UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM 10-KSB
(Mark One)
[ * ] ANNUAL REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF
1934
For the fiscal year ended March 31, 1999
[ ] TRANSITION REPORT UNDER SECTION 13 OR 15(d) OF THE EXCHANGE ACT
Commission file number 0-12196
PREMIS Corporation
(Exact name of small business issuer as specified in its charter)
Minnesota 41-14240202
(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
13220 County Road 6, Plymouth, Minnesota 55441
(Address of principal executive office)
(612) 550-1999
(Issuer's telephone number)
Securities registered under Section 12(b) of the Exchange Act: NONE
Securities registered under Section 12(g)
of the Exchange Act: Common Stock, $.01 par value
(Title and class)
Not Applicable
(Former name, former address and former
fiscal year, if changed since last report)
Check whether the issuer (1) filed all reports required to be filed by Section
13 or 15(d) of the Exchange Act during the past 12 months (or for such shorter
period that the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days. Yes [ * ] No [ ]
Check if there is no disclosure of delinquent filers in response to Item 405 of
regulation S-B is not contained in this form, and no disclosure will be
contained, to the best of registrant's knowledge, in definitive proxy or
information statements incorporated by reference in Part III of this Form 10KSB
or any amendment to this Form 10-KSB. [ ]
Issuer's revenues for its most recent fiscal year. $5,811,024
The aggregate market value of the Common Stock held by non-affiliates of the
Registrant as of May 10, 1999 was $3,922,583, based on the closing sale price
for the Company's Common Stock on that date as reported on the Over-The-Counter
Bulletin Board of the National Association of Securities Dealers. For purposes
of determining this number, all officers and directors of the Registrant are
considered to be affiliates of the Registrant, as well as individual
shareholders holding more than 10% of the Registrant's outstanding Common Stock.
This number is provided only for the purpose of this report on Form 10-KSB and
does not represent an admission by either the Registrant or any such person as
to the status of such person.
DOCUMENTS INCORPORATED BY REFERENCE: Portions of the Registrant's definitive
Proxy Statement for the Registrant's Annual Meeting of Stockholders to be held
July 28, 1999 for the year ended March 31, 1999, a definitive copy of which the
Registrant anticipates will be filed on or before June 28,1999, are incorporated
by reference in Part III.
Transitional Small Business Disclosure Format (Check one): Yes [ ] No [ * ]
PART 1
ITEM 1. Description of Business.
PREMIS Corporation (the "Company" or "PREMIS") develops, markets and supports
enterprise-wide retail automation systems to meet the information needs of
multi-store specialty and general merchandise retailing chains. The Company's
systems provide retailers with a variety of integrated functions and benefits
such as:
* point of sale data collection
* "real time" sales analysis reporting by store, product,
customer or salesperson
* enterprise inventory tracking
* improved customer loyalty
* merchandise management
* gross margin improvement
* increased inventory productivity
* improved loss prevention
* store to head office communications
* electronic data interface for on-line ordering from vendors
and customers
* on-line communication connections between stores and main
corporate office
The Company has developed leading-edge, industry-specific software systems to
collect business information, analyze the collected data and provide timely and
meaningful reports to individuals within an organization. During this fiscal
year, PREMIS continued to improve the functionality of its standard suite of
software products - "PREMIS OpenEnterprise".
PREMIS OpenEnterprise retail software combines an easy-to-use POS transaction
processing interface with sophisticated data analysis and information reporting
capabilities at the head office. The graphical user interface significantly
reduces the cost of training cashier personnel and shortens the time required
to process a sale. This software is designed to accelerate information access
and provide a wide variety of management reports on a "real time" basis to
various levels of an organization. The sophisticated data acquisition and
processing features of the products are directed at satisfying the needs of the
entire retail market.
During the fiscal year ended March 31, 1999, the Board of Directors of the
Company determined that greater shareholder value would be obtained by the sale
of the Company's business rather than continued operations. See "RECENT
HISTORY AND COMPANY STRATEGY" below. The Company intends to present a proposal
for the sale of its subsidiary, PREMIS Systems Canada, at the upcoming annual
meeting of the shareholders, pursuant to the proxy statement for the meeting.
Portions of such proxy statement are incorporated by reference in Part III of
this Form 10-KSB.
INDUSTRY OVERVIEW
Over the past two decades, many businesses have significantly increased their
use of software products and computer systems to automate tasks and improve the
efficiency of their day-to-day operations and long-term strategic planning.
Historically, most businesses purchased software tools specifically designed to
address a particular task or function of their operations. Most of these
software tools were engineered by different software companies and,
consequently, each tool had difficulty communicating data it gathered to the
other systems. The need for fast and reliable data transfer between various
business functions created a demand for software and hardware solutions which
integrated the independent business functions of an organization.
In response, firms like PREMIS have expanded the functionality of their
software products to integrate a wide variety of independent tasks within a
particular business. These software systems allow data from one business
function to be available to any other function, thereby creating an
enterprise-wide information management system. Company-wide portability
provides critical information to a wide variety of personnel within an
organization to more effectively and efficiently manage day-to-day activities,
as well as long-term strategic objectives.
MULTI-STORE SPECIALTY AND GENERAL MERCHANDISE RETAIL MARKET
This market is comprised of approximately 14,000 chain headquarters controlling
roughly 250,000 stores. This market includes apparel and accessory stores, gift
and novelty stores, sporting goods stores and department stores. Although the
number of specialty retail stores has not shown consistent growth, there are
always individual store chains which are expanding and new chains which are
emerging. PREMIS has found that as retail chains expand, even those that
historically developed their own information management systems migrate toward
outside vendors because they lack technical expertise necessary to support
rapidly evolving and changing information management technologies. Although
retailers historically have computerized POS data, many have not integrated
their POS software with their "back office" store systems or headquarters
systems. This lack of integration of the back office and headquarters systems
has prevented effective interfacing between POS and management data. Specialty
and general merchandise retailers are increasingly seeking the full integration
of these individual store and headquarters management functions to maximize the
availability of data on an enterprise-wide basis. Management believes that the
Company's products are marketable to any size multi-store specialty retail
chain.
PRODUCTS AND SERVICES
The Company's systems consist of standardized and optional applications
software offered to its target market. These software products are often
combined with computer hardware purchased by the Company from various suppliers
providing equipment for Windows NT(tm) operating systems. The Company's
current principal product is PREMIS OpenEnterprise. The Company also provides
extensive project management, consulting, education, end-user training and
on-site support to help manage the implementation process for new customers, as
well as help desk services for existing customers.
PREMIS OpenEnterprise
PREMIS OpenEnterprise and its related components provides a complete
enterprise-wide automation solution for all specialty and general merchandise
retail chains, including softgoods retailers, and eliminates the need to
purchase and integrate software components from a number of different vendors.
PREMIS OpenEnterprise includes:
* PREMIS OpenOffice, which automates head office functions and
provides easy access to mission critical information for the entire retail
organization;
* PREMIS OpenStore, which automates the entire POS function
consistent with the "open system" concept; and
* PREMIS OpenNet, which provides real-time on-line
communications as well as periodic summary between headquarters and individual
stores by extending the head office LAN to the POS workstation in individual
stores.
Each of the system's component parts may operate independently or in
conjunction with other components.
COMPETITION
The Company competes directly with other information systems software vendors
and system integrators that market similar software. The Company competes
indirectly with certain hardware vendors that offer their own proprietary
management information system software.
In the Company's view, its strongest competitors in the specialty retail
distribution market are those that have the ability to design, develop and
install enterprise-wide retail automation systems. In general, these
competitors are highly knowledgeable about the specialty retailer's business
and about the capabilities of their own products. PREMIS believes that its
primary direct competitors in the specialty retail market are STS Systems,
Inc., Datavantage, CRS Business Computers, Inc., JDA Software, Inc., as well as
other smaller vendors. The Company also has several indirect competitors in
hardware vendors such as IBM, ICL Retail Systems (a division of Fujitsu America
Inc.) and NCR Corporation, that offer, along with their hardware, software
systems that compete with the Company's software products.
TECHNOLOGY AND PRODUCT DEVELOPMENT
The Company utilizes state-of-the-art technologies to gather relevant
information from a business transaction, transport that data to a central
database, manipulate and analyze the data and provide concise and comprehensive
reports to the appropriate people within an organization to assist them with
their day-to-day decisions and long-term strategic planning. The Company's
software products are written in C and object-oriented C++ source code
languages which enable a programmer to develop a user-friendly Graphical User
Interface ("GUI") and to program tasks more efficiently for increased speed.
The Company's products utilize client/server architecture and relational
databases. A business comprising many separate locations, such as a retail
chain, presents a natural application of client/server and relational database
technologies. The Company's management believes that client/server architecture
will be the dominant networking technology for the foreseeable future and that
the Company's products are uniquely positioned to capitalize on this trend.
PROPRIETARY RIGHTS
PREMIS does not own any patents or any registered copyrights or trademarks;
PREMIS claims trademark protection of the names and marks "PREMIS
OpenEnterprise", "PREMIS OpenOffice", "PREMIS OpenNet", "PREMIS OpenStore", but
does not consider such marks to be material to its operations.
On August 14, 1998, PREMIS filed a Provisional Patent Application with the U.S.
Patent and Trademark Office titled: "Point-of-Sale System Having a Customizable
User Interface and Transaction Manager". This Provisional Patent Application
covers certain important features of the PREMIS OpenStore technology. Because
this is a provisional application, a regular application must be filed by
August 13, 1999 to maintain the ability to claim priority. The rights to this
provisional application will be transferred to the acquirer of PREMIS Systems
Canada, if such acquisition is approved by the PREMIS shareholders. Other
than the above application, PREMIS primarily relies on a combination of trade
secret laws and confidentiality agreements to protect its proprietary
technology.
EMPLOYEES
On February 4, 1999, the Board of Directors of the Company voted to propose the
liquidation of the Company to its shareholders. Liquidation would result in
the sale of the Company's assets and termination of the corporate existence.
This decision was subsequently amended by the Company's agreement with an
identified buyer for PSC and the prospect of obtaining shareholder value for
the corporate entity, subject to shareholder approval. On February 8, 1999,
the Company publicly announced the liquidation decision and reduced its staff
in Canada to 12 employees from 31. The remaining 12 employees in Canada
consisted of 9 development team members and 3 administrative personnel. The 9
development team members focused their efforts on specific development
initiatives to enhance the saleability of the Company's OpenEnterprise product
offering while maintaining the Company's two existing customers. The
administrative personnel focused their efforts on winding down various
administrative activities. The Company terminated all remaining development
and administrative staff in Canada on March 31, 1999. At May 1, 1999, the
Company had no employees in Canada and 4 full-time employees located in
Plymouth, Minnesota. The Company will continue to support existing
non-OpenEnterprise customers from the U. S. throughout the remaining wind down
process. No employee of the Company is represented by a labor union or is
subject to a collective bargaining agreement. All employees are covered by
agreements containing confidentiality provisions. The Company believes it
maintains good relations with its employees.
RECENT HISTORY AND COMPANY STRATEGY
Strategy
With the acquisition of REF Retail Systems Corporation ("REF") on October 1,
1996, the Company's strategy was to rapidly grow the Company and achieve and
secure a leadership position as a provider of enterprise-wide information
management systems. The Company's business strategy for attainment of its
objective was to provide innovative leading edge systems, expand the Company's
marketing and sales efforts to capitalize on first to market product
advantages, and pursue strategic acquisitions of complementary products and
service capabilities. However, as discussed below, the Company's recent
history has led the Board of Directors to re-evaluate this strategy and to
adopt a new strategy which involves termination of the Company's operations and
the exploitation of its software products through sale or licensing to others.
Recent History
In September 1996 (prior to the Company's acquisition of REF), REF entered into
a sub-contractor arrangement with NCR Corporation ("NCR") in support of the
United States Postal Service ("USPS") POS ONE project to upgrade point of sale
systems in various post office locations throughout the United States. Under
the subcontractor arrangement with NCR, the Company's OpenStore product
framework and architecture would serve as the foundation of the point of sale
system for the USPS. Just prior to the acquisition of REF by the Company, REF,
in conjunction with NCR, decided to make significant changes to the underlying
framework architecture of OpenStore in support of the USPS POS ONE project.
The changes to the framework were expected to enhance the marketability of the
commercial release of OpenStore. However, the time and effort devoted to these
changes resulted in significant delays in the commercial release of OpenStore,
which worked to the detriment of the Company's commercial prospects for
OpenEnterprise.
In August of 1998, to improve its cash flow and reduce the breath of its
product support obligations, the Company announced a software license agreement
with NCR, which amended the subcontract for the USPS POS ONE program (the "NCR
Agreement"). The NCR Agreement eliminated the Company's obligations under its
previous POS ONE subcontract with NCR and licensed the Company OpenStore
technology to NCR for use in the POS ONE project. The Company has received the
first of two payments of $3,250,000 under the NCR Agreement. The second
$3,250,000 payment (the "NCR Payment") is contingent upon award by the USPS of
Phase II of the POS One Project to NCR.
Two commercial contracts for the OpenEnterprise software were entered into in
1997 and 1998, and the Company had eight test sites operating at the end of
fiscal 1999. The prospects for revenues and additional commercial contracts in
fiscal 2000 are weak.
As a result of the initial delays encountered with the release of OpenStore,
discussed above, and other factors including the continued depletion of cash
reserves, the Company undertook a search for a corporate partner and/or a
purchaser of the Company. From April 1998 until February 1999, the Company,
with the assistance of an investment banking firm, engaged in an exhaustive and
unsuccessful search for a corporate partner and/or a purchaser of the Company.
On February 4, 1999, the Board of Directors of the Company voted to propose the
liquidation of the Company to its shareholders. On April 20, 1999 the Company
entered into an agreement, subject to shareholder approval, to sell all of its
stock in PREMIS Systems Canada ("PSC"), which has title to the OpenEnterprise
products, to ACA Facilitair, BV (ACA), a Netherlands company. In the event the
shareholders do not approve the stock purchase agreement, ACA will retain an
exclusive world wide license to the OpenEnterprise products.
Risk Factors Associated with Continued Operations
In adopting the Company's new business strategy, the Company's Board of
Directors and management carefully evaluated future financial projections,
including the effect of the following risk factors. Although future financial
projections are necessarily subject to assumptions, the financial scenarios
evaluated all indicated a significant short fall in required financial
resources by the end of fiscal 2000.
Significant New Capital Requirements. The Board of Directors of the Company
believes that to continue development, attract new customers and achieve market
acceptance of its products, the Company would require substantial new capital.
Continued Development and Installation of OpenEnterprise. The Company
estimates the continued development effort to ready the OpenEnterprise product
line could delay complete roll-out to its two current customer locations until
as late as October 1999.
Development of Direct Sales Force. As of February 4, 1999, the Company had no
direct sales force in place to market OpenEnterprise. The Company believes that
it would require substantial resources and time to attract and retain high
quality sales management and direct sales associates.
Marketing and Brand Recognition. The Company believes that significant
promotional and brand recognition expenditures would be necessary over the next
12 months to continue positioning the product.
Client Services and Support. The Company has determined that to support the
OpenEnterprise product line a significant investment in attracting, hiring and
training key management personnel, customer support associates and the
procurement of state of the art support tools is required.
Highly Competitive Market Place and Technological Obsolescence. The Company
believes as a result of the delays encountered with the development of
OpenEnterprise its product offerings (particularly in important areas such as
Internet commerce, alternative store applications, merchandising tools,
forecasting, gift registry and kiosk applications) have suffered and the
Company will be disadvantaged by its lack of new offerings in new sales
activity going forward.
Adoption Rate of New Technology. The Company's OpenEnterprise products are
Windows NT based end-to-end retail management software. The Company has
encountered a tendency to defer Windows NT adoption by many retailers, due to
the NT requirement that they purchase new hardware as well as the diversion of
available budgets and other resources to Year 2000 investigation and
remediation.
Cash Shortfall. Estimated capital requirements for activities discussed above
will exceed the capital resources available to the Company within the next 12
months.
ITEM 2. Description of Property.
The Company is headquartered in Plymouth, Minnesota. The Company occupies
premises at 13220 County Road 6, Plymouth Minnesota, pursuant to a lease,
effective January 1, 1999 with an unrelated limited liability partnership. The
lease provides approximately 7,000 square feet of space at a minimum monthly
base rent of $4,333. The lease has a 3 year term, ending December 31, 2001.
The Company has engaged a real estate firm to sublease this property as soon as
possible.
In the fiscal year ending March 31, 1999 the Company entered into agreements to
sub-lease previously occupied space in Canada to a third party and return the
remaining leased space to the landlord and has been released from all future
obligations. As of May 10, 1999 the Company has no remaining lease obligations
in Canada.
ITEM 3. Legal Proceedings.
In September 1997, the Company commenced legal proceedings against Robert E.
Ferguson, a former owner of REF Retail Systems Corp. ("REF"), which the Company
acquired on October 1, 1996, alleging breaches of the agreement to purchase REF
and related matters. The legal proceeding against Mr. Ferguson was filed in
the Ontario Court of Justice, General Division (Case No. 97-CV-132581). The
Company is seeking damages in an unspecified amount. The suit is in the
discovery stage of pretrial. The Company has provided for the funds to
litigate this suit in its liquidation plan.
ITEM 4. Submission or Matters to a Vote of Security Holders.
No matters were submitted to a vote of security holders during the fourth
quarter ended March 31, 1999.
PART II
ITEM 5. Market for Common Equity and Related Stockholder Matters.
MARKET INFORMATION
The following table sets forth, for the fiscal quarters indicated, a summary of
the high and low closing prices of the Common Stock. Prices for the period
from September 26, 1996 through July 17, 1998 are high and low closing sale
prices as reported by the Nasdaq National Market. The Company's Common Stock
was delisted from the Nasdaq National Market, effective the close of business
on July 17, 1998, for failure to satisfy the revised listing maintenance
standards adopted by The Nasdaq Stock Market, Inc. Prices for the periods
prior to September 26, 1996 and after July 17, 1998 represent high and low bids
as reported on the Over-the-Counter Bulletin Board system of the National
Association of Securities Dealers, Inc. (the "NASD"). Such bid information
reflects inter-dealer prices, without retail mark-up, mark-down, or commissions
and does not necessarily reflect actual transactions.
Common Stock
Low High
Fiscal 1997
First Quarter $2.125 $4.50
Second Quarter 3.00 5.125
Third Quarter 4.938 6.875
Fourth Quarter 2.625 6.25
Fiscal 1998
First Quarter $1.625 $3.25
Second Quarter 1.813 2.875
Third Quarter 1.438 2.25
Fourth Quarter .813 1.75
Fiscal 1999
First Quarter $1.125 $1.797
Second Quarter .75 1.406
Third Quarter .75 1.313
Fourth Quarter .375 1.00
As of May 10, 1999, the Company had 105 stockholders of record and
approximately 1,252 beneficial holders of its Common Stock.
The Company has never declared or paid any dividends on its Common Stock. The
Company currently does not anticipate paying any dividends in the foreseeable
future.
ITEM 6. Management Discussion and Analysis.
Results of Operations
REVENUE. The Company's revenues are divided into two categories: systems
revenues and maintenance fees and other revenues. Systems revenues are
comprised principally of software licenses and custom programming.
Maintenance and other service revenues are comprised principally of system
maintenance contracts. The Company records revenues from software licenses,
hardware and site installations upon the completion of services and customer
acceptance. Revenues under long-term system development contracts are
recognized over the period the Company satisfies its obligation using the
percentage-of-completion method of accounting. Progress on the contracts is
measured by the percentage of cost incurred to date to the total estimated cost
of each contract. Revenues derived from system maintenance contracts are
deferred and recognized ratably over the contract period, which is typically
twelve months.
Total revenues decreased by 8 percent to $5,466,000 during fiscal 1999, down
from $5,945,000 in fiscal 1998. Total revenues were generated primarily from
licensing point of sale software to NCR for the USPS POS ONE contract, and
maintenance contracts. The first of two payments of $3,250,000 under the NCR
license agreement was received in August of 1998. The second $3,250,000
payment is contingent upon award by the USPS of Phase II of the POS One Project
to NCR. Although management expects the award to be made in fiscal 2000, as of
this date such award has not been made and no date for decision has been
announced. As anticipated, other revenue sources continue to decline during
the transition from providing custom system development solutions to the
OpenEnterprise suite of products. Delays in the development of OpenStore
significantly impacted the Company's ability to generate revenues from its
OpenEnterprise suite of products in fiscal 1999.
In 1999 Company derived a substantial amount of its revenue from the NCR
license agreement and the remainder from a small number of customers. If the
plan to sell PSC is approved by the shareholders the revenues for fiscal 2000
will consist of software maintenance revenues from only a few remaining
non-OpenEnterprise customers and revenues from the note received from the sale
of the Advantage product line. If not approved by the shareholders, the
Company's revenues will consist of the revenues described above plus the NCR
Payment (if any) and a one time $1 million license fee paid by ACA.
