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EXHIBIT 2.2
ASSET ACQUISITION AGREEMENT
THIS ASSET ACQUISITION AGREEMENT (this "Agreement") is entered into as
of December 9th, 1994 by and between ACCELGRAPHICS, INC. ("Purchaser"), a
California corporation with its principal address at 0000 Xxxxx Xxxxxx, Xxxxx
Xxxxx, Xxxxxxxxxx 00000-0000, and KUBOTA GRAPHICS CORPORATION ("Seller"), a
California corporation with its principal address at 0000 Xxxxx Xxxxxx, Xxxxx
Xxxxx, Xxxxxxxxxx 00000-0000.
RECITALS
A. Seller is engaged in the business of developing, manufacturing,
marketing and selling graphics computer systems (the "Seller Business"); and
B. The parties desire that Seller sell, assign, transfer and convey to
Purchaser, and that Purchaser purchase from Seller, certain specific assets of
Seller relating to the Seller Business and further that Seller delegate certain
liabilities to Purchaser, and that Purchaser assume such specific liabilities
relating to the Seller Business, all upon the terms and conditions hereinafter
set forth.
NOW, THEREFORE, in consideration of the representations, warranties and
agreements herein contained, the parties agree as follows:
1. Definitions. As used in this Agreement, the following terms shall
have the meanings set forth or referenced below:
1.1 "Assumed Liabilities" shall have the meaning set forth in
Section 2.2 hereof.
1.2 "Closing" shall mean the closing of the transactions
contemplated by this Agreement.
1.3 "Closing Date" shall mean December 28, 1994 or such other
date as the parties shall mutually agree to in writing.
1.4 "Contracts" shall mean the purchase orders, contracts,
agreements (including all known and unknown evaluation agreements) and
arrangements as listed on Exhibit A hereto, including all rebates, refunds,
deposits or credits with respect thereto and all claims, demands, causes of
action and other rights of Seller thereunder.
1.5 "DEC" shall mean Digital Equipment Corporation.
1.6 "Incidental Expenses" shall mean all Seller expenses
incurred from November 4, 1994 until the Closing and subsequent to the Closing
Date, which are attributable to Purchaser's business operations and include
Seller's payment of Purchaser's employees' salaries, MIS expenses and other
expenses arising out of Purchaser's normal
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course of business which is part of the intercompany accounts receivables and as
more fully described in Exhibit H.
1.7 "Inventory" shall mean the inventory related to the Seller
Business listed on Exhibit B hereto, as such Exhibit shall be amended as of the
Closing Date to reflect changes therein occurring in the ordinary course of the
Seller Business prior to the Closing.
1.8 "License Agreements" shall mean the Comprehensive
Settlement Agreement among Seller, Cabot Computer, Inc., Cabot Corporation and
DEC in the form attached hereto as Exhibit C-1 (in this Exhibit C-1, any
references to ActionGraphics shall mean Purchaser), which will take effect upon
execution by Kubota Corporation, the Assignment and Assumption Agreement
(Service Agreement) dated as of September 29, 1994 between Seller and Picker in
the form attached hereto as Exhibit C-2, and the Comprehensive Manufacturing and
Source Code License Agreement dated as of October 6, 1994 between Seller and
Picker in the form attached hereto as Exhibit C-3.
1.9 "Picker" shall mean Picker International, Inc.
1.10 "Purchase Price" shall have the meaning set forth in
Section 2.3 hereof.
1.11 "Purchased Assets" shall mean the Contracts, the
Inventory, the Transferred Technology and the Tangible Assets.
1.12 "Sierra 48ZI" shall mean Seller's PCI-based graphics
product with additional frame buffer memory (48 planes total) and imaging
support (contrast enhancement and bilinear interpolation), together with
associated imaging libraries, as more fully described in Exhibit D hereto.
1.13 "Tangible Assets" shall mean all of the equipment,
furniture and other tangible assets and properties listed on Exhibit E hereto,
as such Exhibit shall be amended to reflect changes therein occurring in the
ordinary course of the Seller Business prior to the Closing.
