UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the Quarterly Period Ended June 30, 1997
Commission file Number: 33-64732
SPSS Inc.
(Exact name of registrant as specified in its charter)
Delaware 36-2815480
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
444 N. Michigan Avenue, Chicago, Illinois 60611
(Address of principal executive offices and zip code)
Registrant's telephone number including area code: (312)329-2400
Indicate by check mark whether the registrant (1) has filed all reports
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to filing requirements
for the past 90 days. Yes X No
As of August 1, 1997, there were 7,765,933 shares of common stock
outstanding, par value $.01, of the registrant.
<PAGE>
SPSS Inc.
Form 10-Q
Quarter Ended June 30, 1997
INDEX
PART I - FINANCIAL INFORMATION PAGE
Item 1. Financial Statements
Independent Auditors' Review Report 3
Consolidated Balance Sheets
as of December 31, 1996 and
June 30, 1997 (unaudited) 4
Consolidated Statements of Income
for the three and six months ended June 30, 1996
(unaudited) and 1997 (unaudited) 5
Consolidated Statements of Cash Flows
for the six months ended June 30, 1996
(unaudited) and 1997 (unaudited) 6
Notes to Consolidated Financial Statements 7
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations 8
PART II - OTHER INFORMATION
Item 1. Legal Proceedings 13
Item 4. Submission of Matters to a Vote of
Security-Holders 13
Item 6. Exhibits and Reports on Form 8-K 14
<PAGE>
Item 1. FINANCIAL STATEMENTS
Independent Auditors' Review Report
The Board of Directors
SPSS Inc.:
We have reviewed the consolidated balance sheet of SPSS Inc. and subsidiaries as
of June 30, 1997, and the related consolidated statements of income for the
three-month and six-month periods ended June 30, 1996 and 1997 and cash flows
for the six-month periods ended June 30, 1996 and 1997. These consolidated
financial statements are the responsibility of SPSS Inc.'s management.
We conducted our review in accordance with standards established by the American
Institute of Certified Public Accountants. A review of interim financial
information consists principally of applying analytical procedures to financial
data and making inquiries of persons responsible for financial and accounting
matters. It is substantially less in scope than an audit conducted in accordance
with generally accepted auditing standards, the objective of which is the
expression of an opinion regarding the financial statements taken as a whole.
Accordingly, we do not express such an opinion.
Based on our review, we are not aware of any material modifications that should
be made to the consolidated financial statements referred to above, for them to
be in conformity with generally accepted accounting principles.
We have previously audited, in accordance with generally accepted auditing
standards, the consolidated balance sheet of SPSS Inc. and subsidiaries as of
December 31, 1996, and the related consolidated statements of income,
stockholders' equity, and cash flows for the year then ended (not presented
herein); and in our report dated February 19, 1997, we expressed an unqualified
opinion on those consolidated financial statements. In our opinion, the
information set forth in the accompanying consolidated balance sheet as of
December 31, 1996, is fairly stated, in all material respects, in relation to
the consolidated balance sheet from which it has been derived.
/s/ KPMG Peat Marwick LLP
Chicago, Illinois
July 29, 1997
<PAGE>
SPSS Inc. and Subsidiaries
CONSOLIDATED BALANCE SHEETS
(in thousands, except for share data)
<TABLE>
<CAPTION>
December 31, June 30,
1996 1997
----------------- -----------------
(unaudited)
CURRENT ASSETS:
<S> <C> <C>
Cash and cash equivalents $ 12,621 $ 7,698
Accounts receivable, net of allowances 17,746 20,429
Inventories 1,900 2,035
Prepaid income taxes - 1,824
Prepaid expenses and other current assets 1,500 1,519
----------------- -----------------
Total current assets 33,767 33,505
----------------- -----------------
EQUIPMENT AND LEASEHOLD IMPROVEMENTS,
at cost:
Furniture, fixtures and office equipment 3,979 4,326
Computer equipment and software 12,228 12,967
Leasehold improvements 1,593 1,968
----------------- -----------------
17,800 19,261
Less: Accumulated depreciation and amortization 12,261 13,145
----------------- -----------------
Net equipment and leasehold improvements 5,539 6,116
----------------- -----------------
Capitalized software development costs, net of
accumulated amortization 7,036 7,998
Goodwill, net of accumulated amortization 2,173 2,049
Deferred income tax assets 1,245 1,275
Other assets 2,275 2,234
----------------- -----------------
$ 52,035 $ 53,177
================= =================
CURRENT LIABILITIES:
Notes payable $ - $ 436
Accounts payable 3,783 4,811
Accrued royalties 520 475
Accrued rent 651 494
Other accrued liabilities 7,989 6,642
Income taxes and value added taxes payable 3,401 1,789
Customer advances 121 184
Deferred revenues 6,764 5,800
----------------- -----------------
Total current liabilities 23,229 20,631
----------------- -----------------
Deferred income taxes 2,245 2,245
Other noncurrent liabilities 34 -
STOCKHOLDERS' EQUITY:
Common stock, $.01 par value; 50,000,000 shares
authorized; 7,726,597 and 7,761,241 shares issued and
outstanding in 1996 and 1997, respectively 77 78
Additional paid-in-capital 41,374 41,863
Cumulative foreign currency translation adjustments (612) (1,515)
Accumulated deficit (14,312) (10,125)
----------------- -----------------
Total stockholders' equity 26,527 30,301
----------------- -----------------
$ 52,035 $ 53,177
================= =================
</TABLE>
See accompanying notes to consolidated financial statements.
<PAGE>
SPSS Inc. and Subsidiaries
CONSOLIDATED STATEMENTS OF INCOME
(in thousands, except for share data)
(unaudited)
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
June 30, June 30,
------------------------------- -------------------------------
1996 1997 1996 1997
--------------- -------------- --------------- --------------
Net revenues:
<S> <C> <C> <C> <C>
Desktop products $ 15,440 $ 18,516 $ 31,402 36,427
Large System products 2,612 2,087 5,467 4,441
Other products and services 1,828 1,968 3,130 3,897
--------------- -------------- --------------- --------------
Net revenues 19,880 22,571 39,999 44,765
Cost of revenues 2,066 2,354 4,073 4,607
--------------- -------------- --------------- --------------
Gross profit 17,814 20,217 35,926 40,158
--------------- -------------- --------------- --------------
Operating expenses:
Sales and marketing 10,138 11,855 20,731 22,712
Product development 3,277 3,497 6,310 7,196
General and administrative 1,744 1,392 3,435 3,141
Acquisition-related charges -- 1,065 -- 1,065
--------------- -------------- --------------- --------------
Operating expenses 15,159 17,809 30,476 34,114
Operating income 2,655 2,408 5,450 6,044
Other income (expense):
Net interest income 104 145 226 272
Other income (expense) (56) 6 (106) (16)
--------------- -------------- --------------- --------------
Other income (expense) 48 151 120 256
--------------- -------------- --------------- --------------
Income before income taxes 2,703 2,559 5,570 6,300
Income tax expense 930 878 1,930 2,113
--------------- -------------- --------------- --------------
Net income $ 1,773 $ 1,681 $ 3,640 4,187
=============== ============== =============== ==============
Net income per share $ 0.21 $ 0.20 $ 0.44 0.49
=============== ============== =============== ==============
Shares used in computing net income per share 8,360,688 8,610,733 8,315,295 8,609,242
=============== ============== =============== ==============
</TABLE>
See accompanying notes to consolidated financial statements.
<PAGE>
SPSS Inc. and Subsidiaries
CONSOLIDATED STATEMENTS OF CASH FLOWS
(in thousands)
(unaudited)
<TABLE>
<CAPTION>
Six Months Ended
June 30,
----------------------------
1996 1997
------------- -------------
Cash flows from operating activities:
<S> <C> <C>
Net income $ 3,640 $ 4,187
Adjustments to reconcile net income to net cash
provided by (used in) operating activities:
Depreciation and amortization 2,322 2,647
Stock option compensation expenses 25 -
Changes in assets and liabilities, net of effects of
acquisitions:
Deferred income taxes - (30)
Accounts receivable 488 (2,683)
Inventories 193 (78)
Prepaid income taxes - (1,824)
Accounts payable (123) 1,028
Accrued royalties (66) (45)
Accrued expenses (1,882) (1,504)
Accrued income taxes 726 (1,612)
Other (2,199) (1,901)
------------- -------------
Net cash provided by operating (used in) activities 3,124 (1,815)
------------- -------------
Cash flows from investing activities:
Capital expenditures, net (1,780) (1,461)
Capitalized software development costs (603) (1,639)
Net payments for acquisitions (244) (934)
------------- -------------
Net cash used in investing activities (2,627) (4,034)
------------- -------------
Cash flows from financing activities:
Net borrowings (repayments) on notes payable (75) 436
Net proceeds from issuance of common stock 120 190
Income tax benefit from stock option exercises 174 300
------------- -------------
Net cash provided by financing activities 219 926
------------- -------------
Net change in cash 716 (4,923)
Cash and cash equivalents at beginning of period 11,175 12,621
------------- -------------
Cash and cash equivalents at end of period $ 11,891 $ 7,698
============= =============
Supplemental disclosures of cash flow information:
Interest paid $ 20 $ 16
Income taxes paid 728 5,091
============= =============
</TABLE>
See accompanying notes to consolidated financial statements.
<PAGE>
SPSS Inc. and Subsidiaries
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Note 1 - Basis of Presentation
The accompanying unaudited interim consolidated financial statements
reflect all adjustments which, in the opinion of management, are necessary for a
fair presentation of the results of the interim periods presented. All such
adjustments are of a normal recurring nature.
These consolidated financial statements should be read in conjunction
with the Company's audited consolidated financial statements and notes thereto
for the year ended December 31, 1996, included in the Company's Annual Report on
Form 10-K filed with the Securities and Exchange Commission.
Note 2 - Net Income Per Share
Net income per common and common equivalent share has been computed
using the weighted average number of common and dilutive common equivalent
shares outstanding for each period (8,610,733 shares for the three months ended
June 30, 1997, 8,609,242 shares for the six months ended June 30, 1997, and
8,360,688 and 8,315,295 shares for the comparable periods in 1996). Common
equivalent shares consist of the shares issuable upon exercise of stock options
(using the treasury stock method).
<PAGE>
Item 2. Management's Discussion and Analysis of Financial Condition and Results
of Operations.
The following table sets forth the percentages that selected items in
the Consolidated Statements of Income bear to net revenues:
<TABLE>
<CAPTION>
Percentage of Net Revenues Percentage of Net Revenues
--------------------------------- -------------------------------
Three Months Ended Six Months Ended
June 30, June 30,
--------------------------------- -------------------------------
1996 1997 1996 1997
--------------- -------------- --------------- --------------
Statement of Income Data:
Net revenues:
<S> <C> <C> <C> <C>
Desktop products 78% 82% 78% 81%
Large System products 13% 9% 14% 10%
Other products and services 9% 9% 8% 9%
--------------- -------------- --------------- --------------
Net revenues 100% 100% 100% 100%
Cost of revenues 10% 10% 10% 10%
--------------- -------------- --------------- --------------
Gross profit 90% 90% 90% 90%
--------------- -------------- --------------- --------------
Operating expenses:
Sales and marketing 51% 53% 52% 51%
Product development 16% 15% 16% 16%
General and administrative 9% 6% 8% 7%
Acquisition-related charges -- 5% -- 2%
--------------- -------------- --------------- --------------
Operating expenses 76% 79% 76% 76%
Operating income 14% 11% 14% 14%
Other income (expense):
Net interest income -- -- -- --
Other -- -- -- --
--------------- -------------- --------------- --------------
Other income (expense) -- -- -- --
--------------- -------------- --------------- --------------
Income before income taxes 14% 11% 14% 14%
Income tax expense 5% 4% 5% 5%
--------------- -------------- --------------- --------------
Net income 9% 7% 9% 9%
=============== ============== =============== ==============
</TABLE>
<PAGE>
Comparison of Three Months Ended June 30, 1996 to Three Months Ended June 30,
1997.
Net Revenues. Net revenues were $19,880,000 and $22,571,000 for the three months
ended June 30, 1996 and 1997, respectively, an increase of 14%. This revenue
increase was influenced, in part by the acquisition of DeltaGraph software
("DeltaGraph"), a graphics product formerly marketed by DeltaPoint, Inc.,
effective May 1, 1997. Net of DeltaGraph revenue of approximately $470,000, the
Company's increase in sales was 11%. Revenues from products designed for desktop
computers ("Desktop products") increased by 20% over the corresponding period in
1996, and there was a 20% decrease in revenues from products designed for
mainframes, minicomputers, and UNIX workstations ("Large System products"). The
increase in revenues from Desktop products reflected a $2,035,000 increase in
new revenues from SPSS for Windows. In addition, revenues from annual license
renewals of Desktop products resulted in a net increase of $551,000, reflecting
a $458,000 increase in annual license renewals of SPSS for Windows. The decrease
in revenues from Large System products was primarily due to cancellations of
mainframe and UNIX licenses. Other products and services revenues increased by
8% due primarily to an increase of $235,000 in revenues from training and
consulting services. Revenues for the second quarter of 1997 were adversely
affected by changes in foreign currency exchange rates.
Cost of Revenues. Cost of revenues consists of costs of goods sold, amortization
of capitalized software development costs, and royalties paid to third parties.
Cost of revenues was $2,066,000 and $2,354,000 in the three months ended June
30, 1996 and 1997, respectively, an increase of 14%. Such costs increased due to
higher sales levels and higher amortization amounts of capitalized software and
product translations. As a percentage of net revenues, cost of revenues remained
constant at 10%.
Sales and Marketing. Sales and marketing expenses were $10,138,000 and
$11,855,000 in the three months ended June 30, 1996 and 1997, respectively, an
increase of 17%. This increase was due to the expansion of the domestic and
international sales and marketing organizations, increased costs for the Clear
Software, Inc. ("Clear") and Sigma-series (Jandel Corporation ("Jandel"))
product lines, and salary and commission increases. These increases were
partially offset by changes in foreign currency exchange rates. As a percentage
of net revenues, such expenses increased from 51% to 53%.
