Asset Purchase Agreement - SPSS Inc. and DataStat SA
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ASSET PURCHASE AGREEMENT
By and Between
SPSS INC.
and
DATASTAT, S.A.
Dated as of December 23, 1999
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ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT, dated as of December 23, 1999 (the "Agreement"),
by and between DataStat, S.A., a corporation organized under the laws of
Luxembourg ("DataStat") and SPSS Inc., a Delaware corporation ("SPSS").
W I T N E S S E T H:
WHEREAS, DataStat is engaged in the business of developing and distributing
software, including its VerbaStat computer software products ("VStat"); and
WHEREAS, SPSS also is engaged in the business of developing and
distributing software; and
WHEREAS, DataStat desires to sell to SPSS, and SPSS desires to purchase
from DataStat, certain of DataStat's assets relating to Vstat exclusively;
NOW, THEREFORE, in consideration of the premises, the mutual covenants and
agreements contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and in reliance upon
the representations and warranties contained herein, the parties hereto agree as
follows:
ARTICLE I
TERMS OF PURCHASE AND SALE
1.1 Purchase and Sale. Except as set forth below or in Section 1.4 and
subject to the terms and conditions of this Agreement, on the Closing Date (as
defined herein), DataStat hereby agrees to sell, convey, assign, transfer and
deliver to SPSS, and SPSS hereby agrees to purchase and accept from DataStat,
all of DataStat's assets exclusively relating to and comprising VStat, namely a
software package for data entry, classification and coding of open-ended
responses in the framework of the survey process, including, but not limited to
all intellectual property related to its current and future development, sales
and related cash and accounts receivable generated from and after the effective
date of this Agreement as contemplated in Section 1.2 hereof (the "Effective
Date"), assets, software, deposits and properties of every kind, character and
description, whether tangible, intangible, or personal, and wherever located
(collectively, the "Assets"). SPSS hereby grants to DataStat, for no additional
consideration, one three-user license to use the VStat software or any upgraded
versions thereof, which use shall be limited to DataStat's in-house survey
tabulation business, and shall in no circumstances include any right to sell the
VStat software or include or incorporate the VStat Software (except for the
"Keyword Search" methodology) in any product or application sold, leased or
licensed by DataStat to any third party, and DataStat shall not assign or convey
any such rights, in whole or in part, to any third party. The Assets shall
include, but not be limited to, the following:
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(a) all computer program code (in all media) and VStat materials and
program documentation, and all technical and descriptive
materials relating to the acquisition, design, development, use
or maintenance of VStat computer code and VStat program
documentation and materials in any and all languages (the
"Technical Documentation"); provided, however, that on the
Closing Date, DataStat shall deliver versions 4.1 and 5 of the
VStat computer program code and related technical manuals, and
all other Technical Documentation shall be delivered by DataStat
to SPSS within 30 days of the Closing Date;
(b) with respect to VStat, all of DataStat's rights and benefits (but
excluding, unless otherwise specifically provided herein, all
duties and obligations arising prior to the Closing Date)
relating to contractual rights, sales representative agreements,
distributor agreements, OEM agreements, license agreements,
vendors' warranties on VStat inventory, orders on the books and
work-in- process existing on the Closing Date with respect to
VStat, and other commitments or arrangements, oral or written,
with any person or entity respecting the ownership, license,
acquisition, design, development, distribution, marketing, use or
maintenance of VStat computer program code and related technical
or user documentation (the "Contracts").
(c) the name "VerbaStat" and any trade names, trademarks and service
marks related thereto (including registrations, licenses and
applications pertaining thereto), whether registered or at common
law, together with all goodwill associated therewith with the
exception of the same relating to the name "DataStat";
(d) with respect to VStat, all of DataStat's parts lists, vendor
lists, customer lists, catalogues, promotion lists and marketing
data and other compilations of names and requirements, and trade
secrets and other material information used by DataStat with
respect to VStat; provided, however, that prior to the Closing
Date, DataStat delivered to SPSS its lists of current and
prospective customers, and all other information referenced in
this subsection 1.1(d) shall be delivered by DataStat to SPSS
within 30 days of the Closing Date;
(e) with respect to VStat, all of DataStat's computer programs,
designs, processes, drawings, schematics, blueprints, copyrights,
copyright applications, inventions, processes, know-how, or trade
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secrets or proprietary information related to VStat with the
exception of all rights, including rights in patents and patent
applications, in a data extraction method used in VStat more
precisely described in the Belgian patent application of November
25, 1999, n(degree)09900767 and generally referred to as the
"Keyword Search" methodology; provided, however, that DataStat
hereby grants to SPSS, for no additional consideration, a
perpetual, non- exclusive license to use the source code of
"Keyword Search" and such methodology in any way SPSS desires,
including, without limitation, the modification or enhancement
thereof or the inclusion or incorporation of such source code or
methodology in any current or future products or applications of
SPSS or its subsidiaries or affiliates. Notwithstanding anything
herein to the contrary, SPSS has the right to transfer or assign
such license to any third party that acquires the VStat business
from SPSS or acquires all or substantially all of the stock of
SPSS without the consent of DataStat, it being understood and
agreed that such license shall be binding upon DataStat and its
successors and assigns, and shall inure to the benefit of SPSS
and its successors and assigns. Notwithstanding the foregoing,
SPSS shall not sell the "Keyword Search" methodology as a
stand-alone product without DataStat's consent.
1.2 Time and Place of Closing. Subject to the terms and conditions of this
Agreement, the consummation of the transactions contemplated hereby (the
"Closing") shall take place at the offices of Ross & Hardies, 150 N. Michigan
Avenue, Chicago, Illinois on December 23, 1999 (the "Closing Date") or at such
other place or time as the parties may agree and, for all purposes, shall be
deemed to be effective as of the close of business on December 23, 1999.
Signatures delivered by facsimile transmission shall be deemed original.
1.3 Purchase Price. Upon satisfaction of all of the terms and conditions
set forth in this Agreement, SPSS shall deliver the Purchase Price consisting of
ONE MILLION AND NO/100 U.S. DOLLARS (U.S.$1,000,000.00), to be paid in twelve
quarterly installments the first eleven of which shall be EIGHTY THREE THOUSAND
THREE HUNDRED THIRTY-THREE AND 33/100 U.S. DOLLARS (U.S.$83,333.33) and the
twelfth of which shall be EIGHTY THREE THOUSAND THREE HUNDRED THIRTY-THREE AND
40/100 U.S. DOLLARS (U.S.$83,333.40). SPSS shall pay an installment on the last
day of each of January, April, July and October of each calendar year following
the Closing Date (each, a "Payment Date"), until the Purchase Price is paid in
full; provided, however, that the first installment shall be paid in advance on
the Closing Date. In no event shall SPSS pay any installment later than fifteen
days after any Payment Date. SPSS shall make such payments by check payable to
"DataStat" at the DataStat address in Section 11.4 or to the order of any other
payee designated by DataStat; provided, however,
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that payments made at DataStat's request to any payee other than DataStat shall
be deemed payment to DataStat.
