DISTRIBUTION AGREEMENT
by and between
MARCAM CORPORATION,
a Massachusetts Corporation
and
MARCAM SOLUTIONS, INC.,
a Delaware Corporation
As of July 17, 1997
TABLE OF CONTENTS
Page
ARTICLE I - DEFINITIONS............................................................................... 2
Section 1.01 General......................................................................... 2
Section 1.02 Exhibits, etc................................................................... 14
Section 1.03 References to Time.............................................................. 14
ARTICLE II - THE DISTRIBUTION......................................................................... 15
Section 2.01 The Distribution................................................................ 15
Section 2.02 Cooperation With Respect to the Distribution.................................... 15
Section 2.03 Conditions to the Distribution.................................................. 17
ARTICLE III - TRANSACTIONS RELATING TO THE DISTRIBUTION............................................... 18
Section 3.01 Corporate Restructurings........................................................ 18
Section 3.02 Repayment of Intercompany Indebtedness.......................................... 20
Section 3.03 The Marcam Solutions Board; Resignations; Employees............................. 20
Section 3.04 Stock Options; Warrants; Restricted Stock....................................... 21
Section 3.05 Insurance....................................................................... 25
Section 3.06 Use of Names.................................................................... 27
Section 3.07 Transfers Not Effected Prior to the Distribution; Transfers
Deemed Effective as of the Cut-off Date......................................... 28
Section 3.08 Enforcement of Marcam Solutions Employee Agreements............................. 28
Section 3.09 Trade Secrets................................................................... 29
ARTICLE IV - EMPLOYEE MATTERS AND BENEFITS............................................................ 29
Section 4.01 Employment...................................................................... 29
Section 4.02 Qualified Retirement and Benefit Plans.......................................... 30
Section 4.03 Welfare Plans................................................................... 31
Section 4.04 Assumption of COBRA Obligations................................................. 33
Section 4.05 Other Liabilities and Obligations............................................... 33
Section 4.06 Preservation of Rights to Amend or Terminate Plans.............................. 33
Section 4.07 Reimbursement; Indemnification.................................................. 34
Section 4.08 Limitation on Enforcement....................................................... 34
Section 4.09 Employment Following the Distribution Date...................................... 34
Section 4.10 July 31, 1997 Payroll........................................................... 34
ARTICLE V - INDEMNIFICATION........................................................................... 35
Section 5.01 Indemnification by MAPICS....................................................... 35
Section 5.02 Indemnification by Marcam Solutions............................................. 36
Section 5.03 Limitations on Indemnification Obligations...................................... 37
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Section 5.04 Procedures for Indemnification.................................................. 38
Section 5.05 Remedies Cumulative............................................................. 41
Section 5.06 Survival of Indemnities......................................................... 41
ARTICLE VI - ACCESS TO INFORMATION.................................................................... 41
Section 6.01 Provision of Corporate Records.................................................. 41
Section 6.02 Access to Information........................................................... 42
Section 6.03 Retention of Records............................................................ 42
Section 6.04 Reimbursement................................................................... 43
Section 6.02 Production of Witnesses......................................................... 43
Section 6.06 Confidentiality................................................................. 43
ARTICLE VII - MISCELLANEOUS........................................................................... 43
Section 7.01 Complete Agreement; Construction................................................ 43
Section 7.02 Survival of Agreements.......................................................... 43
Section 7.03 Expenses........................................................................ 44
Section 7.04 Governing Law................................................................... 44
Section 7.06 Dispute Resolution............................................................. 44
Section 7.07 Binding Arbitration............................................................. 45
Section 7.08 Amendments...................................................................... 46
Section 7.09 Successors and Assigns.......................................................... 46
Section 7.10 Termination..................................................................... 47
Section 7.11 No Third Party Beneficiaries.................................................... 47
Section 7.12 Titles and Headings............................................................. 47
Section 7.13 Legal Enforceability............................................................ 47
Section 7.14 No Waivers...................................................................... 47
Section 7.15 Counterparts.................................................................... 47
Section 7.16 Performance..................................................................... 48
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Schedules, Annexes and Exhibits
Exhibit A Form of General Services Agreement
Exhibit B Form of Promissory Note
Exhibit C Form of Tax Sharing Agreement
Schedule 1.01 MAPICS Retained Contracts
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DISTRIBUTION AGREEMENT
This Distribution Agreement dated as of July 17, 1997 (the "Agreement")
by and between Marcam Corporation, a Massachusetts corporation (the "Company"),
and Marcam Solutions, Inc., a Delaware corporation ("Marcam Solutions"):
WITNESSETH:
WHEREAS, the Company Board (as defined below) has determined that it is
appropriate, desirable and in the best interests of the Company's stockholders
to separate the Company into two independent companies, one consisting of the
Marcam Solutions Business (as defined below) and the other consisting of the
MAPICS Business (as defined below);
WHEREAS, in connection with such separation, the Company wishes to
transfer to Marcam Solutions the assets relating to the Marcam Solutions
Business specified in this Agreement and an aggregate of $39 million in cash
(all or a portion of which may initially be represented by a promissory note) in
exchange for (i) the assumption by Marcam Solutions of the liabilities and
obligations relating to the Marcam Solutions Business specified in this
Agreement and (ii) the issuance to the Company by Marcam Solutions of shares of
the Marcam Solutions Common Stock (as defined below) (together with the
associated Marcam Solutions Rights (as defined below)) and the Marcam Solutions
Warrant (as defined below);
WHEREAS, Marcam Solutions is willing to assume such liabilities and
obligations and issue such shares of Marcam Solutions Common Stock (together
with the associated Marcam Solutions Rights) and the Marcam Solutions Warrant in
exchange for such assets and cash;
WHEREAS, the Company intends to distribute all of the outstanding
shares of Marcam Solutions Common Stock (together with the associated Marcam
Solutions Rights) to the holders of the Company's outstanding capital stock in
the manner specified in this Agreement;
WHEREAS, the Company and Marcam Solutions have determined that it is
necessary and desirable to set forth the principal corporate transactions
required to effect such a distribution and certain other agreements relating to
other matters in connection therewith;
NOW, THEREFORE, in consideration of these premises and the mutual
agreements, provisions and covenants contained in this Agreement, the Company
and Marcam Solutions hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 General. As used in this Agreement, the following
capitalized terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
401(k) Transfer: as defined in Section 4.02(b).
401(k) Transfer Date: as defined in Section 4.02(b).
AAA: as defined in Section 7.07(a).
Action: any action, suit, arbitration, inquiry, proceeding or
investigation by or before any court, any governmental or other regulatory or
administrative agency or commission or any arbitration tribunal.
Adjusted Company Option Exercise Price: as defined in Section 3.04(a).
Adjusted General Atlantic Warrant Exercise Price: as defined in Section
3.04(h)(i).
Affiliate: with respect to any Person, a Person that, directly or
indirectly through one or more intermediaries, controls, is controlled by or is
under common control with, such Person; provided, however, that for purposes of
this Agreement, neither MAPICS nor any of its Subsidiaries shall be deemed to be
an Affiliate of Marcam Solutions or any of its Subsidiaries, and neither Marcam
Solutions nor any of its Subsidiaries shall be deemed to be an Affiliate of
MAPICS or any of its Subsidiaries.
Agent: the distribution agent for the stockholders of the Company, as
selected by the Company, to distribute the Marcam Solutions Common Stock in
connection with the Distribution.
Ancillary Agreements: collectively, all of the agreements, instruments,
understandings, assignments or other arrangements entered into in connection
with the transactions contemplated hereby, including, without limitation, the
Conveyance and Assumption Instruments, the General Services Agreement, the
Back-Up License Agreement, the International Facilities Sharing Agreement and
the Tax Sharing Agreement.
Back-Up License Agreement: the Back-Up License Agreement to be entered
into by the Company and Marcam Solutions pursuant to which Marcam Solutions
shall license certain of its software to the Company.
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Chairman: as defined in Section 7.07(b).
Claims Administration: (i) the processing of claims made under the
Policies, including the reporting of claims to the insurance carrier, management
and defense of claims, and providing for appropriate releases upon settlement of
claims, (ii) the collection of the proceeds of Policies, and (iii) the reporting
to excess insurance carriers of any losses or claims which may cause the
per-occurrence deductible or self-insured retention or limits of any Policy to
be exceeded.
COBRA: as defined in Section 4.04.
Code: the Internal Revenue Code of 1986, as amended.
Commission: the Securities and Exchange Commission.
Company Board: the Board of Directors of the Company.
Company Common Distribution Ratio: .50.
Company Common Stock: the Common Stock, par value $.01 per share, of
the Company.
Company Options: as defined in Section 3.04(a).
Company Option Exercise Price: as defined in Section 3.04(a).
Company Preferred Stock: collectively, the Series D Convertible
Preferred Stock, par value $1.00 per share, of the Company and the Series E
Convertible Preferred Stock, par value $1.00 per share, of the Company.
Company Stock Option Plans: collectively, the Marcam Corporation 1987
Stock Plan, the Marcam Corporation 1991 Non-Employee Director Stock Option Plan
and the Marcam Corporation 1994 Stock Plan.
Company Subsidiary: any subsidiary of the Company prior to the
Distribution.
Conveyance and Assumption Instruments: collectively, the various
agreements, instruments and other documents to be entered into to effect the
transfer of assets and the assumption of Liabilities contemplated by Section
3.01.
Cut-off Date: July 25, 1997.
Dispute Resolution Committee: as defined in Section 7.06.
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Distribution: the distribution to holders of the Company Common Stock
and the Company Preferred Stock of the shares of Marcam Solutions Common Stock
and the Marcam Solution Rights on the basis provided in Section 2.01 on the
Distribution Date.
Distribution Date: the date determined by the Company Board on which
the Distribution shall be effected.
Exchange Act: the Securities Exchange Act of 1934, as amended.
Exercise Price Adjustment Ratio: as defined in Section 3.04(a).
Foreign Exchange Rate: with respect to any currency other than United
States dollars as of any date of determination, as quoted in The Wall Street
Journal Currency Trading table.
Form 10: the registration statement on Form 10 (as amended) filed by
Marcam Solutions with the Commission to effect the registration of the Marcam
Solutions Common Stock and the Marcam Solutions Rights pursuant to the Exchange
Act.
Form S-4: the registration statement on Form S-4 (as amended) filed by
Marcam Solutions with the Commission to effect the registration of the Marcam
Solutions Common Stock and the Marcam Solutions Rights to be distributed in the
Distribution pursuant to the Securities Act.
Form S-8: one or more registration statements on Form S-8 to be filed
by Marcam Solutions with the Commission to effect the registration of the Marcam
Solutions Common Stock and the Marcam Solutions Rights to be issued in
connection with Marcam Solutions Stock Plans pursuant to the Securities Act,
which registration statements may be combined with the Form S-4.
Former Marcam Solutions Employee: any former employee of the Company
who terminated employment prior to the Distribution Date but who (i) was
exclusively employed in connection with the Marcam Solutions Business or (ii) is
determined to be a Former Marcam Solutions Employee as agreed upon by the
parties.
Fractional Shares: as defined in Section 2.01(b).
General Atlantic Warrants: as defined in Section 3.04(h)(i)
General Atlantic Warrant Exercise Price: as defined in Section
3.04(h)(i).
General Services Agreement: the General Services Agreement in
substantially the form attached hereto as Exhibit A.
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Indemnifying Party: as defined in Section 5.03(a).
Indemnitee: as defined in Section 5.03(a).
Indemnity Payment: as defined in Section 5.03(a).
Information: as defined in Section 6.02.
Insurance Amount: as defined in Section 3.05(f).
International Facilities Sharing Agreement: the International
Facilities Sharing Agreement to be entered into by MAPICS and Marcam Solutions
providing for the sharing by MAPICS and Marcam Solutions of certain facilities
worldwide.
IRS: the Internal Revenue Service.
Liabilities: with respect to any Person, any and all debts, liabilities
and obligations, absolute or contingent, matured or unmatured, liquidated or
unliquidated, accrued or unaccrued, known or unknown, whenever arising (unless
otherwise specified in this Agreement), including all costs and expenses
relating thereto, and including those debts, liabilities and obligations arising
under any law, rule, regulation, Action, threatened Action, order or consent
decree of any governmental entity or award of any arbitrator of any kind, and
those arising under any contract, commitment or undertaking.
Losses: any and all losses, Liabilities, claims, damages, obligations,
payments, costs and expenses, matured or unmatured, absolute or contingent,
accrued or unaccrued, liquidated or unliquidated, known or unknown, whenever
arising (including the costs and expenses of any and all Actions, threatened
Actions, demands, assessments, judgments, settlements and compromises relating
thereto, and attorneys' fees and any and all expenses whatsoever reasonably
incurred in investigating, preparing or defending against any such Actions or
threatened Actions).
MAPICS: the Company conducting the MAPICS Business after the
Distribution Date.
MAPICS Assets: all of the assets, properties and business of every
kind, nature and description, wherever located, real, personal or mixed,
tangible or intangible, owned, held or used exclusively in the conduct of the
MAPICS Business by the Company and the Company Subsidiaries, together with the
other assets specified in this paragraph, including and together with all right,
title and interest of the Company and the Company Subsidiaries in, to and under
the following:
(a) all Proprietary Rights owned, held or used exclusively in
the conduct of the MAPICS Business by the Company and the Company Subsidiaries,
including all Proprietary
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Rights relating exclusively to the MAPICS product line (and all prior versions
thereof and works derived therefrom) and all rights to the names used
exclusively in the conduct or operations of the MAPICS Business, including
"MAPICS" and any variations thereof;
(b) all real property and leases of, and other interests in,
real property relating to the MAPICS Offices, in each case together with all
buildings, fixtures and improvements erected thereon and easements and other
rights appurtenant thereto;
(c) all personal property and interests therein, including
equipment, furniture, office equipment, communications equipment, computer
software and equipment, spare and replacement parts, and other tangible and
intangible property owned, held or used exclusively in the conduct of the MAPICS
Business, wherever located (including such property and interests owned by the
Company or the Company Subsidiaries in the possession of manufacturers,
suppliers, customers, distributors, sales representatives or others or in
transit);
(d) all inventories of products, documentation, marketing
materials, supplies, disposable goods, packaging supplies, and other materials
owned, held or used exclusively in the conduct of the MAPICS Business, wherever
located (including such inventories owned by the Company or the Company
Subsidiaries in the possession of manufacturers, suppliers, customers,
distributors, sales representatives or others or in transit);
(e) all rights under the MAPICS Retained Contracts;
(f) all prepaid expenses and deposits that relate exclusively
to the MAPICS Business or the MAPICS Assets, including ad valorem taxes, leases
and rentals;
(g) all accounts receivable generated exclusively in the
conduct of the MAPICS Business and other notes and receivables relating
exclusively to the MAPICS Business;
(h) all of the cash and cash equivalents of the Company and
the Company Subsidiaries on hand and in banks, certificates of deposit and
marketable securities as of the close of business on the Distribution Date,
except (i) ▇▇▇▇▇ cash in the possession of the Marcam Solutions Business, (ii)
any such cash and cash equivalents which secure letters of credit issued in
connection with the conduct of the Marcam Solutions Business and (iii) any cash
to be contributed to the capital of, or transferred to, Marcam Solutions
pursuant to the terms of this Agreement;
(i) all rights, claims, credits, causes of action or rights of
set-off of the Company and the Company Subsidiaries against third parties
relating exclusively to the MAPICS Business or the other MAPICS Assets,
including unliquidated rights under manufacturers' and vendors' warranties;
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(j) all books, records, files and papers, whether in tangible
or intangible form, used exclusively in, or relating exclusively to, the MAPICS
Business or the MAPICS Assets, including all sales, marketing and promotional
literature, manuals, data, correspondence, lists of present and former
customers, suppliers, sales representatives, resellers, affiliates and business
partners, and personnel and employment records;
(k) the corporate seals, charter documents, by-laws, minute
books and stock record books of the Company and the Company Subsidiaries (other
than Marcam Solutions and its Subsidiaries), and such other records of the
Company and the Company Subsidiaries (other than Marcam Solutions and its
Subsidiaries) that relate exclusively to the organization or capitalization of
the Company and the Company Subsidiaries (other than Marcam Solutions and its
Subsidiaries); and
(l) all goodwill associated with the MAPICS Business or the
MAPICS Assets, together with the right to represent to third parties that MAPICS
is the successor to the MAPICS Business.
