EXHIBIT 2.1
ASSET PURCHASE AGREEMENT
dated as of
December 12, 2001
between
CrossZ Solutions S.p.A.
and
QueryObject Systems Corporation
ASSET PURCHASE AGREEMENT
AGREEMENT dated December 12, 2001 between QueryObject Systems
Corporation, a Company organized and existing under the laws of the State of
Delaware, with offices at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ("Seller"), and CrossZ Solutions S.p.A., a Company organized and existing
under the laws of Italy, with offices at ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
("Buyer"), collectively referred to as the "Parties".
W I T N E S S E T H:
WHEREAS, Seller conducts a business which develops, sells,
distributes and maintains a suite of software programs to be used by third
parties to implement Business Intelligence solutions (the "Business");
WHEREAS, Buyer desires to purchase substantially all of the assets
of the Business from Seller, and Seller desires to sell substantially all of the
assets of the Business to Buyer, upon the terms and subject to the conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties, covenants and agreements herein contained, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
The following terms, as used herein, have the following meanings:
"Affiliate" means, with respect to any Person, any Person directly
or indirectly controlling, controlled by, or under common control with such
other Person.
"Export Administration Act" means the Export Administration Act of
1979, as amended, and the rules and regulations promulgated thereunder.
"Intellectual Property Right" means any trademark, service ▇▇▇▇,
registration thereof or application for registration therefor, trade name,
invention, patent, patent application, trade secret, know-how, copyright,
copyright registration, application for copyright registration, or any other
similar type of proprietary intellectual property right, in each case which is
owned or licensed by Seller or any Affiliate of Seller and used or held for use
primarily in the Business.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset.
"Material Adverse Change" means a material adverse change in the
condition of the Purchased Assets (financial or otherwise).
"Material Adverse Effect" means a material adverse effect on the
condition of the Purchased Assets (financial or otherwise).
"HSR Act" means the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of
1976, as amended.
"1934 Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
"Notes" means the promissory notes issued by the Seller each in the
principal amount of US$250,000 (Two Hundred Fifty Thousand US Dollars), in
substantially the form of Exhibits A and B hereto.
"Person" means an individual, a corporation, a partnership, an
association, a trust or other entity or organization, including a government or
political subdivision or an agency or instrumentality thereof.
ARTICLE II
PURCHASE AND SALE
2.01 Purchase and Sale. Upon the terms and subject to the conditions
of this Agreement, Buyer agrees to purchase from Seller and Seller agrees to
sell, transfer, assign and deliver, or cause to be sold, transferred, assigned
and delivered, to Buyer by Closing, free and clear of all Liens, substantially
all of the assets, property and business, of every kind and description,
wherever located, real, personal or mixed, tangible or intangible, owned, held
or used primarily in the conduct of the Business by Seller as the same shall
exist on the Closing Date (the "Purchased Assets"), and including, without
limitation, all right, title and interest of Seller in, to and under:
(i) all Intellectual Property Rights developed or acquired by the
Seller in connection with the Business, including without limitation the items
listed on Schedule 3.07(a);
(ii) the personal property, equipment, computer systems,
communications equipment, furniture and office equipment listed on Schedule
3.07(d);
(iii) all rights and obligations, under the contracts, agreements,
licenses, commitments, sales and purchase orders and other instruments, to the
extent they are assignable, under the contracts listed on Schedule 3.10
(collectively, the "Contracts");
(iv) the accounts receivable listed on Schedule 9.02.
Both the Buyer and the Seller recognize that the Purchased Assets
are primarily intangible and intellectual property assets, having been assessed
the absence of patents, copyright registrations, trade names registrations,
comprehensive design documents, product specifications and the like. As a
consequence of the foregoing, every item part of the Purchased Assets listed and
described in the above mentioned Schedules will be subject to specific Terms and
Conditions and the transfer will be considered completed with the execution by
the Buyer of an Acceptance Report prepared by the Seller.
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2.02 Purchase Price. The purchase price for the Purchased Assets
(the "Purchase Price") is US$900,000 (Nine Hundred Thousand US Dollars) payable
in cash. The Purchase Price shall be paid as provided in Section 2.03.
2.03 Closing. The closing (the "Closing") of the purchase and sale
of the Purchased Assets shall take place at the offices of Buyer in Naples,
Italy as soon as practicable following the approval of this Agreement by the
Stockholders of the Seller. It is currently anticipated that the Closing will
occur on or about March 31, 2002. The Closing date may be postponed by Seller up
to 30 days following written notice to the Buyer in the event that the Seller is
unable to obtain Stockholder approval of this Agreement on or before March 28,
2002.
The Purchase Price will be paid as follows:
- US$250,000 (Two Hundred Fifty Thousand US Dollars) will be
paid upon signing of this Agreement to be credited to the
aggregate Purchase Price. The payment of this amount will be
evidenced by the Note attached hereto as Exhibit A.
- US$250,000 (Two Hundred Fifty Thousand US Dollars) to be
paid on January 15, 2002 to be credited to the aggregate
Purchase Price. The payment of this amount will be evidenced
by the Note attached hereto as Exhibit B.
- The balance of US$400,000 (Four Hundred Thousand US Dollars)
to be paid at Closing.
At the Closing, Seller and Buyer shall enter into an
Assignment and Assumption Agreement which shall provide that the Buyer shall
assume after the Closing all of the obligations under the Purchased Assets, and
Seller shall deliver to Buyer such deeds, bills of sale, endorsements, consents,
assignments and other good and sufficient instruments of conveyance and
assignment (the "Conveyance Documents") as the parties and their respective
counsel shall deem reasonably necessary or appropriate to vest in Buyer all
right, title and interest in, to and under the Purchased Assets. In addition,
the Buyer shall deliver the Notes to the Seller for cancellation.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Buyer that:
3.01 Corporate Existence and Power. The Seller is a corporation duly
incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation, and has all corporate powers and all material
governmental licenses, authorizations, consents and approvals required to carry
on its business as now conducted. Seller has heretofore delivered to Buyer true
and complete copies of the certificate of incorporation and bylaws of Seller as
currently in effect.
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3.02 Corporate Authorization. The execution, delivery and
performance by Seller of this Agreement and the consummation by Seller of the
transactions contemplated hereby are within Seller's corporate powers and have
been duly authorized by all necessary corporate action on the part of Seller
except for approval of this Agreement by the Stockholders of the Seller. This
Agreement constitutes a valid and binding agreement of Seller enforceable
against Seller in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization and moratorium laws and other laws of general
application affecting the enforcement of creditors' rights generally, and the
availability of equitable remedies may be limited by general principles of
equity.
