ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement") is dated as of the
17th day of June, 1996, by and between Extreme Communications, Inc. (the
"Purchaser"), an Illinois corporation, Communicate Direct, Inc. (the "Company"),
an Illinois corporation, and SoftNet Systems, Inc. ("SoftNet"), a New York
corporation, (the Company and SoftNet are sometimes referred to herein,
individually, as a "Seller" and, collectively, as the "Sellers").
R E C I T A L S:
A. Among Sellers' numerous lines of business is the sale of
non-applications oriented (low-tech) key systems (the "Business").
B. SoftNet owns all of the issued and outstanding voting stock of the
Company.
C. The Sellers desire to sell, and the Purchaser desires to purchase,
certain of the assets owned or used by the Company in connection with the
operation and conduct of the Business.
NOW, THEREFORE, in consideration of the premises, the mutual covenants
and agreements contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Purchaser and
the Sellers agree as follows:
ARTICLE I
Purchase and Sale of the Purchased Assets
1.1 Purchased Assets . Subject to the terms and conditions set forth in
this Agreement, the Company agrees to sell, transfer, assign, convey and deliver
to the Purchaser, and the Purchaser agrees to purchase, accept and acquire from
the Company those assets (the "Purchased Assets") necessary to market, develop
and expand Company's existing Business, including, without limitation, the
Panasonic DBS, Northern Telecom Meridian North Star and AVT voice mail products
(except as attached to Fujitsu products), including the specific accounts
receivable set forth on Schedule 1.1, Company's key systems customer list, all
ongoing revenue and business from existing key systems from moves, adds,
changes, service calls, upgrades and new systems and a perpetual royalty free
license to use the name "Communicate Direct", all free and clear of any security
interest, mortgage, lien, charge, restriction, encumbrance, conditional sale
agreement, claim, pledge or right of any party (collectively, "Liens"). The
Purchased Assets include, without limitation, all unfilled customer orders,
transferable Licenses (as hereinafter defined), sales literature and promotional
materials, customer lists, books, records and files used by Company solely in
connection with the Business. On the Closing Date, the Company shall deliver to
the Purchaser all of the Purchased Assets by bills of sale, assignments,
endorsements and other good and sufficient instruments of transfer necessary or
desirable to vest in the Purchaser good, complete and indefeasible title to the
Purchased Assets, free and clear of all Liens.
1.2 Further Assurances . From time to time after the Closing Date, at
the Purchaser's request and without further consideration therefor, the Sellers
shall perform, execute and deliver or cause to be performed, executed and
delivered, all such further acts, deeds, assignments, transfers, conveyances and
assurances as the Purchaser may reasonably require for the more effective
assigning, transferring, granting, conveying, selling, assuring and confirming
to the Purchaser and its successors and assigns, and for aiding and assisting in
reducing to possession, the Purchased Assets transferred or to be transferred
pursuant to this Agreement and as may be appropriate to carry out the
transactions contemplated hereby.
ARTICLE II
No Assumption of Liabilities
2.1 Non-Assumption of Liabilities . The parties expressly agree and
understand that the Purchaser shall assume no liabilities or obligations of the
Business or either of the Sellers. Sellers shall remain liable for each and
every liability of Sellers, including, without limitation, the following:
(i) any and all Taxes (as hereinafter defined) related or
attributable to any and all periods ending on or prior to the
Closing Date, as well as any and all Taxes incurred in connection
with the transactions contemplated hereby;
(ii) any and all fees, costs, expenses or other obligations
incurred by or on behalf of the Sellers in connection with this
Agreement or the transactions contemplated hereby, including,
without limitation, all fees to attorneys, investment bankers,
accountants or others for services rendered;
(iii) any and all brokers' or finders' fees, commissions or
like payments arising out of or based upon any act or omission of
the Sellers;
(iv) any and all liabilities based on any claim, suit or
proceeding alleging a violation of any federal, state or local
law, regulation, code or ordinance, including, without limitation,
product liability, employee safety, health or other laws, and any
other third party claims, resulting from any act or omission by
any of the Sellers which occurred on or prior to the Closing Date
and which relate to the Sellers, the Business or the Purchased
Assets;
(v) any and all liabilities, whether or not known to any of
the Sellers, based on, arising out of or otherwise in respect of
any act or omission of any of the Sellers or any other party, or
any event or condition on or off the premises of Company,
occurring at any time on or prior to the Closing Date and
regardless of when notice thereof is received, related to matters
of environmental protection, pollution, health, safety, or related
to warranty obligations in connection with products sold or
services rendered on or prior to the Closing Date, or related to
matters of unfunded or underfunded pension liabilities; and
(vi) any other liability, obligation, claim or commitment of
any of the Sellers (whether disclosed or undisclosed, fixed,
absolute, accrued, ordinary, extraordinary, contingent or
otherwise, direct or indirect, primary or secondary, known or
unknown), including, but not limited to, liability to Company's
employees under Company's benefit plans or COBRA.