Product Development. Product development expenses were $3,277,000 and $3,497,000
(net of capitalized software development costs of $176,000 and $319,000) in the
three months ended June 30, 1996 and 1997, respectively, an increase of 7%. In
the corresponding periods in 1996 and 1997, the Company's expense for
amortization of capitalized software and product translations, included in cost
of revenues, was $356,000 and $424,000, respectively. The increase in product
development expenses was primarily due to salary and recruiting fee increases,
and other additions to the product development staff. As a percentage of net
revenues, product development expenses decreased from 16% to 15%.
<PAGE>
General and Administrative. General and administrative expenses were $1,744,000
and $1,392,000 in the three months ended June 30, 1996 and 1997, respectively,
an decrease of 20%. Such expenses decreased primarily due to the reduction of
administrative costs of acquired entities. As a percentage of net revenues,
general and administrative expenses decreased from 9% to 6%.
Acquisition-related Charges. Charges related to the acquisition of DeltaGraph
software from DeltaPoint, Inc. in the three months ended June 30, 1997 totaled
$1,065,000 and represented one-time write-offs of in-process technology and
other acquisition-related charges.
Net Interest Income. Net interest income was $104,000 and $145,000 for the three
months ended June 30, 1996 and 1997, respectively. This variance was primarily
due to SPSS' investment at higher interest rates in 1997.
Other Income (Expense). Other income (expense) consists of foreign currency
transaction gains and losses, which amounted to an expense of $56,000 for the
three months ended June 30, 1996 and a gain of $6,000 for the three months ended
June 30, 1997.
Provision for Income Taxes. The provision for income taxes was $930,000 and
$878,000, for the three months ended June 30, 1996 and 1997, respectively,
reflecting an effective tax rate of approximately 34%.
Comparison of Six Months Ended June 30, 1996 to Six Months Ended June 30, 1997.
Net Revenues. Net revenues were $39,999,000 and $44,765,000 in the six months
ended June 30, 1996 and 1997, respectively, an increase of 12%. This revenue
increase was influenced, in part by the acquisition of DeltaGraph software, a
graphics product formerly marketed by DeltaPoint, Inc., effective May 1, 1997.
Net of DeltaGraph revenue of approximately $470,000, the Company's increase in
sales was 11%. Revenues from Desktop products increased 16% over the
corresponding period in 1996 and revenues from Large System products decreased
19%. The increase in revenues from Desktop products reflected $4,753,000 in new
revenues from SPSS for Windows. In addition, revenues from annual license
renewals of Desktop products resulted in a net increase of $1,121,000,
reflecting a $1,227,000 increase in annual license renewals of SPSS for Windows.
The decrease in revenues from Large System products was primarily due to
cancellations in mainframe and UNIX licenses. Other products and services
revenues increased 25% primarily due to the increase in training and consulting
revenues. Revenues for the first six months of 1997 were adversely affected by
changes in foreign currency exchange rates.
Cost of Revenues. Cost of revenues were $4,073,000 and $4,607,000 for the six
months ended June 30, 1996 and 1997, respectively, an increase of 13%. Such
costs increased due to higher sales levels and higher amortization amounts of
capitalized software and product translations. As a percentage of net revenues,
such expenses remained constant at 10%.
<PAGE>
Sales and Marketing. Sales and marketing expenses were $20,731,000 and
$22,712,000 in the six months ended June 30, 1996 and 1997, respectively, an
increase of 10%. This increase was due to expansion of the domestic and
international sales and marketing organizations, increased costs for the Clear
and Sigma-series (Jandel) product lines, and salary and commission increases.
These increases were partially offset by changes in foreign currency exchange
rates. As a percentage of net revenues, such expenses decreased from 52% to 51%.
Product Development. Product development expenses were $6,310,000 and $7,196,000
(net of capitalized software development costs of $459,000 and $723,000) for the
six months ended June 30, 1996 and 1997, respectively, an increase of 14%. In
the corresponding periods in 1996 and 1997, the Company's expense for
amortization of capitalized software and product translations, included in cost
of revenues, was $694,000 and $883,000, respectively. The increase in product
development expenses was primarily due to salary and recruiting fee increases
and other additions to the product development staff. As a percentage of net
revenues, such expenses remained constant at 16%.
General and Administrative. General and administrative expenses were $3,435,000
and $3,141,000 in the six months ended June 30, 1996 and 1997, respectively, a
decrease of 9%. Such expenses decreased primarily due to the reduction of
administrative costs of the acquired entities. As a percentage of net revenues,
general and administrative expenses decreased from 8% to 7%.
Acquisition-related Charges. Charges related to the acquisition of DeltaGraph
software from DeltaPoint, Inc. in the six months ended June 30, 1997 totaled
$1,065,000 and represented one-time write-offs of in-process technology and
other acquisition-related charges.
Net Interest Income. Net interest income was $226,000 and $272,000 for the six
months ended June 30, 1996 and 1997, respectively. This favorable variance can
be attributed to investment at higher interest rates in 1997.
Other Income (Expense). Other income (expense) was $(106,000) and $(16,000) for
the six months ended June 30, 1996 and 1997, respectively, reflecting foreign
currency translation losses.
Provision for Income Taxes. Provision for income taxes was $1,930,000 and
$2,113,000 in the six months ended June 30, 1996 and 1997, respectively,
reflecting an approximate effective tax rate of 34%.
<PAGE>
Liquidity and Capital Resources
The Company had debt totaling $436,000 as of June 30, 1997 and held
approximately $7,698,000 of cash and cash equivalents. The Company's Japanese
subsidiary borrowed Y200 million in a short term bank loan during the first
quarter of 1997. The loan is unsecured and has no restrictions as to its use.
The loan bears interest at an annual rate of .95% and required a lump sum
repayment of Y60 million in April 1997 and monthly repayments of Y25 million.
The loan will be completely repaid in August 1997. The proceeds of the loan were
used to take advantage of foreign exchange option contracts (Y140 million) that
came due in the first quarter. Y50 million remains outstanding as of June 30,
1997.
Funds in the first six months of 1997 were used in operations and for payments
related to the Company's acquisition of DeltaGraph Software and liabilities
assumed in the acquisitions of Clear Software and Jandel Software. Capital
expenditures were also made for furniture, computer equipment and leasehold
improvements for newly hired employees and product development, and for
computing equipment and office moves in Japan and Australia.
The Company currently has an available $5,000,000 secured line of credit with
Bank of America N.T.S.A. ("B of A"), under which borrowings bear interest at the
reference rate (currently 8.25%). As of June 30, 1997, the Company had no
borrowings under this line of credit. The credit agreement with B of A requires
the Company to comply with certain specified financial ratios and tests, and
restricts the Company's ability to, among other things (i) pay dividends or make
distributions, (ii) incur additional indebtedness, (iii) create liens on assets,
(iv) make investments, (v) engage in mergers, acquisitions or consolidations,
(vi) sell assets and (vii) engage in certain transactions with affiliates.
The Company anticipates that amounts available under its line of credit,
existing sources of liquidity and cash flows generated from operations will be
sufficient to fund the Company's operations and capital requirements for the
foreseeable future. However, no assurance can be given that changing business
circumstances will not require additional capital for reasons that are not
currently anticipated or that the necessary additional capital will then be
available to the Company on favorable terms, or at all.
International Operations
Significant growth in the Company's international operations continued during
the second quarter of 1997. The portion of revenues attributable to
international operations was adversely affected by the relationship of the U.S.
dollar when compared to other foreign currencies. Net corporate revenues
increased 14% in the three months ended June 30, 1997, when compared to the
three months ended June 30, 1996 and 12% for the six months ended June 30, 1997
when compared to the same period of 1996. Net of the effects of changes in
foreign currency rates, the increase would have been approximately 17% and 15%,
respectively.
<PAGE>
Safe Harbor
"Safe Harbor" Statement under the Private Securities Litigation Reform
Act of 1995: With the exception of historical information, the matters discussed
in this Form 10-Q include forward-looking statements that involve risks and
uncertainties described in this document, and the Company's other filings with
the Securities and Exchange Commission that could cause actual results to vary
materially from the future results indicated in such forward-looking statements.
No assurance can be given that the future results covered by the forward-looking
statements will be achieved. Other factors could also cause actual results to
vary materially from the future results indicated in such forward-looking
statements.
PART II - OTHER INFORMATION
Item 1. Legal Proceedings
Currently there are no material pending legal proceedings to which the Company
or any of its subsidiaries is a party or to which any of their property is
subject.
Item 4. Submission of Matters to a Vote of Security-Holders
The Company's Annual Meeting of Stockholders was held on June 18, 1997. The
following person was nominated and elected to serve as a Director of the Company
for a term of three years or until his successor has been duly elected and
qualified:
Nominee For Withheld
Jack Noonan 6,956,790 3,377
In addition, the Company's appointment of KPMG Peat Marwick LLP to serve as its
independent auditor for fiscal year 1997 was ratified in accordance with the
following vote:
For Against Abstain
6,952,840 3,816 3,511
<PAGE>
Item 6. Exhibits and Reports on Form 8-K.
(a) Exhibits (Note: Management contracts and compensatory plans
or arrangements are underlined in the following list.)
Incorporation
Exhibit by Reference
Number Description of Document if applicable)
2.1 Agreement and Plan of Merger among SPSS Inc., @2.1
SPSS ACSUB, Inc., Clear Software, Inc. and the
shareholders named therein, dated September 23, 1996.
2.2 Agreement and Plan of Merger among SPSS Inc., @@Annex A
SPSS Acquisition Inc. and Jandel Corporation,
dated October 30, 1996.
2.3 Asset Purchase Agreement, by and between SPSS Inc. and
DeltaPoint, Inc., dated as of May 1, 1997
3.1 Certificate of Incorporation of the Company * 3.2
3.2 By-Laws of the Company * 3.4
4.1 Credit Agreement *** 4.1
4.2 First Amendment to Credit Agreement @@@ 4.2
10.1 Employment Agreement with Jack Noonan + 10.1
-------------------------------------
10.2 Agreement with Valletta ** 10.2
-----------------------
10.3 Agreement between the Company and ** 10.5
Prentice-Hall
10.4 Software Distribution Agreement between ** 10.6
the Company and IBM
10.5 HOOPS Agreement ** 10.7
10.6 Stockholders Agreement * 10.8
10.7 Agreements with CSDC * 10.9
10.8 Amended 1991 Stock Option Plan * 10.10
------------------------------
10.9 SYSTAT, INC. Asset Purchase Agreement ++10.9
10.10 Employment Agreement with Leland Wilkinson ++10.10
10.11 1994 Bonus Compensation +++10.11
-----------------------
10.12 Lease for Chicago, Illinois Office +++10.12
10.13 Amendment to Lease for Chicago, Illinois Office +++10.13
10.14 1995 Equity Incentive Plan - 10.14
--------------------------
10.15 1995 Bonus Compensation -- 10.15
-----------------------
10.16 Lease for Chicago, Illinois Office -- 10.16
10.17 Amended and Restated 1995 Equity Incentive Plan --- 10.17
-----------------------------------------------
10.18 1996 Bonus Compensation &10.18
-----------------------
10.19 Software Distribution Agreement between the &10.19
Company and Banta Global Turnkey
10.20 Lease for Chicago, Illinois Office in Sears Tower &&10.20
15.1 Acknowledgment of Independent Certified
Public Accountants Regarding Independent
Auditors' Review Report
27.1 Financial Data Schedule
- -------------------------------
@ Previously filed with the Report on Form 8-K of SPSS Inc., dated September
26, 1996, filed on October 11, 1996, as amended on Form 8-K/A-1, filed on
November 1, 1996.
@@ Previously filed with Amendment No. 1 to Form S-4 Registration Statement of
SPSS Inc., filed on November 7, 1996.
@@@ Previously filed with the Annual Report on Form 10-K of SPSS Inc. for the
Year ended December 31, 1996 (Registration No. 33-64732).
<PAGE>
* Previously filed with Amendment No. 2 to Form S-1 Registration Statement of
SPSS Inc. filed on August 4, 1993 (Registration No. 33-64732).
** Previously filed with Amendment No. 1 to Form S-1 Registration Statement of
SPSS Inc. filed on July 23, 1993 (Registration No. 33-64732).
*** Previously filed with the Quarterly Report on Form 10-Q of SPSS Inc. for
the Quarterly Period Ended March 31, 1996 (Registration No. 33-64732).
+ Previously filed with the Form S-1 Registration Statement of SPSS Inc.
filed on June 22, 1993 (Registration No. 33-64732).
++ Previously filed with the Form S-1 Registration Statement of SPSS Inc.
filed on December 5, 1994 (Registration No. 33-86858).
+++ Previously filed with the Annual Report on Form 10-K of SPSS Inc. for the
Year Ended December 31, 1994 (Registration No. 33-64732).
- - Previously filed with the 1995 Proxy Statement of SPSS Inc.
- -- Previously filed with the Annual Report on Form 10-K of SPSS Inc. for the
Year Ended December 31, 1995 (Registration No. 33-64732).
- --- Previously filed with the 1996 Proxy Statement of SPSS Inc.
& Previously filed with the Annual Report on Form 10-K of SPSS Inc. for the
Year ended December 31, 1996 (Registration No. 33-64732).
&& Previously filed with the Quarterly Report on Form 10-Q of SPSS Inc. for
the Quarterly Period ended march 31, 1997 (Registration No. 33-64732).
(b) Reports on Form 8-K
There were no reports on Form 8-K filed by the Company during
the fiscal quarter ended June 30, 1997.
<PAGE>
SIGNATURES
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.
SPSS Inc.
Date: August 14, 1997 By: /s/ Jack Noonan
-------------------
Jack Noonan
President and Chief
Executive Officer
Pursuant to the requirements of the Securities Exchange Act of 1934,
this report has been signed by the undersigned, in his capacity as the principal
financial officer of the Registrant.
