EXHIBIT 10.24
ASSET PURCHASE AGREEMENT
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS 1
ARTICLE II TERMS OF PURCHASE AND SALE 4
2.1 Sale of Assets 5
2.2 The Closing 5
2.3 Purchase Price and Payment 5
2.4 Closing Documents 5
ARTICLE III REPRESENTATIONS AND WARRANTIES OF SELLER 6
3.1 Organization 6
3.2 Authority 7
3.3 Execution and Delivery 7
3.4 Binding Agreement 7
3.5 Title to the Assets 7
3.6 Outstanding Obligations 7
3.7 Contracts 7
3.8 Intellectual Property 7
3.9 Violation of Laws 8
3.10 Taxes 8
3.11 Bankruptcy 8
3.12 No Brokers 8
3.13 No Claims 8
3.14 Accuracy of Disclosures 9
3.15 Investment Company 9
3.16 Insurance 9
3.17 No Undisclosed Material Liabilities 9
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PURCHASER 9
4.1 Organization 9
4.2 Execution and Delivery 9
4.3 Binding Agreement 10
4.4 Litigation 10
4.5 No Brokers 10
ARTICLE V COVENANTS OF SELLER 10
5.1 Access to the Company 10
5.2 Governmental Approvals 10
5.3 Notice of Changes 11
5.4 Maintain Assets and Operations 11
5.5 Litigation and Claims 11
ARTICLE VI CONDITIONS TO PURCHASER'S OBLIGATIONS 12
6.1 Performance by Seller 12
6.2 Seller's Certificate 12
6.3 Governmental Approvals 12
6.4 Deliveries 12
6.5 Contract Assurances 12
ARTICLE VII CONDITIONS TO SELLER'S OBLIGATIONS 13
7.1 Performance by Purchaser 13
7.2 Purchaser's Certificate 13
7.3 Deliveries 13
ARTICLE VIII TERMINATION PRIOR TO CLOSING 13
8.1 Termination 13
8.2 Effect on Obligations 13
8.3 Survival 13
ARTICLE IX INDEMNIFICATION 14
ARTICLE X MISCELLANEOUS 14
10.1 Entire Agreement 14
10.2 Successors and Assigns 14
10.3 Expenses 14
10.4 Taking of Necessary Action 14
10.5 Invalidity 15
10.6 Counterparts 15
10.7 Headings 15
10.8 Construction and References 15
10.9 Modification and Waiver 15
10.10 Notices 15
10.11 Public Announcements 16
10.12 Governing Law; Interpretation 16
10.13 Personnel 16
10.14 Noncompetition 17
10.15 Records 17
10.16 Sublease of U.K. Office 17
Exhibit A - List of Assets
Exhibit B - List of Assumed Obligations
Exhibit C - Deleted
Exhibit D - Deleted
Exhibit E - Form of Assignment and ▇▇▇▇ of Sale
Exhibit F - List of Claims
Exhibit G - List of Insurance
Exhibit H - List of Employees
Exhibit I - Deleted
Exhibit J - List of Encumbrances to be Released at Closing
Exhibit K - Form of Assumption Agreement
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (this "Agreement") dated as of March 1, 1998,
by and among SCIENTIFIC SOFTWARE-INTERCOMP, INC., a Colorado corporation
("SSI"), SSI ▇▇▇▇▇▇▇, INC., a Texas corporation ("SSI-▇▇▇▇▇▇▇") and SCIENTIFIC
SOFTWARE-INTERCOMP U.K., LTD., a corporation organized under the laws of the
United Kingdom ("SSI-UK") (SSI, SSI-▇▇▇▇▇▇▇ and SSI-UK are hereinafter
collectively called "Seller"), whose address for purposes of this Agreement is
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and LICENERGY, INC.,
a Texas corporation ("Purchaser"), whose address is ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇. Seller and Purchaser are sometimes hereinafter
collectively referred to as the "Parties".
R E C I T A L S:
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A. Seller is the owner of the hereinafter described assets utilized by
the Pipeline Simulation Division of SSI ("P&F Division"); and
B. Seller desires to sell to Purchaser, and Purchaser desires to buy
from Seller, such assets, all in accordance with the terms of this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual representations, warranties,
covenants and agreements herein contained, and upon the terms and subject to the
conditions hereinafter set forth, the parties do hereby agree as follows:
ARTICLE I
DEFINITIONS
Capitalized terms used in this Agreement shall have the meanings given to
them in this Article I, unless defined elsewhere in this Agreement.
"Accounts Payable" shall mean those accounts payable more particularly
described in Part I of Exhibit B attached hereto.
