EXHIBIT 4.10
ASSET PURCHASE AGREEMENT
dated as of August 19, 2001
by and among
JACADA LTD.,
JACADA, INC.,
JACADA (EUROPE), LIMITED,
PROPELIS SOFTWARE, INC.,
COMPUTER NETWORK TECHNOLOGY CORPORATION
AND
CNT INTERNATIONAL LTD.
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This ASSET PURCHASE AGREEMENT dated as of August 19, 2001 is
made and entered into by and among (i) JACADA LTD., an Israeli corporation
("Parent"), (ii) the following direct wholly-owned subsidiaries of Parent:
JACADA, INC., a Delaware corporation ("Jacada-US") and JACADA (EUROPE), LIMITED,
a company organized under the laws of England ("Jacada-UK") (Jacada-US and
Jacada-UK are collectively referred to herein as the "Purchasers"), (iii)
Computer Network Technology Corporation, a Minnesota corporation ("CNT"), and
(iv) the following direct wholly-owned subsidiaries of CNT: Propelis Software,
Inc., a Minnesota corporation (f/k/a XxxxXxxxxx.xxx, Inc. and CNT Acquisition I
Corporation) ("Propelis") and CNT International Ltd., a company organized under
the laws of England and Wales ("CNTUK"), (CNT, Propelis, and CNTUK are
collectively referred to herein as the "Sellers").
RECITALS:
WHEREAS, Sellers, through their Enterprise Integration
Solutions Division ("EISD Division"), are engaged in the business of developing,
marketing, licensing and selling Products and related services for the business
process management and enterprise application integration marketplace (the
"Business"; for the avoidance of doubt, the term "Business" shall not include
the networking, managed services or SNA businesses or any other businesses of
Sellers); and
WHEREAS, Sellers desire to sell, transfer and assign to Parent
and Purchasers, and Parent and Purchasers desires to purchase and acquire from
Sellers, substantially all of the assets of Sellers relating to the operation of
the Business, and in connection therewith, Parent and Purchasers have agreed to
assume certain of the liabilities of Sellers relating to the Business, all on
the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I
SALE OF ASSETS AND CLOSING
1.01 Assets.
(a) Assets Transferred. On the terms and subject to the
conditions set forth in this Agreement, Sellers will sell, transfer, convey,
assign and deliver to Parent and Purchasers, and Parent and Purchasers will
purchase and pay for, at the Closing, free and clear of all Liens other than
Permitted Liens, all of Sellers' right, title and interest in, to and under the
assets and properties of Sellers used in connection with the Business, as the
same shall exist on the Closing Date (the "Assets") including, without
limitation, the following assets used in connection with the Business, but
specifically excluding the Excluded Assets (as such term is defined in Section
1.01(b)):
(i) Inventory. All inventories of Products contained on
compact disks and related documentation (the "Inventory");
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(ii) Tangible Personal Property. All equipment, machinery,
furniture, fixtures and other tangible personal property used in
connection with the Business (including without limitation the items
listed in Section 1.01(a)(ii) of the Disclosure Schedule) ("Tangible
Personal Property");
(iii) Accounts Receivable. All trade and other accounts
receivable and all notes, bonds and other evidences of Indebtedness of
and rights to receive payments arising out of Products sold or licensed
or services rendered (including without limitation deferred maintenance
xxxxxxxx) occurring in the conduct of the Business (other than amounts
due from Gelco, which shall be excluded from the Closing Date
Statement), including any rights of Sellers with respect to any third
party collection procedures or any other Actions or Proceedings which
have been commenced in connection therewith (the "Accounts
Receivable");
(iv) Personal Property Leases. The leases of tangible
personal property described in Section 1.01(a)(iv) of the Disclosure
Schedule as to which a Seller is the lessee or sublessee, together with
any options to purchase the underlying property (the leases and
subleases described above, the "Personal Property Leases");
(v) Contracts. All Contracts (other than the Real
Property Leases and the Personal Property Leases) to which a Seller is
a party and which are utilized in the conduct of the Business including
without limitation those described in Section 1.01(a)(v) of the
Disclosure Schedule (the "Assumed Agreements");
(vi) Prepaid Expenses; Employee Stock Option Receivables.
All prepaid payroll related to UK Employees through August 31, 2001;
all other prepaid expenses relating to the Business; and all employee
stock option receivables; including but not limited to the items listed
in Section 1.01(a)(vi) of the Disclosure Schedule (the "Prepaid
Expenses");
(vii) Intellectual Property. All Intellectual Property used
in the conduct of the Business (including Sellers' goodwill therein),
including without limitation all rights in the name "Propelis
Software," "Enterprise/Access," Propelis EAI, Propelis BPm, and
Enterprise/Access 2000 (the "Intellectual Property Assets");
(viii) Licenses. All Licenses (including applications
therefor) utilized in the conduct of the Business;
(ix) Books and Records. All Books and Records used or held
for use in the conduct of the Business or otherwise relating to the
Assets, other than the minute books, stock transfer books and corporate
seal of Sellers (the "Business Books and Records");
(x) Claims. All rights of any Seller under any claims,
warranties, guaranties, refunds, causes of action, rights of recovery,
rights of set-off and rights of recoupment of
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every kind and nature relating to the Business, other than those
relating to the Excluded Assets or the Retained Liabilities; and
(xi) Other Assets and Properties. All other assets and
properties of Sellers used or held for use in connection with the
Business, excluding the Excluded Assets.
(b) Excluded Assets. Notwithstanding anything in this
Agreement to the contrary, the following assets and properties of
Sellers (the "Excluded Assets") shall be excluded from and shall not
constitute Assets:
(i) Cash. All operating cash, commercial paper,
certificates of deposit and other bank deposits, treasury bills and
other cash equivalents;
(ii) Real Property Leases. The leases of real property
described in Section 1.01(b)(ii) of the Disclosure Schedule as to which
a Seller is the lessee or sublessee, together with any options to
purchase the underlying property and leasehold improvements thereon
(the "Real Property Leases");
(iii) Personal Property Leases. The leases of tangible
personal property described in Section 1.01(b)(iii) of the Disclosure
Schedule as to which a Seller is the lessee or sublessee, together with
any options to purchase the underlying property;
(iv) Contracts. All Contracts described in Section
1.01(b)(iv) of the Disclosure Schedule;
(v) Corporate Records. The minute books, stock transfer
books and corporate seal of Sellers;
(vi) Benefit Plans. All Benefit Plans of Sellers including
all assets thereof;
(vii) Insurance Policies. All casualty, liability or other
policies of insurance maintained by or on behalf of the Sellers and the
rights thereunder and all rights under self insurance programs;
(viii) This Agreement. Sellers' rights under this Agreement;
(ix) Personal Property. All equipment, machinery,
furniture, fixtures and other tangible personal property of any Seller
(a) not used in connection with the Business or (b) described in
Section 1.01(b)(ix) of the Disclosure Schedule; and
(x) Shared Facilities and Assets. The Shared Facilities
and Assets.
(xi) Other. As set forth in Section 1.01(b)(xi) of the
Disclosure Schedule
(c) Allocation of Assets. The Assets shall be allocated
among Parent and the Purchasers in accordance with the terms of this
Section 1.01(c). Parent shall acquire the Intellectual Property Assets.
Jacada-UK shall acquire all Assets that are located in the
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United Kingdom or that have a legal situs or presence in the United
Kingdom (other than Intellectual Property Assets) (the "UK Assets").
Jacada-US shall acquire all remaining Assets (other than Intellectual
Property Assets), including without limitation all Assets that are
located in the United States or that have a legal situs or presence in
the United States (the "US Assets"). Each of Parent and the Purchasers
agree that it shall bear a portion of the Purchase Price proportionate
to the value of the Assets acquired by it.
1.02 Liabilities.
(a) Assumed Liabilities. In connection with the sale,
transfer, conveyance, assignment and delivery of the Assets pursuant to
this Agreement, on the terms and subject to the conditions set forth in
this Agreement, at the Closing, Parent and Purchasers will assume and
agree to pay, perform and discharge when due the following obligations
of Sellers arising in connection with the operation of the Business, as
the same shall exist on the Closing Date (the "Assumed Liabilities"),
and no others:
(i) Personal Property Lease Obligations. All obligations
of Sellers under the Personal Property Leases, so long as such
obligations have been incurred in the ordinary course of business
consistent with past practices (but specifically excluding liabilities
for breaches thereof occurring on or prior to the Closing Date, whether
occurring as a result of the transactions contemplated by this
Agreement or otherwise); and
(ii) Obligations under Assumed Agreements. All obligations
of Sellers under the Assumed Agreements, so long as such obligations
have been incurred in the ordinary course of business consistent with
past practices (but specifically excluding liabilities for breaches
thereof occurring on or prior to the Closing Date, whether occurring as
a result of the transactions contemplated by this Agreement or
otherwise).
(iii) Accounts Payable. All trade and other accounts
payable of Sellers related only to the Business incurred in the
ordinary course of business consistent with past practices on or prior
to the Closing Date ("Accounts Payable").
(iv) Other. As set forth in Section 1.02(a)(iv) of the
Disclosure Schedule.
(b) Retained Liabilities. Except for the Assumed
Liabilities, Parent and Purchasers shall not assume by virtue of this Agreement
or the transactions contemplated hereby, and shall have no liability for, any
Liabilities of Sellers (including, without limitation, those related to the
Business or any Benefit Plans) of any kind, character or description whatsoever,
whether accrued, absolute or contingent, whether known or unknown, whether
disclosed or undisclosed and regardless of when asserted (the "Retained
Liabilities"). Sellers shall discharge in a timely manner or shall make adequate
provision for all of the Retained Liabilities.
(c) Allocation of Liabilities. The Assumed Liabilities
shall be allocated among Parent and Purchasers in a manner consistent with the
allocation of the Assets pursuant to Section 1.01(c).
1.03 Purchase Price; Allocation of Purchase Price.
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(a) Purchase Price. The Purchase Price, as adjusted
pursuant to Section 1.06, for the Assets (the "Purchase Price") will consist of
(i) SIX MILLION DOLLARS ($6,000,000) in cash; and (ii) a warrant (the "Warrant")
to purchase THREE HUNDRED FIFTY THOUSAND (350,000) unregistered ordinary shares,
NIS $0.01 par value (the "Underlying Shares"), of Parent, which Warrant shall be
substantially in the form of the warrant attached hereto as Exhibit 1.03(a).
Parent and Purchasers shall be jointly and severally liable for payment of the
Purchase Price.
(b) Escrowed Amount. As security for the indemnification
obligations of the Sellers pursuant to Article IX, the "Escrowed Amount" (as
defined below) will be delivered by Parent and Purchasers to the Escrow Agent at
Closing, to be held, administered and disbursed by the Escrow Agent pursuant to
the terms of an Escrow Agreement substantially in the form of Exhibit 1.03(b)
attached hereto (the "Escrow Agreement"). As used herein, the term "Escrowed
Amount" means $600,000.00, subject to increase or decrease post-Closing by
deposit or withdrawal, as applicable, to reflect ten percent (10%) of the cash
portion of the Purchase Price, as adjusted pursuant to Section 1.06.
(c) Allocation of Purchase Price. Upon completion of the
Purchase Price adjustment pursuant to Section 1.06, Parent and Purchasers and
Sellers shall negotiate in good faith and determine the allocation of the
consideration paid by Parent and Purchasers for the Assets. Each party hereto
agrees (i) that any such allocation shall be consistent with the requirements of
Section 1060 of the Code and the regulations thereunder, (ii) to complete
jointly and to file separately Form 8594 with its Federal income Tax Return
consistent with such allocation for the tax year in which the Closing Date
occurs and (iii) that no party will take a position on any income, transfer or
gains Tax Return, before any Governmental or Regulatory Authority charged with
the collection of any such Tax or in any judicial proceeding, that is in any
manner inconsistent with the terms of any such allocation without the consent of
the other party.
1.04 Closing. The Closing will take place at the offices
of Xxxxx, Xxxxxxxx & Xxxxxxx, LLP in Atlanta, Georgia, at 10:00 a.m. EST, on
August 23, 2001 or on such other date and time as Parent and Purchasers and
Sellers shall mutually agree (the "Closing Date"). At the Closing, Parent and
Purchasers will (a) pay Sellers the cash portion of the Purchase Price (less the
Escrowed Amount) by wire transfer of immediately available funds to such account
as Sellers may reasonably direct by written notice delivered to Parent and
Purchasers by Sellers at least two (2) Business Days before the Closing Date and
(b) deliver the Warrant to CNT. Simultaneously, Sellers will assign and transfer
to Parent and Purchasers good and valid title in and to the Assets (free and
clear of all Liens, other than Permitted Liens) by delivery of (i) one or more
Bills of Sale in form and substance reasonably acceptable to Sellers and Parent
and Purchasers (the "Bills of Sale"), duly executed by Sellers, (ii) an
assignment of the Intellectual Property Assets and other intangible Assets in
form and substance reasonably acceptable to Sellers and Parent and Purchasers,
duly executed by Sellers (the "General Assignment"), and (iii) such other good
and sufficient instruments of conveyance, assignment and transfer, in form and
substance reasonably acceptable to Sellers and Parent and Purchasers, as shall
be effective to vest in Parent and Purchasers good title to the Assets (free and
clear of all Liens, other than Permitted Liens) (the Xxxx of Sale and the other
instruments referred to in clauses (ii) and (iii) being collectively referred to
herein as the "Assignment Instruments"), and (d) Parent and
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Purchasers will assume from Sellers the due and punctual payment, performance
and discharge of the Assumed Liabilities by delivery of one or more Assumption
Agreements in form and substance reasonably acceptable to Sellers (the
"Assumption Agreements"), duly executed by Parent and Purchasers, and such other
good and sufficient instruments of assumption, in form and substance reasonably
acceptable to Sellers, as shall be effective to cause Parent and Purchasers to
assume the Assumed Liabilities as and to the extent provided in Section 1.02(a)
(the Assumption Agreements and such other instruments being collectively
referred to herein as the "Assumption Instruments"). At the Closing, there shall
also be delivered to Sellers and Parent and Purchasers the opinions,
certificates and other contracts, documents and instruments required to be
delivered under Articles V and VI.
1.05 Prorations. Prorations relating to the Assets and the
ownership and operation of the Business will be made by the parties as of the
Closing Date, with the Sellers liable to the extent such items relate to any
time period prior to the Closing Date and Parent and Purchasers liable to the
extent such items relate to the periods beginning with and subsequent to the
Closing Date. Except as otherwise agreed by the parties, the net amount of all
such prorations will be settled and paid on the Closing Date. No prorations will
be made for accruals reflected on the Closing Date Statement.
1.06 Closing Date Balance Sheet.
(a) Within thirty (30) days following the Closing Date,
Sellers shall prepare a statement of Assets and Assumed Liabilities based on the
Closing Date balance sheet of the Sellers (the "Closing Date Statement"). Except
as provided in the following sentence, the Closing Date Statement will include
only the Assets and the Assumed Liabilities, and shall be prepared in accordance
with generally accepted accounting principles consistently applied and the
accounting practices used to prepare the Carve-Out Financial Statements
consistent with the Business Books and Records. The Closing Date Statement will
(i) also include as an Asset all outstanding obligations of customers of Sellers
to make payments to Sellers for Products delivered or services rendered relating
to the Business but with respect to which the customers have not yet been
invoiced or billed and (ii) will not include any reference to severance payments
or obligations. Parent and Purchasers acknowledge that Sellers have not
historically included a separate reserve for receivables related to the EISD
Division, and the Closing Date Statement will include a reasonable reserve for
accounts receivable, calculated in accordance with GAAP.
(b) In the event that the amount calculated by
subtracting the Assumed Liabilities from the Assets as set forth on the Closing
Date Statement (the "Adjusted Net Worth") is greater than $2,175,000.00, Parent
and Purchasers shall pay Sellers in cash the difference between the Adjusted Net
Worth and $2,175,000.00. If the Adjusted Net Worth is less than $2,175,000.00,
Sellers shall pay Parent and Purchasers in cash the difference between
$2,175,000.00 and the Adjusted Net Worth. Payment shall be made by wire transfer
within three (3) business days after the parties either agree upon the
difference or the difference is determined as set forth in Section 1.06(c).
