ASSET PURCHASE AGREEMENT BY AND AMONG PREMIER DATA SERVICES, INC. AND CUSTOMERSOFT, LLC Dated as of November 1, 2006
Exhibit
10.22
BY
AND AMONG
PREMIER
DATA SERVICES, INC.
AND
CUSTOMERSOFT,
LLC
Dated
as of November 1, 2006
This
AGREEMENT (this “Agreement”), dated as of November 1, 2006, by and
between Premier Data Services, a Delaware California corporation
(“Seller”) and CustomerSoft, LLC, a Colorado limited liability company
(“Purchaser”).
RECITALS
WHEREAS,
one of Seller’s divisions known as the “CustomerSoft” or “Customer Relationship
Management” division (the “CRM Division”) is engaged in designing, making
and selling the CRM Products; and
WHEREAS,
the parties desire that Seller sell, transfer and assign to Purchaser, and
that
Purchaser purchase and assume from Seller, certain specified assets and
liabilities related to the CRM Division, all as more specifically provided
herein (the “Acquisition”);
NOW,
THEREFORE, in consideration of the premises and the mutual representations,
warranties, covenants and undertakings contained herein, and for other good
and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
ARTICLE
I
DEFINITIONS
Section
1.1 Defined
Terms
As
used
herein, the terms below shall have the following meanings. Any of
such terms, unless the context otherwise requires, may be used in the singular
or plural, depending upon the reference.
“Acquired
Assets” has the meaning set forth in Section 2.1.
“Acquired
Software” means all Seller owned computer software that is used exclusively
in and related exclusively to the CRM Products and listed or described in
Schedule 2.1(d).
“Acquired
Technology” means the Acquired Software and the developments, data, designs,
information, control algorithms and methods, manufacturing processes, business
methods and processes, inventions (whether or not patentable), works of
authorship and other technology used exclusively in or related exclusively
to
the CRM Products.
“Acquisition”
has the meaning set forth in the Recitals.
“Affiliate”
means, with respect to a Person, any other Person directly or indirectly
controlling, controlled by, or under common control with, such Person at
any
time during the period for which the determination of affiliation is being
made. For purposes of this definition, the term “control” means, with
respect to any Person, the possession, directly or indirectly, of the power
to
direct or cause the direction of management policies of such Person, whether
through the ownership of voting securities or by contract or
otherwise.
“Agreement”
has the meaning set forth in the Preamble.
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“Ancillary
Agreements” means the IP Agreement, the Sublease and the Transition Services
Agreement.
“Assigned
Intellectual Property Rights” means the Intellectual Property Rights
assigned by Seller to Purchaser pursuant to the IP Agreement.
“Assumed
Contracts” has the meaning set forth in Section 2.1(f).
“Assumed
Liabilities” has the meaning set forth in Section 2.3.
“▇▇▇▇
of Sale” has the meaning set forth in Section 3.2(b).
“Business
Day” means any day that is not a Saturday, Sunday or other day on which
banks are required or authorized by Law to be closed in the State of
Colorado.
“Closing”
has the meaning set forth in Section 3.1.
“Closing
Date” has the meaning set forth in Section 3.1.
“Code”
means the Internal Revenue Code of 1986, as amended, and the rules and
regulations promulgated thereunder.
“CRM
Division” has the meaning set forth in the Recitals.
“CRM
Division Employee” has the meaning set forth in Section
6.8(a).
“CRM
Products” means the products and services listed on Schedule
1.1.
“Damages”
has the meaning set forth in Section 9.1(a).
“Excluded
Assets” has the meaning set forth in Section 2.2.
“Excluded
Liabilities” has the meaning set forth in Section 2.4.
“GAAP”
means United States generally accepted accounting principles.
“Governmental
Entity” means any U.S. or non-U.S. arbitrator, court, agency, commission,
nation, government, any state or other political subdivision thereof and
any
entity exercising or entitled to exercise executive, legislative, judicial,
regulatory, taxing or administrative power or authority of any nature
whatsoever.
“Indemnified
Person” means a Purchaser Indemnified Person or a Seller Indemnified
Person.
“Intellectual
Property Rights” means patents, trade secrets, copyrights and trademarks,
including all applications for, and registrations, grants or issuances of,
the
foregoing.
“Inventory”
has the meaning set forth in Section 2.1(a).
“IP
Agreement” means the Assignment and License of Intellectual Property
Agreement by and between Seller and Purchaser substantially in the form of
Exhibit A hereto.
“IRS”
means the Internal Revenue Service.
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“Knowledge”
means: (i) with respect to Seller, the actual knowledge of Seller’s
directors and officers or other management-level personnel after due and
diligent inquiry; and (ii) with respect to Purchaser, the actual knowledge
of
▇▇▇ ▇▇▇▇▇▇, after due and diligent inquiry.
“Law”
means any law (including common law), statute, ordinance, rule, regulation,
code, order, judgment, injunction, decree or binding judicial or administrative
doctrine that is promulgated or issued by any Governmental Entity.
“Lien”
means, with respect to any asset (including any security), any mortgage,
lien,
pledge, charge or security interest in respect of such asset;
provided, however, that the term “Lien” shall not
include: (i) statutory liens for Taxes, which are not yet due and
payable or are being contested in good faith by appropriate proceedings;
(ii)
statutory or common law liens to secure landlords, lessors or renters under
leases or rental agreements confined to the premises rented; (iii) deposits
or
pledges made in connection with, or to secure payment of, workers’ compensation,
unemployment insurance, old age pension or other social security programs
mandated under applicable Laws; and (iv) statutory or common law liens in
favor
of carriers, warehousemen, mechanics and materialmen to secure claims for
labor,
materials or supplies incurred in the ordinary course of business and (x)
not
yet delinquent or (y) being contested in good faith and other like
liens.
“Material
Adverse Effect” means: (i) any event, change, effect that is materially
adverse to the financial condition, properties, assets (including intangible
assets), liabilities, business, operations or results of operations of the
CRM
Division, taken as a whole, excluding from the foregoing any event, change
or
effect arising or resulting from or relating to: (A) changes in
general economic, financial market, political or regulatory conditions or
changes affecting the industry in which the CRM Division operates generally,
(B)
the announcement or provision of notice of this Agreement or the Acquisition,
(C) compliance by Purchaser or Seller with the prohibitions contained in,
or the
taking of any action contemplated or permitted by, this Agreement, (D) any
action taken by Purchaser in respect of the CRM Products or the CRM Division,
(E) the outbreak or escalation of war, hostilities or terrorist activities;
and
(ii) with respect to Purchaser, any event, change, effect that is materially
adverse to the financial condition, properties, assets (including intangible
assets), liabilities, business, operations or results of operations of
Purchaser.
“Officer’s
Certificate” has the meaning set forth in Section
9.2(a).
“Person”
means an individual, a corporation, a partnership, a limited liability company,
an association, a trust or any other entity or organization.
“Personal
Property” has the meaning set forth in Section 2.1(b).
“Proprietary
Asset” means: (a) any patent, patent application, trademark (whether
registered or unregistered), trademark application, trade name, fictitious
business name, service ▇▇▇▇ (whether registered or unregistered), service
▇▇▇▇
application, copyright (whether registered or unregistered), copyright
application, maskwork, maskwork application, trade secret, know-how, customer
list, franchise, system, computer software, computer program, invention,
design,
blueprint, engineering drawing, proprietary product, proprietary technology,
proprietary right or other proprietary intellectual property right or intangible
asset related exclusively to the CRM Products; and (b) any right to use or
exploit any of the foregoing.
“Purchase
Price Allocation Schedule” has the meaning set forth in Section
2.7.
“Purchaser”
has the meaning set forth in the Preamble.
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“Purchaser
Indemnified Person” or “Purchaser Indemnified Persons” has the
meaning set forth in Section 9.1(a).
“Seller”
has the meaning set forth in the Preamble.
“Seller
Authorizations” has the meaning set forth in Section
4.8.
“Seller
Disclosure Schedule” has the meaning set forth in Article
IV.
“Seller
Indemnified Person” or “Seller Indemnified Persons” has the meaning
set forth in Section 9.1(b).
“Sublease”
means the sublease agreement substantially in the form of Exhibit B
hereto by and between Seller and Purchaser for the sublease of the current
premises of the CRM Division.
“Tax”
or “Taxes” means all United States federal, state, local and foreign
taxes, and other assessments of a similar nature including, without
limitation: (i) taxes or other charges on or with respect to income,
franchises, windfall or other profits, gross receipts, profits, sales, use,
capital stock, payroll, employment, social security, workers’ compensation,
unemployment compensation or net worth; (ii) taxes or other charges in the
nature of excise, withholding, ad valorem, stamp, transfer, value added
or gains taxes; (iii) license, registration and documentation fees; and (iv)
customs duties, tariffs and similar charges, in each case, whether imposed
directly or through withholding, and including any interest, additions to
tax,
or penalties applicable thereto.
“Tax
Authority” means the IRS and any other national, regional, state, municipal,
foreign or other governmental or regulatory authority or administrative body
responsible for the administration of any Taxes.
“Tax
Return” means all United States federal, state, local and foreign tax
returns, declarations, statements, reports, schedules, forms and information
returns or other documents and any amendments thereto required to be filed
with
a Tax Authority.
“Termination
Date” has the meaning set forth in Section 8.1(b).
“Transaction
Expenses” has the meaning set forth in Section 8.3.
“Transferred
Personnel” means all CRM Division Employees engaged in the CRM Division
prior to the Closing Date, who will become employees or contractors of Purchaser
after the Closing Date.
“Transition
Services Agreement” means the transition services agreement substantially in
the form of Exhibit C hereto by and between Purchaser and Seller pursuant
to which Seller shall provide to Purchaser certain administrative services
and
infrastructure support (on the terms and subject to the conditions described
therein).
“Undertaking
and Instrument of Assumption” has the meaning set forth in Section
3.3(b).
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ARTICLE
II
PURCHASE
AND SALE OF ASSETS
Section
2.1 Sale and
Transfer of the Assets
On
the
terms and subject to satisfaction or a waiver of the conditions set forth
in
this Agreement, at the Closing, Seller shall sell, assign, transfer, convey
and
deliver, or cause to be sold, assigned, transferred, conveyed and delivered,
to
Purchaser, and Purchaser shall purchase and accept from Seller, all rights,
titles and interests of Seller in and to the properties and assets of Seller
that are described below, wherever located, as the same shall exist on the
Closing Date free and clear of all Liens, but excluding, in each case, any
such
rights, properties and assets that constitute Excluded Assets (collectively,
the
“Acquired Assets”):
(a) all
inventory of the CRM Division, including raw materials, work-in-progress
and
finished goods (the “Inventory”);
(b) all
of the machinery and equipment, tools, furniture, supplies, spare parts,
replacement and component parts and other tangible personal property of the
CRM
Division listed on Schedule 2.1(b) (the “Personal
Property”);
(c) all
Assigned Intellectual Property Rights;
(d) all
Proprietary Asset and Acquired Technology;
(e) all
assignable rights of Seller relating to the CRM Products or the CRM Division
in
and to all agreements, contracts and arrangements that are listed or described
on Schedule 2.1(e) (the “Assumed
Contracts”);
(f) all
accounts receivable due to Seller from any Person prior to the
Closing;
(g) all
books and records of Seller relating to the Acquired Assets;
(h) Seller’s
marketing and sales materials relating exclusively to the CRM
Division;
(i) Seller’s
backlog relating exclusively to the CRM Division;
(j) all
customer or client lists, files, documentation, and records used exclusively
in
connection with the CRM Division;
(k) all
general, financial and personnel records, ledgers, sales invoices, accounts
and
payable records, files, correspondence and other files and records of Seller
relating exclusively to the CRM Division;
(l) all
leases of equipment, machinery or other tangible personal property relating
exclusively to the CRM Division (the “Personal Property Leases”);
(m) all
goodwill relating exclusively to the CRM Division;
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(n) all
other assets and property of Seller of whatever kind and nature, real or
personal, tangible or intangible, that are owned, leased or licensed by Seller
as of the Closing and which are used by Seller exclusively in Seller's operation
of the CRM Division, other than the Excluded Assets;
(o) all
causes of action, judgments, claims, deposits, refunds, rebates, rights of
recovery, rights of set-off, rights of recoupment or demands of whatever
kind or
description exclusively relating to the CRM Division which Seller has or
may
have against any other person or entity, as set forth on Schedule
2.1(o);
(p) all
rights of Seller pursuant to any and all guaranties, warranties, indemnities
and
other similar rights in favor of Seller with respect to the items described
in
Sections 2.1(a)-(o) above.
