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EXHIBIT 2.02
AGREEMENT FOR PURCHASE OF ASSETS
THIS AGREEMENT made this ___ day of November, 1999, by and between FDI
Information Resources, Inc., an Arizona corporation, ("FDI CORPORATION") and FDI
Information, LLC, an Arizona limited liability company (f/k/a FDI Information
Resources, LLC) ("FDI Information"), each having its principal place of business
located at ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (with FDI
Corporation and FDI Information being referred to together hereinafter as the
"FDI Parties"), and ▇▇▇▇▇▇▇▇.▇▇▇, Inc., a Delaware corporation, with its
principal place of business at ▇▇▇▇-▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ("NEOFORMA").
W I T N E S S E T H:
WHEREAS, FDI Corporation is presently in the business of developing,
maintaining, marketing and selling comprehensive, computer-based equipment
planning tools primarily for use in the construction and/or redesign of
healthcare facility projects (with such business, whether operated by FDI
Corporation or FDI Information previously, being referred to hereinafter as the
"FDI BUSINESS"), which business was transferred to it by FDI Information;
WHEREAS, FDI Corporation desires to sell the tangible and intangible
assets listed on Schedule A hereto (the "ASSETS"), which include all rights to
the software marketed by FDI Corporation in connection with the FDI Business as
more particularly described on Schedule A (the "SOFTWARE"), the "INTELLECTUAL
PROPERTY" (as hereinafter defined), and the "CONTRACTS" (as hereinafter
defined); and
WHEREAS, Neoforma desires to acquire the Assets from FDI Corporation
upon the terms and conditions set forth herein;
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NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. PURCHASE AND SALE OF ASSETS; PURCHASE OF STOCK
1.01 Assets to Be Sold. Subject to the terms and conditions hereof,
FDI Corporation agrees to sell and Neoforma agrees to purchase the Assets.
1.02 Amount and Payment of Purchase Price for the Assets. The
purchase price for the Assets shall be paid as follows:
(a) By the issuance to FDI Corporation of 350,000 shares of
the common stock, par value $0.001, of Neoforma (the "ACQUIRED SHARES"); and
(b) Reimbursement at the Closing in immediately available
funds for costs incurred by the FDI Parties in connection with this transaction
to be supported by documentation reasonably acceptable to Neoforma presented at
the Closing, provided that reimbursement under this paragraph (b) shall not
exceed $75,000.
1.03 Nonassumption of Liabilities and Indemnification. Neoforma does
not assume any liabilities of either of the FDI Parties whatsoever except for
those obligations being assumed under the Contracts. Neoforma hereby acquires
ownership of the Assets free and clear of all claims whatsoever, and the FDI
Parties warrant that such sale has been accomplished without expense or
liability for any such claims to Neoforma.
1.04 Allocation of Purchase Price. The Purchase Price (consisting
solely of the amounts payable under Sections 1.02 (a) and (b) hereunder) shall
be allocated among the Assets in Neoforma's sole discretion. Such allocation
shall be set forth as provided in a memorandum to be prepared by Neoforma and
delivered to FDI Corporation at the Closing.
SECTION 2. CLOSING.
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2.01 Effective Date. The closing (the "CLOSING") of this transaction
shall be deemed to be effective on the date of this Agreement.
2.02 Deliveries of FDI Corporation. At the Closing, FDI Corporation
is obligated to execute and deliver or cause to be delivered to Neoforma, and
Neoforma shall accept:
(a) A duly executed ▇▇▇▇ of sale with warranty covenants of
title, conveying good and marketable title in the Assets to Neoforma, free and
clear of all encumbrances whatsoever.
(b) All other documents of title, transfer or assignment
necessary to transfer ownership to Neoforma of the Assets.
(c) Assignments of all Intellectual Property and Contracts
in form reasonably satisfactory to FDI Corporation and Neoforma.
(d) All documents necessary to transfer any other intangible
property being purchased by Neoforma hereunder.
(e) All such other deeds, endorsements, assignments and
other instruments as, in the opinion of Neoforma's counsel, are necessary or
desirable to vest in Neoforma good, valid and marketable title to and ownership
of the Assets, all of which shall be in form reasonably satisfactory to FDI
Corporation.
(f) A certified copy of resolutions of the board of
directors and/or shareholders of FDI Corporation approving the execution and
delivery of this Agreement and the transactions contemplated hereunder.
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(g) Such certificates issued by the Arizona Corporation
Commission as required to evidence the legal existence and good standing of the
FDI Corporation, and FDI Corporation's current Articles of Incorporation and
By-laws ("ORGANIZATIONAL DOCUMENTS").
(h) The results of a search of all appropriate Uniform
Commercial Code filing offices evidencing the existence of no liens, security
interests or encumbrances of any kind whatsoever affecting the Assets being
conveyed to Neoforma hereunder.
2.03 Deliveries of Neoforma. At the Closing, Neoforma shall execute
and deliver or cause to be delivered to FDI Corporation, and FDI Corporation
shall accept:
(a) The amount required to be paid under Section 1.02 (b)
above in the form of immediately available funds.
(b) Certificates evidencing the Acquired Shares, duly issued
in the name of FDI Corporation.
SECTION 3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF FDI CORPORATION.
The FDI Parties, jointly and severally, represent, warrant and covenant
that as of the date hereof:
3.01 Organization; No Subsidiaries; Etc. FDI Corporation is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Arizona. FDI Corporation has no subsidiaries and does not own of
record or beneficially, directly or indirectly, any capital stock or equity
interest or investment in any other corporation, limited liability company,
partnership, joint venture, association or other business entity. All of the
shareholders of FDI Corporation are listed on Schedule 3.01 hereto. FDI
Corporation has the
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power to own its properties and to carry on its business as now being conducted.
FDI Corporation is not qualified as a foreign corporation in any jurisdiction.
FDI Corporation is duly qualified to do business in each jurisdiction in which
it operates and in which the failure to qualify as a foreign corporation would
have a material adverse effect on the business, assets (including intangible
assets), financial condition or results of its operations. FDI Corporation has
delivered a true and correct copy of its Articles of Incorporation and By-laws,
each as amended to date, to Neoforma, which documents are complete and correct
copies of such instruments as presently in effect.
