ASSET PURCHASE AGREEMENT
By and Between
SPSS INC.
and
DELTAPOINT, INC.
Dated as of May 1, 1997
ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT, dated as of May 1, 1997 (the "Agreement"),
by and between DELTAPOINT, INC., a California corporation ("DeltaPoint") and
SPSS Inc., a Delaware corporation ("SPSS").
W I T N E S S E T H:
WHEREAS, DeltaPoint is engaged in the business of developing and
distributing software, including its DeltaGraph computer software products
("DeltaGraph"); and
WHEREAS, DeltaPoint desires to sell to SPSS, and SPSS desires to
purchase from DeltaPoint, certain of DeltaPoint's assets primarily relating to
DeltaGraph (the "Assets");
NOW, THEREFORE, in consideration of the premises, the mutual covenants
and agreements contained herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, and in reliance upon
the representations and warranties contained herein, the parties hereto agree as
follows:
ARTICLE I
TERMS OF PURCHASE AND SALE
1.1 PURCHASE AND SALE. (a) Except as set forth below or in
SECTION 1.4 and subject to the terms and conditions of this Agreement, on the
Closing Date (as defined herein), DeltaPoint hereby agrees to sell, convey,
assign, transfer and deliver to SPSS, and SPSS hereby agrees to purchase and
accept from DeltaPoint, all of DeltaPoint's assets (other than Excluded Assets)
primarily relating to and comprising DeltaGraph, including, but not limited to
all intellectual property related to its current and future development, sales
and related cash and accounts receivable generated from and after the effective
date of this Agreement as contemplated in SECTION 1.2 hereof (the "Effective
Date"), assets, software, deposits and properties of every kind, character and
description, whether tangible, intangible, or personal, and wherever located
(collectively, the "Assets"). The Assets shall include, but not be limited to,
the following:
(i) the DeltaGraph inventory and stock in trade existing as
of the Closing Date except as identified on
SCHEDULE 1.1(a), wherever located, owned by DeltaPoint on
the Closing Date (the "Inventory"), and all inventories
of DeltaGraph computer program code (in all media) and
DeltaGraph materials and program documentation;
(ii) all technical and descriptive materials (other than
Inventory) relating to the acquisition, design,
development, use or maintenance of DeltaGraph computer
code and DeltaGraph program documentation and materials
in any and all languages (the "Technical Documentation");
(iii) with respect to DeltaGraph, all of DeltaPoint's rights
and benefits (but excluding, unless otherwise
specifically provided herein, all duties and obligations
arising prior to the Closing Date) relating to
contractual rights, sales representative agreements,
distributor agreements, OEM agreements, license
agreements, vendors' warranties on DeltaGraph inventory,
orders on the books and work-in-process existing on the
Closing Date with respect to DeltaGraph, and other
commitments or arrangements, oral or written, with any
person or entity respecting the ownership, license,
acquisition, design, development, distribution,
marketing, use or maintenance of DeltaGraph computer
program code, related technical or user documentation,
and DeltaGraph data bases (the "Contracts").
(iv) with respect to DeltaGraph, all of DeltaPoint's sales and
related accounts receivable generated from and after the
Effective Date (net of trade discounts offered in the
ordinary course consistent with past practices),
including all license fees, maintenance fees and charges
due or to become due under the Contracts, and advance
payments, claims for refunds, deposits and other prepaid
items existing on the Closing Date;
(v) the name "DeltaGraph" and all variations thereof, and any
trade names, trademarks and service marks related thereto
(including registrations, licenses and applications
pertaining thereto), whether registered or at common law,
together with all goodwill associated therewith;
(vi) with respect to DeltaGraph, all of DeltaPoint's parts
lists, vendor lists, customer lists, catalogues,
promotion lists and marketing data and other compilations
of names and requirements, and trade secrets and other
material information used by DeltaPoint with respect to
DeltaGraph;
(vii) with respect to DeltaGraph, all of DeltaPoint's computer
programs, designs, processes, drawings, schematics,
blueprints, copyrights, copyright applications,
inventions, processes, know-how, or trade secrets or
proprietary information, patents and patent applications
related to DeltaGraph;
(viii) cash generated from sales and collection of related
accounts receivable from and after the Effective Date
with respect to DeltaGraph and all of DeltaPoint's
rights to receive payment on the Closing Date with
respect to DeltaGraph (other than the right to receive
payment in respect of Excluded Assets); and
(ix) all other intangible property owned by DeltaPoint on the
Closing Date and used in connection with DeltaGraph and
all goodwill associated therewith.
(b) The term "Excluded Assets" means:
(i) all rights of DeltaPoint under this Agreement; the
Management Agreement (the "Management Agreement")
between DeltaPoint and SPSS dated the date hereof with
respect to DeltaPoint's management of the DeltaGraph
business during the term thereof; and the agreements,
instruments and certificates delivered in connection
with this Agreement;
(ii) cash on hand or in banks owned by DeltaPoint arising out
of operations of DeltaGraph during the period prior to
the Effective Date;
(iii) all accounts receivable of DeltaPoint arising out of
operations of DeltaGraph during the period prior to the
Effective Date;
(iv) all owned real property and other owned interests in
real property of DeltaPoint, in each case together with
DeltaPoint's right, title and interest in all buildings,
improvements, fixtures and all other appurtenances
thereto;
(v) all leasehold interests in real property of DeltaPoint
and the related Contracts, in each case together with
DeltaPoint's right, title and interest in all buildings,
improvements, fixtures and all other appurtenances;
(vi) all other personal property (including machinery,
equipment and furniture, but excluding Inventory and
Technical Documentation) of DeltaPoint whether or not
used, intended to be used, or held for use primarily by
or for the DeltaGraph business;
(vii) all rights relating to any liabilities of DeltaPoint or
the DeltaGraph business not constituting Assumed
Liabilities (hereinafter, collectively, the "EXCLUDED
LIABILITIES").
With respect to any purchase by SPSS of any of the personal property (other than
Inventory and Technical Documentation) used, intended to be used, or held for
use primarily by or for the DeltaGraph business, it is understood that such
purchase shall be effected pursuant to a separate agreement with separate
consideration agreed in respect thereof as the parties may agree.
1.2 TIME AND PLACE OF CLOSING. Subject to the terms and conditions
of this Agreement, the consummation of the transactions contemplated hereby (the
"Closing") shall take place at the offices of Xxxx & Xxxxxxx, 000 X. Xxxxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxx at 9:00 a.m. on June 27, 1997 (the "Closing Date") or
at such other place or time as the parties may agree and, for all purposes,
shall be deemed to be effective as of May 1, 1997.
1.3 PURCHASE PRICE; ADDITIONAL CASH PAYMENT. At the Closing, as
consideration for the sale and transfer of the Assets to SPSS, SPSS shall pay
DeltaPoint Nine Hundred Ten Thousand and No/100 Dollars ($910,000.00) (the
"Purchase Price") by wire transfer of immediately available funds to an account
designated by DeltaPoint by written notice to SPSS given not less than three
business days prior to the Closing Date.
1.3.1 ALLOCATION OF PURCHASE PRICE. SPSS and DeltaPoint agree
that the Purchase Price shall be allocated after the Closing Date in a manner
mutually acceptable to the parties. SPSS and DeltaPoint agree that such
valuation and allocation to be agreed upon post-closing will be determined in
good faith by arm's length negotiation and in the judgment of the parties will
properly reflect the fair market value of the Assets and the consideration
therefor transferred pursuant to this Agreement. SPSS and DeltaPoint hereby
agree to report the purchase and sale of the Assets for federal income tax
purposes pursuant to Section 1060 of the Internal Revenue Code of 1986, as
amended (the "Code"), on a timely basis, in accordance with such allocation and
to give the other prompt written notice of any assertion or claim by the
Internal Revenue Service that the Purchase Price allocated to any of the Assets
in accordance herewith is incorrect or is otherwise unacceptable for federal
income tax purposes. SPSS and DeltaPoint shall also file on a timely basis any
amendments to such report required to be filed as a result of any adjustment in
the Purchase Price allocation.
1.3.2 ADDITIONAL CASH PAYMENT. (a) In addition, within 20
days after the Closing Date, and provided that the Qualified Cost of Goods Sold
(defined below) in respect of DeltaGraph software products sold during the
period commencing on the Effective Date and ending on the Closing Date is
greater than the Cash Collections (defined below) due SPSS, as contemplated by
SECTION 1.1(a)(viii) hereof, SPSS shall pay to DeltaPoint (in the same manner as
provided in SECTION 1.3) an amount equal to the Qualified Cost of Goods Sold in
respect of DeltaGraph software products sold during the period commencing on the
Effective Date and ending on the Closing Date LESS the amount of any cash
collections (including the amount of any sales tax and shipping and handling
actually collected) actually received by DeltaPoint in respect of such sales for
such period as contemplated by SECTION 1.1(a)(viii) hereof (the "Cash
Collections"). If, however, the Cash Collections exceed the Qualified Cost of
Goods Sold for such period, DeltaPoint shall, within 20 days of the Closing
Date, pay to SPSS (in the same manner as provided in SECTION 1.3) an amount
equal to the Cash Collections LESS the Qualified Cost of Goods Sold in respect
of DeltaGraph software products sold during the period commencing on the
Effective Date and ending on the Closing Date. "Qualified Cost of Goods Sold"
means, in respect of any DeltaGraph software product sales, the related cost of
goods sold consisting of direct materials, shipping and handling charges,
contract manufacturing costs to convert raw materials into finished products,
and royalties, as determined in accordance with DeltaPoint's past practices PLUS
(i) the amount of the related sales tax and shipping and handling and (ii) the
related marketing and other expenditures as may be reasonably agreed upon by
SPSS and DeltaPoint.
(b) On the date which is 15 days after the Closing Date, DeltaPoint
shall deliver to SPSS a good faith calculation setting forth in reasonable
detail the amount of the additional cash payment to be made pursuant to SECTION
1.3.2(a). In the event that SPSS shall in good faith dispute the amount of such
payment, SPSS shall pay to DeltaPoint (or DeltaPoint shall pay to SPSS, as the
case may be) that portion of payment with respect to which there is no dispute
and the parties agree that the payments to be made under the Management
Agreement shall be adjusted to reflect the resolution of such dispute.
1.4 ASSUMPTION OF LIABILITIES AND OBLIGATIONS. SPSS agrees that,
effective upon the Closing, it shall assume only the liabilities and obligations
of DeltaPoint related to Assets described on SCHEDULE 1.4 attached hereto;
PROVIDED, HOWEVER, in no event shall SPSS assume liabilities or obligations
relating to royalties or other payments due and owing thereunder prior to the
Closing Date or material obligations or liabilities not disclosed to SPSS
(collectively, the "Assumed Liabilities"), and SPSS shall have no other duty or
obligation. It is expressly understood and agreed that SPSS shall not be liable
for Excluded Liabilities.
