TERMINATION AGREEMENT
This TERMINATION AGREEMENT (hereinafter referred to as the 'Termination
Agreement') dated this 24th day of March, 1998 by and between XXXXXXX RESEARCH
CORPORATION, a corporation organized and existing under the laws of the state of
Florida, with its corporate headquarters located at 000 Xxxxx Xxxxxx Xxxxxx,
Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000 (hereinafter referred to a 'CRC', and
INTER*ACT SYSTEMS, INCORPORATED, a corporation organized and existing under the
laws of the State of North Carolina, with its principal place of business at 00
Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxx 00000 (hereinafter referred to as
'Inter*Act'); THERMO INFORMATION SOLUTIONS INC., a corporation organized and
existing under the laws of the state of Delaware and a subsidiary of CRC, with
its corporate headquarters located at 0000 Xxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxx
00000 (hereinafter referred to as 'TIS').
WHEREAS, CRC and Inter*Act entered into that certain Business Assets
Purchase Agreement dated as of September 9, 1996 (hereinafter referred to as the
'Purchase Agreement'), pursuant to which CRC purchased certain assets and rights
from Inter*Act and agreed to assume certain liabilities and obligations of
Inter*Act related to the design, development, manufacture and fabrication of
'Kiosks' (as defined therein);
WHEREAS, pursuant to the terms of the Purchase Agreement CRC and Inter*Act
entered into that certain Kiosk Agreement dated September 9, 1996 ('Kiosk
Agreement') regarding the purchase and sale of Kiosks:
WHEREAS, Schedule 1 to the Kiosk Agreement contained an initial order for
5,000 Kiosks (the 'Original Kiosk Order') and the parties now desire to
terminate the remaining obligations under the Original Kiosk Order and to enter
into two (2) Kiosk orders, as more particularly described below;
WHEREAS, certain disputes have arisen between Inter*Act and CRC under the
Kiosk Agreement, and the parties further desire to terminate the Kiosk Agreement
and the Purchase Agreement and settle and release all disputes, claims and
potential claims under the Kiosk Agreement in accordance with the terms and
conditions of this Termination Agreement; and
WHEREAS, CRC has requested the consent of Inter*Act to assign all of CRC's
interest, rights, duties and obligations in, to and under each of the Purchase
Agreement and the Kiosk Agreement to TIS and Inter*Act has agreed to consent to
this assignment to TIS, subject to the terms and conditions of this Termination
Agreement.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt, adequacy and sufficiency of which are
hereby acknowledged, CRC, Inter*Act and TIS agree as follows:
1. Assignment to TIS. CRC hereby assigns all of its interest, rights, duties
and obligations in, to and under each of the Kiosk Agreement to TIS and TIS
agrees to assume, perform and discharge all of CRC's duties and obligations
under the Kiosk Agreement, and Inter*Act hereby consents to the foregoing.
Notwithstanding the foregoing, CRC shall not be released from any of its
duties or obligations under the Kiosk Agreement (as amended and terminated
hereby).
2. Termination Payment. Inter*Act shall pay to TIS Four Million Five Hundred
Thousand Dollars ($4,500,000) (hereinafter referred to as the 'Termination
Payment'). The Termination Payment shall be payable as follows:
2.1 Two Million Dollars ($2,000,000) simultaneously with the execution of
this Agreement; and
2.2 Two Million Five Hundred Thousand Dollars ($2,500,000) by the delivery
of Inter*Act's promissory note in the form of Exhibit 'A' attached
hereto and incorporated herein (the 'Promissory Note').
3. Transfer of Inventory. In consideration of the Termination Payment and the
other agreements provided in this Termination Agreement, as of the date of
this Termination Agreement, CRC and TIS hereby sell, transfer and assign to
Inter*Act all right, title and interest in and to the inventory described
on Exhibit 'B' hereto (the 'Excess Inventory'). the Excess Inventory shall
not be subject to the terms and conditions of the Kiosk Agreement, but
shall be subject to the terms of this Section 3. The Excess Inventory shall
be delivered to Inter*Act at TIS's manufacturing site at a date and time
specified by Inter*Act within two (2) weeks form the date hereof. TIS and
CRC agree to assemble the Excess Inventory in a segregated area of TIS's
manufacturing site, to make the Excess Inventory available to Inter*Act so
that Inter*Act may inspect and count the Excess Inventory and prepare the
Excess Inventory for shipment, and to otherwise cooperate with Inter*Act
(and Inter*Act's designated employees or agents) with respect to the
assembly and shipment of the Excess Inventory. Shipment of the Excess
Inventory shall be Inter*Act's responsibility, at Inter*Act's expense. In
the event the Excess Inventory made available to Inter*Act for shipment
under this Termination Agreement fails to contain any of the items
described in Exhibit 'B' or any items in Exhibit 'B' constitute Damaged
Excess Inventory, Inter*Act shall have
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the right to set off, against any outstanding payments due under the
Promissory Note, the dollar value of such missing Excess inventory and the
Damaged Excess Intentory (collectively the 'Nonconforming Excess
Inventory') if such dollar value exceeds $5,000. For purposes of this
Termination Agreement, 'Damaged Excess Inventory' means Excess Inventory
that appears, in the best judgment of the managerial representative of each
of Inter*Act and TIS, Xxx Xxxxxxx and Xxxx Xxxxx, to have been damaged
while under the control of TIS or CRC, as the Case may be, and which damage
is not covered by a warranty in effect at the same time of inspection. Both
of such representatives shall be authorized by their employers to exercise
such judgment in good faith. The dollar value of the Nonconforming Excess
Inventory shall be calculated based on the book value of such Nonconforming
Excess Inventory shown of TIS's or CRC's books and financial records, which
TIS or CRC, as the case may be, shall make available to Inter*Act for
purposes of determining the value of the Nonconforming Excess Inventory.
4. Initial Kiosk Order. Inter*Act hereby orders from TIS One Hundred Twenty
Five (125) Kiosks in accordance with the Kiosk Order attached hereto as
Exhibit 'C' and incorporated herein (the 'Initial Kiosk Order').
Notwithstanding the termination of the Kiosk Agreement as set forth in this
Termination Agreement, all terms and conditions contained in Sections 1.,
3.2, 3.3, 3.6, 3.7, 3.8, 3.9, 3.10, 5., 6.2, 8.1, 8.2, 9.1 and 9.2 shall
apply to and are incorporated herein for purposes of the Initial Kiosk
Order; provided, however, the Acceptance Procedures are deleted and
replaced with the 'Acceptance Procedures' attached hereto as Schedule 1 and
incorporated herein. Payment for the Initial Kiosk Order will be made on
the date of shipment of the Kiosks making up the Initial Kiosk Order by
Inter*Act's delivery of the promissory note in the form of Exhibit 'D'
attached hereto and incorporated herein (the 'Initial Kiosk Order Note').
Notwithstanding the foregoing, the parties acknowledge and agree, with
respect to the Initial Kiosk Order Note: (i) Inter*Act shall be under no
obligation to execute and deliver the Initial Kiosk Order Note unless and
until the Initial Kiosk Order has satisfied the 'Acceptance Procedures'
(attached hereto as Schedule 1), TIS has shipped the subject Kiosks to
Inter*Act, and TIS has issued and presented its invoice covering the
Initial Kiosk Order to Inter*Act, in that order; (ii) in the event
Inter*Act fails to execute and deliver the Initial Kiosk Order Note as
required hereunder, the terms of payment contained in Section 4 of the
Kiosk Agreement shall govern the terms of payment for the Initial Kiosk
Order (except that Inter*Act shall pay the Initial Kiosk Order within
forty-five (45) days of the Invoice Date); and (iii) in the event Inter*Act
(by the sale of capital stock or otherwise) raises the sum
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of not less than $40,000,000 Inter*Act shall not be required to execute and
deliver the Initial Kiosk Order Note in payment of the Initial Kiosk Order,
gut the terms of payment contained in Section 4 of the Kiosk Order (except
that Inter*Act shall pay the Initial Kiosk Order invoice within forty-five
(45) days of the Invoice Date).
