EXHIBIT 10.2
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED BY TERAFORCE TECHNOLOGY CORPORATION
FOR CERTAIN PORTIONS OF THIS DOCUMENT. CONFIDENTIAL PORTIONS HAVE BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. OMITTED PORTIONS ARE
INDICATED IN THIS AGREEMENT WITH "***".
TECHNOLOGY TRANSFER AND SUPPORT AGREEMENT
THIS TECHNOLOGY TRANSFER AND SUPPORT AGREEMENT (this "Transfer
Agreement") is made and entered into as of November 13, 2003 by and between
VISTA CONTROLS, INC., a California corporation, with offices at 00000 Xxxxxx
Xxxx, Xxxxx Xxxxxxx, XX 00000 ("VISTA"), and DNA COMPUTING SOLUTIONS, INC., a
Delaware corporation with offices at 0000 Xxxx Xxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxx
00000 ("DNA").
RECITALS
WHEREAS, VISTA and DNA are parties to that certain Technology License
and Marketing Agreement, dated of even date herewith and to which this Transfer
Agreement forms an exhibit (the "License Agreement"), pursuant to which, among
other things, DNA is granting VISTA a license in and to the Licensed Technology
(as defined therein);
WHEREAS, in connection with the transactions contemplated by the
License Agreement, VISTA desires that DNA deliver to VISTA all know-how,
documentation, processes, procedures and other information and materials
relating to and necessary or useful for the full understanding, use and
application of the Licensed Technology;
WHEREAS, VISTA further desires that DNA perform certain consulting,
engineering support and technical assistance for and on behalf of VISTA related
to the Licensed Technology; and
WHEREAS, DNA is willing to perform such services, on the terms and
conditions set forth herein.
AGREEMENT
NOW, THEREFORE, for and in consideration of the foregoing and of the
mutual promises, covenants, conditions, and undertakings hereinafter set forth,
the sufficiency of which is hereby acknowledged, and for other good and valuable
consideration, it is agreed by and between the parties as follows:
1. Definitions. Capitalized terms used and not defined herein
have the meanings given them in the License Agreement. The following terms have
the following meanings:
"Acceptance" has the meaning set forth in Section 3(b) of this
Transfer Agreement.
"Acceptance Period" has the meaning set forth in Section 3(b)
of this Transfer Agreement.
"Acceptance Test" has the meaning set forth in Section 3(b) of
this Transfer Agreement.
"Continuing Support Period" has the meaning set forth in
Section 4 of this Transfer Agreement.
"Information and Materials" means the Licensed Technology and
all information, ideas, concepts, knowledge, know-how, understandings,
recollections, familiarities, practices, processes, methods, uses, applications,
market, industry and customer data, materials, documents, instructions,
drawings,
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designs, diagrams, specifications, prototypes, graphics, art work, labels,
branding, packaging, trademarks, trade names, trade dress, trade styles, service
marks, identifying marks and copyrightable materials and other works of
authorship, operational, technical and other data, inventions, discoveries,
research and development information, works, works of authorship, creative
works, content, deliverables, technologies, formulae, algorithms, models, trade
secrets, confidential information, interfaces, programs, source code, object
code, and all other tangible and intangible materials and information relating
to, incorporating, evidencing the Licensed Technology or necessary, useful or
appropriate for the effective use, maintenance, modification, adaptation and
support of the Licensed Technology and all updates, upgrades, improvements,
enhancements, modifications, alterations and derivative works related thereto,
and any and all other manifestations or embodiments of any of the Licensed
Technology or any of the foregoing, regardless of the form or the manner in
which it was or is developed or conceived, and whether existing singularly or in
combination with other information and materials, which DNA owns, has a right to
use, uses or holds for use on, prior to or after the Effective Date, including
without limitation, all hardware designs, board support software, manufacturing
data, DNA's portfolio of Wingspan libraries and those specific deliverables set
forth in the Transfer Schedule attached hereto as Exhibit A.