3.03 Governmental Authorization. The execution, delivery and
performance by Seller of this Agreement require no action by or in respect of,
or filing with, any governmental body, agency, official or authority other than
(i) compliance with any applicable requirements of the HSR Act; (ii) compliance
with any applicable requirements of the 1934 Act; and (iii) compliance with any
applicable requirements of the Export Administration Act.
3.04 Non-Contravention. The execution, delivery and performance by
Seller of this Agreement do not and will not (i) contravene or conflict with the
certificate of incorporation or bylaws of Seller, (ii) assuming compliance with
the matters referred to in Section 3.03, contravene or conflict with or
constitute a violation of any provision of any law, regulation, judgment,
injunction, order or decree binding upon or applicable to Seller or the
Business; (iii) assuming the obtaining of all Required Consents (as such term is
defined in Section 3.05 hereof), constitute a default under or give rise to any
right of termination, cancellation or acceleration of any right or obligation of
Buyer or to a loss of any benefit relating to the Business to which Seller is
entitled under any provision of any agreement, contract or other instrument
binding upon Seller or by which any of the Purchased Assets is or may be bound
or any Permit or (iv) result in the creation or imposition of any Lien on any
Purchased Asset.
3.05 Required and Other Consents. Schedule 3.05 (a) and Schedule
3.10 sets forth each agreement, contract or other instrument binding upon Seller
or any Permit requiring a consent as a result of the execution, delivery and
performance of this Agreement or the consummation of the transactions
contemplated hereby, except such consents as would not, individually or in the
aggregate, have a Material Adverse Effect if not received by the Closing Date
(each such consent, a "Required Consent" and together the "Required Consents").
3.06 Absence of Certain Changes. Since September 30, 2001 except to
the extent described in the Seller's filings under the 1934 Act, there has not
been:
(a) any Material Adverse Change or any event, occurrence,
development or state of circumstances or facts which could be expected to result
in a Material Adverse Change;
(b) any incurrence, assumption or guarantee by Seller of any
indebtedness for borrowed money with respect to the Business other than in the
ordinary course of business and in amounts and on terms consistent with past
practices;
(c) any creation or other incurrence of any Lien on any material
Purchased Asset other than in the ordinary course of business consistent with
past practices;
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(d) any damage, destruction or other casualty loss (whether or not
covered by insurance) affecting the Business or any Purchased Asset which,
individually or in the aggregate, has had or could reasonably be expected to
have a Material Adverse Effect;
(e) any transaction, contract, agreement or other instrument entered
into, or commitment made, by Seller relating to the Business or any Purchased
Asset (including the acquisition or disposition of any assets) or any
relinquishment by Seller of any contract or other right, in either case,
material to the Business taken as a whole, other than transactions and
commitments in the ordinary course of business consistent with past practices
and those contemplated by this Agreement.
If prior to Closing, the Seller files for reorganization under Chapter 11
of the U.S. Bankruptcy Protection Code that may effect the completion of this
agreement, or effect the Seller's powers as represented in Section 3.01 above,
the Buyer will be entitled to a non exclusive remedy for the break up of the
agreement and full title to the Assets transferred up to that date.
3.07 Properties. (a) Schedule 3.07(a) correctly describes all
Intellectual Property Rights developed by Seller for the Business included in
the Purchased Assets ,which Seller fully owns. Schedule 3.07(a) sets forth a
list of all Intellectual Property Rights, specifying as to each, as applicable:
(i) the nature of such Intellectual Property Right; (ii) the owner of such
Intellectual Property Right; (iii) the jurisdictions by or in which such
Intellectual Property Right is recognized without regard to registration or has
been issued or registered or in which an application for such issuance or
registration has been filed, including the respective registration or
application numbers; and (iv) material licenses, sublicenses and other
agreements as to which Seller or any of its affiliates is a party and pursuant
to which any Person is authorized to use such Intellectual Property Right,
including the identity of all parties thereto, a description of the nature and
subject matter thereof, the applicable royalty and the term thereof.
(b) Seller has not during the three years preceding the date of this
Agreement been sued or charged in writing with or been a defendant in any claim,
suit, action or proceeding relating to its business that has not been finally
terminated prior to the date hereof and that involves a claim of infringement of
any patents, trademarks, service marks or copyrights, and Seller has no
knowledge of any other claim or infringement by Seller, and no knowledge of any
continuing infringement by any other Person of any Intellectual Property Rights.
No Intellectual Property Right is subject to any outstanding order, judgment,
decree, stipulation or agreement restricting the use thereof by Seller with
respect to the Business or restricting the licensing thereof by Seller to any
Person. Seller has not entered into any agreement to indemnify any other Person
against any charge of infringement of any patent, trademark, service ▇▇▇▇ or
copyright.
(c) None of the software codes, mathematical formulae, research and
development results and other know-how relating to the Business, the value of
which to Seller is contingent upon maintenance of the confidentiality thereof,
has been disclosed by Seller or any affiliate thereof to any Person other than
employees, representatives and agents of Seller.
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(d) Schedule 3.07(d) correctly describes all material personal
property used in the Business included in the Purchased Assets, including, but
not limited to, equipment, furniture, other trade fixtures and materials and
fixed assets, which Seller owns.
(e) The Seller has good and marketable, indefeasible, fee simple
title to all Purchased Assets (whether real, personal, tangible or intangible).
Upon consummation of the transactions contemplated hereby, Buyer will have
acquired good and marketable title in and to each of the Purchased Assets, free
and clear of all Liens.
(f) No Purchased Asset is subject to any Lien.
(g) No violation of any law, regulation or ordinance (including,
without limitation, laws, regulations or ordinances relating to zoning,
environmental, city planning or similar matters) relating to the Business or any
Purchased Asset currently exists or has existed at any time since January, 1998,
except for violations which have not had and would not reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect.
3.08 Sufficiency of the Purchased Assets. The Purchased Assets
constitute, and on the Closing Date will constitute, substantially all of the
assets or property used or held for use in the Business.
