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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
April 9, 2000
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Date of Report (Date of earliest event reported)
SEDONA CORPORATION
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(Exact name of registrant as specified in its charter)
Pennsylvania 0-15864 95-4091769
(State or other (Commission (IRS Employer
jurisdiction of File No.) Identification
incorporation) No.)
649 North Lewis Road Limerick, Pennsylvania 19468
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code:
610-495-3003
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Not applicable
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Former name or former address, if changed since last report)
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS.
On April 9, 2000, Sedona Corporation acquired Acxiom Corporation's
Customer Information Management System, or CIMS, business unit. CIMS is a
provider of customer relationship management ("CRM") software. As a result of
this transaction, Sedona will enhance the development of its Internet-based CRM
strategy by obtaining a comprehensive CRM product suitable for smaller to
mid-sized businesses and approximately 80 client accounts.
In connection with the transaction, Sedona will issue $1.5 million in
8% convertible preferred stock and warrants exercisable into 247,934 shares of
Sedona common stock at an exercise price of $3.025 per share. Sedona also will
pay Acxiom a 10% royalty fee on all collections of license fees derived from
CIMS technology, such royalties to be not less than $1 million over the three
year period following the acquisition and assume certain liabilities related
principally to the service and warranty contracts assigned by Acxiom to Sedona.
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ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(a) Financial Statements of Business Acquired-None
(b) Pro Forma Financial Information - to be filed by amendment within
60 days.
(c) Exhibits. See Exhibit Index.
EXHIBIT INDEX
The following exhibits are filed as part of this Current Report on Form 8-K:
Exhibit
No.
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2 Asset Purchase and Sale Agreement between Acxiom Corporation and
SEDONA Corporation, dated April 9, 2000.
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SIGNATURES
Pursuant to the requirements 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.
SEDONA CORPORATION
Dated: 4/24/2000 By: /s/ Marco A. Emrich
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Marco A. Emrich
President and Chief Executive
Officer
Dated: 4/24/2000 By: /s/ William K. Williams
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William K. Williams
Vice President and Chief Financial
and Accounting Officer
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EXECUTION COPY
ASSET PURCHASE AND SALE AGREEMENT
BY AND AMONG
ACXIOM CORPORATION
("SELLER")
and
SEDONA CORPORATION
("BUYER")
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TABLE OF CONTENTS
PAGE
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1. DEFINITIONS...........................................................1
(a) "AGREEMENT"..................................................1
(b) "ASSETS".....................................................1
(c) "BUSINESS"...................................................1
(d) "BUSINESS TECHNOLOGY"........................................1
(e) "BUYER"......................................................1
(f) "CLOSING"....................................................1
(g) "COMMON STOCK"...............................................2
(h) "CLOSING DATE"...............................................2
(i) "EXCLUDED ASSETS"............................................2
(j) "PREFERRED STOCK"............................................2
(k) "OPERATING AGREEMENT"........................................2
(l) "SELLER".....................................................2
(m) "WARRANTS"...................................................2
2. PURCHASE AND SALE OF ASSETS...........................................2
3. PURCHASE PRICE........................................................3
4. PRORATION.............................................................5
5. ACCOUNTS RECEIVABLE...................................................5
6. LIABILITIES...........................................................5
7. NONCOMPETITION AGREEMENT..............................................6
8. REPRESENTATIONS AND WARRANTIES OF THE SELLER..........................7
(a) ORGANIZATION.................................................7
(b) AUTHORIZATION................................................7
(c) VALIDITY.....................................................7
(d) NO CONSENTS..................................................7
(e) FINANCIAL INFORMATION........................................7
(f) TITLE........................................................7
(g) NO UNDISCLOSED LIABILITIES...................................7
(h) LITIGATION...................................................8
(i) CONTRACTS....................................................8
(j) TAX MATTERS..................................................8
(k) PRODUCT PROGRAMS.............................................8
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(l) BROKERS......................................................9
(m) CONDITION OF THE ASSETS......................................9
(n) ACCOUNTS RECEIVABLE..........................................9
(o) TRADEMARKS AND TRADENAMES....................................9
(p) CHANGES IN BUSINESS..........................................9
9. REPRESENTATIONS AND WARRANTIES OF THE BUYER...........................9
(a) ORGANIZATION.................................................9
(b) AUTHORIZATION................................................9
(c) NO CONFLICTS................................................10
(d) CAPITALIZATION..............................................10
(e) PREFERRED STOCK.............................................10
(f) LITIGATION..................................................10
(g) COMPLIANCE WITH LAWS........................................10
(h) VALIDITY....................................................10
(i) BROKERS.....................................................10
10. COVENANTS OF THE BUYER...............................................11
11. COVENANTS OF THE SELLER..............................................11
(a) SOFTWARE INDEMNIFICATION....................................11
(b) CONDUCT OF BUSINESS.........................................11
(c) INFORMATION.................................................12
(d) CONSENTS....................................................12
(e) NOTICE OF LITIGATION........................................13
(f) DISCLOSURE..................................................13
(g) INTENTIONALLY DELETED.......................................13
(h) CORPORATE SUPPORT...........................................13
(i) EXTENSION OF CREDIT.........................................13
(a) TIME AND PLACE..............................................13
(b) DELIVERIES AT THE CLOSING BY THE SELLER.....................13
(c) DELIVERIES BY THE BUYER.....................................14
(d) DELIVERIES AFTER CLOSING....................................14
13. CONDITIONS TO BUYER'S OBLIGATIONS....................................15
(a) REPRESENTATIONS, WARRANTIES AND COVENANTS...................15
(b) NO ADVERSE PROCEEDINGS......................................15
(d) CONSENTS....................................................15
(e) NO MATERIAL ADVERSE CHANGE..................................15
(f) NO OTHER MATERIAL ADVERSE FACT OR CONDITION.................16
(g) AUDITED FINANCIAL STATEMENTS................................16
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14. CONDITIONS TO SELLER'S OBLIGATIONS...................................16
(a) REPRESENTATIONS, WARRANTIES AND COVENANTS...................16
(b) NO ADVERSE PROCEEDINGS......................................16
15. INDEMNIFICATION.......................................................16
(a) INDEMNIFICATION BY SELLER...................................16
(b) INDEMNIFICATION BY BUYER....................................16
(c) NOTICE AND DEFENSE..........................................17
(a) ASSIGNMENT..................................................20
(b) FURTHER ASSURANCES..........................................20
(c) MODIFICATION................................................20
(d) BINDING EFFECT AND BENEFIT..................................20
(e) HEADINGS AND CAPTIONS.......................................20
(f) NOTICE......................................................20
(g) SEVERABILITY................................................21
(h) WAIVER......................................................21
(i) RIGHTS AND REMEDIES CUMULATIVE..............................21
(j) GENDER AND PRONOUNS.........................................21
(k) ENTIRE AGREEMENT............................................21
(l) GOVERNING LAW...............................................22
(m) INCORPORATION BY REFERENCE..................................22
(n) COUNTERPARTS................................................22
(o) AUTHORITY...................................................22
(p) RULES OF CONSTRUCTION.......................................22
(q) RESOLUTION OF DISPUTES......................................22
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ASSET PURCHASE AND SALE AGREEMENT
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THIS ASSET PURCHASE AND SALE AGREEMENT is executed effective as of
April 1, 2000, by and between Acxiom Corporation (the "Seller"), a Delaware
corporation, and Sedona Corporation (the "Buyer"), a Pennsylvania corporation.