"Initial Support Period" has the meaning set forth in Section
4 of this Transfer Agreement.
"License Agreement" has the meaning set forth in the Recitals
to this Transfer Agreement.
"License and Transfer Fees" has the meaning set forth in
Section 7(a) of this Transfer Agreement.
"Qualified Personnel" has the meaning set forth in Section
5(a) of this Transfer Agreement.
"Stage" has the meaning set forth in Section 2 of this
Transfer Agreement.
"Support Period" has the meaning set forth in Section 4 of
this Transfer Agreement.
"Support Services" has the meaning set forth in Section 4 of
this Transfer Agreement.
"Transfer" has the meaning set forth in Section 2 of this
Transfer Agreement.
"Transfer Schedule" has the meaning set forth in Section 2 of
this Transfer Agreement.
"Virus" has the meaning set forth in Section 8(b)(ii) of this
Transfer Agreement.
2. Transfer of Information and Materials. DNA shall, at its
expense, furnish, transfer and deliver to VISTA, free and clear of all liens,
charges and encumbrances (other than the licenses and rights granted to VISTA
pursuant to the License Agreement), all Information and Materials, which
transfer shall include the delivery of all physical and electronic portions of
the Information and Materials as well as the transfer of all intangible
informational portions of the Information and Materials as part of the Support
Services set forth in Section 4 below (collectively, the "Transfer"). All
Information and Materials shall be Transferred to VISTA in stages (each, a
"Stage") according to the transfer schedule attached hereto as Exhibit A (the
"Transfer Schedule"); provided, however, that the inclusion of those specific
deliverables set forth on the Transfer Schedule shall not limit the scope of the
Information and Materials to be Transferred to VISTA hereunder. VISTA shall be
entitled to designate in its sole discretion the location at which, and the
method, manner and means by which, the Information and Materials are Transferred
hereunder.
3. Acceptance of Transferred Information and Materials.
(a) Interim Testing. For efficiency purposes and in
addition to the acceptance testing provided for in Section 3(b) below, VISTA
shall be entitled to conduct informal testing at various
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times during the Transfer to ensure that the portions of the Information and
Materials are being delivered and transferred to VISTA in accordance with this
Transfer Agreement and are otherwise free from errors and omissions; provided,
however, that no such informal testing nor any provisional acceptance thereof by
VISTA shall constitute acceptance of any aspect of the Information and Materials
by VISTA or relieve DNA of the responsibility to complete successful acceptance
tests on the Transfer of the Information and Materials for a Stage as a
precondition to its entitlement to certain payments under this Transfer
Agreement.
(b) Acceptance Testing. Upon completion of the Transfer
of all Information and Materials relating to a Stage as set forth on the
Transfer Schedule (and upon final Transfer of all Information and Materials
hereunder), DNA shall deliver to VISTA a written certification that such
Information and Materials have been fully Transferred hereunder and ready for
acceptance testing hereunder. Upon receipt of such notice, VISTA or its designee
shall have a period of ten (10) days following each Stage (and ten (10) days
following the expiration of such period with respect to the final Transfer of
Information and Materials hereunder)(as applicable, the "Acceptance Period") to
test and evaluate (the "Acceptance Test") such Information and Materials to
determine in its reasonable discretion whether they conform to, and have been
Transferred in accordance with, this Transfer Agreement, the applicable Stage,
Transfer Schedule and their applicable specifications, and to ensure that they
can be effectively utilized by VISTA in its operating business environment. All
Acceptance Tests shall be performed in the manner determined by VISTA. At no
cost to VISTA, DNA personnel will be available to VISTA during such testing. The
Information and Materials for an applicable Stage will be deemed accepted
("Acceptance") (i) if VISTA gives written notice of its acceptance, or (ii) if
VISTA fails to deliver its acceptance or rejection of the Information and
Materials for an applicable Stage within the Acceptance Period and DNA gives
VISTA written notice of the expiration of the Acceptance Period two (2) days
prior to the expiration thereof.
