LLC Interest Purchase Agreement

Exhibit 10.1


EXECUTION COPY


LLC INTEREST PURCHASE AGREEMENT


Dated as of May 9 , 2005

Between


ENOVIA CORP.,

SoftSRM, LLC,


i2 TECHNOLOGIES US, INC.


and


i2 TECHNOLOGIES, INC.


LLC INTEREST PURCHASE AGREEMENT


This LLC Interest Purchase Agreement dated as of May 9, 2005 (as amended or otherwise modified, the " Agreement" ) is between ENOVIA CORP. , a Delaware corporation (the " Buyer" ), SoftSRM, LLC , a Delaware limited liability company (the " Company" ), i2 TECHNOLOGIES US, INC ., a Nevada corporation (the " Seller" ) and i2 TECHNOLOGIES, INC., a Delaware corporation (" Seller Parent" ).

RECITALS

WHEREAS, Seller Parent, through the Seller, organized the Company for the purpose of developing, together with Dassault Syste8mes SA, a French corporation (" DS Parent" ), Sourcing for Direct Material (" SDM" ) solutions by integrating relevant parts of DS Parent' s Products Lifecycle Management (" PLM" ) solutions with Seller Parent' s Supply Relationship Management (" SRM" ) solution to create SDM solutions;


WHEREAS, DS Parent, Seller and the Company have entered into a Perpetual Source Code License Agreement dated even date herewith (the " License Agreement" ) and a Maintenance and Support Agreement also dated even date herewith (the " Support Agreement" ) to govern such relationship and such agreement represents a substantial portion of the value of the Company to the Buyer;

WHEREAS, the Seller is the record and beneficial owner of all of the outstanding limited liability company interests of the Company (the " Purchased Interests" ); and

WHEREAS, the Buyer desires to purchase from the Seller, and the Seller desires to sell to the Buyer, all of the Purchased Interests upon the terms and subject to the conditions set forth in this Agreement.


NOW THEREFORE, in consideration of the premises and mutual promises herein made, and in consideration of the representations, warranties and covenants herein contained, the Buyer, the Company, the Seller and Seller Parent hereby agree as follows:


1. DEFINITIONS; CERTAIN RULES OF CONSTRUCTION.

As used herein, the following terms will have the following meanings:


" Action" means any claim, action, cause of action or suit (whether in contract or tort or otherwise), litigation (whether at law or in equity, whether civil or criminal), controversy, assessment, arbitration, investigation, hearing, charge, complaint, demand, notice or proceeding to, from, by or before any Governmental Authority.


" Acquired Companies" means, collectively, the Company and DevCo.


" Affiliate" with respect to any specified Person at any time means, (a) each Person directly or indirectly controlling, controlled by or under direct or indirect common control with such specified Person at such time, (b) each Person who is at such time an officer or director of, or

direct or indirect beneficial holder of at least 20% of any class of the Equity Interests of, such specified Person, (c) each Person that is managed by a common group of executive officers and/or directors as such specified Person, (d) the Members of the Immediate Family (i) of each officer, director or holder described in clause (b) and (ii) if such specified Person is an individual, of such specified Person and (e) each Person of which such specified Person or an Affiliate (as defined in clauses (a) through (d)) thereof will, directly or indirectly, beneficially own at least 20% of any class of Equity Interests at such time.


" Ancillary Agreements" means the License Agreement, the Support Agreement, the Contractor Agreements, and the Intercompany Agreement.


" Budget" means the expense budget agreed to between the parties and attached hereto as Schedule 1.1 with respect to the organization of the Company and its operating expenses prior to the Closing Date.


" Business" means the design, development, marketing and sale of integrated SRM (Supplier Relationship Management) and PLM (Product Lifecycle Management) software applications.

" Business Day" means any weekday other than a weekday on which banks in Dallas, Texas, Paris, France, or Bangalore, India are authorized or required to be closed.


" Buyer Expenses" means the expenses with respect to the organization of the Company and its operation prior to the Closing Date actually incurred and documented by DS Parent and its Subsidiaries in accordance with the Budget but shall not include any such expenses that exceed the amounts set forth in the Budget or any such expenses invoiced to and paid by an Acquired Company.

" Code" means the U.S. Internal Revenue Code of 1986, as amended.


" Company Technology" means any and all inventions, works, discoveries, innovations, know-how, information (including ideas, research and development, know-how, formulas, compositions, processes and techniques, data, designs, drawings, specifications, customer and supplier lists, pricing and cost information, business and marketing plans and proposals, documentation and manuals), computer software, firmware, computer hardware, integrated circuits and integrated circuit masks, electronic, electrical and mechanical equipment and all other forms of technology, including improvements, modifications, works in process, derivatives or changes, whether tangible or intangible, embodied in any form, whether or not protectible or protected by patent, copyright, mask work right, trade secret law or otherwise, and all documents and other materials recording any of the foregoing used or useful in connection with the Business and any and all Intellectual Property in any and all such technology.

