ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT (this "Agreement"), dated January 30, 2003 (the
"Effective Date"), by and between Symbiat, Inc., a Delaware corporation, (the
"Seller") and Altura XL LLC, a Georgia limited liability company (the
"Purchaser").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Seller desires to sell and transfer to the Purchaser, and the
Purchaser desires to purchase from the Seller, all right, title and interest in
and to the Purchased Assets (as hereinafter defined) all as more specifically
provided herein;
NOW, THEREFORE, in consideration of the mutual covenants and undertakings
contained herein, and subject to and on the terms and conditions set forth
herein, the Seller and the Purchaser, intending to be legally bound, agree as
follows:
ARTICLE I
Certain Definitions
As used in this Agreement, the following terms have the respective meanings
set forth below.
"Affiliate" means, with respect to any Person, any other Person who
directly or indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with, such Person. The term "control"
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise, and the terms
"controlled" and "controlling" have meanings correlative thereto.
"Governmental Authority" means any national, federal, state, provincial,
county, municipal or local government, foreign or domestic, or the government of
any political subdivision of any of the foregoing, or any entity, authority,
agency, ministry or other similar body exercising executive, legislative,
judicial, regulatory or administrative authority or functions of or pertaining
to government, including any authority or other quasi-governmental entity
established to perform any of such functions.
"Gross Revenues" means, for the applicable period, all revenues actually
collected from sales of the RAS2000 Product Line, as applicable, less any
refunds, rebates, discounts or credits of a similar nature, given, paid or
returned in the course of obtaining such revenues or component thereof.
"Intellectual Property" means any and all: (a) inventions and discoveries
(including without limitation, any and all processes, methods, machines,
manufactures, compositions of matter), whether or not patentable; (b) works of
authorship, expressions, compilations, data collections and databases (including
without limitation any and all specifications, diagrams, recipes, formulas,
computer programs, software, firmware, documentation and data), whether or not
copyrightable; (c) trade secrets, ideas, know-how, and confidential or
proprietary information; (d) patents, utility models, copyrights, trademarks,
service marks, moral rights and other government-issued or legally-cognizable
rights and/or indicia of ownership with respect to any of the foregoing; (e)
other intellectual property, industrial
property or proprietary rights, however designated, that are similar or
analogous to, or subsumed by or required for the exercise of, any of the
foregoing rights, whether arising by operation of law, contract, license or
otherwise; (f) registrations, applications, renewals, extensions, continuations,
certificates and other associated documentation, now or hereafter in force with
respect to any of the foregoing; and (g) claims, demands and causes of action of
any kind with respect to, and any other rights relating to the enforcement of,
any of the foregoing, including without limitation any past, present or future
infringement, misappropriation or other violation of any of them.
"Letter of Intent" means that certain letter by and between the Seller and
the Purchaser dated December 27, 2002.
"Object Code" means the compiled and assembled, machine-readable form of
the code.
"Person" means an individual, partnership, corporation, joint stock
company, limited liability company, limited liability partnership,
unincorporated organization or association, trust or joint venture, or a
governmental agency or political subdivision thereof.
"Purchased Assets" means the all assets pertaining to the RAS2000 products,
including, without limitation (i) the RAS2000 Product Line as set forth on
Exhibit A; (ii) the Purchased Units as set forth on Exhibit B; (iii) the
Purchased Equipment as set forth on Exhibit C; (iv) the Purchased Documents as
set forth on Exhibit D; (v) the RAS2000 Technology, the Intellectual Property,
the Object Code and the Source Code as collectively set forth on Exhibit E; and
(vi) and all new and used units, components, cables, sub-assemblies and
packaging material pertaining to the RAS2000 Product Line after delivery of the
Purchased Units. The Seller will retain certain components for use in warranty
repairs and certain RAS2000 units currently in use as set forth on Exhibit F.
"Purchased Documents" means the documents and records pertaining to the
purchase of components, production and sales of the RAS2000 Product Line listed
on Exhibit D.
"Purchased Equipment" means the assets listed on Exhibit C.
"Purchased Units" means 300 units of the RAS2000 Product Line that are
included within the definition of Purchased Assets and listed on Exhibit B with
delivery dates and product configurations set forth therein.
"RAS2000 Product Line" means the products listed on Exhibit A.
"RAS2000 Technology" means any and all Intellectual Property relating to
the RAS2000 Product Line including without limitation all Intellectual Property
related to the creation, design, development, manufacture or use of any of the
RAS2000 Product Line.
"Source Code" means the human-readable form of the code and related system
documentation including the original programming statements with comments, and
any procedural code such as job control language, plus any associated
interfaces, definition files or scripts used to control compilation and
installation of executable code. The Source Code shall also include, without
limitation, (i) file layouts, data structure and schematics, (ii) names and last
known addresses of technical personnel who developed the code and (iii) a list
of third party software and tools if applicable used to create and maintain the
code.
"Titan Product Line" means the RAS4, RAS8, RCM4, RCM8, RCM24 and RCM48
products.
ARTICLE II
Purchase and Sale of Assets; Additional Covenants
Section 2.1. Purchase and Sale of Assets. Upon the terms and subject to the
conditions of this Agreement and on the basis of the representations, warranties
and agreements contained herein, the Seller shall sell, assign, transfer, convey
and deliver to the Purchaser all of the Seller's right, title and interest in
and to the Purchased Assets and the Purchaser shall purchase such Purchased
Assets from the Seller. THE PURCHASER IS NOT ASSUMING, NOR SHALL IT IN ANY
MANNER BECOME LIABLE FOR, ANY LIABILITIES OR OBLIGATIONS OF ANY KIND OR NATURE
WHATSOEVER OF THE SELLER AND ITS AFFILIATES, WHETHER KNOWN OR UNKNOWN, MATURE,
CONTINGENT OR OTHERWISE, ARISING OUT OF, RELATED TO OR INCURRED IN CONNECTION
WITH, ACTIONS OR CIRCUMSTANCES OCCURRING OR EXISTING PRIOR TO THE EFFECTIVE
DATE.
Section 2.2. Purchase Price. (a) The purchase price (the "Purchase Price")
to be paid by the Purchaser for the Purchased Assets shall equal $102,500 and
00/XX Dollars ($102,500.00).
(b) The Purchase Price shall be paid by Purchaser to Seller as follows:
(i) Seller acknowledges receipt of the sum of Twenty Thousand
Dollars ($20,000) which has been paid by Purchaser related to
the delivery of Purchased Units 1 - 50;
(ii) $15,000.00 upon execution of this Agreement and delivery of
Purchased Units 51 - 100;
(iii) $15,000.00 upon delivery of Purchased Units 101 - 150;
(iv) $12,500.00 upon delivery of Purchased Units 151 - 200;
(v) $15,000.00 upon delivery of Purchased Units 201 - 250; and
(vi) $25,000.00 due thirty (30) days after delivery of Purchased
Units 251 - 300.
Section 2.3. Additional Payment. In addition to the payment of the Purchase
Price pursuant to Section 2.2, commencing on the Effective Date and continuing
for one (1) year, the Purchaser shall pay the Seller a royalty (each such
payment, an "Additional Payment"), if any, according to the following
calculation: (i) three percent (3%) of Gross Revenues of the RAS2000 Product
Line. Royalties shall be paid quarterly within fifteen (15) days of the end of
the each calendar quarter. Notwithstanding any of the provisions contained in
this Section 2.3, the Seller acknowledges that the Purchaser, in its sole
discretion, may at any time discontinue the manufacturing and sales of the
RAS2000 Product Line, and in such an event, the Purchaser shall have no further
obligation to make any payments pursuant to this Section 2.3.