1.14 "Trade Payables" shall mean the accounts payable related
to Inventory, Tangible Assets and consulting services listed on Exhibit F
hereto, as such Exhibit shall be amended to reflect changes therein occurring in
the ordinary course of the Seller Business prior to the Closing.
1.15 "Transferred Technology" shall mean all of Seller's
interests in intellectual property rights relating to the Sierra 48ZI and the
technology listed in Exhibits G-I and G-2 hereto, including, without limitation,
any patents, trademarks, service marks, copyrights end applications therefor and
registrations thereof, mask works and mask work registrations, trade names and
trade styles, trade secrets, know-how, processes, formulae, business and
marketing plans, and confidential and other proprietary
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information owned by Seller or that may be assigned by Seller to Purchaser under
the terms of this Agreement.
2. Purchase and Sale of Purchased Assets; Assumption of Liabilities.
2.1 Purchase and Sale. Subject to and upon the terms and
conditions of this Agreement, effective as of the Closing, Seller agrees to
sell, assign, transfer, convey and deliver to Purchaser, and Purchaser agrees to
purchase from Seller, all of Seller's right, title and interest in and to the
Purchased Assets, subject to Section 2.5; provided, however, that all rights
acquired by Purchaser in and to the Transferred Technology shall be subject to
the rights granted to DEC and Picker pursuant to the License Agreements, and
Purchaser specifically acknowledges and affirms that (i) Kubota Corporation is
authorized to release the escrowed material to DEC if DEC cannot procure the
48ZI from Purchaser, as defined under the Comprehensive Settlement Agreement as
set forth in Exhibit C-1 and (ii) in the event the escrowed materials are
released to DEC, Kubota Corporation is authorized, on Purchaser's behalf, to
grant DEC the non-exclusive manufacturing rights to the 48ZI product, all as set
forth in Exhibit C-1.
Seller's sale of the Transferred Technology to Buyer shall not
affect Kubota Corporation's or Kubota Computer, Inc.'s licenses of OpenGL as set
forth in Addendum Number One to the OpenGL License agreement
Physical delivery of the Purchased Assets shall be made at the
Sellers place of business. Risk of loss, damage or destruction to the Purchased
Assets after the Closing shall be borne by Purchaser, except to the extent such
loss, damage or destruction shall have been caused by Seller's negligence or
willful misconduct.
2.2 Assumption of Liabilities.
(a) Subject to the terms and conditions of this
Agreement, effective as of the Closing, Seller shall delegate to Purchaser and
Purchaser shall assume from Seller and pay, perform and discharge according to
their terms all of the following liabilities and obligations of Seller (the
"Assumed Liabilities"):
(i) The Trade Payables;
(ii) contractual liabilities or obligations
arising from and after the Closing Date under the Contracts, subject to Section
2.5, and
(iii) any federal, state or local taxes,
including, but not limited to, sales taxes, use taxes, conveyance taxes,
transfer taxes, filing fees, recording fees, reporting fees and other similar
duties, taxes and fees, if any, imposed upon, or resulting from, the transfer of
the Purchased Assets hereunder. Purchaser shall remit such federal, state or
local taxes to Seller, who in turn shall remit such taxes to the proper taxing
authorities.
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(b) Purchaser does not assume, and Seller does not transfer,
assign or delegate, any liabilities or obligations, whether or not related to
the Seller Business, and whether currently fixed and determined, contingent or
otherwise, other than the Assumed Liabilities to be expressly assumed by
Purchaser pursuant to Section 2.2(a) hereof. All such liabilities and
obligations not expressly assumed by Purchaser ("Excluded Liabilities") shall
remain liabilities of Seller, which shall be solely liable to perform and
discharge such liabilities and obligations. Excluded Liabilities shall include,
without limitation, the following:
(i) Any income or similar taxes based upon or
measured by revenue, income, profit or gain from the transfer of the Purchased
Assets or the operation of the Seller Business prior to the Closing;
(ii) any outstanding obligations of Seller for
borrowed money due to banks or other lenders;
(iii) any obligation of Seller for legal, accounting
or other professional fees, or any other costs or expenses of Seller which am
related to the consummation of the transactions contemplated herein.
