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
Date of Report (Date of earliest event reported): September 30, 1994
SAFEGUARD SCIENTIFICS, INC.
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(exact name of registrant as specified in its charter)
Pennsylvania 1-5620 23-1609753
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(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation) File Number) Identification No.)
435 Devon Park Drive Wayne, PA 19087
(Address of principal executive offices) (Zip code)
Registrant's telephone number, including area code: (610) 293-0600
Item 2.
Acquisition or Disposition of Assets
As of September 30, 1994, Premier Solutions Ltd.
("Premier"), a majority-owned subsidiary of the Registrant,
acquired the MAXIMIS software business unit ("MAXIMIS Business")
of Texas Instruments Incorporated ("TI") as more fully described
in the Asset Purchase Agreement ("Agreement") dated as of
September 30, 1994 ("Closing Date"). MAXIMIS is an investment
management information system used by leading insurance companies
and state pension funds for a wide range of asset management and
investment accounting applications.
Premier acquired all of TI's right, title and interest in
and to its MAXIMIS Product software and the predecessor IMIS
software. In addition, it acquired substantially all of the
assets related to the MAXIMIS Business from TI. As consideration
for the above, Premier assumed substantially all of the
liabilities related to the MAXIMIS Business and will pay
royalties to TI based on future sales of the MAXIMIS product.
Premier will pay a royalty equal to 50% of MAXIMIS product
revenues in excess of $3 million from the Closing Date through
December 31, 1995. From January 1, 1996 to December 31, 2002,
Premier will pay a royalty equal to 10% of MAXIMIS product
revenues.
As a condition of this transaction, TI paid $2 million at
closing to Premier as an operating subsidy for certain expenses
to be incurred by Premier following the acquisition.
In addition, Premier and TI have entered into a services
agreement, whereby TI will provide, at no cost to Premier, up to
$2.65 million of administrative data processing support services
from the Closing Date through December 31, 1995.
Item 7. Financial Statements and Exhibits
(a) Financial statements of business acquired
The inclusion in this report of the financial statements of
the MAXIMIS software business unit acquired from Texas
Instruments is impracticable. The Registrant will file such
financial statements under cover of a Form 8K/A as soon as
possible, but not later than 60 days after this report is
initially filed.
(b) Pro forma financial information
The inclusion in this report of the required pro forma
financial information is impracticable. The Registrant will file
such pro forma financial information under cover of a Form 8K/A
as soon as possible, but not later than 60 days after this report
is initially filed.
(c) Exhibits
2.1 Asset Purchase Agreement between Texas Instruments,
Incorporated and Premier Solutions Ltd. dated as of September 30,
1994. (excluding schedules & exhibits)
2.2 Services Agreement between Texas Instruments
Incorporated and Premier Solutions Ltd. dated as of September 30,
1994.
99.1 Press release issued by Premier Solutions Ltd. on
October 3, 1994.
SIGNATURE
Pursuant to the requirements of the Securities Exchange
Act of 1934, the registrant has duly caused this report to be
signed on its behalf by the undersigned thereunto duly
authorized.
Safeguard Scientifics,
Inc.
By: /s/ Gerald M.
Wilk
Gerald M. Wilk
Vice President
Finance
Date: October 17, 1994
EXHIBIT INDEX
Exhibit No. Description Page
2.1 Asset Purchase Agreement between Texas 6
Instruments, Incorporated and Premier
Solutions Ltd. dated as of September 30,
1994. (excluding schedules & exhibits)
2.2 Services Agreement between Texas 44
Instruments Incorporated and
Premier Solutions Ltd. dated as of
September 30, 1994.
99.1 Press release issued by Premier 50
Solutions Ltd. on October 3, 1994.
ASSET PURCHASE AGREEMENT
FOR THE MAXIMIS/IMIS BUSINESS
between
TEXAS INSTRUMENTS INCORPORATED
and
PREMIER SOLUTIONS LTD.
September 30, 1994
TABLE OF CONTENTS
ARTICLE I
THE SALE AND PURCHASE OF ASSETS
Page
1.01. Sale and Purchase of MAXIMIS/IMIS Assets 1
(a) Business SAL Assets 2
(a) Business SAL Assets 2
(b) MAXIMIS/IMIS Product Software 2
(c) Contracts . . 2
(d) Capital Assets 2
(e) Records 2
(f) Goodwill of Business 2
(g) Intellectual Property 2
(h) Accounts Receivable 3
(i) Other Assets 3
1.02. Excluded Assets 3
1.03. Purchase of Assets 4
1.04. Performance-Based Royalties 4
1.05. Assumption of Liabilities by Buyer 7
ARTICLE II
CLOSING
2.01. Closing 9
2.02. Deliveries at Closing 9
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
3.01. Existence and Authority of Seller 10
3.02. Financial Statements 11
3.03. Compliance with Laws 11
3.04. Compensation 12
3.05. Labor Relations 12
3.06. Employee Benefits 13
3.07. Consents and Approvals; Absence of Violations 13
3.08. Absence of Changes 14
3.09. Contracts 14
3.10. Ownership and Title to Tangible Assets
and Assets Listed on BSAL 15
3.11. Intellectual Property and Information 15
3.12. Litigation 15
3.13. Brokers 16
3.14. Conduct of Business and Compliance 16
3.15. Statements and Other Documents Not Misleading 16
3.16. Seller's Preparations Concerning Representations
and Warranties 17
3.17 Threshold for Claims of Breach 17
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
4.01. Existence and Authority of Buyer 17
4.02. Consents and Approvals; Absence of Violations 17
4.03. Brokers 18
4.04. Reliance 18
4.05 Buyer's Preparations Concerning Representations
and Warranties 19
4.06 Threshold for Claims of Breach 19
ARTICLE V
COVENANTS OF SELLER
5.01. Updates of Financial Statements 19
5.02. Personnel 19
5.03. Non-Competition 20
5.04. Buyer's IPO Audit Rights 20
5.05. Arrangement Concerning Temporary Occupancy 20
ARTICLE VI
COVENANTS OF BUYER
6.01. Personnel 21
6.02. Employee Benefit Plans 22
ARTICLE VII
ADDITIONAL COVENANTS
7.01. BSAL Adjustment Payment 23
7.02. Confidentiality 23
7.03 Accounts Receivable 25
ARTICLE VIII
INDEMNIFICATION
8.01. Indemnification by Seller 26
8.02. Indemnification by Buyer 26
8.03. Limitations on Indemnification 27
8.04 Notice and Defense Procedures 27
8.05 Insurance 29
8.06 Recourse to Remedies Under Agreement 29
ARTICLE IX
MISCELLANEOUS
9.01. Access to Information 29
9.02. Entire Agreement 30
9.03 Successors and Assigns 31
9.04 Counterparts 31
9.05 Headings 31
9.06 Notice 31
9.07 Choice of Law 32
9.08 Invalid Provisions 32
9.09 Expenses 33
9.10 Third Parties 33
9.11 Cooperation and Further Assurances 33
9.12 Publicity 33
9.13 Assignment 34
9.14 Survivability of Representations and
Warranties and Covenants 34
9.15 No Waiver 34
DISCLOSURE SCHEDULES
1.01 (a) BSAL
1.01 (c) Contracts
1.01 (d) Capital Assets
1.01 (g) Intellectual Property
1.01 (h) Accounts Receivable
1.01 (i) Other Assets
3.02 Financial Statements
3.03 (a) Compliance with Laws
3.04 Compensation
3.05 Labor Relations
3.07 Consents and Approvals
3.08 Absence of Changes
3.10 Title to Assets
3.11 (a) Third Party Intellectual Property
3.11 (b) Intellectual Property - Claims/Litigation
3.12 Litigation
3.14 Conduct of Business and Compliance
6.01 (e) Premier's Staff Selection Letter
EXHIBITS:
Exhibit A Bill of Sale
Exhibit B Assignment of Contracts
Exhibit C Services Agreement
Exhibit D IEF License and Commission Agreement
Exhibit E Assignment of Trademark (MAXIMIS)
Exhibit F Consent to Assignments of Allstate, Oracle and HP
Contracts
Exhibit G Temporary Occupancy Agreement
Exhibit H Assumption of Liabilities
Exhibit I Manulife Release
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT, dated as of September 30, 1994
(the "Agreement"), is entered into by and between TEXAS INSTRUMENTS
INCORPORATED, a Delaware corporation with its principal offices in
Dallas, Texas ("TI" or "Seller"), and Premier Solutions Ltd., a
Pennsylvania corporation with its principal offices in Malvern,
Pennsylvania ("Buyer").