1.4 Assumption of Liabilities and Obligations. SPSS agrees that, effective
upon the Closing, it shall assume no liabilities and obligations of DataStat
related to the Assets except those accruing after the Closing Date relating to
contracts set forth in SCHEDULE 2.12 which are actually assumed by SPSS
(collectively, the "Assumed Liabilities"). SPSS shall assume only those duties
and obligations of DataStat arising or accruing thereunder after the Closing
Date and SPSS shall have no other duty or obligations. It is expressly
understood and agreed that, except for the Assumed Liabilities, SPSS shall not
be liable for any of the liabilities of DataStat or the VStat business not
constituting Assumed Liabilities (hereinafter, collectively, the "Excluded
Liabilities").
Unless specifically stated to the contrary, this Agreement shall not
constitute an agreement or an attempted agreement to transfer, sublease or
assign any Assumed Liability or any claim or right arising thereunder or
resulting therefrom if any such attempted transfer, sublease or assignment,
without the consent of any other party thereto, would constitute a breach of
such Assumed Liability or in any way affect the rights of SPSS thereunder.
DataStat shall, between the date hereof and the Closing and, if requested by
SPSS, after the Closing, use all reasonable efforts to obtain the consent of any
such party to the transfer, sublease or assignment thereof by DataStat to SPSS
hereunder in all cases in which such consent is required for transfer, sublease
or assignment. If any such consent is not obtained, or if any attempted
assignment thereof would be ineffective or would affect the rights of DataStat
thereunder such that SPSS would not in fact receive all rights related to an
Assumed Liability, DataStat shall, with the reasonable assistance of SPSS, at
DataStat's expense, perform such Assumed Liability for the account of SPSS or
otherwise cooperate with SPSS at DataStat's expense in any arrangement necessary
or desirable to provide for SPSS the benefits under any such Assumed Liability,
including, without limitation, enforcement for the benefit of SPSS of any and
all rights of DataStat against the other party thereto arising out of the
breach, termination or cancellation of such Assumed Liability by such other
party or otherwise. With respect to those Assumed Liabilities that are license
agreements as to which licensee consent is required for DataStat to assign such
license agreements to SPSS, (i) SPSS shall and hereby does grant DataStat such
licenses as DataStat requires to be in compliance with such license agreements
and (ii) DataStat and SPSS shall enter into good faith negotiations with such
licensee for the assignment of such license agreement to SPSS.
1.5 Liabilities Not Assumed. Pursuant to Article X, DataStat shall
indemnify, defend and hold SPSS harmless from all Excluded Liabilities and
DataStat's legal fees and other expenses incurred in connection with the
transactions contemplated hereby, and all claims, suits, actions, losses,
damages, costs and expenses (including, without limitation, reasonable
attorneys' fees) arising therefrom or from any failure by DataStat to pay or
discharge such liabilities and obligations as and when they become due.
1.6 Taxes. SPSS shall not be responsible for, or suffer a reduction in
assets to be received by it for, any income, sales, use, value added, excise or
other taxes of any kind
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whether arising before, after or as a result of this purchase, relating solely
to DataStat's ownership of the Assets or the consummation of the transactions
contemplated hereby; provided, however, that SPSS shall be responsible for all
U.S. federal and state taxes which are imposed on SPSS as a result of the
consummation of the transactions contemplated hereby (but not including any U.S.
federal or state taxes imposed on DataStat for activities of DataStat prior to
the Closing Date).
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF DATASTAT
As of the date hereof and as of the Closing Date, DataStat represents and
warrants to SPSS as follows:
2.1 Organization and Qualification. DataStat is a corporation duly
organized, validly existing and in good standing under the laws of Luxembourg
and has the corporate power and authority to enter into this Agreement, to
consummate the transactions contemplated hereby, to own or lease the Assets
which it presently owns or leases and to carry on its business as presently
conducted. DataStat is duly licensed or qualified to do business as a foreign
corporation, and is in good standing in every foreign jurisdiction in which it
is required to be so licensed or qualified.
2.2 Authority. DataStat has full power, capacity and authority (corporate
or otherwise) to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been duly and
validly authorized and approved by all necessary action on the part of the Board
of Directors of DataStat and no other proceedings (shareholder, corporate or
otherwise) on the part of either DataStat or its shareholders are necessary to
authorize this Agreement or to consummate the transactions contemplated hereby.
This Agreement and the other agreements contemplated by this Agreement have been
duly and validly executed and delivered by DataStat, and each constitutes a
legal, valid and binding agreement of DataStat, enforceable against DataStat in
accordance with their respective terms, except as their obligations thereunder
may be limited by bankruptcy, insolvency or other similar laws affecting the
enforcement of creditors' rights in general and by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
2.3 Consents and Approvals. There is no authorization, consent, order or
approval of, or notice to or filing with, any individual or entity required to
be obtained or given in order for DataStat to consummate the transactions
contemplated hereby and fully perform its obligations hereunder.
2.4 Absence of Conflicts. The execution, delivery and performance by
DataStat of this Agreement and the consummation by DataStat of the transactions
contemplated hereby will not, with or without the giving of notice or lapse of
time or both, (i) violate any provision of law, statute, rule or regulation to
which DataStat is subject, (ii) violate any order, judgment or
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decree applicable to DataStat, (iii) conflict with or result in a breach or
default under any term or condition of the Articles of Incorporation or By-Laws
of DataStat, or any agreement or other instrument to which DataStat is a party
or by which it is bound, or to which any of the Assets are subject, (iv) result
in the creation or imposition of any lien, pledge, claim, security interest or
encumbrance of any nature whatsoever on the Assets, (v) have a material adverse
effect upon the Assets or the Assumed Liabilities, or (vi) cause, or give any
person grounds to cause, the maturity of the Assumed Liabilities to be
accelerated.
2.5 Customer List. Schedule 2.12 contains the list of key DataStat
customers and license fees associated therewith relating to the Assets as of the
Closing Date. DataStat shall provide a complete customer list to SPSS no later
than January 31, 2000.
DataStat is not in default in respect of any term or condition of any
indebtedness or liability relating to the Assets. There are no facts in
existence and known to DataStat which might reasonably serve as the basis for
any liabilities or obligations of DataStat relating to the Assets not disclosed
in this Agreement, other than liabilities incurred or to be incurred in the
ordinary course of business.
2.6 Absence of Undisclosed Liabilities. DataStat does not have any
liabilities or obligations relating to the Assets, whether accrued, absolute or
contingent, determined or undetermined, known or unknown, or whether due or to
become due (including, without limitation, obligations as guarantor). DataStat
knows of no basis for the assertion of any claim or liability relating to the
Assets or the business of DataStat, and is not aware of any occurrence or fact
that has or might have an adverse effect upon the Assets or DataStat's business
relating thereto.
