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EXHIBIT 10.10
Confidential Treatment Request
[ ] Material indicated by this xxxx
has been deleted pursuant to a request
for confidential treatment, and has been filed
separately.
ASSET PURCHASE AGREEMENT
SELLER
SCC Communications Corp.
BUYER
Printrak International Inc.
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ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT (the "Agreement") is made as of July 18,
1997, by and between Printrak International Inc., a Delaware corporation
("Buyer"), and SCC Communications Corp., a Delaware corporation ("SCC" or
"Seller").
R E C I T A L S
A. Seller owns and operates the Computer-Aided Dispatch and Records
Management Division (the "CAD/RMS Division") of SCC and its foreign subsidiary,
Public Safety Technologies of Australia (Pty), Ltd., which develop and market a
computer-aided dispatch and records management software product line (the
"Business").
B. Buyer desires to purchase, and Seller desires to sell and transfer to
Buyer, substantially all of the assets of the CAD/RMS Division and all of the
stock of the Foreign Subsidiary all upon the terms and conditions hereinafter
set forth.
NOW, THEREFORE, in consideration of the foregoing premises, the terms,
covenants, and conditions hereinafter set forth, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
1. ASSETS AND LIABILITIES BEING PURCHASED AND ASSUMED.
1.1 PURCHASED ASSETS. Buyer hereby agrees to purchase from Seller,
and Seller hereby agrees to sell, transfer and assign to Buyer, free and clear
of any and all mortgages, liens, security interests, encumbrances, pledges,
leases, equities, claims, charges, restrictions, conditions, conditional sale
contracts and any other adverse interests of any kind whatsoever (other than
those securing any Assumed Obligations), all of the assets, wherever located,
which are owned by Seller, or in which Seller has any right, title or interest,
and used in connection with the Business (collectively referred to herein as the
"Purchased Assets"). The Purchased Assets shall include, but shall not be
limited to, the following:
(a) The tangible personal property, machinery, equipment, hones,
tools, machine and electric parts, supplies and computers, wherever located,
owned or used by Seller solely or primarily in connection with the Business
(collectively, the "Tangible Assets"), all the items of which are identified in
Schedule 1.1(a) attached hereto;
(b) All of the rights, tangible and intangible, and leasehold
interests in personal property, of Seller existing under any contracts,
agreements, leases, licenses, instruments or commitments, all of which are
listed on Schedule 4.6 attached hereto, and under any contracts, agreements,
leases, licenses, instruments and commitments which are entered into by Seller
in connection with the Business after the date hereof and prior to the "Closing"
(as defined below) with the prior written consent of Buyer (collectively, the
"Assumed Contracts");
(c) All rights in and to any governmental and private permits,
licenses, franchises and authorizations, to the extent assignable, used in
connection with the Business;
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(d) All rights in and to any requirements, processes,
formulations, methods, technology, know-how, formulae, trade secrets, trade
dress, designs, inventions and other proprietary rights and all documentation
embodying, representing or otherwise describing any of the foregoing, owned or
held by Seller in connection with the Business (the assets described in Sections
1.1(d) through 1.1(g) are referred to as the "Intangible Property Rights");
(e) All patents, copyrights, tradenames, trademarks and service
marks of Seller used in the Business (other than "SCC" or "SCC Communications
Corp."), all of which are set forth on Schedule 1.1(e), and all applications
therefor, and all documentation embodying, representing or otherwise describing
any of the foregoing;
(f) All rights in and to the customer lists, promotion lists,
marketing data and other compilations of names and data developed in connection
with the Business, and which shall be delivered by or on behalf of Seller to
Buyer at or prior to the Closing;
(g) All of Seller's rights in and to the computer software
programs (including software licensed to Seller) used in connection with the
Business or developed or under development by, or on behalf of, Seller in
connection with the Business, all of which are identified on Schedule 4.15,
including the source code, object code and documentation for such software, in
each case to the extent that Seller possesses and has a right to possess and
transfer the same;
(h) All accounts and notes receivable and unbilled project
revenues generated in connection with the Business from and after July 1, 1997
(other than the account receivable from Xxxxxx County, which is excluded), and
all cash received upon the billing and collection thereof, whether on hand, in
banks or other depository accounts, or transit, and all negotiable instruments
of or made payable to Seller, advanced payments, claims for refunds and deposits
and other prepaid items of Seller;
(i) All accounts receivable schedules, lists, files, books,
publications, and other records and data used in connection with the Business;
and
(j) All causes of action, claims, suits, proceedings, judgments
or demands, of whatsoever nature, of or held by Seller against any third parties
with respect to the Business.
1.2 ASSUMED OBLIGATIONS. Buyer hereby agrees to assume, honor and
discharge when due only: (a) those liabilities, obligations and commitments
(including bonding obligations) specifically set forth on Schedule 1.2 (the
"Assumed Liabilities"); and (b) those liabilities and obligations arising after
the "Closing Date" (as defined below) under the Assumed Contracts (which,
together with the Assumed Liabilities, shall sometimes be referred to herein
collectively as the "Assumed Obligations"). The Assumed Obligations shall not
include, and Seller covenants that Buyer shall not be liable or responsible for,
any obligations or liabilities to the extent arising out of any act or omission
of Seller under any Assumed Contract, regardless of when such liability or
obligation is asserted. Seller represents and warrants that, except as set forth
on Schedule 1.2, Seller is not in default under any Assumed Obligation, and
Buyer shall not be obligated to assume any Assumed Obligation which is in
default as of the Closing Date, or any obligation relating to periods prior to
the Closing Date.
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1.3 OPTION TO PURCHASE STOCK OF SUBSIDIARY. Seller hereby grants to
Buyer an option to purchase all of the issued and outstanding stock of
Subsidiary (the "Subsidiary Stock") for a purchase price of One Hundred Dollars
($100.00). Such option shall be exercisable by written notice to Seller within
thirty (30) days following the Closing Date, and Seller shall deliver to Buyer
certificates representing the Subsidiary Stock, duly endorsed for transfer, as
well as all corporate records of Subsidiary, within ten (10) days following
receipt of such notice (the "Option Closing Date"). In the event that such
option is exercised, the representations and warranties contained in this
Agreement with respect to Subsidiary shall be deemed to have been made again as
of the Option Closing Date, and Seller shall deliver to Buyer a certificate of
an officer of Seller, certifying as to the accuracy thereof. The Subsidiary
Stock shall be transferred to Buyer, free and clear of any and all mortgages,
liens, securing interests, encumbrances, pledges, claims and any other adverse
interests of any kind whatsoever.
2. LIABILITIES NOT ASSUMED.
Except for the Assumed Obligations, Seller agrees that Buyer will not
assume or perform, and Seller shall remain responsible for and shall indemnify,
hold harmless and defend Buyer from and against, any and all liabilities and
obligations of Seller, whether known or unknown, and regardless of when such
liabilities or obligations arise or are asserted, including, without limitation,
any obligations or liabilities of Seller with respect to the following:
(a) Any compensation or benefits payable to employees of Seller,
including, but not limited to, any liabilities arising under any employee
pension or profit sharing plan or other employee benefit plan, any severance pay
or other termination costs due to employees of Seller as a result of the
transactions contemplated by this Agreement or any of Seller's obligations to
its employees for salaries and vacation and holiday pay accrued and unpaid as of
the Closing Date;
(b) All federal, state, local, foreign or other taxes applicable
to Seller for periods prior to the Closing Date;
(c) Injuries to or the death of any person, or any employee of
Seller, that has occurred or may occur, prior to Closing, in connection with the
Business or any other operations engaged in by Seller, even if not discovered
until after the Closing Date;
(d) All liens, claims and encumbrances on any of the Purchased
Assets and all obligations and liabilities secured thereby;
(e) All obligations of Seller for borrowed money, or incurred in
connection with the purchase, lease or acquisition of any assets, and any
obligations of a similar nature incurred by Seller;
(f) Any accounts or notes payable or similar indebtedness
incurred by Seller;
(g) Any claims, demands, actions, suits, legal proceedings,
obligations or liabilities arising from Seller's operation of the Business prior
to the Closing, or arising from any other business or operations of Seller
conducted prior to the Closing, whether such claims, demands,
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actions, suits, legal proceedings, obligations or liabilities are presently
pending or threatened or are threatened or asserted at any time after the date
hereof and whether before or after the Closing; and
(h) Any liabilities arising out of the termination by Seller of
any of its employees in anticipation or as a consequence of, or following,
consummation of the transactions contemplated hereby.
3. PURCHASE PRICE AND TERMS OF PAYMENT.
3.1 PURCHASE PRICE. As consideration for the sale to Buyer of the
Purchased Assets, Buyer agrees to pay to Seller the aggregate sum of [ ],
representing the net book value of the Purchased Assets as of June 30, 1997,
(calculated in accordance with GAAP, provided that the reserve for anticipated
project losses has been increased to [ ] and all capitalized software has
been written off), and to assume the Assumed Obligations in Section 1.2 (the
"Purchase Price"). The Purchase Price shall be paid by wire transfer of
immediately available funds to Seller's bank account per written instructions of
Seller.
3.2 ALLOCATION OF PURCHASE PRICE. The Purchase Price shall be
allocated among the Purchased Assets as determined by Buyer in its sole
discretion. The parties hereto shall report consistent with Buyer's allocation
on all income tax returns, and will comply with, and furnish the information
required by Section 1060 of the Internal Revenue Code of 1986, as amended (the
"Code"), and any regulations thereunder.
4. REPRESENTATIONS AND WARRANTIES OF THE SELLER. Except as disclosed in
the Schedules delivered concurrently herewith by reference to the specific
Section or Sections hereof to which the disclosure pertains, Seller hereby
represents and warrants to Buyer, as of the date hereof and as of the Closing
Date, as follows:
4.1 AUTHORITY AND BINDING EFFECT. Seller has the full corporate power
and authority to execute and deliver this Agreement and each agreement
referenced herein (the "Related Agreements") to which it is a party and to
consummate the transactions contemplated by, and comply with its obligations
under, such agreements. This Agreement and the Related Agreements to which
Seller is a party, and the consummation by Seller of its obligations herein and
therein, have been duly authorized by all necessary corporate action of Seller,
including, without limitation, the approval of its shareholders in accordance
with applicable law. This Agreement and the Related Agreements have been duly
executed and delivered by the Seller and upon their execution and delivery will
be, the binding and valid agreements of the Seller. This Agreement and the
Related Agreements shall be enforceable against the Seller, in each such case in
accordance with their respective terms, except as such enforceability may be
limited by (i) bankruptcy, insolvency, moratorium or other similar laws
affecting creditors' rights generally and (ii) general principles of equity
relating to the availability of equitable remedies. No further action is
required to be taken by the Seller, nor is it necessary for the Seller to obtain
any action, approval or consent by or from any third persons, governmental or
other, to enable the Seller to enter into or perform its obligations under this
Agreement and the Related Agreements to which it is a party, except for the
consents of third parties to the assignment and assumption of the Assumed
Contracts which Seller shall use its best efforts to obtain following the
Closing (unless waived in writing by Buyer). Such consents are set forth in
Schedule 4.6 hereto.
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4.2 ORGANIZATION AND GOOD STANDING. Seller is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware. Subsidiary is a company duly organized, validly existing and in good
standing under the laws of Australia. Each of Seller and Subsidiary is duly
qualified to do business and is in good standing as a foreign corporation in
each jurisdiction in which such qualification is necessary under applicable law
as a result of the conduct of its business or the ownership or leasing of its
assets and the failure to be so qualified would have a material adverse effect
on such entity or the Business. Seller has the legal right, corporate power and
authority, and all licenses and other permits, required to operate the Business
as now conducted and to own, use and sell the Purchased Assets. Seller has
delivered to, or made available for inspection by, Buyer or its counsel true,
correct and complete copies of (i) Seller's and Subsidiary's charter documents
and all amendments thereto; (ii) Seller's and Subsidiary's Bylaws and all
amendments thereto, duly certified by its corporate secretary; and (iii)
Seller's and Subsidiary's minute and stock books. No actions, proceedings or
transactions have been commenced or undertaken by the Seller which give or would
give rights to any person, other than Buyer, in any of the Purchased Assets or
Purchased Stock or interfere with the consummation of the transactions
contemplated by this Agreement.
4.3 FINANCIAL STATEMENTS. Seller has delivered to Buyer unaudited
financial statements of Seller and Subsidiary relating to the Business
consisting of (i) an unaudited balance sheet as of June 30, 1997 (the "June
Balance Sheet"), and (ii) an unaudited balance sheet, and a related statement of
operating expenses, as of and for the period ended December 31, 1996, (the
"December 31, 1996 Financial Statements") (the June Balance Sheet and the
December 31, 1996 Financial Statements are collectively referred to herein as
the "Financial Statements"). True, correct and complete copies of the Financial
Statements are attached as Schedule 4.3A hereto. The Financial Statements fairly
present the financial condition of the Business and the results of its
operations as of the relevant dates thereof and for the respective periods
covered thereby, and have been prepared in accordance with generally accepted
accounting principles. Except as set forth in Schedule 4.3B, Schedule 1.2 and
Schedule 4.6 neither Seller nor Subsidiary has any debts, obligations,
liabilities or commitments of any nature relating to the Business, whether due
or to become due, absolute, contingent or otherwise, that, in accordance with
GAAP, are required to be disclosed in a balance sheet or the footnotes thereto,
and are not shown on the June Balance Sheet delivered pursuant hereto, other
than liabilities incurred after June 30, 1997 in the ordinary course of business
and consistent with past practice. Such post-June 30, 1997 liabilities have not
had, and are not expected to have, individually or in the aggregate, a material
adverse effect on the financial condition or results of operations or prospects
of Subsidiary or the Business. As to each liability, debt, obligation or
commitment, fixed or contingent, that is set forth on Schedule 4.3B and is
included in the Assumed Obligations, Seller shall provide the following
information, in writing as an attachment to such Schedule: (i) a summary
description of the liability, debt, obligation or commitment, together with
copies of all relevant documentation relating thereto, the amounts claimed and
any other action or relief sought and, if in connection with a claim, suit or
proceeding, the name of the claimant and all other parties involved therewith
and the identity of the court or agency in which such claim, suit or proceeding
is being prosecuted, and (ii) the best estimate of Seller of the maximum amount,
if any, which is likely to become payable with respect to any contingent
liability. For purposes hereof, if no written estimate is provided, such best
estimate shall be deemed to be zero.
4.4 ABSENCE OF CERTAIN CHANGES. During the period from June 30, 1997
to the date hereof, there has not been with respect to or affecting Seller,
Subsidiary or the Business: (i) any
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amendment, termination or revocation, or any threat known to the Seller of any
amendment, termination, or revocation, of any material contract or agreement to
which Seller or Subsidiary is, or was, a party which relates to Subsidiary or
the Business, or of any license, permit or franchise required for the continued
operation of the Business in substantially the same manner as it has been
conducted since its incorporation; (ii) except for the transactions contemplated
hereby, any sale, transfer, mortgage, pledge or subjection to lien, charge or
encumbrance of any kind, of, on or affecting any of the Purchased Assets, except
sales that have been made in the ordinary course of the Business and consistent
with past practices, and liens for current taxes not yet due and payable; (iii)
other than as contemplated in connection with the transactions contemplated
hereby, any increase in the compensation paid or payable or in the fringe
benefits provided to any employees of the CAD/RMS Division or Subsidiary; (iv)
any damage, destruction or loss, whether or not covered by insurance, of any of
the Purchased Assets; (v) the incurrence of any indebtedness, either for
borrowed money or in connection with any purchase of assets, or otherwise on
behalf of the Business, that is not reflected in the June 30, 1997 balance sheet
and individually or in the aggregate involves more than $5,000; (vi) any
purchase or lease, or commitment for the purchase or lease, of equipment,
machinery, leasehold improvements or other capital items for use in the Business
not disclosed in the June 30, 1997 Financial Statements which involves amounts
exceeding $5,000 individually or $10,000 in the aggregate or which is in excess
of or represents a departure from the normal, ordinary and usual requirements of
the Business; (vii) the execution by Seller or Subsidiary of any agreement or
contract relating to the Business that obligates Seller or Subsidiary to pay
more than $10,000 per year or which is materially disadvantageous to Seller,
Subsidiary or the Business; or (viii) the occurrence subsequent to June 30, 1997
of any other event or circumstance which, could reasonably be expected to
materially and adversely affect the Subsidiary, any of the Purchased Assets, the
Business, or the ability of the Seller to consummate the transactions
contemplated hereby.
4.5 THE PURCHASED ASSETS.
(a) TITLE TO AND ADEQUACY OF PURCHASED ASSETS. Except as
disclosed on Schedule 4.5 hereto, Seller has, and at the Closing Seller will
convey and transfer to Buyer, good, complete and marketable title to all of the
Purchased Assets, free and clear of all mortgages, liens, security interests,
encumbrances, pledges, leases, equities, claims, charges, restrictions,
conditions, conditional sale contracts and any other adverse interests. Except
as set forth on Schedule 4.5, all of the Purchased Assets are in the exclusive
possession and control of Seller and Seller has the unencumbered right to use
and sell to Buyer all of the Purchased Assets without interference from others.
The Purchased Assets constitute all the assets, properties, rights, privileges
and interests necessary for Buyer to own and operate the Business substantially
in the same manner as it has been conducted by Seller during the period
immediately preceding the execution of this Agreement.
(b) TANGIBLE ASSETS. Schedule 1.1(b) is a list of all of the
Tangible Assets used in the Business, other than any Tangible Asset the
replacement cost of which would be less than $1,000.00 and which is not of
material importance to Seller's operations. The Tangible Assets are in good
working order and condition, ordinary wear and tear excepted, have been
maintained in accordance with generally accepted industry standards, are
suitable for the uses for which they are being utilized in the Business and
comply with all requirements under applicable laws, regulations and licenses
which govern the use and operation thereof.
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(c) INTANGIBLE PROPERTY RIGHTS. The Intangible Property Rights
are the only material intangible property used by Seller in the Business, and
from and after the Closing Date, Buyer shall have the right to use all of the
Intangible Property Rights in the Business consistent with Seller's use of the
Intangible Property Rights in the Business. Seller owns, or holds adequate
licenses, or other rights to use, all of the Intangible Property Rights, such
use does not conflict with, infringe on or otherwise violate any rights of any
other person. Except as disclosed in Schedule 4.5, all of such licenses and
rights are transferable to Buyer without cost or liability to Buyer and will be
included in the Purchased Assets being sold to Buyer hereunder. Except as set
forth on Schedule 4.5, Seller has not granted, transferred or assigned any
right, license or interest in any of its Intangible Property Rights. In no
instance has the eligibility of any copyright to any material property included
in the Intangible Property Rights been forfeited to the public domain by
omission of any required notice or any other action. All personnel, including
employees, agents, consultants and contractors, who have contributed to or
participated in the conception and development of any of the Intangible Property
Rights on behalf of Seller either (i) in the case of any copyright, have been
party to a "work-for-hire" arrangement or agreement with Seller, in accordance
with applicable federal and state law, that has accorded Seller full, effective,
exclusive and original ownership of all United States copyrights thereby arising
or (ii) shall, prior to the Closing, have executed appropriate instruments of
assignment in favor of Seller as assignee that convey to Seller full, effective
and exclusive ownership of all Intangible Property Rights thereby arising.
Except as set forth in Schedule 4.5, Seller has not infringed, is not now
infringing and has not received notice of any infringement, on any patent, trade
name, trademark, service xxxx, copyright, trade secret, trade dress, design,
invention, technology, know-how, process or other proprietary right belonging to
any other person, firm or corporation, which infringement would have an adverse
effect on any of the Purchased Assets or the Business. To the best of Seller's
knowledge, there is no infringement by any other person of any Intangible
Property Right.
(d) LEASES. Schedule 4.5(d) is a list of each of the facilities
or real properties used in the Business. Schedule 4.5(d) also contains a list of
all leases under which Seller possesses or uses personal property in connection
with the conduct or operation of the Business. The personal property leases set
forth in Schedule 4.5(d) are sometimes collectively referred to as the "Personal
Property Leases." True, correct and complete copies of the real property leases
set forth in Schedule 4.5(d), the Real Property Leases and Personal Property
Leases (collectively, the "Leases") have been delivered to Buyer. Seller is not,
and as of the Closing Date will not be, in default, and no facts or
circumstances have occurred, or on or prior to the Closing will occur, which
through the passage of time or the giving of notice, or both, would constitute a
default, under any of the Leases. Subject to any consents required therefor, the
assignment of any of the Real Property Leases and the personal property leases
set forth in Schedule 4.5(d) shall not adversely affect Buyer's quiet enjoyment
and use, without disturbance, of all real and personal properties and assets
that are the subject of such leases. None of the Leases contains any provisions
which, after the Closing Date, would (i) hinder or prevent Buyer from continuing
to use any of the properties or assets which are the subject of the personal
property leases set forth in Schedule 4.5(d) in the manner in which they are
currently used or (ii) impose any additional costs (other than scheduled rental
increases) or additional burdensome requirements as a condition to their
continued use. Except as otherwise set forth in Schedule 4.5(d) hereto, none of
the Purchased Assets are held under, or used by Seller in connection with the
Business pursuant to, any lease or conditional sales contract.
(e) ACCOUNTS RECEIVABLE. Attached hereto as Schedule 4.5(e) are
(i) an accurate list of all accounts and notes
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receivable of Seller, including any accounts or notes receivable not reflected
in the June 30, 1997 balance sheet, and (ii) an aging of all such accounts and
notes receivable showing amounts due in 30-day aging categories. All such
accounts and notes receivable on such listing arose from, and all accounts and
notes receivable of Seller created between June 30, 1997 and the Closing will
have arisen from, the sale of Seller's products or the provision of services by
Seller in the ordinary course of business. The Seller has not received any
notice or knows of any counterclaim or set-off with respect to any such accounts
or notes receivable, or any facts or circumstances that would be the basis for
any such counterclaim or set-off, which is not reflected or taken into account
in the contractual allowance or bad debt reserves set forth in the June 30, 1997
balance sheet.
4.6 CONTRACTS, AGREEMENTS AND COMMITMENTS. Schedule 4.6 hereto
contains an accurate and complete list of all contracts, agreements, leases,
licenses and instruments to which Seller or Subsidiary is a party or is bound or
which relate to or affect any of the Purchased Assets or the Business. Schedule
4.6 includes, without limitation, all contracts and agreements and all leases,
licenses and instruments, which (i) grant a security interest or permit or
provide for the imposition of any lien, mortgage, security interest or other
encumbrance on, or provide for the disposition of, any of the Purchased Assets;
(ii) require the consent of any third party to the consummation by Seller of the
transactions contemplated by this Agreement, as noted on such schedule; (iii)
would restrict the use or disposition by Buyer after the Closing of any of the
Purchased Assets; or (iv) pertain to the sale or lease of CAD/RMS Products to
third parties (including the status of the contract, the contract price, the
amount collected to date and whether the CAD/RMS Product has been accepted.
True, correct and complete copies of all items so listed in Schedule 4.6 have
been furnished to Buyer. Each of such contracts, agreements, leases, licenses
and instruments so listed, or required to be so listed, in Schedule 4.6 is a
valid and binding obligation of Seller and/or Subsidiary and the other parties
thereto, enforceable in accordance with its terms, except as may be affected by
bankruptcy, insolvency, moratorium or similar laws affecting creditors' rights
generally and general principles of equity relating to the availability of
equitable remedies. Except as otherwise set forth in Schedule 4.6 hereto, there
have not been any defaults by Seller or Subsidiary or, to the best knowledge of
the Seller, defaults or any claims of default or claims of nonenforceability by
the other party or parties which, individually or in the aggregate, would have a
material adverse effect on Subsidiary, the Business or any of the Purchased
Assets, and there are no facts or conditions that have occurred or that are
anticipated to occur which, through the passage of time or the giving of notice,
or both, would constitute a default by Seller, or to the best knowledge of the
Seller, by the other party or parties, under any of such contracts, agreements,
leases, licenses and instruments or would cause a creation of a lien, security
interest or encumbrance upon any of the Purchased Assets or otherwise materially
and adversely affect Subsidiary, any of the Purchased Assets or the Business.
4.7 LABOR AND EMPLOYMENT AGREEMENTS; FRINGE BENEFIT PLANS.
(a) Schedule 4.7 sets forth the name of each director and officer
of Subsidiary and of each employee of Seller or Subsidiary who is engaged in the
Business, together with a description of all compensation and benefits that are
payable to such individuals as a result of their employment by or association
with Seller or Subsidiary. Schedule 4.7 includes a description of all employment
or personnel policies of Seller relating to vacation or other employee benefits.
(b) Schedule 4.7 hereto contains a list of any collective
bargaining or other labor, employment, deferred compensation, bonus, retainer,
consulting, or incentive agreement, plan or contract, and all written or other
personnel policies, of Seller or Subsidiary or to
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which Seller or Subsidiary is subject or bound. True, correct and complete
copies of any such agreements, plans, contracts and policies listed in Schedule
4.7 hereto have been furnished to Buyer. Except to the extent set forth in
Schedule 4.7, (i) there has been no strike or other work stoppage by, nor to the
best knowledge of Seller has there been any union organizing activity among, any
of the employees of Seller or Subsidiary; (ii) Seller and Subsidiary are in
compliance in all material respects with all applicable laws respecting
employment and employment practices, terms and conditions of employment and
wages and hours, and is not engaged in any unfair labor practice; and (iii)
there is no unfair labor practice complaint pending or, to the best knowledge of
the Seller, threatened against Seller or Subsidiary, nor, to the best knowledge
of the Seller, is there any factual basis for any such complaint.
