SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): December 29, 1999
COMPUTRON SOFTWARE, INC.
........................................................
(Exact name of registrant as specified in its charter)
Delaware 1-13591 13-2966911
........................... ....................... ............................
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
301 Route 17 North
Rutherford, New Jersey 07070
........................... ....................... ............................
(Address of principal executive offices) (Zip Code)
(201) 935-3400
Registrant's telephone number, including area code .....................
N/A
..............................................................
(Former name or former address, if changed since last report)
<PAGE>
Item 2. Acquisition or Disposition of Assets
On December 29, 1999, Registrant sold its entire interest in its wholly-owned
French subsidiary, Computron Software, S.A., to ADONIX, a French company with no
material relationship to Registrant, any affiliate of Registrant or any director
or officer (or associate thereof) of Registrant. Pursuant to the Share Purchase
Agreement, a copy of which is attached as Exhibit 2.1, Registrant received 1
French Franc for the shares of Computron Software, S.A. Further, Registrant was
required to fund the working capital deficiency of Computron Software, S.A. in
the amount of approximately US $1.5 million prior to December 29, 1999. The
Share Purchase Agreement obligates Registrant to pay an additional US $500,000
to Computron Software, S.A. on or prior to October 31, 2000.
Item 7. Financial Statements and Exhibits.
(b) Pro forma financial information
Unaudited Pro Forma Condensed Consolidated Balance Sheet as of September 30,
1999.
Unaudited Pro Forma Condensed Consolidated Statements of Operations for the year
ended December 31, 1998 and the nine month period ended September 30, 1999.
Notes to Unaudited Pro Forma Condensed Consolidated Financial Statements.
(c) Exhibits
2.1 Share Purchase Agreement, dated December 23, 1999, between
Registrant and ADONIX relating to the sale of all of the
shares of Computron Software, S.A. (English translation)
99.1 Press Release by Registrant, dated January 12, 2000,
announcing its sale of Computron Software, S.A.
<PAGE>
Computron Software, Inc.
UNAUDITED PRO FORMA CONDENSED CONSOLIDATED
FINANCIAL STATEMENTS
The following unaudited pro forma condensed consolidated financial statements
(the "Pro Forma Financial Statements") are based on the historical consolidated
financial statements of Computron Software, Inc. (the "Company").
The unaudited pro forma condensed consolidated balance sheet gives effect to the
disposition, described in Item 2, as if it was consummated on September 30,
1999. The unaudited pro forma condensed consolidated statements of operations
give effect to the disposition as if it was consummated as of the beginning of
the respective periods presented. The pro forma adjustments are more fully
described in the accompanying notes.
The Pro Forma Financial Statements are presented for informational purposes only
and do not purport to be indicative of the results of operations that actually
would have been achieved had the disposition been consummated on the date or for
the periods indicated and do not purport to be indicative of the financial
position or results of operations as of any future date or for any future
period. The Pro Forma Financial Statements should be read in connection with the
Company's Annual Report on Form 10-K for the year ended December 31, 1998, the
Consolidated Financial Statements of the Company and the related notes thereto
and the Company's Quarterly Report on Form 10-Q for the three and nine months
ended September 30, 1999.
<PAGE>
<TABLE>
COMPUTRON SOFTWARE, INC.
Pro Forma Condensed Consolidated Balance Sheet
September 30, 1999
(Unaudited)
(In thousands)
<CAPTION>
Pro Forma
As Filed in 10-Q Adjustments (a) PRO FORMA
-------------------------------------------------
<S> <C> <C> <C>
Assets
Current assets:
Cash and cash equivalents $ 1,505 $ 0 $ 1,505
Restricted cash 299 0 299
Accounts receivable, net 10,354 (315) 10,039
Prepaid expenses and other current assets 1,607 (387) 1,220
----------- ---------- --------
Total current assets 13,765 (702) 13,063
----------- ---------- --------
Equipment and leasehold improvements:
Computer and office equipment 11,779 (186) 11,593
Furniture and fixtures 1,312 (111) 1,201
Leasehold improvements 1,085 0 1,085
----------- ---------- --------
14,176 (297) 13,879
Less: accumulated depreciation and amortization 11,848 146 11,702
----------- ---------- --------
2,328 (151) 2,177
Capitalized software development costs, net 1,654 0 1,654
Other assets 633 (486) 147
----------- ---------- --------
$ 18,380 $ (1,339) $ 17,041
=========== ========== ========
Liabilities and Stockholders' Deficit
Current liabilities:
Current portion of long-term debt and
capital leases $ 1,670 $ (2) $ 1,668
Short term borrowings 1,304 500 1,804
Accounts payable 4,065 (604) 3,461
Accrued expenses 7,459 (1,095) 6,364
Deferred revenue 8,401 (147) 8,254
----------- ---------- --------
Total current liabilities 22,899 (1,348) 21,551
----------- ---------- --------
Long-term debt and capital leases, net of current 977 1,000 1,977
Other liabilities 0 500 500
Stockholders' deficit:
Common stock 239 0 239
Additional paid-in capital 70,122 0 70,122
Accumulated deficit (75,224) (2,101) (77,325)
Accumulated other comprehensive loss (633) 610 (23)
----------- ---------- --------
Total stockholders' deficit (5,496) (1,491) (6,987)
----------- ---------- --------
$ 18,380 $ (1,339) $ 17,041
=========== ========== ========
(See accompanying notes to Unaudited Pro Forma Condensed Consolidated Financial Statements.)
</TABLE>
<PAGE>
<TABLE>
COMPUTRON SOFTWARE, INC.
Pro Forma Condensed Consolidated Statements of Operations
For the Nine Months Ended September 30, 1998
(Unaudited)
(In thousands, except per share data)
<CAPTION>
Pro Forma
As Filed in 10-Q Adjustments (b) PRO FORMA
-------------------------------------------------
<S> <C> <C> <C>
Revenues:
License Fees $ 7,009 $ 59 $ 6,950
Services 36,390 2,905 33,485
------------ ------------ --------
Total revenues 43,399 2,964 40,435
------------ ------------ --------
Operating Expenses:
Cost of license fees 1,526 0 1,526
Cost of services 19,354 2,207 17,147
Sales and marketing 8,920 774 8,146
Research and development 5,915 30 5,885
General and administrative 10,191 2,162 8,029
------------ ------------ --------
Total operating expenses 45,906 5,173 40,733
------------ ------------ --------
Operating loss (2,507) (2,209) (298)
------------ ------------ --------
Other expense, net (658) (16) (642)
------------ ------------ --------
Net Loss $ (3,165) $ (2,225) $ (940)
=========== ============ =======
Basic and diluted net loss
per common share $ (0.13) $ (0.04)
=========== =======
Weighted average basic and diluted
common shares outstanding 23,914 23,914
=========== =======
(See accompanying notes to Unaudited Pro Forma Condensed Consolidated Financial Statements.)
</TABLE>
<PAGE>
<TABLE>
COMPUTRON SOFTWARE, INC.