3.09 Litigation. There is no action, suit, investigation or
proceeding (or any basis therefor) pending against, or to the knowledge of
Seller, threatened against or affecting, the Business or any Purchased Asset
before any court or arbitrator or any governmental body, agency or official
which, if determined or resolved adversely in accordance with the plaintiff's
demands, would reasonably be expected to have a Material Adverse Effect or which
in any manner challenges or seeks to prevent, enjoin, alter or materially delay
the transactions contemplated hereby.
3.10 Material Contracts. (a) Except for the Contracts disclosed in
Schedule 3.10 or any other Schedule to this Agreement, with respect to the
Business, Seller is not a party to or subject to any of the following as it
relates to the Purchased Assets:
(i) any lease;
(ii) any contract for the purchase of materials, supplies, goods,
services, equipment or other assets;
(iii) any sales, distribution or other similar agreement providing
for the sale by Seller of materials, supplies, goods,
services, equipment or other assets;
(iv) any partnership, joint venture or other similar contract
arrangement or agreement;
(v) any contract relating to indebtedness for borrowed money or
the deferred purchase price of property (whether incurred,
assumed, guaranteed or secured by any asset);
(vi) any license agreement, franchise agreement or agreement in
respect of similar rights granted to or held by Seller;
(vii) any agency, dealer, sales representative or other similar
agreement;
(viii) any agreement, contract or commitment that substantially
limits the
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(ix) freedom of Seller to compete in any line of business or with
any Person or in any area or to own, operate, sell,
transfer, pledge or otherwise dispose of or encumber any
Purchased Asset or which would so limit the freedom of the
Buyer after the Closing Date;
(x) any agreement, contract or commitment which is or relates to
an agreement with or for the benefit of any Affiliate of
Seller; or
(xi) any other agreement, contract or commitment not made in the
ordinary course of business which is material to the
Business taken as a whole.
(b) Each Contract disclosed in any Schedule to this Agreement or
required to be disclosed pursuant to Section 3.10(a) is a valid and binding
agreement of Seller and is in full force and effect, and neither Seller nor, to
the knowledge of Seller, any other party thereto is in default in any material
respect under the terms of any such Contract, nor, to the knowledge of Seller,
has any event or circumstance occurred that, with notice or lapse of time or
both, would constitute any event of default thereunder.
3.11 Licenses and Permits. Schedule 3.11 correctly describes each
license, franchise, permit or other similar authorization affecting, or relating
in any way to, the Business, together with the name of the government agency or
entity issuing such license or permit (the "Permits"). Except as set forth on
the Schedule 3.11, such Permits are valid and in full force and effect and,
assuming the related Required Consents have been obtained prior to the Closing
Date, are transferable by Seller, and none of the Permits will, assuming the
related Required Consents have been obtained prior to the Closing Date, be
terminated or impaired or become terminable as a result of the transactions
contemplated hereby. Upon consummation of such transactions, Buyer will,
assuming the related Required Consents have been obtained prior to the Closing
Date, have all of the right, title and interest in all the Permits.
3.12 Compliance with Laws. Seller is not in violation of, has not
since incorporation violated, and to Seller's knowledge is not under
investigation with respect to or has not been threatened to be charged with or
given notice of any violation of, any law, rule, ordinance or regulation, or
judgment, order or decree entered by any court, arbitrator or governmental
authority, domestic or foreign, applicable to the Purchased Assets or the
conduct of the Business, except for violations that have not had and could not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.
3.13 Finders' Fees. There is no investment banker, broker, finder or
other intermediary which has been retained by or is authorized to act on behalf
of Seller who might be entitled to any fee or commission from Buyer or any of
its affiliates upon consummation of the transactions contemplated by this
Agreement.
3.14 Other Information. None of the documents or information
delivered to Buyer in connection with the transactions contemplated by this
Agreement contains any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements contained therein not
misleading.
3.15 Representations. The representations and warranties of Seller
contained in this Agreement, disregarding all qualifications and exceptions
contained therein relating to
A-7
materiality or Material Adverse Effect, are true and correct with only such
exceptions as would not in the aggregate reasonably be expected to have a
Material Adverse Effect.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Seller that:
4.01 Organization and Existence. Buyer is a corporation duly
incorporated, validly existing and in good standing under the laws of Italy and
has all corporate powers and all material governmental licenses, authorizations,
consents and approvals required to carry on its business as now conducted.
4.02 Corporate Authorization. The execution, delivery and
performance by Buyer of this Agreement and the consummation by Buyer of the
transactions contemplated hereby are within the corporate powers of Buyer and
have been duly authorized by all necessary corporate action on the part of
Buyer. This Agreement constitutes a valid and binding agreement of Buyer.
4.03 Governmental Authorization. The execution, delivery and
performance by Buyer of this Agreement require no action by or in respect of, or
filing with, any governmental body, agency, official or authority.
4.04 Non-Contravention. The execution, delivery and performance by
Buyer of this Agreement do not and will not (i) contravene or conflict with the
certificate of incorporation or bylaws of Buyer or (ii) assuming compliance with
the matters referred to in Section 4.03, contravene or conflict with any
provision of any Law, regulation, judgment, injunction, order or decree binding
upon Buyer.
4.05 Finders' Fees. There is no investment banker, broker, finder or
other intermediary which has been retained by or is authorized to act on behalf
of Buyer who might be entitled to any fee or commission from Seller or any of
its Affiliates upon consummation of the transactions contemplated by this
Agreement.
4.06 Financing. Buyer has sufficient funds available to purchase the
Purchased Assets.
4.07 Litigation. There is no action, suit, investigation or
proceeding pending against, or to the knowledge of Buyer threatened against or
affecting, Buyer before any court or arbitrator or any governmental body, agency
or official which in any matter challenges or seeks to prevent, enjoin, alter or
materially delay the transactions contemplated hereby.
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ARTICLE V
COVENANTS OF SELLER
Seller agrees that:
5.01 Conduct of the Business. From the date hereof until the Closing
Date, Seller will not:
(a) with respect to the Business acquire a material amount of
assets from any other Person;
(b) sell, Lease, License or otherwise dispose of any Purchased
Assets except (i) pursuant to existing contracts or
commitments and (ii) in the ordinary course consistent with
past practice; or
(c) agree or commit to do any of the foregoing.
Seller will not (i) take or agree or commit to take any action that would make
any representation and warranty of Seller hereunder inaccurate in any respect
at, or as of any time prior to, the Closing Date or (ii) omit or agree or commit
to omit to take any action necessary to prevent any such representation or
warranty from being inaccurate in any respect at any such time.
