1
Exhibit 10.18
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement"), dated as of August 7,
1998, between SEEC Technologies Asia Private Ltd., a corporation organized and
existing under the laws of the Republic of India (the "Buyer") and a majority
owned subsidiary of SEEC, Inc., a corporation organized and existing under the
laws of the Commonwealth of Pennsylvania ("SEEC "), and ERA SOFTWARE SYSTEMS
PRIVATE LIMITED, a corporation existing under the laws of the Republic of India,
(the "Seller ").
PREAMBLE
A. Pursuant to a Marketing Agreement dated March 1, 1996 between SEEC
and Seller (the "Marketing Agreement "), Seller has certain non-exclusive rights
to distribute SEEC products in India.
B. Pursuant to the terms of a Product Purchase Agreement date March 31,
1996 between SEEC and Seller (the "Product Agreement "), Seller performs certain
design and development services related to SEEC products on a "work for hire "
basis.
C. Seller desires to sell, and SEEC wishes to acquire, certain of the
assets, properties and business as a going concern of that portion of the
Seller's business which relates in any way to the services provided by the
Seller pursuant to the Marketing Agreement and the Product Agreement
(collectively, the "SEEC-Related Business ").
NOW, THEREFORE, Buyer and Seller, in consideration of the mutual
representations, warranties and covenants contained in this Agreement and other
good and valuable consideration, the sufficiency of which is acknowledged, and
subject to the terms and conditions hereinafter set forth, and intending to be
legally bound, do hereby agree as follows:
ARTICLE 1
DEFINITIONS
Terms not otherwise defined in this Agreement shall have the following
meanings:
1.1 "Business" means the SEEC-Related Business.
1.2 "Business Employees" shall mean any individual who was an employee
of the Business on the day immediately preceding the Effective Date.
1.3 "Closing Date" means August 10, 1998 or such other date as the
Parties shall mutually agree.
2
1.4 "Contracts" means all purchase orders, sales orders, distributor or
sub-distributor agreements, franchise agreements, sales representation
agreements, warranty agreements, service agreements, employment and consulting
agreements, guaranty agreements, confidentiality agreements, and all other
agreements, contracts or leases Related to the Business including the Material
Contracts.
1.5 "Damages" means any liability, loss, cost, payment, expense or
other damage (including, without limitation, reasonable attorneys' fees and
expenses).
1.6 "Effective Date " shall mean February 28, 1998.
1.7 "Environmental Laws" means all applicable laws, rules, regulations,
or ordinances which are applicable to the Business and which relate to (a)
pollution, or loss of or injury to, or adverse effect upon, the environment, (b)
the protection, cleanup or restoration of, or removal, remediation or mitigation
of conditions affecting the environment, (c) the release, discharge, emission,
generation, handling, transportation, use, treatment, storage or disposal of any
Hazardous Substances, or (d) the protection of the safety or health of humans,
including, but not limited to, exposure to Hazardous Substances.
1.8 "Closing Balance Sheet" shall have the meaning set forth in Section
4.3.1.
1.9 "Hazardous Substance" means any pollutant, contaminant, petroleum
or petroleum product, toxic substance, hazardous or extremely hazardous
substance or chemical, solid or hazardous waste, liquid, industrial or other
waste, hazardous material, or other material, substance or agent that is
designated or regulated under the Environmental Laws.
1.10 "Licenses" means the permits, authorizations, franchises and other
approvals from any governmental or other authority that are Related to the
Business including those listed on Schedule 5.10.
1.11 "Lien" means any lien, security interest, mortgage, pledge,
retention of title agreement, or other encumbrance.
1.12 "Material Adverse Effect" means a material adverse effect on the
Business or the Purchased Assets.
1.13 "Material Contracts" means the contracts set forth on Schedule
5.5.
1.14 "New Business Employees" means those Business Employees who are
employed by Buyer as of the Effective Date.
1.15 "Permitted Liens" means Liens for taxes, assessments and other
governmental charges, if such taxes, assessments or charges shall not be due and
payable, or if the validity thereof is being contested in good
3
faith; (b) workmen's, repairmen's or other similar liens arising or incurred in
the ordinary course of business in respect of obligations which are not overdue,
or which are being contested in good faith;
1.16 "Purchase Price" shall have the meaning set forth in Section 4.1.
1.17 "Purchased Assets" shall mean the assets of Seller Related to the
Business which are to be transferred to the Buyer and which are described in
Section 2.1.
1.18 "Related to the Business" means used by, or useful to Seller, in,
arising from, or related to, the Business.
