Asset Purchase Agreement - Manugistics Inc. and Manugistics Services Inc., IRI Logistics Inc. and Information Resources Inc.
ASSET PURCHASE AGREEMENT
AGREEMENT made as of this 7th day of March 1997, between Manugistics,
Inc., a Delaware corporation, with its principal offices at 2115 East Jefferson
Street, Rockville, Maryland 20852 ("Manugistics"), Manugistics Services, Inc.,
a Delaware corporation, with its principal offices at 2115 East Jefferson
Street, Rockville, Maryland 20852 ("Purchaser"), IRI Logistics Inc., f/k/a
Logicnet, Inc., a Delaware corporation with its principal offices at 150 North
Clinton Street, Chicago, Illinois 60661 ("Seller") and Information Resources,
Inc., a Delaware corporation with its principal offices at 150 North Clinton
Street, Chicago, Illinois 60661-1416 ("IRI").
BACKGROUND
A. Seller, a wholly-owned subsidiary of IRI, is engaged in the
business of manufacturing and distributing logistics software and providing
data analytic services connected with such logistics software to end users (the
"Business").
B. Purchaser, a wholly-owned subsidiary of Manugistics, wishes to
purchase certain of the assets of the Business from Seller and Seller desires
to sell and assign such assets to Purchaser on the terms and conditions herein
set forth.
C. Certain other assets and liabilities of the Business will remain
with Seller and not be transferred to Purchaser, including the name IRI
Logistics, all as more particularly set forth herein.
NOW THEREFORE, for and in consideration of the mutual promises, terms and
conditions herein set forth, and intending to be legally bound hereby, the
parties hereto agree as follows:
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ARTICLE I
Definitions
Section 1.01. In this Agreement, in addition to the terms elsewhere defined
herein, the following terms shall have the following meanings:
(a) "Assets" shall mean the following tangible and intangible
assets of the Logistics Business (as hereinafter defined), wherever situated,
as the same shall exist on the applicable Closing Date (as hereinafter
defined):
(i) Software Products; Tools. The software products owned,
licensed or under development by Seller or IRI and listed in Schedule
1.01(a)(i), including, without limitation, any and all source and object codes,
and any and all enhancements to such products which Seller and/or IRI develops
prior to the applicable Closing Date, in each case as existing as of the
applicable Closing Date (collectively, the "Software Products"), together with
the software design and development tools and scripts, and modifications and
additions to such tools and scripts, listed in Schedule 1.01(a)(i), which were
or are used in the development, operation or maintenance of the Software
Products, including, without limitation, any and all source and object codes,
in each case as existing as of the applicable Closing Date (collectively, the
"Tools");
(ii) Transferred Agreements.
(A) First Closing Transferred Agreements. All rights of
Seller and IRI from and after the First Closing Date (except as otherwise set
forth in the Seller Disclosure Schedule attached hereto) under the agreements
entered into between Seller or IRI and third parties
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named therein in the operation of the Logistics Business listed in Schedule
1.01(a)(ii)(A) (collectively, the "First Closing Transferred Agreements").
(B) Second Closing Transferred Agreements. All rights of
Seller and IRI from and after the Second Closing Date (except as otherwise set
forth in the Seller Disclosure Schedule attached hereto) under the agreements
entered into between Seller or IRI and third parties named therein in the
operation of the Logistics Business listed in Schedule 1.01(a)(ii)(B) and all
deferred revenue with respect to the Delegated Duties, as such term is defined
in that certain Services Subcontract (the "Services Subcontract") of even date
herewith (collectively, the "Second Closing Transferred Agreements"). The
First Closing Transferred Agreements together with the Second Closing
Transferred Agreement are referred to collectively as the "Transferred
Agreements."
(iii) Tangible Assets. The tangible personal property listed in
Schedule 1.01(a)(iii), including all existing spare and maintenance parts
therefor (collectively, the "Tangible Assets");
(iv) Equipment Leases. The leases in Schedule 1.01(a)(iv) with
respect to certain of the Tangible Assets set forth in Schedule 1.01(a)(iii)
(the "Equipment Leases");
(v) Real Estate Lease. The real property leasehold interests
listed in Schedule 1.01(a)(v) (the "Real Estate Lease");
(vi) Intellectual Property.
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(A) The patent and patent applications, copyright
registrations, trademarks, tradenames, and service marks listed in
Schedule 1.01(a)(vi), and all renewals, modifications and extensions thereof,
together with all associated goodwill; and
(B) Any and all design and code documentation, processes,
trade secrets, copyrights, design information and all related proprietary rights
which are necessary to, used in, or derived from the Assets ((A) and (B)
collectively, the "Intellectual Property");
(vii) Governmental Permits, Licenses and Approvals. All
governmental permits, licenses and approvals which relate to the Assets or the
Assumed Liabilities (as hereinafter defined), to the extent transferable
(collectively, the "Permits");
(viii) Claims. All of Seller's and IRI's rights of action as of
the applicable Closing Date, relating to the Assets and the Assumed Liabilities
other than those arising out of Seller's and IRI's rights under [
*** ], but including all warranty and other claims with
respect to the Assets; and
(ix) Documents. All documents and data relating to the Assets,
including books, records, operating data, credit information, copies of
customer lists, warranty records, export and licensing records, correspondence
relating to customers and to the Assets, copies of sales, marketing and service
records and literature, all user manuals and reference manuals pertaining to
the Software Products and to the extent owned by Seller, the Tools, excluding,
however, Seller's minute books, stock books and accounting records. Pursuant to
Section 4.05 hereof, Seller and IRI, shall also make available to Purchaser
copies of any other information related to the Assets reasonably required by
Purchaser from time to time (both before and after the Closing) including
without limitation,
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miscellaneous correspondence, financial and tax information, all books and
records pertaining to the Assets and all technical information and materials
relating to testing and correcting defects in the Assets;
(b) "Assumed Liabilities" shall mean only the following: (i) those
liabilities arising out of Purchaser's operation and ownership of the Assets
(excluding the Second Closing Assets, as hereinafter defined) from and after
the First Closing Date (as hereinafter defined); (ii) the obligation to perform
those duties defined as "Delegated Duties" under the Services Subcontract but
only upon the terms and conditions described in the Services Subcontract; (iii)
those liabilities arising out of Purchaser's operation and ownership of the
Second Closing Assets from and after the Second Closing Date (as hereinafter
defined); (iv) all of Seller's and IRI's obligations under the First Closing
Transferred Agreements, the Equipment Leases and the Real Estate Lease; and (v)
except as otherwise set forth in the Seller Disclosure Schedule, all of
Seller's and IRI's obligations under the Second Closing Transferred Agreements
from and after the Second Closing Date.
(c) "Closing" shall mean the First Closing and/or the Second Closing,
as applicable.
(d) "Closing Date" shall mean the First Closing Date and/or the Second
Closing Date, as applicable.
(e) "Excluded Assets" shall mean all of Seller's and IRI's rights,
title and interest in and to all of the assets of Seller and IRI other than the
Assets (collectively, the "Excluded Assets"). Excluded Assets shall include,
without limitation, those assets identified in Schedule 1.01(e).
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(f) "Excluded Liabilities" shall mean all of Seller's and IRI's
liabilities and obligations of every nature not expressly assumed by the
Purchaser under this Agreement. Without limitation to the foregoing, the
following shall be considered "Excluded Liabilities" for the purposes hereof
except to the extent that such liabilities (aa) are included within the Assumed
Liabilities, or (bb) result from or arise out of any act or failure to act by
or on behalf of Purchaser and/or Manugistics: (i) any liability or obligation
of Seller and/or IRI existing as a result of any act or failure to act which
constitutes a violation of the representations, warranties and covenants of
Seller and/or IRI, contained in this Agreement or which gives rise to any
claims whenever such may be made, for breach of contract, injury to any person,
damage to any property, including any act, condition or circumstance giving
rise to any violation of any environmental law; (ii) any product liability
claim of any nature in respect of merchandise manufactured, sold, distributed
or shipped by Seller and/or IRI prior to the applicable Closing Date; (iii) all
liabilities for federal, state and local taxes including without limitation
Social Security taxes that may have been incurred as a result of operations or
otherwise by Seller and/or IRI or will be incurred by Seller and/or IRI for the
period ending with the First Closing Date with respect to the First Closing
Assets and the Transferred Employees and the Second Closing Date with respect
to the Second Closing Assets but excluding any sales taxes resulting from the
sale of the Assets pursuant to this Agreement, the payment of which shall be
shared equally by Purchaser and Seller; (iv) any obligation, unfunded or
otherwise, arising under any health, welfare, thrift, pension, life or
disability insurance or worker's compensation policy maintained by Seller or
IRI; (v) any obligation arising under the Equipment Leases, the Real Estate
Lease or the First Closing Transferred Agreements prior to the First Closing
Date, including without limitation, any obligation to Application Consulting
Group arising
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prior to the First Closing Date pursuant to contract or otherwise; (vi) any
obligation under the Second Closing Transferred Agreements prior to the Second
Closing Date other than those obligations related to the performance of the
Delegated Duties (as defined in the Services Subcontract) under the Second
Closing Transferred Agreements upon the terms and conditions set forth in the
Services Subcontract; (vii) from and after the First Closing Date until the
effective date of the third party consents thereto, any obligation or liability
arising under any of the First Closing Transferred Agreements that are not
transferred to Purchaser because of Seller's failure or inability to obtain
such third party consent required for the transfer or assignment of such
contract or agreement to Purchaser; (viii) from and after the Second Closing
Date until the effective date of the third party consents thereto, any
obligation or liability arising under any of the Second Closing Transferred
Agreements that are not transferred to Purchaser because of Seller's failure or
inability to obtain any such third party consent required for the transfer or
assignment of such contract or agreement to Purchaser; (ix) any obligation or
liability that is not transferred because it does not constitute an Assumed
Liability, including without limitation, any and all liability for loss, cost,
damage or expense resulting from or arising out of any of Seller's or IRI's
contracts with any third parties, purchase orders with customers or suppliers
other than such liability arising from Purchaser's or any affiliate's actions
from and after the applicable Closing Date under the Transferred Agreements;
(x) any liability of Seller or IRI to any current and former employees and
consultants (including the Transferred Employees) incurred at any time
whatsoever, including without limitation any contracts or obligations of Seller
for executive compensation, severance benefits, accrued but unused vacation
time or any other fringe benefits and any liability of Seller and/or IRI for
amounts due by Seller to affiliated companies, including without limitation
amounts due to IRI and/or
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Seller; (xi) any and all liability for Seller's and IRI's accounts payable; and
(xii) any and all Damages (as defined in Section 7.01) for which Seller and IRI
are indemnifying Purchaser and affiliates under Article VII.
