STOCK PURCHASE AGREEMENT
By and Among
SPSS INC.
and
THE SHAREHOLDERS OF QUANTIME LIMITED
LISTED ON THE SIGNATURE PAGES HEREOF
Dated as of November 21, 1997
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated as of November 21, 1997, (the
"Agreement"), by and among SPSS INC., a Delaware corporation ("SPSS") and the
shareholders of Quantime Limited, a corporation incorporated under the laws of
England with Registered Number 1400578 ("Quantime") listed on the signature
pages of this Agreement (hereinafter collectively referred to as the "Quantime
Shareholders").
W I T N E S S E T H:
WHEREAS, Quantime is engaged in the business of developing and
distributing market research software encapsulating strong data collection,
tabulation, on-screen analysis and EIS capabilities;
WHEREAS, the respective Boards of Directors of each of Quantime, and
SPSS have determined that it is advisable and for the benefit of their
corporations and their respective shareholders that Quantime be acquired by SPSS
by means of the acquisition from the Quantime Shareholders of the outstanding
capital shares of Quantime, comprised of Class "A" 1 ▇▇▇▇▇ ordinary shares,
Class "B" 1 ▇▇▇▇▇ ordinary shares and Class "C" US$0.01 ordinary shares
(collectively, the "Shares") including those represented by bearer warrants (the
"Warrants") held by the Quantime Shareholders, in exchange for shares of common
stock $.01 par value per share of SPSS (the "Common Stock"), pursuant to the
terms and conditions set forth herein (the "Acquisition");
WHEREAS, on September 30, 1997, SPSS acquired 96.8384% of the issued
and outstanding Shares from certain UK-connected and non-UK connected
shareholders of Quantime (collectively, the "Majority Shareholders"), pursuant
to those certain Stock Purchase Agreements dated as of September 30, 1997 (such
Stock Purchase Agreements are hereinafter collectively referred to as the "Prior
Agreements") between SPSS, the Majority Shareholders and ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇.
WHEREAS, the Quantime Shareholders own of record and beneficially
3.1616% of the issued and outstanding Shares;
WHEREAS, for United States federal income tax purposes, it is intended
that this transaction qualify as a reorganization under the provisions of
Section 368(a)(1)(B) of the Internal Revenue Code of 1986, as amended (the
"Code"), and that for United Kingdom taxation purposes, the transaction likewise
qualify as a reorganization (or the United Kingdom equivalent thereof) under the
provisions of applicable tax laws of the United Kingdom; and
WHEREAS, for United States accounting purposes, it is intended that
this transaction be accounted for as a "pooling of interests".
NOW, THEREFORE, in consideration of the premises, the mutual covenants
and agreements contained herein, and other good and valuable consideration, the
receipt and
sufficiency of which is hereby acknowledged, and in reliance upon the
representations and warranties contained herein, the parties hereto agree as
follows:
ARTICLE I
TERMS OF PURCHASE AND SALE
1.1 Purchase and Sale of the Shares. Subject to the terms and
conditions contained in this Agreement, on the Closing Date (as hereinafter
defined), the Quantime Shareholders shall sell, assign, transfer and deliver the
Shares owned by them to SPSS, and SPSS shall purchase the Shares owned by the
Quantime Shareholders from the Quantime Shareholders, for an aggregate purchase
price consisting of the items and amounts set forth in Section 1.3 hereof (the
"Purchase Price") payable pursuant to the terms provided in Section 1.3 hereof.
The Quantime Shareholders hereby represent, warrant and covenant that (a) the
Quantime Shareholders own and have good title to the Shares, free and clear of
any lien, pledge, claim, encumbrance, restriction or right of any third party of
any kind; (b) at the Closing, SPSS will acquire good title to the Shares owned
by the Quantime Shareholders free and clear as aforesaid, including without
limitation any of the foregoing set forth in the Memorandum of Association of
Quantime; and (c) the Shares owned by the Quantime Shareholders represent the
only equity interest of the Quantime Shareholders in Quantime. Each of the
Quantime Shareholders waives any rights of pre-emption and rights of first
refusal in relation to sales or transfers of the Shares owned by the Quantime
Shareholders, whether under the Articles of Association of Quantime or
otherwise.
1.2 Closing. Subject to the terms and conditions of this Agreement, the
closing of the transactions contemplated hereby (the "Closing") shall take place
at the offices of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ in London forthwith on this Agreement being
executed.
1.3 Payment of Purchase Price. Upon satisfaction of all matters set
forth in Article VIII hereof (the "Closing Date"), SPSS shall deliver to the
Quantime Shareholders the Purchase Price consisting of 28,175 shares of SPSS
Common Stock (the "Total Shares" or "Acquisition Stock") to be allocated between
the Quantime Shareholders as set forth in Schedule 1.3 hereof. Only whole shares
of SPSS Common Stock will be issued in connection with the Acquisition. In lieu
of fractional shares, each Quantime Shareholder otherwise entitled to a
fractional share of SPSS Common Stock will be paid in cash an amount equal to
the amount of such fraction multiplied by the closing price of SPSS Common Stock
on September 30, 1997. No such shareholder will be entitled to dividends, voting
rights or other rights in respect of any such fractional share.
1.4 Tax and Accounting. The parties hereto shall each use all
reasonable efforts to cause the transactions contemplated hereunder to be
treated as (i) a reorganization within the meaning of Section 368(a)(1)(B) of
the Code, and (ii) to qualify for accounting treatment as a pooling of
interests.
