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EXHIBIT 10.54
AGREEMENT FOR PURCHASE AND SALE OF ASSETS
THIS AGREEMENT FOR PURCHASE AND SALE OF ASSETS (the
"Agreement") is made and entered into effective as of the 4th day of
September, 1997 ("the date of this Agreement"), by and between
Intertrak Corporation, a Minnesota corporation ("Intertrak"), Xx.
Xxxxx Xxxxx, a Minnesota resident and principal of Intertrak, and
Group 1 Software, Inc., a Delaware corporation and Gruco, Inc., a
Delaware corporation and wholly-owned subsidiary of Group 1
Software, Inc. (Group 1 Software, Inc. and Gruco, Inc.,
collectively "Group 1"), regarding the acquisition by Intertrak of
certain of the assets of Group 1 and other transactions described
below.
In consideration of the premises and the mutual promises,
representations, warranties and covenants hereinafter set forth,
and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Intertrak, Xxxxx and
Group 1 intending to be legally bound hereby agree as follows.
1. The Assets.
a) Intertrak acquires all of Group 1's right, title and
interest, free and clear of any and all claims, liens,
encumbrances, security interests, pledges or any other clouds on
title of any nature known to Group 1 (except the licenses and other
rights granted to third parties with respect to copying and use) to
the following:
(i) the list of all current customers of the Software
including those identified in Exhibit 3.1;
(ii) the trademark WorldTrak (the "Trademark");
(iii) all of Group 1's right, title and interest in the
contracts identified in Exhibit 3.1, hereto (the "Assigned
Agreements");
(iv) all of Group 1's inventory, including documentation and
media, used to supply copies of the Software and Documentation to
customers; and
(v) the WorlTrak trade show exhibit booth for the Software.
b) Group 1 hereby grants to Intertrak a worldwide, full
copyright license to the computer programming and its derivative
works, customizations, supplemental works, interim works, works in
progress and all other intellectual property rights and portions
thereof, whether or not fixed in a tangible medium of expression
(including without limitation all copyrights and applications for
such, rights with respect to patents and applications for such,
moral rights, inventions, original works of authorship,
discoveries, concepts, data, processes, ideas and
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know-how contained therein or associated therewith), with respect to
all computer platforms and configurations known or unknown (e.g., -
PC, midrange, LAN, WAN, client server, mini, mainframe) for the
computer programs referred to by Group 1 as "WorldTrak" (i.e. -
"AMC", "FSA" and "SMA") and the development tools for such software
(collectively the "Software"); (Software excludes, however, any
development tools to which Group 1 only has a license; as to these
licenses - which are identified on Exhibit 1.4, hereto, Group 1
shall use reasonable efforts to assign to Intertrak promptly after
the execution of this Agreement any license for development tools
for which Group 1 has a current right). The license to the
Software includes the right to all of Group 1's concomitant
installation, technical, functional or user documentation or
specifications for the Software (the "Documentation"). The license
to the Software and the Documentation granted in this Section
includes the rights to use, reproduce, make derivative works of,
modify, enhance, license, sublicense, display, exhibit, perform,
transmit and otherwise exploit the Software in, on or through any
medium or means now known or hereafter developed, including without
limitation the Internet and/or satellite transmission; provided,
however, that at the end of the first thirty six (36) months from
the date of this Agreement and if Intertrak and Xxxxx have fully
performed under this Agreement, Group 1 shall transfer and assign
to Intertrak all of Group 1's right, title and interest in the
Software and Documentation (by executing and delivering the Xxxx of
Sale and Assignment of Copyrights attached hereto as Exhibits 1.1
and 1.2), whereupon the aforesaid copyright license shall merge
into the title then so transferred. Notwithstanding the foregoing,
Intertrak acknowledges that Group 1 shall retain a perpetual, world
wide, unlimited site and seat, fully paid license to copy, operate
and use the Software and the Documentation for its own internal
purposes.
b) The Software is delivered in object code and source
code. The Software includes all of the definition of files, fields
of files, variables, details, installation and maintenance
specifications, inputs and outputs (including codes and acronyms),
program descriptions, file descriptions, formats and layouts,
report descriptions and layouts, screen descriptions and layouts,
graphical and non-graphical user interfaces, input documents, data
elements, paper processing flowcharts, computer processing
flowcharts, processing narratives, editing rules, password
development and protection rules, telecommunications requirements,
glossaries and manual procedures with respect to the aforesaid
computer programming. The Documentation is delivered in hard copy
and electronic media to the extent recorded on each. Intertrak
shall replace all references to Group 1 in the Documentation with
Intertrak.