Section
2.2 Excluded
Assets
Notwithstanding
anything to the contrary contained in this Agreement, Seller shall retain
and
not transfer, and Purchaser shall not purchase or acquire, the following
assets
(collectively, the “Excluded Assets” :
(a) all
assets, rights and licenses not related exclusively to the CRM
Division;
(b) all
cash, cash equivalents and similar type investments, such as certificates
of
deposit, treasury bills and other marketable securities;
(c) all
notes receivable;
(d) all
proposals, RFP’s, correspondence, proof of concept materials, evaluations or any
other materials prepared exclusively in connection with the sale of CRM Products
to Starscape and, subject to the provisions of Section 6.11 below, all fees
or
similar payments arising from the prospective sale of the CRM Products to
Starscape;
(e) all
books and records constituting Seller’s corporate records, such as minute books,
seals and similar items;
(f) all
insurance policies and all rights to causes of action, lawsuits, claims and
demands, rights of recovery and set-off, and proceeds under or with respect
to
insurance policies;
(g) all
rights to causes of action, lawsuits, claims and demands of any nature available
or being pursued by Seller with respect to the Excluded Assets or the Excluded
Liabilities;
(h) all
right, title and interest of the Seller in and to prepaid Taxes related to
the
CRM Division, any claims for any refund, rebate or abatement with respect
to
Taxes related to the CRM Division for any period or portion thereof through
the
Closing Date and any interest payable with respect thereto; and
(a) the
other assets, rights and licenses listed or described on Schedule
2.2(j).
Section
2.3 Assumption
of Certain Liabilities
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On
the terms and subject to the conditions set forth herein, Purchaser will
assume
and agree to satisfy and discharge or perform when due only the following
liabilities and obligations of Seller (collectively, the “Assumed
Liabilities”):
(b) liabilities
and obligations arising under the Assumed Contracts to the extent that the
rights and benefits of Seller thereunder are after the Closing Date, subject
to
Section 2.5 hereof, effectively transferred or assigned to Purchaser;
and
(b) all
product warranty, repair, maintenance, service or support obligations relating
to the Acquired Assets or the CRM Products and identified on Schedule
2.3(b) hereof, and liabilities arising thereunder or relating
thereto.
Section
2.4 Excluded
Liabilities
With
the
exception of the Assumed Liabilities, Purchaser shall not, by execution and
performance of this Agreement or otherwise, assume or otherwise be responsible
for any debt, liability, obligation or commitment of any nature of Seller,
whether relating to the CRM Division, any of Seller's other assets, operations,
businesses or activities, or claims of such liability or obligation, matured
or
unmatured, liquidated or unliquidated, fixed or contingent, or known or unknown,
whether arising out of occurrences prior to, at or after the Closing Date
(the
“Excluded Liabilities”). Without limiting the foregoing, the
Excluded Liabilities shall include:
(a) any
liability with respect to any employee plan benefit plan or any other obligation
of Seller for payments to CRM Division Employees accrued by Seller at any
time
up to (but excluding) the Closing Date;
(b)
any liability of Seller for Taxes, including, but not limited to, all
liabilities for or in respect of any Taxes for all periods ending on or prior
to
the Closing Date, excluding those Taxes that are the responsibility of Buyer
pursuant to Section 6.7;
(c)
any liability of Seller relating to the Excluded Assets.
Section
2.5 Inability
to Assign Assumed Contracts
Notwithstanding
anything to the contrary contained in this Agreement to the extent that the
sale, assignment, transfer, conveyance or delivery to Purchaser of any Assumed
Contract or Personal Property Lease is prohibited by any Law or would require
any consent or approval which shall not have been obtained prior to the Closing
(after Seller’s and Purchaser’s reasonable efforts to obtain them), this
Agreement shall not constitute a sale, assignment, transfer, conveyance or
delivery thereof. Any assumption by Purchaser of obligations
thereunder in connection with any Assumed Contract which shall require the
consent, approval or novation of any third party shall be made subject to
such
consent, approval or novation being obtained. Both prior to and
following the Closing, the parties shall use their reasonable efforts and
cooperate with each other to obtain promptly such consents and approvals
that
have not yet been obtained; provided, however, that Purchaser
shall not be required to pay any consideration therefore. Pending the
receipt of such consents and approvals, the parties shall use their commercially
reasonable efforts and cooperate with each other to provide to Purchaser
(to the
extent permitted by Law) the benefits of use of the Assumed Contract in question
and, provided Purchaser receives a benefit of use thereof, Purchaser shall
pay
or satisfy the Assumed Liabilities, if any, corresponding
thereto. Once such consents and approvals are obtained, Seller shall
as soon as possible
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thereafter
assign, transfer, convey and deliver such Assumed Contract to Purchaser for
no
additional consideration. To the extent that any such Assumed
Contract cannot be transferred or the benefits of use of any such Assumed
Contract cannot be provided to Purchaser following the Closing, then Purchaser
and Seller shall enter into such arrangements for no additional consideration
from Purchaser (including subleasing or subcontracting to the extent permitted)
to provide Purchaser the economic (taking into account tax costs and benefits)
and operational equivalent of obtaining such consents and
approvals.
Section
2.6 Purchase
Price
Subject
to the terms and conditions of this Agreement, in consideration for the Acquired
Assets, Purchaser shall assume the Assumed Liabilities and Purchaser shall
pay
to Seller an aggregate amount equal to the sum of (i) One Hundred Dollars
($100.00) and (ii) all revenues, royalties, fees or similar payments arising
from the prospective sale of CRM Products to Starscape, up to maximum amount
of
$800,000 (including for the purposes of such calculation, all amounts received
by Seller from Starscape prior to the Closing) (the “Purchase
Price”).
Section
2.7 Allocation
of Purchase Price for Tax Purposes
Prior
to
the Closing, Seller and Purchaser will prepare a mutually agreed upon schedule
setting forth the portion of the purchase price allocated to assets that
comprise the Acquired Assets (the “Purchase Price Allocation
Schedule”). The parties agree that the Purchase Price Allocation
Schedule shall be used by all parties for purposes of complying with Section
1060 of the Code and the purchase price allocation schedule in respect of
the
Acquired Assets to be filed on Internal Revenue Service Form 8594 shall reflect
and be consistent with the Purchase Price Allocation
Schedule. Purchaser and Seller agree to (i) prepare and file each of
their respective Tax Returns on a basis consistent with such allocation
schedules and (ii) unless otherwise required by applicable Law, take no position
inconsistent with such allocation schedules on any applicable Tax Return,
in any
audit or proceeding before any Tax Authority, in any report made for Tax,
financial accounting, or for any other purpose.
ARTICLE
III
THE
CLOSING
Section
3.1 The
Closing
Upon
the
terms and subject to the conditions of this Agreement, the consummation of
the
transactions contemplated by this Agreement (the “Closing”) shall take
place at the offices of ▇▇▇▇▇▇▇▇, LLC, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ at 10:00 a.m., Pacific time, on a date to be
specified by the parties, which shall be no later than the second Business
Day
after satisfaction or waiver of all of the conditions set forth in Article
VII of this Agreement, unless another time, date or place is agreed to in
writing by the parties hereto (the “Closing Date”).
Section
3.2 Deliveries
by Seller
At
the
Closing, Seller shall deliver or cause to be delivered to Purchaser (unless
previously delivered), the following:
(a) the
books, files and other records of Seller referred to in Section
2.1(f);
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(b) a
duly executed ▇▇▇▇ of sale (the “▇▇▇▇ of Sale”), substantially in the
form of Exhibit D hereto, transferring the Acquired Assets (other than
the Assigned Intellectual Property Rights, which will be transferred to
Purchaser pursuant to the IP Agreement) to Purchaser free and clear of all
Liens;
(c) the
IP Agreement duly executed by Seller;
(d) the
Sublease duly executed by Seller;
(e) the
Transition Services Agreement duly executed by Seller;
(f) subject
to the provisions of Section 2.5, duly executed assignments, in form and
substance reasonably acceptable to Purchaser, transferring to Purchaser all
Assumed Contracts;
(g) all
other duly executed conveyance documents reasonably necessary to transfer to
Purchaser the Acquired Assets;
(h) the
certificate of Seller’s officer referenced in Section 7.2(b)
hereof;
(i) such
Lien releases, pay-off letters and UCC-3 termination statements as may be
necessary to evidence the release and termination of any Liens on the
Acquired Assets; and
(j) an
opinion, addressed to Purchaser and dated the Closing Date, from ______________,
counsel to Seller, in substance and form reasonably satisfactory to the
Purchaser.
Section
3.3 Deliveries
by Purchaser
At
the
Closing, Purchaser shall deliver or cause to be delivered to Seller (unless
previously delivered), the following:
(a) the
Purchase Price, in immediately available funds;
(b) the
undertaking and instrument of assumption (the “Undertaking and Instrument of
Assumption”) substantially in the form of Exhibit E attached
hereto, evidencing the assignment by Seller and the assumption by Purchaser
of
the Assumed Liabilities;
(c) the
IP Agreement duly executed by Purchaser;
(d) the
Sublease duly executed by Purchaser;
(e) the
Transition Services Agreement duly executed by Purchaser;
(f) subject
to the provisions of Section 2.5, duly executed assignments, in
form and substance reasonably acceptable to Seller, transferring to Purchaser
all Assumed Contracts; and
(g) the
certificate of Purchaser’s officer referenced in Section 7.3(b)
hereof.
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ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES OF SELLER
Except
for matters disclosed in the corresponding section of the disclosure schedule
prepared by Seller and delivered by Seller herewith (the “Seller Disclosure
Schedule”), Seller represents and warrants to Purchaser as of the date
hereof and as of the Closing Date as follows:
Section
4.1 Organization,
Standing and Power
Seller
is
a corporation duly organized, validly existing and in good standing under
the
Laws of the State of Delaware. Seller has the requisite corporate
power and authority to own, lease and operate the Acquired Assets and the
CRM
Division as now being conducted, and to perform its obligations under this
Agreement and the Ancillary Agreements. Seller is duly qualified to
do business and is in good standing as a foreign corporation in each
jurisdiction in which its failure to be so qualified or in good standing
would
reasonably be expected to have a Material Adverse Effect on the CRM
Division. Seller is not in violation of any of the provisions of its
Certificate of Incorporation or Bylaws.
Section
4.2 Authority;
No Conflicts
(a) Seller
has the requisite corporate power and authority to enter into this Agreement
and
the Ancillary Agreements and to consummate the transactions contemplated
hereunder and thereunder. The execution and delivery of this
Agreement and the Ancillary Agreements and the consummation of the transactions
contemplated hereby and thereby have been duly authorized by all necessary
corporate action on the part of Seller.
(b) This
Agreement has been duly executed and delivered by Seller and constitutes
the
valid and binding obligations of Seller enforceable against Seller in accordance
with its terms, except to the extent that enforceability may be limited by
the
effect, if any, of any applicable bankruptcy, reorganization, insolvency,
moratorium or other Laws affecting the enforcement of creditors’ rights
generally or any general principles of equity, regardless of whether such
enforceability is considered in a proceeding at law or in equity.
(c) Except
as disclosed in Schedule 4.2(c), neither the execution and delivery by
Seller of this Agreement and the Ancillary Agreements nor the consummation
of
the transactions contemplated hereby or thereby will conflict with, or result
in
any breach or violation of, or default under (with or without notice or lapse
of
time, or both), or give rise to a right of termination, cancellation or
acceleration of any obligation or loss of any benefit under (i) any provision
of
the Articles of Incorporation or Bylaws, (ii) any material contract, agreement
or understanding to which Seller is a party or to which any of its material
properties or assets is bound or (iii) any material permit, authorization,
concession, franchise, license, writ or Law of any Governmental Entity
applicable to Seller or any of its material properties or assets, except,
in the
case of clauses (ii) and (iii) above, any such conflicts, breaches, violations
or defaults, which would not reasonably be expected to have a Material Adverse
Effect on the CRM Division or that would reasonably be expected to prevent
or
materially delay the consummation by Seller of the transactions contemplated
by
this Agreement and the Ancillary Agreements. Except as disclosed in
Schedule 4.2(c), to the Knowledge of Seller, no notice to, filing with,
and no permit, authorization, consent or approval of, any Governmental Entity,
or any other Person is necessary for the execution and delivery of this
Agreement and the Ancillary Agreements by Seller or the consummation by Seller
of the transactions contemplated by this Agreement or the Ancillary
Agreements.
Section
4.3 Litigation
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To
Seller’s Knowledge, there is no private or governmental action, suit,
proceeding, claim or investigation pending before any agency, court or tribunal,
foreign or domestic, or threatened against Seller in connection with the
CRM
Division or the Acquired Assets or which would reasonably be expected to
prevent
or materially delay the consummation by Seller of the transactions contemplated
by this Agreement and the Ancillary Agreements.
Section
4.4 Title to
Property
Except
as
disclosed in Schedule 4.4, the Seller has good and marketable title to
all tangible Acquired Assets, free and clear of any and all
Liens. The Acquired Assets, together with the intellectual property
rights licensed pursuant to the IP Agreement and the services and arrangements
described in the Transition Services Agreement, comprise all assets and services
required for the continued conduct of the CRM Division by the Purchaser as
now
being conducted.