ARTICLE 2
SALE AND PURCHASE OF PURCHASED ASSETS
2.1 Purchased Assets. Subject to the terms and conditions hereof,
Seller agrees to sell, assign, transfer and deliver or cause to be sold,
assigned, transferred and delivered to Buyer free and clear of all Liens (other
than Permitted Liens), and Buyer agrees to purchase, pay for and accept from
Seller, all the assets, properties, interests and rights, tangible and
intangible, personal and mixed, (collectively referred to hereinafter as the
"Purchased Assets") which are Related to the Business, including but not limited
to:
2.1.1 All machinery, equipment, furniture, office equipment
and supplies, computer hardware and software, fixtures, listed on
Schedule 2.1.1;
2.1.2 All land and other real property, including any
buildings, fixtures and other improvements thereon, as described on
Schedule 2.1.2 (the "Real Property");
2.1.3 All Contracts;
2.1.4 All Licenses;
2.1.5 All supplies, marketing and sales literature (including
catalogs) that are Related to the Business;
2.1.6 All business records, including sales records, customer
lists and suppliers' lists that are Related to the Business;
2.1.7 The goodwill and going concern value, that are related
to the Business, and the transfer of personnel involved in the
business.
4
2.1.8 All rights and interests under or pursuant to all
warranties and guarantees of or made by suppliers of the Business in
connection with the Purchased Assets, the Assumed Liabilities or that
are otherwise Related to the Business;
2.1.9 All drawings, technical information and data, trade
secrets and other intellectual property Related to the Business
(collectively, the "Intellectual Property").
2.1.10 All other assets and properties of Seller Related to
the Business.
ARTICLE 3
LIABILITIES
3.1 Assumed Liabilities. On the Closing Date, Buyer will assume and
agree to pay, perform and discharge as of the Effective Date (i) any liability
of Seller but only if and to the extent reflected on the Final Balance Sheet,
(ii) any performance obligations of Seller under Contracts but only to the
extent such obligations arise from and after the Effective Date, and (iii) any
obligations and liabilities which are listed on Schedule 3.1 (all the
liabilities and obligations which are assumed by Buyer pursuant to this Section
3.1 are referred to collectively as the "Assumed Liabilities"). Except for the
Assumed Liabilities, Buyer is not assuming and shall have absolutely no
liability or obligation with respect to any other liability or obligation of
Seller except as expressly set forth in this Agreement (all such liabilities and
obligations of Seller which are not Assumed Liabilities are referred to
collectively as the "Retained Liabilities").
ARTICLE 4
PRICE
4.1 Purchase Price. The purchase price to be paid by Buyer to Seller
pursuant to this Agreement (the "Purchase Price") shall be the amount equivalent
to US $1,117,000.00 (the "Purchase Price"), for the following :
a) Towards all the assets as mentioned in clause 2.1.1 and 2.1.2 above and
more fully described in schedules 2.1.2 and 2.1.2. - $ 347,000.00
b) Towards all the other assets 2.1.3 to 2.1.10 and the goodwill
associated with the said assets - $770,000
c) The asssumed liabilities mentioned in clause 3.1 and described in
schedule 3.1 is accepted as an amount equivalent to $81,000. Taking
this into consideration, the net amount to be paid to the seller shall
be the amount equivalent to $ 1,036,000.
4.2 Terms of payment of net consideration;
4.2.1 On or before the Closing Date, Buyer shall pay to Seller
amount equivalent to US $1,036,000 of the Purchase Price, by wire
transfer to an account designated by Seller .
5
4.2.2 Seller shall furnish a Bank guarantee to the buyer for
the amount equivalent to the US $ 100,000 as security for sellers
indemnification obligations under Article 13 within two weeks from the
closing date
4.3 Closing Balance Sheet.
4.3.1 Seller has delivered to buyer an audited balance sheet
for the Business as of the close of business on the Effective Date (the
"Closing Balance Sheet") which Seller represents has been prepared in a
manner consistent with the preparation of the unaudited balance sheet
of the for the Business dated July 31, 1997, including schedules
thereto (the "Balance Sheet") which was previously delivered to Buyer .
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller makes the following representations and warranties to Buyer,
each of which is true and correct on the date hereof and as of the Effective
Date, and shall survive after the Closing for a period of one year.
5.1 Organization: Power and Authority. Seller is a corporation duly
organized, validly existing and in good standing under the laws of the Republic
of India. Seller has all requisite power and authority, corporate and otherwise,
to own or lease the Purchased Assets, to execute, deliver and perform the
obligations of Seller under this Agreement, and to consummate the transactions
contemplated hereby.
5.2 Due Authorization and Execution; Effect of Agreement. The
execution, delivery and performance by Seller of this Agreement and the
consummation by Seller of the transactions contemplated hereby have been duly
authorized by all necessary corporate action required to be taken on the part of
Seller. This Agreement has been duly and validly executed and delivered by
Seller and constitutes the valid and binding obligation of Seller, enforceable
in accordance with its terms.
5.3 Financial Information. Attached hereto as Schedule 5.3 are the
Balance Sheet and an unaudited income statement for Seller for the period ended
July 31, 1997 (the "Income Statement", and with the Balance Sheet collectively
the "Financial Statements"). As set forth on Schedule 5.3, the Balance Sheet and
Income Statement have been compiled in accordance with generally accepted
accounting principles, and fairly present, in all material respects, the
financial position and the results of the operations of the Seller as of and for
the period ended July 31, 1997. Except as set forth on Schedule 5.3, Seller has
no liabilities or obligations of any kind related to the Business which are not
set forth on the Balance Sheet.