2. Purchase Price. The total purchase price for the
Software, Documentation and Trademark and consideration for the
other transactions to be consummated hereunder, is as follows:
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a) Intertrak shall purchase the Software, Documentation
and Trademark for:
i) One Dollar ($1.00) paid upon full execution of
this Agreement; plus
ii) Thirty percent (30%) of all Revenue (as defined
below) received by, or due and owing to, Intertrak through the
first thirty-six (36) months from the date of this Agreement.
One-Half (1/2) of the aforesaid thirty percent (30%) of Revenue shall
be due and payable to Group 1 within twenty (20) days of
Intertrak's receipt of payment from the customer and payment of the
remaining One-Half (1/2) of the aforesaid thirty percent (30%) of
Revenue may be deferred so that it shall be paid to Group 1 by
Intertrak no later than thirty (30) days after the end of such
36-month period, together with interest on the unpaid balance at
the prime rate charged by Group 1's primary commercial lender.
Notwithstanding the foregoing, Intertrak shall promptly forward to
Group 1 any payments made by customers under any of the Assigned
Agreements (defined below) for any renewal maintenance of the
current version of the Software (i.e., 3.4) or any prior versions
of the Software to be provided up through July 31, 1999.
b) Revenue shall consist of all of the license fees (or
other payments that enable a party to use the Software but in any
event not to include fees paid to Intertrak for professional
services, training or custom computer programming) received by, or
then due and owing to, Intertrak from any party so that such party
may copy, operate or otherwise use any of the Software,
Documentation or Trademark for the benefit of that party or of any
other party. Revenue, however, shall be: (i) net of payments made
to third parties (e.g. VAR'S./OEMs) through Intertrak for goods or
services of such third parties but in conjunction with the
Software, (ii) net of returns, refunds and discounts, (iii) exclude
costs paid by Intertrak (and not reimbursed by Group 1) for
freight, shipping and handling the Software and Documentation to
customers and (iv) exclude taxes, customs and other charges imposed
by any governmental authority and directly related to the sale of
licenses for the Software or Documentation.
c) Intertrak agrees that Group 1 shall have the right,
upon adequate prior notice to Intertrak and from time to time, to
allow Group 1 to inspect the relevant books and records of
Intertrak with respect to the calculation of Revenue and payments
to be made hereunder. Intertrak agrees that Group 1 may also
conduct a final audit of all payments due to it hereunder no later
than the end of the thirty eighth (38th) month after the date of
this Agreement.
3. Assigned Agreements and Other Obligations Assumed.
a) Intertrak shall assume all of Group 1's obligations and
liabilities on and after the date of this Agreement for the
Assigned Agreements assigned to Intertrak on such date. For any
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Assigned Agreement assigned to Intertrak after such date, Intertrak
shall assume all of Group 1's obligations and liabilities under
each such agreement when each agreement is assigned to Intertrak.
The obligations of Intertrak under the Assigned Agreements include
those set out in Exhibit 3.1, hereto.
b) Among the other provisions set out hereby for which
Intertrak agrees to indemnify and hold Group 1 harmless, Intertrak
agrees to indemnify and hold Group 1 harmless against any claim
arising out of any of the Assigned Agreements, once assigned to
Intertrak, arising out of or related to Intertrak's failure to
perform thereunder.
c) Group 1 warrants and represents to Intertrak that, to
its knowledge, for the period from November 22, 1995 through
September 2, 1997: (i) there are not now any liabilities, accrued
or accruable for federal, state, county or local income, sales,
use, excise, property, goods and services, ad valorem or other
taxes, assessments or charges arising out of or attributable to the
licensing to end users of the Software or Documentation and (ii)
there have been no stamp, sales, transfer or other taxes imposed in
respect to any of the transactions to be consummated hereunder.