Section
4.5 Intellectual
Property
(a) Noninfringement.
(i) The
Seller Disclosure Schedule includes a list of: (A) all written
allegations, received by Seller that the Acquired Assets infringe or
misappropriate the intellectual property rights of any third party; and (B)
any
written opinions of counsel relating thereto delivered to
Seller.
(ii) The
Acquired
Technology developed by Seller does not infringe or misappropriate or made
any
unlawful use of, any Proprietary Asset owned or used by any other
Person.
(iii) To
the
Seller’s Knowledge, no other Person is infringing, misappropriating or making
any unlawful use of, and no Proprietary Asset owned or used by any other
Person
infringes or conflicts with, any Assigned Intellectual Property
Rights.
(b) Ownership.
Seller is the sole owner of the Assigned Intellectual Property
Rights.
(c) Validity. No
written notices have been received alleging that the Assigned Intellectual
Property Rights are invalid or unenforceable.
(d) Confidentiality. No
trade secrets within the Assigned Intellectual Property Rights have been
disclosed to a third party other than pursuant to written non-disclosure
agreements. Schedule 4.5 contains a complete and correct list
of all non-disclosure agreements pursuant to which trade secrets within the
Assigned Intellectual Property Rights have been disclosed to third
parties.
(e) No
Restrictions. There are no settlements, consents, or judgments between
Seller and a third party that: (i) restrict the Purchaser’s right to
use any of the Assigned Intellectual Property Rights; (ii) restrict the
distribution or sale of the CRM Products in order to accommodate a third
party’s
Intellectual Property Rights; or (iii) permit third parties to use any of
the
Assigned Intellectual Property Rights.
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Section 4.6 Territorial
Restrictions.
Seller
is
not restricted by any written agreement or understanding with any other Person
from carrying on the business conducted by the CRM Division anywhere in the
world. Purchaser, solely as a result of its purchase of the Acquired
Assets from Seller pursuant hereto and the assumption of the Assumed
Liabilities, will not thereby become restricted in carrying on any business
anywhere in the world.
Section
4.7 Customers.
Seller
has not received any notice or
has any reason to believe that any significant customer of the CRM Division
has
ceased, or will cease, to use the products, goods or services of the CRM
Division.
Section
4.8 Assumed
Contracts.
Seller
has delivered to Buyer complete
and correct copies of all Assumed Contracts, together with all amendments
thereto, and accurate descriptions of all material terms of all oral Assumed
Contracts. All Assumed Contracts are in full force and effect and
enforceable against each party thereto. There does not exist under
any Assumed Contract any event of default or event or condition that, after
notice or lapse of time or both, would constitute a violation, breach or
event
of default thereunder on the part of Seller or, to the best knowledge of
Seller,
any other party thereto except as set forth in
Schedule 4.8.
Section
4.9 Taxes
Seller
has (A) filed with the
appropriate taxing authorities all Tax Returns relating to the Acquired Assets
or the CRM Division required to be filed for any period ending on or before
the
Closing Date (or are properly on extension), and all such filed Tax Returns
are
true, correct and complete in all material respects, and (B) paid in full
all
Taxes shown to be due on such Tax Returns, together with any penalties or
fines
due in connection therewith. There are no liens for Taxes upon the
Acquired Assets except for statutory liens for current Taxes not yet due
and
payable. Seller will file appropriate Tax Returns for any period
ending on or before the Closing Date, and pay any Taxes for such periods
when
due. Seller has not received any outstanding notice of audit and is
not undergoing any audit of Tax Returns relating to the Acquired Assets or
the
CRM Division or received any notice of deficiency or assessment from any
taxing
authority with respect to liability for Taxes relating to the Acquired Assets
or
the CRM Division which has not been fully paid or finally
settled. There have been no waivers of statutes of limitations by
Seller with respect to any Tax Returns relating to the Acquired Assets or
the
CRM Division. Seller has complied in all material respects with all
applicable laws, rules and regulations relating to the payment and withholding
of Taxes and has withheld all amounts required by law to be withheld from
the
wages or salaries of employees and independent contractors of the CRM Division,
and is not liable for any Taxes with respect to the employees and independent
contractors of the CRM Division for failure to comply with such laws, rules
and
regulations.
Section
4.10 Brokers’
and Finders’
Fees
Seller
has not incurred, nor will it incur, directly or indirectly, any liability
for
brokerage or finders’ fees or agents’ commissions or investment bankers’ fees or
any similar charges in connection with this Agreement or any transaction
contemplated hereby that will be charged to the CRM Division.
Section
4.11 Board
Approval
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Seller’s
board of directors has adopted and approved this Agreement, the IP Agreement
and
the Acquisition, and such approval has not been amended, rescinded or
modified.
ARTICLE
V
cccccccccREPRESENTATIONS
AND WARRANTIES OF PURCHASER
Purchaser
represents and warrants to
Seller as of the date hereof and as of the Closing as follows:
Section
5.1 Organization,
Standing and Power
Purchaser
is a limited liability company duly organized, validly existing and in good
standing under the laws of the State of Colorado. Purchaser has the
requisite power to own its properties and to carry on its business as now
being
conducted. Purchaser is duly qualified to do business and is in good
standing in each jurisdiction in which the failure to be so qualified and
in
good standing would materially delay the consummation of the transactions
contemplated by this Agreement and the Ancillary Agreements by
Purchaser. Purchaser is not in violation of any of the provisions of
its Articles of Organization or Operating Agreement.
Section
5.2 Authority;
No Conflicts
(a) Purchaser
has the requisite power and authority to enter into this Agreement and the
Ancillary Agreements and to consummate the transactions contemplated hereby
and
thereby. The execution and delivery of this Agreement and the
Ancillary Agreements, and the consummation of the transactions contemplated
hereby and thereby have been duly authorized by all necessary action on the
part of Purchaser.
(b) This
Agreement has been duly executed and delivered by Purchaser and constitutes
the
valid and binding obligations of Purchaser enforceable against Purchaser
in
accordance with its terms, except to the extent that enforceability may be
limited by the effect, if any, of any applicable bankruptcy, reorganization,
insolvency, moratorium or other Laws affecting the enforcement of creditors’
rights generally or any general principles of equity, regardless of whether
such
enforceability is considered in a proceeding at law or in equity.
(c) Neither
the execution and delivery by Purchaser of this Agreement and the Ancillary
Agreements nor the consummation of the transactions contemplated hereby or
thereby will conflict with, or result in any violation of, or default under
(with or without notice or lapse of time, or both) any provision of the
Articles of Organization or Operating Agreement, or other equivalent charter
documents, as applicable, of Purchaser.
Section
5.3 Litigation
To
Purchaser’s Knowledge, there is no private or governmental action, suit,
proceeding, claim or investigation pending before any agency, court or tribunal,
foreign or domestic, or threatened against Purchaser which would reasonably
be
expected to have a Material Adverse Effect on Purchaser or prevent or materially
delay the consummation by Purchaser of the transactions contemplated by this
Agreement and the Ancillary Agreements.
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Section
5.4 Brokers’
and Finders’ Fees
Purchaser
has not incurred, nor will it incur, directly or indirectly, any liability
for
brokerage or finders’ fees or agents’ commissions or investment bankers’ fees or
any similar charges in connection with this Agreement or any transaction
contemplated hereby.
Section
5.5 Funds
Purchaser
has access to adequate funds to permit Purchaser to support operations and
to
aggressively pursue completion of the Starscape customer acquisition and
pay the
Purchase Price.
Section
5.6 Purchaser
Investigation
Purchaser
has conducted (with the assistance of its representatives and advisers to
the
extent Purchaser has deemed appropriate) its own independent investigation,
review and analysis of Seller, the CRM Division, the CRM Products and the
Acquired Assets. Purchaser acknowledges that: (i) it and its
representatives and advisers have been provided adequate access to the
personnel, properties, premises and records of Seller, the CRM Division and
the
CRM Products for purposes of such investigation, review and analysis and
(ii)
Purchaser is knowledgeable about the CRM Products and the industries in which
Seller operates the CRM Division, and is capable of evaluating the merits
and
risks of the transactions contemplated by this Agreement and the Ancillary
Agreements. Purchaser acknowledges that it has relied solely upon the
aforementioned investigation, review and analysis and not on any representation
or warranty of Seller or any Person acting on behalf of Seller (except the
specific representations and warranties of Seller set forth in Article IV
of
this Agreement).
ARTICLE
VI
CERTAIN
COVENANTS
Section
6.1 Conduct
of
the CRM Division
Except
(1) as contemplated by this Agreement, (2) as set forth in the Seller Disclosure
Schedule, or (3) as agreed by Seller and Purchaser in writing, during the
period
from the date of this Agreement and continuing until the earlier of the
termination of this Agreement or the Closing:
(a) Seller
shall use its reasonable efforts to operate the CRM Division in the usual,
regular and ordinary course in substantially the same manner as heretofore
conducted, to keep available the services of the key employees of the CRM
Division and to preserve the relationships of the CRM Division with customers,
suppliers, distributors, licensors, licensees, and others having business
dealings with it; and
(b) Seller
agrees to keep in full force and effect insurance comparable in amount and
scope
to the coverage maintained on the CRM Division and the Acquired Assets by
it (or
on behalf of it) on the date hereof.
Section
6.2 Access to
Information
(a) Seller
shall afford Purchaser and its accountants, counsel and other representatives,
reasonable access during normal business hours during the period prior to
the
Closing to (i) the Acquired Assets and (ii) such other information concerning
the CRM Division and the CRM Products as Purchaser may reasonably
request.
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(b) Subject
to compliance with applicable Law, from the date hereof until Closing, Seller
shall confer on a regular basis with one or more representatives of Purchaser
to
report operational matters of materiality and the general status of ongoing
operations.
(c) Seller
shall give prompt notice to Purchaser upon learning of (a) the occurrence
or non-occurrence of any event whose occurrence or non-occurrence, as the
case
may be, would reasonably be expected to cause either (i) any representation
or
warranty contained in this Agreement to be untrue or inaccurate in any material
respect at the date hereof or at the Closing or (ii) any condition set forth
in
Article VII to be unsatisfied at the Closing Date (except to the extent
it refers to a specific date) and (b) any material failure of Seller, as
the
case may be, to comply with or satisfy any covenant, condition or agreement
to
be complied with or satisfied by it hereunder.
(d) Seller
may from time to time prior to or on the Closing Date by notice in accordance
with this Agreement supplement or amend the Seller Disclosure Schedule to
(i)
correct any matter that would otherwise constitute a breach of any
representation, warranty or covenant contained in this Agreement. If
such a supplement to or amendment of the Seller Disclosure Schedule materially
and adversely affects the benefits to be obtained by Purchaser under this
Agreement, then Purchaser shall have the right to terminate this Agreement,
but
such right of termination shall be Purchaser’s sole remedy relating to matters
set forth in amendments or supplements to the Seller Disclosure Schedule
unless
the existence of such matters were known to Seller prior to the execution
hereof
and Seller willfully failed to include such matters in the Seller Disclosure
Schedule, in which event Purchaser shall be entitled to recover its actual
out
of pocket expenses incurred during the period commencing on the execution
date
hereof and ending on the effective date of termination of this
Agreement. Notwithstanding any other provision of this Agreement to
the contrary, the Seller Disclosure Schedule and the representations and
warranties made by Seller shall be deemed for all purposes to include and
reflect such supplements and amendments as of the date hereof and at all
times
hereafter, including the Closing Date.
Section
6.3 Public
Disclosure; Confidentiality
(a) Purchaser
and Seller shall, prior to Closing, consult with each other before issuing
any
press release, making any other public statement or making any other disclosure
to any third party (whether or not in response to an inquiry) regarding the
existence or terms of this Agreement or the Ancillary Agreements and the
transactions contemplated hereby and thereby, and, prior to the Closing,
neither
Purchaser nor Seller shall, and each shall use their respective reasonable
efforts to ensure that their respective representatives and advisors shall
not,
issue any such press release or make any such statement or disclosure without
the prior written approval of the other party, except as may be required by
Law, in which case the disclosing party shall provide to the other party
to this
Agreement such advance notice as is reasonable under the circumstances prior
to
the making of, and shall consult with the other party regarding the form
of, any
such required disclosure. Notwithstanding the foregoing, Purchaser
and Seller may reveal the existence and terms of this Agreement and the
Ancillary Agreements to their respective representatives and advisors (i)
who
need to know the terms of this Agreement or the Ancillary Agreements, as
the
case may be, for the purpose of evaluating the Acquisition, (b) who are informed
of the confidential nature of this Agreement and the Ancillary Agreements
and
(c) who agree to act in accordance with the terms of this Section
6.3.