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"Affiliate" shall mean with respect to any Person, an individual or entity
that, directly or indirectly, controls, is controlled by or is under common
control with such Person.
"Applicable Employee Obligations" shall mean (i) that portion of the P&F
Division's accrued employee sick leave and accrued annual leave liabilities (as
described in Part II of Exhibit B attached hereto) that is attributable to those
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employees of Seller that Purchaser elects to offer employment to pursuant to
Section 10.13 hereof, (ii) the accrued but unpaid sales commissions more
particularly described in Part III of Exhibit B attached hereto, and (iii) all
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severance liabilities (including accrued vacation) incurred by Seller in
connection with those technical employees of Seller that Purchaser elects not to
offer employment to pursuant to Section 10.13 hereof.
"Assets" shall mean all of the following described properties, rights,
interests and assets:
(a) the software more particularly described in Part I of Exhibit A
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attached hereto (the "Software");
(b) those contracts more particularly described in Part IIa. of Exhibit
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A attached hereto and those maintenance contracts more particularly described in
Part IIb. of Exhibit A attached hereto (collectively, the "Contracts");
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(c) all new software and/or consulting contracts, purchase orders and
maintenance agreements entered into by SSI's P&F Division between March 1, 1998
and the Closing Date (collectively, the "New Contracts");
(d) the computers, furniture, furnishings and other personal property
more particularly described in Part III of Exhibit A attached hereto (the
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"Personal Property");
(e) all work in progress, monies, rents, revenues, fees, accounts
receivable, profits, deposits, products, benefits and proceeds from or
attributable to the Software, the Contracts, the New Contracts or the Personal
Property including, but not limited to, those projected billed and unbilled
accounts receivable more particularly described in Part IV of Exhibit A attached
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hereto (such accounts receivable described in Part IV of Exhibit A being
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hereinafter called the "Accounts Receivable"), provided that there shall be
specifically excluded from the Assets and Accounts Receivable and reserved by
Seller (i) those accounts receivable listed on Part V of Exhibit A attached
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hereto, (ii) all accounts receivable billed by Seller up through the Closing
Date with respect to any Contract not identified in Part IV of Exhibit A and
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(iii) any previously billed accounts receivable that relate to the Software and
that are not included in the Accounts Receivable;
(f) all of SSI's right, title and interest in and to that certain
License Agreement dated September 13, 1996, by and between SSI and Kinesix
Corporation and the right to acquire all of SSI's right, title and interest in
and to the license for Stanford's MINOS optimization software;
(g) the benefit and the right to enforce all covenants, warranties,
guarantees and indemnities relating to the Software, the Contracts, the New
Contracts, the Personal Property or the Accounts Receivable and all security for
the payment or performance thereof;
(h) the Contract Rights and the Claims;
(i) the Incidental Rights; and
(j) each and every right, privilege and appurtenance in anywise
incident or appertaining to any of the properties, rights or interest described
in (a) through (h) above.
"Assumed Obligations" shall mean the Accounts Payable, the Applicable
Employee Obligations, the UPRC Obligation, the Warranty Obligations and all
obligations accruing under the Contracts and the New Contracts from and after
the Closing Date, to the extent such liabilities and obligations are not
liabilities or obligations which Seller has agreed to pay, be responsible for or
indemnify Purchaser against pursuant to the terms of this Agreement.
"Business Day" shall mean any day other than Saturday, Sunday or other day
on which federally chartered commercial banks in Houston, Texas are authorized
by law to close.
"Claims" shall mean all claims (including insurance and condemnation
claims) and causes of action of Seller against others with respect to the
Assets.
"Closing" shall have the meaning such term is given in Section 2.2 hereof.
"Closing Date" shall have the meaning such term is given in Section 2.2
hereof.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Contract Rights" shall mean all rights, titles, interests, benefits and
remedies in, to and under the Contracts and the New Contracts which under the
terms of the Contracts and the New Contracts are provided or stipulated to inure
to or be for the benefit of Seller, together with all other rights, titles,
interests, benefits and remedies of Seller in, to and under the Contracts and
the New Contracts.
"Default" shall mean, as to any party to this Agreement, a default by such
party in the performance of any of its material obligations hereunder and the
continuation of such default for a period of five (5) Business Days after
written notice is delivered m. Each of the parties that comprise Seller is duly
qualified or licensed to do business and is in good standing as a foreign
corporation in every jurisdiction in which the conduct of its business or the
ownership or leasing of its Assets requires it to be so qualified or licensed.
