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Exhibit 2
AGREEMENT AND
PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER dated as of , 1998
by and among TYECIN SYSTEMS, INC., a California Corporation ("Tyecin"), TYECIN
ACQUISITION, INC., a Delaware Corporation ("Acquisition"), and MANUGISTICS
GROUP, INC., a Delaware Corporation ("Manugistics") and the principal
shareholders of Tyecin, Xxxxxxx X. Xxxxxx and Xxxxxxx X. Xxxxxxx (referred to
collectively as the "Principal Shareholders").
BACKGROUND
A. Tyecin is engaged in the business of providing manufacturing
scheduling products to the semiconductor industry.
B. Acquisition is a wholly-owned subsidiary of Manugistics, and
Acquisition was formed to merge with and into Tyecin so that as a result of the
merger Tyecin would become a wholly-owned subsidiary of Manugistics.
C. The Boards of Directors of each of Tyecin, Acquisition and
Manugistics have all determined that the merger of Acquisition with and into
Tyecin (hereinafter referred to as the "Merger") in accordance with the
provisions of the California General Corporation Law (the "CGCL") and Delaware
General Corporation Law (the "DGCL") and subject to the terms and conditions of
this Agreement and Plan of Merger (this "Agreement") is in the best interests of
each of Tyecin, Acquisition and Manugistics and the holders of record of shares
of Tyecin.
D. The parties intend that the Merger constitute a tax-free
reorganization under Section 368(a)(2)(E) of the Internal Revenue Code (the
"Code").
E. Certain Tyecin shareholders (including the Principal
Shareholders) who together hold more than ninety-seven (97%) per cent of the
issued and outstanding common stock of Tyecin and one hundred percent (100%) of
the issued and outstanding preferred stock of Tyecin, have submitted their
shares of Tyecin capital stock to be exchanged in accordance with the terms of
this Agreement (the "Tyecin Shareholders").
NOW, THEREFORE, in consideration of the mutual covenants,
representations, warranties, agreements and promises contained herein and
intending to be legally bound hereby, each of Tyecin, Acquisition and
Manugistics agree as follows:
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AGREEMENT
1. THE MERGER.
1.1 GENERAL.
(a) Subject to the terms and conditions of this Agreement
and in accordance with the CGCL and the DGCL, Acquisition will be merged with
and into Tyecin on the Effective Date (as defined in Section 1.1(b) hereof), and
the separate corporate existence of Acquisition shall cease and Tyecin shall be
the surviving corporation (the "Surviving Company") continuing its corporate
existence under the laws of the State of California.
(b) The Merger shall become effective at a date and time
agreed to by the parties but in no event at a date and time later than five (5)
days after the Closing Date (as defined in Section 1.10 hereof)(the "Effective
Date"), which date shall be specified in the Certificate of Merger and
California Merger Agreement (described below) as the effective date of the
Merger. Prior to the Effective Date the parties shall cause to be filed a
Certificate of Merger (substantially in the form of EXHIBIT A annexed hereto)
with the Secretary of State of the State of Delaware in accordance with the
provisions of the DGCL (the "Certificate of Merger") and the Agreement of Merger
and Officer's Certificate (in the form of EXHIBIT B annexed hereto) with the
Secretary of State of the State of California in accordance with the provisions
of the CGCL (the "California Merger Agreement").
(c) On the Effective Date, the Merger shall have the legal
effect provided in Section 259 of the DGCL and Section 1107 of the CGCL.
1.2 CONVERSION OF STOCK AND OPTIONS. On the Effective Date, by
virtue of the Merger and without any further action on the part of the parties
hereto, and subject to Section 1.4 below (with respect to fractional shares):
(a) All of the issued and outstanding preferred stock, no
par value per share, of Tyecin as of the Effective Date, if any, (the "Tyecin
Preferred Stock") shall be converted into the aggregate number of shares of
common stock of Manugistics (the "Manugistics Common Stock"), equal to the
product of the Conversion Factor (as defined in Section 1.5 below) multiplied by
the number of shares of Tyecin Common Stock into which the Tyecin Preferred
Stock is convertible as of the Effective Date. Innotech (the "Preferred
Shareholder") will be entitled to receive such shares of Manugistics Common
Stock based on the aggregate Tyecin Preferred Stock which it owns as of the
Effective Date and each share of Tyecin Preferred Stock will be canceled as of
the Effective Date.
(b) All of the issued and outstanding common
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stock, no par value per share of Tyecin as of the Effective Date (the "Tyecin
Common Stock") shall, subject to Section 1.3 below, be converted into the
aggregate number of shares of Manugistics Common Stock equal to the product of
the Conversion Factor multiplied by the number of outstanding shares of Tyecin
Common Stock as of the Effective Date. Accordingly, each Tyecin Shareholder will
be entitled to receive his/her pro rata share of such Manugistics Common Stock,
based on such Tyecin Shareholder's proportionate interest in the Tyecin Common
Stock as of the Effective Date, and each share of Tyecin Common Stock will be
canceled as of the Effective Date.
(c) Each share of common stock, $.01 par value per share
of Acquisition (the "Acquisition Common Stock") then issued and outstanding
shall become one fully paid and nonassessable share of common stock, no par
value per share, of the Surviving Company (the "Surviving Company Common
Stock").
(d) The existing Tyecin option plans are in the form
attached hereto as EXHIBIT C and EXHIBIT D (the "Option Plans") and the options
(vested and unvested) to purchase Tyecin Common Stock outstanding now and as of
the Effective Date (the "Tyecin Options") are listed on SCHEDULE 1.2(D). The
Tyecin Options shall become options to purchase common stock, $.002 par value,
of Manugistics based upon the Conversion Factor. Pursuant to the Option Plans,
the number of options to purchase Manugistics Common Stock (the "Manugistics
Options") issued to each holder of Tyecin Options (the "Tyecin Optionholders")
shall be equal to the number of Tyecin Options held by each Tyecin Optionholder
as of the Effective Date multiplied by the Conversion Factor and to the extent
such number of shares to be received upon the exercise of such options is not a
whole number, Manugistics may in lieu of issuing a fractional share, pay to such
optionholder the then fair market value of such fractional share. The exercise
price of each Manugistics Option received in exchange for each Tyecin Option
shall be equal to the exercise price of such Tyecin Option divided by the
Conversion Factor, rounded up to the nearest whole cent. Each Tyecin
Optionholder's vesting schedule prior to the Closing Date shall remain the same
after the Closing Date under the applicable Option Plan, and each Tyecin
Optionholder shall receive credit with respect to vesting under the applicable
Option Plan for the period of time from the date of option grant to the Closing
Date.
1.3 DISSENTING SHARES.
(a) Each outstanding share of Tyecin Common Stock held by
a Tyecin Shareholder who has demanded and perfected his right to an appraisal
of his shares in accordance with Section 1301 of the CGCL and who has not
effectively withdrawn or lost his right to such appraisal ("Dissenting Shares")
shall not be converted into or represent a right to receive Manugistics Common
Stock based upon the Conversion Factor pursuant to Section 1.2 hereof, but the
holder thereof shall be entitled only to such
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rights as are granted by Chapter 13 of the CGCL. Each holder of Dissenting
Shares who becomes entitled to payment for his Tyecin Common Stock pursuant to
Chapter 13 of the CGCL shall receive payment therefor from the Surviving Company
in accordance with the CGCL.
(b) If any shareholder of Tyecin who demands appraisal of his
shares under Chapter 13 of the CGCL shall effectively withdraw or lose (through
failure to perfect or otherwise) his right to appraisal, each share of Tyecin
Common Stock held by such shareholder of Tyecin shall automatically be converted
into the right to receive that number of shares of Manugistics Common Stock
yielded by multiplying such Tyecin Shareholder's total number of outstanding and
issued shares of Tyecin Common Stock as of the Effective Date by the Conversion
Factor pursuant to Section 1.2 hereof and such shares of Tyecin Common Stock
shall be delivered in accordance with Section 2.1(b) and 2.1(c) below.
(c) Prior to the Closing, Tyecin shall give Manugistics and
Acquisition prompt notice of any written demands for appraisal, withdrawals of
demands for appraisal and any other instruments served pursuant to Chapter 13 of
the CGCL received by Tyecin. From and after the Closing: (i) the Surviving
Company shall give the Paying Agent (as defined in Section 2.2) prompt notice of
any written demands for appraisal, withdrawals of demands for appraisal and any
other instruments served pursuant to Chapter 13 of the CGCL received by the
Surviving Company; (ii) the Paying Agent shall have the right to participate in
all negotiations and proceedings with respect to demands for appraisal under
Chapter 13 of the CGCL.
1.4 FRACTIONAL SHARES. No fractional shares will be issued in
connection with the Merger. Any Tyecin Shareholder who would otherwise be
entitled to receive five-tenths (.5) or more of a share of Manugistics Common
Stock will instead receive an additional whole share and any Tyecin Shareholder
who would otherwise be entitled to less than five-tenths (.5) of a share of a
Manugistics Common Stock will not receive any consideration for such fractional
interest, or at the option of Manugistics, such Tyecin Shareholder shall receive
cash for such fractional share with each share of Manugistics Common stock to be
valued at $60 per share for such purposes.
1.5 CERTAIN DEFINITIONS. As used in this Agreement, the following
terms have the meanings indicated below:
(a) "Conversion Factor" means that number equal to (i) 355,000,
less that number equal to (x) the amount of Tyecin Merger Costs which exceeds
$700,000 divided by (y) 60; divided by (ii) the total number of shares of
outstanding Tyecin Common Stock, the total number of Tyecin Options, and the
total number of shares of Tyecin Common Stock into which the Tyecin Preferred
Stock is convertible, all as of the Effective Date, less
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the 88,000 Tyecin Options listed on SCHEDULE 4.8 hereto.
(b) "Tyecin Merger Costs" means certain reasonable professional
and broker fees and costs incurred by Tyecin in connection with the Merger as
set forth on SCHEDULE 1.5(B) hereto.
1.6 SHAREHOLDERS - NO FURTHER RIGHTS OF Transfer. On and after the
Effective Date, each Tyecin Shareholder holding a certificate or certificates
theretofore evidencing shares of Tyecin Common Stock or Tyecin Preferred Stock
(the "Certificates") shall cease to have any rights as a shareholder of Tyecin,
except for the right to surrender such Certificates in exchange for Manugistics
Common Stock (as provided in Section 1.2 above), and no transfer of shares of
Tyecin Common Stock or Tyecin Preferred Stock shall be made on the stock
transfer books of the Surviving Company.
1.7 OPTIONHOLDERS - NO FURTHER RIGHTS OF Transfer. On and after the
Effective Date, each Tyecin Optionholder holding a Tyecin Option shall cease to
have any rights as an optionholder of Tyecin, except for his, her or its rights
as a holder of Manugistics Options pursuant to the Option Plans, and no transfer
of Tyecin Options shall be made on the transfer books of the Surviving Company.
1.8 ARTICLES OF INCORPORATION. The Articles of Incorporation of
Tyecin, as in effect immediately prior to the Effective Date, shall be the
Articles of Incorporation of the Surviving Company until thereafter amended as
provided therein and by law.
1.9 BY-LAWS. The By-Laws of Tyecin, as in effect immediately prior to
the Effective Date, shall be the By-Laws of the Surviving Company until
thereafter amended as provided therein and by law.
1.10 CLOSING. The closing of the Merger (the "Closing") shall take
place at the offices of Manugistics' counsel, Xxxxxxxx Xxxxxx LLP, 3200 Mellon
Bank Center, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx, XX 00000 on _____________, 1998
(the "Closing Date"). At the time of Closing, the Closing certificates, opinions
of counsel and other documents to be delivered pursuant to this Agreement will
be exchanged.
2. PURCHASE PRICE.
2.1 PAYMENT OF PURCHASE PRICE. The purchase price (the "Purchase
Price") shall be payable to each Tyecin Shareholder as follows:
(a) Ninety percent (90%) of the Manugistics
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Common Stock as determined in accordance with Section 1.2(a) above, (the
"Preferred Closing Stock") shall be tendered to the Paying Agent (as defined in
Section 2.2 hereof) at the Closing.
(b) Ninety percent (90%) of the Manugistics Common Stock
as determined in accordance with Section 1.2(b) above (the "Common Closing
Stock") shall be tendered to the Paying Agent (as defined in Section 2.2 hereof)
at the Closing.
(c) That amount of Manugistics Common Stock as determined
in accordance with Section 1.2(a) and Section 1.2(b) above, less the aggregate
amount tendered pursuant to Section 2.1(a) and Section 2.1(b) above
(hereinafter, the "Escrow Stock") shall be tendered to the Escrow Agent as named
in the Escrow Agreement in the form of EXHIBIT E annexed hereto (the "Escrow
Agreement").
2.2 DEPOSIT WITH PAYING AGENT; DEPOSIT WITH ESCROW AGENT.
Xxxxxxx X. Xxxxxx is hereby appointed as the paying agent (the "Paying Agent")
as named in the Paying Agent Agreement in the form of EXHIBIT F annexed hereto
(the "Paying Agent Agreement") for the purpose of disbursing the Preferred
Closing Stock and the Common Closing Stock at Closing to the Tyecin
Shareholders.
