
calculate, determine and review the Tax Reimbursement. In the event that Seller
and Buyer cannot agree as to the amount of the Tax Reimbursement within ten (10)
days of submission to Buyer then Buyer and Seller shall promptly instruct their
respective accounting firms to designate a third accounting firm of
internationally recognized standing, which (acting as experts and not
arbitrators) shall be instructed to calculate, as soon as practicable after the
matter is referred to such firm, the Tax Reimbursement and such calculation
shall be final and binding on the parties. The costs and expenses of such third
accounting firm shall be equally borne by the parties. The Tax Reimbursement
shall be payable on the one year anniversary of the Closing Date pursuant to the
terms of a promissory note substantially in the form of the Promissory Note
except that no interest shall accrue on such promissory note ("Reimbursement
Promissory Note"). Payment under the Reimbursement Promissory Note shall be
subject to offset rights in Section 9.7. The Promissory Note and the
Reimbursement Promissory Note shall be secured by a letter of credit ("LETTER OF
CREDIT"). The Letter of Credit shall be obtained from American Express Co. Inc.,
Key Bank National Association, (a subsidiary of KeyCorp), Seafirst Bank ( a
subsidiary of Bank of America N.T.S.A., Union Bank of California, (a subsidiary
of Bank-Mitsubishi Ltd and UnionBankCal Corporation), or US Bank, (a subsidiary
of US Bancorp - Portland OR, and a subsidiary of First Bank Systems -
Minneapolis MN) or such other unaffiliated financial institution based in the
United States with a credit rating equal to or better than the aforementioned
financial institutions. The Letter of Credit will contain draw instructions
substantially in the form attached hereto as Exhibit 2.1(b).
2.2 CLOSING AND EFFECTIVE DATE. The Closing will take place as soon as
practicable on the fifth business day after satisfaction or waiver of the last
to be fulfilled of the conditions set forth in Article VIII that by their terms
are not to occur at the Closing (the "CLOSING DATE"), at the offices of Xxxxxxx
Xxxxx & Xxxxx LLP, 000 Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxxxx, unless
another date or place is agreed to in writing by the parties hereto. The
transfer of the Company Shares to Buyer shall be effective as of the Effective
Date. The parties intend that, except as otherwise provided in this Agreement,
Buyer shall be entitled to all benefits of ownership of the Company Shares and
the LLC Interest, including the benefit for financial accounting purposes of all
revenues and income, and the burden of all expenses incurred in the ordinary
course of business consistent with this Agreement, of the Company, as of the
Effective Date.
2.3 DELIVERY OF CERTIFICATES. At the Closing, each holder of a certificate
or certificates representing Company Shares shall surrender such certificates to
Buyer, together with such duly executed documentation as may be reasonably
required by Buyer to effect a transfer of such Company Shares.
2.4 CLOSING DATE DELIVERIES.
(a) On the Closing Date, Seller, Bendata and the LLC shall deliver to
Buyer the following validly executed instruments:
(i) Copy of the Articles of Incorporation of Bendata, certified as
of a recent date by the Colorado Secretary of State;
(ii) Certificate of Good Standing of Bendata issued as of a recent
date by the Colorado Secretary of State;
(iii) Copy of the Articles of Organization of the LLC, certified as
of a recent date by the Colorado Secretary of State;
(iv) Certificate of Good Standing of the LLC issued as of a recent
date by the Colorado Secretary of State;
(v) Certified copy of resolutions of the Board of Directors and
shareholder of Bendata authorizing the execution and performance of this
Agreement and the Transaction contemplated hereby;
(vi) Certified copy of resolutions of the member of the LLC
authorizing the execution and performance of this Agreement and the Transaction
contemplated hereby;
(vii) Officer's Certificate of Bendata and Astea, dated as of the
Closing Date, in form and substance reasonably satisfactory to Buyer, certifying
as to (w) no amendments to the Articles of Incorporation of Bendata since a
specified date; (x) the Bylaws of Bendata; (y) the resolutions of the Board of
Directors and shareholder of Bendata authorizing the execution and performance
of this Agreement and the Transaction contemplated hereby; and (z) the
incumbency and signatures of the officers of Bendata executing this Agreement
and any agreement executed and delivered in connection herewith;
(viii) Member's Certificate of the LLC, dated as of the Closing Date,
in form and substance reasonably satisfactory to Buyer, certifying as to (w) no
amendments to the Articles of Organization of the LLC since a specified date;
(x) the Operating Agreement of the LLC; (y) the resolutions of the Managers of
the LLC authorizing the execution and performance of this Agreement and the
Transaction contemplated hereby; and (z) the incumbency and signatures of the
managers of the LLC executing this Agreement and any agreement executed and
delivered in connection herewith;
(ix) Opinions of Holme, Xxxxxxx & Xxxx LLP and Xxxxx, Xxxxxxx &
Xxxxxxxxx, LLP, counsels to Company and Seller required by Section 8.2.3;
(x) The documents required by Sections 5.5(e) and 5.5(f) hereof;
(xii) The closing certificate required by Sections 8.3.1 and 8.3.2;
(xiii) Resignations of the managers of the LLC;
(xiv) Resignations of the members of the Board of Directors of
Bendata and resignations of Xxxx X. Xxxxxxxx and Xxxxxx X.
Xxxxxxxx, Xx. from their positions as officers of Bendata; and
(xv) Such other instruments or documents necessary or reasonably
desirable to consummate the Transaction, all satisfactory in form and substance
to Buyer.
(b) On the Closing Date, Ixchange and Buyer shall deliver to Seller the
following validly executed instruments:
(i) Thirty-Five Million US Dollars ($35,000,000) payable to Network
(or other designees identified by Astea in writing prior to the Closing) by wire
transfer of immediately available funds;
(ii) The Promissory Note;
(iii) The Letter of Credit;
(iv) Copy of the Certificate of Incorporation of Buyer, certified as
of a recent date by the Delaware Secretary of State;
(v) Certificate of Good Standing of Buyer issued as of a recent
date by the Delaware Secretary of State;
(vi) Certified copy of resolutions of the Board of Directors of
Buyer and Ixchange authorizing the execution and performance of this Agreement
and the Transaction contemplated hereby;
(vii) Officer's Certificate of Buyer, dated as of the Closing Date,
in form and substance reasonably satisfactory to Seller, certifying as to (w) no
amendments to the Certificate of Incorporation of Buyer and Ixchange since a
specified date; (x) the Bylaws of Buyer and Ixchange; (y) the resolutions of the
Board of Directors of Buyer and Ixchange authorizing the execution and
performance of this Agreement and the Transaction contemplated hereby; and (z)
the incumbency and signatures of the officers of Buyer and Ixchange executing
this Agreement and any agreement executed and delivered in connection herewith;
(viii) Opinion of Xxxxxxx Xxxxx & Xxxxx LLP, counsel to Buyer as
required by Section 8.3.3;
(ix) The closing certificate required by Sections 8.2.1 and 8.2.2;
and
(x) Such other instruments or documents necessary or desirable to
consummate the Transaction, all satisfactory in form and substance to Buyer.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF COMPANY AND SELLER
Except as disclosed in a document referring specifically to the
representations and warranties in this Agreement which identifies by section
number the section and subsection to which such disclosure relates (provided
that Seller shall not be deemed responsible for nondisclosure of an item or
condition with respect to a particular section or subsection if disclosure under
another section or subsection reasonably informed Buyer and Ixchange of the
nature of the item or condition as required by such other section or subsection)
and is delivered by Company (which for purposes of these representations and
warranties shall include all entities which directly or indirectly through one
or more intermediaries is controlled by Company) to Buyer prior to the execution
of this Agreement (the "COMPANY DISCLOSURE SCHEDULE"), and whether or not the
Company Disclosure Schedule is referred to in a specific section or subsection,
Company and Seller, jointly and severally, represent and warrant to Buyer as
follows:
3.1 ORGANIZATION, STANDING, AND POWER. Bendata is a corporation duly
organized, validly existing, and in good standing under the laws of the state of
Colorado. The LLC is a limited liability company duly organized, validly
existing and in good standing under the laws of the state of Colorado. Bendata
Canada Limited is a corporation duly organized, validly existing, and in good
standing under the laws of Canada. Company has all requisite power and authority
to own, lease, and operate its properties and to carry on its businesses as now
being conducted, and is duly qualified, validly existing and in good standing
(in such jurisdictions in which good standing is applicable) to do business in
each jurisdiction in which a failure to so qualify would have a material adverse
effect on the Business Condition (as hereinafter defined) of Company. As used in
this Agreement, "BUSINESS CONDITION" with respect to any entity shall mean the
business, financial condition, results of operations or assets. In this
Agreement, a "SUBSIDIARY" of any corporation or other entity means a
corporation, partnership, limited liability company, or other entity of which
such corporation or entity directly or indirectly owns or controls voting
securities or other interests that are sufficient to elect a majority of the
Board of Directors or other managers of such corporation, partnership, limited
liability company or other entity. References to Company shall include all
Subsidiaries of Company unless the context specifically indicates otherwise.
Bendata has no Subsidiary except for Bendata Canada Limited, a Canadian
corporation which is a wholly-owned subsidiary of Bendata and except for the
LLC. Company has delivered to Buyer complete and correct copies of the articles,
certificate, bylaws, and/or other primary charter and organizational documents
("CHARTER DOCUMENTS") of Company, in each case, as amended to the date hereof.
The minute books and stock records of Company, complete and correct copies of
which have been delivered to Buyer, contain correct and complete records of all
material proceedings and actions taken at all meetings of, or effected by
written consent of, the shareholders of Bendata and its Board of Directors and
the members of the LLC, and all original issuances and subsequent transfers,
repurchases, and cancellations of Bendata's capital stock and the LLC's
membership interests. The Company Disclosure Schedule contains a complete and
correct list of the officers and directors of Company.
3.2 CAPITAL STRUCTURE.
(a) The authorized capital stock of Bendata consists of 1,000,000 shares
of common stock, $0.01 par value, ("COMPANY SHARES") of which 100 shares are
issued and outstanding. All of the outstanding Company Shares are held by
Network. There is no preferred stock of Bendata.. The shareholders listed on the
Company Disclosure Schedule are the lawful and beneficial owners of all of the
Company Shares as shown on such schedule and have valid title thereto, free and
clear of all liens and encumbrances, surety interests, restrictions on transfer
(other than restrictions under federal or state securities laws), claims, and
equities of every kind.
(b) All outstanding Company Shares are validly issued, fully paid,
nonassessable, were issued in compliance with applicable federal and state
securities laws and regulations, and not subject to any preemptive rights, or to
any agreement to which Company is a party or by which Company may be bound.
There are no options, warrants, calls, conversion rights, commitments,
agreements, contracts, understandings, restrictions, arrangements or rights of
any character to which Bendata is a party or by which Bendata may be bound
obligating Bendata to issue, deliver or sell, or cause to be issued, delivered
or sold, additional shares of the capital stock of Bendata, or obligating
Bendata to grant, extend, or enter into any such option, warrant, call,
conversion right, conversion payment, commitment, agreement, contract,
understanding, restriction, arrangement or right. Bendata does not have
outstanding any bonds, debentures, notes, or other indebtedness the holders of
which, (i) have the right to vote (or convertible or exercisable into securities
having the right to vote) with holders of Company Shares on any matter ("COMPANY
VOTING DEBT"), or (ii) are or will become entitled to receive any payment as a
result of the execution of this Agreement or the completion of the transactions
contemplated hereby.
(c) Bendata is the sole member of the LLC. The member listed on the
Company Disclosure Schedule is the lawful and beneficial owner of all the
membership interest (the "LLC INTEREST") as shown on such schedule and has valid
title thereto, free and clear of all liens and encumbrances, surety interests,
restrictions on transfer (other than restrictions under federal or state
securities laws), claims and equities of every kind.
(d) There are no options, warrants, calls, conversion rights, commitments,
agreements, contracts, understandings, restrictions, arrangements or rights of
any character to which the LLC is a party or by which the LLC may be bound
obligating the LLC to issue, deliver or sell, or cause to be issued, delivered
or sold, additional interests of the LLC, or obligating the LLC to grant,
extend, or enter into any such option, warrant, call, conversion right,
conversion payment, commitment, agreement, contract, understanding, restriction,
arrangement or right. The LLC does not have outstanding any bonds, debentures,
notes or other indebtedness the holders of which, (i) have the right to vote (or
convertible or exercisable into securities having the right to vote) with the
member of the LLC, or (ii) are or will become entitled to receive any payment as
a result of the execution of this Agreement or the completion of the
transactions contemplated hereby.
(e) The authorized capital stock of Bendata Canada Limited consists an
unlimited number of common shares and an unlimited number of non-cumulative,
non-voting, redeemable Class 'A' preference shares, ("CANADA COMPANY SHARES") of
which no shares are issued and outstanding. There are no options, warrants,
calls, conversion rights, commitments, agreements, contracts, understandings,
restrictions, arrangements or rights of any character to which Bendata or
Bendata Canada Limited is a party or by which Bendata or Bendata Canada Limited
may be bound obligating Bendata Canada Limited to issue, deliver or sell, or
cause to be issued, delivered or sold, additional shares of the capital stock of
Bendata Canada Limited, or obligating Bendata Canada Limited to grant, extend,
or enter into any such option, warrant, call, conversion right, conversion
payment, commitment, agreement, contract, understanding, restriction,
arrangement or right. Bendata Canada Limited does not have outstanding any
bonds, debentures, notes, or other indebtedness the holders of which, (i) have
the right to vote (or convertible or exercisable into securities having the
right to vote) with holders of Canada Company Shares on any matter, or (ii) are
or will become entitled to receive any payment as a result of the execution of
this Agreement or the completion of the transactions contemplated hereby.
3.3 AUTHORITY. Company and Seller have, or shall have prior to the
Closing, all requisite corporate power and authority to enter into this
Agreement and, subject to the Company's Required Statutory Approvals, to
consummate the transactions contemplated hereby. As used in this Agreement
"COMPANY'S REQUIRED STATUTORY APPROVALS" means such filings, authorizations,
Orders and approvals as may be required under federal or foreign laws, or
securities laws. The execution and delivery by Company and Seller of this
Agreement and the consummation of the transactions contemplated hereby have been
duly authorized by all necessary corporate action on the part of Company and
either corporate Seller, including the approval of the Board of Directors and
sole shareholder of Bendata. This Agreement has been duly executed and delivered
by Company and Seller and constitutes a valid and binding obligation of Company
and Seller enforceable in accordance with its terms, except that such
enforceability may be subject to (i) bankruptcy, insolvency, reorganization, or
other similar laws relating to enforcement of creditors' rights generally and
(ii) general equitable principles, including the availability of specific
performance, injunctive relief and other equitable remedies.