(c) Parent and Purchasers shall have the right to review
fully all work papers relating to the Closing Date Statement in order to confirm
that such Closing Date Statement has
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been determined as provided herein. Parent and Purchasers shall complete their
review of such Closing Date Statement within thirty (30) days after such
determination and related documentation have been made available for its review.
If Parent and Purchasers believe that any adjustment should be made to such
Closing Date Statement in order for said amount to be determined in accordance
with the requirements of this Section, Parent and Purchasers shall give the
Sellers written notice of such adjustments. If the Sellers agree with the
adjustments proposed by Parent and Purchasers, the adjustments shall be made to
such Closing Date Statement. If there are proposed adjustments which are
disputed by the Sellers, then the Sellers and Parent and Purchasers shall
negotiate in good faith to resolve all disputed adjustments. If, after a period
of thirty (30) days following the date on which Parent and Purchasers gives the
Sellers written notice of any proposed adjustments, any such adjustments still
remain disputed, Parent and Purchasers and the Sellers will jointly engage
Deloitte & Touche LLP (the "Independent Accountant") to resolve any remaining
disputed adjustments in accordance with this Agreement, and the decision of such
firm shall be final, binding and nonappealable on the parties hereto and shall
be deemed a final arbitration award that is enforceable pursuant to the terms of
the Federal Arbitration Act. Payment required under Section 1.06(b) and (c)
shall be tendered within three (3) business days after the earlier of the
agreement of the parties on the amount thereof or a written notice of any
resolution of such amount has been given by the Independent Accountant to the
parties hereunder. All fees and expenses of the Independent Accountant incurred
in connection with such resolution shall be split equally between the parties.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLERS
Sellers hereby jointly and severally represent and warrant to
Parent and Purchasers as follows as of the date hereof and as of the Closing
Date, subject to the exceptions specifically disclosed in writing in the
Disclosure Schedule, the sections of which correspond to the Sections of this
Agreement:
2.01 Organization of Sellers. Each Seller is a corporation
duly organized, validly existing and in good standing under the Laws of the
jurisdiction of its organization, and has full corporate power and authority to
conduct the Business as and to the extent now conducted and to own, use and
lease its assets and properties used in the Business. Each Seller is duly
qualified, licensed or admitted to do business and is in good standing in those
jurisdictions specified in Section 2.01 of the Disclosure Schedule, which are
the only jurisdictions in which the ownership, use or leasing of its assets and
properties, or the conduct or nature of the Business, makes such qualification,
licensing or admission necessary, except for such failures to be so qualified or
licensed and in good standing as could not reasonably be expected to have a
materially adverse effect (a "Material Adverse Effect") on the Condition of the
Business.
2.02 Authority; Execution. Each Seller has full corporate
power and authority to execute and deliver this Agreement and the Operative
Agreements to which it is a party, to perform its obligations hereunder and
thereunder and to consummate the transactions contemplated hereby and thereby.
The execution and delivery by each Seller of this Agreement and the Operative
Agreements to which it is a party, and the performance by each Seller of its
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obligations hereunder and thereunder, have been duly and validly authorized by
its board of directors and its shareholders, no other corporate action on the
part of such Seller or its shareholders being necessary. This Agreement has been
duly and validly executed and delivered by each Seller and constitutes, and upon
the execution and delivery by each Seller of the Operative Agreements to which
such Seller is a party, such Operative Agreements, assuming the due
authorization, execution and delivery of this Agreement and the Operative
Agreements by Parent and Purchasers, will constitute legal, valid and binding
obligations of each Seller enforceable against such Seller in accordance with
their respective terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to
creditors rights and to general principles of equity.
2.03 Capitalization; Ownership of Subsidiaries. CNT owns
all of the issued and outstanding shares of Propelis and CNTUK. The Assets do
not include any shares of capital stock or any other ownership interest in, or
securities of, any corporation, partnership, joint venture or other legal
entity.
2.04 No Conflicts. The execution and delivery by each
Seller of this Agreement do not, and the execution and delivery by each Seller
of the Operative Agreements to which it or he is a party, the performance by
each Seller of their respective obligations under this Agreement and such
Operative Agreements and the consummation of the transactions contemplated
hereby and thereby will not:
(a) conflict with or result in a violation or breach of
any of the terms, conditions or provisions of the articles or certificate of
incorporation or bylaws of any Seller;
(b) subject to obtaining the consents, approvals and
actions, making the filings and giving the notices disclosed in Section 2.04 of
the Disclosure Schedule, conflict with or result in a material violation or
breach of any term or provision of any Law or Order applicable to any Seller or
any of the Assets; or
(c) except as disclosed in Section 2.04 of the Disclosure
Schedule, (i) conflict with or result in a material violation or breach of, (ii)
constitute (with or without notice or lapse of time or both) a default under,
(iii) require any Seller to obtain any consent, approval or action of, make any
filing with or give any notice to any Person as a result or under the terms of,
or (iv) result in the creation or imposition of any Lien upon any Seller or any
of the Assets under, any material Contract or License to which any Seller is a
party or by which any of the Assets is bound.
2.05 Governmental Approvals and Filings. Except as
disclosed in Section 2.05 of the Disclosure Schedule, no consent, approval or
action of, filing with or notice to any Governmental or Regulatory Authority on
the part of any Seller is required in connection with the execution, delivery
and performance of this Agreement or any of the Operative Agreements to which it
or he is a party or the consummation of the transactions contemplated hereby or
thereby.
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2.06 Pro Forma Financial Information. Section 2.06 of the
Disclosure Schedule sets forth true and complete copies of the pro forma
unaudited balance sheet of the Business as of April 30, 2001, and the pro forma
unaudited profit and loss statement for the Business for the fiscal year ended
January 31, 2001 and the three-month period ended April 30, 2001. Except as
disclosed in Section 2.06 of the Disclosure Schedule, all such financial
statements (a) have been prepared by Sellers on a pro forma basis to reflect the
operation of the Business as a separate operating unit, (b) fairly present in
all material respects the financial condition and results of operations of the
Business as of the respective dates thereof and for the respective periods
covered thereby, and (c) were compiled from Business Books and Records regularly
maintained by management and used to prepare the financial statements of
Sellers. The Business Books and Records fairly reflect, in all material
respects, the income, expenses, assets and liabilities of the Business and the
Business Books and Records provided a fair and accurate basis for the
preparation of the Financial Statements delivered to Parent and Purchasers in
accordance with this Section.
2.07 Absence of Changes. Except for the execution and
delivery of this Agreement and the transactions to take place pursuant hereto on
or prior to the Closing Date, since April 30, 2001 there has not been any
material adverse change, or any event or development which, individually or
together with other such events, could reasonably be expected to result in a
material adverse change, in the Condition of the Business. Without limiting the
foregoing, except as disclosed in Section 2.07 of the Disclosure Schedule, there
has not occurred, between April 30, 2001 and the date hereof, any of the
following:
(a) (i) any increase in the salary, wages or other
compensation of any Employee whose annual salary is, or after giving effect to
such change would be, $100,000 or more; (ii) any establishment or modification
of (A) targets, goals, pools or similar provisions in respect of any fiscal year
under any employment-related Contract or other compensation arrangement with or
for Employees or (B) salary ranges, increase guidelines or similar provisions in
respect of any employment-related Contract or other compensation arrangement
with or for Employees; or (iii) any adoption, entering into or becoming bound by
any Benefit Plan, employment-related Contract or collective bargaining
agreement, or amendment, modification or termination (partial or complete) of
any Benefit Plan, employment-related Contract or collective bargaining
agreement, except to the extent required by applicable Law and, in the event
compliance with legal requirements presented alternatives, only to the extent
the alternative which Sellers reasonably believed to be the least costly was
chosen;
(b) (i) incurrences by Seller of Indebtedness with
respect to the conduct of the Business in an aggregate principal amount
exceeding $25,000, or (ii) any voluntary purchase, cancellation, prepayment or
complete or partial discharge in advance of a scheduled payment date with
respect to, or waiver of any right of Seller under, any Indebtedness of or owing
to Seller with respect to the conduct of the Business;
(c) any physical damage, destruction or other casualty
loss (whether or not covered by insurance) affecting any of the plant, real or
personal property or equipment of any Seller used or held for use in the conduct
of the Business in an aggregate amount exceeding $25,000;
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(d) any material change in (i) any pricing, investment,
accounting, financial reporting, inventory, credit, allowance or Tax practice or
policy of the Business or (ii) any method of calculating any bad debt,
contingency or other reserve of the Business for accounting, financial reporting
or Tax purposes;
(e) any write-off or write-down of or any determination
to write-off or write-down any of the Assets;
(f) (i) any acquisition or disposition of any material
amount of Assets, other than Inventory in the ordinary course of business
consistent with past practice; or (ii) any creation or incurrence of a Lien,
other than a Permitted Lien, on any Assets;
(g) any entering into, amendment, modification,
termination (partial or complete) or granting of a waiver under or giving any
consent with respect to (i) any Contract which is required (or had it been in
effect on the date hereof would have been required) to be disclosed in the
Disclosure Schedule pursuant to Section 2.18 or (ii) any License;
(h) capital expenditures or commitments for additions to
property, plant or equipment used or held for use in the conduct of the Business
constituting capital assets in an aggregate amount exceeding $25,000;
(i) any transaction with any officer, director, Affiliate
or Associate of any Seller or any Associate of any such officer, director or
Affiliate (i) outside the ordinary course of business consistent with past
practice or (ii) other than on an arm's-length basis;
(j) any disposal of or lapse of any rights to the use of
any Intellectual Property, or disclosure to any Person of any trade secret,
formula, process or know-how not theretofore a matter of public knowledge
without obtaining an appropriate confidentiality agreement from such person;
(k) any sale, assignment, transfer or license of any
Intellectual Property, except for nonexclusive licenses granted to customers in
the ordinary course of business;
(l) any entering into of a Contract to do or engage in
any of the foregoing after the date hereof; or
(m) any other transaction involving or development
affecting the Business or the Assets outside the ordinary course of business
consistent with past practice.
2.08 No Undisclosed Liabilities. Except as reflected or
reserved against in the April 30, 2001 balance sheet of the Business or as
disclosed in Section 2.08 of the Disclosure Schedule, there are no Liabilities
against, relating to or affecting the Business or any of the Assets, other than
Liabilities incurred in the ordinary course of business consistent with past
practice which in the aggregate are not material to the Condition of the
Business.
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2.09 Taxes.
(a) Each Seller has timely paid all Taxes, and all
interest and penalties due thereon and payable by it for the Pre-Closing Tax
Period which will have been required to be paid on or prior to the Closing Date,
the non-payment of which would result in a Lien on any Asset, would otherwise
adversely affect the Business or would result in Parent or Purchasers becoming
liable or responsible therefor.
(b) Each Seller has established, in accordance with
generally accepted accounting principles applied on a basis consistent with that
of preceding periods, adequate reserves for the payment of, and will timely pay
all Tax liabilities, assessments, interest and penalties which arise from or
with respect to the Assets or the operation of the Business and are incurred in
or attributable to the Pre-Closing Tax Period, the non-payment of which would
result in a Lien on any Asset, would otherwise adversely affect the Business or
would result in Parent or Purchasers becoming liable therefor.
(c) Section 2.09(c) of the Disclosure Schedule contains
an entity-by-entity complete and accurate list of (i) all jurisdictions to which
any material amount of Tax has been paid or is properly payable by or with
respect to any Seller or its Affiliates with respect to the Business or the
Assets during the preceding three years, and (ii) all Tax Returns that have been
filed or are properly required to be filed in any such jurisdiction and on which
material amounts of Taxes are required to be shown by or with respect to any
Seller or its Affiliates with respect to the Business or the Assets during the
preceding three years (or with respect to which the failure to file could have a
Material Adverse Effect on the Condition of the Business).
(d) Except as set forth in Section 2.09(d) of the Disclosure
Schedule: (i) each Seller and its Affiliates has filed on a timely basis (or has
received a valid extension to file) with the appropriate Tax Authorities all Tax
Returns (applicable to the Business or the Assets) on which material amounts of
Taxes are required to be shown by the applicable laws of any jurisdiction (or
the failure of which to file could have a Material Adverse Effect on the
Condition of the Business); and (ii) all such returns are true, correct, and
complete in all material respects.
2.10 Legal Proceedings. Except as disclosed in Section
2.10 of the Disclosure Schedule (with paragraph references corresponding to
those set forth below):
(a) there are no Actions or Proceedings pending or, to
the Knowledge of Sellers, threatened against, relating to or affecting any
Seller with respect to the Business or any of the Assets which (i) could
reasonably be expected to result in the issuance of an Order restraining,
enjoining or otherwise prohibiting or making illegal the consummation of any of
the transactions contemplated by this Agreement or any of the Operative
Agreements or otherwise result in a material diminution of the benefits
contemplated by this Agreement or any of the Operative Agreements to Parent or
Purchasers, or (ii) if determined adversely to such Seller, could reasonably be
expected to result in (A) any injunction or other equitable relief that would
interfere in any material respect with the Business or (B) Losses by Sellers,
individually or in the aggregate with Losses in respect of other such Actions or
Proceedings, exceeding $25,000; and
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(b) there are no Orders outstanding against any Seller
with respect to the Business or the Assets.
2.11 Compliance With Laws and Orders. Except as disclosed
in Section 2.11 of the Disclosure Schedule, Sellers are not, nor have they at
any time within the last three (3) years been, nor have they received any notice
that they are or have at any time within the last three (3) years been, in
violation of or in default under any Law or Order applicable to the Business or
the Assets in a manner that could reasonably be expected to have a Material
Adverse Effect on the Condition of the Business.
2.12 Employee Benefits; ERISA. Sellers do not have any
liability under, nor are they subject to any Lien, restriction or other adverse
right relating to, any "employee benefit plan" (as defined in Section 3(3) of
ERISA), including any multiemployer plans (as defined in Section 4001(a)(3) of
ERISA) or any other bonus, deferred compensation, severance pay, pension,
profit-sharing, retirement, insurance stock purchase, stock option or other
fringe benefit plan, arrangement or practice maintained, or contributed to, by
any Seller for the benefit of any current or former employees, officers or
directors (collectively, the "Benefit Plans") (i) that would affect in any
manner whatsoever Parent or either Purchaser's right, title and interest in, or
right to use or enjoy (free and clear of any Lien, other than Permitted Liens,
or restriction), the Assets or (ii) that would result in the assumption by or
imposition on Parent or either Purchaser of any liability other than liabilities
expressly included as Assumed Liabilities or as contemplated by Section 9.06(e).
2.13 Property.
(a) Sellers do not own any real property which is used in
connection with the Business. Section 2.13(a) of the Disclosure Schedule lists
all leases of real property used in connection with the Business to which any
Seller is a party.
(b) Seller is in possession of and has good title to, or
has valid leasehold interests in or valid rights under Contract to use, all the
Tangible Personal Property, which includes all tangible personal property
reflected on the balance sheet included in the Annual Financial Statements and
tangible personal property acquired since the Annual Financial Statement Date
other than tangible personal property disposed of since such date in the
ordinary course of business consistent with past practice. All the Tangible
Personal Property is free and clear of all Liens, other than Permitted Liens and
Liens disclosed in Section 2.13(b) of the Disclosure Schedule, and is in good
working order and condition, ordinary wear and tear excepted, and its use
complies with all applicable Laws in all material respects.
2.14 Orders; Commitments; Warranties and Returns.
Section 2.14 of the Disclosure Schedule sets forth Sellers' warranties currently
made with respect to the Business, and current policies with respect to returns
of products. Except as set forth in Section 2.14 of the Disclosure Schedule,
Sellers have experienced no actual or, to their Knowledge, threatened claims
against them for warranty costs exceeding $25,000 in the aggregate. As used
above, the term "warranty cost" shall mean customer refund and other costs and
expenses associated with
13
correcting, returning or replacing defective or allegedly defective products or
services, whether such costs and expenses arise out of claims sounding in
warranty, contract, tort or otherwise.
2.15 Intellectual Property
(a) Section 2.15(a) of the Disclosure Schedule sets forth
a list of all patents, patent applications, copyright registrations (and
applications therefor), and trademark and trade name registrations (and
applications therefor) and trade names owned by any Seller and used in the
Business. Each of the federal and state registrations relating to the foregoing
Assets is valid and in full force and effect. Section 2.15(a) of the Disclosure
Schedule also sets forth a list of any unregistered trademarks, trade names,
service marks, brand names, logos or other identifiers for the Products or
otherwise used in the Business.
