Tax Sharing Agreement - American Software Inc. and Logility Inc.
TAX SHARING AGREEMENT
THIS TAX SHARING AGREEMENT ("Agreement") is made and entered into as of the
23rd day of January, 1997 by and between AMERICAN SOFTWARE, INC., a Georgia
corporation ("ASI"), and LOGILITY, INC., a Georgia corporation ("Logility").
WITNESSETH:
WHEREAS, ASI is the common parent corporation of an affiliated group of
corporations within the meaning of Section 1504(a) of the Code (as hereinafter
defined);
WHEREAS, ASI beneficially owns all of the issued and outstanding Common
Stock of Logility, and Logility is a member of ASI's consolidated group for
federal income tax purposes;
WHEREAS, the parties are contemplating the possibility that Logility will
issue shares of its Common Stock to the public in an initial public offering
registered under the Securities Act of 1933, as amended;
WHEREAS, the ASI Group (as hereinafter defined) has filed and intends to
file consolidated federal income tax returns as permitted by Section 1501 of the
Code, and Logility and certain members of the ASI Sub-Group (as hereinafter
defined) have filed and intend to file returns relating to Combined State Taxes
(as hereinafter defined);
WHEREAS, Logility desires to engage ASI to provide certain services, and
ASI desires to provide certain services, relating to federal, state, local, and
foreign taxes; and
WHEREAS, ASI and Logility desire to agree upon a method for determining the
financial consequences to each party and their subsidiaries resulting from the
filing of consolidated federal income tax returns and the filing of returns
relating to Combined State Taxes.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, ASI and Logility, for themselves,
and their respective successors and assigns, hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. For purposes of this Agreement, the terms set forth
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below shall have the following meanings, in addition to the terms defined
elsewhere in this Agreement:
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(a) "ASI Group" shall mean, at any time, ASI and each direct and indirect
corporate subsidiary eligible to join with ASI in the filing of a consolidated
federal income tax return.
(b) "ASI Sub-Group" shall mean, at any time, ASI and each of its direct and
indirect corporate subsidiaries other than those subsidiaries that are members
of the Logility Group.
(c) "Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and any successor thereto.
(d) "Combined State Tax" shall mean, with respect to each state or local
taxing jurisdiction, any income, franchise, or similar tax payable to such state
or local taxing jurisdiction in which a member of the Logility Group files tax
returns with a member of the ASI Sub-Group, on a consolidated, combined, or
unitary basis for purposes of such income of franchise tax.
(e) "Deconsolidation" shall mean any event pursuant to which Logility
ceases to be a subsidiary corporation includible in a consolidated tax return of
the ASI Group for Federal Tax purposes.
(f) "Effective Date" has the meaning ascribed to it in Section 4.9.
(g) "Federal Tax" shall mean any tax imposed under Subtitle A of the Code.
(h) "Final Determination" shall mean (i) with respect to Federal Taxes, a
"determination" as defined in Section 1313(a) of the Code or execution of an
Internal Revenue Service Form 870AD and, with respect to taxes other than
Federal Taxes, any final determination of liability in respect of a tax that,
under applicable law, is not subject to further appeal, review, or modification
through proceedings or otherwise, (ii) any final disposition of a tax issue by
reason of the expiration of a statute of limitations, or (iii) the payment of
tax by ASI with respect to any item disallowed or adjusted by any taxing
authority where ASI determines in good faith that no action should be taken to
recoup such payment.
(i) "Initial Public Offering" shall mean the issuance by Logility of shares
of its Common Stock to the public in an initial public offering registered under
the Securities Act of 1933, as amended.
(j) "Logility Combined State Tax Liability" shall mean, with respect to any
taxable year and any jurisdiction, an amount of Combined State Taxes determined
in accordance with the principles set forth in the definition of Logility
Federal Tax Liability; provided, however, that the total amount of the Logility
Combined State Tax Liability shall also include, to the extent not included
after application of the principles set forth in the definition of Logility
Federal Tax Liability, any actual income, franchise, or similar state or local
tax liability (a "State Liability") owed in a jurisdiction (a "Combined
Jurisdiction") in which a member of the Logility Group files tax returns with a
member of the ASI Sub-Group, on a consolidated, combined, or unitary basis, to
the
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extent the Combined State Tax liability exceeds the amount of such liability
that would have been owed had no member of the Logility Group been included in
such returns.