(g) "Financial Statements" shall mean the following unaudited
financial statements of Seller: Balance Sheet and Statement of Operations as of
December 31, 1995 and the Balance Sheet and Statement of Operations as of
November 30, 1996 (the November 30, 1996 Financial Statements being hereinafter
referred to as the "Recent Financials").
(h) "First Closing" and "First Closing Date" shall have the meanings
given such terms in Section 2.02 hereto.
(i) "First Closing Assets" shall mean all of the Assets except the
Second Closing Assets.
(j) "Logistics Business" shall mean that portion of the Business
conducted with the Assets.
(k) "Person" shall mean any individual, corporation, partnership,
joint venture, association, trust, unincorporated organization or government or
any agency or political subdivision thereof, or other entity.
(l) "Purchase Price" The Purchase Price for the Assets shall mean
the sum of One Million Five Hundred Thousand Dollars ($1,500,000) payable in
cash or by wire transfer at the First Closing.
(m) "Second Closing" and "Second Closing Date" shall have the
meanings given such terms in Section 2.02.
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(n) "Second Closing Assets" shall mean the Software Products and
Tools comprising a part of the Assets as identified in Schedule 1.01(a)(i) as
the "Second Closing Assets" together with the Intellectual Property related to
such Software Products and Tools and the Second Closing Transferred Agreements
identified on Schedule 1.01(a)(ii)(B).
(o) [ *** ]
(p) "Transferred Employees" shall mean those employees of Seller or
IRI hired by Purchaser pursuant to Section 5.11.
ARTICLE II
Sale of Assets
Section 2.01. Acquisition. Subject to the terms and conditions hereof
Seller hereby agrees to sell, transfer, assign and deliver to Purchaser, and
Purchaser hereby agrees to acquire and purchase, the First Closing Assets on
the First Closing Date and the Second Closing Assets on the Second Closing
Date, in all cases free and clear of all claims, encumbrances and third party
interests except the Assumed Liabilities and except as otherwise set forth in
the Seller Disclosure Schedule. In exchange for the transfer of such Assets to
Purchaser on the applicable Closing Date, and the execution by Seller and IRI
as of the First Closing Date of this Agreement and the Services Subcontract,
Purchaser hereby agrees to assume the Assumed Liabilities related to the First
Closing Assets as of the First Closing Date, assume the Assumed Liabilities
related to the Second Closing Assets as of the Second Closing Date, pay the
Purchase Price to the Seller on the First Closing Date and execute this
Agreement as of the First Closing Date as herein provided.
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Section 2.02. Closing. Seller shall transfer title to the First Closing
Assets, and Purchaser shall accept transfer of such title and assume all
Assumed Liabilities related to the First Closing Assets at the first closing of
the transactions herein contemplated (the "First Closing") which shall take
place at the offices of Dilworth, Paxson, Kalish & Kauffman LLP, 3200 Mellon
Bank Center, 1735 Market Street, Philadelphia, PA 19103 on March 7th, 1997 or
such other date which is mutually acceptable to the parties hereto (the "First
Closing Date"). Seller shall transfer title to the Second Closing Assets, and
Purchaser shall accept transfer of such title and assume all Assumed
Liabilities related to the Second Closing Assets at the second closing of the
transactions herein contemplated (the "Second Closing") which shall take place
at the offices of Dilworth, Paxson, Kalish & Kauffman LLP, 3200 Mellon Bank
Center, 1735 Market Street, Philadelphia, PA 19103 on the fifth business day
following the date on which the [ *** ] (the "Second
Closing Date").
Section 2.03. Deliveries at First Closing by Seller and IRI. At the
First Closing, Seller and/or IRI shall deliver the First Closing Assets to
Purchaser, and Seller and/or IRI shall take such actions and execute and
deliver such agreements, bills of sale, assignment and assumption agreements,
and other instruments and documents as necessary or appropriate to effectuate
the transactions contemplated by this Agreement in accordance with its terms,
including without limitation the following:
(a) all bills of sale, leases, subleases, assignments, financing
statement releases from all secured parties and other instruments of transfer
effective to vest in Purchaser good and marketable title (and all of Seller's
and IRI's right, title and interest) in and to the First Closing Assets (free
and clear of all liens, security interests, claims or other encumbrances of
every nature, except as set forth in
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the Seller Disclosure Schedule), in each case in form and substance
satisfactory to Purchaser and counsel for Purchaser;
(b) a certified copy of resolutions of Seller's Board of Directors and
Seller's shareholder authorizing and approving the execution, delivery and
performance through the Second Closing Date, as applicable, of this Agreement,
the Services Subcontract and any other agreements executed between any or all
of the parties as of even date herewith (collectively, excluding this
Agreement, the "Other Agreements"), and the consummation of the transactions
contemplated hereby and thereby on the First Closing Date;
(c) all third party consents required to effectuate the transfer and
assignment to Purchaser of the First Closing Assets;
(d) the various certificates, applications, letters and agreements
referred to in Article V hereof relating to the First Closing Assets, duly
executed by the appropriate Person;
(e) the Other Agreements.
Section 2.04. Deliveries at First Closing by Purchaser and Manugistics.
At the First Closing, Purchaser and/or Manugistics shall deliver to Seller the
following:
(a) a certified copy of resolutions of Purchaser's and Manugistics'
Board of Directors authorizing and approving the execution, delivery and
performance through the Second Closing Date, as applicable, of this Agreement
and the Other Agreements, and the consummation of the transactions contemplated
hereby and thereby to occur on the First Closing Date;
(b) the various certificates and agreements referred to in Article VI
hereof duly executed by the appropriate Person;
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(c) A certified check or wire transfer in the amount of One Million
Five Hundred Thousand Dollars ($1,500,000);
(d) the Other Agreements.
Section 2.05. Deliveries at Second Closing by Seller and IRI. At the
Second Closing, Seller and/or IRI shall deliver the Second Closing Assets to
Purchaser and Seller and/or IRI shall take such actions and execute and deliver
such agreements, bills of sale, assignment and assumption agreements, and other
instruments and documents as necessary or appropriate to effect the
transactions contemplated by this Agreement in accordance with its terms,
including without limitation the following:
(a) all bills of sale, leases, subleases, assignments, financing
statement releases from all secured parties and other instruments of transfer
effective to vest in Purchaser good and marketable title (and all of Seller's
and IRI's right, title and interest) in and to the Second Closing Assets free
and clear of all liens, security interests, claims or other encumbrances of
every nature, except as expressly contemplated hereby, in each case in form and
substance satisfactory to Purchaser and counsel for Purchaser;
(b) all third party consents required to effectuate the transfer and
assignment to Purchaser of the Second Closing Assets; and
(c) the various certificates, applications, letters and agreements
referred to in Article V hereof duly executed by the appropriate Person
relating to the Second Closing Assets.
Section 2.06. Deliveries at Second Closing by Purchaser and Manugistics.
At the Second Closing, Purchaser and Manugistics shall deliver to Seller the
following:
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(a) the various certificates and agreements referred to in Article VI
hereof relating to the Second Closing Assets, duly executed by the appropriate
Person.
ARTICLE III
Representations and Warranties
Section 3.01. Representations and Warranties of Seller and IRI. Except
as otherwise set forth in the Seller Disclosure Schedule, Seller and IRI,
jointly and severally, represent and warrant to Purchaser and Manugistics that:
(a) Organization and Qualification. Seller and IRI are each a
corporation duly organized, validly existing and in good standing under the
laws of Delaware. Seller and IRI respectively have the corporate power and
authority to own and lease their property and to carry on their business as now
being conducted and are each duly qualified as a foreign corporation and are in
good standing in all states where the nature of their business and assets
requires such qualification, except to the extent that a failure to so qualify
would not have a material adverse effect on the Logistics Business or the
Assets.
(b) Financial Statements. The Recent Financials heretofore delivered
by Seller to Purchaser, are true and complete copies thereof. All such Recent
Financials were prepared in accordance with the books of account and records of
Seller in accordance with generally accepted accounting principles consistently
applied in accordance with all preceding accounting periods and were prepared
on the basis of the books and records of Seller and fully and fairly present
the condition of the Seller as of the date thereof and the results of
operations of the Seller as of the dates thereof,
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except that the Recent Financials do not contain footnote disclosure and do not
reflect interest expenses on a promissory note due to IRI in the principal
amount of $1,000,000.
(c) Absence of Undisclosed Liabilities. Seller has no indebtedness,
liabilities or obligations whether accrued, absolute, contingent, liquidated or
unliquidated, and whether due or to become due, which (i) were not reflected in
or reserved against on the Recent Financials, except as set forth in Section
3.01(b) above or (ii) did not arise in the ordinary course. Nothing in this
Section 3.01(c) shall be taken to mean that Purchaser is assuming any
liabilities or obligations other than as provided in Section 1.01(b).
(d) Properties. Schedule 1.01(a)(v) hereto describes the location and
ownership of all real property and interests in real property to be leased by
Purchaser in accordance with Section 1.01(a)(v) hereof. All electrical,
plumbing, heating and air conditioning systems existing at such properties are
and will, on the Closing Date, be in good working order. Schedule 1.01(a)(iii)
and Schedule 1.01(a)(iv) hereto describes the location, type, identification
and character of all machinery, equipment, furniture, fixtures, vehicles and
other personal property and interests in personal property owned, leased or
used by Seller and/or IRI to be purchased by Purchaser. All such property
listed on Schedule 1.01(a)(iii) and Schedule 1.01(a)(iv) will, on the date
hereof, be in satisfactory operating condition. Schedule 1.01(a)(vi) hereto
contains a complete list of all intellectual property rights owned by Seller
and/or IRI which relate exclusively to the Assets being purchased pursuant to
this Agreement, which rights Seller and IRI represent and warrant are all of
the rights owned by Seller and/or IRI which are necessary for the operation of
the Assets and the Logistics Business. Except as indicated in the Seller
Disclosure Schedule, none of the property or interests listed in Schedules
1.01(a)(iv), 1.01(a)(v)
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and 1.01(a)(vi) is subject to any covenant or other restriction preventing
or limiting the right of Seller or IRI to transfer the same to Purchaser or
(ii) infringes on the rights of any Person.