W I T N E S S E T H:
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WHEREAS, Seller is engaged in the business of designing and
implementing customer information management systems in its business unit
located in Minneapolis, Minnesota; and
WHEREAS, Seller desires to sell to Buyer, and Buyer desires to purchase
from Seller all of the assets used in connection with or otherwise associated
with such business unit, except such assets expressly excluded herein.
NOW THEREFORE, in exchange for the mutual promises, covenants and other
agreements contained herein, the parties hereto, intending to be legally bound,
agree as follows:
1. DEFINITIONS. Certain of the capitalized terms used in this Agreement
shall have the following meanings, unless the context otherwise specifically
requires:
(a) "AGREEMENT" shall mean and refer to this Asset Purchase
and Sale Agreement and the exhibits and schedules attached hereto and made a
part hereof.
(b) "ASSETS" shall have the meaning set forth in Section 2
hereof.
(c) "BUSINESS" shall mean and refer to Seller's business
located in Minneapolis, Minnesota which utilizes the assets in the operation of
Seller's business "referred to as Customer Information Management System or
'CIMS.'"
(d) "BUSINESS TECHNOLOGY" shall mean and refer to (i) all
Customer Information Management Systems ("CIMS") software, including any
derivatives and updates; and any data extractor components and all other
intellectual property associated with CIMS.
(e) "BUYER" shall mean and refer to Sedona Corporation, a
Pennsylvania corporation.
(f) "CLOSING" shall mean the event occurring on the Closing
Date and time when the transaction contemplated by this Agreement is consummated
and title to the Assets is transferred from Seller to Buyer pursuant to the
terms hereof.
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(g) "COMMON STOCK" shall mean and refer to Buyer's common
stock as currently traded on NASDAQ under the symbol "SDNA."
(h) "CLOSING DATE" shall mean April 1, 2000.
(i) "EXCLUDED ASSETS" shall mean and refer to cash and certain
other assets, including intercompany assets and deposits of Seller; and the
specific items of property are listed on Schedule 1(i).
(j) "PREFERRED STOCK" shall mean and refer to Buyer's Class A,
Series H convertible preferred stock.
(k) "OPERATING AGREEMENT" shall mean and refer to the
Operating Agreement and the Addendum to the Operating Agreement executed by and
between Seller and buyer effective February 1, 2000, and March 31, 2000,
respectively.
(l) "SELLER" shall mean and refer to Acxiom Corporation, a
Delaware corporation.
(m) "WARRANTS" shall mean and refer to Buyer's warrants which
grant Seller the right to purchase Common Stock.
2. PURCHASE AND SALE OF ASSETS. Upon the terms and subject to the
conditions contained herein, Seller agrees to sell, assign, transfer and deliver
to Buyer, and Buyer agrees to purchase, acquire and accept from the Seller, all
of the rights and privileges, assets and other property interests, real,
personal and intellectual of Business, other than the Excluded Assets, as listed
in Schedule 1(i), which are used directly in connection with or otherwise
associated with the Business or are part of the Business Technology as of the
Closing Date (collectively, the "Assets"), including without limitation, the
following:
(a) All of Seller's accounts receivable of Business and
work-in-process of Business which have accrued prior to Closing, including, but,
not limited to the accounts receivable as listed in Schedule 2(a) as of March
31, 2000 and updated as of Closing (collectively the "Accounts Receivable");
(b) All of Seller's inventories of goods, merchandise and
materials, including without limitation, all property held for resale in the
ordinary course of the Business and located at the situs of the Business;
(c) All of Seller's furniture, fixtures, equipment, trade
fixtures, shelving, signs, tools, spare parts and all relevant business
operating records and documentation in all media forms of the Business located
at the situs of the Business, including without limitation, the property as
described on Schedule 2(c) hereto;
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(d) All of Seller's hardware and software, both source and
object code directly relating to the Business and/or used in the Business and
located at the situs of the Business as described on Schedule 2(d) hereto;
(e) All of Seller's maintenance contracts, service agreements,
purchase orders, customer contracts and other contracts related to the operation
of the Business as described on Schedule 2(e) (the "Contracts");
(f) All of Seller's technical assets of Business including but
not limited to all Business Technology, and other intellectual property used
directly in the Business, including all modifications to various versions of
such technology located at the situs of the Business;
(g) All of Seller's books and records, or copies thereof used
in the Business (including, without limitation, customer lists and records,
prospect lists, files, equipment records, documents, catalogs, files, operating
manuals and other similar data in all media forms relating to the Business
property to be sold to Buyer hereunder);
(h) All of Seller's warranties, to the extent transferable, of
any predecessor, manufacturer, supplier or vendor with respect to any of the
Business property being sold to Buyer hereunder; and
(i) All of Seller's interest, if any, in the name "Customer
Information Management System or CIMS;" provided however, the parties
acknowledge that Seller has not licensed the name or formally established any
proprietary rights with regard thereto nor has Seller provided any
representation to Buyer regarding the use of the name after Closing.
The Assets will be transferred to Buyer free and clear of all liens,
claims, encumbrances, security interests and adverse rights or interests
whatsoever except those specifically assumed liabilities set forth in Paragraph
3(d) and relating to customer claims that may arise hereafter.
3. PURCHASE PRICE.
(a) The purchase price for the Assets shall be equal to the
sum of (i) one million five hundred thousand dollars ($1,500,000) payable to
Seller in shares of Buyer's convertible Preferred Stock at a stated price of one
thousand dollars ($1,000) per share for a total of one thousand five hundred
(1,500) shares, and (ii) two hundred forty-seven thousand, nine hundred and
thirty-four (247,934) of Buyer's Warrants to purchase Buyer's Common Stock.
(b) The shares of Preferred Stock shall be duly authorized and
issued to Seller on the Closing Date and shall accrue a dividend at the rate of
eight percent (8%) per annum beginning the first calendar day after Closing and
continuing thereafter until converted. The dividend shall be paid in cash by the
end of the tenth (10th) business day following the end of each calendar quarter.
The shares of Preferred Stock shall be convertible for a period of thirty-three
(33) months from
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Closing at Buyer's option; and if not converted by Buyer on or before the last
day of the 33rd month, then Seller shall have the option for three (3) months
thereafter to convert the shares of Preferred Stock; provided however, in the
event the Seller has not converted the Preferred Stock prior to the date which
is thirty-six (36) months from Closing, then the Preferred Stock shall
automatically convert on that date into Buyer's Common Stock. The amount of
Preferred Stock to be converted shall be calculated as follows: the numerator
shall be the amount of principal being converted by Seller divided by a
denominator which shall be equal to the product of ninety-five percent (.95) of
the average of the closing price of the Common Stock for the preceding twenty
(20) trading days prior to conversion.
(c) The Warrants shall be duly authorized and issued to Seller
on the Closing Date and shall expire on the fifth anniversary of the Closing
Date; provided however, the Warrants may be exercised to purchase an equal
number of shares of Buyer's Common Stock at any time prior to expiration. The
exercise price of the Warrants shall be three dollar and 25/1000 ($3.025) per
share; said Warrants to be in the form substantially similar to that attached
hereto as Exhibit A.
(d) The assumption of liabilities as set forth on Schedule
3(d).