2.2 Tail Insurance . Sellers agree to obtain and maintain adequate
business discontinuation (tail) insurance or occurrence-based insurance with
respect to the Business.
ARTICLE III
Purchase Price
3.1 Purchase Price . The total purchase price for all of the Purchased
Assets (the "Purchase Price") shall be Six Hundred Eighty-Four Thousand Dollars
($684,000).
3.2 Payment . Subject to the terms and conditions set forth herein,
Purchaser shall pay the Purchase Price by delivery of its nonrecourse
installment promissory note, a copy of which is attached as Exhibit A hereto and
made a part hereof.
3.3 Allocation of Purchase Price . The Purchaser and the Sellers hereby
agree that the Purchase Price shall be allocated among the Purchased Assets for
all purposes, including the filing of all tax returns and Internal Revenue
Service Form 8594, as $612,479.88 to the accounts receivable and the remainder
as Purchaser shall determine, subject to Company's consent which will not be
unreasonably withheld. Each party will promptly notify the other if the Internal
Revenue Service or any other taxing authority proposes to reallocate the
Purchase Price.
ARTICLE IV
Closing
4.1 Closing Date . The transactions contemplated by this Agreement
shall be consummated at a closing (the "Closing") to be held at 10:00 a.m. local
time at the offices of Sellers' counsel, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, on June ___, 1996, or on such
other date or at such other time or place as the parties may mutually determine
(the "Closing Date").
4.2 Deliveries by the Purchaser . At the Closing, the Purchaser shall
deliver to the Company the following:
(a) The installment promissory note, in substantially the
form attached hereto as Exhibit A;
(b) An opinion of ▇▇▇▇▇▇ & Coff, as counsel to the Purchaser,
dated as of the Closing Date, affirmatively opining to the matters
set forth in Sections 5.2(a) and (b);
(c) The Sublease (as defined in Section 6.3 hereof), executed
by Purchaser;
(d) The Administrative Services Agreement (as defined in
Section 6.4 hereof), executed by Purchaser;
(e) The Non-Competition Agreement (as defined in Section 6.5
hereof), executed by Purchaser; and
(f) Such other documents and certificates required to be
executed or delivered at the Closing in accordance with the terms
of this Agreement.
4.3 Deliveries by the Sellers . At the Closing, the Sellers shall
deliver to the Purchaser the following:
(a) Warranty ▇▇▇▇ of Sale substantially in the form of
Exhibit B attached hereto and made a part hereof, conveying the
tangible Purchased Assets to the Purchaser;
(b) Assignment substantially in the form of Exhibit C
attached hereto and made a part hereof, conveying the intangible
Purchased Assets to the Purchaser;
(c) An opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, as counsel to the
Sellers, dated as of the Closing Date, affirmatively opining to
the matters set forth in Sections 5.1(a), (b), (c) and (e).
(d) The Sublease, executed by the Company;
(e) The Administrative Services Agreement, executed by the
Company;
(f) The Non-Competition Agreement, respectively executed by
the Company and Sellers; and
(g) Such other documents and certificates required to be
executed or delivered at the Closing by one or more of the Sellers
in accordance with the terms of this Agreement.
ARTICLE V
Representations and Warranties
5.1 Representations and Warranties of the Sellers . Each of the Sellers
hereby represents and warrants to the Purchaser on and as of the date hereof and
on and as of the Closing Date as follows:
(a) Organization and Standing. The Company and SoftNet are
corporations duly organized, validly existing and in good standing
respectively under the laws of the States of Illinois and New
York. The Company is duly qualified to do business and is in good
standing in each jurisdiction in which the character of the
properties owned or held under lease by it or the nature of the
business transacted by it makes such qualification necessary or
where its failure to qualify to do business would adversely affect
the Company, its financial condition, its business or its ability
to perform the transactions contemplated by this Agreement. The
Company has all requisite corporate power and authority and all
requisite and sufficient licenses, franchises, permits and
authorizations (collectively, the "Licenses") to own and lease its
properties and assets, including the Purchased Assets, and to
carry on the Business as and where presently conducted. All
Licenses held by the Company in connection with the Business are
more particularly described on Schedule 5.1(a) attached hereto and
made a part hereof. Such Licenses are all of the Licenses
necessary to the conduct of the Business by the Purchaser and all
are included as part of the Purchased Assets. No governmental
proceeding is pending or threatened to cancel, modify or fail to
renew any such License.