Pro Forma Condensed Consolidated Statements of Operations
For the Year Ended December 31, 1998
(Unaudited)
(In thousands, except per share data)
Pro Forma
As Filed in 10-K Adjustments (b) PRO FORMA
-------------------------------------------------
<S> <C> <C> <C>
Revenues:
License Fees $ 15,273 $ 536 $ 14,737
Services 48,248 5,403 42,845
------------ ------------ --------
Total revenues 63,521 5,939 57,582
------------ ------------ --------
Operating Expenses:
Cost of license fees 3,824 0 3,824
Cost of services 28,389 4,200 24,189
Sales and marketing 14,970 1,354 13,616
Research and development 10,568 309 10,259
General and administrative 13,586 2,684 10,902
Restructuring costs 1,025 731 294
------------ ------------ --------
Total operating expenses 72,362 9,278 63,084
------------ ------------ --------
Operating loss (8,841) (3,339) (5,502)
------------ ------------ --------
Other expense, net (190) (13) (177)
------------ ------------ --------
Loss before income tax provision (9,031) (3,352) (5,679)
Income tax provision 12 12 0
------------ ------------ --------
Net Loss $ (9,043) $ (3,364) $(5,679)
============ ============ =======
Basic and diluted net loss
per common share $ (0.38) $ (0.24)
============ =======
Weighted average basic and diluted
common shares outstanding 23,963 23,963
============ =======
(See accompanying notes to Unaudited Pro Forma Condensed Consolidated Financial Statements.)
</TABLE>
<PAGE>
Computron Software, Inc.
NOTES TO UNAUDITED PRO FORMA CONDENSED
CONSOLIDATED FINANCIAL STATEMENTS
Pro Forma Condensed Consolidated Balance Sheet Adjustments:
(a) Adjustments to reflect the elimination of the net assets of Computron
Software, S.A. and to reflect the $500,000 payment due to Computron
Software, S.A. on or before October 31, 2000 (reflected as other
liabilities), $1.5 million incurred to restore working capital
deficiencies in Computron Software, S.A. (comprised of $1 million in new
long-term debt and $500,000 in short term borrowings), approximately
$600,000 in estimated costs resulting directly from the sale (reflected in
accrued expenses), and the resulting loss on the sale of approximately $2
million.
Pro Forma Condensed Consolidated Statements of Operations Adjustments:
The pro forma condensed consolidated statements of operations do not include any
impact of the loss on the sale. The pro forma condensed statements of operations
also do not show the additional interest expense that would have been incurred
in connection with the new long-term debt or short term borrowings because such
interest expense would have been offset by approximately the same amount in
interest expense savings that would have been realized since the Company would
not have had to incur additional debt to fund the operating losses of Computron
Software, S.A. during those periods.
(b) Adjustments to eliminate the results of operations of Computron Software,
S.A. from historical financial statement amounts.
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 hereunto duly authorized.
COMPUTRON SOFTWARE, INC.
Date: January 12, 2000 By: /s/ MICHAEL R. JORGENSEN
------------------------
Michael R. Jorgensen
Executive Vice President and Chief
Financial Officer
<PAGE>
EXHIBIT INDEX
2.1 Share Purchase Agreement, dated December 23, 1999, between Registrant and
ADONIX relating to the sale of all of the shares of Computron Software,
S.A. (English translation)
99.1 Press Release by Registrant, dated January 12, 2000, announcing its sale
of Computron Software, S.A
<PAGE>
Acquisition of 100% of the Share Capital
of COMPUTRON SOFTWARE S.A.
by
ADONIX
December 23, 1999
<PAGE>
TABLE OF CONTENTS
Page
1. Definitions............................................................2
1.1. "Business Day"...................................................2
1.2. "Closing"........................................................2
1.3. "Closing Date"...................................................2
1.4. "Closing Date Shares"............................................3
1.5. "Comfort Letter".................................................3
1.6. "Existing Computron Customers"...................................3
1.7. "Existing Shares"................................................3
1.8. "Letter Agreement"...............................................3
1.9. "Purchase Price".................................................3
1.10. "1998 Accounts"..................................................3
1.11. "1999 Interim Accounts"..........................................3
2. Sale and Purchase of the Closing Date Shares...........................3
3. Purchase Price.........................................................4
4. Closing................................................................4
5. Representations and Warranties of the Seller...........................5
5.1. Ownership of the Existing Shares and the Closing Date Shares.....6
5.1.1.Shares.....................................................6
5.1.2.No Other Securities........................................6
5.2. Capacity of the Seller...........................................6
5.3. Affiliate Transactions between the Company and the Seller........7
5.4. Legal Structure of the Company; Company Records..................7
5.5. Ownership of Assets..............................................8
5.6. 1998 Accounts and 1999 Interim Accounts..........................8
5.7. Conduct of the Business Since September 30, 1999.................9
5.8. Contracts and Commitments........................................9
5.9. [Intentionally omitted].........................................10
5.10. Customers and Suppliers.........................................10
5.11. Licenses........................................................11
5.12. Bank Accounts...................................................11
5.13. Insolvency......................................................11
5.14. Litigation......................................................11
5.15. Real Property...................................................12
5.16. Intellectual Property...........................................12
5.17. Year 2000 Compliance............................................13
5.18. Legal Compliance................................................13
5.19. Insurance.......................................................13
i
<PAGE>
5.20. Employment......................................................14
5.21. Tax and Social Charges..........................................14
5.22. Distributions...................................................15
5.23. Brokers.........................................................15
6. Representations and Warranties of the Purchaser.......................15
6.1. Due Incorporation...............................................16
6.2. Capacity of the Purchaser.......................................16
6.3. Due Diligence Investigation.....................................16
6.4. Brokers.........................................................17
7. Conduct of Business Pending Closing...................................17
8. Conditions to Closing.................................................17
8.1. Release of Pledge on the Existing Shares........................17
8.2. Capital Increase................................................18
9. Purchaser's Post-Closing Covenants....................................18
10. Seller's Post-Closing Covenant........................................20
11. Seller's and Purchaser's Post-Closing Covenants.......................20
11.1. Maintenance for Existing Customers of Computron Products........20
12. Indemnification Obligations of the Seller.............................21
12.1. Undertaking of the Seller to Indemnify the Purchaser ...........21
12.2. Limitations to the Seller's Indemnity Obligation................22
12.3. Procedure for Indemnity Claims by the Purchaser.................23
13. Miscellaneous.........................................................26
13.1. No assignment...................................................26
13.2. Notices.........................................................26
13.3. Confidentiality.................................................27
13.4. Entire Agreement; Binding Effect; Modification..................28
13.5. Severability....................................................28
13.6. Governing Law and Jurisdiction..................................28
13.7. Costs...........................................................28
ii
<PAGE>
SHARE PURCHASE AGREEMENT
This AGREEMENT is made this 23 day of December, 1999 between:
A. COMPUTRON SOFTWARE, INC., a corporation incorporated under the
laws of the State of Delaware, United States, with its principal place of
business at 301 Route 17 North, Rutherford, New Jersey 07070, United States,
represented by Michael R. Jorgensen, Executive Vice President and Chief
Financial Officer (hereinafter, the "Seller"); and
B. ADONIX, a French societe anonyme, with its principal place of
business at 4, avenue Laurent Cily, 92606 Asnihres, France, registered with the
Registry of Commerce and Companies of Nanterre under Number RCS 312 700 460,
represented by Emile Hamou, President Directeur General (hereinafter, the
"Purchaser").