(e) In the event Buyer is not able to collect more than fifty
thousand dollars ($50,000) of the Accounts Receivable set forth on Schedule 2(a)
by the end of the period which is six (6) months after Closing, then Buyer will
have the option to propose a "Receivable Adjustment" to the purchase price,
pursuant to the following:
(i) Within fifteen days following six months after
Closing, Buyer shall cause to be prepared and delivered to Seller a schedule of
all accounts receivable on Schedule 2(a) which have not been collected and to
the extent the aggregate sum of the items on the schedule exceed fifty thousand
dollars ($50,000) (the "Basket") the excess shall be the proposed "Receivable
Adjustment." Failure of Buyer to provide Seller with a Receivable Adjustment
within the foregoing time period shall cause Buyer's option to propose an
adjustment to lapse, and there shall be no adjustment.
(ii) Upon receipt of the proposed Receivable
Adjustment, the Seller may conduct an audit of Buyer's Receivable Adjustment and
prepare any proposed adjustments ("Proposed Adjustment"). The Proposed
Adjustment shall be provided to Buyer within fifteen (15) days following receipt
by Seller of the Receivable Adjustment. Failure of Seller to provide Buyer a
proposed adjustment within fifteen (15) days shall be deemed agreement with the
Receivable Adjustment.
(iii) In the event the parties agree to a "Receivable
Adjustment," then the Receivable Adjustment shall be applied initially to any
minimum Royalty Payments, as hereinafter defined, thereafter due and payable to
Seller. Any dispute as to the Receivable Adjustment shall be resolved pursuant
to Section 22(q).
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(f) To the extent the Accounts Receivable, less all cash
directly related thereto which has been received but not yet posted to the
appropriate Account Receivable, is greater than or less than three hundred
eighty thousand dollars ($380,000) at Closing, then the parties agree that the
amount over or under three hundred eighty thousand dollars ($380,000) shall be
added to or subtracted from, as the case may be, the Basket.
4. PRORATION.
(a) Subject to the Operating Agreement, income and expenses
(including rents, utilities and other similar items) with respect to the
Business, shall be prorated and allocated between the parties as of the close of
business on the Closing Date. To the extent practical, a reconciliation and
payment of prorated items shall take place at the Closing, and to the extent not
practical, the reconciliation shall take place as soon as reasonably practical
and payment by either party to the other party then being made not later than
sixty (60) days following the Closing Date.
(b) For six (6) months following Closing, the parties agree to meet on
the fifteenth (15th) business day of each month to reconcile any income and
expense items that have been received or incurred by either party which may be
due the other party.
5. ACCOUNTS RECEIVABLE. After Closing, Seller and Buyer agree to
mutually work together to resolve any issues regarding the Accounts Receivable,
and Seller shall designate an Acxiom associate to thereafter be available to
assist Buyer with any questions regarding the Accounts Receivable. To the
knowledge of Seller, Schedule 2(a) sets forth a complete list of all Accounts
Receivable as of March 31, 2000, which are outstanding with respect to the
period prior to Closing, except for receivables which will accrue from March 31
until Closing, which shall also be assigned to and assumed by Buyer, except as
agreed upon in Section 3(e)(iii) above. To the extent not specifically
designated by a customer, payments received shall be credited to the oldest
invoices outstanding first. Buyer shall assume sole responsibility for the
collection of the Accounts Receivable which are being purchased, except as
agreed above.
6. LIABILITIES.
(a) Except as specifically listed on Schedule 6, the parties
acknowledge and agree that Buyer is not assuming any liability, debt or other
obligation of the Seller for trade accounts payable, intercompany payables,
accrued employee compensation and benefits, or any accrued expenses attributable
to the period prior to the Closing Date, (direct or indirect, matured or
unmatured, accrued or unaccrued, liquidated or unliquidated, asserted or
unasserted, known or unknown, secured or unsecured, absolute, fixed, contingent
or otherwise) in connection with the transactions contemplated by this
Agreement; provided however, Buyer shall assume all related obligations arising
from the Contracts being purchased including but not limited to all deferred
revenue contractual liabilities incurred in the ordinary course of business
relating the terms of the Contracts being assumed as provided on Schedule 3(d);
provided further, to the extent any payment shall be due and payable to third
party vendors as a result of an installation or use of such third
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party's software in a solution directly related to the Business, then to the
extent Seller has collected monies associated with such installation prior to
Closing, then Seller shall be responsible for payment to third party vendors. If
Buyer shall have collected monies associated with such installation after
Closing, then Buyer shall be responsible for such payment.
(b) In the event both Buyer and Seller have collected monies, then any
third-party payments or rebates shall be split pro-rata according to the
respective collections of each to all the collections by Buyer and Seller. To
the knowledge of Seller, Schedule 3(d) represents all third party payables
contemplated as of Closing, and Buyer and Seller agree to work cooperatively
after Closing to settle all third party payables which may become due after
Closing based on the foregoing sharing arrangement.
(c) Notwithstanding the foregoing, and for a period of six (6) months,
in the event Buyer is required to refund any monies, that Seller has collected,
pursuant to the refund provisions of the Contracts that Seller has assumed and
the refund is not due to any fault of Buyer, then Seller shall reimburse Buyer
for up to two hundred thousand dollars ($200,000) of the refunds paid to the
Contract customers during the six (6) months following Closing (the "Refund
Adjustment"), and thereafter Seller shall have no further responsibility related
to any refunds of the Contracts. In the event Buyer proposes a Refund
Adjustment, then it must be proposed within fifteen (15) days following six (6)
months after Closing pursuant to the following:
(i) Within fifteen (15) days following six (6) months after
Closing, Buyer shall cause to be prepared and delivered to Seller a schedule of
all refunds which shall be the proposed "Refund Adjustment." Failure of Buyer to
provide Seller with a Refund Adjustment within the foregoing time period shall
cause Buyer's option to propose an adjustment to lapse, and there shall be no
adjustment.
(ii) Upon receipt of the proposed Refund Adjustment, the
Seller may conduct an audit of Buyer's Refund Adjustment. In the event that the
parties disagree, then any dispute as to the Refund Adjustment shall be resolved
pursuant to Section 22(q).
7. NONCOMPETITION AGREEMENT. Notwithstanding currently existing
agreements as of Closing which Acxiom may currently be a party to and only for
purposes of financial institutions with combined assets of less than $5 billion
dollars as of Closing, Seller agrees for the twelve (12) month period following
Closing not to: (i) directly build or develop software applications in the
United States that are directly competitive with the Business being acquired by
Buyer in this transaction; (ii) initiate marketing agreements with competitors
of the Business wherein the purpose of such arrangement is to market a software
application that is directly competitive with the Business being acquired; or
(iii) solicit current customers of the Business, as of Closing, to use a product
that is directly competitive with the Business Technology; provided however, for
purposes of this Section 7, Acxiom shall not be limited to introducing and/or
utilizing any software application in any case wherein Acxiom is also proposing
substantial services to or is already providing other related services to the
customer.
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8. REPRESENTATIONS AND WARRANTIES OF THE SELLER. Seller represents and
warrants to Buyer as follows:
(a) ORGANIZATION. Seller is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware.
Seller has all requisite corporate power and authority to carry on its business
as presently conducted, to enter into and perform its obligations under this
Agreement, and to consummate the transactions contemplated hereby.
(b) AUTHORIZATION. The execution, delivery and performance of
this Agreement by the Seller and the consummation by the Seller of the
transaction contemplated hereby has been duly authorized by all necessary action
on the part of the Seller. A true and correct copy of the resolution by Seller's
Executive Committee approving this transaction is attached hereto as Exhibit B.
(c) VALIDITY. This Agreement has been duly executed and
delivered by the Seller and constitutes the legal, valid and binding obligation
of the Seller, enforceable against the Seller in accordance with its terms.