3.4 COMPLIANCE WITH LAWS AND OTHER INSTRUMENTS.
(a) Company holds, and at all times has held, all licenses, permits, and
authorizations from all Governmental Entities necessary for the lawful conduct
of its business pursuant to all applicable statutes, laws, ordinances, rules,
and regulations of all such authorities having jurisdiction over it or any
part of its operations, excepting, however, when such failure to hold would not
have a material adverse effect on Company's Business Condition. There are no
material violations or claimed material violations of any such license, permit,
or authorization or any such statute, law, ordinance, rule or regulation.
Subject to the satisfaction of the conditions set forth in Section 8, neither
the execution and delivery of this Agreement and all other agreements
contemplated hereby by Company nor the consummation of the transactions
contemplated hereby and thereby will conflict with or result in any violation
of, or default (with or without notice or lapse of time, or both) under, or give
rise to a right of termination, cancellation, or acceleration of any material
obligation or to loss of a material benefit under, or the creation of a lien,
pledge, security interest, charge, or other encumbrance on the assets or
contracts of Company or the Company Shares or the LLC Interest (any such
conflict, violation, default, right, loss or creation being referred to herein
as a "VIOLATION") pursuant to, (i) any provision of the Articles of
Incorporation or Bylaws of Company or the comparable governing instruments, or
(ii) any loan or credit agreement, note, bond, mortgage, indenture, contract,
lease, or other agreement or instrument, permit, concession, franchise, license,
Order, statute, law, ordinance, rule or regulation applicable to any Company or
its respective properties or assets, other than, in the case of (ii), any such
Violation which individually or in the aggregate would not have a material
adverse effect on the Business Condition of Company.
(b) No Consent by any Governmental Entity is required by or with respect
to Company in connection with the execution and delivery of this Agreement and
all other agreements contemplated hereby by Company or the consummation by
Company of the transactions contemplated hereby.
3.5 FINANCIAL STATEMENTS. Company has delivered to Buyer the balance
sheets and statements of income of Company, as of and for the years ended 1995,
1996 and 1997. An unqualified opinion regarding the balance sheets and
statements of income of Company for the year ended 1995 has been expressed by
Xxxxxx Xxxxxxxx LLP, Company's independent public accountants, whose opinion
with respect to such financial statement was provided to Buyer. Company
Disclosure Schedule sets forth the unaudited and unreviewed balance sheets of
Company as of June 30, 1998 (the "STUB PERIOD DATE") together with the related
unaudited and unreviewed statements of income for the six months then ending,
certified by the controller of Company. The financial statements as described
above are the "COMPANY FINANCIAL STATEMENTS." The balance sheet as of the Stub
Period Date is the "STUB BALANCE SHEET." The Financial Statements, (a) have been
prepared in accordance with GAAP throughout the periods indicated and in prior
periods, (b) except for normal year-end adjustments with regard to the Stub
Balance Sheet, fairly present the financial position of Company, as of the
respective dates indicated and the results of its operations for the respective
periods indicated, and (c) were prepared from the books and records of Company,
which books and records are complete and correct and accurately reflect in all
material respects the transactions of and other events applicable to Company.
There are no liabilities or obligations (whether absolute, accrued or
contingent) except, (i) liabilities that are accrued or reserved against in the
Stub Balance Sheet, or (ii) additional liabilities reserved against since the
Stub Period Date that (x) have arisen in the ordinary course of business; and
(y) are accrued or reserved against on the books and records of Company.
3.6 Accounts Receivable. All of the accounts receivable shown on the
balance sheets included in the Financial Statements as of Stub Period Date have
been collected or are good and collectible in the aggregate recorded amounts
thereof (less the allowance for doubtful accounts also appearing in such balance
sheet and net of returns and payment discounts allowable by Company's standard
policies) and can reasonably be anticipated to be paid in full without outside
collection efforts within one hundred twenty (120) days of the due date, and are
not subject to counterclaims or setoffs in excess of recorded reserves.
3.7 ABSENCE OF CERTAIN CHANGES AND EVENTS. Since May 31, 1998, and for
purposes of subsections (h) and (i) only, since June 30, 1998, there has not
been:
(a) Any change (or any development or combination of developments of
which, to the Company's Knowledge, is reasonably likely to result in such a
change) in Company's Business Condition, other than changes in the ordinary
course of business which in the aggregate have not been and will not have a
material adverse effect on Company's Business Condition; or, without limiting
the foregoing, any loss of or damage to any of the properties of Company due to
fire or other casualty or other loss, whether or not insured, amounting to more
than $10,000 in the aggregate;
(b) Any declaration, payment, or setting aside of any dividend or other
distribution (including tax distributions) to or for any of the shareholders of
Company of any Company Shares or cash or payment obligations or any payment of
fees or costs to any third party, including management fees, administrative
fees, royalties or license fees;
(c) Any termination, modification, or rescission of, or waiver by Company
of rights under, any existing contract having or likely to have a material
adverse effect on Company's Business Condition;
(d) Capital expenditure or transaction by Company exceeding $25,000;
(e) Entering into or assumption of any material contract or obligation by
Company, except in the ordinary course of business (none of which would have a
material adverse effect on the Company's Business Condition);
(f) Revaluation by Company of any of its assets;
(g) Granting of stock options, restricted stock awards, stock bonuses,
stock appreciation rights and similar equity based awards relating to the
capital stock of Bendata;
(h) Except for normal yearly adjustments, none of which exceed $4,000 per
year, increase in the salary or other compensation payable or to become payable
by Company to any of its officers, directors or employees, or the declaration,
payment or commitment or obligation of any kind for the payment of a bonus or
other additional salary or compensation to any such individual;
(i) Amendment or termination of any contract or license to which Company
is a party or by which it or any of its assets is or may be bound, except in the
ordinary course of business (none of which is would have a material adverse
effect on the Business Condition of Company); or
(j) Any mortgage, pledge, imposition of any security interest, claim,
encumbrance, or other restriction on any of the assets, tangible or intangible,
of Company having or likely to have a material adverse effect on Company's
Business Condition.
3.8 TAXES.
(a) All Returns required to be filed on or prior to the date hereof have
been properly completed and filed on a timely basis and in correct form in all
material respects. As of the time of filing, the foregoing Returns correctly
reflected the facts regarding the income, business, assets, operations,
activities, status or other matters of Company or any other information required
to be shown thereon. In particular, and without in any manner limiting the
foregoing, none of the foregoing Returns contains any position which is or would
be subject to penalties under section 6662 of the Code (or any corresponding
provision of state, local or foreign Tax law). An extension of time within which
to file any Return which has not been filed has not been requested or granted.
To the Knowledge of Seller, there is no
investigation or other proceeding pending, threatened or expected to be
commenced by any taxing authority for any jurisdiction in which Company does not
file tax returns that may lead to an assertion that the Company is or may be
subject to a given Tax liability in such jurisdiction, and, to Company's or
Astea's Knowledge, there is no meritorious basis for such an investigation or
other proceeding that would result in such an assessment. Company has provided
to Buyer true and correct copies of all Returns, reports, work papers and other
tax data reasonably requested by Buyer.
(b) With respect to all amounts in respect of Taxes imposed upon Company,
or for which Company is or could be liable, whether to taxing authorities (as,
for example, under law) or to other persons or entities (as, for example, under
tax allocation agreements), with respect to all taxable periods (or portions
thereof) ending on or before the Closing Date, all applicable tax laws and
agreements have been fully complied with, and all such amounts required to be
paid by Company to taxing authorities or others on or before the date hereof
have been paid. No issues have been raised (and are currently pending) by any
taxing authority in connection with any Returns of Company. No waivers of
statutes of limitation with respect to such Returns have been given by or
requested from Company. There are no outstanding rulings of, or requests for
rulings with, any Tax authority addressed to Company that are, or if issued
would be, binding on Company. The Company Disclosure Schedule sets forth (A) the
taxable years of Company as to which the respective statutes of limitations with
respect to Taxes have not expired, and (B) with respect to such taxable years,
sets forth those years for which examinations have been completed, those years
for which examinations are presently being conducted, those years for which
examinations have not been initiated, and those years for which required Returns
have not yet been filed. Except to the extent shown on the Company Disclosure
Schedule, all deficiencies asserted or assessments made as a result of any
examinations have been fully paid, or are fully reflected as a liability in the
financial statements of Company, or are being contested and an adequate reserve
therefor has been established and is fully reflected in the financial statements
of Company.
(c) There are no liens for Taxes (other than for current Taxes not yet due
and payable) upon the assets of Company. Company is not a party to or bound by
(nor will Company, prior to the Closing, become a party to or bound by) any tax
indemnity, tax sharing or tax allocation agreement or arrangement. Except for
the group of which Seller is presently a member, Company has never been a member
of an affiliated group of corporations, within the meaning of section 1504 of
the Code, other than as a common parent corporation, and each of the
subsidiaries of Company has never been a member of an affiliated group of
corporations, within the meaning of section 1504 of the Code, except where
Company was the common parent corporation of such affiliated group.
(d) Seller has filed a consolidated federal income tax return with Bendata
for the taxable year immediately preceding the current taxable year and Seller
is eligible to make an election under section 338(h)(10) of the Code (and any
comparable election under state, local or foreign tax law) with respect to
Bendata. For U.S. federal income tax purposes, LLC is disregarded and Bendata
is viewed as directly owning the assets of LLC.
(e) All material elections with respect to Taxes affecting Company as of
the date hereof are set forth in the Company Disclosure Schedule. After the date
hereof, no election with respect to Taxes will be made without the written
consent of Buyer. None of the assets of Company is property that Company is
required to treat as being owned by any other person pursuant to the so-called
"safe harbor lease" provisions of former section 168(f)(8) of the Code. None of
the assets of Company directly or indirectly secures any debt the interest on
which is tax exempt under section 103(a) of the Code. None of the assets of
Company is "tax-exempt use property" within the meaning of section 168(h) of the
Code. Company has not made nor is bound by any election under Section 197 of the
Code. No consent or agreement has been made under section 341 of the Code by or
on behalf of Company or any predecessor
thereof. Company has not participated in, or cooperated with, an international
boycott within the meaning of Section 999 of the Code.
(f) Company is not a party to any agreement, contract, arrangement or plan
that has resulted or would result, separately or in the aggregate, in the
payment of any "excess parachute payments" within the meaning of section 280G of
the Code or any similar provision of foreign, state or local law. Company is
not, and has not been, a United States real property holding corporation (as
defined in section 897(c)(2) of the Code) during the applicable period specified
in section 897(c)(1)(A)(ii) of the Code. Seller is not a person other than a
United States person within the meaning of the Code. The transactions
contemplated herein are not subject to the tax withholding provisions of Code
section 3406, or of subchapter A of Chapter 3 of the Code or of any other
provision of law. Company is not a party to any joint venture, partnership, or
other arrangement or contract which could be treated as a partnership for
federal income tax purposes.
(g) Company does not have and has not had a permanent establishment in any
foreign country, as defined in any applicable Tax treaty or convention between
the United States of America and such foreign country.
(h) The unpaid Taxes of Company do not exceed the reserve for Tax
liability (excluding any reserve for deferred Taxes established to reflect
timing differences between book and Tax income) set forth or included in
Company's Stub Balance Sheet as adjusted for the passage of time through the
Closing Date in accordance with the past custom and practice of the Company.
(i) Each asset with respect to which Company claims depreciation,
amortization or similar expense for Tax purposes is owned for Tax purposes by
Company. No item of income or gain reported by Company for financial accounting
purposes in any pre-closing period is required to be included in taxable income
for a post-closing period.
(j) Bendata, prior to its merger with Astea, was continuously a Subchapter
S corporation since its incorporation.
3.9 EMPLOYEES. Company does not have any written contract of employment
or other employment agreement with any of its employees that is not terminable
at will without payment of any consideration by Company. Company is not a party
to any pending, or to Company's Knowledge, threatened, labor dispute. Company
has complied in all material respects with all applicable federal, state, and
local laws, ordinances, rules, and regulations and requirements relating to the
employment of labor, including but not limited to the provisions thereof
relating to wages, hours, collective bargaining, payment of Social Security,
unemployment, and withholding taxes, and ensuring equality of opportunity for
employment and advancement of minorities and women. There are no claims pending,
or, to the Knowledge of Company, threatened to be brought, in any court or
administrative agency by any former or current Company employees for
compensation, pending severance benefits, vacation time, vacation pay or pension
benefits, or any other claim pending in any court or administrative agency from
any current or former employee or any other person arising out of Company's
status as employer, whether in the form of claims for employment discrimination,
harassment, unfair labor practices, grievances, wrongful discharge, or
otherwise.
3.10 EMPLOYEE BENEFIT PLANS. Each employee benefit plan ("PLAN") covering
active, former, or retired employees of Company is listed in the Company
Disclosure Schedule. Company has made available to Buyer a copy of each Plan,
and where applicable, any related trust agreement, annuity, or insurance
contract, and to the extent applicable, the three most recent annual reports
(Form 5500) filed with the Internal Revenue Service. To the extent applicable,
each Plan either is exempt from or complies,
in all material respects, with the requirements of the Employee Retirement
Income Security Act of 1974 as amended ("ERISA"), and the Code, and any Plan
intended to be qualified under Section 401(a) of the Code has been determined by
the Internal Revenue Service to be so qualified and has remained tax-qualified
to this date and its related trust is tax-exempt and has been so since its
creation. No Plan is covered by Title IV of ERISA or Section 412 of the Code. No
"PROHIBITED TRANSACTION," as defined in ERISA Section 406 or Code Section 4975
has occurred with respect to any Plan. Each Plan has been maintained and
administered in compliance with its terms and with the requirements prescribed
by any and all statutes, orders, rules and regulations, including but not
limited to ERISA and the Code, which are applicable to such Plans. There are no
pending or anticipated claims against or otherwise involving any of the Plans
and no suit, action, or other litigation (excluding claims for benefits incurred
in the ordinary course of Plan activities) has been brought against or with
respect to any Plan. All contributions, reserves, or premium payments to the
Plan, accrued to the date hereof have been made or provided for. Company has not
incurred any liability under Subtitle C or D of Title IV of ERISA with respect
to any "SINGLE-EMPLOYER PLAN," within the meaning of Section 4001(a)(15) of
ERISA, currently or formerly maintained by Company, or any entity which is
considered one employer with Company under Section 4001 of ERISA. Company has
not incurred any withdrawal liability under Subtitle E of Title IV of ERISA with
respect to any "MULTIEMPLOYER PLAN," within the meaning of Section 4001(a)(3) of
ERISA. There are no restrictions on the rights of Company to amend or terminate
any Plan without incurring any liability thereunder. Company has not engaged in
or is a successor or parent corporation to an entity that has engaged in a
transaction described in ERISA Section 4069. There have been no amendments to,
written interpretation of, or announcement (whether or not written) by Company
relating to, or change in employee participation or coverage under, any Plan
that was not provided to Buyer. Neither Company nor any of its ERISA affiliates
have any current or projected liability in respect of post-employment or post-
retirement welfare benefits for retired or former employees of Company other
than health care continuation benefits required to be provided under applicable
law. No tax under Section 4980B of the Code has been incurred in respect of any
Plan that is a group health plan, as defined in Section 5000(b)(1) of the Code.