(b) Corporate Action. The Company and SoftNet each have full
corporate power and authority to execute and deliver this
Agreement, to sell, assign, transfer and deliver the Purchased
Assets to the Purchaser, and otherwise to perform all of its
respective obligations hereunder and to consummate the
transactions contemplated hereby. All shareholder, corporate and
other proceedings required to be taken by or on the part of the
Company and SoftNet to execute, deliver and carry out this
Agreement and to authorize the Company to sell, assign, transfer,
convey and deliver the Purchased Assets to the Purchaser have been
duly and properly taken. Assuming the due authorization, execution
and delivery hereof by the Purchaser, this Agreement constitutes
the legal, valid and binding obligation of each of the Sellers,
enforceable in accordance with its terms, and all instruments of
transfer and other documents to be delivered in connection
herewith, when executed and delivered by such Sellers, will
constitute legal, valid and binding obligations of each of the
Sellers, enforceable in accordance with their respective terms.
(c) Negation of Default. The execution and delivery of this
Agreement by each Seller, its compliance with the terms hereof and
its consummation of the transactions contemplated hereby will not
violate, conflict with or result in a breach of any provision of
the Articles of Incorporation or by-laws of the Company or
SoftNet, respectively, or (whether with due notice or lapse of
time or otherwise) constitute a default, require the consent of
any third party which has not been received, give rise to any
right of acceleration or result in the creation of any Lien under,
or otherwise result in a breach or violation of, any contract,
agreement, lease, commitment, indenture, mortgage, trust deed,
note, bond, debenture, License or other instrument or obligation,
or any judgment, order or decree of any court, administrative
agency or other governmental authority, to which any of the
Sellers is a party or otherwise subject or by which any of the
Sellers or any of their respective properties (including the
Purchased Assets) may be bound. No notice is required to be given
to any state, local or other governmental authority to consummate
the transactions contemplated hereby or to transfer the Purchased
Assets free of any state, local or other statutory Lien.
(d) Title to Purchased Assets. The Sellers have and will
convey to the Purchaser good and marketable title to all of the
Purchased Assets, free and clear of any Liens. All of the
Purchased Assets, including claims, contracts, orders, leases,
licenses and other rights, are assignable without the prior
consent of any third party or, if prior consent is required, such
consent has been obtained.
(e) Litigation. There are no claims, actions, suits, legal or
administrative proceedings, governmental investigations or any
labor matters pending or to Sellers' knowledge threatened against
or adversely affecting the Sellers, the Business or any of the
Purchased Assets, nor to Sellers' knowledge any basis for any such
claim, action, suit, legal or administrative proceeding,
governmental investigation or labor matter. There are no
judgments, decrees, settlements, orders, rulings, writs or
injunctions involving the Sellers, the Business or any of the
Purchased Assets which (either by reason of compliance or default)
may adversely affect the Sellers, the Business or any of the
Purchased Assets, or which relate in any way to the transactions
contemplated by this Agreement.
(f) Taxes. All Taxes due or to become due by reason of the
Purchased Assets or the operation of the Business by the Company
or by Sellers' other businesses prior to the Closing Date have
been or will be paid when due. There are no Tax Liens upon any
property or assets of any of the Sellers pertaining to the
Business. There is no examination or proceeding pending by any
authority or agency relating to the assessment or collection of
any Taxes, or any interest or penalties thereon, due from any
Seller, nor does any Seller know of any basis for any such
assessment. For purposes of this Agreement, "Tax" or "Taxes" shall
mean all taxes, including, without limitation, income, capital
stock, gross receipts, net proceeds, ad valorem, value added,
goods and services, turnover, sales, use, real estate transfer,
real property, personal property (tangible and intangible), stamp,
leasing, lease, user, excise, franchise, transfer, fuel, vehicle
sales, excess profits, occupational and interest equalization,
unitary, severance, withholding, employment and other taxes,
duties, assessments, imposts and charges (including, without
limitation, the recapture of any tax items such as investment tax
credits), together with all interest, penalties and additions
imposed with respect to such amounts, which are due or claimed to
be due by federal, state or local taxing authorities or which are
payable with respect to the Business, operations or property of
any Seller.