" Compensation" means, with respect to any Person, all salaries, compensation, remuneration, bonuses or benefits of any kind or character whatever (including issuances or grants of Equity Interests), made directly or indirectly by an Acquired Company to such Person or Affiliates of such Person.


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" Contemplated Transactions" means, collectively, the transactions contemplated by this Agreement, including (a) the sale and purchase of the Purchased Interests and (b) the execution, delivery and performance of the Ancillary Agreements.

" Contractor Agreements" means the form of Vendor Services Agreement and attached Statement of Work between i2 India and Newco and the form of Vendor Services Agreement and attached Statement of Work between the Seller and Newco substantially in the forms of Exhibits 1.1.1 (a) and 1.1.1(b) with the individuals identified on Schedule 3.18(a) as being contracted by i2 India or the Seller, as the case may be, to Newco.


" Contractual Obligation" means, with respect to any Person, any contract, agreement, deed, mortgage, lease, license, commitment, promise, undertaking, arrangement or understanding, whether written or oral and whether express or implied, or other document or instrument (including any document or instrument evidencing or otherwise relating to any Debt , ) to which or by which such Person is a party or otherwise subject or bound or to which or by which any property, business, operation or right of such Person is subject or bound.


" Debt" means, with respect to any Person, all obligations (including all obligations in respect of principal, accrued interest, penalties, fees and premiums) of such Person (a) for borrowed money (including overdraft facilities), (b) evidenced by notes, bonds, debentures or similar Contractual Obligations, (c) for the deferred purchase price of property, goods or services (other than trade payables or accruals incurred in the Ordinary Course of Business), (d) under capital leases (in accordance with GAAP), (e) in respect of letters of credit and bankers' acceptances, (f) for Contractual Obligations relating to interest rate protection, swap agreements and collar agreements and (g) in the nature of Guarantees of the obligations described in clauses (a) through (f) above of any other Person.


" DevCo" means SoftSRM Development India Private Ltd., an Indian corporation and a wholly-owned Subsidiary of the Company organized under the laws of the State of Karnataka.

" Encumbrance" means any charge, claim, community or other marital property interest, condition, equitable interest, lien, license, option, pledge, security interest, mortgage, right of way, easement, encroachment, servitude, right of first offer or first refusal, buy/sell agreement and any other restriction or covenant with respect to, or condition governing the use, construction, voting (in the case of any security or equity interest), transfer, receipt of income or exercise of any other attribute of ownership.

" Enforceable" means, with respect to any Contractual Obligation stated to be Enforceable by or against any Person, that such Contractual Obligation is a legal, valid and binding obligation of such Person enforceable by or against such Person in accordance with its terms, except to the extent that enforcement of the rights and remedies created thereby is subject to bankruptcy, insolvency, reorganization, moratorium and other similar laws of general application affecting the rights and remedies of creditors and to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).


" Equity Interests" means (a) any capital stock, share, partnership or membership interest, unit of participation or other similar interest (however designated) in any Person and (b) any option,


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warrant, purchase right, conversion right, exchange rights or other Contractual Obligation which would entitle any Person to acquire any such interest in such Person or otherwise entitle any Person to share in the equity, profit, earnings, losses or gains of such Person (including stock appreciation, phantom stock, profit participation or other similar rights).

" ERISA" means the federal Employee Retirement Income Security Act of 1974.


" GAAP" means generally accepted accounting principles in the United States as in effect from time to time.


" Government Order" means any order, writ, judgment, injunction, decree, stipulation, ruling, determination or award entered by or with any Governmental Authority.

" Governmental Authority" means any United States federal, state or local or any foreign government, or political subdivision thereof, or any multinational organization or authority or any authority, agency or commission entitled to exercise any administrative, executive, judicial, legislative, police, regulatory or taxing authority or power, any court or tribunal (or any department, bureau or division thereof), or any arbitrator or arbitral body.

" Guarantee" means, with respect to any Person, (a) any guarantee of the payment or performance of, or any contingent obligation in respect of, any Debt or other Liability of any other Person, (b) any other arrangement whereby credit is extended to any obligor (other than such Person) on the basis of any promise or undertaking of such Person (i) to pay the Debt or other Liability of such obligor, (ii) to purchase any obligation owed by such obligor, (iii) to purchase or lease assets under circumstances that are designed to enable such obligor to discharge one or more of its obligations or (iv) to maintain the capital, working capital, solvency or general financial condition of such obligor and (c) any liability as a general partner of a partnership or as a venturer in a joint venture in respect of Debt or other obligations of such partnership or venture.


