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EXHIBIT 2.02
DISTRIBUTION, ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS DISTRIBUTION, ASSIGNMENT AND ASSUMPTION AGREEMENT (this
"Agreement") is executed and delivered as of on August 7, 1997 by and between
Parsons Technology, Inc., a California corporation ("Parsons") and Parsons'
sole shareholder, Intuit Inc., a Delaware corporation ("Intuit").
R E C I T A L S
A. Parsons and Intuit have determined that it is in the best interests
of Parsons and Intuit that Parsons completely liquidate for United States
federal and California income tax purposes by consummating the following
transactions: (i) approving and adopting a Plan of Complete Liquidation (the
"Plan"); (ii) distributing to Intuit certain designated assets of Parsons as
provided in this Agreement; (iii) constructively selling Parsons' remaining
assets to Broderbund Software, Inc. ("Broderbund") for cash in a stock sale
transaction with respect to which a Section 338(h)(10) election will be made by
Intuit and Broderbund under the Internal Revenue Code of 1986, as amended (the
"Code"), all pursuant to the terms of a Stock Purchase Agreement between
Parsons, Intuit and Broderbund executed and delivered immediately prior to this
Agreement (the "Stock Purchase Agreement"); and (iv) constructively
distributing to Intuit the asset sale proceeds derived from the stock sale
transaction effected pursuant to the Stock Purchase Agreement to complete the
liquidation process of the Plan as described in Section 338(h)(10) of the Code
and the regulations thereunder.
B. The Plan has been approved by the Boards of Directors of Parsons and
Intuit and by Intuit as the sole shareholder of Parsons. This Agreement and
the Stock Purchase Agreement have also been approved by the Boards of Directors
of Parsons and Intuit.
C. Contingent upon, and effective immediately prior to, the effective
time of the Stock Purchase Agreement and subject to the terms and conditions of
this Agreement, pursuant to the Plan, Parsons will distribute to Intuit certain
assets of Parsons, including but not limited to assets relating to its "Tax
Products" and "Electronic Filing Services" (as those terms are defined herein).
D. Except as otherwise defined in this Agreement, all capitalized terms
used herein shall have the same meanings assigned to them in the Stock Purchase
Agreement.
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AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual
promises made herein, the parties hereto agree as follows:
1.CERTAIN DEFINITIONS
The following terms shall have the following meanings:
1.1 "TAX PRODUCTS" consist of all versions and releases
of each of the following in any media or format and for all language versions,
operating environments (including without limitation the Internet), hardware
platforms and software platforms and whether sold separately or bundled with
other applications (including without limitation each version or release for
each tax year for which the product line was developed or marketed):
Charitable Contribution
Clergy Tax for Windows
Client Organizer
Parsons 1040EZ Online
Personal Tax Edge Preparer's Edition for DOS
Personal Tax Edge Preparer's Edition for Windows (3.1)
Personal Tax Edge Preparer's Edition for Windows (95/NT)
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Personal Tax Edge for DOS
Personal Tax Edge for Windows (3.1)
Personal Tax Edge for Windows (95/NT)
Personal Tax Edge Deluxe for Windows (3.1)
Personal Tax Edge Deluxe for Windows (95/NT)
Personal Tax Edge Deluxe for CD-ROM
Personal Tax Edge for CD-ROM
Personal Tax Edge for Macintosh
Personal Tax Organizer for Windows
Personal Tax Organizer for Macintosh
State Tax Edge for DOS
State Tax Edge for Macintosh
State Tax Edge for Windows (3.1)
State Tax Edge for Windows (95/NT)
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Tax Mate for Windows (3.1)
Tax Mate for Windows (95/NT)
CASH - For Your Used Clothing
All other products of Parsons (whether past, current
or under development) directly related, in whole or in
part, to income tax returns (not including the
"MoneyCounts" product line).