3.02 Authorization; Etc. The FDI Parties have full power and
authority to enter into this Agreement and to carry out the terms and provisions
hereof, to execute and deliver the ▇▇▇▇ of sale of assets and other instruments,
assignments, agreements and undertakings provided herein, all of which have been
duly authorized by all proper and necessary action of FDI Corporation; and this
Agreement has been, and the other documents provided for herein will be, duly
executed and delivered; and this Agreement is, and all the other documents
represent, the legal, valid and binding obligations of FDI Corporation
enforceable in accordance with its and their terms.
3.03 No Violation. The execution and delivery of this Agreement and
the other documents delivered in connection herewith and the consummation of the
transactions herein and therein contemplated will not violate or conflict with,
or result in a breach of, or constitute (with or without notice and/or lapse of
time and/or failure to cure) a default or event of default under, any indenture,
mortgage, deed of trust, agreement or other instrument to which FDI Corporation
is a party or by which it or any of the Assets is bound, and will not violate
the
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provisions of the Articles of Incorporation or By-Laws of FDI Corporation or any
laws of the United States or the State of Arizona. FDI Corporation shall assume
all responsibility, cost, expense and liability for compliance with any plant
closing laws or similar laws or regulations applicable to the transactions
herein.
3.04 Interim Operations. Since August 31, 1999, FDI Corporation's and
FDI Information's business has been conducted only in the ordinary and usual
course consistent with past practice (whether by FDI Corporation or FDI
Information). Since August 31, 1999, there has not been; (i) any material
adverse change in the financial condition, assets or results of operations of
the FDI Business; (ii) any liabilities incurred outside the normal course of the
FDI Business; (iii) any sale of property, plant or equipment or any sale of
inventory outside the normal course of the FDI Business; or (iv) any plant
shutdowns or work slow-downs in connection with the FDI Business. Since such
date the Assets have not been affected in any adverse way as a result of flood,
fire, explosion or other casualty (whether or not covered by insurance). FDI
Corporation is not aware of any circumstances which are likely to cause any
material adverse change in the FDI Business or underlying operations or
prospects respecting the FDI Business.
3.05 Notices. Neither FDI Corporation or FDI Information has any
knowledge of any environmental, safety, health, employment or other law, rule or
regulation which might have an adverse effect on the Assets. Schedule 3.05
hereto sets forth all governmental or regulatory authorities that have contacted
FDI Corporation or FDI Information concerning alleged violations of laws, rules,
regulations, orders, ordinances and other legal requirements relating to the
Assets or the FDI Business, and all compliance programs relating thereto
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established by any government or regulatory authority which it has received
since the establishment of the FDI Business. FDI Corporation has provided
Neoforma with copies of all notices, correspondence, agreements and other
documents relating to any matters set forth on Schedule 3.05.
3.06 Title to Assets, Encumbrances. FDI Corporation has and on the
date hereof will have good and marketable title to the Assets and Neoforma will
acquire good, valid and marketable title to the Assets, free and clear from any
mortgages, pledges, liens, security interests, conditional sales agreements or
other such encumbrances or charges of any kind. The ▇▇▇▇ of sale, deeds,
endorsements, assignments and other instruments to be executed and delivered to
Neoforma by FDI Corporation at the Closing will be valid and binding obligations
of FDI Corporation enforceable in accordance with their terms, and will
effectively vest in Neoforma good, valid and marketable title in the Assets.
3.07 Tangible Assets. The tangible assets listed on Schedule A hereto
are in good operating condition and repair, with no defects, and are adequate
for the uses to which they are being put and are not in need of maintenance or
repairs except for ordinary, routine maintenance and repairs which are not
material relative to such Asset in nature or cost.
3.08 Intellectual Property. FDI Corporation owns or is licensed or
otherwise has the right to use all of its trademarks, service marks, tradenames
and copyrights, the Software and all agreements, arrangements and applications
relating thereto (including all licenses), including but not limited to FDI
TechSpec and FDI-EQPlan, and all agreements relating to technology, know-how or
processes (the "INTELLECTUAL PROPERTY"). FDI Corporation has no registered
trademarks or service marks nor have any applications for registration of any
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trademark or service ▇▇▇▇ been filed. FDI Corporation has not filed any
applications for copyright registration with respect to the Software or
otherwise, except for those matters attached hereto as Schedule 3.08. There are
no patents respecting the FDI Business or required in connection with the
continued operation of the FDI Business. Schedule A hereto contains a true,
accurate and complete list of Intellectual Property and all claims against third
parties and other choses in action, prepaid expenses, permits, authorizations,
registrations and other approvals respecting the FDI Business, whether from any
public or self-regulatory authority of Seller, or otherwise, and the goodwill
inherent in such property and in the FDI Business as a going concern. There are
not nor have there been any trademark or copyright claims of infringements, nor
any claims, charges or suits against FDI Corporation in relation to the Assets
or Intellectual Property, or is FDI Corporation aware of any basis for any such
claim, and to the best of FDI Corporation's knowledge the use of any of the
Intellectual Property as it has been used by FDI Corporation does not infringe
upon the rights of any other person. No consent or permission of any third party
is required to use the Intellectual Property in connection with the FDI Business
in the manner as currently operated.
3.09 Tax Liens.
(a) As used herein, "Taxes" shall mean all taxes, charges,
fees, levies, imposts or other assessments, including, without limitation,
income, gross receipts, excise, use, transfer, property, sales, license,
payroll, withholding and franchise taxes, imposed by the United States, or any
state or local government or subdivision or agency thereof whether computed on a
unitary, combined or any other basis, and also including any interest and
penalties or additions thereto.
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(b) As of the date hereof, there are no liens with respect
to Taxes (other than taxes not yet due or payable) in connection with FDI
Corporation's business. FDI Corporation has reserved for, paid, withheld,
collected, and paid over to the proper government authorities all Taxes which
are required to be paid, withheld, collected, or paid over on or prior to the
date hereof. Neither the Internal Revenue Service nor any other taxing authority
is now asserting or, to the knowledge of FDI Corporation threatening to assert
against FDI Corporation any deficiency or claim for additional taxes or interest
thereon or penalties in connection therewith.