WITNESSETH:
WHEREAS:
A. COMPUTRON SOFTWARE S.A. (hereinafter, the "Company") is a French
societe anonyme, with share capital of FF 250,000 divided into 2,500 ordinary
shares (actions ordinaires) with a nominal value of FF 100 per share, having its
registered office at 11, avenue Dubonnet, Immeuble Le Doublon, Batiment B, 92400
Courbevoie, France and registered with the Registry of Commerce and Companies of
Nanterre under Number B662 045 590.
B. The Seller is the registered owner of 2,500 ordinary shares of the
Company (the "Existing Shares").
C. The Seller has executed a letter on March 25, 1999 addressed to
the Board of Directors of the Company, in which it is stated that the Company
will continue to receive the necessary financial support from the Seller in
order for the Company to continue trading as a going
1
<PAGE>
concern through June 30, 2000 and to meet all of its payment obligations to
third parties (the "Comfort Letter").
D. Simultaneously with the execution and delivery of this Agreement,
and as an essential condition to the Seller's entering into this Agreement, the
Purchaser is delivering a letter to the Seller pursuant to which the Purchaser
agrees to assume all of the obligations that the Seller may have under the
Comfort Letter (the "Letter Agreement").
E. It is envisioned that the Seller will subscribe to a capital
increase for a total amount of FF 19,500,000 prior to the Closing, which will
increase the number of shares outstanding to 197,500 (the "Closing Date
Shares").
F. The Seller wishes to sell, and the Purchaser wishes to purchase,
the Closing Date Shares on the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the representations and mutual
covenants hereinafter set forth, the parties hereto agree as follows:
1. Definitions
1.1. "Business Day" shall mean any day on which banks are open for
business in both New York City and Paris.
1.2. "Closing" shall mean the completion of the transactions contemplated
by this Agreement.
1.3. "Closing Date" shall mean the date on which all of the conditions set
forth in Section 8 are satisfied or waived or on such other date as the
Purchaser and the Seller shall agree.
2
<PAGE>
1.4. "Closing Date Shares" shall mean the shares of the Company defined in
the fifth preamble hereof.
1.5. "Comfort Letter" shall mean the letter from the Seller to the Board
of Directors of the Company dated March 25, 1999, as more particularly described
in the third preamble hereof.
1.6. "Existing Computron Customers" shall mean the customers defined in
Section 11.1.3 hereof.
1.7. "Existing Shares" shall mean the shares of the Company defined in the
second preamble hereof.
1.8. "Letter Agreement" shall mean the letter from the Purchaser to the
Seller dated the date hereof, as more particularly described in the fourth
preamble hereof.
1.9. "Purchase Price" shall mean the amount payable in accordance with the
provisions of Section 3 hereof.
1.10. "1998 Accounts" shall mean the audited financial statements of the
Company for the fiscal year ended December 31, 1998.
1.11. "1999 Interim Accounts" shall mean the unaudited interim financial
statements of the Company for the period ended September 30, 1999.
2. Sale and Purchase of the Closing Date Shares
2.1. At Closing, the Seller shall sell and transfer, and the Purchaser
shall purchase and acquire, the Closing Date Shares.
3
<PAGE>
2.2. The Closing Date Shares shall be transferred to the Purchaser with
the right to receive any dividend or other distribution from the Company
declared or made subsequent to the date hereof, without regard to whether such
dividend or distribution relates to profits of the Company earned prior to the
date hereof ("coupon attache"), and the Seller hereby expressly waives the right
to any such dividend or distribution.
3. Purchase Price
The Purchaser shall purchase the Closing Date Shares for the sum of 1
French Franc, payable at Closing.
4. Closing
On the Closing Date:
4.1. The Seller shall deliver or cause to be delivered the following
documents to the Purchaser:
4.1.1. duly executed transfer forms ("Ordres de mouvement")
transferring title to the Closing Date Shares to the Purchaser or to the
Purchaser's designee(s);
4.1.2. a letter from Mr. Richard Buckley resigning from his position
as President of the Company effective as of the Closing Date;
4.1.3. a letter of resignation from each member of the Board of
Directors of the Company, containing a release of the Company of all claims of
any nature whatsoever that such director may have against the Company, effective
as of the Closing Date, in the form of the letter of resignation attached hereto
as Exhibit 4.1.3;
4
<PAGE>
4.1.4. a copy of the resolutions of the Board of Directors of the
Company calling a shareholders' meeting on the Closing Date, to appoint the new
members of the Board of Directors and to authorize an increase in capital,
together with copies of the notices of such meeting sent to the Company's
shareholders of record as of the date of such notices; and
4.1.5. an extract from the minutes of the meeting of the workers
council of the Company evidencing that such council was duly consulted with
respect to the transactions contemplated hereby.
4.2. As required by the Letter Agreement, the Purchaser shall deliver a
certified copy of a letter dated as of the Closing Date, signed by the Purchaser
and countersigned by the Board of Directors of the Company, substantially in the
form of Exhibit 4.2 hereto, advising the Board of Directors of the Company that
the Purchaser has agreed to assume any obligation that the Seller might have
under the Comfort Letter, and releasing the Seller of any such obligation.
4.3. Any and all debt owed to the Seller by the Company, and any
shareholder advance remaining outstanding in the shareholder's current account
in the Company's books after the Seller's subscription to a capital increase as
described in the fifth preamble hereof, will be forgiven by the Seller.
4.4. Any and all debt owed to each of Computron Software Europe Ltd.
(U.K.) and Computron Software (South Africa) or any other Subsidiary of the
Seller by the Company will be forgiven.
5. Representations and Warranties of the Seller
The Seller represents and warrants to the Purchaser that, as of each of
the date of this Agreement and the Closing Date, each of the representations and
warranties made below is accurate and true in all material respects and is not
subject to any restrictions or exceptions, except for the restrictions and
exceptions made in the Schedules attached hereto, whether or not such
restrictions
<PAGE>
or exceptions made in the Schedules are referred to in the text of the
representations and warranties. Matters reflected in any Schedule shall be
deemed to be disclosed for purposes of any other Schedules to this Agreement,
irrespective of whether such matters are expressly cross-referenced.
5.1. Ownership of the Existing Shares and the Closing Date Shares
5.1.1. Shares. The share capital of the Company consists of 2,500
ordinary shares. On the Closing Date, the Closing Date Shares will be freely
negotiable and transferable; they are fully paid up, and on the Closing Date,
they will be free and clear of any right of preemption, option, claim, pledge or
any other encumbrance of any nature whatsoever. Following the transfer of title
to the Closing Date Shares to the Purchaser on the Closing Date, the Purchaser
will have sole and complete ownership thereof, free and clear of all
encumbrances.
