Exhibit 10.3
XXXX OF SALE
This Xxxx of Sale (the "Agreement or "xxxx of Sale") for the sale of the below
referenced Asset(s) listed on Attachment A ("Asset(s)") from Personify, Inc.
("Personify") to Accrue Software, Inc. ("Accrue") contains the entire
understanding of the parties with respect to such Assets.
Asset(s)/Description Purchase Price
See Attachment A $60,000.00
The parties understand and agree that, for good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the above referenced Asset(s) is purchased in "as is" and
"where is" condition. Packaging, shipping and import/export compliance is
the sole responsibility of Accrue. No representations or warranties are
made or extended regarding the Asset(s), except that: (i) Personify owns
all right, title and interest in, under and to the Asset(s), and has good
and lawful right to sell the Asset(s) and that all right, title and
interest in, under and to the Asset(s) are hereby vested in Accrue, free
and clear of any and all liens, security interests, claims, pledges,
encumbrances and rights of others of any nature whatsoever ("Liens"), (ii)
to the best of its knowledge, Personify hereby warrants that the Asset(s)
do not infringe, or constitute a misappropriation of any third party
intellectual property, and no claim is pending or threatened asserting
that the Asset(s) conflict with or infringe, or constitute a
misappropriation of the intellectual property rights of any third party.
Accrue has been informed and acknowledged the use of 3rd party software in
connection with the Assets, and understands that consents of, or new
licenses by, those licensors are Accrue's responsibility; and (iii)
Personify has taken reasonable steps to protect and maintain the
confidentiality of its intellectual property, and the Asset(s). The Third
Party Licenses are set forth in Schedule 1 attached hereto; however
Personify makes no representation that this is a complete list of such
licenses.
Furthermore, the full source and object code of the software modules and
components set forth in Attachment A, together with all improvements,
additions or modifications thereto, and derivative works thereof, and all
documentation relating thereto and all United States and foreign patents,
patent applications, patent licenses, trademarks, copyrights and copyright
registrations (and applications therefor), patentable and nonpatentable
and copyrighted and copyrightable inventions, trade secrets, processes,
designs, know-how and formulae owned by Personify and used in connection
with the software modules and components described above including (but
not limited to) those items set forth in Attachment A, and all files,
technical information, notes, Personify's confidential information, and
other proprietary information owned by and used by Personify in connection
with the Asset(s) has been sold, assigned, transferred and delivered to
Accrue.
Personify represents that, in its opinion and to the best of its
knowledge, the consideration provided by Accrue for the Asset(s) (i) is
fair and reasonable, (ii) was the highest and best offer for the Asset(s)
after competitive bidding at an open auction for the Asset(s) and (iii)
will provide greater consideration for the Asset(s) than would be provided
by any other practically available alternative. Personify is not entering
into this Agreement with the intent to defraud, delay or hinder its
creditors and the consummation of the transactions contemplated by this
Agreement, and the other agreements referenced in this Agreement, will not
have any such effect.
To the best of Personify's knowledge without any further obligation of
investigation: (i) the execution and delivery of this Agreement (and all
other agreements and instruments contemplated under this Agreement) by
Personify, the performance by Personify of its obligations hereunder and
thereunder, and the consummation by Personify of the transactions
contemplated hereby and thereby have been duly authorized by all necessary
action by the Board of Directors and stockholders of Personify, and no
other act or proceeding on the part of or on behalf of Personify or its
stockholders is necessary to
approve the execution and delivery of this Agreement and such other
agreements and instruments, the performance by Personify of its
obligations hereunder and thereunder and the consummation of the
transactions contemplated hereby and thereby; (ii) the signatory officers
of Personify have the power and authority to execute and deliver this
Agreement to consummate the transactions hereby contemplated and to take
all other actions required to be taken by Personify pursuant to the
provisions hereof; and (iii) this Agreement has been duly and validly
executed and delivered by Personify and constitutes, and the other
agreements and instruments to be executed and delivered by Personify
pursuant hereto, upon their execution and delivery by Personify, will
constitute (assuming, in each case, the due and valid authorization,
execution and delivery thereof by Buyer), legal, valid and binding
agreements of Personify, enforceable against Personify in accordance with
their respective terms.
