PURCHASE AGREEMENT
This Purchase Agreement ("Agreement") is made on January 30, 2004, by
and between Silicon Mountain Memory Incorporated, a Colorado corporation
("Buyer"), and Super PC Memory, Inc., a California corporation ("Seller").
WITNESSETH
WHEREAS, Seller, among other things, is currently engaged in the sale
of memory for desktops, laptops, and low-end Window/Intel ("Wintel") type
servers and attached printers, all hereinafter referred to as "Wintel
Products"; and
WHEREAS, Buyer desires to acquire a portion of Seller's customer
information and rights to do business with said customers with respect to
Wintel Products and to have Seller withdraw from the sale of Wintel Products;
and Seller is willing to transfer to Buyer such customer information and
rights as are transferable, and to withdraw from the sale of Wintel Products
to said customers, subject to the provisions of Section 5.3 below;
NOW THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements hereinafter set forth, the parties hereto agree as
follows:
ARTICLE 1 TRANSFER OF CUSTOMER INFORMATION
Section 1.1 Transfer of Customer Information. Subject to and in
reliance upon the provisions of this Agreement, at the Closing, as described
below, Seller shall assign and transfer over to Buyer its complete currently
available customer lists for all customers for Wintel Products, appropriately
formatted to Buyer's reasonable needs, including all addresses, phone
numbers and other contact information. Included therein shall be available
historical sales records and the identity of the primary Seller employee
contacts responsible for each customer account. All customer contracts, to
the extent assignable, will be included to the extent desired by Buyer. All
customer lists and related information will be exclusively assigned to Buyer,
except that Seller and Cambex Corporation may continue to use such lists and
information; provided that, until any termination of this Agreement pursuant
to Section 2.4 below, and indefinitely once the full purchase price has been
paid to Seller, any information related to the assigned customer lists which
is retained by Seller will be kept maximally confidential by Seller and
Cambex Corporation and used only for their own sales and marketing usage
and will not otherwise be used, disclosed or in any other manner revealed to
any third parties absent the express written consent of Buyer. Buyer agrees
that, until the full purchase price is paid to Seller, any information
related to the assigned customer lists which is delivered to Buyer hereunder
will be kept maximally confidential by Buyer and used only for its own sales
and marketing usage and will not otherwise be used, disclosed or in any
other manner revealed to any third parties absent the express written consent
of Seller.
Section 1.2 Hiring by Buyer of Seller's Employees. Upon the
Closing of the transaction, Seller shall be deemed to have agreed, and to
have waived any objections, to any hiring of Seller's employees sought by
Buyer; provided that if the purchase herein described is not Closed, Buyer
agrees that it shall not hire any of Seller's employees, as provided in
Section 6.9 below.
Section 1.3 Closing. The transfer of the customer information
contemplated by this Agreement shall be consummated at a closing (the
"Closing") which will take place on or before February 1, 2004, or on such
other date as may be agreed by the parties, and may be effected, in whole or
in part, through the transmission of documents and funds through mail,
recognized private carrier, fax, electronic communication or other generally
accepted means of transmission.
ARTICLE 2. PAYMENTS TO BE MADE BY BUYER
Section 2.1 Definition of "Seller Customer" and Other Terms. For
purposes of determining payments to be made by Buyer to Seller pursuant to
this Agreement, an assigned customer will be deemed a "Seller Customer"
(plural "Seller Customers"), in the event (a) said customer has not done
business with Buyer but has done business with Seller, in calendar year
2003; (b) said customer has done more business with Seller than Buyer in the
last six (6) months of calendar 2003; (c) said customer has done some
business with Seller in the last six (6) months of calendar 2003 and over
the calendar year 2003, has done four (4) times more business with Seller
than Buyer; or (d) any other customers which the parties subsequently agree
should be included. "Seller Database Customers" are customers who purchased
from Seller in the past but who did not purchase from Buyer in the last six
months plus any who otherwise qualify as Seller Customers as defined above.
"Database Customers" are any customers in Seller's database who have
purchased Wintel Products.
