Asset Purchase Agreement - Wonderware Corp. and SPSS Inc.
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ASSET PURCHASE AGREEMENT
BY AND BETWEEN
WONDERWARE CORPORATION
AS THE PURCHASER,
ON THE ONE HAND,
AND
SPSS INC.,
AS THE SELLER,
ON THE OTHER HAND
DATED: MAY 11, 2000
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TABLE OF CONTENTS
ARTICLE I - SALE AND PURCHASE OF ASSETS...........................................................................5
1.1 Assets..........................................................................................5
1.1.1 Intellectual Property.................................................................5
1.1.2 Tangible Assets.......................................................................6
1.1.3 Inventory.............................................................................6
1.1.4 Production and Promotional Assets.....................................................6
1.1.5 Assigned Contracts....................................................................6
1.1.6 Books and Records.....................................................................6
1.1.7 Goodwill..............................................................................6
1.2 Exclusions......................................................................................7
1.2.1 Excluded Liabilities..................................................................7
1.2.2 Excluded Contracts....................................................................8
1.3 Closing and Effective Date......................................................................8
1.3.1 Time and Place........................................................................8
1.3.2 Transfer..............................................................................8
1.4 Allocation of Purchase Price....................................................................9
1.5 Purchase Price..................................................................................9
ARTICLE II - REPRESENTATIONS AND WARRANTIES OF SELLER.............................................................9
2.1 Existence and Rights............................................................................9
2.2 Agreement Authorized............................................................................9
2.3 No Conflict....................................................................................10
2.4 Title..........................................................................................10
2.5 Financial Matters..............................................................................10
2.5.1 Financial Condition..................................................................10
2.5.2 No Undisclosed Liabilities...........................................................10
2.6 No Subsequent Changes..........................................................................10
2.7 Inventory......................................................................................11
2.8 Product Liability..............................................................................11
2.9 Intellectual Property..........................................................................11
2.9.1 Licenses.............................................................................11
2.9.2 Copyrights...........................................................................12
2.9.3 Trademarks...........................................................................12
2.9.4 Non-Infringement and Litigation......................................................12
2.10 Assigned Contracts.............................................................................12
2.11 Litigation.....................................................................................12
2.12 Compliance with Laws...........................................................................12
2.13 Assets.........................................................................................13
2.14 No Other Acquisition Agreement.................................................................13
2.15 Commissions....................................................................................13
2.16 Accuracy of Information Furnished..............................................................13
2.17 Permits and Consents...........................................................................13
2.18 Termination or Release of Security Interests...................................................13
2.19 Termination or Release of Affiliate Agreements.................................................13
2.20 Condition of Products..........................................................................13
2.21 Y2K Compliance.................................................................................14
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ARTICLE III - REPRESENTATIONS AND WARRANTIES OF WONDERWARE.......................................................14
3.1 Existence and Rights...........................................................................14
3.2 Agreement Authorized...........................................................................14
3.3 No Conflict....................................................................................14
3.4 Commissions....................................................................................14
3.5 Permits........................................................................................15
3.6 Accuracy of Information Furnished..............................................................15
ARTICLE IV - COVENANTS OF SELLER.................................................................................15
4.1 Assignment of Assigned Agreements..............................................................15
4.2 Transfer, Assignment and Registration of Intellectual Property.................................15
4.3 Transfer of Business Relationships.............................................................15
4.4 Technical Support; Warranties; Product Returns.................................................15
4.4.1 Obligation to Provide Technical Support..............................................16
4.4.2 Standards of Technical Support Provided..............................................16
4.4.3 Indemnification for Claims Arising From Technical Support............................16
4.4.4 Division of Support Revenue..........................................................17
4.4.5 Product Returns......................................................................17
4.5 QI Analyst Products Knowledge Transfer.........................................................17
4.6 Technical Support Knowledge Transfer...........................................................17
4.7 Statistical Consulting.........................................................................17
4.8 Sales or Use Taxes.............................................................................18
4.9 Non-Competition................................................................................18
ARTICLE V - COVENANTS OF WONDERWARE..............................................................................18
5.1 Access to Books and Records After Closing Date.................................................18
ARTICLE VI - INDEMNIFICATION.....................................................................................18
6.1 Indemnification................................................................................18
6.2 Procedure for Indemnification..................................................................19
ARTICLE VII - CONDITIONS PRECEDENT...............................................................................20
7.1 Conditions to Each Party's Obligation..........................................................20
7.1.1 No Injunctions; Orders...............................................................20
7.1.2 Approvals............................................................................20
7.1.3 No Litigation........................................................................20
7.2 Conditions to Seller's Obligations.............................................................20
7.2.1 Representations and Warranties True..................................................20
7.2.2 Performance..........................................................................21
7.3 Conditions to Wonderware's Obligations.........................................................21
7.3.1 Representations and Warranties True..................................................21
7.3.2 Performance..........................................................................21
7.3.3 Employment Agreements with Seller's Personnel........................................21
7.3.4 Provision of Materials for Product Due Diligence.....................................21
7.3.5 Completion of Product Due Diligence..................................................21
7.3.6 Provision of Technical Support Call Logs.............................................21
7.4 Effect of Consummation of the Closing..........................................................21
ARTICLE VIII - TERMINATION, AMENDMENT AND WAIVER.................................................................22
8.1 Grounds for Termination........................................................................22
8.1.1 Mutual Consent.......................................................................22
8.1.2 Breach of Warranties or Covenants; Misrepresentation.................................22
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8.1.3 Expiration Date......................................................................22
8.1.4 Illegality...........................................................................22
8.1.5 Government Action....................................................................22
8.2 Effect of Termination..........................................................................22
8.3 Waiver.........................................................................................22
ARTICLE IX - MISCELLANEOUS.......................................................................................23
9.1 Announcements..................................................................................23
9.2 Cooperation....................................................................................23
9.3 Complete Agreement: Modifications..............................................................23
9.4 Expenses.......................................................................................23
9.5 Remedies Not Exclusive: No Termination.........................................................23
9.6 Notices........................................................................................23
9.7 Third-Party Benefits...........................................................................24
9.8 Governing Law..................................................................................24
9.9 Dispute Resolution and Arbitration.............................................................24
9.9.1 Negotiation Between Executives.......................................................24
9.9.2 Arbitration..........................................................................25
9.10 Waivers Strictly Construed.....................................................................25
9.11 Illegality.....................................................................................25
9.12 Successors and Assigns.........................................................................25
9.13 Rules of Construction..........................................................................25
9.13.1 Headings.............................................................................25
9.13.2 Tense and Case.......................................................................25
9.13.3 Severability.........................................................................26
9.13.4 Agreement Negotiated.................................................................26
9.14 Counterparts...................................................................................26
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ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT (the "Agreement"), is made and entered
into as of the 11th day of May, 2000 (the "Effective Date"), by and between
Wonderware Corporation, a Delaware corporation ("Wonderware"), on the one hand,
and SPSS Inc., a Delaware corporation ("Seller"), on the other hand.
R E C I T A L S
A. Seller has a line of products known as, and referred to herein, as
the "QI Analyst Product" or "QI Analyst Products", all as more particularly
described on the attached Exhibit A. Seller's business with respect to the QI
Analyst Products, involves the development, marketing, selling and servicing of
such QI Analyst Products, and said business, insofar as it relates to the QI
Analyst Products, will be herein referred to as the "QI Analyst Business."
B. Wonderware desires to buy, through the payment of cash and certain
other consideration set forth herein, and Seller desires to sell, substantially
all of the Assets (as that term is defined below) of the QI Analyst Business,
all on the terms and conditions set forth herein.
C. In conjunction with the transactions contemplated hereby, Seller has
agreed that Wonderware may hire Richard Marcell and James Cheever from Seller's
staff without payment or other consideration to Seller.
D. In conjunction with the transactions contemplated hereby, Seller has
agreed to provide, at no additional cost, certain QI Analyst Product related
training and resources to Wonderware all as more particularly described herein.
A G R E E M E N T
NOW, THEREFORE, based on the above premises and in consideration of the
mutual covenants and agreements contained herein, the parties agree as follows:
ARTICLE I
SALE AND PURCHASE OF ASSETS
1.1 Assets. On the terms and subject to the conditions of this Agreement, on the
Closing Date, Seller agrees to sell to Wonderware, and Wonderware agrees to
purchase from Seller, the following assets (collectively, the "Assets"), free
and clear of any and all liens, charges, security interests, options, claims or
other encumbrances of any nature whatsoever ("Liens and Encumbrances").