5. Additional Kiosk Order. Inter*Act hereby orders from TIS and additional two
hundred twenty five (225) Kiosks in accordance with the Kiosk Order
attached hereto as Exhibit E and incorporated herein (the 'Additional
Kiosk Order'). Notwithstanding the termination of the Kiosk Agreement as
set forth in this Termination Agreement, all terms and conditions contained
in Sections 1, 3.2, 3.3, 3.6, 3.7, 3.8, 3.9, 3.10, 5., 6.2, 8.1, 8.2, 9.1
and 9.2 of the Kiosk Agreement shall apply to and are incorporated herein
for purposes of the Additional Kiosk Order; provided, however, 'Acceptance
Procedures' defined above. Payment for each shipment made under the
Additional Kiosk Order will be made on the date of shipment of the subject
Kiosks by Inter*Act's delivery of a promissory note in the form of Exhibit
'F' attached hereto and incorporated herein (the 'Additional Kiosk Order
Note'), in the principal amount of the dollar value of the Kiosks shipped
on the particular shipping date. Notwithstanding the foregoing, the parties
acknowledge and agree, with respect to any Additional Kiosk Order Note: (i)
Inter*Act shall be under no obligation to execute and deliver an Additional
Kiosk Order Note unless and until the particular shipment satisfies the
terms of the Additional Kiosk Order and (x) the Kiosks designated for such
shipment have satisfied the 'Acceptance Procedures' (as defined above), (y)
TIS has shipped the subject Kiosks to Inter*Act, and (z) TIS has issued and
presented its invoice covering said Kiosks to Inter*Act, in that order;
(ii) in the event Inter*Act fails to execute and deliver any Additional
Kiosk Order Note as required hereinabove, there terms of payment contained
in Section 4 of the Kiosk Agreement shall govern the terms of payment for
the Kiosks covered by the applicable portion of the Additional Kiosk Order;
and (iii) in the event Inter*Act (by the sale of capital stock or
otherwise) raises the sum of not less than $40,000,000 in equity, Inter*Act
shall not be required to execute and deliver any Additional Kiosk Order
Notes in payment of any part of the Additional Kiosk Order, but the terms
of payment contained in Section 4 of the Kiosk Agreement shall govern the
terms of payment for the Additional Kiosk Order.
6. Termination of Orders for Non-Delivery. Inter*Act shall have the rights to
terminate, upon written notice to TIS, the Additional Kiosk Order in the
event TIS fails to deliver
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in accordance with the Shipping Schedule at least eighty five percent (85%)
of the Kiosks specified by the Additional Kiosk Order or at least fifteen
percent (15%) of such Kiosks in any shipment fail to satisfy the Acceptance
Procedures.
7. Termination of Kiosk Agreement. Except with respect to the first two
sentences of Section 8.1 of the Kiosk Agreement and Section 9.1 of the
Kiosk Agreement, the parties agree and acknowledge that the Kiosk Agreement
is hereby terminated in its entirety effective as of the date of this
Termination Agreement and shall be null and void. The incorporation of
certain terms and conditions of the Kiosk Agreement as reflected in
Sections 4 and 5 above shall not affect the termination of the Kiosk
Agreement as provided in this Termination Agreement.
8. Termination of Original Order. The parties agree and acknowledge that the
unfilled portion of the Original Kiosk Order is hereby terminated in its
entirety as of the date of this Termination Agreement and shall be null and
void.
9. Return of Inter*Act Property Under Kiosk Agreement. Notwithstanding the
termination of the Kiosk Agreement as set forth in this termination
agreement, CRC, TIS and Inter*Act acknowledge and agree that the
incorporation of Section 8.1 and Section 8.2 of the Kiosk Agreement into
Sections 4 and 5 of this Termination Agreement is designed to allow
performance of TIS's obligations under Sections 4 and 5 of this Termination
Agreement. TIS and CRC shall return all 'Proprietary Property'
(as defined in the Purchase Agreement) and all Proprietary Property (as
defined in the Kiosk Agreement) and other such materials (including,
without limitation, licensed materials and source codes) and any
derivatives, modifications, improvements, alterations, combinations or
developments thereof (referred to herein collectively as the 'Return
Materials') to Inter*Act upon the fulfillment by TIS of its obligations to
Inter*Act under the Sections 4 and 5 above or the termination of such
obligations for any reason, whereupon, neither CRC nor TIS shall have any
right, title and interest in or to the Return Materials.
10. Termination of Purchase Agreement; Further Indemnity. The parties
acknowledge and agree that the Purchase Agreement is hereby terminated,
including, without limitation, any liability of any party under Section 9
(Breach of Covenants, Warranties or Indemnification) of the Purchase
Agreement; provided, however, Inter*Act hereby agrees to defend, indemnify
and hold harmless CRC and TIS (including, but not limited to, its division,
Kiosk Solutions, collectively hereafter referred to as 'TIS') (CRC and TIS
referred to herein as the 'Indemnified Parties') from and against any
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and all claims, counterclaims or judgments arising in either (i) Inter*Act
Systems, Inc. v. Catalina Marketing Corp., Case No. 3-96-CV-00274-AWT,
pending in the United States District Court for the District of Connecticut
or (ii) Catalina Marketing International, Inc. v. Inter*Act Systems, Inc.,
Case No. CV-98-39-A, pending in the United States District Court for the
Eastern District of Virginia, or (iii) Catalina Marketing International,
Inc. v. Inter*Act Systems, Inc., Case No. 3-98-CV422 (PCD), pending in the
United States District Court for the District of Connecticut, or (iv) any
other action in which Catalina Marketing Corp. is a claimant that involves
Inter*Act's covenants, representations or warranties under the Purchase
Agreement (these (iv) actions referred to as 'Catalina Actions'), provided,
however, that such duty to defend, indemnify and hold harmless CRS and TIS
shall only apply, as to Catalina Actions, to Catalina Actions brought or
filed on or before September 8, 1998. The obligations of Inter*Act to
indemnify, defend, and hold harmless the Indemnified Parties pursuant to
this Section 10 shall be expressly conditioned upon the following: (w) each
of the Indemnified Parties shall be represented by legal counsel selected
by Inter*Act; (x) none of the Indemnified Parties perceives or knows of any
conflicts or interest or potential conflicts of interest which may arise
due to Inter*Act's selected legal counsel representing both Inter*Act and
the Indemnified Parties; (y) each of the Indemnified Parties shall
cooperate fully with Inter*Act, including, without limitation, by making
available for discovery and for trial personnel and documents reasonably
required by Inter*Act (for which Inter*Act shall pay or reimburse the
Indemnified Parties pre-approved, reasonable out-of-pocket expenses), and
by arranging for a waiver of conflicts should they arise; and (z) Inter*Act
shall control the defense and/or settlement of any such claims or actions.
11. [INTENTIONALLY DELETED]
12. Continuation of Confidentiality. Notwithstanding the termination of the
Kiosk Agreement and the Purchase Agreement as provided in this Termination
Agreement, any and all obligations of confidentiality or non-disclosure
imposed upon CRC and/or TIS (whether pursuant to Sections 9.1 of the Kiosk
Agreement or otherwise) or upon any current or former officers or employees
of CRC and/or TIS or of any affiliate of CRC and/or TIS (whether pursuant
to Section 2.1.3 of the Kiosk Agreement or otherwise) shall be and remain
in full force and effect.
13. Release. Inter*Act on the one hand, and TIS and CRC, on the other hand, in
consideration of the agreements made by the other parties under this
Termination Agreement, do
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hereby release and forever discharge the other party, its parents,
affiliates, subsidiaries, assigns, successors, employees, officers,
directors, trustees, shareholders, agents, representatives and attorneys
from any and all claims, losses, demands, actions, causes of action or
damages known, unknown or subsequently discovered, arising out of any matter
or thing whatsoever, and they do hereby mutually agree and declare that none
owes to any of the other any obligation or amount whatsoever, on account of
any transaction, occurrence, contract, express or implied, or other dealings
or relations of any kind heretofore existing between them in any way
relating to the Purchase Agreement, the Kiosk Agreement or any documents or
instruments executed in connection therewith or any action taken or omitted
to be taken in connection therewith; provided, however, nothing in this
Termination Agreement shall affect or release the rights, obligations or
liabilities of the parties contained in this Termination Agreement.