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ARTICLE II
SECURITIES MATTERS
2.1 Registration of SPSS Common Stock.
(a) SPSS shall prepare and file with the United States
Securities and Exchange Commission ("SEC") as soon as practicable, subject to
review by the Quantime Shareholders, (but in no event later than 90 days after
the Closing) a registration statement on Form S-3 and/or Form S-4, as
appropriate (together with all amendments and supplements to any such
registration statement, including post-effective amendments, and all material
incorporated by reference or deemed to be incorporated by reference in such
registration statement, the "Registration Statement"), under the Securities Act
of 1933, and the rules and regulations promulgated thereunder (the "1933 Act" or
the "Act"), for the registration (the "Registration") of the secondary offering
of the SPSS Common Stock for the account of the Quantime Shareholders. SPSS
expects to have published audited financial results, covering at least thirty
(30) days of the combined operations of SPSS and Quantime following the
Acquisition, not later than March 31, 1998. SPSS shall use all reasonable
efforts to have the Registration declared effective by the SEC promptly after
filing. To the extent that shares of SPSS Common Stock are not acquired by a
Quantime Shareholder pursuant to an effective registration statement on Form
S-4, SPSS shall use all reasonable efforts to register such SPSS Common Stock
for sale on a delayed or continuous basis under Rule 415 of the 1933 Act and,
provided that Form S-3 shall be available to SPSS for the Registration, to keep
such Registration Statement continuously effective, current and available for
use by the Quantime Shareholders for a period of twenty-four (24) months
following the date of effectiveness, or such shorter period that will terminate
when all of the shares of SPSS Common Stock have been sold by the Quantime
Shareholders (the "Trading Period"). While any Form S-3 Registration Statement
remains in effect, SPSS may at any time deliver to the Quantime Shareholders
written notice to the effect that sales may not be effected under the
Registration Statement for a period of time (the "Blackout Period") because of
the existence of material facts not disclosed or incorporated by reference in
such Registration Statement and in the then-current prospectus included therein;
upon receipt of any such notice, the Quantime Shareholders shall refrain from
selling any shares of SPSS Common Stock under such Registration Statement until
they have received notice from SPSS to the effect that such sales may then be
effected. In no event shall the Blackout Period be greater than any similar
period of time during which SPSS restricts any of its employees from effecting
sales in SPSS Common Stock because of the existence of material facts not
disclosed or incorporated by reference in any then-effective registration
statement and in the then-current prospectus included therein or otherwise not
publicly disclosed. SPSS shall promptly update such Registration Statement and
the prospectus included therein in order to permit the shares of SPSS Common
Stock to be sold, and the Trading Period shall automatically be extended by the
aggregate number of days during which the Quantime Shareholders were instructed
to refrain from selling shares of SPSS Common Stock during all Blackout Periods.
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(b) The Quantime Shareholders shall cooperate with SPSS in
connection with the Registration and shall provide such information and execute
such documents as SPSS shall reasonably request in connection with the
Registration.
(c) SPSS shall not grant to any holder of shares of SPSS
Common Stock registration rights which interfere with the rights of the Quantime
Shareholders and the obligations of SPSS under this Article II.
(d) Prior to such date as financial results covering at least
thirty (30) days of post-Acquisition combined operations of SPSS and Quantime
have been published within the meaning of Section 201-01 of the SEC's
Codification of Financial Reporting Policies (such date is hereinafter referred
to as the "Earnings Release Date"), SPSS will not take any action for which it
would be required to file a Form 8-K under Item 1 or Item 2 thereof.
2.2 Sales of SPSS Common Stock by the Quantime Shareholders. If at any
time prior to the effectiveness of the Registration Statement any Quantime
Shareholder elects to sell all or any of his shares of SPSS Common Stock, such
Quantime Shareholder shall conduct such sales only through registered securities
brokers ("Brokers").
2.3 Registration Expenses. SPSS shall be responsible for and shall pay
all fees, costs and expenses incurred by it relating to the Registration,
including without limitation, all SEC and securities exchange, NASDAQ
registration and filing fees, and all fees and expenses of compliance by SPSS
with the federal securities laws or any applicable state blue sky laws, but not
including (i) any fees and expenses of the Quantime Shareholders' counsel or
otherwise incurred by the Quantime Shareholders, and (ii) underwriters' fees or
expenses, broker's costs, commissions and other similar disposition costs
associated with the SPSS Common Stock owned by any Quantime Shareholder.
2.4 Restricted Stock. Quantime has advised the Quantime
Shareholders, and the Quantime Shareholders understand and agree, as follows:
(a) That the shares of SPSS Common Stock to be received by the
Quantime Shareholders pursuant to this Agreement are not currently subject to a
registration statement under the Act, and are issued pursuant to exemptions from
registration under the Act which exemptions depend, among other things, on the
bona fide nature of their investment intent.
(b) That they shall not transfer the SPSS Common Stock to be
received by the Quantime Shareholders pursuant to this Agreement except in
compliance with the provisions of the Act. Any proposed transferee of the shares
of SPSS Common Stock shall agree to take and hold such securities upon the
conditions set forth in Section 2.4(c) hereof.