(c) Failure. If VISTA determines, in its reasonable
discretion, that the Information and Materials or any portion thereof fail to
pass the Acceptance Test, VISTA will notify DNA within five (5) days following
the end of the Acceptance Period, specifying the nature of such failure in
reasonable detail. DNA shall, at its own expense, Transfer such Information and
Materials as required hereunder and/or make such necessary corrections and
modifications to the Information and Materials as will permit them to be ready
for retesting no later than fifteen (15) days (or such longer period as VISTA
may authorize in writing) from the date of receipt of VISTA's notice of failure,
and VISTA shall be entitled to commence and complete retesting of the
Information and Materials as soon as commercially reasonable thereafter. If
VISTA determines that the Information and Materials still fail to pass the
Acceptance Test, VISTA shall promptly notify DNA in writing, and shall have the
right, at its option, to require DNA to re-perform its obligations hereunder or
give written notice to DNA of termination of this Transfer Agreement, without
liability on the part of VISTA to DNA for any such terminated portions. In the
event VISTA elects to terminate this Transfer Agreement hereunder, VISTA shall
be entitled to a refund of all amounts paid to DNA hereunder.
(d) Non-Prejudicial Acceptance. Notwithstanding anything
herein to the contrary, DNA agrees that VISTA's or its designee's (i) failure to
inspect or discover any nonconformity with respect to the Information and
Materials or Transfer of the Information and Materials, (ii) inspection of all
or less than all of the Information and Materials, or (iii) approval, acceptance
or payment by VISTA of or for the Information and Materials, is without
prejudice to any rights, remedies or entitlements VISTA may have under this
Transfer Agreement, at law, in equity or otherwise, and shall not relieve DNA
from any obligations under any warranties, representations, covenants or
obligations hereunder, express or implied.
4. Consulting and Support Services. As reasonably requested by
VISTA from time to time during the period commencing on the Effective Date and
expiring twelve (12) months following Acceptance of all Information and
Materials hereunder (the "Initial Support Period"), and thereafter for up to ten
(10) hours per week during the term of this Transfer Agreement (the "Continuing
Support Period" and collectively with the Initial Support Period, the "Support
Period"), DNA shall provide to VISTA all consulting, engineering and technical
assistance, training and support sufficient for VISTA and its employees and
agents to fully understand the design, architecture, logic, function, operation
and
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development of the Licensed Technology and the Information and Materials in
order that VISTA can continue to efficiently and effectively use, reproduce,
operate, develop, maintain, support, modify, adapt and market the Licensed
Technology (the "Support Services").
5. Personnel.
(a) The Support Services shall include, but not
necessarily be limited to, the consulting services of those employees of DNA
necessary to adequately provide the services required by VISTA, subject to the
reasonable review and approval of VISTA, or such other designated engineers as
the parties may mutually agree (such engineers along with any other DNA
personnel and agents providing services hereunder are referred to herein as the
"Qualified Personnel") at no additional charge to VISTA. VISTA shall be
entitled, in its discretion, to have any Qualified Personnel substituted with
one or more DNA engineers, personnel or agents to continue providing the Support
Services hereunder, all of which substitute persons shall constitute Qualified
Personnel hereunder. All acts or omissions of the Qualified Personnel shall be
deemed acts or omissions of DNA under this Transfer Agreement.
(b) In accordance with Section 6 below, DNA agrees to
assign and transfer, and hereby does assign and transfer, to VISTA all
Intellectual Property Rights (as defined in the License Agreement) resulting
from the performance of the Qualified Personnel of any Support services
contemplated in this Section 5 related to the VISTA Technology or Combined
Technology (other than related solely to the Pre-Existing Materials or Licensed
Technology).