3.2 AUTHORITY. Each of the parties that comprise Seller has all
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requisite corporate power and authority to carry on its business as presently
conducted, to enter into this Agreement, and to perform its obligations
hereunder. The consummation of the transactions contemplated by this Agreement
will not (i) violate, or be in conflict with, (a) any provision of its charter,
bylaws or governing documents, or any agreement or instrument to which it is a
party or by which it is bound or (b) any Law applicable to Seller or the Assets,
or (ii) require the consent, authorization or approval of any third party.
3.3 EXECUTION AND DELIVERY. The execution, delivery and performance of
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this Agreement and the transactions contemplated hereunder, have been duly and
validly authorized by all requisite corporate action on the part of Seller.
3.4 BINDING AGREEMENT. This Agreement constitutes as of the date
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hereof and all documents and instruments required hereunder to be executed and
delivered by Seller at Closing will constitute on the Closing Date, valid, legal
and binding obligations of Seller enforceable against Seller in accordance with
their respective terms, except as such enforceability may be limited by or
subject to (a) any bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to creditors' rights generally, (b) general principles of
equity (regardless of whether such enforceability is considered in a proceeding
in equity or at law) and (c) public policy.
3.5 TITLE TO THE ASSETS. Except for those Encumbrances disclosed on
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Exhibit J hereto that shall be released at Closing, Seller has good and
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marketable title to and is possessed of the Assets, free and clear of all
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Encumbrances.
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3.6 OUTSTANDING OBLIGATIONS. Except to the extent included within the
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Assumed Obligations, all rentals, fees, payments and obligations due and payable
or performable on or prior to the Closing Date under or on account of the Assets
have been or will be duly paid, performed or provided for prior to the Closing
Date.
3.7 CONTRACTS. Each Contract is presently valid, subsisting and in
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full force and effect, no default now exists thereunder, Seller has not received
or given any notice of default or claimed default thereunder, and, except as
disclosed on Exhibit F attached hereto, Seller has no knowledge of any existing
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event or circumstance which with notice or passage of time or both could
constitute a default thereunder. The Assets are currently being operated,
maintained, and marketed in compliance with all terms and provisions of the
Contracts applicable thereto.
3.8 INTELLECTUAL PROPERTY. Seller owns, or is licensed or otherwise
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has the right to use, all patents, patent rights, trademarks, trademark rights,
trade names, trade name rights, service marks, service ▇▇▇▇ rights, copyrights
and other proprietary intellectual property rights and computer programs that
constitute the Software. Part I of Exhibit A attached hereto is a true and
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complete list of all of the Software and other intellectual property rights
owned by Seller and utilized by its P&F Division. No claims are pending or, to
the knowledge of Seller, threatened that Seller is infringing or otherwise
adversely affecting the rights of any Person with regard to any Software. To
the knowledge of Seller, no Person is infringing the rights of Seller with
respect to any Software. Except for those Encumbrances disclosed on Exhibit J
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hereto that shall be released at Closing, all of the Software that is owned by
Seller is owned free and clear of all Encumbrances and all Software that is
licensed by Seller is licensed pursuant to valid and existing license agreements
and such interests are not subject to any Encumbrances other than those under
the applicable license agreements. The consummation of the transactions
contemplated by this Agreement will not result in the loss of any Software.
3.9 VIOLATION OF LAWS. Seller, the Assets and Seller's ownership,
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maintenance, operation and marketing of the Assets are not in violation of any
Law applicable thereto; Seller has made, filed, obtained and/or paid all
filings, reports, permits, licenses, certificates, approvals and fees required
under applicable Law with respect to the Assets and Seller's ownership,
maintenance, operation and marketing of the Assets; and Seller has no knowledge,
and has not received any notice, of violation or claimed violation of any such
Law.
3.10 TAXES. All ad valorem, property, sales, gross receipts, excise,
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use, severance, employee, income, franchise and other taxes, as well as all
assessments and other governmental charges, penalties, interest and fines, which
have become due and payable prior to the Closing Date on or with respect to
Seller's business, the Assets, or Seller's ownership or operation of the Assets,
or which have been collected by Seller in connection with the Assets on behalf
of some governmental entity, have been properly paid or provision has been made
for the proper payment thereof prior to becoming delinquent; and all returns and
reports with respect to such matters have been duly and timely filed.
3.11 BANKRUPTCY. There are no bankruptcy, reorganization, or
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arrangement proceedings pending, being contemplated by or to the actual
knowledge of Seller threatened against Seller.