WHEREAS, TI conducts a software services, development and
licensing business, focused on certain investment management information
system software ("IMIS") and the follow-on product of IMIS known as
"MAXIMIS" (such software collectively hereinafter the "MAXIMIS/IMIS
Products")(such business and services collectively hereinafter the
"Business"); and
WHEREAS, subject to the terms and conditions contained in this
Agreement, TI desires to sell, transfer, and assign to Buyer, and Buyer
desires to purchase and acquire from Seller, all of the Purchased Assets
and Assumed Liabilities (as such capitalized terms are defined herein)
relating exclusively to the Business, as more fully set forth herein; and
WHEREAS, it is the intent of Seller and Buyer that the Business
shall, effective as of the Closing Date (as defined herein), be conducted
by Buyer;
NOW, THEREFORE, in consideration of the premises and of the
mutual representations, warranties, promises and covenants herein
contained, and intending to be legally bound hereby, it is hereby agreed
by Seller and Buyer as follows:
ARTICLE I
THE SALE AND PURCHASE OF ASSETS
1.01. Sale and Purchase of Assets. Subject to the terms
and conditions of this Agreement, Seller shall sell, transfer, assign and
deliver to Buyer, and Buyer shall purchase and acquire from Seller, at
the Closing (as defined herein) the following assets and properties,
real, personal and mixed, of Seller, wherever located, which assets and
properties relate exclusively to the Business (collectively, the
"Purchased Assets"):
(a) Business SAL Assets. All assets reflected on
the Summary of Assets and Liabilities relating exclusively to the
Business, dated June 30, 1994, (the "BSAL") which is attached hereto and
made a part hereof as Schedule 1.01(a); and
(b) MAXIMIS/IMIS Product Software. All of Seller's
right, title and interest in and to the IMIS and MAXIMIS Product computer
software, including without limitation, all object code, source code and
related documentation, as currently developed and under development; and
(c) Contracts. To the extent assignable, all of
Seller's contracts, equipment leases and other agreements entered in
connection with the operation of the Business, identified on Schedule
1.01(c) (collectively, the "Assigned Contracts"); provided that Assigned
Contracts shall not include intracompany/intercompany accounts,
contracts, commitments, agreements or obligations within or between
Seller and its Affiliates (As used herein, "Affiliates" means any and all
entities in which Buyer or Seller, as applicable, directly or indirectly,
holds a controlling ownership interest.); and Assigned Contracts shall
not include any part or portion of any contract of Seller entered into in
connection with the Business prior to the Closing which relate to any TI
product (such as but not limited to the IEF products) other than the
MAXIMIS/IMIS Products; and
(d) Capital Assets. All capitalized equipment and
computer hardware and other tangible personal property identified in
Schedule 1.01(d); and
(e) Records. Originals or duplicate copies of all
customer lists and records, supplier lists and records, reports,
correspondence, sales and promotional literature (collectively, the
"Records"); and
(f) Goodwill of Business. All goodwill of the
Business as a going concern; and
(g) Intellectual Property. All of Seller's right,
title and interest in and to all of the following intangible assets of
Seller which relate exclusively to, or are used exclusively in connection
with, the Business, as may exist: All foreign and domestic patents,
patent applications, patent rights, copyrights, copyright applications,
inventions, discoveries, technology, know-how, trademarks, trademark
applications, service marks, trade names and logos, license rights,
algorithms, trade secrets, and claims of infringement against third
parties (collectively, the "Intellectual Property and Information")
including but not limited to the Intellectual Property and Information
more specifically identified in Schedule 1.01(g); and
(h) Accounts Receivable. All gross accounts
receivable of the Business as of June 30, 1994, as listed on Schedule
1.01(h), excluding, however, all accounts receivable owed from Affiliates
of Seller (collectively, the "Accounts Receivable"); and
(i) Other Assets. All other assets, if any, other
than Excluded Assets (as defined in Section 1.02), used by Seller
exclusively in developing, manufacturing, marketing, selling,
distributing and servicing the MAXIMIS/IMIS Products, as such other
Assets are listed on Schedule 1.01(i).
1.02. Excluded Assets. Notwithstanding anything to the
contrary, the Purchased Assets shall in no event include the following
(collectively, the "Excluded Assets"):
(a) any asset of Seller other than those relating
exclusively to the Business;
(b) any of Seller's products or product lines not
produced or developed exclusively for use in the Business;
(c) any license of TI software (excluding
MAXIMIS/IMIS Products) other than as provided in the IEF License and
Commission Agreement defined in Section 2.02 (iv);
(d) any leases for real or personal property shared
with other businesses or operations of Seller;
(e) the words and name "Texas Instruments
Incorporated" and "TI", and Seller's monograms, logos, trademarks, trade
names, or any variations or combinations thereof, other than the
Intellectual Property and Information;
(f) any United States and foreign patents,
trademarks, service marks, trade names, copyrights, technology, know-how,
processes, trade secret rights, claims or interests to or in any of the
foregoing, other than the Intellectual Property and Information; and
(g) cash and cash equivalents, including marketable
securities (on hand or in bank accounts).
(h) real property leases relating to the Business.
1.03. Purchase of Assets. In consideration for the sale,
transfer, and assignment by Seller of the Purchased Assets and the
agreements of Seller contained herein and in the Collateral Agreements
(as defined in Section 2.02 hereof), Buyer shall pay royalties to Seller
in accordance with Section 1.04, and Buyer shall assume the Assumed
Liabilities in accordance with Section 1.05.
1.04. Performance-Based Royalties.
(a) In addition to any royalties that may become
payable under the Collateral Agreements, Buyer will pay Seller Royalties
equal to 50% of the Product Revenues in excess of an aggregate of
$3,000,000 collected during the Initial Royalty Period (as such
capitalized terms are defined in Section 1.04(c) below).
(b) Further in addition to royalties that may become
payable under the Collateral Agreements and under Section 1.04(a) hereof,
Buyer will pay Seller Royalties equal to 10% of all Product Revenues
collected during the Main Royalty Period (as such capitalized terms are
defined in Section 1.04(c) below).
(c) "Product Revenue" means all revenue (net of
discounts and taxes), whether directly or through third parties, of the
MAXIMIS/IMIS Products and all Derivative Products from the sale of (i)
licenses, and (ii) up to $150,000 of implementation service fees (i.e.,
installation and consulting service fees) per each license to customers.
Also, in the event that Buyer uses any Derivative Products for Buyer's
GLOBALPLUSr Software products, then "Product Revenue" shall include the
revenues derived therefrom up to but not exceeding the greater of (i)
Buyer's then current list price for the incorporated MAXIMIS/IMIS
Products or (ii) such price at closing.
"Initial Royalty Period" shall mean the period
beginning at Closing and ending on December 31, 1995.
"Main Royalty Period" shall mean the period
beginning on January 1, 1996 and ending on December 31, 2002.
"Royalty Period" shall mean the period beginning at Closing and ending on
December 31, 2002.
" Derivative Product" shall mean a product
prepared by Buyer or by a third party on behalf of Buyer which is based
upon, or uses a significant part of, the MAXIMIS/IMIS Products, or any
module or component thereof, such as a revision, enhancement,
modification, translation, abridgment, condensation, expansion or any
other form in which such MAXIMIS/IMIS Products, or module or component
thereof, may be recast, transformed or adapted.
"Royalties" shall mean all royalties payable
under this Section 1.04.
(d) Buyer, not later than thirty calendar days after
the last day of each fiscal quarter of Buyer during the Royalty Period,
shall pay Seller, by wire transfer of immediately available funds to such
account as Seller shall designate to Buyer in writing, an amount equal to
the aggregate Royalties owed to Seller as provided herein for the most
recent fiscal quarter.
(e) Buyer, not later than thirty calendar days
after the last day of each fiscal quarter of Buyer during the Royalty
Period, shall submit to Seller a written statement of (i) the actual
Product Revenue recognized for the most recent fiscal quarter, (ii) the
actual Product Revenue collected during the same most recent fiscal
quarter, and (iii) the actual Royalty payments made by Buyer to Seller
for such fiscal quarter. Seller shall have thirty calendar days after
receipt of the report concerning Buyer's final fiscal quarter for each
fiscal year to call for an audit as described in Section 1.04(g) below.
If Seller fails to call for such an audit within such thirty calendar day
period, or if Seller agrees in writing to Buyer's reconciliation, the
statements for the four fiscal quarters constituting such fiscal year
shall be final, binding and conclusive on, and unappealable by, Seller
and Buyer. Notwithstanding the foregoing, if any such audit results in a
finding that the Royalty Payment amount identified by Buyer deviates from
the amount required to be paid pursuant hereto by more than ten percent,
then Seller may audit or re-audit, as the case may be, the computations
relating to any preceding fiscal year(s) during the Royalty Period. Any
additional amounts determined to be payable by Buyer pursuant hereto
shall be paid by Buyer within fifteen calendar days after such
determination by wire transfer of immediately available funds to such
account as Seller shall designate to Buyer in writing. Seller agrees
that Buyer's written statements described herein contain confidential
information in connection with Buyer's business and that such statements
shall be subject to the confidentiality provisions set forth in Section
7.02 below.
(f) By December 31, 1994 Buyer shall meet with
Seller to seek approval of Buyer's tracking system for estimating and
computing royalty payments, which approval shall not be unreasonably
withheld.
(g) Seller shall have the right to audit all
computations relating to the determination of the amount of Royalties due
and payable to Seller pursuant to this Section 1.04, including without
limitation any reconciliation pursuant to Section 1.04(e) above. All
such computations shall be made in accordance with United States
generally accepted accounting principles, consistently applied ("GAAP").
Upon the reasonable request of Seller, and not more than once in any
calendar year, Buyer and Buyer's Affiliates shall permit access to their
books and records by Seller or an accounting firm selected by Seller, for
the sole purpose of verifying and reporting to Seller regarding the
calculation of the Royalties payable hereunder. If Seller or its
auditors determine that any Royalties are due from Buyer as a result of
the audit, then Seller shall notify Buyer in a written report of such
determination, including the amount of the underpayment and the basis of
Seller's (or its auditor's) calculations. If Buyer disagrees with the
results of the audit, Buyer shall notify Seller in writing within 15 days
after receipt of the written report, and Buyer and Seller will have up to
30 days thereafter within which to attempt in good faith to resolve the
disputed audit report. Failing such resolution, the audit report will be
immediately referred for binding resolution to a nationally-recognized
firm of certified public accountants mutually acceptable to Seller and
Buyer (the "Resolution Auditors") for review within 45 days thereafter.
The decision of the Resolution Auditors will be binding on the parties.
The fees of the Resolution Auditors shall be allocated between the
parties in the same proportion that the aggregate of the disputed items
submitted and unsuccessfully disputed by each (as determined by the
Resolution Auditors) bears to the aggregate of all disputed items
submitted. Information relating to sales prices, customers and other
confidential business information of Buyer provided by Buyer to the
Seller for audit purposes will be used solely for such purpose and shall
be subject to the confidentiality provisions set forth in Section 7.02.