5.1.2. No Other Securities. Other than the Existing Shares and, as
of the Closing Date, the Closing Date Shares, the Company is not authorized to
issue, and has not issued, any other securities ("valeurs mobilieres" ). No
agreement or commitment exists which calls for the allotment or issue of, or
accords to any person the right to call for the allotment or issue of, any
shares or other securities of the Company.
5.2. Capacity of the Seller
5.2.1. The Seller has the necessary corporate power and authority to
enter into and perform this Agreement and all other agreements referred to
herein. The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of the Seller.
5.2.2. This Agreement and all other agreements referred to herein
will constitute, when executed, the binding and enforceable agreement of the
Seller.
6
<PAGE>
5.2.3. The execution and the performance by the Seller of its
obligations under this Agreement and all other agreements referred to herein
will not constitute a breach of any provision of the Seller's Certificate of
Incorporation or Bylaws, the Company's Articles of Association ("Statuts"), or
any law, regulation, contract, commitment, order, judgment or decree of any
court or governmental agency applicable to the Seller or to the Company.
5.3. Affiliate Transactions between the Company and the Seller
Except for the contracts and arrangements set forth on Schedule 5.3
which will be terminated on the Closing Date, there is no contract or
understanding of any nature, between the Seller and the Company.
5.4. Legal Structure of the Company; Company Records
5.4.1. The Company is duly incorporated and validly existing as a
societe anonyme (that is, a limited liability company) under the laws of France.
5.4.2. The Company does not act or carry on business in partnership
with any other person and is not a member of any corporate or unincorporated
body or association or any entity whatsoever, the members of which incur joint
liability.
5.4.3. The Company does not have any direct or indirect
participation in a subsidiary, branch, agency or establishment.
5.4.4. The copies of the constitutional documents of the Company
which have been supplied to the Purchaser are true and accurate in all material
respects.
5.4.5. The books of the Company (including its shareholders registry
and minute books of meetings of the board of directors and of the shareholders)
have been properly kept, and are up-to-date.
7
<PAGE>
5.4.6. All documents which were required to be filed by the Company
with the Registry of Commerce and Companies have been so filed.
5.5. Ownership of Assets
Each material asset necessary for the conduct of the business of the
Company is wholly-owned ("en pleine propriete") by the Company and is free from
any material lien, pledge or encumbrance.
5.6. 1998 Accounts and 1999 Interim Accounts
5.6.1. The 1998 Accounts and the 1999 Interim Accounts are attached
hereto as Schedule 5.6. The 1998 Accounts and the 1999 Interim Accounts were
prepared in accordance with accounting principles generally accepted in France,
consistently applied from one period to another. The 1998 Accounts and the 1999
Interim Accounts reflect accurately in all material respects the Company's
financial condition and results of operations for the fiscal year ended December
31, 1998 and the interim period ended September 30, 1999, respectively (but in
the case of the 1999 Interim Accounts, subject to customary year-end
adjustments).
5.6.2. The Purchaser hereby acknowledges that in no event shall the
representations and warranties contained in this Section 5.6 constitute a
warranty as to the contents of the 1998 Accounts or the 1999 Interim Accounts on
a line-by-line basis.
5.6.3. As of September 30, 1999, the Company had net assets of not
less than negative FF 15,170,000, as determined in accordance with the
accounting principles applied in the preparation of the 1998 Accounts and the
1999 Interim Accounts, subject to the impact of the disputes disclosed in
Schedule 5.6.3.
8
<PAGE>
5.7. Conduct of the Business Since September 30, 1999
5.7.1. Since September 30, 1999, the business of the Company has
been run in such manner as to maintain the business, employees and goodwill of
the Company and as is consistent with sound business practices ("gestion en bon
pere de famille").
5.8. Contracts and Commitments
5.8.1. Except as set out in Schedule 5.8.1, the Company is not a
party to any contract or commitment:
(A) that involves expenditures of more than FF 100,000
within a period of twelve months;
(B) that it cannot terminate other than upon 30 days' notice
or that requires, in order for the Company to be able to terminate such contract
or commitment, payment of a penalty or contractual indemnity of more than FF
100,000;
(C) that involves any loan, credit line or overdraft
facility;
(D) that contains provisions permitting any other
contracting party to terminate or modify the conditions of such contract in the
event of a change in control in the ownership of the Company or in the event of
a modification of the composition of the board of directors or management of the
Company;
(E) that contains a post-termination non-competition
provision;
(F) that involves the sale, lease, license, rental or
disclosure of the Company's lists or records, including its customer list; or
9
<PAGE>
(G) that is not made in the ordinary course of business.
5.8.2. Neither the Company nor, to the knowledge of the Company, any
other party, is in material breach or default of its obligations under any of
the contracts or commitments set out in Schedule 5.8.1, and the Company has not
received any claims of breach or default by the Company under any of those
contracts or commitments. The Seller is not aware of any facts or circumstances
suggesting that any such claims could be presented to the Company. All the
contracts and commitments set out in Schedule 5.8.1 are valid and in full force
and effect, and consummation of the transactions contemplated by this Agreement
will not constitute a default under, or require consent or the giving of notice
pursuant to the terms of, any contract or commitment set forth in Schedule
5.8.1.
5.9. [Intentionally omitted]
5.10. Customers and Suppliers
5.10.1. During the twelve months preceding the date hereof, there
has been no substantial change (apart from normal price fluctuations) in the
bases or terms of the Company's contracts with its customers or suppliers, and
the Seller is not aware of any facts or circumstances suggesting that a change
of this kind is expected. To the knowledge of the Seller, there are no disputes
with any customers which could reasonably be expected to have a material adverse
effect on the business of the Company.
5.10.2. Set out in Schedule 5.10.2 hereto is a list of the Company's
principal suppliers. The Company has no obligation to purchase any minimum
quantities from, or to conduct any minimum amount of business with, any
supplier.
10
<PAGE>
5.11. Licenses
All material permits, licenses, consents and authorizations which
are required for or in connection with the operation of the Company's business,
have been obtained and are in full force and effect.
5.12. Bank Accounts
Set forth on Schedule 5.12 are details of all bank accounts of the
Company including, in each case, the name and address of the bank with whom the
account is kept, the number and nature of the account and the names of all
persons authorized to draw thereon.
5.13. Insolvency
5.13.1. The Company has not been the subject of any proceeding
relating to bankruptcy ("redressement judiciaire"), or liquidation
("liquidation judiciaire"); no administrator ("administrateur judiciaire"),
receiver or liquidator has been appointed for the Company, and no petition has
been presented and no meeting has been convened for the purpose of winding up
the Company.
5.13.2. The Company has not commenced negotiations with any of its
creditors with a view to the general readjustment or rescheduling of its
indebtedness or made a general assignment for the benefit of its creditors
("accord amiable" or "reglement amiable").