1.2 "ASSIGNED SOFTWARE" means (i) all prior and current
versions and releases of those software programs constituting the Tax Products
(whether or not ever released as commercial products), including all source
code and object code versions thereof in any media or format and for all
language versions, operating environments (including without limitation the
Internet), hardware platforms and software platforms and whether sold
separately or bundled with other applications, (ii) all prior and current
versions and releases of any software used in connection with or developed for
the Electronic Filing Services, including all source code and object code
versions thereof in any media or format and for all language versions and
hardware platforms, software platforms and operating environments (including
without limitation the Internet) which software includes but is not limited to
any and all software used by the host system to perform the functions of
accepting and processing tax return information from end users, transferring
such information to the database, retrieving such information from the
database, and formatting and transmitting such information to relevant tax
authorities, as well as any software constituting or relating to the
database(s) used in connection with Electronic Filing Services, (iii) all
versions of the software programs described above that are currently under
development, and (iv) all related flow charts, program descriptions, program
listings, programmers' notes, layouts, schematics, engineering and design
drawings, technical support information, diagrams and other documentation
depicting or specifying all or any part of the designs and components of any
versions and releases of the software programs described in subsections (i) -
(iii) above, test and other data, all development tools, testing tools or
suites, or applications used primarily in connection with the development or
testing of such software programs, and all related documentation and
information, including without limitation all user manuals and user guide or
instruction books ever marketed, provided or used with each or any of such
software programs in any medium.
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1.3 "ASSIGNED TRADEMARKS" means the following trademarks,
trade names and service marks relating to any of the Tax Products (whether
written as one word or more than one word, stylized and unstylized, in all
languages):
CHARITABLE CONTRIBUTION
CLIENT ORGANIZER
ELECTRONIC RETURN ORIGINATOR
PARSONS 1040EZ ONLINE
PARSONS 1040 ONLINE
PERSONAL TAX EDGE
PERSONAL TAX EDGE PREPARER'S EDITION
PERSONAL TAX GUIDE
PERSONAL TAX ORGANIZER
STATE TAX EDGE
TAX ADVISOR
TAX EDGE
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TAX MATE
TAXINSIGHT
TAX TIPS
1040 ONLINE REFERENCE LIBRARY
1.4 "CLOSING" means the Closing as defined in the Stock
Purchase Agreement.
1.5 "DERIVATIVE WORK" means any translation, adaptation,
modification, extension, upgrade, improvement, compilation, abridgment or other
form in which Assigned Software may be recast, transformed or adapted where
such Derivative Work would infringe any intellectual, proprietary or industrial
property rights, including but not limited to audiovisual copyrights, in any
Assigned Software.
1.6 "ELECTRONIC FILING SERVICES" means any and all
services provided by Parsons (both in the past and currently) to end users of
any of the Tax Products that relate to the electronic filing by Parsons or its
assigns of such end user's of tax returns.
1.7 "INTELLECTUAL PROPERTY" means all right, title and
interest in and to all worldwide intellectual, proprietary and industrial
property rights constituting, embodied in, or pertaining to all or any part of
the Assigned Software or any Derivative Work, any copyrights therein (whether
or not registered and including without limitation copyrights in any
audiovisual works), the copyright registrations and applications described in
Attachment 1, any other copyright registration applications pending with
respect to all or any part of the Assigned Software, the Assigned Trademarks,
the trademark registrations and applications described in Attachment 2, any
other worldwide trademark registrations and
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applications therefor relating to the Assigned Trademarks, all trade names and
any registrations thereof and applications therefor relating to the Assigned
Trademarks, all service marks, service mark registrations and applications
therefor relating to the Assigned Trademarks, all trade dress rights relating
to the Tax Products, Assigned Software or Assigned Trademarks, all moral rights
relating to the Tax Products, Assigned Software, Derivative Works or Assigned
Trademarks, all rights to mask works, mask work registrations and applications
therefor relating to the Assigned Software and Tax Products, all design rights,
patents, patent applications, and patent rights, relating to any of the
foregoing, all trade secret rights, know-how, proprietary information rights,
rights of priority; all rights to secure renewals, reissuances and extensions
of the above, any other similar rights existing under judicial or statutory law
of any country in the world or under any treaty, and all claims and/or causes
of action of any kind for any past or future infringements upon, or other
misappropriations or violations of any of the foregoing.
1.8 "LICENSED INTELLECTUAL PROPERTY" means those (and
only those) worldwide intellectual, proprietary and industrial property rights
that are, as of the effective time of this Agreement, embodied in and/or
pertain to both:
(a) all or any part of the Assigned Software (including
without limitation the Tax Products) or any
Derivative Work; and
(b) existing Parsons products or Parsons products
currently under development (excluding the products
constituting the Assigned Software (including without
limitation the Tax Products) or Derivative Works);
and only such rights as are embodied in and/or pertain to the subject matter
described in (a) and (b) above as of the effective time of this Agreement.