Section 2.4. Allocation. The allocation of the Purchase Price among the
Purchased Assets for all purposes (including financial accounting and tax
purposes) will be $2,500 for the Purchased Equipment
and the remainder of the Purchase Price allocated to inventory, including the
Purchased Units and the remaining components, cables, sub-assemblies and
packaging materials.
ARTICLE III
Representations and Warranties of the Seller
The Seller represents and warrants to the Purchaser as follows:
Section 3.1. Organization and Qualification of the Seller. The Seller is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware, with full power and authority, corporate and other, to
enter into this Agreement.
Section 3.2. Authorization. The Seller has full power and authority,
corporate and other, to execute and deliver this Agreement, the instruments of
transfer and to perform its obligations hereunder and thereunder, all of which
have been duly authorized by all requisite corporate action. Each of this
Agreement and such instruments of transfer has been or, at the time of delivery
will be, duly authorized, executed and delivered by the Seller and constitutes
or, at the time of delivery will constitute, a valid and binding agreement of
the Seller, enforceable against the Seller in accordance with its terms.
Section 3.3. Non-contravention. In relevant part, neither the execution and
delivery of this Agreement and the instruments of transfer nor the performance
by the Seller of its obligations hereunder and thereunder will (i) contravene
any provision contained in the Seller's Certificate of Incorporation or by-laws,
(ii) violate or result in a breach (with or without the lapse of time, the
giving of notice or both) of or constitute a default under (A) any contract,
agreement, commitment, indenture, mortgage, lease, pledge, note, license, permit
or other instrument or obligation or (B) any judgment, order, decree, law, rule
or regulation or other restriction of any Governmental Authority, in each case
to which the Seller is a party or by which it is bound or to which any of its
assets or properties are subject or (iii) result in the creation or imposition
of any lien, claim, charge, encumbrance, equity, restriction or right on the
Purchased Assets.
Section 3.4. No Consents. Except for consents required in connection with
the Purchaser's acquisition of the Purchased Assets, no notice to, filing with,
or authorization, registration, consent or approval of any Governmental
Authority or other Person is necessary for the execution, delivery or
performance of this Agreement and the instruments of transfer or the
consummation of the transactions contemplated hereby or thereby by the Seller.
Section 3.5. The Purchased Assets. The Seller has good and marketable title
to all of the Purchased Assets free and clear of any and all liens, claims,
charges, mortgages, security interests, equity or other encumbrances
(collectively, the "Encumbrances"). The Seller has complete and unrestricted
power and the unqualified right to sell, convey, assign, transfer and deliver
the Purchased Assets to Purchaser and effectively to vest in Purchaser good,
valid and marketable title to the Purchased Assets. There are no existing
agreements, commitments or rights with, of or to any person to acquire any of
the Purchased Assets. No consents are necessary to consummate such conveyances.
The Purchased Assets are in good operating condition and are in a state of good
maintenance and repair, and there does not exist any condition which interferes
or which may interfere with the economic value or use thereof. No third party
(including any Affiliate) or any past or present employee owns or has any
interest by lease, license or otherwise in any of the Purchased Assets. The
documents
of transfer executed and delivered by the Seller will be sufficient to convey
good and marketable title to the Purchased Assets to the Purchaser, free and
clear of any Encumbrances. The Purchased Assets constitute all of the assets
used in the operation of the RAS2000 Product Line and necessary to use,
manufacture and sell the RAS2000 Product Line.
Section 3.6 Proprietary Rights. (a) The Purchased Assets were developed by
the Seller and its employees. Any trade secret rights with respect to the
Purchased Assets have been maintained with the appropriate secrecy safeguards,
and are not generally known.
(b) No claim by any third party contesting the validity, enforceability,
use or ownership of the Purchased Assets has been made, is currently pending or
is threatened. The Seller has not received any notice of, nor is it aware of any
fact which indicates a likelihood of, any infringement or misappropriation by,
or conflict with, any third party with respect to the intellectual property
rights of the Purchased Assets. The Seller has not infringed, misappropriated or
otherwise conflicted with any rights of any third parties, nor is it aware of
any infringement, misappropriation or conflict which will occur as a result of
the continued operation of the Purchased Assets. The Seller has not engaged in
any conduct or omitted to perform any necessary act, the result of which could
invalidate any of the intellectual property rights of the Purchased Assets.
(c) The Seller has not granted any licenses or other similar rights with
respect to the Purchased Assets.
(d) The Seller agrees to not discard, destroy or otherwise make unavailable
any records, documents, computer files, databases, specifications, programs,
drawings or diagrams relating to its connectivity products business segment for
a period of one year from the Effective Date.
Section 3.7. Warranty of Purchased Units. The Purchased Units shall perform
in accordance with the documentation provided to the Purchaser and described on
the product warranty card, a copy of which is attached hereto as Exhibit I.
Seller shall assume warranty obligations for the Purchased Units delivered by
the Seller pursuant to this Agreement and for any RAS2000 units (including RCM
units) previously sold by the Seller.
Section 3.8. Decrees. No judgment, order, decree, ruling, or writ of any
court or any governmental department, commission board, bureau, agency or
instrumentality has been issued or entered with respect to or affecting the
Purchased Assets.
Section 3.9. Compliance with Laws. The Seller is in compliance with all
laws, rules, regulations, orders, writs or decrees of any jurisdiction, court or
any governmental department, commission, board, bureau, agency or
instrumentality the noncompliance with which would have a material adverse
effect upon the value or use of the Purchased Assets, and the Seller has not
been notified of any alleged failure to so comply.
Section 3.10. Litigation. There is no action, suit, proceeding, claim or
investigation (whether or not purportedly on behalf of the Seller) to which the
Seller is a party and to which any of the Purchased Assets is or may be subject,
pending or, threatened before or by any federal, state, municipal or other
governmental department, court, commission, board, bureau, agency or
instrumentality.
Section 3.11. Bulk Sales. The transfer of the Purchased Assets pursuant to
this Agreement is not subject to the provisions of the Uniform Commercial Code -
Bulk Transfers, as adopted by the State of Georgia or any other bulk sales law.
Section 3.12. Disclosure. No representation or warranty made by the Seller
in this Agreement, any Exhibit or any certificate delivered, or to be delivered,
by or on behalf of the Seller pursuant hereto contains or will contain any
untrue statement of a material fact or omits or will omit to state a material
fact necessary to make the statements contained herein or therein not
misleading. There is no fact which the Seller has not disclosed to the Purchaser
in writing which the Seller presently believes has or may have a material
adverse effect on the Purchased Assets or on the ability of the Seller to
perform its obligations under this Agreement and the instruments of transfer.
ARTICLE IV
Representations and Warranties of the Purchaser
The Purchaser represents and warrants to the Seller as follows:
Section 4.1. Organization. The Purchaser is a limited liability company
duly organized, validly existing and in good standing under the laws of the
State of Georgia and has full power and authority, corporate and other, to own
or lease its property and assets and to carry on its business as presently
conducted.
