TAX SHARING AGREEMENT
This Tax Sharing Agreement dated as of July 17, 1997 by and between Marcam
Corporation, a Massachusetts corporation ("Marcam"), and Marcam Solutions, Inc.,
a Delaware corporation ("Marcam Solutions"):
WITNESSETH:
WHEREAS, Marcam and Marcam Solutions intend to enter into a Distribution
Agreement dated as of July 17, 1997 (the "Distribution Agreement"), providing
for, among other things, (i) the transfer by Marcam of certain assets to Marcam
Solutions in exchange for shares of common stock of Marcam Solutions, warrants
to acquire shares of common stock of Marcam Solutions, and the assumption by
Marcam Solutions of certain liabilities, and (ii) the distribution by Marcam of
all of the outstanding shares of Marcam Solutions common stock to the holders of
Marcam's outstanding capital stock (the "Distribution");
WHEREAS, in connection with the Distribution, each person who was granted
an option to purchase Marcam stock pursuant to the Marcam Corporation 1987 Stock
Plan, the Marcam Corporation 1991 Non-Employee Director Stock Option Plan and
the Marcam Corporation 1994 Stock Plan will (i) subject to certain adjustments
to the exercise price of such option, retain such option (as adjusted, the
"Pre-Distribution MAPICS Option") and (ii) be granted an option (the
"Pre-Distribution Marcam Solutions Option") to purchase a number of shares of
Marcam Solutions stock equal to one-half of the number of shares subject to the
Pre-Distribution MAPICS Options held by such person as of the Distribution Date;
WHEREAS, on or prior to the Distribution Date, Marcam intends to amend its
Restated Articles of Organization to change its name from "Marcam Corporation"
to "MAPICS, Inc." ("MAPICS");
WHEREAS, Marcam and Marcam Solutions desire to define their rights and
obligations with respect to certain tax liabilities and refunds of taxes
relating to Marcam's business for periods ending on or prior to the Distribution
Date;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, the parties agree as follows:
1. Definitions
(a) As used in this Agreement:
"Adjusted Stock Options" shall mean all Pre-Distribution MAPICS
Options and Pre-Distribution Marcam Solutions Options.
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"Code" shall mean the Internal Revenue Code of 1986, as amended, or
any successor thereto.
"Distribution Date" shall mean the date on which the Distribution
shall be effected.
"Federal Tax" shall mean any Tax imposed under Subtitle A of the Code
and any related penalty imposed under Subtitle F of the Code.
"Final Determination" shall mean (i) with respect to Federal Taxes,
(A) a "determination" as defined in Section 1313 (a) of the Code, or (B) the
date of acceptance by or on behalf of the Internal Revenue Service of Form
870-AD (or any successor form thereto), as a final resolution of Tax liability
for any Taxable period, except that a Form 870-AD (or successor form thereto)
that reserves the right of the taxpayer to file a claim for refund and/or the
right of the Internal Revenue Service to assert a further deficiency shall not
constitute a Final Determination with respect to the item or items so reserved;
(ii) with respect to Taxes other than Federal Taxes, any final determination of
liability in respect of a Tax provided for under applicable law; (iii) any final
disposition by reason of the expiration of the applicable statute of
limitations; and (iv) the payment of Tax by MAPICS, Marcam Solutions, or any
subsidiary of MAPICS or Marcam Solutions, whichever is responsible for payment
of such Tax under applicable law, with respect to any item disallowed or
adjusted by a Taxing Authority, provided that the provisions of Section 8 hereof
have been complied with, or, if such section is inapplicable, that the party
responsible under the terms of this Agreement for such Tax is notified by the
party paying such Tax that it has determined that no action should be taken to
recoup such disallowed item, and the other party agrees with such determination.
"ISO" shall mean an "incentive stock option" as defined in Section 422
of the Code.
"MAPICS Group" shall mean MAPICS and its subsidiaries, in each case,
immediately after the Distribution Date, and their predecessors and successors
(other than members of the Marcam Solutions Group).
"Marcam Group" shall mean Marcam and its subsidiaries, in each case,
immediately before the Distribution Date.
"Marcam Solutions Division" shall mean the business division of
Marcam, prior to the Distribution Date, headquartered in Newton, Massachusetts
and consisting of substantially all of the business assets (including subsidiary
corporations) transferred to the Marcam Solutions Group.