(c) Schedule 4.7 hereto also contains a complete list of Seller's
and Subsidiary's Employee Plans. True, correct and complete copies or
descriptions of such Employee Plans have been delivered to Buyer. For purposes
of this Section 4.7, the term "Employee Plan" includes all past or present
plans, programs, agreements, arrangements, and methods of contribution or
compensation (including all amendments to and components of the same, such as a
trust with respect to a plan) maintained by Seller or Subsidiary or to which
Seller or Subsidiary has an obligation to contribute which provide any
remuneration or benefits, other than current cash compensation, to any current
or former employee of Seller or Subsidiary or to any other person who provides
services to Seller or Subsidiary. The term Employee Plan includes, but is not
limited to, pension, retirement, profit sharing, stock option, stock bonus, and
nonqualified deferred compensation plans and includes any Employee Plan that is
a multiemployer plan as defined in Section 3(37) of ERISA. The term Employee
Plan also includes, but is not limited to, disability, medical, dental, health
insurance, life insurance, incentive plans, vacation benefits, and fringe
benefits. Except as set forth on Schedule 4.7, none of the Employee Plans are
subject to the Employee Retirement Income Security Act of 1974, as amended
("ERISA") or are qualified under the Code. Except as set forth in Schedule 4.7,
all Employee Plans are now, and have always been, established, maintained and
operated in all material respect in accordance with all applicable laws
(including, but not limited to, ERISA and the Code) and all regulations and
governing guidelines promulgated thereunder and in accordance with their plan
documents. Each funded Employee Plan providing for payment of deferred
compensation (a "Qualified Plan") is and always has been qualified under Section
401 of the Code. The Internal Revenue Service has issued one or more
determination letters with respect to each Qualified Plan stating that each such
Qualified Plan is qualified under Section 401 of the Code and each trust
maintained in connection with each such Qualified Plan has been and is exempt
under Section 501 of the Code. Except as set forth in Schedule 4.7, there is no
unfunded liability for vested or nonvested benefits under any funded Employee
Plan, and all contributions required to be made to or with respect to each
Employee Plan have been completely and timely paid. All reports, forms and other
documents required to be filed with any governmental entity with respect to any
Employee Plan have been timely filed and, to the best knowledge of the Seller,
are accurate. There have been no filings with respect to any Employee Plan with
the Pension Benefit Guaranty Corporation ("PBGC"). No liability to the PBGC has
been incurred or is expected with respect to any Employee Plan except for
insurance premiums, and all insurance premiums incurred or accrued up to and
including the Closing Date have been or will be timely paid by Seller. No amount
is, and as of the Closing Date no amount will be, due or owing from Seller or
Subsidiary to any "multiemployer plan" (as defined in Section 3(37) of ERISA) on
account of any withdrawal therefrom. There has been no event or condition, nor
is any event or condition expected, that would present a risk of termination of
any Employee Plan, or which would constitute a "reportable event" within the
meaning of Section 4043 of ERISA and the regulations and
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interpretations thereunder. There has been no merger, consolidation, or transfer
of assets or liabilities (including, but not limited to, a split-up or
split-off) with respect to any Employee Plan. There is and there has been no
actual or, to the best knowledge of the Seller, anticipated, threatened or
expected litigation or arbitration concerning or involving any Employee Plan. No
complaints to or by any governmental entity have been filed or, to the best
knowledge of the Seller, have been threatened or are expected with respect to
any Employee Plan. No Employee Plan or any other person has any liability to any
plan participant, beneficiary or other person under any provision of ERISA, the
Code or any other applicable law by reason of any action or failure to act in
connection with any Employee Plan. There has been no prohibited transaction as
described in Section 406 of ERISA and Section 4975 of the Code with respect to
any Employee Plan. No Employee Plan provides medical benefits to one or more
former employees (including retirees), other than benefits required to be
provided under Section 4980B of the Code. There is no contract, agreement or
benefit arrangement covering any employee of Seller or Subsidiary, the payments
under which, individually or collectively, would constitute an "excess parachute
payment" under Section 280G of the Code.
4.8 CONFLICTS. Except as described on Schedule 4.6 hereto, neither
the execution and delivery of, nor the consummation of the transactions
contemplated by, this Agreement or the Related Agreements to which Seller is a
party will or could result in any of the following: (i) a default or an event
that, with notice or lapse of time, or both, would be a default, breach or
violation of the respective charter, bylaws or other governing instruments of
Seller or Subsidiary, or any contract, lease, license, franchise, promissory
note, conditional sales contract, commitment, indenture, mortgage, deed of
trust, security or pledge agreement, or other agreement, instrument or
arrangement to which the Seller or Subsidiary is a party or is bound which
relates to the Business or which affects any of the Purchased Assets; (ii) the
termination of any contract, lease, agreement, or commitment, or the
acceleration of the maturity of any indebtedness or other obligation of the
Seller or Subsidiary; (iii) the creation or imposition of any lien, charge or
encumbrance on any of the respective assets or properties of the Seller or
Subsidiary, including any of the Purchased Assets; (iv) a violation or breach of
any writ, injunction or decree of any court or governmental instrumentality to
which the Seller or Subsidiary is a party or is bound or which affects any of
their respective properties or any of the Purchased Assets or the Business; (v)
a loss or adverse modification of any license, franchise, permit, other
authorization or right (contractual or other) to operate, granted to or
otherwise held by Seller or Subsidiary or used in the Business, which would have
a material adverse effect on the Business or Buyer; or (vi) the cessation or
termination of any other business relationship or arrangement between Seller or
Subsidiary and any third party that is material to the Business, or its
operating results, condition (financial or other) or prospects or any of the
Purchased Assets. Except as set forth in Schedule 4.6 hereto, the Seller does
not know of any business relationship or arrangement between it or Subsidiary
and any third party (governmental or other) that is material to the Business,
its operating results, condition or prospects and that will cease or is likely
to be terminated as a result of the consummation of the transactions
contemplated by this Agreement.
4.9 INSURANCE. Schedule 4.9 contains an accurate list (including
liability limits, deductibles and coverage exclusions) of all policies of
insurance maintained by or on behalf of Seller or Subsidiary in connection with
the Business as protection for the Purchased Assets and the Business. Except as
set forth in Schedule 4.9 hereto, all of such policies are now in full force and
effect and policies covering the same risks and in substantially the same
amounts have been in full force and effect continuously since inception. Neither
Seller nor Subsidiary has received any notice
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of cancellation or material amendment of any such policies; no coverage
thereunder is being disputed; and all material claims thereunder have been filed
in a timely fashion.
4.10 TAXES AND TAX RETURNS. Each of Seller and Subsidiary has duly
filed all tax reports and returns which are required by law to be filed by it
and has duly paid all foreign, federal, state and local taxes due or claimed to
be due from such authorities, and there are no assessments or claims for payment
of taxes now pending or, to the best knowledge of the Seller, threatened, nor is
any audit of Seller's or Subsidiary's records presently being made by any taxing
authority. Each of Seller and Subsidiary has properly withheld and paid, or
accrued for payment when due, to appropriate state and/or federal authorities,
all amounts required to be withheld from its employees' wages, salaries and
other compensation and has also paid all employment taxes as required under
applicable laws.
4.11 COMPLIANCE WITH LAW/PERMITS.
(a) Seller and Subsidiary are in compliance with all, and are not
in violation of any, law, ordinance, order, decree, rule or regulation of any
governmental agency or authority, the violation of or noncompliance with which
could reasonably be expected to have a material adverse effect on the Business
or any of the Purchased Assets. Without limiting the generality of this Section
4.11(a), there are no unresolved (i) proceedings or investigations instituted
or, to the best knowledge of the Seller, threatened, by any such governmental
authorities against Seller or Subsidiary relating to the Business, or (ii)
citations issued or, to the best knowledge of the Seller, threatened against
Seller, Subsidiary or the Business by any governmental authorities, or (iii)
other notices of deficiency or charges of violation brought or, to the best
knowledge of the Seller, threatened against Seller, Subsidiary or the Business,
including under any federal or state regulation or otherwise, which could
reasonably be expected to have, individually or in the aggregate, a material
adverse effect on the Business or any of the Purchased Assets, or interfere with
the maintenance, or the transfer or reissuance to Buyer, of the permits,
licenses, franchises, certificates, authorizations or any right to operate held
by Seller or Subsidiary; and, to the best knowledge of Seller, there are no
facts or circumstances upon which any such proceedings, investigations,
citations, notices, disallowances or charges may be instituted, issued or
brought hereafter.
(b) Schedule 4.11(b) contains a true, correct and complete list
of all governmental licenses, permits, authorizations, franchises, or
certificates or rights (contractual or other) to operate the Business, that are
held by Seller or Subsidiary (collectively, "Licenses and Permits"). Such
Licenses and Permits are the only licenses, permits, authorizations, franchises,
certificates and rights to operate required for operation of the Business, as it
has been conducted since its inception, and all of such Licenses and Permits are
in full force and effect at the date hereof and will be as of the Closing. The
Seller has provided Buyer with true, correct and complete copies of each License
and Permit listed in Schedule 4.11(b). Seller and Subsidiary are in compliance
in all material respects with all conditions or requirements imposed by or in
connection with such Licenses and Permits and with respect to its use of the
Purchased Assets and operation of the Business, and neither Seller nor
Subsidiary has received any notice, nor does Seller have any knowledge or reason
to believe, that any governmental authority intends to cancel, terminate or
materially modify any of such Licenses or Permits or that valid grounds for any
such cancellation, termination or material modification currently exist, except
that, by reason of change of ownership of the Business, certain
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of the Licenses and Permits listed in Schedule 9.1 will have to be transferred
or reissued to Buyer, and certain of such Licenses and Permits will have to be
reapplied for by Buyer.
4.12 LITIGATION AND PROCEEDINGS. There is neither (a) any action,
suit, proceeding or investigation, nor (b) any counter or cross-claim in an
action brought by or on behalf of the Seller or Subsidiary, whether at law or in
equity, or before or by any governmental department, commission, board, bureau,
agency or instrumentality, domestic or foreign, or before any arbitrator of any
kind, that is pending or, to the best knowledge of the Seller, threatened,
against Seller or Subsidiary, which (i) could reasonably be expected to affect
adversely Seller's ability to perform its obligations under this Agreement or
the Related Agreements or complete any of the transactions contemplated hereby
or thereby, or (ii) involves the reasonable possibility of any judgment or
liability, or which may become a claim, against Buyer, the Business, the
Purchased Stock or any of the Purchased Assets prior to or subsequent to the
Closing Date. Neither Seller nor Subsidiary is subject to any judgment, order,
writ, injunction, decree or award of any court, arbitrator or governmental
department, commission, board, bureau, agency or instrumentality having
jurisdiction over Seller, any of its assets, Subsidiary or the Business, which
may reasonably be expected to affect the Business.
4.13 CERTAIN TRANSACTIONS. Except as set forth in Schedule 4.13 ,
there are no existing or pending transactions, nor are there any agreements or
understandings, with any shareholders, officers, directors, or employees of
Seller or Subsidiary, or any person or entity affiliated with any of them
(collectively, "Affiliates"), relating to, arising from or affecting the
Business, or any of the Purchased Assets, including, without limitation, any
transactions, arrangements or understandings relating to the purchase or sale of
goods or services, the lending of monies, or the sale, lease or use of any of
the Purchased Assets, with or without adequate compensation, in any amount
whatsoever. Except as set forth in Schedule 4.13 , no existing or former
shareholder, director, officer or employee of Seller or Subsidiary has any
claims against or disputes with Seller which could result in the imposition of
any liability or judgment against the Business or any of the Purchased Assets.
4.14 ENVIRONMENTAL AND SAFETY MATTERS. Seller and Subsidiary have
complied with, and the operation of the Business and the use of the Purchased
Assets are in compliance with, in all material respects, all federal, state,
local and regional statutes, laws, ordinances, rules, regulations and orders
relating to the protection of human health and safety, natural resources or the
environment, including, but not limited to, air pollution, water pollution,
noise control, on-site or off-site hazardous substance discharge, disposal or
recovery, toxic or hazardous substances, training, information and warning
provisions relating to toxic or hazardous substances, and employee safety
relating to or adversely affecting any of the Purchased Assets (collectively the
"Environmental Laws"); and no notice of violation of any Environmental Laws or
of any permit, license or other authorization relating thereto has been
received, nor is any such notice pending or, to the best knowledge of the
Seller, threatened.
4.15 INTELLECTUAL PROPERTY.
(a) Attached hereto as Schedule 4.15 is an accurate list and
description of all patents, patent applications, patent licenses, copyrights,
copyright licenses, trademarks, trademark applications and trademark licenses,
and other trade secrets, know-how or intellectual property rights (the
"Intellectual Property") owned, held, utilized or applied for by Seller in
connection with the
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Business, other than the "SCC" and "SCC Communications" trademarks, and other
than as set forth on Schedule 1.1(e). Except as set forth on Schedule 4.15
hereto:
(i) Seller owns all right, title and interest in and to all
Intellectual Property used in or necessary for, and as to Third Party Technology
(as defined below) has sufficient rights necessary for, the conduct of the
Business as presently conducted, or as planned to be conducted, including,
without limitation, all Intellectual Property developed or discovered in
connection with or contained in or related to the CAD/RMS Products (as defined
below), free and clear of all liens, mortgages, charges, pledges, claims and
encumbrances (including without limitation any distribution rights and royalty
rights) (including Third Party Technology, the "Seller Rights").
(ii) Solely as to Third Party Technology (as defined below),
the representations in Section 4.15 are limited to Seller's interest pursuant to
the Third Party Licenses (as defined below), all of which are valid and
enforceable and in full force and effect. "Third Party Licenses" means all
licenses and other agreements with third parties relating to any Intellectual
Property or products that Seller is licensed or otherwise authorized by such
third parties to use, market, distribute or incorporate into products marketed
and distributed by Seller in connection with the Business. "Third Party
Technology" means all Intellectual Property and products owned by third parties
and licensed pursuant to Third Party Licenses. Notwithstanding the foregoing,
Third Party Technology shall not include any "off-the-shelf" software program if
the use of such program by Seller is in accordance with any applicable shrink
wrap license and no portion of such program is distributed or licensed by Seller
to third parties or incorporated into products distributed by Seller or licensed
to third parties.
(iii) For purposes of this Agreement, the term "CAD/RMS
Products" shall mean the computer assisted dispatch and records management
systems and related products developed by the business, including any
Intellectual Property related thereto.
(iv) All of the Intellectual Property which is in the public
domain and is used in or necessary for the conduct of Seller's business as
presently conducted or contemplated is listed on Schedule 4.15, attached hereto.
(b) Except as set forth in Schedule 4.15, Seller has the
exclusive right to use, sell, license and dispose of, and has the right to bring
actions for infringement of, all Seller Rights, other than Third Party
Technology.
(c) Schedule 4.15 contains an accurate and complete description
of: (i) all patents, trademarks, servicemarks (with separate listings of
registered and unregistered trademarks and servicemarks), tradenames, and
registered copyrights in or related to the Seller Rights, all applications and
registration statements therefor, and a list of all licenses and other
agreements relating thereto.
(d) All of Seller's copyright registrations related to any and
all of Seller's copyrights are valid and in full force and effect. If the
copyright has not been registered, then it is not part of the foregoing
representation. Seller has valid copyrights in all material copyrightable
material whether or not registered with the U.S. copyright office, including all
copyrights in all
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CAD/RMS Products containing material copyrightable material. Consummation of the
transactions contemplated hereby will not alter or impair the validity of any
copyrights or copyright registrations.
(e) No claims have been asserted against Seller by any person
challenging Seller's use or distribution (including manufacture, marketing
license, or sale) of any Seller Right or products utilized by Seller (including,
without limitation, the CAD/RMS Products and Third Party Technology) or
challenging or questioning the validity or effectiveness of any license or
agreement relating thereto (including, without limitation, the Third Party
Licenses). There is no valid basis for any claim of the type specified in this
Section 4.15(e).
(f) The execution, delivery and performance of this Agreement and
the consummation of the Merger and the transactions contemplated hereby and by
the other Transaction Documents will not (i) breach, violate or conflict with
any instrument, agreement or other right governing any Seller Right or portion
thereof, (ii) cause the forfeiture or termination, or give rise to a right of
forfeiture or termination, of any Seller Right or portion thereof, (iii) in any
way impair the right of Seller to use (including distribute, manufacture,
marketing, license, sale or other disposition) of any Seller Right or portion
thereof, or (iv) give rise to any right to bring any action for infringement of,
any Seller Right or any portion thereof.
(g) Except as set forth on Schedule 4.15, there are no royalties,
honoraria, fees or other payments that would be payable by Seller to any person
by reason of the ownership, use, license, sale, distribution, or disposition of
any Seller Right, other than sales commissions that would be payable in the
ordinary course of business
(h) No Seller Right and no use by Seller of any Seller Right in
its prior, current or contemplated business (including distribution,
manufacture, marketing, license or sale), violates any rights of any third
party, including (i) infringement of or misappropriation of Intellectual
Property, (ii) unfair competition, (iii) defamation, (iv) contractual rights, or
(v) rights of privacy or publicity. Solely with respect to claims of
infringement of a third party patent or unregistered trademark or infringement
of Third Party Technology, the foregoing representations in this Section are
made to the best knowledge of Seller.
(i) To the best knowledge of Seller, no third party is violating,
infringing, or misappropriating any Seller Right or contract of Seller.
(j) Seller is not in default under or in breach or violation of,
nor, is there, to the best of Seller's knowledge, any valid basis for any claim
of default by Seller under, or breach or violation by Seller of, any contract,
commitment or restriction relating to any Seller Right, including any Third
Party License (each, an "Intellectual Property Contract"). No other party is in
default under or in breach or violation of, nor, to the best of Seller's
knowledge, is there any valid basis for any claim of default by any other party
under or any breach or violation by any other party of, any Intellectual
Property Contract. Each Intellectual Property Contract is valid, binding, in
full force and effect, and enforceable by Seller in accordance with its terms.
To the best knowledge of Seller, no party to any Intellectual Property Contract
intends to cancel, withdraw, modify or amend such contract.
(k) No shareholder or employee of Seller, nor any of their
respective affiliates, has any right, title or interest in or to any Seller
Right, other than rights pertaining to Third
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Party Technology obtained from the third party licensor, and other than a
nonexclusive right to use CAD/RMS Products pursuant to Seller's standard
end-user license terms.
(l) Except as set forth in Schedule 4.15: (i) no third party
(including any OEM or site license customer) has any right to manufacture,
reproduce, distribute, sell, sublicense, market or exploit any of the Seller
Rights or any adaptations, translations, or derivative works based on the Seller
Rights, or any portion thereof, other than rights pertaining to Third Party
Technology obtained from the third party licensor; (ii) Seller has no
agreements, contracts or commitments that provide for the manufacture,
reproduction, distribution, sale, sublicensing, marketing, development,
exploitation, or supply by Seller of any Seller Right or any adaptation,
translation, or derivative work based on the Seller Rights, or any portion
thereof or otherwise material to the continued business of Seller; (iii) Seller
has not granted to any third party any exclusive rights of any kind with respect
to any of the Seller Rights, including territorial exclusivity or exclusivity
with respect to particular versions, implementations or translations of any of
the Seller Rights; and (iv) Seller has not granted any third party any right to
market any product utilizing any Seller Right under any "private label"
arrangements pursuant to which Seller is not identified as the source of such
goods. Each document or instrument identified pursuant to this Section is listed
in Schedule 4.15 and true and correct copies of such documents or instruments
have been furnished to Buyer. Except with respect to the rights of third parties
to the Third Party Technology, no third party has any right to manufacture,
reproduce, distribute, sublicense, market or exploit any works or materials of
which any of the Seller Rights are a derivative work.
(m) Each CAD/RMS Product: (i) substantially complies with all
specifications set forth therefor in any contract, agreement, advertisement or
other promotional material for such products and with all other warranty
requirements, other than bugs or fixes required or expected in the ordinary
course of business as historically experienced in the Business; (ii) has been
created in a professional manner considering its present stage of development;
and (iii) can be recreated from its associated source code without undue burden.
(n) All designs, drawings, specifications, source code, object
code, documentation, flow charts and diagrams incorporating, embodying or
reflecting any Seller Rights, other than Third Party Technology, at any stage of
their development were written, developed and created solely and exclusively by
employees of Seller without the assistance of any third party or entity.
(o) Seller has not knowingly altered its data, or any Seller
Rights, in a manner that may damage data, whether stored in electronic, optical,
or magnetic or other form.
(p) Seller has furnished Buyer with true and accurate copies of
all end user documentation relating to the use, maintenance or operation of each
CAD/RMS Product.
(q) Seller has not disclosed or otherwise dealt with any aspect
of any Seller Rights, other than Third Party Technology, that would constitute a
trade secret if not injected into the public domain or if treated as secret, in
such a manner as to cause such aspect not to constitute a trade secret.
(r) No employee of Seller is in violation of any term of any
employment contract, patent disclosure agreement or any other contract or
agreement relating to the relationship
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of any such employee with Seller or, to Seller's best knowledge, any other party
because of the nature of the business conducted by Seller or proposed to be
conducted by Seller. Neither the execution or delivery of any of the foregoing
agreements, nor the carrying on of Seller's business as employees by such
persons, nor the conduct of Seller's business as currently anticipated, will
conflict with or result in a breach of the terms, conditions or provisions of or
constitute a default under any contract, covenant or instrument under which any
of such persons is obligated; provided that, solely as the foregoing
representation relates to any agreement between an employee and any party other
than Seller, such representation is limited to Seller's best knowledge.
(s) No product liability or warranty claims have been
communicated to or threatened against Seller nor, to the best of Seller's
knowledge, is there any specific situation, set of facts or occurrence that
provides a basis for such claim.
(t) Each employee or contractor of Seller at any time engaged in
the Business has executed and delivered to the Seller a proprietary information
and invention assignment agreement in the form provided to the Buyer.
4.16 OPERATIONAL RESTRICTIONS. Neither the Seller nor Subsidiary is a
party to any undisclosed agreement or instrument or subject to any undisclosed
charter or other corporate restriction or any undisclosed judgment, order, writ,
injunction, decree, or order, which materially adversely affects, or in the
future could adversely affect, the Business, or any of the Purchased Assets or
the ability of Seller to transfer the Purchased Assets to Buyer pursuant to the
terms of this Agreement. The Seller does not know knows of any facts,
circumstances or events which result, or with the passage of time may result, in
any material adverse change in the condition (financial or other), operating
results, business or prospects of the Business or which might adversely affect
any of the Purchased Assets.
4.17 ILLEGAL OR IMPROPER PAYMENTS. To the best knowledge of the
Seller, neither Seller, Subsidiary nor any of their respective directors,
officers or employees have, in connection with the operation of the Business:
(i) made any illegal political contribution from assets; (ii) been involved in
the disbursement or receipt of corporate funds outside normal internal control
systems of accountability; (iii) made or received payments, whether direct or
indirect, to or from government officials, employees or agents for purposes
other than the satisfaction of lawful obligations, or been involved in any
transaction that has or had as its intended effect the transfer of funds or
assets of Seller or Subsidiary other than for the satisfaction of lawful
obligations of Seller or Subsidiary; or (iv) been involved in the willfully
inaccurate recording of payments and receipts on the books of Seller or
Subsidiary or any other matter of a similar nature involving disbursements of
funds or assets, and they are not aware of any material inaccurate recording of
any payment or receipt on the books of Seller or Subsidiary.
4.18 TITLE TO PURCHASED STOCK. Seller has, and at the Closing Seller
will convey and transfer to Buyer, good, complete and marketable title to all of
the Purchased Stock, free and clear of all mortgages, liens, security interests,
encumbrances, pledges, leases, equities, claims, charges, restrictions,
conditions, conditional sale contracts and any other adverse interests. There
are no outstanding options or warrants to purchase, nor any securities
convertible or exercisable into, shares of capital stock of Subsidiary, nor are
there any agreements, commitments or understandings, oral or written, providing
for the grant of, subscriptions, options or other rights to purchase or
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receive, or obligating Subsidiary to issue, sell or otherwise transfer or to
repurchase or redeem, any shares of capital stock of Subsidiary.
4.19 BULK SALE NOTICES. Seller represents and warrants that the
Purchased Assets will bet transferred to the Buyer free and clear of any
encumbrances or transferee liability that may be imposed by the Bulk Sales Law
or such similar laws.
4.20 REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Seller contained herein and the materials contained in the
Schedules attached hereto do not contain any statement of a material fact that
was untrue when made nor, to the best knowledge of Seller, do they omit any
material fact necessary to make the information contained therein not
misleading. For purposes of this Section 4, wherever there is a reference to
"knowledge" or "best knowledge" of Seller, Seller will be charged with knowledge
of facts, circumstances, conditions, occurrences and events known to any of the
individuals named on Schedule 4.20 attached hereto. Information in any one
Schedule delivered pursuant hereto need not be repeated in any other Schedule;
provided, that an appropriate specific cross-reference is made in the other
Schedule to such information contained elsewhere in the Schedules.
5. REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer hereby represents and
warrants to the Seller, as of the date hereof and again as of the Closing Date,
as follows:
5.1 ORGANIZATION AND RELATED MATTERS. a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware. Buyer has the requisite corporate power and authority to carry on its
business as now being conducted and to execute and deliver Agreement and the
Related Agreements and each of the agreements referenced herein to which Buyer
is a party.
5.2 NECESSARY ACTIONS; BINDING EFFECT. Prior to the Closing Date,
Buyer will have taken all corporate action necessary to authorize the execution
and delivery of, and the performance of its obligations under, this Agreement
and the Related Agreements to which a party. This Agreement and the
Related Agreements constitutes, and upon their execution and delivery each of
the Related Agreements will constitute, valid obligations of Buyer that are
legally binding on and enforceable against Buyer in accordance with their
respective terms, except as such enforceability may be limited by (i)
bankruptcy, insolvency, moratorium or other similar laws affecting creditors'
rights, and (ii) general principles of equity relating to the availability of
equitable remedies.
5.3 NO CONFLICTS. Neither the execution and delivery, nor the
performance of, this Agreement or the Related Agreements by Buyer will result in
any of the following: (i) a default or an event that, with notice or lapse of
time, or both, would constitute a default, breach or violation of the Articles
of Incorporation or Bylaws of Buyer; or (ii) a violation or breach of any writ,
injunction or decree of any court or governmental instrumentality to which Buyer
is a party or by which any of its properties are bound or a violation of any
laws or regulations applicable to Buyer, where the violation would have a
material adverse effect on Buyer.