Unless specifically stated to the contrary, this Agreement shall not
constitute an agreement or an attempted agreement to transfer, sublease or
assign any Assumed Liability or any claim or right arising thereunder or
resulting therefrom if any such attempted transfer, sublease or assignment,
without the consent of any other party thereto, would constitute a
breach of such Assumed Liability or in any way affect the rights of SPSS
thereunder. DeltaPoint shall, between the date hereof and the Closing and, if
requested by SPSS, after the Closing, use all reasonable efforts to obtain the
consent of any such party to the transfer, sublease or assignment thereof by
DeltaPoint to SPSS hereunder in all cases in which such consent is required for
transfer, sublease or assignment. If any such consent is not obtained, or if
any attempted assignment thereof would be ineffective or would affect the rights
of DeltaPoint thereunder such that SPSS would not in fact receive all rights
related to an Assumed Liability, DeltaPoint shall, with the reasonable
assistance of SPSS, at DeltaPoint's expense, perform such Assumed Liability for
the account of SPSS or otherwise cooperate with SPSS at DeltaPoint's expense in
any arrangement necessary or desirable to provide for SPSS the benefits under
any such Assumed Liability, including, without limitation, enforcement for the
benefit of SPSS of any and all rights of DeltaPoint against the other party
thereto arising out of the breach, termination or cancellation of such Assumed
Liability by such other party or otherwise. With respect to those Assumed
Liabilities that are license agreements as to which licensee consent is required
for DeltaPoint to assign such license agreements to SPSS, (i) SPSS shall and
hereby does grant DeltaPoint such licenses as DeltaPoint requires to be in
compliance with such license agreements and (ii) DeltaPoint and SPSS shall enter
into good faith negotiations with such licensee for the assignment of such
license agreement to SPSS.
1.5 LIABILITIES NOT ASSUMED. Pursuant to Article X, DeltaPoint shall
indemnify, defend and hold SPSS harmless from all Excluded Liabilities and
DeltaPoint's legal fees and other expenses incurred in connection with the
transactions contemplated hereby, and all claims, suits, actions, losses,
damages, costs and expenses (including, without limitation, reasonable
attorneys' fees) arising therefrom or from any failure by DeltaPoint to pay or
discharge such liabilities and obligations as and when they become due.
1.6 TAXES. SPSS shall not be responsible for, or suffer a reduction
in assets to be received by it for, any income (of DeltaPoint), California
sales, use, California excise or other taxes of any kind or arising from this
purchase on the Closing Date other than those listed on SCHEDULE 1.4, which SPSS
is expressly assuming pursuant to this Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF DELTAPOINT
As of the date hereof and as of the Closing Date, DeltaPoint represents and
warrants to SPSS as follows:
2.1 ORGANIZATION AND QUALIFICATION. DeltaPoint is a corporation duly
organized, validly existing and in good standing under the laws of the State of
California and has the corporate power and authority to enter into this
Agreement, to consummate the transactions contemplated hereby, to own or lease
the Assets which it presently owns or leases and to carry on its business as
presently conducted. DeltaPoint is duly licensed or qualified to do business as
a foreign corporation, and is in good standing in every foreign jurisdiction in
which it is required to be so licensed or qualified, except to the extent where
such failure to be so licensed or qualified would not have a material adverse
effect on DeltaPoint or its ability to consummate the transactions contemplated
by this Agreement. DeltaPoint has no subsidiaries or other entities controlled
by or under common control with DeltaPoint.
2.2 AUTHORITY. DeltaPoint has full power, capacity and authority
(corporate or otherwise) to execute and deliver this Agreement and to consummate
the transactions contemplated hereby. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby have been
duly and validly authorized and approved by all necessary action on the part of
the Board of Directors of DeltaPoint, and no other proceedings (corporate or
otherwise) on the part of either DeltaPoint or its shareholders are necessary to
authorize this Agreement or to consummate the transactions contemplated hereby.
This Agreement and the other agreements contemplated by this Agreement have been
duly and validly executed and delivered by DeltaPoint, and each constitutes a
legal, valid and binding agreement of DeltaPoint, enforceable against DeltaPoint
in accordance with their respective terms, except as their obligations
thereunder may be limited by bankruptcy, insolvency or other similar laws
affecting the enforcement of creditors' rights in general and by general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
2.3 CONSENTS AND APPROVALS. Except as set forth in SCHEDULE 2.3
hereto, there is no authorization, consent, order or approval of, or notice to
or filing with, any individual or entity required to be obtained or given in
order for DeltaPoint to consummate the transactions contemplated hereby and
fully perform its obligations hereunder.
2.4 ABSENCE OF CONFLICTS. The execution, delivery and performance by
DeltaPoint of this Agreement and the consummation by DeltaPoint of the
transactions contemplated hereby will not, with or without the giving of notice
or lapse of time or both, (i) violate any provision of law, statute, rule or
regulation to which DeltaPoint is subject, (ii) violate any order, judgment or
decree applicable to DeltaPoint, (iii) conflict with or result in a breach or
default under any term or condition of the Articles of Incorporation or By-Laws
of DeltaPoint, or any material agreement or other instrument to which DeltaPoint
is a party or by which it is bound, or to which any of the Assets are subject,
(iv) result in the creation or imposition of any lien, pledge, claim, security
interest or encumbrance of any nature whatsoever on the Assets, or (v) cause, or
give any person contractual grounds to cause, the maturity of the Assumed
Liabilities to be accelerated.
2.5 FINANCIAL INFORMATION; ACCOUNTS RECEIVABLE. DeltaPoint has
previously delivered to SPSS the financial information set forth on SCHEDULE
2.5, which includes all available information with respect to DeltaGraph's
revenue, inventory, receivables, product line profit and loss (except for
allocated overhead items and other items set forth on SCHEDULE 2.5(a)), sales
return reserves and product line budget (except for allocated overhead items and
other items set forth on SCHEDULE 2.5(a)). Such financial information is
accurate and in accordance with the books and records of DeltaPoint.
SCHEDULE 2.5 contains a correct and complete list of the sales and
related collections of accounts receivable of DeltaPoint relating to the Assets
beginning the Effective Date through the date stated thereon, which is the most
recent practicable date. There have been no changes in such accounts receivable
except as may have occurred in the ordinary course of business since such date.
Except as set forth on SCHEDULE 2.5, all such accounts receivable are valid,
genuine and subsisting; DeltaPoint has not been notified in writing that any
account receivable debtor is contesting or setting off against any such accounts
receivable; and all such accounts receivable are collectible, except for a
reasonable allowance for uncollectible accounts not exceeding $5,000.00.
Except as described on SCHEDULE 2.5, DeltaPoint is not in default in
respect of any term or condition of any indebtedness or liability relating to
the Assets.
2.6 ABSENCE OF UNDISCLOSED LIABILITIES. Except for Excluded Assets
and Assumed Liabilities and other liabilities incurred by DeltaPoint in the
ordinary course consistent with past practice (which liabilities are not being
assumed by SPSS hereunder), to the best of DeltaPoint's knowledge, DeltaPoint
does not have any liabilities or obligations relating to the Assets, whether
accrued, absolute or contingent, determined or undetermined, or whether due or
to become due (including, without limitation, obligations as guarantor).
DeltaPoint knows of no reasonable basis for the assertion of any claim or
liability relating to the Assets or DeltaPoint's business relating thereto, and
is not aware of any occurrence or fact that has or might have an adverse effect
upon the Assets.
2.7 CURRENT LIABILITIES/RECEIVABLES. The accounts and trade payables
and accounts receivable of DeltaPoint with respect to the Assets as of April 30,
1997, and those incurred between April 30, 1997 and the Closing Date, were
incurred or realized in the ordinary course of business and, with respect to
accounts and trade payables, were and are in amounts consistent in all material
respects with historical levels of accounts and trade payables of DeltaPoint
with respect to the Assets. There has been no material adverse change in the
amount or nature of DeltaPoint's accounts receivable relating to the Assets
since April 30, 1997.
2.8 ABSENCE OF CERTAIN CHANGES OR EVENTS. Except as set forth on
SCHEDULE 2.8, since April 30, 1997, there has not been (a) any material damage,
destruction or casualty loss to the Assets (whether covered by insurance or not)
outside the ordinary course of business; (b) any entry into any transaction,
commitment or agreement (including, without limitation, any borrowing) material
to the Assets, or relating to the Assets and outside the ordinary course of
business of DeltaPoint; (c) any sale, transfer or other disposition of the
Assets to any party, except for payment of obligations incurred, and sale of
products, in the ordinary course of business consistent with past practices;
(d) any amendment or termination of any material Contract or agreement relating
to the Assets to which DeltaPoint is a party or any termination or waiver of any
other rights of value relating to the Assets other than any amendment,
termination or waiver in the ordinary course consistent with past practices; (e)
any failure by DeltaPoint to pay its accounts payable or other obligations
relating to the Assets in the ordinary course of business; (f) any pledge of any
of the Assets or any action or inaction which would subject the Assets to any
lien, security interest, mortgage, pledge, claim, charge or other encumbrance of
any kind; (g) the incurrence of any liability or obligation by DeltaPoint
related to the Assets, except for liabilities incurred in the ordinary course of
business; (h) any actual or threatened termination or cancellation of, or
modification or change in, any business relationship with any customer or
customers of DeltaPoint relating to the Assets or other agreement or arrangement
involving or related to the Assets which if terminated or cancelled would
materially and adversely effect the Assets; (i) any other event or condition of
any character which materially and adversely affects the Assets; or (r) any
agreement, whether in writing or otherwise, to take any action described in this
SECTION 2.8.
2.9 PERSONAL PROPERTY; INVENTORIES. DeltaPoint has good and
marketable title to, and is in possession of or has control over, all of the
personal property comprising the Assets, none of which is held under or subject
to any pledge, lien, lease, encumbrance, conditional sales contract or other
security arrangement except to the extent described in SCHEDULE 2.9(a) hereto.
DeltaPoint's inventories of DeltaGraph are as shown on SCHEDULE 2.9(b) hereto
and are in good and merchantable condition and are of a quality suitable and
usable or saleable in the ordinary course of business for the purposes for which
such inventories are intended (other than any work in process which is subject
to completion). There has been no material adverse change in DeltaPoint's
inventories of DeltaGraph since April 30, 1997.