Section 4.2. Authorization. The Purchaser has full power and authority,
corporate and other, to execute and deliver this Agreement and the instruments
of transfer and to perform its obligations hereunder and thereunder, all of
which have been duly authorized by all requisite corporate action. Each of this
Agreement and the instruments of transfer has been or, at the time of delivery
will be, duly authorized, executed and delivered by the Purchaser and
constitutes or, at the time of delivery will constitute, a valid and binding
agreement of the Purchaser, enforceable against the Purchaser in accordance with
its terms.
Section 4.3. Non-contravention. The Purchaser is not subject to any
provision of its Certificate of Incorporation or by-laws or any agreement,
instrument, law, rule, regulation, order, decree or judgment of any Governmental
Authority or other restriction that would prevent the consummation of the
transactions contemplated by this Agreement and the instruments of transfer.
Section 4.4. No Consents. Except for consents required in connection with
the Purchaser's acquisition of the Purchased Assets, no notice to, filing with,
or authorization, registration, consent or approval of any Governmental
Authority or other Person is necessary for the execution, delivery or
performance of this Agreement and instruments of transfer or the consummation of
the transactions contemplated hereby and thereby by the Purchaser.
ARTICLE V
Covenants and Agreements
Section 5.1. Closing Documents. The Seller shall, prior to or on the
Effective Date, execute and deliver, or cause to be executed and delivered to
the Purchaser, the documents or instruments described in Section 6.2. The
Purchaser shall perform the obligations described in Section 6.3.
Section 5.2. Transfer and Property Taxes. The Seller shall pay any
transfer, sales, purchase, use or similar tax under the laws of any Governmental
Authority arising out of or resulting from the purchase of the Purchased Assets.
Section 5.3. Non-Competition. For a period of five years after the
Effective Date, the Seller agrees that it will not, directly or indirectly,
engage or invest in, own, manage, operate, license, finance, control, or
participate in the ownership, management, operation, financing, or control of,
be associated with, or in any manner connected with any Person involved in the
development, marketing and sales of any "competitive product" except as an
authorized reseller of the Purchaser pursuant to a written agreement. For
purposes of this Agreement, a "competitive product" shall mean any product that
provides features to perform as a remote access server, communications server,
terminal server or print server, and any product that provides functions for
remote console management or network management.
The Seller acknowledges that the restrictions contained in this Section 5.3
are reasonable and necessary to protect the legitimate interests of the
Purchaser and that any breach by the Seller of any provision hereof will result
in irreparable injury to the Purchaser. The Seller acknowledges that, in
addition to all remedies available at law, the Purchaser shall be entitled to
equitable relief, including injunctive relief, and an equitable accounting of
all earnings, profits or other benefits arising from such breach and shall be
entitled to receive such other damages, direct or consequential, as may be
appropriate. Such equitable relief for earnings and profits shall not exceed
$100,000 in the first and second year after the Effective Date; $90,000 in the
third year after the Effective Date; $80,000 in the fourth year after the
Effective Date and $70,000 in the fifth year after the Effective Date. The
Purchaser shall not be required to post any bond or other security in connection
with any proceeding to enforce this Section 5.3.
The Seller may, however:
(a) sell up to 200 units from its IntelliServer Slimline product line
from components owned by the Seller on the Effective Date;
(b) license or sell the technology for the Titan Product Line,
however, the Purchaser has a right of first refusal to accept and enter
into any transaction with the Seller that the Seller has agreed to in an
arms length transaction with an unrelated third party; and
(c) resell an unrelated third party's hardware for purposes of
offering to its service and support customers a remote console management
or network management solution.
Section 5.4. Non-Solicitation. Each party will not, directly or indirectly,
either for itself or any other entity, (i) induce or attempt to induce any
employee of the other party to leave the employ of the party, or (ii) in any way
interfere with the relationship between the other party and any employee of the
other party.
Section 5.5. Best Efforts; Further Assurances. Subject to the terms and
conditions herein provided, each of the parties hereto shall use its reasonable
best efforts to take, or cause to be taken, all action, and to do, or cause to
be done, all things reasonably necessary, proper or advisable under applicable
laws and regulations to consummate and make effective the transactions
contemplated by this Agreement. In the event that at any time after the
Effective Date any further action is necessary to carry out the purposes of this
Agreement, the Seller or the proper directors or officers of the Seller or the
Purchaser, as the case may be, shall take all such action without any further
consideration therefore. Without limiting the generality of the foregoing, the
Seller shall cooperate with the Purchaser and secure the cooperation of its
employees, at the cost of the Purchaser, if the Purchaser shall seek to apply
for any patent or copyright, including, without limitation, the assembly of all
records or materials necessary or helpful in the preparation of applications for
any patent or copyright application or registration.
Section 5.6. Purchased Unit Assembly. The parties acknowledge that all 300
Purchased Units are not yet assembled and that the Seller agrees to complete the
assembly of all 300 Purchased Units without any additional cost or charge to
Buyer beyond the amount set forth herein as the Purchase Price.
Section 5.7. Product Support. The Seller shall provide hardware
warranty support on all of the Purchased Units and for any products in the
RAS2000 Product Line previously sold by the Seller. Purchaser will provide the
ninety (90) day software and firmware warranty support and configuration support
for the Purchased Units.
Section 5.8 Seller's Customers. After the Effective Date, the Seller shall
promptly notify in writing its customers that the Purchaser owns the rights to
the Purchased Assets. The Purchaser shall have all rights to contract with the
customers for any further customization or development of the Purchased Assets.
Section 5.9. Internet Links. Each party agrees, at no cost, to provide an
Internet link to the other party's website.
ARTICLE VI
The Closing; Deliveries by the Parties
Section 6.1. The Closing. The signing of the documents relating to the
transactions contemplated by this Agreement (the "Closing") is taking place at
the offices of the Seller or such other place as the parties may designate,
commencing on January 30, 2003 (the "Closing Date"). The respective obligations
of each party to consummate the transactions contemplated by this Agreement
shall be subject to the fulfillment at or prior to the Closing of the
condition[s] that no Governmental Authority of competent jurisdiction shall have
(i) enacted, issued, promulgated, enforced or entered any statute, rule,
regulation, judgment, decree, injunction or other order which is in effect; or
(ii) commenced or threatened any action or proceeding, which in either case
would prohibit consummation of the transactions contemplated by this Agreement.
Section 6.2. Deliveries by Seller. Prior to or at the Closing, the Seller
shall have delivered to the Purchaser such items and all instruments of
assignment, transfer and conveyance identified herein and such other closing
documents as shall be requested by the Purchaser in form and substance
acceptable to the Purchaser's counsel, including the following:
(a) such instruments of sale, transfer, assignment, conveyance and
delivery, in form and substance reasonably satisfactory to counsel for the
Purchaser and the Xxxx of Sale set forth as Exhibit J, as are required in
order to transfer to the Purchaser good and marketable title to the
Purchased Assets, free and clear of all Encumbrances except as provided
herein;
(b) a certificate of the Secretary or Assistant Secretary of the
Seller, dated the Effective Date, (a) as to the incumbency of any officer
of the Seller executing this Agreement and the instruments of transfer or
any document related thereto, (b) with a certified copy of the certificate
of incorporation and bylaws, resolutions of the board of directors
authorizing the transactions contemplated by this agreement and a good
standing certificate and (c) covering such other matters as the Purchaser
may reasonably request;
(c) not withstanding the foregoing, any document required of Seller
hereunder may be redacted in relevant part, for confidentiality purposes.