(d) NO CONSENTS. No consent or approval of, or declaration,
filing or registration with, any governmental agency or other third party is
necessary or otherwise required in connection with the execution, delivery or
performance of this Agreement by the Seller or with respect to the consummation
by the Seller of the transactions contemplated hereby except as specifically
listed on Schedule 8(d).
(e) FINANCIAL INFORMATION. Seller has delivered to the Buyer
true and correct copies of the financial information relating to the Business.
The financial information is true, correct, and complete, and presents fairly
the financial position and results of operation of Seller's Business, as of the
dates and for the periods presented. Seller will use commercially reasonable
efforts to deliver audited financial statements to Buyer in the form prescribed
by the Securities and Exchange Commission in the letter to Buyer dated March 3,
2000 and attached hereto as Exhibit C.
(f) TITLE. Seller owns, beneficially and of record, all of the
Assets, and will convey to the Buyer on the Closing Date, good and valid title
to the Assets, free and clear of all liens, claims, encumbrances, security
interests, restrictions and adverse rights, claims, or interests whatsoever,
including but not limited to, any proprietary claims to the software and
Business Technology which Seller acquired from Deluxe Corporation when the
Assets were acquired by Seller and except for any assumed liabilities in
Schedule 3(d). The Assets constitute all of the assets and properties used in
connection with the Business, save and except the Excluded Assets set forth in
Schedule 1(i).
(g) NO UNDISCLOSED LIABILITIES. With regard to this Agreement
and the Business related thereto, the Seller has no known debts, liabilities or
other obligations, except accounts payable to trade creditors incurred in the
ordinary course of business since December 31, 1999 (the date of the last
financial information).
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(h) LITIGATION. To the knowledge of Seller, there is no
litigation, action, suit, claim, proceeding, audit, inquiry or investigation
pending or, threatened against Seller or Deluxe Corporation relating to or
affecting any of the Assets or Liabilities. Seller is not aware of any basis or
grounds for any such suit, action, claim, inquiry, investigation or proceeding.
To the knowledge of Seller, neither the Seller nor any of the Assets is subject
to or otherwise bound by any outstanding judgment, order, writ, injunction or
decree of any court, governmental agency or arbitration tribunal.
(i) CONTRACTS. Set forth on Schedule 2(e) is a true, correct
and complete list of each material contract relating to the ownership of the
Assets or the operation of the Business as of the date hereof. To the knowledge
of Seller, each of such Contracts is valid, binding and in full force and
effect, is enforceable in accordance with its terms, and true and complete
copies thereof have been delivered to the Buyer, and to the knowledge of Seller,
the Seller has not received any notice terminating, rescinding or otherwise
revoking any material Contract or any terms or provisions thereof, or which
expresses any intent to do so; provided further, to the knowledge of the Seller,
no other party to such Contracts has any intent to take any action to terminate,
rescind or revoke any such Contracts or any term or provision thereof. To the
knowledge of Seller, Seller has performed all obligations and has complied with
all covenants required to be performed and complied with by the Seller under
such Contracts, and Seller is not in breach or violation of, or default under;
and to the knowledge of Seller, the other parties thereto are not in breach or
violation of or default under, any of such Contracts (and no event has occurred
which with notice, lapse of time or both would constitute a breach, violation or
default thereunder).
(j) TAX MATTERS. To the knowledge of Seller, all tax returns
and reports of any nature relating to the Business or the Assets have been
timely and properly prepared and filed with the appropriate governmental agency
and all taxes, assessments and governmental charges of every kind and nature,
(including, without limitation, income, gross receipts, excise, franchise,
property, employment, social security, payroll, sales and use taxes, and any
penalties, interest and additions to tax) required by law to be paid by Seller
have been timely paid prior to delinquency.
(k) PRODUCT PROGRAMS.
(i) To the knowledge of the Seller, Seller owns all
rights to the source code and system documentation directly relating to the
Seller's CIMS software programs (the "Product Programs") and has only disclosed
these Product Programs to employees and consultants having a "need to know" the
contents thereof in connection with the performance of their duties for Seller.
(ii) To the knowledge of Seller, all personnel,
including employees, agents, consultants and contractors who have contributed to
or participated in the conception and development of the Product Programs either
(A) have been a party to a "work-for-hire" arrangement or agreement with Seller,
in accordance with applicable federal and state law, that has accorded Seller
ownership of all tangible and intangible property thereby arising, or (B) have
executed appropriate instruments of assignment in favor of Seller as assignee
that have conveyed to Seller ownership of all tangible and intangible property
thereby arising.
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(iii) To the knowledge of Seller, the Product
Programs, when run in an approved hardware configuration and in the proper
operating environment, substantially meet the specifications and perform the
functions described in the technical documentation of CIMS; provided however,
the Seller does not warrant that (A) the operation of the Product Programs will
be uninterrupted or error-free, or (B) the Product Programs will satisfy the
requirements of Buyer.
(l) BROKERS. Seller has not engaged the services of any broker
or finder in connection with this Agreement, and has not taken any action which
would give rise to a valid claim for a brokerage commission, finder's fee or
like payment.
(m) CONDITION OF THE ASSETS. To the knowledge of Seller, the
Assets are in a good condition and state of repair, and there is no material
defect in the condition of the Assets, ordinary wear and tear excepted.
(n) ACCOUNTS RECEIVABLE. To the knowledge of Seller, the
current list of Accounts Receivable as set forth on Schedule 2(a) is
"substantially collectible," and they have been recorded in the ordinary course
of business in accordance with Seller's past interpretations of generally
accepted accounting principles. In the event Buyer is unable, after using all
commercially reasonable efforts to "substantially collect" the Accounts
Receivable, then Buyer may propose as a Receivable Adjustment to the Purchase
Price as provided in Paragraph 3(e).
(o) TRADEMARKS AND TRADENAMES. To the knowledge of Seller,
there are no trademarks or tradenames used by Seller in connection with the
Business.
(p) CHANGES IN BUSINESS. To the knowledge of Seller, there has
been no change in the Assets or the Business which would have a material adverse
effect upon the Business, the Assets, or the Buyer's continued use and operation
thereof.
9 REPRESENTATIONS AND WARRANTIES OF THE BUYER. Buyer represents and
warrants to Seller as follows:
(a) ORGANIZATION. Buyer is a corporation duly organized,
validly existing and in good standing under the laws of the Commonwealth of
Pennsylvania and has all requisite corporate power and authority to enter into
and perform its obligations under this Agreement and to consummate the
transactions contemplated hereby. A true, correct and complete copy of the
Certificate of Incorporation (the "Certificate") and the Bylaws of the Company,
each in effect as of the date hereof, have been delivered to Seller or its
counsel.
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(b) AUTHORIZATION. The execution, delivery and performance of
this Agreement and all actions contemplated hereunder by the Buyer and the
consummation by the Buyer of the transactions contemplated hereby has been duly
authorized by all necessary action on the part of the Buyer.
(c) NO CONFLICTS. To Buyer's knowledge, neither the execution
nor delivery of this Agreement by the Buyer, nor the consummation by the Buyer
of the transactions contemplated hereby will result in any breach or violation
of or constitute a default (or an event which with notice or lapse of time or
both would constitute a breach, violation or default) under the Articles of
Incorporation or Bylaws of the Buyer or the terms of any contract, instrument or
other agreement to which Buyer is a party or is otherwise bound, or any statute,
rule, regulation, ordinance, law, judgment, decree or order applicable to Buyer
or to which Buyer is bound or subject.