Date: August 14, 1997 By: /s/ Edward Hamburg
----------------------
Edward Hamburg
Senior Vice-President,
Corporate Operations and
Chief Financial Officer
<PAGE>
EXHIBIT INDEX
Exhibit Page
Number Description of Document Number
2.3 Asset Purchase Agreement, by and between SPSS Inc.
and DeltaPoint, Inc., dated as of May 1, 1997
15.1 Acknowledgment of Independent Certified
Public Accountants Regarding Independent
Auditors' Review Report
27.1 Financial Data Schedule
EXHIBIT 2.3
ASSET PURCHASE AGREEMENT
By and Between
SPSS INC.
and
DELTAPOINT, INC.
Dated as of May 1, 1997
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ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT, dated as of May 1, 1997 (the
"Agreement"), by and between DELTAPOINT, INC., a California corporation
("DeltaPoint") and SPSS Inc., a Delaware corporation ("SPSS").
W I T N E S S E T H:
WHEREAS, DeltaPoint is engaged in the business of developing
and distributing software, including its DeltaGraph computer software products
("DeltaGraph"); and
WHEREAS, DeltaPoint desires to sell to SPSS, and SPSS desires
to purchase from DeltaPoint, certain of DeltaPoint's assets primarily relating
to DeltaGraph (the "Assets");
NOW, THEREFORE, in consideration of the premises, the mutual
covenants and agreements contained herein, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, and
in reliance upon the representations and warranties contained herein, the
parties hereto agree as follows:
ARTICLE I
TERMS OF PURCHASE AND SALE
1.1 Purchase and Sale. (a) Except as set forth below or in
Section 1.4 and subject to the terms and conditions of this Agreement, on the
Closing Date (as defined herein), DeltaPoint hereby agrees to sell, convey,
assign, transfer and deliver to SPSS, and SPSS hereby agrees to purchase and
accept from DeltaPoint, all of DeltaPoint's assets (other than Excluded Assets)
primarily relating to and comprising DeltaGraph, including, but not limited to
all intellectual property related to its current and future development, sales
and related cash and accounts receivable generated from and after the effective
date of this Agreement as contemplated in Section 1.2 hereof (the "Effective
Date"), assets, software, deposits and properties of every kind, character and
description, whether tangible, intangible, or personal, and wherever located
(collectively, the "Assets"). The Assets shall include, but not be limited to,
the following:
(i) the DeltaGraph inventory and stock in trade existing as
of the Closing Date except as identified on Schedule
1.1(a), wherever located, owned by DeltaPoint on the
Closing Date (the "Inventory"), and all inventories of
DeltaGraph computer program code (in all media) and
DeltaGraph materials and program documentation;
(ii) all technical and descriptive materials (other than
Inventory) relating to the acquisition, design,
development, use or maintenance of DeltaGraph computer
code and DeltaGraph
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program documentation and materials in any and all
languages (the "Technical Documentation");
(iii)with respect to DeltaGraph, all of DeltaPoint's rights
and benefits (but excluding, unless otherwise
specifically provided herein, all duties and
obligations arising prior to the Closing Date) relating
to contractual rights, sales representative agreements,
distributor agreements, OEM agreements, license
agreements, vendors' warranties on DeltaGraph
inventory, orders on the books and work-in-process
existing on the Closing Date with respect to
DeltaGraph, and other commitments or arrangements, oral
or written, with any person or entity respecting the
ownership, license, acquisition, design, development,
distribution, marketing, use or maintenance of
DeltaGraph computer program code, related technical or
user documentation, and DeltaGraph data bases (the
"Contracts").
(iv) with respect to DeltaGraph, all of DeltaPoint's sales
and related accounts receivable generated from and
after the Effective Date (net of trade discounts
offered in the ordinary course consistent with past
practices), including all license fees, maintenance
fees and charges due or to become due under the
Contracts, and advance payments, claims for refunds,
deposits and other prepaid items existing on the
Closing Date;
(v) the name "DeltaGraph" and all variations thereof, and
any trade names, trademarks and service marks related
thereto (including registrations, licenses and
applications pertaining thereto), whether registered or
at common law, together with all goodwill associated
therewith;
(vi) with respect to DeltaGraph, all of DeltaPoint's parts
lists, vendor lists, customer lists, catalogues,
promotion lists and marketing data and other
compilations of names and requirements, and trade
secrets and other material information used by
DeltaPoint with respect to DeltaGraph;
(vii)with respect to DeltaGraph, all of DeltaPoint's
computer programs, designs, processes, drawings,
schematics, blueprints, copyrights, copyright
applications, inventions, processes, know-how, or trade
secrets or proprietary information, patents and patent
applications related to DeltaGraph;
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(viii) cash generated from sales and collection of related
accounts receivable from and after the Effective Date
with respect to DeltaGraph and all of DeltaPoint's
rights to receive payment on the Closing Date with
respect to DeltaGraph (other than the right to receive
payment in respect of Excluded Assets); and
(ix) all other intangible property owned by DeltaPoint on
the Closing Date and used in connection with DeltaGraph
and all goodwill associated therewith.
(b) The term "Excluded Assets" means:
(i) all rights of DeltaPoint under this Agreement; the
Management Agreement (the "Management Agreement")
between DeltaPoint and SPSS dated the date hereof with
respect to DeltaPoint's management of the DeltaGraph
business during the term thereof; and the agreements,
instruments and certificates delivered in connection
with this Agreement;
(ii) cash on hand or in banks owned by DeltaPoint arising
out of operations of DeltaGraph during the period prior
to the Effective Date;
(iii)all accounts receivable of DeltaPoint arising out of
operations of DeltaGraph during the period prior to the
Effective Date;
(iv) all owned real property and other owned interests in
real property of DeltaPoint, in each case together with
DeltaPoint's right, title and interest in all
buildings, improvements, fixtures and all other
appurtenances thereto;
(v) all leasehold interests in real property of DeltaPoint
and the related Contracts, in each case together with
DeltaPoint's right, title and interest in all
buildings, improvements, fixtures and all other
appurtenances;
(vi) all other personal property (including machinery,
equipment and furniture, but excluding Inventory and
Technical Documentation) of DeltaPoint whether or not
used, intended to be used, or held for use primarily by
or for the DeltaGraph business;
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(vii)all rights relating to any liabilities of DeltaPoint
or the DeltaGraph business not constituting Assumed
Liabilities (hereinafter, collectively, the "Excluded
Liabilities").
With respect to any purchase by SPSS of any of the personal property (other than
Inventory and Technical Documentation) used, intended to be used, or held for
use primarily by or for the DeltaGraph business, it is understood that such
purchase shall be effected pursuant to a separate agreement with separate
consideration agreed in respect thereof as the parties may agree.
1.2 Time and Place of Closing. Subject to the terms and
conditions of this Agreement, the consummation of the transactions contemplated
hereby (the "Closing") shall take place at the offices of Ross & Hardies, 150 N.
Michigan Avenue, Chicago, Illinois at 9:00 a.m. on June 27, 1997 (the "Closing
Date") or at such other place or time as the parties may agree and, for all
purposes, shall be deemed to be effective as of May 1, 1997.
1.3 Purchase Price; Additional Cash Payment. At the Closing,
as consideration for the sale and transfer of the Assets to SPSS, SPSS shall pay
DeltaPoint Nine Hundred Ten Thousand and No/100 Dollars ($910,000.00) (the
"Purchase Price") by wire transfer of immediately available funds to an account
designated by DeltaPoint by written notice to SPSS given not less than three
business days prior to the Closing Date.
1.3.1 Allocation of Purchase Price. SPSS and DeltaPoint
agree that the Purchase Price shall be allocated after the Closing Date in a
manner mutually acceptable to the parties. SPSS and DeltaPoint agree that such
valuation and allocation to be agreed upon post-closing will be determined in
good faith by arm's length negotiation and in the judgment of the parties will
properly reflect the fair market value of the Assets and the consideration
therefor transferred pursuant to this Agreement. SPSS and DeltaPoint hereby
agree to report the purchase and sale of the Assets for federal income tax
purposes pursuant to Section 1060 of the Internal Revenue Code of 1986, as
amended (the "Code"), on a timely basis, in accordance with such allocation and
to give the other prompt written notice of any assertion or claim by the
Internal Revenue Service that the Purchase Price allocated to any of the Assets
in accordance herewith is incorrect or is otherwise unacceptable for federal
income tax purposes. SPSS and DeltaPoint shall also file on a timely basis any
amendments to such report required to be filed as a result of any adjustment in
the Purchase Price allocation.
1.3.2 Additional Cash Payment. (a) In addition,
within 20 days after the Closing Date, and provided that the Qualified Cost of
Goods Sold (defined below) in respect of DeltaGraph software products sold
during the period commencing on the Effective Date and ending on the Closing
Date is greater than the Cash Collections (defined below) due SPSS, as
contemplated by Section 1.1(a)(viii) hereof, SPSS shall pay to DeltaPoint (in
the same manner as provided in Section 1.3) an amount equal to the Qualified
Cost of Goods Sold in respect of DeltaGraph software products sold during the
period commencing on the Effective Date and ending on the Closing Date less the
amount of any cash collections (including the amount of any
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sales tax and shipping and handling actually collected) actually received by
DeltaPoint in respect of such sales for such period as contemplated by Section
1.1(a)(viii) hereof (the "Cash Collections"). If, however, the Cash Collections
exceed the Qualified Cost of Goods Sold for such period, DeltaPoint shall,
within 20 days of the Closing Date, pay to SPSS (in the same manner as provided
in Section 1.3) an amount equal to the Cash Collections less the Qualified Cost
of Goods Sold in respect of DeltaGraph software products sold during the period
commencing on the Effective Date and ending on the Closing Date. "Qualified Cost
of Goods Sold" means, in respect of any DeltaGraph software product sales, the
related cost of goods sold consisting of direct materials, shipping and handling
charges, contract manufacturing costs to convert raw materials into finished
products, and royalties, as determined in accordance with DeltaPoint's past
practices plus (i) the amount of the related sales tax and shipping and handling
and (ii) the related marketing and other expenditures as may be reasonably
agreed upon by SPSS and DeltaPoint.
(b) On the date which is 15 days after the Closing Date,
DeltaPoint shall deliver to SPSS a good faith calculation setting forth in
reasonable detail the amount of the additional cash payment to be made pursuant
to Section 1.3.2(a). In the event that SPSS shall in good faith dispute the
amount of such payment, SPSS shall pay to DeltaPoint (or DeltaPoint shall pay to
SPSS, as the case may be) that portion of payment with respect to which there is
no dispute and the parties agree that the payments to be made under the
Management Agreement shall be adjusted to reflect the resolution of such
dispute.
1.4 Assumption of Liabilities and Obligations. SPSS agrees
that, effective upon the Closing, it shall assume only the liabilities and
obligations of DeltaPoint related to Assets described on Schedule 1.4 attached
hereto; provided, however, in no event shall SPSS assume liabilities or
obligations relating to royalties or other payments due and owing thereunder
prior to the Closing Date or material obligations or liabilities not disclosed
to SPSS (collectively, the "Assumed Liabilities"), and SPSS shall have no other
duty or obligation. It is expressly understood and agreed that SPSS shall not be
liable for Excluded Liabilities.
Unless specifically stated to the contrary, this Agreement
shall not constitute an agreement or an attempted agreement to transfer,
sublease or assign any Assumed Liability or any claim or right arising
thereunder or resulting therefrom if any such attempted transfer, sublease or
assignment, without the consent of any other party thereto, would constitute a
breach of such Assumed Liability or in any way affect the rights of SPSS
thereunder. DeltaPoint shall, between the date hereof and the Closing and, if
requested by SPSS, after the Closing, use all reasonable efforts to obtain the
consent of any such party to the transfer, sublease or assignment thereof by
DeltaPoint to SPSS hereunder in all cases in which such consent is required for
transfer, sublease or assignment. If any such consent is not obtained, or if any
attempted assignment thereof would be ineffective or would affect the rights of
DeltaPoint thereunder such that SPSS would not in fact receive all rights
related to an Assumed Liability, DeltaPoint shall, with the reasonable
assistance of SPSS, at DeltaPoint's expense, perform such Assumed Liability for
the account of SPSS or otherwise cooperate with SPSS at DeltaPoint's expense in
any arrangement necessary or desirable to provide for SPSS the benefits under
any such Assumed
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Liability, including, without limitation, enforcement for the benefit of SPSS of
any and all rights of DeltaPoint against the other party thereto arising out of
the breach, termination or cancellation of such Assumed Liability by such other
party or otherwise. With respect to those Assumed Liabilities that are license
agreements as to which licensee consent is required for DeltaPoint to assign
such license agreements to SPSS, (i) SPSS shall and hereby does grant DeltaPoint
such licenses as DeltaPoint requires to be in compliance with such license
agreements and (ii) DeltaPoint and SPSS shall enter into good faith negotiations
with such licensee for the assignment of such license agreement to SPSS.
1.5 Liabilities Not Assumed. Pursuant to Article X, DeltaPoint
shall indemnify, defend and hold SPSS harmless from all Excluded Liabilities and
DeltaPoint's legal fees and other expenses incurred in connection with the
transactions contemplated hereby, and all claims, suits, actions, losses,
damages, costs and expenses (including, without limitation, reasonable
attorneys' fees) arising therefrom or from any failure by DeltaPoint to pay or
discharge such liabilities and obligations as and when they become due.
1.6 Taxes. SPSS shall not be responsible for, or suffer a
reduction in assets to be received by it for, any income (of DeltaPoint),
California sales, use, California excise or other taxes of any kind or arising
from this purchase on the Closing Date other than those listed on Schedule 1.4,
which SPSS is expressly assuming pursuant to this Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF DELTAPOINT
As of the date hereof and as of the Closing Date, DeltaPoint represents
and warrants to SPSS as follows:
2.1 Organization and Qualification. DeltaPoint is a
corporation duly organized, validly existing and in good standing under the laws
of the State of California and has the corporate power and authority to enter
into this Agreement, to consummate the transactions contemplated hereby, to own
or lease the Assets which it presently owns or leases and to carry on its
business as presently conducted. DeltaPoint is duly licensed or qualified to do
business as a foreign corporation, and is in good standing in every foreign
jurisdiction in which it is required to be so licensed or qualified, except to
the extent where such failure to be so licensed or qualified would not have a
material adverse effect on DeltaPoint or its ability to consummate the
transactions contemplated by this Agreement. DeltaPoint has no subsidiaries or
other entities controlled by or under common control with DeltaPoint.