3.12 NO BROKERS. Except for the fee payable by Seller to ▇▇▇▇▇▇▇ &
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Company, no broker or finder has acted for or on behalf of Seller in connection
with this Agreement or the transactions contemplated by this Agreement, and no
broker or finder is entitled to any brokerage or finder's fee, or to any
commission, based in any way on agreements, arrangements or understandings made
by or on behalf of Seller.
3.13 NO CLAIMS. Except as shown on Exhibit F hereto, there are no
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claims, demands or suits, actions, proceedings or investigations pending or, to
Seller's knowledge, threatened before any court or governmental agency which
might result in a material impairment or loss of Seller's title to any part of
the Assets or the value thereof or which might materially hinder or impede the
consummation of this Agreement or the operation, maintenance or marketing of any
of the Assets, and Seller shall promptly notify Purchaser of any such matters
arising or threatened prior to Closing.
3.14 ACCURACY OF DISCLOSURES. All information and disclosures,
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including the lists of Software, Contracts, Personal Property and Accounts
Receivable, set forth in this Agreement or in any exhibits hereto or furnished
by Seller to Purchaser in connection herewith are accurate and complete in all
material respects.
3.15 INVESTMENT COMPANY. Seller (i) is not an investment company or a
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company controlled by an investment company within the meaning of the Investment
Company Act of 1940, as amended and (ii) is not subject in any respect to the
provisions of said act.
3.16 INSURANCE. Exhibit G lists all policies of risk insurance and all
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performance bonds and other performance security held or obtained by Seller
pertaining to the Assets or Seller's business relating to the Assets. Seller is
not a co-insurer under any policies of insurance listed on Exhibit G, except to
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the extent of the amount of deductible listed on Exhibit G applicable to such
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policies. No notice has been received from any insurance company that has
issued a policy insuring Seller with respect to any portion of the Assets (or
Seller's business relating thereto), or any board of fire underwriters (or other
body exercising similar functions) claiming any defects or deficiencies,
requiring the performance of any material repairs, replacements, alterations or
other work or requiring any changes in Seller's operations with respect to the
Assets.
3.17 NO UNDISCLOSED MATERIAL LIABILITIES. Seller is not a party to or
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bound by (i) any agreement, contract or commitment limiting the freedom of
Seller to own, operate, sell, transfer or otherwise dispose of any Asset or to
compete with any Person or in any geographic area or (ii) any agreement,
contract or commitment that Seller expects, or with the exercise of reasonable
business judgment would expect, to have a material adverse effect on the value
of any of its Assets, other than agreements, contracts or commitments expected
to result in a loss in the ordinary course of Seller's business.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to Seller as follows:
4.1 ORGANIZATION. Purchaser is a corporation duly organized, validly
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existing and in good standing under the laws of the State of Texas and has all
requisite corporate power and authority to carry on its business as it is now
being conducted and to execute, deliver and perform this Agreement and to
consummate the transactions contemplated hereby.
4.2 EXECUTION AND DELIVERY. The execution, delivery and performance of
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this Agreement and the transactions contemplated hereunder, have been duly and
validly authorized by all requisite corporate action on the part of Purchaser.
The consummation of the transactions contemplated by this Agreement will not
require the consent, authorization or approval of any third party.
4.3 BINDING AGREEMENT. This Agreement constitutes as of the date
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hereof and all documents and instruments required to be executed and delivered
by Purchaser at Closing will constitute on the Closing Date valid, legal and
binding obligations of Purchaser, enforceable against Purchaser in accordance
with their respective terms, except as such enforceability may be limited by or
subject to (a) any bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to creditors' rights generally, (b) general principles of
equity (regardless of whether such enforceability is considered in a proceeding
in equity or at law) and (c) public policy.
4.4 LITIGATION. There is no legal, judicial, administrative,
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governmental, arbitration or other action or proceeding or governmental
investigation pending against Purchaser or, to Purchaser's knowledge, threatened
against Purchaser, which seeks to enjoin or obtain damages in respect of the
consummation of the transactions contemplated hereby.
4.5 NO BROKERS. No broker or finder has acted for or on behalf of
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Purchaser in connection with this Agreement or the transactions contemplated by
this Agreement, and no broker or finder is entitled to any brokerage or finder's
fee, or to any commission, based in any way on agreements, arrangements or
understandings made by or on behalf of Purchaser.