Section 6.3. Delivery by Purchaser. Prior to or at the Closing the
Purchaser shall deliver the sum of Fifteen Thousand Dollars ($15,000.00) to the
Seller.
ARTICLE VII
[Reserved.]
ARTICLE VIII
Survival of Representations and Warranties; Indemnification
Section 8.1. Survival of Representations and Warranties. Except as set
forth below, the representations and warranties provided for in this Agreement
shall survive the Effective Date for the benefit of the parties hereto and their
successors and assigns.
Section 8.2. Indemnification. (a) The Seller agrees to and does hereby
indemnify and agrees to defend and hold harmless the Purchaser, its Affiliates,
officers, directors, employees, agents and representatives, and any Person
claiming by or through any of them, against and in respect of any and all
claims, costs, expenses, damages, liabilities, losses or deficiencies
(including, without limitation, reasonable counsel's and expert's fees and other
costs and expenses incident to any suit, action or proceeding) (the "Damages")
arising out of, resulting from or incurred in connection with (i) the ownership,
management or use of the Purchased Assets prior to the Closing, (ii) the conduct
of the business of the Seller prior to the Closing, (iii) any breach of any
representation or warranty of the Seller or failure to perform any covenant of
the Seller contained in this Agreement, or (iv) any liabilities or obligations
of or claims against the Seller (whether absolute, accrued, contingent or
otherwise and whether a contractual, tax or other type of liability, obligation
or claim and specifically including but not limited to including, without
limitation, any product liability or warranty claims with respect to the
Purchased Units).
(b) The Purchaser agrees to and does hereby indemnify and agrees to defend
and hold harmless the Seller, its Affiliates, officers, directors, employees,
agents and representatives, and any Person claiming by or through any of them
and its respective successors and assigns, from and against all actions, losses,
claims, liabilities, litigation causes of action, damages, costs and expenses of
every kind
and character (including reasonable fees of attorneys) resulting from or
relating to any breach of any representation or warranty of Purchaser or failure
to perform any covenant of Purchaser contained in this Agreement.
(c) Any Person providing indemnification pursuant to the provisions of this
Section 8.2 is hereinafter referred to as an "Indemnifying Party" and any Person
entitled to be indemnified pursuant to the provisions of this Section 8.2 is
hereinafter referred to as an "Indemnified Party."
Section 8.3. Procedures for Claims. In the case of any claim for
indemnification arising from a claim of a third party, an Indemnified Party
shall give prompt written notice, in no event more than twenty (20) days
following such Indemnified Party's receipt of such claim or demand, to the
Indemnifying Party of any claim or demand which such Indemnified Party has
knowledge and as to which it may request indemnification hereunder. The
Indemnifying Party shall have the right to defend and to direct the defense
against any such claim or demand, in its name or in the name of the Indemnified
Party, as the case may be, at the expense of the Indemnifying Party, and with
counsel selected by the Indemnifying Party unless (i) such claim or demand seeks
an order, injunction or other equitable relief against the Indemnified Party, or
(ii) the Indemnified Party shall have reasonably concluded that (x) there is a
conflict of interest between the Indemnified Party and the Indemnifying Party in
the conduct of the defense of such claim or demand or (y) the Indemnified Party
has one or more defenses not available to the Indemnifying Party.
Notwithstanding anything in this Agreement to the contrary, the Indemnified
Party shall, at the expense of the Indemnifying Party, cooperate with the
Indemnifying Party, and keep the Indemnifying Party fully informed, in the
defense of such claim or demand. The Indemnified Party shall have the right to
participate in the defense of any claim or demand with counsel employed at its
own expense; provided, however, that, in the case of any claim or demand
described in clause (i) or (ii) of the second preceding sentence or as to which
the Indemnifying Party shall not in fact have employed counsel to assume the
defense of such claim or demand, the reasonable fees and disbursements of such
counsel shall be at the expense of the Indemnifying Party. The Indemnifying
Party shall have no indemnification obligations with respect to any such claim
or demand which shall be settled by the Indemnified Party without the prior
written consent of the Indemnifying Party, which consent shall not be
unreasonably withheld, delayed or conditioned.
Section 8.4 Set Off. In addition to any other equitable or legal remedies,
the Purchaser may set off against any payment due hereunder, including, without
limitation Damages for which the Seller may be responsible pursuant to this
Agreement.
ARTICLE IX
Miscellaneous
Section 9.1. Notices. All notices or other communications required or
permitted hereunder shall be in writing and shall be delivered personally, or
sent by certified, registered or express air mail, postage prepaid, and shall be
deemed given when so delivered personally, or if mailed, five days after the
date of mailing, as follows:
If to the Purchaser: Altura XL LLC
000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
Telephone: (000-000-0000)
Attention: Xxxxx X. Xxxxxx
If to the Seller: Symbiat, Inc.
0000 Xxxxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Attention: Xxxx X. Xxxxx, President
Section 9.2. Expenses. Regardless of whether the transactions provided for
in this Agreement are consummated each party hereto shall pay its own expenses
incident to this Agreement and the transactions contemplated herein.
Section 9.3 Employees. The Purchaser will not be required to hire any
employees of the Seller.
Section 9.4 Obligations to Individual Members of the Purchasers. Upon
Seller's delivery of all Purchased Units pursuant to the times set forth on
Exhibit B hereto and the delivery of the remainder of the Purchased Assets, the
amounts due to the individual members of the Purchaser, as outlined in Exhibit
G, will be deemed settled and fully satisfied. If the Seller fails to deliver
all Purchased Units as provided in Exhibit B and to deliver the remainder of the
Purchased Assets, such amounts set forth on Exhibit G shall be reduced by the
fair value of the Purchased Assets not delivered as provided in this Agreement.
If any Purchased Units are not delivered in accordance with Exhibit B, the fair
value of non-delivery shall be deemed to be One Hundred and Fifty ($150.00)
Dollars per unit. Any reduction in the amounts set forth on Exhibit G shall not
exceed the total of the amounts set forth. Any reduction in amounts set forth in
Exhibit G shall not reduce the validity, force or effect of any other rights of
either the Purchaser or Seller in this Agreement. The total of any reduction in
the amounts set forth on Exhibit G may be set off against amounts due the Seller
by the Purchaser pursuant to this Agreement. If no amounts are due by the
Purchaser to the Seller to effect a set off, such amount shall be paid by the
Seller to the Purchaser no later than March 31, 2003.
Section 9.5 Inquiries and Orders for RAS2000 Product Line. Seller agrees to
notify and forward promptly to Purchaser any and all inquiries or orders
received pertaining to the RAS2000 Product Line.
Section 9.6 Training. Seller will provide training to the Purchaser in the
assembly and testing of the RAS2000 Product Line. Such training will be
scheduled at a mutually convenient time no later than 15 business days after the
Effective Date.
Section 9.7 Email. Seller will keep in service and provide access for the
Purchaser to the following email addresses for a period of one (1) year from the
Effective Date.
xxxxxxxx@xxxxxxxxx.xxx
xxxxxxxx@xxxxxxx.xxx
xxxxxx@xxxxxxxxx.xxx
xxxxxx@xxxxxxx.xxx
Section 9.8. Governing Law; Consent to Jurisdiction. This Agreement shall
be governed by, and construed in accordance with, the internal laws of the State
of Georgia, without reference to the choice of law principles thereof. Each of
the parties hereto irrevocably submits to the non-exclusive jurisdiction of the
courts of the State of Georgia and the United States District Court for the
Northern
District of Georgia for the purpose of any suit, action, proceeding or judgment
relating to or arising out of this Agreement and the transactions contemplated
hereby. Service of process in connection with any such suit, action or
proceeding may be served on each party hereto anywhere in the world by the same
methods as are specified for the giving of notices under this Agreement. Each of
the parties hereto irrevocably consents to the jurisdiction of any such court in
any such suit, action or proceeding and to the laying of venue in such court.