MAPICS Business: the portion of the business conducted by the Company
and the Company Subsidiaries relating to the MAPICS product line.
MAPICS Indemnitees: as defined in Section 5.02.
MAPICS Liabilities: all Liabilities of the Company and the Company
Subsidiaries relating exclusively to, or arising exclusively in, the conduct of
the MAPICS Business by the Company and the Company Subsidiaries, together with
the other Liabilities of the Company and the Company Subsidiaries specified in
this paragraph, including the following:
(a) all Liabilities arising under the MAPICS Retained
Contracts;
(b) all Liabilities of the Company and the Company
Subsidiaries for money borrowed, whether such Liabilities were incurred in the
conduct of the MAPICS Business or otherwise, including all Liabilities for money
borrowed under the Subordinated Notes Due 2001 issued by the Company and the
Loan and Security Agreement dated as of August 29, 1995 by and between Greyrock
Business Credit, a division of Greyrock Capital Group, Inc., and the Company, as
amended, but excluding (i) Liabilities under letters of credit issued in
connection with the conduct of the Marcam Solutions Business pursuant to an
agreement or agreements between the Company and The Chase Manhattan Bank and
(ii) Liabilities for prepayment penalties (if any) and unpaid interest under the
Subordinated Notes Due 2001 issued by the Company which will have accrued and
become due and payable before the Distribution Date;
(c) the Liabilities relating to employee benefits or
compensation arrangements for employees of the Company and the Company
Subsidiaries, including Liabilities under the
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employee benefit agreements, plans or other arrangements of the Company or any
Company Subsidiary, set forth in Article IV;
(d) all Liabilities for breach of contract, personal injury or
property damage (whether based on negligence, breach of warranty, strict
liability or any other theory) caused by or arising out of or resulting from,
directly or indirectly, any alleged or actual acts or omissions relating
exclusively to, or arising exclusively from, the conduct or operations of the
MAPICS Business by the Company and the Company Subsidiaries;
(e) all Liabilities for all accounts payable arising out of
the conduct of the MAPICS Business;
(f) all Liabilities relating to the MAPICS Assets;
(g) all Liabilities of the Company or the Company Subsidiaries
to any present or former director, officer, or stockholder of the Company or the
Company Subsidiaries in his capacity as such;
(h) except as otherwise provided in the Tax Sharing Agreement,
all Liabilities for Taxes of the Company or the Company Subsidiaries which are
attributable to either (i) events occurring during any period ending on or
before the Distribution Date, including ownership of the Marcam Solutions Assets
and operation of the Marcam Solutions Business, or (ii) the consummation of the
transactions contemplated by this Agreement; and
(i) any and all other Liabilities of every kind of the Company
and the Company Subsidiaries incurred by the Company or the Company Subsidiaries
relating exclusively to, or arising exclusively from, its ownership of the
MAPICS Assets or its conduct or operations of the MAPICS Business.
MAPICS Offices: the offices of the Company and the Company Subsidiaries
located at ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇.
MAPICS Retained Contracts: all contracts, agreements, leases, licenses,
commitments, sales and purchase orders and other instruments (i) entered into
exclusively in the conduct of the MAPICS Business, including the leases of the
MAPICS Offices, (ii) representing or relating to options or other stock rights
relating to the capital stock of the Company granted under the Company's stock
option or purchase plans, (iii) relating to the capital stock and other
securities issued by the Company, including the Rights Agreement dated as of
December 3, 1996 by and between the Company and The First National Bank of
Boston and the rights issued thereunder, and various securities purchase
agreements and registration rights agreements, (iv) relating to benefits
provided to directors, officers and employees of the Company and the Company
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Subsidiaries, and (v) the contracts, agreements, leases, licenses, commitments
and other instruments listed on Schedule 1.01.
MAPICS Subsidiary: any Subsidiary of MAPICS other than Marcam Solutions
or any Marcam Solutions Subsidiary.
Marcam 401(k) Plan: as defined in Section 4.02(b).
Marcam Solutions 401(k) Plan: as defined in Section 4.02(a).
Marcam Solutions Assets: all of the assets, properties and business of
every kind, nature and description, wherever located, real, personal or mixed,
tangible or intangible, owned, held or used in the conduct of the Marcam
Solutions Business by the Company and the Company Subsidiaries, together with
the other assets specified in this paragraph, other than the MAPICS Assets,
including and together with all right, title and interest of the Company and the
Company Subsidiaries in, to and under the following:
(a) all Proprietary Rights owned, held or used in the conduct
of the Marcam Solutions Business by the Company and the Company Subsidiaries,
including all Proprietary Rights relating to the PRISM, Protean (including
Protean financial applications), Avantis and MXP product lines (and all prior
versions thereof and works derived therefrom) and all rights to the names used
in the conduct or operations of the Marcam Solutions Business, including
"Marcam," "Marcam Solutions," "PRISM," "Protean," "Avantis" and any variations
thereof;
(b) all real property and leases of, and other interests in,
real property relating to all the offices of the Company and the Company
Subsidiaries other than the MAPICS Offices, in each case together with all
buildings, fixtures and improvements erected thereon and easements and other
rights appurtenant thereto;
(c) all personal property and interests therein, including
equipment, furniture, office equipment, communications equipment, computer
software and equipment, spare and replacement parts, and other tangible and
intangible property owned, held or used in the conduct of the Marcam Solutions
Business, wherever located (including such property and interests owned by the
Company or the Company Subsidiaries in the possession of manufacturers,
suppliers, customers, distributors, sales representatives or others or in
transit);
(d) all inventories of products, documentation, marketing
materials, supplies, disposable goods, packaging supplies, and other materials
owned, held or used in the conduct of the Marcam Solutions Business, wherever
located (including such inventories owned by the Company or the Company
Subsidiaries in the possession of manufacturers, suppliers, customers,
distributors, sales representatives or others or in transit);
(e) all rights under the Marcam Solutions Assumed Contracts;
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(f) all prepaid expenses and deposits that relate to the
Marcam Solutions Business or the Marcam Solutions Assets, including ad valorem
taxes, leases and rentals;
(g) all accounts receivable generated in the conduct of the
Marcam Solutions Business and other notes and receivables relating to the Marcam
Solutions Business;
(h) any (i) ▇▇▇▇▇ cash in the possession of the Marcam
Solutions Business, (ii) cash and cash equivalents which secure letters of
credit issued in connection with the conduct of the Marcam Solutions Business,
and (iii) cash to be contributed to the capital of, or transferred to, Marcam
Solutions pursuant to the terms of this Agreement;
(i) all shares of capital stock of Marcam Canada Holding
Corporation, ShawWare Incorporated, Obtech LLC and Avantis Holdings Corporation,
among others;
(j) all rights, claims, credits, causes of action or rights of
set-off of the Company and the Company Subsidiaries against third parties
relating to the Marcam Solutions Business or the other Marcam Solutions Assets,
including unliquidated rights under manufacturers' and vendors' warranties;
(k) all books, records, files and papers, whether in tangible
or intangible form, used in, or relating in any way to, the Marcam Solutions
Business or the Marcam Solutions Assets, including all sales, marketing and
promotional literature, manuals, data, correspondence, lists of present and
former customers, suppliers, sales representatives, resellers, affiliates and
business partners, and personnel and employment records;
(l) the corporate seals, charter documents, by-laws, minute
books and stock record books of Marcam Solutions and its Subsidiaries, and such
other records of Marcam Solutions and its Subsidiaries that relate to the
organization or capitalization of Marcam Solutions and its Subsidiaries; and
(m) all goodwill associated with the Marcam Solutions Business
or the Marcam Solutions Assets, together with the right to represent to third
parties that Marcam Solutions is the successor to the Marcam Solutions Business.
Marcam Solutions Assumed Contracts: collectively, all contracts,
agreements, leases, licenses, commitments, sales and purchase orders and other
instruments entered into in connection with the Marcam Solutions Business
(including (i) all Marcam Solutions Employee Agreements, and (ii) the letter
agreements dated as of June 10, 1997 among the Company, Marcam Solutions and
certain specified Marcam Solutions Employees relating to certain severance
benefits), other than the MAPICS Retained Contracts.
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Marcam Solutions Board: the Board of Directors of Marcam Solutions.
Marcam Solutions Business: the portion of the business conducted by the
Company and the Company Subsidiaries relating to the PRISM, Protean and Avantis
product lines and any other businesses conducted by the Company or the Company
Subsidiaries, which heretofore have been sold or otherwise disposed of or
discontinued (including the MXP product line and the business conducted by
Foresight Software, Inc. and its subsidiaries), other than the MAPICS Business.
Marcam Solutions Common Stock: the Common Stock, par value $.01 per
share, of Marcam Solutions.
Marcam Solutions Employee: a Transferred Employee or a Former Marcam
Solutions Employee.
Marcam Solutions Employee Agreements: any agreement entered into by the
Company or any Company Subsidiary with any Person (or any portion or application
of any such agreement) (A) relating to the transfer to, or ownership by, the
Company or any Company Subsidiary of any Proprietary Rights that constitute a
part of the Marcam Solutions Assets or any other confidential or proprietary
information of the Company or any Company Subsidiary that relates to the Marcam
Solutions Business, the Marcam Solutions Assets or any aspects thereof, (B) that
restricts or purports to restrict any Person's ability to use or disclose any
trade secrets or other proprietary or confidential information concerning the
Marcam Solutions Business, the Marcam Solutions Assets or any aspects thereof,
or (C) that restricts or purports to restrict any Person's ability to compete
with, or solicit employees or customers of, or others having business
relationships with, the Company or any Company Subsidiary that relates to the
Marcam Solutions Business, the Marcam Solutions Assets or any aspects thereof,
including any Employee Agreement on Ideas, Inventions, Confidential Information
and Non-Competition entered into by the Company or any Company Subsidiary with
any Person.
Marcam Solutions Indemnitees: as defined in Section 5.01.
Marcam Solutions Liabilities: all Liabilities of the Company and the
Company Subsidiaries relating to, or arising in, the conduct of the Marcam
Solutions Business by the Company and the Company Subsidiaries, together with
the other Liabilities of the Company and the Company Subsidiaries specified in
this paragraph, other than the MAPICS Liabilities, including the following:
(a) all Liabilities arising under the Marcam Solutions Assumed
Contracts, including any liabilities arising under any letters of credit issued
in connection with the Marcam Solutions Business or otherwise pursuant to an
agreement or agreements between the Company and The Chase Manhattan Bank;
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(b) the Liabilities relating to employee benefits or
compensation arrangements for employees of the Company and the Company
Subsidiaries, including Liabilities under the employee benefit agreements, plans
or other arrangements of the Company or any Company Subsidiary, set forth in
Article IV;
(c) all Liabilities for breach of contract, personal injury or
property damage (whether based on negligence, breach of warranty, strict
liability or any other theory) caused by or arising out of or resulting from,
directly or indirectly, any alleged or actual acts or omissions relating to, or
arising from, the conduct or operations of the Marcam Solutions Business by the
Company and the Company Subsidiaries;
(d) all Liabilities for all accounts payable arising out of
the conduct of the Marcam Solutions Business;
(e) all Liabilities relating to the Marcam Solutions Assets;
(f) all Liabilities for prepayment penalties (if any) and
unpaid interest under the Subordinated Notes Due 2001 issued by the Company
which will have accrued and become due and payable before the Distribution Date;
and
(g) any and all other Liabilities of every kind of the Company
and the Company Subsidiaries incurred by the Company or the Company Subsidiaries
in connection with, or arising by reason of, its ownership of the Marcam
Solutions Assets or its conduct of the Marcam Solutions Business, other than the
MAPICS Liabilities.
Marcam Solutions Options: as defined in Section 3.04(b).
Marcam Solutions Stock Plans: collectively, the 1997 Marcam Solutions,
Inc. Stock Plan, the 1997 Marcam Solution, Inc. Employee Stock Purchase Plan and
the 1997 Marcam Solutions, Inc. Non-Employee Director Stock Option Plan.
Marcam Solutions Rights: the rights to be issued pursuant to the Rights
Agreement to be entered into by Marcam Solutions and The First National Bank of
Boston.
Marcam Solutions Subsidiary: any Company Subsidiary that, as of the
Distribution Date, will be a Subsidiary of Marcam Solutions, and any other
Subsidiary of Marcam Solutions which thereafter may be organized or acquired.
Marcam Solutions Warrants: as defined in Section 3.04(h)(ii), which
warrants shall be in substantially the form of the General Atlantic Warrants.
Measurement Period: as defined in Section 3.04(a).
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Nasdaq: the Nasdaq National Market.
Note: the unsecured Promissory Note with a principal amount of up to
$39 million payable to the order of Marcam Solutions by the Company in
substantially the form attached hereto as Exhibit B.
Person: an individual, a partnership, a joint venture, a corporation, a
limited liability company, a trust, an unincorporated organization or a
government or any department or agency thereof.
Policies: as defined in Section 3.05(a).
