MERGER AGREEMENT BY AND BETWEEN AREMISSOFT CORPORATION, AREMISSOFT MANUFACTURING (US), INC. AND FOURTH SHIFT CORPORATION
EXHIBIT 2.1
MERGER AGREEMENT
BY AND BETWEEN
AREMISSOFT CORPORATION,
AREMISSOFT MANUFACTURING (US), INC.
AND
FOURTH SHIFT CORPORATION
TABLE OF CONTENTS
Exhibit
A1—Articles of Merger
Exhibit A2—Certificate of Merger
Exhibit B—Form of Letter of Transmittal
Exhibit C—Form of Opinion of Counsel to Fourth Shift
Exhibit D—Form of Opinion of Counsel to AremisSoft and AremisSoft
Manufacturing
Disclosure Schedule—Exceptions to Representations and Warranties
This Agreement is entered into as of February 26, 2001, by and between AremisSoft Corporation, a Delaware corporation ("AremisSoft"), AremisSoft Manufacturing (US), Inc., a Delaware corporation and a wholly–owned Subsidiary of AremisSoft ("AremisSoft Manufacturing"), and FOURTH SHIFT CORPORATION, a Minnesota corporation ("Fourth Shift"). AremisSoft, AremisSoft Manufacturing, and Fourth Shift are referred to collectively herein as the "Parties."
This Agreement contemplates a transaction in which AremisSoft will acquire all of the outstanding capital stock of Fourth Shift for cash through a reverse subsidiary merger of AremisSoft Manufacturing with and into Fourth Shift.
Now, therefore, in consideration of the premises and the mutual promises herein made, and in consideration of the representations, warranties, and covenants herein contained, the Parties agree as follows.
"Affiliates" has the meaning set forth in Rule 12b-2 of the regulations promulgated under the Securities Exchange Act.
"Affiliated Group" means any affiliated group within Code §1504(a) or any similar group defined under similar provision of state, local or foreign law.
"Agreement" means this Merger Agreement.
"Acquisition Event" means the consummation of any transaction, or series of transactions, that result in any Person, entity, or group acquiring more than 50% of the outstanding Fourth Shift Shares or assets of Fourth Shift (including through any merger or business combination).
"AremisSoft" has the meaning set forth in the preface above.
"AremisSoft Manufacturing" has the meaning set forth in the preface above.
"Articles of Merger" has the meaning set forth in Section 2(c).
"Certificate of Merger" has the meaning set forth in §2(c) below.
"Closing" has the meaning set forth in §2(b) below.
"Closing Date" has the meaning set forth in §2(b) below.
"Code" means the Internal Revenue Code of 1983, as amended.
"Confidential Information" means any information concerning the businesses and affairs of Fourth Shift and its Subsidiaries that is not already generally available to the public.
"Confidentiality Agreements" means those certain confidentiality and non-disclosure letter agreements dated as of December 18, 2000 and as of February 20, 2001 between Fourth Shift and AremisSoft.
"Definitive Proxy Materials" means the definitive proxy materials relating to the Special Meeting.
"Delaware General Corporation Law" means the General Corporation Law of the State of Delaware, as amended.
"Disclosure Schedule" has the meaning set forth in §3 below.
"Dissenting Share" means any Fourth Shift Share which any stockholder who or which has exercised his or its appraisal rights under Minnesota Law holds of record.
"Effective Time" has the meaning set forth in §2(d)(i) below.
"Employee Benefit Plan" means any "employee benefit plan" (as such term is defined in ERISA §3(3)) and any other employee benefit plan, program or arrangement of any kind.
"ERISA" means the Employee Retirement Income Security Act of 1974, as amended.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Executive Officer" of Fourth Shift means X. X. Xxxxxxx, X. X. Xxxxxxxx, X. X. Xxxxxx and X. Xxxxxxxxx.
"Fairness Opinion" has the meaning set forth in §5(d) below.
"Fourth Shift Option" has the meaning set forth in §2(g) below.
"Fourth Shift" has the meaning set forth in the preface above.
"Fourth Shift Share" means any share of the Common Stock, $.01 par value per share, of Fourth Shift.
"Fourth Shift Stockholder" means any Person who or which holds any Fourth Shift Shares.
"GAAP" means United States generally accepted accounting principles as in effect from time to time.
"Intellectual Property" means (a) all inventions (whether patentable or unpatentable and whether or not reduced to practice), all improvements thereto, and all patents, patent applications, and patent disclosures, together with all reissuances, continuations, continuations-in-part, revisions, extensions, and reexaminations thereof, (b) all trademarks, service marks, trade dress, logos, trade names, and corporate names, together with all translations, adaptations, derivations, and combinations thereof and including all goodwill associated therewith, and all applications, registrations, and renewals in connection therewith, (c) all copyrightable works, all copyrights, and all applications, registrations, and renewals in connection therewith, (d) all mask works and all applications, registrations, and renewals in connection therewith, (e) all trade secrets and confidential business information (including ideas, research and development, know-how, formulas, compositions, manufacturing and production processes and techniques, technical data, designs, drawings, specifications, customer and supplier lists, pricing and cost information, and business and marketing plans and proposals), (f) all computer software (including data and related documentation), (g) all other proprietary rights, and (h) all copies and tangible embodiments thereof (in whatever form or medium).
"Knowledge" means actual knowledge after reasonable investigation.
"Liability" means any liability (whether known or unknown, whether asserted or unasserted, whether absolute or contingent, whether accrued or unaccrued, whether liquidated or unliquidated, and whether due or to become due) including any liability for Taxes.
"Material Adverse Effect" means, unless the context otherwise requires, an event that, considered individually or in the aggregate with other events, would have a material adverse effect on the business, financial condition or properties of Fourth Shift and its Subsidiaries, or on the consummation of the transactions contemplated hereby.
"Merger" has the meaning set forth in §2(a) below.
"Merger Consideration" has the meaning set forth in §2(d)(v) below.
"Minnesota Law" shall mean the general corporate and business laws and statutes of the State of Minnesota, as amended.
"Most Recent Fiscal Quarter End" has the meaning set forth in §3(f) below.
"Ordinary Course of Business" means the ordinary course of business consistent with past custom and practice (including with respect to quantity and frequency).
"Party" has the meaning set forth in the preface above.
"Paying Agent" means the Person who shall deliver payment of the Merger Consideration to the Fourth Shift Stockholders. Such entity shall be designated by AremisSoft, subject to the approval of Fourth Shift, which approval shall not be unreasonably withheld.