2.2 Authority. DeltaPoint has full power, capacity and
authority (corporate or otherwise) to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby have
been duly and validly authorized and approved by all necessary action on the
part of the Board of Directors of DeltaPoint, and no other proceedings
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(corporate or otherwise) on the part of either DeltaPoint or its shareholders
are necessary to authorize this Agreement or to consummate the transactions
contemplated hereby. This Agreement and the other agreements contemplated by
this Agreement have been duly and validly executed and delivered by DeltaPoint,
and each constitutes a legal, valid and binding agreement of DeltaPoint,
enforceable against DeltaPoint in accordance with their respective terms, except
as their obligations thereunder may be limited by bankruptcy, insolvency or
other similar laws affecting the enforcement of creditors' rights in general and
by general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
2.3 Consents and Approvals. Except as set forth in Schedule
2.3 hereto, there is no authorization, consent, order or approval of, or notice
to or filing with, any individual or entity required to be obtained or given in
order for DeltaPoint to consummate the transactions contemplated hereby and
fully perform its obligations hereunder.
2.4 Absence of Conflicts. The execution, delivery and
performance by DeltaPoint of this Agreement and the consummation by DeltaPoint
of the transactions contemplated hereby will not, with or without the giving of
notice or lapse of time or both, (i) violate any provision of law, statute, rule
or regulation to which DeltaPoint is subject, (ii) violate any order, judgment
or decree applicable to DeltaPoint, (iii) conflict with or result in a breach or
default under any term or condition of the Articles of Incorporation or By-Laws
of DeltaPoint, or any material agreement or other instrument to which DeltaPoint
is a party or by which it is bound, or to which any of the Assets are subject,
(iv) result in the creation or imposition of any lien, pledge, claim, security
interest or encumbrance of any nature whatsoever on the Assets, or (v) cause, or
give any person contractual grounds to cause, the maturity of the Assumed
Liabilities to be accelerated.
2.5 Financial Information; Accounts Receivable. DeltaPoint has
previously delivered to SPSS the financial information set forth on Schedule
2.5, which includes all available information with respect to DeltaGraph's
revenue, inventory, receivables, product line profit and loss (except for
allocated overhead items and other items set forth on Schedule 2.5(a)), sales
return reserves and product line budget (except for allocated overhead items and
other items set forth on Schedule 2.5(a)). Such financial information is
accurate and in accordance with the books and records of DeltaPoint.
Schedule 2.5 contains a correct and complete list of the sales
and related collections of accounts receivable of DeltaPoint relating to the
Assets beginning the Effective Date through the date stated thereon, which is
the most recent practicable date. There have been no changes in such accounts
receivable except as may have occurred in the ordinary course of business since
such date. Except as set forth on Schedule 2.5, all such accounts receivable are
valid, genuine and subsisting; DeltaPoint has not been notified in writing that
any account receivable debtor is contesting or setting off against any such
accounts receivable; and all such accounts receivable are collectible, except
for a reasonable allowance for uncollectible accounts not exceeding $5,000.00.
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Except as described on Schedule 2.5, DeltaPoint is not in
default in respect of any term or condition of any indebtedness or liability
relating to the Assets.
2.6 Absence of Undisclosed Liabilities. Except for Excluded
Assets and Assumed Liabilities and other liabilities incurred by DeltaPoint in
the ordinary course consistent with past practice (which liabilities are not
being assumed by SPSS hereunder), to the best of DeltaPoint's knowledge,
DeltaPoint does not have any liabilities or obligations relating to the Assets,
whether accrued, absolute or contingent, determined or undetermined, or whether
due or to become due (including, without limitation, obligations as guarantor).
DeltaPoint knows of no reasonable basis for the assertion of any claim or
liability relating to the Assets or DeltaPoint's business relating thereto, and
is not aware of any occurrence or fact that has or might have an adverse effect
upon the Assets.
2.7 Current Liabilities/Receivables. The accounts and trade
payables and accounts receivable of DeltaPoint with respect to the Assets as of
April 30, 1997, and those incurred between April 30, 1997 and the Closing Date,
were incurred or realized in the ordinary course of business and, with respect
to accounts and trade payables, were and are in amounts consistent in all
material respects with historical levels of accounts and trade payables of
DeltaPoint with respect to the Assets. There has been no material adverse change
in the amount or nature of DeltaPoint's accounts receivable relating to the
Assets since April 30, 1997.
2.8 Absence of Certain Changes or Events. Except as set forth
on Schedule 2.8, since April 30, 1997, there has not been (a) any material
damage, destruction or casualty loss to the Assets (whether covered by insurance
or not) outside the ordinary course of business; (b) any entry into any
transaction, commitment or agreement (including, without limitation, any
borrowing) material to the Assets, or relating to the Assets and outside the
ordinary course of business of DeltaPoint; (c) any sale, transfer or other
disposition of the Assets to any party, except for payment of obligations
incurred, and sale of products, in the ordinary course of business consistent
with past practices; (d) any amendment or termination of any material Contract
or agreement relating to the Assets to which DeltaPoint is a party or any
termination or waiver of any other rights of value relating to the Assets other
than any amendment, termination or waiver in the ordinary course consistent with
past practices; (e) any failure by DeltaPoint to pay its accounts payable or
other obligations relating to the Assets in the ordinary course of business; (f)
any pledge of any of the Assets or any action or inaction which would subject
the Assets to any lien, security interest, mortgage, pledge, claim, charge or
other encumbrance of any kind; (g) the incurrence of any liability or obligation
by DeltaPoint related to the Assets, except for liabilities incurred in the
ordinary course of business; (h) any actual or threatened termination or
cancellation of, or modification or change in, any business relationship with
any customer or customers of DeltaPoint relating to the Assets or other
agreement or arrangement involving or related to the Assets which if terminated
or cancelled would materially and adversely effect the Assets; (i) any other
event or condition of any character which materially and adversely affects the
Assets; or (r) any agreement, whether in writing or otherwise, to take any
action described in this Section 2.8.
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2.9 Personal Property; Inventories. DeltaPoint has good and
marketable title to, and is in possession of or has control over, all of the
personal property comprising the Assets, none of which is held under or subject
to any pledge, lien, lease, encumbrance, conditional sales contract or other
security arrangement except to the extent described in Schedule 2.9(a) hereto.
DeltaPoint's inventories of DeltaGraph are as shown on Schedule 2.9(b) hereto
and are in good and merchantable condition and are of a quality suitable and
usable or saleable in the ordinary course of business for the purposes for which
such inventories are intended (other than any work in process which is subject
to completion). There has been no material adverse change in DeltaPoint's
inventories of DeltaGraph since April 30, 1997.
2.10 Patents, Trademarks, Etc. Schedule 2.10 hereto contains
an accurate and complete description of all domestic and foreign trademark
registrations, copyright registrations and all applications therefor with
respect to DeltaGraph (the "Registered Intellectual Property"), presently owned
or held by DeltaPoint or under which DeltaPoint owns or holds any license, or in
which DeltaPoint owns or holds any direct or indirect interest. To the best
knowledge of DeltaPoint, no DeltaGraph products manufactured, distributed or
sold by DeltaPoint, nor any of DeltaPoint's activities, conflict with, infringe
or otherwise violate any patents, trademarks or copyrights, or any other rights,
of any individual or entity. DeltaPoint has the sole and exclusive right to use,
has the right and power to sell, and has taken reasonable measures to maintain
and protect the Intellectual Property (as defined herein); except as set forth
on Schedule 2.10, no claims have been asserted by any individual or entity with
respect thereto or challenging or questioning the validity or effectiveness of
any license or agreement with respect thereto, and, to the best knowledge of
DeltaPoint, there is no valid basis for any such claim. With respect to the
Assets being purchased hereto, DeltaPoint is not using confidential information
or trade secrets of any former employer of any past or present employees engaged
in DeltaPoint's business. The items described in Schedule 2.10 and DeltaPoint's
other intellectual property relating to DeltaGraph (including, without
limitation, trademarks, service marks, logos, trade names, assumed names, trade
secrets, know-how, technology, inventions, processes, designs and copyrights)
(collectively, "Intellectual Property") are adequate to conduct DeltaPoint's
business with respect to DeltaGraph as presently conducted. Upon consummation of
the transactions contemplated hereby, SPSS will acquire good and marketable
title to all of the Intellectual Property and the goodwill associated therewith.
2.11 Employees. All personnel, including employees, agents,
consultants and contractors, who have contributed to or participated in the
conception and development of the Intellectual Property on behalf of DeltaPoint
either (a) were at such time parties to "work-for-hire" arrangements or
agreements with DeltaPoint, in accordance with applicable federal and state law,
that has accorded DeltaPoint full, effective, exclusive and original ownership
of all intellectual property thereby arising, or (b) have executed appropriate
instruments of assignment, which are still in full force and effect, in favor of
DeltaPoint, as assignee, that have conveyed to DeltaPoint full, effective and
exclusive ownership of all intellectual property thereby arising. DeltaPoint
does not own or have any right, license or interest, whether as a licensee,
licensor or otherwise, in any copyrights, patents, applications for copyrights
or patents, trade secrets,
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inventions, processes and designs or in any trademarks, service marks, trade
names, or applications for them related to DeltaGraph, except as listed or
described in Schedule 2.10. No employee of DeltaPoint is in violation of (i) any
term of any employment contract, any "work for hire" arrangement or agreement,
or any patent disclosure agreement or (ii) any other contract or agreement, or
any restrictive covenant relating to the rights of any such employee to use
trade secrets or proprietary information of others.
2.12 Source Code. Except as set forth in Schedule 2.12,
DeltaPoint owns all rights, title and interest in and to the source code for
DeltaGraph constituting a portion of the Assets and has not distributed any
copies of the source code for DeltaGraph constituting a portion of the Assets to
any third parties, and DeltaPoint has not agreed to pay to any individual or
entity any royalty, commission or other amount on account of sales of
DeltaGraph. DeltaPoint owns all rights, title and interest in and to all
localizations and translations of manuals and other technical documentation.
2.13 Contracts and Commitments.
(a) Other than standard form customer and
distributor contracts entered into in the ordinary course of business, and
except as set forth in Schedule 2.9(a), 2.12, 2.13 and 2.22 hereto, DeltaPoint
is not a party to any material agreements, contracts, guarantees, commitments,
restrictions or instruments of any kind relating to the Assets ("Scheduled
Contracts"). True and correct copies of all Contracts listed on Schedules
2.9(a), 2.12, 2.13 and 2.22 hereto have been made available to SPSS at a
reasonable time prior to Closing. All of the Scheduled Contracts are valid and
binding obligations of DeltaPoint, enforceable in accordance with their
respective terms to the extent permitted by applicable law, and are in full
force and effect and DeltaPoint is in compliance therewith. None of the
Scheduled Contracts has, or may to the best of DeltaPoint's knowledge have, a
material adverse effect on the Assets. To DeltaPoint's knowledge, no other party
to any of the Scheduled Contracts is in material default or breach thereof. True
and correct copies of each standard form customer and distributor contract
currently in use by DeltaPoint in the conduct of its business relating to the
Assets are attached to Schedule 2.13. DeltaPoint has not agreed with any
customer or distributor to make any variation in any such contract which could
have a material adverse effect on the Assets.
(b) DeltaPoint is not in default, and there is
no basis for any valid claim of default, in any material respect under any of
the Scheduled Contracts.
2.14 Licenses and Royalties. Except as set forth on Schedule
2.12 hereto, DeltaPoint is not a licensee under any license with respect to the
Assets, including, without limitation, licenses with respect to source codes
used or to be used in DeltaGraph, and does not have an obligation to pay
royalties to any third party in connection therewith, and DeltaPoint has not
granted to any individual or entity any rights with respect to the source codes
for DeltaGraph. Notwithstanding anything to the contrary contained herein,
DeltaPoint has paid any and all royalties due through the Effective Date under
such licenses and, with respect to that
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certain Software Publishing Agreement dated as of June 30, 1992, as same may
have been amended, between DeltaPoint and Halcyon Software, Inc. (the "Halcyon
Agreement"), no royalty is due or applicable to DeltaGraph. No royalties are due
or payable with respect to DeltaGraph under that certain Small Developer Porting
Technology License Agreement dated as of June 7, 1994 between DeltaPoint and
Altura Software, Inc.
2.15 Adequacy of Documentation. The Technical Documentation
includes the source code, system documentation, statements or principles of
operation, and schematics for DeltaGraph currently maintained or licensed by
DeltaPoint, as well as any pertinent commentary or explanation that may be
necessary to render such materials understandable and usable by a trained
computer programmer familiar with the relevant compilers, tools and platform.
2.16 Third-Party Components in Software Programs. DeltaPoint
has validly and effectively obtained the right and license to use, copy, modify
and distribute any third-party programming and materials contained in DeltaGraph
and the Technical Documentation pursuant to licenses from third parties as set
forth in Schedule 2.16.
Except as otherwise provided in Schedule 2.16, DeltaGraph and
the Technical Documentation contain no other programming or materials in which
any third party may claim superior, joint or common ownership, including any
right or license, and, do not contain derivative works of any programming or
materials not owned in their entirety by DeltaPoint.
2.17 Third-Party Interests or Marketing Rights in DeltaGraph
Software Programs. All of DeltaPoint's standard form customer contracts
constitute only end-user agreements, each of which grants the end-user
thereunder solely the non-exclusive right and license to use DeltaGraph and
related user documentation, for internal purposes only. There are no contracts,
agreements, licenses or other commitments or arrangements in effect with respect
to the development, marketing, distribution, licensing, or promotion of
DeltaGraph, the Technical Documentation, or DeltaPoint's Intellectual Property
with any independent salesperson, distributor, sublicensor, or other remarketer
or sales organization, except for Contracts identified in Schedules 2.12, 2.13
and 2.16.