GROSS PROFIT. Gross profit increased to $4,915,000 in fiscal 1999 down from
$2,484,000 in fiscal 1998. Gross profit as a percentage of revenue increased
to 89% in fiscal 1999 from 42% in fiscal 1998. The increase in margin as a
percentage of revenue is primarily attributable to receipt of the $3,250,000
NCR license payment, and a decrease in lower margin custom system development
contracts. If the plan to sell PSC is approved by the shareholders, the gross
margin percentage for fiscal 2000 is expected to be lower than in 1999 since
the NCR Payment to be received in this year (if any) will be a return of
capital from the sale of PSC stock.
SELLING, GENERAL AND ADMINISTRATIVE. Selling, general and administrative
expenses decreased by 33 percent to $2,089,000 in fiscal 1999, down from
$3,145,000 in fiscal 1998. As a percentage of revenue, these expenses were 38%
and 52% for fiscal 1999 and 1998, respectively. The decrease in absolute
dollars reflects reductions in selling, general and administrative
infrastructure during fiscal 1999.
RESEARCH AND DEVELOPMENT. Research and development expense for fiscal 1999 and
1998 was $1,887,000 and $1,780,000, respectively. The increased research and
development expenditures are related to the PREMIS OpenEnterprise suite of
products which include PREMIS OpenStore, PREMIS OpenOffice and PREMIS OpenNet.
NON-RECURRING EXPENSE. The Company incurred non-recurring charges in fiscal
1999 amounting to $1,224,000. These expenses are related to the decision by
the Company to seek shareholder approval to cease operations, dispose of the
Company's assets and distribute the remaining funds to the shareholders. The
expenses include severance pay for terminated employees, office lease
termination fees, note receivable write-down and other wind down expenses.
INTEREST AND OTHER INCOME. The difference in interest and other income between
periods reflects interest earned on investments, as well as interest earned on
the 5 year, 12% note receivable in the original amount of $651,000 related to
the licensing in fiscal 1997 of ADVANTAGE, the Company's Food Brokerage
Technology. Such note is due and payable in monthly installments of $14,481.
The interest income is off-set by interest expense on various debt instruments,
including the Company's building capital lease obligation.
INCOME TAX EXPENSE. The Company recorded an income tax benefit of $493,000
during fiscal 1999 compared to income tax expense $84,000 in fiscal 1998.
This one time benefit was primarily the result of carryback of net operating
losses.
Liquidity and Capital Resources
The Company's cash and cash equivalents increased by $1,422,000 from March 31,
1998 to March 31, 1999. The increase resulted primarily from the receipt of
the first NCR payment of $3,250,000. As of March 31, 1999, the Company had
working capital of $2,103,000.
On February 11, 1999, the Company authorized the open market repurchase of its
common stock at times and prices to be determined by management for a period of
90 days. As of May 10, 1999 the Company had repurchased 97,200 shares at a
cost of $62,449.
Year 2000 Compliance
Background. Some computers, software, and other equipment include programming
code in which calendar year data is abbreviated to only two digits. As a
result of this design decision, some of these systems could fail to operate or
fail to produce correct results if "00" is interpreted to mean 1900, rather
than 2000. These problems are widely expected to increase in frequency and
severity as the year 2000 approaches and are commonly referred to as the
"Millenium Bug" or "Year 2000 Problem".
Assessment. The Year 2000 Problem could affect computers, software, and other
equipment used, operated, or maintained by the Company. Accordingly, the
Company is reviewing its internal computer programs and systems to ensure that
the programs and systems will be Year 2000 compliant. The Company presently
believes that its computer systems will be Year 2000 compliant in a timely
manner. However, while the estimated cost of these efforts are not expected to
be material to the Company's financial position or any year's results of
operations, there can be no assurance to this effect.
Software Sold to Customers. The Company believes it has substantially
identified and resolved all potential Year 2000 Problems with any of the
software products which it currently develops and markets. Currently, the
Company only develops and markets software products which were originally
developed as Year 2000 compliant. However, management also believes that it is
not possible to determine with complete certainty that all Year 2000 Problems
affecting the Company's software products have been identified or corrected due
to complexity of these products and the fact that these products interact with
other third party vendor products and operate on computer systems which are not
under the Company's control.
The Company has previously installed custom software point of sale solutions
for retail customers which are not Year 2000 compliant. The Company has
discussed with customers options to modify these previously installed systems
to comply with Year 2000 requirements. However, the Company does not believe
it has any contractual obligation to provide such services to customers of
previously installed systems. Any Year 2000 work performed by the Company in
connection with previously installed systems is separately contracted for by
the customer. Rather than contracting with the Company for such services,
these customers may choose to purchase the source code to independently perform
Year 2000 work, or purchased alternative systems from other vendors. The
Company does not consider the Year 2000 obligation with respect to these
previously installed systems to be material to its business operations.
Internal Infrastructure. The Company believes that it has reviewed and
assessed all of the major computers, software applications, and related
equipment used in connection with its internal operations that would
potentially require modification, upgrade, or replacement to minimize the
possibility of a material disruption to its business. The Company's internal
review of such systems did not identify any material Year 2000 problems.
Systems Other than Information Technology Systems. In addition to computers
and related systems, the operations of office and facilities equipment such as
fax machines, photocopiers, telephone switches, security systems, and other
common devices may be affected by the Year 2000 Problem.
The Company estimates the total cost to the Company of completing any required
modifications, upgrades, or replacements of these internal systems will not
have a material adverse effect on the Company's business or results of
operations.
Based on the activities described above, the Company does not believe that the
Year 2000 Problem will have a material adverse effect on the Company's business
or results of operations or its sale of assets. The Company does not have a
comprehensive contingency plan with respect to the Year 2000 Problem and does
not plan to establish such a plan during calendar 1999 as part of its wind down
of operations.
Disclaimer. The discussion of the Company's efforts, and management's
expectations, relating to Year 2000 compliance are forward-looking statements.
The Company's ability to achieve Year 2000 compliance and the level of
incremental costs associated therewith, could be adversely impacted by, among
other things, the availability and cost of programming and testing resources,
vendors' ability to modify proprietary software, and unanticipated problems
identified in ongoing internal compliance reviews.
Inflation and Seasonality
To date, the Company has not been significantly impacted by inflation. The
Company's sales and revenues are not seasonal, except that the Company's target
customers, specialty retailers, generally will not install new critical
software applications like OpenEnterprise between Thanksgiving and New Years
Day.
Forward Looking Statements
Statements included in Management's Discussion and Analysis of Financial
Condition and Results of Operations, except for the historical information
contained herein, are forward-looking statements within the meaning of Section
21E of the Securities Exchange Act of 1934, as amended, and is subject to the
safe harbor created by that statute and may contain forward-looking statements
that are made in reliance upon the safe harbor provisions of the Private
Securities Litigation Reform Act of 1995. Actual results may be different than
those described in the forward looking statements. Future events involve risks
and uncertainties, among which are uncertainties related to the final closing
of the transactions described above and the Company's ability to formulate and
implement strategies to maximize shareholder value in light of its decision to
cease operations. Some of these risks and uncertainties are outside the
control of management. Readers are cautioned against placing undue reliance
on the forward looking statements due to these risks and uncertainties and are
cautioned to review the historical information and statements of risk contained
in the Company's Securities and Exchange Commission reports, including but not
limited to the Form 10-KSB for the year ended March 31, 1998, Fiscal 1999
quarterly reports on Form 10-QSB, and other documents filed with the Securities
and Exchange Commission.
ITEM 7. Financial Statements.
The information required by Item 7 is included in the PREMIS Corporation
Audited Financial Statements for the year ended March 31, 1999, which are
included as Exhibit 99.1.
ITEM 8. Changes in or disagreements with Accountants on Accounting and
Financial Disclosure.
Not Applicable.
PART III
ITEM 9. Directors, Executive Officers, Promoters and Control Persons;
Compliance With Section 16(a) of the Exchange Act.
Executive Officers and Directors:
F.T. Biermeier, Chairman, President and CEO, has been a Director of the
Company since its inception in April 1982. Since May of 1988, he has been
President and Chief Executive Officer. From June 1986 to May 1988, he was
Chairman and Chief Executive Officer. From April 1982 to June 1986, he was
President and Secretary. He also functions as the Company's Treasurer. From
1980 to 1983, he operated an independent management consulting firm, F.T.
Biermeier & Associates, Inc. From July of 1986 to January 1988, Mr. Biermeier
was President and Chief Executive Officer of Intran Corporation, a supplier of
imaging software to publishing organizations, and devoted part-time efforts to
the Company. Mr. Biermeier assumed the role of Chief Financial Officer of the
Company on April 4, 1999, effective with the resignation of Richard R.
Peterson. Mr. Biermeier is married to Mary Ann Calhoun, a Director and Vice
President of the Company.
Mary Ann Calhoun, Vice President and Secretary, has been a Director
and Vice President of the Company since June of 1986. From 1983 to 1986, she
held positions of Customer Support Representative, Manager Customer Support and
Director of Software Development and Customer Support of PREMIS. From 1980 to
1983, she held positions in the United States Senate office of Senator David
Durenberger, including Assistant to the Press Secretary and Manager of
Information Systems. Ms. Calhoun is married to F. T. Biermeier, a Director and
President of the Company.
Terrence W. Glarner, Director, has been a director since October 1997. Since
1993, Mr. Glarner has been President of West Concord Ventures, Inc. Mr.
Glarner also currently consults with Norwest Venture Capital, an entity
affiliated with Norwest Growth Fund, Inc. Prior to starting West Concord
Ventures, Inc., Mr. Glarner was President of North Star Ventures, Inc. from
1988 to February 1993, a firm which he joined in 1976. Mr. Glarner currently
serves as a director of Aetrium, Cima Labs, Datakey, and FSI, all of which are
publicly-held companies.
S. Albert D. Hanser, Director, was elected as a Director of the Company in
September 1996. He has served as Chairman of Hanrow Financial Group, Ltd., a
merchant banking firm since 1989; as chairman of Astrocom Corporation since
1992; and as chairman of Prevention First Inc. since 1997. Mr. Hanser is also
currently a member of the Boards of Directors of Hawkins Chemical, Inc. and E-Z
Gard Industries, Inc.
Gerald F. Schmidt, Director, has been a Director of the Company since June of
1986. Since 1989, Mr. Schmidt has been President and CEO of Cordova Capital,
Inc., a venture capital firm located in Atlanta, Georgia. Cordova Capital is
the General Partner in four growth funds with $92 million dollars under
management. From 1984 to 1988, he was a Senior Vice President and partner at
O'Neill Development Inc., a commercial real estate development firm in Atlanta,
Georgia. From 1966 to 1984, he held various positions in sales and marketing
management and was Vice President and General Manager of two divisions at
Jostens in Minneapolis, Minnesota.
Section 16(a) of the Securities Exchange Act of 1934 requires the Company's
executive officers and directors, and persons who beneficially own more than
ten percent of the Company's Common Stock, to file initial reports of ownership
and reports of changes in ownership with the Securities and Exchange Commission
(the "SEC"). Executive officers, directors and greater than ten percent
beneficial owners are required by the SEC to furnish the Company with copies of
all Section 16(a) forms they file.
Based solely on a review of the copies of such forms furnished to the Company
and written representations from the executive officers and directors, the
Company believes that all Section 16(a) filing requirements applicable to its
executive officers and directors were complied with, except that F. T.
Biermeier was delinquent in the filing of one Form 4 concerning the exercise of
an option. Such filing has now been completed.
ITEM 10. Executive Compensation.
Incorporated by reference to the Company's Proxy Statement for Annual Meeting
of Shareholders to be filed with the Securities and Exchange Commission on or
before June 28, 1999.
ITEM 11. Security Ownership of Certain Beneficial Owners and Management.
Incorporated by reference to the Company's Proxy Statement for Annual Meeting
of Shareholders to be filed with the Securities and Exchange Commission on or
before June 28, 1999.
ITEM 12. Certain Relationships and Related Transactions.
Incorporated by reference to the Company's Proxy Statement for Annual Meeting
of Shareholders to be filed with the Securities and Exchange Commission on or
before June 28, 1999.
ITEM 13. Exhibits and Reports on Form 8-K.
(a) Exhibits
The following exhibits are filed as part of this Annual Report on Form10-KSB
for the fiscal year ended March 31, 1999:
2.1 REF Stock Purchase Agreement dated July 9, 1996 (2)
3.1 Articles of Incorporation, as amended through June 1996 (1)
3.2 Amendment of Articles of Incorporation, dated July 17, 1996 (2)
3.3 Bylaws (1)
4.1 Form of certificate representing the Common Stock (2)
10.2 Stock Purchase Agreement dated April 20, 1999
10.3 Exclusive License Agreement dated April 20, 1999
21.1 Subsidiaries of the Registrant
23.1 Consent of PricewaterhouseCoopers LLP, independent accountants.
99.1 PREMIS Corporation Audited Financial Statements for March 31, 1999
and March 31, 1998.
(1) Incorporated by reference to exhibit filed as a part of Form S-18, SEC
File No. 2-85498-C.
(2) Incorporated by reference to exhibit filed as part of registration
statement on Form S-2, (SEC File No. 333-10917), effective on September 26,
1996.
(3) The registrant hereby undertakes to furnish supplementally a copy of any
omitted schedule or other attachment to the Securities and Exchange Commission
upon request
(b) REPORTS ON FORM 8K
News release regarding Board intent to seek shareholder approval to
liquidate the Company dated 2-08-99 filed on Form 8-K on 2-09-99.
SIGNATURES
Pursuant to the requirements of section 13 or 15(d) of the Securities Exchange
Act of 1934, as amended, the Registrant has duly caused this report to be
signed on its behalf by the undersigned, thereunto duly authorized.
PREMIS Corporation
/s/ F. T. Biermeier
___________________
F. T. Biermeier
(Principal Executive Officer)
Dated: June 7, 1999
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
registrant, and in the capacities on the dates indicated.
Signature Date
/s/ F. T. Biermeier June 7, 1999
_________________________
F. T. Biermeier
Chairman and Chief Executive Officer
/s/ Mary Ann Calhoun June 7, 1999
_________________________
Mary Ann Calhoun
Vice President and Director
/s/ Terrence W. Glarner June 7, 1999
_________________________
Terrence W. Glarner
Director
/s/ S. Albert D. Hanser June 7, 1999
_________________________
S. Albert D. Hanser
Director
_________________________
Gerald F. Schmidt
Director
EXHIBIT 10.2
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT (the "Agreement"), dated as of April 20, 1999, among
ACA Facilitair BV, a corporation organized under the laws of The Netherlands
("PURCHASER"), PREMIS Corporation, a Minnesota corporation ("SELLER") and
PREMIS Systems Canada Incorporated, a Nova Scotia Corporation ("PSC") which is
a direct wholly owned subsidiary of SELLER.
RECITALS
WHEREAS, PURCHASER wishes to acquire all of the outstanding capital
stock of PSC (formerly known as REF Retail Systems Corp.);
WHEREAS, by Order of Amalgamation of the Supreme Court of Nova Scotia the
Amalgamation Agreement between REF Retail Systems Corp. and PSC dated June 30,
1997 was confirmed and such companies were amalgamated and continue as PSC;
WHEREAS, PSC is authorized to issue 10,000,000 common shares, without nominal
or par value;
WHEREAS, SELLER, owns 100 common shares of PSC (the "PSC Shares"), which
comprise all of the issued and outstanding common shares of PSC;
WHEREAS, SELLER desires to sell, transfer and assign to PURCHASER, and
PURCHASER desires to purchase from SELLER, all of SELLER's PSC Shares for the
consideration and upon the terms and subject to the conditions set forth in
this Agreement;
WHEREAS, SELLER and PURCHASER have entered into an Exclusive Software License
Agreement to take effect upon the Initial Closing and to continue in perpetuity
if there is no Second Closing;
NOW, THEREFORE, in consideration of the premises and the mutual covenants,
conditions, representations and warranties set forth in this Agreement, and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
SECTION 1. PLAN OF ACQUISITION
1.1 ACTIONS TO BE TAKEN AT THE TIME OF THE INITIAL CLOSING. Upon
performance of all of the covenants and obligations of the parties contained
herein as required at the time of the Initial Closing and upon fulfillment (or
waiver) of all of the conditions to the obligations of the parties contained
herein and required at the time of the Initial Closing the following shall
occur:
(a) PURCHASER and PSC will execute the Exclusive Software License Agreement
between PURCHASER and PSC which is attached as Exhibit E to this
Agreement.
(b) PURCHASER and SELLER will execute the Escrow Agreement which is attached
as Exhibit A to this Agreement.
(c) PURCHASER will cause to be issued the Direct Payment Letter of Credit
which is attached as Exhibit B to this Agreement.
(d) PURCHASER will incorporate NEWCO, a direct and wholly owned subsidiary
of PURCHASER for the purpose of conducting its business affairs in
Canada. Until the time of the Second Closing, NEWCO will be assigned
all rights and obligations under the Exclusive Software License
Agreement which will terminate under the provision of Section 7.4.
(e) NEWCO shall reimburse PSC for expenses as set forth on Schedule M on a
monthly basis commencing on the date of the Initial Closing and
continuing to the date of the Second Closing.
(f) SELLER and PSC will execute the Assignment and Assumption Agreement
which is attached as Exhibit F.
(g) PURCHASER and F. T. Biermeier ("Biermeier") the president of SELLER and
a director and principal shareholder of SELLER, will execute the
Indemnity Agreement attached as Exhibit F to this Agreement.
PURCHASER and SELLER acknowledge that upon execution of this Agreement at the
Initial Closing that this Agreement will take full force and effect. Further,
the PURCHASER and SELLER acknowledge that the only condition required to be
satisfied and fulfilled from the time of the Initial Closing but prior to the
Second Closing is the authorization of the sale of the PSC Shares by SELLER's
shareholders.
1.2 ACTIONS TO BE TAKEN AT THE TIME OF THE SECOND CLOSING. Upon
performance of all of the covenants and obligations of the parties contained
herein and upon fulfillment (or waiver) of all of the conditions to the
obligations of the parties contained herein, at the time of the Second Closing
and pursuant to the General Corporation Law of the Province of Nova Scotia the
following shall occur:
(a) PSC shall be and remain a surviving corporation and a direct wholly owned
subsidiary of the PURCHASER or NEWCO. PURCHASER agrees to maintain the
separate corporate existence of PSC until such time that the NCR
Receivable is received by SELLER under the terms of the NCR Agreement.
SELLER shall have no obligation as to the income tax liability, if any,
resulting from the NCR Receivable.
(b) The Articles of Incorporation of PSC shall be and remain the certificate
of incorporation of PSC until amended as provided by law.
(c) The Bylaws of PSC shall be and remain the bylaws of PSC until amended as
provided by law.
(d) The current officers and directors of PSC shall resign and shall be
replaced by nominees of PURCHASER.
(e) The PURCHASER will cause an amount equal to the NCR Receivable, net of
the NCR Tax Liability, to be paid to SELLER as provided in Section 1.7
and Section 1.3(r). In addition, the PURCHASER will cause the NCR
Receivable to be assigned to SELLER as security if SELLER so requests.
(f) The Escrow Payment, the Escrowed LC, and the Escrowed Securities (as such
terms are defined below will be disbursed pursuant to the Escrow
Agreement.
(g) The PURCHASER, SELLER, PSC, and NEWCO will enter into a Supplemental
Escrow Agreement, as described in Section 1.7.
1.3 DEFINITIONS. For purposes of this Agreement, the following terms
shall have the following meanings:
(a) The term "PSC Shares" shall mean the 100 common shares of PSC owned
entirely by SELLER.
(b) The term "Initial Closing" shall mean the date of this Agreement.
(c) The term "Second Closing" shall mean the date immediately following the
date which SELLER obtains shareholder approval of the transaction covered
by this Agreement.
(d) The term "Escrow Payment" shall mean USD $100,000, which is the amount
which will be paid by PURCHASER at the Initial Closing to Excel Bank (the
"Escrow Agent") to be held in an escrow account (the "Escrow Fund") in
accordance with the terms of the Escrow Agreement (the "Escrow
Agreement") to be entered into between PURCHASER and SELLER and the
Escrow Agent in substantially the form attached hereto as Exhibit A with
such changes therein as may be requested by Escrow Agent and agreed to by
PURCHASER and SELLER.
(e) The term "Escrowed Securities" shall mean the PSC stock certificate
evidencing the PSC Shares duly endorsed by SELLER, the sole shareholder
of PSC, to PURCHASER or accompanied by duly executed stock assignments
acceptable to PURCHASER to be held in accordance with the terms of the
Escrow Agreement.
(f) The term "Escrowed LC" shall mean the Direct Payment Letter of Credit to
be held in accordance with the terms of the Escrow Agreement.
(g) The term "Second Payment" shall mean USD $900,000, which is the amount
which will be paid by PURCHASER at the Second Closing. At the Initial
Closing PURCHASER will provide an irrevocable direct payment letter of
credit representing the Second Payment.
(h) The term "Escrow Distributions" shall mean payment(s), if made, which are
made out of the Escrow Fund for distribution to SELLER.
(i) The term "Total Payment" shall mean the sum of the Escrow Payment,
Second Payment and Final Payment.
(j) The term "Claim" shall mean the actual commencement of court or, in the
alternative, arbitration procedures respecting any matters in dispute.
(k) The term "USD" shall mean currency denominated in United States dollars.