"Payment Fund" has the meaning set forth in §2(e) below.
"Person" means an individual, a partnership, a corporation, an association, a joint stock company, a trust, a joint venture, an unincorporated organization, or a governmental entity (or any department, agency, or political subdivision thereof).
"Pre-Closing Funds" has the meaning set forth in §2(e) below.
"Public Report" has the meaning set forth in §3(e) below.
"Requisite Stockholder Approval" means the affirmative vote of the holders of a majority of Fourth Shift Shares in favor of this Agreement and the Merger.
"Rights Agreement" means that certain Rights Agreement dated December 16, 1998 between Fourth Shift and Xxxxx Fargo Bank (formerly Norwest Bank Minnesota National Association).
"Rights Plan" shall mean the Shareholder Rights Plan pursuant to which each holder of a Fourth Shift Share has a right to purchase 1/100th of a share of "Series A Junior Participating Preferred Stock," or in certain events common stock, as described in the Rights Agreement.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Security Interest" means any mortgage, pledge, lien, encumbrance, charge, or other security interest, other than (a) mechanic's, materialman's, and similar liens, (b) liens for taxes not yet due and payable or for taxes that the taxpayer is contesting in good faith through appropriate proceedings, (c) purchase money liens and liens securing rental payments under capital lease arrangements, and (d) other liens arising in the Ordinary Course of Business and not incurred in connection with the borrowing of money.
"Special Meeting" has the meaning set forth in §5(c)(ii) below.
"Stock Plans" means Fourth Shift's 1989 Stock Option Plan, 1993 Stock Option Plan, 1994 Stock Purchase Plan, 2001 Stock Purchase Plan, 2001 Stock Option Plan and any similar plans of Fourth Shift which may be converted by the holders into the capital stock of Fourth Shift.
"Subsidiary" means any corporation with respect to which a specified Person (or a Subsidiary thereof) owns a majority of the common stock or has the power to vote or direct the voting of sufficient securities to elect a majority of the directors.
"Surviving Corporation" has the meaning set forth in §2(a) below.
"Takeover Proposal" means any tender or exchange offer, proposal for a merger, consolidation or other business combination involving Fourth Shift or any of its Subsidiaries or any proposal or offer to acquire in any manner a substantial equity interest in, or a substantial portion of the assets of, Fourth Shift or its Subsidiaries other than the transactions contemplated by this Agreement.
"Tax" means any federal, state, local, or foreign income, gross receipts, license, payroll, employment, excise, severance, stamp, occupation, premium, windfall profits, environmental (including taxes under Code §59A), customs duties, capital stock, franchise, profits, withholding, social security (or similar), unemployment, disability, real property, personal property, sales, use, transfer, registration, value added, alternative or add-on minimum, estimated, or other tax of any kind whatsoever, including any interest, penalty, or addition thereto, whether disputed or not.
"Tax Return" means any return, declaration, report, claim for refund, or information return or statement relating to Taxes, including any schedule or attachment thereto, and including any amendment thereof.
"Trigger Event" has the meaning set forth in Section 5(i) below.
c. Actions at the Closing. At the Closing, (i) Fourth Shift will deliver to AremisSoft and AremisSoft Manufacturing the various certificates, instruments, and documents referred to in §6(a) below, (ii) AremisSoft and AremisSoft Manufacturing will deliver to Fourth Shift the various certificates, instruments, and documents referred to in §6(b) below, (iii) Fourth Shift will file with the Secretary of State of the State of Minnesota Articles of Merger in substantially the form attached hereto as Exhibit A1 ("Articles of Merger") and AremisSoft Manufacturing will file with the Secretary of State of the State of Delaware a Certificate of Merger in substantially the form attached hereto as Exhibit A2 (the "Certificate of Merger"), and (iv) AremisSoft will cause the Surviving Corporation to deliver the Payment Fund to the Paying Agent in the manner provided below in this §2.
i. General. The Merger shall become effective at the time (the "Effective Time") Fourth Shift and AremisSoft Manufacturing file the Certificate of Merger with the Secretary of State of the State of Delaware and Articles of Merger with the Secretary of State of the State of Minnesota. The Surviving Corporation may, at any time after the Effective Time, take any action (including executing and delivering any document) in the name and on behalf of either Fourth Shift or AremisSoft Manufacturing in order to carry out and effectuate the transactions contemplated by this Agreement.
i. On or prior to the date of this Agreement, AremisSoft will deliver, or cause AremisSoft Manufacturing to deliver to Xxxxxx Eng & Xxxxxxxx in cash or short term investments the amount of $40.0 million (the "Pre-Closing Funds") which shall be deposited into an interest bearing account or held by Xxxxxx Eng & Xxxxxxxx for retention until the Effective Time. AremisSoft shall cause Xxxxxx Eng & Xxxxxxxx to maintain the Pre-Closing Funds at all times prior to the Effective Time; provided, however, that AremisSoft may cause Xxxxxx Eng & Xxxxxxxx to invest the cash portion of the Pre-Closing Funds in the same manner, as provided for in §2(e)(ii), as it may cause the Paying Agent to invest the cash portion of the Payment Fund. From time to time prior to the Effective Time and upon the reasonable written request of Fourth Shift, AremisSoft shall cause Xxxxxx Eng & Xxxxxxxx to verify to Fourth Shift the then current amount of the Pre-Closing Funds. At the Effective Time, (A) AremisSoft shall cause Xxxxxx Eng & Xxxxxxxx to deliver the Pre-Closing Funds to the Paying Agent and, if necessary, will deliver additional cash in an aggregate amount sufficient for the Paying Agent to make full payment of the Merger Consideration to the holders of all of the outstanding Fourth Shift Shares (other than any Dissenting Shares) (the "Payment Fund") and (B) AremisSoft will cause the Paying Agent to mail a letter of transmittal (with instructions for its use) in substantially the form attached hereto as Exhibit B to each record holder of outstanding Fourth Shift Shares for the holder to use in surrendering the certificates which represented his or its Fourth Shift Shares against payment of the Merger Consideration. No interest will accrue or be paid to the holder of any outstanding Fourth Shift Shares.
ii. AremisSoft may cause the Paying Agent to invest the cash included in the Payment Fund in one or more investments; provided, however, that the terms and conditions of the investments shall be such as to permit the Paying Agent to make prompt payment of the Merger Consideration as necessary. AremisSoft may cause the Paying Agent to pay over to the Surviving Corporation any net earnings with respect to the investments, and AremisSoft will cause the Surviving Corporation to replace promptly any portion of the Payment Fund which the Paying Agent loses through investments.
iii. AremisSoft may cause the Paying Agent to pay over to the Surviving Corporation any portion of the Payment Fund (including any earnings thereon) remaining 180 days after the Effective Time, and thereafter all former stockholders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat, and other similar laws) as general creditors thereof with respect to the cash payable upon surrender of their certificates.
iv. AremisSoft shall cause the Surviving Corporation to pay all charges and expenses of the Paying Agent.