1.1.1 Intellectual Property. All right, title and interest in
and to all of the intellectual property of every nature whatsoever related
solely to the QI Analyst Products or QI Analyst Business, including without
limitation the following: (i) the object code and source code (in machine and
human readable forms) of all computer programs, data bases and other software
solely relating to or constituting a part of the QI Analyst Products (including,
but not limited to
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the software known as "QI Analyst Gage R&R"), (ii) all registered and
unregistered copyrights related to the QI Analyst Products, (iii) all rights in
and to the trade name and trade mark "QI Analyst" and all derivations thereof,
(iv) all other patents, trademarks, trade names, service marks and copyrights
(whether registered or unregistered) relating solely to or used solely in
connection with the QI Analyst Products or Business, (v) all registrations and
applications therefor, (vi) all research, notes, diagrams, flowcharts,
inventions, know-how, processes, ideas, trade secrets and other research and
development relating solely to the QI Analyst Products or QI Analyst Business or
any future versions thereof, (vii) all Seller's customer, technical support and
prospect lists and databases relating solely to the QI Analyst Products or QI
Analyst Business, (viii) all technical, marketing, promotional and other
information and documentation relating to the QI Analyst Products or QI Analyst
Business, (ix) all goodwill, if any, appurtenant to the foregoing, and (x) all
post-Closing rights, claims or choses in action relating to or deriving from any
of the foregoing (collectively, the "Intellectual Property"). Without limiting
the foregoing the Intellectual Property is further described on Exhibit A and
Schedules 1.1.4, 2.10.2 and 2.10.3 attached hereto;
1.1.2 Tangible Assets. All computer equipment used in the
development of the QI Analyst Products listed on Schedule 1.1.2 attached hereto
(the "Tangible Assets");
1.1.3 Inventory. All inventories of Seller of every nature
whatsoever, related solely to the QI Analyst Products including, without
limitation, all instruction manuals and other materials related thereto on all
media; all finished materials, work-in-process and raw materials, packaging
materials and miscellaneous supplies of Seller related solely to the QI Analyst
Products of every nature whatsoever and wherever located, including without
limitation at warehouses, depositories, printers or any of Seller's facilities
(the "Inventory") including but not limited to the Inventory Assets listed on
Schedule 1.1.3 attached hereto;
1.1.4 Production and Promotional Assets. All development,
production, sales, marketing, advertising and promotional materials of Seller of
every nature whatsoever relating solely to the QI Analyst Products, whether pre-
or post-production or publication, including without limitation: (i) license
agreements for computer software used solely in connection with the QI Analyst
Business and loaded on any of the tangible assets that are included in this
transaction, and (ii) text, manuscripts, catalogues, artwork, photographs,
transparencies, recording masters, reproduction (or gold) master disks, and
digitized masters principally committed to the QI Analyst Products, (the
"Production Assets"), including without limitation those Assets listed on
Schedule 1.1.4 attached hereto;
1.1.5 Assigned Contracts. Except for any Excluded Liabilities
(as defined in Section 1.2.2 hereof) all Seller's right, title and interest in
and to those specific contracts (the "Assigned Contracts"), set forth on
Schedule 1.1.5 hereto;
1.1.6 Books and Records. Subject to Section 5.1 below, all
books and records, files, documents, papers and agreements (including, without
limitation, information relating to technical support, customers, manufacturers,
contractors, suppliers and vendors) pertaining solely to the Assets (the "Books
and Records"); and
1.1.7 Goodwill. All goodwill of Seller, in any, related solely
to the QI Analyst Products or QI Analyst Business.
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1.2 Exclusions.
1.2.1 Excluded Liabilities. Except as specifically set forth
in this Agreement, Wonderware does not assume or accept any of Seller's
liabilities. Without limiting the generality of the foregoing, Wonderware shall
not assume or accept any of the following liabilities (the "Excluded
Liabilities"):
(a) for taxes, whether federal, state, local or
foreign or assessments of any kind, including interest, additions to
tax or penalties applicable thereto with respect to the operation of
the QI Analyst Business prior to the Closing Date;
(b) arising out of any transactions between Seller
and any employee or shareholder of Seller, or any person or entity
affiliated with such employee or shareholder (except to the extent it
is an Assigned Contract);
(c) arising out of any performance, nonperformance or
improper performance of the Assigned Contracts prior to the Closing
Date, including any royalties and commissions payable on sales made
prior to the Closing Date;
(d) for warranty claims made after the Closing Date
for service, repair, replacement and similar work with respect to
Assets sold, licensed or leased or services provided prior to the
Closing Date;
(e) for product liabilities arising with respect to
Assets sold, licensed or leased or services provided prior to the
Closing Date, whether arising in tort or in contract including, without
limitation, claims based on defective products, claims for product
support, and any claims based on any warranty or guaranty, whether
express or implied;
(f) arising out of any alleged damage to the
environment or any liability for environmental cleanup costs arising
out of occurrences, circumstances or actions commencing or in existence
prior to the Closing Date;
(g) for any judicial or administrative action, suit,
proceeding or investigation, pending or threatened on, or based on
events occurring prior to, the Closing Date, relating to Seller, its
shareholders or the Assets;
(h) for noncompliance with or violations of any law,
rule, regulation, statute, ordinance, permit, judgment, injunction,
order, decree, license or other governmental authorization or approval
prior to the Closing Date applicable to Seller, the QI Analyst Business
or the Assets;
(i) for any agreements, contracts or arrangements
entered into prior to the Closing Date with Seller's employees (except
to the extent any such agreement is an Assigned Contract);
(j) arising out of or related to any Excluded
Contracts either before or after the Closing Date, except as
specifically set forth herein;
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(k) for any notes payable or other obligations of
Seller occurring prior to the Closing Date (except to the extent any
such note or other obligation is an Assigned Contract); and
(l) for any trade liabilities of Seller (except to
the extent any such trade liability is an Assigned Contract).
1.2.2 Excluded Contracts. For purposes of this Agreement, the
term "Excluded Contracts" shall be those contracts, agreements, leases and
licenses that are not Assigned Contracts pursuant to Section 1.1.5 above. To the
extent related solely to the QI Analyst Business, Seller shall use its
commercially reasonable efforts to terminate or give notice of termination
regarding each Excluded Contract on or before the Closing Date.
1.3 Closing and Effective Date.
1.3.1 Time and Place. The closing of the transactions (the
"Transactions") contemplated under this Agreement (the "Closing") shall take
place simultaneously at the principal offices of Wonderware, 100 Technology,
Irvine, CA 91618 and at the offices of Seller, 233 South Wacker Drive, 11th
Floor, Chicago, IL 60606, as provided herein. The Transactions shall be
consummated on May 31, 2000, or as soon thereafter as the conditions to closing
set forth in Article VII below are satisfied or waived (the "Closing Date").
1.3.2 Transfer.
(a) Purchase Price and Assets. At the Closing,
simultaneously with the delivery by Wonderware of the Purchase Price
(as defined in, and in accordance with the provisions of Section 1.5),
Seller shall deliver and transfer to Wonderware the Assets, free and
clear of any and all Liens and Encumbrances.
(b) Seller Deliveries. In addition to that set forth
in Section 1.3.2(a), at the Closing, Seller shall execute and deliver
to Wonderware (i) a Bill of Sale in the form attached hereto as Exhibit
B, (ii) an Assignment and Assumption Agreement in the form attached
hereto as Exhibit C, (iii) an executed officer's certificate from
Seller in the form attached hereto as Exhibit D-1, (iv) mutually
acceptable software license agreements for the software known as
Gencode.exe, Gencodew.exe and Helptag.dot, executed by an authorized
representative of Seller, and in the form attached hereto as Exhibit E,
(v) a good standing certificate from the State of Delaware with respect
to Seller and dated within ten (10) days prior to the Closing Date, and
(vii) such other bills of sale, instruments of assignment and other
appropriate documents as may be reasonably requested by Wonderware and
agreed to by Seller in order to carry out the Transactions.