(c) Until such time as the shares being sold hereunder to the
Quantime Shareholders may be sold under Rule 144(k), each certificate
representing the shares of SPSS Common Stock issued to the Quantime Shareholders
shall be stamped or otherwise imprinted
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with a legend in substantially the following form (in addition to any legend
required under applicable state securities laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED
IN A PRIVATE PLACEMENT. SUCH SHARES MAY NOT BE OFFERED, SOLD
OR TRANSFERRED IN THE UNITED STATES IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF
1933 OR AN EXEMPTION THEREFROM OR IN CONTRAVENTION OF THE
AGREEMENT COVERING THE PURCHASE OF THESE SHARES AND
RESTRICTING THEIR TRANSFER. COPIES OF THE AGREEMENT MAY BE
OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF
RECORD OF THIS CERTIFICATE TO THE SECRETARY OF THE COMPANY AT
ITS PRINCIPAL OFFICE.
When the shares being sold hereunder to the Quantime Shareholders may be sold
under the circumstances described in Rule 144(k) (or any successor rule or
regulation) and there exists no other restriction on the sale of stock imposed
subsequent to the date hereof, SPSS will, upon request of the Quantime
Shareholders, cause SPSS' transfer agent to exchange the shares legended as set
forth above for unlegended shares.
(d) Unless a registration statement under the Act covering
transactions in the SPSS Common Stock to be received by the Quantime
Shareholders pursuant to this Agreement has been declared effective by the SEC
and such registration statement remains effective at the time of transfer, each
holder of shares of SPSS Common Stock to be received by the Quantime
Shareholders pursuant to this Agreement shall comply in all respects with the
provisions of this Section 2.4. Prior to any proposed transfer of any such
securities, the holder thereof shall give written notice to SPSS of such
holder's intention to effect such transfer and shall comply with the
requirements set forth in the balance of this section. Each such notice shall
describe the manner and circumstances of the proposed transfer in reasonable
detail, and shall be accompanied by (i) a written opinion of legal counsel who
shall be reasonably satisfactory to SPSS, addressed to SPSS, and reasonably
satisfactory in form and substance to SPSS' counsel, to the effect that the
proposed transfer of such securities may be effected without registration under
the 1933 Act, (ii) a "no action" letter from the SEC to the effect that the
distribution of such securities without registration will not result in a
recommendation by the staff of the SEC that action be taken with respect
thereto, or (iii) such other showing satisfactory to SPSS and its counsel that
the proposed transfer of such securities may be effected without registration
under the 1933 Act, whereupon the holder of such securities shall be entitled to
transfer such securities in accordance with the terms of the notice delivered by
the holder to SPSS.
2.5 Indemnification; Contribution. In the event any SPSS Common
Stock held by a Quantime Shareholder is included in a registration statement
under this Article II:
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(a) SPSS will indemnify and hold harmless such Quantime
Shareholder, any underwriter (as defined in the Act) for such Quantime
Shareholder and each person, if any, who controls such Quantime Shareholder or
underwriter within the meaning of the Act or the 1934 Act, against any losses,
claims, damages, liabilities (joint or several) or expenses to which they may
become subject under the Act, the 1934 Act or other federal or state law,
insofar as such losses, claims, damages, liabilities (or actions in respect
thereof) or expenses arise out of or are based upon any of the following
statements, omissions or violations (collectively a "Violation"): (i) any untrue
statement or alleged untrue statement of a material fact contained in such
registration statement, including any preliminary prospectus or final prospectus
contained therein or any amendments or supplements thereto, (ii) the omission or
alleged omission to state therein a material fact required to be stated therein,
or necessary to make the statements therein not misleading, or (iii) any
violation or alleged violation by SPSS of the Act, the 1934 Act, any state
securities law or any rule or regulation promulgated under the Act, the 1934 Act
or any state securities law; and SPSS will pay to each such Quantime
Shareholder, underwriter or controlling person, any and all legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability, or action; provided, however,
that the indemnity agreement contained in this subsection 2.5(a) shall not apply
to amounts paid in settlement of any such loss, claim, damage, liability, action
or expense if such settlement is effected without the consent of SPSS, which
consent shall not be unreasonably withheld, nor shall SPSS be liable in any such
case for any such loss, claim, damage, liability, action or expense to the
extent that it arises out of or is based upon a Violation which occurs in
reliance upon and in conformity with written information furnished by such
Quantime Shareholder or any controlling person of such Quantime Shareholder
expressly for use in connection with such registration.
(b) Such Quantime Shareholder will indemnify and hold
harmless SPSS, each of its directors, each of its officers who has signed the
registration statement, each person, if any, who controls SPSS within the
meaning of the Act, any underwriter, and any controlling person of any such
underwriter, against any losses, claims, damages, liabilities (joint or several)
or expenses to which any of the foregoing persons may become subject, under the
Act, the 1934 Act or other federal or state law, insofar as such losses, claims,
damages, liabilities (or actions in respect thereto) or expenses arise out of or
are based upon any Violation, in each case to the extent (and only to the
extent) that such Violation occurs in reliance upon and in conformity with
written information furnished by such Quantime Shareholder expressly for use in
connection with such registration; and such Quantime Shareholder will pay, as
incurred, any legal or other expenses reasonably incurred by any person intended
to be indemnified pursuant to this subsection 2.5(b), in connection with
investigating or defending any such loss, claim, damage, liability, action or
expense; provided, however, that the indemnity agreement contained in this
subsection 2.5(b) shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability, action or expense if such settlement is effected
without the consent of such Quantime Shareholder, which consent shall not be
unreasonably withheld or delayed; provided, that, in no event shall any
indemnity under this subsection 2.5(b) exceed the gross proceeds from the
offering of the shares of SPSS Common Stock received by such Quantime
Shareholder. SPSS
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shall make the Registration Statement available to the Quantime Shareholders for
comment prior to the filing thereof.