5.02 Access to Information. From the date hereof until the Closing
Date, Seller (a) will give Buyer, its counsel, financial advisors, auditors and
other authorized representatives full access to the offices, properties, books
and records of Seller relating to the Business during normal business hours, (b)
will furnish to Buyer, its counsel, financial advisors, auditors and other
authorized representatives such financial and operating data and other
information relating to the Business as such Persons may reasonably request and
(c) will instruct the employees, counsel and financial advisors of Seller to
cooperate with Buyer in its investigation of the Business; provided that no
investigation pursuant to this Section shall affect any representation or
warranty given by Seller hereunder; and provided further that any investigation
pursuant to this Section shall be conducted in such manner as not to interfere
unreasonably with the conduct of the business of Seller.
5.03 Notices of Certain Events. Seller shall promptly notify Buyer
of:
(i) any notice or other communication from any Person alleging that
the consent of such Person is or may be required in connection with the
transactions contemplated by this Agreement;
(ii) any notice or other communication from any governmental or
regulatory agency or authority in connection with the transactions contemplated
by this Agreement; and
(iii) any actions, suits, claims, investigations or proceedings
commenced or, to the best of its knowledge threatened against, relating to or
involving or otherwise affecting Seller or the Business that, if pending on the
date of this Agreement, would have been required to have been disclosed pursuant
to Section 3.11 or that relate to the consummation of the transactions
contemplated by this Agreement.
5.04 Non-competition. (a) Seller agrees that for a period of three
full years from the Closing Date, it shall not:
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(i) engage, either directly or indirectly, as a principal or for its
own account or solely or jointly with others, or as stockholder in any
corporation or joint stock association, in any business that competes with the
Business as it exists on the Closing Date ;or
(ii) employ or solicit, or receive or accept the performance of
services by, any previous employee of the Buyer who is or becomes employed by
the Seller;
(b) If any provision contained in this Section shall for any reason
be held invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions of this
Section, but this Section shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein. It is the intention of
the parties that if any of the restrictions or covenants contained herein is
held to cover a geographic area or to be for a length of time which is not
permitted by applicable law, or in any way construed to be too broad or to any
extent invalid, such provision shall not construed to be null, void and of no
effect, but to the extent such provision would be valid or enforceable under
applicable law, a court of competent jurisdiction shall construe and interpret
or reform this Section to provide for a covenant having the maximum enforceable
geographic area, time period and other provisions (not greater than those
contained herein) as shall be valid and enforceable under such applicable law.
Seller acknowledges that Buyer would be irreparably harmed by any breach of this
Section and that there would be no adequate remedy at law or in damages to
compensate Buyer for any such breach. Seller agrees that Buyer shall be entitled
to injunctive relief requiring specific performance by Seller of this Section,
and Seller consents to the entry thereof.
5.05 Trademarks; Tradenames. (a) After the Closing, Buyer shall have
the exclusive right to sell the products derived from the purchased Intellectual
Property Rights and to use existing packaging, labeling, containers, supplies,
advertising materials, technical data sheets and any similar materials bearing
any QueryObject Systems Corporation Trade name.
(b) Buyer shall not be obligated to change the QueryObject Systems
Corporation Trade name on goods in the hands of dealers, distributors and
customers.
ARTICLE VI
COVENANTS OF BUYER
Buyer agrees that:
6.01 Confidentiality. Prior to the Closing Date and after any
termination of this Agreement, Buyer and its Affiliates will hold, and will use
their best efforts to cause their respective officers, directors, employees,
accountants, counsel, consultants, advisors and agents to hold, in confidence,
unless compelled to disclose by judicial or administrative process or by other
requirements of law, all confidential documents and information concerning the
Business or Seller furnished to Buyer or its Affiliates in connection with the
transactions contemplated by this Agreement, except to the extent that such
information can be shown to have been (i) previously known on a non-confidential
basis by Buyer, (ii) in the public domain through no fault of Buyer or (iii)
later lawfully acquired by Buyer from sources other than Seller; provided
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that Buyer may disclose such information to its officers, directors, employees,
accountants, counsel, consultants, advisors and agents in connection with the
transactions contemplated by this Agreement (collectively, the "Buyer
Representatives") and to its lenders in connection with obtaining the financing
for the transactions contemplated by this Agreement so long as such Persons are
informed by Buyer of the confidential nature of such information and are
directed by Buyer to treat such information confidentially. The Buyer agrees
that it will be responsible for any breach of this Agreement by the Buyer's
Affiliates, the Buyer Representatives and any lenders of the Buyer. The
obligation of Buyer and its Affiliates to hold any such information in
confidence shall be satisfied if they exercise the same care with respect to
such information as they would take to preserve the confidentiality of their own
similar information. If this Agreement is terminated, Buyer and its Affiliates
will, and will use their best efforts to cause their respective officers,
directors, employees, accountants, counsel, consultants, advisors and agents to,
destroy or deliver to Seller, upon request, all documents and other materials,
and all copies thereof, obtained by Buyer or its Affiliates or on their behalf
from Seller in connection with this Agreement that are subject to such
confidence. Buyer acknowledges that Seller would be irreparably harmed by any
breach of this Section. Therefore, the Seller shall be entitled to seek
injunctive or other equitable relief in a court of competent jurisdiction to
prevent the violation of the terms of this agreement. Injunction or other
equitable relief is not intended to be an exclusive remedy, but shall be
additional to all other remedies available at law.
6.02 Access. On and after the Closing Date, Buyer will afford
promptly to Seller and its agents reasonable access to its properties, books,
records, employees and auditors to the extent necessary to permit Seller to
determine any matter relating to its rights and obligations hereunder or to any
period ending on or before the Closing Date; provided that any such access by
Seller shall not unreasonably interfere with the conduct of the business of
Buyer.
ARTICLE VII
COVENANTS OF BOTH PARTIES
The parties hereto agree that:
7.01 Best Efforts / Further Assurances. Subject to the terms and
conditions of this Agreement, each party will use its best efforts to take, or
cause to be taken, all actions and to do, or cause to be done, all things
necessary or desirable under applicable laws and regulations to consummate the
transactions contemplated by this Agreement. Seller and Buyer each agree to
execute and deliver such other documents, certificates, agreements and other
writings and to take such other actions as may be necessary or desirable in
order to consummate or implement expeditiously the transactions contemplated by
this Agreement and to vest in Buyer good and marketable title to the Purchased
Assets.