14. Covenant Not to Xxx. Except for enforcement of this Agreement,
Inter*Act, on the one hand, and TIS and CRC, on the other hand, hereby
covenant that they will not at any time after the Effective Date commence
any action, lawsuit or other legal proceeding, in law or in equity, or
otherwise, based upon or arising out of any fact or matter preceding the
Effective Date, against the other party to this Termination Agreement nor
against the other party's officers, agents, employees, representatives and
affiliates.
15. Representations and Warranties of CRC and TIS. Each of CRC and TIS
represents, warrants and covenants to Inter*Act as follows:
a. The Recitals stated hereinabove are true;
b. It is a corporation duly organized and in good standing under
the laws of the State of Florida (as to CRC), the laws of the State of
Delaware (as to TIS);
c. It is legally authorized to execute and perform its obligations
under this Termination Agreement, and the execution of this Termination
Agreement and the performance of its obligations hereunder have been
duly authorized by its Board of Directors, and no further authorization
is necessary; and there are no provisions of law, federal, state, or
local, or of its articles of incorporation or by-laws, nor is it a party
to any existing contracts or agreements whatsoever, which could in any
way bar or impede it from executing this Termination Agreement and
performing its
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obligations hereunder, and this Termination Agreement constitutes
its valid, legal and binding obligation;
d. Except for as relates to the matters referred to in Section 10
above, it has or possesses no claim, action, cause of action, right of
offset, demand or damage, known or unknown, asserted or unasserted, at
law or in equity as of the date of this Termination Agreement against
Inter*Act, its affiliates, officers, directors, agents, employees,
shareholders, representatives or attorneys, arising out of or related in
any way to the Purchase Agreement or the Kiosk Agreement or any document
or instrument executed in connection therewith or any action taken or
omitted to be taken in connection therewith;
e. The transactions evidenced by this Termination Agreement
(whether taken separately or in any particular combination) are not
subject to any bulk sales act or similar law and no party shall have any
claim in any of the assets or properties being sold or transferred
pursuant to this Termination Agreement as a result of non-compliance
with any bulk sales act or similar law;
f. To its knowledge, there exists no claim, assertion, assessment,
action, proceeding or cause of action (whether pending or threatened)
which could give rise to (i) its obligation to indemnify Inter*Act
pursuant to Section 9.2 of the Purchase Agreement, or (ii) Inter*Act's
obligation to indemnify CRC or TIS pursuant to Section 9.1 of the
Purchase Agreement (excepting, however, as provided in Section 10
above); and
g. Kiosk Solutions is a division of TIS and has no separate legal
existence apart from TIS.
16. Representations and Warranties of Inter*Act. Inter*Act represents,
warrants and covenants to TIS as follows:
a. The Recitals stated hereinabove are true;
b. It is a corporation duly organized and in good standing under
the laws of the State of North Carolina;
c. It is legally authorized to execute and perform its obligations
under this Termination Agreement, and the execution of this Termination
Agreement
8
and the performance of its oblitations hereunder have been duly
authorized by its Board of Directors, and no further authorization
is necessary; and there are no provisions of any law, federal, state,
or local, or of its articles of incorporation or by-laws, nor is it a
party to any existing contracts or agreements whatsoever, which could
in any way bar or impede it from executing this Termination Agreement
and performing its obligations hereunder, and this Termination
Agreement constitutes its valid, legal and binding obligation;
d. It has or possesses no claim, action, cause of action, right of
offset, demand or damage, known or unknown, asserted or unasserted, at
law or in equity, as of the date of this Termination Agreement against
CRC or TIS, their respective affiliates, officers, directors, agents,
employees, shareholders, representatives or attorneys, arising out of or
related in any way to the Purchase Agreement, the Kiosk Agreement or any
document or instrument executed in connection therewith or any action
taken or omitted to be taken in connection therewith; and
e. To its knowledge, there exists no claim, assertion, assessment,
action, proceeding or cause of action (whether pending or threatened)
which could give rise to (i) its obligation to indemnify CRC and/or TIS
pursuant to Section 9.1 of the Purchase Agreement (excepting, however,
as provided in Section 10 above) or (ii) to CRC's or TIS's obligation to
indemnify Inter*Act pursuant to Section 9.2 of the Purchase Agreement.
17. Binding Nature and Assignment. This Termination Agreement shall be
binding on the parties hereto and their respective successors and permitted
assigns, but no party may assign this Termination Agreement without the
prior written consent of the other parties.
18. Headings. The headings used herein are for reference and
convenience only and do not constitute part of this Termination Agreement.
19. Severability. If any provision of this Termination Agreement
should be held invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby, and any such provision shall be deemed
restated to
9
reflect the original intention of the parties as nearly as possible in
accordance with applicable law.
20. No Waiver. No delay or omission by a party hereto to exercise any right or
power hereunder shall impair such right or power or be construed to be a
waiver thereof. A waiver by any of the parties hereto of any of the
covenants to be performed by the other or any breach thereof shall not be
construed to be a waiver of any succeeding breach thereof or of any other
covenant herein contained.
21. Indemnity. Each party hereby agrees to indemnify and hold harmless each
other party from and against any lability or loss, cost, damage, claim,
expense or judgment (including but not limited to, the amount of any
judgment or settlement and attorneys' fees) arising out of or occasioned by
the breach of any of the terms, conditions, obligations, liabilities,
representations or warranties contained in this Termination Agreement.
22. Additional Documents. Each of the parties each agrees to execute and
deliver to the other party any and all additional documents or instruments
deemed reasonably necessary or appropriate by the other party to effectuate
the terms and conditions of this Termination Agreement.
23. Attorney's Fees. If any legal action or proceeding is brought for the
enforcement of any obligation under this Termination Agreement, or because
of an alleged dispute, breach, default or misrepresentation in connection
with any of the provisions of this Termination Agreement, the prevailing
party shall be entitled to recover reasonable attorneys' fees and other
costs incurred in addition to any other relief to which it may be entitled.
24. Amendments. No amendment, change, waiver, or discharge hereof shall be
valid unless in writing and signed by an authorized representative of the
party against which such amendment, change, waiver, or discharge is sought
to be enforced.
25. Entire Agreement. This Termination Agreement, including any exhibit or
schedule referred to herein, which exhibit or schedule shall be
incorporated herein for all purposes, constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof and
supersedes any representations, understandings or agreements relative
hereto which are not fully expressed herein.
26. Governing Law. This Agreement shall be governed by and construed in all
respects in accordance with the laws of South Carolina without regard to
its conflicts of law rules.
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27. Notices. All notices, consents or other communications required or
permitted to be given by any party hereunder shall be in writing (including
telecopy or similar writing) and shall be given by delivery or by certified
or registered mail, postage prepaid, as follows:
27.1 If to Inter*Act:
00 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Attention: Chief Operating Officer
Telecopy: (000) 000-0000
27.2 If to CRC:
000 Xxxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: President
Telecopy: (000) 000-0000
27.3 If to TIS:
0000 Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: President
Telecopy: (000) 000-0000
or such other address or telecopy number (or other similar number) as any
party may from time to time specify to the other parties hereto. Any
notice, consent or other communication required or permitted to be given
hereunder shall be deemed to have been given on the date of mailing,
personal delivery or telecopy (provided that appropriate answer back is
received) thereof and shall be conclusively presumed to have been received
on the second business day following the date of mailing or, in the case of
personal delivery, the actual day of personal delivery thereof, or, in the
case of telecopy delivery, when such telecopy is transmitted, except that a
change of address shall not be effective until actually received.
28. Defined Terms. Capitalized terms used but not defined herein shall have the
meanings ascribed to such terms in the Kiosk Agreement.
29. Counterparts. This Termination Agreement may be executed in several
counterparts, each of which, when so executed, shall be deemed to be an
original, and such counterparts shall, together, constitute and be one and
the same instrument.
IN WITNESS WHEREOF, the Parties, each intending to be legally bound, have
each caused this Agreement to be executed on the date first set forth above.
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IN WITNESS WHEREOF, the Parties, each intending to be legally bound, have
each caused this Agreement to be executed on the date first set forth above.