(a) Following receipt of a certificate from the Secretary
of State of the state of California and an opinion of counsel from counsel to
Tyecin (in form and substance satisfactory to Manugistics) that the Merger is
effective, and upon satisfaction of all conditions to Closing as set forth in
Section 9 hereof, Acquisition shall tender the Preferred Closing Stock and the
Common Closing Stock to the Paying Agent, as agent for the Tyecin Shareholders,
as provided in and subject to Section 2.4 hereof. Immediately thereafter, none
of Manugistics, Acquisition or the Surviving Company shall have any further
liability to any of the Tyecin Shareholders with respect to the Preferred
Closing Stock and the Common Closing Stock. The Paying Agent shall disburse at
Closing to the persons listed on SCHEDULE 2.2 annexed hereto, that amount of
Manugistics Common Stock set forth on SCHEDULE 2.2 next to each such person's
name;
(b) Following receipt of a certificate from the Secretary
of State of the state of California and an opinion of counsel from counsel to
Tyecin (in form and substance satisfactory to Manugistics) that the Merger is
effective, and upon satisfaction of all conditions to Closing as set forth in
Section 9 hereof, Acquisition shall tender the Escrow Stock to be held with the
Escrow Agent, as provided in the Escrow Agreement. Immediately upon such
deposit, none of Manugistics, Acquisition or the Surviving Company shall have
any further liability to the Tyecin Shareholders or to any other holders of
Tyecin Common Stock with respect to the Escrow Stock.
2.3 CUSTODY OF STOCK. The Manugistics Common Stock issued at
Closing to be held in escrow shall be held by the Escrow
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Agent pursuant to the terms of the Escrow Agreement.
2.4 SURRENDER OF CERTIFICATES AND DISBURSEMENT. Upon the
surrender of the Certificates to the Paying Agent by each Tyecin Shareholder
together with a Letter of Transmittal substantially in the form of EXHIBIT G
(the "Letter of Transmittal") and any necessary stock powers, duly executed and,
if required, with signatures notarized or guaranteed, and the Paying Agent's
surrender of such Certificates and documents to Acquisition (including forms W-9
and W-8, as required by Manugistics or Acquisition), and subject to the
provisions of the Paying Agent Agreement and the provisions for fractional
shares as set forth in Section 1.4 hereof, each holder of such Certificates
shall be entitled to receive in exchange therefor a certificate representing
that shareholder's portion of the Common Closing Stock or the Preferred Closing
Stock, as the case may be, issuable pursuant to Section 2.1 above. Upon such
surrender, the Paying Agent will promptly tender the allocable Common Closing
Stock or Preferred Closing Stock, as the case may be, to each such holder.
2.5 TRANSFERRED CERTIFICATES. If the Common Closing Stock or the
Preferred Closing Stock is to be delivered to a person other than the person in
whose name the Certificates surrendered in exchange therefor are registered, it
shall be a condition to the delivery of the Common Closing Stock or the
Preferred Closing Stock, as the case may be, that the Certificates so
surrendered shall be properly endorsed or accompanied by appropriate stock
transfer powers and any other documents required by Manugistics and otherwise in
proper form for transfer, that such transfer otherwise be proper and that the
person requesting such transfer pay to the Paying Agent any transfer or other
taxes payable by reason of the foregoing or establish to the satisfaction of the
Paying Agent that such taxes have been paid or are not required to be paid.
2.6 LOST, STOLEN OR DESTROYED CERTIFICATES. In the event any
Certificate shall have been lost, stolen or destroyed, upon the delivery to the
Paying Agent of a notarized affidavit of that fact by the person claiming such
Certificate to be lost, stolen or destroyed, the Paying Agent will issue the
allocable Common Closing Stock or Preferred Closing Stock, as the case may be,
to such person; provided, however, that as a condition to such issuance the
Paying Agent may, in its discretion, require the owner of such lost or destroyed
Certificate to give the Paying Agent a bond in such sum as the Paying Agent may
reasonably direct as indemnity against any claim that may be made with respect
to the Certificate alleged to have been lost, stolen or destroyed.
3. APPROVAL; AMENDMENT; TERMINATION.
3.1 APPROVAL. This Agreement is subject to approval by all
necessary action on the part of the Tyecin board of directors and the
shareholders of Tyecin and by the board of
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directors of Manugistics and Acquisition. Tyecin, Acquisition, and Manugistics
each agree to execute and deliver such further documents and instruments and to
do such other acts and things as may be required to complete all requisite
corporate action in connection with the transactions contemplated by this
Agreement.
3.2 AMENDMENT. This Agreement may be amended by the parties
hereto notwithstanding the approval hereof by the shareholders of Tyecin and of
Acquisition, except as provided in Section 1104 of the CGCL and Section 251(d)
of the DGCL, as applicable pursuant to Section 252(e) of the DGCL.
3.3 TERMINATION. This Agreement may be terminated,
notwithstanding the approval by the board of directors of Tyecin, the Tyecin
Shareholders and/or the board of directors of Manugistics and Acquisition, as
provided in Section 17 hereof.
4. REPRESENTATIONS AND WARRANTIES OF TYECIN AND THE PRINCIPAL
SHAREHOLDERS. Tyecin and the Principal Shareholders, jointly and severally,
represent and warrant to Acquisition and Manugistics as follows:
4.1 ORGANIZATION; QUALIFICATION. Tyecin is a corporation duly
organized, validly existing and in good standing under the laws of California
and has all requisite corporate power and authority and all necessary licenses
and permits to carry on its business as it has been and is now being conducted
and to own or lease and to operate the properties used in connection therewith.
Tyecin is duly qualified or licensed and in good standing to do business in the
jurisdictions set forth on SCHEDULE 4.1 hereto, which constitutes each
jurisdiction where the conduct of its business or the ownership, leasing or
operation of its properties requires such qualification or licensing. Copies of
the articles of incorporation and bylaws of Tyecin heretofore delivered to
Manugistics are accurate and complete as of the date hereof and as of the
Effective Date.
4.2 CAPITALIZATION; OPTIONS AND OTHER RIGHTS.
(a) The total authorized capital securities of Tyecin
consists of (i) Fifty Million shares of voting common stock, no par value, of
which, as of the date hereof and as of the Effective Date, Eight Million Four
Hundred Forty-Eight Thousand Seven Hundred Eighty-Five (8,448,785) shares are
issued and outstanding, are and will be held by those shareholders listed on
SCHEDULE 2.2 hereto in such amounts as are set forth on such schedule and such
shareholders reside at the address indicated on such schedule, (ii) Five Million
shares of voting preferred stock, no par value, of which as of the date hereof,
One Hundred Fifty Thousand (150,000) are issued and outstanding and are all held
by the Preferred Shareholder, and (iii) Six Hundred Fifty-One Thousand and
Twelve (651,012) options to purchase Tyecin Common Stock are (A) issued and
outstanding, (B) held by those optionholders listed on SCHEDULE 1.2(D) hereof in
such amounts and with the vesting and
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exercise dates set forth on such schedule and (C) except as set forth on such
schedule are qualified options (as defined under the Code) and Four Hundred
Thirty-Seven Thousand Four Hundred Ninety-five (437,495) options are reserved
for issuance.
Except as set forth on SCHEDULE 2.2 or SCHEDULE 1.2(D) hereof, all of
the Tyecin Common Stock and Tyecin Preferred Stock have been duly and validly
authorized and issued and are fully paid and nonassessable and all of the Tyecin
Options have been duly and validly authorized and issued, including
authorization of each of the Option Plans by the board of directors of Tyecin
and the shareholders of Tyecin within twelve (12) months after adoption thereof
by Tyecin; none have been issued in violation of the preemptive rights of any
Tyecin Shareholder or Tyecin Optionholder; all were issued in compliance with
all applicable Federal and state securities laws and regulations, and are owned
free and clear of any liens, security interests, charges, claims, pledges and
other encumbrances (the "Liens").
(b) Except as set forth in SCHEDULE 2.2 or SCHEDULE 1.2(D),
there are no existing agreements, subscriptions, options, warrants, calls,
commitments, trusts (voting or otherwise), or rights of any kind whatsoever
granting to any person or entity any interest in or the right to purchase or
otherwise acquire from Tyecin at any time, or upon the happening of any stated
event, any securities of Tyecin, whether or not presently issued or outstanding,
nor are there any outstanding securities of Tyecin or any other entity which are
convertible into or exchangeable for shares or other securities of Tyecin, nor
are there any agreements, subscriptions, options, warrants, calls, commitments
or rights of any kind whatsoever granting to any person or entity any interest
in or the right to purchase or otherwise acquire from Tyecin or any other entity
any securities so convertible or exchangeable, nor are there any proxies,
agreements or understandings with respect to the voting of the shares of Tyecin
securities.
4.3 AUTHORIZATION; FREEDOM TO CONTRACT.
(a) The execution and delivery by Tyecin of this Agreement, the
consummation of the transactions contemplated hereby and the performance by it
of its obligations hereunder, have been duly authorized by all necessary
corporate actions. This Agreement has been approved by a majority of the Tyecin
Shareholders.
(b) The execution and delivery of this Agreement by Tyecin does
not, and the performance by Tyecin of its obligations hereunder will not, (i)
violate or conflict with any provision of the Articles of Incorporation or
By-Laws of Tyecin, or any amendments thereto or restatements thereof, as in
effect on the date hereof, (ii) violate any of the terms, conditions or
provisions of any applicable law, rule, regulation, order, writ, injunction,
judgment or decree of any court, governmental
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authority, or regulatory agency, or (iii) result in a violation or breach of, or
constitute (with or without due notice or lapse of time or both) a default (or
give rise to any right of termination, cancellation or acceleration) under, any
of the terms, conditions or provisions of any note, bond, indenture, debenture,
security agreement, trust agreement, lien, mortgage, lease, agreement, license,
franchise, permit, guaranty, joint venture agreement, or other agreement,
instrument or obligation, oral or written, to which Tyecin is a party (whether
as an original party or as an assignee or successor) or by which any of its
properties is bound. No governmental authorization, approval, order, license,
franchise, consent or permit (collectively, "Permits"), and no registration,
declaration or filing with any court, governmental department, commission,
authority, board, bureau, agency or other instrumentality (collectively,
"Filings"), is required in connection with the execution, delivery and
performance of this Agreement by Tyecin and the consummation of the transactions
contemplated hereby, except (i) the filing of the Certificate of Merger and
California Merger Agreement and (ii) such consents, approvals, orders,
authorizations, registrations and filings as may be required under applicable
California securities laws, as provided on SCHEDULE 4.3.
(c) Tyecin has complied in all respects with the CGCL,
including but not limited to, approval of the Merger, notice to all of the
holders of Tyecin Common Stock and Tyecin Preferred Stock of the approval of the
Merger, and requirements relating to the rights of holders of dissenting shares,
including without limitation, delivery of a statement of the fair market value
of any Dissenting Shares to all of the holders of Tyecin Common Stock and Tyecin
Preferred Stock, which fair market value statement is consistent with the terms
of this Agreement.
4.4 SUBSIDIARIES AND AFFILIATES.
(a) Annexed hereto as SCHEDULE 4.4 is a correct and
complete list setting forth (i) the name and jurisdiction of incorporation of
each corporation (individually, a "Subsidiary," and collectively, the
"Subsidiaries") of which Tyecin owns, directly or indirectly, capital stock,
(ii) the total number of shares of each class of capital stock of each
Subsidiary authorized, the number of such shares outstanding and the number of
such shares owned by Tyecin or any of the Subsidiaries (indicating the name of
the owner), and (iii) a complete list of the directors and officers of Tyecin
and each Subsidiary. All of the issued and outstanding shares of each Subsidiary
have been duly and validly authorized and issued and are fully paid,
nonassessable and free of preemptive rights. No shares of any Subsidiary have
been issued in violation of the preemptive rights of any shareholder of such
Subsidiary. The shares of each Subsidiary were issued in compliance with all
applicable Federal, state and foreign securities laws and regulations, and are
owned as set forth in SCHEDULE 4.4, free and clear of any and all Liens.
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(b) There are no existing agreements, subscriptions,
options, warrants, calls, commitments, trusts (voting or otherwise), or rights
of any kind whatsoever granting to any person or entity any interest in the
right to purchase or otherwise acquire from Tyecin or any Subsidiary, at any
time, or upon the happening of any stated event, any shares of any Subsidiary,
whether or not presently issued or outstanding, nor are there any outstanding
securities of any Subsidiary or any other entity which are convertible into or
exchangeable for shares or other securities of any Subsidiary, nor are there any
agreements, subscriptions, options, warrants, calls, commitments, trusts (voting
or otherwise), or rights of any kind whatsoever granting to any person or entity
any interest in the right to purchase or otherwise acquire any Subsidiary or any
other entity any securities so convertible or exchangeable, nor are there any
proxies, agreements or understandings with respect to voting of the capital
stock of any Subsidiary. Except for Tyecin's ownership of the Subsidiaries as
disclosed on SCHEDULE 4.4 and as may be otherwise described in such schedule,
Tyecin does not, directly or indirectly, have any ownership or other interest
in, or control of, any person, corporation, partnership, joint venture, business
association or other entity, nor is Tyecin controlled by or under common control
with, any person, corporation, partnership, joint venture, business association
or other entity, other than the shareholders of Tyecin set forth on SCHEDULE 4.4
annexed hereto.