(c) During the performance of the Support Services, the
Qualified Personnel will remain employees solely of DNA and DNA shall be solely
responsible for the compensation, employee benefits, tax withholding,
supervision and discipline of the Qualified Personnel, and the Qualified
Personnel shall continue to report to DNA and be subject to DNA's employment
policies and procedures.
(d) VISTA agrees to designate and make reasonably
available to DNA one or more persons and engineers, selected by VISTA, to
receive the training to be provided by DNA as part of the Support Services.
VISTA shall be entitled to substitute any such person upon notice to DNA.
6. Ownership. DNA agrees that all material, notes, records, works
of authorship, inventions, designs, discoveries, improvements, developments,
confidential information and trade secrets made, conceived, reduced to practice,
or discovered by DNA in performing the Support Services related to the VISTA
Technology or Combined Technology (other than related solely to the Pre-Existing
Materials or Licensed Technology) shall constitute VISTA Property subject to the
terms and conditions of the License Agreement.
7. Fees and Payment.
(a) License and Transfer Fees. Subject to the terms and
conditions of this Transfer Agreement and the License Agreement and in
consideration of the performance by DNA of its obligations under this Transfer
Agreement and the License Agreement, VISTA agrees to pay DNA the fees (the
"License and Transfer Fees") designated on the Transfer Schedule attached hereto
as Exhibit A upon Acceptance of each Stage of the Transfer of the Information
and Materials.
(b) Expenses. Except as otherwise explicitly set forth in
this Transfer Agreement or as otherwise agreed to by the parties in writing,
each party shall bear all of its own expenses incurred in performing its
obligations under this Transfer Agreement. A party will reimburse the other
party for reasonable out-of-pocket costs and expenses required and actually
incurred by such party in performing its obligations hereunder only if the
performing party has (i) obtained the other party's prior written consent to
reimburse the performing party for such expenses, which consent may be given or
withheld in the non-performing party's sole discretion, (ii) detailed such
expenses on a form acceptable to the other party, and (iii) submitted supporting
documentation reasonably satisfactory to the other party.
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8. Representations and Warranties.
(a) Each party represents, warrants and covenants to the
other that (i) it has the right, power and authority to enter into and perform
its obligations under this Transfer Agreement, and this Transfer Agreement
constitutes a legal, valid and binding obligation on its part, enforceable
against it in accordance with its terms; and (ii) the execution, delivery and
performance of this Transfer Agreement by such party will not result in the
breach of any terms of, or constitute a default under, or conflict with, or
cause any acceleration of any obligation of such party, or violate any
applicable law, rule or regulation, and each party will at all times comply with
all applicable federal, state and local laws, rules and regulations in the
performance of its obligations hereunder and obtain and possess all licenses,
consents, permits and other required or prudent authorizations to perform its
obligations hereunder; and (iii) it has no outstanding agreement or obligation
to any third party that is in conflict with any of the provisions of this
Transfer Agreement, or that would preclude it from complying fully with the
provisions hereof, and further certifies that it will not enter into any such
conflicting agreement during the term of this Transfer Agreement.
(b) In addition to the representations, warranties and
covenants set forth in the License Agreement, all of which are incorporated
herein by reference as applicable to the Information and Materials and the
performance of DNA's and VISTA's obligations hereunder, DNA represents, warrants
and covenants to VISTA that:
(i) Each Qualified Personnel, and each
independent contractor of DNA, if any, has executed an agreement with DNA
containing provisions consistent with DNA's obligations to VISTA under this
Transfer Agreement and the License Agreement.