Any audit shall be arranged by advance written notice and shall be
conducted during normal business hours. Each party shall bear its own
expenses in connection with such audits except as otherwise indicated
here.
(h) Buyer shall have no right to offset against the
Royalties it is obligated to pay pursuant to this Agreement any
liabilities or other obligations owed to it by Seller.
1.05. Assumption of Liabilities by Buyer.
(a) Buyer shall assume on the Closing Date, and
agrees to pay, perform, or otherwise discharge, as and when the same
shall become due and payable, and hold Seller harmless from, the Assumed
Liabilities. "Assumed Liabilities" means any debts, obligations, or
liabilities (whether known or unknown, direct or indirect, absolute or
contingent, matured or unmatured, or otherwise), whether the same
currently exist or come to exist in the future, of Seller to the extent
arising from or related to the operation of the Business or the use of
the Purchased Assets, including, without limitation, all obligations and
liabilities of Seller under the Assigned Contracts, any and all amounts
required to be paid in respect of sales or similar taxes that may be
required to be paid by Buyer or Seller as a result of the transaction
contemplated by this Agreement, the liabilities listed on the BSAL and
all obligations agreed to be performed or assumed by Buyer.
(b) Notwithstanding the foregoing, under this
Agreement, "Assumed Liabilities" shall exclude the following:
(i) all accounts payable of Seller relating to
the Business on or prior to the Closing Date,
(ii) liabilities retained by Seller concerning
employee benefits accrued prior to the Closing Date under Seller's
benefit plans, as referenced in Section 3.06 hereof,
(iii) all liabilities of every nature and kind
(whether known or unknown, direct or indirect, absolute or contingent,
matured or unmatured, or otherwise) to the extent they arise out of the
employment relationship between Seller and the MAXIMIS/IMIS Employees
(defined in Section 3.06) arising prior to the Closing, including but not
limited to any liabilities or claims based upon any law, statute,
contract, tort, common law or under any civil rights laws or employment
discrimination laws, such as Title VII of the Civil Rights Act of 1964,
as amended, the Employee Retirement Income Securities Act, the Federal
Age Discrimination in Employment Act, and the Federal Americans with
Disabilities Act, except to the extent that any such liabilities arise
out of the wrongful acts (or alleged wrongful acts) of Buyer;
(iv) all liabilities of every nature and kind
to the extent they arise out of the employment relationship between
Seller and the MAXIMIS/IMIS Employees who do not become employees of
Buyer, including but not limited to liabilities with respect to
contractual or legal obligations of Seller regarding its severance
packages and employment contracts with such employees, except to the
extent that any such liabilities arise out of the wrongful acts (or
alleged wrongful acts) of Buyer;
(v) all federal, state and local taxes,
including late payment penalties and interest, with respect to the
Business and the MAXIMIS/IMIS Employees prior to the Closing; and
(vi) any and all liabilities to the extent
arising out of Seller's businesses other than the Business.
The excluded liabilities listed in Section 1.05(b)(i) to 1.05(b)(vi) are
collectively referred to as the "Retained Liabilities"). Seller hereby
agrees that it shall remain liable for all Retained Liabilities and shall
pay or discharge, as and when the same become due and payable, and hold
Buyer harmless from, the Retained Liabilities.
ARTICLE II
CLOSING
2.01. Closing. The consummation of the transactions
contemplated hereby (the "Closing") shall take place at the offices of
Seller, 13500 North Central Expressway, Dallas, Texas 75243, at 7:00 p.m.
, or in another manner or place as mutually agreed upon, on September 30,
1994. The date on which the Closing occurs is referred to herein as the
"Closing Date."
2.02. Deliveries at Closing. At the Closing, and as a
condition of Closing:
(a) Seller has delivered to Buyer the items described in
clauses (i) through (ix) below:
(i) the Bill of Sale, executed by Seller, attached
hereto as Exhibit A ;
(ii) the Assignment of Contracts Agreement attached
hereto as Exhibit B, executed by Seller as assignor;
(iii)the Services Agreement, executed by Seller, with
respect to certain administrative data processing support services, and
the provision of certain office space and facilities services to Buyer,
attached hereto as Exhibit C;
(iv) the IEF License and Commission Agreement,
executed by Seller, attached hereto as Exhibit D;
(v) the Assignment of Trademark to Buyer in
recordable form, of the MAXIMIS trademark, executed by Seller as
assignor, attached hereto as Exhibit E;
(vi) the Consent to Assignment of Contract by
Allstate Insurance Company ("Allstate"), Oracle Corporation ("Oracle"),
and Hewlett-Packard Company ("HP") , executed by each of Allstate, Oracle
and HP and Seller, attached hereto as Exhibit F;
(vii) the Temporary Occupancy Agreement, executed by
Seller, attached hereto as Exhibit G;
(viii) evidence that the party signing on behalf of
Seller is authorized to do so, and;
(ix) by certified check or by wire transfer to Buyer,
(A) cash in the non-refundable, unencumbered (without any note or
equitable conversion rights) amount of $2,000,000; and (B) $375,000, in
consideration of the settlement of claims, etc. of The Manufacturers Life
Insurance Company ("Manulife") against Seller and/or Business.
(b) Buyer has delivered to Seller the items described in
clauses (i) through (iii) below:
(i) the Assumption of Liabilities Agreement pursuant
to which Buyer assumes at Closing the Assumed Liabilities, executed by
Buyer, attached hereto as Exhibit H;
(ii) Exhibits B, C, D, E, and G, executed by Buyer;
(iii) evidence that the party signing this Agreement
on behalf of Buyer is authorized to do so;
(iv) An unconditional release of all claims that
Manulife may have or assert against Seller, executed by an authorized
person at Manulife (the "Manulife Release) attached hereto as Exhibit I.
(c) Exhibits A through I shall constitute, collectively,
the "Collateral Agreements".
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Buyer as follows:
3.01. Existence and Authority of Seller. Seller is a
corporation validly existing and in good standing under the laws of the
State of Delaware and has full corporate power and authority to enter
into this Agreement and the Collateral Agreements, and to perform its
obligations hereunder and thereunder. The execution, delivery and
performance of this Agreement and the Collateral Agreements by Seller
have been duly and validly authorized by all necessary corporate
proceedings on the part of Seller. This Agreement and the Collateral
Agreements constitute the legal, valid and binding obligations of Seller,
enforceable against it in accordance with their respective terms.
3.02. Financial Statements.
(a) Attached as Schedule 3.02 is a copy of unaudited
statements of income of the Business for the year ended December 31, 1993
and for the six months ended June 30, 1994 (collectively, the "Operating
Statements") and the BSAL. The Operating Statements and the BSAL
(together constituting the "Financial Statements"), include only those
amounts relating exclusively to the Business. The Financial Statements
do not include certain revenues, costs, expenses and liabilities relating
indirectly to the Business such as certain administrative expenses,
interest income and expenses, and federal and state income taxes, which
have not been allocated, charged or assigned by TI to the Business.
Except as set forth in the immediately preceding sentence, the Financial
Statements (i) present fairly the financial position and results of
operations of the Business as of and for the dates and periods presented,
and (ii) have been prepared on a consistent basis and in accordance with
the books and records of Seller.
(b) Except as set forth in Schedule 3.02, the Seller
has no debts, obligations, or liabilities of whatever kind or nature
(either direct or indirect, absolute or contingent, matured or unmatured,
or otherwise) required to be quantified in or otherwise disclosed in a
balance sheet (including the footnotes thereto) of the Business prepared
in accordance with generally accepted accounting principles as applied by
the Seller, except (i) debts, obligations, and liabilities that are fully
reflected or quantified in, or reserved against on, the BSAL, or (ii)
debts, obligations, and liabilities incurred in the ordinary course of
business after the date of the BSAL and consistent with past practice.
3.03. Compliance with Laws.
(a) Except as set forth on Schedule 3.03(a), Seller,
with respect to the Business, is not (i) subject to the terms or
provisions of any judgment, decree, order, writ or injunction, or (ii) to
Seller's knowledge, in violation of any terms or provisions of any
statute, law, rule, ordinance, or regulation (collectively, "Laws") of
any state, commonwealth, nation, territory, possession, county, parish,
municipality, or other political subdivision or of any department,
commission, board, bureau, agency, court, tribunal, or other
instrumentality of the foregoing, including, but not limited to Laws
pertaining to the environment, anti-competitive practices,
discrimination, employment and health and safety.
(b) Seller possesses all licenses, franchises,
permits, and other governmental authorizations (collectively,
"Authorizations") which are necessary to the conduct of the Business in
the manner in which, and in the jurisdictions and places where, Seller
conducts the Business. To Seller's knowledge, Seller is in compliance
with all limitations, restrictions, conditions, standards, prohibitions,
requirements, obligations, schedules, and timetables contained in the
Authorizations.
3.04. Compensation. Schedule 3.04 hereto sets forth the
name and position of each person employed by Seller as of the date hereof
in the Business, the current wage or salary and incentive awards for each
person and the amount of vacation accrued but not taken for each person.
Schedule 3.04 also sets forth (i) a list of all written employment
agreements between Seller and the employees of the Business, and,
separately, summarizes the "time-based Bonus" and "Earning Protection"
compensation packages with respect to Jim Smith, Rick Bodson and Bob
Nicholson, and (ii) a list of all written consulting agreements relating
to the Business. Since June 30, 1994, except as referenced on Schedule
3.04, Seller has not (i) granted or become obligated to grant any
increases in compensation of, (ii) paid or become obligated to pay any
bonus to, (iii) made or become obligated to make any similar payment to,
or (iv) granted or become obligated to grant any additional benefit to
any person employed in the Business.