3.11 CERTAIN AGREEMENTS. Neither the execution and delivery of this
Agreement and all other agreements contemplated hereby, nor the consummation of
the transactions contemplated hereby will: (i) result in any payment by Company
(including, without limitation, severance, unemployment compensation, parachute
payment, bonus or otherwise) becoming due to any director, employee, or
independent contractor of Company under any Plan, agreement, or otherwise, (ii)
increase any benefits otherwise payable under any Plan or agreement, or (iii)
result in the acceleration of the time of payment or vesting of any such
benefits.
3.12 TECHNOLOGY AND INTELLECTUAL PROPERTY RIGHTS.
(a) The "COMPANY INTELLECTUAL PROPERTY" consists of the following:
(i) all copyrights, patents, trademarks, trade names, service
marks, trade dress, mask works and any renewal rights or applications therefor,
net lists, schematics, technology, manufacturing processes, supplier lists,
trade secrets, know-how, moral rights, computer software programs, applications
and registrations for any of the foregoing;
(ii) all software and firmware listings, and updated software source
code and object code, and complete system build software and instructions
related to all software described in the Company Disclosure Schedule;
(iii) all documents, records and electronic files relating to design,
end user documentation, manufacturing, quality control, sales, marketing or
customer support for all intellectual property described herein;
(iv) all other tangible or intangible proprietary information and
materials; and
(v) all license and other rights in any third party product,
intellectual property, proprietary or personal rights, documentation, or
tangible or intangible property, including without limitation the types of
intellectual property and tangible and intangible proprietary information
described in (i) through (iv) above;
that are owned or held by or on behalf of Company or that are being, and/or have
been, used, sold, or are currently under development for use or sale, in the
business of Company as it has been, is currently or is currently planned or
under active consideration to be conducted as set forth in the Business Plan.
As used in this Agreement, "SOFTWARE" means any and all current and prior and
currently under development (as such development is set forth in the Business
Plan) versions and releases, and predecessors of the software and computer
programs and applications of the Company to the extent related to the business
as currently being conducted or as currently required or as reasonably can be
anticipated to be conducted in the future, including all such software and
computer programs in machine readable source code forms and in machine
executable object code forms and all related specifications (including all logic
architectures, algorithms and logic flows and all physical, functional,
operating and design parameters), any data used by or related to software, work
in progress relating to corrections, modifications, translations or
enhancements, all Company and third party development and test tools used to
develop or test the software, third party application program interfaces to the
software written by them and all methods of implementation and packaging,
together with all associated know-how and show-how and all related
Documentation. As used in this Agreement, "DOCUMENTATION" means all
documentation, specifications, manuals and other materials relating to the
software, including programmer and user manuals which are used by the Company to
install, operate, maintain, correct, test, repair, enhance, extend, modify,
prepare derivative works based upon design, develop, reproduce and package such
software.
(b) The Company Disclosure Schedule lists: (i) all patents, copyright
registrations, mask works, trademarks, service marks, trade dress, any renewal
rights for any of the foregoing, and any applications and registrations for any
of the foregoing, which are included in the Company Intellectual Property and
owned by or on behalf of Company; (ii) all hardware products and tools, software
products and tools, and services that are currently published, offered, or under
development by Company; and (iii) all licenses, sublicenses and other agreements
to which Company is a party and pursuant to which Company or any other person is
authorized to use the Company Intellectual Property or exercise any other right
with regard thereto. The disclosures described in (iii) hereof include the
identities of the parties to the relevant agreements, a description of the
nature and subject matter thereof.
(c) The Company Intellectual Property consists solely of items and rights
which are either: (i) owned by Company; (ii) in the public domain; or (iii)
rightfully used and authorized for use by Company and its successors pursuant to
a valid license. All Company Intellectual Property which consists of license or
other rights to third party intellectual property is set forth in the Company
Disclosure Schedule. Company has all rights in the Company Intellectual Property
necessary to carry out Company's current, former, and planned or scheduled
(whether for release or development) activities as such planned or scheduled
activities are described in the Business Plan, including rights to make, use,
exclude others from using, reproduce, modify, adapt, create derivative works
based on, translate, distribute (directly and indirectly), transmit, display and
perform publicly, license, rent, lease, assign, and
sell the Company Intellectual Property in all geographic locations and fields of
use in which the Company currently operates or is scheduled to operate in the
Business Plan, and to sublicense any or all such rights to third parties,
including the right to grant further sublicenses. All software created by
Company is as described in the Documentation and performs in all material
respects in accordance with the specification included in the Documentation. All
Documentation is sufficient and adequate to enable a person of reasonable skill
and experience in the relevant art to operate, modify and enhance the software.
(d) Company is not, nor as a result of the execution or delivery of this
Agreement and all other agreements contemplated hereby, or performance of
Company's obligations hereunder, will Company be, in violation of any license,
sublicense, or other agreement to which Company is a party or otherwise bound.
The Company Disclosure Schedule lists all contracts or agreements under which
Company is obligated to provide any consideration (whether financial or
otherwise) to any third party, or under which any third party otherwise would be
entitled to any consideration, with respect to any exercise of rights by Company
or Buyer in the Company Intellectual Property.
(e) The use, reproduction, modification, distribution, licensing,
sublicensing, sale, or any other exercise of rights in any product, work,
technology, service or process as used, provided, or offered at any time, or as
planned or scheduled for use in the Business Plan, reproduction, modification,
distribution, licensing, sublicensing, sale, or any other exercise of rights, by
Company does not infringe any copyright, trade secret, trademark, service xxxx,
trade name, trade dress, mask work, moral right, or other intellectual property
right, right of privacy, or right in personal data of any person, or, to the
Company's or Seller's Knowledge, any patent. No claims, (i) challenging the
validity, effectiveness, or ownership by Company of any of the Company
Intellectual Property, or (ii) to the effect that the use, reproduction,
modification, manufacturing, distribution, licensing, sublicensing, sale, or any
other exercise of rights in any product, work, technology, service, or process
as used, provided or offered at any time, or as planned or scheduled for use in
the Business Plan, reproduction, modification, distribution, licensing,
sublicensing, sale, or any other exercise of rights, by Company infringes or
will infringe on any intellectual property or other proprietary or personal
right of any person, have been asserted or, to the Knowledge of Company, are
threatened by any person nor to the knowledge of Company are there any valid
grounds for any bona fide claim of any such kind. All granted or issued patents
and mask works and all registered trademarks listed on the Company Disclosure
Schedule and all copyright registrations held by Company are valid, enforceable
and subsisting. To the Knowledge of Company, there is no unauthorized use,
infringement, or misappropriation of any of the Company Intellectual Property by
any third party, employee, or former employee.
(f) No parties other than Company possess any current or contingent rights
to any source code that is part of the Company Intellectual Property. None of
the Company Intellectual Property is subject to any escrow agreement.
(g) The Company Disclosure Schedule lists all parties who have created any
portion of, or otherwise have any rights in or to, the Company Intellectual
Property. Company has secured from all parties who have created any portion of,
or otherwise have any rights in or to, the Company Intellectual Property valid
and enforceable written assignments of any such work or other rights to Company
and has provided true and complete copies of such assignments to Buyer.
(h) All software is year 2000 Compliant ("YEAR 2000 COMPLIANT"). Year 2000
Compliant means date information that accurately processes date/time data
(including storing, calculating, comparing, and sequencing) from, into, and
between the twentieth and twenty-first centuries, the years 1999, 2000 and 2001
specifically, and the leap year calculations. In addition, Year 2000 compliant
products/components, when used in combination with other products/components,
shall accurately process date/time data if the other system properly exchanges
date/time data with it.
(i) The Company Disclosure Schedule includes a true and complete list of
support and maintenance agreements relating to Company Intellectual Property
including the identity of the parties entitled to receive such service or
maintenance and the term of such agreements.
(j) Company has obtained written agreements from all employees and third
parties with whom Company has shared confidential proprietary information, (i)
of Company, or (ii) received from others which Company is obligated to treat as
confidential, which agreements require such employees and third parties to keep
such information confidential. Company has delivered or given access to all
copies of such written agreements, as executed, to Buyer.
3.13 PERSONAL PROPERTY. Company has good and marketable title, free and
clear of all title defects, security interests, pledges, options, claims, liens,
encumbrances, and restrictions of any nature whatsoever (including leases,
chattel mortgages, conditional sale contracts, purchase money security
interests, collateral security arrangements, and other title or interest-
retaining agreements) to all inventory, receivables, furniture, machinery,
equipment, and other personal property, tangible or otherwise, reflected on the
balance sheet included in the Financial Statements or used in Company's business
as of the date of such balance sheet even if not reflected thereon, except for
acquisitions and dispositions since the Stub Period Date in the ordinary course
of business. The Company Disclosure Schedule lists (i) all computer equipment
and (ii) all other personal property having a depreciated book value of $5,000
or more, which are used by Company in the conduct of its business and all such
equipment and property, in the aggregate, is in good operating condition and
repair, reasonable wear and tear excepted.
3.14 MAJOR CONTRACTS. The Company Disclosure Schedule sets forth a
complete and accurate list of any contract (other than contracts under which no
party thereto has any remaining liability, absolute or contingent and other than
contracts included or listed in another Schedule):
(a) Between Company and any supplier, vendor, manufacturer, distributor,
reseller or customer with a term of six (6) months or greater or which would
result in annualized revenue of $10,000 or an expenditure of $5,000 per
purchase;
(b) Containing covenants purporting to limit Company's freedom to compete
in any line of business in any geographic location;
(c) Containing any rights of first offer or refusal, exclusivity, or most
favored nations provisions;
(d) Containing covenants for joint venture arrangements or which has
involved or is expected involve any sharing of profits;
(e) For the rendering of any consulting, programming or other services to
or by Company; and
(f) Which is not terminable at will by Company without liability and
without affecting Company, its financial condition, liabilities, assets,
business or properties, other than contracts entered into in the ordinary course
of business, no one of which involves obligations by or to Company of $5,000 or
more and which, in the aggregate, do not involve obligations by Company of more
than $30,000.
All such contracts, arrangements, plans, agreements, leases, licenses,
franchises, permits, indentures, authorizations, instruments, and other
commitments are, and upon assumption by Buyer shall
remain, valid and in full force and effect without the payment of any
consideration by Buyer and Company has not, nor, to the Knowledge of Company,
has any other party thereto, breached any material provisions of, or entered
into default in any material respect under the terms thereof. Company has not
received any notice that any party to any of such contracts intends to cancel or
terminate any of them or to exercise or not exercise any options under any of
them.
3.15 ASSETS SUFFICIENT TO OPERATE BUSINESS. The assets, Company
Intellectual Property, agreements and instruments being acquired pursuant to
this Agreement include all assets, Company Intellectual Property, agreements and
instruments of Company, used in the Company's business or intended for use or
inclusion in a release as described in the Business Plan and are sufficient to
operate Company's business as it is presently being conducted or as presently
under development. All such assets and Company Intellectual property are either
(a) owned by the Company or (b) leased or licensed from a non-Seller third party
by Company. All such agreements and instruments are in writing and have been
entered into by the Company and a non-Seller third-party and there are no oral
agreements. There are no agreements, contracts or understandings between Company
and Seller with respect to the use, sale or transfer of assets, Company
Intellectual Property, agreements and instruments being acquired pursuant to
this Agreement.
3.16 REAL PROPERTY. All real property deeds (for real property owned by
Company), leases and subleases as to which Company is a party and any amendments
or modifications thereof are listed on the Company Disclosure Schedule (each a
"LEASED PREMISES") are valid, in full force and effect and enforceable, and
there are no existing defaults, and Company has not received or given notice of
default or claimed default with respect to any Lease, nor is there any event
that with notice or lapse of time, or both, would constitute a default
thereunder.
3.17 ENVIRONMENTAL MATTERS.
(a) Neither Company nor, to the Knowledge of Company, any previous owner,
tenant, occupant or user of real property, used, owned or leased by Company (the
"REAL PROPERTY") has discharged or released on the Real Property any Hazardous
Material (as defined below) in violation of any federal, state or local statute,
regulation, rule or order applicable to health, safety and the environment,
including contamination of soil, groundwater or the environment, generation,
handling, storage, transportation or disposal of Hazardous Materials or exposure
to Hazardous Materials ("ENVIRONMENTAL LAWS"), except for those that would not,
individually or in the aggregate have a material adverse effect on the Business
Condition of Company;
(b) No Hazardous Material has been used by Company in the operation of
Company's business in amounts that would violate any Environmental Laws;
(c) Company has not received from any Governmental Entity or third party
any request for information, notice of claim, demand letter, or other
notification, notice or information that Company is or may be potentially
subject to or responsible for any investigation or clean-up or other remediation
of Hazardous Material present on any Real Property;
(d) To the Knowledge of Company and Seller, there have been no
environmental investigations, studies, audits, tests, reviews, or other
analyses, the purpose of which was to discover, identify, or otherwise
characterize the condition of the soil, groundwater, air, or presence of
asbestos at any of the Real Property sites;
(e) To the Knowledge of Company and Seller, there is no asbestos present
in any Real Property presently owned or operated by Company, and no asbestos has
been removed from any Real Property while such Real Property was owned or
operated by Company; and
(f) To the Knowledge of Company and Seller, there are no underground
storage tanks on, in or under any of the Real Property and no underground
storage tanks have been closed or removed from any Real Property which are or
have been in the ownership of Company.