5.14. Litigation
The Company is not engaged in any material litigation, arbitration
or administrative proceeding, whether as plaintiff, defendant or otherwise and,
to the knowledge of the Seller, no fact or circumstance exists that is likely to
give rise to any such litigation, arbitration or administrative proceeding.
11
<PAGE>
5.15. Real Property
5.15.1. The Company does not own any real property.
5.15.2. The commercial leases entered into by the Company are listed
in Schedule 5.15.2. Such leases are valid and enforceable and subject to the
terms of the French law regulating commercial leases. The Company has access to
all leased premises and all necessary public services without violating any
right of any third party or requiring the granting of any easement by any third
party.
5.16. Intellectual Property
5.16.1. Schedule 5.16 contains a complete list of all Intellectual
Property and Technology used by the Company to carry on the business of the
Company as now conducted. Except as otherwise provided for in this Agreement,
the transactions contemplated by this Agreement will not materially affect the
interest of the Company in such Intellectual Property and Technology and the
Company will continue to enjoy its interests in such Intellectual Property and
Technology without the imposition of any burdensome condition or other
obligation on the Company resulting from the sale of the Closing Date Shares by
Seller. For purposes of this Section 5.16, "Intellectual Property" shall mean
any patent, trademark, service mark, trade name, copyright, license or other
industrial property right (including any application for any of the foregoing),
other than Technology; and "Technology" shall mean any technical information,
know-how and data, whether or not reduced to writing, relating to processes,
computer programs, systems integration, formulations, products, machinery,
equipment and operating procedures.
5.16.2. Nothing has come to the attention of the Seller which causes
it to believe that: (i) the use by the Company of any Intellectual Property or
Technology set forth in Schedule 5.16 may infringe any rights owned or held by
any third party; (ii) there is pending or threatened any claim or litigation
against the Seller or the Company contesting their right to sell or use any such
Intellectual Property or Technology; or (iii) any product, formula, formulation,
license, patent,
12
<PAGE>
trademark, service mark, tradename, process, method, substance, part or other
material presently being sold or used by any third party may infringe any rights
of the Company to such Intellectual Property or Technology.
5.17. Year 2000 Compliance
To the knowledge of the Seller (i) the equipment and systems used by
the Company, and the latest versions of the software programs marketed and sold
by the Company, are Year 2000 compliant in all material aspects, in that they
accurately process, calculate, compare, transmit and receive date/time data
from, into and between the 20th and 21st centuries and the years 1999 and 2000,
and leap year calculations; and (ii) the Company has taken reasonable steps to
inform all of the customers of the Company of potential Year 2000 problems, and
has formally notified the customers who have failed to upgrade their software
programs of potential risks related to the Year 2000, as reflected in the
letters sent by registered mail to such customers attached hereto as Schedule
5.17.
5.18. Legal Compliance
5.18.1. The Company has not received any notice or claim that it has
breached any applicable laws, rules and regulations, including those relating to
the protection of the environment, health safety and labour.
5.18.2. The Company has not received notification that any
investigation is being or has been conducted by any governmental body in respect
of its affairs.
5.19. Insurance
5.19.1. The Company holds and maintains the insurance policies set
forth on Schedule 5.19.1.
13
<PAGE>
5.20. Employment
5.20.1. A list of the names, job functions, seniority and salaries
of every employee of the Company is set out in Schedule 5.20.1.
5.20.2. The collective bargaining agreement ("convention
collective") applicable to the Company is the National Collective Bargaining
Agreement of the Metallurgical Industry.
5.20.3. No contract of employment to which the Company is a party
requires a notice period or a termination indemnity greater than required by the
National Collective Bargaining Agreement of the Metallurgical Industry.
5.20.4. No current employee of the Company has given notice
terminating his or her contract of employment or is under notice of dismissal by
the Company. The Company is current in the payment of all sums due to its
current and former employees.
5.20.5. Since September 30, 1999, no material change has been made
in the compensation or other terms of engagement of any director or employee.
5.20.6. There is no existing, pending or threatened dispute between
the Company and any trade union or other similar organization.
5.21. Tax and Social Charges
5.21.1. The Company has no liability in respect of any taxation or
social charges (whether actual or contingent) that is not appropriately reserved
against in the 1999 Interim Accounts.
14
<PAGE>
5.21.2. The Company has filed or caused to be filed in a timely
manner all tax and social returns required to be filed, and has supplied or
caused to be supplied all information required to be supplied, to any tax and/or
social authority.
5.21.3. The Company is not engaged in any pending tax litigation and
has not received any notice of verification. The Company has not been the
subject of any tax audit.
5.21.4. The Company is duly registered for the purposes of value
added tax and has made, given, obtained and kept complete and up-to-date
records, invoices and other documents appropriate or required for those
purposes, is not in arrears with respect to any payments or returns due and has
not been required to give security in such respect.
5.22. Distributions
The Company has not approved or paid any dividends (whether in cash,
in kind or otherwise) or made any repayment of share capital or issued any share
capital since the capital increase effected on June 3, 1998 (which was followed
by a capital reduction).
5.23. Brokers
Except for the Seller's investment banker, Regent Associates, whose
fees shall be paid by the Seller, no broker, finder or financial advisor is
entitled to any brokerage, finder's or other fee or commission in connection
with the transactions contemplated by this Agreement based upon arrangements
made by or on behalf of the Company or the Seller.
6. Representations and Warranties of the Purchaser
The Purchaser represents and warrants to the Seller that, as of each of
the date of this Agreement and the Closing Date, each of the representations and
warranties made below is accurate and true in all material respects and is not
subject to any restrictions or exceptions.
15
<PAGE>
6.1. Due Incorporation
The Purchaser is a corporation duly incorporated and validly
existing as a societe anonyme under the laws of France.
6.2. Capacity of the Purchaser
6.2.1. The Purchaser has the necessary corporate power and authority
to enter into and perform this Agreement and all other agreements referred to
herein. The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of the Purchaser.
6.2.2. This Agreement and all other agreements referred to herein
will constitute, when executed, the binding and enforceable agreement of the
Purchaser.
6.2.3. The execution and the performance by the Purchaser of its
obligations under this Agreement and all other agreements referred to herein
will not constitute a breach of any provision of the Purchaser's Articles of
Association or other constitutional documents, or of any law, regulation,
contract, commitment, order, judgment or decree of any court or governmental
agency applicable to the Purchaser.
6.3. Due Diligence Investigation
6.3.1. The Purchaser confirms that it has received the documents and
information set forth on Schedule 6.3, which it deems all the documents and
information necessary or useful in order to formulate its offer for the
acquisition of the Closing Date Shares. The Purchaser has no knowledge at this
time of any facts which may give rise to a claim by it for breach of the
representations and warranties given by the Seller in Section 5 hereof.
16
<PAGE>
6.3.2. The Purchaser has knowledge and experience in the sector of
business in which the Company pursues its activity.