(b) From
the date hereof and after the Closing, Seller and its respective Affiliates
will
hold, and will use their reasonable best efforts to cause their respective
representatives to hold, in confidence, unless compelled to disclose pursuant
to
any applicable Law, all confidential documents and information relating to
the
CRM Division and the CRM Products, except to the extent that such information
can be shown to have been (i) previously known on a nonconfidential basis
by
such party or (ii) in the public domain through no fault of Seller and its
Affiliates.
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Section
6.4 Consents
Each
of
Purchaser and Seller shall promptly apply for or otherwise seek, and use
their
reasonable efforts to obtain, all consents, waivers, approvals assignments
and
novations required to be obtained to consummate the transactions contemplated
by
this Agreement and the Ancillary Agreements.
Section
6.5 Legal
Requirements
Subject
to the terms and conditions herein provided, each of Purchaser and Seller
will
take all reasonable actions necessary to comply in all material respects
promptly with all legal requirements which may be imposed on it with respect
to
the consummation of the transactions contemplated by this Agreement and the
Ancillary Agreements and will take all reasonable actions necessary to obtain
(and will cooperate with the other party hereto in obtaining) any consent,
approval, order or authorization of, or any registration, declaration or
filing
with, any Governmental Entity or other Person, required to be obtained or
made
by it in connection with the taking of any action contemplated by this Agreement
or the Ancillary Agreements.
Section
6.6 Reasonable
Efforts and Further Assurances
Prior
to
the Closing, upon the terms and subject to the conditions of this Agreement,
Purchaser and Seller agree to use their reasonable efforts to take, or cause
to
be taken, all actions, and to do, or cause to be done, all things necessary,
proper or advisable (subject to any applicable Laws) to consummate the
Acquisition as promptly as practicable. Following the Closing, each
of Seller and Purchaser shall cooperate with each other and shall execute
and
deliver such additional instruments or documents, and take such other actions
as
shall be necessary, or as such other party reasonably requests, to evidence,
confirm or give effect to the transactions contemplated by this Agreement
and
the Ancillary Agreements.
Section
6.7 Tax
Matters
(a) Responsibility
for the preparation and filing of Tax Returns and the payment of Taxes incurred
as a result of the sale and transfer of the Acquired Assets and the assumption
of the Assumed Liabilities hereunder will be as follows:
(i) Purchaser
and
Seller will each prepare and file such Tax Returns as may be, respectively,
required of them in connection with all excise, sales, use, value added,
transfer, stamp, documentary, filing, recordation or other similar Taxes
incurred as a result of the sale and transfer of the Acquired Assets and
the
Assumed Liabilities hereunder in accordance with the form of the Acquisition
or
as may otherwise be required by a Governmental Entity; provided,
however, that the cost of all such Taxes will be borne by
Seller.
(ii) Seller
will
be responsible for the preparation and filing of any required income Tax
Returns
and the payment of all of Seller’s income Taxes incurred as a result of the sale
and transfer of the Acquired Assets and the Assumed Liabilities
hereunder.
(iii) Seller
will
be responsible for the timely payment of, and shall indemnify and hold harmless
Purchase against, all sales (including, without limitation, bulk sales),
use,
value added, documentary, stamp, gross receipts, registration, transfer,
conveyance, excise, recording, license and other similar Taxes and
fees
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(“Transfer
Taxes”), arising out of or in connection with or attributable to the
transactions effected pursuant to this Agreement.
(iv) Seller
will
be responsible for the preparation and filing of all Tax Returns and the
payment
of all Taxes relating to the Acquired Assets and the Assumed Liabilities
for the
period up to and including the Closing Date.
(v) For
the
period after the Closing, Purchaser will be responsible for the preparation
and
filing of all Tax Returns and the payment of all other Taxes of any nature
incurred or relating to the Acquired Assets or the Assumed
Liabilities.
(b) Purchaser
and Seller will provide each other with such cooperation and information
as
either of them reasonably may request of the other in connection with filing
any
Tax Return, amended return or claim for refund, determining a liability for
Taxes or a right to refund of Taxes or preparation for litigation or
investigation of claims or in connection with any audit. Each of
Purchaser and Seller will retain all Tax Returns, schedules and work papers
and
all material records or other documents relating to Tax matters concerning
the
CRM Products for the taxable year of Seller ending after the Closing Date
and
for all previous years, until the expiration of the statute of limitations
of
the taxable years to which such Tax Returns and other documents relate (and,
to
the extent notified by the other party in writing, any extensions
thereof). Any information obtained under this Section 6.7(b)
will be kept confidential as contemplated by Section 6.3, except as may
be otherwise necessary in connection with the filing of Tax Returns or claims
for refund or in conducting an audit or other proceeding related to the payment
of Taxes.
(c) If
in order to prepare proper documents required to be filed with Governmental
Entities or its financial statements, it is necessary that either Purchaser
or
Seller be furnished with additional information relating to the Acquired
Assets
or the Assumed Liabilities and such information is in the possession of the
other party, such other party will use its reasonable efforts to furnish
such
information in a timely manner to the party reasonably requiring such
information, at the cost and expense of the party requiring such
information.
(d) Seller
and Purchaser will file or provide to each other such Tax Returns, forms
and
other documents as may be required or necessary to minimize or obtain an
exemption from any excise, sales, use, value added, transfer, stamp,
documentary, filing, recordation or other similar Taxes that arise with respect
to the Acquired Assets or the Assumed Liabilities. Without limiting
the generality of the foregoing, on or before the Closing Date Purchaser
will
provide Seller with any required sales Tax exemption certificates of Purchaser
required in connection with the Acquisition.
(e) Notwithstanding
any other provision of this Section 6.7, no party will have access to the
other party’s federal, state or foreign income Tax Returns or books and records
relating thereto.
Section
6.8 Employees
(a) Purchaser
shall offer employment to the employees of Seller listed on Schedule 6.8
(the “CRM Division Employees”). Employment by
Purchaser of CRM Division Employees who accept Purchaser’s offer of employment
shall commence as of the Closing Date. Any CRM Division Employees who
do not accept Purchaser's offer of employment shall remain employees of Seller
subject to the existing terms and conditions of such employment.
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(b) Seller
and Purchaser acknowledge and agree that all provisions contained in this
Agreement with respect to CRM Division Employees are included for the sole
benefit of Seller and Purchaser and shall not create any right (i) in any
other
Person, including any such CRM Division Employee, or (ii) to continued
employment with Purchaser or Seller.
Section
6.9 Non-solicitation
From
the
date hereof until the third anniversary of the Closing Date, each of Seller
and
Purchaser agree that, except as contemplated by Section 6.8(a) above,
without the written consent of the other party, it shall not, directly or
indirectly,
(a) induce,
solicit or hire,
(b) attempt
to induce, solicit or hire or
(c) aid
or assist any other Person to induce, solicit or hire,
any
person who is at the time an employee of the other Party, nor shall it induce
or
encourage any such person to leave the employ of the other party.
Section
6.10 Waiver
of
Bulk Sales Requirement
Each
of
the parties waives compliance with any applicable bulk sales laws, including
the
Uniform Commercial Code Bulk Transfer provisions.
Section
6.11 Starscape
Customer Acquisition.
(a) Seller
hereby agrees to provide Purchaser with a copy of all RFP’s, proof of concept
documents, purchase orders, or other customer acquisition documents relating
to
Starscape. Purchaser hereby agrees that it shall use its reasonable efforts
to consummate the sale of the CRM Products to Starscape on behalf of Seller
on
reasonable terms and conditions. Provided that Purchaser has
not defaulted in the performance of its obligations herein relating to the
exercise of reasonable efforts to consummate such sale, Purchaser shall have
no
liability to Seller in the event that the sale of CRM Products to Starscape
is
not consummated and shall have no obligation to Seller to pay any additional
amounts to Seller on account thereof.
(b) In
consideration for the services to be provided by Purchaser, Purchaser shall
be
entitled to retain, on account of its sales efforts and maintenance obligations,
all amounts received from Starscape in excess of 800,000, inclusive of any
license payments, royalties, fees or similar payments, arising from the
consummation of the sale of CRM Products to
Starscape. Purchaser shall instruct Starscape to pay over to
Seller all amounts payable as a result of such sale promptly as and when
they
fall due. In the event that Starscape pays to Purchaser, or Purchaser
otherwise receives, any such royalties or other fees prior to achievement
of the
$800,000 threshold, Purchaser shall promptly pay all such royalties and other
fees paid to or otherwise received by Purchaser to Seller. Purchaser
shall be entitled to collect any amounts in excess of
$800,000.
(c) Purchaser
hereby agrees that from and after the Closing Date: (i) all product warranty,
repair, service, support and maintenance obligations relating to the CRM
Products sold to Starscape, and all liabilities arising thereunder or related
thereto, shall, as of the Closing Date, be the sole and exclusive responsibility
of Purchaser; (ii) Seller shall have no further obligation or liability in
respect
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thereof;
and (iii) Purchaser shall hold Seller harmless and indemnify Seller for any
and
all Damages incurred by Seller in connection with any such obligations or
liabilities.
(d) Nothing
contained herein shall obligate Purchaser to initiate any cause of action
or any
other collection activity or incur any expenses in enforcing the rights of
Seller in connection with the sale of the CRM Products to
Starscape.
ARTICLE
VII
CONDITIONS
TO THE CLOSING
Section
7.1 Conditions
to Obligations of Each Party to Effect the
Acquisition
The
respective obligations of each party to this Agreement to consummate and
effect
the Acquisition and the transactions contemplated by this Agreement shall
be
subject to the satisfaction at or prior to the Closing of each of the following
conditions, any of which may be waived, in writing, by agreement of all the
parties hereto:
(a) No
Injunctions or Restraints; Illegality. No temporary restraining
order, preliminary or permanent injunction or other order issued by any court
of
competent jurisdiction or other regulatory restraint or prohibition preventing
the consummation of the Acquisition shall be in effect, nor shall any proceeding
brought by an administrative agency or commission or other Governmental Entity
or instrumentality, domestic or foreign, seeking any of the foregoing be
pending; provided, however, that prior to asserting this
condition, each of the parties shall have used its reasonable efforts to
prevent
the entry of any such injunction or other order and to appeal as promptly
as
possible any such injunction or other order that may be entered. No
statute, rule, regulation or order shall have been enacted, entered or enforced,
which makes consummation of the transactions contemplated by this Agreement
and
the Ancillary Agreements illegal.
(b) Third
Party Consents. The consent or approval of those Persons whose
consent or approval shall be required in connection with the transactions
contemplated by this Agreement and the Ancillary Agreements shall have been
obtained in form and substance reasonably satisfactory to Purchaser and
Seller.
Section
7.2 Additional
Conditions to Obligations of Seller
The
obligations of Seller to consummate and effect the Acquisition and the
transactions contemplated by this Agreement shall be subject to the satisfaction
at or prior to the Closing of each of the following conditions, any of which
may
be waived, in writing, by Seller:
(a) Representations,
Warranties and Covenants. (i) The representations and warranties
of Purchaser in this Agreement shall be true and correct in all material
respects (except for such representations and warranties that are qualified
by
their terms by a reference to materiality or Material Adverse Effect which
representations and warranties as so qualified shall be true in all respects)
on
and as of the Closing Date as though such representations and warranties
were
made on and as of such date (except for such representations and warranties
which speak as of a particular time which representations and warranties
need be
true and correct only as of such time) and (ii) Purchaser shall have performed
and complied in all material respects with all covenants, obligations and
conditions of this Agreement required to be performed and complied with by
it as
of the Closing Date.
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(b) Closing
Deliveries. Purchaser shall have delivered to Seller all
instruments and documents required to be delivered by Purchaser under Section
3.3.
(c) Employment
Offers. Purchaser shall have provided offers of employment to all
CRM Division Employees in accordance with the requirements of Section
6.8.
Section
7.3 Additional
Conditions to the Obligations of Purchaser
The
obligations of Purchaser to consummate and effect the Acquisition and the
transactions contemplated hereby shall be subject to the satisfaction at
or
prior to the Closing of each of the following conditions, any of which may
be
waived, in writing, by Purchaser:
(a) Representations,
Warranties and Covenants. (i) The representations and
warranties of Seller in this Agreement shall be true and correct in all material
respects (except for such representations and warranties that are qualified
by
their terms by a reference to materiality or Material Adverse Effect which
representations and warranties as so qualified shall be true in all respects)
on
and as of the Closing Date as though such representations and warranties
were
made on and as of such date (except for such representations and warranties
which speak as of a particular time which representations and warranties
need be
true and correct only as of such time) and (ii) Seller shall have performed
and complied in all material respects with all covenants, obligations and
conditions of this Agreement required to be performed and complied with by
it as
of the Closing Date.
(b) Certificate
of Seller. Purchaser shall have received an officer’s certificate
certifying fulfillment of the conditions set forth in Section
7.3(a).
(c) Closing
Deliveries. Seller shall have delivered to Purchaser all
instruments and documents required to be delivered by Seller under Section
3.2.