"HAZARDOUS MATERIAL" means any substance (i) that is a "hazardous waste" or
"hazardous substance" under any federal, state or local statute, regulation,
rule, or order, (ii) that is toxic, explosive, corrosive, flammable, infectious,
radioactive, or otherwise hazardous and is regulated by any Governmental Entity,
(iii) the presence of which on any of the Real Property causes or threatens to
cause a nuisance on any of the Real Property or to adjacent properties or poses
or threatens to pose a hazard to the health or safety of persons on or about any
of the Real Property, or (iv) the presence of which on adjacent properties could
constitute a trespass by Company or the then current owner(s) of any of the Real
Property.
3.18 LITIGATION AND OTHER PROCEEDINGS. Neither Company nor any of its
officers, directors, or employees is a party to any pending or, to the Knowledge
of Company, threatened action, suit, labor dispute (including any union
representation proceeding), proceeding, investigation, or discrimination claim
in or by any court or governmental board, commission, agency, Governmental
Entity, department, or officer, or any arbitrator, arising from the actions or
omissions of Company or, in the case of an individual, from acts in his or her
capacity as an officer, director, or employee of Company, which individually or
in the aggregate would have a material adverse effect on the Business Condition
of Company. Company is not subject to any order, writ, judgment, decree, or
injunction that has or will have a material adverse effect on Company's Business
Condition.
3.19 CERTAIN TRANSACTIONS. Except for (a) relationships with the Company
as an officer, director, or employee thereof (and compensation by the Company in
consideration of such services) and (b) relationships with the Company as
stockholders, none of the members, directors, officers, or shareholders of
Company, or any member of any of their families, is presently a party to, or was
a party to during the year preceding the date of this Agreement, any transaction
with Company, including, without limitation, any contract, agreement, or other
arrangement exceeding $5,000 in any of the two (2) year prior fiscal years (i)
providing for the furnishing of services to or by, (ii) providing for rental of
real or personal property to or from, or (iii) otherwise requiring payments to
or from, any such person or any corporation, partnership, trust, or other entity
in which any such person has or had a 5%-or-more interest (as a shareholder,
partner, beneficiary, or otherwise) or is or was a director, officer, employee,
or trustee. None of Company's officers or directors has any interest in any
property, real or personal, tangible or intangible, including inventions,
copyrights, trademarks, or trade names, used in or pertaining to the business of
Company, or any supplier, distributor, or customer of Company, except for the
normal rights of a stockholder, and except for rights under existing employee
benefit plans.
3.20 INSURANCE AND BANKING FACILITIES. The Company Disclosure Schedule
contains a complete and correct list of (a) all contracts of insurance or
indemnity of Company in force at the date of this Agreement (including name of
insurer or indemnitor, agent, annual premium, coverage, deductible amounts, and
expiration date) and (b) the names and locations of all banks in which Company
has accounts or safe deposit boxes, the designation of each such account and
safe deposit box, and the names of all persons authorized to draw on or have
access to each such account and safe deposit box. All premiums and other
payments due from Company with respect to any such contracts of insurance or
indemnity have been paid, and Company does not know of any fact, act, or failure
to act which has or
might cause any such contract to be canceled or terminated. All known claims for
insurance or indemnity have been presented.
3.21 GUARANTIES AND SURETYSHIPS. Company has no powers of attorney
outstanding (other than those issued in the ordinary course of business with
respect to tax matters), Company has no obligations or liabilities (absolute or
contingent) as guarantor, surety, cosigner, endorser, co-maker, indemnitor, or
otherwise respecting the obligations or liabilities of any person, corporation,
partnership, joint venture, association, organization, or other entity.
3.22 CERTAIN PAYMENTS. Neither Company, nor to the Knowledge of Company,
any person or other entity acting on behalf of Company has, directly or
indirectly, on behalf of or with respect to Company: (a) made an unreported
political contribution, (b) made or received any payment which was not legal to
make or receive, (c) engaged in any material transaction or made or received any
material payment which was not properly recorded on the books of Company, (d)
created or used any "off-book" bank or cash account or "slush fund", or (e)
engaged in any conduct constituting a violation of the Foreign Corrupt Practices
Act of 1977. Neither Company, nor, to the Knowledge of the Company, any
director, officer, employee, or agent of Company has been or is the subject of
any investigation by any Governmental Entity in connection with any such
payment, provision of services, or contribution.
3.23 BOOKS AND RECORDS. All records of Company, including all customer,
intellectual property, supplier, accounting, personnel and computer records, are
maintained with reasonable completeness and accuracy.
3.24 BROKERS AND FINDERS. Company has not retained any broker, finder, or
investment banker in connection with this Agreement or any of the transactions
contemplated by this Agreement, nor does or will Company owe any fee or other
amount to any broker, finder, or investment banker in connection with this
Agreement or the transactions contemplated by this Agreement, except for BT
Alex. Xxxxx Incorporated. Astea shall bear all costs and expenses related to
the engagement of BT Alex. Xxxxx Incorporated.
3.25 Disclosure. Neither the representations or warranties made by Company
or Seller in this Agreement, nor the final Company Disclosure Schedule or any
other certificate executed and delivered by Company pursuant to this Agreement,
when taken together, contains any untrue statement of a material fact, or omits
to state a material fact necessary to make the statements or facts contained
herein or therein not misleading in light of the circumstances under which they
were furnished. To the Knowledge of Company, there are no fact or facts
pertaining to Company or its businesses which could have a material adverse
effect on the Business Condition of Company and which have not been disclosed to
Buyer by Company in writing.
3.26 EXEMPTION FROM FILING REQUIREMENTS OF HSR ACT. In its most recent
fiscal year, Seller did not: (a) have net sales in excess of $60,940,000; or (b)
produce and derive annual sales or revenues in excess of $1,000,000 from
manufacturing operations (i.e. from producing products within industries 2000-
3999 as coded in the Standard Industrial Classification Manual (1972 Edition)
published by the Executive Office of the President, Office of Management and
Budget). The balance sheet of Astea as of June 30, 1998: (x) is the most recent
regularly prepared balance sheet of Seller; (y) has been prepared materially in
accordance with the accounting principles normally used by Sellers; and (z)
indicates that Seller has total assets of less than $34,800,000.
3.27 RELIANCE. The foregoing representations and warranties are made by
Company and Seller with the knowledge and expectation that Buyer is placing
reliance thereon.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer and Ixchange, jointly and severally, represent and warrant to Seller
as follows:
4.1 ORGANIZATION; STANDING AND POWER. (a) Buyer is a corporation duly
organized, validly existing, and in good standing under the laws of the state of
Delaware, has all requisite power and authority to own, lease, and operate its
properties and to carry on its businesses as now being conducted, and is duly
qualified and in good standing to do business in each jurisdiction in which a
failure so to qualify would have a material adverse effect on the Business
Condition of Buyer.
(b) Ixchange is a corporation duly organized, validly existing, and in
good standing under the laws of South Africa, has all requisite power and
authority to own, lease, and operate its properties and to carry on its
businesses as now being conducted, and is duly qualified and in good standing to
do business in each jurisdiction in which a failure so to qualify would have a
material adverse effect on the Business Condition of Ixchange.
4.2 AUTHORITY. Buyer and Ixchange have, or shall have prior to the
Closing, all requisite corporate power and authority to enter into this
Agreement and, subject to the Buyer's Required Statutory Approvals, to
consummate the transactions contemplated hereby. As used in this Agreement
"BUYER'S REQUIRED STATUTORY APPROVALS" means such filings, authorizations,
Orders and approvals as may be required under federal or foreign laws, or
securities laws. The execution and delivery by Buyer and Ixchange of this
Agreement and the consummation of the transactions contemplated hereby have been
duly authorized by all necessary corporate action on the part of Buyer and
Ixchange, including the approval of the Boards of Directors of Buyer and
Ixchange. This Agreement has been duly executed and delivered by Buyer and
Ixchange and constitutes a valid and binding obligation of Buyer and Ixchange
enforceable in accordance with its terms, except that such enforceability may be
subject to (i) bankruptcy, insolvency, reorganization, or other similar laws
relating to enforcement of creditors' rights generally and (ii) general
equitable principles, including the availability of specific performance,
injunctive relief and other equitable remedies.
4.3 COMPLIANCE WITH LAWS AND OTHER INSTRUMENTS.
(a) Buyer holds, and at all times has held, all licenses, permits, and
authorizations from all Governmental Entities necessary for the lawful conduct
of its business pursuant to all applicable statutes, laws, ordinances, rules,
and regulations of all such authorities having jurisdiction over it or any part
of its operations, excepting, however, when such failure to hold would not have
a material adverse effect on the Business Condition of Buyer. There are no
material violations or claimed material violations of any such license, permit,
or authorization or any such statute, law, ordinance, rule or regulation.
Subject to the satisfaction of the conditions set forth in Section 8, neither
the execution and delivery of this Agreement and all other agreements
contemplated hereby by Ixchange or Buyer nor the consummation of the
transactions contemplated hereby and thereby will conflict with or result in any
violation of, or default (with or without notice or lapse of time, or both)
under, or give rise to a right of termination, cancellation, or acceleration of
any obligation or to loss of a material benefit under, or the creation of a
lien, pledge, security interest, charge, or other encumbrance on the assets or
contracts of Ixchange or Buyer pursuant to, (i) any provision of the Certificate
of Incorporation or Bylaws of Ixchange or Buyer or the comparable governing
instruments, or (ii) any loan or credit agreement, note, bond, mortgage,
indenture, contract, lease, or other agreement or instrument, permit,
concession, franchise, license, Order, statute, law, ordinance, rule or
regulation applicable to Ixchange or Buyer or its respective properties or
assets, other
than, in the case of (ii), any such violation which individually or in the
aggregate would not have a material adverse effect on the Business Condition of
Ixchange or Buyer.
(b) No Consent by any Governmental Entity, except for Ixchange's and
Buyer's Required Statutory Approvals, is required by or with respect to Buyer in
connection with the execution and delivery of this Agreement and all other
agreements contemplated hereby by Buyer or the consummation by Buyer of the
transactions contemplated hereby.
4.4 BROKERS AND FINDERS. Neither Buyer, Ixchange nor any of their
directors, officers, or employees has employed any broker or finder or incurred
any liability for any financial advisory fees, brokerage fees, commissions or
similar payments in connection with the transactions contemplated by this
Agreement, except for Xxxxxxxxx Xxxxxx, Inc. Buyer shall bear all costs and
expenses related to the engagement of Xxxxxxxxx Xxxxxx, Inc.
4.5 EXEMPTION FROM FILING REQUIREMENTS OF HSR ACT. In its most recent
fiscal year, Ixchange did not: (a) have net sales in excess of $10,000,000; or
(b) produce and derive annual sales or revenues in excess of $1,000,000 from
manufacturing operations (i.e. from producing products within industries 2000-
3999 as coded in the Standard Industrial Classification Manual (1972 Edition)
published by the Executive Office of the President, Office of Management and
Budget). The most recent balance sheet of Ixchange: (x) is the most recent
regularly prepared balance sheet of Ixchange; (y) has been prepared materially
in accordance with the accounting principles normally used by Ixchange; and (z)
indicates that Ixchange has total assets of less than US$26,000,000.
4.6 RELIANCE. The foregoing representations and warranties are made by
Ixchange and Buyer with the knowledge and expectation that Seller is placing
reliance thereon.
ARTICLE V
COVENANTS OF COMPANY AND SELLER
During the period from the date of this Agreement and continuing until the
earlier of the termination of this Agreement or the Closing Date, Company and
Seller agree (except as expressly contemplated by this Agreement or with Buyer's
prior written consent, which will not be unreasonably withheld or delayed) that:
5.1 CONDUCT OF BUSINESS.
5.1.1 ORDINARY COURSE. Company shall carry on its business in the
usual, regular, and ordinary course in substantially the same manner as
heretofore conducted and, to the extent consistent with such business, use all
reasonable efforts consistent with past practice and policies to preserve intact
its present business organization, keep available the services of its present
officers, consultants, and employees, and preserve its relationships with
customers, suppliers, distributors and others having business dealings with it.
Company shall promptly notify Buyer of any event or occurrence or emergency not
in the ordinary course of business of Company that is material and adverse to
the Business Condition of Company. Company shall not:
(a) grant any severance or termination pay to any officer or
director or, except in the ordinary course of business consistent with past
practices or in accordance with Section 7.6 hereof, to any employee of
Company;
(b) commence a lawsuit other than: (i) for the routine
collection of bills; (ii) in such cases where Company in good faith
determines that failure to commence suit would result in a material
impairment of a valuable aspect of Company's business, provided Company
consults with Buyer prior to filing such suit; or (iii) for a breach of
this Agreement.
(c) enter into one or more leases which extend for a period of
two years beyond the date of this Agreement and/or which obligate the
Company to pay aggregate gross rent in excess of $25,000.
5.1.2 DIVIDENDS; CHANGES IN STOCK. Company shall not: (i) declare or
pay any dividends on or make other distributions (whether in cash, stock, or
property) in respect to any of its capital stock; (ii) split, combine, or
reclassify any of its capital stock or issue or authorize the issuance of any
other securities in respect of, in lieu of or in substitution for shares of its
capital stock; (iii) repurchase or otherwise acquire, directly or indirectly,
any shares of its capital stock; or (iv) propose any of the foregoing.
5.1.3 ISSUANCE OF SECURITIES. Company shall not issue, deliver, or
sell, or authorize, propose, or agree or commit to the issuance, delivery, or
sale of any membership interest, shares of its capital stock of any class, any
securities convertible into its capital stock or, any options, warrants, calls,
conversion rights, commitments, agreements, contracts, understandings,
restrictions, arrangements or rights of any character obligating it to issue any
such shares, Company Voting Debt, or other convertible securities.
5.1.4 GOVERNING DOCUMENTS. Company shall not amend its Articles of
Incorporation or Bylaws or similar governing documents.
5.1.5 NO ACQUISITIONS. Company shall not acquire or agree to acquire
by merging or consolidating with, or by purchasing a substantial portion of the
assets of, or by any other manner, any business or any corporation, partnership,
association, or other business organization or division thereof or otherwise
acquire or agree to acquire any assets that are material, individually or in the
aggregate, to the Business Condition of Company.
5.1.6 NO DISPOSITIONS. Company shall not sell, lease, license,
transfer, mortgage, encumber, or otherwise dispose of any of its assets or
cancel, release, or assign any indebtedness or claim, except in the ordinary
course of business or in amounts which are not material, individually or in the
aggregate, to the Business Condition of Company.