3.05. Labor Relations. Except as disclosed on Schedule
3.05, there are no labor controversies, disputes, strikes, lock-outs,
work slow-downs, or work stoppages pending or, to Seller's knowledge,
threatened between Seller and any of the MAXIMIS/IMIS Employees (as
defined in Section 3.06 below). No labor union or other representative
has been designated or selected as the representative of the MAXIMIS/IMIS
Employees of Seller who work in the Business in accordance with the
National Labor Relations Act or other applicable Law, no collective
bargaining agreement is in effect or is currently being negotiated with
respect to the Business and, to Seller's knowledge, no union organizing
activities are currently taking place with respect to the Business.
3.06. Employee Benefits. Except for liabilities for
benefits, bonuses, costs or expenses agreed to be assumed or provided by
Buyer herein with respect to those employees of Seller employed in the
Business as of the Closing Date (the "MAXIMIS/IMIS Employees") who agree
at Buyer's request to become employees of Buyer, Buyer will have no
liabilities for benefits, costs or expenses accrued prior to the Closing
Date under Seller's welfare, pension, deferred compensation, bonus, stock
option, employee stock purchase, or other employee benefit plans,
policies or procedures or any written or oral representations made by
Seller promising or guaranteeing the continuation of employee benefits.
3.07. Consents and Approvals; Absence of Violations.
(a) Except as disclosed in Schedule 3.07, no
notification, authorization, consent or approval of, or notice to, any
governmental or regulatory authority or other third party is required to
be obtained or given or waiting period required to expire as a condition
to Seller's execution of this Agreement and the performance of its
obligations hereunder.
(b) Except as disclosed on Schedule 3.07, neither
Seller's execution and delivery of this Agreement or of the Collateral
Agreements, nor Seller's performance of its obligations hereunder or
thereunder, (i) will, to Seller's knowledge, violate any provision of, or
result in the acceleration of, or entitle any party to accelerate
(whether after the filing of notice or lapse of time or both), any
obligation under, or permit any person to terminate, modify or cancel the
rights of Seller or result in the creation or imposition of any lien,
charge, pledge, security interest or other encumbrance upon any Purchased
Assets under any provision of any mortgage, lien, agreement, license or
other obligation to which Seller is a party, or by which Seller is bound,
or to which Seller's assets are subject, which in any such case would
have an adverse effect on the business, operations, or financial
condition of the Business taken as a whole, (ii) will violate any
provision of the certificate of incorporation or by-laws of Seller, or
(iii) will violate any provisions of laws or any judgment, order, or
decree of any court or governmental agency to which Seller is subject.
3.08. Absence of Changes. Except as disclosed in
Schedule 3.08, since June 30, 1994, there has not been:
(a) any adverse change in the Business taken
as a whole or in the Purchased Assets as a whole;
(b) any sale, lease, transfer, pledge,
encumbrance, or assignment of any Purchased Assets, tangible or
intangible, or any damage, destruction or loss, whether or not covered by
insurance, or any other event or condition which has had or would have an
adverse affect on the Business taken as a whole or any of the Purchased
Assets as a whole; or
(c) any entry into any agreement, commitment or
transaction by Seller with respect to the Business
except agreements, commitments or transactions disclosed to Buyer and
entered into in the ordinary course of business or as contemplated
herein; or
(d) any change in the insurance customarily
maintained by Seller for the Business;
3.09. Contracts. Schedule 1.01(c) includes each material
written agreement, arrangement, commitment or other instrument relating
exclusively to the Business to which Seller is a party or by which Seller
or the Purchased Assets may be bound or affected, and as listed and
described in Schedule 1.01(c), to Seller's knowledge, there are no other
material written or oral agreements, arrangements, or commitments
relating exclusively to the Business and the Purchased Assets. Each of
such agreements, arrangements, commitments, and other instruments is
valid, legal, binding on the respective parties thereto; and, except as
set forth in Schedule 1.01(c), no defenses, offsets, or counterclaims
thereto have been asserted, nor has Seller waived any substantial rights
thereunder. Each of the Assigned Contracts with a customer of the
Business which is designated by Seller as "inactive" on Schedule 1.01(c)
is either inactive or has been terminated, and to Seller's knowledge,
there are no maintenance, support or further licensing obligations with
respect thereto.
3.10. Ownership and Title to Tangible Assets and Assets
Listed on BSAL. Except as set forth on Schedule 3.10, Seller has, and
shall convey to Buyer at Closing, good and marketable title to, and sole
and exclusive ownership interest in, the assets listed on the BSAL,
computer hardware and other tangible personal property currently used
exclusively for the Business and the other tangible Purchased Assets as a
whole, free and clear of all liens, pledges, mortgages, charges, options
or other rights to acquire the same, security interest, adverse claims,
or other encumbrances of a similar nature.
3.11. Intellectual Property and Information. Schedule
3.11(a) contains a list of all material agreements relating to
technology, know-how, processes, trade secret rights, or other
proprietary rights which the Seller is licensed or authorized to use by
others and which are used exclusively in the Business. To Seller's
knowledge, all of the licenses and other agreements referred to on such
Schedule are in full force and effect; to Seller's knowledge, there have
not been, and there currently are not, any material defaults thereunder
by any party, and no event has occurred which (whether with or without
notice, lapse of time, or the happening or occurrence of any other event)
would constitute a material default thereunder; and except as disclosed
on such Schedule hereto, to Seller's knowledge, the validity,
continuation, and effectiveness of all such licenses and other agreements
and the current terms thereof will in no way be affected by the
transactions contemplated by this Agreement.
With respect to all of the Intellectual Property and Information, except
as disclosed on Schedule 3.11(b), no litigation has been commenced and
Seller has not received notice of any threatened claims or litigation by
any person contesting the right of Seller to use, or the validity of the
Intellectual Property and Information, or challenging or questioning the
validity or effectiveness of any license or agreement pertaining thereto
or asserting the misuse thereof. To Seller's knowledge, use of the
Intellectual Property and Information by Seller does not infringe on the
rights of any person or violate any license or other agreement applicable
thereto.
3.12. Litigation. Except as listed on Schedule 3.12, there
are no claims, actions, suits, proceedings or investigations pending or,
to Seller's knowledge, threatened, of or before any court, arbitrator or
governmental authority, against or involving the Business or the
Purchased Assets, or challenging the transactions contemplated by this
Agreement or the Collateral Agreements, and Seller knows of no basis for
any such litigation, arbitration, investigation or proceeding. Seller is
not a party to or subject to the provisions of any judgement, order,
writ, injunction, decree or award of any court, arbitrator or
governmental or regulatory official, body or authority which affects the
Business or the Purchased Assets or their operation.
3.13. Brokers. Buyer shall not be responsible, directly or
indirectly, for the payment, if any, of any broker's, finder's, or
similar fee or other commission in connection with this Agreement or the
transactions contemplated hereby, based on any understanding with Seller
or any action taken by Seller.
3.14. Conduct of Business and Compliance.
Since August 30, 1994, Seller has:
(a) conducted the Business in the ordinary course,
consistent generally with its past practice as described by Seller to
Buyer;
(b) except as otherwise noted in Schedule 3.14(b), not
made any capital expenditures or incurred any obligations or
liabilities, absolute or contingent, with respect to the Business and the
Purchased Assets except with Buyer's prior consent.
(c) maintained the salary levels of all MAXIMIS/IMIS
Employees as such existed on August 30, 1994.
3.15. Statements and Other Documents Not Misleading.
Neither this Agreement, including all Schedules, nor any other financial
statement, document or other instrument furnished by Seller to Buyer
prior to or at the Closing in connection with the transactions
contemplated hereby contains any untrue statement of any material fact or
omits any material fact required to be stated in order to make such
statement, document or other instrument in the circumstances in which
they are made, not misleading. There is no fact known to Seller which
may materially adversely affect the assets, liabilities, business,
operations or conditions (financial or otherwise) of the Business or the
Purchased Assets which has not been set forth in this Agreement, the
schedules attached hereto or the other documents furnished to Buyer on or
prior to the date hereof in connection with the transactions contemplated
hereby.
3.16. Seller's Preparations Concerning Representations and
Warranties. Seller has exercised reasonable diligence in identifying
persons who could knowledgeably attest to the matters represented and
warranted herein, and in inquiring with such people as to such matters.
Representations and warranties made to Seller's knowledge, like those
made without this qualification, incorporate the results of such efforts.
Further, in the course of its investigation, Seller has obtained no
knowledge of any facts that would make Buyer's representations and
warranties inaccurate or misleading.
3.17. Threshold for Claims of Breach. Notwithstanding
anything herein to the contrary, Seller shall only be considered to be in
breach of any of its representations and warranties hereunder, or subject
to the indemnification provisions of Section 8.01(a), to the extent that
the loss, liability, damage, costs and obligations actually incurred by
Buyer as a result of each occurrence exceeds $50,000.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Seller as follows:
4.01. Existence and Authority of Buyer. Buyer is a
corporation validly existing and in good standing under the laws of the
Commonwealth of Pennsylvania and has full corporate power and authority
to enter into this Agreement and the Collateral Agreements and to perform
its obligations hereunder and thereunder. The execution, delivery and
performance of this Agreement and the Collateral Agreements by Buyer have
been duly and validly authorized by all necessary corporate proceedings
on the part of Buyer. This Agreement and the Collateral Agreements
constitute the legal, valid, and binding obligations of Buyer,
enforceable against it in accordance with their respective terms.
4.02. Consents and Approvals; Absence of Violations.
(a) Except as disclosed in Schedule 4.02(a), no
notification, authorization, consent or approval of, or notice to, any
governmental or regulatory authority or other third party is required to
be obtained or given or waiting period required to expire as a condition
to Buyer's execution of this Agreement and the performance of its
obligations hereunder.