Each party hereto irrevocably waives any objection to the laying of venue of any
such suit, action or proceeding brought in such courts and irrevocably waives
any claim that any such suit, action or proceeding brought in any such court has
been brought in an inconvenient forum.
Section 9.9. Assignment; Successors and Assigns; No Third Party Rights.
Except as otherwise provided herein, this Agreement may not be assigned by
operation of law or otherwise, and any attempted assignment shall be null and
void. The Purchaser may assign all of its rights under this Agreement to any
Affiliate; provided such Affiliate assumes all of the obligations of the
Purchaser hereunder. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors, permitted assigns
and legal representatives. This Agreement shall be for the sole benefit of the
parties to this Agreement and their respective successors, assigns and legal
representatives and is not intended, nor shall be construed, to give any Person,
other than the parties hereto and their respective successors, assigns and legal
representatives, any legal or equitable right, remedy or claim hereunder.
Section 9.10. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original agreement, but all of
which together shall constitute one and the same instrument.
Section 9.11. Titles and Headings. The headings and table of contents in
this Agreement are for reference purposes only, and shall not in any way affect
the meaning or interpretation of this Agreement.
Section 9.12. Entire Agreement. This Agreement, including Exhibits attached
thereto, constitutes the entire agreement among the parties with respect to the
matters covered hereby and supersedes all previous written, oral or implied
understandings (including, without limitation, the Letter of Intent) among them
with respect to such matters.
Section 9.13. Amendment and Modification. This Agreement may only be
amended or modified in writing signed by the party against whom enforcement of
such amendment or modification is sought.
Section 9.14. Public Announcement. Except as may be required by law,
neither the Seller, on the one hand, or the Purchaser, on the other hand, shall
issue any press release or otherwise publicly disclose this Agreement or the
transactions contemplated hereby or any dealings between or among the parties in
connection with the subject matter hereof without the prior approval of the
other. In the event that any such press release or other public disclosure shall
be required, the party required to issue such release or other disclosure shall
consult in good faith with the other party hereto with respect to the form and
substance of such release or other disclosure prior to the public dissemination
thereof. Neither party shall disclose the Purchase Price, except as may be
required by applicable laws or regulations or the rules of any securities
exchange or association binding on the Purchaser or the Seller, as the case may
be.
Section 9.15. No Finders' Fees. Neither the Seller nor Purchaser nor any
party acting on their behalf has employed any broker or finder or incurred any
liability for any brokerage fees or commissions or any finder's fees in
connection with the negotiations relative to this Agreement or the
consummation of the transactions contemplated hereby.
Section 9.16. Waiver. Any of the terms or conditions of this Agreement may
be waived at any time by the party or parties entitled to the benefit thereof,
but only by a writing signed by the party or parties waiving such terms or
conditions.
Section 9.17. Severability. The invalidity of any portion hereof shall not
affect the validity, force or effect of the remaining portions hereof. If it is
ever held that any restriction hereunder is too broad to permit enforcement of
such restriction to its fullest extent, such restriction shall be enforced to
the maximum extent permitted by law.
Section 9.18. No Strict Construction. Each of the Purchaser and the Seller
acknowledge that this Agreement has been prepared jointly by the parties hereto,
and shall not be strictly construed against either party.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
SYMBIAT, INC.
By: /s/ Xxxx X. Xxxxx
-----------------
Name: Xxxx X. Xxxxx
Title: President
ALTURA XL LLC
By: /s/ Xxxxx X. Xxxxxx
-------------------
Name: Xxxxx X. Xxxxxx
Title: President
By: /s/ Xxxxxxx X. Xxxxxx
---------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President -
Sales and Marketing
EXHIBIT A
---------
RAS2000 Product Line
RAS2000 This nomenclature defines all 16 to 64-port RJ45
expandable rack mount communications servers
RAS2000/16 16-port rack mount communications server
RAS2000/16DC 16-port rack mount communications server
with 48V DC power supply
RAS2000/16LW 16-port rack mount communications server
with Lowes kernel
RAS2000/32 32-port rack mount communications server
RAS2000/32DC 32-port rack mount communications server
with 48V DC power supply
RAS2000/48 48-port rack mount communications server
RAS2000/48DC 48-port rack mount communications server
with 48V DC power supply
RAS2000/48LW 48-port rack mount communications server
with Lowes kernel
RAS2000/64 64-port rack mount communications server
RAS2000/64DC 64-port rack mount communications server
with 48V DC power supply
XXX-16RJ-232 16-port expansion serial cards RS-232
RAS2000 ENGINE RAS2000 engine card
RAS2000RCM This nomenclature defines all 16 to 64-port RJ45
expandable rack mount RCM communications servers which
support sun-break issues
RAS2000/16RCM 16-port rack mount RCM communications server
RAS2000/16RCMDC 16-port rack mount RCM communications server
with 48V DC power supply
RAS2000/32RCM 32-port rack mount RCM communications server
RAS2000/32RCMDC 32-port rack mount RCM communications server
with 48V DC power supply
RAS2000/48RCM 48-port rack mount RCM communications server
RAS2000/48RCMDC 48-port rack mount RCM communications server
with 48V DC power supply
RAS2000/64RCM 64-port rack mount RCM communications server
RAS2000/64RCMDC 64-port rack mount RCM communications server
with 48V DC power supply
XXX-RCM 16-port expansion RCM serial cards RS-232
EXHIBIT B
---------
Purchased Units
Delivery date Units Product Quantity
------------- ----- ------- -------
Delivered 1-25 RAS2000/16 10
January 10, 2003 RAS2000/32 3
RAS2000/32RCM 2
RAS2000/48 5
RAS2000/64 5
XXX-16RJ-232 25
Delivered 26-50 RAS2000/16 13
January 15, 2003 RAS2000/16RCM 2
RAS2000/32 2
RAS2000/48 1
RAS2000/64 1
RAS2000/64RCM 6
XXX-16RJ-232 20
Delivered 51-74 RAS2000/16 24
January 22, 2003 XXX-16RJ-232 24
January 30, 2003 75-100 RAS2000/16 6
RAS2000/32 20
January 31, 0000 000-000 RAS2000/16 30
RAS2000/32 20
XXX-16RJ-232 16
February 10, 0000 000-000 RAS2000/16 30
RAS2000/32 20
XXX- 16RJ-232 20
February 19, 0000 000-000 RAS2000/16 30
RAS2000/32 20
XXX-16RJ-232 20
February 28, 0000 000-000 RAS2000/16 30
RAS2000/32 20
XXX-16RJ-232 20
Seller agrees to complete assembly of all of the above-specified Purchased Units
pursuant to Section 5.6 of the Agreement.