5.1.7 INDEBTEDNESS. Company shall not incur any indebtedness for
borrowed money by way of direct loan, sale of debt securities, purchase money
obligation, conditional sale, guarantee, or otherwise, except in the ordinary
course of business or in amounts that are not material, individually or in the
aggregate, to the Business Condition of Company.
5.1.8 PLANS; EMPLOYEES. Company shall not adopt or amend in any
material respect any Plan, or pay any pension or retirement allowance not
required by any existing Plan. Company shall not enter into any employment
contracts, pay any special bonuses or special remuneration to officers,
directors, or employees, or increase the salaries, wage rates, or fringe
benefits of its officers or employees other than pursuant to scheduled reviews
under Company's normal compensation review cycle, in all cases consistent with
Company's existing policies and past practice.
5.1.9 CLAIMS. Company shall not settle any claim, action, or
proceeding, except in the ordinary course of business or in amounts that are not
material, individually or in the aggregate, to the Business Condition of
Company.
5.1.10 AGREEMENT. Company shall not agree to take any of the actions
prohibited by this Section 5.1.
5.1.11 INTERCOMPANY OBLIGATIONS. On or before the Closing Date,
Seller and Company shall write-off (a) except, as set forth in Article XII, any
and all intercompany obligations on the balance sheet of Bendata as of the
Closing Date for amounts owing to Astea, and (b) accounts receivable of Company
owed by Astea of US$535,095 related to Astea's Australian operations.
5.2 BREACH OF REPRESENTATION AND WARRANTIES. Company and Seller shall not
take any action that would cause or constitute a breach of any of the
representations and warranties set forth in this Agreement or that would cause
any of such representations and warranties to be inaccurate in any material
respect. In the event of, and promptly after becoming aware of, the occurrence
of or the pending or threatened occurrence of any event that would cause or
constitute such a breach or inaccuracy, Company and Seller will give detailed
notice thereof to Buyer and will use reasonable efforts to prevent or promptly
remedy such breach or inaccuracy.
5.3 CONSENTS. Company and Seller will promptly apply for or otherwise
seek, and use reasonable efforts to obtain, all consents and approvals, and make
all filings, required with respect to Company and Seller for the consummation of
the Transaction, except such consents and approvals as Buyer, Seller and Company
agree that Seller or Company shall not seek to obtain.
5.4 REASONABLE EFFORTS. Company and Seller will use reasonable efforts to
effectuate the transactions contemplated hereby and to fulfill and cause to be
fulfilled the conditions to closing under this Agreement, provided that Company
and Seller shall in no event be required to agree to the imposition of, or
comply with, any condition, obligation, or restriction on Company or Seller of
the type referred to in Section 8.1.3 hereof.
5.5 TAXES.
(A) PREPARATION AND FILING OF RETURNS. Between the date hereof and the
Closing Date, Seller shall cause Company to prepare and file on or before the
due date therefor all Returns required to be filed by Company (except for any
Return for which an extension has been granted as permitted hereunder) on or
before the Closing Date, and shall pay, or cause Company to pay, all Taxes
(including estimated Taxes) due on such Return (or due with respect to Returns
for which an extension has been granted as permitted hereunder) or which are
otherwise required to be paid at any time prior to or during such period. Such
Returns shall be prepared in accordance with the most recent Tax practices as to
elections and accounting methods except for new elections that may be made
therein that were not previously available, subject to Buyer's consent (not to
be unreasonably withheld or delayed).
(B) NOTIFICATION OF TAX PROCEEDINGS. Between the date hereof and the
Closing Date, to the extent Seller has knowledge of the commencement or
scheduling of any Tax audit, the assessment of any Tax, the issuance of any
notice of Tax due or any xxxx for collection of any Tax due for Taxes, or the
commencement or scheduling of any other administrative or judicial proceeding
with respect to the determination, assessment or collection of any Tax of
Company, Seller shall provide prompt notice to Buyer of such matter, setting
forth information (to the extent known) describing any asserted Tax liability in
reasonable detail and including copies of any notice or other documentation
received from the applicable Tax authority with respect to such matter.
(C) TAX ELECTIONS, WAIVERS AND SETTLEMENTS. Company and Seller shall not,
and Seller shall cause Company not to, take any of the following actions: (A)
make, revoke or amend any Tax election; (B) execute any waiver of restrictions
on assessment or collection of any Tax; or (C) enter into or amend any agreement
or settlement with any Tax authority.
(D) TERMINATION OF TAX SHARING AGREEMENTS. All tax-sharing agreements or
similar arrangements with respect to or involving Company shall be terminated
with respect to Company prior to the Closing Date, and, after the Closing Date,
neither the Seller and its affiliates, on the one hand, nor Company, on the
other shall be bound thereby or have any liability thereunder to the other party
for amounts due in respect of periods prior to the Closing Date.
(E) CLEARANCE CERTIFICATE. As a condition precedent to the consummation
of the transactions contemplated by this Agreement, Seller shall provide Buyer
with a clearance certificate or similar document(s) which may be required by any
state taxing authority in order to relieve Buyer of any obligation to withhold
any portion of the Purchase Price.
(F) NONFOREIGN AFFIDAVIT. Seller shall furnish Buyer an affidavit,
stating, under penalty of perjury, the transferor's United States taxpayer
identification number and that the transferor is not a foreign person, pursuant
to section 1445(b)(2) of the Code.
5.6 ELECTION UNDER SECTION 338(H)(10).
(A) ELECTION. Buyer shall make an election under section 338(g) of the
Code (and any comparable election under state, local or foreign tax law) with
respect to Company. Buyer and Seller shall make an election under section
338(h)(10) of the Code (and any comparable election under state, local or
foreign tax law) with respect to the acquisition of Company by Buyer. Buyer and
Seller shall cooperate fully with each other in the making of such election. In
particular, and not by way of limitation, in order to effect such election, on
or prior to the Closing Date, Buyer and Seller shall jointly execute necessary
copies of Internal Revenue Service Form 8023 and all attachments required to be
filed therewith pursuant to applicable Treasury regulations.
(B) PURCHASE PRICE ALLOCATION
(i) Buyer and Seller shall allocate the Purchase Price in the
manner required by Section 338 of the Code and the Treasury Regulations
promulgated thereunder. Such allocation shall be used for purposes of
determining the modified aggregate deemed sales price under the applicable
Treasury Regulations and in reporting the deemed sale of assets of the Company
in connection with the 338(h)(10) election.
(ii) Buyer shall initially prepare a completed set of IRS Forms 8023
(and any comparable forms required to be filed under state, local or foreign tax
law) and any additional data or materials required to be attached to Form 8023
pursuant to the Treasury Regulations promulgated under Section 338 of the Code.
Buyer shall deliver said forms to Seller for review no later than 45 days prior
to the date the Section 338 Forms are required to be filed. In the event Seller
objects to the manner in which the Section 338 Forms have been prepared, Seller
shall notify Buyer within 15 days of receipt of the Section 338 Forms of such
objection, and the parties shall endeavor within the next 15 days in good faith
to resolve such dispute. If the parties are unable to resolve such dispute
within said 15 day period, Buyer and Seller shall submit such dispute to an
independent accounting firm of recognized national standing (the "Allocation
Arbiter") selected by Buyer and Seller, which firm shall not be the regular
accounting firm of Buyer or Seller. Promptly, but not later than 15 days after
its acceptance of appointment
hereunder, the Allocation Arbiter will determine (based solely on presentations
of Buyer and Seller and not by independent review) only those matters in dispute
and will render a written report as to the disputed matters and the resulting
preparation of the Section 338 Forms shall be conclusive and binding upon the
parties.
5.7 EXCLUSIVITY. Prior to the earlier of the Closing or the termination
of this Agreement, Company, Seller, and each of their respective Subsidiaries as
well as all affiliates, members, directors, officers, employees, investment
bankers, accountants and attorneys thereof, will not, and will not authorize or
permit any of their respective officers, directors, employees or other
representatives retained by any of them to, (a) take any action to facilitate
the making of any proposal or solicit any proposal which is reasonably expected
to lead to, any acquisition or purchase of a substantial amount of assets of, or
any equity interest in Company or any merger, partnership, joint venture or any
other form of business combination, sale of substantially all assets, licensing
or other similar agreement with respect to any aspect of its business, sale of
securities, recapitalization, liquidation, dissolution or similar transaction
involving Company (other than the transactions contemplated hereby) or agree to
any of the foregoing, or (b) enter into or participate in any discussions or
negotiations regarding any of the foregoing, either from third parties who have
previously expressed an interest in a transaction or from other third parties.
ARTICLE VI
COVENANTS OF BUYER
Each of Ixchange and Buyer agree (except as expressly contemplated by this
Agreement or with Seller's prior written consent, which will not be unreasonably
withheld or delayed) that:
6.1 BREACH OF REPRESENTATIONS AND WARRANTIES. During the period from the
date of this Agreement and continuing until the earlier of the termination of
this Agreement or the Closing Date, neither Ixchange nor Buyer will take any
action that would cause or constitute a breach of any of the representations and
warranties set forth in this Agreement or that would cause any of such
representations and warranties to be inaccurate in any material respect. In the
event of, and promptly after becoming aware of, the occurrence of or the pending
or threatened occurrence of any event that would cause or constitute such a
breach or inaccuracy, Buyer or Ixchange will give detailed notice thereof to
Seller and will use reasonable efforts to prevent or promptly remedy such breach
or inaccuracy.
6.2 CONSENTS. During the period from the date of this Agreement and
continuing until the earlier of the termination of this Agreement or the Closing
Date, Buyer and Ixchange will promptly apply for or otherwise seek, and use
reasonable efforts to obtain, all consents and approvals, and make all filings,
required for the consummation of the Transaction.
6.3 REASONABLE EFFORTS. During the period from the date of this Agreement
and continuing until the earlier of the termination of this Agreement or the
Closing Date, Buyer and Ixchange will use their reasonable efforts to effectuate
the transactions contemplated hereby, including obtaining the approval specified
in Section 8.2.6, and to fulfill and cause to be fulfilled the conditions to
closing under this Agreement, provided that Buyer and Ixchange shall in no event
be required to agree to the imposition of, or to comply with, any condition,
obligation or restriction on Buyer or Ixchange of the type referred to in
Section 8.1.3 hereof.
6.4 CAPITAL CONTRIBUTION. Following the Closing Date, Buyer will make a
capital contribution to the Company of up to $4,000,000. Buyer shall have the
sole discretion to determine the amount thereof and to modify the means and
structure through which such amounts are provided to the Company.
ARTICLE VII
ADDITIONAL AGREEMENTS
In addition to the foregoing, Buyer, Seller and Company each agree to take
the following actions after the execution of this Agreement.
7.1 ACCESS TO INFORMATION. Company, Seller and Buyer shall, subject to
applicable law, each afford the other and their respective accountants, counsel,
and other representatives, reasonable access during normal business hours to (a)
all of their and their respective subsidiaries' properties, books, contracts,
commitments, and records, and (b) all other information concerning the business,
properties and personnel of Company, Seller and Buyer and their respective
subsidiaries, as the other party may reasonably request and as is necessary to
complete the Transaction and prepare for an orderly transition to operations
after the Closing. Company, Seller and Buyer agree to provide to each other and
their respective accountants, counsel, and representatives copies of internal
financial statements promptly upon the request therefore. No information or
knowledge obtained in any investigation pursuant to this Section 7.1 shall
affect or be deemed to modify any representation or warranty contained herein or
the conditions to the obligations of the parties to consummate the Transaction.
7.2 EXPENSES. Whether or not the Transaction is consummated, all costs
and expenses incurred in connection with this Agreement and the transactions
contemplated hereby and thereby shall be paid by the party incurring such
expense.
7.3 ADDITIONAL AGREEMENTS. In case at any time after the Closing Date any
further action is reasonably necessary or desirable to carry out the purposes of
this Agreement or to vest Buyer with full title to all properties, assets,
rights, approvals, immunities, and franchises, the proper officers and directors
of each party to this Agreement shall take all such necessary action.
7.4 PUBLIC ANNOUNCEMENTS. Ixchange and Astea shall cooperate with each
other in releasing information concerning this Agreement and the transactions
contemplated herein. Where practicable each of the parties shall furnish to the
other drafts of all releases prior to publication. Nothing contained herein
shall prevent either party at any time from furnishing any information to any
Governmental Entity or from issuing any release when it believes it is legally
required to do so, provided such party gives the other party prompt notice of
such Order, if applicable, and complies with any protective order (or
equivalent) imposed on such disclosure. Ixchange acknowledges that Astea intends
to publicly report the execution of this Agreement by means of Securities and
Exchange Commission Form 8-K, provided that, this Agreement shall not be made
public, whether by filing of a Form 8-K or otherwise, until after the Closing.
7.5 ASTEA EMPLOYEES. On or before September 30, 1998, the eleven
employees of Astea currently based in Australia who are dedicated to the sale
and distribution of the Company's products (listed on Company Disclosure
Schedule), together with any equipment, furniture and other assets and personal
properties used by such employees in such sale and distribution shall be
transferred and assigned by Astea to Buyer or an entity designated by Buyer.
Buyer shall pay costs and expenses of establishing its facilities and moving
related equipment, furniture and other assets and personal properties. Seller
shall pay costs and expenses of terminating employment of such employees,
including payment of all benefits and amounts due and owing to such employees
through the date of termination and shall indemnify Buyer and Ixchange from any
claims therefor. Nothing in this paragraph shall require Astea to transfer to
Buyer any interest in real property, whether it be a fee or leasehold interest.
Prior to September 30, 1998, such employees shall be dedicated to the sale and
distribution of the Company's products. Buyer shall pay
Astea the commission payable to distributors in accordance with the Company's
usual and past practices for all sales of such products by such employees
invoiced as of the earlier to occur of the transfer date or September 30, 1998.
7.6 SEVERANCE. Company employees Xxxx Xxxxx, Xxxxxx Xxxxxxxx, Xxx
Xxxxxxxxxx, Xxxxx Xxxxx, Xxx Xxxxxxxxx, Xxxx Xxxxxx, Xxxxxxx Xxxxxxxxx, Xxxx
Xxxxxx, Xxxxxx Xxxxx and Xxxx Xxxxxxx are each parties to Change in Control
Agreements with the Company dated April 13, 1998. Buyer shall pay any amounts
that may become due under these Change in Control Agreements; provided, however,
that with respect to the first three such employees whose employment is
terminated on or prior to December 31, 1998, if any, Seller shall immediately
make such payments to such individuals. In the event such payments are not made,
Buyer shall be entitled to offset such payments against the Promissory Note
pursuant to Section 9.7.