2.7 Absence of Certain Changes or Events. Since November 30, 1999, there
has not been (a) any material damage, destruction or casualty loss to the Assets
(whether covered by insurance or not) outside the ordinary course of business;
(b) any entry into any transaction, commitment or agreement (including, without
limitation, any borrowing) material to the Assets, or relating to the Assets and
outside the ordinary course of business of DataStat; (c) any sale, transfer or
other disposition of the Assets to any party, except for payment of obligations
incurred, and sale of products, in the ordinary course of business consistent
with past practices; (d) any amendment or termination of any material contract
or agreement relating to the Assets to which DataStat is a party or any
termination or waiver of any other rights of value relating to the Assets; (e)
any failure by DataStat to pay its accounts payable or other obligations
relating to the Assets in the ordinary course of business; (f) any pledge of any
of the Assets or any action or inaction which would subject the Assets to any
lien, security interest, mortgage, pledge, claim, charge or other encumbrance of
any kind; (g) the incurrence of any liability or obligation by DataStat related
to the Assets, except for liabilities incurred in the ordinary course of
business; (h) any actual or threatened termination or cancellation of, or
modification or change in, any business relationship with any customer or
customers of DataStat relating to the Assets or other agreement or arrangement
involving or related to the Assets; (i) any other event or condition of any
character which materially and adversely affects
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the Assets; or (r) any agreement, whether in writing or otherwise, to take any
action described in this Section 2.7.
2.8 Personal Property; Inventories. DataStat has good and marketable title
to, and is in possession of or has control over, all of the personal property
comprising the Assets, none of which is held under or subject to any pledge,
lien, lease, encumbrance, conditional sales contract or other security
arrangement.
2.9 Patents, Trademarks, Etc. SCHEDULE 2.9 hereto contains an accurate and
complete description of all domestic and foreign trademark registrations,
copyright registrations and all applications therefor with respect to VStat (the
"Registered Intellectual Property"), presently owned or held by DataStat or
under which DataStat owns or holds any license, or in which DataStat owns or
holds any direct or indirect interest. To the best knowledge of DataStat, no
VStat products manufactured, distributed or sold by DataStat, nor any of
DataStat's activities, conflict with, infringe or otherwise violate any patents,
trademarks or copyrights, or any other rights, of any individual or entity.
DataStat has the sole and exclusive right to use, has the right and power to
sell, and has taken reasonable measures to maintain and protect the Intellectual
Property (as defined herein); no claims have been asserted by any individual or
entity with respect thereto or challenging or questioning the validity or
effectiveness of any license or agreement with respect thereto, and, to the best
knowledge of DataStat, there is no valid basis for any such claim. DataStat is
not using confidential information or trade secrets of any former employer of
any past or present employees engaged in DataStat's business. The items
described in SCHEDULE 2.9 and DataStat's other intellectual property relating to
VStat (including, without limitation, trademarks, service marks, logos, trade
names, assumed names, trade secrets, know-how, technology, inventions,
processes, designs and copyrights) (collectively, "Intellectual Property") are
adequate to conduct DataStat's business with respect to VStat as presently
conducted. Upon consummation of the transactions contemplated hereby, SPSS will
acquire good and marketable title to all of the Intellectual Property and the
goodwill associated therewith, subject to the restrictions listed in
Section 1.1.
2.10 Employees. All personnel, including employees, agents, consultants and
contractors, who have contributed to or participated in the conception and
development of the Intellectual Property on behalf of DataStat have executed
appropriate instruments of assignment, which are still in full force and effect,
in favor of DataStat, as assignee, that have conveyed to DataStat full,
effective and exclusive ownership of all intellectual property thereby arising.
DataStat does not own or have any right, license or interest, whether as a
licensee, licensor or otherwise, in any copyrights, patents, applications for
copyrights or patents, trade secrets, inventions, processes and designs or in
any trademarks, service marks, trade names, or applications for them related to
VStat.
2.11 Source Code. DataStat owns all rights, title and interest in and to
the source code for VStat and has not distributed any copies of such source code
to any third parties, and DataStat has not agreed to pay to any individual or
entity any royalty, commission or other amount
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on account of sales of VStat. DataStat owns all rights, title and interest in
and to all localizations and translations of manuals and other technical
documentation.
2.12 Contracts and Commitments.
(a) Other than standard form customer contracts and verbal contracts,
entered into in the ordinary course of business, each as set forth in SCHEDULE
2.12, DataStat is not a party to any agreements, contracts, guarantees,
commitments, restrictions or instruments of any kind relating to the Assets
("Contracts"). True and correct copies of all key Contracts have been made
available to SPSS at a reasonable time prior to Closing. All of the Contracts
are valid and binding obligations of DataStat, enforceable in accordance with
their respective terms to the extent permitted by applicable law, and are in
full force and effect and DataStat is in compliance therewith. None of the
Contracts has, or may to the best of DataStat's knowledge have, a material
adverse effect on the Assets. No other party to any of the Contracts is in
default or breach thereof. DataStat has not agreed with any customer or
distributor to make any variation in any such contract which could have a
material adverse effect on the Assets.
(b) DataStat is not in default, and there is no basis for any valid
claim of default, in any respect under any of the Contracts.
2.13 Licenses and Royalties. DataStat is not a licensee under any license
with respect to the Assets, including, without limitation, licenses with respect
to source codes used or to be used in VStat, and does not have an obligation to
pay royalties to any third party in connection therewith, and DataStat has not
granted to any individual or entity any rights with respect to the source codes
for VStat.
2.14 Adequacy of Documentation. The Technical Documentation includes the
source code, system documentation, statements or principles of operation, and
schematics for VStat currently maintained or licensed by DataStat, as well as
any pertinent commentary or explanation that may be necessary to render such
materials understandable and usable by a trained computer programmer familiar
with the relevant compilers, tools and platform.
2.15 Third-Party Components in Software Programs. VStat and the Technical
Documentation contain no other programming or materials in which any third party
may claim superior, joint or common ownership, including any right or license,
and, do not contain derivative works of any programming or materials not owned
in their entirety by DataStat.
2.16 Third-Party Interests or Marketing Rights in VStat Software Programs.
All of DataStat's standard form customer contracts constitute only end-user
agreements, each of which grants the end-user thereunder solely the
non-exclusive right and license to use VStat and related user documentation, for
internal purposes only. There are no contracts, agreements, licenses or other
commitments or arrangements in effect with respect to the development,
marketing, distribution, licensing, or promotion of VStat, the Technical
Documentation, or DataStat's
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Intellectual Property with any independent salesperson, distributor,
sublicensor, or other remarketer or sales organization.
2.17 No Virus Warranties. DataStat represents and warrants that VStat, as
delivered to SPSS, shall be free of any passwords, keys, security devices or
trap doors, and any computer instructions (including, but not limited to,
computer instructions commonly referred to as Trojan Horses, anomalies, worms,
self-destruct mechanisms, or time/logic bombs) which are intended to interfere
with or frustrate the use of the software products, any portion thereof, or
other software or computer hardware, whether or not currently in effect with
respect to any copy of DataStat's software products.
2.18 Purchased Software; Physical Media. The software purchased as part of
the Assets, other than that currently under development (the "Purchased
Software"), will operate in accordance with the Technical Documentation. The
Purchased Software and any licenses or other rights connected therewith, express
or implied, will not infringe any other person's intellectual property rights
and DataStat has full right and authority to sell and assign the Purchased
Software, and the rights connected therewith to SPSS. Each copy of Purchased
Software delivered by DataStat is and will be free from physical defects in the
media that tangibly embodies the copy.