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1.9 "INTUIT CUSTOMER INFORMATION" has the meaning set
forth in that certain Customer Information Cross-License Agreement by and
between Intuit, Parsons and Broderbund Software, Inc. dated August 7, 1997.
1.10 "DUAL CUSTOMER INFORMATION" has the meaning set forth
in that certain Customer Information Cross-License Agreement by and between
Intuit, Parsons and Broderbund Software, Inc. dated August 7, 1997.
2. DISTRIBUTION
2.1 ASSIGNMENT OF ASSETS. Contingent upon, and effective
immediately prior to, the Closing, and without the need for any further action
by the parties hereto, all of the assets described in Section 2.2 (the
"Assigned Assets") are hereby assigned, transferred and conveyed to Intuit free
and clear of any liens, claims or encumbrances of any kind whatsoever. To the
extent that any of the Assigned Assets cannot be so assigned, transferred and
conveyed to Intuit without the consent of a third party, such limitation is
noted in the Schedule corresponding to such Assigned Asset and Parsons agrees
to use its best efforts to obtain the consent of all such third parties as
promptly as practicable.
2.2 ASSIGNED ASSETS. The Assigned Assets subject to
assignment, transfer and conveyance pursuant to Section 2.1 are as follows:
a. INTELLECTUAL PROPERTY. All Intellectual
Property.
b. PHYSICAL EMBODIMENTS. All physical or
tangible embodiments of any of the Assigned
Software and/or any Derivative Works,
including but not limited to those items set
forth in the definition of "Assigned
Software" and all copies of the foregoing.
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c. RECORDS RELATING TO TAX PRODUCTS AND
ELECTRONIC FILING SERVICES. All right, title
and interest in and to, and all intellectual,
proprietary and industrial property rights
embodied in or pertaining to, all of the
following records and information insofar as
they relate to either the Tax Products, the
Assigned Software, Derivative Works or
Electronic Filing Services through the time
of the Closing (whether kept in electronic,
magnetic, microfiche or hard copy form):
c.1 business, accounting and financial
records and analysis (including but
not limited to records of assignment
of any Intellectual Property and
historical sales reports);
c.2 logs, books, records, files;
c.3 supplier/licensor lists;
c.4 product component lists;
c.5 sales literature and sales aids,
pictures, negatives, camera ready
proofs, product catalogs, product
sheets and documentation, product
displays, advertising materials;
c.6 manuals, training materials (in hard
copy, electronic format and film);
c.7 computer and electronic data
processing materials and
correspondence relating to the Tax
Products business and Electronic
Filing Services carried on by
Parsons;
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c.8 sales and customer records,
including but not limited to account
histories, and related demographic
and psychographic data;
c.9 all information necessary to provide
customer support (including but not
limited to customer service records
and "knowledgebases");
c.10 all information regarding pricing,
both historical and current;
c.11 all testing data, procedures, plans
and related information regarding
Assigned Software, Tax Products or
Electronic Filing Services; and
c.12 all other information required to
permit Intuit to carry on the
Electronic Filing Services business
after the Closing (including but not
limited to all returns information
in the database(s) used in
connection with the Electronic
Filing Services, all operational
documents and plans, and all
documentation and information
relating to the process whereby end
users transmit information to
Parsons);
d. CONTRACTS RELATING SOLELY TO TAX PRODUCTS OR
ELECTRONIC FILING SERVICES. All right, title and
interest in and to, and all of Parsons' obligations
under and liabilities arising from the contracts
described in Attachment 3, including without
limitation all rights, remedies, setoffs, allowances,
rebates, discounts and credits granted or owed to
Parsons by third parties relating to such contracts.
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e. OTHER CONTRACTS RIGHTS/OBLIGATIONS RELATING TAX
PRODUCTS. All right, title and interest in and to,
and all of Parsons' obligations under and liabilities
arising from the contracts described in Attachment 4
(but only to the extent that such contracts relate to
Tax Products), including without limitation all
rights, remedies, setoffs, allowances, rebates,
discounts and credits granted or owed to Parsons by
third parties relating to such contracts (but only to
the extent that such contracts relate to Tax
Products).
f. ACCOUNTS RECEIVABLE. All accounts receivable
relating to sales of the Tax Products and sales of
Electronic Filing Services existing as of the
Closing.
g. TAX PRODUCTS WARRANTY OBLIGATIONS. All of Parsons'
warranty obligations imposed by law relating to the
Tax Products not otherwise included in items (d) and
(e) above.