2.10 PATENTS, TRADEMARKS, ETC. SCHEDULE 2.10 hereto contains an
accurate and complete description of all domestic and foreign trademark
registrations, copyright registrations and all applications therefor with
respect to DeltaGraph (the "Registered Intellectual Property"), presently owned
or held by DeltaPoint or under which DeltaPoint owns or holds any license, or in
which DeltaPoint owns or holds any direct or indirect interest. To the best
knowledge of DeltaPoint, no DeltaGraph products manufactured, distributed or
sold by DeltaPoint, nor any of DeltaPoint's activities, conflict with, infringe
or otherwise violate any patents, trademarks or copyrights, or any other rights,
of any individual or entity. DeltaPoint has the sole and exclusive right to
use, has the right and power to sell, and has taken reasonable measures to
maintain and protect the Intellectual Property (as defined herein); except as
set forth on SCHEDULE 2.10, no claims have been asserted by any individual or
entity with respect thereto or challenging or questioning the validity or
effectiveness of any license or agreement with respect thereto, and, to the best
knowledge of DeltaPoint, there is no valid basis for any such claim. With
respect to the Assets being purchased hereto, DeltaPoint is not using
confidential information or trade secrets of any former employer of any past or
present employees engaged in DeltaPoint's business. The items described in
SCHEDULE 2.10 and DeltaPoint's other intellectual property relating to
DeltaGraph (including, without limitation, trademarks, service marks, logos,
trade names, assumed names, trade secrets, know-how, technology, inventions,
processes, designs and copyrights) (collectively, "Intellectual Property") are
adequate to conduct DeltaPoint's business with respect to DeltaGraph as
presently conducted. Upon consummation of the transactions contemplated
hereby, SPSS will acquire good and marketable title to all of the Intellectual
Property and the goodwill associated therewith.
2.11 EMPLOYEES. All personnel, including employees, agents,
consultants and contractors, who have contributed to or participated in the
conception and development of the Intellectual Property on behalf of DeltaPoint
either (a) were at such time parties to "work-for-hire" arrangements or
agreements with DeltaPoint, in accordance with applicable federal and state law,
that has accorded DeltaPoint full, effective, exclusive and original ownership
of all intellectual property thereby arising, or (b) have executed appropriate
instruments of assignment, which are still in full force and effect, in favor of
DeltaPoint, as assignee, that have conveyed to DeltaPoint full, effective and
exclusive ownership of all intellectual property thereby arising. DeltaPoint
does not own or have any right, license or interest, whether as a licensee,
licensor or otherwise, in any copyrights, patents, applications for copyrights
or patents, trade secrets, inventions, processes and designs or in any
trademarks, service marks, trade names, or applications for them related to
DeltaGraph, except as listed or described in SCHEDULE 2.10. No employee of
DeltaPoint is in violation of (i) any term of any employment contract, any "work
for hire" arrangement or agreement, or any patent disclosure agreement or (ii)
any other contract or agreement, or any restrictive covenant relating to the
rights of any such employee to use trade secrets or proprietary information of
others.
2.12 SOURCE CODE. Except as set forth in SCHEDULE 2.12, DeltaPoint
owns all rights, title and interest in and to the source code for DeltaGraph
constituting a portion of the Assets and has not distributed any copies of the
source code for DeltaGraph constituting a portion of the Assets to any third
parties, and DeltaPoint has not agreed to pay to any individual or entity any
royalty, commission or other amount on account of sales of DeltaGraph.
DeltaPoint owns all rights, title and interest in and to all localizations and
translations of manuals and other technical documentation.
2.13 CONTRACTS AND COMMITMENTS.
(a) Other than standard form customer and distributor
contracts entered into in the ordinary course of business, and except as set
forth in SCHEDULE 2.9(a), 2.12, 2.13 and 2.22 hereto, DeltaPoint is not a party
to any material agreements, contracts, guarantees, commitments, restrictions or
instruments of any kind relating to the Assets ("Scheduled Contracts"). True
and correct copies of all Contracts listed on SCHEDULES 2.9(a), 2.12, 2.13 and
2.22 hereto have been made available to SPSS at a reasonable time prior to
Closing. All of the Scheduled Contracts are valid and binding obligations of
DeltaPoint, enforceable in accordance with their respective terms to the extent
permitted by applicable law, and are in full force and effect and DeltaPoint is
in compliance therewith. None of the Scheduled Contracts has, or may to the
best of DeltaPoint's knowledge have, a material adverse effect on the Assets.
To DeltaPoint's knowledge, no other party to any of the Scheduled Contracts is
in material default or breach thereof. True and correct copies of each standard
form customer and distributor contract currently in use by DeltaPoint in the
conduct
of its business relating to the Assets are attached to SCHEDULE 2.13.
DeltaPoint has not agreed with any customer or distributor to make any variation
in any such contract which could have a material adverse effect on the Assets.
(b) DeltaPoint is not in default, and there is no basis for
any valid claim of default, in any material respect under any of the Scheduled
Contracts.
2.14 LICENSES AND ROYALTIES. Except as set forth on SCHEDULE 2.12
hereto, DeltaPoint is not a licensee under any license with respect to the
Assets, including, without limitation, licenses with respect to source codes
used or to be used in DeltaGraph, and does not have an obligation to pay
royalties to any third party in connection therewith, and DeltaPoint has not
granted to any individual or entity any rights with respect to the source codes
for DeltaGraph. Notwithstanding anything to the contrary contained herein,
DeltaPoint has paid any and all royalties due through the Effective Date under
such licenses and, with respect to that certain Software Publishing Agreement
dated as of June 30, 1992, as same may have been amended, between DeltaPoint and
Halcyon Software, Inc. (the "Halcyon Agreement"), no royalty is due or
applicable to DeltaGraph. No royalties are due or payable with respect to
DeltaGraph under that certain Small Developer Porting Technology License
Agreement dated as of June 7, 1994 between DeltaPoint and Altura Software, Inc.
2.15 ADEQUACY OF DOCUMENTATION. The Technical Documentation
includes the source code, system documentation, statements or principles of
operation, and schematics for DeltaGraph currently maintained or licensed by
DeltaPoint, as well as any pertinent commentary or explanation that may be
necessary to render such materials understandable and usable by a trained
computer programmer familiar with the relevant compilers, tools and platform.
2.16 THIRD-PARTY COMPONENTS IN SOFTWARE PROGRAMS. Deltapoint has
validly and effectively obtained the right and license to use, copy, modify and
distribute any third-party programming and materials contained in Deltagraph and
the technical documentation pursuant to licenses from third parties as set forth
in Schedule 2.16.
Except as otherwise provided in SCHEDULE 2.16, DeltaGraph and the
Technical Documentation contain no other programming or materials in which any
third party may claim superior, joint or common ownership, including any right
or license, and, do not contain derivative works of any programming or materials
not owned in their entirety by DeltaPoint.
2.17 THIRD-PARTY INTERESTS OR MARKETING RIGHTS IN DELTAGRAPH
SOFTWARE PROGRAMS. All of DeltaPoint's standard form customer contracts
constitute only end-user agreements, each of which grants the end-user
thereunder solely the non-exclusive right and license to use DeltaGraph and
related user documentation, for internal purposes only. There are no contracts,
agreements, licenses or other commitments or arrangements in effect with respect
to the development, marketing, distribution, licensing, or promotion of
DeltaGraph, the Technical Documentation, or DeltaPoint's Intellectual Property
with any independent
salesperson, distributor, sublicensor, or other remarketer or sales
organization, except for Contracts identified in SCHEDULES 2.12, 2.13 and 2.16.
2.18 NO VIRUS WARRANTIES. DeltaPoint represents and warrants that
DeltaGraph, as delivered to SPSS, shall be free of any passwords, keys, security
devices or trap doors, and any computer instructions (including, but not limited
to, computer instructions commonly referred to as Trojan Horses, anomalies,
worms, self-destruct mechanisms, or time/logic bombs) which are intended to
interfere with or frustrate the use of the software products, any portion
thereof, or other software or computer hardware, whether or not currently in
effect with respect to any copy of DeltaPoint's software products.
2.19 PURCHASED SOFTWARE; PHYSICAL MEDIA. The software purchased as
part of the Assets, other than that currently under development (the "Purchased
Software"), will operate in all material respects in accordance with the
Technical Documentation. Each copy of Purchased Software delivered by
DeltaPoint is and, at the time of the Closing Date, will be free from physical
defects in the media that tangibly embodies the copy.
2.20 GOVERNMENT CONTRACTS. DeltaPoint has not entered into any
contracts with respect to the Assets with any independent or executive agency,
division, subdivision, audit group or procuring office of the federal
government, including any prime contractor of the federal government and any
higher level subcontractor of a prime contractor of the federal government, and
including any employees or agents thereof, in each case acting in such capacity.
2.21 PRODUCT WARRANTIES AND LIABILITIES. DeltaPoint has not given
or made any express or implied warranties to third parties with respect to any
Assets licensed or sold or services performed by it related thereto, except for
the limited warranties stated in DeltaPoint's standard form customer contracts,
in the forms attached to SCHEDULE 2.13, with modifications that, in the
aggregate, would not have a material adverse effect on the Assets. DeltaPoint
does not have any knowledge of any fact or of the occurrence of any event
forming the basis of any present or future claim against DeltaPoint relating to
the Assets whether or not fully covered by insurance, for any material liability
on account of products liability or on account of any express or implied product
warranty, except for warranty obligations and product returns in the ordinary
course of business.
2.22 INSURANCE. SCHEDULE 2.22 hereto is a description of all
insurance policies held by DeltaPoint concerning its DeltaGraph business,
operations and properties. All these policies are in the respective face
amounts set forth in SCHEDULE 2.22, and such insurance is adequate and
appropriate in accordance with sound business practices. Each of the insurance
policies referred to in SCHEDULE 2.22 is in force and the premiums with respect
thereto are fully paid through the dates indicated thereon.
2.23 LITIGATION AND ADMINISTRATIVE PROCEEDINGS. Except as set
forth in SCHEDULE 2.23 hereto, there is no claim, action, suit, proceeding or
investigation in any court
or before any governmental or regulatory authority pending or, to DeltaPoint's
knowledge, threatened against or affecting DeltaPoint relating to the Assets or
which seeks to enjoin or obtain damages in respect of the transactions
contemplated hereby. DeltaPoint does not know of any basis for any such claim,
action, suit, proceeding or investigation. No claim, action, suit, proceeding
or investigation set forth in SCHEDULE 2.23 could, if adversely decided, have a
material adverse effect on the Assets.