7.7 NO RIGHT IN COMPANY ASSETS. Seller acknowledges it has no rights to
nor is any consideration in any form payable to Seller with respect to the
Company assets, including the development, use, sale or distribution of Company
Intellectual Property. Seller hereby irrevocably waives any rights it may have
to and releases any claims it may have against the Company with respect to any
assets of Company.
7.8 ASSIGNMENT OF "GREEN SHARK" ASSETS. Company hereby irrevocably
assigns and transfers to Astea, and otherwise waives any rights Company may have
to, and releases any claims it may have against Seller, with respect to the
"Green Shark" software architecture technology and developmental tool, more
fully described on Exhibit 7.8 hereto ("GREEN SHARK TOOL"); provided, however,
that Seller hereby grants Bendata a license to use the Green Shark Tool for
internal development purposes, including an irrevocable, perpetual,
nonexclusive, royalty free, worldwide license to market, distribute, reproduce,
license and sublicense and sell products of Bendata that are developed using the
Green Shark Tool and as a result include software code that is a derivative work
of the Green Shark Tool or contain components of the Green Shark Tool (provided
that the Bendata products includes substantial additional functionality beyond
the functionality found in the Green Shark Tool). Bendata and Buyer agree that
it shall not distribute (nor grant any sublicenses to distribute) the Green
Shark Tool as a stand-alone software product whose primary components are the
Green Shark Tool. Notwithstanding the foregoing, this license grant shall not be
deemed to require Astea to continue or complete software development of such
technology, and Buyer and Ixchange are not relying on Seller to continue or
complete development of such technology as an inducement to this Agreement.
7.9 PRESIDIO LEASE AND PNC LEASING CORP. EQUIPMENT LEASE.
(a) Ixchange shall indemnify Astea as guarantor of Bendata's obligations
for payments to be paid by Bendata after the Closing which arise from Bendata's
failure to make such payments after the Closing under the lease for the property
located at the Chapel Hills Office Building, 0000 Xxxxx Xxxxxxx Xxxx., Xxxxxxxx
Xxxxxxx, XX 00000, as more fully described in Section 3.16 of the Disclosure
Schedule, and Astea and Ixchange agree to make reasonable efforts to substitute
Ixchange in Astea's place as guarantor of such lease as soon as practicable
after the Closing.
(b) As soon as practicable after the Closing, Ixchange or the Company
shall take all actions necessary to discharge Astea's obligations with respect
to equipment utilized by the Company under Master Lease #937 dated October 30,
1996 with PNC Leasing Corporation, provided that payment obligation does not
exceed the sum of $100,000.
7.10 APPLICATION TO THE SUPREME COURT OF SOUTH AFRICA. Seller, as a
creditor of Ixchange, shall not object to or contest Ixchange's application to
the Supreme Court of South Africa for permanent reduction in share capital.
7.11 BENDATA CANADA LIMITED. Company and Seller shall use their
reasonable best efforts to assist Buyer as requested by Buyer in order to
complete, apply for or renew Bendata Canada Limited's incorporation in Canada
and the issuance of its shares and to confirm and/or transfer the assets of
Bendata Canada Limited to Company and/or Bendata Canada Limited.
7.12 DELIVERY OF ANNUAL COMPANY FINANCIALS. Company and Seller shall use
their reasonable best efforts to provide Buyer no later than September 11, 1998
with annual balance sheets, income statements and cash flow statements for the
years ended 1995, 1996 and 1997, sufficient to comply with requirements of the
Johannesburg Stock Exchange. This shall consist primarily of instructing the
Company's independent accounting firm to prepare financial statements in a form
requested by Ixchange consistent with GAAP. Ixchange shall reimburse Astea and
Company for reasonable expenses incurred in preparing such financial statements.
ARTICLE VIII
CONDITIONS PRECEDENT
8.1 CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE TRANSACTION. The
respective obligation of each party to effect the Transaction shall be subject
to the satisfaction prior to the Closing Date of the following conditions:
8.1.1 CONSENTS. All Consents legally required for the consummation
of the Transaction shall have been filed, occurred, or been obtained, other than
such Consents, the failure of which to obtain would not have a material adverse
effect on the consummation of the Transaction contemplated hereby or on the
Business Condition of Buyer or Company.
8.1.2 NO RESTRAINTS. No statute, rule, regulation, or Order shall
have been enacted, entered, promulgated, or enforced by any United States court
or Governmental Entity of competent jurisdiction that enjoins or prohibits the
consummation of the Transaction and that is then in effect.
8.1.3 NO BURDENSOME CONDITION. There shall not be any action taken,
or any statute, rule, regulation, or Order enacted, entered, enforced, or deemed
applicable to the Transaction by any Governmental Entity which, in connection
with the grant of any Required Statutory Approval, imposes any restriction,
condition or obligation upon Buyer or Company which would have a material
adverse effect on the economic or business benefits of the transactions
contemplated by this Agreement.
8.2 CONDITIONS OF OBLIGATIONS OF BUYER. The obligations of Buyer to
effect the Transaction are subject to the satisfaction of the following
conditions, unless waived by Buyer in writing:
8.2.1 REPRESENTATIONS AND WARRANTIES OF SELLER AND COMPANY. The
representations and warranties of Company and Seller set forth in this Agreement
shall be true and correct as of the date of this Agreement and as of the Closing
Date as though made on and as of the Closing Date, except: (i) as otherwise
contemplated by this Agreement, or (ii) in respects that do not have a material
adverse effect on the Business Condition of Company or on the benefits of the
transactions provided for in this Agreement. Buyer shall have received a
certificate signed on behalf of the Company and Astea by an authorized officer
and the Controller of the Company and Astea to such effect on the Closing Date.
8.2.2 PERFORMANCE OF OBLIGATIONS OF COMPANY AND SELLER. Company and
Seller shall have performed all agreements and covenants required to be
performed by them under this Agreement prior to the Closing Date, except for
breaches that do not have a material adverse effect on the Business Condition of
Company or on the benefits of the transactions provided for in this Agreement.
Buyer shall have received a certificate signed on behalf of Company and Seller
by an officer of Company and Seller to such effect.
8.2.3 OPINION OF COMPANY'S COUNSEL. Buyer shall have received
opinions dated the Closing Date of Holme Xxxxxxx & Xxxx LLP and Xxxxx, Xxxxxxx &
Xxxxxxxxx, LLP, counsels to Company and Seller, in substantially the form
proposed by Ixchange's counsel and attached as Exhibit 8.2.3. Buyer's and
Seller's respective counsels shall negotiate and finalize such opinions promptly
following the execution of this Agreement.
8.2.4 NO MATERIALLY ADVERSE CHANGE. No materially adverse change
shall have occurred with respect to Company or its business between the Stub
Period Date and the Closing.
8.2.5 EMPLOYEES. Buyer shall have entered into mutually acceptable
employment agreements or satisfied itself with respect to the employment
arrangements with the employees listed on Schedule 8.2.5 Buyer expects to
establish following the Closing Date a stock option incentive plan providing for
the grant of up to 2,100,000 shares of Ixchange on terms and conditions as may
be established by Buyer in its sole discretion for such employees and such other
employees as may be hired after the Closing Date.
8.2.6 APPROVAL OF RESERVE BANK. The Reserve Bank of the Republic of
South Africa shall have approved this Agreement and the transactions
contemplated thereby to the extent required by applicable law and regulation.
Buyer and Ixchange shall use its reasonable best efforts to facilitate such
approval.
8.3 CONDITIONS OF OBLIGATIONS OF SELLER AND COMPANY. The obligation of
Seller and Company to effect the Transaction is subject to the satisfaction of
the following conditions unless waived by Seller in writing:
8.3.1 REPRESENTATIONS AND WARRANTIES OF BUYER AND IXCHANGE. The
representations and warranties of Buyer and Ixchange set forth in this Agreement
shall be true and correct as of the date of this Agreement and as of the Closing
Date as though made on and as of the Closing Date, except: (i) as otherwise
contemplated by this Agreement, or (ii) in respects that do not have a material
adverse effect on the Business Condition of Buyer or Ixchange or on the benefits
of the transactions provided for in this Agreement. Company shall have received
a certificate signed on behalf of Buyer and Ixchange by an authorized officer
and Controller of Buyer and Ixchange to such effect on the Closing Date.
8.3.2 PERFORMANCE OF OBLIGATIONS OF BUYER. Buyer and Ixchange shall
have performed all agreements and covenants required to be performed by them
under this Agreement prior to the Closing Date except for breaches that do not
have a material adverse effect on the Business Condition of Buyer and Ixchange
or on the benefits of the transactions provided for in this Agreement, and
Company shall have received a certificate signed on behalf of Buyer and Ixchange
by an authorized officer of Buyer and Ixchange to such effect.
8.3.3 OPINION OF BUYER COUNSEL. Seller shall have received an
opinion dated the Closing Date of Xxxxxxx Xxxxx & Xxxxx LLP, counsel to Buyer,
substantially in the form of Exhibit 8.3.3.
ARTICLE IX
INDEMNIFICATION
9.1 INDEMNIFICATION BY SELLER. (a) Subject to Sections 9.5 and 9.6 and in
addition to Article XII, Seller shall, jointly and severally, defend, indemnify,
and hold Buyer and Ixchange and their employees, officers, directors and agents
(and, following the Closing Date, Company and its employees, officers, directors
and agents) harmless from and against, and reimburse Buyer and Ixchange (and,
following the Closing Date, Company) with respect to, any and all Losses
incurred by Buyer, Ixchange or Company by reason of or arising out of or in
connection with (i) any breach, or any third-party claim that if true, would
constitute a breach, by Company or Seller of any representation or warranty of
Company or Seller contained in this Agreement or in any certificate delivered to
Buyer pursuant to the provisions of this Agreement and/or (ii) the failure,
partial or total, of Company or Seller to perform any agreement or covenant
required by this Agreement to be performed by it. (b) Neither Seller nor any of
its affiliates shall make any claim against Company, its employees, officers,
directors and agents after the Closing Date for any breach of representation,
warranty or covenant under this Agreement or seek contribution or
indemnification from Company, its employees, officers, directors and agents with
respect to any such breach.
9.2 INDEMNIFICATION BY BUYER. Subject to Sections 9.5 and 9.6, Buyer and
Ixchange shall, jointly and severally, defend, indemnify, and hold Company and
Seller and their employees, officers, directors, and agents harmless from and
against, and reimburse Company and Seller with respect to, any and all Losses
incurred by the Seller or Company by reason of or arising out of or in
connection with: (i) any breach, or any third-party claim that if true, would
constitute a breach by Buyer or Ixchange of any representation or warranty of
Buyer or Ixchange contained in this Agreement or in any certificate delivered to
Seller pursuant to the provisions of this Agreement and/or (ii) the failure,
partial or total, of Buyer or Ixchange to perform any agreement or covenant
required by this Agreement to be performed by it.
9.3 NOTICE OF CLAIMS. All claims for indemnification under this Agreement
shall be resolved in accordance with the following procedures:
(a) If an indemnified party reasonably believes that it may incur any
Losses, it shall deliver a Claim Notice to the indemnifying party for such
Losses. If an indemnified party receives notice of a third-party claim for which
it intends to seek indemnification hereunder, it shall give the indemnifying
party prompt written notice of such claim, so that the indemnifying party's
defense of such claim under Section 9.4 hereunder may be timely instituted.
(b) When Losses are actually incurred or paid by an indemnified party or
on an indemnified party's behalf or otherwise fixed or determined, the
indemnified party shall deliver a Payment Certificate to the indemnifying party
for such Losses. If a Claim Notice or Payment Certificate refers to any claim,
action, suit, or proceeding made or brought by a third party, the Claim Notice
or Payment Certificate shall include copies of the claim, any process served,
and all legal proceedings with respect thereto.
(c) If, after receiving a Payment Certificate, the indemnifying party
desires to dispute such claim or the amount claimed in the Payment Certificate,
it shall deliver to the indemnified party a Counternotice as to such claim or
amount. Such Counternotice shall be delivered within thirty (30) days after the
date the Payment Certificate to which it relates is received by the indemnifying
party. If no such Counternotice is received within the aforementioned 30-day
period, the indemnifying party
shall have waived any further objection to such Payment Certificate or the
Losses described in it, and the indemnified party shall be entitled to prompt
payment for such Losses from the indemnifying party.
(d) If, within thirty (30) days after receipt by the indemnified party of
the Counternotice to a Payment Certificate, the parties shall not have reached
agreement as to the claim or amount in question, the claim for indemnification
shall be decided in accordance with the provisions of Section 13.9
(e) With respect to any Losses based upon an asserted liability or
obligation to a person or entity not a party to this Agreement for which
indemnification is being claimed, the obligations of the indemnifying party
hereunder shall not be reduced as a result of any action by the party furnishing
the notice of third party claim responding to such claim if such action is
reasonably required to minimize damages or to avoid a forfeiture or penalty or
to comply with a requirement imposed by law.
9.4 DEFENSE OF THIRD PARTY CLAIMS. The indemnifying party under this
Article IX shall have the right to conduct and control, through counsel of its
own choosing, any third-party claim, action, or suit or compromise or settlement
thereof. The indemnified party may, at its election, participate in the defense
of any such claim, action, or suit through counsel of its choosing, but the fees
and expenses of such counsel shall be at the expense of the indemnified party,
unless the indemnified party shall have been advised by such counsel that there
may be one or more legal defenses available to it that are different from or in
addition to those available to the indemnifying party (in which case, if the
indemnified party notifies the indemnifying party in writing that it elects
separate counsel at the expense of the indemnifying party, the indemnifying
party shall not have the right to assume the defense of such action on behalf of
the indemnified party with respect to such defenses). If the indemnifying party
shall fail to defend any such third-party action, claim, or suit, then the
indemnified party may defend, through counsel of its own choosing, such action,
claim, or suit and may settle such action, claim, or suit and recover from the
indemnifying party the amount of such settlement or of any judgment and the
costs and expenses of such defense; provided, however, that the indemnifying
party shall not be liable to pay any such settlement unless the indemnified
party shall have given the indemnifying party written notice of the terms of the
proposed settlement and the indemnifying party shall have failed, within twenty
(20) days of receipt of such notice, to undertake the defense of such action,
claim, or suit. The indemnifying party shall not compromise or settle any third-
party action, claim, or suit which includes any term that shall require any act
or forbearance by the indemnified party from all liability in respect of such
claim, action, or suit without the prior written consent of the indemnified
party, which consent shall not be unreasonably withheld or delayed. Assumption
by an indemnifying party of control of any such defense, compromise, or
settlement shall not be deemed a waiver by it of its right to challenge its
obligation to indemnify the indemnified party. Buyer, Ixchange, Company and
Seller shall cooperate in all reasonable respects with each other in connection
with the defense, negotiation, or settlement of any legal proceeding, claim, or
demand referred to in this Section 9.4.