Participating Preferred Stock." As of the date of this Agreement there were 10,825,081 Fourth Shift Shares, and no shares of any other class or series, issued and outstanding. All of the issued and outstanding Fourth Shift Shares have been duly authorized and are validly issued, fully paid, and nonassessable. There are 2,912,137 Fourth Shift Shares reserved for issuance pursuant to the Stock Plans, of which options to purchase up to 2,409,875 Fourth Shift Shares are issued and outstanding, and 22,500 Fourth Shift Shares are reserved for issuance upon exercise of options granted outside the Stock Plans and, except for rights outstanding under the Rights Plan, there are no other outstanding or authorized warrants, purchase rights, subscription rights, conversion rights, exchange rights, or other contracts or commitments that could require Fourth Shift to issue, sell, or otherwise cause to become outstanding any of its capital stock. There are no outstanding or authorized stock appreciation, phantom stock, profit participation or similar rights with respect to Fourth Shift. There are no outstanding bonds, debentures or other obligations in which the holders have the right to vote (or that are convertible or exercisable for securities having the right to vote) with the Fourth Shift Shares or any matter. There are no Fourth Shift Shares reserved for issuance other than as provided in this §3(b) and there are no programs in place, nor any contractual obligations of Fourth Shift or its Subsidiaries to repurchase, redeem or otherwise acquire any shares of the capital stock of Fourth Shift.
f. Financial Statements. Fourth Shift has filed Quarterly Reports on Form 10-Q for the fiscal quarters ended September 30, 2000, June 30, 2000, and March 31, 2000, and an Annual Report on Form 10-K for the fiscal year ended December 31, 1999 and has delivered to AremisSoft a preliminary version of its financial statements for the year ended December 31, 2000 (the "Most Recent Fiscal Quarter End"). Such preliminary financial statements, and the financial statements included in or incorporated by reference into these Public Reports (including the related notes and schedules) have been prepared in accordance with GAAP applied on a consistent basis throughout the periods covered thereby, present fairly the financial condition of Fourth Shift and its Subsidiaries as of the indicated dates and the results of operations of Fourth Shift and its Subsidiaries for the indicated periods, are correct and complete in all respects, and are consistent with the books and records of Fourth Shift and its Subsidiaries; provided, however, that the interim statements are subject to normal year-end adjustments (which will not be material, individually or in the aggregate) and lack footnotes and other presentation items.
i. none of Fourth Shift and its Subsidiaries has sold, leased, transferred, or assigned any of its assets, tangible or intangible, other than for a fair consideration in the Ordinary Course of Business;
ii. none of Fourth Shift and its Subsidiaries has entered into any agreement, contract, lease, or license (or series of related agreements, contracts, leases, and licenses) outside the Ordinary Course of Business;
iii. no party (including any of Fourth Shift and its Subsidiaries) has accelerated, terminated, modified, or cancelled any agreement, contract, lease, or license (or series of related agreements, contracts, leases, and licenses) to which any of Fourth Shift and its Subsidiaries is a party or by which any of them is bound;
iv. none of Fourth Shift and its Subsidiaries has imposed any Security Interest upon any of its assets, tangible or intangible;
v. none of Fourth Shift and its Subsidiaries has made any capital investment in, any loan to, or any acquisition of the securities or assets of, any other Person (or series of related capital investments, loans, and acquisitions);
vi. none of Fourth Shift and its Subsidiaries has issued any note, bond, or other debt security or created, incurred, assumed, or guaranteed any indebtedness for borrowed money or capitalized lease obligation either involving more than $10,000 singly or $100,000 in the aggregate;
vii. none of Fourth Shift and its Subsidiaries has delayed or postponed the payment of accounts payable and other Liabilities outside the Ordinary Course of Business;
viii. none of Fourth Shift and its Subsidiaries has cancelled, compromised, waived, or released any right or claim (or series of related rights and claims);
ix. none of Fourth Shift and its Subsidiaries has granted any license or sublicense of any rights under or with respect to any Intellectual Property, except licenses of its software and services in the Ordinary Course of Business;
x. none of Fourth Shift and its Subsidiaries has issued, sold, or otherwise disposed of any of its capital stock, or granted any options, warrants, or other rights to purchase or obtain (including upon conversion, exchange, or exercise) any of its capital stock;
xi. none of Fourth Shift and its Subsidiaries has declared, set aside, or paid any dividend or made any distribution with respect to its capital stock (whether in cash or in kind) or redeemed, purchased, or otherwise acquired any of its capital stock;
xii. none of Fourth Shift and its Subsidiaries has made any loan to, or entered into any other transaction with, any of its directors, officers, and employees;
xiii. none of Fourth Shift and its Subsidiaries has entered into any employment contract or collective bargaining agreement, written or oral, or modified the terms of any existing such contract or agreement;
xiv. none of Fourth Shift and its Subsidiaries has adopted, amended, modified, or terminated any bonus, profit–sharing, incentive, severance, or other plan, contract, or commitment for the benefit of any of its directors, officers, and employees (or taken any such action with respect to any other Employee Benefit Plan);
xv. there has not been any other material occurrence, event, incident, action, failure to act, or transaction outside the Ordinary Course of Business involving any of Fourth Shift and its Subsidiaries; and
xvi. none of Fourth Shift and its Subsidiaries has committed to any of the foregoing.
i. Each of Fourth Shift and its Subsidiaries has filed all Tax Returns that it was required to file. All such Tax Returns were correct and complete in all respects. Fourth Shift and its Subsidiaries (whether or not shown on any Tax Return) have paid all Taxes required to be paid, (except where the failure to pay the same would not have a Material Adverse Effect). None of Fourth Shift and its Subsidiaries currently is the beneficiary of any extension of time within which to file any Tax Return. No claim has ever been made by an authority in a jurisdiction where any of Fourth Shift and its Subsidiaries does not file Tax Returns that it is or may be subject to taxation by that jurisdiction. There are no Security Interests on any of the assets of any of Fourth Shift and its Subsidiaries that arose in connection with any failure (or alleged failure) to pay any Tax.