(g) Accounts Receivable. All accounts receivable of the
Company which are reflected on Schedule 1.1 (a) have no current
right of counter-claim or set-off against them; and (b) are owned
by the Company free of any Liens, ▇▇▇▇▇▇ or inchoate, liquidated
or unliquidated. Sellers make no representation or warranty as to
the collectability of such accounts receivable.
(h) Misstatement or Omission. There are no material facts
relating to the Purchased Assets, liabilities, earnings,
properties or operations of the Business which have not been
disclosed to the Purchaser in writing in this Agreement or the
schedules or exhibits hereto. No representation or warranty by the
Sellers in this Agreement or in any other agreement, document or
instrument executed in connection herewith, including any exhibit,
schedule, written statement, certificate or other document
furnished or to be furnished by the Sellers pursuant hereto or
thereto or in connection with the transactions contemplated hereby
or thereby, contains or will contain any untrue statement of a
material fact, or omits or will omit to state a material fact
required to be stated herein or therein necessary to make the
statements contained herein or therein not misleading. Copies of
all documents heretofore furnished by the Sellers to the Purchaser
are true, correct and complete copies of such documents, including
all amendments or modifications thereto.
5.2 Representations and Warranties of the Purchaser . The Purchaser
hereby represents and warrants to the Sellers on and as of the date hereof and
on and as of the Closing Date as follows:
(a) Organization and Standing. The Purchaser is a corporation
duly organized, validly existing and in good standing under the
laws of the State of Illinois. The Purchaser has all requisite
corporate power and authority and all requisite and sufficient
licenses, franchises, permits and authorizations to own and lease
its properties and assets and to carry on its business as and
where currently conducted.
(b) Corporate Action. The Purchaser has full corporate power
and authority to execute and deliver this Agreement, to purchase
the Purchased Assets from the Sellers, and otherwise to perform
all of its obligations hereunder and to consummate the
transactions contemplated hereby. All corporate and other
proceedings required to be taken by or on the part of the
Purchaser to authorize, execute, deliver and carry out this
Agreement and to purchase the Purchased Assets have been duly and
properly taken. Assuming the due authorization, execution and
delivery hereof by the Sellers, this Agreement constitutes the
legal, valid and binding obligation of the Purchaser, enforceable
in accordance with its terms, and all other documents to be
delivered in connection herewith, when executed and delivered by
the Purchaser, will constitute legal, valid and binding
obligations of the Purchaser, enforceable in accordance with their
respective terms.
ARTICLE VI
Covenants and Agreements
6.1 Satisfaction of Liabilities . From and after the Closing Date, the
Sellers agree to pay, perform and otherwise satisfy in full when due all of
their liabilities and obligations which relate to or which may affect the
Business or the Purchased Assets. It is recognized and agreed that any failure
by the Sellers to comply with the foregoing may adversely affect the Business or
the Purchased Assets, or both, as well as the benefits available to the
Purchaser from the transactions contemplated hereby, and that the Purchaser has
a legitimate interest in assuring such liabilities and obligations are properly
paid, performed and satisfied. In the event that the Purchaser shall pay,
perform or otherwise satisfy any such liabilities or obligations, either
inadvertently or, after not less than ten (10) days' prior notice to the Sellers
thereof, because the Purchaser deems it necessary to do so in order to preserve
the good will of customers, vendors, employees or other third parties, the
Sellers jointly and severally agree to reimburse the Purchaser therefor not
later than ten (10) business days after receipt of notice thereof from the
Purchaser.
6.2 Employment Matters . Schedule 6.2 attached hereto lists those
individuals who are employed by the Company and the portion of their total
compensation attributable to the Business, along with similar estimates of the
cost necessary to hire additional personnel as part of Purchaser's initial sales
force.
6.3 Sublease . On or before the Closing Date, the Purchaser and the
Company shall enter into a sublease agreement substantially in the form of
Exhibit D attached hereto and made a part hereof (the "Sublease").
6.4 Administrative Services Agreement . On or before the Closing Date,
the Purchaser and the Company shall enter into an administrative services
agreement substantially in the form of Exhibit E attached hereto and made a part
hereof (the "Administrative Services Agreement").
6.5 Non-Competition Agreement . On or before the Closing Date, the
Purchaser and the Sellers shall enter into a non-competition agreement
substantially in the form of Exhibit F attached hereto and made a part hereof
(the "Non-Competition Agreement").