(c) Wonderware Deliveries. In addition to that set
forth in Section 1.3.2(a), at the Closing, Wonderware shall execute and
deliver to Seller (i) an Assignment and Assumption Agreement in the
form attached hereto as Exhibit C, (ii) an executed officer's
certificate in the form attached hereto as Exhibit D-2 and (iii) such
other documents as may be reasonably requested by Seller in order to
carry out the Transactions.
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1.4 Allocation of Purchase Price. Wonderware and Seller agree that the Purchase
Price shall be allocated among the Purchased Assets in accordance with the
allocation set forth in Schedule 1.4 hereto. Wonderware and Seller agree that
each will report the federal, state and local income and other tax consequences
of the purchase and sale contemplated hereby in a manner consistent with such
allocation and that neither will take any position inconsistent therewith upon
examination of any tax return, in any refund claim, in any litigation, or
otherwise.
1.5 Purchase Price. The purchase price (the "Purchase Price") for the sale by
Seller to Wonderware of the Assets is Two Million Dollars ($2,000,000.00).
Wonderware shall pay Seller the Purchase Price as follows:
(a) One Million Seven Hundred Thousand Dollars
($1,700,000.00) shall be delivered on the Closing Date by cashiers
check, wire transfer or other method resulting in immediately available
funds;
(b) An amount equal to (i) Three Hundred Thousand
Dollars ($300,000.00) (the "Holdback Amount"); less (ii) any amount
deducted therefrom in satisfaction of Seller's obligations to pay for
warranty and repair claims under Section 4.1, indemnity claims under
Section 6.1, or otherwise to reimburse Wonderware for any breach of
Seller's obligations or representations or warranties hereunder shall
be paid by Wonderware to Seller on the date that is six (6) months
after the Closing.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLER
For purposes of this Article II, the phrase "Materially Adverse" means,
with respect to any event, circumstance, inaccuracy, error, obligation, breach,
default, liability, loss, damage or amount ("Breaches"), that such Breaches
individually or in the aggregate have had, or in the future could reasonably be
expected to have (assuming that the QI Analyst Business is conducted as
presently conducted), a material adverse impact on the financial condition,
results of operations, properties, assets, liabilities or businesses of the QI
Analyst Business. Seller represents and warrants that each of the following
statements is true and correct as of the date hereof, and will be true and
correct as of the Closing Date, except as expressly set forth in the Disclosure
Schedule attached hereto as Schedule 2, specifying by number the representation
qualified, provided that any specific disclosure made with reference to one or
more sections below shall be deemed disclosed with respect to each other section
as to which such disclosure is relevant provided that such relevance is clearly
apparent:
2.1 Existence and Rights. Seller (i) is a corporation duly organized and validly
existing in good standing under the laws of the State of Delaware and (ii) has
the corporate power and authority, licenses and rights to own its properties, to
carry on its QI Analyst Business as now conducted and to make and carry out the
Transactions (as defined in Section 1.3.1). Seller is duly qualified and in good
standing in each jurisdiction in which the character of its QI Analyst Business
makes such qualification necessary, except for such jurisdictions in which
Seller's failure to be so qualified would not be Materially Adverse.
2.2 Agreement Authorized. The execution, delivery and performance of this
Agreement and Transactions by Seller have been duly authorized by all necessary
corporate and other action and do not require notice to, or the consent or
approval of, any governmental or other regulatory
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authority or any other person or entity except as disclosed on Schedule 2. This
Agreement has been duly executed and delivered by Seller and is a legal, valid
and binding obligation of Seller, enforceable against Seller in accordance with
its terms. The Bill of Sale, Assignment and Assumption Agreement and all other
agreements and documents contemplated hereunder (the "Related Agreements"), when
delivered at Closing, will have been duly executed and delivered by Seller, and
will be legal, valid and binding obligations of Seller enforceable against
Seller in accordance with each of their respective terms.
2.3 No Conflict. The execution, delivery and performance by Seller of this
Agreement and the Related Agreements will not (i) to the best of Seller's
knowledge, violate any provision of law or any regulation or any order,
judgment, or decree of any court or other agency of government; (ii) violate any
provision of the Articles of Incorporation or Bylaws of Seller; or (iv) result
in the creation or imposition of (or the obligation to create or impose) any
Lien or Encumbrance on any of the Assets.
2.4 Title. Seller has good, clear and marketable title to all of the Assets, in
each case free and clear of any and all Liens and Encumbrances. None of the
Assets are located outside the United States. Except as set forth in the
Disclosure Schedule, no person has the power to terminate any of the Assigned
Contracts as a result of the execution of this Agreement or performance of the
Transactions.
2.5 Financial Matters. Prior to the date hereof, Seller has delivered to
Wonderware QI Analyst Product revenue reports for 1998, 1999 and the first
quarter of 2000 (collectively the "Financial Statements").
2.5.1 Financial Condition. The Financial Statements and all
other financial statements and historical data submitted in writing by Seller to
Wonderware in connection with the Transactions: (i) are true and correct in all
material respects as of the date thereof, (ii) were prepared in accordance with
accounting principles consistently applied by Seller, and (iii) fairly and
accurately present the financial condition of the QI Analyst Business as of the
dates thereof and the results of the QI Analyst Business related operations of
Seller for the periods covered thereby. Except as disclosed on Schedule 2.5.1,
Seller does not have knowledge of any material liabilities or guarantees related
directly to the QI Analyst Business, matured or unmatured, contingent or
otherwise, as of the respective dates of the Financial Statements not accurately
reflected in the Financial Statements, and none have arisen since that time
except in the ordinary course of business, all of which are reflected in the
Asset-related Financial Statements of Seller.
2.5.2 No Undisclosed Liabilities. There are no outstanding
material claims, liabilities or obligations of any nature, whether absolute,
accrued, known or unknown, contingent or otherwise related solely to the QI
Analyst Business, other than: (i) liabilities and obligations that are fully
reflected, accrued or reserved against on the Financial Statements, for which
the reserves are appropriate and reasonable; or (ii) other liabilities and
obligations incurred since March 31, 2000, in the ordinary course of business
consistent with past practices, none of which are material.
2.6 No Subsequent Changes. Since March 31, 2000, Seller has conducted Seller's
QI Analyst Business in the ordinary course and consistent with past practices.
There has not been, with respect solely to the QI Analyst Business, (i) any
transfer, lease or other disposition of any of the Assets or the acquisition of
any assets or properties, except in the ordinary course of business consistent
with past practices; (ii) any cancellation or compromise of any debt or claim,
except in the ordinary course of
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business consistent with past practices; (iii) any waiver or release of any
rights under any Assigned Contract, except for any such waiver or release which
will not be Materially Adverse and except for the termination of the affiliate
agreements required under Section 2.20 below; (iv) any transfer or grant of any
rights under any Intellectual Property; (v) any damage to, or destruction or
loss of Assets (whether or not covered by insurance) in excess of $25,000; (vi)
any actual or threatened in writing cancellations by customers, suppliers or
manufacturers of any material Assigned Contract; (vii) any change in any
accounting principle or method used by Seller for either income tax or financial
reporting purposes; (viii) any write-offs or write-downs of the Inventory or the
receivables of QI Analyst Products other than in the ordinary course of business
consistent with past practices; (ix) any agreement to take any action described
in this Section 2.6; and (x) any Materially Adverse change (whether or not
covered by insurance), or any occurrence or event which could reasonably be
expected to result in a Materially Adverse change.
2.7 Inventory. The Inventory consists of items of a quantity and quality usable
or salable in the ordinary course of business consistent with sales over the
last year. Seller is not under any material liability or obligation with respect
to the return of Inventory in the possession of other parties (whether or not
affiliated with Seller). Seller has not received written or oral notice that it
will experience in the foreseeable future any difficulty in obtaining, in the
desired quantity and quality and at a reasonable price and upon reasonable terms
and conditions, the finished goods, raw materials, services, supplies or
component products required for its QI Analyst Business. Seller has recorded any
additions to or depletion of its Inventory in accordance with prior practices
and maintained accurate records thereof.