INTER*ACT SYSTEMS, INCORPORATED XXXXXXX RESEARCH CORPORATION
By: XXXXXXX XXXXXXXX By:
------------------------- ---------------------------
Xxxxxxx Xxxxxxxx
Its: Chief Operating Officer Its:
Date: 3-24-98 Date:
------------------------- -------------------------
THERMO INFORMATION SOLUTIONS INC.
By: XXXXXX X. XXXXX
-------------------------
Xxxxxx X. Xxxxx
Its: President
Date: 3-24-98
-------------------------
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IN WITNESS WHEREOF, the Parties, each intending to be legally bound, have
each caused this Agreement to be executed on the date first set forth above.
INTER*ACT SYSTEMS, INCORPORATED XXXXXXX RESEARCH CORPORATION
By: By: XXXX XXX
------------------------- ---------------------------
Xxxxxxx Xxxxxxxx
Its: Chief Operating Officer Its: Chairman
Date: Date: 3-24-98
------------------------- -------------------------
THERMO INFORMATION SOLUTIONS INC.
By:
-------------------------
Xxxxxx X. Xxxxx
Its: President
Date:
-------------------------
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Exhibit A
PROMISSORY NOTE
$2,500,000.00
March , 1998
FOR VALUE RECEIVED, the undersigned, INTER*ACT SYSTEMS, INCORPORATED, a
North Carolina corporation (hereinafter and together with any subsequent obligor
hereunder collectively called 'Borrower') hereby promises to pay to the order of
THERMO INFORMATION SOLUTIONS INC., a Delaware corporation (hereinafter and
together with any subsequent holder hereof called 'Lender') the principal sum of
TWO MILLION FIVE HUNDRED THOUSAND AND NO/100 DOLLARS ($2,500,000.00).
The unpaid principal of this Promissory Note ('Note') outstanding from time
to time shall not bear interest; provided that any principal of this Note not
paid when within three (3) business days of its due date (whether at stated
maturity, by acceleration or otherwise) shall, from and after such date until
the date such principal is paid, bear interest at the rate per annum (computed
on the basis of a year of 360 days) of fourteen percent (14%).
The Principal of this Note shall be due and payable in installments as
follows:
a. One Million Dollars ($1,000,000) on May 31, 1998; and
b. One Million Five Hundred Thousand Dollars ($1,500,000) on July 15, 1998.
All payments shall be applied first to accrued interest, and then to
principal; provided that if any other costs or amounts are due, then any monies
received, at the option of Lender, may first be applied to repay such cost or
amount, and the balance, if any, shall be then applied to accrued interest and
then to principal. All payments hereunder shall be paid in lawful money of the
United States of America and shall be made at the office of Lender at its
address at 0000 Xxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxx 00000 Attn: President, or such
other place and to such other persons(s) as Lender may from time to time
designate in writing.
This Note may be prepaid at any time, in whole or in part, without premium
or penalty.
An 'Event of Default' shall exist under this Note (a) in the event the
Borrower shall fail to make any payment within three
1
(3) business days of its due date under this Note, or (b) if there shall
exist an Event of Default as such term is defined in (i) the Initial Kiosk Order
Note issued pursuant to the Termination Agreement (as defined below), or (ii)
any of the Additional Kiosk Order Notes (if any) issued pursuant to the
Termination Agreement (as defined below) (collectively the promissory notes
referred to in (a) and (b) shall be referred to as the 'Ancillary Notes'). Upon
the occurrence of an Event of Default:
(a) any and all of the debts and liabilities of the Borrower to the
Lender, whether contained herein or otherwise, may, at the option of the
Lender, and without demand or notice of any kind, be declared and
immediately become due and payable in full, and the Lender may exercise any
rights available to it at law or in equity, or available under any
agreement relating to any liability of the Borrower to the Lender, and
(b) Interest accruing under this Note shall accrue at the rate per
annum (computed on the basis of a year of 360 days) of fourteen percent
(14%).
If this Note is collected by legal action or through an attorney at law,
any and all costs of collection, including reasonable attorneys' fees, incurred
by the Lender shall be paid by the Borrower. For purposes of this Note,
'reasonable attorneys' fees' shall mean legal fees and expenses charged to
Lender by Lender's outside counsel at ordinary hourly rates and shall not be
calculated based on any of the outstanding balance of this Note.
The failure or forbearance of the Lender to exercise any right hereunder or
under any of the Ancillary Notes, or otherwise granted to it by law, shall not
affect or release the liability of the Borrower, and shall not constitute a
waiver of such right unless so stated by the Lender in writing. Any provision
of this Note which may be unenforceable or invalid under applicable law shall be
ineffective to the extent of the unenforceability or invalidity, but shall not
affect the enforceability or validity of any other provision of this Note.
This Note is issued pursuant to the Termination Agreement by and between
Borrower, Xxxxxxx Research Corporation and Lender dated , 1998
(the 'Termination Agreement'). Capitalized terms used but not otherwise defined
herein shall have the meanings ascribed to such terms in the Termination
Agreement. Time is of the essence in the payment and performance of this Note.
BORROWER HEREBY WAIVES ALL RIGHTS TO PRESENTMENT, PROTEST AND NOTICE OF
DISHONOR.
2
This Note is executed under the hand and seal of the Borrower on the date
first above written.
'BORROWER:'
WITNESSES: INTER*ACT SYSTEMS, INCORPORATED
------------------------- --------------------------------(SEAL)
its: Chief Operating Officer
------------------------- Borrower's
Federal Identification