Section
7.4 Frustration
of Conditions
Neither
Purchaser nor Seller may rely on the failure of any condition set forth in
this
Article VII to be satisfied if such failure was caused by such party’s
failure to comply with or perform any of its covenants or obligations set
forth
in this Agreement.
ARTICLE
VIII
TERMINATION,
AMENDMENT AND WAIVER
Section
8.1 Termination
At
any
time prior to the Closing this Agreement may be terminated:
(a) by
mutual consent of Purchaser and Seller;
(b) by
either Purchaser or Seller, if the Closing shall not have occurred on or
before
December 31, 2006 (the “Termination Date”), which right to terminate may
be exercised at any time thereafter and may not be waived except expressly
in
writing; provided, however, that the right to terminate this
Agreement under this Section 8.1(b) shall not be available to any party
whose action or failure to act has been the cause or resulted in the failure
of
the Acquisition to be consummated on or before such date and/or such action
or
failure to act constitutes a breach of this Agreement;
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(c) by
Purchaser, if it is not in material breach of its obligations under this
Agreement and its actions or failure to act have not been the cause or resulted
in the failure of the Acquisition to be consummated, if Seller shall breach
any
representation, warranty, obligation or agreement hereunder, or if any
representation or warranty of Seller shall have become untrue, in either
case
such that the conditions set forth in Section 7.3(a) would not be
satisfied as of the time of such breach or as of the time such representation
or
warranty shall have become untrue, and such breach shall not have been cured,
or
by its nature cannot be cured, within twenty (20) days following receipt
by
Seller of written notice of such breach;
(d) by
Seller, if it is not in material breach of its obligations under this Agreement
and its actions or failure to act have not been the cause or resulted in
the
failure of the Acquisition to be consummated, if Purchaser shall breach any
representation, warranty, obligation or agreement hereunder, or if any
representation or warranty of Purchaser shall have become untrue, in either
case
such that the conditions set forth in Section 7.2(a) would not be
satisfied as of the time of such breach or as of the time such representation
or
warranty shall have become untrue, and such breach shall not have been cured,
or
by its nature cannot be cured, within twenty (20) days following receipt
by
Purchaser, as the case may be, of written notice of such breach;
and
(e) by
Purchaser or Seller if any permanent injunction or other order of a court
or
other competent authority preventing the consummation of the Acquisition
shall
have become final and nonappealable.
Section
8.2 Effect of
Termination
In
the
event of termination of this Agreement as provided in Section 8.1, this
Agreement shall forthwith become void, and except as provided in Section
8.3, there shall be no liability or obligation on the part of Purchaser,
Seller or their respective officers, directors, stockholders, shareholders
or
Affiliates, except to the extent that such termination results from fraud;
provided that the provisions of Section 6.3 (Public Disclosure),
Section 6.8 (Confidentiality), this Section 8.2, Section
8.3 (Expenses) and Article X shall remain in full force and effect
and survive any termination of this Agreement.
Section
8.3 Expenses
Whether
or not the Acquisition is consummated, all costs and expenses arising out
of,
relating to or incidental to the discussion, evaluation, negotiation and
documentation of this Agreement and the Ancillary Agreements and the
transactions contemplated hereby and thereby (including reasonable fees and
expenses of legal counsel and financial advisors and accountants, if any)
(in
the aggregate, “Transaction Expenses”) shall be borne solely by the party
incurring such expense.
ARTICLE
IX
INDEMNIFICATION
Section
9.1 Indemnification
(a) Subject
to the limitations set forth in this Article IX and in Section
10.1, the Seller will defend, indemnify and hold harmless Purchaser, its
officers, directors, employees, agents, advisers, representatives and Affiliates
(collectively, the “Purchaser Indemnified Persons”) from and against, and
pay or reimburse the Purchaser Indemnified Persons for, any and all claims,
liabilities, obligations, losses, fines, costs, royalties, proceedings,
deficiencies or damages (whether absolute,
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22
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accrued,
conditional or otherwise and whether or not resulting from third party claims),
including out-of-pocket expenses and reasonable attorneys’ fees incurred in the
investigation or defense of any of the same or in asserting any of their
respective rights hereunder (collectively, “Damages”) resulting from or
arising out of:
(i) any
misrepresentation or breach of, or default in connection with, any of the
representations, warranties, covenants and agreements given or made by Seller
in
this Agreement (as modified by the Seller Disclosure Schedule or any other
Schedule to this Agreement), or in any exhibit or schedule to, or certificate
delivered in connection with, this Agreement;
(ii) any
and all Excluded Assets, Excluded Liabilities or Transaction Expenses of
Seller;
(iii) any
and all Taxes of Seller and its Affiliates not relating to or arising out
of the
CRM Division and expressly assumed by Purchaser hereunder;
(iv) any
and all liabilities in respect of employees arising prior to the Closing
Date.
(b) Subject
to the limitations set forth in this Article IX and in Section
10.1, the Purchaser will indemnify and hold harmless Seller and its
Affiliates and their respective officers, directors, agents and employees
(hereinafter referred to individually as a “Seller Indemnified
Person” and collectively as “Seller Indemnified Persons”),
from and against any and all Damages arising out of:
(i) any
misrepresentation or breach of, or default in connection with, any of the
representations, warranties, covenants and agreements given or made by Purchaser
in this Agreement, or in any exhibit or schedule to, or certificate delivered
in
connection with, this Agreement; or
(ii) from
and after the Closing Date, any and all Acquired Assets, Assumed Liabilities
or
Transaction Expenses of Purchaser.
(c) Notwithstanding
any other provision hereof, in no event shall either party be liable for
any
punitive, consequential, indirect, special or exemplary damages.
(d) The
amount of Damages for which the Purchaser Indemnified Persons may be indemnified
pursuant to this Agreement shall be reduced by (1) the amount of any insurance
proceeds payable to any Purchaser Indemnified Person with respect to such
Damages, (2) any indemnity, contribution or similar payment payable to any
Purchaser Indemnified Person and (3) an amount equal to the amount of any
Tax
benefits received by any Purchaser Indemnified Person attributable to such
Damages.
(e) Indemnification
pursuant to this Article IX shall be Purchaser’s sole and exclusive
remedy in connection with any breach by Seller of this Agreement or the
Ancillary Agreements, the Excluded Assets and the Excluded
Liabilities.
(f) Any
indemnification payment paid pursuant to this Article IX shall be treated
as an adjustment to the purchase price.
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Section
9.2 Claims
Procedure
(a) In
the event that an Indemnified Person seeks to exercise its rights to obtain
indemnification for Damages pursuant to the terms of Section 9.1 hereto,
Purchaser, in the case of a Purchaser Indemnified Person, shall deliver to
Seller, or Seller, in the case of a Seller Indemnified Person, shall deliver
to
Purchaser, a certificate signed by any officer of Purchaser or Seller, as
the
case my be, (an “Officer’s Certificate”) specifying in
reasonable detail: (i) the amount of Damages for which indemnification is
being
sought, (ii) the individual items included in the amount of Damages in such
claim, (iii) the identity of the Person for whom the claim is being made,
(iv)
the date (or dates) each part or item of Damages (x) was paid and the Person
to
whom such payment was made, (y) was properly accrued or (z) arose, (v) any
actions that, to the Knowledge of the party submitting the Officer’s
Certificate, have been taken to dispute the claim and (vi) the nature of
the
misrepresentation, breach of warranty or other reason set forth in Section
9.1(a) or 9.1(b) to which the Damages are
related.
(b) The
indemnifying party (an “Indemnifying Party”), shall have the right to
object to one or more of the claims set forth in any Officer’s Certificate
delivered by Purchaser or Seller, as the case may be to the Indemnifying
Party
by serving written notice thereof within fifteen (15) Business Days following
the delivery of such Officer’s Certificate, which notice shall specify in
reasonable detail the basis for such objection. In the event that the
Indemnifying Party does not object to a claim in accordance with the preceding
sentence by the close of business on the fifteenth (15th) Business Day following
receipt by the Indemnifying Party of the Officer’s Certificate, the Indemnifying
Party shall be deemed to have accepted and agreed to the claim set forth
in such
Officer’s Certificate, and shall be precluded from raising any objection thereto
following such date, and such claim shall be due and payable by the Indemnifying
Party as of the next Business Day.
(c) In
case the Indemnifying Party so objects in writing to any claim or claims
made in
any Officer’s Certificate, Purchaser, in the case of a Purchaser Indemnified
Party, or Seller, in the case of a Seller Indemnified Party, shall have fifteen
(15) days after receipt of an objection by the Indemnifying Party to respond
thereto in a written statement. If after such fifteen (15) day period
there remains a dispute as to any claims, the Indemnifying Party and Purchaser
or Seller, as the case may be, shall attempt in good faith for sixty (60)
days
to agree upon the rights of the respective parties with respect to each of
such
claims. If the Indemnifying Party and Purchaser or Seller, as the
case may be, should so agree, the claims set forth in such Officer’s
Certificate shall be modified as necessary to reflect such agreement, and
such claim shall be due and payable by the Indemnifying Party as of the next
Business Day.
(d) If
no such agreement can be reached after good faith negotiation, either the
Indemnifying Party or Purchaser or Seller, as the case may be, may, by written
notice to the other, demand arbitration of the matter unless the amount of
the
damage or loss is at issue in pending litigation with a third party, in which
event arbitration shall not be commenced until such amount is ascertained
or
both parties agree to arbitration; and in either such event the matter shall
be
settled by arbitration conducted by three arbitrators. Within twenty
(20) days after such written notice is sent, Purchaser or Seller, as the
case
may be, and the Indemnifying Party shall each select one arbitrator, and
the two
arbitrators so selected shall select a third arbitrator. The decision
of the arbitrators as to the validity and amount of any claim in such Officer’s
Certificate shall be binding and conclusive upon the parties to this
Agreement.
(e) Judgment
upon any award rendered by the arbitrators may be entered in any court having
jurisdiction. Any such arbitration shall be held in Colorado under
the commercial rules then in effect of the American Arbitration
Association. Each party shall bear its own expenses (including
attorneys’ fees and expenses) incurred in connection with any such
arbitration. The fees and expenses of
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24
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each
arbitrator and the administrative fee of the American Arbitration Association
shall be allocated by the arbitrator or arbitrators, as the case may be (or,
if
not so allocated, shall be borne equally by the parties to the
arbitration).
Section
9.3
Third-Party
Claims
In
the
event that a party becomes aware of a third-party claim which such party
believes give rise to indemnification under this Article IX, such party
shall promptly notify the Indemnifying Party of such claim, and the Indemnifying
Party shall be entitled, at their expense, to participate in any defense
of such
claim; provided, however, that the failure to give prompt notice
shall not affect the indemnification provided hereunder except to the extent
the
Indemnifying Party has been actually prejudiced as a result of such
failure. Purchaser, in the case of a Purchaser Indemnified Party, or
Seller, in the case of a Seller Indemnified Party, shall have the right in
its
sole reasonable discretion to settle any such claim; provided,
however, that neither Purchaser nor Seller, as the case may be,
may
effect the settlement of any such claim without the consent of the Indemnifying
Party, which consent shall not be unreasonably withheld. In the event
that the Indemnifying Party has consented to any such settlement, the
Indemnifying Party shall have no power or authority to object under any
provision of this Article IX to any claim by an Indemnified Party for
indemnity in the amount of such settlement.
ARTICLE
X
GENERAL
PROVISIONS
Section
10.1 Survival
The
representations, warranties, covenants and agreements of each of Purchaser
and
Seller contained in this Agreement shall survive until the first anniversary
of
the Closing Date, except for and to the extent the covenants and agreements
specifically call for action after the Closing Date. In no case shall
the termination of the representations, warranties, covenants and agreements
affect any claim for misrepresentation or breach thereof or default thereunder
if an Officer’s Certificate with respect to such misrepresentation, breach or
default is delivered in accordance with the requirements of Section 9.2
prior to such termination.
Section
10.2 Notices
All
notices and other communications hereunder shall be in writing and shall
be
deemed given if delivered personally or by commercial delivery service, or
mailed by registered or certified mail (return receipt requested), or sent
by
facsimile (which is confirmed), to the parties at the following address or
facsimile numbers (or at such other address or facsimile number for a party
as
shall be specified by like notice):
(a) if
to Purchaser, to:
CustomerSoft,
LLC
Address
_____________________________
Address
_____________________________
Fax:
________________________________
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25
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with a copy to:
(b) if
to Seller, to:
Premier
Data Service, Inc.