(e) Title Exceptions. Except as specifically described in the Seller
Disclosure Schedule, Seller or IRI, as applicable, has good and marketable
title to, or a valid leasehold interest in, all the Assets free and clear of
all claims of any kind (other than taxes not yet due and payable), or
conditional sale agreements, other title retention agreements or condemnation
proceedings except for such claims, if any, which are not substantial in
character, amount or extent and which do not materially detract from the value
of, or materially interfere with the present use of, or intended use by
Purchaser of the Assets subject thereto or affected thereby.
(f) Contracts, Plans etc. In connection with the Logistics Business,
except as disclosed in the Seller Disclosure Schedule, neither Seller nor IRI
is a party to or bound by any contracts, leases, licenses, agreements, or
commitments, oral or written, express or implied involving any: (i) contract
for the employment of any of the Transferred Employees which is not immediately
terminable without penalty on or at any time on or before the First Closing
Date; (ii) contract with or commitment to any labor union or association
representing any Person; (iii) bonus, pension, profit sharing, deferred
compensation, retirement, incentive, stock purchase, stock option, termination,
severance, hospitalization, insurance, welfare or other plan or arrangement
providing benefits to any of the Transferred Employees or his or her
dependents, beneficiaries or heirs; (iv) contract or agreement with any
affiliate of Seller or IRI, relating to the Assets; (v) continuing contract or
commitment for the purchase or acquisition of materials, supplies, merchandise,
equipment, or services that are at a cost to Seller outside of the ordinary
course of business; (vi) [intentionally omitted]; (vii) continuing contract
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or commitment for the sale or furnishing of materials, supplies, equipment,
merchandise or services involving the payment or receipt of funds or property
that will generate revenue to Seller outside of the ordinary course of
business; (viii) license or royalty agreement; (ix) distributor, dealer,
manufacturer's representative, consignment, advertising or public relations
contract; (x) contract with any government or any agency or instrumentality
thereof; (xi) to the knowledge of Seller and IRI, contract or other arrangement
in or pursuant to which any or all of the Transferred Employees of Seller or
IRI, or any relative or associate of any thereof has a material interest; (xii)
contract continuing for a period of more than one year from its effective date
involving the payment or receipt of funds or property in excess of Ten Thousand
Dollars ($10,000); or (xiii) in connection with or relating to the Logistics
Business, contract for the grant to any person of any preferential rights to
purchase any assets or properties of Seller or IRI or which limits or restricts
the right of Seller and/or any successor to Seller to purchase supplies or
inventory or to sell any products manufactured by Seller.
(g) Enforceability, etc. of Contracts, Leases. Except as set forth
in the Seller Disclosure Schedule, none of the Real Estate Lease, the Equipment
Leases or the Transferred Agreements is terminable or subject to modification
as a result of, or otherwise requires the consent or other approval of any
other Person with respect to, the transactions and assignments contemplated
hereby. Seller and IRI have in all material respects performed all the
obligations required to be performed by them to date under the Real Estate
Lease, the Equipment Leases and the Transferred Agreements and are not in
material default thereunder and no facts exist which are known to Seller or IRI
that indicate that Seller and/or IRI will or may be in material default
hereafter in respect of any thereof, and to the knowledge of Seller and IRI:
(i) each of the other parties thereto or bound thereby
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have in all material respects performed all the obligations required to be
performed by them to date and are not in default in any material respect
thereunder and (ii) no facts exist that indicate that such parties will or may
be in material default hereafter in respect of any thereof. To the knowledge of
Seller and IRI, each of the Real Estate Lease, the Equipment Leases and the
Transferred Agreements is in full force and effect and constitutes a legal,
valid and binding obligation of Seller and/or IRI and any other party or
parties thereto, in accordance with its terms.
(h) Litigation. Schedule 3.01(h) hereto contains a list and brief
description of all pending actions, suits and proceedings against or affecting
Seller and/or IRI which relate to the Logistics Business, the Assets or the
transactions contemplated hereby. Except as expressly set forth in the Seller
Disclosure Schedule, there is no action, suit or proceeding pending or, to the
knowledge of Seller and/or IRI, threatened against, by or affecting Seller or
IRI relating to the Logistics Business, the Assets, or any of the transactions
contemplated hereby in any court or by or before any federal, state or other
governmental department, commission, board, bureau, agency or instrumentality
or before any arbitrator of any kind. Except as set forth in the Seller
Disclosure Schedule, neither Seller nor IRI, has failed to comply with, been
notified of or, to the knowledge of Seller or IRI, been threatened with a
charge or violation of, or to the knowledge of Seller or IRI, is under
investigation with respect to a possible violation of any law, regulation or
order of any government or governmental agency or authority materially
affecting the Logistics Business or any of the Assets or the transactions
contemplated hereby and neither Seller nor IRI has any knowledge of any
violation of any such law, regulation or order which would have such effect.
Neither Seller nor IRI has committed any illegal acts or omissions that would
have a material adverse impact on Seller's ability to transact business with
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any government entity. Except as set forth in the Seller Disclosure Schedule,
neither Seller nor IRI is in default in any respect under any order, writ,
injunction or decree of any court or federal, state, local, municipal or other
governmental department, commission, board, bureau, agency or instrumentality,
materially affecting the Logistics Business, the Assets or any of the
transactions contemplated hereby. None of Seller's customers or suppliers
have given notice or verbally advised that their purchases from the Logistics
Business will be different from past practice, and neither Seller nor IRI has
any reason to believe any such change may occur, as a result of the
transactions contemplated hereby, other than as a result of general economic or
competitive conditions.
(i) Licenses and Permits. Seller and IRI possess all material
governmental or other licenses, franchises, consents, authorizations or permits
necessary for the conduct of the Logistics Business and the consummation of the
transactions contemplated hereby. All such licenses, permits, franchises,
consents, authorizations are in full force and effect and neither Seller nor
IRI has received any notice that any revocation or limitation thereof is
threatened or pending.
(j) Absence of Certain Changes or Events.
(i) In connection with the Logistics Business, the Assets and the
transactions contemplated hereby, since the date of the Recent Financials,
neither Seller nor IRI has, except as disclosed in the Seller Disclosure
Schedule, (1) discharged or satisfied any lien, security interest or
encumbrance other than in the ordinary course of business as conducted on such
date or paid, other than in the ordinary course of business as conducted on
such date, any liability or obligation other than current liabilities reflected
on its Recent Financials and current liabilities since incurred in the ordinary
course of business, or sold, assigned, voluntarily encumbered, granted a
license or sublicense with
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respect to, subcontracted or disposed of any material assets, properties or
goodwill of Seller, other than pursuant to that certain Services Subcontract or
in the ordinary course of its business as conducted on the dates of the Recent
Financials; (2) whether or not in the ordinary course of business, incurred any
liability for borrowed money that will not be satisfied prior to Closing; (3)
incurred any other obligation or liability other than those incurred in the
ordinary course of business as conducted on the dates of its Recent Financials;
(4) suffered any extraordinary losses or waived any rights of substantial
value; (5) increased, directly or indirectly, the salary or other compensation
of any of the Transferred Employees or paid or entered into any agreement for
any bonus or other extraordinary compensation to any of such Transferred
Employees; (6) entered into any contract or commitment except in the ordinary
course of business as conducted on the dates of the Recent Financials; (7) made
any capital expenditures or commitments therefor for an amount exceeding Ten
Thousand Dollars ($10,000) in the case of any single contract or commitment,
except expenditures for commitments listed in the Seller Disclosure Schedule;
(8) changed in any material respect its business policies or practices; (9)
altered or revised in any way its accounting principles, procedures, methods or
practices; (10) removed, or caused or permitted to be removed, from any of its
properties, any of its material assets except in the ordinary course of
business as conducted on the dates of the Recent Financials; (11) with respect
to the Transferred Agreements, changed its credit policies as to the creation
or collection of accounts receivable; or (12) entered into any other
transaction or taken any other action except in the ordinary course of business
as conducted on the dates of its Recent Financials. In connection with the
Logistics Business, the Assets, or the transactions contemplated hereby, to the
knowledge of Seller and IRI, no director, officer or employee of Seller, or any
agent of Seller, has, since the date of the Recent
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Financials, removed or purchased anything of material value located at the
premises of any office or other facility of, or under the control of, Seller.
(ii) Since the date of the Recent Financials, there has been no
material adverse change in the financial condition, business properties or
assets of Seller or IRI forming part of the Logistics Business, the Assets or
the transactions contemplated hereby and to the knowledge of Seller and IRI, no
adverse change (material or otherwise) and no event, condition or circumstance
exists or has occurred which might give rise to any adverse change (material or
otherwise) to the financial condition, business, properties or assets of Seller
or IRI forming part of the Logistics Business, the Assets or the transactions
contemplated hereby. The financial condition of the Business, the Logistics
Business and the Assets considered as a whole, is and will be through the First
Closing Date, similar to or better in all material respects to such condition
reflected on the Recent Financials.
(k) Authority. etc. Seller and IRI each have the full right, power,
capacity and authority to execute and deliver this Agreement and to the extent
each is a party, the Other Agreements, and to consummate the transactions
contemplated hereby and thereby. All acts and other proceedings required to be
taken by or on the part of Seller and/or IRI, as the case may be, to authorize
the Seller and/or IRI to carry out this Agreement, the Other Agreements and the
transactions contemplated hereby and thereby have been duly and properly taken.