3.10 Contracts and Commitments. Schedule A hereto sets forth a true,
complete and correct list of all agreements, contracts, commitments, software or
other licenses, franchises, understandings or restrictions, whether oral or
written, of FDI Corporation (the "CONTRACTS"). FDI Corporation is not a party to
any other agreement, contract, commitment or restriction relating to the FDI
Business which is not disclosed and which requires any further performance prior
to its termination. FDI Corporation is not in default under any of the Contracts
and all of the Contracts are in full force and effect, and no event has occurred
which with the passing of time (including any cure period) or the giving of
notice would constitute such default, and true copies of all Contracts have been
heretofore made available to Neoforma. All of the contracts necessary to operate
the FDI Business have been transferred by FDI Information to FDI Corporation.
3.11 Customers and Suppliers. The written books and records provided
to Neoforma reflect, in all material respects, accurate information from which
Neoforma can determine the names and addresses of FDI Corporation's (or FDI
Information's) customers and suppliers
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during the last fiscal year of FDI Corporation (or FDI Information) and the date
and products, by type, amount and dollar value, purchased or sold by them.
3.12 ERISA and Other Fringe Benefit Plans. The FDI Parties have
filed, published and disseminated all reports, documents, statements and
communications which are required to be filed, published or disseminated under
the ERISA, and the rules and regulations promulgated under the ERISA. The FDI
Parties' employee benefit plans are in compliance with the ERISA and the rules
and regulations thereunder. The FDI Parties do not now, and shall not as of the
date hereof, have any additional current or past service funding requirement
(whether individually or as part of a group) with respect to any such plan. All
wages, salaries, bonuses, fringe benefits, payroll taxes and other taxes (except
accrued vacation pay) due to employees of the FDI Parties have been paid, will
be paid in the ordinary course and shall be current as of the date hereof.
3.13 Litigation. There are no law suits, arbitrations, mediations,
federal, state or local administrative actions or proceedings, asserted claims
or other actions or proceedings (including, without limitation, any product
liability or product warranty claims) of whatever nature or forum pending or, to
the best of FDI Corporation's or FDI Information's knowledge, threatened against
FDI Corporation or FDI Information (whether involving a governmental authority,
agency or a private party) nor are there any disputes, disagreements, or any
other facts or circumstances known to FDI Corporation or FDI Information or any
of its officers or directors which are reasonably likely to give rise to the
same in the foreseeable future. Neither FDI Corporation or FDI Information is
subject to any order, writ, judgment, award, injunction or any decree of any
court or governmental or regulatory authority or arbitrator,
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which affects or which might affect any of the Assets or which might interfere
with the transactions contemplated in this Agreement. Nothing has come to the
attention of FDI Corporation or FDI Information that suggests to FDI Corporation
or FDI Information that any present or former employee of or person providing
services to FDI Corporation or FDI Information has or is likely to make any
claim against FDI Corporation or FDI Information by virtue of any patent or
latent employment related health defect or any severance or termination action.
Schedule 3.13 hereto sets forth the issues, parties, amounts in dispute, names
of counsel, status and other material information regarding each item listed
thereon.
3.14 Warranty Claims. Except as set forth on Schedule 3.14, neither
FDI Corporation or FDI Information has made any express oral or written
warranties with respect to the quality or absence of defects of any of the
products or services of the FDI Business. FDI Corporation and FDI Information
represent that their prior cost of performing any warranty obligations is as set
forth in the Financial Statements. Neither FDI Corporation or FDI Information
has any reason to believe that the cost of performing warranty obligations to
customers of the FDI Business for which warranty adjustments can be expected
during unexpired warranty periods which extend beyond the date hereof will be
higher than the cost of performing warranty obligations to customers of such
products and services which the FDI Parties have sold and performed for in the
past, provided that Neoforma provides support to the customers of the FDI
Business in a manner and at a level consistent with the practices followed by
the FDI Parties historically. Neither FDI Corporation or FDI Information has
been required to pay direct, incidental or consequential damages to any person
or entity in connection with any of the products or services respecting the FDI
Business in the past.
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3.15 Consents of Third Parties. No consent of any person is necessary
to the consummation of the transactions contemplated hereby, including without
limitation, consents from parties to loans, contracts, leases or other
agreements, or consents from governmental agencies, whether federal, state or
local.
3.16 Compliance with Law; Permits. FDI Corporation's operations, and
those of FDI Information, have been conducted in all material respects in
accordance with all applicable laws, regulations and other requirements of all
national governmental authorities, and of all states, municipalities and other
political subdivisions and agencies thereof, having jurisdiction over FDI
Corporation and FDI Information, including, without limitation, all such laws,
regulations and requirements relating to environment, employment, antitrust,
consumer protection, equal opportunity, health, occupational safety, pension and
securities. Neither FDI Corporation or FDI Information has received any
notification of any asserted present or past failure by FDI Corporation or FDI
Information to comply with such laws, rules or regulations. FDI Corporation
holds all permits, licenses, variances, exemptions, authorizations, orders and
approvals of all Governmental Agencies (the "PERMITS") that are required for it
to own, lease or operate its properties and assets and to carry on its business
as presently conducted except to the extent that the failure to hold any such
Permit is not reasonably likely to have a material adverse effect on the
foregoing. To the best of the FDI Parties' knowledge, there is presently no
default under any such Permit.
3.17 Financial Statements. Attached hereto as Schedule 3.17 are a
balance sheet dated September 30, 1999, and an income statement respecting the
seven month period then ended (the "FINANCIAL STATEMENTS") for FDI Information.
The Financial Statements are true
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and complete in all material respects and constitute an accurate representation
of the financial condition of FDI Information as at the date thereof and for the
period then ended, and fairly represent the results of operations for the period
as to which they pertain.
3.18 Insolvency. No petition in bankruptcy or similar arrangement has
been filed by or against FDI Corporation or FDI Information, nor has FDI
Corporation or FDI Information taken advantage of any federal or state
insolvency law. No receiver, trustee, custodian, liquidator, assignee,
sequestrator or other similar official has appointed over FDI Corporation or FDI
Information or all or a substantial part of FDI Corporation's or FDI
Information's property nor has FDI Corporation or FDI Information made any
assignment for the benefit of creditors or otherwise suffered any action which
adversely affects its title to the Assets.