(k) "Logility Federal Tax Liability" shall mean, with respect to any
taxable year, the sum of the Logility Group's Federal Tax liability and any
interest, penalties and other additions to such taxes for such taxable year,
computed as if the Logility Group were not and never were part of the ASI Group,
but rather were a separate affiliated group of corporations filing a
consolidated federal income tax return pursuant to Section 1501 of the Code;
provided, however, that transactions with members of the ASI Sub-Group shall be
reflected according to the provisions of the consolidated return regulations
promulgated under the Code governing intercompany transactions, and that
Deconsolidation will trigger any deferred amounts, excess loss accounts, or
similar items. Such computation shall be made (A) without regard to the income,
deductions (including net operating loss and capital loss deductions), and
credits in any year of any member of the ASI Group that is not a member of the
Logility Group, (B) by taking account of all Tax Assets of the Logility Group
other than any Tax Asset that produces a Tax Savings to ASI in accordance with
Section 2.1(c)(iii), (C) as though the highest rate of tax specified in
subsection (b) of Section 11 of the Code (for any other similar rates applicable
to specific types of income) were the only rate set forth in that subsection,
and with other similar adjustments as described in Section 1561 of the Code, (D)
reflecting the positions, elections, and accounting methods used by ASI in
preparing the consolidated federal income tax return for the ASI Group, and (E)
by not permitting the Logility Group any compensation deductions arising in
respect of the issuance by ASI of ASI stock to any employee of the Logility
Group.
(l) "Logility Group" shall mean, at any time, Logility and any direct or
indirect corporate subsidiaries of Logility that would be eligible to join with
Logility, with respect to Federal Taxes, in the filing of a consolidated federal
income tax return and, with respect to Combined State Taxes, in the filing of a
consolidated, combined, or unitary income or franchise tax return if Logility
were not consolidated, combined, or filing on a unitary basis with any member of
the ASI Sub-Group.
(m) "Post-Deconsolidation Tax Period" means (i) any tax period, or portion
thereof, beginning and ending after the date of Deconsolidation, and (ii) with
respect to a tax period that begins before and ends after the date of
Deconsolidation, such portion of the tax period that commences on the day
immediately after the date of Deconsolidation.
(n) "Pre-Deconsolidation Tax Period" means (i) any tax period, or portion
thereof, beginning and ending before or on the date of Deconsolidation, and (ii)
with respect to a period that begins before and ends after the date of
Deconsolidation, such portion of the tax period ending on and including the date
of Deconsolidation.
(o) "Tax Asset" means any net operating loss, net capital loss, investment
tax credit, foreign tax credit, charitable deduction, or any other deduction,
credit, or tax attribute which could reduce taxes (including, without
limitation, deductions and credits related to alternative minimum taxes);
provided, however, the term "Tax Asset" shall not include any loss, deduction,
credit or other
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tax attribute related to the Business of Logility (as such term is defined in
that certain Subsidiary Formation Agreement between certain members of the ASI
Group and Logility, dated of even date herewith), from a tax period (or portion
thereof) ending on or before the closing date of the Initial Public Offering.
(p) "Tax Savings" means the actual amount of reduction in taxes payable
(including refunds actually received) to a taxing authority with respect to the
then current tax period as a result of a Tax Asset as compared to the taxes that
would have been payable to a taxing authority for that tax period in the absence
of such Tax Asset; provided, however, Tax Savings shall not include any
reduction in alternative minimum tax.
1.2 Internal References. Unless the context indicates otherwise,
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references to Articles, Sections, and paragraphs shall refer to the
corresponding articles, sections, and paragraphs in this Agreement and
references to the parties shall mean the parties to this Agreement.
