FASTCALL PURCHASE AGREEMENT
DECEMBER 31, 1997
SPANLINK COMMUNICATIONS, INC.
BUYER
AND
AURORA SYSTEMS, INC.
SELLER
TABLE OF CONTENTS
ARTICLE 1. PURCHASE OF FASTCALL: ASSUMPTION OF LIABILITIES...................
1.1 Purchase of Assets from Seller..........................................1
1.2 Royalty-Free License....................................................2
1.3 Sales, Use and Deed Taxes...............................................2
1.4 Assumption of Liabilities...............................................3
1.5 Warranty Obligations....................................................3
ARTICLE 2. PURCHASE PRICE AND- PAYMENT........................................3
2.1 Purchase Price..........................................................3
2.2 Payment of Purchase Price...............................................4
ARTICLE 3. REPRESENTATIONS AND WARRANTIES OF SELLER...........................5
3.1 Organization............................................................5
3.2 Qualification...........................................................5
3.3 Financial Information...................................................5
3.4 Tax Reports, Returns and Payment........................................6
3.5 Title and Sufficiency of Assets.........................................6
3.6 Trademarks..............................................................6
3.7 Patents.................................................................6
3.8 Licenses and Permits....................................................6
3.9 Agreements, Contracts and Commitments..................................6
3.10 Change In Customers....................................................7
3.11 Product Warranty Claims................................................7
3.12 Litigation, Adverse Claims and Related Matters.........................7
3.13 Laws and Regulations...................................................7
3.14 Breaches of Contracts; Required Consents...............................7
3.15 Binding Obligation.....................................................7
3.16 Commissions or Finder's Fees...........................................8
3.17 Employee Agreements....................................................8
3.18 Completeness of Disclosure.............................................8
ARTICLE 4. REPRESENTATIONS AND WARRANTIES OF BUYER............................8
4.1 Organization............................................................8
4.2 Qualification...........................................................9
4.3 Corporate Authority.....................................................9
4.4 Financial Information...................................................9
4.5 Licenses and Permits....................................................9
4.6 Litigation, Adverse Claims and Related Matters..........................9
4.7 FastCall Resources......................................................9
4.8 Breaches of Contracts: Required Consents................................9
4.9 Binding Obligation.....................................................10
4.10 Commissions or Finder's Fees..........................................10
4.11 Completeness of Disclosure............................................10
ARTICLE 5. CONDUCT OF BUSINESS AND TRANSACTIONS PRIOR TO CLOSING.............10
5.1 Access to Information..................................................10
5.2 Restrictions in Operation of the Business..............................10
5.3 No Solicitation of Other Offers........................................11
5.4 Confidentiality Agreement..............................................11
5.5 Offer of Employment....................................................13
5.6 Cash Payment...........................................................13
ARTICLE 6. CONDITIONS OF CLOSING; ABANDONMENT OF TRANSACTION.................13
6.1 Conditions to Obligations of Buyer to Proceed on the Closing Date......13
6.2 Conditions to Obligation of Seller to Proceed on the Closing Date......15
6.3 Termination of Agreement...............................................16
6.4 Consequences of Termination............................................16
ARTICLE 7. CLOSING...........................................................17
7.1 Closing................................................................17
7.2 Documents to be -Delivered by Seller...................................17
7.3 Documents Delivered by Buyer...........................................17
ARTICLE 8. POST CLOSING OBLIGATIONS..........................................18
8.1 Covenant Not to Compete................................................18
8.2 Further Documents and Assurances.......................................18
8.3 Consulting.............................................................19
8.4 Accounts Receivable....................................................19
8.5 Un-Invoiced Sales......................................................19
8.6 Fleet Capital Corporation Releases.....................................19
ARTICLE 9. INDEMNIFICATION...................................................19
9.1 Indemnification by Seller..............................................20
9.2 Seller's Limitation of Liability.......................................20
9.3 Indemnification by Buyer...............................................20
9.4 Buyer's Limitation of Liability........................................20
9.5 Limitations on Indemnification.........................................21
9.6 Third Party Claims.....................................................21
ARTICLE 10. GENERAL..........................................................21
10.1 Assignment............................................................22
10.2 Counterparts..........................................................22
10.3 Exhibits..............................................................22
10.4 Notices...............................................................22
10.5 Successors and Assigns................................................22
10.6 Expenses..............................................................22
10.7 Entire Agreement......................................................22
10.8 Modification and Waiver...............................................23
10.9 Publicity.............................................................23
10.10 Governing Law........................................................23
10.11 Knowledge............................................................23
10.12 Benefit..............................................................23
10.13 Comdial Corporation..................................................23
LIST OF EXHIBITS
Exhibit 1.1(a) List of Names, Assumed Names, Tradenames and Trademarks of Seller
Exhibit 1.1(b) List of Patents
Exhibit 1.1(d) Accounts Receivable
Exhibit 1.1(c) Computer Programs and Software
Exhibit 1.1(f) FastCall Licenses and Permits
Exhibit 1.1(g) FastCall Contracts and Customers
Exhibit 3.3 Seller Financial Information
Exhibit 3.4 Tax Reports, Returns and Payments
Exhibit 3.5 Seller Encumbrances on Assets
Exhibit 3.8 Consents Required to Assign Licenses
Exhibit 3.14 Other Required Consents
Exhibit 4.4 Buyer Financial Information
Exhibit 5.5 Seller Assisted Signing Bonus
FASTCALL PURCHASE AGREEMENT
DATE: December 31, 1997
PARTIES: Spanlink Communications, Inc.
0000 Xxxxxxxxx Xxxxxxx
Xxxxxxxx Xxxx, XX 00000 ("Buyer")
Aurora Systems, Inc.
00 Xxxxx Xxxx
Xxxxx, XX 00000 ("Seller")
RECITALS:
A. Seller has developed and is distributing and selling a computer
telephone integration product known as FastCall ("FastCall") which provides a
personal computer with Windows desktopbased screen pops, and an NT server-based
version of FastCall which provides call functionality, known as FastCall Central
("FastCall Central"). FastCall and FastCall Central are sometimes referred to
collectively as the "FastCall Products."
B. The parties mutually desire that Seller shall sell to Buyer and the
Buyer shall purchase from the Seller the FastCall Products and related business
assets, upon the terms and subject to the conditions set forth in this
Agreement.
AGREEMENT:
In consideration of the mutual provisions, representations, warranties,
covenants and agreements contained herein, the parties hereto agree as follows:
ARTICLE 1.