(l) The term "SELLER's Purchase Documents" shall mean agreements, instruments
and certificates to be delivered by SELLER pursuant to this Agreement.
(m) The term "NCR Receivable" shall mean the payment of USD $3,250,000
payable under an agreement (the "NCR Agreement") dated August 3, 1998,
between SELLER, PSC and NCR Corporation. The payment is contingent upon
certain conditions being met as described in the NCR Agreement and
attached as Exhibit C to this Agreement.
(n) The term "Exclusive Software License Agreement" shall mean the license
agreement between PURCHASER and PSC dated the same date as the Initial
Closing and as attached as Exhibit E.
(o) The term "Special Meeting" shall mean the special meeting of shareholders
of SELLER to consider and act upon the proposal to sell the PSC Shares to
PURCHASER.
(p) The term "NEWCO" shall mean a direct wholly owned subsidiary of PURCHASER
organized under the laws of the Province of Nova Scotia.
(q) The term "CND" shall mean currency denominated in Canadian dollars.
(r) The term "Final Payment" shall mean the amount equal to the NCR
Receivable less the NCR Tax Liability arising out of the NCR Receivable,
if any. A promissory note representing the Final Payment shall be
delivered at the Second Closing (the "Note"). In the event the NCR
Receivable is not paid pursuant to the terms of the NCR Agreement as part
of this Agreement, no Final Payment is due SELLER.
(s) The term "PSC Debt" shall mean the amount owed by PSC to SELLER as set
forth and further defined in Schedule K. SELLER hereby waives its rights
of collection of the amounts due if any, by PSC to SELLER in the event
the NCR Receivable is not received by SELLER.
(t) The term "NCR Tax Liability" shall mean the income tax liability owed by
PSC as a direct result of the PSC income generated by the NCR Receivable,
as calculated under Section 1.7. The NCR Tax Liability shall be
calculated as part of the change of control income tax return, and shall
reflect the utilization of all tax attributes referred on Schedule G to
reduce the tax owed. Such tax attributes shall include, but not be
limited to, net operating loss carryforwards and research and development
carryforward credits. The amount owed for such income tax liability
shall not be increased as a result of the PURCHASER's or NEWCO's direct
or indirect action or inaction having caused the elimination, limitation
or restriction of the utilization of tax attributes as set forth in
Schedule G, including net operating loss carryforwards and research and
development credit carryforwards.
1.4 AGREEMENT TO PURCHASE AND SELL PSC SHARES. Effective with the
Second Closing, SELLER hereby sells, assigns and transfers to PURCHASER and the
PURCHASER agrees to purchase, all of the PSC Shares, whether now owned or
hereafter acquired prior to the Closing, free and clear of all liens, proxies,
pledges, claims and encumbrances, of any kind, nature or description, for the
consideration set forth in Section 1.7 of this Agreement.
1.5 TRANSFER OF SHARES. The transfer of the PSC Shares pursuant to this
Agreement shall be accomplished by deposit with the Escrow Agent at the Initial
Closing, for delivery at the Second Closing, of a certificate evidencing the
PSC Shares duly endorsed by SELLER, the sole shareholder of PSC, to PURCHASER
or accompanied by duly executed stock assignments acceptable to PURCHASER. At
any time, and from time to time, upon request of the PURCHASER after the Second
Closing, SELLER shall duly execute, acknowledge and deliver, without further
consideration, all such further documents, and take all such other action
consistent with this Agreement, as shall be necessary to effectuate the
transfer of the PSC Shares as provided herein free of all liens, proxies,
pledges, claims and encumbrances of any kind, nature or description.
1.6 RESTRICTIONS RELATING TO SHARES. Upon the signing of the
Agreement, and until the Second Closing, SELLER hereby agrees that it shall
not, without the prior written consent of PURCHASER which consent may be
withheld in PURCHASER's absolute discretion, take or permit to be taken any of
the following actions by SELLER or PSC:
(a) Sell, transfer, assign or otherwise dispose, or agree to sell, transfer,
assign or otherwise dispose of, the PSC Shares or any interest therein,
in whole or in part, except to PURCHASER as contemplated in this
Agreement;
(b) Grant, or agree to grant, any lien, proxy, pledge, claim and/or
encumbrance of any kind, nature or description, on the PSC Shares or any
interest therein to any person or entity;
(c) Take any action, as a shareholder of PSC, that is inconsistent with the
provisions, restrictions, covenants, agreements, representations or
warranties contained in this Agreement; or
(d) Take any action which would reduce the value of the OpenEnterprise
software products owned by PSC.
1.7 PURCHASE PRICE. The aggregate purchase price to be paid by
PURCHASER to SELLER in full consideration for all of the PSC Shares shall be
(the "Total Payment") comprises (a) the Escrow Payment of $100,000, (b) the
Second Payment via the Escrowed LC of $900,000 and (c) the Final Payment, which
is equal to the amount of the NCR Receivable net of the NCR Tax Liability and
is evidenced by the Note (as defined in Section 1.3(r)). SELLER shall satisfy
the PSC Debt, on the final balance sheet indicated in Schedule F, in full from
its receipt of cash in satisfaction of the Final Payment.
As soon as reasonably possible and in any event prior to July 1, 1999,
PriceWaterhouse/ Coopers, Minneapolis, at the request of SELLER and PSC, shall
audit the financial statements of PSC for the fiscal years ending March 31,
1997, 1998 and 1999, and will issue audited statements and its audit report
(the "PWC Audit Report"). The tax department of PriceWaterhouse/Coopers,
Toronto, ("PWCT") will amend and refile PSC's March 31, 1997 and 1998 tax
returns based on the audited financial statements, if necessary, and will
prepare and file PSC's March 31, 1999 tax returns based upon the audited
statements. PWCT will also prepare estimated Canadian Federal and Provincial
tax returns (the "Estimated Returns") as of the date of the Second Closing, (i)
assuming receipt of the NCR Receivable, whether or not it has been received,
(ii) utilizing the investment tax credits audited by Revenue Canada, the
carry-forward losses set forth in the PWC Audit Report, and all net
income/loss amounts from April 1, 1999 to the Second Closing (based on
PSC-prepared financial statements) and (iii) assuming the investment tax
credits claimed are taxable in this period. PWCT will also provide a letter
(the "PWCT Letter") addressed to the PURCHASER and the SELLER, advising
the SELLER and the PURCHASER that the NCR Tax Liability as set forth
in the Estimated Returns is accurate, taking into account the information
provided and the assumptions used in creating the Estimated Returns. If the
combined federal and provincial tax liability as set forth in the Estimated
Returns indicates a net payment due (i.e. the "NCR Tax Liability"),
SELLER, PURCHASER, PSC, and NEWCO will enter into a supplemental escrow
agreement (the "Supplemental Escrow Agreement") which shall provide for
payment of the NCR Receivable to the escrow agent and disbursement, within five
(5) days after receipt: to PURCHASER, in the amount of the NCR Tax Liability;
and to SELLER, in the amount of the balance. In the event that the NCR
Receivable is paid prior to the Second Closing, SELLER shall notify PURCHASER
within two (2) business days thereafter and the parties shall make appropriate
adjustment in settlement of funds at the Second Closing in order that the NCR
Tax Liability and the Final Payment shall be satisfied.
Upon compliance with the foregoing and after the Second Closing, SELLER will
have no further obligation as to any tax liability of PSC or any assessments,
fines, penalties, audits, or recomputations related to it.
Notwithstanding anything to the contrary set forth in this Agreement or in the
ancillary agreements appended to this Agreement, (i) SELLER shall have no
obligation to proceed with the sale of the PSC shares to PURCHASER if the NCR
Tax Liability as determined by PWCT exceeds $200,000 CDN, notwithstanding
approval of the sale of the PSC shares by SELLER's shareholders; and (ii)
PURCHASER shall have no obligation to proceed with the purchase of the PSC
Shares if the NCR Tax Liability exceeds $2.5 million CDN. In such events, the
SELLER or PURCHASER, as applicable, may give written notice to the other party
of its election not to proceed and this Agreement shall terminate. In the event
of such termination by either party, the Exclusive License Agreement shall be
retained by PURCHASER upon payment of the license fee referred to in such
Exclusive License Agreement. Exercise by SELLER or PURCHASER of its option
to not sell or purchase the PSC shares, as described in this Section 1.7,
shall not be wrongful or constitute a breach of this Agreement.
The NCR Receivable shall be made payable to and paid to SELLER, if the
Estimated Returns show no NCR Tax Liability, or to the Escrow Agent, in the
event that the Estimated Returns indicate that there is an NCR Tax Liability
(provided however that if SELLER or PURCHASER elects to terminate on the basis
of the amount of the NCR Tax Liability the NCR Receivable shall be made payable
to and paid to Seller).
1.8 CLOSING. Subject to the terms and conditions contained herein, the
Initial Closing of the transaction contemplated by this Agreement shall be held
at such place and/or time as PURCHASER and SELLER may agree. The Second
Closing shall be held at the law offices of Moss & Barnett, 4800 Norwest
Center, Minneapolis, Minnesota, USA (i) not later than the second business day
following the date of the conditions set forth in this Agreement shall be
fulfilled or waived in accordance with this Agreement or (ii) at such other
place and/or time and/or on such other date as PURCHASER and SELLER may
mutually agree. At the Initial Closing or Second Closing, as appropriate, the
parties hereto shall deliver the documents contemplated hereby together with
such other customary documents as may be reasonably requested by the parties.
1.9 CLOSING DELIVERIES BY SELLER and PSC. Subject to the terms and
conditions contained in this Agreement, SELLER and/or PSC shall make the
following deliveries to the PURCHASER at the Second Closing:
(a) Stock certificates representing the PSC Shares, duly endorsed by SELLER,
or accompanied by duly executed stock powers;
(b) Resignations executed by each of the officers and directors of PSC;
(c) Stock record books, minute books and corporate seals, if any, of PSC in
the possession of the SELLER and/or PSC;
(d) All files, books, records, contracts, correspondence and other property
of PSC in the possession of SELLER or PSC. Provided however that SELLER
and/or PSC shall be entitled to post closing access to such books and
records as may be necessary to file tax returns and otherwise comply with
applicable regulations;
(e) A copy of the Articles of Incorporation of PSC, certified by the
appropriate official of the Province of Nova Scotia, containing no
restrictions on the ability of the holder of the PSC Shares to govern and
control all aspects of PSC, and a certificate of good standing for PSC
issued by the appropriate official of the Province of Nova Scotia and
Ontario, and of any other jurisdiction where PSC is, or is required to
be, qualified to do business as a foreign corporation, each dated within
ten (10) days prior to the Second Closing date.
(f) A copy of the Bylaws of PSC certified by the Secretary of such
corporation to be true, correct and complete as of the date of the Second
Closing, and containing no restrictions on the ability of the holder of
the PSC Shares to govern and control all aspects of PSC;
(g) A Certificate duly executed by SELLER and/or PSC, dated the Second
Closing date, to the effect that (i) the representations and warranties
of the SELLER and/or PSC contained herein are true, correct and complete
as of the Second Closing, (ii) all of the obligations and actions to be
performed by SELLER and/or PSC prior to the Second Closing have been
performed; and (iii) SELLER and/or PSC has not breached or defaulted on
the SELLER and/or PSC agreements and covenants hereunder prior to and
including the Second Closing date; and
(h) A Section 116 certificate issued pursuant to the Income Tax Act of Canada
(the "ITA"), or provision for payment of the required withholding to
Revenue Canada in accordance with Schedule R attached hereto.
(i) An opinion of counsel to SELLER to the effect that this Agreement
and the Escrow Agreement have been duly authorized, executed, and
delivered by SELLER, and are enforceable against SELLER in accordance
with their terms, subject to customary limitations on enforceability
under (A) laws concerning insolvency, bankruptcy, moratorium, and rights
of creditors generally and (B) judicial limitations on the right of
specific performance and equitable remedies generally("Enforceability
Limitations").
(j) The executed Supplemental Escrow Agreement, as defined in Section
1.7.
(k) The PWC Audit Report and PWCT Letter, as defined in Section 1.7.
1.10 CLOSING DELIVERIES BY PURCHASER. Subject to the terms and
conditions contained in this Agreement, PURCHASER shall make the following
deliveries to the SELLER at the Second Closing:
(a) A certificate duly executed by PURCHASER, dated the date of the Second
Closing, to the effect that (i) the representations and warranties of the
PURCHASER contained herein are true, correct and complete as of the
Second Closing; (ii) all of the obligations and actions to be performed
by the PURCHASER between the date of this agreement and the Second
Closing have been performed; and (iii) PURCHASER has not breached or
defaulted on PURCHASER's agreements and covenants hereunder prior to and
including the Second Closing.
(b) An opinion of counsel of PURCHASER to the effect that this Agreement and
the Escrow Agreement have been duly authorized, executed, and delivered
by PURCHASER and are enforceable against PURCHASER in accordance with
their terms, subject to the Enforceability Limitations(as defined in
subsection 1.9(i), above).
(c) The executed Supplemental Escrow Agreement, as defined in Section 1.7.
(d) If SELLER elects to proceed to the Second Closing without a Section 116
certificate, such executed agreements as may be reasonably requested by
SELLER to implement the procedures referenced on Schedule R.
(e) The Note, as defined in Section 1.3(r).
1.11 CONDITIONS PRECEDENT TO PURCHASE OF PSC SHARES. The obligations of
PURCHASER to consummate the purchase of the PSC Shares at the Second Closing
shall be subject to the following conditions, any or all of which may be waived
in writing by the PURCHASER on or before the Second Closing:
(a) The PSC Shares shall be owned of record and beneficially by the SELLER or
subject to its control and direction and shall be free and clear of any
and all liens, proxies, pledges, claims and encumbrances of any kind,
nature or description including any non-possessory security interests;
(b) SELLER and PSC shall have performed all obligations and agreements and
complied with all covenants and conditions contained in this Agreement on
SELLER's and PSC's part to be performed or complied with at or prior to
the Second Closing;
(c) The representations and warranties of the SELLER and PSC contained in
this Agreement shall be true, correct and complete in all respects on and
as of the Second Closing with the same force and effect as though made
on and as of the Second Closing;
(d) As of the Second Closing, SELLER and PSC shall have obtained the approval
of SELLER's shareholders and the board of directors of SELLER and PSC for
the sale of the PSC Shares to PURCHASER.
(e) As of the Second Closing, no claim, action, suit, proceeding,
arbitration, investigation or hearing or notice of hearing shall be
pending or threatened against SELLER that might result in an action to
enjoin or prevent the consummation of the transactions contemplated in
this Agreement;
(f) As of the Second Closing, SELLER shall have obtained the consent of any
governmental authorities in Canada and the United States of America that
may be required for SELLER and/or PSC to consummate the transaction;
(g) Revenue Canada shall have completed its audit of the PSC investment tax
credits and shall have issued its findings.
(h) As of the Second Closing, PriceWaterhouse/Coopers, Minneapolis shall have
completed its audit of PSC and delivered the PWC Audit Report; PWCT shall
have delivered the PWCT Letter, filed tax returns for PSC through
March 31, 1999, and determined the NCR Tax Liability; and SELLER and
PURCHASER shall each have waived, in writing, its further rights under
Section 1.7 to not proceed with the Second Closing based on the results
of such audit and determination.
In the event the SELLER or PSC is in breach or default of any of the conditions
contained in this Section 1.11 as of the Second Closing, and such breach or
default has not been waived in writing by the PURCHASER, PURCHASER may, at its
option and sole discretion exercise the remedies set forth in Section 7 of this
Agreement.
1.12 CONDITIONS PRECEDENT TO SALE OF PSC SHARES. The obligations of
SELLER and PSC to consummate the sale of the PSC Shares at the Second Closing
shall be subject to the following conditions, any or all of which may be waived
in writing by the SELLER or PSC on or before the Second Closing:
(a) PURCHASER shall have performed all obligations and agreements and complied
with all covenants and conditions contained in this Agreement on
PURCHASER's part to be performed or complied with at or prior to the
Second Closing;
(b) The representations and warranties of PURCHASER contained in this
Agreement shall be true, correct and complete in all respects on and as
of the Second Closing with the same force and effect as though made on and
as of the Second Closing;
(c) As of the Second Closing, no claim, action, suit, proceeding, arbitration,
investigation or hearing or notice of hearing shall be pending or
threatened against PURCHASER that might result in an action to enjoin or
prevent the consummation of the transactions contemplated in this
Agreement;
(d) As of the Second Closing, SELLER shall have obtained the consent of any
governmental authorities in Canada and the United States of America that
may be required for SELLER and/or PSC to consummate the transaction;
(e) As of the Second Closing, SELLER and PSC shall have obtained the approval
of SELLER's shareholders and the board of directors of SELLER and PSC for
the sale of the PSC Shares to PURCHASER.
(f) As of the Second Closing, PriceWaterhouse/Coopers, Toronto shall have
completed its audit of PSC and delivered the PWC Audit Report; PWCT shall
have delivered the PWC Letter, filed tax returns for PSC through March 31,
1999, and determined the NCR Tax Liability; and SELLER and PURCHASER shall
each have waived, in writing, its further rights under Section 1.7 to not
proceed with the Second Closing based on the results of such audit and
determination.
(g) Revenue Canada shall have completed its audit of the PSC investment tax
credits and shall have issued its findings.
In the event the PURCHASER is in breach or default of any of the conditions
contained in this Section 1.12 as of the Second Closing, and such breach or
default has not been waived in writing by the SELLER, SELLER may, at its option
and sole discretion exercise the remedies set forth in Section 7 of this
Agreement.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF SELLER AND PSC
2.1 REPRESENTATIONS AND WARRANTIES OF SELLER AND PSC. As a material
inducement to the PURCHASER entering into this Agreement, the SELLER makes the
representations and warranties set forth in this Section 2, in each case as of
the date of this Agreement and the Second Closing, unless otherwise
specifically provided.
2.2 SELLER'S TITLE TO PSC SHARES; CAPITAL STRUCTURE. The SELLER is the record
and the beneficial owner and holder of the PSC Shares, including, without
limitation, all voting power and investment power with respect to the PSC
Shares, or the PSC Shares are subject to SELLER control and direction and are
free and clear of all liens, security interests, pledges, restrictions,
encumbrances, equities, claims, charges, voting agreements, voting trusts,
proxies and rights of any kind, nature or description, whatsoever
(collectively, "Encumbrances"); SELLER has full legal right and power and all
authorizations and approvals required by law including all resolutions and
consents of the directors of PSC, to sell, transfer and deliver the PSC Shares
as contemplated hereunder, and to make the representations, warranties and
agreements made hereunder, and upon consummation of the transactions
contemplated herein, the PURCHASER shall receive good and marketable title to
the PSC Shares free and clear of all Encumbrances. The PSC Shares constitute
all of the issued and outstanding capital stock of PSC, and there are no
options, warrants, convertible securities, debt securities or the like issued
or outstanding or through which any party could acquire capital stock in PSC.
All of the PSC Shares have been duly authorized, validly issued, fully paid and
are non-assessable.
2.3 CORPORATE EXISTENCE AND POWER. PSC is a corporation duly organized,
validly existing and in good standing under the laws of the Province of Nova
Scotia, and is qualified or licensed to do business in good standing in each
jurisdiction in which the property owned, leased or operated by it or the
nature of the business conducted by it makes such qualification or licensing
necessary. PSC has all requisite corporate power and authority to own, lease
or operate its properties and assets, and to carry on its business as now being
conducted or operated.
2.4 AUTHORIZATION. This Agreement has been duly executed by SELLER and
PSC, and this Agreement and all agreements, instruments and certificates to be
delivered by SELLER and/or PSC pursuant to this Agreement (hereafter referred
to as the "SELLER's Purchase Documents") constitute the valid and legally
binding obligations of SELLER, enforceable against SELLER, in accordance with
its terms, subject to the approval of SELLER's shareholders. SELLER has
obtained all necessary authorizations, consents and approvals, governmental and
otherwise, required for the execution and delivery of this Agreement and
SELLER's Purchase Documents and performance of SELLER's obligations hereunder
and thereunder, subject to the approval of SELLER's shareholders.
2.5 NO RESTRICTIONS. The execution, delivery and performance of the
SELLER's Purchase Documents by SELLER in accordance with their respective terms
will not, with or without the giving of notice or the passage of time, or both,
conflict with, result in a default, right to accelerate or material loss of
rights under, or result in the creation of any lien or encumbrance, or require
the consent of any third party or governmental authority, pursuant to (i) any
provision of the articles of incorporation or bylaws of PSC as of the date
hereof, or (ii) any law, statute or regulation, judgment, order, writ,
injunction, or decree applicable to the SELLER or PSC, or (iii) any franchise,
mortgage, loan agreement, indenture or deed of trust or any lease, license,
agreement, security agreement, security interest, or any law, rule, regulation,
order, judgment or decree to which SELLER or PSC is a party or by which any of
them or any of the assets of PSC may be bound, subject to or affected.