ARTICLE II
TAX SHARING
2.1 Tax Sharing.
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(a) General. For each taxable year of the ASI Group during which income,
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loss, or credit against tax of the Logility Group is includible in the
consolidated Federal Tax return of the ASI Group, Logility shall pay to ASI an
amount equal to the Logility Federal Tax Liability, and for each taxable period
during which income, loss, or credit against tax of any member of the Logility
Group is includible in a return relating to a Combined State Tax, Logility shall
pay to ASI an amount equal to the Logility Combined State Tax Liability for such
taxable period, each as shown on the Pro Forma Returns (as defined in paragraph
(c) below).
(b) Estimated Payments. For each taxable period, ASI may determine the
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amount of the estimated tax installment of the Logility Federal Tax Liability
(corresponding to ASI's estimated Federal Tax installment), as determined under
the principles of Section 2.1(a). If ASI makes such a determination, Logility
shall, within ten (10) business days of the statutorily mandated payment date,
pay to ASI the amount so determined. For each taxable period, ASI may determine
under provisions of applicable law the amount of the estimated tax installment
of the Logility Combined State Tax Liability (corresponding to the relevant
estimated Combined State Tax installment), as determined under the principles of
Section 2.1(a). If ASI makes such a determination, Logility shall, within ten
(10) business days of the statutorily mandated payment date, pay to ASI the
amount so determined.
(c) Payment of Taxes at Year-End.
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(i) Within thirty (30) days after the date the ASI Group's consolidated
Federal Tax return is filed, ASI shall make available to Logility a pro forma
Federal Tax return (a "Pro Forma Federal Return") of the Logility Group
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reflecting the Logility Federal Tax Liability. Within thirty (30) days after the
date the last Combined State Tax return is filed for the fiscal year to which
such returns relate, ASI shall make available to Logility the relevant pro forma
Combined State Tax Returns (each a "Pro Forma Combined State Return" and
together with the Pro Forma Federal Returns, the "Pro Forma Returns") of the
Logility Group reflecting the relevant Logility Combined State Tax Liability.
The Pro Forma Returns shall be prepared in good faith in a manner generally
consistent with past practice.
(ii) Within ten (10) business days of the statutorily mandated payment
date, Logility shall pay to ASI, or ASI shall pay to Logility, as appropriate,
an amount equal to the difference, if any, between the Logility Federal Tax
Liability reflected on the Pro Forma Federal Return for such year and the
aggregate amount of the estimated installments of the Logility Federal Tax
Liability for such year made pursuant to Section 2.1(b). Within ten (10)
business days of the statutorily mandated payment date, Logility shall pay to
ASI, or ASI shall pay to Logility, as appropriate, an amount equal to the
difference, if any, between the Logility Combined State Tax Liability reflected
on the relevant Pro Forma Combined State Tax Return and the aggregate amount of
the estimated installments paid with respect to the corresponding Logility
Combined State Tax Liability pursuant to Section 2.1(b).
(iii) If, under applicable law and consistent with this Agreement, the ASI
Sub-Group avails itself of a Tax Asset of the Logility Group, ASI shall pay to
Logility an amount equal to the Tax Saving attributable to such Tax Asset, if
and when realized by ASI. The parties agree that all net operating losses and
net capital losses of the ASI Group shall be taken into account by ASI in the
order in which such net operating losses and net capital losses have arisen; all
other Tax Assets of the Logility Group shall be taken into account by ASI in the
above-described manner, subject, however, to the ordering rules then in effect
under the Code.
(iv) In the event that ASI makes a cash deposit with a taxing authority in
order to stop the running of interest or makes a payment of tax and
correspondingly takes action to recoup such payment (such as suing for a
refund), Logility shall pay to ASI an amount equal to Logility's share of the
amount so deposited or paid (calculated in a manner consistent with the
determinations provided in this Article 2). Upon receipt by ASI of a refund of
any amounts paid by it in respect of which Logility shall have advanced an
amount hereunder, ASI shall pay to Logility the amount of such refund, together
with any interest received by it on such refund. If and to the extent that any
claim for refund or contest based thereupon shall be unsuccessful, the payment
by Logility under this Section 2.1(c)(iv) may be credited by ASI toward any of
Logility's obligations under this Section 2.1.