This Agreement and the Other Agreements have been duly executed and delivered
by Seller and IRI, as the case may be, and constitute the legal, valid and
binding obligation of Seller and IRI, as the case may be, enforceable against
Seller and IRI, as the case may be, in accordance with its or their terms,
subject to the effect of bankruptcy and insolvency, creditors rights and
equitable remedies, generally. Except as indicated in the Seller Disclosure
Schedule, the execution
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and delivery of this Agreement and the Other Agreements by Seller and IRI, as
the case may be, and the consummation of the transactions contemplated hereby
and thereby do not violate any law or regulation applicable to Seller or IRI,
as the case may be, or conflict with or result in any breach of or constitute a
default (or an event which with notice or lapse of time or both would become a
default) under, or result in the creation of any lien or encumbrance on any of
the properties or assets of Seller and/or IRI pursuant to the charter or
by-laws of Seller and/or IRI, or any indenture, mortgage, lease or agreement or
other instrument to which either Seller and/or IRI is a party or by which
Seller's and/or IRI's assets, may be bound. No approval, authorization,
consent, permit or other order or action of or filing with any court,
administrative agency or other governmental authority or any other person is
required for the execution and delivery by Seller and/or IRI of this Agreement
and the Other Agreements or the consummation by Seller and/or IRI of the
transactions contemplated hereby and thereby that has not already been
obtained.
(l) Taxes. Seller has filed all federal, state, and local tax returns,
reports and forms required to be filed, and the amount of tax liability shown
on each of such returns, reports and forms has been paid in full, except for
the portions thereof not yet due and payable. Except as set forth in the Seller
Disclosure Schedule, Seller has not received notice and to the knowledge of
Seller, there are no pending examinations by any taxing authority of the tax
returns of Seller. Seller has not executed or filed with any taxing authority
any agreement extending the period for assessment or collection of any taxes
for which Seller may be liable and Seller is not a party to any pending action
or proceeding by any governmental authority for assessment or collection of
taxes for which Seller may be liable, nor has any
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such claim been asserted against Seller. Except as set forth in the Seller
Disclosure Schedule, no taxing authority has conducted an audit of any tax
returns filed by Seller within the last five (5) years.
(m) Significant Customers. All of the Seller's customers are set
forth in Schedule 3.01(m) hereto. Seller does not have any open orders. With
respect to the Transferred Agreements, deferred revenue under the Transferred
Agreements represents the amounts received or to be received for services to be
performed by Seller from the date hereof under such agreements which arose in
the ordinary course of Seller's and/or IRI's business, in accordance with
generally accepted accounting principles.
(n) Insurance. Attached hereto as Schedule 3.01(n) is a list of all
insurance policies and other forms of insurance in force with respect to the
Logistics Business or the Assets, or maintained with respect to the Transferred
Employees indicating the nature and amount of coverage in each case and the
name of the insurer. All premiums under any of such policies have been paid or
adequate reserves have been established therefor and, to the knowledge of
Seller and IRI, no act or failure to act has occurred which has caused or might
cause any premium to be cancelled or terminated, and all material notices and
acts by Seller and/or IRI required to be given or done thereunder have been
properly given or done. Such policies will remain outstanding and in full force
and effect up to and including the Second Closing Date.
(o) Investments in and Payments to Certain Persons. Except as
reflected in the Seller Disclosure Schedule, neither Seller nor IRI has any
loan to or investment in any of the Transferred Employees. In connection with
the Logistics Business, neither Seller nor IRI has any loan to or investment in
any affiliated person or entity, customer, sales representative or distributor
of Seller
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and/or IRI and neither Seller nor IRI has, directly or indirectly, made any
loans or advances or otherwise, in connection with the Logistics Business,
extended credit to any affiliated person, entity, customer, sales
representative or distributor.
(p) Copies. True and complete copies of the Real Estate Lease, the
Transferred Agreements (except for the licenses to third party software
contained in Attachment 1 to Schedule 1.01(a)(ii) (A)) and each of the
Equipment Leases have been delivered to Purchaser.
(q) Quality. Except as set forth in the Seller Disclosure Schedule,
neither Seller nor IRI has knowledge of any quality problems or defects in any
of the Assets. Notwithstanding the foregoing, Seller and IRI hereby represent,
warrant and covenant that the Software Products and the Tools owned by Seller
and/or IRI shall operate and substantially conform to the prevailing
specifications, as defined by Seller's or IRI's user manuals and reference
manuals. Except as reflected in the Seller Disclosure Schedule, there are no
pending, or, to the knowledge of Seller or IRI, threatened product liability
suits or claims against Seller and/or IRI, and neither Seller nor IRI has
knowledge of any incident that could give rise to any such suit or claim.
Notwithstanding anything contained in this Section 3.01(q) to the contrary, no
representation is made hereby with respect to any products or equipment which
do not form part of the Logistics Business, the Assets or pertain to any of the
transactions contemplated hereby.
(r) Disclosure. No representation or warranty of Seller and/or IRI
contained in this Agreement, the Other Agreements or any Schedule or Exhibit
attached hereto or thereto, contains any untrue statement of a material fact or
omits to state a material fact necessary in order to make the statements
contained herein or therein not misleading in light of the circumstances in
which made.
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(s) Pensions. etc. All Pension, Profit Sharing, Health, Life and
Disability Insurance, Welfare, Thrift and other employee benefit plans
pertaining to the Transferred Employees are fully set forth in Schedule 3.01(s)
hereto.
(t) Accelerations of Sale. Since the dates of the Recent Financials,
Seller has not accelerated or effected any sale of goods or merchandise prior
to the date such sale normally would have been effected consistent with the
past practice of Seller in its ordinary course of business.
(u) Environmental and Other Claims. Except as set forth in the Seller
Disclosure Schedule, neither IRI nor Seller has any knowledge of any unasserted
but potential claims that may exist against Seller or IRI as a result of the
operation of the Logistics Business, including, without limitation, any
unasserted claim resulting from any product warranty made by Seller, any claim
resulting from Seller's or IRI's use or manufacture of hazardous waste or
materials, or any environmental claim.
(v) Prospects. Neither Seller nor IRI has knowledge of any pending
loss of business or any other conditions, including any problem with respect to
the collectibility of any amounts due under the Transferred Agreements, other
than as a result of general economic or competitive conditions, the incurrence
of which might have a material adverse effect upon the Logistics Business, the
Assets or the transactions contemplated hereby or prospects of Seller or which
would prevent the continued conduct of the Logistics Business, or the
transactions contemplated hereby in substantially the same manner as conducted
on the date hereof.
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(w) Preservation of Assets. Since the date of the Recent Financials
to the First Closing Date, each of Seller and IRI represents and warrants that
it has used commercially reasonable efforts to preserve the goodwill of all of
its customers and suppliers. Prior to the Second Closing Date, Seller and IRI
shall have used commercially reasonable efforts to preserve the Second Closing
Assets and shall not have taken any unreasonable actions detrimental to the
goodwill of any of its customers and suppliers with respect to the Logistics
Business and/or Purchaser's relationships with such customers and suppliers and
shall provide prompt written notice to Purchaser of any detrimental actions
taken. Further, prior to the Second Closing, to the extent that Seller or IRI
shall have continued a relationship with any customer or supplier, Seller and
IRI shall have taken no unreasonable actions detrimental to the goodwill of
such customer or supplier with respect to the Logistics Business and shall have
conducted its business with respect to any such customer and supplier in the
same manner and with the same effect as conducted prior to such date and shall
provide prompt written notice of any detrimental actions taken. In addition,
prior to the Second Closing, Seller and IRI, jointly and severally, represent
and warrant that each shall not have engaged in any transactions with such
customers and suppliers with respect to the Logistics Business, other than
those in the usual and ordinary course of Seller's and IRI's business
consistent with past practice.
(x) Overtime, Back Wages, Etc. There are no outstanding claims
against Seller or IRI (whether under federal, state or local law, employment
agreements or otherwise) to the knowledge of Seller or IRI, asserted by any of
the Transferred Employees on account of or for:
(i) overtime pay, other than overtime pay for work done
during the current payroll period;
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(ii) wages or salary for any period other than the current
payroll period;
(iii) any amount of vacation pay or pay in lieu of vacation
or time off; or
(iv) any violation of any statute, ordinance or regulation
relating to minimum wages or maximum hours at work or any other work related
claim whatsoever; and neither Seller nor IRI has knowledge of any such claims
which have not been so asserted.
Section 3.02. Representations and Warranties of Purchaser and
Manugistics. Purchaser and Manugistics, jointly and severally, represent and
warrant to Seller and IRI that:
(a) Authority. etc. Manugistics and Purchaser each have the full
right, power, capacity and authority to execute and deliver this Agreement and
to the extent each is a party, the Other Agreements, and to consummate the
transactions contemplated hereby and thereby. All acts and other proceedings
required to be taken by or on the part of Manugistics and/or Purchaser, as the
case may be, to authorize Manugistics and/or Purchaser to carry out this
Agreement, the Other Agreements and the transactions contemplated hereby and
thereby have been duly and properly taken. This Agreement and the Other
Agreements have been duly executed and delivered by Purchaser and Manugistics,
as the case may be, and constitute the legal, valid and binding obligation of
Purchaser and Manugistics, as the case may be, enforceable against Purchaser
and Manugistics, as the case may be, in accordance with its or their terms,
subject to the effect of bankruptcy and insolvency, creditors rights and
equitable remedies, generally. The execution and delivery of this Agreement
and the Other Agreements by Purchaser and Manugistics, as the case may be, and
the consummation of the transactions contemplated hereby and thereby do not
violate any law or regulation applicable to Purchaser or Manugistics, as the
case may be, or conflict with or result in any breach of or constitute a
default (or an
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event which with notice or lapse of time or both would become a default) under,
or result in the creation of any lien or encumbrance on any of the properties
or assets of Purchaser and/or Manugistics pursuant to the charter or by-laws of
Purchaser and/or Manugistics or any indenture, mortgage, lease or agreement or
other instrument to which either Purchaser and/or Manugistics is a party or by
which Purchaser and/or Manugistics may be bound. No approval, authorization,
consent, permit or other order or action of or filing with any court,
administrative agency or other governmental authority or any other person is
required for the execution and delivery by Purchaser and/or Manugistics of this
Agreement and the Other Agreements or the consummation by Purchaser and/or
Manugistics of the transactions contemplated hereby and thereby that has not
already been obtained.