Intertrak acknowledges that much of Group 1's knowledge upon which
the foregoing representations and warrantees of this Section 3(c)
are made is based on information supplied to Group 1 by Xxxxx.
d) Intertrak agrees, as a part of its acceptance of the
transfer and assignment of the Software, Documentation and
Trademark, to assume Group 1's payment obligations under Sections
2(a) and 2(b) of that certain Agreement for Purchase and Sale of
Assets by and among, inter alia, Group 1 Software, Inc., Premier
One Consultants Inc. and WorldTrak Corporation (the "1995 Sale
Agreement"). Payments to be made with respect to Sections 2(a) and
2(b) of the 1995 Sale Agreement are as follow:
(A) The Fifty Thousand Dollar ($50,000) payment
pursuant to Section 2(a)(i) was made;
(B) The One Hundred Thousand Dollar ($100,000)
payment is to be made pursuant to Section 2(a)(ii) on November 21,
1998; Intertrak agrees to make this payment timely and in full;
provided, however that Group 1 shall simultaneously make a payment
to Intertrak of One Hundred Thousand Dollars ($100,000);
(C) With respect to Section 2(b), thereof, Revenue
(as defined in 1995 Sale Agreement) as of July 31, 1997 was One
Million, Two-Hundred Fifty-Three Thousand, Eight Hundred Dollars
($1,253,800). No payment accrues under Section 2(b) until Revenue
(under the 1995 Sale Agreement) exceeds $2.5 million, whereupon One
Percent of Revenue (under the 1995 Sale Agreement) accrues on the
next $1 million of Revenue (under the 1995 Sale Agreement), and so
on as set out the 1995 Sale Agreement.
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Sections 2(a) and (b) of the 1995 Sale Agreement are hereby
incorporated herein by reference.
4. Condition of the Software.
a) Intertrak acknowledges that, based on Xxxxx'x
involvement with the Software prior to and after November 22, 1995,
it is fully aware of the right of Group 1 to develop the Software,
Documentation and the Trademark, as well as the development and
operating condition of the Software. Intertrak, accordingly,
consummates the transactions set out in this Agreement taking the
Software, Documentation and Trademark on an AS IS and WHERE IS
basis as of September 2, 1997, and relying on no representations,
warranties, covenants, agreements or assurances from Group 1 in any
of these regards except those expressly set out in this Agreement.
b) Group 1 represents and warrants to Intertrak that, to
the best knowledge of its officers after due inquiry, Group 1 has
not received any notice of any violations of, and is not violating,
the rights of others in any trademark, trade name, service xxxx,
copyright, patent, license, trade secret, know-how (application
thereto, as applicable) or other intangible asset arising out of
its development, marketing, licensing or sale of the Software,
Documentation or Trademark.
c) Group 1 agrees that the rights granted by Group 1 to
Intertrak herein include Intertrak's right, without interference of
Group 1, to use the whole of the Software, any part of parts
thereof, or none of the work, as Intertrak sees fit; to alter the
Software, add to it, combine it with any other work or works, at
its sole discretion.
5. Office Facilities.
a) Group 1 agrees to provide to Intertrak from September 2,
1997 through July 31, 1999 (i) office space for ten people, and
reasonable access to conference room, training room, kitchen and
reception area; (ii) "Office Equipment" consisting of
desks/cubicles, chairs, lamps, telephones, and other small office
equipment for up to ten (10) persons, as such equipment was found
in Group 1's Minneapolis, Minnesota office on August 29, 1997;
(iii) desktop computers and production equipment identified on
Exhibit 5.1; (iv) Office Facilities consisting of access to the
telephone equipment and the equipment to be shared by Intertrak and
Group 1 identified on Exhibit 5.2; and (v) for use solely in
support of the Assigned Agreements, local and long distance
telephone service, copier, telefax,and overnight delivery services
(FedEx/UPS). Access to and use of the above items shall remain
available to Intertrak only so long as the foregoing is generally
available to Group 1's operations in Group 1's current (8/31/97)
Minneapolis, Minnesota office location, and only through July 31,
1999. Intertrak agrees to promptly
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reimburse Group 1 for any use of Office Facilities, other than as
authorized herein or approved by Group 1.
b) If Intertrak wishes access to additional Office
Equipment or Office Facilities, Group 1 and Intertrak shall
negotiate in good faith to determine whether such additional Office
Equipment and Office Facilities are available and if so at what, if
any, additional cost to Intertrak.
c) Intertrak acknowledges that Group 1 shall not be
required, pursuant to its obligations under this Section 5, to
purchase any additional facilities in order to meet these
obligations.
d) Intertrak's resort to the space rented to Group 1 in
its Minneapolis, Minnesota office is subject to Group 1 obtaining
consent from its landlord to effect such sublease. Group 1 shall
use its best efforts to obtain such consent. Group 1 shall not
charge Intertrak any additional fee in connection with Group 1's
obtaining such consent.