(d) Treatment of Adjustments. If any adjustment is made in a Federal Tax
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return of the ASI Group or in a return relating to a Combined State Tax Return
of the ASI Group, after the filing thereof, in which income or loss of the
Logility Group (or any member thereof) is included, then at the time of a Final
Determination of the adjustment Logility shall pay to ASI, or ASI shall pay to
Logility, as the case may be, the difference between all payments actually made
under Section 2.1 with respect to the taxable year or period covered by such tax
return and all payments that would have been made under Section 2.1 taking such
adjustment into account together
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with any penalties actually paid and interest for each day until the date of
Final Determination calculated at the rate determined, in the case of a payment
by Logility, under Section 6621(a)(2) of the Code and, in the case of a payment
by ASI, under Section 6621(a)(1) of the Code.
(e) Preparation of Returns and Contests. So long as the ASI Group elects
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to file (i) consolidated Federal Tax returns as permitted by Section 1501 of the
Code or (ii) any Combined State Tax return as permitted by applicable state law,
Logility shall consent to the filing of such returns by ASI. ASI shall prepare
and file such returns and any other returns, documents, or statements required
to be filed with the Internal Revenue Service with respect to the determination
of the Federal Tax liability of the ASI Group and with the appropriate taxing
authorities with respect to the determination of a Combined State Tax liability.
With respect to such return preparation, ASI shall act in good faith with regard
to all members included in an applicable return. ASI shall have the right with
respect to any consolidated Federal Tax return or return relating to a Combined
State Tax that it has filed or will file to determine in good faith (i) the
manner in which such returns, documents or statements shall be prepared and
filed, including, without limitation, the manner in which any item of income,
gain, loss, deduction or credit shall be reported, (ii) whether any extensions
should be requested, and (iii) the elections that will be made by any member of
the ASI Group. In addition, ASI shall have the right, in good faith, to (i)
contest, compromise, or settle any adjustment or deficiency proposed, or as a
result of any audit of any Federal Tax return or return relating to a Combined
State Tax, (ii) file, prosecute, compromise or settle any claim for refund, and
(iii) determine whether any refunds shall be received by way of refund or
credited against tax liabilities. In addition, ASI shall prepare and file
ruling requests, and take all other actions on behalf of any member of the ASI
Group that it deems appropriate in providing tax services to the members of the
ASI Group. ASI shall, to the extent such information is available, advise
Logility of any significant Logility tax issue being contested by the federal,
state, local or other relevant taxing authorities, and shall keep Logility
informed with respect to any contest, compromise or settlement thereof.
(f) Foreign Tax Returns. Logility shall not be required to consent to the
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filing of any foreign tax return to be filed on a combined, consolidated, or
unitary basis with the ASI Sub-Group unless and until this Agreement is modified
to take into account the allocation of such foreign tax liability between the
ASI Sub-Group and the Logility Group. The allocation of such foreign tax
liability shall be in accordance with the principles set forth in this
Agreement.
2.2 Reimbursement for Certain Services. ASI shall provide services in
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connection with this Agreement, including, but not limited to, (i) those
services relating to the preparation of returns (including Pro Forma Returns)
described in paragraph 2.1(b) above, and (ii) services relating to the other
activities described in paragraph 2.1(e) above. As compensation for these
services, Logility shall pay ASI a fee calculated on a basis such that ASI is
reimbursed for all direct and indirect costs and expenses incurred with respect
to Logility's share of the overall costs and expenses incurred by ASI with
respect to tax-related services. ASI shall calculate and invoice Logility for
the fee payable, and Logility will pay the invoiced amount in a manner
consistent with the invoice and payment
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procedures provided for in that certain Services Agreement, between ASI, certain
members of the ASI Sub-Group, and Logility, dated of even date herewith.