h. INVENTORY OF TAX PRODUCTS. All right, title and
interest in all tangible finished products,
inventory, and all work in process and spare parts
constituting, or to constitute, the Tax Products.
i. "EXPENSABLE" RELATED AGREEMENTS. All right, title
and interest in and to, and all obligations under
that certain Agreement to Market and Distribute
Intuit's ExpensAble Software Via the World Wide Web
dated May 1, 1997 between Parsons and Visioneer, Inc.
j. INTUIT CUSTOMER LIST ASSETS. All right, title and
interest, if any, which Parsons or its subsidiaries
may have in any and all Intuit
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Customer Information and all tangible or other media
in which such information is stored including without
limitation paper, magnetic and electronic files of
all kinds containing the Intuit Customer Information.
k. DUAL CUSTOMER LIST ASSETS. An undivided one-half
interest in all right, title and interest, if any,
which Parsons or its subsidiaries may have in any and
all Dual Customer Information and all tangible or
other media in which such information is stored
including without limitation paper, magnetic and
electronic files of all finds containing the Dual
Customer Information.
l. INTERCOMPANY ACCOUNT. The full amount of any
intercompany receivable due from Intuit to Parsons as
of the Closing.
2.3 ASSIGNMENTS. In furtherance of the assignment, transfer
and conveyance set forth in Section 2.1, and in order to effectuate the same
Parsons will, upon the request of Intuit, execute all necessary or desirable
forms of assignment, transfer and conveyance in order to establish Intuit's
right, title and interest in the Assigned Assets, including but not limited to
assignments in substantially the following forms:
2.3.1 Assignment of Copyright attached hereto as
SCHEDULE 2.3.1.
2.3.2 Assignment of Trademark attached hereto as
SCHEDULE 2.3.2.
Notwithstanding the provisions of Section 2.2 and 2.3, Parsons
shall be entitled to retain a copy of and use all of the records described in
Section 2.2(c) to the extent that such records are necessary to the support of
Parsons' current business operations as they pertain to products which are not
Tax Products or related to Electronic Filing Services (the "JOINT RECORDS");
provided, however, that the Joint Records shall not include any information
which discloses customer information of any kind (except insofar as such
customer information constitutes Dual Customer Information).
2.4 ASSUMPTION OF LIABILITIES. In connection with and as
an integral part of the assignment, transfer and conveyance set forth in
Section 2.1, Intuit will simultaneously assume those (and only those)
liabilities of Parsons to third parties (not including Broderbund)
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that are directly related to the development, marketing, or distribution of the
Tax Products or the Electronic Filing Services.
2.5 LIABILITIES AND OBLIGATIONS NOT ASSUMED. Except as
expressly set forth in Section 2.4, Intuit shall not, by virtue of this
Agreement, be deemed to assume or become obligated for any other debts,
obligations or liabilities of Parsons of any kind whatsoever.
2.6 LICENSE OF LICENSED INTELLECTUAL PROPERTY. Intuit
hereby grants to Parsons a non-exclusive, perpetual, royalty-free, irrevocable,
transferable, worldwide license to the Licensed Intellectual Property;
provided, however, that this license does not license, permit, authorize,
apply, or extend to any use of any of the Licensed Intellectual Property to
develop or market any product or service that relates to, permits, or performs
tax return preparation, tax planning, tax or tax-related calculations,
electronic communication with any taxing authorities, or the production of any
tax forms or related worksheets (collectively, the "Unlicensed Uses") and
Parsons and its assigns covenant and agree not to use any Licensed Intellectual
Proprety for any Unlicensed Use.
3. EFFECTIVE TIME This Agreement is effective and the transactions
contemplated hereby shall be deemed consummated after 5:00 p.m. (Pacific
Standard Time) on the date of execution and delivery first set forth above and
immediately before the Closing.
4. MISCELLANEOUS.
4.1 FURTHER ASSURANCES. From and after the Closing,
Parsons shall promptly execute and deliver to Intuit any and all such further
assignments, endorsements and other documents as Intuit may reasonably request
for the purpose of effecting the assignment and transfer of Parsons' title to
the Assigned Assets to Intuit and/or carrying out the provisions of this
Agreement. Parsons hereby appoints Intuit as its attorney-in-fact for the
limited purpose of executing such assignments, endorsements and other documents
should Parsons be unable or unwilling to do so. From and after the Closing,
Intuit shall promptly execute and deliver to Parsons any and all such further
assumptions, endorsements and other documents as Parsons may reasonably request
for the purpose of effecting the assumption of the liabilities provided for in
Section 2.4 and/or carrying out the provisions of this Agreement.