(d) CAPITALIZATION. The authorized stock of the Buyer consists
of (i) 50,000,000 shares of Common Stock, par value $0.001 per share, of which
26,745,398 shares are issued and outstanding as of March 31, 2000; (ii)
1,000,000 shares of Class A preferred stock of which (A) 500,000 shares have
been designated as Series A Convertible Preferred Stock, par value $2.00 per
share, 500,000 of which shares are issued and outstanding; (B) 5,000 shares have
been designated as Series B Convertible Preferred Stock, par value $2.00 per
share, 1,000 of which are issued and outstanding; (C) 1,000 shares have been
designated as Series F Convertible Preferred Stock, par value $2.00 per share,
1,000 of which are issued and outstanding; (D) 3,000 shares have been designated
as Series G Convertible Preferred Stock, par value $2.00 per share, 3,000 shares
of which are issued and outstanding. All of the outstanding shares of Common
Stock of the Buyer have been duly and validly authorized and issued and are
fully paid and non-assessable.
(e) PREFERRED STOCK. The shares of Preferred Stock to be
issued hereunder, and, when issued, the shares of Common Stock into which they
are convertible, have been, or will be upon issuance, duly authorized and, when
issued and paid for as herein provided, will be fully paid and nonassessible,
free and clear of any restrictions on transfer other than any restriction under
the Securities Act of 1933, as amended (the "Securities Act"), and state
securities law.
(f) LITIGATION. Except as set forth on Schedule 9(f), there is
no material claim, action, suit, litigation, arbitration, audit, investigation
or other proceeding pending or, to the knowledge of the directors and/or
officers or employees of the Buyer is threatened against the Buyer.
(g) COMPLIANCE WITH LAWS. The Buyer is in compliance in all
material respects with laws and regulations applicable to its trade or business
and as may be required by the Securities and Exchange Commission, as presently
conducted or as proposed to be conducted.
(h) VALIDITY. This Agreement and all actions required or
contemplated have been duly executed and delivered by the Buyer and constitutes
the legal, valid and binding obligation of the Buyer, enforceable against the
Buyer in accordance with its terms.
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(i) BROKERS. Buyer has not engaged the services of any broker
or finder in connection with this Agreement, and has not taken any action which
would give rise to a valid claim against Buyer for a brokerage commission,
finder's fee or like payment.
10 COVENANTS OF THE BUYER. Buyer covenants and agrees with the Seller
as follows:
(a) Based on the Business Technology being sold and for a
period of thirty-six (36) months following Closing, Buyer shall pay to Seller a
ten percent (10%) royalty fee on all license fees which Buyer, or its successor
or assigns, collects from any third parties, whether monthly fees or otherwise,
related to the use of Business Technology ("Royalty Payments"). Such Royalty
Payments shall be made to Seller based upon gross collections by Buyer, for the
period forty-two (42) months after Closing, attributable to license fees accrued
by Buyer for the thirty-six (36) month period following Closing. Such Royalty
Payments shall be made on a quarterly basis with no less than $1,000,000 and no
more than $2,500,000 in the aggregate being due and payable for the thirty-six
(36) month period. The first payment shall be due and payable within fourteen
(14) days of the end of the first calendar quarter following Closing. If Seller
requests, Buyer shall provide Seller reasonable access to all documentation to
verify the calculation of such Royalty Payments.
(b) Buyer hereby grants Seller a non-exclusive perpetual
license to use the Business Technology and provide all source code, software and
services to Seller for Seller's internal use of the Business Technology,
including all derivatives, and updates, pursuant to the terms and conditions
prevailing for similar such contracts, and Seller and Buyer agree to interim
service level terms, attached hereto as Exhibit D, whereby Buyer shall provide
support to Seller for its internal use of the Business Technology. It is agreed
Seller shall retain a copy of all Business Technology source code, software and
other documentation as may be required for Seller's internal use; provided
however, Buyer shall not be required to provide support to Seller on the
Business Technology to the extent the source code or software is modified by
Seller, or its agents, thereafter.
(c) As soon as reasonably practicable after Closing, Seller
and Buyer shall enter into a reseller agreement which will allow Seller to
bundle into Seller's solutions all of Buyer's products utilizing usual and
customary reseller discounts. In the event Buyer's products are incorporated in
a solution sold by Seller, then the Seller shall pay the Buyer a royalty based
on the price it purchased the product from Seller as more specifically set forth
in the reseller agreement.
(d) Buyer shall take all action necessary to satisfy its
obligations required hereunder, including, but not limited to obtaining all
authorization and consents for the issuance of the Preferred Stock and Warrants.
11 COVENANTS OF THE SELLER. Seller covenants and agrees with the Buyer
as follows:
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(a) SOFTWARE INDEMNIFICATION. Seller will save and hold
harmless and indemnify Buyer from all claims of infringement, invalidity, and/or
ownership of title or right to use and practice the ideas, or the structure,
sequence, and organization of the code of the Business Technology.
(b) CONDUCT OF BUSINESS. Prior to Closing:
(1) The Business shall be carried on only in the
ordinary course, consistent in all material respects with past practices, and no
extraordinary action shall be taken with respect to the Business or any of the
Assets without the prior written consent of the Buyer;
(2) Seller will use commercially reasonable efforts
to preserve and maintain the goodwill of the Business and the goodwill and
existing relationships with its employees, customers and suppliers, and will not
terminate any relationship with any material customer or supplier, or the
employment of any employee without the prior consent of the Buyer, save and
except routine employee dismissals for cause in the ordinary course of business;
(3) Seller will not change in any material respect
the compensation of its employees or amend or otherwise change any employee
benefit plan or adopt any new employee benefit plan;
(4) None of the Assets shall be sold, transferred or
otherwise disposed of, encumbered, or otherwise have any lien to be placed
thereon, save and except sales of inventory to customers in the ordinary course
of business;
(5) Seller will comply with all of its obligations
and covenants under the material Contracts with respect to the Business and the
Assets, and will not terminate, amend or otherwise modify any of the terms
thereof, and will not take any action or omit to take any action which would
(with or without notice, lapse of time or both) constitute a breach, violation
or default thereunder;
(6) Seller will timely pay all of its liabilities,
debts and other obligations as and when they become due and payable; and
(7) Seller will not take any action or fail to take
any action (i) which would impair or materially adversely effect any of the
Assets, (ii) which would constitute a material breach of any representation,
warranty or covenant of Seller hereunder, or which would otherwise cause any
representation or warranty of Seller herein to become false or incorrect, or
(iii) which would otherwise be inconsistent with the terms of this Agreement.
(c) INFORMATION. Prior to Closing, Seller will provide to
Buyer and to Buyer's officers, accountants, counsel and other representatives
reasonable access, during normal business hours, to the Assets, and will
promptly furnish to Buyer all relevant information concerning the Business and
the Assets as the Buyer may reasonably request.
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(d) CONSENTS. Seller shall use its commercially reasonable
efforts to obtain all consents and approvals from lessors and other third
parties which are required or otherwise necessary in connection with the
consummation of the transactions contemplated by this Agreement.
(e) NOTICE OF LITIGATION. Seller will provide prompt written
notice to Buyer of any claim, suit, audit, litigation, or other proceeding or
investigation which arises or is threatened or in prospect after the date of
this Agreement and prior to the Closing, against or relating to the Business,
the Assets, or the transactions contemplated by this Agreement, setting forth in
such notice the facts and circumstances then currently available with respect
thereto.