2.8 Product Liability. There are (i) no statements, citations or decisions by
any governmental or regulatory body and (ii) no notices from any other party
suggesting that the QI Analyst Product is or may be defective. There is no (a)
fact known to Seller relating to any QI Analyst Products that impose, or that
may reasonably be expected to impose, upon Seller (or Wonderware upon
consummation of the Transactions) a duty to recall any QI Analyst Product or a
duty to warn its customers or any other consumer of a defect in any QI Analyst
Product, or (b) latent or overt design, manufacturing or other defect known to
Seller in any QI Analyst Product (except as previously disclosed by Seller to
Wonderware on April 25, 2000, in response to Wonderware's Technical Due
Diligence Request).
2.9 Intellectual Property.
2.9.1 Licenses. Except for the Production Asset license
agreements listed on Schedule 1.1.4, no other licenses or agreements are
necessary to continue the development, production and distribution of the QI
Analyst Products. True and complete copies of all such licenses (as amended to
date) have been delivered to Wonderware. All costs, expenses, royalties,
payments and commissions required to be paid in connection with the foregoing
through the date hereof have been paid in full by Seller. Any and all licenses
related thereto are fully assignable and to the extent assignable such licenses
shall be assigned from Seller to Wonderware on the Closing Date. There are no
other third party products or intellectual property embedded in, incorporated in
or otherwise used or distributed as a part of the QI Analyst Product. Seller and
its distributors and licensees have (and after the Closing Date, Wonderware will
have) proper and effective licenses or grants of authority to use the work
product of programmers, writers, artists, photographers, consultants and other
persons connected with the design, development,
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recording, programming, duplication, publication and distribution of the QI
Analyst Products to the extent necessary for the QI Analyst Business.
2.9.2 Copyrights. A true and complete listing of all of
Seller's copyrights, whether registered, unregistered or pending registration,
which comprise a portion of the Intellectual Property is set forth in Schedule
2.10.2. Good and sufficient copyright notice, in keeping with reasonable
business practices, has been affixed to each piece of copyrighted Intellectual
Property.
2.9.3 Trademarks. A true and complete listing of all of
Seller's Trademarks (whether registered or under common law) which comprise a
portion of the Intellectual Property are set forth in Schedule 2.10.3. Seller
has not granted any options, licenses or rights therein. Seller possesses (and
after the Closing Date, Wonderware will possess) the license or right to use for
the duration granted by applicable law (and without the need for royalty or
similar payments) all Trademarks listed on Schedule 2.10.3.
2.9.4 Non-Infringement and Litigation. Except as disclosed in
the Disclosure Schedule, Seller owns all right, title and interest in and to the
QI Analyst Products free and clear of any and all Liens and Encumbrances (except
nonexclusive, end user customer license agreements granted in the ordinary
course of business) and Seller (i) is not violating, infringing on or otherwise
acting adversely with respect to, any intellectual property or any right of
privacy of any party (whether or not an affiliate) in development, production or
distribution of the QI Analyst Products or otherwise in the operations of the QI
Analyst Business, (ii) has not received any notice from any third party and does
not know of any third party who has asserted any claim concerning such an
infringement, violation or adverse acts, or (iii) does not know of any
reasonable basis for any such claims by a third party. To Seller's knowledge, no
person or entity is violating, infringing on or otherwise acting adversely with
respect to any of the Intellectual Property.
2.10 Assigned Contracts. Schedule 1.1.5 lists all Assigned Contracts. True and
complete copies of all such Assigned Contracts (as amended to date) have been
delivered to Wonderware. All Assigned Contracts are fully executed, have been
performed to the extent required on or prior to the date hereof in all material
respects, are in full force and effect and are enforceable in accordance with
their respective terms. To Seller's knowledge, Seller is not in default under
any Assigned Contract, and no defaults (not subsequently cured) by Seller have
been alleged thereunder.
2.11 Litigation. There is no litigation, governmental investigation, arbitration
or other proceedings (formal or informal) pending or, to Seller's knowledge,
threatened, against or affecting the QI Analyst Products or QI Analyst Business,
or the Assets; Seller is not aware of any reasonable basis for any litigation,
governmental investigation, arbitration or other proceedings (formal or
informal) affecting the QI Analyst Products or QI Analyst Business, or the
Assets.
2.12 Compliance with Laws. The QI Analyst Business and operations of Seller with
respect thereto are and have been in compliance with all laws, except where the
failure to so comply would not be Materially Adverse to the QI Analyst Business.
To Seller's knowledge Seller has all permits, licenses, orders, authorizations,
registrations, approvals and other analogous instruments (each of which is in
full force and effect and to Seller's knowledge can be
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transferred without any consent or filing), and Seller has made all filings and
registrations and the like, which are necessary or proper to conduct the QI
Analyst Business, except where the failure to maintain such permits and other
instruments or to make such filings and registrations is not Materially Adverse.
2.13 Assets. The Assets constitute all of the assets and properties used solely
in connection with the QI Analyst Business (except for ordinary furniture,
fixtures and equipment) as of the date hereof, except as to the assets sold,
licensed, leased, disposed of or consumed in the ordinary course of business
prior to the Effective Date. No other entity or person controlled by,
controlling or under common control with Seller holds any assets used in or
necessary for the operation of the QI Analyst Business as currently conducted.
2.14 No Other Acquisition Agreement. Seller is not a party to any agreement,
contract, license, lease or other arrangement, formal or informal, written or
oral, with any entity other than Wonderware concerning a merger, consolidation,
asset or stock acquisition, disposition or other business acquisition or
business combination transaction involving Seller and the QI Analyst Products or
QI Analyst Business.
2.15 Commissions. Seller has not employed or incurred any liability to any
broker, finder or agent for any brokerage fees, finder's fees, commissions or
other similar payments with respect to this Agreement and the Transactions.
Seller shall defend, indemnify and hold harmless Wonderware and its affiliates
from and against any and all brokerage fees, finder's fees, commissions or other
similar payments which arise because of the act or agreement of Seller.
2.16 Accuracy of Information Furnished. To Seller's knowledge, no statement or
information contained in any schedule, certificate or other document or
information furnished, or to be furnished, in writing by or on behalf of Seller
to Wonderware contains any untrue statement of a material fact as of the date
made. Seller is not aware of any facts or circumstances not disclosed in this
Agreement or the schedules hereto which should be disclosed to Wonderware in
order to make any of the representations or warranties made by Seller herein not
misleading in any material respect.
2.17 Permits and Consents. Seller has made all filings with governmental bodies
and other regulatory authorities and has obtained all permits, approvals,
authorizations and consents of all third parties (including, without limitation,
any lender that has made a loan to Seller) necessary for it to consummate the
Transactions without being in violation of any law or otherwise adversely
affecting any of the Assets.
2.18 Termination or Release of Security Interests. Where applicable, Seller has
obtained the termination or release of all security interests in any and all of
the Assets on or before the Closing Date.
2.19 Termination or Release of Affiliate Agreements. Seller has obtained the
termination or release of all affiliate, distributor and other similar
agreements and any and all related rights of affiliates in any and all of the
Assets (including, without limitation, the right to use or sell all or any part
of the Assets).
2.20 Condition of Products. The QI Analyst Products shall perform substantially
in accordance with the product documentation provided by Seller to Wonderware.
EXCEPT AS
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OTHERWISE PROVIDED IN THIS ARTICLE II OF THE AGREEMENT, SELLER MAKES NO
WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE QI ANALYST PRODUCTS,
INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR PARTICULAR PURPOSE WHICH ARE HEREBY DISCLAIMED AND EXCLUDED.
2.21 Y2K Compliance. The QI Analyst Products are and will be capable of
correctly processing, providing and/or receiving date data (including, but not
limited to, date data within and between the twentieth and twenty-first
centuries) and are and will be capable of accurately accounting for leap years,
provided that all products (for example, hardware, software, and firmware) used
with the QI Analyst Products properly exchange accurate date data with them.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF WONDERWARE
Wonderware hereby represents and warrants that each of the following
statements is true and correct as of the date hereof, and will be true and
correct as of the Closing Date:
3.1 Existence and Rights. Wonderware (i) is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware
and (ii) has the corporate power and authority, licenses and rights to own its
properties, to carry on its business as now conducted and to make and carry out
the Transactions.