9.5 TIME LIMIT. The provisions of this Article IX shall apply only to
Losses that are incurred or relate to claims, demands, or liabilities that are
asserted or threatened within two (2) year of the Closing Date, except for Tax
Losses and Losses with respect to breaches of Section 3.12 which shall survive
for the applicable statute of limitations; provided, however, that the
indemnification obligations for such claims for which a Claim Notice is given
within the time period set forth above shall continue until the final resolution
of each such claim.
9.6 LIMITATIONS. Except for breaches of Sections 7.5, 7.6, and Tax Losses
which shall not be subject to any Threshold Amount, the indemnified party shall
be entitled to indemnification only if the aggregate Losses exceed Fifty
Thousand US Dollars (US$50,000) (the "THRESHOLD AMOUNT"), and then only to the
extent the aggregate Losses exceed the Threshold Amount. The aggregate amount to
which an
indemnified party shall be entitled to be indemnified will not exceed the
Purchase Price for indemnification claims arising within one (1) year following
the Closing Date and Eight Million Five Hundred Thousand US Dollars
(US$8,500,000) for indemnification claims arising during the period beginning
one (1) year following the Closing Date. The sole remedy of Buyer, Ixchange,
Seller and Company for breaches of this Agreement shall be claims made in
accordance with and subject to the limitations of this Article IX.
9.7 OFFSET. Subject to Sections 9.5 and 9.6, Buyer and Ixchange shall
first offset from the amounts due under the Promissory Note and the
Reimbursement Promissory Note, any amounts representing Losses resulting to
Buyer as a result of any indemnification claim contained in this Agreement and
any amounts owed by Seller pursuant to Sections 7.5 and 7.6. Buyer's exercise of
its offset rights shall not limit Buyer's right to recover any amounts owed it
that exceed the amount obtained by exercise of those rights and such exercise
shall not be in substitution of or in any way limit Buyer's exercise of its
other rights and remedies. Company and Seller acknowledge and agree that Buyer's
exercise of its rights pursuant to this section shall not limit Buyer's right to
recover any amounts owed to it that exceed the amount obtained by exercise of
those rights and, subject to Sections 9.5 and 9.6, such exercise shall not limit
Buyer's exercise of its other rights and remedies under this Agreement.
9.8 LIABILITY FOR FAILURE TO CLOSE. If, prior to October 1, 1998, all
conditions to Closing specified in Article VIII have been satisfied or, in the
case of the conditions specified by Section 8.2, waived by Buyer, or, in the
case of the conditions specified by Section 8.3, waived by Seller, and either
Buyer or Seller fails or refuses to consummate this Transaction, then the party
that fails or refuses to consummate this Transaction shall be liable to the
other party for all damages, expenses and costs related to the Transaction and
the failure to close the Transaction, including all direct and actual losses and
damages and indirect and consequential damages, and expenses (including
attorneys fees and related expenses). The party not failing or refusing to
consummate this Transaction shall, in addition, have the right to pursue any
remedies provided by Section 10.5.
ARTICLE X
TERMINATION, AMENDMENT AND WAIVER
10.1 TERMINATION. This Agreement may be terminated at any time prior to
the Closing Date, whether before or after approval of matters presented in
connection with the Transaction by the stockholders or members of Company:
(a) by mutual consent of Ixchange and Astea;
(b) by either Ixchange or Astea (provided that the terminating
party is not then in material breach of any representation, warranty, covenant,
or agreement contained in this Agreement) if there has been a breach of any
representation, warranty, covenant, or agreement that has a material adverse
effect on the Business Condition of the Company or Seller, on one hand, or Buyer
or Ixchange, on the other hand, as the case may be, or on the benefits of the
transaction provided for in this Agreement, and such breach has not been cured,
or reasonable efforts are not being employed to cure such breach, within ten
(10) days after notice thereof is given to the party committing such breach;
(c) by Ixchange or Astea if the Transaction shall not have been
consummated before October 1, 1998;
(d) by Astea if the approval of the Reserve Bank of the Republic
of South Africa described in Section 8.2.6 is not obtained by September 17,
1998; or
(e) by Ixchange or Astea if any permanent injunction or other
Order of a court or other competent authority preventing the Transaction shall
have become final and non-appealable.
Where action is taken to terminate this Agreement pursuant to this Section
10.1, it shall be sufficient for such action to be authorized, in the case of
Buyer, Ixchange, Seller and Company, by the Board of Directors or members, as
applicable, of the party taking such action without any requirement to submit
such action to the stockholders of such party.
10.2 EFFECT OF TERMINATION. In the event of termination of this Agreement
by Astea or Ixchange as provided in Section 10.1, this Agreement shall forthwith
become void and have no effect, and there shall be no liability or obligation on
the part of the Buyer, Ixchange, Seller or Company or their respective officers
or directors, except that (a) the provisions of Sections 7.2, 7.4, 10.2, 10.5,
11.2, 13.2, 13.7, 13.8 and 13.9 shall survive any such termination and
abandonment, and (b) no party shall be released or relieved from any liability
arising from the willful breach by such party of any of its representations,
warranties, covenants, or agreements as set forth in this Agreement.
10.3 AMENDMENT. This Agreement may be amended by the parties hereto, by
action taken by their respective Boards of Directors or managers as applicable,
at any time before or after approval of matters presented in connection with the
Transaction by the stockholder or member of Company or Buyer, but after any such
stockholder or member approval, no amendment shall be made which by law requires
the further approval of stockholders or members without obtaining such further
approval. This Agreement may not be amended except by an instrument in writing
signed on behalf of each of the parties hereto.
10.4 EXTENSION, WAIVER. At any time prior to the Closing Date, any party
hereto, by action taken by its Board of Directors or member as applicable may,
to the extent legally allowed, (i) extend the time for the performance of any of
the obligations or other acts of the other parties hereto, (ii) waive any
inaccuracies in the representations and warranties made to such party contained
herein or in any document delivered pursuant hereto and (iii) waive compliance
with any of the agreements, covenants or conditions for the benefit of such
party contained herein. Any agreement on the part of a party hereto to any such
extension or waiver shall be valid only if set forth in an instrument in writing
signed on behalf of such party.
10.5 SPECIFIC PERFORMANCE. Seller acknowledges that the Company is of a
unique, special and extraordinary character, and that any material breach by
Seller of its obligation to consummate the Transaction set forth in this
Agreement could not be compensated for by damages. Accordingly, if Seller
breaches its obligations to close the Transaction, Ixchange and Buyer shall be
entitled, in addition to any other remedies to which they are entitled, to
enforcement of this Agreement by a decree of specific performance requiring
Seller to Consummate the Transaction in accordance with this Agreement (and on
the terms specified in this Agreement) and no bond or security shall be
required.
ARTICLE XI
NONCOMPETITION AND NONSOLICITATION
11.1 NONCOMPETITION. For a period of three (3) years after the Closing
Date, Seller shall refrain from, directly or indirectly, carrying on or
participating in any stand-alone help desk management software business
worldwide, including the development, distribution, licensing, sales and
marketing of any products that compete, on a stand-alone basis, with the current
products of Company or products of
Company currently scheduled or under development. A business shall be deemed
carried on by Seller if carried on by a partnership in which it is a general or
limited partner, or a corporation, association or other entity of which it is a
shareholder, director, officer, investor, manager, or member, or in which either
of them has a financial interest, or as an employee of any entity. However, this
Section shall not prevent Seller from (a) including help desk functionality in
its service management and sales force automation software products which are
not stand-alone help desk management software products, (b) continuing to
distribute and support its existing PowerHelp product (directly or indirectly),
or (c) owning as a passive investment, up to 5% of a class of equity securities
issued by any company, including a competitor of Company or Ixchange that is
registered under the Securities Exchange Act of 1934 or subject to Section 15(d)
of such Act; provided that neither Astea nor its Subsidiaries shall enter into
any licensing or technology support agreement with such competitor related to
help desk functions. Pursuant to (a) in the preceding sentence, Astea may market
such incorporated help desk functionality to the service management and sales
force automation software markets, but, for three (3) years following the
Closing Date, Astea shall not market such help desk function to the help desk
management market. The parties agree that the terms of this noncompetition
provision are necessary for the reasonable and proper protection of the business
of Buyer and that each and every restraint contained herein is reasonable.
Seller acknowledges and agrees that any violation of this provision may have an
immediate adverse and unfair effect on the business as conducted by Buyer and
that Buyer would not have entered into this Agreement in the absence of such
noncompetition provision. With respect to each and every breach or violation or
threatened breach or violation by Seller, Buyer shall be entitled to seek an
injunction enjoining the commencement or continuance of such activities, and,
without notice to Seller may apply to any court of competent jurisdiction for
entry of an immediate restraining order or injunction. The pursuit of such
remedy at any time will not be deemed an election of remedies or waiver of the
right to pursue any other remedies.
11.2 NONSOLICITATION. (a) For a period of three (3) years after the
Closing Date, neither Buyer, Company nor Ixchange, nor any Subsidiary thereof,
shall, except for the transfer of employees described in Section 7.5, solicit or
attempt to solicit (directly or indirectly) the current employees of Seller. For
a period of six (6) months after the Closing Date, neither Buyer, Company nor
Ixchange, nor any Subsidiary thereof, shall, except for the transfer of
employees described in Section 7.5, hire the current employees of Seller.
(b) For a period of three (3) years after the Closing Date, neither Astea
nor Network, nor any Subsidiary thereof, shall solicit or attempt to solicit
(directly or indirectly) the current employees of Company, Buyer or Ixchange.
For a period of six (6) months after the Closing Date, neither Astea nor
Network, nor any Subsidiary thereof, shall hire the current employees of
Company, Buyer or Ixchange.
ARTICLE XII
TAX MATTERS
12.1 SCOPE OF TAX INDEMNITY, PROVISIONS: RELATIONSHIP OF THIS ARTICLE XII
TO ARTICLE III. In the case of any indemnity claim for Taxes for a Pre-Closing
Period, the indemnity obligations of Seller, and the rights of Buyer with
respect to indemnification, shall be governed by this Article XII and Article IX
hereof (regardless of whether the Taxes for which indemnity is being claimed
result from the breach of a representation in Section 3.8 hereof).
12.2 ALLOCATION OF LIABILITY FOR TAXES.
(A) GENERAL. Subject to Section 12.2(b) hereof: Seller, irrespective of
Buyer's Tax Reimbursement payment, shall be liable for, and shall indemnify,
defend and hold Buyer harmless from
and against, (i) any and all Taxes imposed on or with respect to Company, or
their respective assets, operations or activities for any Pre-Closing Period,
and (ii) all Taxes attributable to the parties' joint election under Section
338(h)(10) of the Code with respect to the purchase of the stock of Company. Any
amount payable by Seller to Ixchange pursuant to subsection (B) of this section
shall be offset against amounts payable under the Promissory Note and/or the
Reimbursement Promissory Note. Subject to the first sentence in this Section
12.2(a), Ixchange shall be liable for, and shall indemnify, defend and hold
Seller harmless from and against, (A) any and all Taxes imposed on or with
respect to Company or their respective operations, ownership, assets or
activities for any Post-Closing Period. Any amount payable to Seller by Ixchange
pursuant to subsection (B) of this section shall be added to the principal
amount of the Promissory Note.
(B) CERTAIN TRANSACTION COSTS. Notwithstanding anything to the contrary
in this section 12.2, Buyer shall be liable for and pay any and all transfer
Taxes arising in connection with the transfer of the stock or interests of
Company hereunder and Buyer shall indemnify, defend and hold the other party
harmless against any and all such transfer Taxes.
12.3 PRORATION OF TAXES.
(A) METHOD OF PRORATION. Tax items shall be apportioned between Pre-
Closing Periods based on a closing of the books and records of the relevant
entity or entities as of the Closing Date (provided that (i) any Tax item
incurred by reason of the transactions occurring on or before the Closing Date,
including the deemed asset sale resulting from the parties' joint election under
Section 338(h)(10) of the Code, as contemplated by this Agreement shall be
treated as occurring in a Pre-Closing Period and (ii) depreciation, amortization
and depletion for any Straddle Period shall be apportioned on a daily pro rata
basis.
(B) NO CONTRARY ELECTIONS. Seller and Buyer will not exercise any option
or election to allocate Tax items in a manner inconsistent with Section 12.3(a)
hereof.
12.4 REFUNDS OF TAXES; AMENDED RETURNS; CARRYOVERS.
(A) REFUNDS. If Buyer, receives a Tax refund with respect to Taxes
arising in a Pre-Closing Period, Buyer shall pay, within the thirty (30) days
following the receipt of such Tax refund, the amount of such Tax refund to the
Seller. If Seller receives a Tax refund with respect to Taxes arising in any
Post-Closing Tax Period, within thirty (30) days following the receipt of such
Tax refund, Seller will pay the amount of such Tax refund to Buyer.
(B) AMENDED RETURNS.
(i) Any amended Return or claim for Tax refund for any Pre-Closing
Period other than a Straddle Period shall be filed, or caused to be filed, only
by Seller. Seller shall not, without the prior written consent of Buyer (which
consent shall not be unreasonably withheld or delayed) make or cause to be made,
any such filing, to the extent such filing, if accepted, reasonably might change
the Tax liability of Buyer for any Tax Period.
(ii) An amended Return or claim for Tax refund for any Straddle
Period shall be filed by the party responsible for filing the original Return
hereunder if either Buyer or Seller so requests, except that such filing shall
not be done without the consent (which shall not be unreasonably withheld or
delayed) of Buyer (if the request is made by Seller) or of Seller (if the
request is made by Buyer).
(iii) Any amended Return or claim for Tax refund for any Post-
Closing Period other than a Straddle Period shall be filed, or caused to be
filed, only by Buyer, who shall not be obligated to make (or cause to be made)
such filing. Buyer shall not, without the prior written consent of Seller (which
consent shall not be unreasonably withheld or delayed) file, or cause to be
filed, any amended Return or claim for Tax refund for any Post-Closing Period to
the extent that such filing, if accepted, reasonably might change the Tax
liability of Seller for any Pre-Closing Period.