(b) Except as set forth in Schedule 4.02(b), Buyer's
execution and delivery of this Agreement and the Collateral Agreements,
and the performance of its obligations hereunder and thereunder, will not
(i) to Buyer's knowledge, violate any provision of, or result in the
acceleration of, or entitle any party to accelerate (whether after the
filing of notice or lapse of time or both), any obligation under, or
permit any person to terminate, modify or cancel the rights of Buyer
under, any provision of any mortgage, lien, agreement, license or other
obligation to which Buyer is a party, or by which Buyer is bound, or to
which Buyer's assets are subject, which in any such case would have an
adverse effect on the Buyer or its properties (ii) violate any provision
of the charter or by-laws of Buyer, or (iii) violate any provisions of
laws or any judgment, order, or decree of any court or governmental
agency to which Buyer is subject.
4.03. Brokers. No broker, finder, agent or similar
intermediary has acted for or on behalf of Buyer in connection with the
Agreement or the transactions contemplated hereby, and no broker, finder,
agent or similar intermediary is entitled to any broker's, finder's or
similar fee or other commission in connection herewith based on any
agreement or understanding with Buyer or any action taken by Buyer.
4.04. Reliance. Buyer has conducted an independent inquiry
of the Purchased Assets and of officers, employees and agents of Seller
concerning the Purchased Assets. Buyer has relied on the results of such
inquiry and the representations and warranties of Seller contained in
Article III, including the Schedules relating thereto. The
representations and warranties of Seller contained in Article III
constitute the sole and exclusive representations and warranties of
Seller to Buyer in connection with this Agreement and the transactions
contemplated hereby, and Buyer acknowledges that all other
representations and warranties are specifically disclaimed and may not be
relied upon or serve as a basis for a claim against Seller. THE SELLER
DISCLAIMS ALL WARRANTIES OTHER THAN THOSE EXPRESSLY CONTAINED IN THIS
AGREEMENT AS TO THE MAXIMIS/IMIS ASSETS, OR ANY OF THEM, EITHER EXPRESS
OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY
OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
4.05 Buyer's Preparations Concerning Representations and
Warranties. Buyer has exercised reasonable diligence in identifying
persons who could knowledgeably attest to the matters represented and
warranted herein, and in inquiring with such people as to such matters.
Representations and warranties made to Buyer's knowledge, like those made
without this qualification, incorporate the results of such efforts.
Further, in the course of its investigation, Buyer has obtained no
knowledge of any facts that would make Seller's representations and
warranties inaccurate or misleading.
4.06 Threshold for Claims of Breach. Notwithstanding anything
herein to the contrary, Buyer shall only be considered to be in breach of
any of its representations and warranties hereunder, or subject to the
indemnification provisions of Section 8.02(a), to the extent that the
loss, liability, damage, costs and obligations actually incurred by
Seller as a result of each occurrence exceeds $50,000.
ARTICLE V
COVENANTS OF SELLER
5.01. Updates of Financial Statements. Within fifteen
working days after the Closing, Seller will deliver to Buyer the
following items: (i) unaudited statements of income of the Business,
covering the period from June 30, 1994 to the Closing, and (ii) summary
of assets and liabilities relating exclusively to the Business, as of the
Closing.
5.02. Personnel.
(a) Seller shall provide severance benefits, if any,
as it considers appropriate, for MAXIMIS/IMIS Employees who reject
Buyer's employment offers, and to whom such offers are not required to be
extended pursuant to Section 6.01 (a).
(b) For a period of two years following the Closing,
Seller will not, without the prior written consent of Buyer, specifically
solicit, recruit, offer or accept for employment in any capacity, on a
full-time or part-time basis, or retain as a consultant, any MAXIMIS/IMIS
Employee who accepts employment with Buyer, unless such person is
involuntarily discharged by Buyer. This will not restrict Seller from
engaging in general recruiting activities.
5.03. Non-Competition. Seller will not market products in
competition with the MAXIMIS/IMIS Products directly or indirectly during
the Royalty Period. The foregoing shall not restrict Seller from (i)
selling IEF products or services regardless of their applications, or
(ii) working with and supporting providers of software services,
development and licensing who compete with the Business.
5.04. Buyer's IPO Rights. In the event the Buyer desires
to offer its equity securities for public sale, pursuant to an initial
public offering ("IPO") and must prepare and file a registration
statement on Form S-1 or another applicable form to register such
securities under the Securities Act of 1933, as amended, and the
prospectus included therein ("Registration Statement"), with the
Securities and Exchange Commission, and such Registration Statement must
contain financial and other business information regarding the Business
prior to the Closing, then TI agrees that upon written notice from Buyer
it shall provide reasonable access to such financial and other business
information, with respect to the Business prior to the Closing, to Buyer
and to an accounting firm retained by Buyer for that purpose. Further,
Seller agrees that it will retain such financial and other business
information with respect to the Business for a period of three (3) years
after the Closing. Buyer shall bear all costs of any such effort, and
shall hold Seller harmless from any claims or liability with respect to
the use of information provided by Seller under this Section 5.04.
5.05. Arrangement Concerning Temporary Occupancy. In the
event Seller chooses to terminate the license of Buyer under the
Temporary Occupancy Agreement before the Expiration Date (as defined
therein) for reasons other than force majeure or instigation by the
landlord, Seller will assist Buyer in locating and moving to comparable
office space until the Expiration Date, and will provide such alternate
space to Buyer free of charge.
ARTICLE VI
COVENANTS OF BUYER
6.01. Personnel.
(a) Buyer shall employ no fewer than 65% of the
MAXIMIS/IMIS Employees as of Closing.
(b) In the event that, within six months after the
Closing, (i) Buyer terminates a MAXIMIS/IMIS Employee without cause or
(ii) a MAXIMIS/IMIS Employee terminates his employment by Buyer for good
reason, then Buyer shall provide to such employee the following benefits
and shall hold harmless and indemnify Seller from any liabilities arising
from such termination: severance pay and other benefits in amounts not
less than would be provided under Sellers' plans and policies in effect
immediately prior to the Closing Date, or, if greater, in amounts
provided for under applicable law (including, without limitation, the
Worker Adjustment and Retraining Notification Act) or under employment
contracts in effect immediately prior to the Closing Date. For purposes
of this Agreement, (i) "cause" shall be deemed to be conduct by the
MAXIMIS/IMIS Employee constituting gross negligence, willful misconduct
or fraud, in the determination made in good faith by the Board of
Directors of Buyer; and (ii) "good reason" shall be deemed to be (A) the
proposed relocation of a MAXIMIS/IMIS Employee by Buyer to a Buyer
location at least thirty-five miles from the location of the Business at
which such employee is presently employed, for more than six months or
(B) any reason which, under applicable laws, existing employment
contracts or collective bargaining agreements would give the employee the
right to terminate his or her employment or to receive severance pay,
termination indemnities or other compensation. After such six month
period shall have elapsed, Buyer shall provide its normal severance
benefits for the MAXIMIS/IMIS Employees.
(c) Buyer will provide the "Time-based Bonus" and
"Earnings Protection" for employee Rick Bodson as referenced in Schedule
3.04 above.
(d) For a period of two years following the Closing,
Buyer will not, without the prior written consent of Seller, specifically
solicit, recruit, offer or accept for employment in any capacity, on a
full-time or part-time basis, or retain as a consultant, any other
employee of Seller other than a MAXIMIS/IMIS Employee, (including any
MAXIMIS/IMIS Employee who shall have been retained by TI after Closing)
unless such person is involuntarily discharged by Seller. This will not
restrict Buyer from engaging in general recruiting activities.
(e) Except as otherwise provided in Schedule
6.01(e), in the event Buyer, within six months after Closing, hires any
MAXIMIS/IMIS Employee whom Buyer had not sought to hire before Closing,
and to whom Seller shall have paid severance and/or related benefits,
Buyer shall pay Seller an amount equal to half of such severance and/or
related benefits.
6.02. Employee Benefit Plans. Buyer shall provide
MAXIMIS/IMIS Employees which it employs within three months after Closing
the normal benefits package it provides to its other employees. Buyer
shall investigate the implementation of a gain-sharing or accomplishment-
based merit bonus program for employees with maximum payout of
approximately 15% annualized pay, said program being implemented in part
to offset the loss of Seller's pension, profit sharing and 401K match
plans existing immediately before Closing. MAXIMIS/IMIS Employees shall
not be subject to pre-existing condition exclusions and shall be credited
with service credit for all purposes under such plans, including but not
limited to vacation and sick days, equal to the service credit they have
under TI benefit plans. Such Buyer Plans will meet all applicable
requirements of the Internal Revenue Code of 1986, as amended, the
Employee Retirement Income Security Act of 1974, as amended, state laws
and applicable laws of the jurisdiction where the plans are maintained.
Seller and Seller's pension, profit sharing, 401(k) and welfare plans and
other benefit plans and programs shall have no obligations to transfer
any assets representing accrued benefits or entitlements of such
MAXIMIS/IMIS Employees to any plans maintained or created by Buyer. Such
MAXIMIS/IMIS Employees shall be treated under all benefit plans and
programs of Seller as having terminated their employment with Seller and
its subsidiaries and affiliates as of date preceding the Closing Date
(except for such Employees who are, in accordance with Seller's normal
policies, eligible for a bridge to retirement, which Employees may be
placed on leave of absence) and all accrued benefits and entitlements of
such MAXIMIS/IMIS Employees under Seller's benefit plans and programs
shall be paid or otherwise discharged in accordance with the provisions
of the plans, subject to applicable law.
ARTICLE VII
ADDITIONAL COVENANTS
7.01. BSAL Adjustment Payment. Within fifteen working days
after the Closing, Buyer will pay to Seller, or Seller to Buyer, as the
case may be, by certified check or by wire transfer, the BSAL Adjustment
Payment, as described below.
The gross Accounts Receivable balance as of June 30, 1994 minus
$292,000 (80% of The Manufacturer's Life Insurance Company gross accounts
receivable at June 30, 1994); minus the amount of Accounts Receivable
collected by Seller from June 30, 1994 to Closing, if any, plus the
amount of gross Accounts Receivable increase from June 30, 1994 to
Closing, if any, equals Accounts Receivable Ending Adjusted Balance.