3.2 Agreement Authorized. The execution, delivery and performance of this
Agreement and the Transactions by Wonderware have been duly authorized by all
necessary corporate and other action and do not require notice to, or the
consent or approval of, any governmental or other regulatory authority or any
other person. This Agreement has been duly executed and delivered by Wonderware
and is a legal, valid and binding obligation of Wonderware, enforceable against
it in accordance with its terms. The Related Agreements, when delivered at
Closing, will have been duly executed and delivered by Wonderware and will be
legal, valid and binding obligations of Wonderware, enforceable against it in
accordance with each of their respective terms.
3.3 No Conflict. The execution, delivery and performance by Wonderware of this
Agreement and the Related Agreements will not (i) modify, breach or constitute
grounds for the occurrence or declaration of a default under or allow another
party a right to terminate any agreement, indenture, undertaking or other
instrument to which Wonderware is a party or by which they or any of the Assets
may be bound or affected, except for any such modification, breach or default
which would not have a material adverse effect, individually or in the
aggregate, on the condition (financial or otherwise), results of operations,
properties, assets, liabilities, businesses or prospects of Wonderware; (ii)
violate any provision of law or any regulation or any order, judgment, or decree
of any court or other agency of government; or (iii) violate any provision of
the Certificate of Incorporation or Bylaws of Wonderware.
3.4 Commissions. Wonderware has not employed or incurred any liability to any
broker, finder or agent for any brokerage fees, finder's fees, commissions or
other similar payments with respect to this Agreement and the Transactions.
Wonderware shall defend, indemnify and hold harmless Seller and its affiliates
from and against any and all brokerage fees, finder's fees,
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commissions or other similar payments which arise because of the act or
agreement of Wonderware.
3.5 Permits. Wonderware has made all filings with governmental bodies and other
regulatory authorities and has obtained all permits, approvals, authorizations
and consents of all third parties, necessary for Wonderware to consummate the
Transactions without being in violation of any law.
3.6 Accuracy of Information Furnished. To Wonderware's knowledge, no statement
or information contained in any schedule, certificate or other document or
information furnished, or to be furnished, in writing by or on behalf of
Wonderware to Seller contains any untrue statement of a material fact as of the
date made. Wonderware is not aware of any facts or circumstances not disclosed
in this Agreement or the schedules hereto which should be disclosed to Seller in
order to make any of the representations or warranties made by Wonderware herein
not misleading in any material respect.
ARTICLE IV
COVENANTS OF SELLER
4.1 Assignment of Assigned Agreements. Seller shall use its commercially
reasonable efforts, at Seller's sole cost and expense, to cause assignment to
Wonderware, effective at Closing, of all Assigned Contracts that, by their terms
or by law, may not be assigned or transferred to Wonderware without the consent
(written or otherwise) of any party to such Assigned Contract.
4.2 Transfer, Assignment and Registration of Intellectual Property. Seller shall
use its commercially reasonable efforts to cause transfer and assignment to
Wonderware, effective at closing, of all right, title and interest in and to all
Intellectual Property. In addition to the foregoing, Seller shall use its
commercially reasonable efforts to cooperate with and assist Wonderware to (i)
at Wonderware's sole cost and expense, cause copyright registrations to be filed
with the United States Library of Congress for all Assets for which Seller holds
unregistered copyrights (if any) and (ii) cause such affidavits of use and other
documents to be filed with the United States Patent and Trademark Office as
necessary to preserve and perfect Wonderware's right, title and interest in and
to all Intellectual Property that are trademarks, trade names or service marks.
4.3 Transfer of Business Relationships. From the Closing Date and for a period
of twelve (12) months thereafter, Seller shall use its commercially reasonable
efforts to cause its customers, suppliers, vendors and third-party product
providers to transfer their business relationships, with respect to the QI
Analyst Products and QI Analyst Business only, from Seller to Wonderware. Such
duty shall include, without limitation, the obligation of Seller to direct to
Wonderware any and all persons calling Seller's telephone numbers regarding
matters concerning the QI Analyst Products (or any other of the Assets), and to
advise all such persons that Wonderware is now the owner of the QI Analyst
Products, and advising them to direct their inquiries to Wonderware in a manner
mutually agreed to by the parties.
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4.4 Technical Support; Warranties; Product Returns.
4.4.1 Obligation to Provide Technical Support. Beginning on
the Closing Date, and continuing for a period of six (6) months thereafter (the
"Handover Period"), Seller shall provide all reasonably necessary technical
support to any and all users of the QI Analyst Products ("Technical Support")
who are the beneficiaries of, or otherwise entitled to, Technical Support under
valid, enforceable QI Analyst Product warranties or technical support
agreements; provided, however, that upon receipt of a written notice from
Wonderware that Wonderware will assume responsibility for the provision of the
Technical Support (the "Handover Notice"), Seller shall immediately stop
providing Technical Support to any party other than Wonderware and, in an
orderly fashion, shall transfer existing Technical Support customers to
Wonderware, and shall direct all subsequent Technical Support inquiries to
Wonderware. If so requested in writing by Wonderware prior to, or
contemporaneously with, Wonderware's issuance of the Handover Notice, Seller
will continue to provide "backup" Technical Support directly to Wonderware
during any time that should remain between the date Wonderware sends the
Handover Notice to Seller and the end of the Handover Period.
4.4.2 Standards of Technical Support Provided. All Technical
Support provided by Seller pursuant to Section 4.5.1 above will be provided in a
professional, workmanlike manner fully consistent with Seller's pre-Closing Date
technical support practices (including, but not limited to, the amount of time
and resources dedicated by Seller to provision of technical support for the QI
Analyst Products). On a weekly basis, beginning on the Closing Date and
terminating six (6) months thereafter, Seller shall provide Wonderware with
written reports detailing the number of phone calls received that week
requesting Technical Support for the QI Analyst Products and, for those requests
that Seller was unable to answer in the first call, a description of the
Technical Support sought.
4.4.3 Indemnification for Claims Arising From Technical
Support. Seller will promptly indemnify and hold Wonderware (including its
affiliates, officers, directors, employees and agents) harmless from and against
any and all costs and expenses (including, without limitation, reasonable
attorneys' fees and expenses and court costs incident to any claim, suit,
action, investigation or other proceeding), damages and losses (net of any tax
adjustments, settlements, reductions or other effects which actually result from
the loss and its payment) which result from i) claims arising out of, or
otherwise related to Seller's provision of Technical Support during the Handover
Period (the "Technical Support Claims") and ii) returns, replacements, repairs
or warranties with respect to any products sold, licensed, leased, shipped or
distributed by Seller prior to the Effective Date; provided, however, that
Seller shall have no liability to the extent there is a problem with a product
attributable to upgrades done by Wonderware after the Effective Date, and
provided further that Seller shall have no further liability to indemnify
Wonderware under this Section 4.5.3 for customer returns, replacements, repairs
or warranty claims made more than two (2) years after the Effective Date. To
make a claim for such indemnity, Wonderware shall send written notice to Seller
requesting such indemnity, after which Seller shall have ten (10) days to either
pay such costs in full (to avoid any reduction of the Holdback Amount), or to
contest its liability for such costs based upon a claim that the problem is
attributable to upgrades done by Wonderware or others after the Effective Date
or because the claim is based upon an event that occurred more than one (1) year
after the Effective Date. To the extent that Seller does not pay such claim
within such ten (10) day period, Wonderware shall thereafter have the right to
offset the amount of such claim against the Holdback Amount (or such amount is
insufficient to pursue a claim against the Seller) under the indemnity and
dispute resolution provisions contained herein.
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4.4.4 Division of Support Revenue. Any and all revenue
received by Seller, or by Wonderware during the Handover Period, as payment for
the provision of Technical Support during or after the Handover Period (the
"Support Revenue"), shall be prorated in increments of days, and divided between
Seller and Wonderware according to the following provisions:
(a) Seller shall be entitled to 100 percent of the
Support Revenue received prior to Wonderware's issuance of the Handover
Notice.
(b) to the extent Wonderware requests that Seller
provide "backup" support to Wonderware during the period following
issuance of a Handover Notice but prior to the end of the Handover
Period (the "Backup Period"), Seller shall be entitled to fifty (50)
percent of the Support Revenue received during the Backup Period.
(c) Seller shall not be entitled to any Support
Revenue after the end of the Handover Period.