2.3 Additional Services. ASI will provide the tax services described in
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this Article II with respect to all of the state, local and foreign taxes of
any members of the Logility Group that do not relate to consolidated Federal
Taxes or Combined State Taxes. ASI will provide these services in a manner
consistent with the principles contained in Article II and will be compensated
in the same manner as described in Section 2.2.
ARTICLE III
POST-DECONSOLIDATION
3.1. Additional Rights and Liabilities Post-Deconsolidation.
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(a) Restrictions on Changes. Logility covenants that on or after a
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Deconsolidation it will not, nor will it cause or permit any member of the
Logility Group to make or change any tax election, change any accounting method,
amend any tax return or take any tax position on any tax return, take any other
action, omit to take any action, or enter into any transaction that results in
any in tax liability or reduction of any Tax Asset of the ASI Group or any
member thereof (immediately after the Deconsolidation) in respect of any Pre-
Deconsolidation Tax Period, without first obtaining the written consent of an
authorized representative of ASI.
(b) Option to Reattribute Assets and Allocate Items. In the event of a
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Deconsolidation, ASI may, at its option, elect, and Logility shall join ASI in
electing (if necessary), (i) to reattribute to itself certain Tax Assets of the
Logility Group pursuant to Treasury Regulations Section 1.1502-20(g) and, if ASI
makes such election, Logility shall comply with the requirements of Treasury
Regulations Section 1.1502-20(g)(5)), and (ii) to ratably allocate items (other
than extraordinary items) of the Logility Group in accordance with relevant
provisions of the Treasury Regulations Section 1.1502-76.
(c) Payment of Tax Savings. ASI agrees to pay to Logility the Tax Savings
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received by the ASI Group from the use in any Post-Deconsolidation Tax Period of
a carryover of any Tax Asset of the Logility Group from a Pre-Deconsolidation
Tax Period, if and when such Tax Savings are realized. The parties agree that
all net operating losses and net capital losses of the ASI Group shall be taken
into account by ASI in the order in which such net operating losses and net
capital losses have arisen; all other Tax Assets of the Logility Group shall be
taken into account by ASI in the above-described manner, subject, however, to
the ordering rules then in effect under the Code.
(d) Effect of Final Determination. Any amounts owed by ASI to Logility
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pursuant to Section 3.1(c) shall be paid within 90 days of the filing of the
applicable tax return for the taxable year in which such Tax Savings are
realized. If, subsequent to the payment by ASI to Logility of any such amount,
there shall be (i) a Final Determination which results in a disallowance or a
reduction of any Tax Asset of Logility or (ii) a reduction in the amount of the
Tax Savings realized by the ASI
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Group as a result of any other Tax Asset of ASI that arises in a Post-
Deconsolidation Tax Period, Logility shall repay to ASI, within 90 days of such
event described in (i) or (ii) (an "Event" or, collectively, the "Events") any
amount which would not have been payable to Logility pursuant to this Section
3.1 had the amount of the Tax Savings calculated in Section 3.1(c) been
determined in light of the Events. Logility shall hold ASI harmless for any
penalty or interest payable by any member of the ASI Group, as a result of any
Event. Any such amount shall be paid by Logility to ASI within 90 days of the
payment by ASI or any member of the ASI Group of any such interest or penalty.
Nothing in this Agreement shall require ASI to file a claim for refund of
Federal Taxes or Combined State Taxes which ASI, in its sole discretion,
determines lacks substantial authority, as defined in the Code and the
regulations thereunder.
ARTICLE IV
MISCELLANEOUS
4.1. Limitation of Liability. Neither ASI nor Logility shall be liable to
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the other for any special, indirect, incidental, or consequential damages of the
other arising in connection with this Agreement; provided, however, that in the
event that (i) the Internal Revenue Service (or other competent taxing
authority) asserts a tax liability directly against Logility or any member of
the Logility Group, pursuant to its authority under Treasury Regulation Section
1.1502-6 (or other similar provision of foreign, state, or local law), (ii)
Logility has made all payments and performed all of its obligations otherwise
required of it under this Agreement with respect to such liability or otherwise,
and (iii) ASI was given the opportunity to consent, settle, or compromise such
liability pursuant to Section 2.1(e) of this Agreement, ASI shall indemnify
Logility for actual payments made after a Final Determination with respect to
such liability to the extent that such payments exceed Logility's share of such
liability (calculated in a manner that avoids double-counting under this
Agreement), which share shall be determined in accordance with Article II of
this Agreement.