(f) DISCLOSURE. Seller will promptly inform the Buyer in
writing of any matter which comes to its attention that would make any of the
Seller's representations or warranties made herein false or incorrect in any
material respect.
(g) INTENTIONALLY DELETED.
(h) CORPORATE SUPPORT. For a reasonable period following
Closing, Seller shall make available via telephone to Buyer such of its
corporate personnel who customarily worked in connection with the Business to
the extent reasonably required to effectively make a transition to Buyer. After
Closing, Acxiom shall designate an Acxiom associate to serve in this role.
(i) EXTENSION OF CREDIT. As long as Buyer is not in default
hereunder, within 90 days of Closing, Seller will use its commercially
reasonable efforts subject to consent of Seller's credit facilities to allow
Buyer to execute a note payable to Seller in the amount of $500,000 with a term
of three (3) years from the date of Closing, bearing interest at the rate of
eight percent (8%) per annum. The specific terms and conditions and security
therefore are to be mutually agreed upon at the time of execution of the note
payable.
(10) DATA PRICING. Seller shall make Seller's data
available to Buyer consistent with the historical pricing methodology currently
being charged until such time as Buyer and Seller shall execute a data reseller
agreement, but in no event extending more than one year from Closing.
12. CLOSING.
(a) TIME AND PLACE. The closing of the transactions
contemplated by this Agreement (the "Closing") shall take place at the offices
of Buyer in Limerick, Pennsylvania, at 10:00 a.m. on April 1, 2000, or at such
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other time and place mutually acceptable to the parties. The parties shall
immediately exchange their executed documents via facsimile. The original
documents thereafter will be exchanged by overnight delivery.
(b) DELIVERIES AT THE CLOSING BY THE SELLER. At the Closing,
the Seller shall deliver to the Buyer the following:
(i) A duly and properly executed Assignment and
Assumption of the Contracts, to be assigned hereby, in a form attached hereto as
Exhibit E;
(ii) A certificate of the Executive Committee of
Seller's Board to effect that (1) the representations and warranties of the
Seller contained herein were true and correct when made and are true and correct
at and as of the Closing Date in all material respects; and (2) Seller has
performed all obligations and complied with all covenants required by this
Agreement to be performed or complied with by Seller on or prior to the Closing
Date;
(iii) An opinion of Seller's counsel in the form
attached hereto is Exhibit F; and
(iv) Such other documents and instruments reasonably
necessary in order to consummate the transactions contemplated hereby upon the
terms contained herein.
(c) DELIVERIES BY THE BUYER. At the Closing, the Buyer shall
deliver to the Seller the
following:
(i) A stock certificate for fifteen hundred (1,500)
shares of Buyer's convertible Preferred Stock having a stated value of one
thousand dollars ($1,000) per share in a form substantially similar to that
attached hereto as Exhibit G;
(ii) A Warrant to purchase 247,934 shares of Buyer's
Common Stock in a form substantially similar to that attached hereto as Exhibit
G;
(iii) A duly and properly executed Assignment and
Assumption of Contracts, in the form attached hereto is Exhibit E;
(iv) A certificate of the President of Buyer to the
effect that (1) the representations and warranties of the Buyer contained herein
were true and correct when made and are true and correct at and as of the
Closing Date, and (2) Buyer has performed all obligations and complied with all
covenants or will comply with such covenants required by this Agreement to be
performed or complied with by Buyer on or prior to the Closing Date;
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(v) A duly and properly executed Stock Purchase
Agreement, Certificate of Designations, Registration Rights Agreement for the
Preferred Stock and Warrants, in the forms attached hereto as Exhibit H, and all
documents associated therewith; and
(vi) An opinion of Buyer's counsel in the form
attached hereto as Exhibit I, and the opinion of Buyer's counsel required by the
Stock Purchase Agreement in the form attached hereto as Exhibit J.
(d) DELIVERIES AFTER CLOSING. Within sixty (60) days after
Closing, Seller shall deliver:
(i) Audited financial statements substantially in the
form prescribed by the Securities and Exchange Commission in the letter to Buyer
dated March 3, 2000 and attached hereto as Exhibit C; provided however, if
Seller for any reason is unable to provide audited financial statements in the
form prescribed, then Buyer may select another national accounting firm to
undertake such audit, and Seller agrees to reimburse Buyer for the direct costs
of obtaining such audit.
(ii) Such other documents and instruments reasonably necessary
in order to consummate the transaction contemplated hereby upon the terms
contained herein and not having already been delivered.
13. CONDITIONS TO BUYER'S OBLIGATIONS. Unless waived by Buyer in
writing, the obligation of the Buyer to complete the Closing of transactions
contemplated by this Agreement is subject to the fulfillment and satisfaction,
as of the Closing, of each of the following conditions:
(a) REPRESENTATIONS, WARRANTIES AND COVENANTS. The
representations and warranties of the Seller contained in this Agreement shall
have been true and correct in all material respects when made and shall be true
and correct in all material respects at and as of the Closing Date as if made on
such date, and the Seller shall have performed all obligations and complied with
all covenants required by this Agreement to be performed or complied with by
Seller on or prior to the Closing Date.
(b) NO ADVERSE PROCEEDINGS. No suit, action or other
proceeding by a third party shall be pending or threatened against the Buyer, or
any of their respective officers, directors or affiliates which seeks to
restrain or prohibit any of the transactions contemplated by this Agreement or
to obtain damages or other adverse relief in connection with this Agreement or
the transactions contemplated hereby.
(c) NO ADVERSE INJUNCTIONS, ORDERS OR LAWS. No injunction or
order of any court or governmental agency, nor any statute, rule, regulation,
order or other law shall be in effect which restrains or otherwise prohibits the
consummation of the transactions contemplated hereby.
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(d) CONSENTS. All consents of all material third party
consents required or otherwise necessary in connection with the consummation of
the transactions contemplated herein shall have been received in a form and
substance reasonably acceptable to the Buyer.
(e) NO MATERIAL ADVERSE CHANGE. There shall have occurred no
material adverse change in the Assets or the financial condition, results of
operations, business or prospects of the Business, and no material part of the
Assets shall have been damaged or destroyed by any fire, storm, vandalism or
other casualty.
(f) NO OTHER MATERIAL ADVERSE FACT OR CONDITION. Buyer's due
diligence shall not have revealed any other material adverse fact, event or
condition relating to the Assets or the Business.
(g) AUDITED FINANCIAL STATEMENTS. Seller shall have agreed to
deliver to Buyer audited financial statements substantially in the form
prescribed by the Securities and Exchange Commission in the letter to Buyer
dated March 3, 2000 and attached hereto as Exhibit C.
14. CONDITIONS TO SELLER'S OBLIGATIONS. Unless waived by Seller in
writing, the obligation of Seller to complete the Closing of the transactions
contemplated by this Agreement is subject to the fulfillment and satisfaction as
of the Closing, of each of the following conditions:
(a) REPRESENTATIONS, WARRANTIES AND COVENANTS. The
representations and warranties of the Buyer contained in this Agreement shall
have been true and correct in all material respects when made and shall be true
and correct in all material respects as of the Closing Date as if made on such
date, and Buyer shall have performed all obligations and complied with all
covenants required by this Agreement to be performed or complied with by Buyer
on or prior to the Closing Date.
(b) NO ADVERSE PROCEEDINGS. No suit, action or other
proceeding by a third party shall be pending or threatened against the Seller or
any of its officers, directors or affiliates, which seeks to restrain or
prohibit any of the transactions contemplated by this Agreement or to obtain
damages or other adverse relief in connection with this Agreement or the
transactions contemplated hereby.