6. Various Group 1 and Intertrak Performances.
a) Group 1 shall complete the professional services
identified in Exhibit 6.1 (with respect to the Assigned Agreements)
and develop version 3.4 of the Software as provided therein using
the services of the persons identified in Exhibit 6.1, hereto. The
employment with Group 1 of each person identified in Exhibit 6.1
shall terminate (the "Individual's End Date") on the date set out
therein. Until the Individual's End Date, Group 1 shall assume
responsibility for such person's salary and fringe benefits;
Intertrak may, however, assume daily supervision of such person's
prior to the Individual's End Date, subject to Intertrak complying
with all applicable laws, rules and regulations. Upon each
Individual's End Date, Intertrak may employ any or all such persons
and after October 16, 1997 Intertrak shall assume all obligations
related to version 3.4 of the Software, including, but not limited
to, all additional development efforts which may be necessary to
complete such new version of the Software, testing and installation
of the Software and developing Software documentation.
a-1) Group 1 shall pay AMS for the activity described in
Exhibit 6.2, hereto.
b) Intertrak agrees that it shall perform the support and
maintenance work (primarily - bug fixing, answering customer calls
and the other programming services offered as annual contracted for
maintenance to customers under the Assigned Agreements) at: Eight
Thousand Dollars per month ($8,000/month) for months 1-6 from the
date of this Agreement (with the first payment due to Intertrak on
September 15, 1997 for Four Thousand Dollars, ($4,000.00)
representing a pro rata monthly payment, with each subsequent
payment to be made on the first day of each
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month thereafter, commencing October 1, 1997); Six Thousand, Five
Hundred Dollars per month ($6,500/month) for months 7-18 and Three
Thousand, Five Hundred Dollars per month ($3,500/per month) for
months 19 through July 31, 1999; provided, however, that Intertrak
may cease to perform the aforesaid support and Group 1 shall no
longer be obligated to pay for the aforesaid support if all of the
customers under the Assigned Agreements have terminated maintenance
under the Assigned Agreements.
c) Intertrak agrees to complete the Campaign Management
Module to Group 1's reasonable satisfaction, for the total price of
Sixty Thousand Dollars ($60,000). Thirty Thousand Dollars
($30,000) thereof shall be payable upon delivery of the Module to
Group 1 and Thirty Thousand Dollars ($30,000) upon acceptance by
Group 1, which acceptance shall not be unreasonably conditioned,
delayed or denied. Group 1's reasonable satisfaction shall be
based solely upon completion of such work in accordance with the
specification set out in Exhibit 6.3, hereto, as such
specifications may be modified upon the agreement of the parties.
Group 1 acknowledges and agrees that it shall not claim title to
the Campaign Management Module created by Intertrak and resulting
from such efforts; provided, however, that Intertrak hereby agrees
to grant to Group 1, immediately upon the rendering to physical
form of the Campaign Management Module, a perpetual, fully paid,
worldwide, full copyright license to the Campaign Management Module
and all portions of it so that Group 1 may, inter alia, make an
unlimited number of copies, enhance, modify, display, alter and
distribute for consideration from others or otherwise, the Campaign
Management Module and all portions of it, for any uses or purposes
that Group 1 may wish, all without further consent of or payment to
Intertrak.
d) Intertrak agrees to make an announcement upon Group 1's
reasonable request and containing text acceptable to Group 1 that
informs all customers under the Assigned Agreements that Intertrak
has assumed the support and maintenance obligations for such
products as described herein.
e) Any agreement entered into by Intertrak and any of the
customers under the Assigned Agreements for the delivery of a new
release of the Software and/or for which Intertrak charges the
customer an additional license or maintenance/support fee shall
expressly replace any preexisting Group 1 maintenance or support
agreement and relieve Group 1 of any further maintenance or support
obligations to that customer.
7. Employment Matters; Non-Compete Covenants. Group 1,
Intertrak and Xxxxx agree as follows.
a) Xxxxx'x employment with Group 1 Software is hereby
terminated. Xxxxx, Intertrak and Group 1 hereby enter into a
consulting agreement in the form set forth in Exhibit 7.1 which
assures Group 1 that Xxxxx will provide his services to Intertrak
or Group 1 with respect to the Assigned Agreements. Xxxxx'x
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obligations under that certain Covenant Not to Compete with Group 1
Software, dated November 22, 1995, are hereby deemed terminated.
b) Group 1 shall reimburse Intertrak for salary not to
exceed Twenty Five Hundred Dollars per month ($2,500/month),
through November 21, 1998, to be paid to one (1) additional full
time Intertrak professional. (The initial payment shall be pro
rated, with additional payments to be made on the first day of each
month). This employee's responsibility shall consist primarily of
providing support and maintenance (primarily first level) to all of
the customers under the Assigned Agreements.