6
5.4 Title to Purchased Assets. Seller has good title to the Purchased
Assets free and clear of all Liens, except for Permitted Liens.
5.5 Contracts. Set forth on Schedule 5.5 is a list of each agreement,
obligation or commitment Related to the Business which is material to the
Business (each such item set forth on Schedule 5.5 being referred to as a
"Material Contract"). All Material Contracts are presently in full force and
effect and neither Seller nor any other party thereto is in breach of any of
their respective obligations thereunder.
5.6 Employees.
5.6.1 Schedule 5.6.1 contains a correct and complete list of
the Business Employees.
5.6.2 Except as set forth on Schedule 5.6.2, (a) there are no
agreements, contracts, or other arrangements applicable to Business
Employees and (b) no work stoppage or other dispute involving Business
Employees is pending or threatened.
5.6.3 Except as set forth on Schedule 5.6.3,, Seller has not
received any labor practice complaints Related to the Business.
5.6.4 Except as set forth on Schedule 5.6.4, there are no
employment, severance or consulting agreements between Seller and any
of the current or former employees of the Business.
5.7 Litigation; Intellectual Property. Except as set forth on Schedule
5.7, no order, writ, injunction or decree of any court or other governmental
agency that is Related to the Business is in effect nor is any lawsuit,
arbitration, investigation, or administrative proceeding that is Related to the
Business pending or threatened. Seller's ownership and use of the Intellectual
Property does not infringe on the rights of any third party.
5.8 Taxes. All taxes (including any interest or penalties relating
thereto) and assessments which are due and payable by Seller and that are
Related to the Business have been duly reported, fully paid and discharged as
reported by Seller and there are no such unpaid items which are or could become
a Lien on the Purchased Assets.
5.9 Compliance with Laws. The operation of the Business is, and has
been, in compliance with all laws, statutes, rules and regulations that are
applicable to the Business.
5.10 Permits and Licenses.. All material Licenses required by any
applicable law, rule or regulation which are necessary for the operation of the
Business have been obtained, are currently in effect and are identified on
Schedule 5.10 hereto and
7
are transferable to Buyer without the consent of any other person, entity or
governmental body . Seller is in full compliance with all such Licenses in
connection with the operation of the Business.
5.11 Mortgage. The Seller is not in breach of any provisions of the
mortgage on the Real Property (the "Mortgage").
5.12 Sufficiency of Purchased Assets. The Purchased Assets together
with Buyer's rights under the other agreements executed pursuant to the terms of
this Agreement are sufficient to permit the Buyer to continue to operate the
Business after the Effective Date in the same manner as it is presently being
conducted by Seller without interruption or delay.
5.13 Employee Benefits. Schedule 5.13.1 lists each pension, retirement,
profit-sharing, deferred compensation, bonus, incentive, performance, stock
option, stock appreciation, phantom stock, stock purchase, restricted stock,
medical, hospitalization, vision, dental or other health, life, disability,
severance, termination or other employee benefit plan, program, arrangement or
agreement provided to the Business Employees (each, an "Employee Benefit Plan").
Except as set forth on Schedule 5.13, each Employee Benefit Plan complies in all
material respects, and has been operated and administered in all material
respects in accordance with, all applicable requirements of all laws and
regulations of any governmental body or authority.
5.14 No Conflict. The execution, delivery and performance by Seller of
this Agreement (i) will not violate any provisions of the law, rule or
regulation, order, judgment or decree applicable to Seller; (ii) will not
require any consent or approval of, or filing with or notice to, any
governmental or regulatory authority under any provisions of law applicable to
Seller (other than any action required to be taken by Buyer); (iii) will not
violate any provisions of it charter documents; (iv) will not require any
consent, approval or notice under, and will not conflict with, or result in the
breach or termination of, or constitute a default under, or result in the
acceleration of the performance by Seller under any Contract or the Mortgage;
and (v) will not result in the creation of any material lien upon any of the
Purchased Assets.
5.15 Purchased Assets. Seller is aware of no fact or circumstance which
would diminish the value of the Purchased Assets when transferred to Buyer.
5.16 Absence of Undisclosed Known Liabilities. Except for the Assumed
Liabilities and except as and to the extent reflected or reserved against in the
Financial Statements and/or the Closing Balance Sheet or as otherwise disclosed
on Schedule 5.16, the Business has no accrued, known or fixed liabilities or
obligations arising from its conduct of the Business during the three (3) years
prior to the date hereof, including, without limitation, product liability,
patent, trademark, criminal or civil liabilities, and Seller has no knowledge of
any basis for the assertion against the Business of any such liabilities or
obligations.
8
5.17 No Material Adverse Change. Except as otherwise described herein
and since July 31, 1997, there has been no material adverse change in the
financial condition of the Seller, the Purchased Assets, or the Business.