6.4. Brokers
No broker, finder or financial advisor is entitled to any brokerage,
finder's or other fee or commission in connection with the transactions
contemplated by this Agreement based upon arrangements made by or on behalf of
the Purchaser.
7. Conduct of Business Pending Closing
7.1. From the date hereof and through the Closing Date, the Seller agrees
to cause the Company to conduct its business in such a manner as to maintain the
business, employees and goodwill of the Company and as is consistent with sound
business practices ("gestion en bon pere de famille").
8. Conditions to Closing
The obligations of the Purchaser to consummate the transactions
contemplated hereby shall be subject to the satisfaction at or prior to the
Closing of the following conditions:
8.1. Release of Pledge on the Existing Shares
The pledge on the Existing Shares set forth on Schedule 5.1 shall
have been released, and the Purchaser shall have been provided evidence
reasonably satisfactory to it of such release.
17
<PAGE>
8.2. Capital Increase
The Seller shall have subscribed to a capital increase of the
Company for a total amount of FF 19,500,000 which subscription will be paid by
offset with outstanding shareholder advances made by the Seller to the Company.
9. Purchaser's Post-Closing Covenants
9.1. The Purchaser shall pay all transfer taxes or similar levies and any
applicable registration duties and taxes ("droits d'enregistrement") arising out
of the transactions contemplated by this Agreement and shall provide to the
Seller a copy of this Agreement duly stamped and evidencing such payment, within
ten (10) days of the Closing.
9.2. (A) Within a period of ninety (90) days from the Closing Date,
the Purchaser shall cause the Company to change its corporate name so that it
will not contain the name "Computron" (or any name that is confusingly similar
therewith), and the Purchaser shall provide the Seller within such period with
an updated Registry of Commerce and Companies extract evidencing that such
change of name has been effected.
(B) The Purchaser shall also cause the Company to take steps
to cease promptly the use of the Computron name and logo (or any name or logo
which is confusingly similar therewith) in connection with the activities of the
Company. The Company shall in this connection promptly, and in no event later
than ninety (90) days after Closing Date, proceed with the replacement of any
stationery, professional cards, manuals, invoices and other materials bearing
the Computron name and logo.
9.3. The Purchaser shall cause the Company and its officers, directors and
employees to maintain confidential all of the trade secrets and business plans
of the Seller. In addition, the Purchaser shall cause the Company and its
officers, directors and employees to return all materials relating to the
Computron products (including software codes and technical materials) to the
Seller
18
<PAGE>
immediately after the Closing, except for those materials relating to the
Computron products to the extent necessary to service Existing Computron
Customers, which the Company and its officers, directors and employees shall
also maintain confidential.
9.4. For a period of sixty (60) days from the Closing Date, upon
reasonable request by the Seller, the Purchaser shall provide the Seller and its
authorized officers, employees, attorneys, accountants and other representatives
copies of any agreements, records, books and other documents of the Company. If,
after the Closing, the Purchaser determines to destroy any agreements, books,
records or documents referred to above, it shall give the Seller at least
fifteen (15) days' prior notice thereof, and, upon request by the Seller, the
Purchaser shall send to the Sellers copies of any such agreements, books,
records or documents. The Purchaser shall not unreasonably deny any request made
by the Seller pursuant to this Section 9.4.
9.5. The Purchaser shall cause the Annual Meeting of Shareholders of the
Company called to approve the financial statements of the Company for the fiscal
year ended December 31, 1999 to give discharge ("Quitus") to the members of the
Board of Directors in office prior to the Closing Date.
9.6. The Purchaser shall indemnify the Seller, as well as any person or
entity who was a "legal manager" ("dirigeant de droit") or director of the
Company while the Company was a subsidiary of the Seller, for any and all direct
or indirect losses incurred by the Seller or such person or entity resulting
from any claim by the French administration, represented by any court, tribunal,
administrative agency or commission or other governmental or regulatory entity,
but in no event resulting from a claim by a private third party, arising from
any bankruptcy, liquidation, reorganization, insolvency or similar proceedings
relating to the Company (an "Event"), if any such Event occurs or commences on
or before twelve (12) months after the Closing Date. The Purchaser's aggregate
liability for indemnity under this Section 9.6 shall not exceed $2,000,000.
9.7. In addition to the indemnity provided in Section 9.6, the Purchaser
shall indemnify the Seller for any and all direct or indirect losses incurred by
the Seller resulting from any breach of
19
<PAGE>
any other covenant, and from any breach of warranty or misrepresentation by the
Purchaser under this Agreement.
10. Seller's Post-Closing Covenant
10.1. As an essential condition to the Purchaser's entering into this
Agreement, the Seller covenants and agrees that it shall pay the sum of $500,000
to the Company by wire transfer on or prior to October 31, 2000, which payment
has been approved by the Board of Directors of the Seller.
11. Seller's and Purchaser's Post-Closing Covenants
11.1. Maintenance for Existing Customers of Computron Products
11.1.1. For so long as the Company has Existing Computron Customers
(as defined below), the Seller shall provide the Company, free of charge, with
any new releases of the Computron products used by such customers which shall be
used by the Company solely to support those Existing Computron Customers. With
respect to any new releases concerning the COOL(TM) products, the Company shall
have the option of "localizing" those new releases at the Company's expense, but
the Seller shall be the exclusive owner of the localized COOL(TM) products. The
Company hereby expressly assigns any rights, including copyrights, in the
localized products to the Seller. The Company shall promptly provide the Seller
with copies of any COOL(TM) products localized under this Agreement.
11.1.2. The Company shall, at the Company's expense, maintain first
level support for all COOL(TM) products for Existing Computron Customers under
existing maintenance agreements, and the Seller shall provide, at the Seller's
expense, the corresponding second and third levels of support. The Company may
provide consulting and implementation services related to Computron products
only to Existing Computron Customers under existing maintenance agreements,
unless otherwise agreed by the Seller in writing. If so requested by an Existing
Computron Customer,
20
<PAGE>
but subject to the prior consent of the Purchaser, the Seller will provide first
level support to such customer, without any liability of the Seller to the
Company.
11.1.3. For purposes of this Section 11, Existing Computron
Customers shall mean any customer or potential customer identified on Schedule
11.1.3 hereto who has executed a license agreement with the Company with respect
to Computron products on or prior to March 31, 2000, and who has a maintenance
policy with the Company which is in force, all as certified by the President of
the Company to the Seller no later than April 15, 2000, in a document setting
forth the name, address, contact name and telephone number of each customer, and
the date of the license, the number of users, and the corresponding module(s).
Thereafter, no later than January 15 of every year, the President of the Company
shall provide a certification containing information as set forth in the
preceding sentence, with respect to all then Existing Computron Customers.
11.1.4. With respect to SMH Neopost, it is understood that Section
12.4 of its license agreement with the Company, dated July 10, 1997, provides
that, in the event the Seller modifies its direct presence in France, the Seller
will assume all of the obligations under the license agreement without any
additional charge. Therefore, the Seller will enter into a maintenance agreement
with SMH Neopost, without any liability of the Seller to the Company.