7.02 Certain Filings. Seller and Buyer shall cooperate with one
another (a) in determining whether any action by or in respect of, or filing
with, any governmental body, agency, official or authority is required, or any
actions, consents, approvals or waivers are required to be obtained from parties
to any material contracts, in connection with the consummation of the
transactions contemplated by this Agreement and (b) in taking such actions
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or making any such filings, furnishing information required in connection
therewith and seeking timely to obtain any such actions, consents, approvals or
waivers.
7.03 Public Announcements. The parties agree to consult with each
other before issuing any press release or making any public statement with
respect to this Agreement or the transactions contemplated hereby and, except as
may be required by applicable law or Securities Law or any listing agreement
with any national securities exchange, will not issue any such press release or
make any such public statement prior to such consultation.
ARTICLE VIII
TAX MATTERS
8.01 Tax Definitions. The following terms, as used herein, have the
following meanings:
"Code" means the Internal Revenue Code of 1986, as amended.
"Post-Closing Tax Period" means any Tax period (or portion thereof)
ending after the Closing Date.
"Pre-Closing Tax Period" means any Tax period (or portion thereof)
ending on or before the close of business on the Closing Date.
"Tax" means any net income, alternative or add-on minimum tax, gross
income, gross receipts, sales, use, ad valorem, franchise, capital, paid-up
capital, profits, green-mail, license, withholding, payroll, employment, excise,
severance, stamp, occupation, premium, property, environmental or windfall
profit tax, custom, duty or other tax, governmental fee or other like assessment
or charge or any kind whatsoever, together with any interest or any penalty,
addition to tax or additional amount imposed by any governmental authority
(domestic or foreign) responsible for the imposition of any such tax.
8.02 Tax Matters. Seller hereby represents and warrants to Buyer
that:
(a) Seller has timely paid all Taxes, and all interest and penalties
due thereon and payable by it for the Pre-Closing Tax Period which will have
been required to be paid on or prior to the Closing Date, the non-payment of
which would result in a Lien on any Purchased Asset, would otherwise adversely
affect the Business or would result in Buyer becoming liable or responsible
therefor.
(b) Seller has established, in accordance with generally accepted
accounting principles applied on a basis consistent with that of preceding
periods, adequate reserves for the payment of, and will timely pay all Tax
liabilities, assessments, interest and penalties which arise from or with
respect to the Purchased Assets or the operation of the Business and are
incurred in or attributable to the Pre-Closing Tax Period, the non-payment of
which would result in a Lien on any Purchased Asset, would otherwise adversely
affect the Business or would result in Buyer becoming liable therefor.
12
ARTICLE IX
CONDITIONS TO CLOSING
9.01 Conditions to the Obligations of Each Party. The obligations of
Buyer and Seller to consummate the closing are subject to the satisfaction of
the following conditions:
(a) Any applicable waiting period under the HSR Act relating to the
transactions contemplated hereby shall have expired or been terminated.
(b) No provision of any applicable law or regulation and no
judgment, injunction, order or decree shall (i) prohibit the consummation of the
Closing or (ii) restrain, prohibit or otherwise interfere with the effective
operation or enjoyment by Buyer of all or any material portion of the Purchased
Assets.
(c) All actions by or in respect of or filings with any governmental
body, agency, official or authority required to permit the consummation of the
Closing shall have been obtained.
9.02 Conditions to Obligation of Buyer. The obligation of Buyer to
consummate the Closing is subject to the satisfaction of the following further
conditions:
(a) (i) Seller shall have performed in all material respects all of
its obligations hereunder required to be performed by it at or prior to the
Closing Date, (ii) the representations and warranties of Seller contained in
this Agreement and in any certificate or other writing delivered by Seller
pursuant hereto, disregarding all qualifications and exceptions contained
therein relating to materiality or Material Adverse Effect, shall be true at and
as of the Closing Date, as if made at and as of such date with only such
exceptions as would not in the aggregate reasonably be expected to have a
Material Adverse Effect and (iii) Buyer shall have received a certificate signed
by the Chief Executive Officer of Seller to the foregoing effect.
(b) No court, arbitrator or governmental body, agency or official
shall have issued any order, and there shall not be any statute, rule or
regulation, restraining or prohibiting the consummation of the Closing or the
effective operation by Buyer of the Purchased Assets after the Closing Date, and
no proceeding challenging this Agreement or the transactions contemplated hereby
or seeking to prohibit, alter, prevent or materially delay the Closing shall
have been instituted by any Person before any court, arbitrator or governmental
body, agency or official and be pending.
(c) Buyer shall have received an opinion of its own appointed
counsel, dated the Closing Date to the effect specified in Sections 3.01 through
3.04 and 3.09. In rendering such opinion, such counsel may rely upon
certificates of public officers, as to matters governed by the laws of
jurisdictions other than Italy, upon opinions of other appointed counsel of
Buyer reasonably satisfactory to Buyer, copies of which shall be
contemporaneously delivered to Buyer, and as to matters of fact, upon
certificates of officers of Seller.
13
(d) Execution and delivery of other relevant agreements, including
non-compete, trademark or software licenses, leases, supply, service or
administrative agreements or other transition agreements as shall be necessary
or appropriate to transfer, convey and assign the Purchased Assets to Buyer on
the Closing Date and as shall be reasonably requested by the Buyer.
(e) Seller shall have received all Required Consents and all
consents, authorizations or approvals from the governmental agencies referred to
in Section 3.03, in each case in form and substance reasonably satisfactory to
Buyer, and no such consent, authorization or approval shall have been revoked.
(f) Buyer shall have received all documents it may reasonably
request relating to the existence of Seller and the authority of Seller for this
Agreement, all in form and substance reasonably satisfactory to Buyer.
9.03 Conditions to Obligation of Seller. The obligation of Seller to
consummate the Closing is subject to the satisfaction of the following further
conditions:
(a) (i) Buyer shall have performed in all material respects all of
its obligations hereunder required to be performed by it at or prior to the
Closing Date, (ii) the representations and warranties of Buyer contained in this
Agreement and in any certificate or other writing delivered by Buyer pursuant
hereto shall be true in all material respects at and as of the Closing Date, as
if made at and as of such date, (iii) Seller shall have received a certificate
signed by the Chief Executive Officer of Buyer to the foregoing effect and (iv)
the stockholders of the Seller shall have approved this Agreement.