(b) Section 2.15(b) of the Disclosure Schedule sets forth
a list of all patents, software and other technology used in the Business and
for which the Sellers do not own all right, title and interest (collectively,
the "Third Party Technology"), and all license agreements or other contracts
pursuant to which the Sellers have the right to use the Third Party Technology
(the "Third Party Licenses"). Sellers have the lawful right to use (free of any
material restriction not expressly set forth in the Third Party Licenses) all
Third Party Technology that is incorporated or used in the Business, and no
royalties or other compensation is payable for the right to use such Third Party
Technology other than as expressly set forth in the Third Party Licenses.
Sellers have not received notice that any party to any such license intends to
cancel, terminate or refuse to renew (if renewable) such license or to exercise
or decline to exercise any option or right thereunder, and Sellers have used the
Third Party Technology in accordance with all of the terms of the Third Party
Licenses. Sellers are not in breach of any Third Party Licenses.
(c) Section 2.15(c) of the Disclosure Schedule sets forth
a list of all software products and tools developed, produced, marketed or sold
by Sellers in the operation of the Business as of the Closing, or since January
1, 1998 (the "Products").
(d) All the Intellectual Property Assets are owned by
Sellers free and clear of all Liens, other than Permitted Liens. Except as set
forth on Section 2.15(d) of the Disclosure Schedule and other than nonexclusive
licenses granted in the ordinary course of business, Sellers have not granted to
any third party any rights or permissions to use any of the Intellectual
Property Assets. Sellers have not received any notice or claim (whether written,
oral or otherwise) challenging Sellers' ownership or rights in the Intellectual
Property Assets or claiming that any other person or entity has any legal or
beneficial ownership with respect thereto or challenging the validity or
enforceability of the Intellectual Property Assets.
(e) Except as set forth in Section 2.15(e) of the
Disclosure Schedule, Sellers have obtained an enforceable written assignment of
all right, title and interest in and to each item of the Intellectual Property
Assets owned by Sellers from each person or entity participating in the
discovery, development or creation of such item and, except with respect to
employees, have provided to Parent and Purchasers true and correct copies of
each such assignment. Except as otherwise provided in Section 2.15(e) of the
Disclosure Schedule, Sellers have no obligation to compensate, or to obtain the
consent of, any third party for the use of any item of the Intellectual Property
Assets. Since January 1, 1998, all employees, independent contractors, or other
persons
14
who have had access to or participated in the development in any of the
Intellectual Property Assets owned by Sellers have signed appropriate
confidentiality and non-disclosure agreements and, in the case of independent
contractors, appropriate work for hire agreements and assignments, sufficient to
protect Sellers' ownership rights in the Intellectual Property Assets and the
unauthorized use or disclosure of same. All registrations and applications to
register the Intellectual Property Assets in each of the countries in which any
of the same is registered are valid and subsisting in all respects and have been
properly maintained in all material respects. No party has asserted any claim to
any moral rights with respect to the Intellectual Property Assets owned by
Sellers.
(f) Section 2.15(f) of the Disclosure Schedule sets forth
a complete list (but, in the case of nonexclusive licenses granted by Sellers in
the ordinary course of Business, only since January 1, 1998) of all software
licenses (other than evaluation licenses) for the Products, which list
identifies for each such software license (i) the end user, (ii) the Products
licensed, (iii) any license fees payable after the date of this Agreement, (iv)
any continuing obligations of Sellers under such software license, and (v) the
term of the software license. Except for software licenses and as otherwise
provided on Section 2.15(f) of the Disclosure Schedule, Sellers have not granted
any license or other right to use, in any manner, any item of Intellectual
Property Assets, whether or not requiring the payment of royalties, and no third
party has any right to use any of the Intellectual Property Assets owned by
Sellers. Except as set forth on Section 2.15(f) of the Disclosure Schedule,
Sellers have not licensed, leased, sold or otherwise transferred or disclosed
the source code for any of the Products to any person or entity other than to
Sellers' employees and independent contractors pursuant to an agreement with
such employees and independent contractors protecting the intellectual property
rights therein and the nondisclosure thereof.
(g) Neither Sellers' operation of the Business prior to
Closing nor the Intellectual Property Assets infringe, violate or interfere with
or constitute a misappropriation of any right, title or interest (including,
without limitation, any patent, copyright, trademark or trade secret right) held
by any other person or entity. Sellers have not received any notice or claim
(whether written, oral or otherwise) regarding any infringement,
misappropriation, misuse, abuse or other interference with any third party
intellectual property or proprietary rights (including, without limitation,
infringement of any patent, copyright, trademark or trade secret right of any
third party) by either Sellers' operation of the Business or the Intellectual
Property Assets.
(h) There is neither pending nor to the Knowledge of
Sellers threatened any suit, action, claim, arbitration, grievance, litigation,
administrative or legal or other proceeding, or investigation, against Sellers
or its licensors contesting the validity of, or Sellers' right to use, any of
the Intellectual Property Assets.
(i) To the Sellers' Knowledge, no other person or entity
is infringing or misappropriating the Intellectual Property Assets.
(j) Except as disclosed on Section 2.15(j) to the
Disclosure Schedule, (i) Sellers have not disclosed any source code to any
person or entity (excluding employees, independent contractors and former
employees and independent contractors); (ii) Sellers have at all times
maintained and diligently enforced commercially reasonable procedures to protect
all
15
confidential information of the Business; and (iii) Sellers have not deposited
any source code into any source code escrows or similar arrangements. If, as
disclosed in Section 2.15(j) of the Disclosure Schedule, Sellers have deposited
any source code into source code escrows or similar arrangements, to Sellers'
Knowledge, no event has occurred that has or could reasonably form the basis for
a release of such source code from such escrows or arrangements.
(k) Except as set forth on Section 2.15(k) of the
Disclosure Schedule, each Product functions substantially in accordance with the
published documentation and specifications therefor. All of the Products are
available in "general release form" (as opposed to only "alpha," "beta" or
"early release" forms) and there exists user and technical documentation that
describes the functionality provided by such Products, which user and technical
documentation is substantially complete and accurate.
(l) Section 2.15(l) of the Disclosure Schedule sets forth
a complete and accurate list of all agreements pursuant to which Sellers are
obligated to provide support or maintenance for the Products, as well as all
other agreements related to or concerning the Products not otherwise listed on a
Schedule which contain any obligations of Sellers which have not yet been
performed or fulfilled.
(m) To Sellers' Knowledge, the cost of Sellers'
outstanding obligations (i) to perform or reperform for its customers or end
users any installation, implementation, warranty, maintenance, modification,
upgrade, enhancement, consulting, or other services in connection with any
Products, and (ii) to deliver, license, or develop Products to or for its
customers, does not exceed the aggregate payments expected to be received from
those customers or end users attributable to each such obligation.
(n) Section 2.15(n) of the Disclosure Schedule sets forth
a list of all Internet domain names used by Sellers in the Business
(collectively, the "Domain Names"). Sellers have, and upon the Closing Parent
will have, a valid registration and all material rights (free of any material
restriction) in and to the Domain Names, including, without limitation, all
rights necessary to continue to conduct the Business as it is currently
conducted.
(o) The Intellectual Property Assets contain all of the
Intellectual Property used or held for use in, and necessary for the conduct of,
the Business as conducted by Sellers as of the Closing Date.
(p) Web Integrator is a predecessor Product to Propelis
EAI that was discontinued on December 31, 2000. Sellers have no remaining
obligations under any Contract relating to Web Integrator.
2.16 Accounts Receivable. All Accounts Receivable
represent amounts due for services performed or sales or licenses actually made
in the ordinary course of business and properly reflect the amounts due. The bad
debt reserves and allowances reflected in the Closing Date Statement have been
calculated in accordance with GAAP. To Seller's Knowledge, all Accounts
Receivable are expected to be collectible by the Purchasers in the ordinary
course of business consistent with past practice in 90 days or less.
16
2.17 [Intentionally Omitted.]
2.18 Contracts.
(a) Section 2.18(a) of the Disclosure Schedule (with
paragraph references corresponding to those set forth below) contains a true and
complete list of each of the following Contracts or other arrangements related
to the Business (true and complete copies or, if none, reasonably complete and
accurate written descriptions of which, together with all amendments and
supplements thereto and all waivers of any terms thereof, have been delivered to
Parent and Purchasers prior to the execution of this Agreement) to which any
Seller is a party and by which any of the Assets is bound:
(i) (A) all Contracts (excluding Benefit Plans) providing
for a commitment of employment or consultation services for a specified
or unspecified term to, or otherwise relating to employment or the
termination of employment of, any Employee, the name, position and rate
of compensation of each Employee party to such a Contract and the
expiration date of each such Contract; and (B) any written or unwritten
representations, commitments, promises, communications or courses of
conduct (excluding Benefit Plans and any such Contracts referred to in
clause (A)) involving an obligation of any Seller to make payments in
any year, other than with respect to salary or incentive compensation
payments in the ordinary course of business, to any Employee;
(ii) all Contracts with any Person containing any
provision or covenant prohibiting or limiting the ability of any Seller
to engage in any business activity or compete with any Person in
connection with the Business or prohibiting or limiting the ability of
any Person to compete with Sellers in connection with the Business;
(iii) all partnership, joint venture, shareholders' or
other similar Contracts with any Person in connection with the
Business;
(iv) all Contracts with licensors, licensees,
distributors, dealers, manufacturer's representatives, sales agencies
or franchises with whom any Seller deals in connection with the
Business;
(v) all Contracts to which any Seller is a party or by
which any Seller is bound that relate to the Intellectual
Property Assets;
(vi) all Contracts between or among a Seller, on the one
hand, and any officer, director, Affiliate of Associate of any Seller
or any Associate of any such officer, director or Affiliate, on the
other hand;
(vii) all collective bargaining or similar labor Contracts;
(viii) all Contracts relating to Indebtedness of any Seller;
(ix) all Contracts relating to (A) the future disposition
or acquisition of any Assets, other than dispositions or acquisitions
of Inventory in the ordinary course of
17
business consistent with past practice, and (B) any merger or other
business combination relating to the Business;
(x) all Contracts containing development obligations of
any Seller that have not been completed; and
(xi) all other Contracts with respect to the Business that
(A) involve the payment or potential payment, pursuant to the terms of
any such Contract, by or to any Seller of more than $25,000 annually
and (B) cannot be terminated within thirty (30) days after giving
notice of termination without resulting in any material cost or penalty
to such Seller.
(b) Each Contract required to be disclosed in Section
2.18(a) of the Disclosure Schedule is in full force and effect and constitutes a
legal, valid and binding agreement, enforceable in accordance with its terms, of
each party thereto; and except as disclosed in Section 2.18(b) of the Disclosure
Schedule, neither Sellers nor, to the Knowledge of Sellers, any other party to
such Contract is, or has received notice that it is, in violation or breach of
or default under any such Contract (or with notice or lapse of time or both,
would be in violation or breach of or default under any such Contract) in any
respect.
2.19 Licenses. Section 2.19 of the Disclosure Schedule
contains a true and complete list of all material Licenses used or held for use
in the Business (and all pending applications for any such Licenses), setting
forth the grantor, the grantee, the function and the expiration and renewal date
of each. Prior to the execution of this Agreement, Sellers have delivered or
made available to Parent and Purchasers true and complete copies of all such
Licenses. Except as disclosed in Section 2.19 of the Disclosure Schedule:
(a) Sellers own or validly hold all Licenses that are
material, individually or in the aggregate, to the Business;
(b) each License is valid, binding and in full force and
effect;
(c) Sellers are not, nor has they received any notice that
they are, in default (or with the giving of notice or lapse of time or both,
would be in default) under any License; and
(d) As of the Closing, all such Licenses will be validly
assigned to Purchasers.
2.20 Affiliate Transactions. Except as disclosed in
Section 2.20 of the Disclosure Schedule, (a) no officer, director, Affiliate or
Associate of any Seller or any Associate of any such officer, director or
Affiliate provides or causes to be provided any assets, services or facilities
used or held for use in connection with the Business, and (b) the Business does
not provide or cause to be provided any assets, services or facilities to any
such officer, director, Affiliate or Associate that, in either such case, would
be required to be disclosed under Item 404 of Regulation S-K under the
Securities Act. Each of the transactions listed in Section 2.20 of the
Disclosure Schedule is on terms that are on an arm's-length basis.
2.21 Employees; Labor Relations.
18
(a) Section 2.21(a) of the Disclosure Schedule contains a
list of the name of each Employee at the date hereof, together with such
Employee's position or function, annual base salary or wages and any incentive
or bonus arrangement with respect to such Employee in effect on such date. Each
Employee has executed a nondisclosure agreement in the form provided to Parent
and Purchasers. To Sellers' Knowledge, no Employee is in violation of any
agreement relating to the relationship of such Employee with Sellers.
(b) Except as disclosed in Section 2.21(b) of the
Disclosure Schedule, (i) no Employee is presently a member of a collective
bargaining unit and, to the Knowledge of Sellers, there are no threatened or
contemplated attempts to organize for collective bargaining purposes any of the
Employees, and (ii) no unfair labor practice complaint or sex, age, race or
other discrimination claim has been brought since October 31, 1997 against
Sellers with respect to the conduct of the Business before the National Labor
Relations Board, the Equal Employment Opportunity Commission or any other
Governmental or Regulatory Authority. Sellers are in compliance with all
applicable Laws relating to the employment of labor, including, without
limitation those relating to wages, hours and collective bargaining with respect
to the Employees.
2.22 Substantial Customers and Suppliers. Section 2.22 of
the Disclosure Schedule lists the twenty (20) largest customers of the Business,
on the basis of revenues for the most recently-completed fiscal year. Section
2.22 of the Disclosure Schedule lists the ten (10) largest suppliers of the
Business, on the basis of cost of goods or services purchased for the most
recently-completed fiscal year. Except as disclosed in Section 2.22 of the
Disclosure Schedule, no such customer or supplier has ceased or materially
reduced its purchases from, use of the services of, sales to or provision of
services to the Business since April 30, 2001, or to the Knowledge of Sellers,
has threatened to cease or materially reduce such purchases, use, sales or
provision of services after the date hereof. Except as disclosed in Section 2.22
of the Disclosure Schedule, to the Knowledge of Sellers, no such customer or
supplier is threatened with bankruptcy or insolvency.
2.23 [Intentionally Omitted.]
2.24 Entire Business. The sale of the Assets by Seller to
Parent and Purchasers pursuant to this Agreement will effectively convey to
Parent and Purchasers the entire Business and all of the tangible and intangible
assets and property used by Sellers (whether owned, leased or held under license
by Seller, by any of Seller's Affiliates or Associates or by others) in
connection with the conduct of the Business as heretofore conducted by Sellers
(except for the Excluded Assets). Except for the Shared Facilities and Assets,
there are no shared facilities or services which are used in connection with the
Business and any other business or other operations of Sellers or any of
Sellers' Affiliates or Associates.
2.25 Disclosure. No representation or warranty contained
in this Agreement, and no statement contained in the Disclosure Schedule
(including without limitation the Financial Statements) contains any untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements herein or therein, in the light of the
circumstances under which they were made, not misleading.
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2.26 Accredited Investor; Acquisition for Investment. CNT
is an "accredited investor" as defined in Rule 501 of Regulation D under the
Securities Act. CNT will acquire the Warrant (and, upon exercise thereof, the
Underlying Shares) for its own account for the purpose of investment and not
with a view to or for sale in connection with any distribution thereof, and CNT
has no present intention or plan to effect any distribution of the Warrant (or,
upon exercise thereof, the Underlying Shares).
2.27 Brokers. Except as disclosed in Section 2.27 of the
Disclosure Schedule, all negotiations relative to this Agreement and the
transactions contemplated hereby have been carried out by Sellers directly with
Parent and Purchasers without the intervention of any Person on behalf of
Sellers in a manner as to give rise to any valid claim by any Person against
Parent or either Purchaser for a finder's fee, brokerage commission or similar
payment.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PARENT AND PURCHASERS
Parent and Purchasers, jointly and severally, hereby represent and
warrant to Sellers as follows:
3.01 Organization, Standing and Power. Parent is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Israel. Each Purchaser is a corporation duly organized, validly
existing and in good standing under the Laws of the jurisdiction of its
organization. Parent and Purchasers have the full corporate power and authority
to conduct their respective businesses as and to the extent now conducted and to
own, use and lease their respective assets and properties. Parent and Purchaser
are duly qualified, licensed or admitted to do business and are in good standing
in each jurisdiction where the ownership, use or leasing of their respective
assets and properties, or the conduct or the nature of their business makes such
qualification, licensing or admission necessary, except for such failures to be
so duly qualified or licensed and in good standing that could not reasonably be
expected to have a materially adverse effect on the financial condition of
Parent and Purchasers taken as a whole (a "Parent Material Adverse Effect").