2.6 BURDENSOME AGREEMENTS. The SELLER and the PSC Shares are not, and
neither PSC nor its assets, properties or businesses are, subject to or bound
or affected by any charter, bylaw or other corporate or contractual restriction
or any order, judgment, decree, law, statute, ordinance, rule, regulation or
other restriction of any kind or character which would or could (i) prevent
SELLER from entering into the SELLER's Purchase Documents or from consummating
the transactions contemplated herein, or (ii) materially and adversely affect
the PSC Shares or PSC's assets, properties, businesses, prospects or condition,
financial or otherwise.
2.7 SUBSIDIARIES. PSC does not own any interest, directly or
indirectly, in any other corporation, joint venture or entity. PSC is not
subject to any requirement or obligation to provide funds to, or invest in, any
other entity.
2.8 FINANCIAL INFORMATION AND STATEMENTS. All of the financial information
relating to PSC's business (the "Financial Information") provided by SELLER or
PSC in writing to PURCHASER prior to the date of this Agreement and the Second
Closing are true, correct and complete and are a fair and accurate presentation
of the results of the operations and the financial condition of PSC for all
periods and dates indicated therein. The Financial Statements of PSC
identified on Schedule F and heretofore provided by SELLER or PSC to PURCHASER
(the "Financial Statements") are true, correct and complete in all material
respects and fairly present the financial position of PSC as of the dates and
for the periods shown on such financial statements.
No event has occurred since the date of the most recent Financial Statements
that would have a material adverse effect upon the foregoing. The Financial
Statements do not contain any untrue statement of any material fact and do not
omit to state any material fact necessary in order for the statements contained
in this Agreement to be misleading. Further, the balance sheet as set forth as
Schedule F at the Second Closing will list no liabilities other than the PSC
Debt and any tax liability created as a result of the receipt of the NCR
Receivable.
2.9 ABSENCE OF UNDISCLOSED LIABILITIES. Except as set forth in Schedule
N, the Financial Statements as provided in Section 2.8 above, make full and
complete disclosure and provision for all material obligations, liabilities or
commitments (fixed and contingent) of PSC. Except as reserved against in the
Financial Statements and set forth in Schedule N, PSC had no liabilities or
obligations, whether accrued, absolute or contingent and PSC has no debt,
liability or obligation to SELLER, except as set forth in Schedule K.
2.10 TITLE TO ASSETS. PSC owns and has good and marketable title to the
all of the assets as set forth in the Financial Statements, including but not
limited to source code, object code, data base schema, product documentation
and user manuals for its PREMIS Open Enterprise products, and none of PSC's
assets are subject to any security interest, mortgage, pledge, lien or
conditional sales agreement, encumbrance or any material adverse claim of any
nature whatsoever. Except as set forth in Schedule C, no material personal
property assets of PSC reflected in the Financial Statements has been sold or
disposed of since the date of the Financial Statements.
2.11 PAYMENT OF TAXES. Except as set forth in Schedule G, PSC has filed
all tax returns, reports and related information (collectively, the "Returns")
required to have been filed by PSC under any applicable law prior to the date
hereof, and will have filed all Returns required to have been filed by PSC as
of the Second Closing, and no waiver of the applicable statute of limitations
or extension of the time for filing a Return or paying such tax is presently or
will be as of the Second Closing in effect. The Returns filed contain no
material misstatements or omissions, and all taxes referenced in such Returns
have been paid. Neither SELLER nor PSC has any knowledge, whether actual or
constructive, of any facts which would or could constitute grounds for the
assessment of any additional taxes by any taxing authority except as set forth
in Schedule G.
2.12 CONDITION OF ASSETS; ACCOUNTS RECEIVABLE. As of the date hereof,
all of the tangible assets of PSC have been properly maintained in accordance
with normal and customary business practice and are in good working order and
condition, reasonable wear and tear excepted. PSC is not now nor has PSC ever
been, the owner of real property. The accounts receivable included on the
Financial Statements, if any, represent valid obligations, arose from bona fide
transactions, and to the knowledge of SELLER, are current and collectible.
SELLER believes that the reserve for bad debts shown on the Financial
Statements, if any, is adequate and consistent with generally accepted
accounting principles.
2.13 ABSENCE OF CERTAIN CHANGES OR EVENTS. Since March 31, 1999, PSC
has not:
(i) incurred any material obligation or liability, absolute, accrued,
contingent or otherwise, whether due or to become due, except in a
manner in the ordinary course of business and consistent with prior
practices, or incurred any obligation to SELLER;
(ii) sold, transferred, leased to others or otherwise disposed of any
material
assets, except in a manner in the ordinary course of business and
consistent with prior practices and as set forth in Schedule C and
Schedule O;
(iii) suffered any damage, destruction or loss (whether or not covered by
insurance) which, in any case or in the aggregate, has had or might
reasonably be expected to have, a material adverse effect on PSC's
condition (financial or otherwise), properties, assets, liabilities or
operations;
(iv) had any material change in its relations with its substantial customers
or suppliers;
(v) except as noted in Schedule C, transferred or granted any rights under,
or entered into any settlement regarding the breach or infringement of,
any license, trademark, trade name, or similar right, or modified any
existing rights with respect thereto;
(vi) suffered any other change, event or condition which, in any case or in
the aggregate, has had or is reasonably expected to have a material
adverse effect on PSC's condition (financial or otherwise) or its
business, operations or assets;
(vii) conducted PSC's business and operations in a manner other than in
substantially the same manner in which it has theretofore been
conducted;
(viii) except as noted in Schedule C, cancelled or compromised any receivable
or claim of PSC, or waived or released any of PSC's respective rights
of any material value;
(ix) issued, granted or sold, or agreed to issue, grant or sell, any capital
stock of PSC, or any convertible securities, debt securities, rights
with respect to securities, or other securities of PSC;
(x) deferred the payment of any expense or liability, or prepaid any expense
or liability, in anticipation of the consummation of the transactions
contemplated in this Agreement.
2.14 PERMITS AND LICENSES. There are no permits, licenses or franchises
issuable by governmental agencies which are necessary in connection with the
business of PSC or ownership of its assets other than those listed on Schedule
P. All of the Permits, if any, are, as of the date hereof and the Second
Closing, in full force and effect, no suspension or cancellation has been
threatened and no cause for such cancellation or suspension exists, and, no
consent of any issuer or grantor of a Permit is required in connection with the
execution and delivery of SELLER's Purchase Documents or the consummation of
the transactions contemplated herein which has not been obtained by the SELLER
as of the Closing.
2.15 COMPLIANCE WITH LAWS. The business and operations of PSC have been
conducted in accordance and in compliance with all applicable laws, ordinances,
rules and regulations of all authorities. Neither the SELLER nor PSC has
received any notice of violation of any such laws, ordinances, rules or
regulations.
2.16 TRADE NAME AND TRADEMARK. PSC owns its business trade name and any
trademarks in which it may have rights under applicable law, and no person,
firm, corporation or other entity is entitled to restrain PSC from using such
name. Neither SELLER nor PSC has received any notice claiming that PSC is
infringing upon or otherwise acting adversely to any copyrights, trademarks,
service marks, trademark rights, trade names, patents, patent rights, licenses
or trade secrets allegedly owned by any person, firm, corporation or other
entity.
2.17 TRADE SECRETS AND CUSTOMER LIST. PSC has the right to use, free
and clear of any claims or rights of others, all trade secrets and customer
lists included in its respective assets. PSC is not in any way making use of
any confidential information or trade secrets of any third party in connection
with its business.
2.18 LITIGATION; LAWS. Except as set forth in Schedule B of this
Agreement, there is no claim, legal action, arbitration, governmental
investigation or other legal or administrative proceeding, nor any other decree
or judgment (collectively, "Litigation") in progress, pending or in effect, or
threatened, against or relating to SELLER or PSC, or PSC's respective assets,
business or operations, or to the transactions contemplated by the SELLER's
Purchase Documents, and neither SELLER nor PSC knows, or has any reason to
know, of any basis for the same.
2.19 DISCLOSURE. No representation or warranty by SELLER contained in
this Agreement, and no information heretofore provided to the PURCHASER, or
contained in the Financial Information or any other instrument or document
furnished to PURCHASER pursuant to this Agreement or in connection with the
transactions contemplated hereby, contains any untrue statement of a material
fact or omits to state a material fact necessary in order to make the
statements contained therein not misleading. The recitals to this Agreement
shall be deemed to be representations and warranties of the SELLER hereunder.
2.20 LEASED REAL PROPERTY. Except as set forth in Schedule O , PSC has
no obligations regarding leased real property.
2.21 SELLER's EMPLOYEES. Except as set forth in Schedule E , PSC does not have
any employment or non-competition agreements with any of its directors,
officers or employees and each of its employees is employed "at will" and may
be terminated at any time, with or without cause. PSC is not a party to any
collective bargaining agreement and no proposals have been made to negotiate or
enter into any collective bargaining agreement in connection with PSC's
business. PSC is in compliance with all applicable laws respecting employment
and employment practices, terms and conditions of employment, and wages and
hours, and is not engaged in any unfair labor practices. There is no
unfair labor practice or discrimination complaint against PSC pending
before or threatened before the Ministry of Labour or any other board,
department, commission, or agency; nor does any basis therefor exist; and there
is no labor strike, dispute, grievance, controversy or other labor trouble
pending or threatened, affecting PSC nor does any basis therefor exist. PSC
has withheld all material amounts required by law or agreement to be withheld
from the wages or salaries of its employees prior to the date of this Agreement
and the Closing, and is not liable for any material arrears of wages or any
material taxes or penalties for failure to comply with any of the foregoing.
2.22 EMPLOYEE BENEFITS. PSC has no accrued obligations, whether arising
by operation of law, by contract or by past custom, for payments to trusts or
other funds or to any governmental agency, with respect to unemployment
compensation, social security, pension or any other benefits for its employees
as of the date hereof and the Initial Closing, except as set forth on Schedule
D and E. All reasonably anticipated obligations of PSC (whether arising by
operation of law, by contract or by past custom) for salaries, vacation and
holiday pay, bonuses and other forms of compensation which were or as of the
date of this Agreement or the Second Closing are payable to PSC's employees
have been included in the Financial Statements, have been paid or will be
provided for in accordance with Schedule E. Except as set forth on Schedule D
and E hereto, PSC does not maintain any pension, retirement, disability,
medical, dental, or other death benefit plan, profit sharing, deferred
compensation, stock option, or severanc
2.23 MATERIAL CONTRACTS. Except as set forth on Schedule I hereto, PSC
is not party to or bound by any written or oral agreement listed below relating
to PSC's business:
(i) contract, commitment or arrangement for capital expenditures having a
remaining balance in excess of $1,000;
(ii) contract, commitment or arrangement containing covenants not to compete
in any lines of business or with any person or entity, or not to
disclose any information relating to any person or entity, except for
the restrictions present in the NCR Agreement attached hereto as
Exhibit C;
(iii) loan, credit, promissory note, guarantee, or other evidence of
indebtedness, including all agreements for any commitments for future
loans, credit, or financing, but excluding credit on account extended
to customer's of their respective business;
(iv) agreement, contract or commitment for the purchase of any services,
merchandise, or supplies, requiring the payment of more than $1,000
including, without limitation, independent contractor agreements; or
(v) agreement, contract or commitment for the sale of any assets, products,
or services involving a value or more than $1,000.
Except as set forth in Schedule I, each Contract is terminable pursuant to the
terms thereof without penalty, cost or liability on notice not exceeding thirty
(60) days. PSC is not in material breach, and has not received notice that it
is in material breach, of any of the Contracts. None of such Contracts will be
in default or breach as a result of the transactions contemplated in this
Agreement, and as of the Second Closing no consent of any party is required
thereunder in connection with the change in control contemplated in this
Agreement which has not been obtained by the SELLER and specifically set forth
in Schedule L.
2.24 INSURANCE. PSC as set forth in Schedule J, has insurance on its
tangible real and personal property and assets, whether owned or leased,
against loss or damage by fire or other casualty, in amounts equal to or in
excess of the full replacement value thereof, and comprehensive liability
insurance with limits of liability of at least $1,000,000. All such insurance
is in full force, with the premiums thereon paid, and is carried by reputable
carriers.
2.25 OWNERSHIP. Except only for the third party software and materials
which are licensed to PREMIS and/or PSC, PSC owns all right, title and
interest in and to the OpenEnterprise software and has not sold or assigned any
interest in the OpenEnterprise Software to any person, except as set forth in
the NCR Agreement attached as Exhibit C to this Agreement.
2.26 PROPRIETARY RIGHTS; ABSENCE OF LIENS. The OpenEnterprise software,
including, without limitation, each component and part thereof, and the
copying, distribution or use of such system does not and will not infringe upon
or violate any patent, copyright, trade secret, trademark or other intellectual
property right (whether conferred by statute, code, common law or otherwise) of
any third party. The OpenEnterprise software, as developed by PSC, is an
original work of authorship of PSC. All rights of authorship of PSC's
employees and representatives in the development of the OpenEnterprise Software
have been assigned to PSC.
2.27 MOST CURRENT SOFTWARE RELEASE WARRANTY. The version and release of
the OpenEnterprise software which has been delivered to ACA is the most current
commercially available version or release as April 4, 1999.
2.28 SOURCE CODE. Upon the Initial Closing, PREMIS and PSC will deliver
to ACA the original and all except one copy of the source code for the
OpenEnterprise software. PREMIS shall retain one copy thereof but agrees not to
let anyone else have access to that one copy.
2.29 MISCELLANEOUS BUSINESS AGREEMENTS. Schedule Q of this Agreement
lists any material business agreements of SELLER and PSC which are not disclosed
elsewhere (including bank accounts, escrow agreements, powers of attorney and
other business arrangements).
SECTION 3. REPRESENTATIONS AND WARRANTIES OF PURCHASER
3.1 REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. As a material
inducement to the SELLER entering into this Agreement, the PURCHASER hereby
represents and warrants to the SELLER the following, in each case as of the
date of this Agreement and the Second Closing, unless otherwise specifically
provided:
3.2 AUTHORIZATION. This Agreement has been duly executed by PURCHASER,
and this Agreement and all agreements, instruments and certificates to be
delivered by PURCHASER pursuant to this Agreement (hereafter referred to as the
"PURCHASER's Purchase Documents") constitute the valid and legally binding
obligation of PURCHASER, enforceable against PURCHASER in accordance with its
terms. PURCHASER has obtained all necessary authorizations, consents and
approvals, governmental and otherwise, required for the execution and delivery
of this Agreement and performance of PURCHASER's obligations hereunder.
3.3 ACCESS TO OPENENTERPRISE SOFTWARE. Prior to and including the date
of the Initial Closing , the PURCHASER fully acknowledges that PURCHASER has
been afforded full and complete access to review the OpenEnterprise software
including object code, source code, design specifications, and other related
documentation. Further, PURCHASER acknowledges that it has had free
unmonitored access to PSC developers and SELLER personnel having detailed
knowledge of the OpenEnterprise software, including, without limitation, Year
2000 compliance. As a result of this access and review the PURCHASER accepts
the OpenEnterprise software "as is" and without warranty, other than warranty
of good and marketable title as provided in Section 2.10 of this Agreement.
3.4 NO RESTRICTIONS. The execution, delivery and performance of the
PURCHASER's Purchase Documents by PURCHASER in accordance with its terms will
not, with or without the giving of notice or the passage of time, or both,
conflict with, result in a default, right to accelerate or material loss of
rights under, or result in the creation of any lien or encumbrance, or require
the consent of any third party or governmental authority, pursuant to (i) any
law, statute or regulation, judgment, order, writ, injunction, or decree
applicable to the PURCHASER, or (ii) any franchise, mortgage, loan agreement,
indenture or deed of trust or any lease, license, agreement, security
agreement, security interest, or any law, rule, regulation, order, judgment or
decree to which PURCHASER is a party or by which PURCHASER or PURCHASER's
assets may be bound, subject, or affected.
3.5 BURDENSOME AGREEMENTS. The PURCHASER is not, and PURCHASER's
assets, properties or businesses are not, subject to or bound or affected by
any order, judgment, decree, law, statute, ordinance, rule, regulation or other
restriction of any kind or character which would or could prevent PURCHASER
from entering into the PURCHASER's Purchase Documents or from consummating the
transactions contemplated herein.
3.6 LITIGATION; LAWS. There is no claim, legal action, arbitration,
governmental investigation or other legal or administrative proceeding, nor any
other decree or judgment in progress (collectively, "Litigation") pending or in
effect, or threatened, against or relating to the PURCHASER consummating the
transactions contemplated by the PURCHASER's Purchase Documents and PURCHASER
does not know, or have any reason to know, of any basis for the same.
3.7 DISCLOSURE. The information PURCHASER provided to SELLER for use by
SELLER in soliciting the approval of its shareholders for the transaction
contemplated by this Agreement is true and complete and does not misstate or
omit any material fact.
SECTION 4. COVENANTS OF SELLER AND PSC PRIOR TO THE SECOND CLOSING
4.1 MAKING OF CONVENANTS AND AGREEMENTS. Until the Second Closing,
SELLER and PSC shall take all action to cause PSC to do or refrain from doing
the following, in each case unless otherwise agreed or approved in writing by
the PURCHASER, which agreement or approval may be given or withheld in
PURCHASER's sole discretion and without any resulting liability to the
PURCHASER:
(a) Afford PURCHASER and its representatives with full and free access to
PSC's personnel, properties, books, records, accounts, tax returns,
contracts and commitments and furnish to PURCHASER all such information
concerning PSC and its respective business and affairs as PURCHASER may
request. The furnishing of such information to the PURCHASER and any
such investigation by PURCHASER shall not affect or in any way limit
PURCHASER's right to rely on the representations and warranties made by
the SELLER and PSC in this Agreement. Notwithstanding the foregoing,
PURCHASER acknowledges that it has relied exclusively upon investigation
and not upon SELLER's representation and warranties as to the matters
described in Section 3.3 of this Agreement.
(b) Except as permitted or required under this Agreement, operate the
business and operations of PSC only in the ordinary course of business as
conducted prior to March 31, 1999, not take any action or course of
action and not permit by inaction, any circumstance or event which would
or could cause PSC to be in breach or default of PSC's obligations,
covenants, agreements, representations, warranties or restrictions
contained in this Agreement. It is SELLER's and PSC's intent to use
their best efforts to continue the relationships with Cotton Ginny and
L. A. Weight Loss Centers, maintain property, whether owned or leased, in
good repair and condition, reasonable wear and tear excepted, maintain
insurance upon all of the properties identical to that in effect on the
date hereof and present any claim thereunder in a timely fashion; comply
with all laws, rules and regulations applicable to PSC, and pay and
perform all current liabilities when due.
(c) Use its best efforts to obtain in writing as promptly as possible all
approvals and consents required to be obtained in order to effectuate the
transactions contemplated hereby.
(d) Advise the PURCHASER promptly in writing of any fact which, if known at
the date hereof, would have been required to be set forth or disclosed in
or pursuant to this Agreement, or which would or could result in the
breach by SELLER and/or PSC of any representation or warranty or a breach
of any covenant or agreement hereunder.
(e) Not undertake any course of action inconsistent with the satisfaction of
the conditions to the Second Closing set forth herein, and do all such
acts and take all such measures as may be necessary to comply, and be in
compliance, with the representations, warranties, covenants and
agreements contained in this Agreement.
(f) Not make any change to the Articles, Bylaws or capital structure of PSC,
or issue or sell, or agree to issue or sell, any capital stock or
security of PSC, or incur any material obligation by PSC, or modify,
terminate or enter into any commitment or Contract of PSC.
(g) Allow PURCHASER to modify, enhance, update or extend the OpenEnterprise
software during the period prior to the Second Closing, provided that any
such actions by PURCHASER shall void any representations or warranties of
SELLER regarding the OpenEnterprise Software in this Agreement and in the
Exclusive Software License Agreement as to any claims arising on or after
the date of any such action by PURCHASER.
SECTION 5. COVENANTS OF PURCHASER PRIOR TO AND AFTER THE SECOND CLOSING
5.1 MAKING OF CONVENANTS AND AGREEMENTS. Until the Second Closing,
PURCHASER shall take all action to do or refrain from doing the following, in
each case unless otherwise agreed or approved in writing by the SELLER, which
agreement or approval may be given or withheld in SELLER's and/PSC's sole
discretion and without any resulting liability to the SELLER and/or PSC:
(a) Use its best efforts to obtain in writing as promptly as possible all
approvals and consents required to be obtained in order to effectuate the
transactions contemplated hereby.
(b) Advise the SELLER promptly in writing of any fact which, if known at the
date hereof, would have been required to be set forth or disclosed in or
pursuant to this Agreement, or which would or could result in the breach
by PURCHASER of any representation or warranty or a breach of any
covenant or agreement hereunder.
(c) Not undertake any course of action inconsistent with the satisfaction of
the conditions to the Second Closing set forth herein, and do all such
acts and take all such measures as may be necessary to comply, and be in
compliance, with the representations, warranties, covenants and
agreements contained in this Agreement.
(d) Provide SELLER promptly upon request such information as SELLER may
require for solicitation of SELLER's shareholder approval of the
transactions contemplated by this Agreement.