EXHIBIT C
---------
Purchased Equipment
RAS/RCM test computer
Desoldering station
Microscope
Oscilloscope
Volt / ohm meter
Halo lamp
Workbenches (3)
Burn-in racks (2)
Pallet xxxx
Torch settable drivers
Tool box and hand tools
Storage racks located at Seller's former Alpharetta, GA offices
EXHIBIT D
---------
Purchased Documents
For each of the products in the RAS2000 Product Line:
Sales history
Customer information
Costed bills of material
Purchasing history
Vendor information
Production process
Other:
Inventory quantities (Included on Exhibit F)
EXHIBIT E
---------
RAS 2000 Technology
-------------------
The technology that is included in the term RAS2000 has four aspects. The first
is a proprietary hardware design for a device that supports the connection of up
to 64 serial I/O devices to a network that support 10 base T Ethernet
connections. In simplistic terms that are defined in more detail in Engineering
documents included in another exhibit, the hardware consist of a chassis with a
3U form factor, an engine card that contains the MIPS compatible processor and
other components needed to effectively store and execute the kernel software, 16
port expansion cards either with or without a feature to support inadvertent
breaks and a power supply. The second is a proprietary kernel that uses UNIX
like functions and supports the use of the product as either a terminal server
to support connection of serial I/O based devices to application software on one
or more servers or to remotely manage console operations using the serial I/O
port on servers or other such devices. The kernel technology is supplied in the
form of an executable object and as source code that can be compiled given the
proper licenses for software from Xxxxxxxxx and others. The third is a
proprietary GUI design that is used to administer the RAS2000 device and its
ports. The GUI is executable within the supplied executable kernel and is
provided within the source code. The fourth is an application entitled ISERVD
that operates on a UNIX host and employs pseudo tty operations to allow
application software to use the serial ports on a RAS2000 device effectively.
The ISERVD technology is supplied as source code only. It has been compiled for
a number of UNIX platforms but the primary support from Symbiat (formerly known
as Computone Corporation) has been in the form of source code to be compiled for
a target platform.
Intellectual Property
---------------------
The source code to the kernel is intellectual property and has been protected so
as to not violate intellectual property laws relating to disclosure. ISERVD has
been provided to the public as source code to be compiled by the user. It is
arguable as to whether this has been protected and thus may be classified a
public domain property. RAS2000 is a service xxxx. The Computone logo is a
service xxxx. Intelliserver is a trademark. All rights to and ownership of the
Computone brand name, logo, web domain (xxx.xxxxxxxxx.xxx), content of the
Computone website, trademarks and service marks. All of the Engineering drawing
relative and CAD files are proprietary to Symbiat and are part of the
Intellectual Property. These items have been protected and when released for the
purpose of manufacturing have been done so with the appropriate confidentiality
statements. Prior to the move from Windward Ridge, they were kept in locked
cabinets in a locked and limited access room. There is no tangible reason to
believe that the engineering items have been compromised since their relocation
to Avalon Ridge.
Object Code
-----------
RAS2000 CD
INDEX
--------------------------------------------------------------------------------
PART DESCRIPTION PART NUMBER
--------------------------------------------------------------------------------
RAS 2000 PowerRack Hardware Guide 0-13086 Rev -
---------------------------------
--------------------------------------------------------------------------------
RAS 2000 Software Configuration Guide 0-22200
--------------------------------------------------------------------------------
RAS 2000 PowerRack Windows NT Supplement 0-13087 Rev A
--------------------------------------------------------------------------------
RAS 2000 Release 3.0 Release Notes 0-13091 Rev B
--------------------------------------------------------------------------------
RAS 2000 Web Interface Guide 0-13086 Rev -
--------------------------------------------------------------------------------
RAS 2000 Tipmenu Release Notes 0-13094
--------------------------------------------------------------------------------
RAS 2000DC Release Notes 0-28008 Rev-
--------------------------------------------------------------------------------
DB-9 Patch Pack Release Notes 0-28050
--------------------------------------------------------------------------------
DB-25 Patch Pack Release Notes 0-28051
--------------------------------------------------------------------------------
RAS2000 Product Description PDF Brochure 1 of 3
--------------------------------------------------------------------------------
RAS2000 Technical Specification PDF Brochure 2 of 3
--------------------------------------------------------------------------------
Optional Equipment PDF Brochure 3 of 3
--------------------------------------------------------------------------------
Drivers iservd 0-00000-00
--------------------------------------------------------------------------------
Drivers NT
--------------------------------------------------------------------------------
Kernel r2k306 0-00000-00
--------------------------------------------------------------------------------
Kernel r2k308 0-00000-00
--------------------------------------------------------------------------------
***RAS2000 Documentation/Software P/N 0-39015 Rev E
Source Code
-----------
Symbiat, Inc
RAS2000 Transfer of Technology Manifest
---------------------------------------
(January 22, 2003)
The following RAS200 software source code components and documentation
components are contained on the included CDROM media.
IntelliServer Source Code Tree (Intelliserver)
----------------------------------------------
Contains the complete source code tree from the Perforce Source Control
System for building all versions of the RAS2000 kernel from version 2.0 to
the latest build, version 3.0.9a. This code
tree is also used to build the SlimLine kernel using a build time option.
NOTE: This source code package does not include the transfer of the
Perforce Source Code Control System. Therefore, it's not possible to access
the change history information other than that noted by the programmers in
the source code. Compiler licenses are not included in this transfer.
Iservd Source Code Tree (Iservd)
--------------------------------
Contains the source for building the Iservd and Iservcat host based utility
programs for supported operating systems.
RAS2000 Device Driver for Windows 2000 (r2k.W2K)
------------------------------------------------
Contains the source for building the RAS2000s' Windows 2000 device driver
and the monitor/diagnostic tool.
NOTE: The monitor tool is not a core component of the driver. It is an
unsupported utility to aid installation and troubleshooting and is written
in Pascal.
RSP Linux Device Driver "Pre-Alpha" (rsp.Linux)
-----------------------------------------------
This code is incomplete and non-functional. It is the beginning of a
RAS2000 Windows NT style driver for the Linux operating system.
RAS2000 Documentation Components
--------------------------------
The following is a list of the included documentation files. With the
exception of the PDF builds, these files are in the original editable form
and are in the editing tool's native file format. Most are in Adobe
FrameMaker, or Microsoft Word file format. The marketing materials are in
Quark file format. NOTE: Documentation tools are not included in this
transfer.