2.24 TAX MATTERS. None of the Assets (i) is tax-exempt use
property within the meaning of Section 168(h) of the Code, (ii) directly or
indirectly secures any debt the interest on which is tax exempt under Section
103(a) of the Code, (iii) is required to be treated as property owned by another
under Section 168(f) of the Code, or (iv) is a United States Real Property
Interest within the meaning of Section 897 of the Code. The Assets described in
SECTIONS 1.1(a)(ii), 1.1(a)(v) and 1.1(a)(vii) hereof are, and at all times
during and since their manufacture have been, located solely in California, and,
notwithstanding the provisions of Section 1.2 hereof, the delivery of the Assets
(except for certain Inventory) to SPSS in accordance with the terms hereof shall
take place solely in California.
2.25 ENVIRONMENTAL AND SAFETY MATTERS. DeltaPoint has, with
respect to the Assets, complied in all material respects with all laws relating
to environmental matters ("Environmental Laws") including, but not limited to:
air pollution; water pollution; noise control; on-site or off-site solid waste
storage, treatment, discharge, disposal or recovery; toxic and hazardous
chemical reporting; or employee safety and hazardous material transportation
training, information, reporting, and warning provisions. No notice of
violation of or potential liability resulting from any such Environmental Laws,
or orders with respect thereto, has been received, nor is any such notice
pending or to the best of its knowledge threatened.
2.26 LICENSES AND PERMITS. DeltaPoint has all governmental
licenses and permits and other governmental authorizations and approvals
required for the conduct of its businesses as presently conducted with respect
to the Assets ("Permits"). SCHEDULE 2.26 hereto includes a list of all material
Permits.
2.27 RELATIONS WITH SUPPLIERS AND CUSTOMERS. DeltaPoint is not
required to provide any bonding or other financial security arrangements in
connection with any transaction with any customer or supplier with respect to
the Assets. Except as set forth on SCHEDULE 2.27, DeltaPoint has not received
any notice that any customer or supplier of DeltaPoint will not do business with
SPSS after the consummation of the transactions contemplated hereby.
2.28 INTERESTS IN COMPETITORS, SUPPLIERS AND CUSTOMERS. Except as
set forth on SCHEDULE 2.28, no officer, director of DeltaPoint or outside
director, each to the best of DeltaPoint's knowledge, or any entity controlled
by or under common control with DeltaPoint has any ownership interest in any
competitor, supplier or customer of DeltaPoint or any property used in the
operation of the business of DeltaPoint, as same may relate to the
Assets.
2.29 BROKERS AND FINDERS. Except as described on SCHEDULE 2.29,
DeltaPoint has not employed any broker, finder or investment banker, or incurred
any liability for any brokerage fees, commissions or finders' fees in connection
with this Agreement or the transactions contemplated hereby.
2.30 TITLE TO ASSETS; NO LIENS. Except as set forth on SCHEDULE
2.9(a) AND (b), DeltaPoint has good and marketable title to, and is in
possession of or has control over, all of the Assets, free and clear of all
liabilities, liens, security interests, mortgages, pledges, claims, judgments,
exceptions, charges and encumbrances and obligations of every kind and nature.
Except as indicated in SCHEDULE 2.9(a) AND (b), there are no defects or other
conditions with respect to the Assets which would necessitate repairs,
reconditioning or replacement thereof; PROVIDED, HOWEVER, that DeltaPoint makes
no representation or warranty that DeltaGraph is not and will not be or become
obsolete.
2.31 NECESSARY PROPERTY. There exists no condition, restriction or
reservation affecting the title to or utility of the Assets or the Assumed
Liabilities which would prevent SPSS in any material respect from utilizing the
Assets or the Assumed Liabilities, or any part thereof, to the same full extent
that DeltaPoint might continue to do so if the sale and transfer contemplated
hereby did not occur; PROVIDED, HOWEVER, that DeltaPoint makes no representation
or warranty with respect to matters which are unique to SPSS and which are
unrelated to the title or utility of the Assets or Assumed Liabilities, but
which may affect SPSS's utilization thereof.
2.32 CURRENT PRODUCTS. All of DeltaPoint's software products and
user documentation relating to the Assets and currently offered for license or
maintained or supported by DeltaPoint (collectively, "Current Products") are
listed on SCHEDULE 2.32 hereto. All of the Current Products are included in the
Assets and, effective upon consummation of the Closing, SPSS will obtain and
hold the complete and exclusive right, title and interest in and to all of the
Current Products.
2.33 FULL DISCLOSURE. To the best of DeltaPoint's knowledge, no
representation or warranty to SPSS contained in this Agreement, and no statement
contained in the disclosure schedules or any certificate delivered by DeltaPoint
to SPSS pursuant to the provisions hereof, 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 not misleading.
2.34 BULK SALES. The Assets constitute less than fifty percent
(50%) of the total equipment and inventory of DeltaPoint, as contemplated by the
California Uniform Commercial Code-Bulk Sales.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SPSS
As of the date hereof and as of the Closing Date, SPSS represents and
warrants to DeltaPoint as follows:
3.1 ORGANIZATION AND QUALIFICATION. SPSS is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has the corporate power and authority to enter into this Agreement
and to consummate the transactions contemplated hereby.
3.2 AUTHORITY. The execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby have been duly and
validly authorized by SPSS, and no other corporate proceedings on the part of
SPSS are necessary to authorize this Agreement or to consummate the transactions
contemplated hereby. This Agreement has been duly and validly executed and
delivered by SPSS and constitutes legal, valid and binding agreement of SPSS.
3.3 CONSENTS AND APPROVALS. Except as set forth in SCHEDULE 3.3
hereto, there is no authorization, consent, order or approval of, or notice to
or filing with, any individual or entity required to be obtained or given in
order for SPSS to consummate the transactions contemplated hereby and fully
perform its obligations hereunder, excluding, however, any authorization,
consent, order, approval or filing which DeltaPoint is required to obtain or
give.
3.4 ABSENCE OF CONFLICTS. The execution, delivery and performance
by SPSS of this Agreement and the consummation by SPSS of the transactions
contemplated hereby will not, with or without the giving of notice or the lapse
of time, or both, (i) violate any provision of law, statute, rule or regulation
to which SPSS is subject, (ii) violate any order, judgment or decree applicable
to SPSS or (iii) conflict with, or result in a breach or default under, any term
or condition of the Certificate of Incorporation or By-Laws of SPSS or any
agreement or other instrument to which SPSS is a party or by which SPSS is
bound.
3.5 LITIGATION AND ADMINISTRATIVE PROCEEDINGS. There is no claim,
action, suit, proceeding or investigation in any court or before any
governmental or regulatory authority pending or threatened against or affecting
SPSS which seeks to enjoin or obtain damages in respect of the transactions
contemplated hereby.
3.6 BROKERS AND FINDERS. SPSS has not employed any broker, finder
or investment banker, or incurred any liability for any brokerage fees,
commissions or finders' fees in connection with this Agreement or the
transactions contemplated by this Agreement.
ARTICLE IV
COVENANTS OF DELTAPOINT
DeltaPoint covenants as follows:
4.1 TAX MATTERS. Subject to SECTION 4.8, DeltaPoint will timely
pay or satisfy all liabilities under any federal, state, local or foreign
income, sales, use and other taxes that may be due as a result of the sale of
the Assets hereunder or which otherwise relate to the Assets for any period of
time prior to the Closing Date.
4.2 POST-CLOSING ACCESS TO INFORMATION. For a period of seven
years after the Closing, DeltaPoint shall not dispose of any books, records,
documents or information relating in whole or part to the Assets or otherwise to
the DeltaGraph business of DeltaPoint without first giving notice to SPSS and
permitting SPSS to copy, at its own expense, those portions of such books and
records which relate to the Assets or otherwise to the DeltaGraph business as
SPSS may reasonably select. During such seven-year period, DeltaPoint shall
permit SPSS to examine and make copies, at SPSS's expense, of such books,
records, documents or information for any reasonable purpose, including but not
limited to any litigation commenced against SPSS or any affiliate of SPSS or the
preparation of income or other tax returns or in connection with any
administrative or regulatory proceedings or actions. In addition, DeltaPoint
shall make available to SPSS, on a reasonable basis and as requested from time
to time by SPSS, itself and those employees of DeltaPoint with knowledge of or
knowledge relevant to the above-described matters for the purpose of reasonable
consultation and/or testimony in connection therewith, such services to be
performed without additional compensation from SPSS, except for reimbursement of
reasonable out-of-pocket travel or related expenses.
4.3 RIGHT OF ENDORSEMENT. Upon the Closing and thereafter, SPSS
shall have the right and authority to endorse, without recourse, the name of
DeltaPoint on any check or any other evidence of indebtedness received by SPSS
and to which it is entitled on account of any receivable or other Asset
transferred by DeltaPoint pursuant hereto, and DeltaPoint shall deliver to SPSS
at the Closing documents sufficient to permit SPSS to deposit such checks or
other evidences of indebtedness in bank accounts in the name of SPSS.
4.4 ACCOUNTS RECEIVABLE. After the Closing, DeltaPoint shall
promptly remit to SPSS all the proceeds of any checks and other payments for
accounts receivable belonging to SPSS under this Agreement and coming into the
possession of DeltaPoint. DeltaPoint shall use commercially reasonable efforts
to assist SPSS in the collection of DeltaPoint's unpaid accounts receivable
acquired pursuant to this Agreement and relating solely to its DeltaGraph
business prior to the Closing, and DeltaPoint shall employ telephone calls and
follow-up efforts to collect such accounts; PROVIDED, HOWEVER, that DeltaPoint
shall not be liable for the failure of SPSS to collect any such accounts
receivable after the Effective Date other than pursuant to a breach or violation
by DeltaPoint of its representations, warranties and covenants set forth herein
or its obligations under that certain Interim Management Agreement dated of even
date herewith between the parties hereto. DeltaPoint
shall maintain written records with respect to collection of such accounts and
SPSS shall be entitled to review such records and all information in
DeltaPoint's possession respecting such accounts at reasonable intervals and
during DeltaPoint's normal business hours. DeltaPoint shall also establish
appropriate procedures by which payments received by DeltaPoint on accounts
receivables can be identified as for the account of SPSS or for the account of
DeltaPoint. For any payments received by DeltaPoint on accounts receivable due
and owing from a joint customer of SPSS and DeltaPoint, DeltaPoint shall treat
such payments as being made for the account of, and belonging to, SPSS, if such
payment is identified with a SPSS invoice. If such payment is either not
identified with a SPSS invoice or if the payment is identified with a DeltaPoint
invoice, such payment shall remain the property of DeltaPoint.