Without limiting the foregoing, the Business has not suffered any material
damage, destruction or loss to any material tangible asset, whether or not
covered by insurance.
5.18 Disclosure. No representation or warranty by Seller in this
Agreement, and no Exhibit, Schedule, document, statement or certificate
furnished or to be furnished to Buyer pursuant hereto or in connection with the
transactions contemplated hereby, contains or will contain any untrue statement
of a material fact or omits or will omit to state a material fact necessary to
(a) make the statements or facts contained herein or therein not misleading or
(b) provide Buyer with adequate and complete information as to the Business and
its prospects for the future.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer makes the following representations and warranties to Seller,
each of which is true and correct on the date hereof and as of the Effective
Date, and shall survive for a period of one year after the Effective Date.
6.1 Organization; Power and Authority. SEEC is a corporation duly
organized, validly existing and in good standing under the laws of the
Commonwealth of Pennsylvania. The Subsidiary is a corporation duly organized,
validly existing and in good standing under the laws of the Republic of India.
Each of SEEC and the Subsidiary has all requisite power and authority, corporate
and otherwise, to execute, deliver and perform the obligations of Buyer under
this Agreement and to consummate the transactions contemplated hereby.
6.2 Due Authorization and Execution; Effect of Agreement. The
execution, delivery and performance by SEEC and the Subsidiary of this Agreement
and the consummation by Buyer of the transactions contemplated hereby have been
duly authorized by all necessary corporate action. This Agreement has been duly
and validly executed and delivered by Buyer and constitutes the valid and
binding obligation of Buyer, enforceable in accordance with its terms.
6.3 Litigation. There is no claim or litigation involving SEEC which is
pending or threatened that seeks to enjoin or to obtain damages in respect of
the consummation of the transactions contemplated by this Agreement.
9
ARTICLE 7
COVENANTS OF SELLER
Seller hereby covenants and agrees with Buyer as follows:
7.1 Cooperation by Seller. Seller will use all reasonable efforts to
secure all consents, approvals, notations and authorizations from third parties
as shall be required in order to enable Buyer to effect the transactions
contemplated by this Agreement, and will otherwise use all reasonable efforts to
cause the consummation of the transactions contemplated hereby in accordance
with the terms and conditions hereof.
7.2 Access to Information. From the date hereof through the Closing
Date, Seller shall afford to Buyer and Buyer's accountants, consultants and
counsel, reasonable access, upon reasonable notice, to all of the properties,
books, contracts, commitments and records of Seller.
7.3 Conduct of Business. From the date hereof through the Closing Date,
Seller shall carry on the business of the Business in the ordinary and regular
course substantially in the same manner as heretofore conducted, except as
contemplated by this Agreement.
7.4.1 Non-Transferability.
7.4.2 To the extent that any of the Purchased Assets are not
capable of being sold, assigned, transferred, delivered or subleased
without the consent or waiver of any third person (including a
government or governmental unit), or if such sale, assignment,
transfer, delivery or sublease or attempted sale, assignment, transfer,
delivery or sublease would constitute a breach thereof, or a violation
of any law, decree, order, regulation or other governmental edict, this
Agreement shall not constitute a sale, assignment, transfer, delivery
or sublease thereof, or an attempted sale, assignment, transfer,
delivery or sublease thereof. This Agreement and the other related
documents to be delivered at closing shall not transfer or obligate
Seller to transfer any right, title or interest of any third party in
any asset.
7.4.2. Anything in this Agreement to the contrary
notwithstanding, Seller shall not be obligated to sell, assign,
transfer, deliver or sublease to Buyer any of the Purchased Assets
without first having obtained all necessary consents and waivers
including the substitution of Buyer for Seller and the notation of all
applicable agreements. Seller shall use all reasonable efforts, and
Buyer shall cooperate with Seller to obtain said consents, waivers and
notations and to resolve the impediments to the sale, assignment,
transfer, delivery or subleases required by this Agreement and to
obtain any other consents, waivers and notations necessary, to convey
to Buyer any of the Purchased Assets; provided, however, that Seller
shall not be obligated to pay any consideration therefor to the party
from whom any such consent, waiver or notation is requested nor shall
Seller be obligated to incur any obligation as a secondary obligor or
surety with respect to any contract, agreement, lease or arrangement in
order to obtain any consent,
10
waiver or notation without Buyer providing Seller with indemnification
for such obligations in each case satisfactory to Seller.
7.4.3 To the extent that the consents, waivers and notations
referred to in this Section are not obtained by Seller, or until the
impediments to the sale, assignment, transfer, delivery or sublease
referred to therein are resolved, Seller shall use all reasonable
efforts to (i) provide, at the request of Buyer, to Buyer the benefits
of any Purchased Asset referred to in Section 7.4.1 (ii) cooperate in
any reasonable and lawful arrangement designed to provide such benefits
to Buyer and (iii) enforce, at the request of Buyer, for the account of
Buyer, any rights of Seller arising from any Purchased Asset referred
to in Section 7.4.1 against any third person (including a government or
governmental unit).