PURCHASE OF FASTCALL; ASSUMPTION OF LIABILITIES
1.1 Purchase of Assets from Seller. Subject to the terms and conditions
hereof, Seller agrees on the Closing Date (as hereinafter defined) to assign,
sell, transfer, convey and deliver or license to Buyer, and Buyer agrees on the
Closing Date to purchase or otherwise acquire from Seller, the FastCall Products
and all of the intangible personal property, business records, customer lists,
contract rights and goodwill of Seller related to the FastCall Products,
wherever the same may be located (collectively referred to as the "Purchased
Assets"), including, without limitation, the following:
(a) All names and assumed names under which Seller develops,
markets and sells the FastCall Products, all tradenames, trademark or
service xxxx registrations and
applications, common law trademarks, including but not limited to those
identified on Exhibit 1.1(a) hereto, and all goodwill associated
therewith (the "FastCall Trademarks");
(b) Subject to the provisions of Section 1.2 hereof, all
domestic and foreign letters patent, patent applications, and patent
and know-how licenses, including but not limited to those identified on
Exhibit 1.1(b) hereto but excluding the license agreement between
Seller and Syntellect Technology Corp. effective as of February 12,
1996 (the "Syntellect License") ("Patents"), together with copies of
Seller's legal files and other background information relating to any
such Patents;
(c) All technology, know-how, trade secrets, designs, computer
source code, copyrights (including all registrations and applications
therefor), related to the FastCall Products, including all documentary
evidence thereof, and the computer programs and software (the "Computer
Programs") listed on Exhibit 1.1(c) (the "FastCall Technology");
(d) All rights to accounts receivable from sales of the
FastCall Products invoiced in the calendar quarter commencing October
1, 1997 and ending December 31, 1997 (the "Fourth Quarter,), which are
in excess of One Hundred Ninety Thousand Two Hundred Fifty Three
Dollars and Fifty Cents ($190,253.50) (the "Excess Accounts
Receivable"), but no rights to the other accounts receivable of Seller
whether or not invoiced in the Fourth Quarter.
(e) All rights to payment for sales of the FastCall Products
in the Fourth Quarter which have not been invoiced to customers as of
the Closing (the "Un-Invoiced Sales"), including the un-invoiced sale
to Lucent Technologies (NJ) identified on Exhibit 1.1(d).
(f) All permits, licensing approvals and notifications,
governmental or otherwise, relating to the FastCall Products (the
"FastCall Licenses and Permits"), including those listed on Exhibit
1.1(f); and
(g) All contract rights (except any real estate leases and
personal property leases) relating to the FastCall Products (the
"FastCall Contracts"), including those rights pursuant to the contracts
described in Exhibit 1.1(g).
1.2 Royalty-Free License. At the Closing, Buyer shall grant to Seller
and Comdial Corporation a royalty-free non-exclusive license to use the Patents
for any purposes that do not conflict with the express provisions of this
Agreement.
1.3 Sales, Use and Deed Taxes. Seller shall be responsible for payment
of any sales, use or deed taxes assessable with respect to the transfer of the
Purchased Assets contemplated herein.
1.4 Assumption of Liabilities. Buyer agrees to assume the obligations
of Seller which arise from and after the Closing under the FastCall Licenses and
Permits, including those listed on Exhibit 1.1(f), and under the FastCall
Contracts, including those listed on Exhibit 1.1(g).
1.5 Warranty Obligations. Buyer agrees to assume the remainder of the
Seller's existing warranty obligations arising in the normal course of Seller's
business with respect to the FastCall Products sold by it prior to the Closing.
ARTICLE 2.
PURCHASE PRICE AND- PAYMENT
2.1 Purchase Price. The purchase price for the Purchased Assets
("Purchase Price") shall be paid as royalties computed with reference to sales
revenue invoiced by Buyer from the sale, distribution or licensing of the
FastCall Products and all enhancements, upgrades, modifications and improvements
thereto or derivatives thereof and including replacement products developed by
Buyer (collectively the "Royalty Products"), and shall be determined as follows:
(a) Calculation of Purchase Price. Buyer shall pay to Seller
as and for the actual Purchase Price an amount of royalties
("Royalties") based on sales revenue invoiced by Buyer from sales of
the Royalty Products ("FastCall Revenues"). The Purchase Price shall
be equal to twenty-five percent (25%) of all FastCall Revenues (i)
invoiced by Buyer during the period commencing on the Closing Date
and ending December 31, 2000, and (ii) invoiced or received by Buyer
from Excess Accounts Receivable pursuant to Section 1.1(d) and from
Un-Invoiced Sales pursuant to Section 1.1(f), plus fifteen percent
(15%) of all FastCall Revenues invoiced by Buyer during the period
commencing on January 1, 2001 and ending December 31, 2002.
(b) Minimum and Maximum Limits of Purchase Price. The total
Purchase Price shall be no less than Six Hundred Thousand Dollars
($600,000) (the "Minimum Purchase Price") and no greater than One
Million One Hundred Thousand Dollars ($1,100,000) (the "Maximum
Purchase Price").
(c) Allocation of Sales Revenue. The parties acknowledge and
agree that the FastCall Products may be integrated with other
products ("Replacement Products") sold by Buyer in the generation of
FastCall Revenues. In such event Buyer shall determine the portion of
the total sales revenue from each Replacement Product that is
properly allocable to the FastCall Products and shall provide Seller
with information regarding the amount and method of such allocation.
(i) Except in the case set forth in clause (ii)
below, the revenue from each such Replacement Product
allocated to the FastCall Products (the "Allocated Revenue")
shall be at least eighty percent (80%) of the lowest price at
which
Buyer invoiced sales of the FastCall Products on a stand alone
basis during the twelve (12) month period (the "Look Back
Period") preceding the sale of each such Replacement Product.
In the event there are no sales of the FastCall Products
during the relevant Look Back Period, the Allocated Revenue
for the sale of Replacement Products shall be deemed to be an
amount equal to the last calculated Allocated Revenue
immediately preceding the Look Back Period.
(ii) In case the value of the FastCall Products
integrated into a Replacement Product is less than forty
percent (40%) of the value of the Replacement Product, the
Allocated Revenue with respect to such Replacement Product
shall be at least forty percent (40%) of the lowest price at
which Buyer invoiced sales of the FastCall Products on a stand
alone basis during the Look Back Period. In the event there
are no sales of the FastCall Products during the relevant Look
Back Period, the Allocated Revenue for the sale of Replacement
Products shall be deemed to be an amount equal to the last
calculated Allocated Revenue immediately preceding the Look
Back Period.
(iii) Nothing herein shall give Seller any right,
express or implied, to set sales prices or royalty rates with
respect to the Royalty Products, all of such rights being
reserved to Buyer, in Buyer's sole discretion.
(d) In determining the FastCall Revenue during each calendar
quarter, Buyer shall be entitled to reduce such revenue by returns
and sales allowances that are recorded on Buyer's books or records as
a reduction of sales during such calendar quarter in the ordinary
course of business and in accordance with generally accepted
accounting principles, but only to the extent previously included in
FastCall Revenues on which Royalties have been paid to the Seller.