Number is:----------------------------
Borrower's
------------------------------
Address:------------------------------
------------------------------
3
EXHIBIT B
ID PART NUMBER DESCRIPTION QUANTITY COST EXTENDED $
151 X-XX-000-00-0-0X XXX 0/0 X 0 XXXXXXXX XX 0000 $0.04 $189.12
153 C-HB-001-04-1-0A 1/4 X 1-1/2 XXXXX XXXXX 3848 $0.06 $230.88
154 C-HB-001-04-2-0A 1/4 X 1-1/2 XXXX XXXX BOL 755 $0.84 $633.37
155 C-HB-002-01-1-0A JACKING PLATE SCREW 522 $1.18 $615.96
158 C-HB-006-01-1-0A 1/4-20X1 HEX HEAD BOLT 926 $0.00 $0.00
188 C-HG-003-04-3-0A 1/8 X .650 GRY POP RIVI 5560 $0.41 $2,260.70
190 C-HG-009-04-1-0A 1/16' X 1 XXXXXX PIN 3692 $0.01 $42.46
193 C-HG-012-01-1-0A #6-32 X 3/4 PIM STUD 1997 $0.03 $59.91
194 C-HG-013-01-1-0A #6-32 X 1/2' PEM STUD 2012 $0.03 $60.36
000 X-XX-000-00-0-0X 0/0 XXX XXXX 0000 $0.03 $61.38
196 C-HG-015-01-1-0A 1/4 STAND-OFF 8571 $0.00 $0.00
224 C-HN-002-04-1-0A #6-32 HEX NUTS 26857 $0.01 $282.00
226 C-HN-002-05-1-0A #8-32 HEX NUT 14975 $0.02 $363.89
231 C-HN-003-01-1-0A #6-32 WING NUT, STEEL, 9908 $0.02 $198.16
233 C-HN-004-01-1-0A 1/4-20 X 7/8 COUPLING N 488 $0.12 $58.56
000 X-XX-000-00-0-0X 0-00 X 0/0 XXXX XXX XX 00000 $0.01 $195.95
238 C-HS-002-03-1-0A 4-40 X 3/16 PHL PAN HD 136 $0.69 $94.08
000 X-XX-000-00-0-0X 0-00 X 0/0 XXXX XXX XX 00000 $0.01 $209.24
000 X-XX-000-00-0-0X 0-00 X 0/0 XXXX XXX XX 00000 $0.01 $270.47
245 C-HS-003-06-1-0A 1/4'-20 X 1/2 PHIL PAN M 1511 $0.00 $0.00
000 X-XX-000-00-0-0X #0-00 X 0' XXXX XXX XX 00000 $0.00 $0.00
000 X-XX-000-00-0-0X 0-00 X 0/0 XXXX XXX XX 00000 $0.02 $309.58
256 C-HS-004-07-1-0A 8-32 X 1 PHIL PHD MS 4376 $0.01 $54.70
258 C-HS-005-07-2-0A 10-32 X 1 PHIL PANHD MS 931 $0.02 $14.90
271 C-HS-009-06-4-0A #8 X 3/4 PHIL PAN SMS 9148 $0.02 $182.96
273 C-HS-009-12-4-0A $8 X 1-1/2 PHIL PAN SMS 14328 $0.04 $573.12
274 C-HS-017-02-1-0A GRN 6 X 1/4 FLT HD SMS 6759 $0.01 $67.59
278 C-HS-020-03-2-0A #6 X 3/8 GRY PHIL FLT SMS 33629 $0.01 $460.72
44 C-OM-003-03-1-0B CITOH LOWER PTRDECK 2 19 $6.75 $128.25
46 C-OM-003-03-2-0B CITOH UPPER PTRDECK 2 16 $7.35 $117.60
291 C-KT-001-01-1-0A CUTTER ASSEMBLY CITOHK1 1467 $211.00 $309,537.00
362 C-PR-001-04-1-0A XXXXX XX-0 XXXXXXX XXX 0000 $506.52 $1,429,898.90
5 C-OA-019-01-1-0A MICRON CPU 120MHZ W/XXX 15 $1,759.00 $26,385.00
13 C-OF-002-02-1-0A FAN, CPU 11 $5.00 $55.00
20 C-OL-003-02-1-0A CLEAR FACEPLATE GRAPHIC 443 $5.15 $2,281.45
21 C-OL-003-02-1-0B RED LENS FACEPLATE PANE 17 $0.00 $0.00
22 C-OL-003-02-1-0C RED/CLEAR CENTER FP PAN 15 $0.00 $0.00
23 C-OL-003-02-2-0A STORE ID LABEL 510 $0.33 $170.14
24 C-OL-003-02-3-0A SML GRAPHICS PLATE(MODB 148 $1.65 $244.20
34 C-OM-001-03-1-0A LASER BASE PLATE 137 $3.14 $429.81
35 C-OM-001-03-2-0A LASER AXIAL PLATE 184 $3.15 $579.16
63 C-OM-012-01-1-0A ALUM ACTUATOR ROD FORCT 253 $2.10 $531.30
92 X-XX-000-00-0-0X XXXXXX XXX XXX XX0X/00X 1647 $8.08 $13,307.76
00 X-XX-000-00-0-0X XXXXXXXXX XXX 00XXX 20P 1557 $9.27 $14,433.39
94 C-CA-005-02-2-0A MAGTEK SWIPE READER CAB 2 $10.00 $20.00
EXHIBIT B
ID PART NUMBER DESCRIPTION QUANTITY COST EXTENDED $
---- ------------------ -------------------------- -------- --------- ----------
98 C-CA-008-01-1-0A XXXX PTR CBL 26PIN/DB25 1453 $9.67 $14,050.51
105 C-CA-015-01-1-0A TOUCH SCN EXT CBL 9PF/9 771 $4.27 $3,289,39
109 C-CA-020-01-1-0A KEYBD EXT CBL 6 PIN M/M 39 $2.00 $78.00
000 X-XX-000-00-0-0X XXXXXXX XXX CBL 6' 15 P 18 $2.00 $36.00
111 C-CA-022-01-1-0A 6'3 COND POWER CABLE 168 $1.20 $201.60
112 C-CA-023-01-1-0A PSC LASER READER CABLE 1637 $4.82 $7,890.34
117 C-CA-027-01-1-0A 15' BNC THINNET 171 $3.43 $586.53
119 C-CB-001-01-1-0A KTX CONTROLLER BOARD 173 $272.00 $47,056.00
124 C-CN-001-01-1-0A 1/4 MALE SPADE CONNECTO 4739 $0.20 $947.80
129 C-CN-005-01-1-0A 50 OHM BNC TERMINATORS 162 $0.40 $64.88
130 C-CN-005-01-2-0A 50 OHM BNC TERM W/GRDLO 1051 $1.91 $2,006.88
131 C-CN-005-02-1-0A 50 OHM T BNC CONNECTORS 229 $1.79 $408.77
132 C-CN-006-01-1-0A # 6 STUD FORK TER/CRMP C 802 $0.20 $160.40
000 X-XX-000-00-0-0X XXXXX XXXXXXX XXXXXX XX 1 $433.69 $433.69
135 C-CR-001-01-2-0A SOLECTEK AIR LAN CARD 21 $408.49 $8,578.27
149 C-GL-001-01-1-0A GLS TMP/CTD GRAPHIC PNL 23 $16.85 $387.55
323 C-PL-001-01-1-0A CABINET SHELL OLD GREEN 3 $700.00 $2,100.00
324 C-PL-001-01-2-0A CABINET SHELL WOOD GREE 3 $1,165.00 $3,495.00
340 C-PL-009-03-1-0A ANGLED PLASTIC COVER 56 $1.50 $84.00
342 C-PL-012-01-1-0A KTX LOW PAPER SWITCH 359 $5.00 $1,795.00
343 C-PL-013-01-1-0A LOW PAPER SWITCH BLOCK 1791 $1.39 $2,490.92
359 C-PR-001-03-1-0A KTX PA THERMAL PRINTER 3 $758.00 $2,274.00
375 C-PS-004-01-1-0A KTX POWER SUPPLY 188 $264.50 $49,725.51
377 C-SC-001-01-1-0A MAGSTRIPE CARD READER A 1281 $75.00 $96,075.00
380 C-SC-002-01-2-0A PSC LASER SCANNER OMNID 10 $558.00 $5,580.00
74 C-OS-002-01-1-0A OVERHEAD LIGHT BOX 9 $211.00 $1,899.00
288 C-HW-013-01-1-0A 1/4" LOCK WASHER 1135 $0.02 $19.07
298 C-PK-004-01-1-0A LARGE PALLOT 31X48 206 $15.78 $3,249.65
321 C-PK-020-01-1-0A CRATE 4X4 RUN 3/4" BOTM 4 $400.00 $1,600.00
327 C-PL-003-06-1-0A FACE PLATE FLAPPER 130 $3.69 $480.00
8 C-OD-001-01-1-0A 3.5" FLOPPY DRIVE 3 $59.00 $177.00
10 C-OD-002-02-1-0A 1.6 GIG HD WESTERN DIG 156 $263.32 $41,078.20
73 C-OP-033-01-1-0A A/B SWITCHBOX 8 $19.99 $159.92
136 C-CS-001-01-1-0A AUDIO CARD/SOUND BLASTE 42 $69.00 $2,898.00
137 C-CV-001-02-1-0A VIDEO CARD/PCI W/2MB VR 73 $474.11 $34,609.73
290 C-KB-001-01-1-0A KEYBOARD, DIN CONNECTOR 50 $49.00 $2,450.00
293 C-LT-001-01-1-0A 12" LIGHT XXXX, XXXXX 0000 $9.00 $16,704.00
294 C-LT-001-01-2-0A 8" LIGHT XXXX, XXXXX 0000 $7.00 $12,992.00
295 C-PB-100-01-1-0A SWECOIN 5200 CTRL BOARD 9 $240.00 $2,160.00
373 C-PS-002-01-1-0A MODEM/FAX PROTECTOR 1500 $38.95 $58,425.00
374 C-PS-003-01-1-0A PC POWER SUPPLY 200WATT 23 $32.00 $736.00
134 C-HS-005-07-3-0A 10-32 X 1/2 PHIL PAN MS 45 $0.02 $0.90
14 C-OW-004-01-1-0A 4'2 CONDUCTOR POWER CO 78 $0.86 $66.80
33 C-HG-006-01-2-0A NEW LAZY XXXXX 98 $18.50 $1,813.00
7 C-OM-001-01-3-0A LT MONITOR SUPPORT BRKT 108 $8.36 $902.36