4.5 CHARTER AND ORGANIZATIONAL DOCUMENTS. Attached hereto as
SCHEDULE 4.5 is a certified copy of the Articles of Incorporation and By-Laws of
Tyecin and each of its Subsidiaries. Tyecin and the Subsidiaries have previously
furnished to Acquisition and Manugistics, true and complete copies of minutes of
all meetings of the board of directors and the shareholders of Tyecin and the
Subsidiaries.
4.6 FINANCIAL STATEMENTS.
(a) Except as set forth in SCHEDULE 4.6, Tyecin has
previously furnished to Manugistics true and complete copies of the following
financial statements with respect to Tyecin and the Subsidiaries (the "Financial
Statements"):
(i) audited consolidated balance sheets, statements
of operations, stockholders' equity, and cash flows for each of the calendar
years ended 1996 and 1995 with detailed schedules for each line item on the
balance sheets; and
(ii) an unaudited consolidated balance sheet,
statement of operations, and statement of cash flows for the calendar year ended
1997 and for the period beginning January 1, 1998 and ended at March 31, 1998.
(b) The Financial Statements were prepared in accordance
with generally accepted accounting principles ("GAAP")
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applied on a basis consistent with that of preceding accounting periods. The
Financial Statements were prepared on the basis of the books and records of
Tyecin and its Subsidiaries, and fully and fairly present the financial position
of Tyecin and the Subsidiaries as of the dates thereof and the results of
operations and changes in financial position of Tyecin and the Subsidiaries for
each of the periods then ended.
(c) On the Closing Date and Effective Date, there will be
no restrictions on the availability of cash of Tyecin and the Subsidiaries in
banks and on hand, except clearance of checks in the ordinary course of
business.
(d) The accounts and other receivables as set forth on the
Financial Statements, and arising since the date thereof, have or shall have
arisen in the ordinary course of the business of Tyecin and the Subsidiaries.
(e) The Financial Statements and the notes thereto
correctly and completely set forth all liabilities of Tyecin and the
Subsidiaries required to be reflected under GAAP as of the date thereof (i)
pursuant to all Plans (as that term is defined in Section 4.22), including all
unfunded past service costs, (ii) pursuant to all bonus, incentive,
compensation, insurance, deferred compensation, severance and other fringe
benefit plans, contracts, agreements, arrangements and programs of any type,
coverage or form, including, without limitation, any employee welfare benefit
program as defined in Section 3(1) of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), and (iii) for vacation pay.
4.7 ABSENCE OF UNDISCLOSED LIABILITIES. Except as disclosed on
SCHEDULE 4.7, Tyecin and the Subsidiaries do not have any liabilities (whether
absolute, accrued or contingent), which would be required (under GAAP
consistently applied) to be set forth on a balance sheet or in the notes
thereto, except for liabilities incurred after March 31, 1998 in the ordinary
course of business and consistent with past practice.
4.8 ABSENCE OF CERTAIN CHANGES OF EVENTS. Except as set forth on
SCHEDULE 4.8, since December 31, 1997 there has not been (a) any issuance of any
shares of capital stock, declaration, setting aside or payment of any dividend,
any grant of options, any execution of any agreements with respect to any shares
of capital stock or any other of Tyecin's and the Subsidiaries' securities or
any distribution with respect to shares of Tyecin's capital stock; (b) any
material changes made to any Plan, including any modification, amendment,
revision, restatement or revision or any action to deplete any asset of any
Plan; (c) any material adverse change in Tyecin's or the Subsidiaries' business
or the results of their respective operations; (d) any damage, destruction or
casualty loss, whether covered by insurance or not, adversely affecting Tyecin's
or the Subsidiaries' assets or their respective business; (e) (i) any material
increase in the rate or terms of
13
compensation payable to or to become payable to Tyecin's or the Subsidiaries'
employees, officers, directors or consultants, or (ii) any material
modifications in employee benefits to Tyecin's or the Subsidiaries' employees;
(f) any creation of or assumption of any mortgage, pledge, or other lien or
encumbrance upon any of the assets of Tyecin or the Subsidiaries; (g) any
incurrence of any additional debt for money borrowed by Tyecin or the
Subsidiaries; (h) any sale, assignment, lease, transfer or other disposition of
any of the assets of Tyecin or the Subsidiaries; (i) any imposition or incurring
of any obligation or liability, fixed or contingent not in the ordinary course
of business of Tyecin or the Subsidiaries; (j) any termination or alteration of
Tyecin's or the Subsidiaries' relationship with any customer that, during any
period in the last two (2) years, accounted for more than 2% of Tyecin's or the
Subsidiaries' respective sales; (k) any material transaction otherwise relating
to Tyecin or the Subsidiaries; (l) any change in the general character of
Tyecin's or the Subsidiaries' business and properties; or (m) any change in any
method of accounting or accounting practice or policy of Tyecin or the
Subsidiaries.
4.9 TITLE TO PROPERTIES. Tyecin and the Subsidiaries have good
and marketable title to all of their respective properties and assets reflected
on the Financial Statements or acquired after the date thereof (except for
properties and assets sold or otherwise disposed of in the ordinary course of
business since the date of the Financial Statements) in fee simple absolute with
respect to real property (except for leasehold interests, in which event the
entity directly holding such interest has a valid leasehold interest), subject
only to (i) statutory liens arising or incurred in the ordinary course of
business with respect to which the underlying obligations are not delinquent,
(ii) with respect to personal property, the rights of suppliers or customers of
Tyecin with respect to contracts entered into by Tyecin in the ordinary course
of business, (iii) liens reflected on the Financial Statements or notes thereto,
(iv) liens set forth in SCHEDULE 4.9 hereto, and (v) those dispositions of
properties and assets not in the ordinary course of business since December 31,
1997, which are set forth on SCHEDULE 4.9 hereto.
4.10 REAL PROPERTY. SCHEDULE 4.10 lists all land, buildings and
structures owned beneficially or of record by Tyecin and the Subsidiaries. Also
included on SCHEDULE 4.10 are lists of all deeds, mortgages, surveys and title
insurance policies relating to such real property in the possession of Tyecin
and the Subsidiaries. Tyecin has heretofore delivered to Manugistics copies of
all written documents, instruments, deeds, mortgages, surveys, rights of-way,
easements, permits and other documents or agreements relating to such real
property listed on SCHEDULE 4.10.
4.11 MACHINERY AND EQUIPMENT. SCHEDULE 4.11 lists each item of
machinery and equipment owned by Tyecin and the Subsidiaries as of the Closing
Date.
14
4.12 INVENTORY. SCHEDULE 4.12 contains a description of all
classes of inventory owned by Tyecin and the Subsidiaries as of the Closing
Date.
4.13 LEASES. SCHEDULE 4.13 lists all outstanding leases or
licenses pursuant to which Tyecin and the Subsidiaries have (i) obtained the
right to use or occupy any real or personal property, or (ii) granted to any
other party the right to use any real or personal property described on SCHEDULE
4.10, SCHEDULE 4.11 or SCHEDULE 4.13 hereto. Tyecin has heretofore delivered or
made available to Manugistics or Acquisition copies of all the written leases
and licenses described on SCHEDULE 4.13, together with all amendments thereto.
4.14 PATENTS, COPYRIGHTS AND TRADEMARKS. All patents, trademarks,
trade names and service marks which Tyecin and the Subsidiaries own or utilize
and all registrations granted and/or applications pending therefor, if any, are
listed on SCHEDULE 4.14. As of the date of this Agreement, there are no pending
interference, opposition or cancellation actions or proceedings, or written
claims received and unresolved, with respect to any such trademarks, trade
names, service marks, patents or any copyrights; and to the knowledge of Tyecin
and the Subsidiaries, there are no pending actions or proceedings, or written
claims received and unresolved, claiming that the use of any such trademarks,
trade names, service marks, patents and/or copyrights infringes upon or
conflicts with, any trademark, trade name, patent, copyright, or other
proprietary right of any other person. Tyecin and the Subsidiaries have
heretofore delivered to Manugistics true, correct and complete copies of all
documents described on SCHEDULE 4.14. To the knowledge of Tyecin and the
Subsidiaries, there are no claims or prior technologies, patents or other prior
art which would interfere with or prevent the Surviving Company from obtaining a
patent for the manufacturing scheduling process which is a component to the
Software Materials (as defined in Section 4.32 below). To their knowledge,
neither Tyecin nor the Subsidiaries are infringing on any trademark, trade name,
service xxxx, patent or copyright.
4.15 CONTRACTS. Except as otherwise indicated thereon, SCHEDULE
4.15 lists each and every document not otherwise listed on any other Schedule,
for the following:
(i) written contract or commitment to which Tyecin or
any Subsidiary is a party which creates an obligation on the part of Tyecin or
any Subsidiary in excess of $5,000 in the aggregate;
(ii) written debt instrument, including, without
limitation, any loan agreements, promissory notes, security agreements or other
evidences of indebtedness, where Tyecin or any Subsidiary is a lender or
borrower;
(iii) written contract or commitment
15
restricting Tyecin or any Subsidiary from engaging in any line of business or in
any geographic area;
(iv) written contract or agreement to which Tyecin or
any Subsidiary is a party (whether as an original party or an assignee or
successor) for a line of credit or guarantee, pledge or undertaking of the
indebtedness of any other person or entity;
(v) material written contract or commitment to which
Tyecin or any Subsidiary is a party (whether as an original party or an assignee
or successor) for any charitable contribution;
(vi) written loan agreement, security agreement, note,
debenture, or other contract or commitment (except for this Agreement) limiting
or restraining Tyecin or any Subsidiary from declaring, setting aside,
authorizing or making payment of any dividend or any distribution, whether in
cash or property;
(vii) written joint venture or partnership agreement
to which Tyecin or any Subsidiary is a party (whether as an original party or as
an assignee or successor);
(viii) written agreement or agreements to which Tyecin
or any Subsidiary is a party (whether as an original party or as an assignee or
successor) with respect to any assignment, discounting or reduction of any
receivables, other than normal trade discounts, of Tyecin or any Subsidiary;
(ix) written distributorship, sales agency, sales
representative, brokerage marketing agreement, including without limitation,
agreements with insurance companies;
(x) existing agreements, options, commitments or
rights with, to or in any third party to acquire any assets or properties, real,
personal or mixed, or any interest therein, of Tyecin or any Subsidiary; and
(xi) a list of all clients of Tyecin and all
Subsidiaries.
Tyecin and the Subsidiaries have heretofore delivered to Manugistics or
Acquisition true, correct and complete copies of all documents described in
SCHEDULE 4.15. There are no oral contracts or commitments of the types described
in this Section 4.15 which create an obligation on the part of Tyecin or any
Subsidiaries. There are no contracts or commitments between Tyecin or any
Subsidiaries, on the one hand, and any person which controls, is controlled by
or is under common control with Tyecin, on the other, except as listed on
SCHEDULE 4.15 or agreements referred to in this Agreement.
16
4.16 ABSENCE OF DEFAULT. Except as set forth in SCHEDULE 4.16
annexed hereto: (a) neither Tyecin nor any Subsidiaries has received notice that
it has not complied with and performed all of its obligations required to be
performed under all contracts, agreements and leases to which it is a party
(whether as an original party or as an assignee or successor) as of the date
hereof, or that it is in default in any respect under any contract, agreement,
lease, undertaking, commitment or other obligation; and (b) Tyecin and the
Subsidiaries have no knowledge that any party has failed to comply in any
respect with or perform all of its obligations required to be performed under
any contract, agreement or lease to which Tyecin or any Subsidiary is a party
(whether as an original party or as an assignee or successor) as of the date
hereof.
4.17 INSURANCE. SCHEDULE 4.17 contains a description of all
policies or binders of insurance insuring Tyecin and any Subsidiary (including
without limitation any errors and omissions insurance) or any directors and
officers thereof or any of its properties or assets (specifying the insurer, the
amount of the coverage, the type of insurance, the risks insured, the expiration
date, the policy number, the premium and any agent or broker). SCHEDULE 4.17
also contains a description of all outstanding performance bonds which have been
delivered to any person in connection with the business and operations of Tyecin
and the Subsidiaries.
4.18 CAPITAL EXPENDITURES. SCHEDULE 4.18 sets forth the current
capital budget for Tyecin and the Subsidiaries and the status of expenditures
under such budget.
4.19 LITIGATION.
(a) Except as set forth in SCHEDULE 4.19 annexed hereto,
as of the date hereof: (i) there are no actions, suits, arbitrations, legal or
administrative proceedings or investigations threatened or pending or claims
asserted against Tyecin or any Subsidiary of which Tyecin or any Subsidiary has
knowledge and Tyecin and the Subsidiaries have no knowledge of any basis for
such actions, suits arbitrations, legal or administrative proceedings; and (ii)
neither Tyecin nor any of the Subsidiaries nor the assets, properties or
business of any of them is subject to any judgment, order, writ, injunction or
decree of any court, governmental agency or arbitration tribunal.
(b) Tyecin and the Subsidiaries are not a party to any
suit, action, arbitration or legal, administrative, governmental or other
proceeding or investigation pending or, to the knowledge of Tyecin or any
Subsidiary, threatened which might have an adverse effect or restrict the
ability of Tyecin or any Subsidiary to consummate the transactions contemplated
by this Agreement or to perform its obligations thereunder.
(c) There is no judgment, order, injunction or
17
decree of any court, governmental authority or regulatory agency to which Tyecin
or any Subsidiary is subject which could reasonably be expected to have an
adverse effect or restrict the ability of Tyecin or any Subsidiary to consummate
the transactions contemplated by this Agreement or to perform its obligations
thereunder.