3.19 Insider Interests; Related Party Transactions.
No officer, director, manager, interest holder or employee of
FDI Corporation or FDI Information and no "associate" (as such term is defined
in Rule 14a-1 under the Securities Exchange Act of 1934, as amended) of any such
officer, director, manager, interest holder or employee has, directly or
indirectly, any material interest in any property, real or personal, tangible or
intangible, including without limitation, inventions, patents, trademarks,
service marks or trade names, used in or pertaining to the FDI Business, or has
directly or indirectly any material interest in, or serves as an officer or
director of, any customer, competitor or supplier of FDI Corporation or FDI
Information, or any organization which has a material contract or arrangement
with FDI Corporation or FDI Information, except for Facilities Development Inc.
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3.20 Products Liability. There is no action, suit, inquiry,
proceeding or investigation by or before any court or governmental or other
regulatory or administrative agency or commission pending or to FDI
Corporation's knowledge threatened against or involving FDI Corporation or FDI
Information relating to any product originating from the FDI Business alleged to
have been manufactured or sold by FDI Corporation or FDI Information and alleged
to have been defective, or improperly designed or manufactured nor to FDI
Corporation's knowledge are there any facts or circumstances known to FDI
Corporation or any of its officers or directors which are reasonably likely to
give rise to the same in the foreseeable future.
3.21 Insurance. Schedule 3.21 attached hereto, sets forth a complete
list of all insurance policies and bonds presently maintained by FDI
Information, each of which is in full force and effect during the policy period
stated therein. Such insurance is adequate and customary for the type and scope
of the FDI Business.
3.22 Disclosure. No representation or warranty by FDI Corporation or
FDI Information in this Agreement, nor any statement or certificate furnished to
Neoforma pursuant hereto, contains or will contain any untrue statement of a
material fact or will omit to state a material fact necessary to make the
statements contained herein or therein not misleading.
3.23 No Prior Agreements. Except as disclosed in this Agreement,
neither FDI Corporation or FDI Information is a party to any written or oral
contract or agreement affecting its ownership or possession of or granting to
any other person, any option, right of first refusal or other right to acquire
any of the Assets.
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3.24 Consents. FDI Corporation has delivered to Neoforma concurrently
herewith (i) a certified copy of resolutions duly adopted by the board of
directors of FDI Corporation authorizing the transactions contemplated hereby,
(ii) certificates issued by the appropriate governmental authorities evidencing
the legal existence and good standing of FDI Corporation, (iii) a copy of the
Articles of Incorporation and By-laws, including all amendments, of FDI
Corporation (certified by the appropriate governmental authority in the case of
the Articles of Incorporation and otherwise certified by a principal of FDI
Corporation), and (iv) the results of a search of all appropriate Uniform
Commercial Code filing offices evidencing the existence of no liens, security
interests or encumbrances of any kind whatsoever affecting the assets being
conveyed to Neoforma hereunder.
3.25 Labor and Employee Matters.
(a) Neither FDI Corporation or FDI Information is a party to
any collective bargaining agreements or any other agreements with any labor
organization (a "LABOR AGREEMENT"). There is no labor strike, dispute, slowdown
or stoppage actually pending or threatened against or directly affecting FDI
Corporation or FDI Information. No union representation question or union
organizational activity exists respecting the employees of FDI Corporation or
FDI Information. Neither FDI Corporation or FDI Information has experienced any
material work stoppage or other material labor difficulty. Neither FDI
Corporation or FDI Information is delinquent in payments to any of its officers,
managers, employees or agents for any wages, salaries, commissions, bonuses or
other direct compensation for any services performed by them or amounts required
to be reimbursed to such officers, managers, employees or agent. Neither FDI
Corporation or FDI Information
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directly employs (or has in the past directly employed) its employees, but
instead contracts with Facilities Development, Inc. ("Facilities"), an affiliate
of FDI Information which is the employer of the employees. All employees so
contracted for by FDI Corporation are employed at will and there are no pending
or, threatened suits, claims, actions, charges, investigations or proceedings of
any nature respecting employment and employment practices, terms and conditions
of employment and wages and hours, including without limitation (i) under or
alleging violation of any applicable Employment Law or (ii) relating to alleged
unfair labor practices (or the equivalent thereof under any applicable law).
(b) Schedule 3.25 (b) sets forth a complete and accurate
list of all employees contracted for by FDI Corporation as of the Closing, with
each employee's annual salary or wage rates, as the case may be, date of hire,
positions held and titles.
SECTION 4. REPRESENTATION, WARRANTIES AND COVENANTS OF NEOFORMA.
Neoforma represents, warrants and covenants that as of the date hereof:
4.01 Corporate Organization; Etc. Neoforma is, and as of the date
hereof will be, a corporation duly organized and existing in good standing under
the laws of the State of Delaware. Neoforma has the corporate power to own its
properties and to carry on their business as now being conducted.
4.02 Authorization; Etc. Neoforma has full power and authority to
enter into this Agreement and to carry out the terms and provisions hereof, to
execute and deliver the instruments and undertakings provided herein, all of
which have been duly authorized by all proper and necessary corporate action;
and this Agreement has been, and the other documents provided for herein will
be, duly executed and delivered by Neoforma; and this Agreement is,
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and all the other documents represent, the legal, valid and binding obligation
of Neoforma, enforceable in accordance with its terms.
4.03 No Violation. The execution and delivery of this Agreement and
the other documents delivered in connection herewith and the consummation of the
transactions herein and therein contemplated will not violate or conflict with,
or result in a breach of, or constitute a default under, any indenture,
mortgage, deed of trust, agreement or other instrument to which Neoforma is a
party or by which it is bound and will not violate the provisions of the
Certificate of Incorporation or By-Laws of Neoforma or any laws of the United
States or the States of Delaware or California.
4.04 Acquired Shares. The issuance to FDI Corporation of the Acquired
Shares in accordance with the terms and conditions of this Agreement has been
duly authorized by all necessary corporate action on the part of Neoforma. When
issued in accordance with the terms hereof and the purchase consideration
contemplated by this Agreement has been paid, the Acquired Shares will be
validly issued and outstanding, fully-paid and non-assessable. Schedule 4.04
sets forth a true and correct description of the capitalization of Neoforma,
including all capital stock of all classes (whether issued, authorized or held
in the treasury), all securities convertible into or exercisable for capital
stock of any class, and all rights held by any parties to acquire capital stock
or securities convertible into or exercisable for capital stock of Neoforma.