7.5 Further Assurances. At any time and from time to time after the
Closing Date, Seller shall, at the reasonable request of Buyer, execute and
deliver any further instruments and documents, and take all such further action
as Buyer may reasonably request in order to consummate more effectively the
transactions contemplated hereby.
7.6 Governmental Matters. Seller shall comply with all laws which are
applicable to the transactions contemplated hereby and pursuant to which
government notification or approval of such transaction is necessary. Seller
shall cooperate with Buyer in providing any information about Seller which is
required for this purpose and in promptly filing, separately or jointly with
Buyer, any applications for such government notification or approval.
ARTICLE 8
COVENANTS OF BUYER
Buyer hereby covenants and agrees with Seller as follows:
8.1 Cooperation by Buyer. Buyer will use all reasonable efforts to
secure all consents, approvals, notations and authorizations from third parties
(and any cost or expense related thereto shall be borne by Buyer) as shall be
required in order to enable Buyer to effect the transactions contemplated by
this Agreement, and will otherwise use all reasonable efforts to cause the
consummation of the transactions contemplated hereby in accordance with the
terms and conditions hereof.
8.2 Books and Records; Personnel. From and after the Closing Date:
8.2.1 Buyer shall not dispose of or destroy any business
records and files of Seller Related to the Business for periods prior
to the Closing Date, without first offering to turn over possession
thereof to Seller;
11
8.2.2 To the extent reasonably required by Seller, Buyer shall
allow Seller and its agents access to all business records and files of
Seller Related to the Business which relate to periods prior to the
Closing Date, upon reasonable advance notice during normal working
hours at any location where such records are stored, and Seller shall
have the right, at its own expense, to make copies of any such records
and files, provided however, that any such access or copying shall be
had or done in such a manner so as not to interfere with the normal
conduct of the Business by Buyer; and
8.3 Sales and Transfer Taxes. Buyer shall be responsible for and shall
pay all sales, transfer, deed, duties, stamp and other similar taxes, duties and
transfer fees applicable to the transactions contemplated by this Agreement.
8.4 Further Assurances. At any time and from time to time prior to and
after the Closing Date, Buyer shall, at the reasonable request of Seller,
execute and deliver any further instruments or documents and take all such
further action as Seller may reasonably request in order to consummate more
effectively the transactions contemplated hereby and the assumption of the
Assumed Liabilities by Buyer.
8.5 Governmental Matters. Buyer shall comply with all laws which are
applicable to the transactions contemplated hereby and pursuant to which
government notification or approval of such transaction is necessary. Buyer
shall otherwise provide any notification which, in the opinion of Buyer's
counsel, is appropriate. Buyer shall cooperate with Seller in providing any
information about Buyer which is required for this purpose and in promptly
filing, separately or jointly with Seller, any applications for such government
notification or approval.
ARTICLE 9
MUTUAL COVENANTS
9.1 Transfer of Employees. As of the Effective Date, each Business
Employee has continued to be employed by Seller for the account of Buyer, until
transferred to buyer. Until the Closing, the Seller shall provide Buyer with a
statement of the costs of salaries and other employee benefits for such Business
Employees.
9.2 Settlement of Intercompany Accounts. Within ten days after the
Closing, Buyer, SEEC and the Seller shall determine and settle all amounts owed
by either of them to the other as of the closing date.
ARTICLE 10
CONDITIONS PRECEDENT TO CLOSING
10.1 Conditions Precedent to Buyer's Obligations. The obligations of
Buyer to be performed hereunder on the Closing Date shall be subject to the
satisfaction of the following conditions, any or all of which conditions may be
waived by Buyer, in its sole discretion.
12
10.1.1 Truth of Representations and Warranties. Each
representation and warranty made by Seller in this Agreement shall be
true and correct in all material respects on and as of the Closing Date
with the same force and effect as though such representation and
warranty had been made or given on and as of the Closing Date.
10.1.2 Covenants. All of the terms, covenants and conditions
to be complied with and performed by Seller on or prior to the Closing
Date shall have been complied with or performed in all material
respects.
10.1.3 Certificate. Buyer shall have received a certificate,
dated as of the Closing Date, executed by an officer of Seller, to the
effect that the representations and warranties of Seller contained in
this Agreement are true and complete in all material respects on and as
of the Closing Date as if made on and as of that date, and that Seller
has complied with or performed all terms, covenants and conditions to
be complied with or performed by it in all material respects on or
prior to the Closing Date.
10.1.4 Adverse Proceedings. No suit, action, claim or
governmental proceeding shall be pending against, and no order, decree
or judgment of any court, agency or other governmental authority shall
have been rendered against, any party hereto which would render it
unlawful, as of the Closing Date, to effect the transactions
contemplated by this Agreement in accordance with its terms. There
shall have been no material adverse change in the Business or its
prospects for the future.