4.20 COMPLIANCE WITH LAW. Except as set forth in SCHEDULE 4.20
annexed hereto, neither Tyecin nor any Subsidiaries have received written notice
or is aware of the fact that:
(a) Tyecin or any Subsidiaries has not complied with, or
is in violation of, any law, ordinance or governmental rule or regulation to
which it or its business is subject; or
(b) Tyecin, any Subsidiary, or any employee thereof, has
failed to obtain any material license, permit, certificate or other governmental
authorization or inspection necessary to the ownership or use of its assets and
properties or to the conduct of its business.
4.21 TAX MATTERS.
(a) Tyecin and each of the Subsidiaries has filed or will
file all required Federal, foreign, state, county, local, and other tax returns
and reports including without limitation, income tax, estimated tax, excise tax,
sales tax, gross receipts tax, franchise tax, employment and payroll-related
tax, property tax and returns and reports, whether or not measured in whole or
in part by net income, within the prescribed period or any extension thereof for
all periods to the Effective Date, except where the prescribed period (and any
extension thereof) will not have expired by the Effective Date, and all such
returns are true, correct and complete. Tyecin and the Subsidiaries have paid,
and with respect to the 1997 tax year and preceding years will pay or will
reserve for, all taxes shown to be due on such returns and reports or due or to
become due pursuant to any written assessment, deficiency notice, 30-day letter
or similar written notice actually received by Tyecin for any period prior to
the Effective Date, including interest and penalties with respect thereto,
except as set forth on SCHEDULE 4.21. There are no tax liens upon any property
of Tyecin or any of the Subsidiaries except for liens for current taxes not yet
due. All amounts required to be withheld by Tyecin and the Subsidiaries from
employees for income taxes, social security and other payroll taxes have been
collected and withheld, and either paid to the respective governmental agencies,
set aside in accounts for such purpose, or accrued, reserved against and entered
upon the books and records of the employer. For the purpose of this Agreement,
unless otherwise expressly provided, the term "tax" shall include all Federal,
foreign, state and local taxes or assessments, including any interest or
penalties applicable thereto.
18
(b) The Federal income tax returns of Tyecin and the
Subsidiaries have either been audited by the Internal Revenue Service (the
"IRS") or the period during which any assessments may be made has expired
without waiver or extension, for all periods to and including the year ended
1994. Except as set forth on SCHEDULE 4.21 hereto, all Federal income tax
deficiencies asserted in writing as a result of such examinations have been paid
or finally settled. Further, no written notice has been received by Tyecin
proposing the assessment of any Federal income tax liability against Tyecin.
Except as set forth in SCHEDULE 4.21, none of the foreign, state or local income
or franchise tax returns of Tyecin or the Subsidiaries has been audited by any
governmental agency within the past five (5) years.
(c) Except as set forth on SCHEDULE 4.21, neither Tyecin
nor any of the Subsidiaries is a party to any pending action by any governmental
authority for assessment or collection of taxes, or party to any dispute or, to
the knowledge of Tyecin, any threatened dispute, and no such claim for
assessment or collection of taxes has been made upon Tyecin or any of the
Subsidiaries nor to the knowledge of Tyecin is there any basis for such action
or claim.
(d) Neither Tyecin nor any of the Subsidiaries has, with
regard to any assets or property held, acquired or to be acquired, filed a
consent to the application of Section 341(f)(2) of the Code.
(e) Except as set forth on SCHEDULE 4.21 hereto, Tyecin
and each of its Subsidiaries (i) have made all payments of estimated taxes
required to be made; (ii) have not taken any action that could have the effect
of deferring any liability for taxes from any taxable period ending on or before
the Closing Date to any taxable period ending thereafter; (iii) have not made
any payment which will be or may be characterized as an "excess parachute
payment" within the meaning of Section 280G(b)(1) of the Code; and (iv) have no
net operating loss carryovers available as reflected on its returns arising in
years after 1994, which are restricted as of the Effective Date by Sections 382,
383 or 384 of the Code, except to the extent affected by this Agreement and the
transactions evidenced hereby.
(f) During the past ten (10) years, except as set forth on
SCHEDULE 4.21, neither Tyecin nor any of the Subsidiaries has agreed and has not
been requested in writing by IRS to make any adjustment under Section 481(a) of
the Code by reason of a change in accounting method.
(g) None of the Subsidiaries which are incorporated under
the laws of a foreign country have been subject to tax as: a "foreign personal
holding company" within the meaning of Section 552 of the Code; a "foreign
investment company" within the meaning of Section 1246 of the Code; or a
"passive foreign investment company" within the meaning of Section 1296 of the
Code.
19
(h) Set forth on SCHEDULE 4.21 is a correct and complete
list of:
(i) all Federal, foreign, state and local income and
franchise, tax returns and reports filed individually or on a consolidated basis
by Tyecin and the Subsidiaries within the past five years;
(ii) all currently effective agreements, consents,
elections and waivers filed or made with Federal, state, local or foreign taxing
authorities relating to Tyecin and the Subsidiaries; and
(i) all methods of accounting utilized by Tyecin and the
Subsidiaries together with the book/tax adjustments made by them in preparing
their tax returns comply with the Code and associated regulations, and Tyecin
and the Subsidiaries have made all proper elections which support the methods of
accounting utilized.
Tyecin has made available to Acquisition and Manugistics all Federal,
foreign, state and local tax returns referred to on SCHEDULE 4.21.
4.22 EMPLOYEE BENEFIT PLANS
(a) SCHEDULE 4.22 lists all employee benefit (including
multiemployer) plans, funds or programs (within the meaning of the Code or
ERISA), whether or not they are or are intended to be (i) covered or qualified
under the Code, ERISA or any other applicable law, (ii) funded or unfunded, or
(iii) generally available to all employees of Tyecin, which are maintained
and/or contributed to by Tyecin ("Plan"). For purposes of this Section 4.22,
references to Tyecin shall include any corporation which is a member of a
controlled group of corporations (as defined in section 414(b) of the Code)
which includes Tyecin; any trade or business (whether or not incorporated) which
is under common control (as defined in section 414(c) of the Code) with Tyecin;
any organization (whether or not incorporated) which is a member of an
affiliated service group (as defined in section 414(m) of the Code) which
includes Tyecin; and any other entity required to be aggregated with Tyecin
pursuant to regulations under section 414(o) of the Code.
(b) Tyecin has delivered to Manugistics (i) copies of all
Plan documents and other instruments relating to all Plans sponsored solely by
Tyecin or any Subsidiary ("Company Plans"), if any, (ii) copies of the most
recent financial statements with respect to such Plans, if any (iii) true and
complete copies of all annual reports for such Plans prepared within the past
three (3) years, if any, and (iv) all filings with respect to such Plans
submitted to and any correspondence received by Tyecin or any Subsidiary from
any government agency within the past two (2) years with respect to such
filings, if any.
20
(c) Each Plan which is intended to be qualified under
section 401(a) and exempt from tax under section 501(a) of the Code has been
determined by the IRS to be so qualified and such determination remains in
effect and has not been revoked. Neither Tyecin nor any Subsidiary has taken or
omitted to take any action since the date of any such determination which might
adversely affect such qualification or exemption, or result in the imposition of
excise taxes or tax on unrelated business income under the Code or ERISA.
(d) Except in the case of multiemployer plans, (i) no
reportable event (as defined in section 4043 of ERISA or the regulations
thereunder) for which the reporting requirements have not been fully waived, or
accumulated funding deficiency whether or not waived (as defined in section 302
of ERISA), or liability to the Pension Benefit Guaranty Corporation ("PBGC")
under section 4062 of ERISA, nor any prohibited transaction (as defined in
section 406 of ERISA or section 4975 of the Code), has occurred and/or exists
with respect to any Plan; and (ii) each of the Plans and provisions thereof, the
trusts created thereby, and the operation of the Plans is currently in
compliance with and conform to applicable provisions of the Code (including but
not limited to section 412), ERISA, other statutes, and governmental rules and
regulations.
(e) There is no action, audit, suit or claim pending or,
threatened in writing relating to any Plan, fiduciary of any such Plan or assets
of any such Plan, before any court, tribunal or government agency and there are
no other claims (other than routine claims for benefits under the Plans).
(f) Tyecin has delivered to Acquisition the most recent
Plan audit reports, actuarial reports and annual reports for the Plans, if any.
(g) Neither Tyecin nor any Subsidiary has, with respect to
any multiemployer plan, suffered or caused a complete withdrawal or partial
withdrawal (as such terms are respectively defined in sections 4203 and 4205 of
ERISA).
(h) With respect to any Plan that is an employee welfare
benefit plan within the meaning of Section 3(1) of ERISA (a "Welfare Plan"),
neither Tyecin nor any Subsidiary has any knowledge or received written notice
that (i) any such Welfare Plan the contributions to which are claimed as a
deduction under any provision of the Code is not currently in compliance with
all applicable requirements pertaining to such deduction, (ii) with respect to
any welfare benefit fund within the meaning of section 419 of the Code that
comprises part of a Welfare Plan, there is no disqualified benefit within the
meaning of section 4976(b) of the Code that would subject Tyecin to a tax under
section 4976(a) of the Code, or (iii) with respect to any group health plan,
there is
21
no failure to meet the requirements of Section 4980(B)(f) of the Code that would
subject Tyecin to the tax under Section 4980(B)(b), or with respect to years
beginning before the effective date of such Section, any such Plan that was a
group health plan within the meaning of section 162(i)(3) of the Code as of that
date did not meet all of the then requirements of section 162(k) of the Code.
4.23 EMPLOYEES.
(a) Annexed hereto as SCHEDULE 4.23 is a list of the
names, titles and current annual salary rates of and bonuses paid or payable to
all present officers and employees of Tyecin and the Subsidiaries ("Employees").
(b) Except as set forth in SCHEDULE 4.23, neither Tyecin
nor any of the Subsidiaries has any employment agreement with, maintains any
Plans or has any obligations for any employee benefits or bonuses with respect
to, any Employees. Neither Tyecin nor any of the Subsidiaries has received a
written notice of default with respect to any such agreements.
(c) Except as set forth on SCHEDULE 4.23, neither Tyecin
nor any of the Subsidiaries has any existing obligations for bonuses or deferred
compensation to Employees or any employment agreements, severance agreement or
change of control agreements with any Employees, officers or directors.
4.24 LABOR AGREEMENTS. Neither Tyecin nor any Subsidiary is a
party to or is bound by any labor or collective bargaining agreement.
4.25 ENVIRONMENTAL LAWS.
(a) Tyecin and the Subsidiaries have obtained all permits,
licenses and other authorizations which are required with respect to the
operation of its business under Federal, state, foreign and local laws relating
to pollution or protection of the environment, including laws relating to
emissions, discharges, releases or threatened releases of pollutants,
contaminants, chemicals, or industrial, toxic or hazardous substances or wastes
into the environment (including, without limitation, ambient air, surface water,
ground water, land surface or subsurface strata) or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, chemicals, or industrial
toxic or hazardous substances or wastes (the "Environmental Laws").
(b) Neither Tyecin nor any of its Subsidiaries has
received written notice that it is not in compliance with any other limitations,
restrictions, conditions, standards, prohibitions, requirements, obligations,
schedules and timetables contained in the Environmental Laws or contained in any
regulation, code, plan, order, decree, judgment, injunction, notice or demand
letter issued, entered, promulgated or approved thereunder.
22
(c) Other than the items listed in SCHEDULE 4.25, there is
no civil, criminal or administrative action, suit, demand, claim, hearing notice
or demand letter pending against Tyecin of which it has received written notice,
relating in any way to the Environmental Laws or any regulation, code, plan,
order, decree, judgment, injunction, notice or demand letter issued, entered,
promulgated or approved thereunder.
4.26 BANK ACCOUNTS, LETTERS OF CREDIT AND POWERS OF ATTORNEY.
SCHEDULE 4.26 lists (a) all bank accounts, lock boxes and safe deposit boxes
relating to the business and operations of Tyecin and the Subsidiaries (SCHEDULE
4.26 also sets forth, opposite the identification of each such account or box by
its account or box number, the name, address, telephone number, and contact
person for the Bank or other institution where such account or box is located,
the account balance or description of the box contents, and the name of each
authorized signatory thereto), (b) all outstanding letters of credit issued by
financial institutions for the account of Tyecin and the Subsidiaries (setting
forth, in each case, the name, address, telephone number, and contact person for
each financial institution issuing such letter of credit, the maximum amount
available under such letter, the terms (including the expiration date) of such
letter of credit and the party or parties in whose favor such letter of credit
was issued), and (c) the name, address, and telephone number of each person who
has a power of attorney to act on behalf of Tyecin and the Subsidiaries. Tyecin
has heretofore delivered to Manugistics true, correct and complete copies of
each letter of credit and each power of attorney described on SCHEDULE 4.26.
4.27 ACCOUNTS AND NOTES RECEIVABLE. Annexed hereto as SCHEDULE
4.27 is a true and correct list, as of the date hereof, setting forth, by
customer or obligor (SCHEDULE 4.27 also sets forth, opposite the name of each
customer or obligor, the address, telephone number, and contact person for such
customer or obligor), an aging of the accounts and notes receivable of Tyecin
and the Subsidiaries in categories of less than 30 days due, 30 to 59 days due,
60 to 89 days due and 90 days or greater due.