The BSAL Adjustment Payment shall be calculated as follows: The
Accounts Receivable Ending Adjusted Balance, minus the Accrued Contractor
Costs as of Closing; minus US $387,000 (the 6/30/94 Accounts Receivable
Balance (US $447K) minus the 6/30/94 Accrued Contractor Costs balance (US
$60K)). If the BSAL Adjustment Payment is positive, then the Buyer will
pay the Seller this amount. If the BSAL Adjustment Payment is negative,
the Seller will pay the Buyer the absolute value of this amount.
7.02. Confidentiality. The receiving party ("Recipient")
shall take reasonable steps not to disclose any Confidential Information
(as defined below) to any other party, or to use the Confidential
Information for any purpose other than fulfillment of the transactions
contemplated by this Agreement, for a period of five (5) years after
receipt of such Confidential Information. Recipient shall use the same
degree of care to avoid disclosure or use of the Confidential Information
as Recipient employs with respect to its own proprietary information of
like importance. Disclosure shall be limited to Recipient's employees,
officers, directors, agents, and authorized representatives including
accountants and attorneys, who have a "need to know" the Confidential
Information and have agreed with Recipient to protect the Confidential
Information in accordance with this Section 7.02. Confidential
Information shall include,but not be limited to, (i) items identified in
this Agreement and in the Collateral Agreements, as subject to
confidentiality, and (ii) information concerning the terms of the sale to
Buyer of the Business, the pricing and royalty arrangements contemplated
thereby and specific financial information referenced in Section 5.04,
except to the extent and only to the extent required in connection with
an IPO by Buyer as described in Section 5.04.
Information shall also be considered "Confidential Information" if it has
been marked as proprietary, or confidential or otherwise has been
explicitly designated as subject to the confidentiality requirements of
this Section 7.02. The specific Confidential Information shall be
subject to the requirements of this Section 7.02 for a period of five (5)
years after such specific Confidential Information shall have been
received by Recipient.
Information shall not be deemed Confidential Information, and Recipient
shall have no confidentiality obligation with respect to any information,
which Recipient can show:
(a) is previously known to Recipient without
obligation of confidence, or without breach of this Agreement;
(b) is publicly disclosed through no wrongful act of
Recipient;
(c) is received from a third party without
obligation of confidentiality and without breach of this Section;
(d) is independently developed by Recipient without
the use of such Confidential Information; or
(e) is required to be disclosed by the Recipient
pursuant to an order of any court or like entity, or in connection with
an IPO of Buyer; provided that the Recipient shall provide the disclosing
party ("Owner") with prompt notice of such request or order, including
copies of subpoenas or orders requesting such Confidential Information,
cooperate reasonably with the Owner in resisting the disclosure of such
Confidential Information via a protective order or other appropriate
legal action, and shall not make disclosure pursuant thereto until the
Owner has had a reasonable opportunity to resist such disclosure, unless
the Recipient is ordered otherwise.
(f) is approved for release by written authorization
of the Owner.
Nothing contained in this Section 7.02 shall be construed as granting or
conferring any rights by license or otherwise, expressly, impliedly, or
otherwise, for any product, invention, discovery, or improvement made,
conceived, or acquired prior to or after the date of this Agreement.
Owner understands that Recipient may currently or in the future be
developing information internally, or receiving information from other
parties, that may be similar to Owner's information. Accordingly,
nothing in this Agreement shall be construed as a representation or
inference that Recipient will not independently develop products, for
itself or for others, that compete with the products or systems
contemplated by Owner's information.
Recipient agrees that, in the event Owner is required to bring an action
to enforce the provisions of this Agreement, the damages to Owner for
improper disclosure of the Proprietary Information are irreparable, and
Owner is entitled to equitable relief, including an injunction and a
preliminary injunction, in addition to other relief.
7.03. Accounts Receivable. If, by December 31, 1994,
despite its exercise of reasonable and consistent good faith collection
efforts, Buyer fails to collect at least fifty percent of all accounts
receivable listed on Schedule 1.01(h) other than that relating to
Manulife (such percentages being the "Guaranteed Amounts"), then Buyer
shall have the option to so advise Seller. In such event, Buyer shall
provide Seller the opportunity for thirty days to verify the status of
such accounts receivable. Thereupon, Seller will pay to Buyer, in cash,
an amount equal to the difference between amounts theretofore collected
against such receivables, respectively, and the respective Guaranteed
Amounts. Buyer will remit to Seller any additional amounts it receives
in respect of such receivables to the extent such additional amounts,
together with amounts paid by Seller, exceed 100% of the respective
accounts receivable. No accounts receivable arising after June 30, 1994
shall be subject to this paragraph.
ARTICLE VIII
INDEMNIFICATION
8.01. Indemnification by Seller. Seller shall indemnify,
defend and hold harmless Buyer from and against:
(a) any and all losses, liabilities, damages, costs
and obligations (or actions or claims in respect thereof) with respect to
third parties which Buyer may suffer or incur, insofar as such losses,
liabilities, damages, costs, or obligations (or actions or claims in
respect thereof) are caused by the breach of any representation or
warranty of Seller set forth in this Agreement or in Collateral
Agreements;
(b) any and all losses, liabilities, damages, costs
and obligations (or actions or claims in respect thereof) which Buyer may
suffer or incur, insofar as such losses, liabilities, damages, costs, or
obligations (or actions or claims in respect thereof) are caused by the
breach of any covenant or agreement of Seller contained in this
Agreement, including the Collateral Agreements;
(c) any and all Retained Liabilities; and
(d) any and all legal fees, costs and other expenses
reasonably incurred by Buyer or any of its officers, directors, or
controlling persons in connection with investigating, defending, or
prosecuting any of the matters referred to in paragraph (a), (b), or (c)
above (or actions or claims in respect thereof) whether or not resulting
in any loss, liability, damage, cost, or obligation.
8.02. Indemnification by Buyer. Buyer shall indemnify,
defend and hold harmless Seller from and against:
(a) any and all losses, liabilities, damages, costs
and obligations (or actions or claims in respect thereof) which Seller
may suffer or incur, insofar as such losses, liabilities, damages, costs
or obligations (or actions or claims in respect thereof) are caused by
the breach of any representation or warranty of Buyer set forth in the
Agreement;
(b) any and all losses, liabilities, damages, costs
and obligations (or actions or claims in respect thereof) which Seller
may suffer or incur, insofar as such losses, liabilities, damages, costs,
or obligations (or actions or claims in respect thereof) are caused by
the breach of any covenant or agreement of Buyer contained in this
Agreement, including the Collateral Agreements;
(c) any and all losses, liabilities, damages, costs
and obligations (or actions or claims in respect thereof), with respect
to third parties, which Seller may suffer or incur, insofar as such
losses, liabilities, damages, costs, or obligations (or actions or claims
in respect thereof) are caused by the acts or omissions in Buyer's
conduct of the Business from and after the Closing Date;
(d) any and all Assumed Liabilities; and
(e) any and all legal fees, costs and other expenses
reasonably incurred by Seller or any of its officers, directors, or
controlling persons in connection with investigating, defending, or
prosecuting any of the matters referred to in paragraph (a), (b), (c), or
(d) above (or actions or claims in respect thereof) whether or not
resulting in any loss, liability, damage, cost, or obligation.
8.03 Limitations on Indemnification.
(a) The maximum aggregate amount of indemnification
which may be required of Seller under Section 8.01(a) or of Buyer under
Section 8.02(a) shall not exceed one million dollars.
(b) Except as otherwise provided in this Agreement,
the right to indemnification for a failure of a representation or
warranty sought under Sections 8.01(a) and 8.02(a) shall apply only to
those claims for indemnification notice of which is given to the
Indemnifying Party (as hereinafter defined) within one year of the
Closing Date.
8.04. Notice and Defense Procedures.
(a) Whenever any claim shall arise or any proceeding
shall be instituted involving any person in respect of which indemnity
may be sought pursuant to this Article VIII, such person (the
"Indemnified Party") shall promptly notify the person against whom such
indemnity may be sought (the "Indemnifying Party") thereof in writing,
including, when known, the facts constituting the basis for such claim or
proceeding and the amount or an estimate of the amount of the indemnified
liability arising therefrom. In addition, each party hereto hereby
agrees to provide to the other party written notification and copies of
communication from third parties received or made by such parties
relating to any matter subject to any indemnification hereunder. Except
as provided in Section 8.03(c), the failure by an Indemnified Party to
timely furnish to the Indemnifying Party any notice or copy required to
be furnished under this Section 8.04(a) shall not relieve the
Indemnifying Party from any responsibility for the matters relating to
such notice or copy, unless such failure adversely prejudices the ability
of the Indemnifying Party to defend such matter.
(b) In connection with any claim giving rise to
indemnity hereunder arising out of any claim or legal proceeding brought
by any person who is not an Indemnified Party, the Indemnifying Party at
its sole cost and expense may, upon written notice to the Indemnified
Party, elect to assume the defense of any such claim or legal proceeding.
If the Indemnifying Party has so elected to assume the defense of any
such claim or legal proceeding, such defense shall be conducted by
counsel chosen by the Indemnifying Party, provided that such counsel is
reasonably satisfactory to the Indemnified Party. The Indemnified Party
shall be entitled to participate in (but not control) the defense of any
such action, with its counsel and at its own expense. If the
Indemnifying Party has elected to assume the defense of any claim or
legal proceeding as provided herein, the Indemnified Party shall not be
entitled to indemnification as to fees and expenses of any counsel
retained by the Indemnified Party after the time at which the
Indemnifying Party has so elected. The Indemnified Party shall not
settle or compromise any indemnified liability without the prior written
consent of the Indemnifying Party, which shall not be unreasonably
withheld. In the event that the Indemnifying Party shall so assume such
defense, it shall not compromise or settle any such claim, action, or
suit unless (i) the Indemnified Party gives its prior written consent,
which shall not be unreasonably withheld, or (ii) the terms of the
compromise or settlement of such claim, action, or suit provide that the
Indemnified Party shall have no responsibility for the discharge of any
settlement amount and impose no other obligations or duties on the
Indemnified Party, and the compromise or settlement discharges all rights
against the Indemnified Party with respect to such claim, action, or
suit.