4.4.5 Product Returns. From and after the Closing Date, in
conjunction with Seller during the Handover Period and in its sole discretion
following the end of the Handover Period, Wonderware, in accordance with
reasonable business practices, shall determine whether to accept returns of
products sold by Seller, to supply replacement products, to repair products or
to perform any warranty work with respect to the products, including with
respect to products sold, licensed, leased, shipped or distributed by Seller
prior to the Closing Date.
4.5 QI Analyst Products Knowledge Transfer. From and after the Closing Date and
terminating six (6) months thereafter, at no additional cost to Wonderware,
Seller shall make available to Wonderware, at mutually convenient times and
locations, and for multiple, non-consecutive periods totaling not less than ten
(10) cumulative days, a sufficient number of individuals (but no fewer than one
(1)) who are qualified to train Wonderware personnel regarding the use,
features, and functionality of the QI Analyst Products.
4.6 Technical Support Knowledge Transfer. Upon Wonderware's request, and for no
more than two (2) sessions of two days duration each, Seller shall, at no
additional cost to Wonderware and at a mutually convenient location, make
available to Wonderware a sufficient number of individuals (but no fewer than
one (1)) qualified to train Wonderware personnel to provide Technical Support
for the QI Analyst Products and to teach other Wonderware personnel to provide
Technical Support for the QI Analyst Products (the "Knowledge Transfer
Meetings"). The first Knowledge Transfer Meeting shall occur within four (4)
months after the Closing Date and the second Knowledge Transfer Meeting shall
occur within six (6) months after the Closing Date.
4.7 Statistical Consulting. From and after the Closing Date, at no additional
cost to Wonderware and terminating six (6) months thereafter, Seller shall make
available to Wonderware, at a mutually convenient time and location, and for
multiple, non-consecutive periods totaling not less than eighty (80) cumulative
hours, a sufficient number of statisticians (but no fewer than one (1))
qualified to assist Wonderware personnel in resolving any statistical questions
or problems arising from Wonderware's use or further development of the QI
Analyst Products.
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4.8 Sales or Use Taxes. Seller agrees to pay all sales, use, property and other
taxes, duties and assessments related to the sale and transfer of the QI Analyst
Products and QI Analyst Business and the Assets (other than state or federal
income taxes imposed upon Wonderware), and Seller agrees to indemnify, defend
and hold Wonderware harmless against any such liabilities.
4.9 Non-Competition. Neither Seller nor any affiliate controlled by Seller will
develop, market or distribute any software program that performs or is intended
to perform functions substantially the same as those performed by the QI Analyst
Products.
ARTICLE V
COVENANTS OF WONDERWARE
5.1 Access to Books and Records After Closing Date. Wonderware shall maintain,
for a period of two (2) years, all original pre-closing Books and Records. After
the Closing Date, Wonderware shall provide Seller, during ordinary business
hours and upon reasonable notice, with access to the original Books and Records
for review and copying.
ARTICLE VI
INDEMNIFICATION
6.1 Indemnification. Wonderware, on the one hand, and Seller on the other hand,
each agree to indemnify and hold the other (including their affiliates,
officers, directors, employees and agents) harmless from and against any and all
costs and expenses (including, without limitation, reasonable attorneys' fees
and expenses and court costs incident to any claim, suit, action, investigation
or other proceeding), damages and losses, net of any tax adjustments,
settlements, reductions or other effects which actually result from the loss and
its payment ("Losses") arising out of or resulting from a breach of any
representation, warranty or covenant made by, or obligation or agreement of,
such party to this Agreement. Seller further agrees to indemnify and hold
Wonderware (including its affiliates, officers, directors, employees and agents)
harmless from and against any and all Losses arising out of or resulting from
(i) the Excluded Liabilities and (ii) non-compliance by the Seller with any
applicable bulk transfer laws in connection with the sale of the Assets
hereunder. Wonderware further agrees to indemnify and hold Seller (including its
affiliates, officers, directors, employees and agents) harmless from and against
any and all Losses arising out of the QI Analyst Business acquired by Wonderware
after the Closing Date, to the extent arising out of transactions entered into,
actions taken or events occurring after the Closing Date, and including without
limitation those arising from the Assigned Contracts, but not including without
limitation those arising from the Excluded Contracts, Excluded Liabilities, or
Technical Support Claims. Seller's indemnification of Wonderware shall be
subject to satisfaction from the Purchase Price, including but not limited to
the Holdback Amount, and shall specifically include, without limitation, any
Losses arising out of (a) taxes (including, without limitation, payroll and
social security taxes) related to the QI Analyst Business prior to the Closing
Date, or which are otherwise the obligation of the Seller; (b) sales, use,
property and other taxes, duties and assessments related to the sale and
transfer of the QI Analyst Products and QI Analyst Business and the Assets
(other than state or federal income taxes imposed upon Wonderware) arising from
or related to the Transactions; (c) noncompliance (including, without
limitation, environmental noncompliance) with laws, rules, regulations,
statutes, ordinances, permits, judgments, injunctions, orders, decrees, licenses
or other governmental authorizations or approvals applicable to the QI Analyst
Business prior to the Closing Date and (d) any failure of
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Seller to fully perform its obligations hereunder with respect to product
returns, product warranties, and product repairs on products sold by Seller
and/or Seller's failure to comply with its obligations (through offset of the
Holdback Amount or otherwise) with respect thereto under Section 4.4 of this
Agreement. With the exception of breach by Seller of its representations and
warranties with respect to Section 2.4 above, each party's aggregate liability
to the other party hereunder shall not exceed the Purchase Price. Seller's
representations and warranties set forth in Article II and its obligations of
indemnification pursuant to this Section 6.1 shall survive the Closing Date and,
with the exception of Seller's obligations under Sections 6.1(a) and (b) above,
will expire on the date that is eighteen (18) months after the Closing Date.
Seller's obligations of indemnification under Sections 6.1(a) and (b) shall not
expire.
6.2 Procedure for Indemnification.
6.2.1 The provisions of this Section 6.2 shall govern any
claim for indemnification by Wonderware or by Seller pursuant to Section 6.1
(each such party an "Indemnitee") against the party or parties agreeing to
provide indemnification hereunder (the "Indemnitor").
6.2.2 The Indemnitee shall promptly give notice hereunder
to the Indemnitor, after obtaining notice of any claim as to which recovery may
be sought against the Indemnitor, and, if such indemnity shall arise from the
claim of a third party, the Indemnitee shall consent to the Indemnitor assuming
the defense of any such claim; provided that the Indemnitee shall not be
required to permit the Indemnitor to assume the defense of any third party claim
(i) which, if not first paid, discharged or otherwise complied with, would
result in a material interruption or cessation of the conduct of the business of
the Indemnitee ("An Exigent Claim"), or (ii) if the Indemnitee, reasonably
concludes that there may be a conflict of interest between the Indemnitor, on
the one hand, and the Indemnitee, on the other hand, in the conduct of the
defense of such action ("A Conflict of Interest Claim"). Failure by the
Indemnitor to notify the Indemnitee of its election to defend any such claim or
action within fourteen (14) days of the date of notice from the Indemnitee shall
be deemed to constitute its consent to the Indemnitee's assumption of such
defense. If the Indemnitor assumes the defense of such claim or litigation
resulting therefrom, the obligations of the Indemnitor 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,
which counsel must be to the Indemnitee's reasonable satisfaction, and holding
the Indemnitee harmless from and against any and all Damage resulting from,
arising out of, or incurred with respect to any settlement approved by the
Indemnitor or any judgment in connection with such claim or litigation resulting
therefrom. The Indemnitor shall not, in the defense of such claim or litigation,
(a) 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 Indemnitee,
which consent shall not be unreasonably withheld, or (b) enter into any
settlement (except with the written consent of the Indemnitee, which consent
shall not be unreasonably withheld), unless the Indemnitee is released and held
harmless from and against any and all Losses resulting from, arising out of or
incurred with respect to such judgment or settlement.