Section 2.2 Total Purchase Price to Be Paid by Buyer. The total
purchase price to be paid by Buyer is One Million and Fifty Thousand Dollars
($1,050,000) subject to allocation as to cash or note payments, the exact
amount and terms of payment to be dependant upon the revenues generated by
Buyer from Seller Customers.
Section 2.3 Payment Due at Closing. At Closing, Buyer will make a
first payment of Thirty-Five Thousand Dollars ($35,000), and Seller, will
provide the delivery of the required customer data.
Section 2.4 Monthly Payments after Closing. For each month
commencing with April, 2004, Buyer shall make a determination of Gross
Profit, as hereinafter described, from Seller Customers. It shall make this
determination of Gross Profit on the same basis as it uses for calculating
sales commissions and in the same way it has done it in the past, as outlined
on the attached Exhibit A. Beginning on May 15, 2004, and on or before the
15th day of each month, Buyer shall make a payment to Seller based upon Gross
Profit for the preceding month in accordance with the formula set forth
below. With each such payment, Buyer shall deliver to Seller a report setting
forth its calculation of Gross Profit for such month and its calculation of
the payment due to Seller based upon such formula.
If the Gross Profit is less than One Hundred Thousand Dollars ($100,000), the
payment shall be twenty- five percent (25%) of the Gross Profit.
If the Gross Profit is between One Hundred Thousand Dollars ($100,000) and
One Hundred and Forty Thousand Dollars ($140,000), the payment shall be the
amount of Thirty-Five Thousand Dollars ($35,000.00).
If the Gross Profit is in excess of One Hundred and Forty Thousand Dollars
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($140,000), the payment shall be thirty-five percent (35%) of the Gross
Profit.
Buyer shall continue to make these monthly payments to Seller until the
total amount of payments to Seller has reached the total purchase price of
One Million and Fifty Thousand Dollars ($1,050, 000) at which time Buyer
shall have been deemed to have fulfilled its payment obligations hereunder,
subject to the following terms and conditions.
If for any month, as a result of the Gross Profit being less than One
Hundred Thousand Dollars ($100,000), the payment due for that month is
less than Thirty-Five Thousand Dollars ($35,000), then any shortfall below
Thirty-Five Thousand Dollars ($ 35,000) shall be deemed an "underpayment"
and Buyer shall, by the 15th day of the month execute and deliver to Seller a
promissory note payable to Seller for the amount of the underpayment, plus
interest at one percent (1%) over the Wall Street Journal prime, each said
note to be payable no later than September 1, 2006. The promissory note shall
be in the form of the attached Exhibit B.
If at any time the total amount of the underpayments described in the
preceding paragraph exceeds One Hundred and Fifty Thousand Dollars
($150,000), Seller will have the right to demand the return of all customer
information previously conveyed to Buyer, and this Agreement will thereafter
be terminated in all respects except for the confidentiality obligations of
Buyer and Seller provided in this Agreement , with all prior payments and
promissory notes to be retained by Seller; provided, however, that before
exercising any such rights, Seller must first notify Buyer in writing of the
intent to so terminate the Agreement and afford Buyer a cure period of
fifteen (15) days within which to reduce the total balance of all
underpayments to an amount less than One Hundred and Fifty Thousand Dollars (
$150,000).
Additionally, if at any time the total amount of underpayments exceeds
the amount of One Hundred and Fifty Thousand Dollars ($150,000.), Buyer will
have the option to offer a return of all customer information transferred
under this Agreement which, if accepted by Seller, within fifteen (15) days
of receipt of Buyer's offer, and in consideration thereof, will result in a
release and termination of all previously executed promissory notes or
remaining obligations of Buyer, including a termination of this Agreement,
with all prior payments to be retained by Seller. In the event that Seller
fails to accept such an offer of Buyer, then Buyer's promissory note
obligations for underpayments shall remain payable to Seller, no later than
September 1, 2006, no new underpayments will be calculated or accrued, and,
additionally, Buyer, on a monthly basis by the 15th of each month, shall pay
twenty five percent (25%) of the Gross Profits from all Seller Customer
business through September 1, 2006. Upon any termination of this Agreement
other than for non-performance by Seller, Buyer's rights to use any customer
information transferred by Seller shall terminate; provided that once the
full purchase price has been paid to Seller, there shall be no termination of
Buyer's said rights hereunder.