Premium Administration: with respect to each Policy, the accounting for
premiums, retrospectively-rated premiums, defense costs, indemnity payments,
deductibles and retentions as appropriate under the terms and conditions of each
of the Policies.
Proposed MAPICS Public Offering: the proposed underwritten public
offering of MAPICS Common Stock pursuant to the Company's Registration Statement
on Form S-3 filed with the Commission on April 30, 1997.
Proprietary Rights: all (A) patents, patent applications, patent
disclosures and all related continuation, continuation-in-part, divisional,
reissue, re-examination, utility, model, certificate of invention and design
patents, patent applications, registrations and applications for registrations,
(B) trademarks, service marks, trade dress, logos, tradenames, service names and
corporate names and registrations and applications for registration thereof, (C)
copyrights and registrations and applications for registration thereof, (D) mask
works and registrations and applications for registration thereof, (E) computer
software, data and documentation, (F) trade secrets and confidential business
information, whether patentable or nonpatentable and whether or not reduced to
practice, know-how, manufacturing and product processes and techniques, research
and development information, copyrightable works, financial, marketing and
business data, pricing and cost information, business and marketing plans and
customer and supplier lists and information, (G) other proprietary rights
relating to any of the foregoing (including without limitation associated
goodwill and remedies against infringements thereof and rights of protection of
an interest therein under the laws of all jurisdictions) and (H) copies and
tangible embodiments thereof.
Proxy Statement/Prospectus: the Proxy Statement/Prospectus filed by the
Company with the Commission, the definitive form of which was sent to the record
holders of the Company Common Stock and Company Preferred Stock in connection
with the Special Meeting.
Record Date: the close of business on the date to be determined by the
Company Board, or a committee thereof, as the record date for the Distribution.
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Representative: with respect to any Person, any of such Person's
directors, officers, employees, agents, consultants, advisors, accountants,
attorneys and representatives.
Securities Act: the Securities Act of 1933, as amended.
Special Meeting: the special meeting of the stockholders of the Company
held to consider and act upon a proposal to approve the Distribution and certain
of the other transactions contemplated by this Agreement, among other things.
Subsidiary: with respect to any Person, any corporation or other legal
entity of which such Person or any of its Subsidiaries controls or owns,
directly or indirectly, more than 50% of the stock or other equity interest, or
more than 50% of the voting power entitled to vote on the election of members to
the board of directors or similar governing body.
Subordinated Debt Warrants Agreement: as defined in Section 3.04(i).
Tax: as defined in the Tax Sharing Agreement.
Tax Opinions: as defined in Section 2.03.
Tax Ruling: a private letter ruling issued by the IRS with respect to
the tax-free nature of the Distribution for federal income tax purposes under
Section 355 of the Code as described in the Proxy Statement/Prospectus.
Tax Sharing Agreement: the Tax Sharing Agreement in substantially the
form attached hereto as Exhibit C.
Third Party Claim: as defined in Section 5.04(a)(i).
Transferred Employees: each active employee of the Company or a Company
Subsidiary (including any employee on authorized leave of absence, sick pay
leave, short term disability or otherwise has legally protected rights to return
to work in the future) who is not designated by the Company in writing as being
employed in connection with the MAPICS Business as of the Distribution Date.
Section 1.02 Exhibits, etc.. References to an "Exhibit" or "Schedule"
are, unless otherwise specified, to one of the Exhibits or Schedules attached to
this Agreement, and references to "Section" or "Article" are, unless otherwise
specified, to one of the Sections or Articles of this Agreement.
Section 1.03 References to Time. All references in this Agreement to
times of day shall be to Boston time.
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ARTICLE II
THE DISTRIBUTION
Section 2.01 The Distribution. (a) Subject to the satisfaction or
waiver of the conditions to the Distribution set forth in this Agreement, on or
prior to the Distribution Date, the Company shall deliver to the Agent for the
benefit of holders of record of the Company Common Stock and Company Preferred
Stock on the Record Date, a certificate or certificates, duly endorsed by the
Company in blank or accompanied by duly executed stock powers, representing in
the aggregate all of the then outstanding shares of Marcam Solutions Common
Stock owned by the Company. Marcam Solutions shall provide to the Agent all
share certificates and information required in order to complete the
Distribution. The Company shall instruct the Agent to distribute on the
Distribution Date (i) to holders of record of Company Common Stock on the Record
Date one share of Marcam Solutions Common Stock (together with the associated
Marcam Solutions Rights) for every two shares of Company Common Stock so held
and (ii) to holders of record of Company Preferred Stock on the Record Date five
shares of Marcam Solutions Common Stock (together with the associated Marcam
Solutions Rights) for each share of Company Preferred Stock so held, and in each
case, cash in lieu of fractional shares of Marcam Solutions Common Stock
obtained in the manner provided below; provided, however, that, notwithstanding
anything to the contrary in this Agreement, holders of shares of Company Common
Stock or Company Preferred Stock who have properly asserted their appraisal
rights under Massachusetts law shall not be entitled to receive the Distribution
with respect to their shares of Company Common Stock or Company Preferred Stock.
All of the shares of Marcam Solutions Common Stock issued in the Distribution
shall be fully paid, nonassessable and free of preemptive rights.
(b) No certificates or scrip representing fractional interests
in shares of Marcam Solutions Common Stock ("Fractional Shares") will be issued
to holders of Company Common Stock or Company Preferred Stock in the
Distribution and in lieu of receiving fractional shares, each holder of Company
Common Stock or Company Preferred Stock who would otherwise be entitled to
receive a Fractional Share pursuant to the Distribution will receive cash for
such Fractional Share. The Company shall instruct the Agent, acting as agent for
such holders otherwise entitled to receive Fractional Shares in the
Distribution, to aggregate and sell in the open market all Fractional Shares at
then prevailing market prices and to distribute the net proceeds (after
deduction of brokerage fees) to the holders of Company Common Stock or Company
Preferred Stock entitled thereto, net of any amount required to be withheld
under applicable law.
Section 2.02 Cooperation With Respect to the Distribution.
(a) The Company and Marcam Solutions shall prepare, and the
Company shall file with the Commission and mail to the holders of Company Common
Stock and
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Company Preferred Stock as of the record date for the Special Meeting,
the Proxy Statement/Prospectus, which shall set forth appropriate disclosure
concerning Marcam Solutions, MAPICS, the Distribution and other matters. The
Company and Marcam Solutions shall also prepare, and Marcam Solutions shall file
with the Commission, the Form S-4, which shall include the Proxy
Statement/Prospectus. The Company and Marcam Solutions shall use their
respective reasonable best efforts to cause the Form S-4 to become effective
under the Securities Act as promptly as reasonably practicable.
(b) The Company and Marcam Solutions shall prepare, and Marcam
Solutions shall file with the Commission, the Form 10. Prior to the
Distribution, the Company and Marcam Solutions shall use their respective
reasonable best efforts to cause the Form 10 to become effective under the
Exchange Act as promptly as reasonable practicable. The Company and Marcam
Solutions shall prepare, and the Company shall cause to be mailed to the holders
of the Company Common Stock and Company Preferred Stock of record on the Record
Date, the information statement contained in the Form 10, which shall set forth
appropriate disclosure concerning Marcam Solutions, the Distribution and other
matters.
(c) The Company shall, as the sole stockholder of Marcam
Solutions, approve and adopt the Marcam Solutions Stock Plans, and the Company
and Marcam Solutions shall cooperate in preparing, filing with the Commission
and causing to become effective any registration statements or amendments
thereof which are required to reflect the establishment of, or amendments to,
any employee benefit and other plans contemplated by this Agreement, including
the Form S-8 with respect to the Marcam Solutions Stock Plans.
(d) The Company and Marcam Solutions shall take all such
action as may be necessary or appropriate under the securities or blue sky laws
of the states or other political subdivisions of the United States and the
securities laws of any applicable foreign countries or other political
subdivision thereof, in connection with the transactions contemplated by this
Agreement.
(e) The Company and Marcam Solutions shall have prepared, and
Marcam Solutions shall file and pursue, an application to permit listing of the
Marcam Solutions Common Stock and the Marcam Solutions Rights on Nasdaq.
(f) The Company and Marcam Solutions shall each take all such
action as may be necessary or appropriate to cause the conditions set forth in
Section 2.03 to be satisfied and to effect the Distribution on the Distribution
Date.
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Section 2.03 Conditions to the Distribution. The Company Board shall in
its discretion establish the Record Date and the Distribution Date and all
appropriate procedures in connection with the Distribution. The Distribution
shall be subject to satisfaction of the following conditions:
(i) the approval of the Distribution and certain related
transactions by the holders of at least two-thirds of the combined
voting power of the outstanding shares of all classes and series of the
Company's capital stock, voting together as a single class, at the
Special Meeting;
(ii) the receipt by the Company of the Tax Ruling or, at the
option of the Company Board, the opinions of Skadden, Arps, Slate,
▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special tax counsel to the Company, and Coopers &
▇▇▇▇▇▇▇ L.L.P., independent accountants of the Company, in form and
substance satisfactory to the Company Board, to the effect described in
the Proxy Statement/Prospectus (the "Tax Opinions") and such Tax Ruling
or such Tax Opinions shall be in full force and effect and shall not
have been modified or amended in any respect adversely affecting the
tax consequences set forth therein;
(iii) the transactions contemplated by Section 3.01 shall
have been completed in all material respects;
(iv) the Form 10 shall have been declared effective by the
Commission and no stop order shall be in effect with respect thereto;
(v) there not being in effect any statute, rule, regulation or
order of any court, governmental or regulatory body which prohibits or
makes illegal the transactions contemplated by this Agreement and the
Ancillary Agreements;
(vi) the receipt of all necessary regulatory approvals;
(vii) the receipt of all necessary consents of third parties;
(viii) the approval of the shares of Marcam Solutions Common
Stock and associated Marcam Solutions Rights for listing on Nasdaq; and
(ix) the holders of less than one percent (1%) of the shares
of capital stock of the Company outstanding on the record date for the
Special Meeting exercising and perfecting statutory appraisal rights
available under Massachusetts Law;
provided, however, that the Company Board may waive any condition to the
Distribution other than those set forth in clauses (i), (ii), (iii), (iv) and
(v) of this sentence; and provided further, that satisfaction of the conditions
set forth in this Section 2.03 shall not create any obligation on the part of
the Company or any other party hereto to effect the Distribution prior to the
Record Date
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or in any way limit the Company's power of termination set forth in Section 7.10
or alter the consequences of any such termination from those specified in such
section. Even if all of the conditions set forth in this Section 2.03 are
satisfied, the Company Board shall have the right to abandon, defer or modify
the Distribution and any related transactions at any time prior to the
Distribution Date. The Company Board will not and may not, however, make any
changes in the terms of the Distribution after the Distribution is approved by
the Company's stockholders unless the Company Board determines that such changes
would be in the best interests of the Company and not be materially adverse to
the Company's stockholders.
ARTICLE III
TRANSACTIONS RELATING TO THE DISTRIBUTION
Section 3.01 Corporate Restructurings.
(a) Upon the terms and subject to the conditions set forth in
this Agreement, on or prior to the Distribution Date, (i) the Company shall
sell, transfer, assign and deliver (or cause to be sold, transferred, assigned
and delivered) to Marcam Solutions (or its assigns), and Marcam Solutions (or
its assigns) shall purchase, acquire and accept from the Company, all of the
right, title and interest of the Company and the Company Subsidiaries in and to
the Marcam Solutions Assets and (ii) the Company shall transfer to Marcam
Solutions an aggregate of $39 million in cash, which transfer may initially be
satisfied (in whole or in part) by the issuance of the Note to Marcam Solutions.
In consideration for the sale, transfer, assignment and delivery of the Marcam
Solutions Assets and such cash transfer and upon the terms and subject to the
conditions set forth in this Agreement, Marcam Solutions shall (i) assume, pay
and perform the Marcam Solutions Liabilities from and after the Distribution
Date, (ii) issue to the Company a number of shares (rounded down to the next
lower whole number of shares) of Marcam Solutions Common Stock (together with
the associated Marcam Solutions Rights) equal to the product of (x) the number
of shares of Company Common Stock (determined after giving effect to the
conversion of all outstanding shares of Company Preferred Stock) outstanding on
the Record Date multiplied by (y) the Company Common Distribution Ratio, so that
the Company will have a sufficient number of shares of Marcam Solutions Common
Stock (together with the shares of Marcam Solutions Common Stock then held by
the Company) to make the Distribution, and (iii) issue to the Company the Marcam
Solutions Warrants. Marcam Solutions may assign to any of its subsidiaries the
right to purchase and acquire all or any portion of the Marcam Solutions Assets.
The Company and Marcam Solutions shall take all actions necessary or desirable
to effectuate the transactions contemplated by this Section 3.01(a), and may
cause the transactions contemplated by this Section 3.01(a) to be accomplished
by merger, consolidation, transfer of assets and liabilities, liquidation or
dissolution of various entities, or other means that the Company and Marcam
Solutions deem to be necessary or desirable, including by the establishment of
additional foreign subsidiaries of the Company and the transfer of assets among
them. To the extent there are any cash payments made (and not otherwise
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reimbursed) by the Company or Marcam Solutions (or any of their respective
Subsidiaries) in consideration of the asset transfers and/or corporate
reorganizations contemplated by this Section 3.01 or any Ancillary Agreement in
connection with the Distribution, such payments (i) when made by the Company or
a Company Subsidiary to Marcam Solutions or any Marcam Solutions Subsidiary,
shall be offset against the $39 million cash transfer to be made by the Company
to Marcam Solutions contemplated by this Section 3.01, and (ii) when made by
Marcam Solutions or a Marcam Solutions Subsidiary to MAPICS or any MAPICS
Subsidiary, shall be added to such $39 million cash transfer to be made by the
Company to Marcam Solutions contemplated by this Section 3.01.
(b) Concurrently with the execution and delivery of this
Agreement (or at such other time prior to the Distribution Date determined by
the parties), the Company and Marcam Solutions shall execute and deliver (or
cause their respective subsidiaries to execute and deliver) to the other parties
thereto the General Services Agreement, the Back-Up License Agreement, the
International Facilities Sharing Agreement, the Tax Sharing Agreement and any
other Ancillary Agreements necessary or desirable in connection with the
transactions contemplated hereby and thereby. In the event of a conflict between
the terms of this Agreement and the terms of any of such other Ancillary
Agreements, the terms of this Agreement shall govern.
(c) The Company shall retain the MAPICS Assets and shall pay
or perform all of the MAPICS Liabilities, which shall be retained by and shall
remain the exclusive responsibility of the Company and the Company Subsidiaries
from and after the Distribution Date.