ii. Each of Fourth Shift and its Subsidiaries has withheld and paid all Taxes required to have been withheld and paid in connection with amounts paid to any employee, independent contractor, creditor, stockholder, or other third party.
iii. No Executive Officer has Knowledge of any pending or proposed assessment against Fourth Shift for additional Taxes for any period for which Tax Returns have been filed. There is no dispute or claim concerning any Tax Liability of any of Fourth Shift and its Subsidiaries either (A) claimed or raised by any authority in writing (including any audit of any Tax Return) or (B) known to the Executive Officers of Fourth Shift based upon personal contact with any agent of such authority.
iv. None of Fourth Shift and its Subsidiaries has waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency.
v. None of Fourth Shift and its Subsidiaries has filed a consent under Code §341(f) concerning collapsible corporations. None of Fourth Shift and its Subsidiaries has made any payments, is obligated to make any payments, or is a party to any agreement that under certain circumstances could obligate it to make any payments that will not be deductible under Code §280G. None of Fourth Shift and its Subsidiaries has been a United States real property holding corporation within the meaning of Code §897(c)(2) during the applicable period specified in Code §897(c)(1)(A)(ii). None of Fourth Shift and its Subsidiaries is a party to any Tax allocation or sharing agreement. None of Fourth Shift and its Subsidiaries (A) has been a member of an Affiliated Group filing a consolidated federal income Tax Return (other than a group the common parent of which was Fourth Shift) or (B) has any Liability for the Taxes of any Person (other than any of Fourth Shift and its Subsidiaries) under Reg. §1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise.
(vi) The financial statement for the Most Recent Quarter End reflect an adequate reserve for all current Taxes payable by Fourth Shift and its Subsidiaries.
(i) None of Fourth Shift and its Subsidiaries owns any real property.
(ii) With respect to each such parcel of real property leased by Fourth Shift and its Subsidiaries:
(1) the lease or sublease is in full force and effect and Fourth Shift or such subsidiary has a valid leasehold interest in the property subject to such lease;
(2) Fourth Shift or such subsidiary is not in breach or default under such lease or sublease, and no event has occurred which, with notice or lapse of time, would constitute a breach or default by Fourth Shift or such subsidiary or permit termination, modification, or acceleration thereunder;
(3) none of the Executive Officers has Knowledge of any breach or default by any other party to any such lease or sublease;
(4) no party to the lease or sublease has notified Fourth Shift that it has repudiated any provision thereof;
(5) there are no disputes, oral agreements, or forbearance programs in effect as to the lease or sublease;
(6) none of Fourth Shift and its Subsidiaries has assigned, transferred, conveyed, mortgaged, deeded in trust, or encumbered any interest in the leasehold or subleasehold;
(7) to the Knowledge of the Executive Officers, all facilities leased or subleased thereunder have received all approvals of governmental authorities (including licenses and permits) required in connection with the operation thereof by Fourth Shift and its Subsidiaries and have been operated and maintained by Fourth Shift and its Subsidiaries in accordance with applicable laws, rules and regulations; and
(8) all facilities leased or subleased thereunder are supplied with utilities and other services necessary for the operation of said facilities.
i. Fourth Shift and its Subsidiaries own or have the right to use pursuant to license, sublicense, agreement, or permission all Intellectual Property necessary for the operation of the businesses of Fourth Shift and its Subsidiaries as presently conducted and as presently proposed to be conducted. Each of Fourth Shift and its Subsidiaries has taken all necessary action to maintain and protect each item of Intellectual Property that it owns or uses and the consummation of the transactions contemplated hereby will not materially alter the terms and conditions of such ownership or use.
ii. None of Fourth Shift and its Subsidiaries has received notice of, nor do the Executive Officers have Knowledge of any facts that would indicate the likelihood of, any interference, infringement or misappropriation of its Intellectual Property, or any conflict with the Intellectual Property rights of third parties, and, except as disclosed in §4(m)(ii) of the Disclosure Schedule, none of Fourth Shift and its Subsidiaries has received during the past three (3) years any written charge, complaint, claim, demand or notice alleging any such interference, infringement or misappropriation (including any claim that Fourth Shift or its Subsidiaries must license or refrain from using any Intellectual Property rights of any third party).
iii. §4(m)(iii) of the Disclosure Schedule identifies each patent or registration which has been issued to Fourth Shift or its Subsidiaries and each trade name or unregistered trademark used by any of Fourth Shift and its Subsidiaries in connection with any of its businesses. With respect to each item of Intellectual Property required to be identified in §4(m)(iii) of the Disclosure Schedule:
(1) Fourth Shift and its Subsidiaries possess all right, title, and interest in and to the item, free and clear of any Security Interest, license, or other restriction;
(2) the item is not subject to any outstanding injunction, judgment, order, decree, ruling, or charge;
(3) no action, suit, proceeding, hearing, investigation, charge, complaint, claim, or demand is pending or is threatened which challenges the legality, validity, enforceability, use, or ownership of the item; and
(D) none of Fourth Shift and its Subsidiaries has any agreement to indemnify any Person for or against any interference, infringement or misappropriation with respect to the item.
iv. §4(m)(iv) of the Disclosure Schedule identifies each item of Intellectual Property that any third party owns, that any of Fourth Shift and its Subsidiaries uses pursuant to license, sublicense, agreement, or permission and that is material to the business of Fourth Shift and its Subsidiaries. Fourth Shift and its Subsidiaries have delivered to AremisSoft and/or AremisSoft Manufacturing correct and complete copies of all such material licenses, sublicenses, agreements, and permissions (as amended to date). With respect to each item of Intellectual Property required to be identified in §4(m)(iv) of the Disclosure Schedule:
(1) the license, sublicense, agreement, or permission covering the item is legal, valid, binding, enforceable, and in full force and effect;
(2) Fourth Shift is not in breach or default of the license, sublicense, agreement, or permission, and no event has occurred which with notice or lapse of time would constitute a breach or default or permit termination, modification, or acceleration thereunder;
(3) the Executive Officers do not have Knowledge of any repudiation of any material provision of any such license, sublicense, agreement, or permission;
(4) none of Fourth Shift and its Subsidiaries has granted any sublicense or similar right with respect to the license, sublicense, agreement, or permission except in the Ordinary Course of Business;
(E) to the Knowledge of Fourth Shift, its Subsidiaries and the Executive Officers, the consummation of the transactions contemplated hereby will not result in the termination or impairment of the Intellectual Property of Fourth Shift and its Subsidiaries.