"Marcam Solutions Group" shall mean Marcam Solutions and its
subsidiaries, in each case, immediately after the Distribution Date, and their
predecessors and successors (other than members of the MAPICS Group).
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"Marcam Solutions Sales and Property Tax" shall mean (i) any sales or
use Tax imposed on the sale, transfer, or use of tangible or intangible personal
property and (ii) any property, ad valorem or other similar non-income Tax
imposed with respect to ownership of an interest in real or personal property,
in each case, for which a Return was filed by the Marcam Solutions Division.
"Non-US Marcam Solutions Tax" shall mean (i) any Tax imposed on a
subsidiary of the Marcam Solutions Group by a Taxing Authority other than a
United States federal, state or local Taxing Authority and (ii) any Tax imposed
on Marcam (but not on a subsidiary of Marcam) for a Pre-Distribution Period on a
branch basis by a Taxing Authority other than a United States federal, state or
local Taxing Authority.
"Other Taxes" shall mean all Taxes (including, but not limited to,
Federal Taxes), other than any Marcam Solutions Sales and Property Tax or Non-US
Marcam Solutions Tax.
"Post-Distribution Period" shall mean any Taxable period (or portion
thereof) beginning after the close of business on the Distribution Date.
"Pre-Distribution Period" shall mean any Taxable period ending on or
before the close of business on the Distribution Date; provided that if a
Taxable period ending after the Distribution Date contains any days which fall
prior to or on the Distribution Date, any portion of such Taxable period up to
or including the Distribution Date shall also be included in the
Pre-Distribution Period.
"Pre-Distribution MAPICS Tax" shall mean all Other Taxes payable with
respect to a Pre-Distribution Period. Pre-Distribution MAPICS Tax for a Taxable
period ending after the Distribution Date but containing days which fall prior
to or on the Distribution Date shall be determined on a hypothetical basis,
calculated as if the period beginning on the first day of such Taxable period
and ending on the Distribution Date were a separate Taxable year for all Tax
purposes.
"Pre-Distribution Marcam Solutions Tax" shall mean all Marcam
Solutions Sales and Property Taxes and Non-US Marcam Solutions Taxes payable
with respect to a Pre-Distribution Period. Pre-Distribution Marcam Solutions Tax
for a Taxable period ending after the Distribution Date but containing days
which fall prior to or on the Distribution Date shall be determined on a
hypothetical basis, calculated as if the period beginning on the first day of
such Taxable period and ending on the Distribution Date were a separate Taxable
year for all Tax purposes.
"Prime" shall mean the rate announced from time to time as "prime" by
Chase Manhattan Bank, New York City, New York as its prime rate.
"Return" shall mean any Tax return, statement, report or form
(including estimated Tax returns and reports, extension requests and forms, and
information returns and reports) required to be filed with any Taxing Authority.
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"Tax" (and the correlative meaning, "Taxes," "Taxing" and "Taxable")
shall mean (A) any tax imposed under Subtitle A of the Code, any net income,
gross income, gross receipts, alternative or add-on minimum, sales, use,
value-added, goods and services, ad valorem, franchise, profits, license,
withholding, payroll, employment, excise, transfer, recording, severance, stamp,
occupation, premium, property, environmental, custom duty, or other tax,
governmental fee or other like assessment or charge of any kind whatsoever,
together with any interest and any penalty, addition to tax or additional amount
imposed by a Taxing Authority; (B) any liability for the payment of any amounts
of the type described in clause (A) for any Taxable period resulting from the
application of Treasury Regulation Section 1.1502-6 or any similar provision
applicable under state, local or foreign law; and (C) any liability for the
payment of any amounts described in clause (A) as a result of any express or
implied obligation to indemnify any other party.
"Tax Packages" shall mean one or more packages of information that are
(i) reasonably necessary for the purpose of preparing a Return and (ii)
completed in all material respects in accordance with the standards that Marcam
has established for its subsidiaries and divisions with respect to the relevant
Pre-Distribution Period.
"Tax Proceeding" shall mean any Tax audit, dispute, investigation,
suit or proceeding (whether administrative or judicial).
"Taxing Authority" shall mean any governmental authority (domestic or
foreign) responsible for the imposition of any Tax.
(b) Any term used in this Agreement which is not defined in this
Agreement shall, to the extent the context requires, have the meaning assigned
to it in the Code or the applicable Treasury regulations thereunder and, in the
case of Taxes other than Federal Taxes, in comparable provisions of applicable
law.
