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Asset Purchase Agreement

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Title:

Asset Purchase Agreement

Entities:

Logility, Inc.

Date:

2004

Size:

220KB total

Price:

$56

ID:

#1118888

► Purchase & Sale ► Purchase ► Asset Purchase Agreements
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EXECUTION

ORIGINAL

ASSET PURCHASE AGREEMENT

Dated as of September 30, 2004

by and among

DEMAND MANAGEMENT, INC.

(a Georgia corporation)

(as Purchaser)

and

DEMAND MANAGEMENT, INC.

(a Missouri corporation)

(as Seller)

and

STEPHEN JOHNSTON and

MICHAEL CAMPBELL

(as Shareholders)

TABLE OF CONTENTS


			Page
1.	DEFINITIONS		1
	1.1	Defined Terms	1
	1.2	Additional Defined Terms	7
	1.3	Construction	9
	1.4	Schedules and Exhibits	9
	1.5	Knowledge	10

2.	SALE AND TRANSFER OF ASSETS; CLOSING		10
	2.1	Assets To Be Sold	10
	2.2	Excluded Assets	11
	2.3	Consideration for the Assets	12
	2.4	Liabilities	13
	2.5	Allocation	15
	2.6	Closing	15
	2.7	Closing Obligations	15
	2.8	Calculation and Payment of Any Adjustment Amount	17
	2.9	Adjustment Procedure	18
	2.10	Consents	19

3.	REPRESENTATIONS OF SELLER		19
	3.1	Authority and Enforceability	19
	3.2	Consents and Approvals; No Violations	20
	3.3	Existence and Good Standing of DMI	20
	3.4	Capital Stock	21
	3.5	Subsidiaries and Investments	21
	3.6	Financial Statements; Accounts Receivable; Working Capital	23
	3.7	Liabilities	24
	3.8	Books and Records	24
	3.9	Title to Personal Properties	25
	3.10	Owned Real Property	25
	3.11	Leased Real Property	25
	3.12	Material Contracts	26
	3.13	Litigation	27
	3.14	Taxes	27
	3.15	Insurance	29
	3.16	Intellectual Property	30
	3.17	Compliance with Laws	34
	3.18	Suppliers, VARs, and Customers	34
	3.19	Employment Relations	35
	3.20	Employee Benefit Plans	36
	3.21	Environmental Laws and Regulations	41
	3.22	Interests in Clients, Suppliers, Etc.	41


	3.23	Bank Accounts and Powers of Attorney	42
	3.24	Permits	42
	3.25	No Changes Since Balance Sheet Date	42
	3.26	Disclosure	45
	3.27	Government Contracts	45
	3.28	Warranty Claims	45
	3.29	Brokers or Finders Fees	46

4.	REPRESENTATIONS OF NEWCO		46
	4.1	Existence and Good Standing of NEWCO; Power and Authority	46
	4.2	Consents and Approvals; No Violations	47
	4.3	Brokers or Finders Fees	47

5.	COVENANTS OF DMI		47
	5.1	Conduct of Business of DMI	47
	5.2	Exclusive Dealing	50
	5.3	Review of DMI	51
	5.4	Commercially Reasonable Efforts	51
	5.5	Public Announcements	52
	5.6	Notification of Certain Matters	52
	5.7	Intercompany Accounts	52
	5.8	Noncompetition; Nonsolicitation; Nondisclosure; Nondisparagement	52
	5.9	Non-Solicitation of Employees	55
	5.10	Employee Matters	55

6.	CONDITIONS TO NEWCOS OBLIGATIONS		55
	6.1	Truth of Representations and Warranties	55
	6.2	Performance of Agreements	56
	6.3	Opinion of DMIs Counsel	56
	6.4	Good Standing and Other Certificates	56
	6.5	No Material Adverse Change	56
	6.6	No Litigation	56
	6.7	No Injunctions	57
	6.8	Other Consents and Approvals	57
	6.9	Statutes; Orders	57
	6.10	Proceedings	57
	6.11	Employment Agreements	57
	6.12	Amended Returns	57
	6.13	Prior Tax Agreements	57
	6.14	Landlord Consents; Estoppel Certificates	57
	6.15	Customer Relationships	58

7.	CONDITIONS TO DMIS OBLIGATIONS		58
	7.1	Truth of Representations and Warranties	58
	7.2	Performance of Agreements	58
	7.3	No Injunctions	58
	7.4	Governmental Approvals	58