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Fax:
with
a copy to:
Address
_____________________________
Address
_____________________________
Fax:
________________________________
Section
10.3 Interpretation
When
a
reference is made in this Agreement to Schedules or Exhibits, such reference
shall be to a Schedule or Exhibit to this Agreement unless otherwise
indicated. The words “include,” “includes” and “including” when used
herein shall be deemed in each case to be followed by the words “without
limitation.” The phrase “made available” in this Agreement means that
the information referred to has been made available if requested by the party
to
whom such information is to be made available. The phrases “the date
of this Agreement”, “the date hereof”, and terms of similar import, unless the
context otherwise requires, shall be deemed to refer to [●],
2006. The meanings given to terms defined herein will be equally
applicable to both singular and plural forms of such terms. Except as
otherwise expressly provided herein, all references to “dollars” or “$” will be
deemed references to the lawful money of the United States of
America. The table of contents and headings contained in this
Agreement are for reference purposes only and shall not affect in any way
the
meaning or interpretation of this Agreement.
Section
10.4 Counterparts
This
Agreement may be executed in one or more counterparts, all of which shall
be
considered one and the same agreement and shall become effective when one
or
more counterparts have been signed by each of the parties and delivered to
the
other parties, it being understood that all parties need not sign the same
counterpart.
Section
10.5 Entire
Agreement; Nonassignability; Parties in Interest
This
Agreement and the documents and instruments and other agreements specifically
referred to herein or delivered pursuant hereto, including the Exhibits,
the
Schedules, including the Seller Disclosure Schedule (a) constitute the entire
agreement among the parties with respect to the subject matter hereof and
supersede all prior agreements and understandings, both written and oral,
among
the parties with respect to the subject matter hereof, (b) except by operation
of the Acquisition, shall not be assigned by operation of Law or otherwise
except as otherwise specifically provided, and (c) shall be
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26
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binding
upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
Section
10.6 Severability
In
the
event that any provision of this Agreement, or the application thereof, becomes
or is declared by a court of competent jurisdiction to be illegal, void or
unenforceable, the remainder of this Agreement will continue in full force
and
effect and the application of such provision to other Persons or circumstances
will be interpreted so as reasonably to effect the intent of the parties
hereto. The parties further agree to replace such void or
unenforceable provision of this Agreement with a valid and enforceable provision
that will achieve, to the extent possible, the economic, business and other
purposes of such void or unenforceable provision.
Section
10.7 Governing
Law
This
Agreement shall be governed by and construed in accordance with the laws
of the
State of Colorado without reference to such state’s principles of conflicts of
law. Each of the parties hereto irrevocably consents to the exclusive
jurisdiction of any court located within the States of Colorado, in connection
with any matter based upon or arising out of this Agreement or the matters
contemplated herein, and agrees that process may be served upon them in any
manner authorized by the laws of the States of Colorado for such Persons
and
waives and covenants not to assert or plead any objection which they might
otherwise have to such jurisdiction and such process.
Section
10.8 Rules of
Construction
The
parties hereto agree that they have been represented by counsel during the
negotiation, preparation and execution of this Agreement and, therefore,
waive
the application of any Law, regulation, holding or rule of construction
providing that ambiguities in an agreement or other document will be construed
against the party drafting such agreement or document.
Section
10.9 Specific
Performance
The
parties hereto agree that if any of the provisions of this Agreement were
not
performed in accordance with their specific terms or were otherwise breached,
irreparable damage would occur, no adequate remedy at law would exist and
damages would be difficult to determine, and that the parties shall be entitled
to specific performance of the terms hereof, in addition to any other remedy
at
law or equity.
Section
10.10 Amendment and
Waiver
The
parties hereto may cause this Agreement to be amended at any time by execution
of an instrument in writing signed on behalf of each of the parties
hereto. 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 parties hereto, (ii) waive any inaccuracies in the representations
and
warranties made to such party contained herein or in any document delivered
pursuant hereto and (iii) waive compliance with any of the agreements or
conditions for the benefit of such party contained herein. Any
agreement on the part of a party hereto to any such extension or waiver shall
be
valid only if set forth in an instrument in writing signed on behalf of such
party.
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27
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[Signature
page follows]
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28
--
IN
WITNESS WHEREOF, Seller and Purchaser have executed and delivered this Agreement
or have caused this Agreement to be executed and delivered by their respective
officers thereunto duly authorized, all as of the date first written
above.
|
[●]
|
[●]
|
|
By:___________________________________
|
By:___________________________________
|
|
Name:
|
Name:
|
|
Title:
|
Title:
|
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29
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SCHEDULES
--
30
--
Schedule
1.1
Equal
Justice System Source Code
--
31
--
Schedule
2.1 (b)
▇▇▇
▇▇▇▇▇▇
7GPX711
– Dell Computer and Peripherals including monitor, mouse and
keyboard
Y3074289P
– Toshiba Laptop
▇▇▇▇▇
Master
Compaq
SQL Server
DELL
Laptop
JM8B71
DELL
Desktop
8H81H51
Micron
Desktop Dev CustomerSoft property
#86
--
32
--
Schedule
2.1 (d)
Acquired
Software
Equal
Justice System
Unlimited
Rights to LaunchPad Development Platform
--
33
--
Schedule
2.1 (e)
Assumed
Contracts
Existing
clients of CustomerSoft
Access
Data
AdSpace
Alsco
American
Trucking
Bemidji
State U.
City
of
Aspen
City
of
▇▇▇▇▇▇▇
ComPlus
Data
ConnectShip
Cornerstone
Brands
Custom
Bus. Solutions
DataComm
Networks
DFAS-SL-DFW
EduTech
Support Svcs
FiServ
CBS (Arlington)
FiServ
CBS (Orlando)
▇▇▇▇▇▇
-
Rosemount
Harcourt
Brace
▇▇▇▇▇▇
Bank
Intek
Lasermax
Roll Systems
LIM
Loyola
University
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇'▇
Micro
Motion
Mintec
Network
Alliance
▇▇▇▇▇▇
Hospital
Ocean
Bank
ONEs
Technologies
Open
Solutions
Pampered
Chef
Ratex
Setech
Spectron
State
Corp. of VA
TFB
House
The
▇▇▇▇▇
Group
Trader
Joe's
Wild
Adventures
▇▇▇▇▇▇
▇▇▇▇▇ Hospital
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34
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Schedule
2.2 (j)
Excluded
Assets
The
Asset Purchase Agreement only refers to the assets of the CRM Division;
there
are no excluded assets for the CRM Division and no assets of Premier
Data
Services are included with the Asset Purchase Agreement.
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35
--
Schedule
2.3 (b)
Assumed
Liabilities
CustomerSoft,
LLC assumes the responsibility for the warranty, repair, maintenance,
service or
support obligations for the acquired assets for the existing customers
as listed
in Schedule
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36
--
Schedule
4.2(c)
Ancillary
Agreements
Premier
Data Services has no notice to, filing with, and no permit, authorization,
consent or approval of, any governmental entity, or any other person
is
necessary for the execution and delivery of this agreement and the ancillary
agreements by Premier Data Services or the consummation by Premier Data
Services
of the transactions contemplated by this agreement.
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37
--
Schedule
4.4
Title
to Property
There
are no exceptions to Premier Data Services having good and marketable
title to
all tangible acquired assets.
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38
--
Schedule
4.5
Confidentiality
Assigned
intellectual property rights have not been disclosed to third
parties.
--
39
--
Schedule
6.8
CRM
Division Employees
CustomerSoft,
LLC shall offer employment to ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇.
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40
--
EXHIBIT
A
INTELLECTUAL
PROPERTY ASSIGNMENT AND LICENSE AGREEMENT
This
agreement (“Agreement”) shall be effective as of the Effective Date (as
defined below) by and between Premier Data Services, Inc., (“Premier”), a
Delaware corporation having an address at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and CustomerSoft, LLC (“CustomerSoft”), a
Colorado limited liability company having an address at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
WHEREAS,
Premier and CustomerSoft have entered into an Asset Purchase Agreement
(“APA”) dated as of November 1, 2006, pursuant to which CustomerSoft will
acquire certain assets related to Premier’s CRM Division (as defined in the
APA);
WHEREAS,
in accordance with the APA, Premier is willing to: (a) assign to
CustomerSoft certain intellectual property rights that have been used
substantially exclusively in connection with the CRM Division; and (b)
nonexclusively license to CustomerSoft certain other intellectual property
rights that have been used in connection with both the CRM Division and the
remainder of Premier’s business;
NOW,
THEREFORE, in consideration of the foregoing, the provisions set forth
herein, and other good and valuable consideration, Premier and CustomerSoft
agree as follows:
ARTICLE
1-- DEFINITIONS
“Acquired
Assets” has the meaning set forth in the APA.
“Acquired
Technology” has the meaning set forth in the APA.
“Affiliate”
of a Party means any entity controlled by, controlling, or under common control
with a party, or operating under the trade identity of such party, or which
is
at least 50% owned by such party, but only for so long as such control,
identification or ownership continues to exist. However, foreign
entities will not need to meet a majority ownership or control requirement
where
the laws of the relevant foreign jurisdiction do not permit majority ownership
or control, provided that the Party owns or controls substantially the maximum
percentage of such foreign entity permissible under such laws.
“Agreement”
has the meaning set forth in the preamble.
“APA”
has the meaning set forth in the preamble.
“Assigned
Non-Patent IPR” means all of the following to the extent owned by Premier as
of the Effective Date: (a) copyrights, trade secrets and all other
proprietary rights embodied in and used solely and exclusively with the
software, designs, and other technology comprising the Acquired Assets; and
(b)
trademarks used solely and exclusively with the Acquired Assets (as set forth
in
Attachment A), together with any associated goodwill.
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41
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“Confidential
Information” of a Party means that Party’s trade secrets and unpublished
patent applications, as well as any other proprietary or confidential
information owned by such Party, constituting any part of the subject matter
of
this Agreement.
“Effective
Date” means the “Closing Date” (as defined in the APA) of the transaction
contemplated by the APA.
“Field
of Use” means designing, making and selling CRM software
solutions.
“Inventors”
has the meaning set forth in Section
“Legacy
IP Counsel” has the meaning set forth in Section 4.1.
“Licensed
Non-Patent IPR” means all copyrights, trade secrets and other proprietary
rights existing prior to the Effective Date (other than the Assigned Non-Patent
IPR) and owned by Premier or licensable by Premier to CustomerSoft, that
are
embodied in, but are not unique to, the software, designs, and other technology
comprising the Acquired Assets.
“Licensed
Patents” means those patents (and patent applications, if any) specifically
set forth in Attachment B.
“Parties”
means Premier and CustomerSoft.
“Party”
means Premier or CustomerSoft.
ARTICLE
2-- INTELLECTUAL PROPERTY RIGHTS ASSIGNMENTS
2.1 Assigned
Non-Patent IPR. Premier hereby assigns to CustomerSoft
the entire right, title and interest in the Assigned Non-Patent IPR, including
the right to ▇▇▇ for any past infringement or misappropriation by any third
party (except against Premier, or contractors or customers of Premier, in
connection with products or services offered by Premier prior to the Closing
Date). The Parties acknowledge that CustomerSoft is the sole owner of
the Assigned Non-Patent IPR, subject to any outstanding licenses or other
grants
made by Premier prior to the Closing Date and identified on Schedule 1 attached
hereto. Premier shall execute and deliver to CustomerSoft the pro
forma trademark assignment set forth in Exhibit 1, dated as of the
Effective Date, which CustomerSoft may record at the U.S. Patent and Trademark
Office.
2.2 Irrevocability. Notwithstanding
anything to the contrary, the provisions of this Article 2. are
irrevocable.
ARTICLE
3 -- INTELLECTUAL PROPERTY RIGHTS LICENSE
3.1 Licensed
Patents. Premier hereby grants to CustomerSoft a
paid-up, perpetual, personal, nonexclusive, worldwide license under the Licensed
Patents to make, use, sell, offer for sale, have made (subject to the provisions
below), have used, have sold or import any product, or perform any process,
covered by any claim of the Licensed Patents in the Field of Use.
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42
--
3.2 Have
Made Rights. CustomerSoft may contract with third
parties to design and/or make products (or components thereof) in the Field
of
Use covered by the Licensed Patents.
3.3 Non-Patent
IPR. Provided that the grant of such license does
not require the payment of consideration or create liability on behalf of
Premier, Premier hereby grants to CustomerSoft a royalty-free, perpetual,
personal, nonexclusive, worldwide license under the Licensed Non-Patent IPR
to
use, reproduce, distribute, perform, display, create derivative works of,
and
otherwise exploit, any product or to provide any service, in the Field of
Use. With respect to any Licensed Non-Patent IPR that cannot be
licensed by Premier without payment of consideration or the creation of
liability, Premier shall reasonably cooperate with CustomerSoft, at
CustomerSoft’s sole expense, to seek permission for such license
grant.
3.4 Sublicensing. CustomerSoft
may sublicense the Licensed Patents or Licensed Non-Patent IPR without consent
from Premier.