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6. CONDUCT OF BUSINESS PENDING THE CLOSING. Between the date hereof and
the Closing, and except as otherwise consented to by Buyer in writing, or
permitted pursuant to Section 7 below, Seller covenants as follows:
6.1 FULL ACCESS. Subject to the provisions of Section 14 below,
Seller shall afford to Buyer, its counsel, accountants, lenders and investors
(and their respective accounting and legal and other authorized
representatives), upon reasonable prior notice by Buyer of the identity of such
representatives, full access during normal business hours to all properties,
personnel and information of Seller involved with the Business, including,
without limitation, financial statements and records, leases and agreements and
tax returns of Seller, to determine that the purchase of the Purchased Assets
can be consummated in accordance with applicable statutes and regulations, to
verify the accuracy of the representations and warranties made herein and to
fully investigate the affairs of the Business as fully as Buyer may desire.
Seller shall furnish to Buyer and its representatives such information and data
concerning the Purchased Assets and the operation of Business as Buyer or any
such representative shall reasonably request.
6.2 CONDUCT OF SELLER'S BUSINESS. Unless Buyer gives its prior
written consent for actions to be taken to the contrary, from the date of
execution of this Agreement and until the Closing or termination of this
Agreement, whichever first occurs, Seller shall:
(a) OPERATION OF BUSINESS. Operate and conduct the Business
diligently and only in the ordinary course of business consistent with past
practices. Seller shall not: (i) incur any new indebtedness on behalf of the
Business; (ii) increase the compensation or benefits of any employee,
independent contractor or agent of the Business, or adopt or amend any
commission plan or arrangement or any employee benefit plan or arrangement of
any type, affecting any employee, independent contractor or agent of the
Business, which results or may result in an increase in costs or liabilities
thereunder above those existing on the date hereof; or (iii) lend or advance any
sum or extend credit to any employee, director or shareholder of the Business or
any of their respective affiliates;
(b) VENDORS. Use commercially reasonable efforts to retain the
services of all vendors, suppliers, manufacturers, agents and consultants used
in the Business, commensurate with the requirements of the Business;
(c) INSURANCE. Maintain all insurance polices set forth in
Schedule 4.9, consistent with past practices and, unless comparable insurance is
substituted therefor, not take any action to terminate or modify, nor permit the
lapse or termination of, the present insurance policies and coverages of Seller
as set forth in Schedule 4.9 hereto;
(d) LAWSUITS, CLAIMS. Promptly notify Buyer of, and diligently
defend against, all lawsuits, claims, proceedings or investigations that are, or
which any officers of the Seller, as a result of events or circumstances
actually known to them, has reason to believe may be, threatened, brought,
asserted or commenced against Seller or any of its shareholders, officers or
directors, involving or affecting in any way the Business, any of the Purchased
Assets or the transactions contemplated hereby; and not settle any action or
proceeding which would materially adversely affect the Business or any of the
Purchased Assets or the consummation of the transactions contemplated hereby;
and not release, settle, compromise or relinquish any claims, causes of action
or rights of the Business involving more than $5,000 individually or $15,000 in
the aggregate which
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Seller may have against any other persons;
(e) CERTAIN CHANGES. Not sell or otherwise dispose, or enter into
any agreement for the sale, of any of the Purchased Assets, except for sales of
inventory and obsolete equipment in the ordinary course of business and
consistent with past practices, and not permit or allow, or enter into any
agreements providing for or permitting, any of the Purchased Assets to be
subjected to any mortgage, security interest, pledge, option, lien, charge or
encumbrance ;
(f) CONDITION OF ASSETS. Maintain in good working order and
condition, ordinary wear and tear excepted, and in compliance in all material
respects with all applicable laws and regulations, all of the Purchased Assets;
(g) AGREEMENTS AND COMMITMENTS. Observe and perform, in all
material respects, all terms, conditions, covenants and obligations contained in
all existing agreements between Seller and third parties the violation of which
would have, individually or in the aggregate, a material adverse effect on the
Business or any of the Purchased Assets; not take any action which would cause a
breach or violation of or default under any material agreement, lease, contract,
or other written instrument, commitment or arrangement, or under any License or
Permit, judgment, writ or order, applicable to or affecting the Business or any
of the Purchased Assets, and promptly notify Buyer in writing of the occurrence
of any such breach or default; and not enter into any transaction with any
shareholder, director or officer or any person or entity related to or
affiliated with any Selling Party;
(h) CONSENTS; COMPLIANCE WITH LAWS. Use its best efforts to
obtain and maintain all consents, assignments or approvals of, and Licenses and
Permits granted by, governmental authorities and agencies and other third
parties, in form and substance reasonably satisfactory to Buyer, the absence or
loss of which would have a material adverse effect on the Business or any of the
Purchased Assets either prior to or following the Closing; and not take any
action which would result in a violation of or the noncompliance with any laws,
regulations, consents or approvals applicable to the Business or any of the
Purchased Assets, where such violation or noncompliance could have a material
adverse effect on the Business or any of the Purchased Assets, or result in the
incurrence of any material liability against the Business or any of the
Purchased Assets or in the revocation, modification or loss of any License or
Permit or other right needed for the operation of the Business as presently
conducted by Seller;
(i) TAXES. Pay all federal, state, local and foreign taxes
assessed against Seller, the Business or any of the Purchased Assets, when due,
and in any event prior to the imposition or assessment of any liens against the
Business or any of the Purchased Assets, unless Seller is contesting such taxes
or the imposition of any such liens in good faith, it being understood that
not assuming any liability for such taxes and that Seller shall cause
any such liens to be removed prior to the Closing;
(j) CORPORATE MATTERS. No change or amendment shall be made in
the Articles of Incorporation, Bylaws or other governing instruments of Seller
or in the ownership of the outstanding capital stock or other equity interests
of Seller in a manner which could interfere with the consummation of the
transactions contemplated by this Agreement, nor shall Seller terminate or
modify, or take any actions which it has reason to believe would result in
termination or
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modification of, any of the material agreements, contracts, leases, licenses or
rights included in the Purchased Assets;
(k) LIABILITIES AND EXPENSES. Not create or incur (whether as
principal, surety or otherwise) any actual or contingent liabilities or expenses
of the Business other than liabilities and expenses incurred in the ordinary
course of business consistent with past practices.
6.3 FURNISHING OF CERTAIN INFORMATION. If requested by Buyer, Seller
(i) shall make, or cause to be made, available to Buyer true, correct and
complete copies of the historical financial statements of the Business for any
periods prior to the Closing Date and such other information concerning Seller
or the Business as Buyer may request; (ii) shall permit Buyer's independent
public accountants to have access to the books and records of the Business so
that any unaudited historical financial statements and other financial
information of the Business and Subsidiary, if any, can be reviewed or audited;
and (iii) shall permit such financial statements and other information
concerning the Business to be disclosed in any public filing by Buyer under or
pursuant to the Securities Act or the Securities Exchange Act of 1934, as
amended ("Securities Filings"). In addition, the Seller shall use commercially
reasonable efforts to cause Seller's independent public accountants to provide
such information and assistance, including the execution and delivery of
opinions and consents with respect to the historical financial statements of the
Business, as may be required by Buyer for inclusion in any such Securities
Filings, and the reasonable out-of-pocket expenses of the Seller and such
accountants in connection therewith shall be paid by Buyer, provided the
incurring of such expenses has been approved in advance and in writing by Buyer.
Disclosure of such financial statements and information furnished hereunder in
any Securities Filing shall not constitute a breach or violation of the
confidentiality provisions of Section 14 of this Agreement.
7. OBLIGATIONS PENDING AND FOLLOWING THE CLOSING.
7.1 TERMINATION OF SECURITY INTERESTS AND LIENS. At no cost or
expense to Buyer, Seller shall cause, as of the Closing Date, all security
interests, liens, claims, encumbrances and adverse interests to which any of the
Purchased Assets are subject (other than those securing any of the Assumed
Obligations) to be terminated and all indebtedness or obligations secured
thereby (other than the Assumed Obligations) to be paid.
7.2 CONSENTS. Except as may otherwise be agreed by the parties, each
party to this Agreement shall use commercially reasonable efforts to obtain or
cause to be obtained at the earliest practicable date, all consents, approvals
and Licenses and Permits, if any, which such party requires to permit it to
consummate the transactions contemplated hereby without violating any agreement,
contract, instrument or applicable law or regulation or any License or Permit to
which it is a party or to which it or its assets are subject. The parties hereto
shall cooperate with each other in their efforts to obtain all such consents,
approvals and Licenses and Permits.
7.3 FURTHER ASSURANCES. Each party hereto shall execute and deliver,
both before and after the Closing, such instruments and take such other actions
as the other party or parties, as the case may be, may reasonably request in
order to carry out the intent of this Agreement or to better evidence or
effectuate the transactions contemplated herein.
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7.4 NOTICE OF BREACH. Each party to this Agreement will notify the
other parties of the occurrence of any event, or the failure of any event to
occur, that results in or constitutes a breach by it of any representation or
warranty or a failure by it to comply with or fulfill any covenant, condition or
agreement contained herein, within two (2) business days after learning of such
breach or failure.
7.5 EXCLUSIVITY/OTHER OFFERS. Unless and until this Agreement has
been terminated in accordance with Section 12 below, the Seller or its
respective representatives, agents, officers, directors, shareholders, partners
or employees, will not solicit or accept offers from, provide information or
assistance to, or negotiate or enter into any agreement or understanding
(written or oral) with, any other person or entity regarding (i) the sale,
merger or reorganization of Seller, where such transaction does not contemplate
the earlier consummation of the transactions set forth in this Agreement; (ii)
the sale or other disposition of, or the granting of any security interest, lien
or encumbrance on, any of the Purchased Assets; or (iii) any other transaction
which would cause or result in any change, other than of an immaterial nature,
in or adversely affect the Business or any of the Purchased Assets or otherwise
interfere with the consummation of the transactions contemplated herein.
7.6 EMPLOYEES.
(a) Seller hereby authorizes Buyer to offer employment to any or
all of its employees associated with the Business, conditioned on the
consummation of the sale of the Purchased Assets pursuant hereto; and waives any
rights Seller may have to prohibit such employees from being employed by Buyer;
(b) Seller will use its best efforts to retain all current
employees of the CAD/RMS division during the transition period, including
resolution of stock option issues;
(c) Seller will not solicit any current employees of the CAD/RMS
division who are offered employment by Buyer for a period of one year after the
Closing Date, without the prior written consent of Buyer; and
(d) Buyer shall offer employment to each of the employees of the
Business listed on Schedule 7.6 hereto.
7.7 TAXES. Seller shall pay all taxes (other than income taxes of
Buyer) of any kind or nature arising from (i) the conduct of Seller's business
or operations, whether prior to or after the Closing Date, and (ii) the
consummation of the transactions contemplated hereby, including, without
limitation, all sales, use or similar taxes, if any, that may arise from or be
assessed by reason of the sale of the Purchased Assets by Seller to Buyer. If
any taxes required under this Section 7.7 to be borne by Seller are assessed
against Buyer, Buyer shall notify Seller in writing promptly thereafter and
Seller shall be entitled to contest, in good faith, such assessment or charge.
Notwithstanding the foregoing, Buyer may, but shall not be obligated to, pay any
such taxes assessed against it but payable by Seller pursuant hereto, if Buyer's
failure to do so, in the reasonable judgment of Buyer, could result in the
imposition of a lien or attachment on any of the Purchased Assets or any other
assets of Buyer or would constitute a violation of any agreement to which Buyer
is subject, or if Seller fails to contest such assessment or charge in good
faith. In the event Buyer
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pays any taxes which pursuant hereto are required to be borne by Seller, Buyer
shall be entitled to reimbursement thereof from Seller, on demand.
7.8 SCHEDULE OF ACCOUNTS RECEIVABLE. At the Closing, Seller shall
deliver or cause to be delivered to Buyer a detailed schedule of all unpaid
accounts receivable of Seller as of the close of business on June 30, 1997. This
schedule shall set forth all of the accounts receivable of Seller outstanding as
of the end of such day, together with an aging thereof setting forth the amounts
due in respect of such receivables in 30-day aging categories up to 180 days.
The Seller represents and warrants that the schedule to be delivered pursuant to
this Section 7.8 shall be a true, correct and accurate representation of the
facts set forth in such schedule.
7.9 ACCOUNTS AND NOTES RECEIVABLE COLLECTIONS. In the event the
Seller receives any payment after the Closing of or in respect of any accounts
or notes receivable included in the Purchased Assets, such Selling Party shall
promptly deliver such payment to Buyer, after subtracting from the amount of
such payment any amounts paid by Seller on behalf of Buyer in payment of
accounts payable of the Business following July 1, 1997. The Seller further
agrees to cooperate with Buyer in notifying account obligors of the transfer of
such accounts and notes receivable and instructing them to make all payments in
respect thereof following the Closing to Buyer.
7.10 SUBLEASE OF SCC FACILITY. SCC will permit the Buyer to conduct
the Business from the existing premises occupied by the Business (the "Business
Premises") through October 31, 1997 at a rental rate not to exceed $20,000 per
month (prorated for partial months), plus expenses such as phone charges and
other similar items, which shall be billed separately by Seller, without
xxxx-up. Buyer may cause employees to vacate all or any portion of the Business
Premises at any time and in one or more stages, and its rental obligation shall
cease upon its full vacation of the Business premises.
7.11 MAPPING SERVICES AND SOFTWARE LICENSE AGREEMENT. As soon as
practicable following the Closing, Buyer and Seller shall negotiate in good
faith and shall enter into a Mapping Services and Software License Agreement,
which shall reflect the terms set forth in EXHIBIT D, among others (the "Service
Agreement").
7.12 9-1-1/CAD INTEGRATION AGREEMENT. As soon as practicable
following the Closing, Buyer and Seller shall negotiate in good faith and shall
enter into a 9-1-1 XA/CAD Integration Agreement, which shall reflect the terms
set forth in EXHIBIT E, among others (the "Integration Agreement").
8. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS. All of the
representations and warranties set forth in this Agreement or in any
certificates delivered pursuant hereto, as the same have been modified by the
information contained in the Schedules to this Agreement delivered on the date
hereof by Seller to Buyer, or by Buyer to Seller, and all covenants which by
their terms require performance or compliance following the Closing, shall
remain in full force and effect and shall survive the Closing until (i) in the
case of the representations and warranties, the expiration of the periods
following the Closing Date applicable to such representations and warranties as
set forth in Section 13(d) hereof, regardless of any investigation or
verification by any party hereto or by anyone or on behalf of any party hereto,
and (ii) in the case of any such covenants, until they have been fully performed
and no further performance is required
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with respect thereto pursuant to this Agreement, unless the party for whose
benefit such covenant, representation or warranty was made waives the same in
writing.
9. CONDITIONS TO OBLIGATIONS OF BUYER. The obligation of Buyer to
consummate the transactions contemplated by this Agreement shall be subject to
the satisfaction, or the waiver in writing by Buyer, at or before the Closing,
of all the conditions set out below in this Section 9.
9.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES/COMPLIANCE WITH
COVENANTS. All of the representations and warranties of Seller contained in this
Agreement and the Schedules hereto, were true and correct when made and remain
true and correct as of the Closing Date. The Seller shall, in all material
respects, have performed, satisfied and complied with all covenants, agreements
and conditions required by this Agreement to have been performed or complied
with by any or all of them on or before the Closing Date.
9.2 NO MATERIAL ADVERSE CHANGES. Subsequent to June 30, 1997 there
shall not have occurred nor shall there exist (i) any material adverse change in
the financial condition, properties, assets, business or operating results or
prospects of the Business from that reflected in the June 30, 1997 Balance
Sheet, except for changes disclosed in this Agreement or in the Schedules hereto
delivered with this Agreement on the date hereof; (ii) any material breach or
default by any party thereto of any of the Assumed Contracts or Assumed
Liabilities or any other material contracts or agreements relating to or
affecting any of the Purchased Assets or the Business, the existence of which
breach or default is not disclosed in this Agreement or in the Schedules
delivered with this Agreement on the date hereof; (iii) any damage or loss,
whether or not insured, to any of the Purchased Assets; or (iv) any other event
or condition or state of facts of any character which could reasonably be
expected to materially adversely affect the Business or any of the Purchased
Assets.
9.3 ABSENCE OF LITIGATION. No action, suit, investigation or other
proceeding before any court or by any governmental body or other authority,
whether brought against the Seller or Buyer, shall have been instituted or
threatened, seeking to prevent the consummation of the transactions contemplated
by this Agreement, and no such litigation shall have been threatened nor shall
there be in effect any order restraining or prohibiting the consummation of the
transactions contemplated by this Agreement nor any proceedings pending with
respect thereto. There shall be no pending or threatened litigation, or asserted
or unasserted claims, assessments, or other loss contingencies, materially and
adversely affecting the Business or any of the Purchased Assets, other than as
disclosed in the Schedules delivered pursuant hereto as of the date of this
Agreement.
9.4 CERTIFICATES. Buyer shall have received the following:
(a) Certificates of Good Standing, as of a recent date, from the
Delaware and Colorado Secretaries of State , indicating that Seller is not
delinquent in the payment of income, franchise, sales or other state taxes or
the filing of any tax returns;
(b) A certificate signed by Seller, dated as of the Closing Date,
certifying that (i) all representations and warranties of the Seller were true
and correct in all material respects when made and remain true and correct in
all material respects as of the Closing Date; (ii) all of the respective
covenants, agreements, obligations and conditions of the Seller required to have
been performed as of or prior to the Closing have been fully performed and
complied with; and (iii) all of
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the conditions to Buyer's obligations under this Agreement required to be
satisfied by the Seller by the Closing Date have been satisfied and fulfilled;
and
(c) A certificate signed by the Secretary of Seller, and dated as
of the Closing Date, as to the incumbency of each officer of Seller executing
this Agreement and the other agreements being delivered pursuant hereto, and
certifying the effectiveness, accuracy and completeness of the copies attached
to such certificate of resolutions duly adopted by Seller's Board of Directors
and all of its shareholders, as the case may be, authorizing the execution and
delivery of this Agreement by Seller, and the performance by Seller of its
obligations hereunder and the consummation of the transactions contemplated
hereby.
9.5 UCC TERMINATION STATEMENTS. Seller shall have delivered or caused
to be delivered to Buyer, at or before the Closing, UCC Termination Statements
and such other releases as Buyer may reasonably request, duly completed and
executed by each person having any security interest, lien, claim or other
encumbrances or adverse interests in or on any of the Purchased Assets which are
required to be terminated pursuant to Section 7.1 above, in order to evidence
the termination thereof.
9.6 LEGAL OPINION. On the Closing Date, Seller shall have delivered
or caused to be delivered to Buyer a legal opinion of Ireland, Xxxxxxxxx, Xxxxx
& Xxxxxx, P.C., counsel to Seller, in the form of EXHIBIT F hereto.
9.7 OTHER CONSENTS AND APPROVALS. Receipt of all consents and
approvals required for the consummation of the transactions contemplated by this
Agreement and to permit Buyer in writing to acquire all of the Purchased Assets
pursuant hereto, without thereby violating any laws, government regulations or
agreements to which subject or is a party, in form and substance
acceptable to Buyer.
9.8 XXXX OF SALE. Seller shall have executed and delivered to Buyer a
Xxxx of Sale, in the form attached hereto as EXHIBIT A, transferring title to
the Purchased Assets to Buyer.
9.9 ASSIGNMENT AND ASSUMPTION AGREEMENT. Seller shall have executed
and delivered to Buyer an Assignment and Assumption Agreement in the form of
EXHIBIT B hereto with Buyer (the "Assignment Agreement"), pursuant to which
Seller shall assign, and Buyer shall assume, all of the Assumed Obligations.
9.10 OTHER DOCUMENTS. Seller shall have delivered to Buyer all
instruments, consents, deeds, assignments and other documents called for in this
Agreement, including, without limitation, assignments and certificates of title
for any and all vehicles included in the Purchased Assets, properly executed and
acknowledged for transfer, and such other documents and instruments as Buyer or
its counsel reasonably requests to better evidence or effectuate the
transactions contemplated hereby.
9.11 NON-COMPETITION AGREEMENT. The Seller shall have executed and
delivered to the Buyer a Non-Competition Agreement substantially in the form
attached hereto as EXHIBIT C.
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10. CONDITIONS TO THE OBLIGATIONS OF SELLER. The obligations of Seller
to consummate the transactions contemplated by this Agreement shall be subject
to the satisfaction, or the waiver by Seller, at or before the Closing, of each
of the following conditions:
10.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES/COMPLIANCE WITH
COVENANTS. All of the representations and warranties of Buyer contained in this
Agreement and in the Schedules hereto were true and correct when made and remain
true and correct as of the Closing Date. Buyer shall have performed, satisfied
and complied in all material respects with all covenants, agreements and
conditions required by this Agreement to be performed or complied with by them
on or prior to the Closing.
10.2 ABSENCE OF LITIGATION. No action, suit, investigation or other
proceeding before any court or by any governmental body or other authority,
whether brought against the Seller or Buyer, shall have been instituted or
threatened, seeking to prevent the consummation of the transactions contemplated
by this Agreement, and no such litigation shall have been threatened nor shall
there be in effect any order restraining or prohibiting the consummation of the
transactions contemplated by this Agreement nor any proceedings pending with
respect thereto.
10.3 CERTIFICATES. Seller shall have received the following:
(a) Good Standing Certificates of Buyer, as of a recent date,
from the Delaware and California Secretaries of State;
(b) A certificate signed by the President or Chief Financial
Officer of Buyer, dated as of the Closing Date, certifying that (i) all
representations and warranties of Buyer were true and correct when made and
remain, in all material respects, true and correct as of the Closing; (ii) all
of the respective covenants, agreements, obligations and conditions of Buyer
required to have been performed by Buyer as of or prior to the Closing have been
fully performed and complied with; and (iii) all of the conditions to Seller's
obligations under this Agreement and the Related Agreements required to be
satisfied by the Closing Date by Buyer have been satisfied and fulfilled; and
(c) A certificate signed by the Secretary of Buyer, dated as of
the Closing Date, as to the incumbency of each officer of Buyer that has
executed this Agreement or the Related Agreements being delivered pursuant
hereto, and certifying the effectiveness, accuracy and completeness of the
copies attached to such certificate of resolutions duly adopted by the Board of
Directors of Buyer authorizing the execution and delivery of this Agreement and
the performance by Buyer of its obligations hereunder and the consummation of
the transactions contemplated hereby.
10.4 OTHER DOCUMENTS. Buyer shall have delivered to Seller all
instruments, consents, deeds, assignments and other documents called for in this
Agreement and the Related Agreements.
10.5 ASSIGNMENT AND ASSUMPTION AGREEMENT. Buyer shall have executed
and delivered to Seller an Assignment and Assumption Agreement in the form of
EXHIBIT B hereto with Buyer (the "Assignment Agreement"), pursuant to which
Seller shall assign, and Buyer shall assume, all of the Assumed Obligations.
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11. CLOSING.
11.1 TIME, DATE AND PLACE OF CLOSING. The closing of the sale and
purchase of the Purchased Assets contemplated by this Agreement (the "Closing")
shall take place at the offices of Stradling, Yocca, Xxxxxxx & Xxxxx, in Newport
Beach, California at 1:00 P.M., on July 18, 1997, or at such other location or
time or on such other date as the parties may agree to in writing (the "Closing
Date").
11.2 SELLER'S OBLIGATIONS AT CLOSING. Subject to the satisfaction, or
Seller's waiver, of the conditions precedent contained in Section 9 hereof, at
the Closing, the Seller shall deliver, or cause to be delivered to Buyer, the
following documents and instruments, in form and substance satisfactory to Buyer
and its counsel:
(a) Each of the certificates, opinions and other documents and
instruments required to be delivered by the Seller to satisfy the conditions set
forth in Section 10 above;
(b) The UCC Termination Statements, and such instruments and
other documents as Buyer may request, from all persons holding security
interests, liens, claims or encumbrances or any other adverse interests on any
of the Purchased Assets, terminating and discharging all of such security
interests, liens, claims, encumbrances and adverse interests;
(c) All checks and other negotiable instruments in the possession
of Seller evidencing or constituting payment of any accounts or notes receivable
included in the Purchased Assets, endorsed for payment to Buyer; and
(d) Such other documents and instruments as Buyer or Buyer's
counsel may reasonably request to better evidence or effectuate the transactions
contemplated hereby.
11.3 OBLIGATIONS OF BUYER AT THE CLOSING. Subject to the
satisfaction, or Buyer's written waiver, of the conditions precedent contained
in Section 9 hereof, at the Closing, Buyer shall do the following:
(a) Buyer shall deliver each of the certificates and other
documents and instruments required to be delivered by Buyer to Seller pursuant
to Section 10 above; and
(b) Buyer shall deliver such other documents and instruments as
Seller or Seller's counsel may reasonably request to better evidence or
effectuate the transactions contemplated hereby.
12. TERMINATION.
12.1 METHODS OF TERMINATION. This Agreement may be terminated and the
transactions herein contemplated may be abandoned at any time, without liability
to the terminating party:
(a) By mutual written consent of Buyer and Seller; or
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(b) By either Buyer or Seller, if the Closing has not occurred by
August ___, 1997; provided, that the party so terminating is not in breach of
any of its material obligations under this Agreement.