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(c) NO ADVERSE INJUNCTIONS, ORDERS OR LAWS. No injunction or
order of any court or governmental agency, nor any statute, rule, regulation,
order or other law shall be in effect which restrains or otherwise prohibits the
consummation of the transactions contemplated hereby.
15. INDEMNIFICATION.
(a) INDEMNIFICATION BY SELLER. Subject to the limitations set
forth herein, Seller hereby assumes liability for, and agrees to indemnify,
defend and hold Buyer harmless from and against any and all claims, actions,
suits, losses, damages, liabilities, obligations, response and remediation
costs, and all other costs and expenses (including, without limitation,
attorneys fees, court and litigation costs, and amounts paid in settlement and
judgments) (collectively the "Losses"), incurred by or asserted against Buyer
which arise out of, result from or otherwise relate to any breach by Seller of
any representation, warranty or covenant of Seller contained in this Agreement,
or in any other document, instrument or agreement executed between Seller and
Buyer pursuant to the terms of this Agreement;
(b) INDEMNIFICATION BY BUYER. Subject to the limitations set
forth herein, Buyer hereby assumes liability for, and agrees to indemnify,
defend and hold Seller harmless from and against any and all claims, actions,
suits, losses, damages, liabilities, obligations, response and remediation
costs, and all other costs and expenses (including, without limitation,
attorneys fees, court and litigation costs, and amounts paid in settlement and
judgments) (collectively the "Losses"), incurred by or asserted against Seller
which arise out of, result from or otherwise relate to any breach by Buyer of
any representation, warranty or covenant of Buyer contained in this Agreement,
or in any other document, instrument or agreement executed between Buyer to
Seller pursuant to the terms of this Agreement;
(c) NOTICE AND DEFENSE. The obligations and liabilities of the
Seller and the Buyer hereunder with respect to their respective indemnities
pursuant to this Section, resulting from any claim or other assertion of
liability by third parties (hereinafter, "Third Party Claims"), shall be subject
to the following terms and conditions:
(i) The party seeking indemnification hereunder (the
"Indemnified Party") shall give written notice of any such Third Party Claim to
the party from whom indemnification is sought hereunder (the "Indemnifying
Party") within a reasonable time after the Indemnified Party receives notice
thereof; provided however, the failure to give such notice timely shall not
affect the Indemnifying Party's obligations hereunder except to the extent that
such failure materially prejudices the Indemnifying Party's ability to defend
such Third Party Claim.
(ii) The Indemnifying Party shall have the right to
undertake, with counsel and other representatives of its own choosing and
reasonably acceptable to the Indemnified Party, the defense or settlement of any
such Third Party Claim. The Indemnified Party shall have the right in such
circumstances to participate in such defense with its own counsel at its own
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cost, but if the use of counsel by the Indemnifying Party to defend such claim
could reasonably be expected to give rise to a conflict of interest, the
employment of separate counsel by the Indemnified Party shall be at the expense
of the Indemnifying Party.
(iii) In the event that the Indemnifying Party shall
have the right to undertake the defense of any Third Party Claim, but shall fail
to notify the Indemnified Party within ten (10) days of receipt of the notice
that it has elected to undertake such defense or settlement, or if at any time
the Indemnifying Party shall otherwise fail to diligently defend or pursue
settlement of such claim, then the Indemnified Party shall have the right to
undertake the defense, compromise or settlement of such claim, with counsel
reasonably acceptable to the Indemnifying Party, and at the cost of the
Indemnifying Party.
(iv) Neither party shall compromise or settle any
Third Party Claim or consent to the entry of any judgment with respect to any
Third Party Claim, without the prior written consent of the other party, which
consent shall not be unreasonably withheld or delayed. Any such settlement shall
include as an unconditional term thereof a complete release of the Indemnified
Party and its officers, directors, employees, agents and affiliates from all
liability with respect to such claim. In the event the Indemnifying Party
submits to the Indemnified Party a bona fide settlement offer from the third
party claimant with respect to any Third Party Claim, and the Indemnified Party
refuses to consent to such settlement, then thereafter the Indemnifying Party's
liability with respect to such Third Party Claim shall not exceed the settlement
amount included in such settlement offer, and the Indemnified Party shall either
assume the defense of such Third Party Claim at the Indemnified Party's cost or
pay the Indemnifying Party's attorneys fees and out of pocket costs and expenses
incurred thereafter in continuing the defense of such claim. Regardless of which
party is conducting the defense of any such Third Party Claim, the other party,
with counsel or other representatives of its own choosing, shall have the right
to consult with the party conducting the defense of such claim and its counsel
or other representatives concerning such claim and the Indemnifying Party and
the Indemnified Party and their respective counsel or other representatives
shall cooperate with respect to such claim, and the party conducting the defense
of any such claim and its counsel shall in any case keep the other party and its
counsel (if any) fully informed as to the status of any claim and any matters
relating thereto. Each Party shall provide to the other party such records,
books, documents and other materials as shall reasonably be necessary for such
party to conduct or evaluate the defense of any Third Party Claim.
(d) Notwithstanding the foregoing, except with respect to (i)
matters constituting common law fraud or intentional or willful breach or
misrepresentation, (ii) the Receivable Adjustment which may be made after
Closing pursuant to Paragraph 3(e) and 3(f), and (iii) the Refund Adjustment
which may be made after Closing pursuant to Paragraph 6(c), each of which shall
be indemnified on a first dollar basis, neither party shall be required to
provide indemnification hereunder until the losses, other than the losses
specifically excluded on a first dollar basis, exceed twenty thousand dollars
($20,000) (the "Floor"); provided further, such indemnity obligation amount
shall not exceed four hundred seventy-five thousand dollars ($475,000) (the
"Ceiling"). Any indemnifiable claims that Buyer may have against the Seller may
be satisfied in cash or by transfer of Preferred Stock or Common Stock at a
value which is equal to the greater of the price set forth in Paragraph 3(a)
hereof or the then current price per share of the Buyer's Common Stock.
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(e) After the Closing, the rights set forth in this Section
regarding Indemnity shall be Buyer's and Seller's sole and exclusive remedy
against the other party (and any party claiming by or through Buyer or Seller)
hereto with respect to this Agreement and the transactions contemplated hereby
(whether or not consummated); provided however, this Section shall not restrict
or limit the ability of a party to seek injunctive or other like forms of
equitable relief to enforce, or prevent any threatened or prospective breach of,
the provisions hereof.
16. SURVIVAL. The representations and warranties of the Seller
contained in this Agreement and in any other document, instrument, certificate
or agreement delivered in connection herewith, shall survive the Closing for a
period of two (2) years, except with respect to (i) title to intellectual
property; (ii) matters constituting fraud or intentional or willful breach of
such representations and warranties shall survive until the expiration of the
applicable statute of limitations with respect thereto; and (iii) any matter or
covenant relating to the Preferred Stock, Common Stock or Warrants.
17. RISK OF LOSS. The risk of loss with respect to the Assets shall
remain with Seller until the Closing is completed and title to the Assets is
transferred from Seller to Buyer.
18. EXPENSES. Except as otherwise provided herein, the Seller on the
one hand, and the Buyer on the other, shall each pay their own respective
expenses relating to this transaction, including attorneys fees and
disbursements and fees and expenses of accountants, financial advisors and other
agents, whether or not the transactions hereunder are consummated.