	7.5	Statutes; Orders	58
	7.6	Proceedings	58

8.	ADDITIONAL COVENANTS OF PARTIES		59
	8.1	Employees And Employee Benefits	59
	8.2	Payment Of All Taxes Resulting From Sale Of Assets By DMI	61
	8.3	Payment Of Other Retained Liabilities	61
	8.4	Restrictions On DMI Dissolution And Distributions	62
	8.5	Removing Excluded Assets	62
	8.6	Reports And Returns	62
	8.7	Assistance In Proceedings	62
	8.8	Customer And Other Business Relationships	62
	8.9	Retention Of And Access To Records	63
	8.10	Further Assurances	63
	8.11	Maintenance	63
	8.12	Name Change	63

9.	SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION		64
	9.1	Survival of Representations	64
	9.2	Indemnification	64
	9.3	Indemnification Procedure	65
	9.4	Third Party Claims	66

10.	TERMINATION AND ABANDONMENT		68
	10.1	Termination	68
	10.2	Effect of Termination	69

11.	MISCELLANEOUS		69
	11.1	Expenses	69
	11.2	Governing Law	69
	11.3	Jurisdiction	69
	11.4	Notices	70
	11.5	Assignment; Parties in Interest	71
	11.6	Counterparts	71
	11.7	Entire Agreement	71
	11.8	Amendments	71
	11.9	Severability	71
	11.10	Third Party Beneficiaries	72
	11.11	No Strict Construction	72
	11.12	Waiver of Jury Trial	72


Schedule 2.1(x)		Claims Against Third Parties Relating to the Assets
Schedule 2.2(iv)		Deposits, Prepaid Expenses, and Claims for Refunds and Rights to Offset
Schedule 2.2(xi)		Excluded Property and Assets
Schedule 2.3(c)(i)		Accounts of DMI

iii


Schedule 2.4(a)(iii)		Liability to Customers for Nondelinquent Orders
Schedule 2.4(a)(vi)		Other Liability of DMI
Schedule 2.5		Purchase Price Allocation
Schedule 3.2(a)		Exceptions to Consents and Approvals
Schedule 3.2(b)		Exceptions for Filings and Approvals
Schedule 3.5(a)		States of Formation of DMIs Subsidiaries
Schedule 3.5(b)		Jurisdictions Where Subsidiaries are Qualified to Do Business
Schedule 3.5(c)		Capitalization of Subsidiaries
Schedule 3.5(d)		Equity Ownership of DMI and Subsidiaries
Schedule 3.9		Title to Personal Properties
Schedule 3.10		Owned Real Property
Schedule 3.11		Leased Real Property
Schedule 3.12(a)		Material Contracts
Schedule 3.13		Litigation
Schedule 3.14(a)		Tax Returns
Schedule 3.14(b)		Payment of Taxes
Schedule 3.14(c)(i)		Tax Matters Audit or Examination by Tax Authorities
Schedule 3.14(c)(ii)		Tax Matters Agreements or Waivers Relating to Payment or Collection
Schedule 3.14(c)(v)		Tax Matters Other Jurisdictions
Schedule 3.14(d)(i)		Report of Alston & Bird LLP re: International Tax; State and Local Tax
Schedule 3.14(d)(ii)		Exceptions to International Tax; State and Local Tax
Schedule 3.15		Insurance Policies and Pending Claims
Schedule 3.16(a)		Intellectual Properties Owned by DMI
Schedule 3.16(b)		Intellectual Property Licensed by DMI
Schedule 3.16(c)		Licensee License Agreements
Schedule 3.16(e)		Exceptions to Registrations
Schedule 3.16(h)		Exceptions to Rights to Use
Schedule 3.16(i)		Notice of Claims
Schedule 3.16(j)		Claims Made
Schedule 3.16(l)		Source Codes
Schedule 3.16(m)		Software
Schedule 3.16(n)		Exceptions to Rights to Internet Domain Names
Schedule 3.18(a)		Suppliers
Schedule 3.18(b)		VARs
Schedule 3.18(c)		Customers
Schedule 3.20(a)		Employee Benefit Plans
Schedule 3.21		Environmental Laws and Regulations
Schedule 3.22		Interests in Clients, Suppliers, Etc.
Schedule 3.23		Bank Accounts and Powers of Attorney
Schedule 3.24		Permits and Pending Applications
Schedule 3.25		Material Adverse Changes
Schedule 3.27		Government Contracts
Schedule 3.28		Warranty Claims
Schedule 4.2(a)		Exceptions to Consents and Approvals NEWCO
Schedule 4.2(b)		Exceptions to Filings and Approvals NEWCO
Schedule 6.11		Persons Executing Employment Agreements