ARTICLE V
COVENANTS OF SELLER
Seller covenants and agrees with Purchaser as follows:
5.1 ACCESS TO THE COMPANY. Seller shall afford to Purchaser and to the
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employees, agents, lenders, investors and authorized representatives of
Purchaser and to its counsel and accountants (collectively, the
"Representatives"), such reasonable access to the Assets, employees, officers,
offices, equipment, files, agreements, documents and books and records of the
P&F Division (including, without limitation, computer programs, tapes, and other
records), and the opportunity to make notes, abstracts and copies therefrom, as
may be requested by Purchaser in order that Purchaser may have full opportunity
to make such reasonable investigations as it shall desire with respect to the
Assets in connection with the transactions contemplated hereby.
5.2 GOVERNMENTAL APPROVALS. Seller shall use its best efforts, and
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shall cooperate with Purchaser, to obtain all permits, approvals, filings and
consents necessary or required to be obtained or made for the consummation by
Seller of the transactions contemplated by this Agreement under any applicable
federal law or the applicable laws of any state or foreign government having
jurisdiction over the transactions contemplated hereby.
5.3 NOTICE OF CHANGES. Seller shall promptly inform Purchaser in
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writing if Seller becomes aware of any change that shall have occurred or that
shall have been threatened (or any development that shall have occurred or that
shall have been threatened involving a prospective change) in the financial
condition, results of operations, business or Assets of the P&F Division that is
or with the exercise of reasonable business judgment would be expected to have a
material adverse effect on the condition of the P&F Division or the Assets,
provided that such notification requirement shall not include notice of losses
incurred by the P&F Division in the ordinary course of its business. Seller
shall promptly inform Purchaser in writing if any representation or warranty
made by Seller in this Agreement shall cease to be accurate.
5.4 MAINTAIN ASSETS AND OPERATIONS. During the period from the date of
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this Agreement through the Closing Date, Seller shall carry on the P&F Division
business in the usual, regular and ordinary course in a good and diligent manner
consistent with sound business practices and in compliance with all of its
contractual commitments and all applicable Laws. Seller shall use all
reasonable efforts to maintain and preserve its business organization in tact,
retain its present employees and consultants and maintain its relationship with
suppliers, customers and others having business relations with it. Seller
shall, unless otherwise consented to in writing by Purchaser, (i) maintain and
keep the Assets in their present condition and working order, ordinary wear and
tear and depreciation excepted, (ii) maintain in full force and effect all
policies of insurance, performance bonds or other performance security covering
the Assets or Seller's business relating to the Assets now maintained by
Seller, (iii) preserve in full force and effect all Contracts, Contract Rights,
Claims and Incidental Rights and shall not modify, terminate, compromise or
release any of same, (iv) not enter into any new agreements or commitments
affecting or relating to any of the Assets (including any New Contracts, but
specifically excluding the renewal of any maintenance contracts described in
Part IV of Exhibit A hereto which shall not require Purchaser's consent), (v)
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not ▇▇▇▇ customers under the maintenance contracts described in Part IIb. of
Exhibit A attached hereto prior to the billing date specified for each such
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maintenance contract in the last column of Part IIb. of Exhibit A, (vi) not
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reallocate any resources currently dedicated to the performance of work under
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the Contracts, (vii) not incur, or agree to incur, any contractual obligation or
liability (absolute or contingent) with respect to the Assets, except current
liabilities incurred in the ordinary course of business, (viii) not encumber,
sell, mortgage, release, abandon or otherwise dispose of any of the Assets,
except items of personal property replaced by equivalent property or consumed in
normal operations, (ix) cause all liabilities of Seller incurred with respect to
or affecting the Assets to be paid in the ordinary course of business, and (x)
maintain in good order and condition all files, books, records, documents and
papers of Seller relating to or evidencing the Assets and continue to maintain
all accounting procedures and books of account with respect to the Assets in
accordance with GAAP.
5.5 LITIGATION AND CLAIMS. Seller shall promptly inform Purchaser in
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writing of any litigation, or of any claim or controversy or contingent
liability of which Seller becomes aware that might reasonably be expected to
become the subject of litigation, against Seller or affecting any of the Assets.
ARTICLE VI
CONDITIONS TO PURCHASER'S OBLIGATIONS
The obligations of Purchaser to purchase the Assets shall be subject to the
satisfaction (or waiver by Purchaser) on or prior to the Closing Date of all of
the following conditions:
6.1 PERFORMANCE BY SELLER. The representations and warranties of
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Seller set forth in this Agreement shall be true and correct at and as of the
Closing Date in all material respects. Seller shall have performed and complied
in all material respects with all covenants, agreements and conditions required
by this Agreement to be performed by or complied with by Seller prior to or at
Closing.
6.2 SELLER'S CERTIFICATE. Purchaser shall have received a certificate
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dated as of the Closing Date, executed by a duly authorized officer of Seller,
to the effect that the representations and warranties made under Article III
hereof are true at and as of the Closing Date.