12.2 PROCEDURE UPON TERMINATION. In the event of termination of this
Agreement by Buyer or Seller or by both Buyer and Seller pursuant to Section
12.1 hereof, written notice thereof shall forthwith be given to the other party
or parties hereto and the transactions contemplated herein shall be abandoned
without further action by Buyer or the Seller. In addition, if this Agreement is
terminated as provided herein:
(a) Each party will redeliver all documents, workpapers and other
material of any other party relating to the transactions contemplated hereby,
whether so obtained before or after the execution hereof, to the party
furnishing the same;
(b) The confidentiality of all information of a confidential
nature received by any party hereto with respect to the business of any other
party (other than information which is a matter of public knowledge or which has
heretofore been or is hereafter published in any publication for public
distribution or filed as public information with any governmental authority)
shall be maintained in accordance with Section 14 hereof which shall survive
termination of this Agreement; and
(c) Except as hereinabove provided in this Section 12.2, the
respective obligations of the parties hereto under this Agreement shall
terminate; provided, that if any party hereto has breached any of its material
obligations or representations or warranties under this Agreement prior to the
termination of this Agreement, termination of this Agreement shall not release
such party from liability therefor to the other party. For purposes this
Section, the Seller shall be deemed to be a single and the same party.
13. INDEMNIFICATION.
(a) Seller (in the case of indemnification obligations of the
Seller, Seller shall hereinafter be referred to in this Section 13 as the
"Indemnifying Party") hereby agrees that it will indemnify, hold harmless and
defend Buyer and its directors, officers, shareholders, employees, agents and
successors and assigns (in the case of indemnification obligations of Seller,
such persons shall hereinafter be referred to collectively in this Section 13 as
the "Indemnified Parties") from and against any and all Liabilities (as
hereinafter defined) that arise from or are in connection with: (i) any facts,
circumstances or events, the existence or happening of which constitutes a
breach of or inaccuracy in any of the representations or warranties of Seller
contained in this Agreement or in any Exhibits or Schedules hereto or any
certificates or other documents delivered hereunder by or on behalf of Seller;
(ii) any breach or default by Seller of any of its covenants or agreements
contained in this Agreement; and (iii) any legal actions or proceedings that
have arisen or may hereafter arise out of the business or operations of Seller,
whether before or after the Closing, including, without limitation, any of the
pending or threatened legal actions described in Schedule 4.13 hereto; and (iv)
any and all liabilities of Seller which may be asserted by third parties against
Buyer as a result of non-compliance with the Bulk Sales laws of any
jurisdiction. The liability of the Seller to the Indemnified Parties pursuant to
this Section 13(a) shall be limited, in the aggregate, to the Purchase Price.
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(b) Buyer (in the case of indemnification obligations of Buyer,
Buyer shall hereinafter be referred to in this Section 13 as the "Indemnifying
Party") hereby agrees that it will indemnify, hold harmless and defend the
Seller and its directors, officers, shareholders, employees, agents and
successors and assigns (in the case of indemnification obligations of Buyer,
such persons shall hereinafter be referred to collectively in this Section 13 as
the "Indemnified Parties") from and against any and all Liabilities that arise
from or are in connection with: (i) any facts, circumstances or events, the
existence or happening of which constitutes a breach of or inaccuracy in any of
the representations or warranties of Buyer contained in this Agreement or in any
Exhibits or Schedules hereto or any certificates or other documents delivered
hereunder by or on behalf of Buyer; or (ii) any breach or default by Buyer of
any of its covenants or agreements contained in this Agreement, including its
agreement to assume and perform the Assumed Obligations. The liability of the
Buyer to the Indemnified Parties pursuant to this Section 13(b), other than
liability arising out of Buyer's failure to perform the Assumed Obligations
(which shall be limited to the amounts set forth on Schedule 1.3 plus any legal
fees and expenses payable pursuant to subsection (d) below) shall be limited, in
the aggregate, to $100,000.
(c) "Liabilities," as used in this Agreement, shall mean: (i)
demands, claims, actions, suits, and legal or other proceedings brought against
any "Indemnified Party" (as hereinafter defined), and any judgments rendered
therein or settlements thereof, and (ii) all liabilities, damages, losses,
taxes, costs and expenses, including, without limitation, reasonable attorneys'
fees, incurred by any Indemnified Party, whether or not they have arisen from or
were incurred in or as a result of any demand, claim, action, suit, assessment
or other proceeding or any settlement or judgment, and whether sustained before
or after the Closing Date.
(d) No claim for indemnification under this Section 13 may be
made by an Indemnified Party (i) until the aggregate amount of such claims
exceeds $25,000, or (ii) more than eighteen (18) months after the Closing Date;
provided, that any claim by an Indemnified Party for indemnification relating to
any taxes or tax returns or reports may be made at any time within the statute
of limitations relating to such taxes or tax returns or reports. To be
effective, any claim for indemnification under this Section 13 by an Indemnified
Party must be made by a written notice (a "Notice of Claim") to the Indemnifying
Party, given in accordance with the provisions of Section 16 hereof, accompanied
by documentation supporting the claim; provided, however, that if the
Indemnified Party has made such claim prior to such expiration date, such
Indemnified Party shall be entitled to recover the full amount of the
Liabilities incurred by it even if that amount is not finally determined until
after such expiration date. In the event of the assertion, in writing, of a
third-party claim or dispute which, if adversely determined would entitle an
Indemnified Party to indemnification hereunder, the Indemnified Party shall
promptly notify the Indemnifying Party thereof in writing. The Indemnifying
Party may elect, by written notice to the Indemnified Party, to assume and
direct, at their sole expense, the defense of any such third-party claim, and
may, at their sole expense, retain counsel in connection therewith, provided
that such counsel is reasonably acceptable to the Indemnified Party. After the
assumption of such defense by the Indemnifying Party with counsel reasonably
acceptable to the Indemnified Party, and for so long as the Indemnifying Party
conduct such defense on a diligent and timely basis, the Indemnifying Party
shall not be responsible for the payment of legal fees incurred thereafter by
the Indemnified Party (who may, however, continue to participate in the defense
thereof with separate counsel); provided, that, the Indemnifying Party shall be
responsible for paying the fees and expenses of one separate counsel for the
Indemnified Party if the Indemnifying Party and the Indemnified Party have
conflicting positions with respect to such third-party claim or dispute or if
the Indemnifying Party, on the one hand, or the
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Indemnified Party, on the other hand, have defenses not available to the other.
If the Indemnifying Party fail to and until the Indemnifying Party undertake the
defense of any such third-party claim or dispute, or if the Indemnifying Party
discontinue the diligent and timely conduct thereof, the Indemnified Party may
undertake such defense and the Indemnifying Party shall be responsible for
reimbursing the Indemnified Party for its legal fees and expenses as and when
incurred by the Indemnified Party. No Indemnifying Party hereto may settle or
compromise any such third-party claim or dispute without the prior written
consent of the Indemnified Parties hereto, which consent shall not be
unreasonably withheld.
(e) Upon receipt of a Notice of Claim, the Indemnifying Party
shall have fifteen (15) calendar days to contest their indemnification
obligation with respect to such claim, or the amount thereof, by written notice
to the Indemnified Party (a "Contest Notice"); provided, however, that if, at
the time a Notice of Claim is submitted to the Indemnifying Party the amount of
the Liability in respect thereof has not yet been determined, such fifteen (15)
day period shall not commence until a further written notice (a "Notice of
Liability") has been sent or delivered by the Indemnified Party to the
Indemnifying Party setting forth the amount of the Liability incurred by the
Indemnified Party that was the subject of the earlier Notice of Claim. Such
Contest Notice shall specify the reasons or bases for the objection of the
Indemnifying Party to the claim, and if the objection relates to the amount of
the Liability asserted, the amount, if any, which the Indemnifying Party believe
is due the Indemnified Party. If no such Contest Notice is given with such
15-day period, the obligation of the Indemnifying Party to pay to the
Indemnified Party the amount of the Liability set forth in the Notice of Claim,
or subsequent Notice of Liability, shall be deemed established and accepted by
the Indemnifying Party. If, on the other hand, the Indemnifying Party contest a
Notice of Claim or Notice of Liability (as the case may be) within such 15-day
period, the Indemnified Party and the Indemnifying Party shall thereafter
attempt in good faith to resolve their dispute by agreement. If they are unable
to so resolve their dispute within the immediately succeeding thirty (30) days,
such dispute shall be resolved by binding arbitration in Los Angeles County,
California, as provided in Section 17(i) below. The award of the arbitrator
shall be final and binding on the parties and may be enforced in any court of
competent jurisdiction. Upon final determination of the amount of the Liability
that is the subject of an indemnification claim (whether such determination is
the result of the Indemnifying Party's acceptance of, or failure to contest, a
Notice of Claim or Notice of Liability, or of a resolution of any dispute with
respect thereto by agreement of the parties or binding arbitration), such amount
shall be payable, in cash by the Indemnifying Party to the Indemnified Party who
have been determined to be entitled thereto within five (5) days of such final
determination of the amount of the Liability due by the Indemnifying Party. Any
amount that becomes due hereunder and is not paid when due shall bear interest
at the maximum legal rate per annum from the date due until paid.
14. CONFIDENTIALITY. Each party acknowledges that it may have access to
various items of proprietary and confidential information of the other in the
course of investigations and negotiations prior to Closing. Except as otherwise
provided in Section 6.3 above, each party agrees that any such confidential
information received from the other party shall be kept confidential and shall
not be used for any purpose other than to facilitate the arrangement of
financing for and the consummation of the transactions contemplated herein.
Confidential information shall include any business or other information which
is specifically marked by the party claiming confidentiality as being
confidential, unless such information (i) is already public knowledge, (ii)
becomes public knowledge through no fault, action or inaction of the receiving
party, or (iii) was known by the receiving party, or any of its directors,
officers, employees, representatives, agents or advisors prior to
29
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the disclosure of such information by the disclosing party to the receiving
party. No party hereto, nor its respective officers, directors, employees,
accountants, attorneys, or agents shall intentionally disclose the existence or
nature of, or any of the terms and conditions relating to, the transaction
referred to herein, to any third person; provided, however, that such
information may be disclosed in applications or requests required to be made to
obtain any Licenses and Permits, approvals or consents needed to consummate the
transactions contemplated herein or in any Securities Filings.
15. EXPENSES AND BROKER'S FEES.
15.1 EXPENSES/PRORATIONS. Each of the parties shall pay all costs and
expenses incurred or to be incurred by it in connection with the negotiation,
preparation, execution, delivery and performance of its respective obligations
under this Agreement and the Related Agreements.
15.2 BROKER'S FEES. Each party represents and warrants that it has
not utilized the services of, and that it does not and will not have any
liability to, any broker or finder in connection with this Agreement or the
transactions contemplated hereby. The Seller jointly and severally agree to
indemnify and hold harmless Buyer, and Buyer agrees to hold harmless Seller,
against any loss, liability, damage, cost, claim or expense incurred by reason
of any brokerage commission or finder's fee alleged to be payable as a result
of, or in connection with, this Agreement or the transactions contemplated
hereby by reason of any act, omission or statement of the indemnifying party.
16. NOTICES. All notices, requests, demands or other communications
hereunder shall be in writing and shall be deemed to have been duly given, if
delivered in person or by a nationally recognized courier service, if sent by
facsimile machine ("fax") or mailed, certified, return-receipt requested,
postage prepaid:
If to Printrak to:
Printrak International Inc.
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xx. Xxxxx X. XxXxxxxxx
With a copy to:
Stradling, Yocca, Xxxxxxx & Xxxxx
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxxx, Esq.
If to SCC to:
SCC Communications Corp.
0000 Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Ms. Xxxxx Xxxxxxxx
With a copy to:
Ireland, Xxxxxxxxx, Xxxxx & Xxxxxx
0000 Xxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxx, Esq.
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Any party hereto may from time to time, by written notice to the other parties,
designate a different address, which shall be substituted for the one specified
above for such party. If any notice or other document is sent by certified or
registered mail, return receipt requested, postage prepaid, properly addressed
as aforementioned, the same shall be deemed served or delivered seventy-two (72)
hours after mailing thereof. If any notice is sent by fax to a party, it will be
deemed to have been delivered on the date the fax thereof is actually received,
provided the original thereof is sent by certified or registered mail, in the
manner set forth above, within twenty-four (24) hours after the fax is sent. If
the notice is delivered in person or is sent by a nationally recognized courier
service, it shall be deemed to have been delivered on the date received by the
recipient of such notice.
17. MISCELLANEOUS.
17.1 BINDING EFFECT. Subject to the terms of Section 17.2 below, this
Agreement shall be binding upon the heirs, executors, representatives,
successors and assigns of the respective parties hereto.
17.2 ASSIGNMENT. No party may assign this Agreement, or assign their
respective rights or delegate their respective duties hereunder, without the
prior written consent of the other party.
17.3 COUNTERPARTS. This Agreement may be executed in facsimile and in
any number of counterparts, each of which shall be deemed to be an original and
all of which together shall be deemed to be one and the same instrument.
17.4 HEADINGS. The subject headings of the sections and subsections
of this Agreement are included for purposes of convenience only and shall not
affect the construction or interpretation of any of its provisions.
17.5 WAIVERS. Any party to this Agreement may waive any right, breach
or default which it has the right to waive; provided, that such waiver will not
be effective against the waiving party unless it is in writing and specifically
refers to this Agreement and notice thereof is promptly given to all parties in
the manner provided in Section 16 of this Agreement. No waiver will be deemed to
be a waiver of any other matter, whenever occurring and whether identical,
similar or dissimilar to the matter waived.
17.6 ENTIRE AGREEMENT. This Agreement, including the Schedules,
Exhibits and other documents referred to herein which form a part hereof,
embodies the entire agreement and understanding of the parties hereto, and
supersedes all prior or contemporaneous agreements or understandings (whether
written or oral) among the parties, in respect to the subject matter contained
herein, including, without limitation, the Letter Agreement.
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17.7 GOVERNING LAW. This Agreement is deemed to have been made in the
State of California, and its interpretation, its construction and the remedies
for its enforcement or breach are to be applied pursuant to, and in accordance
with, the laws of California for contracts made and to be performed in that
state.
17.8 ARBITRATION. All disputes between the parties hereto shall be
determined solely and exclusively by arbitration under, and in accordance with
the rules then in effect of, the American Arbitration Association, or any
successors thereto ("AAA"), in Los Angeles, California, unless the parties
otherwise agree in writing. The parties shall, in connection with such
arbitration, in addition to any discovery permitted under AAA rules, be
permitted to conduct discovery in accordance with Section 1283.05 of the
California Code of Civil Procedure, the provisions of which are incorporated
herein by this reference. The parties shall jointly select an arbitrator. In the
event the parties fail to agree upon an arbitrator within ten (10) days, then
each party shall select an arbitrator and such arbitrators shall then select a
third arbitrator to serve as the sole arbitrator; provided, that if either
party, in such event, fails to select an arbitrator within seven (7) days, such
arbitrator shall be selected by the AAA upon application of either party.
Judgment upon the award of the agreed upon arbitrator or the so chosen third
arbitrator, as the case may be, shall be binding and shall be entered into by a
court of competent jurisdiction.
17.9 SEVERABILITY. Any provision of this Agreement which is illegal,
invalid or unenforceable shall be ineffective to the extent of such illegality,
invalidity or unenforceability, without affecting in any way the remaining
provisions hereof.
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IN WITNESS WHEREOF, the undersigned corporations have caused this
Agreement to be executed by officers thereunto duly authorized, on the date
first above stated.
SELLER:
SCC COMMUNICATIONS CORP.,
a Delaware corporation
By: /s/ XXXXX X. XXXXXXXX
-------------------------------------
Its: CFO
-------------------------------------
BUYER:
PRINTRAK INTERNATIONAL INC., a Delaware
corporation
By: /s/
-------------------------------------
Its: PRESIDENT AND CEO
-------------------------------------
33
35
EXHIBITS
Exhibit A Form of Xxxx of Sale
Exhibit B Form of Assignment and Assumption Agreement
Exhibit C Form of Non-Competition Agreement
Exhibit D Form of Mapping Services and Software License Agreement
Exhibit E Form of Demonstration Site Agreement
Exhibit F Form of Opinion of Counsel for the Seller
Exhibit G Form of Opinion of Counsel for Buyer
SCHEDULES
Schedule 1.1(a) Tangible Assets
Schedule 1.1(b) Personal Property Contracts
Schedule 1.1(d) Intangible Property Rights
Schedule 1.1(g) Computer Software Programs
Schedule 1.2 Assumed Liabilities
Schedule 4.3A Financial Statements
Schedule 4.3B Financial Statement Exceptions
Schedule 4.4 Certain Changes
Schedule 4.5 Exceptions to Title
Schedule 4.5(d) Leases
Schedule 4.6 Contracts and Commitments
Schedule 4.7 Labor and Employment Matters
Schedule 4.8 Conflicts
Schedule 4.9 Insurance Policies
Schedule 4.11(a) Compliance With Laws
Schedule 4.11(b) Permits and Licenses
Schedule 4.12 Litigation
Schedule 4.13 Certain Transactions
Schedule 4.14 Environmental and Safety Matters
Schedule 4.15 Intellectual Property Rights
Schedule 4.16 Operational Restrictions
Schedule 4.18 Individuals with Knowledge of Seller's Operations
Schedule 5.3 Conflicts of Buyer
36
EXHIBIT A
FORM OF XXXX OF SALE
This XXXX OF SALE (this "Xxxx of Sale") is made as of July 18, 1997 by
SCC COMMUNICATIONS CORP., a Delaware corporation ("Seller"), and PRINTRAK
INTERNATIONAL INC., a Delaware corporation ("Buyer").
WHEREAS, Seller and Buyer are parties to that certain Asset Purchase
Agreement dated as of July 18, 1997 (the "Asset Purchase Agreement"), pursuant
to which Seller has agreed to sell, convey, transfer and assign to Buyer all of
Seller's right, title and interest in and to the Purchased Assets (as such term
is defined in the Asset Purchase Agreement).
WHEREAS, unless otherwise defined herein, capitalized terms used in
this Xxxx of Sale shall have the meanings ascribed to them in the Asset Purchase
Agreement.
NOW, THEREFORE, BE IT KNOWN THAT:
1. In consideration for the payments to be made by Buyer to Seller as
set forth in Section 3 of the Asset Purchase Agreement, all of which has been
received by Seller on the date hereof, Seller does hereby sell, transfer, assign
and deliver to Buyer the Purchased Assets, free and clear of all mortgages ,
liens, security interests, encumbrances, pledges, leases, equities, claims,
charges, restrictions, conditions, conditional sale contracts and any other
adverse interests of any kind whatsoever, except as expressly set forth in the
Asset Purchase Agreement.
2. The representations and warranties of Seller contained in Section
4.5 of the Asset Purchase Agreement with respect to the Purchased Assets,
together with all limitations on such representations and warranties expressly
set forth in the Asset Purchase Agreement, are incorporated herein by this
reference and made a part of this Xxxx of Sale.
3. Seller hereby agrees to execute and deliver such other instruments
and documents as Buyer may from time to time hereafter reasonably request to
further effectuate the sale, transfer, conveyance and assignment to Buyer of the
Purchased Assets.
IN WITNESS WHEREOF, each of the parties hereto have caused this Xxxx of
Sale to be executed by its duly authorized representative as of the day and year
set forth above.
"SELLER"
SCC COMMUNICATIONS CORP.,
a Delaware corporation
By:
----------------------------
Its:
---------------------------
`BUYER"
PRINTRAK INTERNATIONAL INC.,
a Delaware corporation
By:
----------------------------
ITS:
---------------------------
37
EXHIBIT B
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (the "Agreement"), is made as
of July 18, 1997, by and between SCC COMMUNICATIONS CORP., a Delaware
corporation (the 'Seller") and PRINTRAK INTERNATIONAL INC., a Delaware
corporation (the 'Buyer").
Seller and Buyer are parties to an Asset Purchase Agreement, dated July
18, 1997 (the "Purchase Agreement'). Capitalized terms used herein have the
respective meanings ascribed thereto in the Purchase Agreement unless otherwise
defined herein.
1. Assignment and Assumption. For good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, on the terms and
subject to the conditions of the Purchase Agreement, Seller hereby assigns,
transfers and conveys to Buyer and Buyer hereby assumes and agrees to pay,
perform and discharge the Assumed Obligations of Seller, to the extent not paid,
performed or discharged on or before the date hereof. The Assumed Obligations
consist of the following obligations and liabilities of Seller:
(a) those liabilities, obligations and commitments specifically set
forth in Schedule 1.2 of the Purchase Agreement (collectively, the "Assumed
Liabilities"); and
(b) those rights, liabilities and obligations arising from and after
the Closing Date under the Assumed Contracts.
EXCEPT FOR THE OBLIGATIONS SET FORTH ABOVE, BUYER SHALL NOT ASSUME OR
DISCHARGE ANY DEBTS, OBLIGATIONS, LIABILITIES OR COMMITMENTS OF SELLER WHETHER
ACCRUED NOW OR HEREAFTER, WHETHER FIXED OR CONTINGENT, AND WHETHER KNOWN OR
UNKNOWN, INCLUDING BUT NOT LIMITED TO ANY SEVERANCE, VACATION PAY OR ANY OTHER
OBLIGATIONS TO EMPLOYEES OF SELLER UNLESS SUCH OBLIGATIONS ARISE EXCLUSIVELY AS
A RESULT OF EMPLOYMENT OF SUCH PERSONS BY BUYER. THE ASSIGNED OBLIGATIONS SHALL
NOT INCLUDE, AND SELLER COVENANTS THAT BUYER SHALL NOT BE LIABLE OR RESPONSIBLE
FOR, ANY OBLIGATIONS OR LIABILITIES ARISING OUT OF ANY ACT OR OMISSION OF SELLER
UNDER ANY ASSIGNED CONTRACT, REGARDLESS OF WHEN SUCH LIABILITY OR OBLIGATION IS
ASSERTED. SELLER SHALL INDEMNIFY AND HOLD HARMLESS BUYER FOR AND WITH RESPECT TO
ALL EXCLUDED LIABILITIES, PURSUANT TO SECTION 2 OF THE PURCHASE AGREEMENT. BUYER
SHALL INDEMNIFY AND HOLD HARMLESS SELLER FOR AND WITH RESPECT TO ALL ASSUMED
OBLIGATIONS, PURSUANT TO SECTION 13 OF THE PURCHASE AGREEMENT.
38
2. General. This Agreement constitutes an agreement solely among the
parties hereto, and is not intended to and shall not confer any rights,
remedies, obligations or liabilities, legal or equitable, including any right of
employment, on any person other than the parties hereto and their respective
successors, assigns and legal representatives, or otherwise constitute any
person a third party beneficiary under or by reason hereof. This agreement may
be executed in one or more counterparts, each of which shall be deemed an
original agreement, but all of which together shall constitute one and the same
instrument, and shall be governed by and construed in accordance with the
internal laws of the State of California without reference to choice of law
principles thereof.
This Agreement may only be amended or modified in writing signed by the party
against whom enforcement of such amendment or modification is sought.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Assumption Agreement to be duly executed on their behalf by the undersigned,
thereunto duly authorized as of the day and year first above written.
SCC COMMUNICATIONS CORP.,
a Delaware corporation
By:
-----------------------------------
Its:
-----------------------------------
"BUYER"
PRINTRAK INTERNATIONAL INC.,
a Delaware corporation
By:
-----------------------------------
Its:
-----------------------------------
39
EXHIBIT C
NON-COMPETITION AGREEMENT
THIS NON-COMPETITION AGREEMENT (the "Agreement") is made this 18th day
of July, 1997, by and between SCC COMMUNICATIONS CORP., a Delaware corporation
(the "Seller'), and PRINTRAK INTERNATIONAL INC., a Delaware corporation (the
'Buyer"), with reference to the following:
A. The Seller develops and markets computer-aided dispatch and records
management software and related software directly to public safety agencies
within all of the states of the United States of America and the District of
Columbia (the "Business").
B. Buyer and Seller have entered into an Asset Purchase Agreement dated
as of July 18, 1997 (the "Agreement"), pursuant to which Seller will sell to
Buyer all of the assets of the Business.
C. It is a condition precedent to the obligations of Buyer under the
Agreement that Seller enter into a Non-Competition Agreement in the form of this
Agreement with the Buyer, including the covenant not to compete contained
herein; and Seller understands and acknowledges that this Agreement is a
material inducement to Buyer upon which it is relying in consummating the
transactions contemplated by the Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, warranties
and representations contained herein, the parties hereby agree as follows:
1. The Seller covenants, that for a period of three (3) consecutive
years commencing on the date hereof, the Seller shall not directly, or
indirectly through one or more other persons or entities, engage in, or have any
financial or other interests in or provide assistance to any person, firm,
corporation or business that engages in, any activity which is the same as or
competitive with the Business, in, from, at or into (a) any of the states of the
United States of America or the District of Columbia or (b) any of the
countries, territories or areas of the world. Notwithstanding the foregoing,
nothing contained in this Agreement shall prevent or otherwise limit the Seller
from holding, for investment purposes only, no more than one percent (1%) of any
class of equity securities of a company engaged in activities that are
competitive with the Business if such class of equity securities is traded on a
national securities exchange or on the NASDAQ National Market System.
2. The Seller agrees not to solicit any of the employees of the Buyer
at any time during the Seller's employment with the Buyer, and for a period of
one (1) year following the termination thereof.
3. The Seller covenants that neither the Seller, nor any employee,
officer, director or agent of the Seller, shall use for his, her or their
benefit, or disclose, communicate or divulge to, or use for the direct or
indirect benefit of any person, firm, association or company, other than the
40
Buyer, any confidential information regarding the business methods, business
policies, procedures, techniques, trade secrets, software, products, customer
lists or other knowledge or processes used or developed, prior to the Closing,
by the Seller, or other information concerning the Business of which the Buyer
or the Seller became aware prior to the Closing. The foregoing restrictions
shall not apply to (i) information which is or becomes, other than as a result
of a breach of this Agreement, generally available to the public, or (ii) the
disclosure of information required pursuant to a subpoena or other legal
process; provided that the party required to disclose such information shall
notify the Buyer, in writing, of the receipt of any such subpoena or other legal
process requiring such disclosure immediately after receipt thereof and the
Buyer shall have a reasonable opportunity to quash such subpoena or other legal
process prior to any disclosure by the Seller, or (iii) information used in
Seller's NDSC business so long as such business does not compete with the
Business.