Exhibit 2.7(a)(i)		Bill of Sale
Exhibit 2.7(a)(ii)		Assignment and Assumption Agreement
Exhibit 2.7(a)(iii)		Assignment and Assumption of Lease
Exhibit 2.7(a)(iv)(A)		Assignment of Copyrights
Exhibit 2.7(a)(iv)(C)		Assignment of Service Marks and Trademarks
Exhibit 2.7(a)(vi)		Employment Agreement Michael Campbell
Exhibit 2.7(a)(vii)		Escrow Agreement
Exhibit 6.3		Form of DMIs Counsel Legal Opinion
Exhibit 9.3(a)		Certificate - Indemnification

ASSET PURCHASE AGREEMENT

THIS ASSET PURCHASE AGREEMENT (this Agreement) dated as of September 30, 2004, is by and among:

(i)

Demand Management, Inc., a Georgia corporation (NEWCO), which is a wholly-owned subsidiary of Logility, Inc., a Georgia corporation;

(ii)

Demand Management, Inc., a Missouri corporation (DMI);

(iii)

Stephen Johnston, a resident of the State of Missouri (Johnston); and

(iv)

Michael Campbell, a resident of the State of Missouri (Campbell).

Johnston and Campbell may be individually referred to as a Shareholder or collectively as the Shareholders. NEWCO, DMI, and the Shareholders may be referred to individually as a Party or collectively as the Parties.

W I T N E S S E T H:

WHEREAS, Johnston and Campbell own collectively twenty thousand (20,000) shares of the common stock, par value one dollar ($1.00) per share, of DMI, which shares constitute one hundred percent (100%) of the issued and outstanding shares of capital stock of DMI;

WHEREAS, DMI desires to sell, and NEWCO desires to purchase, certain assets of DMI for the consideration and on the terms set forth in this Agreement;

NOW, THEREFORE, in consideration of the premises and the mutual covenants and promises hereinafter contained, and other good and valuable consideration, the receipt and sufficiency of which the Parties hereby acknowledge, the Parties, intending to be legally bound, hereby agree as follows:

1. DEFINITIONS.

1.1 Defined Terms. When used in this Agreement, the following terms shall have the respective meanings specified therefor below.

Best Efforts shall mean the efforts that a prudent Person desirous of achieving a result would use in similar circumstances to achieve that result as expeditiously as possible; provided, however, that a Person required to use Best Efforts under this Agreement will not be thereby required to take actions that would result in a material adverse change in the benefits to such Person of this Agreement and the transactions contemplated by this Agreement or to dispose of or make any change to its business, expend any material funds or incur any other material burden.

Breach shall mean any breach of, or any inaccuracy in, any representation or warranty or any breach of, or failure to perform or comply with, any covenant or obligation, in or of this Agreement or any other Contract, or any event that with the passing of time or the giving of notice, or both, would constitute such a breach, inaccuracy, or failure.

Business Day shall mean any day, other than a Saturday, Sunday or a day on which banks located in Atlanta, Georgia, shall be authorized or required by law to close.

Code shall mean the Internal Revenue Code of 1986, as amended from time to time and the regulations promulgated and the rulings issued thereunder. Section references to the Code are to the Code, as in effect at the date of this Agreement and any subsequent provisions of the Code, amendatory thereof, supplemental thereto or substituted therefor.

DMIs Intellectual Property shall mean any Intellectual Property or rights thereto, owned by DMI or any of its Subsidiaries or used or held for use in connection with the business of DMI or any of its Subsidiaries.

DMIs Property shall mean any real property and improvements owned (directly, indirectly, or beneficially), leased, used, operated or occupied by DMI or its Subsidiaries.

Environmental, Health and Safety Liabilities shall mean any cost, damages, expense, liability, obligation, or other responsibility arising from or under any Environmental Law or any other Law, including those consisting of or relating to:

(i)

any environmental, health, or safety matter or condition (including on-site or off-site contamination, occupational safety and health and regulation of any chemical substance or product);

(ii)

any fine, penalty, judgment, award, settlement, Proceeding, damages, loss, claim, demand, or response, remedial or inspection cost or expense arising under any Environmental Law or Occupational Safety and Health Law;

(iii)

financial responsibility under any Environmental Law or other Law for cleanup costs or corrective action, including any cleanup, removal, containment, or other remediation or response actions (Cleanup) required by any Environmental Law or other Law (whether or not such Cleanup has been required or requested by any Governmental or Regulatory Authority or any other Person) and for any natural resource damages; or

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