(b) Organization and Qualification. Purchaser and Manugistics are
each a corporation duly organized, validly existing and in good standing under
the laws of Delaware. Purchaser and Manugistics respectively have the
corporate power and authority to own and lease their property and to carry on
their business as now being conducted and are each duly qualified as a foreign
corporation and are in good standing in all states where the nature of their
business and assets requires such qualification, except to the extent that a
failure to so qualify would not have a material adverse effect on Purchaser's
or Manugistics' business.
ARTICLE IV
Conduct of Seller's Business, and Seller's
Obligations Prior to the First Closing Date and
the Second Closing Date
Prior to the First Closing Date, with respect to the First Closing Assets
and prior to the Second Closing Date, with respect to the Second Closing
Assets, except as otherwise consented to or
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approved by Purchaser in writing, Seller and IRI (individually and to the
extent required to cause Seller to act) jointly and severally covenant and
agree with Purchaser and Manugistics as follows:
Section 4.01. Regular Course of Business. Seller and IRI shall not have
taken any unreasonable action detrimental to the goodwill or relationships of
Purchaser with Seller's customers and suppliers with respect to the Logistics
Business, and to the extent that Seller or IRI continues a relationship with
such customers or suppliers from and after the First Closing Date, Seller or
IRI, as applicable, shall in good faith and in the usual, regular and ordinary
manner, consistent with past practice, use commercially reasonable efforts to
maintain its present relationships with customers having business dealings with
Seller, and shall not have taken any unreasonable action detrimental to the
goodwill of such customers with respect to the Logistics Business. Prior to
the First Closing Date, Seller and IRI shall use its best efforts to maintain
the continued services of the Transferred Employees whose names are set forth
in Schedule 4.01 hereto, provided that Seller shall not be obligated to incur
any financial obligation beyond continued payment of current salary and
benefits nor shall Seller be restricted from terminating any such employees for
cause, so long as Seller shall first advise Purchaser a reasonable time in
advance of such action. Prior to the date of the applicable Closing, Seller
and IRI will maintain all of the Assets in customary repair, order and
condition except for reasonable wear and use. Prior to the date of the
applicable Closing, Seller and IRI shall not, nor shall either enter into any
agreement to dispose of or encumber, hypothecate, or lease any of the Assets,
except as permitted by this Article IV. Neither Seller nor IRI shall take any
action that would cause a violation of the representations set forth in Section
3.01 hereof at any time up to and through the Second Closing Date.
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Section 4.02. Insurance. Seller will maintain in full force and effect
all policies of insurance it currently has in effect. If any of the Assets or
the premises subject to the Real Estate Lease are damaged or destroyed by fire
or other casualty, whether insured or uninsured, Seller or IRI, as appropriate,
will promptly proceed with the complete repair, restoration or replacement
thereof.
Section 4.03. Amendment and Waiver. Neither Seller nor IRI shall amend,
modify, or waive any of its rights under any of the Transferred Agreements, the
Equipment Leases and the Real Estate Lease.
Section 4.04. Notice to Purchaser. Seller and/or IRI shall give prompt
notice to Purchaser of: (i) any notice of, or order or communication relating
to, any default or event which could reasonably be considered to be material to
Seller, with respect to the Logistics Business, which with notice or lapse of
time or both would become a material default, received by Seller or IRI
subsequent to the date of this Agreement under any material indenture,
instrument, lease or agreement to which any of the Assets is bound or subject
or (ii) any notice or other communication received by Seller or IRI from any
third party alleging that the consent of such third party may be required in
connection with the transactions contemplated by this Agreement. Upon request,
from time to time prior to the Second Closing Date, Seller and IRI will use all
commercially reasonable efforts to promptly supplement or amend the Schedules
hereto with respect to any matter hereafter arising which, if existing or
occurring at the date of this Agreement, would have been required to be set
forth or described in such Schedules. No supplement or amendment to such
Schedules shall have any effect for the purpose of determining satisfaction of
the condition set forth in Section 5.01 hereof.
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Section 4.05. Full Access. From and after the date hereof up to and
including the Second Closing Date, Seller and IRI will maintain their
respective books and records in the ordinary manner and in accordance with
generally accepted accounting principles consistently applied. Seller and IRI
shall afford to Purchaser and its authorized representatives free and unlimited
access during normal business hours to the properties, books and records of
Seller and IRI relating to the Assets in order that Purchaser may have a full
opportunity to make such investigation as it shall desire of the affairs of
Seller and IRI with respect to the Assets, and both Seller and IRI will cause
to be furnished such financial and operating data and other information with
respect to Seller and IRI as Purchaser shall from time to time reasonably
request. Except and as to the extent required by law, Purchaser for a period
of five (5) years commencing with the date hereof, shall hold all of the
foregoing to the extent that same is non-public, in confidence and shall not
disclose same to third parties without the prior consent of Seller and IRI.
Likewise, Seller and IRI shall maintain all nonpublic information received from
Purchaser in strict confidence for a period of five (5) years commencing with
the date hereof and shall not disclose same to third parties without the
consent of Purchaser. The confidentiality obligations set forth in this
Section 4.05 shall apply to any information received by any party hereto from a
third party in breach of its own confidentiality obligations.
Section 4.06. Consents. Seller and IRI shall use commercially reasonable
efforts to obtain, at the earliest practicable date and prior to the First
Closing Date and (with respect to the Second Closing Assets) the Second Closing
Date, all consents necessary to the consummation of the transactions
contemplated hereby including, without limitation, any consents described in
Schedule 4.06 hereof.
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ARTICLE V
Conditions Precedent to the Obligations of Purchaser
and Manugistics
Each and every obligation of Purchaser and Manugistics under this
Agreement to be performed on or before the First Closing Date or the Second
Closing Date, as the case may be, shall be subject to the satisfaction, on or
before the First Closing Date, or the Second Closing Date, as the case may be,
of each of the following conditions, except to the extent that Purchaser and
Manugistics shall have waived such satisfaction:
Section 5.01. Representations, Warranties and Covenants; Performance,
Certificate. Each of the representations and warranties made by Seller and IRI
herein shall be true and correct in all material respects on the date made, on
the First Closing Date and on the Second Closing Date, with respect to the
Second Closing Assets only, with the same effect as though made on such dates,
except for changes contemplated, permitted or required by this Agreement, it
being acknowledged and understood that with respect to the Second Closing
Assets, no representation or warranty is required to be made with respect to
conduct by Purchaser of the Delegated Duties under the Services Subcontract.
Seller and IRI shall have performed and complied in all material respects with
all agreements, covenants and conditions required by this Agreement to be
performed and complied with by them at or prior to the First Closing Date or
the Second Closing Date, as the case may be.
Section 5.02 Certificates and Other Documents. Purchaser and Manugistics
shall have received a certificate of the President and the Secretary of Seller
and IRI on the date of First Closing and Second Closing certifying to the
fulfillment of the foregoing conditions substantially in the form of Exhibits A
and B attached hereto.
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Section 5.03. Consents. All approvals and consents from third parties,
including without limitation, all federal, state and local governmental
agencies and boards, all directors, shareholders, creditors and suppliers
required to consummate the transactions contemplated hereby and to assign the
Real Estate Lease, the Equipment Leases and the Transferred Agreements shall
have been obtained.
Section 5.04. INTENTIONALLY OMITTED.
Section 5.05. No Proceeding or Litigation. Except in connection with the
[ *** ], no action, suit or proceeding before any court or
any governmental or regulatory authority shall have been commenced, and no
action, suit or proceeding shall have been, to Seller's knowledge, threatened
against Seller, IRI or any of its affiliates, associates, officers or
directors, seeking to restrain, prevent or change the transactions contemplated
hereby or questioning the validity or legality of any of such transactions or
seeking damages in connection with any of such transactions or which might have
a material adverse effect on the transactions contemplated hereby.
Section 5.06. Certificates and Other Documents. Purchaser shall have
received such certificates of Seller's officers as may be reasonably requested
by it to evidence compliance with the conditions set forth in this Article V.
Section 5.07. Legal Opinions. Purchaser shall have received the legal
opinion of Freeborn & Peters in the form annexed hereto as Exhibit C.
Section 5.08. Transfer of Good Title. Seller and IRI shall have
transferred to Purchaser good and marketable title to all of the Assets free
and clear of all liens, security interests, claims or other encumbrances of
every nature, except as set forth in the Seller Disclosure Schedule.
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Section 5.09. Compliance with the Laws and Regulations. Seller and IRI
shall be in substantial compliance of all laws and regulations pertaining to
the Assets, the Logistics Business and the transactions contemplated hereby.
Section 5.10. Other Agreements. Seller and IRI, as the case may be,
shall have executed and delivered the Other Agreements.
Section 5.11. Employment. Purchaser shall have agreed to employment
terms with at least six (6) of those employees listed in Schedule 4.01, three
(3) of whom shall be key employees as designated thereon, one from each
employment category in Schedule 4.01.
Section 5.12. Allocation of Purchase Price. Seller and IRI shall have
agreed to the allocation of the Purchase Price set forth in Schedule 5.12
hereto.
ARTICLE VI
Conditions Precedent to the
Obligations of Seller and IRI
Each and every obligation of Seller and/or IRI under this Agreement to be
performed on or before the First Closing Date or the Second Closing Date, as
the case may be, shall be subject to the satisfaction, on or before the First
Closing Date or the Second Closing Date, as the case may be, of each of the
following conditions, except to the extent that Seller and IRI shall have
waived such satisfaction:
Section 6.01. Representations, Warranties and Covenants; Performance,
Certificate. Each of the representations and warranties made by Purchaser and
Manugistics herein shall be true and correct in all material respects on the
date hereof, on the First Closing Date and on the Second Closing Date, with
respect to the Second Closing Assets, with the same effect as though made on
such dates, except
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for changes contemplated, permitted or required by this Agreement. Purchaser
and Manugistics shall have performed and complied in all material respects with
all agreements, covenants and conditions required by this Agreement to be
performed and complied with by them at or prior to the First Closing Date or
the Second Closing Date, as the case may be.
Section 6.02. Certificates and Other Documents. Seller and IRI shall
have received a certificate of the President and the Secretary of Manugistics
and Purchaser on the date of First Closing and Second Closing certifying as to
the fulfillment of the foregoing conditions substantially in the form of
Exhibits D and E attached hereto.