Section 2.5 Terms Applicable to Payments by Buyer to Seller.
Unless Seller otherwise instructs in writing, all payments to Seller under
this Agreement will be due and payable at Seller's address set forth in
Section 7.2 below, and without deduction for withholding or other taxes, bank
fees, or any other fees, Subsequent to ten (10) days written notice to Buyer
with rights to cure, Seller will have the right to charge Buyer a delinquent
payment service charge on any amounts not paid when due at a rate equal to
one percent (1.0%) per month. Buyer shall maintain accurate books and records
of all sales to Seller Customers and the Gross Profit and
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resulting payments payable to Seller in connection therewith. Upon
reasonable notice to the Buyer, Seller will have the right, once per calendar
quarter, during business hours, and at its expense, to audit the books and
records of Buyer relating to such sales and the calculation of Gross Profit.
If such audit discloses an underreporting or failure to pay of greater than
three percent (3%), Buyer shall promptly reimburse Seller for all its costs
relating to the audit. In any event, Buyer will promptly pay Seller all
unpaid amounts with interest at the rate of one percent (1.0 %) per month.
Buyer shall reimburse Seller for any legal fees and related costs incurred by
Seller to enforce its rights under this Agreement.
If Buyer fails to make any payment, cash and/or promissory notes,
when due and after any applicable cure period as provided above, Seller will
have the right to declare all remaining payments, including any then
outstanding promissory notes, immediately due and payable, and it shall be
entitled to the return of all Assets previously transferred to Buyer.
Seller's right to exercise this remedy shall be subject to the condition that
it notifies Buyer in writing of such failure, and it gives Buyer thirty
(30) days to cure such failure, and Buyer fails to cure such failure within
such thirty (30) day period; provided that if Buyer transacts an unusually
large sale with over Fifty Thousand ( $50,000) Gross Profit, which involves
slow payment, Seller shall not exercise these acceleration rights insofar as
they relate to such unusually large sale, provided that Buyer makes payment
to Seller with respect to such sale promptly upon its receipt of payment
therefor and in any event within ninety (90) days of the sale. Furthermore,
if a majority of the ownership or control of the Buyer's business is to be
transferred to a person (or persons) who is in competition with Seller in the
Unix market, Buyer shall ask Seller to approve the transfer in writing and
Seller shall not unreasonably withhold its approval. If, however, Buyer
proceeds with such a transfer without Seller's said written approval, not to
be unreasonably withheld, Seller may exercise this right to acceleration by
written notice to Buyer.
ARTICLE 3 REPRESENTATIONS AND WARRANTIES REGARDING SELLER
Seller hereby makes the following representations and warranties
to Buyer:
Section 3.1 Organization and Good Standing. Seller is a corporation
duly organized, validly existing and in good standing under the laws of the
state of its incorporation.
Section 3.2 Authority to Perform. Seller has full corporate power
and authority to execute, deliver and perform this Agreement and each
agreement, document and instrument to be executed and delivered by Seller
pursuant to or as contemplated by this Agreement and to carry out the
transactions contemplated hereby. The execution, delivery and performance of
this Agreement has been duly authorized by all necessary corporate action of
Seller and no other corporate action on the part of Seller is required in
connection therewith. This Agreement constitutes the valid and binding
obligation of Seller enforceable in accordance with its terms. The execution,
delivery and performance by Seller of this Agreement does not violate the
charter or Bylaws of Seller or materially violate any laws, rules or
regulations of the United States or any state or other jurisdiction
applicable to Seller.
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Section 3.3 Financial Information. That, to be best of its knowledge,
Seller's financial information, as provided to Buyer, including the history
of Seller's sales to customers, is a fair and accurate presentation of the
results of the operations of the Seller for the periods included therein.