2.3 Purchase Price. In consideration for Purchaser's purchase
of the Purchased Assets and payment of the Incidental Expenses. Purchaser shall
pay to Seller the sum of $779,668 (the "Purchase Price"), payable at the Closing
by check or by wire transfer to an account designated in writing by Seller.
2.4 License of Sierra 48ZI Imagine Libraries and "Zero Time
Clear" Feature. Purchaser hereby grants to Seller and Seller's parent, Kubota
Corporation and any designated Kubota Corporation subsidiary or affiliate,
(collectively, "Seller's Successor(s) in Interest"), a worldwide, nonexclusive,
(subject to Section 3), royalty-free license to modify or have modified the
Sierra 48ZI imaging libraries and the "Zero Time Clear" feature identified in
Exhibit G-1, to the limited extent necessary (i) to satisfy Seller's obligations
under the License Agreements to modify any portion of the Sierra 48ZI imaging
libraries or the "Zero Time Clear" feature that may infringe intellectual
property rights of any third party, or (ii) to correct software bugs or make
enhancements to the 4821 imaging libraries or "Zero Time Clear" feature and
provide other services as part of the support and/or value-added software
services Seller's Successor(s) in Interest offers to its existing customers.
2.5 Assignments Requiring Third-Party Consents. If the
assignment of any Contract hereunder shall require the consent of any third
party, such assignment shall be subject to and effective as of the granting of
such consent. Purchaser shall be solely responsible for obtaining such
third-party consents, provided that Seller shall assist Purchaser as is
reasonably necessary, at Purchaser's expense, in obtaining such third-party
consents.
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2.6 Allocation. The Purchase Price shall be allocated for all
federal, state and local tax purposes among the Purchased Assets in the manner
set forth on Exhibit I hereto. Neither Purchaser nor Seller shall take any
position for purposes of any federal, state or local income tax respecting the
allocation of the Purchase Price which is inconsistent with such allocation.
2.7 Reduction in Purchase Price. On or before the Closing,
Purchaser shall take an inventory of the Tangible Assets and the Inventory. In
the event, for whatever reason, any of the tangible assets or the Inventory is
no longer available for delivery to Purchaser at the Closing, the Purchase Price
shall be reduced by the dollar amount set forth opposite such missing item as
set forth in Exhibit B or Exhibit E, as the case may be.
3. The Closing. The Closing shall take place at the offices of Venture
Law Group, located at 0000 Xxxx Xxxx Xxxx, Xxxxx Xxxx, XX 00000, or at such
other location as Seller and Purchaser may agree, at 10:00 a.m., Pacific Time,
on the Closing Date.
3.1 Instruments of Transfer and Sale. At the Closing, Seller
shall deliver to Purchaser such bills of sale, endorsements, assignments and
other good and sufficient instruments of transfer, conveyance and assignment, in
form customary for such transactions and reasonably satisfactory to Purchaser's
counsel, as shall be effective to vest in Purchaser good title to the Purchased
Assets (other than assets subject to equipment leases, as to which a valid
leasehold interest will be conveyed by assignment of such equipment leases).
3.2 Other Documents. Each party shall deliver to the other at
the Closing such other documents, certificates, schedules, agreements and
instruments required by this Agreement to be delivered at such time.
4. Representation and Warranties of Seller. Seller hereby represents
and warrants to Purchaser as follows:
4.1 Organization. Seller is a corporation duly incorporated,
validly existing and in good standing under the laws of the State of California.
4.2 Authorization. Seller has all requisite power and
authority to execute and deliver this Agreement and, at the time of the Closing,
will have all requisite power and authority to carry out the transactions
contemplated by this Agreement. All necessary corporate action on the part of
the Seller has been taken to authorize the execution and delivery of this
Agreement. This Agreement has been duly and validly executed and delivered by
Seller and constitutes a valid and binding agreement of Seller, enforceable
against Seller in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally or by general equitable principles or the
exercise of judicial discretion in accordance with such principles.