4.5 FURTHER ASSURANCES. After the Closing, DeltaPoint shall from
time to time, at the request of SPSS and without further cost or expense to
SPSS, execute and deliver such other documents and take such other actions as
shall be reasonably necessary or appropriate to consummate fully the
transactions contemplated hereby.
4.6 DISCONTINUANCE OF USE. Xxxx Xxxxxxx, XxxxxXxxxx will
discontinue use of the name "DeltaGraph" or any confusingly similar name except
for purposes of collecting unpaid accounts receivable related to the Assets and
limited and incidental references to DeltaGraph in its existing sales, press
kits, marketing materials (until the existing supply of such kits and materials
is depleted) and its existing legal documentation, as permitted hereunder. It
is understood that DeltaPoint can continue to use the name "DeltaPoint."
4.7 CONSENTS. DeltaPoint will use all reasonable efforts to
obtain the express written consent of all third parties necessary to assign any
Contracts included in the Assets. If any third party withholds consent or
DeltaPoint receives royalties or payments on account of such Contracts after
Closing, DeltaPoint will hold all such amounts in trust for SPSS and promptly
pay same to SPSS. DeltaPoint will indemnify and hold SPSS harmless from and
against any loss suffered by SPSS as a result of DeltaPoint's failure to obtain
any necessary consent to the assignment of such Contracts.
4.8 TRANSFER COSTS. All California sales or use taxes on the
transfer of the Assets and recording or filing fees necessary to transfer title
to any of the Assets on the Closing Date shall be borne and paid by DeltaPoint.
DeltaPoint is qualified to do business in the states set forth on SCHEDULE 4.8.
4.9 NON-COMPETITION; CONFIDENTIALITY.
4.9.1 DeltaPoint understands and agrees that the business of
SPSS, among other things, concerns proprietary computer software programs and
related documentation which will include, after the acquisition contemplated by
this Agreement, the proprietary computer software programs and related
documentation constituting a portion of the Assets. DeltaPoint understands that
in the course of its dealings with SPSS, SPSS and/or its subsidiaries or
affiliates may provide DeltaPoint with, or access to, its software (including,
without limitation, source listings therefor), as well as confidential and/or
proprietary prospect and customer lists, data, research, specifications,
memoranda, files, records, plans, concepts, flow charts, drawings, designs,
descriptions, formulations, trade secrets and other confidential and/or
proprietary information and property, including but not limited to, information
regarding SPSS operations, businesses, affairs, management and market structure
(all of the foregoing collectively referred to as the "Confidential Property").
Confidential Property shall not, however, include any information which (i) was
publicly known and made generally available in the public domain prior to the
time of disclosure by the disclosing party; (ii) becomes publicly known and made
generally available after disclosure by the disclosing party to the receiving
party through no action or inaction of the receiving party; (iii) is already in
the possession of the receiving party at the time of disclosure by the
disclosing party as shown by the receiving party's files and records immediately
prior to the time of disclosures; (iv) is obtained by the receiving party from a
third party without a breach of such third party's obligations of
confidentiality; (v) is independently developed by the receiving party without
use of or reference to the disclosing party's Confidential Property, as shown by
documents and other competent evidence in the receiving party's possession; or
(vi) is required by law to be disclosed by the receiving party, PROVIDED THAT
the receiving party gives the disclosing party prompt written notice of such
requirement prior to such disclosure and assistance in obtaining an order
protecting the information from public disclosure.
4.9.2 DeltaPoint will regard and preserve as confidential and
as trade secrets all of the Confidential Property. Except as may be required by
law, any governmental agency or under the Exchange Act, DeltaPoint will not,
directly or indirectly, communicate or divulge to, or use for the benefit of
itself or any other person, firm, association or corporation, without the prior
written consent of SPSS, any Confidential Property. The Confidential Property
shall remain the sole and exclusive property of SPSS, and upon request by SPSS
for any reason whatsoever, DeltaPoint shall promptly return any and all
Confidential Property in its possession or control to SPSS.
4.9.3 DeltaPoint shall have no right, title or interest of
any kind or nature in any of the Confidential Property or any proceeds
therefrom.
4.9.4 DeltaPoint hereby further covenants and agrees that
during the Non-Compete Period (as hereinafter defined) DeltaPoint will not (a)
directly or indirectly (whether through a partnership of which DeltaPoint is a
partner or through any other individual or entity in which DeltaPoint has any
interest, legal or equitable, or otherwise), engage in any business competitive
with the business of SPSS or the statistical charting and graphing software
business being acquired by SPSS pursuant to this Agreement as in existence or
under development on the Closing Date (the "DeltaGraph Business"), (b) directly
or indirectly (whether through a partnership of which DeltaPoint is a partner or
through any other individual or entity in which DeltaPoint has any interest,
legal or equitable, or otherwise) solicit or otherwise be involved with any
customers or clients of SPSS or the DeltaGraph Business existing on the date of
acquisition of the DeltaGraph Business by SPSS in any transactions which are in
competition with the statistical software business of SPSS or the
DeltaGraph Business at any time during the Non-Compete Period, or (c) directly
or indirectly (whether through a partnership of which DeltaPoint is a partner or
through any other individual or entity in which DeltaPoint has any interest,
legal or equitable, or otherwise), assist any person in the development,
programming, servicing, maintenance, manufacture, sale, licensing, distribution
or marketing (including, without limitation, giving away software) of
statistical software and related products in competition with products of the
DeltaGraph Business, SPSS or any of its affiliates, in each case in the United
States of America or any other country in which SPSS or any of its affiliates is
doing business, in each case excluding passive investment interests of less than
five percent (5%) in corporations whose stock is publicly traded and registered
under the Securities Exchange Act of 1934, as amended. Notwithstanding the
foregoing, DeltaPoint shall be deemed not to be in violation of the foregoing
provisions if (i) DeltaPoint acquires a business that is primarily engaged in a
business other than one which competes with the statistical software business of
SPSS or the DeltaGraph business and (ii) DeltaPoint promptly commences efforts
to sell or otherwise dispose of such competing business.
As used herein, the term "Non-Compete Period" shall mean a period of
three (3) years after the Closing Date.
4.9.5 During the Non-Compete Period, DeltaPoint will not
directly knowingly employ, solicit for employment, or advise or recommend to any
other person that they employ or solicit for employment, any employee of SPSS.
DeltaPoint further agrees that the limitations set forth herein
(including, without limitation, any time or territorial limitations) are
reasonable and properly required for the adequate protection of the DeltaGraph
Business and the business of SPSS (and its affiliates). In the event any such
territorial or time limitation is deemed to be unreasonable by a court of
competent jurisdiction, DeltaPoint agrees to the reduction of the territorial or
time limitation to the area or period which such court shall have deemed
reasonable. It is understood and agreed that the covenants made by DeltaPoint
herein relating to confidentiality shall survive the expiration or termination
of this Agreement, and that the covenants made by DeltaPoint herein relating to
non-competition shall survive the Closing of this Agreement.
4.10 EQUITABLE RELIEF. DeltaPoint understands that a breach by it
of any provision of this Agreement may cause substantial injury to SPSS which
may be irreparable and/or in amounts difficult or impossible to ascertain, and
that in the event DeltaPoint breaches any provision of this Agreement, SPSS
shall have, in addition to all other remedies available in the event of a breach
of this Agreement, the right to injunctive or other equitable relief. Further,
DeltaPoint acknowledges and agrees that the restrictions and commitments set
forth in this Agreement are necessary to protect the legitimate interests of
SPSS and are reasonable in scope, area and time, and that if, despite this
acknowledgment and agreement, at the time of the enforcement of any provision of
this Agreement a court of competent jurisdiction shall hold that the period or
scope of such provision is unreasonable under the circumstances then existing,
the maximum reasonable period or scope under such
circumstances shall be substituted for the period or scope stated in such
provision.
ARTICLE V
COVENANTS OF SPSS
SPSS covenants as follows:
5.1 RETENTION OF RECORDS. After the Closing, SPSS will retain all
of DeltaPoint's books and records relating to the Assets which come into SPSS's
possession in accordance with SPSS's policies for retention of its own books and
records. SPSS will provide DeltaPoint access to such books and records
concerning periods prior to the Closing in SPSS' possession upon reasonable
notice, during SPSS's regular business hours and at reasonable intervals.
5.2 FURTHER ASSURANCES. After the Closing, SPSS shall from time
to time, at the request of DeltaPoint and without further cost or expense to
DeltaPoint, execute and deliver such other documents and take such other actions
as shall be reasonably necessary or appropriate to consummate fully the
transactions contemplated hereby.
5.3 POST-CLOSING ACCESS TO INFORMATION. For a period of seven
years after the Closing, SPSS shall not dispose of any books, records, documents
or information relating in whole or part to the Assets or otherwise to the
DeltaGraph business of SPSS without first giving notice to DeltaPoint and
permitting DeltaPoint to copy, at its own expense, those portions of such books
and records which relate to the Assets or otherwise to the DeltaGraph business
on the Closing Date as DeltaPoint may reasonably select. During such seven-year
period, SPSS shall permit DeltaPoint to examine and make copies, at DeltaPoint's
expense, of such books, records, documents or information for any reasonable
purpose, including but not limited to any litigation commenced against
DeltaPoint or any affiliate of DeltaPoint or the preparation of income or other
tax returns or in connection with any administrative or regulatory proceedings
or actions. In addition, SPSS shall make available to DeltaPoint, on a
reasonable basis and as requested from time to time by DeltaPoint, itself and
those employees of SPSS with knowledge of or knowledge relevant to the
above-described matters for the purpose of reasonable consultation and/or
testimony in connection therewith, such services to be performed without
additional compensation from DeltaPoint, except for reimbursement of reasonable
out-of-pocket travel or related expenses.
ARTICLE VI
MUTUAL COVENANTS
Each of the parties hereto covenants as follows:
6.1 CONFIDENTIALITY. Except as otherwise required by law or
judicial or administrative proceedings, and except for public announcements
which, based on the advice of counsel, are required by law, each of the parties
agrees not to (i) disclose any proprietary or confidential information of any
other party, or the terms of this Agreement (collectively, the "Confidential
Information"), to any individual or entity (other than its directors, officers,
employees, agents and representatives with a need to know such Confidential
Information in order to consummate the transactions contemplated hereby) or (ii)
use any Confidential Information for any purpose other than consummating the
transactions contemplated hereby and, with respect to SPSS, utilizing the Assets
and discharging the Assumed Liabilities after the Closing.