(ii) The Information and Materials shall be free
of all computer instructions, files, programs or program code, devices or
techniques (including any copy protection key, code clock, time bomb, virus,
Trojan horses, worm, trap door, back door and other harmful code) that can or
were designed to (A) affix themselves to, bury themselves within or send
instructions to, other files, data, programs or program code in order to cause
malfunctions, errors or destruction, corruption or otherwise limit the use of
data or the Information and Materials when affixed or at a later time, or (B)
threaten, infect, assault, vandalize, defraud, disrupt, damage, disable, alter,
inhibit or shut down the Information and Materials or the use or application
thereof, including other programs, data storage and computer libraries or
otherwise prevent VISTA from utilizing or accessing the Information and
Materials as intended (collectively, a "Virus"). If at any time the Information
and Materials are found to contain a Virus, then DNA shall promptly repair or
replace the same with Virus free Information and Materials that meet all of the
terms and conditions the Agreements.
9. Term and Termination.
(a) This Transfer Agreement will commence on the
Effective Date and will continue, unless earlier terminated as provided below,
during the Exclusive Period (as defined in the License Agreement).
(b) Either party may exercise its rights of termination
set forth in the License Agreement to terminate this Transfer Agreement;
provided, however, that either party may terminate this Transfer Agreement
immediately upon written notice to the other party if the License Agreement is
terminated for any reason; provided, further, that DNA shall not be entitled to
terminate this Transfer Agreement (except for VISTA's nonpayment of undisputed
amount due and payable hereunder) until termination and expiration of all rights
granted under the License Agreement and until it fully satisfies its obligations
to Transfer of all Information and Materials as set forth herein.
(c) Upon termination of this Transfer Agreement, all
rights and duties of the parties hereunder shall cease except:
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(i) VISTA shall be obliged to pay, within thirty
(30) days after receipt of DNA's final statement (in the form of an invoice),
any undisputed amounts due and owing to DNA hereunder; and
(ii) Section 6 (Ownership), this Section 9 (Term
and Termination), Section 10 (Indemnification and Insurance) and Section 11
(Miscellaneous) shall survive expiration or termination of this Transfer
Agreement.
10. Indemnification and Insurance. The parties agree that the
terms and conditions set forth in Article 10 (Indemnification and Insurance) of
the License Agreement are incorporated by reference herein and shall apply to,
and each party agrees to comply with and be bound by such terms and conditions
as applicable to, this Transfer Agreement, the Information and Materials and the
parties' respective obligations hereunder. In addition to the indemnity
obligations set forth in Section 9.1(a) of the License Agreement, DNA shall
defend, indemnify and hold harmless the VISTA Indemnitees under Section 9.1 of
the License Agreement from and against any and all liabilities, damages, losses,
claims, demands, assessments, actions, causes of action, costs (including
attorneys' fees and associated expenses) and any of them, arising out of or
resulting from claims with respect to any claim arising out of or relating to
any act or omission, actual or alleged, by DNA in connection with a Qualified
Personnel member's employment with DNA or any Support Services hereunder,
including, without limitation, the provision of services for the benefit of
VISTA while a DNA employee, including, without limitation, with respect to (a)
any alleged work-related injury, illness or death; (b) claim for payment of
wages accrued during a Qualified Personnel's employment with DNA; (c) claim for
accrued employee pension, profit sharing, retirement, welfare, fringe or other
benefit obligations of DNA, including, without limitation, any claims under the
Employee Retirement Income Security Act of 1974, as amended; or (d) any claims
arising out of a contention that VISTA is an employer, dual employer or joint
employer of such Qualified Personnel.
11. Miscellaneous
(a) Independent Contractor Status. The parties to this
Transfer Agreement are independent contractors and this Transfer Agreement shall
not be construed to create any partnership, franchise or employment
relationship. In addition, nothing in this Transfer Agreement shall be deemed to
appoint or authorize one party to act as an agent or other representative of the
other party or to assume or incur any liability or obligation in the name of or
on behalf of the other party, but this Section shall not be construed to
diminish any licenses or rights granted to VISTA under this Transfer Agreement.