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4.3 No Conflicts; Consents. The execution and the delivery of
this Agreement by Seller do not, and the consummation of the transactions
contemplated hereby and compliance with the provisions hereof will not, conflict
with, result in a breach of, constitute a default (with or without notice or
lapse of time, or both) under or violation of, or result in the creation of any
lien, charge or encumbrance pursuant to, (i) any provision of the Articles of
Incorporation or Bylaws of Seller, (ii) any judgment, order, decree, rule, law
or regulation of any court or governmental authority, or (iii) any provision of
any agreement, instrument or understanding to which Seller is a party or by
which Seller or any of its properties or assets is bound or affected, nor will
such actions give to any other person or entity any interests or rights of any
kind, including rights of termination, acceleration or cancellation, in or with
respect to any of the Purchased Assets. Except as set forth in certain
Contracts, no consent of any third party or any governmental authority is
required to be obtained on the part of Seller to permit the consummation of the
transactions contemplated by this Agreement.
4.4 Disclaimer of Warranty. THE PURCHASED ASSETS ARE SOLD AS
IS, WHERE IS, AND SELLER MAKES NO WARRANTIES RELATING TO THE PURCHASED ASSETS,
EXPRESS OR IMPLIED, AND EXPRESSLY EXCLUDES ANY WARRANTY OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
5. Representations and Warranties of Purchaser. Purchaser hereby
represents and warrants to Seller as follows:
5.1 Organization. Purchaser is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of California.
5.2 Authorization. Purchaser has all requisite power and
authority to execute and deliver this Agreement and, at the time of the Closing,
will have all requisite power and authority to carry out the transactions
contemplated by this Agreement. All necessary corporate action on the part of
Purchaser has been taken to authorize the execution and delivery of the
Agreement. This Agreement has been duly and validly executed by Purchaser and
constitutes a valid and binding agreement of Purchaser, enforceable against
Purchaser in accordance with its terms, except as enforceability may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally or by general equitable principles or the exercise
of judicial discretion in accordance with such principles.
5.3 No Conflicts; Consents. The execution and delivery of this
Agreement by Purchaser do not, and the consummation of the transactions
contemplated hereby and compliance with the provisions hereof will not, conflict
with, result in a breach of, constitute a default (with or without notice or
lapse of time, or both) under or violation of, or result in the creation of any
lien, charge or encumbrance pursuant to, (i) any provision of the Articles of
Incorporation or Bylaws of Purchaser, (ii) any judgment, order. rule, law or
regulation of any court or governmental authority, foreign or domestic, or (iii)
any provision of any agreement, instrument or understanding to which Purchaser
is
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a party or by which Purchaser is bound. Except as set forth in certain
Contracts, no consent of any third party or any governmental authority is
required to be obtained on the part of Purchaser to permit the consummation of
the transactions contemplated by this Agreement.
6. Covenants of Seller.
6.1 Regulatory Approvals. Prior to the Closing, Seller will
execute and file, or join in the execution and filing, of any application or
other document that may be necessary in order to obtain the authorization,
approval or consent of any governmental entity that may be reasonably required,
or that Purchaser may reasonably request, in connection with the consummation of
the transactions contemplated by this Agreement. Seller will use its best
efforts to obtain all such authorizations, approvals and consents. Seller shall
take any action reasonably necessary to assist Purchaser in complying with
Article 6 of the Uniform Commercial Code.
6.2 Satisfaction of Conditions Precedent. Seller will use its
best efforts to satisfy or cause to be satisfied all the conditions precedent to
the Closing hereunder, and to cause the transactions contemplated hereby to be
consummated, and, without limiting the generality of the foregoing, to obtain
all consents and authorizations of third parties (subject to Section 2.5) and to
make all filings with, and give all notices to, third parties which may be
necessary or reasonably required on its part in order to effect the transactions
contemplated hereby.
7. Covenants of Purchaser.
7.1 Regulatory Approvals. Prior to the Closing, Purchaser will
execute and file, or join in the execution and filing, of any application or
other document that may be necessary in order to obtain the authorization,
approval or consent of any governmental entity that may be reasonably required
in connection with the consummation of the transactions contemplated by this
Agreement. Purchaser will use its best efforts to obtain all such
authorizations, approvals and consents.