o RAS 2000 PowerRack Hardware Guide
o RAS 2000 Software Configuration Guide
o RAS 2000 PowerRack Windows NT Supplement
o RAS 2000 Release 3.0 Release Notes
o RAS 2000 Web Interface Guide
o RAS 2000 Tipmenu Release Notes
o RAS 2000DC Release Notes
o DB-9 Patch Pack Release Notes
o DB-25 Patch Pack Release Notes
o RAS2000 Product Description PDF
o RAS2000 Technical Specification PDF
o Optional Equipment PDF
EXHIBIT F
---------
Components To Be Retained By Seller
SCHEDULE F
Actual Estimate
Retained to Altura
================= ================== ================================== ========== =========
RAS2000/16 0-13080-2 HARDWARE WARRANTY REGISTRATION 0 2714
RAS2000/16 0-13088 RAS2000 READ ME FIRST 0 1415
RAS2000/16 0-20158 INSERT POWERRACK CAUTION CARD 21 0
RAS2000/16 0-28050 RN: DB9 PATCH PACK 113 0
RAS2000/16 0-28051 RN: DB25 PATCH PACK 80 0
RAS2000/16 0-29950 CD ENVELOPE 418 0
RAS2000/16 0-39000 BLANK CD 319 0
RAS2000/16 1-00072 RES;1MEG OHM;1/4W;5%;CRBN FLM 0 0
RAS2000/16 1-00102 SM RES;120 OHM;1/10W;5%;0805 1350 0
RAS2000/16 1-00111 SM RES;27 OHM;1/10W;5%;0805 1600 20300
RAS2000/16 1-00113 SM RES;4.7K;1/10W;5%;0805 1200 2300
RAS2000/16 0-00000 XX XXX;0 XXXX;0/00X;0%;0000 1000 8950
XXX/RCM 0-00000 XX XXX; 1K; 1/10W;5%;0805 525 0
XXX/RCM 0-00000 XX XXX; 47 OHM; 1/10W;5%;0805 1000 3950
XXX/RCM 0-00000 XX XXX; 270 OHM; 1/10W;5%;0805 1000 11232
XXX/RCM 0-00000 XX XXX; 10 OHM; 1/10W;5%;0805 1000 24431
XXX/RCM 0-00000 XX XXX; QARY270 OHM; 1/16W;150L 1000 5280
RAS2000/16 1-01057 SM CAP;6.8UF;20%;25V;TANT 52 0
XXX/RCM 1-01070 CAP;.33PF;10%;50V;CER;COG;0805 1000 10302
RAS2000/16 1-01071 CAP;.1UF;20%;50V;CER;Z5U;0805 1000 61500
RAS2000/16 1-01078 SM CAP;2200PF;1KV;20%;1808 1000 23300
RAS2000/16 1-01083 SM CAP;68PF;50V;0805 1000 8000
XXX/RCM 1-01114 SM CAP;,.1UF,X7R,105,16V,0603 1391 0
XXX/RCM 1-01123 CAP SM 100UF 16V 1000 2017
RAS2000/16 1-01174 CAP,100PF;50V,10%,COG,0805,SM 836 0
RAS2000/16 1-01230 CAP,100UFD,20%,10V,TAN SM7343 1000 1250
RAS2000/16 1-02293 SM IC;74ALS623 1000 2374
XXX/RCM 1-02410 SM IC, QUAD UART 16C654 56 0
XXX/RCM 1-02463 SMIC, FPGA 7128S-10,100TQFP 15 0
XXX/RCM 1-02474 SMIC, MAX825T, 5VS, 4.63VTH 100 1750
XXX/RCM 1-02528 SMIC, RS-232 TRANSCIEVER, W/ SHUT DOWN, 5V ONLY 100 0
RAS2000/16 1-02988 HD,PLSI2032,80MHZ,44 PIN PLCC 428 0
RAS2000/16 1-02988-2 IC,PLSI2032,BKP1B0 126 0
RAS2000/16RCM 1-03534 FERRITE CORE 62 0
XXX/RCM 0-00000-00 HDR; 2X5;230 MT; 1 SPACING 100 446
XXX/RCM 1-04352 HEADER, .1 SP, RIGHT ANGLE 6 0
XXX/RCM 1-04476 CONN, RJ45 00 XXX,XX XXXXX XXX XXX X/XXXXXX 799 0
RAS2000/16 1-04513 SLIDE LATCH KIT;DB15 0 0
RAS2000/16 1-04560 CONN,ISA PWR HDR,6 CIRCUIT 741 0
RAS2000/16 1-04563 CONN, DIN32,FEM,VERT PCB MNT 536 0
XXX/RCM 1-04564 CONN,DIN32,MLE,RHT ANG,PCB MNT 1000 9200
RAS2000/16 1-04809 SWITCH CAP,RECTANGLE,XXXX 522 0
XXX/RCM 1-04815 SW, MOMENTARY, RA, N.O. 13 0
XXX/RCM 1-05317 SM,OSC;14.7456MHZ,40/60;100PPM 100 5457
RAS2000/16 1-05608 POWERRACK PC POWER SUPPLY 6 0
RAS2000/16 1-05608-1 POWER SUPPLY,RACK SVR MODIFIED 0 0
RAS2000/16 1-05610 CORD;POWER 10A/125 VAC 0 0
RAS2000/16 1-06015 BLANK CD LABEL 1060 0
XXX/RCM 1-06016 BLANK WARRANTY LABEL 2520 0
RAS2000/16 1-06056 LBL;.65X.20;TMPR-RES VNYL,UL 1000 0
XXX-16RJ-32 1-06061 SHIPPING LABEL 0 506
RAS2000/16 1-06089 LABEL;2.875X.625;THERMAL XFER; BLANK 25000 5000
RAS2000/16 1-06104 LABEL;.3WX.2;COMP PRINT;MYLAR 132476 22000
RAS2000/16 1-06122 LABEL;3X.375 WHITE 552 0
RAS2000/16 1-06159 LABEL,CE XXXX 0 179
RAS2000/16 1-06180 / 1-06016 LABEL, CD S/W WARRANTY 0 2390
RAS2000/16 1-06633P FRONT COVER, RIC-16R, W/ EMI 100 93
RAS2000/16 1-06634P FRONT COVER,BLANK,RACK ENCL 21 0
RAS2000/16 1-06635 RACK MNT BRACKET,RACK ENCL 500 1135
RAS2000/16 1-06638P FRONT COVER, RISC-866 100 361
RAS2000/16RCM 1-06639P front cover 50 96
RAS2000/16RCM 1-06822 led clip retainer ring 1000 3840
RAS2000/16RCM 1-06824 led panel clip 200 582
RAS2000/16 1-06848 LBL, PR RAS2000 REAR 0 550
RAS2000/16 1-07036 SCREW;#4-40X5/16,TRUSS HEAD 1000 1000
RAS2000/16 1-07037 SCREW,#6-32X1/4,BLK PANHDL,PHL 2000 20800
RAS2000/16 1-07038 SCREW;#4-40X7/8 BLK PANHD PHIL 500 740
RAS2000/16 1-07039 SCREW;#4-40X1/4 PANHD,PHIL 3000 6200
RAS2000/16 1-07041 WASHER,SPLIT #4 STL 1200 13200
RAS2000/16 1-07042 WASHER,SPLIT #6 STL 1200 1107
RAS2000/16 1-07043 NUT,#6-32, HEX 1200 6000
RAS2000/16 1-07058 CARD GUIDE,NYLON, 4" LONG 500 1260
RAS2000/16 1-07059 FEET,RND .625X.312 200 606
RAS2000/16 1-07061 SCREW,M6X8,PHIL,PAN,SS,ZINC 250 1710
RAS2000/16 1-07062 SCREW,#10-32,1/2",PHIL,PAN,SS, 250 150
RAS2000/16 1-07160 SCREW 4-40X5/8 PAN 1200 10200
RAS2000/16 1-07197 SCREW;#4-40X3/16 82 DEG C-SINK 1200 2700
RAS2000/16 1-07201 CABLE CLAMP,CLIP,3/4"RND, 250 940
RAS2000/16 1-07366 LBL;STTC SENSITIVE;2X2 YELLOW 3310 0
RAS2000/16 1-07375 LABEL;FCC CLASS B;PAPER 0 11450
RAS2000/16 1-07458 SPACER,3/16 XXXX0/0,#0 XXXXX- 0 0
XXX0000/00 0-00000 XXXXX, XX RAS2000 XXX 0 279
RAS2000/16 1-08210 BRACKET,CARD GUIDE MNTG ENG, 250 444
XXX-16RJ-32 1-09075 shipping box 12 0
XXX-16RJ-32 1-09077 insert 62 0
RAS2000/16 1-09079 INSERT,PKG;RACK ASSY 55 355
RAS2000/16 1-09080 SHIP BOX,P RACK.18X8-3/8X13- 0 0
RAS2000/16 1-09081 INSERT,P.RACK,END CAP 0 0
RAS2000/16 1-09082 INSERT,P.RACK,TOP CRUSH ZONE 0 0
RAS2000/16 1-09216 CABLE TIE 4 IN 250 300
RAS2000/16 1-09217 ADHESIVE CABLE TIE MOUNT 150 208
RAS2000/16 1-09505 BAG;ZIP;4 X 6; 4 MIL THK;PLAST 350 0
XXX-16RJ-32 1-09507 static bag 0 250
RAS2000/16 1-09509 BAG,ZIP,POLY,6X9,2 MIL,CLEAR 2050 0
RAS2000/16 1-09510 BAG,ANTI-STATIC,20X24",4 MIL 105 0
RAS2000/16 1-10400 PWB,BACKPLANE,RACK SVR-32 0 963
RAS2000/16RCM 0-00000-0 led blue 52 75