4.28 ACCOUNTS PAYABLE. Annexed hereto as SCHEDULE 4.28 is a true
and correct list, as of the date hereof, of all of the accounts payable of
Tyecin and the Subsidiaries, setting forth, by vendor (SCHEDULE 4.28 also sets
forth, opposite the name of each vendor, the address, telephone number, and
contact person for such vendor), an aging of the accounts payable of Tyecin and
the Subsidiaries in categories of less than 30 days due, 30 to 59 days due, 60
to 89 days due and 90 days or greater due.
4.29 CUSTOMERS, SUPPLIERS, LICENSEES AND CONSULTING AGREEMENTS.
SCHEDULE 4.29 annexed hereto is a complete and correct list of the names,
addresses, telephone numbers and contacts of (a) all customers of Tyecin and the
Subsidiaries during the last three (3) years who have generated revenues for
Tyecin in excess of
23
$10,000 per year for any of the three (3) years, (b) the ten (10) largest
suppliers of Tyecin and the Subsidiaries during the current fiscal year, (c) all
licensees of Tyecin and the Subsidiaries during the last three (3) years, and
(d) all persons for whom Tyecin and the Subsidiaries have performed consulting
services during the last three (3) years. SCHEDULE 4.29 includes the total sales
to, purchases by, or fees paid by each customer, licensee or party to a
consulting agreement and the total purchases by Tyecin from each supplier. No
supplier, customer, licensee, or party to a consulting arrangement with Tyecin
or the Subsidiaries during the last five (5) years has advised Tyecin or the
Subsidiaries, formally or informally, that it intends to terminate, discontinue
or substantially modify or reduce its business with Tyecin or the Subsidiaries
(i) by reason of the transactions contemplated by this Agreement or (ii)
otherwise. Neither Tyecin nor the Subsidiaries have any obligation or have made
any undertaking to perform work for customers, licensees, or parties to
consulting arrangements other than on a billable basis.
4.30 NO-SHOP AGREEMENT. From January 29, 1998, until March 14,
1998 Tyecin has complied in all respects with their obligations under the
January 29, 1998 No-Shop Agreement (the "No-Shop Agreement") between Tyecin and
Manugistics, Inc.
4.31 SOFTWARE MATTERS.
(a) Tyecin and the Subsidiaries own all software used in
the conduct of their business as described on SCHEDULE 4.31 (the "Owned
Software"). Except as set forth on SCHEDULE 4.31 hereto, Tyecin and the
Subsidiaries have the right and license to use that software described as
"Licensed Software" on SCHEDULE 4.31 (the "Licensed Software") free and clear of
any limitations or encumbrances. SCHEDULE 4.31 sets forth a list of all license
fees, rents, royalties or other charges that Tyecin and the Subsidiaries are
required or obligated to pay with respect to Licensed Software. Tyecin and the
Subsidiaries are in full compliance with all provisions of any license, lease or
other similar agreement pursuant to which Tyecin and the Subsidiaries have
rights to use the Licensed Software. Except as set forth in SCHEDULE 4.31, none
of the Licensed Software has been incorporated into or made a part of any other
Licensed Software. Except as set forth in SCHEDULE 4.31, the Owned Software and
Licensed Software constitute all software used in the business of Tyecin and/or
the Subsidiaries. Neither Tyecin nor the Subsidiaries are infringing any
intellectual property rights of any other person or entity with respect to the
Licensed Software or Owned Software, and, except as set forth in SCHEDULE 4.31,
no other person or entity is infringing any intellectual property rights of
Tyecin and/or the Subsidiaries with respect to the Licensed Software or Owned
Software which Tyecin and/or the Subsidiaries leases or licenses to such third
party.
(b) With respect to all software/computer applications
owned or licensed from others by Tyecin and/or any
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Subsidiary (other than standard off the shelf commercially available software),
including all source codes and related documentation (the "Software Materials"),
all of which are contained in SCHEDULE 4.31 hereto, there are no bugs, errors or
defects of any kind in said software/computer applications which could adversely
affect the value, utility, marketability, operability or any other aspect of
such software/computer applications, or which render the software/computer
applications unable to substantially conform to the Software Materials contained
in SCHEDULE 4.31 hereto.
(c) Tyecin and its Subsidiaries have conducted "Year 2000"
audits with respect to all software/computer applications owned or licensed from
others by Tyecin and/or the Subsidiaries as of the Closing Date, including the
Software Materials contained in SCHEDULE 4.31 hereto, the Owned Software and the
Licensed Software (the "Software Applications"), and all Software Applications
comply with and account for the fact of the arrival of the "year 2000" and will
not be adversely affected with respect to value, utility, marketability,
operability or any other aspect by virtue of the arrival of the "year 2000".
Without limiting the generality of the foregoing, except as set forth on
SCHEDULE 4.31 hereto, the Software Applications:
(i) will operate prior to, during and after the
calendar year 2000 A.D., and more specifically, will operate during each such
time period without error relating to date data, including any error relating
to, or the product of, date data which represents or references different
centuries or more than one century;
(ii) will not abnormally end or provide invalid or
incorrect results as a result of date data, including date data which
represents or references different centuries or more than one century; and
(iii) are capable of date data century recognition,
calculations which accommodate same century and multi-century formulas and date
values, and date data interface values that reflect the century.
(d) Tyecin and its Subsidiaries are in compliance with all
licenses from others for all software/computer applications used in or relating
to the business of Tyecin and its Subsidiaries as of the Effective Date,
including any such licenses with respect to the Software Materials contained in
Schedule 4.32 hereto, and Tyecin and its Subsidiaries have obtained and paid for
in full all necessary licenses for use of software/computer applications used in
or relating to the business of Tyecin and its Subsidiaries.
(e) Tyecin and the Subsidiaries have notified all of their
customers and/or vendors of any potential "Year 2000" problem contained in any
software or other products sold or licensed to such customers or vendors.
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4.32 TYECIN MERGER COSTS. Except as set forth on SCHEDULE 1.5(B),
Tyecin or the Principal Shareholders have not incurred and are not and will not
be liable for any fees, costs or expenses, including legal, accounting,
investment banking or broker fees, in connection with the transactions
contemplated by this Agreement. Except as contemplated by this Agreement,
Acquisition, Manugistics and the Surviving Company shall not be liable for any
fees of attorneys, accountants, consultants, finders or investment bankers or
other expenses incurred by or on behalf of Tyecin or any of its Subsidiaries or
shareholders in connection with the transactions contemplated by this Agreement.
4.33 ACCOUNTING MATTERS. Neither Tyecin nor its Subsidiaries have
through the date hereof and the Effective Date, taken, agreed to take, or will
take, any action, individually or if combined with others, that would prevent
Manugistics and the Surviving Company from treating the Merger for accounting
purposes as a "Pooling of Interests."
4.34 DOCUMENTS DELIVERED. Each of the Principal Shareholders has
received, reviewed and distributed to all of the shareholders of Tyecin, the
following documents pertaining to Manugistics, which documents have been filed
by Manugistics with the SEC: (A) Annual Report on Form 10-K for the fiscal year
ended February 28, 1997; and (B) third quarter reports on Form 10-Q for the
third quarter of the fiscal year ended February 28, 1998. The Principal
Shareholders have also distributed to all of the shareholders of Tyecin, the
following documents: (1) the Merger Agreement; (2) the Paying Agent Agreement;
(3) the Escrow Agreement; and (4) the Information Package (as defined in Section
9.3).
4.35 INFORMATION STATEMENT INFORMATION . Tyecin and the Principal
Shareholders represent and warrant that the information contained in the
Information Statement (as defined in Section 9.3) as it relates to Tyecin and
its Subsidiaries is true and correct as of the date thereof in all material
respects.
4.36 LIABILITIES AFTER FINANCIAL STATEMENTS. Except as disclosed
on SCHEDULE 4.7 and SCHEDULE 4.8, to the knowledge of the Principal Shareholders
there is no liability of Tyecin or the Subsidiaries that arises out of the
operations of Tyecin or the Subsidiaries at any time after the date of the most
recent Financial Statements and prior to the Effective Date (other than
liabilities arising in the ordinary course of business and consistent with past
practice during such period).
5. REPRESENTATIONS, WARRANTIES AND RELEASE OF PRINCIPAL
SHAREHOLDERS. The Principal Shareholders represent and warrant to Acquisition
and Manugistics that with respect to such Principal Shareholders:
(a) TITLE TO THE SHARES.
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(i) Such Principal Shareholder is the lawful record
and beneficial owner of, and has good and marketable title to, the number of
shares of Tyecin Common Stock, set forth opposite the name of such Principal
Shareholder on Schedule 2.2 hereto, free and clear of any and all liens,
security interests, charges, claims, pledges or other encumbrances and any other
rights of any third party pursuant to any agreement; (ii) there are no existing
agreements, subscriptions, options, warrants, calls, commitments, trusts (voting
or otherwise), or rights of any kind whatsoever granting to any person or entity
any interest in or the right to purchase or otherwise acquire any of such
Principal Shareholder's shares of Tyecin Common Stock at any time, or upon the
happening of any stated event; and (iii) there are no proxies, agreements or
understandings with respect to the voting of such Principal Shareholder's shares
of Tyecin Common Stock.
(b) POWER AND CAPACITY.
(i) Such Principal Shareholder has full right, power
and capacity to execute, deliver and perform this Agreement and to vote his
shares of Tyecin Common Stock in favor of the Merger and to execute and deliver
a consent in writing to the Merger pursuant to the terms hereof.
(ii) The execution and delivery of this Agreement, and
the consummation by such Principal Shareholder of the transactions herein
contemplated and the fulfillment by such Principal Shareholder of the terms
hereof, will not require any consent, approval, authorization, or order of,
notice to or filing with, any court, regulatory body, administrative agency or
other governmental body (except as may be required under the Securities Act or
state blue sky laws) and will not result in a breach of any of any indenture,
mortgage, deed of trust or other agreement or instrument to which such Principal
Shareholder is a party, or of any order, rule or regulation applicable to such
Principal Shareholder of any court or of any regulatory body or administrative
agency or other governmental body having jurisdiction.
(c) LITIGATION.
(i) Such Principal Shareholder is not a party to any
suit, action, arbitration or legal, administrative, governmental or other
proceeding or investigation pending or threatened which might adversely affect
or restrict the ability of such Principal Shareholder to consummate the
transactions contemplated by this Agreement or to perform his obligations
hereunder.
(ii) There is no judgment, order, injunction or decree
of any court, governmental authority or
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regulatory agency to which such Principal Shareholder is subject which might
adversely affect or restrict the ability of such Principal Shareholder to
consummate the transactions contemplated by this Agreement or to perform his
obligations hereunder.
(d) SPOUSAL CONSENT. The person executing the Spousal
Consent delivered in connection herewith is the only person who holds any
community property rights, by virtue of marriage or otherwise, in connection
with each Principal Shareholder's shares of Tyecin Common Stock.
(e) ABSENCE OF CLAIMS. Except for any claim they may have
against Tyecin in connection with this Merger Agreement and the other documents
executed in connection with this Merger Agreement, the Principal Shareholders
have no claim against Tyecin, and do hereby release Tyecin from any and all
claims which they now have or may have against Tyecin. Each of the Principal
Shareholders has express notice of the provisions of California Civil Code
Section 1542, which provides as follows:
"A general release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the time of
executing the release, which if known by him might have
materially affected his settlement with the debtor."
and being aware of said Code section, waives any rights they may have thereunder
as well as under any statutes or common law principles of similar effect in any
other states or any other jurisdiction or under Federal law.
(f) POOLING OF INTERESTS. The Principal Shareholders have
not taken any actions, individually or if combined with others, including
without limitation disposition of shares of Tyecin during certain periods prior
to the Merger, which would prevent Manugistics and the Surviving Company from
treating the Merger for accounting purposes as a "Pooling of Interests."
(g) ACCREDITED INVESTOR. Such Principal Shareholder
resides in the United States at the residence set forth on SCHEDULE 2.2 and is
an "accredited investor," as such term is defined in Rule 501(a) of Regulation D
of the Securities Act.
6. REPRESENTATIONS AND WARRANTIES OF ACQUISITION AND MANUGISTICS.
6.1 ORGANIZATION. Each of Acquisition and Manugistics is a
corporation duly organized, validly existing and in good standing under the laws
of Delaware and each has all requisite corporate power and authority and all
necessary licenses and permits to carry on its business as it has been and is
now
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being conducted and to own or lease and to operate the properties used in
connection therewith. Copies of the articles of incorporation and bylaws of
Manugistics and Acquisition made available to Tyecin are accurate and complete
as of the date hereof.
6.2 AUTHORIZATION; FREEDOM TO CONTRACT.
(a) The execution and delivery by Acquisition and
Manugistics of this Agreement, and the performance by each of them of its
respective obligations hereunder, has been duly authorized by all necessary
corporate actions.