(c) Promptly after receipt by an indemnified party under this
Section 2.5 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 2.5, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party
(together with all other indemnified parties which may be represented without
conflict by one counsel) shall have the right to retain one separate counsel,
with the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to a conflict of interests between
such indemnified party and any other party represented by such counsel in such
proceeding. The failure to deliver written notice to the indemnifying party
within a reasonable time of the commencement of any such action, if prejudicial
to its ability to defend such action, shall relieve such indemnifying party of
any liability to the indemnified party under this Section 2.5.
(d) If the indemnification provided for in this Section 2.5
from the indemnifying party is unavailable to an indemnified party hereunder in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then the indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party and indemnified party in connection with the actions which resulted in
such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative faults of such indemnifying
party and indemnified party shall be determined by reference to, among other
things, whether any action in question, including any untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact, has been made by, or relates to information supplied by, such indemnifying
party or indemnified party, and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such action. The amount
paid or payable by a party as a result of the losses, claims, damages,
liabilities and expenses referred to above shall be deemed to include any fees,
charges or expenses (including fees, disbursements and other charges of legal
counsel) reasonably incurred by such party in connection with any investigation
or proceeding. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person.
2.6 Additional Obligations of SPSS. With respect to any
registration hereunder, SPSS shall:
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(a) furnish to the Quantime Shareholders such numbers of
copies of a prospectus, including a preliminary prospectus, in conformity with
the requirements of the Act, and such other documents as they may reasonably
request in order to facilitate the disposition of shares of SPSS Common Stock
owned by them;
(b) use reasonable efforts to qualify the securities covered
by such registration statement under such other securities or Blue Sky laws of
such jurisdictions as shall be reasonably appropriate for the distribution of
the securities covered by the registration statement;
(c) use reasonable efforts to notify the NASDAQ Stock Market
of the issuance of the shares of SPSS Common Stock covered by such registration
statement and list such shares; and
(d) notify each Quantime Shareholder of shares of SPSS Common
Stock under such registration statement as promptly as possible, at any time
when a prospectus relating thereto is required to be delivered under the Act, of
the happening of any event of which SPSS has knowledge as a result of which the
prospectus contained in such registration statement, as then in effect, includes
an untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing.
2.7 Reports Under the Exchange Act. With a view to making available to
the Quantime Shareholders the benefits of Rule 144 promulgated under the Act and
any other rule or regulation of the SEC that may at any time permit a Quantime
Shareholder to sell securities of SPSS to the public without registration, SPSS
agrees to use its reasonable efforts to:
(a) make and keep public information available, as those
terms are understood and defined in Rule 144, at all times;
(b) file with the SEC in a timely manner all reports and
other documents required of SPSS under the Act and the Exchange Act; and
(c) furnish to any Quantime Shareholder forthwith upon request
a written statement by SPSS that it has complied with the reporting requirements
of Rule 144 and of the Act and the Exchange Act, a copy of the most recent
annual or quarterly report of SPSS, and such other reports and documents so
filed by SPSS as may be reasonably requested in availing any Quantime
Shareholder of any rule or regulation of the SEC permitting the selling of any
securities of SPSS held by it without registration.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SPSS
SPSS represents and warrants to the Quantime Shareholders as follows:
3.1 Organization and Qualification. SPSS is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has the corporate power and authority to enter into this Agreement
and to consummate the transactions contemplated hereby.
3.2 Authority. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly and validly
authorized by SPSS and, no other corporate proceedings on the part of SPSS are
necessary to authorize this Agreement or to consummate the transactions
contemplated hereby. This Agreement has been duly and validly executed and
delivered by SPSS and constitute legal, valid and binding agreements of SPSS.
3.3 Consents and Approvals. There is no authorization, consent, order
or approval of, or notice to or filing with, any individual or entity required
to be obtained or given in order for SPSS to consummate the transactions
contemplated hereby and fully perform its obligations hereunder.
3.4 Absence of Conflicts. The execution, delivery and performance by
SPSS of this Agreement (including, without limitation, the offering, issuance
and sale of the Acquisition Stock) and the consummation by SPSS of the
transactions contemplated hereby will not, with or without the giving of notice
or the lapse of time, or both, (i) violate any provision of law, statute, rule
or regulation to which SPSS is or was subject, (ii) violate any order, judgment
or decree which is or was applicable to SPSS or (iii) conflict with, or result
in a breach or default under, any term or condition of the Certificate of
Incorporation or By-Laws of SPSS or any agreement or other instrument to which
SPSS is a party or by which SPSS is bound.
3.5 Acquisition Stock. The Acquisition Stock, when delivered in
accordance with this Agreement, shall be duly authorized, validly issued, fully
paid and nonassessable.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF
THE QUANTIME SHAREHOLDERS
The Quantime Shareholders severally represent and warrant to SPSS as
follows:
4.1 Authority. The Quantime Shareholders, on their own behalf,
and the attorneys-in-fact executing and delivering this Agreement on behalf of
any such Quantime Shareholders, have
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full power, capacity and authority (corporate or otherwise) to execute and
deliver this Agreement, and all documents and instruments executed and delivered
in connection therewith, and to consummate the transactions contemplated hereby
and thereby. The execution and delivery of this Agreement and such other
documents and the consummation of the transactions contemplated hereby and
thereby have been duly and validly authorized and approved by all necessary
action on the part of each of the Quantime Shareholders and no other proceedings
(corporate or otherwise) on the part of any of the Quantime Shareholders are
necessary to authorize this Agreement and such documents or to consummate the
transactions contemplated hereby and thereby. This Agreement and the other
agreements contemplated by this Agreement have been duly and validly executed
and delivered by or on behalf of each of the Quantime Shareholders and
constitute legal, valid and binding agreements of the Quantime Shareholders.