19. PRESS RELEASES. The parties agree to cooperate with each other
regarding the timing and content of any press releases or other public
announcements regarding the transactions contemplated by this Agreement.
20. EMPLOYEES. Seller shall take such action as is reasonably necessary
to permit the employees employed in the Business to be available for hire by the
Buyer as of the Closing Date. Effective as of the Closing Date, Buyer shall have
the right to offer, but shall have no obligation to offer, employment to such
employees on such terms and conditions as Buyer determines in its sole and
absolute discretion. Seller shall reasonably cooperate with Buyer regarding any
offers of employment made by Buyer, but the decision as to hiring any particular
employee shall rest with Buyer in its sole and absolute discretion.
21. COBRA. Seller hereby assumes liability for and agrees to pay,
indemnify, defend and hold Buyer harmless from and against and with respect to
any and all losses, liabilities, claims, obligations, costs, damages, and
expenses that arise under the Consolidated Omnibus Budget Reconciliation Act of
1985 ("COBRA") and the Internal Revenue Code of 1986, as amended, imposed upon,
incurred or assessed by reason of or relating to any failure by Seller to comply
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with the continuation health care coverage requirements of COBRA or Sections 601
through 608 of ERISA which occur with respect to any current or prior employee
of Seller or any qualified beneficiary of such employee (as defined in COBRA).
Seller agrees to provide to all its employees terminated in connection with the
transaction described in this Agreement with all information that is necessary
or required under the continuation health care requirements of COBRA, as such
requirements have applied to any group health plan maintained by or for Seller,
with respect to any current or former employee of Seller or any spouse, former
spouse, dependent child or former dependent child of any such employee. Such
information shall include, without limitation, the identification of all covered
employees, as defined in COBRA, and their qualified beneficiaries, as defined in
COBRA, the identification of all qualifying events with respect to which such
covered employees are qualified beneficiaries, as defined in COBRA, and
information otherwise demonstrating compliance with all the continuation health
care coverage requirements of COBRA or in Sections 601-608 of ERISA.
22. MISCELLANEOUS.
(a) ASSIGNMENT. Neither this Agreement, nor any of the rights,
obligations and duties hereunder, may be assigned or otherwise transferred by
either party without the prior written consent of the other party.
(b) FURTHER ASSURANCES. The parties agree that from time to
time hereafter, upon request, each of them will execute, acknowledge and deliver
such other instruments and documents and take such further action as may be
reasonably necessary to carry out the intent of this Agreement.
(c) MODIFICATION. No provision contained herein may be
modified, amended or waived except by written agreement or consent signed by the
party to be bound thereby.
(d) BINDING EFFECT AND BENEFIT. This Agreement shall inure to
the benefit of, and shall be binding upon, the parties hereto, and their
respective successors and assigns. Otherwise, this Agreement is not intended to
create any rights for the benefit of any third party.
(e) HEADINGS AND CAPTIONS. Subject headings and captions are
included for convenience purposes only and shall not affect the interpretation
of this Agreement.
(f) NOTICE. All notices, requests, demands and other
communications permitted or required hereunder shall be in writing, and either
(i) delivered in person, (ii) sent by express mail or other overnight delivery
service providing receipt of delivery, (iii) mailed by certified or registered
mail, postage prepaid, return receipt requested or (iv) sent by facsimile
transmission as follows:
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If to the Seller, addressed or delivered in person to:
Acxiom Corporation
#1 Information Way
Little Rock, AR 72202
Attn: General Counsel
Telecopy No.: (501) 252-5610
With copy to:
Friday Eldredge & Clark
400 W. Capitol, Suite 2000
Little Rock, AR 72201
Attn: Carla G. Spainhour, Esq.
Telecopy No.: (501) 376-2147
If to Buyer, addressed or delivered in person to:
Sedona Corporation
649 North Lewis Rd.
Limerick, PA 19468
Attn: Marco Emrich, President & CEO
Telecopy No.: (610) 495-3092
With copy to:
Dale Goodfriend, Esq.
617 Southwest 9th Ave.
Rochester, MN 55902
Telecopy No.: (507) 252-2002
or to such other address as either party may designate by notice in the manner
provided above.
Any such notice or communication, if properly given or made by prepaid,
registered or certified mail or by recorded express delivery, shall be deemed to
have been made when actually received, but not later than three (3) business
days after the same was posted or given to such express delivery service, and if
made properly facsimile transmission such notice or communication shall be
deemed to have been made at the time of dispatch and receipt of proof of
transmission.
(g) SEVERABILITY. If any portion of this Agreement is held
invalid, illegal or unenforceable, such determination shall not impair the
enforceability of the remaining terms and provisions herein, provided the
purposes, intent and objects of this Agreement may be attained and achieved
through the enforcement of such remaining terms and provisions.
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(h) WAIVER. No waiver of a breach or violation of any
provision of this Agreement shall operate or be construed as a waiver of any
subsequent breach or limit or restrict any right or remedy otherwise available.
Any waiver must be in writing.
(i) RIGHTS AND REMEDIES CUMULATIVE. The rights and remedies
expressed herein are cumulative and not exclusive of any rights and remedies
otherwise available.
(j) GENDER AND PRONOUNS. Throughout this Agreement, the
masculine shall include the feminine and neuter and the singular shall include
the plural and vice versa as the context requires.
(k) ENTIRE AGREEMENT. This document and the Exhibits and
Schedules attached hereto constitute the entire agreement of the parties and
supersede any and all other prior agreements, oral or written, with respect to
the subject matter contained herein. There are no representations, warranties,
covenants or other agreements, oral or written, between the parties in
connection with this transaction, other that those expressly set forth in this
Agreement, the Exhibits and Schedules attached hereto.
(l) GOVERNING LAW. This Agreement shall be subject to and
governed by the laws of the State of Delaware.
(m) INCORPORATION BY REFERENCE. All exhibits and documents
referred to in this Agreement shall be deemed incorporated herein by any
reference thereto as if fully set out.
(n) COUNTERPARTS. This Agreement may be executed in two or
more counterparts each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(o) AUTHORITY. Each individual signing this Agreement in a
representative capacity acknowledges and represents that he/she is duly
authorized to execute this Agreement in such capacity in the name of, and on
behalf of, the designated corporation, partnership, trust, or other entity.
(p) RULES OF CONSTRUCTION. The terms "to the knowledge of the
Seller" or words to that effect are limited to the actual knowledge of the
following individuals Jeff Stalnaker, Greg Bjorndahl and Jim Henley. The term
"material" shall mean essential to the operation of the Business and exceeding a
cash expenditure in the amount of ten thousand dollars ($10,000.00).
(q) RESOLUTION OF DISPUTES. Any claim of whatever nature
including but not limited to the issue of dispute resolution arising out of or
relating to the Agreement shall be resolved pursuant to the dispute resolution
procedure as set forth below:
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(i) If any disputes are not resolved by informal
negotiations of the parties, then the parties agree to submit to non-binding
mediation in accordance with the Mediation Rules of the American Arbitration
Association (the "AAA"); and
(ii) In the event the parties are unable to resolve
issues by using mediation, then the parties shall have all rights available to
them at law or in equity.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the day and year aforesaid.
ACXIOM CORPORATION
/s/ JEFFERSON D. STALNAKER
-----------------------------------------------------
Jefferson D. Stalnaker, Finance and Accounting Leader,
Financial Services Division
SEDONA CORPORATION
/s/ MARCO EMRICH
--------------------------------------------------------
Marco Emrich, President & CEO
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