To the best of Personify's knowledge, without any further obligation of
investigation: (i) neither the execution, delivery and performance of this
Agreement and all of the other agreements and instruments to be executed
and delivered pursuant hereto, nor the consummation of the transactions
contemplated hereby or thereby, will (a) conflict with, violate or result
in any breach of the terms, conditions or provisions of the Certificate of
Incorporation or Bylaws of Personify, (b) conflict with or result in a
violation or breach of, or constitute a default or require consent of any
person (or give rise to any right of termination, cancellation or
acceleration) under, any of the terms, conditions or provisions of any
contract, notice, bond, mortgage, indenture, license, franchise, permit,
agreement, lease or other instrument or obligation to which Personify is a
party or by which Personify or any of the Assets may be bound, (except
third party software licenses and source code escrow agreements) or (c)
violate any statute, ordinance or law or any rule, regulation, order,
writ, injunction or decree of any Governmental Entity applicable to
Personify or by which any properties or assets of Personify may be bound;
(ii) there are no claims, actions, suits, inquiries, proceedings, or
investigations against Personify, or any of its officers, directors or
stockholders, relating to the Assets or Personify's employees which are
currently pending or threatened, at law or in equity or before or by any
Governmental Entity, or which challenges or seeks to prevent, enjoin,
alter or materially delay any of the transactions contemplated hereby, nor
is Personify aware of any basis for such claims, actions, suits,
inquiries, proceedings, or investigations; (iii) Personify is not aware of
any facts pertaining to the Assets which affect the Business or the Assets
in a materially adverse manner or which will in the future affect the
Business or the Assets in a materially adverse manner; and (iv) neither
this Agreement nor any other agreement, exhibit, schedule or officer's
certificate being entered into or delivered pursuant to this Agreement
contains any untrue statement of a material fact or omits to state any
material fact necessary in order to make the statements contained in such
document not misleading.
Accrue hereby accepts the sale, transfer, conveyance and assignment of the
above referenced Asset(s). Personify agrees to take any and all actions
and to assist and cooperate with Accrue, in doing all things necessary,
proper or advisable, or as reasonably requested by Accrue, to consummate
and make effective, in the most expeditious manner practicable, the
transactions contemplated by this Xxxx of Sale, provided, however, that
Accrue shall be responsible for payment of all reasonable out-of-pocket
expenses, including consultant and professional fees, and shall draft any
and all documents, in connection with any request by Accrue with respect
to the foregoing.
This Agreement is executed and delivered in, and shall be construed and
enforced in accordance with the domestic laws of the State of California,
and shall be binding upon and shall inure to the benefit of the respective
successors and assigns of the parties to this Agreement. Personify hereby
covenants and agrees to warrant and defend the title to the
above-described Assets hereby conveyed, against the just and lawful claims
and demands of all persons whomsoever.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original and all of which together shall
constitute one and the same instrument.
The terms of this Agreement may only be modified by a written agreement
duly signed by persons authorized to sign agreements on behalf of the
parties hereto.
Accrue shall be responsible for any sales tax relating to this
transaction, if any. Personify will make all reasonable efforts to
transfer all software and source code referenced to in this Agreement
electronically.
Accrue shall, as soon as practicable, but in no event more than 30 days
after the date hereof, arrange for the shipment and transfer of the
Asset(s) into its possession.
IN WITNESS WHEREOF, the undersigned have caused their duly authorized officers
to execute this Xxxx of Sale on this __ day of October, 2002.
ACCRUE SOFTWARE, INC.
/s/ Xxxxxxxx X. Xxxxxx
____________________________
By: Xxxxxxxx X. Xxxxxx
Its: Chief Executive Officer
PERSONIFY, INC.
/s/ Xxxxxxx Xxxxx
____________________________
Company Name:
By:
Its:
ATTACHMENT A
1. SOURCE CODE
Source code and complete instructions for setting up the build environment
and building the product software are included for each of the following
product versions. The instructions will enable you to recreate the product
installation package that was included on the release CD. The full
contents of each release CD are also provided for completeness. The
release CDs include the product installation package plus additional 3rd
party software required to use the product (e.g. JDK, Perl, etc.).
PLEASE NOTE: THIS IS AN "AS-IS" SALE, EXCEPT AS SET FORTH IN THE AGREEMENT
AND ALL THIRD PARTY LICENSES WILL HAVE TO BE REVIEWED AND POTENTIALLY
RE-NEGOTIATED BY THE SUCCESSFUL PURCHASER OF THE IP.
1.1. PERSONIFY CI
- Personify CI 1.1.1 (released 7/2/2001) - This is the last
released version of Personify CI with support for Oracle
databases, but not SQL Server databases. It includes support
for Oracle databases only.
- Service Pack 1 for Personify CI 1.1.1 (released 12/4/2001) -
This is a required maintenance package for the CI 1.1.1
release. It is installed on top of a CI 1.1.1 installation.
- Personify CI 1.2 (released 2/28/2002) - This is the last
released version of Personify CI with support for SQL Server
2000 databases, but not Oracle databases. It includes support
for SQL Server 2000 databases only.
- Personify CI 2.0 (unreleased) - This is the latest version of
the Personify CI code base and was not released to customers.
The biggest enhancements in the 2.0 release is 1) a
substantially improved capability for extracting visitor
profiles out of the system, and 2) unified support for both
Oracle and SQL Server databases. All feature development and
unit testing have been completed for this release, but
functional and system testing have not been completed.