6.2.3 If the Indemnitor shall not assume the defense of any
such claim by a third party or litigation resulting therefrom, the Indemnitee
may defend against such claim or litigation in such manner as it deems
appropriate, and the Indemnitee may settle such claim or litigation on such
terms as it may deem appropriate (except that in the event of A Conflict of
Interest Claim in
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which the Indemnitee is defending itself, the Indemnitee shall not settle unless
it has first obtained the written consent of the Indemnitor, which consent shall
not be unreasonably withheld; and except with respect to An Exigent Claim, the
Indemnitee shall endeavor to give notice of such terms of the settlement, but
may settle the claim without the written consent of the Indemnitor if the
Indemnitee reasonably determines that such settlement is necessary to avoid a
material interruption or cessation of the conduct of the business of the
Indemnitee) and the Indemnitor shall promptly reimburse the Indemnitee for the
amount of such settlement and for all Losses incurred by the Indemnitee in
connection with the defense against or settlement of such claim or litigation.
ARTICLE VII
CONDITIONS PRECEDENT
7.1 Conditions to Each Party's Obligation. The obligations of Seller and
Wonderware to consummate the Closing are subject to the satisfaction, at or
before the Closing Date, of each of the following conditions:
7.1.1 No Injunctions; Orders. No preliminary or permanent
injunction or other order shall have been issued by any federal, state,
municipal, domestic, foreign, or other governmental tribunal (the "Court"), or
by any federal, state, municipal, domestic, foreign, or other administrative,
regulatory, or licensing agency or entity, licensing department, commission,
board, bureau or other governmental or quasi-governmental authority or
instrumentality (the "Governmental Entity") nor shall any statute, rule,
regulation, or executive order be promulgated or enacted by any Governmental
Entity that prevents the consummation of the Transactions.
7.1.2 Approvals. Except as otherwise provided herein, all
authorizations, consents, orders, or approvals of, or declarations or filings
with, or expiration of waiting periods imposed by, any Governmental Entity
necessary for the consummation of the Transactions shall have been filed,
occurred or been obtained, all of which have been disclosed pursuant to Section
2.2 above.
7.1.3 No Litigation. No action or proceeding before any Court
or any Governmental Entity shall be pending and no investigation by any
Governmental Entity shall have been commenced, and no action or proceeding by
any Governmental Entity shall have been threatened against the Seller or
Wonderware or any of their respective officers, directors, employees or agents
seeking to prevent or delay the Transactions or challenging any of the terms or
provisions of this Agreement or seeking material damages in connection
therewith.
7.2 Conditions to Seller's Obligations. The obligations of the Seller to
consummate the Closing are subject to the satisfaction on or prior to the
Closing Date, of the following conditions, in addition to the other deliveries
of Wonderware required hereunder:
7.2.1 Representations and Warranties True. The representations
and warranties of Wonderware shall be in all material respects true and correct
as of the Closing Date as though such representations and warranties were made
at and as of such date, except for changes expressly permitted or contemplated
by this Agreement, and Seller shall have received a certificate from an officer
of Wonderware in the form attached hereto as Exhibit D-2, attesting to such
fact.
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7.2.2 Performance. Wonderware shall have performed and
complied with, in all material respects, all agreements, obligations and
conditions required by this Agreement to be performed or complied with by it on
or prior to the Closing Date, and Seller shall have received a certificate from
an officer of Wonderware in the form attached hereto as Exhibit D-2, attesting
to such fact.
7.3 Conditions to Wonderware's Obligations. The obligations of Wonderware to
consummate the Closing are subject to the satisfaction on or prior to the
Closing Date, of the following conditions, in addition to the other deliveries
of Seller required hereunder.
7.3.1 Representations and Warranties True. The representations
and warranties of Seller shall be in all material respects true and correct as
of the Closing Date as though such representations and warranties were made at
and as of such date, except for changes expressly permitted or contemplated by
this Agreement, and Wonderware shall have received a certificate from an officer
of Seller in the form attached hereto as Exhibit D-1, attesting to such fact.
7.3.2 Performance. Seller shall have performed and complied
with, in all material respects, all agreements, obligations and conditions
required by this Agreement to be performed or complied with by it on or prior to
the Closing Date, and Wonderware shall have received a certificate from an
officer of Seller in the form attached hereto as Exhibit D-1, attesting to such
fact.
7.3.3 Employment Agreements with Seller's Personnel. James
Cheever and Richard Marcell shall have accepted employment offers from
Wonderware and shall have indicated such acceptance by countersigning Wonderware
offer letters and returning them to Wonderware.
7.3.4 Provision of Materials for Product Due Diligence. Seller
shall have provided to Wonderware copies of the QI Analyst Products, associated
source code and such other documentation, materials and cooperation that
Wonderware may reasonably request to allow Wonderware to fully satisfy itself
that the QI Analyst Products will be compatible with other Wonderware software
and that the QI Analyst Products will be suitable for Wonderware's intended
purposes.
7.3.5 Completion of Product Due Diligence. Wonderware shall
have completed all testing and examination reasonably necessary to fully satisfy
itself that no material incompatibilities or other material issues regarding the
suitability of the QI Analyst Products for Wonderware's intended uses exist and
Wonderware shall have provided written notice to Seller that Wonderware
satisfactorily completed its product due diligence.
7.3.6 Provision of Technical Support Call Logs. Seller shall
have provided to Wonderware any and all QI Analyst Products technical support
call logs and any other similar documents containing information regarding
technical support questions or issues associated with the QI Analyst Products.
7.4 Effect of Consummation of the Closing. Upon the condition that the Closing
occurs, (i) the failure of any condition or (ii) the breach of any
representation, warranty, or covenant of any party hereto of which the other
party has received written notice from the breaching party prior
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to the Closing Date and which breach is waived in writing by the non-breaching
party, shall be deemed waived as of the date hereof and as of the Closing Date
and all conditions to Closing specified in this Agreement shall be deemed
satisfied.
ARTICLE VIII
TERMINATION, AMENDMENT AND WAIVER
8.1 Grounds for Termination. This Agreement may be terminated at any time prior
to the Closing Date:
8.1.1 Mutual Consent. By mutual written consent of Wonderware
and Seller.
8.1.2 Breach of Warranties or Covenants; Misrepresentation. By
either Wonderware or Seller if there has been a material breach of any
representation, warranty, covenant, or agreement contained in this Agreement on
the part of the other party set forth in this Agreement and such breach of a
covenant or agreement has not been cured within thirty (30) days following
written notice from the other party of the alleged breach.
8.1.3 Expiration Date. By either Wonderware or Seller if the
Closing shall not have been consummated within three (3) months of the Effective
Date (the "Expiration Date"), unless such date is extended by mutual written
agreement of Wonderware and Seller. Termination on or after the Expiration Date
pursuant to this Section 8.1.3 shall be without prejudice to the rights and
remedies available to the nonbreaching party if one party is in breach hereof as
of the Expiration Date.
8.1.4 Illegality. By either Wonderware or Seller if there
shall be a final nonappealable order of a Court of competent jurisdiction in
effect preventing the Closing.
8.1.5 Government Action. By Wonderware, if there shall be any
action taken, or any statute, rule, regulation, or order enacted, promulgated,
or issued that would prohibit Wonderware from owning all or a material portion
of the QI Analyst Product or QI Analyst Business as a result of the transactions
contemplated herein.
8.2 Effect of Termination. If this Agreement is terminated by either Wonderware
or Seller as provided above, this Agreement shall forthwith become void and
there shall be no liability or obligation on the part of Wonderware or Seller or
their respective officers, directors, employees, or agents; provided, however,
that termination by either Wonderware or Seller pursuant to Sections 8.1.2 or
8.1.3 above shall be without prejudice to the rights and remedies available to
the nonbreaching party if one party is in breach hereof as of the date of
termination.
8.3 Waiver. Any party hereto may, to the extent legally allowed: (i) extend the
time for the performance of any of the obligations or other acts of the other
party; (ii) waive any inaccuracies in the representations and warranties made to
such party; or (iii) waive compliance with any of the agreements or conditions
for the benefit of such party. No such agreement shall be effective unless in
writing.
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ARTICLE IX
MISCELLANEOUS
9.1 Announcements. Except to the extent required by law, neither party shall
make, or cause to be made, any news releases or other public announcements
pertaining to the Transactions prior to the Closing Date without first
consulting the other party and attempting to formulate a mutually satisfactory
arrangement for such disclosure.
9.2 Cooperation. Each party hereto agrees, both before and after the Closing
Date, to execute any and all further documents and writings and perform such
other reasonable actions which may be or become necessary or expedient to
effectuate and carry out the Transactions (which shall not include any
obligation to make payments).