(d) Notwithstanding anything to the contrary in this
Agreement, the rights and obligations of the Company and Marcam Solutions with
respect to all matters addressed in the Tax Sharing Agreement shall be governed
by the Tax Sharing Agreement.
(e) In connection with the transfers of assets (other than
capital stock) and the assumptions of the Marcam Solutions Liabilities
contemplated by subsection (a) of this Section, the Company and Marcam Solutions
shall execute or cause to be executed by the appropriate Persons Conveyance and
Assumption Instruments and notarial and other deeds in such forms as the Company
and Marcam Solutions shall reasonably agree. The transfer of capital stock owned
by either entity, as the case may be, shall be effected by means of delivery of
stock certificates duly endorsed or accompanied by duly executed stock powers
and notation on the stock records books of the corporation or other legal
entities involved and, to the extent required by applicable law, by notation on
appropriate registries and notarial and other deeds. For capital stock that is
not certificated, the transfer of capital stock owned by either entity, as the
case may be, shall be effected by means of notation on the record books of the
Company and by such other means as are required in the jurisdiction where the
company is incorporated and domiciled.
(f) Each of the parties hereto understands and agrees that no
party hereto is, in this Agreement or in any other agreement or document
contemplated by this Agreement or
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otherwise, representing and warranting in any way as to the title, value or
freedom from encumbrance of, or any other matter concerning, any assets of such
party, it being agreed and understood that all assets are being transferred
"as is, where is."
Section 3.02 Repayment of Intercompany Indebtedness.
(a) Elimination of Intercompany Accounts. Marcam Solutions and
the Company shall use their reasonable best efforts to cause all outstanding
intercompany receivables, payables and loans (other than the Note) between an
entity that, effective as of the close of business on the business day
immediately preceding the Distribution Date, will be included among Marcam
Solutions and the Marcam Solutions Subsidiaries, on the one hand, and an entity
that will be included among MAPICS and the MAPICS Subsidiaries, on the other
hand, to be eliminated, released or forgiven no later than the close of business
on the business day immediately prior to the Distribution Date or, to the extent
Marcam Solutions and the Company are not able to determine, prior to such date,
the amount of any such receivable, payable or loan which is to be eliminated,
such amount shall be repaid within 45 days thereafter; provided, however, that
all receivables and payables outstanding as of such date arising out of
purchases of goods or services in the ordinary course of business between an
entity that, effective as of the Cut-Off Date, will be included among Marcam
Solutions and the Marcam Solutions Subsidiaries, on the one hand, and an entity
that will be included among MAPICS the MAPICS Subsidiaries, on the other hand,
will remain outstanding and will be paid after the Distribution Date in
accordance with past practice or in accordance with the terms of any applicable
contract.
(b) Cash Management After the Distribution Date. The Company
has established and maintains separate cash management systems, and maintains
separate bank accounts and lockboxes with respect to the MAPICS Business and the
Marcam Solutions Business. From and after the Distribution Date, MAPICS shall be
entitled to all such accounts and lockboxes related to the MAPICS Business and
Marcam Solutions shall be entitled to all such accounts and lockboxes related to
the Marcam Solutions Business. Following the Distribution Date (i) MAPICS shall,
and shall cause its Affiliates to, remit to Marcam Solutions, no less frequently
than weekly, any amounts (net of returned checks and similar items) received by
any of them on or after the Distribution Date which constitute Marcam Solutions
Assets and (ii) Marcam Solutions shall, and shall cause its Affiliates to, remit
to MAPICS, no less frequently than weekly, any amounts (net of returned checks
and similar items) received by any of them on or after the Distribution Date
which constitute MAPICS Assets.
Section 3.03 The Marcam Solutions Board; Resignations; Employees.
(a) Marcam Solutions Directors. On or prior to the
Distribution Date, the Marcam Solutions Board shall consist of, and Marcam
Solutions and the Company shall take all actions which may be required to elect
or otherwise appoint as directors of Marcam Solutions on or prior to the
Distribution Date, the following persons: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇.
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(b) Resignations. Promptly following the closing of the
Proposed MAPICS Public Offering, the Company shall use its best efforts to cause
following persons who are currently directors or officers of the Company to
resign as directors or officers of the Company: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇. Notwithstanding
any provisions herein to the contrary, the Company and Marcam Solutions will
treat such resignations as retirements for the purposes of applying the
provisions of the Company Stock Option Plans and the Company Options to such
resignations, as set forth in Section 3.04(g).
(c) Election of MAPICS Directors. After the earlier of the
completion of the Proposed MAPICS Public Offering or, if such offering is to be
postponed for a significant period of time after the Distribution, promptly
after such postponement, the Board of Directors of MAPICS shall consist of, and
MAPICS shall take all actions which may be required to elect or otherwise
appoint as directors of MAPICS, the following persons: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇▇, 3d, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇.
Section 3.04 Stock Options; Warrants; Restricted Stock.
(a) Company Stock Option Plans. The Company (and MAPICS after
the Distribution) shall be solely responsible for satisfying all exercises of
options to purchase shares of Company Common Stock granted under the Company
Stock Option Plans (the "Company Options") that are outstanding as of the
Distribution Date. The Company shall use all reasonable efforts to amend all
Company Options outstanding as of the Distribution Date to provide that, from
and after the Distribution Date, for all purposes under the Company Stock Option
Plans and the Company Options, (i) the employment of a holder of a Company
Option by any of the Company, Marcam Solutions or their respective subsidiaries
or successors shall be treated as the employment of such holder by the Company,
and (ii) the service as a director, officer or consultant by a holder of a
Company Option to any of the Company, Marcam Solutions or their respective
subsidiaries or successors shall be treated as the service as a director,
officer or consultant, respectively, by such holder to the Company. Nothing in
this Agreement, however, shall obligate the Company (or MAPICS) to grant any
options under the Company Stock Option Plans to any Transferred Employee after
the Distribution Date, and any commitments or obligations of the Company to
grant options to purchase shares of Company Common Stock under the Company Stock
Option Plans to any Transferred Employee which were to be performed after the
Distribution Date shall be deemed satisfied in full by the grant of an option,
if any, to such Transferred Employee under a Marcam Solutions Stock Plan.
Effective as of the Distribution Date, the per share exercise price of each
Company Option outstanding as of the Distribution Date (the "Company Option
Exercise Price") shall be reduced to an amount (the "Adjusted Company Option
Exercise Price") equal to the product (rounded to the nearest ▇▇▇▇▇) obtained by
multiplying the Company Option Exercise Price by a fraction, the numerator of
which shall be the average of the closing sales prices per share of a share of
Company Common Stock on Nasdaq for the five consecutive trading days beginning
on the first trading day following the Distribution Date (the "Measurement
Period") and the denominator of which shall
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be the sum of (i) the average of the closing sales prices per share of a share
of the Company Common Stock on Nasdaq for the Measurement Period plus (ii) the
product of (A) the average of the closing sales prices per share of a share of
Marcam Solutions Common Stock on Nasdaq for the Measurement Period multiplied by
(B) the Company Common Distribution Ratio (such fraction, the "Exercise Price
Adjustment Ratio"). Except as provided in this Section 3.04, no changes shall be
made to the options granted under the Company Stock Option Plans in connection
with the Distribution.
(b) Marcam Solutions Stock Plans. Before the Distribution
Date, Marcam Solutions shall grant to each holder of a Company Option
outstanding on the Distribution Date, with respect to each such Company Option
held, an option to purchase shares of Marcam Solutions Common Stock granted
under the Marcam Solutions Stock Plans (a "Marcam Solutions Option"), which
shall (i) be exercisable for the number of shares of Marcam Solutions Common
Stock equal to the product of (A) the number of shares of Company Common Stock
subject to such Company Option multiplied by (B) the Company Common Distribution
Ratio; (ii) have an exercise price equal to (X) the Company Option Exercise
Price minus the Adjusted Company Option Exercise Price, in each case for such
Company Option, divided by (Y) the Company Common Distribution Ratio; and (iii)
vest in accordance with the same schedule, and be exercisable for the same
periods, as such Company Option, except that (L) for all purposes under the
Marcam Solutions Stock Plans and the Marcam Solutions Options, (1) the
employment of a holder of a Marcam Solutions Option by any of the Company,
Marcam Solutions or their respective subsidiaries or successors shall be treated
as the employment of such holder by Marcam Solutions, and (2) the service as a
director, officer or consultant by a holder of a Marcam Solutions Option to any
of the Company, Marcam Solutions or their respective subsidiaries or successors
shall be treated as the service as a director, officer or consultant,
respectively, by such holder to Marcam Solutions, and (M) the Marcam Solutions
Options shall only be exercisable after the Distribution Date. Within ten (10)
business days after the Distribution Date and from time to time thereafter upon
Marcam Solution's request, MAPICS shall provide Marcam Solutions with such
information regarding the Company Options as may be reasonably necessary for
Marcam Solutions to comply with its obligations under this Section 3.04,
including, but not limited to, the names and addresses of all holders of Company
Options, and the number of shares of Company Common Stock subject to, and the
grant dates, exercise prices, vesting schedules, expiration dates and other
terms and conditions of, each Company Option.
(c) Certain Modifications. After the Distribution Date, if the
holder of a Company Option is an employee, director, officer or consultant of
MAPICS and if MAPICS shall modify the vesting schedule, exercise period or both
for a Company Option outstanding on the Distribution Date, Marcam Solutions
shall cause the Marcam Solutions Option granted pursuant to Section 3.04(b) with
respect to such Company Option to be modified in the same manner; provided,
however, that Marcam Solutions shall not be obligated to make any such
modification if such modification would result in a charge to Marcam Solutions'
earnings or a loss of a tax deduction by Marcam Solutions as a result of limits
imposed by Section 162(m) of
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the Code, or require an amendment requiring approval of its stockholders to any
Marcam Solutions Stock Plan. After the Distribution Date, if the holder of a
Marcam Solutions Option is an employee, director, officer or consultant of
Marcam Solutions and if Marcam Solutions shall modify the vesting schedule,
exercise period or both for a Marcam Solutions Option granted pursuant to
Section 3.04(b) with respect to a Company Option outstanding on the Distribution
Date, MAPICS shall cause such Company Option to be modified in the same manner;
provided, however, that MAPICS shall not be obligated to make any such
modification if such modification would result in a charge to MAPICS' earnings
or a loss of a tax deduction by MAPICS as a result of limits imposed by Section
162(m) of the Code, or require an amendment requiring approval of its
stockholders to any Company Stock Option Plan. Each of MAPICS and Marcam
Solutions shall promptly notify the other in writing of the occurrence of any
modification that requires the other to make a modification pursuant to this
Section 3.04(c), and the other shall make such required modification as soon as
reasonable practicable after receipt of such written notice but in any event
within sufficient time so that the option holder's rights are not adversely
effected.
(d) Certain Other Notices. Each of MAPICS and Marcam Solutions
shall promptly notify the other in writing of the death or termination of
employment of any holder of a Company Option outstanding on the Distribution
Date or a Marcam Solutions Option granted pursuant to Section 3.04(b) for use by
the other in administering its stock plans.
(e) Interpretation. The committee of the Company Board
responsible for administering the Company Stock Option Plans shall be
responsible for interpreting and applying this Section 3.04 with respect to the
Company Options outstanding on the Distribution Date, and the interpretations
and applications of this Section 3.04 by such committee shall be binding upon
all holders of Company Options. The committee of the Marcam Solutions Board
responsible for administering the Marcam Solutions Stock Plans shall be
responsible for interpreting and applying this Section 3.04 with respect to the
Marcam Solutions Options granted pursuant to Section 3.04(b), and the
interpretations and applications of this Section 3.04 by such committee shall be
binding upon all holders of such Marcam Solutions Options.
(f) Restricted Stock Awards. The Company shall use all
reasonable efforts to amend all stock restriction agreements relating to awards
of stock under the Company Stock Option Plans that are in effect on the
Distribution Date (i) to clarify that the shares of Marcam Solutions Common
Stock to be received in the Distribution in respect of shares of Company Common
Stock subject to such agreements are also subject to such agreements; (ii) to
add Marcam Solutions as a party to such agreements with the same rights as with
respect to the Marcam Solutions Common Stock as the Company has with respect to
the Company Common Stock under such agreements; and (iii) to provide that (A)
the employment of a holder of shares of Company Common Stock subject to such an
agreement by any of the Company, Marcam Solutions or their respective
subsidiaries or successors shall be treated as the employment of such holder by
both the Company and Marcam Solutions, and (B) the service as a director,
officer or consultant by a holder of shares of Company Common Stock subject to
such an agreement to any
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of the Company, Marcam Solutions or their respective subsidiaries or successors
shall be treated as the service as a director, officer or consultant,
respectively, by such holder to both the Company and Marcam Solutions.
(g) Director Options. With respect to Company Options granted
pursuant to the Company Stock Option Plans to those directors of the Company
identified in Section 3.03(b), such directors shall be deemed to have "retired"
such that all such Company Options granted to such directors in consideration of
their service on the Company Board on or prior to the effective date of their
resignations shall continue to vest in accordance with the terms of the Company
Stock Option Plans and Company Options as if such directors had retired, rather
than had resigned as directors of the Company.
(h) General Atlantic Warrants. (i) Effective as of the
Distribution Date, the per share exercise price (the "General Atlantic Warrant
Exercise Price") of each Marcam Corporation Common Stock Purchase Warrant
originally issued on July 23, 1996 (collectively, the "General Atlantic
Warrants") outstanding as of the Distribution Date shall be reduced to an amount
(the "Adjusted General Atlantic Warrant Exercise Price") equal to the product
(rounded to the nearest ▇▇▇▇▇) obtained by multiplying the General Atlantic
Warrant Exercise Price by the Exercise Price Adjustment Ratio. Except as
provided in this Section 3.04(h), no changes shall be made to the General
Atlantic Warrants in connection with the Distribution.
(ii) In connection with the Distribution, the
Company shall deliver on the Distribution Date to each record holder of a
General Atlantic Warrant a warrant to purchase shares of Marcam Solutions Common
Stock (the "Marcam Solutions Warrants"), each of which shall (A) be exercisable
for the number of shares of Marcam Solutions Common Stock equal to the product
of (1) the number of shares of Company Common Stock subject to such General
Atlantic Warrant multiplied by (2) the Company Common Distribution Ratio; and
(B) have an exercise price equal to (1) the General Atlantic Warrant Exercise
Price minus the Adjusted General Atlantic Warrant Exercise Price divided by (2)
the Company Common Distribution Ratio.
(i) Subordinated Debt Warrants. In connection with the
Distribution, the Company shall make the adjustments to the exercise price of,
and number of shares of Company Common Stock subject to, the warrants to
purchase shares of Company Common Stock issued pursuant to the Warrant Agreement
dated May 12, 1994 among the Company and the purchasers named on Annex 1 thereto
(the "Subordinated Debt Warrant Agreement") contemplated by the Subordinated
Debt Warrant Agreement.