i. any agreement (or group of related agreements) for the purchase or sale of more than $25,000 per annum of raw materials, commodities, supplies, products, or other personal property, or for the furnishing or receipt of services, the performance of which will extend over a period of more than one year, result in a material loss to any of Fourth Shift and its Subsidiaries;
ii. any agreement concerning a partnership or joint venture;
iii. any agreement (or group of related agreements) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, or under which it has imposed a Security Interest on any of its assets, tangible or intangible;
iv. any agreement concerning confidentiality or noncompetition;
v. any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or other material plan or arrangement for the benefit of its current or former directors, officers, and employees;
vi. any collective bargaining agreement;
vii. any agreement under which it has advanced or loaned any amount to any of its directors, officers, and employees outside the Ordinary Course of Business;
(viii) any agreement providing for payments between Fourth Shift and its Subsidiaries; or
viii. any agreement under which the consequences of a default or termination could have a Material Adverse Effect on the business, financial condition, operations, results of operations, or future prospects of any of Fourth Shift and its Subsidiaries.
p. Insurance. The Disclosure Schedule, under the caption referencing this Section (p), lists and briefly describes each insurance policy maintained by Fourth Shift and its Subsidiaries with respect to the properties, assets and operations of Fourth Shift and its Subsidiaries and sets forth the date of expiration of each such insurance policy. All of such insurance policies are in full force and effect and are issued by insurers of recognized responsibility. Fourth Shift and its Subsidiaries are not in default with respect to its obligations under any of such insurance policies. Each of Fourth Shift and its Subsidiaries has been covered during the past 5 years by insurance in scope and amount customary and reasonable for the businesses in which it has engaged during the aforementioned period.
i. §3(r) of the Disclosure Schedule lists each Employee Benefit Plan that Fourth Shift and its Subsidiaries maintains, to which Fourth Shift and its Subsidiaries contribute, or with respect to which any of Fourth Shift and its Subsidiaries has any material Liability or potential Liability.
(1) Each such Employee Benefit Plan (and each related trust, insurance contract, or fund) has been maintained, funded and administered in accordance with the terms of such Employee Benefit Plan and complies in form and in operation in all material respects with the applicable requirements of ERISA, the Code, and other applicable laws.
(2) All contributions (including all employer contributions and employee salary reduction contributions) which are due have been made within the time period prescribed by ERISA to each such Employee Benefit Plan which is an Employee Pension Benefit Plan and all contributions for any period ending on or before the Closing Date which are not yet due have been made to each such Employee Pension Benefit Plan or accrued in accordance with the past custom and practice of Fourth Shift and its Subsidiaries. All premiums or other payments for all periods ending on or before the Closing Date have been paid with respect to each such Employee Benefit Plan which is an Employee Welfare Benefit Plan.
(3) Each such Employee Benefit Plan which is intended to meet the requirements of a "qualified plan" under Code §401(a) has received a determination from the Internal Revenue Service that such Employee Benefit Plan is so qualified, and nothing has occurred since the date of such determination that could adversely affect the qualified status of any such Employee Benefit Plan.
(u) Rights Agreement. All requisite corporate action by Fourth Shift has been taken or will be taken promptly to (i) render the Rights Agreement inapplicable with respect to the Merger and the transactions contemplated hereby, (ii) ensure that neither AremisSoft or AremisSoft Manufacturing nor any of their Affiliates is considered to be an Acquiring Person or an Adverse Person (as defined in the Rights Agreement) and (iii) ensure that neither the entering into of this Agreement, the announcement or the consummation of the Merger shall trigger a Distribution Date (as defined in the Rights Agreement).
4. Representations and Warranties of AremisSoft and AremisSoft Manufacturing. Each of AremisSoft and AremisSoft Manufacturing represents and warrants to Fourth Shift that the statements contained in this §4 are correct and complete as of the date of this Agreement and will be correct and complete as of the Closing Date (as though made then and as though the Closing Date were substituted for the date of this Agreement throughout this §4), except as set forth in the Disclosure Schedule. The Disclosure Schedule will be arranged in paragraphs corresponding to the numbered and lettered paragraphs contained in this §4.
c. Noncontravention. Neither the execution and the delivery of this Agreement, nor the consummation of the transactions contemplated hereby, will (i) violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any government, governmental agency, or court to which either AremisSoft or AremisSoft Manufacturing is subject or any provision of the charter or bylaws of either AremisSoft or AremisSoft Manufacturing or (ii) conflict with, result in a breach of, constitute a default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify, or cancel, or require any notice under any agreement, contract, lease, license, instrument, or other arrangement to which either AremisSoft or AremisSoft Manufacturing is a party or by which it is bound or to which any of its assets is subject other than in connection with the provisions of the Delaware General Corporation Law, the Securities Exchange Act, the Securities Act, and the state securities laws, neither AremisSoft nor AremisSoft Manufacturing needs to give any notice to, make any filing with, or obtain any authorization, consent, or approval of any government or governmental agency in order for the Parties to consummate the transactions contemplated by this Agreement.
5. Additional Covenants and Agreements. The Parties agree a s follows with respect to the period from and after the execution of this Agreement.
i. AremisSoft and Fourth Shift will cooperate and prepare and file with the SEC proxy materials under the Securities Exchange Act relating to the Special Meeting. Fourth Shift, with the assistance of AremisSoft, will use its best efforts to respond to the comments of the SEC thereon and will make any further filings (including amendments and supplements) in connection therewith that may be necessary, proper, or advisable. AremisSoft will provide Fourth Shift with whatever information and assistance in connection with the foregoing filing that Fourth Shift reasonably may request.
ii. Fourth Shift will call a special meeting of its stockholders (the "Special Meeting"), as soon as reasonably practicable in order that the stockholders may consider and vote upon the adoption of this Agreement and the approval of the Merger in accordance with Minnesota Law. Fourth Shift will mail the proxy materials to its stockholders as soon as reasonably practicable. The proxy materials will contain the affirmative recommendation of the Board of Directors of Fourth Shift in favor of the adoption of this Agreement and the approval of the Merger; provided, however, that no director or officer of Fourth Shift shall be required to violate any fiduciary duty or other requirement imposed by law in connection therewith.