6.3 GOVERNMENTAL APPROVALS. Purchaser shall have received all
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consents, approvals and authorizations that Purchaser may be required to obtain
under applicable Law in connection with the acquisition of the Assets.
6.4 DELIVERIES. Seller shall have delivered, or caused to be
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delivered, to Purchaser each of the items set forth in Section 2.4(a) and (c)
hereof.
6.5 CONTRACT ASSURANCES. Purchaser shall have received for each of the
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Contracts (specifically excluding, however, the maintenance contracts described
in Part IIb. of Exhibit A) for which Purchaser requests it, customer estoppel
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letters or other assurances reasonably satisfactory to Purchaser to the effect
that (i) the Contracts are currently effective, (ii) the customers are not aware
of any outstanding material claims or material unsatisfied obligations for work
completed thereunder (provided that any such letter shall expressly state that
the customer in no way waives any rights or claims under the Contract as a
result of its response in the letter) and (iii) the customers under such
Contracts consent to the assignment thereof to Purchaser and agree to continue
to comply with and honor the existing terms of the Contracts after Purchaser
acquires the Assets.
ARTICLE VII
CONDITIONS TO SELLER'S OBLIGATIONS
The obligations of Seller to sell the Assets shall be subject to the
satisfaction (or waiver by Seller) on or prior to the Closing Date of all the
following conditions:
7.1 PERFORMANCE BY PURCHASER. The representations and warranties of
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Purchaser set forth in this Agreement shall be true and correct at and as of the
Closing Date in all material respects. Purchaser shall have performed and
complied in all material respects with all covenants, agreements and conditions
required by this Agreement to be performed by or complied with by Purchaser
prior to or at Closing.
7.2 PURCHASER'S CERTIFICATE. Seller shall have received a certificate
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dated as of the Closing Date, executed by a duly authorized officer of
Purchaser, to the effect that the representations and warranties made under
Article IV are true at and as of the Closing Date.
7.3 DELIVERIES. Purchaser shall have delivered, or caused to be
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delivered, to Seller each of the items set forth in Section 2.4(b) and (c)
hereof.
ARTICLE VIII
TERMINATION PRIOR TO CLOSING
8.1 TERMINATION. This Agreement may be terminated at any time prior to
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the Closing (a) by the mutual written consent of Purchaser and Seller, (b) by
Purchaser in writing if Seller shall be in Default and such Default shall not
have been cured or remedied, (c) by Seller in writing if Purchaser shall be in
Default and such Default shall not have been cured or remedied or (d) by either
Seller or Purchaser in writing, if there shall be in effect an order of a court
of competent jurisdiction prohibiting the consummation of the transactions
contemplated hereby.
8.2 EFFECT ON OBLIGATIONSError! Bookmark not defined.. Termination of
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this Agreement pursuant to this Article shall terminate all obligations of the
parties hereunder, except for the obligations under Section 10.3 hereof and
except for the continuing obligations of SSI and Purchaser under the existing
Confidentiality Agreement between SSI and Purchaser; provided, however, that
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termination pursuant to clauses (b) or (c) of Section 8.1 hereof shall not
relieve any Defaulting party from any liability to the other party hereto, it
being expressly agreed that such other party may pursue any and all remedies it
may have against the Defaulting party as a result of such Default, including an
action for damages.
8.3 SURVIVAL. All of the representations, warranties, covenants and
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indemnities of the Parties as described in this Agreement, to the extent not
fully performed prior to Closing, shall survive the Closing.
ARTICLE IX
INDEMNIFICATION
Seller agrees to indemnify, defend and hold Purchaser and its directors,
officers, shareholders and controlling Persons harmless from and against any and
all losses, liabilities, damages, costs and expenses (collectively, the
"Indemnified Liabilities") that Purchaser and its directors, officers,
shareholders and controlling Persons may incur or become subject to arising out
of or due to (i) any inaccuracy of any representation or the breach of any
warranty, covenant, undertaking or other agreement of Seller contained in this
Agreement, (ii) any act or omission of Seller prior to the Closing Date or (iii)
except for the Assumed Obligations, any and all claims, demands and causes of
action against Seller or the Assets relating to or arising out of any facts or
circumstances occurring prior to the Closing Date.
ARTICLE X
MISCELLANEOUS
10.1 ENTIRE AGREEMENT. This Agreement and the other agreements
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contemplated hereby constitute the sole understanding of the parties with
respect to the matters provided for herein and supersede any previous agreements
and understandings between the parties with respect to the subject matter
hereof. No amendment, modification or alteration of the terms or provisions of
this Agreement shall be binding unless the same shall be in writing and duly
executed by Seller and Purchaser.