2.2 Payment of Purchase Price. The Purchase Price shall be paid as
follows:
(a) Cash Payment. Buyer shall deliver to Seller at the Closing
an advance payment to be applied to the Purchase Price of One Hundred
Thousand Dollars ($100,000), less the amount of any payments or
credits due to Buyer from Seller at the Closing, by wire transfer to
a bank account designated by Seller.
(b) Payment of Balance of the Purchase Price. The balance of
the Purchase Price remaining after the credit of One Hundred Thousand
Dollars ($100,000) arising out of the cash payment made pursuant to
Section 2.2(a) shall be paid in quarterly installments, paid within
thirty (30) days after the end of each calendar quarter in which
FastCall Revenues were invoiced, in accordance with the following:
(i) The first of such payments shall be made with
respect to the calendar quarter ending March 31, 1998 and the
last of such payments shall be made with respect to the
calendar quarter ending December 31, 2002 (the "Payment
Period").
(ii) Each quarterly payment shall be in the amount of
the specified percentage of the aggregate FastCall Revenues
invoiced in such calendar quarter, except that the credit of
One Hundred Thousand Dollars ($100,000) arising out of the
cash payment made pursuant to Section 2.2(a) shall be applied
to the payment of that portion of the Purchase Price between
Five Hundred Thousand Dollars ($500,000) and Six Hundred
Thousand Dollars ($600,000).
(iii) In the event the aggregate amount of the
payments made towards the Purchase Price during the Payment
Period (the "Total Payment Amount") is less than the Minimum
Purchase Price, the Buyer will pay to Seller promptly at the
end of the Payment Period an amount equal to the difference
between the Minimum Purchase Price and the Total Payment
Amount.
(iv) The Payment Period shall terminate upon full
payment of the Maximum Purchase Price.
(c) Records Inspection. Seller shall have the right, at
reasonable times and upon reasonable notice, for its employees or
agents to inspect the records of the Buyer with respect to the
Royalty Products, for the purpose of verifying any allocations of
sales revenue made by the Buyer and the determinations of FastCall
Revenues and Royalties.
ARTICLE 3.
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller makes the following representations and warranties to Buyer with
the intention that Buyer may rely upon the same and acknowledges that the same
shall be true on the date hereof and as of the Closing Date (as if made at the
Closing) and shall survive the Closing of this transaction for a period of
twelve (12) months after the Closing Date.
3.1 Organization. Seller is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware, has all
requisite power and authority, corporate and otherwise, to own its properties
and assets and to conduct its business as it is now conducted.
3.2 Qualification. Seller is qualified to do business and is in good
standing as a foreign corporation in all states in which qualification is
required by the nature of its business and in which the failure to so qualify
and be in good standing would have a material adverse effect on the Purchased
Assets.
3.3 Financial Information. To the best knowledge of Seller, Seller has
furnished Buyer with the financial information attached hereto as Exhibit 3.3,
which is true and complete. In addition, Seller agrees to furnish to Buyer
within sixty (60) days of Closing audited financial statements of Aurora
Systems, Inc. for periods required by the rules and regulations of the
Securities and Exchange Commission (the "SEC") or as reasonably required by
Buyer's independent certified public accountants based on their interpretation
of the SEC requirements. The cost to provide such audited financial statements
or other financial information will be divided equally between Buyer and Seller.
3.4 Tax Reports, Returns and Payment. To the best knowledge of Seller,
Seller (or Comdial Corporation on behalf of Seller, through consolidated tax
returns) has accurately prepared and timely filed all federal and applicable
state, local, and foreign tax or assessment reports and returns of every kind
required to be filed by Seller with relation to its business, including, without
limitation, income tax, sales and use tax, real estate tax, personal property
tax and unemployment tax, and has duly paid all taxes and other charges
(including interest and penalties) due to or claimed to be due by any taxing
authorities, except as disclosed in Exhibit 3.4 attached hereto. Where required,
timely estimated payments or installment payments of tax liabilities have been
made to all governmental agencies in amounts sufficient to avoid underpayment
penalties or late payment penalties applicable thereto.
3.5 Title and Sufficiency of Assets. Seller holds title to the
Purchased Assets free and clear of all liens, encumbrances, licenses or leases,
except for the liens and security interests (the "Fleet Liens") disclosed in
Exhibit 3.5. The Purchased Assets are sufficient for Buyer to market, sell,
service and support the FastCall Products as marketed and sold at the Closing,
except to the extent, if any, the Syntellect License is required or necessary to
make this representation true and correct.
3.6 Trademarks. Seller has good title to the assumed names and the
FastCall Trademarks listed on Exhibit 1.1(a), free and clear of all liens and
encumbrances, except as disclosed in Exhibit 3.5. Such FastCall Trademarks are
not licensed to or licensed from any other person or entity.
3.7 Patents. Seller has good title to the Patents listed on Exhibit
1.1(b) hereto, free and clear of all liens and encumbrances except as set forth
on Exhibit 3.5.
3.8 Licenses and Permits. Seller possesses all permits, licenses,
approvals and notifications, governmental or otherwise, the absence of which
would have a material adverse effect on the Purchased Assets. Buyer acknowledges
that it is not taking an assignment of the Syntellect License, which is one of
the licenses that Seller possesses. Seller makes no representation as to whether
the absence of the Syntellect License would have a material adverse effect on
the Purchased Assets. Except as disclosed on Exhibit 3.8, all of such licenses
and permits are freely assignable and transferable to Buyer at the Closing and
will continue to be in full force and effect after such transfer.
3.9 Agreements, Contracts and Commitments. Except as disclosed on
Exhibit 3.5 or on other Exhibits attached hereto, Seller is not a party to or
bound by any written agreement relating to the Purchased Assets, nor does Seller
have any knowledge of any claims made by parties to the FastCall Contracts.
3.10 Change In Customers. To Seller's best knowledge, no significant
customer, including but not limited to those customers listed in Exhibit 1.1(g),
intends to cease doing business with Seller or materially alter the amount of
business with Seller.
3.11 Product Warranty Claims. The FastCall Products have been
merchantable and free from material defects in material or workmanship for the
term and under the conditions set forth in Seller's standard written limited
product warranty for its FastCall Products. Except for product warranty claims
in the ordinary course of business, during the last three (3) years Seller has
not received any claims based upon an alleged breach of product warranty arising
from Seller's sale of its FastCall Products (hereafter collectively referred to
as "Product Warranty Claims"). Seller has no reasonable grounds to believe that
future Product Warranty Claims with respect its FastCall Products prior to the
Closing Date will be different from Seller's past experience with respect
thereto as set forth herein.