1.2. PERSONIFY SITE ANALYTICS
- Site Analytics 1.0.1 (released 8/10/2001) - This is the last
released version of Site Analytics with support for Oracle
databases, but not SQL Server databases. It includes support
for Oracle databases only. This version of Site Analytics
requires that Personify CI 1.1.1 be installed.
- Service Pack 1 for Site Analytics 1.0.1 (released 12/4/2001) -
This is a required maintenance package for the Site Analytics
1.0.1 release. It is installed on top of a Site Analytics
1.0.1 installation and also requires that Service Pack 1 for
CI 1.1.1 be installed.
- Site Analytics 1.2 (released 2/28/2002) - This is the last
released version of Site Analytics with support for SQL Server
databases, but not Oracle databases. It includes support for
SQL Server 2000 databases only. This version of Site Analytics
requires that Personify CI 1.2 is installed.
- Site Analytics 2.0 (unreleased) - This is the latest version
of the Site Analytics code base and was not released to
customers. There were only minor changes since the 1.2
release, but the version number was increased to stay
consistent with the CI numbering. All feature development and
unit testing have been completed for this release, but
functional and system testing have not been completed.
1.3. PERSONIFY ESSENTIALS
- Personify Essentials 2.5 - Personify Essentials is the
predecessor product to Personify CI. It contains a subset of
the functionality of Personify CI, is less scalable and is
built around a more proprietary architecture. A number of
customers chose to remain on this platform to avoid the
additional hardware cost and effort of upgrading to Personify
CI.
- Proactive for Profile Exchange - This is an add-on product for
Personify Essentials that enables you to extract profiles out
of the system.
- Proactive for Email - This is an add-on product for Personify
Essentials that is similar to Profile Exchange, but tailored
specifically for publishing profiles for email targeting.
- Accelerators - These are add-on modules for Personify
Essentials that provide additional reporting capabilities.
1.4. CONSTRUCTA
- Constructa is a product that allows you to automatically
generate a data warehouse database schema based on metadata
that is defined using the products graphical user interface.
Personify acquired the rights to this software when it
acquired Anubis, but it was never marketed or sold under the
Personify name.
2. PRODUCT DOCUMENTATION
- Source files for the product documentation of each product version
mentioned in the Source Code section above. All of the source files are in
FrameMaker format, except for Constructa, which is in Microsoft Word
format.
- Final documentation files in PDF format are also provided for each of the
released products.
3. ALL PATENT AND TRADEMARK APPLICATIONS
- Lists to be provided.
4. PRODUCT DEVELOPMENT & QUALITY ASSURANCE RESOURCES
4.1. PRODUCT MANAGEMENT DOCUMENTATION
- Product Requirements Documents are provided where available.
Not all product releases have complete Product Requirements
Documents.
- Tracking spreadsheet with all Personify CI and Site Analytics
enhancement requests. This is a detailed record of enhancement
requests, with information about when the enhancement was
requested, who requested it, and any supporting detail.
- Some initial requirements were defined for a Personify CI 3.0
release. The 3.0 release was planned to include major
innovations in the product's analysis and reporting
functionality. Whatever documentation was produced in planning
this release is included.
4.2. DEVELOPER DOCUMENTATION AND RESOURCES
- Engineering Technical Specifications - These are detailed
technical documents on the engineering design of Personify CI
and Site Analytics. Numerous documents exist, but some areas
are covered more thoroughly than others.
- "Check-in" notes for all developer changes - This provides a
historical record of changes made to the code base since
August 2000. This is provided as a Microsoft Outlook mail
archive.
- Photoshop master files for color schemes, graphics, and icons
used in the product.
4.3. QUALITY ASSURANCE DOCUMENTATION AND RESOURCES
- QA Test Plans and Test Cases - These are documents that
describe high-level test plans and detailed test cases used
for testing Personify CI and Site Analytics.
- QA Test Data - These are data sets that go along with the test
cases and are used for testing specific product functionality.
- A Linux server containing a customized Bugzilla database with
all outstanding bugs/issues logged against all released
versions of Personify CI and Site Analytics, and against the
2.0 release that was in development. The bug database is very
well organized, categorized, up-to-date, and easy-to-use.
5. PROFESSIONAL SERVICES DEPLOYMENT METHODOLOGY
- Hardware Calculator Spreadsheet - This is a sophisticated spreadsheet
model that enables you to estimate hardware requirements for Personify CI
and Site Analytics based on customer data requirements.
- A set of templates and best practices used for planning and executing a
Design for Measurability engagement. A Design for Measurability engagement
involves
analyzing a customer's web site management practices and making
recommendations to enable more effective use of Personify's analysis
capabilities.
- A set of tools, templates, and best practices used for planning and
executing a Personify CI deployment engagement.