(c) If the Indemnifying Party does not assume
control of the defense of such claims as provided in the Section 8.04(b),
or if the Indemnifying Party's counsel for such defense is not reasonably
satisfactory to the Indemnified Party and the Indemnifying Party is
notified thereof, the Indemnified Party shall have the right to defend
such claim in any manner as it may deem appropriate at the cost and
expense of the Indemnifying Party, and the Indemnifying Party will
promptly reimburse the Indemnified Party in accordance with this Section
8.04. The reimbursement of fees, costs and expenses required by this
Article VIII shall be made by periodic payments during the course of the
investigation or defense, as and when bills are received or expenses
incurred.
8.05. Insurance. The amount of any liability for which an
Indemnified Party shall be entitled to indemnification shall be reduced
by the amount of insurance or other third party proceeds, if any,
actually received by the Indemnified Party in respect of such liability,
and such amount of insurance proceeds shall not be included in any
calculation of the maximum aggregate amount of indemnification as set
forth in Section 8.03(a).
8.06. Recourse to Remedies Under Agreement. Except for any
breach of the provisions of this Article VIII Seller and Buyer agree that
the rights and remedies of Seller and Buyer with respect to failures of
representations or warranties or breaches of covenants under this
Agreement are limited to those rights and remedies expressly provided in
this Article VIII; provided nothing herein shall prevent any party hereto
from seeking remedies of specific performance, injunctive relief or other
equitable remedies, if appropriate.
ARTICLE IX
MISCELLANEOUS
9.01. Access to Information.
(a) Upon reasonable notice stating any reasonable
purpose, including but not limited to obtaining information relevant to
tax returns, third party claims, litigation involving the requesting
party or as otherwise required for the conduct of Buyer's or Seller's
business, each party shall, but only to the extent necessary to satisfy
the requesting party's stated purpose, (i) give to the other and its
authorized representatives reasonable access, during regular business
hours, following the Closing, to any and all of the contracts, books,
records and data of or relating to the Business or the Purchased Assets,
and (ii) shall cause to be furnished promptly to the other party from
time to time all information in its possession relating to the Business
or the Purchased Assets as may be reasonably requested, all subject to
the prior receipt by the requested party of the required consents of
third parties (including employees with respect to personnel records), if
applicable, and further subject to the execution and delivery by the
requesting party and its representatives of confidentiality agreements.
(b) Buyer and Seller agree that they will keep the
records described in (a) for a period of three years after the Closing
Date, or for any longer period as may be required by any governmental
agency. In the event either Buyer or Seller wishes to destroy such
records after that time, it shall first give ninety days' prior written
notice to the other party and the other party shall have the right at its
option to take possession of such records provided that it does so no
later than sixty days after the end of such ninety-day period.
Notwithstanding the foregoing, Seller shall not be required to retain
copies of records it has provided to Buyer.
(c) Seller agrees that any information obtained by
it pursuant to paragraphs (a) and (b) of this Section 9.01 shall be held
in confidence, subject to the provisions of Section 7.02.
9.02. Entire Agreement, Schedules and Exhibits.
(a) Entire Agreement. This Agreement, including the
Collateral Agreements and the schedules and exhibits attached hereto,
contains the entire understanding of the parties relating to the subject
matter hereof. This Agreement supersedes all prior or contemporaneous
agreements and understandings relating to the subject matter hereof.
This Agreement may not be amended, modified, changed, released or
terminated in any manner except by an instrument in writing signed on
behalf of each of the parties hereto by their duly authorized officers or
representatives.
(b) Schedules and Exhibits. The schedules and
exhibits to this Agreement shall be construed with and as integral parts
of this Agreement to the same extent as if they were set forth verbatim
herein.
9.03. Successors and Assigns. This Agreement shall inure
to the benefit of and be binding upon the parties hereto and their
respective successors and permitted assigns.
9.04. Counterparts. This Agreement and the Exhibits hereto
may be executed in one or more counterparts for the convenience of the
parties hereto, all of which together shall constitute one and the same
instrument.
9.05. Headings. The headings of the articles and sections
of this Agreement are inserted for convenience only and shall not be
deemed to constitute part of this Agreement or to affect the construction
hereof.
9.06. Notice. Any notice, request, instruction, other
communications or other document to be given hereunder by any party
hereto to any other party shall be in writing and delivered personally,
telecopied during normal business hours or sent by recognized overnight
delivery service, and shall be deemed given when so delivered personally,
telecopied (with appropriate confirmation of receipt) or received, as
follows:
If to Buyer, to:
Premier Solutions Ltd.
333 Technology Drive
Malvern, Pennsylvania 19355
Attention: J.A. Mossman, President
Telecopier:(610) 251-6501
with a copy to:
General Counsel
Safeguard Scientifics, Inc.
800 The Safeguard Bldg.
435 Devon Park Drive
Wayne, PA 19087
Telecopier:(610) 293-0601
and if to Seller, to:
Texas Instruments Incorporated
Corporate Development
7839 Churchill Way
P.O. Box 650311, M/S 3995
Dallas, Texas 75265
Attention: Charles D. Tobin
Telecopier: (214) 917-3804
with copies to:
Texas Instruments Incorporated
Legal Department
P. O. Box 655474, M/S 241
Dallas, Texas 75265
Attention: Richard J. Agnich, Esq. and
Richard L. Thurston, Esq.
Telecopier: (214) 955-3511
or at such other address or addressee for a party as shall be specified
by like notice.
9.07. Choice of Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of Texas,
without regard to principles of conflicts of laws.
9.08. Invalid Provisions. If any provision of this
Agreement is held to be illegal, invalid or unenforceable under present
or future laws, 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 of this Agreement 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.
9.09. Expenses. Each of the parties hereto shall bear
its expenses separately incurred in connection with this Agreement and
with the performance of its obligations hereunder. Any sales, use or
transfer taxes or other taxes levied due or payable by reason of the sale
of the Purchased Assets contemplated hereby shall be paid by Buyer.
9.10. Third Parties. Except as specifically set forth
or referred to herein, nothing herein expressed or implied is intended or
shall be construed to confer upon or give to any person other than the
parties hereto and their respective successors or assigns, any rights or
remedies under or by reason of this Agreement.
9.11. Cooperation and Further Assurances. Subject to
the terms and conditions herein provided, each of the parties hereto
shall use reasonable efforts to take, or cause to be taken, such action,
to execute and deliver, or cause to be executed and delivered, such
additional documents and instruments and to do, or cause to be done, all
things necessary, proper or advisable under the provisions of this
Agreement and under applicable law to consummate and make effective the
transactions contemplated by this Agreement. Notwithstanding the
foregoing, it is understood that to the extent technology, knowhow,
algorithms, trade secrets and information concerning claims of
infringement against third parties, may be knowledge in the minds of the
MAXIMIS/IMIS Employees. It is understood that Seller shall not be
required to take any additional steps to obtain access to or other rights
to any such knowhow, etc. that is or was in the possession of such
MAXIMIS/IMIS Employees.
9.12. Publicity. Any general notices, releases,
statements or communications to employees, suppliers, distributors or
customers of Seller or to the general public or the press relating to
this Agreement and the transactions contemplated hereby shall be made
only at such times and in such manner as may be mutually agreed upon by
Buyer and Seller; provided, however, that the parties hereto shall be
entitled to issue such press releases and to make such public statements
as are, in the opinion of its legal counsel, required by applicable law.
9.13. Assignment. Neither this Agreement nor any of
the parties' rights hereunder shall be assignable to any other person
without the prior written consent of the other party hereto which shall
not be unreasonably withheld. Any assignment in violation of this
Section 9.13 shall be null and void and of no force and effect. In no
event shall any assignment by Buyer or Seller modify or amend any of the
obligations of Buyer or Seller under any provision of this Agreement or
the Collateral Agreements, and any assignee of Buyer or Seller shall
agree in writing to perform the obligations of the assigning party as set
forth in this Agreement or the Collateral Agreements.
9.14. Survivability of Representations and Warranties
and Covenants. Subject to Section 8.03(b), the
representations and warranties and covenants contained in this Agreement
shall survive following the Closing Date.
9.15. No Waiver. The failure of a party to insist
upon strict adherence to any term of, or to enforce any of the provisions
of, this Agreement on any occasion shall not be considered or construed
to be a waiver of any such term or provision, nor deprive that party of
the right thereafter to enforce or to insist on adherence thereto. No
waiver of any breach of this Agreement shall be held to be a waiver of
any other subsequent breach.
IN WITNESS WHEREOF the parties hereto have executed this Agreement
as of the date first above written.
SELLER:
TEXAS INSTRUMENTS INCORPORATED
By:________________________________
Name: William F. Hayes
Title:Executive Vice President
BUYER:
PREMIER SOLUTIONS LTD.
By:_______________________________
Name:________________________
Title:_______________________
Exhibit C
Services Agreement
Services Agreement
This Services Agreement effective as of September 30, 1994 is made
by and between Texas Instruments Incorporated ("TI") with offices at
13500 North Central Expressway, Dallas, Texas 75265 and Premier
Solutions Ltd. ("Premier"), with offices at 333 Technology Drive,
Malvern, Pennsylvania 19355.