2. Administrative and Compliance Matters.
(a) Sole Tax Sharing Agreement. This Agreement shall constitute the
sole Tax sharing agreement between the MAPICS Group, on one hand, and the Marcam
Solutions Group, on the other hand, and, to the extent there is any
inconsistency between such agreements and any existing Tax sharing agreements or
arrangements, written or unwritten, this Agreement shall govern.
(b) Preparation of Returns. Except as otherwise provided herein
(including Section 2(d)) and subject to the rules set forth in this Agreement,
for all Pre-Distribution Periods, Marcam Solutions shall be responsible for the
timely preparation and timely filing of all Returns relating to Non-US Marcam
Solutions Taxes and Marcam Solutions Sales and Property Taxes attributable to
such periods, and MAPICS shall be responsible for the timely preparation and
timely filing of all Returns relating to Other Taxes attributable to such
periods. Each member of the MAPICS Group shall prepare and deliver to Marcam
Solutions all applicable Tax Packages
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no later than 150 days after the last day of the Tax year with respect to which
such Tax Packages relate. Each member of the Marcam Solutions Group shall
prepare and deliver to MAPICS all applicable Tax Packages no later than 150 days
after the last day of the Tax year with respect to which such Tax Packages
relate.
(c) Designation of Agent.
(i) Marcam Solutions and each member of the Marcam Solutions
Group, with respect to Other Taxes attributable to a Pre-Distribution
Period, each hereby irrevocably designate MAPICS or its successors as
its agent, coordinator, and administrator, for the purpose of taking
any and all actions (including the execution of waivers of applicable
statutes of limitation) necessary or incidental to the filing of any
Return, any amended Return, or any claim for refund, credit or offset
of Tax or any other proceedings, and for the purpose of making
payments to, or collecting refunds from, any Taxing Authority, in each
case relating to any item affecting the amount of the Pre-Distribution
MAPICS Tax. MAPICS, as agent, covenants to Marcam Solutions that it
shall be responsible to see that all such administrative matters
relating thereto shall be handled promptly and appropriately.
(ii) MAPICS and each member of the MAPICS Group, with
respect to Marcam Solutions Sales and Property Taxes and Non-US Marcam
Solutions Taxes attributable to a Pre-Distribution Period, each hereby
irrevocably designate Marcam Solutions or its successors as its agent,
coordinator, and administrator, for the purpose of taking any and all
actions (including the execution of waivers of applicable statutes of
limitation) necessary or incidental to the filing of any Return, any
amended Return, or any claim for refund, credit or offset of Tax or
any other proceedings, and for the purpose of making payments to, or
collecting refunds from, any Taxing Authority, in each case relating
to any item affecting the amount of the Pre-Distribution Marcam
Solutions Tax. Marcam Solutions, as agent, covenants to MAPICS that it
shall be responsible to see that all such administrative matters
relating thereto shall be handled promptly and appropriately.
(d) Post-Distribution Conduct. Notwithstanding anything in this
Agreement to the contrary, (i) without the prior written consent of Marcam
Solutions (which consent shall not be unreasonably withheld), no member of the
MAPICS Group shall make or change any Tax election, change any accounting
method, amend any Return or take any Tax position on any Return or take any
other action, that results in any increased Tax liability in respect of a
Pre-Distribution Marcam Solutions Tax or could reasonably be expected to have a
material adverse effect on Marcam Solutions' Tax liability in a
Post-Distribution Period, and (ii) without the prior written consent of MAPICS
(which consent shall not be unreasonably withheld), no member of the Marcam
Solutions Group shall make or change any Tax election, change any accounting
method, amend any Tax return or take any Tax position on any Return or take any
other action, that results in any increased Tax liability in respect of a
Pre-Distribution MAPICS Tax or could reasonably be expected to have a material
adverse effect on MAPICS' Tax liability in a Post-Distribution Period.
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3. Allocation and Reimbursement of Taxes.
(a) General. Marcam Solutions shall be responsible for all
Pre-Distribution Marcam Solutions Taxes (including any liability arising out of
a Final Determination of such Taxes). MAPICS shall be responsible for all
Pre-Distribution MAPICS Taxes (including any liability arising out of a Final
Determination of such Taxes).
(b) Compensation Deductions attributable to Adjusted Stock Options.