Seller makes no warranty concerning the future performance or profitability
of the assigned customers.
Section 3.4 Litigation. That to the best of Seller's knowledge, there
is no litigation or proceeding, threatened or pending, against or relating to
Seller, its properties, business or assets; nor does Seller know or have
reasonable grounds to know of any basis of any such action or governmental
investigation relative to Seller, its properties, business or assets, which
litigation, proceeding or governmental investigation would interfere with
Seller's performance of its obligations under this Agreement.
Section 3.5 Judgments. That there are no outstanding judgments,
orders, injunctions, awards or decrees of any court, arbitrator, or
governmental or regulatory body against or involving the Seller or its
assets.
Section 3.6 Liens. That Buyer shall receive the assets, and all other
rights acquired herein, free and clear of any liens, claims or encumbrances
whatsoever.
Section 3.7 No Breach. That Buyer's intended sale of Wintel Products
to Seller's customers will not violate, conflict or otherwise result in the
breach or violation of any of the terms and conditions in any instrument,
contract or other agreement to which the Seller is a party.
Section 3.8 No Broker. That no broker, finder, agent or similar
intermediary has acted for or on behalf of the Seller in connection with this
Agreement or the transactions contemplated hereby, with entitlement to any
brokers, finders, agents or similar fee or other commission in connection
with this Agreement.
Section 3.9 Survival. That the above representations and warranties
of Seller shall survive the Closing of this Agreement.
ARTICLE 4 REPRESENTATIONS AND WARRANTIES REGARDING BUYER
Buyer hereby makes the following representations and warranties
to Seller:
Section 4.1 Organization and Good Standing. Buyer is a corporation
duly organized, validly existing and in good standing under the laws of the
state of its incorporation.
Section 4.2 Authority to Perform. Buyer has full corporate power and
authority to execute, deliver and perform this Agreement and each agreement,
document and instrument to be executed and delivered by Buyer pursuant to or
as contemplated by this Agreement and to carry out the transactions
contemplated hereby. The execution, delivery and performance of this
Agreement has been duly authorized by all necessary corporate action of Buyer
and no other corporate action on the part of Buyer is required in connection
therewith. This Agreement constitutes the valid and binding obligations of
Buyer enforceable in accordance with its terms The execution, delivery and
performance by Buyer of this Agreement does not and will not
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violate the charter or Bylaws of Buyer or materially any laws, rules or
regulations of the United States or any state or other jurisdiction
applicable to Buyer
Section 4.3 Financial Information. That, to be best of its
knowledge, Buyer's financial information, as provided to Seller, is a fair
and accurate presentation of the results of the operations of the Seller for
the periods included therein. Buyer makes no warranty concerning the future
performance or profitability of the assigned customers.
Section 4.4 Litigation. That to the best of Buyer's knowledge, there
is no litigation or proceeding, threatened or pending, against or relating to
Buyer, its properties, business or assets; nor does Buyer know or have
reasonable grounds to know of any basis of any such action or governmental
investigation relative to Buyer, its properties, business or assets, which
litigation, proceeding, or governmental investigation would interfere with
Buyer's performance of its obligations under this Agreement..
Section 4.5 Judgments. That there are no outstanding judgments,
orders, injunctions, awards or decrees of any court, arbitrator, or
governmental or regulatory body against or involving the Buyer or its assets.
Section 4.6 No Breach. That Buyer's intended sale of Wintel Products
to Seller's customers will not violate, conflict or otherwise result in the
breach or violation of any of the terms and conditions in any instrument,
contract or other agreement to which the Buyer is a party.
Section 4.7 No Broker. That no broker, finder, agent or
similar intermediary has acted for or on behalf of the Buyer in connection
with this Agreement or the transactions contemplated hereby, with entitlement
to any brokers, finders, agents or similar fee or other commission in
connection with this Agreement.
Section 4.8 Survival. That the above representations and
warranties of Buyer shall survive the Closing of this Agreement.