2.19 Product Warranties and Liabilities. DataStat has not given or made any
express or implied warranties to third parties with respect to any Assets
licensed or sold or services performed by it related thereto, except for the
limited warranties stated in DataStat's standard form customer contracts, in the
forms attached to SCHEDULE 2.12, with modifications that, in the aggregate,
would not have a material adverse effect on the Assets. DataStat does not have
any knowledge of any fact or of the occurrence of any event forming the basis of
any present or future claim against DataStat relating to the Assets whether or
not fully covered by insurance, for liability on account of products liability
or on account of any express or implied product warranty, except for warranty
obligations and product returns in the ordinary course of business.
2.20 Litigation and Administrative Proceedings. There is no claim, action,
suit, proceeding or investigation in any court or before any governmental or
regulatory authority pending or threatened against or affecting DataStat
relating to the Assets or which seeks to enjoin or obtain damages in respect of
the transactions contemplated hereby. DataStat does not know or have reason to
know of any basis for any such claim, action, suit, proceeding or investigation.
2.21 Tax Matters. None of the Assets is subject to any lien or other
encumbrance as a result of unpaid taxes and SPSS will not become liable for any
taxes as a result of this purchase, relating solely to DataStat's ownership of
the Assets or the consummation of the transaction contemplated hereunder.
Notwithstanding the foregoing, DataStat makes no representation or warranty as
to whether SPSS will become liable for any U.S. federal or state taxes as a
result of the consummation of the transactions contemplated hereby (but not
including any U.S. federal or state taxes imposed on DataStat for activities of
DataStat prior to the Closing Date).
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2.22 Licenses and Permits. DataStat has all governmental licenses and
permits and other governmental authorizations and approvals required for the
conduct of its businesses as presently conducted with respect to the Assets
("Permits").
2.23 Relations With Suppliers and Customers. DataStat is not required to
provide any bonding or other financial security arrangements in connection with
any transaction with any customer or supplier with respect to the Assets.
DataStat has not received any notice that any customer or supplier of DataStat
will not do business with SPSS after the consummation of the transactions
contemplated hereby.
2.24 Interests in Competitors, Suppliers and Customers. No officer or
director of DataStat or any entity controlled by or under common control with
DataStat has any ownership interest in any competitor, supplier or customer of
DataStat or any property used in the operation of the business of DataStat, as
same may relate to the Assets.
2.25 Brokers and Finders. DataStat has not employed any broker, finder or
investment banker, or incurred any liability for any brokerage fees, commissions
or finders' fees in connection with this Agreement or the transactions
contemplated hereby.
2.26 Title to Assets; No Liens. DataStat has good and marketable title to,
and is in possession of or has control over, all of the Assets, free and clear
of all liabilities, liens, security interests, mortgages, pledges, claims,
judgments, exceptions, charges and encumbrances and obligations of every kind
and nature. None of the Assets is held under any lease or conditional sales
contract and all of the Assets are in good repair and operating condition, and
all of the computer programming will operate in accordance with its
documentation at all times and there are no defects or other conditions with
respect thereto which would necessitate repairs, reconditioning or replacement
thereof.
2.27 Necessary Property. There exists no condition, restriction or
reservation affecting the title to or utility of the Assets or the Assumed
Liabilities which would prevent SPSS from occupying or utilizing the Assets or
the Assumed Liabilities, or any part thereof, to the same full extent that
DataStat might continue to do so if the sale and transfer contemplated hereby
did not occur.
2.28 Current Products. All of DataStat's software products and user
documentation relating to the Assets and currently offered for license or
maintained or supported by DataStat (collectively, "Current Products") are
listed on SCHEDULE 2.28 hereto. All of the Current Products are included in the
Assets and, effective upon consummation of the Closing, SPSS will obtain and
hold the complete and exclusive right, title and interest in and to all of the
Current Products.
2.29 Year 2000 Compliance. VStat is designed to be used from, into and
between the 20th and 21st centuries, including the years 1999 and 2000. VStat
will accurately
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receive, provide and process date/time data (including, but not limited to,
calculating, comparing and sequencing) during such time periods, and VStat will
not malfunction, cease to function, or provide invalid or incorrect results as a
result of date/time data or leap year calculations.
2.30 Full Disclosure. No representation or warranty to SPSS contained in
this Agreement, and no statement contained in the disclosure schedules, any
certificate, list or other writing furnished to SPSS pursuant to the provisions
hereof, contains any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements herein or therein not
misleading.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SPSS
As of the date hereof and as of the Closing Date, SPSS represents and
warrants to DataStat as follows:
3.1 Organization and Qualification. SPSS is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware
and has the corporate power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby.
3.2 Authority. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly and validly
authorized by SPSS, and no other corporate proceedings on the part of SPSS are
necessary to authorize this Agreement or to consummate the transactions
contemplated hereby. This Agreement has been duly and validly executed and
delivered by SPSS and constitutes legal, valid and binding agreement of SPSS.
3.3 Consents and Approvals. There is no authorization, consent, order or
approval of, or notice to or filing with, any individual or entity required to
be obtained or given in order for SPSS to consummate the transactions
contemplated hereby and fully perform its obligations hereunder, excluding,
however, any authorization, consent, order, approval or filing which DataStat is
required to obtain or give.
3.4 Absence of Conflicts. The execution, delivery and performance by SPSS
of this Agreement and the consummation by SPSS of the transactions contemplated
hereby will not, with or without the giving of notice or the lapse of time, or
both, (i) violate any provision of law, statute, rule or regulation to which
SPSS is subject, (ii) violate any order, judgment or decree applicable to SPSS
or (iii) conflict with, or result in a breach or default under, any term or
condition of the Certificate of Incorporation or By-Laws of SPSS or any
agreement or other instrument to which SPSS is a party or by which SPSS is
bound.
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3.5 Litigation and Administrative Proceedings. There is no claim, action,
suit, proceeding or investigation in any court or before any governmental or
regulatory authority pending or threatened against or affecting SPSS which seeks
to enjoin or obtain damages in respect of the transactions contemplated hereby.
3.6 Brokers and Finders. SPSS has not employed any broker, finder or
investment banker, or incurred any liability for any brokerage fees, commissions
or finders' fees in connection with this Agreement or the transactions
contemplated by this Agreement.
ARTICLE IV
COVENANTS OF DATASTAT
DataStat covenants as follows:
4.1 Tax Matters. DataStat will timely pay or satisfy all liabilities
imposed on DataStat by any taxing authority under any tax statute that may be
due by DataStat as a result of the sale of the Assets hereunder. SPSS shall be
liable for any tax liability that may be imposed on SPSS solely as a result of
SPSS's acquisition of the Assets hereunder; provided, however, that DataStat
shall be liable for any taxes accruing or arising prior to the Closing Date and
relating to the Assets.
4.2 Post-Closing Access to Information. For a period of three (3) years
after the Closing, DataStat shall not dispose of any books, records, documents
or information relating in whole or part to the Assets or otherwise to the VStat
business of DataStat without first giving notice to SPSS and permitting SPSS to
copy, without cost, those portions of such books and records which relate to the
Assets or otherwise to the VStat business as SPSS may select. During such three
(3)- year period, DataStat shall permit SPSS to examine and make copies, at
SPSS's expense, of such books, records, documents or information for any
reasonable purpose, including but not limited to any litigation commenced
against SPSS or any affiliate of SPSS or the preparation of income or other tax
returns or in connection with any administrative or regulatory proceedings or
actions.