10.2 Conditions Precedent to Seller's obligations. The obligations of
Seller to be performed hereunder on the Closing Date shall be subject to the
satisfaction of the following conditions, any or all of which conditions may be
waived by Seller, in its sole discretion:
10.2.1 Truth of Representations and Warranties. Each
representation and warranty made by Buyer in this Agreement or given on
its behalf hereunder shall be true and correct in all material respects
on and as of the Closing Date with the same force and effect as though
such representation and warranty had been made or given on and as of
the Closing Date.
10.2.2 Covenants. All the terms, covenants and conditions to
be combined with and performed by Buyer on or prior to the Closing Date
shall have been complied with or performed in all material respects.
10.2.3 Certificate. Seller shall have received a certificate,
dated as of the Closing Date, executed by an officer of Buyer, to the
effect that the representations and warranties of Buyer contained in
this Agreement are true and complete in all material respects on and as
of the Closing Date as if made on and as of that date, and that Buyer
has complied with or performed all terms, covenants and conditions to
be complied with or performed by it in all material respects on or
prior to the Closing Date.
13
10.2.4 Adverse Proceedings. No suit, action, claim or
governmental proceeding shall be pending against, and no order, decree
or judgment of any court, agency or other governmental authority shall
have been rendered against, any party hereto which would render it
unlawful, as of the Closing Date, to effect the transactions
contemplated by this Agreement in accordance with its terms. There
shall have been no material adverse change in the Business or its
prospects for the future.
10.3 Notice of Conditions. In the event either Party becomes aware of
information which indicates that a condition precedent to such Party's
obligation will not be satisfied on or prior to the Closing Date, such Party
shall, within ten (10) days after becoming aware of the information, provide
notice to the other Party of the information and specify the condition precedent
which will be affected. The Party receiving such notice shall have until (a) the
Closing Date or (b) ten (10) days after receiving such notice, whichever is
later, to attempt to satisfy such condition precedent.
ARTICLE 11
CLOSING
11.1 Time and Place. The consummation of the transactions shall take
place on August 10, 1998 or at such other time as the Parties shall agree.
Notwithstanding any other provision of this Agreement, if the transactions
contemplated by this Agreement shall be consummated, all profits and losses of
the Business related to product and services sales from and after the Effective
Date shall be for the account of the Buyer.
11.2 Items to be Delivered by Seller. At the Closing, Seller shall
deliver to Buyer the following:
11.2.1 A favorable written opinion from counsel for Seller,
dated as of the Closing Date, addressed to Buyer in form and substance
satisfactory to Buyer of Schedule 11.2.1, addressing all such matters
as Buyer shall reasonably request.
11.2.2 Such bills of sale, assignments, deeds and other
documents of transfer executed by Seller as are sufficient for the
transfer of the Purchased Assets to Buyer (collectively, the "Transfer
Documents"), all of which will be in form and substance satisfactory to
Buyer and its counsel.
11.2.3 An Assignment and Assumption Agreement executed by
Seller pursuant to which the Assumed Liabilities will be assigned to
Buyer (the "Assignment Agreement") in form and substance satisfactory
to Buyer and its counsel.
11.2.4 An acknowledgement executed by Seller in form and
substance reasonably satisfactory to Buyer and its counsel and to be
effective as of the Effective Date to the effect that the Marketing
Agreement and the Product Agreement have each been terminated.
14
11.2.5 Such other documents and certificates as Buyer shall
reasonably require.
11.3 Items to be Delivered by Buyer. At the Closing, Buyer shall
deliver to the Seller following:
11.3.1 By transfer to the Seller, the Purchase Price in
immediately available funds as specified in Article 4 of this
Agreement.
11.3.2 A certified copy of the duly adopted resolutions of
Buyer's Board of Directors authorizing the transactions contemplated by
this Agreement.
11.3.3 Deleted.
11.3.4 Deleted.
ARTICLE 12
TERMINATION PRIOR TO CLOSING DATE
12.1 Termination. This Agreement may be terminated at any time prior to
the Closing Date only as follows:
12.1.1 By the mutual written consent of Buyer and Seller; or
12.1.2 By either party if a condition to its obligation to
close has not been satisfied as of the Closing Date.
ARTICLE 13
INDEMNIFICATION
13.1 Indemnification by Seller. Subject to the other provisions of this
Article 13, Seller shall indemnify and hold Buyer and its respective employees,
representatives, officers, directors and agents harmless from and against any
and all Damages suffered by Buyer resulting from, arising out of, or incurred
with respect to, or alleged to result from, arise out of or have been incurred
with respect to (a) the falsity or breach of any representation, warranty,
covenant or agreement made by Seller herein, or (b) the Retained Liabilities or
(c).
13.2 Indemnification by Buyer. Subject to the other provisions of this
Article 13, Buyer shall indemnify and hold Seller and its employees,
representatives, officers, directors and agents harmless from and against any
Damages suffered by Seller or any other member of the Seller Group resulting
from, arising out of, or incurred with respect to, or alleged to result from,
arise out of or have been incurred with respect to (a) the falsity or breach of
any representation, warranty, covenant or agreement made by Buyer herein or (b)
the Assumed Liabilities.