(b) Force Majeure. Any failure or delay in the
performance by VISTA or DNA of their respective obligations hereunder, other
than a failure to pay undisputed amounts due hereunder, shall not be a breach of
this Transfer Agreement if such failure or delay arises out of or results
primarily from an Event of Force Majeure. In the event that an Event of Force
Majeure materially affects a party's obligations hereunder, then upon notice to
the other party, the party affected thereby shall be relieved of its obligations
hereunder for so long as such Event of Force Majeure continues to have such
affect. Both VISTA and DNA shall use their commercially reasonable efforts to
avoid the occurrence and remove the causes of an Event of Force Majeure and to
continue performance of their respective obligations hereunder promptly
following the removal of such causes.
(c) Assignments. This Transfer Agreement is binding upon
and shall inure to the benefit of the parties hereto and their respective
successors and assigns. Affiliates of VISTA are intended third party
beneficiaries of this Transfer Agreement to the extent expressly provided
herein. DNA shall not assign or transfer any of its rights under this Transfer
Agreement (whether by merger, operation of law or otherwise) or delegate any of
its obligations or duties hereunder without the prior written consent of VISTA,
which may be withheld in VISTA's sole discretion. VISTA shall be entitled to
assign, transfer or delegate this Transfer Agreement or any rights or duties
under this Transfer Agreement upon prior written notice to DNA. Any assignment
of this Transfer Agreement by either party shall not relieve or release such
party from any of its duties or obligations under this Transfer Agreement.
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(d) Notices. Any notice contemplated by or required or
permitted to be given under this Transfer Agreement shall be given in the manner
set forth in the License Agreement.
(e) Expenses. Each party hereto shall pay all of its own
administrative expenses (including without limitation the fees and expenses of
its agents, representatives and counsel) incident to the preparation and
implementation of this Transfer Agreement.
(f) Waiver. No waiver by either party hereto of any
breach or default of any of the covenants or agreements herein set forth shall
be deemed a waiver as to any subsequent and/or similar breach or default. The
failure of any party hereto to enforce at any time any of the provisions of this
Transfer Agreement shall in no way be construed to constitute a waiver of any
such provision nor in any way to affect the validity of this Transfer Agreement
or any part hereof, including the right of any party thereafter to enforce each
and every provision. The waiver by any party to this Transfer Agreement of any
breach or violation of any provision of this Transfer Agreement by the other
party hereto shall not operate or be construed to be a waiver of any subsequent
breach or violation thereof.
(g) Governing Laws, Venue, Jurisdiction, Disputes. This
Transfer Agreement shall be interpreted and construed in accordance with the
laws of the State of North Carolina and the United States of America. Any
disputes, controversies or differences arising out of or in connection with this
Transfer Agreement or the making thereof, Including claims of fraud in the
inducement, which cannot be settled by mutual agreement shall be resolved by the
state or federal courts located in Mecklenburg County, North Carolina. All
parties hereby submit to the jurisdiction of said courts. The provisions of
Article 10 (Dispute Resolution) of the License Agreement shall apply to this
Transfer Agreement.
(h) Drafting. All parties hereto have been represented by
counsel, and each voluntarily enters into and agrees to be bound by this
Transfer Agreement as written on the day it is signed. Authorship of this
Transfer Agreement shall be deemed to be joint, and shall not be attributed to
one party or another for the purpose of construing its terms or provisions. The
Recitals to this Transfer Agreement are for reference purposes only and shall
not be binding upon any party or otherwise used by a party to contradict or
challenge the terms of this Transfer Agreement.
(i) Severability. If any provision of this Transfer
Agreement is declared or found to be illegal, unenforceable or void, then both
parties shall be relieved of all obligations arising under such provision, but
only to the extent that such provision is illegal, unenforceable or void.
Further, this Transfer Agreement shall be deemed amended by modifying such
provision to the extent necessary to make it legal and enforceable while
preserving its intent or, if that is not possible, by substituting therefore
another provision that is legal and enforceable and achieves the same intended
objective. If the remainder of this Transfer Agreement shall not be affected by
such illegal, unenforceable or void provision and is capable of substantial
performance, then each provision not so affected shall be enforced to the extent
permitted by law.