11.1.5. Notwithstanding anything to the contrary in this Agreement,
the provisions of this Section 11.1. state the sole and exclusive rights of the
Company with respect to the Computron products subsequent to the Closing.
12. Indemnification Obligations of the Seller
12.1. Undertaking of the Seller to Indemnify the Purchaser
Subject to the provisions and limitations of Sections 12.2 and 12.3
hereof, the Seller undertakes to indemnify the Purchaser for any direct and
definitive prejudice actually incurred and paid for by the Company or suffered
by the Purchaser resulting from any material breach of warranty
21
<PAGE>
or misrepresentation by the Seller under this Agreement, it being understood
that such prejudice shall not include any indirect, consequential or punitive
damages incurred by the Company or the Purchaser.
12.2. Limitations to the Seller's Indemnity Obligation
12.2.1. All claims must be notified to the Seller on or before
twelve (12) months after the Closing Date, except that (i) any claim relating to
a breach of the representation concerning tax or social security matters set
forth in Section 5.21 hereof may be notified to the Seller until 30 days after
the expiration of the applicable statute of limitations; and (ii) claims
relating to a breach of the representation concerning the net assets of the
Company as of September 30, 1999 set forth in Section 5.6.3 hereof, or
concerning Year 2000 matters set forth in Section 5.17 hereof, must be notified
to the Seller on or before six (6) months after the Closing Date. Any claim by
the Purchaser for indemnification that has not been so notified to the Seller
shall cease to be indemnifiable pursuant to Section 12.1 above.
12.2.2. Notwithstanding anything to the contrary in Section 12.1,
the Seller shall not indemnify the Purchaser for any loss or prejudice incurred
with respect to any severance obligations owed to any employees of the Company.
12.2.3. Notwithstanding anything to the contrary in Section 12.1,
the Seller shall not indemnify the Purchaser for any loss or prejudice incurred
with respect to Year 2000 compliance matters unless the Company maintains, for a
period of at least six (6) months after the Closing Date, an appropriate Year
2000 development and support organization which shall include at least three
technicians and which shall be substantially equivalent in terms of capabilities
to the Company's organization as is in place immediately prior to the Closing
Date.
12.2.4. No claim for indemnity pursuant to this Agreement may be
brought by the Purchaser unless and until the total amount of the Purchaser's
claims against the Seller shall exceed
22
<PAGE>
FF 4,700,000, it being understood that the Seller's indemnification obligation
shall then apply only to the amounts in excess of FF 4,700,000.
12.2.5. The Seller's aggregate liability for indemnity under this
Agreement shall not exceed FF 300,000.
12.3. Procedure for Indemnity Claims by the Purchaser
12.3.1. Any indemnity claim that is made by the Purchaser against
the Seller under this Agreement (a "Claim") must indicate the amount of the
requested indemnification, as well as its method of calculation, and must be
accompanied by appropriate proof of such Claim.
12.3.2. The Seller may contest the validity or the extent of the
Purchaser's Claim. To do so, the Seller must notify the Purchaser of the
Seller's objection within twenty-one (21) days of receipt of the Purchaser's
Claim. Such an objection made by the Seller must set forth the reasons therefor.
In the event the parties are unable to reach amicable agreement within thirty
(30) days of the Purchaser's receipt of the Seller's notice of objection, the
Purchaser may bring legal action against the Seller to enforce its Claim.
12.3.3. In the event of (i) an actual or possible claim by a third
party against the Company, or (ii) an audit or legal proceedings by the tax or
social security authorities, in each case relating to activities which took
place prior to the Closing Date and which might give rise to a Claim (a "Third
Party Claim"), the Purchaser shall notify the Seller within fifteen (15) days of
the Company obtaining knowledge of the Third Party Claim. If the Purchaser fails
to notify the Seller of such Third Party Claim, the Seller shall not be
obligated to indemnify the Purchaser with respect to such Third Party Claim. The
Seller shall notify the Purchaser as soon as practicable whether the Seller
desires to defend the Company against such Third Party Claim.
12.3.4. If the Seller notifies the Purchaser that the Seller desires
to defend the Company with respect to the Third Party Claim pursuant to this
Section 12.3, then the Seller will
23
<PAGE>
have the right to retain counsel or other experts of its choice, reasonably
acceptable to the Purchaser, to represent the Company in connection with such
Third Party Claim, and shall pay the fees and disbursements of such counsel and
experts with regard thereto. The Seller will have full control of such defense
and proceedings, including any compromise or settlement thereof; provided,
however, that, if requested by the Seller, the Purchaser shall cooperate with
the Seller and its counsel and experts in contesting any such Third Party Claim.
The Purchaser shall refrain from taking any action likely to jeopardize or
interfere with the defense of such Third Party Claim.
12.3.5. Neither the Purchaser nor the Company may accept any
liability or sign or accept an agreement or a settlement in respect of a Third
Party Claim without first having obtained the prior written consent of the
Seller. In the event that the Seller's consent has been denied, and the
Purchaser or the Company nevertheless accepts liability or signs or accepts an
agreement or settlement, the Seller shall not be liable under this Agreement for
the prejudice related to a Third Party Claim.
12.3.6. If the Seller considers that a settlement of any Third Party
Claim is of a nature to minimize the indemnity amount due to the Purchaser, and
if the Purchaser refuses to approve the terms of the settlement, the Seller's
liability in respect of that Third Party Claim shall be determined as if the
settlement that the Seller proposed had been concluded, provided that the Seller
can prove that the third party, or the tax or social security authorities, as
the case may be, had agreed to the terms of the proposed settlement.
12.3.7. The Purchaser may not obtain an indemnity from the Seller
for any amount recoverable from a third party related to the same facts giving
rise to a Claim. In particular, the Seller's liability under this Agreement may
not be claimed if the impact of an event giving rise to a Claim has been
repaired or offset, or if it can be repaired or offset, without any significant
cost or obligation of the Purchaser or the Company, by any third party or by any
other means. In all cases of a Claim, if the Company is insured against the loss
or damages giving rise to the Claim or would have been insured against the loss
or damages giving rise to the Claim if the Company had maintained the insurance
policies which were in force on the Closing Date, the loss or damages
24
<PAGE>
giving rise to the Claim shall not give rise to indemnification. In every case
in which the Company may obtain damages from third parties for a loss or damages
giving rise to a Claim, the Purchaser undertakes - on its own behalf and on
behalf of the Company - to take all reasonable action in order to obtain
indemnification from said third parties prior to any action against the Seller.
12.3.8. The prejudice shall be calculated on a net tax basis, by
taking into account any tax deductions, tax savings or increases in the
Company's loss carry forward arising from the events giving rise to the
prejudice. It is specified that the Seller may not be held liable to indemnify
the Purchaser with respect to a Claim related to the taxation of the Company so
long as the Claim only causes a simple transfer of profits, revenue or expense
from one fiscal year to another or relates to value added tax and is not a
definitive expense. For purposes of determining a possible indemnity amount, the
accounting rules and principles which were used by the Company to prepare the
1999 Interim Accounts shall be applied. No other accounting rules nor any
principles which might be used by the Company after the Closing shall be used
for the purposes of such determination.