4. The Seller acknowledges that the restrictions contained in
Paragraphs 1, 2 and 3, in view of the nature of the Business and the involvement
of such Seller in the Business, are reasonable and necessary in order to protect
the legitimate interests of the Buyer, and that any violation thereof would
result in irreparable injuries to the Buyer. Therefore, the Seller acknowledges
and agrees that, in the event of a violation by the Seller, of any of the
restrictions contained in Paragraphs 1, 2 or 3 above, the Buyer shall be
entitled to seek and obtain from any court of competent jurisdiction (and
without having to join any other party in such action) temporary, preliminary
and permanent injunctive relief, in addition to any other rights or remedies to
which it or they may be entitled and Seller hereby consents to the issuance of
such injunction or grant of such specific performance. In any action or
proceeding to enforce the provisions of this Agreement, Seller expressly waives
the defense that a remedy of damages will be adequate for a breach of Seller's
duties under this Agreement.
5. It is expressly agreed by the Seller that if, in any judicial
proceeding, the geographic coverage of the covenant contained in Paragraph I
hereof or either of the respective periods of time specified in Paragraphs I and
2 hereof should be adjudged unreasonable, then such geographic coverage or such
period or periods of time, as the case may be, shall be reduced to the extent
necessary to enable the court to enforce the restrictions in Paragraph 1 and 2
to the fullest extent permitted under applicable law.
6. The rights of Buyer and the Buyer hereunder shall inure to, and the
obligations of the Seller hereunder shall be binding on, their respective heirs,
representatives, successors and assigns.
7. In the event of a controversy, claim or dispute between any of the
parties hereto arising out of or relating to this Agreement, or the breach
thereof, the prevailing party shall be entitled to recover its reasonable
attorneys' fees, expenses and costs.
8. This Agreement shall be covered by and construed in accordance with
the laws of the State of California. This Agreement may be executed by facsimile
and in counterparts, each of which shall be deemed an original and all of which
when taken together shall constitute on and the same instrument.
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9. Neither this Agreement, nor any of the terms or conditions of this
Agreement, may be waived, amended or modified except by means of a written
instrument duly executed by the parties to be charged therewith. No waiver of
any provision, performance or default hereunder in any instance shall be
construed as a continuing waiver of such provision, performance or default or a
waiver of any other provision, performance or default or a waiver of any future
performance or default.
10. This Agreement, together with the provisions of Section 9.12 of the
Agreement, contain all of the agreements of the parties with respect to, and
supersede all other agreements, written or oral, between the parties relating
to, the subject matter of this Agreement.
11. Capitalized terms not otherwise defined herein shall have the
meanings ascribed to them as set forth in the Agreement.
THIS NON-COMPETITION AGREEMENT has been executed by the parties hereto
as of the date and year first above written.
"SELLER"
SCC COMMUNICATIONS CORP.,
a Delaware corporation
By:
----------------------------------------
Its:
----------------------------------------
"BUYER"
PRINTRAK INTERNATIONAL INC.,
a Delaware corporation
By:
----------------------------------------
Its:
----------------------------------------
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EXHIBIT D.,MAPPING SERVICES
ASSET PURCHASE, AGREEMENT BETWEEN.V SCC/PRINTRAK
EXHIBIT D - MAPPING SERVICES
SCC hereby agrees to grant to Printrak a perpetual. Non-transferable.
non-exclusive right to sublicense SCC's Graphic Geofile Management, ("GGM")
software to Printrak customers. The right to sublicense is restricted to
Printrak customers for use with the Computer Aided Dispatch or Record Management
products only and not for purposes which are competitive with SCC. Other GGM
sublicense usage is subject to prior written approval from SCC. SCC also grants
to Printrak a perpetual. non-transferable. non-exclusive GGM license for
personal business use only, and allows Printrak to make one back-up copy for
emergency usage only. These licensing rights shall be granted to Printrak on a
no-cost basis.
SCC agrees to continue to offer on a subcontract basis to Printrak the following
GGM services:
1. Complete Geofile Builds
2. Proposals for GGM Services
3. GGM Training
4. GGM Installation Services
5. Pin Mapping
6. GGM Database Updating
7. Geofile Maintenance Services
8. Federation Transfer
SCC shall provide these GGM services on a time and materials basis using SCC's
current published labor rates effective July 1. 1997 plus or minus 5 percent not
to exceed a 10 percent increase per year. SCC and Printrak reserve the option to
subcontract SCC GGM Services on a mutually acceptable. firm fixed price basis.
SCC proposals shall be provided on a no-cost basis to Printrak.
SCC and Printrak agree that this is a non-exclusive arrangement for GGM
licensing and subcontract services. Printrak may elect to terminate this
arrangement, or any part thereof, by providing 60 days prior written notice to
SCC.
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EXHIBIT E 9-1-IIC.4D Interface
ASSET PURCHASE,AGREEMENT BETWEEN SCC/PRINTRAK
EXHIBIT E-9-1-1/CAD INTEGRATION
SCC is developing, in cooperation with a number of vendors. a new set of
messaging APIs called 9-1-1 XA(TM). SCC agrees to give Printrak the opportunity
to provide the first trial or demonstration CAD sites for the 9-1-IXA API for
"ANI/ALI" reports in each of the SCC National Data Service Center service
regions. In each region. SCC must also secure the concurrence of the supporting
telephone company. SCC will obtain the local telephone company ("telco") support
for initial trials with Printrak.
The period for support of preferential CAD 9-1 -I XA API for "ANI/ALI" trials
for Printrak will terminate on March 31, 1998. Thereafter, SCC will allow other
CAD vendors to use the API.
This approach will give Printrak approximately a six month market lead in the
deployment of the first CAD integration with the new 9-1-IXA API. SCC reserves
the right to support the 9-11 XA API for "ANI/ALI" reports concurrently with
traditional CPE vendors.
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EXHIBIT F
FORM OF OPINION OF COUNSEL TO THE SELLER
Matters to be covered in the Legal Opinion to be delivered by Counsel to the
Seller:
1. Seller is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware. Seller is not required to be
qualified as a foreign corporation in any other state in which the failure to be
so qualified would have a material adverse effect on Seller. Seller has the
corporate power and authority to own and sell its properties and assets, to
carry on its business as presently conducted, and to enter into the Agreement
and perform its obligations thereunder.
2. The Agreement, and the other agreements contemplated thereby to
which Seller is a party (the "Seller Related Agreements"), have been duly
authorized by all necessary corporate action on the part of Seller and have been
duly executed and delivered by Seller. The Agreement and the Seller Related
Agreements constitute the legal, valid and binding obligations of Seller
enforceable against it in accordance with their terms, except as the
enforceability thereof may be subject to or limited by (a) bankruptcy,
insolvency, reorganization, arrangement, moratorium or other similar laws
relating to or affecting the rights of creditors and (b) general equitable
principles, regardless of whether the issue of enforceability is considered in a
proceeding in equity or at law.
3. The execution and delivery of the Agreement and the Seller Related
Agreements, and the performance by Seller of its obligations thereunder, (a)
will not breach or result in a violation of Seller's Articles of Incorporation
or Bylaws, or any judgment, order or decree of any court or arbitrator, known to
us, to which Seller is a party or is subject, and (b) will not constitute a
material breach of the terms, conditions or provisions of, or constitute a
default under, any contract set forth in the Schedules to the Agreement.
4. To our knowledge, no consent, approval or authorization of, or
designation, declaration or filing with, any governmental authority is required
in connection with the valid execution, delivery and performance by Seller of
the Agreement and the Seller Related Agreements, other than such consents,
approvals, authorizations, designations, declarations or filings as have been
made or obtained on or before the date hereof.
5. Except as disclosed in the Agreement and the Seller Related
Agreements, there is, to our current actual knowledge, no action, suit or
proceeding pending against any of the Selling Parties in any court or before any
governmental authority or agency, or arbitration board or tribunal (a) which
seeks to restrain, enjoin, prevent the consummation of, or otherwise challenge
the Agreement or any of the Seller Related Agreements, or any of the
transactions contemplated thereby, or (b) which, if adversely determined, could
have a material adverse effect on Seller or its business or properties.
6. Such other matters as counsel for Buyer may reasonably request.
45
SCHEDULE 1.1(a)
46
SUMMARY SHEET
Fixed Asset Summary
Cost Accumulated Net Book
Depreciation Value
Preliminary List 477,122 103,292 373,829
Add'l cost info to original list 17,771 5,821 11,950
Preliminary value of add'l
equipment list 57,252 15,969 41,283
Current Estimate Net Book Value 552,145 125,083 427,063
Add'l Adjustments (30843) (13639) (17204)
Subtotal 521,302 111,444 409,859
47
SUMMARY SHEET
Fixed Asset Summary
Cost Accumulated Net Book
Depreciation Value
Preliminary List 477,122 103,292 373,829
Add'l cost info to original list 17,771 5,821 11,950
Preliminary value of add'l
equipment list 57,252 15,969 41,283
Current Estimate Net Book Value 552,145 125,083 427,063
Add'l Adjustments (30843) (13639) (17204)
Subtotal 521,302 111,444 409,859
48
CAD PRELIMINARY INVENTORY LISTING
---------------------------------
FINAL GIVEN TO B WHITE as of 6/21/97
---------------------- -------------
purchase purchase dep net
asset description dep# tag# asset description a a date cost taken book
----------------- ---- ---- ----------------- -------- -------- ----- ----
6521 TANDEM + MONITO TERMINAL 365 6521 TANDEM + MONITO TERMINAL 0.00
6521 TANDEM + MONITO TERMINAL 365 1787 6521 TANDEM + MONITO TERMINAL 0.00
6521 TANDEM + MONITO TERMINAL 1107 6521 TANDEM + MONITO TERMINAL 0.00
6521 TANDEM + MONITO TERMINAL 333 6521 TANDEM + MONITO TERMINAL 0.00
A OPEN 333 2062 HAL Jun-96 1,401.76 256.89 1,144.77
A OPEN 333 2160 ZENA Jun-96 1,401.76 256.89 1,144.77
A OPEN 333 2158 XAVIER Jun-96 1,401.76 256.89 1,144.77
A OPEN 333 2159 XXXXXX Jun-96 1,401.76 256.89 1,144.77
A OPEN 333 2110 A OPEN Jul-96 1,401.76 256.89 1,144.77
A OPEN 333 2376 A OPEN Jul-96 1,401.76 256.89 1,144.77
A OPEN 340 2350 A OPEN Jul-96 1,401.76 256.89 1,144.77
A OPEN 355 2168 A OPEN Jul-96 1,401.76 256.89 1,144.77
ABTRION AMP METER 333
ACCURA 288 V.34 + FAX 315 ACCURA 288 V.34 +FAX Oct-96 143.16 31.61 111.35
ACCURA 288 V.34 + FAX 315 ACCURA 288 V.34 + FAX Oct-96 143.16 31.61 111.35
ALR SOL SERVER 315 ALR SOL SERVER 0.00
ALR TOWER WITH DISC 333 ALR TOWER WITH DISC 0.00
ASCENTIA 9ION LAPTOP AST 400 ASCENTIA 9ION LAPTOP AST Mar-94 6,530.00 4,135.67 2,394.33
AST 4/66D COMPUTER 365 2229 AST 4/66D COMPUTER Jan-95 2,269.00 1,096.68 1,172.32
AST BRAVO COMPUTER 333 1897 AST BRAVO COMPUTER Jan-95 2,269.00 1,096.68 1,172.32
AST BRAVO COMPUTER 360 2074 AST BRAVO COMPUTER Jan-95 2,269.00 1,096.68 1,172.32
AST PREMIER 100 COMPUTER 2113 AST PREMIER 100 COMPUTER 0.00
AST VISION 20 MONITO 360 2073 AST VISION 20 MONITO 0.00
AST VISION 7L MONITO 315 2088 AST VISION 7L-MONITO 1/1/95 738.00 356.70 381.30
AST VISION 7L MONITO 315 2021 AST VISION 7L-MONITO 1/1/95 738.00 356.70 381.30
AST VISION 7L MONITO 315 2033 AST VISION 7L-MONITO 1/1/95 738.00 356.70 381.30
AST VISION 7L MONITO 315 2035 AST VISION 7L-MONITO 1/1/95 738.00 356.70 381.30
AST VISION 7L MONITO 318 2321 AST VISION 7L-MONITO 1/1/95 738.00 356.70 381.30
AST VISION 7L MONITO 318 2334 AST VISION 7L-MONITO 1/1/95 738.00 356.70 381.30
AST VISION 7L MONITO 318 2114 AST VISION 7L-MONITO 1/1/95 738.00 356.70 381.30
AST VISION 7L MONITO 318 2366 AST VISION 7L-MONITO 1/1/95 738.00 356.70 381.30
AST VISION 7L MONITO 335 1916 AST VISION 7L-MONITO 1/1/95 738.00 356.70 381.30
AST VISION 7L MONITO 340 2116 AST VISION 7L-MONITO 1/1/95 738.00 356.70 381.30
AST VISION 7L MONITO 340 2030 AST VISION 7L-MONITO 1/1/95 738.00 356.70 381.30
AST VISION 7L MONITO 356 2105 AST VISION 7L-MONITO 1/1/95 738.00 356.70 381.30
AST VISION 7L MONITO 360 2075 AST VISION 7L-MONITO 1/1/95 738.00 356.70 381.30
AST VISION 7L MONITO 360 2078 AST VISION 7L-MONITO 1/1/95 738.00 356.70 381.30
AST VISION 7L MONITO 365 1961 AST VISION 7L-MONITO 1/1/95 738.00 356.70 381.30
AST VISION 7L MONITO 365 2231 AST VISION 7L-MONITO 1/1/95 738.00 356.70 381.30
AST VISION 7L MONITO 830 AST VISION 7L-MONITO 1/1/95 738.00 356.70 381.30
AST VISION 7L MONITO 333 2306 XXXXXXXX 1/1/95 738.00 356.70 381.30
AST VISION 7L MONITO 333 2025 QUINCY 1/1/95 738.00 356.70 381.30
AST VISION 7L MONITO 333 2313 XXXX 1/1/95 738.00 356.70 381.30
AST VISION 7L XXXXXX 000 0000 XXXXX 1/1/95 738.00 365.70 372.30
Page 1
49
INVENTORY LIST
AST VISION 7L MONITO 340 2117 AST VISION 7L MONITO 1/1/95 738.00 356.70 381.30
AST VISION 7L MONITO 350 2029 AST VISION 7L MONITO 1/1/95 738.00 356.70 381.30
AST VISION 7L MONITO 350 2227 AST VISION 7L MONITO 1/1/95 738.00 356.70 381.30
400 best buy computer monitor xxxxxxx Sep-96 420.79 95.29 333.50
400 best buy fax/copier/scanner xxxxxxx 7/1/96 732.48 203.47 529.01
400 best buy printer xxxxxxx Jul-96 443.49 123.19 320.30
400 best buy zip drive & ink cart xxxxxxx Sep-96 382.48 85.00 297.48
XXXXXX BUBBLE JET PRINTER BJ30 318 XXXXXX BUBBLE JET PRINTER BJ30 0.00
CODEX MOTOROLA 3260 318 CODEX MOTOROLA 3260 0.00
COLOR DISPLAY MONITO (92) 365 1495 COLOR DISPLAY MONITO (92) 0.00
COLOR DISPLAY MONITO (92) 365 1807 COLOR DISPLAY MONITO (92) 0.00
COMPACT DISC STAND ALONE 321 COMPACT DISC STAND ALONE 0.00
DATA STORAGE 386-SX 360 1408 DATA STORAGE 386-SX 0.00
DATA STORAGE 486/66 365 1654 DATA STORAGE 486/66 Mar-94 840.00 840.00 0.00
DATA STORAGE MONITO OLD 333 1619 DATA STORAGE MONITO OLD 0.00
DATA STORAGE P575 NEC 316 DATA STORAGE P575 NEC Sep-96 1,004.00 223.11 760.89
DATA STORAGE P575 NEC 318 DATA STORAGE P575 NEC Sep-96 1,004.00 223.11 780.89
DATA STORAGE P575 NEC 333 1678 DATA STORAGE P575 NEC Sep-96 1,004.00 223.11 780.89
335 2586 DELL LATITUDE LAPTOP May-97 4,153.67 115.38 4,038.29
400 DELL LATITUDE LAPTOP May-97 4,153.67 115.38 4,038.29
DELL LATITUDE LAPTOP 400 2567 DELL LATITUDE LAPTOP May-97 4,153.67 115.38 4,038.29
400 DELL LATITUDE LAPTOP May-97 3,608.00 100.17 3,505.83
335 2550 DELL XPI LAPTOP Apr-96 4,624.04 1,001.88 3,622.16
335 DELL XPI LAPTOP Apr-96 4,624.04 1,001.88 3,622.16
335 DELL XPI LAPTOP Apr-96 4,624.04 1,001.88 3,622.16
335 DELL XPI LAPTOP Apr-96 4,624.04 1,001.88 3,622.16
365 2132 DELL XPI LAPTOP Apr-96 4,624.04 1,001.88 3,622.16
400 DELL XPI LAPTOP Apr-96 4,624.04 1,001.88 3,622.16
400 DELL XPI LAPTOP Apr-96 4,624.04 1,001.88 3,622.16
DELL XPI LAPTOP Apr-96 4,624.04 1,001.88 3,622.16
315 DELL XPI LAPTOP PLUS CD 4,624.04 1,001.88 3,622.16
DEVELOPING PARTITION 315 Apr-96 2,000.00 466.67 1,533.33
ECA MDTS 333
ENTERPRISE ANNUAL SOFTWARE 000 Xxx-00 4,000.00 2,111.11 1,886.89
GATEWAY 2000 G6-150 315 GATEWAY 2000 X0-000 Xxx-00 8,532.36 2,133.09 6,399.27
GENERAL DATACOMM 500 G/UXR 318 GENERAL DATACOMM 500 G/UXR 0.00
GENERAL DATACOMM 500 G/UXR 318 GENERAL DATACOMM 500 G/UXR 0.00
H.P PRINTER USING GREENLINE PAPER 333
H.P. DELUXE DESKTOP PRINTER 690C 365 H.P. DELUXE DESKTOP PRINTER 690C May-97 866.00 24.61 861.39
H.P. VECTRA SERIES 333 GOERGINE Feb-97 1,657.27 110.48 1,546.79
H.P. VECTRA SERIES 4 5/133 333 XXXXX May-97 1,657.27 27.62 1,629.65
H.P. VECTRA SERIES 4 5/133 333 XXXXX May-97 1,657.27 27.62 1,629.65
H.P. VECTRA SERIES 4 5/133 333 XXX Xxx-97 1,657.27 27.62 1,629.65
H.P. VECTRA SERIES 4 5/133 333 XXXXXX Xxx-97 1,657.27 27.62 1,629.65
H.P. VECTRA SERIES 4 5/133 333 2414 H.P. VECTRA SERIES 4 5/133 May-97 1,657.27 27.62 1,629.65
H.P. VECTRA SERIES 4 5/133 333 2396 H.P. VECTRA SERIES 4 5/133 May-97 1,657.27 82.86 1,574.41
H.P. VECTRA SERIES 4 5/133 350 2440 H.P. VECTRA SERIES 4 5/133 Feb-97 1,626.96 108.47 1,518.51
H.P. VECTRA SERIES 4 5/133 350 2476 H.P. VECTRA SERIES 4 5/133 Feb-97 1,626.96 108.47 1,518.51
H.P. VECTRA SERIES 4 5/133 350 2423 H.P. VECTRA SERIES 4 5/133 Feb-97 1,410.53 94.04 1,316.49
Page 2
50
INVENTORY LIST
H.P. VECTRA SERIES 4 5/133 360 2408 H.P. VECTRA SERIES 4 5/133 Feb-97 1,410.53 94.04 1,316.49
H.P. VECTRA SERIES 4 5/133 365 2481 H.P. VECTRA SERIES 4 5/133 Feb-97 1,410.53 94.04 1,316.49
H.P. VECTRA SERIES 4 5/133 365 2482 H.P. VECTRA SERIES 4 5/133 Mar-97 1,088.00 54.40 1,033.60
H.P. VECTRA SERIES 4 5/133 365 2479 H.P. VECTRA SERIES 4 5/133 Mar-97 1,088.00 54.40 1,033.60
H.P. VECTRA SERIES 4 5/133 365 2477 H.P. VECTRA SERIES 4 5/133 Mar-97 1,088.00 54.40 1,033.60
H.P. VECTRA SERIES 4 5/133 365 2478 H.P. VECTRA SERIES 4 5/133 Mar-97 1,088.00 54.40 1,033.60
H.P. VECTRA SERIES 4 5/133 365 2480 H.P. VECTRA SERIES 4 5/133 Mar-97 1,088.00 54.40 1,033.60
H.P. VECTRA SERIES 4 5/133 512 2397 H.P. VECTRA SERIES 4 5/133 May-97 1,657.27 27.62 1,629.65
H.P. VECTRA SERIES 4 5/133 333 H.P. VECTRA SERIES 4 5/133 May-97 1,657.27 82.86 1,574.41
H.P. VECTRA SERIES 4 5/133 W CD 365 H.P. VECTRA SERIES 4 5/133 W CD 1,657.27 82.86 1,574.41
H.P. VECTRA SERIES 4 5/133 W CD ROM 830 H/P VECTRA SERIES 4 5/133 W CD ROM 1,657.27 82.86 1,574.41
HITACHI 17 MONITO 333 HITACHI 17 MONITO May-97 485.00 13.47 471.53
000 Xxx-00 6,031.00 502.58 5,528.42
000 Xxx-00 6,031.00 502.58 5,528.42
IMB THINKPAD 560 400 2451 IBM THINKPAD 560 Sep-96 4,008.53 1,002.13 3,006.40
400 2406 IBM THINKPAD 560 Sep-96 4,008.53 1,002.13 3,006.40
2390 IBM THINKPAD 560 Sep-96 4,008.53 1,002.13 3,006.40
KENWOOD DC MDT KPS-10 000
XXXXXXX XX XXX XXX-00 000
XXXXXXX XX MDT KPS-10 333
LANTRONIX PROTOCOL PRINT SENSOR 318 LANTRONIX PROTOCAL PRINT SENSOR Jul-96 495.00 110.00 385.00
MAGNAVOX MONITO 360 1721 MAGNAVOX MONITO 0.00
MAGNAVOX MONITO 365 1339 MAGNAVOX MONITO 0.00
MASTERING DATA WINDOWS 315 May-96 1,350.00 315.00 1,035.00
MDI COMM CONTROLLER 333
MONITO DATA STORAGE 333 2275 MONITO DATA STORAGE 0.00
NANAO 5501 w MONITO 400 2329 NANAO 5501 w MONITO Nov-96 772.56 90.13 682.43
NANAO FLEX MONITO 356 1860 NANAO FLEX MONITO 0.00
NANAO FLEX MONITO 400 2328 NANAO FLEX MONITO 0.00
NDI BASE STATION CONTROLLER 333
OKIDATA MICRODRIVE 320 9 PIN PRINTER 333
OMNIS 7/3 DVLPR-WINDOWS 315 Oct-94 11,805.85 10,494.09 1,311.76
OPIQUEST 17690DC MONITO 315 2099 OPIQUEST 17690DC MONITO 0.00
OPIQUEST 17690DC MONITO 333 OPIQUEST 17690DC MONITO 0.00
PANASONIC CF 25 PORTABLE COMPUTER PANASONIC CF 25 PORTABLE COMPUTER 0.00
400 PC AT HOME 0.00
PHILIPS FAST REFRESH MONITO 365 1656 PHILIPS FAST REFRESH MONITO 0.00
POWER BUILDER FOR WINDOWS 315 Oct-95 8,873.00 4,929.52 3,943.48
POWERBUILDER ENTERPRISE SOFT 315 Apr-96 3,322.24 1,291.96 2,030.26
POWERBUILDERS FOR WIN 315 Jun-96 4,460.45 1,466.62 2,973.63
PRACTICAL PERIPHERAL PM 144 MT II MODEM 318 PRACTICAL PERIPHERA PM 144 MT II MODE 0.00
PVCS FOR WINDOWS 000 Xxx-00 1,647.68 869.61 778.07
358 q smp 5166 in 1 R5/166 2bm cache Sep-96 6,851.00 1,712.75 5,138.25
RARITAN COMPUSWITCH 315 RARITAN COMPUSWITCH 0.00
S XXXX VISION 2011 MONITO 315 2012 S XXXX VISION 2011 MONITO Jan-95 1,732.00 1,347.11 384.89
SAMPO 14 MONITO 830 SAMPO MONITO 0.00
SAMPO MONITO 333 1896 SAMPO MONITO Jan-94 875.00 875.00 0.00
SAMPO MONITO 365 1842 SAMPO MONITO Jan-94 875.00 875.00 0.00
SAMPO MONITO 365 1847 SAMPO MONITO Jan-94 875.00 875.00 0.00
Page 3
51
INVENTORY LIST
SAMPO MONITO 365 1844 SAMPO MONITO Jun-94 875.00 875.00 0.00
SCSI EXPRESS HD 4000 MDI 318 SCSI EXPRESS HD 4000 MDI May-97 864.00 24.00 840.00
SMART UP POWER UP APC 315 SMART UP POWER UP APC Sep-96 1,005.00 223.33 781.67
SOFTWARE
SONY 17 MONITO 315 SONY 17 MONITO 0.00
Sep-98 4,774.00 1,060.89 3,713.11
SQA TEAM EDITION 315 May-98 802.58 289.82 512.76
SQL SERVER WIN NT SOFTWARE 315 Dec-95 1,920.00 578.00 1,344.00
SSTAR NX-1000 MULTI FONT PRINTER 333
STAND ALONE C D STAND ALONE C D 0.00
TANDEM 100A PWR +MONOTOR 365 1719 TANDEM 100A PWR +MONOTOR 0.00