3.12 Litigation, Adverse Claims and Related Matters. There is no
pending litigation (nor, to Seller's knowledge, any threatened litigation or any
claim which may lead to a threat of litigation), proceeding, or investigation
(including any environmental, building or safety investigation) relating to any
material aspect of the Purchased Assets, nor is Seller subject to any existing
judgment, order or decree which would prevent, impede, or make illegal the
consummation of the transactions contemplated in this Agreement or which would
have a material adverse effect on the Purchased Assets.
3.13 Laws and Regulations. Seller has complied, and is in compliance on
the Closing Date, with all applicable laws, statutes, orders, rules, regulations
and requirements promulgated by governmental or other authorities relating to
the Purchased Assets, the failure of which would have a material adverse effect
on the Purchased Assets. Seller has not received any notice of any sort of
alleged violation of any such statute, order, rule, regulation or requirement.
3.14 Breaches of Contracts; Required Consents. Neither the execution
and delivery of this Agreement by Seller, nor compliance by Seller with the
terms and provisions of this Agreement will, except as otherwise disclosed
herein or in any Exhibit attached hereto:
(a) Conflict with or result in a breach of (i) any of the
terms, conditions or provisions of the Certificate of Incorporation,
Bylaws or other governing instruments of Seller, (ii) any judgment,
order, decree or ruling to which Seller is a party, (iii) any
injunction of any court or governmental authority to which Seller is
subject, or (iv) any agreement, contract or commitment which is
material to the Purchased Assets; or
(b) Except as disclosed in Exhibit 3.14 hereto, require the
affirmative consent or approval of any third party, the absence of
which would have a material adverse effect on the Purchased Assets.
3.15 Binding Obligation. This Agreement constitutes the legal, valid
and binding obligation of Seller in accordance with the terms hereof. Seller has
all requisite corporate power and authority, including the approval of its
Shareholders and Board of Directors, to execute
perform, carry out the provisions of and consummate the transactions
contemplated in this Agreement.
3.16 Commissions or Finder's Fees. Seller has not engaged any broker or
finder in connection with the transaction contemplated herein.
3.17 Employee Agreements. Seller has no knowledge that any current or
former employee of Seller has violated any confidentiality agreements.
3.18 Completeness of Disclosure. To Seller's knowledge, no
representation in this Article contains any untrue statement of a material fact
or omits to state any material fact the omission of which would be misleading.
ARTICLE 4.
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer makes the following representations and warranties to Seller,
with the intention that Seller may rely upon the same, and acknowledges that the
same shall be true as of the Closing Date (as if made at the Closing) and shall
survive the Closing of this transaction for a period of twelve (12) months after
the Closing Date..
4.1 Organization. Buyer is a corporation, duly organized, validly
existing in good standing under the laws of the State of Minnesota, and has all
requisite power and authority, corporate and otherwise, to own its properties
and assets and conduct its business as it is now conducted.
4.2 Qualification. Buyer is qualified to do business and is good
standing as a foreign corporation in all states in which qualification is
required by the nature of its business and in which the failure to so qualify
and be in good in standing would have a material adverse effect on its business.
4.3 Corporate Authority. Buyer has all requisite power and authority,
including the approval of its Board of Directors, to execute, perform, carry out
the provisions in this Agreement.
4.4 Financial Information. Buyer has furnished Seller with the
financial information attached hereto as Exhibit 4.4, true and complete.
4.5 Licenses and Permits. Buyer possesses, or from and after the
Closing Date will possess, all permits, licenses, approvals and notifications,
governmental or otherwise, the absence of which would have a material adverse
effect on its business after consummation of the transactions contemplated in
this Agreement.
4.6 Litigation, Adverse Claims and Related Matters. There is no pending
litigation (nor, to Buyer's knowledge, any threatened litigation or any claim
which may lead to a threat of litigation), proceeding, or investigation
(including any environmental, building or safety investigation) relating to any
material aspect of Buyer's business, nor is Buyer subject to any existing
judgement, order or decree which would prevent, impede, or make illegal the
consummation of the transactions contemplated in this Agreement or which would
have a material adverse effect on Buyer's business.
4.7 FastCall Resources. Buyer has sufficient resources to market and
sell the Royalty Products, and will use all reasonable efforts in light of
market conditions generally prevailing from time to time to generate revenues
from the sale, distribution or licensing of Royalty Products.
4.8 Breaches of Contracts: Required Consents. Neither the execution and
delivery of this Agreement by Buyer, nor compliance by Buyer with the terms and
provisions of this Agreement, will:
(a) Conflict with or result in a breach of. (i) any of the
terms, conditions or provisions of the Articles of Incorporation,
Bylaws or other governing instruments of Buyer, (ii) any judgment,
order, decree or ruling to which Buyer is a party, (iii) any injunction
of any court or governmental authority to which it is subject, or (iv)
any agreement, contract or commitment which is material to the
financial condition of Buyer; or
(b) Require the affirmative consent or approval of any third
party.
4.9 Binding Obligation. This Agreement constitutes the legal, valid and
binding obligation of Buyer in accordance with the terms hereof. Buyer is not
subject to any charter, mortgage, lien, lease, agreement, contract, instrument,
law, rule, regulation, order, judgment or decree, or any other restriction of
any kind or character, which would prevent the consummation of the transactions
contemplated in this Agreement.
4.10 Commissions or Finder's Fees. Buyer has not engaged any broker or
finder in connection with the transactions contemplated herein.
4.11 Completeness of Disclosure. No representation in this Article
contains any untrue statement of a material fact or omits to state any material
fact the omission of which would be misleading.
ARTICLE 5.
CONDUCT OF BUSINESS AND TRANSACTIONS PRIOR TO CLOSING
5.1 Access to Information. During the period prior to the Closing,
Seller shall give to Buyer and its attorneys, accountants or other authorized
representatives, full access to all of the property, books, contracts,
commitments and records relating to the Purchased Assets and shall furnish to
Buyer during such period all such information concerning the Purchased Assets as
Buyer reasonably may request. Buyer shall have the right to contact Seller's
employees regarding the Purchased Assets for the purposes of gathering
information about the Purchased Assets and of discussing employment
opportunities with Buyer.
5.2 Restrictions in Operation of the Business. Seller represents and
covenants that during the period from the date of this Agreement to the Closing
(except as Buyer otherwise has consented or may consent in writing):
(a) The Seller's business will be conducted only in the usual
and ordinary manner insofar as it relates to the Purchased Assets.
(b) Seller will not sell, dispose, transfer, assign or
otherwise remove any of the Purchased Assets except inventory in the
ordinary course of business and at regular prices.
(c) Seller will timely pay and discharge all bills and
monetary obligations and timely and properly perform all of its
obligations and commitments under all existing contracts and agreements
pertaining to the Purchased Assets, except as to amounts or obligations
which Seller contests in good faith.