7.2 Satisfaction of Conditions Precedent. Purchaser will use
its best efforts to satisfy or cause to be satisfied all the conditions
precedent to the Closing hereunder, and to cause the transactions contemplated
hereby to be consummated, and, without limiting the generality of the foregoing,
to obtain all consents and authorizations of third parties and to make all
filings with, and give all notices to, third parties which may be necessary or
reasonably required on its part in order to effect the transaction contemplated
hereby.
7.3 Discharge of Assumed Liabilities. Subject to and upon the
terms and conditions of this Agreement Purchaser shall pay, perform and
discharge, according to their terms, the Assumed Liabilities.
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8. Conditions to Closing.
8.1 Conditions to Each Party's Obligations. The respective
obligations of each party to effect the transactions to be performed by such
party at the Closing are, at the option of such party, subject to the
satisfaction at or prior to the Closing of the following conditions:
(a) No order shall have been entered, and not
vacated, by a court or administrative agency of competent jurisdiction, in any
action or proceeding which enjoins, restrains or prohibits the sale of the
Purchased Assets or consummation of any other transaction contemplated hereby.
(b) All permits, authorizations, approvals and orders
required to be obtained under all applicable statutes, codes, ordinances, rules
and regulations in connection with the transactions contemplated hereby shall
have been obtained and shall be in full force and effect at the Closing Date.
(c) There shall be no litigation pending or
threatened by any regulatory body or private party in which (i) an injunction is
or may be sought against the transactions contemplated hereby, or (ii) relief is
or may be sought against any party hereto as a result of this Agreement and in
which. in the good faith judgment of the Board of Directors of either Purchaser
or Seller (relying on the advice of their respective legal counsel), such
regulatory body or private party has the probability of prevailing and such
relief would have a material adverse affect upon such party.
(d) The parties mutual execution of following
documents: (i) the Convertible Note Purchase Agreement by and between
AccelGraphics. Inc. and Kubota Corporation; and (ii) the Rights Agreement by and
between AccelGraphics, Inc. and Kubota Corporation.
8.2 Conditions to Obligations of Seller. The obligations of
Seller to effect the transactions to be performed by it at the Closing are, at
the option of Seller, subject to the satisfaction at or prior to the Closing of
the following additional conditions:
(a) All of the representations and warranties of
Purchaser set forth in Section 5 hereof shall be true on and as of the Closing
Date with the same force and effect as if they had been made at the Closing,
except for changes contemplated by this Agreement, and Purchaser shall have
delivered to Seller a certificate to such effect dated the Closing Date and
signed by the President or a Vice President of Purchaser.
(b) All of the terms, covenants and conditions of
this Agreement to be complied with and performed by Purchaser at or prior to the
Closing shah have been duly complied with and performed, and Purchaser shall
have delivered to Seller a certificate to such effect dated the Closing Date and
signed by the President or a Vice President of Purchaser.
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8.3 Conditions to Obligations of Purchaser. The obligations of
Purchaser to effect the transactions to be performed by it at the Closing are,
at the option of Purchaser, subject to the satisfaction at or prior to the
Closing of the following additional conditions:
(a) All the representations and warranties of Seller
set forth in Section 4 hereof shah be true on and as of the Closing Date with
the same force and effect as if they had been made at the Closing, except for
changes contemplated by this Agreement, and Seller shah have delivered to
Purchaser a certificate to such effect dated the Closing Date and signed by the
President of Seller.
(b) All of the terms, covenants and conditions of
this Agreement to be complied with and performed by Seller at or prior to the
Closing shall have been, duly complied with and performed, and Seller shall have
delivered to Purchaser a certificate to such effect dated the Closing Date and
signed by the President or a Vice President of Seller.
8.4 The Closing Schedule. Purchaser and Seller shall strictly
adhere to the closing schedule set forth below:
(a) Purchaser will execute and deliver to Seller this
Agreement by December 12, 1994.
(b) Purchaser will have until December 16, 1994 to
inform Seller, in writing of any Purchased Assets that Purchaser will not
purchase under the terms of this Agreement ("Excluded Asset(s)").
(i) If Purchaser has not identified to
Seller by December 16, 1994, any Excluded Asset(s), then the parties will
proceed with the Closing.