4.2 COVENANT NOT TO ASSERT RIGHTS. To the extent that
any rights in or to any of the Assigned Assets are not, for any reason, deemed
or found to have been fully assigned and transferred to Intuit by virtue of
this Agreement (the "Unassigned Rights"), Parsons covenants that it will
refrain from exercising, practicing, transferring, licensing or otherwise
asserting in any way, any right, title or interest of any kind in the
Unassigned Rights; provided, however, that nothing in this Section 4.2 shall be
deemed to limit or restrain Parsons from taking any actions required under
Section 4.1.
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4.3 DELIVERY OF ASSIGNED ASSETS. Except insofar as
otherwise provided in the Business Transition Agreement between Intuit, Parsons
and Broderbund dated August 7, 1997 (the "Transition Agreement"), Parsons shall
promptly after the Closing deliver to Intuit all physical embodiments of all of
the Assigned Assets. Intuit shall cooperate with Parsons in order to
facilitate such delivery.
4.4 ENTIRE AGREEMENT; CAPTIONS. This Agreement, the
Exhibits and Schedules hereto (which are incorporated herein by reference) and
the agreements to be executed and delivered in connection herewith on the date
hereof, together constitute the entire agreement and understanding between the
parties and there are no other agreements or commitments with respect to the
transactions contemplated herein. This Agreement supersedes any prior offer,
agreement or understanding between the parties with respect to the transactions
contemplated hereby. The captions in this Agreement are for convenience only
and shall not be considered a part of or affect the construction or
interpretation of any provision of this Agreement.
4.5 AMENDMENT; WAIVER. Any term or provision of this
Agreement may be amended only by a writing signed by the parties hereto. The
observance of any term or provision of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively) only by a writing signed by the party to be bound by such
waiver. No waiver by a party of any breach of this Agreement will be deemed to
constitute a waiver of any other breach or any succeeding breach.
4.6 NO THIRD PARTY BENEFICIARIES. Nothing expressed or
implied in this Agreement is intended, or shall be construed, to confer upon or
to give any person, firm or corporation, other than the parties hereto, any
rights or remedies under or by reason of this Agreement.
4.7 GOVERNING LAW. This Agreement shall be governed by
and construed in accordance with the internal laws of the State of California
(excluding application of any choice of law doctrines that could make
applicable the law of any other state or jurisdiction) and, where appropriate,
applicable federal law.
4.8 SEVERABILITY. If any provision of this Agreement is
for any reason and to any extent deemed to be invalid or unenforceable, then
such provision shall not be voided but rather shall be enforced to the maximum
extent then permissible under then applicable law and so as to reasonably
effect the intent of the parties hereto, and the remainder of this Agreement
will remain in full force and effect.
4.9 ATTORNEYS' FEES. Should a suit or arbitration be
brought to enforce or interpret any provision of this Agreement, the prevailing
party shall be entitled to recover reasonable attorneys' fees to be fixed in
amount by the court or the arbitrator(s) (including without limitation costs,
expenses and fees on any appeal). The prevailing party will be entitled
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to recover its costs of suit or arbitration, as applicable, regardless of
whether such suit or arbitration proceeds to a final judgment or award.
4.10 CONSTRUCTION. The parties have participated jointly
in the negotiation and drafting of this Agreement. In the event of an
ambiguity or question of intent or interpretation arises, this Agreement shall
be construed as if drafted jointly by the parties and no presumption or burden
of proof shall arise favoring of disfavoring any party by virtue of the
authorship of any of the provisions of this Agreement. The word "including"
shall mean including without limitation.
4.11 EXECUTION IN COUNTERPARTS. For the convenience of
the parties, this Agreement may be executed in counterparts, each of which
shall be deemed an original but both of which together shall constitute one and
the same instrument, and this Agreement may be executed and delivered by
facsimile.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement by their duly authorized representatives as of the date and time
first set forth above.
PARSONS TECHNOLOGY, INC. INTUIT INC.
/s/ Greg J. Santora /s/ Greg J. Santora
Signature: ______________________ Signature: ___________________________
Greg J. Santora Greg J. Santora
Name: ____________________________ Name: ________________________________
Title: ___________________________ Title: _______________________________
[SIGNATURE PAGE TO DISTRIBUTION, ASSIGNMENT AND ASSUMPTION AGREEMENT.]
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