SECTION 6. CONFIDENTIAL INFORMATION
(a) From and after the date of this Agreement, SELLER shall not without the
prior written consent of PURCHASER, at any time reveal, divulge or make
known to any person (other than the PURCHASER or its affiliates), any
information that relates to this Agreement, the transactions contemplated
hereby, the existing business of PSC or the reasonably foreseeable
business of PSC or any of PSC's affiliates, including, but not limited
to, customer lists or other customer information, trade secret, marketing
plans or proposals, financial information, or any observations, data,
written material, records or documents used by or relating to the
business of PSC which are of a confidential nature (collectively, the
"PSC Confidential Information"). PSC Confidential Information includes
any such information whether or not such information was developed,
devised or otherwise created in whole or in part by the efforts of the
SELLER, and whether or not such information is a matter of public
knowledge unless as a result of authorized disclosure to the general
public. This covenant by SELLER shall terminate if there is no Second
Closing.
(b) From and after the date of this Agreement, SELLER shall not without the
prior written consent of PURCHASER, at any time reveal, divulge or make
known to any person (other than the PURCHASER or its affiliates), any
information that relates to the PURCHASER, the existing business of
PURCHASER or the reasonably foreseeable business of PURCHASER or any of
PURCHASER's affiliates, including but not limited to, customer lists or
other customer information, trade secret, marketing plans or proposals,
financial information, or any observations, data, written material,
records or documents used by or relating to the business of the PURCHASER
which are of a confidential nature (collectively, the "PURCHASER
Confidential Information"). PURCHASER Confidential Information includes
any such information whether or not such information was developed,
devised or otherwise created in whole or in part by the efforts of the
SELLER, and whether or not such information is a matter of public
knowledge unless as a result of authorized disclosure to the general
public.
(c) From and after the date of this Agreement, the PURCHASER hereby agrees
that, except: (i) as may be required by law, rule or regulation; or (ii)
required to comply with the conditions contained in this Agreement; or
(iii) as to inform PURCHASER's counsel, financial advisors, consultants,
employees or agents; PURCHASER shall not without the prior written
consent of SELLER, at any time reveal, divulge or make known to any
person (other than the SELLER or its affiliates), any PSC Confidential
Information. This covenant by PURCHASER shall terminate following the
Second Closing.
(d) Notwithstanding the foregoing, PURCHASER and SELLER shall not be
prohibited from disclosing PSC Confidential Information or PURCHASER
Confidential Information, as applicable, to the extent necessary, to
obtain the approval of SELLER's shareholders and to otherwise satisfy the
conditions to the Initial Closing and Second Closing, as set forth in
this Agreement.
SECTION 7. TERMINATION
7.1 TERMINATION AND ABANDONMENT. This Agreement may be terminated at any time
prior to the Second Closing only upon the conditions as set forth in this
Section 7.
(a) By either PURCHASER or SELLER if, without fault of the terminating party,
the Second Closing shall not have been consummated on or before September
30, 1999, or such later date as may be established and mutually agreed to
by both PURCHASER and SELLER, due to failure to satisfy conditions
precedent to the Second Closing; or
(b) By the mutual agreement of the parties; or
(c) By SELLER, if the shareholders of the SELLER fail to approve the
transaction contemplated herein at the Special Meeting of such
shareholders called to vote upon this Agreement; or
(d) If this Agreement is terminated by the PURCHASER by reason (i) of
any representation or warranty of the SELLER or PSC made in this
Agreement being untrue as of the date hereof or thereafter (other than as
a result of events not within SELLER's or PSC's reasonable control)
becoming untrue, or (ii) SELLER or PSC breach of any of their covenants
or agreements contained in this Agreement, in either case, in any respect
that is materially adverse in relation to the transactions contemplated
hereby or the business of PSC, then SELLER or PSC shall pay to PURCHASER,
as liquidated damages, all costs and expenses incurred by PURCHASER in
connection with the transactions contemplated hereby, including, but not
limited to attorneys fees and expenses to a maximum of $300,000; or
(e) If this Agreement is terminated by SELLER or PSC by reason (i) of
any representation or warranty of PURCHASER made in this Agreement being
untrue as of the date hereof or thereafter (other than as a result of
events not within PURCHASER's reasonable control) becoming untrue, or
(ii) PURCHASER's breach of any of its covenants or agreements contained
in this Agreement, in either case, in any respect that is materially
adverse in relation to the transactions contemplated hereby or the
business of PSC, then PURCHASER shall pay to the SELLER all costs and
expenses incurred by SELLER or PSC in connection with the transactions
contemplated hereby, including, but not limited to attorneys fees and
expenses to a maximum of $300,000.
7.2 TERMINATION PROCEDURES. In the event of termination pursuant to
Section 7.1, written notice shall be given by the party terminating the
Agreement and this Agreement shall be terminated without further action by
PURCHASER, SELLER and PSC.
7.3 EFFECT OF TERMINATION. All obligations of the parties hereunder
shall cease upon any termination pursuant to Section 7.1, except as provided by
such Section 7.1, provided, however, that the provisions of Sections 6, 7.4,
8.1, 9.1, 9.2, 9.6, 9.9, hereof shall survive any termination of this
Agreement.
7.4 TERMINATION OF EXCLUSIVE SOFTWARE LICENSE AGREEMENT. The Exclusive
Software License Agreement, attached as Exhibit E to this Agreement, shall
terminate in its entirety upon the Second Closing. In the event the Second
Closing does not occur before September 30, 1999, unless extended by mutual
agreement by the parties, the terms and conditions of the Exclusive Software
License Agreement, including the amounts due under such agreement, shall be in
full force and effect.
SECTION 8. INDEMNIFICATION
8.1 INDEMNIFICATION AND SET-OFF. SELLER and PSC hereby covenant and agree
with PURCHASER and PURCHASER hereby covenants and agrees with SELLER and PSC
that the parties shall pay and perform, and shall indemnify, defend and hold
harmless the other parties, other parties' affiliates, successors and assigns,
from, against and in respect of, any and all costs, losses, claims,
liabilities, fines, penalties, damages and expenses (including interest which
may be imposed in connection therewith and court costs and reasonable fees and
disbursements of counsel) (collectively, the "SELLER's or PURCHASER's
Indemnified Liabilities") resulting from, arising out of or incurred by any of
them in connection with (i) any breach of the representations or warranties
made by SELLER/PSC or PURCHASER in this Agreement, or (ii) the failure, breach
or default by SELLER/ PSC or PURCHASER in respect of any of the covenants or
agreements made by SELLER/PSC or PURCHASER in this Agreement or any document
related hereto.
(a) No claim whatsoever may be made by PURCHASER against the SELLER or PSC,
in respect of alleged breaches of such representations and warranties
after the date which is twelve (12) months after the Second Closing date.
(b) The PURCHASER shall not be entitled to make any such Claim if PURCHASER
has been advised in writing prior to the date of the Second Closing of
the inaccuracy, non-performance, non-fulfillment or breach which is the
basis for such claim.
(c) The amount of any damages which may be claimed by the PURCHASER pursuant
to a claim shall be reduced by any insurance proceeds received by the
PURCHASER in relation to the matter which is the subject of the claim.
(d) The PURCHASER shall not be entitled to make any claim until the net
aggregate amount of all damages, losses, liabilities and expenses
incurred by the PURCHASER as a result of all misrepresentations and
breaches of warranties contained in this Agreement or contained in any
document or certificate given in order to carry out the transactions
contemplated hereby, after taking into account paragraph (d) of this
Section 8.1, is equal to $10,000. After the aggregate amount of such
damages, losses, liabilities and expenses incurred by the PURCHASER
exceeds $10,000, the PURCHASER shall be entitled to make claim for the
entire aggregate amount of damages in excess of $10,000.
(e) Notwithstanding any other provisions of this Agreement, the maximum
aggregate liability of SELLER and PSC in respect of all such claims by
PURCHASER will be limited to the consideration received by SELLER
pursuant to this Agreement.
(f) Mr. F. T. Biermeier, President, CEO and major shareholder of PREMIS
Corporation provides additional indemnification in Exhibit G.
SECTION 9. MISCELLANEOUS
9.1 REMEDIES. Any dispute arising from the terms and conditions of this
Agreement shall be subject to final and binding arbitration by a single
arbitrator in Minneapolis, Minnesota under the rules of the Inter-American
Convention on International Arbitration. All rights and remedies under this
Agreement shall be cumulative, and the exercise of any one of them shall not be
deemed to be a waiver of any other. Time is of the essence in this Agreement.
The prevailing party in any arbitration proceeding under this Agreement shall
be entitled to recovery of costs and reasonable attorneys' fees, in addition to
other relief. The parties hereby submit to the personal jurisdiction of the
state or federal courts located in Minnesota for the enforcement of any
arbitration award.
9.2 EXPENSES. Other than as expressly provided in Section 7 whether or
not the Closing shall occur, each of the PURCHASER and the Seller shall pay
their own respective costs and expenses, including all fees and expenses of
their counsel, accountants and other representatives engaged or incurred in
connection with this Agreement and the transactions contemplated herein.
9.3 NOTICES. Any and all notices, requests, demands, consents,
approvals or other communications required or permitted to be given under any
provision of this Agreement shall be in writing and shall be deemed given upon
personal delivery, transmission via telecopier or the mailing thereof by first
class certified mail, return receipt requested, as follows:
If to SELLER or PSC, addressed to SELLER as follows:
PREMIS Corporation
Attention: F. T. Biermeier
13220 County Rd 6
Plymouth, MN 55441
and
c/o Moss and Barnett
Attention: Janna Severance
4800 Norwest Center
90 South 7th Street
Minneapolis, MN 55402
If to PURCHASER, addressed to PURCHASER as follows:
ACA Facilitair BV
Attention: T. Manders
P.O. Box 8829
NL-5605 LV Eindhoven
The Netherlands
and
John D. Alton
Goodman Phillips & Vineberg
250 Yonge Street, Suite 2400
Toronto, Ontario M5B 2M6
Canada
Either party may change its address for the purpose of this Agreement by notice
to the other party given as aforesaid.
9.4 WAIVER. No waiver by any party of any condition, or of the breach
of any term, covenant, representation or warranty contained in this Agreement,
whether by conduct or otherwise, in any one or more instances shall be deemed
to be or construed as a further and continuing waiver of any such condition or
breach or a waiver of any other condition or breach of any other term,
covenant, representation, or warranty of this Agreement. No action taken prior
to this Agreement, including any investigation by the parties hereto, shall be
deemed to constitute a waiver of any representation, warranty, covenant or
agreement contained herein, and the parties hereto shall be entitled to rely on
the representations and warranties contained herein notwithstanding such
investigation, except to the extent that PURCHASER has been advised in writing
prior to the date of the Second Closing of the inaccuracy, non-performance,
non-fulfillment or breach of a representation, warranty or covenant or
agreement contained herein.
9.5 BINDING EFFECT; ASSIGNMENT. This Agreement shall be binding upon,
and shall inure to the benefit of and be enforceable by, the parties hereto and
their respective successors, assigns, executors, personal representatives,
estates and heirs. The rights and obligations of the parties hereunder may not
be assigned to any other party without the prior written consent of the other
party, subject to Section 9.14.
9.6 SEVERABILITY. If any term, covenant, condition, or provision of
this Agreement or the application thereof to any circumstance shall be invalid
or unenforceable to any extent, the remaining terms, covenants, conditions, and
provisions of this Agreement, shall not be affected thereby and each remaining
term, covenant, condition, and provision of this Agreement shall be valid and
shall be enforceable to the fullest extent permitted by law.
9.7 ENTIRE AGREEMENT. This writing together with the Exhibits and
Schedules hereto constitutes the entire agreement of the parties with respect
to the subject matter hereof, supersedes any and all prior understandings and
agreements, whether written or oral, with respect to such subject matter, and
may not be modified, amended or terminated except by a written agreement
specifically referring to this Agreement and signed by all of the parties
hereto.
9.8 HEADINGS. The section headings contained herein are for reference
purposes only and shall not in any way affect the meaning or interpretation of
this Agreement.
9.9 GOVERNING LAW; VENUE. This Agreement shall be governed, enforced
and construed under and in accordance with the internal laws of the State of
Minnesota without regard to any choice or conflict of law principles.
9.10 NO THIRD PARTY BENEFICIARIES. Nothing contained in this Agreement,
expressed or implied, is intended or may be construed to confer on any person,
other than the parties hereto and their successors, as provided in Section 9.5,
any rights, remedies, obligations, or other liabilities under or by reason of
this Agreement.
9.11 SURVIVAL. Other than as limited elsewhere in this Agreement, the
respective representations, warranties, covenants, indemnities and agreements
of the parties hereto shall survive for 12 months following the Second Closing.
9.12 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, and by different parties on different counterparts Any party may
deliver an executed copy of this Agreement by facsimile transmission and such
delivery shall have the same force and effect as any other delivery of a
manually signed counterpart of this Agreement. This Agreement shall be
effective when counsel to the PURCHASER and counsel to the SELLER have each
received counterparts hereof, signed by the other party. All of such
counterparts shall collectively constitute one and the same instrument.
9.13 FINDERS. None of the parties has employed any broker or finder or
incurred any liability for any brokerage fees, commissions or finders fees in
connection with the transactions contemplated by this Agreement.
9.14 SUBSIDIARY OF PURCHASER. At the option of PURCHASER, the rights
and obligations of PURCHASER hereunder may be assigned and delegated to a
wholly-owned subsidiary of PURCHASER or its parent company, to the extent
consistent with the terms of this Agreement. Notwithstanding the exercise of
said option, the PURCHASER shall continue to be fully liable as to all of the
provisions of this Agreement.
9.15 TIME OF THE ESSENCE. Time shall be of the essence of this
Agreement.
IN WITNESS WHEREOF, the parties have executed this agreement effective the day
and year first written above by their duly authorized representatives.
PREMIS CORPORATION
By
F. T. Biermeier
Its President
PREMIS SYSTEMS CANANDA INCORPORATED
By
F. T. Biermeier
Its Chairman
ACA FACILITAIR BV,
By
Tiny Manders
Its President
SCHEDULE A
Information as to PSC Capital Stock
PSC has authorized capital of 10,000,000 Common Shares without nominal or par
value.
PSC has 100 Common Shares Outstanding without nominal or par value issued
entirely to PREMIS.
SCHEDULE B
List of PSC Actions, Suits, Proceedings
PSC has no knowledge of any actions, suits and/or proceedings existing or
anticipated at the time of this Agreement.
SCHEDULE C
List of PSC Assets being Disposed of Prior to the Second Closing
PSC will be selling its tangible assets including but not limited to its
furniture and fixtures, computers and peripherals and data and communications
equipment prior to the Second Closing unless specifically noted below or as
separately noted or made part of this Agreement.
Specific Tangible Assets not Available for Sale Prior to the Second Closing
There are no tangible assets which are precluded from being sold by PSC prior
to the Second Closing other than those items covered elsewhere in this
Agreement.
SCHEDULE D
List of PSC Benefit Plans
Sun Life Policy Number 55893
Renewal Date May 1, 1999
Expected to be terminated as of June 30, 1999
Extended Health Care
Dental
Prescriptions
Life Insurance
Unum Canada Policy Number 84534 001
Renewal Date May 1, 1999
Expected to be terminated as of April 30, 1999
Long Term Disability
Unum Canada Policy Number GSR 21529
Renewal Date May 1, 1999
Expected to be terminated as of June 30, 1999
Basic Accidental Death and Dismemberment Plan
London Life Registered Pension Plan Number 55579
Plan year end April 30th
Expected to be wound up with an effective date of March 31, 1999
(Ontario and Revenue Canada Registration Number 1018225)
SCHEDULE E
List of PSC Labor Matters
As of the Initial Closing, PSC will or will have terminated all employees,
except for the following part time relationship:
John Albers-former controller of PSC will be utilized on a part-time basis to
perform certain tasks as directed by SELLER between the time of the Initial and
Second Closing.
The Company at the time of the Initial Closing will have made or will provide
for any and all obligations to the former employees of PSC. Further, all such
obligations will be paid in full prior to the Second Closing resulting from but
not limited to regular payroll, bonuses, statutory or additional severance pay,
accrued vacation etc. per the terms and conditions of agreements made between
PSC and former employee prior to the Initial Closing.
Any relationship entered into between PURCHASER and former employees of PSC at
the time of or subsequent to the Initial Closing shall be on terms and
conditions solely between PURCHASER and such former PSC employees. Any and all
obligations created by such arrangements will be the sole responsibility of
PURCHASER.
SELLER has obtained signed "Full and Final Release" forms from all terminated
employees at the time of the Initial Closing. The form of the Full and Final
Release is as follows:
Full and Final Release
In consideration of payment of the Additional Items noted in the letter dated
Month/Day, 1999, less normal statutory deductions (the "Funds"), the receipt
and sufficiency of which is hereby acknowledged, Employee Name (the "Releasor")
hereby releases and forever discharges PREMIS Corporation and PREMIS Systems
Canada Incorporated, and all its shareholders, directors, officers, employees
and assigns (collectively the "Releasee") from any and all claims of every kind
existing up to the present or which may hereafter exist in any way relating to:
1. any claim relating to the employment or termination of the Releasor, or
2. any claim arising under the Employment Standards Act, the Human Rights Code
(Ontario) or the Canadian Human Rights Act.
Dated this 00 day of Month, 1999.
Employee Name
Witness
SCHEDULE F
PSC Financial Statements
PURCHASER hereby acknowledges that PURCHASER has received internally prepared
balance sheets and income statements of PSC as attached to and made part of
this Schedule F.
Not later than May 10, 1999, SELLER will provide a final balance sheet for PSC
dated as of March 31, 1999 and an income statement for PSC for the fiscal year
ended March 31, 1999, prepared on an unconsolidated basis and in accordance
with GAAP.
SCHEDULE G
List of Tax Matters
As of the date of the Second Closing, PSC will be required to file a change of
control income tax return. The amounts represented by such income tax returns
in the form of net operating loss carryforwards, research and development tax
credit carryforwards and other tax attributes, if any, will be utilized in
reducing the income tax liability incurred as a result of the NCR Receivable
and defined as the NCR Tax Liability.
Tax Returns to be Filed by SELLER
SELLER acknowledges that it will have the responsibility to file all income tax
returns due prior to the Second Closing or will have made provisions to do so
timely thereafter, including the PSC change of control income tax returns. The
cost of such filings will be the responsibility of SELLER.
PURCHASER acknowledges that it will be solely responsible for income tax and
other regulatory filings after the Second Closing, except as noted above.
Listing of Corporate Income Tax Returns Provided by SELLER to PURCHASER
PURCHASER acknowledges receipt of the following income tax filings.
PSC:
Taxation year ended July 14, 1997:
* T2 (Federal) Corporation Income Tax Return
* CT-23 (Ontario) Corporation Income Tax Return
* Federal Notice of Assessment dated September 10, 1998
Taxation year ended March 31, 1998:
* T661 (Federal) Claim for Scientific Research and Experimental Development
(SR&ED) Expenditures Carried on in Canada
* T2 (Federal) Corporation Income Tax Return
* CT-23 (Ontario) Corporation Income Tax Return
* Scientific Research and Experimental Development Program Technical Submission
and Follow-up information sent to Revenue Canada
REF Retail Systems Corp:
Taxation year ended July 14, 1997:
* T661 (Federal) Claim for Scientific Research and Experimental Development
(SR&ED) Expenditures Carried on in Canada
* T2 (Federal) Corporation Income Tax Return
* CT-23 (Ontario) Corporation Income Tax Return
* Federal Notice of Assessment dated June 25, 1998
* Ontario Notice of Assessment dated November 5, 1998
* Scientific Research and Experimental Development Program Technical Submission
The Softworks Group, Inc.:
Taxation Year ended September 30, 1998:
* T2 (Federal) Corporation Income Tax Return
* CT-23 (Ontario) Corporation Income Tax Return
* Federal Notice of Assessment dated February 1, 1999
* Ontario Notice of Assessment dated November 3, 1998
SCHEDULE H
List of PSC Intellectual Property
PREMIS OpenEnterprise including:
PREMIS OpenOffice, source code, object code, design specifications and
documentation.
PREMIS OpenStore, source code, object code, design specifications and
documentation.
PREMIS OpenNet, source code, object code, design specifications and
documentation.
Additionally, PREMIS will provide copies of the provisional U.S. patent filings
for the OpenStore software at the Second Closing.
SCHEDULE I
List of Other Material Contracts
1. Cotton Ginny Limited-Main agreements-Software License Agreements dated
September 23, 1997 and May 6, 1998. Professional Services Agreement and
various Professional Services Proposals. All of these contract are between
Cotton Ginny Limited and SELLER. These agreements will be assigned to PSC upon
or prior to Second Closing of the sale of PSC.
2. LA Weight Loss ("LAWL")-Main agreement-Software License Agreement dated June
9, 1998. Professional Services Agreement, including various Professional
Services Proposals. These agreements are between SELLER and LAWL. These
agreements will be assigned to PSC upon or prior to Second Closing of the sale
of PSC.
3. Reitmans Inc.-Professional Services Agreement and Professional Services
Proposal for Year 2000 conversion. This agreement is between Reitmans Inc. and
PSC. The work underlying the agreement is being performed by SELLER. In the
event the work being performed by SELLER is not completed prior to the Second
Closing, PSC will assign the agreement to SELLER with no obligation for work to
be performed by PSC or PURCHASER.