(j) Agreements with Optionees and Warrantholders. The Company
may enter into written agreements with holders of options and warrants
contemplated to be altered by the requirements of this Section 3.04.
Section 3.05 Insurance.
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(a) Coverage. The Company and its predecessors have
historically provided various forms of insurance coverage ("Policies") which
include Marcam Solutions and the Marcam Solutions Subsidiaries within the
definition of the named insured in respect of claims or occurrences relating to,
without limitation, property damage, manufacturer's output, business
interruption, transit, fire, extended coverage, fiduciary, fidelity,
environmental impairment, employee crime, general liability, errors and
omissions, products' liability, automobile liability and employer's liability.
Except for those Policies issued in the name of any Marcam Solutions Subsidiary,
coverage of Marcam Solutions and the Marcam Solutions Subsidiaries shall cease
under the Policies as of 11:59 p.m., Boston time, on the Distribution Date,
unless Marcam Solutions shall have earlier obtained appropriate coverage and
notified the Company in writing to that effect. From and after the Distribution
Date, Marcam Solutions and Marcam Solutions Subsidiaries will be responsible for
obtaining and maintaining insurance coverages in their own right. The Company
shall retain the Policies, together with the rights, benefits and privileges
thereunder. Marcam Solutions and the Marcam Solutions Subsidiaries shall have
the right to present claims under such Policies for insured incidents occurring
from the date said coverage first commenced through the Distribution Date to the
extent that the terms and conditions of any such Policies so allow. It is
understood that any such Policies written on a "claims made" basis rather than
"occurrence" basis may not provide coverage to Marcam Solutions and the Marcam
Solutions Subsidiaries for incidents occurring prior to the Distribution Date
but which are first reported after the Distribution Date. If at the time of the
filing of a claim under any Policy there is any deductible amount or self
insured portion applicable to such claim, the party filing such claim shall be
liable for payment of such deductible amount or self insured portion.
(b) Administration and Reserves. From and after the
Cut-off Date:
(i) The Company shall be responsible for the
(A) Premium Administration of all Policies and (B) Claims Administration with
respect to the MAPICS Liabilities; provided, that the retention of the Policies
by the Company is in no way intended to limit, inhibit or preclude any right to
insurance coverage for any insured claim of a named insured under the Policies,
including, but not limited to, Marcam Solutions and the Marcam Solutions
Subsidiaries;
(ii) Marcam Solutions or a Marcam Solutions
Subsidiary, as appropriate, shall be responsible for the Claims Administration
with respect to the Marcam Solutions Liabilities;
(iii) The Company or a Company Subsidiary, as
appropriate, shall be entitled to reserves or the benefit of reserves held by
any insurance carrier with respect to the MAPICS Liabilities; and
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(iv) Marcam Solutions or a Marcam Solutions
Subsidiary, as appropriate, shall be entitled to reserves or the benefit of
reserves held by any insurance carrier with respect to Marcam Solutions
Liabilities.
(c) Insurance Premiums. The Company shall pay the premiums, to
the extent that Marcam Solutions or a Marcam Solutions Subsidiary does not pay
premiums with respect to Marcam Solutions Liabilities (retrospectively-rated or
otherwise), as required under the terms and conditions of the respective
Policies, whereupon Marcam Solutions or a Marcam Solutions Subsidiary, as
appropriate, shall upon receipt of a copy of the retrospective-rating adjustment
forthwith reimburse the Company or a Company Subsidiary, as appropriate, for
that portion of such premiums paid by the Company or Company Subsidiaries, as
appropriate, as are attributable to the Marcam Solutions Liabilities. In such
circumstances where the Company receives an adjustment to the annual premium
through the insurance carriers' audit of existing coverages at the Distribution
Date and to the extent that such adjustment can be reasonably attributable to
the termination of insurance coverage with respect to Marcam Solutions or a
Marcam Solutions Subsidiary, then such adjustment should be paid to or
reimbursed from Marcam Solutions or a Marcam Solutions Subsidiary.
(d) Insurance Proceeds. Proceeds received with respect to
claims made under the Policies shall be paid to the Company with respect to the
MAPICS Liabilities and to Marcam Solutions with respect to the Marcam Solutions
Liabilities. Subject to Section 3.05(a) hereof, the Company shall use its
reasonable efforts to obtain recoveries for Marcam Solutions and its Affiliates
from the Company's insurance carriers for coverage available to Marcam Solutions
and its Affiliates and will keep Marcam Solutions reasonably informed of the
Company's efforts under this Section 3.05(d). The Company will reimburse Marcam
Solutions for any recovery obtained by it pursuant to such claims; provided,
however, that notwithstanding the foregoing, if the Company has made a claim or
claims under an insurance policy which is not to be paid to Marcam Solutions
pursuant to this Section 3.05 and a claim or claims which are to be paid to
Marcam Solutions pursuant to this Section 3.05 and the amount of the recovery
for such claims is limited by the amount of coverage provided by such policy,
the Company and Marcam Solutions shall mutually agree as to the allocation of
the recovery between the Company and Marcam Solutions for such claims. Marcam
Solutions shall pay all reasonable out-of-pocket costs (which expressly exclude
internal administration costs) incurred by the Company after the Distribution
Date in making any claim pursuant to this Section 3.05. Marcam Solutions shall
make available to the Company such of its employees as the Company may
reasonably request as witnesses or deponents in connection with the Company's
management of claims, at Marcam Solutions' sole cost and expense. If the Company
has paid in full a recovery to Marcam Solutions for such a claim and is required
to return any amounts received relating to such claim to the insurer, and Marcam
Solutions receives proceeds from any other person with respect to such claim, it
will pay over to the Company the amount of proceeds it has received to the
extent that the Company is required to return such amounts to the insurer.
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(e) Agreement for Waiver of Conflict and Shared Defense. If a
Policy or Policies provide coverage for both the Company and Marcam Solutions
relating to the same occurrence, the Company and Marcam Solutions shall jointly
defend and shall waive any conflict of interest necessary to the conduct of that
joint defense. Nothing in this Section 3.05(e) shall be construed to limit or
otherwise alter in any way the indemnity obligations of the parties to this
Agreement, including those created by this Agreement, by operation of law or
otherwise.
(f) Directors' and Officers' Insurance. The Company shall use
its reasonable efforts to cause the persons currently serving as officers and/or
directors of the Company who will become effective as of the Distribution Date
officers and/or directors of Marcam Solutions to be covered for a period of
three years from the Distribution Date by the directors' and officers' liability
insurance policy maintained by the Company (provided that the Company may
substitute therefor policies of at least the same coverage and amounts
containing terms and conditions which are not less advantageous to such officers
and directors than such policy) with respect to matters covered under the
existing policy occurring on or prior to the Distribution Date which were
committed by such officers and/or directors in their capacity as such; provided,
however, that in no event shall the Company be required to expend with respect
to any year more than 110% of the current annual premium expended by the Company
(the "Insurance Amount") to maintain or procure insurance coverage pursuant
hereto; and further provided, that if the Company is unable to maintain or
obtain the full amount of insurance called for by this subsection 3.06(f), the
Company shall use its reasonable efforts to obtain as much comparable insurance
as available for the Insurance Amount. In the event the Company or any of its
successors or assigns (i) consolidates with or merges into any other Person and
shall not be the continuing or surviving corporation or entity of such
consolidation or merger, or (ii) transfers or conveys all or substantially all
of its properties and assets to any Person, then, and in each such case, to the
extent necessary, proper provision shall be made so that the successors and
assigns of the Company assume the obligations set forth in this Section 3.05(f).
The provisions of this subsection 3.05(f) are intended to be for the benefit of,
and shall be enforceable by, each such officer and director and his or her heirs
and representatives.
Section 3.06 Use of Names. On and after the Distribution Date, MAPICS
and Marcam Solutions (including their respective Subsidiaries) shall not
represent to third parties that either is affiliated with the other, except as
may be required by law. Notwithstanding the foregoing, during the period ending
on the date twelve months following the Distribution Date, each of MAPICS and
Marcam Solutions (including their respective Subsidiaries) may continue to use
printed materials that exist on the Distribution Date and bear the name "Marcam
Corporation" or that otherwise bear markings that reflect the relationship that
existed between Marcam Solutions and the Company prior to the Distribution Date.
Within such twelve-month period, each party, at its own expense, shall remove
(or if necessary, cover up) any and all exterior and interior signs and
identifiers which refer or pertain to "Marcam Corporation" or, in the case of
MAPICS or a MAPICS Subsidiary, to "Marcam Solutions" or, in the case of Marcam
Solutions or a Marcam Solutions Subsidiary, to "MAPICS." After such twelve-month
period, neither MAPICS nor Marcam Solutions (including their respective
Subsidiaries) shall use or display the other's name
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or other trademarks, trade names or identifiers owned or licensed by the other
without the other's prior written consent.
Section 3.07 Transfers Not Effected Prior to the Distribution;
Transfers Deemed Effective as of the Cut-off Date. To the extent that any
transfers and assumptions contemplated by this Article III shall not have been
consummated prior to the Distribution Date, the parties shall cooperate to
effect such transfers as promptly following the Distribution Date as shall be
practicable, it nonetheless being agreed and understood by all the parties that
no party shall be liable in any manner to any other party for any failure of any
of the transfers contemplated by this Article III to be consummated prior to the
Distribution Date. Subject to the provisions of Section 2.03, nothing herein
shall be deemed to require the transfer of any assets or the assumption of any
Liabilities which by their terms or operation of law cannot be transferred or
assumed; provided, however, that the Company and Marcam Solutions shall, and
shall cause their respective Subsidiaries to, cooperate to seek to obtain any
necessary consents or approvals for the transfer of all assets and Liabilities
contemplated to be transferred pursuant to this Article III. In the event that
any such transfer of assets (other than capital stock of corporations to be
transferred hereunder) or Liabilities has not been consummated, effective as of
and after the Cut-off Date, the party retaining such asset or Liability shall
thereafter hold such asset for the party entitled thereto (at the expense of the
party entitled thereto) and retain such Liability for the account of the party
by whom such Liability is to be assumed, and take such other action as may be
reasonably requested by the party to whom such asset is to be transferred, or by
whom such Liability is to be assumed, as the case may be, in order to place such
party, insofar as reasonably possible, in the same position as would have
existed and such asset or Liability been transferred as of the Cut-off Date. As
and when any such asset or Liability becomes transferable, such transfer shall
be effected forthwith. The parties agree that, as of the Cut-off Date, each
party hereto shall be deemed to have assumed in accordance with the terms of
this Agreement and the Ancillary Agreements all of the Liabilities, and all
duties, obligations and responsibilities incident thereto, which such party is
required to assume pursuant to the terms hereof and thereof.
Section 3.08 Enforcement of Marcam Solutions Employee Agreements. As
part of the transactions contemplated by and pursuant to Section 3.01, the
Company has agreed (and has agreed to cause its Subsidiaries to) assign all of
its or their rights in, to and under the Marcam Solutions Employee Agreements to
Marcam Solutions. The Company and MAPICS shall (and shall cause their
Subsidiaries to) (a) not waive any rights or conditions with respect to any
Marcam Solutions Employee Agreement without the prior written consent of Marcam
Solutions, and (b) if requested by Marcam Solutions and at the expense of Marcam
Solutions, (i) take all actions reasonably calculated to prevent any breach of
any Marcam Solutions Employee Agreement, and (ii) execute and deliver such
documents and instruments and perform such acts as may be necessary, appropriate
or desirable, in Marcam Solutions' sole discretion, for the enforcement of any
rights under any Marcam Solutions Employee Agreement with respect to the Marcam
Solutions Assets and/or the Marcam Solutions Business, including, but not
limited to, the commencement and maintenance of any actions, suits or other
legal proceedings and the discovery and presentation of evidence relevant
thereto.
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Section 3.09 Trade Secrets. MAPICS shall (and shall cause the MAPICS
Subsidiaries to) (a) maintain all trade secrets and confidential business
information transferred to Marcam Solutions pursuant to Section 3.01 of this
Agreement as a trade secret and (b) not disclose to any Person, use for any
purpose or permit any Person to disclose or use for any purpose such transferred
trade secrets and confidential business information.
ARTICLE IV
EMPLOYEE MATTERS AND BENEFITS
Section 4.01 Employment. Not later than the Distribution Date,
the Company and Marcam Solutions shall cause all of the Transferred Employees to
become employees of Marcam Solutions and/or the Marcam Solutions Subsidiaries.
All employees who will remain employees of the Company following the
Distribution Date will be identified in writing by the Company to, and confirmed
by, Marcam Solutions prior to the Distribution Date. On or before the
Distribution Date, Marcam Solutions shall employ each Transferred Employee at an
annual compensation rate not less than such Transferred Employee's current
annual compensation rate with the Company. Marcam Solutions shall continue the
status of a Transferred Employee on leave of absence or short or long term
disability leave and shall recall, reinstate and/or terminate the employment of
such Transferred Employee in accordance with the Company's policies applicable
to the Transferred Employee that are in effect when the Transferred Employee's
leave of absence began. Notwithstanding the foregoing, nothing in this Article
IV shall limit the ability or right of Marcam Solutions to terminate any
Transferred Employee's employment after the Distribution Date. Marcam Solutions
shall have the right to alter the pay and terms and conditions of any aspect of
employment of any Transferred Employee after the Distribution Date.
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Section 4.02 Qualified Retirement and Benefit Plans
(a) Marcam Solutions shall (i) establish, effective as of
August 1, 1997, a 401(k) retirement plan (the "Marcam Solutions 401(k) Plan")
and (ii) establish, on or before August 1, 1997, a trust under the Marcam
Solutions 401(k) Plan intended to qualify under Section 501(a) of the Code. The
Marcam Solutions 401(k) Plan shall relate and apply to compensation paid on or
after August 1, 1997.
(b) As soon as possible after August 1, 1997, the Company
shall direct the trustee of the Marcam 401(k) Plan (the "Marcam 401(k) Plan") to
transfer (the "401(k) Transfer") from the trust established thereunder to the
trust under the Marcam Solutions 401(k) Plan, an amount (in the form determined
by the Company) equal to the sum of the account balances (including Liabilities
associated with outstanding participant loans) of each Transferred Employee
computed as of the most recent valuation date (as defined in the Marcam 401(k)
Plan) preceding the date of transfer (the "401(k) Transfer Date"). After the
401(k) Transfer, each Transferred Employee shall have an account under the
Marcam Solutions 401(k) Plan of equivalent balance and vested percentage as
under the Marcam 401(k) Plan.