(b) Seller shall have received all documents it may reasonably
request relating to the existence of Buyer and the authority of Buyer for this
Agreement, all in form and substance reasonably satisfactory to Seller.
(c) Execution and delivery of other relevant agreements, including
non-compete, trademark or software licenses, leases, supply, service or
administrative agreements or other transition agreements as shall be necessary
or appropriate to transfer, convey and assign the Purchased Assets to Buyer on
the Closing Date and as shall be reasonably requested by the Seller.
(d) Seller shall have received all Required Consents and all
consents, authorizations or approvals from the governmental agencies referred to
in Section 3.03, in each case in form and substance reasonably satisfactory to
Buyer, and no such consent, authorization or approval shall have been revoked.
ARTICLE X
TERMINATION
10.01 Grounds for Termination. This Agreement may be terminated at
any time prior to the Closing:
14
(i) by mutual written agreement of Seller and Buyer;
(ii) by either Seller or Buyer if the Closing shall not have been
consummated on or before April 30, 2002; or
(iii) by either Seller or Buyer if consummation of the transactions
contemplated hereby would violate any non-appealable final order, decree or
Judgment of any court or governmental body having competent jurisdiction.
The party desiring to terminate this Agreement pursuant to clauses
(ii) or (iii) shall give notice of such termination to the other party.
10.02 Effect of Termination. If this Agreement is terminated as
permitted by Section 11.01, such termination shall be without liability of
either party (or any shareholder, director, officer, employee, agent, consultant
or representative of such party) to the other party to this Agreement; provided
that if such termination shall result from the willful failure of either party
to fulfill a condition to the performance of the obligations of the other party
or to perform a covenant of this Agreement or from a willful breach by either
party to this Agreement, such party shall be fully liable for any and all losses
incurred or suffered by the other party as a result of such failure or breach.
The provisions of Sections 6.01 and 12.03 shall survive any termination hereof
pursuant to Section 10.01.
ARTICLE XI
MATERIAL TRANSACTION
11.01 For seven (7) days after the date hereof (the "Solicitation
Period"), the Seller and its subsidiaries, Affiliates and their respective
officers, directors, employees, advisors, representatives and agents (each a
"Company Party") shall initiate and pursue such inquiries, discussions or
negotiations with any third parties as the Seller's Board of Directors in
consultation with its advisors shall determine in its sole discretion with
respect to any merger, sale of assets, sale of shares of capital stock,
recapitalization, tender or exchange offer, liquidation or similar transaction
involving the Seller and/or any of its subsidiaries or divisions (each a
"Material Transaction"). If at any time during the Solicitation Period, the
Company Parties receive from persons or entities (each a "Third Party")
indications of interest, whether or not in the form of offers, with respect to a
Material Transaction that the Seller's Board of Directors in good faith believes
may result in the consummation of a Material Transaction, then for a further
period of thirty (30) days commencing on the first day after the expiration of
the Solicitation Period, the Seller's Board of Directors may, or may cause any
Company Party to (i) engage in discussions or negotiations with any such Third
Party regarding a Material Transaction; (ii) furnish information in writing or
orally to any such Third Party; (iii) otherwise cooperate with and assist any
such Third Party in formulating a bona fide offer to consummate a Material
Transaction (a "Material Transaction Proposal") and in consummating a Material
Transaction; (iv) following receipt of a Material Transaction Proposal, taking
and disclosing to its stockholders a position contemplated by Rules 14d-9 and
14e-2(a) under the 1934 Act or otherwise making disclosure to its stockholders;
(v) following receipt of a Material Transaction Proposal, failing to make or
withdrawing or modifying its recommendation with regard to the
15
transactions contemplated by this Agreement; and/or (vi) terminating this
Agreement, but in each case referred to in the foregoing clauses (iv) through
(vi), only to the extent that, the Seller's Board of Directors shall have
concluded in good faith upon the advice of counsel that such action is
consistent with its fiduciary duties to the stockholders of the Seller under
applicable law.
11.02 Except as provided in Section 11.01, the Seller shall not, nor
shall the Seller authorize or permit any other Company Party, directly or
indirectly, to solicit, initiate or take any action knowingly to facilitate the
submission of inquiries, proposals or offers from any Third Party with respect
to a Material Transaction; provided, however, that the foregoing shall not
prohibit the Board of Directors of the Seller, either directly or indirectly
through any Company Party from taking any of the actions specified in clauses
(i) through (vi) of Section 11.01 in response to an unsolicited inquiry,
proposal or offer with respect to a Material Transaction, subject, nevertheless,
to the terms and conditions of the second sentence of Section 11.01.
11.03 The Board of Directors of the Seller shall (i) promptly notify
Buyer in writing if any Material Transaction Proposal is made, or any
discussions or negotiations are sought to be initiated, any inquiry, or proposal
or contact is made or any information is requested with respect to a Material
Transaction; (ii) promptly notify Buyer of the receipt of any Material
Transaction Proposal it may receive, describing in reasonable detail the
material terms and conditions thereof and the identity of the Third Party making
such Material Transaction Proposal; and (iii) keep Buyer reasonably informed of
the status of any Material Transaction Proposal and of the Third Party's efforts
and activities with respect thereto.
11.04 In addition, if the Seller proposes to enter into a definitive
agreement in connection with a Material Transaction, it shall concurrently with
the execution and delivery of such agreement, pay or cause to be paid to Buyer
the amount of $70,000 plus any outstanding principal and interest due on the
Notes. As a result of the foregoing, the Notes will be canceled and all security
interests that Buyer holds on the assets of the Sellers shall be released.
11.05 The Seller shall use all commercially reasonable efforts to
complete this Agreement on an expeditious basis notwithstanding the activities
contemplated by this Article 11.
11.06 If the Seller enters into a definitive agreement for a
Material Transaction with a party other than the Buyer, the Seller will
immediately grant to the Buyer, a perpetual Software Source Code License
Agreement (the "Perpetual Agreement"). The Perpetual Agreement will be an
exclusive license for the territory of Europe.
ARTICLE XII
MISCELLANEOUS
12.01 Notices. All notices, requests and other communications to
either party hereunder shall be in writing (including telecopy or similar
writing) and shall be given,
16
if to Buyer, to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Fax: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
if to Seller, to:
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
Fax: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
12.02 Amendments; No Waivers. (a) Any provision of this Agreement
may be amended or waived prior to the Closing Date if, and only if, such
amendment or waiver is in writing and signed, in the case of an amendment, by
Buyer and Seller, or in the case of a waiver, by the party against whom the
waiver is to be effective.