(d) Seller shall use its best efforts to preserve its business
organization and the Purchased Assets and to keep available to Buyer
the services of Seller's present employees, and not to impair
relationships with suppliers, customers and others having business
relations with the Purchased Assets.
5.3 No Solicitation of Other Offers. Seller agrees that, prior to the
Closing Date or the termination of this Agreement pursuant to Section 6.3,
neither Seller nor any of Seller's representatives will enter into any
negotiations with or solicit any offer, inquiry or proposal from any other
person with respect to the sale or other acquisition of the Purchased Assets.
5.4 Confidentiality Agreement.
(a) Definition of Confidential Information. For purposes of
this Section, "Confidential Information" means any information or
compilation of information not generally known, which is proprietary to
a business, and includes, without limitation, trade secrets,
inventions, and information pertaining to development, marketing,
sales, accounting and licensing of the business' products and services,
customer information,
customer lists, and any customer information contained in customer
records, working papers or correspondence files and all financial
information, including financial statements, notes thereto and
information contained in federal and state tax returns. Information
shall be treated as Confidential Information irrespective of its source
and all information which is identified as being "confidential", "trade
secret", or is identified or marked with any similar reference shall be
presumed to be Confidential Information.
(b) Covenants by Parties. Buyer, on the one hand, and Seller,
on the other, each agree and covenant with respect to all Confidential
Information of the other received or learned by either of them as
follows:
(i) It will treat as confidential all Confidential
Information made available to it or any of its employees,
agents or representatives;
(ii) It will maintain the same in a secure place and
limit access to the Confidential Information to those
employees, agents and representatives to whom it is necessary
to disclose the Confidential Information in furtherance of the
transactions contemplated by this Agreement;
(iii) It and its employees, agents and
representatives will not copy any Confidential Information,
disclose any Confidential Information to any unauthorized
party, or use any Confidential Information for any purpose
including competition with the other party or solicitation of
the other party's customers; and
(iv) It will take reasonable steps to insure that its
employees, agents or representatives who have access to
Confidential Information will maintain the confidentiality of
such information.
(c) Applicability; Limitations.
(i) The obligations imposed by this Section shall
apply (x) to Buyer forever with respect to any Confidential
Information relating to the business or operations of Seller
other than the Purchased Assets, and until the Closing with
respect to the Purchased Assets or, if such Closing does not
occur, forever with respect to the Purchased Assets, and (y)
to Seller forever with respect to the operations of Buyer and
forever with respect to the Purchased Assets after the Closing
except in connection with actions expressly provided or
permitted to Seller herein; provided, however, that the
obligations imposed by this Section 5.4 shall not apply to any
Confidential Information:
(aa) which was known to the receiving party
prior to receipt from the disclosing party;
(bb) which was publicly divulged prior to
receipt from the disclosing party;
(cc) which, through no act on the part of
the receiving party, thereafter becomes publicly
divulged;
(dd) which was received in good faith by the
receiving party from any third party without breach
of any obligations of confidentiality; or
(ee) which was independently developed
(without access to or use of any Confidential
Information of the other party) by an employee or
agent of the receiving party subsequent to receipt of
the Confidential Information under this Agreement.
(ii) The obligations imposed by this Section 5.4 on
Seller shall not apply to the Comdial Corporation "Quick Q"
call center product, including enhancements, upgrades,
modifications and improvements thereto or derivatives thereof,
and including replacement products developed by Comdial
Corporation.
(d) Injunctive Relief. The parties agree that the
non-breaching party would not have an adequate remedy at law for any
breach or nonperformance of the terms of this Section 5.4 by the other
party or any of its employees, agents and representatives and that this
Agreement, therefore, may be enforced in equity by specific
performance, temporary restraining order and/or injunction. The
non-breaching party's right to such equitable remedies shall be in
addition to all other rights and remedies which the non-breaching party
may have hereunder or under applicable law, including a right to
damages.
(e) Unconditional Obligation. The obligations set forth in
this Section 5.4 to maintain the confidentiality of and not wrongfully
use the Confidential Information are unconditional and shall not be
excused by any conduct on the part of a party except as specifically
set forth in Section 5.4(c).
5.5 Offer of Employment. During the period prior to the Closing, Buyer
may negotiate with and offer employment to current employees of Seller. In the
event that any current employee of Seller accepts employment with Buyer on terms
reasonably satisfactory to Buyer, then and in that event Seller will pay Buyer
at Closing the amount of Seller Assisted Signing Bonus designated for such
employee on Exhibit 5.5. In the event an employee who receives payment of a
Seller Assisted Signing Bonus terminates employment with Buyer within four (4)
months after the Closing Date, Buyer will promptly reimburse Seller a pro rata
portion of that employee's Seller Assisted Signing Bonus, determined by
multiplying the amount thereof by a fraction, the numerator of which is the
number of whole and partial months remaining to a date four (4) months after the
Closing Date, and the denominator of which is four (4). Seller will terminate
the employment of any employee hired by Buyer and the employment of such
employee by Buyer shall be a new employment relationship. Notwithstanding the
foregoing or any other provision of this Agreement, Seller acknowledges and
agrees that Buyer has no obligation to employ any current employees of Seller
and that Seller will be solely responsible
for any vacation pay and any other obligations to such employees arising out of
their employment with Seller.
5.6 Cash Payment. Seller will pay to Buyer at the Closing Twenty
Thousand Dollars ($20,000) to assist the Buyer in effecting a transfer of the
FastCall Products from Seller to Buyer.
ARTICLE 6.
CONDITIONS OF CLOSING; ABANDONMENT OF TRANSACTION
6.1 Conditions to Obligations of Buyer to Proceed on the Closing Date.
The obligations of Buyer to proceed on the Closing Date shall be subject (at its
discretion) to the satisfaction, on or prior to the Closing, of all of the
following conditions:
(a) Truth of Representations and Warranties and Compliance
with Obligations. The representations and warranties of Seller herein
shall be true in all material respects on the Closing Date with the
same effect as though made at such time. Seller shall have performed
all material obligations and complied with all material covenants and
conditions prior to or as of the Closing Date.
(b) Opinion of Counsel. Buyer shall have received a duly
executed opinion letter from Seller's legal counsel dated as of the
Closing Date, in form and substance reasonably satisfactory to Buyer
and its counsel, to the effect that:
(i) Seller is a corporation duly organized and
validly existing and in good standing in the State of
Delaware; has all necessary corporate power to own its
properties and assets and to conduct its business as it is now
conducted; and is qualified to do business in all states in
which qualification is required by the nature of the its
business and where the failure to so qualify would have a
material adverse effect on the Purchased Assets;
(ii) This Agreement and all collateral documents have
been duly and validly authorized, executed and delivered by
Seller, constitute the valid and binding obligations of Seller
and are enforceable in accordance with their terms, except as
limited by bankruptcy and insolvency laws and by other laws
affecting the rights of creditors generally;
(iii) To the best of such counsel's knowledge, after
reasonable inquiry, no suit, action, arbitration, legal or
administrative proceeding is pending against the Purchased
Assets; and
(iv) Neither the execution nor delivery of this
Agreement, nor the consummation of the transactions
contemplated in this Agreement, will constitute a violation of
Seller's Certificate of Incorporation or Bylaws, or, to the
best of
such counsel's knowledge, a default under, or violation or
breach of, any material agreement listed on an Exhibit to this
Agreement.