i. none of Fourth Shift and its Subsidiaries will authorize or effect any change in its charter or bylaws;
ii. none of Fourth Shift and its Subsidiaries will grant any options, warrants, or other rights to purchase or obtain any of its capital stock or issue, sell, or otherwise dispose of any of its capital stock (except upon the conversion or exercise of options, warrants, and other rights currently outstanding);
iii. none of Fourth Shift and its Subsidiaries will split, combine, subdivide or reclassify any Fourth Shift Shares;
iv. none of Fourth Shift and its Subsidiaries will make any acquisition by merger, consolidation or otherwise, or material disposition of inventory, supplies and products, of assets or securities, or permit any assets to become subject to any material lien, encumbrance or Security Interest outside the Ordinary Course of Business;
v. none of Fourth Shift and its Subsidiaries will pay or agree to pay or accelerate the payment of any pension, retirement allowance or other employee benefit not required or contemplated by any of the existing Employee Benefit Plans;
vi. none of Fourth Shift and its Subsidiaries will declare, set aside, or pay any dividend or distribution with respect to its capital stock (whether in cash or in kind), or redeem, repurchase, or otherwise acquire any of its capital stock;
vii. none of Fourth Shift and its Subsidiaries will issue any note, bond, or other debt security or create, incur, assume, or guarantee any indebtedness for borrowed money or capitalized lease obligation outside the Ordinary Course of Business;
viii. none of Fourth Shift and its Subsidiaries will impose any Security Interest upon any of its assets outside the Ordinary Course of Business;
ix. none of Fourth Shift and its Subsidiaries will make any capital investment in, make any loan to, or acquire the securities or assets of any other Person outside the Ordinary Course of Business;
x. none of Fourth Shift and its Subsidiaries will make any change in employment terms, including any increases in compensation, for any of its directors, officers, and employees outside the Ordinary Course of Business;
1) none of Fourth Shift and its Subsidiaries shall issue any press release or make any public announcements regarding the business, prospects or financial condition of Fourth Shift and its Subsidiaries; provided, however, that Fourth Shift and its Subsidiaries may make any public disclosure it believes in good faith, after consultation with its counsel, is required by applicable law or any listing or trading agreement concerning its publicly–traded securities (in which case Fourth Shift will use its best efforts to advise AremisSoft prior to making the disclosure); and
xi. none of Fourth Shift and its Subsidiaries will commit to any of the foregoing.
any Takeover Proposal. Fourth Shift and its Subsidiaries, directors, employees, representatives and agents may furnish information or access to any person made after the date hereof which is required as a result of their fiduciary duties and was not initiated, solicited or knowingly encouraged by Fourth Shift and its Subsidiaries or any of its Affiliates or any of its or their respective officers, directors, employees, representatives or agents after the date hereof (with respect to Confidential Information, pursuant to appropriate confidentiality agreements), and may participate in discussions and negotiate with such entity or group concerning any Takeover Proposal, only if such entity or group has submitted a bona fide proposal to the Board of Directors of Fourth Shift relating to any such transaction and (i) if the Board of Directors of Fourth Shift determines in good faith, after receiving advice from its independent financial advisor, that such entity or group has submitted to Fourth Shift a Takeover Proposal which is reasonably likely to be superior to the Merger and other transactions contemplated by this Agreement, and (ii) if the Board of Directors of Fourth Shift determines, in its good faith judgment, based on the opinion of outside legal counsel to Fourth Shift, that failing to take such action would constitute a breach of such Board's fiduciary obligations under applicable law. Fourth Shift shall promptly notify AremisSoft if any proposal or offer, or any inquiry or contact with any Person with respect thereto, is made and shall, in any such notice to AremisSoft, indicate in reasonable detail the identity of the offeror and the terms and conditions of any proposal or offer, or any such inquiry or contact. Fourth Shift will promptly provide to AremisSoft any non-public information concerning Fourth Shift provided to any other person which was not previously provided to AremisSoft. Fourth Shift shall keep AremisSoft promptly advised of developments that are likely to cause the Board of Directors of Fourth Shift to modify or amend its recommendation of the Merger and other transactions contemplated by this Agreement. Except as set forth in this Section 5(h), neither Fourth Shift nor any of its Affiliates, nor any of its or their respective officers, directors, employees, representatives or agents, shall, directly or indirectly, knowingly encourage or solicit, participate in or initiate discussions or negotiations with, or provide any information to, any corporation, partnership, person or other entity or group (other than AremisSoft, any Affiliate or associate of AremisSoft, or any designees of AremisSoft), concerning any Takeover Proposal and the Board of Directors shall not recommend that Fourth Shift Stockholders tender their Shares in connection with any tender offer unless the Board of Directors of Fourth Shift determines in its good faith judgment, based on the opinion of independent outside legal counsel to Fourth Shift, that filing to take such action would constitute a breach of its fiduciary duties under applicable law.
i. Termination Fee Payable by Fourth Shift.
(i) In the event that this Agreement is terminated (regardless of whether such termination is by Fourth Shift or AremisSoft) and prior to such termination a Trigger Event shall have occurred, Fourth Shift shall pay to AremisSoft a fee of $2.5 million (the "Termination Fee"). Such fee shall be payable in immediately available funds on the third business day following the termination of this Agreement. Notwithstanding the foregoing, the Termination Fee shall not be payable in the event that (A) the Special Meeting shall have been held, a Trigger Event or proxy solicitation in opposition to the Merger (in anticipation of a Trigger Event) shall not have occurred prior to the voting of the Fourth Shift Shares at the Special Meeting and, following the conclusion of the Special Meeting, the Requisite Stockholder Approval shall not have been obtained, or (B) AremisSoft or AremisSoft Manufacturing breached in any material respect its obligations under this Agreement.