4.05 Disclosure. No representation or warranty by Neoforma in this
Agreement, nor any statement or certificate furnished to the FDI Parties
pursuant hereto, contains or will
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contain any untrue statement of a material fact or will omit to state a material
fact necessary to make the statements contained herein or therein not
misleading.
SECTION 5. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION.
5.01 Survival of Representations and Warranties. All of the
representations and warranties of FDI Corporation and Neoforma contained in this
Agreement or in any instrument delivered pursuant to this Agreement (each as
modified by the corresponding Schedules thereto) shall survive until the first
anniversary of the Closing (the "EXPIRATION DATE").
5.02 Indemnification.
(a) Indemnification by FDI Corporation. FDI Corporation
agrees to indemnify and hold harmless Neoforma and its officers, directors, and
shareholders, against any and all loss, cost, liability, claim, damage,
deficiency, and expense whatsoever, including without limitation legal fees and
disbursements ("DAMAGE") arising out of or resulting from:
(i) any misrepresentation, omission, breach of a
representation or warranty, or non-fulfillment of any covenant on the part of
FDI Corporation under this Agreement or in any schedule, certificate or other
instrument furnished to Neoforma hereunder by or on behalf of FDI Corporation or
any other agreement entered into in connection with FDI Corporation's
consummating the transactions contemplated by this Agreement;
(ii) any brokers' or finders' fees of LEC or of any
other party which bases its claim for such fees out of any alleged action or
omission of FDI Corporation; and
(iii) all demands, assessments, judgments, costs and
legal and other fees and expenses arising from or in connection with any action,
suit, proceeding or claim
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incident to any of the foregoing.
(b) Neoforma's Procedure. Should any claim be made against
Neoforma for which indemnification is provided for in Section 5.02 (a) by a
person not a party to this Agreement, Neoforma shall promptly give FDI
Corporation written notice of any such claim, and FDI Corporation shall
thereafter defend or settle any such claim, at its sole expense, on its own
behalf and with counsel of its own choosing. In such defense or settlement,
Neoforma shall cooperate with and assist FDI Corporation to the maximum extent
reasonably possible and may participate therein with its own counsel. Any
payment resulting from such defense or settlement, together with the total
expense thereof, shall be binding on FDI Corporation. Failure to give notice
within a reasonable period of time shall not constitute a defense, in whole or
in part, to any claim for indemnification by Neoforma except and only to the
extent that such failure shall result in material prejudice to FDI Corporation.
Notwithstanding the foregoing, Neoforma may, after not less than sixty
(60) days written notice to FDI Corporation, make settlement of such claim,
provided that if FDI Corporation has fully performed its obligations to defend
the claim, such settlement shall be binding on FDI Corporation only if (i) FDI
Corporation consents to the settlement, or (ii) it is determined through the
Dispute Resolution and Arbitration procedure provided for herein that it would
be unreasonable for a person giving equal consideration to the interests of FDI
Corporation and Neoforma to refuse to consent to such settlement.
Failure to give notice within a reasonable period of time shall not
constitute a defense, in whole or in part, to any claim for indemnification by
Neoforma, except and only to the extent that such failure by Neoforma shall
result in a material prejudice to FDI Corporation.
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Anything herein to the contrary notwithstanding, in no event shall Neoforma be
required to consent to a non-monetary term or condition to such settlement as a
condition to indemnification hereunder.
(c) Indemnification by Neoforma. Neoforma shall indemnify
the FDI Parties and hold the FDI Parties harmless at all times after the Closing
against and in respect of any of the following:
(i) any and all liabilities and obligations of
Neoforma arising after the Closing except to the extent that the same may have
been caused by circumstances existing prior to the Closing;
(ii) any and all Damages resulting from any
misrepresentation, omission, breach of representation or warranty, or
non-fulfillment of any covenant on the part of Neoforma under this Agreement or
any schedule to this Agreement or in any certificate or other instrument
furnished to the FDI Parties hereunder or any other agreement entered into in
connection with Neoforma's consummating the transactions contemplated by this
Agreement;
(iii) any brokers' or finders' fees of any party which
bases its claim for such fees out of any alleged action or omission of Neoforma;
and
(iv) all demands, assessments, judgments, costs and
legal and other fees and expenses arising from or in connection with any action,
suit, proceeding or claim incident to any of the foregoing.
(d) The FDI Parties' Procedure. Should any claim be made against
the FDI Parties for which indemnification is provided for in Section 5.02 (c) by
a person not a party to this Agreement, the FDI Parties shall promptly give
Neoforma written notice of any such
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claim, and Neoforma shall thereafter defend or settle any such claim, at its
sole expense, on its own behalf and with counsel of its own choosing. In such
defense or settlement, the FDI Parties shall cooperate with and assist Neoforma,
and the FDI Parties may participate therein to the maximum extent reasonably
possible with their own counsel. Any payment resulting from such defense or
settlement, together with the total expense thereof, shall be binding on
Neoforma. Failure to give notice within a reasonable period of time shall not
constitute a defense, in whole or in part, to any claim for indemnification by
the FDI Parties except and only to the extent that such failure by the FDI
Parties shall result in material prejudice to Neoforma.
Notwithstanding the foregoing, the FDI Parties may, after not less than
sixty (60) days written notice to Neoforma, make settlement of such claim,
provided that if Neoforma has fully performed its obligations to defend the
claim, such settlement shall be binding on Neoforma only if (i) Neoforma
consents to the settlement, or (ii) it is determined through the Dispute
Resolution and Arbitration procedure provided for herein that it would be
unreasonable for a person giving equal consideration to the interests of the FDI
Parties and Neoforma to refuse to consent to such settlement.
Failure to give notice within a reasonable period of time shall not
constitute a defense, in whole or in part, to any claim for indemnification by
the FDI Parties, except and only to the extent that such failure by the FDI
Parties shall result in a material prejudice to Neoforma. Anything herein to the
contrary notwithstanding, in no event shall the FDI Parties be required to
consent to a non-monetary term or condition to such settlement as a condition to
indemnification hereunder.
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(e) Remedies Cumulative. Except as herein expressly
provided, the remedies provided herein shall be cumulative and shall not
preclude the assertion by one party of any other rights or the seeking of any
other remedies against the other party.