4.3 Right of Endorsement. Upon the Closing and thereafter, SPSS shall have
the right and authority to endorse, without recourse, the name of DataStat on
any check or any other evidence of indebtedness received by SPSS and to which it
is entitled on account of any receivable or other Asset transferred by DataStat
pursuant hereto, and DataStat shall deliver to SPSS at the Closing documents
sufficient to permit SPSS to deposit such checks or other evidences of
indebtedness in bank accounts in the name of SPSS.
4.4 Accounts Receivable. After the Closing, DataStat shall promptly remit
to SPSS all the proceeds of any checks and other payments for accounts
receivable belonging to SPSS under this Agreement and coming into the possession
of DataStat. DataStat shall also ensure that
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payments received by DataStat on accounts receivables can be identified as for
the account of SPSS or for the account of DataStat.
4.5 Further Assurances. After the Closing, DataStat shall within a period
of one (1) year, at the request of SPSS and without further cost or expense to
SPSS, execute and deliver such other documents and take such other actions as
shall be reasonably necessary or appropriate to consummate fully the
transactions contemplated hereby.
4.6 Discontinuance of Use. Upon Closing, DataStat will discontinue use of
the name "VerbaStat" and of the prefix "Verba" or any confusingly similar part
of the name except for purposes of collecting unpaid accounts receivable related
to the Assets.
4.7 Consents. DataStat will use all reasonable efforts to obtain the
express written consent of all third parties necessary to assign any Contracts
included in the Assets. If any third party withholds consent or DataStat
receives royalties or payments on account of such Contracts after Closing,
DataStat will hold all such amounts in trust for SPSS and promptly pay same to
SPSS. DataStat will indemnify and hold SPSS harmless from and against any loss
suffered by SPSS as a result of DataStat's failure to obtain any necessary
consent to the assignment of such Contracts.
4.8 Non-Competition; Confidentiality.
4.8.1 DataStat understands and agrees that the business of SPSS, among
other things, concerns proprietary computer software programs and related
documentation which will include, after the acquisition contemplated by this
Agreement, the proprietary computer software programs and related documentation
constituting a portion of the Assets. DataStat understands that in the course of
its dealings with SPSS, SPSS and/or its subsidiaries or affiliates may provide
DataStat with, or access to, its software (including, without limitation, source
listings therefor), as well as confidential and/or proprietary prospect and
customer lists, data, research, specifications, memoranda, files, records,
plans, concepts, flow charts, drawings, designs, descriptions, formula tions,
trade secrets and other confidential and/or proprietary information and
property, including but not limited to, information regarding SPSS operations,
businesses, affairs, management and market structure (all of the foregoing
collectively referred to as the "Confidential Property"). Confidential Property
shall not, however, include any information which (i) was publicly known and
made generally available in the public domain prior to the time of disclosure by
the disclosing party; (ii) becomes publicly known and made generally available
after disclosure by the disclosing party to the receiving party through no
action or inaction of the receiving party; (iii) is already in the possession of
the receiving party at the time of disclosure by the disclosing party as shown
by the receiving party's files and records immediately prior to the time of
disclosures; (iv) is obtained by the receiving party from a third party without
a breach of such third party's obligations of confidentiality; (v) is
independently developed by the receiving party without use of or reference to
the disclosing party's Confidential Property, as shown by documents and other
competent evidence in the receiving party's possession; or (vi) is required by
law to be disclosed by the receiving party, provided that the
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receiving party gives the disclosing party prompt written notice of such
requirement prior to such disclosure and assistance in obtaining an order
protecting the information from public disclosure.
4.8.2 DataStat will regard and preserve as confidential and as trade
secrets all of the Confidential Property. Except as may be required by law, any
governmental agency or under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), DataStat will not, directly or indirectly, communicate or
divulge to, or use for the benefit of itself or any other person, firm,
association or corporation, without the prior written consent of SPSS, any
Confidential Property. The Confidential Property shall remain the sole and
exclusive property of SPSS, and upon request by SPSS for any reason whatsoever,
DataStat shall promptly return any and all Confidential Property in its
possession or control to SPSS.
4.8.3 DataStat shall have no right, title or interest of any kind or
nature in any of the Confidential Property or any proceeds therefrom.
4.8.4 DataStat hereby further covenants and agrees that during the Non-
Compete Period (as hereinafter defined) DataStat will not directly or indirectly
(whether through a partnership of which DataStat is a partner or through any
other individual or entity in which DataStat has any interest, legal or
equitable, or otherwise), engage in the software business being acquired by SPSS
pursuant to this Agreement (limited to software for data entry, classification
and coding of open-ended responses in the framework of the survey process (the
"VStat Business")) as in existence or under development on the Closing Date, and
directly or indirectly (whether through a partnership of which DataStat is a
partner or through any other individual or entity in which DataStat has any
interest, legal or equitable, or otherwise) solicit or otherwise be involved
with any customers or clients of SPSS or of the VStat Business existing on the
date of acquisition of the VStat Business by SPSS in any transactions which are
in competition with the VStat Business at any time during the Non-Compete
Period, or directly or indirectly (whether through a partnership of which
DataStat is a partner or through any other individual or entity in which
DataStat has any interest, legal or equitable, or otherwise), assist any person
in the development, programming, servicing, maintenance, manufacture, sale,
licensing, distribution or marketing (including, without limitation, giving away
software) of statistical software and related products in competition with
products of the VStat Business in the United States of America or any other
country in which SPSS or any of its affiliates is doing business.
As used herein, the term "Non-Compete Period" shall mean a period of two
(2) years after the Closing Date.
4.8.5 During the Non-Compete Period, DataStat will not employ, solicit
for employment, or advise or recommend to any other person that they employ or
solicit for employment, any employee of SPSS.
DataStat further agrees that the limitations set forth herein (including,
without limitation, any time or territorial limitations) are reasonable and
properly required for the adequate
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protection of the VStat Business. In the event any such territorial or time
limitation is deemed to be unreasonable by a court of competent jurisdiction,
DataStat agrees to the reduction of the territorial or time limitation to the
area or period which such court shall have deemed reasonable. It is understood
and agreed that the covenants made by DataStat herein relating to
confidentiality shall survive the expiration or termination of this Agreement,
and that the covenants made by DataStat herein relating to non-competition shall
survive the Closing of this Agreement.
4.9 Equitable Relief. DataStat understands that a breach by it of any
provision of this Agreement may cause substantial injury to SPSS which may be
irreparable and/or in amounts difficult or impossible to ascertain, and that in
the event DataStat breaches any provision of this Agreement, SPSS shall have, in
addition to all other remedies available in the event of a breach of this
Agreement, the right to injunctive or other equitable relief. Further, DataStat
acknowledges and agrees that the restrictions and commitments set forth in this
Agreement are necessary to protect the legitimate interests of SPSS and are
reasonable in scope, area and time, and that if, despite this acknowledgment and
agreement, at the time of the enforcement of any provision of this Agreement a
court of competent jurisdiction shall hold that the period or scope of such
provision is unreasonable under the circumstances then existing, the maximum
reasonable period or scope under such circumstances shall be substituted for the
period or scope stated in such provision.
4.10 Verbal Agreements. After Closing, DataStat shall assist SPSS in
obtaining written contracts between SPSS and those customers referenced in
Schedule 2.12 as to which verbal agreements exist.