ARTICLE V
COVENANTS OF THE QUANTIME SHAREHOLDERS
The Quantime Shareholders, jointly and severally, covenant as follows:
5.1 Consents and Approvals. The Quantime Shareholders agree to use all
reasonable efforts to make all registrations, filings and applications, and give
all notices and obtain all governmental and other consents, approvals, orders,
qualifications and waivers necessary for the consummation of the transactions
contemplated by, or the performance by the Quantime Shareholders of any of their
obligations under, this Agreement, or which may become reasonably necessary or
desirable in connection with any of the foregoing, in each case upon terms and
conditions reasonably satisfactory to SPSS and its counsel. The Quantime
Shareholders waive any pre-emption rights and rights of first refusal in
relation to the Shares, whether under the Articles of Association of Quantime or
otherwise.
5.2 Cost of Shares. Upon request by SPSS, the Quantime Shareholders
will provide SPSS with information relating to, and including, the consideration
paid by the Quantime Shareholders for the Shares owned by the Quantime
Shareholders at the time of acquisition of such Shares.
5.3 Further Assurances. The Quantime Shareholders shall from time to
time, at the request of SPSS and without further cost or expense to SPSS,
execute and deliver such other documents and take such other actions as shall be
reasonably necessary or appropriate to consummate fully the transactions
contemplated hereby.
5.4 Power of Attorney. Pending the entry of SPSS onto Quantime's share
register, each of the Quantime Shareholders will grant to SPSS an irrevocable
power of attorney to exercise all rights relating to the Shares to the same
extent and with the same effect as if SPSS had been entered on such share
register.
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ARTICLE VI
COVENANTS OF SPSS
SPSS covenants as follows:
6.1 Further Assurances. SPSS shall from time to time execute and
deliver such other documents and take such other actions as shall be reasonably
necessary or appropriate to consummate fully the transactions contemplated
hereby.
ARTICLE VII
MUTUAL COVENANTS
Each of the parties hereto covenants as follows:
7.1 Confidentiality. Except as otherwise required by law or judicial or
administrative proceedings, including proceedings between the parties with
respect to the transactions contemplated hereby, and then only to the extent
specifically required by such proceedings, and except for public announcements
on the advice of counsel, each of the parties agrees not to (i) disclose any
Confidential Information (defined hereinbelow) of any other party, or the terms
of this Agreement, to any individual or entity (other than its directors,
officers, employees, agents and representatives with a need to know such
Confidential Information in order to consummate the transactions contemplated
hereby and then only if reasonable steps are taken with such parties to preserve
the confidentiality thereof) or (ii) use any Confidential Information for any
purpose other than, with respect to SPSS operating the acquired business.
"Confidential Information" shall mean any secret or confidential information of
the software business of Quantime or SPSS, including, but not limited to,
customer information, financial information, technical information, details or
information concerning contracts, trade secrets, marketing information or any
other data, information or proprietary information of or relating to the
software business of Quantime or SPSS or any affiliate thereof, or their
respective products or services. No obligations shall exist under this Agreement
with respect to Confidential Information that (i) is publicly known at the time
of the disclosure or becomes publicly known through no wrongful act or failure
of Quantime, the Quantime Shareholders or SPSS, (ii) is disclosed by a third
party which does not have a confidential relationship with either Quantime, the
Quantime Shareholders or SPSS, and which was rightfully acquired by a third
party, or (iii) is legally compelled to be disclosed pursuant to a subpoena,
summons, order or other judicial or governmental process, provided that the
parties hereto provide prompt notice of any such subpoena, summons, order or
other judicial or governmental process to such other parties of the Confidential
Information, so as to allow the parties an opportunity to oppose such process.
7.2 Consistent Tax Reporting. The parties agree for tax purposes
to report the transactions contemplated by this Agreement, and to treat any
subsequent related transactions
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or items, in a manner consistent in all respects with the terms and provisions
of this Agreement. Each party shall cooperate with the other parties as
appropriate for all relevant tax purposes relating to the transactions
contemplated by this Agreement.
ARTICLE VIII
CLOSING DELIVERIES
The following deliveries shall be made at the Closing:
8.1 Delivery of Share Certificates and Stock Transfers. The
Quantime Shareholders shall deliver to SPSS the share certificates and related
signed stock transfers in respect of the other Shares.
8.2 Delivery of Closing Documents. The Quantime Shareholders shall
deliver to SPSS all other instruments and documents required hereunder.
8.3 Consents. The Quantime Shareholders shall deliver to SPSS all
consents and approvals required in connection with the performance by the
Quantime Shareholders of their respective obligations under this Agreement and
the consummation by the Quantime Shareholders of the transactions contemplated
hereby and thereby. SPSS shall deliver to the Quantime Shareholders all consents
and approvals required in connection with the performance by SPSS of its
obligations under this Agreement and the consummation by SPSS of the
transactions contemplated hereby and thereby.
8.4 Repayment of Amounts Owed. The Quantime Shareholders shall repay,
or cause to be repaid, all amounts owing on the Closing Date to Quantime and the
subsidiaries of Quantime from the directors of any of them and from the Quantime
Shareholders, whether due for payment or not.