Page 2
EXHIBIT B
ID PART NUMBER DESCRIPTION QUANTITY COST EXTENDED $
73 C-PL-014-01-1-0A PLASTIC SPACER 120 $1.52 $182.64
109 C-HK-002-01-1-0A SML PL KNOB 1/4 X 20 X 1/2 165 $1.73 $284.84
67 C-PK-005-03-1-0A 1/2" WIRE BUCKLES 216 $0.02 $4.84
38 C-HH-001-01-2-0A LOWER DOOR HINGE 3" 261 $8.26 $2,155.86
81 C-SP-001-01-1-0A 3" AUDIO SPEAKER 282 $2.44 $688.59
132 C-HG-002-02-2-0A 6-32 X 1/4 AL STDOFF FM/F 346 $0.02 $5.36
133 C-HS-004-01-2-0A 8-32 X 1/8 PHIL PAN MS 429 $0.10 $40.76
50 C-HN-002-09-1-0A 5/16" 18 NYLOX NUT 436 $0.04 $17.44
60 C-HS-019-13-2-0A GRY 6 X 5/16 PHIL FLT S 520 $0.50 $259.38
49 C-HN-002-08-1-0A 1/4 X 20 HEX NUT 586 $0.01 $4.92
52 C-HR-001-01-1-0A RETAINING RING 1/4" INSDM 606 $0.26 $160.17
46 C-HN-002-04-2-0A #6-32 NYLOX HEX NUT 674 $0.04 $11.39
68 C-PK-006-01-1-0A KIOSK BAGS FOR FOAMING 654 $0.42 $274.68
106 C-OM-014-01-1-0A TOP LOCK CATCH PLATE 773 $0.97 $749.81
77 C-PS-001-01-1-0A FIVE OUTLET PSUPPLY 794 $19.05 $15,128.64
26 C-HB-004-01-1-0A SNAKE EYE SECURITY BOLT 869 $0.29 $252.01
131 C-HS-009-03-1-0A #8 X 3/8 GRY PHIL PSMS 1128 $0.38 $429.32
62 C-HW-010-01-1-0A #12 FLAT WASHERS 1237 $0.01 $12.37
56 C-HS-007-01-1-0A 10-32 X 1/2" KEYHOLE SC 1286 $1.23 $1,581.78
129 C-HS-003-02-1-0A 3/8" BINDING POST SET 1308 $0.07 $91.56
47 C-HN-001-07-1-0A 1/2-13 HEX NUT (FOR KIO 1742 $0.32 $557.44
28 C-HG-001-01-1-0A LOWER VENT STRAIN RELIE 1776 $0.06 $110.11
61 C-HW-009-01-1-0A #10 FLAT WASHERS 2673 $0.01 $21.38
97 C-HG-008-02-1-0A 8" THICK PLSTC TIE WRAP 2731 $0.04 $109.24
70 C-PK-016-03-1-0A SERIAL# TAPE 1/2" SILVER 2734 $0.02 $63.43
136 C-HS-008-06-4-0A #6 X 3/4 PHIL PAN SMS 3378 $0.01 $33.78
25 C-HB-001-03-2-0A 1/4 X 1 XXXX CARRIAGE BOL 3821 $0.17 $640.78
92 C-HG-008-03-2-0A 4" PLASTIC TIE WRAPS 4353 $0.02 $87.06
58 C-HS-008-05-2-0A GRY 6-32 X 3/4 PHIL FLT M 4432 $0.10 $449.40
23 C-CN-003-01-1-0A 4 POSITION TERMINAL XXX 0000 $0.79 $4,044.01
89 C-HW-012-01-1-0A 1/4" USS FLAT WASHERS 5146 $0.02 $102.92
98 C-HG-008-03-1-0A 8" THIN PLSTC TIE WRAPS 6937 $0.02 $118.62
137 C-HS-009-05-4-0A #8 X 5/8 PHIL PAN SMS 7926 $0.02 $158.52
127 C-AD-001-02-2-0A SCOTCHMATE FASTENER FEM 8448 $0.07 $558.41
34 C-HG-008-02-2-0A 24" PLASTIC TIE WRAPS 8526 $0.28 $2,387.28
93 C-HW-004-01-1-0A #4 FLAT WASHERS 8658 $0.01 $86.58
00 X-XX-000-00-0-0X #0 XXXX XXXXXXX 00000 $0.01 $140.75
00 X-XX-000-00-0-0X 0-00 X 0/0 XXXX XXX XX 00000 $0.02 $233.40
126 X-XX-000-00-0-0X XXXXXXXXXX XXXXXXXX XXX 00000 $0.07 $796.37
51 C-HN-003-05-1-0A #8-32 NYLOX HEX NUTS 13608 $0.01 $171.46
00 X-XX-000-00-0-0X 0-00 X 0/0 XXXX XXX XX 00000 $0.01 $144.52
90 C-HN-002-07-1-0A 1/4-20 NYLOX HEX NUT 18372 $0.02 $369.28
31 C-HG-003-04-2-0A 1/8 X 1/2 GRY POP RIVET 62498 $0.04 $2,499.92
$2,296,618.16
Page 3
Exhibit C
Inter*Act Systems, Incorporated
00 Xxxxxxxx Xxxxxx [XXXX]
Xxxxxxx, Xxxxxxxxxxx 00000
Tel 000.000.0000, Fax 000.000.0000
PURCHASE ORDER
PO NUMBER: 01-9830
-------
To: Thermo Information Solutions, Inc. Ship To: Inter*Act Systems, Incorporated
00 Xxx Xxxxxxxx Xxxx 00 Xxxxxxxx Xxxxxx
Xxxx Xxxxxxxx, XX 00000 Xxxxxxx, Xxxxxxxxxxx 00000
(000) 000-0000 (000) 000-0000
----------------------------------------------------------------------------------------------------------
P.O. DATE REQUISITIONER SHIP VIA F.O.B. TERMS
----------------------------------------------------------------------------------------------------------
1/16/98 Xxxxxxx Xxxxxxx TBD NET 45
----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
QTY UNIT DESCRIPTION UNIT PRICE TOTAL
----------------------------------------------------------------------------------------------------------
89 MOD B-2 Kiosk w/ Generic Software, Hardwired $7,018.00 $624,602.00
with a NE2000 compatible card.
89 Retrofit charge (all metal replaced) $500.00 $44,500.00
36 MOD B-2 Kiosk w/ Generic Software, Hardwired $7,018.00 $252,648.00
with a NE2000 compatible card.
Terms: Net 45 for shipment.
Shipment of all 125 units shall
be on April 3, 1998
----------------------------------------------------------------------------------------------------------
Xxxx To: Inter*Act Systems, Incorporated SUBTOTAL $921,750.00
Accounts Payable SHIPPING & HANDLING
00 Xxxxxxxx Xxxxxx SALES TAX
Xxxxxxx, Xxxxxxxxxxx 00000 OTHER ------------
Tel 000.000.0000, Fax 000.000.0000 TOTAL ------------
Xxxxxxx Xxxxxxxx 1-16-98
------------------------------------------------ --------------------------------------------------
Ordered By: Date Authorized By: Date
Please note that this Purchase Order expires one year from P.O. Date as noted above. Inter*Act will not assume
liability for any unshipped product after expiration date.
SCHEDULE 1
Final Inspection and Internal Packing (C-FP-003-01-1-0A thru C-FP-003-01-6-0C)
1) Clean any dirty spots on Kiosk. The glued edges on the hood should be clean
and not discolored. Remove any obvious markings from the inside of the
cabinet.
2) Insure that the speakers are secure and the proper mounting hardware has
been used.
3) Insure that the hood and doors are properly aligned. Verify that the upper
hood lock is keyed "C346A" and operates correctly. Verify the bottom door
cam lock is keyed "C415A".
4) Verify holes are drilled and screws/washers installed on back top of hood
and holes are drilled on upper signage panel.
5) Inspect lower signage panel for alignment, cleanliness, sharp edges, and
visual damage.
6) Inspect the cam brace and make sure all cam brace screws are securely
mounted to the hood and that the cam brace is properly aligned and secure.
7) Inspect the lower grill, hubble sub assembly and signage bolts on the back
of the cabinet.
8) Inspect the touch screen, monitor, scanner and scanner glass for loose
hardware, damage and cleanliness.
9) Insure that all tie plates are secure and cables are routed such that
adequate service loops exist and cables are not subject to damage.
10) Inspect the printer assembly, printer power supply installation, and main
power supply installation.