In giving such opinion, such counsel may rely, as to matters
of fact, upon certificates of officers of Seller or public officials,
and as to matters of law solely upon the laws of the State of Delaware.
(c) Required Consents. All required consents shall have been
received from governmental agencies whose approval is required to
consummate the transaction contemplated herein and from each person or
entity listed on Exhibit 3.14.
(d) Delivery of Documents. Seller shall have executed and
delivered to Buyer documents assigning all of its right, title and
interest in and to the Purchased Assets; and Seller shall have
delivered all documents required to be delivered at Closing pursuant to
Section 7.2 hereof.
(e) Litigation Affecting Closing. No suit, action or other
proceeding shall be pending or threatened by or before any court or
governmental agency in which it is sought to restrain or prohibit or to
obtain damages or other relief in connection with this Agreement or the
consummation of the transaction contemplated by this Agreement, and no
investigation that may result in any such suit, action or other
proceeding shall be pending or threatened.
(f) Legislation. No statute, rule, regulation or order shall
have been enacted, entered or deemed applicable by any domestic or
foreign government or governmental or administrative agency or court
which would make the transaction contemplated by this Agreement illegal
or otherwise materially adversely affect the Purchased Assets or their
use and operation in the hands of Buyer.
(g) Review of Records of the Business. Buyer shall have had
the opportunity prior to the Closing Date to review the business
records of the Seller relating to the Purchased Assets and to take such
other actions as specified in Section 5.1. Buyer shall not have
discovered during such review any substantial liabilities relating to
the Purchased Assets which were not previously disclosed to Buyer in
the this Agreement (including its Exhibits) or otherwise by Seller.
6.2 Conditions to Obligation of Seller to Proceed on the Closing Date.
The obligation of Seller to proceed on the Closing Date shall be subject (at its
discretion) to the satisfaction, on or before the Closing, of the following
conditions:
(a) Truth of Representations and Warranties and Compliance
with Obligations. The representations and warranties of Buyer herein
contained shall be true in all material respects on the Closing Date
with the same effect as though made at such time. Buyer shall have
performed all material obligations and complied with all material
covenants and conditions prior to or as of the Closing Date.
(b) Opinion of Counsel. Seller shall have received a duly
executed opinion letter from Buyer's legal counsel dated as of the
Closing Date, in form and substance reasonably satisfactory to Seller
and its counsel, to the effect that:
(i) Buyer is a corporation duly organized and validly
existing and in good standing in the State of Minnesota and
has all necessary corporate power to own its properties and
assets and to conduct its business as it is now conducted;
(ii) This Agreement and all collateral documents have
been duly and validly authorized, executed and delivered by
Buyer, constitute the valid and binding obligations of Buyer,
and are enforceable in accordance with their terms, except as
limited by bankruptcy and insolvency laws and by other laws
affecting the rights of creditors generally;
(iii) To the best of such counsel's knowledge, after
reasonable inquiry, no suit, action, arbitration, legal or
administrative proceeding, or any governmental investigation,
is pending or threatened against Buyer, or any of their
businesses or properties; and
(iv) Neither the execution nor delivery of this
Agreement, nor the consummation of the transactions
contemplated in this Agreement, will constitute a violation of
the Articles of Incorporation or Bylaws of Buyer, or, to the
best of such counsel's knowledge, after reasonable inquiry, a
default under, or violation or breach of, any indenture,
license, lease, mortgage, instrument, or other agreement to
which Buyer is a party, or by which its properties may be
bound.
In giving such opinion, such counsel may rely, as to matters of fact,
upon certificates of officers of Buyer or public officials.
(c) Delivery of Documents. Buyer shall have delivered all
documents required to be delivered at Closing pursuant to Section 7.3
hereof.
(d) Litigation Affecting Closing. No suit, action or other
proceeding shall be pending or threatened by or before any court or
governmental agency in which it is sought to restrain or prohibit or to
obtain damages or other relief in connection with this Agreement or the
consummation of the transaction contemplated by this Agreement, and no
investigation that might eventuate in any such suit, action or other
proceeding shall be pending or threatened.
(e) Legislation. No statute, rule, regulation or other shall
have been enacted, entered or deemed applicable by any domestic or
foreign government or governmental or administrative agency or court
which would make the transaction contemplated by this Agreement
illegal.
6.3 Termination of Agreement. This Agreement and the transactions
contemplated herein may be terminated at or prior to the Closing Date as
follows:
(a) By mutual written consent of all parties.
(b) By Buyer pursuant to written notice delivered at or prior
to the Closing if Seller has failed in any material respect to satisfy
all of the conditions to Closing set forth in Section 6. 1.
(c) By Seller pursuant to written notice delivered at or prior
to the Closing if Buyer has failed in any material respect to satisfy
the conditions set forth in Section 6.2.
6.4 Consequences of Termination. In the event of termination of this
Agreement, each party will return to the other all documents and materials
obtained from the other in connection with the transaction contemplated by this
Agreement and will not use and will keep confidential all Confidential
Information about the other party obtained pursuant to this Agreement pursuant
to the terms of Section 5.4 hereof.
ARTICLE 7.
CLOSING
7.1 Closing. The closing of the transaction contemplated by this
Agreement ("Closing") shall be held at [the offices of Buyer] on December 31,
1997, at 1:00 p.m., or at such other date or time as the parties may mutually
agree upon in writing. Such date of Closing is referred to herein as the Closing
Date.
7.2 Documents to be Delivered by Seller. Seller agrees to deliver the
following documents, duly executed as appropriate, to Buyer at the Closing:
(a) Certified copies of corporate resolutions of Seller
authorizing it to enter into this Agreement and to consummate the
transactions contemplated herein.
(b) A Xxxx of Sale for the assignment and transfer of the
Purchased Assets.
(c) Appropriate assignment documents assigning Seller's title
and interest in and to the Purchased Assets.
(d) Opinion of Seller's Counsel as required under Section
6.1(b).
(e) Documentation of receipt of consents from all persons
listed on Exhibit 3.14, except as waived by Buyer.
(f) Copies in hardcopy and machine readable code of all
software comprising the FastCall Products, and the Computer Programs.
(g) Such other documents as Buyer may reasonably request for
the purpose of assigning, transferring, granting, conveying, and
confirming to Buyer or reducing to its possession all of the Purchased
Assets.