Unless otherwise determined pursuant to a Final Determination, no member of the
MAPICS Group shall be entitled to Tax deductions attributable to
Pre-Distribution Marcam Solutions Options (including Tax deductions arising out
of a disposition of shares acquired upon exercise of an ISO), and no member of
the Marcam Solutions Group shall be entitled to Tax deductions attributable to
Pre-Distribution MAPICS Options (including Tax deductions arising out of a
disposition of shares acquired upon exercise of an ISO); provided, however, that
MAPICS shall be entitled to all Tax deductions attributable to a disposition, on
or after the Distribution Date, of Marcam stock acquired upon exercise of an ISO
prior to the Distribution Date.
(c) Notice Requirements upon exercise of Adjusted Stock Options. So
that all applicable employment and other Tax obligations may be satisfied:
(i) in the event an employee (or former employee) of a
member of the MAPICS Group exercises a Pre-Distribution Marcam
Solutions Option, Marcam Solutions shall notify MAPICS of the
following information within ten (10) business days after the date of
such exercise: the name of the employee, the number of shares acquired
pursuant to such exercise, the amount paid for such shares and the
fair market value of the shares issued as of the date of such
exercise; and
(ii) in the event an employee (or former employee) of a
member of the Marcam Solutions Group exercises a Pre-Distribution
MAPICS Option, MAPICS shall notify Marcam Solutions of the following
information within ten (10) business days after the date of such
exercise: the name of the employee, the number of shares acquired
pursuant to such exercise, the amount paid for such shares and the
fair market value of the shares issued as of the date of such
exercise.
(d) Value-Added Taxes. If any member of the Marcam Solutions Group, or
any member of the MAPICS Group, collects amounts of value-added Tax which, under
the provisions hereof, are to be paid by members of the other group, then the
member collecting such amounts of value-added Tax shall, within 5 days after the
collection thereof, reimburse such other member the full amount of value-added
Tax so collected.
4. Refunds.
Any refunds of Tax received by any member of the MAPICS Group relating
to a Pre-Distribution Marcam Solutions Tax shall be paid by MAPICS to Marcam
Solutions within
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30 days of receipt. Any refunds of Tax received by any member of the Marcam
Solutions Group relating to a Pre-Distribution MAPICS Tax shall be paid by
Marcam Solutions to MAPICS within 30 days of receipt. Any amount not paid when
due shall bear interest as provided in Section 9.
5. Taxes attributable to the Distribution.
Notwithstanding anything in this Agreement to the contrary and except
as set forth in Section 5.02(e) of the Distribution Agreement, no member of the
Marcam Solutions Group shall be obligated to make any payment to MAPICS for
Taxes attributable to or arising out of any of the transactions contemplated by
the Distribution Agreement, regardless of whether such transactions are taxable
as a result of actions taken by, or transactions involving, a member of the
Marcam Solutions Group.
6. Indemnification.
(a) MAPICS Indemnity. Each member of the MAPICS Group agrees to
indemnify each member of the Marcam Solutions Group against, and hold them
harmless from, (i) any liability for Pre-Distribution MAPICS Taxes, (ii) any
liability for Taxes attributable to a Post-Distribution Period to the extent
such Taxes relate to the assets or operations of a member of the MAPICS Group,
(iii) except as set forth in Section 5.02(e) of the Distribution Agreement, any
liability for Taxes attributable to or arising out of any of the transactions
contemplated by the Distribution Agreement, regardless of whether such
transactions are taxable as a result of actions taken by, or transactions
involving, a member of the Marcam Solutions Group, (iv) any liability for Taxes
resulting from the taking of any action otherwise prohibited by Section 8, and
(v) all costs, expenses (including, without limitation, attorney's fees and
expenses), losses, damages, and assessments incurred in connection with Taxes
referred to in clauses (i), (ii), (iii) and (iv) of this Section 6(a).
(b) Marcam Solutions Indemnity. Each member of the Marcam Solutions
Group agrees to indemnify each member of the MAPICS Group against, and hold them
harmless from (i) any liability for Pre-Distribution Marcam Solutions Taxes,
(ii) any liability for Taxes attributable to a Post-Distribution Period to the
extent such Taxes relate to the assets or operations of a member of the Marcam
Solutions Group, (iii) any liability for Taxes resulting from the taking of any
action otherwise prohibited by Section 8, and (iv) all costs, expenses
(including, without limitation, attorney's fees and expenses), losses, damages,
and assessments incurred in connection with Taxes referred to in clauses (i),
(ii) and (iii) of this Section 6(b).