c) So long as Xxxxx and Intertrak fully perform their
obligations to maintain and support the Software and the customers
under the Assigned Agreements, Group 1 covenants and agree that for
thirty-six (36) months following the date of this Agreement it
shall refrain from engaging directly or indirectly in any of the
following activities in the U.S. or in Canada: (i) competing with
Intertrak in the development, sale, licensing or other distribution
of "sales and marketing control" software and (ii) hiring or
engaging or soliciting for employment or engagement as a contractor
any of Intertrak's employees or contractors.
d) Group 1 shall make the following services of Xxxxx
Xxxxx available to Intertrak and compensate him for those services.
He shall, at Group 1's direction, be available to Intertrak for up
to twenty (20) hours per month upon seventy-two (72) hours prior
notice to assist Intertrak in the support and maintenance of
customers on versions 3.0 - 3.4 of the Software under the Assigned
Agreements.
e) So long as Group 1 fully performs its obligations set
forth in the Agreement, Xxxxx and Intertrak each covenants and
agrees that for thirty-six (36) months following the date of this
Agreement each shall refrain from engaging directly or indirectly
in any of the following activities in the U.S. or Canada or any
other country in which Group 1 is conducting sales efforts: (i)
competing with any Group 1 product or any related service
(excluding the "sales and marketing control" software) and (ii)
hiring or engaging or soliciting for employment or engagement as a
contractor any of Group 1's employees or contractors except those
persons who were in the WorldTrak Division as of July 31, 1997.
f) Group 1 shall pay to Xxxxx within seven (7) days from
the date of this Agreement all accrued, but un-used vacation earned
as a Group 1 employee, as of the date of this Agreement.
8. Intertrak Corporate Ownership. Xxxxx and Intertrak
hereby warrant and represent to Group 1 that Xxxxx is the sole
holder of all of the issued and outstanding shares of voting
securities of Intertrak, or in the alternative, Xxxxx currently
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holds all of the issued and outstanding voting securities of
Intertrak. Xxxxx and Intertrak agree that for the first thirty-six
(36) months following the date of this Agreement, Intertrak shall
maintain its charter documents and/or Xxxxx shall hold sufficient
shares of the voting securities of Intertrak so that upon written
request of Group 1 made during this 36-month period, Intertrak
and/or Xxxxx shall promptly offer to issue/sell to Group 1 Thirty
Percent (30%) of the combined total of the authorized shares of
voting securities of Intertrak. In exchange for these shares of
the voting securities of Intertrak, Group 1 shall pay Seventy-Five
Thousand Dollars ($75,000).
9. Security Interest; Sale of the Software.
a) Intertrak grants to Group 1 a first lien, security
interest in any and all of the derivative works of the Software and
the Documentation created by or on the behalf of Intertrak,
together with all customizations, supplemental works, interim
works, works in progress and all other intellectual property rights
and portions thereof, whether or not fixed in a tangible medium of
expression (including without limitation all copyrights and
applications for such, rights with respect to patents and
applications for such, and moral rights) with respect to such works
(the "New Works"). Intertrak agrees not to permit any lien or
encumbrance or other cloud on title to be filed or exist against
any of the New Works. In the event of any breach under this
Agreement or any agreement entered into with respect hereto, which
breach is not cured within the applicable cure period (if any),
Intertrak agrees that Group 1, as a secured party with respect to
the New Works, shall have and may exercise any and all rights and
remedies with respect to the New Works available to a secured party
under applicable law. Intertrak agrees to file any and all
financing statements and other documents that Group 1 reasonably
requests (provided, Group 1 pays all filing fees), to further
establish, maintain, protect or perfect the security interests
granted herein. This security interest shall terminate, and Group
1 agrees to deliver to Intertrak termination statements suitable
for filing in the appropriate jurisdiction, upon Group 1's receipt
of all payments to be made to it pursuant to Section 2, above.
Group 1 agrees to subordinate its security interest in the New
Works upon the written request of Intertrak in order for Intertrak
to obtain capital financing so long as Intertrak has paid all
amounts to Group 1 that are due and owing, and Intertrak and Xxxxx
are not in default under this Agreement or any agreement entered
into pursuant hereto, as of the date of its request to Group 1.
b) Intertrak hereby agrees that Group 1 may retain a copy
of any and all of New Works with an escrow agent reasonably
acceptable to Intertrak and Group 1, or if none can be promptly
agreed upon, in escrow at Group 1's premises. Resort to escrow
shall constitute an additional remedy to Group 1 in the event that
Group 1 seeks to enforce any of its rights or remedies as a secured
party with respect to the New Works.