ARTICLE V
COVENANTS OF SPSS
SPSS covenants as follows:
5.1 Retention of Records. After the Closing, SPSS will retain all of
DataStat's books and records relating to the Assets which come into SPSS's
possession in accordance with SPSS's policies for retention of its own books and
records. SPSS will provide DataStat access to such books and records concerning
periods prior to the Closing in SPSS' possession upon reasonable notice, during
SPSS's regular business hours and at reasonable intervals.
5.2 Further Assurances. After the Closing, SPSS shall from time to time, at
the request of DataStat and without further cost or expense to DataStat, execute
and deliver such other documents and take such other actions as shall be
reasonably necessary or appropriate to consummate fully the transactions
contemplated hereby.
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ARTICLE VI
MUTUAL COVENANTS
Each of the parties hereto covenants as follows:
6.1 Confidentiality. Except as otherwise required by law or judicial or
administrative proceedings, and except for public announcements which, based on
the advice of counsel, are required by law, each of the parties agrees not to
(i) disclose any proprietary or confidential information of any other party, or
the terms of this Agreement (collectively, the "Confidential Information"), to
any individual or entity (other than its directors, officers, employees, agents
and representatives with a need to know such Confidential Information in order
to consummate the transactions contemplated hereby) or (ii) use any Confidential
Information for any purpose other than consummating the transactions
contemplated hereby and, with respect to SPSS, utilizing the Assets and
discharging the Assumed Liabilities after the Closing.
6.2 Cooperation. The parties agree to cooperate for all other reasonable
purposes after the Closing, including with respect to any audit by any taxing
authority of any of the income tax or other tax returns of DataStat.
ARTICLE VII
CONDITIONS TO OBLIGATIONS OF DATASTAT
The obligation of DataStat to consummate the transactions contemplated
hereby is subject to the satisfaction on or prior to the Closing Date of the
following conditions:
7.1 Representations and Warranties. The representations and warranties of
SPSS shall be true and accurate on and as of the Closing Date with the same
effect as though such representations and warranties had been made on and as of
such date.
7.2 Performance. SPSS shall have performed in all material respects all
covenants and agreements required by this Agreement to be performed by it on or
before the Closing Date (including, without limitation, the closing deliveries
required by Article IX hereof).
7.3 Filings; Consents; Waiting Periods. All registrations, filings,
applications, notices, transfers, consents, approvals, orders, qualifications,
waivers and other actions shall have been made or obtained and all applicable
waiting periods shall have expired or been terminated.
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7.4 No Injunction. At the Closing Date, there shall be no injunction,
restraining order or decree of any nature of any court or governmental body in
effect which restricts or prohibits the consummation of the transactions
contemplated by this Agreement.
ARTICLE VIII
CONDITIONS TO OBLIGATIONS OF SPSS
The obligation of SPSS to consummate the transactions contemplated hereby
is subject to the satisfaction on or prior to the Closing Date of the following
conditions:
8.1 Representations and Warranties. The representations and warranties of
DataStat shall be true and accurate on and as of the Closing Date with the same
effect as though such representations and warranties had been made on and as of
such date.
8.2 Performance. DataStat shall have performed in all material respects all
covenants and agreements required by this Agreement to be performed by it on or
before the Closing Date (including, without limitation, the closing deliveries
required by Article IX hereof).
8.3 Filings; Consents; Waiting Periods. All registrations, filings,
applications, notices, transfers, consents, approvals, orders, qualifications,
waivers and other actions of any kind required of any persons or governmental
authorities or private agencies in connection with the consummation of the
transactions contemplated by, and the performance by DataStat of its obliga-
tions under, this Agreement shall have been made or obtained and all applicable
waiting periods shall have expired or been terminated, in each case upon terms
and conditions reasonably satisfactory to SPSS.
8.4 No Litigation. No action, suit or proceeding shall have been instituted
by any person or entity, or threatened by any governmental agency or body,
before a court or governmental body, to restrain or prevent the consummation of
the transactions contemplated by, or the performance by DataStat of its
obligations under, this Agreement or which seeks other relief with respect to
any of such transactions or which could reasonably be expected to have a
materially adverse effect on the VStat business of DataStat. At the Closing
Date, there shall be no injunction, restraining order or decree of any nature of
any court or governmental agency or body in effect which restrains or prohibits
the consummation of the transactions contemplated by this Agreement.
8.5 Legal Opinion. SPSS shall have received the written opinion, dated the
Closing Date, of counsel to DataStat, substantially in the form attached hereto
as Exhibit A.
8.6 Due Diligence Investigation. SPSS shall have completed a due diligence
investigation of the VStat business of DataStat, the results of which shall have
been satisfactory to SPSS in its sole discretion.
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8.7 Good Standing Certificates. DataStat shall cause to be delivered to
SPSS on December 24, 1999 evidence of the corporate existence and good standing
of DataStat.
8.8 Lien Terminations. If applicable, DataStat shall deliver to SPSS
termination statements or releases executed by a duly authorized representative
of each of any creditor which has a lien or encumbrance on any of the Assets, in
good form for filing, terminating or releasing all liens and encumbrances on the
Assets.
8.9 Delivery. At the Closing, the documents referenced in Article IX shall
be delivered to SPSS.
ARTICLE IX
CLOSING DELIVERIES
The following deliveries shall be made at the Closing:
9.1 Legal Opinion. DataStat shall cause to be delivered the written legal
opinion referred to in Section 8.5 hereof.
9.2 Consents. DataStat shall deliver to SPSS all consents and approvals
required in connection with the performance by DataStat of its obligations under
this Agreement and the consummation by DataStat of the transactions contemplated
hereby and thereby.
9.3 Closing Certificates. DataStat shall deliver, or cause to be delivered,
to SPSS such closing certificates and documents as SPSS and its counsel shall
reasonably request.
9.4 Instruments of Transfer. DataStat shall deliver the following bills of
sale and other instruments of conveyance, evidencing the transfer and assignment
of the Assets, in a form reasonably satisfactory to SPSS and its counsel:
(a) Bills of sale for all tangible personal property included in the
Assets;
(b) All certificates, and other material permits, licenses, approvals or
authorizations relating to VStat issued by any governmental authority that are
assignable; all Assets comprising intangible property; and all Contracts
included in the Assets that are assignable;
(c) Landlord consents, if any, required from landlords and/or sublandlords
with respect to the assignments referred to in subparagraph (b) above;
(d) Documents satisfactory to assign copyrights and trademarks relating to
VStat owned by DataStat to SPSS, such documents to be in recordable form;
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(e) Such other instruments of conveyance, transfer and assignment as may be
reasonably required to vest in SPSS all of DataStat's right, title and interest
in and to the Assets.
9.5 Charter; Good Standing Certificates. DataStat shall cause to be
delivered to SPSS DataStat's Certificates of Incorporation, as amended to the
Closing Date, certified by the proper Luxembourg authorities and evidence of
good standing as set forth in Section 8.8 hereof.