11) Inspect the computer installation on the lazy Xxxxx and verify that the
keyboard is centered and secured with Velcro on the keyboard shelf.
12) Verify all cables are connected and secure.
13) Verify printer self test, coupons, and recipes are located on the touch
screen.
14) Secure the printer assembly rail to the right hand monitor support bracket
lower centerpiece using a 24" cable tie.
15) Insert the pink foam wrapped Delrin paper spool (C-PL-007-01-1-0A) between
the printer and the right hand monitor support bracket.
16) Insure Swecoin printer paper release lever is in down position prior to
shipping.
17) Inspect wire routing for loose ties, service loops, damage and loose
hardware.
18) For the MOD-B2 and MOD-B3 hardwire configurations, place (2ea)25' 10BaseT
ethernet cables on top of the computer. Insert (5 ea.) foam blocks, 1
between the computer and 5-outlet power strip, 1 on each side of the
computer and 2 between the keyboard and monitor.
19) Install the Kiosk part number/serial number warning label to the lower
right hand portion of the lower vent located on the back of the Kiosk
cabinet. Initial step 0060 on route sheet.
20) Install pink foam over the monitor for protection during shipping. Verify
and update serial numbers on route sheet.
21) Disconnect power and verify that the main power cord is attached to the
upper left-hand keyhole screw.
22) Finals inspect the exterior of the Kiosk. Using a file or a sanding
block, smooth out any rough joints (glued edges) on the upper hood and
bottom door of the Kiosk. There is no sanding on the shell portion of the
Kiosk. Inspect for rough corners (i.e. where upper hood meets the bottom
door) and debur any sharp edges.
23) Inspect internal packing and initial the "Final Inspection/Internal
Packing" step 0070 on the route sheet.
24) I/A rep initial route sheet step 0080 prior to shipping.
Exhibit D
PROMISSORY NOTE
(Initial Kiosk Order Note)
$921,750.00
---------------, 1998
FOR VALUE RECEIVED, the undersigned INTER*ACT SYSTEMS, INCORPORATED, a
North Carolina corporation (hereinafter and together with any subsequent obligor
hereunder collectively called "Borrower") hereby promises to pay to the order of
THERMO INFORMATION SOLUTIONS INC., a Delaware corporation (hereinafter and
together with any subsequent holder hereof called "Lender") the principal sum of
NINE HUNDRED TWENTY-ONE THOUSAND SEVEN HUNDRED FIFTY AND N0/100 DOLLARS
($921,750.00).
The unpaid principal of this Promissory Note ("Note") outstanding from
time to time shall not bear interest; provided that any principal of this Note
not paid when due (whether at stated maturity, by acceleration or otherwise)
shall, from and after the date when due until the date such principal is paid,
bear interest at the rate per annum (computed on the basis of a year of 360
days) of fourteen percent (14%).
The Principal of this Note shall be due and payable on May 19, 1998.
All payments shall be applied first to accrued interest, and then to
principal, provided that if any other costs or amounts are due, than any monies
received, at the option of Lender, may first be applied to repay such cost or
amount, and the balance, if any, shall be then applied to accrued interest and
then to principal. All payments hereunder shall be paid in lawful money to the
United States of America and shall be made at the office of Lender at its
address at 0000 Xxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxx 00000 Attn: President, or such
other place and to such other person(s) as Lender may from time to time
designate in writing.
This Note may be repaid at any time, in whole or in part, without
premium or penalty.
An "Event of Default" shall exist under this Note (a) in the event the
Borrower shall fail to make any payment due under this Note, or (b) if there
shall exist an Event of Default as such term is defined in (i) the Promissory
Note in the principal amount of Two Million Five Hundred Thousand Dollars
($2,500,000) dated March , 1998 executed by Borrower in favor of Lender or (ii)
any other promissory note executed and delivered by Borrower to Lender
(collectively the promissory notes referred to in (b) shall be referred to as
the "Ancillary Notes"). Upon the occurrence of an Event of Default:
(a) any and all of the debts and liabilities of the Borrower to the
Lender, whether contained herein or otherwise, may, at the option of the
Lender, and without demand or notice of any kind, be declared and
immediately become due and payable in full, and the Lender may exercise any
rights available to it at law or in equity, or available under any
agreement relating to any liability of the Borrower to the Lender; and
(b) interest accruing under this Note shall accrue at the rate per
annum (computed on the basis of a year of 360 days) of fourteen percent
(14%).
If this Note is collected by legal action or through an attorney at law,
any and all costs of collection, including reasonable attorneys fees, incurred
by the Lender shall be paid by the Borrower.
The failure or forbearance of the Lender to exercise any right hereunder
or under either of the Ancillary Notes, or otherwise granted to it by law, shall
not affect or release the liability of the Borrower, and shall not constitute a
waiver of such right unless so stated by the Lender in writing. Any provision of
this Note which may be unenforceable or invalid under applicable law shall be
ineffective to the extent of the unenforceability or invalidity, but shall not
affect the enforceability or validity of any other provision of this Note.
This Note is issued pursuant to the Termination Agreement dated March ,
1998 by and between Lender, Xxxxxxx Research Corporation and Borrower, and is
subject to the terms and conditions of said Termination Agreement.
Time is of the essence in the payment and performance of this Note.
BORROWER HEREBY WAIVES ALL RIGHTS TO PRESENTMENT, PROTEST AND NOTICE OF
DISHONOR.
This Note is executed under the hand and seal of the Borrower on the
date first above written.
"BORROWER"
WITNESSES: INTER*ACT SYSTEMS, INCORPORATED
------------------------ ------------------------------(SEAL)
Its: Chief Operating Officer
------------------------
Borrower's
Federal Identification Number is:
Borrower's
Address:-------------------------
2
Exhibit E
[LOGO] Inter*Act Systems, Inc.
00 Xxxxxxxx Xxxxxx XXXXXXXX
Xxxxxxx, XX 00000 ORDER
000.000.0000 * Fax 000.000.0000
The following number must appear on all related correspondence,
shipping papers, and invoices: PO NUMBER: 02-9827
To: Ship To: Xxx Xxxxx/Southern Warehouse
Thermo Information Solutions, Inc. Inter*Act Systems, Inc.
00 Xxx Xxxxxxxx Xxxx 00 Xxxxxxxx Xxx.
Xxxx Xxxxxxxx, XX 00000 Xxxxxxx, XX. 00000
(000) 000-0000 (000) 000-0000
----------------------------------------------------------------------------------------------------------
P.O. DATE REQUISITIONER SHIP VIA F.O.B. POINT TERMS
----------------------------------------------------------------------------------------------------------
2/18/98 Xxxxxxx Xxxxxxx TBD 30 days
----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
QTY UNIT DESCRIPTION UNIT PRICE TOTAL
----------------------------------------------------------------------------------------------------------
225 MOD B-2 Kiosk w/ Generic Software, Hardwired $7,000.00 $1,575,000.00
with a NE2000 compatible card.
Shipment shall be as follows:
35 Units on or before May 1,1998
40 Units on or before May 8,1998
50 Units on or before May 15,1998
50 Units on or before May 22,1998
50 Units on or before May 29,1998
Copy of Computer configuration also attached.
----------------------------------------------------------------------------------------------------------
SUBTOTAL $1,575,000.00
SALES TAX
SHIPPING & HANDLING
OTHER --------------
$1,575,000.00
TOTAL --------------
INTER*ACT SYSTEMS, INC.
00 Xxxxxxxx Xxxxxx * Xxxxxxx, XX 00000
Tel 000.000.0000 * Fax 000.000.0000
Authorized by Xxxxxxx Xxxxxxxx Date 2-25-98
--------------------------------------------------
Exhibit F
PROMISSORY NOTE
(Additional Kiosk Order Note)
$_____________ ______________1998
FOR VALUE RECEIVED, the undersigned, INTER*ACT SYSTEMS, INCORPORATED, a
North Carolina Corporation (hereinafter and together with any subsequent obligor
hereunder collectively called 'Borrower') hereby promises to pay to the order of
THERMO INFORMATION SOLUTIONS, INC., a Delaware corporation (hereinafter and
together with any subsequent holder hereof called 'Lender') the principal sum of
____________________________________________________________________________
AND NO/100 DOLLARS ($________.00).