(c) No member of the Marcam Solutions Group shall be liable to any
member of the MAPICS Group, and no member of the MAPICS Group shall be liable to
any member of the Marcam Solutions Group, for any Tax or other costs, expenses,
losses, damages and other assessments incurred by such member in connection with
a Final Determination regarding Tax deductions attributable to Adjusted Stock
Options (including Tax deductions arising out of a disposition of shares
acquired upon exercise of an ISO).
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7. Communication and Cooperation
(a) Consult and Cooperate. Marcam Solutions and MAPICS shall consult
and cooperate (and shall cause each of their subsidiaries to consult and
cooperate) fully at such time and to the extent reasonably requested by the
other party in connection with all matters subject to this Agreement. Such
cooperation shall include, without limitation:
(i) the retention and provision on reasonable request of any
and all information including all books, records, documentation or
other information pertaining to Tax matters relating to the MAPICS
Group and the Marcam Solutions Group, any necessary explanations of
information, and access to personnel, until the expiration of the
applicable statute of limitation (giving effect to any extension,
waiver, or mitigation thereof);
(ii) the execution of any document that may be necessary or
helpful in connection with the preparation of any Return or in
connection with any Tax Proceeding;
(iii) reporting to the other party, on a quarterly basis, on
the status of any Tax Proceeding relating to a Pre-Distribution Period
if the results of such proceedings are reasonably likely to have a
material adverse effect on the other party; and
(iv) the use of the parties' reasonable efforts to obtain
any documentation from a governmental authority or a third party that
may be necessary or helpful in connection with the foregoing.
(b) Provide Information. MAPICS and Marcam Solutions shall keep each
other fully informed with respect to any material development relating to the
matters subject to this Agreement.
(c) Tax Attribute Matters. MAPICS and Marcam Solutions shall advise
and consult with each other with respect to any Tax Proceeding which may affect
any Tax attribute of any member of the Marcam Solutions Group or the MAPICS
Group (including, but not limited to, basis in an asset or the amount of
earnings and profits). Marcam Solutions makes no representations, warranties or
covenants to MAPICS regarding the amount or availability of any net operating
losses, Tax credits or similar Tax attributes of Marcam as of the Distribution
Date.
8. Audits and Contest.
(a) Notwithstanding anything in this Agreement to the contrary, Marcam
Solutions shall have full control over all matters and Tax Proceedings relating
to any item affecting a Pre-Distribution Marcam Solutions Tax, and MAPICS shall
have full control over all matters and Tax Proceedings relating to any item
affecting a Pre-Distribution MAPICS Tax; provided, however, that no party shall
settle such Tax Proceeding without the prior written consent of the other party
(which consent shall not be unreasonably withheld) if such settlement would have
a material adverse effect on the other party.
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(b) MAPICS agrees to give prompt notice to Marcam Solutions of the
assertion of any claim or the commencement of any Tax Proceeding in respect of
which indemnity may be sought hereunder. The failure of MAPICS to give notice as
provided in this Section 8(b) shall not relieve Marcam Solutions of its
obligations under this Agreement, except to the extent that Marcam Solutions is
materially prejudiced by such failure to give notice.
(c) Marcam Solutions agrees to give prompt notice to MAPICS of the
assertion of any claim or the commencement of any Tax Proceeding in respect of
which indemnity may be sought hereunder. The failure of Marcam Solutions to give
notice as provided in this Section 8(c) shall not relieve MAPICS of its
obligations under this Agreement, except to the extent that MAPICS is materially
prejudiced by such failure to give notice.
(d) With respect to Returns of MAPICS relating to Post-Distribution
Periods, MAPICS shall have full control over all matters relating to any Tax
Proceeding in connection therewith provided that MAPICS shall not report or
assert any Tax position that is inconsistent with (i) Tax positions taken on any
Return relating to a Pre-Distribution Marcam Solutions Tax or (ii) the
provisions of Section 3(c) of this Agreement.
(e) With respect to Returns of Marcam Solutions relating to
Post-Distribution Periods, Marcam Solutions shall have full control over all
matters relating to any Tax Proceeding in connection therewith provided that
Marcam Solutions shall not report or assert any Tax position that is
inconsistent with (i) Tax positions taken on any Return relating to a
Pre-Distribution MAPICS Tax or (ii) the provisions of Section 3(c) of this
Agreement.