4.2. Subsidiaries.
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(a) Performance. ASI agrees and acknowledges that ASI shall be responsible
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for the performance of the obligations of each member of the ASI Sub-Group
hereunder applicable to such subsidiary. Logility agrees and acknowledges that
Logility shall be responsible for the performance by each member of the Logility
Group of the obligations hereunder applicable to such member.
(b) Application to Present and Future Subsidiaries. This Agreement is
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being entered into by ASI and Logility on behalf of themselves and each member
of the ASI Sub-Group and the Logility Group, respectively. This Agreement shall
constitute a direct obligation of each such member and shall be deemed to have
been readopted and affirmed on behalf of any corporation which becomes a member
of the ASI Sub-Group or the Logility Group in the future. ASI shall cause each
member of the ASI Group, and Logility shall cause each member of the Logility
Group, to comply fully with the terms of this Agreement. Each party shall, upon
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the written request of the other, cause any of their respective group members to
execute and deliver a counterpart of this Agreement.
4.3. Cooperation. ASI and Logility shall cooperate fully in the
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implementation of this Agreement, including but not limited to, providing
promptly to the requesting party such assistance and documentation as may be
reasonably requested by such party in connection with any of the activities
described in Article II or Article III. In addition, ASI and Logility shall
retain all relevant tax records for relevant open periods in accordance with
past practice.
4.4. Agent. Each member of the Logility Group hereby irrevocably appoints
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ASI as its agent and attorney-in-fact to take any action as ASI may deem
necessary or appropriate to effect Section 2.1 including, without limitation,
those actions specified in Treasury Regulation Section 1.1502-77(a).
4.5. Amendments. This Agreement may not be amended or terminated orally,
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but only by a writing duly executed by or on behalf of the parties hereto. Any
such amendment shall be validly and sufficiently authorized for purposes of this
Agreement if it is signed on behalf of ASI and Logility by any of their
respective presidents or vice presidents.
4.6. Term. Subject to Article III, and unless sooner terminated by
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written agreement of the parties hereto, this Agreement shall expire upon the
date of Deconsolidation with respect to all Post-Deconsolidation periods;
provided, however, that all rights and obligations arising hereunder with
respect to a Pre-Deconsolidation Tax Period shall survive until they are fully
effectuated or performed and, provided, further, that notwithstanding anything
in this Agreement to the contrary, all rights and obligations arising hereunder
with respect to a Post-Deconsolidation Tax Period shall remain in effect and its
provisions shall survive for the full period of all applicable statutes of
limitation (giving effect to any extension, waiver, or mitigation thereof).
4.7. Resolution of Disputes. Any disputes between the parties concerning
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the calculation of amounts, allocation, or attribution of costs, or any Tax
Asset or Tax Savings, or similar accounting matters shall be resolved in
accordance with ASI's interpretation of this Agreement, unless Logility shall
provide ASI with an opinion of a nationally recognized public accounting firm to
the effect that such interpretation is unreasonable. If such opinion takes the
position that ASI's interpretation of this Agreement is unreasonable, and the
parties, conferring in good faith, cannot thereafter successfully resolve such
dispute in a timely manner, then either party may submit the matter to binding
arbitration in accordance with the Rules of Commercial Arbitration of the
American Arbitration Association. Judgment upon the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction thereof. Such
arbitration shall occur in Atlanta, Georgia, unless the otherwise agreed by the
parties. The arbitrator(s) may, in such proceeding, award attorney's fees and
costs to the prevailing party.