6. EDUCATIONAL MATERIALS
- PowerPoint presentation slides used when training customers on Personify
CI and Site Analytics.
7. WHITE PAPERS
- A number of whitepapers covering a variety of topics about Personify's
products and technology. Topics covered include:
o 10 Challenges for a Behavior Profile Platform
o Behavioral OLAP
o Personify CI Architecture
o Personify CI Customer Guide - an overview of the deployment
methodology
o Personify CI's Privacy Features
o An explanation of the Discovered Segmentation algorithm
o Managing large Personify databases
8. MARKETING MATERIALS
- Source files for the following marketing documents:
o Personify CI Data Sheet
o Site Analytics Data Sheet
o Profile Direct Data Sheet (Profile Direct is the name used for
the extraction functionality of Personify CI. It was once
marketed as a separate product, but is now part of Personify
CI.)
o A number of customer case studies
9. SALES MATERIALS
- Question responses and other supporting materials used for responding to
RFPs
- A variety of PowerPoint sales presentations
- A historical record of sales leads
10. PERSONIFY CUSTOMERS
- Personify's historical customer list and any and all information relating
thereto, including current customers:
American Century
Bose Corporation
Continental Airlines
Xxxxxxxxx.xxx (a division of A&E Television Networks)
Marcel Xxxxxx
Xxxxxx Xxxxxx
The New York Times Digital
Volkswagen of America
- Account plans for a number of customers - Account plans identify customer
business goals and plans as they relate to the use of Personify products.
11. PERSONIFY EMPLOYEES
- We have compiled a list of key Personify employees with job titles - who
have expressed potential interest in working with the purchaser of the
Intellectual Property, and who have granted permission to have their
contact details provided to the successful purchaser on completion of the
deal.
12. LEGAL AND CONTRACT DOCUMENTATION
- Personify's latest contracts and templates, which have been tailored to
the Personify CI product, with the associated add-ons (Site Analytics,
Profile Direct). The Personify CI contracts can be used as discrete
agreements:
o Software License Agreement (with Exhibit defining Maintenance
and Support Services)
o Implementation Services Agreement
o Application Administration Outsourcing Services Agreement
(used when customer wants servers to reside at another hosting
facility, and software vendor will provide defined application
administration services)
o Evaluation/Demonstration Licenses defining limited
'non-commercial' use of these software products
- Physical copies of historical contracts and licenses, along with all Third
Party Licenses.
PLEASE NOTE THIS SECTION REFERS TO DOCUMENTATION ONLY AND NOTHING HEREIN SHALL
PROVIDE THAT PERSONIFY IS ASSIGNING ITS EXISTING CUSTOMER CONTRACTS TO ACCRUE.
ALSO NOTE THIS IS AN "AS-IS" SALE EXCEPT AS SET FORTH IN THE AGREEMENT, AND ALL
THIRD PARTY LICENSES WILL HAVE TO BE REVIEWED AND POTENTIALLY RE-NEGOTIATED BY
ACCRUE.
13. ASSOCIATED HARDWARE & FIXED ASSETS
MISCELLANEOUS DEVELOPMENT SOFTWARE SERVER
Hardware: Dell Power Edge 1300, Win NT 4.0 Enterprise Server, PIII 500MHz, 0.5GB
RAM, 10 GB Hard Disk
Purpose: Repository of general/miscellaneous development software used for the
development of Personify CI and Personify Essentials Server. Hosts the Personify
Essentials Server SourceSafe source control database and archive. This server
contains miscellaneous software used in the development of Personify software.
It also contains quality assurance test cases and automated test data.
SOURCE CONTROL SERVER
Hardware: Compaq Proliant 1850R, Linux, Dual PIII 600 MHz, 0.5 GB RAM, 4 x 18 GB
INT Hard Disk
Purpose: Hosts the Perforce source control database and archive used for the
development of Personify CI. Hosts the Perforce server software which each the
Perforce client connects to for access to the source archive.
SOFTWARE DEFECT AND ENHANCEMENT SERVER
Hardware: Dell OptiPlex GX-110 Tower, Linux OS, PIII 500MHz, 0.5 GB RAM, 15-20
MB Hard Disk
Purpose: Hosts the Bugzilla software defect and enhancement tracking software --
Apache and SQL servers. This server hosts Personify's bug tracking server and
controls updates to the database. The interface to the bug database is browser
based and this server also runs the web server.
PERSONIFY INTRANET SERVER
Hardware: Dell Power Edge 2450, Win 2000 Server, Dual XXXX 000 XXx, 0 XX RAM, 4
x 18 GB Hard Disk
Purpose: Hosts the Personify Intranet. The Personify Intranet is used to store
and serve many documents related to the development of Personify's software. It
contains marketing and technical requirement specifications, software design
specifications, software schedules, software status reports and progress
tracking documents, documents related to development process, and documents
related to development standards.