Section 6.03. Legal Opinion. Seller shall have received the legal
opinion of Dilworth, Paxson, Kalish & Kauffman in the form attached hereto as
Exhibit F.
Section 6.04. Other Agreements. Purchaser and Manugistics, as the case
may be, shall have executed and delivered the Other Agreements.
Section 6.05. Allocation of Purchase Price. Purchaser shall have agreed
to the allocation of the Purchase Price set forth in Schedule 5.12 annexed
hereto.
Section 6.06 Consents. All approvals and consents from third parties,
including without limitation, all federal, state and local governmental
agencies and boards, all directors, creditors and suppliers required to
consummate the transactions contemplated hereby shall have been obtained.
Section 6.07 No Proceeding or Litigation. Except as contained in
Schedule 6.07 hereto, no action, suit or proceeding before any court or any
governmental or regulatory authority shall have been commenced, and no action,
suit or proceeding shall have been, to Purchaser's knowledge, threatened
against Purchaser, Manugistics, or any of its affiliates, associates, officers
or directors, seeking to
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restrain, prevent or change the transactions contemplated hereby or
questioning the validity or legality of any of such transactions or seeking
damages in connection with any of such transactions or which might have a
material adverse effect on the transactions contemplated hereby.
Section 6.08 Employment. Purchaser shall have offered employment, to
commence as of the First Closing Date, to the Transferred Employees, at similar
or better overall compensation as was in effect prior to the First Closing
Date. Purchaser and/or Manugistics hereby covenants that for the first six
months after the First Closing Date, Purchaser shall provide those of the
Transferred Employees who accept Purchaser's offer of employment, with
severance benefits arrangements, in the event of termination by Purchaser, no
less favorable than those formerly provided by Seller.
ARTICLE VII
Indemnification
Section 7.01. Grant of Indemnity.
(a) Indemnification by Seller and IRI. Seller and IRI shall jointly
and severally indemnify, defend and hold harmless Purchaser, Manugistics and
all affiliates and the officers, directors and agents of all of them from and
against any loss, cost, expense or other damage, including attorneys' fees and
all other litigation expenses (all of the foregoing items being hereinafter
referred to in this Article VII as "Damages") incurred by Manugistics,
Purchaser and/or any affiliate thereof, resulting from, arising out of, or
incurred with respect to, or alleged to result from, arise out of or have been
incurred with respect to:
(i) the breach of any representation or warranty made by, or the
breach of any covenant to be performed or complied with by, Seller and/or IRI,
herein or in any Schedule hereto;
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(ii) the breach of any representation or warranty made by, or the
breach of any covenant to be performed or complied with by, Seller and/or IRI
under the Services Subcontract;
(iii) the failure by Seller and/or IRI to comply with any
applicable laws in connection with their operation of the Logistics Business
and the Assets, or the consummation of the transactions required to be
consummated by them under this Agreement and the Services Subcontract;
(iv) the failure by Seller and/or IRI to transfer the Assets on
the First Closing Date or the Second Closing Date, as applicable;
(v) any third party claims (including but not limited to claims
relating to the [ *** ]) asserted prior to the date hereof, or
which may hereinafter be asserted, arising out of the conduct of Seller and/or
IRI involving the Assets, the Logistics Business or any of the transactions
contemplated by this Agreement or the Services Subcontract, either before or
after the date hereof;
(vi) [ *** ]
(vii) any liability to third parties arising from a violation of
any third party's trademark rights, trade secrets, proprietary rights,
copyrights, patent rights or other intellectual property rights, in connection
with the use of the Software Products and/or Tools by any party hereto or any
third party at any time, except to the extent that such violation arises from
the use or combination by or on behalf of Purchaser and/or Manugistics of the
Software Products and/or Tools with software, hardware, or other materials or
the modification of the Software Products and/or Tools by or on behalf of
Purchaser and/or Manugistics if such violation (1) could have been avoided by
not so using, combining, or modifying the Software Products and/or Tools; and
(2) does not arise out of the [ *** ];
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<PAGE> 38
(viii) the Excluded Liabilities or any of them;
(ix) any liability in excess of $1000.00 in connection with time
lost and/or expenses incurred as a result of time spent by the Transferred
Employees at Seller's request in assisting Seller and/or IRI pursuant to
Section 7.02 or Section 9.11 in connection with the [ *** ];
(x) liability to any of the Transferred Employees arising in
connection with the termination of any or all of them, to the extent that such
termination is mandated by any court order in connection with the [ ***
].
(b) Manugistics and Purchaser acknowledge that their sole remedy
against Seller and/or IRI for any matter arising out of this Agreement and the
Services Subcontract is as set forth in this Article VII and further that with
respect to any of the Other Agreements (other than the Services Subcontract),
the rights and remedies of the parties thereto shall be governed by the
provisions thereof which shall be deemed to include a right of setoff in
accordance with the provisions set forth in Section 7.04 hereof.
Notwithstanding anything contained in the previous sentence to the contrary,
the parties shall be entitled to pursue any other rights and remedies which
they may have (i) in law, equity or otherwise with respect to any fraud or
willful breach or willful misrepresentation hereunder, and (ii) in equity with
respect to the breach of any covenant herein or in the Services Subcontract.
Further, the foregoing indemnities shall not be affected by the First Closing
or the Second Closing and shall survive the First Closing and the Second
Closing.
(c) Indemnification by Purchaser and Manugistics. Purchaser and
Manugistics shall jointly and severally indemnify, defend and hold harmless
IRI, Seller, and all affiliates, and the officers, directors and agents of all
of them from and against any Damages incurred by Seller, IRI
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<PAGE> 39
and/or any affiliate thereof, resulting from, arising out of, incurred with
respect to, or alleged to result from, arise out of or have been incurred with
respect to:
(i) the breach of any representation or warranty made by, or the
breach of any covenant to be performed or complied with by, Purchaser and/or
Manugistics herein or in any Schedule hereto;
(ii) the Assumed Liabilities or any of them;
(iii) the failure by Purchaser and/or Manugistics to comply with
any applicable laws in connection with their operation of the Logistics
Business and the Assets or the consummation of the transactions required to be
consummated by them under this Agreement and the Services Subcontract;
(iv) the breach of any representation or warranty made by, or the
breach of any covenant to be performed or complied with by, Purchaser and/or
Manugistics under the Services Subcontract;
(v) any third party claims (other than with respect to the [ ***
]) asserted prior to the date hereof or which may hereinafter be asserted,
arising out of the conduct of Manugistics and/or Purchaser involving the Assets
or the Logistics Business after the First Closing Date, or any of the
transactions contemplated by this Agreement or the Services Subcontract, either
before or after the First Closing Date;
(vi) any liability to third parties (other than with respect to the
[ *** ]) arising from a violation of any third party trademark
rights, trade secrets, proprietary rights, copyrights, patent rights or other
intellectual property rights in connection with the use of the Add-On Products
(as
38
<PAGE> 40
such term is defined in the Services Subcontract) by any party hereto or any
third party at any time, except to the extent that such violation arises from
the use or combination by or on behalf of Seller and/or IRI of the Add-On
Products with software, hardware or other materials or the modification of the
Add-On Products by or on behalf of Seller and/or IRI if such violation could
have been avoided by not so using, combining, or modifying the Add-On Products.
(d) Seller and IRI acknowledge that their sole remedy against
Purchaser and/or Manugistics for any matters arising out of this Agreement and
the Services Subcontract is as set forth in this Article VII and further that
with respect to any of the Other Agreements (other than the Services
Subcontract) the rights and remedies of the parties thereto shall be governed
by the provisions thereof which shall be deemed to include a right of setoff in
accordance with provisions set forth in Section 7.04 hereof. Notwithstanding
anything contained in the previous sentence to the contrary, the parties shall
be entitled to pursue any other rights and remedies which they may have in (i)
law, equity or otherwise with respect to any fraud or willful breach or willful
misrepresentation hereunder, and (ii) in equity with respect to the breach of
any covenant herein or in the Services Subcontract.
Further, the foregoing indemnities shall not be affected by the First
Closing or the Second Closing and shall survive the First Closing and the
Second Closing.
(e) Limitations on Amount under this Agreement and the Services
Subcontract. No party shall have any liability (for indemnification or
otherwise) to the other parties hereto under this Agreement and the Services
Subcontract until the total of all Damages exceeds $10,000, and then only for
the amount by which such Damages exceeds $10,000. The aggregate amount payable
under this Article VII by the Seller and IRI to Purchaser and Manugistics on
the one hand, and by Purchaser and
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<PAGE> 41
Manugistics to Seller and IRI on the other, shall not exceed $1,500,000, except
(i) in the event and to the extent of fraud or any willful misrepresentation by
a party with respect to any statement made by such party in this Agreement or
in the certificates delivered by a party pursuant to Section 5.02 and 6.02 of
this Agreement; (ii) in the event and to the extent of any willful breach by
any party of any covenant or obligation in this Agreement; (iii) in the event
and to the extent that Seller and/or IRI breaches (whether by fraud, willful
misrepresentation, or otherwise) the representations and warranties contained
in Section 3.01(e); and (iv) with respect to Damages arising from any claims
asserted by third parties relating to the matters governed by Section 7.01(a)
and 7.01(c) hereof.
(f) Waiver of Certain Damages. Each of Seller, IRI, Purchaser and
Manugistics, to the fullest extent permitted by law, irrevocably waives any
rights that it may have to punitive, multiple or consequential damages based on
or arising out of this Agreement, the Services Subcontract, or any course of
conduct, course of dealing, statements or actions of any of them related
thereto, provided, however, that nothing in this Section 7.01(f) shall operate
to prevent an Indemnified Party (as hereinafter defined) from seeking
indemnification from the Indemnifying Party (as hereinafter defined) under this
Article VII for punitive, multiple or consequential damages claimed by a third
party.
Section 7.02. Procedure for Indemnification.