6.2 CONSISTENT TAX REPORTING. The parties agree for tax purposes
to report the transactions contemplated by this Agreement, and to treat any
subsequent related transactions or items, in a manner consistent in all respects
with the terms and provisions of this Agreement. Each party shall cooperate
with the other parties as appropriate for all relevant tax purposes relating to
the transactions contemplated by this Agreement, including the filing of IRS
Form 8594, Asset Acquisition Agreement under Section 1060 of the Code, as
described in SECTION 1.3.1, above, and report for tax purposes the transactions
provided for in this Agreement, and treat any subsequent related transactions or
items, in a manner consistent in all respects with the terms and provisions of
this Agreement.
6.3 COOPERATION. The parties agree to cooperate for all other
reasonable purposes after the Closing, including with respect to any audit by
any taxing authority of any of the income tax or other tax returns of
DeltaPoint.
ARTICLE VII
CONDITIONS TO OBLIGATIONS OF DELTAPOINT
The obligation of DeltaPoint to consummate the transactions contemplated
hereby is subject to the satisfaction on or prior to the Closing Date of the
following conditions:
7.1 REPRESENTATIONS AND WARRANTIES. The representations and
warranties of SPSS shall be true and accurate on and as of the Closing Date in
all material respects with the same effect as though such representations and
warranties had been made on and as of such date (except that any representation
or warranty that is qualified as to materiality shall be read as if not so
qualified).
7.2 PERFORMANCE. SPSS shall have performed in all material
respects all covenants and agreements required by this Agreement to be performed
by it on or before the Closing Date (including, without limitation, the closing
deliveries required by ARTICLE IX hereof).
7.3 FILINGS; CONSENTS; WAITING PERIODS. All registrations,
filings, applications, notices, transfers, consents, approvals, orders,
qualifications, waivers and other actions listed on SCHEDULE 2.3 hereto shall
have been made or obtained and all applicable waiting periods shall have expired
or been terminated.
7.4 NO INJUNCTION. At the Closing Date, there shall be no
injunction, restraining order or decree of any nature of any court or
governmental body in effect which restricts or prohibits the consummation of the
transactions contemplated by this Agreement.
7.5 DELTAGRAPH EMPLOYEE MATTERS. DeltaGraph and SPSS shall have
reached a satisfactory understanding regarding the status of DeltaGraph Business
employees.
7.6 LEGAL OPINION. DeltaPoint shall have received the written
opinion, dated the Closing Date, of counsel to SPSS, substantially in the form
attached hereto as EXHIBIT B.
ARTICLE VIII
CONDITIONS TO OBLIGATIONS OF SPSS
The obligation of SPSS to consummate the transactions contemplated
hereby is subject to the satisfaction on or prior to the Closing Date of the
following conditions:
8.1 REPRESENTATIONS AND WARRANTIES. The representations and
warranties of DeltaPoint shall be true and accurate on and as of the Closing
Date in all material respects with the same effect as though such
representations and warranties had been made on and as of such date (except that
any representation or warranty that is qualified as to materiality shall be read
as if not so qualified).
8.2 PERFORMANCE. DeltaPoint shall have performed in all material
respects all covenants and agreements required by this Agreement to be performed
by it on or before the Closing Date (including, without limitation, the closing
deliveries required by ARTICLE IX hereof).
8.3 FILINGS; CONSENTS; WAITING PERIODS. All registrations,
filings, applications, notices, transfers, consents, approvals, orders,
qualifications, waivers and other actions of any kind listed on SCHEDULE 3.3
hereto or otherwise required of any persons or governmental authorities or
private agencies in connection with the consummation of the transactions
contemplated by, and the performance by DeltaPoint of its obligations under,
this Agreement shall have been made or obtained and all applicable waiting
periods shall have expired or been terminated, in each case upon terms and
conditions reasonably satisfactory to SPSS.
8.4 BULK SALES COMPLIANCE. DeltaPoint shall have taken all steps
necessary to permit SPSS to meet the requirements of the California bulk sales
laws, including without limitation providing SPSS with such information as SPSS
shall reasonably request concerning all creditors of DeltaPoint.
8.5 NO LITIGATION. No action, suit or proceeding shall have been
instituted by any person or entity, or threatened by any governmental agency or
body, before a court or governmental body, to restrain or prevent the
consummation of the transactions contemplated by, or the performance by
DeltaPoint of its obligations under, this Agreement or which seeks other relief
with respect to any of such transactions or which could reasonably be expected
to have a materially adverse effect on the DeltaGraph business of DeltaPoint.
At the Closing Date, there shall be no injunction, restraining order or decree
of any nature of any court or governmental agency or body in effect which
restrains or prohibits the consummation of the transactions contemplated by this
Agreement.
8.6 LEGAL OPINION. SPSS shall have received the written opinion,
dated the Closing Date, of counsel to DeltaPoint, substantially in the form
attached hereto as EXHIBIT A.
8.7 RESOLUTIONS. DeltaPoint and SPSS shall each deliver to the
other certified resolutions of its respective directors approving and
authorizing the execution of this Agreement and the consummation of the
transactions contemplated hereby.
8.8 GOOD STANDING CERTIFICATES. DeltaPoint shall cause to be
delivered to SPSS a good standing certificate from the Secretary of State of the
State of California. SPSS shall deliver to DeltaPoint a good standing
certificate from the Secretary of State of the State of Delaware.
8.9 LIEN SEARCHES. DeltaPoint shall deliver to SPSS UCC lien
search results relating to the Assets, in form and substance reasonably
satisfactory to SPSS.
8.10 LIEN TERMINATIONS. DeltaPoint shall deliver to SPSS UCC-3
termination statements or releases executed by a duly authorized representative
of each of any creditor which has a lien or encumbrance on any of the Assets, in
good form for filing, terminating or releasing all liens and encumbrances on the
Assets.
ARTICLE IX
CLOSING DELIVERIES
The following deliveries shall be made at the Closing:
9.1 LEGAL OPINION. DeltaPoint shall cause to be delivered the
written legal opinion referred to in SECTION 8.6 hereof, and SPSS shall cause to
be delivered the written legal opinion referred to in SECTION 7.6 hereof.
9.2 INTENTIONALLY OMITTED.
9.3 CLOSING CERTIFICATES. DeltaPoint shall deliver, or cause to
be delivered, to SPSS such closing certificates and documents as SPSS and its
counsel shall reasonably request.
9.4 INSTRUMENTS OF TRANSFER. DeltaPoint shall deliver the
following bills of sale and other instruments of conveyance, evidencing the
transfer and assignment of the Assets, in a form reasonably satisfactory to SPSS
and its counsel:
(a) Bills of sale for all tangible personal property included in
the Assets;
(b) All certificates, and other material permits, licenses,
approvals or authorizations relating to DeltaGraph issued by any
governmental authority that are assignable; all Assets comprising
intangible property; and all Contracts included in the Assets that are
assignable;
(c) Documents satisfactory to assign copyrights and trademarks
relating to DeltaGraph owned by DeltaPoint to SPSS, such documents to be in
recordable form;
(d) Such other instruments of conveyance, transfer and assignment
as may be reasonably required to vest in SPSS all of DeltaPoint's right,
title and interest in and to the Assets.
9.5 CHARTER; GOOD STANDING CERTIFICATES. DeltaPoint shall cause
to be delivered to SPSS DeltaPoint's Certificates of Incorporation, as amended
to the Closing Date, certified by the Secretary of State of the State of
California and good standing and tax certificates from the State of California
and each other jurisdiction in which DeltaPoint is required to be qualified.
SPSS shall cause to be delivered to DeltaPoint SPSS's Certificates of
Incorporation, as amended to the Closing Date, certified by the Secretary of
State of the State of Delaware and good standing certificates from the State of
Delaware and each other jurisdiction in which SPSS is required to be qualified.
9.6 FURTHER ASSURANCES. Each party shall deliver, or cause to be
delivered, all other documents required to be delivered at the Closing by the
other party, including without limitation the documents listed as the
responsibility of such party pursuant to the closing memorandum prepared in
connection with the closing of the transactions contemplated by this Agreement,
and shall take all other actions which the other parties may reasonably
determine necessary or appropriate in order to consummate fully the transactions
contemplated hereby.
ARTICLE X
SURVIVAL AND INDEMNIFICATION
10.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES; COVENANTS. All
representations and warranties contained herein or made in writing by any party
in connection herewith shall survive the Closing for a period of two years,
regardless of any investigation made by or on behalf of any party, except for
the representations and warranties contained in SECTION 2.30, which shall
survive indefinitely, and the representations and warranties contained in
SECTIONS 2.10, 2.12 and 2.24, or a representation or warranty which shall prove
to be untrue due to the fraud of DeltaPoint, which in each case shall survive
until the expiration of the applicable statute of limitations with respect to
the subject matter thereof. All covenants contained herein shall survive until
performed fully.
10.2 INDEMNIFICATION BY DELTAPOINT. DeltaPoint agrees to indemnify
and hold SPSS and its affiliates and the respective officers, directors,
employees, agents and representatives of each of the foregoing (collectively,
the "Representatives") harmless from and against any and all costs, expenses,
losses, claims, damages, penalties, fines, liabilities and obligations whenever
arising or incurred (including, without limitation, amounts paid in settlement,
costs of investigation and attorneys' fees and expenses) (individually, a
"Loss," and collectively, "Losses") arising out of or relating to (i) any breach
of any representation or warranty set forth herein or in any related schedule,
or set forth in any closing certificate or other document entered into or
delivered in connection with this Agreement; (ii) any breach of any covenant or
obligation of DeltaPoint contained in this Agreement, or set forth in any
closing certificate or other document entered into or delivered in connection
with this Agreement; (iii) any liabilities under any applicable bulk sales or
transfer law; (iv) any fraudulent representation or intentional
misrepresentation on the part of DeltaPoint; (v) any intentional or fraudulent
breach by DeltaPoint of any warranty, representation, agreement, covenant or
obligation made under this Agreement; (vi) subject to SECTION 4.8, any tax
liability or obligation asserted against SPSS with respect to the DeltaGraph
business and arising out of or related to tax periods ending on or prior to the
Closing Date; (vii) trademark infringement on E.O.S.' trademark "DeltaPath" by
use of the name "DeltaGraph"; and (viii) the failure of any employee or
consultant of DeltaPoint to execute agreements with DeltaPoint regarding
confidentiality or nondisclosure and assignment of inventions relating to
DeltaGraph. Notwithstanding the foregoing, and except for matters relating to
the first sentence of Section 2.30 hereof, DeltaPoint shall not be obligated to
indemnify SPSS in respect of any Loss unless and until the aggregate amount of
all Losses in respect of which DeltaPoint shall be obligated to indemnify SPSS
shall exceed $35,000, in which event DeltaPoint shall be obligated to indemnify
SPSS for the aggregate amount of all such Losses; provided, however, that
DeltaPoint's obligation to so indemnify SPSS for such Losses shall be reduced by
the present value of any net tax benefits actually received by SPSS in
connection with such Loss (less all costs and expenses incurred by SPSS in
connection with receiving such net tax benefits) and any insurance proceeds
actually received by SPSS in connection with such Loss (less deductibles,
premiums paid by SPSS and all costs and expenses actually incurred by SPSS in
collecting such insurance proceeds).