(j) Counterparts. This Transfer Agreement and any
amendments, waivers, consents or supplements hereto may be executed in any
number of counterparts, and by different parties in separate counterparts, each
of which when so executed and delivered shall be deemed an original, but all
such counterparts together shall constitute but one and the same agreement. Each
such agreement, document or instrument shall become effective upon the execution
of a counterpart hereof or thereof by each of the parties hereto.
(k) Media Releases. All media releases, public
announcements and public disclosures by DNA or VISTA, or their respective
Affiliates, representatives, employees or agents, relating to this Transfer
Agreement or its subject matter, but not including any announcement intended
solely for internal distribution by a party or any disclosure required by legal,
accounting or regulatory requirements beyond the reasonable control of a party,
shall be coordinated with and approved in writing by the other party prior to
the release thereof.
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(l) Further Acts. Each party shall do, or cause to be
done, all such further acts, and shall execute, acknowledge and deliver, or
cause to be executed, acknowledged and delivered, any and all such further
documentation as the other party reasonably requires to carry out the purposes
of this Transfer Agreement.
(m) Non-Exclusive Remedies; Specific Performance. DNA
acknowledges and agrees that any and all rights, remedies or entitlements
afforded to VISTA hereunder shall be in addition and without prejudice to any
rights, remedies or entitlements VISTA may have at law, in equity or otherwise.
Without limiting the foregoing, DNA acknowledges that damages in the event of
breach of DNA's obligations under this Transfer Agreement would be difficult to
ascertain, and therefore agrees that VISTA shall have the right to an injunction
and any other equitable relief in any court of competent jurisdiction, enjoining
any such breach, including, without limitation, the right to obtain specific
performance against DNA for the full and complete performance and satisfaction
of its obligations to Transfer the Information and Materials to VISTA and
perform the Support Services hereunder, and shall be entitled to recover its
costs incurred in prosecuting or defending such action, including reasonable
attorneys' fees.
(n) Entire Agreement; Amendments. This Transfer Agreement
and its Exhibits (and to the extent applicable, the License Agreement and the
Distribution Agreement) constitute the entire agreement between the parties with
respect to the subject matter hereof, and all prior agreements respecting the
subject matter hereof, either written or oral, expressed or implied, shall be
abrogated, canceled, and are null and void and of no effect. All amendments to
this Transfer Agreement must be in writing and signed by the parties. Each party
represents and warrants to the other party that in entering into this Transfer
Agreement it has not relied on any representations, promises or assurances from
the other party or any employee, officer, director, representative, attorney or
Affiliate of the other party not expressly contained in this Transfer Agreement.
Any other terms or conditions shall not be incorporated herein or be binding
upon either party unless expressly agreed to in writing by both parties.
Signatures Appear on Following Page
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IN WITNESS WHEREOF, the parties have executed and delivered this
Transfer Agreement, in duplicate originals, by their respective persons or
officers hereunto duly authorized, to be effective as of the day and year first
above written.
VISTA CONTROLS, INC.
By: /s/ XXXXX XXXXX
-------------------------------
Name: Xxxxx Xxxxx
Title: President and GM
DNA COMPUTING SOLUTIONS, INC.
By: /s/ R. XXXXXX XXXXX
-------------------------------
Name: R. Xxxxxx Xxxxx
Title: Chief Executive Officer
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EXHIBIT A
TRANSFER SCHEDULE
***
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED BY TERAFORCE TECHNOLOGY CORPORATION
FOR CERTAIN PORTIONS OF THIS DOCUMENT. CONFIDENTIAL PORTIONS HAVE BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. THE REDACTED
CONFIDENTIAL INFORMATION CONTAINED IN THIS PORTION OF THE DOCUMENT CONSISTED OF
TWO PAGES.
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