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c) Intertrak may sell or transfer its title in the Software
and Documentation directly (or indirectly as for example by a sale
of all or substantially all of its assets or a controlling block of
its voting securities) in a transaction or series of transactions
only if: (i) Intertrak demonstrates to Group 1's reasonable
satisfaction that: (A) the obligations and responsibilities of
Intertrak and Xxxxx with respect to performance under the Assigned
Agreements shall be discharged in a professional and xxxxxxx like
manner and (B) all of the other obligations and liabilities of
Xxxxx and Intertrak under this Agreement shall be discharged in
full either prior to or after any proposed transfer or sale and
(ii) Intertrak shall pay to Group 1 Sixty-Five Percent (65%) of the
gross proceeds from such transaction paid or payable to Intertrak,
Xxxxx (or any affiliate of either) within the first twelve (12)
months after the date of this Agreement, Fifty Percent (50%) of
such gross proceeds with respect to the second twelve months, and
Thirty Percent (30%) of such gross proceeds with respect to the
third twelve months.
10. Finder's Fee. If Group 1 provides Intertrak with
any leads for any of Intertrak's products or services (a "Lead"),
and any Lead purchases any products or services from Intertrak,
Intertrak shall pay to Group 1 a finder's fee of fifteen percent
(15%) of all of the payments (excluding any Software license fees
for which a 30%-fee is paid to Group 1 pursuant to Section
2(a)(ii), above) made or payable to Intertrak by a Lead within the
first twelve (12) months after the initial agreement between a Lead
and Intertrak. All such fees shall be paid to Group 1 within
thirty (30) days after Intertrak has received payment from the
respective Lead.
11. New Agreements.
a) Group 1 shall inform Presbyterian Church promptly upon
the execution of this Agreement of the transfer of operations with
respect to the Software and that all fees for the Software shall be
paid to Intertrak. Group 1 will use its best efforts to assist
Intertrak in securing an agreement directly with Presbyterian
Church for the Software and related services. Fees received by
Intertrak from Presbyterian shall be included as Revenue; provided,
however that Intertrak shall pay Group 1 the full 30% of Revenue
from this contract within thirty (30) days of Intertrak's receipt
of payment. Further, Intertrak shall reimburse the Group 1
salespersons and sales management involved in such transaction as
of July 31, 1997 in accordance with their incentive compensation in
effect on July 31, 1997-.
b) Group 1 shall inform Xxxx Xxxxx, Inc. promptly upon the
execution of this Agreement of the transfer of operations with
respect to the Software. Group 1 agrees to then use its best
efforts to assist Intertrak in closing current negotiations with
Xxxx Xxxxx with respect to a prospective license agreement for the
Software and/or other agreement solely with respect to the
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Software and/or related services. Fees received by Intertrak solely
with respect to the Software shall be included as Revenue;
provided, however that Intertrak shall pay Group 1 the full 30% of
Revenue from this contract within thirty (30) days of Intertrak's
receipt of payment. Further, Intertrak shall reimburse the Group 1
salespersons and sales management involved in such transaction as
of August 25, 1997 in accordance with their incentive compensation
in effect on August 25, 1997-.
12. Taxes and Governmental Royalties Licenses and Permits
and Compliance with Laws.
a) Group 1 represents and warrants to Intertrak that it
has filed all returns required of it with respect to any
governmental entity as to licenses of the Software, the filing of
which returns or the failure to do so may affect the Software.
b) Group 1 represents and warrants to Intertrak that it
has held all licenses, certificates, permits, franchises and rights
from all appropriate federal, state, local and other public
authorities necessary for the conduct by Group 1 of its business
related to the Software.