(b) No failure or delay by either party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
12.03 Expenses. Except as otherwise provided herein, all costs and
expenses incurred in connection with this Agreement shall be paid by the party
incurring such cost or expense.
12.04 Successors and Assigns. The provisions of this Agreement shall
be binding upon and insure to the benefit of the parties hereto and their
respective successors and assigns; provided that neither party may assign,
delegate or otherwise transfer any of its rights or obligations under this
Agreement without the consent of the other party hereto except that Buyer may
transfer or assign, in whole or from time to time in part, to one or more of its
Affiliates, the right to purchase all or a portion of the Purchased Assets, but
no such transfer or assignment will relieve Buyer of its obligations hereunder.
12.05 Force Majeure. Neither Party shall be liable in damages or
have the right to terminate this Agreement for any delay or default in
performing hereunder if such delay or default is caused by conditions beyond its
control including, but not limited to, Acts of God, Government restrictions
(including the denial or cancellation of any export or other necessary license),
wars, insurrections and/or any other cause beyond the reasonable control of the
Party whose performance is affected, provided that, as a condition to the claim
of non-liability, the Party experiencing the difficulty shall give the other
prompt written notice, with full details following the occurrence of the cause
relied upon. Dates by which performance obligations are scheduled to be met will
be extended for a period of time equal to the time lost due to any delay so
caused.
17
12.06 Disputes Arising Under This Agreement. (a) All disputes
arising in connection with this Agreement shall be settled, if possible, by
amicable negotiation of the Parties. If the matter is not resolved by
negotiations, any Party may by the giving of written notice, cause the matter to
be referred to a meeting of appropriate higher management of the Parties. Such
meeting shall be held within ten (10) business days following the giving of the
written notice.
(b) If the matter is not resolved within twenty (20) business days
after the date of the notice referring the matter to appropriate higher
management, or such later date as may be unanimously agreed upon, then the
dispute shall be finally settled by arbitration without recourse to common or
commercial courts. Each Party shall have the right to send a request in writing,
with notices to the other Parties, to the President of the International Chamber
of Commerce stating its desire to resolve the dispute before an arbitration
panel of three arbitrators appointed by the President of the ICC under its
rules. Each of the Parties to the dispute shall have the right to appoint one
non-voting, advisory arbitrator to serve on the arbitration panel.
(c) The seat of arbitration shall be in Geneva, Switzerland, and
shall be conducted in the English language, in accordance with the Rules of
Conciliation and Arbitration of the International Chamber of Commerce. The
decision of the arbitrators shall be final and binding upon the Parties, and no
Party shall have the right to seek recourse to a law court or other authorities
to appeal for revisions of such decision.
(d) Reasonable expenses of the arbitration shall be shared equally
among the Parties.
12.07 Governing Law. This Agreement shall be construed in accordance
with and governed by the laws of Italy without regard to the principles of
conflicts of laws thereof.
12.08 Counterparts; Effectiveness. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall become effective when each party hereto shall have received
a counterpart hereof signed by the other party hereto.
12.09 Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all prior agreements, understandings and negotiations, both written
and oral, between the parties with respect to the subject matter of this
Agreement. Representation, inducement, promise, understanding, condition or
warranty not set forth herein has been made or relied upon by either party
hereto. Neither this Agreement nor any provision hereof is intended to confer
upon any Person other than the parties hereto any rights or remedies hereunder.
12.10 Captions. The captions herein are included for convenience of
reference only and shall be ignored in the construction or interpretation
hereof.
18
IN WITNESS HEREOF, the parties hereto here caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
CrossZ Solutions S.p.A.
/S/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------
By: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Executive Officer
QueryObject Systems Corporation
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
19
Schedule 3.05a
Required Consents
1) For the Seller - Approval by its Board of Directors.
Transmitted by Fax on Dec. 11, 2001
2) For the Seller - Approval by its stockholders.
To be provided upon Final Closing of the transaction.
Schedule 3.07a
Intellectual Property
Brand Assets.
-------------
For the following:
QueryObject System, QueryObject, QueryObject Analyzer, internetQueryObject, iQO,
QueryObjectexchange and QOxchange, CustomerView, BasketView, QueryObject Systems
Corporation and CrossZ Software, ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, ▇▇▇.▇▇▇▇▇▇.▇▇▇,
▇▇▇.▇▇▇.▇▇▇ .
Seller will transfer to Buyer:
All rights to use the brand names,
All marketable titles,
All registrations,
Ownership of all registered WorldWideWeb domains.
Terms & Conditions.
-------------------
Letters of assignment of the above should be transmitted to Buyer at the Final
Closing of the Purchase Agreement.
Buyer will assign to Seller by Jan 15 2002, a non-transferable right to use
QueryObject brand name for a period of 6 months free of charge. After this
period use of the brand name will be subject to payment of royalties in the
measure of 10% of the revenues generated with a minimum of US$ 10,000 (Ten
Thousand US Dollars).
Software
For the software products listed below Seller will deliver:
1) All source code written by Seller employees and/or contractors.
2) All development environments needed to compile and link the software,
exclusive of any 3rd party software for which Seller does not have this right
(ex. Microsoft Windows NT OS, JREs or various libraries where Seller only has
Binary Code, in this case Seller will provide the Binaries).
3) All Source Control files (Currently held in Microsoft SourceSafe and in
appropriate UNIX environments).
4) All Make scripts for all versions
5) All Seller documentation for both end user and developers
6) All Feature Enhancement Requests, Functional and Detail Specifications that
Seller has created and used for these software
7) All training materials used for internal personnel and end user customer
training
Upon delivery of the above, Buyer system will be able to run the Make scripts to
successfully build the versions of the software listed below.
QueryObject System Engine Versions 3.0, 3.10, 3.11, 3.20
QueryObject System Server Versions 3.0, 3.10, 3.11, 3.20
QueryObject System ODBO Provider and Server Version 3.20
QueryObject System Engine Control Component Version 3.20
QueryObject System DBA & Designer 3.0, 3.10, 3.11, 3.20
QueryObject System Java Control Panel Version 3.11, 3.20
QueryObject System Engine Management Server 3.20
QueryObject System Voyager
QueryObject System Viewer
Seller will deliver all software developments in the form of source code for all
versions or enhancements of the products currently under development and not yet
in production (like, but not limited to, Release 4.0).