(b) The execution and delivery of this Agreement by
Acquisition and Manugistics does not, and the performance by each of Acquisition
and Manugistics of its respective obligations hereunder will not, (i) violate or
conflict with any provision of its Certificates or Articles of Incorporation or
By-Laws thereof, as in effect on the date hereof or any amendments thereto or
restatements thereof, or (ii) violate any of the terms, conditions or provisions
of any applicable law, rule, regulation, order, writ, injunction, judgment or
decree of any court, governmental authority, or regulatory agency, or (iii)
result in a violation or breach of, or constitute (with or without due notice or
lapse of time or both) a default (or give rise to any right of termination,
cancellation or acceleration) under, any of the terms, conditions or provisions
of any note, bond, indenture, debenture, security agreement, trust agreement,
lien, mortgage, lease, agreement, license, franchise, permit, guaranty, joint
venture agreement, or other agreement, instrument or obligation, oral or
written, to which Acquisition and Manugistics is a party (whether as an original
party or as an assignee or successor) or by which any of their properties is
bound. No Permits and no Filings are required in connection with the execution,
delivery and performance of this Agreement by Acquisition and Manugistics and
the consummation of the transactions contemplated hereby, except (i) the filing
by Acquisition of the Certificate of Merger and California Merger Agreement, and
(ii) any filings required to be made with the Securities and Exchange
Commission.
6.3 LITIGATION.
(a) Acquisition and Manugistics are not parties to any
suit, action, arbitration or legal, administrative, governmental or other
proceeding or investigation pending or, to the knowledge of either of them,
threatened which might have a material adverse effect or restrict their ability
to consummate the transactions contemplated by this Agreement or to perform
their obligations thereunder.
(b) There is no judgment, order, injunction or decree of
any court, governmental authority or regulatory agency to
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which Acquisition or Manugistics is subject which might have a material adverse
effect on or restrict their ability to consummate the transactions contemplated
by this Agreement or to perform their obligations thereunder.
6.4 ISSUANCE OF SHARES. The shares of Preferred Closing Stock,
Common Closing Stock and Escrow Stock to be issued pursuant to Section 2 hereof
are duly authorized and, when issued pursuant to this Agreement, will be validly
issued, fully paid and nonassessable.
6.5 SECURITIES EXCHANGE ACT OF 1934. Manugistics has two classes
of authorized capital stock: preferred stock, of which no shares presently are
outstanding, and common stock, par value $.002 per share. Such common stock is
registered pursuant to Section 12 of the Securities Exchange Act of 1934, has
been subject to the reporting requirements of Section 13 of that Act for a
period of at least the last ninety (90) days and Manugistics has filed all the
reports required to be filed thereunder during the past twelve (12) months.
Manugistics agrees to use its reasonable best efforts to file with the United
States Securities and Exchange Commission (the "SEC") in a timely manner
(including available extensions of time) all reports and other documents
required to be filed by an issuer of securities registered under the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
6.6 INFORMATION PACKAGE INFORMATION. Manugistics and Acquisition
hereby represent and warrant that the information contained in the Confidential
Information Package as it relates to Manugistics and Acquisition is true and
correct as of the date thereof in all material respects, as supplemented by
EXHIBIT 6.6 (the "Consent and Acknowledgement"), except as otherwise provided in
that certain letter signed by Xxxxxxx Xxxxxxxx of Manugistics to Tyecin, dated
May 29, 1998.
7. POST-CLOSING COVENANTS.
7.1 REGISTRATION. Manugistics shall (i) file with the Securities
and Exchange Commission within thirty (30) days after the Effective Date, a
Registration Statement on an appropriate form (the "Registration Statement") for
the registration for offer and sale under the Securities Act of all of the
Preferred Closing Stock and Common Closing Stock held by the Tyecin Shareholders
and the Escrow Agent, subject, with respect to each Tyecin Shareholder, to such
shareholder having provided Manugistics with such information and documents as
Manugistics may reasonably request in writing from time to time in connection
with the Registration (as defined below); and (ii) file for appropriate
qualifications (if any), required under applicable state "blue-sky" securities
laws of such jurisdictions as the Paying Agent, on behalf of the Tyecin
Shareholders, or any of them, shall reasonably request in writing from time to
time; Manugistics shall cause such
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filings to occur as promptly as reasonably practicable after receipt of written
request therefor (collectively, the "Registration"). However, Manugistics shall
not be obligated to take any such actions if:
(a) in any particular jurisdiction, Manugistics would be
required to execute a general consent to service of process in effecting the
Registration unless Manugistics is already subject to service in such
jurisdiction and except as may be required by the Securities Act; or if
(b) (i) in the good faith judgment of the Board of
Directors of Manugistics, such Registration, qualification or compliance would
be seriously detrimental to Manugistics and the Board of Directors of
Manugistics concludes, as a result, that it is essential to defer such
Registration, at such time, and (ii) Manugistics shall furnish to the Paying
Agent a certificate signed by the President of Manugistics stating that, in the
good faith judgment of the Board of Directors of Manugistics, it would be
seriously detrimental to Manugistics for such Registration to be filed in the
near future and that it is, therefore, essential to defer the filing for such
Registration, qualification or compliance, then Manugistics shall have the right
to defer such filing for a period of not more than ninety (90) days after the
Effective Date.
7.2 CERTAIN RESTRICTIONS ON TRANSFER.
(a) Each of the Principal Shareholders agrees
not to sell, transfer or otherwise dispose, or offer to sell, transfer or
otherwise dispose of any of the Common Closing Stock (i) during the period in
which any of the shareholders of Tyecin shall not be permitted to effect sales,
otherwise dispose of any shares of Manugistics Common Stock or take any other
actions, individually or in combination with others, including without
limitation the disposition of shares of Manugistics during certain periods after
the Merger, which would prevent Manugistics and the Surviving Company from
accounting for the Merger as a "Pooling of Interests" (the "Pooling Lock-Up
Period"); and (ii) if such action would violate any applicable federal or state
securities laws. Neither Principal Shareholder shall take any action to sell
even a de minimus amount of their shares of Manugistics Common Stock (less than
10% of their Manugistics Common Stock) during the Pooling Lock-up Period without
first notifying Manugistics and will not dispose of such shares until such
Principal Shareholder receives written confirmation from Manugistics that such
sale will not violate the aggregate de minimus test with respect to the combined
companies.
(b) Each Principal Shareholder will not take,
directly or indirectly, any action designed to cause or result in, or which has
constituted or might reasonably be expected to
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constitute, the unlawful manipulation or stabilization of the price of common
stock or of any other securities of Manugistics, including without limitation,
in violation of Regulation M under the Securities Act.
7.3 PUBLICATION OF FINANCIALS. If Closing shall occur
on or before June 1, 1998, then on or before July 15, 1998, Manugistics shall
publish financial results covering at least thirty (30) days of post-Merger
combined operations for the period ending June 30, 1998.
7.4 WAIVER OF RIGHTS. Each of the Principal
Shareholders hereby waives, for himself and his heirs, legal representatives,
successors and assigns, the right to exercise any and all statutory and/or
contractual rights of redemption with respect to any of the shares of Tyecin
Common Stock and/or Tyecin Options owned of record or beneficially by such
Principal Shareholder, as well as the right to exercise any and all statutory
and/or contractual rights of appraisal with respect to any of the Tyecin Common
Stock or the Tyecin Options.
8. CONDITIONS PRECEDENT TO OBLIGATIONS OF TYECIN. All
obligations of Tyecin under this Agreement are subject to the fulfillment or
satisfaction, prior to or on the Closing Date, of each of the following
conditions precedent (any of which may be waived in writing in whole or in part
by Tyecin).
8.1 REPRESENTATIONS AND WARRANTIES TRUE AS OF
EFFECTIVE DATE. The representations and warranties of Acquisition and
Manugistics contained in this Agreement shall be true on and as of the date
hereof and shall be true on and as of the Effective Date with the same effect as
though such representations and warranties were made on and as of the Effective
Date, except for changes permitted by this Agreement.
8.2 COMPLIANCE WITH THIS AGREEMENT. Acquisition and
Manugistics shall have performed and complied with all agreements and conditions
contained in this Agreement that are required to be performed or complied with
by them prior to or at the Closing.
8.3 COMPANY CERTIFICATE. Tyecin shall have received
certificates dated the Closing Date and signed by the President (or other duly
authorized officer) of Acquisition and Manugistics respectively, certifying that
the conditions specified in Sections 8.1 and 8.2 have been fulfilled.
8.4 OPINION OF COUNSEL. Tyecin shall have received
the written opinion dated the Effective Date of Xxxxxxxx Xxxxxx LLP,
substantially in the form of EXHIBIT H hereto.
8.5 NO LITIGATION. No litigation, suit, action or
proceeding shall have been instituted by any party which (i) seeks
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to restrain or prohibit the transactions contemplated by this Agreement, (ii)
challenges the legality or validity of the transactions contemplated by this
Agreement, or (iii) seeks damages from Tyecin as a result of the transactions
contemplated by this Agreement.
8.6 CERTIFICATES. Tyecin shall have been furnished
with certificates dated the Closing Date and signed by the Secretary or an
Assistant Secretary of Acquisition and Manugistics setting forth (i) the names,
signatures and positions of the officers of Acquisition and Manugistics who have
executed this Agreement or any other document executed as a Closing document
hereunder, and (ii) a copy of the resolutions adopted by the board of directors
of Acquisition and Manugistics authorizing the execution, delivery and
performance of this Agreement.
8.7 FILING OF MERGER AGREEMENTS. Tyecin shall have
received evidence of the filing of the Certificate of Merger and the California
Merger Agreement.
9. CONDITIONS PRECEDENT TO OBLIGATIONS OF ACQUISITION AND
MANUGISTICS. All obligations of Acquisition and Manugistics under this Agreement
are subject to the fulfillment or satisfaction, prior to or on the Closing Date,
of each of the following conditions precedent (any of which may be waived in
writing in whole or in part by Acquisition and Manugistics).
9.1 REPRESENTATIONS AND WARRANTIES TRUE AS OF
EFFECTIVE DATE. The representations and warranties of Tyecin contained in this
Agreement shall be true on and as of the date hereof and shall be true on and as
of the Effective Date with the same effect as though such representations and
warranties were made on and as of the Effective Date, except for changes
permitted by this Agreement or changes in the ordinary course of business.
9.2 COMPLIANCE WITH THIS AGREEMENT.
(a) Tyecin shall have performed and complied and
shall have caused all of its Subsidiaries to perform and comply with all
agreements and conditions contained in this Agreement that are required to be
performed or complied with by it or its Subsidiaries prior to or at the Closing.
(b) The Principal Shareholders shall have
performed and complied with all agreements and conditions contained in this
Agreement that are required to be performed or complied with by the Principal
Shareholders prior to or at the Closing.
9.3 TYECIN CERTIFICATE. Acquisition and Manugistics
shall have received a certificate dated the Closing Date and signed by the
President of Tyecin and the Principal Shareholders
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certifying that the conditions specified in Sections 9.1 and 9.2 have been
fulfilled and that the shareholders and optionholders of Tyecin have each
received the information statement, which is attached hereto as EXHIBIT I (the
"Confidential Information Statement") as well as EXHIBIT 6.6, together with the
documents delivered in connection therewith, respectively.
9.4 OPINION OF COUNSEL. Acquisition and Manugistics
shall have received the written opinion, substantially in the form of EXHIBIT J
and annexed hereto, dated the Effective Date of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP,
counsel to Tyecin and with respect to the Principal Shareholders, as provided
therein.
9.5 NO LITIGATION. No litigation, suit, action or
proceeding shall have been instituted by any party which (i) seeks to restrain
or prohibit the transactions contemplated by this Agreement, (ii) challenges the
legality or validity of the transactions contemplated by this Agreement, or
(iii) seeks damages from Acquisition, Manugistics, Tyecin or any Subsidiary as a
result of the transactions contemplated by this Agreement.
9.6 CERTIFICATES. Acquisition and Manugistics shall
have been furnished with certificates dated the Closing Date and signed by the
Secretary of Tyecin setting forth (i) the names, signatures and positions of the
officers of Tyecin who have executed this Agreement or any other document
executed as a Closing document hereunder, (ii) a copy of the resolutions adopted
by the board of directors Tyecin authorizing the execution, delivery and
performance of this Agreement and all documents referred to herein, and (iii)
after receipt of a copy of EXHIBIT 6.6 by the Tyecin Shareholders, shareholder
approval by a majority of the holders of Tyecin Common Stock to the execution,
delivery and performance of this Agreement and all documents referred to herein.
9.7 RESIGNATIONS. Tyecin shall have delivered to
Manugistics and Acquisition the written resignation of each director and each
officer of Tyecin, and shall have delivered to Manugistics and Acquisition the
written resignations of all trustees and committee members of all Plans
including the Tyecin Option Plans as shall be requested in writing by
Manugistics or Acquisition.
9.8 TERMINATION OF AUTHORITY. Tyecin and the
Subsidiaries shall have canceled the authority of all persons permitted to (A)
draw on Tyecin's and the Subsidiaries' bank accounts, (B) charge on Tyecin's and
the Subsidiaries' credit cards, (C) have access to Tyecin's and the
Subsidiaries' safe deposit boxes, and (D) exercise a power of attorney to act on
behalf of Tyecin and the Subsidiaries, all effective as of the Effective Date.
9.9 EMPLOYEES.
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(a) The Employees of Tyecin set forth on
SCHEDULE 9.9(A) annexed hereto shall have acknowledged their intent to remain as
employees of the Surviving Company at the Effective Date and to be guided by the
employment practices, policies, and procedures of Manugistics.
(b) The Surviving Company shall have entered
into Employment Agreements with the employees listed on SCHEDULE 9.9(B) annexed
hereto.
9.10 NO LIENS. None of the shares of Tyecin Common
Stock or Tyecin Preferred Stock held by the Tyecin Shareholders shall be subject
to a Lien and each of the Principal Shareholders shall have delivered an
executed Spousal Consent, substantially in the form of EXHIBIT K.