(ii) As used herein, "Trigger Event" shall mean the occurrence of any of the following events:
(A) Fourth Shift, its Subsidiaries or their respective Board of Directors shall have authorized, recommended or filed a Solicitation/Recommendation Statement or other Public Report not opposing any tender or exchange offer, or authorized, recommended or publicly announced its intention to enter into any merger (other than the Merger), consolidation, liquidation, dissolution, business combination, recapitalization, acquisition or disposition of a material amount of assets or securities or any comparable transaction which has not been consented to in writing by AremisSoft;
(B) the Board of Directors of Fourth Shift withdraws or materially modifies its authorization, approval or recommendation to the Fourth Shift Stockholders with respect to the Merger or this Agreement, unless such withdrawal or modification results solely from a material breach by AremisSoft of this Agreement which AremisSoft fails to cure within ten (10) business days after notice thereof is received from Fourth Shift;
(C) in the event a proxy solicitation in opposition to the Merger shall have occurred prior to the voting of the Fourth Shift Shares at the Special Meeting and thereafter any person, entity or "group" (as that term is used in §13(d)(3) of the Exchange Act (other than its Affiliates) that sponsored, directly or indirectly, promoted or participated in such proxy solicitation shall, within twelve (12) months from the date of termination of this Agreement, have commenced a tender offer for at least a majority of the outstanding Fourth Shift Shares at a price in excess of $3.70 per Fourth Shift Share or shall have become the "beneficial owner" (as defined in Rule 13d-3 promulgated under the Exchange Act) of a majority of the then outstanding Fourth Shift Shares; or
(D) Fourth Shift shall have taken any action to amend the Rights Agreement, or to redeem the rights thereunder, with respect to an offer other than the Merger contemplated hereby.
j. Directors' and Officers' Indemnification and Insurance. From and after the Effective Time, AremisSoft shall, and shall cause the Surviving Company to, jointly and severally, indemnify, defend and hold harmless the present and former officers and directors of Fourth Shift and persons who become officers or directors prior to the Effective Time (collectively, the "Indemnitees") against all losses, expenses, (including reasonable attorney's fees) claims, damages, liabilities, costs or judgments or amounts that are paid in settlement with the approval of AremisSoft (which approval shall not be unreasonably withheld) arising out of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement) to the full extent permitted or required as of the date hereof by Fourth Shift's articles of incorporation and bylaws (and shall also advance expenses as incurred to the fullest extent permitted under the Fourth Shift's articles of incorporation and bylaws, provided that the person to whom expenses are advanced provides the undertaking to repay such advances if and as contemplated by applicable law or such articles of incorporation and bylaws). The Surviving Company shall have in place extended reporting endorsements (tail coverage) on the fiduciary liability, professional liability, and directors and officers liability policies currently covering Fourth Shift or any of the Indemnitees required to be indemnified by AremisSoft, for a period of three (3) years commencing as of the Effective Time. In connection with such efforts, the Surviving Company will complete accurately in all material respects any insurance applications and forms of the applicable insurer and take any reasonable steps to preserve any claims, including submitting a full and complete list of any potential claims of which the Surviving Company has knowledge, under the policy issued by such insurer. AremisSoft may substitute new directors and officers liability insurance policies from reputable insurance companies the material terms of which, including coverage and amount, are no less favorable in any material respect to the Indemnitees than the insurance coverage otherwise required by this Section (l). Such extended reporting endorsements shall be obtained by Fourth Shift prior to the Closing with premiums in an aggregate amount not to exceed $225,000. Notwithstanding any provisions of this Section (l), failure by the Surviving Company and/or AremisSoft, to have in place such extended reporting endorsements or to provide such similar coverage under AremisSoft's policies shall not in any way affect, lessen or excuse AremisSoft from its obligation to indemnify, defend and hold harmless the Indemnitees to the extent required by this Section (l). In the event any claim, action, suit, proceeding or investigation (a "D&O Claim") for which indemnification is provided under this Section (l) is brought against an Indemnitee (whether arising before or after the Effective Time) after the Effective Time (i) such Indemnitee may retain counsel satisfactory to it (subject to approval by the indemnifying party, which approval shall not be unreasonably withheld, and subject to the terms and conditions of the applicable directors and officers liability insurance or fiduciary liability insurance policies), (ii) the indemnifying party shall pay all reasonable fees and expenses of such counsel for such Indemnitee promptly as statements therefor are received (subject to the ability of the indemnifying party to receive such information relative to the legal services provided as is customarily provided and reasonably requested by the indemnifying party and provided that nothing in this Section (l) shall prevent the indemnifying party from disputing any fees it reasonably believes are not reasonable), and (iii) the indemnifying party will use all reasonable efforts to assist in the vigorous defense of any such matter, provided that the indemnifying party shall not be liable for any settlement of any D&O Claim effected without its written consent, which consent shall not be unreasonably withheld. Any Indemnitee wishing to claim indemnification under this Section (l), upon learning of any such D&O Claim, shall notify the appropriate indemnifying party (but the failure so to notify such indemnifying party shall not relieve the indemnifying party from any liability which it may have under this Section (l) except to the extent such failure materially prejudices such indemnifying party), and shall deliver to such indemnifying party the undertaking contemplated by applicable law. The Indemnitees as a group may retain only one law firm to represent them with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnitees. This Subsection (l) is intended to benefit the Indemnitees, shall be enforceable by each Indemnitee and his or her heirs and representatives, and shall be binding on all successors and assigns of the Surviving Company and AremisSoft.
6. Conditions to Obligation to Close.
i. this Agreement and the Merger shall have received the Requisite Stockholder Approval;
ii. Fourth Shift and its Subsidiaries shall have procured all material third party consents specified in §5(b) above;
iii. the representations and warranties set forth in §3 above shall be true and correct in all material respects at and as of the Closing Date;
iv. Fourth Shift shall have performed and complied with all of its covenants hereunder in all material respects through the Closing Date;
v. no action, suit, or proceeding shall be pending or threatened before any court or quasi–judicial or administrative agency of any federal, state, local, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, (C) affect adversely the right of AremisSoft to own the capital stock of the Surviving Corporation, or (D) have a Material Adverse Effect on the rights of the Surviving Corporation and its Subsidiaries to own its assets and to operate its businesses (an no injunction, judgment, order, decree, ruling, or charge shall be in effect);
vi. Fourth Shift shall have delivered to AremisSoft and AremisSoft Manufacturing a certificate to the effect that each of the conditions specified above in §6(a)(i)–(v) is satisfied in all respects;
vii. AremisSoft and AremisSoft Manufacturing shall have received from counsel to Fourth Shift an opinion in substantially the form and substance as set forth in Exhibit C attached hereto, addressed to AremisSoft and AremisSoft Manufacturing, and dated as of the Closing Date;
viii. AremisSoft and AremisSoft Manufacturing shall have received the resignations, effective as of the Closing, of each director and officer of Fourth Shift and its Subsidiaries, other than those whom AremisSoft shall have specified in writing prior to the Closing;
ix. all actions to be taken by Fourth Shift in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to AremisSoft and AremisSoft Manufacturing.