ARTICLE 5 POST CLOSING OBLIGATIONS OF THE PARTIES.
Section 5.1 Transition of Customers. The Parties shall mutually and
reasonably cooperate, employing their commercially reasonable best efforts,
to transition the assigned customers to Buyer. Specifically, for a period of
sixty (60) days after Closing, Seller shall use its best efforts to effect
arrangements to route all incoming customer inquiries, whether via phone, fax
or email, related to Wintel Products business, to Buyer. Additionally,
within said sixty (60) days after Closing, Seller shall permanently assign
and transfer over to Buyer its toll free number: 1-800-752-1109. Through
calendar 2004, Buyer shall forward and/or provide details to Seller of any
calls it receives on this number except for calls which relate exclusively to
Wintel Products. Further, and in contemplation that during the transition
period some purchase orders and payments will need to be made employing the
name "Super PC", Seller shall endorse over to Buyer all checks and other
payment items payable to the name "Super PC" for Buyer fulfilled orders. If
these checks and other payment items for Buyer fulfilled orders but payable
to the
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name "Super PC" are received by Buyer and Buyer desires to expedite the
negotiation of such checks and other payment items, it shall fax to Seller
copies of such checks and other payment items with sales orders/other
supporting materials evidencing that they were in payment of Buyer fulfilled
orders, and unless Seller objects by fax or other writing within two (2)
business days, Buyer shall have a limited power of attorney to endorse theses
checks and other payment items. Further, Buyer shall have a limited right of
usage of the trade name "Super PC " for purposes of effectively invoicing the
assigned customers for Buyer fulfilled orders employing the name "Super PC ".
In all cases, however, all payments and receivables on orders taken and
fulfilled by Buyer shall be and remain for all purposes Buyer's receivables
only. If Buyer receives any checks or other payments for orders taken and
fulfilled by Seller, it shall deliver such checks and other payments to
Seller and shall endorse over to Seller any such checks payable to Buyer. If
these checks and other payment items for Seller fulfilled orders but payable
to the name " Silicon Mountain Memory" are received by Seller and Seller
desires to expedite the negotiation of such checks and other payment items,
it shall fax to Buyer copies of such checks and other payment items with
sales orders/other supporting materials evidencing that they were in payment
of Seller fulfilled orders, and unless Buyer objects by fax or other writing
within two (2 ) business days, Seller shall have a limited power of attorney
to endorse these checks and other payment items. If Seller receives any
checks or other payments for orders taken and fulfilled by Buyer, it shall
deliver such checks and other payments to Buyer and shall endorse over to
Buyer any such checks payable to Seller.
Section 5.2 Buyer Performance of Customer Service for Seller Delivered
Products. Subsequent to Closing, Buyer will provide all reasonable customer
service, including technical support, trouble shooting and return merchandise
authorizations and/or replacements, to all Database Customers with respect to
products delivered by Seller. For any amounts less than One Thousand Dollars
($1,000), Buyer shall have the authority to execute return merchandise
authorizations with respect to these Seller delivered products, and Seller
shall reimburse Buyer for "Net Product Costs", as defined in the following
sentence, which exceed Ten Thousand Dollars ($10,000) in any calendar
quarter, within thirty (30) days. "Net Product Costs", as used herein, shall
mean the Buyer's purchase cost of replacement parts or components minus the
value of any returned items. For any returned merchandise authorization
request in excess of One Thousand Dollars ($1,000), Buyer shall obtain
Seller's approval and authorization before issuing the return authorization,
which Seller shall not unreasonably withhold. In the event Seller refuses to
authorize a return merchandise authorization request in excess of One
Thousand Dollars ($1,000), then Seller shall thereafter assume full
responsibility for that customer's claim and will agree to hold Buyer
harmless therefor.Except for the undertaking to perform customer service as
set forth in this Section 5.2, Buyer assumes no responsibilities or
liabilities whatsoever with respect to Seller's acts, or omissions or any
state of facts or events pertaining to Seller existing or occurring prior to
Closing, for all of which Seller shall remain solely responsible as between
Seller and Buyer.