3.02 Authority. The execution and delivery by Parent and
Purchasers of this Agreement and the Operative Agreements to which they are a
party, and the performance by Parent and Purchasers of their obligations
hereunder and thereunder, have been duly and validly authorized by the Board of
Directors of Parent and Purchasers, respectively, no other corporate action on
the part of Parent or Purchasers being necessary. This Agreement has been duly
and validly executed and delivered by Parent and Purchasers and, assuming the
due authorization, execution and delivery of this Agreement and the Operative
Agreements by Sellers, constitutes, and upon the execution and delivery by
Parent and Purchasers of the Operative Agreements to which they are a party,
such Operative Agreements will constitute, legal, valid and binding obligations
of Parent and Purchasers enforceable against Parent and Purchasers in accordance
with their respective terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to creditors rights and to general principles of equity.
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3.03 No Conflicts. The execution and delivery by Parent
and Purchasers of this Agreement do not, and the execution and delivery by
Parent and Purchasers of the Operative Agreements to which they are a party, the
performance by Parent and Purchaser of their obligations under this Agreement
and such Operative Agreements and the consummation of the transactions
contemplated hereby and thereby will not: (a) conflict with or result in a
violation or breach of any of the terms, conditions or provisions of the
articles or certificate of incorporation or by-laws of Parent or Purchasers,
respectively; (b) conflict with or result in a material violation or breach of
any term or provision of any Law or Order applicable to Parent, Purchasers or
any of their assets and properties; or (c) (i) conflict with or result in a
violation or breach of, (ii) constitute (with or without notice or lapse of time
or both) a default under, or (iii) require Parent or Purchasers to obtain any
consent, approval or action of, make any filing with or give any notice to any
Person as a result or under the terms of any Contract or License to which Parent
or Purchasers are a party or by which any of their assets and properties is
bound.
3.04 Governmental Approvals and Filings. Except as
required under federal and state securities laws and except for the Israeli
Approvals, no consent, approval or action of, filing with or notice to any
Governmental or Regulatory Authority on the part of Parent or Purchasers is
required in connection with the execution, delivery and performance of this
Agreement or the Operative Agreements to which they are a party or the
consummation of the transactions contemplated hereby or thereby.
3.05 Legal Proceedings. There are no Actions or
Proceedings pending or, to the Knowledge of Parent or Purchasers, threatened
against, relating to or affecting Parent or Purchasers or any of their
respective assets and properties which could reasonably be expected to result in
the issuance of an Order restraining, enjoining or otherwise prohibiting or
making illegal the consummation of any of the transactions contemplated by this
Agreement or any of the Operative Agreements. Except as set forth in the SEC
Documents (as defined below), there are no suits, actions or legal,
administrative, arbitration or other proceedings or governmental investigations
against Parent or Purchasers pending or, to Parent's Knowledge, threatened,
which if determined adversely to Parent or Purchasers, could be expected to
result in a Parent Material Adverse Effect.
3.06 Capitalization. As of December 31, 2000, the
authorized capital stock of Parent consisted of 30,000,000 Ordinary Shares of
which 18,428,531 shares were issued and outstanding, all of which are validly
issued, fully paid and non-assessable.
3.07 SEC Documents. Parent has furnished or made available
to Sellers a true and complete copy of (a) its Annual Reports on Form 20-F for
the fiscal years ended December 31, 2000 and 1999, and (b) all other filings
(other than preliminary registration and proxy statements) between December 31,
1999 and the date hereof (collectively, the "SEC Documents"), which Parent filed
under the federal securities laws with the Securities and Exchange Commission
("SEC"). As of their respective filing dates, the SEC Documents complied in all
material respects with the requirements of the Exchange Act, and none of the SEC
Documents contained any untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements made therein, in light of the
21
circumstances under which they were made, not misleading, except to the extent
corrected by a subsequently filed document with the SEC.
3.08 Brokers. All negotiations relative to this Agreement
and the transaction contemplated hereby have been carried out by Parent and
Purchasers directly with Sellers without the intervention of any Person on
behalf of Parent and Purchasers in a manner as to give rise to any valid claim
by any Person against Sellers for a finder's fee, brokerage commission or
similar payment.
ARTICLE IV
COVENANTS BETWEEN SIGNING AND CLOSING
4.01 Access. During the period commencing on the date of
this Agreement and continuing through the Closing Date, Sellers, upon reasonable
prior notice from Parent and Purchasers to Sellers, will (a) afford to Parent
and Purchasers and their Representatives, at all reasonable times during normal
business hours, full and complete access to Sellers' personnel, professional
advisors, properties, contracts, books and records, and other documents and data
and (b) furnish Parent and Purchasers and their Representatives with copies of
all such contracts, books and records, and other existing documents and data as
Parent and Purchasers may reasonably request, all of which shall be done under
the supervision of such Representatives of Sellers as may be designated by
Sellers from time to time.
4.02 Operation of the Business of Sellers. Between the
date of this Agreement and the Closing Date, unless otherwise consented to in
writing by Parent and Purchasers, which consent shall not be unreasonably
withheld, delayed or conditioned, Sellers will:
(a) except as otherwise allowed or required pursuant to
the terms of this Agreement, conduct the Business in the ordinary course in a
manner consistent with past practice;
(b) use commercially reasonable, good faith efforts to
(i) preserve intact the current business organization of Sellers relating to the
Business, (ii) keep available the services of the current officers, employees
and agents of Sellers related to the Business, and (iii) maintain the relations
and goodwill with their suppliers, customers, landlords, trade creditors,
employees, agents, and others having business relationships with Sellers
relating to the Business;
(c) confer with Parent and Purchasers concerning business
or operational matters relating to the Business of a significant nature;
(d) use commercially reasonable, good faith efforts to
maintain all of the Assets in their current condition, ordinary wear and tear
excepted; and
(e) maintain the Business Books and Records in the usual,
regular and ordinary manner, on a basis consistent with prior years.
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4.03 Negative Covenants. Except as otherwise expressly
permitted by this Agreement, between the date of this Agreement and the Closing
Date, Sellers will not, without the prior written consent of Parent and
Purchasers which consent shall not be unreasonably withheld, delayed or
conditioned, take any action, or fail to take any action within their reasonable
control, as a result of which any of the changes or events listed in Section
2.07 would occur. In addition, without the prior written consent of Parent and
Purchasers (which consent shall not be unreasonably withheld, delayed or
conditioned), Sellers will not:
(a) settle any pending Actions or Proceedings or obtain
any releases of threatened Actions or Proceedings if (i) such settlement or
release would impose restrictions on Sellers' ability to conduct the Business or
may adversely affect Sellers other than by reason of Sellers' payment of monies
thereunder or (ii) the amounts payable by Sellers pursuant to such settlement or
release would exceed Twenty Five Thousand Dollars ($25,000.00) and such
settlement liability is to be assumed by Parent and Purchasers hereunder;
(b) invoice or xxxx any customer for licensee fees,
support or maintenance fees or any other fees owed by the customer to the
Sellers;
(c) materially accelerate or delay collection of any
notes or accounts receivable in advance of or beyond their regular due dates or
the dates when the same would have been collected in the ordinary course of
business consistent with past practice;
(d) materially accelerate or delay payment of any trade
or other accounts payable in advance of or beyond their regular payment dates or
the dates when the same would have been paid in the ordinary course of business
consistent with past practice; or
(e) take any action, or fail to take any action within
any Seller's reasonable control, which would result in any of the
representations and warranties set forth in Article II not being true and
correct on and as of the Closing Date with the same force and effect as if such
representations and warranties had been made on and as of the Closing Date.
4.04 No Negotiation. Until such time, if any, as this
Agreement is terminated pursuant to Article XI, Sellers will not, nor will any
Seller cause or permit any of their respective Representatives to, directly or
indirectly, solicit, initiate, or encourage any inquiries or proposals from,
discuss or negotiate with, or provide any nonpublic information to, any Person
(other than Parent and Purchasers and their Representatives) relating to any
transaction involving the sale of the Business or any material portion of the
Assets (an "Acquisition Transaction"). Sellers covenant that from the date
hereof through the Closing Date (or the termination of this Agreement), Sellers
will not, directly or indirectly, enter into or authorize, or permit any
Representative to enter into, any negotiation, letter of intent, commitment,
agreement, understanding, or agreement in principle with any third Person for an
Acquisition Transaction. Sellers covenant and agree to inform Parent and
Purchasers in writing by facsimile within twenty-four (24) hours following the
receipt (from the date hereof through the Closing Date or the termination of
this Agreement) by any of them or their Representatives of any inquiry,
proposal, offer or bid (including the terms thereof and the identity of the
Person making such inquiry, proposal, offer or bid) in respect of any
Acquisition Transaction.
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4.05 Shareholder Approval. CNT will cause the transactions
hereunder to be approved by Propelis and CNTUK.
4.06 Supplementation and Correction of Information.
Between the date of this Agreement and the Closing Date, Sellers will use
reasonable best efforts to promptly correct and supplement the information set
forth on the Disclosure Schedule delivered by Sellers pursuant to this Agreement
in order to cause such Disclosure Schedule to remain correct and complete in all
respects. Sellers' delivery to Parent and Purchasers of any corrections or
supplements will, without further notice or action on the part of Sellers or
Parent and Purchasers, immediately and automatically constitute an amendment to
the Disclosure Schedule to which such corrections and supplements relate;
provided, however, that solely for purposes of determining whether the condition
precedent pursuant to Section 5.01 has been satisfied, or whether Parent and
Purchasers have the right to terminate this Agreement pursuant to Sections
11.01(b) or (d), any such amendment to the Disclosure Schedule will be
disregarded.
4.07 Reasonable Efforts; Further Assurances; Cooperation.
Subject to the other provisions of this Agreement, the parties hereto shall each
use their reasonable, good faith efforts to perform their obligations herein and
to take, or cause to be taken or do, or cause to be done, all things necessary,
proper or advisable under applicable law to satisfy all conditions to the
obligations of the parties under this Agreement and to cause the transactions
contemplated herein to be effected in accordance with the terms hereof and shall
cooperate fully with each other and their respective Representatives in
connection with any steps required to be taken as a part of their respective
obligations under this Agreement.
4.08 Public Announcements. Neither party hereto will issue
any press release or make any other public announcement relating to the
transactions contemplated by this Agreement without the prior consent of the
other party hereto, except that a party may make any disclosure required to be
made under applicable law or stock exchange rule if such party determines in
good faith that it is necessary to do so and, if practicable, gives prior notice
to the other party.
4.09 No Discussions with Employees. Each Seller covenants
and agrees that, during the period commencing on the date hereof and continuing
through the Closing Date, it will not offer post-Closing employment on any terms
(whether part-time or full-time, as an employee, independent contractor or
otherwise) to, or enter into any discussions concerning the same with, any
Person who is an Employee as of the date hereof, other than Employees with
respect to whom Parent and Purchasers have indicated to Seller in writing that
they do not intend to offer employment.
4.10 CNT Undertaking. CNT agrees to execute and deliver to
Parent an undertaking, in form and substance reasonably acceptable to CNT, as
required by the provisions of the Israeli Research and Development Law in
connection with the issuance of the Warrant by Parent.
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ARTICLE V
CONDITIONS TO OBLIGATIONS OF PURCHASER AND PARENT
The obligations of Parent and Purchasers hereunder to purchase the Assets and to
assume and to pay, perform and discharge the Assumed Liabilities and for Parent
to issue the Warrant are subject to the fulfillment, at or before the Closing,
of each of the following conditions (all or any of which may be waived in whole
or in part by Parent and Purchasers in their sole discretion):
5.01 Representations and Warranties. Each of the
representations and warranties made by Sellers in this Agreement shall be true
and correct when made and, except to the extent such representations and
warranties speak as of an earlier date, shall be true and correct in all
material respects on and as of the Closing Date, as though made on that date
(except that any representations and warranties qualified as to materiality
shall be true and correct in all respects).
5.02 Performance. Sellers shall have performed and
complied with, in all material respects, each agreement, covenant and obligation
required by this Agreement to be so performed or complied with by Sellers at or
before the Closing.
5.03 Closing Certificates. CNT shall have delivered to
Parent and Purchasers: (a) a certificate, dated the Closing Date and executed by
an authorized officer of CNT, in form and substance reasonably satisfactory to
Parent and Purchasers, certifying that the conditions in Sections 5.01, 5.02 and
5.04 have been fulfilled; and (b) a certificate, dated the Closing Date and
executed by the Secretary of Propelis and CNTUK, in form and substance
reasonably satisfactory to Parent and Purchasers, as to the authenticity of the
actions of the Board of Directors and shareholders authorizing the transactions
contemplated herein and in the Operative Agreements. Certified copies of each of
Propelis and CNTUK's certificate or articles of incorporation and bylaws (or
other organizational documents) shall be attached to the secretary's
certificate.
5.04 Orders and Laws. There shall not be in effect on the
Closing Date any Order or Law restraining, enjoining or otherwise prohibiting or
making illegal the consummation of any of the transactions contemplated by this
Agreement or any of the Operative Agreements.
5.05 Regulatory Consents and Approvals. All consents,
approvals and actions of, filings with and notices to any Governmental or
Regulatory Authority necessary to permit Parent and Purchasers and Sellers to
perform their obligations under this Agreement and the Operative Agreements and
to consummate the transactions contemplated hereby and thereby shall have been
duly obtained, made or given, and all terminations or expirations of waiting
periods imposed by any Governmental or Regulatory Authority necessary for the
consummation of the transactions contemplated by this Agreement and the
Operative Agreements, shall have occurred. Such consents shall include, without
limitation, the consents of the Israeli Office of the Chief Scientist, the
Israeli Investment Center of the Ministry of Industry and Trade and the Tel Aviv
Stock Exchange relating to the issuance of the Warrant (the "Israeli
Approvals").
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5.06 Third Party Consents; Estoppel Certificates. All
consents (or in lieu thereof waivers) set forth on Section 5.06 of the
Disclosure Schedule shall have been obtained; and Parent and Purchasers shall
have received an estoppel certificate executed by IntelliFrame Corporation,
substantially in the form of the certificate attached hereto as Exhibit 5.06.
5.07 Shareholder Approval. The shareholders of Propelis
and CNTUK shall have approved the Acquisition by written consent in accordance
with applicable Laws and their respective Articles of Incorporation and Bylaws.
5.08 Opinion of Counsel. Parent and Purchasers shall have
received the opinion of Xxxxxxx, Street and Deinard, Professional Association,
counsel to Sellers, dated the Closing Date, substantially in the form and to the
effect of Exhibit 5.08 hereto.
5.09 Deliveries. Sellers shall have delivered to Parent
and Purchasers the General Assignment and the other Assignment Instruments.
5.10 Employees. The Key Employees and at least 90% of all
other Employees that are offered employment with Purchasers shall have accepted
such offer of employment, and shall have executed and delivered to Purchasers
their standard form of confidentiality agreement. 5.11 Escrow Agreement. Sellers
and Escrow Agent shall have executed and delivered to Parent and Purchasers the
Escrow Agreement.
5.12 Due Diligence. Parent and Purchasers shall be
satisfied in all respects with the results of their due diligence investigation
of the Assets and the Condition of the Business.
5.13 Proceedings. All proceedings to be taken on the part
of Sellers in connection with the transactions contemplated by this Agreement
and all documents incident thereto shall be reasonably satisfactory in form and
substance to Parent and Purchasers, and Parent and Purchasers shall have
received copies of all such documents and other evidences as Parent and
Purchasers may reasonably request in order to establish the consummation of such
transactions and the taking of all proceedings in connection therewith.
5.14 No Material Adverse Change. Since the date of this
Agreement through the Closing Date, no event shall have occurred that has had or
could reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect on the Condition of the Business.
5.15 Transition Services. CNT shall have executed and
delivered to Parent and Purchasers the Transition Services Agreement attached
hereto as Exhibit 5.15.