(c) Effective as of the 401(k) Transfer Date, Marcam Solutions
and the Marcam Solutions 401(k) Plan shall assume and become solely responsible
for the satisfaction of all Liabilities under the Marcam Solutions 401(k) Plan
in respect of the Transferred Employees, and the Company and the Marcam 401(k)
Plan shall be relieved of and shall cease to have any responsibility for the
satisfaction of such Liabilities, other than for any reconciliations required
after the 401(k) Transfer Date.
(d) Effective as of July 25, 1997, the Company shall amend
the Marcam 401(k) Plan to provide that no contributions shall be allocated with
respect to a Transferred Employee under the Marcam 401(k) Plan with respect to
any period commencing on or after July 25, 1997, and no forfeitures shall be
allocated after July 25, 1997 with respect to a Transferred Employee under the
Marcam 401(k) Plan. The Company and Marcam Solutions
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agree that the transfer of the Transferred Employees shall not constitute an
event entitling any such Transferred Employee to a distribution from the
Marcam 401(k) Plan.
(e) The Marcam Solutions 401(k) Plan shall provide, effective
as of August 1, 1997, that Transferred Employees shall (i) immediately upon
their becoming employees of Marcam Solutions (or August 1, 1997, if later)
become eligible to participate in the Marcam Solutions 401(k) Plan, and (ii) for
all purposes (including vesting, eligibility for benefits and benefit
determination) receive credit for all service credited for such purposes under
the Marcam 401(k) Plan as of August 1, 1997 as if the service had been rendered
to Marcam Solutions.
(f) The Company and Marcam Solutions shall provide each other
such records and information as may be necessary or appropriate to carry out
their obligations under this Section 4.02 or for the purposes of administration
of the Company's plans and the Marcam Solutions plans, and they shall cooperate
in the filing of documents required by the transfer of assets and liabilities
described herein.
Section 4.03 Welfare Plans.
(a) Marcam Solutions agrees that:
(i) it shall assume and be solely responsible for all
liabilities and obligations whatsoever of the Company (other than liabilities or
obligations funded through insurance or otherwise, the proceeds of which are
paid to the Company or to the Marcam Solutions Employee in satisfaction of the
liability or obligation) in connection with claims for benefits or compensation
(including, but not limited to wages, commissions, bonuses and employment and
withholding taxes) by or in respect of Marcam Solutions Employees and their
dependents, including severance pay, sick pay, vacation pay, health, life,
dental, disability and other welfare benefits, workers' compensation,
unemployment compensation, fringe benefits and other legally required employee
benefits programs maintained by the Company that is in each case earned, accrued
or incurred but not yet paid prior to the Distribution Date (whether known or
unknown), and all such amounts arising thereafter and the Company shall cease to
have any such liability or obligation. Marcam Solutions shall have no liability
for any employee of the Company other than a Marcam Solutions Employee. With
respect to disability benefits, Marcam Solutions shall assume and be solely
responsible for all disability payments with respect to Transferred Employees
(including Transferred Employees who are on short- or long-term disability
absences on or prior to the Distribution Date) payable on or after the
Distribution Date;
(ii) it shall assume and be solely responsible for all
liabilities and obligations whatsoever of the Company in connection with the
Company vacation plan for the unused vacation benefits of all Transferred
Employees as of the Distribution Date, and shall adopt a vacation plan
substantially similar to the Company's current vacation plan as of the
Distribution Date; and
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(iii) it shall reimburse the Company on at least a quarterly
basis for the Company's net costs (excluding internal administration costs)
arising from the Company's payments of workers' compensation benefits and
liabilities on or after the Distribution Date payable to or with respect to
Marcam Solutions Employees for whom the Company has an obligation to make such
payments after the Distribution Date and for which the Company has not received
any reimbursement either from Marcam Solutions or from insurance. In calculating
the amounts due the Company in any period in respect of the Company's payments
of benefits or liabilities with respect to Transferred Employees, the parties
shall obtain from the insurer(s) managing such programs an accounting showing
the benefits and liabilities in respect of each Transferred Employee that is the
subject such benefits and liabilities.
(b) Marcam Solutions further agrees that it shall take, or cause
to be taken all action necessary and appropriate:
(i) to establish, effective for a period commencing on or
before the Distribution Date and continuing until at least December 31, 1997,
for the benefit of Transferred Employees while such employees are employed by
Marcam Solutions, employee welfare benefit plans substantially similar to those
welfare benefit plans covering employees of the Company immediately prior to the
Distribution Date. Marcam Solutions shall recognize all employment service and
earnings of a Transferred Employee recognized by the Company as employment
service and earnings of Marcam Solutions for purposes of applying the provisions
of any Marcam Solutions welfare benefit plan or similar program, including any
vacation plan or program, where the Transferred Employee's benefits thereunder
are a function of the employee's service or earnings or a combination thereof;
(ii) on or before the Distribution Date, to adopt as a
successor employer, the Marcam Solutions Flexible Benefit Plan, which shall have
the same terms and conditions as the Marcam Flexible Benefits Plan, including
the health care reimbursement account and dependent daycare reimbursement
account covering the Transferred Employees, as if such Transferred Employees'
employment with Marcam Solutions was a continuation of their employment with the
Company. All liabilities relating to the Transferred Employees' rights and
benefits described in this clause (ii) shall be assumed by Marcam Solutions as
of the Distribution Date, and the Company shall cease to have any such liability
or obligation therefor. As soon as practicable following the date that the
required data is available, the Company shall transfer to Marcam Solutions the
aggregate net amounts credited to the health care reimbursement and dependent
care reimbursement account of the Transferred Employees accounts as of the
Distribution Date. Marcam Solutions shall also adopt a dependent care
reimbursement plan and medical expense reimbursement plan identical to that
offered by the Company and covering Transferred Employees as if such Transferred
Employees' employment was a continuation of their employment with the Company.
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(iii) to provide the benefit coverage otherwise necessary to
assume the liabilities and obligations that are or shall become the
responsibility of Marcam Solutions under this Section 4.03; and
(iv) to make legally required contributions or payments
pursuant to any law providing for workers' compensation, unemployment
compensation, disability benefits or other legally required employee benefit
programs with respect to Transferred Employees, and to retain any accounts or
reserves relative to such benefits held solely by Marcam Solutions for such
Transferred Employees.
In connection with the foregoing, the Company agrees to provide Marcam Solutions
or its designated insurance representatives with such information as may be
reasonably requested by Marcam Solutions and necessary for Marcam Solutions to
assume, establish or maintain such plans, funding arrangements, and benefit
coverage.
Section 4.04 Assumption of COBRA Obligations. Effective as of the
Distribution Date, Marcam Solutions shall assume and the Company shall have no
further obligation or liability for any requirements under the Consolidated
Omnibus Budget Reconciliation Act of 1985 ("COBRA") to provide continuation of
health care coverage to any Transferred Employee or "qualified beneficiary" (as
defined in COBRA) of a Transferred Employee who loses coverage as a result of a
"qualifying event" (as defined in COBRA) that occurs after the Distribution
Date.
Section 4.05 Other Liabilities and Obligations. As of the Distribution
Date, Marcam Solutions shall assume and be solely responsible for all
liabilities and obligations whatsoever of the Marcam Solutions Employees with
respect to claims made by or with respect to Marcam Solutions Employees or their
dependents, beneficiaries or assigns, relating to their employment with or
termination from the Marcam Solutions Business or the Company not otherwise
provided for in this Agreement, including, without limitation,
employment-related claims and other termination benefits (but not including
liabilities or obligations funded through insurance or otherwise, the proceeds
of which are paid to the Company or to the Marcam Solutions Employee in
satisfaction of the liability or obligation).
Section 4.06 Preservation of Rights to Amend or Terminate Plans. No
provisions of this Agreement, including, without limitation, the agreement of
Company or Marcam Solutions that it will make a contribution or payment to or
under any plan referred to herein for any period, shall be construed as a
limitation on the right of the Company or Marcam Solutions to amend such plan or
terminate its participation therein which the Company or Marcam Solutions would
otherwise have under the terms of such plan or otherwise; provided, however,
that no amendment shall reduce or eliminate (i) the Transferred Employees'
unused account balances under the Flexible Benefits Program required to be
adopted pursuant to Section 4.03(b)(ii) hereof; or (ii) the Transferred
Employees' unused vacation benefits as of the Distribution Date.
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Section 4.07 Reimbursement; Indemnification. Marcam Solutions and the
Company acknowledge that each may incur costs and expenses (including, without
limitation, contributions to plans and the payment of insurance premiums)
pursuant to any of the employee benefit or compensation plans, program or
arrangements, which are, as set forth in this Agreement, the responsibility of
the other party. Accordingly, Marcam Solutions and the Company agree to
reimburse each other, as soon as practicable but in any event within 30 days of
receipt from the other party of appropriate verification, for all such costs and
expenses, as the case may be, as an Indemnitee in respect of the corresponding
payment made by it, except to the extent that any such payment or reimbursement
would be duplicative.
Section 4.08 Limitation on Enforcement. This Article IV is an agreement
solely between Marcam Solutions and the Company. Nothing in this Agreement or
any Ancillary Agreement, whether express or implied, confers upon any employee
of Marcam Solutions or the Company, any Transferred Employee, any former
employee of Marcam Solutions, any beneficiary of a Transferred Employee or
former employee of Marcam Solutions or any other person, any rights or remedies,
including, but not limited to (i) any right to employment or recall, (ii) any
right to continued employment for any specified period or (iii) any right to
claim any particular compensation, benefit or aggregation of benefits, of any
kind or nature whatsoever, as a result of this Article IV.
Section 4.09 Employment Following the Distribution Date. For a period
of 12 months following the Distribution Date, neither MAPICS nor any MAPICS
subsidiary shall employ any Transferred Employee that is employed by Marcam
Solutions or any Marcam Solutions Subsidiary as of the Distribution Date without
the prior written consent of Marcam Solutions' Chief Executive Officer. For a
period of 12 months following the Distribution Date, neither Marcam Solutions
nor any Marcam Solutions Subsidiary shall hire any person that is employed by
MAPICS or any MAPICS Subsidiary as of the Distribution Date without the prior
written consent of MAPICS' Chief Executive Officer.
Section 4.10 July 31, 1997 Payroll. Notwithstanding anything to the
contrary in this Agreement:
(a) Marcam Solutions shall be responsible for all salary and
other compensation, including any matching contributions to be made in
accordance with the terms of the Marcam 401(k) Plan, accrued during the payroll
period ending on July 25, 1997, with respect to the Transferred Employees;
(b) At Marcam Solutions' request and expense, MAPICS shall pay
such salary and other compensation, and Marcam Solutions shall provide MAPICS
with the funds necessary to make such payments prior to the time such payments
are due;
(c) Any amounts deducted from a Transferred Employee's salary
or other compensation accrued during the payroll period ending on July 25, 1997
for purposes of making a contribution to a 401(k) plan or
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other benefit plan shall be paid into appropriate accounts for such Transferred
Employee maintained by MAPICS, and shall subsequently be transferred as
contemplated by this Agreement; and
(d) Any amounts withheld from a Transferred Employee's salary
or other compensation accrued during the payroll period ending on July 25, 1997
for Tax purposes shall be paid to the appropriate Tax authorities in accordance
with applicable law and the instructions of Marcam Solutions.
ARTICLE V
INDEMNIFICATION
Section 5.01 Indemnification by MAPICS. Except with respect to claims
for proceeds of Policies or other amounts received, which shall be governed by
Section 3.06, and except as set forth in Section 5.03, MAPICS shall indemnify,
defend and hold harmless Marcam Solutions, each Affiliate of Marcam Solutions
and each of their respective directors, officers, employees and agents and each
of the heirs, executors, successors and assigns of any of the foregoing
(collectively, the "Marcam Solutions Indemnitees") from and against any and all
Losses relating to, resulting from or arising out of:
(a) the MAPICS Liabilities or any failure or alleged failure
of MAPICS or any of its Affiliates to pay, perform or otherwise discharge in
due course any of the MAPICS Liabilities;
(b) the MAPICS Assets or the MAPICS Business, whether any such
Losses relate to events, occurrences or circumstances occurring or existing, or
whether any such Losses are asserted, before, on or after the Distribution Date;
(c) the failure or alleged failure by the Company, MAPICS or
any MAPICS Subsidiary to perform any of their obligations or covenants set forth
in this Agreement or the Ancillary Agreements or any agreement, instrument,
certificate or other writing delivered pursuant hereto or thereto or in
connection herewith or therewith or otherwise in connection with the
Distribution or the Proposed MAPICS Public Offering;
(d) any untrue statement or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact required
to be stated therein or necessary to make the statements therein not misleading,
with respect to the information set forth in the information statement included
in the Form 10, Proxy Statement/Prospectus or Form S-4 or any amendments or
supplements thereto and any other written documents disclosing information
regarding MAPICS or any of its Affiliates and filed with the Commission and/or
generally made available to the Company's stockholders; or
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(e) any acts or omissions, or the provision of any incorrect
factual information by, the Company, MAPICS or any Company Subsidiary or MAPICS
Subsidiary prior to, on or following the Distribution Date relating to the
request for the Tax Ruling or relating to the rendering of the Tax Opinions that
causes the Distribution to be taxable (other than as described in the Tax
Ruling, the Tax Opinions and the Form S-4) to Marcam Solutions or any of its
Affiliates or its stockholders.
Except for the indemnification for Losses set forth in Section 5.01(e),
notwithstanding anything in this Section 5.01 to the contrary, neither MAPICS
nor any MAPICS Subsidiary shall have any liability whatsoever to either Marcam
Solutions or any Marcam Solutions Subsidiary in respect of any Tax, except as
otherwise provided in the Tax Sharing Agreement.