Section 5.3 Seller's Agreement to Not Sell in Competition with Buyer.
From and after Closing, and unless Buyer refuses to sell such products to
Seller, Seller will not sell any Wintel Products to any Database Customer
unless such products are purchased from or through Buyer. This covenant shall
terminate, however, and Seller may sell free of this restriction, at any
time at least thirty (30) months after the date of this Agreement if
Seller has returned to Buyer the
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purchase price payments previously received by Seller from Buyer.
Section 5.4 Buyer's Agreement to Not Sell in Competition with
Seller. Similarly, from and after Closing, unless Seller refuses to sell such
products to Buyer, Buyer will not sell any UNIX products to any Seller
Database Customers until the purchase price has been paid in full, unless
said products are purchased from or through Seller or Cambex Corporation.
ARTICLE 6 INDEMNIFICATION
Section 6.1 Indemnification by Seller. Seller agrees to indemnify
Buyer, its directors, officers, shareholders and affiliates against any
direct (but not indirect, consequential, or incidental ) loss, cost, expense,
damage or liability (including, without limitation, interest at the rate of
12% per annum on money expensed from the date expended and attorneys fees and
other expenses incurred in defending against litigation, either threatened or
pending) incurred or sustained by any one or more of them with respect to or
arising out of any breach of or incorrectness of any representation or
warranty made by Seller in or pursuant to this Agreement or failure by Seller
to perform or comply with any covenant or agreement made by it in or pursuant
to this Agreement.
Section 6.2 Indemnification by Buyer. Buyer agrees to indemnify
Seller, its directors, officers, shareholders and affiliates against any
direct (but not indirect, consequential, or incidental ) loss, cost, expense,
damage or liability (including, without limitation, interest at the rate of
12% per annum on money expended from the date expended and attorney fees and
other expenses incurred in defending against litigation, either threatened or
pending) incurred or sustained by any one or more of them with respect to or
arising out of any breach of or incorrectness of any representation or
warranty made by Buyer in or pursuant to this Agreement or failure by Buyer
to perform or comply with any covenant or agreement made by it in or pursuant
to this Agreement.
Section 6.3 Right of Setoff. If, and in the event, after Closing,
Buyer receives notice of any matter which has or may result in any loss,
cost, expense, damage or liability for which Seller has an obligation of
indemnification, Buyer shall promptly provide Seller written notification of
such matter. Seller shall have a period of thirty (30) days to assume,
discharge, or undertake in good faith the assumption or discharge, including
the commencement of an appropriate action to dispute the validity, of such
matter. In the event Seller fails to so assume, discharge or undertake the
matter within the referenced time period, Buyer may elect to satisfy the
loss, cost, expense, damage or liability arising from such matter. If the
Buyer elects to so proceed, Buyer shall have the right to receive a credit,
in the amounts incurred or paid to resolve the matter, which credit, at
Buyers option, shall be applied either to the next unpaid principal amount or
the next due installments, of any promissory note, or against any other
obligations due and owing in connection with this Agreement. Except as
specifically provided in this Section 6.3, Buyer shall have no right of
setoff under this Agreement.
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ARTICLE 7 MISCELLANEOUS
Section 7.1 Law Governing. This Agreement shall be construed under and
governed by the internal laws, and not the law of conflicts, of the State of
Colorado.
Section 7.2 Notices. Every notice or other communication required,
contemplated, or permitted by this Agreement by any party, shall be in
writing and shall be delivered either by personal delivery, private courier
service, or postage prepaid return receipt requested, certified or registered
mail, addressed to the party to whom intended at the following address:
To Buyer: Silicon Mountain Memory Incorporated
3220 Prairie Ave
Boulder, CO 80301
Attention: R.A. Tre' Cates, President
Facsimile: (303) 938-1166
With a copy to: ST.CLAIR & GRESCHLER, P.C
3100 Araphoe Ave., Suite 503 Boulder, Colorado 80303
Attention: Scott A. St.Clair, Esq.