Terms & Conditions.
-------------------
A consultancy contract with key Seller's employees deemed critical for the
complete transfer of the Intellectual Property shall be executed at the date of
the execution of this agreement. Such consultancy contract is in Exhibit C.
Buyer will pay the fees contemplated in such consultancy contract for the time
such contract will be active.
Schedule 3.07d
Material Property
For the Seller - all furniture, fixtures, computer equipment necessary to
support the employees hired by the Buyer.
Hardware Requirements to support
Queryobject System's IT infrastructure.
1. Hardware requirements for Engineers.
---------------------- ----------------- ---------- ------------------------------------------------------
Hardware assigned Operation system Serial No Description
---------------------- ----------------- ---------- ------------------------------------------------------
Sony Vaio Laptop NT / 2000 / XP Xxx-xxxx Personal Mobile and light development environment
Intel based Desktop NT / 2000 / XP Xxx-xxxx Personal Office and extensive development environment
UPS Xxx-xxxx Protection from power related incidents/
Sony Vaio Laptop NT / 2000 / XP Xxx-xxxx Personal Mobile and light development environment
Intel based Desktop Xxx-xxxx Personal Office and extensive development environment
UPS Xxx-xxxx Protection from power related incidents/
Sony Vaio Laptop NT / 2000 / XP Xxx-xxxx Personal Mobile and light development environment
Intel based Desktop NT / 2000 / XP Xxx-xxxx Personal Office and extensive development environment
UPS Xxx-xxxx Protection from power related incidents/
Sony Vaio Laptop NT / 2000 / XP Xxx-xxxx Personal Mobile and light development environment
Intel based Desktop NT / 2000 / XP Xxx-xxxx Personal Office and extensive development environment
UPS Xxx-xxxx Protection from power related incidents/
Sony Vaio Laptop NT / 2000 / XP Xxx-xxxx Personal Mobile and light development environment
Intel based Desktop NT / 2000 / XP Xxx-xxxx Personal Office and extensive development environment
UPS Xxx-xxxx Protection from power related incidents/
2. Hardware required for Development Support
Hardware Operating System Serial No Description
-------- ---------------- --------- -----------
Unix Servers
------------
Sun E450 Solaris 8 12878102 Main Development environment for SUN Solaris.
Compaq ES40 Tru64 5.0 AY01300486 Main Development environment for Compaq Tru64.
Backup for main development environment for Compaq
Tru64.
Compaq Alpha 2100 Digital UX 4.X QO000519 Need to support old OS versions.
Sun Ultra 10 Solaris 8 FW82553614 Backup for main development environment for Sun
Solaris. Need to support old OS versions.
HP HP 10.20 US10134520 Main Development environment for HP UX.
Windows Based Systems
---------------------
Build Machine Windows NT 4.0 D944CNK1K952 Main Development environment for Windows NT 4
Source Safe Server Windows NT 4.0 D025DKG1K586 Source Safe repository.
Backup None QO000503 Backup server for either source safe or build machine.
Misc. Hardware
--------------
Net App. 30058 Network Appliance server to provide disk space to all
File Server. development Unix servers.
Printer HP QO000245 Developer printer
Ping Pong Table For lunches.
Foosball Table For stress relief.
Expresso Machine
3. Hardware for Company's IT infrastructure
Hardware Description Serial No.
-------- ----------- ----------
Servers
-------
Storage Server Company's file server. Based on Raid Zone
Hardware. QO000553
Mail Server Company's file server. Will be installed on
IBM's Netfinity server. 23B0790
Backup Mail Server Backup Mail server. Any Intel based server
will be allocated. QO00504
Any Intel based server will be allocated.
Will be used for Intranet, Ftp and News Server. D944CNK1K992
Web services Server Any Intel based server will be allocated.
Will be used as a main Domain D951CNK1K256
Domain/Directory Server Controller, Print Server and fax Server.
Any Intel based server will be allocated. D951CNK1K182
Will be used as a backup to main Domain Controller,
Backup Domain/Directory Server Print Server and fax Server.
Linux Based Internal Router Any Intel based server will be allocated. QO000504
Network Support
---------------
DSL Modem Modem for DSL broadband communication. 01B410927972
Firewall Firewall protection to the company resources. SCF17168
24 Port Switch Internal networking for MIS servers. QO000555
24 Port Switch Internal networking for Development servers. QO000408
14 Port Switch Internal networking for QA servers. QO000567
14 Port Switch LAN switch QO000547
Misc. Hardware.
---------------
Networking Cabinet. 1 needed. To mount networking switches or hubs. QO000548
Storage server Cabinet. For Raid Zone and Network Appliance servers. QO000549
Server Cabinet. 2 needed. To mount corporate servers.
Corporate Printer Main office printer. QO000479
4. Hardware for Quality Assurance Testing
Hardware Description Serial No.
-------- ----------- ----------
Unix Servers
------------
Sun Ultra 5 Testing the SUN Solaris port. 637F0DD9
Alpha 2100 Testing the Tru64 port. QO000546
HP Testing the SUN HP port. US67245198
Linux Server Testing the QOServer port to Linux. Also
QA's file server. QO000588
15 Windows Based Servers For stress testing.
Terms & Conditions.
-------------------
The following activities must be performed:
(a) Shipment to Buyer of all material property listed above
(unless diversely agreed upon) including all documentation
available by January 15, 2002
(b) Installation and Configuration the computer and communication
equipment shipped after Point (a) at Buyer site by Seller's
personnel upon receiving of goods.
Shipping costs for item (a) will be borne by Buyer. Activity under item (b) will
be performed as part of the Consultancy Contract in Exhibit C.
Schedule 3.10
Contracts
The following:
CrossZ Solutions, S.p.A.
MCI Telecommunications Corporation
Worldcom
EDS
Acxiom Corporation
Memberworks
Lonja Financeira
contracts will be assigned to the Buyer to the extent they are assignable at
Final Closing.
Schedule 3.11
Licenses & Permits
For the Seller - NONE
Schedule 9.02
Receivables
1. Invoice # 101040, Dated 8/2/01, issued to CrossZ Solutions for $221,831
2. Invoice # 101042, Dated 9/14/01, issued to CrossZ Solutions for $49,583