9.3 Complete Agreement: Modifications. This Agreement, and any documents
referred to herein or executed contemporaneously herewith, constitute the
parties' entire agreement with respect to the subject matter hereof and
supersede all agreements, representations, warranties, statements, promises and
understandings, whether oral or written, with respect to the subject matter
hereof. This Agreement may not be amended, altered or modified except by a
writing signed by Wonderware and Seller to be bound by such amendment,
alteration or modification.
9.4 Expenses. The parties hereto will each pay all of their own expenses
incurred in connection with the authorization, preparation, execution and
performance of this Agreement and the Transactions, including, without
limitation, all fees and expenses of their respective agents, representatives,
counsel and accountants.
9.5 Remedies Not Exclusive: No Termination. No remedy conferred by any of the
specific provisions of this Agreement is intended to be exclusive of any other
remedy, and each and every remedy will be cumulative and will be in addition to
every other remedy given hereunder or now or hereafter existing at law or in
equity or by statute or otherwise. The election of any one or more remedies will
not constitute a waiver of the right to pursue other available remedies.
9.6 Notices. All notices or other communications required or permitted hereunder
shall be in writing and shall be given or made by personal delivery, by a
nationally recognized courier service for overnight delivery, by facsimile (with
a confirming copy by regular mail) or by registered or certified mail, postage
prepaid, return receipt requested, addressed
if to Seller, at:
SPSS Inc.
233 South Wacker Drive, 11th Floor
Chicago, IL 60606
Attention: Mr. Edward Hamburg
Telephone (312) 651-3000
Facsimile: (312) 651-3558
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with a copy to:
Ross & Hardies
150 North Michigan Ave., Ste. 2500
Attention Lawrence K. Samuels, Esq.
Telephone: (312) 558-1000
Facsimile: (312) 750-8600
if to Wonderware, at:
Wonderware Corporation
100 Technology
Irvine, CA 92618
Attention: Philip C. Maynard, General Counsel
Telephone: (949) 727-3200
Facsimile: (949) 453-6543
or at such other place as the party to whom such notice of communication is to
be addressed may have designated to the other parties by notice conforming to
this Section 9.6. Notices shall be deemed effective and received (i) on the
actual receipt in the case of hand delivery or facsimile, (ii) on the next
business day after deposit in the case of notices by nationally recognized
overnight courier services, or (iii) on the third business day after the date of
mailing in the manner set forth herein. As used herein, notice to a party shall
include concurrent notice to that party's counsel as set forth herein.
9.7 Third-Party Benefits. None of the provisions of this Agreement will be for
the benefit of, or enforceable by, any third-party beneficiary.
9.8 Governing Law. This Agreement shall be governed by and construed in
accordance with the substantive laws of the State of Delaware without giving
effect to the conflicts of law or choice of law provisions thereof.
9.9 Dispute Resolution and Arbitration.
9.9.1 Negotiation Between Executives. The parties shall
attempt in good faith to resolve any dispute arising out of, or relating to,
this Agreement promptly by negotiation between executives who have authority to
settle the controversy and who are at a higher level of management than the
persons with direct responsibility for administration of this contract. Any
party may give the other party written notice of any dispute not resolved in the
normal course of business. Within 15 days after delivery of the notice the
receiving party shall submit to the other a written response. The notice and the
response shall include (i) a statement of each party's position and a summary of
arguments supporting that position, and (ii) the name and title of the executive
who represents that party and of any other person who will accompany the
executive. Within ten days after delivery of the receiving party's response, the
executives of both parties shall meet at a mutually acceptable time and place,
and thereafter as often as they reasonably deem necessary, to attempt to resolve
the dispute. All reasonable requests for information made by one party to the
other will be honored. If the matter has not been resolved within 45 days of the
disputing party's notice, or if the parties fail to meet within ten days, either
party may initiate arbitration of the controversy or claim as provided
hereinafter. All negotiations pursuant to this
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clause are confidential and shall be treated as compromise and settlement
negotiations for purposes of the Federal Rules of Evidence and other states'
rules and codes of evidence.
9.9.2 Arbitration. Any dispute arising out of or relating to
this Agreement or the breach, termination or the validity thereof, which has not
been resolved by the nonbinding meet and confer provisions provided in Section
9.9.1 above shall be settled by arbitration in accordance with the then-current
American Arbitration Association rules for arbitration of business disputes by a
sole arbitrator who shall be a former superior court or appellate court judge or
justice with significant experience in resolving business disputes. Judgment
upon the award rendered by the arbitrator may be entered by any court having
jurisdiction thereof; provided, however, that any award issued as a result of
arbitration shall be reviewable de novo by a court of competent jurisdiction for
errors of law. The place of arbitration shall be Wilmington, Delaware. THE
ARBITRATOR SHALL AWARD TO THE PREVAILING PARTY SUCH PARTY'S COSTS INCURRED IN
CONNECTION WITH THE ARBITRATION, INCLUDING REASONABLE ATTORNEYS' FEES AND EXPERT
WITNESS FEES. The arbitrator may award equitable relief in those circumstances
where monetary damages would be inadequate. The arbitrator shall be required to
follow the applicable law as set forth in the governing law section of this
Agreement.
9.10 Waivers Strictly Construed. With regard to any power, remedy or right
provided herein or otherwise available to any party hereunder (i) no waiver or
extension of time will be effective unless expressly contained in a writing
signed by the waiving party; and (ii) no alteration, modification or impairment
will be implied by reason of any previous waiver, extension of time, delay or
omission in exercise, or other indulgence.
9.11 Illegality. Nothing herein contained shall be construed to require the
performance by either party of any act contrary to law. In the event of any
conflict between any provision hereof and any law or governmental regulation,
the latter shall prevail, but in such event the affected provisions of this
Agreement shall be curtailed only to the extent necessary to bring them within
the requirement of such law or regulation requirement.
9.12 Successors and Assigns. Neither this Agreement nor any of the rights
hereunder shall be assignable by Wonderware, on the one hand, or Seller on the
other hand, without the prior written consent of the other party, except that,
after the Closing Date, Wonderware shall have the right to assign its
post-Effective Date rights under this Agreement to any affiliate of Wonderware.
Except as set forth in the preceding sentence, this Agreement shall inure to the
benefit of and shall be binding on the parties, and their respective successors
and permitted assigns.
9.13 Rules of Construction.
9.13.1 Headings. The Article and Section headings in this
Agreement are inserted only as a matter of convenience, and in no way define,
limit, or extend or interpret the scope of this Agreement or of any particular
Article or Section.
9.13.2 Tense and Case. Throughout this Agreement, as the
context may require, references to any word used in one tense or case shall
include all other appropriate tenses or cases.
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9.13.3 Severability. The validity, legality or enforceability
of the remainder of this Agreement will not be affected even if one or more of
the provisions of this Agreement is held to be invalid, illegal or unenforceable
in any respect.
9.13.4 Agreement Negotiated. The parties hereto are
sophisticated and have been represented by lawyers throughout this transaction
who have carefully negotiated the provisions hereof.
9.14 Counterparts. This Agreement may be executed simultaneously in two or more
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
"Wonderware" Wonderware Corporation
By: /s/ Sam M. Auriemma
-------------------------------------
Sam M. Auriemma, Vice President,
Chief Financial Officer and Secretary
"Seller" SPSS Inc.
By: /s/ Mark Battaglia
-------------------------------------
Mark Battaglia,
Executive Vice President
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EXHIBITS AND SCHEDULES
Exhibits
--------
Exhibit A - Description of QI Analyst Product and Business
Exhibit B - Bill of Sale
Exhibit C - Assignment and Assumption Agreement
Exhibit D-1 - Form of Seller's Officer's Certificate
Exhibit D-2 - Form of Wonderware's Officer's Certificate
Exhibit E - Form of License Agreements for Gencode.exe, Gencodew.exe and
Helptag.dot
Schedules
---------
Schedule 1.1.2 Tangible Assets
Schedule 1.1.3 Inventory
Schedule 1.1.4 Production Assets
Schedule 1.1.5 Assigned Contracts
Schedule 1.4 Allocation of Purchase Price
Schedule 2 Disclosure Schedule
Schedule 2.5.1 QI Analyst Liability Disclosure
Schedule 2.10.2 Copyrights
Schedule 2.10.3 Trademarks