ACQUISITION AGREEMENT
THIS ACQUISITION AGREEMENT (this "Agreement"), dated September 22,
1999, is by and between Zirca Corporation, a Texas corporation (
"Seller"), and uniView Technologies Advanced Systems Group, Inc. a Texas
corporation ("Buyer"). Interphase Corporation, a Texas corporation
("Interphase") and uniView Technologies Corporation, a Texas corporation
("uniView"), join in this Agreement to the extent and for the purposes
stated herein.
RECITALS. Buyer desires to acquire properties and assets of
Seller, as described on Exhibit A hereto, from Seller, and Seller agrees
to sell such properties and assets to Buyer, on the terms and conditions
set forth herein.
In consideration of the premises and the foregoing, the terms
hereof, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, hereby covenant and agree as follows:
ARTICLE 1 - DEFINITIONS
1.1 Defined Terms . In addition to terms defined elsewhere in this
Agreement, the following terms shall have the meanings assigned to them
herein, unless the context otherwise indicates, both for purposes of
this Agreement and all Exhibits and Schedules referenced herein:
"Affiliate" shall mean, as to a Person, any other Person
controlling, controlled by, or under common control with such first
Person. As used in this definition, the term "control" shall mean the
power, directly or indirectly, to vote more than fifty percent (50%) of
the outstanding voting stock of a corporation or more than fifty percent
(50%) of the equity of an unincorporated entity, or the right, directly
or indirectly, to designate a majority of the directors of a Person (in
the case of a corporation) or the person(s) exercising similar functions
(in the case of an unincorporated Person).
"Assets" shall mean the properties and assets listed or described
on Exhibit A attached hereto and shall include Software, Trademark,
Patent Rights and Copyrights, as hereinafter defined.
"Assigned Contracts" shall mean those contracts, commitments and
obligations described in Exhibit B attached hereto.
"Assumed Liabilities" shall mean (i) those liabilities and
obligations of Seller listed on Exhibit C attached hereto and (ii) the
future performance of the Assigned Contracts.
"Business" shall mean Seller's web-based pre-paid calling card and
transaction processing business.
"Closing" shall mean (i) the transfer of the Assets by Seller to
Buyer, and the transfer by Buyer and uniView to Seller of the Purchase
Price, and (ii) the consummation of the other Transactions contemplated
to take place on the Closing Date.
"Copyrights" shall mean, to the extent existing, all of Seller's
copyrights (all of which are unregistered) and all information,
descriptive material, computer programs, sales bulletins, catalogs,
product literature, advertising materials, customer lists, prospect
lists, outstanding quotations, sales leads, and such other documents
related to the Software and the Business as may be of assistance to
Buyer connection with the promotion of sales of the Software, whether or
not copyrighted or copyrightable.
"IRS" shall mean the Internal Revenue Service.
"Law" or "Laws" shall mean any and all applicable statutes, laws,
ordinances, proclamations, regulations, published requirements, orders,
decrees and rules of any foreign, federal, state or local government,
political subdivision or governmental or regulatory authority, agency,
board, bureau, commission, instrumentality or court or quasi-
governmental authority, including, without limitation, those covering
environmental, tax, energy, safety, health, transportation, bribery,
record keeping, zoning, discrimination, antitrust and wage and hour
matters, and in each case as amended and in effect from time to time.
"Lien" shall mean any lien, pledge, security interest, mortgage or
other similar encumbrance.
"Material Adverse Effect" shall mean a material adverse effect on
the Assets, or on the business, operations or condition (financial or
otherwise) of the Business.
"Patent Rights" shall mean, to the extent existing, all concepts,
ideas, inventions, trade secrets, know-how (whether patentable or not)
related to the Software.
"Person" shall mean an individual, an entity, a government, a
political subdivision of a government or a government agency.
"Retained Liabilities" shall mean any and all debts, liabilities or
obligations of Seller arising from events, transactions or occurrences
with respect to the period before the Closing (other than the Assumed
Liabilities).
"Software" shall mean, to the extent existing, all of Seller's
drawings, sketches, diagrams, specifications, engineering records,
engineering notes and notebooks, operating instructions, know-how, data,
technology, methodology, and other physical and written descriptions and
embodiments, including application code, to internally developed
software related to the Business and reflected on Exhibit A, which
Seller has designed and tested;
"Sublease" shall mean that certain Sublease Agreement in the form
attached as Exhibit D to be executed by uniView and Interphase at the
Closing.