8.5 Resolutions of Certain Quantime Shareholders. Each Quantime
Shareholder that is not an individual or is not acting individually and on his
or her own behalf, shall execute and deliver to SPSS certified resolutions
authorizing the execution and delivery by such Quantime Shareholder of this
Agreement and the documents related thereto, and performance by such Quantime
Shareholder of the transactions contemplated hereby and thereby.
8.6 Further Assurances. Each party shall deliver, or cause to be
delivered, all other documents required to be delivered by it at the Closing to
the other party and shall take all other actions which the other parties may
reasonably determine necessary or appropriate in order to consummate fully the
transactions contemplated hereby.
12
ARTICLE IX
SURVIVAL AND INDEMNIFICATION
9.1 Survival of Representations and Warranties: Covenants. All
representations and warranties contained herein or made in writing by any party
in connection herewith shall survive the Closing Date until the earlier of the
first anniversary of the Closing Date or the date of delivery to SPSS of SPSS'
year-end audited financial statements by SPSS' outside auditors (the "Audit
Release Date"). All covenants contained herein shall survive until performed
fully.
9.2 Indemnification.
(a) Subject to and as modified by Section 9.2(b), the Quantime
Shareholders agree to indemnify and hold SPSS and its affiliates and the
respective officers, directors, employees, agents and representatives of each of
the foregoing (collectively, the "Representatives") harmless from and against
any and all costs, expenses, losses, claims, damages, interest, penalties,
fines, liabilities and obligations whenever arising or incurred (including,
without limitation, amounts paid in settlement, costs of investigation and
attorneys' fees and expenses) (individually, a "Loss," and collectively,
"Losses") arising out of or relating to any breach of any representation,
warranty or covenant made by the Quantime Shareholders set forth herein.
(b) The aggregate of all indemnities to be provided to SPSS
pursuant to this Article IX (an "Indemnification Payment") shall not exceed an
amount equal to ten percent (10%) of the Total Shares (the "Cap").
Notwithstanding the foregoing, the Cap shall not apply to the indemnities
provided in this Agreement for any fraud, willful misconduct, gross negligence
or criminal action on the part of the Quantime Shareholder engaging in such
fraud, willful misconduct, gross negligence or criminal action, and
notwithstanding anything contained or implied in this Agreement, the indemnity
obligations set forth herein above in this sentence shall survive the Closing
without limitation except as provided by the applicable statute of limitations
(including any extension of said statute of limitations).
9.3 Indemnification by SPSS. SPSS agrees to indemnify and hold the
Quantime Shareholders and their affiliates and the respective officers,
directors, employees, agents and representatives of each of the foregoing
harmless from and against any and all Losses relating to any breach of any
representation, warranty or covenant of SPSS set forth herein. Any
indemnification made by SPSS under this section 9.3 shall be in SPSS Common
Stock, valued at the closing price of SPSS Common Stock on September 30, 1997.
9.4 Indemnification Procedure. (a) An indemnified party under this
Article IX shall give prompt written notice to the indemnifying party (when and
to the extent that the indemnified party has actual knowledge thereof) of any
condition, event or occurrence or the commencement of any action, suit or
proceeding for which indemnification may be sought, and through counsel
reasonably satisfactory to the indemnified party, shall assume the defense
thereof or other
13
indemnification obligation with respect thereto; provided, however, that any
indemnified party shall be entitled to participate in any such action, suit or
proceeding with counsel of its own choice but at its own expense; and provided,
further, that any indemnified party shall be entitled to participate in any such
action, suit or proceeding with counsel of its own choice at the expense of the
indemnifying party, if, under applicable canons of ethics, joint representation
of the indemnifying party and the indemnified party presents a conflict of
interest.
In any event, if the indemnifying party fails to assume the defense
within a reasonable time, the indemnified party may assume such defense or other
indemnification obligation and the reasonable fees and expenses of its attorneys
will be covered by the indemnity provided for hereunder. No action, suit or
proceeding for which indemnification may be sought shall be compromised or
settled in any manner which might adversely affect the interests of the
indemnifying party without the prior written consent of the indemnifying party
(which shall not be unreasonably withheld); provided, however, that the
indemnified party may settle any claim or cause of action without the
indemnifying party's consent, but in such case the indemnifying party shall not
be required to reimburse the indemnified party for its Losses except and to the
extent that the results of arbitration, conducted in accordance with Section 9.5
hereof, determines that the indemnifying party must indemnify the indemnified
party therefor. Notwithstanding anything in this Section 9.4 to the contrary,
the indemnifying party shall not, without the prior written consent of the
indemnified party, (i) settle or compromise any action, suit or proceeding or
consent to the entry of any judgment which does not include as an unconditional
term thereof the delivery by the claimant or plaintiff to the indemnified party
of a written release from all liability in respect of such action, suit or
proceeding or (ii) settle or compromise any action, suit or proceeding in any
manner that may materially and adversely affect the indemnified party other than
as a result of money damages or other money payments. The indemnifying party
shall pay all expenses, including attorneys' fees, that may be incurred by any
indemnified party in enforcing the indemnity provided for hereunder.
9.5 Arbitration. Any dispute as to any claims under this Agreement
shall be settled by arbitration in Wilmington, Delaware by three arbitrators,
one of whom shall be appointed by the Quantime Shareholders, one by SPSS and the
third of whom shall be appointed by the first two arbitrators. If either party
fails to appoint an arbitrator within 30 days of a request in writing by the
other party to do so or if the first two arbitrators cannot agree on the
appointment of a third arbitrator within 20 days of their designation, then such
arbitrator shall be appointed by the Chief Judge of the United States District
Court for the District of Delaware. Except as to the selection of arbitrators
which shall be as set forth above, the arbitration shall be conducted promptly
and expeditiously in accordance with the commercial arbitration rules of the
American Arbitration Association so as to enable the arbitrators to render an
award within 90 days of the commencement of the arbitration proceedings.