15
13.3 Notice and Resolution of Claim.
13.3.1 An indemnified party hereunder shall promptly give
written notice to the indemnifying party after obtaining knowledge of
any claim against the indemnified party as to which recovery may be
sought against the indemnifying party because of the indemnity set
forth above specifying in reasonable detail the claim and the basis for
indemnification. If such indemnity shall arise from the claim of a
third party, the indemnified party shall permit the indemnifying party
to assume the defense of any such claim or any litigation resulting
from such claim.
13.3.2 If the indemnifying party assumes the defense of such
claim or litigation, the obligations of the indemnifying party
hereunder shall include taking all steps necessary in the defense or
settlement of such claim or litigation (including the retention of
legal counsel) and holding the indemnified party harmless from and
against any and all Damages caused by or arising out of any settlement
approved by the indemnifying party or any judgment in connection with
such claim-or litigation. The indemnifying party shall not, in the
defense of such claim or litigation, consent to entry of any judgment
(except with the written consent of the indemnified party), or enter
into any settlement (except with the written consent of the indemnified
party), which does not include as an unconditional term thereof the
giving by the claimant or the plaintiff to the indemnified party a
release from all liability in respect of such claim or litigation.
13.3 Defense of Third-Party Claim. Failure by the indemnifying party to
notify the indemnified party of its election to defend any such claim or
litigation by a third party within forty-five (45) days after notice thereof
shall have been given to the indemnifying party shall be deemed a waiver by the
indemnifying party of its right to defend such claim or litigation. If the
indemnifying party shall not assume the defense of any such claim by a third
party or litigation resulting therefrom, the indemnified party may defend
against such claim or litigation in such manner as it may appropriate and may
settle such claim or litigation deed, however, that in settling any action in
respect of which indemnification is payable under this Article, it shall act
reasonably and in good faith.
13.4 Payment. Subject to the provisions of Section 13.6, upon final
determination by the Parties or by a court of competent jurisdiction that a
party is entitled to indemnification under this Article, the indemnifying party
shall promptly reimburse the indemnified party for any Damages.
13.5 Limits on and Conditions of Indemnification.
13.5.1 Threshold Amount. Seller shall not be liable to Buyer
for any Damages under this Agreement except to the extent that the
aggregate amount of such Damages exceeds US $10,000 (the "Threshold
Amount").
16
13.5.2 Limit of Liability. The total aggregate liability of
Seller for any claims for Damages arising under this Agreement shall
not exceed the Purchase Price.
13.6 Indemnification Claims Against Seller; Release of bank guarantee.
If Buyer shall make an indemnification claim against Seller, in respect of
any charge back to the buyer relating to contracts of the
seller taken over by the buyer and pertaining to only to the
transactions that may have occurred prior to the take over and/or
claim arising out of any defect in ownership of assets
transferred
the Buyer shall give written notice thereof (a "Claim Notice")
to Seller and to the Banker issuing bank guarantee setting forth a
description of the claim and the amount of the Damages Buyer is likely
to incur from such claim (the "Damage Amount") before February 28,
1999. Unless the Banker issuing bank guarantee receives written notice
from Seller objecting to Buyer's right to indemnification for such
claim or the amount of Damages within thirty days after Banker's
receipt of the Claim Notice, Banker issuing bank guarantee shall
release the amount claimed. It is agreed that the bank guarantee is
valid only up to February 28, 1999.
ARTICLE 14
MISCELLANEOUS
14.1 Successors and Assigns. The terms and conditions of this Agreement
shall inure to the benefit of and be binding upon the respective successors and
assigns of the Parties hereto; provided, however, that this Agreement may not be
assigned by either party (other than an assignment by SEEC to the Subsidiary)
without the express written consent of the other party hereto.
14.2 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original
and all of which when taken together shall constitute the same instrument.
14.3 Headings. The headings of the Sections of this Agreement are
inserted for convenience only and shall not be deemed to constitute part of this
Agreement or to affect the construction hereof.
14.4 Waiver. Any of the terms or conditions of this Agreement may be
waived in writing at any time by the party which is entitled to the benefits
thereof. No waiver of any of the provisions of this Agreement shall be deemed or
shall constitute a waiver of such provision at any time in the future or a
waiver
17
14.5 Expenses. Except as otherwise expressly provided for herein,
Seller and Buyer shall each pay all costs and expenses incurred by it or on its
behalf in connection with this Agreement and the transactions contemplated
hereby, including without limitation, fees and expenses of its own financial
consultants, accountants and legal counsel.
14.6 Notices. Any notice, request, instruction, consent or other
document to be given hereunder by either party hereto to the other party shall
be in writing and delivered personally or sent by registered or certified mail,
postage prepaid, as follows:
If to Seller:
Era Software Systems Pvt. Ltd.,
0-0-0000/00, Xxx Xxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxx - 500 482.