2.18 No Virus Warranties. DeltaPoint represents and warrants
that DeltaGraph, as delivered to SPSS, shall be free of any passwords, keys,
security devices or trap doors, and any computer instructions (including, but
not limited to, computer instructions commonly referred to as Trojan Horses,
anomalies, worms, self-destruct mechanisms, or time/logic bombs) which are
intended to interfere with or frustrate the use of the software products, any
portion thereof, or other software or computer hardware, whether or not
currently in effect with respect to any copy of DeltaPoint's software products.
2.19 Purchased Software; Physical Media. The software
purchased as part of the Assets, other than that currently under development
(the "Purchased Software"), will operate in all material respects in accordance
with the Technical Documentation. Each copy of
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Purchased Software delivered by DeltaPoint is and, at the time of the Closing
Date, will be free from physical defects in the media that tangibly embodies the
copy.
2.20 Government Contracts. DeltaPoint has not entered into any
contracts with respect to the Assets with any independent or executive agency,
division, subdivision, audit group or procuring office of the federal
government, including any prime contractor of the federal government and any
higher level subcontractor of a prime contractor of the federal government, and
including any employees or agents thereof, in each case acting in such capacity.
2.21 Product Warranties and Liabilities. DeltaPoint has not
given or made any express or implied warranties to third parties with respect to
any Assets licensed or sold or services performed by it related thereto, except
for the limited warranties stated in DeltaPoint's standard form customer
contracts, in the forms attached to Schedule 2.13, with modifications that, in
the aggregate, would not have a material adverse effect on the Assets.
DeltaPoint does not have any knowledge of any fact or of the occurrence of any
event forming the basis of any present or future claim against DeltaPoint
relating to the Assets whether or not fully covered by insurance, for any
material liability on account of products liability or on account of any express
or implied product warranty, except for warranty obligations and product returns
in the ordinary course of business.
2.22 Insurance. Schedule 2.22 hereto is a description of all
insurance policies held by DeltaPoint concerning its DeltaGraph business,
operations and properties. All these policies are in the respective face amounts
set forth in Schedule 2.22, and such insurance is adequate and appropriate in
accordance with sound business practices. Each of the insurance policies
referred to in Schedule 2.22 is in force and the premiums with respect thereto
are fully paid through the dates indicated thereon.
2.23 Litigation and Administrative Proceedings. Except as set
forth in Schedule 2.23 hereto, there is no claim, action, suit, proceeding or
investigation in any court or before any governmental or regulatory authority
pending or, to DeltaPoint's knowledge, threatened against or affecting
DeltaPoint relating to the Assets or which seeks to enjoin or obtain damages in
respect of the transactions contemplated hereby. DeltaPoint does not know of any
basis for any such claim, action, suit, proceeding or investigation. No claim,
action, suit, proceeding or investigation set forth in Schedule 2.23 could, if
adversely decided, have a material adverse effect on the Assets.
2.24 Tax Matters. None of the Assets (i) is tax-exempt use
property within the meaning of Section 168(h) of the Code, (ii) directly or
indirectly secures any debt the interest on which is tax exempt under Section
103(a) of the Code, (iii) is required to be treated as property owned by another
under Section 168(f) of the Code, or (iv) is a United States Real Property
Interest within the meaning of Section 897 of the Code. The Assets described in
Sections 1.1(a)(ii), 1.1(a)(v) and 1.1(a)(vii) hereof are, and at all times
during and since their manufacture have been, located solely in California, and,
notwithstanding the provisions of
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Section 1.2 hereof, the delivery of the Assets (except for certain Inventory) to
SPSS in accordance with the terms hereof shall take place solely in California.
2.25 Environmental and Safety Matters. DeltaPoint has, with
respect to the Assets, complied in all material respects with all laws relating
to environmental matters ("Environmental Laws") including, but not limited to:
air pollution; water pollution; noise control; on-site or off-site solid waste
storage, treatment, discharge, disposal or recovery; toxic and hazardous
chemical reporting; or employee safety and hazardous material transportation
training, information, reporting, and warning provisions. No notice of violation
of or potential liability resulting from any such Environmental Laws, or orders
with respect thereto, has been received, nor is any such notice pending or to
the best of its knowledge threatened.
2.26 Licenses and Permits. DeltaPoint has all governmental
licenses and permits and other governmental authorizations and approvals
required for the conduct of its businesses as presently conducted with respect
to the Assets ("Permits"). Schedule 2.26 hereto includes a list of all material
Permits.
2.27 Relations With Suppliers and Customers. DeltaPoint is not
required to provide any bonding or other financial security arrangements in
connection with any transaction with any customer or supplier with respect to
the Assets. Except as set forth on Schedule 2.27, DeltaPoint has not received
any notice that any customer or supplier of DeltaPoint will not do business with
SPSS after the consummation of the transactions contemplated hereby.
2.28 Interests in Competitors, Suppliers and Customers. Except
as set forth on Schedule 2.28, no officer, director of DeltaPoint or outside
director, each to the best of DeltaPoint's knowledge, or any entity controlled
by or under common control with DeltaPoint has any ownership interest in any
competitor, supplier or customer of DeltaPoint or any property used in the
operation of the business of DeltaPoint, as same may relate to the Assets.
2.29 Brokers and Finders. Except as described on Schedule
2.29, DeltaPoint has not employed any broker, finder or investment banker, or
incurred any liability for any brokerage fees, commissions or finders' fees in
connection with this Agreement or the transactions contemplated hereby.
2.30 Title to Assets; No Liens. Except as set forth on
Schedule 2.9(a) and (b), DeltaPoint has good and marketable title to, and is in
possession of or has control over, all of the Assets, free and clear of all
liabilities, liens, security interests, mortgages, pledges, claims, judgments,
exceptions, charges and encumbrances and obligations of every kind and nature.
Except as indicated in Schedule 2.9(a) and (b), there are no defects or other
conditions with respect to the Assets which would necessitate repairs,
reconditioning or replacement thereof; provided, however, that DeltaPoint makes
no representation or warranty that DeltaGraph is not and will not be or become
obsolete.
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2.31 Necessary Property. There exists no condition,
restriction or reservation affecting the title to or utility of the Assets or
the Assumed Liabilities which would prevent SPSS in any material respect from
utilizing the Assets or the Assumed Liabilities, or any part thereof, to the
same full extent that DeltaPoint might continue to do so if the sale and
transfer contemplated hereby did not occur; provided, however, that DeltaPoint
makes no representation or warranty with respect to matters which are unique to
SPSS and which are unrelated to the title or utility of the Assets or Assumed
Liabilities, but which may affect SPSS's utilization thereof.
2.32 Current Products. All of DeltaPoint's software products
and user documentation relating to the Assets and currently offered for license
or maintained or supported by DeltaPoint (collectively, "Current Products") are
listed on Schedule 2.32 hereto. All of the Current Products are included in the
Assets and, effective upon consummation of the Closing, SPSS will obtain and
hold the complete and exclusive right, title and interest in and to all of the
Current Products.
2.33 Full Disclosure. To the best of DeltaPoint's knowledge,
no representation or warranty to SPSS contained in this Agreement, and no
statement contained in the disclosure schedules or any certificate delivered by
DeltaPoint to SPSS pursuant to the provisions hereof, contains any untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements herein or therein not misleading.
2.34 Bulk Sales. The Assets constitute less than fifty
percent (50%) of the total equipment and inventory of DeltaPoint, as
contemplated by the California Uniform Commercial Code-Bulk Sales.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SPSS
As of the date hereof and as of the Closing Date, SPSS represents and
warrants to DeltaPoint as follows:
3.1 Organization and Qualification. SPSS is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has the corporate power and authority to enter into this Agreement
and to consummate the transactions contemplated hereby.
3.2 Authority. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been duly and
validly authorized by SPSS, and no other corporate proceedings on the part of
SPSS are necessary to authorize this Agreement or to consummate the transactions
contemplated hereby. This Agreement has been duly and validly executed and
delivered by SPSS and constitutes legal, valid and binding agreement of SPSS.
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3.3 Consents and Approvals. Except as set forth in Schedule
3.3 hereto, there is no authorization, consent, order or approval of, or notice
to or filing with, any individual or entity required to be obtained or given in
order for SPSS to consummate the transactions contemplated hereby and fully
perform its obligations hereunder, excluding, however, any authorization,
consent, order, approval or filing which DeltaPoint is required to obtain or
give.
3.4 Absence of Conflicts. The execution, delivery and
performance by SPSS of this Agreement and the consummation by SPSS of the
transactions contemplated hereby will not, with or without the giving of notice
or the lapse of time, or both, (i) violate any provision of law, statute, rule
or regulation to which SPSS is subject, (ii) violate any order, judgment or
decree applicable to SPSS or (iii) conflict with, or result in a breach or
default under, any term or condition of the Certificate of Incorporation or
By-Laws of SPSS or any agreement or other instrument to which SPSS is a party or
by which SPSS is bound.
3.5 Litigation and Administrative Proceedings. There is no
claim, action, suit, proceeding or investigation in any court or before any
governmental or regulatory authority pending or threatened against or affecting
SPSS which seeks to enjoin or obtain damages in respect of the transactions
contemplated hereby.
3.6 Brokers and Finders. SPSS has not employed any broker,
finder or investment banker, or incurred any liability for any brokerage fees,
commissions or finders' fees in connection with this Agreement or the
transactions contemplated by this Agreement.
ARTICLE IV
COVENANTS OF DELTAPOINT
DeltaPoint covenants as follows:
4.1 Tax Matters. Subject to Section 4.8, DeltaPoint will
timely pay or satisfy all liabilities under any federal, state, local or foreign
income, sales, use and other taxes that may be due as a result of the sale of
the Assets hereunder or which otherwise relate to the Assets for any period of
time prior to the Closing Date.
4.2 Post-Closing Access to Information. For a period of seven
years after the Closing, DeltaPoint shall not dispose of any books, records,
documents or information relating in whole or part to the Assets or otherwise to
the DeltaGraph business of DeltaPoint without first giving notice to SPSS and
permitting SPSS to copy, at its own expense, those portions of such books and
records which relate to the Assets or otherwise to the DeltaGraph business as
SPSS may reasonably select. During such seven-year period, DeltaPoint shall
permit SPSS to examine and make copies, at SPSS's expense, of such books,
records, documents or information for any reasonable purpose, including but not
limited to any litigation commenced
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against SPSS or any affiliate of SPSS or the preparation of income or other tax
returns or in connection with any administrative or regulatory proceedings or
actions. In addition, DeltaPoint shall make available to SPSS, on a reasonable
basis and as requested from time to time by SPSS, itself and those employees of
DeltaPoint with knowledge of or knowledge relevant to the above-described
matters for the purpose of reasonable consultation and/or testimony in
connection therewith, such services to be performed without additional
compensation from SPSS, except for reimbursement of reasonable out-of-pocket
travel or related expenses.
4.3 Right of Endorsement. Upon the Closing and thereafter,
SPSS shall have the right and authority to endorse, without recourse, the name
of DeltaPoint on any check or any other evidence of indebtedness received by
SPSS and to which it is entitled on account of any receivable or other Asset
transferred by DeltaPoint pursuant hereto, and DeltaPoint shall deliver to SPSS
at the Closing documents sufficient to permit SPSS to deposit such checks or
other evidences of indebtedness in bank accounts in the name of SPSS.
4.4 Accounts Receivable. After the Closing, DeltaPoint shall
promptly remit to SPSS all the proceeds of any checks and other payments for
accounts receivable belonging to SPSS under this Agreement and coming into the
possession of DeltaPoint. DeltaPoint shall use commercially reasonable efforts
to assist SPSS in the collection of DeltaPoint's unpaid accounts receivable
acquired pursuant to this Agreement and relating solely to its DeltaGraph
business prior to the Closing, and DeltaPoint shall employ telephone calls and
follow-up efforts to collect such accounts; provided, however, that DeltaPoint
shall not be liable for the failure of SPSS to collect any such accounts
receivable after the Effective Date other than pursuant to a breach or violation
by DeltaPoint of its representations, warranties and covenants set forth herein
or its obligations under that certain Interim Management Agreement dated of even
date herewith between the parties hereto. DeltaPoint shall maintain written
records with respect to collection of such accounts and SPSS shall be entitled
to review such records and all information in DeltaPoint's possession respecting
such accounts at reasonable intervals and during DeltaPoint's normal business
hours. DeltaPoint shall also establish appropriate procedures by which payments
received by DeltaPoint on accounts receivables can be identified as for the
account of SPSS or for the account of DeltaPoint. For any payments received by
DeltaPoint on accounts receivable due and owing from a joint customer of SPSS
and DeltaPoint, DeltaPoint shall treat such payments as being made for the
account of, and belonging to, SPSS, if such payment is identified with a SPSS
invoice. If such payment is either not identified with a SPSS invoice or if the
payment is identified with a DeltaPoint invoice, such payment shall remain the
property of DeltaPoint.
4.5 Further Assurances. After the Closing, DeltaPoint shall
from time to time, at the request of SPSS and without further cost or expense to
SPSS, execute and deliver such other documents and take such other actions as
shall be reasonably necessary or appropriate to consummate fully the
transactions contemplated hereby.
4.6 Discontinuance of Use. Upon Closing, DeltaPoint
will discontinue use of the name "DeltaGraph" or any confusingly similar name
except for purposes of collecting
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unpaid accounts receivable related to the Assets and limited and incidental
references to DeltaGraph in its existing sales, press kits, marketing materials
(until the existing supply of such kits and materials is depleted) and its
existing legal documentation, as permitted hereunder. It is understood that
DeltaPoint can continue to use the name "DeltaPoint."