13. Authority and Status.
a) Group 1 represents and warrants that it is a
corporation in good standing under the laws of the state of its
incorporation and it has the capacity and authority to execute and
deliver this Agreement, to perform hereunder and to consummate the
transactions contemplated hereby without the necessity of any act
or consent of any other person whomsoever. This Agreement, and
each and every other agreement, document and instrument to be
executed, delivered and performed by Group 1 in connection
herewith, constitutes or will, when executed and delivered,
constitute the valid and legally binding obligation of Group 1,
enforceable against Group 1 in accordance with their respective
terms, except as enforceability may be limited by applicable
equitable principles or judicial discretion, or by bankruptcy,
insolvency, reorganization, moratorium, or similar laws from time
to time in effect affecting the enforcement of creditors' rights
generally.
b) Intertrak represents and warrants that it is a
corporation in good standing under the laws of the state of its
incorporation and it has the capacity and authority to execute and
deliver this Agreement, to perform hereunder and to consummate the
transactions contemplated hereby without the necessity of any act
or consent of any other person whomsoever. This Agreement, and
each and every other agreement, document and instrument to be
executed, delivered and performed by Intertrak in connection
herewith, constitutes or will, when executed and delivered,
constitute the valid and legally binding obligation of Intertrak,
enforceable against Intertrak in accordance with their respective
terms, except as enforceability may be limited by
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applicable equitable principles or judicial discretion, or by
bankruptcy, insolvency, reorganization, moratorium, or similar laws
from time to time in effect affecting the enforcement of creditors'
rights generally.
14. Indemnification.
a) Intertrak and Group 1 each agrees to indemnify, defend
and hold harmless the other and their respective current and past
officers, directors, employees, agents and representatives from all
losses, damages, liabilities, costs (including reasonable
attorneys' and experts' fees and expenses) (collectively, the
"Losses") incurred by the party being indemnified (the "Indemnified
Party") from any claim by the other party hereto or any third party
arising from or related to any material breach by the respective
party hereto of this Agreement. Notwithstanding the foregoing,
Group 1 does not hereby agree to indemnify Xxxxx, as a former
employee, for any breach of his or that of Intertrak under this
Agreement.
b) The Indemnified Party shall have the right to approve
the selection of any counsel selected by the indemnifying party to
defend hereunder, which approval shall not be unreasonably
conditioned, delayed or denied. The indemnifying party shall not
enter into any settlement with respect to the matters indemnified
hereunder which may adversely affect any interest of the
Indemnified Party without first obtaining the written consent of
the Indemnified Party, which consent shall not be unreasonably
conditioned, delayed or denied. The indemnifying party agrees to
reimburse the Indemnified Party promptly for all such Losses as
they are incurred by the Indemnified Party; provided, however, that
with respect to any expenses reimbursed to the Indemnified Party in
advance of the final disposition of any such proceeding covered by
this indemnification, the Indemnified Party shall have delivered to
the indemnifying party an undertaking to repay to the indemnifying
party the amounts so advanced if it shall ultimately be determined
that the Indemnified Party is not entitled to be indemnified
hereunder.
c) If the indemnification provided for in this Section 14
from the indemnifying party is unavailable to an Indemnified Party,
in respect of any Losses referred to therein, the indemnifying
party, in lieu of indemnifying such persons, shall contribute to
the amount paid or payable by such persons as a result of such
Losses in such proportion as is appropriate to reflect the relative
fault of the indemnifying party and the Indemnified Party in
connection with the actions that resulted in such Losses, as well
as any other relative equitable considerations. The amount paid or
payable by a party as a result of the Losses shall be deemed to
include any legal or other fees or expenses reasonably incurred by
such party in connection with any investigation, lawsuit or legal
or administrative action or proceeding.
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15. Survival of Representations and Warranties.
a) All representations, warranties, agreements, covenants
and obligations made or undertaken by Group 1 in this Agreement
shall survive indefinitely its execution and shall not merge in the
performance of any obligation by any party hereto.
b) All representations, warranties, agreements,
indemnities and covenants made or undertaken by Intertrak or Xxxxx
in this Agreement shall survive indefinitely their execution and
shall not merge in the performance of any obligations by any party
hereto.
16. Payment of Fees and Expenses. Intertrak, Xxxxx and
Group 1 each agrees that regardless of whether the transactions
contemplated hereunder close, to pay its own fees and expenses,
including the fees and expenses of its respective counsel,
accountants, brokers, advisors, employees and other agents, if any,
incurred in connection with the transactions contemplated here,
unless expressly agreed to otherwise in the Agreement.
17. Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be delivered
by hand or mailed by registered or certified mail, return receipt
requested, first class postage prepaid, addressed or telefax as
follows:
a) If to Intertrak or Xxxxx:
Intertrak Corporation
0000 00xx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Xx. Xxxxx Xxxxx
Telefax: 612/_______
or
Xxxxxx X. Xxxxxxx, Esq.
Xxxxxxx & Xxxxx
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Telefax: 612/831-7358
If to Group 1:
Group 1 Software, Inc.