5.16 Value Added Tax. The parties shall have mutually
agreed upon their respective rights and obligations relating to any value added
tax payable in connection with the transfer of the Assets pursuant to the Laws
of the United Kingdom.
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ARTICLE VI
CONDITIONS TO OBLIGATIONS OF SELLERS
The obligations of Sellers hereunder to sell the Assets are subject to
the fulfillment, at or before the Closing, of each of the following conditions
(all or any of which may be waived in whole or in part by Sellers in their sole
discretion):
6.01 Representations and Warranties. Each of the
representations and warranties made by Parent and Purchasers in this Agreement
shall be true and correct when made and, except to the extent such
representations and warranties speak as of an earlier date, shall be true and
correct in all material respects on and as of the Closing Date, as though made
on that date (except that any representations and warranties qualified as to
materiality shall be true and correct in all respects).
6.02 Performance. Purchasers and Parent shall have
performed and complied with, in all material respects, each agreement, covenant
and obligation required by this Agreement to be so performed or complied with by
Purchasers and Parent at or before the Closing, including without limitation the
payment of the cash portion of the Purchase Price (less the Escrowed Amount) and
the delivery of the Warrant to the Sellers.
6.03 Officers' Certificate; Secretary's Certificate.
Parent and Purchasers shall have delivered to Sellers: (a) a certificate, dated
the Closing Date and executed by an authorized officer of Parent and Purchasers,
in form and substance reasonably satisfactory to Sellers, certifying that the
conditions in Sections 6.01 and 6.02 have been fulfilled; and (b) a certificate,
dated the Closing Date and executed by the Secretary of Parent and Purchasers,
in form and substance reasonably satisfactory to Sellers, as to the authenticity
of the actions of the Board of Directors authorizing the transactions
contemplated herein and in the Operative Agreements. Certified copies of Parent
and Purchasers' certificate or articles of incorporation and bylaws (or other
organizational documents) shall be attached to such secretary's certificate.
6.04 Orders and Laws. There shall not be in effect on the
Closing Date any Order or Law that became effective after the date of this
Agreement restraining, enjoining or otherwise prohibiting or making illegal the
consummation of any of the transactions contemplated by this Agreement or any of
the Operative Agreements.
6.05 Regulatory Consents and Approvals. All consents,
approvals and actions of, filings with and notices to any Governmental or
Regulatory Authority necessary to permit Sellers and Parent and Purchasers to
perform their obligations under this Agreement and the Operative Agreements and
to consummate the transactions contemplated hereby and thereby shall have been
duly obtained, made or given, and all terminations or expirations of waiting
periods imposed by any Governmental or Regulatory Authority necessary for the
consummation of the transactions contemplated by this Agreement and the
Operative Agreements shall have occurred. Such consents shall include, without
limitation, the Israeli Approvals.
6.06 Opinions of Counsel. Sellers shall have received the
opinions of (i) Xxxxx, Xxxxxxxx & Xxxxxxx, LLP, dated the Closing Date,
substantially in the form and to the effect of
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Exhibit 6.06 hereto, and (ii) Meitar, Liquornik, Geva & Co., dated the Closing
Date, in form and substance reasonably acceptable to Sellers.
6.07 Deliveries. Parent and Purchasers shall have
delivered to Sellers the Assumption Agreement and the other Assumption
Instruments.
6.08 Proceedings. All proceedings to be taken on the part
of Parent and Purchasers in connection with the transactions contemplated by
this Agreement and all documents incident thereto shall be reasonably
satisfactory in form and substance to Sellers, and Sellers shall have received
copies of all such documents and other evidences as Sellers may reasonably
request in order to establish the consummation of such transactions and the
taking of all proceedings in connection therewith.
6.09 No Material Adverse Change. Since the date of this
Agreement through the Closing Date, no event shall have occurred that has had or
could reasonably be expected to have, individually or in the aggregate, a Parent
Material Adverse Effect. Changes in the trading prices of Parent ordinary shares
shall not constitute a Parent Material Adverse Effect.
6.10 Value Added Tax. The parties shall have mutually
agreed upon their respective rights and obligations relating to any value
added tax payable in connection with the transfer of the Assets pursuant
to the Laws of the United Kingdom.
ARTICLE VII
TRANSFER OF WARRANT
7.01 Restrictions on Transfer. CNT agrees and acknowledges
that it will not, directly or indirectly, offer, sell, assign, pledge, encumber
or otherwise transfer the Warrant or solicit any offers to purchase or otherwise
acquire or make a pledge of the Warrant, except to a wholly-owned subsidiary or
in connection with a sale of substantially all of CNT's assets, whether by
transfer, consolidation, merger or otherwise.
ARTICLE VIII
SURVIVAL OF REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS
8.01 Survival of Representations, Warranties, Covenants
and Agreements. Notwithstanding any right of Parent and Purchasers (whether or
not exercised) to investigate the Business or any right of any party (whether or
not exercised) to investigate the accuracy of the representations and warranties
of the other party contained in this Agreement, Purchasers and Parent have the
right to rely fully upon the representations and warranties of Sellers contained
in this Agreement. The representations and warranties of the parties contained
in this Agreement will survive the Closing (a) for the applicable statute of
limitations, with respect to the representations and warranties contained in
Sections 2.01, 2.02, 2.03, 2.04(a) and (b), 2.05, 2.09, 3.01, 3.02, 3.03(a) and
(b) and 3.04 and (b) until the date which is twelve (12) months following the
Closing Date in the case of all other representations and warranties, except
that any representation or warranty that would otherwise terminate will continue
to survive if a Claim Notice or Indemnity Notice (as applicable) shall have been
timely given under Article IX on or
28
prior to such termination date, until the related claim for indemnification has
been satisfied or otherwise resolved as provided in Article IX and in the Escrow
Agreement. The covenants and agreements of Sellers and the other parties
contained in this Agreement will survive the Closing until all obligations with
respect thereto have been performed or shall have been terminated in accordance
with their terms.
ARTICLE IX
INDEMNIFICATION; POST-CLOSING OBLIGATIONS
9.01 Indemnification.
(a) Subject to the other Sections of this Article IX,
Sellers shall jointly and severally indemnify the Purchaser Indemnified Parties
in respect of, and hold each of them harmless from and against, any and all
Losses suffered, incurred or sustained by any of them or to which any of them
becomes subject, resulting from, arising out of or relating to (i) any
misrepresentation or breach of warranty on the part of any Seller contained in
this Agreement (determined in all cases as if the terms "material" or
"materially" were not included therein); (ii) any nonfulfillment of or failure
to perform any covenant or agreement on the part of any Seller contained in this
Agreement or (iii) any failure to timely pay, perform and discharge the Retained
Liabilities or any Loss suffered by Parent or Purchasers from the operation of
the business prior to the Closing Date (other than Losses relating to Assumed
Liabilities). For the avoidance of doubt, any indemnification claims related to
misrepresentation or breach of warranty shall be made pursuant to subsection (i)
above.
(b) Subject to the other Sections of this Article IX,
Parent and Purchasers shall jointly and severally indemnify the Seller
Indemnified Parties in respect of, and hold each of them harmless from and
against, any and all Losses suffered, incurred or sustained by any of them or to
which any of them becomes subject, resulting from, arising out of or relating to
(i) any misrepresentation or breach of warranty on the part of Parent or
Purchasers contained in this Agreement (determined in all cases as if the terms
"material" or "materially" were not included therein); (ii) any nonfulfillment
of or failure to perform any covenant or agreement on the part of Parent or
Purchasers contained in this Agreement; (iii) any failure by Parent or
Purchasers (as applicable) to comply with the terms and conditions of the
webMethods License or the webMethods Option; (iv) any failure to timely pay,
perform and discharge the Assumed Liabilities or any Loss suffered by Sellers
from the operation of the Business after the Closing Date or (v) any allegation
of discriminatory hiring practices of Employees by Purchasers, made by any
Employee that does not receive an offer of employment from Purchasers or any
Seller. For the avoidance of doubt, any indemnification claims related to
misrepresentation or breach of warranty shall be made pursuant to subsection (i)
above.
9.02 Method of Asserting Claims. All claims for
indemnification by any Indemnified Party under Section 9.01 will be asserted and
resolved as follows:
(a) In the event any claim or demand in respect of which
an Indemnified Party might seek indemnity under Section 9.01 is asserted against
or sought to be collected from such Indemnified Party by a Person other than a
Purchaser Indemnified Party or Seller Indemnified
29
Party (a "Third Party Claim"), the Indemnified Party shall deliver a Claim
Notice with reasonable promptness to the Escrow Agent and the Indemnifying
Party. If the Indemnified Party fails to provide the Claim Notice with
reasonable promptness after the Indemnified Party receives notice of such Third
Party Claim, the Indemnifying Party will not be obligated to indemnify the
Indemnified Party with respect to such Third Party Claim, but only to the extent
that the Indemnifying Party's ability to defend has been irreparably prejudiced
by such failure of the Indemnified Party. The Indemnifying Party will notify the
Escrow Agent and the Indemnified Party as soon as practicable within the Dispute
Period whether the Indemnifying Party disputes its liability to the Indemnified
Party under Section 9.02 and whether the Indemnifying Party desires, at its sole
cost and expense, to defend the Indemnified Party against such Third Party
Claim.
(i) If the Indemnifying Party notifies the Escrow Agent
and the Indemnified Party within the Dispute Period that the
Indemnifying Party desires to defend the Indemnified Party with respect
to the Third Party Claim pursuant to this Section 9.02(a), then the
Indemnifying Party will have the right to defend, with counsel
reasonably satisfactory to the Indemnified Party, at the sole cost and
expense of the Indemnifying Party, such Third Party Claim by all
appropriate proceedings, which proceedings will be reasonably,
vigorously and diligently prosecuted by the Indemnifying Party to a
final conclusion or will be settled at the discretion of the
Indemnifying Party (but only with the consent of the Indemnified Party
in the case of any settlement that provides for any relief other than
the payment of monetary damages or that provides for the payment of
monetary damages as to which the Indemnified Party will not be
indemnified in full by reason of Section 9.03). The Indemnifying Party
will have full control of such defense and proceedings, including any
compromise or settlement thereof; provided, however, that the
Indemnified Party may, at the sole cost and expense of the Indemnified
Party, at any time subsequent to the delivery of a Claim Notice to the
Indemnified Party and prior to the Indemnifying Party's delivery of the
notice referred to in the first sentence of this Section 9.02(a)(i),
file any motion, answer or other pleadings or take any other action
that the Indemnified Party reasonably believes to be necessary or
appropriate to protect its interests; and provided further, that if
requested by the Indemnifying Party, the Indemnified Party will, at the
sole cost and expense of the Indemnifying Party, provide reasonable
cooperation to the Indemnifying Party in contesting any Third Party
Claim that the Indemnifying Party elects to contest; and provided,
further, that the Indemnified Party may choose separate counsel at the
sole cost and expense of the Indemnified Party in the event that a
conflict of interest arises between the Indemnified Party and the
Indemnifying Party. The Indemnified Party may participate in, but not
control, any defense or settlement of any Third Party Claim controlled
by the Indemnifying Party pursuant to this Section 9.02(a)(i), and
except as provided in the preceding sentence, the Indemnified Party
will bear its own costs and expenses with respect to such
participation. Notwithstanding the foregoing, the Indemnified Party may
take over the control of the defense or settlement of a Third Party
Claim at any time if it irrevocably waives its right to indemnity under
Section 9.02 with respect to such Third Party Claim.
(ii) If the Indemnifying Party fails to assume the defense
of the Third Party Claim within the Dispute Period or fails to
prosecute reasonably, vigorously and diligently or settle the Third
Party Claim, then the Indemnified Party will have the right
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to defend, at the sole cost and expense of the Indemnifying Party, the
Third Party Claim by all appropriate proceedings, which proceedings
will be prosecuted by the Indemnified Party in a reasonable manner and
in good faith or will be settled at the discretion of the Indemnified
Party (with the consent of the Indemnifying Party, which consent will
not be unreasonably withheld). The Indemnified Party will have full
control of such defense and proceedings, including any compromise or
settlement thereof; provided, however, that if requested by the
Indemnified Party, the Indemnifying Party will, at the sole cost and
expense of the Indemnifying Party, provide reasonable cooperation to
the Indemnified Party and its counsel in contesting any Third Party
Claim which the Indemnified Party is contesting. Notwithstanding the
foregoing provisions of this Section 9.02(a)(ii), if the Indemnifying
Party has notified the Escrow Agent and the Indemnified Party within
the Dispute Period that the Indemnifying Party disputes its liability
hereunder to the Indemnified Party with respect to such Third Party
Claim and if such dispute is resolved in favor of the Indemnifying
Party in the manner provided in clause (iii) below, the Indemnifying
Party will not be required to bear the costs and expenses of the
Indemnified Party's defense pursuant to this Section 9.02(a)(ii) or of
the Indemnifying Party's participation therein at the Indemnified
Party's request, and the Indemnified Party will reimburse the
Indemnifying Party in full for all reasonable costs and expenses
incurred by the Indemnifying Party in connection with such litigation.
The Indemnifying Party may participate in, but not control, any defense
or settlement controlled by the Indemnified Party pursuant to this
Section 9.02(a)(ii), and the Indemnifying Party will bear its own costs
and expenses with respect to such participation.
(iii) If the Indemnifying Party notifies the Escrow Agent
and the Indemnified Party that it does not dispute its liability to
the Indemnified Party with respect to the Third Party Claim under
Section 9.02, or if the Indemnifying Party fails to deliver a notice
to the Escrow Agent and the Indemnified Party within the Dispute
Period, then the Loss in the amount specified in the Claim Notice will
be conclusively deemed a liability of the Indemnifying Party under
Section 9.02 and the Escrow Agent or the Indemnifying Party (as
applicable) shall pay the amount of such Loss to the Indemnified Party
on demand. If the Indemnifying Party has disputed its liability with
respect to such claim, the Indemnifying Party and the Indemnified
Party will proceed in good faith to negotiate a resolution of such
dispute, and if not resolved through negotiations within the
Resolution Period, such dispute shall be resolved by litigation in a
court of competent jurisdiction in accordance with Section 9.10.
(b) In the event any Indemnified Party has a claim under
Section 9.02 against any Indemnifying Party that does not involve a Third Party
Claim, the Indemnified Party shall deliver an Indemnity Notice with reasonable
promptness to the Escrow Agent and the Indemnifying Party. The failure by any
Indemnified Party to give the Indemnity Notice shall not impair such party's
rights hereunder except to the extent that an Indemnifying Party demonstrates
that it has been irreparably prejudiced thereby. If the Indemnifying Party
notifies the Escrow Agent and the Indemnified Party that it does not dispute the
claim described in such Indemnity Notice, or if the Indemnifying Party fails to
deliver a notice to the Escrow Agent and the Indemnified Party within the
Dispute Period, then the Loss in the amount specified in the Indemnity Notice
will be conclusively deemed a liability of the Indemnifying Party under
31
Section 9.02 and the Escrow Agent or the Indemnifying Party (as applicable)
shall pay the amount of such Loss to the Indemnified Party on demand. If the
Indemnifying Party has timely disputed its liability with respect to such claim,
the Indemnifying Party and the Indemnified Party will proceed in good faith to
negotiate a resolution of such dispute, and if not resolved through negotiations
within the Resolution Period, such dispute shall be resolved by litigation in a
court of competent jurisdiction in accordance with Section 9.10.
9.03 Liability Limits. Notwithstanding anything to the
contrary set forth herein:
(a) Except for Losses based on fraud or Losses arising
under Sections 9.01(a)(ii) or 9.01(a)(iii) or any breach of the representations
and warranties in the Transition Services Agreement or failure to perform under
the terms of the Transition Services Agreement (with respect to which there will
be no limitation), Sellers' indemnification obligations hereunder shall be
limited, in the aggregate, to the Escrowed Amount.
(b) Except for Losses based on fraud or Losses arising
under Sections 9.01(b)(ii), 9.01(b)(iii), 9.01(b)(iv) or 9.01(b)(v) or any
breach of the representations and warranties in the Warrant or failure to
perform under the terms of the Warrant (with respect to which there will be no
limitation), Purchasers' and Parent's indemnification obligations hereunder
shall be limited, in the aggregate, to $600,000.00.