"Transactions" shall mean the transactions contemplated by this
Agreement.
"Trademark" shall mean the "Zirca" trademark.
ARTICLE 2 - PURCHASE AND SALE OF ASSETS
2.1 Asset Acquisition. Subject to the terms and conditions set
forth in this Agreement, at the Closing Seller shall sell, assign,
transfer, convey and deliver or cause to be delivered to Buyer, and
Buyer shall purchase and acquire from Seller, all right, title and
interest of Seller in and to the Assets, including the Software,
Trademark, Patent Rights and Copyrights, free and clear of all Liens
(other than the Assumed Liabilities). Seller agrees to promptly execute
and deliver all papers and perform such other acts which are reasonably
necessary to transfer to Buyer or perfect in Buyer the rights, title and
interest hereby conveyed, including separate assignments where
necessary, all of the same being in form and substance reasonably
satisfactory to counsel for Seller and Buyer.
2.2 Assumed Liabilities; Retained Liabilities.
(a) At the Closing, Buyer will assume, and shall pay, perform
and/or discharge as and when due, the Assumed Liabilities, including,
but not limited to, future performance of the Assigned Contracts.
(b) Notwithstanding anything herein to the contrary, Buyer
shall not assume, become liable for, or agree to pay, perform or
discharge the Retained Liabilities.
2.3 Purchase Price. Subject to the terms and conditions of this
Agreement and as consideration for the sale and transfer of the Assets
to Buyer, Buyer shall pay to Seller cash and uniView shall deliver
Common Stock to Seller as follows (the "Purchase Price"):
(a) At Closing, Buyer shall pay to Seller Three Hundred
Thousand Dollars ($300,000.00) cash; and
(b) In partial consideration for the sale and transfer of the
Assets, Software, Trademark, Patent Rights and Copyrights, uniView shall
cause to be issued and shall deliver to Seller within three (3) days
after the expiration of the fifteen (15) day notice period required by
NASDAQ, but in no event later than thirty (30) days after the Closing
Date, an original stock certificate representing Three Hundred Sixty
Thousand (360,000) shares of $0.10 par value of Common Stock of uniView
(the "Shares"). The number of Shares to be issued has been determined
by dividing Six Hundred Seventy Five Thousand ($675,000.00) by the
closing last trade price of uniView's Common Stock as of September 15,
1999 reported by NASDAQ reporting system which price uniView and Seller
agree to be One and 875/1000 ($1.875). uniView represents and warrants
that the issuance of the Shares has been authorized by all necessary
action, corporate or otherwise, and that upon delivery of the stock
certificates representing the Shares, the Shares shall be validly
issued, fully paid, and non-assessable.
Seller represents that it is acquiring the Shares for its own
account for investment purposes only and not with a view towards
distribution. Seller understands and agrees that it must bear the
economic risks of the Shares for an indefinite period of time. Except
as expressly set forth above, no representations or warranties have been
made to Seller by uniView, the officers or directors of uniView, or any
agent, employee or affiliate of any of them regarding uniView. Seller
has conducted whatever investigations and due diligence activities it
deems appropriate in connection with its acquisition of the Shares.
Seller understands that no federal or state governmental authority has
made any finding or determination relating to the fairness of an
investment in the Shares and that no federal or state governmental
authority has recommended or endorsed, or will recommend or endorse, the
Shares. Seller, in making the decision to acquire the Shares, has
relied upon independent investigation made by it and has not relied on
any information or representations made by third parties. Seller
understands that the Shares have not been registered under the
Securities Act or under state securities laws and therefore it cannot
dispose of any or all of the Shares unless and until such Shares are
subsequently registered under the Securities Act and applicable state
securities laws or exemptions from such registration are available.
Seller acknowledges that a legend substantially as follows will be
placed on the certificates representing the Shares.
THE SECURITIES HAVE NOT BEEN REGISTERED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED
(THE SECURITIES ACT) ), AND MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (1)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, OR (2)
PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED
BY RULE 144 OR OTHER EXEMPTION UNDER THE SECURITIES
ACT (IF AVAILABLE), AND IN EACH CASE IN ACCORDANCE
WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES OR OTHER JURISDICTION.