TANDEM BLACK BOX 315 TANDEM BLACK BOX owned by tandem 7 0.00
TANDEM GX 5100 COMPUTER 315 2087 TANDEM GX 5100 COMPUTER Nov-95 4,333.00 1,299.90 3,033.10
TANDEM GX 5100 COMPUTER 315 2022 TANDEM GX 5100 COMPUTER Nov-95 4,333.00 1,299.90 3,033.10
TANDEM GX 5100 COMPUTER 315 2080 TANDEM GX 5100 COMPUTER Nov-95 4,333.00 1,299.90 3,033.10
TANDEM GX 5100 COMPUTER 333 2308 SARAR Nov-95 4,333.00 1,299.90 3,033.10
TANDEM GX590 COMPUTER 315 2036 TANDEM GX590 COMPUTER Nov-95 4,333.00 1,299.90 3,033.10
TANDEM GX590 COMPUTER 315 2000 TANDEM GX590 COMPUTER Nov-95 4,333.00 1,299.90 3,033.10
TANDEM K200 (DEMO BOX) 400 TANDEM K200 (DEMO BOX) 0.00
TANDEM MS 466D 333 1915 TANDEM MS 466D Jan-95 2,269.00 1,096.68 1,172.32
TANDEM MS 466D 340 1867 TANDEM MS 466D Jan-95 2,269.00 1,096.68 1,172.32
TANDEM MS 466D 350 TANDEM MS 466D Jan-95 2,269.00 1,096.68 1,172.32
TANDEM MS 466D 365 1875 TANDEM MS 466D Jan-95 2,269.00 1,096.68 1,172.32
TANDEM MS 466D 365 1868 TANDEM MS 466D Jan-95 2,269.00 1,096.68 1,172.32
TANDEM MS 575 COMPUTER 830 TANDEM MS 575 COMPUTER 0.00
TANDEM MS 466D 318 2320 TANDEM MS 466D Jan-95 2,269.00 1,096.68 1,172.32
TANDEM MS 466D 321 1866 TANDEM MS 466D Jan-95 2,269.00 1,096.68 1,172.32
TANDEM MS 466D 335 1091 TANDEM MS 466D Jan-95 2,269.00 1,096.68 1,172.32
TANDEM MS 466D 340 TANDEM MS 466D Jan-95 2,269.00 1,096.68 1,172.32
TANDEM MS 466D 400 2324 TANDEM MS 466D Jan-95 2,269.00 1,096.68 1,172.32
TANDEM MS 466D W MONITO 400 2330 TANDEM MS 466D W MONITO Jan-95 2,521.00 1,218.48 1,302.52
TANDEM MS 466D W MONITO 400 1832 TANDEM MS 466D W MONITO Jan-95 2,521.00 1,218.48 1,302.52
TANDEM NDX STP60 315 0.00
TANDEM STATION GX 5100 315 Nov-95 4,333.00 1,299.90 3,033.10
TANDEM STATION GX 5100 356 2032 TANDEM STATION GX 5100 Nov-95 4,333.00 1,299.90 3,033.10
TANDEM STATION GX 5100 356 2031 TANDEM STATION GX 5100 Nov-95 4,333.00 1,299.90 3,033.10
TANDEM STATION GX 590 315 Nov-95 4,333.00 1,299.90 3,033.10
TANDEM STATION GX 590 340 2118 TANDEM STATION GX 000 Xxx-00 4,333.00 1,299.90 3,033.10
TEXAS INSTRUMENTS DMD 2000 333
TRANS CD BOX 315 TRANS CD BOX 0.00
UNIVERSAL MOBIL COMMUN TERM 333
UPS 365 UPS 0.00
400 VIEW DIGITAL PROJECTOR Jan-97 8,569.00 2,142.25 8,426.75
VIEWSONIC 17GS MONITO 321 2273 VIEWSONIC 17GS MONITO Aug-96 575.00 143.75 431.25
VIEWSONIC 17GS MONITO 333 2112 VIEWSONIC 17GS MONITO Jul-96 610.00 169.44 440.56
VIEWSONIC 17GS MONITO 333 2377 VIEWSONIC 17GS MONITO Jul-96 610.00 169.44 440.56
VIEWSONIC 17GS MONITO 333 2398 VIEWSONIC 17GS MONITO Jul-96 610.00 169.44 440.56
VIEWSONIC 17GS MONITO 333 2301 XXXXXX Aug-96 575.00 143.75 431.25
VIEWSONIC 17GS XXXXXX 000 0000 XXXX. Aug-96 575.00 143.75 431.25
Page 4
52
----------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------
VIEWSONIC 17GS MONITO 333 2311 XXXX Aug-96 575.00 143.75 431.25
VIEWSONIC 17GS MONITO 335 2068 VIEWSONIC 17GS MONITO Jul-96 610.00 169.44 440.56
VIEWSONIC 17GS MONITO 335 2325 VIEWSONIC 17GS MONITO Aug-96 575.00 143.75 431.25
VIEWSONIC 17GS MONITO 335 2366 VIEWSONIC 17GS MONITO Aug-96 575.00 143.75 431.25
VIEWSONIC 17GS MONITO 340 2418 VIEWSONIC 17GS MONITO Jul-96 610.00 169.44 440.56
VIEWSONIC 17GS MONITO 340 2349 VIEWSONIC 17GS MONITO Jul-96 610.00 169.44 440.56
VIEWSONIC 17GS MONITO 350 2225 VIEWSONIC 17GS MONITO Jul-96 610.00 169.44 440.56
VIEWSONIC 17GS MONITO 355 2093 VIEWSONIC 17GS MONITO Jul-96 610.00 169.44 440.56
VIEWSONIC 17GS MONITO 365 2127 VIEWSONIC 17GS MONITO Jul-96 610.00 169.44 440.56
VIEWSONIC 17GS MONITO 365 2224 VIEWSONIC 17GS MONITO Jul-96 610.00 169.44 440.56
VIEWSONIC 17GS MONITO 365 2296 VIEWSONIC 17GS MONITO Jul-96 610.00 169.44 440.56
VIEWSONIC 17GS MONITO 365 2422 VIEWSONIC 17GS MONITO Jul-96 610.00 169.44 440.56
VIEWSONIC 17GS MONITO 365 2450 VIEWSONIC 17GS MONITO Oct-96 571.00 126.89 444.11
VIEWSONIC 17GS MONITO 512 2401 VIEWSONIC 17GS MONITO Jul-96 610.00 169.44 440.56
VIEWSONIC 17GS MONITO 2163 VIEWSONIC 17GS MONITO Jul-96 610.00 169.44 440.56
VOYAGER SOFTWARE 315 Oct-95 3,014.00 1,674.44 1,339.56
WIN NT SERVER SOFTWARE 315 Dec-95 1,188.99 356.69 832.30
ZENITH DATA LAPTOP 1672 ZENITH DATA LAPTOP 0.00
ZENITH DATA LAPTOP 1093 ZENITH DATA LAPTOP 0.00
ZENITH DATA MONITO 365 1549 ZENITH DATA MONITO 0.00
ZENITH DATA SYSTEM
386SX 350 1140 ZENITH DATA SYSTEM 386SX 0.00
ZENITH MONITO 333 1614 ZENITH MONITO 0.00
0.00
TANDEM SCC O 145,000.00 0.00 145,000.00
ESTIMATED PRELIMINARY
NET BOOK VALUE 477,121.83 103,202.47 373,829.36
Page 5
53
CAD PRELIMINARY INVENTORY LISTING
---------------------------------
FINAL GIVEN TO B WHITE as of 6/21/97
---------------------- -------------
purchase purchase dep net
asset description dep# tag# asset description a a date cost taken book
----------------- ---- ---- ----------------- -------- -------- ----- ----
6521 TANDEM + MONITO TERMINAL 365 6521 TANDEM + MONITO TERMINAL 0.00
6521 TANDEM + MONITO TERMINAL 365 1787 6521 TANDEM + MONITO TERMINAL 0.00
6521 TANDEM + MONITO TERMINAL 1107 6521 TANDEM + MONITO TERMINAL 0.00
6521 TANDEM + MONITO TERMINAL 333 1096 6521 TANDEM + MONITO TERMINAL 0.00
ABTRION AMP METER 333
ALR SOL SERVER 315 ALR SOL SERVER Sep-86 9,751.08 1,462,68 8,288.42
ALR TOWER WITH DISC 333 ALR TOWER WITH DISC May-86 4,776.04 1,114.41 3,661.63
AST PREMIER 100 COMPUTER 2113 AST PREMIER 100 COMPUTER 0.00
AST VISION 20 MONITO 360 2073 AST VISION 20 MONITO 0.00
XXXXXX BUBBLE JET PRINTER BJ30 318 XXXXXX BUBBLE JET PRINTER BJ30 0.00
CODEX MOTOROLA 3260 318 CODEX MOTOROLA 3260 0.00
COLOR DISPLAY MONITO (92) 365 1495 COLOR DISPLAY MONITO (92) 0.00
COLOR DISPLAY MONITO (92) 365 1807 COLOR DISPLAY MONITO (92) 0.00
COMPACT DISC STAND ALONE 321 COMPACT DISC STAND ALONE 0.00
DATA STORAGE 386-SX 360 1408 DATA STORAGE 386-SX 100.00 100.00 0.00
DATA STORAGE 486/66 365 1654 DATA STORAGE 486/66 Mar-83 2,644.00 2,644.00 0.00
DATA STORAGE MONITO OLD 333 1619 DATA STORAGE MONITO OLD 100.00 100.00 0.00
ECA MDTS 333
GENERAL DATACOMM 500 G/UXR 318 GENERAL DATACOMM 500 G/UXR 0.00
GENERAL DATACOMM 500 G/UXR 318 GENERAL DATACOMM 500 G/UXR 0.00
H.P. PRINTER USING
GREENLINE PAPER 000
XXXXXXX XX MDT KPS-10
POWER SUPPLY 000
XXXXXXX XX MDT KPS-10
POWER SUPPLY 000
XXXXXXX XX MDT KPS-10
POWER SUPPLY 333
MAGNAVOX MONITO 360 1721 MAGNAVOX MONITO 0.00
MAGNAVOX MONITO 365 1330 MAGNAVOX MONITO 0.00
MDI COMM CONTROLLER 333
MONITO DATA STORAGE 333 2275 MONITO DATA STORAGE 0.00
NANAO FLEX MONITO 358 1880 NANAO FLEX MONITO 0.00
NANAO FLEX MONITO 400 2328 NANAO FLEX MONITO 0.00
NDI BASE STATION CONTROLLER 333
OKIDATA MICRODRIVE 320 9 PIN
PRINTER 333
OPIQUEST 17690DC MONITO 315 2099 OPIQUEST 17690DC MONITO 0.00
OPIQUEST 17690DC MONITO 333 OPIQUEST 17690DC MONITO 0.00
PANASONIC CF 25 PORTABLE PANASONIC CF 25 PORTABLE 0.00
COMPUTER COMPUTER
400 PC AT HOME 0.00
PHILIPS FAST REFRESH MONITO 365 1650 PHILIPS FAST REFRESH MONITO 0.00
PRACTICAL PERIPHERAL PM 144 PRACTICAL PERIPHERA PM 144
MT II MODEM 318 MT II MODE 0.00
RARITAN COMPUSWITCH 315 RARITAN COMPUSWITCH 0.00
SAMPO 14 MONITO 830 SAMPO 14 MONITO 0.00
SOFTWARE
SONY 17 MONITO 315 SONY 17 MONITO 0.00
SSTAR NX-1000 MULTI FONT
PRINTER 333
STAND ALONE CD STAND ALONE CD 0.00
Page 1
54
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
TANDEM 100A PWR + MONOTOR 365 1719 TANDEM 100A PWR + MONOTOR 0.00
---------------------------------------------------------------------------------------------------------------------------
TANDEM BLACK BOX 315 TANDEM BLACK BOX owned by tandem? 0.00
---------------------------------------------------------------------------------------------------------------------------
TANDEM K200 (DEMO BOX) 400 TANDEM K200 (DEMO BOX) 0.00
---------------------------------------------------------------------------------------------------------------------------
TANDEM MS 575 COMPUTER 830 TANDEM MS 575 COMPUTER 0.00
---------------------------------------------------------------------------------------------------------------------------
TANDEM NDX STP60 315 0.00
---------------------------------------------------------------------------------------------------------------------------
TEXAS INSTRUMENTS DMD 2000 333
---------------------------------------------------------------------------------------------------------------------------
TRANS CD BOX 315 TRANS CD BOX 0.00
---------------------------------------------------------------------------------------------------------------------------
UNIVERSAL MOBIL COMMUN TERM 333
---------------------------------------------------------------------------------------------------------------------------
UPS 365 UPS 0.00
---------------------------------------------------------------------------------------------------------------------------
ZENITH DATA LAPTOP 1872 ZENITH DATA LAPTOP b/fore 93 100.00 100.00 0.00
---------------------------------------------------------------------------------------------------------------------------
ZENITH DATA LAPTOP 1093 ZENITH DATA LAPTOP 100.00 100.00 0.00
---------------------------------------------------------------------------------------------------------------------------
ZENITH DATA MONITO 365 1549 ZENIT DATA MONITO 100.00 100.00 0.00
---------------------------------------------------------------------------------------------------------------------------
ZENITH DATA SYSTEM 386SX 350 1140 ZENIT DATA SYSTEM 386SX 100.00 100.00 0.00
---------------------------------------------------------------------------------------------------------------------------
ZENITH MONITO 333 1614 ZENITH MONITO 0.00
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
0.00
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
ESTIMATED PRELIMINARY NET BOOK VALUE 17,771.12 5,821.07 11,950.05
---------------------------------------------------------------------------------------------------------------------------
Page 2
55
CAD PRELIMINARY INVENTORY LISTING
Additional Equipment as of 6/21/97
a asset
serial p purchase dep net
asset description dep # tag # asset description number cost taken book
----------------- ----- ----- ----------------- ------ -------- ----- --------
US Robotics 28.8 modem 315 General 0.00
Panasonic KX - 8520 printable white board 315 General 0.00
3Com Hub BTPC 315 General 0.00
TransDisk Hard Drive 315 General 0.00
APC Backup UPS 600 315 General 0.00
Viewsonic 17" Monitor 315 General 0.00
AST Vision 41 14" Monitor 315 General 0.00
Gateway Vivitron 15" monitor 315 General 0.00
HP Surestore 12000E tape backup 315 General 0.00
4 mm tapes (30) 315 General 0.00
Tandem 31000 Server 315 On loan from Tandem 0.00
Tandem 17" monitor 315 On loan from Tandem 0.00
Optiquest 17" monitor 315 For Xxxxx Xxxx 0.00
Software 315 0.00
Arcada Backup Exec 315 General 0.00
NT Server OS (3llc.) 315 General 0.00
MS SQL Server 6.5 (3 llc.) 315 General 1,328.04 419.91 906.13
MS Office '97 (2 copies) 315 given to SCC by Microsoft 0.00
MS Visual Studio '97 (2 copies) 315 given to SCC by Microsoft 0.00
MS NT 4.0 WS (10 copies) 315 Bola Agreement w/Greenbriar & Xxxxxxx 0.00
Powerbuilder Ent 5.0 (6 copies) 315 General 0.00
Delphi 2.0 Professional (1 copy) 315 General 0.00
MS Access Retail (1 copy) 315 General 0.00
MS Office '97 (6 copies) 315 General 0.00
Antivirus software (11 copies) 315 General 0.00
Lotus notes (8 user llc.) 315 General 0.00
ABC flowcharter (1 copy) 315 General 563,82 281.91 281.91
Installshield (1 llc.) 315 General 0.00
Powerlock (1 llc.) 315 General 4,002.00 1,000.50 3,001.50
Mapping software 315 Xxxx Xxxxx 0.00
XVT 315 Xxxx Xxxxx 0.00
Crescent PDQ/COM 315 Xxxx Xxxxx 0.00
Distinct IP 315 Xxxx Xxxxx 0.00
Visual Day Suite 315 Xxxx Xxxxx 0.00
Andyne GQL Dev Kit 4.11 315 Xxxxxxx 0.00
Lotus Organizer 2.1 315 Xxxxxxx 0.00
Color display monitor 350 0.00
Color display monitor 350 0.00
Viewsonic 17GS monitor 340 2349 0.00
Dell Latitude XPI 340 No. # 0.00
AST Brave 340 1881 0.00
DataStor 486-66 340 1655 0.00
Sampo KDM - 1768 340 1903 0.00
Software 340 0.00
Page 1
56
[ADD'L EQUIP]
Lotus Notes V3.33 (5 copies) 340 0.00
MS Office Windows 95 (5 copies) 340 0.00
MS Access (5 Copies) 340 0.00
MS Project (1 Copy) 340
Xxxxxx Anti Virus Control (5 Copies) 340
Outside view (5 Copies) 340
Calendar Creator (1 Copy) 340
PKZIP (5 Copies) 340
MacAfee Virus Scan (1 Copy) 340
Premier Aww version 2.2K (5 Copies) 340
A-Open 336 2299 Xxxx
Superscan Pro 620 hitachi 17" Monitor 336 2583 Xxxx
A-Open, Pentium, 120 16MB RAM 336 2384 XxXxx
Nokia 44-7L 17" Monitor 336 2526 XxXxx
Dell Laptop - Latitude 336 2466 Backs
Viewsonics 17GS 336 Backs J955308157
INSTALLATION EQUIPMENT
Microtest cable tester 318
2 Brother Labelers 318
1 Xxxxx cable labelers 318
1 set Kenwood radios 318
3 shipping cases 318
3 toolboxes compleate with tools 318
1 fiber fish tape 318
1 metal fish tape 318
1 heat gun 318
2 external CD rom drives 318
Customer spare equipment
4 lantronbr print servers 318
1 3Comm ECS 10 with cards 318
2 Hitachi monitors 318
2 Nelbuilder remote offices 318
Software
3 Microsoft office 318
2 Visio technical version 4 318
Procomm 318
Misc
1 call phone 318
3 pagers 318
Dept. 312
AST P100 Computer 312 2113 Xxxxxx Xxxxxx Computer
AST Monitor 312 2114
8 Port Hub 312
Adaptec CD Drive 312
5,891.88 1,702.32 4,189.54
Page 2
57
[ADD'L ADJUSTMENTS]
CAD PRELIMINARY INVENTORY LISTING
Additional Equipment as of 6/21/97
dep net
asset description dep# tag# asset description a asset serial number p purchase cost taken book
----------------------------- ---- ---- ----------------- - ------------------- - ------------- ----- -----
US Robotics 28.8 modem 315 General 0.00
Panasonic KX - B520 printable
white board 315 General 0.00
3Cam Hub 8TPC 315 General 0.00
TransDisk Hard Drive 315 General 0.00
APC Backup UPS 600 315 General 0.00
Viewsonic 17" Monitor 315 General 0.00
AST Vision 41 14" Monitor 315 General 0.00
Gateway Vivitron 15" monitor 315 General 0.00
HP Surestore 12000E tape
backup 315 General 0.00
4 mm tapes (30) 315 General 0.00
Tandem S1000 Server 315 On loan from Tandem 0.00
Tandem 17" monitor 315 On loan form Tandem 0.00
Optiquest 17" monitor 315 For Xxxxx Xxxx 0.00
Software 315 0.00
Arcada Backup Exec 315 General 0.00
NT Server OS (3tic) 315 General 0.00
MS Office '97 (2 copies) 315 given to SCC by 0.00
Microsoft
MS Visual Studio '97 (2 copies) 315 given to SCC by 0.00
Microsoft
MS NT 4.0 WS (10 copies) 315 Data Agreement 0.00
w/Greenbriar & Xxxxxx
Powerbuilder Ent 5.0 (6 copies) 315 General 0.00
Delphi 2.0 Professional(1 copy) 315 General 0.00
MS Access Retail (1 copy) 315 General 0.00
MS Office '97 (8 copies) 315 General 0.00
Antivirus software (11 copies) 315 General 0.00
Lotus notes (8 user lic.) 315 General 0.00
Installshield (1 lic.) 315 General 0.00
Mapping software 315 Xxxx Xxxxx 0.00
XVT 315 Xxxx Xxxxx 0.00
Crescent PDQ/COM 315 Xxxx Xxxxx 0.00
Distinct IP 315 Xxxx Xxxxx 0.00
Visual Dev Suite 315 Xxxx Xxxxx 0.00
Andyne GQL Dev Kit 4.11 315 Xxxxxxx 0.00
Lotus Organizer 2.1 315 Xxxxxxx 0.00
Color display monitor 350 0.00
Color display monitor 350 0.00
Viewsonic 17GS monitor 340 2349 0.00
Dell Latitude XPi 340 No# 0.00
AST Bravo 340 1881 0.00
DataStar 488-68 340 1655 0.00
Sampo KDM - 1768 340 1803 0.00
Software 340 0.00
Lotus Notes V3.33 (5 copies) 340 0.00
MS Office Windows 95 (5 Copies) 340 0.00
MS Access (5 Copies) 340 0.00
Page 1
58
ADD'L ADJUSTMENTS
MS Project (1 Copy) 340
Xxxxxx Anti Virus Control (5 Copies) 340
Outside View (5 Copies) 340
Scopus V3.6 (10 Copies) 340 10 licenses, -51360.50 -14,266.76 -37.093.74
Calender Creator (1 Copy) 340
PKZIP (5 Copies) 340
MacAfee Virus Scan (1 Copy) 340
Premier Aww version 2.2K (5 Copies) 340
A-Open 336 2299 Xxxx 1,401.76 256.99 1,144.77
Superscan Pro 620 hitachi 17" Monitor 336 2583 Xxxx 469.00 13.58 475.42
A-Open, Pentium 120 16MB RAM 336 2384 XxXxx 1,401.76 256.99 1,144.77
Nokia 44-7L 17" Monitor 336 2526 XxXxx
Dell Laptop - Latitude 336 2466 Backs 3,608.00 100.17 3,505.83
Viewsonics 17GS 336 Backs J955308157
INSTALLATION EQUIPMENT
Microtest cable tester 318
2 Brother labelers 318
1 Xxxxx cable labelers 318
1 set Kenwood radios 318
3 shipping cases 318
3 toolboxes compleate with tools 318
1 fiber fish tape 318
1 mietal fish tape 318
1 heat gun 318
2 external CD rom drives 318
CUSTOMER SPARE EQUIPMENT
4 lantronix print servers 318
1 3Comm ECS 10 with cards 318
2 Hitachi monitors 318
2 Netbuilder remote offices 318
SOFTWARE
3 Microsoft office 318
2 Visio technical version 4 318
Procomm 318
MISC
1 cell phone 318
3 pagers 318
DEPT. 312
AST P100 Computer 312 2113 Xxxxxx Xxxxxx Computer
AST Monitor 312 2114
8 Port Hub 312
Adaptec CD Drive 312
Add'l memory for SCC 0 13,616.80 0.00 13,616.80
-30,843.18 -13,639.03 -17,204.15
Page 2
59
Schedule 1. le Trademarks
ASSET PURCHASE AGREEMENT BETWEEN SCC/PRINTRAK
--------------------------------------------------------------------------------
SCHEDULE 1.LE TRADEMARKS
R.O.D.E.O. - see attached
00
XXXXXX XXXXXX XXXXXXXXXX XX XXXXXXXX
Patent and Trademark Office
SERIAL NO. APPLICANT PAPER NO.
XXXX ADDRESS:
ADDRESS ACTION NO. 0000 Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000-0000
MAILING DATE If no fees are enclosed, the
address should
include the words "Box 5"
Please provide in all
correspondence:
REF. NO.
1. Filing Date, serial number,
xxxx and Applicant's name.
FORM PTO-1525 (5-90) U.S. DEPT. OF COMM. XXX. & TM OFFICE. 2. Mailing date of this action.
3. Examining Attorney's name and
Law Office number
4. Your telephone number and ZIP code
TELEPHONE NUMBER
303 / 581-5600
ATTORNEY
PERSONAL PREVIEW April 8, 1997 APPLICANT
61
CALL RECORD/NOTES
OFFICE SEARCH: The examining attorney has searched the Office records and has
found no similar registered or pending xxxx which would bar registration under
Trademark Act Section 2(d), 15 U.S.C. Section 1052(d). TMEP Section 1105.01.
RE: Serial Number 75/16'3 8 1 0
-----------------------------------
This case will be given priority as an amended case if Applicant or applicant's
attorney responds to the requirements stated below within two months of the
above mailing date. In any event a proper response to this Priority Action must
be received within SIX MONTHS from the mailing date stated above in order to
avoid ABANDONMENT.
Applicant will amend the method of use statement to indicate that the
xxxx- is intended to be used on labels attached to the goods and on
instructional manuals for the goods.
The applicant must indicate whether the person who signed the
application is an officer of the applicant. TMEP Section 803.09. If
not, the applicant should note the following.
If the application was not signed by the applicant or by a person
having color of authority to sign, the application is void. 37 C.F.R.
Section 2.21(a)(6). To be properly signed, an application must be
signed by the applicant, a member of the applicant firm (e.g., a
general or active partner of an applicant partnership), or the officer
of the applicant corporation or association. Trademark Act Section 1.
15 U-S-C Section 105 1.
If the application was not signed by the appropriate person as
described above but the applicant asserts that the person who signed
had color of authority to do so, the applicant must submit evidence
that the person who signed:
(1) had firsthand knowledge of the truth of the statements in
the verification or declaration and
-2-
62
(2) had actual or implied authority to act on behalf of the
applicant.
If the examining attorney determines that the person who signed the application
had color of authority, the application will not be deemed void as filed.
However, a substitute verification or declaration under -'17 C.F.R. Section
2.20, signed by the proper person, must be submitted. 37 C.F.R. Section 2.71(c).
The following is a properly worded declaration under '37 C.F.R. Section 2.20. At
the end of the response, the applicant should insert the declaration signed by
an officer of applicant.
The undersigned, being hereby warned that willful false statements and the like
so made are punishable by fine or imprisonment, or both, under 18 ' U.S.C. 1001,
and that such willful false statements may jeopardize the validity of the
application or any resulting registration, declares that he/she is properly
authorized to execute this application on behalf of the applicant; he/she
believes the applicant to be the owner of the trademark/service xxxx sought to
be registered, or, if the application is being filed under 15 U.S.C. 1051(b),
he/she believes applicant to be entitled to use such xxxx in commerce; to the
best of his/her knowledge and belief no other person, firm, corporation, or
association has the right to use the xxxx in commerce, either in the identical
form thereof or in such near resemblance thereto as to be likely, when used on
or in connection with the goods/services of such other person, to cause
confusion, or to cause mistake, or to deceive; and that all statements made of
his/her own knowledge are true and all statements made on information and belief
are believed to be true.