10.3 INDEMNIFICATION PROCEDURE. (a) An indemnified party under
SECTION 10.2 of this Agreement shall give prompt written notice to DeltaPoint
(when and to the extent that the indemnified party has actual knowledge thereof)
of any condition, event or occurrence or the commencement of any action, suit or
proceeding for which indemnification may be sought, and DeltaPoint, through
counsel reasonably satisfactory to the indemnified party, shall assume the
defense thereof or other indemnification obligation with respect thereto;
PROVIDED, HOWEVER, that any indemnified party shall be entitled to participate
in any such action, suit or proceeding with counsel of its own choice but at its
own expense; and PROVIDED, FURTHER, that any indemnified party shall be entitled
to participate in any such action, suit or proceeding with counsel of its own
choice at the expense of DeltaPoint, if, under applicable canons of ethics,
joint representation of DeltaPoint and SPSS presents a conflict of interest. In
any event, if DeltaPoint fails to assume the defense within a reasonable time,
the indemnified party may assume such defense or other indemnification
obligation and the reasonable fees and expenses of its attorneys will be covered
by the indemnity provided for hereunder. No action, suit or proceeding for
which indemnification may be sought shall be compromised or settled in any
manner which might adversely affect the interests of DeltaPoint without the
prior written consent of DeltaPoint (which shall not be unreasonably withheld);
PROVIDED, HOWEVER, that SPSS may settle any claim or cause of action without
DeltaPoint's consent, but in such case DeltaPoint shall not be required to
reimburse SPSS for its Losses except and to the extent that a court of competent
jurisdiction finally determines on appeal that DeltaPoint must indemnify SPSS
therefor. Notwithstanding anything in this SECTION 10.3 to the contrary,
DeltaPoint shall not, without the prior written consent of the indemnified
party, (i) settle or compromise any action, suit or proceeding or consent to the
entry of any judgment which does not include as an unconditional term thereof
the delivery by the claimant or plaintiff to the indemnified party of a written
release from all liability in respect of such action, suit or proceeding or (ii)
settle or compromise any action, suit or proceeding in any manner that may
materially and adversely affect the indemnified party other than as a result of
money damages or other money payments. DeltaPoint shall pay all expenses,
including attorneys' fees, that may be incurred by any indemnified party in
enforcing the indemnity provided for hereunder.
10.4 INDEMNIFICATION BY SPSS. From and after the Closing Date,
SPSS agrees to indemnify and hold DeltaPoint and its affiliates and the
respective officers, directors, employees, agents and representatives of each of
the foregoing harmless from and against any and all Losses relating to (i) any
misrepresentations, breach of warranty or nonfulfillment of any covenant or
agreement on the part of SPSS contained in this Agreement, including any
Exhibits and Schedules thereto and (ii) SPSS's actions or omissions from and
after the Closing Date with respect to the Assets and the Assumed Liabilities
and SPSS's obligations under the Management Agreement.
10.5 INDEMNIFICATION PROCEDURE. (a) An indemnified party under
SECTION 10.4 of this Agreement shall give prompt written notice to SPSS (when
and to the extent that the indemnified party has actual knowledge thereof) of
any condition, event or occurrence or the commencement of any action, suit or
proceeding for which indemnification may be sought,
and SPSS, through counsel reasonably satisfactory to the indemnified party,
shall assume the defense thereof or other indemnification obligation with
respect thereto; PROVIDED, HOWEVER, that any indemnified party shall be entitled
to participate in any such action, suit or proceeding with counsel of its own
choice but at its own expense; and PROVIDED, FURTHER, that any indemnified party
shall be entitled to participate in any such action, suit or proceeding with
counsel of its own choice at the expense of SPSS, if, under applicable canons of
ethics, joint representation of DeltaPoint and SPSS presents a conflict of
interest. In any event, if SPSS fails to assume the defense within a reasonable
time, the indemnified party may assume such defense or other indemnification
obligation and the reasonable fees and expenses of its attorneys will be covered
by the indemnity provided for in SECTION 10.4. No action, suit or proceeding
for which indemnification may be sought shall be compromised or settled in any
manner which might adversely affect the interests of SPSS without the prior
written consent of SPSS (which shall not be unreasonably withheld); PROVIDED,
HOWEVER, that DeltaPoint may settle any claim or cause of action without SPSS's
consent, but in such case SPSS shall not be required to reimburse DeltaPoint for
its Losses except and to the extent that a court of competent jurisdiction
finally determines on appeal that SPSS must indemnify DeltaPoint therefor.
Notwithstanding anything in this SECTION 10.5 to the contrary, SPSS shall not,
without the prior written consent of the indemnified party, (i) settle or
compromise any action, suit or proceeding or consent to the entry of any
judgment which does not include as an unconditional term thereof the delivery by
the claimant or plaintiff to the indemnified party of a written release from all
liability in respect of such action, suit or proceeding or (ii) settle or
compromise any action, suit or proceeding in any manner that may materially and
adversely affect the indemnified party other than as a result of money damages
or other money payments. SPSS shall pay all expenses, including attorneys'
fees, that may be incurred by any indemnified party in enforcing the indemnity
provided for in SECTION 10.4.
10.6 ARBITRATION. Any dispute as to any claims under this
Agreement shall be settled by arbitration in the City of San Francisco,
California, pursuant to the commercial arbitration rules of the American
Arbitration Association. Arbitration shall be conducted promptly and
expeditiously so as to enable the arbitrators to render an award within 90 days
of the commencement of the arbitration proceedings. Judgment upon any award
rendered in any arbitration proceeding pursuant to this Section 10.6 may be
entered, and any agreement arising out of negotiations or mediation may be
enforced, in any court having jurisdiction thereof. DeltaPoint and SPSS shall
bear (a) with respect to negotiations, their own expenses, (b) with respect to
mediation, an equal share of the expenses and (c) with respect to arbitration,
shall jointly and equally share the expenses of the arbitrator and the
arbitration.
ARTICLE XI
MISCELLANEOUS
11.1 AMENDMENT AND MODIFICATION. Subject to applicable law, this
Agreement may be amended, modified and supplemented by written agreement of the
parties.
11.2 WAIVER OF COMPLIANCE. Any failure of DeltaPoint, on the one
hand, or SPSS, on the other, to comply with any obligation herein may be
expressly waived hereunder, but such waiver shall not operate as a waiver of, or
estoppel with respect to, any subsequent or other failure. Any waiver must be
in writing and duly executed by the appropriate parties.
11.3 EXPENSES. Whether or not the transactions contemplated by
this Agreement shall be consummated, the parties hereto agree that all fees and
expenses incurred by DeltaPoint, on the one hand, and SPSS, on the other, in
connection with this Agreement, and the transactions and other actions
contemplated thereby or taken in connection therewith, shall be borne by
DeltaPoint, and by SPSS, respectively, including, without limitation, all fees
of counsel and accountants.
11.4 NOTICES. All notices, requests, demands and other
communications required or permitted hereunder shall be in writing and shall be
deemed to have been duly given when delivered by hand or by facsimile
transmission (receipt confirmed), one day after being sent by recognized
overnight courier or delivery service, freight prepaid, or five days after being
mailed, certified or registered mail, postage prepaid, return receipt requested:
(a) If to DeltaPoint to:
DeltaPoint, Inc.
00 Xxxxx Xxxxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Xx. Xxxxxxx Ait
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Wilson, Sonsini, Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxxx Xxxxx, Esq.
Xxxx Xxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or to such other person or address as DeltaPoint shall furnish to SPSS in
writing by notice given in the manner set forth in (a) above.
(b) If to SPSS, to:
SPSS Inc.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Mr. Xxxxxx Hamburg
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Xxxx & Xxxxxxx
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: T. Xxxxxxx Xxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or to such other person or address as SPSS shall furnish to DeltaPoint in
writing by notice given in the manner set forth above.
11.5 ASSIGNMENT. This Agreement and all of the provisions hereof
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns, but neither this Agreement nor any
of the rights, interests or obligations hereunder shall be assigned by any of
the parties hereto without the prior written consent of the other parties,
except by operation of law and except that SPSS may assign its rights and
obligations under this Agreement to any other entity wholly owned by SPSS. If
such assignment shall be made by SPSS, the assignee shall be entitled to all of
the rights and shall assume all of the obligations of SPSS hereunder, PROVIDED,
THAT SPSS shall remain liable for and guarantee the performance of such entity's
obligations under this Agreement.
11.6 PUBLICITY. Neither DeltaPoint nor SPSS shall make or issue,
or cause to be made or issued, any announcement or written statement concerning
this Agreement or the transactions contemplated hereby for dissemination to the
general public, without the prior written consent of the other party. This
provision shall not apply, however, to any announcement or written statement
required to be made by law, the regulations of any federal or state governmental
agency or any stock exchange, except that the party required to make such
announcement shall, whenever practicable, consult with the other party
concerning the timing and content of such announcement before such announcement
is made.
11.7 HEADINGS. The Article and Section headings contained in this
Agreement are inserted for convenience only and shall not affect in any way the
meaning or interpretation of this Agreement.
11.8 SEVERABILITY. If any provision of this Agreement shall be
determined to be contrary to law and unenforceable by any court of law, the
remaining provisions shall be severable and enforceable in accordance with their
terms.
11.9 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Illinois, without regard
to its conflicts of law doctrine. The parties hereto expressly submit
themselves to the non-exclusive jurisdictions of the State and Federal Courts of
Illinois for the resolution of any disputes which may arise under or with
respect to compliance with this Agreement.
11.10 COUNTERPARTS. This Agreement may be executed simultaneously
in two or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
11.11 THIRD PARTIES. Nothing herein shall be construed to confer
upon or give to any party other than the parties hereto and their successors or
permitted assigns, any rights or remedies under or by reason of this Agreement.
11.12 POST-CLOSING DELIVERIES. DeltaPoint shall use best efforts to
obtain and deliver to SPSS those consents referenced on SCHEDULE 2.3 within 15
days after the Closing Date.