" i2 India" means i2 Technologies India Private Ltd., an Indian corporation and an indirect wholly-owned subsidiary of Seller Parent organized under the laws of the State of Karnataka.

" Indemnity Claim" means a claim for indemnity under Section 10.1 or 10.2, as the case may be.

" Indemnified Party" means, with respect to any Indemnity Claim, the party asserting such claim under Section 10.1 or 10.2, as the case may be.


" Indemnifying Party" means, with respect to any Indemnity Claims, the Buyer Indemnified Person or the Seller Indemnified Person under Section 10.1 or 10.2, as the case may be, against whom such claim is asserted.


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" Intellectual Property" means the entire right, title and interest in and to all proprietary rights of every kind and nature, including all rights and interests pertaining to or deriving from:

(a) patents, copyrights, mask work rights, technology, know-how, processes, trade secrets, algorithms, inventions, works, proprietary data, databases, formulae, research and development data and computer software or firmware;

(b) trademarks, trade names, service marks, service names, brands, trade dress and logos, and the goodwill and activities associated therewith;


(c) domain names, rights of privacy and publicity, moral rights, and proprietary rights of any kind or nature, however denominated, throughout the world in all media now known or hereafter created;


(d) any and all registrations, applications, recordings, licenses, common-law rights and Contractual Obligations relating to any of the foregoing; and


(e) all Actions and rights to sue at law or in equity for any past or future infringement or other impairment of any of the foregoing, including the right to receive all proceeds and damages therefrom, and all rights to obtain renewals, continuations, divisions or other extensions of legal protections pertaining thereto.


" Intercompany Agreement" means the Intercompany Agreement between Newco and DevCo substantially in the form of Exhibit 1.1.1(c).


" Interests" means the limited liability company membership interests of the Company.

" Liability" means, with respect to any Person, any liability or obligation of such Person whether known or unknown, whether asserted or unasserted, whether determined, determinable or otherwise, whether absolute or contingent, whether accrued or unaccrued, whether liquidated or unliquidated, whether incurred or consequential, whether due or to become due and whether or not required under GAAP to be accrued on the financial statements of such Person.

" Licenses" means any license, sublicense or other Contractual Obligation pursuant to which an Acquired Company uses Company Technology that is owned by any Person besides an Acquired Company.


" Material Adverse Effect" means any change in, or effect on, the Business, operations, Assets, prospects or condition (financial or otherwise) of the Acquired Companies which, when considered either individually or in the aggregate together with all other adverse changes or effects with respect to which such phrase is used in this Agreement, is, or is reasonably likely to be, materially adverse to the Business, operations, Assets, prospects or condition (financial or otherwise) of the Acquired Companies, taken as a whole, including, without limitation, any such change in or effect on Seller or Seller Parent.

" Organizational Documents" means, with respect to any Person (other than an individual), (a) the certificate or articles of incorporation or organization and any joint venture, limited liability company, operating or partnership agreement and other similar documents adopted or


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filed in connection with the creation, formation or organization of such Person and (b) all by-laws, voting agreements and similar documents, instruments or agreements relating to the organization or governance of such Person, in each case, as amended or supplemented.

" Permits" means, with respect to any Person, any license, franchise, permit, consent, approval, right, privilege, certificate or other similar authorization issued by, or otherwise granted by, any Governmental Authority or any other Person to which or by which such Person is subject or bound or to which or by which any property, business, operation or right of such Person is subject or bound.


" Permitted Encumbrance" means (a) statutory Liens for current Taxes, special assessments or other governmental charges not yet due and payable or the amount or validity of which is being contested in good faith by appropriate proceedings and for which appropriate reserves have been established in accordance with GAAP, (b) mechanics' , materialmen' s, carriers' , workers' , repairers' and similar statutory liens arising or incurred in the ordinary course of business which liens have not had and are not reasonably likely to have a Material Adverse Effect, (c) deposits or pledges made in connection with, or to secure payment of, worker' s compensation, unemployment insurance, old age pension programs mandated under applicable laws, rules or regulations or other social security and (d) restrictions on the transfer of securities arising under federal and state securities laws.

" Person" means any individual or corporation, association, partnership, limited liability company, joint venture, joint stock or other company, business trust, trust, organization, Governmental Authority or other entity of any kind.

" Representative" means, with respect to any Person, any director, officer, employee, agent, consultant, advisor, or other representative of such Person, including legal counsel, accountants, and financial advisors.