6.6 Company's Inventory . Company agrees to maintain its existing
Business key systems inventory in good and saleable condition. To the extent
Purchaser needs to purchase such inventory items, Purchaser shall, from time to
time, purchase portions of such inventory at Company's direct cost on an if and
as needed basis.
6.7 Customer Installation, Servicing and Warranty Repair. Purchaser
shall perform or subcontract out all of its installation, service, warranty and
repair work. At Purchaser's option, Sellers will receive and process telephone
calls, including online help, work order preparation, dispatch and work order
closure, for all service, warranty and repair work. Sellers shall ▇▇▇▇ Purchaser
for all such calls at a rate of Fifty Dollars ($50) per call. To the extent
Purchaser selects Sellers, or their affiliates, to perform any service, warranty
or repair work, Sellers shall perform such work on a competitive basis and all
profit from such work is to be split fifty-fifty (50/50) between Purchaser and
Sellers.
6.8 Shortfall Reimbursement . To the extent, if any, that Purchaser
accrues a net operating loss for the first twelve (12) consecutive months
following Closing exclusive of depreciation, bad debts, sales and marketing
expenses and expenses in excess of $662,665 in connection with its sales force
(in the aggregate, a "Shortfall"), Sellers shall reimburse Purchaser to the
extent of such Shortfall, to a maximum of One Million Dollars ($1,000,000) in
the aggregate. The Shortfall shall be computed and recomputed as of the end of
each month, and the net Shortfall, if any, shall be paid immediately after
notice of such Shortfall. To the extent that any reimbursable Shortfall is not
paid by Sellers immediately after such notice, Purchaser may offset such
Shortfall against the next payments due under the installment promissory note to
the extent of such amounts. During the first twelve (12) consecutive months
following Closing, Purchaser shall operate the Business in a commercially
reasonable manner.
6.9 Purchaser's Advertising Commitment . During the fifteen (15) month
period subsequent to Closing, Purchaser will invest Five Hundred Thousand
Dollars ($500,000) or more in (a) outdoor, radio and print advertising, and (b)
additional costs and expenses, including, but not limited to, salaries,
commissions, benefits, etc., in connection with expanding Purchaser's initial
sales force.
6.10 Right of First Refusal . If Buyer receives an offer to purchase
all or substantially all of its assets or all or substantially all of its stock
(in a private transaction, not a public offering) during the five (5) year
period subsequent to Closing, such that ▇▇▇▇ ▇▇▇▇▇▇ shall no longer own or
control Purchaser, directly or indirectly, Purchaser will notify SoftNet of such
offer and grant SoftNet thirty (30) days to match such offer in all respects,
including closing such transaction. If SoftNet declines to consummate such
purchase, Purchaser shall be free to thereafter accept such offer and close such
transaction, provided that the ultimate terms of such transaction are not
materially different than as presented to SoftNet.
ARTICLE VII
Indemnification
7.1 Sellers' Indemnification .
(a) Notwithstanding any investigation by the Purchaser, its
attorneys or any of its agents or representatives, the representations,
warranties and covenants of the Sellers set forth herein, or in any
document or instrument delivered in connection herewith or pursuant
hereto, and the liabilities of the Sellers with respect thereto, shall
survive the Closing.
(b) The Sellers, jointly and severally, agree to indemnify,
defend and hold the Purchaser and its shareholders, directors,
officers, employees, agents, representatives, successors and assigns
harmless from and against any and all Losses imposed on, accrued
against, sustained or incurred by such indemnitees or any one of them
resulting from or arising out of or by virtue of: (i) any
misrepresentation or breach of warranty made herein by the Sellers or
non-compliance with, non-performance of or breach by the Sellers of any
of the covenants of this Agreement to be performed by the Sellers; and
(ii) any and all liabilities arising out of or in connection with the
conduct of the Business on or prior to the Closing Date or Sellers'
other operations.
7.2 Purchaser's Indemnification .
(a) The representations, warranties and covenants of the
Purchaser set forth herein, or in any document or instrument delivered
in connection herewith or pursuant hereto, and the liabilities of the
Purchaser with respect thereto, shall survive the Closing.
(b) The Purchaser agrees to indemnify, defend and hold the
Sellers, their shareholders, directors, officers, employees, agents,
representatives, successors and assigns harmless from and against any
and all Losses imposed on, accrued against, sustained or incurred by
such indemnitees or any one of them resulting from or arising out of or
by virtue of: (i) any misrepresentation or breach of warranty made
herein by the Purchaser or non-compliance with or breach by the
Purchaser of any of the covenants of this Agreement to be performed by
the Purchaser; and (ii) any and all liabilities and obligations arising
out of or in connection with the conduct of the Business by the
Purchaser after the Closing Date.