7.3 Documents Delivered by Buyer. Buyer agrees to deliver the following
documents, duly executed as appropriate, to Seller at the Closing:
(a) Certified copies of corporate resolutions of Buyer
authorizing it to enter into this Agreement and to consummate the
transactions contemplated herein.
(b) Wire transfer of the net amount of funds described in
Section 2.2(a).
(c) Royalty-free non-exclusive License for Seller to use the
Patents.
(d) Opinion of Buyer's counsel as required under Section
6.2(b).
(e) An assumption of the obligations identified in Exhibit
1.1(f) and 1.1(g).
(f) Such other documents as Seller reasonably may request to
carry out the transactions contemplated under this Agreement.
ARTICLE 8.
POST CLOSING OBLIGATIONS
8.1 Covenant Not to Compete. Seller and Comdial Corporation ("Comdial")
covenant and agree (the "Covenant Not to Compete") that from and after the
Closing, without the prior written consent of Buyer, neither Seller nor Comdial
(for itself and its controlled subsidiaries) will develop, market or sell
desktop-based screen pop products in competition with the Royalty Products sold
for use as middleware in connection with telephone systems including key
systems, private branch exchanges (PBX's) and automatic call distribution
(ACD's) ("Protected Products") by the Buyer, in accordance with and subject to
the following provisions:
(a) The term "Protected Products" shall not include products
used in connection with telephone systems including key systems, PBX's
and ACD's sold by Comdial or its subsidiaries, or marketed under the
Comdial' name.
(b) The term "Protected Products" shall not include visual
call products developed, marketed or sold by Key Voice Technologies,
Inc., a subsidiary of Comdial, or by any other subsidiary of Comdial,
such as the Key Voice Visual Call management products and their
derivatives or replacements.
(c) The Covenant Not to Compete shall expire five (5) years
after the Closing Date.
8.2 Further Documents and Assurances. At any time and from time to time
after the Closing Date, each party shall, upon request of another party,
execute, acknowledge and deliver all such further and other assurances and
documents, and will take such action consistent with the terms of this
Agreement, as may be reasonably requested to carry out the transactions
contemplated herein and to permit each party to enjoy its rights and benefits
hereunder. If requested by Buyer, each of Seller and Comdial further agree to
prosecute or otherwise enforce in its own name for the benefit of Buyer any
claim, right or benefit transferred by this Agreement that may require
prosecution or enforcement in Seller's or Comdial's name. Any prosecution or
enforcement of claims, rights, or benefits under this provision shall be solely
at Buyer's expense, unless the prosecution or enforcement is made necessary by a
breach of this Agreement on the part of Seller or Comdial.
8.3 Consulting. For a period of ninety (90) days after the Closing Date
Seller or Comdial will make available to Buyer up to fifty (50) hours of
consulting services each from Xxxx X. Xxxxxxxx and, to the extent she does not
become an employee of Buyer, Xxxxxx Xxxxxx. Such consulting services shall be at
no cost to Buyer, except that Buyer will be responsible for any necessary travel
expenses incurred at Buyer's request. Notwithstanding the foregoing, the
obligation of Seller and Comdial to provide consulting services from Xxxx X.
Xxxxxxxx and Xxxxxx Xxxxxx shall be contingent upon their continued employment,
respectively, with Seller or Comdial.
8.4 Accounts Receivable. Seller shall use its normal business efforts
to collect tie Ss Accounts Receivable for the benefit of Buyer, and remit to
Buyer all payments received thereon as and when collected. The Seller shall not
be obligated to institute legal proceedings to collect the Excess Accounts
Receivable. At any time at the written request of Buyer, and on March 31, 1998
in any event, Seller will assign the uncollected Excess Accounts Receivable to
Buyer and Seller shall have no further obligation to Buyer with respect thereto.
8.5 Un-Invoiced Sales. Buyer may invoice customers for amounts owing to
Seller on account of the Un-Invoiced Sales and may collect the same. Seller
shall have no obligation to Buyer with respect thereto.
8.6 Fleet Capital Corporation Releases. Within 20 days after the
Closing Date, Seller and its parent company, Comdial Corporation, agree to
obtain releases of the Fleet Liens against the Purchased Assets as set forth on
Exhibit 3.5 hereto, including, but not limited to, partial releases for the
original financing statements filed by Fleet Capital Corporation against Seller
in Massachusetts and Virginia as well as a partial release of the Security
Agreement-Intellectual Property to release the patents, trademarks and
copyrights identified on Exhibits 1.1(a) and 1.1(b) of this Agreement. Such
releases shall be in recordable form and otherwise reasonably acceptable to
Purchaser.
ARTICLE 9.
INDEMNIFICATION
9.1 Indemnification by Seller. Subject to the limitations set forth in
Section 9.2, Seller and Comdial shall indemnify and hold Buyer harmless at all
times from and after the date of this Agreement against and in respect of all
damages, losses, costs and expenses (including reasonable attorneys' fees) which
Buyer may suffer or incur in connection with any of the following matters:
(a) Any claim, demand, action or proceeding asserted by a
creditor of Seller under the provisions of any applicable Bulk Transfer
Act or asserted by any other person respecting any liabilities of
Seller which are not expressly assumed by Buyer under this Agreement.
(b) A material breach by Seller of any of its representations,
warranties or covenants in this Agreement.
9.2 Seller's Limitation of Liability.
(a) Buyer shall assert any claim under Section 9.1(b) within
twelve (12) months from the Closing Date or be forever barred from
asserting such claim.
(b) The rights of Buyer with respect to any claims arising
under Section 9.1 shall be limited to recovery of actual losses, costs
and expenses (including reasonable attorneys' fees). Buyer hereby
waives any remedy or right of rescission arising on the basis of such
claims.
9.3 Indemnification by Buyer. Buyer shall indemnify and hold Seller and
Comdial harmless at all times from and after the date of this Agreement, against
and in respect of all losses, damages, costs and expenses (including reasonable
attorneys' fees) which Seller or Comdial may suffer or incur in connection with
any of the following matters:
(a) A material breach by Buyer of any representations,
warranties or covenants in this Agreement.
(b) Any claim, demand, action or proceeding asserted by any
person against Seller or Comdial or any of its subsidiaries relating to
any obligation or liability imposed on or assumed by Buyer hereunder or
to any obligation or liability relating to the Royalty Products
incurred after the Closing.
9.4 Buyer's Limitation of Liability.
(a) Seller or Comdial shall assert any such claim under
Section 9.2(a) within twelve (12) months of the Closing Date or be
forever barred from asserting such claim.
(b) The rights of Seller or Comdial with respect to any claims
arising under Section 9.3 shall be limited to recovery of actual
losses, costs and expenses (including reasonable attorney's fees).
Seller and Comdial hereby waive any remedy or right of recision arising
on the basis of such claims.