RAS2000/16 2-20119 CABLE,CAT5,SHIELDED,7FT,XXXX 500 156
RAS2000/16 2-20122 CABLE,V'PORT XX XX00 00 XXX XX 000 0000
RAS2000/16 2-20365 CABLE SVR BACKPLANE ASSY 50 123
RAS2000/16RCM 0-00000-0 led green 50 66
XXX/RCM 0-00000-0 LED CABLE ASSEMBLY BLUE 50 87
RAS2000/16 2-25032 CABLE, DB9/RJ 10 PIN RECPT. 30 96
RAS2000/16 2-80101 CD PACK, RAS2000/16/32/48/64 0 0
RAS2000/16 2-90160 RACK ASSY MECH KIT 0 0
RAS2000/16 3-07202K PWB ASSY;BACKPLANE;RACK SVR-32 0 (a)
RAS2000/16 3-07205 ASSY, RACK CHASSIS, 5 SLOT 0 (a)
RAS2000/16 3-07206P ASSY,BASE CHASSIS RACK 0 (a)
RAS2000/16 3-07210 ASSY,RACK,I/O CARD 16RJ 0 (a)
RAS2000/16 3-07212P XXX-16RJ TURNKEY 0 (a)
RAS2000/16 3-07213P PWB ASSY,RACK-SVR 0 (a)
RAS2000/16 3-07214 ASSY,RACK SERVER,RISC-860 0 (a)
RAS2000/16 3-07225 ASSY,RACK-SERVER BLANK COVER 0 (a)
RAS2000/16 3-07491-1 ASSY, RAS2000, 16RJ 232 0 (a)
RAS2000/16 3-09091 RAS2000 SHIPPING KIT 0 (a)
3-07525 PWB ASSEMBLY XXX-16RJ\RCM 0 (a)
RAS2000/16 2-20121 CABLE, V'PORT-RJ RJ45 10 pin (a)
RAS2000/16 2-25024 CABLE, RJ45;VERT MT; SHLD;8PIN (a)
RAS2000/16 2-25029 RJ45 10 PIN-RJ45 CISCO/NETRA (a)
rj45/10 CONNECTORS FOR THE 2-25024 CABLE (a)
CABLE EVAL PACK (a)
(a) All remaining units will go to Altura XL after completion of manufacturing
the Purchased Units.
EXHIBIT G
---------
Amounts Due to Individual Members of the Purchaser
Amounts relating to Xxxxxxx X. Xxxxxx:
Commission for quarter ended March 31, 2002
(half of total of $4,000.00) $ 2,000.00
Commission for quarter ended June 30, 2002 4,000.00
Commission for quarter ended September 30, 2002 4,000.00
Commission for quarter ended December 31, 2002 -
Credit against actual amount 6,000.00
Amounts relating to Xxxxx X. Xxxxxx:
Salary and car allowance $ 6,456.43
EXHIBIT H
---------
[Reserved]
EXHIBIT I
---------
Warranty Card
EXHIBIT J
---------
XXXX OF SALE
STATE OF GEORGIA
COUNTY OF GWINNETT
KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned Symbiat, Inc., a
Delaware corporation ("Seller"), with its principal office at 0000 Xxxxxx Xxxxx
Xxxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxx Xxxxxx, Xxxxxxx for and in consideration
of the payment of the sum of Ten Dollars ($10) and other good and valuable
consideration, the receipt and adequacy of which is hereby acknowledged and
pursuant to that certain Asset Purchase Agreement dated to be effective as of
January 30, 2003 (the "Agreement") by and between Seller and Altura XL LLC, a
Georgia limited liability company ("Buyer"), with its principal office at 000
Xxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxx Xxxxxx, Xxxxxxx, does hereby grant, bargain,
sell, transfer and convey to Buyer the Purchased Assets (as defined in the
Agreement) and including:
All assets pertaining to the RAS2000 product line, including, without
limitation, (i) the RAS2000 Product Line, (ii) the Purchased Units, (iii)
the Purchased Equipment, (iv) the Purchased Documents, (v) the RAS2000
Technology, the Intellectual Property, the Object Code and the Source Code
and (vi) all new and used units, components, cables, sub-assemblies and
packaging material pertaining to the RAS2000 Product Line after delivery of
the Purchased Units not deemed necessary for the warranty and repair of the
RAS2000 products or internal operations of Seller.
TO HAVE AND TO HOLD, all and singular, the Purchased Assets sold, assigned,
transferred and conveyed to Buyer, its successors and assigns, to and for its
own use and benefit forever.
The Seller hereby irrevocably constitutes and appoints Buyer, its
successors and assigns, and each of them, the true and lawful attorney of the
Seller with the full power of substitution and gives and grants unto the Buyer,
its successors and assigns, and each of them, full power and authority in the
name of the Seller, its successors and assigns, at any time from time to time to
demand, xxx for, recover receive, compound, acquit, release and discharge any
and all rights, demands, moneys, claims and choses in action of every kind and
description whatsoever arising out of, incident to or in connection with the
Purchased Assets and upon the same or any part thereof to make acquittance or
other proper discharge with respect thereto.
The Seller, for itself, its successors and assigns, agrees to execute any
and all documents, and to perform such other acts, as are reasonably necessary
to further the purposes and intent of this Xxxx of Sale.
This instrument shall be binding upon the Seller, its successors and
assigns, and shall inure to the benefit of the Buyer and its successors and
assigns.
Seller, for itself and its successors and assigns, warrants that it is the
lawful owner in every respect of the Purchased Assets and that the Purchased
Assets are free and clear of all liens, security agreements, encumbrances,
claims, demands, and charges of every kind whatsoever. Seller, for itself and
its successors and assigns, agrees to defend Buyer's title to all of the
Purchased Assets, on behalf of Buyer and its successors and assigns, forever
against any person claiming the Purchased Assets or any part of them.
Notwithstanding anything herein or elsewhere to the contrary, to the extent
a conflict arises between the terms and provisions of this Xxxx of Sale and the
terms and provisions of the Agreement, the Agreement shall supercede the terms
and provisions of this Xxxx of Sale and shall govern interpretation hereof.
IN WITNESS WHEREOF, the Buyer has executed this Xxxx of Sale to be
effective as of January 30, 2003.
SYMBIAT, INC.
By: /s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx, President