/s/ XXXXX X. XXXXXXXX
--------------------------------------
(Signature)
XXXXX X. XXXXXXXX
--------------------------------------
Print or type Name and Position)
April 23, 1997
--------------------------------------
(Date)
/s/ XXXXX XXXXXXX
--------------------------------------
Xxxxx Xxxxxxx, Examining Attorney
Law Office 103, (000) 000-0000 ex 127
63
SCHEDULE 1.2
PERFORMANCE AND BID BONDS
[PAGES 1-44 DELETED]
64
SCHEDULE 4.3A
[PAGES 1-10 DELETED]
65
SCHEDULE 4.3B
66
SCHEDULE 4.5(d)
67
TANDEM COMPUTERS CREDIT CORPORATION
DELIVERY AND
ACCEPTANCE CERTIFICATE
("Acceptance Certificate")
LEASE AGREEMENT NO. 8000020
DATED AS OF MARCH 21, 1994
BETWEEN
TANDEM COMPUTERS CREDIT CORPORATION, Lessor, and
SCC COMMUNICATIONS CORP., Lessee
Acceptance Date: JANUARY 1, 1997
This Acceptance Certificate is issued pursuant to the Lease Agreement
designated above.
Lessee acknowledges that all of the Equipment specified on Schedule No. 029 (i)
has been delivered to, inspected by, and accepted as of this date for lease by
Lessee, (ii) is of a size, design, capacity and manufacture acceptable to
Lessee and suitable for Lessee's purposes, (iii) is in good working order,
repair and condition, and (iv) has been installed to Lessee's satisfaction or
located, as the case may be, at the location specified on the Schedule.
Lessee confirms and agrees that no Event of Default under the Lease Agreement
has occurred and is continuing.
The person signing this Acceptance Certificate on behalf of Lessee hereby
certifies that such person has read and acknowledges all terms and conditions
of the Lease Agreement, and is duly authorized to execute this Acceptance
Certificate on behalf of the Lessee.
The terms used in this Acceptance Certificate shall have the same meanings
defined in the Lease Agreement designated above.
SCC COMMUNICATIONS CORP.,
Lessee
By: /s/ Xxxxx X. Xxxxxxxx
----------------------
Title: CFO
Date: 12/13/96
68
Counterpart No. 2 of 2 Possession and transfer of counterpart No. 1 only is
effective to transfer ownership or create a security interest in this Schedule.
TANDEM COMPUTERS CREDIT CORPORATION
SCHEDULE
Lease Agreement No. 8000020
Schedule No. 029 ("Schedule"),
Dated as of 9-30, 1996, to
Lease Agreement,
Dated as of March 21, 1994, between
TANDEM COMPUTERS CREDIT CORPORATION, Lessor
00000 Xxxxxx Xxxxxxx
Xxxxxxxxx, XX 00000
-and-
SCC COMMUNICATIONS CORP., Lessee
0000 Xxxxxxx Xxxx
Xxxxxxx, XX 00000-0000
1. EQUIPMENT DESCRIPTION:
Unit Total
Quantity Description Model Acquisition Cost
-------- ----------- ----- ----------------
See Exhibit A, System #18639/31
Installation, if any, and freight charges to be billed separately.
Aggregate Acquisition Cost $315,973.80
2. EQUIPMENT LOCATION: Board of County Commissioners, Broward County
000 X. Xxxxxxx, Xxxx 000
Xx. Xxxxxxxxxx, XX 00000
County: ------------------------------------
3. INVOICING INFORMATION:
Street Address 0000 Xxxxxxx Xxxx
-------------------
City, State & Zip Code Xxxxxxx, XX 00000-0000
---------------------------
Department Accounts Payable
---------------------------------------
Person to Contact
Regarding Invoice Accounts Payable Clerk
--------------------------------
Phone Number (000) 000-0000
-------------------------------------
Lessee Reference Number
to be Reflected on Invoice N/A
-----------------------
69
4. LEASE TERM: Thirty-six (36) months commencing January 1, 1997.
5. RENT: The Rent during the Lease Term shall be payable in that number of
consecutive payments indicated below, in advance on the first day of each
month commencing January 1, 1997, and each Rent payment shall be in an
amount equal to the indicated percentage of Aggregate Acquisition Cost.
Equipment
Description Payments Rent
----------- -------- ----
See Exhibit A 1 - 36 $6,522.00
attached
At the expiration of the Lease Term, provided no Event of Default has
occurred and is continuing, Lessee may either (i) exercise the purchase
option set forth in Section 9 of this Schedule, or (ii) with ninety (90)
days' prior written notice to Lessor, return the Equipment in accordance
with Section 9 of the Lease Agreement. If Lessee does not exercise the
purchase option or provide Lessor with said ninety (90) days' notice, the
Lease Term shall automatically extend on a month-to-month basis, at the Rent
in effect at the expiration of the original Lease Term.
6. LATE CHARGE: Lessee shall pay a late charge of two percent (2%) each month
on any past due Rent or other amounts due and payable hereunder.
7. INSURANCE: In compliance with Section 13 of the Lease Agreement, Lessor
shall be included as an additional insured under the Lessee's comprehensive
general liability policy for bodily injury and property damage, and as loss
payee under the Lessee's all-risk property insurance policy, which policies
shall not be cancelled nor any reduction or restriction of coverage be
effected without thirty (30) days prior written notice to Lessor by
Certified Mail, Return Receipt Requested.
Bodily injury and property damage coverage shall provide for a minimum
requirement of $1,000,000 and physical damage for a minimum requirement
equal to the Casualty Value, subject to a deductible not in excess of
__________.
Insurance Company________________________
Contact & Telephone______________________
Address__________________________________
8. CASUALTY VALUE: The casualty value, as calculated from time to time by
Lessor, shall be equal to one hundred and two percent (102%) of the
Aggregate Acquisition Cost reduced over time by applying Rent payments first
to interest calculated at a rate per annum equal to the Prime Rate in effect
on the commencement date as published by the Wall Street Journal plus two
percent (2%), and second to reduce the unamortized principal ("Casualty
Value"). In the event that the Lessor does not receive the Casualty Value as
provided for in the Lease Agreement on or before the Rent payment date next
following an Event of Loss, the Lessee shall pay the Lessor for the period
of time beginning with the
70
Rent payment date next following an Event of Loss and ending on the date the
Lessor receives the Casualty Value, interest, on a monthly basis, for the
Casualty Value due under this Schedule, calculated at an annual interest
rate equal to the lesser of a) the then current prime interest rate as
published by The Wall Street Journal plus two percent (2%); or b) the
maximum rate permitted by law, but in no event shall the Lessee unreasonably
delay payment of such Casualty Value.
9. PURCHASE OPTION: At the expiration of the Lease Term, provided no Event of
Default has occurred and is continuing, and provided that the Lease
Agreement has not otherwise been terminated, the Lessee, having complied
with all of the terms and conditions of the Lease Agreement, at its option
and with ninety (90) days' prior written notice may elect to return the
Equipment to the Lessor. If the Lessee does not elect this option, the
Lessee may purchase the Hardware for its Fair Market Value.
10. SCHEDULE INTENT: This Schedule has been entered into on the basis that it
shall be construed as a lease for the purposes of all federal, state, and
local taxes on, based on, or measured by income and that Lessor shall be
entitled to such deductions, credits and other benefits as are provided to
an owner of tangible personal property.
11. DEFINITIONS: The terms used in this Schedule which are not otherwise defined
herein shall have the meanings set forth in the Lease Agreement identified
above.
12. TERMS OF SCHEDULE: Lessor and Lessee agree that this Schedule shall
constitute a lease of the Equipment described in Section 1 of this Schedule,
upon the execution and delivery to Lessor by Lessee of an Acceptance
Certificate with respect to such Equipment, subject to the terms and
conditions of this Schedule and of the Lease Agreement, the terms and
conditions of which are hereby incorporated by reference in this Schedule
and made a part of this Schedule to the same extent as if such terms and
conditions were set forth in full in this Schedule.
IN WITNESS WHEREOF, Lessor and Lessee have caused this Schedule to be duly
executed by their authorized representative as of the date first above written.
TANDEM COMPUTERS CREDIT CORPORATION, SCC COMMUNICATIONS CORP.,
Lessor Lessee
By /s/ Xxxxx Xxxxxx By /s/ Xxxxx X. Xxxxxxxx
--------------------------------- -------------------------
Title Ass't Vice President Title CFO
------------------------------ ----------------------
Date 9/30/96 Date 9/30/96
------------------------------- -----------------------
71
EXHIBIT A
LEASE AGREEMENT #8000020
SCHEDULE #029
SYSTEM/ PRODUCT EXTENDED
ADDON NUMBER DESCRIPTION QTY TOTAL
------- ------- ----------- --- -----------
18639/31 SOFTWARE LICENSE FEES (36 months) $142,668.00
SOFTWARE MAINTENANCE FEES (1-36) $ 41,724.00
-----------
SUBTOTAL $184,392.00
SYSTEM/ PRODUCT EXTENDED
ADDON NUMBER DESCRIPTION QTY TOTAL
------- ------- ----------- --- -----------
18639/31 T16/K232-UP UPGR CLX 6/7/8. CYC/R.K1000 TO K2000 1 $98,000.00
T16/K232-UPE UPGR CLX 6/7/8. CYC/R.K1K TO K2000EXP 1 $98,000.00
T16/KR1032E RETURN CREDIT K1000 32MB PROC PR.EXP 1 ($25,000.00)
T16/KR1032B RETURN CREDIT K1000 32MB PROC.PR.BAS 1 ($25,000.00)
T16/7272-UP K1000/CLX TO K2000 UP I/O CAB BLK/BG 1 $2,500.00
T16/SA73MC NONSTOP KERNEL (PER SYSTEM) 1 $0.00
T16/SA57MC EXPAND 1 $0.00
T16/SA58MC NONSTOP TS/MP 1 $0.00
T16/SA59MC PATHWAY/TS 1 $0.00
T16/SA01MC BASIC OPERATIONS MANAGEMENT PACKAGE 1 $0.00
T16/SD20MC TANDEM TCP/IP 1 $0.00
T16/SD70MC TCP/IP LAN PRINT SPOOLER 1 $0.00
T16/SE08MC NONSTOP VHS - VIRTUAL HOME TERMINAL 1 $0.00
T16/3615-0 CNTRLR.HI-PERF.E-NET.W/O TRANS 3 $17,550.00
T16/3613C 3613 TRADE-IN CREDIT FOR 3615 3 ($7,650.00)
T16/4250 DISK DRIVE. 2GB 8 $31,960.00
-----------
SUBTOTAL $190,360.00
DISCOUNT ($58,778.20)
-----------
SUBTOTAL $131,581.80
$315,973.80
AGGREGATE ACQUISITION COST:
CLX PLUS UPGRADE RENT ($184,393.00/36) $5,122.00
ADD-ON RENT ($44,360.00 x .03156) 1,400.00
---------
TOTAL RENT $6,522.00
FREIGHT TO BE INVOICED AND REMITTED SEPARATELY.
EQUIPMENT LOCATION:
BOARD OF COUNTY COMMISSIONERS
BROWARD COUNTY
000 X. XXXXXXX XXXXXX, XXXX 000
FT. XXXXXXXXXX, XX 00000
scc. list 29
72
Schedule 4.5d Leases
ASSET PURCHASE AGREEMENT BETWEEN SCC/PRINTRAK
________________________________________________________________________________
Schedule 4.5d Leases
Tandem Lease Agreement No. 8000020 Schedule No. 28 - see attached
Tandem Lease Agreement Xx. 0000000 Xxxxxxxx Xx. 00 - see attached
Sycamore Building & Investment Corporation - see attached
73
THIS INDENTURE, Made this 1st day of June 1996, by and between Sycamore
Building & Investment Corporation, lesser, of the Town of Summit, County of
Waukesha, State of Wisconsin, and S.C.C. Communications Corporation, lessee, of
the City of Boulder, County of Boulder, State of Colorado.
WITNESSETH. That the said lessor does hereby lease, demise and let unto
the said lessee the following described premises, in the Village of Dousman,
County of Waukesha, State of Wisconsin, known as No. 000 Xxx Xxxxxx, Xxxxxxx,
Xxx. Street, to-wit: Suite A, the above described premises to be used as
Office.
To hold for the term of One (1) Year, beginning on the 1st day of July,
1996, and ending on the 30th day of June, 1997, the said lessee yielding and
paying therefor the total rent of $3,600.00 Dollars, for the term, payable as
follows: Beginning on the 1st day of July in the amount of $300.00 and
continuing each month until the end of the term.
The acceptance by the lessor of one month's rent for the first month after
the expiration date of this lease shall constitute a renewal for a period of
one month only and each subsequent acceptance of a month's rent shall
constitute a further renewal for a like period.
And the said lessee promises to pay the said rent at the times and in the
manner aforesaid, during the continuance of said term, and not to underlease the
said premises or any part thereof, nor assign this lease without the consent of
the lessor in writing, and to quit and deliver up the same to the lessor or
_________________ attorney, peaceably and quietly at end of said term, and also
to keep the same in as good repair as the same are in at the commencement of
said term, reasonable use and wearing thereof and damage by accidental fire or
other accidents not happening through the neglect of the lessee,
__________________ agents or servants only excepted.
And the said lessee, further covenants and agrees that will
during the term of this lease, pay all water rates levied and assessed against
the premises hereby leased, for water used or to be used therein, at the time
they become due and payable.
The lessee further agrees to obey all ordinances of the Village of Dousman
in regard to cleaning of the street, alleys and sidewalks in front of the
premises hereby leased and any and all lawful orders, rules and regulations of
the proper health officers of said Village of Dousman.
And that the said lessee will, during the last six weeks of said term,
allow to be put up and will safely keep in such conspicuous part of said
premises as lessor shall designate, a sign or card, showing that said premises
are "To Let" or "For Rent" and the place of inquiry, such card or sign to be
furnished for that purpose by said lessor.
And the said lessor may enter to view the premises hereby leased for the
purpose of examining or exhibiting the same or making whatever repairs or
alterations on said premises the lessor may deem necessary; and may expel the
lessee if they shall fail to pay the rent and assessments, or refuse to obey
the said ordinances and rules and regulations as aforesaid, or shall underlease
the premises or any part thereof or assign this lease without the consent of
the lessor, in writing.
Lessee shall indemnify Lessor and hold Lessor harmless from and against
any and all claims, actions, liability and expense arising out of the loss of
life, personal injury and/or damage to property by reason of the use or
occupancy of the leased premises by Lessee. Lessee shall carry own content
insurance and liability insurance for the leased area, naming Sycamore Building
as the additional insured.
Lessee, at their expense, will be responsible for updating their space for
their own business purposes.
Included in the rental is the carpet and window blinds. Lessee is
responsible for electric which is metered separately for the space. Parking
will be on a first come first serve basis. Lessee will share washroom
facilities with adjacent unit. It will be up to the tenants to keep entry hall
and washroom clean.
74
beginning the day of
July, 1996, and ending on the 30th day of June, 1997, the said lessee yielding
and paying therefor the total rent of $3,600.00 Dollars, for the term, payable
as follows: Beginning on the 1st day of July in the amount of $300.00 and
continuing each month until the end of the term.
The acceptance by the lesser of one month's rent for the first month after
the expiration date of this lease shall constitute a renewal for a period of
one month only and each subsequent acceptance of a month's rent shall
constitute a further renewal for a like period.
And the said lessee promises to pay the said rent at the times and in the
manner aforesaid, during the continuance of said term, and not to underlease
the said premises or any part thereof, nor assign this lease without the consent
of the lessor in writing, and to quit and deliver up the same to the lessor
or attorney, peaceably and quietly at end of said term, and also to
keep the same in as good repair as the same are in at the commencement of said
term, reasonable use and wearing thereof and damage by accidental fire or other
accidents not happening through the neglect of the lessee, agents or
servants only excepted.
The lessee further agrees to obey all ordinances of the Village of Dousman
in regard to and any and all lawful orders, rules and regulations of the proper
health officers of said Village of Dousman.
And that the said lessee will, during the last six weeks of said term,
allow to be put up and will solely keep in such conspicuous part of said
premises as lessor shall designate, a sign or card, showing that said premises
are "To Let" or "For Rent" and the piece of inquiry, such card or sign to be
furnished for that purpose by said lessor.
And the said lessor may enter to view the premises hereby leased for the
purpose of examining or exhibiting the same or making whatever repairs or
alterations on said premises the lessor may deem necessary; and may expel the
lessee if they shall fail or pay the rent and assessments, or refuse to obey the
said ordinances and rules and regulations as aforesaid, or shall underlease the
premises or any part thereof, or assign this lease without the consent of the
lessor, in writing.
Lessee shall indemnify Lessor and hold Lessor harmless from and against any and
all claims, actions, liability and expense arising out of the loss of life,
personal injury and/or damage to property by reason of the use or occupancy of
the leased premises by Lessee. Lessee shall carry own content insurance and
liability insurance for the leased area, naming Sycamore Building as the
additional insured.
Lessee, at their expense, will be responsible for updating their space for their
own business purposes.
Included in the rental is the carpet and window blinds. Lessee is responsible
for electric which is metered separately for the space. Parking will be on a
first come first serve basis. Lessee will share washroom facilities with
adjacent unit. It will be up to the tenants to keep entry hall and washroom
clean.
Lessee, at their expense, will provide container for trash and recycleables.
Rent checks will be payable to: Sycamore Building & Investment. Checks are due
between the 1st and 3rd of each month. If a check is received after the 3rd it
is subject to a 10% (of the amount of the check) late fee. If a check is
returned non-sufficient funds a 10% (of the amount of the check) late fee is
due. Checks can be mailed to: 00000 X. Xxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxx 00000,
in which case I will take the post-marked date on the envelope as the date paid.
Lessee to tender last months rent to be held in the general operating account
of Sycamore Building & Investment until the end of the lease or any extension.
This sum can be applied to outstanding rent or other expense owed Lessor.
75
And the said leasee further covenants and agrees to pay and discharge all
reasonable costs, attorney's fees and expenses that shall be made and incurred
by the said lessor in enforcing the covenants and agreements of this lease.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
The words "lessor" and "lessee" when used herein shall be taken to mean
either the singular or the plural, as the case may be, and the provisions of
this instrument shall extend and apply to the heirs, executors, administrators,
legal representatives, successors and assigns of the respective parties.
In Witness Whereof, the said parties have hereunto set their hands and
seals the day and year first above written.
SIGNED AND SEALED IN PRESENCE OF XXXXX X. XXXXXXXX (SEAL)
----------------------------
(SEAL)
----------------------------
/S/ Illegible (SEAL)
----------------------------
PRESIDENT (SEAL)
----------------------------
STATE OF COLORADO | (Illegible)
| ss.
Boulder County. |
Personally came before me, this 14th day of June, A.D., 1996, the above
named Xxxxx X. Xxxxxxxx to me known to be the _________, who executed the
foregoing instrument and acknowledged the same.
NOTARY PUBLIC Eve Childress
EVE CHILDRESS ---------------------------------
STATE OF COLORADO Notary Public, Boulder County, CO
My Commission expires 3/21/99,
A.D., 19 __
GUARANTEE
For value received ______________ hereby guarantee the payment of the Rent
and the performance of the covenants and agreements of the part _____ of the
second part in the within Lease in the manner and form as in said lease
provided.
Witness ____________ hand ___ and seal ___ this _________________ day of
_________________, 19__.
76
Rent payment date next following an Event of Loss and ending on the date
the Lessor receives the Casualty Value, interest, on a monthly basis, for
the Casualty Value due under this Schedule, calculated at an annual
interest rate equal to the lesser of a) the then current prime interest
rate as published by The Wall Street Journal plus two percent (2%); or b)
the maximum rate permitted by law, but in no event shall the Lessee
unreasonably delay payment of such Casualty Value.
9. PURCHASE OPTION: At the expiration of the Lease Term, provided no Event
of Default has occurred and is continuing, and provided that the Lease
Agreement has not otherwise been terminated, the Lessee, having complied
with all of the terms and conditions of the Lease Agreement, at its option
and with ninety (90) days' prior written notice may elect to return the
Equipment to the Lessor. If the Lessee does not elect this option, the
Lessee may purchase the Hardware for its Fair Market Value.
10. SCHEDULE INTENT: This Schedule has been entered into on the basis that it
shall be construed as a lease for the purchase of all federal, state, and
local taxes on, based on, or measured by income and that Lessor shall be
entitled to such deductions, credits or other benefits as are provided to
an owner of tangible personal property.
11. DEFINITIONS: The terms used in this Schedule which are not otherwise
defined herein shall have the meanings set forth in the Lease Agreement
identified above.
12. TERMS OF SCHEDULE: Lessor and Lessee agree that this Schedule shall
constitute a lease of the Equipment described in Section 1 of this
Schedule, upon the execution and delivery to Lessor by Lessee of an
Acceptance Certificate with respect to such Equipment, subject to the terms
and conditions of this Schedule and of the Lease Agreement, the terms and
conditions of which are hereby incorporated by reference in this Schedule
and made a part of this Schedule to the same extent as if such terms and
conditions were set forth in full in this Schedule.
IN WITNESS WHEREOF, Lessor and Lessee have caused this Schedule to be duly
executed by their authorized representative as of the date first above written.
TANDEM COMPUTERS CREDIT CORPORATION, SCC COMMUNICATIONS CORP.,
Lessor Lessee
By /s/ Xxxxx Xxxxxx By /s/ Xxxxx X. Xxxxxxxx
---------------------------------- --------------------------------
Xxxxx Xxxxxx
Title Ass't Vice President Title CFO
------------------------------- -----------------------------
Date 9/30/96 Date 9/27/96
-------------------------------- -------------------------------
(Rev.d 3/95)
77
EXHIBIT A
LEASE AGREEMENT #8000020
SCHEDULE #028
SYSTEM/ PRODUCT EXTENDED
ADDON NUMBER DESCRIPTION QTY TOTAL
-------- -------- ------------------------------------------------ ------- --------------
14556/24 SOFTWARE LICENSE FEES (36 months) $160,956.00
SOFTWARE MAINTENANCE FEES (1-36) $ 46,296.00
--------------
SUBTOTAL $207,252.00
SYSTEM/ PRODUCT EXTENDED
ADDON NUMBER DESCRIPTION QTY TOTAL
-------- -------- ------------------------------------------------ ------- --------------
14556/24 T16/K232-UP UPGR CLX 6/7/8, CYC/R.K1000 TO K2000 1 $ 98,000.00
T16/K232-UPE UPGR CLX 6/7/8, CYC/R.K1K TO K2000EXP 1 $ 98,000.00
T16/RC02-232 UPG CREDIT. CLX 6/7/8 TO K232UP, UPE 2 $(74,000.00)
T16/SA01MC BASIC OPERATIONS MANAGEMENT PACKAGE 1 $0.00
T16/SA57MC EXPAND 1 $0.00
T16/SA58MC NONSTOP TS/MP 1 $0.00
T16/SA73MC NONSTOP KERNEL (PER SYSTEM) 1 $0.00
T16/9060MC X25AM X25 ACCESS METHOD 1 $0.00
T16/9064MC SNAX/XF 1 $0.00
T16/9076MC 6100 BSC POINT-TO-POINT 1 $0.00
T16/9088MC ENVOYACP/XF 1 $0.00
T16/9089MC SNAX/HIGH LEVEL SUPPORT 1 $0.00
T16/RC800-16 RETURN 800 16MB PROCESSOR PAIR 2 $0.00
T16/SA59MC PATHWAY/TS 1 $0.00
--------------
SUBTOTAL $122,000.00
DISCOUNT $(27,890.60)
--------------
SUBTOTAL $ 94,109.40
AGGREGATE ACQUISITION COST: $301,361.40
--------------
CLX PLUS UPGRADE RENT ($207,252.00/36) $ 5,757.00
--------------
TOTAL RENT $ 5,757.00
FREIGHT TO BE INVOICED AND REMITTED SEPARATELY.
EQUIPMENT LOCATION:
LAS VEGAS METROPOLITAN POLICE DEPARTMENT
0000 Xxx Xxxxx Xxxx. Xxxxx
Xxx Xxxxx, XX 00000
78
TANDEM COMPUTERS CREDIT CORPORATION
DELIVERY AND
ACCEPTANCE CERTIFICATE
("Acceptance Certificate")
LEASE AGREEMENT NO. 8000020
DATED AS OF MARCH 21, 1994
BETWEEN
TANDEM COMPUTERS CREDIT CORPORATION, Lessor, and
SCC COMMUNICATIONS CORP., Lessee
Acceptance Date: NOVEMBER 1, 1995
This Acceptance Certificate is issued pursuant to the Lease Agreement designated
above.
Lessee acknowledges that all of the Equipment specified on Schedule No. 028 (i)
has been delivered to, inspected by, and accepted as of this date for lease by
Lessee, (ii) is of a size, design, capacity and manufacture acceptable to Lessee
and suitable for Lessee's purposes, (iii) is in good working order, repair and
condition, and (iv) has been installed to Lessee's satisfaction or located, as
the case may be, at the location specified on the Schedule.
Lessee confirms and agrees that no Event of Default under the Lease Agreement
has occurred and is continuing.
The person signing this Acceptance Certificate on behalf of Lessee hereby
certifies that such person has read and acknowledges all terms and conditions
of the Lease Agreement, and is duly authorized to execute this Acceptance
Certificate on behalf of the Lessee.
The terms used in this Acceptance Certificate shall have the same meanings
defined in the Lease Agreement designated above.
SCC COMMUNICATIONS CORP.,
Lessee
By: /s/ Xxxxx X. Xxxxxxxx
----------------------
Title: CFO
----------------------
Date: 12/13/96
----------------------
(Rev 12/89)
79
Counterpart No. 2 of 2 Possession and transfer of counterpart No. 1 only is
effective to transfer ownership or create a security interest in this Schedule.