11.13 ENTIRE AGREEMENT. This Agreement, including the Exhibits and
Schedules hereto, sets forth the entire agreement and understanding of the
parties hereto in respect of the subject matter contained herein, and supersedes
all prior agreements, covenants, representations or warranties, whether oral or
written, by any party hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, all as of the day and year first written above.
SPSS INC., a Delaware corporation
By: /s/ XXXXXX HAMBURG
Name: Xxxxxx Hamburg
Title: Executive Vice President
DELTAPOINT, INC., a California corporation
By: /s/ XXXXXXX X. AIT
Name: Xxxxxxx X. Ait
Title: Chief Executive Officer
TABLE OF CONTENTS
ARTICLE I TERMS OF PURCHASE AND SALE . . . . . . . . . . . . . . . . . . 1
1.1 Purchase and Sale. . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Time and Place of Closing. . . . . . . . . . . . . . . . . . . 3
1.3 Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . 3
1.3.1 Allocation of Purchase Price . . . . . . . . . . . . 3
1.4 Assumption of Liabilities and Obligations. . . . . . . . . . . 4
1.5 Liabilities Not Assumed. . . . . . . . . . . . . . . . . . . . 5
1.6 Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE II REPRESENTATIONS AND WARRANTIES OF
DELTAPOINT . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.1 Organization and Qualification.. . . . . . . . . . . . . . . . 5
2.2 Authority. . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.3 Consents and Approvals.. . . . . . . . . . . . . . . . . . . . 6
2.4 Absence of Conflicts.. . . . . . . . . . . . . . . . . . . . . 6
2.5 Financial Statements; Accounts Receivable. . . . . . . . . . . 6
2.6 Absence of Undisclosed Liabilities.. . . . . . . . . . . . . . 7
2.7 Current Liabilities/Receivables. . . . . . . . . . . . . . . . 7
2.8 Absence of Certain Changes or Events.. . . . . . . . . . . . . 7
2.9 Real and Personal Property; Inventories. . . . . . . . . . . . 8
2.10 Patents, Trademarks, Etc.. . . . . . . . . . . . . . . . . . . 9
2.11 Employees. . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2.12 Source Code. . . . . . . . . . . . . . . . . . . . . . . . . . 10
2.13 Contracts and Commitments. . . . . . . . . . . . . . . . . . . 10
2.14 Licenses and Royalties . . . . . . . . . . . . . . . . . . . . 11
2.15 Adequacy of Documentation. . . . . . . . . . . . . . . . . . . 11
2.16 Third-Party Components in Software Programs. . . . . . . . . . 11
2.17 Third-Party Interests or Marketing Rights in Software
Programs.. . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2.18 No Virus Warranties. . . . . . . . . . . . . . . . . . . . . . 12
2.19 Purchased Software; Performance; Physical Media. . . . . . . . 12
2.20 Government Contracts.. . . . . . . . . . . . . . . . . . . . . 12
2.21 Product Warranties and Liabilities . . . . . . . . . . . . . . 13
2.22 Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . 13
2.23 Litigation and Administrative Proceedings. . . . . . . . . . . 13
2.24 Tax Matters. . . . . . . . . . . . . . . . . . . . . . . . . . 14
2.24.1 Tax Returns. . . . . . . . . . . . . . . . . . . . . 14
2.24.2 Examinations, Etc. . . . . . . . . . . . . . . . . . 14
2.24.3 All Taxes Paid or Reserved . . . . . . . . . . . . . 14
2.24.4 Withholding. . . . . . . . . . . . . . . . . . . . . 14
2.24.5 Asset Attributes . . . . . . . . . . . . . . . . . . 15
2.25 Compliance with Laws. . . . . . . . . . . . . . . . . . . . . 15
2.26 Environmental and Safety Matters. . . . . . . . . . . . . . . 15
2.27 Employee Benefits.. . . . . . . . . . . . . . . . . . . . . . 15
2.28 Licenses and Permits. . . . . . . . . . . . . . . . . . . . . 18
2.29 Relations With Suppliers and Customers. . . . . . . . . . . . 18
2.30 Interests in Competitors, Suppliers and
Customers . . . . . . . . . . . . . . . . . . . . . . . . . . 18
2.31 Discrimination; Occupational Safety; Labor. . . . . . . . . . 18
2.32 Related Transactions. . . . . . . . . . . . . . . . . . . . . 19
2.33 Brokers and Finders.. . . . . . . . . . . . . . . . . . . . . 19
2.34 Questionable Payments.. . . . . . . . . . . . . . . . . . . . 19
2.35 Title to Assets; No Liens . . . . . . . . . . . . . . . . . . 19
2.36 Necessary Property. . . . . . . . . . . . . . . . . . . . . . 19
2.37 Current Products. . . . . . . . . . . . . . . . . . . . . . . 20
2.38 Full Disclosure.. . . . . . . . . . . . . . . . . . . . . . . 20
2.39 Effect of Certificates. . . . . . . . . . . . . . . . . . . . 20
ARTICLE III REPRESENTATIONS AND WARRANTIES OF SPSS. . . . . . . . . . . . 20
3.1 Organization and Qualification. . . . . . . . . . . . . . . . 20
3.2 Authority.. . . . . . . . . . . . . . . . . . . . . . . . . . 21
3.3 Consents and Approvals. . . . . . . . . . . . . . . . . . . . 21
3.4 Absence of Conflicts. . . . . . . . . . . . . . . . . . . . . 21
3.5 Litigation and Administrative Proceedings. . . . . . . . . . 21
3.6 Brokers and Finders.. . . . . . . . . . . . . . . . . . . . . 21
ARTICLE IV COVENANTS OF DELTAPOINT AND THE SHAREHOLDER . . . . . . . . . 21
4.1 Tax Matters . . . . . . . . . . . . . . . . . . . . . . . . . 22
4.2 Post-Closing Access to Information. . . . . . . . . . . . . . 22
4.3 Right of Endorsement. . . . . . . . . . . . . . . . . . . . . 22
4.4 Accounts Receivable.. . . . . . . . . . . . . . . . . . . . . 22
4.5 Change of Name. . . . . . . . . . . . . . . . . . . . . . . . 22
4.6 Further Assurances. . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE V COVENANTS OF SPSS . . . . . . . . . . . . . . . . . . . . . . 23
5.1 Retention of Records. . . . . . . . . . . . . . . . . . . . . 23
5.2 Further Assurances. . . . . . . . . . . . . . . . . . . . . . 23
5.3 Change of Name of DELTAPOINT. . . . . . . . . . . . . . . . . 23
ARTICLE VI MUTUAL COVENANTS. . . . . . . . . . . . . . . . . . . . . . . 23
6.1 Confidentiality.. . . . . . . . . . . . . . . . . . . . . . . 23
6.2 Consistent Tax Reporting. . . . . . . . . . . . . . . . . . . 24
6.3 Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . 24
ARTICLE VII CONDITIONS TO OBLIGATIONS OF DELTAPOINT . . . . . . . . . . . 24
7.1 Representations and Warranties. . . . . . . . . . . . . . . . 24
7.2 Performance.. . . . . . . . . . . . . . . . . . . . . . . . . 24
7.3 Filings; Consents; Waiting Periods. . . . . . . . . . . . . . 24
7.4 No Injunction.. . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE VIII CONDITIONS TO OBLIGATIONS OF SPSS . . . . . . . . . . . . . . 25
8.1 Representations and Warranties. . . . . . . . . . . . . . . . 25
8.2 Performance.. . . . . . . . . . . . . . . . . . . . . . . . . 25
8.3 Filings; Consents; Waiting Periods. . . . . . . . . . . . . . 25
8.4 Bulk Sales Compliance.. . . . . . . . . . . . . . . . . . . . 25
8.5 No Litigation.. . . . . . . . . . . . . . . . . . . . . . . . 25
8.6 Non-Competition Agreement . . . . . . . . . . . . . . . . . . 26
8.7 Release of Obligations. . . . . . . . . . . . . . . . . . . . 26
8.8 Legal Opinion . . . . . . . . . . . . . . . . . . . . . . . . 26
8.9 Due Diligence Investigation . . . . . . . . . . . . . . . . . 26
ARTICLE IX CLOSING DELIVERIES. . . . . . . . . . . . . . . . . . . . . . 26
9.1 Legal Opinion.. . . . . . . . . . . . . . . . . . . . . . . . 26
9.2 Consents. . . . . . . . . . . . . . . . . . . . . . . . . . . 26
9.3 Closing Certificates. . . . . . . . . . . . . . . . . . . . . 26
9.4 Instruments of Transfer.. . . . . . . . . . . . . . . . . . . 27
9.5 Charter; Good Standing Certificates.. . . . . . . . . . . . . 27
9.6 Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . 27
9.7 Further Assurances. . . . . . . . . . . . . . . . . . . . . . 27
ARTICLE X SURVIVAL AND INDEMNIFICATION. . . . . . . . . . . . . . . . . 28
10.1 Survival of Representations and Warranties; Covenants.. . . . 28
10.2 Indemnification by DeltaPoint and the Shareholder . . . . . . 28
10.3 Undisclosed Liabilities . . . . . . . . . . . . . . . . . . . 29
10.4 Indemnification Procedure.. . . . . . . . . . . . . . . . . . 29
10.5 Indemnification by SPSS . . . . . . . . . . . . . . . . . . . 30
10.6 Indemnification Procedure . . . . . . . . . . . . . . . . . . 30
10.7 Arbitration . . . . . . . . . . . . . . . . . . . . . . . . . 31
ARTICLE XI MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . 32
11.1 Amendment and Modification. . . . . . . . . . . . . . . . . . 32
11.2 Waiver of Compliance. . . . . . . . . . . . . . . . . . . . . 32
11.3 Expenses. . . . . . . . . . . . . . . . . . . . . . . . . . . 32
11.4 Notices.. . . . . . . . . . . . . . . . . . . . . . . . . . . 32
11.5 Assignment. . . . . . . . . . . . . . . . . . . . . . . . . . 33
11.6 Publicity.. . . . . . . . . . . . . . . . . . . . . . . . . . 33
11.7 Headings. . . . . . . . . . . . . . . . . . . . . . . . . . . 33
11.8 Severability. . . . . . . . . . . . . . . . . . . . . . . . . 34
11.9 Governing Law.. . . . . . . . . . . . . . . . . . . . . . . . 34
11.10 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . 34
11.11 Third Parties.. . . . . . . . . . . . . . . . . . . . . . . . 34
11.12 Entire Agreement. . . . . . . . . . . . . . . . . . . . . . . 34