0000 Xxxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxxx, President
Telefax: (000) 000-0000
b) If delivered personally or by telefax, the date on
which a notice, request, instruction or document is delivered shall
be the date on which such delivery is made and, if
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delivered by mail, the date on which such notice, request,
instruction or document is received shall be the date of delivery.
c) Any party hereto may change its address specified for
notices herein by designating a new address by notice in accordance
with this Section 17.
18. Termination. This Agreement constitutes the binding
and irrevocable agreement of the parties to consummate the
transactions contemplated hereby, the consideration for which is,
inter alia, the covenants set forth herein and the expenditures and
obligations incurred and to be incurred by Intertrak, Xxxxx and
Group 1 in respect of this Agreement. This Agreement may be
terminated if any material breach has occurred hereunder, which
breach is not cured within fifteen (15) days of written notice from
the non-breaching party to the breaching party.
19. Further Assurances. Each party covenants that at no
additional expense, at any time, and from time to time, it will
execute and deliver (or cause to be so done) such additional
instruments and take such actions as may be reasonably requested by
the other parties to confirm or perfect or otherwise to carry out
the intent and purposes of this Agreement.
20. No Third Party Beneficiaries. Nothing contained herein
shall be construed to afford any rights or benefits to any person
except the parties to this Agreement. Any implication of rights
granted to any such party is hereby expressly disclaimed.
21. Miscellaneous.
a) This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, legal
representatives, executors and administrators, and permitted
successors and assigns. Except as provided herein no delegation,
transfer or assignment of any rights or obligations under this
Agreement is permitted by Intertrak or Xxxxx, and any attempted
transfer or assignment shall be void.
b) This Agreement together with the documents executed
concurrently herewith or referred to herein constitute the entire
agreement among the parties hereto with respect to the transactions
contemplated hereby and supersedes and cancels any prior agreements
representations, warranties, or communications, whether oral or
written, among the parties hereto relating to the transactions
described herein.
c) This Agreement shall be governed by and enforced in
accordance with the laws of the State of Maryland, principles of
conflicts of law notwithstanding.
d) Any failure on the part of any party hereto to comply
with any of its obligations, agreements or conditions hereunder
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15
may be waived by any other party to whom such compliance is owed. No
waiver of any provision of this Agreement shall be deemed, or shall
constitute, a waiver of any other provision, whether or not
similar, nor shall any waiver constitute a continuing waiver.
Neither this Agreement nor any provision hereof may be changed,
waived, discharged or terminated orally, but only by an agreement
in writing signed by the party against whom or which the
enforcement of such change, waiver, discharge or termination is
sought.
e) The Agreement shall be construed without reference to
any presumption or rules of construction operating against the
"draftsman" of the document, the intent of the parties being that
any such presumption or rule is inapplicable in this instance
because both parties have reviewed and negotiated this document in
the manner that each viewed as most advantageous to its own
interests.
f) All Exhibits attached hereto are incorporated herein by
reference, and all blanks in such Exhibits or the Agreement, if
any, will be filled in as required in order to consummate the
transactions contemplated herein and in accordance with this
Agreement.
g) In the event that any provision of this Agreement or
any word, phrase, clause, sentence or other portion thereof shall
be held to be unenforceable or invalid for any reason, such
provision or portion thereof shall be modified or deleted in such a
manner so as to effect the agreement of the parties under this
Agreement, as modified, to the fullest extent permitted under law.
15
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IN WITNESS WHEREOF, each party hereto has executed and
delivered, or caused this Agreement to be executed and delivered on
its behalf by its authorized representatives, effective the day and
year first above written.
Attest: Intertrak Corporation
/s/XXXXXXX XXXXX By: /s/XXXXX XXXXX
--------------------------- --------------------------
Its: CEO
-------------------------
/s/XXXXX XXXXX
Witness: -----------------------------
By: Xxxxx Xxxxx, Individually
/s/XXXXXXX XXXXX
---------------------------
Attest: Group 1 Software, Inc.
/s/XXXXX XXXXXXXX By: [SIG]
--------------------------- --------------------------
Its: Executive V.P.
-------------------------
Attest: Gruco, Inc.
[SIG]
--------------------------- By: [SIG]
Secretary --------------------------
Its: President
-------------------------
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IN WITNESS WHEREOF, the parties hereto have executed this
Covenant as of the date first written above.
INTERTRAK CORPORATION
By:
--------------------------
Title ------------------------
GROUP 1 SOFTWARE, INC.
By: --------------------------
Title ------------------------
BY:
--------------------------
Xxxxx Xxxxx, Individually
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