9.11 COVENANTS NOT TO COMPETE. Tyecin shall have
delivered executed covenants not to compete, from the employees of Tyecin set
forth on SCHEDULE 9.11 annexed hereto.
9.12 CLOSING AGREEMENTS.
(a) Acquisition, the Escrow Agent and the Paying
Agent shall have executed the Escrow Agreement and delivered a fully-executed
original to Acquisition or Manugistics.
(b) The Surviving Company, the Principal
Shareholders, and the Paying Agent shall have executed the Paying Agent
Agreement and delivered a fully-executed original to Acquisition or Manugistics.
9.13 TERMINATION OF AGREEMENTS. The agreements with
the entities listed on SCHEDULE 9.13 annexed hereto shall have been terminated,
and Tyecin shall deliver a written confirmation from each of the entities listed
on SCHEDULE 9.13 of their waiver and relinquishment of all rights against
Tyecin, the Subsidiaries, the Surviving Company, Acquisition, and Manugistics.
9.14 ASSIGNMENT OF AGREEMENTS. The agreements with the
entities listed on SCHEDULE 9.14 annexed hereto shall have been assigned and/or
assumed and Tyecin shall have delivered to Manugistics a written consent to the
transfer of ownership and/or an assignment of rights from the parties to such
agreements.
9.15 RELEASE FROM AGREEMENTS. Tyecin shall have
delivered a written release of all claims against Tyecin, the Subsidiaries, the
Surviving Company, Acquisition, and Manugistics from those entities or persons
listed on SCHEDULE 9.15.
9.16 BOARD APPROVAL. The boards of directors of each
of Manugistics and Acquisition shall have approved this Merger
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Agreement and transactions contemplated thereby.
9.17 FILING OF MERGER DOCUMENTS. Manugistics shall
have received evidence of the filing of the Certificate of Merger and the
California Merger Agreement.
9.18 POOLING TREATMENT.
(a) Manugistics shall have received a
consolidated balance sheet as of March 31, 1998 from Tyecin and an unaudited
consolidated balance sheet as of December 31, 1997 from Price Waterhouse,
Tyecin's accounting auditors.
(b) Manugistics and Acquisition shall have
received an opinion satisfactory in form and substance to Manugistics and
Acquisition from Tyecin's accounting auditors, that with respect to Tyecin, the
Merger qualifies for pooling of interests accounting treatment if consummated in
accordance with this Agreement.
9.19 TYECIN-INNOTECH WAIVER. Manugistics shall have
received a waiver from Innotech of any of its rights to put its stock in
Tyecin-Innotech to Tyecin and/or to terminate any of the existing agreements
between the Preferred Shareholder and Tyecin-Innotech.
9.20 CONVERSION BY PREFERRED SHAREHOLDER. The
Preferred Shareholder shall have converted all of the issued shares of Tyecin
Preferred Stock into shares of Tyecin Common Stock.
9.21 CONVERSION OF RELATED PARTY DEBTS. Before the
Closing Date, Manugistics shall have received a certificate stating that all
indebtedness, if any, of Tyecin to the Tyecin Shareholders or any other related
parties shall have been converted to equity in Tyecin or otherwise retired.
9.22 SHAREHOLDER TENDER. The holders of not less than
ninety-seven (97%) percent of the Tyecin Common Stock and of one hundred (100%)
percent of the Tyecin Preferred Stock shall have tendered their shares in
accordance with the terms of this Merger Agreement.
9.23 LETTERS OF TRANSMITTAL. The holders of not less
than ninety-seven (97%) percent of the Tyecin Common Stock and of one hundred
(100%) percent of the holders of Tyecin Preferred Stock shall have delivered an
executed Letter of Transmittal substantially in the form of EXHIBIT G and their
shares of Tyecin Common Stock and Tyecin Preferred Stock in accordance with the
terms of this Merger Agreement and the Letter of Transmittal.
9.24 LOCK-UP LETTERS FROM AFFILIATES. Each affiliate
of Tyecin shall have delivered to Manugistics a letter
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satisfactory in form and substance to counsel for Manugistics, to the effect
that (a) such affiliate or person has not taken and agrees not to take any
actions, individually or if combined with others, including disposition of any
shares of Tyecin and/or Manugistics during certain periods before and after the
Merger, which would preclude the Merger from qualifying for "Pooling of
Interests" treatment, and (b) has not taken any action which is in violation of
any applicable federal or state securities laws, and agrees not to take any such
action.
9.25 TYECIN OPTION PLAN RESOLUTION. Manugistics shall
have received from Tyecin a resolution from its board of directors, amending the
Option Plans to reduce the number of Tyecin Options issuable thereunder to that
number of Tyecin Options issued and outstanding as provided on SCHEDULE 1.2(D).
9.26 NOTICE OF SHAREHOLDER APPROVAL. Manugistics shall
have received notice from Tyecin of any holders of potentially Dissenting
Shares.
9.27 CONSENT AND ACKNOWLEDGEMENT. Tyecin shall have
delivered to all shareholders of Tyecin a Consent and Acknowledgement in the
form of EXHIBIT 6.6 and Manugistics shall have received an executed Consent and
Acknowledgement in the form of EXHIBIT 6.6 from each of the Tyecin Shareholders
who have tendered their shares pursuant to Section 9.22 hereof and delivered a
Letter of Transmittal pursuant to Section 9.23 hereof.
10. COOPERATION AND POST CLOSING OBLIGATIONS.
10.1 FURTHER ASSURANCES. From and after the Closing,
all of the parties to this Agreement agree to execute and deliver such further
documents and instruments and to do such other acts and things as any other
party, as the case may be, may reasonably request in order to effectuate the
transactions contemplated by this Agreement. In the event any party shall be
involved in litigation, threatened litigation or government inquiries with
respect to a matter involving any of them, the other parties shall also make
available to such first party, at reasonable times and subject to the reasonable
requirements of its or his own business, such of its or his personnel as may
have information relevant to the matters provided such first party shall
reimburse the providing party for its or his reasonable costs for employee time
incurred in connection therewith if more than one business day is required.
Following the Closing, the parties will cooperate with each other in connection
with tax audits and in the defense of any legal proceedings, consistent with the
other provisions for defense of claims provided in Section 10, to the extent
such cooperation does not cause unreasonable expense, unless such expense is
borne by the requesting party.
10.2 FURNISHING NOTICE. From the date of this
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Agreement through and including the Effective Date, each of the parties to this
Agreement agree to furnish to all other parties to this Agreement, copies of any
notices, documents, requests, court papers, or other materials received from any
governmental agency or any other third party with respect to the transactions
contemplated by this Agreement, except where it is obvious from such notice,
document, request, court paper or other material that the other parties were
already furnished with a copy thereof.
10.3 CERTIFICATE LEGENDS. Each stock certificate
evidencing the Preferred Closing Stock, Common Closing Stock and Escrow Stock
shall be designated with such legend or legends as shall be deemed necessary or
appropriate by Manugistics upon the advice of its counsel.
11. INDEMNIFICATION.
11.1 GENERAL. Manugistics shall indemnify each of the
Principal Shareholders and hold each of them harmless at all times from and
after the Effective Date against and in respect of:
(a) Any and all damages, losses, liabilities,
obligations, claims, encumbrances, deficiencies, costs and expenses, including
without limitation reasonable attorneys' fees and other costs and expenses
incident to, any action, investigation, claim or proceeding (all hereinafter
referred to as "Losses") resulting from the breach or failure of observance or
performance of any representation, warranty, covenant, agreement or commitment
made by Manugistics or Acquisition in this Agreement.
(b) Any and all actions, suits, proceedings,
claims, demands, assessments, judgments, costs, losses, damages, liabilities
and reasonable legal and other expenses incident to the foregoing.
The foregoing indemnity rights shall be in addition to any other rights
and remedies which the Principal Shareholders may have under this Agreement, the
Escrow Agreement or the Paying Agent Agreement and as a matter of law or equity.
Any indemnity by Manugistics hereunder shall be satisfied by the issuance of
shares of common stock of Manugistics in the amount of the claim using the
NASDAQ Exchange closing price on the Closing Date.
11.2 INDEMNIFICATION BY THE TYECIN SHAREHOLDERS. The
Tyecin Shareholders, including the Principal Shareholders, shall indemnify each
of the Surviving Company, Acquisition and Manugistics and hold each of them
harmless at all times from and after the Effective Date against and in respect
of:
(a) Any and all damages, losses, liabilities,
obligations, claims, encumbrances, deficiencies, costs and expenses, including,
without limitation, reasonable attorneys' fees
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and other costs and expenses incident to, any action, investigation, claim or
proceeding (all hereinafter referred to as "Losses") suffered, sustained,
incurred or required to be paid by Manugistics, Acquisition or the Surviving
Company by reason of the following:
(i) Any breach or failure of observance or
performance of any representation, warranty, covenant, agreement or commitment
made by Tyecin and/or the Principal Shareholders in this Agreement or in any
other agreement, certificate or document executed or delivered in connection
herewith or as a result of any such representation, warranty, covenant,
agreement or commitment being untrue or incorrect in any respect; and
(ii) Any claims by former Tyecin employees concerning
their Tyecin Options; provided, further, that nothing contained in this Section
11.2(a)(iii) shall be interpreted or construed to limit any claims that
Manugistics or the Surviving Company may have pursuant to Section 11.2(a)(i) and
(ii) hereof.
(iii) The civil action filed on April 23, 1998 in the
Superior Court of California, County of Xxxxx Xxxxx, Xx. XX000000, by a former
Tyecin employee and optionholder against Tyecin Systems, Inc. and Xxxxxxx X.
Xxxxxx.
(b) Any and all actions, suits, proceedings, claims,
demands, assessments, judgments, costs, losses, damages, liabilities and
reasonable legal and other expenses incident to the foregoing.
The foregoing indemnity rights shall be in addition to any other rights
and remedies which the Surviving Company, Acquisition or Manugistics may have
under this Agreement, the Escrow Agreement, the Paying Agent Agreement or any
other agreement delivered in connection with the Merger, and as a matter of law
or equity.
11.3 PERIOD OF INDEMNITY. The aforesaid indemnities shall remain
in full force and effect with respect to claims relating to breaches of
representations, warranties, covenants, or agreements, for a period equal to the
earlier of one (1) year from the Effective Date or the first public release of
consolidated audited financial statements for the Surviving Company and
Manugistics.
11.4 NOTICE TO THE INDEMNITOR. Within a reasonable period after
the assertion of any claim by a third-party or occurrence of any event which may
give rise to a claim for indemnification from an indemnitor (the "Indemnitor")
under this Section 11, an indemnified party (the "Indemnified Party") shall
notify the Indemnitor in writing of such claim and advise the Indemnitor whether
the Indemnified Party intends to contest same, but the failure to give or delay
in giving such notice shall not
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affect the obligations of the Indemnitor hereunder except to the extent the
Indemnitor actually has been prejudiced thereby.
11.5 RIGHTS OF PARTIES TO SETTLE OR DEFEND. If the Indemnified
Party determines not to contest such claim, the Indemnitor shall have the right,
at its own expense, to contest and defend against such claim. If the Indemnified
Party determines to contest such claim, the Indemnitor shall have the right to
be represented, at its own expense by its own counsel and accountants, their
participation to be subject to the reasonable direction of the Indemnified
Party. In either case, the Indemnified Party shall make available to the
Indemnitor and its attorneys and accountants, at all reasonable times during
normal business hours, all books, records, and other documents in its possession
relating to such claim. The party contesting any such claim shall be furnished
all reasonable assistance in connection therewith by the other party. If the
Indemnitor fails to undertake the defense of or settle or pay any such
third-party claim within ten (10) days after the Indemnified Party has given
written notice to the Indemnitor advising that the Indemnified Party does not
intend to contest such claim, or if the Indemnitor, after having received such
notification from the Indemnified Party, fails forthwith to defend, settle or
pay such claim, then the Indemnified Party may take any and all necessary action
to dispose of such claim including, without limitation, the settlement or full
payment thereof upon such terms as it shall deem appropriate, in its sole
discretion, subject to the following with respect to any proposed settlement
thereof.
11.6 SETTLEMENT PROPOSALS. In the event the Indemnified Party
desires to settle any such third-party claim (whether or not contested by the
Indemnitor), the Indemnified Party shall advise the Indemnitor of the amount it
proposes to pay in settlement thereof (the "Proposed Settlement"). If such
Proposed Settlement is unsatisfactory to the Indemnitor, it shall have the
right, at its expense, to contest such claim by giving written notice of such
election to the Indemnified Party within ten (10) days after the Indemnitor has
been advised of the Proposed Settlement. If the Indemnitor does not deliver such
written notice within ten (10) days after the Indemnitor has been advised of the
Proposed Settlement, the Indemnified Party may offer the Proposed Settlement to
the third party making such claim. If the Proposed Settlement is not accepted by
the party making such claim, any new Proposed Settlement figure which the
Indemnified Party may wish to present to the party making such claim shall first
be presented to the Indemnitor who shall have the right, subject to the
conditions hereinabove set forth in this Section, to contest such claim. In all
such events, the Indemnitor shall indemnify the Indemnified Party and hold it
harmless against and from any and all costs of defense, payment or settlement,
including reasonable attorneys' fees incurred in connection therewith.
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11.7 REIMBURSEMENT.