SECTION 6. CERTAIN OTHER COVENANTS AND AGREEMENTS.
6.01 Further Assurances. Upon the request of Neoforma or FDI
Corporation, the other party will execute and deliver to the requesting party,
or such party's nominee, all such instruments and documents of further assurance
or otherwise, and will do any and all such acts and things as may reasonably be
required to carry out the obligations of such party hereunder and to more
effectively consummate the transactions contemplated hereby, including obtaining
all consents and approvals from third parties, under leases, joint venture
agreements and other contracts.
6.02 License to FDI Corporation and Facilities Development, Inc.
Effective at the Closing, Neoforma hereby grants to FDI Corporation and
Facilities Development, Inc., a three-year, world-wide, non-exclusive,
royalty-free license to use the Software and the Intellectual Property in
support of or otherwise in connection with the consulting business currently
conducted by Facilities Development, Inc. and all extensions or expansions or
that business, provided, however, that such license shall not include the right
to sell or license the Software or the Intellectual Property except in
connection with a sale of substantially all of the assets of FDI Corporation or
Facilities Development, Inc. in a transaction pursuant to which the purchaser
has agreed to remain bound by the provisions of Section 6.13 of this Agreement.
FDI Corporation or Facilities Development, Inc. shall have the right to extend
the term of this license for up to two (2) three year extensions, which it may
do by providing Neoforma with
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its written notice to extend the license together with the amount of $10,000
during the 30 day period prior to the termination of the initial term of this
license or the first extension term (in the case of a second extension). The
purchaser in any such acquisition shall have the right to assume that portion of
the term of the license granted hereunder as remains at such time (including any
unexercised extension rights) but shall not have the further right to assign or
otherwise transfer such license except with the prior written notice to
Neoforma. Neither FDI Corporation or Facilities Development, Inc. shall have the
right to copy the Software except for backup purposes. In support of the
foregoing license, Neoforma shall provide to FDI Corporation and Facilities
Development, Inc., on a timely basis (and no less frequently than quarterly),
all supplements, upgrades, enhancements, modifications, improvements, and
releases made by Neoforma. with respect to the Software or the Intellectual
Property, which upgrades shall be subject to the same terms and conditions as
the Software and Intellectual Property.
6.03 Employment Agreement with ▇▇▇▇ ▇▇▇▇▇; Consulting or Employment
Agreements with Other Key Employees. At the Closing, ▇▇▇▇ ▇▇▇▇▇ and Neoforma
shall have entered into an employment agreement in such form as is mutually
agreeable to them. Such employment agreement shall include, among other things,
provision for the issuance to ▇▇▇▇ ▇▇▇▇▇ of options to acquire 92,500 shares of
common stock of ▇▇▇▇▇▇▇▇.▇▇▇, Inc. at fair market value on the date of this
Agreement. At the Closing, Neoforma shall have entered into either a consulting
or employment agreement with certain other key employees of FDI Corporation in
such form as is mutually agreeable to Neoforma and such key employees.
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6.04 Sublease. FDI Corporation currently leases its office space and
the furniture, fixtures and equipment used by it in its business. Effective at
the Closing, FDI Corporation hereby subleases to ▇▇▇▇▇▇▇▇.▇▇▇, Inc., a
sufficient portion of the office space FDI Corporation currently occupies,
together with the furniture, fixtures and equipment currently used by FDI
Corporation, so as to enable Neoforma to conduct from and after the Closing the
FDI Business in the manner it has been conducted by FDI. Neoforma shall make
monthly sublease payments to FDI Corporation to reimburse FDI Corporation; such
sublease payments shall be calculated to fairly reflect the portion of the
leased premises and furniture, fixtures, and equipment used by Neoforma each
month. Schedule 6.04 sets forth the initial allocation of such sublease
payments.
6.05 Staffing Plan. Schedule 6.05 sets forth a staffing plan for the
FDI Business for the twelve month period immediately following the Closing. This
plan shall provide that all employees shall devote 100% of their working time
and efforts to the business of Neoforma, unless otherwise agreed to by Neoforma,
in which case any party which desires to purchase some of the services of such
employees shall work out an arrangement pursuant to which they shall pay
Neoforma for such services. The parties will adhere to this staffing plan,
provided that if any party believes that modifications are necessary for the
effective continuation of the FDI Business or the business of Facilities, the
parties will in good faith discuss those modifications and attempt to reach an
accommodation with respect thereto.
6.06 Confidentiality. Following the date hereof, FDI Corporation, and
its directors and officers shall keep confidential all information relating to
the FDI Business and not use such information for any purpose except as
contemplated by this Agreement. FDI Corporation
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will not disclose to any person other than Neoforma or Facilities Development,
Inc. any trade secrets, know how, technology, processes, formulas, computer
programs, customer lists, customer names or identities or other confidential or
proprietary business information used in or associated with the FDI Business or
related to the Assets. FDI Corporation further agrees to take all steps
necessary to prevent its directors, officers, employees and agents from
disclosing such trade secrets and other information.
6.07 Public Announcements. Neoforma shall permit FDI Corporation to
work with it to develop the initial press release describing the transactions
described in this Agreement, and no such press release will be made without the
approval of FDI Corporation, which will not be withheld unreasonably. Neoforma
shall have the right thereafter to make any public statement, announcement or
press release with respect to this Agreement or the transactions contemplated
hereby, and to otherwise publicize this Agreement or the transactions
contemplated hereby, to the extent it deems necessary without the consent of FDI
Corporation or any other party, provided, however, that any statement,
announcement or release made on or before June 1, 2000, which states or can
reasonably be construed to indicate that Neoforma is engaged in providing
consulting services in competition with Facilities Development, Inc. shall not
be made unless it is approved by Facilities Development, Inc., which approval
shall not be withheld unreasonably.
6.08 Access to Records. Following the date hereof, FDI Corporation
will provide Neoforma and its representatives with reasonable access to such
tax, financial or other records, books of account, litigation files or other
information as to which Neoforma has
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demonstrated a reasonable need to review upon Neoforma's requesting such
information or records.
6.09 Customer Support. Neoforma acknowledges that effective at the
Closing, it will assume all liabilities of the FDI Parties to support the
Software in the hands of the FDIParties's customers, which liabilities are set
forth in the Contracts or otherwise set forth on Schedule 6.09. Neoforma agrees
to provide such support in the manner and at the levels that the FDI Parties
have provided such support historically.