2.4 The Closing .
(a) The Closing shall be held at the offices of Interphase,
00000 Xxxxxx Xxxxx, Xxxxxxx Xxxxxx, Xxxxx 00000, at 10:00 a.m., Dallas
time, on September 27, 1999, or such other date and at such other place
as the parties shall agree to in writing (the "Closing Date"). Title
to, ownership of, control over, and risk of loss of, the Assets shall
pass to Buyer at the Closing.
(b) No action taken at the Closing with respect to the
consummation of the Transactions shall be deemed to have been taken
until such time as the last of any such actions is taken or completed.
(c) At or before the Closing, each party shall cause to be
prepared, and at the Closing the parties shall execute, deliver and
file, each document, agreement and instrument required or contemplated
by this Agreement to be so executed, delivered and filed in connection
with the Transactions and which have not been theretofore accomplished.
The documents of transfer ("Transfer Documents") shall include the
General Xxxx of Sale and Assignment in the form of Exhibit E, the
Sublease, and other agreements and instruments of transfer, conveyance,
assignment and assumption appropriate and customary for the purpose of
consummating the Transactions.
2.5 Purchase Price Allocation . Seller and Buyer hereby agree
that, for all accounting and foreign, federal, state and local tax
reporting purposes, the Purchase Price shall be allocated in accordance
with the Allocation Schedule (herein so-called) attached hereto as
Exhibit F, including without limitation in connection with the
preparation and filing of any required forms with the IRS so that the
information reflected on such forms shall be consistent.
ARTICLE 3 - REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as follows:
3.1 Existence and Good Standing . Seller is a corporation duly
organized, validly existing and in good standing under Texas Laws.
Seller has full corporate power and authority to carry on the Business
as it is now being conducted, to own and operate its assets, properties
and business, to enter into and to perform this Agreement and to sell,
transfer and convey the Assets to Buyer.
3.2 Capitalization . Interphase owns all of the issued and
outstanding shares of capital stock of Seller.
3.3 Authorization; Validity of Agreement . The execution,
delivery and performance by Seller of this Agreement, the Transfer
Documents and each of the other agreements and instruments contemplated
hereby to which Seller is, or is to be, a party have been duly
authorized and approved by the Board of Directors of Seller and by
Interphase, as the sole shareholder of Seller, and no further corporate
action on the part of Seller is necessary to fully authorize such
execution, delivery and performance. This Agreement, the Transfer
Documents and each of the other agreements and instruments contemplated
hereby to which Seller is, or is to be, a party, have been, or when
executed will be, duly executed and delivered by Seller and are the
legal, valid and binding obligations of Seller enforceable against
Seller in accordance with their terms.
3.4 No Conflict with Other Instruments . The execution and
delivery by Seller of this Agreement, the Transfer Documents and the
other agreements and instruments to be executed by Seller hereunder or
thereunder, and the consummation of the transactions contemplated
hereunder or thereunder by Seller will not (a) result in the creation of
any Lien upon any Asset, (b) result in a breach or violation of or
constitute a default under Seller's Articles of Incorporation or Bylaws
or, assuming consent is obtained from those Persons listed on Schedule
3.5, any document or agreement, or (c) violate any Law.
3.5 Consents and Approvals. Except with regard to the software
licenses described in Section 3.6 below or as otherwise set forth on
Schedule 3.5 attached hereto, no authorization, consent, approval,
permit or license of, or filing with, any Person is required to
authorize, or is required in connection with, the execution, delivery
and performance of this Agreement or the agreements contemplated hereby
on the part of Seller.
3.6 Title . Upon consummation of the Transactions, Buyer shall
receive good and unencumbered title to the Assets, free and clear of all
Liens, other than the Liens included within the Assumed Liabilities.
Notwithstanding the foregoing, Seller makes no representations or
warranties as to the transferability of any software licenses pertaining
to any software (e.g. Windows 98), other than the Software, as defined
hereinabove, transferred to Buyer in conjunction with the transfer of
the Assets, and the failure by Seller to obtain the applicable
licensor's consent to the transfer of the software license shall not be
deemed a violation of this Agreement or Seller's obligations hereunder.