(a) IN GENERAL. At the time that the Indemnified Party
shall suffer a Loss because of a breach of any warranty, representation,
covenant or agreement by the Indemnitor or at the time the amount of any
liability on the part of the Indemnitor under this Section is determined (which
in the case of payments to third persons shall be the earlier of (i) the date of
such payments or (ii) the date that a court of competent jurisdiction shall
enter a final judgment, order or decree (after exhaustion of appeal rights
establishing such liability), the Indemnitor shall forthwith, upon notice from
the Indemnified Party, pay to the Indemnified Party, the amount of the indemnity
claim; provided, however, that unless the Indemnitor expressly denies in writing
its indemnity obligation hereunder, the Indemnitor shall pay the reasonable
attorneys' fees and other litigation expenses from time to time incurred by the
Indemnified Party promptly upon the submission of invoices therefor by the
Indemnified Party. If such amount is not paid forthwith, then the Indemnified
Party may, at its option, take legal action against the Indemnitor for
reimbursement in the amount of its indemnity claim. For purposes hereof the
indemnity claim shall include the amounts so paid (or determined to be owing) by
the Indemnified Party together with costs and reasonable attorneys' fees and
interest on the foregoing items at the rate of nine percent (9%) per annum from
the date the obligation is due from the Indemnitor to the Indemnified Party, as
hereinabove provided, until the indemnity claim shall be paid.
(b) ESCROW STOCK. If the Indemnified Party is Manugistics,
Acquisition or the Surviving Company then the Indemnified Party shall have the
right to obtain payment of its Losses from the Escrow Fund pursuant to and in
accordance with the terms of the Escrow Agreement, such Escrow Fund having been
created as security for any claims for indemnification brought by Manugistics,
Acquisition or the Surviving Company as provided in this Section 11, except for
claims relating to the breach of the representations, warranties and covenants
contained in Sections 5(a), 5(b), 5(c), 5(g) 7.2(a)(ii), and 7.2(b), which
claims shall not be satisfied from the Escrow Fund. The terms and conditions of
the Escrow Agreement shall govern any claims brought by Manugistics or
Acquisition or the Surviving Company for payment from the Escrow Fund.
11.8 SHAREHOLDER/OPTIONHOLDER CLAIMS. Without in any way limiting
the generality of the foregoing Section 11.2 of this Agreement, the Tyecin
Shareholders shall indemnify each of the Surviving Company, Acquisition and
Manugistics and hold each of them harmless at all times from and after the
Closing Date against and in respect of any claims brought by any shareholder of
Tyecin or any optionholder of Tyecin for acts or omissions prior to the
Effective Date related to the stock or option holdings in Tyecin.
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11.9 LIMITATION OF LIABILITY.
(a) It is understood and acknowledged that each of the
Surviving Company, Acquisition and Manugistics may demand tender of the entire
amount of Escrow Stock to the extent that the conditions precedent to
disbursement thereof as set forth in the Escrow Agreement are met and nothing in
this Section 11.9 shall limit the ability of Manugistics, the Surviving Company
and Acquisition to so demand and receive the Escrow Stock.
(b) Subject to the provisions of Section 11.9(a) above and
to Section 11.9(d) below, but otherwise notwithstanding anything contained
herein to the contrary, the total liability of the Tyecin Shareholders,
including the Principal Shareholders, for payment to Manugistics, Acquisition
and the Surviving Company for all Losses, by reason of any breach of this
Agreement or otherwise, shall be limited to the Escrow Fund. Each reduction in
the Escrow Fund pursuant to the terms of the Escrow Agreement shall reduce each
Tyecin Shareholder's share of the Escrow Stock on a pro rata basis based on the
percentage share of the total Manugistics Common Stock to which they are
entitled to receive pursuant to Sections 1.2(a) and 1.2(b) of this Agreement.
(c) Except for any breach of any obligations under Section
7.3, no amount shall be payable by the Principal Shareholders hereunder until
the aggregate amount of the Losses suffered or sustained by Manugistics,
Acquisition and Surviving Company collectively exceeds $50,000 (the "Base
Amount"), and at such time as such aggregate Losses exceed the Base Amount, all
Losses in excess of the Base Amount shall be due and owing from the Tyecin
Shareholders, as the case may be.
(d) Any claims relating to the breach of representations,
warranties and covenants contained in Sections 5(a), 5(b), 5(c), 5(g) and
7.2(a)(ii) and 7.2(b) shall not be satisfied out of the Escrow Stock nor shall
such claims be limited to the value of the Escrow Stock but, rather, shall be
limited to the value of the consideration received by the person or entity
against whom the claim is made. Satisfaction of any such claims shall be made
first from Manugistics Common Stock (using the NASDAQ Exchange closing price on
the Closing Date) then owned by the Indemnitor(s) and then from cash and/or
other assets of the Indemnitor(s).
12. BROKERS' AND FINDERS' FEES. Each of the Principal
Shareholders, Tyecin, Acquisition and Manugistics represent and warrant to each
other party hereto that no person or entity is entitled to a brokerage fee or
other commission in respect of the execution of this Agreement or the
consummation of the transactions contemplated hereby, except, with respect to
Tyecin, Broadview Associates whose fees are listed on SCHEDULE 1.5(B).
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13. PRESS RELEASES; CONFIDENTIALITY. Except as required by a
judicial, regulatory or governmental authority with competent jurisdiction,
including, but not limited to, obligations of Manugistics to make public
disclosures under Federal and state securities laws, and except as required by
the rules of the National Association of Securities Dealers ("NASD") applicable
to Manugistics, no party hereto shall issue any press release nor otherwise make
public any information with respect to this Agreement or the transactions
contemplated thereby, prior to the Effective Date, without the consent of the
other parties to this Agreement. The parties agree that all discussions,
negotiations, and transactions contemplated hereby and all information exchanged
pursuant hereto and in connection with due diligence, shall be kept strictly
confidential, except as otherwise provided in this Section 13. Each Principal
Shareholder covenants and agrees that, at all time following execution of this
Agreement, he shall not use for his own benefit or divulge to any other person,
firm, or corporation, any confidential information or trade secrets which
Tyecin, the Surviving Company, Acquisition or Manugistics may have imparted to
such Principal Shareholder.
14. CONTENTS OF AGREEMENT; PARTIES IN INTEREST; ETC. This
Agreement and the agreements referred to herein set forth the entire
understanding of the parties hereto with respect to the transactions
contemplated hereby. Except as set forth in Sections 4 and 5 of this Agreement
and the Schedules and Exhibits hereto, there are no representations or
warranties, express or implied, made by any party to this Agreement with respect
to the subject matter of this Agreement. This Agreement shall not be amended
except by a written instrument duly executed by each of the parties hereto. Any
and all previous agreements and understandings between or among the parties
regarding the subject matter hereof, whether written or oral, are superseded by
this Agreement and the documents referred to herein, except for the
confidentiality provisions of Section 12 hereof, the No-Shop Agreement and the
Confidentiality Agreement which shall continue in full force and effect.
15. ASSIGNMENT AND BINDING EFFECT. This Agreement may not be
assigned by any party hereto without the prior written consent of the other
parties. All of the terms and provisions of this Agreement shall be binding upon
and inure to the benefit of and be enforceable by the respective successors and
assigns of the parties hereto. Notwithstanding anything to the contrary
contained elsewhere in this Agreement or in any other document or agreement
delivered in connection herewith, the obligation of Manugistics to file the
Registration Statement is solely for the personal benefit of each Tyecin
Shareholder.
16. WAIVER. Any term or provision of this Agreement may be
waived at any time by the party entitled to the benefit thereof by a written
instrument duly executed by such party.
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17. TERMINATION. This Agreement may be terminated by the mutual
agreement of all of Tyecin, Acquisition and Manugistics at any time prior to the
Effective Date. Any termination pursuant to this Section 17 shall be without
liability on the part of any party to the other party hereto.
18. NOTICES. Any notice, request, demand, waiver, consent,
approval, or other communication which is required or permitted to be given to
any party hereunder shall be in writing and shall be deemed given only if
delivered to the party personally or sent to the party by telegram or by
registered or certified mail (return receipt requested), with postage and
registration or certification fees thereon prepaid, addressed to the party at
its address set forth below:
If to Acquisition or Manugistics:
c/o
Manugistics Group, Inc.
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxx, Esquire
with a copy to:
Xxxxxxxx X. Xxxx, Esquire
Xxxxxxxx Xxxxxx LLP
3200 Mellon Bank Center
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
If to Tyecin or the Principal Shareholders(prior to
the Closing):
Tyecin Systems, Inc.
Xxxxxxx X. Xxxxxx and
Xxxxxxx Xxxxxxx
Four Xxxx Xxxxxx
Xxx Xxxxx, XX 00000
with a copy to:
Xxxxxx X. Xxxxxxxxx, Esquire
Xxxxxxx Phleger & Xxxxxxxx LLP
2 Embarcadero Place
0000 Xxxx Xxxx
Xxxx Xxxx, XX 00000
If to the Principal Shareholders (after the Closing):
Xxxxxxx X. Xxxxxx
Xxxxxxx Xxxxxxx
c/o Tyecin Systems, Inc.
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Xxxx Xxxx Xxxxxx
Xxx Xxxxx, XX 00000
If to Tyecin (after the Closing):
Tyecin Systems, Inc.
Four Xxxx Xxxxxx
Xxx Xxxxx, XX 00000
with a copy to:
Xxxxxxxx X. Xxxx, Esquire
Xxxxxxxx Xxxxxx LLP
3200 Mellon Bank Center
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
or to such other address or person as any party may have specified in a notice
duly given to the other party as provided herein. Such notice, request, demand,
waiver, consent, approval or other communication will be deemed to have been
given as of the date so delivered, telegraphed or mailed.
19. GOVERNING LAW. This Agreement shall be governed
by and interpreted and enforced in accordance with the laws of the State of
Delaware as applied to contracts made and fully performed in such state, except
insofar as the CGCL shall be mandatorily applicable to the Merger and the rights
of shareholders of Tyecin in connection therewith.
20. NO BENEFIT TO OTHERS. The representations,
warranties, covenants, agreements and indemnities contained in this Agreement
are for the sole benefit of the parties hereto, and their respective successors
and assigns, and they shall not be construed as conferring, and are not intended
to confer, any rights on any other persons.
21. SECTION HEADINGS. All section headings are for
convenience only and shall in no way modify or restrict any of the terms or
provisions hereof.
22. SCHEDULES AND EXHIBITS. All Schedules and
Exhibits referred to herein are intended to be and hereby are specifically made
a part of this Agreement.
23. COUNTERPARTS. This Agreement may be executed in
two or more counterparts, each of which shall be deemed an original, and Tyecin,
Acquisition, and Manugistics and each of the Principal Shareholders may become a
party hereto by executing a counterpart
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hereof. This Agreement and any counterpart so executed shall be deemed to be one
and the same instrument.
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IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have duly executed this Agreement on the date first above written.
Attest: TYECIN SYSTEMS, INC.
By: By:
--------------------------- -----------------------------
Secretary President
Attest: TYECIN ACQUISITION, INC.
By: By:
--------------------------- -----------------------------
Secretary President
Attest: MANUGISTICS GROUP, INC.
By: By:
--------------------------- -----------------------------
Secretary President
PRINCIPAL SHAREHOLDERS:
Witness: XXXXXXX X. XXXXXX
------------------------------------------------------------------------
Witness: XXXXXXX X. XXXXXXX
[SIGNATURE TO AGREEMENT AND PLAN OF MERGER]
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EXHIBITS AND SCHEDULES
EXHIBITS:
Exhibit A Certificate of Merger
Exhibit B California Merger Agreement
Exhibit C Tyecin Option Plan
Exhibit D Tyecin Option Plan
Exhibit E Escrow Agreement
Exhibit F Paying Agent Agreement
Exhibit G Letter of Transmittal
Exhibit H Opinion of Xxxxxxxx Xxxxxx LLP
Exhibit I Confidential Information Statement
Exhibit J Opinion of Xxxxxxx, Phleger & Xxxxxxxx LLP
Exhibit K Spousal Consent
Exhibit 6.6 Consent and Acknowledgement
SCHEDULES:
1.2(d) Tyecin Options
1.5(b) Tyecin Merger Costs
2.2 Closing Stock Recipients
4.1 Qualification
4.3 Authorization; Freedom to Contract
4.4 Subsidiaries and Affiliates
4.5 Charter and Organizational Documents
4.6 Financial Statements
4.7 Liabilities
4.8 Absence of Change of Events
4.9 Title to Properties
4.10 Real Property
4.11 Machinery and Equipment
4.12 Inventory
4.13 Leases and Licenses
4.14 Patents, Copyrights and Trademarks
4.15 Contracts
4.16 Defaults
4.17 Insurance
4.18 Capital Expenditures
4.19 Litigation
4.20 Legal Compliance
4.21 Tax Matters
4.22 Employee Benefit Plan
4.23 Employees
4.24 Labor Agreements
4.25 Environmental Laws
4.26 Bank Accounts, Letters of Credit and Powers of
Attorney
4.27 Accounts and Note Receivable
4.28 Accounts Payable
4.29 Customers, Suppliers, Licensees and Consulting
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Agreements
4.32 Software Matters
9.9(a) Employee Acknowledgements
9.9(b) Employment Agreements
9.13 Termination of Agreements
9.14 Assignments and Consents
9.15 Releases
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