3.5 Additional
Licensed Patents. For a period of one year (1) after the
Effective Date, if either Party discovers a Premier-licensable patent or
patent
application, which was in existence as of the Effective Date, that it believes
CustomerSoft infringes, then Premier shall provide a license to CustomerSoft
under such patent or patent application to perform such act, upon terms and
conditions no less favorable than the terms of the license for the Licensed
Patents hereunder. As used herein, “Premier-licensable” means that
Premier can grant a license as set forth herein without owing any consideration,
or triggering or violating any other obligation, to any third
party.
ARTICLE
4 -- INTELLECTUAL PROPERTY PROSECUTION, MAINTENANCE AND
ENFORCEMENT
4.1 Deliverables. On
the Effective Date, Premier shall: (a) deliver to CustomerSoft docket
reports from Premier’s IP external counsel servicing the Assigned Non-Patent IPR
(to the extent applicable) prior to the Effective Date (“Legacy IP
Counsel”); (b) copies of all material information in Premier’s internal IP
files relating to the Assigned Non-Patent IPR; and (c) instruct Legacy IP
Counsel to make accessible to CustomerSoft copies of all U.S. Patent and
Trademark Office and U.S. Copyright Office correspondence relating to Assigned
Non-Patent IPR.
4.2 Assigned
Intellectual Property Rights. CustomerSoft assumes
responsibility for all prosecution, maintenance and enforcement of the Assigned
Non-Patent IPR, at its sole discretion, including retaining patent counsel
therefor. Premier shall notify CustomerSoft of any known or
reasonably suspected third party infringement of the Assigned Non-Patent
IPR. CustomerSoft acknowledges that Legacy IP Counsel is not
required to undertake any representation of CustomerSoft in relation to the
Assigned Non-Patent IPR, but may do so upon mutual agreement with
CustomerSoft.
4.3 Licensed
Intellectual Property Rights. Premier retains sole
responsibility for all prosecution, maintenance and enforcement of the Licensed
Patents and Licensed Non-Patent IPR, at its sole
discretion. CustomerSoft shall notify Premier of any known or
reasonably suspected third party infringement of the Licensed Patents or
Licensed Non-Patent IPR.
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43
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ARTICLE
5-- CONFIDENTIALITY
5.1 Generally. Each
Party shall keep confidential, and not use for any purpose outside this
Agreement, the other Party’s Confidential Information. Without
limiting the generality of the foregoing: (a) Premier’s obligations
shall apply with respect to any trade secrets within the Assigned Non-Patent
IPR; and (b) CustomerSoft’s obligations shall apply with respect to any
unpublished patent applications within the Licensed Patents, and to any trade
secrets within the Licensed Non-Patent IPR.
5.2 Security
Measures. Each Party shall implement sufficient measures
to protect the confidentiality of the other Party’s Confidential
Information. Such measures shall be no less than the measures the
implementing Party uses to protect its own Confidential Information, and
in no
event less than a reasonable degree of care.
5.3 Exceptions. Notwithstanding
anything to the contrary, a Party’s obligations under Sections 5.1 and
5.2 shall be waived with respect to a particular item of Confidential
Information: (a) if and when such Confidential Information becomes
generally known to the public without any breach of any obligation of
confidentiality; or (b) to the limited extent a disclosure of such Confidential
Information is required by a court of competent jurisdiction, or otherwise to
satisfy a governmental disclosure requirement, provided that the disclosing
Party provides the non-disclosing Party with advance notice of, and full
cooperation in, seeking a protective order (or equivalent) restricting the
scope
of such disclosure to substantially the maximum degree permissible under
law.
ARTICLE
6-- REPRESENTATIONS AND WARRANTIES;
INDEMNIFICATION
6.1 Warranty. PREMIER
HEREBY WARRANTS THAT THE INTELLECTUAL PROPERTY RIGHTS ASSIGNED OR LICENSED
HEREUNDER ARE VALID AND ENFORCEABLE AND MAY BE USED WITHOUT INFRINGING ANY
THIRD
PARTY’S INTELLECTUAL PROPERTY RIGHTS. EXCEPT FOR SUCH WARRANTY,
PREMIER HEREBY DISCLAIMS AND CUSTOMERSOFT HEREBY WAIVES ALL WARRANTIES, EXPRESS
OR IMPLIED, INCLUDING BUT NOT LIMITED TO ALL IMPLIED WARRANTIES OF FITNESS
FOR A
PARTICULAR PURPOSE AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY.
6.2 Indemnification. Premier
shall defend, indemnify and hold CustomerSoft harmless against any and all
damages, losses, costs, expenses, claims and actions of third parties that
the
Acquired Technology infringes any patent, copyright, trade secret or other
intellectual property and will pay such damages, settlement or costs as are
finally awarded against CustomerSoft attributable to such a claim provided
that
CustomerSoft (i) notifies Premier promptly in writing of such a claim or
action,
(ii) gives Premier sole control of the defense and/or settlement of such
action
and (iii) gives Premier all reasonable information and
assistance. Premier assumes no liability hereunder for infringement
to the extent caused by, and which otherwise would not have occurred but
for,
the following: (a) the combination of the Acquired Technology with computer
programs developed by CustomerSoft after the Effective Date; (b) trademarks
infringements involving any markings or branding on the Acquired Technology
applied by CustomerSoft; or (c) infringements involving the modification
of the
Acquired Technology after the Effective Date.
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44
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ARTICLE
7 -- TERM AND TERMINATION
7.1 Term. This
Agreement shall take effect on the Effective Date and continue until the
expiration, revocation, invalidation, or unenforceability of every Licensed
Patent and Licensed Non-Patent IPR, unless earlier terminated pursuant to
the
terms of this Agreement.
7.2 Termination. If
this Agreement is materially breached by either Party, the non-breaching
Party
may elect to give the breaching Party written notice describing the alleged
breach. If the breaching Party has not cured such breach within
sixty (60) days after receipt of such notice, the notifying Party will be
entitled, in addition to any other rights it may have under this Agreement,
to
terminate this Agreement effective immediately.
7.3 Survival. The
following shall survive any termination (in whole or in part) of this
Agreement: (a) any provision plainly indicating that it should
survive; and (b) Article 1,
Article
2, Article 4,
Article
5, Article
6, and Article
8.
ARTICLE
8-- MISCELLANEOUS
8.1 Notices. All
notice, requests, demands and other communications hereunder shall be in
English
and shall be given in writing and shall be: (a) personally delivered;
(b) sent by private express courier services with confirmation of receipt;
(c)
sent by facsimile, provided that the sending facsimile machine generates
a
transmission confirmation sheet reflecting successful receipt at the receiving
facsimile machine; or (d) sent by registered or certified mail, return receipt
requested and postage prepaid. The Parties' respective addresses to
be used for all such notices, demands or requests are as set forth above
in the
preamble of this Agreement. If delivered personally or by courier,
such communication shall be deemed delivered upon actual receipt. If
transmitted by facsimile, such communication shall be deemed delivered the
next
business day after transmission. If sent by mail, such communication
shall be deemed delivered as of the date of delivery indicated on the receipt
issued by the U.S. Post Office. Either party may change its address
for the purposes of this Agreement by giving notice thereof in accordance
with
this Section 0.
8.2 Entire
Agreement. This Agreement and, to the extent referenced
herein, the APA, sets forth the complete agreement of the Parties concerning
the
subject matter hereof. No claimed oral agreement in respect thereto
shall be considered as any part hereof. No amendment or change in any
of the terms hereof subsequent to the execution hereof shall have any force
or
effect unless agreed to in writing by duly authorized representatives of
the
Parties.
8.3 Waiver. No
waiver of any provision, of this Agreement shall be effective unless in
writing. No waiver of any breach shall constitute a future waiver of
such breach or any similar breach unless otherwise expressly provided in
such
waiver. No waiver with respect to any provision of this Agreement
shall constitute a waiver of any breach of any other provision of this
Agreement.
8.4 Severability. Each
provision contained in this Agreement constitutes a separate and distinct
provision severable from all other provisions. Should any provision
(or any part thereof) be unenforceable under or prohibited by any present
or
future law, then such provision (or part thereof) shall be amended, and is
hereby amended, so as to be in compliance with such law, while preserving
to the
maximum extent possible the intent of the original
provision. Any
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45
--
provision
(or part thereof) that cannot be so amended shall be severed from this Agreement
and all the remaining provisions of this Agreement shall remain
unimpaired.
8.5 Interpretation. The
headings in this Agreement are inserted for convenience only and do not
constitute limitations thereunder. Unless expressly noted, the term
“include” (including all variations thereof) shall be construed as exemplary
rather than as a term of limitation. Each Party has been
advised by counsel in connection with negotiating this Agreement.
8.6 Counterparts. This
Agreement may be executed in one or more counterparts, including by facsimile
signatures.
8.7 Governing
Law and Jurisdiction. This Agreement, and any action
instituted by either Party with respect to matters arising hereunder or in
connection herewith shall be governed by and construed in accordance with
the
laws of the State of Colorado, excluding any conflict of law or choice of
law
rules. The parties submit to the exclusive jurisdiction of, and venue
in, the state and federal courts in Denver, Colorado.
8.8 Assignment,
Delegation and Transfer. This Agreement shall be binding
upon the successors and assigns of the parties hereto.
8.9 Force
Majeure. Neither Party shall lose any rights hereunder
or be liable to the other Party for damages or losses (except for payment
obligations) on account of failure of performance by the defaulting party
if the
failure is occasioned by war, strike, fire, Act of God, earthquake, flood,
lockout, embargo, governmental acts or orders or restrictions, failure of
suppliers, or any other reason; provided that such failure to perform is
beyond
the reasonable control and not due (in whole or in part) to the negligence
or
intentional conduct or misconduct of the nonperforming party, and such
nonperforming party has exerted all reasonable efforts to avoid or remedy
such
force majeure.
8.10 Bankruptcy
Code. The Parties acknowledge that: (a) the
intellectual property-related provisions of this Agreement are subject to
11
U.S.C. 365(n); and (b) the Licensed Patents and the Licensed Non-Patent IPR
fall
within the meaning of “intellectual property” as that term is used in the United
States Bankruptcy Code.
8.11 Further
Assurances. Each Party will perform any act reasonably
necessary to effect the rights specifically granted (or intended to be granted)
to the other Party under this Agreement.
8.12 No
Other Rights. Other than as expressly granted
herein, no other rights are granted or may arise hereunder, whether through
a
theory of implication, estoppel or otherwise.
[Signature
Page Follows]
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46
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This
Intellectual Property Assignment
and License Agreement is hereby entered into by and between:
Premier
Data Services, Inc.
By: _________________________________
Name: _______________________________
Title:
________________________________
CustomerSoft,
LLC
By: _________________________________
Name: _______________________________
Title:
________________________________
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47
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ATTACHMENT
A – ASSIGNED TRADEMARKS
CustomerSoft
--
48
--
ATTACHMENT
B – LICENSED PATENTS
There
are no current or pending patents
--
49
--
EXHIBIT
1 – ASSIGNMENT OF TRADEMARKS
For
good
and valuable consideration, the receipt of which is hereby acknowledged,
Premier
Data Services, Inc. (“Premier”), a corporation having an address at ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, does
hereby:
|
(a)
|
irrevocably
assign to CustomerSoft, LLC, a corporation having an address at
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
("Assignee"): (1) the entire right, title and interest,
everywhere in the world to the trademarks (including any applications
therefore, registrations thereof, and all goodwill associated with
any of
the foregoing) listed on Attachment A; and (2) the right to ▇▇▇
third
parties for trademark infringement (including but not limited to
damages)
accruing based on activities occurring prior to the execution date
hereof;
|
|
(b)
|
agree,
upon request (and at the expense) of Assignee to execute all oaths,
assignments, powers and any other papers necessary to perfect Assignee’s
title in the foregoing.
|
|
|
The
effective date of this assignment is November 1,
2006.
|
For
Premier Data Services, Inc.:
Notary
Seal:
By: _____________________________________
Name: __________________________________
Title: ___________________________________
For
CustomerSoft, LLC:
Notary
Seal:
By: _____________________________________
Name: __________________________________
Title: ___________________________________
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50
--
SCHEDULE
1
OUTSTANDING
LICENSES
There
are no outstanding licenses or other grants made by Premier prior to the
Closing
Date
--
51
--
EXHIBIT
B
Transition
Services Agreement
This
Transition Services Agreement
(“Agreement”) shall be effective as of November 1, 2006 (“Effective
Date”) and is by and between Premier Data Services, Inc. (“Premier”),
a Delaware corporation having an address at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and CustomerSoft, LLC
(“CustomerSoft”), a Colorado limited liability company having an address
at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(“CustomerSoft”).
Whereas,
Premier and CustomerSoft have entered into an Asset Purchase Agreement
dated to
be effective as of November 1, 2006 (“APA”), pursuant to which
CustomerSoft will acquire assets related to Premier’s CRM Division (as defined
in the APA);
Whereas,
the parties desire to enter into this Agreement for the provision of certain
transition services to each other after the Closing of the transactions
contemplated by the APA. Such transition services may include the
provision by Premier to CustomerSoft of information technology services
and
other administrative services, subject to the terms and conditions of this
Agreement; and
Whereas,
the parties
are entering into this Agreement concurrent with the Closing of the transactions
contemplated by the APA.