(a) The party or parties claiming indemnification (individually or
collectively, the "Indemnified Party") shall promptly give notice hereunder to
the indemnifying party or parties (individually or collectively, the
"Indemnifying Party") as the case may be, after obtaining knowledge of any
claim as to which recovery may be sought against the Indemnifying Party because
of the indemnity in Section 7.01, and, if such indemnity shall arise from the
claim of a third party, shall permit the
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<PAGE> 42
Indemnifying Party to assume the defense of any such claim, provided that the
Indemnified Party shall not be required to permit the Indemnifying Party to
assume the defense of any third party claim which if not first paid, discharged
or otherwise complied with would result in an interruption or cessation of the
conduct of the business by the Indemnified Party. Notwithstanding the
foregoing notice requirement, the right to indemnification hereunder shall not
be affected by a failure of the Indemnified Party to give such notice or any
delay by the Indemnified Party in giving such notice unless, and then only to
the extent that, the rights and remedies of the Indemnifying Party shall have
been prejudiced as a result of the failure to give, or delay in giving, such
notice. Failure by an Indemnifying Party to notify the Indemnified Party of its
election to defend any such claim or action within fourteen (14) business days
of its receipt of notice thereof, shall be deemed to constitute its consent to
assumption by the Indemnified Party of such defense. If the Indemnifying Party
assumes the defense of such claim or litigation resulting therefrom, the
obligations of such Indemnifying Party hereunder as to such claim shall include
taking all steps necessary in the defense or settlement of such claim or
litigation resulting therefrom including the retention of counsel reasonably
satisfactory to the Indemnified Party and holding harmless the Indemnified
Party from and against any and all Damages resulting from, arising out of, or
incurred with respect to any settlement approved by the Indemnifying Party or
any judgment in connection with such claim or litigation resulting therefrom.
No Indemnifying Party shall, in the defense of such claim or litigation, (i)
consent to the entry of any judgment (other than a judgment of dismissal on the
merits without costs) except with the written consent of the Indemnified Party
or (ii) enter into any settlement (except with the written consent of the
Indemnified Party), which does not include as an unconditional term thereof the
giving by the claimant or the plaintiff to the Indemnified
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<PAGE> 43
Party or parties to be indemnified a release from all liability in respect of
such claim or litigation, unless in either case all Indemnifying Parties shall
jointly and severally agree to hold harmless the Indemnified Party from and
against any and all Damages resulting from, arising out of or incurred with
respect to such judgment or settlement.
(b) If the Indemnifying Party shall not assume the defense of any such
claim by a third party or litigation resulting therefrom, the Indemnified Party
may defend against such claim or litigation in such manner as it deems
appropriate, and, unless the Indemnifying Party shall deposit with the
Indemnified Party a sum equivalent to the total amount demanded in such claim
or litigation plus an amount equal to the estimate by the Indemnified Party of
the cost of defending the same, the Indemnified Party may settle such claim or
litigation on such terms as it may deem appropriate and the Indemnifying Party
shall promptly reimburse the Indemnified Party for the amount of such
settlement and for all damages incurred by the Indemnified Party in connection
with the defense against or settlement of such claim or litigation.
The obligation of the Indemnifying Party hereunder is subject to the
Indemnified Party fully cooperating with the Indemnifying Party in its defense
or settlement of any claim for which the Indemnified Party seeks to be
indemnified hereunder, including without limitation, providing all information
and taking all actions reasonably requested by the Indemnifying Party in
connection therewith.
(c) Any indemnity payable pursuant to this Article VII shall be paid
within the later of (a) thirty (30) days after the Indemnified Party's request
thereof (in the case of claims involving a
42
<PAGE> 44
third party) or (b) ten (10) days prior to the date on which the Damages upon
which the indemnity is based are required to be satisfied by the Indemnified
Party.
7.03 Period of Indemnity.
(a) Period of Indemnity Under this Agreement. The indemnity
obligations described in this Article VII with respect to matters arising under
this Agreement shall remain in full force and effect (i) as they relate to
claims asserted by third parties for a period equal to the applicable statute
of limitation for such claim, except in connection with the [ ***
], for which the period of indemnity shall be unlimited; provided,
however, that if prior to the expiration of such period any claim for
indemnification has been asserted but not fully determined, such period will be
extended as to such claim until it is finally determined and concluded; and
(ii) as they relate to breaches of representations, warranties and covenants
(other than those contained in Section 3.01(e) and 3.01(l) where the
appropriate period shall be the applicable statute of limitations period for
such claim) shall remain in force for a period of two (2) years following the
First Closing Date with respect to the Assets and the Second Closing Date with
respect to the Second Closing Assets in the case of representations and
warranties and in the case of a covenant, two (2) years from the date that such
covenant has been fully performed or waived by the other party, notwithstanding
any investigation conducted before or after the applicable Closing Date as to
the decision of any party to complete such Closing, provided, however, that if
prior to the expiration of such applicable two (2) year period (or any longer
period as provided above with respect to the representations and warranties set
forth in Section 3.01(e) and 3.01(l) hereof), any claim for breach of any such
representation, warranty, covenant or agreement has
43
<PAGE> 45
been asserted but not fully determined, such period will be extended as to such
claim until it is finally determined or concluded.
(b) Period of Indemnity Under the Services Subcontract. With respect
to matters arising under the Services Subcontract, the indemnity obligations
described in this Article VII shall remain in full force and effect:
(i) as they relate to claims asserted by third parties for a period
equal to the applicable statute of limitation for such claim; provided,
however, that if prior to the expiration of such period any claim for
indemnification has been asserted but not fully determined, such period will be
extended as to such claim until it is finally determined and concluded; and
(ii) as they relate to breaches of representations, warranties and
covenants in the Services Subcontract shall remain in force for a period of two
(2) years following the date of the termination of the Services Subcontract and
in the case of a covenant, two (2) years from the date that such covenant has
been fully performed or waived by the other party, notwithstanding any
investigation conducted before or after the date hereof as to the decision of
any party to enter into such Services Subcontract, provided, however, that if
prior to the expiration of such applicable two (2) year period, any claim for
breach of any such representation, warranty, covenant or agreement has been
asserted but not fully determined, such period will be extended as to such
claim until it is finally determined or concluded.
Section 7.04 Set-off; Escrow.
(a) In order to satisfy any indemnification obligations of any one
party to any other party to this Agreement, and the Other Agreements, each
party hereto hereby grants to each other such
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<PAGE> 46
party the right (in addition to collecting by way of indemnification directly
from the Indemnifying Party) of setoff (in the manner provided pursuant to this
Section 7.04) against any amount otherwise due to a party by any other party
pursuant to any agreement between Seller or IRI and Purchaser and/or
Manugistics. In the event that there is any dispute between the parties
regarding the setoff rights of one party to another, the parties shall promptly
cooperate in good faith for the purpose of resolving such dispute, which
resolution, if achieved, shall be binding upon the parties and not subject to
dispute or review, unless otherwise noted in the document evidencing such
resolution.
(b) If (i) the party electing to exercise its setoff rights (the
"Electing Party") shall have failed to give written notice of the relevant
Damages within fourteen (14) business days after assertion of a written claim
by any third party or the discovery of facts upon which the claim is based,
which notice specified in reasonable detail the amount, nature and source of
the Damages and the rights of the party against whom setoff is claimed (the
"Charged Party") are prejudiced by such delay, but not otherwise; or (ii) the
Electing Party shall have failed to respond to reasonable requests of the
Charged Party for information with respect to the relevant claim, or (iii) the
Charged Party shall have denied the claim or, in the case of third party
claims, chosen to contest the claim in legal proceedings which have not yet
been finally resolved, and if the parties do not resolve, within the applicable
time period specified in Section 7.02(c), any dispute they have regarding the
Electing Party's right to exercise its setoff right, then the Electing Party
shall not be entitled to exercise its right of setoff.
(c) In the event the Electing Party is not entitled to exercise its
right of setoff as provided in subsection 7.04 (b) above, the Electing Party
shall have the right, instead of making any of such payments in accordance with
any of the agreements between any and all of the parties hereto, to
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<PAGE> 47
deposit in escrow an amount reasonably necessary to cover the Damages that can
be reasonably expected to result from disputed or contested claims for
indemnification. Any such deposit into escrow shall be pursuant to a Setoff
Escrow Agreement, substantially in the form of Exhibit 7.04 hereto, with an
escrow agent reasonably satisfactory to Manugistics and IRI. Any amount which
is not setoff by the Electing Party or deposited into escrow by the Electing
Party in accordance with this Section 7.04 shall be paid in accordance with the
terms of this Agreement and the Other Agreements between Seller or IRI and
Purchaser and/or Manugistics.
(d) No setoff by any party hereto shall constitute a waiver by the
Charged Party of its right to contest the validity of the underlying claims for
indemnity of the Electing Party pursuant to this Article VII.
ARTICLE VIII
INTENTIONALLY OMITTED
ARTICLE IX
Miscellaneous Provisions
Section 9.01. INTENTIONALLY OMITTED.
Section 9.02. Brokers. Seller and IRI jointly and severally, represent
and warrant to Purchaser and Manugistics that neither Seller, IRI, nor any
party acting on behalf of either of them, has incurred any liability, either
express or implied, to any "broker" or "finder", or similar person in
connection with this Agreement or any of the transactions contemplated hereby.
Purchaser and Manugistics jointly and severally, represent and warrant to
Seller and IRI that neither Purchaser, Manugistics nor any party acting on
their behalf, has incurred any liability, either express or implied, to any
"broker" or "finder",
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<PAGE> 48
or similar person in connection with this Agreement or any of the transactions
contemplated hereby. Seller and IRI jointly and severally on the one hand in
favor of Purchaser and Manugistics, and Purchaser and Manugistics jointly and
severally on the other in favor of Seller and IRI, each agree to indemnify and
hold harmless such other party against any loss, liability, damage, cost, claim
or expense by reason of any brokerage commission or finders fee finally
determined by a court of competent jurisdiction to be payable because of any
act, omission or statement of the indemnifying party.
Section 9.03. Expenses; Exclusivity.
(a) Each party hereto shall pay its or their own expenses arising
from this Agreement and the transactions contemplated hereby, including,
without limitation, all legal and accounting fees and disbursements, except as
otherwise provided in any of the Other Agreements. In the event of termination
of this Agreement for any reason whatsoever, no party shall be responsible for
the expenses of any other party.