(c) Except for Losses based on fraud, the indemnification
provisions of this Article IX are the sole and exclusive remedy of any Purchaser
Indemnified Party for breach of any of Sellers' representations or warranties
contained herein.
(d) Except for Losses based on fraud, the indemnification
provisions of this Article IX are the sole and exclusive remedy of any Seller
Indemnified Party for breach of any of Parent or Purchasers' representations or
warranties contained herein.
(e) Sellers shall not be liable to Purchaser Indemnified
Parties for Losses arising under Section 9.01(a)(i), unless and until the
aggregate of such Losses exceed $60,000, and then Sellers shall be liable for
all such Losses, not just the amount in excess of $60,000.
(f) Purchasers and Parent shall not be liable to Seller
Indemnified Parties for Losses arising under Section 9.01(b)(i), unless and
until the aggregate of such Losses exceed $60,000, and then Purchasers and
Parent shall be liable for all such Losses, not just the amount in excess of
$60,000.
(g) All claims for Losses hereunder shall be made net of
any insurance proceeds actually recovered by the party claiming such
indemnification; provided, that, such party shall only be obligated to use
commercially reasonable efforts to pursue any such insurance proceeds.
(h) In no event shall any party be liable under this
Article IX for special, indirect, consequential (including lost profits) or
punitive damages.
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9.04 Forfeiture of Escrowed Amount. Except for Losses
based on fraud or Losses arising under Sections 9.01(a)(ii) or 9.01(a)(iii),
the indemnification obligations of Sellers hereunder shall be satisfied by
claims against the Escrowed Amount.
9.05 Use of Name. Within ten (10) days after Closing,
Propelis Software, Inc. shall file an amendment with the Minnesota Secretary of
State to its Articles of Incorporation to change its name to CNT Acquisition I
Corporation. From and after the Closing, Sellers shall not use, directly or
indirectly, the name "Propelis Software," "Enterprise/Access," or "BPm," or any
similar name, except in connection with customary activities related to the
winding-down of the Business.
9.06 US Employee Matters.
(a) Except as specifically set forth in Section 9.06(e),
Jacada-US shall have no obligation to offer employment to, or employ, any
Employees in the United States ("US Employees") and Jacada-US shall have no
liability in respect of any such US Employees for salary, compensation,
severance, stock options or stock option plans, health, welfare, retirement or
other benefits arising out of employment with Sellers. Jacada-US shall have the
right, in its sole discretion, to offer employment to any US Employee, and
Sellers shall have no influence or control over the selection process. Prior to
Closing, Sellers shall advise all US Employees that: (i) their employment with
Sellers shall terminate immediately prior to the Closing Date; (ii) Sellers
shall offer its severance practice as provided in subsection (iii) below; and
(iii) upon termination of employment, they will be entitled to severance pay
from Sellers in an amount to be calculated in accordance with Sellers' Standard
Severance Practice (or in a greater amount, in the case of US Employees with
agreements providing for same), but only in the event that they do not receive
an offer of employment from Jacada-US or any Seller on or prior to the sixty-day
anniversary of the Closing Date (regardless of whether they accept any such
offer of employment). Sellers shall indemnify and hold Parent and Purchasers
harmless against any and all damages, losses and liabilities associated with or
related to the failure of Sellers to pay severance amounts to US Employees in
accordance with Sellers' Standard Severance Practice.
(b) To the extent permitted by applicable law and the
terms of the applicable Benefit Plans, US Employees of Sellers that are hired by
Jacada-US shall receive credit for eligibility to participate and vesting under
Jacada-US's Benefit Plans for years of service with Sellers (and their
respective subsidiaries and predecessors).
(c) Notwithstanding any other provision of this
Agreement, Sellers shall provide "continuation coverage" to all "M&A qualified
beneficiaries" in connection with the transactions contemplated herein, all as
determined pursuant to Section 4980B of the Internal Revenue Code and the
regulations thereunder and Section 601 of ERISA et seq. Sellers shall indemnify
and hold Parent and Purchasers harmless against any and all damages, losses and
liabilities associated with or related to the Sellers' failure to comply with
COBRA.
(d) Sellers shall be responsible for providing any notice
of layoff or plant closings required, and any severance pay or other liabilities
or obligations to US Employees under the Worker Adjustment and Retraining
Notification Act of 1988 ("WARN"), any successor federal law, and any applicable
foreign, state or local plant closing notification statute. Sellers shall
33
indemnify and hold Parent and Purchasers harmless against any and all damages,
losses and liabilities associated with or related to Sellers' failure to comply
with WARN and such other laws.
(e) Promptly after Closing, Parent or Purchasers shall
reimburse Sellers for severance obligations actually paid by Sellers to US
Employees that do not receive an offer of employment from Jacada-US or any
Seller (regardless of whether they accept any such offer of employment), but
only in an amount not to exceed, in the aggregate, 100% of the amount reflected
in the column entitled "Base Severance" and 50% of the amount reflected in the
column entitled "Additional Severance" on Exhibit 9.06(e) for each applicable US
Employee, subject to Sellers providing reasonable documentation of such
expenses. In the event that one or more US Employees thereafter receives an
offer of employment from any Seller on or prior to the sixty-day anniversary of
the Closing Date (regardless of whether they accept any such offer of
employment), Sellers shall refund to Parent or Purchasers (as applicable) the
associated severance costs previously paid to Sellers by Parent or Purchasers
(as applicable). The foregoing reimbursement obligation shall be referred to
herein as the "Severance Reimbursement Obligation".
9.07 UK Employee Matters.
(a) The parties acknowledge and agree that the sale and
purchase pursuant to this Agreement will constitute a relevant transfer for the
purposes of the Transfer of Undertakings (Protection of Employment) Regulations
(the "Transfer Regulations") and that it will not operate so as to terminate any
of the contracts of employment of the Employees employed in the Business in the
United Kingdom (the "UK Employees") and such contracts shall be transferred to
Jacada-UK pursuant to the Transfer Regulations with effect from the Closing
Date.
(b) Jacada-UK hereby undertakes to CNTUK:
(i) to perform and observe, on and from the Closing Date,
all employer obligations (whether arising under common law, statute,
equity or otherwise) under or in connection with the contracts of
employment of the UK Employees (or any of the said obligations CNTUK
would have had under or in connection with the said contracts but for
the Transfer Regulations); and
(ii) fully to indemnify and keep indemnified the Sellers
against all losses, damages, costs, actions, awards, penalties, fines,
proceedings, claims, demands, liabilities (including without limitation
any liability to Taxes), and expenses (including, without limitation,
legal and other professional fees and expenses) which the Sellers may
suffer, sustain, incur, pay or be put to by reason or on account of or
arising from: (A) any failure by Jacada-UK to comply with its
obligations under subsection (b)(i); (B) any claim or other legal
recourse by all or any of the UK Employees in respect of any fact or
matter concerning or arising from employment with Jacada-UK on and from
the Closing Date; (C) any claim or other legal recourse by any trade
union or staff association or employee representatives in respect of
all or any of the UK Employees arising from or connected with the
failure by Jacada-UK to comply with its legal obligations to such trade
union or staff association or employee representatives; (D) any act or
omission done or omitted to be done by Jacada-UK in relation to the UK
Employees on and from the Closing Date;
34
(E) without prejudice to subsection (ii)(d) above, any claim or demand
or other legal recourse against the Sellers by any UK Employee or other
person or agent or employee or contractor who claims (whether correctly
or not) that there has been a breach by Jacada-UK of Regulation 10 of
the Transfer Regulations; and (F) any termination or dismissal
(constructive, unfair or otherwise) or any steps taken to terminate the
contract of employment, of any of the UK Employees on and from the
Closing Date.
(c) CNTUK hereby undertakes to Jacada-UK that:
(i) they have performed and observed, at all times prior
to the Closing Date, all employer obligations (whether arising under
common law, statute, equity or otherwise) under or in connection with
the contracts of employment of the UK Employees; and
(ii) fully to indemnify and keep indemnified Parent and
Purchasers against all losses, damages, costs, actions, awards,
penalties, fines, proceedings, claims, demands, liabilities (including
without limitation any liability to Taxes), and expenses (including,
without limitation, legal and other professional fees and expenses)
which Parent and Purchasers may suffer, sustain, incur, pay or be put
to by reason or on account of or arising from: (A) any failure by CNTUK
to comply with its obligations mentioned in subsection (c)(i); (B) any
claim or other legal recourse by all or any of the UK Employees in
respect of any fact or matter concerning or arising from employment
with CNTUK prior to the Closing Date; (C) any claim or other legal
recourse by any trade union or staff association or employee
representatives in respect of all or any of the UK Employees arising
from or connected with the failure by CNTUK to comply with its legal
obligations to such trade union or staff association or employee
representatives; (D) any act or omission done or omitted to be done by
CNTUK in relation to the UK Employees prior to the Closing Date; (E)
without prejudice to subsection (ii)(D) above, any claim or demand or
other legal recourse against Parent or Purchasers by any UK Employee or
other person or agent or employee or contractor who claims (whether
correctly or not) that there has been a breach by CNTUK of Regulation
10 of the Transfer Regulations provided that the indemnity shall not
apply where such breach results, directly or indirectly, from a breach
by Parent or Purchasers of such Regulation; and (F) any termination or
dismissal (constructive, unfair or otherwise) or any steps taken to
terminate the contract of employment, of any of the UK Employees prior
to the Closing Date.
(d) Without prejudice to the other provisions of this
clause, the Sellers shall, at the expense of Parent and Purchasers, give Parent
and Purchasers such assistance as they may reasonably require to contest any
claim by any UK Employee employed in the Business at or prior to Closing
resulting from or in connection with this Agreement if such claim is one for
which this Agreement makes Parent and Purchasers responsible; and Parent and
Purchasers shall, at the expense of Sellers, give Sellers such assistance as
they may reasonably require to contest any claim by any such employee if such
claim is one for which this Agreement makes the Sellers responsible.
9.08 Covenants Against Competition.
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(a) In order to induce Purchasers and Parent to enter
into this Agreement and consummate the transactions contemplated hereby, each
Seller agrees that neither it nor any of its respective Affiliates (but
specifically excluding outside members of their respective Boards of Directors)
shall, without the prior written consent of Parent and Purchasers, for its own
account or jointly with another, directly or indirectly, for or on behalf of any
Person, as principal, agent, shareholder, participant, partner, promoter,
director, officer, manager, employee, consultant, sales representative or
otherwise, except for the benefit of the Parent and Purchasers or their
Affiliates:
(i) for a period of three (3) years from the date of the
Closing, engage or invest in, or own, control, manage or participate in
the ownership, control or management of, or render services or advice
to, any business engaged, or which it reasonably knows is undertaking
to become engaged, in a Competing Business in the Restricted Territory.
(ii) for a period of three (3) years from the date of the
Closing solicit, or assist in the solicitation of, any Person having an
office or place of business within the Restricted Territory and to whom
Sellers sold or provided any products or services related to the
Business on, or during the two (2) year period prior to, the date of
the Closing, for the purpose of obtaining the patronage of such Person
for the purchase of any competitive products or services;
(iii) for a period of three (3) years from the date of the
Closing, (A) solicit, or assist in the solicitation of, for the purpose
of offering employment to or hiring, or (B) actually hire, any Person
employed by Parent or either Purchaser (as an employee, independent
contractor or otherwise) that was formerly an Employee of the Business;
or
(iv) use, disclose or reveal to any Person, any
Confidential Information (as defined below) of the Parent and
Purchasers; provided, however, that the obligations of this clause (iv)
shall terminate with respect to any business information that does not
constitute a trade secret under applicable Law upon the expiration of
three (3) years after the date of the Closing. "Confidential
Information" means all information of the Parent and Purchasers which
derives value, economic or otherwise, from not being generally known to
the public, but excluding any information that comes into the public
domain through no fault of Sellers or any information that is required
to be disclosed by an Order or by any Law.
(b) Notwithstanding anything herein to the contrary, (i)
it shall not be a breach of the covenant contained in subsection (a)(i) above
for a Seller or any of its Affiliates to own not more than five percent (5%) of
the equity interests of any Person whose equity interests are publicly traded;
(ii) it shall not be a breach of the covenant contained in subsection (a)(iii)
above for Sellers to run general advertisements for employment opportunities in
newspaper publications or otherwise; and (iii) the covenants described in this
Section 9.08 shall apply only if the transactions contemplated hereby are
consummated at the Closing. If the transactions contemplated herein are
consummated, "Confidential Information" of Parent and Purchasers shall be deemed
to include all Confidential Information of Sellers related to the Business, and
Sellers shall be subject to the obligations of non-use and non-disclosure
contained in this Section 9.08 with respect to all of such information.
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(c) Notwithstanding anything contained in this Agreement
to the contrary, Sellers acknowledge and agree that Parent and Purchasers'
remedy at law for a breach or threatened breach of any of the provisions of
Sections 9.08(a) would be inadequate and, in recognition of that fact, in the
event of a breach or threatened breach by Sellers of the provisions of Sections
9.08(a), it is agreed that, in addition to its remedies at law, Parent and
Purchasers shall be entitled to equitable relief in the form of specific
performance, temporary restraining order, temporary, preliminary, or permanent
injunction, or any other equitable remedy which may then be available, including
but not limited to an equitable accounting of all earnings, profits and other
benefits arising from or in connection with such violation. Sellers agree not to
oppose Parent and Purchasers' request for any of the above relief on the grounds
that Parent and Purchasers have not been irreparably injured or that Parent and
Purchasers have an adequate remedy at law or that such equitable relief is
inappropriate. Nothing set forth in this Section 9.08(c) shall be construed as
prohibiting Parent and Purchasers from pursuing any other rights and remedies
available to them for such breach or threatened breach.
(d) Notwithstanding anything herein to the contrary, the
covenants described in Section 9.08(a)(i), (ii) and (iii) shall terminate in the
event of the acquisition of the remaining business of the Sellers by an
unrelated third party in an arms' length transaction (whether pursuant to the
acquisition of all or substantially all of the assets of the Sellers or the
capital stock of CNT, or a merger, exchange or consolidation to which CNT is a
party as a result of which the shareholders of CNT immediately prior to such
transaction will own less than 51% of the outstanding equity interests of the
surviving entity), but only in the event that both of the following conditions
are satisfied:
(i) the acquisition cannot be consummated prior to the
first anniversary of the date of Closing if the acquiring entity is
listed on Schedule 9.08(d) attached hereto (unless such entity is
primarily engaged in the storage networking business on the date of
such acquisition); and
(ii) if the acquiring entity is engaged in a Competing
Business, any Employees of the Business that are re-hired by Sellers
may not work in or with the subsidiary, division or other business unit
of the acquiring entity that is engaged in the Competing Business.
9.09 Further Assurances; Post-Closing Cooperation. At any
time or from time to time after the Closing, at Parent and Purchasers' request
and expense, but without further consideration, Sellers shall execute and
deliver to Parent and Purchasers such other instruments of sale, transfer,
conveyance, assignment and confirmation, provide such materials and information
and take such other actions as Parent and Purchasers may reasonably deem
necessary or desirable in order more effectively to transfer, convey and assign
to Parent and Purchasers, and to confirm Parent and Purchasers' title to, all of
the Business and the Assets, and, to the full extent permitted by Law, to put
Parent and Purchasers in actual possession and operating control of the Assets
and to assist Parent and Purchasers in exercising all rights with respect
thereto, and otherwise to cause Sellers to fulfill their obligations under this
Agreement and the Operative Agreements.
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9.10 Third-Party Consents. To the extent that any
contract, lease, license or other agreement included in the Assets is not
assignable or transferable without the consent of another party, this Agreement
shall not constitute an assignment or an attempted assignment thereof if such
assignment or attempted assignment would constitute a breach thereof (an
"Unassigned Item"). Sellers shall use their reasonable best efforts (but without
any requirement to pay money) to obtain the necessary consent to the assignment
or transfer of all Unassigned Items, and Parent and Purchasers shall cooperate
in those efforts. The beneficial interest in and to each Unassigned Item shall
in any event pass to Parent and Purchasers at Closing, and Sellers covenant and
agree to cooperate with Parent and Purchasers in any reasonable arrangement to
provide Parent and Purchasers with Sellers' entire interest in the benefits
under each Unassigned Item. If and only if such reasonable arrangement can be
made, Parent and Purchasers agrees to accept the burdens and perform the
obligations under such Unassigned Item. Furthermore, if the other party's
consent is subsequently obtained (without any modification thereto which is
adverse to Parent and Purchasers), Parent and Purchasers shall at such time
agree to assume all liabilities and obligations thereunder at which time such
Unassigned Item shall become an Asset. If and to the extent that such
arrangement cannot be made, Parent and Purchasers shall have no obligation
pursuant to Section 1.02(a) or otherwise with respect to any such Contract. The
provisions of this Section 9.10 shall not affect the right of Parent and
Purchasers not to consummate the transactions contemplated by this Agreement if
the condition to its obligations hereunder contained in Section 5.06 has not
been fulfilled.