" Seller Expenses" means the expenses with respect to the organization of the Company and its operation prior to the Closing Date actually incurred and documented by Seller Parent and its Subsidiaries (including the Company and including any Buyer Expense invoiced to and paid by any Acquired Company) in accordance with the Budget (from which certain amounts as indicated in the Budget shall be deducted), it being understood that Seller Expenses shall not include any such expenses that exceed the amounts set forth in the Current Expenditure Plan table in the Budget.

" Seller' s Knowledge" means the actual knowledge, after reasonable investigation, of the Seller, the officers of the Acquired Companies and such other employees of the Acquired Companies who would be reasonably expected to have knowledge of the matter in question.

" Subsidiary" means, with respect to any specified person, any other Person of which such specified Person will, at the time, directly or indirectly through one or more Subsidiaries, (a) own at least 50% of the outstanding capital stock (or other shares of beneficial interest) entitled to vote generally, (b) hold at least 50% of the partnership, limited liability company, joint venture or similar interests or (c) be a general partner, managing member or joint venturer.


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" Tax" or " Taxes" means (a) any and all federal, state, local, or foreign income, gross receipts, license, payroll, employment, excise, severance, stamp, occupation, premium, windfall profits, environmental, customs duties, capital stock, franchise, profits, withholding, social security (or similar, including FICA), unemployment, disability, real property, personal property, sales, use, transfer, registration, value added, alternative or add-on minimum, estimated, or other tax of any kind or any charge of any kind in the nature of (or similar to) taxes whatsoever, including any interest, penalty, or addition thereto, whether disputed or not and (b) any liability for the payment of any amounts of the type described in clause (a) of this definition as a result of being a member of an affiliated, consolidated, combined or unitary group for any period, as a result of any tax sharing or tax allocation agreement, arrangement or understanding, or as a result of being liable for another person' s taxes as a transferee or successor, by contract or otherwise.


" Tax Return" means any return, declaration, report, claim for refund or information return or statement relating to Taxes, including any schedule or attachment thereto, and including any amendment thereof.


" Treasury Regulations" means the regulations promulgated under the Code.

Except as otherwise explicitly specified to the contrary, (a) references to a Section, Article, Exhibit or Schedule means a Section or Article of, or Schedule or Exhibit to this Agreement, unless another agreement is specified, (b) the word " including" will be construed as " including without limitation," (c) references to a particular statute or regulation include all rules and regulations thereunder and any predecessor or successor statute, rules or regulation, in each case as amended or otherwise modified from time to time, (d) words in the singular or plural form include the plural and singular form, respectively and (e) references to a particular Person include such Person' s successors and assigns to the extent not prohibited by this Agreement.

Each of the following terms is defined in the Section of this Agreement set forth opposite such term:


Term

Section

Assets 3.8

Buyer Indemnified Person 10.1

Closing 2.2

Closing Date 2.2

Company Plan 3.14.2

Current Liability Policies 3.21

Disclosed Contract 3.15

Documentation 2.4

Drop Dead Date 9.1

Employee 3.18

Employee Plan 3.14.1

Independent Expert 2.4

Liability Policies 3.21

License Agreement Recitals

Losses 10.1

Notice of Objection 2.4

Purchased Interests Recitals

Purchase Price 2.1.1

Real Property 3.9.1

Seller Indemnified Person 10.2

SRM Recitals

Statement 2.4

Support Agreement Recitals

Termination Date 9.1

Third Party Claim 10.4.1


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2. PURCHASE AND SALE OF PURCHASED INTERESTS.

2.1. Purchase and Sale of Purchased Interests . At the Closing, subject to the terms and conditions of this Agreement, the Seller will sell, transfer and deliver to the Buyer, and the Buyer will purchase from the Seller, the Purchased Interests.

2.1.1 Purchase Price . The aggregate consideration for all of the Purchased Interests in the Company will be US $10,000,000 plus an amount equal to all Seller Expenses (the " Purchase Price" ). The Purchase Price will be subject to adjustment in accordance with Section 2.4.

2.2. The Closing . The purchase and sale of the Purchased Interests (the " Closing" ) will take place at the offices of Ropes & Gray LLP at 45 Rockefeller Plaza, New York, New York on June 13, 2005 or at such other place and on such other date as the Buyer and the Seller may agree in writing (the " Closing Date" ), in each case, subject to the satisfaction of the conditions set forth in Sections 7 and 8 which can be satisfied prior to closing. Except as otherwise provided in Section 9, the failure to consummate the purchase and sale provided for in this Agreement on the date and time and at the place specified herein will not relieve any party to this Agreement of any obligation under this Agreement.