4.8. Interest. Interest required to be paid by ASI to Logility or by
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Logility to ASI, as the case may be, under this Agreement shall unless otherwise
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specified, be computed at the rate and in the manner provided in the Code (or
comparable foreign, state, or local law) for interest on overpayments and
underpayments respectively, of federal, state, local, or foreign tax (as the
case may be) for the relevant period. Any payments required pursuant to this
Agreement which are not made within the time period specified in this Agreement
shall bear interest at the rate specified above for underpayments of federal
income tax plus three percent (3%).
4.9. Effective Date. This Agreement shall be effective as of January 23,
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1997 (the "Effective Date"), shall govern all open taxable periods, and shall
supersede all prior agreements as to the allocation of federal income tax
liability between the parties to this Agreement for all such open taxable years
and for all subsequent taxable years.
4.10. Severability. If any provision of this Agreement or the application
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of any such provision to any party or circumstances shall be determined by any
court of competent jurisdiction to be invalid, illegal, or unenforceable to any
extent, the remainder of this Agreement or such provision or the application of
such provision to such party or circumstances, other than those to which it is
so determined to be invalid, illegal, or unenforceable, shall remain in full
force and effect to the fullest extent permitted by law and shall not be
affected thereby, unless such a construction would be unreasonable.
4.11. Notices. All notices and other communications required or permitted
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hereunder shall be in writing, shall be deemed duly given upon actual receipt,
and shall be delivered (a) in person, (b) by registered or certified mail,
postage prepaid, return receipt requested, or (c) by facsimile or other
generally accepted means of electronic transmission (provided that a copy of any
notice delivered pursuant to this clause (c) shall also be sent pursuant to
clause (a) or (b)), addressed as follows:
(a) If to ASI to:
American Software, Inc.
470 East Paces Ferry Road
Atlanta, Georgia 30305
Attention: Controller
Fax: 404/264-5813
(b) If to Logility, to:
Logility, Inc.
470 East Paces Ferry Road
Atlanta, Georgia 30305
Attention: Chief Financial Officer
Fax: 404/264-5394
or to such other addresses or telecopy numbers as may be specified by like
notice to the other parties.
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4.12. Expenses. Unless otherwise expressly provided in this Agreement,
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each party shall bear any and all expenses that arise from its respective
obligations under this Agreement.
4.13. Further Assurances. ASI and Logility shall execute, acknowledge,
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and deliver, or cause to be executed, acknowledged, and delivered, such
instruments and take such other actions as may be necessary or advisable to
carry out their obligations under this Agreement and under any exhibit,
document, or other instrument delivered pursuant hereto.
4.14. Entire Agreement. This Agreement constitutes the entire
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understanding of the parties hereto with respect to the subject matter hereof.
4.15. Successors. This Agreement shall be binding upon and inure to the
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benefit of any successor, by merger, acquisition of assets, or otherwise, to any
of the parties hereto (including but not limited to any successor of ASI and
Logility succeeding to the tax attributes of such party under Section 381 of the
Code), to the same extent as if such successor had been an original party
hereto.
4.16. Authorization, etc. Each of the parties hereto hereby represents
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and warrants that it has the power and authority to execute, deliver, and
perform this Agreement, that this Agreement has been duly authorized by all
necessary corporate action on the part of such party, that this Agreement
constitutes a legal, valid and binding obligation of each such party, and that
the execution, delivery and performance of this Agreement by such party does not
contravene or conflict with any provision of law or of its charter or bylaws or
any agreement instrument or order binding on such party.
4.17. Section Captions. Section captions used in this Agreement are for
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convenience and reference only and shall not affect the construction of this
Agreement.
4.18. Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of the State of Georgia.
4.19. Counterparts. This Agreement may be executed in any number of
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same Agreement.
IN WITNESS WHEREOF, each of the parties hereto has caused this agreement to
be executed by a duly authorized officer as of the date first above written.
AMERICAN SOFTWARE, INC. LOGILITY, INC.
By: /s/ James C. Edenfield By: /s/ J. Michael Edenfield
----------------------------- --------------------------------
Name: James C. Edenfield Name: J. Michael Edenfield
Title: President Title: President
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