Facsimile: 303-440-8708
To Seller: Super PC Memory, Inc.
115 Flanders Road
Westboro, MA 01581
Attention: Joseph F. Kruy, President
Facsimile: (508) 983 -0255
With a copy to: Edward J.Cutter, Esq.
21 Wilson Street
Hopkinton, MA 01748
Facsimile: (508) 435-2208
or at such other address as the intended recipient previously shall have
designated by written notice. Notice by courier or certified or registered
mail shall be effective on the date it is officially recorded and delivered
to the intended recipient by return receipt or the date of attempted delivery
where delivery is refused by the intended recipient. All notices and
communications required or permitted to be delivered in person shall be
deemed to have been delivered to and received by the addressee, and shall be
effective, on the date of personal delivery.
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Section 7.3 Assignability. This Agreement, and any of the obligations
hereunder, shall not be assignable, in whole or in part by Buyer without the
prior written consent of Seller, and any purported assignment shall be null
and void. This Agreement shall be binding upon and enforceable by, and shall
inure to the benefit of, the parties hereto and their respective successors,
heirs, executors, administrators and permitted assigns, and no others.
Section 7.4 Fees and Expenses. Each party shall pay its own expenses
and costs associated with the preparation of this Agreement and the
consummation of the transactions contemplated herein.
Section 7.5 Captions. The captions in this Agreement are for
convenience only and shall not affect the construction or interpretation of
any term or provision hereof.
Section 7.6 Execution in Counterparts. For the convenience of the
parties and to facilitate execution, this Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of
which shall constitute one and the same document.
Section 7.7 Certain Remedies; Severability. The remedies provided in
this Agreement are not intended to be exclusive and each party shall be
entitled to enforce all of its rights herein by all remedies available as a
matter of law or equity. In case any of the provisions contained in this
Agreement shall for any reason be held to be invalid, illegal or
unenforceable in any respect, any such invalidity, illegality or
unenforceability shall not affect any other provision of this Agreement, but
this Agreement shall be construed as if such invalid, illegal or
unenforceable provision had been limited or modified (consistent with its
general intent) to the extent necessary to make it valid, legal and
enforceable.
Section 7.8 Amendments, Waiver. This Agreement may not be amended or
modified except by a writing duly and validly executed by Buyer and Seller.
Delay on the part of a party in exercising any right, power or privilege
hereunder shall not operate as a waiver thereof, nor shall any waiver on the
part of any party of any such right, power or privilege, preclude any further
exercise thereof or the exercise of any other such right, power or privilege.
Section 7.9 Confidentiality. This Agreement and the express terms and
conditions hereof will maximally remain confidential between the parties
hereto. No releases, or other discussion of the contents hereof shall occur
with any other parties without the express written consent of all parties
hereto, except as necessary for review by the parties' accountants, lawyers
and other professional advisors, and except as required by law, including
securities laws, regulations and requirements, or a court order.
Notwithstanding the foregoing, subsequent to Closing, the parties shall
mutually agree on a public announcement to contain a general description of
the Buyer's acquisition and continuing fulfillment of the Seller's Wintel
business. Further, in the event the transactions contemplated by this
Agreement are not Closed, each party agrees that (i) it shall keep
confidential any information disclosed to each other in connection herewith
for a period of three (3) years from the date hereof, provided, however, that
such obligation shall not apply to any information which a) at the time of
disclosure was public knowledge; b) at the time of disclosure was previously
known to the disclosing parties, or, c) after the time of disclosure becomes
public knowledge; and (ii) for a period of one (1) year from the date
hereof, it shall not solicit to hire, or hire, or otherwise retain in any
capacity, any person who has been an employee
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of the other party during the past one (1) year or is an employee during
such period of one (1) year.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date set forth above.
BUYER: SILICON MOUNTAIN MEMORY INCOPORATED
By: /s/R.A. Tre' Cates
R.A.Tre' Cates, President
SELLER: SUPER PC MEMORY, INC.
By: /s/ Joseph F. Kruy
Joseph F. Kruy, President