9.11 Submission to Jurisdiction.
(a) Parent and each Purchaser agree that any legal suit,
action or proceeding instituted by any of them, arising out of or based upon
this Agreement or the Operative Agreements shall be instituted in any Federal
court in Hennepin County, State of Minnesota (or, if such courts do not have
jurisdiction, as determined by the plaintiff, in any state court in Hennepin
County, State of Minnesota), and irrevocably submits to and accepts the
exclusive jurisdiction of such courts in any such proceeding. To the extent that
CNTUK, any of its respective revenues, assets or properties has or hereafter may
acquire any immunity from jurisdiction of any court in Hennepin County, State of
Minnesota, CNTUK hereby irrevocably agrees not to claim, and irrevocably waives
(to the extent it lawfully may do so), any such immunity, and any defense based
on such immunity, in respect of its obligations arising out of this Agreement,
the Operative Agreements or the transactions contemplated hereby or thereby.
(b) Each Seller agree that any legal suit, action or
proceeding instituted by any of them, arising out of or based upon this
Agreement or the Operative Agreements shall be instituted in any Federal court
in Xxxxxx County, State of Georgia (or, if such courts do not have jurisdiction,
as determined by the plaintiff, in any state court in Xxxxxx County, State of
Georgia), and irrevocably submits to and accepts the exclusive jurisdiction of
such courts in any such proceeding. To the extent that Parent, Jacada-UK, any of
their respective revenues, assets or properties has or hereafter may acquire any
immunity from jurisdiction of any court in Xxxxxx County, State of Georgia,
Parent and Jacada-UK hereby irrevocably agree not to claim, and irrevocably
waives (to the extent it lawfully may do so), any such immunity, and any defense
based on such immunity, in respect of its obligations arising out of this
Agreement, the Operative Agreements or the transactions contemplated hereby or
thereby.
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9.12 Carve-Out Financial Statements. CNT will use
reasonable best efforts to deliver to Parent and Purchasers true and complete
copies of the following financial statements within thirty (30) after Closing:
(a) the audited consolidated balance sheet of the Business as of December 31,
2000 and 1999; and (b) the related audited statement of operations and cash
flows for the fiscal years ended December 31, 2000, 1999 and 1998, together with
a true and correct copy of the report on such audited information by CNT's
auditors. The foregoing financial statements shall be referred to as the
"Carve-Out Financial Statements". The Carve-Out Financial Statements (i) will be
prepared from the Business Books and Records in accordance with GAAP, (ii) will
fairly present the financial condition and results of operations of the Business
as of the respective dates thereof and for the respective periods covered
thereby, and (iii) will be compiled from the Business Books and Records
regularly maintained by management and used to prepare the financial statements
of Sellers in accordance with the principles stated therein. CNT's auditors will
be engaged and paid by Parent and Purchasers, and Parent and Purchasers will
reimburse CNT for any reasonable out-of-pocket expenses incurred by Sellers in
connection therewith. Notwithstanding the foregoing, in the event that Parent is
unable to engage CNT's independent auditors, CNT shall engage such auditors to
audit the Carve-Out Financial Statements, and Parent and Purchasers shall
reimburse CNT for same.
9.13 Accounts Receivable. The parties will make reasonable
efforts to collect all Accounts Receivable after the Closing, but neither party
shall be obligated to institute any legal proceeding or hire any collection
agent for the purpose of collecting such accounts receivable. Sellers shall
repurchase from Purchasers on the date which is ninety (90) days following the
Closing Date (or on such other date as Sellers and Purchasers mutually agree),
all such Accounts Receivable, to the extent not collected on or before such
date, for a purchase price equal to 100% of their outstanding balance. The
amount repurchased shall be net of any bad debt reserves, and with respect to
maintenance receivables, net of any remaining deferral of accrued revenue
related to the uncollectible receivable so repurchased. In determining whether
an account has been collected, payments by an account debtor shall be applied to
the oldest accounts outstanding, unless otherwise reasonably indicated by
remittance advice or similar documentation that such payment should not be
applied to the oldest accounts because of a dispute with respect to such
accounts.
9.14 Access to Records. Following the Closing, each party
will afford the other party, its counsel and its accountants, during normal
business hours, reasonable access to the books, records and other data relating
to the Business in its possession with respect to periods prior to the Closing
and the right to make copies and extracts therefrom, to the extent that such
access may be reasonably required by the requesting party in connection with (i)
the preparation of Tax Returns, (ii) the determination or enforcement of rights
and obligations under this Agreement, (iii) compliance with the requirements of
any Governmental or Regulatory Authority, (iv) the determination or enforcement
of the rights and obligations of any Indemnified Party or (v) in connection with
any actual or threatened Action or Proceeding. Further each party agrees for a
period extending five (5) years after the Closing Date not to destroy or
otherwise dispose of any such books, records and other data unless such party
shall first offer in writing to surrender such books, records and other data to
the other party and such other party shall not agree in writing to take
possession thereof during the ten (10) day period after such
39
offer is made. Notwithstanding anything to the contrary contained in this
Section 9.14, if the parties are in an adversarial relationship in litigation or
arbitration, the furnishing of information, documents or records relating to the
matter in dispute shall be subject to applicable rules relating to discovery.
ARTICLE X
DEFINITIONS
10.01 Definitions.
(a) Defined Terms. As used in this Agreement, the
following defined terms have the meanings indicated below:
"Accounts Payable" has the meaning ascribed to it in Section
1.02(a)(iii).
"Accounts Receivable" has the meaning ascribed to it in
Section 1.01(a)(iii).
"Acquisition" means the purchase and sale of the Assets
pursuant to this Agreement.
"Acquisition Transaction" has the meaning ascribed to it in
Section 4.04).
"Actions or Proceedings" means any action, suit, proceeding,
arbitration or Governmental or Regulatory Authority investigation or audit.
"Adjusted Net Worth" has the meaning ascribed to it in Section
1.06(b).
"Affiliate" means any Person that directly, or indirectly
through one of more intermediaries, controls or is controlled by or is under
common control with the Person specified. For purposes of this definition,
control of a Person means the power, direct or indirect, to direct or cause the
direction of the management and policies of such Person whether by Contract or
otherwise and, in any event and without limitation of the previous sentence, any
Person having record ownership of ten percent (10%) or more of the voting
securities of another Person (other than CEDE & Co.) shall be deemed to control
that Person.
"Agreement" means this Asset Purchase Agreement and the
Exhibits, the Disclosure Schedule and the Schedules hereto and the certificates
delivered in accordance with Sections 5.03 and 6.03, as the same shall be
amended from time to time.
"Annual Financial Statement Date" means the last day of the
most recent fiscal year of the Business for which Financial Statements are
delivered to Parent and Purchasers pursuant to Section 2.06.
"Annual Financial Statements" means the Financial Statements
for the most recent fiscal year of the Business delivered to Parent and
Purchasers pursuant to Section 2.06.
40
"Assets" has the meaning ascribed to it in Section 1.01(a).
"Assignment Instruments" has the meaning ascribed to it in
Section 1.04.
"Associate" means, with respect to any Person, any corporation
or other business organization of which such Person is an officer or partner or
is the beneficial owner, directly or indirectly, of ten percent (10%) or more of
any class of equity securities, any trust or estate in which such Person has a
substantial beneficial interest or as to which such Person serves as a trustee
or in a similar capacity and any relative or spouse of such Person, who has the
same home as such Person.
"Assumed Agreements" has the meaning ascribed to it in Section
1.01(a)(v).
"Assumed Liabilities" has the meaning ascribed to it in
Section 1.02(a).
"Assumption Agreement" has the meaning ascribed to it in
Section 1.04.
"Assumption Instruments" has the meaning ascribed to it in
Section 1.04.
"Benefit Plan" has the meaning ascribed to it in Section 2.12.
"Xxxx of Sale" has the meaning ascribed to it in Section 1.04.
"Books and Records" of any Person means all files, documents,
instruments, papers, books and records relating to the business, operations,
condition of (financial or other), results of operations and assets and
properties of such Person, including without limitation, budgets, pricing
guidelines, ledgers, journals, Contracts, Licenses, customer lists, computer
files and programs, retrieval programs and operating data.
"Business" has the meaning ascribed to it in the forepart of
this Agreement.
"Business Books and Records" has the meaning ascribed to it in
Section 1.01(a)(ix).
"Business Day" means a day other than Saturday, Sunday or any
day on which banks located in the State of Georgia are authorized or obligated
to close.
"Carve-Out Financial Statements" has the meaning ascribed to
it in Section 9.11.
"Claim Notice" means written notification pursuant to Section
9.02(a) of a Third Party Claim as to which indemnity under Section 9.01 is
sought by an Indemnified Party, enclosing a copy of all papers served, if any,
and specifying the nature of and basis for such Third Party Claim and for the
Indemnified Party's claim against the Indemnifying Party under Section 9.01,
together with the amount or, if not then reasonably ascertainable, the estimated
amount, determined in good faith, of such Third Party Claim.
41
"Closing" means the closing of the transactions contemplated
by Section 1.04.
"Closing Date" has the meaning ascribed to it in Section 1.04.
"Closing Date Statement" has the meaning ascribed to it in
Section 1.06.
"Code" means the Internal Revenue Code of 1986, as amended,
and the rules and regulations promulgated thereunder.
"Competing Business" means a business competitive with the
Business, as the Business exists as of the date hereof.
"Condition of the Business" means the business, condition
(financial or otherwise), results of operations, assets, properties of the
Business.
"Contract" means any agreement, lease, license, evidence of
Indebtedness, mortgage, indenture, security agreement or other contract (whether
written or oral).
"Disclosure Schedule" means the record delivered to Parent and
Purchasers by Sellers herewith and dated as of the date hereof, as modified
pursuant to Section 4.06 hereof, containing all lists, descriptions, exceptions
and other information and materials as are required to be included therein by
Sellers pursuant to this Agreement.
"Dispute Period" means the period ending thirty (30) days
following receipt by an Indemnifying Party of either a Claim Notice or an
Indemnity Notice.
"Domain Name" has the meaning ascribed to it in Section
2.15(n).
"Employee" means each current employee, officer or consultant
of any Seller engaged in the conduct of the Business (excluding administrative
personnel that have job functions in whole or in part supporting other business
units of Sellers).
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and the rules and regulations promulgated thereunder.
"Escrow Agent" means the Person selected by Parent and
Purchasers who shall serve as Escrow Agent pursuant to the Escrow Agreement.
"Escrow Agreement" means the Escrow Agreement to be executed
at Closing among Parent, Seller and the Escrow Agent.
"Escrowed Amount" has the meaning ascribed to it in Section
1.03(b).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
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"Excluded Assets" has the meaning ascribed to it in Section
1.01(b).
"Financial Statements" means the pro forma financial
statements delivered to Parent and Purchasers pursuant to Section 2.06.
"GAAP" means generally accepted accounting principles in the
United States.
"General Assignment" has the meaning ascribed to it in Section
1.04.
"Governmental or Regulatory Authority" means any court,
tribunal, arbitrator, authority, agency, commission, official or other
instrumentality of the United States, any foreign country or any domestic or
foreign state, county, city or other political subdivision.
"Indebtedness" of any Person means all obligations of such
Person (i) for borrowed money, (ii) evidenced by notes, bonds, debentures or
similar instruments, (iii) for the deferred purchase price of goods or services
(other than trade payables or accruals incurred in the ordinary course of
business), (iv) under capital leases and (v) in the nature of guarantees of the
obligations described in clauses (i) through (iv) above of any other Person.
"Indemnified Party" means any Person claiming indemnification
under any provision of Article IX, including without limitation a Person
asserting a claim pursuant to Section 9.02.
"Indemnifying Party" means any Person against whom a claim for
indemnification is being asserted under any provision of Article IX, including
without limitation a Person against whom a claim is asserted pursuant to Section
9.02.
"Indemnity Notice" means written notification pursuant to
Section 9.02(b) of a claim for indemnity under Article IX by an Indemnified
Party, specifying the nature of and basis for such claim, together with the
amount or, if not then reasonably ascertainable, the estimated amount,
determined in good faith, of such claim.
"Independent Accountant" has the meaning ascribed to it in
Section 1.06(c).
"Intellectual Property" means all patents and patent rights,
trademarks and trademark rights, trade names and trade name rights, domain
names, service marks and service xxxx rights, service names and service name
rights, brand names, inventions, processes, methods, designs, devices, tools,
specifications, techniques, algorithms, formulae, improvements, copyrights and
copyright rights, trade dress, business and product names, logos, slogans, trade
secrets, industrial models, computer programs, software (whether in source or
object code) and related documentation, technical information, manufacturing,
engineering and technical drawings, know-how and all pending applications for
and registrations of patents, trademarks, service marks and copyrights.
43
"Intellectual Property Assets" has the meaning ascribed to it
in Section 1.01(a)(vii).
"Inventory" has the meaning ascribed to it in Section
1.01(a)(i).
"Israeli Approvals" has the meaning ascribed to it in Section
3.04.
"Key Employees" means the Employees identified by Parent and
Purchasers to Sellers in writing as soon as reasonably practicable after the
date of this Agreement.
"Knowledge" means in the case of an individual that he will be
deemed to have Knowledge of a particular fact or other matter if such individual
is actually aware of such fact or other matter or would be expected to be aware
of such fact or matter after due inquiry. When used with respect to any or all
of the Sellers, Knowledge means the Knowledge of Xxxxxx Xxxxxx, Xxxxxxx Xxxxxx,
Xxxxxxx Xxxxxxxxx, Xxxx Xxxxxxx, Xxxxxxx Xxxxxxxxx, Xxxxxxx Xxxx and Xxxx
Xxxxxxx, and when used with respect to Parent or Purchasers, means the Knowledge
of Xxxxxx Xxxxxxxxx, Xxxxxxx Xxxxx, Xxxxxx Xxxxxxxx and Xxxx Xxxxxxxxxx.
"Laws" means all laws, statutes, rules, regulations,
ordinances and other pronouncements having the effect of law of the United
States, any foreign country or any domestic or foreign state, county, city or
other political subdivision or of any Governmental or Regulatory Authority.
"Liabilities" means all Indebtedness, obligations and other
liabilities of a Person (whether absolute, accrued, contingent, fixed or
otherwise, or whether due or to become due).
"Licenses" means all licenses, permits, certificates of
authority, authorizations, approvals, registrations, franchises and similar
consents granted or issued by any Governmental or Regulatory Authority.
"Liens" means any mortgage, pledge, assessment, security
interest, lease, lien, adverse claim, levy, charge or other encumbrance of any
kind, or any conditional sales Contract, title retention Contract or other
Contract to give any of the foregoing.
"Loss" means any and all damages, fines, fees, penalties,
deficiencies, losses and expenses (including without limitation interest, court
costs, reasonable fees of attorneys, accountants and other experts or other
expenses of litigation or other proceedings or of any claim, default or
assessment).
"Material Adverse Effect" has the meaning ascribed to it in
Section 2.01.
"Operative Agreements" means, collectively, the Escrow
Agreement, the Transition Services Agreement, the Warrant, the General
Assignment and the other Assignment Instruments, the Assumption Agreement and
the other Assumption Instruments and any other agreements to be entered into in
connection with the Acquisition.
44
"Order" means any writ, judgment, decree, injunction or
similar order of any Governmental or Regulatory Authority (in each such case
whether preliminary or final).
"Parent Material Adverse Effect" has the meaning ascribed to
it in Section 2.01.
"Permitted Lien" means (i) any Lien for Taxes not yet due or
delinquent or being contested in good faith by appropriate proceedings for which
adequate reserves have been established in accordance with GAAP, (ii) any
statutory Lien arising in the ordinary course of business by operation of Law
with respect to a Liability that is not yet due or delinquent, (iii) any minor
imperfection of title or similar Lien which individually or in the aggregate
with other such Liens does not materially impair the value of the property
subject to such Lien or the use of such property in the conduct of the Business
and (iv) any lien set forth on Section 2.13(b) of the Disclosure Schedules.