4.7 Consents. DeltaPoint will use all reasonable efforts to
obtain the express written consent of all third parties necessary to assign any
Contracts included in the Assets. If any third party withholds consent or
DeltaPoint receives royalties or payments on account of such Contracts after
Closing, DeltaPoint will hold all such amounts in trust for SPSS and promptly
pay same to SPSS. DeltaPoint will indemnify and hold SPSS harmless from and
against any loss suffered by SPSS as a result of DeltaPoint's failure to obtain
any necessary consent to the assignment of such Contracts.
4.8 Transfer Costs. All California sales or use taxes on the
transfer of the Assets and recording or filing fees necessary to transfer title
to any of the Assets on the Closing Date shall be borne and paid by DeltaPoint.
DeltaPoint is qualified to do business in the states set forth on Schedule 4.8.
4.9 Non-Competition; Confidentiality.
4.9.1 DeltaPoint understands and agrees that
the business of SPSS, among other things, concerns proprietary computer software
programs and related documentation which will include, after the acquisition
contemplated by this Agreement, the proprietary computer software programs and
related documentation constituting a portion of the Assets. DeltaPoint
understands that in the course of its dealings with SPSS, SPSS and/or its
subsidiaries or affiliates may provide DeltaPoint with, or access to, its
software (including, without limitation, source listings therefor), as well as
confidential and/or proprietary prospect and customer lists, data, research,
specifications, memoranda, files, records, plans, concepts, flow charts,
drawings, designs, descriptions, formulations, trade secrets and other
confidential and/or proprietary information and property, including but not
limited to, information regarding SPSS operations, businesses, affairs,
management and market structure (all of the foregoing collectively referred to
as the "Confidential Property"). Confidential Property shall not, however,
include any information which (i) was publicly known and made generally
available in the public domain prior to the time of disclosure by the disclosing
party; (ii) becomes publicly known and made generally available after disclosure
by the disclosing party to the receiving party through no action or inaction of
the receiving party; (iii) is already in the possession of the receiving party
at the time of disclosure by the disclosing party as shown by the receiving
party's files and records immediately prior to the time of disclosures; (iv) is
obtained by the receiving party from a third party without a breach of such
third party's obligations of confidentiality; (v) is independently developed by
the receiving party without use of or reference to the disclosing party's
Confidential Property, as shown by documents and other competent evidence in the
receiving party's possession; or (vi) is required by law to be disclosed by the
receiving party, provided that the receiving party gives the disclosing party
prompt written notice
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of such requirement prior to such disclosure and assistance in obtaining an
order protecting the information from public disclosure.
4.9.2 DeltaPoint will regard and preserve as
confidential and as trade secrets all of the Confidential Property. Except as
may be required by law, any governmental agency or under the Exchange Act,
DeltaPoint will not, directly or indirectly, communicate or divulge to, or use
for the benefit of itself or any other person, firm, association or corporation,
without the prior written consent of SPSS, any Confidential Property. The
Confidential Property shall remain the sole and exclusive property of SPSS, and
upon request by SPSS for any reason whatsoever, DeltaPoint shall promptly return
any and all Confidential Property in its possession or control to SPSS.
4.9.3 DeltaPoint shall have no right, title or
interest of any kind or nature in any of the Confidential Property or any
proceeds therefrom.
4.9.4 DeltaPoint hereby further covenants and
agrees that during the Non-Compete Period (as hereinafter defined) DeltaPoint
will not (a) directly or indirectly (whether through a partnership of which
DeltaPoint is a partner or through any other individual or entity in which
DeltaPoint has any interest, legal or equitable, or otherwise), engage in any
business competitive with the business of SPSS or the statistical charting and
graphing software business being acquired by SPSS pursuant to this Agreement as
in existence or under development on the Closing Date (the "DeltaGraph
Business"), (b) directly or indirectly (whether through a partnership of which
DeltaPoint is a partner or through any other individual or entity in which
DeltaPoint has any interest, legal or equitable, or otherwise) solicit or
otherwise be involved with any customers or clients of SPSS or the DeltaGraph
Business existing on the date of acquisition of the DeltaGraph Business by SPSS
in any transactions which are in competition with the statistical software
business of SPSS or the DeltaGraph Business at any time during the Non-Compete
Period, or (c) directly or indirectly (whether through a partnership of which
DeltaPoint is a partner or through any other individual or entity in which
DeltaPoint has any interest, legal or equitable, or otherwise), assist any
person in the development, programming, servicing, maintenance, manufacture,
sale, licensing, distribution or marketing (including, without limitation,
giving away software) of statistical software and related products in
competition with products of the DeltaGraph Business, SPSS or any of its
affiliates, in each case in the United States of America or any other country in
which SPSS or any of its affiliates is doing business, in each case excluding
passive investment interests of less than five percent (5%) in corporations
whose stock is publicly traded and registered under the Securities Exchange Act
of 1934, as amended. Notwithstanding the foregoing, DeltaPoint shall be deemed
not to be in violation of the foregoing provisions if (i) DeltaPoint acquires a
business that is primarily engaged in a business other than one which competes
with the statistical software business of SPSS or the DeltaGraph business and
(ii) DeltaPoint promptly commences efforts to sell or otherwise dispose of such
competing business.
As used herein, the term "Non-Compete Period" shall mean a
period of three (3) years after the Closing Date.
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4.9.5 During the Non-Compete Period, DeltaPoint
will not directly knowingly employ, solicit for employment, or advise or
recommend to any other person that they employ or solicit for employment, any
employee of SPSS.
DeltaPoint further agrees that the limitations set forth
herein (including, without limitation, any time or territorial limitations) are
reasonable and properly required for the adequate protection of the DeltaGraph
Business and the business of SPSS (and its affiliates). In the event any such
territorial or time limitation is deemed to be unreasonable by a court of
competent jurisdiction, DeltaPoint agrees to the reduction of the territorial or
time limitation to the area or period which such court shall have deemed
reasonable. It is understood and agreed that the covenants made by DeltaPoint
herein relating to confidentiality shall survive the expiration or termination
of this Agreement, and that the covenants made by DeltaPoint herein relating to
non-competition shall survive the Closing of this Agreement.
4.10 Equitable Relief. DeltaPoint understands that a breach by
it of any provision of this Agreement may cause substantial injury to SPSS which
may be irreparable and/or in amounts difficult or impossible to ascertain, and
that in the event DeltaPoint breaches any provision of this Agreement, SPSS
shall have, in addition to all other remedies available in the event of a breach
of this Agreement, the right to injunctive or other equitable relief. Further,
DeltaPoint acknowledges and agrees that the restrictions and commitments set
forth in this Agreement are necessary to protect the legitimate interests of
SPSS and are reasonable in scope, area and time, and that if, despite this
acknowledgment and agreement, at the time of the enforcement of any provision of
this Agreement a court of competent jurisdiction shall hold that the period or
scope of such provision is unreasonable under the circumstances then existing,
the maximum reasonable period or scope under such circumstances shall be
substituted for the period or scope stated in such provision.
ARTICLE V
COVENANTS OF SPSS
SPSS covenants as follows:
5.1 Retention of Records. After the Closing, SPSS will retain
all of DeltaPoint's books and records relating to the Assets which come into
SPSS's possession in accordance with SPSS's policies for retention of its own
books and records. SPSS will provide DeltaPoint access to such books and records
concerning periods prior to the Closing in SPSS' possession upon reasonable
notice, during SPSS's regular business hours and at reasonable intervals.
5.2 Further Assurances. After the Closing, SPSS shall
from time to time, at the request of DeltaPoint and without further cost or
expense to DeltaPoint, execute and
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deliver such other documents and take such other actions as shall be reasonably
necessary or appropriate to consummate fully the transactions contemplated
hereby.
5.3 Post-Closing Access to Information. For a period of seven
years after the Closing, SPSS shall not dispose of any books, records, documents
or information relating in whole or part to the Assets or otherwise to the
DeltaGraph business of SPSS without first giving notice to DeltaPoint and
permitting DeltaPoint to copy, at its own expense, those portions of such books
and records which relate to the Assets or otherwise to the DeltaGraph business
on the Closing Date as DeltaPoint may reasonably select. During such seven-year
period, SPSS shall permit DeltaPoint to examine and make copies, at DeltaPoint's
expense, of such books, records, documents or information for any reasonable
purpose, including but not limited to any litigation commenced against
DeltaPoint or any affiliate of DeltaPoint or the preparation of income or other
tax returns or in connection with any administrative or regulatory proceedings
or actions. In addition, SPSS shall make available to DeltaPoint, on a
reasonable basis and as requested from time to time by DeltaPoint, itself and
those employees of SPSS with knowledge of or knowledge relevant to the
above-described matters for the purpose of reasonable consultation and/or
testimony in connection therewith, such services to be performed without
additional compensation from DeltaPoint, except for reimbursement of reasonable
out-of-pocket travel or related expenses.
ARTICLE VI
MUTUAL COVENANTS
Each of the parties hereto covenants as follows:
6.1 Confidentiality. Except as otherwise required by law or
judicial or administrative proceedings, and except for public announcements
which, based on the advice of counsel, are required by law, each of the parties
agrees not to (i) disclose any proprietary or confidential information of any
other party, or the terms of this Agreement (collectively, the "Confidential
Information"), to any individual or entity (other than its directors, officers,
employees, agents and representatives with a need to know such Confidential
Information in order to consummate the transactions contemplated hereby) or (ii)
use any Confidential Information for any purpose other than consummating the
transactions contemplated hereby and, with respect to SPSS, utilizing the Assets
and discharging the Assumed Liabilities after the Closing.
6.2 Consistent Tax Reporting. The parties agree for tax
purposes to report the transactions contemplated by this Agreement, and to treat
any subsequent related transactions or items, in a manner consistent in all
respects with the terms and provisions of this Agreement. Each party shall
cooperate with the other parties as appropriate for all relevant tax purposes
relating to the transactions contemplated by this Agreement, including the
filing of IRS Form 8594, Asset Acquisition Agreement under Section 1060 of the
Code, as described in Section 1.3.1, above, and report for tax purposes the
transactions provided for in this Agreement, and
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treat any subsequent related transactions or items, in a manner consistent in
all respects with the terms and provisions of this Agreement.
6.3 Cooperation. The parties agree to cooperate for all other
reasonable purposes after the Closing, including with respect to any audit by
any taxing authority of any of the income tax or other tax returns of
DeltaPoint.
ARTICLE VII
CONDITIONS TO OBLIGATIONS OF DELTAPOINT
The obligation of DeltaPoint to consummate the transactions
contemplated hereby is subject to the satisfaction on or prior to the Closing
Date of the following conditions:
7.1 Representations and Warranties. The representations and
warranties of SPSS shall be true and accurate on and as of the Closing Date in
all material respects with the same effect as though such representations and
warranties had been made on and as of such date (except that any representation
or warranty that is qualified as to materiality shall be read as if not so
qualified).
7.2 Performance. SPSS shall have performed in all material
respects all covenants and agreements required by this Agreement to be performed
by it on or before the Closing Date (including, without limitation, the closing
deliveries required by Article IX hereof).
7.3 Filings; Consents; Waiting Periods. All registrations,
filings, applications, notices, transfers, consents, approvals, orders,
qualifications, waivers and other actions listed on Schedule 2.3 hereto shall
have been made or obtained and all applicable waiting periods shall have expired
or been terminated.
7.4 No Injunction. At the Closing Date, there shall be no
injunction, restraining order or decree of any nature of any court or
governmental body in effect which restricts or prohibits the consummation of the
transactions contemplated by this Agreement.
7.5 DeltaGraph Employee Matters. DeltaGraph and SPSS
shall have reached a satisfactory understanding regarding the status of
DeltaGraph Business employees.
7.6 Legal Opinion. DeltaPoint shall have received the
written opinion, dated the Closing Date, of counsel to SPSS, substantially in
the form attached hereto as Exhibit B.
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ARTICLE VIII
CONDITIONS TO OBLIGATIONS OF SPSS
The obligation of SPSS to consummate the transactions
contemplated hereby is subject to the satisfaction on or prior to the Closing
Date of the following conditions:
8.1 Representations and Warranties. The representations and
warranties of DeltaPoint shall be true and accurate on and as of the Closing
Date in all material respects with the same effect as though such
representations and warranties had been made on and as of such date (except that
any representation or warranty that is qualified as to materiality shall be read
as if not so qualified).
8.2 Performance. DeltaPoint shall have performed in all
material respects all covenants and agreements required by this Agreement to be
performed by it on or before the Closing Date (including, without limitation,
the closing deliveries required by Article IX hereof).
8.3 Filings; Consents; Waiting Periods. All registrations,
filings, applications, notices, transfers, consents, approvals, orders,
qualifications, waivers and other actions of any kind listed on Schedule 3.3
hereto or otherwise required of any persons or governmental authorities or
private agencies in connection with the consummation of the transactions
contemplated by, and the performance by DeltaPoint of its obligations under,
this Agreement shall have been made or obtained and all applicable waiting
periods shall have expired or been terminated, in each case upon terms and
conditions reasonably satisfactory to SPSS.
8.4 Bulk Sales Compliance. DeltaPoint shall have taken all
steps necessary to permit SPSS to meet the requirements of the California bulk
sales laws, including without limitation providing SPSS with such information as
SPSS shall reasonably request concerning all creditors of DeltaPoint.
8.5 No Litigation. No action, suit or proceeding shall have
been instituted by any person or entity, or threatened by any governmental
agency or body, before a court or governmental body, to restrain or prevent the
consummation of the transactions contemplated by, or the performance by
DeltaPoint of its obligations under, this Agreement or which seeks other relief
with respect to any of such transactions or which could reasonably be expected
to have a materially adverse effect on the DeltaGraph business of DeltaPoint. At
the Closing Date, there shall be no injunction, restraining order or decree of
any nature of any court or governmental agency or body in effect which restrains
or prohibits the consummation of the transactions contemplated by this
Agreement.
8.6 Legal Opinion. SPSS shall have received the
written opinion, dated the Closing Date, of counsel to DeltaPoint, substantially
in the form attached hereto as Exhibit A.