9.6 Further Assurances. Each party shall deliver, or cause to be delivered,
all other documents required to be delivered at the Closing by the other party,
including without limitation the documents listed as the responsibility of such
party pursuant to the closing memorandum prepared in connection with the closing
of the transactions contemplated by this Agreement, and shall take all other
actions which the other parties may reasonably determine necessary or
appropriate in order to consummate fully the transactions contemplated hereby.
ARTICLE X
SURVIVAL AND INDEMNIFICATION
10.1 Survival of Representations and Warranties; Covenants. All
representations and warranties contained herein or made in writing by any party
in connection herewith shall survive the Closing for a period of two (2) years,
regardless of any investigation made by or on behalf of any party, except for
the representations and warranties contained in Section 2.27, which shall
survive indefinitely, and the representations and warranties contained in
Sections 2.10, 2.12, 2.23 and 2.24, or a representation or warranty which shall
prove to be untrue due to the fraud of DataStat, which in each case shall
survive until the expiration of the applicable statute of limitations with
respect to the subject matter thereof. All covenants contained herein shall
survive until performed fully.
10.2 Indemnification by DataStat. (a) DataStat agrees to indemnify and hold
SPSS and its affiliates and the respective officers, directors, employees,
agents and representatives of each of the foregoing (collectively, the
"Representatives") harmless from and against any and all costs, expenses,
losses, claims, damages, penalties, fines, liabilities and obligations whenever
arising or incurred (including, without limitation, amounts paid in settlement,
costs of investigation and attorneys' fees and expenses) (individually, a
"Loss," and collectively, "Losses") arising out of or relating to (i) any breach
of any representation or warranty set forth herein or in any related schedule,
or set forth in any closing certificate or other document entered into or
delivered in connection with this Agreement; (ii) any failure of title to, or
any liabilities, liens, security interests, mortgages, pledges, claims,
judgments, exceptions, reservations, charges, encumbrances or obligations on or
with respect to any of the Assets; (iii) any breach of any covenant or
obligation of DataStat contained in this Agreement, or set forth in any closing
certificate or other document entered into or delivered in connection with this
Agreement; (iv) any liabilities under any applicable bulk sales or transfer law;
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(v) any tax liability as a result of the acquisition of Assets and related
transactions hereunder; (vii) any fraudulent representation or intentional
misrepresentation on the part of DataStat; (viii) any failure to disclose under
this Agreement any material fact concerning DataStat known to DataStat; (vii)
any intentional or fraudulent breach by DataStat of any warranty,
representation, agreement, covenant or obligation made under this Agreement;
(ix) any material misrepresentation contained in, or material omission from, any
provisions of this Agreement or instruments furnished or to be furnished
hereunder; (x) any suit, action or investigation pending or threatened against
or affecting the Assets; (xi) any claim or cause of action by any minority
shareholder or employee of DataStat arising out of or related to any act or
omission of DataStat prior to the Closing or the transactions contemplated
hereby; and (xii) any tax liability or obligation asserted against SPSS and
arising out of or related to tax periods ending on or prior to the Closing Date
or DataStat's actions or omissions.
(b) Without limitation as to indemnification set forth in subparagraph (a)
hereof, DataStat agrees to defend, indemnify and hold SPSS and its affiliates
and the Representatives harmless from and against any and all claims and causes
of action by any third party, known or unknown, that arise out of or are related
to an actual or alleged infringement of any other person's intellectual property
rights by DataStat's software products or documentation, the Intellectual
Property or any action or omission by DataStat. SPSS shall cooperate in such
defense, at DataStat's sole cost and expense.
10.3 Undisclosed Liabilities. In the case of any undisclosed liability of
the DataStat, as described in Section 2.6 of this Agreement, that liability,
including any and all costs or expenses related thereto, is not assumed by SPSS
(although SPSS may treat such liability as a claim under Section 10.2 hereof, if
a claim with respect to such liability is also made against SPSS) and shall not
be paid by SPSS, unless SPSS is required under applicable law, or a court order
or decree, to make a payment in respect of such undisclosed liability. SPSS
shall give prompt written notice to DataStat of any such undisclosed liability,
when and to the extent it has actual knowledge of that liability, and DataStat
shall be solely responsible for the satisfaction of the liability.
10.4 Indemnification Procedure. (a) An indemnified party under Section 10.2
of this Agreement shall give prompt written notice to DataStat (when and to the
extent that the indemnified party has actual knowledge thereof) of any
condition, event or occurrence or the commencement of any action, suit or
proceeding for which indemnification may be sought, and DataStat, through
counsel reasonably satisfactory to the indemnified party, shall assume the
defense thereof or other indemnification obligation with respect thereto;
provided, however, that any indemnified party shall be entitled to participate
in any such action, suit or proceeding with counsel of its own choice but at its
own expense; and provided, further, that any indemnified party shall be entitled
to participate in any such action, suit or proceeding with counsel of its own
choice at the expense of DataStat, if, under applicable canons of ethics, joint
representation of DataStat and SPSS presents a conflict of interest. In any
event, if DataStat fails to assume the defense within a reasonable time, the
indemnified party may assume such defense or other indemnification obligation
and the reasonable fees and expenses of its attorneys will be covered by the
indemnity provided for hereunder. No action, suit or proceeding for which
indemnification may be sought shall be
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compromised or settled in any manner which might adversely affect the interests
of DataStat without the prior written consent of DataStat (which shall not be
unreasonably withheld); provided, however, that SPSS may settle any claim or
cause of action without DataStat's consent, but in such case DataStat shall not
be required to reimburse SPSS for its Losses. Notwithstanding anything in this
Section 10.4 to the contrary, DataStat shall not, without the prior written
consent of the indemnified party, (i) settle or compromise any action, suit or
proceeding or consent to the entry of any judgment which does not include as an
unconditional term thereof the delivery by the claimant or plaintiff to the
indemnified party of a written release from all liability in respect of such
action, suit or proceeding or (ii) settle or compromise any action, suit or
proceeding in any manner that may materially and adversely affect the
indemnified party other than as a result of money damages or other money
payments. DataStat shall pay all expenses, including attorneys' fees, that may
be incurred by any indemnified party in enforcing the indemnity provided for
hereunder.
10.5 Indemnification by SPSS. SPSS agrees to indemnify and hold DataStat
and its affiliates and the respective officers, directors, employees, agents and
representatives of each of the foregoing harmless from and against any and all
Losses relating to (i) any and all of the Assumed Liabilities, except to the
extent that the Losses relate to a period prior to the Closing Date; (ii) any
breach of any representation or warranty of SPSS set forth in Article III hereof
or any related schedule, or set forth in any closing certificate or other
document entered into or delivered by SPSS in connection with this Agreement;
(iii) any breach of any covenant or obligation of SPSS contained in this
Agreement or in any other closing document; (iv) any fraudulent representation
or intentional misrepresentation on the part of SPSS; (v) any intentional or
fraudulent breach by SPSS, of any warranty, representation, agreement, covenant
or obligation made under this Agreement; (vi) any material misrepresentation
contained in, or material omission from, any provisions of this Agreement or
instruments furnished or to be furnished hereunder; and (vii) any liability or
obligation arising out of or related to the Assumed Liabilities after the
Closing Date or the use of the Assets after the Closing Date, unless the claim
or cause of action with respect thereto arises out of or is related to actions
or omissions of DataStat prior to the Closing Date.