Now,
Therefore, in consideration of the foregoing, the provisions set
forth herein, and other good and valuable consideration, Premier and
CustomerSoft agree as follows:
Article
1. Definitions. Unless
otherwise defined herein, all capitalized terms used in this Agreement
shall
have their respective meanings set forth in the APA.
Article
2. Services
Section
2.1. Services Provided
by
Premier.
(a) Services. Subject
to the terms and conditions of this Agreement, Premier shall provide to
CustomerSoft during the Term the services described on the following Schedules
attached hereto:
|
Schedule
1-A
|
Information
Technology Services
|
|
Schedule
1-B
|
Human
Resource Services
|
|
Schedule
1-C
|
Administrative
Financial Services
|
|
Schedule
1-D
|
Site
Services
|
(b) Third
Party Software Licenses or Contracts. To the extent any of the
Premier provided services listed on the schedules would involve making
available
to CustomerSoft the benefit of any third party software licenses or contracts
held by Premier, then Premier shall only make available such third party
software or contract benefits to the extent Premier is already permitted
to do
so under such licenses or contracts, if at all, without incurring any additional
costs or expenses, or without violating any terms thereof.
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52
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Section 2.2. Level
of Service. Premier undertakes to use the same degree of
care in rendering services under this Agreement as it utilizes in rendering
such
services for its own operations and shall not be liable for any failure
to
provide services other than a failure caused by or attributable to its
gross
negligence or intentional misconduct or that of any of its affiliates,
employees, officers or other agents. Nothing in this Agreement will
require Premier to perform or cause to be performed any service in a manner
that
would constitute a violation of applicable laws or a breach of a third
party
agreement.
Section
2.3. Additional
Services. In the event that CustomerSoft requests Premier to
perform certain services within the general nature of the services scheduled
herein, but such services are not expressly described in the attached Schedules,
then the parties shall discuss such request in good faith and use commercially
reasonable efforts to accommodate such requests. The ultimate
provision of any such services, however, is subject to the mutual agreement
of
the parties.
Article
3. Cooperation;
Access
to Information
Section
3.1. The
parties shall cooperate with one another in connection with the performance
of
the services hereunder, including using commercially reasonable efforts
to
produce on a timely basis all information that is reasonably requested
with
respect to the performance of the services during the Term; provided, however,
that such cooperation shall not unreasonably disrupt the normal operations
of
the party providing such information; and provided, further, that the party
requesting cooperation shall pay all reasonable out-of-pocket costs and
expenses
incurred by the party furnishing cooperation, unless otherwise expressly
agreed
by the parties in writing.
Section
3.2. Access
to
Information. The parties acknowledge and affirm their
respective rights and obligations under Section 6.2 of the APA regarding
access
to information, assets and personnel subsequent to the
Closing. Nothing in this Agreement shall be interpreted in a manner
that would conflict with or restrict such rights and obligations.
Article
4. Pricing and
Payment
Section
4.1. Service
Pricing. All services to be provided by Premier hereunder
shall be free of charge through December 31, 2006. Thereafter,
pricing for the provided services shall be as set forth on the applicable
Schedules. If no pricing is expressly designated for such services,
then the parties may mutually agree in writing upon applicable pricing,
or, in
the absence of such agreement, the price for such services shall be based
on
Premier’s actual out-of-pocket costs and reasonable internal charges for
providing such services. The mutual intent of the parties is to price
the services in a manner that reflects the reasonable, aggregate cost to
Premier
arising from provision of the service.
Section
4.2. Processing
and
Payment. Commencing on January 31, 2007, as soon as
practicable following the end of each calendar month, Premier shall prepare
and
provide an aggregated report of all services and charges, in an itemized
format,
to be billed to CustomerSoft for such month. Payment shall be made by
CustomerSoft within 30 days of receipt of each invoice.
Article
5. Premier
Trademarks
Section
5.1. CustomerSoft
acknowledges that all Premier trademarks, trade names, service marks, slogans,
designs, labels, logos and other source-identifying symbols (“Premier
Trademarks") are vested in Premier absolutely. For the avoidance
of doubt, the trademarks expressly assigned to
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53
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CustomerSoft
under the IP Agreement do not constitute Premier Trademarks, and are owned
by
CustomerSoft.
Section
5.2. For
a period of
ninety (90) days from the Effective Date, Premier consents to CustomerSoft’s
continued use of Premier Trademarks: (i) as part of CustomerSoft’ use and
distribution of pre-existing Premier product literature and marketing materials
related to the CRM Division and CRM Products, and (ii) to the extent they
are
already fixed on existing stocks of CRM Products; in both cases only in
accordance with Premier's trademark usage guidelines and only in a manner
which
preserves the rights of Premier. All uses of the Premier Trademarks
will inure to the benefit of Premier. CustomerSoft has no right,
title or interest in the Premier Trademarks except as expressly provided
herein. Following such ninety (90) day period, the foregoing consent
to use the Premier Trademarks will automatically terminate and CustomerSoft
will
immediately cease using the Premier Trademarks.
Section
5.3. CustomerSoft
shall
ensure that, in connection with its permitted use of the Premier Trademarks,
it
clearly designates that CustomerSoft is a separate entity owned independently
of
Premier, and that it is not a Premier company or an authorized agent or
representative of Premier. For illustration purposes, during the
ninety (90) day period following the Effective Date, CustomerSoft, may
for
example, refer to CustomerSoft as “previously the CRM division of
Premier.” CustomerSoft is not authorized to make any commitment or
representation on behalf of Premier and shall ensure that it does not represent,
mislead, or otherwise hold itself out to any third party as an authorized
agent
or representative of Premier in any manner. CustomerSoft shall
indemnify Premier from any claims, actions, costs, expenses or liabilities
that
arise out of a breach by CustomerSoft of the foregoing.
Article
6. Term
The
term
of this Agreement shall commence on the Effective Date and shall continue
for a
period of six (6) months (the “Term”), although the actual duration of
specific services may be for a shorter or longer period as provided on
the
Schedules attached hereto. The Term may be extended by the mutual
written agreement of Premier and CustomerSoft.
Article
7. No
Warranties.
NEITHER
PARTY MAKES
ANY WARRANTIES UNDER THIS AGREEMENT AND EACH PARTY DISCLAIMS ALL WARRANTIES
HEREUNDER, WHETHER EXPRESS, STATUTORY OR IMPLIED, INCLUDING ANY WARRANTIES
OF
MERCHANTABILITY, TITLE OR FITNESS FOR A PARTICULAR PURPOSE.
Article
8. Limitation
of
Liability.
Neither
party shall
be liable to the other, or to any third party, for any special, consequential
or
exemplary damages (including lost or anticipated revenues or profits relating
to
the same) arising from any claim relating to this Agreement or any of the
services provided hereunder, whether such claim is based on warranty, contract,
tort (including negligence or strict liability) or otherwise, even if a
representative of such party is advised of the possibility or likelihood
of the
same.
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54
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Article
9. General
Section
9.1. Entire
Agreement; Modification. This Agreement (which includes the attached
Schedules) constitute the whole and entire understanding and agreement
of the
parties with respect to its subject matter, and completely supersedes and
negates any other related prior or contemporaneous representations,
understandings, or agreements, written and oral. This Agreement may
be altered, amended or modified only by another written instrument which
is
signed by authorized representatives of both parties and by no other
means.
Section
9.2. No
Third Party
Beneficiaries. Nothing contained in this Agreement is
intended to, nor shall it confer upon any person or entity, other than
the
parties hereto, any benefit, right or remedies under or by reason of this
Agreement. The parties do not intend for there to be any third party
beneficiaries under this Agreement.
Section
9.3. Force
Majeure. Neither party shall be liable to the other for failure to
perform its obligations hereunder (except the payment of sums due by one
party
to another under this Agreement) to the extent caused by an event beyond
the
reasonable control of such party, including, without limitation, government
regulations or orders, outbreak of a state of emergency, acts of God, war,
warlike hostilities, civil commotion, riots, epidemics, fire, strikes,
lockouts,
or any other similar cause or causes, provided that such party promptly
notifies
the other in writing of such occurrence and makes all commercially reasonable
efforts to promptly eliminate the effect thereof.
Section
9.4. Notices.
Any
notice or other communication given by either party to the other regarding
this
Agreement will be deemed given and served when personally delivered, or
two (2)
days after sent by reputable overnight courier requiring signature for
receipt,
addressed to the party at its notice address set forth in the preamble
of this
Agreement. Either party may change its notice address by written notice
to the
other.
Section
9.5. Counterparts.
This Agreement may be executed in two (2) or more counterparts, each of
which
will be deemed an original and when taken together shall constitute a single
fully-signed original, regardless whether the parties’ signatures appear
together on the same document or separately on one or more
counterparts.
Section
9.6. Captions
and
Headings. This Agreement’s captions and paragraph headings are for
convenience of reference only, and shall not be deemed part of this Agreement
or
used as an aid in its construction.
Section
9.7. No
Strict
Construction. The language used in this Agreement shall be deemed to be
the language chosen by the parties hereto to express their mutual intent,
and no
rule of strict construction shall be applied against any person or
entity.
Section
9.8. Governing
Law; Jurisdiction and Venue; Attorney’s Fees. This Agreement
will be governed by and construed in accordance with the laws of the State
of
Colorado and applicable United States federal law, without reference to
“conflict of laws” provisions or principles. The United Nations Convention on
Contracts for the International Sale of Goods will not apply to any transactions
under this Agreement. Jurisdiction and venue of any dispute or legal action
brought by either party arising out of or relating to this Agreement (including
any services under this Agreement), shall lie exclusively in, or be transferred
to, the courts of the City and County of Denver, Colorado and/or the United
States District Court for the State of Colorado. The prevailing party in
any
dispute or legal action shall recover from the other party its reasonable
attorney’s fees and costs of suit in addition to any other relief
granted.
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55
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Section
9.9. Independent
Contractors. The relationship of Premier and CustomerSoft established
by this Agreement is that of independent contractors, and neither party
is an
employee, agent, partner or joint venturer of the other.
Section
9.10. Assignment. This
Agreement will be binding upon and inure to the benefit of the parties
and their
successors and assigns.
Section
9.11. Waiver.
Either party’s (i) waiver of any performance by the other party, (ii) waiver of
any condition of this Agreement, or (iii) consent to any breach of this
Agreement by the other party, shall (a) be effective only if expressly
set forth
in a writing signed by the party alleged to have waived or consented, and
(b)
not constitute or require an ongoing waiver of such performance or condition,
or
consent to any previous, different or subsequent breach, regardless of
whether
such performance, condition or breach is similar, identical or related,
and
regardless of the course of dealing which develops or has developed between
the
parties.
Section
9.12. Partial
Invalidity. If any provision of this Agreement is held by a court of
competent jurisdiction to be invalid, illegal or unenforceable to any extent,
that provision shall, if possible, be construed as though more narrowly
drawn,
if a narrower construction would avoid such invalidity, illegality or
unenforceability, or, if that is not possible, such provision shall, to
the
extent of such invalidity, illegality or unenforceability, be severed,
and the
remaining provisions of this Agreement shall remain in effect, provided,
however, that the court shall have authority and jurisdiction to, and shall,
add
to this Agreement a provision as similar in terms and intended effect to
such
severed provision as may be possible and be legal, valid and
enforceable.
In
Witness Whereof, the parties have caused their respective duly
authorized representatives to execute and enter into this Transition Services
Agreement as of the Effective Date.
|
Premier
Data Services, Inc.:
|
CustomerSoft,
LLC:
|
|
By: ______________________________
Print
Name: ________________________
Title: _____________________________
|
By: ______________________________
Print
Name: ________________________
Title: _____________________________ |
|
Date: _____________________________
|
Date: _____________________________
|
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56
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Schedule
1-A
Information
Technology Services
Access
to the Premier Data Services Exchange Server to host the CustomerSoft mail
domain
Hosting
of the CustomerSoft website for the domain of ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Access
to the Premier Data Services ftp server for the existing CustomerSoft
logins
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57
--
Schedule
1-B
Human
Resource Services
Retain
the current employees of CustomerSoft which includes ▇▇▇ ▇. ▇▇▇▇▇▇ and
▇▇▇▇▇
▇▇▇▇▇▇▇ on the Premier payroll system with an administrative chargeback,
to be
paid in advance of payroll, to CustomerSoft for such costs through December
31,
2006.
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58
--
Schedule
1-C
Administrative
Financial Services
No
administrative financial services will be required
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59
--
Schedule
1-D
Site
Services
Site
services will be provided per the separate Agreement between Premier Data
Services and CustomerSoft, LLC.
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60
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