10.2 SUCCESSORS AND ASSIGNS. The terms and conditions of this
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Agreement shall inure to the benefit of and be binding upon the parties hereto
and their respective successors and assigns. Purchaser shall have the right to
assign this Agreement to any Affiliate of Purchaser. Except as permitted in the
immediately preceding sentence, this Agreement may not be assigned by any party
without the prior written consent of the other party hereto.
10.3 EXPENSES. Whether or not the transactions contemplated by this
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Agreement are consummated, other than as expressly provided for herein, each of
the parties hereto shall pay the fees and expenses of its respective counsel,
accountants and other experts, and all other expenses incurred by such party
incident to the negotiation, preparation and execution of this Agreement and
consummation of the transactions contemplated hereby.
10.4 TAKING OF NECESSARY ACTION. After Closing, each of the parties
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hereto agrees to take or cause to be taken all action and to do or cause to be
done all things reasonably requested by the other party to consummate and make
effective the transactions contemplated by this Agreement. If monies are
received by either party hereto which, under the terms hereof, belong to the
other party, the same shall be immediately paid over to such other party. Each
party shall cooperate with the other in good faith to help the other satisfy its
obligations hereunder.
10.5 INVALIDITY. If any term or other provision of this Agreement is
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invalid, illegal, or incapable of being enforced by any rule of law, or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in an acceptable manner to
the end that transactions contemplated hereby are fulfilled to the extent
possible.
10.6 COUNTERPARTS. This Agreement may be executed in one or more
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counterparts, each of which shall for all purposes be deemed to be an original
and all of which shall constitute the same instrument.
10.7 HEADINGS. The headings of the Sections and paragraphs of this
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Agreement are included for convenience only and shall not be deemed to
constitute part of this Agreement or to affect the construction hereof or
thereof.
10.8 CONSTRUCTION AND REFERENCES. Words used in this Agreement,
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regardless of the number or gender specifically used, shall be deemed and
construed to include any other number, singular or plural, and any other gender,
masculine, feminine or neuter, as the context shall require. Unless otherwise
specified, all references to this Agreement to Sections, paragraphs or clauses
are deemed references to the corresponding Sections, paragraphs or clauses in
this Agreement, and all references to this Agreement to Schedules are references
to the corresponding Schedules attached to this Agreement.
10.9 MODIFICATION AND WAIVER. Any of the terms or conditions of this
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Agreement may be waived in writing at any time by the party which is entitled to
the benefits thereof. No wavier of any of the provisions of this Agreement
shall be deemed to or shall constitute a waiver of any other provisions hereof
(whether or not similar).
10.10 NOTICES. Any notice, request, instruction or other document to
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be given hereunder by any party hereto to any other party shall be in writing
and delivered personally, via telecopy (with receipt confirmed) or by registered
or certified mail, postage prepaid,
if to Seller, to: Scientific Software-Intercomp, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇, President
Fax: ▇▇▇-▇▇▇-▇▇▇▇
with copies to: ▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
if to the Purchaser, to: LICENERGY, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
Fax: ▇▇▇-▇▇▇-▇▇▇▇
with copies to: ▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
or at such other address for a party as shall be specified by like notice. Any
notice which is delivered personally in the manner provided herein shall be
deemed to have been duly given to the party to whom it is directed upon actual
receipt by such party (or its agent for notices hereunder). Any notice which is
addressed and mailed in the manner herein provided shall be conclusively
presumed to have been duly given to the party to which it is addressed at the
close of business, local time of the recipient, on the third day after the day
it is so placed in the mail. Any notice which is sent by telecopy shall be
deemed to have been duly given to the party to which it is addressed upon
telephonic confirmation of the same as provided herein. A copy of any notices
delivered by telecopy shall promptly be mailed in the manner herein provided to
the party to which such notice was given.
10.11 PUBLIC ANNOUNCEMENTS. Neither Seller nor Purchaser shall make
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any public statements, including, without limitation, any press releases, with
respect to this Agreement and the transactions contemplated hereby without the
prior written consent of the other party (which consent may not be unreasonably
withheld), except as may be required by law. Notwithstanding anything contained
in the previous sentence to the contrary, Purchaser shall not be required to
obtain Seller's prior written consent to any such public statements that are
made in connection with the public stock offering of LICENERGY, A/S.
10.12 GOVERNING LAW; INTERPRETATION. This Agreement shall be construed
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in accordance with and governed by the laws of the State of Texas.