TANDEM COMPUTERS CREDIT CORPORATION
SCHEDULE
Lease Agreement No. 8000020
Schedule No. 028 ("Schedule"),
Dated as of September 19, 1996, to
Lease Agreement,
Dated as of March 21, 1994, between
TANDEM COMPUTERS CREDIT CORPORATION, Lessor
00000 Xxxxxx Xxxxxxx
Xxxxxxxxx, XX 00000
-and-
SCC COMMUNICATIONS CORP., Lessee
0000 Xxxxxxx Xxxx
Xxxxxxx, XX 00000-0000
1. EQUIPMENT DESCRIPTION:
Unit Total
Quantity Description Model Acquisition Cost
-------- ----------- ----- ----------------
See Exhibit A, System #14556/24
Installation, if any, and freight charges to be billed separately.
Aggregate Acquisition Cost $301,361.40
2. EQUIPMENT LOCATION: LAS VEGAS METROPOLITAN POLICE DEPARTMENT
0000 Xxx Xxxxx Xxxx Xxxxx
Xxx Xxxxx, XX 00000
County: Xxxxx County
----------------------------------------
3. INVOICING INFORMATION:
Street Address 0000 Xxxxxxx Xxxx
---------------------------------------------------------
City, State & Zip Code Xxxxxxx, XX 00000-0000
-------------------------------------------------
Department Accounts Payable
-------------------------------------------------------------
Person to Contact
Regarding Invoice Accounts Payable Clerk
------------------------------------------------------
Phone Number (000) 000-0000
-----------------------------------------------------------
Lessee Reference Number
to be Reflected on Invoice N/A
---------------------------------------------
80
4. LEASE TERM Thirty-six (36) months commencing November 1, 1996
5. RENT: The Rent during the Lease Term shall be payable in that number of
consecutive payments indicated below, in advance on the first day of each
month commencing November 1, 1996, and each Rent payment shall be in an
amount equal to the indicated percentage of Aggregate Acquisition Cost.
Equipment Payments Rent
--------- -------- ----
See
Exhibit A 1 - 36 $5,757.00
attached
At the expiration of the Lease Term, provided no Event of Default has
occurred and is continuing, Lessee may either (i) exercise the purchase
option set forth in Section 9 of this Schedule, or (ii) with ninety (90)
days' prior written notice to Lessor, return the Equipment in accordance
with Section 9 of the Lease Agreement. If Lessee does not exercise the
purchase option or provide Lessor with said ninety (90) days' notice, the
Lease Term shall automatically extend on a month-to-month basis, at the
Rent in effect at the expiration of the original Lease Term.
6. LATE CHARGE: Lessee shall pay a late charge of two percent (2%) each month
on any past due Rent or other amounts due and payable hereunder.
7. INSURANCE: In compliance with Section 13 of the Lease Agreement, Lessor
shall be included as an additional insured under the Lessee's comprehensive
general liability policy for bodily injury and property damage, and as loss
payee under the Lessee's all-risk property insurance policy, which policies
shall not be cancelled nor any reduction or restriction of coverage be
effected without thirty (30) days prior written notice to Lessor by
Certified Mail, Return Receipt Requested.
Bodily injury and property damage coverage shall provide for a minimum
requirement of $1,000,000 and physical damage for a minimum requirement
equal to the Casualty Value, subject to a deductible not in excess of
_____________.
Insurance Company _________________________
Contact & Telephone _______________________
Address ___________________________________
8. CASUALTY VALUE: The casualty value, as calculated from time to time by
Lessor, shall be equal to one hundred and two percent (102%) of the
Aggregate Acquisition Cost reduced over time by applying Rent payments
first to interest calculated at a rate per annum equal to the Prime Rate in
effect on the commencement date as published by the Wall Street Journal
plus two percent (2%), and second to reduce the unamortized principal
("Casualty Value"). In the event that the Lessor does not receive the
Casualty Value as provided for in the Lease Agreement on or before the Rent
payment date next following an Event of Loss, the Lessee shall pay the
Lessor for the period of time beginning with the
(Rev d 3/95)
81
SCHEDULE 4.5(e)
[PAGES 1-46 DELETED]
82
SCHEDULE 4.6
[PAGES 1-3 DELETED]
83
SCHEDULE 4.7
[PAGES 1-4 DELETED]
84
SCHEDULE 4.9
Schedule 4.9
COMMERCIAL PACKAGE
INSURER: Federal Insurance Company
A.M. Best Rating: A++ XIV
COMMERCIAL PROPERTY
PURPOSE:
Protection for your Business Property, including buildings, furniture, fixtures,
equipment (including stock) and improvements and betterments, subject to all
policy terms, conditions and exclusions.
INSURED LOCATION: LIMITS
----------------- ------
Business Personal Property Blanket Limit [ ]
LOC #1 - 0000 Xxxxxxx Xxxx
Xxxxxxx, XX 00000
Business Personal Property Value [ ]
Business Income with Extra Expense - [ ]
Personal Property of Others [ ]
Electronic Data Processing - Hardware [ ]
- Media [ ]
Boiler & Machinery [ ]
LOC #2 - 00 Xxxxxx Xxxxx Xxxx X
Xxxxxxxx, XX 00000
Business Personal Property [ ]
LOC #3 - Symphony Suites, 00 Xxxxxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Business Personal Property [ ]
Any Job Site/Warehouse Installation [ ]
Personal Property In Transit [ ]
Personal Property - Any Other Location [ ]
Newly Acquired Premises or Newly Acquired or Constructed Property - 180 days reporting
Building [ ]
Personal Property [ ]
EDP Media [ ]
EDP Equipment [ ]
EDP Media Duplicates [ ]
Fine Arts [ ]
85
Schedule 4.9
COMMERCIAL PROPERTY
COVERAGE ENHANCEMENTS
DIRECT DAMAGE
Blanket Limit including: [ ]
Accounts Receivable
Electronic Data Processing Property Fine Arts
Consequential Loss
Extra Expense
Fire Department Service Charges Improvements & Betterments
Personal Property of Employees Outdoor Trees, Shrubs, Plants, Lawns
Accounts Receivable In Transit [ ]
Debris Removal [ ]
Deferred Payments [ ]
Electronic Data Processing In Transit [ ]
Fine Arts In Transit [ ]
Installation-Any Job Site [ ]
Inventory or Appraisals [ ]
Monies & Securities - On Premises [ ]
- Off Premises [ ]
Personal Property Off Premises [ ]
Pollutant Clean-up & Removal [ ]
Valuable Papers - In Transit [ ]
BUSINESS INCOME
Any Other Location [ ]
Auditors Fees [ ]
Contractual Penalties [ ]
Dependent Business Premises [ ]
Loss of Utilities [ ]
Pollution Clean Up & Removal [ ]
Newly Acquired Premises [ ]
86
SCHEDULE 4.9
COMMERCIAL PROPERTY
COVERAGE:
Special Causes of Loss (All Risks), subject to policy exclusions; Replacement
Cost Valuation; Agreed Amount Personal Property and Business Income; Business
Income includes Ordinary Payroll, no limitation on Extended Period of Indemnity
DEDUCTIBLE:
Physical Damage Per loss [ ]
Business Income [ ]
Expiring Waiting period for Business Income is 24-hrs.
LOSS PAYEES: Bank One Colorado
87
SCHEDULE 4.9
CRIME
PURPOSE:
Protection for direct physical loss of money, securities and other property
caused by any fraudulent or dishonest act or acts committed by any employee
acting alone or in collusion with others, subject to all policy terms,
conditions and exclusions.
I
Includes E.R.I.S.A. Compliance
COVERAGE: LIMITS
Employee Dishonesty - Any One Occurrence [ ]
DEDUCTIBLE:
Maximum any one loss [ ]
88
Schedule 4.9
COMMERCIAL GENERAL LIABILITY
PURPOSE:
Protection for your legal liability to third parties arising from your premises
or operations, subject to all policy terms, exclusions and conditions.
COVERAGE: LIMITS
Per Occurrence Bodily Injury and
Property Damage Combined [ ]
Subject to Aggregate Limits (total policy limit):
General Policy Aggregate Limit (other than
Products & Completed Operations) [ ]
Products/Completed Operations Aggregate [ ]
Medical Expense (Any One Person) [ ]
Property Damage to Rented Real Property [ ]
Employee Benefits Errors Or Omissions (Claims Made)
$1,000 Deductible; 5/1/95 Retroactive Date
INCLUDING:
Broad Form Vendors as Additional Insureds
Lessors of Premises as Additional Insureds
Lessors of Leased Equipment as Additional Insureds
Blanket Contractual Liability
Broad Form Property Damage
Incidental Malpractice Liability
New Entity Coverage
Employees as Insureds
Premises/Operations Liability
Explosion, Collapse & Underground Liability
Independent Contractors Liability
Host Liquor Liability
Non-Owned Watercraft Liability under 551
Limited Worldwide Liability
89
SCHEDULE 4.9
COMMERCIAL GENERAL LIABILITY
NOTABLE CONDITIONS:
Extended Bodily Injury
Defense Costs In Addition to Limits
Broad Form Property Damage
Automatic Newly Acquired Organizations - 90-days
No Exclusion for Punitive Damages
Volunteer Workers as Insureds
Unintentional Errors & Omissions Wording
Discrimination - other than Employment Related Suits
NOTABLE-EXCLUSIONS:
Absolute Pollution & Contamination Liability
Asbestos and Nuclear Energy Liability
Care, Custody & Control Liability
ADDITIONAL INSUREDS:
Broward County Board of County Commissioners
City of Albuquerque
Bernalillo County, Albuquerque, NM
Fourth Roc-Jersey Associates & Chartwel Consulting
Group Inc. (New Jersey office)
90
RATING BASIS: RATE:
Gross Receipts:
Premises/Operations [ ] [ ]
Products [ ] [ ]
Employee Benefits [ ]
REMARKS:
l. Final premium is subject to audit of actual gross sales during the policy
period.
91
SCHEDULE 4.9
PROPOSAL
ELECTRONICS ERRORS & OMISSIONS LIABILITY
PURPOSE:
Protection against damages you may become legally obligated to pay as a result
of a claim arising out of a negligent act, error or omission or due to failure
of your electronic products to perform the function or serve the purpose
intended after installation and testing, subject to all policy terms, conditions
and exclusions.
LIMITS OF LIABILITY:
Per Claim [ ]
Annual Aggregate [ ]
DEDUCTIBLE:
Each Wrongful Act [ ]
NOTABLE CONDITIONS:
Claims Made Policy Form Retro Date 8/8/91
Claims Expense within Policy Limits
Includes Infringement of Copyright
NOTABLE EXCLUSIONS:
Bodily Injury, Personal Injury, Advertising Injury
Cost Guarantees
Infringement of Copyright, Trademark or Patent
Performance Delay
Dishonest, fraudulent, criminal acts
Product Recall
Property Damage
Security Breach
Theft of Intellectual Property
Unfair Competition or Piracy
Wear and Tear
Pollution
Professional Services other than those described
RATING BASIS: RATE:
Gross Receipts [ ] [ ]
REMARKS:
1. Final premium subject to audit of gross receipts
92
SCHEDULE 4.9
NON-OWNED & HIRED AUTOMOBILE
PURPOSE:
Protection for your legal liability to third parties arising from your use of
"any" NON-OWNED AND HIRED vehicle, subject to all policy terms, conditions and
exclusions.
COVERAGE: LIMITS
Per Occurrence Bodily Injury and Property Damage
Liability Combined Single Limit Each Accident [ ]
Hired Car Physical Damage [ ]
Comprehensive/Collision Deductible [ ]
93
SCHEDULE 4.9
WORKERS' COMPENSATION/EMPLOYER'S LIABILITY
INSURER: Federal Insurance Company
PURPOSE:
Coverage A - Workers Compensation agrees to pay the benefits required under the
Workers Compensation Law in States of Hire: CA,CO,IL,MD,TX,WI,NJ
Coverage B - Employers Liability provides coverage for your legal liability to
employees not covered by the act.
Coverage C - All States except those shown under Coverage A and Monopolistic
States NV, ND, OH, WA, WV, WY
COVERAGE: LIMITS:
Workers Compensation Statutory
Employers Liability -
Accident-each accident [ ]
Disease-policy limit [ ]
Disease-each employee [ ]
PREM SCH
CLASSIFICATION RATE DISC CR. EST. PAYROLL
----------------------------------------------------------------------------------------------
COLORADO
8810-Clerical [ ] [ ] [ ] [ ]
8742-Sales [ ] [ ]
5191-Installers [ ] [ ]
CALIFORNIA
8810-Clerical [ ] [ ] [ ]
8742-Sales [ ] [ ]
ILLINOIS
8742-Sales [ ] [ ] [ ]
MARYLAND
8742-Sales [ ] [ ] [ ]
NEW JERSEY
8742-Sales [ ] [ ]
TEXAS
8742-Sales [ ] [ ] [ ]
WISCONSIN
8742-Sales [ ] [ ] [ ]
Experience Modification: [ ]
94
SCHEDULE 4.9
UMBRELLA LIABILITY
INSURER: Federal Insurance Company
A.M. Best Rating: A++ XIV
NAMED INSTIRED:
SCC Communications Corporation
Public Safety Technology of Australia LTD
PURPOSE:
Provides liability protection for the catastrophe excess of the primary General
Liability, including Errors & Omissions, Automobile Liability and Employers
Liability limits, subject to all policy terms, conditions and exclusions.
COVERAGE: LIMIT:
Any one accident or occurrence and in the
aggregate, where applicable, Bodily Injury
and Property Damage Combined [ ]
SELF-INSURED RETENTION:
Applies to insured claims not covered by the primary NIL
policies
NOTABLE CONDITIONS:
Coverage is Following Form of underlying General
Liability, Automobile Liability and Employers Liability
policies
Policy is silent as regards Punitive Damages
Defense in Addition to Limits
NOTABLE EXCLUSIONS:
Property Damage Liability to Rented Property
Care, Custody or Control Liability
Fire, Explosion or Water Damage Legal Liability
Directors and Officers Liability
Employment Related Practices Liability
Uninsured Motorists Liability
ERISA Liability
Absolute Pollution Liability
95
SCHEDULE 4.9
FIDUCIARY LIABILITY
PURPOSE:
Protection from loss you become legally obligated to pay because of any claim
first made against you during the policy period, or extended reporting period,
for a WRONGFUL ACT committed or attempted, or allegedly committed or attempted,
before or during the policy period by you or any person for whose WRONGFUL ACT
you are legally responsible, subject to all policy terms, conditions and
exclusions. Wrongful Acts include liability arising form the administration,
interpretation, handling records or effecting enrollment, termination or
cancellation of employees under Benefit Programs.
LIABILITY: LIMITS:
Each loss and aggregate, including
Defense Costs [ ]
DEDUCTIBLE:
Claims against insured individuals not
covered by Sponsor Organization Indemnification None
Claims against insured individuals covered by
Sponsor Organization Indemnification, or
claims against Sponsor Organization [ ]
CONDITIONS:
"CLAIMS MADE"
Retrospective Date: 8/12/92
Extended Reporting Period: [ ]
96
SCHEDULE 4.9
PROPOSAL
FOREIGN COVERAGES
INSURED: Public Safety Technology of Australia LTD
PURPOSE:
Protection for your legal liability to third parties arising from your
International operations--premises or operations, use of hired and non-owned
vehicles and voluntary foreign workers compensation and employers liability
benefits, subject to all, policy terms, conditions and exclusions.
COVERAGE TERRITORY:
Worldwide excluding occurrences in the U.S.A., its
Territories, Possessions, Puerto Rico, Canada, Cuba,
Libya, North Korea, and Iraq.
COMMERCIAL GENERAL LIABILITY
COVERAGE LIMITS
-------- ------
Bodily Injury & Property Damage Liability
Combined Single Limit [ ]
Annual Aggregate [ ]
Hired and Non Owned Automobile [ ]
Fire Legal Liability . [ ]
Medical Payments [ ]
COVERAGE EXPOSURE RATE
Premises Ops [ ] [ ]
Products - Sales [ ] [ ]
Hired/
Non-owned Auto [ ] [ ]
ERRORS & OMISSIONS
COVERAGE LIMITS
-------- ------
Per Claim [ ]
Annual Aggregate [ ]
Deductible [ ]
Retroactive Date [ ]
EXPOSURE RATE
[ ] [ ]
97
SCHEDULE 4.9
FOREIGN COVEPAGE (CON'T)
WORKERS' COMPENSATION/EMPLOYER'S LIABILITY
COVERAGE LIMITS
Voluntary Workers Compensation Colorado
Benefits
Hires: U.S. Hires or U.S. Citizens
Employers Liability
Bodily Injury by Accident-each accident [ ]
Bodily Injury by Disease-including by
"endemic disease"-each employee [ ]
Bodily Injury by Disease-including by
"endemic disease,'-policy limit [ ]
Repatriation Expenses [ ]
EXPOSURE RATE
[ ] [ ] per person/trip
REMARKS:
No coverage for Third Country Nationals.
INTERNATIONAL PROPERTY
PURPOSE:
Protection for your Business Property, including buildings, furniture, fixtures,
equipment (including stock) and improvements and betterments, subject to al.1
policy terms, conditions and exclusions.
INSURED LOCATION: LIMITS
Queensland, Australia
Business Personal Property (EDP Equipment) [ ]
REMARKS:
Foreign exposures are subject to final audit
98
SCHEDULE 4.11(b)
SCHEDULE 4.11b COMPLIANCE WITH LAW/PERMITS
ASSET PURCHASE AGREEMENT BETWEEN SCC/PRINTRAK
SCHEDULE 4.11b COMPLIANCE WITH LAW/PERMITS
States in which SCC has a sales tax license:
California
Colorado
Florida
Illinois
Indiana
Louisiana
Michigan
Minnesota
Nebraska
Nevada
New Mexico
South Carolina - waiting for certificate (recently applied)
Tennessee
Texas
Utah
Wisconsin
99
SCHEDULE 4.13
SCHEDULE 4.11b COMPLIANCE WITH LAW/PERMITS
ASSET PURCHASE AGREEMENT BETWEEN SCC/PRINTRAK
SCHEDULE 4.13 CERTAIN TRANSACTIONS
SIGNALSOFT
ERG
XXXXXX GROUP
100
SCHEDULE 4.15
SCHEDULE 4.11b COMPLIANCE WITH LAW/PERMITS
ASSET PURCHASE AGREEMENT BETWEEN SCC/PRINTRAK
SCHEDULE 4.15 INTELLECTUAL PROPERTY
LRM 2.0
FRMS 2.0
FRMS 3.0
UDT
Open Query 1. 0
Premier CAD 5.6x
(working source and object)
CAD/RMS Documentation
CAD - Miscellaneous
L:\LIBRARY\WS\AWII
L:\LIBRARY\WS\S6S30
L:\LIBRAR'Y\WS\COMMCARD
L.\LIBRARY\WS\LIB
L:\LIBRARY\WS\PCCAD
L-\LEBRARY-\WS\QAT
L:\LIBRARY\WS\S6530
L-\LIBRARY\WS\TDD
L.-\LIBRARY\WS\TMD
SignalSoft - GGM
Pinpoint Technologies
Total Consulting Group - Interface
Xxxxxx Group - CAD developer
101
SCHEDULE 4.20
SCHEDULE 4.20 REPRESENTATIONS AND WARRANTIES
ASSET PURCHASE AGREEMENT BETWEEN SCC/PRINTRAK
SCHEDULE 4.20 REPRESENTATION AND WARRANTIES
Xxxxxx Xxxxxxxxx
Xxxxx Xxxxxxxx
Xxxx Xxxx
Xxxxxxx Xxxx
102
Appendix A
NonDiscrimination Compliance Agreement
Contractors shall comply with the applicable provisions of the following:
Exec. Order No. 12138, P.L. 95-507, Exec. Order Xx. 00000, Xxxx. Xxxxx Xx.
00000. Section 8 of the Small Business Act as amended, Railroad Revitalization
and Regulatory Reform Act of 1976. Exec. Order Xx. 00000, Xxxx. Xxxxx Xx. 00000.
Exec. Order No. 12138, Section 503 of the Rehabilitation Act of 1973 as amended
by XX00-000, Xxxxxxx Era Veteran's Readjustment Assistance Act of 1974 and the
rules, regulations and relevant Orders of the Secretary of Labor pertaining to
the Executive Orders and Statutes listed above.
For contracts of or which aggregate to $2,500 or more annually, the following
table describes the clauses which are included in the contract:
1. Inclusion of the Equal Employment clause in all contracts and orders;
2. Certification of non-segregated facilities;
3. Certification that an affirmative action program has been developed and
is being filed;
4. Certification that an annual Employers Information Report (EEO-1
Standard Form 100) is being filed;
5. Inclusion of the "Utilization of Minority and Women's Business
Enterprises" clause in all contracts and orders;
6. Inclusion of the "Minority and Women's Business Enterprise
Subcontracting Program" clause in all contracts and orders;
7. Inclusion of the "Listing of Employment Openings" clause in all
contracts and orders;
8. Inclusion of the "Employment of the Handicapped" clause in all
contracts and orders;
Contract Value Clause(s) Required
$2,500 to $10,000 8
$10,000 to $50,000 1,2,5,6,7,8
$50,000 or more 1,2,3*,4*,5,6,7,8
*Applies only for businesses with 50 or mor employees
1. Equal Employment Opportunity Provisions
In accordance with Exec. Order No. 11246, dated September 24, 1965 and Part 60-1
of Title 41 of the codes of Federal Regulations (Public Contracts and Property
Management, Office of Federal Contract Compliance, Obligations of Contractors
and Subcontractors), as may be amended from time to time, the parties
incorporate herein by this reference the regulations and contract clauses
required by those provisions to be made a part of Government contracts and
subcontracts.
2. Certification of Non-segregated Facilities
The contractor certifies that it does not and will not maintain any facilities
it provides for its employees in a segregated manner, or permit its employees to
perform their services at any location under its control where segregated
facilities are maintained and that it will obtain a similar certification prior
to the award of any non-exempt subcontract.
3. Certification of Affirmative Action Program
The contractor affirms that it has developed and is maintaining an affirmative
action plan as required by Part 60-2 of Title 41 of the Code of Federal
Regulations.
4. Certification of Filing of Employers Information Reports
The contractor agrees to file annually, on or before the 31st day of March,
complete and accurate reports on Standard Form 100 (EEO-1) or such forms as may
be promulgated in its place.
5. Utilization of Minority and Women's Business Enterprises
(a) It is the policy of the Government and BellSouth Corporation and its
affiliates as a Government contractor, that minority and women's business
enterprises shall have the maximum practicable opportunity to participate in the
performance of contracts.
(b) The contractor agrees to use his or her best efforts to carry out this
policy in the award of his or her fullest extent consistent with the efficient
performance of his contract. As used in this contract, the term "minority or
women's business enterprise" means a business with at least 51 percent of which
is owned by minority or women group members or in case of publicly owned
business, at least 51 percent of the stock of which is owned by minority or
women group members. For purposes of this definition, minority group members are
Blacks, Hispanics, Asians, Pacific Islanders, American Indian and Alaskan
Natives. Contractors may rely on written representation by subcontractors
regarding their status as minority or women's business enterprises in lieu of an
independent investigation.
6. Minority and Women's Business Enterprise Program
(a) The contractor agrees to establish and conduct a program which will enable
minority and women's business enterprises (as defined in paragraph 5 above) to
be considered fairly as subcontracts and suppliers under the contract. In this
connection, the Contractor shall:
(1) Designate a Liaison officer who will administer the contractor's minority
and women's business enterprises program;
(2) Provide adequate and timely consideration of the potentialities of known
minority and women's business enterprises in all "make-or-buy" decisions;
(3) Assure that known minority and women's business enterprises will have an
equitable opportunity to compete for subcontracts, particularly by arranging
solicitations, time for the preparation of bids, quantities, specifications, and
delivery schedules so as to facilitate the participation of minority and women's
business enterprises;
(4) Maintain records showing (i) procedures which have been adopted to comply
with the policies set forth in this clause, including the establishment of a
source list of minority and women's business enterprises, (ii) awards to
minority and women's business enterprises on the source list, and (iii) specific
efforts to identify and award contracts to minority and women's business
enterprises;
(5) Include the Utilization of Minority and Women's Business Enterprises clause
in subcontracts which offer substantial minority and women's business
enterprises subcontracting opportunities;
(6) Cooperate with the Government's Contracting Officer for BellSouth
Corporation or its affiliate in any studies and surveys of the contractor's
minority and women's business enterprise procedure and practices that the
Government's Contracting Officer may from time to time conduct;
(7) Submit periodic reports of subcontracting to known minority and women's
business enterprises with respect to the records referred to in sub-paragraph
(4) above, in such form and manner and at such time (not more often than
quarterly) on the Government's Contracting Officer for BellSouth Corporation or
its affiliate may prescribe.
(b) The contractor further agrees to insert, in any subcontract hereunder which
may exceed $500,000 (or in the case of WBE $1,000,000 in the case of contracts
for the construction of any public facility and which offer substantial
subcontracting possibilities) provisions which shall conform substantially to
the language of this Agreement, including this paragraph (b) and to notify the
Contracting Officer of the names of such subcontractors.
7. List of Employment Openings for Veterans
In accordance with Exec. Order 11701, dated January 24, 1973, and Part 60-250 of
Title 41 of the Code of Federal Regulations, as it may be amended from time to
time, the parties incorporate herein by this reference the regulations and
contract clauses required by those provisions to be made a part of Government
contracts and subcontracts.
8. Employment of the Handicapped
In accordance with Exec. Order 11758, dated January 15, 1974, and Part 60-741 of
Title 41 of the Code of Federal Regulations, as may be amended from time to
time, the parties incorporate herein by this reference the regulations and
contract clauses required by those provisions to be made a part of Government
contracts and subcontracts.
PRIVATE/PROPRIETARY/LOCK
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES
EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