Section 5.02 Indemnification by Marcam Solutions. Except with respect
to claims for proceeds of Policies or other amounts received, which shall be
governed by Section 3.06, and except as set forth in Section 5.03, Marcam
Solutions shall indemnify, defend and hold harmless MAPICS, each Affiliate of
MAPICS and each of their respective directors, officers, employees and agents
and each of the heirs, executors, successors and assigns of any of the foregoing
(collectively, the "MAPICS Indemnitees") from and against any and all Losses
relating, resulting from or arising out of:
(a) the Marcam Solutions Liabilities or any failure or alleged
failure of Marcam Solutions or any of its Affiliates to pay, perform or
otherwise discharge in due course any of the Marcam Solutions Liabilities;
(b) the Marcam Solutions Assets or the Marcam Solutions
Business, whether any such Losses relate to events, occurrences or circumstances
occurring or existing, or whether any such Losses are asserted, before, on or
after the Distribution Date;
(c) the failure or alleged failure by Marcam Solutions or any
Marcam Solutions Subsidiary to perform any of their obligations or covenants set
forth in this Agreement or the Ancillary Agreements or any agreement,
instrument, certificate or other writing delivered pursuant hereto or thereto or
in connection herewith or therewith or otherwise in connection with the
Distribution or the Proposed MAPICS Public Offering;
(d) any untrue statement or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact required
to be stated therein or necessary to make the statements therein not misleading,
with respect to all information set forth in the information statement included
in the Form 10, Proxy Statement/Prospectus or Form S-4 or any amendments or
supplements thereto and any other written documents disclosing information other
than that regarding MAPICS or any or its Affiliates and filed with the
Commission and/or generally made available to the Company's stockholders; or
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(e) any acts or omissions, or the provision of any incorrect
factual information by, Marcam Solutions or any Marcam Solutions Subsidiary
prior to the Distribution Date relating to the request for the Tax Ruling or
relating to the rendering of the Tax Opinions that causes the Distribution to be
taxable (other than as described in the Tax Ruling, the Tax Opinions and the
Form S-4) to MAPICS or any of its Affiliates or its stockholders.
For purposes of Section 5.02(e) only, the term "Loss" shall mean only Taxes
imposed upon MAPICS under the Code (or corresponding provisions of state or
local tax law) if, as a result of such acts, omissions or the provision of
incorrect factual information, the Distribution does not result in the
nonrecognition of gain to the Company under Section 361(c)(1) of the Code (it
being understood that the Company will recognize gain under Section 367(e) of
the Code to the extent that Marcam Solutions Common Stock is distributed to
persons other that "United States persons" and may recognize gain in connection
with certain aspects of the Distribution, including the distribution of the
Marcam Solutions Warrants and certain restructuring transactions undertaken in
connection with the Distribution). Further, except for the indemnification for
Losses set forth in Section 5.02(e), notwithstanding anything in this Section
5.02 to the contrary, neither Marcam Solutions nor any Marcam Solutions
Subsidiary shall have any liability whatsoever to either MAPICS or any MAPICS
Subsidiary in respect of any Tax, except as otherwise provided in the Tax
Sharing Agreement.
Section 5.03 Limitations on Indemnification Obligations.
(a) The amount which Marcam Solutions or MAPICS (each, an
"Indemnifying Party") is or may be required to pay to MAPICS Indemnitees or
Marcam Solutions Indemnitees, respectively (each, an "Indemnitee"), pursuant to
Section 5.01 or Section 5.02 shall be reduced (including, without limitation,
retroactively) by any proceeds of Policies actually recovered by or on behalf of
such Indemnitee, in reduction of the related Loss that is the subject of
indemnification under Section 5.01 or 5.02. If an Indemnitee shall have received
the payment (an "Indemnity Payment") required by this Agreement from an
Indemnifying Party in respect of any Loss and shall subsequently actually
receive proceeds of Policies or other amounts in respect of such Loss, then such
Indemnitee shall pay, to such Indemnifying Party a sum equal to the amount
actually received (up to but not in excess of the amount of any Indemnity
Payment made hereunder). An insurer who would otherwise be obligated to pay any
claim shall not be relieved of the responsibility with respect thereto, or
solely by virtue of the indemnification provisions hereof, have any subrogation
rights with respect thereto, it being expressly understood and agreed that no
insurer or any other third party shall be entitled to any benefit they would not
be entitled to receive in the absence of this Article V by virtue of the
indemnification provisions hereof.
(b) If any Indemnitee realizes a Tax benefit or detriment in
one or more Tax periods by reason of having incurred a Loss for which such
Indemnitee receives an Indemnity Payment from an Indemnifying Party, then such
Indemnitee shall pay to such Indemnifying Party
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an amount equal to the Tax benefit or such Indemnifying Party shall pay to such
Indemnitee an additional amount equal to the Tax detriment (taking into account
any Tax detriment resulting from the receipt of such additional amounts), as the
case may be. The amount of any Tax benefit or any Tax detriment for a Tax period
realized by an Indemnitee by reason of having incurred such Loss shall be deemed
to equal the product obtained by multiplying (i) the amount of any deduction or
inclusion in income for such period resulting from such Loss or the payment
thereof, as the case may be, by (ii) the highest applicable marginal Tax rate
for such period (provided, however, that the amount of any Tax benefit
attributable to an amount that is creditable shall be deemed to equal the amount
of such creditable item). Any payment due under this Section 5.03(b) with
respect to a Tax benefit or Tax detriment realized by an Indemnitee in a Tax
period shall be due and payable within 30 days from the time the return for such
Tax period is due, without taking into account any extension of time granted to
the party filing such return.
(c) In the event that an Indemnity Payment shall be
denominated in a currency other than United States dollars, the amount of such
payment shall be translated into United States dollars using the Foreign
Exchange Rate for such currency determined as of the date that notice of the
claim with respect to such loss shall be given to the Indemnitee.
Section 5.04 Procedures for Indemnification.
(a) Procedures for Indemnification of Third Party Claims
(as defined below) shall be as follows:
(i) If an Indemnitee shall receive notice or
otherwise learn of the assertion by any Person who is not a party to this
Agreement (or an Affiliate thereof) or to any Ancillary Agreement of a claim or
of the commencement by any such Person of any Action (a "Third Party Claim")
with respect to which an Indemnifying Party may be obligated to provide
indemnification pursuant to Section 5.01, Section 5.02, or any other Section of
this Agreement, such Indemnitee shall give such Indemnifying Party written
notice thereof promptly after becoming aware of such Third Party Claim; provided
that the failure of any Indemnitee to give notice as provided in this Section
5.04(a)(i) shall not relieve the related Indemnifying Party of its obligations
under this Article V, except where and solely to the extent that such
Indemnifying Party is actually and materially prejudiced by such failure to give
notice. Such notice shall describe the Third Party Claim in reasonable detail
and, if ascertainable, shall indicate the amount (estimated if necessary) of the
Loss that has been or may be sustained by such Indemnitee.
(ii) An Indemnifying Party may elect to defend or to
seek to settle or compromise, at such Indemnifying Party's own expense and by
such Indemnifying Party's own counsel, any Third Party Claim. Within 30 days of
the receipt of notice from an Indemnitee in accordance with Section 5.04(a)(i)
(or sooner, if the nature of such Third Party Claim so requires), the
Indemnifying Party shall notify the Indemnitee of its election whether the
Indemnifying Party will assume responsibility for defending such Third Party
Claim, which
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election shall specify any reservations or exceptions. After notice from an
Indemnifying Party to an Indemnitee of its election to assume the defense of a
Third Party Claim, such Indemnifying Party shall not be liable to such
Indemnitee under this Article V for any legal or other expenses (except expenses
approved in advance in writing by the Indemnifying Party) subsequently incurred
by such Indemnitee in connection with the defense thereof; provided that, if the
defendants in any such claim include both the Indemnifying Party and one or more
Indemnitees and, in any Indemnitee's reasonable judgment, a conflict of interest
between one or more of such Indemnitees and such Indemnifying Party exists in
respect of such claim or if the Indemnifying Party shall have assumed
responsibility for such claim with any reservations or exceptions, such
Indemnitees shall have the right to employ separate counsel to represent such
Indemnitees and, in that event, the reasonable fees and expenses of such
separate counsel (but not more than one separate counsel reasonably satisfactory
to the Indemnifying Party) shall be paid by such Indemnifying Party. If an
Indemnifying Party elects not to assume responsibility for defending a Third
Party Claim or fails to notify an Indemnitee of its election as provided in this
Section 5.04(a)(ii), such Indemnitee may defend or (subject to the remainder of
this Section 5.04(a)(ii)) seek to compromise or settle such Third Party Claim.
Notwithstanding the foregoing, neither an Indemnifying Party nor an Indemnitee
may settle or compromise any claim over the objection of the other; provided,
however, that consent to settlement or compromise shall not be unreasonably
withheld. Neither an Indemnifying Party nor an Indemnitee shall consent to entry
of any judgment or enter into any settlement of any Third Party Claim which does
not include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnitee, in the case of a consent or settlement by an
Indemnifying Party, or to the Indemnifying Party, in the case of a consent or
settlement by the Indemnitee, a written release from all liability in respect to
such Third Party Claim.
(iii) If an Indemnifying Party chooses to defend or
to seek to compromise or settle any Third Party Claim, the related Indemnitee
shall make available to such Indemnifying Party any personnel or any books,
records or other documents within its control or which it otherwise has the
ability to make available that are necessary or appropriate for such defense,
settlement or compromise, and shall otherwise cooperate in the defense,
settlement or compromise of such Third Party Claims, subject to the
establishment of appropriate confidentiality arrangements which are reasonably
satisfactory to MAPICS and Marcam Solutions.
(iv) Notwithstanding anything else in this Section
5.04 to the contrary, if an Indemnifying Party notifies the related Indemnitee
in writing of such Indemnifying Party's desire to settle or compromise a Third
Party Claim on the basis set forth in such notice (provided that such settlement
or compromise includes as an unconditional term thereof the giving by the
claimant or plaintiff of a written release of the Indemnitee from all liability
in respect thereof) and the Indemnitee shall notify the Indemnifying Party in
writing that such Indemnitee declines to accept any such settlement or
compromise, such Indemnitee may continue to contest such Third Party Claim, free
of any participation by such Indemnifying Party, at such Indemnitee's sole
expense. In such event, the obligation of such Indemnifying Party to such
Indemnitee with
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respect to such Third Party Claim shall be equal to (i) the costs and expenses
of such Indemnitee prior to the date such Indemnifying Party notifies such
Indemnitee of the offer to settle or compromise to the extent such costs and
expenses are otherwise indemnifiable hereunder, plus (ii) the lesser of (A) the
amount of any offer of settlement or compromise which such Indemnitee declined
to accept and (B) the actual out-of-pocket amount such Indemnitee is obligated
to pay subsequent to such date as a result of such Indemnitee's continuing to
pursue such Third Party Claim.
(b) Any claim on account of a Loss which does not result from
a Third Party Claim shall be asserted by written notice given by the Indemnitee
to the related Indemnifying Party. Such Indemnifying Party shall have a period
of 30 days after the receipt of such notice within which to respond thereto. If
such Indemnifying Party does not respond within such 30-day period, such
Indemnifying Party shall be deemed to have refused to accept responsibility to
make payment. If such Indemnifying Party does not respond within such 30-day
period or rejects such claim, in whole or in part, such Indemnitee shall be free
to pursue such remedies as may be available to such party under this Agreement
or under applicable law.
(c) In addition to any adjustments required pursuant to
Section 5.03, if the amount of any Loss shall, at any time subsequent to the
payment required by this Agreement, be reduced by recovery, settlement or
otherwise, the amount of such reduction, less any expenses incurred in
connection therewith, shall promptly be repaid by the Indemnitee to the
Indemnifying Party.
(d) In the event of payment by an Indemnifying Party to any
Indemnitee in connection with any Third Party Claim, such Indemnifying Party
shall be subrogated to and shall stand in the place of such Indemnitee as to any
events or circumstances in respect of which such Indemnitee may have any right
or claim relating to such Third Party Claim against any claimant or plaintiff
asserting such Third Party Claim or against any other Person. Such Indemnitee
shall cooperate with such Indemnifying Party in a reasonable manner and, at the
cost and expense of such Indemnifying Party, in prosecuting any subrogated right
or claim.
Section 5.05 Remedies Cumulative. The remedies provided in this Article
V shall be cumulative and shall not preclude assertion by any Indemnitee of any
other rights or the seeking of any and all other remedies against any
Indemnifying Party.
Section 5.06 Survival of Indemnities. The obligations of each of MAPICS
and Marcam Solutions under this Article V shall survive the sale or other
transfer by it of any assets or businesses or the assignment by it of any
Liabilities, with respect to any Loss of the other related to such assets,
businesses or Liabilities.
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ARTICLE VI
ACCESS TO INFORMATION
Section 6.01 Provision of Corporate Records.
(a) MAPICS shall arrange as soon as practicable following the
Distribution Date for the delivery at Marcam Solutions' cost to Marcam Solutions
of existing corporate records in its possession relating to the Marcam Solutions
Business, including original corporate minute books, stock ledgers and
certificates and corporate seals of each Marcam Solutions Subsidiary, and all
licenses, leases, agreements, litigation files and filings with federal, state,
local or foreign governments or governmental or regulatory agencies or
authorities, except to the extent such items are already in the possession of
Marcam Solutions or a Marcam Solutions Subsidiary or on premises included in the
Marcam Solutions Assets. Such records shall be the property of Marcam Solutions,
but shall be available to MAPICS for review and duplication until MAPICS shall
notify Marcam Solutions in writing that such records are no longer of use to
MAPICS. MAPICS may also retain copies of any of such records relating to Actions
commenced against MAPICS and its Affiliates.
(b) Marcam Solutions shall arrange as soon as practicable
following the Distribution Date for the delivery at MAPICS' cost to MAPICS of
existing corporate records in its possession (if any) relating to the MAPICS
Business, including original corporate minute books, stock ledgers and
certificates and corporate seals of each MAPICS Subsidiary, and all licenses,
leases, agreements, litigation files and filings with federal, state, local or
foreign governments or governmental or regulatory agencies or authorities,
except to the extent such items are already in the possession of MAPICS or a
MAPICS Subsidiary or on premises included in the MAPICS Assets. Such records
shall be the property of MAPICS, but shall be available to Marcam Solutions for
review and duplication until Marcam Solutions shall notify MAPICS writing that
such records are no longer of use to Marcam Solutions. Marcam Solutions may also
retain copies of any of such records relating to Actions commenced against
Marcam Solutions and its Affiliates.
(c) The originals of any documents containing information with
respect to the Company and its Subsidiaries on a consolidated basis (including
accounting, tax and financial records) shall be retained by MAPICS. Copies of
any such documents shall be delivered to Marcam Solutions in accordance with
Section 6.01 hereof. Costs of duplicating such documents shall be allocated 50%
to Marcam Solutions and 50% to MAPICS.
Section 6.02 Access to Information. From and after the Distribution
Date, MAPICS shall afford to Marcam Solutions and its Representatives reasonable
access (including using reasonable efforts to give access to Persons or firms
possessing information) and duplicating rights during normal business hours to
all records, books, contracts, instruments, computer data and other data and
information (collectively, "Information") within MAPICS' possession or in the
possession of a MAPICS Subsidiary relating to Marcam Solutions, any Marcam
Solutions
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Subsidiary, any Marcam Solutions Asset or the Marcam Solutions Business insofar
as such access is reasonably required by Marcam Solutions or any Marcam
Solutions Subsidiary. Similarly, Marcam Solutions shall afford to MAPICS and its
Representatives reasonable access (including using reasonable efforts to give
access to Persons or firms possessing Information) and duplicating rights during
normal business hours to Information within Marcam Solutions' possession
relating to MAPICS or any MAPICS Subsidiary and insofar as such access is
reasonably required by MAPICS or any MAPICS Subsidiary. Information may be
requested under this Article VI for, without limitation, audit, accounting,
claims, litigation and tax purposes, as well as for purposes of fulfilling
disclosure and reporting obligations and for performing this Agreement and the
transactions contemplated hereby.