Judgment upon the award rendered by the arbitrators may be entered in any court
having jurisdiction thereof. The costs of the arbitration and the arbitrator
shall be allocated as provided in the results of the arbitration.
9.6 Treatment as Adjustment of Purchase Price. Any indemnity
payment received by a party hereunder shall be treated as an adjustment of the
purchase price. However, in the event
14
that the Internal Revenue Service, Inland Revenue or any other taxing authority
determines that such indemnity payment constitutes taxable gain or income to the
indemnified party, the indemnifying party shall increase the amount otherwise
required to be paid so that the indemnified party, receives, on an after-tax
basis, an amount equal to the amount it would have received had the indemnity
not resulted in taxable gain or income.
9.7 Limited Remedies. SPSS shall have no cause of action against the
Quantime Shareholders for matters arising out of the sale to SPSS of Shares of
Quantime other than the contractual remedies contained herein or in ancillary
documents executed and delivered in connection with the transactions
contemplated hereby, and claims sounding in fraud, misrepresentation under
United States laws, equitable estoppel and promissory estoppel. SPSS
acknowledges that it has not been induced to enter into this Agreement by any
representation, warranty, promise or assurance by the Quantime Shareholders or
any other person other than those specifically contained in this Agreement or in
ancillary documents executed and delivered in connection with the transaction
contemplated hereby.
ARTICLE X
MISCELLANEOUS
10.1 Amendment and Modification. Subject to applicable law, this
Agreement may be amended, modified and supplemented by written agreement of the
parties.
10.2 Waiver of Compliance. Any failure of the Quantime Shareholders on
the one hand, or SPSS, on the other, to comply with any obligation herein may be
expressly waived hereunder, but such waiver shall not operate as a waiver of, or
estoppel with respect to, any subsequent or other failure. Any waiver must be in
writing and duly executed by the appropriate parties.
10.3 Expenses. Payment of the reasonable fees and expenses incurred by
the Quantime Shareholders solely in connection with the Acquisition of the
Shares of the Quantime Shareholders under this Agreement shall be made by SPSS.
SPSS agrees to pay the fees and disbursements of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ in acting for
the Quantime Shareholders in relation to this Agreement.
10.4 Notices. All notices, requests, demands and other communications
required or permitted hereunder shall be in writing and shall be deemed to have
been duly given when delivered by hand or by facsimile transmission (receipt
confirmed), one day after being sent by recognized overnight courier or delivery
service, freight prepaid, or five days after being mailed, certified or
registered mail, postage prepaid, return receipt requested:
15
(a) If to I.M. ▇▇▇▇, ▇. ▇▇▇▇▇▇, A.D. Renny, ▇. ▇▇▇▇▇,
H.J.S. ▇▇▇▇, ▇. ▇▇▇▇▇▇▇▇▇, ▇. ▇▇▇▇▇▇ and/or ▇. ▇▇▇▇▇▇▇▇, addressed to such
Quantime Shareholder, to:
c/o Quantime Limited
Maygrove House
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇
Facsimile No.: 44 171 624 5297
(b) If to ▇. ▇▇▇▇▇▇▇▇▇, to:
▇. ▇▇▇▇▇▇▇▇▇
c/o Quantime S.A. de C.V.
Paseo de la Reforma
▇▇-▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Facsimile No.: 00 52 5 535 6657
(c) If to Min Charitable Trust, to:
Min Charitable Trust
c/▇ ▇▇▇▇▇ & ▇▇▇▇
Princes Court
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile No.: 0171 796 1807
as to each of (a), (b) and (c), with a copy to:
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Facsimile No.: 0171 628 2070
or to such other person or address as the Quantime Shareholders shall furnish to
SPSS in writing by notice given in the manner set forth above.
16
(b) If to SPSS, to:
SPSS Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Mr. ▇▇▇▇▇▇ Hamburg
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: T. ▇▇▇▇▇▇▇ ▇▇▇▇, Esq.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other person or address as SPSS shall furnish to the Quantime
Shareholders in writing by notice given in the manner set forth above.
10.5 Assignment. This Agreement and all of the provisions hereof shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns, but neither this Agreement nor any
of the rights, interests or obligations hereunder shall be assigned by any of
the parties hereto without the prior written consent of the other parties,
except by operation of law and except that SPSS may assign its rights and
obligations under this Agreement to any other entity wholly owned by SPSS. If
such assignment shall be made by SPSS, the assignee shall be entitled to all of
the rights and shall assume all of the obligations of SPSS hereunder, provided,
that SPSS shall remain liable for and guarantee the performance of such entity's
obligations under this Agreement and shall issue to the Quantime Shareholders
the SPSS Common Stock as provided herein.
10.6 Publicity. Neither the Quantime Shareholders nor SPSS shall make
or issue, or cause to be made or issued, any announcement or written statement
concerning this Agreement or the transactions contemplated hereby for
dissemination to the general public, without the prior written consent of the
other parties, nor shall the Quantime Shareholders cause or permit Quantime to
do so. This provision shall not apply, however, to any announcement or written
statement required to be made by law, the regulations of any federal or state
governmental agency or any stock exchange, except that the party required to
make such announcement shall, whenever practicable, consult with the other party
concerning the timing and content of such announcement before such announcement
is made.