3.7 Condition of Assets. The Assets are being transferred and
conveyed in an "AS IS and WHERE IS" condition, and Seller makes no
representations or warranties regarding the Assets or the quality or
condition thereof, except as expressly set for in this Agreement.
3.8 Patents, Trademark and Copyrights . Seller has an
application pending with the United States Patent and Trademark Office
with regard to the Trademark. Seller is the owner of the Patent Rights,
Copyrights, and, to the best of its knowledge, the Trademark, including
all common law, statutory and other rights therein, free and clear of
any rights or claims or licenses of others, and has not entered into any
agreements or contracts authorizing others to use the Patent Rights,
Trademark and Copyrights; (b) to the best of Seller's knowledge, no
person or entity is infringing or has threatened to infringe any of the
Patent Rights, Trademark or Copyrights and Seller has not requested any
person or entity to cease or modify any activity or product or to take
out a license for such activity or product by reason of past, present or
prospective infringement of any Patent Rights, Trademark or Copyrights;
(c) to the best of Seller's knowledge, use of the Trademark, Copyrights
and the use of the Software will not constitute infringement of
another's Trademark, Patent Rights or Copyrights or otherwise constitute
unfair competition or trade secret infringement; (d) there is no pending
or, to the best of Seller's knowledge, threatened litigation related in
any way to the validity, use or enforceability of any of the Trademark,
Patent Rights or Copyrights, and all of the right, title and interest in
and to the Software, Trademark and Copyrights acquired by Buyer under
this Agreement are free and clear of all Liens; (e) subject to
obtaining Landlord's consent to the Sublease, upon execution and
delivery of this Agreement and the documents identified herein, Seller
will have conveyed to Buyer good and unencumbered title to the Assets,
including the Software (but not including the software licenses
pertaining to software other than the Software, as defined herein),
Patents, and Copyrights, and to the best of its knowledge the Trademark,
free and clear of all Liens; (f) Seller has entered into no contracts or
other obligations with respect to the Software except those heretofore
disclosed in writing to Buyer, the benefits of which have been assigned
to Buyer, and Seller has not and will not enter into any agreement or
other obligation which in any way limits or would limit the rights of
Buyer to the Software, Patents, Trademark and Copyrights; (g) this
Agreement and all obligations and undertakings by Seller hereunder are
in compliance with the laws of the State of Texas and all other
applicable laws; and (h) all test results, complaints and other data and
communications known to Seller as of the date of this Agreement,
evidencing any material defect or problem in the Software or with
respect to its design, operation, reliability, or the like, have been
disclosed to Buyer in writing.
3.9 Litigation . There are no suits, actions, claims, inquiries,
investigations by any private or governmental body, legal,
administrative or arbitration proceedings pending or, to the knowledge
of Seller, threatened, against or affecting Seller with respect to the
Business, or affecting Seller or the Assets, or which question the
validity or legality of the Transactions. Seller does not know of any
basis or grounds for any such suit, action, claim, inquiry,
investigation or proceeding which are currently assertable affecting the
Business, Seller or the Assets and which, if determined adversely
against Seller, could reasonably be expected to have a Material Adverse
Effect.
3.10 Brokerage Fees . There are no claims for investment bankers'
fees, brokerage commissions, finders' fees or similar compensation in
connection with the Transactions based on any arrangement or agreement
made by or on behalf of Seller.
ARTICLE 4 - REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Seller as follows:
4.1 Existence and Good Standing . Buyer is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Texas and has all requisite corporate power to enter into and
perform this Agreement.
4.2 Capitalization . uniView owns all of the issued and
outstanding shares of capital stock of Buyer.
4.3 Authorization; Validity of Agreement . The execution,
delivery and performance by Buyer of this Agreement, the Transfer
Documents and each of the other agreements and instruments contemplated
hereby to which Buyer is a party have been duly authorized and approved
by all necessary action by Buyer, and no further corporate action is
necessary on the part of Buyer, to fully authorize such execution,
delivery and performance. This Agreement, the Transfer Documents and
each of the other agreements and instruments contemplated hereby to
which Buyer is, or is to be, a party have been, or when executed will
be, duly executed and delivered by Buyer and are the legal, valid and
binding obligation of Buyer enforceable against Buyer in accordance with
their terms.