12.3.9. For each Claim made by the Purchaser, the corresponding
indemnity amount shall be paid by the Seller, subject to the strict compliance
with the procedure set out in this Section 12.3, promptly after the relevant
damage becomes certain or, in the case of a Third Party Claim, promptly after
such debt becomes due and owing pursuant to a final, non-appealable and binding
decision of a competent court, arbitral tribunal or administrative authority
(unless a settlement has been reached with the third party with the prior
written consent of the Seller, in which case the indemnity amount shall be paid
by the Seller immediately prior to the time payment must be effected under the
settlement).
12.3.10. The Purchaser agrees to take and to cause the Company to
take all necessary measures to mitigate the damages suffered as a result of an
event or occurrence giving rise to indemnification by the Seller under this
Agreement.
25
<PAGE>
13. Miscellaneous
13.1. No assignment
No party may transfer any of its rights or obligations under this
Agreement to any person or entity.
13.2. Notices
13.2.1. Any notice or other communication given or made pursuant to
this Agreement shall be in writing.
13.2.2. Any such notice or other communication shall be addressed as
provided in Section 13.2.3 below and, if so addressed, shall be deemed to have
been duly given or made as follows:
(A) if sent by personal delivery, upon delivery at the
address of the relevant party;
(B) if sent overseas, by a reputable overnight courier, on
the date of delivery, the receipt of delivery attesting thereto; and
(C) if sent by facsimile, when dispatched but only if the
transmission report indicates that the facsimile was properly transmitted and a
copy of the facsimile is sent by registered mail immediately following the
facsimile transmission, provided that, if, in accordance with the above
provisions, any such notice or other communication is given or made outside
working hours in the time zone of the recipient, such notice or other
communication shall be deemed to be given or made at the start of the
recipient's working hours on the next Business Day.
26
<PAGE>
13.2.3. For the purposes of this Agreement, the relevant addressee,
address and facsimile number of each party, subject to Section 13.2.4, are as
follows:
(A) any notice or communication to the Seller shall be
deemed to be duly given or made if addressed to Computron Software, Inc., 301
Route 17 North, Rutherford, New Jersey 07070, United States; fax number: (1-201)
939-6955 Attention: General Counsel.
(B) any notice or communication to the Purchaser shall be
deemed to be duly given or made if addressed to Adonix, 4, avenue Laurent Cely,
92606 Asnieres, France; fax number: (33-1) 41.11.70.99 Attention: Emile Hamou.
13.2.4. The Seller and the Purchaser may notify the other of a
change to their respective name, address or facsimile number for the purposes of
Section 13.2.3, provided that such notification shall only be effective on:
(A) the date specified in the notification as the date on
which the change is to take place; or
(B) if no date is specified or the date specified is less
than five Business Days after the date on which notice is given, the date that
is five Business Days after notice of any such change has been given.
13.3. Confidentiality
Except to the extent required by law or stock exchange requirements
applicable to the Purchaser, the Seller or the Company, no announcement
concerning the terms of, or any matters contemplated by, this Agreement, or any
matter ancillary to it, may be made by or on behalf of one party to this
Agreement except with the prior written consent of the other party hereto.
27
<PAGE>
13.4. Entire Agreement; Binding Effect; Modification
This Agreement, together with the Non-Disclosure Agreement between
the Purchaser and the Company, dated October 4, 1999 (the "Non-Disclosure
Agreement"), and the Letter Agreement, contains the entire agreement among the
parties with respect to the subject matter contained herein and therein, and
shall inure to the benefit of and be binding upon the parties hereto, and their
respective successors. This Agreement may not be modified, altered or changed in
any manner except by an agreement in writing, signed by the Purchaser and the
Seller, which makes express reference to this Agreement and is stated to be an
amendment hereof. This Agreement, the Non-Disclosure Agreement and the Letter
Agreement supersede all prior agreements among the parties hereto with respect
to the subject matter herein and therein contained.
13.5. Severability
If any provision of this Agreement is held for any reason to be
unenforceable, invalid or illegal, it shall not impair the validity, legality or
enforceability of the remainder of this Agreement.
13.6. Governing Law and Jurisdiction
This Agreement shall be governed by the laws of France. All disputes
shall be subject to the exclusive jurisdiction of the Commercial Court of Paris.
13.7. Costs
Each party shall bear all costs (including legal fees) which it
shall incur in connection with the negotiation and preparation of this Agreement
and all transactions contemplated by this Agreement.
28
<PAGE>
IN WITNESS WHEREOF, the parties hereto have signed this Agreement in
Paris, in four (4) originals, including one for registration purposes, on the
day and year first above written.
COMPUTRON SOFTWARE, INC. ADONIX
By: /s/ MICHAEL R. JORGENSEN By: /s/ EMILE HAMOU
------------------------- ------------------
Name: Michael R. Jorgensen Name: Emile Hamou
Title: Executive Vice President, Title:President
Chief Financial Officer
29
<PAGE>
FOR IMMEDIATE RELEASE
Contact: Michael R. Jorgensen
Computron Software, Inc.
(201) 935-3400
[email protected]
------------------------
Erica Hoeft
Ruder-Finn
(312) 329-3913
[email protected]
------------------------
COMPUTRON SOFTWARE ANNOUNCES SALE OF FRENCH SUBSIDIARY
RUTHERFORD, NJ, January 13, 2000 - Computron Software, Inc. (AMEX: CFW) today
announced the sale of its wholly-owned subsidiary in France. The French
operations were sold as of December 29, 1999 for nominal consideration. The
Company will recognize a loss on the sale of approximately $2 million in the
fourth quarter of 1999.
Commenting on the sale, CEO John Rade noted, "The sale of our operations in
France is part of our strategy to shed non-strategic businesses in order to
focus on our internally developed product lines, which have been profitable
since the third quarter of 1998."
During the nine months ended September 30, 1999 and the year ended December 31,
1998, operating losses attributable to the French operations aggregated
approximately $2.2 million and $3.3 million, respectively.
Computron Software, Inc. Background Information
Founded in 1978, Computron Software, Inc. (AMEX: CFW) is a global provider of
application software solutions for business and finance. Used by more than 500
companies worldwide, these solutions automate business processes across the
enterprise and allow organizations to capitalize on the knowledge within their
systems. Computron's goal is to provide organizations with competitive advantage
and added, measurable business value. The Company's latest Internet products
will allow companies to quickly deploy e-business application strategies. For
further information on Computron, its products, services and customers, visit
the Computron web site at http://www.computronsoftware.com.
# # #
This press release contains forward-looking statements. Such statements are only
predictions and actual events or results may differ materially. All
forward-looking statements involve risks and uncertainties, including, without
limitation, the risks detailed in the Company's documents and reports filed from
time to time with the Securities and Exchange Commission.
<PAGE>