9.5 Limitations on Indemnification. Notwithstanding the foregoing
provisions of this Article, neither Seller nor Comdial shall be liable to Buyer
under Section 9.1 unless and until the aggregate amount of liability under such
Section exceeds [$17,5001], and thereafter Buyer shall be entitled to
indemnification thereunder only for the aggregate amount of such liability in
excess of [$17,500]. Buyer shall not be liable to Seller or Comdial under
Section 9.3 unless and until the aggregate amount of liability under such
Section exceeds [$17,500], and thereafter Seller and Comdial shall be entitled
to indemnification thereunder only for the aggregate amount of such liability in
excess of [$17,500]. In no event shall either Buyer's liability or Seller's or
Comdial's liability under Sections 9.1 and 9.3 exceed the Purchase Price.
9.6 Third Party Claims. If a claim by a third party is made against any
of the indemnified parties, and if any of the indemnified parties intends to
seek indemnity with respect to such claim under this Article, such indemnified
party shall promptly notify the indemnifying party of such claim. The
indemnifying party shall have thirty (30) days after receipt of the
above-mentioned notice to undertake, conduct and control, through counsel of
such party's own choosing (subject to the consent of the indemnified party, such
consent not to be unreasonably withheld) and at such party's expense, the
settlement or defense of it, and the indemnified party shall cooperate with the
indemnifying party in connection with such efforts; provided that: (i) tie
indemnifying party shall not by this Agreement permit to exist any lien,
encumbrance or other adverse charge upon any asset of any indemnified party,
(ii) the indemnifying party shall permit the indemnified party to participate in
such settlement or defense through counsel chosen by the indemnified party,
provided that the fees and expenses of such counsel shall be borne by the
indemnified party, and (iii) the indemnifying party shall agree promptly to
reimburse the indemnified party for the full amount of any loss resulting from
such claim and all related expense incurred by the indemnified party pursuant to
this Article. So long as the indemnifying party is reasonably contesting any
such claim in good faith, the indemnified party shall not pay or settle any such
claim. If the indemnifying party does not notify the indemnified party within
thirty (30) days after receipt of the indemnified party's notice of a claim of
indemnity under this Article that such party elects to undertake the defense of
such claim, the indemnified party shall have the right to contest, settle or
compromise the claim in the exercise of the indemnified party's exclusive
discretion at the expense of the indemnifying party.
ARTICLE 10.
GENERAL
10.1 Assignment. This Agreement may be assigned by the Buyer, and the
Royalty Products sold or transferred by the Buyer, without the prior written
consent of Seller only on the following terms:
(a) The Buyer shall pay to Seller the amount, if any, by which
the Minimum Purchase Price exceeds the Total Payment Amount as of the
date of such assignment, sale or transfer; and
(b) The assignee of or purchaser from the Buyer agrees in
writing and for the benefit of Seller to be bound by the terms of this
Agreement to the same extent as the Buyer, and Buyer furnishes Seller
with an appropriate written agreement to this effect duly signed and
delivered by such assignee or purchaser.
10.2 Counterparts. This Agreement may be executed in counterparts and
by different parties on different counterparts with the same effect as if the
signatures thereto were on the same instrument. This Agreement shall be
effective and binding upon all parties hereto as of when all parties have
executed a counterpart of this Agreement.
10.3 Exhibits. Each Exhibit delivered pursuant to the terms of this
Agreement shall be in writing and shall constitute a part of this Agreement.
10.4 Notices. Any notice or other communication required or permitted
hereunder shall be in writing and shall be deemed to have been given, when
received, if delivered by hand, telegram, telex or telecopy, and, when
deposited, if placed in the mails for delivery by air mail, postage prepaid,
addressed to the appropriate party as specified on the first page of this
Agreement. Addresses may be changed by written notice given pursuant to this
section, provided that any such notice shall not be effective, if mailed, until
three (3) working days after depositing in the mails or when actually received,
whichever occurs first.
10.5 Successors and Assigns. Neither Seller nor Buyer shall assign or
transfer any of its rights or obligations hereunder without the prior written
consent of the other party which consent shall not be unreasonably withheld.
10.6 Expenses. Except as otherwise provided herein, each party hereto
shall bear and pay for its own costs and expenses incurred by it or on its
behalf in connection with the transactions contemplated hereby, including,
without limitation, all fees and disbursements of attorneys, accountants and
financial consultants incurred through the Closing Date.
10.7 Entire Agreement. This Agreement, together with the Exhibits and
the related written agreements specifically referred to herein, represents the
only agreement among the
parties concerning the subject matter hereof and supersedes all prior agreements
whether written or oral, relating thereto.
10.8 Modification and Waiver. No purported amendment, modification or
waiver of any provision hereof shall be binding unless set forth in a written
document signed by all parties (in the case of amendments or modifications) or
by the party to be charged thereby (in the case of waivers). Any waiver shall be
limited to the circumstance or event specifically referenced in the written
waiver document and shall not be deemed a waiver of any other term hereof or of
the same circumstance or event upon any recurrence thereof.
10.9 Publicity. Seller and Buyer each represent and warrant that it
will make no announcement to public officials or the press `in any way relating
to the transaction described herein without the prior written consent of all
parties.
10.10 Governing Law. This Agreement and the legal relations between the
parties shall be governed by and construed in accordance with the laws of the
State of Minnesota.
10.11 Knowledge. Knowledge, as used in this Agreement or the
instruments, certificates or other documents required under this Agreement,
means actual knowledge of a fact or constructive knowledge if a reasonably
prudent person in a like position would have known, or should have known, the
fact.
10.12 Benefit. Nothing in this Agreement, expressed or implied, is
intended to confer on any person other than the parties to this Agreement or
their permitted successors or assigns, any rights, remedies, obligations or
liabilities under or by reason of this Agreement.
10.13 Comdial Corporation. Comdial executes this Agreement for the sole
purposes of (a) evidencing its obligations expressly set forth in Articles 8 and
9 hereof, (b) confirming that the financial information attached hereto as
Exhibit 3.3 is true and correct, and (c) confirming that it has accurately
prepared and timely filed the tax returns described in Section 3.4, and has paid
the taxes due thereon except as disclosed in Exhibit 3.4.
IN WITNESS WHEREOF, each of the parties hereto has caused this FastCall
Purchase Agreement to be executed in the manner appropriate to each, to be
effective as of the day and year first above written.
SPANLINK COMMUNICATIONS, INC. ("BUYER")
By /s/ X. X. Xxxxxx
Its Chief Financial Officer
AURORA SYSTEMS, INC. ("Seller")
By /s/ Xxxxx X. Xxxxxxxx
Its Assistant Secretary
COMDIAL CORPORATION
By /s/ Xxxxx X. Xxxxxxxx
Its Assistant Secretary