4.4 No Conflict With Other Instruments . The execution and
delivery of this Agreement and consummation of the Transactions will not
(a) result in a breach or violation of, constitute a default under, or
result in the creation of any Lien upon any of the properties or assets
of Buyer pursuant to (i) the Certificate of Incorporation or Bylaws of
Buyer, as presently in effect, or (ii) any indenture, mortgage, lease,
loan agreement or other agreement or instrument to which Buyer is a
party or by which it is bound or to which any of the properties of Buyer
are subject or (b) violate any provision of any law, statue, rule,
regulation, judgment or decree, domestic or foreign, applicable to
Buyer.
4.5 Consents and Approvals. No authorization, consent, approval,
permit or license of, or filing with, any Person is required to
authorize, or is required in connection with, the execution, delivery
and performance of this Agreement or the agreements contemplated hereby
on the part of Buyer.
4.6 Brokerage . There are no claims for investment bankers' fees,
brokerage commissions, finders' fees or similar compensation in
connection with the Transactions based on any arrangement or agreement
made by or on behalf of Buyer for which Seller is or may be liable.
ARTICLE 5 - AGREEMENTS AND COVENANTS OF THE PARTIES
Seller and Interphase, on the one hand, and Buyer and uniView, on
the other hand, covenant and agree with each other as follows:
5.1 Sublease. At the Closing, uniView and Interphase shall
execute and deliver the Sublease.
5.2 Registration Rights Agreement. At the Closing, uniView and
Seller shall execute and deliver a Registration Rights Agreement in the
form attached hereto as Exhibit G. The Registration Rights Agreement
provides for, among other things, certain piggy back and demand
securities registration rights in favor of Seller as more fully
described therein.
5.3 Nonsolicitation. Except as specifically provided in Section
5.4 below, Seller and Interphase, on the one hand, and Buyer and
uniView, on the other hand, shall not, during the stated term of the
Sublease, on their own behalf or on behalf of any other Person, hire,
solicit or seek to hire, any employee of either of the other two parties
or their Affiliates or in any other manner attempt directly or
indirectly to influence, induce or encourage any employee of either of
the other two parties or their Affiliates to leave the employment of
such other parties or their Affiliates.
5.4 Hiring of Employees. At Closing, Buyer shall offer to employ
those employees of Seller listed on Schedule 5.4 attached hereto, for a
minimum period of 90 days commencing on the Closing Date, on such terms
and conditions as are agreed upon by Buyer and the applicable employee.
5.5 Restrictions on Seller. The sale herein is exclusive in all
respects and Seller agrees that after the Closing Date, Seller will not,
and will use its best efforts to cause its officers, employees, agents
and Affiliates to not, except as expressly requested by Buyer or
otherwise required to carry out the provisions of this Agreement:
(a) Provide technical information or assistance relating to the
Software to any person or organization other than Buyer or persons
authorized by Buyer to receive such information or assistance; or
(b) Assist any other person or organization in engaging in the
design, development, engineering or sale of the Software; or
(c) Directly or indirectly reveal to anyone or utilize in any way
the Software (i) except as required by this Agreement or (ii) as
expressly requested by Buyer.
5.6 Assignments. At Closing, or as soon thereafter as is
practicable, Seller or Interphase, as applicable, shall assign to Buyer
the Trademark and any other uses of the name "Zirca", including domain
names and assumed names. After the Closing Date, Seller agrees to
change its corporate name and to not use or employ in any manner,
directly or indirectly, the name "Zirca" or any variation thereof.
ARTICLE 6 - MISCELLANEOUS
6.1 Nature of Statements; Survival . Notwithstanding any
investigation heretofore or hereafter made by or on behalf of any of the
parties to this Agreement, the representations and warranties contained
in this Agreement shall survive the Closing for a period of two (2)
years from the Closing Date.
6.2 Indemnity . Seller and Interphase agree to indemnify and hold
harmless Buyer, as well as its officers, directors, agents, attorneys
and Affiliates (collectively, "Buyer's Group"), from and against all
losses, claims, obligations, demands, assessments, penalties,
liabilities, costs, damages, reasonable attorneys' fees and expenses
(collectively "Claims") asserted against or incurred by Buyer's Group by
reason of or resulting from the untruth, breach or failure of any
representation or warranty made by Seller or Interphase under or
contained in this Agreement or in any of the Transfer Documents, or the
breach or failure by Seller or Interphase to perform any of its
covenants, commitments, agreements or obligations under or contained in
this Agreement or in any of the Transfer Documents. Without limiting
the generality of the foregoing, Seller and Interphase agree to
indemnify and hold harmless Buyer from and against any Claims by reason
of or resulting from any occurrence, event or transaction arising out of
or relating to the use, ownership or operation of the Assets prior to
the Closing, except to the extent such Claims relate to the Assumed
Liabilities.