"Person" means any natural person, corporation, general
partnership, limited partnership, proprietorship, other business organization,
trust, union, association or Governmental or Regulatory Authority.
"Personal Property Leases" has the meaning ascribed to it in
Section 1.01(a)(iv).
"Pre-Closing Tax Period" means any Tax period (or portion
thereof) ending on or before the close of business on the Closing Date.
"Prepaid Expenses" has the meaning ascribed to it in Section
1.01(a)(vi).
"Products" has the meaning ascribed to it in Section 2.15(c).
"Purchase Price" has the meaning ascribed to it in Section
1.03(a).
"Purchasers" has the meaning ascribed to it in the forepart of
this Agreement.
"Purchaser Indemnified Parties" means Purchasers, Parent and
their respective officers, directors, employees, agents and Affiliates.
"Real Property Leases" has the meaning ascribed to it in
Section 1.01(b)(i).
"Representative" means a Person's directors, officers,
employees, agents, consultants, advisors or other representatives, including
legal counsel and accountants.
"Resolution Period" means the period ending thirty (30) days
following receipt by an Indemnified Party of a written notice from an
Indemnifying Party stating that it disputes all or any portion of a claim set
forth in a Claim Notice or an Indemnity Notice.
"Restricted Territory" means the United States of America and
the United Kingdom.
45
"Retained Liabilities" has the meaning ascribed to it in
Section 1.02(b).
"SEC" has the meaning ascribed to it in Section 3.07.
"SEC Documents" has the meaning ascribed to it in Section
3.07.
"Securities Act" means the Securities Act of 1933, as amended.
"Sellers" has the meaning ascribed to it in the forepart of
this Agreement.
"Sellers' Standard Severance Practice" means one week of
severance pay for each year of service with Sellers (subject to a two-week
minimum) and, in the event that the applicable Employee executes a release in
favor of Sellers, an additional two to six weeks of severance pay (depending on
the applicable Employee's position) and payment of two months of COBRA costs.
"Severance Reimbursement Obligation" has the meaning ascribed
to it in Section 9.06(e).
"Shared Facilities and Assets" means the following items to
the extent not related exclusively to the Business: (i) the accounting records
of CNT and its subsidiaries, (ii) assets, property, contracts, trusts or rights
related to Benefit Plans, (iii) insurance polices and rights thereto, (iv)
inventory (other than Inventory), (v) assets, tangible or intangible, related to
general and administrative services of CNT and its subsidiaries generally,
including finance, information technology, accounting systems, human resources,
heating, ventilation and air conditioning systems, real estate and vehicles, and
(vi) domain names (other than xxx.xxxxxxxx.xxx and xxx.xxxxxxXXX.xxx), phone
numbers, phone systems, shared networks and computer systems, (viii) the name
Computer Network Technology Corporation, CNT and related trademarks, service
marks, trade dress, logos and corporate names.
"Tangible Personal Property" has the meaning ascribed to it in
Section 1.01(a)(ii).
"Tax Returns" means any return, declaration, report, claim for
refund, or information return or statement relating to Taxes, including any
schedule or attachment thereto, and including any amendment thereof.
"Taxes" means any federal, state, local, or foreign income,
gross receipts, license, payroll, employment, excise, severance, stamp,
occupation, premium, windfall profits, environmental (including taxes under Code
Sec. 59A), customs duties, capital stock, franchise, profits, withholding,
social security (or similar), unemployment, disability, real property, personal
property, sales, use, transfer, registration, value added, alternative or add-on
minimum, estimated, or other tax of any kind whatsoever, including any interest,
penalty, or addition thereto, whether disputed or not.
"Third Party Claim" has the meaning ascribed to it in Section
9.02(a).
46
"Third Party Licenses" has the meaning ascribed to it in
Section 2.15(b).
"Third Party Technology" has the meaning ascribed to it in
Section 2.15(b).
"Warrant" has the meaning ascribed to it in Section 1.03(a).
"webMethods License" means that certain Technology License
Agreement by and between IntelliFrame Corporation and XxxxXxxxxx.xxx, Inc. dated
February 2, 2001.
"webMethods Option" means the patent license option existing
in favor of webMethods, Inc. ("webMethods") pursuant to Section 5.15 of that
certain Agreement and Plan of Merger by and among webMethods, CNT and certain
other parties dated January 26, 2001.
"Unassigned Item" has the meaning ascribed to it in Section
9.09.
"Underlying Shares" has the meaning ascribed to it in Section
1.03(a).
(b) Construction of Certain Terms and Phrases. Unless the
context of this Agreement otherwise requires, (i) words of any gender include
each other gender; (ii) words using the singular or plural number also include
the plural or singular number, respectively; (iii) the terms "hereof," "herein,"
"hereby" and derivative or similar words refer to this entire Agreement; (iv)
the terms "Article" or "Section" refer to the specified Article or Section of
this Agreement; and (v) the phrases "ordinary course of business" and "ordinary
course of business consistent with past practice" refer to the business and
practice of Sellers in connection with the Business. Whenever this Agreement
refers to a number of days, such number shall refer to calendar days unless
Business Days are specified. All accounting terms used herein and not expressly
defined herein shall have the meanings given to them under GAAP.
ARTICLE XI
TERMINATION
11.01 Termination. This Agreement may be terminated:
(a) by mutual written consent of Parent and Purchasers
and Seller;
(b) by Parent and Purchasers, if the conditions set forth
in Article V shall not have been complied with or performed and such
noncompliance or nonperformance shall not have been cured or eliminated (or by
its nature cannot be cured or eliminated) by Sellers on or before August 31,
2001, provided that Parent and Purchasers are not in material default under this
Agreement; or
(c) by Sellers, if the conditions set forth in Article VI
shall not have been complied with or performed and such noncompliance or
nonperformance shall not have been cured or eliminated (or by its nature cannot
be cured or eliminated) by Parent and Purchasers on or before August 31, 2001,
provided that Seller is not in material default under this Agreement; or
47
(d) by either Parent and Purchasers or Sellers in the
event that Closing has not occurred on or before August 31, 2001.
11.02 Effect of Termination. In the event of the
termination of this Agreement pursuant to Section 11.01, this Agreement shall
forthwith become void and there shall be no continuing obligation on the part of
any party hereto or any of its affiliates, directors, officers or shareholders
except the provisions of Sections 9.10, 12.04 and 12.05 shall survive.
Notwithstanding the foregoing, nothing contained herein shall relieve any party
from liability for any breach hereof.
ARTICLE XII
MISCELLANEOUS
12.01 Notices. All notices, requests and other
communications hereunder must be in writing and will be deemed to have been duly
given only if delivered personally or by facsimile transmission or mailed (first
class postage prepaid) to the parties at the following addresses or facsimile
numbers:
If to Parent or Purchasers, to:
Jacada Ltd.
000 Xxxxxxxxx Xxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Facsimile No.: (000) 000-0000
Attn: Chief Financial Officer
with copies to:
Jacada Ltd.
000 Xxxxxxxxx Xxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Facsimile No.: (000) 000-0000
Attn: General Counsel
Xxxxx, Xxxxxxxx & Xxxxxxx
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
Facsimile No.: (000) 000-0000
Attn: Xxxxxx Xxx Xxxxxxxx, Esq.
If to Sellers, to:
48
Computer Network Technology Corporation
0000 Xxxxxx Xxxx Xxxxx
Xxxxxxxx, Xxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attn: Chief Financial Officer
with a copy to:
Xxxxxxx, Street and Deinard, P.A.
Suite 2300
0000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attn: Xxxxxx X. Xxxxxxx
All such notices, requests and other communications will (a) if delivered
personally to the address as provided in this Section, be deemed given upon
delivery, (b) if delivered by facsimile transmission to the facsimile number as
provided in this Section, be deemed given upon receipt, and (c) if delivered by
mail in the manner described above to the address as provided in this Section,
be deemed given upon receipt (in each case regardless of whether such notice,
request or other communication is received by any other Person to whom a copy of
such notice, request or other communication is to be delivered pursuant to this
Section). Any party from time to time may change its address, facsimile number
or other information for the purpose of notices to that party by giving notice
specifying such change to the other party hereto.
12.02 Bulk Sales Act. The parties hereby waive compliance
with the bulk sales act or comparable statutory provisions of each applicable
jurisdiction.
12.03 Entire Agreement. This Agreement and the Operative
Agreements supersede all prior discussions and agreements between the parties
with respect to the subject matter hereof and thereof between the parties, and
contain the sole and entire agreement between the parties hereto with respect to
the subject matter hereof and thereof. EXCEPT AS SPECIFICALLY SET FORTH IN THIS
AGREEMENT OR THE OPERATIVE AGREEMENTS, NEITHER PARTY MAKES ANY REPRESENTATIONS
OR WARRANTIES, EXPRESS OR IMPLIED, RELATING TO THE SUBJECT MATTER OF THIS
AGREEMENT AND THE OPERATIVE AGREEMENTS.
12.04 Expenses. Except as provided in the following
sentence and except as otherwise expressly provided in this Agreement, whether
or not the transactions contemplated hereby are consummated, each party (Sellers
collectively, and Purchasers and Parent collectively, each being one party for
purposes of this Section 12.04) will pay its own costs and expenses (including
without limitation all broker's or finder's fees) incurred in connection with
the negotiation, execution and closing of this Agreement and the Operative
Agreements and the transactions contemplated hereby and thereby. Notwithstanding
the foregoing, in the event that Closing occurs, Jacada-US will reimburse
Sellers for the Severance Reimbursement Obligation in accordance with Section
9.06(e) and will pay CNT's auditors for the Carve-Out Financial
49
Statements in accordance with Section 9.13. Parent and Purchasers shall
reimburse Employees and CNT (without duplication) for all out-of-pocket travel
and lodging expenses incurred in accordance with CNT's travel policies which are
associated with job interviews by Employees with Parent and Purchasers. The
foregoing sentence shall survive termination of this Agreement.
12.05 Confidentiality. In connection with the negotiation
of this Agreement, a party (Sellers collectively, and Purchasers and Parent
collectively, each being one party for purposes of this Section 12.05) hereto
(the "Disclosing Party") may disclose Confidential Information to one of the
other parties hereto (the "Disclosee"). Each party agrees that if the
transactions contemplated herein are not consummated, it will return to the
Disclosing Party all documents and other written information furnished to it.
Each party further agrees not to use, except for purposes of accomplishing the
transactions contemplated herein, and not to disclose or reveal to any other
Person (except in connection with financing transactions or mergers and
acquisitions where the recipient has executed a confidentiality agreement) any
of the Disclosing Party's Confidential Information (other than to such party's
Affiliates and Representatives who have a need to know such information in
connection with the transactions contemplated herein and who have been
instructed to treat such as confidential); provided, however, that the foregoing
obligations shall not apply to (a) any information which was known by the
Disclosee prior to its disclosure by or on behalf of the Disclosing Party; (b)
any information which was in the public domain prior to the disclosure thereof;
(c) any information which comes into the public domain through no fault of the
Disclosee; or (d) any information which is required to be disclosed by an Order
or by any Law. The Disclosee shall bear the burden of demonstrating the
applicability of one or more of the foregoing exceptions. For purposes of this
Agreement, "Confidential Information" shall mean, with respect to any Person,
any and all technical, business, and other information of such Person which
derives value, actual or potential, economic or otherwise, from not being
generally known to the public or to other Persons, including, without
limitation, technical or nontechnical data, compositions, devices, methods,
techniques, drawings, inventions, processes, financial data, financial plans,
product plans, lists of actual or potential customers or suppliers, information
regarding the acquisition and investment plans and strategies, business plans or
operations of the Person or its Affiliates. Confidential Information of a Person
includes information of third parties that such Person is obligated to keep or
treat as confidential. The provisions of this Section 12.05 shall survive any
termination of this Agreement for any reason and shall continue indefinitely;
provided, however, that the restrictions contained in this Section 12.05 shall
terminate with respect to any Confidential Information that does not constitute
a trade secret under applicable Law after the third anniversary of the date
hereof.
12.06 Waiver. Any term or condition of this Agreement may
be waived at any time by the party that is entitled to the benefit thereof, but
no such waiver shall be effective unless set forth in a written instrument duly
executed by or on behalf of the party waiving such term or condition. No waiver
by any party of any term or condition of this Agreement, in any one or more
instances, shall be deemed to be or construed as a waiver of the same or any
other term or condition of this Agreement on any future occasion. All remedies,
either under this Agreement or by Law or otherwise afforded, will be cumulative
and not alternative.
12.07 Amendment. This Agreement may be amended,
supplemented or modified only by a written instrument duly executed by or on
behalf of each party hereto.
50
12.08 No Third Party Beneficiary. The terms and provisions
of this Agreement are intended solely for the benefit of each party hereto and
their respective successors or permitted assigns, and it is not the intention of
the parties to confer third-party beneficiary rights upon any other Person under
United States or English law (including the Contracts (Rights of Third parties)
Act) other than any Person entitled to indemnity under Article IX.
12.09 No Assignment; Binding Effect. Neither this Agreement
nor any right, interest or obligation hereunder may be assigned by any party
hereto without the prior written consent of the other party hereto and any
attempt to do so will be void, except (a) for assignments and transfers by
operation of Law and (b) that either Purchaser may assign any or all of its
rights, interests and obligations hereunder (including without limitation its
rights under Article XI) to (i) a wholly-owned subsidiary, provided that any
such subsidiary agrees in writing to be bound by all of the terms, conditions
and provisions contained herein or (ii) any post-Closing purchaser of the
Business or a substantial part of the Assets but no such assignment shall
relieve Purchasers of their obligations hereunder. Sellers may assign their
rights hereunder to any Affiliate or to any Person that acquires all or
substantially all of the remaining business of Sellers. Subject to the preceding
sentence, this Agreement is binding upon, inures to the benefit of and is
enforceable by the parties hereto and their respective successors and assigns.
12.10 Headings. The headings used in this Agreement have
been inserted for convenience of reference only and do not define or limit the
provisions hereof.
12.11 Invalid Provisions. If any provision of this
Agreement is held to be illegal, invalid or unenforceable under any present or
future Law, and if the rights or obligations of any party hereto under this
Agreement will not be materially and adversely affected thereby, (a) such
provision will be fully severable, (b) this Agreement will be construed and
enforced as if such illegal, invalid or unenforceable provision had never
comprised a part hereof, (c) the remaining provisions of this Agreement will
remain in full force and effect and will not be affected by the illegal, invalid
or unenforceable provision or by its severance herefrom and (d) in lieu of such
illegal, invalid or unenforceable provision, there will be added automatically
as a part of this Agreement a legal, valid and enforceable provision as similar
in terms to such illegal, invalid or unenforceable provision as may be possible.
12.12 Governing Law. This Agreement shall be governed by
and construed in accordance with the Laws of the State of Georgia applicable to
a contract executed and performed in such State, without giving effect to the
conflicts of laws principles thereof.
12.13 Counterparts. This Agreement may be executed in any
number of counterparts, each of which will be deemed an original, but all of
which together will constitute one and the same instrument. Signatures delivered
as facsimiles shall be binding to the same extent as original signatures.
51
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
by the duly authorized officer of each party as of the date first above written.
JACADA LTD.
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
--------------------------------------
Title: CFO
--------------------------------------
JACADA, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
--------------------------------------
Title: CFO
--------------------------------------
JACADA (EUROPE), LIMITED
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
--------------------------------------
Title: Director
--------------------------------------
COMPUTER NETWORK TECHNOLOGY CORPORATION
By: /s/ Xxxx Xxxxxx
---------------------------------------------
Name: Xxxx Xxxxxx
--------------------------------------
Title: Chief Financial Officer
--------------------------------------
PROPELIS SOFTWARE, INC., f/k/a/
XXXXXXXXXX.XXX. INC. AND
CNT ACQUISITION I CORPORATION
By: /s/ Xxxx Xxxxxx
----------------------------------------------
Name: Xxxx Xxxxxx
--------------------------------------
Title: Chief Financial Officer
--------------------------------------
52
CNT INTERNATIONAL LTD.
By: /s/ Xxxx Xxxxxx
----------------------------------------------
Name: Xxxx Xxxxxx
---------------------------------------
Title: Director
---------------------------------------
53