Background
A. Pursuant to an Asset Purchase Agreement, dated as of September
30, 1994 (the "APA"), TI has agreed to sell, and Premier has agreed to
purchase, certain of the assets of TI with respect to its MAXIMIS/IMIS
Products and the Business conducted in connection therewith, and Premier
has agreed to assume certain of the liabilities of TI in connection
therewith, on the terms and conditions more fully set forth in the APA.
B. TI and Premier agreed in Sections 2.02(a) and 2.02(b),
respectively, of the APA that at the Closing they would deliver to each
other this Services Agreement. The parties wish to provide by this
instrument for their respective rights and obligations concerning certain
office space and facilities services and certain administrative data
processing support services to be provided by TI to Premier after the
Closing, as more fully set forth hereinafter.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
promises and covenants contained herein, and intending to be legally
bound hereby, the parties hereto agree as follows:
1. Definitions. Definitions.
1.1 THE TERMS USED IN THIS AGREEMENT, BUT NOT DEFINED HEREIN,
SHALL HAVE THE MEANINGS GIVEN THEM IN THE APA.
1.2 For purposes of this Agreement, "Services" will mean,
collectively, the administrative data processing support services listed
in Attachment A hereto, which is incorporated hereinafter by reference
and made a part hereof, and the provision of office space and facilities
services (light, heat, air conditioning, cleaning, telephones, copiers,
fax machines and other normal office operating services), at the level
rendered by TI to the Business at the Closing Date.
2. Commitment to Provide Services.
2.1 TI will continue to provide Services to the Business after
its acquisition by Premier for the following periods, to the extent such
Services may be requested by Premier, at the TI-shared facilities
located in the cities of Eden Prairie, MN; Waltham, MA; Indianapolis, IN;
Irvine, CA; NYC-Lexington, NY; Plymouth Meeting, PA; Bellevue, WA; Plano
TX; and Austin, TX; and the leased facilities occupied solely by the
Business at St. Simons Island, GA; Stamford, CT; and Richmond, VA., all
subject to the terms of the Temporary Occupancy Agreement.
2.1.1 TI agrees to provide office space and facilities
services as described in Section 1.2 above from the Closing Date until
December 31, 1994, except for the facility located at Richmond, VA.,
which Premier must vacate by October 31, 1994.
2.1.2 TI agrees to provide the administrative data
processing support services as described in Attachment A from the Closing
Date until December 31, 1995.
3. Manner, Time and Place of Performance.
3.1 TI will provide the Services with the degree of care,
skill, and diligence with which it currently performs similar services
for itself or others. TI reserves the right to determine staffing and
scheduling of Services, and to engage contractors as needed. To the
extent possible, Premier will advise TI in advance of any changes to
required Services from those provided by TI to the Business at Closing.
All Services will be provided to Premier at the locations listed in
Section 2.1 above.
3.2 TI reserves the right to make changes in data processing
operating procedures, software, hardware and personnel. Premier will
deliver data for processing hereunder in the same form as data is now
delivered immediately prior to the Closing, unless Premier is notified by
TI of a change in procedure. TI will advise Premier of any such change
in procedure in the same manner and at the same time as TI informs its
internal users.
4. Charges.
4.1 Waiver of Charges. Except as provided in Section 4.2, TI
agrees to waive charges for Services provided to Premier during the
periods listed in Sections 2.1.1 and 2.1.2, as follows:
4.1.1 TI shall waive charges for the office space and
facilities services.
4.1.2 TI shall waive charges for administrative data
processing support services, up to the aggregate maximum amount of
$2,650,000. TI shall provide Premier with an invoice credited against
this waiver of charges on a monthly basis during the periods set forth in
Section 2.1.2.
4.1.3 For purposes of waiver and payment of charges
exceeding amounts waived hereunder, TI's normal internal charges shall be
applicable,
4.2 Reimbursement. Premier will pay, to the extent incurred
by TI, the following costs within thirty days of TI's itemized monthly
invoice therefor: (1) the cost to TI of providing customized forms and
other customized supplies to Premier; (2) additional out-of-pocket
expenses incurred by TI at Premier's request; (3) applicable sales, use
and excise taxes; and (4) any costs beyond those which TI has agreed to
waive under Section 4.1.
5. Compliance.
5.1 Premier agrees to comply with all TI policies and rules
regarding use of TI facilities, proprietary information, and computer
systems, including but not limited to those policies and rules concerning
security, safety and access to facilities and data, and all such policies
and rules shall be applied by TI, with respect to Premier's proprietary
information and trade secrets which TI or its employees, agents,
representatives and contractors has access as a result of TI providing
the Services as set forth herein. A copy of such written policies and
rules shall be provided by TI to Premier.
6. Limitation of Liability.
6.1 Neither party shall be liable to the other for consequen
tial or incidental damages with respect to the Services, and there are no
warranties of any kind, express or implied, by TI for Services except as
specifically set forth herein or in the APA.
7. Force Majeure.
If either party is rendered wholly or partially unable by Force
Majeure (as hereinafter defined) to carry out its obligations under this
Services Agreement, and if that party gives prompt written notice and
full particulars of such Force Majeure to the other party, the notifying
party shall be excused from performance of its obligations hereunder, to
the extent of such prevention, restriction or interference, during the
continuance of any inability so caused, but for no longer period. Such
cause shall be remedied by the notifying party as far as possible with
reasonable speed and effort, but neither party shall have any obligation
to settle a labor dispute. For the purposes of this Agreement, "Force
Majeure" shall mean Acts of God, industrial disputes, acts of public
enemies or terrorists, war, other military conflicts, blockades,
insurrections, riots, epidemics, quarantine restrictions, landslides,
lightning, earthquakes, fires, storms, floods, washouts, arrests, civil
disturbances, restraints by or actions of any governmental body,
(including export, trade or security restrictions on information,
material, personnel, equipment or otherwise), breakdowns of plant or
machinery, inability to obtain transport or supplies, and any other acts
or events whatsoever, whether or not similar to the foregoing, not within
the control of the party claiming excuse from performance, which by the
exercise of due diligence, care and reasonable effort said party shall
not have been able to overcome or avoid.
8. Miscellaneous.
8.1 The following provisions of Article IX of the APA shall be
incorporated herein by reference as though fully set forth herein:
Access to Information
Entire Agreement
Schedules and Exhibits
Successors and Assigns
Counterparts
Headings
Notice
Choice of Law
Invalid Provisions
Third Parties
Cooperation and Further Assurances
Publicity
Assignment
No Waiver
8.2 Confidentiality. Business information to which TI gains
access in the course of performing its obligations hereunder shall be
subject to the confidentiality provisions of APA Section 7.02.
IN WITNESS WHEREOF, the parties, have caused this Agreement to be
duly executed by their respective authorized representative as of the day
and year first above written.
TEXAS INSTRUMENTS INCORPORATED PREMIER SOLUTIONS LTD.
By:___________________________ By:__________________________
Title:________________________ Title:_______________________
Date:_________________________ Date:________________________
2 of 2
NEWS RELEASE
Premier Solutions Acquires
MAXIMIS Business Unit
FOR MORE INFORMATION CONTACT:
Douglas S. Clauson
Premier Solutions, Ltd.
(215) 251-6622
FOR IMMEDIATE RELEASE
MALVERN, PA, October 3, 1994--Premier Solutions Ltd. today
announced that it has signed a definitive agreement to acquire
the MAXIMIS software business unit of Texas Instruments. As a
result, MAXIMIS will now become a product line of Premier
Solutions.
G.R. (Rick) Bodson, currently manager of product development and
support for MAXIMIS, will serve as general manager of the new
product line. Bodson will report directly to Jay Mossman,
president and chief executive officer of Premier Solutions.
Premier will maintain MAXIMIS as a standalone operation based in
Texas.
"The addition of MAXIMIS enables Premier to diversify into new
vertical markets of the financial industry, while still retaining
clear focus on providing asset management software solutions,"
said Mossman. "The strength of MAXIMIS' technology and its blue
chip customer base, which includes firms such as Aetna, ITT
Hartford, Allstate and the State Teachers Retirement System of
Ohio, combines with Premier's experience in the asset management
software and service business, to firmly position our company to
capitalize on the strong opportunities in these new markets."
"We are very excited about being part of the Premier Solutions
team," commented Bodson. "The combination of MAXIMIS' powerful
technology with Premier's proven track record in developing,
marketing and servicing asset management software provides the
focus and resources to further build on the success of MAXIMIS in
the marketplace."
MAXIMIS is used by leading insurance companies and state pension
funds for a wide range of asset management and investment
accounting applications. Its comprehensive and innovative design
surpasses other systems to provide maximum functionality and data
accessibility for all investment disciplines, including:
portfolio analysis/investment management; trade processing;
cashflow processing; accounting; operations; and analysis and
inquiries. MAXIMIS has been developed using Texas Instruments'
Information Engineering Facility (IEF) software application
development tool. The IEF solution provides for platform
portability, enabling MAXIMIS to be run on multiple computer
platforms, including IBM/MVS running the DB2 relational database
and Hewlett Packard/Unix (HP/UX) running Oracle.
Premier Solutions Ltd. of Malvern, PA is an industry-leading
supplier of asset management solutions. The company's flagship
GLOBALPLUS product is the system of choice to meet the trust
accounting and securities processing needs of top financial
institutions in countries around the world, including the United
States, Canada, United Kingdom and Japan. Fifteen of the top 100
banks in the world use GLOBALPLUS as the technology platform for
managing their trust, global custody and private banking
businesses.
Premier is a Safeguard Scientifics, Inc. (NYSE:SFE) partnership
company. Safeguard is a unique partnership of entrepreneurial
companies focused on the information technology market. Other
Safeguard Scientifics partnership companies include Sanchez
Computer Associates, Cambridge Technology Partners and CompuCom.
NOTE: GLOBAL (bullet)PLUS is a registered trademark of
Premier Solutions Ltd.
All other products and product names mentioned are
trademarks of registered trademarks of their respective
companies.
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