Buyer and uniView agree to indemnify and hold harmless Seller, as
well as its officers, directors, agents, attorneys and Affiliates
(collectively, "Seller's Group"), from and against all losses, claims,
obligations, demands, assessments, penalties, liabilities, costs,
damages, reasonable attorneys' fees and expenses (collectively "Claims")
asserted against or incurred by Seller's Group by reason of or resulting
from the untruth, breach or failure of any representation or warranty
made by Buyer or uniView under or contained in this Agreement or in any
of the Transfer Documents, or the breach or failure by Buyer or uniView
to perform any of its covenants, commitments, agreements or obligations
under or contained in this Agreement or in any of the Transfer
Documents. Without limiting the generality of the foregoing, Buyer and
uniView agree to indemnify and hold harmless Seller from and against any
Claims by reason of or resulting from any occurrence, event or
transaction arising out of or relating to the use, ownership or
operation of the Assets subsequent to the Closing.
6.3 No Third Party Beneficiaries . Except to the extent a third
party is expressly given rights herein, any agreement contained,
expressed or implied in this Agreement shall be only for the benefit of
the parties hereto and their respective legal representatives,
successors, and permitted assigns and such agreements shall not inure to
the benefit of the obligees of any indebtedness of any party hereto, it
being the intention of the parties hereto that no Person or entity shall
be deemed a third party beneficiary of this Agreement, except to the
extent a third party is expressly given rights herein.
6.4 Remedies . In addition to the rights and remedies of the
parties specifically provided for herein, each party hereto shall have
such other remedies as shall be available under applicable law or in
equity for the other party's breach or failure to perform any of its
representations, warranties, covenants, agreements or obligations under
or contained in this Agreement.
6.5 Assignment . Neither party to this Agreement may sell,
transfer, assign, pledge, or hypothecate its rights, interests, or
obligations under this Agreement without the consent of the other party.
Notwithstanding the foregoing, either party hereto may assign this
Agreement, or its rights, interests and obligations hereunder to one or
more Affiliates. Such assignment shall not be deemed to release the
assigning party from this Agreement, and the assigning party shall
remain responsible for the performance of this Agreement by its
assignee.
6.6 Severability. If any provision of this Agreement is held to
be illegal, invalid, or unenforceable under applicable present or future
laws, such provision shall be fully severable, and this Agreement shall
be construed and enforced as if such illegal, invalid, or unenforceable
provision never comprised a part of this Agreement; and the remaining
provisions of this Agreement shall remain in full force and effect and
shall not be affected by the illegal, invalid, or unenforceable
provision or by its severance herefrom. Furthermore, in lieu of such
illegal, invalid, or unenforceable provision, there shall be added
automatically as part of this Agreement, a provision as similar in its
terms to such illegal, invalid, or unenforceable provision as may be
possible and be legal, valid, and enforceable.
6.7 Costs, Expenses, and Legal Fees. If either party hereto
brings an action at law or in equity against the other in order to
enforce the provision of this Agreement, the prevailing party in such
action (whether plaintiff or defendant) shall be entitled to recover
reasonable attorneys' fees and expense for the other. Except as
otherwise expressly provided in the immediately preceding sentence, the
parties hereto shall pay their own expenses separately incurred in
connection with the preparation and review of this Agreement and the
transactions contemplated hereby.
6.8 Waiver. The waiver by either party of any breach or provision
of this Agreement must be in writing. No waiver of any breach or
failure by either party to enforce any of the terms or conditions of
this Agreement at any time shall, in any manner, limit or waive such
party's right thereafter to enforce and to compel strict compliance with
every term and condition hereof. One or more waivers of any breach of
any covenant, term, or provision of this Agreement by any party shall
not be construed as a waiver of a subsequent breach of the same
covenant, term, or provision nor shall it be considered a waiver of any
other then existing or subsequent breach of a different covenant, term,
or provision.