6.10 Transfer of Software and Intellectual Property. If as of the
first anniversary of the Closing Neoforma has not completed a public offering of
its common stock registered under the Securities Act of 1933, as amended, then
thereafter for a period of ninety (90) days, FDI Corporation shall have the
right to compel Neoforma to transfer to FDI Corporation for no payment free and
clear ownership of and all rights to the Software and the Intellectual Property
(including all supplements, upgrades, enhancements, modifications, improvements,
and releases made by Neoforma) within 30 days of FDI Corporation's providing
Neoforma of its intent to exercise such right, provided that Neoforma shall
retain a non-exclusive, worldwide, royalty-free, three (3) year license to use
the Software and Intellectual Property for Worldwide Web-based applications
only, which license shall include the right to license the Software solely for
such purposes to others. Neoforma shall have the right to extend the term of any
license granted to it pursuant to this Section for up to two (2) three year
extensions, which it may do by providing FDI Corporation with its written notice
to extend the license together with the amount of $10,000 during the 30 day
period prior to the termination of the initial term of this license or the first
extension term (in the case of a second extension).
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Neoforma agrees that until such time as ▇▇▇▇▇▇▇▇.▇▇▇, Inc. has completed a
public offering of its common stock registered under the Securities Act of 1933,
as amended, or the foregoing right to compel transfer shall expire, it will not
grant to any third party any right with respect to the Software or the
Intellectual Property which would render it unable to deliver to FDI Corporation
the free and clear ownership and all other rights to the Software and the
Intellectual Property that are contemplated hereby.
6.11 Referrals. Neoforma agrees that for so long as Facilities
Development, Inc. shall remain active in the consulting business that it
currently conducts, Neoforma will include Facilities Development, Inc. in any
response it gives to a request for a referral to a consultant that performs
services of the type Facilities Development, Inc. performs, and it will give
Facilities Development, Inc. a positive recommendation.
6.12 Retention of Shares. For a period of twelve months from and
after the Closing, FDI Corporation shall retain all right, title and ownership
in and to, and shall not distribute, at least 100,000 of the Acquired Shares.
These shares shall be subject to cancellation by Neoforma to satisfy the payment
of any amount which may become owing from FDI Corporation to Neoforma during
this period pursuant to Section 5 of this Agreement, with the amount of shares
subject to such cancellation being determined using the average closing price of
such shares for a ten day trading period prior to such event.
6.13 Non-Competition. For a period of eighteen (18) months after the
execution of this Agreement, (i) neither FDI Corporation or FDI Information
shall hire or attempt to hire any employee of the Neoforma, or assist in such
hiring by anyone else, or encourage any employee to terminate his or her
employment with Neoforma, provided, however, that nothing
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shall prevent FDI Corporation or FDI Information from hiring any former employee
of Neoforma who has terminated their employment with Neoforma voluntarily and
without solicitation; (ii) neither FDI Corporation or FDI Information shall
participate, directly or indirectly, in any capacity, in any business or
activity that is presently in competition with Neoforma or, in the business of
developing, maintaining, marketing, and selling comprehensive, world-wide
web-based equipment planning tools primarily for use in the construction and/or
redesign of healthcare facility projects or in any other business in which
Neoforma is presently engaged, in any state in which Neoforma does business; and
(iii) neither FDI Corporation or FDI Information shall cause or assist to cause
any of the customers of Neoforma with whom any of them have communicated, dealt
with or became acquainted prior to the Closing Date in connection with their
operation of the FDI Business to enter into contractual arrangements with
herself or themselves or any other person, firm, partnership, corporation or
other company in any business or activity that is presently in competition with
Neoforma. Nothing in this Section 6.13 shall prohibit FDI Corporation, FDI
Information or any other party from participating in the consulting business of
Facilities Development, Inc.
6.14 Loan from Neoforma. In the event that FDI Corporation, or its
shareholder or shareholders, has any tax liability for the tax year ending
December 31, 1999 arising from the sale of FDI Corporation's assets to Neoforma
in consideration for the Acquired Shares being issued to it, Neoforma agrees to
lend to the party or parties incurring such tax liability (the "Borrowers"),
upon their request and satisfying the conditions of this Section an amount equal
to the lesser of (i) the amount of such actual tax liability, or (ii) $400,000
in the aggregate, upon the terms and conditions of this Section. This loan may
be requested in the manner
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provided for in this Section by one or more of the FDI Corporation shareholders
in an amount not to exceed their pro rata portion (based upon their
shareholdings) of the maximum loan amount. The amount of any tax liability as to
which the loan being provided pursuant to this Section may be made shall be
demonstrated to Neoforma's reasonable satisfaction by the Borrowers providing to
Neoforma either a copy of all relevant tax returns which reflect such liability
or a written statement from the Borrowers' tax advisors, which advisors shall be
reasonably satisfactory to Neoforma, stating the amount of such liability and
the basis for its calculation. Any request for a loan pursuant to this Section
6.14 (the "Loan") shall be made, if at all, on or before October 1, 2000, and
such request shall constitute the covenant and certification of the party making
the request that the proceeds of the Loan are being used solely to pay the
subject tax liability.
As security for any loan made by Neoforma pursuant to this Section 6.14,
and as a precondition to its being obligated to make the Loan, the Borrowers
shall be required to pledge to, and deliver stock certificates respecting one
share of the Common Stock owned by FDI Corporation for each $5.00 in principal
amount of the Loan (the "Pledged Shares"). The Borrowers shall be required to
execute all such documents as are reasonably required to effectuate such pledge
and the Loan in the opinion of Neoforma's legal counsel. There shall be
separate, non-cross-defaulted and non-cross-collateralized Notes made by each
Borrower, each of which shall be non-recourse, except against such pledged
shares, bear interest at a rate of eight percent (8%) per annum and shall
repayable on the earlier of (i) one year from the date it is made, if on such
date the beneficial owner of the Pledged Shares is permitted under applicable
law to resell a sufficient number of shares to generate proceeds in the amount
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required to repay the balance owing under the Note at such time; (ii) eighteen
months from the date the Loan is made; or (iii) the date fifteen days after an
amount of the shares of Common Stock issued pursuant to this Agreement having a
value equal to or in excess of the amount of the Loan have been registered under
federal securities laws, and either registered or subject to resale pursuant to
an exemption under applicable state blue sky laws. Neoforma shall have no
obligation to make any loan to any particular borrower pursuant to this Section
6.14 in the event an amount of the shares of Common Stock issued pursuant to
this Agreement having a value equal to or in excess of the tax liabilities which
are owing have been registered under federal securities laws, and either
registered or subject to resale pursuant to an exemption under applicable state
blue sky laws, prior to the date such Loan is requested by any particular
borrower.