(ii) If Purchaser identifies to Seller in
writing, by December 16, 1994, certain Excluded Asset(s), then both Purchaser
and Seller will have until December 22, 1994 to terminate this Agreement in its
entirety, upon either party's determination that the Excluded Asset(s) will
materially impact the viability of the Purchaser's business plan. Upon the close
of business on December 22, 1994, if neither party has elected to terminate the
Agreement, the Excluded Asset(s) will be removed from the applicable exhibits
and the purchase price will be equitably adjusted.
(c) Regardless of whether Purchaser identifies to
Seller on or before December 16, 1994, Excluded Asset(s), Purchaser shall have
until the close of business on December 22, 1994 to terminate this Agreement in
its entirety.
(d) The formal Closing will be completed by December
28, 1994, as evidenced by Purchaser fulfilling its payment obligations as set
forth in Section 2.3.
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9. Post-Closing Matters.
9.1 Accounts Receivable. Purchaser shall promptly remit to
Seller any payments received by Purchaser following the Closing Date with
respect to any accounts receivable of Seller accrued as of the Closing Date.
Seller shall promptly remit to Purchaser any payments received by Seller
following the Closing Date with respect to any accounts receivable of the Seller
Business accruing from and after the Closing Date.
9.2 Incidental Expenses. Purchaser shall promptly remit to
Seller any Trade Payables or Incidental Expenses incurred by Seller on
Purchaser's behalf, subsequent to the Closing Date.
9.3 Further Assurances of Seller. Seller shall, from time to
time, at the request of Purchaser, and without further consideration, execute
and deliver such instruments of transfer, conveyance and assignment in addition
to those delivered pursuant to Section 8 hereof, and take such other actions, as
may be reasonably necessary to assign, transfer, convey and vest in Purchaser,
and to put Purchaser in possession of, the Purchased Assets, including but not
limited to Seller's execution of any patent assignment documentation.
9.4 Further Assurances of Purchaser. Purchaser shall, from
time to time at the request of Seller, and without further consideration,
execute and deliver such instruments of assumption, and take such other action,
as may be reasonably necessary to effectively confirm the assumption by
Purchaser of the Assumed Liabilities.
10. Termination of Agreement.
10.1 Termination by Purchaser. In addition to the termination
provisions set forth in Section 8.4, this Agreement may be terminated by
Purchaser at any time before the Closing upon written notice to Seller,
specifying the basis for such termination, if (i) Seller shall have breached in
any material respect any of its respective covenants or agreements contained in
this Agreement, (ii) any representation or warranty of Seller contained in this
Agreement shall have been materially inaccurate, or (iii) through no fault of
Purchaser, the Closing shall not have occurred on or before December 30, 1994.
10.2 Termination by Seller. In addition to the termination
provisions set forth in Section 8.4, this Agreement may be terminated by Seller
at any time before the Closing upon written notice to Purchaser, specifying the
basis for such termination, if (i) Purchaser shall have breached in any material
respect any of its covenants or agreements contained in this Agreement, (ii) any
representation or warranty of Purchaser contained in this Agreement shall have
been materially inaccurate, or (iii) through no fault of Seller, the Closing
shall not have occurred on or before December 30, 1994.
10.3 Mutual Consent. This Agreement may be terminated at any
time before the Closing, by the mutual written consent of Purchaser and Seller.
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10.4 Effect of Termination. Upon any termination of this
Agreement pursuant to the provisions of Section this Section 10 or Section 8.4,
all parties hereto shall be relieved of all further obligations under this
Agreement.
11. Non-Survival of Representations and Warranties. All of the
representations and warranties contained in this Agreement shall terminate upon
completion of the Closing.
12. General.
12.1 Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of California
(irrespective of its choice of law principles).
12.2 Assignment; Binding upon Successors and Assigns. Neither
of the parties hereto may assign any of its rights or obligations hereunder
without the prior written consent of the other party, which consent shall not be
unreasonably withheld. This Agreement will be binding upon and will inure to the
benefit of the parties hereto and their respective permitted successors and
assigns.