Kind attn: Xx. Xxxxx X. Xxxxxxx
With a copy to:
Mr. T.N. Xxxxxx Xxxxx,
000 X, 0xx Xxxxx, Xxxxxxxxxxx,
Xxxxxxxxx - 000 000.
Telephone No. x00-00-0000000
Telecopy No.
If to Buyer:
SEEC, Inc.
Park West Xxx
Xxxxx Xxxx Xxxx
Xxxxx 000
Xxxxxxxxxx XX 00000
Telephone No. 000-000-0000
Telecopy No. 000- 000-0000
With a copy to:
Xxxx X. Xxxxxxxxxx, Esq.
Xxxxxxx Xxxxxxxx & Xxxxxxxxxx
0000 Xxxx Xxxxx
Xxxxxxxxxx XX 00000
Telephone No. 000-000-0000
Telecopy No. 000-000-0000
or at such other address for a party as shall be specified in writing by that
party. Any notice which is delivered personally to the addresses provided herein
shall be deemed to
18
have been duly given to the party to whom it is directed upon actual receipt by
such party (or its agent for notices hereunder). Any notice which is addressed
and mailed in the manner herein provided shall be conclusively presumed to have
been duly given to the party to which it is addressed at the close of business,
local time of the recipient, on the third day after the day it is so placed in
the mail.
14.7 Governing Law. This Agreement shall be construed in accordance
with and governed by the laws of the State of Andhra Pradesh, India, without
regard to its conflicts of laws provisions.
14.8 Public Announcements. Seller and Buyer shall consult with each
other before issuing any press releases or otherwise making any public
statements with respect to this Agreement and the transactions contemplated
hereby and shall not issue or cause or permit the issuance of any such press
release or make any such public statement without the prior consent of the
other, except as may be required by law.
14.9 Severability. The Parties agree that if any provision of this
Agreement shall under any circumstances be deemed invalid or inoperative, the
Agreement shall be construed with the invalid or inoperative provision deleted
and the rights and obligations of the Parties shall be construed and enforced
accordingly and the validity and enforceability of the remaining provisions
contained herein shall not be affected or impaired thereby.
14.10 Exclusive Jurisdiction and Consent to Service of Process. The
Parties agree that any dispute arising out of or relating to this Agreement or
the transactions contemplated hereby, shall be settle by arbitration in
accordance with the arbitration Rules as presently in force in India. It is
further agreed that (i) the arbitrators will be appointed by consent of both the
parties (ii) the number of arbitrators shall be three (3); (iii) the place of
arbitration shall be Hyderabad, India and (iv) the language to be used in the
arbitral proceedings shall be English. The Parties agree that the award of the
arbitrators shall be the sole and exclusive remedy between them regarding any
claims, counterclaims, issues or accountings presented or pled to the
arbitrators, that it shall be made and shall promptly be free of any tax,
deduction or offset; and that any costs, fees or taxes incident to enforcing the
award shall, to the maximum extent permitted by law, be charged against the
party resisting such enforcement.
14.14 Amendment. No amendment, modification or alteration of the terms
or provisions of this Agreement shall be binding unless the same shall be in
writing and duly executed by the Parties hereto.
14.15 Entire Agreement. This Agreement and the Schedules and other
documents referred to herein constitute the entire understanding and agreement
of the Parties with respect to the subject matter hereof and supersede all prior
agreements, arrangements and understandings relating to the matters provided for
herein.
19
IN WITNESS WHEREOF, each of the Parties hereto has caused this
Agreement to be executed on its behalf as of the date first above written.
ATTEST: ERA SOFTWARE SYSTEMS PVT. LTD
/s/ R. Murali /s/ T. N. Xxxxxx Xxxxx
---------------------------- -----------------------------------
Title: Title: Director
ATTEST: SEEC Technologies Asia PVT Ltd.
/s/ Xxxxxxxx Xxxx By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------- -----------------------------------
Title: Director Title: Director
ATTEST: SEEC INC.
/s/ Xxxxxxx X. Xxxxxxxx By: /s/ Xxxxxxxx Xxxx
---------------------------- -----------------------------------
Title: Treasurer and CFO Title: President & CEO
20
The following schedules have not been included in this exhibit, but are
available at no cost upon written request to: Secretary, SEEC, Inc., Park West
One, Xxxxx 000, Xxxxx Xxxx Xxxx, Xxxxxxxxxx, XX 00000.
Schedule 2.1.1 - All Machinery, Equipment, Furniture, Office Equipment and
Supplies, Computer Hardware and Software, Fixtures and Vehicles.
Schedule 2.1.2 - All Land and Other Real Property, Including Any Buildings,
Fixtures and Improvements Thereon.
Schedule 3.1 - Assumed Liabilities.
Schedule 5.5 - Material Contracts.
Schedule 5.6.1 - List of the Business Employees.
Schedule 5.6.3 - None.
Schedule 5.6.4 - None.
Schedule 5.7 - None.
Schedule 5.16 - None.