9. Payments.
All payments to be made hereunder shall be made in immediately
available funds. Except as otherwise provided, all payments required to be made
pursuant to this Agreement will be due 30 days after the receipt of notice of
such payment, or, where no notice is required, 30 days after the fixing of
liability or the resolution of a dispute. Payments shall be deemed made when
received. Any payment that is not made when due shall bear interest at the rate
per annum determined, from time to time, under the provisions of Section
6621(a)(2) of the Code for each day until paid; provided, however, that, if an
obligation or the amount thereof is being disputed in good faith, any payment
required after resolution of such dispute shall bear interest at Prime until and
including the thirtieth day after such resolution.
10. Notices.
All notices, requests and other communications to either party shall
be in writing (including telecopy or similar electronic transmissions), shall
refer specifically to this Agreement and shall be personally delivered or sent
by telecopy or other electronic facsimile transmission, by registered mail or
certified mail, return receipt requested, postage prepaid or by reliable
overnight courier service, in each case, to the respective addresses specified
below (or to such address as may be specified in writing by one party to the
other). All notices shall be effective
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when received if delivered by hand or facsimile, three (3) business days after
mailing, if mailed, and one (1) business day after delivery to a reliable
overnight courier service.
If to MAPICS: MAPICS, Inc.
0000-X Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: Chief Executive Officer
Telecopy: (000) 000-0000
If to Marcam Solutions: Marcam Solutions, Inc.
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Chief Executive Officer
Telecopy: (000) 000-0000
11. Costs and Expenses.
Except as expressly set forth in this Agreement or in any other
agreement between Marcam Solutions and MAPICS, each party shall bear its own
costs and expenses incurred pursuant to this Agreement, including any attorney
fees, accountant fees and other related professional fees and disbursements
incurred by such party.
12. Effectiveness; Termination and Survival.
This Agreement shall become effective upon the consummation of the
Distribution. Notwithstanding anything in this Agreement to the contrary, this
Agreement shall remain in effect and its provisions shall survive for the full
period of all applicable statutes of limitation (giving effect to any extension,
waiver or mitigation thereof).
13. Section Headings.
The headings contained in this Agreement are inserted for convenience
only and shall not constitute a part hereof or in any way affect the meaning or
interpretation of this Agreement.
14. Entire Agreement; Amendments and Waivers.
(a) Entire Agreement. This Agreement contains the entire understanding
of the parties hereto with respect to the subject matter contained herein. No
alteration, amendment, modification, or waiver of any of the terms of this
Agreement shall be valid unless made by an instrument signed by an authorized
officer of MAPICS and Marcam Solutions, or in the case of a waiver, by the party
against whom the waiver is to be effective.
(b) Waiver. No failure or delay by any party in exercising any right,
power or privilege hereunder shall operate as a waiver hereof nor shall any
single or partial exercise
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thereof preclude any other or further exercise thereof or the exercise of any
right, power or privilege.
15. Governing Law and Interpretation.
This Agreement has been made in and shall be construed and enforced in
accordance with the laws of the Commonwealth of Massachusetts, without giving
effect to the principles of conflicts of law thereof.
16. Dispute Resolution.
Any disagreement or dispute relating to this Agreement shall be
resolved in accordance with the procedures set forth in Sections 7.06 and 7.07
of the Distribution Agreement.
17. Counterpart.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
18. Successors and Assigns.
The rights under this Agreement may not be assigned and duties may not
be delegated by any party without the written consent of the other party, which
consent shall not be unreasonably withheld. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
and their respective successors and permitted assigns. In addition, as to each
party hereto, (a) notwithstanding the preceding sentence, this Agreement and all
of the provisions hereof shall be binding upon and inure to the benefit of such
party and upon any person or entity that may hereafter acquire, whether by
purchase of assets, purchase of stock, merger, share exchange or other business
combination, substantially all of the business and assets of such party, and (b)
this Agreement and all of the provisions hereof shall be binding upon and inure
to the benefit of any other person or entity to whom the rights of such party
may be specifically assigned in accordance with the preceding sentence.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the day and year first written above.
MARCAM CORPORATION
By:
Xxxxxxx X. Xxxxxxx, President and
Chief Executive Officer
MARCAM SOLUTIONS, INC.
By:
Xxxxxxx X. Xxxxxxx, President and
Chief Executive Officer