12.3 Severability. If any provision of this Agreement, or the
application thereof, shall for any reason and to any extent be held to be
invalid or unenforceable, the remainder of this Agreement and the application of
such provision to other persons or circumstances shall be interpreted so as best
to reasonably effect the intent of the parties hereto. The parties further agree
to replace such invalid or unenforceable provision of this Agreement with a
valid and enforceable provision which will achieve. to the extent possible, the
economic, business and other purposes of the invalid or unenforceable provision.
12.4 Entire Agreement. This Agreement constitutes the entire
understanding and agreement of the parties hereto with respect to the subject
matter hereof and thereof and supersedes all prior and contemporaneous
agreements or understandings, inducements or conditions, express or implied,
written or oral, between the parties with respect to the subject matter hereof.
12.5 Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall constitute an original and all of
which together shall constitute one and the same instrument.
12.6 Amendment and Waivers. Any term or provision of this
Agreement may be amended, and the observance of any term 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 thereby.
The waiver by a party of any breach hereof for default in payment of any amount
due hereunder or default in the performance hereof shall not be deemed to
constitute a waiver of any other default or any succeeding breach or default.
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12.7 Notices. All notices and other communications hereunder
will be in writing and will be deemed given (i) three (3) days after being
postmarked, if deposited in the U.S. Mail, postage prepaid, (ii) upon receipt if
delivered personally or mailed by registered or certified mail, (iii) the next
business day following dispatch if sent by overnight courier, or (iv) upon
dispatch if transmitted by telecopier or other means of facsimile transmission
and confirmed by a copy delivered in accordance with clause (ii) or (iii), in
each case properly addressed to the other party at its address as set forth
above or at such other address as the party shall have specified by ten (10)
days' prior written notice.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
KUBOTA GRAPHICS CORPORATION
By: /s/ Kubota Graphics Corporation
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Title: CFO
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ACCELGRAPHICS, INC.
By: /s/ Xxxxxxx X. Xxxx
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Title: President & CEO
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AMENDMENT NUMBER ONE TO THE
ASSET AND ACQUISITION AGREEMENT
This Amendment Number One (the "Amendment") to the Asset and Acquisition
Agreement dated December 9, 1994 (the "Agreement") is entered into this
twenty-sixth (26th) day of December, 1994, by and between Kubota Graphics
Corporation ("Kubota Graphics"), located at 0000 Xxxxx Xxxxxx, Xxxxx Xxxxx, XX
00000-0000 and AccelGraphics, Inc. ("AccelGraphics"), located at 0000 Xxxxx
Xxxxxx, Xxxxx Xxxxx, XX 00000-0000.
WHEREAS, the parties have entered into the above referenced Agreement; and
WHEREAS, the parties desire to amend the Agreement;
NOW, THEREFORE, the parties agree as follows:
1. Delete the title of Exhibit Dand insert the following in lieu thereof:
"Sierra 32Z and 48ZI and Associated Imaging Libraries."
2. Amend Exhibit D of the Agreement by adding the following language as the
first paragraph:
"32Z product is defined as a PCI based graphics product based on Kubota
Graphics' announced ActionGraphics 300 product, with additional frame buffer
memory (32 planes total) and imaging support (contrast enhancement and bilinear
interpretation)."
3. Re-state subsection number one in Exhibit G-1, to read as follows:
"Sierra 32Z and 48ZI Technology as defined in Exhibit D and subject to the terms
of the Agreement." The 32Z and 48ZI products also include all Sierra OSF/1
source code and the source code for the drivers, device specific code and
associated driver documentation for the Sierra software.
4. This Amendment and the Agreement as modified by this Amendment Number One,
constitute the entire agreement between the parties concerning the subject
matter of this Agreement.
5. Other Terms and Conditions. Except as amended above, all other terms and
conditions of the Agreement shall remain in full force and effect. In case of
any conflict between the terms of this Amendment Number One and the Agreement,
the terms in this Amendment Number One shall govern.
KUBOTA GRAPHICS CORPORATION ACCELGRAPHICS, INC.
By: /s/ XX Xxxxxx By: /s/ Xxxxxxx X. Xxxx
------------------------ ------------------------
Name: XX Xxxxxx Name: Xxxxxxx X. Xxxx
------------------------ ------------------------
Title: CFO Title: President & CEO
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Date: 12/26/94 Date: 12/26/94
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