4. Suzy Shier-Refer to Schedule B above to this Agreement.
5. US Post - Subcontract POS-96-0012 between PSC (formally known as REF Retail
Systems Corp.) and NCR dated September 6, 1996. The rights and obligations of
this subcontract were terminated as part of a Software License Agreement, dated
August 3, 1998 between SELLER, PSC and NCR.
6. Software License Agreement dated August 3, 1998 between SELLER, PSC and NCR.
This agreement, as mutually agreed to by the parties to such agreement,
terminated the business relationship created under the subcontract in number 5
above. Further, the agreement covers each of the respective parties right to
the software referred to in such agreement, specifically the OpenStore
software.
7. Purchase and Sale Agreement of all of the shares of The Softworks Group,
Inc., the original developer and owner of OpenStore (POS Works) and Open Office
(Corp Works) software.
8. Agreement between Powersoft Corporation (now Sybase) and PSC dated August
31, 1995 for 1,500 seats of Watcom SQL (now Sybase SQL Anywhere). Certain of
these licenses have been utilized by SELLER and PSC customers.
SCHEDULE J
List of Insurance Contracts
SELLER has combined its corporate insurance policy with both PSC and SELLER.
The current PSC and SELLER insurance coverage regarding PSC is as follows:
Insurance Company-USF&G Insurance Co.
Effective date-August 1, 1998 to August 1, 1999.
Specific Coverage
1. Contents/EDP $1,000 Deductible -Limit USD$1,500,000.
2. Extra Expense USD$360,200
The General Liability and Excess Liability coverage are in excess of
$1,000,000.
PURCHASER and SELLER hereby agree that SELLER will maintain such insurance
coverage until the time of the Second Closing. At the time of the Second
Closing, PURCHASER is solely responsible for obtaining replacement coverage.
SELLER will terminate the above coverage effective with the Second Closing
without further notice to PURCHASER.
SCHEDULE K
List of Amounts Owed to SELLER by PSC
The SELLER has provided funding to PSC in the ordinary course of business since
the acquisition by SELLER of PSC "the PSC Debt". The PSC Debt as represented
in the financial statements, included as part of Schedule F to this Agreement,
are due and payable in accordance with Section 1.7 of the Stock Purchase
Agreement. The amounts are subject to normal additions and subtractions
between the date of this Agreement and the Second Closing, but in no event
shall exceed one million ($1,000,000) CDN.
SCHEDULE L
Consents Obtained for Material Contracts
None
SCHEDULE M
List of expenses to be paid to PSC by NEWCO or PURCHASER
from the time of the Initial Closing to the Second Closing
Pay to Service Amount
1. PSC (Until June 30, 1999) Facility Rent 3500 Steeles Ave $16,200/MO
2. Optel Telephone As Billed
3. Bell Canada Telephone As Billed
4. TigerTel Long Distance As Billed
5. UUNET Internet Service Provider As Billed
SCHEDULE N
List of Undisclosed Liabilities of PSC
PSC and SELLER have no knowledge of any undisclosed liabilities of PSC,
existing or anticipated at the time of this Agreement, except as made part of
the Financial Statements in Schedule F or as noted elsewhere in this Agreement
or as noted below:
SCHEDULE O
List of Leased Real Property
3500 Steeles Avenue East, Suite 1300, Markham, Ontario
1. Lease dated July 12, 1995 between IBM Canada Limited ("Landlord") and PREMIS
Systems Canada Incorporated ("Tenant", formally REF Retail Systems Corp.
("REF") prior to the Amalgamation of REF and PSC effective June 30, 1997 ).
SEE NOTE A BELOW.
2. Sub Lease dated November 16, 1998, between PSC ("Landlord") and Matrox
Graphics Inc. ("Subtenant"). SEE NOTE A BELOW.
3. Sub Lease dated November 16, 1998, between Liberty Health, a division of
Liberty Mutual Insurance Company ("Landlord") and PSC and SELLER (collectively
called the "Subtenant"). SEE NOTE B BELOW
Notes:
(A) The SELLER, IBM and Matrox, regarding the lease and sublease in
Items (1) and (2) above, have agreed to release PSC and SELLER of any and all
responsibilities and obligations as set forth in such lease and sublease.
(B) The SELLER and Liberty Health, regarding the sublease in Item (3),
have agreed to release PSC and SELLER of any and all responsibilities and
obligations as set forth in such sublease.
PURCHASER acknowledges that PURCHASER has received a complete copy of the above
noted lease, subleases and release forms discussed in Notes (A) and (B) above,
from SELLER prior to the Initial Closing.
SCHEDULE P
List of Permits and Licenses
Current accounts / permits currently in use:
Revenue Canada Account Numbers:
Corporation Income Tax Account 87774-3674-RC0001
Import/Export Account 87774 3674-RM0001
Payroll Deductions Account 87774 3674-RP0001
GST / Harmonized Sales Tax Account 87774 3674-RT0001
Ontario Retail Sales Vendor Permit Number 1317-8261
Ontario Employer Health Tax Account Number 110 248 321
Ontario Corporations Tax Account Number 5176586
Quebec Sales Tax Registration Number 1020732292
Schedule Q
List of Miscellaneous Business Agreements
Agreements/Accounts Type Number
Toronto-Dominion Bank Checking 0698 0802969
PriceWaterhouse/Coopers Professional Serv.-Accounting (416)228-4268
Stewart McKelvey Stirling Scales Corporate Attorney - Halifax (902)420-3200
Lincoln-Parry Associates Source Escrow Cotton Ginny Deposited
Lincoln-Parry Associates Soruce Escrow LA Weight Loss Deposited
Purolator Courier Express Mail
Optel Telephone
Bell Canada Telephone
TigerTel Long Distance
UUNET Internet Service Provider
SCHEDULE R
Certificate and Withholding Procedure
a) The Seller agrees to deliver to the Purchaser, at or before the Time
of Closing, a certificate issued pursuant to section 116 of the Income Tax Act
(Canada) (the "Act") in respect of the PSC Shares containing a "certificate
limit" at least equal the Purchase Price.
(b) If the Seller fails to deliver to the Purchaser, at or before the
Second Closing, the certificate under section 116 of the Act referred to in (a)
above, the Seller acknowledges that the Purchaser may, from time to time, be
liable to pay an amount equal to the aggregate of:
(i) one-third of the Purchase Price; and
(ii) any interest and penalties charged to the Purchaser under the Act for the
Purchaser's failure to remit to the Receiver General for Canada one-third
of the Purchase Price on or before the date that is 30 days after the end
of the month in which the Second Closing occurred(the "Remittance Date").
The sum of such liabilities at any particular time shall be referred to as the
"Withheld Amount" and shall be determined, from time to time, by
PriceWaterhouse/Coopers, Toronto.
(c) If the Seller fails to deliver to the Purchaser, at or before the
Second Closing, the certificate under section 116 of the Act referred to in (a)
above, the Escrow Agent shall, notwithstanding any provision of this Agreement
or the Escrow Agreement, withhold from the Seller the lesser of:
(i) the Withheld Amount; and
(ii) the aggregate of all amounts paid by the Purchaser to the Escrow Agent on
or before the Remittance Date in respect of the Purchase Price.
(d) If the Seller, on or before the Remittance Date, delivers to the
Purchaser the certificate under section 116 of the Act referred to in (a)
above, notwithstanding (c) above, the Escrow Agent shall pay to the Seller such
amounts that the Seller would otherwise be entitled to receive under the
provisions of this Agreement and the Escrow Agreement.
(e) If the Seller has failed to deliver to the Purchaser, on or before
the Remittance Date, the certificate under section 116 of the Act referred to
in (a) above, the Escrow Agent shall, on the Remittance Date, pay to the
Receiver General for Canada on behalf of the Purchaser the lesser of:
(i) the Withheld Amount; and
(ii) the aggregate of all amounts paid by the Purchaser to the Escrow Agent on
or before the Remittance Date in respect of the Purchase Price.
(f) If at any time after the Remittance Date, the Purchaser is required
pursuant to the provisions of this Agreement to pay an amount (an "Installment
Amount") to the Escrow Agent on account of the Purchase Price, the Escrow Agent
Shall forthwith pay to the Receiver General for Canada on behalf of the
Purchaser the lesser of the Withheld Amount (minus the amount previously
remitted to the Receiver General) and the Installment Amount.
(g) Any amount paid by the Escrow Agent on behalf of the Purchaser to
the Receiver General for Canada pursuant to (e) or (f) above shall be
considered for all purposes to be a payment made by the Escrow Agent on behalf
of the Purchaser to the Seller on account of the Purchase Price.
(h) Any amount refunded by the Receiver General as an overpayment shall
be remitted to Seller to the extent of the Purchase Price under the Agreement,
with the balance to the Purchaser.
EXHIBIT 10.3
EXCLUSIVE SOFTWARE LICENSE AND DISTRIBUTION AGREEMENT
THIS EXCLUSIVE SOFTWARE LICENSE AND DISTRIBUTION AGREEMENT ("Agreement") is
made and entered into effective as of the 20 day of April, 1999, by and between
PREMIS Corporation, a Minnesota corporation ("PREMIS"), PREMIS Systems Canada
Incorporated, a Nova Scotia Corporation ("PSC") which is a direct wholly owned
subsidiary of PREMIS (collectively the "Licensor") and ACA FACILITAIR BV
("ACA").
WHEREAS, PSC owns certain copyrights, software licenses, programs,
documentation, trademarks and other assets developed or purchased for the
purpose of marketing its OpenEnterprise software to the specialty retailing and
general merchandise marketplace ; and
WHEREAS, PREMIS and PSC wish to divest their interest in such
OpenEnterprise software; and
WHEREAS, ACA desires to obtain the exclusive right to develop, copy,
distribute, sublicense, maintain and improve such OpenEnterprise software
pursuant to this Agreement; and
WHEREAS, PREMIS, PSC and ACA are party to a certain Stock Purchase
Agreement made and entered into as of the date hereof (the "Purchase
Agreement"); and
WHEREAS, subject to certain conditions precedent, ACA, PREMIS and PSC
have agreed to execute this Agreement as of the Initial Closing as defined in
the Purchase Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants herein set forth, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
ARTICLE 1: DEFINITIONS
For purposes of this Agreement, the following defined terms shall have
the respective meanings indicated below:
1.1 PREMIS and PSC Copyrights. The term "PREMIS/PSC Copyrights"
means each of the copyrighted works identified on Exhibit 1.1 hereto and
developed by or on behalf of PREMIS and PSC pertaining to the OpenEnterprise
software.
1.2 PREMIS and PSC Trademarks. The term "PREMIS/PSC Trademarks"
means each of the trademarks identified on Exhibit 1.2 hereto and selected or
used by or on behalf of PREMIS and PSC pertaining to the OpenEnterprise
software.
1.3 PREMIS and PSC Documentation. The term "Documentation"
means all documentation and programmer notes developed by or on behalf of
PREMIS and PSC pertaining to the OpenEnterprise software.
1.4 Third Party Software/Materials. The term "Third Party
Software/Materials" means each of the software programs or other materials
identified on Exhibit 1.3 hereto, as developed or owned by third parties and
used with the OpenEnterprise software.
1.5 OpenEnterprise Software. The term "OpenEnterprise Software" means the
PREMIS Copyrights, PREMIS Trademarks, PREMIS Documentation, Third Party
Software/Materials and other software, licenses, programs and assets developed
or purchased by or on behalf of Licensor for the purpose of marketing software
to the specialty retailing and general merchandise marketplace, both computer
software and related documentation, and shall include source code, object code,
and source listings (including both the original source input statements,
together with the object code and original address data generated by the
assembler and/or compiler); applications programs, operating systems,
utilities, device handlers, diagnostics, data base creation, modification, and
report generation programs; assemblers, cross assemblers, compilers, utilities,
libraries, linkers, loaders, debuggers, simulators, fully commented source code,
detailed state diagrams, flowcharts, pseudo-code, nassi-Shneiderman Diagrams;
algorithms, formulas, and other data that describe design, function,
operation or capabilities; reference, user and programmer manuals; and other
recorded information, regardless of the for or the medium on which it may
be recorded; and for use with any make or type of hardware platform
currently compatible or which is compatible in the future, together with
all improvements thereto made by or on behalf of Licensor. PREMIS has
assigned all of its rights, title and interest in the OpenEnterprise Software
to PSC by Assignment and Assumption Agreement dated as of the date of this
Agreement.
1.6 PREMIS Customers. The term "PREMIS Customers" means those
customers that have entered into license agreements for the OpenEnterprise
Software.
ARTICLE 2: EXCLUSIVE LICENSE AND DISTRIBUTION OF THE OPENENTERPRISE SOFTWARE
2.1 Exclusive License. Licensor hereby grants ACA and its
representatives, successors and assigns, the irrevocable and exclusive
worldwide right and license (except for the restrictions contained in the NCR
Agreement as attached as Exhibit C to the Purchase Agreement), royalty free,
fully paid, with the right to grant sublicenses, to develop, copy, distribute,
sublicense, re-market, maintain and improve the OpenEnterprise Software in
object code and/or source code form (the "Exclusive License").
2.2 Deliverables. Upon execution of this Agreement, Licensor
shall deliver the following "Deliverables" to ACA:
(a) one complete master and one complete backup copy of the Documentation and
source code and object code for the OpenEnterprise Software, suitable for
reproduction and distribution by ACA;
(b) all marketing materials, brochures and other information developed by or
on behalf of PREMIS for the commercialization of the OpenEnterprise
Software (the "Additional Materials") (ACA may hereafter use the
Additional Materials in furtherance of the Exclusive License);
(c) one complete copy of all coding, work papers and notes for PREMIS'
current research and development of the OpenEnterprise Software and any
improvements thereto;
(d) one complete copy of license agreements signed by PREMIS Customers on or
prior to the date of this Agreement;
2.3 Distribution of the OpenEnterprise Software. Pursuant to
the Exclusive License, ACA and its representatives, successors and assigns may
hereafter copy, distribute and sublicense all or any portion of the
OpenEnterprise Software, in source code and/or object code form and in any
manner determined by ACA.
2.4 Source Code Escrow Agreements. Licensor will assist and
cooperate with ACA, to the extent reasonably required, with any source code
escrow agreements used by ACA, at ACA's discretion and at ACA's expense, in the
marketing and distribution of the OpenEnterprise Software.
2.5 Derivative Works and Improvements. All derivative works,
upgrades, enhancements, new releases, new versions and other improvements to
the OpenEnterprise Software, by or on behalf of ACA, and all copyrights,
trademark rights, trade secret rights and/or patent rights pertaining thereto,
shall be owned by ACA (collectively, the "Improvements"). Licensor hereby
assigns all current and future rights, if any, in the Improvements to ACA.
2.6 Other Copyright and Trademark Rights. ACA shall own the
copyrights to all marketing and other materials developed by or on behalf of
ACA and all trademarks selected or used by ACA in the commercialization of the
OpenEnterprise Software, other than the PREMIS Copyrights and the PREMIS
Trademarks.
ARTICLE 3: MAINTENANCE AND SUPPORT
3.1 Existing License Agreements. Exhibit 3.1 to this Agreement
contains a listing of all of the license agreements or arrangements previously
entered into by PREMIS or its affiliates for the distribution or use of the
OpenEnterprise Software (collectively, the "Existing License Agreements"). ACA
hereby assumes the obligations of PREMIS which accrue on and after the date
hereof for only those Existing License Agreements so identified on Exhibit 3.1,
and shall retain all monies collected thereunder on or after the effective date
of this Agreement. PREMIS retains all of its obligations arising under the
Existing License Agreements before the date of this Agreement, including but
not limited to the obligation to pay third parties who provided goods or
services to PREMIS relating directly or indirectly to the service of PREMIS
customers prior to the date of this Agreement. PREMIS shall retain only the
moneys paid for license fees and otherwise under the Existing License
Agreements billed prior to the date he
If either PREMIS or ACA receives payments under an Existing License Agreement
which are to be paid over to the other party pursuant to this Section 3.1, the
party receiving such payment shall promptly pay such entire amount to the other
party.
3.2 Future Maintenance and Support. ACA may at its discretion
determine the terms of all maintenance and support arrangements for the
existing agreements for PREMIS Customers (except that ACA shall comply with all
Existing License Agreements), and with customers who purchase the
OpenEnterprise Software after the effective date of this Agreement.
3.3 Hiring of PREMIS Personnel. ACA may, at its sole
discretion, elect to hire any personnel of PREMIS currently employed, on such
terms as may be determined by ACA.
ARTICLE 4: COVENANTS OF PREMIS AND PSC
4.1 Noncompete and Nonsolicitation. Throughout the first ten
(10) years of the Term of this Agreement, and to the extent lawful under
applicable laws and regulations, PREMIS and PSC individually each covenant and
agree (a) not to directly or indirectly develop, enhance, improve, market,
distribute, license, sell or solicit orders anywhere in the world for
OpenEnterprise Software or other computer software which competes with all or
any portion of the OpenEnterprise Software marketed to the specialty retailing
and general merchandise marketplace (a "Competing Product"), and (b) not to
solicit any employee of ACA who was employed by PREMIS as of April 1, 1999 to
leave the employment of ACA. This Section 4.1 shall survive the termination of
this Agreement upon consummation of the sale of the PSC Shares under the
Purchase Agreement.
4.2 Confidentiality. PREMIS and PSC each covenant and agree
that they will not hereafter use or disclose the source code, object code or
Documentation for the OpenEnterprise Software or any other nonpublic components
of the OpenEnterprise Software without the prior written consent of ACA.
ARTICLE 5: ONE TIME LICENSE PAYMENT
5.1 Exclusive License Payment. A one time license payment of
$1,000,000 shall be payable out of the Escrow Account (as defined in the
Purchase Agreement) in the event the Second Closing (as defined in the Purchase
Agreement) does not take place by September 30, 1999 (or such date as agreed to
by the parties). In the event the Second Closing does not occur on or before
such date, the terms and conditions of this Agreement, including the amounts
due under this Agreement, shall be in full force and effect and shall continue
in perpetuity. In the event the Second Closing, does occur this Agreement,
shall terminate in its entirety. .
ARTICLE 6: REPRESENTATIONS AND WARRANTIES OF PREMIS
PREMIS and PSC agree, represent and warrant as follows:
6.1 Interpretation. Each of the representations and warranties
contained in this Article 6 are made by PREMIS and PSC for the benefit of ACA,
and PREMIS and PSC acknowledges that each of such representations and
warranties are material.
6.2 Organization. PREMIS is a corporation duly organized,
validly existing and in good standing under the laws of the State of Minnesota
and has the corporate power and authority to own, lease and operate its
properties and to carry on its activities as now being conducted. PSC is a
corporation duly organized, validly existing and in good standing under the
laws of the Province of Nova Scotia, Canada and has the corporate power and
authority to own, lease and operate its properties and to carry on its
activities as now being conducted
6.3 Authority. PREMIS and PSC have the corporate power and
authority to enter into this Agreement and to carry out the transactions
contemplated by this Agreement. The transactions and activities contemplated
by this Agreement have been duly authorized by their respective boards of
directors and no other actions on part or on the part of any other person or
entity are necessary to authorize the transactions and activities contemplated
by this Agreement. This Agreement has been duly authorized, executed and
delivered by PREMIS and PSC and is a legal, valid and binding agreement
enforceable against PREMIS and PSC in accordance with its terms. This
Agreement does not violate the Articles of Incorporation or Bylaws of PREMIS or
PSC or any other agreement to which PREMIS or PSC is a party.
6.4 Ownership. Except only for the Third Party
Software/Materials which are licensed to PREMIS and/or PSC, PSC owns all right,
title and interest in and to the OpenEnterprise Software and has not sold or
assigned any interest in the OpenEnterprise Software to any person, except as
set forth in the NCR Agreement attached as Exhibit C to the Purchase
Agreement.
6.5 Proprietary Rights; Absence of Liens. The OpenEnterprise
Software, including, without limitation, each component and part thereof, and
the copying, distribution or use of such system pursuant to the Exclusive
License, does not and will not infringe upon or violate any patent, copyright,
trade secret, trademark or other intellectual property right (whether conferred
by statute, code, common law or otherwise) of any third party. The
OpenEnterprise Software, as developed by PREMIS and PSC, is an original work of
authorship of PREMIS and PSC. All rights of authorship of PREMIS' and PSC's
employees and representatives in the development of the OpenEnterprise Software
have been assigned to PREMIS and/or PSC and are now held by PSC.
6.6 Most Current Software Release Warranty. The version and
release of the OpenEnterprise Software delivered to ACA as part of the
Deliverables is the most current commercially available version or release as
of the effective date of this Agreement.
6.7 Source Code. PREMIS and PSC has delivered to ACA the
original and all except one copy of the source code for the OpenEnterprise
Software. PREMIS shall retain one copy thereof but agrees not to let anyone
else have access to that one copy during the term of this Agreement.
6.8 Litigation; Laws. There is no claim, legal action
arbitration, governmental investigation or other legal or administrative
proceeding, nor any other decree or judgment (collectively, "Litigation") in
progress, pending or in effect, or threatened, against or relating to PREMIS or
PSC, or PSC's respective assets, business or operations, or to the
transactions, contemplated by this Agreement, and neither PREMIS nor PSC knows,
or has any reason to know, of any basis for the same.