The unpaid principal of this Promissory Note ('Note') outstanding from time
to time shall not bear interest; provided that any principal of this Note not
paid within three (3) business days of its due date (whether at stated maturity,
by acceleration or otherwise) shall, from and after the date when due until the
date such principal is paid, bear interest at the rate per annum (computed on
the basis of a year of 360 days) of fourteen percent (14%).
The Principal of this Note shall be due and payable thirty (30) days from
the date set forth above.
All payments shall be applied first to accrued interest, and then to
principal, provided that if any other costs or amounts are due, then any monies
received, at the option of Lender, may first be applied to repay such cost or
amount, and the balance, if any, shall be then applied to accrued interest and
then to principal. All payments hereunder shall be paid in lawful money of the
United States of America and shall be made at the office of Lender at its
address at 0000 Xxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxx 00000 Attn: President, or such
other place and to such other person(s) as Lender may from time to time
designate in writing.
This Note may be repaid at any time, in whole or in part, without premium
or penalty.
An 'Event of Default' shall exist under this Note (a) in the event the
Borrower shall fail to make any payment within three (3) business days of its
due date under this Note, or (b) if there shall exist an Event of Default as
such term is defined in (i) any other Additional Kiosk Order Note executed and
delivered by Borrower in favor of Lender pursuant to the Termination Agreement
referred to below, or (ii) the Promissory Note in the principal amount of Nine
Hundred Twenty-One Thousand Seven Hundred Fifty Dollars ($921,750) (iii) the
Promissory Note in the principal amount of Two Million Five Hundred Thousand
($2,500,000) dated _____________, 1998 executed by Borrower in favor of Lender
(collectively the promissory notes referred to in (b) shall be referred to as
the 'Ancillary Notes'). Upon the occurrence of an Event of Default:
(a) any and all of the debts and liabilities of the Borrower to the
Lender, whether contained herein or otherwise, may, at the option of the
Lender, and without
demand or notice of any kind, be declared and immediately become due and
payable in full, and the Lender may exercise any rights available to it at
law in equity, or available under any agreement relating to any liability
of the Borrower to the Lender, and
(b) interest accruing under this Note shall accrue at the rate per
annum (computed on the basis of a year of 360 days) of fourteen percent
(14%).
If this Note is collected by legal action or through an attorney at law,
any and all costs of collection, including reasonable attorneys fees, incurred
by the Lender shall be paid by the Borrower.
The failure or forbearance of the Lender to exercise any right hereunder or
under any of the Ancillary Notes, or otherwise granted to it by law, shall not
affect or release the liability of the Borrower, and shall not constitute a
waiver of such right unless so stated by the Lender in writing. Any provision of
this Note which may be unenforceable or invalid under applicable law shall be
ineffective to the extent of the unenforceability or invalidity, but shall not
affect the enforceability or validity of any other provision of this Note.
This Note is issued pursuant to the Termination Agreement by and between
Borrower, Xxxxxxx Research Corporation and Lender dated March ____, 1998 (the
'Termination Agreement'), and is subject to the terms and conditions of the
Termination Agreement.
Time is of the essence in the payment and performance of this Note.
BORROWER HEREBY WAIVES ALL RIGHTS TO PRESENTMENT, PROTEST AND NOTICE OF
DISHONOR.
This Note is executed under the hand and seal of the Borrower on the date
first above written.
'BORROWER:'
WITNESSES: INTER*ACT SYSTEMS, INCORPORATED
_____________________________ ________________________________(SEAL)
Its:___________________________________
_____________________________ Borrower's
Federal Identification Number is:______
Borrower's
Address:_______________________________
_______________________________________
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PROMISSORY NOTE
$2,500,000.00
March 24, 1998
FOR VALUE RECEIVED, the undersigned, INTER*ACT SYSTEMS, INCORPORATED, a
North Carolina corporation (hereinafter and together with any subsequent obligor
hereunder collectively called 'Borrower') hereby promises to pay to the order of
THERMO INFORMATION SOLUTIONS INC., a Delaware corporation (hereinafter and
together with any subsequent holder hereof called 'Lender') the principal sum of
TWO MILLION FIVE HUNDRED THOUSAND AND NO/100 DOLLARS ($2,500,000.00).
The unpaid principal of this Promissory Note ('Note') outstanding from time
to time shall not bear interest; provided that any principal of this Note not
paid when within three (3) business days of its due date (whether at stated
maturity, by acceleration or otherwise) shall, from and after such date until
the date such principal is paid, bear interest at the rate per annum (computed
on the basis of a year of 360 days) of fourteen percent (14%).
The Principal of this Note shall be due and payable in installments as
follows:
a. One Million Dollars ($1,000,000) on May 31, 1998; and
b. One Million Five Hundred Thousand Dollar ($1,500,000) on July 15,
1998.
All payments shall be applied first to accrued interest, and then to
principal; provided that if any other costs or amounts are due, then any monies
received, at the option of Lender, may first be applied to repay such cost or
amount, and the balance, if any, shall be then applied to accrued interest and
then to principal. All payments hereunder shall be paid in lawful money of the
United States of America and shall be made at the office of Lender at its
address at 0000 Xxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxx 00000 Attn: President, or
such other place and to such other person(s) as Lender may from time to time
designate in writing.
This Note may be prepaid at any time, in whole or in part, without premium
or penalty.
An 'Event of Default' shall exist under this Note (a) in the event the
Borrower shall fail to make any payment within three (3) business days of its
due date under this Note, or (b) if there shall exist an Event of Default as
such term is defined in (i) the Initial Kiosk Order Note issued pursuant to the
Termination Agreement (as defined below), or (ii) any of the Additional Kiosk
Order Notes (if any) issued pursuant to the Termination Agreement (as defined
below) (collectively the promissory notes referred to in (a) and (b) shall be
referred to as the 'Ancillary Notes'). Upon the occurrence of an Event of
Default:
(a) any and all of the debts and liabilities of the Borrower to the
Lender, whether contained herein or otherwise, may, at the option of the
Lender, and without demand or notice of any kind, be declared and
immediately become due and payable in full, and the Lender may exercise any
rights available to it at law or in equity, or available under any
agreement relating to any liability of the Borrower to Lender, and
(b) Interest accruing under this Note shall accrue at the rate per
annum (computed on the basis of a year of 360 days) or fourteen percent
(14%).
If this Note is collected by legal action or through an attorney at law,
any and all costs of collection, including reasonable attorneys' fees, incurred
by the Lender shall be paid by the Borrower. For purposes of this Note,
'reasonable attorneys's fees' shall mean legal fees and expenses charged to
Lender by Lender's outside counsel at ordinary hourly rates and shall not be
calculated based on any of the outstanding balance of this Note.
The failure or forbearance of the Lender to exercise any right hereunder or
under any of the Ancillary Notes, or otherwise granted to it by law, shall not
affect or release the liability of the Borrower, and shall not constitute a
waiver of such right unless so stated by the Lender in writing. Any provision of
this Note which may be unenforceable or invalid under applicable law shall be
ineffective to the extent of the unenforceability or invalidity, but shall not
affect the enforceability or validity of any other provision of this Note.
This Note is issued pursuant to the Termination Agreement by and between
Borrower, Xxxxxxx Research Corporation and Lender dated March 24, 1998 (the
'Termination Agreement'). Capitalized terms used but not otherwise defined
herein shall have the meanings ascribed to such terms in the Termination
Agreement. Time is of the essence in the payment and performance of this Note.
BORROWER HEREBY WAIVES ALL RIGHTS TO PRESENTMENT, PROTEST AND NOTICE OF
DISHONOR.
This Note is executed under the hand and seal of the Borrower on the date
first above written.
2
This Note is executed under the hand and seal of the Borrower on the date
first above written.
'BORROWER:'
WITNESSES: INTER*ACT SYSTEMS, INCORPORATED
Xxxx Xxxxxxxxxx XXXXXXX XXXXXXXX
_____________________________ _________________________________(SEAL)
its: Chief Operating Officer
Xxxxxxx Xxxxxx
_____________________________ Borrower's
Federal Identification
Number is: 00-0000000
Address: 00 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
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