12.5 PREPARATION AND FILING OF RETURNS.
(A) SELLER'S RESPONSIBILITIES. Seller shall have the right and
obligation to timely prepare and file, and cause to be timely prepared and
filed, when due:
(i) any Return that is required to include the operations,
ownership, assets or activities of the Company for Tax Periods ending on or
before the Closing Date; and
(ii) all Returns for transfer costs to be paid by Seller pursuant to
the terms hereof.
(B) BUYERS' RIGHTS AND RESPONSIBILITIES. Buyer shall have the right and
obligation to timely prepare and file, or cause to be timely prepared and filed,
when due:
(i) all Returns that are required to include the operations,
ownership, assets or activities of the Company for any Tax Periods ending after
the Closing Date (including all Straddle Period Returns); and
(ii) all Returns for transfer costs to be paid by Buyer pursuant to
the terms hereof.
(C) PREPARATION OF RETURNS.
(i) Seller shall provide to Buyer such Tax information as is
reasonably requested by Buyer with respect to the operations, ownership, assets
or activities of the Companies or the Subsidiaries for Pre-Closing Periods to
the extent such information is relevant to any Return which Buyer has the right
and obligation hereunder to file.
(ii) Seller shall, on the one hand, or Buyer shall, on the other,
with respect to any Return which such party is responsible hereunder for
preparing and filing, or causing to be prepared and filed, make such Return and
related work papers available for review by the other party if the Return (A) is
with respect to Taxes for which the other party or one of its affiliates may be
liable hereunder or under applicable tax law, or (B) claims Tax Benefits which
the other party or one of its Affiliates is entitled to receive hereunder. The
filing party shall use its reasonable best efforts to make Returns available for
review as required under this paragraph sufficiently in advance of the due date
for filing such Returns to provide the non-filing party with a meaningful
opportunity to analyze and comment on such Returns and have such Returns
modified before filing, accepting the position of the filing party unless such
position is contrary to the provisions of Section 12.5(d) hereof.
(D) CONSISTENCY OF ACCOUNTING METHOD. Any Return which includes or is
based on the operations, ownership, assets or activities of the Company or for
any Pre-Closing Period, and any Return which includes or is based on the
operations, ownership, assets or activities of the Company for any Post-Closing
Period to the extent the items reported on such Return might reasonably increase
any Tax liability of Seller for any Pre-Closing Period or any Straddle Period
shall be prepared in accordance with past Tax accounting practices used with
respect to the Returns in question (unless such past practices are no longer
permissible under the applicable tax law), and to the extent any items are not
covered by past
practices (or in the event such past practices are no longer permissible under
the applicable tax law), in accordance with reasonable Tax accounting practices
selected by the filing party with respect to such Return under this Agreement
with the consent (not to be unreasonably withheld or delayed) of the non-filing
party.
12.6 TAX CONTROVERSIES: ASSISTANCE AND COOPERATION.
(A) NOTICE. In the event any Tax Authority informs Seller, on the one
hand, or Buyer or Company, on the other, of any notice of proposed audit, claim,
assessment or other dispute concerning an amount of Taxes with respect to which
the other party may incur liability hereunder, the party so informed shall
promptly notify the other party of such matter. Such notice shall contain
factual information (to the extent known) describing any asserted Tax liability
in reasonable detail and shall be accompanied by copies of any notice or other
documents received from any Tax authority with respect to such matter. If an
indemnified party has knowledge of an asserted Tax liability with respect to a
matter for which it is to be indemnified hereunder and such party fails to
provide the indemnifying party prompt notice of such asserted Tax liability,
then (A) if the indemnifying party is precluded from contesting the asserted Tax
liability in any forum as a result of the failure to give prompt notice, the
indemnifying party shall have no obligation to indemnify the indemnified party
for Taxes arising out of such asserted Tax liability, and (B) if the
indemnifying party is not precluded from contesting the asserted Tax liability
in any forum, but such failure to provide prompt notice results in a monetary
detriment to the indemnifying party, then any amount which the indemnifying
party is otherwise required to pay the indemnified party pursuant to this
Agreement shall be reduced by the amount of such detriment.
(B) CONTROL RIGHTS. The filing party under this Article XII shall
control any audits, disputes, administrative, judicial or other proceedings
related to Taxes with respect to which either party may incur liability
hereunder. Subject to the preceding sentence, in the event an adverse
determination may result in each party having responsibility for any amount of
Taxes under this Article XII, each party shall be entitled to fully participate
in that portion of the proceedings relating to the Taxes with respect to which
it may incur liability hereunder. For purposes of this Section 12.6(b), the term
"participation" shall include (i) participation in conferences, meetings or
proceedings with any Tax Authority, the subject matter of which includes an item
for which such party may have liability hereunder, (ii) participation in
appearances before any court or tribunal, the subject matter of which includes
an item for which a party may have liability hereunder, and (iii) with respect
to the matters described in the preceding clauses (i) and (ii), participation in
the submission and determination of the content of the documentation, protests,
memorandum of fact and law, briefs, and the conduct of oral arguments and
presentations.
(C) CONSENT TO SETTLEMENT. Buyer and Seller shall not agree to settle
any Tax liability or compromise any claim with respect to Taxes, which
settlement or compromise any affect the liability for Taxes hereunder (or right
to tax benefit) of the other party, without such other party's consent (which
consent shall not be unreasonably withheld or delayed).
(D) EXPENSES. Buyer and Seller shall bear their own expenses incurred in
connection with audits and other administrative judicial proceedings relating to
Taxes for which such party and its affiliates are liable under this Article XII.
(E) ASSISTANCE AND COOPERATION. Seller on the one hand, and Ixchange,
Buyer and Company, on the other, shall cooperate (and cause their affiliates to
cooperate) with each other and with each other's agents, including accounting
firms and legal counsel, in connection with Tax matters relating to Company,
including (i) preparation and filing of Returns, (ii) determining the liability
and amount of any Taxes due or the right to and amount of any refund of Taxes,
(iii) examinations of Returns, and (iv) any administrative or judicial
proceeding in respect of Taxes assessed or proposed to be assessed. Such
cooperation shall include each party making all information and documents in its
possession relating to Company and available to the other party. The parties
shall retain all Returns, schedules and work papers, and all material records
and other documents relating thereto, until the expiration of the applicable
statute of limitations (including, to the extent notified by any party, any
extension thereof) of the Tax Period to which such Returns and other documents
and information relate. Each of the parties shall also make available to the
other party, as reasonably requested and available, personnel (including
officers, directors, employees and agents) responsible for preparing,
maintaining, and interpreting information and documents relevant to Taxes, and
personnel reasonably required as witnesses or for purposes of providing
information or documents in connection with any administrative or judicial
proceedings relating to Taxes.
ARTICLE XIII
GENERAL PROVISIONS
13.1 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS. All
representations, warranties, and agreements in this Agreement or in any
instrument delivered pursuant to this Agreement survive the Closing as provided
herein.
13.2 NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed sufficiently given and served for all purposes when
personally delivered or given by telex or machine-confirmed facsimile or three
business days after a writing is deposited in the United States mail, first
class postage or other charges prepaid and registered, return receipt requested,
addressed as follows (or at such other address for a party as shall be specified
by like notice):
(a) if to Buyer:
Ixchange Technology Holdings Limited
0xx Xxxxx
Xxxxxxxx Xxxx
Xxxxxxx Xxxxxx
Xxxxxxx
Attention: Johan Buys
Phone: 000-00-00-000-0000
Fax: 000-00-0-000-0000
with a copy to:
Xxxxxxx Xxxxx & Xxxxx XXX
0000 Xxxxxxxx Center
000 Xxxxx Xxx.
Xxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
(b) if to Company:
Bendata, Inc.
0000 Xxxxx Xxxxxxx Xxxx.
Xxxxx 000
Xxxxxxxx Xxxxxxx, XX 00000
Attention: President
Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Holme, Xxxxxxx & Xxxx LLP
00 X. Xxxxxxx Xxx., Xxxxx 0000
Xxxxxxxx Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
c) if to Seller:
Astea International Inc.
000 Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: President
Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Astea International Inc.
00 Xxxxxxxxx Xxxxxxxx
Xxxxxxx, XX 00000
Attention: General Counsel
Phone: (000) 000-0000
Fax: (000) 000-0000
13.3 INTERPRETATION. When a reference is made in this Agreement to
Sections or Exhibits, such reference shall be to a Section or Exhibit to this
Agreement unless otherwise indicated. The words "INCLUDE", "INCLUDES", and
"INCLUDING" when used therein shall be deemed in each case to be followed by the
words "WITHOUT LIMITATION". The table of contents and headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. This Agreement has been negotiated
by the respective parties hereto and their attorneys and the language hereof
will not be construed for or against either party. A reference to a Section or
an Exhibit will mean a section in, or exhibit to, this Agreement unless
otherwise explicitly set forth.
13.4 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to each of the other parties, it being understood that
all parties need not sign the same counterpart.
13.5 MISCELLANEOUS. This Agreement and the documents referred to herein
(a) constitute the entire agreement among the parties with respect to the
subject matter hereof and supersede all prior agreements and understandings,
both written and oral, among the parties with respect to the subject matter
hereof; (b) are not intended to confer upon any other person any rights or
remedies hereunder; and (c) shall not be assigned by operation of law or
otherwise except as otherwise specifically provided.
13.6 NO JOINT VENTURE. Nothing contained in this Agreement will be deemed
or construed as creating a joint venture or partnership between any of the
parties hereto. No party is by virtue of this Agreement authorized as an agent,
employee, or legal representative of any other party. No party will have the
power to control the activities and operations of any other and their status is,
and at all times, will continue to be, that of independent contractors with
respect to each other. No party will have any power or authority to bind or
commit any other. No party will hold itself out as having any authority or
relationship in contravention of this Section.
13.7 TRANSACTIONAL EXPENSES. Whether or not the transactions contemplated
by this Agreement are consummated, each of Buyer and Company shall pay its own
fees and expenses incident to the negotiation, preparation, execution, delivery
and performance hereof, including, without limitation, the fees and expenses of
its counsel, accountants and other experts.
13.8 CONFIDENTIALITY. Each party ("Receiving Party") acknowledges that
the Confidential Information of the other party ("Disclosing Party") is the
valuable confidential property of the Disclosing Party. Each party agrees to
hold Confidential Information received or otherwise obtained from the other in
confidence. The Receiving Party shall not disclose the Confidential Information
of the Disclosing Party to any third persons or use it in any manner except as
contemplated by this Agreement. The parties further agree that Confidential
Information of the Disclosing Party shall be disclosed to the Receiving Party's
officers, employees, and third-party consultants, only on a reasonable need-to-
know basis and only with instructions to such persons that they comply with the
restrictions of this provision. "Confidential Information" means all
information, including all technical and commercial information and data,
disclosed by one party to this Agreement to the other or otherwise obtained,
directly or indirectly, by one party from the other, in the course of this
transaction with respect to Buyer, Ixchange, Company or Seller which, at the
time it was disclosed to or otherwise obtained by a party, was not rightfully in
that party's possession and was not common general public knowledge. This
transaction and its terms and conditions shall be treated as Confidential
Information. The restrictions of this section shall not, (i) apply to
Confidential Information of the Disclosing Party (a) which enters into the
public domain through no fault of the Receiving Party, (b) which is disclosed to
the Receiving Party by a third party with no restriction on disclosure, or (c)
which is independently developed by the Receiving Party; or (ii) prohibit
disclosure of Confidential Information of the Disclosing Party when required by
a court or governmental agency of competent jurisdiction so long as the
Receiving Party takes appropriate steps to attempt to obtain a protective or
other such order with respect to such Confidential Information and advises the
Disclosing Party as soon as reasonably possible of the requirement to make such
disclosure; or (iii) restrict Buyer in its due diligence. This confidentiality
and nondisclosure section shall, except as provided herein, survive termination
of this Agreement and the Closing.
Notwithstanding the foregoing, the limitations on the use of Confidential
Information shall not be construed to limit Buyer's and Ixchange's right to make
full use of the assets of the Company after the Closing. Except as otherwise
provided in this Agreement, the terms of this Agreement and the Transaction
shall not be disclosed by either party except to confirm that a sale has
occurred after consummation of the Transaction.
13.9 GOVERNING LAW. This Agreement shall be governed in all respects,
including validity, interpretation and effect, by the laws of the State of
Colorado. The parties agree that Colorado Springs,
Colorado, shall be the exclusive proper place of venue for any action, dispute,
or controversy arising from or in connection with this Agreement. The parties
irrevocably agree that any legal or equitable proceeding arising out of or in
connection with this Agreement shall be the county in which the Company is
located. Except for any equitable claims, no party shall commence any legal
proceeding arising or in connection with this Agreement unless such party shall
first give a written notice to the other party setting forth the nature of the
claim or dispute. The parties shall attempt in good faith to resolve such claim
or dispute by meditation under the CPR Institute for Dispute Resolution ("CPR")
Model Mediation Procedure for Business Disputes in effect on the date of this
Agreement. If the parties cannot agree on the selection of a mediator within
twenty (20) days after receipt of the dispute notice, the mediator shall be
selected in accordance with the CPR Procedure. If any legal action or any
mediation or other proceeding is brought for the enforcement of this Agreement
or because of an alleged dispute, breach, default or misrepresentation in
connection with any provision of this Agreement, the successful or prevailing
party shall be entitled to recover reasonable attorneys' fees and other costs
incurred in that action or proceeding, in addition to any other relief to which
it may be entitled.
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SIGNATURE PAGE - STOCK PURCHASE AGREEMENT
IN WITNESS WHEREOF, Buyer, Ixchange, Company, Astea and Network have caused
this Agreement to be executed by their respective and duly authorized officers,
and the Shareholders or their respective trustees have duly executed this
Agreement, all as of the date first written above.
BENDATA HOLDING, INC. IXCHANGE TECHNOLOGY HOLDINGS LIMITED
By: /s/ Xxxx Buys
By: /s/ Xxxx Buys Xxxx Buys, Chairman
Xxxx Buys, President
BENDATA, INC. ASTEA INTERNATIONAL INC.
By: /s/ Xxxxx Xxxxx By: /s/ Xxxxxx X. Xxxxxxxx
Xxxxx Xxxxx, President Xxxxxx X. Xxxxxxxx, Xx.,
Vice President and Secretary
BENDATA (EUROPE) LIMITED LLC NETWORK DATA, INC.
By Bendata, Inc., Member
By: /s/ Xxxx Xxxxxxx
By: /s/ Xxxxx Xxxxx Xxxx Xxxxxxx, Treasurer
Xxxxx Xxxxx, President