6.9 Disclosure. No representations or warranty by Licensor
contained in this Agreement, and no information heretofore provided to the ACA,
pursuant to this Agreement or in connection with the transactions contemplated
hereby, contains any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements contained herein not
misleading.
6.10 Existing License Agreements. Each of the Existing License
Agreements is terminable pursuant to the terms thereof. PSC is not in material
breach, and has not received notice that it is in material breach, of any of
the Existing License Agreements. None of the Existing License Agreements will
be in default or breach as a result of transactions contemplated in this
Agreement, and no consent of any party is required thereunder in connection
with this Agreement.
6.11 Miscellaneous. In no event will PREMIS or PSC convey any
title or interest in the OpenEnterprise Software to any third party.
ARTICLE 7: REPRESENTATIONS AND WARRANTIES OF ACA
ACA agrees, represents and warrants as follows:
7.1 Interpretation. Each of the representations and warranties
contained in this Article 7 are made by ACA for the benefit of PREMIS and PSC,
and ACA acknowledges that each of such representations and warranties are
material.
7.2 Organization. ACA is a corporation duly organized, validly
existing and in good standing under the laws of The Netherlands and has the
corporate power and authority to own, lease and operate its properties and to
carry on its activities as now being conducted.
7.3 Authority. ACA has the corporate power and authority to
enter into this Agreement and to carry out the transactions contemplated by
this Agreement. The transactions and activities contemplated by this Agreement
have been duly authorized by its board of directors and no other actions on its
part or on the part of any other person or entity are necessary to authorize
the transactions and activities contemplated by this Agreement. This Agreement
has been duly authorized, executed and delivered by ACA and is a legal, valid
and binding agreement enforceable against ACA in accordance with its terms.
This Agreement does not violate the Articles of Incorporation, Bylaws or other
charter documents of ACA or any other agreement to which ACA is a party.
ARTICLE 8: INDEMNIFICATIONS
PREMIS and PSC shall, at PREMIS' and PSC's cost and expense, defend,
indemnify and hold harmless ACA, its distributors, sublicensees, customers, and
their respective agents, employees, officers, directors, successors and
assigns, from and against any and all claims, actions, damages, liabilities,
costs and expenses (including, without limitation, attorneys' fees and expenses
arising out of the defense of any claim) relating to or arising out of (a) any
claim or allegation that the OpenEnterprise Software, including, without
limitation, any component or part thereof, infringes upon or violates any
patent, copyright, trade secret, trademark or other intellectual property
right, (b) Any claim related to failure by PREMIS or PSC to perform under any
Existing License Agreement or the NCR Agreement (as defined in the Purchase
Agreement) prior to the effective date of this Agreement, and (c) any claims by
any vendor of the Third Party Software/Materials pertaining to the obligations
of PREMIS and PSC, arising prior to the effective date of this agreement;
provided that these indemnifications shall be void on and after the date of any
change to the OpenEnterprise Software by any person other than PREMIS as to any
mattter arising from or related to any such change.
ACA shall, at ACA's cost and expense, defend, indemnify and hold
harmless PREMIS and PSC, its shareholders, distributors, sublicensees,
customers, and their respective agents, employees, officers, directors,
successors and assigns, from and against any and all claims, actions, damages,
liabilities, costs and expenses (including, without limitation, attorneys' fees
and expenses arising out of the defense of any claim) relating to or arising
out of (a) any claim related to ACA's failure to perform under any Existing
License Agreement, (b) any allegation that the OpenEnterprise Software,
including, without limitation, any component or part thereof, infringes upon or
violates any patent, copyright, trade secret, trademark or other intellectual
property right, but only with respect to changes, modifications or
enhancements made to the OpenEnterprise Software after the date of this
Agreement, (c) any claims by any vendor of the Third Party Software/Materials
arising from facts or circumstances after the effectiv
ARTICLE 9: TERM AND TERMINATION
9.1 Term. This Agreement shall become effective as of the date
first set forth above and shall continue in effect in perpetuity, subject to
earlier termination as provided in Section 9.2 below:
9.2 Termination. The term of this Agreement may be terminated
only as follows:
(a) Breach. Failure by PREMIS, PSC or ACA to comply with any term or
condition under this Agreement shall entitle the other party to give the party
in default written notice requiring it to cure such default. If the party in
default has not cured such default within sixty (60) days after receipt of
notice describing the alleged default, the notifying party shall be entitled,
in addition to any other rights it may have under this Agreement, or otherwise
under law (unless limited by this Agreement), to terminate this Agreement by
giving notice to take effect immediately.
(b) Second Closing of Purchase Agreement. This Agreement shall
terminate in its entirety upon the Second Closing as defined in the Purchase
Agreement.
(b) Mutual Agreement. This Agreement may be terminated at any time by
mutual written agreement between the parties.
9.3 Other Rights and Remedies of PREMIS. The parties
acknowledge that any breach or evasion by ACA or its shareholders of any
provision of this Agreement will result in immediate and irreparable injury and
harm to PREMIS and its affiliates, and may cause PREMIS and its affiliates to
suffer damages in amounts difficult to ascertain. Accordingly, upon such
breach, which has not been timely cured, PREMIS shall be entitled to the
remedies of injunction and specific performance, or either of such remedies, as
well as other legal or equitable remedies to which PREMIS may be entitled. All
such rights and remedies shall be cumulative, and the exercise of any one of
them shall not be deemed to be a waiver of any other. The prevailing party in
any litigation under this Agreement shall be entitled to recovery of reasonable
attorneys' fees, in addition to other relief.
9.4 Survival and Termination Liability. The terms and
provisions of Article 8 of this Agreement shall survive the expiration or any
earlier termination of this Agreement.
9.5 Right of First Refusal. In the event that (a) PREMIS or PSC
intends to terminate its corporate existence, (b) PREMIS or PSC intends to
transfer any rights as licensor under this Agreement, or (c) PREMIS intends to
transfer all or any shares of PSC or issue shares of PSC to any other person,
then PREMIS shall give notice of such proposed action to ACA. ACA shall then
have the right, exercisable within 10 days following the date of the notice, to
purchase all rights of PSC and PREMIS under this Agreement, "as is" without
representations or warranties, for $1.00 (US). Effective with the payment in
full of the license fee under Section 5.1, PSC grants to ACA, and any of its
affiliates to whom it may assign this Agreement, a security interest in the
OpenEnterprise Software which shall be enforceable only in the event that this
right of first refusal is not honored by PSC and /or PREMIS for any reason (
including a determination by a court of competent jurisdiction that such right
of first refusal is unenforceable). In such event, ACA shall have all the
rights of a secured party under the Personal Property Secutiy Act(Ontario).
ARTICLE 10: GENERAL
10.1 Assignment. ACA may assign or otherwise transfer this
Agreement or any right or obligations herein without restriction, provided that
ACA shall give at least ten (10) days advance notice to PREMIS of each such
assignment (unless the assignment is to a wholly-owned subsidiary of ACA or
its parent). No assignment shall relieve ACA or its shareholders of their
obligations hereunder. For purposes of this Section, a change in control of
ACA (or any subsequent assignee) shall be deemed an assignment.
10.2 Headings. The article, section and subsection headings are
for convenient reference and are not a part of this Agreement.
10.3 Waiver. No waiver of any breach of any provision of this
Agreement shall constitute a waiver of any prior, concurrent, or subsequent
breach of the same or any other provisions hereof, and no waiver shall be
effective unless made in writing.
10.4 Notices. Any notice required or permitted to be given
under this Agreement shall be sufficient if in writing and delivered personally
or via FAX (all FAX's shall also be mailed in accordance with this Section
10.4) or sent by registered or certified mail, postage prepaid and return
receipt requested, to the attention of the "President" at the parties'
respective addresses set forth in the Purchase Agreement (or to such other
address as the parties shall designate by notice to the other in accordance
with this Section 10.4) and shall be deemed to have been given as of the date
of personal delivery, as of the date on the receipt or as of the date returned
unclaimed by the Postal Service.
10.5 Modifications. This Agreement can only be modified by
written agreement duly signed by the parties.
10.6 Governing Law and Venue. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
MINNESOTA. ACA AGREES THAT VENUE FOR ANY ACTION ARISING OUT OF OR RELATING TO
THIS AGREEMENT WILL BE IN A STATE OR FEDERAL COURT SITTING WITHIN THE STATE OF
MINNESOTA, USA. ACA HEREBY CONSENTS AND SUBMITS TO THE PERSONAL JURISDICTION
OF SAID COURTS FOR THAT PURPOSE AND HEREBY SPECIFICALLY WAIVES ANY OTHER
JURISDICTION.
10.7 Severability. If any provision of this Agreement is held
to be illegal, invalid or unenforceable under present or future laws effective
during the Term hereof, such provision shall be fully severable; this Agreement
shall be construed and enforced as if such illegal, invalid or unenforceable
provision had never comprised a part hereof; and the remaining provisions of
this Agreement shall remain in full force and effect and shall not be affected
by the illegal, invalid or unenforceable provision or by its severance from
this Agreement.
10.8 Force Majeure. Neither party shall be in default by reason
of any failure in performance of this Agreement in accordance with the terms
herein if such failure arises out of causes beyond the control and without the
fault or negligence of such party. Such causes may include, but are not
restricted to, acts of God or public enemy, acts of the government in its
sovereign or contractual capacity, fires, floods, epidemics, quarantine
restrictions, strikes, freight embargoes, power failures, and unusually severe
weather; but in every case the failure to perform must be beyond the control
and without fault or negligence of the party failing to perform.
10.9 Complete Agreement. The terms and provisions contained in
the above recitals, the Purchase Agreement and the Exhibits referred to herein
(collectively, the "Agreement") contain the complete agreement between the
parties concerning the subject matter hereof and supersede all prior
understandings, proposals or agreements, and all prior communications between
the parties relating to the subject matter of this Agreement. No
representation, warranty, promise, inducement or statement of intention has
been made by the parties which is not embodied in this Agreement or in the
documents expressly referred to herein, and neither PREMIS, PSC nor ACA shall
be bound by or liable for any alleged representation, promise, inducement or
statement of intention not so set forth.
10.10 Expenses. Each party hereto shall pay its own costs and
expenses incurred in connection with the negotiation and preparation of this
Agreement and the consummation of the transactions contemplated herein.
10.11 Construction. The language in all parts of this Agreement
shall in all cases be construed as a whole according to its fair meaning,
strictly neither for nor against any party hereto, and without implying a
presumption that the terms thereof shall be more strictly construed against one
party by reason of the rule of construction that a document is to be construed
more strictly against the person who himself or through his agent prepared the
same, it being agreed that representatives of both parties have participated in
the preparation hereof.
10.12 Counterparts. This Agreement may be executed in one or
more counterparts.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the day and year first above written.
PREMIS CORPORATION
By
F. T. Biermeier
Its President
PREMIS SYSTEMS CANADA INCORPORATED
By
F. T. Biermeier
Its Chairman
ACA FACILITAIR BV
By
Tiny Manders
Its President
Exhibit 1.1
Copyrights and Description of the OpenEnterprise Software
No applications for copyright protection has been filed. However programs
within each of the products contain assertions that the work is a product of
PREMIS Systems Canada or its predecessors and as such are protected under the
copyright laws.
PRODUCT DESCRIPTION
PREMIS OpenStore - Retail Store system consisting of the retail point of sale
system and the store back office system
PREMIS OpenOffice - Retail Headquarters system consisting of a base system and
various optional modules for store inventory, auditing and customer management.
PREMIS OpenNet - Software to maintain the data for a group of retail stores
connected via a wide area network.
Exhibit 1.2
Trademarks
PREMIS Systems Canada has not filed any applications for registration of any
Trademarks, Tradenames or Servicemarks.
Exhibit 1.3
Third Party Software/Materials *
PRODUCT RUNTIME REQUIRED VENDOR
SQL Anywhere YES Sybase
SQL Remote YES Sybase
PowerBuilder YES PowerSoft
Windows NT (Workstation and Server) YES Microsoft
SQL Server YES Microsoft
Blast Software YES Blast
McAfee - Zero Admin Client YES Network Associates
Tender Retail - Credit Cheq Direct YES Tender Retail
Active X 1.1 YES Microsoft
HTML Show YES Microsoft
Internet Explorer YES Microsoft
OPOS Drivers YES Hardware Specific
Other Hardware Drivers YES Hardware Specific
* ACA shall validate this list with recently hired employees, and omissions
shall not invalidate this license. This list does not include software
development tools such as compilers etc.
Exhibit 3.1
Existing License Agreements
Tie Rack North America
Cotton Ginny
LA Weight Loss Clinics
EXIBIT 21.1 Subsidiaries of the Registrant
PREMIS Systems Canada Incorporated, a Nova Scotia, Canada Corporation.
Principal offices located in Toronto, Canada.
(1) By Order of Amalgamation dated July 15, 1997 PREMIS Systems Canada
Incorporated and REF Retail Systems Corp. Incorporated were amalgamated
effective June 30, 1997.
EXHIBIT 23.1 Consent of Independant Accountants
We hereby consent to the incorporation by reference in the Proxy Statement on
Schedule 14A for the fiscal 1999 annual meeting and in the Registration
Statement on Form S-8 (No. 333-03161) of PREMIS Corporation, of our report dated
May 7, 1999 appearing in this Form 10-KSB.
PRICEWATERHOUSECOOPERS LLP
Minneapolis, Minnesota
June 7, 1999
EXHIBIT 99.1 Audited Financial Statements
Report of Independent Accountants
To the Stockholders and
Board of Directors of
PREMIS Corporation
In our opinion, the accompanying consolidated balance sheet and the related
consolidated statements of operations, of stockholders' equity and of cash
flows present fairly, in all material respects, the financial position of
PREMIS Corporation and its subsidiary at March 31, 1999 and 1998, and the
results of their operations and their cash flows for the years then ended, in
conformity with generally accepted accounting principles. These financial
statements are the responsibility of the Company's management; our
responsibility is to express an opinion on these financial statements based on
our audits. We conducted our audits of these statements in accordance with
generally accepted auditing standards which require that we plan and perform
the audit to obtain reasonable assurance about whether the financial statements
are free of material misstatement. An audit includes examining, on a test
basis, evidence supporting the amounts and disclosures in the financial
statements, assessing the accounting principles used and significant estimates
made by management, and evaluating the overall financial statement
presentation. We believe that our audits provide a reasonable basis for the
opinion expressed above.
As described in Note 1 to the financial statements, the Company intends to
submit a plan of liquidation to the stockholders of PREMIS Corporation at its
annual meeting.
PRICEWATERHOUSECOOPERS LLP
May 7, 1999
PREMIS Corporation
Consolidated Financial Statements
March 31, 1999 and 1998
PREMIS Corporation
Consolidated Balance Sheet
March 31,
ASSETS 1999 1998
Current assets:
Cash and cash equivalents $ 2,781,592 $ 1,359,773
Trade accounts receivable, net of allowance for
doubtful accounts of $0 and $148,183, respectively 115,921 610,244
Refundable income taxes 264,000 149,453
Inventory 12,591
Cost and estimated earning in excess of billings 90,097
Prepaids and other assets 40,719 200,450
Current portion of note receivable 100,000 117,367
__________ __________
Total current assets 3,347,232 2,539,975
Property and equipment, net 45,000 1,316,201
Note receivable 405,322
Software distribution rights, net of accumulated
amortization of $325,211 82,865
__________ __________
Total assets $ 3,083,232 $ 4,344,363
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Trade accounts payable $ 26,684 $ 234,043
Accrued liabilities 453,109 373,748
Unearned income 455,574 858,412
Current portion of notes payable - banks 32,403
Current portion of other notes payable 49,438
Current portion of capital lease obligation 62,731
__________ __________
Total current liabilities 935,367 1,610,775
Long-term liabilities:
Notes payable - banks 53,311
Other notes payable 24,792
Capital lease obligation 792,649
__________ __________
Total liabilities 935,367 2,481,527
Commitment and contingencies (Note 5)
Stockholders' equity:
Common stock, 10,000,000 shares authorized,
5,051,177 and 4,714,177 shares issued and
outstanding, $.01 par value 50,512 47,142
Additional paid-in capital 9,659,318 9,644,109
Stock subscription receivable (51,000)
Accumulated deficit (7,549,049) (7,832,909)
Cumulative translation adjustment 302,084 4,494
__________ __________
Total stockholders' equity 2,411,865 1,862,836
__________ __________
Total liabilities and stockholders' equity $ 3,347,232 $ 4,344,363
See accompanying notes to the consolidated financial statements.
PREMIS Corporation
Consolidated Statement of Operations
Year Ended March 31,
1999 1998
Revenue:
System sales $ 4,401,502 $ 4,215,767
Maintenance fees and other revenue 1,064,349 1,729,611
__________ __________
Total revenue 5,465,851 5,945,378
Cost of sales:
Systems 129,891 2,853,046
Maintenance and other 421,091 608,706
__________ __________
Total cost of sales 550,982 3,461,752
Gross profit 4,914,869 2,483,626
Operating expenses:
Selling, general, and administrative expenses 2,089,473 3,145,476
Research and development expenses 1,886,696 1,779,802
Non-recurring expenses 1,223,862
__________ __________
Total operating expenses 5,200,031 4,925,278
Loss from operations (285,162) (2,441,652)
Interest income, net 92,294 72,744
Other (expense) income (16,680) 26,595
__________ __________
Loss before income taxes (209,548) (2,342,313)
Income tax (benefit) expense (493,408) 83,901
__________ __________
Net income (loss) $ 283,860 $(2,426,214)
Income (loss) per share
Basic $ - $ (0.51)
Diluted $ - $ (0.51)
Shares used in computing income (loss) per share
Basic 4,854,350 4,717,053
Diluted 4,927,590 4,717,053
See accompanying notes to the consolidated financial statements.
PREMIS Corporation
Consolidated Statement of Stockholders' Equity
For the Years Ended March 31, 1999 and 1998
Stock
Common Stock Additnl Subscrip- Cumulative
________________ Paid-in tion Re- Accumultd Transltn
Shares Amount Capital ceivable Deficit Adjustment Total
Balance at
March 31,
1997 4,734,027 $47,340 $9,702,940 $ - $(5,406,695) $(5,524) $4,338,061
Stock issued
through the
exercise of
stock
options 8,750 88 1,662 1,750
Repurchase
of common
stock (28,600) (286) (60,493) (60,779)
Currency
translation
adjustment 10,018 10,018
Net loss (2,426,214) (2,426,214)
Compre-
hensive
loss (2,416,196)
Balance at
March 31,
1998 4,714,177 47,142 9,644,109 - (7,832,909) 4,494 1,862,836
Stock
issued
through
exercise
of stock
options 307,600 3,076 52,055 (51,000) 4,131
Repurchase
of common
stock (58,600) (586) (35,966) (36,552)
Adjustment
of shares
outstanding (88,000) 880 (880)
Currency
translation
adjustment 297,590 297,590
Net income 283,860 283,860
Comprehensive
income 581,450
Balance at
March 31,
1999 5,051,177 $50,512 $9,659,318 $(51,000) $(7,549,049) $302,084 $2,411,865
See accompanying notes to the consolidated financial statements.
PREMIS Corporation
Consolidated Statement of Cash Flows
For the Years Ended March 31, 1999 and 1998
Year Ended March 31,
1999 1998
Cash flows from operating activities:
Net income (loss) $ 283,860 $ (2,426,214)
Adjustments to reconcile net loss to net
cash provided from (used by) operating activities:
Depreciation and amortization 283,215 342,166
Proceeds from note receivable 96,819 104,158
Non-recurring charges 1,042,174
Net gain on disposal of fixed assets (62,249)
Changes in assets and liabilities,
net of effect from acquisition:
Accounts receivable 494,323 1,526,436
Refundable income taxes (114,547) 97,393
Inventory 12,591 383,704
Cost and estimated earnings in excess of billings 90,097 74,440
Prepaids and other assets 159,731 177,034
Deferred taxes 133,921
Accounts payable (207,359) (353,306)
Accrued liabilities (228,849) (310,549)
Unearned income (402,838) (115,403)
__________ __________
Net cash provided from (used by)
operating activities 1,446,968 (366,220)
Cash flows from investing activities:
Purchase of property and equipment (89,388) (180,473)
__________ __________
Net cash used by investing activities (89,388) (180,473)
Cash flows from financing activities:
Repayments of line of credit (245,820)
Repurchase of common stock (36,552) (60,779)
Proceeds from notes payable 47,500
Exercise of common stock options 4,131 1,750
Repayment of debt (159,944) (213,934)
Capital lease obligations (40,986) (55,690)
__________ __________
Net cash used by financing activities (233,351) (526,973)
Effect of exchange rate changes on cash 297,590
Net increase (decrease) in cash 1,421,819 (1,073,666)
Cash and cash equivalents at beginning of year 1,359,773 2,433,439
__________ __________
Cash and cash equivalents at end of year $ 2,781,592 $ 1,359,773
As described in Note 13, a net capital lease asset of $728,324 and related
lease obligation of $814,394 were converted to an operating lease in November
1998.