2.3. Closing Deliveries . At the Closing, the Buyer will deliver to the Seller cash in the amount of US $10,000,000 by wire transfer of immediately available federal funds to the accounts designated in writing not fewer than two Business Days prior to the scheduled Closing Date.

2.4. Post-Closing Adjustment . (a) Within ten (10) days after the Closing Date, the Seller shall provide to the Buyer, a statement as to the computation of the Seller Expenses (the " Statement" ) together with documentation (the " Documentation" ) as to the Seller Expenses in accordance with Schedule 1.1 . Unless the Buyer notifies the Seller in writing within thirty (30) days after the Buyer' s receipt of the Documentation of any objections to the computation of the Seller Expenses (the " Notice of Objection" ), the Seller' s computation shall become final and binding.

(b) During such 30-day period, Buyer and its representatives shall be permitted to review the working papers of the Seller and the Seller' s accountants relating to the Statement, and the Seller shall provide the Buyer and its representatives any


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information reasonably requested and shall provide them access at all reasonable times to the Seller' s personnel, properties, books and records relating to the Business for such purpose. Any Notice of Objection shall specify in reasonable detail the basis for the objections set forth therein.

(c) If the Buyer provides the Notice of Objection to the Seller within such 30-day period, the Buyer and the Seller shall, during the 30-day period following the Buyer' s receipt of the Notice of Objection, attempt in good faith to resolve the Buyer' s objections. During such 30-day period, the Seller and its representatives shall be permitted to review the working papers of the Buyer and the Buyer' s accountants relating to the Notice of Objection and the basis therefor. If the Buyer and the Seller are unable to resolve all such objections within such 30-day period, the matters remaining in dispute shall be submitted to Citrin Cooperman & Co., LLP (such selected firm being the " Independent Expert" ). The parties shall instruct the Independent Expert to render its written decision as promptly as practicable but in no event later than 60 days after its selection. The resolution of disputed items by the Independent Expert shall be final and binding, and the determination of the Independent Expert shall constitute an arbitral award that is final, binding and non-appealable and upon which a judgment may be entered by a court having jurisdiction thereover. The fees and expenses of the Independent Expert shall be allocated equally between the Buyer and the Seller.


(d) Within 10 days after the Statement has become final and binding in accordance with this Section 2.4, the Buyer shall pay to the Seller an amount in cash equal to the Seller Expenses. Any such payment hereunder shall be made by wire transfer of immediately available funds to an account designated in writing by the Seller.

2.5. Allocation of Purchase Price . The Purchase Price shall be allocated among the Assets of the Company in a manner to be determined by the Buyer and consented to by the Seller (which consent shall not be unreasonably withheld) on or prior to the Closing Date. Each of the Seller and the Buyer agrees to adhere to such allocation for all Tax purposes. The portion of the Purchase Price allocated to the Licenses shall be treated by the Seller as royalty income and by the Buyer as deductible royalty payments in respect of such Licenses for all Tax purposes. Each of Seller and Buyer shall prepare and file, or cause to be prepared and filed, all Tax Returns (including any related information statements and documents) with all appropriate taxing authorities on a basis consistent with this Section 2.5.


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3. REPRESENTATIONS AND WARRANTIES REGARDING THE ACQUIRED COMPANIES.

In order to induce the Buyer to enter into and perform this Agreement and to consummate the Contemplated Transactions, the Company and the Seller and Seller Parent hereby jointly and severally represent and warrant to the Buyer as follows:


3.1. Organization; No Activities .


3.1.1 Organization . Schedule 3.1.1 sets forth for each Acquired Company its name, jurisdiction and date of organization. Each Acquired Company is (or, in the case of DevCo, prior to the Closing Date will be) (a) duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization and (b) duly qualified to do business and in good standing in each jurisdiction in which it owns or leases Real Property and in each other jurisdiction in which the failure to so qualify has not had, and is not reasonably likely to have, a Material Adverse Effect. The Seller has (or, in the case of DevCo, prior to the Closing Date will have) delivered to the Buyer true, accurate and complete copies of (x) the Organizational Documents of each Acquired Company and (y) the minute books of each Acquired Company which contain records of all meetings held of, and other corporate actions taken by, its membership interestholders or stockholders, as the case may be, Board of Directors and any committees appointed by its Board of Directors.

3.1.2 No Activities . Prior to the date of this Agreement, neither of the Acquired Companies has engaged in any activities other than those related to its organization.

3.2. Power and Authorization .

3.2.1 Contemplated Transaction . The execution, delivery and performance by each Acquired Company of this Agreement and each Ancillary Agreement to which it is (or will be) a ...