7.3 Losses . For purposes of this Agreement, "Losses" shall mean all
claims, actions, proceedings, judgments, causes of action, liabilities (whether
fixed, absolute, accrued, contingent or otherwise and whether direct or
indirect, primary or secondary, known or unknown), losses, demands, costs,
assessments, damages, interest, penalties or expenses (including, without
limitation, reasonable attorneys' fees and expenses and costs of litigation).
ARTICLE VIII
Miscellaneous
8.1 Notices . Any notice, request, instruction or other communication
to be given hereunder by any party hereto shall be in writing and shall be
deemed to have been duly given on the date of delivery, provided delivery is
actually tendered at the appropriate address, addressed to the persons
identified below (i) in person, or (ii) by courier service, or (iii) by
facsimile copy (with original copy mailed the same day), or (iv) three (3) days
after deposit in the U.S. mails by first class certified mail, postage prepaid,
return receipt requested, all addressed as set forth below:
(i) If to the Sellers, to:
SoftNet Systems, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, President
Telephone No.: (▇▇▇)▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇)▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone No.: (▇▇▇)▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇)▇▇▇-▇▇▇▇
(ii) If to the Purchaser, to:
Extreme Communications, Inc.
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇
Telephone No.: (▇▇▇)▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇)▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇ & Coff
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone No.: (▇▇▇)▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇)▇▇▇-▇▇▇▇
or to such other person or persons at such address or addresses as may be
designated by written notice to the other party pursuant to this Section 8.1.
8.2 Severability . If any provision of this Agreement is found invalid,
unenforceable or in violation of any law by a court of competent jurisdiction,
such provision shall be modified only to the extent necessary to enable such
provision to be valid and enforceable, without affecting the remaining portions
of this Agreement, which shall remain in full force and effect.
8.3 Mutual Contribution . The parties to this Agreement and their
counsel have mutually contributed to its drafting. Consequently, no provision of
this Agreement shall be construed against any party on the ground that such
party drafted the provision or caused it to be drafted, or the provision
contains a covenant of such party.
8.4 Waivers . No delay on the part of any party in exercising any
right, power or privilege shall operate as a waiver thereof, nor shall any
waiver of any right, power or privilege operate as a waiver of any other right,
power or privilege, nor shall any single or partial exercise of any right, power
or privilege preclude any other or further exercise thereof or of any other
right, power or privilege. The rights and remedies herein provided are
cumulative and are not exclusive of any rights or remedies which the parties
otherwise may have at law or in equity.
8.5 Applicable Law . This Agreement is governed by and shall be
construed and enforced in accordance with the internal laws of the State of
Illinois.
8.6 Waiver of Jury Trial . EACH OF THE PARTIES HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHTS THEY EACH MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH THIS AGREEMENT OR ANY OTHER DOCUMENT OR INSTRUMENT DELIVERED TO
THE OTHER AS OF THE DATE HEREOF, PRIOR THERETO OR THEREAFTER, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF
THE PARTIES HERETO. EACH OF THE PARTIES ACKNOWLEDGES AND AGREES THAT IT HAS
RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH OTHER
PROVISION OF EACH OTHER DOCUMENT OR INSTRUMENT TO WHICH IT IS NOW OR WILL BE IN
THE FUTURE A PARTY) AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR SUCH
PARTY ENTERING INTO THIS AGREEMENT AND EACH SUCH OTHER DOCUMENT OR INSTRUMENT.
8.7 Counterparts . This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be duly executed as of the date first written above.
PURCHASER: SELLERS:
EXTREME COMMUNICATIONS, INC. COMMUNICATE DIRECT, INC.
By: By:
________________________ _______________________
Its: Its:
________________________ _______________________
SOFTNET SYSTEMS, INC.
By:
_______________________
Its:
_______________________
LIST OF SCHEDULES AND EXHIBITS
Schedules
Schedule 1.1 Accounts Receivable
Schedule 5.1(a) Licenses
Schedule 6.2 Employees
Exhibits
Exhibit A Installment Promissory Note
Exhibit B Warranty Bills of Sale
Exhibit C Assignment
Exhibit D Sublease
Exhibit E Administrative Services Agreement
Exhibit F Non-Competition Agreement