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8.7 Resolutions. DeltaPoint and SPSS shall each deliver to the
other certified resolutions of its respective directors approving and
authorizing the execution of this Agreement and the consummation of the
transactions contemplated hereby.
8.8 Good Standing Certificates. DeltaPoint shall cause to be
delivered to SPSS a good standing certificate from the Secretary of State of the
State of California. SPSS shall deliver to DeltaPoint a good standing
certificate from the Secretary of State of the State of Delaware.
8.9 Lien Searches. DeltaPoint shall deliver to SPSS
UCC lien search results relating to the Assets, in form and substance reasonably
satisfactory to SPSS.
8.10 Lien Terminations. DeltaPoint shall deliver to SPSS UCC-3
termination statements or releases executed by a duly authorized representative
of each of any creditor which has a lien or encumbrance on any of the Assets, in
good form for filing, terminating or releasing all liens and encumbrances on the
Assets.
ARTICLE IX
CLOSING DELIVERIES
The following deliveries shall be made at the Closing:
9.1 Legal Opinion. DeltaPoint shall cause to be delivered the
written legal opinion referred to in Section 8.6 hereof, and SPSS shall cause to
be delivered the written legal opinion referred to in Section 7.6 hereof.
9.2 Intentionally Omitted.
9.3 Closing Certificates. DeltaPoint shall deliver,
or cause to be delivered, to SPSS such closing certificates and documents as
SPSS and its counsel shall reasonably request.
9.4 Instruments of Transfer. DeltaPoint shall deliver the
following bills of sale and other instruments of conveyance, evidencing the
transfer and assignment of the Assets, in a form reasonably satisfactory to SPSS
and its counsel:
(a) Bills of sale for all tangible personal property
included in the Assets;
(b) All certificates, and other material permits, licenses,
approvals or authorizations relating to DeltaGraph issued by any
governmental authority that are assignable; all Assets comprising
intangible property; and all Contracts included in the Assets that are
assignable;
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(c) Documents satisfactory to assign copyrights and
trademarks relating to DeltaGraph owned by DeltaPoint to SPSS, such
documents to be in recordable form;
(d) Such other instruments of conveyance, transfer and
assignment as may be reasonably required to vest in SPSS all of
DeltaPoint's right, title and interest in and to the Assets.
9.5 Charter; Good Standing Certificates. DeltaPoint shall
cause to be delivered to SPSS DeltaPoint's Certificates of Incorporation, as
amended to the Closing Date, certified by the Secretary of State of the State of
California and good standing and tax certificates from the State of California
and each other jurisdiction in which DeltaPoint is required to be qualified.
SPSS shall cause to be delivered to DeltaPoint SPSS's Certificates of
Incorporation, as amended to the Closing Date, certified by the Secretary of
State of the State of Delaware and good standing certificates from the State of
Delaware and each other jurisdiction in which SPSS is required to be qualified.
9.6 Further Assurances. Each party shall deliver, or cause to
be delivered, all other documents required to be delivered at the Closing by the
other party, including without limitation the documents listed as the
responsibility of such party pursuant to the closing memorandum prepared in
connection with the closing of the transactions contemplated by this Agreement,
and shall take all other actions which the other parties may reasonably
determine necessary or appropriate in order to consummate fully the transactions
contemplated hereby.
ARTICLE X
SURVIVAL AND INDEMNIFICATION
10.1 Survival of Representations and Warranties; Covenants.
All representations and warranties contained herein or made in writing by any
party in connection herewith shall survive the Closing for a period of two
years, regardless of any investigation made by or on behalf of any party, except
for the representations and warranties contained in Section 2.30, which shall
survive indefinitely, and the representations and warranties contained in
Sections 2.10, 2.12 and 2.24, or a representation or warranty which shall prove
to be untrue due to the fraud of DeltaPoint, which in each case shall survive
until the expiration of the applicable statute of limitations with respect to
the subject matter thereof. All covenants contained herein shall survive until
performed fully.
10.2 Indemnification by DeltaPoint. DeltaPoint agrees to
indemnify and hold SPSS and its affiliates and the respective officers,
directors, employees, agents and representatives of each of the foregoing
(collectively, the "Representatives") harmless from and against any and all
costs, expenses, losses, claims, damages, penalties, fines, liabilities and
obligations whenever arising or incurred (including, without limitation, amounts
paid in settlement, costs of investigation and attorneys' fees and expenses)
(individually, a "Loss," and
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<PAGE>
collectively, "Losses") arising out of or relating to (i) any breach of any
representation or warranty set forth herein or in any related schedule, or set
forth in any closing certificate or other document entered into or delivered in
connection with this Agreement; (ii) any breach of any covenant or obligation of
DeltaPoint contained in this Agreement, or set forth in any closing certificate
or other document entered into or delivered in connection with this Agreement;
(iii) any liabilities under any applicable bulk sales or transfer law; (iv) any
fraudulent representation or intentional misrepresentation on the part of
DeltaPoint; (v) any intentional or fraudulent breach by DeltaPoint of any
warranty, representation, agreement, covenant or obligation made under this
Agreement; (vi) subject to Section 4.8, any tax liability or obligation asserted
against SPSS with respect to the DeltaGraph business and arising out of or
related to tax periods ending on or prior to the Closing Date; (vii) trademark
infringement on E.O.S.' trademark "DeltaPath" by use of the name "DeltaGraph";
and (viii) the failure of any employee or consultant of DeltaPoint to execute
agreements with DeltaPoint regarding confidentiality or nondisclosure and
assignment of inventions relating to DeltaGraph. Notwithstanding the foregoing,
and except for matters relating to the first sentence of Section 2.30 hereof,
DeltaPoint shall not be obligated to indemnify SPSS in respect of any Loss
unless and until the aggregate amount of all Losses in respect of which
DeltaPoint shall be obligated to indemnify SPSS shall exceed $35,000, in which
event DeltaPoint shall be obligated to indemnify SPSS for the aggregate amount
of all such Losses; provided, however, that DeltaPoint's obligation to so
indemnify SPSS for such Losses shall be reduced by the present value of any net
tax benefits actually received by SPSS in connection with such Loss (less all
costs and expenses incurred by SPSS in connection with receiving such net tax
benefits) and any insurance proceeds actually received by SPSS in connection
with such Loss (less deductibles, premiums paid by SPSS and all costs and
expenses actually incurred by SPSS in collecting such insurance proceeds).
10.3 Indemnification Procedure. (a) An indemnified party under
Section 10.2 of this Agreement shall give prompt written notice to DeltaPoint
(when and to the extent that the indemnified party has actual knowledge thereof)
of any condition, event or occurrence or the commencement of any action, suit or
proceeding for which indemnification may be sought, and DeltaPoint, through
counsel reasonably satisfactory to the indemnified party, shall assume the
defense thereof or other indemnification obligation with respect thereto;
provided, however, that any indemnified party shall be entitled to participate
in any such action, suit or proceeding with counsel of its own choice but at its
own expense; and provided, further, that any indemnified party shall be entitled
to participate in any such action, suit or proceeding with counsel of its own
choice at the expense of DeltaPoint, if, under applicable canons of ethics,
joint representation of DeltaPoint and SPSS presents a conflict of interest. In
any event, if DeltaPoint fails to assume the defense within a reasonable time,
the indemnified party may assume such defense or other indemnification
obligation and the reasonable fees and expenses of its attorneys will be covered
by the indemnity provided for hereunder. No action, suit or proceeding for which
indemnification may be sought shall be compromised or settled in any manner
which might adversely affect the interests of DeltaPoint without the prior
written consent of DeltaPoint (which shall not be unreasonably withheld);
provided, however, that SPSS may settle any claim or cause of action without
DeltaPoint's consent, but in such case DeltaPoint shall not be required to
reimburse SPSS for its Losses except and to the extent that a court of competent
jurisdiction
- 25 -
<PAGE>
finally determines on appeal that DeltaPoint must indemnify SPSS therefor.
Notwithstanding anything in this Section 10.3 to the contrary, DeltaPoint shall
not, without the prior written consent of the indemnified party, (i) settle or
compromise any action, suit or proceeding or consent to the entry of any
judgment which does not include as an unconditional term thereof the delivery by
the claimant or plaintiff to the indemnified party of a written release from all
liability in respect of such action, suit or proceeding or (ii) settle or
compromise any action, suit or proceeding in any manner that may materially and
adversely affect the indemnified party other than as a result of money damages
or other money payments. DeltaPoint shall pay all expenses, including attorneys'
fees, that may be incurred by any indemnified party in enforcing the indemnity
provided for hereunder.
10.4 Indemnification by SPSS. From and after the Closing Date,
SPSS agrees to indemnify and hold DeltaPoint and its affiliates and the
respective officers, directors, employees, agents and representatives of each of
the foregoing harmless from and against any and all Losses relating to (i) any
misrepresentations, breach of warranty or nonfulfillment of any covenant or
agreement on the part of SPSS contained in this Agreement, including any
Exhibits and Schedules thereto and (ii) SPSS's actions or omissions from and
after the Closing Date with respect to the Assets and the Assumed Liabilities
and SPSS's obligations under the Management Agreement.
10.5 Indemnification Procedure. (a) An indemnified party under
Section 10.4 of this Agreement shall give prompt written notice to SPSS (when
and to the extent that the indemnified party has actual knowledge thereof) of
any condition, event or occurrence or the commencement of any action, suit or
proceeding for which indemnification may be sought, and SPSS, through counsel
reasonably satisfactory to the indemnified party, shall assume the defense
thereof or other indemnification obligation with respect thereto; provided,
however, that any indemnified party shall be entitled to participate in any such
action, suit or proceeding with counsel of its own choice but at its own
expense; and provided, further, that any indemnified party shall be entitled to
participate in any such action, suit or proceeding with counsel of its own
choice at the expense of SPSS, if, under applicable canons of ethics, joint
representation of DeltaPoint and SPSS presents a conflict of interest. In any
event, if SPSS fails to assume the defense within a reasonable time, the
indemnified party may assume such defense or other indemnification obligation
and the reasonable fees and expenses of its attorneys will be covered by the
indemnity provided for in Section 10.4. No action, suit or proceeding for which
indemnification may be sought shall be compromised or settled in any manner
which might adversely affect the interests of SPSS without the prior written
consent of SPSS (which shall not be unreasonably withheld); provided, however,
that DeltaPoint may settle any claim or cause of action without SPSS's consent,
but in such case SPSS shall not be required to reimburse DeltaPoint for its
Losses except and to the extent that a court of competent jurisdiction finally
determines on appeal that SPSS must indemnify DeltaPoint therefor.
Notwithstanding anything in this Section 10.5 to the contrary, SPSS shall not,
without the prior written consent of the indemnified party, (i) settle or
compromise any action, suit or proceeding or consent to the entry of any
judgment which does not include as an unconditional term thereof the delivery by
the claimant or plaintiff to the indemnified party of a written release from all
liability in respect of
- 26 -
<PAGE>
such action, suit or proceeding or (ii) settle or compromise any action, suit or
proceeding in any manner that may materially and adversely affect the
indemnified party other than as a result of money damages or other money
payments. SPSS shall pay all expenses, including attorneys' fees, that may be
incurred by any indemnified party in enforcing the indemnity provided for in
Section 10.4.
10.6 Arbitration. Any dispute as to any claims under this
Agreement shall be settled by arbitration in the City of San Francisco,
California, pursuant to the commercial arbitration rules of the American
Arbitration Association. Arbitration shall be conducted promptly and
expeditiously so as to enable the arbitrators to render an award within 90 days
of the commencement of the arbitration proceedings. Judgment upon any award
rendered in any arbitration proceeding pursuant to this Section 10.6 may be
entered, and any agreement arising out of negotiations or mediation may be
enforced, in any court having jurisdiction thereof. DeltaPoint and SPSS shall
bear (a) with respect to negotiations, their own expenses, (b) with respect to
mediation, an equal share of the expenses and (c) with respect to arbitration,
shall jointly and equally share the expenses of the arbitrator and the
arbitration.
ARTICLE XI
MISCELLANEOUS
11.1 Amendment and Modification. Subject to applicable
law, this Agreement may be amended, modified and supplemented by written
agreement of the parties.
11.2 Waiver of Compliance. Any failure of DeltaPoint, on the
one hand, or SPSS, on the other, to comply with any obligation herein may be
expressly waived hereunder, but such waiver shall not operate as a waiver of, or
estoppel with respect to, any subsequent or other failure. Any waiver must be in
writing and duly executed by the appropriate parties.
11.3 Expenses. Whether or not the transactions contemplated by
this Agreement shall be consummated, the parties hereto agree that all fees and
expenses incurred by DeltaPoint, on the one hand, and SPSS, on the other, in
connection with this Agreement, and the transactions and other actions
contemplated thereby or taken in connection therewith, shall be borne by
DeltaPoint, and by SPSS, respectively, including, without limitation, all fees
of counsel and accountants.
11.4 Notices. All notices, requests, demands and other
communications required or permitted hereunder shall be in writing and shall be
deemed to have been duly given when delivered by hand or by facsimile
transmission (receipt confirmed), one day after being sent by recognized
overnight courier or delivery service, freight prepaid, or five days after being
mailed, certified or registered mail, postage prepaid, return receipt requested:
- 27 -
<PAGE>
(a) If to DeltaPoint to:
DeltaPoint, Inc.
22 Lower Ragsdale
Monterey, California 93940
Attention: Mr. Jeffrey Ait
Telephone: (408) 648-4000
Facsimile: (408) 648-4020
with a copy to:
Wilson, Sonsini, Goodrich & Rosati
650 Page Mill Road
Palo Alto, California 94304-1050
Attention: Jeffrey Saper, Esq.
Kurt Berney, Esq.
Telephone: (415) 493-9300
Facsimile: (415) 493-6811
or to such other person or address as DeltaPoint shall furnish to SPSS in
writing by notice given in the manner set forth in (a) above.
(b) If to SPSS, to:
SPSS Inc.