Section 6.03 Retention of Records. Except as otherwise required by law
or agreed to in writing, each of MAPICS and Marcam Solutions shall, and shall
cause each of their respective Subsidiaries to, retain for a period of at least
ten years following the Distribution Date, all significant Information relating
to the business of the other and the other's Subsidiaries. In addition, after
the expiration of such ten-year period, such Information shall not be destroyed
or otherwise disposed of at any time, unless, prior to such destruction or
disposal, (a) the party proposing to destroy or otherwise dispose of such
Information shall provide no less than 30 days' prior written notice to the
other, specifying in reasonable detail the Information proposed to be destroyed
or disposed of, and (b) if a recipient of such notice shall request in writing
prior to the scheduled date for such destruction or disposal that any of the
Information proposed to be destroyed or disposed of be delivered to such
requesting party, the party proposing the destruction or disposal shall promptly
arrange for the delivery of such of the Information as was requested at the
expense of the party requesting such Information.
Section 6.04 Reimbursement. Except to the extent otherwise contemplated
by any Ancillary Agreement, a party providing Information to the other party
under this Article VI shall be entitled to receive from the recipient, upon the
presentation of invoices therefor, payments for such amounts, relating to
supplies, disbursements and other direct out-of-pocket expenses as may be
reasonably incurred in providing such Information.
Section 6.05 Production of Witnesses. After the Distribution Date, each
of MAPICS and Marcam Solutions shall, and shall cause their respective
Subsidiaries to, use reasonable efforts to make available to the other party and
its Subsidiaries, upon written request, its directors, officers, employees and
agents as witnesses to the extent that any such Person may reasonably be
required (giving consideration to business demands of such Persons) in
connection with any legal, administrative or other proceedings in which the
requesting party may from time to time be involved.
Section 6.06 Confidentiality. Each of MAPICS and Marcam Solutions
shall, and shall cause each of their respective Subsidiaries and Representatives
to, hold, in strict confidence, all material Information concerning the other in
its possession or furnished by the other or the other's Representatives pursuant
to either this Agreement or any Ancillary Agreement (except to
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the extent that such Information has been (a) in the public domain through no
fault of such party or (b) later lawfully acquired from other sources by such
party), and each party shall not release or disclose such Information to any
other Person, except its Representatives, unless compelled to disclose by
judicial or administrative process or, as advised by its counsel, by other
requirements of law.
ARTICLE VII
MISCELLANEOUS
Section 7.01 Complete Agreement; Construction. This Agreement and the
Ancillary Agreements, including any schedules and exhibits hereto or thereto,
and other agreements and documents referred to herein and therein, shall
constitute the entire agreement between the parties with respect to the subject
matter hereof and shall supersede all previous negotiations, commitments and
writings with respect to such subject matter. Notwithstanding any other
provisions in this Agreement to the contrary, in the event and to the extent
that there shall be a conflict between the provisions of this Agreement and the
provisions of any Ancillary Agreement, the provisions of this Agreement shall
control.
Section 7.02 Survival of Agreements. Except as otherwise contemplated
by this Agreement, all covenants and agreements of the parties contained in this
Agreement shall survive the Distribution Date.
Section 7.03 Expenses. Except as provided in the Tax Sharing Agreement,
all fees and expenses for the Distribution will be recorded on the Company's
June 30, 1997 financial statements and shall be reflected on the financial
statements of Marcam Solutions following the Distribution Date. All fees and
expenses incurred by the Company and Marcam Solutions in connection with this
Agreement and the Ancillary Agreements and the transactions contemplated hereby
and thereby (including without limitation the fees and expenses of their
financial, legal and accounting advisers) will be borne by Marcam Solutions
(except as otherwise provided in Articles IV and V).
Section 7.04 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of Massachusetts,
without regard to the principles of conflicts of laws thereof.
Section 7.05 Notices. All notices, requests and other communications to
either party shall be in writing (including telecopy or similar electronic
transmissions), shall refer specifically to this Agreement and shall be
personally delivered or sent by telecopy or other electronic facsimile
transmission, by registered mail or certified mail, return receipt requested,
postage prepaid or by reliable overnight courier service, in each case, to the
respective addresses specified below (or to such address as may be specified in
writing by one party to the other). All
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notices shall be effective when received if delivered by hand or facsimile,
three (3) business days after mailing, if mailed, and one (1) business day after
delivery to a reliable overnight courier service.
If to the Company or MAPICS: MAPICS, Inc.
▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Chief Executive Officer
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to Marcam Solutions: Marcam Solutions, Inc.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Chief Executive Officer
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Section 7.06 Dispute Resolution. Each of MAPICS and Marcam Solutions
shall, and shall cause their respective Subsidiaries to, resolve any and all
disputes relating, resulting from or arising out of this Agreement, any
Ancillary Agreement, and any transactions relating thereto or contemplated
hereby or thereby in accordance with Sections 7.06 and 7.07. MAPICS and Marcam
Solutions shall each appoint two members from their managerial staffs to serve
on a joint committee (the "Dispute Resolution Committee"). The Dispute
Resolution Committee shall, within 10 days of receiving written notice from
either party of a dispute arising under or relating to this Agreement or any of
the Ancillary Agreements, meet at either MAPICS' offices or Marcam Solutions'
offices, whichever is more appropriate in light of the issue to be discussed, or
conduct a meeting by telephone conference at such time as either party may
reasonably request in writing, in an effort to resolve such dispute. If the
Dispute Resolution Committee is unable to resolve any dispute submitted to it by
any party hereto within 30 days after such submission, the Dispute Resolution
Committee shall refer the issue to the Chief Executive Officers of MAPICS and
Marcam Solutions for resolution. If such officers are unable to resolve such
dispute within fifteen days after referral, such dispute (other than a dispute
arising under this Agreement regarding, or in connection with, the ownership of
Proprietary Rights) shall be referred to binding arbitration as provided for in
Section 7.07. Except as provided in Section 7.07(e), no such dispute shall be
the subject of arbitration, judicial proceeding or other formal proceeding
between the parties hereto before being considered by the Dispute Resolution
Committee and the Chief Executive Officers of MAPICS and Marcam Solutions.
Section 7.07 Binding Arbitration. (a) Any controversy, dispute or claim
(whether lying in contract or tort) between or among the parties arising out of
or related to this Agreement or the Ancillary Agreements shall, after the
dispute resolution process set forth in Section 7.06 has been completed (other
than a dispute arising under this Agreement regarding, or in connection with,
the ownership of Proprietary Rights), be submitted to the Boston office of the
American Arbitration Association (the "AAA") for binding arbitration in
accordance with this Section 7.07.
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(b) Each such controversy, dispute or claim submitted by a
party to arbitration shall be heard by an arbitration panel composed of three
arbitrators, in accordance with the following provisions. MAPICS and Marcam
Solutions shall each appoint one arbitrator within fifteen days after the matter
has been submitted to arbitration. If any party fails to appoint its arbitrator
within such fifteen-day period, the opposing party may apply to the AAA to
appoint an arbitrator on behalf of the party that has failed to appoint its
arbitrator. The two arbitrators appointed by, or on behalf of, the parties shall
jointly appoint a third arbitrator, who shall chair the arbitration panel (the
"Chairman"). If the arbitrators appointed by, or on behalf of, the parties do
not succeed in appointing a Chairman within fifteen days after the latter of the
two arbitrators appointed by, or on behalf of, the parties has been appointed,
the Chairman shall, at the request of either party, be appointed by the AAA. If
for any reason an arbitrator is unable to perform his or her function, he or she
shall be replaced and a substitute shall be appointed in the same manner as the
arbitrator replaced.
(c) Except as otherwise stated herein, arbitration proceedings
shall be conducted in accordance with the Commercial Arbitration Rules of the
AAA. In any arbitration proceeding hereunder: (i) proceedings shall be held in
Boston, Massachusetts; (ii) the arbitration panel shall be bound by all statutes
of limitation which would otherwise be applicable in a judicial action brought
by a party; (iii) the arbitrators shall have full power to make such regulations
and to give such orders and directions in all respects, including with respect
to limited and appropriate discovery, as they shall deem expedient, as well in
respect to the matters and differences referred to them and the mode and times
of executing and performing any of the acts, deeds, matters, and things which
may be awarded or directed to be done; (iv) the arbitration panel shall have the
power to award monetary damages and to issue injunctive or other equitable
relief but shall not have the power to award punitive damages; and (v) the
decision of a majority of the arbitrators (or the Chairman if there is no such
majority) shall be final and binding on the parties to this Agreement and shall
be enforceable in any court of competent jurisdiction. The parties hereby waive
an rights to appeal or to review of such decision by any court or tribunal and
also waive any objections to such enforcement, except for appeals, reviews or
objections for fraud, perjury, evident partiality or misconduct by an arbitrator
prejudicing the rights of any party or to correct manifest clerical errors. THE
PARTIES HEREBY AGREE TO WAIVE ALL RIGHTS TO TRIAL BY JURY WITH RESPECT TO ANY
CONTROVERSY, DISPUTE OR CLAIM SUBMITTED TO ARBITRATION UNDER THIS AGREEMENT.
(d) Notice preliminary to, in conjunction with, or incident to
any arbitration proceeding may be sent to the parties by registered or certified
mail (return receipt requested) at the address set forth in Section 7.05 and
personal service is hereby waived. Each party shall bear its own costs and fees
incurred in connection with the arbitration and the proceedings of each disputed
matter, and the obtaining of any judgment related thereto (including attorney's
fees). Arbitrator's fees and expenses and court costs with respect to each
disputed matter shall be shared equally by the parties.
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(e) No provision of this Section 7.07 shall limit the right of
any party to this Agreement to exercise self-help remedies, such as set-off, or
to obtain provisional, equitable or ancillary remedies from a court of competent
jurisdiction before, after or during the pendency of any arbitration or other
proceeding. The exercise of a remedy does not waive the right of either party to
resort to arbitration.
Section 7.08 Amendments. The provisions of this Agreement may not be
amended or waived except, in the case of an amendment, by an agreement in
writing signed by the parties, and except, in the case of a waiver, by an
agreement in writing signed by the party against whom a waiver of enforcement is
sought.
Section 7.09 Successors and Assigns. The rights under this Agreement
may not be assigned and duties may not be delegated by any party without the
written consent of the other party, which consent shall not be unreasonably
withheld. This Agreement and all of the provisions hereof shall be binding upon
and inure to the benefit of the parties and their respective successors and
permitted assigns. In addition, as to each party hereto, (a) notwithstanding the
preceding sentence, this Agreement and all of the provisions hereof shall be
binding upon and inure to the benefit of such party and upon any Person that may
hereafter acquire, whether by purchase of assets, purchase of stock, merger,
consolidation, share exchange or other business combination, substantially all
of the business and assets of such party, and (b) this Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of any other
Person to whom the rights of such party may be specifically assigned in
accordance with the first sentence of this Section 7.09.
Section 7.10 Termination. This Agreement may be terminated and the
Distribution abandoned and related transactions and agreements at any time prior
to the Distribution Date by and in the sole discretion of the Company Board
without the approval of Marcam Solutions or of the Company's stockholders. In
the event of such termination, no party shall have any liability of any kind to
any other party on account of such termination.
Section 7.11 No Third Party Beneficiaries. Except for the provisions of
Article V relating to Marcam Solutions Indemnitees and MAPICS Indemnitees and
subsection 3.05(f) relating to directors and officers, this Agreement is solely
for the benefit of the parties hereto and their respective Affiliates and should
not be deemed to confer upon third parties (including any employee of MAPICS or
Marcam Solutions or of any MAPICS or Marcam Solutions Subsidiary) any remedy,
claim, reimbursement, claim of action or other right in excess of those existing
without reference to this Agreement.
Section 7.12 Titles and Headings. Titles and headings to sections
herein are inserted for convenience of reference only and are not intended to be
part of or to affect the meaning or interpretation of this Agreement.
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Section 7.13 Legal Enforceability. Any provision of this Agreement
which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof. Any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction. Without prejudice
to any rights or remedies otherwise available to any party hereto, each party
hereto acknowledges that damages would be an inadequate remedy for any breach of
the provisions of this Agreement and agrees that the obligations of the parties
hereunder shall be specifically enforceable.
Section 7.14 No Waivers. No failure by any party hereto to take any
action or assert any right hereunder shall be deemed to be a waiver of such
right in the event of the continuation or repetition of the circumstances giving
rise to such right, unless expressly waived in writing by the party against whom
the existence of such waiver is asserted.
Section 7.15 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Section 7.16 Performance. Each party hereto shall cause to be
performed, and hereby guarantees the performance of, all actions, agreements and
obligations set forth herein to be performed by any Subsidiary or Affiliate of
such party.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the day and year first above written.
MARCAM CORPORATION
By: ___________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President and Chief Executive Officer
MARCAM SOLUTIONS, INC.
By: ___________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President and Chief Executive Officer
Exhibit A
Form of General Services Agreement
Exhibit B
Form of Promissory Note
Exhibit C
Form of Tax Sharing Agreement
Schedule 1.01
MAPICS Retained Contracts
Loan and Security Agreement dated as of August 29, 1995 by and between
Greyrock Business Credit, a division of Greyrock Capital Group, Inc., and Marcam
Corporation, as amended, and any related agreements.
Note and Warrant Purchase Agreement dated as of May 12, 1994 by and
between Marcam Corporation and The Northwestern Mutual Life Insurance Company,
▇▇▇▇ ▇▇▇▇▇▇▇ Mutual Life Insurance Company and ▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance
Company of America.
Warrant Agreement dated as of May 12, 1994 by and between Marcam
Corporation and The Northwestern Mutual Life Insurance Company, ▇▇▇▇ ▇▇▇▇▇▇▇
Mutual Life Insurance Company and ▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company of
America.
Participation Agreement dated as of February 22, 1993 by and between
International Business Machines Corporation, Marcam Corporation and Mapics, Inc.
and other agreements related to the acquisition of certain rights related to the
MAPICS product line and the formation of Mapics, Inc.
Stock Purchase Agreement dated as of September 29, 1995 by and between
Marcam Corporation, International Business Machines Corporation, Edison Venture
Fund, L.P., ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇ and Mapics, Inc.