10.13 PERSONNEL. As of the Closing Date, Seller shall have withheld
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for each payment made to any of Seller's employees whose work relates to the
Assets the amount of all taxes, including, but not limited to, income tax,
F.I.C.A., workmen's compensation and other deductions required to be withheld
and shall have paid the same over to the proper governmental authority.
Attached hereto as Exhibit H is a complete list of all persons currently
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employed by, or under contract as a consultant for Seller's P&F Division.
Purchaser may, but shall have no obligation to, offer employment to any of
Seller's employees whose work relates to the Assets. Seller shall indemnify and
hold Purchaser harmless from and against any and all liability arising (i) under
any pension plan, welfare plan, or benefit policy or arrangement maintained or
sponsored by Seller for its employees and (ii) with respect to any employees
hired by Purchaser, from any claims for employee injuries or health problems
occurring or commencing prior to Closing which are related to their work in
connection with the Assets. Seller warrants and represents that it is not party
to any collective bargaining agreement covering or relating to the employees of
Seller whose work relates to the Assets.
10.14 NONCOMPETITION. In consideration for Purchaser's execution of
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this Agreement, Seller agrees that neither Seller nor any Affiliate of Seller
shall, for a period of five (5) years following the Closing (the "Noncompetition
Period"), directly or indirectly, engage or participate in any business that is
in competition in any manner whatsoever with the business that was conducted by
the P&F Division (the "Competing Business"). Seller further covenants and
agrees that during the Noncompetition Period Seller shall not, and shall cause
its Affiliates not to, (i) directly or indirectly, on its own behalf or on
behalf of other Persons, solicit, divert or appropriate or attempt to solicit,
divert or appropriate, to or for a Competing Business any Person who is a
customer of Seller's P&F Division, or (ii) directly or indirectly, on its own
behalf or on behalf of other Persons, solicit or take away, or attempt to
solicit or take away, any employees of Seller that Purchaser hires pursuant to
Section 10.13 hereof; provided, however, except for the restriction contained in
(ii) above, the restrictions contained in this Section 10.14 shall not apply to
any third party that acquires all or substantially all of the remaining assets
or acquires all of the stock of SSI.
10.15 RECORDS. All of the books, records, files, contracts and other
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documents and materials described in the definition of "Incidental Rights" that
are to be transferred to Purchaser at Closing (collectively, the "Records")
shall be the original copies thereof, except that Seller shall retain the
original copies of its accounting records. Purchaser shall afford Seller
reasonable access to the Records as requested by Seller. If Purchaser desires
to dispose of any such Records, Purchaser shall so notify Seller and Seller
shall have the right, at its option, to take delivery of such Records (at
Seller's expense). If Seller elects not to receive such Records or fails to
respond to Purchaser's notice within thirty (30) days after receipt thereof,
then Purchaser may dispose of such Records within its discretion.
10.16 SUBLEASE OF U.K. OFFICE. Seller and Purchaser recognize that
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Purchaser is interested in subleasing a portion of SSI-UK's office space to
accommodate those employees of Seller that Purchaser elects to hire pursuant to
Section 10.13 hereof. Seller and Purchaser hereby agree that, so long as Seller
is not prohibited from doing so, at Closing, Seller and Purchaser shall enter
into a sublease agreement, in form mutually satisfactory to Seller and
Purchaser, whereby Purchaser shall sublease a portion of SSI-UK's office space
for a prorated rental, all as more particularly set forth in such sublease
agreement.
IN WITNESS WHEREOF, each of the parties hereto have caused this Agreement
to be executed on its behalf as of the date first above written.
SELLER:
SCIENTIFIC SOFTWARE-INTERCOMP, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇
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Title: President/CEO
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SSI ▇▇▇▇▇▇▇, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇
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Title: President/CEO
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SCIENTIFIC SOFTWARE-INTERCOMP U.K., LTD.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇
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Title: President/CEO
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PURCHASER:
LICENERGY, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Title: President
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LICENERGY, A/S hereby joins in the execution of this Agreement to
unconditionally guarantee the performance of all obligations of LICENERGY, INC.
and its Affiliates (in the event of an assignment of this Agreement to any such
Affiliate) under the terms of this Agreement. In the event of a default by
LICENERGY, INC. (or its Affiliate) in the performance of any such obligations,
recovery may be had against LICENERGY, A/S without requiring the prosecution of
the claim against LICENERGY, INC. (or its Affiliate).
LICENERGY, A/S
By: /s/ Gregers Larnaes
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Name: Gregers Larnaes
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Title: Chairman of the Board
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By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇.
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Title: Director
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