See accompanying notes to the consolidated financial statements.
PREMIS Corporation
Notes to Consolidated Financial Statements
March 31, 1999 and 1998
1. Organization
PREMIS Corporation (the "Company") has historically developed, marketed and
supported a line of enterprise-wide solutions to meet the information needs of
multi-store specialty and general merchandise retailing chains. The Company's
information management software systems are designed to assist businesses with
the day-to-day management of their operations and long-term strategic planning.
On May 7, 1999, the Board of Directors of the Company adopted the Plan of
Liquidation. The Company is seeking ratification and approval of the Board's
action and the affirmative adoption of the Plan of Liquidation by the
stockholders. The Plan of Liquidation provides that upon adoption by the
stockholders, the Company will proceed to liquidate its assets and to dissolve
its corporate existence in accordance with Minnesota law.
Assuming the Plan of Liquidation is approved by the stockholders at the Annual
Meeting, the Board of Directors will proceed in the following manner: 1) The
Company will file a Notice of Intent to Dissolve with the Minnesota Secretary
of State. 2) The Board will collect monies owed to the Company and sell the
Company's assets in one or more transactions. 3) The Company will pay or
provide for payment of all debts and liabilities of the Company and all
expenses of liquidation and dissolution (to the extent of available funds
realized upon the sale of the Company's assets plus existing cash on hand). 4)
After all assets of the Company have been reduced to cash and all creditors'
claims have been paid or provided for, and if there then are no pending legal,
administrative or arbitration proceedings (or adequate provisions have been
made to satisfy any liability arising from such proceedings), the Company will
distribute all remaining assets (consisting solely of cash) to the
stockholders. Following this distribution, the Company will file Articles of
Dissolution with the Secretary of State of Minnesota and will take any and all
other necessary or appropriate actions to dissolve and to terminate the
Company's existence.
In anticipation of the approval of the Plan of Liquidation, the Company
restructured its operations, including the closing of its Canadian operations
during February and March 1999. Severance agreements have been signed by all
Canadian employees, and the Company has provided for all anticipated costs of
this closing as discussed in Note 8. Additionally, the Company has
significantly reduced head count in the United States, and has provided for all
related severance agreements.
2. Accounting Policies
Basis of Presentation
The consolidated financial statements include the accounts of the Company and
its subsidiary. All intercompany balances and transactions have been
eliminated in consolidation.
Supplemental Cash Flow Information
Year Ended March 31,
1999 1998
Cash paid during the year for interest $ 75,596 $ 142,425
Cash and Cash Equivalents
The Company considers all highly liquid investments with a maturity of three
months or less when purchased to be cash equivalents.
Inventories
Inventories are stated at the lower of cost (first-in, first-out) or market.
Inventories consist primarily of computer equipment held for resale.
Property and Equipment
As discussed in Note 1, the Company shut down its Canadian operations and is in
the process of winding up its U.S. operations. Management estimated the
impairment of fixed assets as $408,094 based upon the estimated realizable
value of $45,000 for the Company's fixed assets. The impairment is included in
the non-recurring expenses in the statement of operations. Depreciation
expense during 1999, prior to the impairment determination, was $200,350.
Property and equipment at March 31, 1999, were stated at cost and depreciated
for financial statement purposes on a straight-line basis over the estimated
useful life of the assets. Depreciation expense for the year ended March 31,
1998 was $259,717. A summary of property and equipment was as follows:
Depreciation Lives 1999
Building capital lease 10 years $ 950,000
Furniture and equipment 5 - 7 years 837,126
Leasehold improvements 7 years 76,994
Less accumulated
depreciation and amortization (547,919)
__________
$ 1,316,201
Software Distribution Rights
The Company has acquired certain software marketing licenses and distribution
rights. The costs are capitalized and amortized using the straight-line method
over the term of the agreements which range from three to five years. These
costs were fully amortized as of March 31, 1999.
Foreign Currency Translation and Transactions
Foreign assets and liabilities are translated using the fiscal year-end rates
of exchange. Results of operations are translated using the average exchange
rates throughout the period. Translation gains or losses are accumulated as a
separate component of stockholders' equity.
Research and Development Costs
Research and development expenditures are charged to operations as incurred.
Statement of Financial Accounting Standards No. 86, "Accounting for the Costs
of Computer Software to be Sold, Leased or Otherwise Marketed," requires
capitalization of certain software development costs subsequent to the
establishment of technological feasibility of the products in development.
Costs have not been capitalized because post-technological feasibility costs
are immaterial.
Revenue Recognition
System sales include software license, hardware and long-term system
installation contract revenue. The Company records revenues from software
licenses and hardware upon installation and customer acceptance. Revenues
derived from system maintenance contracts are deferred and recognized ratably
over the contract period.
Revenues under long-term system installation and consulting contracts are
recognized over the period the Company satisfies its obligation using the
percentage-of-completion method. Progress on the contracts is measured by the
percentage of project hours incurred to date to the total estimated number of
project hours for each contract. Management considers project hours to be the
best available measure of progress on these contracts. Changes in conditions
and estimated earnings may result in review of estimated costs and earnings
during the course of the contract and are reflected in the accounting period in
which the facts which require the revisions become known. In the normal course
of business, the Company may also be subject to a risk of loss by incurring
costs to complete a contract in excess of the fixed bid price.
Net Income (Loss) Per Share
The Company accounts for income taxes in accordance SFAS No. 128, "Earnings Per
Share." SFAS No. 128 applies to entities with publicly held common stock, and
requires dual presentation of basic and diluted earnings per share for entities
with complex capital structures. Basic earnings per share includes no dilution
and is computed by dividing net income (loss) available to common stockholders
by the weighted average number of common shares outstanding for the period.
Diluted earnings per share reflects the potential dilution of securities that
could share in the earnings of an entity.
A reconciliation of denominators of the basic and diluted income (loss) per
share computations for the years ended March 31, 1999 and 1998 is presented
below:
1999 1998
Net income (loss) $ 283,860 $ (2,426,214)
____________ _____________
Shares calculation:
Weighted average basic shares outstanding 4,854,350 4,717,053
Effect of dilutive securities
Options 73,240
____________ _____________
Total shares used to compute diluted
income (loss) per share 4,927,590 4,717,053
____________ _____________
Net income (loss) per share:
Basic $ 0.06 (0.51)
____________ _____________
Diluted $ 0.06 $ (0.51)
____________ _____________
Income Taxes
The Company accounts for income taxes under the liability method of accounting.
Deferred tax assets and liabilities are determined based on the difference
between the financial statement and tax basis of assets and liabilities,
reduced by valuation allowances as necessary.
Fair Value of Financial Instruments
The Company's financial instruments consist of cash and cash equivalents,
short-term trade receivables and payables for which current carrying amounts
approximate fair market value. Additionally, interest rates on outstanding
debt are at rates which approximate market rates for debt with similar terms
and average maturities.
Use of Estimates
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions
that affect the reported amounts of assets and liabilities and disclosure of
contingent assets and liabilities at the date of the financial statements and
the reported amounts of revenue and expenses during the reporting period.
Actual results could differ from those estimates.
3. United States Postal Service and NCR Corporation Revenues
In September 1996 (prior to the Company's acquisition of REF Retail
Systems Corp. Incorporated "REF"), REF entered into a subcontractor arrangement
with NCR Corporation ("NCR") in support of the United States Postal Service
("USPS") POS ONE project. The USPS POS ONE project was awarded on August 13,
1996 to NCR and IBM Corporation. Under this project, the USPS is upgrading and
opening new retail stores in various post office locations throughout the United
States. NCR's portion of the POS ONE contract involves installation of new POS
software and equipment for approximately half of the USPS retail workstations.
Under the subcontractor arrangement with NCR, the Company's OpenStore product
framework and architecture served as the foundation of the point-of-sale
software utilized by NCR in support of NCR's POS ONE contract with USPS.
In August 1998, the Company announced a software license agreement with
NCR which amended the terms of utilization of the Company's commercial
OpenStore technology in the USPS POS ONE program. The NCR agreement eliminated
the Company's obligations under its previous POS ONE subcontract with NCR to
deliver point-of-sale software to the USPS in support of the POS ONE project
and allowed the Company to focus its resources exclusively on the commercial
development of OpenEnterprise products. In August 1998, the Company received
the first of two payments of $3,250,000 under the NCR agreement. The second
$3,250,000 payment is contingent upon award by the USPS of Phase II of the POS
ONE project to NCR. Such award has not been made and no date for decision has
been announced.
Sales to the USPS represented 63% and 24% of total revenues during 1999 and
1998, respectively. Additionally, the USPS represented 0% and 16% of trade
accounts receivable at March 31, 1999 and 1998, respectively. NCR accounted
for 3% and 43% of total revenues during 1999 and 1998, respectively and 65% and
30% of year-end trade accounts receivable at March 31, 1999 and 1998,
respectively.
4. Costs, Estimated Earnings and Billings on Uncompleted Contracts in
Progress
Costs, estimated earnings and billings on uncompleted contracts are summarized
as follows:
1998
Costs incurred on uncompleted contracts $ 184,640
Estimated earnings 133,705
_________
318,345
Billings to date 228,248
_________
Costs and estimated earnings in excess of billings $ 90,097
The amount is included in current assets as all contracts in progress are
expected to be completed within one year. There were no costs and estimated
earnings in excess of billings as of March 31, 1999.
Billings in excess of costs and earnings of $421,816 and $388,288 are included
in unearned income at March 31, 1999 and 1998, respectively.
5. Lease Commitments
The Company is obligated under various capital and operating leases for
equipment and office facilities. The future payments due under noncancelable
operating leases, excluding executory costs such as management and maintenance
fees, are as follows:
Operating Leases
Fiscal Year Ending March 31,
2000 $ 51,996
2001 51,996
2002 38,997
_________
Total future minimum lease payments $ 142,989
Total rent expense under operating leases was approximately $159,000 and
$235,000 for the years ended March 31, 1999 and 1998, respectively.
6. Stock Options
The PREMIS Corporation 1994 Employee Stock Option Plan (the "Plan") was adopted
to provide incentives to selected eligible officers and key employees of the
Company. As adopted, the Plan authorizes qualified options for up to 500,000
shares of common stock. In addition, the Board of Directors has reserved
600,000 shares of common stock for non-qualified stock options. Options
granted typically have five-year terms and vest annually over four years.
The Company has adopted the disclosure only provisions of Statement of
Financial Accounting Standards No. 123, "Accounting for Stock-Based
Compensation," regarding disclosure of pro forma information for stock
compensation. As is allowed by Statement No. 123, the Company will continue to
measure compensation cost using the methods described in Accounting Principles
Board Opinion No. 25, "Accounting for Stock Issued to Employees."
A summary of changes in outstanding options and common shares reserved under
the Plan are as follows:
Weighted-Average
Shares
Available Options Exercise
for Grant Outstanding Price
Balance at March 31, 1997 257,259 1,361,908 $ 3.82
Granted (277,000) 277,000 2.93
Exercised (8,750) 0.20
Canceled 166,500 (166,500) 5.69
__________ __________ ______
Balance at March 31, 1998 146,759 1,463,658 3.45
Granted (767,000) 767,000 1.23
Exercised (307,600) 0.18
Canceled 1,473,900 (1,473,900) 3.47
__________ __________ ______
Balance at March 31, 1999 853,659 449,158 $ 1.17
During 1999, 300,000 options were exercised and shares were issued in exchange
for a promissory note with recourse for $51,000, bearing interest at 5% and due
December 31, 1999. A stock subscription receivable of $51,000 has been
recorded as a reduction to stockholders' equity at March 31, 1999, relating to
this note receivable.
The following table summarizes information about the stock options outstanding
at March 31, 1999:
Options Outstanding Options Exercisable
_________________________________ __________________________
Weighted-
Average Weighted- Weighted-
Remaining Average Average
Range of Number Contractual Exercise Number Exercise
Exercise Price Outstanding Life Price Exercisable Price
$0.15 50,000 .4 years $ 0.15 50,000 $ 0.15
$0.90 - $1.31 354,000 4.1 years 1.15 92,500 1.24
$1.38 - $2.00 20,000 3.4 years 1.56 10,000 1.75
$2.25 - $5.00 25,158 2.7 years 3.11 25,158 3.11
________ _________ ______ _______ ______
449,158 3.8 years $ 1.17 177,658 $ 1.23
Effective April 2, 1998, all stock options for full-time employees priced at
more than $1.31 (346,000 total options) were canceled and reissued at the then
current stock price of $1.31.
Options outstanding under the Plan expire at various dates from 1999 to 2001.
The number of options exercisable as of March 31, 1999 and 1998 were 177,658
and 962,915, respectively. The weighted-average fair value of options granted
during 1999 and 1998 are $1.06 and $2.69, respectively.
Pro forma information regarding net loss and loss per share is required by
Statement No. 123, and has been determined as if the Company had accounted for
its employee stock options under the fair value method of that Statement. The
fair value for these options was estimated at the date of grant using a
Black-Scholes option pricing model with the following weighted-average
assumptions for 1999 and 1998, respectively; risk-free interest rates of 6.2%;
volatility factors of the expected market price of the Company's Common Stock
of 150% and 40%; and a weighted-average expected life of the option of five
years.
For purposes of pro forma disclosures, the estimated fair value of the options
is amortized to expense over the options' vesting period. The pro forma effect
on the net loss for 1999 and 1998 does not take into consideration pro forma
compensation expense related to grants made prior to fiscal 1996. The
Company's pro forma information is as follows:
Year Ended March 31,
1999 1998
Pro forma net income (loss) $(180,892) $ (2,663,598)
Pro forma income (loss) per share,
basic and diluted $ (0.04) $ (0.56)
Stock Warrants
Stock warrants for the right to purchase 188,968 shares of the Company's common
stock at prices between $6.00 and $6.25 have been issued in connection with a
common stock offering and other transactions. The warrants are vested and
expire between September and December 2001.
7. Notes Payable
The Company's notes payable - bank at March 31, 1998 consist of the following
Small Business Development Loans ("SBDL") and installment note which were
secured by substantially all assets of the Company.
1998
Notes payable - bank (SBDL) $ 81,576
Note payable - bank (installment note) 4,138
_________
85,714
Less: Current portion (32,403)
_________
$ 53,311
The Company has other notes payable as follows:
1998
Note payable to an individual $ 42,292
Note payable for purchase of
software license (see Note 13) 8,272
Inventory note payable 23,666
_________
74,230
Less: Current portion (49,438)
_________
$ 24,792
During 1999, the Company paid all outstanding notes payable.
8. Non-recurring Expenses
As discussed in Note 1, the Company shut down its Canadian operations
as of March 31, 1999 and is in the process of winding up its U.S. operations.
The Company recorded a $1,223,862 pretax charge to fourth quarter 1999
earnings, primarily associated with employee separation benefits, fixed asset
impairments, and the write-down of the note receivable discussed in Note 12.
The following table represents the cumulative activity related to the
Company's winding up activities:
1999 Balance at
Original March 31,
Charge Usage 1999
Severance $ 330,821 $ 181,688 $ 149,133
Lease termination costs 92,817 92,817
Fixed asset impairment 408,094 408,094
Long-term receivable write-down 325,870 325,870
Customer settlement 66,260 66,260
__________ _________ _________
Total $ 1,223,862 $ 915,652 $ 308,210
The remaining balance of $308,210 is included in accrued liabilities at
March 31, 1999.
9. Income Taxes
Income tax expense is comprised of the following:
1998 1997
Current income tax provision (benefit):
Federal $ (493,408) $ (50,020)
___________ ___________
Total current taxes $ (493,408) $ (50,020)
Deferred income taxes:
Federal (61,000)
State (6,000)
Foreign (1,167,270)
___________ ____________
Total deferred taxes $ (1,234,270)
Valuation allowance 1,368,191
___________ ____________
Income tax (benefit) expense $ (493,408) $ 83,901
A reconciliation of the expected federal statutory rate for the years ended
March 31, 1999 and 1998 is as follows:
1999 1998
U.S. federal statutory tax rate $ (377,000) $ (106,000)
State income taxes, net of federal tax benefit (37,000) (10,000)
Foreign tax provision (benefit) 416,000 (923,000)
Foreign research and development credit (38,000) (184,000)
Valuation allowance (350,048) 1,368,191
Other (107,360) (61,290)
__________ ___________
$ (493,408) $ 83,901
Deferred tax assets (liabilities) are comprised of the followin at March 31:
1999 1998
Allowance for doubtful accounts $ $ 39,000
Excess book depreciation over tax 236,000 67,000
Net operating loss carryforwards 694,000 1,277,000
Foreign Business credit carryforwards, net 431,000 393,000
Deferred facility costs 43,000
Other 52,143 11,191
___________ ___________
Gross deferred tax assets 1,413,143 1,763,191
Less valuation allowance (1,413,143) (1,763,191)
___________ ___________
Net deferred tax asset $ - $ -
A valuation allowance was provied to account for uncertainties regarding the
recoverablitiy of certain foreign tax credit and operating loss carryforwards.
The foreign operating loss carryforwards are comprised of $58,000 and $636,000
in the United States and Canada, respectively, and expire in 2019 and 2005.
10. Purchase of Software License and Distribution Rights
During fiscal year 1995, PREMIS purchased a software license and distribution
rights for a period of five years for $403,910. In addition to the purchase
price, the Company must make contingent royalty payments based on a percentage
of the net cash receipts from related sales. The Company capitalized the
purchase price as software distribution rights and amortized the amount over
the term of the agreement. Amortization of $82,865 and $80,782 is included in
cost of sales for the years ended March 31, 1999 and 1998, respectively.
11. Employee Benefits
The Company has a retirement savings plan which qualifies under the Internal
Revenue Code Section 401(k) which covers substantially all U.S. employees of
the Company. All employees with at least 90 days of employment are eligible to
participate in the Plan. The Company's contributions to the Plan are based on
15% of employee contributions which are subject to salary limitations. Company
contributions to the Plan were approximately $7,989 and $3,312 for the year
ended March 31, 1999 and 1998, respectively. There was no discretionary
Company contribution in fiscal 1999.
The Company has a defined contribution employee retirement plan covering
substantially all Canadian employees of the Company. All employees with at
least one year of employment are eligible to participate. The Company's
contributions to the Plan range from 1% to 2% of the employee's compensation
depending upon length of service. The Company recognized expense of $2,391 and
$5,357 for contributions to the Plan for the year ended March 31, 1999 and
1998, respectively.
12. Software License and Distribution Agreement
On January 1, 1997, the Company and an unaffiliated corporation entered into a
software license and distribution agreement. The Company, in exchange for the
granting of exclusive worldwide rights to the Advantage System and providing
training and other contract work over a limited time period, received a note
receivable for $651,000. The note receivable is payable in 60 equal monthly
installments of $14,481 and bears interest at 12% At March 31, 1999, the
outstanding balance of the note receivable was written down to management's
estimate of its net realizable value of $100,000, which is included in current
assets. Licensing revenue was recognized ratably over two years and all
training and contract revenue is recognized as services are performed.
Unearned revenue at March 31, 1999 and 1998 was $0 and $186,750, respectively.
13. Related Party Transaction and Commitment
Effective September 1, 1996, the Company entered into a lease agreement for its
executive offices and operations which was recorded as a capital lease. The
facility was owned by a limited liability partnership controlled by two
officers, directors and principal stockholders of the Company. The lease had
an initial ten-year term with monthly base rent of $13,477 and two successive
two-year options for renewal. On June 30, 1996, the Company prepaid $105,000
in base rent, which reduced the minimum monthly base rent by $2,816 for the
first 44 months of the lease (an aggregate credit of $105,000 plus 9% interest
per annum). In November 1998, the related parties sold the facility was sold
to an unrelated party and the Company signed a new operating lease. See Note 5
for discussion of the related commitment.
14. Segment Information and Foreign Operations
The Company conducts its business within one industry segment: software and
services for point of sale customers. Canadian operations include the wholly
owned subsidiary, PREMIS Systems Canada Incorporated.
Revenues, net income and identifiable assets by geographic area are summarized
as follows:
For the Years Ended
March 31,
__________________________
1999 1998
Revenues from unaffiliated customers:
Domestic operations $ 1,147,014 $ 3,440,191
Canadian operations 4,318,837 2,505,187
___________ ___________
Consolidated $ 5,465,851 $ 5,945,378
Net income (loss):
Domestic operations $ (648,985) $ (312,645)
Canadian operations 932,845 (2,113,569)
___________ ___________
Consolidated $ 283,860 $(2,426,214)
As of March 31,
__________________________
1999 1998
Identified assets:
Domestic operations $ 3,281,155 $ 3,561,894
Canadian operations 66,077 782,469
___________ ___________
Consolidated $ 3,347,232 $ 4,344,363
Transaction gains and losses recorded in income in 1999 and 1998 were
immaterial. There were no intercompany revenues in fiscal years 1999 and 1998.
15. Subsequent Event
In April 1999, the Company entered into an agreement with an unrelated party to
sell all outstanding shares of PREMIS Systems Canada for $1 million, subject to
stockholder approval. The Company also granted the purchaser an irrevocable
and exclusive worldwide license to Open Enterprise.
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