AremisSoft and AremisSoft Manufacturing may waive any condition specified in this §6(a) if they execute a writing so stating at or prior to the Closing.
i. the representations and warranties set forth in §4 above shall be true and correct in all material respects at and as of the Closing Date;
ii. each of AremisSoft and AremisSoft Manufacturing shall have performed and complied with all of its covenants hereunder in all material respects through the Closing;
iii. no action, suit, or proceeding shall be pending or threatened before any court or quasi–judicial or administrative agency of any federal, state, local, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement, or (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation;
iv. each of AremisSoft and AremisSoft Manufacturing shall have delivered to Fourth Shift a certificate to the effect that each of the conditions specified above in §6(b)(i)–(iii) is satisfied in all respects;
v. this Agreement and the Merger shall have received the Requisite Stockholder Approval;
vi. Fourth Shift shall have received from counsel to AremisSoft and AremisSoft Manufacturing an opinion in substantially the form and substance as set forth in Exhibit D attached hereto, addressed to Fourth Shift, and dated as of the Closing Date; and
vii. all actions to be taken by AremisSoft and AremisSoft Manufacturing in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to Fourth Shift.
Fourth Shift may waive any condition specified in this §6(b) if it executes a writing so stating at or prior to the Closing.
a. Termination of Agreement. Any of the Parties may terminate this Agreement with the prior authorization of its board of directors (whether before or after the Requisite Stockholder Approval) as provided below:
i. the Parties may terminate this Agreement by mutual written consent at any time prior to the Effective Time;
ii. AremisSoft and AremisSoft Manufacturing may terminate this Agreement by giving written notice to Fourth Shift at any time prior to the Effective Time (A) in the event Fourth Shift has breached any material representation, warranty, or covenant contained in this Agreement in any material respect, AremisSoft or AremisSoft Manufacturing has notified Fourth Shift of the breach, and the breach has continued without cure for a period of thirty (30) days after the notice of breach or (B) if the Closing shall not have occurred, by reason of the failure of any condition precedent under §6(a) hereof (unless the failure results primarily from AremisSoft or AremisSoft Manufacturing breaching any representation, warranty, or covenant contained in this Agreement);
iii. Fourth Shift may terminate this Agreement by giving written notice to AremisSoft and AremisSoft Manufacturing at any time prior to the Effective Time (A) in the event AremisSoft or AremisSoft Manufacturing has breached any material representation, warranty, or covenant contained in this Agreement in any material respect, Fourth Shift has notified AremisSoft and AremisSoft Manufacturing of the breach, and in the case of any breach other than a failure to maintain the Pre-Closing Funds in accordance with Section 3(e)(iii) (for which no cure period shall apply) the breach has continued without cure for a period of thirty (30) days after the notice of breach or (B) if the Closing shall not have occurred by reason of the failure of any condition precedent under §6(b) hereof (unless the failure results primarily from Fourth Shift breaching any representation, warranty, or covenant contained in this Agreement);
iv. any Party may terminate this Agreement by giving written notice to the other Party at any time prior to the Effective Time in the event the Fairness Opinion is withdrawn; or
v. any Party may terminate this Agreement by giving written notice to the other Party at any time after the Special Meeting in the event this Agreement and the Merger fail to receive the Requisite Stockholder Approval; or
(vi) either Party may terminate this Agreement if the Closing Date shall not have occurred on or before June 30, 2001, unless the failure results primarily from action or inaction of the Party seeking to terminate this Agreement.
c. No Third–Party Beneficiaries. This Agreement shall not confer any rights or remedies upon any Person other than the Parties and their respective successors and permitted assigns; provided, however, that the provisions in §2 above concerning payment of the Merger Consideration are intended for the benefit of Fourth Shift Stockholders.
| If to Fourth Shift: |
FOURTH SHIFT
CORPORATION Two Xxxxxxxx Xxxxxxxxx, #000 Xxxxxxxxxxx, XX 00000 Attn: Xxxxxx Xxxxxxx |
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| Copy to: |
Xxxxxx &
Whitney LLP Pillsbury Center South 000 Xxxxx Xxxxx Xxxxxx Xxxxxxxxxxx, XX 00000 Attn: Xxxxxx X. Xxxxxx |
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| If to AremisSoft: |
AremisSoft
Corporation or AremisSoft Manufacturing 000 Xxxxxx Xxxxxx, #000 Xxxxxxxx, XX 00000 Attn: Roys Poyiadjis |
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| Copy to: |
Xxxxxx
Eng & Xxxxxxxx 000 Xxxxxxx Xxxx, #0000 Xxxxxxxxxx, XX 00000 Attn: Xxxxx X. Xxxxxx |
Any Party may send any notice, request, demand, claim, or other communication hereunder to the intended recipient at the address set forth above using any other means (including personal delivery, expedited courier, messenger service, telecopy, telex, ordinary mail, or electronic mail), but no such notice, request, demand, claim, or other communication shall be deemed to have been duly given unless and until it actually is received by the intended recipient. Any Party may change the address to which notices, requests, demands, claims, and other communications hereunder are to be delivered by giving the other Parties notice in the manner herein set forth.
i. Governing Law. This Agreement shall be governed by and construed in accordance with the domestic laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.
j. Amendments and Waivers. The Parties may mutually amend any provision of this Agreement at any time prior to the Effective Time with the prior authorization of their respective boards of directors; provided, however, that any amendment effected subsequent to stockholder approval will be subject to the restrictions contained in Minnesota Law. No amendment of any provision of this Agreement shall be valid unless the same shall be in writing and signed by all of the Parties. No waiver by any Party of any default, misrepresentation, or breach of warranty or covenant hereunder, whether intentional or not, shall be deemed to extend to any prior or subsequent default, misrepresentation, or breach of warranty or covenant hereunder or affect in any way any rights arising by virtue of any prior or subsequent such occurrence.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first above written.
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AREMISSOFT CORPORATION, A DELAWARE CORPORATION |
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| By: |
/s/ ROYS
POYIADJIS
|
|
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Roys Poyiadjis, Co-Chief Executive Officer |
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|
FOURTH SHIFT CORPORATION, A MINNESOTA CORPORATION |
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| By: |
/s/ XXXXXX
XXXXXX XXXXXXX
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|
|
Xxxxxx Xxxxxx
Xxxxxxx, Chief Executive Officer |
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AREMISSOFT MANUFACTURING (US), INC., A DELAWARE CORPORATION |
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| By: |
/s/ ROYS
POYIADJIS
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|
|
Roys Poyiadjis, Co-Chief Executive Officer |
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