6.9 Notices. Any notice or communication pursuant hereto must be
in writing and given by (a) deposit in the mail, addressed to the party
to be notified, postage prepaid and registered or certified with return
receipt requested, (b) delivery in person or by courier service or
overnight delivery service, or (c) transmission by telecopy. Each
notice or communication that is mailed, delivered, or transmitted in the
manner described above shall be deemed sufficiently given, served, sent,
and received, in the case of mailed notices, on the third business day
following the date on which it is mailed and, in the case of notices
delivered by hand, courier service, or telecopy, at such time as it is
delivered to the addressee (with the delivery receipt or the affidavit
of messenger being proof of delivery) or at such time as delivery is
refused by the addressee upon presentation. For purposes of notice, the
addresses of the parties shall be as set forth beside their signatures
to this Agreement. Any party may change its address for notice by
written notice given to the other party.
6.10 Miscellaneous. This Agreement (a) supersedes any and all
other agreements, either oral or written, between the parties hereto
with respect to the subject matter hereof and contains all of the
covenants and agreements between the parties with respect thereto, (b)
may be executed in counterparts, each of which shall constitute an
original, but all of which shall constitute one document, and (c) shall
be binding upon the parties hereto, together with their respective
successors and permitted assigns. There are no oral agreements between
the parties to this Agreement. No change or modification of this
Agreement shall be valid or binding upon the parties hereto, nor shall
any waiver of any term or condition in the future be so binding, unless
such change or modification or waiver shall be in writing and signed by
the parties hereto. The terms "herein," "hereto," "hereof," and
"hereby" refer to this Agreement as a whole unless the context clearly
requires otherwise. The captions in this Agreement are for convenience
of reference only. Faxed copies of manually executed signature pages to
this Agreement will be fully binding and enforceable without the need
for delivery of the manually executed signature page. This Agreement
shall not be construed against the party responsible for, or primarily
responsible for, preparing this Agreement. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF TEXAS,
WITHOUT REGARD TO CONFLICT OF LAW RULES OF SUCH STATE.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first set forth above.
ZIRCA CORPORATION
Address:
Zirca Corporation
00000 Xxxxxx Xxxxx By: /s/ Xxxxxx X. Xxxxx
Farmers Xxxxxx, Xxxxx 00000 Name: Xxxxxx X. Xxxxx
Telecopy No. (000) 000-0000 Title: Vice President, CFO
Attn: Xxxxx Xxxxx
With a copy to:
Xxxxx X. Xxxxxxx
Gardere & Xxxxx , L.L.P.
3000 Thanksgiving Tower
0000 Xxx Xxxxxx
Xxxxxx, Xxxxx 00000-0000
Telecopy No. 000-000-0000
UNIVIEW TECHNOLOGIES ADVANCED SYSTEMS
Address: GROUP, INC.
uniView Technologies Advanced
Systems Group, Inc.
00000 Xxxxx Xxxxxx By: /s/ Xxxxxxx X. Xxxxxx
Xxxxxx, Xxxxx 00000 Name: Xxxxxxx X. Xxxxxx
Attn: Xxxxxxx Xxxxxx Title: President
With a copy to:
Xxxxx Xxxxxxxx,
General Counsel
Uniview Technologies Corporation
00000 Xxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
JOINDER
For good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, Interphase Corporation and uniView
Technologies Corporation, each by its signature hereto, join in the
execution of the above and foregoing Acquisition Agreement (the
"Agreement") and agree to be bound by the terms thereof to such extent
and for such purposes as expressed in the Agreement.
INTERPHASE CORPORATION
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Vice President, CFO
UNIVIEW TECHNOLOGIES CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: President
Exhibit A
Assets
Exhibit B
Assigned Contracts
Exhibit C
Assumed Liabilities
Future performance of Assigned Contracts.
Exhibit D
Sublease Agreement
Exhibit E
General Xxxx of Sale, Assignment, and Assumption Agreement
Exhibit F
Allocation Schedule
$615,140.00 of the Purchase Price shall be allocated to the Assets, and
$359,860 of the Purchase Price shall be allocated to developed software.
Exhibit G
Registration Rights Agreement
Schedule 3.5
Required Consent
Principal Life Insurance Company as Landlord under Prime Lease
Schedule 5.4
List of Employees