(b) In consideration of the time and expense which the Purchaser
has expended and incurred in connection with its investigation of the Seller
and the preparation of this Agreement and related documents, neither Seller,
IRI nor anyone acting on behalf of either, including without limitation the
officers or directors of either shall, at any time prior to the Second Closing
Date, either directly or indirectly, whether through a broker, finder,
consultant, shareholder or other intermediary, solicit, initiate or encourage
any inquiries or proposals or otherwise participate in any negotiations or
carry on any discussions of any nature whatsoever (except on a need to know
basis with attorneys, accountants and immediate family members) with any party
other than the Purchaser or Manugistics concerning the sale to or purchase by
any party other than the Purchaser of the Second Closing Assets
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<PAGE> 49
or the transactions contemplated hereby, whether by merger, sale of assets,
liquidation, tender offer or other business combination. Seller, IRI, their
officers and directors shall promptly communicate to Purchaser or Manugistics
the terms of any such acquisition proposal received from any third party of
which any of them has knowledge.
Section 9.04. Transfer Taxes. Purchaser and Seller will each pay half of
all sales, use or similar transfer taxes and all recording or registration fees
applicable to the sale and purchase of the Assets.
Section 9.05. Tax Minimization. Each party will cooperate to the extent
practicable in minimizing all taxes and fees levied by reason of the sale and
conveyance of the Assets pursuant to this Agreement. Neither party hereto will
pay any tax that the other party is required to pay without such other party's
prior written consent, which consent will not be unreasonably withheld or
delayed.
Section 9.06. Tax Cooperation. After the First Closing and the Second
Closing, Purchaser and Seller will cooperate with each other and will make
available to each other as reasonably requested, and to any taxing authority,
all information, records and documents relating to tax liabilities or potential
tax liabilities of the Logistics Business for all periods ending on or prior to
the First Closing Date and the Second Closing Date, as applicable, and will
preserve all such information, records and documents until the expiration of
any applicable statutes of limitations or extensions thereof. Purchaser and
Seller also will make available to each other, as reasonably requested by
Purchaser or Seller, as the case may be, personnel responsible for preparing or
maintaining information, records and documents in connection with tax matters,
and they shall also cooperate with each other in the preparation and filing of
tax returns and refund claims relating to periods ending on or prior to the
First Closing Date and the Second Closing Date, as applicable.
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<PAGE> 50
Section 9.07. Survival of Representations. etc. All representations and
warranties made by Seller, IRI, Manugistics, Purchaser and their respective
officers hereunder shall survive the First Closing Date and the Second Closing
Date as provided in Article VII.
Section 9.08. Amendment, Modification and Termination. This Agreement
may be amended, modified or supplemented only by the written agreement of
Purchaser, Manugistics, Seller and IRI at any time prior to the date of First
Closing with respect to any of the terms contained herein.
Section 9.09. Public Announcements. None of the parties to this
Agreement shall, directly or indirectly, make any public comment, statement or
communication with respect to, or otherwise disclose or permit the disclosure
of the existence of, this Agreement or the transactions contemplated hereby
(except to lawyers, accountants and other professional advisors on a need to
know basis) other than with the express written consent of the other party,
except as required by law or court order, and further subject to Manugistics'
and IRI's legal duty to make appropriate public disclosures under SEC or NASD
rules and regulations. Seller and Manugistics shall consult with each other
concerning the means by which their respective employees, customers and
suppliers will be informed of the transactions contemplated hereby.
Section 9.10. Waiver of Compliance; Consents. Any failure of Seller or
IRI on the one hand, or Purchaser or Manugistics on the other hand, to comply
with any obligation, covenant, agreement or condition may be waived in writing
by the party entitled to the performance of such obligation, covenant or
agreement or who has the benefit of such condition, but such waiver or failure
to insist upon strict compliance with such obligation, covenant, agreement or
condition shall not operate as a waiver of, or estoppel with respect to, any
subsequent or other failure.
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<PAGE> 51
Section 9.11. Further Assurances. Each of the parties hereto shall
hereafter execute and deliver such further documents and instruments and do
such further acts and things as may be required or useful to carry out the
intent and purpose of this Agreement and as are not inconsistent with the terms
hereof. Seller and IRI shall use their best efforts to obtain any required
consents not received on or before the First Closing Date as promptly as
practicable following the occurrence of such First Closing Date, and Purchaser
and Manugistics shall cooperate in all reasonable respects in connection with
such efforts. The parties shall fully cooperate in all reasonable respects
with one another in the defense or settlement of the [
*** ], including, without limitation, providing all information and
taking all actions reasonably requested by the party seeking cooperation.
Section 9.12. Enforcement. The parties recognize that the
representations, covenants and warranties set forth in this Agreement are
special and unique and, in the event there is a breach hereof by Seller, IRI,
Purchaser or Manugistics, the non-breaching party will suffer irreparable harm,
the amount of which will be impossible to ascertain and as a result of which
the remedy at law will not be adequate. Accordingly, except as otherwise
provided in Section 7.01(b) and (d), any party shall be entitled, if it so
elects, to institute and prosecute proceedings in any court of competent
jurisdiction, either at law or in equity, to obtain damages for any breach or
to enforce specific performance of the provisions or to enjoin Seller, IRI,
Purchaser or Manugistics from committing any act in breach of this Agreement.
Except as otherwise provided in Section 7.01(b) and (d), the remedies granted
to each party in this Agreement are cumulative and are in addition to remedies
otherwise available to such party at law or in equity.
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Section 9.13. Severability. If any term or provision of this Agreement
or the application thereof to any person or circumstance shall, to any extent,
be held invalid or unenforceable by any court of competent jurisdiction, the
remainder of this Agreement or the application of any such term or provision to
persons or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each term and provision of
this Agreement shall be valid and enforceable to the fullest extent permitted
by law. If any provision contained in this Agreement shall for any reason be
held to be excessively broad as to duration, scope, activity or subject, it
shall be construed by limiting and reducing it, so as to be valid and
enforceable to the extent compatible with the applicable law or the
determination by a court of competent jurisdiction.
Section 9.14. Notices. All notices, requests, demands and other
communications required or permitted hereunder shall be in writing and shall be
deemed to have been duly given when delivered by hand or mailed by certified
mail, return receipt requested, with postage prepaid as follows:
(a) If to Seller or IRI to:
IRI Logistics, Inc.
150 North Clinton Street
Chicago, IL 60661-1416
Attention: Edward S. Berger, Esq.,
General Counsel
With a copy to:
Robert A. McWilliams
Freeborn & Peters
311 S. Wacker Drive
Suite 3000
Chicago, IL 60606
or to such other person or address as Seller shall furnish to Purchaser in
writing.
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<PAGE> 53
(b) If to Purchaser or Manugistics to:
Manugistics Services, Inc.
2115 East Jefferson Street
Rockville, MD 20852
Attn.: Helen Nastasia, General Counsel
With a copy to:
Harriet J. Koren, Esquire
Dilworth, Paxson, Kalish & Kauffman, LLP
3200 Mellon Bank Center
1735 Market Street
Philadelphia, PA 19103
Section 9.15. Assignment. This Agreement shall not be assigned by a party
hereto without the prior written consent of the other parties hereto which
shall not be unreasonably withheld. Subject to the foregoing, this Agreement
and all of the provisions hereof shall be binding upon and inure to the benefit
of the parties hereto and their respective successors, assigns, heirs,
executors and personal representatives. Nothing in this Agreement is intended
to or shall be taken as granting any right of any nature to any Person not a
party hereto.
Section 9.16. Governing Law. All matters with respect to this Agreement,
including but not limited to matters of validity, construction and performance,
shall be governed by the laws of Delaware applicable to contracts made and to
be performed therein between residents thereof (regardless of the laws that
might be applicable under principles of conflicts of law).
Section 9.17. Books and Records. Following the First Closing, Purchaser
shall retain all of the financial and personnel books and records included in
the Assets in a safe and reasonably accessible place for a period of five (5)
years. Purchaser shall on reasonable prior notice to it, afford to Seller and
to its counsel, accountants, consultants and other representatives reasonable
access to all such books
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and records so retained by Purchaser to examine, inspect and copy all of such
books and records for any reasonable purpose. All costs associated with any
copying of such books and records shall be borne by Seller and IRI.
Section 9.18. Counterparts. This Agreement may be executed in two or
more fully or partially executed counterparts, each of which shall be deemed an
original binding the signer thereof against the other signing parties, but all
counterparts together shall constitute one and the same instrument.
Section 9.19. Headings. The article and section headings contained in
this Agreement are for reference purposesonly and shall not affect in any way
the meaning or interpretation of this Agreement.
Section 9.20. Certain Rules of Construction. Whenever any statement or
representation of a party hereto is made herein to the knowledge or best
knowledge of such party, such statement or representation shall be deemed to
have been made with such knowledge as would have been obtained by such party
after conducting a reasonable investigation with respect to such statement or
representation.
Section 9.21. Entire Agreement. This Agreement, the Schedules and
Exhibits hereto, and any other document to be furnished pursuant to the
provisions hereof embody the entire agreement and understanding of the parties
hereto in respect of the subject matter contained herein. There are no
restrictions, promises, representations, warranties, covenants, or
undertakings, other than those expressly set forth or referred to in such
documents. This Agreement and such documents supersede all prior agreements
and understandings between the parties with respect to such subject matter.
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Section 9.22 Schedules. For purposes of this Agreement, with respect to
any matter that is clearly disclosed in a schedule to this Agreement in
response to the information called for by the corresponding section of this
Agreement in such a way as to make its relevance to the information called for
by another section of this Agreement clearly apparent (if through an
appropriate cross-reference or otherwise) such matter shall be deemed to have
been included in the schedule corresponding to such other section.
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<PAGE> 56
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed, as of the day and year first above written.
PURCHASER:
MANUGISTICS SERVICES, INC.
Attest: /s/ Helen A. Nastasia By: /s/ William M. Gibson
--------------------------- ------------------------
Secretary President
MANUGISTICS, INC.
Attest: /s/ Helen A. Nastasia By: /s/ William M. Gibson
-------------------------- ------------------------
Secretary President
SELLER:
IRI LOGISTICS, INC.
Attest: /s/ Edward S. Berger By: /s/ Narendra Mulani
-------------------------- ------------------------
Secretary President
INFORMATION RESOURCES, INC.
Attest: /s/ Edward S. Berger By: /s/ Gian M. Fulgoni
-------------------------- ------------------
Secretary Chief Executive Officer
55