10.7 Headings. The Article and Section headings contained in this
Agreement are inserted for convenience only and shall not affect in any way the
meaning or interpretation of this Agreement.
17
10.8 Severability. If any provision of this Agreement shall be
determined to be contrary to law and unenforceable by any court of law, the
remaining provisions shall be severable and enforceable in accordance with their
terms.
10.9 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware, without regard to its
conflicts of law doctrine. The parties hereto expressly submit themselves to the
non-exclusive jurisdictions of the State and Federal Courts of Illinois for the
resolution of any disputes which may arise under or with respect to compliance
with this Agreement.
10.10 Counterparts. This Agreement may be executed simultaneously 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.
10.11 Third Parties. Nothing herein shall be construed to confer upon
or give to any party other than the parties hereto and their successors or
permitted assigns, any rights or remedies under or by reason of this Agreement.
10.12 References to Laws. References to particular statutes within this
Agreement, to the extent such references relate to laws other than the laws of
the United States or any particular State thereof, are intended to refer, and
shall be construed as referring, to laws of the United Kingdom.
10.13 Entire Agreement. This Agreement, including the Exhibits and
Schedules hereto, sets forth the entire agreement and understanding of the
parties hereto in respect of the subject matter contained herein, and supersedes
all prior agreements, covenants, representations or warranties, whether oral or
written, by any party hereto.
10.14 Trustees. To the extent signatories hereto are trustees or
attorneys-in-fact, the parties acknowledge and agree that such persons are
executing and delivering this Agreement and consummating the transactions
contemplated hereby solely in their capacity as such trustees and
attorneys-in-fact and not individually, and further, that said trustees and
attorneys-in-fact shall have no personal liability in connection therewith. With
respect to Quantime Shareholders which are trusts or foundations, claims under
the Agreement are limited to trust assets and the Shares and no claims will be
made against the trustees, attorneys-in-fact and officers acting in their
capacity as such. The provisions of this Section 10.14 shall apply with equal
force to and shall be deemed to be incorporated by reference in all ancillary
documents signed by signatories who are trustees or attorneys-in-fact and who
execute any ancillary documents in connection with the transactions contemplated
by this Agreement.
10.15 Investment in the Common Stock. As of the Closing Date, each of
the Quantime Shareholders (as to himself or herself and not as to any other
Quantime Shareholder): (i) has received and carefully reviewed copies of the
SPSS Reports (hereinafter defined); (ii) has evaluated, and/or his or her
business, tax and/or other legal advisors have evaluated and advised
18
such Quantime Shareholder as to the merits, disadvantages and risks of an
investment in SPSS Common Stock; (iii) acknowledges that, in reliance upon these
representations, SPSS is not registering the issuance of the SPSS Common Stock
under the Act prior to the Closing Date; (iv) acknowledges that the SPSS Common
Stock may not be resold except in a transaction which is registered under the
Act or which is exempt from such registration requirements and that SPSS will
cause a legend setting forth such restrictions to be placed on each certificate
representing the SPSS Common Stock and will make appropriate notations in its
records and the records of its transfer agent with respect thereto; (v)
recognizes the speculative nature of the SPSS Common Stock and is able to bear
the economic risk of the investment he or she is making in SPSS Common Stock by
reason of the transactions contemplated by this Agreement; (vi) is acquiring the
SPSS Common Stock for his or her own account, as principal, for investment
purposes only and without a view to the resale, transfer or other distribution
thereof except in a sale registered under the Act or in a transaction exempt
from the registration requirements of the Act; (vii) acknowledges that the
Acquisition Stock of SPSS being acquired pursuant to the terms of this Agreement
represents an investment in the business of SPSS, and that SPSS has made no
representations or warranties with respect to the future business performance of
SPSS or the price of its Common Stock; and (viii) has been afforded an
opportunity to ask questions and receive answers concerning SPSS and its
operations, business and financial condition, the SPSS Common Stock and the
terms and conditions of this Agreement and has received any additional
information concerning SPSS and its operations, business and financial
condition, the SPSS Common Stock and this Agreement that such Quantime
Shareholder has reasonably requested.
19
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as an agreement under hand (in the case of SPSS) and
as a deed (in the case of the Quantime Shareholders), all as of the day and year
first written above.
SPSS:
SPSS INC., a Delaware corporation
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: President
20
THE QUANTIME SHAREHOLDERS:
/s/ I.M. ▇▇▇▇ /s/ ▇. ▇▇▇▇▇▇
I.M. ▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ A.D. Renny /s/ ▇. ▇▇▇▇▇
A.D. ▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ H.J.S. ▇▇▇▇ /s/ ▇. ▇▇▇▇▇▇▇▇▇
H.J.S. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
/s/ ▇. ▇▇▇▇▇▇ /s/ ▇. ▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ ▇. ▇▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
TRUSTEES OF MIN CHARITABLE TRUST
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Trustee
By:
Name:
Title:
21
SCHEDULE 1.3
Min Charitable Trust 16,007
I.M. ▇▇▇▇ 9,530
▇. ▇▇▇▇▇▇ 609
A.D. Renny ▇▇▇
▇. ▇▇▇▇▇ ▇▇▇
▇.▇.▇. ▇▇▇▇ 254
▇. ▇▇▇▇▇▇▇▇▇ 229
▇. ▇▇▇▇▇▇ 229
▇. ▇▇▇▇▇▇▇▇▇ 197
▇. ▇▇▇▇▇▇▇▇ 152
22