444 North Michigan Avenue
Chicago, Illinois 60611
Attention: Mr. Edward Hamburg
Telephone: (312) 329-2400
Facsimile: (312) 329-3558
with a copy to:
Ross & Hardies
150 North Michigan Avenue, Suite 2500
Chicago, Illinois 60601
Attention: T. Stephen Dyer, Esq.
Telephone: (312) 558-1000
Facsimile: (312) 750-8600
or to such other person or address as SPSS shall furnish to DeltaPoint in
writing by notice given in the manner set forth above.
- 28 -
<PAGE>
11.5 Assignment. This Agreement and all of the provisions
hereof shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns, but neither this Agreement
nor any of the rights, interests or obligations hereunder shall be assigned by
any of the parties hereto without the prior written consent of the other
parties, except by operation of law and except that SPSS may assign its rights
and obligations under this Agreement to any other entity wholly owned by SPSS.
If such assignment shall be made by SPSS, the assignee shall be entitled to all
of the rights and shall assume all of the obligations of SPSS hereunder,
provided, that SPSS shall remain liable for and guarantee the performance of
such entity's obligations under this Agreement.
11.6 Publicity. Neither DeltaPoint nor SPSS shall make or
issue, or cause to be made or issued, any announcement or written statement
concerning this Agreement or the transactions contemplated hereby for
dissemination to the general public, without the prior written consent of the
other party. This provision shall not apply, however, to any announcement or
written statement required to be made by law, the regulations of any federal or
state governmental agency or any stock exchange, except that the party required
to make such announcement shall, whenever practicable, consult with the other
party concerning the timing and content of such announcement before such
announcement is made.
11.7 Headings. The Article and Section headings contained in
this Agreement are inserted for convenience only and shall not affect in any way
the meaning or interpretation of this Agreement.
11.8 Severability. If any provision of this Agreement shall be
determined to be contrary to law and unenforceable by any court of law, the
remaining provisions shall be severable and enforceable in accordance with their
terms.
11.9 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Illinois, without regard
to its conflicts of law doctrine. The parties hereto expressly submit themselves
to the non-exclusive jurisdictions of the State and Federal Courts of Illinois
for the resolution of any disputes which may arise under or with respect to
compliance with this Agreement.
11.10 Counterparts. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
11.11 Third Parties. Nothing herein shall be construed
to confer upon or give to any party other than the parties hereto and their
successors or permitted assigns, any rights or remedies under or by reason of
this Agreement.
11.12 Post-Closing Deliveries. DeltaPoint shall use best
efforts to obtain and deliver to SPSS those consents referenced on Schedule 2.3
within 15 days after the Closing Date.
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<PAGE>
11.13 Entire Agreement. This Agreement, including the Exhibits
and Schedules hereto, sets forth the entire agreement and understanding of the
parties hereto in respect of the subject matter contained herein, and supersedes
all prior agreements, covenants, representations or warranties, whether oral or
written, by any party hereto.
- 30 -
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed, all as of the day and year first written above.
SPSS INC., a Delaware corporation
By: /s/ Edward Hamburg
Name: Edward Hamburg
Title: Executive Vice President
DELTAPOINT, INC., a California corporation
By: /s/ Jeffrey F. Ait
Name: Jeffrey F. Ait
Title: Chief Executive Officer
- 31 -
<PAGE>
TABLE OF CONTENTS
ARTICLE I TERMS OF PURCHASE AND SALE......................................1
1.1 Purchase and Sale...............................................1
1.2 Time and Place of Closing.......................................3
1.3 Purchase Price..................................................3
1.3.1 Allocation of Purchase Price......................3
1.4 Assumption of Liabilities and Obligations.......................4
1.5 Liabilities Not Assumed.........................................5
1.6 Taxes...........................................................5
ARTICLE II REPRESENTATIONS AND WARRANTIES OF
DELTAPOINT .....................................................5
2.1 Organization and Qualification..................................5
2.2 Authority.......................................................5
2.3 Consents and Approvals..........................................6
2.4 Absence of Conflicts............................................6
2.5 Financial Statements; Accounts Receivable.......................6
2.6 Absence of Undisclosed Liabilities..............................7
2.7 Current Liabilities/Receivables.................................7
2.8 Absence of Certain Changes or Events............................7
2.9 Real and Personal Property; Inventories.........................8
2.10 Patents, Trademarks, Etc........................................9
2.11 Employees......................................................10
2.12 Source Code....................................................10
2.13 Contracts and Commitments......................................10
2.14 Licenses and Royalties.........................................11
2.15 Adequacy of Documentation......................................11
2.16 Third-Party Components in Software Programs....................11
2.17 Third-Party Interests or Marketing Rights in Software Programs.11
2.18 No Virus Warranties............................................12
2.19 Purchased Software; Performance; Physical Media................12
2.20 Government Contracts...........................................12
2.21 Product Warranties and Liabilities.............................13
2.22 Insurance......................................................13
2.23 Litigation and Administrative Proceedings......................13
2.24 Tax Matters....................................................14
2.24.1 Tax Returns......................................14
2.24.2 Examinations, Etc................................14
2.24.3 All Taxes Paid or Reserved.......................14
2.24.4 Withholding......................................14
2.24.5 Asset Attributes.................................15
2.25 Compliance with Laws...........................................15
2.26 Environmental and Safety Matters...............................15
- i -
<PAGE>
2.27 Employee Benefits..............................................15
2.28 Licenses and Permits...........................................18
2.29 Relations With Suppliers and Customers.........................18
2.30 Interests in Competitors, Suppliers and
Customers......................................................18
2.31 Discrimination; Occupational Safety; Labor.....................18
2.32 Related Transactions...........................................19
2.33 Brokers and Finders............................................19
2.34 Questionable Payments..........................................19
2.35 Title to Assets; No Liens......................................19
2.36 Necessary Property.............................................19
2.37 Current Products...............................................20
2.38 Full Disclosure................................................20
2.39 Effect of Certificates.........................................20
ARTICLE III REPRESENTATIONS AND WARRANTIES OF SPSS.........................20
3.1 Organization and Qualification. ...............................20
3.2 Authority......................................................21
3.3 Consents and Approvals.........................................21
3.4 Absence of Conflicts...........................................21
3.5 Litigation and Administrative Proceedings. ...................21
3.6 Brokers and Finders............................................21
ARTICLE IV COVENANTS OF DELTAPOINT AND THE SHAREHOLDER....................21
4.1 Tax Matters....................................................22
4.2 Post-Closing Access to Information.............................22
4.3 Right of Endorsement...........................................22
4.4 Accounts Receivable............................................22
4.5 Change of Name.................................................22
4.6 Further Assurances.............................................23
ARTICLE V COVENANTS OF SPSS..............................................23
5.1 Retention of Records...........................................23
5.2 Further Assurances.............................................23
5.3 Change of Name of DELTAPOINT...................................23
ARTICLE VI MUTUAL COVENANTS...............................................23
6.1 Confidentiality................................................23
6.2 Consistent Tax Reporting.......................................24
6.3 Cooperation....................................................24
ARTICLE VII CONDITIONS TO OBLIGATIONS OF DELTAPOINT........................24
- ii -
<PAGE>
7.1 Representations and Warranties.................................24
7.2 Performance....................................................24
7.3 Filings; Consents; Waiting Periods............................ 24
7.4 No Injunction..................................................25
ARTICLE VIII CONDITIONS TO OBLIGATIONS OF SPSS..............................25
8.1 Representations and Warranties.................................25
8.2 Performance....................................................25
8.3 Filings; Consents; Waiting Periods.............................25
8.4 Bulk Sales Compliance..........................................25
8.5 No Litigation..................................................25
8.6 Non-Competition Agreement......................................26
8.7 Release of Obligations.........................................26
8.8 Legal Opinion..................................................26
8.9 Due Diligence Investigation....................................26
ARTICLE IX CLOSING DELIVERIES.............................................26
9.1 Legal Opinion..................................................26
9.2 Consents.......................................................26
9.3 Closing Certificates...........................................26
9.4 Instruments of Transfer........................................27
9.5 Charter; Good Standing Certificates............................27
9.6 Agreement......................................................27
9.7 Further Assurances.............................................27
ARTICLE X SURVIVAL AND INDEMNIFICATION...................................28
10.1 Survival of Representations and Warranties; Covenants..........28
10.2 Indemnification by DeltaPoint and the Shareholder..............28
10.3 Undisclosed Liabilities........................................29
10.4 Indemnification Procedure......................................29
10.5 Indemnification by SPSS........................................30
10.6 Indemnification Procedure......................................30
10.7 Arbitration....................................................31
ARTICLE XI MISCELLANEOUS..................................................32
11.1 Amendment and Modification.....................................32
11.2 Waiver of Compliance...........................................32
11.3 Expenses.......................................................32
11.4 Notices........................................................32
11.5 Assignment.....................................................33
11.6 Publicity......................................................33
11.7 Headings.......................................................33
11.8 Severability...................................................34
- iii -
<PAGE>
11.9 Governing Law..................................................34
11.10 Counterparts...................................................34
11.11 Third Parties..................................................34
11.12 Entire Agreement...............................................34
- iv -
<PAGE>
SCHEDULE 1.1(a)
DeltaGraph Inventory and Stock in Trade
<PAGE>
SCHEDULE 1.4
Assumed Liabilities
<PAGE>
SCHEDULE 2.3
Consents and Approvals Required for DeltaPoint
<PAGE>
SCHEDULE 2.5
DeltaPoint Financial Information Relating to DeltaGraph
Inventory as of 4/30/97 [to be updated as of 5/31/97]
Monthly sales revenues (dollars and units) for 1/95 through 4/97
Product line profit and loss statements for the first quarter of 1995 through
the first quarter of 1997
Sales return reserve analysis at 12/31/96
Product line budget for 1997
<PAGE>
SCHEDULE 2.5(a)
Items Excluded from Financial Information
<PAGE>
SCHEDULE 2.8
Changes or Events
<PAGE>
SCHEDULE 2.9(a)
Pledges, Liens, Leases, Encumbrances, Conditional Sales Contracts
and Other Security Arrangements Affecting the Assets
<PAGE>
SCHEDULE 2.9(b)
DeltaPoint's Inventories of DeltaGraph
<PAGE>
SCHEDULE 2.10
Registered Intellectual Property
<PAGE>
SCHEDULE 2.12
Third Party Rights in Source Code
<PAGE>
SCHEDULE 2.13
Product Warranties and Standard Form Customer Contracts
<PAGE>
SCHEDULE 2.16
Licenses from Third Parties
<PAGE>
SCHEDULE 2.22
Insurance Policies
<PAGE>
SCHEDULE 2.23
Litigation and Administrative Proceedings
<PAGE>
SCHEDULE 2.26
Licenses and Permits
<PAGE>
SCHEDULE 2.27
Notices from Customers and/or Suppliers of DeltaPoint
<PAGE>
SCHEDULE 2.28
Interests in Competitors, Suppliers and Customers
<PAGE>
SCHEDULE 2.29
Brokers and Finders
<PAGE>
SCHEDULE 2.32
Current Products
<PAGE>
SCHEDULE 3.3
Consents and Approvals Required for SPSS
None
<PAGE>
SCHEDULE 4.8
States in Which DeltaPoint is Qualified to Do Business
<PAGE>
EXHIBIT A
Form of DeltaPoint Counsel Opinion
<PAGE>
EXHIBIT B
Form of SPSS Counsel Opinion
Exhibit 15. 1
Acknowledgment of Independent
Certified Public Accountants
Regarding Independent Auditors' Review Report
The Board of Directors
SPSS Inc.:
With respect to the registration statements on Form S-8 of SPSS Inc., we
acknowledge our awareness of the use therein of our report dated July 29, 1997
related to our review of interim financial information.
Pursuant to Rule 436(c) under the Securities Act of 1933, such report is not
considered part of a registration statement prepared or certified by an account
or a report prepared or certified by an accountant within the meaning of
sections 7 and 11 of the Act.
/s/ KPMG Peat Marwick LLP
Chicago, Illinois
August 14, 1997
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM
SPSS INC. AND SUBSIDIARIES CONSOLIDATED BALANCE SHEET AT JUNE 30,
1997 AND CONSOLIDATED STATEMENT OF INCOME FOR THE THREE AND SIX
MONTHS ENDED JUNE 30, 1997 AND IS QUALIFIED IN ITS ENTIRETY BY
REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<CIK> 0000869570
<NAME> SPSS INC.
<S> <C> <C>
<PERIOD-TYPE> 3-MOS 12-MOS
<FISCAL-YEAR-END> DEC-31-1997 DEC-31-1997
<PERIOD-END> JUN-30-1997 DEC-31-1997
<CASH> 0 7,698
<SECURITIES> 0 0
<RECEIVABLES> 0 21,402
<ALLOWANCES> 0 973
<INVENTORY> 0 2,035
<CURRENT-ASSETS> 0 33,505
<PP&E> 0 19,261
<DEPRECIATION> 0 13,145
<TOTAL-ASSETS> 0 53,177
<CURRENT-LIABILITIES> 0 20,631
<BONDS> 0 0
0 0
0 0
<COMMON> 0 78
<OTHER-SE> 0 30,223
<TOTAL-LIABILITY-AND-EQUITY> 0 53,177
<SALES> 22,571 44,765
<TOTAL-REVENUES> 22,571 44,765
<CGS> 2,354 4,607
<TOTAL-COSTS> 2,354 4,607
<OTHER-EXPENSES> 17,809 34,114
<LOSS-PROVISION> 26 36
<INTEREST-EXPENSE> 7 15
<INCOME-PRETAX> 2,559 6,300
<INCOME-TAX> 878 2,113
<INCOME-CONTINUING> 1,681 4,187
<DISCONTINUED> 0 0
<EXTRAORDINARY> 0 0
<CHANGES> 0 0
<NET-INCOME> 1,681 4,187
<EPS-PRIMARY> 0.20 0.49
<EPS-DILUTED> 0.20 0.49
</TABLE>