10.6 Indemnification Procedure. (a) An indemnified party under Section 10.5
of this Agreement shall give prompt written notice to SPSS (when and to the
extent that the indemnified party has actual knowledge thereof) of any
condition, event or occurrence or the commencement of any action, suit or
proceeding for which indemnification may be sought, and SPSS, through counsel
reasonably satisfactory to the indemnified party, shall assume the defense
thereof or other indemnification obligation with respect thereto; provided,
however, that any indemnified party shall be entitled to participate in any such
action, suit or proceeding with counsel of its own choice but at its own
expense. In any event, if SPSS fails to assume the defense within a reasonable
time, the indemnified party may assume such defense or other indemnification
obligation and the reasonable fees and expenses of its attorneys will be covered
by the indemnity provided for in Section 10.5. No action, suit or proceeding for
which indemnification may be sought shall be compromised or settled in any
manner which might adversely affect the interests of SPSS without the prior
written consent of SPSS (which shall not be unreasonably withheld).
Notwithstanding anything in this Section 10.6 to the contrary, SPSS shall not,
without the prior
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written consent of the indemnified party, (i) settle or compromise any action,
suit or proceeding or consent to the entry of any judgment which does not
include as an unconditional term thereof the delivery by the claimant or
plaintiff to the indemnified party of a written release from all liability in
respect of such action, suit or proceeding or (ii) settle or compromise any
action, suit or proceeding in any manner that may materially and adversely
affect the indemnified party other than as a result of money damages or other
money payments. SPSS shall pay all expenses, including attorneys' fees, that may
be incurred by any indemnified party in enforcing the indemnity provided for in
Section 10.5.
10.7 Offset Against Unpaid Amounts. Without limiting such other rights as
SPSS may have and subject to the survival period of the representation and
warranties contained in Section 10.1, if, prior to the time that any payment of
the Purchase Price is to be delivered, SPSS has learned of a breach of any
representation, warranty, covenant or agreement of DataStat contained in this
Agreement, SPSS in its sole discretion may by written notice deduct from the
amount of such payment otherwise owed an amount equal to the aggregate of (a)
the amount necessary to cure or make it whole for such breach or (b) the amount
of losses, damages and expenses incurred or demonstrably in prospect of being
incurred in connection with or caused by such breach.
ARTICLE XI
MISCELLANEOUS
11.1 Amendment and Modification. Subject to applicable law, this Agreement
may be amended, modified and supplemented by written agreement of the parties.
11.2 Waiver of Compliance. Any failure of DataStat, on the one hand, or
SPSS, on the other, to comply with any obligation herein may be expressly waived
hereunder, but such waiver shall not operate as a waiver of, or estoppel with
respect to, any subsequent or other failure. Any waiver must be in writing and
duly executed by the appropriate parties.
11.3 Expenses. Whether or not the transactions contemplated by this
Agreement shall be consummated, the parties hereto agree that all fees and
expenses incurred by DataStat, on the one hand, and SPSS, on the other, in
connection with this Agreement, and the transactions and other actions
contemplated thereby or taken in connection therewith, shall be borne by
DataStat, and by SPSS, respectively, including, without limitation, all fees of
counsel and accountants.
11.4 Notices. All notices, requests, demands and other communications
required or permitted hereunder shall be in writing and shall be deemed to have
been duly given when delivered by hand or by facsimile transmission (receipt
confirmed), one day after being sent by recognized overnight courier or delivery
service, freight prepaid, or five days after being mailed, certified or
registered mail, postage prepaid, return receipt requested:
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(a) If to DataStat to:
DataStat, S.A.
Rate d'Arlon 81
8083 Capellen
Luxembourg
Attention: Nicolas Poncelet
Telephone: +32-75-41-04-31
Facsimile: +32-27-36-65-49
with a copy to:
Nauta Dutilh
Chaussee de la Hulpe, 177/6
1170 Brussels
Belgium
Attention: Mr. Benoit Strowel
Telephone: +32-2-673-00-07
Facsimile: +32-2-672-28-54
or to such other person or address as DataStat shall furnish to SPSS in writing
by notice given in the manner set forth in (a) above.
(b) If to SPSS, to:
SPSS Inc.
233 South Wacker Drive
11th Floor
Chicago, Illinois 60606
Attention: Mr. Edward Hamburg
Telephone: (312) 329-3528
Facsimile: (312) 329-3558
with a copy to:
Ross & Hardies
150 North Michigan Avenue, Suite 2500
Chicago, Illinois 60601
Attention: Lawrence R. Samuels, Esq.
Telephone: (312) 558-1000
Facsimile: (312) 750-8600
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or to such other person or address as SPSS shall furnish to DataStat in writing
by notice given in the manner set forth above.
11.5 Assignment. This Agreement and all of the provisions hereof shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns, but neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by any of the
parties hereto without the prior written consent of the other parties, except by
operation of law and except that the parties may assign their rights and
obligations under this Agreement to any other entity wholly owned by them. If
such assignment shall be made, the assignee shall be entitled to all of the
rights and shall assume all of the obligations of either respective party
hereunder, provided, that the assignor shall remain liable for and guarantee the
performance of such entity's obligations under this Agreement.
11.6 Publicity. Neither DataStat nor SPSS shall make or issue, or cause to
be made or issued, any announcement or written statement concerning this
Agreement or the trans actions contemplated hereby for dissemination to the
general public, without the prior written consent of the other party. This
provision shall not apply, however, to any announcement or written statement
required to be made by law, the regulations of any federal or state governmental
agency or any stock exchange, except that the party required to make such
announcement shall, whenever practicable, consult with the other party
concerning the timing and content of such announcement before such announcement
is made.
11.7 Headings. The Article and Section headings contained in this Agreement
are inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
11.8 Severability. If any provision of this Agreement shall be determined
to be contrary to law and unenforceable by any court of law, the remaining
provisions shall be severable and enforceable in accordance with their terms.
11.9 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Illinois, without regard to its
conflicts of law doctrine. The parties hereto expressly submit themselves to the
non-exclusive jurisdictions of the State and Federal Courts of Illinois for the
resolution of any disputes which may arise under or with respect to compliance
with this Agreement.
11.10 Counterparts. This Agreement may be executed simultaneously in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
11.11 Third Parties. Nothing herein shall be construed to confer upon or
give to any party other than the parties hereto and their successors or
permitted assigns, any rights or remedies under or by reason of this Agreement.
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11.12 Employment Agreement. SPSS and Serge Luyens shall enter into an
employment agreement in a mutually acceptable form no later than January 1,
2000.
11.13 Entire Agreement. This Agreement, including the Exhibits and
Schedules hereto, sets forth the entire agreement and understanding of the
parties hereto in respect of the subject matter contained herein, and supersedes
all prior agreements, covenants, representations or warranties, whether oral or
written, by any party hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, all as of the day and year first written above.
SPSS INC., a Delaware corporation
By:_______________________________________________
Name: Edward Hamburg
Title: Executive Vice President, Corporate
Operations, Chief Financial Officer
and Secretary
DATASTAT, S.A., a corporation organized
under the laws of Luxembourg
By:_______________________________________________
Name: Nicolas Poncelet
Title: Director and President of Board
By:_______________________________________________
Name: Christophe Poncelet
Title: Director