SECTION 7. MISCELLANEOUS.
7.01 Survival. All the provisions of this Agreement and all of the
representations, warranties, covenants and agreements of the parties herein, or
in any statement, certificate or other document furnished pursuant to this
Agreement, shall survive and continue in force after the date hereof.
7.02 Dispute Resolution and Arbitration. All disputes or
controversies arising hereunder or contemplated hereby shall be resolved
exclusively in accordance with the provisions of this paragraph. Prior to
commencing arbitration as described below, Neoforma or the FDI Parties may
commence a mediation by providing to the other a list of three suggested
mediators. The party receiving such list shall within ten (10) days either
accept one of the mediators or provide a list of three alternatives. This
process shall continue until the
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parties select a mediator; if a party shall fail to respond within the ten (10)
day period to any proposed slate, the party who submitted the slate will have
the right to select the mediator. Once the mediator is selected, the parties
shall in good faith participate in such mediation by having a representative
with full settlement authority attend at least one mediation session. If the
mediation does not produce a resolution of the dispute within thirty (30) days
of the date a mediator is agreed upon, either party may commence arbitration in
the City of San Francisco, California, under the auspices and in accordance with
the Commercial Arbitration Rules of the American Arbitration Association then
pertaining, by a single arbitrator to be selected by said association. Each of
the parties shall be responsible for one-half of the arbitration fees, unless
the arbitrator shall otherwise decide. Each party shall bear its own counsel and
other fees and expenses unless the arbitrator shall otherwise decide.
7.03 Governing Law. This Agreement shall be construed and interpreted
in accordance with the laws of the State of California and shall be binding on
and inure to the benefit of the parties hereto and their respective successors
and assigns.
7.04 Modification. This Agreement may be modified, amended or
terminated, and the requirements of any provision hereof may be waived, with the
consent of FDI Corporation and Neoforma by written instrument signed by them or
their respective successors or assigns in any manner deemed necessary or
appropriate by them.
7.05 Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
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7.06 Notices. Any notice shall be conclusively deemed to have been
received by a party hereto and be effective on the day on which delivered to
such party at the address set forth below (or such other address as such party
shall specify to the other party in writing) or, if sent postage prepaid by
certified or registered mail, on the third business day after the day on which
mailed, addressed to such party at such address:
As to FDI Corporation: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ or ▇▇▇▇ ▇. ▇▇▇▇▇
FDI Information Resources, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
FAX: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
FAX: ▇▇▇-▇▇▇-▇▇▇▇
As to Neoforma: ▇▇▇▇▇▇▇▇.▇▇▇, Inc.
▇▇▇▇-▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: President or Chief Financial Officer
With a copy to: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, Esq.
Pepe & Hazard, LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
With a copy to: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Fenwick & West, LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Any failure by a party to send a courtesy copy of a notice to the
counsel named above shall not invalidate such notice.
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7.07 Entire Agreement. This Agreement and the instruments referred to
herein constitute the entire contract between the parties and supersede all
other understandings with respect to the subject matter hereof.
7.08 Headings. The descriptive headings of the several Sections and
Paragraphs of this Agreement are inserted for convenience only and do not
constitute a part of this Agreement.
7.09 No Brokers. Except for LEC (which was retained solely by FDI
Corporation) all negotiations relative to this Agreement have been carried on by
FDI Corporation and Neoforma or their respective counsel directly with each
other without the intervention of any person in such manner as to give rise to
any valid claim against FDI Corporation or Neoforma for brokerage fees, finder's
fees or other like payments. Each of FDI Corporation and Neoforma hereby agrees
to save the other of them harmless and defend the other of them against all
claims for brokerage commissions, finder's fees or other like payments based
upon actions of the parties other than the party seeking to be held harmless
under this Agreement.
7.10 Equitable Remedies. In the event that any party to this
Agreement shall default in the performance of any obligation, covenant or
agreement hereunder, the other party to this Agreement shall, in addition to all
other remedies which may be available to it, be entitled to injunctive and
equitable relief, including without limitation specific performance, and shall
be entitled to recover from the defaulting party its costs and expenses
(including reasonable attorneys' fees) incurred by it in securing such
injunctive or equitable relief.
7.11 Further Actions. FDI Corporation and Neoforma shall, on request,
on or after the date hereof execute and deliver such other documents as may
reasonably be necessary to
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transfer or further perfect title in the assets and properties or to otherwise
implement the transactions contemplated by this Agreement.
7.12 Acceptance of Counsel. Whenever in this Agreement is provided
that a party hereto shall deliver an agreement or other instrument to the other
of them, such agreement or instrument shall be in form reasonably satisfactory
to counsel for the party to whom the same is to be delivered.
7.13 Expenses. Each party hereto shall pay its own expenses,
including the fee and disbursements of its own counsel, incident to the
preparation of this Agreement and the consummation of the transactions
contemplated hereby.
7.14 Assignment. Neoforma shall be entitled to assign all of its
right, title and interest under this Agreement to a subsidiary corporation or
any corporation affiliated with Neoforma, provided that such subsidiary or
affiliated corporation shall assume all obligations of the Neoforma under this
Agreement and provided further that such assignment and assumption of
liabilities shall not release Neoforma from primary and direct liability to FDI
Corporation for any of its obligations and agreements hereunder.
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IN WITNESS WHEREOF, the parties hereto have executed or caused to be
executed this Agreement as of the day and year first above written.
FDI INFORMATION RESOURCES, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Its: President
FDI INFORMATION RESOURCES, LLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Its: Manager Member
▇▇▇▇▇▇▇▇.▇▇▇, INC.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Its: Chief Financial Officer
As to Sections 6.02, 6.05, 6.07 and 6.11 only.
FACILITIES DEVELOPMENT, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Its: President
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